Matthew Rodriquez Secret aryfor EnvironmentalProt ection

September 15, 2014

Ms. Gina McCarthy Administrator 

# Air Resources Board Mary D. Nichols, Chairman

1001 I Street• P.O

. Box 2815 Sacramento, California 95812 • www
.arb.ca
.gov

United States Environmental Protection Agency HeadquartersAriel Rios Building 1200 Pennsylvania Avenue, N.W

. Mail Code 1101A Washington, D

.C

.20460 Edmund G. BrownJr

. Governor

RE: REQUEST THATTHE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY CONFIRM THAT CERTAIN REQUIREMENTS ARE WITHIN THE SCOPE OF PREVIOUSLY GRANTEDAUTHORIZATION UNDERCLEAN AIR ACT SECTION 209(E)(2); AMENDMENTSTOTHE PORTABLE DIESELFUELED ENGINES AIR TOXICS CONTROL MEASURE DearAdministrator McCarthy:
In 2007, 2009, and 2010, the State ofCalifornia Air Resources Board (GARB) approved amendmentsto California's airtoxic control measurefor portable diesel-fueled engines rated 50 brake horsepower and greater

. As discussed in more detail in the authorization Support Document,these amendments addressed issuesthat developed after GARB first considered the regulation. I am writing to request thatyou confirm these amendmentsfall within the scope ofthe pr

eviously granted authorization

. I am enclosing an Authorization Support Document, which include a description ofthe adopted amendments and ouranalysis and rationale for grantingthe requested action. Ifyou need additional technical information on this item, please contact Mr. Ron Haste, Manager, Mobile Source Control Division, Mobile Source Regulatory Development

T he energ y challenge f aci ng California isreal

. EveryCali fornian needs to take immed i ate acti on t o reduce ener gyconsumpt ion. Fora listofsimple waysyou can reduce demandandcutyourenergycosts, see ourwebsite: http:// www.arb.ca

.gov
. California Environmental ProtectionAgency
Print ed on RecycledPaperMs. Gina McCarthy, Administrator September 15, 2014 Page 2
Branch, Off-Road Control Section, at (626) 575-6676 orrhaste@arb

.ca.gov
. You may address legal questionsto Mr. GeorgeT

. Poppic, Jr., SeniorAttorney, at (916) 322- 3940 orgpoppic@arb.ca

.gov
. Thankyou foryourconsideration. Sincerely,

# ~U/4 Richard W. Corey Executive Officer Enclosures

cc: (continuedon nextpage) David Dickinson (w/ encls.) Attorney/ Advisor United States Environmental Protection Agency Office ofTransportation and AirQuality Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Mail Code 6405J Washington, DistrictofColumbia 20460 JanetCohen (w/ encls.) Associate Director, Compliance Division United States Environmental Protection Agency Office ofTransportation and AirQuality 2000Traverwood Ann Arbor, Michigan 48105 Annette Hebert, Chief Mobile Source Control Division (w/o encls

.) Ron Haste, Manager(w/o encls.) ARB Emission Research and Regulatory Development Branch Off-Road Control Section, Mobile Source Control Division George Poppic, SeniorAttorney (w/ encls.) ARB Legal OfficeMs. Gina McCarthy, Administrator September 15,2014 Page 3

Michael Terris, Assistant Chief Counsel (w/o encls.) 

### ARB Legal Office AlexWang, SeniorAttorney (w/o encls.) 

### ARB Legal OfficeREQUEST FOR AUTHORIZATION ACTION PURSUANTTO CLEAN AIRACT SECTION 209(e) FOR 2007, 2009, and 2010 AMENDMENTS TO CALIFORNIA'S AIRBORNE TOXIC CONTROL MEASURE FOR PORTABLE DIESEL ENGINES 50 HORSEPOWER AND GREATER September 15, 2014



### I. INTRODUCTION Pursuantto Clean AirAct (CAA) section 209(e)(2), the State ofCalifornia Air Resources Board (CARB or the Board) is requesting thatthe Administrator ofthe United States Environmental Protection Agency (EPA) take the section 209(e) authorization actions described belowfor GARB's 2007, 2009, and 2010 amendments to California's airborne toxic control measure for in-use portable diesel-fueled engines 50 brake horsepower (bhp) and greater (Portable Engine ATCM orATCM). The Board approved for adoption the initial Portable Engine ATCM on February 26, 2004 to reduce the emissions of diesel particulate matter (PM) from in-use diesel-fueled portable engines. The ATCM became operative understate law on March 1.1, 2005, the authorization request was submitted 'on December 5, 2006, and EPA granted California an authorization on November29, 2012. 1 :. The Portable Engine ATCM is an element ofGARB's "Risk Reduction Plan to Reduce PM Emissionsfrom Diesel-Fueled Engines and Vehicles" and requires that in-use off-road, portable diesel-fueled engines 50 bhp and greater, including engines that are registered with GARB's Portable Equipment Registration Program (PERP)2 or permitted by or registered with local air pollution control districts, be certified to applicable CARB or EPA off-road engine3 emission standards by January 1, 2010, unless those engines were previously designated as exclusively used in emergency applications or designated as low-use engines.

