[Federal Register Volume 88, Number 202 (Friday, October 20, 2023)]
[Notices]
[Pages 72461-72476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23261]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2023-012; FRL 10787-03-OAR]


California State Nonroad Engine Pollution Control Standards; 
Ocean-Going Vessels At-Berth; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of decision.

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SUMMARY: The Environmental Protection Agency (``EPA'') is granting the 
California Air Resources Board's (``CARB'') request for authorization 
of

[[Page 72462]]

amendments to its Ocean-Going Vessels At-Berth regulation (``At-Berth 
Regulation''). CARB's At-Berth Regulation specifies auxiliary engine 
emission reduction requirements applicable to container, refrigerated, 
cargo, cruise, roll on-roll off (ro-ro), and tanker vessels (also 
emission reduction requirements to tanker vessel auxiliary boilers) 
while docked or ``berthed'' at specified marine terminals and ports in 
California. This decision is issued under the authority of the Clean 
Air Act (``CAA'' or ``Act'').

DATES: Petitions for review must be filed by December 19, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2023-0152. 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 website is http://www.epa.gov/oar/docket.html. The electronic mail (email) address for the Air and 
Radiation Docket is: <a href="/cdn-cgi/l/email-protection#13723e727d773e613e577c70787667537663723d747c65"><span class="__cf_email__" data-cfemail="2e4f034f404a035c036a414d454b5a6e4b5e4f00494158">[email protected]</span></a>, 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 website, enter EPA-HQ-OAR-2023-0152 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 and authorization 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: https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Attorney-Advisor, 
Office of Transportation and Air Quality, U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460. Email: 
<a href="/cdn-cgi/l/email-protection#b4d0ddd7dfdddac7dbda9ad0d5c2ddd0f4d1c4d59ad3dbc2"><span class="__cf_email__" data-cfemail="75111c161e1c1b061a1b5b1114031c11351005145b121a03">[email protected]</span></a>. Telephone: 202-343-9256.

SUPPLEMENTARY INFORMATION:

I. Background

    CARB adopted the initial At-Berth Regulation, the Airborne Toxic 
Control Measure for Auxiliary Diesel Engines Operated on Ocean-Going 
Vessels At-Berth in a California Port (2007 At-Berth Regulation), on 
October 16, 2008, and EPA granted California an authorization for that 
regulation in 2011.\1\ The 2007 At-Berth Regulation applied only to 
fleets of container, refrigerated cargo, and cruise vessels visiting 
six California ports. The 2007 At-Berth Regulation required affected 
vessels to reduce emissions at berth by either plugging into shore 
power or using an equally effective compliance strategy (such as a 
capture and control system). Specifically, the 2007 At-Berth Regulation 
required fleets of container and refrigerated cargo vessels making 25 
or more visits or cruise vessels making 5 or more visits to any of the 
six identified ports to limit the operations and emissions of auxiliary 
diesel engines while docked, reducing nitrogen oxide (NO<INF>X</INF>) 
and diesel particulate matter (PM) emissions at berth.\2\
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    \1\ 76 FR 77515 (Dec. 13, 2011).
    \2\ CARB defines an ``auxiliary engine'' as ``an engine on an 
ocean-going vessel designed primarily to provide power for uses 
other than propulsion, except that all diesel-electric engines shall 
be considered ``auxiliary engines'' for purpose of this regulation. 
'' Cal. Code Regs. Tit. 17, section 93130.2(b)(9).
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    On September 27, 2022, CARB submitted a new authorization request 
to EPA for its amendments to the 2007 At-Berth Regulation the CARB 
Board adopted on August 27, 2020 (2020 At-Berth Amendments).\3\ The 
2020 At-Berth Amendments are designed to build upon the 2007 At-Berth 
Regulation by extending auxiliary engine emissions reductions 
requirements to additional categories of ocean-going vessels (OGVs), 
specifically roll on-roll off (ro-ro) and tanker vessels. The 2020 At-
Berth Amendments also added emission reductions requirements for tanker 
vessel auxiliary boilers and expanded the applicability of the 
regulation to additional regulated terminals and ports within 
California.\4\
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    \3\ CARB At-Berth Authorization Request, EPA-HQ-OAR-2023-0152-
0031.
    \4\ A regulated California marine terminal is any terminal in 
California that receives 20 or more visits from container, reefer, 
cruise, ro-ro, or tanker vessels per calendar year the year 
emissions control requirements begin. Cal. Code Regs. Tit. 17, 
section 93.130.10(a)(2).
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    The 2020 At-Berth Amendments establish, among other provisions, in-
use emissions-related requirements that apply beginning January 1, 
2023, with limited exceptions, to any person who owns, operates, 
charters, or leases any United States or foreign-flag OGV that visits a 
California port, terminal, or berth; any person who owns, operates, or 
leases a port, terminal, or berth located where OGVs visit; or any 
person who owns, operates, or leases a CARB approved emissions control 
strategy (CAECS) for OGV auxiliary engines or tanker auxiliary 
boilers.\5\ The 2020 At-Berth Amendments establish emission controls 
that phase in during three separate periods. The requirements are 
applicable to container, reefer, and cruise vessels on January 1, 2023, 
all ro-ro vessels and tankers visiting the ports of Los Angeles or Long 
Beach on January 1, 2025, and tankers visiting all ports other than Los 
Angeles and Long Beach on January 2, 2027.\6\ Compliance with the 2020 
At-Berth Amendments must be achieved through the use of a CARB Approved 
Emission Control Strategy (CAECS).\7\
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    \5\ Compliance with the 2020 At-Berth Amendments must be 
achieved through the use of a CAECS that meets the minimum 
requirements of section 93130.5(d) of the Amendments. The strategy 
may include the use of shore power but may also include alternative 
CAECS such as barge or land-based capture and control technologies 
not controlled by the vessel or terminal operator. The owners of 
such alternative technologies are subject to CARB's regulations.
    \6\ CARB states that the tanker implementation dates are 
staggered due to fewer infrastructure upgrade challenges expected at 
the ports subject to a 2025 compliance date. CARB At-Berth 
Authorization Request at 8.
    \7\ A summary of CARB's At-Berth Regulation can be found at 
CARB's At-Berth Authorization Request at 6 to 18. CARB's At-Berth 
Authorization Request noted that the no ocean going vessel at berth 
or at anchor in California waters may emit visible emissions of any 
air pollutant for a period or periods aggregating three minutes in 
any hour of operation on the vessel that doesn't meet either of 2 
different measurements. CARB also noted that ``The opacity 
requirements constitute in-use controls, or characteristics or 
measures that limit the use of nonroad engines and accordingly do 
not require EPA authorization action. CARB also addressed comments 
during its rulemaking, similar to comments EPA received during the 
authorization proceeding, that the opacity requirements are emission 
standards and that imposing such standards at anchorage infringes on 
Internation Maritime Organization and international engine standards 
to which the United States is a party. CARB noted in part that the 
opacity requirements are part of its general opacity standards under 
California's Health and Safety Code section 41701. See CARB FSOR at 
208-209. Because CARB did not seek EPA approval or authorization of 
the opacity requirement EPA is not taking any action or position 
with regard to the requirement or its enforceability. EPA's decision 
to not act on CARB's opacity requirement only pertains to 
California's regulation and does not relate to EPA's regulatory 
authority to regulate opacity. In the event CARB submits the 
requirement along with its At-Berth regulation to EPA as part of a 
state implementation plan (SIP) revision request then it may be 
proper to evaluate its enforceability at that time.

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[[Page 72463]]

II. Principles Governing This Review

A. Clean Air Act Nonroad Engine and Vehicle Authorizations

    CAA section 209(e)(1) prohibits states and local governments from 
adopting or attempting to enforce any standard or requirement relating 
to the control of emissions from certain new nonroad vehicles or 
engines.\8\ The CAA also preempts states from adopting and enforcing 
standards and other requirements related to the control of emissions 
from all other nonroad engines or vehicles.\9\ CAA section 
209(e)(2)(A), however, requires the Administrator, after notice and 
opportunity for public hearing, to authorize California to adopt and 
enforce standards and other requirements relating to the control of 
emissions from such vehicles or engines not preempted by CAA section 
209(e)(1) if California determines that California standards will be, 
in the aggregate, at least as protective of public health and welfare 
as applicable Federal standards. However, EPA shall not grant such 
authorization if it finds that (1) the protectiveness determination of 
California is arbitrary and capricious; (2) California does not need 
such standards to meet compelling and extraordinary conditions; or (3) 
California standards and accompanying enforcement procedures are not 
consistent with CAA section 209.
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    \8\ CAA section 209(e)(1) prohibits states or any political 
subdivision from adopting or enforcing any standard or other 
requirement relating to the control of emissions from new engines 
which are used in construction equipment or vehicles or used in farm 
equipment or vehicles, and which are smaller than 175 horsepower, or 
new locomotives or new engines used in locomotives. See 40 CFR 
1074.10(a).
    \9\ See CAA section 209(e)(2), 42 U.S.C. 7543(e). See 40 CFR 
1074(b). Therefore, states and localities are categorically 
prohibited from regulating the control of emissions from new nonroad 
vehicles and engines set forth in section 209(e)(1) of the CAA, but 
``all other'' nonroad vehicles and engines (including non-new 
engines and vehicles otherwise noted in 209(e)(1) and all other new 
and non-new nonroad engines and vehicles) are preempted unless and 
until preemption is waived. See EPA's nonroad preemption rulemakings 
at 59 FR 36969 (1994) and revised in 1997 (62 FR 67733). EPA notes 
that Appendix A to 40 CFR part 1074, subpart A sets out EPA's 
interpretation of what types of state nonroad engine use and 
operation provisions are not preempted by section 209.
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    On July 20, 1994, EPA promulgated a rule (``the 1994 rule'') that 
sets forth, among other things, regulations providing the criteria, as 
found in CAA section 209(e)(2), which EPA must consider before granting 
any California authorization request for new nonroad engine or vehicle 
emission standards.\10\ EPA revised these regulations in 1997.\11\
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    \10\ 59 FR 36969 (July 20, 1994).
    \11\ 63 FR 18978 (April 16, 1998). These regulations were later 
recodified to 40 CFR part 1074, 73 FR 59397 (October 8, 2008). 
Similar to the language in CAA section 209(e)(2)(A), 40 CFR 1074.105 
provides the criteria for EPA's consideration of authorization 
requests:
    (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 (42 U.S.C. 
7543).
    (c) In considering any request to authorize California 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 explained below, EPA has interpreted and implemented the first 
two authorization criteria at section 209(e)(2)(A)(i) and 
209(e)(2)(A)(ii) in the same manner as the corresponding first two 
waiver criteria at section 209(b)(1)(A) and 209(b)(1)(B) (applicable to 
on-road motor vehicles). Because of the unique language in section 
209(e)(2)(A)(iii) (the third authorization criteria), EPA has provided 
additional information as to the interpretation and implementation of 
that criterion. As stated in the preamble to the 1994 rule, EPA has 
historically interpreted the CAA section 209(e)(2)(A)(iii) ``consistent 
with section 209'' inquiry to require that California standards and 
enforcement procedures be consistent with CAA sections 209(a), 
209(e)(1), and 209(b)(1)(C) (as EPA has interpreted that subsection in 
the context of CAA section 209(b) motor vehicle waivers).\12\ In order 
to be consistent with CAA 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 CAA 
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 CAA 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 CAA section 
209(b)(1)(C), the Administrator shall not grant California a motor 
vehicle waiver if he finds that California ``standards and accompanying 
enforcement procedures are not consistent with section 202(a)'' of the 
CAA. Previous decisions granting waivers and authorizations have noted 
that state standards and enforcement procedures are inconsistent with 
CAA 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.\13\ When considering whether to grant authorizations for 
accompanying enforcement procedures tied to standards (such as record 
keeping and labeling requirements) for which an authorization has 
already been granted, EPA has evaluated (1) whether the enforcement 
procedures are so lax that they threaten the validity of California's 
determination that its standards are as protective of public health and 
welfare as applicable Federal standards, and (2) whether the Federal 
and California enforcement procedures are consistent.\14\
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    \12\ 59 FR at 36982-83.
    \13\ Id. See also 78 FR 58090, 58092 (Sept. 20, 2013).
    \14\ See Motor & Equipment Manufacturers Association v. 
Environmental Protection Agency (MEMA I), 627 F.2d 1095, 1112 (D.C. 
Cir. 1979). California certification test procedures need not be 
identical to the Federal test procedures to be ``consistent.'' 
California procedures would be inconsistent, however, if 
manufacturers would be unable to meet both the state and Federal 
test requirements with the same test vehicle in the course of the 
same test. See, e.g., 43 FR 32182, (July 25, 1978).
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    In light of the similar language of sections 209(b) and 
209(e)(2)(A), EPA has reviewed California's requests for authorization 
of nonroad vehicle or engine standards under section 209(e)(2)(A) using 
the same principles that it has historically applied in reviewing 
requests for waivers of preemption for new motor vehicle or new motor 
vehicle engine standards under section 209(b).\15\ These principles 
include, among other things, that EPA should limit its inquiry to the 
three specific authorization criteria identified

[[Page 72464]]

in section 209(e)(2)(A),\16\ and that EPA should give substantial 
deference to the policy judgments California has made in adopting its 
regulations. In previous waiver decisions, EPA has stated that Congress 
intended EPA's review of California's decision-making be narrow. EPA 
has rejected arguments that are not specified in the statute as grounds 
for denying a waiver:
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    \15\ See Engine Manufacturers Association v. EPA, 88 F.3d 1075, 
1087 (D.C. Cir. 1996): ``. . . EPA was within the bounds of 
permissible construction in analogizing Sec.  209(e) on nonroad 
sources to Sec.  209(a) on motor vehicles.''
    \16\ 59 FR at 36983, note 12.

