Matthew Rodriquez 

Secretary for 

Environmental Protection 

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 

Headquarters Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Mail Code 1101A 

Washington, D.C. 20460 

Edmund G. Brown Jr. 

Governor 

RE: REQUEST THAT THE UNITED STATES ENVIRONMENTAL PROTECTION 

AGENCY CONFIRM THAT CERTAIN REQUIREMENTS ARE WITHIN THE 

SCOPE OF PREVIOUSLY GRANTED AUTHORIZATION UNDER CLEAN AIR 

ACT SECTION 209(E)(2); AMENDMENTS TO THE PORTABLE DIESELFUELED ENGINES AIR TOXICS CONTROL MEASURE 

Dear Administrator McCarthy: 

In 2007, 2009, and 2010, the State of California Air Resources Board (GARB) approved 

amendments to California's air toxic control measure for portable diesel-fueled engines 

rated 50 brake horsepower and greater. As discussed in more detail in the 

authorization Support Document, these amendments addressed issues that developed 

after GARB first considered the regulation. 

I am writing to request that you confirm these amendments fall within the scope of the 

previously granted authorization. I am enclosing an Authorization Support Document, 

which include a description of the adopted amendments and our analysis and rationale 

for granting the requested action. 

If you need additional technical information on this item, please contact Mr. Ron Haste, 

Manager, Mobile Source Control Division, Mobile Source Regulatory Development 

The energy challenge facing California is real. Every Californian needs to take immediate action to reduce energy consumption. 

For a list of simple ways you can reduce demand and cut your energy costs, see our website: http://www.arb.ca.gov. 

California Environmental Protection Agency 

Printed on Recycled Paper 
Ms. Gina McCarthy, Administrator 

September 15, 2014 

Page 2 

Branch, Off-Road Control Section, at (626) 575-6676 or rhaste@arb.ca.gov. You may 

address legal questions to Mr. George T. Poppic, Jr., Senior Attorney, at (916) 322-

3940 or gpoppic@arb.ca.gov. Thank you for your consideration. 

Sincerely, 

~U/4 Richard W. Corey 

Executive Officer 

Enclosures 

cc: (continued on next page) 

David Dickinson (w/ encls.) 

Attorney/ Advisor 

United States Environmental Protection Agency 

Office of Transportation and Air Quality 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Mail Code 6405J 

Washington, District of Columbia 20460 

Janet Cohen (w/ encls.) 

Associate Director, Compliance Division 

United States Environmental Protection Agency 

Office of Transportation and Air Quality 

2000 Traverwood 

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, Senior Attorney (w/ encls.) 

ARB Legal Office 
Ms. Gina McCarthy, Administrator 

September 15,2014 

Page 3 

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

ARB Legal Office 

Alex Wang, Senior Attorney (w/o encls.) 

ARB Legal Office 
REQUEST FOR AUTHORIZATION ACTION PURSUANT TO CLEAN AIR ACT 

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 

Pursuant to Clean Air Act (CAA) section 209(e)(2), the State of California Air Resources 

Board (CARB or the Board) is requesting that the Administrator of the United States 

Environmental Protection Agency (EPA) take the section 209(e) authorization actions 

described below for 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 or ATCM). 

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 under state law on March 1.1, 2005, the 

authorization request was submitted 'on December 5, 2006, and EPA granted California 

an authorization on November 29, 2012. 1 :. 

The Portable Engine ATCM is an element of GARB's "Risk Reduction Plan to Reduce 

PM Emissions from 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 Prior to 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 et seq. EPA granted GARB a 

full authorization for the PERP regulation, as last amended ih 2007, and further confirmed that certain 

portions of the PERP were within the scope of prior authorizations. 77 Fed. Reg. 72581 (December 6, 

2012). With the initial authorization of the separate Portable ATCM, published on the same date 

December 6, 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 set forth in the Portable Engine ATCM, PERP has 

become a purely voluntary program that owners and operators may elect to 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. If the Administrator feels otherwise, GARB will submit the PERP amendments for 

authorization action. 

