Notice2023-08296
California State Nonroad Engine Pollution Control Standards; Large Spark-Ignition (LSI) Engines; Notice of Decision
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 20, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency ("EPA") is granting the California Air Resources Board's ("CARB's") request for authorization of California's 2016 Large Spark Ignition ("LSI") Fleet Amendments to its large spark-ignition engines fleets regulation ("2016 LSI Fleet Amendments"). This decision is granted under the authority of the Clean Air Act ("CAA").
Full Text
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<title>Federal Register, Volume 88 Issue 76 (Thursday, April 20, 2023)</title>
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[Federal Register Volume 88, Number 76 (Thursday, April 20, 2023)]
[Notices]
[Pages 24411-24416]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08296]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2021-0327; FRL-8869-02-OAR]
California State Nonroad Engine Pollution Control Standards;
Large Spark-Ignition (LSI) Engines; Notice of Decision
AGENCY: Environmental Protection Agency.
ACTION: Notice of decision.
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SUMMARY: The Environmental Protection Agency (``EPA'') is granting the
California Air Resources Board's (``CARB's'') request for authorization
of California's 2016 Large Spark Ignition (``LSI'') Fleet Amendments to
its large spark-ignition engines fleets regulation (``2016 LSI Fleet
Amendments''). This decision is granted under the authority of the
Clean Air Act (``CAA'').
DATES: Petitions for review must be filed by June 20, 2023.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2021-0327. 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
electronically through <a href="http://www.regulations.gov">www.regulations.gov</a>. After opening the website,
enter ``EPA-HQ-OAR-2021-0327'' 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 and authorization Federal Register notices, some
of which are cited in this notice; the page can be accessed at: <a href="https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations">https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations</a>.
FOR FURTHER INFORMATION CONTACT: Julian M. Davis, Office of
Transportation and Air Quality, U.S. Environmental Protection Agency,
2565 Plymouth Rd., Ann Arbor, MI 48105, Telephone: (734) 214-4029.
Email: <a href="/cdn-cgi/l/email-protection#5c383d2a352f72362930353d321c392c3d723b332a"><span class="__cf_email__" data-cfemail="9df9fcebf4eeb3f7e8f1f4fcf3ddf8edfcb3faf2eb">[email protected]</span></a>; or Kayla Steinberg, Office of
Transportation and Air Quality, U.S. Environmental Protection Agency,
1200 Pennsylvania Ave. NW. Telephone: (202) 564-7658. Email:
<a href="/cdn-cgi/l/email-protection#8efdfaebe7e0ecebfce9a0e5eff7e2efceebfeefa0e9e1f8"><span class="__cf_email__" data-cfemail="cdbeb9a8a4a3afa8bfaae3a6acb4a1ac8da8bdace3aaa2bb">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
The California Air Resources Board (CARB) promulgated its first
Large Spark-Ignition (LSI) regulations, applicable to new LSI engines,
in 1999 and they remained unchanged until CARB's 2008 Amendments.\1\
EPA authorized these first LSI regulations on May 15, 2006.\2\ CARB
adopted the initial LSI Fleet Requirements (LSI Fleet Requirements),
applicable to fleet operators on March 2, 2007. EPA granted California
an authorization for the initial LSI Fleet Requirements in 2012.\3\ The
LSI Fleet Requirements were designed to address hydrocarbon (HC) and
nitrogen oxide (NO<INF>X</INF>) emissions from existing LSI engines
operating in California and required fleets to meet certain fleet
average emission level (FAEL) standards. CARB adopted its 2008 LSI
Amendments on November 21, 2008. The 2008 LSI Amendments created two
new engine categories below one-liter displacement, with new, more
stringent exhaust and evaporative emission standards applicable to new
engines. These amendments also provided clarification as to when CARB's
off-road sport or utility regulations apply to certain LSI engines.\4\
CARB adopted its 2010 LSI Amendments on December 17, 2010. EPA issued
an authorization decision for the 2008 and 2010 amendments in 2015.\5\
The 2010 LSI Amendments expanded the ``Limited Hours of Use Provision''
to encompass equipment operated not more than 200 hours per year
subsequent to January 1, 2011, and extended the preexisting compliance
extension period if CARB has not verified a retrofit emission control
system, or if one is not commercially available, from one year to two
years.\6\ At its July 21, 2016, public hearing, the CARB Board approved
for adoption the 2016 LSI Fleet Amendments. By letter dated March 15,
2021, CARB submitted a request to EPA for an authorization to enforce
the 2016 LSI Fleet Amendments and asked that EPA consider its
amendments as accompanying enforcement procedures for standards already
authorized in EPA's 2015 decision.\7\ The 2016 LSI Fleet Amendments
include reporting requirements (e.g., initial and annual reports,
equipment transfer and sales reports, and an extension of existing
reporting requirements for fleet operators subject to FAEL). The 2016
LSI Fleet Amendments also include new labeling requirements wherein,
based on operator provided information, CARB will issue the operators a
unique Equipment Identification Number (EIN) for each item of equipment
reported, and the EIN will become the basis for a manufacturer's
equipment labels with a number of associated requirements.\8\
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\1\ Title 13, California Code of Regulations (Cal. Code Regs.),
sections 2430 through 2439.