    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 California air 
quality not commensurate with its costs 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.\17\
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    \17\ ``Waiver of Application of Clean Air Act to California 
State Standards,'' 36 FR 17458 (Aug. 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 
must determine that its standards are, in the aggregate, at least as 
protective of public health and welfare as applicable Federal 
standards. In the 1990 amendments to section 209, Congress 
established section 209(e) and similar language in section 
209(e)(1)(i) pertaining to California's nonroad emission standards 
which California must determine to be, in the aggregate, at least as 
protective of public health and welfare as applicable federal 
standards.

    This principle of narrow EPA review has been upheld by the U.S. 
Court of Appeals for the District of Columbia Circuit.\18\ Thus, EPA's 
consideration of all the evidence submitted concerning an authorization 
decision is circumscribed by its relevance to those questions that may 
be considered under section 209(e)(2)(A).
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    \18\ See, e.g., MEMA I.
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B. Deference to California

    In previous waiver and authorization decisions, EPA has recognized 
that the intent of Congress in creating a limited review based on 
specifically listed criteria was to ensure that the Federal government 
did not second-guess state policy choices. As the Agency explained in a 
prior waiver decision: ``It is worth noting . . . I would feel 
constrained to approve a California approach to the problem which I 
might also feel unable to adopt at the federal level in my own capacity 
as a regulator . . . Since a balancing of risks and costs against the 
potential benefits from reduced emissions is a central policy decision 
for any regulatory agency under the statutory scheme outlined above, I 
believe I am required to give very substantial deference to 
California's judgments on this score.'' \19\ Similarly, EPA has stated 
that the text, structure, and history of the California waiver 
provision clearly indicate both a Congressional intent and appropriate 
EPA practice of leaving the decision on ``ambiguous and controversial 
matters of public policy'' to California's judgment.\20\ This 
interpretation is supported by relevant discussion in the House 
Committee Report for the 1977 Amendments to the CAA. Congress had the 
opportunity through the 1977 Amendments to restrict the preexisting 
waiver provision but elected instead to expand California's flexibility 
to adopt a complete program of motor vehicle emission controls. The 
report explains that the amendment is intended to ratify and strengthen 
the preexisting California waiver provision and to affirm the 
underlying intent of that provision, that is, to afford California the 
broadest possible discretion in selecting the best means to protect the 
health of its citizens and the public welfare.\21\
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    \19\ See, ``California State Motor Vehicle Pollution Control 
Standards; Waiver of Federal Preemption,'' 40 FR 23102, 23103 (May 
28, 1975).
    \20\ Id. at 23103-04.
    \21\ MEMA I, 627 F.2d 1095 1110 (D.C. Cir. 1979) ((citing H.R. 
Rep. No. 294, 95th Cong., 1st Sess. 301-02 (1977)).
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C. Burden and Standard of Proof

    In MEMA I the Court stated that the Administrator's role in a CAA 
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.'' \22\ The Court in MEMA I considered the standard of proof 
under CAA 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.'' \23\ 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.\24\ 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.\25\ 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.
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    \22\ MEMA I, 627 F.2d at 1122.
    \23\ Id.
    \24\ Id.
    \25\ Id.
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    Although MEMA I did not explicitly consider the standard of proof 
under CAA section 209 concerning a waiver request for ``standards,'' as 
compared to accompanying enforcement 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.'' \26\ Opponents of 
the waiver or authorization bear the burden of showing that the 
criteria for a denial of California's waiver or authorization request 
have been met. As found in MEMA I, this obligation rests firmly with 
opponents of the waiver or authorization in a CAA section 209 
proceeding:
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    \26\ 80 FR 76468, 76471 (December 9, 2015).

    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.\27\
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    \27\ MEMA I, 627 F.2d at 1121.

    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 or authorization decision. As the Court in MEMA I stated: 
``here, too, if the Administrator ignores evidence demonstrating that 
the waiver should

[[Page 72465]]

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.' '' \28\ 
Therefore, the Administrator's burden is to act ``reasonably.'' \29\
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    \28\ Id. at 1126.
    \29\ Id.
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D. EPA's Administrative Process in Consideration of California's 
Request

    On March 17, 2023, EPA issued a notice for comment regarding CARB's 
authorization request for the 2020 At-Berth Amendments.\30\ The notice 
requested the public provide EPA with comment on issues relevant to 
EPA's consideration of the request along with an opportunity to request 
a public hearing. EPA did not receive a request for a public hearing. 
Consequently, EPA did not hold a public hearing. The written comment 
period remained open until May 1, 2023.\31\ EPA's decision in this 
notice only pertains to the authorization request related to the 2020 
At-Berth Amendments.\32\
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    \30\ See ``California State Nonroad Engine Pollution Control 
Standards; Ocean-Going Vessels At-Berth and Commercial Harbor Craft; 
Requests for Authorization; Opportunity for Public Hearing and 
Comment'' 88 FR 16439 (March 17, 2023).
    \31\ EPA's March 17, 2023, Federal Register notice also included 
notice of an opportunity for public hearing and written comment on a 
separate authorization request from California regarding amendments 
to its Commercial Harbor Craft (CHC) regulation. EPA did receive a 
request for public hearing for the CHC authorization request and 
announced a hearing date and extended comment period associated with 
that request, see 88 FR 25636, April 27, 2023. EPA's actions 
regarding the CHC authorization request did not affect EPA's 
consideration of CARB's 2020 At-Berth Amendments request and EPA did 
not extend the written comment period for the At-Berth request.
    \32\ EPA's March 17, 2023, notice indicated that EPA will 
separately and independently evaluate the 2020 At-Berth Amendments 
and the 2022 CHC amendments and will issue separate final decisions 
for each. 88 FR at 16442, note 12.
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    EPA requested comment on the 2020 At-Berth Amendments, and whether 
they meet the criteria for a full authorization. Specifically, EPA 
requested public 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.\33\
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    \33\ Id.
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    EPA received comment from several parties that opposed EPA granting 
an authorization to CARB for the 2020 At-Berth Amendments.\34\ EPA also 
received comment from several parties that supported EPA granting an 
authorization to CARB for the 2020 At-Berth Amendments.\35\ EPA will 
address these comments below.
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    \34\ Pacific Merchant Shipping Association (PMSA), EPA-HQ-OAR-
0152-0062; Western States Petroleum Association (WSPA), EPA-HQ-OAR-
2023-0152-0022; Maersk, EPA-HQ-OAR-0152-0021; and, Pasha Hawaii 
Holdings (Pasha Hawaii), EPA-HQ-OAR-2023-0152-0054.
    \35\ EPA received one comment submitted jointly (Earthjustice), 
EPA-HQ-OAR-2023-0152-0041, that included: BREATHE Southern 
California, California Environmental Voters, California Nurses for 
Environmental Health and Justice, Center for Biological Diversity, 
Center for Community Action and Environmental Justice, Central 
Valley Air Quality Coalition, Climate Solutions, Coalition for Clean 
Air, Earthjustice, East Yard Communities for Environmental Justice, 
Environmental Defense Fund, Friends of the Earth, Little Manila 
Rising, Natural Resources Defense Council, Ocean Conservancy, 
Pacific environment, Regional Asthma Management and Prevention, San 
Pedro & Peninsula Homeowners Coalition, Sierra Club, Sunflower 
Alliance, Washington Physicians for Social Responsibility, and the 
West Long Beach Association. These same commenters submitted an 
additional comment after the close of the comment period 
(Earthjustice Additional Comment), EPA-HQ-OAR-2023-0152-0063. EPA 
also received comment from the American Lung Association (ALA), EPA-
HQ-OAR-2023-0152-0001, and the West Berkeley Alliance for Clean Air 
and Safe Jobs, EPA-HQ-OAR-2023-0152-0046 and the Ocean Conservancy, 
and other individual comments found at EPA-HQ-OAR-2023-0152.
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III. Discussion

    Our analysis of the 2020 At-Berth Amendments in the context of the 
three authorization criteria is set forth below.

A. First Authorization Criterion

    CAA section 209(e)(2)(A)(i) of the CAA instructs that EPA cannot 
grant an authorization if the Agency finds that California was 
arbitrary and capricious in its determination that its standards will 
be, in the aggregate, at least as protective of public health and 
welfare as applicable Federal standards.
    CARB states that as with standards for new on-road motor vehicles 
and engines, California evaluates the protectiveness of its nonroad 
standards ``in the aggregate,'' assessing whether the State's 
standards, as a whole regulatory program (a whole nonroad emissions 
program), are at least as protective as EPA's standards.\36\ CARB notes 
that this protectiveness assessment also takes place against the 
backdrop of prior nonroad authorizations granted for which California 
determined, and EPA affirmed, that California's existing nonroad 
emissions program is at least as protective as EPA's.\37\
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    \36\ CARB At-Berth Authorization Request at 21.
    \37\ Id. EPA notes that its recently granted nonroad 
authorization confirmed the approach of determining whether CARB's 
nonroad amendments undermine California's previous determination 
that its standards and accompanying enforcement procedures, in the 
aggregate, are at least as protective of public health and welfare 
as applicable federal standards. 88 FR 24411, 24414 (April 20, 
2023).
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    In adopting the 2020 At-Berth Amendments, CARB's Board approved 
Resolution 20-22, in which it expressly declared, ``the Board hereby 
determines that the regulations adopted herein will not cause 
California's off-road engine emission standards, in the aggregate, to 
be less protective of public health and welfare as applicable federal 
standards.'' \38\ CARB further stated that there is no basis for EPA to 
find the Board's determination is arbitrary and capricious since EPA is 
not authorized to regulate ``in-use'' nonroad engines under the CAA and 
is thus precluded from developing any comparable requirements for this 
category of sources.\39\ CARB noted that the 2020 At-Berth Amendments 
are projected to achieve 3.5 tons per day (tpd) of NO<INF>X</INF> in 
the South Coast (and 7.1 tpd statewide) in 2037 and is one of the 
control measures committed to in California's 2022 State SIP Strategy 
to help the South Coast reach attainment with the 2037 ozone standard. 
In addition, CARB noted that its 2020 At-Berth Amendments are projected 
to achieve cumulative total reductions from 2021 to 2032 of 17,500 tons 
of NOx, 370 tons of PM<INF>2.5</INF>, 870 tons of ROG; and 356,000 
metric tons of carbon dioxide equivalent (CO2e).\40\
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    \38\ CARB, Resolution 20-22 (quoted in CARB At-Berth 
Authorization Request at 22).
    \39\ CARB At-Berth Authorization Request at 22, citing CAA 
section 213 (EPA's authority to set nonroad emission standards for 
new nonroad engines and vehicles) and Engine Manufacturers 
Association v. EPA, 88 F.3d 1075 (D.C. Cir 1996) (EMA).
    \40\ CARB At-Berth Authorization Request at 3-5.
---------------------------------------------------------------------------

    No evidence was submitted to support an argument that the 
stringency of CARB's At-Berth Regulation is numerically less stringent 
than the applicable EPA standard (in this case EPA does not have the 
authority to regulate in-use OGVs under its regulatory authority set 
forth in section 213 of the CAA, therefore there are no applicable 
federal standards to compare with CARB's standards). Therefore, we 
cannot find that California's 2020 At-Berth Amendments undermine 
California's previous determination that its nonroad standards and 
accompanying enforcement procedures, in the aggregate, are at least as 
protective of public health and welfare as applicable Federal standards 
or that CARB's protectiveness determination submitted as part of its 
authorization request is arbitrary and capricious.

