76468 Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices 

collection as described below. This is a 

proposed extension of the ICR, which is 

currently approved through March 31, 

2016. An Agency may not conduct or 

sponsor and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. 

DATES: Comments must be submitted on 

or before February 8, 2016. 

ADDRESSES: Submit your comments, 

referencing by Docket ID No. EPA–HQ– 

RCRA–2015–0731, online using 

www.regulations.gov (our preferred 

method), by email to rcra-docket@

epa.gov, or by mail to: EPA Docket 

Center, Environmental Protection 

Agency, Mail Code 28221T, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change including any 

personal information provided, unless 

the comment includes profanity, threats, 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. 

FOR FURTHER INFORMATION CONTACT: Josh 

Smeraldi, Office of Resource 

Conservation and Recovery (mail code 

5304P), Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460; telephone 

number: 703–308–0441; fax number: 

703–308–0514; email address: 

Smeraldi.josh@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Supporting documents which explain in 

detail the information the EPA will be 

collecting are available in the public 

docket for this ICR. The docket can be 

viewed online at www.regulations.gov 

or in person at the EPA Docket Center, 

WJC West, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. The telephone number for the 

Docket Center is 202–566–1744. For 

additional information about EPA’s 

public docket, visit http://www.epa.gov/ 

dockets. 

Pursuant to section 3506(c)(2)(A) of 

the PRA, the EPA is soliciting comments 

and information to enable it to: (i) 

Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the Agency, including 

whether the information will have 

practical utility; (ii) evaluate the 

accuracy of the Agency’s estimate of the 

burden of the proposed collection of 

information, including the validity of 

the methodology and assumptions used; 

(iii) enhance the quality, utility, and 

clarity of the information to be 

collected; and (iv) minimize the burden 

of the collection of information on those 

who are to respond, including through 

the use of appropriate automated 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. The EPA will consider the 

comments received and amend the ICR 

as appropriate. The final ICR package 

will then be submitted to OMB for 

review and approval. At that time, the 

EPA will issue another Federal Register 

notice to announce the submission of 

the ICR to OMB and the opportunity to 

submit additional comments to OMB. 

Abstract: The U.S. Environmental 

Protection Agency (EPA) has finalized 

an alternative set of generator 

requirements applicable to laboratories 

owned by eligible academic entities, as 

defined in the final rule. The rule, 

which establishes a Subpart K within 40 

CFR Part 262, provides a flexible and 

protective set of regulations that address 

the specific nature of hazardous waste 

generation and accumulation in 

laboratories owned by colleges and 

universities, and teaching hospitals and 

non-profit research institutes that are 

either owned by or formally affiliated 

with a college or university. In addition, 

the rule allows colleges and universities 

and these other eligible academic 

entities formally affiliated with a college 

or university the discretion to determine 

the most appropriate and effective 

method of compliance with these 

requirements by allowing them the 

choice of managing their hazardous 

wastes in accordance with the 

alternative regulations as set forth in 

Subpart K or remaining subject to the 

existing generator regulations. 

Form Numbers: None. 

Respondents/affected entities: Entities 

potentially affected by this action are 

private sector as well as State, Local, or 

Tribal Governments. 

Respondent’s obligation to respond: 

required to obtain or retain a benefit 

(Sections 2002, 3001, 3002, 3004 of 

RCRA). 

Estimated number of respondents: 99. 

Frequency of response: On occasion. 

Total estimated burden: 27,719 hours 

Burden is defined at 5 CFR 1320.03(b). 

Total estimated cost: Estimated Total 

Annual Cost: $1,322,414, which 

includes $1,218,693 annualized labor 

costs and $103,720 annualized capital 

or O&M costs. 

Changes in Estimates: The burden 

hours are likely to stay substantially the 

same. 

Dated: November 23, 2015. 

Barnes Johnson, 

Director, Office of Resource Conservation and 

Recovery. 

[FR Doc. 2015–31045 Filed 12–8–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2014–0533; FRL–9939–91– 

OAR] 

California State Nonroad Engine 

Pollution Control Standards; Large 

Spark-Ignition (LSI) Engines; New 

Emission Standards and In-Use Fleet 

Requirements; Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of decision. 

SUMMARY: The Environmental Protection 

Agency (EPA) is granting the California 

Air Resources Board’s (CARB’s) request 

for authorization of California’s 2008 

amendments to its new large sparkignition nonroad engines regulation 

(2008 LSI Amendments). EPA is also 

confirming that CARB’s 2010 

amendments to its in-use fleet average 

emission requirements (2010 LSI Fleet 

Amendments) are within the scope of 

EPA’s prior authorization. This decision 

is issued under the authority of the 

Clean Air Act (‘‘CAA’’ or ‘‘Act’’). 

