[Federal Register: April 16, 1998 (Volume 63, Number 73)]
[Rules and Regulations]
[Page 18977-19026]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap98-13]
[[Page 18977]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 85, 89 and 92
Emission Standards for Locomotives and Locomotive Engines; Final Rule
[[Page 18978]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 85, 89 and 92
[FRL-5939-7]
RIN 2060-AD33
Emission Standards for Locomotives and Locomotive Engines
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rulemaking.
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SUMMARY: EPA is promulgating emission standards and associated
regulatory requirements for the control of emissions from locomotives
and locomotive engines as required by the Clean Air Act section
213(a)(5). The primary focus of this rule is the reduction of emissions
of oxides of nitrogen (NOX). The standards will take effect
in 2000 and will ultimately result in a more than 60 percent reduction
in NOX from locomotives. NOX is a precursor to
the formation of ground level ozone, which causes health problems such
as damage to lung tissue, reduction of lung function, and sensitization
of lungs to other irritants, as well as damage to terrestrial and
aquatic ecosystems. EPA is also promulgating standards for emissions of
hydrocarbons (HC), carbon monoxide (CO), particulate matter (PM), and
smoke. The overall cost-effectiveness of today's emissions standards is
158 dollars per ton of NOX, PM and HC reduced. Today's rule
also includes a variety of provisions to implement the standards and to
ensure that the standards are met in-use. These provisions include
certification test procedures, and assembly line and in-use compliance
testing programs. Also included in today's rule is an emissions
averaging, banking and trading program to improve feasibility and
provide flexibility in achieving compliance with the proposed
standards. Finally, EPA is promulgating regulations that preempt
certain state and local requirements relating to the control of
emissions from new locomotives and new locomotive engines, pursuant to
Clean Air Act section 209(e).
DATES: This final rule is effective June 15, 1998, except for
Secs. 92.133, 92.213, 92.216, 92.308, 92.309, 92.406, 92.504, 92.606,
92.708, and 92.910 which are not effective until the Office of
Management and Budget (OMB) has approved the information collection
requirements contained in them. EPA will publish a document in the
Federal Register announcing the effective date for those sections.
Documents will also be published in the Federal Register both when the
information collection request (ICR) is sent to OMB for approval and
when OMB approves the information collection requirements.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 15, 1998.
ADDRESSES: Materials relevant to this final rule are contained in
Docket No. A-94-31, located at the Air Docket, 401 M Street SW,
Washington, DC 20460, and may be reviewed in Room M-1500 from 8:00 a.m.
until noon and from 1:30 p.m until 3:30 p.m. Monday through Friday. As
provided in 40 CFR part 2, a reasonable fee may be charged by EPA for
photocopying docket materials.
FOR FURTHER INFORMATION CONTACT: For information on this rulemaking
contact: John Mueller, U.S. EPA, Engine Programs and Compliance
Division, 2565 Plymouth Road, Ann Arbor, MI 48105; Telephone: (313)
668-4275, Fax: (313) 741-7816. Requests for hard copies of the
preamble, regulation text, Regulatory Support Document (RSD) and
Summary and Analysis of Comments Document (SAC) should be directed to
Carol Connell at (313) 668-4349.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Regulated Entities
III. Statutory Authority
IV. Description of Action
A. Applicability
B. Timing
C. Emission Standards
D. Other Nonroad Engines
E. Useful Life
F. Averaging, Banking and Trading
G. Compliance Assurance
H. Test Procedures
I. Railroad Requirements
J. Miscellaneous
K. Preemption
V. Public Participation
VI. Environmental Effects
VII. Economic Impacts
VIII. Cost-effectiveness
IX. Administrative Designation and Regulatory Assessment
Requirements
A. Executive Order 12866
B. Regulatory Flexibility
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Submission to Congress and the General Accounting Office
X. Copies of Rulemaking Documents
XI. Judicial Review
I. Introduction
The Clean Air Act as amended in 1990 (hereafter referred to as the
Act) mandated that EPA establish emission regulations for a variety of
previously unregulated nonroad mobile sources. Included in those
requirements was a specific mandate to adopt emission standards for
locomotives and locomotive engines. EPA published a Notice of Proposed
Rulemaking (NPRM) proposing emission standards and associated
compliance mechanisms (e.g., test procedures, certification and
enforcement provisions), as well as regulations concerning the
preemption of state and local emission standards and other requirements
for new locomotives and new locomotive engines on February 11, 1997 (62
FR 6365).
A public hearing was held on May 15, 1997 in Romulus, Michigan at
which verbal comments on the NPRM were received. Written comments
responding to the proposal were also received. In total, comments were
received from 31 public and private parties. The Agency fully
considered all comments received in developing today's final rule.
The remaining sections of this preamble describe EPA's resolution
of the issues associated with the rulemaking. Section II describes the
entities affected by this action. Section III describes EPA's legal
authority for this action. Section IV describes today's action and
summarizes the changes made from the proposed regulations. Subsequent
sections cover the public participation portion of the rulemaking
process, the environmental and economic impacts associated with today's
action, and a variety of administrative requirements.
II. Regulated Entities
Entities potentially regulated by this action are those which
manufacture, remanufacture and/or import locomotives and/or locomotive
engines; those which own and operate locomotives; and state and local
governments. Regulated categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
------------------------------------------------------------------------
Industry.................................. Manufacturers,
remanufacturers and
importers of locomotives
and locomotive engines,
railroad owners and
operators.
