California State Nonroad Engine
Pollution Control Standards; Small
Off-Road Engines Regulations
Decision Document
rnA United States
Environmental Protection
Agency
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California State Nonroad Engine
Pollution Control Standards; Small
Off-Road Engines Regulations
Decision Document
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
United States
Environmental Protection
Agency
EPA-420-R-24-026
December 2024
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EPA-420-R-24-026; December 2024
California State Nonroad Engine Pollution Control Standards; Small Off-Road Engines
Regulations; Decision Document
On May 23, 2023, the Environmental Protection Agency (EPA) published a Federal
Register notice announcing receipt of the California Air Resources Board's (CARB's)
authorization request for amendments adopted in 2016 and 2021 applicable to small off-road
engines (SORE) regulations.1 The notice for comment on this authorization request indicated that
the request would be open for public comment until July 28, 2023. The Docket ID No. for the
authorization is EPA-HQ-OAR-2023-0151. EPA also held a public hearing on the authorization
request on June 27, 2023, and the transcript of that hearing is included in the docket. In this
Decision Document, EPA is taking final action to authorize CARB's 2016 and 2021
Amendments to the SORE regulations, pursuant to section 209(e) of the Clean Air Act (CAA).2
EPA is also providing notice of the availability of this Decision Document in the Federal
Register.
1 88 FR 33143 (May 23, 2023). For purposes of this Decision Document, EP A is using the term "SORE" to include
all types of small offroad engines and equipment. Engines and equipment that meet zero-emission performance
standards are referred to as "ZEE" to denote zero-emission equipment while engines and equipment that meet non-
zero-emission performance standards (non-ZEE) are referred to as spark-ignition SORE.
2 This Decision Document can be found in the public docket at regulations.gov at EPA-HQ-OAR-2023 -0151.
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Table of Contents
I. Background
A. Clean Air Act Nonroad Engine and Vehicle Authorizations
B. Deference to California
C. Burden and Standard of Proof
D. EPAs Administrative Process in Consideration of California's Request
II. Response to Comments Regarding the Authorization Criteria
A. First Authorization Criterion
B. Second Authorization Criterion
C. Third Authorization Criterion
III. Other Issues
IV. Decision
V. Statutory and Executive Order Reviews
I. Background
CARB first adopted emission standards and associated test procedures for small off-road
engines (SORE) in 1990.3 CARB subsequently amended the SORE regulations a number of
times and EPA granted authorizations for CARB to enforce the SORE regulations and
subsequent amendments.4
3 SORE are defined by CARB as off-road spark-ignition engines rated at or below 19 kilowatts (25.5 horsepower)
that are not used to propel a licensed on-road motor vehicle, an off-road motorcycle, an all-terrain vehicle, a marine
vessel, a snowmobile, a model airplane, a model car, or a model boat. SORE are predominantly used in lawn and
garden equipment such as lawn mowers, string trimmers, and leaf blowers, as well as in other small off-road
equipment such as portable generators, pressure washers, and air compressors. The vast majority of SORE are fueled
by gasoline, but some are powered by compressed natural gas (CNG), propane, liquefied petroleum gas (LPG), or
liquefied natural gas (LNG). Small off-road equipment powered by SORE is known as SORE equipment.
4 60 FR 37440 (July 20, 1995); 65 FR 69763 (November 20, 2000); 68 FR 65702 (November 21, 2003); 71 FR
75536 (December 15, 2006); 75 FR 8056 (February 23, 2010); 80 FR 26041 (May 6, 2015); 80 FR 76971
(December 11, 2015).
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On December 20, 2022, CARB submitted a new authorization request to EPA for its
amendments to the SORE regulation adopted in 2016 (2016 SORE Amendments) and in 2021
(2021 SORE Amendments).5
CARB notes that its 2016 SORE Amendments include improvements to evaporative
emissions certification procedures, revise the compliance testing procedure, update the
evaporative emissions certification test fuel to represent commercially available gasoline, and
align aspects of the SORE requirements with the corresponding federal requirements, while
retaining elements of the evaporative emission standards previously adopted by CARB, which
are more stringent than the applicable federal requirements. CARB also notes the 2016
Amendments are designed to increase SORE equipment compliance with the diurnal emission
standards, will require evaporative emissions certification test fuel to be formulated to reflect
motor vehicle fuel currently dispensed at California gasoline stations, will enable SORE
manufacturers to obtain both CARB and EPA certification for fuel tanks based on a common set
of test results, and will enable CARB to more readily identify and remedy violations of the
evaporative emissions standards. The 2016 Amendments do not increase the stringency of the
5 CARB's SORE Authorization Request (SORE Authorization Support Document), EPA-HQ-OAR-2023-0151-
0003 at 3. The 2016 Amendments amended California Code of Regulations (Cal. Code Regs.) tit. 13, §§ 2750, 2751,
2752, 2753, 2754, 2754.1, 2755, 2756, 2757, 2758, 2759, 2760, 2761, 2762, 2763, 2764, 2765, 2766, 2767, 2767.1,
2768, 2769, 2770, 2771, 2772, 2773, and amended the following documents incorporated by reference therein: "CP-
901, Certification and Approval Procedure for Small Off-Road Engine Fuel Tanks," adopted July 26, 2004; "CP-
902, Certification and Approval Procedure for Evaporative Emission Control Systems," adopted July 26, 2004; "TP-
901, Test Procedure for Determining Permeation Emissions From Small Off Road Engine and Equipment Fuel
Tanks," adopted July 26, 2004; "TP-902, Test Procedure for Determining Diurnal Evaporative Emissions From
Small Off-Road Engines and Equipment," adopted July 26, 2004. Unless otherwise noted, all subsequent section
references are to Cal. Code Regs., title 13; and adopt section 2774. The 2021 Amendments amended sections 2400,
2401, 2402, 2403, 2404, 2405, 2405.1, 2405.2, 2405.3, 2406, 2407, 2408, 2408.1, 2750, 2751, 2752, 2753, 2754,
2754.1, 2754.2, 2755, 2756, 2757, 2758, 2759, 2761, 2762, 2763, 2764, 2765, 2766, 2767, 2767.1, and 2771. The
2021 Amendments also added sections 2408.2 and 2754.3 and repealed preexisting section 2768. The 2021
Amendments additionally included several amendments to the exhaust and evaporative emissions test procedures-
please see Updated Informative Digest for the 2021 Amendments, pp. 1-4.
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preexisting SORE evaporative emission standards but will ensure that manufacturers will more
fully comply with those standards.6
CARB notes that its 2021 SORE Amendments primarily establish exhaust and
evaporative emission standards and associated test procedures for 2024 and subsequent model
engines and equipment that are significantly more stringent than preexisting exhaust and
evaporative emission standards and associated test procedures. The 2021 Amendments establish
SORE emission standards in two phases. First, the exhaust emission standards for most 2024 and
subsequent model year (MY) SORE is zero (0.00 grams per kilowatt-hour) for hydrocarbons
(HC) and oxides of nitrogen (NOx). Under the 2021 SORE Amendments, carbon monoxide (CO)
emission standards for MY 2024 and later engines are more stringent than the existing CARB
emission standards for some displacement categories, but they are not zero. The evaporative
emission standards for most 2024 and subsequent MY SORE are zero (0.00 grams per test). The
evaporative emission standards include "hot soak" emissions (representing emissions that occur
when placing a hot engine in storage after use on a hot summer day) to better evaluate emissions
from real world use of SORE equipment. The above-mentioned emission standards apply for all
categories of SORE except pressure washer engines with displacements greater than or equal to
225 cubic centimeters (cc) and portable generator engines. The emission standards for these
latter categories of engines are more stringent than the pre-existing emission standards starting in
MY 2024 but are not zero. The second phase of the emissions standards will be implemented
beginning in MY 2028, when the exhaust and evaporative emission standards for engines used in
pressure washers with displacements greater than or equal to 225 cc and portable generators will
be aligned with the zero emission standards for other categories of SORE.7
6 SORE Authorization Support Document at 7-14.
7 SORE Authorization Support Document at 14-20.
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A. Clean Air Act NonroadEngine and Vehicle Authorizations
CAA section 209(e)(1) 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
(including "non-new" engines), states generally are preempted from adopting and enforcing
standards and other requirements relating to the control of emissions, except that CAA section
209(e)(2)(A) requires EPA, after notice and opportunity for public hearing, to authorize
California to adopt and enforce such regulations unless EPA makes one of three enumerated
findings. Specifically, EPA must deny authorization if the Administrator finds that (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 CAA section 209.
On July 20, 1994, EPA promulgated a rule (the 1994 rule) interpreting the three criteria
set forth in CAA section 209(e)(2)(A) that EPA must consider before granting any California
authorization request for nonroad engine or vehicle emission standards.9 EPA revised these
regulations in 1997.10
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 CAA
section 209(e)(1) also applies to new locomotives or new engines used in locomotives.
9 See "Air Pollution Control; Preemption of State Regulation for Nonroad Engine and Vehicle Standards," 59 FR
36969 (July 20, 1994).
10 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, Part
1074.
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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 CAA section
209(e)(2)(A)(iii), to require that California standards and enforcement procedures be consistent
with CAA section 209(a), section 209(e)(1), and section 209(b)(1)(C).11 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 CAA section
209(b)(1)(C). That provision provides that the Administrator shall not grant California a motor
vehicle waiver if the Administrator 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 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.
In light of the similar language of CAA 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
11 See supra note 12. EPAhas interpreted CAA section 209(b)(1)(C) in the context of section 209(b) motorvehicle
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under section 209(b).12 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),13 and that
EPA should give substantial deference to the policy judgments California has made in adopting
its regulations. In previous waiver decisions, EPA explained 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:
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.14
This principle of narrow EPA review has been upheld by the U.S. Court of Appeals for
the District of Columbia Circuit.15 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 CAA section 209(e)(2)(A).
12 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 § 209(e) on nonroad sources to § 209(a) on motor vehicles."
13 See supra note 12, at 36983.
14 "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 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. In the 1990 amendments to CAA section 209, Congress
established section 209(e) and similar language in section 209(e)(l)(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.
15 See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (D.C. Cir. 1979) ("MEMA I").
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B. Deference to California
In previous waiver decisions, EPA has recognized that the intent of Congress in creating a
limited review based on the CAA section 209(b)(1) criteria was to ensure that the federal
government did not second-guess state policy choices. This has led EPA to state:
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 shaped 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.16
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.17
The House Committee Report explained that as part of the 1977 amendments to the
CAA, where Congress had the opportunity to restrict the waiver provision, it elected instead to
explain California's flexibility to adopt a complete program of motor vehicle emission controls.
The amendment is intended to ratify and strengthen the California waiver provision and to affirm
the underlying intent of that provision, i.e., to afford California the broadest possible discretion
in selecting the best means to protect the health of its citizens and the public welfare.18
16 40 FR 23103-23104 (May 28, 1975); see also LEV I Decision Document at 64 (58 FR 4166 (January 13, 1993)).
17 40 FR 23104; 58 FR 4166.
ISMEMAI, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95 Cong., IstSess. 301-02 (1977)).
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C. Burden and Standard of Proof
As the U.S. Court of Appeals for the D.C. Circuit has made clear mMEMA /, opponents
of a waiver request by California 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.19
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 MEMAI 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.' "20 Therefore,
the Administrator's burden is to act "reasonably."21
With regard to the standard of proof, the court in MEMA I explained 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.22
In that decision, the court considered the standards of proof under CAA 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
19 MEMA /, 627 F.2d at 1121.
20 Id. at 1126.
21 Id.
22 Id. at 1122.
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protectiveness determination for the associated standards, and (2) whether the procedures are
consistent with CAA 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."23
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.24 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.25
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
MEMAI did not explicitly consider the standards of proof under CAA 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
23 Id.
24 Id.
25 Id.
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standards are technologically feasible—Congress intended that the standards of EPA review of
the State decision to be a narrow one."26
I). EPA's Administrative Process in Consideration of California's Request
On May 23, 2023, EPA published a Federal Register notice announcing its receipt of
California's authorization request. In that notice, EPA invited public comment on the 2016
Amendments and 2021 Amendments and announced a public hearing.27
EPA requested comment on whether California's 2016 SORE Amendments and the 2021
SORE Amendments meet the criteria for a full authorization. Specifically, EPA requested
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 CAA section 209. We also requested comment on any safety factors EPA
should consider regarding the 2016 and 2021 SORE Amendments.
Following the May 2023 Federal Register Notice, a public hearing was held on June 27,
2023. In addition, EPA received written comments from health and environmental organizations,
industry, SORE retailers and end users, and individuals, all of which can be found, along with a
26 See, e.g., "California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption," 40 FR
23102 (May 28, 1975), at 23103.
27 See "California State Nonroad Engine Pollution Control Standards; Small Off-Road Engines; Request for
Authorization; Opportunity for Public Hearing and Comment," 88 FR 33143 (May 23, 2023).
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transcript of the public hearing including all oral testimonies provided, in the public docket.28
CARB also submitted supplemental comments to its original authorization request.29
II. Response to Comments Regarding the Authorization Criteria
In this section, EPA addresses the comments received with respect to the three
authorization criteria.
A. First Authorization Criterion
CAA section 209(e)(2)(A)(i) instructs that EPA cannot grant an authorization if the
Agency finds that California was arbitrary and capricious in its determination that its standards
will be, in the aggregate, at least as protective of public health and welfare as applicable Federal
standards.
EPA's evaluation of this first authorization prong is performed under the construct
explained here. CAA section 209(e)(2)(A)(i) requires EPA to grant an authorization unless the
Administrator finds that California has been arbitrary and capricious in its determination that its
State standards will be, in the aggregate, at least as protective of public health and welfare as
applicable Federal standards. EPA may not disregard California's determination unless there is
28 See Docket ID EPA-HQ-OAR-2023-0151 at www.regulations.gov; Document IDs are: AmericanLung
Association (ALA), EPA-HQ-OAR-2023-0151-0031; Americas Styrenics, EPA-HQ-OAR-2023-0151-0009;
Anthony DeRiggi, EPA-HQ-OAR-2023-0151-0015; Briggs & Stratton, EPA-HQ-OAR-2023-0151-0025; California
Alliance for Golf (CAG), EPA-HQ-OAR-2023-0151-0010; Coalitionfor Clean Air, EPA-HQ-OAR-2023-0151-
0016; Earth Justice, EPA-HQ-OAR-2023-0151-0023 with supplemental comments in EPA-HQ-OAR-2023-0151-
0032; Truck and Engine Manufacturers Association (EMA), EPA-HQ-OAR-2023-0151-0021 with supplemental
comments in EPA-HQ-OAR-2023-0151-0034; Golf Course Superintendents Association of America (GCSAA),
EPA-HQ-OAR-2023-0151 -0008; Jennifer Caldwell, EPA-HQ-OAR-2023-0151-0012 and EPA-HQ-OAR-2023 -
0151-0013; Jensen & Pilegard, EPA-HQ-OAR-2023-0151-0020; Joseph's Lawnmowers, EPA-HQ-OAR-2023-0151-
0029; Kim Alexander, EPA-HQ-OAR-2023-0151-0017; M. Coulter, EPA-HQ-OAR-2023-0151-0014; Miller Farms,
EPA-HQ-OAR-2023-0151 -0028; Muriel Strand, EPA-HQ-OAR-2023-0151-0018; National Association of
Landscape Professionals (NALP), EPA-HQ-OAR-2023-0151-0027; Nancy McKeever, EPA-HQ-OAR-2023-0151-
0011; Outdoor Power Equipment Institute (OPEI), EPA-HQ-OAR-2023-0151-0026 with supplemental comments in
EPA-HQ-OAR-2023-0151-0033; Portable Generator Manufacturers'Association (PGMA), EPA-HQ-OAR-2023-
0151-0030; Steven Spatafore, EPA-HQ-OAR-2023-0151-0019; Stihl, EPA-HQ-OAR-2023-0151-0024.
29 See CARB Supplemental Comment Letter, EPA-HQ-OAR-2023-0151-0035.
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"clear and compelling evidence" to the contrary.30 Moreover, "[t]he language of the statute and
its legislative history indicate that California's regulations, and California's determination that
they comply with the statute, when presented to the Administrator are presumed to satisfy the
waiver requirements."31 Additionally, "the parties opposing the waiver request bear the burden of
persuading the Administrator that the waiver request should be denied."32
CARB states in their SORE Authorization Support Document that, in adopting the 2016
SORE Amendments, the Board determined that the regulations adopted would not cause
California off-road engine emissions standards, in the aggregate, to be less protective of public
health and welfare than applicable federal standards. Those findings were reaffirmed by CARB's
Executive Officer in formally adopting these amendments on November 17, 2016. CARB notes
that EPA had previously determined that CARB's SORE emissions standards and related test
procedures were at least as protective of public health and welfare as the federal nonroad
emissions standards and test procedures and that the 2016 Amendments do not affect that
previous determination. CARB states that the 2016 Amendments did not reduce the stringency of
either the preexisting exhaust emissions standards or evaporative emission standards, but instead
would ensure that the preexisting SORE evaporative emissions standards would be more
effectively enforced.33
In the SORE Authorization Support Document regarding the 2021 SORE Amendments,
CARB states that the Board had determined that the requirements would not cause California
off-road engine and vehicle emission standards, in the aggregate, to be less protective of public
health and welfare than applicable federal standards. CARB notes that the 2021 Amendments
30 MEMA I, 627 F.2d 1095, 1121-22 (D.C. Cir. 1979).
31 Id. See also Ford Motor, 606 F.2d 1293, 1297 (D.C. Cir. 1979).
32 MEMA /, 627 F.2d at 1121.
33 SORE Authorization Support Document at 23-24.
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establish evaporative and exhaust emissions standards that are significantly more stringent than
the comparable federal nonroad emissions standards, and test procedures to ensure that fuel tanks
on test engines more accurately represent the fuel tanks actually used with production engines.
