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(continued) or that do not conform with the permeation control design or permeation specifications of section 2754, the Executive Officer will notify the Holder of the Executive Order of Certification covering the engines or equipment. The Executive Officer shall also notify such Holder that the Executive Order of Certification may be suspended or revoked. The Holder of the Executive Order of Certification shall have 30 calendar days in which to notify the Executive Officer of their intent to provide additional information and/or independent test results for five tanks, engines, or equipment that document compliance of the evaporative family. The Executive Officer will consider all relevant information provided by the manufacturer, and other interested parties, including, but not limited to corrective actions applied to the noncompliant evaporative family and emission credits to remedy the failure.
(c) Suspension and Revocation of Executive Orders.
(1) The Executive Officer shall not revoke or suspend the Executive Order of Certification, without considering any information provided by the holder of such certification pursuant to (b) above.
(2) If the results of the compliance testing indicate that the failed tanks, engines, or equipment units of a particular evaporative family or subgroup are produced at one plant, the Executive Officer may elect to suspend the Executive Order of Certification with respect to that evaporative family for engines or equipment manufactured at that plant.
(3) Notwithstanding the foregoing, the Executive Officer may suspend an Executive Order of Certification , in whole or in part, effective upon written notice to the Holder if the Executive Officer finds that:
(A) The Holder of the Executive Order of Certification has refused to comply with any of the requirements of this section; or
(B) The Holder has submitted false or incomplete information in any report or information provided to the Executive Officer under this section;
(C) The Holder has rendered inaccurate any test data submitted under this section;
(D) That ARB personnel have been denied the opportunity to conduct activities authorized under this section after a warrant or court order is presented to the Holder;
(E) That ARB personnel were unable to conduct activities authorized in this Article because the facility is located in a foreign jurisdiction where local law prohibits those activities.
(4) The Executive Officer may revoke an Executive Order of Certification for an evaporative family after the Executive Order of Certification has been suspended pursuant to subsection (1) or (2) of this section if the proposed remedy for the nonconformity, as reported by the Holder to the Executive Officer, is one requiring a design change or changes to the evaporative emission control system as described in the application for certification of the affected evaporative family or subgroup.
(5) Once an Executive Order of Certification has been suspended for a failed tank, engine, or equipment, as provided for in subsection (1) of this section, the Holder must take the following actions before the Executive Order of Certification can be reinstated:
(A) Remedy the nonconformity;
(B) Demonstrate that the tank, engine, or equipment conforms to the evaporative emission standards by retesting the tank, engine, or equipment in accordance with these regulations; and
(C) Submit a written report to the Executive Officer, after successful completion of testing on the failed tank, engine, or equipment that contains a description of the remedy and test results for each tank, engine, or equipment in addition to other information that may be required by this part.
(6) Once an Executive Order of Certification for a failed evaporative family or subgroup has been suspended pursuant to subsection (1), (2) or (3) of this section, the Holder must take the following actions before the Executive Officer will consider reinstating the Executive Order of Certification:
(A) Submit a written report to the Executive Officer that identifies the reason for the noncompliance of the tanks, engines, or equipment, describes the proposed remedy, including a description of any proposed quality control and/or quality assurance measures to be taken by the Holder to prevent future occurrences of the problem, and states the date on which the remedies will be implemented; and
(B) Demonstrate that the evaporative family or subgroup for which the Executive Order of Certification has been suspended does in fact comply with the regulations of this part by testing no fewer than five tanks, engines, or equipment. The results must meet the "Pass" criteria in subsection (a)(7). Such testing must comply with the provisions of this section.
(7) Once the Executive Order of Certification has been revoked for an evaporative family or subgroup, if the Holder desires to continue introduction into commerce of a modified version of that evaporative family or subgroup, the Holder must:
After implementing the change or changes intended to remedy the nonconformity, demonstrate that the modified evaporative family does in fact conform to the applicable standards of this Article by testing five engines or equipment from the modified evaporative family unless such testing is waived by the Executive Officer.
