[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Notices]
[Pages 3030-3033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-907]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-8762-9]


California State Nonroad Engine and Vehicle Pollution Control 
Standards; Authorization of Transport Refrigeration Unit Engine 
Standards, Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision for Authorization of California Transport 
Refrigeration Unit In-use Engine Emission Standards.

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SUMMARY: EPA today, pursuant to section 209(e) of the Clean Air Act 
(Act), 42 U.S.C. 7543(e), is granting California its request for 
authorization to enforce its Airborne Toxic Control measure (ATCM) 
establishing in-use emission performance standards for engines in

[[Page 3031]]

transport refrigeration units (TRUs) and TRU generator sets that will 
be phased-in commencing in December 31, 2008.

ADDRESSES: The Agency's Decision Document, containing an explanation of 
the Assistant Administrator's decision, as well as all documents relied 
upon in making that decision, including those submitted to EPA by 
California, are available for public inspection in EPA Air and 
Radiation Docket and Information Center (Air Docket). Materials 
relevant to this decision are contained in Docket OAR-2005-0123 at the 
following location: EPA Air Docket, Room 3334, 1301 Constitution 
Avenue, NW., Washington, DC, 20460. The EPA Docket Center Public 
Reading Room is open from 8 a.m. to 5:30 p.m. Monday through Friday, 
except on government holidays. The Air Docket telephone number is (202) 
566-1742, and the facsimile number is (202) 566-1741. You may be 
charged a reasonable fee for photocopying docket materials, as provided 
in 40 CFR part 2.
    Additionally, 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 http://www.regulations.gov Web 
site, select ``Environmental Protection Agency'' from the pull-down 
Agency list, then scroll to ``Keyword or ID'' and enter EPA-HQ-OAR-
2005-0123 to view documents in the record of this TRU Authorization 
Request docket. 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 makes available an electronic copy of this Notice via the 
Internet on the Office of Transportation and Air Quality (OTAQ) 
homepage (http://www.epa.gov/OTAQ). Users can find this document by 
accessing the OTAQ homepage and looking at the path entitled ``Federal 
Register Notices.'' This service is free of charge, except any cost you 
already incur for Internet connectivity. Users can also get the 
official Federal Register version of the Notice on the day of 
publication on the primary Web site: (http://www.epa.gov/docs/fedrgstr/EPA-AIR) Please note that due to differences between the software used 
to develop the documents and the software into which the documents may 
be downloaded, changes in format, page length, etc., may occur.

FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Attorney-Advisor, 
Office of Transportation and Air Quality, (6403J), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 
(U.S. mail), 1310 L Street, NW., Washington, DC 20005 (courier mail). 
Telephone: (202) 343-9258, Fax: (202) 343-2804, E-Mail: 
<a href="/cdn-cgi/l/email-protection#2d4942544148035f424f485f596d485d4c034a425b"><span class="__cf_email__" data-cfemail="7e1a1107121b500c111c1b0c0a3e1b0e1f50191108">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

A. Nonroad Authorizations

    Section 209(e)(1) of the Act addresses the permanent preemption of 
any State, or political subdivision thereof, from adopting or 
attempting to enforce any standard or other requirement relating to the 
control of emissions for certain new nonroad engines or vehicles.\1\ 
Section 209(e)(2) of the Act requires the Administrator, after notice 
and opportunity for public hearing, to grant California authorization 
to enforce state standards for new nonroad engines or vehicles which 
are not listed under section 209(e)(1), subject to certain 
restrictions. On July 20, 1994, EPA promulgated a regulation that sets 
forth, among other things, the criteria, as found in section 209(e)(2), 
by which EPA must consider any California authorization requests for 
new nonroad engines or vehicle emission standards (section 209(e) 
rules).\2\ This regulation, previously codified at 40 CFR Part 85, 
Subpart Q, and, effective December 8, 2008, codified at 40 CFR Part 
1074, provides:
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    \1\ Section 209(e)(1) of the Act provides:
    No State or any political subdivision thereof shall adopt or 
attempt to enforce any standard or other requirement relating to the 
control of emissions from either of the following new nonroad 
engines or nonroad vehicles subject to regulation under this Act--
    (A) New engines which are used in construction equipment or 
vehicles or used in farm equipment or vehicles and which are smaller 
than 175 horsepower.
    (B) New locomotives or new engines used in locomotives. 
Subsection (b) shall not apply for purposes of this paragraph.
    \2\ See 59 FR 36969 (July 20, 1994), and regulations set forth 
therein, 40 CFR Part 85, Subpart Q, Sec. Sec.  85.1601-85.1606. EPA 
recently moved these regulations, without changing their substance 
to 40 CFR Part 1074. See 73 FR 59033, 59279 (October 8, 2008).