1 77 Fed. Reg. 72846 (December 6, 2012). 2 Priorto the Portable Engine ATCM regulation, GARB initially adopted the PERP regulation in 1997, and amendeJd it in 1998, 2005, 2006, and 2007. Cal. Code Regs., tit. 13 § 2450 etseq. EPA granted GARB a full authorization forthe PERP regulation, as last amended ih 2007, and further confirmed that certain portions ofthe PERP werewithin the scope of prior authorizations. 77 Fed. Reg. 72581 (December6, 2012). With the initial authorization ofthe separate Portable ATCM, published on the same date December6, 2012, it is the ATCM that establishes the emission standards and emission-related requirements for all portable engines covered by the PERP and local district permitting programs. Effectively, with statewide emission requirements setforth in the Portable Engine ATCM, PERP has become a purely voluntary program that owners and operators may electto use if it offers administrative advantages over registering or permitting their portable equipment and engines in more thar1 one local district. Given these circumstances, GARB believes that the PERP regulation no longer requires formal authorization action. Ifthe Administratorfeels otherwise, GARB will submitthe PERP amendments for authorization action. 3 In this document, the term "off-road" is used interchangeably with the federal term**"non-ro:~d."** 

### 1As authorized, the initially adopted Portable Engine ATCM requires engines not registered or permitted before January2006to meetthe most stringent newengine emissions standards then applicable in orderto be registered or permitted, and further requires that fleets of in-use diesel-fueled portable engines meet diesel PM emission fleet average standards that become increasingly more stringent in 2013, 2017, and 2020. Owners oroperators ofsuch fleets ofengines are provided several compliance options to comply with the fleet emission standards, including purchasing new equipmentwith cleaner engines, repowering existing equipmentwith cleaner engines, using verified add-on control devices on existing equipment and engines, switching to alternative diesel fuels or alternative fuels, or electrifying some orall ofthe fleet and receiving emission credits. To address specific difficulties faced by stakeholders in complying with the initially authorized Portable Enpine ATCM, the Board adopted amendments to the Portable Engine ATCM in 2006, 2007, 2009, and 2010 to provide businesses greater compliance flexibility in their purchasing decisions. ·sections II, Ill, and IVofthis documentdescribe the provisions ofthe 2007, 2009, and 2010 amendments, respectively, that require authorization actions. Section V describes the criteria and principles for granting the requested authorization actions and demonstrates that the amendments meet those criteria. GARB requests that the Administrator confirm thatthe 2007, 2009, and 2010 amendments fall within the scope ofthe authorization granted forthe initial Portable Engine ATCM. 5


### II. SUMMARY OF 2007 AMENDMENTS TO THE PORTABLE ENGINE ATCM 

### A. Background The original Portable Engine ATCM required in-use portable diesel-fueled engines 50 bhp and greater (portable engines) in California to be certified to California orfederal emission standardsfor newoff-road engines by January 1, 2010, subject to specified exceptions, and further required, beginning January 1, 2006, that portable engines initially registering with GARB orapplying for permits from local air districts be certified to the most stringent ofthe federal or California emission standardsfor off-road engines. In September2006, the Board received public testimony concerning the inability of owners and operators of portable diesel engines to permit or register older engines based on the provisions ofthe Portable Engine ATCM that required portable engines initially registering with GARB orapplying for local air districts permits on and after

4 The 2006 amendments were emergency amendments adopted pursuantto the California Administrative Procedures Act, Government Code section 11446.1 and are notcovered by this request. The emergency amendments were subsequently superseded by the Board's formal adoption ofthe emergency amendments in 2007; these 2007 amendments are covered by this request. 5 77 Fed. Reg. 72846 (December 6, 2012).


### 2January 1, 2006 to be certified to the most stringent ofthe federal or California emission standards for off-road engines. The Board directed staffto consider options a11d to report back to the Board. CARS staff, in consultation with affected industry and the air districts, proposed emergency amendmentsto the Portable Engine ATCM. The Board approved the emergency amendments at its December 7, 2006 public hearing, and the Office ofAdministrative Law (OAL) approved the emergency amendments on December27, 2006. These emergency amendments were filed with the Secretary of State and were effective for a period notto exceed 120 days. On July 31, 2007, the Board adopted amendments to the Portable Engine ATCM that finalized the provisional amendments effected by the 2006 emergency amendments (2007 Amendments).6 The 2007 Amendments were required to ensure that the emergency amendments would remain in effect pastthe 120 day period. The 2007 Amendments became effective September 12, 2007. To address the inability ofowners and operators ofportable diesel engines to permit or register older engines on and afterJanuary 1, 2006 iftheir portable engines were not certified to the moststringentfederal or California emission standards for newoff-road engines, the 2007 Amendments revised the initially adopted ATCM to provide the following compliance flexibility. B. Local District Discretion to Permit Uncertified (Tier 0) Engines The 2007 Amendments allowed local air districts to permit or register uncertified portable engines at their discretion, provided such engines were operated in California at anytime between March 1, 2004 and October 1, 2006,7 orwere either designated as exclusively used in emergency applications or were low-use engines. 8


### C. Permitting or Registration ofTier 1 and Tier 2 Engines Not Meeting Current Emission Standards The 2007Amendments also revised the ATCM to allow Tier 1and Tier 2 engines that did not meet currently applicable off-road emission standards (i.e., Tier 3 or Tier4) standards to be permitted or registered by local air district programs or registered in PERP until December 31, 2009, provided such engines were operated in California at anytime between March 1, 2004 and October 1, 2006. 9