\2\ 71 FR 29621, 29623 (May 15, 2006).
\3\ EPA granted an authorization for these regulations at 77 FR
20388 (April 4, 2012).
\4\ Clean Air Act section 209(e)(2) Authorization Support
Document (Authorization Support Document), EPA-HQ-OAR-2021-0327-
0003, at 1. Note, ``off-road'' is the term California uses in the
Health and Safety Code and in Title 13, California Code of
Regulations, and is intended to be synonymous and interchangeable
with the term ``nonroad'' as used in the CAA and Federal
regulations.'' Id. at 1, note 1. In the rest of this decision, the
term ``nonroad'' will be used.
\5\ EPA granted a full authorization for the 2008 LSI Amendments
and a within-the-scope confirmation for the 2010 LSI Amendments at
80 FR 76468 (Dec. 9, 2015).
\6\ See Authorization Support Document, at 2-3.
\7\ See Authorization Support Document, at 1. See also 80 FR
76468 for the full authorization of CARB 2008 LSI Amendments and
within the scope of CARB's 2010 LSI Amendments.
\8\ See Title 13, Cal. Code Regs., section 2775, for all large
spark-ignition engine fleet requirements.
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On August 16, 2021, EPA issued a notice seeking comment on CARB's
2016 LSI Fleet Amendments as accompanying enforcement procedures.\9\
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\9\ 86 FR 45724 (Aug. 16, 2021).
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II. Principles Governing This Review
A. Clean Air Act Nonroad Engine and Vehicle Authorizations
CAA section 209(e)(1) prohibits states and local governments from
adopting or attempting to enforce any standard or requirement relating
to the control of emissions from certain new nonroad
[[Page 24412]]
vehicles or engines.\10\ The CAA also preempts states from adopting and
enforcing standards and other requirements related to the control of
emissions from all other nonroad engines or vehicles.\11\ CAA section
209(e)(2)(A), 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 not preempted by CAA section
209(e)(1) 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 protectiveness determination of
California is arbitrary and capricious; (2) California does not need
such standards to meet compelling and extraordinary conditions; or (3)
California standards and accompanying enforcement procedures are not
consistent with CAA section 209.\12\ On July 20, 1994, EPA promulgated
a rule (``the 1994 rule'') that sets forth, among other things,
regulations providing the criteria, as found in CAA section 209(e)(2),
which EPA must consider before granting any California authorization
request for new nonroad engine or vehicle emission standards.\13\ EPA
revised these regulations in 1997.\14\
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\10\ CAA section 209(e)(1) prohibits states or any political
subdivision from adopting or enforcing any standard or other
requirement relating to the control of emissions from new engines
which are used in construction equipment or vehicles or used in farm
equipment or vehicles, and which are smaller than 175 horsepower, or
new locomotives or new engines used in locomotives. See 40 CFR
1074.10(a).
