[Federal Register: January 16, 2009 (Volume 74, Number 11)]
[Notices]
[Page 3030-3033]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja09-77]
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ENVIRONMENTAL PROTECTION AGENCY
[AMS-FRL-8762-9]
California State Nonroad Engine and Vehicle Pollution Control
Standards; Authorization of Transport Refrigeration Unit Engine
Standards, Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Decision for Authorization of California Transport
Refrigeration Unit In-use Engine Emission Standards.
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SUMMARY: EPA today, pursuant to section 209(e) of the Clean Air Act
(Act), 42 U.S.C. 7543(e), is granting California its request for
authorization to enforce its Airborne Toxic Control measure (ATCM)
establishing in-use emission performance standards for engines in
[[Page 3031]]
transport refrigeration units (TRUs) and TRU generator sets that will
be phased-in commencing in December 31, 2008.
ADDRESSES: The Agency's Decision Document, containing an explanation of
the Assistant Administrator's decision, as well as all documents relied
upon in making that decision, including those submitted to EPA by
California, are available for public inspection in EPA Air and
Radiation Docket and Information Center (Air Docket). Materials
relevant to this decision are contained in Docket OAR-2005-0123 at the
following location: EPA Air Docket, Room 3334, 1301 Constitution
Avenue, NW., Washington, DC, 20460. The EPA Docket Center Public
Reading Room is open from 8 a.m. to 5:30 p.m. Monday through Friday,
except on government holidays. The Air Docket telephone number is (202)
566-1742, and the facsimile number is (202) 566-1741. You may be
charged a reasonable fee for photocopying docket materials, as provided
in 40 CFR part 2.
Additionally, an electronic version of the public docket is
available through the Federal government's electronic public docket and
comment system. You may access EPA dockets at http://
www.regulations.gov. After opening the http://www.regulations.gov Web
site, select ``Environmental Protection Agency'' from the pull-down
Agency list, then scroll to ``Keyword or ID'' and enter EPA-HQ-OAR-
2005-0123 to view documents in the record of this TRU Authorization
Request docket. Although a part of the official docket, the public
docket does not include Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
EPA makes available an electronic copy of this Notice via the
Internet on the Office of Transportation and Air Quality (OTAQ)
homepage (http://www.epa.gov/OTAQ). Users can find this document by
accessing the OTAQ homepage and looking at the path entitled ``Federal
Register Notices.'' This service is free of charge, except any cost you
already incur for Internet connectivity. Users can also get the
official Federal Register version of the Notice on the day of
publication on the primary Web site: (http://www.epa.gov/docs/fedrgstr/
EPA-AIR) Please note that due to differences between the software used
to develop the documents and the software into which the documents may
be downloaded, changes in format, page length, etc., may occur.
FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Attorney-Advisor,
Office of Transportation and Air Quality, (6403J), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460
(U.S. mail), 1310 L Street, NW., Washington, DC 20005 (courier mail).
Telephone: (202) 343-9258, Fax: (202) 343-2804, E-Mail:
doyle.robert@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. Nonroad Authorizations
Section 209(e)(1) of the Act addresses the permanent preemption of
any State, or political subdivision thereof, from adopting or
attempting to enforce any standard or other requirement relating to the
control of emissions for certain new nonroad engines or vehicles.\1\
Section 209(e)(2) of the Act requires the Administrator, after notice
and opportunity for public hearing, to grant California authorization
to enforce state standards for new nonroad engines or vehicles which
are not listed under section 209(e)(1), subject to certain
restrictions. On July 20, 1994, EPA promulgated a regulation that sets
forth, among other things, the criteria, as found in section 209(e)(2),
by which EPA must consider any California authorization requests for
new nonroad engines or vehicle emission standards (section 209(e)
rules).\2\ This regulation, previously codified at 40 CFR Part 85,
Subpart Q, and, effective December 8, 2008, codified at 40 CFR Part
1074, provides:
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\1\ Section 209(e)(1) of the Act provides:
No State or any political subdivision thereof shall adopt or
attempt to enforce any standard or other requirement relating to the
control of emissions from either of the following new nonroad
engines or nonroad vehicles subject to regulation under this Act--
(A) New engines which are used in construction equipment or
vehicles or used in farm equipment or vehicles and which are smaller
than 175 horsepower.
(B) New locomotives or new engines used in locomotives.
Subsection (b) shall not apply for purposes of this paragraph.
\2\ See 59 FR 36969 (July 20, 1994), and regulations set forth
therein, 40 CFR Part 85, Subpart Q, Sec. Sec. 85.1601-85.1606. EPA
recently moved these regulations, without changing their substance
to 40 CFR Part 1074. See 73 FR 59033, 59279 (October 8, 2008).