3 In this document, the term "off-road" is used interchangeably with the federal term "non-ro:~d." 

1 
As authorized, the initially adopted Portable Engine ATCM requires engines not 

registered or permitted before January 2006 to meet the most stringent new engine 

emissions standards then applicable in order to 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 or operators of such fleets of engines are provided several compliance 

options to comply with the fleet emission standards, including purchasing new 

equipment with cleaner engines, repowering existing equipment with cleaner engines, 

using verified add-on control devices on existing equipment and engines, switching to 

alternative diesel fuels or alternative fuels, or electrifying some or all of the 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 IV of this document describe the provisions of the 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 that the 2007, 2009, and 2010 

amendments fall within the scope of the authorization granted for the 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 or federal 

emission standards for new off-road engines by January 1, 2010, subject to specified 

exceptions, and further required, beginning January 1, 2006, that portable engines 

initially registering with GARB or applying for permits from local air districts be certified 

to the most stringent of the federal or California emission standards for off-road engines. 

In September 2006, 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 of the Portable Engine ATCM that required portable engines 

initially registering with GARB or applying for local air districts permits on and after 

4 The 2006 amendments were emergency amendments adopted pursuant to the California Administrative 

Procedures Act, Government Code section 11446.1 and are not covered by this request. The emergency 

amendments were subsequently superseded by the Board's formal adoption of the emergency 

amendments in 2007; these 2007 amendments are covered by this request. 5 77 Fed. Reg. 72846 (December 6, 2012). 

2 
January 1, 2006 to be certified to the most stringent of the federal or California emission 

standards for off-road engines. The Board directed staff to consider options a11d to 

report back to the Board. CARS staff, in consultation with affected industry and the air 

districts, proposed emergency amendments to the Portable Engine ATCM. The Board 

approved the emergency amendments at its December 7, 2006 public hearing, and the 

Office of Administrative Law (OAL) approved the emergency amendments on 

December 27, 2006. These emergency amendments were filed with the Secretary of 

State and were effective for a period not to 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 past the 120 day period. The 2007 

Amendments became effective September 12, 2007. 

To address the inability of owners and operators of portable diesel engines to permit or 

register older engines on and after January 1, 2006 if their portable engines were not 

certified to the most stringent federal or California emission standards for new off-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 any time between March 1, 2004 and October 1, 2006, 7 or were either designated as 

exclusively used in emergency applications or were low-use engines. 8 

C. Permitting or Registration of Tier 1 and Tier 2 Engines Not Meeting Current 

Emission Standards 

The 2007 Amendments also revised the ATCM to allow Tier 1 and Tier 2 engines that 

did not meet currently applicable off-road emission standards (i.e., Tier 3 or Tier 4) 

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 

any time 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 or designated 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 of verified control 

technologies that have been verified together to 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) 

3 
D. Permitting or Registration of Engines Subject to Emissions Tier Changes 

The 2007 Amendments also allowed previous tier engines to be permitted o.r registered 

for a period of six months after a more stringent emissions tier becomes effective, even 

if the previous tier engines were not operated in California between March 1; 2004 and 

October 1, 2006. This provision only applies to engines that were subject to 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 if they met 

the then-applicable emission standards for the engine at the time of application and if 

the application for permitting or registration was submitted within six months of the 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 emissions tiers 

become effective and engine manufacturers, distributors, or dealers are unable to 

supply sufficient numbers of compliant engines.11 Under the initially adopted ATCM 

r~gulation, in such situations, owners and operators would have been precluded from 

permitting, registering, or operating equipment powered by prior-Tier engines, because 

the Portable Engine ATCM required those engines to be certified to the most stringent 

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 of 2008, 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, or dealer, that engines meeting the current emission standards are not 

available, or are not available in sufficient numbers or in a sufficient range of makes, models., and 

horsepower ratings. An almost identical provision was authorized as part of the flexibility provisions of the 

California Off-Road Compression-Ignition (CI) Engines and Equipment regulation, CaL Cod<:) Regs., tit 13 

§2420 et seq.,which provide equipment manufacturers flexibility 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 Tier 4 non-road Cl engine emission 

standards and test procedures for which EPA granted California authorization in 2010. 75 Fed. Reg. 