[[Page 72466]]

Thus, we cannot deny CARB's request for authorization of its Amendments 
based on this criterion.
    One commenter asserted that California's justification for its 
protectiveness finding must fail because ``CARB purports that EPA need 
not look at the proposed regulation to determine `protectiveness', 
rather that California must merely be at least as protective as the 
federal standards.'' \41\ This commenter asserted that Congress could 
not have meant that CARB can adopt any regulations it proposes without 
some review by EPA and that EPA must delve into the regulation CARB is 
currently submitting rather than a general statement that CARB views 
its program as a whole more protective than applicable federal 
standards. This commenter also asserted that CARB ``confuses'' the 
issue by ``creating a sub-categorization'' of nonroad engines of ``in-
use'' engines and that there is no such distinction in the CAA and is 
contrary to the intent of the CAA.\42\
---------------------------------------------------------------------------

    \41\ Maersk at 4-5 (note, this commenter did not number the 
pages in their comment).
    \42\ Id.
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    EPA notes that its historical practice, followed here, is to 
examine the specific standards that CARB has submitted for 
authorization and to compare the stringency of such standards to the 
relevant federal standards. If CARB's standards are more stringent than 
the relevant federal standards, then the first authorization criterion 
is satisfied. In addition, in the event that it appears that a specific 
California standard may be less stringent than an applicable federal 
standard, then EPA will evaluate whether California's standards as a 
whole are `in the aggregate'' as protective of public health and 
welfare as applicable federal standards for nonroad vehicles and 
engines.\43\ In that circumstance, even if the standards in question 
are less stringent than the relevant federal standards, so long as 
California's nonroad standards, in the aggregate, are more stringent 
than the federal standards, the first authorization criteria is 
satisfied.
---------------------------------------------------------------------------

    \43\ EPA also evaluates the first authorization criterion by 
assessing the numerical stringency of CARB's standard compared to 
applicable Federal standards. Section 209(b)(2) supports this 
approach.
---------------------------------------------------------------------------

    In this instance there are no EPA standards that apply to OGVs that 
are no longer new.\44\ CARB's At-Berth Regulation applies to OGVs that 
are not in a ``new'' status but rather OGVs that are non-new or ``in-
use'' as CARB applies this concept. CARB is not creating this concept 
of ``in-use'' nor is it inconsistent with the CAA. EPA notes that this 
commenter also does not account for the language in section 209(e) and 
related case law. For example, based on the Court decision in EMA, EPA 
implemented regulations for section 209(e) of the CAA that clarify that 
states and localities may not regulate (are preempted from regulating) 
the emissions on in-use nonroad engines and vehicles but that 
California may seek an authorization to enforce such regulations.\45\
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    \44\ CAA section 216 defines ``new'', in part, as ``the 
equitable or legal title to which has never been transferred to the 
ultimate purchaser.''
    \45\ The genesis of the dispute of the scope of implied 
preemption in section 209(e)(2) originated from EPA's final 1994 
rule that limited preemption to ``new'' nonroad sources and did not 
cover ``non-new'' or in-use sources. See EMA at 1082 (citing EPA's 
rule at 59 FR 3699, 36971-73 (1994)). The EMA Court explained that 
EPA has sole authority over the classes of new nonroad sources 
defined in section 209(e)(1). In addition, EPA and California have 
joint authority over all other new nonroad sources. Id. at 1090. The 
Court then examined whether all states have independent authority to 
regulate non-new sources or whether California has sole authority 
over such sources (with other states permitted to opt into 
California regulations). The Court held that the implied preemption 
of section 209(e)(2) extends beyond emission standards for new 
nonroad sources and includes non-new sources. Id. at 1094. EPA's 
regulations that implement the holding in EMA are at 40 CFR 
1074.10(b) and Appendix A.
---------------------------------------------------------------------------

    EPA also received comment that suggested CARB's projected emission 
reductions associated with the control of emissions from tankers were 
inaccurate.\46\ This commenter noted what it believed to be a 
discrepancy between, on the one hand, CARB's rulemaking record where 
emission reduction estimates were based on capture and control 
technologies (not shore power) in order to control boiler emissions 
from tankers, and on the other, more recent statements from CARB 
indicating a belief shore power may provide a viable alternative. The 
commenter noted that CARB is incorrectly representing an overstated 
reduction in tanker emissions that was based on capture on control 
technology.\47\
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    \46\ WSPA at 6-7. As noted below, the commenter failed to 
adequately allege that this comment is related to any of the three 
authorization criteria. Therefore this comment is not an adequate 
basis for denying the authorization. Nonetheless, EPA has in its 
discretion addressed this comment in relation to the first and 
second authorization criteria.
    \47\ Id.
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    As noted above, EPA's scope of review of CARB's authorization 
request is narrow and is limited to the criteria in section 
209(e)(2)(A). While EPA appreciates this commenter's concern for the 
accuracy in the emission reduction estimates, neither this commenter 
nor any other has submitted information, data, or arguments as to why 
claimed inaccuracies would render CARB's standards, whether alone or in 
the aggregate, to be less protective than applicable federal standards. 
Any emission reductions from California's regulation of in-use nonroad 
vehicles or engines, including those from tankers, would support a 
finding that the State's standards are as protective as the federal, 
and this would be true whether the State's standards are considered in 
the aggregate or individually.
    EPA notes that this comment was not tied to any of the three 
authorization criteria. To the extent the commenter may also believe 
that potential inaccuracies indicate a lack of a need for the 2020 At-
Berth Amendments under the second authorization criterion, for the 
reasons noted further below, California continues to experience 
compelling and extraordinary conditions, and thus California has 
demonstrated a need for its nonroad emission program (include the At-
Berth Regulations) regardless of the actual or precise emission 
reductions from the control of emissions from tankers.
    Accordingly, for the reasons noted above, EPA cannot find that 
CARB's protectiveness finding is arbitrary and capricious, nor can we 
deny CARB's request for authorization of its 2020 At-Berth Amendments 
based on this criterion.

B. Second Authorization Criterion

    Under section 209(e)(2)(A)(ii) of the Act, EPA must grant an 
authorization for California nonroad vehicle and engines standards and 
accompanying enforcement procedures unless EPA finds that California 
``does not need such State standards to meet compelling and 
extraordinary conditions.'' EPA has traditionally interpreted this 
provision, consistent with its interpretation of similar language in 
section 209(b)(1)(B), as requiring consideration of whether conditions 
in California justify the need for a separate nonroad vehicle and 
engine program to meet compelling and extraordinary conditions, and not 
whether any given standard or set of standards is necessary to meet 
such conditions.\48\
---------------------------------------------------------------------------

    \48\ See e.g., 82 FR 6525 (January 19, 2017); 78 FR 58090 
(September 20, 2013).
---------------------------------------------------------------------------

    Congress has not disturbed this reading of section 209(b)(1)(B), 
and 209(e)(2)(A)(ii), as calling for EPA review of conditions in 
California rather than the standards being considered for waiver or 
authorization. With two exceptions, EPA has consistently interpreted 
this provision as requiring the Agency to consider whether California 
needs a separate motor vehicle emission program (or nonroad program) 
rather than the specific

[[Page 72467]]

standards in the request at issue to meet compelling and extraordinary 
conditions. Congress intended to allow California to address its 
extraordinary environmental conditions and foster its role as a 
laboratory for motor vehicle emissions control. The Agency's 
longstanding practice therefore has been to evaluate CARB's requests 
with the broadest possible discretion to allow California to select the 
means it determines best to protect the health and welfare of its 
citizens in recognition of both the harsh reality of California's air 
pollution and the importance of California's ability to serve as a 
pioneer and a laboratory for the nation in setting new motor vehicle 
emission standards and developing control technology.\49\ EPA notes 
that ``the statute does not provide for any probing substantive review 
of the California standards by federal officials.'' \50\ As a general 
matter, EPA has applied the traditional interpretation in the same way 
for all air pollutants, criteria and GHG pollutants alike.\51\
---------------------------------------------------------------------------

    \49\ See, e.g., S. Rep. No. 403, 90th Cong., 1st Sess. 33 (1967) 
(The waiver of preemption is for California's ``unique problems and 
pioneering efforts.''); 113 Cong. Rec. 30950, 32478 (``[T]he State 
will act as a testing agent for various types of controls and the 
country as a whole will be the beneficiary of this research.'') 
(Statement of Sen. Murphy).
    \50\ Ford Motor v. EPA, 606 F.2d 1293, 1300 (D.C. Cir. 1979).
    \51\ 74 FR at 32763; 76 FR 34693; 79 FR 46256; 81 FR 95982; 88 
FR 20688.
---------------------------------------------------------------------------

    In a departure from its long-standing interpretation, EPA has on 
two separate instances limited its interpretation of this provision to 
California motor vehicle standards that are designed to address local 
or regional air pollution problems.\52\ In both instances EPA 
determined that the traditional interpretation was not appropriate for 
standards designed to address a global air pollution problem and its 
effects and that it was appropriate to address such standards 
separately from the remainder of the program (what became known as the 
``alternative interpretation'').\53\ However, shortly after both 
instances, EPA explained that the reinterpretation of the second waiver 
prong in this manner is flawed and the alternative interpretation is 
inappropriate, finding that the traditional interpretation--in which 
EPA reviews the need for California's motor vehicle program as a 
whole--is the best interpretation.\54\
---------------------------------------------------------------------------

    \52\ 73 FR 12156 (March 8, 2008); 84 FR 51310 (September 27, 
2019).
    \53\ In SAFE 1, EPA withdrew a portion of the waiver it had 
previously granted for California's Advanced Clean Cars (ACC) 
program--specifically, the waiver for California's zero emission 
vehicle (ZEV) mandate and the GHG emission standards within 
California's ACC program. EPA based its action, in part, on its 
determination that California did not need these emission standards 
to meet compelling and extraordinary conditions, within the meaning 
of section 209(b)(1)(B) of the CAA. That determination was in turn 
based on EPA's adoption of a new, GHG-pollutant specific 
interpretation of section 209(b)(1)(B). In any event, EPA expressly 
stated that its new interpretation of section 209(b)(1)(B) only 
applied to waiver requests for GHG emission reducing standards, SAFE 
1 at 51341, n. 263. Therefore, even if EPA still maintained the SAFE 
1 interpretation (which EPA does not agree with for the reasons 
explained in the SAFE 1 Reconsideration Decision (87 FR 14332 (March 
14, 2022)), EPA's traditional interpretation would still apply to 
this nonroad authorization request given all of the standards at 
issue are, in whole or in part, related to the reduction of criteria 
pollutant emissions. CARB notes that in addition to the cumulative 
tons of NO<INF>X</INF> and PM<INF>2.5</INF> between 2021 and 2032, 
the 2020 At-Berth Amendments are also projected to reduce 356,000 
metric tons of carbon dioxide equivalent (CO2e) (CARB At-Berth 
Authorization Request at 4-5). Therefore, to the extent the 
alternative interpretation of the second authorization criteria were 
to apply (i.e., an assessment of the need for individual standards), 
EPA agrees with CARB that the OGV regulation will assist California 
in the substantial challenges in facing national and state ambient 
air quality standards for ozone and particulate matter. (CARB At-
Berth Authorization Request at 25-26).
    \54\ 74 FR 32744 (July 8, 2009); SAFE 1 Reconsideration Decision 
at 14333-34, 14352-55, 14358-62.
---------------------------------------------------------------------------

    CARB noted that California, particularly in the South Coast and San 
Joaquin Valley Air Basins, ``continues to experience some of the worst 
air quality in the nation, and the South Coast and San Joaquin Valley 
Air Basins, in particular, continue to be in extreme non-attainment 
with national ambient air quality standards for ozone and serious non-
attainment with national ambient air quality standards for particulate 
matter.'' \55\ CARB identified OGVs regulated by the At-Berth 
Regulation as significant sources of harmful air pollutants, and the 
need for CARB to achieve reductions of NO<INF>X</INF> and PM to attain 
the national ambient air quality standards (NAAQS) for ozone and 
PM.\56\ In addition, the CARB Board noted the public health and air 
quality benefits beyond those achieved by the 2007 At-Berth Regulation 
and the benefits that would accrue to coastal and port communities.\57\ 
EPA received comment that noted the April 2023 American Lung Associated 
Report which ranks cities and counties based on ozone and particle 
pollution, states that sixteen of the 25 most ozone-polluted regions in 
the nation are located in California.\58\ This commenter noted that 
many of the most-polluted regions in California, and indeed the nation, 
house major ports and are home to millions who are most susceptible to 
developing illnesses from breathing unhealthy levels of air pollution, 
including children, the elderly, and people with underlying health 
conditions.\59\
---------------------------------------------------------------------------

