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[Federal Register Volume 77, Number 235 (Thursday, December 6, 2012)]
[Notices]
[Pages 72846-72851]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29511]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9758-2]

California State Nonroad Engine Pollution Control Standards; In-
Use Portable Diesel Engines 50 Horsepower and Greater; Notice of 
Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of decision.

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SUMMARY: EPA is granting the California Air Resources Board's (CARB's) 
request for an authorization of its airborne toxic control measure for 
in-use portable diesel-fueled compression-ignition engines 50 
horsepower and greater.

DATES: Petitions for review must be filed by February 4, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2011-0101. All documents relied upon in making this

[[Page 72847]]

decision, including those submitted to EPA by CARB, are contained in 
the public docket. Publicly available docket materials are available 
either electronically through www.regulations.gov or in hard copy at 
the Air and Radiation Docket in the EPA Headquarters Library, EPA West 
Building, Room 3334, located at 1301 Constitution Avenue NW, 
Washington, DC. The Public Reading Room is open to the public on all 
federal government working days from 8:30 a.m. to 4:30 p.m.; generally, 
it is open Monday through Friday, excluding holidays. The telephone 
number for the Reading Room is (202) 566-1744. The Air and Radiation 
Docket and Information Center's Web site is http://www.epa.gov/oar/docket.html. The electronic mail (email) address for the Air and 
Radiation Docket is: a-and-r-Docket@epa.gov, the telephone number is 
(202) 566-1742, and the fax number is (202) 566-9744. An electronic 
version of the public docket is available through the federal 
government's electronic public docket and comment system. You may 
access EPA dockets at http://www.regulations.gov. After opening the 
www.regulations.gov Web site, enter EPA-HQ-OAR-2011-0101 in the ``Enter 
Keyword or ID'' fill-in box to view documents in the record. Although a 
part of the official docket, the public docket does not include 
Confidential Business Information (``CBI'') or other information whose 
disclosure is restricted by statute.
    EPA's Office of Transportation and Air Quality (``OTAQ'') maintains 
a Web page that contains general information on its review of 
California waiver requests. Included on that page are links to prior 
waiver Federal Register notices, some of which are cited in today's 
notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: Kristien G. Knapp, Attorney-Advisor, 
Compliance Division, Office of Transportation and Air Quality, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., 
Washington, DC 20460. Telephone: (202) 343-9949. Fax: (202) 343-2800. 
Email: knapp.kristien@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

