California State Nonroad Engine Pollution Control Standards; In-Use Diesel-Fueled Transport Refrigeration Units (TRUs) and TRU Generator Sets and Facilities Where TRUs Operate; Notice of Decision |
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Gina McCarthy
Environmental Protection Agency
19 January 2017
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Notices]
[Pages 6525-6532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01225]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2013-0024; FRL-9958-64-OAR]
California State Nonroad Engine Pollution Control Standards; In-
Use Diesel-Fueled Transport Refrigeration Units (TRUs) and TRU
Generator Sets and Facilities Where TRUs Operate; Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of decision.
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SUMMARY: The Environmental Protection Agency (``EPA'') is granting the
California Air Resources Board (``CARB'') request for authorization of
amendments to its Airborne Toxic Control Measure for In-Use Diesel-
Fueled Transport Refrigeration Units (``TRU'') and TRU Generator Sets
and Facilities Where TRUs Operate (together ``2011 TRU Amendments'').
EPA's decision also confirms that certain of the 2011 TRU amendments
are within the scope of prior EPA authorizations. The 2011 TRU
Amendments primarily provide owners of TRU engines with certain
flexibilities; clarify recordkeeping requirements for certain types of
TRU engines; establish requirements for businesses that arrange, hire,
contract, or dispatch the transport of goods in TRU-equipped trucks,
trailers, or containers; and address other issues that arose during the
initial implementation of the regulation. This decision is issued under
the authority of the Clean Air Act (``CAA'' or ``Act'').
DATES: Petitions for review must be filed by March 20, 2017.
ADDRESSES: EPA has established a docket for this Notice of Decision
under Docket ID EPA-HQ-OAR-2015-0224. All documents relied upon in
making this 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 from 8:30 a.m. to 4:30
p.m.; Monday through Friday, excluding legal 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 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-2015-0224 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 and authorization 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: David Dickinson, Attorney-Advisor,
Transportation and Climate Division, Office of Transportation and Air
Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave.
NW., (6405J), Washington, DC 20460. Telephone: (202) 343-9256. Fax:
(202) 343-2804. Email: dickinson.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
EPA granted an authorization for California's initial set of TRU
regulations on January 9, 2009.\1\ EPA also granted a within-the-scope
authorization for amendments to the TRU regulations, adopted in 2010,
on June 28, 2013.\2\ The TRU regulations 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 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 which control the environment of temperature-
sensitive products 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. These TRU engines are nonroad engines and vary in
horsepower (``hp'') generally from 7 hp to 36 hp.
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\1\ 74 FR 3030 (January 16, 2009).
\2\ 78 FR 38970 (June 28, 2013).
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By letter dated March 2, 2015, CARB submitted a request to EPA for
authorization of amendments to its TRU regulations \3\ pursuant to
section 209(e) of the CAA.\4\ The 2011 TRU Amendments were adopted by
CARB on October 21, 2011, and became operative state law on October 15,
2012.\5\ The 2011 TRU Amendments provide owners of 2001 through 2003
model year (MY) TRU engines that complied with applicable Low-Emission
TRU (``LETRU'') in-use performance standards by specified compliance
deadlines a one- or two-year extension from the more stringent Ultra-
Low Emission (``ULETRU'') in-use performance standards. The amendments
also clarify manual recordkeeping requirements for electric standby-
equipped TRUs and ultimately require automated electronic tracking
system requirements for such TRUs and establish requirements for
businesses that arrange, hire, contract, or dispatch the transport of
goods in TRU-equipped trucks, trailers or containers. A more
[[Page 6526]]
detailed description of the 2011 Amendments is presented below in the
context of which amendments CARB seeks within-the-scope confirmation
and those amendments for which CARB seeks a full authorization.
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\3\ 13 California Code of Regulations (CCR), sections 2111,
2112, Appendix A therein, 2139, 2147, 2440, 2441, 2442, 2443.1,
2443.2, 2443.3, 2444.1, 2444.2, 2445.1, 2445.2, 2447, 2474 and 2448.
\4\ ``Clean Air Act Sec. 209(e)(2) Authorization Support
Document submitted by the California Air Resources Board, March 2,
2015,'' at EPA-HQ-OAR-2015-0224-0002 (Authorization Support
Document).
\5\ Id., Attachment 13.