CARB concludes that the 2021 Amendments will not cause California's off-road engine
emissions control program to be less protective of the public health and welfare than the federal
nonroad emissions control program.34
EPA received comment claiming that CARB's protectiveness determination regarding the
2021 SORE Amendments is arbitrary and capricious because CARB relied on unsupported and
unproven or outdated data and assumptions to estimate the rule's technological feasibility,
emissions reductions, benefits, and cost of compliance, and also because that CARB, in assessing
emission impacts and costs of compliance, ignored life cycle emissions.35
In evaluating CARB's authorization request under the first prong, EPA is following its
traditional practice, which represents the best reading of the statute. This approach begins by
comparing the stringency of the specific standards that CARB has submitted for authorization
with the relevant federal standards. If each CARB standard is more stringent than the relevant
federal standards, then there is no possibility that the submitted standards could render CARB's
nonroad program less protective than the federal program. Given this and EPA's prior findings
regarding CARB's protectiveness determinations for its nonroad program, that means CARB's
determination that its nonroad program is at least as protective as the federal program is not
arbitrary and capricious, and the first authorization criterion is satisfied. If, however, it appears
34 SORE Authorization Support Document at 30.
35 OPEI at 46. OPEI states that spark-ignition and electric-powered equipment differ significantly in their power-
source design, function, technology, and manufacturing and, for these reasons, life cycle emissions (LCE) must be
considered when determining the level of protectiveness of public health and welfare of battery-electric equipment
versus spark-ignition SORE and whether the forced transition to battery-electric equipment is at least as protective
of public health and welfare as the federal standards.
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that any CARB standard may be less stringent than the comparable federal standard, then EPA
will further evaluate whether California's standards as a whole are 'in the aggregate" as
protective of public health and welfare as applicable federal standards for nonroad vehicles and
engines.36 In that circumstance, even if the standards in question are less stringent than the
relevant federal standards, so long as California's nonroad standards, in the aggregate, are more
stringent than the federal standards, the first authorization criteria is satisfied.
EPA received no comments regarding whether the 2016 SORE Amendments are less
protective of public health and welfare as applicable federal standards.
CARB's 2021 SORE Amendments put into place evaporative organic HC standards of
0.00 grams per test (g/test) for all SORE except portable generator sets and pressure washers.
The 0.00 g/test standard is clearly more stringent than EPA requirements for handheld and most
non-handheld equipment.37 Portable generators and pressure washers are subject to evaporative
organic HC standards of 0.5/0.6/0.7 g/test for <80/80-225/>225 cc engines respectively (pressure
washers are all >225cc). For non-handheld equipment (including portable generators and
pressure washers), the EPA standards allow compliance with CARB's diurnal standards as an
option. Also, the CARB standards are diurnal+hot soak emissions, which is commonly referred
to as sealed housing for evaporative determination, or "SHED" testing. EPA's standards
applicable to these engines do not require SHED testing. EPA has non-zero permeation standards
for handheld equipment, which are clearly less stringent than CARB's zero emission standard for
handheld equipment. Similarly, for exhaust emissions, EPA's handheld standards are non-zero so
36 EPA also evaluates the first authorization criterion by assessing the numerical stringency of CARB's standard
compared to applicable Federal standards. Section 209(b)(2) supports this approach.
37 In simple terms, handheld equipment is carried by the operator during use and is meant to be used in a variety of
orientations, i.e., upside down, sideways, etc. Handheld equipment includes devices such as string trimmers, leaf
blowers, and chainsaws. Non-handheld equipment is everything else and includes equipment such as portable
generators and push or riding lawn mowers.
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less stringent than CARB's 2021 Amendments. EPA's non-handheld standards for class I
(<225cc) are 10.0/610 g/kWh for HC+NOx/CO and class II (>225cc) are 8.0/610 g/kWh for
HC+NOx/CO. In contrast, CARB's standards for <225cc are 6.0/400, 225-825cc are 3.0/200 and
>825cc are 0.80/20.6 which are all more stringent than EPA standards. CARB's pressure washer
exhaust standards are the same as their generator standards but apply only to the 225-825 and
>825 categories.
Because CARB's standards are zero for most equipment or more stringent than EPA
standards for non-handheld equipment in the 2024 through 2027 timeframe, and because those
latter standards go to zero for 2028 and later, it is readily apparent that CARB's SORE standards
are at least as protective as corresponding federal standards. Therefore, EPA cannot find that
CARB was arbitrary and capricious in its protectiveness determination and cannot deny CARB's
authorization request based on a finding under CAA section 209(e)(2)(A)(i).
Regarding the comment claiming that CARB's projected emission reductions associated
with the control of emissions from the SORE regulations are inaccurate, and that this inaccuracy
renders CARB's protectiveness determination arbitrary and capricious, EPA disagrees. Neither
this commenter nor any other has submitted information, data, or arguments as to why claimed
inaccuracies would render CARB's standards, whether alone or in the aggregate, to be less
protective than applicable federal standards. Any emission reductions from California's SORE
regulation (including those meeting the zero-emission equipment (ZEE) standards), would
support a finding that the State's standards are at least as protective as the federal since as noted
above EPA's standards are numerically less stringent, and this would be true whether the State's
standards are considered in the aggregate or individually. Commenters' claim that reductions
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resulting from the submitted standards may not be as large as estimated by CARB, even if true,
would not undermine the State's protectiveness determination.
To the extent comments assert that life cycle emissions, including emissions from
stationary sources such as facilities that manufacture equipment subject to the SORE rule, must
be considered in the protectiveness determination, EPA disagrees. Emissions from sources other
than those regulated by the standards submitted for waiver are outside the scope of the prescribed
authorization criteria in CAA section 209(e)(2)(A), including section 209(e)(2)(A)(i). Moreover,
the CAA does not require California to conduct a specific kind of public health and welfare
analysis, nor does it prescribe a method that California must use to make a protectiveness
determination. The text of CAA section 209(e)(2) requires a comparison of State and Federal
emission standards and does not suggest that in reviewing the State's determination EPA may
deny the waiver based on emissions from sources other than the regulated nonroad engines and
vehicles. The CAA's entire structure evidences a clear divide between stationary sources
(regulated under Title I) and mobile sources (regulated under Title II). There may be indirect
impacts of stationary source regulation on mobile sources and vice versa, and it may be
appropriate to consider those impacts in some circumstances, but it would be inappropriate and
contrary to the plain text of the CAA to conflate the consideration of indirect impacts, when
appropriate, with actually treating stationary source emissions as mobile source emissions.38 To
the extent such impacts and decisions could be relevant to CAA section 209(b)(1)(A),
38 Cf. Coal. For Responsible Regul., Inc. v. EPA, 684 F.3d 102, 128-29 (D.C. Cir. 2012), aff'dinpart, rev'dinpart
sub nom. Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014), and amended sub nom. Coal. For Responsible Regul.,
Inc. v. EPA, 606 F. App'x 6 (D.C. Cir. 2015) ("EPA was not arbitrary and capricious by not considering stationary-
source costs in its analyses.").
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commenters failed to adduce sufficient evidence to this argument pertaining to lifecycle emission
or other impacts considering California's technical findings relating to these issues.39
Accordingly, for the reasons noted above, EPA cannot find that CARB's protectiveness
finding is arbitrary and capricious, nor can we deny CARB's request for authorization of its
SORE regulations based on this criterion.
B. Second Authorization Criterion
Under CAA section 209(e)(2)(A)(ii), EPA must grant an authorization for California
nonroad vehicle and engines standards and accompanying enforcement procedures unless EPA
finds that California "does not need such State standards to meet compelling and extraordinary
conditions." EPA has traditionally interpreted this provision, consistent with its interpretation of
similar language in CAA section 209(b)(1)(B), as requiring consideration of whether conditions
in California justify the need for a separate nonroad vehicle and engine program to meet
compelling and extraordinary conditions, and not whether any given standard or set of standards
is necessary to meet such conditions.40
Congress intended to allow California to address its extraordinary environmental
conditions and foster its role as a laboratory for control of emissions from nonroad vehicles and
engines. The Agency's longstanding practice therefore has been to evaluate CARB's requests
with the broad discretion to allow California to select the means it determines best to protect the
health and welfare of its citizens in recognition of both the harsh reality of California's air
pollution and the importance of California's ability to serve as a pioneer and a laboratory for the
39 In CARB's Final Statement of Reasons (FSOR), EPA-HQ-OAR-2023-0151-0009, at 333, CARB stated that
commenters had not provided evidence that another technology would result in greater life-cycle emission benefits
than those that will occur with ZEE. Further, at p. 342 CARB noted that life cycle emissions were beyond the scope
of the Proposed Amendments and therefore CARB made no changes based on the commenters request for such an
analysis. CARB also noted that the scope of the rulemaking described in the October 2021 45-Day Notice does not
include performing life cycle emissions analysis.
40 See e.g., 82 FR 6525 (January 19, 2017); 78 FR 58090 (September 20, 2013).
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nation in setting new motor vehicle emission standards and developing control technology.41 EPA
notes that "the statute does not provide for any probing substantive review of the California
standards by federal officials."42 As a general matter, EPA has applied the traditional
interpretation in the same way for all air pollutants, criteria and GHG pollutants alike.43 In the
SORE Authorization Support Document, CARB stated that EPA has traditionally interpreted
CAA sections 209(b)(1)(B) and 209(e)(2)(A)(ii) as requiring an inquiry regarding California's
need for a separate motor vehicle and nonroad engine and equipment emissions control program,
respectively, to meet compelling and extraordinary conditions, and not whether any given
standard is necessary to meet such conditions.44 EPA has expressed this as an inquiry into "the
existence of 'compelling and extraordinary' conditions" of the kind for which a separate state
program of controls remains warranted.45 In other words, "review ... under section 209(b)(1)(B)
is not based on whether California has demonstrated a need for the particular regulations, but
upon whether California needs standards to meet compelling and extraordinary conditions."46
CARB's SORE Authorization Support Document includes a demonstration supporting its
conclusion that, with respect to the 2016 SORE Amendments, under either EPA's traditional
interpretation of this criterion, or under an alternative interpretation that considers California's
need for particular standards, EPA has no basis to deny this authorization request under this
criterion.47
41 See, e.g., S. Rep. No. 403, 90th Cong., 1st Sess. 33 (1967) (The waiver of preemption is for California's "unique
problems and pioneering efforts."); 113 Cong. Rec. 30950, 32478 ("[T]he State will act as a testing agent for
various types of controls and the country as a whole will be the beneficiary of this research.") (Statement of Sen.
Murphy).
42 Ford Motor v. EPA, 606 F.2d 1293, 1300 (D.C. Cir. 1979).
43 74 FR at 32763; 76 FR 34693; 79 FR 46256; 81 FR 95982; 88 FR 20688.
44 SORE Authorization Support Document at 27-29, 31.
45 Id.
46 Id.
47 Id, at 27.
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CARB also notes that California, particularly in the South Coast and San Joaquin Valley
Air Basins, continues to experience some of the worst air quality in the nation and the South
Coast and San Joaquin Valley Air Basins, in particular, continue to be in Extreme non-attainment
with National Ambient Air Quality Standards (NAAQS) for ozone and in Serious non-attainment
for the particulate matter (PM) NAAQS.48
CARB maintains that even if EPA applies a narrower standards-specific inquiry, the
record demonstrates that California "needs" the emissions-related requirements of the 2016
SORE Amendments to reduce criteria emissions in California. As discussed in the Initial
Statement of Reasons (ISOR) (Enclosure B), evaporative emissions from spark-ignition SORE
equipment are a significant source of reactive organic gas (ROG) and toxic air contaminant
(TAC) emissions. ROG emissions contribute to the formation of ground-level ozone, and the
nonattainment of NAAQS for ozone in California, including the South Coast and San Joaquin
Valley Air Basins, and emissions of TACs such as benzene pose a near-source health risk and
contribute to increased morbidity and mortality in California. CARB estimated there were
approximately 16.5 million SORE units in California with combined ROG evaporative emissions
totaling approximately 45 tons per day in 2016.49
With respect to the 2021 SORE Amendments, the SORE Authorization Support
Document notes that California must significantly reduce emissions of ozone and particulate
matter in order attain compliance with the federal NAAQS and state ambient air quality
standards established to protect the public health and safety. The most recent federal ozone
NAAQS standard is a level of 70 parts per billion, with a required attainment date in the South
Coast Air Basin by 2037. The federal PM2.5 NAAQS also requires action in California to achieve
48 Id.
49 CARB Initial Statement of Reasons (ISOR), EPA-HQ-OAR-2023-0151-0008.
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attainment, with a deadline of 2024 for the 35 micrograms per cubic meter (ug/m3) 24-hour
standard and 2025 for the 12 ug/m3 annual standard. Both NOx and ROG are critical precursors
to ozone, and NOx is also a precursor to secondary PM formation.50
CARB states that the SORE equipment regulated by the 2021 Amendments are
significant sources of harmful air pollutants, especially NOx and ROG. It is especially
noteworthy that SORE emit greater amounts of NOx and ROG in California than light-duty
passenger cars, both in summer and annually. California needs to achieve significant reductions
of NOx, PM2.5 and ROG in order to attain the NAAQS for ozone and particulate matter, and the
2021 Amendments are measures) that are designed to achieve the emissions reductions needed to
allow California to attain those NAAQS.51
Commenters asserted a number of arguments as to why the CARB regulatory history
from the 2016 Amendments, as well as CARB's 2016 State Implementation Plan (SIP), support
an argument that CARB had not demonstrated a need for the 2021 Amendments. A commenter
asserted that the 2021 Amendments are inconsistent with the targeted reductions in the 2016 SIP,
which identified specific strategies and reductions needed to meet federal air quality standards.
Commenters asserted (by including the same comments they submitted to CARB during the state
rulemaking) that there is no evidence to support the conclusion that the reductions from the 2021
Amendments are needed to address compelling and extraordinary conditions, rendering the 2021
Amendments "arbitrary and capricious and without basis."52
50 SORE Authorization Support Document at 32.
51 Id.
52 OPEI at Annex C, Comment 3. Commenters also argued that, based on Alternative 2 in CARB's ISOR document
released Oct. 12, 2021, Alternative 2 delayed implementation of ZEE until 2026 for most SORE and until 2030 for
portable generators, would still allow the state to meet its targeted 2016 SIP Strategy emission reduction goals for
SORE.
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Further, commenters argued that, according to CARB modeling, the Proposed Rule
would result in emissions reductions of 7.4 tpd NOx and 55 tpd ROG by 2031, well in excess of
what is needed or technologically feasible to meet the SIP goals.53
EPA also received comment that seemed to suggest that CARB has significantly
underestimated the rate at which market demand for ZEE products will continue to increase,
correspondingly displacing combustion small offroad equipment at a greater rate, and that CARB
has thus overestimated the emission reductions from the 2021 Amendments and thus need for
such standards.54
Another commenter argued that to properly regulate sources such as portable generators,
CARB must have more reliable data on which to base estimates of current emissions from these
sources.55
EPA also received comment that maintained that the 2021 Amendments failed to
comprehensively consider alternative solutions to meet federal air quality standards (e.g.,
consideration of lower emission limits, alternative fuels, alkylate fuels, E-fuels, other synthetic
fuels, hydrogen, carbon capture and re-use, and potential ZEE programs).56 The commenter
argued that the 2021 Amendments lack consideration of existing and future technologies that
may not only offer the reductions needed to meet federal air quality standards, but also may
ultimately result in product life-cycle emission benefits superior to ZEE, including in areas of
53 Id.
54 OPEI at Annex C, Comment 5.
55 PGMA at 8. This commenter contended that CARB's reliance on the 2018 Social Sciences Research Center
("SSRC") at California State University, Fullerton Survey ("SSRC Survey") has led to a serious overestimation of
the emissions associated with portable generators and thus a faulty premise on which the phase out to zero emissions
is based.
56 Stihl at 3.
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greenhouse gas reductions and related climate change benefits through product life cycle
analysis.57
EPA notes that in addition to the information contained in CARB's SORE Authorization
Support Document, the California rulemaking records (submitted to EPA as part of the
authorization request) contain CARB's responses to comments that were similarly raised during
the state rulemaking.
For example, within CARB's ISOR for its 2021 Amendments rulemaking, CARB stated
that the Proposed Amendments were necessary to meet CARB's obligation under California
Health and Safety Cost (HSC) section 43018 to "endeavor to achieve the maximum degree of
emission reduction possible from vehicular and other mobile sources in order to accomplish the
attainment of the state standards at the earliest practicable date." Replacing sales of internal
combustion engines in both on-road and off-road applications with zero-emission technology is
necessary to attain ambient air quality standards and protect the health and welfare of all
California residents.58
CARB also noted that its 2016 SIP included a measure estimated to reduce statewide
NOx and ROG emissions from SORE by 4 and 36 tons per day, respectively, in 2031. The 2021
Amendments would exceed those expected emission reductions to help California attain PM2.5
and ozone NAAQS.59 Nothing in the waiver criteria precludes CARB from achieving additional
emissions reductions than it has previously identified, so long as it continues to meet the waiver
criteria.