(a) The Administrator shall grant the authorization if
California determines that its standards will be, in the aggregate,
at least as protective of public health and welfare as applicable
Federal standards.
(b) The authorization shall not be granted if the Administrator
finds that:
(1) The determination of California is arbitrary and capricious;
(2) California does not need such California standards to meet
compelling and extraordinary conditions; or
(3) California standards and accompanying enforcement procedures
are not consistent with section 209.
As stated in the preamble to the section 209(e) rule, EPA has
interpreted the requirement regarding whether ``California standards
and accompanying enforcement procedures are not consistent with section
209'' to mean that California standards and accompanying enforcement
procedures must be consistent with section 209(a), section 209(e)(1),
and section 209(b)(1)(C), as EPA has interpreted that subsection in the
context of motor vehicle waivers.\3\ In order to be consistent with
section 209(a), California's nonroad standards and enforcement
procedures must not apply to new motor vehicles or new motor vehicle
engines. Secondly, California's nonroad standards and enforcement
procedures must be consistent with section 209(e)(1), which identifies
the categories permanently preempted from state regulation.\4\
California's nonroad standards and enforcement procedures would be
considered inconsistent with section 209 if they applied to the
categories of engines or vehicles identified and preempted from State
regulation in section 209(e)(1).
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\3\ See 59 FR 36969, 36983 (July 20, 1994).
\4\ Section 209(e)(1) of the Act has been implemented See 40 CFR
Part 85, Subpart Q, Sec. Sec. 85.1602, 85.1603 and, effective
December 8, 2008, 40 CFR Part 1074, Sec. Sec. 1074.10, 1074.12.
Sec. 1074.10 provides in applicable part:
(a) States are preempted from adopting or enforcing standards or
other requirements relating to the control of emissions from new
engines smaller than 175 horsepower that are primarily used in farm
or construction equipment or vehicles, as defined in this part. For
equipment that is used in applications in addition to farming or
construction activities, if the equipment is primarily used as farm
and/or construction equipment or vehicles (as defined in this part),
it is considered farm or construction equipment or vehicles.
Sec. 1074.5 provides definitions of terms used in Sec. 1074.10
and states in applicable part:
Construction equipment or vehicle means any internal combustion
engine-powered machine primarily used in construction and located on
commercial construction sites.
Farm Equipment or Vehicle means any internal combustion engine-
powered machine primarily used in the commercial production and/or
commercial harvesting of food, fiber, wood, or commercial organic
products or for the processing of such products for further use on
the farm.
Primarily used means used 51 percent or more.
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Finally, because California's nonroad standards and enforcement
procedures must be consistent with section 209(b)(1)(C), EPA will
review nonroad authorization requests under the same ``consistency''
criteria that are applied to motor vehicle waiver requests. Under
section 209(b)(1)(C), the Administrator shall not grant California a
motor vehicle waiver if he finds that California ``standards and
accompanying enforcement procedures are not consistent with section
202(a)'' of the
[[Page 3032]]
Act. Previous decisions granting waivers of Federal preemption for
motor vehicles have stated that State standards are inconsistent with
section 202(a) if there is inadequate lead time to permit the
development of the necessary technology giving appropriate
consideration to the cost of compliance within that time period or if
the Federal and State test procedures impose inconsistent certification
requirements.\5\
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\5\ To be consistent, the California certification procedures
need not be identical to the Federal certification procedures.
California procedures would be inconsistent, however, if
manufacturers would be unable to meet both the state and the Federal
requirement with the same test vehicle in the course of the same
test. See, e.g., 43 FR 32182 (July 25, 1978).
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With regard to enforcement procedures accompanying standards, EPA
must grant the requested authorization unless it finds that these
procedures may cause the California standards, in the aggregate, to be
less protective of public health and welfare than the applicable
Federal standards promulgated pursuant to section 213(a), or unless the
Federal and California certification test procedures are
inconsistent.\6\
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\6\ See, e.g., Motor and Equipment Manufacturers Association,
Inc. v. EPA, 627 F.2d 1095, 1111-14 (D.C. Cir. 1979), cert. denied,
446 U.S. 952 (1980) (MEMA I); 43 FR 25729 (June 14, 1978). While
inconsistency with section 202(a) includes technological
feasibility, lead time, and cost, these aspects are typically
relevant only with regard to standards. The aspect of consistency
with 202(a) which is of primary applicability to enforcement
procedures (especially test procedures) is test procedure
consistency.