A. California's Portable Diesel Equipment Regulation

    In a letter dated December 5, 2006, CARB submitted to EPA its 
request pursuant to section 209 of the Clean Air Act (``CAA'' or ``the 
Act''), regarding its regulations to enforce its airborne toxic control 
measure (ATCM) for in-use portable diesel-fueled engines 50 brake-
horsepower (hp) and greater (CARB's ``PDE'' regulation).\1\ As defined 
in CARB's regulation, ``portable engines'' are engines that may be 
moved easily from location to location.\2\ The engines are used to 
power a variety of equipment, including pumps, ground support equipment 
at airports, cranes, oil-well drilling and workover rigs, power 
generators, dredging equipment, rock crushing and screening equipment, 
welding equipment, woodchippers, and compressors. To be portable, the 
engine must not reside at any one location for more than 12 consecutive 
months. A location is defined as any place of operation or single site 
at a building, structure, facility, installation or well site. CARB 
expects the PDE regulation to reduce diesel particulate matter (PM) 
emissions by 95 percent, and significant health costs will be saved by 
reduced mortality, reduced incidences of cancer, chronic bronchitis, 
asthma and fewer hospital visits caused by pneumonia and asthma-related 
conditions.
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    \1\ Letter from Catherine Witherspoon, Executive Officer, 
California Air Resources Board to Administrator Stephen L. Johnson, 
December 5, 2006, EPA-HQ-OAR-2011-0101-002.
    \2\ See California Air Resources Board (``CARB''), 
``Authorization Request Support Document,'' December 5, 2006, EPA-
HQ-OAR-2011-0101-0003, at 4 (hereinafter ``CARB Support Document'').
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    CARB's authorization request covers four primary substantive 
requirements: (1) Starting on January 1, 2010, all portable engines in 
California must be certified to meet a federal or California standard 
for newly manufactured nonroad engines; (2) Starting on January 1, 
2020, all portable engines in California must be either (a) certified 
to meet federal Tier 4 emission standards, (b) equipped with a properly 
functioning CARB Level-3 verified technology,\3\ or (c) equipped with a 
combination of control strategies that have been verified together with 
CARB to achieve at least an 85 percent reduction in diesel PM 
emissions; (3) All portable engines that, prior to January 1, 2006, 
have not been either registered in CARB's Portable Equipment 
Registration Program (``PERP'') or permitted under the permit program 
of an air quality management district or air pollution control district 
must meet the most stringent of the federal or California emission 
standards for nonroad engines at the time the engine is either 
registered in the PERP or registered for a permit; and (4) Each fleet 
of portable engines must comply with increasingly more stringent 
weighted PM emission fleet averages that apply on three different 
deadlines (January 1, 2013, January 1, 2017 and January 1, 2020).\4\ 
Owners of in-use equipment have options available to meet the CARB 
requirements.\5\ These include: purchasing new equipment with cleaner 
engines, repowering existing equipment with cleaner engines, using 
verified add-on control devices on existing equipment and engines, 
switching to alternative diesel fuels or alternative fuels, or 
electrifying some or all of the in-use fleet and receiving emission 
credits.
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    \3\ Level 3 p.m. control technology refers to a control 
technology that has been verified to achieve PM reductions of at 
least 85 percent under the CARB ``Verification Procedure, Warranty 
and In-Use Compliance Requirements for In-Use Strategies to Control 
Emissions from Diesel Engines,'' 13 California Code of Regulations 
(CCR) sections 2700-2710.
    \4\ The PDE regulation contains a fifth substantive requirement 
that pertains to the fuels that may be used in in-use portable 
equipment engines, but this fuels requirement is not preempted by 
CAA section 209(e). See CARB Support Document at 2.
    \5\ See CARB Support Document at 4.
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    Certain types of diesel-fueled engines are exempt from the PDE 
regulations. Engines used to propel mobile applications are exempt, 
including dual-use engines that both propel the equipment and operate 
the attached equipment.\6\ Dual-fuel diesel pilot engines, military 
tactical support equipment, and ground support equipment (used at 
airports) are also exempt from the regulation. PDEs that are used 
solely in emergency applications or are ``low-use'' engines that run 
less than eighty hours annually are also not subject to the fleet 
emission standards.\7\
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    \6\ See CARB Support Document at 5.
    \7\ See CARB Support Document at 10.
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    Credits toward satisfying the fleet standard can be earned by 
opting to use electric power on a given project in lieu of a portable 
diesel engine, if more than 200 hours of grid power are used.\8\ Under 
certain circumstances, alternative-fueled engines operating more than 
100 hours per year can be allowed into the fleet. Also, fleet owners 
who purchase federal Tier 4 engines prior to January 1, 2013 may count 
the engine twice in calculating the fleet weighted diesel PM emission 
rates for the 2013 deadline, and the same allowance is made for Tier 4 
engines purchased prior to the 2017 deadline. The PDE regulation also 
has recordkeeping and reporting requirements.\9\ Records must be kept 
only for engines taking advantage of the incentives and exemptions 
described above. For example, records must be kept for engines with 
hourly limitations, like low-use engines, or hourly minimums, like 
alternative-fuel engines.

[[Page 72848]]

Status reports and compliance statements must be submitted to CARB and 
include information identifying each engine and its emission rate, as 
well as the fleet emission rate. The local air districts and CARB both 
are given authority to review or seek enforcement action for violation 
of the fleet emission standards, and either can take appropriate 
enforcement action as necessary.
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    \8\ See CARB Support Document at 11.
    \9\ See CARB Support Document at 12-13.
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    CARB's PDE regulation was considered at the Board's public hearing 
on February 26, 2004.\10\ The proposed regulations were approved, with 
modifications, in Resolution 04-7, in which the CARB Board directed the 
CARB Executive Officer to adopt the PDE regulation after making the 
proposed language available for public comment for a supplemental 
period of fifteen days.\11\ The public comment period ended June 1, 
2004, and the CARB Executive Officer considered the two submitted 
written comments and determined that the comments did not require the 
regulation to be modified or reconsidered by the CARB Board.\12\ The 
Executive Officer adopted the ATCM by executive order G-04-080 on 
December 23, 2004.\13\ California's Office of Administrative Law 
approved the PDE regulation on February 9, 2005, and the regulations 
were adopted at 93116-93116.5, title 17, California Code of 
Regulations, effective March 11, 2005.\14\
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    \10\ See CARB Support Document at 2.
    \11\ CARB, Resolution 04-7, EPA-HQ-OAR-2011-0101-0004.
    \12\ CARB Support Document at 2. See also CARB Executive Order 
G-04-080, EPA-HQ-OAR-2011-0101-0005.
    \13\ CARB, Executive Order G-04-080, EPA-HQ-OAR-2011-0101-0005.
    \14\ CARB, Final Regulation Order, EPA-HQ-OAR-2011-0101-0006.
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B. Nonroad Authorizations

