Revisions to Preemption Regulations for Locomotives and Locomotive Engines Response to Comments


Revisions to Preemption Regulations for
Locomotives and Locomotive Engines

Response to Comments

SEPA

United States
Environmental Protection
Agency

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Revisions to Preemption Regulations for
Locomotives and Locomotive Engines

Response to Comments

Compliance Division
and

Assessment and Standards Division

Office of Transportation and Air Quality
U.S. Environmental Protection Agency

4>EPA

United States
Environmental Protection
Agency

EPA-420-R-23-032
November 2023

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Table of Contents

List of Commenters Included Verbatim in This Document	iii

1	Introduction	4

2	General Support	5

3	Critical Comments	29

3.1	Small Business Concerns	29

3.2	Concerns regarding the status of state-level controls	32

4	Miscellaneous Comments Unrelated to Preemption	46

Appendix A: Other Comments Received, Not Reproduced Verbatim in Text	84

Appendix B: List of Testifiers at Public Hearings	85

li

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List of Commenters Included Verbatim in This Document

Organization	

Allergy & Asthma Network et al.	

American Free Enterprise Chamber of Commerce

American Short Line and Regional Railroad Association	

American Soybean Association	

American Thoracic Society	

Association of American Railroads	

California Air Resources Board	

District of Columbia Department of Energy and the Environment
Environmental Defense Fund
Evergreen Action

International Council on Clean Transportation	

Moving Forward Network et al.	

National Association of Clean Air Agencies	

Northeast States for Coordinated Air Use Management	

South Coast Air Quality Management District	

State of California et al.	

Westinghouse Air Brake Technologies Corporation	

111

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1 Introduction

EPA's Proposed Rule: Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles -
Phase 3 was signed by Administrator Michael Regan on April 11, 2023. A pre-publication
version of the proposal was made available on EPA's website on April 12, 2023, after
Administrator Regan's announcement of the program but prior to publication of the proposal in
the Federal Register on April 27, 2023 (88 FR 25926 et seq.). The proposal indicated that the
rule would be open for public comment until June 16, 2023. The Docket ID No. for the rule is
EPA-HQ-OAR-2022-0985.

As part of that proposed rule, EPA also proposed revisions to our locomotive preemption
regulations at 40 CFRpart 1074. The locomotive preemption proposal shares a docket ID number
with the Heavy-Duty Phase 3 proposal. We have decided to finalize this locomotive preemption
portion of the proposal as a separate final rule. This Response to Comments (RtC) document is a
compilation of public comments submitted to the public docket pertaining to the locomotive
preemption portion of this rulemaking action, along with EPA's responses to those comments.
Some aspects of our responses appear in the preamble to the separate locomotive preemption
final rule. This RtC document is organized by category of comment topic. The original
documents submitted by commenters, including any attachments, footnotes, tables, and figures
are included in the docket.

Twenty written comments were submitted to the public docket related to the locomotive
preemption portion of EPA's proposal. Most of these comments generally express support for the
proposal, although some express concerns with its adoption. 17 of the comments provide specific
information and feedback about particular aspects of EPA's proposal or other implications of the
action and are reproduced verbatim in this RtC document. An alphabetical list of these commenters
can be found at the beginning of this document. The unique comments are organized by issue topic in
this document. The remaining unique comments are listed in Appendix A. These comments express
general support for the proposal but without detailed data, information, or comment relating to
specific provisions of the proposal or EPA's supporting analysis. The comments listed in Appendix
A are not reproduced verbatim in this document, as these comments did not raise issues with
reasonable specificity. EPA held a public hearing on the proposal, and the transcript of that hearing is
included in the docket.1 Appendix B contains a list of the testifiers.

The responses presented in this RtC document are intended to augment the rationale and
responses to comments that appear in the preamble to the final rule and to address comments not
discussed in the preamble to the final rule. To the extent there is any confusion or apparent
inconsistency between this RtC document and the preamble, the preamble itself remains the
definitive statement of the rationale for the final rule. This document and the preamble to the final
rule should be considered collectively as EPA's response to all of the significant comments
submitted on the locomotive preemption proposal.

1 See docket ID EPA-HQ-OAR-2022-0985-2666. During the 2-day public hearing (May 2 and 3, 2023), dozens of
individuals testified and 16 mentioned locomotive preemption.

4

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2 General Support

Comments by Organizations

Organization: American Thoracic Society (ATS)

ATS supports EPA's proposal to allow state and local regulation of diesel train engine
emissions. The ATS urges EPA to finalize and implement its proposal to allow states and
municipalities to regulate emissions from diesel train engines. For many communities, emissions
from train engines, particularly switcher engines, are a significant modifiable source of local air
pollution and GHG emissions. As noted in the proposed rule, current EPA regulations pre-empt
state and municipal governments from requiring the adoption of readily available emissions
control technology in non-new train engines. Because of the long-life cycle of train engines,
blocking states and municipal governments from requiring these available emissions reductions
places significant and long-term air pollution emissions burdens on local communities. The ATS
support EPA's proposal to rescind 40 CFR 1074.12 to give states and local governments the
option to seek readily available improvements in non-new train engine emissions while still
preserving EPA authority regarding emission from new and rebuilt train engines. [EPA-HQ-
OAR-2022-0985-1517-A1, pp. 4-5]

Organization: Allergy & Asthma Network et al.

EPA Should Finalize Locomotive Amendments

We appreciate EPA's proposal to correct course on preemption of locomotive regulations.
The proposed language would enable EPA's preemption regulations to more closely track to the
language in the Clean Air Act and avoid unintended impediments to state policy
development. [EPA-HQ-OAR-2022-0985-1532-A1, p. 4]

We support EPA's proposed updates to the current locomotive preemption language. We
believe this is a pragmatic approach that will continue to require EPA to judge the need for more
health-protective state policies through the waiver review process, but will not prohibit more
health-protective concept development by default. [EPA-HQ-OAR-2022-0985-1532-A1, p. 5]

Organization: California Air Resources Board (CARB)

Part III. Locomotive State Preemption Regulations

Affected pages: 26092-26096

A. Introduction

CARB staff submits these comments in support of the U.S. EPA proposed revisions to U.S.
EPA's Preemption Regulations for new locomotives and new engines used in locomotives
(Locomotive Preemption Regulations), contained within the NPRM on GHG Emissions
Standards for HDVs—Phase 3.223 This portion of the comment letter is limited to the portion of
the proposed rulemaking addressing revisions to the Locomotive Preemption
Regulations.224 [EPA-HQ-OAR-2022-0985-1591-A1, p.71]

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223 U.S. EPA's Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles—Phase 3, Proposed

Rules, 88 Fed. Reg., April 27, 2023, pages 26092-26096. (revising 40 CFR 1074.10, 1074.12, and

1074.101) (hereafter Notice of Proposed Rulemaking or "NPRM").

https://www.govinfo.gov/content/pkg/FR-2023-04-27/pdf/2023 -07955 .pdf

224 Ibid.

CARB staff urges U.S. EPA to adopt the proposed revisions to U.S. EPA's Locomotive
Preemption Regulations. Railroads continue to operate primarily older locomotives in California,
and those older locomotives are currently subject only to emission controls less stringent than
those currently applicable to new locomotives. CARB staff projects locomotive emissions will
become the predominant source of freight emissions in California this year and, due to their
proximity to disadvantaged communities, these emissions have a disproportionate impact on
overburdened areas. Further, reducing locomotive emissions will be critical to California
attaining National Ambient Air Quality Standards (NAAQS). [EPA-HQ-OAR-2022-0985-1591-
Al, p.72]

The current regulatory language has the potential to cause confusion and deter California—as
well as other states—from exercising its congressionally preserved authority to address the
problem caused by emissions from non-new locomotives and locomotive engines under the
CAA.225 The proposed revisions bring the Locomotive Preemption Regulations into clearer
alignment with the statutory language in the CAA. Therefore, U.S. EPA should adopt the
proposed revisions. [EPA-HQ-OAR-2022-0985-1591-A1, p.72]

225 This comment letter uses the term "non-new" to differentiate from "new," as used in the NPRM. See

NPRM at 26,092, fn. 1013.

3. Congress Preserved State Authority to Control Emissions from Non-New Locomotives

In the CAA, Congress expressly preserved California's authority to control emissions from
non-new locomotives and locomotive engines. The statute provides that states are prohibited
from enforce emission control as to "the following new nonroad engines or nonroad vehicles"
including "[n]ew locomotives or new engines used in locomotives."253 [EPA-HQ-OAR-2022-
0985-1591-A1, p.77]

253 42 U.S.C. § 7543(e)(1), (e)(1)(B) (italics added).

In the following subparagraph, the statute provides that U.S. EPA shall authorize California to
enforce emission controls for "any nonroad vehicles or engines other than those referred to" in
the preceding subparagraphs.254 Other states are permitted to adopt California's standards and
enforce them as state law, if they have received authorization from U.S. EPA.255 [EPA-HQ-
OAR-2022-0985-1591-A1, p.77]

254 Id., § 7543(e)(2)(A).

255 Id., § 7543(e)(2)(B).

Thus, Congress's intent with respect to the regulation of locomotive emissions is apparent on
the face of the statute: California and other states are preempted only from regulating emissions
from new locomotives, and the CAA expressly preserves California's and the other states'
authority to regulate emissions from non-new locomotives.256 [EPA-HQ-OAR-2022-0985-1591-
Al, p.77]

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256	See also Engine Mfrs. Ass'nv. U.S. E.P.A., 88 F.3d 1075, 1091 (D.C. Cir. 1996) (discussing

Congress's intent to protect California's ability to continue to develop nonroad emission standards).

C. Discussion

1. The Proposed Revisions to the Locomotive Preemption Regulations Are Warranted to
More Clearly Align with the CAA

U.S. EPA should adopt the proposed revisions to its Locomotive Preemption Regulations. As
U.S. EPA recognizes, the current regulatory text could be interpreted as "extending preemption
well beyond the CAA language."257 [EPA-HQ-OAR-2022-0985-1591-A1, p.78]

257	NPRM at 26,092

As the NPRM discusses, the Locomotive Preemption Regulations contain two parts. The first
part—subparagraph (a)—properly tracks the language of the CAA. It provides: "States and
localities are preempted from adopting or enforcing standards or other requirements relating to
the control of emissions from new locomotives and new engines used in locomotives."258 It is the
second part—subparagraph (b)—that has the potential to cause confusion and deter the proper
exercise of state authority under the CAA. This part purports to extend preemption to a period
equivalent to 133 percent of the useful life beginning at the point the locomotive or engine
becomes new.259 As U.S. EPA observes in the NPRM, the CAA does not provide any useful life
concept or other preemption period for nonroad vehicles and engines, and U.S. EPA has not
adopted any similar preemption provision for other nonroad vehicles and engines.260 [EPA-HQ-
OAR-2022-0985-1591-A1, p.80]

258	40 CFR § 1074.12(a).

259	Id., § 1074.12(b); NPRM at 26,092.

260	NPRM at 26,092, fn. 1012.

"[AJgencies have no special authority to pronounce on pre-emption absent delegation by
Congress."261 Congress specifically delimited the scope of preemption for locomotives and
locomotive engines and did not delegate authority to U.S. EPA to change it.262 Under section
209(e)(1), only U.S. EPA may adopt standards to control emissions from the new nonroad
vehicles and engines specified therein, which includes new locomotives and engines.263 States
are prohibited from adopting standards applying to such nonroad vehicles and engines.264 But
section 209(e)(2) specifically preserves California's authority to adopt standards applicable to
non-new locomotives and engines.265 Congress required U.S. EPA to authorize California
emission regulations for all other nonroad vehicles and engines, unless U.S. EPA could make
one of three factual findings.266 [EPA-HQ-OAR-2022-0985-1591-A1, p.78]

261	Wyethv. Levine, 555 U.S. 555, 577 (2009); see also Louisiana Pub. Serv. Comm'nv. FCC, 476 U.S.

355, 357 (1986) ("[A]n agency literally has no power to act, let alone pre-empt the validly enacted

legislation of a sovereign State, unless and until Congress confers power upon it.").

262	42 U.S.C. § 7543(e).

263	Id., §§ 7543(e)(1), 7547(a)(5).

264	Id., § 7543(e)(1).

265	Id., § 7543(e)(2).

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266	Id., § 7543(e)(2)(A).

Section 209(e) does not delegate U.S. EPA authority to alter the scope of preemption or the
sources to which it applies. To the contrary, Congress chose to establish a waiver process
mirroring the one applicable to motor vehicles in Section 209(b)(1) under which U.S. EPA
routinely grants waivers, as directed in the statute.267 Nor does the direction to U.S. EPA
contained in Section 209(e) to "issue regulations to implement this subsection" provide U.S.
EPA with authority to expand the scope of categorical preemption Congress itself defined.268 The
text provides no indication that "Congress intended [EPA] regulations ... to displace state
law[s]" other than those Congress itself expressly chose to displace through the CAA.269 Indeed,
where Congress intends to authorize U.S. EPA to categorically preempt state law under the
CAA, it says so in no uncertain terms.270 The direction to "implement" the categorical
preemption decisions Congress already made bears no resemblance to such provisions and, does
not authorize U.S. EPA to change the scope of categorical preemption.271 [EPA-HQ-OAR-2022-
0985-1591-A1, p.79]

267	Id., § 7543(b)(1).

268	Id., § 7543(e) (final sentence).

269	See Louisiana Pub. Serv. Comm'n, 476 U.S. at 357.

270	E.g., 42 U.S.C. § 7545(c)(4)(A).

271	See Nat. Res. Def. Council v. E.P.A., 777 F.3d 456, 473 (D.C. Cir. 2014) (vacating EPA
implementation regulations based on exceeding and conflicting with the CAA); see also S.E.C. v. Sloan,
436 U.S. 103, 118 (1978) (courts reject agency interpretations that are inconsistent with the statute or
frustrate congressional policy underlying the statute); Ry. Lab. Executives' Ass'n v. Nat'l Mediation Bd.,
29 F.3d 655, 670 (D.C. Cir. 1994) (agency's power is no greater than that delegated to it by Congress);
Callan v. G.D. Searle & Co., 709 F. Supp. 662, 668 (D. Md. 1989) (finding implementing regulations that
exceed scope of preemption set forth in statute contradicts Congressional intent and is not based on a
permissible construction of the statute).

U.S. EPA is correct to be concerned that its existing Locomotive Preemption Regulations
could be read as extending preemption beyond the CAA.272 Because U.S. EPA has no authority
to extend categorical preemption beyond the scope Congress expressly delineated, U.S. EPA's
NPRM to clarify that it has not done so is entirely appropriate. As U.S. EPA correctly observes,
the text of Section 209(e)(2)(A) clearly anticipates U.S. EPA making factual findings on a record
that includes public comment, not pre-determining that certain regulations are categorically
preempted.273 As part of that process, U.S. EPA may evaluate on a "case-by-case basis" whether
it believes a given California law impermissibly regulates new locomotives or new engines.274
U.S. EPA's proposed revisions to its regulations properly return to that approach as Congress
intended. [EPA-HQ-OAR-2022-0985-1591-A1, p.79]

272	NPRM at 26,092.

273	Id. at 26,095; see also 42 U.S.C. § 7543(e)(2)(A).

274	NPRM at 26,095.

2. There Is No "Public Benefit" to Retaining the Current Regulatory Text; Retaining the Text
Would Be Detrimental

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U.S. EPA has asked for comments on "to what extent there would be public benefit if [it]
were to retain the current regulatory text."275 CARB staff does not believe there is any public
benefit to retaining the existing text. At best, the text creates confusion; at worst, it creates an
obstacle to state regulations Congress intended to permit. In either case, there is no benefit to
keeping it, and the public is best served by U.S. EPA clarifying that is has no authority to expand
the scope of categorical preemption and will, thus, consider whether a California regulation is
preempted on a case-by-case basis as Congress intended. [EPA-HQ-OAR-2022-0985-1591-A1,
P-80]

275 Ibid.

CARB staff agrees with U.S. EPA that there are potential state regulations that plainly
regulate non-new locomotives but that some might claim are categorically preempted
(i.e., ineligible for Section 209(e)(2)(A) authorization) by U.S. EPA's existing regulation.276 U.S.
EPA's two examples are far from exhaustive, but they illustrate the need to clarify that U.S. EPA
cannot, and has not, extended the scope of categorical preemption beyond Congress's express
design. Again, Congress expressly chose to preserve space for state regulation of non-new
locomotive emissions. The finalization of the proposed regulatory changes will ensure that space
remains available to states as Congress intended. That is in the public interest. [EPA-HQ-OAR-
2022-0985-1591-A1, p.80]

276 NPRM at 26,095.

As explained above, it is critical for California to retain its congressionally preserved
authority to regulate emissions from non-new locomotives. Locomotives make a significant
contribution to harmful pollution, especially in communities already overburdened, and present a
real obstacle to NAAQS attainment.277 [EPA-HQ-OAR-2022-0985-1591-A1, p.80]

277 See, supra, §§ II.A., B.

D. Conclusion

For all of the reasons stated above, CARB staff respectfully requests that U.S. EPA finalize
the proposed revisions to its Locomotive Preemption Regulations. [EPA-HQ-OAR-2022-0985-
1591-A1, p.80]

Organization: Environmental Defense Fund (EPF)

VIII. EDF supports EPA's proposal to revise the locomotive preemption regulations

The Proposal includes a proposed change to EPA's regulations that interpret the scope of
preemption under CAA section 209(e)(1)(B), which precludes state or local "standard[s] or other
requirements] relating to the control of emissions from ... [n]ew locomotives or new engines
used in locomotives." 42 U.S.C. § 7543(e)(1)(B); see 88 Fed. Reg. at 26,092-96. Specifically,
EPA proposes to eliminate a longstanding regulation, 40 C.F.R. § 1074.12(b), that specifies a
"preemption period" equivalent to 133% of the useful life of a new locomotive and that
enumerates examples of preempted requirements. See id. As discussed below, we strongly
support the proposed change, which would align EPA's regulations with the text of the Clean Air
Act and reflect the proper scope of state and local authority to regulate non-new locomotives.
EDF has separately joined comments to this docket from the Moving Forward Network and

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allied organizations, which likewise support EPA's proposed change to the preemption
regulations. [EPA-HQ-OAR-2022-0985-1644-A1, p. 93]

Although EPA has regulated emissions from new locomotives and engines since 1998, the
agency recognizes that "[ljocomotives remain a significant source of emissions, often
disproportionately impacting the health of communities that are located near railyards and
ports."252 This is due in part to the fact that "the very slow natural fleet turnover of this sector
results in older locomotives and locomotive engines remaining in use for decades."253 Indeed,
"the service life of a locomotive can extend to 40 years and beyond." 88 Fed. Reg. at 26,093. As
such, state and local governments have expressed increasing interest "in addressing emissions
from non-new locomotives for areas located along high traffic rail lines and/or in communities
with environmental justice concerns." Id. But EPA's decades-old preemption regulations remain
a barrier to innovative state regulations that could protect public health from dangerous
locomotive emissions consistent with the CAA. Id. at 26,092. [EPA-HQ-OAR-2022-0985-1644-
Al, p. 94-95]

252 Press Release, EPA Responds to Petitions to Address Harmful Emissions from Locomotives (Nov. 9,
2022), https://www.epa.gov/newsreleases/epa-responds-petitions-address-harmful-emissions-locomotives.

253 EPA, Petitions to Address Harmful Emissions from Locomotives (Jan. 4, 2023),
https://www.epa.gov/regulations-emissions-vehicles-and-engines/petitions-address-harmful-emissions-
locomotives.

Specifically, in a 1998 rulemaking, EPA established and defined a "preemption period"
equivalent to 133% of the useful life of a new locomotive. 63 Fed. Reg. 18,978 (Apr. 16, 1998);
40 C.F.R. § 1074.12(b). "Useful life" is separately defined as "the period during which the
locomotive engine is designed to properly function in terms of reliability and fuel consumption,
without being remanufactured, specified as work output or miles"—approximately 10 years, in
practice. 40 C.F.R. § 1033.901. EPA's regulations specify that the preemption period applies to
requirements that "include, but are not limited to ... emission standards, mandatory fleet average
standards, certification requirements, retrofit and aftermarket equipment requirements, and
nonfederal in-use testing requirements." Id. § 1074.12(b). The preemption period is unique to
locomotives; "EPA's regulations do not set an equivalent period of preemption for any other
class of nonroad engines." 88 Fed. Reg. at 26,092, n.1012. [EPA-HQ-OAR-2022-0985-1644-
Al, p. 95]

Now, EPA proposes to find that its existing regulations, including the regulatory definition of
a preemption period, "extend[] preemption well beyond the CAA language ... to an extended
point at which locomotives and engines are no longer new," and therefore are "impeding states
from adopting innovative programs to reduce locomotive emissions that may be permissible
under CAA section 209(e)(2)." 88 Fed. Reg. at 26,092. We agree EPA should finalize its
proposal to delete 40 C.F.R. § 1074.12(b). [EPA-HQ-OAR-2022-0985-1644-A1, p. 95]

The scope of CAA preemption of locomotive requirements is clear. The text of CAA section
209 plainly preempts only state and local regulation of "new" locomotives and engines, for
which EPA sets emission standards, while preserving state and local authority to regulate non-
new locomotives and engines. See 42 U.S.C. § 7543(e); see also id. § 7547(a)(5) (EPA "shall
promulgate regulations containing standards applicable to emissions from new locomotives and
new engines used in locomotives"). Congress' intent to preserve state and local authority over
non-new locomotives and engines is evident from the structure of CAA section 209(e), which

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requires EPA, under certain criteria, to waive preemption of California emission standards
or requirements for non-new locomotives and authorizes other states to adopt standards identical
to California's standards. Id. § 7543(e)(2)(A)-(B). [EPA-HQ-OAR-2022-0985-1644-A1, p. 95-
96]

EPA's existing regulations, however, prohibit state and local requirements that do not
significantly affect the design or manufacture of new locomotives or locomotive engines. EPA's
regulations are misaligned with the CAA in two key ways. First, 40 C.F.R. § 1074.12(b)
enumerates examples of state requirements, including "retrofit and aftermarket equipment
requirements," that do not necessarily affect the design and manufacture of new locomotives in
every case and therefore are not categorically preempted. The overbreadth of EPA's list of
enumerated examples has become particularly evident in light of "rapid technological
development" since EPA promulgated the regulations in 1998. 88 Fed. Reg. at 26,096. [EPA-
HQ-OAR-2022-0985-1644-A1, p. 96]

Second, 40 C.F.R. § 1074.12(b) defines a preemption period equivalent to 133% of the useful
life of a new locomotive—which, by its very terms, exceeds the point at which a locomotive is
"new" and inappropriately intrudes on state and local authority over non-new locomotives.254 It
would be unreasonable for EPA to retain a preemption period that impedes beneficial state
regulation Congress authorized, and that is disconnected from EPA's authority over new
locomotives. [EPA-HQ-OAR-2022-0985-1644-A1, p. 96]

254 See EPA, Summary and Analysis of Comments on the Notice of Proposed Rulemaking for Emission
Standards for Locomotives and Locomotive Engines, EPA-420-R-97-101, at 19 & app. C (Dec. 1997).

Organization: Evergreen Action

Finally, we would like to express enthusiastic support for the portion of the rule relating to
state control of locomotive emissions. Locomotives in the United States operate on some of the
oldest and dirtiest technology, and must be regulated in a more comprehensive manner.
Removing EPA's likely inappropriate preemption language, which has always been in tension
with the Clean Air Act and public health needs, and allowing states to finally have the power to
regulate these emissions sources is an important step towards holistically addressing the full
scope of emissions from the transportation sector, and we look forward to engaging with EPA on
future freight regulations. [EPA-HQ-OAR-2022-0985-1595-A1, p. 3]

Organization: International Council on Clean Transportation (ICCT)

ICCT supports EPA's proposed revision of its regulations addressing preemption of state
regulation of locomotives and new engines used in locomotives. The proposal allows California
to proceed with innovative programs and regulatory policies to address emissions from in-use
locomotives. The proposal would permit the state to move forward with a pending locomotive
in-use regulation, which would increase the pace at which locomotive emissions are reduced and
increase the opportunity to transition to zero-emission locomotives. [EPA-HQ-OAR-2022-0985-
1553-A1, p. 5]

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Organization: Moving Forward Network (MFN) et al.

The comments below include a detailed analysis in strong support of EPA's proposal to align
its locomotive preemption regulations with the text of the Clean Air Act. EPA exceeded its
statutory authority in adopting a period of preemption and categories of preempted control
measures for both new and non-new locomotives and engines used in locomotives. Removing 40
CFR Section 1074.12(b) is necessary to align EPA's preemption regulations with Section
209(e)(2) of the Clean Air Act and the cooperative federal system Congress designed in the
Clean Air Act. [EPA-HQ-OAR-2022-0985-1608-A3, pp. 1 - 2]

II. The Clean Air Act's cooperative federalism system requires the federal government and
states to work together to control air pollution and improve air quality.

Congress purposefully designed the Clean Air Act (CAA) to require States and the federal
government to work in partnership under a model of cooperative federalism to achieve clean air.
Under the cooperative federalism framework, federal and state authorities have designated roles
set forth in the text of the CAA. As Congress noted, federal leadership "is essential for the
development of cooperative Federal, State, regional, and local programs to prevent and control
air pollution," while "air pollution control at its source is the primary responsibility of States and
local governments."14 [EPA-HQ-OAR-2022-0985-1608-A3, p. 11]

14 42 U.S.C. §7401.

The designated roles in this partnership are as follows. The federal government promulgates
the national ambient air quality standards, or NAAQS, for criteria pollutants that might "cause or
contribute to air pollution which may reasonably be anticipated to endanger public health or
welfare."15 Each state has "the primary responsibility for assuring air quality within the entire
geographic areas" comprising the state.16 Every state must adopt a State Implementation Plan, or
SIP, which prescribes "the manner in which ... air quality standards will be achieved and
maintained."17 SIPs must include enforceable emission limitations and control measures as
needed to meet the NAAQS.18 [EPA-HQ-OAR-2022-0985-1608-A3, pp. 11 - 12]

15 Id. § 7408.

16 Id. § 7407(a).

17 Id.

18 Id. § 7410(a)(2).

Importantly, except where the CAA enumerates areas for exclusive federal regulation, states
retain the full extent of their inherent police powers to regulate emissions.19 The CAA provides
that, except for specified preemptions of certain state regulation of mobile source emissions,
"nothing . . . shall preclude or deny the right of any State or political subdivision thereof to adopt
or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any
requirement respecting control or abatement of air pollution."20 [EPA-HQ-OAR-2022-0985-
1608-A3, p. 12]

19 Id. §7416.

20 Id.

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As relevant to locomotives, the CAA articulates that federal authorities are tasked with
regulating new locomotives and locomotive engines. To this effect, Section 213(a)(5) provides
that "the Administrator [of the EPA] shall promulgate regulations containing standards
applicable to emissions from new locomotives and new engines used in locomotives."21 [EPA-
HQ-OAR-2022-0985-1608-A3, p. 12]

21	Id. § 7547(a)(5) (emphasis added).

In turn, the CAA does preempt state regulation of some—but notably not all—locomotives.
Section 209(e) states that "[n]o State or any political subdivision thereof shall adopt or attempt to
enforce any standard or other requirement relating to the control of emissions from . . . [n]ew
locomotives or new engines used in locomotives."22 In the following subsection, however, the
CAA clarifies that States are authorized "to adopt and enforce standards and other requirements
relating to the control of emissions from" any nonroad vehicles or engines other than new
locomotives or new locomotive engines.23 [EPA-HQ-OAR-2022-0985-1608-A3, p. 12]

22	Id. § 7543(e)(1) (emphasis added); see also id. § 7543(a) (similar preemption of state standards for new
motor vehicles or new motor vehicle engines).

23	Id. § 7543(e)(1), (2)(A) ("In the case of any nonroad vehicles or engines other than those referred to in
subparagraph (A) or (B) of paragraph (1)," which refers only to "[n]ew locomotives or new engines used in
locomotives" and " [n]ew engines which are used in construction equipment or vehicles or used in farm
equipment or vehicles and which are smaller than 175 horsepower.").

Section 209(e)(2)(A) further states that EPA "shall . . . authorize" states to adopt and enforce
standards for non-new locomotives and non-new engines used in locomotives unless (1) the
State's determination that its "standards will be, in the aggregate, at least as protective of public
health and welfare as applicable Federal standards" is arbitrary and capricious; (2) the state does
not need these standards "to meet compelling and extraordinary conditions"; or (3) the state
standards and enforcement procedures are inconsistent with this section of the CAA.24 [EPA-
HQ-OAR-2022-0985-1608-A3, p. 12]

24	Id. § 7543(e)(2).

In sum, states are empowered to regulate non-new locomotives and non-new locomotive
engines under the CAA, subject to harmonization with other federal laws. There can be no
question of this. Otherwise, it is impossible to reconcile why Congress included
Section 209(e)(2)(A)—which establishes the circumstances in which EPA must approve state
regulations of non-new locomotives and non-new locomotive engines—in the CAA. [EPA-HQ-
OAR-2022-0985-1608-A3, pp. 12 - 13]

Yet, EPA's 1998 regulation preempted "categories of state regulations . . . even when applied
to in-use locomotives and engines for a period equivalent to 1.33 times the useful life period,
because of the significant effect such standards and requirements would have on the design and
manufacture of new locomotives and new locomotive engines."25 Broad preemption of state and
local efforts to reduce locomotive pollution does not align with the text and cooperative
federalism principles underpinning the CAA and warrants EPA's reconsideration. [EPA-HQ-
OAR-2022-0985-1608-A3, p. 13]

25	63 Fed. Reg. 18,978, 18,993 (April 16, 1998).

13

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A. States have a statutory duty to attain the federal air quality standards, including regulating
locomotive pollution in line with the Clean Air Act.

Congress adopted the Clean Air Act to "protect and enhance the quality of the Nation's air
resources so as to promote the public health and welfare and the productive capacity of its
population" and "to encourage or otherwise promote reasonable Federal, State, and local
government actions ... for pollution prevention" among other goals.26 As discussed above,
under this cooperative federalism regulatory scheme, states have "primary responsibility for
assuring air quality" within a given region by submitting implementation plans to achieve and
maintain the NAAQS.27 When an area is in "nonattainment" of a standard, such as ozone or
particulate matter, the state must develop a comprehensive State Implementation Plan (SIP)
describing how it will achieve that standard.28 [EPA-HQ-OAR-2022-0985-1608-A3, p. 13]

26 42 U.S.C. §§ 7401(b), (c).