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A. California's Authorization Request
California requested EPA perform two types of review. First, CARB
requested an EPA determination that certain provisions of the 2011
amendments are within the scope of the prior authorizations, or in the
alternative, merit full authorization (``Within-the-Scope
Amendments''). The Within-the-Scope Amendments provide owners of 2003
and older MY TRUs an extension of the ULETRU compliance date if the
TRUs complied with the LETRU standard by specified dates. Such TRU
engines that are 2001 MY and older are given an extension to December
31, 2016 for the ULETRU deadline, 2002 MY TRUs are given a new deadline
of December 31, 2017, and 2003 MY TRUs are given a new deadline of
December 31, 2018. The Within-the-Scope Amendments also provide up to a
one-year extension of the compliance dates if owners demonstrate that
compliant technology is unavailable or is delayed due to financing,
delivery, or installation and provides other flexibilities based upon
certain requirements. In addition, the Within-the-Scope Amendments
provide a host of new or clarified exemptions including: (1)
Clarification that non-operational TRUs are generally exempt from
compliance with the performance standards, but are still prohibited
from being sold, rented or leased to a person that could reasonably be
expected to operate such TRUs in California; (2) a limited exemption
for TRU-equipped trucks and trailers used by mobile catering companies
to feed emergency responders, such as firefighters (such engines are
subject to registration and other requirements); (3) an exemption for
non-compliant, non-operational TRUs on refrigerated railcars that
travel through California based on CARB's Executive Officer approval
under certain contingencies; and (4) an exemption for railway carriers
from the owner/operator requirements for TRUs not owned by the railway
carrier. Lastly, the Within-the-Scope Amendments clarify that the in-
use performance standards and associated compliance deadlines are to be
based on the year the TRU unit itself was manufactured (including the
potential for a prior model year TRU engine to be installed in limited
circumstances), instead of basing the compliance deadline on the model
year of the TRU engine.\6\
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\6\ See CARB's Authorization Support Document. CARB's Within-
the-Scope Amendments also include those provisions referenced at
page 11 (allowance of California TRU dealers to acquire non-
compliant TRUs under certain conditions), pages 13-14 (clarification
on the prohibition of selling non-compliant TRUs), page 15
(allowance of the use of unique identification numbers instead of a
CARB identification number), and page 16 (clarification of the
registration requirements and consistency with current CARB
Equipment Registration (``ARBER'') system screens).
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Second, CARB requested full authorization for amendments that
revise standards or establish new requirements (``Full Authorization
Amendments''). These provisions include amendments that require new
replacement engines to meet more stringent requirements (based on the
new replacement engine's model year or effective model year) than the
original TRU engines. The Full Authorization Amendments also provide
that to the extent TRUs now may be repowered with rebuilt engines such
rebuilt engines must meet more stringent emission standards than the
standards of the original engine, and provided the engines are rebuilt
by engine rebuilders in compliance with federal and state engine
rebuilding requirements for off-road compression ignition engines.\7\
CARB's TRU regulations allow TRU owners to utilize hybrid electric,
hybrid cryogenic, and electric-standby (``E/S'') equipped TRUs as an
``Alternative technology'' compliance option, which requires such TRUs
to be operated in a manner that eliminates diesel engine operations at
the facilities where the TRUs operate. The Full Authorization
Amendments establish new recordkeeping requirements that will require
the application of hardware to monitor the engine hour usage of the
TRUs along with other automated monitoring, recordkeeping and reporting
requirements. In addition, the TRU regulations now cover business
entities that arrange, hire, contract for, or dispatch the transport of
perishable goods in TRU-equipped trucks, trailers, shipping containers,
or railcars. Lastly, the Full Authorization Amendments create new
disclosure requirements for TRU original equipment manufacturers that
are primarily designed to address engine emission labels on new
replacement engines and new flexibility engines, as well as disclosure
requirements for dealers and repair shops in order that the ARBER
registration information is supplied to the end-user.
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\7\ 40 CFR 89.130 and 1068.120 and Cal. Code Regs. Tit. 13.,
section 2423(l), respectively.
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B. 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.\8\ For all other nonroad
engines, states generally are preempted from adopting and enforcing
standards and other requirements relating to the control of emissions.
Section 209(e)(2), however, requires the Administrator, after notice
and opportunity for public hearing, to authorize California to adopt
and enforce standards and other requirements relating to the control of
emissions from such vehicles or engines if California determines that
California standards will be, in the aggregate, at least as protective
of public health and welfare as applicable Federal standards. However,
EPA shall not grant such authorization if it 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 [CAA section 209].\9\
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\8\ States are expressly preempted from adopting or attempting
to enforce any standard or other requirement relating to the control
of emissions from new nonroad engines which are used in construction
equipment or vehicles or used in farm equipment or vehicles and
which are smaller than 175 horsepower. Such express preemption under
section 209(e)(1) of the Act also applies to new locomotives or new
engines used in locomotives. CAA Sec. 209(e)(1), 42 U.S.C.