6 Resolutions 07-09 and 07-10, and Executive Order R-07-013 (See attached Tabs 4, 5 and 7, respectively) 7 Cal. Code of Regs., tit. 17 § 93116.3(b)(6). All subsequent citations are to Cal. Code of Regs., tit. 17 unless indicated otherwise. 8 Owners and operators of portable engines used exclusively in emergency applications ordesignated as low-use engines are allowed to operate uncertified engines but by January 1, 2020 must have the engines: 1) replaced with portable engines certified to Tier4 off-road engine emission standards, 2) equipped with a Level-3 PM control technology, or 3) or equipped with a combination ofverified control technologies that have been verified togetherto achieve at least 85% reduction in diesel PM emissions by January 1, 2020. § 93116.3(b)(2)(B). (See Tab 1). 9 § 93116.3(b)(5). (See Tab 1)


### 3D. Permitting or Registration of Engines Subjectto Emissions Tier Changes The 2007Amendments also allowed previous tier engines to be permitted o.r registered for a period ofsix months after a more stringent emissions tier becomes effective, even ifthe previous tierengines were not operated in California between March 1; 2004 and October 1, 2006. This provision only applies to engines that were subjectto an emissions tier standard change in a given year, and allows qualifying engines to be permitted or registered by local air district programs or registered in PERP ifthey met the then-applicable emission standards forthe engine atthetime ofapplication and if the application for permitting or registration wassubmitted within six months ofthe date that the new emission standards took effect. 10
E. Compliance Flexibility Provisions The 2007 Amendments additionally established a provision that provided compliance flexibility to owners and operators during circumstances when new emissionstiers become effective and engine manufacturers, distributors, or dealers are unableto supply sufficient numbers of compliant engines. 11 Underthe initially adopted ATCM**r~gulation,** in such situations, owners and operators would have been precluded from permitting, registering, oroperating equipment powered by prior-Tier engines, because the Portable Engine ATCM required those engines to be certified to the moststringent federal or California emission standards for off-road engines. The adopted amendment provides compliance flexibility by allowing, with Executive Officer approval, equipment dealers and distributors to sell, and owners to purchase and install, engines that meet previous tier emissions standards. 12
Ill. SUMMARY OF 2009 AMENDMENTS TO THE PORTABLE ENGINE ATCM 

### k Background The Portable Engine ATCM, as initially adopted, applied to portable engines mounted on two engine cranes and to the engines on two-engine street sweepers used to power auxiliary, nonvehicular propulsion functions. In April of2008, GARB adopted the

10 § 93116.3(b)(7). (See tab 1) 11 § 93116.3.1. (See tab 1) · 12 Executive Officer approval is contingent upon verifiable information being submitted by ari engine manufacturer, distributor, ordealer, that engines meeting the current emission standards are not available, or are not available in sufficient numbers or in a sufficient range ofmakes, models., and horsepower ratings. An almost identical provision was authorized as part ofthe flexibility provisions ofthe California Off-Road Compression-Ignition (CI) Engines and Equipment regulation, CaL Cod<:) Regs., tit 13 §2420 et seq.,which provide equipment manufacturersflexibility to install limited numbers of engines not certified.to the most current emission standards. GARB adopted these flexibility provisions in rulemaking actions conducted in 2000 and 2004 which generally harmonized California's emission standards and test procedures for off-road Cl engines with the federal Tier 1-3 and Tier4 non-road Cl engine emission standards and test procedures forwhich EPA granted California authorization in 2010. 75 Fed. Reg. 8056 (February 23, 2010).

4In-Use Diesel Fueled Fleets (In-Use Off-Road) regulation13 that established fleet standards for propulsion engines of in-use off-road vehicles, including two-engine cranes. 14 CARB subsequently adopted a regulation to reduce emissions ofdiesel particulate matter (diesel PM), oxides of nitrogen (NOx), and greenhouse gases from inuse diesel trucks and buses that operate in California (Regulation to Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and Other Criteria Pollutants, and Greenhouse Gases from In-Use Heavy-Duty Diesel-Fueled Vehicles (Truck and Bus regulation)),15 which established requirements for in-state and out-of-state motor carriers among others. As part ofthat rulemaking action, CARB amended its existing regulations, including the Portable EngineATCM, to ensure thatthe regulations did not impose overlapping requirements for vehicles, including two-engine cranes and privately owned two-engine street sweepers. CARB amended the In-Use Off-Road regulation to applyto both engines oftwo-engine cranes, enacted provisions in the Truck and Bus regulation to applyto both engines ofprivately owned two-engine street sweepers, and concurrently amended the Portable Engine ATCM as it applied to such vehicles as discussed below. CARB formally adopted the 2009 Amendments to the Portable Engine ATCM on October 19, 2009 (Resolution 08-43 (Tab 12) and Executive Order R-09-010 (Tab 14)). 

### B. Exempting Secondary Engines on Two- Engine Cranes The 2009 Amendments exempted secondary engines on two engine cranes from the Portable Engine ATCM and instead subjected these engines to the provisions of GARB's ln-l)se Off-Road regulation. 16 The 2009 Amendments also exempted lattice boom cranes from the Portable Engine ATCM and expressly included lattice boom cranes in the definition oftwo-engine cranes. 17 · 

### C. Exempting Secondary Engines on Privately Owned Two-Engine Sweepers Private two-engine sweepers also usetwo engines; a propulsion engine to propel the sweeper and a secondary engineto power the sweeping equipment. As with twoengine cranes, the secondary engines on two-engine sweepers were previously regulated bythe Portable Engine ATCM.