8056 (February 23, 201 0). 

4 
In-Use Diesel Fueled Fleets (In-Use Off-Road) regulation 13 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 of diesel 

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 of that rulemaking action, CARB amended its existing 

regulations, including the Portable Engine ATCM, to ensure that the 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 apply to both engines of two-engine cranes, enacted provisions in the 

Truck and Bus regulation to apply to both engines of privately 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 of two-engine cranes. 17 · 

C. Exempting Secondary Engines on Privately Owned Two-Engine Sweepers 

Private two-engine sweepers also use two engines; a propulsion engine to propel the 

sweeper and a secondary engine to power the sweeping equipment. As with twoengine cranes, the secondary engines on two-engine sweepers were previously 

regulated by the Portable Engine ATCM. 

13 Cal. Code Regs., tit. 13 § 2449 et seq. 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 or carrier that utilize two separate engines; one engine 

is used to propel the vehicle, and a secondary engine is used to power the crane to lift and move 

materials and objects. 15 Cal. Code Regs., tit. 13 § 2025 et seq. 16 § 93116.1 (b)(8), 93'11.6.2(a)(6). (See tab 13). The In-Use Off-Road Vehicle regulation is set forth in 

Cal. Code Regs., tit. 13 § 2449 et seq. 17 Deletion of former§ 93116.3(b)(4) and (c)(3)(D); lattice boom cranes are a subcategory of two engine 

cranes. (See Tab 20A) 

5 
The 2009 Amendments exempted the secondary engines on privately owned twoengine sweepers from the Portable Engine ATCM and instead subject such secondary· 

engines to the provisions of the Truck and Bus regulation. 18 

IV. SUMMARY OF 2010 AMENDMENTS TO THE PORTABLE ENGINE ATCM 

A. Background 

The Board formally considered the 2010 Amendments to the Portable Engine ATCM at 

its January 28, 2010 meeting, 19 and California's Office of Administrative Law (OAL) 

approved the 2010 Amendments on October 19, 2010 and January 20, 2011. The 2010 

Amendments became fully operative under state law on February 19, 2011. 

The 2010 Amendments primarily established provisions for additional compliance 

flexibility for owners and operators of portable engines as described in greater detail 

below. 

B. Operation and Permitting of Non-Certified Engines 

As discussed above, the Portable Engine ATCM, as initially adopted, required in-use 

portable diesel-fueled engines in California to be certified to California or federal 

emission standards for new off-road engines by January 1, 2010, unless those engines 

were designated as exclusively used in emergency applications or low-use engines. 

The 2010 Amendments allow any company, public agency, or military base to operate a 

limited number of non-certified engines for up to one year after the previously specified 

compliance date of January 1, 2010. Owners may elect to 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 eligible for 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 meet the most stringent California or federal offroad engine emission standards. The 2010 Amendments extend the applicability of this 

requirement to portable engines not permitted or registered prior to 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 of certified on-highway engines in portable equipment (Section 8.2) were adopted by CAR8 on 

August 27, 2010 (See Tab 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) 

6 
and allow local air districts to register or permit portable engines that do not meet the 

most stringent California or federal off-road engine emission standards until ,January 1, 

2017, provided such engines are certified to a California or federal 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 qualify for 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 or federal emission standards for new on-road engines to 

be permitted or registered by a local air district or registered in PERP. These certified 

on-highway engines will become part of the portable engine fleet 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 deck engines on water well drilling rigs were previously 

subject to the authorized provisions of the Portable Engine ATCM. To address 

concerns raised by the California Groundwater Association regarding the replacement 

of older deck engines on existing two-engine water well 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 of the Portable Engine ATCM because of the 

high costs of replacing such engines and the negligible emissions impact from such 

engines. 24 . 

