905R7611Q
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
NOTICE OF PROPOSED RULEMAKING
ON
SPECIAL LOCAL DETERMINATIONS
PROCEDURES
FOR
INTERSTATE RAILROAD
NOISE EMISSION STANDARDS
AND
INTERSTATE MOTOR CARRIER
NOISE EMISSION STANDARDS
AND
GUIDELINES FOR STATE AND LOCAL
GOVERNMENTS ON THE FILING AND PROCESSING
OF APPLICATIONS FOR PREEMPTION WAIVER
DETERMINATIONS
NOVEMBER 1976
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TABLE OF CONTENTS
1. Special Local Detenninations Procedures for Interstate
Railroad Noise Emission Standards
2. Guidelines for State and Local Governments for Filing and
Processing of Applications for Preemption from
Interstate Railroad Noise Emission Standards
3. Special Local Determinations Procedures for interstate Motor
Carrier Noise Emission Standards
4. Guidelines for State and Local Governments for Filing and
Processing of Applications for Preemption from
Interstate Motor Carrier Noise Emission Standards
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ENVIRONMENTAL PROTECTION AGENCY
[40 CFR Part 201]
Railroad Noise Emission Standards
SPECIAL LOCAL DETERMINATIONS
Notice of Proposed Rule Making
The Environmental Protection Agency (EPA) proposes to amend
Interstate Railroad Noise Emission Regulations, 40 CFR Part 201, by
adding Subpart D relating to waiver by the EPA Administrator of the
preemption of certain State and local railroad noise regulations. The
amendments proposed herein are intended to clarify the preemptive effect
of section 17(c)(1) of the Noise Control Act, 42 U.S.C. Section 4916
(c)(1), and to provide procedures for the implementation of the waiver
authority of section 17(c)(2) of the Act.
Section 17(a) of the Noise Control Act required EPA to publish
noise emission regulations for surface carriers engaged in interstate
commerce by rail. On January 14, 1976 (41 PR 2184), EPA published regu-
lations setting noise emission standards for railcars and locomotives.
According to Section 17(c)(1) of the Act, after the effective date of
Federal regulations applicable to noise emissions resulting from the
operation of any equipment or facility of an interstare rail carrier,
no State or political subdivision thereof may adopt or enforce any
standard applicable to noise emissions resulting from the operation of
the same eqn'oment or facility of such carrier unless such standard is
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identical to the Federal standard prescribed under section 17.
Subsection 17(c)(2), however, provides that nothing in section 17
shall diminish or enhance the rights of any State or political
subdivision thereof to establish and enforce standards or controls
on levels of environmental noise, or to control, license, regulate,
or restrict the use, operation or movement of any product if the
Administrator of the Environmental Protection Agency, after consul-
tation with the Secretary of Transportation, determines that such
standard, control, license, regulation or restriction is necessitated
by special local conditions and is not in conflict with regulations
promulgated under section 17.
The implementation of section 17(c)(2) requires that State and
local governments planning to adopt or enforce regulations preempted
by the terms of section 17(c)(1) apply to the EPA Administrator for
waiver of that preemption. Accordingly, EPA intends by these proposed
regulations to: 1) define the precise nature of the preemption imposed
by section 17(c)(1) of the Act, so that State and local governments
will know what regulations they may no longer adopt or enforce without
EPA approval, 2) establish procedures for State and local governments
to follow in seeking EPA approval of their adoption or enforcement
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of regulations where necessary, as authorized under section 17(c)(2),
and 3) provide guidance as to EPA's interpretation of its authority
under Section 17(c)(2).
Section 201.32 as proposed would provide guidance as to which
State and local regulations are subject to preemption by Federal
railroad noise regulations. The Agency has interpreted section 17(c)(1)
of the Noise Control Act as prohibiting State and local governments
from adopting or enforcing any noise control regulation which requires,
or has the practical effect of requiring, the physical modification
of a facility or piece of equipment which is in compliance with Federal
noise emission standards. More specifically, the prohibition would
apply to all more stringent numerical noise emission limitations on
Federally regulated equipment or facilities and all design or equipment
standards, i.e., regulations affecting a Federally regulated facility
or piece of equipment which explicitly require modifications in addition
to or more stringent than those necessary for the facility or equipment
to meet Federal standards. Further, in the case of other regulations
enacted or enforced for the purpose of noise control, if compliance can
be achieved by physical modification of such facilities or equipment,
and no reasonable alternatives exist which do not involve physical
modification of such facilities or equipment, the regulations would be
preempted and require EPA approval.
EPA has considered other interpretations of section 17(c).
For example, during the public comment period on the railroad noise
emission standards, it was suggested to the Agency that EPA's standards
would, after their effective date, totally preempt the authority of
State and local governments to regulate railroads for noise emission
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purposes. A less radical approach considered was that after the
effective date of the standards for rail cars and locomotives, the
State or local governments could no longer take any action with respect
to rail cars or locomotives, whether it involved physical modification
or simply control of use, operation, or movement. This approach was
represented by EPA's discussion of preemption in the preamble to the
final railroad regulations (41 FR 2184). Though less consistent with
the plain language of section 17(c) than the approach now proposed,
this interpretation was deemed acceptable because of certain ambiguous
elements of the legislative history of the Act. After gaining exper-
ience with the practical aspects of controlling noise sources in
interstate commerce, and after reviewing the legislative history in
light of that experience, EPA believes that the intent of the Act is
best served by following the plain language of section 17(c).
Proposed Section 201.31 would provide that if a State or local reg-
ulation is not in the category of preempted regulations, it may be adopted
and enforced without EPA involvement. If a regulation is so preempted, it
will require EPA approval. Proposed section 201.33 contains provisions
concerning the filing and processing of applications, including a provi-
sion allowing the applicant or an affected interstate carrier to request
review of EPA's decision. The proposal also provides for consultation
between the EPA Administrator and the Secretary of Transportation as
required by the Noise Control Act.
As a supplement to the provisions proposed herein, the Agency
has prepared and will make available guidelines establishing detailed
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procedures to be followed by State and local governments in filing, and
by the Agency in processing applications for waiver of preemption. It is
important that State and local governments follow the requirements of and
utilize the guidance provided by the guidelines as well as the proposed
procedures in addressing any questions or issues concerning the preemptive
aspects of the EPA's Interstate Railroad Noise Emission Regulation.
Included in such guidelines are procedural requirements as to where
applications must be filed and what information must be included in
supporting statements necessary for the Administrator to make a deter-
mination. Also included are procedures which delineate the manner in
which the decision process will be conducted for all applications
submitted to the Agency. The determinations will be treated as informal
rule making, and interested parties will have the opportunity to partic-
ipate. The guidelines provide for publicaton in the Federal Register of
applications when received, allowance for a public comment period, and
publication of the final determination. The guidelines also contain pro-
visions concerning the Agency's processing of requests for review of final
determinations.
Under section 17(c)(2) of the Noise Control Act, the Administrator
may waive preemption in any case where he determines that the State or
local action is necessitated by special local conditions and is not in
conflict with the Federal regulations. This provision was intended to
allow flexibility to deal with situations where circumstances surrounding
the operations of railroad equipment and facilities within particular com-
munities result in essentially unique local health and welfare problems.
Proposed Section 201.34 gives guidance as to EPA's interpretation of this
provision of the Act. It defines in a general manner the kinds of factors
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which EPA will consider as evidence of a special local condition, and it
explains how the Administrator will assess the degree of conflict between
the State or local action and the Federal regulations. Finally, it provides
that the Administrator will balance these factors against one another taking
into account the availability of reasonable alternative means of solving the
special local noise problem. Because every community is different, each will
present a different set of factors for the Adminstrator to consider. Thus, it
is not possible to develop an exhaustive list of actions he would or would not
approve. However, the general rules proposed in section 201.34 are expected to
be sufficient guidance to State and local governments as to the limits of the
Administrator's authority under section 17(c)(2) of the Act.
The Administrator's grant of an application for waiver of preemption
is somewhat limited; it represents an administrative action with the effect
that the provisions of Section 17 of the Noise Control Act will no longer be
a legal basis upon which to challenge the State or local agency's authority
to adopt or enforce the regulation. The Administrator does not believe
that this finding represents an approval of the proposed State or local
law, or that it affects in any way any other requirements which that
standard must meet. Specifically, the Administrator's waiver of preemption
with respect to a proposed law or rule does not mean that it may contravene
other standards established by law, for example those related to safety;
nor, as limited by the Commerce Clause of the U.S. Constitution, may it impose
an undue burden on interstate commerce, although some of the factors relevant
to that test will already have been determined by the Administrator in assessing
conflict with Federal regulations. State and local agencies are encouraged to
carefully consider these matters during the development of such proposals.