Government................................ State and local
governments.\1\
------------------------------------------------------------------------
\1\ It should be noted that the regulations do not impose any
requirements on state and local governments (other than those that own
or operate local and regional railroads), but rather implement the
Clean Air Act preemption provision for locomotives.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be
[[Page 18979]]
regulated. To determine whether your company is regulated by this
action, you should carefully examine the applicability criteria in
sections 92.1, 92.801, 92.901 and 92.1001 of the regulatory text in
this document, as well as 40 CFR 85.1601 and 89.1. If you have
questions regarding the applicability of this regulation to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
III. Statutory Authority
Authority for the actions promulgated in this document is granted
to the Environmental Protection Agency (EPA) by sections 114, 203, 204,
205, 206, 207, 208, 209, 213, 215, 216 and 301(a) of the Clean Air Act
as amended in 1990 (CAA or ``the Act'') (42 U.S.C. 7414, 7522, 7523,
7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550 and 7601(a)).
EPA is promulgating emission standards for new locomotives and new
engines used in locomotives pursuant to its authority under section 213
of the Clean Air Act. Section 213(a)(5) directs EPA to adopt emissions
standards for ``new locomotives and new engines used in locomotives
that achieve the greatest degree of emissions reductions achievable
through the use of technology that the Administrator determines will be
available for such vehicles and engines, taking into account the cost
of applying such technology within the available time period, and
noise, energy, and safety factors associated with the application of
such technology.'' As described in this document and in the regulatory
support document, EPA has evaluated the available information to
determine the technology that will be available for locomotives and
engines proposed to be subject to EPA standards.
EPA is also acting under its authority to implement and enforce the
locomotive emission standards. Section 213(d) provides that the
standards EPA adopts for new locomotives and new engines used in
locomotives ``shall be subject to sections 206, 207, 208, and 209'' of
the Clean Air Act, with such modifications that the Administrator deems
appropriate to the regulations implementing these sections. In
addition, the locomotive standards ``shall be enforced in the same
manner as [motor vehicle] standards prescribed under section 202'' of
the Act. Section 213(d) also grants EPA authority to promulgate or
revise regulations as necessary to determine compliance with, and
enforce, standards adopted under section 213. Pursuant to this
authority, EPA is requiring that manufacturers (including
remanufacturers) of new locomotives and new engines used in locomotives
must obtain a certificate of conformity with EPA's emissions standards
and requirements, and must subject the locomotives and engines to
assembly line and in-use testing. The language of section 213(d)
directs EPA to generally enforce the locomotive emissions standards in
the same manner as it enforces motor vehicle emissions standards.
Pursuant to this authority, EPA is promulgating regulations similar to
those adopted for motor vehicles and engines under section 203 of the
Act, which prescribes certain enforcement-related prohibitions,
including a prohibition against introducing a new vehicle or engine
that is not covered by a valid certificate of conformity into commerce,
a prohibition against tampering, and a prohibition on importing a
vehicle or engine into the United States without a valid, applicable
certificate of conformity. In addition, EPA is promulgating emission
defect regulations that require manufacturers to report to EPA
emissions-related defects that affect a given class or category of
locomotives or locomotive engines.
EPA is also promulgating regulations to clarify the scope of the
Act's preemption of state regulation. Section 209(e) prohibits states
from adopting and enforcing standards and other requirements relating
to the control of emissions from new locomotives and new engines used
in locomotives. This provision also grants EPA authority to adopt
regulations to implement section 209(e). Pursuant to this authority,
EPA is promulgating regulations to implement the express preemption of
state emissions standards for new locomotives and new engines used in
locomotives, for the purpose of clarifying the scope of preemption for
states and industry.1
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\1\ EPA, the State of California and the Class I freight
railroads operating in Southern California have been developing a
unique, voluntary railroad fleet average program to achieve
additional NOx reductions for the South Coast ozone nonattainment
area. The program would be implemented principally by the railroads
and the California Air Resources Board. The parties are structuring
this agreement to achieve their mutual goals, including successful
implementation of the unique consultative process in the EPA's
approval of the 1994 California state implementation plan (SIP)
revisions for the South Coast. In particular, the agreed fleet
average program will achieve reductions that meet the targets of
measure M-14 included in the 1994 California SIP revisions approved
by EPA in 1996. In the event that the agreement fails to attain its
identified emission reductions, and is terminated as provided by the
agreement, EPA has reserved and will exercise its authorities to
assure emission reductions from railroads and/or, if necessary, from
other national transportation sources.
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IV. Description of Action
This section contains a description of each provision of today's
rule. This rule contains emission standards not only for locomotives
originally manufactured after the effective date of the standards, but
also for existing locomotives originally manufactured after 1972, when
remanufactured after the applicable effective date of today's action.
Today EPA is adopting the first national emission regulations
applicable to locomotives. In addition to emission standards, this rule
contains a variety of compliance and enforcement provisions, as well as
regulations concerning the preemption of certain state and local
controls over locomotives. Each of these items is discussed in detail
in this section and in the Summary and Analysis of Comments document
(SAC) accompanying this rule. For complete information on the new
program requirements the reader is referred to the accompanying
regulations appearing at the end of today's document. The reader is
also referred to the complete Title 40 , parts 85 and 89 of the Code of
Federal Regulations, which this rulemaking amends.2
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\2\ The regulations published at the end of this document do not
include a paragraph that was inadvertently included in the
regulations signed by the Administrator on December 17, 1997 and
released to the public electronically on December 18, 1997. The
final rule, as signed by the Administrator and released
electronically, contained a regulatory provision that was included
in a staff-level draft, but was intended to be deleted from the
final version prior to signature. However, due to a mistake, EPA
staff inadvertently failed to delete this particular provision prior
to signature. In this action, the Administrator removed the
following paragraph from the final locomotive emissions regulations:
``(2) Where the manufacturer or remanufacturer identifies the
reason(s) that the failing locomotives failed to comply with the
applicable emission standards, and demonstrates, to the
Administrator's satisfaction, that such reason(s) was (were) beyond
the control of the manufacturer or remanufacturer (or its suppliers,
or other entities contracted by the manufacturer or remanufacturer
to provide goods or services for the manufacture or remanufacture of
the locomotive), EPA will not pursue remedial action against the
manufacturer or remanufacturer.''
