82_FR_6537 82 FR 6525 - 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

82 FR 6525 - 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

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 82, Issue 12 (January 19, 2017)

Page Range6525-6532
FR Document2017-01225

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'').

Federal Register, Volume 82 Issue 12 (Thursday, January 19, 2017)
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Notices]
[Pages 6525-6532]
From the Federal Register Online  [www.thefederalregister.org]
[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: [email protected], 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: [email protected].

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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \33\ See Authorization Support Document at 18-19. See also EPA-
HQ-OAR-2015-0224-0002, Attachment 6.
    \34\ Id.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \35\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \39\ See 59 FR 36969 (July 20, 1994).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \40\ See Authorization Support Document at page 19.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \41\ MEMA I, 627, F.2d at 1126.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \50\ See, e.g., 78 FR 38970 (June 28, 2013), 75 FR 8056 
(February 23, 2010), and 70 FR 22034 (April 28, 2005).
---------------------------------------------------------------------------

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



                                                                               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                                   6525

                                                    Courier Deliveries should be directed                 ADDRESSES:   EPA has established a                     regulations on January 9, 2009.1 EPA
                                                  to:                                                     docket for this Notice of Decision under               also granted a within-the-scope
                                                    U.S. EPA, Office of Pollution                         Docket ID EPA–HQ–OAR–2015–0224.                        authorization for amendments to the
                                                  Prevention and Toxics, Confidential                     All documents relied upon in making                    TRU regulations, adopted in 2010, on
                                                  Business Information Center (CBIC),                     this decision, including those submitted               June 28, 2013.2 The TRU regulations
                                                  Attn: TSCA CBI Substantiations. 1201                    to EPA by CARB, are contained in the                   establish in-use performance standards
                                                  Constitution Avenue NW., WJC East;                      public docket. Publicly available docket               for diesel-fueled TRUs and TRU
                                                  Room 6428 Washington, DC 20004–                         materials are available either                         generator sets which operate in
                                                  3302, (202) 564–8930.                                   electronically through                                 California, and facilities where TRUs
                                                    More information on how to                            www.regulations.gov or in hard copy at                 operate. The TRU regulations are
                                                  substantiate CBI claims for paper                       the Air and Radiation Docket in the EPA                contained in an Airborne Toxic Control
                                                  submissions can be found at https://                    Headquarters Library, EPA West                         Measure (‘‘ATCM’’) adopted by CARB to
                                                  www.epa.gov/tsca-cbi/.                                  Building, Room 3334, located at 1301                   reduce the general public’s exposure to
                                                     Authority: 15 U.S.C. 2601 et seq.                    Constitution Avenue NW., Washington,                   diesel particulate matter (‘‘PM’’), other
                                                                                                          DC. The Public Reading Room is open                    toxic airborne contaminants and air
                                                    Dated: January 13, 2017.                              from 8:30 a.m. to 4:30 p.m.; Monday                    pollutants generated by TRUs and
                                                  James J. Jones,                                         through Friday, excluding legal                        reduce near source risk at facilities
                                                  Assistant Administrator, Office of Chemical             holidays. The telephone number for the                 where TRUs congregate. TRUs are
                                                  Safety and Pollution Prevention.                        Reading Room is (202) 566–1744. The                    refrigeration systems powered by
                                                  [FR Doc. 2017–01235 Filed 1–18–17; 8:45 am]             Air and Radiation Docket and                           internal combustion engines which
                                                  BILLING CODE 6560–50–P                                  Information Center’s Web site is http://               control the environment of temperature-
                                                                                                          www.epa.gov/oar/docket.html. The                       sensitive products that are transported
                                                                                                          email address for the Air and Radiation                in semi-trailer vans, truck vans, ‘‘reefer’’
                                                  ENVIRONMENTAL PROTECTION                                Docket is: a-and-r-Docket@epa.gov, the                 railcars or shipping containers. The
                                                  AGENCY                                                  telephone number is (202) 566–1742,                    engines in TRUs do not propel the
                                                                                                          and the fax number is (202) 566–9744.                  vehicle, but are used strictly to power
                                                  [EPA–HQ–OAR–2013–0024; FRL–9958–64–                     An electronic version of the public                    the refrigeration system. These TRU
                                                  OAR]                                                    docket is available through the federal                engines are nonroad engines and vary in
                                                                                                          government’s electronic public docket                  horsepower (‘‘hp’’) generally from 7 hp
                                                  California State Nonroad Engine                                                                                to 36 hp.
                                                                                                          and comment system. You may access
                                                  Pollution Control Standards; In-Use                                                                               By letter dated March 2, 2015, CARB
                                                                                                          EPA dockets at http://
                                                  Diesel-Fueled Transport Refrigeration                                                                          submitted a request to EPA for
                                                                                                          www.regulations.gov. After opening the
                                                  Units (TRUs) and TRU Generator Sets                                                                            authorization of amendments to its TRU
                                                                                                          www.regulations.gov Web site, enter
                                                  and Facilities Where TRUs Operate;                                                                             regulations 3 pursuant to section 209(e)
                                                                                                          EPA–HQ–OAR–2015–0224 in the ‘‘Enter
                                                  Notice of Decision                                                                                             of the CAA.4 The 2011 TRU
                                                                                                          Keyword or ID’’ fill-in box to view
                                                                                                          documents in the record. Although a                    Amendments were adopted by CARB on
                                                  AGENCY: Environmental Protection
                                                                                                          part of the official docket, the public                October 21, 2011, and became operative
                                                  Agency (EPA).
                                                                                                          docket does not include Confidential                   state law on October 15, 2012.5 The
                                                  ACTION: Notice of decision.                                                                                    2011 TRU Amendments provide owners
                                                                                                          Business Information (‘‘CBI’’) or other
                                                                                                                                                                 of 2001 through 2003 model year (MY)
                                                  SUMMARY:    The Environmental Protection                information whose disclosure is
                                                                                                                                                                 TRU engines that complied with
                                                  Agency (‘‘EPA’’) is granting the                        restricted by statute.
                                                                                                                                                                 applicable Low-Emission TRU
                                                  California Air Resources Board                             EPA’s Office of Transportation and                  (‘‘LETRU’’) in-use performance
                                                  (‘‘CARB’’) request for authorization of                 Air Quality (‘‘OTAQ’’) maintains a Web                 standards by specified compliance
                                                  amendments to its Airborne Toxic                        page that contains general information                 deadlines a one- or two-year extension
                                                  Control Measure for In-Use Diesel-                      on its review of California waiver and                 from the more stringent Ultra-Low
                                                  Fueled Transport Refrigeration Units                    authorization requests. Included on that               Emission (‘‘ULETRU’’) in-use
                                                  (‘‘TRU’’) and TRU Generator Sets and                    page are links to prior waiver Federal                 performance standards. The
                                                  Facilities Where TRUs Operate (together                 Register notices, some of which are                    amendments also clarify manual
                                                  ‘‘2011 TRU Amendments’’). EPA’s                         cited in today’s notice; the page can be               recordkeeping requirements for electric
                                                  decision also confirms that certain of                  accessed at http://www.epa.gov/otaq/                   standby-equipped TRUs and ultimately
                                                  the 2011 TRU amendments are within                      cafr.htm.                                              require automated electronic tracking
                                                  the scope of prior EPA authorizations.                                                                         system requirements for such TRUs and
                                                  The 2011 TRU Amendments primarily                       FOR FURTHER INFORMATION CONTACT:                       establish requirements for businesses
                                                  provide owners of TRU engines with                      David Dickinson, Attorney-Advisor,                     that arrange, hire, contract, or dispatch
                                                  certain flexibilities; clarify                          Transportation and Climate Division,                   the transport of goods in TRU-equipped
                                                  recordkeeping requirements for certain                  Office of Transportation and Air                       trucks, trailers or containers. A more
                                                  types of TRU engines; establish                         Quality, U.S. Environmental Protection
                                                  requirements for businesses that                        Agency, 1200 Pennsylvania Ave. NW.,                      1 74  FR 3030 (January 16, 2009).
                                                  arrange, hire, contract, or dispatch the                (6405J), Washington, DC 20460.                           2 78  FR 38970 (June 28, 2013).
                                                  transport of goods in TRU-equipped                      Telephone: (202) 343–9256. Fax: (202)                    3 13 California Code of Regulations (CCR),