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It is the Agency's intention that the guidance provided State
and local governments by the proposed procedures and the supplemental
guidelines, when finalized, be augmented where necessary by consultation
with the EPA Regional Offices. State and local governments are, therefore,
encouraged to freely communicate their questions and concerns on all
matters related to prospective applications for preemption waiver deter-
minations, or otherwise concerning the preemptive aspects of the EPA's
Interstate Railroad Noise Regulation, to the appropriate EPA Regional
Office. This consultation will help ensure that applications for determin-
ations are submitted properly and only when necessary, and will aid in the
effective solution of State and local noise problems in the most expedi-
tious manner.
Interested persons are invited to participate in the development
of these proposed regulations by submitting their written data, views,
and arguments. Communications should identify the regulatory docket
number and be submitted with five copies to: Director, Standards and
Regulations Division, Office of Noise Abatement, and Control (AW-471),
Attention: Docket No.: 76-10, U.S. Environmental Protection Agency,
Washington, D. C. 20460. To assure that all comments receive adequate
consideration, they should reach the Agency no later than 45 days after
the date of this notice.
These amendments are proposed under the authority of 42 U.S.C.
section 4916 (c) and 5 U.S.C. section 552(a) (1)(C), (D).
NOV181976
Dated John R. Quarles, Jr.
Acting Administrator
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It is proposed to amend 40 CFR Part 201 by adding the following
subpart:
Subpart C - State and Local Authority
S201.30 Definitions
S201.31 General Rules
S201.32 Preemption
S201.33 Filing and Processing of Applications
S201.34 Basis for Determinations
201.30 Definitions
(a) Administrator
As used in this subpart, the term Administrator shall refer to
the Administrator of the Environmental Protection Agency or any person
who performs any act on his behalf.
(b) Federally Regulated Equipment
Any piece of equipment of an interstate rail carrier to which a
standard is in effect under 40 CFR Part 201, including any item which
is an integral element or component of such equipment and any item whose
interaction contributes to the noise measured when operating under the
conditions specified in such regulations for compliance measurement.
Included among such items are refrigeration units, or auxiliary engines
on locomotives or rail cars, and track. Items excluded from the applica-
bility of the Federal standards by 40 CFR Section 201.10 are not Federally
regulated equipment.
(c) Non-Federally Regulated Equipment
Any piece of equipment of an interstate rail carrier which is
not Federally regulated equipment as defined in Section 201.30(b).
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(d) Design or Equipment Standards
Those actions taken by States or political subdivisions thereof
which expressly require for the purpose of noise control the installation
of sound attenuation equipment or other hardware, or the implementation
of design changes, in addition to or more stringent than those necessary
for equipment or facilities to meet the Federal standards.
(e) General Environmental Noise Standards
Those actions taken by States or political subdivisions thereof
which establish allowable ambient noise levels or receiving land use
noise level standards which focus on the identity of the land receiving
the sound rather than the identity of noise sources.
(f) Use, Operation, or Movement Controls
Those actions taken by States or political subdivisions thereof
which attempt to regulate the time, manner, nature, or frequency of
the operation of particular equipment or facilities of interstate
rail carriers for the purpose of noise control.
(g) Action which effectively requires physical modification of
Federally-regulated equipment or facilities
Any action imposing a requirement such that compliance can be
achieved by physical modification of Federally-regulated equipment
or facilities, and no reasonable alternative exists which does not
involve physical modification of Federally-regulated equipment or
facilities.
(h) Physical modification of Federally regulated equipment or
facilities.
Physical modifications in addition to or more stringent than those
necessary for the equipment or facilities to meet the Federal standards.
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(i) Agency Guidelines on the Filing and .Processing of
Applications
Procedural guidelines prepared and published by the EPA as a
supplement to the provisions of this subpart which establish the
procedures to be followed by State and local governments in filing,
and by the EPA in processing applications for waiver of preemption
under Section 17(c)(2) of the Noise Control Act of 1972.
201.31 General Rules
(a) No State or local government shall adopt or enforce any
regulation which is preempted, according to the rules in Section 201.32,
unless an application has been submitted to the EPA in the manner pre-
scribed in Sections 201.33(a) and (b) and in the Agency's guidelines on the
filing and processing of applications; and a final determination approving
such application in whole or in part under Section 201.33(c) or Section
201.33(d) has become effective.
(b) Any regulation which is not preempted under Section 201.32
may be adopted and enforced without EPA approval.
(c) The State and local government shall itself, or through
consultation with the appropriate EPA Regional Office, decide whether
a regulation which it proposes to adopt or enforce is preempted under
Section 201.32.
(d) Where the Agency finds that EPA approval is not required because
an application relates to a regulation which is not preempted, such
decision will not constitute EPA approval or disapproval of the proposed
State or local regulation.
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fe) Any final determination under Section 201.33(c) or Section
201.33(d) may approve in part and disapprove in part the adoption
or enforcement of the regulation to which an application relates.
In any such case, that part of the regulation disapproved may not
be adopted or enforced.
(f) Any final determination approving the adoption or enforce-
ment of a regulation, or any part thereof, under Section 201.33(c) or
Section 201.33(d) will specify an effective date before which such
adoption or enforcement may not take place. The effective date of a final
determination under Section 201.33(c) will normally be 30 days from the date
of publication of such determination, or, if reviewed pursuant to Section
201.33(d), the date of issuance of final approval under Section 201.33(d),
whichever comes later.
201.32 Preemption
(a) The Federal interstate rail carrier noise emission
regulations under 40 CFR Part 201 preempt, after their effective dates,
the authority of States and political subdivisions thereof to adopt or
enforce any standard applicable to noise emissions resulting from
operation of the same facilities or equipment covered by such Federal
regulations unless such standard is identical to the Federal standard.
Therefore, before taking any such preempted action, as defined in (b)
through (d) of this section, States or political subdivisions thereof
are required to obtain a determination by the Administrator of the EPA
in accordance with these provisions.
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(b) A State or local action shall be deemed to be a preempted
standard applicable to noise emissions resulting from operation
of Federally regulated facilities or equipment if, for the purpose
of noise control, it:
(1) Establishes a numerical noise emission limitation
on Federally regulated equipment or facilities
which is more stringent than the Federal standard
applicable to such equipment or facilities; or
(2) By its terms requires the physical modification
of Federally regulated equipment or facilities; or
(3) It is neither (1) nor (2) above, but it effectively
requires the physical modification of Federally regulated
equipment or facilities (as defined in Section 202.30 (g)
and (h)).
(c) Preempted Actions as to Adoption or Enforcement. A
determination according to this subpart is required regarding the
adoption or enforcement of the following types of regulations which
are considered to be preempted:
(1) Regulations which establish noise emission standards for
Federally regulated equipment which are more stringent
than the Federal standards.
(2) Regulations which establish design or equipment standards
for Federally regulated equipment.
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(3) Regulations establishing use, operation, or movement
controls on Federally regulated equipment for the purpose
of noise control which require the physical modification
of the Federally regulated equipment. Regulations
in this category include those which attempt to restrict
the use, operation, or movement of Federally regulated
equipment that emit more than a specified number of
decibels, or that are not equipped with mufflers or other
specified noise abatement equipment.
(4) Regulations establishing noise emission standards for
non-Federally regulated facilities of interstate rail
carriers which effectively require the physical
modification of Federally regulated equipment operating
within the facility.
(5) Regulations establishing use or operation controls
for non-Federally regulated facilities of interstate
rail carriers which effectively require the physical
modification of Federally regulated equipment operating
within the facility.
(d) Preempted Actions as to Enforcement only. A determination
according to this subpart is required with respect to regulations
establishing general environmental noise standards only at such time
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as a State or political subdivision thereof proposes to enforce such
standards against interstate rail carriers, and only if compliance would
effectively require the physical modification of Federally regulated
equipment or facilities.
(e) Nonpreempted Actions. A determination according to this subpart
is not required regarding the adoption or enforcement of the following
types of regulations which are considered to be not preempted:
(1) Regulations establishing noise emission standards which
are identical to the Federal noise emission standards for
interstate rail carriers.
(2) Regulations establishing noise emission standards for
Federally regulated equipment which are less stringent
than the Federal standards.
(i) Such less stringent regulations must ensure
that virtually each piece of equipment found
in violation of those regulations would if
tested be found in violation of the Federal
standards.
(ii) Such less stringent regulations can specify
testing conditions less rigorous than those
specified in the Federal regulations if the
level of the standard is relaxed so as to only
identify equipment which would violate the
Federal standards.
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(iii) Such less stringent regulations can be used
under less than ideal testing conditions to
identify "gross violations"; i.e., equipment
that violates the Federal standards by a
substantial amount.
(3) Regulations establishing use, operation, or movement
controls for Federally regulated equipment of interstate
rail carriers, compliance with which does not effectively
require physical modification of such Federally regulated
equipment.
(4) Regulations establishing the following for non-Federally
regulated equipment of interstate rail carriers:
(i) noise emission standards
(ii) use, operation or movement controls,
(iii) design or equipment standards.
(5) Regulations establishing noise emission standards for
non-Federally regulated facilities of interstate
rail carriers which do not effectively require the
physical modification of Federally regulated equipment
operating within the facility.