(8) To permit a Holder to avoid storing non-test engines or equipment while conducting subsequent testing of the noncomplying evaporative family, a Holder may request that the Executive Officer conditionally reinstate the Executive Order of Certification for that evaporative family.
Note: Authority cited: Sections 39600, 39601 and 43013, Health and Safety Code. Reference: Section 43013, Health and Safety Code.
s 2766. Exemptions.
(a) Low Permeation Tanks - Metal tanks, coextruded multilayer tanks, and structurally integrated nylon fuel tanks on SORE equipment with engine displacements < 80 cc are specifically exemptrom section 2755 of this Article. Tank permeation data is not required to be submitted in the certification application.
(b) Small Production Volume Tank Exemption. These engines or equipment qualifying under section 2752(a)(26) are exempt from the diurnal standards in section 2754 and the fuel tank permeation standard in 2754 of this Article if the equipment contains the following:
(1) An evaporative emission control system certified by an engine manufacturer that uses an actively purged carbon canister, an equivalent fuel line, and a sealed tethered fuel cap; or
(2) An evaporative emission control system that passively vents fuel tank vapors to a carbon canister with a minimum butane working capacity as specified in TP-902, an equivalent fuel line, and a sealed tethered fuel cap.
Tank permeation data is not required to be submitted in the certification application for Small Production Volume Tanks.
(c) Equipment Fueled by a Vehicle Fuel Tank - Generators that are fueled from the fuel tank of an on-road motor vehicle or marine vessel are exempt from the diurnal performance requirements in section 2754 and the fuel tank permeation and carbon canister design requirements in section 2754(b). However, these generators must use fuel hose that meets the design requirements specified in section 2754(b).
Note: Authority cited: Sections 39600, 39601 and 43013, Health and Safety Code. Reference: Section 43013, Health and Safety Code.
s 2767. Innovative Products.
(a) The Executive Officer may make a determination that tank vent emission control achieved by an innovative technology may be approved per section 2767.1 if an evaluation of the innovative technology reveals that the technology can meet the evaporative emission requirements in section 2754.
(b) The Executive Officer may make a determination to exempt engines and equipment from section 2756(b) of this Article if an evaluation of the innovative technology reveals that the technology can meet the diurnal evaporative emission standards in section 2754.
(c) The Executive Officer may make a determination that fuel tanks that have undergone special treatment or that have been manufactured from a unique material are "equivalent fuel tanks" if it can be demonstrated that they meet the permeation standard in section 2755 of this Article when using TP-901, July 26, 2004. Tanks deemed equivalent augment "equivalent fuel tanks" already defined in section 2752 of this Article.
(d) A manufacturer must apply in writing to the Executive Officer for an innovative product equivalency claimed under subsection (a, b, or c). The application must include the supporting documentation that quantifies the emissions from at least 5 samples of the innovative product, including the test methods used to generate the data. The test methods shall include criteria for reproducibility, accuracy, and sampling and laboratory procedures. In addition, the applicant must provide any information to enable the Executive Officer to establish conditions for making a determination of "equivalency". All information, including proprietary data submitted by a manufacturer pursuant to this section, shall be handled in accordance with the procedures specified in title 17, California Code of Regulations, sections 91000-91022.
(e) Within 30 days of receipt of the application, the Executive Officer shall determine whether an application is complete.
(f) Within 90 days after an application has been deemed complete, the Executive Officer will determine whether, under what conditions, and to what extent, a determination of "equivalency" will be permitted. The applicant and the Executive Officer may mutually agree to a longer time period for reaching a decision. An applicant may submit additional supporting documentation before a decision has been reached. The Executive Officer will notify the applicant of the decision in writing and specify such terms and conditions that are necessary to ensure that emissions from use of the product will meet the emissions reductions specified in subsection (a, b, or c).