                                                  trucks, trailers, or containers; and                    343–2804. Email: dickinson.david@                      sections 2111, 2112, Appendix A therein, 2139,
mstockstill on DSK3G9T082PROD with NOTICES




                                                  address other issues that arose during                                                                         2147, 2440, 2441, 2442, 2443.1, 2443.2, 2443.3,
                                                                                                          epa.gov.                                               2444.1, 2444.2, 2445.1, 2445.2, 2447, 2474 and
                                                  the initial implementation of the                                                                              2448.
                                                  regulation. This decision is issued                     SUPPLEMENTARY INFORMATION:                               4 ‘‘Clean Air Act § 209(e)(2) Authorization

                                                  under the authority of the Clean Air Act                I. Background                                          Support Document submitted by the California Air
                                                  (‘‘CAA’’ or ‘‘Act’’).                                                                                          Resources Board, March 2, 2015,’’ at EPA–HQ–
                                                                                                                                                                 OAR–2015–0224–0002 (Authorization Support
                                                  DATES: Petitions for review must be filed                 EPA granted an authorization for                     Document).
                                                  by March 20, 2017.                                      California’s initial set of TRU                          5 Id., Attachment 13.




                                             VerDate Sep<11>2014   21:20 Jan 18, 2017   Jkt 241001   PO 00000   Frm 00044   Fmt 4703   Sfmt 4703   E:\FR\FM\19JAN1.SGM    19JAN1


                                                  6526                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                  detailed description of the 2011                        basing the compliance deadline on the                  B. Clean Air Act Nonroad Engine and
                                                  Amendments is presented below in the                    model year of the TRU engine.6                         Vehicle Authorizations
                                                  context of which amendments CARB                           Second, CARB requested full                            Section 209(e)(1) of the Act
                                                  seeks within-the-scope confirmation                     authorization for amendments that                      permanently preempts any state, or
                                                  and those amendments for which CARB                     revise standards or establish new                      political subdivision thereof, from
                                                  seeks a full authorization.                             requirements (‘‘Full Authorization                     adopting or attempting to enforce any
                                                  A. California’s Authorization Request                   Amendments’’). These provisions                        standard or other requirement relating
                                                                                                          include amendments that require new                    to the control of emissions for certain
                                                     California requested EPA perform two                 replacement engines to meet more                       new nonroad engines or vehicles.8 For
                                                  types of review. First, CARB requested                  stringent requirements (based on the                   all other nonroad engines, states
                                                  an EPA determination that certain                       new replacement engine’s model year or                 generally are preempted from adopting
                                                  provisions of the 2011 amendments are                   effective model year) than the original                and enforcing standards and other
                                                  within the scope of the prior                           TRU engines. The Full Authorization                    requirements relating to the control of
                                                  authorizations, or in the alternative,                  Amendments also provide that to the                    emissions. Section 209(e)(2), however,
                                                  merit full authorization (‘‘Within-the-                 extent TRUs now may be repowered                       requires the Administrator, after notice
                                                  Scope Amendments’’). The Within-the-                    with rebuilt engines such rebuilt                      and opportunity for public hearing, to
                                                  Scope Amendments provide owners of                      engines must meet more stringent                       authorize California to adopt and
                                                  2003 and older MY TRUs an extension                     emission standards than the standards                  enforce standards and other
                                                  of the ULETRU compliance date if the                    of the original engine, and provided the               requirements relating to the control of
                                                  TRUs complied with the LETRU                            engines are rebuilt by engine rebuilders               emissions from such vehicles or engines
                                                  standard by specified dates. Such TRU                   in compliance with federal and state                   if California determines that California
                                                  engines that are 2001 MY and older are                  engine rebuilding requirements for off-                standards will be, in the aggregate, at
                                                  given an extension to December 31,                      road compression ignition engines.7                    least as protective of public health and
                                                                                                          CARB’s TRU regulations allow TRU                       welfare as applicable Federal standards.
                                                  2016 for the ULETRU deadline, 2002
                                                                                                                                                                 However, EPA shall not grant such
                                                  MY TRUs are given a new deadline of                     owners to utilize hybrid electric, hybrid
                                                                                                                                                                 authorization if it finds that (1) the
                                                  December 31, 2017, and 2003 MY TRUs                     cryogenic, and electric-standby (‘‘E/S’’)
                                                                                                                                                                 determination of California is arbitrary
                                                  are given a new deadline of December                    equipped TRUs as an ‘‘Alternative
                                                                                                                                                                 and capricious; (2) California does not
                                                  31, 2018. The Within-the-Scope                          technology’’ compliance option, which
                                                                                                                                                                 need such California standards to meet
                                                  Amendments also provide up to a one-                    requires such TRUs to be operated in a
                                                                                                                                                                 compelling and extraordinary
                                                  year extension of the compliance dates                  manner that eliminates diesel engine                   conditions; or (3) California standards
                                                  if owners demonstrate that compliant                    operations at the facilities where the                 and accompanying enforcement
                                                  technology is unavailable or is delayed                 TRUs operate. The Full Authorization                   procedures are not consistent with
                                                  due to financing, delivery, or                          Amendments establish new                               [CAA section 209].9
                                                  installation and provides other                         recordkeeping requirements that will                      On July 20, 1994, EPA promulgated a
                                                  flexibilities based upon certain                        require the application of hardware to                 rule interpreting the three criteria set
                                                  requirements. In addition, the Within-                  monitor the engine hour usage of the                   forth in section 209(e)(2)(A) that EPA
                                                  the-Scope Amendments provide a host                     TRUs along with other automated                        must consider before granting any
                                                  of new or clarified exemptions                          monitoring, recordkeeping and                          California authorization request for
                                                  including: (1) Clarification that non-                  reporting requirements. In addition, the               nonroad engine or vehicle emission
                                                  operational TRUs are generally exempt                   TRU regulations now cover business                     standards.10 EPA revised these
                                                  from compliance with the performance                    entities that arrange, hire, contract for,
                                                  standards, but are still prohibited from                or dispatch the transport of perishable                   8 States are expressly preempted from adopting or

                                                  being sold, rented or leased to a person                goods in TRU-equipped trucks, trailers,                attempting to enforce any standard or other
                                                                                                          shipping containers, or railcars. Lastly,              requirement relating to the control of emissions
                                                  that could reasonably be expected to                                                                           from new nonroad engines which are used in
                                                  operate such TRUs in California; (2) a                  the Full Authorization Amendments                      construction equipment or vehicles or used in farm
                                                  limited exemption for TRU-equipped                      create new disclosure requirements for                 equipment or vehicles and which are smaller than
                                                  trucks and trailers used by mobile                      TRU original equipment manufacturers                   175 horsepower. Such express preemption under
                                                                                                          that are primarily designed to address                 section 209(e)(1) of the Act also applies to new
                                                  catering companies to feed emergency                                                                           locomotives or new engines used in locomotives.
                                                  responders, such as firefighters (such                  engine emission labels on new                          CAA § 209(e)(1), 42 U.S.C. 7543(e)(1)(A).
                                                  engines are subject to registration and                 replacement engines and new flexibility                   9 EPA’s review of California regulations under