(6) Regulations establishing use or operation controls on
non-Federally regulated facilities of interstate rail
carriers which do not effectively require the physical
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modification of Federally regulated equipment operating
within the facility.
(7) Regulations establishing design or equipment standards
for non-Federally regulated facilities of interstate rail
carriers. Examples of such regulations would include
regulations requiring installation of quiet retarders or
noise barriers around retarders in railroad hump yards,
or installation of noise barriers along selected sections
of railroad rights-of-way.
(8) Regulations establishing general environmental noise
level standards where either the operations of interstate
rail carriers are not among the noise sources causing a
violation of the regulation, or if such operations are
among the noise sources causing a violation, such
regulations do not effectively require the physical
modification of the Federally regulated equipment of
interstate rail carriers.
(9) Regulations establishing use controls which prohibit
or restrict the use of warning devices such as horns,
whistles, or bells. An example of such a control
would be an ordinance which prohibited the sounding
of a locomotive horn except as a necessary warning
s ignal.
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(10) Regulations which impose use, operation or movement
controls on the equipment or facilities of interstate
rail carriers for purposes unrelated to noise
control. Examples of such regulations would be
ordinances which prohibit the transport of hazardous
freight within populous areas by interstate rail
carriers.
(11) Regulations used for identifying interstate rail
carrier equipment that is in probable violation of
Federal standards, provided that ultimate non-compliance
be based upon the failure to meet standards no more
stringent than those specified in Federal regulations.
Such regulations are sometimes called "screening tests"
and serve to identify probable violators of Federal
standards so that voluntary corrective action might
be taken without resort to a test according to
Federally authorized procedures, or so that probable
violators can be instructed to have a test performed
according to Federally authorized procedures with
compliance based on meeting standards either identical
to Federal standards, or otherwise approved under this
Subpart.
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201.33 Filing and Processing of Applications
(a) An application for a determination by the Administrator
approving the adoption or enforcement of a regulation which is
preempted according to Section 201.32 may be submitted only by a
State or local governmental office or agency which has the authority
to adopt or enforce such regulation.
(b) Each applicant shall have published in a newspaper of general
circulation within its jurisdiction, notice of its intent to file an
application with the EPA for a special local determination under this
Subpart.
(c) The Administrator after consultation with the Secretary of
Transportation or his delegate, will, within 180 days of the Agency's
receipt of an application, issue a final determination approving or
disapproving the application or any part thereof, and will publish such
determination in the Federal Register along with an explanation of the
basis for his determination. Subject to subsection (d), such determin-
ation will constitute final agency action on the application.
(d) Within 30 days after such publication, the applicant or any
affected interstate rail carrier may request that the Administrator
review the final determination published under subsection (c), upon
which such final determination may be either affirmed, overruled, or
held for_further consideration.
201.34 Basis for Determinations
(a) The Administrator, after consultation with the Secretary of
Transportation or his delegate, will permit the adoption and enforcement
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of any preempted State or local regulation which he determines is
necessitated by special local conditions and is not in conflict with
the regulations in this Part.
(b) In making any determination under subsection (a) of this
section, the Administrator will balance the following factors:
(1) The nature and extent of the special local condition
upon which the application is based.
(2) The degree to which the State or local action would
conflict with the Federal regulatory scheme.
(3) The availability of solutions other than those
proposed which could provide the necessary relief
yet conflicting to a lesser degree with the Federal
regulatory scheme.
(c) In assessing the severity of the special local condition
upon which the application is based, the Administrator will consider
the degree to which denying the application would be inconsistent
with the policy of the Noise Control Act of providing an environment
free from noise that jeopardizes the public health and welfare.
(1) In general the Administrator will consider whether
there exist geographical, topographical or demographic
conditions which render Federal noise emission standards
inadequate to protect public health and welfare. Such
factors as the proximity of noise-sensitive populations
to noise sources, or conditions which increase either
the duration or intensity of noise will be considered
relevant.
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(2) In particular, the following are considered illustrative
examples of the kinds of conditions which may cause or
contribute to a special local condition:
(i) Steep upgrades or downgrades which cause
Federally regulated locomotives to operate
for sustained periods at or near full
throttle.
(ii) The location of hospitals, nursing homes,
retirement homes, or other institutions for
the recuperation of the sick or elderly
near a heavily used railroad facility
or right-of-way.
(iii) the location of large numbers of residential
structures near a heavily used railroad
facility or right-of-way.
(iv) The location of schools, churches, or other
educational facilities near a heavily used
railroad facility or right-of-way.
(3) The following factors will be considered relevant but
not determinative in and of themselves as to the question
of the existence of a special local condition:
(i) Public concern for noise control.
(ii) Enactment of noise control regulations prior
to the promulgation of the Federal Railroad
Noise Emission Standards.
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(d) In assessing the degree to which the State or local action
would conflict with the Federal regulatory scheme, the Administrator
will consider the degree to which granting the application would be
inconsistent with the policy of the Noise Control Act of providing
Federal standards for sources of noise in commerce which require
national uniformity of treatment. The following factors will be
considered relevant to assessing the degree of conflict with the
Federal regulatory scheme:
(1) The number of pieces of railroad equipment that
would be affected by the action.
(2) The degree to which equipment affected by the State
or local action operate in localities other than that
of the State or local government which proposed to
regulate them.
(3) Whether the State or local action would impose testing
requirements or procedures which are different from
those imposed by Federal regulations and which
constitute a significant burden on interstate rail
carriers.
(4) The degree to which the free flow of interstate
commerce would be impeded by compliance with the
State or local regulation.
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Guidelines for State and Local Governments on the
Piling and Processing of Applications for Preemption
Waiver Determinations under Section 17 (c)(2) of the
Noise Control Act of 1972
Section 1. Introduction
Section 2. Definitions
Section 3. Filing of Applications
Section 4. Processing of Applications
Section 1. Introduction
These guidelines are to act as a supplement to the provisions of
Subpart D of 40 CFR 201, which contain the detailed delineation of the
United States Environmental Protection Agency's view of the preemptive
effect of the Interstate Railroad Noise Emission Regulation and establish
the basis upon which determinations for waivers of preemption with respect
to that regulation will be made by the Agency.
The guidelines set out below contain the procedures to be followed
by State and local governments in filing, and by the EPA in processing
applications for waiver of preemption. Included are procedural require-
ments as to where applications must be filed and what information must
be included in supporting statements necessary for the Administrator
of the EPA to make a determination, as well as procedures delineating the
manner in which the decision process will be conducted for all applica-
tions submitted to the Agency.
It is important that State and local governments follow the require-
ments of and utilize the guidance provided by both these guidelines and
the procedures of Subpart D of 40 CFR 201 in addressing any questions or
issues associated with the preemptive aspects of the EPA's Interstate
Railroad Noise Emission Regulation.
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Section 2. Definitions
(a) The definitions of 40 CFR 201, Subpart D, Section 201.30 are
applicable to these guidelines.
(b) Deputy Assistant Administrator for Noise Abatement and Control.
An official of the Environmental Protection Agency designated by and
acting for the Administrator in making determinations under 40 CFR 201,
Subpart D.
(c) Assistant Administrator for Air and Waste Management.
An official of the Environmental Protection Agency designated by
and acting for the Administrator in making determinations under 40 CFR
201, Subpart D.
Section 3. Filing of Applications
(a) An application for a determination- by the Administrator
approving the adoption or enforcement of a regulation which is
preempted according to 40 CFR 201, Subpart D, Section 201.32 may be
submitted only by any State or local governmental office or agency which
has the authority to adopt or enforce such regulation.
(b) All requests, applications, submittals and other communi-
cations to the Administrator pursuant to the procedures of 40 CFR 201,
Subpart D shall be submitted and addressed to the appropriate Regional
Office of the Environmental Protection Agency. All such correspondence
shall be filed in triplicate.
Addresses for all EPA Regional Offices are:
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U. S. EPA Regional Administrator
Attention: Noise Office, Special Local Determinations
(1) Region I, Environmental Protection Agency, Room 2303,
John F. Kennedy Federal Building, Boston, Massachusetts
02203. (Connecticut, Maine, Massachusetts, New Hampshire,
Rhode Island and Vermont).
(2) Region II, Environmental Protection Agency, Room 847,
26 Federal Plaza, New York, New York 10007. (New
Jersey, New York, Puerto Rico, and the Virgin Islands).
(3) Region III, Environmental Protection Agency, Curtis
Building, Sixth and Walnut Street, Philadelphia,
Pennsylvania 19106. (Delaware, Maryland, Pennsylvania,
Virginia, West Virginia, and the District of Columbia).
(4) Region IV, Environmental Protection Agency, Suite
300, 1421 Peachtree Street, N. E., Atlanta, Georgia
30309. (Alabama, Florida, Georgia, Kentucky, Missis-
sippi, North Carolina, South Carolina, and Tennessee).
(5) Region V, Environmental Protection Agency, One North
Wacker Drive, Chicago, Illinois 60606. (Illinois,
Indiana, Michigan, Minnesota, Ohio, and Wisconsin).