(g) In granting an "equivalency" determination for a fuel tank, the Executive Officer shall specify the test method(s) for determining conformance to the conditions established.
(h) For any fuel tank for which an innovative product "equivalency" has been granted pursuant to this section, the manufacturer shall notify the Executive Officer in writing at least 30 days before the manufacturer changes a product's design, connections, or other factors that may effect the ROG emissions during recommended usage. The manufacturer must also notify the Executive Officer within 30 days after the manufacturer learns of any information that would alter the emissions estimates submitted to the Executive Officer in support of the "equivalency" application.
(i) If the permeation standards are amended for a product category, all innovative "equivalency" determinations granted for products in the product category, except as provided in subsection (j), have no force and effect as of the effective date of the amended permeation standards.
(j) If the Executive Officer believes that a fuel tank for which an "equivalency" determination has been granted no longer meets the criteria for an innovative product specified in subsections (a, b, or c), the Executive Officer may hold a public hearing in accordance with the procedures specified in title 17, California Code of Regulations, article 1, subchapter 1.25, Chapter 1, Division 3, to determine if the "equivalency" determination should be modified or revoked.
Note: Authority cited: Sections 39600, 39601 and 43013, Health and Safety Code. Reference: Section 43013, Health and Safety Code.
s 2767.1. Approved Evaporative Emission Control System Components.
(a) The Executive Officer may make a determination to approve components (fuel tanks, fuel hoses, and carbon canisters) for use on evaporative emission control systems that have been shown to meet the Design Requirements in Table 1 of section 2754 of this Article.
(b) A component manufacturer must apply in writing to the Executive Officer for a component claimed under subsection (a). The application shall include the supporting documentation that quantifies the emissions or performance from at least five samples of the component, including the test methods used to generate the data. If the test methods are not as prescribed in this article the test methods shall include criteria for reproducibility, accuracy, and sampling and laboratory procedures. All information, including proprietary data submitted by a manufacturer pursuant to this section, shall be handled in accordance with the procedures specified in title 17, California Code of Regulations, sections 91000-91022.
(c) Within 30 days of receipt of the application, the Executive Officer shall determine whether an application is complete.
(d) Within 90 days after an application has been deemed complete, the Executive Officer will approve/disapprove the component. If approved, an Executive Order will be issued for the component. The applicant and the Executive Officer may mutually agree to a longer time for reaching a decision. An applicant may submit additional supporting documentation before a decision has been reached. The Executive Officer will notify the applicant of the decision in writing and specify such terms and conditions that are necessary to ensure that the component will meet the performance standards in subsection (a).
(e) If the Evaporative Emission Performance and Design Standards (reference section 2754) are amended for a product category, all "approvals" granted for components in the product category, except as provided in subsection (f), have no force and effect as of the effective date of the amended standards unless the applicable component requirements are not amended.
(f) If the Executive Officer determines that a component for which an "approval" has been granted no longer meets the performance standards specified in subsection (a), the Executive Officer may deny, suspend or revoke the Executive Order following provisions of Section 2770 of this Article.
Note: Authority cited: Sections 39600, 39601 and 43013, Health and Safety Code. Reference: Section 43013, Health and Safety Code.
s 2768. Variances.
(a) Any manufacturer of small off-road engines or equipment that use small off-road engines or fuel tanks subject to this Article that cannot meet the requirements set forth in sections 2754 through 2757 of this Article, due to extraordinary reasons beyond the manufacturer's reasonable control, may apply in writing for a variance. The variance application must set forth:
(1) The provisions of the regulations for which a variance is sought;
(2) the specific grounds upon which the variance is sought;
(3) the proposed date(s) by which compliance will be achieved; and
(4) a compliance plan detailing the method(s) that will achieve compliance.