    Section 209(e)(1) of the Act permanently preempts any State, or 
political subdivision thereof, from adopting or attempting to enforce 
any standard or other requirement relating to the control of emissions 
for new nonroad engines or vehicles. States are also preempted from 
adopting and enforcing standards and other requirements related to the 
control of emissions from non-new nonroad engines or vehicles. Section 
209(e)(2) requires the Administrator, after notice and opportunity for 
public hearing, to authorize California to enforce such standards and 
other requirements, unless EPA makes one of three findings. In 
addition, other states with attainment plans may adopt and enforce such 
regulations if the standards, and implementation and enforcement 
procedures, are identical to California's standards. On July 20, 1994, 
EPA promulgated a rule that sets forth, among other things, regulations 
providing the criteria, as found in section 209(e)(2), which EPA must 
consider before granting any California authorization request for new 
nonroad engine or vehicle emission standards.\15\ EPA later revised 
these regulations in 1997.\16\ As stated in the preamble to the 1994 
rule, EPA has historically interpreted the section 209(e)(2)(iii) 
``consistency'' inquiry to require, at minimum, that California 
standards and enforcement procedures be consistent with section 209(a), 
section 209(e)(1), and section 209(b)(1)(C) (as EPA has interpreted 
that subsection in the context of section 209(b) motor vehicle 
waivers).\17\
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    \15\ 59 FR 36969 (July 20, 1994).
    \16\ See 62 FR 67733 (December 30, 1997). The applicable 
regulations, now in 40 CFR part 1074, subpart B, Sec.  1074.105, 
provide:
    (a) The Administrator will grant the authorization if California 
determines that its standards will be, in the aggregate, at least as 
protective of public health and welfare as otherwise applicable 
federal standards.
    (b) The authorization will not be granted if the Administrator 
finds that any of the following are true:
    (1) California's determination is arbitrary and capricious.
    (2) California does not need such standards to meet compelling 
and extraordinary conditions.
    (3) The California standards and accompanying enforcement 
procedures are not consistent with section 209 of the Act.
    (c) In considering any request from California to authorize the 
state to adopt or enforce standards or other requirements relating 
to the control of emissions from new nonroad spark-ignition engines 
smaller than 50 horsepower, the Administrator will give appropriate 
consideration to safety factors (including the potential increased 
risk of burn or fire) associated with compliance with the California 
standard.
    \17\ See 59 FR 36969 (July 20, 1994).
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    In order to be consistent with section 209(a), California's nonroad 
standards and enforcement procedures must not apply to new motor 
vehicles or new motor vehicle engines. To be consistent with section 
209(e)(1), California's nonroad standards and enforcement procedures 
must not attempt to regulate engine categories that are permanently 
preempted from state regulation. To determine consistency with section 
209(b)(1)(C), EPA typically reviews nonroad authorization requests 
under the same ``consistency'' criteria that are applied to motor 
vehicle waiver requests. Pursuant to section 209(b)(1)(C), the 
Administrator shall not grant California a motor vehicle waiver if she 
finds that California ``standards and accompanying enforcement 
procedures are not consistent with section 202(a)'' of the Act. 
Previous decisions granting waivers and authorizations have noted that 
state standards and enforcement procedures are inconsistent with 
section 202(a) if: (1) There is inadequate lead time to permit the 
development of the necessary technology giving appropriate 
consideration to the cost of compliance within that time, or (2) the 
federal and state testing procedures impose inconsistent certification 
requirements.