To the extent that the rule signed on December 17, 1997 may be
deemed to have been promulgated, EPA finds good cause for removing
this paragraph without prior notice and comment, since such
procedure is unnecessary, and contrary to the public interest.
Public notice and comment is unnecessary because EPA is simply
removing from the regulatory text a paragraph that the Agency did
not intend to include in the final locomotive regulations. Moreover,
public notice and comment in this instance is contrary to the public
interest because it would delay publication and effectiveness of
these emission standards, which would result in delaying the
emission benefits that will be achieved through implementation of
these standards.
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[[Page 18980]]
A. Applicability
Section 213(a)(5) of the Act specified that EPA establish emission
standards for ``new locomotives and new engines used in locomotives.''
Thus, the general applicability of this action is determined by the
definition of ``new locomotive'' and ``new locomotive engine''. The Act
does not define ``new locomotive'' or ``new locomotive engine.'' EPA is
today exercising its discretion to interpret the terms in the Act that
Congress did not expressly define, and is adopting a regulatory
definition of ``new locomotive'' and ``new locomotive engine''
consistent with the Act's definition of ``new motor vehicle'' and with
EPA's previously adopted definition of ``new'' for other nonroad
vehicles and engines. EPA is defining ``new locomotive'' and ``new
locomotive engine'' to mean a locomotive or locomotive engine the
equitable or legal title to which has never been transferred to an
ultimate purchaser; and a locomotive or locomotive engine that has been
remanufactured, until it is placed back into service. Where the
equitable or legal title to a locomotive or locomotive engine is not
transferred before the engine or vehicle is placed into service, then
the locomotive or locomotive engine will be new until it is placed into
service. EPA is also defining imported locomotives and locomotive
engines to be new unless they are covered by a certificate of
conformity at the time of importation. Finally, EPA is limiting the
applicability of the definition of new locomotive and new locomotive
engine to locomotives and locomotive engines originally manufactured
after 1972. As is described in the RSD, the applicability is limited in
this manner to eliminate the unwarranted burden of bringing very old
locomotives into compliance.
The definition of ``new locomotive'' and ``new locomotive engine''
is consistent with, but not identical to, the definition of ``new
nonroad engine'' and ``new nonroad vehicle'' that EPA promulgated on
July 20, 1994 (59 FR 36969), and revised on October 24, 1996 (61 FR
52102). The definition of ``new nonroad engine'' includes only freshly
manufactured engines, while today's definition of ``new locomotive''
and ``new locomotive engine'' includes both freshly manufactured and
remanufactured locomotives and engines, for the reasons described
below.
The Agency is defining ``remanufacture'' of a locomotive as a
process in which all of the power assemblies of a locomotive engine are
replaced with freshly manufactured (containing no previously used
parts) or refurbished power assemblies, or are inspected and qualified.
Inspecting and qualifying previously used parts can be done in several
ways, including such things as cleaning, measuring physical dimensions
for proper size and tolerance, and running performance tests to assure
that the parts are functioning properly and according to
specifications. The refurbished power assemblies could include some
combination of freshly manufactured parts, reconditioned parts from
other previously used power assemblies, and reconditioned parts from
the power assemblies that were replaced. In cases where all of the
power assemblies are not replaced at a single time, a locomotive will
be considered to be ``remanufactured'' (and therefore ``new'') if all
of the power assemblies from the previously new engine had been
replaced within a five year period.
EPA's determination that remanufactured locomotives and engines are
new is based on the remanufacturing practices of Class I railroads,
which use more than 90 percent of the fuel used in the current
locomotive fleet, and thus create more than 90 percent of total
locomotive fleet emissions. EPA is exempting from the definition of
``new locomotive'' and ``new locomotive engine'' remanufactured
locomotives and engines owned and operated by small railroads (as
defined by the Small Business Administration), pursuant to the Agency's
authority to adopt de minimis exemptions from statutory requirements
where the benefit of regulation is trivial or nonexistent. Alabama
Power v. EPA, 636 F.2d. 323 (D.C.Cir. 1979).
EPA believes that the emissions impacts of this exemption are
trivial, because the emissions from small railroad-owned and operated
post-1972 locomotives and engines that are in fact remanufactured are
trivial. EPA's analysis in the RSD demonstrates that the total
NOX emissions benefit that could be achieved from requiring
such locomotives and engines to meet Tier 0 standards when
remanufactured constitutes less than one percent of the total
NOX emissions inventory from the locomotive fleet. Because
these locomotives and engines will not be considered new when
remanufactured, the preemption provision adopted today does not apply
to them at the time of remanufacture. Many small railroads do not
actually remanufacture their locomotives and engine, as defined by the
regulations adopted today, but instead rebuild them periodically in a
manner that does not result in a new locomotive or engine. While
remanufacturing practices are generally consistent among Class I
railroads, there is a wide variety of practices among non-Class I
railroads. For example, non-Class I railroads are more likely to
replace power assemblies only when they fail, so that many of their
locomotives are likely to not have all power assemblies replaced within
a five-year period. EPA's definition of ``remanufacturing'' is intended
to encompass the remanufacturing practices of Class I railroads, which,
for the reasons described above and in the NPRM, result in a locomotive
or engine that is new. However, because of the broad spectrum of
rebuilding and repair actions taken by small railroads, it is difficult
for EPA to draw a ``bright line'' between such actions that do result
in a new engines, and therefore constitute remanufacturing, and those
that do not.
