California State Nonroad Engine and Vehicle Pollution Control Standards;
Opportunity for Public Hearing and Request for Public Comment
[Federal Register: November 21, 2005 (Volume 70, Number 223)]
[Notices]
[Page 70075-70077]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21no05-41]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[AMS-FRL-7994-9]
California State Nonroad Engine and Vehicle Pollution Control Standards;
Opportunity for Public Hearing and Request for Public Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of opportunity for public hearing and comment.
-----------------------------------------------------------------------
SUMMARY: The California Air Resources Board (CARB) has notified EPA
that it has adopted an Airborne Toxic Control Measure (ATCM)
establishing in-use performance standards for transport refrigeration
units (TRU) and TRU generator sets that will be phased-in commencing on
December 31, 2008. By letter dated March 28, 2005, CARB requested that
EPA grant California authorization for such standards under section
209(e)(2) of the Clean Air Act (CAA), 42 U.S.C. 7543(b) (EPA frequently
calls such authorizations ``waivers of preemption''). This notice
announces that EPA has tentatively scheduled a public hearing
concerning California's request and that EPA is accepting written
comment on the request.
DATES: EPA has tentatively scheduled a public hearing concerning CARB's
request on January 3, 2006 beginning at 10 a.m. EPA will hold a hearing
only if a party notifies EPA by December 16, 2005, expressing its
interest in presenting oral testimony. By December 21, 2005, any person
who plans to attend the hearing should call Robert M. Doyle at (202)
343-9258 to learn if a hearing will be held. 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 by February 6, 2006.
ADDRESSES: EPA will make available for public inspection at the Air and
Radiation Docket and Information Center written comments received from
interested parties, in addition to any testimony given at the public
hearing. The official public docket is the collection of materials that
is available for public viewing at the Air and Radiation Docket in the
EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution
Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is
open from 8:30 to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air and Radiation Docket is
(202) 566-1743. The reference number for this docket is OAR-2005-0123.
Parties wishing to present oral testimony at the public hearing should
provide written notice to Robert M. Doyle at the address noted below.
If EPA receives a request for a public hearing, EPA will hold the
public hearing at 1310 L St., NW., Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Compliance and
Innovative Strategies Division (6405J), U.S. Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Telephone:
(202) 343-9258, Fax: (202) 343-2804, e-mail address:
Doyle.Robert@EPA.GOV. EPA will make available an electronic copy of
this Notice on the Office of Transportation and Air Quality's (OTAQ's)
homepage (http://www.epa.gov/otaq/). Users can find this document by
accessing the OTAQ homepage and looking at the path entitled
``Regulations.'' 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/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. Parties
wishing to present oral testimony at the public hearing should provide
written notice to Robert M. Doyle at: U.S. Environmental Protection
Agency, 1200 Pennsylvania
[[Page 70076]]
Ave., NW., (6405J), Washington, DC 20460. Telephone: (202) 343-9258.
Docket: An electronic version of the public docket is available
through EPA's electronic public docket and comment system. You may use
EPA dockets at http://www.regulations.gov/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Although a part of the official docket,
the public docket, the public docket does not include Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Once in the edocket system, select ``search,''
then key in the appropriate docket ID number.
SUPPLEMENTARY INFORMATION:
(A) Background and Discussion
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 allows the Administrator 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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
Section 209(e)(2) requires the Administrator, after notice and
opportunity for public hearing, to authorize California to enforce
standards and other requirements relating to emissions control of new
engines not listed under section 209(e)(1).\3\ The section 209(e) rule
and its codified regulations \4\ formally set forth the criteria,
located in section 209(e)(2) of the Act, by which EPA must grant
California authorization to enforce its new nonroad emission standards
and they are as follows:
---------------------------------------------------------------------------
\3\ As discussed above, states are permanently preempted from
adopting or enforcing standards relating to the control of emissions
from new engines listed in section 209(e)(1).
\4\ See 40 CFR part 85, subpart Q, Sec. 85.1605.
---------------------------------------------------------------------------
(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 ``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.\5\ 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.\6\ 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).
---------------------------------------------------------------------------
\5\ See 59 FR 36969, 36983 (July 20, 1994).
\6\ Section 209(e)(1) of the Act has been implemented, see 40
CFR part 85, subpart Q Sec. Sec. 85.1602, 85.1603.
---------------------------------------------------------------------------
Finally, because California's nonroad standards and enforcement
procedures must be consistent with section 209(b)(1)(C), EPA reviews
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
Act. As previous decisions granting waivers of Federal preemption for
motor vehicles have explained, 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
procedures.\7\
---------------------------------------------------------------------------
\7\ 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).
---------------------------------------------------------------------------
CARB's March 28, 2005 letter to the Administrator notified EPA that
it had adopted an Airborne Toxic Control Measure (ATCM) on February 26,
2004 establishing in-use performance standards for TRUs and TRU
generator sets. This regulation can be found at title 13, California
Code of Regulations (CCR), division 3, section 2477.
Procedures for Public Participation
In recognition that public hearings are 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 that he or she deems irrelevant or
repetitious and to impose reasonable time 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 February 6, 2006. Upon expiration of the comment
period, the Administrator will render a decision on CARB's request
based on the record of the public hearing(s), if any, relevant written
submissions, and other information that he deems pertinent. All
information will be available for inspection at EPA Air Docket. (OAR-
2005-0123).
Persons with comments containing proprietary information must
distinguish such information from other comments to the greatest
possible extent and label it as ``Confidential Business Information''
(CBI). If a person making comments wants EPA to base its
[[Page 70077]]
decision in part on a submission labeled CBI, then a nonconfidential
version of the document that summarizes the key data or information
should be submitted for the public docket. 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. Information covered
by a claim of confidentiality will be disclosed by EPA only to the
extent allowed and by 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: November 3, 2005.
Elizabeth Craig,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 05-22995 Filed 11-18-05; 8:45 am]
BILLING CODE 6560-50-P