[Federal Register Volume 76, Number 21 (Tuesday, February 1, 2011)]
[Notices]
[Pages 5586-5589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2082]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9260-5]
California State Motor Vehicle and Nonroad Engine Pollution
Control Standards; Mobile Cargo Handling Equipment Regulation at Ports
and Intermodal Rail Yards; Opportunity for Public Hearing and Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of opportunity for public hearing and comment.
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SUMMARY: The California Air Resources Board (CARB) has notified EPA
that it has adopted regulations for mobile cargo handling equipment at
ports and intermodal rail yards (Mobile Cargo
[[Page 5587]]
Handling Equipment). CARB's Mobile Cargo Handling Equipment
requirements are designed to use best available control technologies to
reduce public exposure to emissions of diesel particulate matter and
nitrogen oxides. The requirements apply to any motorized vehicle used
to handle cargo, including yard trucks, top handlers, side handlers,
rubber-tired gantry cranes, forklifts, dozers, and loaders. By letter
dated January 29, 2007, CARB has requested that EPA confirm that
certain requirements are within-the-scope of previously granted EPA
waivers and authorizations under the Clean Air Act, and grant a new
full authorization pursuant to the Clean Air Act for other requirements
that are applicable to nonroad engines. This notice announces that EPA
has tentatively scheduled a public hearing to consider California's
Mobile Cargo Handling Equipment request and that EPA is now accepting
written comment on the request.
DATES: EPA has tentatively scheduled a public hearing concerning CARB's
request on Thursday, February 17, 2011, at 1 p.m. EPA will hold a
hearing only if any party notifies EPA by February 7, 2011, expressing
its interest in presenting oral testimony. By February 11, 2011, any
person who plans to attend the hearing may call David Alexander at
(202) 343-9540, to learn if a hearing will be held or may check the
following webpage for an update: http://www.epa.gov/otaq/cafr.htm.
Parties wishing to present oral testimony at the public hearing
should provide written notice to David Alexander at the e-mail address
noted below. If EPA receives a request for a public hearing, that
hearing will be held in Room 1332A of the Ariel Rios North Building,
which is located at 1200 Pennsylvania Avenue, NW., Washington, DC
20004.
If EPA does not receive a request for a public hearing, then EPA
will not hold a hearing, and instead consider CARB's request based on
written submissions to the docket. Any party may submit written
comments until March 17, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0862, by one of the following methods:
On-Line at http://www.regulations.gov: Follow the On-Line
Instructions for Submitting Comments.
E-mail: [email protected].
Fax: (202) 566-1741.
Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2010-0862, U.S. Environmental Protection Agency, Mailcode: 6102T, 1200
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total
of two copies.
Hand Delivery: EPA Docket Center, Public Reading Room, EPA
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC
20460. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
On-Line Instructions for Submitting Comments: Direct your comments
to Docket ID No. EPA-HQ-OAR-2010-0862. EPA's policy is that all
comments we receive will be included in the public docket without
change and may be made available online at http://www.regulations.gov,
including any personal information provided, unless the comment
includes information claimed to be Confidential Business Information
(CBI) or other information whose disclosure is restricted by statute.
Do not submit information that you consider to be CBI or otherwise
protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through http://www.regulations.gov, your
e-mail address will automatically be captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
EPA will make available for public inspection materials submitted
by CARB, written comments received from any interested parties, and any
testimony given at the public hearing. Materials relevant to this
proceeding are contained in the Air and Radiation Docket and
Information Center, maintained in Docket ID No. EPA-HQ-OAR-2010-0862.
Publicly available docket materials are available either electronically
through http://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 to the public on all federal government
work days from 8:30 a.m. to 4:30 p.m.; generally, it is open Monday
through Friday, excluding 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 electronic mail (e-mail) 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 http://www.regulations.gov Web
site, enter EPA-HQ-OAR-2010-0862, 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 also maintains a
webpage that contains general information on its review of California
waiver requests. Included on that page are links to prior waiver and
authorization Federal Register notices; the page can be accessed at
http://www.epa.gov/otaq/cafr.htm.
FOR FURTHER INFORMATION CONTACT: David Alexander, Compliance and
Innovative Strategies Division, U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone:
(202) 343-9540. Fax: (202) 343-2800. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. California's Mobile Cargo Handling Requirements for Equipment at
Ports and Intermodal Rail Yards
In a letter dated January 29, 2007, CARB submitted to EPA its
request pursuant to section 209 of the Clean Air Act (``CAA'' or ``the
Act''), regarding its regulations for Mobile Cargo Handling Equipment
at Ports and Intermodal Rail Yards (``Mobile Cargo Handling Equipment''
or ``CHE''). CARB's Mobile Cargo Handling Equipment regulations were
adopted at CARB's December 8, 2005 public hearing (by Resolution 05-62)
and were subsequently modified
[[Page 5588]]
after making the regulation available for supplemental public comment
by CARB's Executive Officer in Executive Order R-06-007 on June 2,
2006. The Mobile Cargo Handling Equipment regulations are codified at
title 12, California Code of Regulations section 2479.