27 Id. § 7407(a).

28 Id. §§ 7407(d)(1)(A), 7410(a), 7501(2).

The Clean Air Act explicitly recognizes the authority of states to regulate non-new
locomotives in achieving the NAAQS.32 The legislative history of section 209(e) is illustrative.
Congress intentionally preempted state regulation of new nonroad vehicles, including
locomotives, due to concerns about impeding interstate commerce. However, Congressional
members were concerned that these sources were contributing to air quality problems and that
their relative contribution to air quality problems were likely to increase over time, furthering the
need for EPA to swiftly adopt regulations for new vehicles and to preserve the right of states to
regulate nonnew vehicles.33 Concerned that limiting state authority over nonroad sources would
impede air pollution reduction, simultaneously to preempting state regulation of new vehicles,
Congress intentionally and expressly maintained state and local government authority to regulate
nonnew, in-use locomotives:

As the members know, it was with great reluctance that the Senate conferees agreed to the
partial preemption of state authority to control emissions from some new nonroad engines and
vehicles. We did so only after the preemption was strictly limited to that it applied only to new
engines in three distinct categories .... States also fully retain existing authority to regulate
emissions from all types of existing or in-use nonroad engines or vehicles by specifying fuel
quality specifications, operational modes or characteristics or measures that limit the use of
nonroad engines or equipment.34 [EPA-HQ-OAR-2022-0985-1608-A3, pp. 14 - 15]

32 42 U.S.C. § 7543(e).

33 U.S. Senate, 136 Cong. Rec. S16895-01, Clean Air Act Amendments-Conference Report (Oct. 27,

1990), 1990 WL 164490, at *S16976 [emphasis added],

34 U.S. Senate, 136 Cong. Rec. S16895-01, Clean Air Act Amendments-Conference Report (Oct. 27,

1990), 1990 WL 164490, at *S16976 (emphasis added).

Another Congressional report explained that "because the preemption is limited to new engine
standards only, States can continue to require existing and in-use nonroad engines to reduce
emissions by setting fuel requirements, operational conditions or limits on the use of such
equipment."35 [EPA-HQ-OAR-2022-0985-1608-A3, p. 15]

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35 U.S. Senate, 136 Cong. Rec. S17232-01, Clean Air Act Amendments-Conference Report (Oct. 26,
1990), 1990 WL 165459, at *S17237.

As such, it's clear under the Clean Air Act that states retain authority to regulate non-new
locomotives. And in fact, it's critical for states to regulate these vehicles in order to develop SIPs
and attain federal air quality standards. [EPA-HQ-OAR-2022-0985-1608-A3, p. 15]

B. State and local governments must reduce pollution from locomotives to protect public
health and advance civil rights.

State and local governments also retain authority to address locomotive pollution to protect
public health and advance civil rights. This authority resides in both the state's historic police
powers and civil rights statutes. [EPA-HQ-OAR-2022-0985-1608-A3, p. 15]

Railyards, rail corridors, and rail maintenance yards impose significant burdens on
neighboring communities. They produce noise, vibrations, and dangerous air pollutants. These
facilities are known to expose residents to dangerous and toxic air pollution that contributes to
high rates of asthma, cancer, and premature death for the communities living in the shadow of
these facilities. CARB studies on California's 18 largest rail yards suggest that residents living
within 0.5 miles (2,640 feet) of a rail yard face unacceptable cancer risk because of harmful
diesel particulate matter emissions.36 Most often, these are communities of color and low-income
communities. These communities often face cumulative impacts due to the concentration of
other industrial sources and pollution exposure in their communities, and socioeconomic
stressors, meaning that the same amount of pollution can result in more harm than it would if it
was located in communities who do not face such stressors. [EPA-HQ-OAR-2022-0985-1608-
A3, p. 15]

36 Railyard Health Risk Assessments and Mitigation Measures, Cal. Air Res. Bd.,
https://ww2.arb.ca.gov/resources/documents/railYard-health-risk-assessments-and-mitigation-measures
(last visited June 5, 2023) (containing links for 18 Health Risk Assessments).

Thus, it is critical that states and local governments address locomotive operations and reduce
pollution from these activities in order to protect public health. Courts have long recognized
that state police powers encompass the control of air pollution to protect public health.37 As the
Ninth Circuit noted, "[a]ir pollution prevention falls under the broad police powers of the states,
which include the power to protect the health of citizens in the state."38 Indeed, over six decades
ago, the U.S. Supreme Court found that "[legislation designed to free from pollution the very air
that people breathe clearly falls within the exercise of even the most traditional concept of what
is compendiously known as the police power."39 Vindicating the right for residents to breathe
clean air is a well-established and fundamental power of state and local governments. [EPA-HQ-
OAR-2022-0985-1608-A3, pp. 15 - 16]

37 Pac. Merch. Shipping Ass'nv. Goldstene, 639 F.3d 1154, 1166 (9th Cir. 2011).

38 ExxonMobil Corp. v. US EPA, 217 F.3d 1246, 1255 (9th Cir. 2000).

39 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 442 (1960).

This historic police power is maintained within the Clean Air Act and aligned with the
purpose of section 209(e), which leaves regulation of non-new locomotives to state and local
governments. Indeed, the Clean Air Act contains an explicit, broad provision pertaining to the
retention of state authority and stating that nothing within the Act "shall preclude or deny" the

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right of a state or local government to adopt or enforce "1) any standard or limitation respecting
emissions of air pollutants or (2) any requirement respecting control or abatement of air
pollution."40 Courts have long recognized that there is a presumption "to protect a state's historic
police power in protecting the health and safety of its citizenry unless the clear and manifest
purpose of Congress dictates otherwise."41 [EPA-HQ-OAR-2022-0985-1608-A3, p. 16]

40 42 U.S.C. §7416.

41 Pac. Merch. Shipping Ass'nv. Goldstene, 639 F.3d 1154, 1166 (9th Cir. 2011) ((ER33 (citing Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947))).

Historic police powers continue to be an important basis of authority for states and local
governments to address rail-related activity. In cases examining state and local regulation of
locomotive operations, courts have explicitly recognized that local governments retain historic
police powers to address rail-related activity, subject to specific limitations of other federal
preemption schemes 42 [EPA-HQ-OAR-2022-0985-1608-A3, p. 16]

42 See, e.g., Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 643 (2d Cir. 2005) ("States and towns
may exercise traditional police powers over the development of railroad property, at least to the extent that
the regulations protect public health and safety, are settled and defined, can be obeyed with reasonable
certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise
of discretion on subjective questions.").

IV. EPA must delete 40 CFR § 1074.12(b) because it inappropriately reaches beyond the
scope of the agency's statutory authority in broadly preempting state and local governments from
adopting locomotive control measures.

As the agency recognized in the Notice of Proposed Rulemaking (NPRM), Section
1074.12(b) results in preemption rules that reach beyond the scope of Section 209(e)(l)'s
prohibition on requirements that relate to new locomotives and new engines used in locomotives.
We support EPA's proposal to remove Section 1074.12(b) and to make the proposed changes to
more closely align the preemption regulations with the CAA. In addition, we ask EPA to confirm
that state and local authorities are not preempted from adopting regulations that may relate to the
manufacture and design of retrofitting emission controls. [EPA-HQ-OAR-2022-0985-1608-A3,
p. 17]

A. EPA's proposed changes to 40 CFR § 10 to 40 CFR § 101.

In the NPRM, EPA proposed the following changes to its preemption regulations in 40 CFR 8
1074.10 to 40 CFR § 101.

1) In 40 CFR § 1074.10, EPA proposes to revise subsection (b) to contain text that is
currently located in section 1074.12(a), and move the current text of subsection (b) into a new
subsection (c). The proposed section 1074.10 would appear as follows:

• § 1074.10 Scope of preemption.

o § (a) States and localities are preempted from adopting or enforcing standards or
other requirements relating to the control of emissions from new engines smaller
than 175 horsepower that are primarily used in farm or construction equipment or
vehicles, as defined in this part. For equipment that is used in applications in
addition to farming or construction activities, if the equipment is primarily used as

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farm and/or construction equipment or vehicles (as defined in this part) it is
considered farm or construction equipment or vehicles.

o § (b) States and localities are preempted from adopting or enforcing standards or
other requirements relating to the control of emissions from new locomotives and
new engines used in locomotives.

o § (c) For nonroad engines or vehicles other than those described in paragraph (a)
of this section and § 1074.12, States and localities are preempted from enforcing
any standards or other requirements relating to control of emissions from nonroad
engines or vehicles except as provided in Subpart B of this part. [EPA-HQ-OAR-
2022-0985-1608-A3, pp. 17 - 18]

2) EPA proposes to delete 40 CFR § 1074.12 in its entirety. This proposal would remove the
explicit period of preemption as well as the listed categories of state control measures. Because
EPA also proposed to relocate current section 1074.12(a) to section 1074.10(b), the proposal
would delete the following section only:

• § 1074.12 Scope of preemption-specific provisions for locomotives and locomotive
engines . . .

o § (b) During a period equivalent in length to 133 percent of the useful life,

expressed as MW-hrs (or miles where applicable), beginning at the point at which
the locomotive or engine becomes new, those standards or other requirements
which are preempted include, but are not limited to, the following: emission
standards, mandatory fleet average standards, certification requirements, retrofit,
and aftermarket equipment requirements, and nonfederal in-use testing
requirements. The standards and other requirements specified in the preceding
sentence are preempted, whether applicable to new or other locomotives or
locomotive engines. [EPA-HQ-OAR-2022-0985-1608-A3, p. 18]

3) EPA proposes a minor housekeeping edit to paragraph (a) of 40 CFR § 1074.101 to refer to
the relocated text in section 1074.10(b) that is proposed to move out of 1074.12. The proposal
would read as follows:

• § 1074.101 Procedures for California nonroad authorization requests.

o § (a) California must request authorization from the Administrator to enforce its
adopted standards and other requirements relating to control of emissions from
nonroad engines or vehicles that are not preempted by § 1074.10(a) or §
1074.10(b). The request must include the record on which the state rulemaking
was based.

o § (b) After receiving the authorization request, the Administrator will provide
notice and opportunity for a public hearing regarding such requests. [EPA-HQ-
OAR-2022-0985-1608-A3, pp. 18 - 19]

B. Delete the period of preemption for non-federal authorities to adopt locomotive emission
controls.

As discussed, states and local governments are empowered to protect public health and must
attain federal air quality standards under the Clean Air Act. Section 209(e) of the CAA puts an
outer limit on this authority but does not revoke it. Section 209(e)(1) provides that "[n]o State or
any political subdivision thereof shall adopt or attempt to enforce any standard or other

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requirement relating to the control of emissions from . . . [n]ew locomotives or new engines used
in locomotives."44 Section 209(e)(2) establishes the parameters under which the Administrator of
the EPA must authorize California's regulations for any locomotives other than new locomotives
or new engines used in locomotives.45 [EPA-HQ-OAR-2022-0985-1608-A3, p. 19]

44	42 U.S.C. § 7543(e)(1).

45	Id. § 7543(e)(2).

In 1998, when EPA adopted the first locomotive emission regulations, it also adopted broad
preemption regulations. As part of this regulatory package, EPA extended the period during
which non-federal authorities are preempted from participating in efforts to reduce locomotive
pollution to 133 percent of the useful life of a locomotive. The useful life of a locomotive is
defined using the typical period that a locomotive engine is expected to be properly functioning,
which is about 10 years.46 This preemption language was codified in 40 CFR § 1074.12(b). This
preemption period is not found in the language of the CAA or other statutory directives. [EPA-
HQ-OAR-2022-0985-1608-A3, p. 19]

46	62 Fed. Reg. 6366, 6378 (Feb. 11, 1997); 40 CFR § 1033.101(g).

At the same time, EPA adopted 40 CFR § 1033.901, which set forth various definitions
relating to locomotives.47 Importantly, EPA defined "new"—the critical word in the context of
locomotive preemption—to include "[a] locomotive or engine . . . if its equitable or legal title has
never been transferred to an ultimate purchaser," as well as "[a] locomotive or engine ... if it is
remanufactured or refurbished."48 [EPA-HQ-OAR-2022-0985-1608-A3, p. 19]

47	63 Fed. Reg. 18980 (April 16, 1998).

48	40 CFR § 1033.901.

Because locomotives have very long service lives—up to 60 or 70 years in some cases—they
must undergo several extensive remanufacturing operations to continue service.

Remanufacturing is typically needed every 7 to 10 years. Under EPA's regulations, these
remanufactured locomotives were deemed "new" at that point. Once a locomotive regains "new"
status as a remanufactured locomotive, it remains under the same or a largely similar emissions
tier. In effect, this means a locomotive remains under the same emissions tier from the year it
was originally built until the year the engine block is finally unable to continue operations and
the locomotive must be retired, several decades later. [EPA-HQ-OAR-2022-0985-1608-A3,
p. 19]

In the NPRM, EPA noted that this period of preemption "may be overly restrictive in
precluding state consideration of potential measures to reduce emissions from existing
locomotives," and "instead may result in our 1998 preemption rules inappropriately reaching
beyond the scope of section 209(e)(l)'s prohibition on requirements that relate to new
locomotives and new engines used in locomotives."49 We agree. [EPA-HQ-OAR-2022-0985-
1608-A3, pp. 19 - 20]

49	81 Fed. Reg. 26095 (April 27, 2023).

By extending the period of preemption to 133 percent of the useful life of a locomotive, EPA
exceeded its statutory authority set forth in Section 209(e)(1) of the CAA. We strongly support
EPA's proposal to remove this period of preemption by deleting 40 CFR § 1074.12(b) and

18

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therefore more closely aligning EPA's regulations with the CAA. [EPA-HQ-OAR-2022-0985-
1608-A3, p. 20]

There is nothing in the text of the CAA or in the legislative history that directs EPA to
establish a period in which states and local governments are preempted from adopting or
enforcing standards for non-new locomotives or locomotive engines. [EPA-HQ-OAR-2022-
0985-1608-A3, p. 20]

Moreover, the effect of this lengthy period of preemption runs contrary to the intent of CAA
section 209(e)(2). By adding in a period of preemption (coupled with a definition of "new" that
includes remanufactured), EPA communicated to states and local governments that they lack
authority to adopt controls for any locomotives in operation in the United States, even though
this prohibition is not found in the statutory text. To date, no state or local authority has sought
authorization under section 209(e) for any program to address emissions from non-new
locomotives or engines. Meanwhile, locomotive pollution has become one of the most significant
sources of diesel pollution across the country and the bulk of locomotives remain under the
oldest, dirtiest tiers. [EPA-HQ-OAR-2022-0985-1608-A3, p. 20]

At the same time, the period of preemption communicated to locomotive operators that they
can continue to operate out of the purview of non-federal control so long as locomotives are
remanufactured before the approximately 13-year mark (or 133 percent of useful life). Again,
this was never the intent of Section 209(e)(1), as is made clear by the presence of Section
209(e)(2), which sets forth parameters under which the Administrator "shall" authorize
California's regulations for non-new locomotives and engines used in locomotives. [EPA-HQ-
OAR-2022-0985-1608-A3, p. 20]

We urge EPA to delete 40 CFR § 1074.12(b) and more closely align EPA's regulations with
the CAA because, in addition to other reasons noted below, the period of preemption exceeds the
scope of EPA's authority. [EPA-HQ-OAR-2022-0985-1608-A3, p. 20]

C. Remove the categorical preemption of specific state control measures.

When EPA adopted 40 CFR § 1074.12(b) in its 1998 regulations, it also prescribed certain
categories of state and local action as preempted control measures when applied to both new
locomotives and non-new locomotives. Specifically, the regulation declares that states are
preempted from adopting: "emission standards, mandatory fleet average standards, certification
requirements, retrofit and aftermarket equipment requirements, and nonfederal in-use testing
requirements."50 The regulation goes further to claim that such state-specific control measures
are preempted "whether applicable to new or other locomotives or locomotive engines."51
In adopting this provision, EPA exceeded its statutory authority. EPA must remove this
categorical preemption to align with the Clean Air Act. [EPA-HQ-OAR-2022-0985-1608-A3,
pp. 20-21]

50 40 CFR § 1074.12(b).

51 Id.

First, this regulation is contrary to federal law because it inappropriately attempts to limit state

measures that address pollution from non-new locomotives. As explained in detail in section ,

supra, the Clean Air Act explicitly retains state authority to regulate non-new locomotives.52 As
noted above, when crafting section 209(e), Congress explicitly recognized that states could

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regulate non-new locomotives, including, for example, "by setting fuel requirements, operational
conditions or limits on the use of such equipment."53 It was an overreach for EPA to limit state
authority to regulate non-new locomotives in this regulation. EPA should remove this section in
order to align with section 209(e)(1)(B). [EPA-HQ-OAR-2022-0985-1608-A3, p. 21]

52 42 U.S.C. § 7543(e)(1)(B).

53 U.S. Senate, 136 Cong. Rec. S17232-01, Clean Air Act Amendments-Conference Report (Oct. 26,

1990), 1990 WL 165459, at *S17237.

Second, the categories of preempted controls listed in this section are inappropriately broad,
covering measures that would not significantly affect the design or manufacture of new
locomotive engines or vehicles. These regulations were adopted 25 years ago. Technology has
developed, further demonstrating that these prescribed categories are outdated and inconsistent
with preemption as defined by the statute. As EPA points out in the NPRM, there are several
existing technologies, such as the retrofitting of an auxiliary power unit to support engine
shutdown for idle reduction, that are available today to control emission reductions of non-new
locomotives. This technology and other aftermarket treatments or retrofits can be applied to in-
use locomotives without impacting their design and manufacture. Deleting these categorical
preemption provisions is essential to aligning the regulations with the reality of emission controls
today. [EPA-HQ-OAR-2022-0985-1608-A3, p. 21]

Rather than categorically preempting state action, it is more appropriate for EPA to determine
on a case-by-case basis whether individual rules would significantly affect the design and
manufacture of new locomotives and engines, and therefore be preempted. Under Clean Air Act
section 209(e)(2), EPA is required to review and authorize, subject to certain criteria,

California's adoption and enforcement of standards and other requirements relating to control of
emissions from nonroad vehicles or engines other than those referred to in paragraph 209(e)(1),
which would include non-new locomotives and non-new engines used in locomotives.54 One of
the criteria for this review is whether the control measure is consistent with section 209(e) of the
Clean Air Act.55 Thus, during this inquiry, EPA must determine whether a state action is
preempted by applying to "new" locomotives, or if it is a valid exercise of state authority over
"non-new" locomotives. The case-by-case analysis will allow for consideration of specific
control measures, and needed flexibility as technologies develop. In addition, individuals will
have an opportunity to request a hearing and provide public comment on EPA's review. Given
these procedures, there is no risk to removing this categorical preemption. EPA will still need to
determine whether an individual rule runs afoul of preemption, and a case-by-case
analysis allows for a far more nuanced and accurate analysis than the current overly broad
buckets of categorical preemption. [EPA-HQ-OAR-2022-0985-1608-A3, pp. 21 - 22]

54 42 U.S.C. § 7543(e)(2).

55 Id. § 7543(e)(2)(A)(3).

D. Make the accompanying housekeeping edits.

EPA's proposed housekeeping edits would provide clarity in the regulatory scheme and
further alignment with the statutory text of the Clean Air Act. We support these proposed
revisions. [EPA-HQ-OAR-2022-0985-1608-A3, p. 22]

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EPA proposes to revise subsection 40 CFR § 1074.10(b) to contain text currently located in
section 1074.12(a) and move the current text of subsection (b) into a new subsection (c). This
would be solely a housekeeping measure, which we support. [EPA-HQ-OAR-2022-0985-1608-
A3, p. 22]

After making this change, EPA proposes to delete 40 CFR § 1074.12 in its entirety. This
change accounts for the removal of the period of preemption and the categorical preemption of

specific state control measures. For the reasons noted in sections and , supra, we support

this change. [EPA-HQ-OAR-2022-0985-1608-A3, p. 22]

E. Confirm that non-federal authorities are not preempted from adopting control measures
relating to the manufacture and design of retrofitting emission controls.

In the NPRM, EPA notes that where the agency's proposal is adopted, "[a]ny state
authorization application received by EPA would need to demonstrate why the submitted control
measure would not significantly affect the design or manufacture of a new locomotive."56 EPA
proposes to evaluate authorization applications "on a case-by-case basis" subject to the criteria
outlined in section 209(e)(2).57 We agree that this standard is appropriate and in line with the
plain text and intent of Section 209(e). [EPA-HQ-OAR-2022-0985-1608-A3, p. 22]

56 81 Fed. Reg. 26096 (April 27, 2023).

57 Id.

This standard aligns with the CAA in that it does not extend preemption beyond new
locomotives or new engines used in locomotives. Rather, this standard limits preemption to
control measures that would "significantly affect the design or manufacture of a new
locomotive," which matches the language in Section 209(e)(1). In turn, this language does not
appear to categorically preempt states from requiring the development or use of retrofitting
emission controls on locomotives. We believe this reading of the standard is required under
Section 209(e)(1) and (2), and seek confirmation of this from EPA. [EPA-HQ-OAR-2022-0985-
1608-A3, p. 22]

Recognizing that any evaluation of a locomotive control measure must be considered on a
case-by-case basis, we ask EPA to clarify that the 'significant effect' test only pertains to the
manufacturing and design of new locomotives or engines used in locomotives and does not relate
to the manufacturing or design of new aftermarket retrofitting emission controls, as this would
exceed the scope of EPA's statutory authority under CAA section 209(e). [EPA-HQ-OAR-2022-
0985-1608-A3, p. 22]

One suggestion is for EPA to expand the example provided in the NPRM regarding the
retrofitting of an auxiliary power unit (APU) to support engine shutdown for idle reduction to
clarify this inquiry. As EPA notes, "[i]n this scenario, installation of such an APU on a
locomotive with an engine shutdown timer can enable the main engine to shut down while
maintaining power to auxiliary functions such as air brake pressure and battery state of
charge."58 Because of significant advances in locomotive retrofit technology, "[t]here may be
sufficient space and fluids onboard to accommodate this component without disrupting the
existing equipment or design of new remanufacturing kits."59 Importantly, EPA notes that this
technology-which involves the design of pollution control technology that is being bolted on, not
the design of a new locomotive or engine-would appear to be within state and local authorities'

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control. We ask EPA to confirm that state and local authorities are not categorically preempted
from adopting control measures relating to the manufacture and design of retrofitting emission
controls. [EPA-HQ-OAR-2022-0985-1608-A3, p. 23]

58 Id. at 26095.

59 Id.

We support EPA taking the critical action of revising its regulations to align with federal law,
reinforcing states' rights to regulate emissions from locomotives and rail. EPA's 1998
regulations are overly broad and inconsistent with the Clean Air Act, claiming to preempt states
from regulating locomotives during 133 percent of a locomotive's useful life, and
inappropriately prescribing categories of preempted state action. These provisions in 40 CFR §
1074.12(b) extend beyond the Clean Air Act, and we strongly support EPA removing this
language in this action. Please refer to our comments submitted under separate cover, which
focus on the following:

• Locomotive pollution has a significant negative impact on frontline and fenceline
communities' health, regional air quality, and climate.

• The Clean Air Act's cooperative federalism system requires the federal government and
states to work together to control air pollution and improve air quality.

• States and local governments must reduce locomotive pollution to protect public health
and attain federal air quality standards

• We support EPA's proposed changes to its regulatory language. [EPA-HQ-OAR-2022-
0985-1608-A1, pp. 123 - 124]

Organization: National Association of Clean Air Agencies (NACAA)

Revise Locomotive Regulations as Proposed

In addition to addressing GHG emissions from heavy-duty trucks EPA includes in the
proposal a provision 'to revise its [1998] regulations addressing preemption of state regulation of
new locomotives and new engines used in locomotives, to more closely align with language in
the Clean Air Act.' Finalizing this provision will remove an impediment to certain state and local
actions to address emissions from non-new (i.e., in-use) locomotives. To be clear, NACAA has,
for years, advocated for federal action to substantially reduce emissions from all new,
remanufactured and in-use locomotives, which are major sources of harmful pollutants that
adversely affect public health, particularly that of people who reside in communities near rail
yards and railways. Far more protective federal locomotive standards across the board are
imperative and will improve air quality everywhere in the country by reducing emissions of NOx
and fine particulate matter, including toxic diesel PM. Such controls can also reduce GHG
emissions. We continue to urge EPA to make such comprehensive federal action a top priority.
At this time, NACAA supports EPA's proposed revision and views it as a modest - but
important - first step toward fulfilling a much larger federal responsibility. [EPA-HQ-OAR-
2022-0985-1499-A1, pp. 9-10]

The CAA does not bar states from preventing the oldest and dirtiest locomotives from
operating within their jurisdictions. Neither does the CAA prevent states from ensuring that

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locomotive operators properly use the Automatic Engine Start/Stop Systems (that reduce
locomotive idling and related emissions) required by EPA. As with other heavy-duty mobile
sources, preventing unnecessary idling is a traditional state role under the CAA. NACAA
concurs with EPA that its prohibition of state regulations, as included in 40 C.F.R. 1074.12(b),
extends preemption well beyond the scope of CAA section 209(e)(1) and, further, 'imped[es]
states from adopting innovative programs to reduce locomotive emissions that may be
permissible under CAA section 209(e)(2).'17 NACAA further concurs that 'locomotive emission
controls have developed significantly since the 1998 rule, and some of these developments call
into question the factual underpinnings of EPA's prior decision to categorically preempt certain
controls up to 133 percent of the regulatory useful life.'18 [EPA-HQ-OAR-2022-0985-1499-A1,
p. 10]

17	Supra note 1, at 26,092

18	Id. at 20,094

As EPA discusses in its proposal, locomotive emission controls can now be used for non-new
locomotives without affecting the design and manufacture of new locomotives and/or new
engines used in locomotives. EPA identifies two examples of such controls: 1) retrofitting of an
auxiliary power unit to support engine shutdown for idle reduction and 2) installation of a new
load control calibration strategy that better manages load on the main engine while the
locomotive is in line haul service. The agency also writes in the proposal, 'the very nature of
rapid technological development suggests that it is not necessary or possible for EPA to
prejudge, as under the current text of 40 CFR 1074.12, all potential forms of state control of
existing locomotives regarding whether they should remain preempted with no possibility of
authorization under CAA section 209(e)(2). EPA further believes that the examples discussed
show there is sufficient information available to more generally call into question the conclusion
that all the forms of state control explicitly preempted by the current text in 40 CFR 1074.12(b)
would necessarily affect how manufacturers and remanufacturers design new locomotives and
new engines used in locomotives.'19 [EPA-HQ-OAR-2022-0985-1499-A1, p. 10]

19	Supra note 1, at 26,095

EPA should finalize its proposal with respect to locomotives by deleting 40 C.F.R. 1074.12(b)
in its entirety and making all other revisions as necessary to fulfill the purpose of this proposed
action. Once final, state and local air agencies across the nation will have an opportunity to
address emissions that contribute to nonattainment or may push areas on the cusp of
nonattainment over the edge. [EPA-HQ-OAR-2022-0985-1499-A1, pp. 10-11]

Organization: Northeast States for Coordinated Air Use Management (NESCAUM) and the
Ozone Transport Commission (OTC)

Revision to Preemption Regulation for Locomotives

We agree with EPA that the prohibition of state locomotive regulation contained in 40 C.F.R.
§ 1074.12(b) exceeds the scope of preemption in CAA Section 209(e)(1)(B), and that the factual
underpinnings of EPA's 1998 final rule establishing Emissions Standards for Locomotives and
Locomotive Engines no longer apply. As discussed in the NPRM, locomotive emission controls
have advanced significantly since 1998 and can be employed for existing locomotives without
affecting the design and manufacture of new locomotives and engines. The NPRM identifies two

23

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potential examples: retrofitting an auxiliary power unit to support engine shutdown for idle
reduction; and installing a load control calibration strategy to better manage load on the main
engine while the locomotive is in line haul service. Moreover, given the rapid pace of
technological development, it is not necessary or possible for EPA to prejudge all potential forms
of state control of existing locomotives with no possibility of authorization under CAA Section
209(e)(2). Similarly, as discussed in the NPRM, there is sufficient reason to question EPA's
1998 conclusion that all the forms of state control listed in the current text in 40 C.F.R. §
1074.12(b) would necessarily affect how manufacturers and remanufacturers design new
locomotives and locomotive engines. [EPA-HQ-OAR-2022-0985-1562-A1, p. 15]

EPA's proposal, if finalized, would provide California with greater flexibility to explore and
develop a specific program to reduce emissions from locomotives, and allow EPA to evaluate a
request for authorization from the state on its merits with the benefit of an administrative record.
If so authorized, states would gain an important tool to help achieve and maintain the NAAQS.
As such, we strongly support EPA's proposal to delete 40 C.F.R. § 1074.12(b) in its entirety and
make the other procedural and housekeeping revisions discussed in the NPRM. [EPA-HQ-OAR-
2022-0985-1562-A1, p. 15]

Organization: South Coast Air Quality Management District (South Coast AQMD)

Locomotives are projected to emit approximately 16 tons per day of NOx within the Basin by
2037, which is more than a quarter of the total amount of NOx we can have in our region and
still meet the 2015 8-hour ozone standard. Absent meaningful federal actions it has become
incumbent upon CARB, as well as the South Coast AQMD, to identify innovative control
strategies using our limited authority to reduce emissions from railroad operations. [EPA-HQ-
OAR-2022-0985-1575-A1, p. 4]

South Coast AQMD is therefore supportive of the proposed amendment to delete 40 CFR
Section 1074.12 - Scope of preemption-specific provisions for locomotives and locomotive
engines. This amendment would remove current regulatory preemption restrictions beyond the
original intent of the Clean Air Act. In lieu of a categorical preemption approach per 40 CFR
Section 1074.12(b), the U.S. EPA is now proposing to review California's nonroad authorization
request on a case-by-case basis, based on the statutory authorization criterion in the Clean Air
Act Section 209(e)(1)(B) and 42 U.S.C. 7543(e)(1)(B), namely the demonstration of why the
submitted control measure would not significantly affect the design or manufacture of a new
locomotive or locomotive engine. However, aside from giving two potential examples of such
controls, the Notice of Proposed Rulemaking did not clearly indicate whether a more systematic
guidance would be provided in relation to the parameters to be considered in the case-by-case
review. Without such guidance, the determination process may be potentially subject to too
much uncertain discretion and suffer from inconsistent interpretations of the statutory
authorization criterion depending on a particular administration. [EPA-HQ-OAR-2022-0985-
1575-A1, p. 4]

We further recommend that, as part of the case-by-case determination process and in a
manner consistent with the statutory authorization criterion, the U.S. EPA consider additional
factors including: 1) clear air quality need within the state, either in terms of attainment and
requirements under the CAA and/or environmental justice consistent with Title VI and
applicable presidential executive orders, 2) whether rail sources appear to be less regulated and

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cause a disproportionate impact relative to other sources, due to the fact that the state and its
political subdivisions have controlled other sources within their authority to the maximal extent
possible in terms of technological and economic feasibilities, and 3) whether the proposed level
of control being imposed on locomotives is no more stringent than the level of control on other
sources of emissions under state authority, such that the submitted control measure is consistent
with abroad program aimed at reducing emissions [EPA-HQ-OAR-2022-0985-1575-A1, pp. 4-
5]

Organization: State of California et al. (1)

The States of California,1 Connecticut, Delaware, Maine, Maryland, New Jersey, New York,
Oregon, Washington, the Commonwealths of Massachusetts and Pennsylvania, and the District
of Columbia (collectively, "our States") respectfully submit these comments in support of the
Environmental Protection Agency's ("EPA") proposed revisions to "Preemption of State
Standards and Requirements for New Locomotives or New Engines Used in Locomotives,"
(Proposed Revisions), contained within the Notice of Proposed Rulemaking for "Greenhouse
Gas Emissions Standards for Heavy-Duty Vehicles—Phase 3," 88 Fed. Reg. 25,926 (April 27,
2023) (NPRM).2 [EPA-HQ-OAR-2022-0985-1526-A1, p. 1]

1 The California Attorney General submits these comments pursuant to his independent power and duty to

protect the environment and natural resources of the State. See Cal. Const., art. V, § 13; Cal. Gov. Code, §§

12511, 12600-12612; D'Amico. v. Bd. of Medical Examiners, 11 Cal.3d 1, 1415 (1974).

