[Federal Register Volume 60, Number 30 (Tuesday, February 14, 1995)]
[Notices]
[Pages 8381-8384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3608]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5154-9]


California State Nonroad Engine and Equipment Pollution Control 
Standards; Opportunity for Public Hearing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of an Opportunity for Public Hearing and Public Comment.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted regulations for exhaust emission standards and test 
procedures for 1996 and later model heavy-duty off-road diesel cycle 
engines 175 horsepower or greater. CARB has requested that EPA 
authorize CARB to enforce regulations pursuant to section 209(e) of the 
Clean Air Act (Act), as amended, 42 U.S.C. 7543. This notice announces 
that EPA has tentatively scheduled a public hearing to consider CARB's 
request and to hear comments from interested parties regarding CARB's 
request for EPA's authorization and CARB's determination that its 
regulations, as noted above, comply with the criteria set forth in 
section 209(e). In addition, EPA is requesting that interested parties 
submit written comments. Any party desiring to present oral testimony 
for the record at the public hearing, instead of, or in addition to, 
written comments, must notify EPA by February 21, 1995. If no party 
notifies EPA that it wishes to [[Page 8382]] testify on the nonroad 
emission amendments, then no hearing will be held and EPA will consider 
CARB's request based on written submissions to the record.

DATES: EPA has tentatively scheduled a public hearing for March 1, 1995 
beginning at 9:00 a.m., if any party notifies EPA by February 21, 1995 
that it wishes to present oral testimony regarding CARB's request. Any 
party may submit written comments regarding CARB's requests by March 
31, 1995. After February 21, 1995, any person who plans to attend the 
hearing may call Janice Raburn of EPA's Manufacturers Operations 
Division at (202) 233-9294 to determine if a hearing will be held.

ADDRESSES: If a request is received, EPA will hold the public hearing 
announced in this notice at the Channel Inn (Captain's Room), 650 Water 
Street SW., Washington, DC 20024. Parties wishing to present oral 
testimony at the public hearing should notify in writing, and if 
possible, submit ten (10) copies of the planned testimony to: Charles 
N. Freed, Director, Manufacturers Operations Division (6405J), U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460. In addition, any written comments regarding the waiver request 
should be sent, in duplicate, to Charles N. Freed at the same address 
to the attention of Docket A-94-44. Copies of material relevant to the 
waiver request (Docket A-94-44) will be available for public inspection 
during normal working hours of 8 a.m. to 5:30 p.m. Monday through 
Friday, including all non-government holidays, at the U.S. 
Environmental Protection Agency, Air and Radiation Docket and 
Information Center, 401 M Street SW., Washington, DC 20460. Telephone: 
(202) 260-7548. FAX Number: (202) 260-4400.

FOR FURTHER INFORMATION CONTACT: Janice Raburn, Attorney/Advisor, 
Manufacturers Operations Division (6405J), U.S. Environmental 
Protection Agency, Washington, DC 20460. Telephone: (202) 233-9294.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 209(e)(1) of the Act as amended, 42 U.S.C. 7543(e)(1), 
provides in part: ``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, and (B) new locomotives or new engines used in 
locomotives.''
    For those new pieces of equipment or new vehicles other than those 
a State is not permanently preempted from regulating under section 
209(e)(1), the State of California may promulgate standards regulating 
such new equipment or new vehicles provided California complies with 
Section 209(e)(2). Section 209(e)(2) provides in part that the 
Administrator shall, after notice and opportunity for public hearing, 
authorize California to adopt and enforce standards and other 
requirements relating to the control of emissions from such vehicles or 
engines ``[i]f California determines that California standards will be, 
in the aggregate, at least as protective of public health and welfare 
as applicable Federal standards. No such authorization shall be granted 
if the Administrator finds that: (i) The determination of California is 
arbitrary and capricious, (ii) California does not need such California 
standards to meet compelling and extraordinary conditions, or (iii) 
California standards and accompanying enforcement procedures are not 
consistent with this section.''
    EPA interpreted the preceding criterion regarding consistency in 
the final regulation it issued to implement section 209(e) entitled 
``Air Pollution Control; Preemption of State Regulation for Nonroad 
Engine and Vehicle Standards'' (section 209(e) rule). This rule sets 
forth several definitions and the authorization criteria EPA must 
consider before granting California an authorization to enforce any of 
its nonroad engine standards.<SUP>1 As described in the section 209(e) 
rule, in order to be deemed ``consistent with this section'', 
California standards and enforcement procedures must be consistent with 
section 209. In order to be consistent with section 209, California 
standards and enforcement procedures must reflect the requirements of 
sections 209(a), 209(e)(1), and 209(b). Section 209(a) prohibits states 
from adopting or enforcing emission standards for new motor vehicles or 
new motor vehicle engines. Section 209(e)(1) identifies the categories 
preempted from state regulation. As stated above, the preempted 
categories are (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, and (b) new locomotives or new engines used in 
locomotives. The section 209(e) rule includes definitions for farm 
equipment or vehicles and construction equipment or vehicles. 
California's proposed regulations would be considered inconsistent with 
section 209 if they applied to these permanently preempted categories. 
Additionally, the section 209(e) rule requires EPA to review nonroad 
authorization requests under the same ``consistency'' criterion that it 
reviews motor vehicle waiver requests. Under 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. California's nonroad 
standards would not be consistent with section 202(a) if there were 
inadequate lead time to permit the development of technology necessary 
to meet those standards, giving appropriate consideration to the cost 
of compliance within that time frame. Additionally, California's 
nonroad accompanying enforcement procedures would be inconsistent with 
section 202(a) if the Federal and California test procedures were 
inconsistent, that is, manufacturers would be unable to meet both the 
State and Federal test requirements with one test vehicle or engine.