57 OPEI at Annex C, Comment 6. Note that OPEI's Annex C was OPEI's comments to California in response to the
SORE ISOR and the ISOR's request for comment. OPEI included those comments in their submittal to EPA under
the title Annex C.
58 ISOR at ES-2.
59 Id. atES-3.
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In CARB's FSOR, with respect to inventory modeling done by CARB, CARB stated that
they disagree with commenter assertions that the SORE2020 emissions inventory model
overestimates SORE emissions. As discussed in section IV. A. 14 of the FSOR, CARB notes that
the SORE2020 emissions inventory model is based on the best available data. CARB states that
comparison of the final activity estimates used in the SORE2020 emissions inventory model to
the U.S.EPANONROAD model and past models developed by CARB, as well as lawn and
garden surveys do not indicate any overestimation of annual usage or emissions by the
SORE2020 emissions inventory. Even if emissions were overestimated in the inventory, CARB
maintains that it would not mitigate the need for maximum emission reductions from SORE
(achieving emission standards of zero is feasible for SORE, regardless of the SORE emissions
inventory).60
With respect to the need for California's standards to meet compelling and extraordinary
conditions, EPA continues to apply the traditional interpretation of the waiver provision. As
stated above and similar to the SAFE 1 Reconsideration decision, EPA continues to believe the
best way to interpret this provision is to determine whether California continues to have
compelling and extraordinary conditions giving rise to a need for its own new motor vehicle
emission program.61 As explained below, EPA believes there continues to be ample factual
support for this conclusion. EPA finds that California has demonstrated that it needs its 2016 and
2021 SORE amendments as part of its nonroad emission program to address compelling and
extraordinary conditions.
The validity of the traditional interpretation was thoroughly considered in the SAFE 1
Reconsideration decision. EPA reviewed this issue in some detail in both EPA's 2008 GHG
60 FSOR at 330.
61 87 FR 14332 (March 14, 2022).
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waiver denial and subsequent 2009 GHG waiver decision, the 2013 ACC I waiver, and the 2023
HD ACT waiver.62 These actions present a longstanding and generally consistent (with the rare
exceptions as noted above) record of EPA's reasoned support for the traditional interpretation.
EPA notes that each of the regulations in the authorization request (the 2016 and the 2021
SORE Amendments) from CARB is clearly designed to address emissions of criteria pollutants
and will have that effect.63 As such, these standards are not categorically different than all prior
standards addressing criteria emissions that EPA has found to satisfy the CAA section
209(e)(2)(A)(ii) inquiry.
EPA notes that California, particularly in the South Coast and San Joaquin Valley Air
Basins, continues to experience some of the worst air quality in the nation. Several areas within
California exceed the NAAQS for both ozone and fine particulate matter with diameter of 2.5
micrometers or smaller (PM2.5). Currently, 19 areas within California, including the South Coast,
San Francisco Bay Area, and Sacramento County air basins, are nonattainment areas for NAAQS
for ozone. Four areas in California are in nonattainment with the NAAQS for PM2.5. California's
62 74 FR 32744 (July 8, 2009) (GHG waiver for CARB's first light-duty GHG standards); 78 FR 2211 (January 8,
2013) (ACC I waiver); 87 FR 14332 (March 14, 2022) (SAFE 1 reconsideration and reinstatement of ACC I waiver
for ZEV and GHG); 88 FR 20688 (April 6, 2023) (Heavy-Duty Advanced Clean Truck waiver).
63 See SORE Authorization Support Document at 32-33 ("California must significantly reduce emissions of ozone
and particulate matter in order attain compliance with the federal NAAQS and state ambient air quality standards
established to protect the public health and safety. The most recent federal ozone NAAQS standard is a level of 70
parts per billion, with a required attainment date in the South Coast Air Basin by 2037. The federal PM NAAQS
also requires action in California for attainment, with a deadline of 2024 for the 35 micrograms per cubic meter
(ug/m3) 24-hour standard and 2025 for the 12 ug/m3 annual standard. Both NOx and reactive organic gases (ROGs)
are critical precursors to ozone, and NOx is a precursor to secondary PM formation. As discussed in the 2021 ISOR,
the SORE regulated by the 2021 Amendments are significant sources of harmful air pollutants, especially NOx and
ROG. It is especially noteworthy that SORE emit greater amounts of NOx and ROG in California than light-duty
passenger cars, both in summer and annually. California needs to achieve significant reductions of NOx, PM2.5 and
ROG in order to attain the NAAQS for ozone and particulate matter, and the 2021 Amendments are measures in
California's 2016 State Implementation Plan (SIP) that are is designed to achieve the emissions reductions needed to
allow California to attain those NAAQS. The 2021 Amendments are projected to reduce cumulative statewide
emissions from SORE by approximately 58,844 tons of NOx, 421,924 tons of reactive organic gases (ROGs), 2,030
tons of fine particulate matter (PM2.5), and 13.8 million metric tons of carbon dioxide (C02) from 2023 to 2043.
These emissions reductions will assist California in attaining the national and state ambient air quality standards for
ozone and particulate matter, to address climate-change-induced harms, and to reduce serious risks to the health and
welfare of Californians.")
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South Coast and San Joaquin Valley Air Basins, in particular, continue to be in Extreme non-
attainment with NAAQS for ozone and in Serious non-attainment with NAAQS for particulate
matter.64 The unique geographical and climatic conditions, and the tremendous growth in on-road
motor vehicle and off-road vehicle and equipment populations, that moved Congress to authorize
California to establish separate on-road motor vehicle standards in 1967 and nonroad engine
standards in 1990, still exist today.
Based on a review of the authorization record, the opponents have not demonstrated that
California no longer has a need for its nonroad emission program, including its SORE
regulations (2016 and 2021 SORE Amendments). California continues to experience some of the
worst air quality in the country (measured by the NAAQS status of number of areas within
California) as well as localized public health effects. The record here, as presented by CARB, is
plainly based on the compelling and extraordinary conditions in California and the corresponding
need for CARB's nonroad emission program.
CARB's Board Resolutions and its authorization request plainly set forth its basis to
demonstrate the need for its nonroad emission program to meet compelling and extraordinary
conditions under the second authorization criterion. Further, EPA does not evaluate the record
before it under CAA section 209(e)(2)(A), including whether there is a need for "such standards"
to meet compelling and extraordinary conditions in California, based on other possible policy
choices that California may choose or claims that CARB's modeling of emission reductions
associated with the SORE Amendments are inaccurate.65 Regardless, the record demonstrates
64 https://www3.epa.gOv/airqnalitY/greenbook/ancl.html#CA. last consulted November 30, 2024, located at EPA-
HQ-OAR-2023-0152.
65 To the extent CARB's program in the aggregate requires less emissions reductions than the Federal program, then
it would not qualify for authorization under the first prong. However, as we explain in the first prong discussion, this
is not the case, and EPA finds that CARB's protectiveness finding is not arbitrary and capricious.
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that emission reductions will occur due to the SORE Amendments and that such reductions, as
part of CARB's nonroad emission program, are needed to meet compelling and extraordinary
conditions.66
CARB has repeatedly demonstrated the need for its nonroad engines and vehicles
emissions program to address compelling and extraordinary conditions throughout the state of
California, including in its nonattainment areas. The opponents of the authorization have not
demonstrated that California does not need its nonroad emissions program to meet compelling
and extraordinary conditions. Therefore, I determine that I cannot deny the authorization requests
under C AA section 209(e)(2)(A)(ii) based on EPA s traditional interpretation of the criterion. In
addition, in the event that the need for CARB's SORE Amendments is to be independently
evaluated, the opponents of the authorization have not demonstrated that California does not
need the SORE Amendments to meet compelling and extraordinary conditions. As noted above,
there continues to be compelling and extraordinary conditions in California that are giving rise to
serious air quality issues throughout the state. The SORE Amendments, based on information in
the record, will achieve emission reductions associated with evaporative emissions and the 2021
66 EPA has on several occasions noted, responding to assertions that California's standards must be evaluated in the
context of actions that have been or could be taken by states adopting California standards, that the plain text of
CAA section 209 as well as the legislative history of the section limit EPA's consideration of the California standards
to the state of California and do not extend to other states. See e.g., 78 FR 2112, 2132 (January 9, 2013). Similarly,
"[t]he 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. 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." (emphasis added), 78 FR at 2115.
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Amendments will reduce statewide emissions of criteria pollutants that are designed to help
mitigate the serious air quality conditions.67 Therefore, I determine that I cannot deny the
authorization requests under CAA section 209(e)(2)(A)(ii), under an alternative interpretation
that requires an assessment of each CARB standard within this second criterion.68
C. Third Authorization Criterion
CAA section 209(e)(2)(A)(iii) instructs that EPA cannot grant an authorization if
California's standards and enforcement procedures are not consistent with "this section." As
noted above, EPA's 1994 rule sets forth, among other things, regulations providing the criteria, as
found in CAA section 209(e)(2)(A), which EPA must consider before granting any California
authorization request for new nonroad engine or vehicle emission standards.69 EPA has
traditionally interpreted the CAA section 209(e)(2)(A)(iii) "consistency" inquiry to require that
California standards and enforcement procedures be consistent with CAA 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).70
1. Consistency with CAA Section 209(a)
To be consistent with CAA section 209(a), California's 2016 and 2021 SORE
Amendments must not apply to new motor vehicles or new motor vehicle engines. This is the
case here. California's SORE Amendments expressly apply only to nonroad engines and do not
apply to motor vehicles or engines used in motor vehicles as defined by CAA section 216(2).71
We did not receive any comments on California's consistency with CAA section 209(a).
67 SORE Authorization Support Document at 2.
68 EPA does not believe the alternative interpretation is correct here but nevertheless provides its analysis and
conclusion under this interpretation.
69 See 40 CFR part 1074.
70 59 FR 36982-83.
71 The regulated vehicles are not "self-propelled vehicles designed for transporting persons or property on a street or
highway." CAA section 216(2).
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Therefore, EPA cannot deny California's request on the basis that California's SORE
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 and 2021 SORE
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 SORE
Amendments do not affect such permanently preempted vehicles or engines. EPA did not receive
any comments regarding California's consistency with CAA section 209(e)(1). Therefore, EPA
cannot deny California's request on the basis that California's SORE Amendments are not
consistent with CAA section 209(e)(1).72
3. Consistency with CAA Section 209(b)(1)(C)
a. Historical Context
As explained above, EPA has historically interpreted the CAA section 209(e)(2)(A)(iii)
consistency requirement to mean that California's standards must be consistent with CAA section
209(b)(1)(C) and therefore consistent with CAA section 202(a). EPA has interpreted consistency
with CAA 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
72 EPA notes that 40 CFR, Part 1074, section 1074.10(a) codifies the prohibition in CAA section 209(e)(1) and
provides that state and localities are preempted from adopting and enforcing standards or other requirements relating
to the control of emissions from new engines smaller than 175 horsepower that are primarily used in farm or
construction equipment or vehicles, as defined in Part 1074. 40 CFR 1074.5 provides definitions of the terms used in
40 CFR 1074.10(a). EPA anticipates that CARB will implement its SORE regulations consistent with these federal
regulatory provisions.
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engine.73 We often refer to the first element by the shorthand of "technological feasibility". 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.74
Under CAA section 209(b)(1)(C), EPA must grant California's waiver (or authorization)
request unless the Agency finds that California standards and accompanying enforcement
procedures are "not consistent" with CAA section 202(a). CAA section 202(a)(2) specifies that
standards are to "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."
EPA has long limited its evaluation of whether California's standards are consistent with
CAA section 202(a) to determining 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 period; or whether (2) California and Federal test procedures are
incompatible so that a single vehicle could not be subjected to both tests. EPA has also explained
that "the import of section 209(b) is not that California and Federal standards be identical, but
that the Administrator not grant a waiver of Federal preemption where compliance with the
California standards is not technologically feasible within available lead time." Further, EPA's
review is limited to the record on feasibility of the technology. Therefore, EPA's review is narrow
and does not extend to, for example, whether the regulations under review are the most effective,
whether the technology incentivized by California's regulations are the best policy choice,
73 See 61 FR 53371, 53372 (Oct. 11, 1996).
74MEMA /, 627, F.2d at 1126.
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whether EPA has the authority under the CAA to set such standards (versus California's
sovereign authority to set its standards), or whether better choices should be evaluated. The
Administrator has thus long explained that "questions concerning the effectiveness of the
available technology are also within the category outside my permissible scope of inquiry,"
under CAA section 209(b)(1)(C).75
California's accompanying enforcement procedures would also be inconsistent with CAA
section 202(a) if the Federal and California test procedures conflicted, i.e., if manufacturers
would be unable to meet both the California and Federal test requirements with the same test
vehicle.
In determining whether there is inadequate lead time to permit the development of
technology, EPA considers whether adequate technology is presently available or already in
existence and in use. If technology is not presently available, EPA will consider whether
California has provided adequate lead time for the development and application of necessary
technology prior to the effective date of the standards for which a waiver is being sought.
Additionally, the D.C. Circuit has held that "[i]n the waiver context, section 202(a)
relates in relevant part to technological feasibility and to federal certification requirements. The
technological feasibility component of section 202(a) obligates California to allow sufficient lead
time to permit manufacturers to develop and apply the necessary technology. The federal
certification component ensures that the Federal and California test procedures do not impose
75 41 FR 44209, 44210 (October 7, 1976); 47 FR 7306, 7310 (February 18, 1982) ("I am not empowered under the
Act to consider the effectiveness of California's regulations, since Congress intended that California should be the
judge of 'the best means to protect the health of its citizens and the public welfare.'" (Internal citations omitted)).
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inconsistent certification requirements. Neither the Court nor the agency has ever interpreted
compliance with section 202(a) to require more."76
Regarding the costs portion of the technology feasibility analysis, when cost is at issue
EPA evaluates the cost of developing and implementing control technology in the actual time
provided by the California regulations. The D.C. Circuit has stated that compliance cost "relates
to the timing of a particular emission control regulation."77 The Court, in MEMA /, opined that
CAA section 202's cost of compliance concern, juxtaposed as it is with the requirement that the
Administrator provide the requisite lead time to allow technological developments, refers to the
economic costs of motor vehicle emission standards and accompanying enforcement
procedures.78
b. 2016 SORE Amendments
CARB notes in their authorization request that the 2016 Amendments present no issues
regarding technical feasibility or lead time, as they primarily amend preexisting certification
procedures and align California test requirements with corresponding federal test procedures.
CARB also notes that the fuel line permeation standards established by the 2016 Amendments
present no issues regarding technical feasibility because those standards are identical to existing
federal fuel line permeation standards. Moreover, CARB states that engine manufacturers have
been submitting certification applications consistent with the 2016 Amendments since their
effective date in 2018. Consequently, CARB concludes that the 2016 Amendments do not require
16 Motor Equipment Manufacturers Association v. Nichols (MEMA II) 143 F.3d 449 (D.C. Cir 1998).
11 MEMA I at 111.
78 Id. See S. Rep. No. 192, 89th Cong., 1st Sess. 5-8 (1965); H.R. Rep. No. 728 90th Cong., 1st Sess. 23 (1967),
reprinted in U.S. Code Cong. & Admin. News 1967, p. 1938. It relates to the timing of a particular emission control
regulation rather than to its social implications.
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the development or utilization of new technology and accordingly present no issue of technical
feasibility or lead times.79
Regarding the costs of the 2016 Amendments, CARB notes that a key element in
consideration of costs is whether manufacturers can pass regulatory costs onto consumers or
absorb the costs without incurring significant economic disruption. The 2016 Amendments are
not expected to have a significant adverse economic impact on businesses, as they primarily only
entail incremental costs for additional testing. Installation and operation costs of SHEDs were
fully accounted for in the 2003 SORE Amendments. CARB estimated that the maximum
increase in price for SORE sold in California associated with the 2016 Amendments would be
$2.72 per unit.80
Regarding consistency of test procedures, CARB argued in their authorization request
that no issues exist regarding inconsistency between federal and California evaporative emission
test procedures that preclude manufacturers from meeting both California and federal
requirements with the same test engines. Instead, CARB specifically enacted the 2016
Amendments, in part, to more closely align the SORE evaporative emission test requirements
with the corresponding federal requirements.81
As explained above, EPA has historically applied a consistency test under CAA section
202(a) that calls for the Administrator to first review whether adequate technology already exists,
and if it does not, whether there is adequate time to develop and apply the technology before the
standards go into effect. After a review of the record including comments received in this
proceeding, EPA has determined that there is no basis on which to conclude that these
79 SORE Authorization Support Document at 25.
80 Id. at 25-26.
81 Id. at 26.
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regulations are inconsistent with CAA section 202(a). As noted above, CARB's authorization
request indicated that control technology either presently exists or is in use.82 Therefore, because
manufacturers have submitted certification applications for engines meeting the requirements of
the 2016 Amendments and there is nothing in the record to support a finding otherwise,
opponents of the authorization have not met their burden of proof to demonstrate technological
infeasibility.