\11\ See CAA section 209(e)(2), 42 U.S.C. 7543(e). See 40 CFR
1074.10 (b). Therefore, States and localities are categorically
prohibited from regulating the control of emissions from new nonroad
vehicles and engines set forth in section 209(e)(1) of the CAA, but
for ``all other'' nonroad vehicles and engines (including non-new
engines and vehicles otherwise noted in 209(e)(1) and all other new
and non-new nonroad engines and vehicles) are only preempted.
\12\ See 40 CFR 1074.105.
\13\ 59 FR 36969 (July 20, 1994).
\14\ 40 CFR 1074.105:
(a) The Administrator will grant the authorization if California
determines that its standards will be, in the aggregate, at least as
protective of public health and welfare as otherwise applicable
federal standards.
(b) The authorization will not be granted if the Administrator
finds that any of the following are true:
(1) California's determination is arbitrary and capricious.
(2) California does not need such standards to meet compelling
and extraordinary conditions.
(3) The California standards and accompanying enforcement
procedures are not consistent with section 209 of the Act (42 U.S.C.
7543).
(c) In considering any request to authorize California to adopt
or enforce standards or other requirements relating to the control
of emissions from new nonroad spark-ignition engines smaller than 50
horsepower, the Administrator will give appropriate consideration to
safety factors (including the potential increased risk of burn or
fire) associated with compliance with the California standard.
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As stated in the preamble to the 1994 rule, EPA has historically
interpreted CAA section 209(e)(2)(iii) ``consistency'' inquiry to
require that California standards and enforcement procedures be
consistent with CAA sections 209(a), 209(e)(1), and 209(b)(1)(C) (as
EPA has interpreted that subsection in the context of CAA section
209(b) motor vehicle waivers).\15\ In order to be consistent with CAA
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 CAA 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 CAA section 209(b)(1)(C), EPA
typically reviews nonroad authorization requests under the same
``consistency'' criteria that are applied to motor vehicle waiver
requests. Pursuant to CAA section 209(b)(1)(C), the Administrator shall
not grant California a motor vehicle waiver if he finds that California
``standards and accompanying enforcement procedures are not consistent
with section 202(a)'' of the CAA. Previous decisions granting waivers
and authorizations have noted that state standards and enforcement
procedures are inconsistent with CAA section 202(a) if: (1) There is
inadequate lead time to permit the development of the necessary
technology giving appropriate consideration to the cost of compliance
within that time, or (2) the Federal and state testing procedures
impose inconsistent certification requirements.\16\ When considering
whether to grant authorizations for accompanying enforcement procedures
tied to standards (such as record keeping and labeling requirements)
for which an authorization has already been granted, EPA has evaluated:
(1) Whether the enforcement procedures are so lax that they threaten
the validity of California's determination that its standards are as
protective of public health and welfare as applicable Federal
standards, and (2) whether the Federal and California enforcement
procedures are consistent.\17\
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\15\ 59 FR at 36982-83.
\16\ Id. See also 78 FR 58090, 58092 (Sept. 20, 2013).
\17\ See Motor & Equipment Manufacturers Association v.
Environmental Protection Agency (MEMA I), 627 F.2d 1095, 1112 (D.C.
Cir. 1979). California certification test procedures need not be
identical to the Federal test procedures to be ``consistent.''
California procedures would be inconsistent, however, if
manufacturers would be unable to meet both the state and Federal
test requirements with the same test vehicle in the course of the
same test. See, e.g., 43 FR 32182, (July 25, 1978).
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B. Burden of Proof
In MEMA the Court stated that the Administrator's role in a CAA
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.'' \18\ The court in MEMA I considered the standard of proof
under CAA section 209 for the two findings related to granting a waiver
for an ``accompanying enforcement procedure'' (as opposed to the
standards themselves): (1) Protectiveness in the aggregate and (2)
consistency with section 202(a) findings. 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.'' \19\ The Court upheld the Administrator's
position that, to deny a waiver, there must be `clear and compelling
evidence' to show that proposed procedures undermine the protectiveness
of California's standards.\20\ 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.\21\ 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.
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\18\ MEMA I, 627 F.2d at 1122.
\19\ Id.
\20\ Id.
\21\ Id.