2 See NPRM at 26,092-96 (revising 40 C.F.R. 1074.10, 1074.12, and 1074.101).

Our States commend EPA for revisiting its preemption regulation specific to locomotives and
locomotive engines, 40 C.F.R. § 1074.12 (Locomotives Preemption Regulation), in order to
better align it with the Clean Air Act ("CAA"). [EPA-HQ-OAR-2022-0985-1526-A1, p. 1]

Congress preserved state authority in the CAA to regulate locomotive emissions by requiring
the EPA Administrator to authorize California to control emissions from locomotives and
locomotive engines that are not new ("non-new").4 Other states may adopt and enforce
California's standards as well.5 EPA's proposed deletion of subsection (b) of 40 CFR 1074.12
will advance Congressional intent by clarifying the States' authority to regulate emissions from
non-new locomotives. [EPA-HQ-OAR-2022-0985-1526-A1, p. 2]

Under EPA's regulations for the control of emissions from locomotives, a locomotive,
including its engine, is no longer new once legal or equitable title has transferred, or after it is
placed into service.6 By contrast, EPA's Locomotives Preemption Regulation references a period
equivalent to 133 percent of the useful life of a locomotive or engine.7 This has the potential to
cause significant confusion, as the regulation could be interpreted to preempt California and
other States from regulating well after a locomotive is no longer considered new—in other
words, during the period when the locomotive is non-new and, thus, subject to potential state
regulation. [EPA-HQ-OAR-2022-0985-1526-A1, p. 2]

6 40 C.F.R. § 1033.901 (def. of "new").

7 Id., § 1074.12(b).

II. Legal Background

A. Congress Preserved State Authority to Control Emissions from Non-New Locomotives

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The CAA requires EPA to promulgate standards to achieve the greatest degree of emission
reduction achievable through the application of technology applicable to emissions from new
locomotives and new engines used in locomotives.86 As described above, EPA has set emission
standards. The CAA also provides that no State or any political subdivision thereof shall adopt or
attempt to enforce any standard or other requirement relating to the control of emissions from
"[n]ew locomotives or new engines used in locomotives."87 But the statute expressly preserves
state authority to regulate non-new locomotives and engines. The CAA mandates that EPA
authorize California to enforce standards to control emissions from "any nonroad vehicles or
engines other than those referred to" in the preceding subparagraphs—e.g., other than new
locomotives and their engines.88 Other States are permitted to adopt and enforce California's
standards.89 [EPA-HQ-OAR-2022-0985-1526-A1, pp. 12-13]

86	42 U.S.C. § 7547(a)(5).

87	Id., § 7543(e)(1), (e)(1)(B) (italics added).

88	42 U.S.C. § 7543(e)(2)(A).

89	Id., § 7543(e)(2)(B).

Thus, Congress's intent with respect to the regulation of locomotive emissions is apparent on
the face of the statute: California and the other States are preempted only from regulating
emissions from new locomotives and their engines, which is under the exclusive purview of the
EPA, but may regulate emissions from non-new locomotives and their engines.90 [EPA-HQ-
OAR-2022-0985-1526-A1, p. 13]

90	See also Engine Mfrs. Ass'nv. U.S. E.P.A., 88 F.3d 1075, 1091 (D.C. Cir. 1996) (discussing Congress's

intent to protect California's ability to continue to develop nonroad emission standards).

III. Discussion

A. The Proposed Revisions Are Warranted to More Clearly Align the Locomotive Preemption
Regulation with the CAA

As defined in EPA's regulations for the control of emissions from locomotives (not reopened
here), a locomotive, including its engine, is no longer "new" once legal or equitable title has
transferred, or after it is placed into service.91 EPA's Locomotive Preemption Regulation could
be read as "extending preemption well beyond the CAA language," i.e., far beyond the point at
which locomotives and engines are no longer "new."92 [EPA-HQ-OAR-2022-0985-1526-A1, p.
13]

91	40 C.F.R. § 1033.901 (def. of "new").

92	NPRM at 26,092.

The first subsection of EPA's Locomotive Preemption Regulation reflects the language in
Section 209(e): "States and localities are preempted from adopting or enforcing standards or
other requirements relating to the control of emissions from new locomotives and new engines
used in locomotives."93 [EPA-HQ-OAR-2022-0985-1526-A1, p. 13]

93	40 C.F.R. § 1074.12(a).

The second subsection, however, could lead to confusion and deter the States from exercising
the authority preserved under the CAA. This part appears to extend preemption to "a period

26

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equivalent in length to 133 percent of the useful life, expressed as MW-hrs (or miles where
applicable), beginning at the point at which the locomotive or engine becomes new... ,"94 As
discussed in the NPRM, the Locomotive Preemption Regulation also provides specific examples
of standards and other requirements that would presumptively be preempted during the specified
period, including "retrofit and aftermarket equipment requirements," "whether applicable to new
or other locomotives or locomotive engines."95 [EPA-HQ-OAR-2022-0985-1526-A1, p. 13]

94	Id., § 1074.12(b); NPRM at 26,092.

95	Id., § 1074.12(b) (italics added); NPRM at 26,092.

As described above, Congress itself defined the scope of preemption for locomotives and
locomotive engines and did not delegate EPA authority to change it.96 "[AJgencies have no
special authority to pronounce on pre-emption absent delegation by Congress... ,"97 Section
209(e)(2) specifically preserves California's authority to adopt and enforce standards applicable
to non-new locomotives and engines.98 Congress required EPA to authorize such California
regulations, unless evidence supports one of three factual findings that can be a basis for
denial.99 [EPA-HQ-OAR-2022-0985-1526-A1, pp. 13-14]

96	42 U.S.C. § 7543(e).

97	Wyethv. Levine, 555 U.S. 555, 577 (2009); see also Louisiana Pub. Serv. Comm'nv. FCC, 476 U.S.
355, 374 (1986) ("[A]n agency literally has no power to act, let alone pre-empt the validly enacted
legislation of a sovereign State, unless and until Congress confers power upon it.").

98	42 U.S.C. § 7543(e)(2).

99	Id., § 7543(e)(2)(A).

Congress's direction to EPA contained in Section 209(e) to "issue regulations to implement
this subsection" does not provide EPA with authority to expand the scope of categorical
preemption.100 The text provides no indication that "Congress intended [EPA] regulations ... to
displace state law[s]" other than those Congress itself expressly chose to displace through the
CAA.101 When Congress authorizes EPA to categorically preempt state law under the CAA, it
does so in clear language that bears no resemblance to Section 209(e).102 The direction to
"implement" the categorical preemption decisions Congress already made bears no resemblance
to such provisions.103 [EPA-HQ-OAR-2022-0985-1526-A1, p. 14]

100	Id., § 7543(e) (final sentence).

101	See Louisiana Pub. Serv. Comm'n, 476 U.S. at 374.

102	E.g., 42 U.S.C. § 7545(c)(4)(A).

103	See also Nat. Res. Def. Council v. E.P.A., 777 F.3d 456, 473 (D.C. Cir. 2014) (vacating EPA
implementation regulations based on exceeding and conflicting with the CAA); S.E.C. v. Sloan, 436 U.S.
103, 118 (1978) (courts reject agency interpretations that are inconsistent with the statute or frustrate
congressional policy underlying the statute); Ry. Lab. Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d
655, 670 (D.C. Cir. 1994) (agency's power is no greater than that delegated to it by Congress).

EPA's proposal is an appropriate clarification of its Locomotive Preemption Regulation that
will prevent a misinterpretation that EPA intended to expand the scope of congressionally-
defined preemption. As EPA correctly observes, the text of Section 209(e)(2)(A) calls for EPA to
make factual findings on a record that includes public comment. The CAA does not direct, or
even authorize, EPA to predetermine that certain regulations of non-new locomotives and their

27

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engines are categorically preempted.104 Rather, EPA may evaluate whether a given California
law impermissibly regulates new locomotives or new engines on a "case-by-case basis."105 The
Proposed Revisions bring EPA's Locomotive Preemption Regulation into alignment with the
statute. [EPA-HQ-OAR-2022-0985-1526-A1, p. 14]

104	NPRM at 26,095; see also 42 U.S.C. § 7543(e)(2)(A).

105	NPRM at 26,095.

B. Retaining the Current Regulatory Text Would Be Detrimental to the Public

EPA asks for comments on "to what extent there would be public benefit if [it] were to retain
the current regulatory text."106 There is no public benefit to retaining the existing text; rather, it
would be detrimental to the public. [EPA-HQ-OAR-2022-0985-1526-A1, p. 14]

106	Id.

As explained above, there is a great need for the States to be able to exercise their
congressionally-preserved authority to regulate emissions from non-new locomotives.
Locomotive emissions present an increasing proportion of the harmful air pollutants endangering
public health and the environment, and plaguing environmental justice communities. State action
is needed to respond to this critical situation and also to attain and maintain NAAQS. The current
regulatory text has the potential to create confusion and to unintentionally and inappropriately
serve as a deterrent to the States exercising their authority. [EPA-HQ-OAR-2022-0985-1526-A1,
p. 15]

IV. Conclusion

For all of the reasons stated above, our States respectfully request that EPA finalize and adopt
the proposed revisions to its Locomotive Preemption Regulation. [EPA-HQ-OAR-2022-0985-
1526-A1, p. 15]

EPA Summary and Response:

Summary:

The commenters listed above in this section expressed support for EPA's proposed action, for
a variety of reasons. Among the comments of support were a few other remarks which EPA
believes merit a response. In particular, ICCT commented that the proposal would permit the
state to move forward with a pending locomotive in-use regulation. The Moving Forward
Network (MFN) asked us to clarify whether the "significant effect" test would apply to the
manufacturing or design of new aftermarket retrofitting emission controls. MFN also asked us to
confirm that state and local authorities are not preempted from adopting regulations that may
relate to the manufacture and design of retrofitting emission controls. The South Coast AQMD
suggested that we provide additional guidance for how EPA evaluate future case by case
decisions. They also recommended additional factors we should consider when making future
evaluations. The Moving Forward Network and the State of California et al. commented that
states may regulate emissions from non-new locomotives and their engines.

28

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Response:

We appreciate the support and agree this action should be finalized as proposed. We wish to
clarify that this action does not evaluate whether an authorization can be granted for California's
proposed in-use locomotive rule. We don't concede that we exceeded our statutory authority set
forth in Section 209(e)(1) of the CAA in the 1998 rule, rather we now view the previous rule as
unnecessarily specifying preempted elements that the statute does not require and that we now
think are not in all cases appropriate.

In response to MFN's comment about the significant effect test, in this action EPA cannot
make any determination about whether any retrofitting requirements would or would not be
preempted as significantly impacting the design and manufacture of new locomotives or new
engines used in locomotives. We cannot 'confirm' that retrofitting requirements in general could
be authorized under CAA section 209(e)(2). We will evaluate any future request from California
on a case-by-case basis.

As we discussed in our 1998 rule adopting the first locomotive emission standards,
requirements on non-new locomotives could potentially affect the design and manufacturing of
new locomotives.2 For this reason, we cannot definitively state that the 'significant effect' test
and the scope of preemption would not relate to aftermarket retrofitting emission controls.

In response to the suggestion from South Coast AQMD, EPA does not currently have any
plans to issue guidance regarding the specific additional factors suggested by this commenter to
govern future authorization reviews.

In response to the comment from the Moving Forward Network and the State of California et
al. asserting that states may regulate non-new locomotives and engines, this is true only up to a
point. Even for non-new locomotives, California and other states are preempted from unilaterally
regulating non-new locomotives and engines, but under CAA section 209(e)(2)(A) California
may seek EPA's authorization. If granted by EPA, under CAA section 209(e)(2)(B) other states
may adopt and enforce standards identical to those authorized by EPA, but other states are not
free to independently regulate non-new locomotives or their engines and even California may not
do so without EPA's authorization under section 209(e)(2)(A).

3 Critical Comments
3.1 Small Business Concerns

Comments by Organizations

Organization: American Short Line and Regional Railroad Association (ASLRRA)

The American Short Line and Regional Railroad Association ("ASLRRA"), 1 on behalf of
itself and its member railroads, submits the following comments in response to the

2 See Emission Standards for Locomotives and Locomotive Engines, Final Rule, 63 FR 18978, 18994 (April
16, 1998).

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Environmental Protection Agency ("EPA")'s April 27, 2023, Notice of Proposed Rulemaking
("NPRM") on "Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles - Phase 3".2

These comments supplement comments that ASLRRA has already submitted in this docket
jointly with the Association of American Railroads. In addition to the points raised previously,
these comments focus on an issue specific to small business railroads: the failure of EPA to
comply with the Regulatory Flexibility Act.3 [EPA-HQ-OAR-2022-0985-1563-A1, p. 1]

1 ASLRRA is a non-profit trade association representing approximately 500 short line and regional railroad

members and hundreds of railroad supply company members in legislative and regulatory matters.

2 88 Fed. Reg. 25,926 (April 27, 2023).

3 5U.S.C. 601 etseq.

The NPRM's Proposed Change to Locomotive Preemption Targets Small Business Railroads

The NPRM proposes a dramatic change to EPA's regulations on the scope of preemption-
specific provisions for locomotives and locomotive engines, which stand to disproportionately
impact small business railroads.17 Current regulations at 40 C.F.R. § 1074.12 states that States
and localities are preempted from adopting or enforcing standards or other requirements relating
to the control of emissions from new locomotives and new engines used in locomotives, and
further specifies the period of time, 133 percent of the useful life of the locomotive or engine,
and types of requirements that are preempted, including emission standards, mandatory fleet
average standards, certification requirements, retrofit and aftermarket equipment requirements,
and nonfederal in-use testing requirements. The NPRM proposes to eliminate section 1074.12
and combine existing section 1074.10 with a new paragraph (b) that only specifies, "States and
localities are preempted from adopting or enforcing standards or other requirements relating to
the control of emissions from new locomotives and new engines used in locomotives."18 [EPA-
HQ-OAR-2022-0985-1563-A1, p. 4]

17 88 Fed. Reg. at 26,092.

18 Id. at 26,161.

EPA states that the service life of a locomotive "can extend to 40 years and beyond," and that
"States have expressed interest in regulating non-new locomotives."19 Further, the NPRM
provides that 93% of the locomotives of Class II and Class III railroads (short line railroads)
are older, Tier 2 or earlier locomotives.20 This appears to be a reasonable assertion, as most short
line railroads buy used locomotives and maintain and use their locomotive fleets for decades.21
This change would have a dramatic impact on short line railroads. Often operating on razor-thin
margins, small business railroads currently rely on preemption explicitly granted in the
regulation that prevents States and localities from enacting their own regulations on locomotive
emissions. [EPA-HQ-OAR-2022-0985-1563-A1, pp. 4 - 5]

19 Id. at 26,093.

20 Id. Seventy-four percent of Class I railroad locomotives are Tier 2 or earlier.

21 While there is not a complete data set on short line locomotives, information from the Universal

Machine Language Equipment Registry (UMLER) shows that only 11% of short line locomotives that have

been used in interchange service were built after 2000. For information on UMLER, see public.railinc.com.

The NPRM Fails to Follow the Regulatory Flexibility Act

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EPA states that the changes proposed in the NPRM will not have a significant impact on a
substantial number of small entities, but only addresses the changes proposed to EPA's Phase 2
greenhouse gas requirements, but it does not mention the locomotive preemption change and its
impact to small business railroads.22 Thus, the NPRM fails to assess how such a transformative
change would significantly impact a substantial number of short line railroads in accordance with
the Regulatory Flexibility Act ("RFA"), as amended by the Small Business Regulatory
Enforcement Fairness Act ("SBREFA") - and it also declines to provide regulatory relief or
consider less burdensome alternatives for small businesses.23 Further, the RFA, as amended by
SBREFA, also requires the EPA to convene a Small Business Advocacy Review ("SBAR")
panel for most proposed rules unless the agency can certify that a rule will not have a significant
economic impact on a substantial number of small entities.24 [EPA-HQ-OAR-2022-0985-1563-
Al, p. 5]

22 88 Fed. Reg. at 26,097.

23 5 U.S.C. 601 et seq.

24 5 U.S.C. § 609(b).

Most Class II and Class III railroads fit the SBA's definition of a small entity in the railroad
industry, as they have fewer than 1,500 employees.25 As 93% of the locomotives operated by the
approximately 600 short line railroads are Tier 2 or older, the change in preemption coverage
would impact a substantial number of these small entities. [EPA-HQ-OAR-2022-0985-1563-A1,
p. 6]

25 NAICS Code 48211, "Short Line Railroads," at SBA, "Table of Small Business Size Standards Matched
to North American Industry Classification System Codes." Effective Dec. 19, 2022. Available at:
https://www.sba.gov/document/support-table-size-standards.

EPA Response:

Response:

We disagree with the commenter's assertion that the revisions to the locomotive preemption
regulation would have any direct impact on small entities and require convening of a small
business panel under the Regulatory Flexibility Act. This rule simply revises EPA's regulations
to align with section 209 of the Clean Air Act and to preserve for separate future adjudicatory
actions under CAA section 209(e)(2) whether any particular state rule addressing non-new
locomotives or engines would impermissibly relate to the control of emissions from new
locomotives or engines under section 209(e)(1). This action does not directly regulate any small
entity, or a fortiori, the commenter or any of its members. See Cement Kiln Recycling Coal. v.
EPA, 255 F.3d 855, 867-69 (D.C. Cir. 2001) (agencies need conduct Regulatory Flexibility Act
analyses and certifications only with regard to small entities that are directly "subject to the
proposed regulation—that is, those 'small entities to which the proposed rule will apply").
Moreover, as explained in the preamble, the agency made a finding that this rule would not have
a significant economic impact on a substantial number of small entities. Consequently, the
NPRM did not need to assess how the rule revision might impact a substantial number of short
line railroads in accordance with the RFA, as amended by the Small Business Regulatory
Enforcement Fairness Act ("SBREFA"). Likewise, it was unnecessary to convene a Small

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Business Advocacy Review ("SBAR") panel, and the Administrator properly certified that this
rule will not have a significant economic impact on a substantial number of small entities.

3.2 Concerns regarding the status of state-level controls

Comments by Organizations

Organization: American Free Enterprise Chamber of Commerce (AmFree) et al.

III. EPA's Attempt To Permit State Regulation Of Locomotives Is Unlawful

The proposed rule also seeks to provide California—and California alone— with new
authority to experiment with regulation of certain locomotives and locomotive engines. This
effort is barred by the settled constitutional principle of equal state sovereignty. And even if it
were constitutional, EPA has failed adequately to explain its sudden reversal of its two-decades-
old position that California lacks authority under the Clean Air Act to regulate locomotives and
locomotive engines for 133 percent of their useful lives. For either or both of these reasons, EPA
cannot move forward with the proposed grant of new regulatory authority to California. [EPA-
HQ-OAR-2022-0985- 1660-A1, pp. 67 - 68]

The specific action EPA proposes is to rescind 40 C.F.R. § 1074.12(b), promulgated in 1998
and unchanged since. See 63 Fed. Reg. 18,978, 18,993-94 (Apr. 16, 1998). That regulation
implemented Section 209(e)(1)(B) of the Clean Air Act, 42 U.S.C. § 7543(e)(1)(B), which
prohibits any state regulation "relating to the control of emissions" from "[n]ew locomotives or
new engines used in locomotives." The original regulation swept broadly. EPA interpreted the
statutory phrase "relating to the control of emissions" to bar even state regulation of non-new
locomotives or engines where the regulation "would be expected to affect how a manufacturer
designs a new locomotive or new locomotive engine." 62 Fed. Reg. 6366, 6397 (Feb. 11,

1997).13 As a result, when EPA proceeded to enumerate specific areas, such as "emission
standards," in which States were forbidden to act, EPA made clear that federal preemption
extended to both "new or other locomotives or locomotive engines," for "133 percent" of their
useful lives. 40 C.F.R. § 1074.12(b) (emphasis added). [EPA-HQ-OAR-2022-0985-1660-A1,
p. 68]

13 A locomotive or engine is considered to be "new" both when it is freshly manufactured and when it has
been "remanufactured." 40 C.F.R. § 1033.901.

The wide preemptive scope of the regulation was intended to provide "clarity and certainty to
the industry and states," given the "interstate nature of locomotive travel and the fact that
regulation of locomotives is generally national in scope." 62 Fed. Reg. at 6396. As EPA noted at
the time, "compelling policy reasons" supported "uniform, national regulation of locomotive
emissions," including the "significant interstate commerce concerns raised by state-by-state
regulation of locomotives." Id. at 6397; see also id. (noting concern raised by Congress that
"State efforts to regulate locomotive emissions or operations would impose an unconstitutional
burden on interstate commerce"). [EPA-HQ-OAR-2022-0985-1660-A1, p. 68]

Now, two decades into this regime, with all of the reliance that interests that have accrued,
EPA proposes to reverse course and "allow California the opportunity to explore, develop, and
justify" its own regulations of non-new locomotives. 88 Fed. Reg. at 26,096. EPA offers a

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California-centric course of action because Section 209(e) permits only California to promulgate
regulations "relating to the control of emissions," on which other States may then seek to
piggyback. 42 U.S.C. § 7543(e)(2)(A). This proposal is twice unlawful. [EPA-HQ-OAR-2022-
0985-1660-A1, p. 69]

First, by granting special privileges to California that are not granted to other States, Section
209(e) violates the equal sovereignty of the States—and, as a consequence, so too does EPA's
proposed implementation of that provision. It is a well-settled constitutional "principle that all
States enjoy equal sovereignty." Shelby County v. Holder, 570 U.S. 529, 535 (2013); see
Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1497 (2019) (noting that "[e]ach State[]" has
"equal dignity and sovereignty under the Constitution"). For that reason, the Supreme Court has
repeatedly condemned congressional efforts to enact legislation that preferences (or disfavors)
some States over others. See, e.g., Shelby County, 570 U.S. at 544 ("[DJespite the tradition of
equal sovereignty, the [Voting Rights Act's preclearance requirements] appl[y] to only nine
States."); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009) ("The
[Voting Rights Act] also differentiates between the States, despite our historic tradition that all
the States enjoy 'equal sovereignty.'" (citation omitted)); see also, e.g., Nat'l Pork Producers
Council v. Ross, 143 S. Ct. 1141, 1164 (2023) (plurality op.) (suggesting that giving voters in
some States greater constitutional authority "to regulate in-state sales" of goods than voters in
other States would violate the "'fundamental principle of equal sovereignty'" (quoting Shelby
County, 570 U.S. at 544)). [EPA-HQ-OAR-2022-0985-1660-A1, p. 69]

Section 209(e) transgresses this principle. There is no question that Section 209(e), like other
provisions of the Clean Air Act, provides power to California not afforded to other States. Only
California may deviate from the federal government and propose its own emissions standards,
see 42 U.S.C. § 7543(e)(2)(A); the other States are relegated to either following the trail blazed
by California or observing the federal standards, see id. § 7543(e)(2)(B). Nor can EPA resort to
an argument—as it has elsewhere, see, e.g., EPA Br. 34, Ohio v. EPA, No. 22-1081 (D.C. Cir.
Jan. 13, 2023)—that the Clean Air Act simply grandfathered in existing California programs.
Whatever the merits of that argument may be in other contexts, here EPA is proposing to expand
California's authority and to permit the State, for the first time, to regulate emissions from non-
new locomotives and locomotive engines. That selective grant of additional, unprecedented
authority to California violates equal sovereignty. See Thomas B. Colby, In Defense of the Equal
Sovereignty Principle, 65 Duke L.J. 1087, 1157 (2016) (identifying the Clean Air Act's
preferencing of California as "a classic example of unequal sovereignty"). [EPA-HQ-OAR-
2022-0985-1660-A1, pp. 69 - 70]

Second, even if EPA's proposal were constitutional, it nonetheless is arbitrary and capricious.
"[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis
for the change beyond that which may be required when an agency does not act in the first
instance." State Farm, 463 U.S. at 42; see Physicians for Soc. Resp. v. Wheeler, 956 F.3d 634,
644 (D.C. Cir. 2020) ("Reasoned decision-making requires that when departing from precedents
or practices, an agency must offer a reason to distinguish them or explain its apparent rejection
of their approach." (quotation marks omitted)). Here, however, EPA appears to have changed its
approach for no reason other than that States have begun to express interest in regulating non-
new locomotives to "obtain[] greater emissions reductions from this sector" and that some
potential state regulations may fit within the bounds of the Clean Air Act. 88 Fed. Reg. at
26,093, 26,095. EPA has not, as required, confronted or rebutted the "compelling policy reasons"

33

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supporting a national regulatory approach identified in its prior rulemaking. 62 Fed. Reg. at
6397. EPA is also silent on the unconstitutional burden on interstate commerce, see id., that may
be presented by turning the country into a quilt of States adopting two competing emissions
standards. These gaps in the agency's reasoning make the proposed rescission of the prior
regulation arbitrary and capricious. Cf. MISO Transmission Owners v. FERC, 45 F.4th 248, 264
(D.C. Cir. 2022) (agency action was not the result of "reasoned decision-making" where agency
"failed to adequately explain why" its previous concerns "no longer mattered" and did not
"engage[] with" those concerns). [EPA-HQ-OAR-2022-0985-1660-A1, p. 70]

Organization: Association of American Railroads (AAR), American Short Line and Regional
Railroad Association (ASLRRA)

The Associations' members own (or lease) and operate locomotives and are part of the
national freight and passenger rail network. The Associations and their members therefore have a
significant interest in this rulemaking. [EPA-HQ-OAR-2022-0985-1492-A1, p. 2]

The freight rail industry is not a combination of discrete, unconnected railroads. Rather, it is a
single interconnected system of six Class I railroads and hundreds of short line railroads that own
and maintain over 160,000 route-miles of track throughout North America. In most areas of the
United States where passenger railroads operate, they do so over track owned by the freight
railroads. [EPA-HQ-OAR-2022-0985-1492-A1, p. 2]

It is not just the track that is connected: approximately 5 to 10% of the line-haul locomotives
being operated by the six Class I railroads are owned or leased by another railroad, a practice
known as "locomotive run-through interoperability." This allows the railroads to maximize the
efficiency of locomotive use in moving freight trains and reduces transportation time by
eliminating the need to exchange locomotives when moving from one railroad's line to
another's. As a result, it is common to see line-haul locomotives from railroads in the United
States, Canada, and Mexico operating far from the owning railroad's tracks. It would not be
uncommon to see a CPKC or Norfolk Southern locomotive operating on track in California
owned by BNSF or Union Pacific. The Class I freight railroads manage their operations with a
focus on efficiency by pulling a single train across long distances and through many states,
thereby reducing the idling and switching of locomotives. For example, it is a regular occurrence
for trains to leave Chicago, Illinois, for a destination in California without a single change to the
locomotive(s) pulling that train. [EPA-HQ-OAR-2022-0985-1492-A1, p. 3]

A key factor in maximizing locomotive interoperability is the minimization of technical and
operational differences among locomotives in each railroads' fleet. Increasingly, railroads not
only operate each other's locomotives but also perform routine maintenance on other carriers'
locomotives to minimize non-productive time involved in returning a locomotive to its owning
railroad for maintenance. [EPA-HQ-OAR-2022-0985-1492-A1, p. 3]

It is for these precise reasons, and the overall interoperability of the North American rail
network, that Congress has passed many laws making clear that railroad regulation must occur at
the national level and preempting the regulation of the rail industry by state and local
jurisdictions.4 Congress recognized that if the rail network is going to function safely and
efficiently while meeting the needs of the nation's supply chain, railroads cannot be subject to a
patchwork of different state and local regulations across the country. This is why, in Section 209

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of the Clean Air Act, Congress expressly prohibited individual states from "adopting] or
attempting] to enforce any standard or other requirement relating to the control of emissions"
from "new locomotives or new engines used in locomotives."5 While the regulation of non-new
locomotives and locomotive engines was not categorically preempted by the statute, the law does
require states to obtain waivers from EPA for such regulations. Notably, as EPA recognized in
1998 when it published its implementing regulations, and recognizes again now, the statute
prohibits EPA from granting waivers to states seeking to regulate non-new locomotives or non-
new locomotive engines in a manner that would significantly affect the design and manufacture
of new locomotives or new locomotive engines.6 [EPA-HQ-OAR-2022-0985-1492-A1, p. 3-4]

4 See, e.g. United Transp. Union v. Long Island R.R., 455 U.S. 678, 688 (1982) ("the Federal Government
has determined that a uniform regulatory scheme is necessary to the operation of the national rail system.").