C. Burden of Proof

    In Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (D.C. Cir. 
1979) (``MEMA I''), the U.S. Court of Appeals stated that the 
Administrator's role in a section 209 proceeding is to:

consider all evidence that passes the threshold test of materiality 
and * * * thereafter assess such material evidence against a 
standard of proof to determine whether the parties favoring a denial 
of the waiver have shown that the factual circumstances exist in 
which Congress intended a denial of the waiver.\18\
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    \18\ MEMA I, 627 F.2d at 1122.

The court in MEMA I considered the standards of proof under section 209 
for the two findings related to granting a waiver for an ``accompanying 
enforcement procedure'' (as opposed to the standards themselves): (1) 
Protectiveness in the aggregate and (2) consistency with section 202(a) 
findings. The court instructed that ``the standard of proof must take 
account of the nature of the risk of error involved in any given 
decision, and it therefore varies with the finding involved. We need 
not decide how this standard operates in every waiver decision.'' \19\
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    \19\ Id.
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    The court upheld the Administrator's position that, to deny a 
waiver, there must be `clear and compelling evidence' to show that 
proposed procedures undermine the protectiveness of California's 
standards.\20\ The court noted that this standard of proof also accords 
with the congressional intent to provide California with the broadest 
possible discretion in setting regulations it finds protective of the 
public health and welfare.\21\
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    \20\ Id.
    \21\ Id.
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    With respect to the consistency finding, the court did not 
articulate a standard of proof applicable to all proceedings, but found 
that the opponents of the waiver were unable to meet their burden of 
proof even if the standard were a mere preponderance of the evidence. 
Although MEMA I did not explicitly consider the standards of proof 
under section 209 concerning a waiver request for ``standards,'' as 
compared to accompanying enforcement

[[Page 72849]]

procedures, there is nothing in the opinion to suggest that the court's 
analysis would not apply with equal force to such determinations. EPA's 
past waiver decisions have consistently made clear that: ``[E]ven in 
the two areas concededly reserved for Federal judgment by this 
legislation--the existence of `compelling and extraordinary' conditions 
and whether the standards are technologically feasible--Congress 
intended that the standards of EPA review of the State decision to be a 
narrow one.'' \22\
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    \22\ See, e.g., 40 FR 21102-103 (May 28, 1975).
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    Opponents of the waiver bear the burden of showing that the 
criteria for a denial of California's waiver request have been met. As 
found in MEMA I, this obligation rests firmly with opponents of the 
waiver in a section 209 proceeding:

[t]he language of the statute and its legislative history indicate 
that California's regulations, and California's determinations that 
they must comply with the statute, when presented to the 
Administrator are presumed to satisfy the waiver requirements and 
that the burden of proving otherwise is on whoever attacks them. 
California must present its regulations and findings at the hearing 
and thereafter the parties opposing the waiver request bear the 
burden of persuading the Administrator that the waiver request 
should be denied.\23\
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    \23\ MEMA I, 627 F.2d at 1121.

The Administrator's burden, on the other hand, is to make a reasonable 
evaluation of the information in the record in coming to the waiver 
decision. As the court in MEMA I stated: ``here, too, if the 
Administrator ignores evidence demonstrating that the waiver should not 
be granted, or if he seeks to overcome that evidence with unsupported 
assumptions of his own, he runs the risk of having his waiver decision 
set aside as `arbitrary and capricious.' '' \24\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \25\
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    \24\ Id. at 1126.
    \25\ Id.
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D. EPA's Administrative Process in Consideration of California's PDE 
Regulation

    Upon receipt of CARB's request, EPA offered an opportunity for a 
public hearing, and requested written comment on issues relevant to a 
full section 209(e) authorization analysis, by publication of a Federal 
Register notice on February 9, 2011.\26\ Specifically, we requested 
comment on: (a) Whether CARB's determination that its standards, in the 
aggregate, are at least as protective of public health and welfare as 
applicable federal standards is arbitrary and capricious, (b) whether 
California needs such standards to meet compelling and extraordinary 
conditions, and (c) whether California's standards and accompanying 
enforcement procedures are consistent with section 209 of the Act.
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    \26\ See 76 FR 7196 (February 9, 2011).
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    In response to EPA's February 9, 2011 Federal Register notice, EPA 
received one request for a public hearing, which was withdrawn, and no 
public comments.\27\
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    \27\ EPA, ``Memorandum from Cassie Weaver to Docket EPA-HQ-OAR-
2011-0101,'' EPA-HQ-OAR-2011-0101-0029.
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II. Discussion