                                                  other requirements); (3) an exemption                   engines, as well as disclosure                         section 209 is not a broad review of the
                                                                                                          requirements for dealers and repair                    reasonableness of the regulations or its
                                                  for non-compliant, non-operational                                                                             compatibility with all other laws. Sections 209(b)
                                                  TRUs on refrigerated railcars that travel               shops in order that the ARBER                          and 209(e) of the Clean Air Act limit EPA’s
                                                  through California based on CARB’s                      registration information is supplied to                authority to deny California requests for waivers
                                                  Executive Officer approval under                        the end-user.                                          and authorizations to the three criteria listed
                                                                                                                                                                 therein. As a result, EPA has consistently refrained
                                                  certain contingencies; and (4) an                                                                              from denying California’s requests for waivers and
                                                                                                             6 See CARB’s Authorization Support Document.
                                                  exemption for railway carriers from the                                                                        authorizations based on any other criteria. In
                                                                                                          CARB’s Within-the-Scope Amendments also                instances where the U.S. Court of Appeals has
                                                  owner/operator requirements for TRUs                    include those provisions referenced at page 11         reviewed EPA decisions declining to deny waiver
                                                  not owned by the railway carrier. Lastly,               (allowance of California TRU dealers to acquire        requests based on criteria not found in section
                                                  the Within-the-Scope Amendments                         non-compliant TRUs under certain conditions),          209(b), the Court has upheld and agreed with EPA’s
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                                                  clarify that the in-use performance                     pages 13–14 (clarification on the prohibition of       determination. See Motor and Equipment
                                                                                                          selling non-compliant TRUs), page 15 (allowance of     Manufacturers Ass’n v. Nichols, 142 F.3d 449, 462–
                                                  standards and associated compliance                     the use of unique identification numbers instead of    63, 466–67 (D.C. Cir. 1998), Motor and Equipment
                                                  deadlines are to be based on the year the               a CARB identification number), and page 16             Manufacturers Ass’n v. EPA, 627 F.2d 1095, 1111,
                                                  TRU unit itself was manufactured                        (clarification of the registration requirements and    1114–20 (D.C. Cir. 1979). See also 78 FR 58090,
                                                  (including the potential for a prior                    consistency with current CARB Equipment                58120 (September 20, 2013).
                                                                                                          Registration (‘‘ARBER’’) system screens).                 10 See ‘‘Air Pollution Control; Preemption of State
                                                  model year TRU engine to be installed                      7 40 CFR 89.130 and 1068.120 and Cal. Code          Regulation for Nonroad Engine and Vehicle
                                                  in limited circumstances), instead of                   Regs. Tit. 13., section 2423(l), respectively.         Standards,’’ 59 FR 36969 (July 20, 1994).



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                                                                               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                                         6527

                                                  regulations in 1997.11 As stated in the                  under section 209(b).15 These principles                  review if three conditions are met. First,
                                                  preamble to the 1994 rule, EPA                           include, among other things, that EPA                     the amended regulations must not
                                                  historically has interpreted the                         should limit its inquiry to the three                     undermine California’s previous
                                                  consistency inquiry under the third                      specific authorization criteria identified                determination that its standards, in the
                                                  criterion, outlined above and set forth in               in section 209(e)(2)(A),16 and that EPA                   aggregate, are as protective of public
                                                  section 209(e)(2)(A)(iii), to require, at                should give substantial deference to the                  health and welfare as applicable federal
                                                  minimum, that California standards and                   policy judgments California has made in                   standards. Second, the amended
                                                  enforcement procedures be consistent                     adopting its regulations. In previous                     regulations must not affect consistency
                                                  with section 209(a), section 209(e)(1),                  waiver decisions, EPA has stated that                     with section 209 of the Act, following
                                                  and section 209(b)(1)(C) of the Act.12                   Congress intended EPA’s review of                         the same criteria discussed above in the
                                                                                                           California’s decision-making be narrow.                   context of full authorizations. Third, the
                                                    In order to be consistent with section
                                                                                                           EPA has rejected arguments that are not                   amended regulations must not raise any
                                                  209(a), California’s nonroad standards
                                                                                                           specified in the statute as grounds for                   new issues affecting EPA’s prior waiver
                                                  and enforcement procedures must not
                                                                                                           denying a waiver:                                         or authorization decisions.19
                                                  apply to new motor vehicles or new
                                                  motor vehicle engines. To be consistent                     The law makes it clear that the waiver                 D. Deference to California
                                                  with section 209(e)(1), California’s                     requests cannot be denied unless the specific
                                                                                                           findings designated in the statute can                      In previous waiver decisions, EPA has
                                                  nonroad standards and enforcement                        properly be made. The issue of whether a                  recognized that the intent of Congress in
                                                  procedures must not attempt to regulate                  proposed California requirement is likely to              creating a limited review based on the
                                                  engine categories that are permanently                   result in only marginal improvement in                    section 209(b)(1) criteria was to ensure
                                                  preempted from state regulation. To                      California air quality not commensurate with              that the federal government did not
                                                  determine consistency with section                       its costs or is otherwise an arguably unwise
                                                                                                           exercise of regulatory power is not legally               second-guess state policy choices. As
                                                  209(b)(1)(C), EPA typically reviews                                                                                the agency explained in one prior
                                                                                                           pertinent to my decision under section 209,
                                                  nonroad authorization requests under                                                                               waiver decision:
                                                                                                           so long as the California requirement is
                                                  the same ‘‘consistency’’ criteria that are               consistent with section 202(a) and is more
                                                  applied to motor vehicle waiver                                                                                       It is worth noting * * * I would feel
                                                                                                           stringent than applicable Federal                         constrained to approve a California approach
                                                  requests under section 209(b)(1)(C).                     requirements in the sense that it may result              to the problem which I might also feel unable
                                                  That provision provides that the                         in some further reduction in air pollution in             to adopt at the federal level in my own
                                                  Administrator shall not grant California                 California.17                                             capacity as a regulator. The whole approach
                                                  a motor vehicle waiver she finds that                      This principle of narrow EPA review                     of the Clean Air Act is to force the
                                                  California ‘‘standards and                               has been upheld by the U.S. Court of                      development of new types of emission
                                                  accompanying enforcement procedures                      Appeals for the District of Columbia                      control technology where that is needed by
                                                  are not consistent with section 202(a)’’                 Circuit.18 Thus, EPA’s consideration of                   compelling the industry to ‘‘catch up’’ to
                                                  of the Act. Previous decisions granting                                                                            some degree with newly promulgated
                                                                                                           all the evidence submitted concerning
                                                                                                                                                                     standards. Such an approach * * * may be
                                                  waivers and authorizations have noted                    an authorization decision is                              attended with costs, in the shape of reduced
                                                  that state standards and enforcement                     circumscribed by its relevance to those                   product offering, or price or fuel economy
                                                  procedures will be found to be                           questions that may be considered under                    penalties, and by risks that a wider number
                                                  inconsistent with section 202(a) if (1)                  section 209(e)(2)(A).                                     of vehicle classes may not be able to
                                                  there is inadequate lead time to permit                                                                            complete their development work in time.
                                                                                                           C. Within-the-Scope Determinations                        Since a balancing of these risks and costs
                                                  the development of the necessary
                                                  technology, giving appropriate                             If California amends regulations that                   against the potential benefits from reduced
                                                  consideration to the cost of compliance                  have been previously authorized by                        emissions is a central policy decision for any
                                                                                                           EPA, California may ask EPA to                            regulatory agency under the statutory scheme
                                                  within that time,13 or (2) the federal and                                                                         outlined above, I believe I am required to
                                                  state testing procedures impose                          determine that the amendments are
                                                                                                                                                                     give very substantial deference to California’s
                                                  inconsistent certification                               within the scope of the earlier
                                                                                                                                                                     judgments on this score.20
                                                  requirements.14                                          authorization. A within-the-scope
                                                                                                           determination for such amendments is                        Similarly, EPA has stated that the
                                                    In light of the similar language in                    permissible without a full authorization                  text, structure, and history of the
                                                  sections 209(b) and 209(e)(2)(A), EPA                                                                              California waiver provision clearly
                                                  has reviewed California’s requests for                     15 See Engine Manufacturers Association v. EPA,         indicate both a congressional intent and
                                                  authorization of nonroad vehicle or                      88 F.3d 1075, 1087 (D.C. Cir. 1996): ‘‘. . . EPA was      appropriate EPA practice of leaving the
                                                  engine standards under section                           within the bounds of permissible construction in          decision on ‘‘ambiguous and
                                                  209(e)(2)(A) using the same principles                   analogizing § 209(e) on nonroad sources to § 209(a)
                                                                                                           on motor vehicles.’’                                      controversial matters of public policy’’
                                                  that it has historically applied in                        16 See EPA’s Final 209(e) rulemaking at 59 FR           to California’s judgment.21 This
                                                  reviewing requests for waivers of                        36969, 36983 (July 20, 1994).                             interpretation is supported by relevant
                                                  preemption for new motor vehicle or                        17 ‘‘Waiver of Application of Clean Air Act to
                                                                                                                                                                     discussion in the House Committee
                                                  new motor vehicle engine standards                       California State Standards,’’ 36 FR 17458 (Aug. 31,       Report for the 1977 amendments to the
                                                                                                           1971). Note that the more stringent standard
                                                                                                           expressed here, in 1971, was superseded by the            Clean Air Act.22 Congress had the
                                                    11 See ‘‘Control of Air Pollution: Emission
                                                                                                           1977 amendments to section 209, which established         opportunity through the 1977
                                                  Standards for New Nonroad Compression-Ignition           that California must determine that its standards         amendments to restrict the preexisting
                                                  Engines at or Above 37 Kilowatts; Preemption of          are, in the aggregate, at least as protective of public
                                                  State Regulation for Nonroad Engine and Vehicle                                                                    waiver provision, but elected instead to
                                                                                                           health and welfare as applicable Federal standards.
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                                                  Standards; Amendments to Rules,’’ 62 FR 67733            In the 1990 amendments to section 209, Congress
                                                  (December 30, 1997). The applicable regulations are      established section 209(e) and similar language in
                                                                                                                                                                       19 See ‘‘California State Motor Vehicle Pollution