(b) Within 75 calendar days of receipt of a variance application containing the information required in subsection (a), the Executive Officer or his nominee shall hold a public hearing to determine whether, under what conditions, and to what extent, a variance is necessary and should be allowed. Notice of the time and place of the hearing must be sent to the applicant by certified mail not less than 30 days before to the hearing. Notice of the hearing must also be submitted for publication in the California Regulatory Notice Register and sent to every person who requests such a notice, not less than 30 days before the hearing. The notice must state that the parties may, but not need to be, represented by counsel at the hearing. At least 30 days before the hearing, the variance application must be made available to the public for inspection. Interested members of the public must be allowed a reasonable opportunity to testify at the hearing and their testimony must be considered.
(c) No variance may be granted unless all of the following findings are made:
(1) that, due to reasons beyond the reasonable control of the applicant, compliance would result in extraordinary economic hardship;
(2) that the public interest in mitigating the extraordinary hardship to the applicant by issuing the variance outweighs the public interest in avoiding any increased emissions of air contaminants that would result from issuing the variance;
(3) that the compliance plan proposed by the applicant can reasonably be implemented, and will achieve compliance as expeditiously as possible; and
(4) that the applicant has mitigated the noncompliance to the maximum extent feasible.
(d) Any variance order shall specify a final date by which compliance will be achieved. Any variance order shall contain a condition that specifies increments of progress necessary to assure timely compliance, and such other conditions that the Executive Officer, in consideration of the testimony received at the hearing, finds necessary to carry out the purposes of Division 26 of the Health and Safety Code.
(e) A variance shall cease to be effective upon failure of the party to whom the variance was granted to comply with any term or condition of the variance.
(f) Upon the application of any person, the Executive Officer may review, and for good cause, modify or revoke a variance from requirements of sections 2753 through 2756 or section 2759 after holding a public hearing in accordance with the provisions of subsection (b).
(g) A variance shall not be granted for more than one full model year after the year such variance is granted.
Note: Authority cited: Sections 39600, 39601 and 43013, Health and Safety Code. Reference: Section 43013, Health and Safety Code.
s 2769. Inspection.
The Executive Officer, or an authorized representative of the Executive Officer, may periodically inspect any facility of a manufacturers of equipment, manufacturers of engines, or manufacturers of evaporative emission control components, technology, or systems subject to this Article as deemed necessary to ensure compliance with these regulations. Failure of a manufacturer, distributor, or retailer or other person subject to this Article to allow access for inspection purposes shall be grounds for suspension or revocation of an Executive Order of Certification.
Note: Authority cited: Sections 39600, 39601 and 43013, Health and Safety Code. Reference: Section 43013, Health and Safety Code.
s 2770. Denial, Suspension or Revocation of Certification.
(a) The Executive Officer for just cause may deny, suspend or revoke an Executive Order of Certification in any of the following circumstances:
(1) An applicant or Holder has materially misrepresented the meaning, findings, effect or any other material aspect of the certification application, including submitting false or incomplete information in its application for certification regardless of the applicant's personal knowledge of the falsity or incompleteness of the information;
(2) An applicant or Holder that uses a label other than the approved label on any engine or equipment, or the label used otherwise fails to comply with the requirements of this Article.
(3) An applicant or Holder may be denied certification or be subject to a suspension or revocation action pursuant to this section based upon the actions of an agent, employee, licensee, or other authorized representative.
(4) Pursuant to section 2754.1(b)(10) and (11) and 2769 above.
(b) The Executive Officer shall notify the applicant or Holder by certified mail of any action taken by the Executive Officer to deny, suspend or revoke any certification granted under this Article. The notice shall set forth the reasons for and evidence supporting the action(s) taken. A suspension or revocation is effective upon receipt of the notification.
(c) A Holder may request that the suspension or revocation be stayed pending a hearing under section 2771. In determining whether to grant the stay, the Executive Officer shall consider the harm the Holder will likely suffer if the stay is not granted. The Executive Officer shall deny the stay if the adverse effects of the stay on the public health, safety, and welfare outweigh the harm to the Holder if the stay is not granted.