7543(e)(1)(A).
\9\ EPA's review of California regulations under section 209 is
not a broad review of the reasonableness of the regulations or its
compatibility with all other laws. Sections 209(b) and 209(e) of the
Clean Air Act limit EPA's authority to deny California requests for
waivers and authorizations to the three criteria listed therein. As
a result, EPA has consistently refrained from denying California's
requests for waivers and authorizations based on any other criteria.
In instances where the U.S. Court of Appeals has reviewed EPA
decisions declining to deny waiver requests based on criteria not
found in section 209(b), the Court has upheld and agreed with EPA's
determination. See Motor and Equipment Manufacturers Ass'n v.
Nichols, 142 F.3d 449, 462-63, 466-67 (D.C. Cir. 1998), Motor and
Equipment Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20
(D.C. Cir. 1979). See also 78 FR 58090, 58120 (September 20, 2013).
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On July 20, 1994, EPA promulgated a rule interpreting the three
criteria set forth in section 209(e)(2)(A) that EPA must consider
before granting any California authorization request for nonroad engine
or vehicle emission standards.\10\ EPA revised these
[[Page 6527]]
regulations in 1997.\11\ As stated in the preamble to the 1994 rule,
EPA historically has interpreted the consistency inquiry under the
third criterion, outlined above and set forth in section
209(e)(2)(A)(iii), 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) of the Act.\12\
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\10\ See ``Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20,
1994).
\11\ See ``Control of Air Pollution: Emission Standards for New
Nonroad Compression-Ignition Engines at or Above 37 Kilowatts;
Preemption of State Regulation for Nonroad Engine and Vehicle
Standards; Amendments to Rules,'' 62 FR 67733 (December 30, 1997).
The applicable regulations are now found in 40 CFR part 1074,
subpart B, section 1074.105.
\12\ 59 FR 36969 (July 20, 1994). EPA has interpreted
209(b)(1)(C) in the context of section 209(b) motor vehicle waivers.
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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 under section 209(b)(1)(C). That provision
provides that the Administrator shall not grant California a motor
vehicle waiver 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 will be found to be
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,\13\ or (2) the federal and state testing procedures impose
inconsistent certification requirements.\14\
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\13\ H. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967).
\14\ S. Rep. No. 403, 90th Cong., 1st Sess. 32 (1967).
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In light of the similar language in sections 209(b) and
209(e)(2)(A), EPA has reviewed California's requests for authorization
of nonroad vehicle or engine standards under section 209(e)(2)(A) using
the same principles that it has historically applied in reviewing
requests for waivers of preemption for new motor vehicle or new motor
vehicle engine standards under section 209(b).\15\ These principles
include, among other things, that EPA should limit its inquiry to the
three specific authorization criteria identified in section
209(e)(2)(A),\16\ and that EPA should give substantial deference to the
policy judgments California has made in adopting its regulations. In
previous waiver decisions, EPA has stated that Congress intended EPA's
review of California's decision-making be narrow. EPA has rejected
arguments that are not specified in the statute as grounds for denying
a waiver:
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\15\ See Engine Manufacturers Association v. EPA, 88 F.3d 1075,
1087 (D.C. Cir. 1996): ``. . . EPA was within the bounds of
permissible construction in analogizing Sec. 209(e) on nonroad
sources to Sec. 209(a) on motor vehicles.''
\16\ See EPA's Final 209(e) rulemaking at 59 FR 36969, 36983
(July 20, 1994).
The law makes it clear that the waiver requests cannot be denied
unless the specific findings designated in the statute can properly
be made. The issue of whether a proposed California requirement is
likely to result in only marginal improvement in California air
quality not commensurate with its costs or is otherwise an arguably
unwise exercise of regulatory power is not legally pertinent to my
decision under section 209, so long as the California requirement is
consistent with section 202(a) and is more stringent than applicable
Federal requirements in the sense that it may result in some further
reduction in air pollution in California.\17\
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\17\ ``Waiver of Application of Clean Air Act to California
State Standards,'' 36 FR 17458 (Aug. 31, 1971). Note that the more
stringent standard expressed here, in 1971, was superseded by the
1977 amendments to section 209, which established that California
must determine that its standards are, in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards. In the 1990 amendments to section 209, Congress
established section 209(e) and similar language in section
209(e)(1)(i) pertaining to California's nonroad emission standards
which California must determine to be, in the aggregate, at least as
protective of public health and welfare as applicable federal
standards.