                                                  now found in 40 CFR part 1074, subpart B, section        section 209(e)(1)(i) pertaining to California’s           Control Standards; Amendments Within the Scope
                                                  1074.105.                                                nonroad emission standards which California must          of Previous Waiver of Federal Preemption,’’ 46 FR
                                                    12 59 FR 36969 (July 20, 1994). EPA has
                                                                                                           determine to be, in the aggregate, at least as            36742 (July 15, 1981).
                                                  interpreted 209(b)(1)(C) in the context of section       protective of public health and welfare as                  20 40 FR 23102, 23103–23104 (May 28, 1975).

                                                  209(b) motor vehicle waivers.                            applicable federal standards.                               21 Id. at 23104; 58 FR 4166 (January 13, 1993).
                                                    13 H. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967).     18 See, e.g., Motor and Equip. Mfrs Assoc. v. EPA,        22 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No.
                                                    14 S. Rep. No. 403, 90th Cong., 1st Sess. 32 (1967).   627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’).              294, 95th Cong., 1st Sess. 301–302 (1977)).



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                                                  6528                          Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                  expand California’s flexibility to adopt a               enforcement procedure.’’ Those findings                F. EPA’s Administrative Process in
                                                  complete program of motor vehicle                        involve: (1) Whether the enforcement                   Consideration of California’s Request for
                                                  emission controls. The report explains                   procedures impact California’s prior                   Authorization of the 2011 TRU
                                                  that the amendment is intended to ratify                 protectiveness determination for the                   Amendments
                                                  and strengthen the preexisting                           associated standards, and (2) whether                     The CAA directs EPA to offer an
                                                  California waiver provision and to                       the procedures are consistent with                     opportunity for public hearing on
                                                  affirm the underlying intent of that                     section 202(a). The principles set forth               authorization requests from California.
                                                  provision, that is, to afford California                 by the court, however, are similarly                   On November 17, 2015, EPA published
                                                  the broadest possible discretion in                      applicable to an EPA review of a request               a Federal Register notice announcing an
                                                  selecting the best means to protect the                  for a waiver of preemption for a                       opportunity for written comment and
                                                  health of its citizens and the public                    standard. The court instructed that ‘‘the              offering a public hearing on California’s
                                                  welfare.23                                               standard of proof must take account of                 request for authorization of the 2011
                                                  E. Burden and Standard of Proof                          the nature of the risk of error involved               TRU Amendments.32 The request for
                                                                                                           in any given decision, and it therefore                comments specifically included, but
                                                    As the U.S. Court of Appeals for the
                                                                                                           varies with the finding involved. We                   was not limited to, the following issues.
                                                  D.C. Circuit has made clear in MEMA I,                                                                             First, EPA requested comment on
                                                  opponents of a California waiver request                 need not decide how this standard
                                                                                                           operates in every waiver decision.’’ 28                whether the 2011 amendments for
                                                  bear the burden of showing that the                                                                             which CARB requested a within-the-
                                                  statutory criteria for a denial of the                      With regard to the protectiveness                   scope determination should be
                                                  request have been met:                                   finding, the court upheld the                          considered under a within-the-scope
                                                    [T]he language of the statute and its                  Administrator’s position that, to deny a               analysis. We specifically requested
                                                  legislative history indicate that California’s           waiver, there must be ‘‘clear and                      comment on whether the Within-the-
                                                  regulations, and California’s determinations             compelling evidence’’ to show that                     Scope Amendments (1) undermine
                                                  that they must comply with the statute, when
                                                  presented to the Administrator are presumed
                                                                                                           proposed enforcement procedures                        California’s previous determination that
                                                  to satisfy the waiver requirements and that              undermine the protectiveness of                        its standards, in the aggregate, are at
                                                  the burden of proving otherwise is on                    California’s standards.29 The court                    least as protective of public health and
                                                  whoever attacks them. California must                    noted that this standard of proof also                 welfare as comparable federal standards,
                                                  present its regulations and findings at the              accords with the congressional intent to               (2) affect the consistency of California’s
                                                  hearing and thereafter the parties opposing              provide California with the broadest                   requirement with section 209 of the Act,
                                                  the waiver request bear the burden of                                                                           or (3) raise any other new issue affecting
                                                  persuading the Administrator that the waiver             possible discretion in setting regulations
                                                  request should be denied.24                              it finds protective of the public health               EPA’s previous authorization
                                                                                                           and welfare.30                                         determinations.
                                                     The Administrator’s burden, on the                                                                              Second, EPA requested comment on
                                                  other hand, is to make a reasonable                         With respect to the consistency                     whether the Within-the-Scope
                                                  evaluation of the information in the                     finding, the court did not articulate a                Amendments would satisfy the criteria
                                                  record in coming to the waiver decision.                 standard of proof applicable to all                    for full authorization if they do not meet
                                                  As the court in MEMA I stated: ‘‘here,                   proceedings, but found that the                        the criteria for within-the-scope
                                                  too, if the Administrator ignores                        opponents of the waiver were unable to                 analysis.
                                                  evidence demonstrating that the waiver                   meet their burden of proof even if the                    Third, EPA sought comment on
                                                  should not be granted, or if he seeks to                 standard were a mere preponderance of                  whether the Full Authorization
                                                  overcome that evidence with                              the evidence. Although MEMA I did not                  Amendments, for which CARB
                                                  unsupported assumptions of his own,                      explicitly consider what the standards                 requested full authorization, satisfy the
                                                  he runs the risk of having his waiver                    of proof would be under section 209                    full authorization criteria. We
                                                  decision set aside as ‘arbitrary and                     concerning a waiver request for                        specifically requested comment on
                                                  capricious.’’’ 25 Therefore, the                         ‘‘standards,’’ as compared to a waiver                 whether (1) California’s protectiveness
                                                  Administrator’s burden is to act                         request for accompanying enforcement                   determination (i.e., that California
                                                  ‘‘reasonably.’’ 26                                       procedures, there is nothing in the                    standards will be, in the aggregate, as
                                                     With regard to the standard of proof,                                                                        protective of public health and welfare
                                                                                                           opinion to suggest that the court’s
                                                  the court in MEMA I explained that the                                                                          as applicable federal standards) is
                                                                                                           analysis would not apply with equal
                                                  Administrator’s role in a section 209                                                                           arbitrary and capricious, (2) California
                                                  proceeding is to:                                        force to such determinations. EPA’s past
                                                                                                           waiver decisions have consistently                     does not need such standards to meet
                                                    [. . .]consider all evidence that passes the                                                                  compelling and extraordinary
                                                                                                           made clear that: ‘‘[E]ven in the two areas
                                                  threshold test of materiality and * * *                                                                         conditions, or (3) the California
                                                  thereafter assess such material evidence                 concededly reserved for Federal
                                                                                                                                                                  standards and accompanying
                                                  against a standard of proof to determine                 judgment by this legislation—the                       enforcement procedures are not
                                                  whether the parties favoring a denial of the             existence of ‘compelling and                           consistent with section 209 of the Act.
                                                  waiver have shown that the factual                       extraordinary’ conditions and whether                     EPA received no request for a public
                                                  circumstances exist in which Congress                    the standards are technologically
                                                  intended a denial of the waiver.27                                                                              hearing. Consequently, EPA did not
                                                                                                           feasible—Congress intended that the                    hold a public hearing. EPA received one
                                                    In that decision, the court considered                 standards of EPA review of the State                   written comment and a response
                                                  the standards of proof under section 209                 decision to be a narrow one.’’ 31                      comment from CARB, discussed below.
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                                                  for the two findings related to granting
                                                  a waiver for an ‘‘accompanying                                                                                  II. Discussion
                                                                                                             28 Id.