EPA is including in its definition of ``remanufacture'' the
conversion of a locomotive or locomotive engine to operate on a fuel
other than the fuel it was originally designed and manufactured to
operate on. Such conversions typically involve, at a minimum, the
replacement or modification of the fuel delivery system, and often
involve the replacement or modification of other emissions-critical
components, as well as the recalibration of some engine operating
parameters. Thus, converted locomotives and locomotive engines will be
considered new and subject to today's regulations.
In order to clarify the definition of ``freshly manufactured
locomotive'' for purposes of applicability of the repowering provisions
discussed later in the section on other nonroad engines, EPA has added
to its proposed definition a provision stating that freshly
manufactured locomotives do not contain more than 25 percent (by value)
previously used parts. EPA is allowing freshly manufactured locomotives
to contain up to 25 percent used parts because of the current industry
practice of using various combinations of used and unused parts. This
25 percent value applies to the dollar value of the parts being used
rather than the number because it more properly weights the
significance of the various used and unused components. The Agency
chose 25 percent as the cutoff because it believes that setting a very
low cutoff point would have allowed manufacturers to circumvent the
more stringent standards for freshly manufactured locomotives by
including a few used parts during the final assembly.
[[Page 18981]]
B. Timing
Three sets of standards (Tier 0, Tier 1 and Tier 2) are being
promulgated in today's action, with the applicability of each set being
dependent on the date of original manufacture of a locomotive. The
actual levels of these standards are discussed in more detail later in
this document. EPA proposed that the Tier 0 and Tier 1 standards take
effect January 1, 2000. However, to provide adequate lead time, as
discussed in the SAC, these standards are being phased in beginning
January 1, 2000. Locomotive manufacturers will have two options to
choose from, as described in the following paragraphs.
Under the first option, the Tier 0 standards apply to all new
production in the 2001 model year, as well as for the remanufacture of
any 1994 through 2001 model year freight locomotives (when
remanufactured January 1, 2001 or later). The Tier 0 standards apply to
all other 1973 through 2001 model year locomotives when remanufactured
on or after January 1, 2002. The Tier 1 standards apply to all
locomotives manufactured from 2002 through 2004, both at the time of
initial manufacture and at each remanufacture. The Tier 2 standards
apply to all locomotives manufactured in 2005 and later, and also apply
both at the time of initial manufacture and at each remanufacture.
Finally, beginning January 1, 2000, any 1990 or later locomotive for
which a certified Tier 0 retrofit kit is available for a reasonable
cost must comply with the Tier 0 standards when remanufactured.
Reasonable cost encompasses the cost of hardware, fuel and maintenance
associated with the complying remanufacture. Reasonable cost also
encompasses the idea that the remanufactured locomotive will have
reliability throughout its useful life that is similar to the
locomotive would have had had it been remanufactured without the
certified remanufacture system (i.e., well-maintained, certified
locomotives would not have significantly more road failures than would
an uncertified locomotive). The criteria for reasonable cost are
described in section 92.012 of the regulatory text.
An alternative to the provisions just discussed is being provided
for manufacturers for the 1994 through 2001 model year locomotives. Any
manufacturer which makes certified Tier 0 retrofit kits available by
January 1, 2000 for its primary 1994 through 1997 model year
locomotives will only be required to meet the Tier 0 standards on new
production in 2000 and 2001 for locomotives similar to their primary
1994 through 1997 model. Other new production models would not need to
comply with standards until the Tier 1 standards take effect with the
2002 model year. However, new production locomotives in 2000 and 2001
not meeting any emission standards when originally manufactured will be
required to meet the Tier 0 standards at the time of remanufacture.
Under this option the primary 1994 and later model year locomotives
would be locomotives powered by 710 series engines for General Motors,
and the Dash 9/AC4400 series of locomotives for General Electric. The
purpose of this approach is to achieve significant emission reductions
in the near term by improving the practical feasibility of meeting the
standards by limiting the number of locomotive models that a
manufacturer must develop Tier 0 remanufacture systems for in the
initial years of the program, while focusing efforts on newer, higher
usage locomotives. The Tier 1 and Tier 2 standards would be implemented
under this option in the same manner as discussed above, as would the
Tier 0 trigger provision which begins in 2000.
EPA is including a provision in today's action to allow for the
production of some locomotives which do not comply with the applicable
standards under certain extraordinary circumstances beyond a
manufacturer's control. For example, if a manufacturer had planned to
produce a certain number of Tier 1 locomotives in 2004 and some
extraordinary circumstance prevented completion of some of those
locomotives until 2005, EPA could allow those locomotives to be
produced, as planned, in compliance with the Tier 1 standards. Examples
of extraordinary circumstances could include, but are not limited to,
labor strikes at component suppliers, and damage to production
facilities through natural disasters or accidents.
C. Emission Standards
Today's rule contains emission standards for new locomotives and
new locomotive engines which are measured over specific duty-cycles.
This section first contains a description of those duty-cycles,
followed by a description of the actual emission standards. Finally, an
alternate set of standards which are provided as an option to the
primary standards is presented. Integral to the stringency and
feasibility of the emission standards discussed in this section is the
averaging, banking and trading program discussed in Section F.
C.1. Duty-cycles
A duty-cycle is defined as a usage pattern for any class of
equipment, using the percent of time at defined loads, speeds or other
readily identifiable and measurable parameters. EPA's emission
standards for mobile sources are typically numerical standards for
emissions performance measured during a test procedure that embodies a
specific duty-cycle for that kind of equipment. The standards adopted
today require compliance over two defined duty-cycles. The first duty-
cycle is one weighted towards operation in the higher power notches,
and is typical of line-haul applications. The second duty-cycle is
typical of switch operations, with more emphasis on idle and low power
notch emissions. These duty-cycles are presented in Table IV-1. Since
these duty-cycles merely represent the percent of time locomotives
typically spend in each throttle notch and are not used during actual
emissions testing, they are termed throttle notch weighting factors. In
other words, they are not actual test cycles.