This principle of narrow EPA review has been upheld by the U.S.
Court of Appeals for the District of Columbia Circuit.\18\ Thus, EPA's
consideration of all the evidence submitted concerning an authorization
decision is circumscribed by its relevance to those questions that may
be considered under section 209(e)(2)(A).
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\18\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
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C. Within-the-Scope Determinations
If California amends regulations that have been previously
authorized by EPA, California may ask EPA to determine that the
amendments are within the scope of the earlier authorization. A within-
the-scope determination for such amendments is permissible without a
full authorization review if three conditions are met. First, the
amended regulations must not undermine California's previous
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 209 of
the Act, following the same criteria discussed above in the context of
full authorizations. Third, the amended regulations must not raise any
new issues affecting EPA's prior waiver or authorization decisions.\19\
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\19\ See ``California State Motor Vehicle Pollution Control
Standards; Amendments Within the Scope of Previous Waiver of Federal
Preemption,'' 46 FR 36742 (July 15, 1981).
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D. Deference to California
In previous waiver decisions, EPA has recognized that the intent of
Congress in creating a limited review based on the section 209(b)(1)
criteria was to ensure that the federal government did not second-guess
state policy choices. As the agency explained in one prior waiver
decision:
It is worth noting * * * I would feel constrained to approve a
California approach to the problem which I might also feel unable to
adopt at the federal level in my own capacity as a regulator. The
whole approach of the Clean Air Act is to force the development of
new types of emission control technology where that is needed by
compelling the industry to ``catch up'' to some degree with newly
promulgated standards. Such an approach * * * may be attended with
costs, in the shape of reduced product offering, or price or fuel
economy penalties, and by risks that a wider number of vehicle
classes may not be able to complete their development work in time.
Since a balancing of these risks and costs against the potential
benefits from reduced emissions is a central policy decision for any
regulatory agency under the statutory scheme outlined above, I
believe I am required to give very substantial deference to
California's judgments on this score.\20\
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\20\ 40 FR 23102, 23103-23104 (May 28, 1975).
Similarly, EPA has stated that the text, structure, and history of
the California waiver provision clearly indicate both a congressional
intent and appropriate EPA practice of leaving the decision on
``ambiguous and controversial matters of public policy'' to
California's judgment.\21\ This interpretation is supported by relevant
discussion in the House Committee Report for the 1977 amendments to the
Clean Air Act.\22\ Congress had the opportunity through the 1977
amendments to restrict the preexisting waiver provision, but elected
instead to
[[Page 6528]]
expand California's flexibility to adopt a complete program of motor
vehicle emission controls. The report explains that the amendment is
intended to ratify and strengthen the preexisting California waiver
provision and to affirm the underlying intent of that provision, that
is, to afford California the broadest possible discretion in selecting
the best means to protect the health of its citizens and the public
welfare.\23\
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\21\ Id. at 23104; 58 FR 4166 (January 13, 1993).
\22\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th
Cong., 1st Sess. 301-302 (1977)).
\23\ Id.
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E. Burden and Standard of Proof
As the U.S. Court of Appeals for the D.C. Circuit has made clear in
MEMA I, opponents of a California waiver request bear the burden of
showing that the statutory criteria for a denial of the request have
been met:
[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.\24\
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\24\ MEMA I, 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.''' \25\ Therefore, the
Administrator's burden is to act ``reasonably.'' \26\
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\25\ Id. at 1126.
\26\ Id. at 1126.
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With regard to the standard of proof, the court in MEMA I explained
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.\27\
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\27\ Id. at 1122.
In that decision, the court considered the standards of proof under
section 209 for the two findings related to granting a waiver for an
``accompanying enforcement procedure.'' Those findings involve: (1)
Whether the enforcement procedures impact California's prior
protectiveness determination for the associated standards, and (2)
whether the procedures are consistent with section 202(a). The
principles set forth by the court, however, are similarly applicable to
an EPA review of a request for a waiver of preemption for a standard.
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.'' \28\
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\28\ Id.
