United States Air and Radiation EPA420-F-97-050
Environmental Protection December 1997
Agency
Office of Mobile Sources
&EPA Regulatory
Announcement
Federal Preemption of State and
Local Control of Locomotives
The Environmental Protection Agency (EPA) has established
regulations to implement section 209(e) of the Clean Air Act (CAA),
which prohibits certain state and local controls for locomotives. These
regulations were developed in conjunction with new emission
standards for locomotives and locomotive engines, which were
established under section 213 of the CAA.
Clean Air Act Preemption Requirements
In section 209(e) of the CAA, Congress preempted state and local
governments from adopting or enforcing "any standard or other require-
ment relating 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 has established regulations that implement this
preemption consistent with Congressional intent to prevent unreasonable
burdens on interstate commerce.
Prohibited Controls
The regulations 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 defining by
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regulation a period during which state and local governments are explic-
itly 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 is equivalent to 1.33 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 are also required
to be in compliance with the federal emission standards throughout the
useful life.
Comparison to Other Mobile Sources
The preemption regulations are 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)1 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 preemp-
tion provisions for nonroad vehicles and engines are similar to those for
motor vehicles, EPA has consistently applied this principle to other
nonroad sources, although the application of this principle varies some-
what from industry to industry. These 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 con-
trols). This was done to provide more certainty to all parties involved,
and because unique features of locomotives and railroads made it appro-
priate.
Environmental Impacts of Preemption
The preemption regulations will not have any adverse impacts on the
environment because of EPAs aggressive control program that is de-
signed to achieve the maximum possible environmental benefits. EPA
has established emission standards that will apply both when a locomo-
tive or locomotive engine is originally manufactured and each time that
it is remanufactured. The new standards will achieve a two-third reduc-
tion in oxides of nitrogen emissions. Standards were also adopted that
will ultimately reduce locomotive hydrocarbon and particulate emissions
in half. EPA has established an extensive compliance program, including
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in-use testing, to ensure that the projected emission reductions are
achieved. Without preemption, 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,
remanufacturing and in-use compliance best achieves the necessary
emissions reductions. This is especially true since many state govern-
ments lack the resources to control emissions from locomotives. Since
EPA has established such a strong federal program, there is little that any
state could do to further reduce locomotive emissions. Also, a patchwork
of state and local regulations would be inefficient, and could hinder
EPAs ability to implement a uniform national control program.
For More Information
The final rule and other documents on locomotives are available elec-
tronically from the EPA Internet server at:
hhtp://www. epa.gov/OMSWWW/locomotv.htm
Document information is also available by contacting Russ Banush at:
U.S. Environmental Protection Agency
2565 Plymouth Road
Ann Arbor, MI 48105
(734) 668-4333
1 Allway Taxi, Inc. v. City of New York, 340 F.Supp.1120 (S.D.N.Y), aff'd 468
F.2d. 624 (2d. Cir. 1972).
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