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Although MEMA I did not explicitly consider the standard of proof
under CAA section 209 concerning a waiver request for ``standards,'' as
compared to accompanying enforcement procedures, there is nothing in
the opinion to
[[Page 24413]]
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.'' \22\ Opponents of the waiver or
authorization bear the burden of showing that the criteria for a denial
of California's waiver or authorization request have been met. As found
in MEMA I, this obligation rests firmly with opponents of the waiver or
authorization in a CAA section 209 proceeding:
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\22\ 80 FR 76468, 76471 (December 9, 2015).
The language of the statute and its legislative history indicate
that California's regulations, and California's determinations that
they 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.\23\
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\23\ Id. 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 or authorization 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.' ''
\24\ Therefore, the Administrator's burden is to act ``reasonably.''
\25\
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\24\ Id. at 1126.
\25\ Id.
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C. Deference to California
In previous waiver and authorization decisions, EPA has recognized
that the intent of Congress in creating a limited review based on
specifically listed 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 . . . Since a balancing of 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.'' \26\ 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.\27\ This
interpretation is supported by relevant discussion in the House
Committee Report for the 1977 Amendments to the CAA. Congress had the
opportunity through the 1977 Amendments to restrict the preexisting
waiver provision but elected instead to 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.\28\
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\26\ See, ``California State Motor Vehicle Pollution Control
Standards; Waiver of Federal Preemption,'' 40 FR 23102, 23103 (May
28, 1975).
\27\ Id. at 23103-04.
\28\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th
Cong., 1st Sess. 301-02 (1977)).
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D. EPA's Administrative Process in Consideration of California's
Request
On August 16, 2021, EPA issued a notice for comment regarding
CARB's 2016 LSI Fleet Amendments. The notice requested the public
provide EPA with comment on issues relevant to EPA's consideration of
the accompanying enforcement procedures established within the 2016 LSI
Fleet Amendments, specifically whether California's 2016 LSI Fleet
Amendments: (a) 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; (b) affect the
consistency of California's requirements with CAA section 209; or (c)
raise any other new issues relating to the three authorization criteria
affecting EPA's previous waiver or authorization determinations.\29\
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\29\ 86 FR 45724 (Aug. 16, 2021).
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EPA did not receive a request for a public hearing. As a
consequence, EPA did not hold a public hearing on this matter. EPA did
receive one comment, from the Outdoor Power Equipment Institute (OPEI),
which asked EPA to deny California's authorization request and to
revise the Agency's 1994 rule implementing CAA section 209(e) to
prevent California from both adopting and enforcing its state
regulations until after EPA has waived preemption under CAA section
209. The commenter requested that EPA deny California's request because
it believes the State is enforcing its nonroad emissions regulations
prior to an EPA authorization. OPEI states that California's position
is inconsistent with the due process protections intended under CAA
section 209, including safeguards for the public such as California's
requiring a waiver or authorization to be granted in order to enforce
the state's emission standards. In addition to denying California this
authorization, OPEI requested EPA: (1) Revisit its 1994 rule and change
its interpretation to bar California from adopting and enforcing its
regulations prior to EPA issuing a waiver or authorization; (2) clarify
adoption dates, implementation dates and lead times, and enforcement
terms; and (3) establish that the effective dates and lead times for
CARB rules requiring an EPA waiver or authorization must consider the
timing of the waiver submission and approval process.
III. Discussion
Our analysis of the 2008 LSI Amendments in the context of the full
authorization criteria is set forth below.
A. California's Protectiveness Determination
CAA section 209(e)(2)(A)(i) of the CAA instructs that EPA cannot
grant an authorization if the Agency finds that California was
arbitrary and capricious in its determination that its amendments are,
in the aggregate, at least as protective of public health and welfare
as applicable Federal standards. In adopting the 2016 LSI Fleet
Amendments, CARB's Board approved Resolution 16-10, in which it
expressly declared, `` `the Board hereby determines, in accordance with
the CAA, section 209(e)(2), that the amendments adopted herein do not
undermine the Board's previous determination that the regulation's
emission standards, other emission related requirements, and associated
enforcement procedures are, in the aggregate, at least as protective of
the public health and welfare as applicable
[[Page 24414]]
federal standards.' '' \30\ CARB further stated that the 2016 LSI Fleet
Amendments ``do not reduce the stringency of the FAEL standards
established by the initial LSI Fleet Requirements but will instead
enable CARB to more effectively enforce the LSI Fleet Requirements.''