Therefore, based on the record before us, the opponents of the 2016 SORE Amendments
authorization have not met their requisite burden of proof to demonstrate that such requirements
are inconsistent with CAA section 202(a). Further, CARB projected the costs associated with the
2016 Amendments to be low and we see nothing in the record from the regulated industry that
provides a countering estimate. Lastly, EPA concurs with CARB that a single engine can be used
to demonstrate compliance with both CARB and federal requirements. Thus, EPA cannot deny
CARB's 2016 SORE Amendments authorization request on this basis and therefore I cannot
deny the authorization request based on the third authorization criterion,
c. 2021 SORE Amendments
i. Technology
In the authorization request, CARB states that the 2021 Amendments present no issues
regarding technical feasibility because the required technology already exists. CARB concluded
in the rulemaking record for the 2021 Amendments that zero-emissions equipment (ZEE) was at
that time already available for most SORE equipment categories, including lawn and garden
82 See SORE Authorization Support Document at page 25 where CARB states, "the 2016 Amendments present no
issues regarding technical feasibility because those standards are identical to existing federal fuel line permeation
standards. Moreover, engine manufacturers have been submitting certification applications consistent with the 2016
Amendments since their effective date in 2018. Consequently the 2016 Amendments do not require the development
or utilization of new technology and accordingly present no issue of technical feasibility or lead times."
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equipment and utility equipment, for both residential and professional use. CARB noted the
availability of at least 35 brands of zero-emission lawn mowers, with several brands directed at
professional users. CARB also noted that advancements in technologies, such as brushless
electric motors, have led to a significant increase in the efficiency of equipment. Furthermore,
currently available ZEE exhibit performance characteristics that are comparable to their internal
combustion engine powered counterparts.83
CARB also noted that approximately 52 percent of SORE equipment used in California is
already ZEE, although the fraction of that equipment that is ZEE varies across the type of
equipment. Approximately 99 percent of pumps are ZEE, and 5 percent of riding mowers are
ZEE. The fraction of SORE equipment that is ZEE also varies by user type, from 55 percent for
residential users to 6 percent for professional landscapers. However, at least 12 brands of zero-
emission lawn and garden equipment are currently offering ZEE designed for professional
84
users.
CARB noted that the 2021 Amendments provide manufacturers of generators additional
time to comply with the zero-emission standards. While zero-emission generators are currently
available, CARB also noted that the 2021 Amendments establish exhaust and evaporative
emission standards for MY 2024 through 2027 generators that are more stringent than the
preexisting standards, but that are not zero, to provide manufacturers additional time to
incorporate needed technology into their products. CARB stated that these interim emission
standards are technically feasible, since manufacturers have already certified SORE capable of
powering generators to these emissions levels. With regard to the emissions standards for 2028
and subsequent MY generators, CARB noted these standards present no issues of technical
83 SORE Authorization Support Document at 34-35.
84 Id.
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feasibility since they provide manufacturers over five years to implement currently available
compliance technology into their products.85
CARB notes that the 2021 Amendments additionally allow manufacturers of pressure
washers powered by engines with displacements of 225 cc or higher to meet the zero-emission
standard in 2028, instead of 2024. CARB notes that no issues of technical feasibility arise with
these standards because the technology needed to produce zero-emitting, lower power rated
pressure washers currently exists - indeed, zero-emitting pressure washers within this category
are currently commercially available, and the 2021 Amendments additionally provide
manufacturers over five years to implement currently available compliance technology into their
products, while also accounting for the high-power demands of such washers.86
CARB concludes that the 2021 Amendments are consistent with CAA section 202(a)
because the required technology is already commercially available, and the 2021 Amendments
additionally provide manufacturers of generators and high-power pressure washers over five
years to implement currently available compliance technology into their products.87
EPA received comments from opponents of the authorization that question the availability
of the emission control technology necessary to meet the SORE requirements. A commenter
noted that most of the electric equipment sold are for residential use. This commenter argued
that, even with the increases in quantity and variety of electrification of outdoor power
equipment, there is currently no one-size-fits-all transition approach for the full range of small
spark-ignited engine powered equipment and use cases. This commenter asserted that despite the
85 Id. at 35. Note that ZEE portable generators do not actually generate electricity as do spark-ignition SORE
portable generators. However, ZEE portable generators store power and can deliver that power analogous to the use-
case of a spark-ignition SORE portable generator.
86 Wat 35.
w Id at 35.
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progress in product availability, battery-electric powered equipment technical feasibility and cost
challenges remain for some SORE equipment configuration and users, and that this is especially
the case for landscape and construction professionals, emergency responders, and large
landowners who demand steady performance and long run times.88
The same commenter argued that there is no proof that zero-emissions SORE and SORE-
powered equipment are technologically feasible and suggested that there are no CARB or EPA
SORE or SORE-powered equipment certified to zero-emissions limits.89 This commenter also
questioned the run time of leaf blowers running on batteries versus gas-powered units, and that
CARB has provided no analysis of the availability of handheld blowers for professional use.90
Commenters also argued that CARB has not made any demonstration proving that ZEE
are both available and capable of performing equivalently to the gasoline engine-powered
equipment currently on the market.91 Another commenter asserted that a key component of
technological feasibility is establishing what the baseline technology can do today under the
existing regulations and then determining whether the technology that can meet the new
standards can also function in substantially the same manner.92 A commenter claimed that from a
macro level, there is currently not enough electric equipment in the stream of commerce due to
supply chain issues and even if the equipment were available the dealerships that play a critical
role in assisting in maintaining this equipment are not yet in place.93 Professional landscapers
commented that ZEE is not technically feasible for the landscape industry at this time. They
argued that the commercial-grade ZEE currently on the market has significant performance and
88 OPEI at 3.
89 OPEI at 7.
90 OPEI at 26-27.
91 EMAat 10.
92 PGMAat 10.
93 NALP at 2.
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cost issues. The commenter claimed that CARB ignored their concerns and failed to properly
model the cost and performance hurdles during consideration of the rule. The commenter stated
that it is unrealistic to require commercial landscape professionals to utilize equipment reliant on
batteries that are optimized to perform between 58°- 68° Fahrenheit when summer heatwaves
can bring temperatures that regularly exceed 90° Fahrenheit, and that this goes to the heart of
technical feasibility.94
With regard to portable generators, commenters argued that the 2021 Amendments will
negatively impact public health and welfare because consumers will be unable to operate
necessary medical equipment in the event of emergency power outages.95 Commenters also
argued that these amendments will reduce generator and extended power availability during
those emergencies.96 Commenters predicted that, after the 2024 emission requirement changes,
costs will increase as high efficiency generators will only be available for purchase in
California.97 A commenter noted that users will then rely on costly wind and/or solar generation,
if available, to recharge a designated ZEE generator during emergencies where the electrical
power grid is not operational.98 The commenter argued that portable generators are typically used
during emergency situations and require minimal effort for operation. This commenter argued
that the best-case scenario is an operator with a ZEE generator fully charged at the beginning of
an emergency power outage, consequently the operator will not be able to use the full ZEE
generator capacity until electrical power has been restored.99
94 NALP at 1-2.
95 PGMAat 14-15.
96 Id.
91 Id.
9S Id.
99 PGMAat 14-15.
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Further, commenters stated that the Amendments do not fully appreciate the fact that
spark-ignited portable generators are a unique product, used primarily for emergency home
backup power, unlike other SORE equipment and zero emission generators, which are used
primarily for discretionary activities.100
Another commenter argued that ZEE lacks the same performance capabilities as spark-
ignition SORE and requires frequent battery changes both of which reduce the productivity and
efficiency of a landscape crew in the field. They argued that this reduction in productivity creates
operational difficulties for landscape companies at a time when they are already faced with a
historic workforce crisis. This commenter stated that landscape companies will have to rely on
less efficient equipment that takes more time and requires additional labor to perform the same
task in the same amount of time to remain competitive and profitable. The commenter argues
that the landscape industry needs additional time to gather the data and resources to begin to
make an economically responsible and sustainable transition.101
EPA has evaluated the state rulemaking documents that CARB submitted as part of its
authorization request along with its Supplemental Comment Letter to determine whether CARB
has addressed the issues raised by opponents of the authorization and whether the opponents
have met their burden of proof to demonstrate that CARB's 2021 SORE Amendments are
technologically infeasible.
In their ISOR,102 CARB noted that ZEE have been available for many equipment types
for decades and that the level of performance, number of brands, and number of equipment
options have increased greatly and continue to do so today. Among other things, the record
100 PGMAat 2, 6.
101 NALP at 4.
102 "Public Hearing to Consider Proposed Amendments to the Small Off-Road Engine Regulations: Transition to
Zero Emissions," October 12, 2021.
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shows that advances in battery technology have caused the price of batteries to fall precipitously
and the increased use of brushless electric motors has led to significant increases in the efficiency
of equipment using that technology.
In the ISOR, CARB evaluated some of the most popular types of small off-road
equipment available in the market for both residential and professional use. CARB
acknowledged that the comparison was not comprehensive and did not demonstrate that the
spark-ignition SORE equipment and ZEE have identical performance.103 For both residential and
professional equipment analyses, CARB evaluated spark-ignition SORE equipment and their
ZEE equivalents in the nine most common types of small off-road equipment. For residential
equipment, CARB stated that these covered 98 percent of in-use residential SORE equipment
that would be impacted by the rule, and for professional equipment they made up 91 percent of
the SORE equipment that would be impacted.104
CARB found there to be ZEE counterparts to each of the spark-ignition SORE pieces of
equipment they evaluated. CARB acknowledged that the ZEE and spark-ignition SORE
equipment they evaluated may have had different run times, but the ZEE run times could be
extended with additional batteries. CARB stated that, while additional batteries would increase
the cost of the equipment needed to complete a given job, users would likely make back the
additional cost through decreased maintenance and fuel costs.105
CARB also acknowledged that, while ZEE can perform the same jobs as spark-ignited
equipment, there are differences in operator experience despite ZEE having been designed to
mimic the user experience of spark-ignition SORE equipment. Noting the timing of battery
103Id. at 13.
l(n Id.
105Id., at 15.
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charging that needs to be considered, CARB assumed that professional users would purchase
sufficient batteries for a typical day of use after overnight charging. CARB noted that users
would need sufficient electrical service and outlets to run battery chargers overnight unless
recharging was possible at job sites.106 CARB contrasted the ZEE experience to spark-ignition
equipment where users would need to make regular trips to gas stations to fill a portable fuel
container which could then be used to transfer gasoline to the equipment all of which can take
considerable time.107 CARB also provided comparisons of equipment lifetimes, warranty periods
and maintenance considerations all of which were favorable or similar for ZEE as compared to
spark-ignition SORE equipment.108
Regarding generators, CARB noted that they are different from other SORE in that their
function—to generate electricity—is not done via a motor but instead by converting chemical
energy to electrical energy. CARB acknowledged that the run time of a zero-emission generator
that does not have solar or wind attachments is determined by the energy storage and loads
placed on the generator. As such, longer run times under similar loads require larger energy
storage (i.e., more battery capacity) and higher cost.109 CARB noted that hydrogen fuel cell
powered generators have also been introduced in the market and could become more
prevalent.110
CARB provided several examples of zero-emission generators capable of meeting the
needs of users, including residential units capable of powering a refrigerator for 3 to 4 days and a
commercial unit capable of storing 80 kilowatt-hours of energy with a rated power output of 11
106 Id. at 17.
107 Id. at 18.
108 Id. at 18-21.
109 Id. at 14-15.
110 Id. at 24.
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kilowatts. CARB acknowledged that this latter unit carries a higher price than spark-ignition
SORE generators but also pointed to incentive programs such as California's Clean Off-Road
Equipment Voucher Incentive Project (CORE). CARB also pointed to some new electric vehicles
such as the Ford F-150 Lightning pickup that allows for use of electricity from the vehicle
battery pack to power a professional's tools. Further, such vehicles can be used to provide
backup power to a home.111
However, CARB concluded that more time is needed to transition from gasoline-fueled
portable generators to ZEE portable generators. In support of its decision to delay the compliance
date, CARB cited: that options currently are limited and often available only at higher costs; that
the current supply might not meet future demand; that options for non-grid charging of zero-
emission generators are costly; and that the zero-emission generator market needs more time to
mature to better meet demand for backup power. Regarding the last of these reasons, CARB
points to concerns over public-safety power shutoffs which occur during periods of increased fire
danger and the need for increased use of microgrids and transmission line switches that allow for
very localized public-safety power shutoffs. For these reasons, CARB delayed compliance for
the portable generator ZEE standards until 2028.112
In the Final Statement of Reasons and in their May 2024 Supplemental Comment Letter,
Exhibit B, CARB stated that the availability, level of performance, number of brands, and
number of ZEE options for both residential and professional use have increased greatly and
continue to do so today. Battery and electric motor technology has advanced rapidly in recent
years, while costs have declined. For the most common types of SORE equipment, there are ZEE
equivalents available in the market with similar or better performance characteristics and
111 Id. at 24-25.
112 Id. at 26.
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lifetime. Exhibit A provides more example of ZEE available today for both residential and
professional users.113
Based on the record, EPA finds that the opponents of the authorization have not met their
burden of proof regarding their claims that the requisite technology is not available. In their
Supplemental Comment Letter to EPA, CARB provided a summary of ZEE available in the
market as of April 2024.114 That list contains numerous examples of ZEE already available in a
variety of different types of residential and commercial or professional applications. CARB's
demonstration supports the conclusion that requisite technology exists currently. Further, there is
no information in the record that demonstrates that an application exists for which such
technology could not be used.115
Regarding the functionality of SORE and SORE equipment, while commenters argue that
the ZEE must first be proven to provide the same functionality as spark-ignition equivalents it is
intended to replace, the functionality of such equipment is ultimately based on consumer
demand, evolution of ZEE technology, and CARB's policy choices regarding the core function
of the equipment. EPA does not believe the statutory requirement that emission control
technology be feasible means that a demonstration of absolute equivalency for the end user is
required before an authorization may be granted. Feasibility and the criteria for such an
evaluation is not based on a defined manner by which a zero-turn lawnmower must be capable of
operating non-stop for any set time. The requirement that emission controls be technically
113FSOR, at 274. CARB Supplemental Comment Letter, Exhibit B at 11.
114 CARB Supplemental Comment Letter, Exhibit A.
115 The California Alliance for Golf (CAG) commented that there are some pieces of equipment for which no ZEE
exist. However, Smithco offers an electric bunker rake (see https://sniithco.com/prodnct/sand-star-e-48v-ac/.
accessed December 6, 2024, and see "Smithco_BunkerRake.pdf' in Docket ID EPA-HQ-OAR-2023-0151). In
addition, John Deere offers an electric greens mower (see https://www.deere.com/en/mowers/watk-greens-
mowers/225~e~ent-niower/. accessed December 6, 2024, and see "JohnDeere_ElectricGreensMower.pdf' in Docket
ID EPA-HQ-OAR-2023-0151). The availability of this equipment appears to contradict CAG's assertion.
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feasibility does not foreclose the State from regulating emissions in a way that shifts end users
towards a different mode of operation. There are positives and negatives to ZEE when compared
to spark-ignition SORE, and CARB has not suggested otherwise. Nevertheless, EPA believes it is
CARB's policy choice for the types of products to be available to meet market demand as well as
the decision of manufacturers at any given time.
While commenters claim that ZEE does not perform to the same specifications as spark-
ignition SORE, these comments do not demonstrate that the technology is not feasible. For
example, the need to recharge batteries affects the amount of time necessary to complete a task
that will require recharging to complete but does not make the use case infeasible. As we have
explained, under EPA's longstanding approach to the third prong, there is a significant distinction
between requisite feasibility and the kinds of issues that commenters raise concerning the
different characteristics of spark-ignition SORE and ZEE models. We note, moreover, that while
spark-ignition SORE equipment may offer what some consumers perceive as superior
characteristics in some areas (e.g., lower upfront costs, ability to fuel at gas stations, etc.), ZEEs
may offer what other consumers perceive as superior characteristics (e.g., reduced operating and
maintenance costs, quieter operation, etc.). The availability of equipment with any particular
such characteristic in the California market is not a matter of feasibility, but rather a policy
choice reserved to the State.
The test for feasibility under the third prong does not require that there be a currently
available ZEE for every possible use case currently served by spark-ignition SORE
equipment.116 Whether any particular product remains available in California is distinct from the
116 87 FR 18887, 18892 (May 3, 1984) ("EPA has long held that consistency with section 202(a) does not require
that all manufacturers be permitted to sell all motor vehicle models in California. Rather, as discussed below, EPA
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question of feasibility. In response to the SORE rule, a manufacturer will determine which
product offerings to make available in the California marketplace. These market choices could
include offering for sale a limited set of products. Congress left for California—not to EPA—the
policy choice that California's standards might result in some reduction of equipment availability
for its citizens. In the motor vehicle waiver context, EPA has long held that consistency with
CAA section 202(a) does not require that all manufacturers be able to sell all motor vehicle
models in California, and EPA has found California standards consistent with section 202(a) in
cases where availability of certain models in California was suspended but the "basic market
demand" for the class of motor vehicles was satisfied.117 Here, the "basic market demand" for
SORE is clearly met. The record demonstrates that for the most commonly produced types of
SORE, ZEE already exist and are being used today. That ZEE for certain specialized use cases
may not currently exist, or certain manufacturers may have reduced product offerings in
California does not undermine EPA's conclusion as to "basic market demand"—particularly
where the evidence indicates that ZEE can be applied to such specialized use cases and many
manufacturers who have historically focused on spark-ignition SORE are rapidly developing
ZEE products. Indeed, as CARB's submissions and EPA's own research demonstrates, large
has found California standards consistent with section 202(a) in cases where certain models were eliminated but the
"basic market demand" was satisfied."). Further, in granting a waiver to California to implement standards more
stringent than Federal standards for the 1975 model year, and which would force the introduction of catalyst
technology, the Administrator acknowledged: "At these levels, I expect the manufacturers to market a full range of
vehicles in California, although there may well be a few models of some manufacturers which do not meet these
standards. Any unmarketed models would be expected to be replaced by other models of the same manufacturer, or
by vehicles sold by other manufacturers. In this way, competitive pressure is likely to be forced for clean air." 38 FR
10317 (April 26,1973).