DATES: Petitions for review must be filed 

by February 8, 2016. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2014–0533. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, are contained in the 

public docket. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket in the EPA 

Headquarters Library, EPA West 

Building, Room 3334, located at 1301 

Constitution Avenue NW, Washington, 

DC. The Public Reading Room is open 

to the public on all federal government 

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

p.m.; generally, it is open Monday 

through Friday, excluding holidays. The 

telephone number for the Reading Room 

is (202) 566–1744. The Air and 

Radiation Docket and Information 

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

oar/docket.html. The electronic mail 

(email) address for the Air and 

Radiation Docket is: a-and-r-Docket@

epa.gov, the telephone number is (202) 

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

566–9744. An electronic version of the 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices 76469 

1EPA granted an authorization for these LSI 

regulations at 71 FR 29623 (May 15, 2006). 

2EPA granted an authorization for these LSI 

regulations at 71 FR 75536 (December 15, 2006). 

3The term ‘‘off-road’’ is used interchangeably 

with ‘‘nonroad’’ within this decision. 

4EPA granted an authorization for these LSI 

regulations at 77 FR 20388 (April 12, 2012). 

5CARB adopted the 2008 LSI Amendments on 

November 21, 2008 (see Resolution 08–42 at EPA– 

HQ–OAR–2014–0533–0008). 

6CARB adopted the 2010 LSI Fleet Amendments 

on December 17, 2010 (see Resolution 10–48 at 

EPA–HQ–OAR–2014–0533–0024). 

7 59 FR 36969 (July 20, 1994). 

8See 62 FR 67733 (December 30, 1997). The 

applicable regulations, now in 40 CFR part 1074, 

subpart B, § 1074.105, provide: 

(a) The Administrator will grant the authorization 

if California determines that its standards will be, 

in the aggregate, at least as protective of public 

health and welfare as otherwise applicable federal 

standards. 

(b) The authorization will not be granted if the 

Administrator finds that any of the following are 

true: 

(1) California’s determination is arbitrary and 

capricious. 

(2) California does not need such standards to 

meet compelling and extraordinary conditions. 

(3) The California standards and accompanying 

enforcement procedures are not consistent with 

section 209 of the Act. 

(c) In considering any request from California to 

authorize the state to adopt or enforce standards or 

other requirements relating to the control of 

emissions from new nonroad spark-ignition engines 

smaller than 50 horsepower, the Administrator will 

give appropriate consideration to safety factors 

(including the potential increased risk of burn or 

fire) associated with compliance with the California 

standard. 

public docket is available through the 

federal government’s electronic public 

docket and comment system. You may 

access EPA dockets at http://

www.regulations.gov. After opening the 

www.regulations.gov Web site, enter 

EPA–HQ–OAR–2014–0533 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record. Although a 

part of the official docket, the public 

docket does not include Confidential 

Business Information (‘‘CBI’’) or other 

information whose disclosure is 

restricted by statute. 

EPA’s Office of Transportation and 

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

page that contains general information 

on its review of California waiver 

requests. Included on that page are links 

to prior waiver Federal Register notices, 

some of which are cited in today’s 

notice; the page can be accessed at 

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

FOR FURTHER INFORMATION CONTACT: 

David Dickinson, Attorney-Advisor, 

Transportation Climate Division, Office 

of Transportation and Air Quality, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue (6405J), NW., 

Washington, DC 20460. Telephone: 

(202) 343–9256. Fax: (202) 343–2800. 

Email: dickinson.david@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. California’s LSI Regulations 

CARB promulgated its first LSI 

regulations in 1999, applicable to new 

LSI engines (1999 LSI regulations).1 The 

1999 LSI regulations established 

exhaust emission standards and 

associated test procedures for LSI 

engines based upon engine 

displacement. The exhaust emission 

standards applicable to 2002 and 

subsequent model years (MYs) with 

displacements up to one liter were 

identical to the emission standards 

applicable to California small off-road 

engines (SORE) with engines greater 

than or equal to 225 cubic centimeters. 