\31\ CARB also pointed out that there are no Federal standards to
regulate engines that have been placed into service, such as
regulations applicable to fleet operators, under the CAA and,
therefore, there is no question that California's standards are at
least as protective as Federal standards.
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\30\ CARB, Resolution 16-10 (quoted in Authorization Support
Document, at 7-8).
\31\ Id. at 8.
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EPA requested but did not receive any comment on whether the 2016
LSI Fleet Amendment undermine California's previous protectiveness
determination. We cannot find that California's 2016 LSI Fleet
Amendments undermine California's previous determination that its
standards and accompanying enforcement procedures, in the aggregate,
are at least as protective of public health and welfare as applicable
Federal standards. Thus, we cannot deny CARB's request for
authorization of its amendments based on this criterion.
B. Consistency With CAA Section 209
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.'' The 1994 rule sets
forth, among other things, regulations providing the criteria, as found
in section 209(e)(2), which EPA must consider before granting any
California authorization request for new nonroad engine or vehicle
emission standards. EPA has historically interpreted the section
209(e)(2)(iii) ``consistency'' inquiry to require, at minimum, that
California standards and enforcement procedures be consistent with
section 209(a), section 209(e)(1), and section 209(b)(1)(C) (as EPA has
interpreted that subsection in the context of section 209(b) motor
vehicle waivers).\32\ EPA has interpreted this last subsection in the
context of motor vehicle waivers. Thus, this can be viewed as a three-
pronged test as evaluated below.
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\32\ 59 FR at 36982-83.
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1. Consistency With CAA Section 209(a)
To be consistent with CAA section 209(a), California's 2016 LSI
Amendments must not apply to new motor vehicles or new motor vehicle
engines. California's 2016 LSI Fleet Amendments expressly apply only to
nonroad engines and do not apply to engines used in motor vehicles as
defined by CAA section 216(2). We did not receive any comments on
California's consistency with CAA section 209(a). Therefore, EPA cannot
deny California's request on the basis that California's 2016 LSI Fleet
Amendments are not consistent with CAA section 209(a).
2. Consistency With CAA Section 209(e)(1)
To be consistent with CAA section 209(e)(1), California's 2016 LSI
Fleet Amendments must not affect new farm or construction equipment or
vehicles that are below 175 horsepower, or new locomotives or new
engines used in locomotives. CARB notes that its 2016 LSI Fleet
Amendments do not affect such permanently preempted vehicles or
engines. EPA did not receive any comments regarding California's
consistency with section 209(e)(1). Therefore, EPA cannot deny
California's request on the basis that California's 2016 LSI Fleet
Amendments are not consistent with section 209(e)(1).
3. Consistency With CAA Section 209(b)(1)(C)
The requirement that California's standards be consistent with CAA
section 209(b)(1)(C) effectively requires consistency with section
202(a). EPA has interpreted consistency with section 202(a) using a
two-pronged test: (1) Whether there is sufficient lead time to permit
the development of technology necessary to meet the standards and other
requirements, giving appropriate consideration to the cost of
compliance in the time frame provided, and (2) whether the California
and Federal test procedures are sufficiently compatible to permit
manufacturers to meet both the state and Federal test requirements with
one test vehicle or engine.\33\ The scope of EPA's review of whether
California's action is consistent with CAA section 202(a) is narrow.
The determination is limited to whether those opposed to the
authorization 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.\34\
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\33\ See 61 FR 53371, 53372 (Oct. 11, 1996).
\34\ MEMA I, 627, F.2d at 1126.
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a. Technological Feasibility
Congress has stated that the consistency requirement of section
202(a) relates to technological feasibility.\35\ CAA section 202(a)(2)
states, in 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.