    \55\ CARB At-Berth Authorization Request at 23.
    \56\ Id. at 24-28.
    \57\ See CARB Board Resolution 20-22. (``WHEREAS, the Regulation 
is designed to achieve added public health and air quality benefits 
that result from emissions reductions of oxides of nitrogen 
(NO<INF>X</INF>), particulate matter 2.5 (PM<INF>2.5</INF>), 
reactive organic gas (ROG), GHG emissions, black carbon, diesel 
particulate matter (DPM) and other toxic air contaminants, beyond 
those realized by the 2007 At-Berth ATCM; . . . The Regulated 
California Waters, which include California ports and independent 
marine terminals, feature meteorological, wind, and atmospheric 
conditions peculiar to the local waters of California, and such 
conditions make it likely that emissions of DPM, PM<INF>2.5,</INF> 
ROG, and NO<INF>X</INF> occurring within these waters and ports are 
transported to coastal communities and adversely affect human health 
and welfare and the environment in such communities, thereby calling 
for special precautions to reduce these emissions; The emissions 
from diesel auxiliary engines used on ocean-going vessels and 
boilers used on tanker vessels with steam driven boilers while at 
berth contribute to regional air quality problems and to potential 
risk of cancer and non-cancer health effects for residents living in 
communities near California's major ports and independent marine 
terminals; Upon implementation, the Regulation approved herein would 
reduce emissions of DPM, ROG, GHG and NO<INF>X</INF> from diesel 
auxiliary engines used on ocean-going vessels and PM<INF>2.5</INF>, 
ROG, and NO<INF>X</INF> from boilers on tanker vessels with steam 
driven pumps while at berth and will reduce emissions of carbon 
dioxide, a GHG . . .'').
    \58\ Earth Justice at 2.
    \59\ Id.
---------------------------------------------------------------------------

    EPA also received comment that questioned whether CARB had 
adequately demonstrated the need for the At-Berth Regulations based on 
CARB's basis, in part, that the regulations were needed to address 
NAAQS issues in the South Coast and San Joaquin Valley Air Basins, and 
that CARB does not explain how the regulations are needed in other 
parts of the state.\60\ This commenter also suggested that California 
relied on past findings and the regulation of motor vehicles (as 
opposed to nonroad engines and vehicles) as the basis for the need for 
its standards. This commenter also argued that because section 
209(e)(2)(B)(i) allows other states to adopt and enforce California's 
emission standards, EPA has a greater duty to examine the California 
regulations, including the need for them.
---------------------------------------------------------------------------

    \60\ Maersk at 7.
---------------------------------------------------------------------------

    Based on a review of the authorization record, the opponents have 
not demonstrated that California no longer has a need for its nonroad 
emission program, including its At-Berth regulations. California 
continues to experience some of the worst air quality in the country 
(measured by the NAAQS status of number of areas within California) and 
its port and coastal communities continue to experience serious public 
health and welfare impacts. In addition to the Port of Long

[[Page 72468]]

Beach and the Port of Los Angeles covered by the 2007 At-Berth 
Regulation, the 2020 At- Berth Amendments include the ports of Oakland, 
San Francisco, San Diego, Richmond, Stockton, Rodeo Area Marine Oil 
Terminals, and Hueneme with their own NAAQS attainment challenges as 
well as local public health impacts associated with port 
activities.\61\ The record here, as presented by CARB, is plainly based 
on the compelling and extraordinary conditions in California generally 
as opposed to discrete regions and the corresponding need for CARB's 
nonroad emission program.\62\
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    \61\ See Ocean Conservancy, Earth-Justice, and American Lung 
Association. EPA also notes that the climate changes impacts in 
California (including those on local public health and welfare), and 
the connection to and purpose of CARB's OGV At-Berth regulation and 
reductions of CO2e emissions.
    \62\ The commenter provided no legal rationale for interpreting 
the statute to require that ``compelling and extraordinary 
conditions'' exist in every part, or even in a predominance of 
geographic areas within California. In addition, California is 
responsible, in part, for developing State Implementation Plan (SIP) 
measures to address nonattainment and maintenance and EPA sees no 
basis to deny an authorization for regulations designed at the state 
level at a number of ports and that address emission sources that 
create both local and regional air quality problems.
---------------------------------------------------------------------------

    Contrary to comments received, CARB's submission and EPA's 
evaluation of the second authorization criterion at section 
209(e)(2)(A)(ii) is not based on CARB's findings associated with the 
need for California's motor vehicle emission program under section 
209(b)(1)(B). CARB's Board Resolution and its authorization request 
plainly sets forth its basis to demonstrate the need for its nonroad 
emission program to meet compelling and extraordinary conditions under 
the second authorization criterion. Further, EPA does not evaluate the 
record before it under section 209(e)(2)(A), including whether there is 
a need for ``such standards'' to meet compelling and extraordinary 
conditions in California, based on the ability or possibility of other 
States to adopt California standards.\63\
---------------------------------------------------------------------------

    \63\ EPA has on several occasions noted, responding to 
assertions that California's standards must be evaluated in the 
context of actions that have been or could be taken by states 
adopting California standards, that the plain text of section 209 as 
well as the legislative history of the section limit EPA's 
consideration of the California standards to the state of California 
and do not extend to other states. See e.g., 78 FR 2112, 2132 
(January 9, 2013). Similarly, ``[t]he 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. 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.'' (emphasis added), 78 FR 
at 2115.
---------------------------------------------------------------------------

    CARB has repeatedly demonstrated the need for its nonroad engines 
and vehicles emissions program to address compelling and extraordinary 
conditions throughout the state of California, including in its 
nonattainment areas as well as in local and port communities affected 
by the 2020 At-Berth Amendments. The opponents of the waiver have not 
adequately demonstrated that that California does not need its nonroad 
emissions program to meet compelling and extraordinary conditions. 
Therefore, I determine that I cannot deny the authorization requests 
under section 209(e)(2)(A)(ii).

C. Third Waiver Criterion

    Section 209(e)(2)(A)(iii) of the Act instructs that EPA cannot 
grant an authorization if California's standards and enforcement 
procedures are not consistent with ``this section.'' The 1994 rule sets 
forth, among other things, regulations providing the criteria, as found 
in section 209(e)(2)(A), which EPA must consider before granting any 
California authorization request for new nonroad engine or vehicle 
emission standards.\64\ EPA has historically interpreted the section 
209(e)(2)(A)(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).\65\
---------------------------------------------------------------------------

    \64\ See 40 CFR part 1074.
    \65\ 59 FR at 36982-83.
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1. Consistency With CAA Section 209(a)
    To be consistent with CAA section 209(a), California's 2020 At-
Berth Amendments must not apply to new motor vehicles or new motor 
vehicle engines. This is the case. California's 2020 At-Berth 
Amendments expressly apply only to nonroad engines and do not apply to 
motor vehicles or engines used in motor vehicles as defined by CAA 
section 216(2).\66\ We did not receive any comments on California's 
consistency with CAA section 209(a). Therefore, EPA cannot deny 
California's request on the basis that California's 2020 At-Berth 
Amendments are not consistent with CAA section 209(a).
---------------------------------------------------------------------------

    \66\ The regulated engines are not ``self-propelled vehicles 
designed for transporting persons or property on a street or 
highway.'' CAA section 216(2).
---------------------------------------------------------------------------

2. Consistency With CAA Section 209(e)(1)
    To be consistent with CAA section 209(e)(1), California's 2020 At-
Berth Amendments must not affect new farm or construction equipment or 
vehicles that are below 175 horsepower, or new locomotives or new 
engines used in locomotives. CARB notes that its 2020 At-Berth 
Amendments do not affect such permanently preempted vehicles or 
engines. EPA did not receive any comments regarding California's 
consistency with section 209(e)(1). Therefore, EPA cannot deny 
California's request on the basis that California's 2020 At-Berth 
Amendments are not consistent with section 209(e)(1).
3. Consistency With CAA Section 209(b)(1)(C)
a. Historical Context
    The requirement that California's standards be consistent with CAA 
section 209(b)(1)(C) effectively requires consistency with section 
202(a). EPA has interpreted consistency with section 202(a) using a 
two-pronged test: (1) whether there is sufficient lead time to permit 
the development of technology necessary to meet the standards and other 
requirements, giving appropriate consideration to the cost of 
compliance in the time frame provided, and (2) whether the California 
and Federal test procedures are sufficiently compatible to permit 
manufacturers to meet both the state and Federal test requirements with 
one test vehicle or engine.\67\ We often refer to the first element by 
the shorthand of technological feasibility (or technological 
infeasibility). The scope of EPA's review of whether California's 
action is consistent with CAA section 202(a) is narrow. The 
determination is limited to whether those opposed to the authorization 
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.\68\
---------------------------------------------------------------------------

    \67\ See 61 FR 53371, 53372 (Oct. 11, 1996).
    \68\ MEMA I, 627, F.2d at 1126.

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[[Page 72469]]

    Under section 209(b)(1)(C), EPA must grant California's waiver (and 
authorization) request unless the Agency finds that California 
standards and accompanying enforcement procedures are ``not 
consistent'' with section 202(a) of the Act. Section 202(a)(1) grants 
EPA authority to regulate motor vehicle emissions generally and the 
accompanying section 202(a)(2) specifies that those standards are to 
``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.'' Thus, no specific lead time requirement applies to standards 
promulgated under section 202(a)(1).
    EPA has long limited its evaluation of whether California's 
standards are consistent with section 202(a) to determining 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 period; or whether (2) California and 
Federal test procedures are incompatible so that a single vehicle could 
not be subjected to both tests. EPA has also explained that ``the 
import of section 209(b) is not that California and Federal standards 
be identical, but that the Administrator not grant a waiver of Federal 
preemption where compliance with the California standards is not 
technologically feasible within available lead time.'' Further, EPA's 
review is limited to the record on feasibility of the technology. 
Therefore, EPA's review is narrow and does not extend to, for example, 
whether the regulations under review are the most effective, whether 
the technology incentivized by California's regulations are the best 
policy choice, or whether better choices should be evaluated. The 
Administrator has thus long explained that ``questions concerning the 
effectiveness of the available technology are also within the category 
outside my permissible scope of inquiry,'' under section 209(b)(1)(C).
    California's accompanying enforcement procedures would also be 
inconsistent with section 202(a) if the Federal and California test 
procedures conflicted, i.e., if manufacturers would be unable to meet 
both the California and Federal test requirements with the same test 
vehicle.
    In determining whether there is inadequate lead time to permit the 
development of technology, EPA considers whether adequate technology is 
presently available or already in existence and in use. If technology 
is not presently available, EPA will consider whether California has 
provided adequate lead time for the development and application of 
necessary technology prior to the effective date of the standards for 
which a waiver is being sought.
    Additionally, the D.C. Circuit has held that ``[i]n the waiver 
context, section 202(a) relates in relevant part to technological 
feasibility and to federal certification requirements. The 
technological feasibility component of section 202(a) obligates 
California to allow sufficient lead time to permit manufacturers to 
develop and apply the necessary technology. The federal certification 
component ensures that the Federal and California test procedures do 
not impose inconsistent certification requirements. Neither the Court 
nor the agency has ever interpreted compliance with section 202(a) to 
require more.'' \69\ Regarding the technology costs portion of the 
technology feasibility analysis, when cost is at issue EPA evaluates 
the cost of developing and implementing control technology in the 
actual time provided by the applicable California regulations. The D.C. 
Circuit has stated that compliance cost ``relates to the timing of a 
particular emission control regulation.'' \70\ The Court, in MEMA I, 
opined that section 202's cost of compliance concern, juxtaposed as it 
is with the requirement that the Administrator provide the requisite 
lead time to allow technological developments, refers to the economic 
costs of motor vehicle emission standards and accompanying enforcement 
procedures. See S. Rep. No. 192, 89th Cong., 1st Sess. 5-8 (1965); H.R. 
Rep. No. 728 90th Cong., 1st Sess. 23 (1967), reprinted in U.S. Code 
Cong. & Admin. News 1967, p. 1938. It relates to the timing of a 
particular emission control regulation rather than to its social 
implications.\71\
---------------------------------------------------------------------------