CARB subsequently adopted more 

stringent exhaust emission standards for 

engines greater than 225 cubic 

centimeters.2 CARB adopted is initial 

off-road LSI fleet operator regulations on 

May 25, 2006.3 The fleet operator 

regulations are designed to address the 

hydrocarbon and nitrogen oxide 

emissions from the existing LSI engines 

operating in California and require fleets 

to meet certain fleet average emission 

level (FAEL) standards.4

By letter dated June 2, 2014, CARB 

submitted to EPA its request pursuant to 

section 209(e) of the CAA, regarding its 

2008 LSI Amendments which create two 

new subcategories of LSI engines: LSI 

engines with an engine displacement 

less than or equal to 825 cubic 

centimeters (cc) (LSI ≤ 825 cc), and LSI 

engines with an engine displacement 

greater than 825 cc but less than or 

equal to one liter (825cc ≤1.0 L). The 

2008 LSI Amendments establish exhaust 

emission standards for new 2011 and 

subsequent model year (MY) LSI 

engines in each of these new 

subcategories and additionally establish 

more stringent exhaust emission 

standards for 2015 and subsequent MY 

LSI engines with engine displacements 

825cc ≤1.0 L. The 2008 LSI 

Amendments also establish evaporative 

emission standards for 2011 and 

subsequent MY LSI engines within the 

two new subcategories, and the 

amendments provide manufacturers of 

LSI engines used in vehicles that are 

similar to off-highway recreational 

vehicles (OHRVs) the option to use the 

OHRV test and certification 

procedures.5

CARB also submitted its 2010 LSI 

Fleet Amendments for confirmation 

from EPA that such amendments are 

within the scope of a previous EPA 

authorization. These amendments are 

designed to enhance the compliance 

flexibility provisions of the existing LSI 

Fleet regulation. They amend the 

existing limited hours of use (LHU) 

provisions to exempt equipment that 

operates no more than 200 hours per 

year subsequent to January 1, 2011 from 

the fleet average emission standard 

requirements of the LSI Fleet regulation. 

The 2010 LSI Fleet Amendments also 

extend the existing compliance 

extension period that is available if 

CARB has not verified a retrofit 

emission control system, or if one is not 

commercially available, from one year 

to two years and allow for an additional 

two year extension if a retrofit emission 

control system remains unavailable. The 

2010 LSI Fleet Amendments also 

include additional provisions that 

largely clarify existing regulatory 

provisions or provide additional 

compliance flexibility (e.g. revising the 

definitions of ‘‘baseline inventory,’’ 

‘‘operator,’’ and ‘‘airport ground support 

equipment’’; providing an exclusion for 

certain inoperable equipment from the 

FAEL requirements; and providing a 

clarification of the record keeping 

requirements and of the FAEL 

definition).6

B. Clean Air Act Nonroad Engine and 

Vehicle Authorizations 

Section 209(e)(1) of the Act 

permanently preempts any State, or 

political subdivision thereof, from 

adopting or attempting to enforce any 

standard or other requirement relating 

to the control of emissions for new 

nonroad engines or vehicles. States are 

also preempted from adopting and 

enforcing standards and other 

requirements related to the control of 

emissions from non-new nonroad 

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

requires the Administrator, after notice 

and opportunity for public hearing, to 

authorize California to enforce such 

standards and other requirements, 

unless EPA makes one of three findings. 

In addition, other states with attainment 

plans may adopt and enforce such 

regulations if the standards, and 

implementation and enforcement 

procedures, are identical to California’s 

standards. On July 20, 1994, EPA 

promulgated a rule that sets forth, 

among other things, regulations 

providing the criteria, as found in 

section 209(e)(2), which EPA must 

consider before granting any California 

authorization request for new nonroad 

engine or vehicle emission standards.7

EPA later revised these regulations in 

1997.8 As stated in the preamble to the 

1994 rule, EPA has historically 

interpreted the section 209(e)(2)(iii) 

mstockstill on DSK4VPTVN1PROD with NOTICES

76470 Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices 

9See 59 FR 36969 (July 20, 1994). 

10See Engine Manufacturers Association v. EPA, 

88 F.3d 1075, 1087 (D.C. Cir. 1996): ‘‘. . . EPA was 

within the bounds of permissible construction in 

analogizing § 209(e) on nonroad sources to § 209(a) 

on motor vehicles.’’ 

11See supra note 12, at 36983. 

12 ‘‘Waiver of Application of Clean Air Act to 

California State Standards,’’ 36 FR 17458 (August 

31, 1971). Note that the more stringent standard 

expressed here, in 1971, was superseded by the 

1977 amendments to section 209, which established 

that California 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. 

13See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 

627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’). 

14See ‘‘California State Motor Vehicle Pollution 

Control Standards; Amendments Within the Scope 

of Previous Waiver of Federal Preemption,’’ 46 FR 

36742 (July 15, 1981). 