G. Eligibility of Tier 1 and Tier 2 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 1 and Tier 2 engines that were 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 for the initialln·-Use OffRoad Diesel Vet1icle regulation and for the 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 of former§ 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 Tier 4 engines within two years of the availability of Tier 4 engines, which would be 

either 2016 or 2017 at the latest, depending on engine size. 

The 2010 Amendments now require the owners of such 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 December 31, 2009, but due to 

an oversight, the 2007 Amendments did not specify the expiration of that provision in 

the regulatory text. The 2010 Amendments corrected this oversight by deleting this 

provision. 27 

J. Additional Amendments28 

1. Specifying an emission factor for Tier 1 engines 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 1 engines 

less than 175 bhp do not have a PM emission standard, the Executive Orders for these 

engines do not specify a PM emission factor. The 2010 Amendments correct this 

oversight by specifying that for such engines CARB will use the same emission factor 

26 §93116.3(b)(1)(8). (See Tab 208) . 27 §93116.3(b)(5). (See Tab 208). The 2010 Amendments deleted this provision in lieu of specifying the 

December 31, 2009 expiration date in light of the fact that this expiration date had already passed when 

· the 2010 Amendments were approved. 28 These amendments solely clarify provisions of the existing Portable Engine ATCM and therefore do not 

require authorization. The amendments are described here to provide an overview of GARB's rulemaking 

action. 

8 
used for Tier 1 engines 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 a family 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 of the California 

Code of Regulations. The 2010 amendments specify that the PM emission factors for 

such engines are the applicable PM emission standards for the tier level to which the 

engines are certified.30 

3. Exempting certified engines that lost their 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 exempt from the general requirement to be 

certified to applicable GARB or EPA off-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) of the CAA sets 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 engines that 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 Administrator to grant California an 

authorization for standards 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 of the 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). 

9 
California'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 show that the State's 

standards and accompanying enforcement provisions are not consistent with sections 

209(a), 209(b)~1)(C)- that the standards are not consistent with CAA section 202(a)-

and 209(e)(1). 2 

In considering whether to grant authorizations for accompanying enforcement 

procedures tied to standards for which an authorization has already been granted, 

Administrators have long held that they will only address questions as to (1) whether the 

enforcement procedures are so lax that they threaten the validity of California's 

determination that its standards are as protective of public health and welfare as 

applicable federal standards and, (2) whether the enforcement procedures are 

consistent with section 202(a). 33 The Administrator has applied a similar analysis in 

confirming that amendments to a GARB standard or regulation are within the scope of a 

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 as applicable Federal standards, does not affect the consiste.ncy with 

section 209 of the Act, and raises no new issues affecting EPA's previous 

authorization determination. [Citation omitted.]34 · 

It is also well established that EPA may only consider the 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 of the authorization 

to show why it should not be granted. 35 

B. The 2007, 2009, and. 2010 Amendments Fall Within the Scop.e of the 

Previously Granted Authorization · · 

GARB requests that the Administrator confirm that the elements of the 2007 

Amendments described in Sections II. B-E, the elements of the 2009 Amendments 

described in Sections III.B and C, and the elements of the 2010 Amendments described 

32 59 Fed. Reg. :36969, 36983 (July 20, 1994). 

33 Motor and Equipment Manufacturers Association v. EPA (MEMA) (D.C. Cir. 1979) 627 F.2d 1095, 

1111, 1'113. 

34 65 Fe.d. Reg. 69767, 69768 (November 20, 2000). · 35 Motor and Equipment Manufacturers Association v. EPA (MEMA) supra 627 F.2d at 1121; 40 Fed. 

Reg. 23102, 23103-23104 (May 28, 1975). 