Table IV-1.--Throttle Notch Weighting Factors for Locomotives and
Locomotive Engines
[Percent weighting per notch]
------------------------------------------------------------------------
Line-haul Switch
Throttle notch (high (low
power) power)
------------------------------------------------------------------------
Idle............................................ 38.0 59.8
Dynamic brake................................... 12.5 0.0
1............................................... 6.5 12.4
2............................................... 6.5 12.3
3............................................... 5.2 5.8
4............................................... 4.4 3.6
5............................................... 3.8 3.6
6............................................... 3.9 1.5
7............................................... 3.0 0.2
8............................................... 16.2 0.8
------------------------------------------------------------------------
C.2. Emission Standards
As proposed, today's rule contains three sets of exhaust gaseous
and particulate emission standards for locomotives (Tier 0, Tier 1 and
Tier 2), with the applicability of each dependent on the date of
original manufacture of a locomotive, as discussed in the previous
section on timing. Standards are included for NOX, PM, HC,
CO and smoke. EPA is not finalizing the proposed aldehydes standards
for alcohol locomotives because aldehydes are specifically measured,
and thus regulated, in the context of the THCE standards. Each set of
standards includes requirements that locomotives comply with duty-cycle
standards when using notch weighting factors representative of
operation in both line-haul and switch duty-cycles. In general,
locomotives covered by these standards must meet both sets of duty-
cycle
[[Page 18982]]
standards. However, Tier 0 switch locomotives (i.e., locomotives
dedicated to switch operation) rated at or under 2300 horsepower (hp)
are only required to meet the Tier 0 switch duty-cycle standards since
such locomotives are extremely unlikely to encounter high power
operation associated with line-haul operations, and because of the
potential difficulty in bringing such locomotives into compliance with
the line-haul duty-cycle standards. EPA requested comment on this
provision based on its applicability to switch locomotives rated at or
under 2000 hp, but is revising the hp rating based on new information
that a significant number of existing switch locomotives are between
2000 and 2300 hp. No individual certification throttle notch standards
are being promulgated, although in-use notch standards based on notch
emission levels measured at certification are included, as discussed in
the later section on defeat devices. The standards are summarized in
Table IV-2. In addition to the exhaust emission standards, there are
smoke opacity standards for all locomotives and locomotive engines
covered by today's action. These standards are shown in Table IV-3.
Table IV-2.--Exhaust Emission Standards for Locomotives 1
------------------------------------------------------------------------
Gaseous and particulate emissions (g/bhp-
hr)
Tier and duty-cycle -------------------------------------------
HC2 CO NOX PM
------------------------------------------------------------------------
Tier 0 line-haul duty-cycle. 1.00 5.0 9.5 0.60
Tier 0 switch duty-cycle.... 2.10 8.0 14.0 0.72
Tier 1 line-haul duty-cycle. 0.55 2.2 7.4 0.45
Tier 1 switch duty-cycle.... 1.20 2.5 11.0 0.54
Tier 2 line-haul duty-cycle. 0.30 1.5 5.5 0.20
Tier 2 switch duty-cycle.... 0.60 2.4 8.1 0.24
------------------------------------------------------------------------
\1\ For the applicability of these standards by locomotive model year
see the discussion on timing.
\2\ HC standards are in the form of THC for diesel, bio-diesel, or any
combination of fuels with diesel as the primary fuel; NMHC for natural
gas, or any combination of fuels where natural gas is the primary
fuel; and THCE for alcohol, or any combination of fuels where alcohol
is the primary fuel.
Table IV-3.--Smoke Standards for Locomotives
[Percent Opacity--Normalized]
----------------------------------------------------------------------------------------------------------------
Steady-state 30-sec peak 3-sec peak
----------------------------------------------------------------------------------------------------------------
Tier 0.......................................................... 30 40 50
Tier 1.......................................................... 25 40 50
Tier 2.......................................................... 20 40 50
----------------------------------------------------------------------------------------------------------------
As described in this notice, and in the Regulatory Support Document
(RSD), EPA has determined that the Tier 2 emissions standards for new
locomotives and new engines used in locomotives achieve the greatest
degree of emissions reductions achievable through the use of technology
that EPA has determined will be available for application in 2005,
taking into consideration cost and other factors. Comments from engine
manufacturers expressed strong concern about the technology forcing
nature of the standards and about their ability to identify, develop,
and apply the technologies that will be needed to locomotive engines by
2005. EPA's detailed response to the engine manufacturers' comments can
be found in the SAC for this rule.
EPA is confident that manufacturers will be able to comply with the
Tier 2 standards in a cost-effective manner by 2005, but recognizes
that these are technology forcing standards which will require
significant effort to achieve. The technology that the manufacturers
are likely to use to achieve the 2005 standards is not being used on
locomotives being manufactured today, but is being applied to various
degrees on other compression-ignition engine transportation sources.
Between the date of the promulgation of this rule and 2005, EPA expects
that manufacturers will make a strong comprehensive effort to comply
with the 2005 and later model year emission standards and later
provisions. Nonetheless, as with all technology forcing standards,
there is some uncertainty in predicting the successful development and
application of the expected emission control technologies. EPA
recognizes that industry experience over the next seven years will
demonstrate whether EPA's technical projections are accurate and valid.
If, with the full investment of resources expected, the data developed
by the manufacturers indicates that the standards or some portions of
them will not be achievable, then as is the case for all rules, the
manufacturer(s) may petition the Administrator to reconsider the Tier 2
standards, or any other aspect of this rulemaking.2 In
responding to any such petition, EPA will conduct an in-depth review of
all test data and information presented by the petitioner or otherwise
obtained by EPA, and will decide on the basis of that information
whether the Agency believes it is appropriate to reconsider the Tier 2
standards.