CARB's Mobile Cargo Handling Equipment regulations establish best
available control technology (BACT) requirements that affect the
sellers, renters, lessors, owners, and operators of mobile cargo
handling equipment that are used at California's ports or intermodal
rail yards. For newly purchased, leased, or rented equipment, certified
on-road engines would be required if available for the specific
equipment type and application. Otherwise, the highest level certified
off-road engine would be required, along with installation of the
highest level verified diesel emission control strategy (VDECS) within
one year of purchase, lease, or rent, or within six months of becoming
available, if after a year. The regulations require in-use yard trucks
to meet BACT performance standards primarily through accelerated
turnover of older yard trucks to those equipped with cleaner, on-road
engines (2007 model year or later). Owners or operators who have
installed VDECS prior to the end of 2006, or who are already using
certified on-road engines, are given additional time to comply. In
addition, compliance is phased in for owners or operators who have more
than three yard trucks in their fleet.
Equipment other than yard trucks (non-yard trucks) would also be
required to meet BACT, constituting replacement by cleaner on-road or
off-road engines and/or the use of retrofits. When retrofits are used,
replacement with Tier 4 off-road engines or installation of a Level 3
VDECS (which achieves an eighty-five percent reduction of emissions of
diesel particulate matter) is required for some equipment. The Mobile
Cargo Handling Equipment regulations also include recordkeeping and
reporting requirements for owners and operators of mobile cargo
handling equipment.
II. Clean Air Act New Motor Vehicle and Engine Waivers of Preemption
Section 209(a) of the Clean Air Act preempts states and local
governments from setting emission standards for new motor vehicles and
engines; it provides:
No State or any political subdivision thereof shall adopt or
attempt to enforce any standard relating to the control of emissions
from new motor vehicles or new motor vehicle engines subject to this
part. No state shall require certification, inspection or any other
approval relating to the control of emissions from any new motor
vehicle or new motor vehicle engine as condition precedent to the
initial retail sale, titling (if any), or registration of such motor
vehicle, motor vehicle engine, or equipment.
Through operation of section 209(b) of the Act, California is able
to seek and receive a waiver of section 209(a)'s preemption. If certain
criteria are met, section 209(b)(1) of the Act requires the
Administrator, after notice and opportunity for public hearing, to
waive application of the prohibitions of section 209(a). Section
209(b)(1) only allows a waiver to be granted for any State that had
adopted standards (other than crankcase emission standards) for the
control of emissions from new motor vehicles or new motor vehicle
engines prior to March 30, 1966, if the State determines that its
standards will be, in the aggregate, at least as protective of public
health and welfare as applicable Federal standards (i.e., if such State
makes a ``protectiveness determination''). Because California was the
only state to have adopted standards prior to 1966, it is the only
state that is qualified to seek and receive a waiver.\1\ The
Administrator must grant a waiver unless she finds that: (A)
California's above-noted ``protectiveness determination'' is arbitrary
and capricious; \2\ (B) California does not need such State standards
to meet compelling and extraordinary conditions; \3\ or (C)
California's standards and accompanying enforcement procedures are not
consistent with section 202(a) of the Act.\4\ EPA has previously stated
that consistency with section 202(a) requires that California's
standards must be technologically feasible within the lead time
provided, giving due consideration of costs, and that California and
applicable Federal test procedures be consistent.\5\
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\1\ See S.Rep. No. 90-403 at 632 (1967).
\2\ Clean Air Act (CAA) section 209(b)(1)(A).
\3\ CAA section 209(b)(1)(B).
\4\ CAA section 209(b)(1)(C).
\5\ See, e.g., 74 FR 32767 (July 8, 2009); see also Motor and
Equipment Manufacturers Association v. EPA (MEMA I), 627 F.2d 1095,
1126 (D.C.Cir. 1979).
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III. 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.
Section 209(e)(2) requires the Administrator, after notice and
opportunity for public hearing, to authorize California to enforce
standards and other requirements relating to the control of emissions
from new engines not listed under section 209(e)(1), if certain
criteria are met. EPA has promulgated regulations implementing these
provisions at 40 CFR part 1074. These regulations set forth the
criteria that EPA must consider before granting California
authorization to enforce its new nonroad emission standards. Title 40
of the Code of Federal Regulations, part 1074.105 provides:
(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.