117 88 FR 20711 n.207; 49 FR 18892 (without deciding whether the "basic demand" test applies in the California
waiver case, concluding that the test was met and thus the waiver cannot be denied based on feasibility, and also
collecting early authorities including 38 FR 10317, 41 FR 442099, 44213, and International Harvester v.
Ruckelshaus, 478 F 2d. 615, 640 (D.C. Cir. 1979) ("We are inclined to agree with the Administrator that as long as
feasible technology permits the demand for new passenger automobiles to be generally met, the basic requirements
of the Act would be satisfied, even though this might occasion fewer models and a more limited choice of engine
types. The driving preferences of hot rodders are not to outweigh the goal of a clean environment.")).
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numbers of new ZEE products, produced by diverse manufacturers, have appeared in the period
since CARB first proposed the 2021 Amendments.
Returning to the issue of performance, EPA finds that the opponents of the authorization
have not met their burden of proof to show a lack of technical feasibility. In the SORE rule,
California has effectively made a policy choice that effects a change in the sale of new
equipment and will, over time, shift end users from spark-ignition SORE to ZEE. Operationally,
ZEE differs in significant respects from spark-ignition SORE. The State's evaluation of this
performance is both reasonable and reasonably explained. ZEE is in some ways operationally
superior to spark-ignition SORE: electric motors generally have very good power characteristics
and have better efficiency relative to gasoline powered engines. Electric motors also have
limitations on duration of operation that are not typically presented by spark-ignition SORE. EPA
believes that the primary concern of many commenters is energy capacity of ZEE relative to
spark-ignition SORE and the expectation that a certain level of battery capacity will be required
to provide the same operational run time as the spark-ignition SORE being replaced. To the
extent this aspect of performance presents cost issues, this is discussed below. One commenter
expressed concerns over batteries optimized to operate in limited temperature ranges but
provided no evidence that user experiences with battery life were directly correlated to
temperature ranges and not to improper storage, charging behavior or other possible causes.
Regarding the SORE standards applicable to portable generators and pressure washers for
the 2024 through 2027 model years, a number of engines are certified to those standards as of
March 2024,118 including engines intended for use in both portable generators and pressure
washers that meet the 2024 through 2027 standards without use of credits. This demonstrates that
118 CARB Supplemental Comment Letter, Exhibit C.
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the standards are feasible. Responding to commenters critical of the State's decision to adopt
interim standards, we note that it remains CARB's policy choice to require these interim
standards in advance of ZEE standards in 2028.
An important consideration in the authorization decision is that many comments from the
makers of equipment did not claim infeasibility surrounding the technology. Instead, they
expressed concern about the lead time available to provide a full suite of ZEE products to fill the
needs of the user base. The issue of lead time is discussed below,
ii. Lead Time
Commenters argued that CARB's 2021 Amendments were not consistent with CAA
section 202(a) in that insufficient lead time had been provided by CARB. One commenter noted
that while a given manufacturer may be able to implement the ZEE transition for more than one
product line at a time, a reasonable timeline for converting all of a manufacturers' covered
product lines from spark-ignition to ZEE is 6-8 years transition, not the one full model year that
CARB provided.119 The commenter argued that CARB filed its authorization request on
December 20, 2022, just days before certain of the SORE Amendments were scheduled to take
effect.120 Further, this commenter argued that the actual timeline that manufacturers need to
convert non-handheld products to ZEE is more than two years per product-line. The commenter
maintained that CARB has no real-world data, and no actual technical testing or data
quantification, to support the mandated near-immediate and wholesale transition to ZEE.121 A
commenter argued that the Amendments do not provide adequate lead time for manufacturers to
redesign SORE to meet the model year 2024 zero-emissions limits, or further reduce emissions
119 EMAat 9.
120 Ibid at 1.
121 EMAat 3.
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and optimize the use of credits in response to the new standards, and/or meet reduced limits for
portable generator and pressure washer applications. As a result, this commenter claimed that
engine and equipment manufacturers will be forced out of the California market for model year
2024.122
A commenter argued that CARB's proposed "Transition to Zero Emissions" amendments are
based on an infeasible timeline that is divorced from the reality of the state of technology.123
EPA has considered comments received in the context of CARB's authorization request,
the state rulemaking record, and the Supplemental Comment Letter from CARB. In the Initial
Statement of Reasons, CARB noted that ZEE have been available for many equipment types for
decades, and the number of equipment options have increased greatly and continue to do so.
Recent developments—including brushless electric motors and falling battery prices—have led
to a significant increase in ZEE product development over the last several years. CARB
acknowledged that residential ZEE is more prevalent than professional ZEE and that ZEE is
more prevalent in some equipment types (e.g., residential lawn and garden, corded pressure
washers) than in others (professional lawn and garden, portable generators).124 CARB's well-
researched and documented findings support the conclusion that the transition from spark-
ignition SORE to ZEE has been ongoing and robust for some time. While some manufacturers
may have chosen to continue to focus production on spark-ignition SORE products, other
manufacturers are more advanced in their transition to ZEE, while other manufacturers produce
ZEE products exclusively. Overall, the record supports the conclusion that no additional lead
time is necessary for a large majority of ZEE products that serve the functions historically
122 OPEI at 8.
123 Briggs & Stratton at 2.
124 "Public Hearing to Consider Proposed Amendments to the Small Off-Road Engine Regulations: Transition to
Zero Emissions," October 12, 2021, at 11-13.
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fulfilled by spark-ignition SORE products because such products already exist and are being
sold, often in large numbers. And while product availability is still catching up for some of the
specialized products, the technology for such products also exists and is present in the market.
In the Final Statement of Reasons and in their May 2024 Supplemental Comment Letter,
Exhibit B, CARB stated that CAA section 209(e)(2)(A) does not impose a two-year lead time
requirement on California's adoption of emission standards and other emission-related
requirements for new off-road engines. Nevertheless, CARB notes the regulation provides
sufficient lead time for generators and pressure washers, as required by CAA section 202(a). The
technological feasibility of the SORE regulations does not depend on manufacturers having
already produced ZEE versions of every type of equipment that use spark-ignition SORE. Just as
SORE manufacturers install similar engines in many equipment types, manufacturers may install
similar zero-emission power units that use the same batteries in many equipment types without
the need to develop new technology. Engines certified in 2021 for sale or lease for use or
operation in California already exhibit emissions below the model year (MY) 2024-2027
emission standards. These engines demonstrate the feasibility of the more stringent emission
standards. As noted above, EPA's longstanding approach is to calculate lead time from the date
the rule is adopted by CARB, not the date the standards take effect.125 The 2021 SORE
amendments were adopted by CARB December 9, 2021, but the standards did not go into effect
until MY 2024, allowing a minimum of two full years for compliance. CARB additionally
offered manufacturers the opportunity to utilize its limited-term Executive Order (EO)
certification option, which allowed them to certify MY 2024 engines to MY 2023 standards.
125 88 FR 20711, fn. 208 (April 6, 2023) ("EPA evaluates the lead time associated with CARB's regulation by
examining the date of CARB's adoption of the regulation and when manufacturers are required to meet the
regulation.").
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Unlike regular EOs, these EOs terminate upon published authorization by EPA of the regulation,
but they provide an additional buffer time as needed. Finally, generators and pressure washers do
not have zero-emission standards until MY 2028, allowing more than six years for manufacturers
to comply with zero-emission standards. Manufacturers have already certified pressure washers
and generators to the MY 2024 requirements, showing they are capable of meeting the more
stringent emission standards. As of March 12, 2024, 48 applications for generators and pressure
washers have been certified.126
Further, CARB states that the 2021 Amendments do not require manufacturers to convert
existing models of SORE equipment to ZEE. CARB's technological feasibility determination
was based in part on the existence and cost of ZEE for many types of small off-road equipment.
Manufacturers may choose to convert existing models from spark-ignition SORE to ZEE or may
introduce new models of ZEE. CARB asserts that manufacturers' decisions to convert models to
ZEE therefore does not impact the technological feasibility of the 2021 Amendments.127
CARB also provides a list of available ZEE along with power output and expected
number of batteries required to fulfill a full day of typical use.128 While the list of available ZEE
does not include a ZEE product to match every currently available SORE product, CARB has
noted that where ZEE is not available users of spark-ignition SORE equipment can continue to
use that spark-ignition SORE equipment until such time as a ZEE equivalent is available for
purchase. EPA notes that the list of ZEE designed and marketed to fulfill a specific purpose
continues to expand as manufacturers continue to apply existing technology to fill specific
126FSOR at page 375-378. CARB Supplemental Comment Letter, Exhibit B at 1-3.
127 CARB Supplemental Comment Letter, Exhibit B at 1-3.
128 CARB Supplemental Comment Letter, Exhibit A.
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market needs. Indeed, the number and range of ZEE products has already expanded significantly
in the time since CARB first proposed the 2021 Amendments.129
EPA's assessment of lead time is based on factors such as the current state of emission
control technology, how much time may be needed to adapt existing technologies into product
lines, the general amount of time between the adoption of the state regulation and when the
regulated party needs to comply in order to introduce its product(s), and the products currently in
the marketplace, as well as whether the opponents of the authorization have met their burden of
proof to demonstrate that inadequate lead time was provided by CARB's regulations. EPA notes
that CARB adopted the 2021 Amendments in December 2021 and requested authorization from
EPA in December 2022. Commenter claims of having only one year of lead time are based on the
premise that lead time should be measured from the date of approval by the State Office of
Administrative Law (OAL). However, EPA has for decades measured lead time from the date of
adoption by CARB as it is CARB, not OAL, that makes policy decisions and determines the
substance of rules. Regarding this comment, we note again that ZEE has been replacing spark-
ignition SORE in the marketplace, most especially in the residential marketplace, for many
years. Examining the presence and evolution of SORE products in the marketplace demonstrates
that development and application of requisite technology began long before CARB's adoption of
the 2021 Amendments, and undermines commenters' claim of insufficient lead time to develop
and apply such technologies. Some makers of equipment may have continued to focus on spark-
ignition SORE, possibly as a business decision directed primarily at markets outside of
California. EPA observes that many of the makers of ZEE, in particular those that have been
making ZEE for five to 10 years, are not the traditional makers of SORE. For example,
129 CARB Supplemental Comment Letter, in particular Exhibit A and CARB's 2023 Implementation Review:
2021 Amendments to the Small Off-Road Engine Regulations, August 30, 2024.
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Greenworks and EGo have been making battery powered lawnmowers for years and companies
like EcoFlow, Jackery, and Goal Zero are prominent in the portable battery power storage
market. In contrast, Honda, a traditional leader in SORE lawnmowers, has announced its first
battery powered lawnmowers for launch in 2025.130 Briggs & Stratton, another longtime leader
in SORE lawnmower engines, has a website showcasing its battery powered lawnmowers,131 but
also has a website directed at helping purchasers choose the right lawnmower.132 Similarly,
Honda, a longtime leader in SORE portable generators, does not appear to offer a portable
battery powered storage unit, and while Briggs & Stratton offers battery storage systems for
home backup, they are not portable. While different manufacturers may have different strategies
for ZEE and spark-ignition SORE sales, EPA evaluates lead time based on the availability of
requisite technology overall, not whether every single manufacturer can continue to sell all its
existing products at the same volumes. With regard to the SORE Amendments, the record
demonstrates that requisite technology exists and is being applied. The record also shows that
manufacturers are expanding capacity, and that CARB is reasonable in its projection that market
demand will be met as SORE products are replaced. This is an area in which the statutory
130 See https://powereanipment.honda.com/lawn-mowers/batterv-powered-lawn-mowers. accessed December 2,
2024, Honda_ElectricMowersIn2025.pdf contained in Docket ID EPA-HQ-OAR-2023-0151. Note Honda's
promotional claim that, "In Honda internal field testing, the torque/power of Honda's battery-powered HRC-BE
model outperformed not only the competition's gas- and battery powered models, but also Honda's gas-powered
HRC lawn mower." Honda's HRC is Honda's commercial line of push lawnmowers.
131 See https://www.briggsandstratton.com/na/en ns/in.novations/pnsh-mowers/821i-
series.htnit#:~:text=WeVe%20got%20what%20voii.effieient%20and%20enjovabte%20mowing%20experienee.
accessed December 2, 2024, BriggsStratton_82LiSeriesLawnmower.pdf contained in Docket ID EPA-HQ-OAR-
2023-0151.
132 See https://www.briggsandstratton.com/na/en ns/bnving-giiides/lawn-mowers/choosing-a-lawn-
mower.ht!iit#piish~lawn~mowers. accessed December 2, 2024, under the heading "Gas vs. Battery-Powered Push
Mowers," BriggsStratton_ChoosingALawnmower.pdf contained in Docket ID EPA-HQ-OAR-2023-0151.
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scheme contemplates that EPA give an appropriate measure of deference to CARB's policy
choices. 133
EPA acknowledges that while some manufacturers are currently marketing a range of
ZEE products, others will need additional time to bring products to market should they choose to
do so. As noted, EPA's longstanding approach is to measure lead time from when CARB adopts a
given regulation which, in this case, was December 9, 2021.134 Therefore, more than two years of
lead time have been provided. CARB has issued Executive Orders allowing for the sale of SORE
meeting the prior standards until such time as EPA issues an authorization. We conclude that
CARB has provided sufficient lead time to manufacturers that chose to develop and apply
requisite technology.
We acknowledge that some manufacturers and their trade groups claim that additional
time is needed to redesign existing gasoline products into ZEE products. CARB, however,
asserts that the lead time it provided is sufficient. Even were EPA to credit the allegations of
these commenters (e.g., that 6-8 years of lead time is necessary for some firms to convert certain
gasoline-fueled products to ZEE products), we would not be able to deny the waiver for lack of
lead time. The industry as a whole is already producing numerous ZEE models across a diverse
range of residential and commercial applications, and ZEE have existed for years. The fact that
certain companies have chosen to focus their efforts on spark-ignition SORE does not mean there
133 EPA recognizes that CARB may make different policy choices based on the air quality and other conditions
within the State, and that EPA does not play the role of second-guessing such choices. It also follows that, in
response to the SORE regulations, a manufacturer will determine which product offerings to make available in the
California marketplace during the transition to and for showing compliance with the new standards. These market
choices could include offering for sale a limited set of products. Given the statutory scheme, the EPA Administrator
is to give very substantial deference to California's judgments. See also International Harvester v. Ruckelshaus, 478
F 2d. 615, 640 (D.C. Cir. 1979) ("We are inclined to agree with the Administrator that as long as feasible technology
permits the demand for new passenger automobiles to be generally met, the basic requirements of the Act would be
satisfied, even though this might occasion fewer models and a more limited choice of engine types. The driving
preferences of hot rodders are not to outweigh the goal of a clean environment.").
134 CARB Supplemental Comment Letter, Exhibit B at 11.
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is insufficient lead time for California's standards; it simply means those companies have made
the business decision to focus their efforts on gasoline-fueled products, which continue to have a
market in other states. Put differently, where the technology is available and already in
commercial production, the fact that certain companies remain technological laggards does not
compel EPA to deny the State's authorization request. Nothing in the third statutory criteria limits
the State to anti-backsliding standards that can be achieved by every single firm; rather, the
authorization provision unambiguously allows the State to adopt technology-forcing standards
and to require all manufacturers selling into its market to meet the standards of the technological
leaders. Moreover, this is not a case where the State's standards are achievable only by one or
two firms with the vast majority of the market precluded from entry; rather, the record
demonstrates that a broad swath of firms representing a significant portion of industry are
already producing compliant ZEE. By contrast, were EPA to accept the commenters' reading,
that would invert the purpose of the authorization provision, through which Congress intended to
give California the broadest discretion in addressing its air pollution challenges and in serving as
a laboratory of experimentation for the nation.
As noted, EPA evaluates the lead time associated with CARB's regulation by examining
the date of C ARB's adoption of the regulation and when manufacturers are required to meet the
regulation. EPA is guided both by the amount of lead time provided and by the principles set
forth in cases such as International Harvester and NRDC 135 The lead time here is between the
135 Natural Resources Defense Council v. EPA (NRDC), 655 F.2d 318, 331 (D.C. Cir. 1981). ("Given this time frame
[a 1980 decision on 1985 model year standards]; we feel that there is substantial room for deference to the EPA's
expertise in projecting the likely course of development. The essential question in this case is the pace of that
development, and absent a revolution in the study of industry, defense of such a projection can never possess the
inescapable logic of a mathematical deduction. We think that the EPA will have demonstrated the reasonableness of
its basis for projection if it answers any theoretical objections to the [projected control technology], identifies the
major steps necessary in refinement of the technology, and offers plausible reasons for believing that each of those
steps can be completed in the time available.").
