United States              Air and Radiation          EPA 420-F-97-Q08
                   Environmental Protection                           February 1997

                   Office of Mobile Sources
4ģEPA       Environmental
                   Fact Sheet
                   Federal Preemption of State
                   and Local Control of  Locomotives
                   The Environmental Protection Agency (EPA) is proposing regulations to
                   implement section 209(e) of the Clean Air Act (CAA), which prohibits
                   certain state and local controls for locomotives. These regulations are
                   being proposed in conjunction with new emission standards for locomotives
                   and locomotive engines, which are being proposed under section 213 of
                   the CAA.
                  Clean Air Act Preemption Requirements

                  In section 209(e) of the CAA. Congress preempted state and local govern-
                  ments from adopting or enforcing "any standard or other requirement relat-
                  ing to the control of emissions from ...new locomotives or new engines used
                  in locomotives."  (Given the nature of locomotive remanufacturing, EPA is
                  defining "new locomotives and new engines used in locomotives" to include
                  existing locomotives when they are remanufactured.) EPA is proposing
                  regulations that would implement this preemption consistent with Congres-
                  sional intent to prevent unreasonable burdens on interstate commerce.
                  Prohibited Controls
                  The proposed regulations would prohibit state and local governments from
                  adopting or enforcing any controls that significantly affect a locomotive
                  manufacturer's or remanufacturer's design. EPA also is proposing to define
                  by regulation a period during which state and local governments would be
                                                                   i Printed on Recycled Paper

explicitly prohibited from adopting three categories of controls that EPA has
determined would affect a manufacturer's or remanufacturer's design: 1)
emission standards (and related requirements), 2) non-federal in-use testing
programs, and 3) emission control retrofit requirements. This period would
be equivalent to 1.25 times useful life, where useful life is the average
period during which a locomotive is operated before it is remanufactured
(typically about 6 years). Locomotives would also be required to be in
compliance with the federal emission standards throughout the useful life.
Comparison to Other Mobile Sources

The preemption being proposed is based on the same principles applied to
other mobile sources. Most significantly, this preemption is based on a U.S.
District Court decision (Allway Taxi Inc. v. City of New York) that stated
that state controls on emissions of non-new motor vehicles are preempted by
the Clean Air Act if those controls have an effect on manufacturers of new
motor vehicles. Since the Clean Air Act preemption provisions for nonroad
vehicles and engines, are similar to these for motor vehicles, EPA has consis-
tently applied this principle to other nonroad sources, although the applica-
tion of this principle varies somewhat from industry to industry.  The pro-
posed regulations for locomotives do differ significantly from previous
regulations dealing with preemption in that they include a codification of the
principle outlined in the Allway court case (i.e., the explicit preemption
period for certain types of controls). This was done to provide more cer-
tainty to all parties involved, and because unique features of locomotives
and railroads made it appropriate.
Environmental Impacts of Preemption
The proposed preemption regulations would not have any adverse impacts
on the environment because of EPA's proposed aggressive control program
that is designed to achieve the maximum possible environmental benefits.
EPA is proposing emission standards that will apply both when a locomotive
or locomotive engine is originally manufactured and each time that it is
remanufactured. The new standards will achieve a two-third reduction in
NOx emissions. Standards are also being proposed that will ultimately
reduce locomotive hydrocarbon and paniculate emissions in half. EPA is
proposing an extensive compliance program, including in-use testing, to
ensure that the projected emission reductions are achieved.  Without pre-
emption, on the other hand, there is more of a potential for some shift of
freight traffic to more polluting forms of transportation that could occur if

the costs of rail transportation increased significantly due to a patchwork of
state and local regulations.  (For example, transport by rail causes about
one-third of the pollution as transport by truck per ton-mile of freight.)
Benefits of a Strong Federal Program

Given the inherent interstate nature of the railroad industry, EPA believes
that a strong federal program that addresses manufacturing, remanufactunng
and in-use compliance can best achieve the necessary emissions reductions.
This is especially true since many state governments lack the resources to
control emissions from locomotives.  Since EPA is proposing such a strong
federal program, there would be little that any state could do to further
reduce locomotive emissions. Also, a patchwork of state and local regula-
tions would be inefficient, and could hinder EPA's ability to implement a
uniform national control program.
For More Information
Information on the proposed rule for locomotive standards is available
electronically via the EPA Internet server via the dial-up modem on the
Technology Transfer Network (TTN), an electronic bulletin board system

       World Wide Web:hhtp//www.epa.gov/OMSWWW

       TTN BBS: 919-541-5384 (1200-1440 bps, no parity. 8 data bits.  1
       stop bit); voice helpline 919-541-5384.

For further information on the proposed rule, please write to:

       U.S. Environmental Protection Agency
       Engine Programs and Compliance  Division
       2565 Plymouth Road
       Ann Arbor, MI 48105

or call: (313) 668-4333