15 40 FR 23103–23104 (May 28, 1975); see also 

LEV I Decision Document at 64 (58 FR 4166 

(January 13, 1993)). 

16 40 FR 23104; 58 FR 4166. 

17 MEMA I, 627 F.2d at 1110 (citing H.R.Rep. No. 

294, 95 Cong., 1st Sess. 301–02 (1977). 

‘‘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).9

In order to be consistent with section 

209(a), California’s nonroad standards 

and enforcement procedures must not 

apply to new motor vehicles or new 

motor vehicle engines. To be consistent 

with section 209(e)(1), California’s 

nonroad standards and enforcement 

procedures must not attempt to regulate 

engine categories that are permanently 

preempted from state regulation. To 

determine consistency with section 

209(b)(1)(C), EPA typically reviews 

nonroad authorization requests under 

the same ‘‘consistency’’ criteria that are 

applied to motor vehicle waiver 

requests. Pursuant to section 

209(b)(1)(C), the Administrator shall not 

grant California a motor vehicle waiver 

if she finds that California ‘‘standards 

and accompanying enforcement 

procedures are not consistent with 

section 202(a)’’ of the Act. Previous 

decisions granting waivers and 

authorizations have noted that state 

standards and enforcement procedures 

are inconsistent with section 202(a) if: 

(1) There is inadequate lead time to 

permit the development of the necessary 

technology giving appropriate 

consideration to the cost of compliance 

within that time, or (2) the federal and 

state testing procedures impose 

inconsistent certification requirements. 

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).10 These principles 

include, among other things, that EPA 

should limit its inquiry to the three 

specific authorization criteria identified 

in section 209(e)(2)(A),11 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: 

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.12

This principle of narrow EPA review 

has been upheld by the U.S. Court of 

Appeals for the District of Columbia 

Circuit.13 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). 

C. Within-the-Scope Determinations 

If California amends regulations that 

were previously authorized by EPA, 

California may ask EPA to determine 

that the amendments are within the 

scope of the earlier authorization. A 

within-the-scope determination for such 

amendments is permissible without a 

full authorization review if three 

conditions are met. First, the amended 

regulations must not undermine 

California’s previous determination that 

its standards, in the aggregate, are as 

protective of public health and welfare 

as applicable federal standards. Second, 

the amended regulations must not affect 

consistency with section 209 of the Act, 

following the same criteria discussed 

above in the context of full 

authorizations. Third, the amended 

regulations must not raise any ‘‘new 

issues’’ affecting EPA’s prior 

authorizations.14

D. Deference to California 

In previous waiver decisions, EPA has 

recognized that the intent of Congress in 

creating a limited review based on the 

section 209(b)(1) criteria was to ensure 

that the federal government did not 

second-guess state policy choices. This 

has led EPA to state: 

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. The whole approach 

of the Clean Air Act is to force the 

development of new types of emission 

control technology where that is needed by 

compelling the industry to ‘‘catch up’’ to 

some degree with newly promulgated 

standards. Such an approach . . . may be 

attended with costs, in the shape of reduced 

product offering, or price or fuel economy 

penalties, and by risks that a wider number 

of vehicle classes may not be able to 

complete their development work in time. 

Since a balancing of these 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.15

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.16

The House Committee Report 

explained as part of the 1977 

amendments to the Clean Air Act, 

where Congress had the opportunity to 

restrict the waiver provision, it elected 

instead to explain California’s flexibility 

to adopt a complete program of motor 

vehicle emission controls. The 

amendment is intended to ratify and 

strengthen the California waiver 

provision and to affirm the underlying 

intent of that provision, i.e., to afford 

California the broadest possible 

discretion in selecting the best means to 

protect the health of its citizens and the 

public welfare.17

E. Burden and Standard of Proof 

As the U.S. Court of Appeals for the 

D.C. Circuit has made clear in MEMA I, 

opponents of a waiver request by 

California bear the burden of showing 

that the statutory criteria for a denial of 

the request have been met: 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices 76471 

18 MEMA I, supra note 19, at 1121. 

19 Id. at 1126. 

20 Id. at 1126. 

21 Id. at 1122. 

22 Id. 

23 Id. 

24 Id. 

25See, e.g., ‘‘California State Motor Vehicle 

Pollution Control Standards; Waiver of Federal 

Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103. 

26See ‘‘California State Nonroad Engine Pollution 

Control Standards; Small Off-Road Engines 

Regulations; Tier 4 Off-Road Compression-Ignition 

Regulations; Exhaust Emission Certification Test 

Fuel for Off-Road Spark-Ignition Engines, 

Equipment, and Vehicles Regulations; Request for 

Within-the-Scope and Full Authorization; 

Opportunity for Public Hearing and Comment,’’ 79 

FR 27801 (November 24, 2014). 