    \1\See 59 FR 36969, July 20, 1994 (to be codified at 40 CFR Part 
85, Subpart Q, Secs. 85.1601-85.1606). This final rule titled ``Air 
Pollution Control; Preemption of State Regulation for Nonroad Engine 
and Vehicle Standards'' was proposed at 56 FR 45866, Sept. 6, 1991.
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    Once California has been granted an authorization, under section 
209(e)(2), for its standards and accompanying enforcement procedures 
for a category or categories of equipment, it may adopt other 
conditions precedent to initial retail sale, titling or registration of 
the subject category or categories of equipment without the necessity 
of receiving further EPA authorization.
    By letter dated August 24, 1993, CARB submitted to EPA a request 
that EPA authorize California to adopt regulations for 1996 and later 
model heavy-duty off-road diesel cycle engines. By letter dated July 
26, 1994, EPA informed CARB that in light of two final rules issued by 
EPA, it would be necessary for CARB to revise its waiver request before 
EPA could begin the waiver process. First, EPA had not been able to 
process the nonroad waiver request until it issued a final section 
209(e) rule (discussed above). In addition, EPA issued a rulemaking 
setting federal nonroad standards under section 213 of the Act.<SUP>2 
One of the waiver requirements under section 209 is that CARB make a 
determination that its standards and test procedures are, in 
[[Page 8383]] the aggregate, at least as protective of public health 
and welfare as applicable federal standards. At the time CARB made the 
analysis for its August 23, 1993, waiver request, EPA had proposed but 
not finalized federal standards for nonroad engines at or above 37kW. 
Thus, CARB made a determination based upon a comparison between its 
standards and the standards EPA was proposing at that time. EPA made a 
few changes to its final rule, thus making it necessary for CARB to 
revise its finding and determination so as to have compared its 
standards with the final federal standards. By letter dated August 17, 
1994, CARB submitted to EPA a supplement to its request of August 24, 
1993, with the updated comparison that EPA requested.

    \2\59 FR 31306 (June 17, 1994).
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    California's regulations apply to all new heavy-duty off-road 
diesel cycle engines, 175 horsepower or greater, including alternate-
fueled engines, produced on or after January 1, 1996. These 
regulations:
    a. Establish tier 1 smoke and exhaust emission standards for 
engines 175 to 750 horsepower produced on or after January 1, 1996.
    b. Establish smoke and exhaust emission standards for engines 
greater than 750 horsepower produced on or after January 1, 2000. 
(These engines are low sales volume, so longer development time is 
allowed.)
    c. Establish tier 2 smoke and exhaust emission standards for 
engines 175 to 750 horsepower produced on or after January 1, 2001.
    d. Require that crankcase emissions be controlled for 1996 and 
later alternate-fueled engines derived from diesel cycle engines and 
naturally aspirated diesel-fueled engines used in heavy-duty off-road 
applications.
    e. Require that commencing in the year 2000, replacement engines 
for pre-1996 equipment comply with the 1996 emission regulations. 
Replacement engines for 1996 and later equipment are required to comply 
with the emissions standards applicable to the original engine.
    f. Establish an 8-mode steady state emissions test for 
certification testing.
    g. Require certification compliance testing, quality audit assembly 
line testing, and new engine compliance testing.
    h. Establish a labeling requirement.
    i. Require manufacturers to provide a five year or 3000 hour 
emissions warranty.
    EPA issued a final rule (referenced above) for nonroad engines of 
similar horsepower on June 17, 1994.<SUP>3 EPA set standards for 
engines at or greater than 130 to 560 kW (175 horsepower to 750 
horsepower) identical to the CARB standards and effective January 1, 
1996, the same date as the CARB standards. Also, EPA set standards for 
engines greater than 560 kW (750 horsepower) identical to CARB 
standards and effective January 1, 2000, the same date as the CARB 
standards. EPA did not promulgate tier 2 standards for the 175--750 
horsepower category, so beginning in 2001 CARB standards would be more 
stringent than EPA standards.