(6) Region VI, Environmental Protection Agency, Room 1125,
1600 Patterson Street, Dallas, Texas 75201. (Arkansas,
Louisiana, New Mexico, Oklahoma, and Texas).
(7) Region VII, Environmental Protection Agency, 1735
Baltimore Avenue, Kansas City, Missouri 64108.
(Iowa, Kansas, Missouri, and Nebraska).
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(8) Region VIII, Environmental Protection Agency, Lincoln
Tower, 1860 Lincoln Street, Denver, Colorado 80203.
(Colorado, Montana, North Dakota, South Dakota, Utah,
and Wyoming).
(9) Region IX, Environmental Protection Agency, 100 California
Street, San Francisco, California 94111. (Arizona,
California, Hawaii, Nevada, American Samoa, Guam, Trust
Territories of Pacific Islands, and Wake Island).
(10) Region X, Environmental Protection Agency, 1200 Sixth
Avenue, Seattle, Washington, 98101. (Alaska, Idaho,
Oregon, and Washington).
(c) Each application under 40 CFR 201, Subpart D shall include a
supporting statement designed to establish that the State or local
standard, control, license, regulation or restriction in question is
necessitated by special local conditions and is not in conflict with the
Federal interstate rail carrier noise emission regulations. The following
information shall be included in each supporting statement:
(1) The name and address of the state or local
government agency or office making the
request; the name of the official heading that
agency or office; and the name, address,
and phone number of the principal contact person
regarding the request.
(2) The complete text of the regulation sought to
be established or enforced.
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(3) Information to permit the Agency to fully
assess the nature of the local noise problem
which the State or local regulation is attempting
to solve. Information which applicants are
encouraged to provide includes the following:
(i) A detailed description of the
geographical area for which a deter-
mination is being requested. Included
should be an accurate, up-to-date map
indicating the boundaries of the area
concerned, and capable of reasonably
accurate scaling for the determination
of distances; identification of the
positions or boundaries of all
affected noise sources and any land
areas or locations for which
classification as noise receivers
is appropriate relative to the
request; a description of the
approximate heights of buildings,
walls, barriers, or embankments
adjacent to identified noise sources
or receivers; and a description of any
unusual topographical or climatological
conditions which render the area concerned
more or less sensitive to noise.
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ii) A detailed description of the
applicable zoning laws of the area
concerned, including zoning exceptions
whose identification is appropriate
relative to the request, either as
noise sources or receivers.
(iii) A detailed description, within
the area concerned, of the population
impacted by the affected rail carrier
noise sources during both daytime
(7am - 10pm) and nighttime (10pm - 7am)
hours. Included shall be the size and
approximate distribution of such impacted
population and the nature of the associated
land use, such as residential, commercial,
industrial, or recreational.
(4) A detailed statement of the nature and extent
of the special local condition which is alleged
to necessitate the adoption or enforcement of the
State or local regulation. This should include
references to information submitted under paragraph
(3) of this subsection.
(5) Information to provide the Agency with a full
understanding of the type of rail carrier equipment
and/or facilities to which the regulation would
apply and the nature of the rail carrier operations
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involved. Information which applicants are
encouraged to provide includes the following, as
appropriate:
(i) The types of locomotives affected by
the local regulation (diesel-electric,
electric, gas turbine, freight, passenger,
or switchers).
(ii) Whether auxiliary equipment on locomo-
tives or railcars, such as air conditioning,
refrigeration, or auxiliary power units, is
affected.
(iii) Whether facilities such as marshalling
yards, humping yards, or maintenance shops are
affected.
(iv) The nature and frequency of the
operations of the equipment and facilities
affected and the times at which such
operations occur, such as: the volume
flow per hour (trains/hour) as a function
of the time of day; the speeds of the
trains; the average train length; the
number and type of locomotives operating
within affected facilities; the type of
operations taking place within affected
facilities and the time of day at which
such operations occur.
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(6) A description of alternative means of compliance
available to affected interstate rail carriers; including
information as to the technical availability of and
the costs associated with each alternative means; and
detailed data indicating to what extent each alternative
means will achieve compliance with the local regulation.
Where an alternative means of compliance involves an
operator-oriented requirement, a description must be
included describing how an operator of regulated equip-
ment can be expected to know what mode of operation will
satisfy the requirement.
(7) Information or data indicating to what extent full
compliance with the local regulation either necessarily
or optionally involves the abatement of noise from
sources other than interstate rail carrier equipment
or facilities.
(8) A description of any alternative means of solving-
the local noise problem available to the
jurisdiction making the application which do not
involve the noise abatement of Federally regulated
equipment or facilities, and a discussion of the
reasons why these means are inadequate or imprac-
tical.
(9) A one page summary of the particular application
which the EPA can publish in the Federal Register
according to Section 4(c) of these guidelines.
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Such summary shall include a description of: (1)
the regulation sought to be established or enforced,
(2) the particular local noise problem requiring
action, and (3) the rail carrier equipment, facil-
ities, and operations to which the regulation would
be applicable.
(10) Other suggested information which applicants
are encouraged to provide includes the following:
(i) Information as to the number and
nature of recorded complaints received
from the population within the area
concerned relative to noise generated
by affected rail carrier equipment
or facilities.
(ii) A description of the benefits
expected to result from compliance
with the State or local regulation.
This information should include the
number of people whose exposure to
noise is expected to be reduced with
such exposure expressed in terms of
equivalent sound levels (Leq), day-
night equivalent sound levels (Ldn),
or some other generally accepted means
of measuring population exposure to
noise; and the degree of such reduction
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relative to the approximate distribution
of the benefitted population throughout
the area concerned. Other benefits to
the health and welfare of the impacted
population may also be presented.
(d) Information and data presented in the supporting statement(s)
shall be referenced by giving the source from or procedure by which such
information or data was derived. All noise measurements shall include a
description of the methodology used in obtaining such measurements.
(e) Each supporting statement shall include a certification as to
the accuracy and validity of its contents and shall be signed by the
official who heads the State or local agency or office submitting the
application.
(f) With each application the applicant shall provide the Agency
with evidence that it has published in a newspaper of general circulation
within its jurisdiction,notice of its intent to file an application with
the EPA for a special local determination under 40 CFR 201, Subpart D.
Such notice shall include a description of: (1) the regulation sought
to be established or enforced, (2) the particular local noise problem
requiring action, and (3) the railroad equipment, facilities, or opera-
tions to which the regulation would be applicable.
Section 4. Processing of Applications
(a) The Regional Administrator with whom applications are filed
will review each application and will return any application which lacks
any information required by Section 3. The Regional Administrator will
also consult informally with the corresponding regional office of the
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Department of Transportation and the applicant to assure wherever
necessary that other related transportation regulations concerning
safety or the routing of hazardous materials have been properly consi-
dered. The Regional Administrator will forward to the Deputy Assistant
Administrator for Noise Abatement and Control all applications which
he adjudges to contain the required information under Section 3. In
addition, where he deems appropriate, the Regional Administrator may
also prepare and forward recommended determinations concerning individual
applications.
(b) The Deputy Assistant Administrator for Noise Abatement
and Control will upon receipt of an application make an initial
decision as to whether the proposed State or local action is
preempted according to 40 CFR 201, Subpart D, Section 201.32.
(1) The procedures in subsections (c) - (f) of this
section will be followed with respect to any
application which is determined by the Deputy
Assistant Administrator to relate to the
adoption or enforcement of a preempted
regulation.
(2) The Deputy Assistant Administrator will
return to the applicant any application
which by his determination relates to
a regulation which is not preempted,
and will take no further action on
such application.
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(c) The EPA will publish in the Federal Register each
application which is determined by the Deputy Assistant Administrator
to relate to the adoption or enforcement of a preempted regulation.
(d) Following publication of each application under sub-
section (c) of this section, interested persons will be given an
opportunity to file written comments for a period of not less than 30
days as to whether the Administrator should approve or disapprove such
application.
(e) As soon as practicable after the close of the period allowed
for comments under subsection (d) of this section, the Deputy Assistant
Administrator will consider the comments received and consult with the
Secretary of Transportation or his delegate.
(f) The Deputy Assistant Administrator, after consultation with
the Secretary of Transportation or his delegate, will, within 180 days
of the Agency's receipt of an application, issue a final determination
approving or disapproving the application or any part thereof, and
will publish such determination in the Federal Register along with an
explanation of the basis for his determination. Subject to subsection
(g), such determination will constitute final agency action on the
application.
(g) The applicant or any affected interstate rail carrier
may request that the Assistant Administrator for Air and Waste
Management review the final determination of the Deputy Assistant
Administrator published under subsection (f).
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(1) Any such request must be filed in writing and
must be received by the Assistant Administrator
for Air and Waste Management within 30 days after
publication of the notice in the Federal Register
under subsection (f).
(2) After receipt of a request for review, which was sub-
mitted in a timely manner,the Assistant Administrator
for Air and Waste Management will consult informally
with the Secretary of Transportation or his delegate
and will either affirm the decision of the Deputy
Assistant Administrator, or overrule such decision,
or refer the matter back to the Deputy Assistant
Administrator for further consideration.