    \69\ Motor Equipment Manufacturers Association v. Nicols (MEMA 
III) 143 F.3d 449 (D.C. Cir 1998).
    \70\ MEMA I at 1119.
    \71\ Id.
---------------------------------------------------------------------------

    Regarding the burden of proof under the third prong, EPA has 
previously stated that its inquiry is limited to evaluating whether 
those opposed to the waiver have met their burden of showing either: 
(1) that California's standards are technologically infeasible, 
including whether they do not provide for adequate lead time giving due 
consideration to costs, or (2) that California's test procedures impose 
requirements inconsistent with the Federal test procedure.
b. CARB's At-Berth Authorization Request Discussion of Section 
209(b)(1)(C)
    CARB noted at the outset of its technological feasibility and lead 
time discussion that the 2020 At-Berth Amendments present ``no issues 
regarding technical feasibility based on the existing technologies in 
place, the work already underway to expand emissions control 
technologies to new vessel types, and the compliance flexibilities that 
are built into the Regulation.'' \72\
---------------------------------------------------------------------------

    \72\ CARB At-Berth Authorization Request at 30.
---------------------------------------------------------------------------

    In the context of its discussion of several compliance options or 
pathways, CARB noted that shore power itself continues to be 
technologically feasible. For example, CARB noted that grid-supplied 
shore power is a technically feasible control technology that is 
currently being widely used in California to reduce emissions from 
container, refrigerated cargo, and cruise vessels for compliance with 
the 2007 At-Berth Regulation.\73\ In addition, with regard to newly 
regulated vessels (ro-ros and tankers), CARB stated that shore power is 
in use for ro-ro vessels in Northern Europe and there is one instance 
of a tanker terminal using shore power for a limited group of tanker 
vessels in California at the Port of Long Beach.\74\ Finally, with 
regard to shore power, CARB noted that some degree of retrofitting of 
certain vessels to use the technology is needed but that technology 
presently exists.\75\
---------------------------------------------------------------------------

    \73\ Id. citing CARB's Initial Statement of Reasons (ISOR) at p, 
III-10-13.
    \74\ Id. Citing the ISOR at III-14-15 and III-18-19.
    \75\ Id.
---------------------------------------------------------------------------

    Another technology that CARB found to be effective for compliance 
and technically feasible is capture and control.\76\ CARB identified 
capture and control technologies that would not require retrofits to 
vessels or terminals (if using a barge-based system) as well as land-
based capture and control systems that may require some modifications 
to the terminals, and stated the possible need for modification was 
factored into compliance timelines.\77\
---------------------------------------------------------------------------

    \76\ Id. CARB noted that the first capture and control system 
for vessels under the At-Berth program was granted a CARB Executive 
Order in 2015, and, like shore power, the technology is currently in 
use by container vessels for compliance with the 2007 Regulation.
    \77\ Id. at 31.
---------------------------------------------------------------------------

    CARB noted that operators of these vessel fleets have already 
installed shore power infrastructure has already been installed on a 
large majority of contain, reefer, and cruise vessel fleets subject to 
the 2007 At-Berth Regulation. As such,

[[Page 72470]]

CARB expressed that newly regulated ports or terminals (under the 2020 
At-Berth Amendments) receiving container, reefer, or cruise vessels are 
not expected to be subject to control requirements beyond what is 
already covered under the existing regulation and that has been 
demonstrated to be feasible. ``Because of the widespread investment in 
shore power for compliance with the 2007 At Berth Regulation, the 
majority of container, reefer, and cruise vessel fleets calling 
California are expected to continue using shore power to comply with 
the new Regulation.'' CARB also noted that the plans submitted to CARB 
by those regulated ports and terminals receiving regulated container, 
reefer, and cruise vessels further support this finding.\78\
---------------------------------------------------------------------------

    \78\ Id. CARB also noted that in addition to the availability 
and feasibility of shore power there is existing ``barge-capture and 
control technology'' for use on container vehicles, that such CAECS 
type technology can be used for any container vessel visiting a 
regulated California terminal, and that therefore there should be no 
question that regulated container, reefer, and cruise vessels will 
be able to comply with the 2020 At-Berth Amendments by the initial 
compliance date of January 1, 2023.
---------------------------------------------------------------------------

    With regard to ro-ro and tanker vessels, which were not regulated 
under the 2007 At-Berth Regulation, CARB noted that both shore power 
and capture and control technologies are technically feasible for 
controlling emissions from these vessel types and are already in use at 
some locations. ``Ro-ro vessels typically have similar power needs at 
berth as container and reefer vessels and, as such, are expected to be 
able to utilize shore power equipment or a capture and control system 
(barge- or land-based) that is similar in design and capacity to those 
currently used by container and reefer vessels.'' Some modifications 
may be necessary to ensure the technology can serve the emissions 
reduction needs of a ro-ro vessel, but technology manufacturers have 
advised CARB staff that those adjustments can be readily made within 
the regulatory timeframes provided for ro-ro vessel compliance.'' \79\
---------------------------------------------------------------------------

    \79\ Id. at 32.
---------------------------------------------------------------------------

    Tanker vessels, generally have greater power loads at berth than 
container, reefer, and ro-ro vessels. CARB noted that shore power and/
or capture and control systems are also anticipated to be the primary 
methods for reducing emissions from tankers at berth. For example, CARB 
noted that shore power is already in use at one tanker terminal at the 
Port of Long Beach (Pier T) and capture and control systems are being 
considered by both technology manufacturers and tanker industry members 
as a potential solution for compliance with the At Berth 
Regulation.\80\ CARB acknowledged that ``Some additional modifications 
to the existing capture and control system may be necessary for use on 
tanker vessels due to their larger power loads needed at berth and 
safety concerns resulting from the flammable cargos often transported 
by tanker vessels. These modifications include, but are not limited to, 
putting spuds on capture and control barges that allow them to anchor a 
safe distance away from the vessel (providing easy break-away 
capabilities in the event of an emergency situation) or developing 
land-based units with centralized treatment systems with additional 
piping and cranes at the dock designed to safely carry hot exhaust away 
from the vessel for after-treatment.'' \81\
---------------------------------------------------------------------------

    \80\ Id.
    \81\ Id.
---------------------------------------------------------------------------

    In addition to CARB's own technology assessments, CARB noted its 
discussions with technology manufacturers who expressed confidence in 
their ability to adapt existing capture and control technologies for 
safe use on tanker vessels. CARB also noted the first demonstration 
project to develop a capture and control system for tankers underway 
that is expected to reach completion by the end of 2023, well ahead of 
the first tanker vessel compliance dates (January 2025).\82\
---------------------------------------------------------------------------

    \82\ Id. at 32-33.
---------------------------------------------------------------------------

    CARB also noted that it had reviewed planning documents of ports 
and terminals that host ro-ro and tanker vessels and found that those 
plans generally align with the assumptions made in support of the 2020 
At-Berth Amendment, with ``the majority of ro-ro and tanker terminal 
plans indicating that regulated entities intend to use shore power or 
capture and control technologies to comply with the At Berth 
Regulation.'' \83\ CARB noted that the At-Berth Amendments were tuned 
to provide ``a staggered implementation schedule to reduce the burden 
on emissions control technology providers and contractors that 
specialize in wharf improvements, as bringing all tanker terminals and 
ro-ro terminals in at the same time could stress the ability of the 
existing equipment manufacturers to design, build, and deploy their 
systems, and could result in backorders and delays.'' \84\ The 2020 At-
Berth Amendments require previously regulated ocean-going vessels to 
now comply at the newly regulated ports and terminals by January 1, 
2023. The 2020 At-Berth Amendments require also require all ro-ro 
vessels visiting all regulated ports and terminals (including those 
ports and terminals covered by CARB's original regulation as well and 
ports and terminals newly regulated by the new At-Berth amendments to 
comply by January 1, 2025; for tankers that visit the ports of Los 
Angeles or Long Beach by January 1, 2025, and for all other ports and 
terminals by January 1, 2027.
---------------------------------------------------------------------------

    \83\ Id. at 33.
    \84\ Id.
---------------------------------------------------------------------------

    CARB concluded that ``there should be no question that sufficient 
pathways exist for regulated ro-ro and tanker vessels to comply with 
the Regulation's requirements by the required implementation dates 
given that the technology to comply . . . exists, given that the 
Regulation provides several years of lead time for equipment adaption, 
permitting, and adaptation; . . .'' \85\
---------------------------------------------------------------------------

    \85\ Id.
---------------------------------------------------------------------------

    In addition to CARB's assessments and expectations highlighted 
above, CARB noted a number of flexibilities built into the At-Berth 
regulations to accommodate varying project timelines in the event of 
delays. Examples of such flexibilities include providing each regulated 
vessel fleet and terminal with a limited number of exemptions each year 
and an option to remediate emissions if equipment or construction 
delays occur.\86\
---------------------------------------------------------------------------

    \86\ Id. See also CARB's FAQ at https://ww2.arb.ca.gov/sites/default/files/2021-11/TTD21-272%20At%20Berth%20FAQs.pdf.
---------------------------------------------------------------------------

    Another compliance pathway available to vessel operators, terminal 
operators, CAECS operators, as well as port operators is a 
``remediation fund'' that under certain circumstances allows regulated 
entities to reach compliance by monetary payments. The fund supports 
projects that reduce equivalent emissions in the same port communities 
impacted by the uncontrolled emissions.\87\
---------------------------------------------------------------------------

    \87\ Id. at 16-17. According to CARB, this compliance pathway is 
available under circumstances where equipment repairs or 
maintenance, delays in connecting a control strategy, and certain 
other circumstances are identified, and a terminal plan is submitted 
to and approved by CARB.
---------------------------------------------------------------------------

    CARB also noted an additional compliance pathway under an 
``Innovative Concepts Compliance Option'' added at the request of the 
tanker industry. This allows a terminal needing extra time to design, 
certify, and build an emissions control system to reduce equivalent 
emissions at their terminal from a different unregulated emissions 
source.\88\
---------------------------------------------------------------------------

    \88\ Id. at 33.
---------------------------------------------------------------------------

    Turning to the question of costs, including the economic cost of 
developing and implementing requisite

[[Page 72471]]

technology to meet the 2020 At-Berth Amendments, the At-Berth 
Authorization Request included CARB's assessment of costs and savings 
for regulated entities associated with every element of the 
Regulation.\89\
---------------------------------------------------------------------------

    \89\ EPA notes that its review of the authorization record, as 
it relates to cost, is more limited than what CARB laid out in the 
authorization request and mirrors that the Court in MEMA I 
explained. In MEMA I, the Court addressed the cost of compliance 
issue at some length in reviewing a waiver decision. According to 
the Court: Section 202's cost of compliance concern, juxtaposed as 
it is with the requirement that the Administrator provide the 
requisite lead time to allow technological developments, refers to 
the economic costs of motor vehicle emission standards and 
accompanying enforcement procedures to the regulated entities 
themselves (not including indirect costs on society). Such costs 
relate to the timing of a particular emission control regulation 
rather than to its social implications.
---------------------------------------------------------------------------

    CARB noted that ``A key element in considering the cost of 
compliance is to estimate the costs passed on by ports to terminal 
operators, by terminal operators to the vessel fleet operators, and by 
vessel fleet operators to their customers and consumers.'' \90\ CARB 
noted that the costs to directly regulated parties will vary 
considerably depending on the compliance pathway(s) selected (i.e., 
shore power or a capture and control system) and may include one-time 
equipment capital and installation costs and recurring costs for 
maintenance, labor, air pollution control services (rental of capture 
and control barge-based systems), fuel, electricity, and administrative 
costs, depending on the emission control strategy used for compliance. 
CARB noted that it broke the estimated costs down for regulated 
entities per year as part of the Standardized Regulatory Impact 
Assessment (SRIA) completed during the rulemaking process.\91\
---------------------------------------------------------------------------

    \90\ Id. at 35.
    \91\ Id.
---------------------------------------------------------------------------

    CARB stated that direct costs to comply will largely be borne by 
ports, terminal operators, and fleet owners and operators, though the 
industry may choose to pass on costs to consumers without incurring 
significant economic disruption or impact on business competitiveness. 
Therefore, CARB subsequently estimated these indirect costs to 
consumers by calculating cost ratios in metrics of increased cost per 
20-foot equivalent unit (TEU) of cargo for container and reefer 
vessels, increased cost per cruise vessel passenger, increased cost per 
automobile imported into or exported from California, and increased 
cost per gallon of gasoline, diesel fuel, jet fuel, and other crude 
products produced in California.\92\ CARB stated these calculations 
further support its conclusion, pointing to the historical deference 
EPA provides to California's policy judgments, including judgments on 
costs, that the 2020 At-Berth Amendments are feasible within the lead 
time provided and giving appropriate consideration of costs.\93\
---------------------------------------------------------------------------