    \3\59 FR 31306 (June 17, 1994).
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    California states in its August 17, 1994 letter that it has 
determined that its standards and test procedures for 1996 and later 
model heavy-duty off-road diesel cycle engines would not cause 
California emission standards, in the aggregate, to be less protective 
of public health and welfare as the applicable Federal standards. 
Further, California references its August 24, 1993 letter, which 
explained why compelling and extraordinary conditions warrant the need 
in California for separate standards for heavy-duty off-road diesel 
cycle engines. Finally, California states that its standards and test 
procedures are consistent with section 209 of the Act. California's 
request will be considered according to the criteria for an 
authorization request as set forth in the section 209(e) 
regulation.<SUP>4 Any party wishing to present testimony at the hearing 
or by written comment should address, as explained in the section 
209(e) rule, the following issues:

    \4\``Air Pollution Control; Preemption of State Regulation for 
Nonroad Engine and Vehicle Standards'' at 59 FR 36969, July 20, 1994 
(to be codified at 40 CFR Part 85, Subpart Q, Secs. 85.1601-
85.1606).
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    (1) Whether California's determination that its standards are at 
least as protective of public health and welfare as applicable Federal 
standards is arbitrary and capricious;
    (2) Whether California needs separate standards to meet compelling 
and extraordinary conditions; and,
    (3) Whether California's standards and accompanying enforcement 
procedures are consistent with (i) section 209(a), which prohibits 
states from adopting or enforcing emission standards for new motor 
vehicles or engines, (ii) section 209(e)(1), which identifies the 
categories preempted from state regulation, and (iii) section 202(a) of 
the Act.

II. Public Participation

    If the scheduled hearing takes place, it will provide an 
opportunity for interested parties to state orally their views or 
arguments or to provide pertinent information regarding the issues as 
noted above and further explained in the section 209(e) rule. Any party 
desiring to make an oral statement on the record should file ten (10) 
copies of its proposed testimony and other relevant material along with 
its request for a hearing with the Director of EPA's Manufacturers 
Operations Division at the Director's address listed above not later 
than February 21, 1995. In addition, the party should submit 50 copies, 
if possible, of the proposed statement to the presiding officer at the 
time of the hearing.
    In recognition that a public hearing is designed to give interested 
parties an opportunity to participate in this proceeding, there are no 
adverse parties as such. Statements by participants will not be subject 
to cross-examination by other participants without special approval by 
the presiding officer. The presiding officer is authorized to strike 
from the record statements which he deems irrelevant or repetitious and 
to impose reasonable limits on the duration of the statement of any 
participant.
    If a hearing is held, the Agency will make a verbatim record of the 
proceedings. Interested parties may arrange with the reporter at the 
hearing to obtain a copy of the transcript at their own expense. 
Regardless of whether a public hearing is held, EPA will keep the 
record open until March 31, 1995.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest extent 
possible and label it as ``Confidential Business Information.'' To 
ensure that proprietary information is not inadvertently placed in the 
docket, submissions containing such information should be sent directly 
to the contact person listed above and not to the public docket. If a 
person making comments wants EPA to base its final decision in part on 
a submission labeled as confidential business information, then a non-
confidential version of the document which summarizes the key data or 
information should be placed in the public docket. Information covered 
by a claim of confidentiality will be disclosed by EPA only to the 
extent allowed by the procedures set forth in 40 CFR part 2. If no 
claim of confidentiality accompanies the submission when it is received 
by EPA, it may be made available to the public without further notice 
to the person making comments.

    [[Page 8384]] Dated: February 7, 1995.
Richard D. Wilson,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 95-3608 Filed 2-13-95; 8:45 am]
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