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CARB Board's adoption of the 2021 SORE Amendments and the compliance implementation for
the 2024 model year (recognizing that manufacturers may choose to certify earlier in 2023 for
the 2024 model year). EPA finds that no evidence in the record that industry as a whole, as
measured by product in the marketplace, are unable to comply with CARB's requirements that
commence with the 2024 model year and with the 2028 model year. That is, while some
manufacturers may have chosen to focus their business on spark-ignition SORE as opposed to
ZEE, many other companies are producing ZEE, such that the industry as a whole is already
producing numerous ZEE models across diverse residential and commercial applications. With
respect to the 2028 model year requirements, CARB has provided a reasonable explanation for
how such standards can be met. Therefore, based on the record before EPA, the authorization
cannot be denied based on a lack of adequate lead time under the consistency with CAA section
202(a) criterion,
iii. Costs
Similar to the comments received on feasibility and lead time, many comments received
that purport to address the cost of compliance with the 2021 SORE Amendments regulations are
beyond the scope of EPA's evaluation under the third authorization prong regarding consistency
with CAA section 202(a). EPA has historically interpreted section 202(a) to allow consideration
of only costs of compliance with the standards, and this continues to be the best reading of the
statute. Since the SORE regulations directly regulate manufacturers of small nonroad equipment
and engines, the relevant costs under the third prong are the costs of compliance for such
manufacturers, i.e., costs that pertain to the manufacturers' development and application of
requisite technology to comply with the emission standards. In deciding whether to grant an
authorization, EPA generally does not consider costs borne by other, unregulated parties such as
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consumer costs (including purchase cost, maintenance and repair costs, fueling costs, and other
costs of ownership), cost of charging infrastructure, or other costs.136 Our position on comments
addressing these consumer and other costs is the same as for the related comments on feasibility
and lead time: while these comments are beyond the scope of factors EPA is authorized to
consider under the third prong, we have nonetheless evaluated them and find them factually
unpersuasive.
As discussed above, EPA has considered the factual record and found it to be supportive
of a finding that the SORE Amendments are technologically feasible within the lead time
provided. Giving appropriate consideration to cost, EPA finds the record to support a conclusion
that costs are not excessive. EPA further finds that commenters have not carried their burden to
undermine this conclusion. EPA notes that its duty under this section of the CAA simply to
consider the costs associated with CARB's regulations, even if such costs are not insignificant.
EPA believes that C ARB has sufficiently considered costs and EPA has properly reviewed
CARB's rule and its consideration of costs were reasonable and were reasonably explained.137
CARB's authorization request presents a thorough examination of costs. CARB's
analysis does not cite direct costs to manufacturers. Rather, CARB bases its cost analysis on
retail prices for marketed products. While EPA received many comments regarding costs, no
commenter presented actual data on manufacturer costs that were significantly different from the
136 See, e.g.,MEMA /, 627 F.2d, at 1117-18 ("Section 209's reference to "public health and welfare" refers only to
the impacts associated with air pollution, as opposed to the social costs of pollution control."); id. at 1118
("Similarly, there is no indication that Congress intended section 202's "cost of compliance" consideration to
embody "social costs" of the type petitioners advance.").
137 See ATA v EPA, 600 F.3d 624, 629 (D.C. Cir. 2010) ("In approving the California TRU rule. EPA adequately
considered those costs. EPA explained that businesses can comply w ith the TRU rule for about $2,000 to $5,000 per
unit. J. A. 584. EPA also determined that the phased implementation of the rule would help minimize its cost.
Although the costs of the TRU rule arc not insignificant. EPA's duty under this portion of the statute is simply to
consider those costs. It did so here. EPA's conclusion — namely that California's rule was consistent with §
7521(a)(2) — was reasonable and reasonably explained.").
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retail costs that CARB relied on, or otherwise demonstrated why considering manufacturing
costs in lieu of retail costs would result in such greater costs as to render CARB's consideration
of costs unreasonable. Given this and on the assumption that CARB used the best information
available to it, EPA believes this is a reasonable alternative method for CARB to estimate costs
to the regulated entities, i.e., the manufacturers.
As for costs of the 2021 Amendments, CARB notes that it had appropriately considered
compliance costs, acknowledging that incremental costs of new commercial grade ZEE could
range from a savings of $165 for a snow blower to an increase of $9,828 for a riding lawn mower
as compared to spark-ignition SORE equipment. For residential equipment, CARB estimated
that new ZEE could range from a savings of $43 for a pressure washer to an increase of $1,309
for a ZEE generator as compared to spark-ignition SORE equipment.138
One commenter stated that CARB simply assumed that since ZEE technology is already
on the market in some cases, there will be "minimal" transition costs for manufacturers in all
other cases. The commenter claimed that in making that blanket assumption, however, CARB
completely ignored the cost and time needed to transition current gasoline-fueled product to
ZEE, even when current battery technology exists. In that regard, the commenter alleged that the
actual timeline that manufacturers need to convert non-handheld products to ZEE is more than
two years per product-line. Thus, according to the commenter, CARB has no real-world data, and
no actual technical testing or data quantification, to support the mandated near-immediate and
wholesale transition to ZEE.139
Commenters also argued that CARB's assessment of technological feasibility with
respect to the 2021 Amendments had underestimated the total cost of ownership (TCO) of ZEE
138 SORE Authorization Support Document at 35-36.
139 EMAat 3.
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by underestimating upfront costs, which could be up to twice CARB's estimate, and
underestimating operational costs, which could be up to three times CARB's estimate.140
One commenter argued that it is important to compare the run times of generators to
establish similar functionality and costs. The commenter compared a spark-ignited and ZEE
generator and stated that the spark-ignited generator can last longer on a single tank of fuel than
the ZEE generator can last on an initial charge. Further, the commenter argued that the ZEE
generator is dependent on additional costly battery storage to maximize power availability and
the spark-ignited generator can be easily refueled by gasoline or propane. With regard to costs,
the commenter stated that the ZEE generator requires costly accessories such as solar panels, to
serve as a recharging method during emergencies.141
A commenter expressed concerns regarding the prospect of future reductions in costs,
noting that in 2010 the price of storing a kilowatt-hour of electricity was $1,000. In 2021, it was
projected to be $131 and in 2030 it is projected to be $70. Thus, the cost to store a kilowatt-hour
of electricity is anticipated to drop by $930 between 2010 and 2030. The commenter notes that
the cost to store a kilowatt-hour of electricity had already dropped $869 or 93% of the total
expected drop in price that CARB had been projecting. Therefore, while there may be some
incremental cost reductions to store electricity over the next nine years, the overwhelming
majority of cost reductions has already occurred.142 Another commenter stated that since 2021,
rather than decline, they have seen battery cell costs go up more than 50%.143
140Id. at 13.
141 PGMAat 11.
142 PGMAat 13-14.
143 Briggs & Stratton at 7.
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Another commenter144 also expressed concerns regarding the cost impacts of battery
storage required for extended use. This commenter asserted that commercial-grade handheld
electronic leaf blowers have significant cost implications for the landscape industry. The
commenter stated that one popular manufacturer's electric leaf blower retails for approximately
$350 - $400, similar to the same manufacturer's gas-powered unit. However, according to the
commenter, to use this electric leaf blower for an entire workday requires the purchase of
additional batteries and chargers, thus driving the up-front cost to exceed $3,000.145
EPA also received comment regarding the costs of larger SORE equipment. A commenter
noted that commercial gas-powered riding mowers range from $8,000-$ll,000 while the few
commercial riding ZEE mowers available with 4-5 hour runtime range from $16,000 to $21,000
or more. The commenter stated that these are significant up-front investments for landscape
professionals, most of whom are sole-proprietor (single-employee) businesses.146
Additionally, this commenter claimed that batteries remain a significant barrier for the
transition to occur based on cost, amount needed, how they are charged, and how they are
disposed. Run time for the batteries varies by equipment. For a ride-on mower, the commenter
states that the run time for a battery is somewhere between 4 and 6 hours, while for handheld
equipment that run time is somewhere between 10 and 30 minutes per battery. The commenter
argued that switching batteries frequently reduces productivity and efficiency for the landscape
crew and that batteries typically need to be replaced every 300-500 charge cycles (at optimal
temperature) which would mean that they would likely need to be replaced at least twice and
maybe even three times during the product's life cycle.147
144 NALP at 3-4.
145 Id.
146 Id.
147 Id.
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Other commenters argued that the requirements will be detrimental to businesses that sell
to and maintain SORE for end users.148
Similar to EPA's approach for evaluating whether emission technology exists or whether
lead time is sufficient to develop such technology, EPA examines the record, including CARB's
state rulemaking record, when evaluating whether the costs of CARB's regulations (in terms of
the costs of the emission control technology) as applied to manufacturers (as the regulated party
within CARB's SORE regulations) is excessive.149 Within the ISOR, CARB pointed to a survey
of residential SORE purchasers which found that cost was the top response when deciding
between gasoline-powered equipment and ZEE, followed by power and time to
refuel/recharge.150 That same survey also included professional respondents. CARB notes that
for landscapers, the top three considerations when making purchases were performance, run-time
and cost. CARB acknowledged that the average purchase price of professional ZEE, including
sufficient batteries for an eight-hour workday, is higher than for SORE stating that the upfront
cost is a barrier to transforming the population of lawn and garden equipment in the professional
market to ZEE. CARB noted that ZEE often have a lower total cost of ownership over the
equipment lifetime and that decreasing battery prices may result in lower prices for ZEE.151
148 Jensen & Pilegard; Joseph's Lawnmowers; Miller Farms Nursery.
149 EPA further explains its analysis of cost considerations below. It is noted that CAA section 202's cost of
compliance relates to the timing of particular emission control regulation. See, e.g., MEMA /, 627 F.2d at 1118
('"Section 202's "cost of compliance" concern, juxtaposed as it is w ith the requirement that the Administrator provide
the requisite lead lime to allow technological developments, refers to the economic costs of motor vehicle emission
standards and accompanying enforcement procedures. See S. Rep. No. 192. 89th Cong.. 1st Sess. 5-8 (1965): H.R.
Rep. No. 728, 90th Cong., 1st Sess. 23 (1967). U.S. Code Cong. Admin. News 1967. p. 1938. It relates to
the timing of a particular emission control regulation rather than to its social implications. Congress w anted to avoid
undue economic disruption in the automotive manufacturing industry and also sought to avoid doubling or tripling
the cost of motor vehicles to purchasers. It therefore requires that emission regulations be technologically feasible
within economic parameters. Therein lies the intent of the "cost of compliance" requirement.")
150 "Public Hearing to Consider Proposed Amendments to the Small Off-Road Engine Regulations: Transition to
Zero Emissions," October 12, 2021, at 22.
151 Id.
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CARB's ISOR provides several comparisons of the upfront cost of spark-ignition SORE
versus comparable ZEE. Further, CARB conducted an analysis of costs likely to be incurred by
both residential and professional equipment users in both the baseline, or no-action, scenario and
a scenario with the 2021 Amendments in place.152 As noted, CARB based this analysis not on
internal estimates of costs to manufacturers and instead used actual prices paid by purchasers.
CARB's estimated prices for residential and professional equipment are shown in Table 1 and
Table 2, respectively.
Table 1 Current upfront price of residential-grade spark-ignition SORE equipment and
ZEE and the incremental cost to opt for ZEE over spark-ignition SORE *
Type of Equipment
Spark-ignition SORE
equipment price
ZEE price
Incremental cost over
Baseline Scenario
Chainsaw
$156.24
$594.58
$438.34
Generator Set
$861.49
$2,169.95
$1,308.46
Lawn Mower
$303.79
$432.92
$129.13
Leaf Blower/Vacuum
$161.67
$324.42
$162.75
Pressure Washer
$400.37
$356.97
-$43.40
Pump < 2 hp
$243.15
$268.00
$24.85
Riding Mower
$2,633.60
$3,253.92
$620.32
Snow Blower
$432.72
$433.99
$1.27
Trimmer/Edger/Brush Cutter
$165.03
$215.92
$50.89
'Table C-3 of CARB's SRIA Appendix I at page 40; 2019 dollars including sales tax.
Table 2 Current upfront price of professional-grade spark-ignition SORE equipment and
ZEE and the incremental cost to opt for ZEE over spark-ignition SORE *
Type of Equipment
Spark-ignition SORE
equipment price
ZEE price
Incremental cost over
Baseline Scenario
Chainsaw
$390.55
$694.37
$303.82
Generator Set
$5,304.57
$6,943.89
$1,639.32
Lawn Mower
$1,409.42
$1,030.71
-$378.71
Leaf Blower/Vacuum
$477.39
$1,746.77
$1,269.38
Pressure Washer
$1,170.82
$3,036.92/$9,980.81 "
$l,866.10/$8,809.99 "
Pump < 2 hp
$454.62
$594.58
$139.96
Riding Mower
$11,337.17
$21,156.42
$9,819.25
Snow Blower
$1,626.42
$1,461.50
-$164.92
Trimmer/Edger/Brush Cutter
$368.85
$867.83
$498.98
'Table C-4 of CARB's SRIA Appendix I at page 40; 2019 dollars including sales tax.
"Corded/Cordless versions.
152 "Amendments to the Small Off-Road Engine Exhaust and Evaporative Emission Regulations: Standardized
Regulatory Impact Assessment (SRIA)," Appendix I, Section C, September 20, 2021.
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The ISOR analysis stated that, for residential-grade equipment, the median price of the
top ten most popular models of a given type of equipment was used as an estimate of the cost.
For residential ZEE, the analysis assumed that all new ZEE purchased would be cordless rather
than corded. Residents who already own corded equipment were assumed to continue to use
corded equipment. Residential-grade ZEE frequently come packaged with enough batteries for
average use. The analysis assumes equipment prices (in 2019 dollars) will remain constant over
the regulatory horizon, except as described for ZEE battery prices.
The ISOR analysis also used the median price of popular models as an estimate of the
cost of professional-grade equipment. This equipment is owned by landscapers, non-landscaping
businesses, and government entities, collectively referred to as professional users. Professional-
grade equipment costs include enough batteries for ZEE to operate for the relevant portion of a
full eight-hour workday. All professional-grade ZEE were assumed to be cordless except for
some pressure washers. Some professional users were assumed to purchase residential-grade
equipment based on the typical amount of annual use. Generators that are currently available and
that meet the MY 2024 emission standards in the proposed amendments were used to estimate
the price of generators for MYs 2024 through 2027.
The ISOR analysis presented 2021 and 2030 calendar year ZEE prices as shown in Table
3 and Table 4 for residential and professional ZEE, respectively. CARB noted that the estimated
ZEE price decreases between 2021 and 2030 range from 2.2 percent for the professional-grade
chainsaw, to 7.1 percent for the residential-grade pressure washer based on the decreasing costs
of lithium-ion batteries. The residential riding mower used a lead-acid battery, so no price
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reduction was applied. Similarly, no price reduction was applied to the professional corded
pressure washer, which has no battery.
Table 3 Current and projected prices of residential-grade ZEE based on decreasing battery
cost calculations (including sales tax) *
Type of Equipment
2021 ZEE price
2030 ZEE price
Chainsaw
$594.58
$567.64
Generator Set
$2,169.95
$2,069.61
Lawn Mower
$432.92
$405.12
Leaf Blower/Vacuum
$324.42
$305.88
Pressure Washer
$356.97
$331.55
Pump < 2 hp
$268.00
$256.08
Riding Mower
$3,253.92
$3,253.92
Snow Blower
$433.99
$418.10
Trimmer/Edger/Brush Cutter
$215.92
$209.30
'Table C-5 of CARB's SRIA Appendix I at page 40; 2019 dollars including sales tax.
Table 4 Current and projected prices of professional-grade ZEE based on decreasing
battery cost calculations (including sales tax) *
Type of Equipment
2021 ZEE price
2030 ZEE price
Chainsaw
$694.37
$679.34
Generator Set
$6,943.89
$6,542.55
Lawn Mower
$1,030.71
$984.96
Leaf Blower/Vacuum
$1,746.77
$1,670.79
Pressure Washer
$3,036.92/$9,980.81"
$3,036.92/$9,579.46 "
Pump < 2 hp
$594.58
$579.09
Riding Mower
$21,156.42
$20,266.89
Snow Blower
$1,461.50
$1,366.19
Trimmer/Edger/Brush Cutter
$867.83
$843.05
'Table C-6 of CARB's SRIA Appendix I at page 40; 2019 dollars including sales tax.
"Corded/Cordless versions.
Regarding snow blowers, CARB noted that the Proposed Amendments would not require
snow blowers to transition to ZEE since they are not required to certify to the HC+NOx
standards of 0.00 g/kWh and instead are required to certify only to the CO standards which were
not changed. However, CARB assumed that snow blowers would transition to ZEE given their
similar costs and the fact that owners of other forms of ZEE would realize that the batteries
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would work in a new ZEE snow blower thereby saving some cost on their next snow blower
purchase.153
Regarding generators, CARB estimated that only 14 percent of residential generators and
11 percent of non-landscaping business-owned generators are ZEE. These percentages are much
lower than for other forms of equipment. CARB noted that zero-emission generators are
relatively newer to the market and would need more time to gain market share. CARB noted that
this is one of the reasons that generators are provided more time prior to the full transition to
ZEE. CARB also projected that available credit banks would be used to allow for 6.3 percent of
generators to remain at current (pre-Proposed Amendment) emission levels with the remainder
meeting the 2024-2027 proposed standards.