[T]he language of the statute and its 

legislative history indicate that California’s 

regulations, and California’s determinations 

that they must comply with the statute, when 

presented to the Administrator are presumed 

to satisfy the waiver requirements and that 

the burden of proving otherwise is on 

whoever attacks them. California must 

present its regulations and findings at the 

hearing and thereafter the parties opposing 

the waiver request bear the burden of 

persuading the Administrator that the waiver 

request should be denied.18

The Administrator’s burden, on the 

other hand, is to make a reasonable 

evaluation of the information in the 

record in coming to the waiver decision. 

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

too, if the Administrator ignores 

evidence demonstrating that the waiver 

should not be granted, or if he seeks to 

overcome that evidence with 

unsupported assumptions of his own, 

he runs the risk of having his waiver 

decision set aside as ‘arbitrary and 

capricious.’ ’’ 19 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 20

With regard to the standard of proof, 

the court in MEMA I explained that the 

Administrator’s role in a section 209 

proceeding is to: 

[. . .] consider all evidence that passes the 

threshold test of materiality and * * * 

thereafter assess such material evidence 

against a standard of proof to determine 

whether the parties favoring a denial of the 

waiver have shown that the factual 

circumstances exist in which Congress 

intended a denial of the waiver.21

In that decision, the court considered 

the standards of proof under section 209 

for the two findings related to granting 

a waiver for an ‘‘accompanying 

enforcement procedure.’’ Those findings 

involve: (1) Whether the enforcement 

procedures impact California’s prior 

protectiveness determination for the 

associated standards, and (2) whether 

the procedures are consistent with 

section 202(a). The principles set forth 

by the court, however, are similarly 

applicable to an EPA review of a request 

for a waiver of preemption for a 

standard. 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.’’ 22

With regard to the protectiveness 

finding, the court upheld the 

Administrator’s position that, to deny a 

waiver, there must be ‘‘clear and 

compelling evidence’’ to show that 

proposed enforcement procedures 

undermine the protectiveness of 

California’s standards.23 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.24

With respect to the consistency 

finding, the court did not articulate a 

standard of proof applicable to all 

proceedings, but found that the 

opponents of the waiver were unable to 

meet their burden of proof even if the 

standard were a mere preponderance of 

the evidence. Although MEMA I did not 

explicitly consider the standards of 

proof under section 209 concerning a 

waiver request for ‘‘standards,’’ as 

compared to a waiver request for 

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.’’ 25

F. EPA’s Administrative Process in 

Consideration of California’s LSI 

Regulations 

On November 24, 2014, EPA 

published a Federal Register notice 

announcing its receipt of California’s 

authorization request. In that notice, 

EPA invited public comment on the 

2008 LSI Amendments and the 2010 LSI 

Fleet Amendments and provided an 

opportunity to request a public 

hearing.26

EPA requested comment on the 

amendments, as follows: (1) Should 

California’s amendments be considered 

under the within-the-scope analysis, or 

should they be considered under the 

full authorization criteria?; (2) If those 

amendments should be considered as a 

within-the-scope request, do they meet 

the criteria for EPA to grant a withinthe-scope confirmation?; and (3) If the 

amendments should not be considered 

under the within-the-scope analysis, or 

in the event that EPA determines they 

are not within the scope of the previous 

authorization, do they meet the criteria 

for making a full authorization 

determination? 

EPA received no written comments. 

Additionally, EPA received no requests 

for a public hearing. Consequently, EPA 

did not hold a public hearing. 

II. Discussion 

California requested that the 

Administrator grant a full authorization 

for its 2008 LSI Amendments and that 

such amendments meet the three 

authorization criteria found in section 

209(e)(2)(A) of the CAA. We received no 

adverse comment or evidence 

suggesting that these amendments fail to 

meet any of the full authorization 

criteria. 

California also requested that the 

Administrator confirm that the 2010 LSI 

Fleet Amendments detailed above are 

within the scope of a previously granted 

full authorization. California asserted 

that the 2010 LSI Fleet Amendments 

met all three within-the-scope criteria, 

i.e. that the amendments: (1) Do not 

undermine the original protectiveness 

determination underlying California’s 

regulations; (2) do not affect the 

consistency of the regulations with 

section 202(a); and (3) do not raise any 

new issues affecting the prior 

authorizations. We received no adverse 

comments or evidence suggesting a 

within-the-scope analysis is 

inappropriate, or that the 2010 LSI 

Amendments fail to meet any of the 

three criteria for within-the-scope 

confirmation. 