    \92\ Id. These costs translate into an approximate increase in 
the per unit cost of: Container/Reefer: $1.14 per Twenty-foot 
Equivalent Unit (TEU); [middot] Cruise: $4.65 per passenger; 
[middot] Ro-ro: $7.66 per automobile; and Tanker: <$0.01 per gallon 
of finished product.
    \93\ Id. at 35-36.
---------------------------------------------------------------------------

    The remaining element of the consistency with section 202(a) 
requirement is whether the At-Berth regulations raises issues regarding 
the incompatibility of California and federal test procedures. CARB 
noted that in fact, it does not adopt or create any new test 
procedures. ``The regulation incorporates by reference a number of 
standards and test methods, . . ., to allow operators to submit engine 
test data already measured pursuant to federal regulations and the 
international treaty, respectively. There is no requirement for engine 
manufacturers or fleet owners to certify engines beyond federal and 
state certification testing for new engines. Additionally, there are no 
conflicts between federal and California test procedures for 
verification testing for diesel emission control strategies in that 
there is no comparable mandatory federal program.'' \94\
---------------------------------------------------------------------------

    \94\ Id.
---------------------------------------------------------------------------

c. Comments Received
    As noted in the ``Other Issues'' section below, EPA received 
comment that recommended that the Agency not act upon CARB's 
authorization request until a state appeals court in California ruled 
on an appeal from a lower Superior Court of California decision filed 
on March 1, 2023.\95\ EPA addresses the issue of whether it is 
necessary or appropriate to delay its authorization decision pending a 
court decision in the ``Other Issues'' section. However, the underlying 
superior court decision issued on January 18, 2023, is informative as 
it relates to the technological feasibility of the 2020 At-Berth 
Amendments.\96\ The Superior Court's judgment includes an analysis of 
the regulation's feasibility and safety and whether CARB violated its 
own statutory duties by failing to demonstrate substantial evidence of 
feasibility and safety.\97\ The Court noted that CARB may properly rely 
on ``reasonably foreseeable technological advances'' and noted the 
multiple compliance options to meet the emission reduction requirements 
and that, while other options are available, shore power and capture 
and control technologies will result in the necessary reductions.\98\ 
The Court also addressed a number of arguments from WSPA (the state 
court petitioner) that are similar to the comments that WSPA submitted 
to the record of EPA's authorization review. For example, the Court 
rejected WSPA's argument that CARB erred in its determination that 
shore power is feasible for diesel-electric tankers, finding sufficient 
record support for concluding shore power is among the feasible 
strategies for reducing auxiliary engine emissions from tanker vessels. 
Likewise, the Court noted CARB's regulatory accommodation of power 
boilers that are not configured to run on electricity.\99\ With regard 
to lead time, the Court upheld CARB's demonstration that the timing of 
the regulation is feasible,\100\ noting CARB's record evidence 
including statements from two technology providers that capture and 
control technologies could be commercially available sufficiently in 
advance of the 2025 and 2027 compliance dates.\101\
---------------------------------------------------------------------------

    \95\ WSPA at 7.
    \96\ Western States Petroleum Association v California Air 
Resources Board, (WSPA v CARB), issued by the Superior Court of 
California County of Los Angeles on January 18, 2023, judgment filed 
on March 1, 2023, Case No. 20STCP03138.
    \97\ Id. at 6 of 22.
    \98\ Id. 8, 9 of 22. The Court explained that CARB has 
demonstrated that both shore power and capture and control 
technology are ``available.''
    \99\ Id. at 9, 10 of 22. If a tanker uses shore power in lieu of 
its auxiliary engine, the At-Berth regulation does not require the 
tanker to curb emissions from its boiler.
    \100\ Id. at 11. ``That is, Petitioner argues the total 
development time required for the technology--together with the time 
needed for construction of the necessary supporting complex 
infrastructure at tanker terminals--``could range'' from 10 to 15 
years after adoption of the Regulation.''
    \101\ Id. EPA is not aware of any information from the 
commenters in EPA's record for the authorization request to refute 
these technology assessments and projections.
---------------------------------------------------------------------------

    EPA believes it appropriate to address a threshold lead time issue 
raised by a commenter at the outset.\102\ This commenter raised two 
separate arguments regarding lead time and pertaining to EPA's review 
of CARB's regulation, suggesting that two years must be provided from 
the date of EPA's authorization decision and the first date of 
regulatory implementation by CARB. First, the commenter stated that 
section 209(e)(2)(A) provides that EPA shall ``authorize California to 
adopt and enforce standards.'' Second, the commenter stated that 
section 209(e)(2)(B)(ii) also requires that ``California and such state 
adopt such standards at least 2 years before commencement of the period 
for which

[[Page 72472]]

the standards take effect.'' \103\ EPA notes that the preamble to its 
regulation that implements section 209(e), as well as its waiver and 
authorization practice, clarifies that the two-year lead time 
requirement in section 209(e)(2)(B)(ii), which on its face applies to 
states adopting California's nonroad emission standards, does not apply 
to California.\104\ EPA also notes that CARB is able to adopt its 
regulations before an EPA authorization and California enforcement may 
begin when EPA issues the authorization. Further, lead time is measured 
by the date of adoption of applicable emission standards in California, 
and not by any subsequent action by EPA.\105\
---------------------------------------------------------------------------

    \102\ PMSA at 5-6.
    \103\ Id.
    \104\ The nonroad authorization criteria are plainly spelled out 
in section 209(e)(2)(A) where only California is noted. Section 
(e)(2)(B), begins with ``Any State other than California . . .'' and 
there is no indication that 209(e)(2)(B) imposes requirements on 
California. EPA's regulations that implement section 209(e) spells 
out the criteria for granting authorizations in 40 CFR 1074.105 
(which mirrors the language in section 209(e2)(A) of the CAA, and 
EPA separately spells out the requirements for other states to adopt 
California's standards in 40 CFR 1074.110 (which mirrors the 
language in 209(e)(2)(B)). Further, the requirement in section 
209(e)(2)(A)(iii) (consistent with section 209) has, consistent with 
the 1994 rule, been interpreted as requiring consistency with CAA 
sections 209(a), 209(e)(1), and 209(b)(1)(C). EPA has stated that 
consistency with section 209(b)(1)(C) means that EPA will interpret 
the criterion the same way EPA has interpreted this criterion in 
prior motor vehicle waiver decisions, i.e., by determining whether 
there is inadequate lead time to permit the development of 
technology necessary to meet these requirements, giving appropriate 
consideration to the cost of compliance within that time frame. EPA 
is not reopening the interpretations provided in the 1994 rulemaking 
in this authorization decision. 59 FR 36969, 36982-36983 (July 20, 
1994).
    \105\ 88 FR 24411, 24415 (April 20, 2023). See also 59 FR 36969, 
36981-36982 (EPA addressed the issue of whether CARB may adopt a 
regulation before it has received an authorization and EPA 
determined CARB may do so), EPA is not reopening the position taken 
in the 1994 rulemaking in this authorization decision.
---------------------------------------------------------------------------

    EPA notes that CARB issued an ``Enforcement Notice'' on March 
30,2023, that pertains to how CARB plans to implement the OGV 
regulation including reporting and other requirements in calendar year 
2023 and once EPA issues its authorization.\106\
---------------------------------------------------------------------------

    \106\ https://ww2.arb.ca.gov/sites/default/files/2023-03/At%20Berth%20Enforcement%20Notice%20-%20March%2030%202023.pdf.
---------------------------------------------------------------------------

    With regard to the implementation timeline for the 2020 At-Berth 
Amendments, in addition to the two-year lead time issue addressed 
above, EPA received comment that stated that insufficient lead time 
exists to develop and modify technologies, permit, and construct needed 
infrastructure.\107\ CARB noted during its rulemaking that the 
construction of emission control systems for vessels, especially for 
tankers and ro-ro vessels, may require years to complete but may vary 
substantially from project to project.\108\ CARB identified recent 
advancements in technology, as well as statements by technology 
providers regarding anticipated further advancements, in support of its 
conclusion that technology should reasonably be available to meet to 
compliance obligation timelines. CARB also noted the alternative 
compliance strategy of the ``Innovate Concept Compliance Option'' and 
the remediation fund for construction projects as providing additional 
pathways to compliance if situations arise in which technological 
challenges are a barrier.\109\
---------------------------------------------------------------------------

    \107\ WSPA at 5.
    \108\ CARB FSOR at 57-58. CARB noted that it considered several 
projects and found that even construction that involved substantial 
new infrastructure at tanker terminals would require only five to 
seven years to complete.
    \109\ Id. at 58.See also CARB's ISOR at III-19-22, and WSPA v 
CARB explained above.
---------------------------------------------------------------------------

    EPA received comments regarding the Remediation Fund that was 
created by the 2020 At-Berth Amendments.\110\ One commenter noted broad 
industry support for the Remediation Fund conceptually but observed 
that CARB had not yet implemented the provision.\111\ Another commenter 
stated that the use of the Remediation Fund does not obviate the need 
for timelines adequate to permit the development of requisite 
technology. Further, this commenter noted that if the Remediation Fund 
were sufficient to demonstrate technological feasibility for purposes 
of an EPA authorization, the logical extension would be that the Clean 
Air Act authorizes the creation of a carbon tax as an emission 
standard. In response, EPA notes that CARB derives its regulatory 
authority to control the emissions from OGVs not from section 202 but 
from its own police power and state law authorities. Further, to the 
extent EPA's waiver and authorization criteria include consideration of 
whether CARB's standards are consistent with section 202(a), this has 
only led EPA to consider whether CARB's standards are technologically 
feasible, within the lead time provided and considering costs.\112\ EPA 
understands the concerns expressed by the commenter that technological 
feasibility should be assessed against technologies that will be 
available within the lead time provided as opposed to demonstrating 
compliance (and feasibility) through the use of a remediation fund. As 
noted above, EPA believes that CARB had identified the necessary 
technologies that can be used to meet the regulatory obligations in the 
lead time provided. EPA concludes that, regardless of the remediation 
fund, CARB's standards are technologically feasible. While the third 
authorization criterion is satisfied without the fund, the fund is an 
additional compliance flexibility which regulated entities may in their 
discretion use to comply with the 2020 At-Berth Amendments.\113\ The 
opponents of the authorization have not demonstrated that the fund 
requires regulated entities to incur excessive costs or that the fund 
otherwise does not provide a reasonable, additional pathway toward 
compliance.\114\
---------------------------------------------------------------------------

    \110\ Maersk at 10; PMSA at 17-18.
    \111\ Maersk at 10, this commenter also noted that CARB was 
restricting the fund inappropriately and noted other concerns.
    \112\ See 88 FR 20688 (April 6, 2023).
    \113\ EPA does not conduct a policy review of how CARB chooses 
to enforce its standards, but EPA does assess the costs of the 
standards and the compliance pathways provided to the regulated 
parties. See Engine Manufacturers Association v South Coast Air 
Quality District, 541 U.S. 246 (2004). This distinction of standards 
on the one hand and the methods of standards enforcement on the 
other is significant. As noted, EPA only reviews the methods or 
enforcement procedures in terms of the three authorization criteria. 
Additional questions regarding the propriety of the State's measures 
is outside the scope of EPA's authorization review under section 
209(e).
    \114\ EPA's expectation is that CARB will reasonably implement 
the program, but EPA's role is not generally one of oversight of 
CARB's standards once EPA has finalized its adjudicatory decision 
and issued an authorization.
---------------------------------------------------------------------------

    EPA received several comments regarding the feasibility of the 2020 
At-Berth Amendments as applied to tankers and ro-ros.\115\ Commenters 
noted that there are no international design and safety standards for 
shore power, including issues pertaining to the ability of tankers to 
use shore power and the lack of a standard voltage for ro-ro vessels. 
With regard to tankers, commenters noted that there are currently no 
feasible alternatives to shore power and no practical pathways without 
shore power and that innovative concepts are not developed at this 
time. Commenters also noted that there no CARB approved emission 
control systems (CAECS) at this time.
---------------------------------------------------------------------------

    \115\ PMSA at 7-17, Maersk, WSPA.
---------------------------------------------------------------------------

    CARB addressed the concerns raised by the commenters during its 
rulemaking for the 2020 At-Berth Amendments. With regard to shore power 
for tankers, CARB acknowledged that while there is only one example of 
shore power for a tanker vessel and that not every tanker and tanker 
berth in California would be able to use shore power in the same way, 
the one example (T121) does demonstrate that shore power is a feasible 
strategy for reducing auxiliary engine emissions from tanker 
vessels.\116\ In addition, and