    (a) The Administrator shall grant the authorization if 
California determines that its standards will be, in the aggregate, 
at least as protective of public health and welfare as applicable 
Federal standards.
    (b) The authorization shall not be granted if the Administrator 
finds that:
    (1) The determination of California is arbitrary and capricious;
    (2) California does not need such California standards to meet 
compelling and extraordinary conditions; or
    (3) California standards and accompanying enforcement procedures 
are not consistent with section 209.

    As stated in the preamble to the section 209(e) rule, EPA has 
interpreted the requirement regarding whether ``California standards 
and accompanying enforcement procedures are not consistent with section 
209'' to mean that California standards and accompanying enforcement 
procedures must 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 motor vehicle waivers.\3\ 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. Secondly, California's nonroad standards and enforcement 
procedures must be consistent with section 209(e)(1), which identifies 
the categories permanently preempted from state regulation.\4\ 
California's nonroad standards and enforcement procedures would be 
considered inconsistent with section 209 if they applied to the 
categories of engines or vehicles identified and preempted from State 
regulation in section 209(e)(1).
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    \3\ See 59 FR 36969, 36983 (July 20, 1994).
    \4\ Section 209(e)(1) of the Act has been implemented See 40 CFR 
Part 85, Subpart Q, Sec. Sec.  85.1602, 85.1603 and, effective 
December 8, 2008, 40 CFR Part 1074, Sec. Sec.  1074.10, 1074.12.
    Sec.  1074.10 provides in applicable part:
    (a) States are preempted from adopting or enforcing standards or 
other requirements relating to the control of emissions from new 
engines smaller than 175 horsepower that are primarily used in farm 
or construction equipment or vehicles, as defined in this part. For 
equipment that is used in applications in addition to farming or 
construction activities, if the equipment is primarily used as farm 
and/or construction equipment or vehicles (as defined in this part), 
it is considered farm or construction equipment or vehicles.
    Sec.  1074.5 provides definitions of terms used in Sec.  1074.10 
and states in applicable part:
    Construction equipment or vehicle means any internal combustion 
engine-powered machine primarily used in construction and located on 
commercial construction sites.
    Farm Equipment or Vehicle means any internal combustion engine-
powered machine primarily used in the commercial production and/or 
commercial harvesting of food, fiber, wood, or commercial organic 
products or for the processing of such products for further use on 
the farm.
    Primarily used means used 51 percent or more.
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    Finally, because California's nonroad standards and enforcement 
procedures must be consistent with section 209(b)(1)(C), EPA will 
review nonroad authorization requests under the same ``consistency'' 
criteria that are applied to motor vehicle waiver requests. Under 
section 209(b)(1)(C), the Administrator shall not grant California a 
motor vehicle waiver if he finds that California ``standards and 
accompanying enforcement procedures are not consistent with section 
202(a)'' of the

[[Page 3032]]

Act. Previous decisions granting waivers of Federal preemption for 
motor vehicles have stated that State standards are inconsistent with 
section 202(a) if there is inadequate lead time to permit the 
development of the necessary technology giving appropriate 
consideration to the cost of compliance within that time period or if 
the Federal and State test procedures impose inconsistent certification 
requirements.\5\
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    \5\ To be consistent, the California certification procedures 
need not be identical to the Federal certification procedures. 
California procedures would be inconsistent, however, if 
manufacturers would be unable to meet both the state and the Federal 
requirement with the same test vehicle in the course of the same 
test. See, e.g., 43 FR 32182 (July 25, 1978).
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    With regard to enforcement procedures accompanying standards, EPA 
must grant the requested authorization unless it finds that these 
procedures may cause the California standards, in the aggregate, to be 
less protective of public health and welfare than the applicable 
Federal standards promulgated pursuant to section 213(a), or unless the 
Federal and California certification test procedures are 
inconsistent.\6\
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    \6\ See, e.g., Motor and Equipment Manufacturers Association, 
Inc. v. EPA, 627 F.2d 1095, 1111-14 (D.C. Cir. 1979), cert. denied, 
446 U.S. 952 (1980) (MEMA I); 43 FR 25729 (June 14, 1978). While 
inconsistency with section 202(a) includes technological 
feasibility, lead time, and cost, these aspects are typically 
relevant only with regard to standards. The aspect of consistency 
with 202(a) which is of primary applicability to enforcement 
procedures (especially test procedures) is test procedure 
consistency.
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    Once California has received an authorization for its standards and 
enforcement procedures for a certain group or class of nonroad 
equipment engines or vehicles, it may adopt other conditions precedent 
to the initial retail sale, titling or registration of these engines or 
vehicles without the necessity of receiving an additional 
authorization.\7\
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    \7\ See 43 FR 36679, 36680 (August 18, 1978).
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    If California acts to amend a previously authorized standard or 
accompanying enforcement procedure, the amendment 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 consistency with section 209 of 
the Act, and raises no new issues affecting EPA's previous 
authorization determination.\8\
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    \8\ Decision Document, Dockets A-2000-05 to 08, entry V-B-1, p. 
10.
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B. CARB's Authorization Request