---------------------------------------------------------------------------
\2\ In the event that EPA receives and grants a petition for
reconsideration of the Tier 2 NOX emission standard, the
Agency will begin to work on development of options for the federal
backstop of the South Coast Locomotive Fleet Average Agreement
discussed in footnote 1.
---------------------------------------------------------------------------
EPA expects that a manufacturer petitioning the Agency to
reconsider the Tier 2 standards adopted today would include information
such as, but not limited to, the following: (1) A detailed description
of all activities undertaken by the manufacturer in its efforts to meet
the Tier 2 standards, including a description of all resources
allocated to research, development, and testing, all technological
options investigated by the manufacturer, and the results of these
investigations, and all technological options the manufacturer chose
not to investigate, with the basis and reasons for such choice, (2) a
detailed description of all then-current problems identified by the
manufacturer that would interfere with complying with the Tier 2
standards, (3) a
[[Page 18983]]
description of all potential solutions to these problems investigated
by the manufacturer to that time, and the results of these
investigations, and (4) a description of the specific changes or time
extensions to the Tier 2 regulations that the manufacturer is
requesting, along with an explanation of why these changes or
extensions would be appropriate under section 213(a)(5). In evaluating
any such petition, EPA would evaluate the new information concerning
issues relevant under section 213(a)(5), such as technological
feasibility, energy, noise, safety and the cost of complying with the
Tier 2 standards in 2005, in determining whether it is appropriate to
reconsider the Tier 2 standards. EPA would also consider factors such
as reliability and durability as relevant under section 213(a)(5).
As with any such petition received by the Agency, EPA believes that
a manufacturer's petition for reconsideration of the Tier 2 standards
warrants timely Agency response. Since submitting a petition for
reconsideration does not suspend implementation of the Agency action at
issue, EPA believes it is important to provide manufacturers with a
final decision on their request as early as possible once a petition
for reconsideration is filed. EPA also believes that a petitioner would
present a comprehensive and in-depth analysis of the appropriate issues
and would respond in a timely manner to reasonable Agency requests for
clarification or for additional information. Therefore, EPA expects to
respond to such petitions within 300 days of receipt. Once EPA has
taken its final action on the petition, petitioners could challenge
that action in the Court of Appeals. The Court would review EPA's
action on the petition using an appropriate standard of review as
described in the then-applicable case law. If EPA fails to take final
action on the petition within 300 days of receipt, the petitioner might
seek to compel Agency action through an ``unreasonable delay'' claim;
the district court would review any such challenge under the then-
applicable case law. As part of the response to such a petition the
Agency may pursue a rulemaking action to revise one or more provisions
of this rule or to develop nonconformance penalties for the
pollutant(s) at issue.
As part of its efforts to implement this rule, EPA intends to meet
annually with each manufacturer of new locomotives and new locomotive
engines to review its progress and future plans to comply with the
emissions standards and requirements adopted today. EPA believes such
exchanges will be helpful in gauging overall manufacturer progress and
identifying potential difficulties and resolutions early in the
technology development and assessment process.
C.3. Alternate Standards
EPA is promulgating an alternate (i.e., optional) set of CO and PM
standards that are intended primarily to address locomotives which
operate on alternative fuels such as natural gas. Natural gas
locomotives are expected to have somewhat higher (and more difficult to
control) CO emissions than diesel-fueled locomotives, but lower PM
emissions. These differences are due to the different molecular
structure of alternative fuels compared to diesel fuel which result in
the need to operate under different conditions (e.g., different air/
fuel ratios, spark ignition vs. compression ignition). The alternate
standards allow higher CO emissions than the primary standards
applicable to all covered locomotives and locomotive engines, but also
require lower PM emissions. The lower PM standards are appropriate
because alternative fuel vehicles in general have demonstrated
inherently lower PM emissions than diesel vehicles, and, as is
discussed in the RSD, there is no reason to believe that this will not
be the case for locomotives as well. Although these alternate standards
are primarily intended to address issues associated with alternative
fuels, manufacturers and remanufacturers can certify to such standards
in lieu of otherwise applicable Tier 0, Tier 1, and Tier 2 standards.
Manufacturers and remanufacturers can choose to comply with the
appropriate set of alternate standards, shown in Table IV-4, instead of
the applicable Tier 0, Tier 1, or Tier 2 CO and PM standards listed in
Table IV-2, for any locomotives or locomotive engines regardless of
fuel used. However, they are not allowed to mix the alternate CO
standards with the primary PM standards for a single engine family.
Table IV-4.--Alternate CO and PM Standards
[g/bhp-hr]
------------------------------------------------------------------------
Line-haul Switch cycle
cycle -------------
--------------
CO PM CO PM
------------------------------------------------------------------------
Tier 0...................................... 10.0 0.30 12.0 0.36
Tier 1...................................... 10.0 0.22 12.0 0.27
Tier 2...................................... 10.0 0.10 12.0 0.12
------------------------------------------------------------------------
Since alternative fuel locomotives are not currently in general
use, EPA expects that a certain amount of development work will be
needed to bring such locomotives to market. In order to accommodate
this development work and not inhibit the introduction of alternative
fuel locomotives, EPA is expecting manufacturers to use the general
testing exemptions. These exemptions from the requirements and
prohibitions of today's regulations will be granted based on a
demonstrated need for purposes of technology development. Testing
exemptions may be granted for periods up to two years. EPA is also
establishing another provision that would allow the Administrator to
certify an alternative fuel locomotive, but to waive some requirements
for the full useful life period of the locomotive. This provision would
only apply for locomotives involved in technology development programs,
and would be used at the Administrator's discretion.