                                                                                                             29 Id.
                                                                                                                                                                  A. Within-The-Scope Analysis
                                                    23 Id.
                                                    24 MEMA    I, at 1121.                                   30 Id.                                                 We initially evaluate California’s
                                                    25 Id. at 1126.                                          31 See, e.g., ‘‘California State Motor Vehicle       Within-the-Scope Amendments by
                                                    26 Id. at 1126.                                        Pollution Control Standards; Waiver of Federal
                                                    27 Id. at 1122.                                        Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103.      32 80   FR 71791 (November 17, 2015).



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                                                                               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                                    6529

                                                  application of our traditional within-                  extraordinary conditions; or (3)                       2. Whether the Standards Are Necessary
                                                  the-scope analysis, as CARB requested.                  California’s standards and                             To Meet Compelling and Extraordinary
                                                  If we determine that CARB’s request                     accompanying enforcement procedures                    Conditions
                                                  does not meet the requirements for a                    are not consistent with this section.
                                                  within-the-scope determination, we                         EPA’s evaluation of the 2011 TRU                      Section 209(e)(2)(A)(ii) instructs that
                                                  then evaluate the request based on a full               Amendments, including the Within-the-                  EPA cannot grant an authorization if the
                                                  authorization analysis. In determining                  Scope Amendments and Full                              Agency finds that California ‘‘does not
                                                  whether amendments can be viewed as                     Authorization Amendments, is set forth                 need such California standards to meet
                                                  within the scope of previous waivers,                   below. Because of the similarity of the                compelling and extraordinary
                                                  EPA looks at whether CARB’s revision                    within-the-scope criteria and the full                 conditions . . . .’’ EPA’s inquiry under
                                                  has been limited to making minor                        authorization criteria, a discussion of                this second criterion (found both in
                                                  technical amendments to previously                      both sets of respective amendments take                paragraphs 209(b)(1)(B) and
                                                  waived regulations or modifying the                     place within each authorization                        209(e)(2)(A)(ii)) has been to determine
                                                  regulations in order to provide                         criterion. To the extent that the criteria             whether California needs its own mobile
                                                  manufacturers with additional                           are applied uniquely, or that additional               source pollution program (i.e. set of
                                                  compliance flexibilities without                        criteria apply under either the within-                standards) for the relevant class or
                                                  significantly reducing the overall                      the-scope analysis or the full                         category of vehicles or engines to meet
                                                  stringency of the requirements. The                     authorization analysis, such application               compelling and extraordinary
                                                  Within-the-Scope Amendments at issue                    is also addressed below.                               conditions, and not whether the specific
                                                  in this request provide for certain                                                                            standards that are the subject of the
                                                  compliance extensions and certain                       1. California’s Protectiveness                         authorization or waiver request are
                                                  exemptions from the TRU in-use                          Determination                                          necessary to meet such conditions.35
                                                  performance standards. The Within-the                      In its March 2, 2015 letter requesting                EPA does not examine the section
                                                  Scope Amendments also clarify pre-                      a within-the-scope determination, CARB                 209(e)(2)(A)(ii) criterion in the context
                                                  existing requirements.                                  stated that in approving the                           of within-the-scope requests since the
                                                     EPA sought comment on a range of                     amendments to the TRU ATCM, the                        original regulations (that received a
                                                  issues, including those applicable to a                 Board approved Resolution 11–35.33                     previous authorization from EPA) have
                                                  within-the-scope analysis as well as                    The Board expressly declared ‘‘. . . that              already been evaluated under this
                                                  those applicable to a full authorization                the Board hereby determines that                       criterion. However, should CARB adopt
                                                  analysis. No party submitted a comment                  pursuant to Title II, section 209(e)(2) of             amendments that require a full
                                                  that California’s Within-the-Scope                      the federal Clean Air Act, as amended                  authorization assessment (e.g. the
                                                  Amendments require a full                               in 1990, that the emission standards and               addition of more stringent emission
                                                  authorization analysis. Given the lack of               other requirements related to the control              standards, etc.) then EPA believes it is
                                                  comments on this issue, and EPA’s                       of emissions adopted as part of the                    appropriate to reevaluate whether
                                                  assessment of the nature of the                         amendments to the TRU ATCM are, in                     California continues to demonstrate the
                                                  amendments, EPA will evaluate                           the aggregate, at least as protective of               need for its own mobile source program.
                                                  California’s Within-the-Scope                           public health and welfare as applicable                EPA’s assessment of the Full
                                                  Amendments by application of our                        federal standards.’’ 34 CARB noted that                Authorization Amendments under this
                                                  traditional within-the-scope analysis, as               EPA cannot find CARB’s determination                   criterion is set forth below.
                                                  CARB requested.                                         to be arbitrary and capricious for the
                                                     EPA can confirm that amended                                                                                  California has asserted its
                                                                                                          reason that EPA does not have                          longstanding position that the State
                                                  regulations are within the scope of a                   comparable federal emission standards
                                                  previously granted waiver of                                                                                   continues to need its own nonroad
                                                                                                          that regulate in-use TRUs and TRU                      engine program to meet serious air
                                                  preemption if three conditions are met.                 engines.
                                                  First, the amended regulations must not                                                                        pollution problems.36 The relevant
                                                                                                             After evaluating the materials                      inquiry under section 209(e)(2)(A)(ii) is
                                                  undermine California’s determination                    submitted by CARB, and since EPA has
                                                  that its standards, in the aggregate, are                                                                      whether California needs its own
                                                                                                          not adopted any standards or                           emission control program to meet
                                                  as protective of public health and                      requirements for in-use TRU systems or
                                                  welfare as applicable federal standards.                                                                       compelling and extraordinary
                                                                                                          engines, and based on no comments                      conditions, not whether any given
                                                  Second, the amended regulations must                    submitted to the record, I cannot find
                                                  not affect consistency with section                                                                            standard is necessary to meet such
                                                                                                          that California’s TRU amendments                       conditions.37
                                                  202(a) of the Act. Third, the amended                   undermine California’s previous
                                                  regulations must not raise any ‘‘new                    determination that its standards, in the                 There has been no evidence submitted
                                                  issues’’ affecting EPA’s prior                          aggregate, are at least as protective of               to indicate that California’s compelling
                                                  authorizations.                                         public health and welfare as applicable                and extraordinary conditions do not
                                                                                                          federal standards. Thus I cannot deny                  continue to exist. California, including
                                                  B. Full Authorization Analysis                                                                                 the South Coast and the San Joaquin
                                                                                                          CARB’s within-the-scope request based
                                                    As noted above, CARB’s authorization                                                                         Valley air basins, continues to
                                                                                                          on this criterion. Similarly, with regard
                                                  request also included the Full                                                                                 experience some of the worst air quality
                                                                                                          to the Full Authorization Amendments
                                                  Authorization Amendments. EPA must                                                                             in the nation and continues to be in
                                                                                                          I cannot make a finding that CARB’s
                                                  grant an authorization of the Full                                                                             non-attainment with national ambient
                                                                                                          protectiveness determination is arbitrary
                                                  Authorization Amendments unless the
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                                                                                                          and capricious and thus I cannot deny
                                                  Administrator finds: (1) California’s                                                                            35 See 74 FR 32744, 32761 (July 8, 2009); 49 FR
                                                                                                          CARB’s Full Authorization
                                                  determination that its standards will be,                                                                      18887, 18889–18890 (May 3, 1984).
                                                                                                          Amendments based on this criterion.
                                                  in the aggregate, as protective of public                                                                        36 See Authorization Support Document at 23, ‘‘In

                                                  health and welfare as applicable federal                                                                       adopting Resolution 11–35, the Board confirmed
                                                                                                            33 See Authorization Support Document at 18–19.      CARB’s longstanding position that California
                                                  standards is arbitrary and capricious; (2)              See also EPA–HQ–OAR–2015–0224–0002,                    continues to need its own nonroad engine program
                                                  California does not need such California                Attachment 6.                                          to meet serious air pollution problems.’’
                                                  standards to meet compelling and                          34 Id.                                                 37 Id.