5 42 U.S.C. § 7543(e)(1)(B). The Clean Air Act is not the only federal statute that preempts state regulation
of the rail industry. Congress has enacted multiple statutes that preempt attempts by state and local
authorities to regulate railroad operations, including the Interstate Commerce Act, as amended by the ICC
Termination Act of 1995 ("ICCTA") and the Locomotive Inspection Act. 49 U.S.C. § 10501(b); 49 U.S.C.
§ 20701. Through these statutory schemes, Congress recognized that a patchwork of state and local
regulations attempting to regulate different aspects of the rail industry is unworkable and would interfere
with interstate commerce and the global supply chain.

6 42 U.S.C. § 7543(e)(2); 88 Fed. Reg. 26096 (April 27, 2023).

Although the Proposed Rule removes the categorical preemption of certain types of state
regulations EPA has, to date, deemed likely to significantly affect the design and manufacture of
new locomotives or new locomotive engines, EPA is still required to evaluate applications for
waiver on a case-by-case basis against the same statutory limitation.7 And while EPA repeatedly
notes "developments since 1998," the same important realities that underlay EPA's 1998
decision to create categories of preempted state regulations continue to apply. Clarity in the
scope of preemption remains important. Locomotives remain very long-lived assets.
Remanufactured engines continue to improve the emissions performance of locomotives. And it
remains the fact that a locomotive may travel through 48 states, Canada, and Mexico, and
conflicting state requirements can interfere with the national rail network in significant ways.

This is the problem Congress specifically prevented through the inclusion of Section 209(e) in
the Clean Air Act and the various other statutes that reserve regulation of the rail industry solely
to the federal government. EPA's pivot to a case-by-case approach to waiver requests will not
obviate these critical considerations. [EPA-HQ-OAR-2022-0985-1492-A1, p. 4-5]

7 88 Fed. Reg. 26096 (April 27, 2023).

Organization: Westinghouse Air Brake Technologies Corporation (Wabtec)

In summary, Wabtec's comments conclude that: (1) EPA should not remove the list of
preempted state-level controls from 40 C.F.R. 1074.12(b) of its federal preemption rules for new
locomotives and new locomotive engines; (2) EPA should not permit state-level controls that
affect the design or manufacture of new locomotives or new engines used in locomotives; and
(3) EPA should require notice-and-comment rulemaking regarding any new state-level controls
and should obtain OEM input on any such controls. [EPA-HQ-OAR-2022-0985-1580-A1, p. 2]

IV. EPA'S PROPOSED FEDERAL PREEMPTION REVISIONS MUST BE DESIGNED
TO PREVENT A PATCHWORK OF STATE AND LOCAL REGULATIONS

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Wabtec is concerned that proposed revisions to EPA's federal preemption regulations could
create an untenable patchwork of locomotive state and local regulatory requirements. Congress
expressly preempted state and local governments from adopting or enforcing "any standard or
other requirement relating to the control of emissions from . . . new locomotives or new engines
used in locomotives" in Section 209(e) of the Clean Air Act ("CAA").16 EPA established
implementing preemption regulations accordingly, and defined "new" locomotives to include
both newly manufactured and existing locomotives that are remanufactured or rebuilt, which has
provided important stability and predictability to OEMs and their customers and facilitated
further investments and improvements across the rail industry.17 [EPA-HQ-OAR-2022-0985-
1580-Al,pp. 8-9]

16 See 42 U.S.C. § 7543(e).

17 See 40 CFR § 1033.901.

Congress and EPA recognized that a predictable federal program to address manufacturing,
remanufacturing, and in-use compliance of locomotive emissions provides the rail industry
regulatory certainty. Any revisions to EPA's federal preemption regulations must ensure that the
federally-uniform locomotive emissions program continues and locomotive manufacturers and
rail operators are not unduly burdened by state and local requirements. [EPA-HQ-OAR-2022-
0985-1580-A1, p. 9]

A. State-Level Controls Over New Locomotives or New Locomotive Engines Will Greatly
Impede the Rail Industry

State-level controls impacting new locomotives and new engines used in locomotives, such as
California's In-Use Locomotive Regulation, will adversely impact rail operations in surrounding
states and interstate rail operations, and have significant practical and legal implications for the
rail industry - both OEMs and railroad operators. The U.S. railroad system includes complex
infrastructure of nearly 140,000 miles of track across 49 states and the District of Columbia.18
Wabtec estimates that there are at least 1,000 locations where the railroad system crosses state
lines.19 The current uniform federal regulatory structure allows seamless passage of locomotives
and their cargo (freight or passenger) across state lines. [EPA-HQ-OAR-2022-0985-1580-A1, p.
9.] [See Docket Number EPA-HQ-OAR-2022-0985-1580-A1, page 10, for Figure of Class 1,
Passenger, and Main Line Rail routes in the continental United States.]

18 U.S. Department of Transportation, Federal Railroad Administration, The Freight Rail Network,
https://railroads.dot.gov/rail-network-development/freight-rail-

overview#:%20~:text=The%20Freight%20Rail%20Network.freight%20svstem%20in%20the%20world.

19 This a low-end estimate based on data analysis from the Federal Railroad Administration.
(https://railroads.dot.gov/crossing-and-inventorv-data/grade-crossing-inventorv/highwavrail-crossing-
database-files'). However, the true number may be much higher using different data.

This seamlessly integrated network would be significantly disrupted if states are permitted to
establish state-specific locomotive controls that affect new locomotives and new engines used in
locomotives. Railroads with interstate operations, for example, would be forced to ensure their
interstate-bound locomotives comply with the most stringent state requirements along a given
route for every consist. To comply, railroads would need to either (1) invest significant resources
to create new infrastructure for switching out locomotives at certain state crossings, or
(2) purchase locomotives capable of complying with the most stringent of varying state

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regulations where they have interstate railroad operations. [EPA-HQ-OAR-2022-0985-1580-A1,
P- 10]

First, switching out locomotives at certain state crossings is not feasible. Train cargo cannot
be easily transferred from one consist to another. Assembling a train consist requires large rail
yards, complex infrastructure, and trained personnel. Line-haul locomotives are attached to cargo
at yards and may be placed in the middle of the consist to provide the train with distributed
power. Bringing a train to a full stop in order to switch out every locomotive at a state crossing
would physically slow down cargo, while increasing railroad operation costs, complexity, and
staffing needs. Such switching operations also would waste energy and increase
emissions. [EPA-HQ-OAR-2022-0985-1580-A1, p. 10]

Second, ensuring a locomotive complies with the most stringent of many varying state
regulations is impractical and directly impacts OEMs like Wabtec. California's In-Use
Locomotive Regulation (discussed further in Section V, below), for example, would require any
locomotive operating in California with an engine build date of 2030 or later to operate in a zero-
emission configuration. Railroads with interstate operations purchasing new model year 2030
and later locomotives will need to ensure that their locomotives operate in a zero-emission
configuration in California. OEMs must therefore design and manufacture new locomotives
and new locomotive engines to comply with this California-specific standard rather than the
uniform federal standard. California's rule therefore impermissibly affects the design and
manufacture of new locomotives and new locomotive engines and is preempted. [EPA-HQ-
OAR-2022-0985-1580-A1, pp. 10-11]

B. EPA Should Ensure that State-Level Controls are Subject to Case-by-Case Evaluation
Through Public Notice and Comment

Because Wabtec designs, manufactures, and services freight and passenger rail equipment and
technology, Wabtec is well positioned to offer EPA valuable insight and technical expertise
about proposed state-level locomotives or locomotive engine controls. EPA specifically
requested comment about potentially "removing the language in 40 CFR 1074.12(b)."21 EPA
stated that any nonroad authorization requests from California "under 40 CFR 1074.101 through
1074.115 would still be evaluated by a case-by-case basis" through the mandatory public
comment provisions under those sections.22 EPA also requested comment on the "extent there
would be public benefit if [EPA] were to retain the current regulatory text."23 [EPA-HQ-OAR-
2022-0985-1580-A1, p. 11]

21 88 FR 25926, 26095 (Apr. 27, 2023).

22 Id.

23 Id.

Wabtec urges EPA not to change 40 C.F.R. 1074.12(b). Section 1074.12(b) lists the types of
standards and requirements that states are preempted from adopting or enforcing, including
"emission standards, mandatory fleet average standards, certification requirements, retrofit and
aftermarket equipment requirements, and nonfederal in-use testing requirements."24 EPA asserts
that removing this language will stop unnecessarily discouraging states from enacting
permissible state-level locomotive regulations. However, the majority of enumerated standards
and requirements in section 1074.12(b) go to the heart of "control of emissions from . . . new

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locomotives or new engines used in locomotives" and are reserved for federal regulation under
the Clean Air Act.25 Removing 1074.12(b) would encourage otherwise preempted state
regulatory proposals, make less clear the limits of state-level controls, and send the wrong
message to OEMs and the rail industry about the primacy of federal locomotive regulations and
the associated regulatory certainty on which these stakeholders rely. [EPA-HQ-OAR-2022-0985-
1580-A1, p. 11]

24 40 C.F.R. § 1074.12(b).

25 42 U.S.C. § 7543(e)(1)(B).

If EPA were to remove Section 1074.12(b), Wabtec supports EPA's commitment to "include
evaluation of the temporal nature of any submitted state controls as part of its evaluation of any
authorization request under 40 CFR 1074.101 through 1074.115."26 Wabtec respectfully submits
that EPA should require that state-level control authorization requests expressly address useful
life and other associated considerations. OEMs and railroad operators will be well positioned to
provide meaningful and comprehensive input to EPA on the temporal aspects of proposed state-
level controls. [EPA-HQ-OAR-2022-0985-1580-A1, p. 11]

26 88 FR 25926-01, 26096.

Wabtec supports maintaining the existing procedural safeguards in Part 1074 Subpart B,
which requires that EPA "provide notice and opportunity for a public hearing" if California
requests authorization to enforce any standards regarding non-new locomotives or non-
new engines used in locomotives.27 This process ensures that potentially affected stakeholders
can evaluate and provide critically important input to EPA. Locomotive and locomotive engine
manufacturers — like Wabtec — are uniquely suited to offer technical expertise because they
design and manufacture products to comply with applicable regulatory requirements. In
particular, manufacturers are best positioned to speak to whether a proposed action will have the
practical effect of imposing a "standard or other requirement related to the control of emissions
from . . . [n]ew locomotives or new engines used in locomotives" that the Clean Air Act
prohibits.28 Transparent, open, and informed decision-making is crucial to ensuring that the
North American railroad system is regulated in the most safe, effective, and sustainable manner
possible. [EPA-HQ-OAR-2022-0985-1580-A1, pp. 11 - 12]

27 40 C.F.R. § 1074.101.

28 42 U.S.C. § 7543(e)(1)(B).

Allowing stakeholders to comment on EPA proposals to authorize state locomotive and
locomotive engine actions will also allow EPA to develop a robust administrative record.
Locomotive regulation decisions have broad and long-lasting impacts given the nature of the rail
industry and the longevity of locomotives, and implicate many issues, ranging from
technological feasibility to rail industry economics and funding impacts. Wabtec therefore
respectfully submits that having a robust administrative record benefits all stakeholders and
furthers the Agency's commitment to transparency. [EPA-HQ-OAR-2022-0985-1580-A1, p. 12]

C. EPA's State-Level Control Determinations Benefit from OEM Input

EPA's Proposed Rule discusses two post-1998 emission control examples that states currently
may not impose on locomotives through 133% of their useful life under 40 C.F.R. Section

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1074.12(b).29 EPA believes the two examples may "not significantly affect the design or
manufacture of a new locomotive or locomotive engine" and thus could be the type of state-level
control of non-new locomotives that would be permissible under Section 209(e).30 Wabtec
explains below why it generally agrees with EPA's conclusions for one example, but disagrees
with EPA on the other, underscoring why OEMs must be able to opine whether proposed state-
level controls impact on new locomotive or locomotive engine design and manufacture and may
be preempted under Section 206 of the Clean Air Act. Wabtec supports EPA's public notice and
comment process to ensure a robust administrative record is developed related to the impact on
the design and manufacture of new locomotives and new locomotive engines when EPA is
determining whether such state controls are preempted. [EPA-HQ-OAR-2022-0985-1580-A1,
p. 12]

29 88 FR at 26094-95 (Section X.C).

30 Id. at 26095.

1. Requiring Auxiliary Power Units Would Affect New Locomotive Design and Manufacture

EPA asserts in the Proposed Rule that requiring "retrofitting of an auxiliary power unit (APU)
to support engine shutdown for idle reduction "might not be preempted."31 An APU enables a
locomotive's main engine to shut down while maintaining power to auxiliary functions (e.g.,
air brake pressure, battery state of charge). EPA believes requiring an APU retrofit "would not
significantly affect the design or manufacture of a new locomotive or new locomotive
engine."32 [EPA-HQ-OAR-2022-0985-1580-A1, pp. 12 - 13]

31 Id.

32 Id.

Wabtec respectfully disagrees with EPA's assessment.33 Accommodating an APU retrofit
could implicate the locomotive engine's design given an engine's space constraints, weight
considerations, piping configurations, and logistical standards. A locomotive first must have an
engine shutdown timer to be compatible with an APU. A number of locomotives and locomotive
engines in operation do not have engine shutdown timers and not all non-new engines and
locomotives can accommodate an APU retrofit. This can be due to space constraints and
logistical challenges such as fueling an APU. Even when an APU uses the same fuel tank as the
main locomotive, the APU takes up physical space on the locomotive. An APU retrofit could
involve re-routing a locomotive's existing piping and wiring. It may also require changing the
locomotive engine's control logic, such as the algorithmic programming that determines when to
turn an APU on or off based on engine temperature, air pressure, or other operational
measures.34 [EPA-HQ-OAR-2022-0985-1580-A1, p. 13]

33 Wabtec recognizes that EPA was assessing an APU retrofit requirement in the hypothetical without
doing a full analysis of what would be required for all locomotives to actually be retrofitted. Id. EPA made
this clear by stating, for example, "there may be sufficient space and fluids onboard to accommodate this
component without disrupting the existing equipment or the design of new remanufacturing kits," leaving
open the possibility that might not be the case. Id. (emphasis added).

34 While Wabtec has not performed the studies necessary to determine the compatibility of Wabtec -
manufactured locomotives and locomotive engines with an APU retrofit, these observations and
considerations are based on Wabtec's technical expertise and experience.

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2. Requiring New Load Control Calibration Strategy Could Affect New Locomotive Design
and Manufacture

According to EPA, requiring the "installation of new load control calibration strategy to better
manage load on the main engine while the locomotive is in line-haul service" could be a
permissible, non-preempted state-level control.35 Wabtec generally agrees with EPA's
assessment that in some circumstances requiring non-new locomotives to install a load control
calibration strategy or system to better manage load on the main engine during line-haul service
may not affect the design or manufacture of a new locomotive or locomotive engine. However,
there may be technical considerations due to the age and configuration of the particular
locomotive control systems that may inhibit the ability to install such systems on all non-new
locomotives. [EPA-HQ-OAR-2022-0985-1580-A1, p. 13]

35 88 FR at 26095.

For example, as EPA is aware, Wabtec offers the Trip OptimizerTM control system to
accomplish these tasks.36 Trip OptimizerTM generally does not require a locomotive or engine to
have any particular mechanical attributes. Trip OptimizerTM typically can be deployed by
installing new software with a few hardware components. However, depending on the age and
version of the locomotive control system, there could be significant upgrades, or even
replacement, of certain hardware and software to be compatible with an energy management
system like Trip OptimizerTM. In addition, there have been significant improvements to
locomotive telecommunication systems from satellite systems to the cellular network, and now,
today's locomotives are using the Positive Train Control network system. It is possible that
telecommunication systems on non-new locomotives may not be compatible with the energy
management software's telecommunication system. Lastly, Wabtec's Trip OptimizerTM solution
does require adequate space on the locomotive to install certain hardware. Depending on the age
and type of locomotive, it may be necessary to remove obsolete equipment to make room for
such hardware. As EPA looks to evaluate state-level controls on a case-by-case basis, it will be
important to consider the OEM's technical considerations. [EPA-HQ-OAR-2022-0985-1580-A1,
pp.13 - 14]

36 Id. at fn.1036; Wabtec Corp., Trip OptimizerTM, httos://www.wabteccorp.com/digital-
intelligence/energy-management/trip-optimizer.

D. EPA Should Revise its Regulations to Provide Expressly that State Level Controls May
"Not Significantly Affect the Design and Manufacture of New Locomotives or Engines"

EPA's action is premised, in part, on the ostensible need "to better align our regulatory text
with the plain language of the Clean Air Act to provide regulatory space for state controls that do
not inappropriately affect the design and manufacture of new locomotives or new engines used in
locomotives."37 Wabtec agrees with EPA that state-level controls may not affect the design or
manufacture of new locomotives or new engines used in locomotives. However, Wabtec is
concerned that EPA's proposed revisions fall short of providing the rail industry and other
stakeholders that assurance. Wabtec therefore respectfully requests that if EPA revises its Part
1074 preemption regulations, EPA should incorporate an express requirement that state-level
controls may not "significantly affect the design and manufacture" of new locomotives and new
engines used in locomotives into the "Procedures for Authorization" in Sections 1074.101-
1074.115. [EPA-HQ-OAR-2022-0985-1580-A1, p. 14]

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37 88 FR 25926-01, 26092.

VI. FEDERAL REGULATION CAN ADDRESS LOCAL AIR QUALITY ISSUES

Wabtec respectfully submits that existing federal regulations provide workable and uniform
mechanisms to address local air quality issues and GHG emissions. Existing locomotive
standards, such as Tier 4 standards, can continue to reduce NOx, PM, and GHG emissions, and
OEMs and railroads have already developed and implemented new equipment and operating
technologies accordingly. By using existing standards to address air quality and emissions, EPA
can take action that the commercial rail market is ready to implement and capable of deploying
at scale. [EPA-HQ-OAR-2022-0985-1580-A1, p. 18]

EPA Summary and Response:

Summary:

The American Free Enterprise Chamber of Commerce ("AmFree") asserts first that CAA
section 209(e) itself is unconstitutional and second that EPA has failed adequately to explain its
reasons for its regulatory amendments.

Wabtec raised many issues, the first of which urges EPA not to change 40 C.F.R. 1074.12(b).

Wabtec provided a preliminary evaluation of the impact of requiring APUs or new load
control calibration strategies on the design and manufacture of new locomotives and engines.
They did not believe APU's could be added to locomotives without affecting the design of new
locomotives, but agreed that changing load controls calibration strategies could.

Wabtec also expresses concerns that the nationally integrated rail network and the stability of
a Federally-uniform regulatory program would be disrupted if states were permitted to establish
state-specific locomotive controls that affect new locomotives and new engines used in
locomotives. AAR similarly asserts that conflicting state requirements could interfere with the
national rail network, and that Congress intended to prevent that problem with the inclusion of
CAA section 209(e).

Wabtec requested EPA to consider useful life and associated time-related aspects of a state
control measure in its review of future authorization requests.

Wabtec further requests EPA to incorporate an express requirement that state-level controls
may not "significantly affect the design and manufacture" of new locomotives and new engines
used in locomotives into the "Procedures for Authorization" in Sections 1074.101-1074.115.

Response:

We disagree with AmFree that CAA section 209(e) is unconstitutional.3 The preemption
framework in Section 209 falls within Congress's plenary Commerce Clause power. In
employing this power to regulate air pollution, Congress may preserve pre-existing State
programs; it is not obliged to preempt them indiscriminately. Moreover, Congress appropriately

3 The commenter also suggests, without elaboration, that the regulation itself is unconstitutional. However, as we
explain in the preamble, the final rule revises the regulation to align with the text of the statute. The regulation is not
conferring on California additional authority in excess of what Congress itself conferred in enacting section 209(e).

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recognized the benefits for the nation to be derived from permitting California to improve upon
"its already excellent program of emissions control" and continuing to serve as a forum for
innovation. Motor & Equip. Mfrs. Ass 'n v. EPA, 627F.2d 1095, 1109-10 (D.C. Cir. 1979)
(MEMA I). It also appropriately recognized the benefits to be derived from allowing California to
address the State's particularly severe air quality problems.

The regulation of mobile source emissions in Clean Air Act Title II, including the preemption
framework in Section 209, is an appropriate exercise of Commerce Clause power.4 The
Commerce Clause power plainly encompasses Federal regulation of air pollution. Miss. Comm 'n
on Env't Quality v. EPA, 790 F.3d 138, 180-83 (D.C. Cir. 2015). Consequently, the only
constitutional question presented is whether "Congress acted rationally in adopting" this specific
preemption framework. Hodel v Va. Surface Mining & Reclamation Ass 'n, 452 U.S. 264, 276
(1981). There is no bar "expressed in plain terms" precluding Congress from making reasonable
preemption distinctions between states or the regions they represent. Gibbons v. Ogden, 22 U.S.
1, 196 (1824). The Constitution provides very few promises of equality among the states, and it
articulates those with particularity. For example, it provides for uniform duties, imposts, and
excises throughout the United States. U.S. Const, art. I, § 8, cl. 1. It provides for uniform
naturalization and bankruptcy regulation, and that no preferences shall be given to the ports of
one state over those of another. Id. art. I, § 8, cl. 4; § 9, cl. 6. These specific guarantees of equal
treatment reflect the absence of any more general principle that Congress's enactments must
broadly provide for identical standards across different states.

The Commerce Clause is not among the provisions for which the Constitution prescribes a
need for geographic uniformity. Its text makes as much clear, allowing Congress "[t]o regulate
commerce ... among the several States." U.S. Const, art. I, § 8, cl. 3. The Supreme Court has
thus pronounced: "There is no requirement of uniformity in connection with the commerce
power ... such as there is with respect to the power to lay duties, imposts and excises." Currin v.
Wallace, 306 U.S. 1, 14 (1939); see also Hodel, 452 U.S. at 332 (a claim of arbitrariness in
evaluating exercise of Commerce Clause authority "cannot rest solely on a statute's lack of
uniform geographic impact"). Thus, while a "guarantee of uniformity in treatment amongst the
states cabins some of Congress' powers," "no such guarantee limits the exercise of Commerce
Clause Power." NCAA v. Governor ofN.J., 730 F.3d 208, 238 (3d Cir. 2013), abrogated on other
grounds by Murphy v. NCAA, 138 S. Ct. 1461 (2018). "This only makes sense: Congress'
exercises of Commerce Clause authority are aimed at matters of national concern and finding
national solutions will necessarily affect states differently." Id. at 238.

Consistent with these principles, Congress may rationally create principled preemption
distinctions when creating new federal programs. The United States Code is replete with
examples where Congress elected to treat states disparately with respect to preemption, either by
including grandfather provisions or otherwise. For example, Congress exempted Texas'
intrastate electric grid from the full panoply of federal public utility regulation, thereby allowing
Texas alone to retain certain sovereign authority over power transmission not enjoyed by any
other state. 16 U.S.C. §§ 824k(k), 824p(k), 824q(h), 824t(f). And beyond differentiating with
respect to preemption, Congress routinely legislates in other ways intended to benefit and

4 See EPA Br. 34, Ohio v. EPA, No. 22-1081 (D.C. Cir. Jan. 13, 2023). While EPA's brief in Ohio v. EPA addresses
the constitutionality of the preemption framework in section 209(b), section 209(e) is constitutional for substantively
similar reasons.

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empower only certain states. For example, Congress has created numerous regional
commissions, such as the Appalachian Regional Commission, that are partnerships between the
Federal government and selected states to foster regional development. See 40 U.S.C. Chapters
143,153.

In one distinct area of federal power outside of the Commerce Clause context, the Supreme
Court recognized that principles of equal sovereignty may operate to limit certain exercises of
Congress's power. Specifically, in Shelby County, Ala. v. Holder, 570 U.S. 529 (2013^ (Shelby
County) the Court held that equal-sovereignty principles applied to limit Congress's Fifteenth-
Amendment authority to impose disparate restrictions on state election procedures. The
circumstances in Shelby County are not comparable to those here. Indeed, that case makes clear
that equal-sovereignty principles do not constrain ordinary Commerce Clause legislation. In
Shelby County, the Supreme Court took pains to emphasize the "extraordinary" nature of the
Voting Rights Act's preclearance provisions. 570 U.S. at 545. Those provisions required a
disfavored small subset of states to obtain federal permission before any of their laws related to
voting could take effect; indeed, the Court understood the provisions to constrain those states
from even "enacting" such laws. Id. at 534-35. Such requirements intruded into a sensitive area
of state policymaking - local election regulation - that had traditionally been the exclusive
province of the states. In that sensitive and specific context, the Supreme Court found a
"principle of equal sovereignty" to be "highly pertinent." Id. at 530.

The principles of federalism that animated the heightened standard applied in the voting
procedure context do not apply to the regulation of air pollution from mobile sources. Unlike
Congress's Article I powers, the Fifteenth Amendment operates directly on states and displaces
state powers historically recognized as core sovereign ones. Concerns about "federal intrusion
into sensitive areas of state and local policymaking," id. at 545, have considerably less salience
where, as here, Congress is exercising the quintessentially federal power of regulating interstate
commerce. This principle has special force in the present context, as air pollution - by its nature
- crosses state borders. See EPA v. EMEHomer City Generation, L.P., 572 U.S. 489, 496
(2014).

And unlike the situation present in Shelby County, neither Section 209(e) nor California's
potential regulatory efforts could impose any sovereignty burden. In Shelby County, Congress
had singled out a handful of states for disfavored treatment, obligating them to take additional
steps not required of other states. In contrast, Section 209(e)(2) enhances state sovereignty in a
regulatory area where states otherwise would have retained no power. Indeed, under Section
209(e)(2)(B), which allows other states to opt-in to California standards for non-new
locomotives if authorized by EPA, Congress increased the regulatory options available to all
states - while requiring nothing of states that prefer to have locomotive emissions in their
borders subject only to the federal standards for new locomotives. The preemption exception for
California is thus nothing like the "extraordinary departure from the traditional course of
relations between the States and the Federal Government" described in Shelby County. 570 U.S.
at 545.

Even in the far more sensitive context of state voting procedures, the Supreme Court has
affirmed that principles of equal sovereignty do not operate "as a bar on differential treatment."
Shelby Cnty., 570 U.S. at 544 (citation omitted) (emphasis in original). Congress's choices may
still be upheld if the legislation addresses exceptional conditions and there is "a showing that a

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statute's disparate geographic coverage is sufficiently related to the problem that it targets." Id. at
542 (quoting A'w. AustinMun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)). Even if
equal-sovereignty principles applied here in the same manner as in Shelby County, Section
209(e) would easily clear this bar. Here, the differentiated geographic preemption coverage
within section 209 is "sufficiently related to the problem that it targets" - i.e., ameliorating
threats to public health and welfare caused by mobile source pollution. Id. Commenters fail to
demonstrate otherwise. Despite Shelby County, they rely exclusively upon their theory that
equal-sovereignty principles categorically bar differentiated treatment of states. Commenters
advance no alternative fact-based argument that Section 209 fails a "sufficiently-related"
standard, much less the applicable rational-basis standard.

Regarding AmFree's contention that the stated rationale for this rule revision does not
sufficiently address the concerns underlying the 1998 rule, EPA disagrees. As explained in
section IV of the preamble, EPA's final rule aligns with the plain text of the CAA, is well
supported by the factual record including developments since the 1998 final rule, and better
achieves the legislative intent of providing for exclusive Federal authority for the regulation of
new locomotives and new locomotive engines while preserving the opportunity for California to
obtain authorization to regulate non-new locomotives and engines under its state rulemaking
authority. We further expand on the preamble response in this Response to Comments document.

As explained in the proposal, since the 1998 rule was adopted there have been significant
changes in technology and some forms of emission control are possible today that would not
have been in the past. The NPRM explained our reasons for revisiting our prior categorical
conclusions, and we stand by that rationale in the final rule. In reconsidering our earlier
regulations, the EPA found examples of recently-developed technologies, methods, and practices
precluded from authorization under the 1998 rule, that do not necessarily affect the design of
new locomotives or locomotive engines. Our intention with this action is not to evaluate or
consider every possible action that states may try to adopt. Specifically, we are not in this action
evaluating for purposes of CAA section 209(e)(2) any aspect of any specific state regulation
currently under development by California, and therefore are not responding to any commenter's
points raised regarding any specific rule at this time. Rather, now that we have determined that
our prior categorical conclusions listed in section 1074.12(b) are no longer necessarily correct in
all cases we are adjusting our regulations to not preclude evaluation of possible future waiver
requests. Hence, determinations regarding whether a state rule addressing non-new locomotives
or engines impermissibly relates to control of emissions from new locomotives or engines can be
made on a case-by-case basis.5

We disagree with Wabtec's first argument that the preempted state-level controls listed at 40
CFR 1074.12(b) should not be removed. As explained above and in section IV of the preamble,
EPA has identified sufficient reasons for removing this regulatory provision. Moreover, by their
own preliminary analysis and comments, emissions control technologies exist that do not affect

5 The commenter also asserts that a policy change is unwarranted in light of the reliance interests accrued since the
1998 rule. However, the commenter fails to detail such reliance interests with reasonable specificity, precluding
EPA's ability to specifically respond to this aspect of the comment. See CAA section 307(d)(7)(B). In any event,
even assuming reliance interests have accrued, which EPA disputes, EPA's rationale more than satisfies the legal
requirements for making a policy change. S qqF.C.C. v. Fox Television Stations, Inc., 556U.S. 502, 515 (2009)
(requiring "a more detailed justification" where a "prior policy has engendered serious reliance interests that must be
taken into account").

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the design of new locomotives and thus could potentially, depending upon how a state rule was
scoped and structured, be allowable methods under section 209(e) that would not impermissibly
relate to control of emissions from new locomotives or engines. As other comments noted, and
described in the proposal, subject to EPA authorization under CAA section 209(e)(2) California
retains the right to seek to regulate non-new locomotives and locomotive engines under the
CAA. EPA's rule revision provides latitude for the development of state approaches to
addressing emissions from non-new locomotives and their engines.