(d) Once an Executive Order of Certification has been suspended pursuant to (a) above, the Holder must satisfy and correct all noted reasons for the suspension and submit a written report to the Executive Officer advising him or her of all such steps taken by the Holder before the Executive Officer will consider reinstating the Executive Order of Certification.
(e) Nothing in this section shall prohibit the Executive Officer from taking any other action provided for by law for violations of the Health and Safety Code.
Note: Authority cited: Sections 39600, 39601 and 43013, Health and Safety Code. Reference: Section 43013, Health and Safety Code.
s 2771. Appeals.
Any person whose application for Executive Order of Certification has been denied, or whose certification has been suspended or revoked may request a hearing to review the action as provided herein. Any such request shall be made within fifteen working days of the date the action for which review is sought became final.
(a) Hearing Procedure.
Except as provided for in subsection (b) below, any appeal pursuant to this section shall be conducted in accordance with the Administrative Hearing Procedures for Petitions for Review of Executive Officer Decisions, title 17, California Code of Regulations, Division 3. Chapter 1 Article 2, commencing with section 60055.1.
(b) Review by written submission.
(1) In lieu of the hearing procedure set forth in (a) above, a manufacturer may request that a review of the Executive Officer's decision be conducted by a hearing officer solely by written submission.
(2) A manufacturer may request a review of the Executive Officer's decision to deny, suspend or revoke a certification no later than 20 days from the date of issuance of the notice of the denial, suspension, or revocation. Such request shall include, at a minimum, the following:
(A) name of the manufacturer, the name, address and telephone number of the person representing the manufacturer and a statement signed by a senior officer of the manufacturer warranting that the representative has full authority to bind the manufacturer as to all matters regarding the appeal;
(B) copy of the Executive Order granting certification and the written notification of denial;
(C) a statement of facts and explanation of the issues to be raised setting forth the basis for challenging the denial, suspension, or revocation (conclusory allegations will not suffice) together with all documents relevant to those issues; and
(D) the signature of the representative named in (A) above.
(3) Upon receipt of a request for review, the request shall be referred to the administrative hearing office of the state board for assignment of a hearing officer.
(4) Within 15 days of appointment of a hearing officer ARB staff shall submit a written response to the manufacturer's submission and documents in support of the Executive Officer's action no later than 10 days after receipt of the manufacturer's submission;
(5) within 7 days of receipt of the ARB response, the manufacturer may submit one rebuttal statement which shall be limited to the issues raised in the ARB rebuttal;
(6) if the manufacturer submits a rebuttal, ARB staff may, within 7 days of receipt of the manufacturer's rebuttal, submit one rebuttal statement which shall be limited to the issues raised in the manufacturer's rebuttal; and
(7) the hearing officer shall receive all statements and documents and render a written decision. The hearing officer's decision shall be mailed to the manufacturer no later than 60 working days after the final deadline for submission of papers.
Note: Authority cited: Sections 39600, 39601 and 43013, Health and Safety Code. Reference: Section 43013, Health and Safety Code.
s 2772. Penalties.
In addition to suspension or revocation of an Executive Order of Certification as provided in this Article, the Executive Officer may seek civil or criminal penalties as provided for by law and/or such equitable relief deemed appropriate by the Executive Officer for any violation of these regulations. Such penalties shall apply on a per engine or equipment unit basis. Each day in which there is a violation shall be a separate violation.
Note: Authority cited: Sections 39600, 39601 and 43013, Health and Safety Code. Reference: Section 43013, Health and Safety Code.
s 2773. Severability.
Each part of this article is severable, and in the event that any part of this article is held to be invalid, the remainder of this article remains in full force and effect.
Note: Authority cited: Sections 39600, 39601 and 43013, Health and Safety Code. Reference: Section 43013, Health and Safety Code.