Our analysis of the 2008 LSI 

Amendments in the context of the full 

authorization criteria, and our analysis 

of the 2010 LSI Fleet Amendments in 

the context of the within-the-scope 

criteria, is set forth below. 

A. California’s Protectiveness 

Determination 

Section 209(e)(2)(A)(i) of the CAA 

instructs that EPA cannot grant a full 

authorization if the agency finds that 

California was arbitrary and capricious 

in its determination that its standards 

are, in the aggregate, at least as 

protective of public health and welfare 

as applicable federal standards. CARB’s 

Board made a protectiveness 

determination in Resolution 08–42, 

finding that California’s 2008 LSI 

mstockstill on DSK4VPTVN1PROD with NOTICES

76472 Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices 

27 ‘‘BE IT FURTHER RESOLVED that the Board 

hereby determines, pursuant to section 209(e)(2) of 

the federal Clean Air Act that the emission 

standards and other requirements related to the 

control of emissions adopted as part of these 

regulations are, in the aggregate, at least as 

protective of public health and welfare as 

applicable federal standards, that California needs 

the adopted standards to meet compelling and 

extraordinary conditions, and that the adopted 

standards and accompanying enforcement 

procedures are consistent with the provisions in 

section 209.’’ CARB, Resolution 06–11. This 

Resolution also extends to CARB’s amendment 

requiring LSI engines used in vehicles similar to 

OHRVs to utilize OHRV test procedures. EPA–HQ– 

OAR–2014–0533–0008. 

28CARB Executive Order G–14–014, EPA–HQ– 

OAR–2014–0533–0033. 

29CARB Resolution 10–48, EP–HQ–OAR–2014– 

0533–0024. 

30See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 31 49 FR 18887, 18890 (May 3, 1984); see also 76 

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

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

32CARB, Request for Authorization at 16, and 23. 

EPA–HQ–OAR–2014–0533–0003. 

33 Id. 

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

Amendments will not cause the 

California emission standards, in the 

aggregate, to be less protective of public 

health and welfare than applicable 

federal standards.27 CARB presents that 

California’s exhaust emission standards 

applicable to LSI ≤ 825 cc and 825 cc 

≤ LSI≤ 1.0 L are at least as protective of 

public health and welfare as applicable 

federal exhaust emission standards. 

Similarly CARB’s Executive Officer 

found that California’s evaporative 

emission requirements applicable to 

2011 and subsequent MY engines less 

than or equal to one liter are, in the 

aggregate, at least as protective as 

applicable federal standards.28

EPA did not receive any comments 

challenging California’s protectiveness 

determination. Therefore, based on the 

record before us, EPA finds no evidence 

in the record that demonstrates 

California was arbitrary and capricious 

in its determination that its 2008 LSI 

Amendments are, in the aggregate, at 

least as protective of public health and 

welfare as applicable federal standards. 

Similarly, CARB’s 2010 LSI Fleet 

Amendments must not undermine 

California’s previous determination that 

its standards, in the aggregate, are as 

protective of public health and welfare 

as applicable federal standards. In 

adopting the 2010 LSI Fleet 

Amendments CARB made a 

protectiveness determination in 

Resolution 10–48, finding that 

California’s 2010 LSI Fleet Amendments 

do not undermine the Board’s previous 

determination that the California 

emission standards, other emission 

related requirements, and associated 

enforcement procedures are, in the 

aggregate, at least as protective of public 

health and welfare than applicable 

federal standards.29

EPA did not receive any comments 

challenging California’s determination 

that its 2010 LSI Fleet Amendments do 

not undermine California’s prior 

protectiveness determination. Therefore, 

based on the record before us, EPA finds 

no evidence in the record that 

demonstrates California was arbitrary 

and capricious in its determination that 

its 2010 LSI Fleet Amendments do not 

undermine California’s prior 

protectiveness determination. 

B. Need for California Standards To 

Meet Compelling and Extraordinary 

Conditions 

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

instructs that EPA cannot grant a full 

authorization if the agency finds that 

California ‘‘does not need such 

California standards to meet compelling 

and extraordinary conditions.’’ This 

criterion restricts EPA’s inquiry to 

whether California needs its own mobile 

source pollution program to meet 

compelling and extraordinary 

conditions, and not whether any given 

standards are necessary to meet such 

conditions.30 In its Resolution 08–42, 

CARB affirmed its longstanding position 

that California continues to need its 

own nonroad engine program to meet its 

serious air pollution problems. 