(3) Any determination of the Deputy Assistant
Administrator after reconsideration under
paragraph (g)(2) will be subject to the notice
requirement of subsection (f) and the right
of appeal under subsection (g).
(4) Any decision by the Assistant Administrator
affirming or overruling a determination of the
Deputy Assistant Administrator will constitute
final agency action on the application.
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ENVIRONMENTAL PROTECTION AGENCY
[40 CFR Part 202]
Interstate Motor Carrier Noise Emission Standards
SPECIAL LOCAL DETERMINATIONS
Notice of Proposed Rule Making
The Environmental Protection Agency (EPA) proposes to amend
Interstate Motor Carrier Noise Emission Regulations, 40 CFR Part 202,
by adding Subpart C relating to waiver by the EPA Administrator of the
preemption of certain State and local truck noise regulations. The
amendments proposed herein are intended to clarify the preemptive
effect of section 18(c)(1) of the Noise Control Act, 42 U.S.C.
Section 4917(c)(1), and to provide procedures for the implementation
of the waiver authority of section 18(c)(2) of the Act.
Section 18(a) of the Noise Control Act required EPA to publish
noise emission regulations for motor carriers engaged in interstate
commerce. On October 29, 1974 (39 FR 38208), EPA published regulations
setting noise emission standards for vehicles over 10,000 pounds
GVWR/GCWR operated by motor carriers engaged in interstate commerce.
According to Section 18(c)(1) of the Act, after the effective date of
Federal regulations applicable to noise emissions resulting from the
operation of any motor carrier engaged in interstate commerce, no State
or political subdivision thereof may adopt or enforce any standard
applicable to noise emissions resulting from the same operation of
such motor carrier unless such standard is identical to the Federal
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standard prescribed under section 18. Subsection 18(c)(2), however,
provides that nothing in section 18 shall diminish or enhance the
rights of any State or political subdivision thereof to establish and
enforce standards or controls on levels of environmental noise, or to
control, license, regulate, or restrict the use, operation or movement
of any product if the Administrator of the Environmental Protection
Agency, after consultation with the Secretary of Transportation,
determines that such standard, control, license, regulation or
restriction is necessitated by special local conditions and is not in
conflict with regulations promulgated under section 18.
The implementation of section 18(c)(2) requires that State and
local governments planning to adopt or enforce regulations preempted
by the terms of section 18(c)(1) apply to the EPA Administrator for
waiver of that preemption. Accordingly, EPA intends by these proposed
regulations to: 1) define the precise nature of the preemption imposed
by section 18(c)(1) of the Act, so that State and local governments
will know what regulations they may no longer adopt or enforce without
EPA approval, 2) establish procedures for State and local governments
to follow in seeking EPA approval of their adoption or enforcement
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of regulations where necessary, as authorized under section 18(c)(2),
and 3) provide guidance as to EPA's interpretation of its authority
under Section 18(c)(2).
Section 202.32 as proposed would provide guidance as to which
State and local regulations are subject to preemption by Federal motor
carrier noise regulations. The Agency has interpreted section 18(c)(1)
of the Noise Control Act as prohibiting State and local governments
from adopting or enforcing any noise control regulation which requires,
or has the practical effect of requiring, the physical modification
of a facility or piece of equipment which is in compliance with Federal
noise emission standards. More specifically, the prohibition would
apply to all more stringent numerical noise emission limitations on
Federally regulated equipment or facilities and all design or equipment
standards, i.e., regulations affecting a Federally regulated facility
or piece of equipment which explicitly require modifications in addition
to or more stringent than those necessary for the facility or equipment
to meet Federal standards. Further, in the case of other regulations
enacted or enforced for the purpose of noise control, if compliance can
be achieved by physical modification of such facilities or equipment,
and no reasonable alternatives exist which do not involve physical
modification of such facilities or equipment, the regulations would be
preempted and require EPA approval.
EPA has considered other interpretations of section 18(c), such
as that where the EPA's standards would, after their effective date,
totally preempt the authority of State and local governments to
regulate motor carriers for noise emission purposes. A less radical
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approach considered was that after the effective date of the standards
for vehicles over 10,000 pounds GVWR/GCWR, the State or local govern-
ments could no longer take any action with respect to such vehicles,
whether it involved physical modification or simply control of use,
operation, or movement. This approach was represented by EPA's
discussion of preemption in the preamble to the final motor carrier
regulation (39 PR 38208). Though less consistent with the plain
language of section 18(c) than the approach now proposed, this
interpretation was deemed acceptable because of certain ambiguous
elements of the legislative history of the Act. After gaining exper-
ience with the practical aspects of controlling noise sources in
interstate commerce, and after reviewing the legislative history in
light of that experience, EPA believes that the intent of the Act is
best served by following the plain language of section 18(c).
Proposed Section 202.31 would provide that if a State or local reg-
ulation is not in the category of preempted regulations, it may be adopted
and enforced without EPA involvement. If a regulation is so preempted, it
will require EPA approval. Proposed section 202.33 contains provisions
concerning the filing and processing of applications, including a provi-
sion allowing the applicant or an affected interstate carrier to request
review of EPA's decision. The proposal also provides for consultation
between the EPA Administrator and the Secretary of Transportation as
required by the Noise Control Act.
As a supplement to the provisions proposed herein, the Agency
has prepared and will make available guidelines establishing detailed
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procedures to be followed by State and local governments in filing, and
by the Agency in processing applications for waiver of preemption. It is
important that State and local governments follow the requirements of and
utilize the guidance provided by the guidelines as well as the proposed
procedures in addressing any questions or issues concerning the preemptive
aspects of the EPA's Interstate Motor Carrier Noise Emission Regulation.
Included in such guidelines are procedural requirements as to where
applications must be filed and what information roust be included in
supporting statements necessary for the Administrator to make a deter-
mination. Also included are procedures which delineate the manner in
which the decision process will be conducted for all applications
submitted to the Agency. The determinations will be treated as informal
rule making, and interested parties will have the opportunity to partic-
ipate. The guidelines provide for publicaton in the Federal Register of
applications when received, allowance for a public comment period, and
publication of the final determination. The guidelines also contain pro-
visions concerning the Agency's processing of requests for review of final
determinations.
Under section 18(c)(2) of the Noise Control Act, the Administrator
may waive preemption in any case where he determines that the State or
local action is necessitated by special local conditions and is not in
conflict with the Federal regulations. This provision was intended to
allow flexibility to deal with situations where circumstances surrounding
the operations of motor carrier equipment and facilities within particular
communities result in essentially unique local health and welfare problems.
Proposed Section 202.34 gives guidance as to EPA's interpretation of this
provision of the Act. It defines in a general manner the kinds of factors
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which EPA will consider as evidence of a special local condition, and it
explains how the Administrator will assess the degree of conflict between
the State or local action and the Federal regulations. Finally, it provides
that the Administrator will balance these factors against one another taking
into account the availability of reasonable alternative means of solving the
special local noise problem. Because every community is different, each will
present a different set of factors for the Adminstrator to consider. Thus, it
is not possible to develop an exhaustive list of actions he would or would not
approve. However, the general rules proposed in section 202.34 are expected to
be sufficient guidance to State and local governments as to the limits of the
Administrator's authority under section 18(c)(2) of the Act.
The Administrator's grant of an application for waiver of preemption
is somewhat limited; it represents an administrative action with the effect
that the provisions of Section 18 of the Noise Control Act will no longer be
a legal basis upon which to challenge the State or local agency's authority
to adopt or enforce the regulation. The Administrator does not believe
that this finding represents an approval of the proposed State or local
law, or that it affects in any way any other requirements which that
standard must meet. Specifically, the Administrator's waiver of preemption
with respect to a proposed law or rule does not mean that it may contravene
other standards established by law, for example those related to safety;
nor, as limited by the Commerce Clause of the U.S. Constitution, may it impose
«
an undue burden on interstate commerce, although some of the factors relevant
to that test will already have been determined by the Administrator in assessing
conflict with Federal regulations. State and local agencies are encouraged to
carefully consider these matters during the development of such proposals.
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It is the Agency's intention that the guidance provided State
and local governments by the proposed procedures and the supplemental
guidelines, when finalized, be augmented where necessary by consultation
with the EPA Regional Offices. State and local governments are, therefore,
encouraged to freely communicate their questions and concerns on all
matters related to prospective applications for preemption waiver deter-
minations, or otherwise concerning the preemptive aspects of the EPA's
Interstate Railroad Noise Regulation, to the appropriate EPA Regional
Office. This consultation will help ensure that applications for determin-
ations are submitted properly and only when necessary, and will aid in the
effective solution of State and local noise problems in the most expedi-
tious manner.