This final revised rule aligns our regulations to the CAA and allows for an authorization to be
requested and evaluated by EPA. It does not remove or change the statutory criteria by which an
authorization will be evaluated or granted. Any such request received by the EPA will be
evaluated on a case-by-case basis against statutory requirements, subject to the procedural
requirements of section 209(e)(2)(A). The EPA is not in this action reaching any conclusions that
any version of the types of standards previously preempted under 1074.12(b) may or may not be
permitted. Such evaluations will be undertaken separately. Rather we are ensuring that waiver
requests can be submitted to the agency and that EPA will be able to fairly evaluate them on a
case-by-case basis on their merits and against statutory requirements, without categorically
precluding entire classes of controls from possible authorization.

We appreciate Wabtec's technical input on the potential technological approaches mentioned
by EPA in the proposal. We would note however, that, like EPA, Wabtec did not conduct a full
analysis of all potential applications of APU. While highlighting that it may be challenging to
accomplish, their analysis does not demonstrate that APU retrofits could not work for any
locomotive without impermissibly relating to control of emissions from new locomotives or
engines. To the extent Wabtec believes that a future authorization request for APU-related
controls runs afoul of the Clean Air Act, Wabtec could submit its comments on such a future
request and then provide a detailed evaluation of the specific controls.

We disagree with the characterization by Wabtec, AAR, and AmFree that authorizing a future
California regulation addressing non-new locomotives and engines that other states could then
adopt could result in a "patchwork" or "quilt" of potentially conflicting or "competing"
requirements. This is incorrect, as the Federal and California rules would address different
aspects of locomotives. Irrespective of EPA's proposed revisions at 40 CFR part 1074, at most
there could only be two sets of regulations that do not overlap: (1) EPA's Federal regulations
addressing new locomotives and engines, and (2) California's regulations addressing non-new
locomotives and engines.6 In a hypothetical scenario where another state wishes to adopt state-
level locomotive regulations, in addition to EPA's rules addressing new locomotives, such state
must adopt a program with controls identical to those adopted by California and authorized by
EPA. Even in that result, there would be no inconsistency or difference between the Federal
versus the state regulations in the way any particular aspect of locomotives would be addressed -
they would simply regulate different aspects of locomotives and engines, without any
competition or conflict between them, EPA's rules exclusively addressing new locomotives and
engines, and state rules addressing non-new, with no overlap. Consequently, we think the

6 This hypothetical scenario assumes EPA authorizes California's locomotives standards in a future action. EPA is
not authorizing any California regulations for locomotives in today's action or prejudging any future authorization
request. We are offering this hypothetical scenario solely to address the comment's concern about a patchwork of
state locomotives regulations.

45

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"patchwork quilt" analogy used by commenters is misplaced. In this action to revise part 1074,
we take no position on whether any particular state program of controls on emissions from
locomotives would likely be authorized by EPA.

Regarding Wabtec's recommendation that EPA should require notice-and-comment
rulemaking regarding any new state-level controls and should obtain OEM input on any such
controls, EPA's established process for considering requests for authorization includes public
input, including from manufacturers.7 Whenever California files an authorization request, EPA
publishes a notice for public hearing and written comment in the Federal Register. The written
comment period remains open for a period of time after the public hearing. Once the comment
period expires, EPA reviews the comments and the Administrator determines whether the
requirements for obtaining an authorization have been met.8

Regarding Wabtec's request that we consider the useful life of a locomotive and other time-
related aspects of a state control measure in review of future authorization requests, the extent to
which we consider these measures will be dependent upon the specific authorization request and
associated standards, the comments received during the public comment process described
above, and the statutory criteria in section 209(e)(1)(A).

We are not following Wabtec's suggestion to expressly provide in the rule that state controls
may not significantly affect the design and manufacture of new locomotives. The final rule
adheres to the approach of following the statutory language without further elaboration. There is
no statutory requirement to codify this requirement by regulation. As explained in the preamble,
EPA acts well within its discretion in evaluating this issue on a case-by-case basis in
adjudicating individual authorization requests.

4 Miscellaneous Comments Unrelated to Preemption

Comments by Organizations

Organization: American Short Line and Regional Railroad Association (ASLRRA)

Short Line Railroads Are Vital to the Freight Rail Network

Short lines are proud to be part of the U.S. freight rail network - the most environmentally-
friendly way to move freight over land. Railroads account for roughly 40 percent of U.S. long-
distance freight volume but account for only approximately 1.9 percent of transportation-related
emissions according to the U.S. Environmental Protection Agency.4 Additionally, railroads can
move one ton of freight nearly 500 miles per gallon of fuel and are 3-4 times more fuel efficient
than trucks.5 [EPA-HQ-OAR-2022-0985-1563-A1, pp. 1 -2]

7	EPA does not agree with Wabtec that a rulemaking process is necessary for authorization requests. The statute
does not require rulemaking, and Wabtec has failed to articulate a persuasive reason as to why rulemaking is needed,
on top of the notice, comment, and public hearing process, already provided by the statute.

8	See "Vehicle Emissions California Waivers and Authorizations" https://www.epa.gov/state-and-local-
transportation/vehicle-emissions-california-waivers-and-authorizations

46

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4 U.S. EPA, Fast Facts on Transportation Greenhouse Gas Emissions,

https://www.epa.gov/greenvehicles/fast-facts-transportation-greenhouse-gas-emissions (last updated July
14, 2022).

5 Association of American Railroads, Freight Rail and Preserving the Environment,
https://www.aar.org/wp-content/uploads/2020/06/AAR-Sustainabilitv-Fact-Sheet.pdf (October 2022).

Short line railroads are a critical part of the U.S. freight network. The nation's approximately
600 short line carriers provide the first and last mile service for one in every five rail cars moving
each year.6 Operating nearly 50,500 route miles, or about 30 percent of the freight rail mileage in
the U.S., they play a vital role in the transportation network.7 Short line rail service provides
safe, efficient, competitive, and environmentally responsible access to transportation for nearly
10,000 rail customers.8 [EPA-HQ-OAR-2022-0985-1563-A1, p. 2]

6 Short Line and Regional Railroad Facts and Figures. American Short Line and Regional Railroad
Association, 2017; reprint Dec. 2019. Page 1.

7 Id.

8 See Id.; and Webber, Michael. Freight trains are our future. Popular Science, May 9, 2019.
https://www.popsci.com/power-trip-excerpt/. (last visited July 28 2022)

While almost all are considered small businesses, short line railroads come in many shapes
and sizes.9 Some short lines are small but have some centralized functions as part of larger short
line holding companies, some are larger regional railroads with hundreds of miles of track, and
many are small, independent family-owned businesses. Together they represent a diverse,
dynamic and entrepreneurial collection of small businesses that make wise use of the limited
resources available to them. These small businesses operate the most vulnerable segments of the
railroad system and, in many cases, are the only connection for rural businesses to the domestic
and global marketplace. They maintain their viability by competing aggressively for business
from existing and new customers, investing a significant percentage of their revenues, often 25
percent or more, into their rail infrastructure.10 They frequently partner with their customers to
offer rail transportation alternatives that would otherwise be unavailable to those customers, and
they pride themselves on custom, "white glove" service to allow their customers to succeed. The
majority of railroads operating across America's rail network are privately owned and pay for
their own infrastructure - a point of departure from other transportation modes that utilize
publicly funded roads and waterways.11 [EPA-HQ-OAR-2022-0985-1563-A1, pp. 2-3]

9 See 13 C.F.R. § 121.201 and North American Industry Classification System code 482112, "Short Line
Railroad."

10 Facts and Figures, supra, at 3.

11 McGurk, Russ. Five Reasons Freight Rail is an Infrastructure Leader. GoRail, May 14, 2018.
https://gorail.org/infrastructure/five-reasons-freight-rail-is-an-infrastructure-leader.

Short line railroads are further divided into Class II and Class III railroads.12 Class II railroads
have an average revenue of $79 million and employ an average of 204 people.13 The average
Class II railroad operates 48 locomotives and serves 73 customers.14 Class III railroads, the
smallest, represent 84 percent of short line and regional railroad miles. Class III railroads have
the widest range of operations. Half of Class III railroads operate fewer than 47 track miles.15
Class III railroads serve an average of 15 customers per railroad and have an annual total freight
revenue of only $4.7 million. They employ an average of 22 people per railroad. Class III

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railroads have a median of only six locomotives per railroad.16 [EPA-HQ-OAR-2022-0985-
1563-A1, pp. 3-4]

12 See 49 C.F.R. part 1201, General Instructions § l-l(a). The Surface Transportation Board groups
railroads into one of three classes for purposes of accounting and reporting. The class to which any rail
carrier belongs is determined by its annual operating revenues after application of a revenue deflator
adjustment. 49 C.F.R. pt. 1201, § l-l(b)(l). Currently, Class I carriers have annual operating revenues of
over $900 million, Class II railroads have annual operating revenues of less than $900 million but in excess
of $40.4 million, and Class III railroads have annual operating revenues of $40.4 million or less.

13 Facts and Figures, supra, at 13.

14 Id.

15 Facts and Figures, supra, at 9.

16 Facts and Figures, supra, at 12.

Organization: Allergy & Asthma Network et al.

California's unique air quality challenges necessitate that the state be able to set stronger
emissions cleanup measures for locomotives as it does for other vehicles. Diesel-powered line
haul trains, passenger trains and other locomotives create a significant health burden from their
emissions, especially in communities located near railyards. The California Air Resources Board
(CARB) estimates that operational emissions from a single train exceed those of more than 400
heavy-duty trucks 6 [EPA-HQ-OAR-2022-0985-1532-A1, p. 4]

6 California Air Resources Board. Staff Presentation: Proposed In-Use Locomotive Regulation at Slide 4.
April 23, 2023. https://ww2.arb.ca.gov/sites/default/files/barcu/board/books/2023/042723/23-4-lpres.pdf

In April 2023, the California Air Resources Board concluded a rulemaking, the In-Use
Locomotive Standards, to modernize and clean up locomotive emissions through a variety of
operational standards. Combined, these actions represent the single largest share of state actions
identified in the California State Implementation Plan (SIP) to achieve ozone standards by 2037.
The locomotive operations program will achieve over 30 percent of the NOx reductions needed
to meet California's ozone SIP commitments. The rules are projected to result in over 3,000 lives
saved, tens of billions of dollars in public health benefits and a 90% average cancer risk
reduction (cases per million people) in communities nearest California railyards by 2045. [EPA-
HQ-OAR-2022-0985-1532-A1, pp. 4 - 5]

The policies are designed to ensure that locomotives over 23 years old will no longer operate
in California, bringing cleaner engine technologies into the fleet. This is crucial given that Tier 4
engines represent less than 5 percent of the locomotives operating in California today, while Tier
0 - or earlier - engines make up nearly a quarter of in-state locomotives. CARB approved
enforceable idling limits, and created a framework for investment in cleaner technologies. The
policy also includes reporting requirements and a framework for phasing zero-emission
technologies across California rail operations over the coming decades. [EPA-HQ-OAR-2022-
0985-1532-A1, p. 5]

In addition to finalizing this change, we urge EPA to work toward its own more stringent Tier
5 and Zero-Emission standards for locomotive engines to address this major source of air
pollution. [EPA-HQ-0AR-2022-0985-1532-A1, p. 5]

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Organization: American Soybean Association (ASA)

ASA appreciates the recent work of the EPA to convene a working group to address
emissions and reevaluate preemption language as it relates to locomotives. Rail represents one of
the most fuel-efficient methods to transport cargo. According to the Texas A&M Transportation
Institute, railroads have a fuel efficiency of 472 ton-miles per gallon of fuel.4

4 Kruse, C.J.; Farzaneh, R., et al. (2022). A Modal Comparison of Domestic Freight Transportation Effects
on the General Public: 2001-2019.

(https://www.nationalwaterwaysfoundation.org/file/28/tti%202022%20final%20report%202001-
2019%201.pdf)

The U.S. rail network continues to serve as an important, fuel-efficient artery to move
soybeans to ports for export, specifically for those that are exported through the Pacific
Northwest. In total, freight rail moves 20% of the soybean tonnage within the United States.

Across the board, Class I railroads are shifting to biodiesel, renewable diesel, and other
technologies to significantly reduce their emissions. In addition to hauling soybeans and soybean
meal for export, freight rail continues to play an essential role in transporting biomass-based
diesel and soybean oil destined for renewable fuel processing to market. Ensuring streamlined
regulations will ensure transportation of cargo without service delays that could arise from a
patchwork of state locomotive regulations. [EPA-HQ-OAR-2022-0985-1549-A1, pp. 3-4]

Organization: American Thoracic Society (ATS)

For many communities, emissions from train engines, particularly switcher engines, are a
significant modifiable source of local air pollution and GHG emissions. As noted in the proposed
rule, current EPA regulations pre-empt state and municipal governments from requiring the
adoption of readily available emissions control technology in non-new train engines. Because of
the long-life cycle of train engines, blocking states and municipal governments from requiring
these available emissions reductions places significant and long-term air pollution emissions
burdens on local communities. [EPA-HQ-OAR-2022-0985-1517-A1, pp. 4-5]

Organization: Association of American Railroads (AAR), American Short Line and Regional
Railroad Association (ASLRRA)

More specifically, the Associations comment below on EPA's proposal to revise its existing
locomotive preemption regulation implementing Section 209(e) of the Clean Air Act. [EPA-HQ-
OAR-2022-0985-1492-A1, p. 1]

Railroads are the most fuel-efficient way to move freight long distances over land. On
average, railroads are three to four times more fuel efficient than trucks, with a single train
removing several hundred trucks from the nation's congested highways.2 This is important
because the rail industry accounts for roughly 40% of U.S. long-distance freight volume - more
than any other mode. Railroads are also critical to the national and global supply chains and are
an integral part of the nation's transportation infrastructure, while representing only 1.7% of the
nation's transportation-related greenhouse gas emissions.3 [EPA-HQ-OAR-2022-0985-1492-A1,
p. 2]

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2 Association of American Railroads, Freight Railroads & Climate Change (June 2023)
(https://www.aar.org/wp-content/uploads/2023/06/AAR-Climate-Change-2023-Report.pdf).

3 Id.

Organization: California Air Resources Board (CARB)

B. Factual and Legal Background

1. Locomotive Emissions Cause Adverse Public Health Impacts in California, Including in
Disadvantaged Communities, and Impede NAAQS Attainment

Close proximity to rail operations threatens the health of communities throughout California
due to increased exposure to harmful emissions. Diesel-powered locomotives emit a complex
mixture of air pollutants, including diesel PM and gases. The gaseous pollutants include NOx,
which can lead to the formation of ozone and the secondary formation of PM.226 [EPA-HQ-
OAR-2022-0985-1591-A1, p.72]

226 9 Cal. Code Regs., tit. 17, § 93000; CARB, Overview Diesel Exhaust & Health, available at:
https://ww2.arb.ca.gov/resources/overview-diesel-exhaust-and-health.

California has the only extreme nonattainment areas for ozone in the country, South Coast Air
Basin, San Joaquin Valley Air Basin and the Coachella Valley. California also has the only area
in the country still not meeting the 15 micrograms per cubic meter (ug/m3) annual PM2.5
standard established in 1997. [EPA-HQ-OAR-2022-0985-1591-A1, p.72]

The deadly toxic pollution emitted by locomotives is disproportionately concentrated in the
most economically disadvantaged communities in the State. Diesel engine emissions are
classified as a Toxic Air Contaminant that has no threshold exposure level below which no
significant adverse health effects are anticipated from exposure to the identified substance.227
Many of the communities near rail operations throughout California are classified as
disadvantaged by the California Environmental Protection Agency.228 Studies show that people
who live or work near railyards may experience a high level of exposure to diesel PM.229
Economic disadvantage, environmental pollution, and increased health risks are closely tied.
Exposure to diesel particles in disadvantaged communities is, on average, twice the levels
experienced in non-disadvantaged communities.230 Emissions from locomotives are a significant
contributor to air pollution and associated health effects in many impacted communities. [EPA-
HQ-OAR-2022-0985-1591-A1, pp.72-73]

227 CARB, Identified Toxic Air Contaminants, available at:
https://ww2.arb.ca.gov/resources/documents/carb-identified-toxic-air-contaminants.

228 Hazard Assessment.

229 Hazard Assessment, p. 48.

230 CARB, Air Quality Progress in California Communities (July 23, 2016), available at:
https://www.arb.ca.gov/board/books/2016/062316/16-6-2pres.pdf.

For most nonattainment areas in California, to attain the NAAQS ozone standard, all potential
reductions, including reductions in locomotive emissions, must be pursued.231 [EPA-HQ-OAR-
2022-0985-1591-A1, p.73]

231 2022 State SIP Strategy, p. 6.

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The CAA requires U.S. EPA to set and regularly review and revise federal health-based
ambient air quality standards for "criteria pollutants," including PM2.5, NOx, and ground-level
ozone.232 These NAAQS aim to protect public health from air pollution resulting from emissions
of criteria air pollutants and precursors. Depending on whether the air quality in an area meets
the NAAQS for a particular pollutant, U.S. EPA designates the area as being in "attainment" or
"nonattainment." U.S. EPA further classifies areas that are in nonattainment according to the
severity of their air pollution problem, and areas with more severe pollution levels are given
more time to meet the standard while being subject to more stringent control
requirements. [EPA-HQ-OAR-2022-0985-1591-A1, p.73]

232 42 U.S.C. §§7408-7409.

The NAAQS for ozone, established in 2015 and retained in 2020, is an 8-hour standard with a
level of 70 parts per billion, although U.S. EPA recently announced that it may reconsider the
previous administration's decision to retain the ozone NAAQS.233 U.S. EPA is also
implementing the previous 8-hour ozone standard, set in 2008 at a level of 75 parts per billion.
For PM2.5, there are two NAAQS that were set in 1997, revised in 2006 and 2012, and retained
in 2020: an annual standard (12.0 ug/m3) and a 24-hour standard (35 ug/m3). Although U.S.
EPA is currently considering revising the annual standard to within the range of 9.0 to 10.0. U.S.
EPA is also taking comment on an annual PM2.5 standard in the range of 8-11 ug/m3 and a 24-
hour standard of 25 ug/m3.234 [EPA-HQ-OAR-2022-0985-1591-A1, pp.73-74]

233 See U.S. EPA, "Ozone National Ambient Air Quality Standards (NAAQS)," available at:
https://www.epa.gov/ground-level-ozone-pollution/ozone-national-ambient-air-quality-standards-naaqs;
U.S. EPA, "EPA to Reconsider Previous Administration's Decision to Retain 2015 Ozone Standards,"
available at: https://www.epa.gov/ground-level-ozone-pollution/epa-reconsider-previous-administrations-
decisionretain-2015 -ozone.

234 U.S. EPA, Proposed Decision for the Reconsideration of the National Ambient Air Quality Standards
for Particulate Matter (PM), February 3, 2023, available at: https://www.epa.gov/pm-pollution/proposed-
decision-reconsideration-national-ambient-air-quality-standards-particulate; U.S. EPA, "National
Ambient Air Quality Standards (NAAQS) for PM," available at: https://www.epa.gov/pm-pollution/
national-ambient-air-quality-standards-naaqs-pm.

As of May 31, 2021, California had nineteen 8-hour ozone nonattainment areas and the only
three extreme nonattainment areas in the nation are located in the South Coast Air Basin, San
Joaquin Valley, and Coachella Valley of California.235 South Coast Air Basin and San Joaquin
Valley Air Basin currently fail to meet ambient air quality standards for ozone and PM2.5.236 In
the South Coast Air Basin, excess NOx emissions have led to the highest ozone levels in the
nation.237 For the South Coast Air Basin to meet the latest federal ozone standards, overall NOx
emissions need to be reduced to 60 tons per day in 2037, an approximately 80 percent reduction
from 2018 levels.238 [EPA-HQ-OAR-2022-0985-1591-A1, p.74]

235 CARB, 2016 State Strategy for the State Implementation Plan for Federal Ozone and PM2.5 Standards
(March 7, 2017), available at: https://ww2.arb.ca.gov/resources/documents/2016-state-strategy-state-
implementation-plan-federalozone-and-pm25-standards

236 U.S. EPA, Status of California Designated Areas, available at:
https://www3.epa.gov/airqualitv/urbanair/sipstatus/reports/ca areabvpoll.html

237 Ibid.

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238	South Coast Air Quality Management District, 2022 Clean Air Management Plan, Chapter 5, available
at: http://www.aamd.gov/docs/default-source/clean-air-plans/air-aualitv-management-plans/2022-
airqualitv-management-plan/08-

ch5.pdf? sfvrsn=8#:~:text=%E2%80%A2Without%20additional%20control%20measures%2C%20the%20
South%20Coast%20Air.is%2071%20percent%201ower%20than%20the%202037%20baseline

More than half (21 million out of nearly 40 million) of Californians live in areas that exceed
the most stringent 70 ppb ozone standard.239 Further, a disproportionate number of California's
population live in areas that are deemed extreme nonattainment, meaning they are most impacted
by high ozone levels.240 These Californians often live in low-income and disadvantaged
communities that experience greater exposure to diesel exhaust and other toxic air pollutants
compared to surrounding areas. NOx emission reductions are key to reducing ozone and are
especially necessary in the large parts of California that are out of attainment or overburdened by
NOx and ozone pollution. [EPA-HQ-OAR-2022-0985-1591-A1, p.74]

239	U.S. EPA, Status of California Designated Areas, available at:

https://www3.epa.gov/airqualitv/urbanair/sipstatus/reports/ca areabvpoll.html: U.S. Census Bureau,

Annual Estimates of the Resident Population for Counties; California: April 1, 2020 to July 1, 2022,
available at:

https://www2.census.gOv/programs-survevs/popest/tables/2020-2022/counties/totals/co-est2022-pop-
06.xlsx

240	Ibid.

NOx emission reductions are also key to reducing PM2.5 pollution, as NOx contributes to the
formation of secondary PM2.5 and ground level ozone.241 In the San Joaquin Valley, NOx
emission reductions are key to reducing both PM2.5 and ozone air pollution and reaching
attainment.242 [EPA-HQ-OAR-2022-0985-1591-A1, p.75]

241	U.S. EPA, Ground Level Ozone Basics, available at: https://www.epa.gov/ground-level-ozone-
pollution/ground-level-ozone-basics: U.S. EPA, Evaluating the Contribution of PM2.5 Precursor Gases and
Re-entrained Road Emissions to Mobile Source PM2.5 Particulate Matter Emission p.22, available at:
https://www3 .epa. gov/ttnchie 1/conference/ei 13/mobile/hodan.pdf

242	CARB, Staff Report Proposed SIP Revision for the 15 ig/m3 Annual PM2.5 Standard for the San
Joaquin Valley, page 1, August 13, 2021, available at: https://ww2.arb.ca.gov/sites/default/files/2021 -
08/SJV%2015%20ug%20SIP%20Revision%20Staff%20Report%20FINAL.pdf

Given the extraordinary challenges that California is facing to attain and maintain ozone and
PM2.5 NAAQS, substantial emission reductions beyond those currently being achieved by state
regulatory programs are critically necessary. Mobile sources such as trucks and locomotives, and
the fossil fuels that power them, are the largest contributors to the formation of PM2.5, NOx, and
ozone emissions in California. The 2022 State Implementation Plan (SIP) Strategy, which
describes how the state will meet its air quality commitments, states that for California to meet
air quality standards, it is imperative to reduce emissions from locomotives.243 [EPA-HQ-OAR-
2022-0985-1591-A1, p.75]

243	CARB, 2022 State Strategy for the State Implementation Plan, p. 92 (September 22, 2022), available
at: https://ww2.arb.ca.gov/sites/default/files/2022-08/2022 State SIP Strategy.pdf (hereinafter 2022 State
SIP Strategy).

Under the CAA, California is required to submit a SIP for areas that exceed the health-based
NAAQS. The SIPs discuss California's intention and pathway to attaining the standards by
specific dates. As part of the South Coast 2016 Air Quality Management Plan, CARB included a

52

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SIP Strategy which was approved by U.S. EPA that describes CARB's commitment to achieve
the mobile source and consumer products reductions needed to meet federal air quality standards
over the next 15 years.244 Additionally, California Senate Bill 44 signed into law in 2019
acknowledges the ongoing need to evaluate opportunities for mobile source emission
reductions.245 [EPA-HQ-OAR-2022-0985-1591-A1, p.75]

244 CARB, Revised Proposed 2016 State Strategy for the State Implementation Plan (March 7, 2017),
available at: https://www.arb.ca.gov/planning/sip/2016sip/rev2016statesip.pdf

245 Senate Bill 44 (Skinner, Stats. 2019, ch. 297), Medium- and heavy-duty vehicles: comprehensive
strategy (September 23, 2019), available at:

http ://le ginfo .le gislature ,ca. gov/faces/billTextClient. xhtml?bill id=201920200SB44

2. Railroads Continue to Operate Old Locomotives Creating Emissions that Are Projected to
Eclipse Emissions from Trucks

The two Class I railroads operating in California—Union Pacific (UP) and BNSF Railway
(BNSF)—operate approximately 12,000 freight interstate line haul locomotives annually within
the State, representing about 85 percent of the statewide locomotive activity and emissions. UP
and BNSF also operate switcher locomotives, or those traveling around rail yards, representing
about five percent of the statewide locomotive activity and emissions. A much smaller number of
Class II and III railroads, industrial operators, and passenger railroads also operate in the
State. [EPA-HQ-OAR-2022-0985-1591-A1, p.76]

In spite of the wide commercial availability of new, cleaner locomotives that could cut
average emissions by up to 80 percent, locomotive operators have continued to use older, heavily
polluting locomotives. U.S. EPA has adopted 5 emission standards tiers for locomotives, Tiers 0
through 4, with Tier 0 being the least stringent and Tier 4 being the most stringent.246Per U.S.
EPA regulations, a locomotive is classified in an emissions Tier based on its original
manufacture date. But a locomotive may remain in the emissions tier applicable to its original
manufacture date if it is remanufactured, as defined in U.S. EPA's regulations, whereas a freshly
manufactured locomotive would be subject to the Tier 4 standards.247 Class I locomotive
operators in California have remained at a Tier 2 average since 2010, and Class III and Industrial
locomotive operators operate at a Tier 0/0+ average.248 [EPA-HQ-OAR-2022-0985-1591-A1,
p.76]

246 40 CFR § 1033.101.

247 Ibid.

248 CARB, Rail Emission Reduction Agreements, Table: 2021 Fleet Activity Data for the South Coast Air
Basin, available at: https://ww2.arb.ca. gov/resources/documents/rail-emission-reduction-agreements: The
Tier 0-2 standards were made more stringent in 2008 and these current standards are sometimes
differentiated by the previous standards by using a "+" symbol to signify the 2008 standards. Locomotives,
Table 1, April 2009, available at:

https://nepis.epa.gov/Exe/ZvPDF.cgi?Dockev=P100500B.pdf#:~:text=EPA%20has%20estimated%20avera
ge%20emission%20rates%2C%20given%20in.explanation%20of%20which%20standards%20applv%20to
%20which%201ocomotives. See also NPRM at 26,093 (current in-service fleet in the U.S. dominated by
Tier 2 and earlier locomotives).

NOx emission reductions from locomotives have not kept pace with NOx reductions in other
freight transport sectors. Trucks in California have become much cleaner over the last decade
and are moving towards ZE technology. NOx emissions from LDVs, HD trucks, and off-road

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equipment in the South Coast Air Basin have declined by 75 percent since 2000, while emissions
from locomotives and other federally regulated sources have declined by half that amount over
the same period.249 [EPA-HQ-OAR-2022-0985-1591-A1, p.76]

249 CARB, 2020 Mobile Source Strategy, p. 74 (October 28, 2021) available at:
https://ww2.arb.ca.gov/sites/default/files/2021-12/2020 Mobile Source Strategy.pdf

Locomotives are quickly becoming one of the top mobile-source polluters in the State, on a
per transport-container basis.250 By 2030, locomotive emissions are projected to contribute
14 percent of the State's PM2.5 freight emissions and 16 percent of the State's NOx freight
emissions.251 This is due in part to how much progress California has made through the
regulation of other freight sources. For example, HD freight trucking fleets are subject to
regulations that require upgrading to newer trucks with cleaner emissions technologies, while
older, dirtier locomotives using outdated emissions technology continue to operate throughout
the State. CARB staffs analysis concludes that trucks will be the cleaner mode to move freight
this year.252 [EPA-HQ-OAR-2022-0985-1591-A1, p.77]

250 CARB, Draft Truck vs. Train Emissions Analysis (September 2020), available at:
https://ww2.arb.ca.gov/resources/fact-sheets/draft-truck-vs-train-emissions-analvsis (hereinafter Truck vs.
Train Analysis).

251 CARB, 2022 State Strategy for the State Implementation Plan, p. 92 (September 22, 2022), available
at: https://ww2.arb.ca.gov/sites/default/files/2022-08/2022 State SIP Strategy.pdf (hereinafter 2022 State
SIP Strategy).

252 Truck vs. Train Analysis.

Organization: District of Columbia Department of Energy and the Environment (DOEE)

California Rail Preemption

EPA is also proposing to revise 40 CFR 1074 in this rulemaking to ensure that the preemption
of California's adoption of locomotive standards more accurately implements the language found
in the Clean Air Act. DOEE is supportive of this revision. California, through the promulgation
of the "In-Use Locomotive Regulation," is undertaking innovative policies to tackle emissions
from the in-use locomotive fleet. Given that this regulation appears to meet the strict text of the
Clean Air Act, and in the spirit of federal cooperation, DOEE finds EPA's proposal to remove
this preemption timely and beneficial. [EPA-HQ-OAR-2022-0985-1620-A1, p. 2]

Environmental Justice Implications

Reducing rail emissions is important to the District. According to the 2020 National
Emissions Inventory, 7.4% of oxides of nitrogen emissions in the District are from the rail sector.
While that might seem small, half of those emissions are concentrated in the Ivy City rail yard
near Union Station. Ivy City is a historically overburdened community that is a focus for both the
District's and EPA Region 3's environmental justice efforts. Additionally, the Ivy City rail yard
produces approximately three tons of fine particulate matter annually, and a large portion of
those emissions come from switcher trains that operate entirely within the District's borders. It is
exemplary that EPA is moving toward allowing California to implement new approaches to
reduce rail emissions, some of which may be beneficial to the District if they are adoptable by
the District and other states. [EPA-HQ-OAR-2022-0985-1620-A1, p. 2]

-------
Organization: Environmental Defense Fund (EPF)

As EPA has recognized, pollution from locomotives contributes significantly to unhealthy air
quality and climate change and interferes with state and local governments' ability to achieve
and maintain compliance with air quality standards.246 Locomotives directly emit multiple
dangerous air pollutants, including particulate matter, nitrogen oxides, volatile organic
compounds, sulfur dioxide, carbon monoxide, air toxics, and greenhouse gases, as well as
harmful noise. [EPA-HQ-OAR-2022-0985-1644-A1, p. 93]

246 See, e.g., 73 Fed. Reg. 37,095, 37,099-100 (June 30, 2008).

Locomotive pollution is a substantial and growing problem for many regions; cargo volume
and intermodal rail traffic have increased in recent decades and are projected to continue to
grow.247 [EPA-HQ-0AR-2022-0985-1644-A1, p. 93]

247 See, e.g., THE Impact Project, Tracking Harm: Health and Environmental Impacts of Rail Yards 3

(2012), https://envhealthcenters.usc.edu/wp-content/uploads/2016/ll/Tracking-Harm.pdf.