Likewise, EPA has consistently 

recognized that California continues to 

have the same ‘‘geographical and 

climatic conditions that, when 

combined with the large numbers and 

high concentrations of automobiles, 

create serious pollution problems.’’31

Furthermore, no commenter has 

presented any argument or evidence to 

suggest that California no longer needs 

a separate nonroad engine emissions 

program to address compelling and 

extraordinary conditions in California. 

Therefore, EPA has determined that we 

cannot deny California an authorization 

for its 2008 LSI Amendments under 

section 209(e)(2)(A)(ii). EPA’s withinthe-scope determinations, applicable in 

this instance to CARB’s request for its 

2010 LSI Fleet Amendments, does not 

require an EPA analysis under section 

209(e)(2)(A)(ii). 

C. Consistency With Section 209 of the 

Clean Air Act 

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 section 209. As 

described above, EPA has historically 

evaluated this criterion for consistency 

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

209(b)(1)(C). Similarly, EPA’s analysis 

for within-the-scope determinations 

includes an assessment of whether the 

amendments are consistent with section 

209. 

1. Consistency With Section 209(a) 

To be consistent with section 209(a) 

of the Clean Air Act, California’s 2008 

LSI Amendments and 2010 LSI Fleet 

Amendments must not apply to new 

motor vehicles or new motor vehicle 

engines. California’s LSI regulations 

expressly apply only to off-road vehicles 

and do not apply to engines used in 

motor vehicles as defined by section 

216(2) of the Clean Air Act.32 No 

commenter presented otherwise. 

Therefore, EPA cannot deny California’s 

request on the basis that California’s 

2008 LSI Amendments and 2010 LSI 

Fleet Amendments are not consistent 

with section 209(a). 

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

To be consistent with section 

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

California’s 2008 LSI Amendments and 

2010 LSI Fleet Amendments must not 

affect new farming or construction 

vehicles or engines that are below 175 

horsepower, or new locomotives or their 

engines. CARB notes that its LSI 

regulations do not affect such 

permanently preempted vehicles or 

engines.33 Therefore, EPA cannot deny 

California’s request on the basis that 

California’s LSI amendments are not 

consistent with section 209(e)(1). 

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

The requirement that California’s 

standards be consistent with section 

209(b)(1)(C) of the Clean Air Act 

effectively requires consistency with 

section 202(a) of the Act. California 

standards are inconsistent with section 

202(a) of the Act if there is inadequate 

lead-time to permit the development of 

technology necessary to meet those 

requirements, giving appropriate 

consideration to the cost of compliance 

within that timeframe. California’s 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if federal and California test 

procedures conflicted. The scope of 

EPA’s review of whether California’s 

action is consistent with section 202(a) 

is narrow. The determination is limited 

to whether those opposed to the 

authorization or waiver have met their 

burden of establishing that California’s 

standards are technologically infeasible, 

or that California’s test procedures 

impose requirements inconsistent with 

the federal test procedures.34

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices 76473 

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

(1977). 

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

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

44213 (October 7, 1976). 

37 41 FR 44209 (October 7, 1976). 

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

(1977). 

39CARB, Request for Authorization at 17–21, 23. 

40See, e.g., 43 FR 32182 (July 25, 1978). 

41 79 FR 29623 (May 23, 2006). See also CARB, 

Request for Authorization at 21. 

42CARB, Request for Authorization at 23. 

a. Technological Feasibility 

Congress has stated that the 

consistency requirement of section 

202(a) relates to technological 

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

part, that any regulation promulgated 

under its authority ‘‘shall take effect 

after such period as the Administrator 

finds necessary to permit the 

development and application of the 

requisite technology, giving appropriate 

consideration to the cost of compliance 

within such period.’’ Section 202(a) 

thus requires the Administrator to first 

determine whether adequate technology 

already exists; or if it does not, whether 

there is adequate time to develop and 

apply the technology before the 

standards go into effect. The latter 

scenario also requires the Administrator 

to decide whether the cost of developing 

and applying the technology within that 

time is feasible. Previous EPA waivers 

are in accord with this position.36 For 

example, a previous EPA waiver 

decision considered California’s 

standards and enforcement procedures 

to be consistent with section 202(a) 

because adequate technology existed as 

well as adequate lead-time to implement 

that technology.37 Subsequently, 

Congress has stated that, generally, 

EPA’s construction of the waiver 

provision has been consistent with 

congressional intent.38

CARB presents that the technology 

required to comply with its LSI 

regulations is feasible, and that it has 

provided sufficient lead-time, giving 

consideration to the cost of 

compliance.39

EPA did not receive any comments 

suggesting that CARB’s standards and 

test procedures are technologically 

infeasible. Consequently, based on the 

record, EPA cannot deny California’s 

full authorization (for the 2008 LSI 

Amendments) based on technological 

infeasibility. Also, EPA cannot deny 

California’s within-the-scope request for 

the 2010 LSI Fleet Amendments based 

on technological infeasibility. 

