New EPA Rule Will No Longer ‘Categorically Preempt’ State Locomotive Regs

Written by Marybeth Luczak, Executive Editor
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The Environmental Protection Agency (EPA) is finalizing revisions to its regulations addressing preemption of state and local regulation of locomotives and engines used in locomotives.

“This rule implements a policy change to no longer categorically preempt certain state regulations of non-new locomotives and engines, aligning with the plain text of the Clean Air Act (CAA), and better achieving the legislative intent of providing for exclusive federal regulation of new locomotives and new locomotive engines while preserving the ability of California and other states to adopt and enforce certain state standards regulating non-new locomotives and engines,” EPA wrote in the Nov. 8 edition of the Federal Register (download below).

According to EPA, the “Clean Air Act (CAA) section 209(e)(2)(B), 42 U.S.C. 7543(e)(2)(B), requires EPA to promulgate regulations implementing section 209(e) of the Act. CAA section 209(e)(1) addresses the prohibition of state standards regarding certain classes of new nonroad engines or new nonroad vehicles including new locomotives and new engines used in locomotives.[2]

“CAA section 209(e)(2)(A) specifies the criteria relevant to EPA’s evaluation of California authorization requests (requests for a waiver of CAA preemption) for standards relating to the control of emissions from nonroad engines or nonroad vehicles other than those prohibited under section 209(e)(1). EPA’s regulations implementing these provisions for locomotives and locomotive engines were first adopted in 1998 at 40 CFR part 85 and transcribed in 2008 at 40 CFR part 1074.”

EPA said that it received industry comments regarding the finalization of its revisions, which take effect Dec. 8.

Those comments, it said, included “concerns from Wabtec that EPA’s proposed revisions could take away the stability and predictability of a federally-uniform regulatory program for new locomotives and engines.” EPA said the concern is “misplaced.” Only EPA, it said, “has the authority to promulgate standards and requirements that apply to new locomotives and new engines used in locomotives, and this rule does nothing to change that exclusive authority. California may not adopt and enforce standards or requirements that apply to new locomotives or new engines used in locomotives, as is plainly prohibited by section 209(e)(1)(B). As EPA noted in the proposal, section 209(e)(2)(A) of the Act requires EPA to authorize California’s emission standards for certain nonroad engines and vehicles, including for non-new locomotives and non-new engines used in locomotives, so long as California meets the requirements of that provision. Further, section 209(e)(2)(B) also allows certain states to adopt California’s standards so long as they meet the statutory criteria. EPA’s final rule aligns the regulation with these clear statutory requirements.”

EPA added that it does “not believe that our action improperly diminishes the regulatory stability referred to by the commenter. The underlying CAA preemption language protects manufacturers from having to juggle compliance with conflicting state and federal regulations of new locomotives, and only EPA’s regulations promulgated under CAA section 213(a)(5) can impose compliance requirements on new locomotives and new engines used in locomotives. There is no possibility, under either the CAA or as a result of EPA’s amended preemption regulations, for California or any other state to adopt and enforce different standards or other requirements that would apply to new locomotives or new engines used in locomotives. In addition, EPA’s authorization process insulates manufacturers from state-level rules that could significantly affect the design and manufacture of new locomotives or new locomotive engines. Under this final rule, EPA remains obliged to adhere to the statutory authorization criteria in CAA section 209(e)(2). EPA also intends to consider the reasoning of Allway Taxi in reviewing any California rules submitted to EPA for authorization pursuant to 40 CFR 1074.101 through 1074.105.[18].”

According to EPA, an Association of American Railroads’ (AAR) comment “supports this point, emphasizing that the removal of the categorical preemption of certain types of state regulations that EPA has, to date, deemed likely to significantly affect the design and manufacture of new locomotives or new locomotive engines, does not change the underlying statutory limitation against which EPA would evaluate a future request.[19] Specifically, the statutory limitation referenced in that comment is the one at CAA section 209(e)(2)(A), which requires the Administrator, after notice and opportunity for public hearing, to authorize California to adopt and enforce standards and other requirements relating to the control of emissions from such nonroad vehicles or engines not preempted by CAA section 209(e)(1) if California determines that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. Further, 209(e)(2)(A) states EPA shall not grant such authorization if it finds that (1) the protectiveness determination of California is arbitrary and capricious; (2) California does not need such standards to meet compelling and extraordinary conditions; or (3) California standards and accompanying enforcement procedures are not consistent with CAA section 209.”

The California Air Resources Board (CARB) in April passed a new rule aimed at reducing emissions from locomotives when they operate within the state. The AAR and the American Short Line and Regional Railroad Association in June filed a lawsuit, on behalf of their members, against CARB, challenging the rule, which they said “would limit the useful life of today’s locomotive fleet (more than 25,000 locomotives) and mandate their premature replacement with zero-emissions locomotives.”

In the lawsuit filed in the Eastern District of California, AAR and ASLRRA argued “that CARB lacks the legal authority to promulgate the In-Use Locomotive Rule,” the associations reported June 16. “Due to the interconnected nature of rail operations and the need for uniform regulatory policies, Congress, the courts, federal regulators, and even CARB itself have long acknowledged that the federal government has exclusive authority to regulate rail operations.” As a part of the suit, the groups said they filed to “preliminarily enjoin implementation and enforcement of the rule while the district court considers the case.”

“While the urgency to act is real and unquestionable, CARB uses unreasonable, flawed assumptions to support a rule that will not result in emissions reductions,” AAR President and CEO Ian Jefferies said. “Railroads have urged CARB to take the proven path of collaboration and build on our shared successes, but those arguments were rejected out of hand. Railroads are working toward reliable, efficient zero-emissions technologies; however, they cannot simply be willed into immediate existence by policymakers.”

The railroads’ partnerships with CARB in past years “have successfully reduced emissions from line haul and yard operations across the state,” according to AAR and ASLRRA, which noted that initiatives such as zero-emission cranes, yard service vehicles and other technology are at work in yards across California and the nation as anti-idling systems, fuel management systems and the use of renewable fuels are simultaneously reducing locomotive emissions.

Although the industry continues to pilot technologies such as battery-electric- and hydrogen fuel cell-powered locomotives that can potentially reduce greenhouse gas emissions and criteria pollutants across the state of California and nationwide, the associations reported, zero-emissions locomotive technology “has not been sufficiently tested in prototype or operational service and is not commercially available on the market today.” Additionally, they said, “a clear technological path has not yet emerged.”

“While the spirit behind this regulation is consistent with railroad’s environmental commitment, the rule itself is unworkable and infeasible for short lines—its implementation would literally bankrupt some small business short lines,” ASLRRA President Chuck Baker said. “And the rulemaking does not acknowledge the impact of the elimination of some short line rail service to Californians. For shippers, it eliminates an efficient means to market and threatens the competitiveness of California’s products. For the public, it means the rising cost of products and a modal shift to trucks—a far less safe means of transportation resulting in more fatalities and injuries, more congestion on California’s roads, more burden on the California taxpayer to pay for road damage, and more micro plastics from shredded truck tires in the environment and water supply.”

Similar to the Class I railroads, short line railroads are testing hydrogen and battery-electric powered locomotives, installing fuel optimization software and anti-idling technology, testing biodiesel and renewable diesel, and exploring fuel additives to lower emissions, in addition to upgrading locomotives to higher tier levels when practical, according to AAR and ASLRRA. They added that short lines largely rely on government support for these targeted pilot projects.

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