Interested persons are invited to participate in the development
of these proposed regulations by submitting their written data, views,
and arguments. Communications should identify the regulatory docket-
number and be submitted with five copies to: Director, Standards and
Regulations Division, Office of Noise Abatement and Control (AW-471),
AV
Attention: Docket No.: 76-l>, U.S. Environmental Protection Agency,
Washington, D. C. 20460. To assure that all comments receive adequate
consideration, they should reach the Agency no later than 45 days after
the date of this notice.
These amendments are proposed under the authority of 42 U.S.C.
section 4916(c) and 5 U.S.C. section 552(a)(1)(C), (D).
Dated John R. Quarles, Jr.
Acting Administrator
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It is proposed to amend 40 CFR Part 202 by adding the following
subpart:
Subpart C - State and Local Authority
S202.30 Definitions
S202.31 General Rules
S202.32 Preemption
S202.33 Filing and Processing of Applications
S202.34 Basis for Determinations
202.30 Definitions
(a) Administrator
As used in this subpart, the term Administrator shall refer to
the Administrator of the Environmental Protection Agency or any person
who performs any act on his behalf.
(b) Federally Regulated Equipment
Any piece of equipment of an interstate motor carrier to which a
standard is in effect under 40 CFR Part 202, including any item which
is an integral element or component of such equipment and any item whose
interaction contributes to the noise measured when operating under the
conditions specified in such regulations for compliance measurement.
Included among such items are refrigeration units. Items excluded from the
applicability of the Federal standards by 40 CFR Section 202.12 are not
Federally regulated equipment.
(c) Non-Federally Regulated Equipment
Any piece of equipment of an interstate motor carrier which is
not Federally regulated equipment as defined in Section 202.30(b).
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(d) Design or Equipment Standards
Those actions taken by States or political subdivisions thereof
which expressly require for the purpose of noise control the installation
of sound attenuation equipment or other hardware, or the implementation
of design changes, in addition to or more stringent than those necessary
for equipment or facilities to meet the Federal standards.
(e) General Environmental Noise Standards
Those actions taken by States or political subdivisions thereof
which establish allowable ambient noise levels or receiving land use
noise level standards which focus on the identity of the land receiving
the sound rather than the identity of noise sources.
(f) Use, Operation, or Movement Controls
Those actions taken by States or political subdivisions thereof
which attempt to regulate the time, manner, nature, or frequency of
the operation of particular equipment or facilities of interstate
motor carriers for the purpose of noise control.
(g) Action which effectively requires physical modification of
Federally-regulated equipment or facilities
Any action imposing a requirement such that compliance can be
achieved by physical modification of Federally-regulated equipment
or facilities, and no reasonable alternative exists which does not
involve physical modification of Federally-regulated equipment or
facilities.
(h) Physical modification of Federally regulated equipment or
facilities.
Physical modifications in addition to or more extensive than those
necessary for the equipment or facilities to meet the Federal standards.
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(i) Agency Guidelines on the Filing and Processing of
Applications
Procedural guidelines prepared and published by the EPA as a
supplement to the provisions of this subpart which establish the
procedures to be followed by State and local governments in filing,
and by the EPA in processing applications for waiver of preemption
under Section 18(c)(2) of the Noise Control Act of 1972.
202.31 General Rules
(a) No State or local government shall adopt or enforce any
regulation which is preempted, according to the rules in Section 202.32,
unless an application has been submitted to the EPA in the manner pre-
scribed in Sections 202.33(a) and (b) and in the Agency's guidelines on the
filing and processing of applications; and a final determination approving
such application in whole or in part under Section 202.33(c) or Section
202.33(d) has become effective.
(b) Any regulation which is not preempted under Section 202.32
may be adopted and enforced without EPA approval.
(c) The State and local government shall itself, or through
consultation with the appropriate EPA Regional Office, decide whether
a regulation which it proposes to adopt or enforce is preempted under
Section 202.32.
(d) Where the Agency finds that EPA approval is not required because
an application relates to a regulation which is not preempted, such decision
will not constitute EPA approval or disapproval of the proposed State or
local regulation.
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fe) Any final determination under Section 202.33(c) or Section
202.33(d) may approve in part and disapprove in part the adoption
or enforcement of the regulation to which an application relates.
In any such case, that part of the regulation disapproved may not
be adopted or enforced.
(f) Any final determination approving the adoption or enforce-
ment of a regulation, or any part thereof, under Section 202.33(c) or
Section 202.33(d) will specify an effective date before which such
adoption or enforcement may not take place. The effective date of a final
determination under Section 202.33(c) will normally be 30 days from the date
of publication of such determination, or, if reviewed pursuant to Section
202.33(d), the date of issuance of final approval under Section 202.33(d),
whichever comes later.
202.32 Preemption
(a) The Federal interstate motor carrier noise emission
regulations under 40 CFR Part 202 preempt, after their effective dates,
the authority of States and political subdivisions thereof to adopt or
enforce any standard applicable to noise emissions resulting from the
same operation of motor carriers covered by such Federal regulations
unless such standard is identical to the Federal standard. Therefore,
before taking any such preempted action, as defined in (b) through (d)
of this section, States or political subdivisions thereof are required
to - _ain a determination by the Administrator of the EPA in accordance
with these provisions.
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(b) A State or local action shall be deemed to be a preempted
standard applicable to noise emissions resulting from same operation
of motor carriers covered by Federal regulations if, for the purpose
of noise control, it:
(1) Establishes a numerical noise emission limitation
on Federally regulated equipment or facilities
which is more stringent than the Federal standard
applicable to such equipment or facilities; or
(2) By its terms requires the physical modification
of Federally regulated equipment or facilities; or
(3) It is neither (1) nor (2) above, but it effectively
requires the physical modification of Federally
regulated equipment or facilities (as defined in
Section 202.30(g) and (h)).
(c) Preempted Actions as to Adoption or Enforcement. A
determination according to this subpart is required regarding the
adoption or enforcement of the following types of regulations which
are considered to be preempted:
(1) Regulations which establish noise emission standards for
Federally regulated equipment which are more stringent
than the Federal standards.
(2) Regulations which establish design or equipment standards
for Federally regulated equipment.
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(3) Regulations establishing use, operation, or movement
controls on Federally regulated equipment for the purpose
of noise control which require the physical modification
of the Federally regulated equipment. Regulations
in this category include those which attempt to restrict
the use, operation, or movement of Federally regulated
equipment that emit more than a specified number of
decibels, or that are not equipped with mufflers or other
specified noise abatement equipment.
(4) Regulations establishing noise emission standards for
non-Federally regulated facilities of interstate motor
carriers which effectively require the physical
modification of Federally regulated equipment operating
within the facility.
(5) Regulations establishing use or operation controls
for non-Federally regulated facilities of interstate
motor carriers which effectively require the physical
modification of Federally regulated equipment operating
within the facility.
(d) Preempted Actions as to Enforcement only. A determination
according to this subpart is required with respect to regulations
establishing general environmental noise standards only at such time
as a State or political subdivision thereof proposes to enforce such
standards against interstate motor carriers, and only if compliance would
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effectively require the physical modification of Federally regulated
equipment or facilities.
(e) Nonpreempted Actions. A determination according to this subpart
is not required regarding the adoption or enforcement of the following
types of regulations which are considered to be not preempted:
(1) Regulations establishing noise emission standards which
are identical to the Federal noise emission standards for
interstate motor carriers.
(2) Regulations establishing noise emission standards for
Federally regulated equipment which are less stringent
than the Federal standards.
(i) Such less stringent regulations must ensure
that virtually each piece of equipment found
in violation of those regulations would if
tested be found in violation of the Federal
standards.
(ii) Such less stringent regulations can specify
testing conditions less rigorous than those
specified in the Federal regulations if the
level of the standard is relaxed so as to only
identify equipment which would violate the
Federal standards.
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(iii) Such less stringent regulations can be used
under less than ideal testing conditions to
identify "gross violations"; i.e., equipment
that violates the Federal standards by a
substantial amount.
(3) Regulations establishing use, operation, or movement
controls for Federally regulated equipment of interstate
motor carriers, compliance with which does not effectively
require physical modification of such Federally regulated
equipment.
(4) Regulations establishing the following for non-Federally
regulated equipment of interstate motor carriers:
(i) noise emission standards
(ii) use, operation or movement controls,
(iii) design or equipment standards.
(5) Regulations establishing noise emission standards for
non-Federally regulated facilities of interstate motor
carriers which do not effectively require the physical
modification of Federally regulated equipment operating
within the facility.
(6) Regulations establishing use or operation controls on
non-Federally regulated facilities of interstate motor
carriers which do not effectively require the physical
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modification of Federally regulated equipment operating
within the facility.
(7) Regulations establishing design or equipment standards
for non-Federally regulated facilities of interstate
motor carriers. Examples of such regulations would
include regulations requiring installation of noise
barriers at certain locations around motor carrier
terminals, or installation of sound insulation in the
walls of motor carrier maintenance shops.
(8) Regulations establishing general environmental noise
level standards where either the operations of interstate
motor carriers are not among the noise sources causing a
violation of the regulation, or if such operations are
among the noise sources causing a violation, such
regulations do not effectively require the physical
modification of the Federally regulated equipment of
interstate motor carriers.