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                                                  6530                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                  air quality standards for fine particulate              section 209(b) which allows California                 procedures conflicted. The scope of
                                                  matter (PM2.5) and ozone.38                             to set such standards if other statutory               EPA’s review of whether California’s
                                                     We received no contrary evidence or                  requirements are met. To find a                        action is consistent with section 202(a)
                                                  comments contesting California’s                        standard to be inconsistent with section               is narrow. The determination is limited
                                                  longstanding determination that its TRU                 209(a) for purposes of section                         to whether those opposed to the
                                                  ATCM program is needed to address the                   209(e)(2)(A)(iii), EPA must find that the              authorization or waiver have met their
                                                  state’s compelling and extraordinary                    standard in question actually regulates                burden of establishing that California’s
                                                  conditions, nor did we receive any                      new motor vehicles or new motor                        standards are technologically infeasible,
                                                  suggestion that CARB’s nonroad                          vehicle engines.                                       or that California’s test procedures
                                                  program is not still necessary. In                        To be consistent with section                        impose requirements inconsistent with
                                                  addition, EPA is not aware of any other                 209(e)(1) of the Clean Air Act,                        the federal test procedures.41
                                                  information that would suggest that                     California’s standards or other
                                                  California no longer needs its nonroad                  requirements relating to the control of                   The legislative history of section 209
                                                  emission program. Therefore, based on                   emissions must not relate to new                       (including the ‘‘consistency with section
                                                  the record of this request and absence of               engines which are used in farm or                      202(a)’’ requirement in 209(b)(1)(C))
                                                  comments or other information to the                    construction equipment or vehicles and                 indicates that this provision is intended
                                                  contrary, I cannot find that California                 which are smaller than 175 horsepower                  to relate to technological feasibility.42
                                                  does not continue to need such state                    (hp), and new locomotives or new                       Section 202(a)(2) states, in relevant part,
                                                  standards, including the 2011 TRU                       engines used in locomotives.                           that any regulation promulgated under
                                                  Amendments, to address the                                In its authorization request, CARB                   its authority ‘‘shall take effect after such
                                                  ‘‘compelling and extraordinary                          states that in granting an authorization               period as the Administrator finds
                                                  conditions’’ underlying the state’s air                 for the initial TRU ATCM regulation,                   necessary to permit the development
                                                  pollution problems.                                     EPA found that the TRU ATCM was                        and application of the requisite
                                                                                                          consistent with CAA sections 209(a) and                technology, giving appropriate
                                                  3. Consistency With Section 209 of the                                                                         consideration to the cost of compliance
                                                                                                          209(e)(1) because the ATCM did not
                                                  Clean Air Act                                                                                                  within such period.’’ Section 202(a)
                                                                                                          apply to new motor vehicles and
                                                     Section 209(e)(2)(A)(iii) of the Act                 engines or to new engines under 175 hp                 thus requires the Administrator to first
                                                  instructs that EPA cannot grant an                      used in farm and construction vehicles                 determine whether adequate technology
                                                  authorization if California’s standards                 or equipment or to new locomotives or                  already exists; or if it does not, whether
                                                  and enforcement procedures are not                      locomotive engines.40 CARB notes that                  there is adequate time to develop and
                                                  consistent with ‘‘this section.’’ As                    the 2011 TRU Amendments likewise do                    apply the technology before the
                                                  described above, EPA’s section 209(e)                   not apply to the above categories of                   standards go into effect. The latter
                                                  rule states that the Administrator shall                preempted mobile sources and thus EPA                  scenario also requires the Administrator
                                                  not grant authorization to California if                cannot find that such amendments are                   to decide whether the cost of developing
                                                  she finds (among other tests) that the                  inconsistent with section 209(a) and                   and applying the technology within that
                                                  ‘‘California standards and                              209(e)(1). No commenter argued the                     time is feasible. Previous EPA waivers
                                                  accompanying enforcement procedures                     contrary or otherwise asserted that the                are in accord with this position.43
                                                  are not consistent with section 209.’’                  2011 TRU Amendments are not                               With regard to the Within-the-Scope
                                                  EPA has interpreted the requirement to                  consistent with section 209(a) and                     Amendments, CARB notes that the
                                                  mean that California standards and                      209(e)(1) and EPA is otherwise not                     amendments are designed to provide
                                                  accompanying enforcement procedures                     aware of such evidence.
                                                  must be consistent with at least section                                                                       owners with greater flexibility to
                                                                                                            Therefore, I cannot deny California’s                comply with the existing TRU ATCM’s
                                                  209(a), section 209(e)(1), and section                  request on the basis that 2011 TRU
                                                  209(b)(1)(C), as EPA has interpreted this                                                                      in-use requirements. The amendments
                                                                                                          Amendments are not consistent with                     were not the result of non-existing
                                                  last subsection in the context of motor                 section 209(a) and section 209(e)(1).
                                                  vehicle waivers.39 Thus, this can be                                                                           technologies according to CARB, but
                                                  viewed as a three-pronged test.                         b. Consistency With Section 209(b)(1)(C)               rather that the Board determined that
                                                                                                                                                                 special considerations were necessary to
                                                  a. Consistency With Section 209(a) and                     The requirement that California’s
                                                                                                                                                                 accommodate TRU owners during
                                                  209(e)(1)                                               standards be consistent with section
                                                                                                                                                                 implementation of the rule, including
                                                                                                          209(b)(1)(C) of the Clean Air Act
                                                     Section 209(a) of the Clean Air Act                                                                         the availability of certain diesel
                                                                                                          effectively requires consistency with
                                                  prohibits states or any political                                                                              emission control devices or the
                                                                                                          section 202(a) of the Act. To determine
                                                  subdivisions of states from setting                                                                            availability of cleaner Tier 4 standard
                                                                                                          this consistency, EPA has applied to
                                                  emission standards for new motor                                                                               engines in the later model years. With
                                                                                                          California nonroad standards the same
                                                  vehicles or new motor vehicle engines.                                                                         regard to the amendments that specify
                                                                                                          test it has used previously for California
                                                  Section 209(a) is modified in turn by                                                                          requirements for repowering TRUs with
                                                                                                          motor vehicle standards; namely, state
                                                                                                                                                                 new replacement engines and the
                                                                                                          standards are inconsistent with section
                                                    38 74 FR 32744, 32762–63 (July 8, 2009), 76 FR                                                               allowance for owners to repower TRUs
                                                                                                          202(a) of the Act if there is inadequate
                                                  77515, 77518 (December 13, 2011), 81 FR 95982                                                                  with rebuilt engines, CARB notes that
                                                  (December 29, 2016). EPA continually evaluates the      lead-time to permit the development of
                                                                                                                                                                 these amendments do not modify the
                                                  air quality conditions in the United States,            technology necessary to meet those
                                                  including California. California continues to                                                                  pre-existing compliance dates that EPA
                                                                                                          requirements, giving appropriate
                                                  experience some of the worst air quality in the                                                                previously authorized and EPA has
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                                                  country and continues to be in nonattainment with       consideration to the cost of compliance
                                                                                                                                                                 previously addressed rebuilding
                                                  National Ambient Air Quality Standards for fine         within that timeframe. California’s
                                                  particulate matter and ozone, see ‘‘Notice of           accompanying enforcement procedures                      41 MEMA
                                                  Availability of the Environmental Protection                                                                                 I, 627, F.2d at 1126.
                                                  Agency’s Preliminary Interstate Ozone Transport
                                                                                                          would also be inconsistent with section                  42 H.R.   Rep. No. 95–294, 95th Cong., 1st Sess. 301
                                                  Modeling Data for the 2015 Ozone National               202(a) if federal and California test                  (1977).
                                                  Ambient Air Quality Standard (NAAQS)’’ at EPA–                                                                   43 See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43
                                                  HQ–OAR–2016–0751.                                         40 See   Authorization Support Document at page      FR 32182, 32183 (July 25, 1978); 41 FR 44209,
                                                    39 See 59 FR 36969 (July 20, 1994).                   19.                                                    44213 (October 7, 1976).