D. Other Nonroad Engines
EPA is finalizing the proposed provision allowing any manufacturer
which manufactures nonroad engines not normally used in locomotives and
which are certified according to the provisions of 40 CFR Part 89 to
sell up to 25 of those engines a year for use in replacing existing
locomotive tractive power engines (i.e., repowering). In the final
rule, EPA is not including the proposed restrictions on the upper limit
of the hp rating of engines sold under this provision. EPA has
determined that an upper limit on hp is not necessary since essentially
all repowering done with non-locomotive engines is done to switch
locomotives. Manufacturers may sell such engines for repowering, within
the overall limit of 25 per year, in engine families for which
projected sales for non-locomotive applications exceed projected sales
for locomotive applications. Engines sold under this provision will be
treated the same as other locomotive engines with respect to preemption
because they meet the definition of new locomotive engine. EPA retains
the authority as a condition of the exemption from the Part 92
certification provisions to require testing of such engines at
locomotive power points. While such data could be used to detect the
presence of defeat devices, in general it will be used for
informational purposes only since the engines will not be certified to
the part 92 emission standards. Engines used to repower existing
locomotives under this provision will generally be subject to the
requirements of 40 CFR Part 89 and will therefore not be subject to in-
use
[[Page 18984]]
testing, or certification requirements if rebuilt to their original
configuration, or a different configuration certified according to 40
CFR Part 89. However, the tampering prohibitions apply when these
engines are rebuilt. EPA does not believe that this repowering
provision will be used to circumvent the intent of today's regulations,
and has included appropriate safeguards to assure that this will not be
the case. For example, this exemption is subject to EPA approval, and
if the Agency has reason to believe that this provision is being used
in such a manner it will not grant the exemption.
Engines used to repower existing locomotives but not eligible to
use the 40 CFR Part 89 provisions just discussed because they exceed
the sales limit must be certified according to the provisions of 40 CFR
Part 92 contained in this action. Engines which are used to repower
existing locomotives and which are identical to the original engine
(i.e., replacement engines) are considered repowers. As with all
locomotives and locomotive engines certified according to the
provisions of 40 CFR Part 92, in-use testing will be done on
locomotives, rather than engines. In-use nonconformities will be
determined based on such locomotive testing. Manufacturers of
repowering engines certified according to the provisions of 40 CFR Part
92 will be allowed to petition EPA for a shorter useful life than the
minimum useful life value of 7.5 megawatt-hours per horsepower (MW-hr/
hp) discussed in the next section.
In addition to the repowering provisions just discussed, EPA is
allowing locomotive manufacturers to use a small number of engines
certified to the standards in 40 CFR Part 89 in freshly manufactured
switch locomotives. The purpose of this provision is to reduce the
certification burden associated with the occasional locomotive
manufacturer practice of building very small numbers of switch
locomotives using nonroad engines not normally used in locomotives. For
a given locomotive manufacturer, this provision will be limited to 15
locomotives over any three year period. This limit will apply to the
locomotive manufacturer, rather than the engine manufacturer, in cases
where the engine manufacturer and locomotive manufacturer are
different. Engines sold by an engine manufacturer for use in freshly
manufactured locomotives under this provision will not be included in
the sales limit for engines used for the repowering of existing
locomotives discussed previously.
EPA is providing an exemption from the Tier 0 requirements in 40
CFR Part 92 for existing nonroad engines (i.e., engines which would
likely have fallen under the exemption for repowers previously
discussed if they were freshly manufactured) provided they use Tier 0
compliance kits which are certified on engines using the 40 CFR Part 89
test protocols. Such retrofit kits will be required under this
exemption to demonstrate a NOX reduction of 40 percent from
baseline levels to be considered to have met the Tier 0 requirements.
This 40 percent reduction is intended as a conservative approach to
address uncertainties associated with a lack of data correlating the 40
CFR Part 89 and Part 92 test procedures, and will assure that, given
the differences in engine operating test points between the locomotive
test procedures and those contained in 40 CFR Part 89, these Tier 0
locomotives will have emission reductions at least as great as Tier 0
locomotives certified according to the locomotive compliance provisions
contained in this rule. Alternately, such existing ``nonroad'' engines
can be exempted from the Tier 0 requirements in 40 CFR Part 92 provided
they are remanufactured into a configuration previously certified
according to 40 CFR Part 89.
E. Useful Life
A locomotive or locomotive engine covered by the standards
contained in this action will be required to comply with the standards
throughout its useful life. The minimum, or default, useful life period
for all locomotives certified in compliance with the standards is, in
MW-hrs, 7.5 times the rated horsepower, or ten years, whichever occurs
first. For Tier 0 locomotives not equipped with MW-hr meters, the
minimum useful life value is 750,000 miles or 10 years, whichever
occurs first. The minimum useful life value is intended to represent
the expected median remanufacture interval for the Class I railroad
locomotive fleet during the early part of the next century. Information
supporting these useful life values can be found in the RSD. Since it
is expected that future locomotives may well be designed to be operated
significantly beyond the minimum useful life values, manufacturers and
remanufacturers will be required to specify a longer useful life where
appropriate. In general, EPA expects that a locomotive model's useful
life be at least as long as its median remanufacture interval, and will
require manufacturers and remanufacturers to specify a longer useful
life if EPA believes that the median remanufacture interval will be, in
practice, longer than the manufacturer's or remanufacturer's specified
useful life. However, EPA would take into account special cases where a
railroad is operating locomotives beyond their legitimate design life,
as evidenced by significant increases in fuel consumption and/or
decreases in reliability or power output before the locomotives are
remanufactured.