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With regard to the protectiveness finding, the court upheld the
Administrator's position that, to deny a waiver, there must be ``clear
and compelling evidence'' to show that proposed enforcement procedures
undermine the protectiveness of California's standards.\29\ 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.\30\
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\29\ Id.
\30\ 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 what the standards of proof
would be under section 209 concerning a waiver request for
``standards,'' as compared to a waiver request for accompanying
enforcement 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.'' \31\
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\31\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
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F. EPA's Administrative Process in Consideration of California's
Request for Authorization of the 2011 TRU Amendments
The CAA directs EPA to offer an opportunity for public hearing on
authorization requests from California. On November 17, 2015, EPA
published a Federal Register notice announcing an opportunity for
written comment and offering a public hearing on California's request
for authorization of the 2011 TRU Amendments.\32\ The request for
comments specifically included, but was not limited to, the following
issues.
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\32\ 80 FR 71791 (November 17, 2015).
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First, EPA requested comment on whether the 2011 amendments for
which CARB requested a within-the-scope determination should be
considered under a within-the-scope analysis. We specifically requested
comment on whether the Within-the-Scope 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 requirement with section 209 of the Act, or (3) raise any
other new issue affecting EPA's previous authorization determinations.
Second, EPA requested comment on whether the Within-the-Scope
Amendments would satisfy the criteria for full authorization if they do
not meet the criteria for within-the-scope analysis.
Third, EPA sought comment on whether the Full Authorization
Amendments, for which CARB requested full authorization, satisfy the
full authorization criteria. We specifically requested comment on
whether (1) California's protectiveness determination (i.e., that
California standards will be, in the aggregate, as protective of public
health and welfare as applicable federal standards) is arbitrary and
capricious, (2) California does not need such standards to meet
compelling and extraordinary conditions, or (3) the California
standards and accompanying enforcement procedures are not consistent
with section 209 of the Act.
EPA received no request for a public hearing. Consequently, EPA did
not hold a public hearing. EPA received one written comment and a
response comment from CARB, discussed below.
II. Discussion
A. Within-The-Scope Analysis
We initially evaluate California's Within-the-Scope Amendments by
[[Page 6529]]
application of our traditional within-the-scope analysis, as CARB
requested. If we determine that CARB's request does not meet the
requirements for a within-the-scope determination, we then evaluate the
request based on a full authorization analysis. In determining whether
amendments can be viewed as within the scope of previous waivers, EPA
looks at whether CARB's revision has been limited to making minor
technical amendments to previously waived regulations or modifying the
regulations in order to provide manufacturers with additional
compliance flexibilities without significantly reducing the overall
stringency of the requirements. The Within-the-Scope Amendments at
issue in this request provide for certain compliance extensions and
certain exemptions from the TRU in-use performance standards. The
Within-the Scope Amendments also clarify pre-existing requirements.
EPA sought comment on a range of issues, including those applicable
to a within-the-scope analysis as well as those applicable to a full
authorization analysis. No party submitted a comment that California's
Within-the-Scope Amendments require a full authorization analysis.
Given the lack of comments on this issue, and EPA's assessment of the
nature of the amendments, EPA will evaluate California's Within-the-
Scope Amendments by application of our traditional within-the-scope
analysis, as CARB requested.
EPA can confirm that amended regulations are within the scope of a
previously granted waiver of preemption 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.
B. Full Authorization Analysis
As noted above, CARB's authorization request also included the Full
Authorization Amendments. EPA must grant an authorization of the Full
Authorization Amendments unless the Administrator finds: (1)
California's determination that its standards will be, in the
aggregate, as protective of public health and welfare as applicable
federal standards is arbitrary and capricious; (2) California does not
need such California standards to meet compelling and extraordinary
conditions; or (3) California's standards and accompanying enforcement
procedures are not consistent with this section.
EPA's evaluation of the 2011 TRU Amendments, including the Within-
the-Scope Amendments and Full Authorization Amendments, is set forth
below. Because of the similarity of the within-the-scope criteria and
the full authorization criteria, a discussion of both sets of
respective amendments take place within each authorization criterion.
To the extent that the criteria are applied uniquely, or that
additional criteria apply under either the within-the-scope analysis or
the full authorization analysis, such application is also addressed
below.
1. California's Protectiveness Determination
In its March 2, 2015 letter requesting a within-the-scope
determination, CARB stated that in approving the amendments to the TRU
ATCM, the Board approved Resolution 11-35.\33\ The Board expressly
declared ``. . . 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 the amendments to the TRU ATCM
are, in the aggregate, at least as protective of public health and
welfare as applicable federal standards.'' \34\ CARB noted that EPA
cannot find CARB's determination to be arbitrary and capricious for the
reason that EPA does not have comparable federal emission standards
that regulate in-use TRUs and TRU engines.