Recent data show that the in-service locomotive fleet continues to be dominated by older,
dirtier locomotives subject to EPA's less stringent emissions standards. Less than a quarter of
today's fleet meets Tier 3 or Tier 4 standards (the most protective standards that were adopted in
2008).248 [EPA-HQ-0AR-2022-0985-1644-A1, p. 94]

248 Proposal at 26093.

Locomotive pollution is also an environmental justice issue. Those living, working, and
attending school near railyards, ports, railways, and other major sources of locomotive pollution
are disproportionately low-income and people of color.249 Research shows, for instance, that
young children of color and low-income children living near a major freight railyard are more
likely to experience asthma-related emergency room visits.250 Locomotive pollution also
adversely affects the health of railroad industry workers.251 [EPA-HQ-OAR-2022-0985-1644-
Al, p. 94]

249 See, e.g., Andrea Hricko et al., Global Trade, Local Impacts: Lessons from California on Health

Impacts and Environmental Justice Concerns for Residents Living near Freight Rail Yards, 11 Int'l J. Envt.

Res. Pub. Health 1914 (2014).

250 R. Spencer-Hwang et al., Association of major California freight railyards with asthma-related

pediatric emergency department hospital visits, 13 Preventive Med. Rep. 73 (2019).

251 See, e.g., Eric Garsick et al., Lung cancer in railroad workers exposed to diesel exhaust, 112 Envt.

Health Perspectives 1539 (2004).

Organization: Hillyard, Caitlin

My husband and I worked hard to save for our first home, which is located along the railroad
tracks. We know our home is next to the tracks (we bought what we could afford where it was
available). But we're not stupid. We expected trains to pass by and we don't mind when they do.
Unfortunately, the railroad uses the tracks for a different, more disruptive purpose - to stage
trains for crew changes, something we didn't know before we purchased our home. Trains with
three or four engines sit there for hours each day emitting diesel fumes less than 500 feet from
our residential block. We've seen over 100 trains since late January 2023. As they idle, we notice

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our throats, eyes and noses become irritated. Diesel fumes are associated with adverse health
outcomes, including many harmful cancers. Because of that, we worry about our long-term
health, as well as the health of the retired people and families with children who live on our
block. We know from our research that we're not the only family to endure this in our state or
across the nation. We would like the railroad to idle trains in another location, away from
residences. The railroad knows about our issue, but is dragging its feet. We're just little people
trying to have a good-faith negotiation with a giant corporation. No state laws protect us. We've
spoken to the EPA and the FRA, as well as state-level government offices. The railroad
essentially regulates itself. Why should they get to do that when others have to follow nuisance
laws? What gives them the right to put us at risk?

That said, state senators have introduced a bill to bar such convenience idling due to the
harmful impact of emissions from locomotives. Without this rule change, bills like this one have
no teeth. But residents like us want to give our state government the power to protect us. Local
context matters where public health is concerned. Our neighborhood, city and state experience
different impacts from freight emissions than other places. That's why we need state-level
oversight over emissions - because it would allow our state representatives to react to our local
context. Our home sits in a formerly redlined neighborhood in an Environmental Justice Tract.
The families here are long overdue for respite from industrial pollution. Many other
neighborhoods like it need the same. We hope this rule change can finally give us recourse.
[EPA-HQ-OAR-2022-0985-1739]

Organization: Moving Forward Network (MFN) et al.

No matter the city, there are certain shared features of living alongside the global freight
system: First, communities of color and low income communities are consistently on the
frontlines/fenceline of pollution from the freight sector; Second, any equipment with emissions
affects community health; and Third, industry very rarely, if ever, volunteers to transition its
equipment to zero-emissions. [EPA-HQ-OAR-2022-0985-1608-A3, p. 1]

The rail industry remains one of the most significant sources of pollution in communities
across the country. Our communities live near railyards and freight rail routes, where some of the
dirtiest switcher and line-haul locomotives, some 50 to 60 years old, belch diesel particulate
matter daily. Tracks are located feet from our homes, schools, playground, and workplaces.
Children, families, and workers in our communities have had to pay for the rail industry's
pollution with their health for decades and continue to suffer devastating short- and long-term
health consequences from exposure to diesel pollution. [EPA-HQ-OAR-2022-0985-1608-A3,
p. 1]

Diesel locomotives, the most widely used in the United States, have significant and long-
lasting negative impacts on public health, including increased childhood asthma, lung disease,
and premature death. Low-income communities and communities of color often suffer the most
from the locomotive industry's life-threatening pollution because railyards and rail routes are
typically located in, on, and near these communities. [EPA-HQ-OAR-2022-0985-1608-A3, p. 1]

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"We have high-risk zip codes where asthma, heart disease, and cancer are above the national
average and are the same areas sliced by the second largest rail system in the nation." - Atenas
Mena, CleanAirNow (Kansas City, Kansas) [EPA-HQ-OAR-2022-0985-1608-A3, p. 1]

We also ask EPA to take affirmative actions to reduce locomotive pollution, including by
adopting a Tier 5 zero-emission locomotive emission standard, requiring all locomotives and
engines used in locomotives meet a Tier 5 zero-emission locomotive emission standard by 2045,
and working with our organizations to develop strategies to reduce railyard pollution. [EPA-HQ-
OAR-2022-0985-1608-A3, p. 2]

In sum, the freight sector continues to radically impact the health and well-being of
communities across the country. Locomotives remain on the shortlist of polluting industries.
There is a dire need for all levels of government to act as soon as possible to hold Class I, II, and
III operators accountable for upgrading their fleets to cleaner tiers and zero-emission
technology. [EPA-HQ-OAR-2022-0985-1608-A3, p. 2]

I. Locomotive pollution has significant negative impacts on our health, regional air quality,
and climate.

A. The global freight system pollutes our communities.

The freight system—the intricate network transporting huge volumes of goods from places of
manufacturing origin to the marketplace to local businesses, governments, communities, and the
homes of consumers, and then waste—continues to be one of the most significant sources of
pollution and environmental injustice in the United States. Hundreds of thousands of diesel
trucks, locomotives, ships, and cargo handling equipment dump tons of dangerous criteria
pollutants into our airways daily. Cargo facilities that serve as hubs in the goods movement
network, like ports, railyards, and warehouses, and the channels that carry this huge machinery,
like freeways and rail lines, are more often than not inhumanely close to where people live and
work. Decades of racist zoning policies have practically ensured that these polluting facilities are
located in low-income communities and communities of color, creating an environmental justice
disaster. Not only this, but it is commonplace for multiple polluting facilities to be concentrated
in these communities. If there is a nearby railyard, there is more likely to be a nearby port,
freeways, warehouses, or refineries—or all of the above. People who bear the brunt of the
negative effects of one polluting facility are much more likely to suffer the consequences of
multiple cumulative impacts. It is woefully unjust for communities to bear the cumulative
impacts from railyards and locomotives, which include public health concerns, economic
impacts, public safety fears, and housing issues. [EPA-HQ-OAR-2022-0985-1608-A3, p. 2]

We rely on our air regulators at the federal, state, and local levels to prioritize the need for
industry to eliminate its pollution. Until then, communities on the frontlines will continue to pay
with our health. [EPA-HQ-OAR-2022-0985-1608-A3, p. 2]

B. Railyard pollution has created a national public health crisis.

There is no debate that rail pollution negatively affects the health, safety, and well-being of
communities across the country. Exposure to diesel exhaust from locomotives is deadly.
Exposure to the pollutants in diesel exhaust—especially long-term exposure—has clear, adverse
health effects. More than 90% of diesel exhaust consists of ultra-fine particles that are less than 1
micron in diameter. These ultra-fine particles are so small that they can cross the air-blood

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barrier in the lungs and enter the bloodstream, allowing them to travel to virtually any organ
system in the body and disrupt normal cell function. [EPA-HQ-OAR-2022-0985-1608-A3, pp. 2
-3]

The California Air Resources Board (CARB) performed health risk assessments for every
major railyard in California from 2005 to 2008. While these reviews are dated, they remain some
of the most robust studies of health risks from railyard pollution. This speaks to the need for
more current, detailed health assessments of the impacts of railyard pollution on local
communities. Thankfully, the U.S. Federal Railroad Administration (FRA) has recognized that
there is a disparity in the communities who suffer from railyard pollution. The FRA is
developing a mapping tool overlaying railyards on environmental justice communities to assess
where these harms are being inflicted. We look forward to engaging with the FRA on the
development of this tool. In addition, we urge EPA to work with sister agencies to invest in
developing public health research in railyard hubs around the country, including but not limited
to Chicago, Kansas City, Charleston, Houston, and New Jersey. [EPA-HQ-OAR-2022-0985-
1608-A3, p. 3]

In the meantime, CARB's data paints a vivid picture about the significantly elevated cancer
and other health risks from living or working in close proximity to a railyard. In 2008, the
estimated diesel emissions from railyard operations at BNSF San Bernardino, BNSF Barstow,
and UP Colton railyards in Southern California was 66.4 tons of PM emissions.1 Residents living
near each of the San Bernardino County railyard facilities experienced between 575 to 3,300 in a
million increased risk of cancer from railyard pollution alone—excluding any additional cancer
risk from other cumulative impacts or regional air pollution.2 The UP Colton railyard, which is
5.5 miles long and one-third of a mile wide, is just 350 feet from the nearest homes and
neighbors a local high school.3 Locomotive operations account for 99% of diesel PM emissions
at UP Colton, highlighting the need for stricter locomotive regulations.4 Residents and local
workers near these San Bernardino County railyards were also found to be at increased risk for
asthmarelated emergency room visits, increased risk of death from cardiopulmonary issues, and
increased hospitalizations for cardiovascular and respiratory illness.5 [EPA-HQ-OAR-2022-
0985-1608-A3, p. 3]

1 Ed Avol, Professor of Environmental Health, Keck School of Medicine of University of Southern

California, testimony ("Avol Testimony"), at Q55.

2 See Avol Testimony at Q44, Q47, Q52.

3 See Avol Testimony at Q51.

4 See Avol Testimony at Q51.

5 See Avol Testimony at Q44.

CARB's assessment also highlights the communities that are saddled with these health risks.
For example, residents who live near the BNSF San Bernardino and UP Colton railyards are
more likely to be low-income and to self-identify as Latinx than residents in other parts of San
Bernardino, Barstow, and Colton.6 [EPA-HQ-OAR-2022-0985-1608-A3, p. 3]

6 See Avol Testimony at Q46, Q50, Q54.

Given that some of these railyards have since grown and adoption of Tier 4 locomotives
remains at less than 5% in California, we can expect that these health impacts have not improved

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much, and in fact, may have worsened over the last 15-20 years. [EPA-HQ-OAR-2022-0985-
1608-A3, p. 4]

Moreover, a study in Newark, New Jersey, found that "[ejmissions of PM2.5, black carbon,
and NOx from non-roadway sources, particularly locomotives and port operations, have the
highest air quality impact in the total study area, followed by medium- and heavy-duty
vehicles."7 Critically, emissions from locomotives and port operations "contribute around 95
percent of the total emissions" from the area, which included much of southeast Newark and
north Elizabeth, including Newark Airport and the ports of Newark and Elizabeth, New
Jersey.8 [EPA-HQ-OAR-2022-0985-1608-A3, p. 4]

7 MJ Bradley & Associates, Newark Community Impacts Mobile Source Emissions - Community-Based

Participatory Research Analysis, (Nov. 2020),

https://njeja.org/wpcontent/uploads/2021/06/NewarkCommunityImpacts_MJBA.pdf.

8 Id.

In addition to local health effects, locomotive pollution makes up a considerable portion of
regional air pollution and therefore presents challenges for states to reduce regional air quality
and to achieve attainment of the federal air quality standards. The Clean Air Act's cooperative
federalism scheme holds both states and the federal government accountable for reducing
regional air pollution—all parties must do more. Regardless of who is responsible for reducing
this pollution, there is no question that locomotive emissions are a major contributor to states'
total pollution. Again, we lack sufficient data about the amount of pollution from locomotives in
each state, so California's data must serve as a stand in. In California, rail pollution contributes
15% of all freight sector NOx emissions and 11% of all freight sector PM2.5 emissions in 2022.9
In California's case—and likely in the case of other states—it is next to impossible to achieve the
National Ambient Air Quality Standards (NAAQS) without addressing locomotive
pollution. [EPA-HQ-OAR-2022-0985-1608-A3, p. 4]

9 CARB, In-Use Locomotive Regulation Presentation (Nov. 18, 2022), at 5,

https://ww2.arb.ca.gov/sites/default/files/barcu/board/books/2022/111722/placeholder/22-15-6pres.pdf.

C. The dirtiest, oldest switcher locomotives operate in community railyards.

Railyard pollution, in particular, remains exceptionally harmful to the health of people who
live and work near these facilities. Switcher locomotives make up the largest share of railyard
locomotives, yet they are also notoriously some of the most outdated and highest-polluting
locomotives. The following table shows that two-thirds of Class I locomotives operating in
railyards in 2020 were Tier 0 or Tier 0+. This means that 67% of the locomotives that operate
closest to where people live are emitting at extremely high levels. [EPA-HQ-OAR-2022-0985-
1608-A3, p. 4]

Even more concerning is that Class I railyard fleets became dirtier over time. From 2017 to
2020, locomotive fleets used in railyards moved toward older technology and away from cleaner,
higher tier engines. This trend should be deeply concerning to EPA, just as it is to our
members. [EPA-HQ-OAR-2022-0985-1608-A3, p. 4. See Table 1 2017-2020 Yard Engine Fleet
Composition Comparison on p. 5 of docket number EPA-HQ-OAR-2022-1608-A3.]

This shocking information communicates three things clearly: First, railroads have no interest
in being good neighbors to frontline communities living near railyards; Second, railroads cannot

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be trusted to voluntarily adopt cleaner technology over time—and in fact, will revert to older,
dirtier technology if given the choice; and Third, twenty-five years after EPA adopted its first
locomotive emission standard, federal, state and local regulations to address rail pollution remain
far too weak. [EPA-HQ-OAR-2022-0985-1608-A3, p. 5]

The impacts of this crisis are being felt across the country. Class I railyards are located in
almost every single state, as shown in the following figure.10 [EPA-HQ-OAR-2022-0985-1608-
A3, p. 5.] [See Figure 1 Rail Yard Locations in the United States on p. 6 of docket number EPA-
HQ-OAR-2022-1608-A3.]

10 2020 National Emissions Inventory Locomotive Methodology Prepared for U.S. Environmental
Protection Agency by Eastern Research Group, Inc. (May 19, 2022), at 8,

https://gaftp.epa.gov/air/nei/2020/doc/supporting data/nonpoint/Rail/2020 NEI Rail 062722.pdf.

But the harms from railyards do not stop with public health. Living near a railyard comes with
a slew of other debilitating consequences. Stadium-style lights beam into neighboring homes at
all hours of the night; trains blare their horns unexpectedly and at jarring levels11; and the
vibrations from passing trains rumble homes like an earthquake. There have also been numerous
reported instances of emergency vehicles being unable to travel to where they need to be because
a miles-long train or idling locomotive stops them in their path. Trains are also often stopped for
hours and days at a time, creating safety issues for children walking to school. All of these side
effects result in significantly reduced quality of life and shorter average lifespans in our
communities. The generational trauma from these cumulative incidents carries the legacy of
these dangerous facilities through our communities' family lines. [EPA-HQ-OAR-2022-0985-
1608-A3, p. 6]

11 Emily Baumgaertner, Jsaon Jao, Eleanor Lutz, Josephine Sedgwick, Rumsey Taylor, Noah Throop, Josh
Williams, Noise Could Take Years Off Your Life. Here's How, (June 9, 2023),
https://www.nvtimes.com/interactive/2023/06/09/health/noise-exposure-health-impacts.html.

D. Members from freight hubs around the United States tell their stories of living near
railyards.

Community members across the country, from Kansas City to Chicago to San
Bernardino, share their stories of living with railyard pollution. [EPA-HQ-OAR-2022-0985-
1608-A3, pp. 6 - 7]

Kansas City, Kansas. Atenas Mena, CleanAirNow

• My hometown, Kansas City, is home to the second-largest rural transportation center in
the country. In fact, the rail industry remains one of the most significant sources of this
environmental injustice for many of our communities. Diesel-powered locomotives emit
large quantities of nitrogen oxide, diesel particulate matter, and volatile organic
compounds. Residents of Armourdale, which is a neighborhood in Kansas City, Kansas,
predominantly Latino, Hispanic working class, is enclosed between large rail yards, dirty
industry, and heavily trafficked highways. They experience a life expectancy of 22 years
shorter, according to the CDC. This is the same neighborhood where you will not find
any electric charging stations or access to transportation. Healthcare and other resources
are limited, and climate change weather patterns are felt regularly with record-breaking
heat waves, floods, droughts, and concerning poor air quality days. KCK is not siloed in
this large and impactful discrepancy. Our nation has been overburdening environmental

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justice communities by having them bear the brunt of systemic racism with the legacy of
redlining, zoning and dumping practices, leaving families without access to clean air,
water, and land. [EPA-HQ-OAR-2022-0985-1608-A3, p. 7]

Chicago, Illinois - Jose Acosta, Little Village Environmental Justice Organization

• Oh, there are also schools and parks and other things that are near these rail yards (in
Chicago). But these are essentially inland ports, right? They function as a port, although
they're not... they don't have access to water, but they're just as busy. If you look at all of
our 19 ports, our 19 inland ports, they're all just as busy as... almost as busy as the Los
Angeles and Long Beach ports.. .where the intermodal are located, people of color are
also living. So this is an issue that primarily impacts black and brown communities, and
as a result, we're dealing with the most concentrated pollution. And in addition to the
intermodal, you also have other logistics activities that locate as closely as possible to
these intermodal, right, so distribution centers and warehouses and trucks, other trucking
yards, and just all other logistics facilities want to be as close to these as possible. In
addition, many of these are also close to highways, so there's that combination of that as
well. [EPA-HQ-OAR-2022-0985-1608-A3, p. 7]

San Bernardino, California - Ivette Torres, People's Collective for Environmental Justice

• Two of the biggest rail communities in the Inland Empire, California, are Colton and San
Bernardino... Colton is not only worried about freight. Colton is a small community.

There are no official sensors and no official monitoring. Yet, they're impacted by two
industry highways, gas plants, cement plants, huge warehouse logistics, as well as the
expansion of rail coming their way through BNSF and Union Pacific. For San
Bernardino, we have the BNSF in our facility that has been in San Bernardino since the
beginning, at least the rail. But the facility has expanded throughout the years and
continues to expand. This last year they're adding, they passed, the city council passed
another rail expansion, another line, and that is displacing homes and buying out homes
on the west side community of San Bernardino, which is already really impacted by the
thousands of trucks and trains that come out of that community. And those are during
COVID, they took advantage and bought out some homes, and most of these people are
renters, so they had no idea they were going to be kicked out of their homes so the BNSF
could expand their day-to-day trade. [EPA-HQ-OAR-2022-0985-1608-A3, pp. 7-8]

Detroit, Michigan - Raquel Garcia, Southwest Detroit Environmental Vision

• The kids walk under this rail viaduct. It runs all day and shakes the school. If it derailed
or spilled toxic materials, it would literally spill onto faculty cars. [EPA-HQ-OAR-2022-
0985-1608-A3, p. 8. See Photo 1 Cesar Chavez Academy High School, Detroit Michigan,
Photo by: Raquel Garcia on p. 8 of docket number EPA-HQ-OAR-2022-1608-A3.]

Joliet, Illinois - Zhenya Polozova, Warehouse Workers for Justice

• Staff and members of Warehouse Workers for Justice measuring particulate matter
pollution within and around CenterPoint, the largest inland port in North America based
in Will County, Illinois. This ongoing measurement led to the creation of the report for
Clean Air & Good Jobs, a report outlining the challenges and necessary steps to enact a

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just transition to zero-emissions for Will County. [EPA-HQ-OAR-2022-0985-1608-A3,
p. 8.] [See Photos 2-5 on p. 9 of docket number EPA-HQ-OAR-2022-1608-A3.]

E. The majority of locomotives are outdated and emit high levels of diesel exhaust, NOx, and
PM.

Despite EPA adopting four tiers of locomotive emission standards starting in 1998, the state
of locomotive pollution in the US remains dire. The nearly $80-billion freight rail industry
remains one of the most polluting industries in the country. Not only is railyard pollution of
specific concern, but long distance line-hauls continue to pollute at concerning levels. The basic
reason for this is that the majority of locomotives still in operation are far outdated and therefore
emit unnecessarily high levels of diesel exhaust, NOx, and PM. Table 5 shows the emission
factors for criteria pollutants for 2020 line-haul locomotives by tier.12 NOx, PM and VOC
emissions for Tier 3 and older locomotives are dramatically higher than for Tier 4 locomotives.
For instance, even jumping up just one tier from Tier 3 to Tier 4 results in impressive emission
reductions: Tier 3 line-hauls emit almost 500% more NOx, 533% more PM2.5, and 325% more
VOC than Tier 4 line-hauls. Yet, only 9% of Class I locomotives—whether switcher or line-
haul—were built in 2015 or later and, therefore must meet the most restrictive Tier 4
standard. [EPA-HQ-OAR-2022-0985-1608-A3, pp. 9 - 10.]

12 2020 National Emissions Inventory Locomotive Methodology Prepared for U.S. Environmental
Protection Agency by Eastern Research Group, Inc. (May 19, 2022), at 5,
https://gaftp.epa.gov/air/nei/2020/doc/supporting data/nonpoint/Rail/2020 NEI Rail 062722.pdf.

By comparison, according to 2021 data from the U.S. Bureau of Transportation Statistics,
45% of Class I locomotives are Tier 0 and emit a jarring 860%) more NOx, 2,130%) more PM2.5,
and l,200%o more VOC than Tier 4 line-hauls. These figures warrant a pause—almost half of all
Class I locomotives operating in the United States emitted criteria pollution at these
unnecessarily high levels, even though these toxins are known to cause conditions like cancer,
cardiac and respiratory issues, reproductive issues, asthma, lowered lung function, chronic
obstructive pulmonary disorder, and premature death. [EPA-HQ-OAR-2022-0985-1608-A3, p.
10.] [See Table 2 2020 Line-haul Locomotive Emission Factors by Tier, AAR Fleet Mix (g/gal)
on p. 10 of docket number EPA-HQ-OAR-2022-1608-A3 and Figure 2 2021 Class I Railroad
Locomotive Fleet by Year Built on p. 11 of docket number EPA-HQ-OAR-2022-1608-A3.]

13 U.S. Bureau of Transp. Statistics, Class I Railroad Locomotive Fleet by Year Built,
https://www.bts.gov/content/class-i-railroad-locomotive-fleet-vear-built.

III. States and local governments must reduce locomotive pollution to protect public health
and attain federal air quality standards.

Locomotives are responsible for a significant amount of pollution in communities across the
country. There is no way to clean the air and for states to achieve federal air quality standards
without regulating these significant sources of air pollution. [EPA-HQ-OAR-2022-0985-1608-
A3, p. 13]

Locomotive pollution impacts all of the NAAQS, and ozone and particulate matter in
particular. EPA has progressively strengthened the ozone and particulate matter standards in
light of new scientific evidence demonstrating health impacts at lower levels of pollution. Most
recently, in 2015, EPA revised the primary and secondary 8-hour ozone standard from the 2008
level of 75 parts per billion (ppb) to 70 ppb, and in 2013, the primary annual PM2.5 standard was

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revised from 15 micrograms per cubic meter (|ig/m3) to 12 |ig/m3. [EPA-HQ-OAR-2022-0985-
1608-A3, p. 13]

Although states are required to comply with these standards, many continue to fail to meet
one or more ozone standards. In fact, almost 125 million people, or 37.7 percent of the U.S.
population, live in areas currently classified as being in nonattainment of the 2015 8-hour
ozone standard (70 ppb).29 These areas include 204 counties in 23 states, including California,
Illinois, Missouri, New Jersey, and New York.30 Parts of California and Pennsylvania are also in
nonattainment of the PM2.5 standard.31 [EPA-HQ-OAR-2022-0985-1608-A3, pp. 13 - 14]

29 U.S. Env'tProt. Agency, 8-Hour Ozone (2015) Designated Area/State Information, (Nov. 30, 2022),

https://www3.epa.gov/airqualitv/greenbook/ibtc.html.

30 Id.

31 Id.

Many of the states that continue to fail to meet the ozone standards also have high
concentrations of rail activity, which adds to the pollution burden that local residents breathe,
and that states must clean up. For example, California is home to some of the most polluted air
basins in the country. Two of California's airsheds—the South Coast Air Basin and the San
Joaquin Valley Air Pollution Control District—suffer from some of the highest levels of ozone
and PM2.5 levels in the country. About 12 percent of statewide NOx emissions and 8 percent of
statewide PM2.5 emissions originate from locomotives, making the need to regulate rail
pollution undeniable. Locomotive pollution is expected to make up about 14 percent of
California's NOx inventory and 16 percent of the state's PM2.5 inventory in 2030. This is a
staggering proportion of California's total pollution. California has a federal obligation to show
how it will attain the NAAQS, and this is nearly impossible without addressing the pollution
from locomotives. [EPA-HQ-OAR-2022-0985-1608-A3, p. 14]

Pollution reductions will not happen without state action. Even with the EPA's adoption of
Tier 4 standards 15 years ago, Class I railroads remain notoriously truant. In California today,
Tier 4 locomotives make up less than 5% of all Class I locomotives. Meanwhile, more than 75%
of Class I switcher locomotives remain at Tier 0. There is no justification for this truancy, and in
the meantime, people are suffering from higher rates of cancer, asthma, cardiopulmonary illness,
and premature death associated with increased pollution from locomotives. [EPA-HQ-OAR-
2022-0985-1608-A3, p. 14]

Finally, states and local governments also have obligations under federal and state civil rights
laws to address rail operations. Title VI of the Civil Rights Act of 1964 prohibits discrimination
on the basis of race, color, or national origin by any program or activity that received federal
financial assistance.43 Federal regulations implementing Title VI developed by both the
U.S. Environmental Protection Agency and the Department of Transportation require agencies to
take affirmative actions to remove or overcome the effects of discrimination. In many places,
people of color are disproportionately exposed to rail emissions. For example, a 2014 study
found significant disparities in diesel exposure by race and income for communities living near
major existing railyards in California and further concluded that existing and proposed railyards
would disproportionately harm the health of low-income communities of color. Moreover,
children are more sensitive to cancer-causing toxins, such as diesel PM, and are more likely to
experience an asthma-related ER visit if they live closer to a major railyard. State and local

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governments maintain authority-and indeed have obligations-to protect frontline communities
that have historically borne the brunt of air pollution caused by industrial activities like railyards
and ensure that low-income, communities of color, immigrant communities, and other protected
classes are no longer subject to high levels of air pollution from locomotives. [EPA-HQ-OAR-
2022-0985-1608-A3, pp. 16 - 17]

43 See also California Government Code Section 11135 (stating that "[n]o person in the State of California
shall, on the basis of [a protected category], be unlawfully denied full and equal access to the benefits of, or
be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or
administered by the state or by any state agency, is funded directly by the state, or receives any financial
assistance from the state." Implementing regulations further specify that agencies are prohibited from
"utilizing] criteria or methods of administration that. . . have the purpose or effect of defeating or
substantially impairing the accomplishment of the objectives of the recipient's program with respect to a
person of a particular ethnic group identification, religion, age, sex, color, or with a physical or mental
disability.")

V. EPA should adopt a Tier 5 zero-emission locomotive standard by the end of 2023.

Finally, our organizations ask EPA to take the following actions to clean up locomotive and
railyard pollution. The following asks are outlined in detail in MFN's Letter Regarding Proposed
Locomotive Action at the United States Environmental Protection Agency, dated March 14,
2023 60:

1.	Adopt a rulemaking before the end of 2023 to address the public health, dirty air, and
climate crises exacerbated by locomotive pollution.

2.	Include in the rulemaking a Tier 5 zero-emission locomotive standard for all new
freight locomotives that requires 100 percent of all new switchers be zero-emission by
2025, and 100 percent of all new line-hauls be zero-emission by 2030.61

3.	Set significantly more stringent emission standards for all remanufactured locomotives
and locomotive engines, so that 100 percent of all remanufactured switchers at least
meet the Tier 4 standard by 2025, and 100 percent of all line-haul locomotives at least
meet the Tier 4 standard by 2027.

4.	Require all locomotives and engines used in locomotives that are in operation within
the United States to meet a Tier 5 zero-emission standard by 2045. EPA must work in
partnership with states to require the scrappage of all non-Tier 5 engines.

5.	Use the authority in section 108(f)(1)(C) of the Clean Air Act to identify strategies to
clean up the toxic hot spots associated with rail and railyard activities to "protect the
health of sensitive or susceptible individuals or groups."

6.	Work with our organizations to create a strategy to eliminate pollution burdens from
concentrated railyard operations that pose significant health and safety risks, including
but not limited to pollution and impacts from the operation of locomotive maintenance
facilities, locomotive parking/idling, and supporting warehouses, which are often
located in environmental justice communities. [EPA-HQ-OAR-2022-0985-1608-A3,
pp. 23 - 24]

60 Moving Forward Network, Letter Regarding Proposed Locomotive Action at the United States
Environmental Protection Agency, (March 15, 2022),

64

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https://www.movingforwardnetwork.com/wpcontent/uploads/2023/04/MFN-Zero-Emission-
Locomotive-Letter-March-14-2023 .pdf.