    CARB, by letter dated March 28, 2005, requested that EPA grant 
California an authorization to adopt and enforce new regulations which 
establish in-use performance standards for diesel-fueled TRUs and TRU 
generator sets which operate in California, and facilities where TRUs 
operate. The TRU regulations are contained in an Airborne Toxic Control 
Measure (ATCM) adopted by CARB to reduce the general public's exposure 
to diesel particulate matter (PM), other toxic airborne contaminants 
(TACs) and air pollutants generated by TRUs and reduce near source risk 
at facilities where TRUs congregate. TRUs are refrigeration systems 
powered by internal combustion engines (almost always diesel-powered) 
which control the environment of temperature-sensitive products 
(perishable food and commodities) that are transported in semi-trailer 
vans, truck vans, ``reefer' railcars or shipping containers. The 
engines in TRUs do not propel the vehicle, but are used strictly to 
power the refrigeration system. TRU generator sets are designed and 
used to provide electric power to electrically driven refrigeration 
units of any kind. These TRU engines are nonroad engines; they do not 
propel the vehicle, but are used strictly to power the refrigeration 
system. TRU engines vary in horsepower generally from 7 hp to 36 hp, 
with the most common size being 35 hp.\9\
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    \9\ CARB TRU Authorization Request, Initial Statement of 
Reasons, Docket Entry OAR-2005-0123-0005, p. E-2.
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    Owners/operators of TRUs that operate in California must comply 
with the in-use performance standards; this applies to TRUs registered 
in California and outside of California, even if the in-California use 
is minimal. Most of the engines used in TRUs are already subject to 
Federal and California emission standards as new engines. New TRU 
engines less than 25 hp became subject to CARB standards in 1995 and 
EPA standards in 2000, and engines equal to or greater than 25 hp but 
less than 50 hp became subject to EPA standards in 1999 and to CARB 
standards in 2000.
    These new CARB regulations will affect in-use TRU engines by 
requiring the in-use TRU engines to meet specific performance standards 
that vary by HP range, and have two levels of stringency that are 
phased in over time--the Low Emission TRU (LETRU) Standards, beginning 
in 2008, and the Ultra-Low Emission TRU (ULETRU) Performance Standard 
beginning in 2010. The ATCM requires owners of TRUs to meet more 
stringent performance standards at 7-year intervals until the TRU meets 
the Ultra-Low emission performance standards, and the timing depends on 
the original Model Year of the engine. The TRU in-use standards 
correlate to the EPA Tier 4 Nonroad CI standards; the LETRU standards 
are the EPA Interim standards and the ULETRU standards are the EPA 
long-term standards.
    The TRU regulations offer several ways that owners/operators can 
comply. The owner/operator may:
    (1) Elect to show that the existing TRU is equipped with an engine 
that meets the EPA Tier IV certification standard for new non-road 
engines;
    (2) Repower the TRU system by replacing the existing TRU engine 
with an engine that meets the EPA Tier IV standard for new engines;
    (3) Replace an existing TRU with a newer TRU that is equipped with 
an engine that meets the EPA tier IV certificate standard for new 
engines;
    (4) Retrofit an existing TRU engine using a CARB approved verified 
diesel emission control strategy (VDECS);
    (5) Use an Alternative Technology approved by CARB.\10\
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    \10\ CARB identifies these ``Alternative technologies'' as 
including but not limited to the use of electric standby, cryogenic 
temperature control systems, alternative fuel, alternative diesel 
fuel, fuel cell power, or any other system approved by the CARB 
Executive Officer to not emit diesel PM or increase public health 
risk while at a facility. Alternative technologies only qualify 
toward compliance with the ULETRU in-use performance standard 
requirement if they eliminate diesel operation at facilities. CARB 
TRU Authorization Request, Initial Statement of Reasons, Docket 
Entry OAR-2005-0123-0005, p. VII-7.
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    Owners/Operators of TRU engines 25 hp and over can choose any of 
the compliance options listed above. Owners/Operators of TRU engines 
under 25 hp will need to choose either the retrofit option, or the 
alternative technology option to meet the ULETRU requirement. This is 
because currently there is no Tier-4 aligned (i.e. after treatment-
forcing) EPA standard for engines under 25 hp, so there is no Tier-4 
aligned engine certification compliance option available to meet the 
ULETRU in-use standard.\11\
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    \11\ CARB Request Letter and Support Document, Docket Entry OAR-
2005-0123-0002, p. 6.
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    As required by the Act, EPA offered the opportunity for a public 
hearing and requested public comments on these new standards by 
publication of a Federal Register notice to such effect on November 21, 
2005.\12\ EPA received a request for a hearing from the American 
Trucking Association, and from the