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\33\ See Authorization Support Document at 18-19. See also EPA-
HQ-OAR-2015-0224-0002, Attachment 6.
\34\ Id.
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After evaluating the materials submitted by CARB, and since EPA has
not adopted any standards or requirements for in-use TRU systems or
engines, and based on no comments submitted to the record, I cannot
find that California's TRU amendments undermine California's previous
determination that its standards, in the aggregate, are at least as
protective of public health and welfare as applicable federal
standards. Thus I cannot deny CARB's within-the-scope request based on
this criterion. Similarly, with regard to the Full Authorization
Amendments I cannot make a finding that CARB's protectiveness
determination is arbitrary and capricious and thus I cannot deny CARB's
Full Authorization Amendments based on this criterion.
2. Whether the Standards Are Necessary To Meet Compelling and
Extraordinary Conditions
Section 209(e)(2)(A)(ii) 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 .
. . .'' EPA's inquiry under this second criterion (found both in
paragraphs 209(b)(1)(B) and 209(e)(2)(A)(ii)) has been to determine
whether California needs its own mobile source pollution program (i.e.
set of standards) for the relevant class or category of vehicles or
engines to meet compelling and extraordinary conditions, and not
whether the specific standards that are the subject of the
authorization or waiver request are necessary to meet such
conditions.\35\
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\35\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
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EPA does not examine the section 209(e)(2)(A)(ii) criterion in the
context of within-the-scope requests since the original regulations
(that received a previous authorization from EPA) have already been
evaluated under this criterion. However, should CARB adopt amendments
that require a full authorization assessment (e.g. the addition of more
stringent emission standards, etc.) then EPA believes it is appropriate
to reevaluate whether California continues to demonstrate the need for
its own mobile source program. EPA's assessment of the Full
Authorization Amendments under this criterion is set forth below.
California has asserted its longstanding position that the State
continues to need its own nonroad engine program to meet serious air
pollution problems.\36\ The relevant inquiry under section
209(e)(2)(A)(ii) is whether California needs its own emission control
program to meet compelling and extraordinary conditions, not whether
any given standard is necessary to meet such conditions.\37\
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\36\ See Authorization Support Document at 23, ``In adopting
Resolution 11-35, the Board confirmed CARB's longstanding position
that California continues to need its own nonroad engine program to
meet serious air pollution problems.''
\37\ Id.
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There has been no evidence submitted to indicate that California's
compelling and extraordinary conditions do not continue to exist.
California, including the South Coast and the San Joaquin Valley air
basins, continues to experience some of the worst air quality in the
nation and continues to be in non-attainment with national ambient
[[Page 6530]]
air quality standards for fine particulate matter (PM2.5)
and ozone.\38\
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\38\ 74 FR 32744, 32762-63 (July 8, 2009), 76 FR 77515, 77518
(December 13, 2011), 81 FR 95982 (December 29, 2016). EPA
continually evaluates the air quality conditions in the United
States, including California. California continues to experience
some of the worst air quality in the country and continues to be in
nonattainment with National Ambient Air Quality Standards for fine
particulate matter and ozone, see ``Notice of Availability of the
Environmental Protection Agency's Preliminary Interstate Ozone
Transport Modeling Data for the 2015 Ozone National Ambient Air
Quality Standard (NAAQS)'' at EPA-HQ-OAR-2016-0751.
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We received no contrary evidence or comments contesting
California's longstanding determination that its TRU ATCM program is
needed to address the state's compelling and extraordinary conditions,
nor did we receive any suggestion that CARB's nonroad program is not
still necessary. In addition, EPA is not aware of any other information
that would suggest that California no longer needs its nonroad emission
program. Therefore, based on the record of this request and absence of
comments or other information to the contrary, I cannot find that
California does not continue to need such state standards, including
the 2011 TRU Amendments, to address the ``compelling and extraordinary
conditions'' underlying the state's air pollution problems.