13 Cal. Code Regs., tit. 13 § 2449 etseq. EPA granted authorization for the In-Use Off-Road regulation in 2013. 78 Fed. Reg. 58090 (September 20, 2013) 14 Two-engine cranes are mobile diesel-powered vehicles with a hoisting mechanism (i.e., the crane) mounted on a specially constructed truck chassis orcarrierthat utilize two separate engines; one engine is used to propel the vehicle, and a secondary engine is used to powerthe crane to lift and move materials and objects. 15 Cal. Code Regs., tit. 13 § 2025 etseq. 16 § 93116.1 (b)(8), 93'11.6.2(a)(6). (See tab 13). The In-Use Off-Road Vehicle regulation is setforth in Cal. Code Regs., tit. 13 § 2449 etseq. 17 Deletion offormer§ 93116.3(b)(4) and (c)(3)(D); lattice boom cranes are a subcategory oftwo engine cranes. (See Tab 20A)


### 5The 2009Amendments exempted the secondary engines on privately owned twoengine sweepers from the Portable Engine ATCM and instead subject such secondary· enginesto the provisions ofthe Truck and Bus regulation. 18


### IV. SUMMARY OF 2010 AMENDMENTS TO THE PORTABLE ENGINE ATCM
A. Background The Board formally considered the 2010Amendments to the Portable EngineATCM at its January 28, 2010 meeting, 19 and California's Office ofAdministrative Law (OAL) approved the 2010 Amendments on October 19, 2010 and January 20, 2011. The 2010 Amendments became fully operative understate law on February 19, 2011.
The 2010 Amendments primarily established provisions for additional compliance flexibility for owners and operators ofportable engines as described in greaterdetail below. 

### B. Operation and Permitting of Non-Certified Engines
As discussed above, the Portable EngineATCM, as initially adopted, required in-use portable diesel-fueled engines in California to be certified to California or federal emission standardsfor newoff-road engines by January 1, 2010, unless those engines were designated as exclusively used in emergency applications or low-use engines.
The 2010Amendments allow any company, public agency, or military base to operate a limited numberof non-certified enginesfor up to one year afterthe previously specified compliance date ofJanuary 1, 2010. Owners may electto operate either one engine (of any size) or up to five engines that collectively do not exceed 500 bhp, until December 31,2010. Only engines registered in PERP or permitted or registered by a district on or before December 31, 2009 are eligiblefor this extension.20


### C. Registration or Permitting of Engines Not Meeting Most Stringent Standards The initial ATCM generally required portable engines that were not permitted or registered prior to January 1, 2006 to meetthe most stringent California orfederal offroad engine emission standards. The 2010 Amendments extend the applicability ofthis requirement to portable engines not permitted or registered priorto January 1, 2010,

18 § 93116.1(b)(9), 93116.2(a)(37). (See Tab 20A) 19 The

**r~lemaking** action associated with the 2010 Amendments was bifurcated. The 2010 Amendments that provided a compliance extension for non-certified engines (Section 8.1), subjected portable engines on water-well drilling rigs to CAR8's In-Use Off-Road Vehicle Regulation (Section 8.3), and allowed the use ofcertified on-highway engines in portable equipment (Section 8.2) were adopted by CAR8 on August27, 2010 (SeeTab 20A) and approved by OAL on October 19, 2010. The remaining provisions of the 2010 Amendments were adopted by CAR8 on December 8, 2010 (See Tab 208) and approved by OAL on January 20, 2011. 20 § 93116.3(b)(1)(C) (See Tab20A)


### 6and allow local air districtsto register or permit portable engines that do not meetthe most stringent California orfederal off-road engine emission standards until ,January 1, 2017, provided such engines are certified to a California orfederal off-road emission standard. Tier 1 and Tier 2 engines must have been operated in California between January 1, 2008 and December 31, 2010 to qualifyfor this provision.21

. 

### D. Allow Use of Diesel Engines Certified to On-Highway Emission Standards The 2010 Amendments allow in-use portable diesel-fueled engines 50 bhp and greater that are certified to California orfederal emission standardsfor newon-road enginesto be permitted or registered by a local air district or registered in PERP. These certified on-highway engines will become part ofthe portable enginefleet that is subject to the· Portable Engine ATCM's diesel PM emission fleet average standards. 22 ·· 

### E. Water-Well Drilling Rigs The auxiliary diesel-fueled deckengines on waterwell drilling rigs were previously subjectto the authorized provisions ofthe Portable Engine ATCM. To address concerns raised bythe California GroundwaterAssociation regarding the replacement of older deck engines on existing two-engine waterwell drilling rigs, the 2010 Amendments now exempt auxiliary diesel-fueled deck engines used exclusively on water well drilling rigs from the Portable Engine ATCM and instead subject such engines to CARS's In-Use Off-Road Regulation 23 · 

### F. Dedicated Snow Removal Vehicles The 2010 Amendments exempt portable engines used exclusively on dedicated snow removal vehicles from the requirements ofthe Portable Engine ATCM because ofthe high costs of replacing such engines and the negligible emissions impactfrom such engines. 24

. 

### G. Eligibility ofTier 1and Tier2 Engines for Permitting or Registration by a Local Air District As discussed above in Section II.C, the 2007 Amendments to the Portable Engine ATCM allowed Tier 1and Tier 2 engines thatwere operated in California between March 1, 2004 and October .1, 2006 to be registered and permitted by local air districts or registered in PERP until December 31, 2009. The 2010 Amendments delete that provision because its applicability expired on January 1, 2010.25

..

21 § 93116.3(b)(2)(E). (See tab 208) 22 § 93116.2(a)(5), 93116.3(b)(2)(A). (See Tab 208) 23 § 93116.1 (b)(10). (See Tab 20A). EPA issued California an authorization forthe initialln·-Use OffRoad Diesel Vet1icle regulation and forthe 2009 and 2011 Amendments to the regulation in 2013. 78 Fed. Reg. 58090 (Sept. 20, 2013). 24 § 93116.1 (b)(11 ). (See Tab 208) 25 Deletion offormer§ 93116.3(b)(4). (See Tab 208).