61 See, e.g., Jill W. Moraski, Natalie D. Popovich & Amol A. Phadke, Leveraging rail-based mobile
energy storage to increase grid reliability in the face of climate uncertainty (May 16, 2023),
https://www.nature.com/articles/s41560-023-Q1276-x.

VI. Conclusion

Our members have been forced to live in a system that does not serve-and in fact, opposes-
their basic needs of health and safety. Environmental justice communities continue to bear the
public health and environmental consequences of the global freight system. For decades, the rail
industry has poisoned families, workers, and communities with a barrage of pollution from
outdated locomotives. We support EPA in taking this critical action to clarify that states and
local authorities are not preempted from adopting life-saving emission control measures for non-
new locomotives. States and local governments have the duty to meet the federal air quality
standards and to reduce pollution for their communities. [EPA-HQ-OAR-2022-0985-1608-A3,
p. 24]

At the same time, EPA has the duty and the responsibility to further reduce emissions from
the railroad industry. We urge EPA to take affirmative actions to reduce locomotive pollution by
adopting a Tier 5 zero-emission locomotive standard by the end of 2023, requiring all
locomotives and engines used in locomotives to meet a Tier 5 zero-emission locomotive standard
by 2045, and working with our organizations to create a strategy to eliminate pollution burdens
from concentrated railyard operations that pose significant health and safety risks. [EPA-HQ-
OAR-2022-0985-1608-A3, p. 24]

14. Locomotives and Rail

Moving Forward Network is submitting detailed written comments on the EPA's inclusion of
the rail and locomotive section in this rule-making. Below, we note some key points regarding
our support for EPA's proposed revisions, and we urge EPA to take additional action to develop
new life-saving, zero-emission regulations to address this major source of deadly
pollution. [EPA-HQ-OAR-2022-0985-1608-A1, p. 123]

Many communities across the country live near rail yards and freight railroads, where some of
the dirtiest switcher and line-haul locomotives operate, and they are belching dirty diesel
particulate matter every single day, sometimes just feet from homes, schools, and workplaces.
This has very negative and dramatic health consequences as well as air quality consequences.
Switchers and line haul locomotives spew diesel particulate matter and other pollutants
throughout communities where people live, work, learn, and play. This is unjust and
unacceptable, especially when we have zero-emission technology to address these issues
today. [EPA-HQ-OAR-2022-0985-1608-A1, p. 123]

The rail industry remains one of the most significant sources of this environmental injustice
for many communities, and the cumulative impacts of this industry are clear. Communities
experience bright lights, noise, vibrations that feel like earthquakes, idling which can prevent
emergency vehicles from getting people to lifesaving medical care, and disproportionate
exposure to pollution that causes adverse health outcomes such as asthma, cardiovascular
vascular disease, and dangerous diesel-related illnesses, which are also contributing to a shorter
lifespan in our communities. Communities have the right to breathe clean air, and states and

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local governments must act to protect communities from this pollution. We also remain steadfast
that EPA not only has authority but has the responsibility to regulate the rail and locomotive
industry, which has been allowed to pollute our communities for far too long. This proposed
action is only the beginning, and EPA must focus its efforts on taking strong action to address
the cumulative impacts caused by locomotives and rail yards, including by developing a Tier 5
zero-emission locomotive standard. [EPA-HQ-OAR-2022-0985-1608-A1, p. 124]

Organization: National Association of Clean Air Agencies (NACAA)

In addition, if it has not already, EPA should expeditiously begin work on new Tier V
locomotive standards that reflect the significant diesel emission technology improvements that
have been introduced since the agency finalized the existing Tier IV standards in 2008, as well as
the improvements in and opportunities to deploy zero- emission locomotives. In doing so, EPA
should look for opportunities to aggressively accelerate the infrastructure for such newer, cleaner
locomotives into the nationwide fleet. [EPA-HQ-OAR-2022-0985-1499-A1, pp. 10-11]

Organization: State of California et al. (1)

As EPA acknowledges, diesel-powered locomotives emit multiple harmful pollutants
including particulate matter ("PM") and nitrogen oxides ("NOx").8 The pollutants emitted by
locomotives have disproportionate impacts on disadvantaged communities due to their proximity
to rail operations. [EPA-HQ-OAR-2022-0985-1526-A1, p. 2]

Despite the serious effects of locomotive air pollution, locomotive owners and operators
continue to operate fleets composed primarily of older locomotives subject to EPA's more
lenient Tier 0, 1, and 2 emissions standards, or that remain unclassified.9 As of 2020, only 7
percent of the Class I line haul fleet was subject to EPA's most stringent Tier 4 emission
standards, which have been in place since 2008 and are applicable to locomotives manufactured
since 2015.10 It is significant that such a minor percentage of the Class I fleet is subject to the
Tier 4 standards. Under the Tier 4 standards, NOx emissions are limited to 1.3 grams per brake
horsepower-hour (g/bhp-hr) and PM emissions are limited to 0.03 g/bhp-hr.11 By contrast, under
the Tier 2 standards, NOx is limited to 5.5 and PM is limited to 0.10, and under the Tier 1
standards, NOx is limited to 7.4 and PM is limited to 0.22.12 EPA's data shows that 47% of the
in-service fleet in the United States is subject to Tier 1 or earlier, less stringent standards.13
Therefore, nearly half of the in-service fleet is permitted to emit NOx at a level almost six times
higher and PM at a level over seven times higher than standards now applicable to new
locomotives allow. The profile of the Class I switching fleet is even worse, comprising
approximately 97 percent Tier 0 or unclassified locomotives.14 [EPA-HQ-OAR-2022-0985-
1526-A1, pp. 2-3]

8 NPRM, at 26,047-48; see also 17 Cal. Code Regs. § 93000; CARB, "Overview Diesel Exhaust & Health"
(CARB Overview Diesel Exhaust), available at: https://ww2.arb.ca.gov/resources/overview-diesel-exhaust-
and-health.

9 For purposes of this comment, we do not differentiate between pre-2008 and post-2008 (represented by a
'+') standards.

10 Eastern Research Group, Inc., 2020 National Emissions Inventory Locomotive Methodology Prepared
for U.S. Environmental Protection Agency (May 19, 2022), p. 4, available at:
https://gaftp.epa.gOv/air/nei/2020/doc/supporting_data/nonpoint/Rail/2020_NEI_Rail_062722.pdf

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(hereinafter NEI Methodology); 40 C.F.R. § 1033.101. Railroads are classified as I, II, or II based on

operating revenue. NPRM at 26,093 fn. 1017.

11 40 C.F.R. § 1033.101 (Table 1).

12 Id.

13 NEI Methodology, p. 4.

14 Id., p. 10.

There are greater risks to public health and welfare if the States cannot effectively regulate
non-new locomotives to address this serious air pollution. Reducing locomotive emissions can
play an important role in protecting public health and in our States attaining and/or maintaining
National Ambient Air Quality Standards ("NAAQS"). Therefore, our States urge EPA to finalize
and adopt the Proposed Revisions to better align EPA's Locomotive Preemption Regulation with
the statutory text of the CAA, thereby removing a potential obstacle to the States exercising their
congressionally preserved authority to regulate emissions from non-new locomotives and
locomotive engines. [EPA-HQ-OAR-2022-0985-1526-A1, p. 3]

I. Factual Background

A. Diesel Locomotives Emit Toxic Air Pollutants that Endanger Public Health and Welfare

Diesel-powered locomotives emit a complex mixture of air pollutants, including diesel
particulate matter ("DPM") and NOx, which can lead to the formation of ozone and the
secondary formation of PM including PM2.5.15DPM is typically composed of carbon particles
("soot," also called black carbon) and numerous organic compounds, including over 40 known
cancer-causing organic substances. Examples of these chemicals include polycyclic aromatic
hydrocarbons, benzene, formaldehyde, acetaldehyde, acrolein, and 1,3-butadiene.16 The DPM
present in diesel exhaust consists mostly of fine particles (less than 2.5 mm), of which a
significant fraction is ultrafine particles (less than 0.1 mm).17 These particles have a large surface
area that makes them an excellent medium for absorbing organics, and their small size makes
them highly respirable. Many of the organic compounds present in the gases and on the particles,
such as polycyclic organic matter, are individually known to have mutagenic and carcinogenic
properties.18 [EPA-HQ-OAR-2022-0985-1526-A1, pp. 3-4]

15 17 Cal. Code Regs. § 93000; CARB Overview Diesel Exhaust; see also NPRM, at 26,047-48.

16 CARB Overview Diesel Exhaust.

17 Id.

18 NPRM at 26,048.

As of 2018, mobile sources were the largest contributor to national average cancer and
noncancer risk from directly emitted pollutants. They are also significant contributors to
precursor emissions which react to form air toxics, including 26 percent of primary
anthropogenic emissions of formaldehyde, which is the largest contributor to cancer risk, and 60
percent of ambient concentrations of benzene.19 [EPA-HQ-OAR-2022-0985-1526-A1, p. 4]

There is a causal relationship between exposure to PM2.5 and premature mortality and
cardiovascular effects, and a likely causal relationship with respiratory effects, nervous system
effects, and cancer.20 There is also evidence suggestive of a causal relationship with reproductive

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and developmental effects and metabolic effects, and short-term exposure and nervous system
effects.21 [EPA-HQ-OAR-2022-0985-1526-A1, p. 4]

Exposure to ambient ozone levels can lead to respiratory effects, including lung function
decrements, pulmonary inflammation, exacerbation of asthma and new onset asthma,
respiratory-related hospital admissions, metabolic effects, central nervous system effects, and
mortality.22 Ground level ozone also causes damage to terrestrial and aquatic ecosystems.23

Evidence also indicates exposure to NOx leads to asthma exacerbation, cardiovascular effects,
diabetes, cancer, and mortality.24 [EPA-HQ-OAR-2022-0985-1526-A1, p. 4]

Federal, state, and international agencies have determined that exposure to diesel exhaust is
likely to be carcinogenic to humans by inhalation from environmental exposures.25 Several
studies report increased lung cancer risk associated with occupational exposure to diesel exhaust
from older engines.26 California classifies diesel engine emissions as a Toxic Air Contaminant
that has no threshold exposure level below which no significant adverse health effects are
anticipated from exposure to the identified substance.27 [EPA-HQ-OAR-2022-0985-1526-A1, p.
4]

19 Id.

20 Id. at 26,049.

21 Id.

22 Id. at 26,051.

23 "Emission Standards for Locomotives and Locomotive Engines," 63 Fed. Reg. 18,978, 18,978 (April

16, 1998).

24 NPRM at 26,052.

25 Id. at 26,053.

26 Id. at 26,054.

27 CARB, "Identified Toxic Air Contaminants," https://ww2.arb.ca.gov/resources/documents/carb-

identified-toxic-air-contaminants.

B. Diesel Locomotive Emissions Disproportionately Impact Environmental Justice
Communities28

Emissions of harmful air pollutants from diesel locomotives disproportionately impact
residents of communities that suffer environmental injustices, adding to the significant negative
health conditions those communities already bear. Rail lines are fixed-in-place and, thus,
locomotive emissions impact communities located along those rail lines. The most significantly
impacted communities are those located near railyards and related infrastructure like seaports
and intermodal facilities. Railyards—consisting of multiple tracks used for storing, sorting,
loading, and transferring locomotive freight—not only attract significant amounts of rail traffic
but also related industrial infrastructure drawing large numbers of heavy duty trucks. In addition,
such intermodal rail facilities employ significant number of diesel-fueled engines to power
cranes and other yard equipment. Further, locomotive engines emit pollution at these facilities by
idling for long periods at railyards and deploying older, lower-tier engines with less-stringent
emission controls for switch operations to transport rail cars in-yard.29 While locomotives operate

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across the country, their harmful impacts are most concentrated in the areas surrounding
railyards where many locomotives—and other transportation-related machinery—simultaneously
operate. [EPA-HQ-OAR-2022-0985-1526-A1, p. 5]

Residents living near railyards and rail infrastructure are disproportionately lower-income
communities and communities of color. These communities unfairly bear the brunt of harmful
rail-related emissions, while also experiencing other cumulative industrial pollution burdens.
Further, railyards are often sited near sensitive receptors, such as schools, hospitals, elder care
facilities, and residential neighborhoods.30 In California, nearly 70 percent of large-scale Class I
railyards are located in underserved communities categorized as "disadvantaged" under
California law.31 Smaller Class III, Military, and Industrial railyards are similarly sited, with over
55 percent located in underserved, disadvantaged communities.32 [EPA-HQ-OAR-2022-0985-
1526-A1, pp. 5-6]

28 Environmental justice is defined by EPA as the "fair treatment and meaningful involvement of all
people regardless of race, color, national origin or income with respect to development, implementation,
and enforcement of environmental laws, regulations and policies." EPA, EPA-300-B-1-6004, EJ 2020
Action Agenda: The U.S. EPA's Environmental Justice Strategic Plan For 2016-2020, p. 1 (Oct. 2016). For
the purpose of this comment, the term "environmental justice community" refers to a community of color
or community experiencing high rates of poverty that due to past and or current unfair and inequitable
treatment is overburdened by environmental pollution, and the accompanying harms and risks from
exposure to that pollution, because of past or current unfair treatment.

29 See NEI Methodology; see also CARB Initial Statement of Reasons (CARB ISOR) for Proposed In-Use
Locomotive Regulations, p. 59 (Sept. 20, 2022), available at:
https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/locomotive22/isor.pdf.

30 CARB ISOR, Appendix H, p. 6, available at:

https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/locomotive22/apph.pdf.

31 CARB ISOR, p. 33. "Disadvantaged" communities are defined in California as communities suffering
from pollution burdens and vulnerability factors in the top 25th percentile, such as exposure to PM2.5, high
ozone, drinking water contaminants, traffic impacts, high diesel particulate matter (DPM), groundwater
threats, poverty, asthma, and cardiovascular disease. See California Senate Bill No. 535, California Global
Warming Solutions Act of 2006: Greenhouse Gas Reduction Fund (approved Sept. 30, 2012), available at:
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120SB535; California Office of
Environmental Health Hazard Assessment, "SB 535 Disadvantaged Communities,"
https://oehha.ca.gov/calenviroscreen/sb535.

32 CARB ISOR, p. 33

Of the 18 largest railyards in California, all but one is located in a census tract that suffers
from pollution burdens greater than the state average.33 In fact, amongst the census tracts in
which these facilities are located, the average cumulative pollution burden exceeds that of 90
percent of the rest of California communities.34 In part due to locomotive emissions—in addition
to the cumulative burdens from other industrial sources—these census tracts also suffer from
levels of DPM greater than 80 percent of California's communities.35 That pollution causes
similarly disproportionate health impacts, including rates of asthma higher than 70 percent of the
rest of California.36 [EPA-HQ-OAR-2022-0985-1526-A1, p. 6]

33 Data from CalEnviroScreen 4.0, California Office of Environmental Health Hazard Assessment,
https://oehha.ca.gov/calenviroscreen/report/calenviroscreen-40. Metrics for pollution burden, diesel
particulate matter exposure, asthma rates, and poverty are the census tract's percentile ranking as compared
to all census tracts in California, demonstrating that these census tracts are among those with the greatest

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pollution exposure, detrimental health impacts, and lowest incomes statewide. The raw data for these
percentile rankings are available on the CalEnviroScreen 4.0 website.

34 Id.

35 Id.

36 Id.

Reflecting historical redlining,37 the communities that disproportionately suffer health impacts
from locomotive and other transportation-related emissions are overwhelmingly comprised of
residents with lower-incomes and people of color. In California, Hispanic/Latino communities
overall experience pollution exposures from rail activity over 30 percent higher than average.38 A
prior study found that 17 of the 18 biggest railyards in California had a statistically higher
percentage of non-White residents within areas at risk of cancer than the remainder of the county
in which they are located.39 [EPA-HQ-OAR-2022-0985-1526-A1, pp. 6-7]

37 Beginning in the 1930s, federal housing policy directed investment away from "risky" communities of
color. In California, several residential communities in or adjacent to major railyards and related
infrastructure were coded red, signifying the least desirable areas where investment was to be avoided. See
Robert K. Nelson, LaDale Winling, Richard Marciano, Nathan Connolly, et al., "Mapping Inequality,"
American Panorama, ed., see Commerce, CA:

https://dsl.richmond.edu/panorama/redlining/#loc=12/34.037/-118.156&city=los-angeles-ca, Stockton, CA:
https://dsl.richmond.edu/panorama/redlining/#loc=14/37.941/-121.281&city=stockton-ca,

West Oakland, CA: https://dsl.richmond.edu/panorama/redlining/#loc=13/37.796/-122.287&city=oakland-
ca.

38 Hricko et al., Global Trade, Local Impacts: Lessons from California on Health Impacts and
Environmental Justice Concerns for Residents Living near Freight Rail Yards. International Journal of
Environmental Research and Public Health, 11(2), pp. 1914-1941, (February 10, 2014).

39 Id., p. 1924. From 2005 to 2008, CARB published a Health Risk Assessment (HRA) for each of the 18
major rail yards in California, using guidance from the California Office of Health Hazard Evaluation and
Assessment (OEHHA). These HRAs analyzed diesel particulate emissions from locomotives, cranes and
yard equipment within the railyard boundaries, as well as onsite and offsite emissions from heavy duty
diesel-powered trucks that take containers to and from the rail yards. See CARB, "Railyard Health Risk
Assessments and Mitigation Measures," https://ww2.arb.ca.gov/resources/documents/railyard-health-risk-
assessments-and-mitigation-measures.

The California Air Resources Board ("CARB") has previously identified four California
railyards as having a particularly high health risk from cancer related to diesel emissions, all of
which are located in communities that are disproportionately populated by non-White residents
experiencing higher rates of poverty than average. The BNSF San Bernardino railyard—which is
adjacent to residences and within a mile of 41 sensitive receptors—including seven health care
facilities, 15 schools, and 19 childcare centers—is located in a census tract populated by 94
percent people of color that experiences poverty rates higher than 97 percent of the State.40
Union Pacific's Intermodal Container Transfer Facility (ICTF) in Wilmington, CA—less than
500 feet from a middle school and residences—is sited in and around multiple census tracts
whose populations are approximately 90 percent non-White and experience poverty rates greater
than 65 percent of the State.41 And in the Los Angeles community of Commerce—where four
railyards are clustered resulting in a DPM burden in the 96th percentile—the facilities surround
census tracts consisting of 98% people of color that experience poverty rates higher than 70 of
California residents.42 [EPA-HQ-OAR-2022-0985-1526-A1, p. 7]

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40 CalEnviroScreen 4.0, Census Tract 6071004900.

41 Id., Census Tracts 6037980014, 6037980002, 6037572301, 6037572600, and 6037543306.

42 Id., Census Tracts 6037532400, 6037532302, 6037532303, and 6037532304.

In New York, environmental justice communities are disproportionately impacted by
locomotive pollution given their shared proximity to major cities throughout the state. Freight
rail service intersects the state, including across a majority of its 62 counties and cities.43 Along
New York's 3,279 miles of freight railroad, Buffalo, Syracuse, Albany, Binghamton, and the
New York City metro area (NYCMA) are all home to major facilities.44 These cities are also
home to large communities of color and low-income families 45 Such communities in each city
experience elevated risks of cancer and respiratory hazards, as well as PM2.5 levels above the
annual average.46 Emergency department visits and hospitalizations tied to asthma are also
consistently estimated at elevated rates in counties where these railyards operate.47 [EPA-HQ-
OAR-2022-0985-1526-A1, pp. 7-8]

43 See New York State Department of Transportation (NYSDOT), "Railroads in New York - 2023,"
https://www.dot.ny.gov/divisions/operating/opdm/passenger-rail/railroadsmap.

44 See U.S. Department of Transportation, "New York Transportation by the Numbers," p. 1, January
2020, https://www.bts.gov/sites/bts.dot.gov/files/states2020/New_York.pdf.

45 See New York State Department of Environmental Conservation (NYSDEC), "Potential Environmental
Justice Areas" (PEJAs), https://gis.ny.gov/gisdata/inventories/details.cfm?DSID=1273.

46 See id.; EPA, EJScreen, accessed via: https://ejscreen.epa.gov/mapper/. In Buffalo, for example, an area
adjacent to the Black Rock railyard (Census Block 15000US360290071014) is 93 percent non-white, 54
percent below poverty level, and at 80th percentile for PM2.5, 83rd percentile on the air toxics respiratory
hazard index, 96th percentile for ozone, and 98th percentile for diesel particulate matter.

47 See New York State Department of Health (NYSDOH), "Asthma ED Visits and Hospitalizations,"
https://apps.health.ny.gOv/statistics/environmental/public_health_tracking/tracker/index.html#/asthmaCoun

ty-

The asthma rate for low-income individuals across New York City is well above the national
average 48 In collaboration with EPA, New York City Economic Development Corporation and
New York City Department of Small Business Services undertook two locomotive repowering
projects between 2011 and 2018 to combat the disproportionate quantity of air pollution faced by
environmental justice communities in the NYCMA in part due to their proximity to freight and
commuter rail yards operated by CSX Transportation (CSXT) and New York & Atlantic
Railway (NY&A)49 The rail companies estimated that repowering would reduce annual NOx
emissions from these locomotives by between 33 and 99 percent and PM2.5 by between 81 and
99 percent50—exemplifying the potential that emission reduction projects have to benefit
environmental justice communities. [EPA-HQ-OAR-2022-0985-1526-A1, p. 8]

48 See NYSDOH, Asthma Dashboard - State Level, "Current asthma prevalence among adults, 2020,"
https://webbil.health.ny.gov/SASStoredProcess/guest7_progranF/EBI/PHIG/apps/asthma_dashboard/ad_d
ashboard&p=tbl&ind_id=ad28. The asthma rate for individuals in New York City earning less than
$25,000 annually is between 13.6 and 14 percent, while the U.S. rate is 9.2 percent and the U.S. rate for
earning less than $25,000 annually is between 11.2 and 13.8 percent.

49 See EPA, "New York City Locomotive Repowers: Collaborative Efforts to Improve Air Quality,"
https://www.epa.gov/ports-initiative/new-york-city-locomotive-repowers-collaborative-efforts-improve-air-
quality.

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50 Id.

Pennsylvania also has a significant number of railyards in urban areas, many of which are
adjacent to or surrounded by environmental justice communities. More populous areas with
elevated levels of ozone and PM concentrations, such as the Pittsburgh area (Beaver, Allegheny,
Westmoreland, Washington Counties), have significant rail operations and emissions. [EPA-HQ-
OAR-2022-0985-1526-A1, p. 8]

Accordingly, reducing emissions from locomotives is a critical step towards dismantling
historical patterns of environmental injustice burdening communities near railyards and related
industrial infrastructure. [EPA-HQ-OAR-2022-0985-1526-A1, p. 8]

C. Reducing Diesel Locomotive Emissions Is Important For our States To Attain and
Maintain Federal Air Quality Standards

The CAA requires EPA to set, and regularly review and revise, federal health-based ambient
air quality standards for "criteria pollutants," including PM2.5, NOx, and ground-level ozone.51
Depending on whether the air quality in an area meets the NAAQS for a particular pollutant,
EPA designates the area as being in "attainment" or "nonattainment." EPA further classifies
areas that are in nonattainment according to the severity of their air pollution problem, and areas
with more severe pollution levels are generally given more time to meet the standard while being
subject to more stringent control requirements. [EPA-HQ-OAR-2022-0985-1526-A1, pp. 8-9]

51 42 U.S.C. §§7408-7409.

As of May 31, 2021, California had nineteen 8-hour ozone nonattainment areas and the only
three extreme nonattainment areas in the nation: South Coast Air Basin, San Joaquin Valley, and
Coachella Valley.52 South Coast Air Basin and San Joaquin Valley Air Basin also fail to meet
ambient air quality standards for PM2.5.53 The South Coast Air Basin has the highest ozone
levels in the nation.54 For the South Coast Air Basin to meet the federal ozone standards, overall
NOx emissions need to be reduced to 60 tons per day in 2037, an approximately 80 percent
reduction from 2018 levels.55NOx emission reductions are also key to reducing PM2.5 pollution,
as NOx contributes to the formation of secondary PM2.5.56 Reducing locomotive emissions will
be an important element in attaining the NAAQS ozone and/or PM standards.57 EPA has
recognized that emissions from locomotives generate significant emissions of PM2.5 and NOx
that contribute to nonattainment of the NAAQS for PM2.5 and ozone.58 [EPA-HQ-OAR-2022-
0985-1526-A1, p. 9]

52 CARB, 2016 State Strategy for the State Implementation Plan for Federal Ozone andPM2.5 Standards
(March 7, 2017), available at: https://ww2.arb.ca.gov/resources/documents/2016-state-strategy-state-
implementation-plan-federal-ozone-and-pm25-standards.

53 EPA, "Status of California Designated Areas,"

https://www3.epa.gov/airquality/urbanair/sipstatus/reports/ca_areabypoll.html (hereinafter Status of CA
Designated Areas).

54 Ibid.

55 South Coast Air Quality Management District, 2022 Clean Air Management Plan, Chapter 5, p. 5-17,
available at: http://www.aqmd.gov/docs/default-source/clean-air-plans/air-quality-management-plans/2022-
air-quality-management-plan/08-

ch5.pdf?s!Vrsn=8#:~:text=%E2%80%A2Without%20additional%20control%20measures%2C%20the%20
South%20Coast%20Air,is%2071%20percent%201ower%20than%20the%202037%20baseline.

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56 EPA, "Ground-level Ozone Basics," https://www.epa.gov/ground-level-ozone-pollution/ground-level-
ozone-basics; EPA, Evaluating the Contribution of PM2.5 Precursor Gases and Re-entrained Road
Emissions to Mobile Source PM2.5 Particulate Matter Emissions, p. 22, available at:
https://www3.epa.gov/ttnchiel/conference/eil3/mobile/hodan.pdf. See also CARB, Staff Report Proposed
SIP Revision for the 15 |ig/m3 Annual PM2.5 Standard for the San Joaquin Valley, p. 1 (August 13, 2021),
available at: https://ww2.arb.ca.gov/sites/default/files/2021-
08/SJV%2015%20ug%20SIP%20Revision%20Staff%20Report%20FINAL.pdf.

57 See, e.g., CARB, 2022 State Strategy for the State Implementation Plan, p. 6 (September 22, 2022),
available at:

https://ww2.arb.ca.gOv/sites/default/files/2022-08/2022_State_SIP_Strategy.pdf (hereinafter 2022 State SIP
Strategy).

58 "Control of Emissions of Air Pollution from Locomotive Engines and Marine Compression-Ignition
Engines Less Than 30 Liters per Cylinder; Republication," 73 Fed. Reg. 37,096, 37,099 (June 30, 2008)
(hereinafter 2008 Locomotives Rule).

Further, as demonstrated by the location of disadvantaged communities within NAAQS
nonattainment areas, reducing locomotive emissions is critical to solving the pollution problem
that plagues these communities. In California, more than half of the population (21 million out of
nearly 40 million) live in areas that exceed the most stringent 70 ppb ozone standard.59 A
disproportionate number of California's population also live in areas designated extreme
nonattainment.60 These Californians often live in low-income and disadvantaged communities
that experience greater exposure to diesel exhaust and other toxic air pollutants compared to
surrounding areas. [EPA-HQ-OAR-2022-0985-1526-A1, pp. 9-10]

59 Status of CA Designated Areas; U.S. Census Bureau, Population Division, Annual Estimates of the
Resident Population for Counties in California: April 1, 2020 to July 1, 2022 (CO-EST2022-POP-06)
(March 2023), available at: https://www2.census.gov/programs-surveys/popest/tables/2020-
2022/counties/totals/co-est2022-pop-06.xlsx.

60 Id.

The New York Metropolitan area ozone nonattainment area (which also includes parts of New
Jersey and Connecticut) failed to reach attainment by the deadline for serious nonattainment of
the 2008 ozone NAAQS and, in 2022, was re-classified to severe nonattainment status for that
NAAQS.61 As such, more than 60 percent of the state population (over 12 million out of about
20 million)—including several environmental justice communities—live in areas exceeding
ozone standards.62 [EPA-HQ-OAR-2022-0985-1526-A1, p. 10]

61 See "Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and
Reclassification of Areas Classified as Serious for the 2008 Ozone National Ambient Air Quality
Standards," 87 Fed. Reg. 60,926 (Oct. 7, 2022).

62 See U.S. Census Bureau, "QuickFacts New York; United States," Population, April 1, 2020, available
at: https://www.census.gov/quickfacts. This estimate was calculated by adding the populations for all nine
counties (Bronx, Kings, Nassau, New York, Queens, Richmond, Rockland, Suffolk, and Westchester)
classified as in nonattainment.

Prior to EPA's last revision of its locomotive regulations, a study commissioned by New
York State Energy Research and Development Authority (NYSERDA) determined that off-road
diesel emissions significantly impact ambient air quality across New York and contribute to
nonattainment in New York City.63 [EPA-HQ-OAR-2022-0985-1526-A1, p. 10]

-------
63 See Southern Research Institute, NYSERDA Clean Diesel Technology: Non-Road Field Demonstration
Program, Development of the 2002 Locomotive Survey for New York State, p. 1-1 (February 9, 2007),
available at: https://www.nyserda.ny.gov/-

/media/Project/Nyserda/Files/Publications/Research/Environmental/locomotive-survey-clean-diesel-
technology.pdf (hereinafter NYSERDA Report).

D. Railroads Continue to Operate Old, Highly Polluting Locomotives

Class I railroads operate the majority of locomotives in our States and are responsible for the
majority of locomotive emissions. The two Class I railroads operating in California—Union
Pacific (UP) and BNSF Railway (BNSF)—operate approximately 12,000 freight interstate line
haul locomotives annually within the State, representing about 85 percent of the statewide
locomotive activity and emissions.64 UP and BNSF also operate switcher locomotives, or those
traveling around rail yards, representing about five percent of the statewide locomotive activity
and emissions.65 A much smaller number of Class II and III railroads, industrial operators, and
passenger railroads also operate in the State.66 By 2030, locomotive emissions are projected to
contribute 14 percent of the California's PM2.5 freight emissions and 16 percent of the State's
NOx freight emissions.67 [EPA-HQ-OAR-2022-0985-1526-A1, p. 10]

64 CARB ISOR, Appendix G, p. 14, available at:

https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/locomotive22/appg.pdf.

65 Id.

66 Id., pp. 24, 28, 32.

67 2022 State SIP Strategy, p. 110.