3. Consistency With Section 209 of the Clean Air Act
Section 209(e)(2)(A)(iii) of the Act instructs that EPA cannot
grant an authorization if California's standards and enforcement
procedures are not consistent with ``this section.'' As described
above, EPA's section 209(e) rule states that the Administrator shall
not grant authorization to California if she finds (among other tests)
that the ``California standards and accompanying enforcement procedures
are not consistent with section 209.'' EPA has interpreted the
requirement to mean that California standards and accompanying
enforcement procedures must be consistent with at least section 209(a),
section 209(e)(1), and section 209(b)(1)(C), as EPA has interpreted
this last subsection in the context of motor vehicle waivers.\39\ Thus,
this can be viewed as a three-pronged test.
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\39\ See 59 FR 36969 (July 20, 1994).
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a. Consistency With Section 209(a) and 209(e)(1)
Section 209(a) of the Clean Air Act prohibits states or any
political subdivisions of states from setting emission standards for
new motor vehicles or new motor vehicle engines. Section 209(a) is
modified in turn by section 209(b) which allows California to set such
standards if other statutory requirements are met. To find a standard
to be inconsistent with section 209(a) for purposes of section
209(e)(2)(A)(iii), EPA must find that the standard in question actually
regulates new motor vehicles or new motor vehicle engines.
To be consistent with section 209(e)(1) of the Clean Air Act,
California's standards or other requirements relating to the control of
emissions must not relate to new engines which are used in farm or
construction equipment or vehicles and which are smaller than 175
horsepower (hp), and new locomotives or new engines used in
locomotives.
In its authorization request, CARB states that in granting an
authorization for the initial TRU ATCM regulation, EPA found that the
TRU ATCM was consistent with CAA sections 209(a) and 209(e)(1) because
the ATCM did not apply to new motor vehicles and engines or to new
engines under 175 hp used in farm and construction vehicles or
equipment or to new locomotives or locomotive engines.\40\ CARB notes
that the 2011 TRU Amendments likewise do not apply to the above
categories of preempted mobile sources and thus EPA cannot find that
such amendments are inconsistent with section 209(a) and 209(e)(1). No
commenter argued the contrary or otherwise asserted that the 2011 TRU
Amendments are not consistent with section 209(a) and 209(e)(1) and EPA
is otherwise not aware of such evidence.
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\40\ See Authorization Support Document at page 19.
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Therefore, I cannot deny California's request on the basis that
2011 TRU Amendments are not consistent with section 209(a) and section
209(e)(1).
b. 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. To determine this
consistency, EPA has applied to California nonroad standards the same
test it has used previously for California motor vehicle standards;
namely, state 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.\41\
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\41\ MEMA I, 627, F.2d at 1126.
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The legislative history of section 209 (including the ``consistency
with section 202(a)'' requirement in 209(b)(1)(C)) indicates that this
provision is intended to relate to technological feasibility.\42\
Section 202(a)(2) states, in relevant 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.\43\
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\42\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
\43\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182,
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
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With regard to the Within-the-Scope Amendments, CARB notes that the
amendments are designed to provide owners with greater flexibility to
comply with the existing TRU ATCM's in-use requirements. The amendments
were not the result of non-existing technologies according to CARB, but
rather that the Board determined that special considerations were
necessary to accommodate TRU owners during implementation of the rule,
including the availability of certain diesel emission control devices
or the availability of cleaner Tier 4 standard engines in the later
model years. With regard to the amendments that specify requirements
for repowering TRUs with new replacement engines and the allowance for
owners to repower TRUs with rebuilt engines, CARB notes that these
amendments do not modify the pre-existing compliance dates that EPA
previously authorized and EPA has previously addressed rebuilding
[[Page 6531]]
requirements.\44\ CARB also notes that several of its Full
Authorization Amendments help ensure that the TRU ATCM is effectively
implemented and enforced, and therefore constitute ``accompanying
enforcement provisions'' (``AEPs'').\45\ CARB notes that the AEPs that
pertain to new automated monitoring, recordkeeping and reporting
requirements for E/S, hybrid-electric, and hybrid cryogenic TRUs
present no issues regarding technical feasibility. CARB maintains that
the technology needed to comply with the reporting requirements already
exists and the GPS tracking systems are already being used and are
capable of wirelessly transmitting reports and data.\46\
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\44\ See 74 FR 3030 (January 16, 2009), Authorization Support
Document at 22.
\45\ See Authorization Support Document at 25. Section
209(e)(2)(A)(iii) requires that both standards and accompanying
enforcement procedures be consistent with section 202(a). AEPs are
not mentioned elsewhere in section 209(e). AEPs are general
procedures or other requirements designed to ensure that the levels
of emission reductions sought by the standards are achieved, see
MEMA I at 1113.