(9) Regulations establishing use controls which prohibit
or restrict the use of warning devices such as horns.
An example of such a control would be an ordinance which
prohibited the sounding of a truck horn except as a
necessary warning signal.
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(10) Regulations which impose use, operation or movement
controls on the equipment or facilities of interstate
motor carriers for purposes unrelated to noise
control. Examples of such regulations would be
ordinances which prohibit the transport of hazardous
freight within populous areas by interstate motor
carriers.
(11) Regulations used for identifying interstate motor
carrier equipment that is in probable violation of
Federal standards, provided that ultimate non-compliance
be based upon the failure to meet standards no more
stringent than those specified in Federal regulations.
Such regulations are sometimes called "screening tests"
and serve to identify probable violators of Federal
standards so that voluntary corrective action might
be taken without resort to a test according to
Federally authorized procedures, or so that probable
violators can be instructed to have a test performed
according to Federally authorized procedures with
compliance based on meeting standards either identical
to Federal standards, or otherwise approved under this
Subpart.
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202.33 Filing and Processing of Applications
(a) An application for a determination by the Administrator
approving the adoption or enforcement of a regulation which is
preempted according to Section 202.32 may be submitted only by a
State or local governmental office or agency which has the authority
to adopt or enforce such regulation.
(b) Each applicant shall have published in a newspaper of general
circulation within its jurisdiction, notice of its intent to file an
application with the EPA for a special local determination under this
Subpart.
(c) The Administrator after consultation with the Secretary of
Transportation or his delegate, will, within 180 days of the Agency's
receipt of an application, issue a final determination approving or
disapproving the application or any part thereof, and will publish such
determination in the Federal Register along with an explanation of the
basis for his determination. Subject to subsection (d), such determin-
ation will constitute final agency action on the application.
(d) Within 30 days after such publication, the applicant or any
affected interstate motor carrier may request that the Administrator
review the final determination published under subsection (c), upon
which such final determination may be either affirmed, overruled, or
held for further consideration.
202.34 Basis for Determinations
(a) The Administrator, after consultation with the Secretary of
Transportation or his delegate, will permit the adoption and enforcement
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of any preempted State or local regulation which he determines is
necessitated by special local conditions and is not in conflict with
the regulations in this Part.
(b) In making any determination under subsection (a) of this
section, the Administrator will balance the following factors:
(1) The nature and extent of the special local condition
upon which the application is based.
(2) The degree to which the State or local action would
conflict with the Federal regulatory scheme.
(3) The availability of solutions other than those
proposed which could provide the necessary relief
yet conflicting to a lesser degree with the Federal
regulatory scheme.
(c) In assessing the severity of the special local condition
upon which the application is based, the Administrator will consider
the degree to which denying the application would be inconsistent
with the policy of the Noise Control Act of providing an environment
free from noise that jeopardizes the public health and welfare.
(1) In general the Administrator will consider whether
there exist geographical, topographical or demographic
conditions which render Federal noise emission standards
inadequate to protect public health and welfare. Such
factors as the proximity of noise-sensitive populations
to noise sources, or conditions which increase either
the duration or intensity of noise will be considered
relevant.
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(2) In particular, the following are considered illustrative
examples of the kinds of conditions which may cause or
contribute to a special local condition:
(i) Steep upgrades or downgrades which cause
Federally regulated vehicles to operate
for sustained periods at or near full
throttle.
(ii) The location of hospitals, nursing homes,
retirement homes, or other institutions for
the recuperation of the sick or elderly
near a heavily used motor carrier facility,
highway, or truck route.
(iii) The location of large numbers of residential
structures near a heavily used motor carrier
facility, highway, or truck route.
(iv) The location of schools, churches, or other
educational facilities near a heavily used
motor carrier facility, highway, or truck
route.
(3) The following factors will be considered relevant but
not determinative in and of themselves as to the question
of the existence of a special local condition:
(i) Public concern for noise control.
(ii) Enactment of noise control regulations prior
to the promulgation of the Federal Motor
Carrier Noise Emission Standards.
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(d) In assessing the degree to which the State or local action
would conflict with the Federal regulatory scheme, the Administrator
will consider the degree to which granting the application would be
inconsistent with the policy of the Noise Control Act of providing
Federal standards for sources of noise in commerce which require
national uniformity of treatment. The following factors will be
considered relevant to assessing the degree of conflict with the
Federal regulatory scheme:
(1) The number of pieces of motor carrier equipment that
would be affected by the action.
(2) The degree to which equipment affected by the State
or local action operate in localities other than that
of the State or local government which proposed to
regulate them.
(3) Whether the State or local action would impose testing
requirements or procedures which are different from
those imposed by Federal regulations and which
constitute a significant burden on interstate motor
carriers.
(4) The degree to which the free flow of interstate
commerce would be impeded by compliance with the
State or local regulation.
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Guidelines for State and Local Governments on the
Filing and Processing of Applications for Preemption
Waiver Determinations under Section 18 (c)(2) of the
Noise Control Act of 1972
Section 1. Introduction
Section 2. Definitions
Section 3. Filinq of Applications
Section 4. Processing of Applications
Section 1. Introduction
These guidelines are to act as a supplement to the provisions of
Subpart C of 40 CFR 202, which contain the detailed delineation of the
United States Environmental Protection Agency's view of the preemptive
effect of the Interstate Motor Carrier Noise Emission Regulation and establish
the basis upon which determinations for waivers of preemption with respect
to that regulation will be made by the Agency.
The guidelines set out below contain the procedures to be followed
by State and local governments in filing, and by the EPA in processing
applications for waiver of preemption. Included are procedural require-
ments as to where applications must be filed and what information must
be included in supporting statements necessary for the Administrator
of the EPA to make a determination, as well as procedures delineating the
manner in which the decision process will be conducted for all applica-
tions submitted to the Agency.
It is important that State and local governments follow the require-
ments of and utilize the guidance provided by both these guidelines and
the procedures of Subpart C of 40 CFR 202 in addressing any questions or
issues associated with the preemptive aspects of the EPA's Interstate
Railroad Noise Emission Regulation.
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Section 2. Definitions
(a) The definitions of 40 CFR 202, Subpart C, Section 202.30 are
applicable to these guidelines.
(b) Deputy Assistant Administrator for Noise Abatement and Control.
An official of the Environmental Protection Agency designated by and
acting for the Administrator in making determinations under 40 CFR 202,
Subpart C.
(c) Assistant Administrator for Air and Waste Management.
An official of the Environmental Protection Agency designated by
and acting for the Administrator in making determinations under 40 CFR
202, Subpart C.
Section 3. Filing of Applications
(a) An application for a determination by the Administrator
approving the adoption or enforcement of a regulation which is
preempted according to 40 CFR 202, Subpart C, Section 202.32 may be
submitted only by any State or local governmental office or agency which
has the authority to adopt or enforce such regulation.
(b) All requests, applications, submittals and other communi-
cations to the Administrator pursuant to the procedures of 40 CFR 202,
Subpart C shall be submitted and addressed to the appropriate Regional
Office of the Environmental Protection Agency. All such correspondence
shall be filed in triplicate.
Addresses for all EPA Regional Offices are:
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U. S. EPA Regional Administrator
Attention: Noise Office, Special Local Determinations
(1) Region I, Environmental Protection Agency, Room 2303,
John F. Kennedy Federal Building, Boston, Massachusetts
02203. (Connecticut, Maine, Massachusetts, New Hampshire,
Rhode Island and Vermont).
(2) Region II, Environmental Protection Agency, Room 847,
26 Federal Plaza, New York, New York 10007. (New
Jersey, New York, Puerto Rico, and the Virgin Islands).
(3) Region III, Environmental Protection Agency, Curtis
Building, Sixth and Walnut Street, Philadelphia,
Pennsylvania 19106. (Delaware, Maryland, Pennsylvania,
Virginia, West Virginia, and the District of Columbia).
(4) Region IV, Environmental Protection Agency, Suite
300, 1421 Peachtree Street, N. E., Atlanta, Georgia
30309. (Alabama, Florida, Georgia, Kentucky, Missis-
sippi, North Carolina, South Carolina, and Tennessee).
(5) Region V, Environmental Protection Agency, One North
Wacker Drive, Chicago, Illinois 60606. (Illinois,
Indiana, Michigan, Minnesota, Ohio, and Wisconsin).
(6) Region VI, Environmental Protection Agency, Room 1125,
1600 Patterson Street, Dallas, Texas 75201. (Arkansas,
Louisiana, New Mexico, Oklahoma, and Texas).
(7) Region VII, Environmental Protection Agency, 1735
Baltimore Avenue, Kansas City, Missouri 64108.
(Iowa, Kansas, Missouri, and Nebraska).
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(8) Region VIII, Environmental Protection Agency, Lincoln
Tower, 1860 Lincoln Street, Denver, Colorado 80203.
(Colorado, Montana, North Dakota, South Dakota, Utah,
and Wyoming).