Regarding pressure washers, CARB estimated that 67 percent of residential pressure
washers were already ZEE but that 98 percent of those were corded. For non-landscaping
professional pressure washers, the ZEE percentage was estimated at 45 percent with 93 percent
being corded. To be conservative, CARB used the cordless ZEE as the representative cost for
residential pressure washers given the trajectory in the market. In the professional market, CARB
assumed a mix of cordless and corded pressure washers when calculating costs due to the high
cost of professional cordless pressure washers matched with their relatively low use times
(CARB estimated that 72 percent of professional pressure washers are used less than once per
week). Given such infrequent use, CARB acknowledged that a typical professional user would
not break even within the lifetime of the equipment making corded pressure washers more
attractive.154
153 "Amendments to the Small Off-Road Engine Exhaust and Evaporative Emission Regulations: Standardized
Regulatory Impact Assessment (SRIA)," Appendix I, Section C, September 20, 2021, at 43.
154 Id. at 44.
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Regarding the 2016 evaporative emission amendments, CARB estimated the per unit
costs at $2.72.155
Regarding concerns expressed by some landscapers regarding electrical service upgrades
needed to accommodate battery charging, CARB has stated that the 2021 Amendments do not
require anyone to make upgrades in electrical service, and much of the ZEE is charged through
15- and 20-amp circuits that are readily available.156
CARB also noted that while the acquisition costs for ZEE may often be higher than for
equipment in the small offroad category powered by combustion engines, the overall projected
costs for ZEE will often be lower because of the lower operational costs. Based on the prices and
analyses used in the SRIA (Appendix I of the ISOR), professional users (non-landscaping
businesses, landscapers, and government entities) were expected to experience cost-savings from
purchasing ZEE in most SORE categories within five years.157
EPA finds that CARB's responses are reasonable, and that CARB has reasonably
considered the costs of development and application of requisite technology. Commenters have
not shown specifically how CARB's extensive consideration of costs was inappropriate or
unreasonable. In its authorization request as well as its state rulemaking record, CARB included
reasonable consideration of the costs for regulated manufacturers, as well as non-regulated
entities.
As explained above, EPA has traditionally applied a consistency test under CAA section
202(a) that calls for the Administrator to first review whether adequate technology already exists.
If technology is not presently available, EPA will consider whether California has provided
155 SORE Authorization Support Document, at 25.
156 CARB Supplemental Comment Letter at 12.
157 Id. at 7.
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adequate lead time for the development and application of the necessary technology prior to the
date of the effective date (or implementation date of the model year effected by the standards) for
which a waiver or authorization is sought.158 After a review of the record, information, and
comments received in this proceeding, EPA has determined that the opponents of the
authorization request for CARB's 2016 and 2021 Amendments have not demonstrated that these
amendments are inconsistent with CAA section 202(a). As noted above, CARB's authorization
request indicated that control technology either presently exists or is in use. CARB has identified
a number of existing technologies that can be used to comply with the amendments, has
demonstrated a thorough consideration of costs, and has announced plans to annually review
implementation.159
Consistency with CAA section 202(a) requires that EPA give consideration to the costs
associated with CARB's regulations. For the reasons set forth below, and based on the record
before EPA, I cannot find that the incremental costs associated with the manufacture of products
meeting the 2021 Amendments is excessive.
Importantly, most of the comments we received regarding costs are beyond the scope of
EPA's authorization decision. EPA traditionally has followed the best reading of the statute by
only considering costs to the regulated party, in this case, the manufacturers of SORE, not the
158 88 FR 20688, 20705 and 20709 (fn.195).
159 The governing board of CARB has directed CARB staff to review annually the status of the implementation of
the proposed amendments and to conduct a technological review in the 2025 to 2026 timeframe to assess the
progress towards the MY 2028 zero-emission standards for portable generators and any other engine or equipment
category that may be newly subject to the MY 2028 zero-emission standards (see
https://ww2.arb.ca.gov/sites/defauit/files/barcu/board/res/2021/res21-28.pdf "Be it further resolved that the Board
directs CARB staff to review annually the status of the implementation of the proposed amendments and to conduct
a technological review in the 2025 to 2026 timeframe to assess the progress towards the MY 2028 zero-emission
standards for portable generators and any other engine or equipment category that may be newly subject to the MY
2028 zero-emission standards.). In fact, CARB staff has already conducted a review and published their findings in
August 2024 (see https://ww2.arb.ca.gov/sites/defauit/files/barcu/regact/2021/sore21/2023implreview.pdf). EPA
intends to follow closely these reviews and any needed follow up by the CARB Board.
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users of SORE. To the extent it is relevant, EPA has evaluated CARB's consideration of cost-
related concerns raised by users of SORE and concludes that CARB has reasonably considered
these costs.
The cost concerns raised by certain manufacturers centered on what they characterized as
an inadequate lead time and the costs that would result from making the transition in such a short
timeframe. In response to these concerns, EPA notes that battery powered equipment has been in
the marketplace for more than 10 years. As CARB noted in its Supplemental Comment Letter,
many products meeting the 2021 Amendments are now in the marketplace. EPA cannot deny a
waiver for a claimed lack of lead time to develop and implement requisite technology in a
situation such as this where the technology has been available for an extended period of time,
and where there is ample evidence in the record that such technology is available in the market
and that basic market demand is being met.
Some of the price differences shown in Tables 1 and 2 are large either in terms of
absolute scale (actual dollars) or in terms of multiple increases (e.g., two or three times greater
for ZEE relative to spark-ignition SORE). A limited set of products exhibit both characteristics.
For example, the commercial ZEE riding lawn mower is nearly twice the price and costs $9,800
more than the spark-ignition SORE riding mower. Similarly, the commercial battery powered
pressure washer is roughly eight times the price and costs roughly $8,800 more than the spark-
ignition SORE pressure washer. Importantly, a corded electric pressure washer is much less
expensive than the battery powered version. The ZEE residential generator set is more than twice
the price and costs roughly $1,300 more than the spark-ignition SORE generator set.
EPA is guided by the principles set forth in MEMAI in terms of evaluating whether the
costs for manufacturers is consistent with the requirements in CAA section 202(a) as applied to
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California. Therefore, in evaluating whether the incremental costs to comply with the 2021
Amendments are excessive, EPA examines the record before it. In this case, manufacturers'
comments have primarily focused on the need for additional lead time (which EPA has addressed
above), as opposed to submitted evidence to the record that reflects the costs for compliance with
the regulations is excessive or results in an undue burden. As noted previously, the evidence in
the record demonstrates the current ability to produce compliant product and introduce it into the
marketplace and there is no evidence that market demand is not being met. EPA also notes that
while there are few examples where it may appear that there has been a doubling or tripling of
the retail price of SORE equipment,160 the commenters have not submitted actual data regarding
the cost to manufacturers or other information to the record to explain how such costs are
excessive or may create an undue burden on the regulated manufacturers, or otherwise
demonstrate how the market demand for such products will not be met. Therefore, based on the
record before us, the burden of proof by the opponents of the waiver has not been met and EPA
cannot deny the authorization request based on a finding that the SORE Amendments result in an
excessive cost for the regulated party or that such costs are not consistent with section 202(a).
As noted, in evaluating whether costs have been adequately considered, EPA is limited to
consideration of costs to the regulated entity, which in the case of the SORE rule is the
manufacturers. However, in the case of this authorization request, the extent to which ZEE is
present in the market and being taken up by users can serve as circumstantial evidence that
granting the authorization will not cause "undue economic disruption."161 The record shows that
160 We note that while MEMAI mentioned a "doubling or tripling" of purchase price as a concern (627 F.2d, at
1118), this was in reference to the consumer costs of motor vehicles. The court mMEMA I did not imply, and EPA
believes there is no reason to infer either from that court decision or from the statute or legislative history, that this
should be a presumptive standard applicable to nonroad equipment, much of which retails at a fraction of the cost of
a motor vehicle. See https://www.kbb.com/car-advice/when-will-car-prices-drop/, accessed on December 5, 2024
(noting that the average transaction price of a light-duty vehicle in October 2024 of approximately $48,600).
161 MEMA I, 627 F.2d, at 1118.
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ZEE often costs more at initial retail prices than similar spark-ignition SORE and, in the case of
commercial end users, the operating costs associated with the necessary batteries may be
significant. However, in the residential SORE applications, it appears that ZEE is becoming the
industry norm with more ZEE offerings outnumbering spark-ignition SORE at typical big-box
stores.162 There is no evidence in the record to refute that residential end users are finding that
ZEE meets their needs and provides benefits to them that make potential increased purchase
costs worthwhile. Those benefits may include lower fuel costs, lower repair and maintenance
costs, and overall improved ease of use (no pull starters, no priming, etc.).
With regard to commercial users, EPA finds that CARB has presented reasonable
evidence that such costs for end users is not excessive. Commercial users, especially landscaping
businesses, presumably purchase not just one lawn mower but several and not just one extra
battery but several. Therefore, their upfront costs are potentially considerably higher than those
of a residential user. However, comments from commercial users did not provide actual data
demonstrating that costs would be excessive.
Commercial use presents cost considerations different than the cost considerations that
pertain to manufacturers. For example, commercial users will pass costs on to customers in
relation to the equipment run time needed to complete a task. Commercial users will also enjoy
certain benefits from the transition to ZEE - lower "fuel" costs (i.e., the costs of recharging
batteries as opposed to purchasing gasoline), lower repair and maintenance, etc. - and such
benefits would presumably also be higher than for residential users. CARB considered these
TCO factors in its rule adoption process. As noted above, EPA, in its role adjudicating CAA
162 See fattps://www.towes.eom/searefa?searefaTerm=pnsfa+tawn+mower&sortMethod=sortBv highestRated.
accessed December 2, 2024, screenshot included in Docket EPA-HQ-OAR-2023-0151 as "Lowes Screenshot 2024-
12-02 155351.png".
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section 209(b) waiver requests and section 209(e) authorization requests, has historically not
considered costs other than costs to manufacturers. We continue to take the position that to do so
would be inconsistent with the statute. The cost of multiple batteries that commercial users state
is required for their business is not a cost to the manufacturer, but rather is an operating cost that,
if it were to be considered, would have to be considered together with operating cost savings
associated with ZEE. To the extent such operating costs are relevant, EPA notes that CARB
reasonably considered these costs.
EPA has examined the concerns expressed regarding power storage units, also known as
battery-powered portable generators. As mentioned, a power storage unit requires both a battery
and an inverter, both of which impose costs. EPA notes that there are numerous power storage, or
home power backup, units available from companies like EcoFlow and Jackery that are in the
residential space.163 This suggests that residential users are finding sufficient benefits associated
with these devices despite their higher purchase prices relative to gasoline powered portable
generators.
Commenters have tended to focus not only on purchase price differences between power
storage and spark-ignition SORE portable generators, but also their run times, arguing that the
spark-ignition SORE portable generator can run for longer periods by simply refilling its tank
with gasoline. As noted in the discussion of feasibility above, in the context of determining
consistency with CAA section 202(a), the test for whether there is adequate lead time for
development and application of requisite technology does not depend on whether technology
163 See https://www.wired.com/sTOnsored/storv/living~off~grid~dream~ecofiow~delta~pro~
ecosv stem/#text=v ou%20 need%20powe r~
.EcoFlow%2C%20one%20ofK)20the%20most%20snccessfiil%20and%20acclaimed%20prodncers%20ola%2()walk
%20in%20the%20park. accessed December 11, 2024, saved as "Wired_EcoFlowDELTAPro.pdf" in Docket ID
EPA-HQ-OAR-2023 -0151; and Imps ://www.cnet.com/home/energy-and-utilities/iackery-expk>rer-2000-phis-a-
iackerv-of-alt~trades/. accessed December 11, 2024, saved as "CNET_Jackery.pdf' in Docket ID EPA-HQ-OAR-
2023-0151.
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compliant with the State standard is functionally equivalent to higher-emitting equipment in
every way. Aside from this, EPA notes that power storage units present both advantages and
disadvantages relative to spark-ignition SORE generators. The assertion that a portable spark-
ignition SORE generator will have a longer run time is true only if a user has sufficient gasoline
at hand or a functioning gasoline station nearby. Power outages often cause gasoline stations to
cease operation due to the inability to pump fuel and/or the inability to process transactions. By
contrast, a battery power station could be "refilled" via solar panels should the user also have
panels on their property or otherwise have access to them nearby, the point being that neither
battery power storage nor spark-ignition SORE portable generators are perfect, and both have
positives and negatives when used as a backup emergency power source. Further, those end users
unwilling or unable to transition to battery power storage can continue to make use of spark-
ignition SORE portable generators via diligent maintenance and repair which should allow the
equipment to operate as emergency backup power for years to come.
Regarding the comment concerning the cost per kilowatt-hour for batteries and the
commenter's conclusion that the majority of incremental cost reductions to store electricity over
time have already occurred, EPA does not agree that these comments are accurately predicting
future trends in battery costs. However, importantly, EPA notes that CARB's analysis is not
predicated on large reductions in battery costs as made clear in Table 3 and Table 4 which show
very conservative equipment price reductions during the 2021 through 2030 years.
Regarding the comment that battery costs have increased since 2021, contrary to CARB's
projection that battery costs would decrease, we note that CARB conducted their analysis in
2019 dollars, presumably consistent with the timeframe of conducting the analysis. There has, of
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course, been considerable inflation relative to a 2019-dollar valuation due largely to the
pandemic. The comment does not appear to take inflation into account.
Regarding the comment that batteries can only endure 300 to 500 charge cycles prior to
being replaced, CARB noted in the FSOR that this claim was based on Lithium-Ion Polymer
batteries, a battery technology that differs greatly from the batteries used in ZEE.164 CARB stated
that commenters on its SORE proposal provided no evidence that batteries used in ZEE have
similar degradation to those in the claim, nor do they provide evidence that degradation of
batteries used in ZEE prevents ZEE from being technologically feasible.165 CARB also pointed
out that Stihl states that a battery will retain up to 80 percent of its original capacity, even after
1,200 charging cycles.166
Regarding the comment that CARB had underestimated upfront costs, EPA notes that
CARB used actual upfront retail prices in its estimates and was transparent in reporting the fact
that many pieces of ZEE have higher prices than the corresponding spark-ignition SORE. The
commenter did not provide any data regarding the cost to the regulated industry that would
counter CARB's analysis. As noted above, CARB staff have been directed by the CARB
governing board to review annually the status of the implementation of the proposed
amendments and to conduct a technological review in the 2025 to 2026 timeframe to assess the
progress towards the MY 2028 zero-emission standards for portable generators and any other
engine or equipment category that may be newly subject to the MY 2028 zero-emission
standards. EPA expects that CARB staff will conduct a thorough review and will act accordingly
depending on the findings of that review.
164 FSOR at 591.
165 Id.
166 Id.
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Based on the foregoing analysis, we find the costs of compliance by the manufacturers
with the SORE Amendments are not excessive. Such costs are well within the general boundaries
and considerations provided in MEMA / that the costs must reach a "very high level" before the
EPA can deny a waiver, or in this case an authorization request.167 For these reasons, based on
the record before the Agency, the opponents of the authorization based on costs have not met
their burden of proof to demonstrate that the costs associated with manufacturers meeting the
new requirement to be excessive. Further, while concerns regarding operating costs raised by
some commercial end users are not within the scope of factors EPA may consider in deciding
whether to grant an authorization, EPA notes that CARB has reasonably considered these costs
and had reasonably explained its conclusion that such operating costs will not be excessive.
Therefore, I cannot deny the authorization request based on considerations of cost,
d. Test Procedure Consistency
Regarding consistency of the 2016 Amendments with federal requirements, CARB states
in their Authorization Request that no issues exist regarding inconsistency between federal and
California evaporative emission test procedures that preclude manufacturers from meeting both
California and federal requirements with the same test engines. Instead, CARB specifically
enacted the 2016 Amendments, in part, to more closely align the SORE evaporative emission test
requirements with the corresponding federal requirements.168
Regarding consistency of the 2021 Amendments with federal requirements, CARB notes
in its authorization request that the 2021 Amendments raise no issues regarding the
incompatibility of California and federal test procedures. The elements of the 2021 Amendments
that amend the California SORE exhaust and evaporative emissions test procedures harmonize
167 MEMA I at 1118.
168 SORE Authorization Support Document at 26.
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California's certification test requirements with the corresponding federal certification test
requirements, and CARB is not aware of any instances in which a manufacturer is precluded
from conducting one set of tests to determine compliance with both California and federal
requirements.169
In the 2016 ISOR, CARB stated that the evaporative emissions regulations they adopted
in 2003 were the first to control evaporative emissions from SORE. CARB provides more
history and testing they have done leading to their 2016 Amendments.170
In the 2016 ISOR, CARB noted that the 2016 proposed amendments required that the
fuel used for SORE testing contain 10 percent ethanol (E10) which would represent the fuel
currently dispensed at California gasoline stations. CARB noted that, overall, their testing
indicated that engines with well-designed and constructed evaporative emission control systems
would meet the diurnal emission standards with E10 fuel and that implementing the changes in
the proposed amendments should bring all evaporative families into compliance with the diurnal
emission standards. It was not expected that additional changes would need to be made to
evaporative families that are compliant with the pre-2016 diurnal emission standards using the
prior fuel in order to continue to comply with the standards when tested with E10 fuel.171
Regarding fuel tank test procedures, the 2016 ISOR stated that the proposed amendments
would align CARB's fuel tank testing requirements with EPA's without decreasing stringency.