### 7

### H. ·Non-Certified Engines Operated Exclusively in Emergency Applications or Designated to be Low-Use Engines The Portable Engine ATCM previously required non-certified portable engines operated exclusively in emergency applications or designated as low-use engines to be replaced with Tier4 engines within two years ofthe availability ofTier4 engines, which would be either 2016 or 2017 atthe latest, depending on engine size. The 2010 Amendments now require the owners ofsuch engines to commit by December 31, 2011, to remove the non-certified engines from service or replace the engines with a current tier engine by January 1, 2017.26


### I. Removing Eligibility of Non-Certified Engines for Initial

**P~rmits** 

### or Registration by a Local District The 2007 Amendments to the Portable Engine ATCM added a provision that allowed non-certified engines that had operated in California between March 1, 2004 and October 1, 2006 to be registered or permitted by local air districts (Section II.B). This provision was originally intended to only apply until December31, 2009, but due to an oversight, the 2007 Amendments did not specify the expiration ofthat provision in the regulatory text. The 2010 Amendments corrected this oversight bydeleting this provision.27


### J. Additional Amendments28


### 1. Specifying an emission factor for Tier 1engines less than 175 bhp to calculate compliance with the fleet emission standard. As stated above in Section I, the Portable Engine ATCM requires fleets of

**in~use** dieselfueled portable engines to meet diesel PM emission fleet average standards that become increasingly stringent in 2013, 2017, and 2020. The Portable Engine ATCM previously specified that the PM emission factors for portable diesel-fueled engines were based on emission factors contained in the Executive Orders certifying new offroad diesel engines for sale and use in California. However, because Tier 1engines less than 175 bhp do not have a PM emission standard, the Executive Ordersforthese engines do not specify a PM emission factor. The 2010 Amendments correct this oversight by specifying thatfor such engines CARB will use the same emission factor

26 §93116.3(b)(1)(8). (See Tab 208)

. 27 §93116.3(b)(5). (SeeTab 208). The 2010 Amendments deleted this provision in lieu ofspecifying the December 31, 2009 expiration date in light ofthe fact that this expiration date had already passed when

· the 2010 Amendments were approved.

28 These amendments solely clarify provisions ofthe existing Portable Engine ATCM and therefore do not require authorization. The amendments are described here to provide an overview of GARB's rulemaking action.


### 8used forTier 1engines in the In-Use Off-Road Vehicle Regulation, but will not adjust such emission factors by applying deterioration factors. 29

..· 

### 2. Specifying emission factors for certified engines that do not have a family name indicated on the engine label. Certified engines that do not have afamily name indicated on the engine label are engines that are built to flexibility provisions for equipment and vehicle manufacturers and post-manufacture marinizers pursuant to 40 CFR Part 89 or title 13 ofthe California Code of Regulations. The 2010 amendments specify thatthe PM emission factors for such engines are the applicable PM emission standards forthe tier level to which the engines are certified.30


### 3. Exempting certified engines that losttheir permit exemption due a change in local air district rules. The 2010 Amendments provide that certified engines that lost their permit exemption due to changes in local air district rules are exemptfrom the general requirement to be certified to applicable GARB or EPAoff-road engine emission standards by January 1, 2010. 31

. 

### V. AUTHORIZATION CRITERIA AND ANALYSIS A. Criteria for Granting New Authorizations Under CAA Section 209(e) or Confirming that Amendments are Within the Scope of Previous Authorizations Section 209(e)(2) ofthe CAAsets forth the protocol for the Administrator to grant California authorization to adopt and enforce standards and other requirements relating to controlling emissions from new and in-use off-road enginesthat are not conclusively preempted by section 209(e)(1)- new engines less than 175 hp used in farm and construction equipment and vehicles and new engines used in new locomotives and locomotive engines. Section 209(e)(2) directs the Administratorto grant California an authorization forstandards and requirements for all other off-road engines ifCalifornia determines that the State's standards will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards, unless she finds that: (1) the protectiveness finding ofthe state is arbitrary and capricious; (2) California does not need separate state standards to meet compelling and extraordinary conditions; or (3)

29 §93116.3(d)(1)(8).2. (See Tab 208). 30 §93116.3(d)(1)(8).3. (See Tab 208). 31 §93116.3(b)(2)(D). (See tab 208).



### 9California's standards and accompanying enforcement procedures are not consistent with CAA section 209. In its 209(e) Final Rule, EPA interpreted "not consistent with section 209" to mean that those challenging a California authorization request rnust showthatthe State's standards and accompanying enforcement provisions are not consistent with sections 209(a),**209(b)~1)(C)-** thatthe standards are not consistent with CAA section 202(a)- and 209(e)(1). 2
In considering whetherto grant authorizations for accompanying enforcement procedures tied to standardsforwhich an authorization has already been granted, Administrators have long held that they will only address questions as to (1) whetherthe enforcement procedures are so lax that they threaten the validity ofCalifornia's determination that its standards are as protective ofpublic health and welfare as applicable federal standards and, (2) whetherthe enforcement procedures are consistentwith section 202(a). 33 The Administrator has applied a similar analysis in confirming that amendments to a GARB standard or regulation arewithin the scope ofa previously granted authorization: EPA can make such a confirmation if certain conditions are present. Specifically, if California acts to amend a previously authorized standard or accompanying enforcement procedure, the amendments may be considered within the scope of a previously granted authorization provided that it does not undermine California's determination that its standards in the aggregate are as protective of public health and welfare asapplicable Federal standards, does not affectthe consiste.ncy with section 209 ofthe Act, and raises no new issues affecting EPA's previous authorization determination. [Citation omitted.]34 · It is also well established that EPA may only considerthe aforementioned criteria set forth in section 209(e)(2), that EPA shall give substantial deference to California's policy judgments, and that the burden is on those who oppose the granting ofthe authorization to show why it should not be granted. 35