[[Page 72473]]

as noted previously, the regulation provides allowances for boiler 
emissions and the tanker only needs to reduce auxiliary engine 
emissions.\117\ CARB also addressed the viability of capture and 
control systems for tankers during its rulemaking and within its 
authorization request.\118\ Both within CARB's authorization request 
and its rulemaking documents it was acknowledged that the 2020 At-Berth 
Amendments were technology forcing and may require a number of 
compliance pathways. CARB also noted the incentive funding available 
for emissions reduction technologies.\119\
---------------------------------------------------------------------------

    \116\ CARB FSOR at 259.
    \117\ Id. See also CARB ISOR at III-18-19 and WSPA v CARB at 11-
12.
    \118\ CARB ISOR at III-19-22. CARB assumed land-based capture 
and control systems that would be more complex than the existing 
system in demonstration at the Port of Los Angeles. As noted 
previously, CARB conducted conversations with both the tanker 
industry and capture and control manufacturers. ``A land-based 
capture and control system for tanker vessels would likely consist 
of a large, centralized exhaust gas treatment system on-shore, with 
ducting on the wharf connecting to a positioning boom located on the 
berth or nearby platform constructed to house the positioning boom. 
Existing capture and control systems would also need to be scaled up 
from the existing systems in order to handle the higher exhaust flow 
from tanker vessels, as tanker vessels have a higher combined power 
demand for both auxiliary engines and boilers at berth when compared 
to other all other vessel categories except cruise vessels.''
    \119\ CARB FSOR at 342.
---------------------------------------------------------------------------

    With regard to safety-related issues that could be created by 
complying with the 2020 At-Berth Amendments, CARB noted that ``Through 
regular conversations with the tanker industry, staff is aware of many 
of the claims raised by these comments regarding land-based emissions 
capture systems, especially concerning the lack of space, structural 
stability, fire/explosion safety, and electrical safety of these 
systems. CARB agrees that any emission control system needs to be safe, 
and therefore must address identified safety concerns. Staff does not 
believe that technical issues, such as static discharge, are 
unsurmountable. Tanker vessels already have strategies in place to 
introduce inert gas into tanks during the offloading process. 
Furthermore, capture systems are substantially decoupled from a tanker 
vessel, directing the exhaust gas from engines and boilers taken from a 
vessel's stack onto a barge- or land-based system for treatment.'' 
\120\ CARB also responded to the concerns expressed by one commenter 
regarding the inability of steamships to turn off their boilers due to 
thermal dynamics which require marine propulsion engines to stay hot as 
well as the inability of some steamships which have been retrofitted to 
run on liquified natural gas (LNG) to turn off their generators as this 
would result the inability to control tank pressure.\121\ CARB has 
indicated that LNG ships can receive approval to operate under the 2020 
At Berth Requirements as a CARB Approved Emissions Control System 
(``CAECS'') upon submission of adequate testing data demonstrating 
compliance with the 2020 At-Berth Amendments. Also, additional 
technological improvements and developments may occur for capture and 
control technologies for these LNG steamships. Finally, in the event 
that such LNG vessels are demonstrating efforts toward capture and 
control technologies but are faced with development and supply issues 
they can be eligible for the remediation fund.
---------------------------------------------------------------------------

    \120\ Id.
    \121\ Pasha Hawaii.
---------------------------------------------------------------------------

    CARB also addressed the feasibility of capture and control systems. 
``Capture and control systems have already been used on many other OGV 
categories, and in other industries. Many of the hurdles identified by 
the tanker industry are already known and understood by developers who 
believe they can be addressed. Although it is true there has not yet 
been a capture and control system tested and approved for tanker 
vessels, due to the lack of any emissions control requirements until 
the approval of this Regulation, technology providers have informed 
CARB that alternate control technology, as proven on other vessel 
categories, can be adapted to tanker vessels.'' \122\ CARB also 
explained the rationale behind CARB's assumption that tanker vessels 
will utilize land-based capture and control systems in staff's analyses 
was largely due to a lack of collective interest expressed by the 
tanker industry in regards to the development of shore power for tanker 
vessels. According to CARB, ``capture and control systems can also 
treat boiler emissions. This provides an advantage for controlling 
tanker emissions, as shore power cannot reduce boiler emissions because 
boilers on OGVs are, in general, not electric powered. Retrofitting to 
electric boilers would be impractical, requiring large auxiliary 
engines, and replacement electric boilers. This is unlikely to 
successfully accomplish because of space and operational constraints 
with vessels designs that are generally not flexible enough to undergo 
such a redesign and would add substantial costs on top of the costs 
already considered. The additional time allowed for implementation of 
tanker vessel control requirements (2025 and 2027) will also provide 
the opportunity for the development, construction and deployment of 
safe land-based control systems to use on tanker vessels, in addition 
to developing and deploying safety protocols and establishing 
operational requirements. However, that does not preclude a tanker 
vessel from selecting other options for compliance, including a barge-
based capture and control system, where feasible.'' \123\
---------------------------------------------------------------------------

    \122\ CARB noted that ``Technology providers have used capture 
and control technology for regulatory compliance on container 
vessels and have used it on bulk and ro-ro vessels. CARB believes 
that the technology to control emissions on tanker vessels is 
similar in many aspects to the systems currently in existence and 
can be reasonably adapted to tankers given the time provided to the 
tanker industry. There are no restrictions in the Regulation that 
would prevent tanker vessels from utilizing other forms of emissions 
control technologies, including shore power or barge-based capture 
and control systems.'' CARB ISOR at Chapter III-19 through 22.
    \123\ See FSOR at 548.
---------------------------------------------------------------------------

    CARB noted that the Innovative Concept compliance option described 
in section 93130.17 provides flexibility by allowing vessels or 
terminal operators additional time to identify opportunities for 
implementing a compliance strategy that reduces vessel emissions while 
at berth. Approved Innovative Concept projects are valid for up to 5 
years and can be renewed for another compliance period of up to 5 years 
as long as the qualifications in the Regulation are maintained (see 
section 93130.17(a)(7)). Innovative Concept project applicants can 
apply for renewal indefinitely as long as the project continues to meet 
the qualifications listed in the Regulation. ``As such, the Innovative 
Concept pathway can be utilized as a terminal's main pathway to 
compliance or as a bridge to reduce emissions while longer term project 
installations are taking place.'' \124\
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    \124\ See FSOR at 547-549; ISOR at III-16; CEQA Responses, 
Master Response 4 at 17-24.
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    Lastly, CARB noted that the localized health benefits achieved by 
the 2020 At-Berth Amendments cannot wait for an international body to 
set a shore power standard, and that this circumstance also existed in 
2007 time period when shore power was first applied to other vessels 
with a positive resolution before such standards were set. CARB noted 
its expectation that vessel operators and terminals will work together 
to utilize shore power systems that work best for all parties while the 
international shore power standard is being established. If not, CARB 
noted the flexibilities provided within the regulation.\125\
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    \125\ See CARB FSOR at 78-79, 99-100.

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[[Page 72474]]

d. California's 2020 At-Berth Regulations Are Consistent With Section 
202(a)
    As explained above, EPA has historically applied a consistency test 
under section 202(a) that calls for the Administrator to first review 
whether adequate technology already exists, and if it does not, whether 
there is adequate time to develop and apply the technology before the 
standards go into effect. After a review of the record, information, 
and comments received in this proceeding, EPA has determined that the 
opponents of the authorization request for CARB's regulations have not 
demonstrated that these regulations are inconsistent with section 
202(a). As noted above, CARB's authorization request indicated that 
control technology either presently exists or is in use, that the 
previously regulated OGV types are reasonably projected to comply at 
the newly regulated ports and terminal, and that several years remain 
until the 2027 compliance date for the new regulated terminals. For new 
vessel categories, the opponents of the authorization request have not 
carried their burden of demonstrating that there is insufficient lead 
time for regulated ro-ro and tanker vessels to meet their compliance 
dates. CARB has identified a number of existing technologies that can 
be used to comply with the regulations and has noted that the 
Regulation provides ample lead time for equipment adaptation, 
permitting, and installation. Therefore, because CARB has identified a 
number of existing technologies and a reasonable projection of the 
development and modification of technologies within the lead time 
provided, and because opponents of the authorization have not 
demonstrated why such projections are unreasonable, the opponents of 
the authorization have not met their burden of proof to demonstrate 
technological infeasibility. Independent of EPA's assessment of CARB's 
identification of technologies and reasonable technology projections, 
CARB has also demonstrated a number of technology-based alternative 
compliance pathways in order to demonstrate the feasibility of the 2020 
At-Berth Amendments and opponents have not demonstrated why such 
pathways are unreasonable given the amount of lead time. As noted 
above, the findings of the California State Superior Court in WSPA v. 
CARB adds further support to EPA's assessment of feasibility.
    In addition, the Regulation provides flexibilities to account for 
unanticipated delays. These include a limited number of exemptions for 
regulated vessel fleets and terminals, and an option to remediate 
emissions if equipment or construction delays occur. These exemptions 
as well as the remediation fund are also available if there are delays 
with the operation of CAECS or physical or operational constraints that 
have been identified in port and terminal compliance plans and under 
certain conditions.
    Flexibility also exists in the Innovative Concepts Compliance 
Option that allows regulated entities to reduce emissions from other 
sources in and around the port if it achieves equal emissions benefits 
as reducing emissions from vessels at berth.
    The opponents of the authorization have not demonstrated why the 
regulatory compliance options, considered either separately or 
together, render the At-Berth Regulation infeasible or inconsistent 
with section 202(a).
    Therefore, based on the record before us, EPA cannot find that the 
opponents of the 2020 At-Berth Amendments authorization have met their 
requisite burden of proof to demonstrate that such requirements are 
inconsistent with section 202(a). Thus, EPA cannot deny CARB's 2020 At-
Berth Amendments authorization request on this basis and therefore I 
cannot deny the authorization request based on the third authorization 
criterion.

IV. Other Issues

    EPA has long construed section 209 as limiting the Agency's 
authority to deny California's requests for waivers and authorizations 
to their respective three listed criteria under section 209(b) and 
section 209(e)(2)(A). This narrow review approach is supported by 
decades of waiver and authorization practice and judicial precedent. In 
MEMA I, the D.C. Circuit held that the Agency's inquiry under section 
209(b) is ``modest in scope.'' \126\ The D.C. Circuit further noted 
that ``there is no such thing as a `general duty' on an administrative 
agency to make decisions based on factors other than those Congress 
expressly or impliedly intended the agency to consider.\127\ In MEMA 
II, the D.C. Circuit again rejected an argument that EPA must consider 
a factor outside the 209(b) statutory criteria concluding that doing so 
would restrict California's ability to ``exercise broad discretion.'' 
\128\ EPA's duty, in the authorization context, is thus to grant 
California's authorization request unless one of the three listed 
criteria is met. ``[S]ection 209(b) sets forth the only waiver 
standards with which California must comply . . . If EPA concludes that 
California's standards pass this test, it is obligated to approve 
California's waiver application.'' \129\ EPA has therefore consistently 
declined to consider factors outside the three statutory criteria 
listed in section 209(b) and 209(e)(2)(A).
---------------------------------------------------------------------------

    \126\ MEMA I at 1105.
    \127\ Id. at 1116.
    \128\ MEMA II at 453.
    \129\ Id. at 463.
---------------------------------------------------------------------------

    EPA received comment that the 2020 At-Berth Amendments improperly 
make entities other than OGV's, such as ports and terminals, 
responsible for any emission standards violations, even if this ``third 
party'' does not exercise control over the regulated OGVs.\130\ This 
commenter argued that the Clean Air Act, including section 202(a) and 
209, does not authorize EPA to impose penalties on third parties (EPA 
assumes the commenter means this to mean that the compliance path of 
the remediation fund is a ``penalty''). Alternatively, this commenter 
stated that by making a facility directly liable for emissions from 
third-party nonroad vehicles, ``CARB is inappropriately instituting an 
indirect source rule framework.'' \131\ As such, this commenter claimed 
that CARB's regulations exceed the authority granted by sections 202(a) 
and 209 of the Clean Air.
---------------------------------------------------------------------------