(9) Region IX, Environmental Protection Agency, 100 California
Street, San Francisco, California 94111. (Arizona,
California, Hawaii, Nevada, American Samoa, Guam, Trust
Territories of Pacific Islands, and Wake Island).
(10) Region X, Environmental Protection Agency, 1200 Sixth
Avenue, Seattle, Washington, 98101. (Alaska, Idaho,
Oregon, and Washington).
(c) Each application under 40 CFR 202, Subpart C shall include a
supporting statement designed to establish that the State or local
standard, control, license, regulation or restriction in question is
necessitated by special local conditions and is not in conflict with the
Federal interstate motor carrier noise emission regulations. The following
information shall be included in each supporting statement:
(1) The name and address of the state or local
government agency or office making the
request; the name of the official heading that
agency or office; and the name, address,
and phone number of the principal contact person
regarding the request.
(2) The complete text of the regulation sought to
be established or enforced.
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(3) Information to permit the Agency to fully
assess the nature of the local noise problem
which the State or local regulation is attempting
to solve. Information which applicants are
encouraged to provide includes the following:
(i) A detailed description of the
geographical area for which a deter-
mination is being requested. Included
should be an accurate, up-to-date map
indicating the boundaries of the area
concerned, and capable of reasonably
accurate scaling for the determination
of distances; identification of the
positions or boundaries of all
affected noise sources and any land
areas or locations for which
classification as noise receivers
is appropriate relative to the
request; a description of the
approximate heights of buildings,
walls, barriers, or embankments
adjacent to identified noise sources
or receivers; and a description of any
unusual topographical or climatological
conditions which render the area concerned
more or less sensitive to noise.
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(ii) A detailed description of the
applicable zoning laws of the area
concerned, including zoning exceptions
whose identification is appropriate
relative to the request, either as
noise sources or receivers.
(iii) A detailed description, within
the area concerned, of the population
impacted by the affected motor carrier
noise sources during both daytime
(7am - 10pm) and nighttime (10pm - 7am)
hours. Included shall be the size and
approximate distribution of such impacted
population and the nature of the associated
land use, such as residential, commercial,
industrial, or recreational.
(4) A detailed statement of the nature and extent
of the special local condition which is alleged
to necessitate the adoption or enforcement of the
State or local regulation. This should include
references to information submitted under paragraph
(3) of this subsection.
(5) Information to provide the Agency with a full
understanding of the type of motor carrier equipment
and/or facilities to which the regulation would
apply and the nature of the motor carrier operations
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involved. Information which applicants are
encouraged to provide includes the following, as
appropriate:
(i) The nature and frequency of the
operations of interstate motor carrier
vehicles over 10,000 Ibs. CVWI^GCWR
affected by the local regulation, and
the times of day at which such operations
occur, such as: the volume flow of both
Federally regulated vehicles and non-
Federally regulated vehicles (vehicles/day)
as a function of the time of day, and
for the noisiest hour (vehicle/hr.);
the average speed and mode of operation
(cruise, accelerate, decelerate) of both
the Federally regulated and non-Federally
regulated vehicles.
(ii) The nature and frequency of the
operations of motor carrier facilities
affected and the times of day at which
such operations occur, such as: the
number and type of vehicles and type
of operations taking place within affected
facilities and the time of day at which
such operations occur; in particular,
whether auxiliary equipment on motor
carrier vehicles, such as refrigeration
units, are affected.
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(6) A description of alternative means of compliance
available to affected interstate motor carriers; including
information as to the technical availability of and
the costs associated with each alternative means; and
detailed data indicating to what extent each alternative
means will achieve compliance with the local regulation.
Where an alternative me,ans of compliance involves an
operator-oriented requirement, a description must be
included describing how an operator of regulated equip-
ment can be expected to know what mode of operation will
satisfy the requirement.
(7) Information or data indicating to what extent full
compliance with the local regulation either necessarily
or optionally involves the abatement of noise from
sources other than interstate motor carrier equipment
or facilities.
(8) A description of any alternative means of solving
the local noise problem available to the
jurisdiction making the application which do not
involve the noise abatement of Federally regulated
equipment or facilities, and a discussion of the
reasons why these means are inadequate or imprac-
tical.
(9) A one page summary of the particular application
which the EPA can publish in the Federal Register
according to Section 4(c) of these guidelines.
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Such summary shall include a description of: (1)
the regulation sought to be established or enforced,
(2) the particular local noise problem requiring
action, and (3) the motor carrier equipment, facil-
ities, and operations to which the regulation would
be applicable.
(10) Other suggested information which applicants
are encouraged to provide includes the following:
(i) Information as to the number and
nature of recorded complaints received
from the population within the area
concerned relative to noise generated
by affected motor carrier equipment
or facilities.
(ii) A description of the benefits
expected to result from compliance
with the State or local regulation.
This information should include the
number of people whose exposure to
noise is expected to be reduced with
such exposure expressed in terms of
equivalent sound levels (Leq), day-
night equivalent sound levels (Ldn),
or some other generally accepted means
of measuring population exposure to
noise; and the degree of such reduction
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relative to the approximate distribution
of the benefitted population throughout
the area concerned. Other benefits to
the health and welfare of the impacted
population may also be presented.
(d) Information and data presented in the supporting statement(s)
shall be referenced by giving the source from or procedure by which such
information or data was derived. All noise measurements shall include a
description of the methodology used in obtaining such measurements.
(e) Each supporting statement shall include a certification as to
the accuracy and validity of its contents and shall be signed by the
official who heads the State or local agency or office submitting the
application.
(f) With each application the applicant shall provide the Agency
with evidence that it has published in a newspaper of general circulation
within its jurisdiction,notice of its intent to file an application with
the EPA for a special local determination under 40 CFR 202, Subpart C.
»
Such notice shall include a description of: (1) the regulation sought
to be established or enforced, (2) the particular local noise problem
requiring action, and (3) the motor carrier equipment, facilities, or opera-
tions to which the regulation would be applicable.
Section 4. Processing of Applications
(a) The Regional Administrator with whom applications are filed
will review each application and will return any application which lacks
any information required by Section 3. The Regional Administrator will
also consult informally with the corresponding regional office of the
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Department of Transportation and the applicant to assure wherever
necessary that other related transportation regulations concerning
safety or the routing of hazardous materials have been properly consi-
dered. The Regional Administrator will forward to the Deputy Assistant
Administrator for Noise Abatement and Control all applications which
he adjudges to contain the required information under Section 3. In
addition, where he deems appropriate, the Regional Administrator may
also prepare and forward recommended determinations concerning individual
applications.
(b) The Deputy Assistant Administrator for Noise Abatement
and Control will upon receipt of an application make an initial
decision as to whether the proposed State or local action is
preempted according to 40 CFR 202, Subpart C, Section 202.32.
(1) The procedures in subsections (c) - (f) of this
section will be followed with respect to any
application which is determined by the Deputy
Assistant Administrator to relate to the
adoption or enforcement of a preempted
regulation
(2) The Deputy Assistant Administrator will
return to the applicant any application
which by his determination relates to
a regulation which is not preempted,
and will take no further action on
such application.
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(c) The EPA will publish in the Federal Register each
application which is determined by the Deputy Assistant Administrator
to relate to the adoption or enforcement of a preempted regulation.
(d) Following publication of each application under sub-
section (c) of this section, interested persons»will be given an
opportunity to file written comments for a period of not less than 30
days as to whether the Administrator should approve or disapprove such
application.
(e) As soon as practicable after the close of the period allowed
for comments under subsection (d) of this section, the Deputy Assistant
Administrator will consider the comments received and consult with the
Secretary of Transportation or his delegate.
(f) The Deputy Assistant Administrator, after consultation with
the Secretary of Transportation or his delegate, will, within 180 days
of the Agency's receipt of an application, issue a final determination
approving or disapproving the application or any part thereof, and
will publish such determination in the Federal Register along with an
explanation of the basis for his determination. Subject to subsection
(g), such determination will constitute final agency action on the
application.
(g) The applicant or any affected interstate motor carrier
may request that the Assistant Administrator for Air and Waste
Management review the final determination of the Deputy Assistant
Administrator published under subsection (f).
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(1) Any such request must be filed in writing and
must be received by the Assistant Administrator
for Air and Waste Management within 30 days after
publication of the notice in the Federal Register
under subsection (f).
(2) After receipt of a request for review, which was sub-
mitted in a timely manner,the Assistant Administrator
for Air and Waste Management will consult informally
with the Secretary of Transportation or his delegate
and will either affirm the decision of the Deputy
Assistant Administrator, or overrule such decision,
or refer the matter back to the Deputy Assistant
Administrator for further consideration.
(3) Any determination of the Deputy Assistant
Administrator after reconsideration under
paragraph (g)(2) will be subject to the notice
requirement of subsection (f) and the right
of appeal under subsection (g).
(4) Any decision by the Assistant Administrator
affirming or overruling a determination of the
Deputy Assistant Administrator will constitute
final agency action on the application.
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