### B. The 

### 2007, 2009, and.

### 2010 Amendments Fall Withinthe Scop.e ofthe Previously GrantedAuthorization · · GARB requests that the Administrator confirm thatthe elements ofthe 2007 Amendments described in Sections II.B-E, the elements ofthe 2009 Amendments described in Sections III.B and C, and the elements ofthe 2010 Amendments described

32 59 Fed. Reg. :36969, 36983 (July 20, 1994). 33 Motorand Equipment Manufacturers Association v. EPA (MEMA) (D.C. Cir. 1979) 627 F.2d 1095, 1111, 1'113. 34 65 Fe.d. Reg. 69767, 69768 (November20, 2000). · 35 MotorandEquipment Manufacturers Association v. EPA (MEMA) supra 627 F.2d at 1121; 40 Fed. Reg. 23102, 23103-23104 (May 28, 1975).

10in Sections IV.B and C, and E-1 are within the scope of previously granted authorizations. Each required criteria is met. 

### 1. Protectiveness
In approving foradoption the 2007, 2009 and 2010Amendments to the Portable Engine ATCM, CARB approved Resolutions 07-9 and 07-10, 08-43, and 10-2, respectively, and determined thatthe emissions standards and other requirements related tothe control ofemissions adopted as part ofthe 2007, 2009, and 2010Amendments were, in the aggregate, at least as protective of public health and welfare as applicable federal standards. TheAdministrator has no basis to find that the Board's protectiveness determinations undermine GARB's earlier Portable EngineATCM protectiveness determination or are arbitrary orcapricious because the 2007, 2009, and 2010 Amendments are indisputably more stringentthan applicable federal requirements, given that EPA has no authority to regulate in-use off-road engines. 36


### 2. Consistencywith CAA Section 209

a. Consistentwith CAA sections 209(a) and 209(e)(1)
In granting California the authorization forthe initial Portable Engine ATCM, EPAfound that regulation was not inconsistentwith CAA section 209(a), because it did not regulate emissionsfrom new motorvehicles or new motorvehicle engines. 37 It cannot be argued thatthe 2010 Amendment allowing the use ofcertified on-road engines for compliance with the Portable Engine ATCM is inconsistentwith section 209(a). When an owner or operator uses an engine that has been certified to on-highway standards for compliance with the Portable Engine ATCM, it is incorrectto saythatthe engine is an on7road engine underthese circumstances. CAA section 216(10) defines a nonroad engine to mean "an internal combustion engine

... that is not used in a motorvehicle," and CAA section 216(2) defines motorvehicle to mean "any self-propelled vehicle designed fortransporting persons or property on a street or highway." As used in the ATCM, the portable equipment in which the on-highway certified engine is installed is not registered ordesigned for on-road operation and is, thus, not a motorvehicle as defined by the CAA

.. EPA also found thatthe initial Portable Engine ATCM was not inconsistentwith CAA section 209(e)(1) because itdid not applyto new off-road engines less than 175 hp used in farm and construction equipment and vehicles, new locomotives, orengines used in new locomotives.38 Nothing in the 2007, 2009, and 2010Amendments alters this finding as the ATCM continues to not apply to the above mentioned preempted

36 CAA section 213. 37 77 Fed. Reg. 72846, 72850 (December6, 2012). 38 Ibid.

11categories of mobile sources, and EPA therefore cannotfind that the 2007, 2009, or the 2010 Amendments are inconsistentwith CAA sections 209(a) or 209(e)(1).
b. Consistentwith CAA section 202(a)
Under CAA section 209(b)(1)(C), EPA determines ifCalifornia standards are consistent with section 202(a) ofthe CAA by considering whetherthe California regulation or amendments provide sufficient lead time to permit the developmentoftechnology needed to meetthe standards and other requirements, giving appropriate consideration to the cost ofcompliance in the timeframe provided, and ifthe California and federal test procedures aresufficiently compatible to permit manufacturers to meet both the state and federal test requirements with one testvehicle or engine.39 The reference to "cost of compliance" in CAAsection 202(a) refers to the economic costs ofemission standards and accompanying enforcement procedures and the timing ofa particular emission control regulation ratherthan to its social implications.40 As demonstrated below, each ofthe compliance options associated with these amendments is technically feasible, within the lead time provided for compliance and presents no issue of incompatibility between California and federal test procedures.
i. Technical feasibility of2007 Amendments
The 2007Amendments identified above in Sections II. B-Edo not increase the stringency ofthe authorized emission standards and related test procedures associated with the Portable Engine ATCM, but instead provide owners and operators greater compliance flexibility by: allowing certain uncertified portable engines, afterJanuary 1, 2006, to be registered or permitted by local airdistricts, allowing Tier 1 and Tier 2 engines not meeting currently applicable emission standards to be permitted or registered by local air districts or registered under PERP, allowing engines meeting emis.sions standards from a previous model yearto be sold, purchased, or installed, if current model year engines meeting current emission standards are not available or are not available in sufficient numbers or in a sufficient range of makes, models, and horsepower ratings, and allowing engines meeting emissions standards from a previous model year to be and permitted and registered within 6 months after a more stringent emissionstier becomes effective. ii. Technical feasibility of2009 Amendments
The 2009 Amendments identified above in Sections III.B and III.C also do not increase the stringency ofthe authorized emission standards and related test procedures because they only exemptthe secondary (auxiliary) engines on two engine cranes and privately owned two-engine sweepersfrom the Portable Engine ATCM.