    \130\ PMSA at 3.CARB's regulations impose requirements both on 
terminal operators and ports that are designed to ensure emission 
reductions associated with OGVs at berth at their locations. As 
specified in 93130.09, operators of terminals that received 20 or 
more visits must ensure that the terminals are equipped with a CAECS 
that will enable vessels to comply with the At-Berth regulation 
while at berth and if the terminal operator in unable to do so it 
may use a terminal incident event, pay into the remediation fund, or 
use an approved Innovative Concept to comply (if the vessel informs 
the terminal that the regulation will be complied with by onboard 
technologies than the terminal operator has no further 
responsibility. Similarly, ports that receive 20 or more visits must 
meet 93130.13 requirements. This includes providing any equipment or 
infrastructure to comply that is outside the terminal operators or 
vessel operators' contractual ability to provide. If the terminal 
operator and/or vessel operator elects to use CARB-approved 
emissions control equipment that does not need port assistance, then 
the port has no additional responsibility.
    \131\ Id, at 4.
---------------------------------------------------------------------------

    CARB addressed this issue in its own rulemaking.\132\ CARB noted 
PMSA's comment and its belief that while there is a role for enhanced 
marine terminal and port responsibility, such responsibility should be 
limited only to circumstances within the control of the port or marine 
terminal and should avoid the hallmarks of an Indirect Source 
Regulation. CARB also noted PMSA's comment that ``An indirect source 
rule is a regulation which assigns a liability and responsibility to a 
facility to reduce indirect mobile source

[[Page 72475]]

emissions which that facility does not control, when the mobile source 
can be directly regulated to reduce emissions through a traditional 
emissions standard, engine standard, or other in-use standard. We are 
concerned that many of these hallmarks are present in the proposed 
control measure when they were successfully avoided in the current 
regulation.'' \133\
---------------------------------------------------------------------------

    \132\ CARB FSOR at 130-131.
    \133\ Id.
---------------------------------------------------------------------------

    CARB responded to these comments and noted it developed the At-
Berth regulation under CARB's authorities for regulating air toxics, 
criteria pollutants, and GHG emissions. CARB noted that ``The purpose 
of the Regulation is to achieve emissions reductions from each vessel 
visit. The compliance obligations under the Regulation involve 
minimizing emissions from each vessel visit through various potential 
actions specific to that vessel visit, and reporting information needed 
to substantiate the required actions for that visit. Unlike an indirect 
source rule, the Regulation does not ``cap'' emissions at an entire 
facility or otherwise seek to reduce emissions below a certain 
facility-wide level. While the Regulation does regulate ports and 
terminals, it does so only because regulating those entities has proven 
essential to ensuring each vessel visit is able to use an approved 
emission-reducing control technology.'' \134\
---------------------------------------------------------------------------

    \134\ CARB At-Berth Authorization Request at 3. FSOR at 93.
---------------------------------------------------------------------------

    EPA first notes that it only received an authorization request from 
CARB pursuant to section 209(e) of the CAA. CARB sought no approval of 
the 2020 At-Berth Amendments under any other provision of the CAA, 
including as an ISR. EPA is therefore evaluating CARB's request solely 
within the confines of section 209. As noted above, EPA is confined to 
the authorization criteria in section 209(e)(2)(A). Therefore, EPA 
cannot deny CARB's request based on an argument that such standards are 
not subject to section 209. EPA notes that CARB has set a ``standard'' 
such as numerical emission levels or acceptable emission-control 
technologies for specific ocean-going vessels. The difference between 
such standards, that are preempted under section 209(e) as directed to 
reducing emissions from nonroad engines and vehicles, and how such 
standards are enforced is immaterial as to the threshold question as to 
whether such standards are subject to section 209.\135\ Therefore, to 
the extent that the At-Berth regulations are properly considered 
standards relating to the control of emissions from nonroad engines and 
vehicles and preempted under section 209(e) of the CAA (and EPA 
believes they are so preempted), CARB's policy choice of how it chooses 
to enforce such standards is not subject to EPA review other than 
whether such enforcement procedures meet the criteria of section 
209(e).\136\ In addition, the scope and type of enforcement procedures 
that CARB implements is subject to its state law authority. As such, 
sections 202 and 209 of the CAA do not create or constrain California's 
regulatory authority under its police power. The requirement that 
CARB's standards and accompanying enforcement procedures be consistent 
with section 202(a) only pertains to whether such requirements are 
technologically feasible, within the lead time given and considering 
costs and whether the California test procedures are inconsistent with 
federal test procedures.
---------------------------------------------------------------------------

    \135\ See Engine Manufacturers Association v. South Coast Air 
Quality Management District, 541 U.S. 246 (2004). See also National 
Association of Home Builders v. San Joaquin Valley, 627 F.3d 730, 
736 (9th Cir. 2010) (``We agree with NAHB's premise that under 
section 209(e)(2) the existence of ``standards'' or ``other 
requirements'' is a question separate from how the standards or 
requirements are enforced. As we shall explain, however, NAHB's 
claim of preemption does not follow from its premise. Even if Rule 
9510 establishes standards or requirements, those requirements do 
not relate to the control of emissions from construction equipment. 
In so holding, we think it crucial that the District adopted Rule 
9510 under the Act's `indirect source review program' ''). Rule 9510 
was subsequently approved by EPA as a California SIP revision (86 FR 
33542 (March 21, 2018)). In this instance CARB did not adopt the OGV 
At-Berth regulations under a claim of indirect source authority and 
the emissions being addressed are those from the mobile sources 
directly. Therefore, EPA is evaluating CARB's 2020 At-Berth 
Amendments under section 209 of the CAA.
    \136\ Section 209(e)(2)(A)(iii) provides, for example, that 
``California's standards and accompanying enforcement procedures are 
not consistent with this section.''
---------------------------------------------------------------------------

    Second, EPA notes that to the extent the requirements are not 
mobile source standards or not associated compliance or enforcement 
mechanisms to ensure the at-berth requirements are met, then such 
standards or mechanisms would not be considered preempted by section 
209(e)(1) of the CAA and thus would not require an authorization by EPA 
before CARB enforce such standards. EPA does not consider the at-berth 
requirements, as they apply to terminals and ports, to be an indirect 
source review rule or some other type of rule under the Clean Air Act 
other than a mobile source requirement, but to the extent they are of a 
non-mobile source type then EPA notes that such rules are not subject 
to EPA's approval unless they are submitted as part of a SIP 
request.\137\ Further, EPA notes that section 116 of the Clean Air Act 
sets forth, among other exceptions, that unless otherwise preempted by 
section 209 nothing precludes a State from adopting or enforcing any 
standard or limitation respecting emissions of air pollutants.\138\
---------------------------------------------------------------------------

    \137\ To the extent that there is any other finding regarding 
the applicability of section 110 of the CAA or any other provision 
related to ISR, and that CARB's At-Berth Regulations are not 
``standards and other requirements relating to control of emissions 
from such vehicles or engines'' (as found in the preemption 
provision in section 209(e)(2)(A) of the CAA) then there is no 
affirmative requirement that the regulation be submitted to EPA for 
approval.
    \138\ 42 U.S.C. 7416.
---------------------------------------------------------------------------

    As noted above, EPA received comment concerning the legality of the 
At-Berth tanker requirements due to a legal challenge the commenter 
brought in California state court and that the commenter continues to 
pursue.\139\ This commenter recommended that EPA not act on CARB's 
authorization request pending the court's decision. EPA notes that its 
statutory duty under section 209 of the Clean Air Act is to confine its 
review to the criteria set forth for a waiver under section 209(b) or 
an authorization under section 209(e).\140\ To the extent the 
commenter, as a petitioner in state court, is raising legal challenges 
to CARB's regulations that do not pertain to the section 209 criteria 
then the commenter is free to do so while EPA's administrative process 
is on-going and even after EPA's reaches its final authorization 
decision.\141\ Regardless, EPA's issuance of an authorization under the 
terms of section 209(e) merely allows California to no longer be 
subject to the preemption provision, and in so doing effectively 
removes that barrier to the State's enforcement of its regulations upon 
EPA's issuance of the authorization. EPA's authorization does not 
preclude a court from otherwise finding its own violations of law or 
preventing CARB's enforcement of its regulations. Therefore, EPA 
believes it is not necessary to wait for a state's court action on the 
At-Berth Regulation or to deny or delay an authorization on this basis.
---------------------------------------------------------------------------

    \139\ WSPA at 7, citing Western States Petroleum Ass'n v. 
California Air Resources Bd, filed March 16, 2023.
    \140\ See MEMA I, MEMA II.
    \141\ For example, WSPA raises a number of issues under 
California state law (e.g. CEQA) that do not pertain to the Clean 
Air Act section 209(e) criteria and EPA takes no position regarding 
such issues.
---------------------------------------------------------------------------

IV. Decision

    After evaluating CARB's amendments to its At-Berth regulations 
described above, EPA is granting CARB's

[[Page 72476]]

authorization request for its 2020 At-Berth Amendments. Based on CARB's 
submissions, relevant adverse comment, and other comments in the 
record, EPA is granting an authorization under section 209(e)(2)(A) of 
the CAA for CARB's 2020 At-Berth Amendments. The opponents of the 
authorization request have not met their burden of proof to demonstrate 
or to adequately support an EPA finding that CARB and its 2020 At-Berth 
Amendments fail to meet the three authorization criteria in section 
202(e)(2)(A)(i)-(iii) of the CAA.

A. Judicial Review

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. This section provides, in part, that petitions for 
review must be filed in the United States Court of Appeals for the 
District of Columbia Circuit: (i) when the agency action consists of 
``nationally applicable regulations promulgated, or final actions 
taken, by the Administrator,'' or (ii) when such action is locally or 
regionally applicable, but ``such action is based on a determination of 
nationwide scope or effect and if in taking such action the 
Administrator finds and publishes that such action is based on such a 
determination.'' For locally or regionally applicable final actions, 
the CAA reserves to the EPA complete discretion whether to invoke the 
exception in (ii).
    To the extent a court finds this final action to be locally or 
regionally applicable, the Administrator is exercising the complete 
discretion afforded to him under the CAA to make and publish a finding 
that this action is based on a determination of ``nationwide scope or 
effect'' within the meaning of CAA section 307(b)(1) for several 
reasons.\142\ This final action grants an authorization for amendments 
to California's At-Berth Regulations that were previously authorized by 
EPA. As such, this final action will affect any person who owns, 
operates, charters, or leases any United States or foreign-flag OGV 
that visits a California port, terminal, or berth; any person who owns, 
operates, or leases a port, terminal, or berth located where OGVs 
visit, or any person who owns, operates, or leases a CARB approved 
CAECS for OGV auxiliary engines or tanker auxiliary boilers. 
Furthermore, the At-Berth Regulations, and the amendments to those 
regulations that are the subject of today's action, the 2020 At-Berth 
Amendments, are part of California's nonroad emissions program that, 
together with its on-highway emissions program, are regulatory programs 
that EPA may waive under CAA section 209. As required by statute, in 
evaluating the authorization criteria in this action, EPA considers not 
only the 2020 At-Berth Amendments in isolation, but in the context of 
the entire California nonroad emission program. See CAA section 
209(e)(2)(A) (requiring that the protectiveness finding be made for 
California's standards ``in the aggregate''). Moreover, EPA generally 
applies a consistent statutory interpretation and analytical framework 
in evaluating and deciding various authorization and waiver requests 
under CAA section 209. EPA also relies on the extensive body of D.C. 
Circuit case law developed by that Court since 1979 as it has reviewed 
and decided judicial challenges to these actions. As such, judicial 
review of any challenge to this action in the D.C. Circuit will 
centralize review of national issues in that Court and advance other 
Congressional principles underlying this CAA provision of avoiding 
piecemeal litigation, furthering judicial economy, and eliminating the 
risk of inconsistent judgments. For these reasons, the Administrator is 
exercising the complete discretion afforded to him by the CAA and 
hereby finds that this final action is based on a determination of 
nationwide scope or effect for purposes of CAA section 307(b)(1) and is 
hereby publishing that finding in the Federal Register. Under section 
307(b)(1) of the CAA, petitions for judicial review of this action must 
be filed in the United States Court of Appeals for the District of 
Columbia Circuit by June 20, 2023.
---------------------------------------------------------------------------

    \142\ In deciding whether to invoke the exception by making and 
publishing a finding that this final action is based on a 
determination of nationwide scope or effect, the Administrator has 
also taken into account a number of policy considerations, including 
his judgment balancing the benefit of obtaining the D.C. Circuit's 
authoritative centralized review versus allowing development of the 
issue in other contexts and the best use of Agency resources.
---------------------------------------------------------------------------

B. 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).

Michael S. Regan,
Administrator.
[FR Doc. 2023-23261 Filed 10-19-23; 8:45 am]
BILLING CODE 6560-50-P


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