Four Class I railroads operate within New York: CSX Transportation (CSX), Canadian
National Railway (CN), Canadian Pacific Railway (CP), and Norfolk Southern Railway (NS).68
Up to 35 additional regional or shortline roads operate, along with 10 tourist railroads, and five
commuter/intercity railroads, some of which also receive freight vehicles.69 New York &
Atlantic Railway (NYA), for example, which has a fleet of 14 locomotives, operates freight
trains on the lines owned by the Long Island Rail Road (LIRR), the busiest passenger system in
the United States.70 The most recent comprehensive survey of locomotives conducted by
NYSERDA indicated that at least 245 Class I, II, and III locomotives were in operation in 2002,
as well as 160 commuter locomotives and 32 switchers.71 According to the most recent EPA
National Emissions Inventory data, in New York locomotives contributed 17.3 percent of
statewide freight emissions of NOx and 15.3 percent of PM2.5.72 [EPA-HQ-OAR-2022-0985-
1526-A1, p. 11]

68 See NYSDOT, Freight Rail Service in New York State,

https://www.dot.ny.gov/divisions/operating/opdm/passenger-rail/freight-rail-service-in-new-york-state.

69 Id.

70 See Anacostia, New York & Atlantic Railway, p. 1 (Jan. 2023), available at:
https://www.anacostia.eom/wp-content/uploads/2023/01/NY A-Profile23 .pdf.

71 See NYSERDA Report, pp. 2-24 through 2-27.

72 EPA, 2020 National Emissions Inventory Data, accessed via: https://www.epa.gov/air-emissions-
inventories/2020-national-emissions-inventory-nei-data (hereinafter NEI Data). Total freight emissions
were calculated by adding emission totals for locomotives, commercial marine vessels, and on-road heavy
duty vehicles.

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Similarly, in Pennsylvania, locomotive operations contribute a total of 12,182.80 tons per year
of NOx and 316.30 tons of PM2.5, amounting to 19.4 percent of total statewide freight emissions
ofNOx and 17.4 percent of PM2.5 emissions.73 In Oregon, locomotives contribute 13.6 percent
of statewide freight emissions ofNOx and 11.8 percent of PM2.5.74 [EPA-HQ-OAR-2022-0985-
1526-A1, p. 11]

73 NEI Data. Total freight emissions were calculated by adding emission totals for locomotives,
commercial marine vessels, and on-road heavy duty vehicles.

74 NEI Data. Total freight emissions were calculated by adding emission totals for locomotives,
commercial marine vessels, and on-road heavy duty vehicles.

EPA has adopted five emission standards tiers for new locomotives, Tiers 0 through 4, with
Tier 0 being the least stringent and Tier 4 being the most stringent.75 Per EPA regulations, a
locomotive is classified in an emissions Tier based on its original manufacture date 76 A
locomotive must comply with the emissions Tier applicable to its original manufacture date if it
is remanufactured, as defined in EPA's regulations, unless or until it is freshly manufactured,
when it would be subject to the more stringent Tier 4 standards.77 In spite of the wide
commercial availability of cleaner locomotives—which, if put to full use, could cut average
emissions by up to 80 percent—EPA's data demonstrates that operators continue to operate
locomotives that emit up to nearly 8 times more NOx per gallon of fuel and 20 times more PM
than the cleanest levels required by EPA's most stringent Tier 4 emission standards (applicable
to locomotives and locomotive engines first put into service in 2015 or later).78 [EPA-HQ-OAR-
2022-0985-1526-A1, p. 11]

75 40 C.F.R. § 1033.101.

76 Id.

77 Id., § 1033.640(d).

78 CARB ISOR, p. 27; NEI Methodology, p. 5, Table 5.

Indeed, NOx emission reductions from locomotives have not kept pace with NOx reductions
in other freight transport sectors. For example, in 2008, EPA found that the per horsepower-hour
emission levels for locomotive and marine diesel engines remained at much higher levels than
emissions from highway and other nonroad diesel engines, which are comparable to the
emissions for highway trucks in the early 1990s.79 In California, trucks have become much
cleaner over the last decade and are moving towards Zero Emissions ("ZE") technology. NOx
emissions from light-duty vehicles, heavy-duty trucks, and off-road equipment in the South
Coast Air Basin have declined by 75 percent since 2000, while emissions from locomotives and
other federally regulated sources have declined by half that amount over the same period.80
Locomotives are quickly becoming one of the top mobile-source polluters in California on a per
transport-container basis.81 Trucks will be the cleaner mode of moving freight in California as of
this year, 2023.82 [EPA-HQ-OAR-2022-0985-1526-A1, p. 12]

79 2008 Locomotives Rule, at 37,100.

80 CARB, 2020 Mobile Source Strategy, p. 74 (Oct. 28, 2021) available at:
https://ww2.arb. ca.gov/sites/default/files/2021-12/2020_Mobile_Source_Strategy .pdf.

81 CARB, Draft Truck vs. Train Emissions Analysis (Sept. 23, 2020),
https://ww2.arb.ca.gov/resources/fact-sheets/draft-truck-vs-train-emissions-analysis.

-------
82 Id.

EPA's data shows that in 2020, total nationwide emissions from all locomotives were 461,726
tons of NOx and 11,736.90 tons of PM.83 Locomotives also emitted 36,492,845 tons of carbon
dioxide, a primary greenhouse gas contributing to climate change.84 Again, this demonstrates
that locomotives are becoming an increasingly large proportion of mobile source emissions while
other sources' emissions are declining. Further, these figures were likely approximately 15
percent below average due to the effects of the COVID-19 pandemic.85 [EPA-HQ-OAR-2022-
0985-1526-A1, p. 12]

83 NEI Methodology, p. 17, Table 16.

84 Id.

85 Id.

Organization: Westinghouse Air Brake Technologies Corporation (Wabtec)

I. THE BENEFITS OF RAIL

Rail is the most efficient and sustainable means of moving people and goods over land.

Freight railroads, on average, move one ton of freight 500 miles per gallon of fuel. On average,
trains also are 3-4 times more fuel-efficient than trucks.2 According to EPA data, freight railroads
account for 0.5% of total U.S. GHG emissions and just 1.7% of all transportation-related GHG
emissions.3 In fact, moving freight by rail instead of trucks lowers GHG emissions on average by
75%). If 50% of truck traffic over 500 miles was moved to rail, GHG emissions would decrease
by approximately 60 million tons per year. [EPA-HQ-OAR-2022-0985-1580-A1, p. 2]

2 Association of American Railroads, Freight Railroads & Climate Change: Reducing Emissions,

Enhancing Resiliency (Jun. 2023), https://www.aar.org/wp-content/uploads/2023/06/AAR-Climate-

Change-2023-Report.pdf.

3 U.S. EPA, Inventory of U.S. GHG Emissions and Sinks, 1990-2021, Table 2-13: Transportation-Related

GHG Emissions, https://www.epa.gov/svstem/files/documents/2023-04/US-GHG-Inventorv-2023-Main-

Textpdf.

Freight rail is safer than on-road transport and protects the nation's infrastructure as well.
Freight rail causes 22 times fewer deaths and injuries per year than trucking.4 A single freight
train can replace several hundred trucks, making our freeways less congested, compounding
safety benefits for motorists. And, according to the Texas Transportation Institute, highway
congestion wasted $190 billion in time (8.7 billion hours) and fuel (3.5 billion gallons) in 2019.5
Shifting freight from on-road trucks to rail also reduces highway wear and tear and thus
alleviates the need to build costly new highways. [EPA-HQ-OAR-2022-0985-1580-A1, p. 2]

4 Bureau of Transportation Statistics, Transportation by Mode, 2020,

https://www.bts.gov/content/transportation-fatalities-mode.

5 Texas Transportation Institute, 2019 Urban Mobility Report,

https://static.tti.tamu.edu/tti.tamu.edu/documents/umr/archive/mobilitv-report-2019.pdf.

As EPA considers various policy alternatives to improve local air quality and control
emissions from locomotives, including revising its federal preemption regulations for

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locomotives and locomotive engines in the Proposed Rule, it is important to recognize the
undeniable environmental and other benefits that rail transportation already provides in the
United States. [EPA-HQ-OAR-2022-0985-1580-A1, p. 2]

III. FUTURE LOCOMOTIVE TECHNOLOGY ROAD MAP & CHALLENGES TO
COMMERCIAL ADOPTION

Building on its history of technology leadership for the rail and locomotive industry, Wabtec
continues to innovate and develop technologies to enable a fully decarbonized rail transportation
network. These research, development, and demonstration efforts recognize the different needs
and operating environments of railroad operators and the challenges that must be addressed prior
to commercial adoption. [EPA-HQ-OAR-2022-0985-1580-A1, p. 6]

A. Future Technology Road Map

Taking into consideration the significant energy demands for moving heavy-haul trains over
long distances and the infrastructure needs for supplying energy across the vast rail network, the
railroad industry will be difficult to decarbonize. While battery-electric technology is a potential
solution to deploy zero-emission locomotive technologies, it is not suitable for every operating
environment. Specifically, line-haul operations demand much greater energy density and may be
more suitable to alternative, low-emission energy sources like hydrogen. Looking forward, if the
hydrogen supply grows to meet demand, Wabtec believes hydrogen eventually will be the next
step in rail innovation. Hydrogen in an internal-combustion engine ("ICE") will likely be the first
demonstrable hydrogen rail technology. This application would allow the current installed base
powered by diesel-electric ICE to leverage the benefits of hydrogen fuel. [EPA-HQ-OAR-2022-
0985-1580-A1, p. 6]

Longer term, new locomotives will be produced using a combination of battery and hydrogen
fuel cell technology to provide a path to zero-emission freight movement by rail. However,
today's hydrogen fuel cell power density is not aligned with a locomotive's power demands.
Current fuel cell systems can be procured in units of 75 to 200 Kilowatt ("kW"), whereas a
standard line-haul locomotive is powered by 3,300 kW engines. Stringing 15 to 45 fuel cell
systems together is unlikely to provide sufficient reliability to a railroad operator. Thus, fuel cell
technology must significantly advance and prove to be reliable in rail operations before operators
will adopt the technology. [EPA-HQ-OAR-2022-0985-1580-A1, p. 6]

Given the current state of the research, development, and demonstration for hydrogen
propulsion technologies - both within the ICE and using battery and fuel cell technologies,
Wabtec is unable to predict when such technologies will be ready for commercial
adoption. [EPA-HQ-OAR-2022-0985-1580-A1, p. 6]

B. Challenges to Commercial Adoption of Alternative Propulsion Technologies

Despite being at the forefront of innovation for rail and locomotive technologies, Wabtec
acknowledges that there are several key challenges that must be addressed to enable commercial
adoption of alternative propulsion technologies like battery-electric and hydrogen ICE or fuel
cells. [EPA-HQ-OAR-2022-0985-1580-A1, p. 7]

First, the current state of research, development, testing, and readiness for commercial
adoption varies by locomotive propulsion technology type. The design, development, and

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demonstration of alternative energy propulsion technologies remain in various phases of pilot
and test programs. As a disruptive technology, a critical path to commercializing battery-electric
locomotives in the rail industry is additional testing and demonstrating this technology in day-to-
day operations. A new locomotive technology typically requires up to 30 to 50 locomotive years
of operation before it can be considered fully mature and integrated into commercial railroad
operations. [EPA-HQ-OAR-2022-0985-1580-A1, p. 7]

Interoperability and infrastructure are additional and significant barriers to adopting new
technology. Managing a locomotive fleet with multiple different energy demands (e.g., battery,
hydrogen, diesel, electricity, etc.) forces rail operators to invest and maintain different
infrastructure for each form of technology. Rail operators also need to ensure each technology
stays within reach of the power source. The U.S. rail network moves more than a 6 billion tons
of freight a year across nearly 140,000 miles of track between and among 49 states and the
District of Columbia. Thus, proximity to rail yards and the associated charging and/or refueling
infrastructure required for alternative propulsion technologies may constrain rail operators'
ability to power certain locomotives. [EPA-HQ-OAR-2022-0985-1580-A1, p. 7]

There are numerous operational variables that must be addressed to seamlessly integrate new
locomotive technologies into railroad fleets. For example, both FLXdrive 2.0 and FLXswitch 2.0
utilize external charging and dynamic braking for battery charging. Wabtec estimates that, for an
average 12-hour rail yard shift, the FLXswitch locomotive will need to charge for four hours to
complete its shift. Wabtec further envisions, in alignment with customer inputs and other
suppliers, FLXdrive 2.0 and FLXswitch 2.0 would be supported by a wayside charging system
for stationary charging with DC input utilizing an off-board reverse pantograph. These charging
technologies and the associated infrastructure are still being developed to support battery-electric
locomotives. Infrastructure for refueling hydrogen fuel cells or trains is even more uncertain
when compared to battery charging capabilities. Ensuring safe operations, reducing downtime,
and maintaining close proximity to necessary infrastructure, must be achieved to ensure that any
alternative propulsion locomotive technology is seamlessly integrated into a railroad's
operations. [EPA-HQ-OAR-2022-0985-1580-A1, p. 7]

Alternative propulsion technologies face various supply chain constraints and hurdles as well.
To support the eventual adoption of hydrogen technology in the rail industry, hydrogen
production and distribution infrastructure projects need to accelerate drastically. Producing clean
hydrogen from low-carbon energy is still very costly. But, that will likely change in the coming
decades while the rail industry continues to develop and test alternative propulsion locomotives.
An International Energy Agency ("IEA") analysis finds that the cost of producing hydrogen from
renewable electricity could fall 30% by 2030 as a result of declining costs of renewables and
the scaling up of hydrogen production.15 Developing hydrogen refueling infrastructure to support
locomotive operations also needs to significantly accelerate in order for the rail industry to safely
adopt hydrogen technologies and harness hydrogen's economic and environmental benefits.
Considering these factors, hydrogen locomotive technology cannot be widely adopted across the
U.S. within the next 8-10 years without significant investment in research, development, and
demonstration activities by the rail industry. Still, Wabtec believes that hydrogen powered
locomotives are essential to the long-term rail industry roadmap to decarbonization, especially
for line-haul operations. [EPA-HQ-OAR-2022-0985-1580-A1, pp. 7-8]

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15 International Energy Agency, The Future of Hydrogen (June 2019), https://www.iea.org/reports/the-
future-of-hvdro gen.

Similar constraints exist related to battery-powered locomotives. The U.S. battery and rare
earth minerals supply chain primarily depends on China today. The United States has a small
role in the global battery supply chain, with only 7% of battery production capacity. Most key
minerals for batteries are mined in resource-rich countries such as Australia, Chile, and the
Democratic Republic of Congo, and handled by a few major companies. The production speed
and industry-wide capacity of battery-electric locomotives will be greatly affected by the supply
of critical minerals impacting the broader electric vehicle market. [EPA-HQ-OAR-2022-0985-
1580-A1, p. 8]

In addition, battery-electric locomotives will add new demands to the electrical grid due to the
power needed and the required duration of charging. Put in perspective, the average Tesla stores
about 0.1 MWh of energy. A single FLXdrive locomotive at 8.1 MWh has the equivalent energy
storage of 81 Tesla cars. To maximize efficiency and ensure the continuity of freight operations,
locomotives will need to pull high levels of power from local electrical grids in relatively short
amounts of time. Ensuring the reliability of the power grid has been a topic of critical importance
as Wabtec discusses the FLXdrive technology with various policymakers and other stakeholders.
Moreover, it is a focus of further evaluation and assessment as Wabtec's customers look to
demonstrate battery-electric locomotive technologies in their operating environments. Evaluating
larger scale deployment of battery-electric locomotives must be conducted in collaboration with
local electric utilities to ensure the compatibility and reliability of their infrastructure with
charging for battery-electric locomotives. [EPA-HQ-OAR-2022-0985-1580-A1, p. 8]

Wabtec and the railroad industry are working together to address many of these interrelated
challenges. However, it is difficult to predict the time horizon necessary to address these various
challenges given the importance of engaging diverse stakeholders, leveraging significant
investment for the assets and associated infrastructure, and solving for a dynamic supply chain
environment. [EPA-HQ-OAR-2022-0985-1580-A1, p. 8]

V. CALIFORNIA'S IN-USE LOCOMOTIVE REGULATION DEMONSTRATES WHY
OEMS MUST OPINE ON EPA'S STATE-LEVEL CONTROL DETERMINATIONS

California's In-Use Locomotive Regulation38 highlights why locomotive and locomotive
engine OEMs must be able to offer their expertise and weigh in on EPA state-level control
determinations. Wabtec respectfully submits that certain aspects of California's In-Use
Regulation would in fact "enforce [a] standard or other requirement relating to the control of
emissions" from new locomotives or new engines used in locomotives by imposing new design
and manufacture requirements.39 Section 209(e)(1) of the Clean Air Act prohibits such
requirements. Additionally, and as discussed further below, other aspects of the In-Use
Regulation will actually impede progress in reducing GHG emissions and criteria
pollutants. [EPA-HQ-OAR-2022-0985-1580-A1, p. 14]

38 In-Use Locomotive Regulation, Title 13, California Code of Regulations, Chapter 9, Article 8, Sections
2478 through 2478.17 (hereinafter "In-Use Regulation").

39 42 U.S.C. § 7543(e)(1).

A. In-Use Operational Requirement: 23 Year Life limit & ZE Configuration

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California's In-Use Regulation imposes requirements on locomotives operating in California
beginning January 1, 2030, which are ostensibly "In-Use" requirements,40 but in practice affect
the design and manufacture of "[n]ew locomotives and new engines used in locomotives."41
First, Section 2478.5(a) prohibits operating locomotives that are more than 23 years old (based
on the engine build date) within California starting January 1, 2030. Railroads seeking to operate
in California will therefore be required to retire any non-exempt locomotive with an original
engine build date prior to January 1, 2007, as of January 1, 2030. By 2053, all non-exempt
locomotives must have a 2030 or later build date to operate in California. [EPA-HQ-OAR-2022-
0985-1580-A1, p. 15]

40 In-Use Regulation, § 2478.5. Wabtec does not evaluate the impact of the In-Use Regulation's
Alternative Compliance Plan under Section 2478.7 or the Alternative Fleet Milestone Option under Section
2478.8 for the purposes of this comment. We do acknowledge, however, that specific timing of
requirements imposed on locomotive operators may vary from the In-Use requirements of Section 2478.5
under either the Alternative Compliance Plan or the Alternative Fleet Milestone Option.

4142 U.S.C. § 7543(e)(1)(B).

Second, Section 2478.5(b) requires that all switch, industrial, and passenger locomotives with
engine build dates of 2030 or later "[ojperate in a ZE Configuration at all times while in
California." Section 2478.5(c) imposes the same zero-emission configuration requirement on
freight line-haul locomotives beginning in 2035. To operate in California, all locomotives and
locomotive engines built in 2030 (for switch, industrial, and passenger) or 2035 (for line-haul) or
later must be capable of operating in a zero-emission configuration. [EPA-HQ-OAR-2022-0985-
1580-A1, p. 15]

Together, subsections (a) through (c) necessarily impose a standard related to the control of
emissions from new locomotives or new engines in locomotives beginning in 2030 or 2035
(depending on the locomotive application). Operators will be required to start retiring
locomotives in 2030 once those locomotives have an engine build date of 23 years prior.
Simultaneously, new locomotives with engine build dates of 2030 or 2035 (depending on the
application) must be capable of operating in a zero-emission configuration. By 2053 and 2058
(depending on the application), every non-exempt locomotive and locomotive engine operating
in California must be capable of operating in a zero-emission configuration to comply with
California's regulation. [EPA-HQ-OAR-2022-0985-1580-A1, p. 15]

To enable railroad operators to comply with California's In-Use Regulation, manufacturers
such as Wabtec will have to design and manufacture new locomotives and new engines capable
of zero-emission operations as early as 2030 to enable new locomotive purchases as operators
are forced to retire older models. This also will require a significant amount of research,
development, and investment to deploy zero-emission locomotives widely.42 As the rail industry
transitions to zero-emissions and alternative propulsion technologies, it will need to account for
less mature technologies, as well as several other hurdles that may slow the commercial adoption
rate. It is likely that there will be a much longer horizon for commercialization of zero-
emissions locomotives, which extends well beyond 2030. As discussed above in section III. B.
Challenges to Commercial Adoption of Alternative Propulsion Technologies, broad deployment
of zero-emission locomotives will require investment in sustainable and renewable electricity
supply, more electrical grid stability and connectivity, new charging and refueling infrastructure,
and battery and rare earth minerals stabilized supply chains. Railroads also need assurance that

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new locomotive technologies will deliver reliable and safe operations through many years of
demonstrated field testing and use. [EPA-HQ-OAR-2022-0985-1580-A1, pp. 15 - 16]

42 Wabtec's Tier 4 Evolution Series locomotive development is illustrative. Wabtec's Tier 4 technology
development program, took more than 10 years, starting in 2009 before the effective date of EPA's Tier 4
standard in 2015. Once Wabtec had a successful design in 2015 and manufactured a few hundred
locomotives, it required thousands of locomotive years in revenue service to become a stable and mature
platform for the railroads commencing in 2020. This was a decade-long journey for a diesel-powered
internal combustion engine, a proven technology unlike zero-emission technologies that are in their
infancy.

At the same time, there is no federal requirement that locomotives or locomotive engines built
in or after 2030 or 2035 (depending on the application) be capable of operating in a zero-
emission configuration. The most restrictive federal standards, Tier 4, already offer significant
reductions in local air pollution and GHG emissions from locomotives. California's regulation
will impose a new de facto "standard or other requirement relating to the control of emissions
from . . . [n]ew locomotives or new engines used in locomotives"43 that impermissibly diverges
from the existing federal regulatory landscape, which the Clean Air Act expressly
prohibits. [EPA-HQ-OAR-2022-0985-1580-A1, p. 16]

43 42 U.S.C. § 7543(e)(1).

B. Idling Requirements

The idling requirements in California's In-Use Regulation, by contrast, do not have any
impact on new locomotive or new locomotive engine design and manufacture. California
restricts the time a locomotive engine may idle to "30 minutes after the Locomotive becomes
stationary" with some limited exceptions and exemptions.44 This is a purely operational
requirement and does not run afoul of Section 209(e) of the Clean Air Act's preemption.
Manufacturers do not need to make any design or manufacturing changes to new locomotives or
new locomotive engines to ensure compliance with California's operational idling
requirement. [EPA-HQ-OAR-2022-0985-1580-A1, p. 16]

44 In-Use Regulation, § 2478.9(a).

Evaluating the idling requirement's impact on new locomotive or new engine design or
manufacturing is relatively straightforward, but other contemplated state-level controls will
inevitably be much more difficult to evaluate. Wabtec therefore requests that Part 1074 revisions
continue to allow manufacturers to opine on state-level control proposals through a public notice
and comment process. [EPA-HQ-OAR-2022-0985-1580-A1, p. 16]

C. California's "Zero-Emission" Definition Restricts Design and Manufacture of New
Locomotives and Engines by Unreasonably Prohibiting Near-Zero-Emission Technology Such
as Hydrogen Internal Combustion Engines

Wabtec is making a concerted effort to develop and deploy locomotive technologies that can
drastically reduce GHG and criteria pollutant emissions across the rail sector, including
hydrogen internal combustion engines ("ICE") powered locomotives. But California's In-Use
Regulation definition of "Zero Emission (ZE) Capable Locomotive" would prevent promising
technologies like these from operating in California. [EPA-HQ-OAR-2022-0985-1580-A1, p. 16]

Specifically, under Section 2478.3:

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"Zero Emission (ZE) Capable Locomotive" means a Locomotive that can be Operated in a
Zero Emission Configuration and that can also be Operated using a fuel that produces emissions.
To qualify as a ZE Capable Locomotive for a given Calendar Year, the Operator shall
demonstrate that the Locomotive was only Operated in a ZE Configuration when Operating in
California during that Calendar Year. A ZE Capable Locomotive that has been Operated outside
of a ZE Configuration within California at any point during a Calendar Year shall not qualify as
a ZE Capable Locomotive for that Calendar Year and shall be treated as an emitting Locomotive
based on the U.S. EPA Tier of its engine for the purposes of this Locomotive Regulation.

"Zero Emission (ZE) Configuration" is a Locomotive configuration that Operates in a zero-
emission capacity. ZE Locomotives always Operate in a ZE Configuration. To be considered as
Operating in a ZE Configuration, the Locomotive shall not emit any criteria pollutant, toxic
pollutant, or greenhouse gas from any onboard source of power at any power setting when
Operated in a ZE Configuration, including any propulsion power that is connected to and moves
with the Locomotive when it is in motion. [EPA-HQ-OAR-2022-0985-1580-A1, p. 17]

Thus, to qualify as a "zero emission capable locomotive," a locomotive may not emit any
criteria pollutant. [EPA-HQ-OAR-2022-0985-1580-A1, p. 17]

Hydrogen ICE can operate with minimal C02 emissions (-5% compared to diesel engine),
and hydrogen fuels themselves do not release any PM, carbon monoxide, or VOCs. However,
when burned in an ICE hydrogen produces minimal amounts of NOx emissions, which can be
controlled with aftertreatment systems that eliminate most, but not all, NOx emissions. These
trace amounts of NOx are derived from the nitrogen that already exists in ambient air and are
formed by the combustion process. Similarly, hydrogen ICE may produce trace amounts of PM,
but such emissions are derived solely from small quantities of lubricating oil that may
infrequently enter an ICE cylinder. CARB itself has acknowledged that hydrogen ICE can
"achieve 0.00 g/bh-hr for NOx and 0.000 g/bhp-hr for PM after rounding."45 In spite of that, the
In-Use Regulation's broad "zero emission capable locomotive" definition counterproductively
discourages OEMs from investing in and developing hydrogen ICE locomotives, which could
otherwise offer significant emission reductions. [EPA-HQ-OAR-2022-0985-1580-A1, p. 17]

45 CARB, Public Hearing to Consider the Proposed In-Use Locomotive Regulation, Staff Report: Initial
Statement of Reasons at 97 (Sept. 20, 2022).

Hydrogen fuel cell locomotives could potentially meet CARB's definition of a zero-emission
capable locomotive. However, hydrogen locomotive technology is many years away from
commercial viability. To date, there are still technological and logistical factors hindering
commercialization of hydrogen fuel cell locomotives, including power capabilities for line-haul,
energy efficiency, and speed capabilities. [EPA-HQ-OAR-2022-0985-1580-A1, p. 17]

EPA Summary and Response:

Summary:

The types of comments grouped above under this miscellaneous heading include: information
about short line railroads, railroads in general and railroads in California; concerns about air
quality in California and in other parts of the US impacted by locomotive emissions; concerns
about the health and environmental burdens on communities of the US freight movement system;

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general opinions about streamlined regulations; opinions about proposed California regulations;
opinions about development of future technologies to reduce air emissions from locomotives,
and appeals to EPA to adopt more stringent locomotive emission standards.

Response:

The several subjects raised in the miscellaneous comments presented above present numerous
issues that may be addressed in separate future actions, but they do not directly relate to the
specific regulatory action taken here to revise EPA's locomotive preemption regulations. In
some cases they relate to possible future actions that EPA may consider in the coming years. For
example, we did not propose, nor can we finalize in this action, any regulations to reduce the air
emissions from new locomotives or new engines used in locomotives. We also did not propose
and cannot at this time take any action regarding any version of California's rules under
development regarding locomotives. We share the concerns expressed about the exposures and
health effects of residents in communities near rail yards. We appreciate those detailed
comments which could provide support for a future EPA action. However, these miscellaneous
comments are not of central relevance to the outcome of this specific final rule, and we are not
further addressing them here.

83

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Appendix A: Other Comments Received, Not Reproduced
Verbatim in Text

We identified three general comments mentioning locomotive preemption, which we have not
repeated verbatim above in this document. The Washington State Department of Ecology and
Christopher Lish both offered general support for our proposal. The Sierra Club offered general
support for our locomotive preemption proposal, and their comment letter was signed by 32
advocacy groups.

Docket ID No. of Comment

Name

EPA-HQ-OAR-2022-0985-1476

Washington State Department of Ecology

EPA-HQ-OAR-2022-0985-1557

Christopher Lish

EPA-HQ-OAR-2022-0985-1636

Sierra Club et al.

84

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Appendix B: List of Testifiers at Public Hearings

16 people mentioned locomotive preemption in their testimony at our public hearings.

Hearing
Day

Docket ID No. of
Testimony Transcript

Page
Nos.

Name

Affiliation

Day 1

EPA-HQ-OAR-2022-
0985-2666

24-27

Paul Billings

American Lung Association

Day 1

EPA-HQ-OAR-2022-
0985-2666

33-36

Will Barrett

American Lung Association

Day 1

EPA-HQ-OAR-2022-
0985-2666

114-117

Britt Carmon

Natural Resources Defense
Council (NRDC)

Day 1

EPA-HQ-OAR-2022-
0985-2666

238-240

Athena Motawef

Earthjustice

Day 1

EPA-HQ-OAR-2022-
0985-2666

263-265

Larry Hopkins

UE Local 1177

Day 1

EPA-HQ-OAR-2022-
0985-2666

266-268

Cedric Whelchel

UE Local 1177

Day 1

EPA-HQ-OAR-2022-
0985-2666

268-270

Tim Gould

Private Citizen

Day 1

EPA-HQ-OAR-2022-
0985-2666

362-365

Molly Greenberg

Moving Forward Network (MFN)

Day 2

EPA-HQ-OAR-2022-
0985-2666

44-47

Rachel Patterson

Evergreen Action

Day 2

EPA-HQ-OAR-2022-
0985-2666

73-76

Ryan Makarem

Clean Air Now

Day 2

EPA-HQ-OAR-2022-
0985-2666

89-91

Andrew
Dinkelaker

United Electrical Radio and
Machine Workers of America

Day 2

EPA-HQ-OAR-2022-
0985-2666

145-148

Elaine O'Grady

Northeast States for Coordinated
Air Use Management (NESCAUM)

Day 2

EPA-HQ-OAR-2022-
0985-2666

183-185

Yasmine Agelidis

Earthjustice Right Zero Campaign

Day 2

EPA-HQ-OAR-2022-
0985-2666

209-211

Yassi Kravezade

Sierra Club My Generation
Campaign

Day 2

EPA-HQ-OAR-2022-
0985-2666

107-109

Reverend Dr.
Jessica Moerman

Private Citizen

Day 2

EPA-HQ-OAR-2022-
0985-2666

283-286

Mary Arnold

Civics United for Railroad
Environmental Solutions

85

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