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Once California has received an authorization for its standards and
enforcement procedures for a certain group or class of nonroad
equipment engines or vehicles, it may adopt other conditions precedent
to the initial retail sale, titling or registration of these engines or
vehicles without the necessity of receiving an additional
authorization.\7\
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\7\ See 43 FR 36679, 36680 (August 18, 1978).
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If California acts to amend a previously authorized standard or
accompanying enforcement procedure, the amendment may be considered
within the scope of a previously granted authorization provided that it
does not undermine California's determination that its standards in the
aggregate are as protective of public health and welfare as applicable
Federal standards, does not affect the consistency with section 209 of
the Act, and raises no new issues affecting EPA's previous
authorization determination.\8\
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\8\ Decision Document, Dockets A-2000-05 to 08, entry V-B-1, p.
10.
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B. CARB's Authorization Request
CARB, by letter dated March 28, 2005, requested that EPA grant
California an authorization to adopt and enforce new regulations which
establish in-use performance standards for diesel-fueled TRUs and TRU
generator sets which operate in California, and facilities where TRUs
operate. The TRU regulations are contained in an Airborne Toxic Control
Measure (ATCM) adopted by CARB to reduce the general public's exposure
to diesel particulate matter (PM), other toxic airborne contaminants
(TACs) and air pollutants generated by TRUs and reduce near source risk
at facilities where TRUs congregate. TRUs are refrigeration systems
powered by internal combustion engines (almost always diesel-powered)
which control the environment of temperature-sensitive products
(perishable food and commodities) that are transported in semi-trailer
vans, truck vans, ``reefer' railcars or shipping containers. The
engines in TRUs do not propel the vehicle, but are used strictly to
power the refrigeration system. TRU generator sets are designed and
used to provide electric power to electrically driven refrigeration
units of any kind. These TRU engines are nonroad engines; they do not
propel the vehicle, but are used strictly to power the refrigeration
system. TRU engines vary in horsepower generally from 7 hp to 36 hp,
with the most common size being 35 hp.\9\
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\9\ CARB TRU Authorization Request, Initial Statement of
Reasons, Docket Entry OAR-2005-0123-0005, p. E-2.
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Owners/operators of TRUs that operate in California must comply
with the in-use performance standards; this applies to TRUs registered
in California and outside of California, even if the in-California use
is minimal. Most of the engines used in TRUs are already subject to
Federal and California emission standards as new engines. New TRU
engines less than 25 hp became subject to CARB standards in 1995 and
EPA standards in 2000, and engines equal to or greater than 25 hp but
less than 50 hp became subject to EPA standards in 1999 and to CARB
standards in 2000.
These new CARB regulations will affect in-use TRU engines by
requiring the in-use TRU engines to meet specific performance standards
that vary by HP range, and have two levels of stringency that are
phased in over time--the Low Emission TRU (LETRU) Standards, beginning
in 2008, and the Ultra-Low Emission TRU (ULETRU) Performance Standard
beginning in 2010. The ATCM requires owners of TRUs to meet more
stringent performance standards at 7-year intervals until the TRU meets
the Ultra-Low emission performance standards, and the timing depends on
the original Model Year of the engine. The TRU in-use standards
correlate to the EPA Tier 4 Nonroad CI standards; the LETRU standards
are the EPA Interim standards and the ULETRU standards are the EPA
long-term standards.
The TRU regulations offer several ways that owners/operators can
comply. The owner/operator may:
(1) Elect to show that the existing TRU is equipped with an engine
that meets the EPA Tier IV certification standard for new non-road
engines;
(2) Repower the TRU system by replacing the existing TRU engine
with an engine that meets the EPA Tier IV standard for new engines;
(3) Replace an existing TRU with a newer TRU that is equipped with
an engine that meets the EPA tier IV certificate standard for new
engines;
(4) Retrofit an existing TRU engine using a CARB approved verified
diesel emission control strategy (VDECS);
(5) Use an Alternative Technology approved by CARB.\10\
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\10\ CARB identifies these ``Alternative technologies'' as
including but not limited to the use of electric standby, cryogenic
temperature control systems, alternative fuel, alternative diesel
fuel, fuel cell power, or any other system approved by the CARB
Executive Officer to not emit diesel PM or increase public health
risk while at a facility. Alternative technologies only qualify
toward compliance with the ULETRU in-use performance standard
requirement if they eliminate diesel operation at facilities. CARB
TRU Authorization Request, Initial Statement of Reasons, Docket
Entry OAR-2005-0123-0005, p. VII-7.