39 See 61 Fed. Reg. 53371, 53372 (October 11, 1996); Decision Document at p. 2 (080 II Waiver Decision). 40 /d., referencing SeeS. Rep. No. 192, 89th Cong., 1st Sess. 5-8 (1965); H.R. Rep. No. 728, 90th Cong., 1st Sess. 23 (1967), U.S. Code Cong. &Admin. News 1967, p. 1938; see also 74 Fed. Reg. 3030 (January 16, 2009), Decision Document at p. 49.
12iii. Technical feasibility of2010 Amendments The 201 0Amendments identified above in Sections IV. B, C, and E-1 do not increase the stringency ofthe authorized emissions standards and related test procedures associated with the Portable Engine ATCM, but instead provide owners and operators greater compliance flexibility by: allowing limited numbers of uncertified engines to operate beyond the previously authorized compliance date ofJanuary 1, 201 0; allowing local air districts to register and permitportable engines that do not meetthe most stringent California orfederal off-road engine emission standards applicable until January 1, 2017; exempting auxiliary diesel-fueled engines used exclusively on water well drilling rigs and on dedicated snow removal vehicles from the Portable Engine ATCM; allowing engines used exclusively in emergency applications or designated as low-use engines to be replaced with non-Tier4 engines anytime priorto the availability ofan applicable Tier4 engine

### or to retire such engines no laterthan January 1, 2017; and allowing Tier 1and Tier 2 engines operated in California between January 1, 2008 and December 31, 2010 to be registered and permitted by local air districts until January 1, 2017. The amendments described above in Sections IV. 

### B, C, and E-1 are technically feasible because they provide manufacturers additional flexibility to comply with provisions that the Administrator has already determined are not inconsistentwith section 202(a).41
The 2010 Amendments identified in Section IV. Dthat allow the use of in-use portable engines certified to California orfederal newon-road emission standards are not mandatory compliance requirements, but instead establish a technically feasible compliance alternative to the Portable EngineATCM's requirement that previously limited the use of certified off-road engines in portable equipment, and accordingly do not require authorization.42
As discussed above, the Portable Engine ATCM previously required that non-certified engines operated exclusively in emergency applications ordesignated as low-use engines be replaced with Tier4 engines no laterthan two years afterthe availability of Tier

### 4 engines, which would be 2017 at the latest. The 2010 Amendments now require such enginesto be replaced with current Tierengines (at any time) or be retired by January 1, 2017. These amendments are technicallyfeasible because they do not acceleratethe previously specified replacement date, and becausethe Administrator has previously determined that California's Tier 1through Tier

### 4 off-road compression ignition engine standards are technical feasible43

.

41 77 Fed. Reg. 72846, 72850 (December 6, 2012). 42 See Motorand EquipmentMfrs. Ass'n, Inc. v. Environmental Protection Agency(MEMA /1), 627 F.2d 1128, 1132 (D.C. Cir. 1979) (a regulatory compliance option is only a mandate that can result in a denial ofa waiver ifthe regulation does notspecify anot)lertechnically feasible compliance option:) 43 On February 5, 2010, the Administrator granted California an authorization for rulemakings conducted in 2000 and 2004-2005, in which CARB adopted and amended emission standards and test procedures applicable to new off-road Cl engines. 75 Fed. Reg. 8056 (Feb. 5, 2010). These two rulemakings primarily harmonizedCalifornia and federal off-road Cl emissions standards and test procedures. The
13iii. Consistencywith federal test procedures None ofthe 2007, 2009, or the 2010 Amendments identified above in Sections II through IV present issues of incompatibility between California and federal test procedures because they do not alterthe test procedures specified for certifying federal or California portable engines,44 and to the extent that the compliance methods apply to in-use modifications ofexisting engines, they are not inconsistentwith federal test procedures because EPA does not have anycomparable in-use standards and test procedures and lacks the authority to adopt such requirements.45
3. No New Issues CARB is not aware ofany new issues affecting the previously granted authorization for the Portable Engine ATCM and therefore, to the extentthat the 2007, 2009, and 2010 Amendments modify the authorized requirements ofthe Portable Engine ATCM, they fall within the scope ofthe existing authorization. C. ·In the Alternative, the Administrator Must Grant a NewWaiver Should the Administrator determine that any element ofthe 2007, 2009, or 2010 Amendments do notfall within the scope ofthe existing authorization, CARB requests thatthe Administratorgrant such elements ofthese Amendments a new authorization under CAA section 209(e)(2). As discussed above, no issue regarding protectiveness orconsistency with CAA sections 209(a), 209(e)(1), or 209(b)(1)(C) exists, and California satisfies the compelling and extraordinary criterion as demonstrated below. California needs its own nonroad engine and vehicle program to meet serious air pollution problems unique to the State. The Administrator has previously and consistently recognized California's unique needs when granting waivers for motor vehicles undersection 209(b) and authorizations for California's nonroad regulations undersection 209(e) ofthe CAA. The relevant inquiry undersection 209(e)(2)(A)(ii) is whether California needs its own emission control program to meet compelling and extraordinary conditions, notwhether any given standard is necessaryto meetsuch conditions.46 In approving waivers under section 209(b), the Administrator has determined that:

