federal register - U.S. Government Printing Office

Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Proposed Rules6399Given the unique circumstances of thisindustry, especially the extent to whichrailroads can influence locomotivedesign, EPA expects that manufacturersof new locomotives would be compelledby their customers to design andproduce their locomotives to complywith any state in-use emissionsstandards, amounting to a control onemissions from new locomotives. Inmaking this determination, the Agencyconsidered potential state in-use testingprograms in three groups: (1) Thosewhich would hold locomotives tostandards other than the federalstandards; (2) those which would holdlocomotives to the same numericalstandards, but used different testprocedures; and (3) those which wouldreplicate the federal in-use testingprogram.Under the proposed approach, stateswould be preempted from adopting anyemissions standards for in-uselocomotives. Since there is little that alocomotive operator can do to reduceemissions from in-use locomotiveengines, the action needed to complywith an in-use emission standard wouldin effect need to be taken by themanufacturer or remanufacturer of theengine. Any meaningful attempt by astate to achieve emission reductionsthrough in-use emission standardswould be expected to require someactions to comply. As described above,this would necessarily affect themanufacturers and/or remanufacturers.This would apply to all state testprograms designed to enforce anynonfederal standards, and would alsohold true for state test programs usingnonfederal test procedures, since bothwould have the practical effect ofimpacting locomotive design.However, EPA is not sure whetherstates are preempted from adopting anin-use test program to enforce thefederal standards. A duplicative stateprogram would increase the totalnumber of in-use locomotive emissiontests conducted each year; the greaterthe number of states that adopt such aprogram, the greater the number of inusetests. Given the relatively smallnumber of new engines produced eachyear, and the small total number of inuselocomotives, the proliferation ofsuch duplicative programs couldeffectively require manufacturers toinclude larger compliance margins inthe design of their engines to deal withthis unknown risk. This is becausemanufacturers recognize that, givenmanufacturing, facility, product and testvariability, measured emissions willvary from locomotive to locomotive andthere will always be a nonzeroprobability of in-use failure. However,the more testing that is conducted, thegreater likelihood that at least onefailure would be identified. In responseto this probability and the customers’desire that no failures occur in use,manufacturers might feel compelled todesign their locomotives such that theaverage emissions rate is far enoughbelow the level of the standard that therisk of their locomotives failing an inusetest program approaches zero. Thiscould affect the original locomotiveengine design because achieving loweraverage levels means that loweremission targets are necessary.Nevertheless, EPA is not sure that thesearguments justify a categoricalpreemption of state testing oflocomotives in-use using the federal testprocedure. EPA requests comment onthis position.Based on the limited ability ofoperators to reduce emissions, therelationship between operators and newlocomotive manufacturers orremanufacturers, the expectation thatstates would only adopt in-use emissionstandards that would require additionalreductions, and the potential impact ofin-use testing on interstate commerce,EPA believes that nonfederal state inusetesting programs should bepreempted as they would amount toemission standards for the manufactureror remanufacturer of new locomotiveengines. This combination of factorsappears unique to this industry, andEPA would not expect the samepreemption result to apply under othercircumstances. The Agency continues tobelieve that state in-use testingprograms for motor vehicles and othernonroad engines, including inspectionand maintenance (I/M) programs, arenot preempted under the Act.This discussion of state controls thatwould be preempted under theregulation proposed today is notintended to be exclusive. Any statecontrol that would affect how amanufacturer designs or produces new(including remanufactured) locomotivesor locomotive engines would bepreempted. EPA believes that section209(e)(1)(B) and the regulationsproposed today should be interpretedbroadly in this context, in recognition ofthe unique circumstances affecting thisindustry as described above, includingthe impact on interstate commerce ofstate emissions controls on locomotives.EPA believes this is consistent with thetext of section 209(e)(1)(B), thelegislative history, and the applicablecase law. The Agency believes that anystate control within the specificcategories described above would act asan emission standard or requirement fornew locomotives or engines and shouldbe preempted. EPA invites comment onthis view, including whether regulatoryprovisions should be included to allowstates to show that a specific controldoes not affect how a manufacturer orremanufacturer designs a newlocomotive or engine, and wouldtherefore not be preempted.It is important to note that certaincategories of potential staterequirements would also be prohibitedunder the proposed regulations becausethey would require operators to makeadjustments to a locomotive that wouldconstitute tampering under the Act andthe proposed regulations. Under section203(a)(3) of the Act, tampering includesactions that can reasonably be expectedto contribute to an increase in emissionsof a regulated pollutant. For example, astate requirement to alter the fuelinjection system or air intake system ofa locomotive to achieve NO X reductionsis likely to cause increased PM andsmoke emissions. Therefore, it is highlylikely that a railroad operator could notcomply with the state requirementwithout making an adjustment to itslocomotive that can reasonably beexpected to result in an increase inemissions of a regulated pollutant, andwould therefore be violating the federalprohibition against tampering. In suchcases where it would be impossible tocomply with the state requirementwithout violating a federal prohibition,the federal law would preempt the statelaw. For this reason, such staterequirements would be prohibitedunder the proposed national rule.VI. Emission Reduction TechnologyThis rulemaking will be the first timelocomotives and locomotive engineshave been subject to EPA regulation forthe pollutants of HC, CO, NO X, PM andsmoke. Much of this discussion of theemission reduction technologies isbased on EPA’s experience regulatingsimilar but smaller diesel engines usedin highway trucks since the 1970’s.While many of the emission controltechnologies for highway trucks areapplicable to locomotives andlocomotive engines, the design andoperation of locomotives andlocomotive engines may preclude theeffective use of some of thesetechnologies. The following paragraphsdiscuss the emission control strategiesthat EPA believes are likely to beavailable to comply with today’sproposed standards. These emissioncontrol strategies are consideredseparately for the three levels ofproposed standards (i.e., Tier 0, Tier Iand Tier II standards).Technologies EPA believes could beused to comply with the proposed