California State Nonroad Engine Pollution Control Standards; Transport Refrigeration Units; Request for Authorization; Opportunity for Public Hearing and Comment

Christopher Grundler
Environmental Protection Agency
January 4, 2013

[Federal Register Volume 78, Number 3 (Friday, January 4, 2013)]
[Notices]
[Pages 721-724]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31720]


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ENVIRONMENTAL PROTECTION AGENCY


California State Nonroad Engine Pollution Control Standards; 
Transport Refrigeration Units; Request for Authorization; Opportunity 
for Public Hearing and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted amendments to California's ``Airborne Toxic Control 
Measure for In-Use Diesel-Fueled Transport Refrigeration Units (TRU) 
and TRU Generator Sets and Facilities Where TRUs Operate.'' CARB has 
asked that

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EPA confirm that the TRU amendments either fall within the scope of the 
authorization EPA granted on January 9, 2009, pursuant to section 
209(e) of the Clean Air Act, or are not subject to Clean Air Act 
preemption. This notice announces that EPA has tentatively scheduled a 
public hearing to consider California's TRU amendments, and that EPA is 
now accepting written comment on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on January 30, 2013, at 10:00 a.m. ET. EPA will hold a hearing 
only if any party notifies EPA by January 17, 2013, expressing interest 
in presenting the agency with oral testimony. Parties wishing to 
present oral testimony at the public hearing should provide written 
notice to Kristien Knapp at the email address noted below. If EPA 
receives a request for a public hearing, that hearing will be held at 
1310 L Street NW., Washington, DC 20005. If EPA does not receive a 
request for a public hearing, then EPA will not hold a hearing, and 
instead consider CARB's request based on written submissions to the 
docket. Any party may submit written comments until March 1, 2013.
    By January 25, 2013, any person who plans to attend the hearing may 
call Kristien Knapp at (202) 343-9949, to learn if a hearing will be 
held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2012-0741, by one of the following methods:
     On-Line at http://www.regulations.gov: Follow the On-Line 
Instructions for Submitting Comments.
     Email: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2012-0741, U.S. Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Avenue NW., Washington, DC 20460. Please include a total 
of two copies.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    On-Line Instructions for Submitting Comments: Direct your comments 
to Docket ID No. EPA-HQ-OAR-2012-0741. EPA's policy is that all 
comments we receive will be included in the public docket without 
change and may be made available online at http://www.regulations.gov, 
including any personal information provided, unless the comment 
includes information claimed to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Do not submit information that you consider to be CBI or otherwise 
protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through http://www.regulations.gov, your 
email address will automatically be captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    EPA will make available for public inspection materials submitted 
by CARB, written comments received from any interested parties, and any 
testimony given at the public hearing. Materials relevant to this 
proceeding are contained in the Air and Radiation Docket and 
Information Center, maintained in Docket ID No. EPA-HQ-OAR-2012-0741. 
Publicly available docket materials are available either electronically 
through http://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 
work 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 http://www.regulations.gov Web 
site, enter EPA-HQ-OAR-2012-0741, 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 also maintains a Web 
page that contains general information on its review of California 
waiver requests. Included on that page are links to prior waiver and 
authorization Federal Register notices. 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) 343-2804. 
Email: knapp.kristien@epa.gov.

SUPPLEMENTARY INFORMATION:

I. California's TRU Regulations

    By letter dated May 13, 2011, CARB submitted to EPA its request 
pursuant to section 209(e) of the Clean Air Act (``CAA'' or ``the 
Act''), regarding its ``Airborne Toxic Control Measure for In-Use 
Diesel-Fueled Transport Refrigeration Units (TRU) and TRU Generator 
Sets and Facilities Where TRUs Operate'' (hereinafter ``CARB's TRU 
Amendments'').\1\ CARB's TRU Amendments accomplish three main 
objectives: (1) Relax the TRU in-use compliance requirements for all 
2003 and some 2004 model year TRUs and TRU generator sets (collectively 
referred to as ``TRUs''), (2) clarify the operational useful life of 
TRU flexibility engines, and (3) establish new reporting and 
recordkeeping requirements for TRU original equipment manufacturers 
(OEMs). CARB formally adopted the TRU Amendments on February 4, 
2011,\2\ and they became operative under California law on March 7, 
2011. The TRU amendments are codified at title