2000 rulemaking essentially harmonized California's emission standards and test procedures with federal standards and procedures applicable to Tier 1through Tier3 off-road engines rated less than 19 kilowatts (kW), equal to orgreaterthan 19 kW but less than 130 kW, and greaterthan 130 kW. Similarly, the 2004- 2005 rulemaking essentially aligned California's emission standards and test procedures with federal standards and test procedures applicable to Tier4 off-road engines. · 44 EPA has already determined that California and federal nonroad Cl emissions standards and test p,rocedures are not inconsistent. 75 Fed. Reg. 8056, 8060 (Feb. 23, 201 0). 5 CAA section 213; EMA v. US. EPA, 88 F.3d 1075 (D.C. Cir. 1996). 46 49 Fed. Reg. 18887, 18892 (May 3, 1984).


### 14"compelling and extraordinary conditions" does not refer to levels of pollution directly, but primarily to the factors thattend to produce them: geographical and climatic conditions that, when combined with large numbers and high concentrations ofautomobiles, create serious air pollution problems.47
California

-- in particular, the South Coast and San Joaquin ValleyAir Basins

- continues to experience some ofthe worst air quality in the nation48 The unique geographical and climatic conditions, and the tremendous growth in vehiclepopulation and use that moved Congress to authorize California to establish separate vehicle standards in 1967, still exist today. As of March 2, 2006, EPA's "Green Book" listing of non-attainment areas ofthe 8-hour ozone standard identified both air basins as severe.49 Both air basins also continue to be identified as non-attainmentfor PM2.5.50 EPA affirmed GARB'sjudgment, on behalfofthe State ofCalifornia, on this matter.51
In the California Clean AirAct of 1988, the California Legislature found that: despite the significant reductions in vehicle emissions which have been achieved in recent years, continued growth in population and vehicle miles traveled throughout California havethe potential not onlyto prevent attainment ofthe state standards, but in some cases, to result in worsening ofair quality.52 · California, and particularly the South Coast and San Joaquin ValleyAir Basins, continue to experience some ofthe worst air quality in the nation and continue to be in nonattainmentwith national ambient air quality standards for PM2.5 and ozone.53 The unique geographical and climatic conditions, and the tremendous growth in the on and off-road vehicle population and usethat moved Congress to authorize California to establish separate on-road motorvehicle standards in 1967 and off-road engine standards in 1990, still exist today.54
The Administrator has repeatedly agreed with CARB that California's**continuin~** extraordinary conditions justify California's mobile source emission programs.5 Nothing in these conditions has changed to warrant a change in this determination. Accordingly, for all the aforementioned reasons, there can be no doubtofthe continuing existence of

47 /d

.. 48 See e.g. ApprovalandPromulgation ofState Implementation Plans; California

-- South Coast, 64 Fed. Reg. 1770, 1771 (January 12, 1999). 49 http://www.epa.gov/oar/oaqps/greenbk/gncs.htmi#CALIFORNIA 50/d. 51 California State Motor Vehicle Pollution Control Standards; WaiverofFederal Preemption

-- Notice of Decision, 68 Fed. Reg.19811, 19812 (April22, 2003). 52 California Health and Safety Code section 43000.5. 53 78 Fed. Reg. 2112, 2130 (January 9, 2013); 76 Fed. Reg. 40652, 40654 (July 11, 2011 ). 54 See 74 Fed. Reg. 32744, 32762-32763 (July 8, 2009); 79 Fed. Reg. 6584, 6588-590 (February 4, 2014). 55 60 Fed. Reg. 37440 (July 2, 1995) utility engine authorization Decision Document, at p. 33; 76 Fed. Reg. 77515,77518 (December 13, 2011); 79 Fed. Reg. 6584,6588-590 (February4, 2014L
15compelling and extraordinar¥ conditionsjustifying California's need for its own mobile source emissions program.5
VI. CONCLUSION Based on the foregoing, CARB respectfully requests authorization for California to enforce the Portable Engine ATCM as amended. The following tabbed documents pertaining to the ATCM covered bythis request are enclosed.
For 2006 Rulemaking Tab 1 Final Regulatory Order For 2007 Rulemaking Tab 2 Tab 3A Tab 3B Tab 4 Tab 5 Tab 6 Tab 7 Tab 8 Staff Report dated February 2, 2007 Final Statement of Reasons dated July 2007 Supplementto Final Statement of Reasons Resolution 07-9 Resolution 07-10 Final Regulation Order Executive Order R-07-013 Hearing Transcript For 2009 Rulemaking Tab 9 Tab 10 Tab 11 Tab 12 Tab 13 Tab 14 Tab 15 Staff Report dated October2008 Technical Support Document and Addendum Final Statement of Reasons Resolution 08-43 Final Regulation Order Executive Order R-09-010 Hearing Transcript For 2010 Rulemaking Tab 16 Tab 17A Tab 178 Tab 18 Tab 19 Tab 20A Tab 20B Tab 21 Tab 22 Tab 23 Staff Report dated December 10, 2009 Final Statement of Reasons Supplementto Final Statement of Reasons Addendum to the Supplementto Final Statement of Reasons Resolution 10-2 Final Regulation Order (October 19, 2010) Final Regulation Order ((January 20, 2011) Executive Order R-10-016 Executive Order R-1 0-022 Hearing Transcript

56 76 Fed. Reg. 77515, 77518 (December 13, 2011); 76 Fed .Reg. 77521, 77525 (December 13, 2011).

16