A. California's Protectiveness Determination

    Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an 
authorization if the agency finds that California was arbitrary and 
capricious in its determination that its standards are, in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards. The California Air Resources Board made a 
protectiveness determination in Resolution 04-7, finding that 
California's PDE regulations will not cause the California emission 
standards, in the aggregate, to be less protective of public health and 
welfare than applicable federal standards.\28\ CARB presents that 
California's PDE regulations will be, in the aggregate, ``undisputedly 
at least as stringent as applicable federal regulations'' because 
``there are no federal standards for in-use portable engines.'' \29\ 
CARB received no information calling this determination into 
question.\30\ Accordingly, CARB concludes that the protectiveness 
determination ``clearly is not arbitrary or capricious.'' \31\
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    \28\ ``BE IT FURTHER RESOLVED that the Board hereby determines 
that pursuant to Title II, section 209(e)(2) of the federal Clean 
Air Act, as amended in 1990, that the emission standards and other 
requirements related to the control of emissions adopted as part of 
this ATCM are, in the aggregate, at least as protective of public 
health and welfare as applicable federal standards, that California 
needs the adopted standards to meet compelling and extraordinary 
conditions, and that the adopted standards and accompanying 
enforcement procedures are consistent with the provisions of section 
209.'' CARB, Resolution 04-7, EPA-HQ-OAR-2011-0101-0004.
    \29\ CARB Support Document at 19. See also CARB, Resolution 04-
7, EPA-HQ-OAR-2011-0101-0004.
    \30\ CARB Support Document at 19.
    \31\ Id.
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    EPA did not receive any comments challenging California's 
protectiveness determination. Therefore, based on the record before us, 
EPA finds that opponents of the authorization have not shown that 
California was arbitrary and capricious in its determination that its 
standards are, in the aggregate, at least as protective of public 
health and welfare as applicable federal standards.

B. Need for California Standards To Meet Compelling and Extraordinary 
Conditions

    Section 209(e)(2)(ii) of the Act instructs that EPA cannot grant an 
authorization if the agency finds that California ``does not need such 
California standards to meet compelling and extraordinary conditions * 
* *.'' This criterion restricts EPA's inquiry to whether California 
needs its own mobile source pollution program to meet compelling and 
extraordinary conditions, and not whether any given standards are 
necessary to meet such conditions.\32\ As discussed above, for over 
forty years CARB has repeatedly demonstrated the need for its mobile 
source emissions program to address compelling and extraordinary 
conditions in California. In its Resolution 04-7, CARB affirmed its 
longstanding position that California continues to need its own motor 
vehicle and engine program to meet its serious air pollution 
problems.\33\ Likewise, EPA has consistently recognized that California 
continues to have the same ``geographical and climatic conditions that, 
when combined with the large numbers and high concentrations of 
automobiles, create serious pollution problems.'' \34\ Furthermore, no 
commenter has presented any argument or evidence to suggest that 
California no longer needs a separate mobile source emissions program 
to address compelling and extraordinary conditions in California. 
Therefore, EPA has determined that we cannot deny California an 
authorization for its PDE regulation under section 209(e)(2)(ii).
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    \32\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
    \33\ CARB, ``Resolution 04-7,'' EPA-HQ-OAR-2011-0101-0004.
    \34\ 49 FR 18887, 18890 (May 3, 1984); see also 76 FR 34693 
(June 14, 2011), 74 FR 32744, 32763 (July 8, 2009), and 73 FR 52042 
(September 8, 2008).
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C. Consistency With Section 209 of the Clean Air Act

    Section 209(e)(2)(iii) of the Act instructs that EPA cannot grant 
an authorization if California's standards and enforcement procedures 
are not consistent with section 209. As described above, EPA has 
historically evaluated this criterion for consistency with sections 
209(a), 209(e)(1), and 209(b)(1)(C).