(c) In considering any request from California to authorize the
state 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.
As stated in the preamble to the section 209(e) rule, 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).\6\
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\6\ See 59 FR 36969 (July 20, 1994).
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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. Pursuant to section 209(b)(1)(C), the
Administrator shall not grant California a motor vehicle waiver
[[Page 5589]]
if 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 are 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, or (2) the
federal and state testing procedures impose inconsistent certification
requirements.
IV. Within-the-Scope Determinations
If California amends regulations that were previously granted a
waiver of preemption or authorization, EPA can confirm that the amended
regulations are within-the-scope of the previously granted waiver or
authorization. Such within-the-scope amendments are permissible without
a full waiver review 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 waivers or authorizations.
V. EPA's Request for Public Comment
When EPA receives a new waiver or authorization request from CARB,
EPA traditionally publishes a notice of opportunity for public hearing
and comment, and then publishes a decision in the Federal Register
following the conclusion of the comment period. In contrast, when EPA
receives a request from CARB for a within-the-scope confirmation, EPA
may publish a decision in the Federal Register and concurrently invite
public comment if an interested party is opposed to EPA's decision.
Because CARB's request regarding its Mobile Cargo Handling
Equipment regulations includes both within-the-scope confirmation
requests and a request for a full authorization, EPA is inviting
comment on several issues. First, we request comment on which criteria
we should apply to the various provisions included within CARB's Mobile
Cargo Handling Equipment regulations. More specifically, we are
requesting comment on whether any of the particular regulatory
provisions included in CARB's request should be considered as within-
the-scope of previous EPA waivers or authorizations, and which
particular regulatory provisions should be so considered, or whether
EPA should consider all of the regulatory provisions as requiring a
full waiver or authorization. Next, we seek comment on application of
the appropriate criteria. To the extent that a commenter believes a
regulatory provision is within-the-scope, they should also comment on
how EPA should apply its within-the-scope criteria; alternatively,
should a commenter believe that a particular regulatory provision
requires a full waiver or authorization, we request comment on whether
California has met the criteria for receipt of a full waiver or
authorization.
Within the context of a within-the-scope analysis, EPA invites
comment on whether California's Mobile Cargo Handling Equipment
requirements: (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 requirements with section 202(a) of the
Act, and (3) raise any other new issues affecting EPA's previous waiver
or authorization determinations.
As stated above, EPA is also requesting comment on issues relevant
to a full waiver and authorization analyses, in the event that EPA
determines that any of California's standards should not be considered
within-the-scope of CARB's previous waivers and authorizations, and
instead require a full waiver or authorization analysis. Specifically,
we request comment on: (a) Whether CARB's determination that its
standards, in the aggregate, are at least as protective of public
health and welfare as applicable federal standards is arbitrary and
capricious, (b) whether California needs such standards to meet
compelling and extraordinary conditions, and (c) whether California's
standards and accompanying enforcement procedures are consistent with
section 209 of the Act.
VI. Procedures for Public Participation
If a hearing is held, the Agency will make a verbatim record of the
proceedings. Interested parties may arrange with the reporter at the
hearing to obtain a copy of the transcript at their own expense.
Regardless of whether a public hearing is held, EPA will keep the
record open until March 17, 2011. Upon expiration of the comment
period, the Administrator will render a decision on CARB's request
based on the record from the public hearing, if any, all relevant
written submissions, and other information that she deems pertinent.
All information will be available for inspection at the EPA Air Docket
No. EPA-HQ-OAR-2010-0862.
Persons with comments containing proprietary information must
distinguish such information from other comments to the greatest extent
possible and label it as ``Confidential Business Information'' (CBI).
If a person making comments wants EPA to base its decision on a
submission labeled as CBI, then a non-confidential version of the
document that summarizes the key data or information should be
submitted to the public docket. To ensure that proprietary information
is not inadvertently placed in the public docket, submissions
containing such information should be sent directly to the contact
person listed above and not to the public docket. Information covered
by a claim of confidentiality will be disclosed by EPA only to the
extent allowed, and according to the procedures set forth in 40 CFR
Part 2. If no claim of confidentiality accompanies the submission when
EPA receives it, EPA will make it available to the public without
further notice to the person making comments.
Dated: January 25, 2011.
Margo T. Oge,
Director, Office of Transportation and Air Quality, Office of Air and
Radiation.
[FR Doc. 2011-2082 Filed 1-31-11; 8:45 am]
BILLING CODE 6560-50-P