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\35\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
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The 2016 LSI Fleet Amendments include reporting requirements (e.g.,
initial and annual reports, equipment transfer and sales reports, and
an extension of existing reporting requirements for fleet operators
subject to fleet average emission limits). The 2016 LSI Fleet
Amendments also include new labeling requirements wherein, based on
operator provided information, CARB will issue the operators a unique
EIN for each item of equipment reported and become the basis of a
manufacturer's equipment labels with a number of associated
requirements. EPA did not receive any comments suggesting that CARB's
accompanying enforcement procedures are technologically infeasible.
Consequently, based on the record, EPA cannot deny California
authorization of its 2016 LSI Fleet Amendments based on technological
infeasibility.
b. Consistency With Federal Test Procedures
California's 2016 LSI Amendments do not alter the testing required
under the previously granted LSI Fleet authorization. California states
in its authorization support document, ``[t]he 2016 LSI Fleet
Amendments also do not raise any issue regarding incompatibility
between California and Federal test procedures because EPA has no
comparable requirements.\36\ We did not receive any comment regarding
inconsistency with Federal test procedures that would provide EPA a
basis to deny this authorization. Consequently, based on the record,
EPA cannot deny California an authorization on the basis of
inconsistency with Federal test procedures.
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\36\ Authorization Support Document, at 9.
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[[Page 24415]]
C. Other Issues Affecting EPA's Evaluation of CAA Section 209(e)
Criteria
EPA has received comment outside the scope of the three
authorization criteria in section 209(e)(1) of the CAA. A summary of
OPEI's comment is set forth above. EPA does not believe OPEI has
provided comments directly related to the applicable criteria EPA may
consider when reviewing a request from California for a waiver or
authorization. OPEI has not met its burden of proof to demonstrate that
the basis for denying an authorization under section 209(e)(1) has been
met.
In previous decisions on waivers and authorizations, EPA has stated
that Congress intended EPA's review of California's decision-making to
be narrow. This has led EPA to reject arguments that are not specified
in the statute as grounds for denying a waiver:
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 air quality not
commensurate with its cost 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.\37\
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\37\ 78 FR 2111, 2115 (Jan. 9, 2013). See also 36 FR 17458 (Aug.
31, 1971). Note that the more stringent standard expressed here, in
1971, was superseded by the 1977 Amendments to CAA 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.
EPA has noted that the statute lists three specific grounds for
rejecting an authorization request.\38\ This has led EPA to reject
arguments that are outside the scope of the three statutory criteria
when considering whether to grant or deny a waiver request.\39\
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\38\ Id.
\39\ 87 FR 14342 (March 14, 2022).
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EPA believes OPEI's challenge to California's exercise of
California's enforcement procedures is misplaced in this request for an
authorization. Consideration of a request for authorization is limited
to the criteria outlined in CAA section 209(e)(2)(A), i.e., whether:
(1) California's determination is arbitrary and capricious, (2)
California does not need such standards to meet compelling and
extraordinary conditions,\40\ or (3) California standards and
accompanying enforcement procedures are not consistent with section 209
of the CAA. OPEI does not argue that the 2016 LSI Fleet Amendments and
its accompanying enforcement procedures affect EPA's prior
authorization decision or alters California's previous grant of an EPA
authorization. An evaluation of the issues related to whether
California is improperly enforcing its regulations before a waiver or
authorization is issued by EPA is not among the criteria listed under
CAA section 209(e)(1). EPA may only deny an authorization based on the
criteria in CAA section 209(e)(1) and any issues raised regarding the
improper enforcement by California of its regulations prior to
receiving a waiver or authorization is not one of those criteria.
Therefore, given OPEI does not raise new issues affecting EPA's
evaluation of CAA section 209(e)(1) criteria, and the issues raised by
OPEI in its comments may not be used as a basis of denying California
this authorization.
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\40\ As noted above, EPA's review of waiver requests for
accompanying enforcement procedures does not include a review of the
second waiver prong. In any event, no adverse comment was submitted
to suggest CARB's regulations did not meet this criterion and EPA
cannot deny the waiver request on this basis.