[[Page 3033]]

Truck Rental and Leasing Association,\13\ and a hearing was held on 
January 23, 2006.\14\ In addition, EPA received written comments for 
the Docket of this proceeding from several commenters, including 
additional submissions from CARB and some of the parties who testified 
at the public hearing, submissions from the Owner-Operators Independent 
Drivers Association, the Truckload Carriers Association, the California 
Trucking Association, the Pacific Merchant Shipping Association, and 
the Agricultural and Food Transporters Conference of American Trucking 
Associations, and a supplemental submission from CARB responding to 
matters raised by some industry parties in their written comments.\15\ 
Accordingly, EPA has made this authorization decision based on the 
information submitted by CARB in its requests, and the information 
presented to the Agency at the public hearing and in the comments 
received after the hearing.
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    \12\ 70 FR 70075 (November 21, 2005), Docket Entry OAR-2005-
0123-0001.
    \13\ Letter from Glenn P. Kedzie, American Trucking Association 
to Robert M. Doyle, USEPA, dated January 27, 2005, Docket Entry 
2005-0123-0014, and letter from Thomas James, Truck Rental and 
Leasing Association to Robert M. Doyle, USEPA, dated December 1, 
2005, Docket entry OAR-2005-0123-0015.
    \14\ EPA received testimony from: Michael Terris, Anthony 
Andreoni and Rod Hill, California Air Resources Board; Robert 
Digges, American Trucking Association; Corey England, C.R. England 
Co.; James Lyons, Sierra Research; Thomas James, Truck Rental and 
leasing Association, Andrew Stopka, National Lease Company; Thomas 
Richichi, Beveridge & Diamond Law Firm, on behalf of the American 
Trucking Association, and John Kaburick, Earl L. Henderson Trucking 
Company and on behalf of the Truckload Carriers Association. Written 
statements presented at this hearing and the hearing transcript 
appear in the Docket as Docket Entries OAR-2005-0123-0013 and OAR-
2005-0123-0017 through OAR-2005-0123-0023.
    \15\ These comments can be found in the Docket as Docket entries 
OAR-2005-0123-0024 through OAR-2005-0123-0031.
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C. Authorization Decision

    EPA received hearing testimony and written comments from industry 
parties who opposed the CARB request for authorization request on 
various grounds. After review of the information submitted by CARB and 
other parties to the record of this Docket, however, EPA finds that 
those opposing the authorization request have not met the burden of 
demonstrating that California's regulations do not satisfy the 
statutory criteria of section 209(e). For this reason, EPA is granting 
California authorization to enforce its TRU ATCM regulations. A full 
explanation of EPA's decision, including our review of comments 
received, is contained in our Decision Document, which may be obtained 
as explained above in the ``Addresses'' section of this Notice.
    My decision will affect not only persons in California but also 
persons outside the State who would need to comply with California's 
TRU ATCM regulations to enter California with such engines. For this 
reason, I hereby determine and find that this is a final action of 
national applicability.
    Under 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 
March 17, 2009. Under section 307(b)(2) of the Act, judicial review of 
this final action may not be obtained in subsequent enforcement 
proceedings.
    As with past authorization 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.
    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).
    Finally, the Administrator has delegated the authority to make 
determinations regarding authorizations under section 209(e) of the Act 
to the Assistant Administrator for Air and Radiation.

    Dated: January 9, 2009.
Robert J. Meyers,
Principal Deputy Assistant Administrator for Air and Radiation.
 [FR Doc. E9-907 Filed 1-15-09; 8:45 am]
BILLING CODE 6560-50-P


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