[[Page 72850]]

1. Consistency With Section 209(a)
    To be consistent with section 209(a) of the Clean Air Act, 
California's ATCM for portable diesel engines must not apply to new 
motor vehicles or new motor vehicle engines. California's PDE 
regulation expressly apply only to in-use nonroad engines and do not 
apply to engines used in motor vehicles as defined by section 216(2) of 
the Clean Air Act.\35\ No commenter presented otherwise. Therefore, EPA 
cannot deny California's request on the basis that California's PDE 
regulation are not consistent with section 209(a).
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    \35\ CARB Support Document at 5 (``Engines used to propel * * * 
motor vehicles are not regulated by the ATCM.'') Also, ``the ATCM 
neither applies to motor vehicles that are preempted under 209(a) or 
to new engines less than 175 hp used in farm and construction 
equipment and vehicles or to new locomotives or locomotive 
engines.'' Id. at 21.
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2. Consistency With Section 209(e)(1)
    To be consistent with section 209(e)(1) of the Clean Air Act, 
California's ATCM for portable diesel engines must not affect new 
farming or construction vehicles or engines that are below 175 
horsepower, or new locomotives or their engines. CARB presents that its 
PDE regulation does not apply to new locomotives or locomotive 
engines.\36\ To the extent that an owner or operator elects to meet the 
standards established by the PDE regulation by replacing existing 
equipment with new equipment, or repowering existing equipment with new 
engines, the PDE regulation requires the use of engines meeting federal 
and California certification requirements for new engines.\37\ 
Therefore, CARB states, ``the ATCM does not establish emission 
standards that are otherwise preempted'' under Clean Air Act section 
209(e)(1).\38\ CARB received no information calling this determination 
into question.\39\ No commenter presented otherwise to EPA. Therefore, 
EPA cannot deny California's request on the basis that California's PDE 
regulation is not consistent with section 209(e)(1).
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    \36\ CARB Support Document at 18.
    \37\ Id.
    \38\ Id.
    \39\ Id.
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3. Consistency With Section 209(b)(1)(C)
    The requirement that California's standards be consistent with 
section 209(b)(1)(C) of the Clean Air Act effectively requires 
consistency with section 202(a) of the Act. California standards are 
inconsistent with section 202(a) of the Act if there is inadequate 
lead-time to permit the development of technology necessary to meet 
those requirements, giving appropriate consideration to the cost of 
compliance within that timeframe. California's accompanying enforcement 
procedures would also be inconsistent with section 202(a) if federal 
and California test procedures conflicted. The scope of EPA's review of 
whether California's action is consistent with section 202(a) is 
narrow. The determination is limited to whether those opposed to the 
authorization or waiver have met their burden of establishing that 
California's standards are technologically infeasible, or that 
California's test procedures impose requirements inconsistent with the 
federal test procedures.\40\
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    \40\ MEMA I, 627, F.2d at 1126.
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a. Technological Feasibility
    Congress has stated that the consistency requirement of section 
202(a) relates to technological feasibility.\41\ Section 202(a)(2) 
states, in part, that any regulation promulgated under its authority 
``shall take effect after such period as the Administrator finds 
necessary to permit the development and application of the requisite 
technology, giving appropriate consideration to the cost of compliance 
within such period.'' Section 202(a) thus requires the Administrator to 
first determine whether adequate technology already exists; or if it 
does not, whether there is adequate time to develop and apply the 
technology before the standards go into effect. The latter scenario 
also requires the Administrator to decide whether the cost of 
developing and applying the technology within that time is feasible. 
Previous EPA waivers are in accord with this position.\42\ For example, 
a previous EPA waiver decision considered California's standards and 
enforcement procedures to be consistent with section 202(a) because 
adequate technology existed as well as adequate lead-time to implement 
that technology.\43\ Subsequently, Congress has stated that, generally, 
EPA's construction of the waiver provision has been consistent with 
congressional intent.\44\
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    \41\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
    \42\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182, 
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
    \43\ 41 FR 44209 (October 7, 1976).
    \44\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
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    CARB presents that its PDE regulation satisfies the technological 
feasibility and lead time criteria because CARB either has 
``demonstrated that the necessary technology presently exists to meet 
the established standards or has specifically identified the projected 
control technology * * * and has explained its reasons for believing 
that each of the steps can be completed in the time available.'' \45\ 
CARB states that the individual portable engine requirements and the 
initial fleet average requirements which take effect in 2013 will 
likely be met by purchasing new equipment with cleaner engines or 
repowering existing equipment with cleaner engines.\46\ In addition to 
engine replacement, owners and operators of portable diesel engines 
will likely use verified diesel particulate matter retrofit strategies 
to meet the two subsequent fleet average requirements that take effect 
in 2017 and 2020.\47\
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    \45\ CARB Support Document at 22.
    \46\ See CARB Support Document at 4, 22.
    \47\ Id. at 22.
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    CARB presents that the individual portable engine requirements are 
technologically feasible in the time provided because they parallel 
federal emission standards for off-road compression ignition engines, 
set forth in 40 CFR parts 89 and 1039, for which the EPA made express 
findings of technological feasibility.\48\ CARB has established a 
verification program for diesel particulate matter retrofit 
technologies, and based on the activity of that program, presents that 
there is a solid base of control technology to meet the fleet average 
requirements in the PDE regulation.\49\ Finally, owners and operators 
of portable diesel engines will not be required to use retrofit 
technologies until 2017, which CARB found to be ``ample lead time to 
allow the development of the necessary control techniques.'' * * * \50\ 
CARB expects that the costs associated with the PDE regulation will be 
generated by the early replacement or repower of portable engines, 
prior to the end of the engine's useful life, and will range from $135-
$220 per horsepower.\51\
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    \48\ Id.
    \49\ Id. at 22. See also id. at 22-26.
    \50\ Id. at 26.
    \51\ CARB, ``CARB Staff Report: Initial Statement of Reasons for 
Proposed Rulemaking, Appendix G: Economic Impact Analysis 
Methodology,'' January 2004, EPA-HQ-OAR-2011-0101-0022, at G-2.
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    EPA did not receive any comments suggesting that CARB's standards 
and test procedures are technologically infeasible and no information 
to contradict CARB's cost estimates. Consequently, based on the record, 
EPA cannot deny California's authorization based on technological 
infeasibility.
b. Consistency of Certification Procedures
    California's standards and accompanying enforcement procedures 
would also be inconsistent with section