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                                                                               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                            6531

                                                  requirements.44 CARB also notes that                     Technology TRUs are subject to                        to our prior granting of the
                                                  several of its Full Authorization                        reporting requirements that include the               authorization. Moreover, EPA did not
                                                  Amendments help ensure that the TRU                      address of each stationary location                   receive any comments that CARB’s TRU
                                                  ATCM is effectively implemented and                      where such a TRU was operated longer                  Amendments raised new issues
                                                  enforced, and therefore constitute                       than five minutes. CARB states that                   affecting the previously granted
                                                  ‘‘accompanying enforcement                               ‘‘Thermo King does not describe why or                authorization. Therefore, I cannot find
                                                  provisions’’ (‘‘AEPs’’).45 CARB notes                    how the current 5-minute stationary                   that CARB’s Within-the-Scope
                                                  that the AEPs that pertain to new                        requirement may be causing confusion                  Amendments raise new issues and
                                                  automated monitoring, recordkeeping                      and/or false stationary readings.                     consequently, cannot deny CARB’s
                                                  and reporting requirements for E/S,                      Furthermore, Thermo King has                          request based on this criterion.
                                                  hybrid-electric, and hybrid cryogenic                    presented no evidence to support its                  III. Decision
                                                  TRUs present no issues regarding                         argument that the five-minute
                                                  technical feasibility. CARB maintains                    requirement will result in confusion or                  After evaluating CARB’s 2011 TRU
                                                  that the technology needed to comply                     erroneous readings.’’ 49                              Amendments described above, EPA is
                                                  with the reporting requirements already                     As noted above, EPA’s determination                taking the following actions. First, I am
                                                  exists and the GPS tracking systems are                  is limited to whether those opposed to                granting an authorization for the Full
                                                  already being used and are capable of                    the authorization or waiver have met                  Authorization Amendments. Second, I
                                                  wirelessly transmitting reports and                      their burden of establishing that                     confirm that the Within-the-Scope
                                                  data.46                                                  California’s standards are                            Amendments are within the scope of the
                                                     EPA received comment                                  technologically infeasible. I agree that              previous EPA authorizations.
                                                  acknowledging that the technology for                    the Within-the-Scope Amendments are                      This decision will affect persons not
                                                  data collection and record reporting                     designed to relax (i.e. extend the                    only in California, but also
                                                  currently exists, but that additional                    compliance deadlines in limited                       manufacturers and/or owners/operators
                                                  development will be necessary to ensure                  circumstances and provide additional                  nationwide who must comply with
                                                  that the technology will provide the                     exemptions) and clarify existing TRU                  California’s requirements. In addition,
                                                  necessary information for reporting                      ATCM requirements and therefore                       because other states may adopt
                                                  purposes while also providing the                        provide additional flexibility to                     California’s standards for which a
                                                  necessary security and safeguards to                     regulated parties. EPA also did not                   section 209(e)(2)(A) authorization has
                                                  protect proprietary information of both                  receive any comments arguing that the                 been granted if certain criteria are met,
                                                  the original equipment manufacturers                     Within-the-Scope Amendments were                      this decision would also affect those
                                                  (‘‘OEMs’’) and the equipment owner.47                    technologically infeasible. With regard               states and those persons in such states.
                                                  This commenter also requested further                    to the Full Authorization Amendments                  See CAA section 209(e)(2)(B). For these
                                                  definition of ‘‘stationary location’’ as                 I find that CARB has presented                        reasons, EPA determines and finds that
                                                  well as seeking an increase in the 5                     sufficient information to demonstrate                 this is a final action of national
                                                  minute requirement to 15 minutes.48                      that the technology needed to meet the                applicability, and also a final action of
                                                  CARB responds by noting that the                         applicable requirements already exists.               nationwide scope or effect for purposes
                                                  commenter acknowledges that the                          To the extent that comments were raised               of section 307(b)(1) of the Act. Pursuant
                                                  technology needed to comply with the                     concerning Alternative Technology                     to section 307(b)(1) of the Act, judicial
                                                  automated monitoring, recordkeeping                      TRUs and associated reporting                         review of this final action may be sought
                                                  and reporting requirements currently                     requirements, the commenter raising                   only in the United States Court of
                                                  exists and that the commenter fails to                   such concerns has failed to meet their                Appeals for the District of Columbia
                                                  specify and provide any evidence of the                  burden of proof in demonstrating why                  Circuit. Petitions for review must be
                                                  types of proprietary information that is                 such requirements are technologically                 filed by March 20, 2017. Judicial review
                                                  at issue and how such potential                          infeasible. As such, the record does not              of this final action may not be obtained
                                                  information is included in what                          support a finding that the 2011 TRU                   in subsequent enforcement proceedings,
                                                  information must be reported to CARB.                    Amendments are inconsistent with                      pursuant to section 307(b)(2) of the Act.
                                                  CARB also notes that the Alternative                     Section 202(a).                                       IV. Statutory and Executive Order
                                                     44 See 74 FR 3030 (January 16, 2009),                 4. New Issues                                         Reviews
                                                  Authorization Support Document at 22.
                                                                                                              EPA has stated in the past that if                    As with past authorization and waiver
                                                     45 See Authorization Support Document at 25.
                                                                                                           California promulgates amendments                     decisions, this action is not a rule as
                                                  Section 209(e)(2)(A)(iii) requires that both standards                                                         defined by Executive Order 12866.
                                                  and accompanying enforcement procedures be               that raise new issues affecting
                                                  consistent with section 202(a). AEPs are not             previously granted waivers or                         Therefore, it is exempt from review by
                                                  mentioned elsewhere in section 209(e). AEPs are          authorizations, we would not confirm                  the Office of Management and Budget as
                                                  general procedures or other requirements designed
                                                                                                           that those amendments are within the                  required for rules and regulations by
                                                  to ensure that the levels of emission reductions                                                               Executive Order 12866.
                                                  sought by the standards are achieved, see MEMA I         scope of previous authorizations.50 I do
                                                                                                                                                                    In addition, this action is not a rule
                                                  at 1113.                                                 not believe that the Within-the-Scope
                                                     46 See Authorization Support Document at 27.                                                                as defined in the Regulatory Flexibility
                                                                                                           Amendments that extend the
                                                     47 See comment submitted by Thermo King, EPA–                                                               Act, 5 U.S.C. 601(2). Therefore, EPA has
                                                                                                           compliance dates under certain
                                                  HQ–OAR–2015–0224–0003.                                                                                         not prepared a supporting regulatory
                                                                                                           circumstances, provide new or clarify
                                                     48 Id. Thermo King also raises a series of
                                                                                                                                                                 flexibility analysis addressing the
                                                  questions regarding the electronic tracking system       existing exemptions from the TRU in-
                                                                                                                                                                 impact of this action on small business
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                                                  requirements that CARB has addressed in its              use performance standards, and provide
                                                  supplemental comments at EPA–HQ–OAR–2015–                                                                      entities.
                                                                                                           clarifications to CARB’s existing TRU                    Further, the Congressional Review
                                                  0224–0004 (‘‘CARB Supplemental Comments’’).
                                                  EPA agrees with CARB that questions about
                                                                                                           ATCM raise any new issues with respect                Act, 5 U.S.C. 801, et seq., as added by
                                                  whether the definition and requirements of the                                                                 the Small Business Regulatory
                                                                                                             49 CARB  Supplemental Comments at 7–8.
                                                  electronic tracking system apply to OEMs and ‘‘free
                                                  access’’ are questions that do not fall under EPA’s        50 See,e.g., 78 FR 38970 (June 28, 2013), 75 FR
                                                                                                                                                                 Enforcement Fairness Act of 1996, does
                                                  review given the limited statutory criteria for          8056 (February 23, 2010), and 70 FR 22034 (April      not apply because this action is not a
                                                  authorization review.                                    28, 2005).                                            rule for purposes of 5 U.S.C. 804(3).