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Similarly, OPEI's comments seeking revision of EPA's authorization
regulations are misplaced. EPA did not reopen those regulations in this
proceeding, and therefore those comments are beyond the scope of this
action.
EPA notes, without reopening our regulations, that the regulations
implementing CAA section 209(e)(2) are at 40 CFR part 1074, subpart
B.\41\ We also note that the ``lead time'' associated with the
evaluation of California's regulations under CAA section
209(e)(2)(A)(iii) is measured from when California adopts its
regulations.\42\ Once EPA authorizes CARB's authorization request,
which includes an assessment of CAA section 209(e)(2)(A)(iii), then
CARB is no longer subject to the preemption in CAA section 209 and may
enforce its regulations under its state law authorities.
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\41\ 40 CFR 1074.101(a) provides that California must request
authorization from the Administrator of EPA to enforce its adopted
standards. See also 95 FR 3699 (July 20, 1994).
\42\ 59 FR 3969, 36981-36983 (July 20, 1994).
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IV. Decision
After evaluating California's 2016 LSI Fleet Amendments, CARB's
submissions, and the lack of any relevant adverse comment, EPA is
granting an authorization to California for its 2016 LSI Fleet
Amendments.
V. Judicial Review
Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the United States Court of Appeals for the
District of Columbia Circuit: (i) when the agency action consists of
``nationally applicable regulations promulgated, or final actions
taken, by the Administrator,'' or (ii) when such action is locally or
regionally applicable, but ``such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such a
determination.'' For locally or regionally applicable final actions,
the CAA reserves to the EPA complete discretion whether to invoke the
exception in (ii).
To the extent a court finds this final action to be locally or
regionally applicable, the Administrator is exercising the complete
discretion afforded to him under the CAA to make and publish a finding
that this action is based on a determination of ``nationwide scope or
effect'' within the meaning of CAA section 307(b)(1) for several
reasons.\43\ This final action grants an authorization for amendments
to California's LSI Fleet regulations that were previously authorized
by EPA. As such, this final action will affect fleet operators located
within and outside California that are subject to the reporting and
labeling requirements in those regulations while operating their
equipment within California.
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\43\ In deciding whether to invoke the exception by making and
publishing a finding that this final action is based on a
determination of nationwide scope or effect, the Administrator has
also taken into account a number of policy considerations, including
his judgment balancing the benefit of obtaining the D.C. Circuit's
authoritative centralized review versus allowing development of the
issue in other contexts and the best use of Agency resources.
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Furthermore, the LSI Fleet regulations, and the amendments to those
regulations that are the subject of today's action, the 2016 LSI Fleet
Amendments, are part of California's nonroad emissions program that,
together with its on-highway emissions program, are regulatory programs
that EPA may waive under CAA section 209. As required by statute, in
evaluating the authorization criteria in this action, EPA considers not
only the 2016 LSI Fleet Amendments in isolation, but in the context of
the entire California program. See CAA section 209(e)(2)(A) (requiring
that the protectiveness finding be made for California's standards ``in
the aggregate''). Moreover, EPA generally applies a consistent
statutory interpretation and analytical framework
[[Page 24416]]
in evaluating and deciding various authorization and waiver requests
under CAA section 209. EPA also relies on the extensive body of D.C.
Circuit case law developed by that court since 1979 as it has reviewed
and decided judicial challenges to these actions. As such, judicial
review of any challenge to this action in the D.C. Circuit will
centralize review of national issues in that court and advance other
Congressional principles underlying this CAA provision of avoiding
piecemeal litigation, furthering judicial economy, and eliminating the
risk of inconsistent judgments.
For these reasons, the Administrator is exercising the complete
discretion afforded to him by the CAA and hereby finds that this final
action is based on a determination of nationwide scope or effect for
purposes of CAA section 307(b)(1) and is hereby publishing that finding
in the Federal Register. Under section 307(b)(1) of the CAA, petitions
for judicial review of this action must be filed in the United States
Court of Appeals for the District of Columbia Circuit by June 20, 2023.
VI. 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).
Michael S. Regan,
Administrator.
[FR Doc. 2023-08296 Filed 4-19-23; 8:45 am]
BILLING CODE 6560-50-P
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