The revised CARB requirements would be at least as stringent as EPA's and more stringent in
some respects. Some differences would still exist between CARB's and EPA's fuel tank testing
169 SORE Authorization Support Document at 36.
170 "Public Hearing to Consider the Proposed Amendments to the Evaporative Emission Requirements for Small
Off-Road Engines, Staff Report: Initial Statement of Reasons," September 27, 2016, (ISOR) at 8.
171 ISOR at 17.
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requirements, but applicants would have the option of testing one set of fuel tanks to meet the
requirements for both CARB and EPA.172
In the 2021 ISOR, CARB proposed evaporative emission standards of 0.00 grams per test
except for portable generators for which standards were to be lower but not zero. Further, the
2021 ISOR proposed that, beginning with MY 2024, the evaporative emission standards would
cover a greater portion of an engine's evaporative emissions by expanding the standards to
include not only diurnal emissions but also hot soak emissions. The proposed amendments also
expanded the applicability of the proposed standards to include SORE generators smaller than 80
cc, a segment that had not been subject to diurnal emission standards prior to MY 2024.173
In the 2021 FSOR, and consistent with changes made to exhaust emission standards,
CARB proposed new diurnal and hot soak standards for pressure washers with SORE engines
greater than or equal to 225 cc. The proposed modifications were made in response to public
comments asking for more time to allow the zero-emission commercial pressure washer market
to develop. CARB noted that there were challenges with zero-emission pressure washers,
including a lack of availability of cordless zero-emission pressure washers. More than 30
commenters stated that the initial proposal would significantly impact the ability of professional
cleaners to provide sanitation in public areas because they often use pressure washers in places
where outlets are not available to plug in a corded unit, and the pressure washers they use have
high power demands. The proposed modifications would allow more time for the specific engine
displacement category of 225 cc and larger to comply with emission standards of zero because
pressure washers with such engines have greater pressure ratings and water flow rates that are
112 Id at 17.
173 "Public Hearing to Consider Proposed Amendments to the Small Off-Road Engine Regulations: Transition to
Zero Emissions," October 12, 2021, at 32-35.
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used in professional cleaning work. As a result of these features, pressure washers with engine
displacement greater than or equal to 225 cc cost significantly more to purchase than pressure
washers with engine displacement less than 225 cc. The cost and size of pressure washers with
engine displacement greater than or equal to 225 cc make them less practical for users other than
professional cleaning services, so users such as residential users are less likely to purchase or use
them. The unique features of pressure washers with engine displacement greater than or equal to
225 cc and the high cost of professional zero-emission pressure washers set them apart from
other equipment types and necessitated this change. Emission standards of zero would apply to
pressure washers with engine displacements less than 225 cc for model years 2024 and later,
consistent with the requirements under the Proposed Amendments described in the ISOR for all
other SORE equipment except generators. Such pressure washers are more likely to be used by
users other than professional cleaning services.174
Also, in the FSOR, CARB noted that concerns they received regarding the proposed
change in the requirement that only one engine be tested for compliance, that commenters have
speculated on the inability of manufacturers to meet both California and federal requirements
with one test engine and that the commenters during the state rulemaking do not provide
evidence to support their claims. CARB notes that although its requirements are more stringent
than federal requirements this does not preclude the use of one test engine to meet both
California and federal requirements.175
In their May 2024 Supplemental Comment Letter, Exhibit B, CARB stated that requiring
performance certification is necessary to ensure engines meet the more stringent emission
standards and support the effective inclusion of hot soak emissions in the emission standards.
174 2021 FSOR at 7-8.
175A/dat378.
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The 2021 Amendments specify revisions to section 2754(a) and add a new subsection 2754(d)
that, beginning with MY 2024, would require manufacturers to demonstrate compliance with
evaporative emission standards that incorporate hot soak emissions and to submit data showing
that hot soak plus diurnal emissions will not exceed the new emission standards prior to
certification. CARB disagrees with the assertion that removing design certification would
prevent manufacturers from using exhaust emission credits. Amendments to section 2754.1,
certification averaging, banking, and trading (ABT) for evaporative emission credits, are
discussed on pages 229-236 of the ISOR. All engines certified to the diurnal or hot soak plus
diurnal emission standards specified in section 2754(a) may participate in the ABT program for
evaporative emissions.176
EPA received several comments on the issue of test procedure consistency despite
CARB's statements that no issues exist. The primary concerns expressed by commenters were
geared toward the slight differences in requirements (e.g., California LEV III fuel versus EPA's
required fuel) rather than the presence of requirements that would require a different design or
different product for the California market versus the rest of the nation. CARB makes clear that
there are no issues that preclude the use of one engine (i.e., one design or one product) to
demonstrate compliance with both California and federal requirements. EPA agrees with this
assessment. EPA believes that any well-designed system can be made capable of meeting both
sets of standards, even if two sets of demonstrations may or may not be required to do so.177
176 CARB Supplemental Comment Letter, Exhibit B at 16.
177 To be consistent with "(2)" in terms of consistent test procedures, the California certification procedures need not
be identical to the Federal certification procedures. California procedures would be inconsistent, however, if
manufacturers would be unable to meet the state and the Federal 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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We also received comments expressing concerns over California's required SHED testing
for handheld equipment, a category for which EPA has no allowance to accept SHED testing.
However, again, an engine maker could conduct SHED testing for California and verify design
requirements for EPA and comply with both requirements with a single system. Importantly,
handheld equipment will be ZEE in the future and this issue of evaporative emission requirement
differences will no longer exist.
EPA notes that, while CARB has in place a SHED testing requirement for non-handheld
equipment in the 2024 through 2027 timeframe, EPA can accept that test data as an option in
place of the required performance test data in EPA regulations. Also, while CARB required
SHED testing for non-handheld equipment in the 2018 through 2023 timeframe, and EPA does
not require or consider for federal requirements the CARB SHED testing, the fact remains that a
single engine could be used to demonstrate compliance with EPA's requirements and the CARB
SHED testing requirements and thus does not pose test procedure consistency issues. See 40
CFRpart 1054, part 1060 and part 1065 for EPA's applicable standards.
Notably, the comments regarding test procedure consistency deal specifically with spark-
ignition SORE. ZEE has no test procedures or test requirements and are not even being certified
by CARB or EPA. As such, EPA considers the main issues to center on the 2024-2027 test
procedures for SORE portable generators and pressure washers. Given that fact and given that
EPA has a provision (see 40 CFR 1060.105(e)) to accept CARB performance testing for
compliance with EPA evaporative emission requirements on non-handheld equipment and given
that there is nothing in either the CARB or EPA standards that would preclude a single engine
being used to demonstrate compliance, EPA believes there to be no meaningful test procedure
consistency concerns.
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Based on the record before EPA, and with the burden of proof on opponents of the
authorization, there is no reasonable basis to deny the authorization request based on a finding of
test procedure inconsistency. Further, there is no evidence that a manufacturer would be unable
to test a piece of SORE equipment on both the federal and CARB test procedures, if necessary,
in order to demonstrate compliance with applicable emission standards at the federal and
California levels,
e. Safety
EPA also considers the safety of the emission controls needed to comply with the
standards. In considering any request from California to authorize the state to adopt or enforce
standards or other requirements relating to 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.178
EPA received several comments regarding safety and as noted below EPA finds that the
opponents have not met their burden of proof to demonstrate that CARB's SORE Amendments
are creating unreasonable safety issues. One commenter argued that the portable generator
standards for 2024-2027 would require lean operation which increases operating temperatures
and surface temperatures thereby increasing fire and burn risks as well as increasing maintenance
costs.179 Commenters also argued that U.S. Department of Transportation (DOT) regulations
would not allow for transporting sufficient batteries for a full day of operation of certain SORE
equipment. The commenters noted that the DOT regulations currently prohibit commercial users
178 See 40 CFR 1074.105(c).
179 PGMAat 15.
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from transporting an adequate supply of batteries needed to power day-long usage of ZEE
1 80
equipment.
Conversely, EPA received comment in support of the authorization considering the added
safety associated with the SORE amendments. A commenter stated that workers operating these
hazardous engines (i.e., spark-ignition SORE) are not protected by federal health laws and are
routinely exposed to toxic fumes and engines operating at decibel levels that destroy hearing.
The commenter argues that California's new policy will prevent hundreds of premature deaths.181
EPA has examined CARB's state rulemaking to determine their consideration of safety in
adopting the SORE Amendments. In the FSOR and their Supplemental Comment Letter, CARB
stated that battery storage, packaging, air transport, UN classification scheme, marking, and
labeling were beyond the scope of the 2021 Amendments. Further, CARB argued that
commenters had not provided evidence that batteries for ZEE cannot be transported as needed
for retail distribution, use by equipment owners, and recycling at the end of the batteries' life.182
CARB also noted that safety is often a more significant concern for gasoline-powered
equipment than for ZEE. CAL Fire requires all portable gasoline-powered equipment, which
includes lawnmowers, to have spark arrestors when used in wildland areas. Spark arrestors trap
or destroy hot exhaust particles from internal combustion engines for fire prevention. The
exhaust system, spark arrestors, and equipment must be in proper working order and free of
carbon buildup to minimize fire risk. Gasoline-powered lawn mowers can also start fires when
grass gets caught in the muffler or engine, when a user checks the fuel improperly, or when a
leaky gasket in the carburetor causes fuel to leak. The United States Consumer Product Safety
i8° OPEI at Annex C, Comment 10.
181 Dr. Anthony DeRiggi.
182 2021 FSOR at 375-378; CARB Supplemental Comment Letter, Exhibit B at 15.
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Commission has issued numerous recalls for lawn mowers that posed fire hazards caused by
leaking fuel.183
EPA concurs with CARB on these safety issues surrounding batteries and battery safety.
Modern batteries and battery chargers contain safety features geared toward maintaining safe
temperature levels during charging. Further, lithium iron phosphate (LFP) batteries have proven
to be safer than the other types of Lithium-Ion batteries for which most media reports of battery
fires are based and are more robust with respect to overcharging, over-discharging, and are less
likely to have a thermal event if short-circuited due to physical damage. Provided high quality
batteries are used and proper safety measures are taken within the design of the battery cells and
packs and the design of their venting in the event of a cell failure, there should be no significant
concerns regarding battery safety.
As for lean operation on SORE, allegedly needed to comply with the 2024-2027 portable
generator and/or pressure washer standards, EPA does not agree that lean operation is necessary
to meet the standards. Class 2 engines operated near stoichiometry using oxygen sensor feedback
control have been available in the U.S. market for more than a decade. Engines of this type using
standard three-way catalyst technology can meet the 2024-2027 portable generator and/or
pressure washer standards. Nearly two decades ago, EPA conducted a comprehensive safety
study and Failure Mode and Effects Analyses (FMEA) of catalyst-equipped, non-handheld Class
1 and Class 2 engines that investigated incremental impacts on safety, focusing on the risk of fire
and burn to consumers associated with catalyst and evaporative emissions control
technologies.184
183 Id. at 13-14.
184 U.S. EPA. 2006. EPA Technical Study on the Safety of Emission Controls for Nonroad Spark-Ignition Engines <
50 Horsepower. EPA Document No. EPA420-R-06-006.
https://nepis.epa. gov/Exe/ZvPDF.cgi/P100KIWA.PDF?Dockev=P100KIWA.PDF.
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EPA finds that CARB has reasonably addressed safety concerns raised by the
commenters and that CARB has reasonable addressed how the emission controls (e.g., batteries)
necessary for compliance with the 2021 SORE Amendments can be designed and installed and
otherwise maintained and used. Opponents of the authorization have not met their burden of
proof to demonstrate that the 2021 SORE Amendments create unsafe conditions compared with
pre-existing standards and SORE and SORE equipment. Therefore, EPA cannot deny the
authorization based on safety considerations.
III. Other Issues
EPA has long construed CAA section 209 as limiting the Agency's authority to deny
California's requests for waivers and authorizations to the respective three listed criteria under
CAA section 209(b) and section 209(e)(2)(A). This narrow review approach is supported by
decades of waiver and authorization practice and judicial precedent. In MEMA /, the D.C. Circuit
held that the Agency's inquiry under CAA section 209(b) is "modest in scope."185 The D.C.
Circuit further noted that "there is no such thing as a 'general duty' on an administrative agency
to make decisions based on factors other than those Congress expressly or impliedly intended the
agency to consider.186 In MEMA //, the D.C. Circuit again rejected an argument that EPA must
consider a factor outside the section 209(b) statutory criteria concluding that doing so would
restrict California's ability to "exercise broad discretion."187 EPA's duty, in the authorization
context, is thus to grant California's authorization request unless one of the three listed criteria is
met. "[SJection 209(b) sets forth the only waiver standards with which California must comply . .
. If EPA concludes that California's standards pass this test, it is obligated to approve California's
185 MEMA I at 1105.
186 Id. at 1116.
187 MEMA II at 453.
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waiver application."188 EPA has therefore consistently declined to consider factors outside the
three statutory criteria listed in CAA sections 209(b) and 209(e)(2)(A).
EPA received comments that were outside the scope of the considerations involved in
EPA evaluation of CARB's authorization requests under CAA section 209(e)(2)(A). Commenters
asked that EPA find as appropriate lead time from the date of EPA's authorization decision under
the concept that EPA's authorization decision marks the final action of a CARB nonroad engine
rulemaking. The commenters note that CARB has indicated that model year 2024 Executive
Orders for engines and equipment meeting the pre-2022 Amendment standards will "terminate"
the days EPA approves the waiver.189 EPA appreciates the concerns expressed by these trade
associations on behalf of its members. As noted in Section II. C, EPA believes that lead time
begins from the date of CARB's adoption of the applicable regulations or amendments and that
in this instance the opponents of the authorization have not meet their burden of proof to
demonstrate inadequate lead time. Given the timing of EPA's authorization decision, coinciding
with the end of the 2024 model year, EPA anticipates that CARB will exercise its enforcement
discretion and responsibilities in an appropriate manner upon EPA's official announcement of the
authorization decision. Within the authorization evaluation and decision EPA plays no role in
CARB's implementation of its regulation and therefore encourages regulated parties to contact
CARB for further questions regarding the implementation of its SORE regulations.
EPA also received comment that suggested that the 2021 Amendments hamper the
transition to ZEE portable generators and are not cost-effective. These commenters noted that
most available portable generators do not meet the reduced emissions standards for 2024 through
2027 and would therefore need to be redesigned and resubmitted for exhaust and evaporative
188 Id. at 463.
189 EMAand OPEI, EPA-HQ-OAR-2023-0151-0033 and 0034.
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emissions approval. The commenters also noted the research and development time plus
expenses associated with this process may not be warranted for portable generators that would
only be available for sale in California within a four-year window.190 We explain above why we
cannot conclude that these interim standards are infeasible. Insofar as the comment is raising the
question of whether EPA should consider broader policy choices made by the State, EPA notes
that section 209 contemplates that EPA defer to the State's policy choices, such as the decision to
require this interim emission standard.
IV. Decision
After evaluating CARB's authorization request and the Small Off-road Engine (SORE)
regulations, the public comments and other materials contained in the administrative record, EPA
is granting an authorization for the 2016 SORE Amendments and the 2021 SORE Amendments
that comprise the SORE regulations and that CARB submitted for an authorization under CAA
section 209(e)(2)(A).191
Section 307(b)(1) of the CAA governs judicial review of final actions by the EPA.
Petitions for review must be filed within 60 days from the date notice of this final action is
published in the Federal Register.
V. Statutory and Executive Order Reviews
As with past authorization decisions, this action is not a rule as defined by Executive
Order 12866. Therefore, it is exempt from review by the Office of Management and Budget as
required for rules and regulations by Executive Order 12866.
190 PGMAat 14.
191 Given that CARB adopted its 2016 and 2021 Amendments separately, as well as the distinct analysis on the three
statutory authorization criteria for each amendment, EPA intends our authorization of the 2016 and 2021
Amendments to be severable. Were a reviewing court to set aside our authorization regarding either amendments, or
portion thereof, EPA intends for our authorization of the other amendments to remain in effect.
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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, etseq., 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).192
Dated: December 19, 2024
Michael S. Regan,
Administrator.
192 The U.S. Government Accountability Office (GAO) has issued a decision (in the context of its review of EPA's
SAFE I Reconsideration decision) that the Congressional Review Act does not include adjudicatory orders and also
excludes certain categories of rule from coverage, including rules of particular applicability. As part of this decision,
the GAO also determined that even if the SAFE I Reconsideration waiver action were to satisfy the Administrative
Procedure Act's definition of a rule, it would be considered a rule of particular applicability, and, therefore, would
still not be subject to the CRA's submission requirement. https://www. gao. gov/products/b-334309.
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