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Owners/Operators of TRU engines 25 hp and over can choose any of
the compliance options listed above. Owners/Operators of TRU engines
under 25 hp will need to choose either the retrofit option, or the
alternative technology option to meet the ULETRU requirement. This is
because currently there is no Tier-4 aligned (i.e. after treatment-
forcing) EPA standard for engines under 25 hp, so there is no Tier-4
aligned engine certification compliance option available to meet the
ULETRU in-use standard.\11\
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\11\ CARB Request Letter and Support Document, Docket Entry OAR-
2005-0123-0002, p. 6.
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As required by the Act, EPA offered the opportunity for a public
hearing and requested public comments on these new standards by
publication of a Federal Register notice to such effect on November 21,
2005.\12\ EPA received a request for a hearing from the American
Trucking Association, and from the
[[Page 3033]]
Truck Rental and Leasing Association,\13\ and a hearing was held on
January 23, 2006.\14\ In addition, EPA received written comments for
the Docket of this proceeding from several commenters, including
additional submissions from CARB and some of the parties who testified
at the public hearing, submissions from the Owner-Operators Independent
Drivers Association, the Truckload Carriers Association, the California
Trucking Association, the Pacific Merchant Shipping Association, and
the Agricultural and Food Transporters Conference of American Trucking
Associations, and a supplemental submission from CARB responding to
matters raised by some industry parties in their written comments.\15\
Accordingly, EPA has made this authorization decision based on the
information submitted by CARB in its requests, and the information
presented to the Agency at the public hearing and in the comments
received after the hearing.
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\12\ 70 FR 70075 (November 21, 2005), Docket Entry OAR-2005-
0123-0001.
\13\ Letter from Glenn P. Kedzie, American Trucking Association
to Robert M. Doyle, USEPA, dated January 27, 2005, Docket Entry
2005-0123-0014, and letter from Thomas James, Truck Rental and
Leasing Association to Robert M. Doyle, USEPA, dated December 1,
2005, Docket entry OAR-2005-0123-0015.
\14\ EPA received testimony from: Michael Terris, Anthony
Andreoni and Rod Hill, California Air Resources Board; Robert
Digges, American Trucking Association; Corey England, C.R. England
Co.; James Lyons, Sierra Research; Thomas James, Truck Rental and
leasing Association, Andrew Stopka, National Lease Company; Thomas
Richichi, Beveridge & Diamond Law Firm, on behalf of the American
Trucking Association, and John Kaburick, Earl L. Henderson Trucking
Company and on behalf of the Truckload Carriers Association. Written
statements presented at this hearing and the hearing transcript
appear in the Docket as Docket Entries OAR-2005-0123-0013 and OAR-
2005-0123-0017 through OAR-2005-0123-0023.
\15\ These comments can be found in the Docket as Docket entries
OAR-2005-0123-0024 through OAR-2005-0123-0031.
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C. Authorization Decision
EPA received hearing testimony and written comments from industry
parties who opposed the CARB request for authorization request on
various grounds. After review of the information submitted by CARB and
other parties to the record of this Docket, however, EPA finds that
those opposing the authorization request have not met the burden of
demonstrating that California's regulations do not satisfy the
statutory criteria of section 209(e). For this reason, EPA is granting
California authorization to enforce its TRU ATCM regulations. A full
explanation of EPA's decision, including our review of comments
received, is contained in our Decision Document, which may be obtained
as explained above in the ``Addresses'' section of this Notice.
My decision will affect not only persons in California but also
persons outside the State who would need to comply with California's
TRU ATCM regulations to enter California with such engines. For this
reason, I hereby determine and find that this is a final action of
national applicability.
Under section 307(b)(1) of the Act, judicial review of this final
action may be sought only in the United States Court of Appeals for the
District of Columbia Circuit. Petitions for review must be filed by
March 17, 2009. Under section 307(b)(2) of the Act, judicial review of
this final action may not be obtained in subsequent enforcement
proceedings.
As with past authorization decisions, this action is not a rule as
defined by Executive Order 12866. Therefore, it is exempt from review
by the Office of Management and Budget as required for rules and
regulations by Executive Order 12866.
In addition, this action is not a rule as defined in the Regulatory
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a
supporting regulatory flexibility analysis addressing the impact of
this action on small business entities.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, does not
apply because this action is not a rule, for purposes of 5 U.S.C.
804(3).
Finally, the Administrator has delegated the authority to make
determinations regarding authorizations under section 209(e) of the Act
to the Assistant Administrator for Air and Radiation.
Dated: January 9, 2009.
Robert J. Meyers,
Principal Deputy Assistant Administrator for Air and Radiation.
[FR Doc. E9-907 Filed 1-15-09; 8:45 am]
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