10 
in 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 for adoption the 2007, 2009 and 2010 Amendments to the Portable Engine 

ATCM, CARB approved Resolutions 07-9 and 07-10, 08-43, and 10-2, respectively, 

and determined that the emissions standards and other requirements related to the 

control of emissions adopted as part of the 2007, 2009, and 2010 Amendments were, in 

the aggregate, at least as protective of public health and welfare as applicable federal 

standards. 

The Administrator has no basis to find that the Board's protectiveness determinations 

undermine GARB's earlier Portable Engine ATCM protectiveness determination or are 

arbitrary or capricious because the 2007, 2009, and 2010 Amendments are indisputably 

more stringent than applicable federal requirements, given that EPA has no authority to 

regulate in-use off-road engines. 36 

2. Consistency with CAA Section 209 

a. Consistent with CAA sections 209(a) and 209(e)(1) 

In granting California the authorization for the initial Portable Engine ATCM, EPA found 

that regulation was not inconsistent with CAA section 209(a), because it did not regulate 

emissions from new motor vehicles or new motor vehicle engines. 37 It cannot be 

argued that the 2010 Amendment allowing the use of certified on-road engines for 

compliance with the Portable Engine ATCM is inconsistent with 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 incorrect to say that the engine is 

an on7road engine under these circumstances. CAA section 216(1 0) defines a non road 

engine to mean "an internal combustion engine ... that is not used in a motor vehicle," 

and CAA section 216(2) defines motor vehicle to mean "any self-propelled vehicle 

designed for transporting 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 or designed for on-road operation and is, thus, not a motor vehicle as 

defined by the CAA .. 

EPA also found that the initial Portable Engine ATCM was not inconsistent with CAA 

section 209(e)(1) because it did not apply to new off-road engines less than 175 hp 

used in farm and construction equipment and vehicles, new locomotives, or engines 

used in new locomotives. 38 Nothing in the 2007, 2009, and 2010 Amendments 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 (December 6, 2012). 

38 Ibid. 

11 
categories of mobile sources, and EPA therefore cannot find that the 2007, 2009, or the 

2010 Amendments are inconsistent with CAA sections 209(a) or 209(e)(1). 

b. Consistent with CAA section 202(a) 

Under CAA section 209(b)(1)(C), EPA determines if California standards are consistent 

with section 202(a) of the CAA by considering whether the California regulation or 

amendments provide sufficient lead time to permit the development of technology 

needed to meet the standards and other requirements, giving appropriate consideration 

to the cost of compliance in the timeframe provided, and if the California and federal test 

procedures are sufficiently compatible to permit manufacturers to meet both the state 

and federal test requirements with one test vehicle or engine. 39 The reference to "cost 

of compliance" in CAA section 202(a) refers to the economic costs of emission 

standards and accompanying enforcement procedures and the timing of a particular 

emission control regulation rather than to its social implications.40 As demonstrated 

below, each of the 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 of 2007 Amendments 

The 2007 Amendments identified above in Sections II. B-E do not increase the 

stringency of the 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, after January 1, 

2006, to be registered or permitted by local air districts, 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 year to 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 

emissions tier becomes effective. 

ii. Technical feasibility of 2009 Amendments 

The 2009 Amendments identified above in Sections III.B and III.C also do not increase 

the stringency of the authorized emission standards and related test procedures 

because they only exempt the secondary (auxiliary) engines on two engine cranes and 

privately owned two-engine sweepers from 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. 

12 
iii. Technical feasibility of 2010 Amendments 

The 201 0 Amendments identified above in Sections IV. B, C, and E-1 do not increase 

the stringency of the 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 of January 1, 201 0; allowing 

local air districts to register and permit portable engines that do not meet the most 

stringent California or federal 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-Tier 4 engines any time prior to the availability 

of an applicable Tier 4 engine or to retire such engines no later than January 1, 2017; 

and allowing Tier 1 and 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 inconsistent with section 202(a).41 

The 2010 Amendments identified in Section IV. D that allow the use of in-use portable 

engines certified to California or federal new on-road emission standards are not 

mandatory compliance requirements, but instead establish a technically feasible 

compliance alternative to the Portable Engine ATCM'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 or designated as low-use 

engines be replaced with Tier 4 engines no later than two years after the availability of 

Tier 4 engines, which would be 2017 at the latest. The 2010 Amendments now require 

such engines to be replaced with current Tier engines (at any time) or be retired by 

January 1, 2017. These amendments are technically feasible because they do not 

accelerate the previously specified replacement date, and because the Administrator 

has previously determined that California's Tier 1 through Tier 4 off-road compression 

ignition engine standards are technical feasible43 . 