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13, California Code of Regulations, section 2477.\3\
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    \1\ California Air Resources Board (``CARB''), ``Request for 
Authorization,'' May 13, 2011.
    \2\ CARB, ``Resolution 10-39,'' November 18, 2010; CARB, 
``Executive Order R-11-001,'' February 2, 2011.
    \3\ CARB, ``Final Regulation Order for title 13, California Code 
of Regulations, section 2477.''
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    EPA granted an authorization for California's initial set of TRU 
regulations on January 9, 2009, notice of which was published in the 
Federal Register on January 16, 2009.\4\ CARB seeks EPA's confirmation 
that the TRU Amendments either fall within the scope of that previous 
authorization, pursuant to section 209(e) of the Clean Air Act, or are 
not subject to Clean Air Act preemption.
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    \4\ 74 FR 3030 (January 16, 2009).
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II. Clean Air Act Nonroad Engine and Vehicle 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 certain 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.\5\ EPA later revised these regulations in 1997.\6\ 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).\7\
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    \5\ 59 FR 36969 (July 20, 1994).
    \6\ 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.
    \7\ 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.
    If California amends regulations that were previously granted an 
authorization, EPA can confirm that the amended regulations are within 
the scope of the previously granted authorization. Such within-the-
scope amendments are permissible without a full authorization review if 
three conditions are met. First, the amended regulations must not 
undermine California's determination that its standards, in the 
aggregate, are as protective of public health and welfare as applicable 
federal standards. Second, the amended regulations must not affect 
consistency with section 202(a) of the Act. Third, the amended 
regulations must not raise any ``new issues'' affecting EPA's prior 
authorizations.

III. EPA's Request for Comments

    As stated above, EPA is offering the opportunity for a public 
hearing, and requesting written comment on issues relevant to a within-
the-scope analysis. Specifically, we request comment on: whether 
California's TRU Amendments (1) Undermine California's previous 
determination that its standards, in the aggregate, are at least as 
protective of public health and welfare as comparable Federal 
standards, (2) affect the consistency of California's requirements with 
section 209 of the Act, and (3) raise any other new issues affecting 
EPA's previous waiver or authorization determinations.
    Should any party believe that the TRU amendments are not within the 
scope of the previous TRU authorization, EPA also requests comment on 
whether the California TRU Amendments meet the criteria for a full 
authorization. Specifically, we request 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.

IV. Procedures for Public Participation

    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 1, 2013. Upon expiration of the comment period, 
the Administrator will render a decision on CARB's request based on the 
record from the public hearing, if any, all relevant written 
submissions, and other information that she deems pertinent. All 
information will be available for inspection at the EPA Air Docket No. 
EPA-HQ-OAR-2012-0741.
    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'' 
(``CBI''). If a person making comments wants EPA to base its decision 
on a submission labeled as CBI, then a non-confidential version of the 
document that summarizes the key data or information should be 
submitted to the public docket. To ensure that

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proprietary information is not inadvertently placed in the public 
docket, submissions containing such information should be sent directly 
to the contact person listed above and not to the public docket. 
Information covered by a claim of confidentiality will be disclosed by 
EPA only to the extent allowed, and according to the procedures set 
forth in 40 CFR part 2. If no claim of confidentiality accompanies the 
submission when EPA receives it, EPA will make it available to the 
public without further notice to the person making comments.

    Dated: December 26, 2012.
Christopher Grundler,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2012-31720 Filed 1-3-13; 8:45 am]
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