\46\ See Authorization Support Document at 27.
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EPA received comment acknowledging that the technology for data
collection and record reporting currently exists, but that additional
development will be necessary to ensure that the technology will
provide the necessary information for reporting purposes while also
providing the necessary security and safeguards to protect proprietary
information of both the original equipment manufacturers (``OEMs'') and
the equipment owner.\47\ This commenter also requested further
definition of ``stationary location'' as well as seeking an increase in
the 5 minute requirement to 15 minutes.\48\ CARB responds by noting
that the commenter acknowledges that the technology needed to comply
with the automated monitoring, recordkeeping and reporting requirements
currently exists and that the commenter fails to specify and provide
any evidence of the types of proprietary information that is at issue
and how such potential information is included in what information must
be reported to CARB. CARB also notes that the Alternative Technology
TRUs are subject to reporting requirements that include the address of
each stationary location where such a TRU was operated longer than five
minutes. CARB states that ``Thermo King does not describe why or how
the current 5-minute stationary requirement may be causing confusion
and/or false stationary readings. Furthermore, Thermo King has
presented no evidence to support its argument that the five-minute
requirement will result in confusion or erroneous readings.'' \49\
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\47\ See comment submitted by Thermo King, EPA-HQ-OAR-2015-0224-
0003.
\48\ Id. Thermo King also raises a series of questions regarding
the electronic tracking system requirements that CARB has addressed
in its supplemental comments at EPA-HQ-OAR-2015-0224-0004 (``CARB
Supplemental Comments''). EPA agrees with CARB that questions about
whether the definition and requirements of the electronic tracking
system apply to OEMs and ``free access'' are questions that do not
fall under EPA's review given the limited statutory criteria for
authorization review.
\49\ CARB Supplemental Comments at 7-8.
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As noted above, EPA's 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. I agree that the Within-the-Scope Amendments are designed
to relax (i.e. extend the compliance deadlines in limited circumstances
and provide additional exemptions) and clarify existing TRU ATCM
requirements and therefore provide additional flexibility to regulated
parties. EPA also did not receive any comments arguing that the Within-
the-Scope Amendments were technologically infeasible. With regard to
the Full Authorization Amendments I find that CARB has presented
sufficient information to demonstrate that the technology needed to
meet the applicable requirements already exists. To the extent that
comments were raised concerning Alternative Technology TRUs and
associated reporting requirements, the commenter raising such concerns
has failed to meet their burden of proof in demonstrating why such
requirements are technologically infeasible. As such, the record does
not support a finding that the 2011 TRU Amendments are inconsistent
with Section 202(a).
4. New Issues
EPA has stated in the past that if California promulgates
amendments that raise new issues affecting previously granted waivers
or authorizations, we would not confirm that those amendments are
within the scope of previous authorizations.\50\ I do not believe that
the Within-the-Scope Amendments that extend the compliance dates under
certain circumstances, provide new or clarify existing exemptions from
the TRU in-use performance standards, and provide clarifications to
CARB's existing TRU ATCM raise any new issues with respect to our prior
granting of the authorization. Moreover, EPA did not receive any
comments that CARB's TRU Amendments raised new issues affecting the
previously granted authorization. Therefore, I cannot find that CARB's
Within-the-Scope Amendments raise new issues and consequently, cannot
deny CARB's request based on this criterion.
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\50\ See, e.g., 78 FR 38970 (June 28, 2013), 75 FR 8056
(February 23, 2010), and 70 FR 22034 (April 28, 2005).
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III. Decision
After evaluating CARB's 2011 TRU Amendments described above, EPA is
taking the following actions. First, I am granting an authorization for
the Full Authorization Amendments. Second, I confirm that the Within-
the-Scope Amendments are within the scope of the previous EPA
authorizations.
This decision will affect persons not only in California, but also
manufacturers and/or owners/operators nationwide who must comply with
California's requirements. In addition, because other states may adopt
California's standards for which a section 209(e)(2)(A) authorization
has been granted if certain criteria are met, this decision would also
affect those states and those persons in such states. See CAA section
209(e)(2)(B). For these reasons, EPA determines and finds that this is
a final action of national applicability, and also a final action of
nationwide scope or effect 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 March 20, 2017. 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).
[[Page 6532]]
Dated: January 11, 2017.
Gina McCarthy,
Administrator.
[FR Doc. 2017-01225 Filed 1-18-17; 8:45 am]
BILLING CODE 6560-50-P