41 77 Fed. Reg. 72846, 72850 (December 6, 2012). 42 See Motor and Equipment Mfrs. 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 

of a waiver if the regulation does not specify anot)ler technically 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 harmonized California and federal off-road Cl emissions standards and test procedures. The 

13 
iii. Consistency with 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 alter the test procedures specified for certifying federal 

or California portable engines,44 and to the extent that the compliance methods apply to 

in-use modifications of existing engines, they are not inconsistent with federal test 

procedures because EPA does not have any comparable in-use standards and test 

procedures and lacks the authority to adopt such requirements.45 

3. No New Issues 

CARB is not aware of any new issues affecting the previously granted authorization for 

the Portable Engine ATCM and therefore, to the extent that the 2007, 2009, and 2010 

Amendments modify the authorized requirements of the Portable Engine ATCM, they 

fall within the scope of the existing authorization. 

C. ·In the Alternative, the Administrator Must Grant a New Waiver 

Should the Administrator determine that any element of the 2007, 2009, or 2010 

Amendments do not fall within the scope of the existing authorization, CARB requests 

that the Administrator grant such elements of these Amendments a new authorization 

under CAA section 209(e)(2). As discussed above, no issue regarding protectiveness 

or consistency 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 under section 209(b) and authorizations for California's nonroad regulations 

under section 209(e) of the CAA. 

The relevant inquiry under section 209(e)(2)(A)(ii) is whether California needs its own 

emission control program to meet compelling and extraordinary conditions, not whether 

any given standard is necessary to meet such 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 1 through Tier 3 off-road engines rated less than 19 kilowatts 

(kW), equal to or greater than 19 kW but less than 130 kW, and greater than 130 kW. Similarly, the 2004-

2005 rulemaking essentially aligned California's emission standards and test procedures with federal 

standards and test procedures applicable to Tier 4 off-road engines. · 44 EPA has already determined that California and federal non road 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 that tend to produce them: 

geographical and climatic conditions that, when combined with large 

numbers and high concentrations of automobiles, create serious air 

pollution problems.47 

California -- in particular, the South Coast and San Joaquin Valley Air Basins -

continues to experience some of the worst air quality in the nation48 The unique 

geographical and climatic conditions, and the tremendous growth in vehicle population 

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 of the 8-hour ozone standard identified both air basins as 

severe.49 Both air basins also continue to be identified as non-attainment for PM2.5.

50 

EPA affirmed GARB's judgment, on behalf of the State of California, on this matter. 5

1 

In the California Clean Air Act 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 have the potential not only to prevent 

attainment of the state standards, but in some cases, to result in 

worsening of air quality. 52 · 

California, and particularly the South Coast and San Joaquin Valley Air Basins, continue 

to experience some of the worst air quality in the nation and continue to be in nonattainment with 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 use that moved Congress to authorize California to 

establish separate on-road motor vehicle standards in 1967 and off-road engine 

standards in 1990, still exist today. 5

4 

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 doubt of the continuing existence of 

47 /d .. 48 See e.g. Approval and Promulgation of State 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; Waiver of Federal 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 

15 
compelling and extraordinar¥ conditions justifying 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 by this 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 

Supplement to 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 October 2008 

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 

Supplement to Final Statement of Reasons 

Addendum to the Supplement to Final Statement of Reasons 

Resolution 1 0-2 

Final Regulation Order (October 19, 201 0) 

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