[[Page 72851]]

202(a) if the California test procedures were to impose certification 
requirements inconsistent with the federal certification requirements. 
Such inconsistency means that manufacturers would be unable to meet 
both the California and federal testing requirements using the same 
test vehicle or engine.\52\ CARB presents that the PDE regulation 
raises no issue regarding test procedure consistency because the 
regulation does not establish any test procedures for which there are 
comparable federal test procedures.\53\
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    \52\ See, e.g., 43 FR 32182 (July 25, 1978).
    \53\ CARB Support Document at 27.
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    EPA received no comments suggesting that CARB's PDE regulation 
poses any test procedure consistency problem. Therefore, based on the 
record, EPA cannot find that CARB's testing procedures are inconsistent 
with section 202(a). Consequently, EPA cannot deny CARB's request based 
on this criterion.

E. Authorization Determination for California's PDE Regulation

    After a review of the information submitted by CARB, EPA finds that 
those opposing California's request have not met the burden of 
demonstrating that authorization for California's PDE regulation should 
be denied based on any of the statutory criteria of section 209(e)(2). 
For this reason, EPA finds that an authorization for California's PDE 
regulation should be granted.

III. Decision

    The Administrator has delegated the authority to grant California 
section 209(e) authorizations to the Assistant Administrator for Air 
and Radiation. After evaluating California's PDE regulation and CARB's 
submissions, EPA is granting an authorization to California for its PDE 
regulation.
    My decision will affect not only persons in California, but also 
entities outside the State who must comply with California's 
requirements. For this reason, I determine and find that this is a 
final action of national applicability for purposes of section 
307(b)(1) of the Act. Pursuant to section 307(b)(1) of the Act, 
judicial review of this final action may be sought only in the United 
States Court of Appeals for the District of Columbia Circuit. Petitions 
for review must be filed by February 4, 2013. Judicial review of this 
final action may not be obtained in subsequent enforcement proceedings, 
pursuant to section 307(b)(2) of the Act.

IV. Statutory and Executive Order Reviews

    As with past authorization and waiver decisions, this action is not 
a rule as defined by Executive Order 12866. Therefore, it is exempt 
from review by the Office of Management and Budget as required for 
rules and regulations by Executive Order 12866.
    In addition, this action is not a rule as defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a 
supporting regulatory flexibility analysis addressing the impact of 
this action on small business entities.
    Further, the Congressional Review Act, 5 U.S.C. 801, et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, does not apply because this action is not a rule for purposes of 
5 U.S.C. 804(3).

    Dated: November 29, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2012-29511 Filed 12-5-12; 8:45 am]
BILLING CODE 6560-50-P
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