b. Consistency of Certification 

Procedures 

California’s standards and 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if the California test procedures 

were to impose certification 

requirements inconsistent with the 

federal certification requirements. Such 

inconsistency means that manufacturers 

would be unable to meet both the 

California and federal testing 

requirements using the same test vehicle 

or engine.40 CARB presents that there is 

no issue regarding test procedure 

inconsistency for new LSI engines as 

California’s test procedures were not 

modified since EPA’s prior waiver.41

CARB also presents that its 2010 LSI 

Fleet Amendments do not include any 

test procedures and thus do not create 

an inconsistency issue. 

EPA received no comments suggesting 

that CARB’s LSI regulations pose any 

test procedure consistency problem. 

Therefore, based on the record, EPA 

cannot find that CARB’s testing 

procedures are inconsistent with section 

202(a). Consequently, EPA cannot deny 

CARB’s request based on the criterion of 

consistency with section 209. 

4. New Issues 

In the context of the 2010 LSI Fleet 

Amendments, CARB states that it is not 

aware of any new issues affecting the 

previously granted authorization for 

CARB’s LSI Fleet regulations. ‘‘The 

Amendments do not create new, more 

stringent emission standards or 

requirements, nor force any change in 

technology to warrant revisiting 

conclusions in granting the existing 

authorization.’’42 EPA received no 

comment on this issue. We therefore do 

not find any new issues raised by the 

2010 LSI Fleet Amendments. 

E. Authorization Determinations for 

California’s LSI Amendments 

After a review of the information 

submitted by CARB, EPA finds no basis 

for denying CARB’s full authorization 

request for the 2008 LSI Fleet 

Amendments and EPA finds no basis for 

denying CARB’s request that EPA 

confirm the 2010 LSI Fleet Amendments 

are within the scope of a prior EPA full 

authorization. For these reasons, EPA 

finds that a full authorization for 

California’s 2008 LSI Amendments 

should be granted and a within-thescope determination should be granted 

for California’s 2010 LSI Fleet 

Amendments. 

III. Decision 

The Administrator has delegated the 

authority to grant California section 

209(e) authorizations to the Assistant 

Administrator for Air and Radiation. 

After evaluating California’s LSI 

amendments, CARB’s submissions, and 

the lack of any comment or adverse 

comment, EPA is granting a full 

authorization to California for its 2008 

LSI Amendments and a within-thescope determination for its 2010 LSI 

Fleet Amendments. 

This decision will affect persons in 

California and those manufacturers and/ 

or owners/operators nationwide who 

must comply with California’s 

requirements. In addition, because other 

states may adopt California’s standards 

for which a section 209(e)(2)(A) 

authorization has been granted if certain 

criteria are met, this decision would 

also affect those states and those 

persons in such states. See CAA section 

209(e)(2)(B). For these reasons, EPA 

determines and finds that this is a final 

action of national applicability, and also 

a final action of nationwide scope or 

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

of the Act. Pursuant to section 307(b)(1) 

of the Act, judicial review of this final 

action may be sought only in the United 

States Court of Appeals for the District 

of Columbia Circuit. Petitions for review 

must be filed by February 8, 2016. 

Judicial review of this final action may 

not be obtained in subsequent 

enforcement proceedings, pursuant to 

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

IV. Statutory and Executive Order 

Reviews 

As with past authorization and waiver 

decisions, this action is not a rule as 

defined by Executive Order 12866. 

Therefore, it is exempt from review by 

the Office of Management and Budget as 

required for rules and regulations by 

Executive Order 12866. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601(2). Therefore, EPA has 

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

Further, the Congressional Review 

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

the Small Business Regulatory 

Enforcement Fairness Act of 1996, does 

not apply because this action is not a 

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

Dated: December 1, 2015. 

Janet G. McCabe, 

Acting Assistant Administrator, Office of Air 

and Radiation. 

[FR Doc. 2015–31049 Filed 12–8–15; 8:45 am] 

BILLING CODE 6560–50–P 

mstockstill on DSK4VPTVN1PROD with NOTICES