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                                                  6532                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                    Dated: January 11, 2017.                              contents located outside of the primary                indicate that such consent is
                                                  Gina McCarthy,                                          submission (i.e. on the web, cloud, or                 inappropriate, improper, inadequate, or
                                                  Administrator.                                          other file sharing system). For                        inconsistent with the requirements of
                                                  [FR Doc. 2017–01225 Filed 1–18–17; 8:45 am]             additional submission methods, please                  the Act. Unless EPA or the Department
                                                  BILLING CODE 6560–50–P
                                                                                                          contact the person identified in the ‘‘For             of Justice determines that consent to the
                                                                                                          Further Information Contact’’ section.                 agreement should be withdrawn or
                                                                                                          For the full EPA public comment policy,                withheld, the terms of the agreement
                                                  ENVIRONMENTAL PROTECTION                                information about CBI or multimedia                    will be affirmed.
                                                  AGENCY                                                  submissions, and general guidance on
                                                                                                                                                                 II. Additional information about
                                                                                                          making effective comments, please visit
                                                  [EPA–HQ–OGC–2017–0030; FRL–9958–55–                                                                            commenting on the proposed settlement
                                                                                                          http://www2.epa.gov/dockets/
                                                  OGC]                                                                                                           agreement.
                                                                                                          commenting-epa-dockets.
                                                  Proposed Settlement Agreement,                          FOR FURTHER INFORMATION CONTACT:                       A. How can I get a copy of the proposed
                                                  Clean Air Act Petition for Review                       Jonathan Skinner-Thompson, Air and                     settlement agreement?
                                                                                                          Radiation Law Office (2344A), Office of                   The official public docket for this
                                                  AGENCY: Environmental Protection                        General Counsel, U.S. Environmental                    action under Docket ID No. EPA–HQ–
                                                  Agency (EPA).                                           Protection Agency, 1200 Pennsylvania                   OGC–2017–0030 contains a copy of the
                                                  ACTION: Notice of proposed settlement                   Ave. NW., Washington, DC 20460;                        proposed settlement agreement. The
                                                  agreement; request for public comment.                  telephone: (202) 564–0291; fax number                  official public docket is available for
                                                                                                          (202) 564–5603; email address: skinner-                public viewing at the Office of
                                                  SUMMARY:    In accordance with section                  thompson.jonathan@epa.gov.                             Environmental Information (OEI) Docket
                                                  113(g) of the Clean Air Act, as amended
                                                                                                          SUPPLEMENTARY INFORMATION:                             in the EPA Docket Center, EPA West,
                                                  (‘‘CAA’’), notice is hereby given of a
                                                                                                                                                                 Room 3334, 1301 Constitution Ave.
                                                  proposed settlement agreement to                        I. Additional Information About the
                                                                                                                                                                 NW., Washington, DC. The EPA Docket
                                                  address a lawsuit filed by Sierra Club in               Proposed Settlement Agreement
                                                                                                                                                                 Center Public Reading Room is open
                                                  the United States Court of Appeals for                     Sierra Club filed a petition for review             from 8:30 a.m. to 4:30 p.m., Monday
                                                  the District of Columbia Circuit: Sierra                of EPA’s final action titled ‘‘Revisions to            through Friday, excluding legal
                                                  Club v. EPA, No. 16–1158 (D.C Cir.). On                 Ambient Monitoring Quality Assurance                   holidays. The telephone number for the
                                                  May 27, 2016, Sierra Club filed a                       and Other Requirements’’ (‘‘final                      Public Reading Room is (202) 566–1744,
                                                  petition for judicial review of the final               action’’) at 81 FR 17,248 (Mar. 28, 2016).             and the telephone number for the OEI
                                                  action taken by EPA under the CAA                       In the final action, EPA revised                       Docket is (202) 566–1752.
                                                  titled ‘‘Revisions to Ambient Monitoring                requirements pertaining to public                         An electronic version of the public
                                                  Quality Assurance and Other                             inspection of proposed annual                          docket is available through
                                                  Requirements’’ (‘‘final action’’) at 81 FR              monitoring network plans under 40 CFR                  www.regulations.gov. You may use the
                                                  17,248 (Mar. 28, 2016). The proposed                    58.10.                                                 www.regulations.gov to submit or view
                                                  settlement agreement would resolve                         Under the terms of the proposed                     public comments, access the index
                                                  Sierra Club’s lawsuit upon EPA’s                        settlement agreement, Sierra Club                      listing of the contents of the official
                                                  issuance of two nonbinding guidance                     would agree to dismiss its case with                   public docket, and to access those
                                                  documents recommending public                           prejudice upon EPA’s issuance of two                   documents in the public docket that are
                                                  notification practices concerning the                   nonbinding guidance documents. The                     available electronically. Once in the
                                                  submission and approval of ambient air                  first guidance document would be                       system, key in the appropriate docket
                                                  monitoring network plans.                               issued to state and local monitoring                   identification number then select
                                                  DATES: Written comments on the                          agencies and would make public                         ‘‘search’’.
                                                  proposed settlement agreement must be                   inspection recommendations                                It is important to note that EPA’s
                                                  received by February 21, 2017.                          concerning proposed monitoring plans.                  policy is that public comments, whether
                                                  ADDRESSES: Submit your comments,                        The second guidance document would                     submitted electronically or in paper,
                                                  identified by Docket ID number EPA–                     be issued to EPA regional offices and                  will be made available for public
                                                  HQ–OGC–2017- 0030, online at                            would make recommendations for                         viewing online at www.regulations.gov
                                                  www.regulations.gov. For comments                       stakeholder notification of submitted                  without change, unless the comment
                                                  submitted at www.regulations.gov,                       monitoring plan approvals and                          contains copyrighted material, CBI, or
                                                  follow the online instructions for                      disapprovals. The United States also                   other information whose disclosure is
                                                  submitting comments. Once submitted,                    would agree to make a payment in                       restricted by statute. Information
                                                  comments cannot be edited or removed                    settlement of Sierra Club’s claim for fees             claimed as CBI and other information
                                                  from www.regulations.gov. The EPA                       and costs. Please review the settlement                whose disclosure is restricted by statute
                                                  may publish any comment received to                     agreement for additional details,                      is not included in the official public
                                                  its public docket. Do not submit                        available in the public docket at EPA–                 docket or in the electronic public
                                                  electronically any information you                      HQ–OGC–2017–0030.                                      docket. EPA’s policy is that copyrighted
                                                  consider to be Confidential Business                       For a period of 30 days following the               material, including copyrighted material
                                                  Information (‘‘CBI’’) or other                          date of publication of this notice, the                contained in a public comment, will not
                                                  information whose disclosure is                         Agency will receive written comments                   be placed in EPA’s electronic public
                                                  restricted by statute. Multimedia                       relating to the proposed settlement                    docket but will be available only in
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                                                  submissions (audio, video, etc.) must be                agreement from persons who were not                    printed, paper form in the official public
                                                  accompanied by a written comment.                       named as parties or intervenors to the                 docket. Although not all docket
                                                  The written comment is considered the                   litigation in question. EPA or the                     materials may be available
                                                  official comment and should include                     Department of Justice may withdraw or                  electronically, you may still access any
                                                  discussion of all points you wish to                    withhold consent to the proposed                       of the publicly available docket
                                                  make. The EPA will generally not                        settlement agreement if the comments                   materials through the EPA Docket
                                                  consider comments or comment                            disclose facts or considerations that                  Center.


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Document Created: 2018-02-01 15:16:11
Document Modified: 2018-02-01 15:16:11
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of decision.
DatesPetitions for review must be filed by March 20, 2017.
ContactDavid 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: [email protected]
FR Citation82 FR 6525 

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