F. Averaging, Banking and Trading
Today's action includes an emissions averaging, banking and trading
(ABT) program. This voluntary program allows the certification of one
or more locomotive engine families within a given manufacturer's or
remanufacturer's product line at levels above the emission standards,
provided the increased emissions are offset by one or more families
certified below the emission standards, such that the average of all
emissions for a particular manufacturer's or remanufacturer's fleet of
new locomotives and new locomotive engines (weighted by horsepower,
production volume and estimated remaining service life) is at or below
the level of the emission standards. In addition to the averaging
program just described, the ABT program contains a banking and trading
provision which allows a manufacturer or remanufacturer to generate
emission credits and bank them for future use in its own averaging
program or sell them to another entity. The ABT program is limited to
NOX and PM emissions, and compliance is determined on a
total mass emissions basis to account for differences in the production
volume, horsepower and expected remaining service life of different
locomotives, and to ensure credits have equivalent values.
When a manufacturer or a remanufacturer uses ABT, it will be
required to certify each participating engine family to a family
emission limit (FEL) which is determined by the manufacturer or
remanufacturer during certification testing. Further, every
configuration within that engine family must also comply with the FEL
for that family. A separate FEL will be determined for each pollutant
which the manufacturer or remanufacturer is including in the ABT
program. FEL ceilings are included for Tier 1 and Tier 2 locomotives,
such that no Tier 1 or Tier 2 engine family can be certified at an
emission level higher than the level of the previously applicable
standard. In other words, locomotives subject to the Tier 1 standards
cannot be certified at FELs above the Tier 0 standards. Likewise,
locomotives subject to the Tier 2 standards cannot be certified at
[[Page 18985]]
FELs above the Tier 1 standards. There are no FEL ceilings for Tier 0
locomotives. This approach to FEL ceilings differs from the proposed
approach of placing FEL ceilings at levels 1.25 times the standard in
response to comments received that the 1.25 factor is overly
restrictive and inconsistent with EPA's establishment of FEL ceilings
in other mobile source programs. In general, credits will be calculated
based on the difference between the certification FEL and the actual
emission standard. However, for Tier 0 and Tier 1 PM emissions, credits
will be calculated relative to the baseline levels of 0.32 g/bhp-hr for
line-haul and 0.44 g/bhp-hr for switch, rather than the Tier 0 and Tier
1 PM standards in order to prevent the generation of windfall credits
from locomotives which already emit PM at levels below the standards.
As was previously discussed, today's regulations require that all
new locomotives and locomotive engines meet both the line-haul and
switch duty-cycle standards, so that more than one standard (and
accompanying duty-cycle) applies to a single pollutant. Thus, separate
switch and line-haul ABT programs are being promulgated. Each engine
family will be allowed to participate in both the switch and line-haul
ABT programs. However, line-haul credits will not be allowed to be used
to meet the switch standards, and vice versa.
EPA proposed that ABT credits have a three year life, and requested
comment on both the proposed three year life and infinite life. In
response to comments received stating that a three year credit life
provides incentive to use the credits to prevent losing them, which
does not help the environment, EPA is finalizing an infinite credit
life. As proposed, there will be no credit discounting. EPA proposed to
restrict the exchange of credits between different tiers. However, in
order to improve the feasibility of the standards and encourage
compliance with the standards at the lowest cost, credit exchanges will
be allowed between Tier 0, Tier 1 and Tier 2 locomotive engine
families, and credits will be allowed to be exchanged to a limited
extent immediately upon their generation. However, to ensure that
progress is made toward compliance with the technology-forcing Tier 2
standards, EPA is placing some limits on the use of credits to comply
with the Tier 2 emission standards. This will encourage manufacturers
to make serious efforts toward meeting the Tier 2 standards, while
allowing some use of banked credits so manufacturers do not have to
ensure that each engine family it manufactures complies with the Tier 2
standards by 2005, allowing them to focus research and development
funds. In order to assure that the ABT program is not used to delay the
implementation of the Tier 2 technology, only 75 percent of a
manufacturer's Tier 2 production will be allowed to be certified at a
NOX FEL greater than the applicable Tier 2 NOX
standards in 2005 and 2006. Only 50 percent of a manufacturer's Tier 2
production will be allowed to be certified at a NOX FEL
greater than the applicable Tier 2 NOX standards in 2007 and
later.
In cases where credits are generated and traded in the same model
year EPA will hold both the buyers and sellers of those credits
potentially liable for any credit shortfall at the end of the year,
except in cases where fraud is involved or a buyer of credits does not
buy enough credits to cover its needs. A buyer of credits which are
shown later to be invalid will only be required to make up the credit
shortfall. There will be no penalty associated with the unknowing
purchase of invalid credits. Finally, emission credits will be allowed
to be held by entities other than the certificate holder (e.g., the
locomotive owner or operator, or any other entity with the approval of
the Administrator).
When a locomotive is remanufactured in compliance with the
standards contained in today's action, it is required, as a default, to
be certified as complying with the standards and/or FELs it was
originally certified as meeting before being re-introduced into service
following subsequent remanufactures. Any credits generated or used will
be calculated based on the estimated remaining service life of the
locomotive. For freshly manufactured locomotives it will be assumed for
calculation of credits or debits that the remaining service life is 40
years, or seven useful life periods. For Tier 0 locomotives, the age of
the locomotive at the time of the initial complying remanufacture will
determine its remaining service life to be used in credit calculation.
The reader is referred to the regulatory text at the end of this notice
and the RSD for the exact schedule to be used in determining the
remaining service life.3 EPA is requiring that locomotives
be remanufactured at any subsequent remanufactures in compliance with
the standards and/or FELs that they are originally certified as
meeting. However, remanufacturers can generate or use credits at the
time of subsequent remanufactures by certifying the remanufactured
locomotives to different FELs than they were originally certified as
meeting. In such cases credits generated or used will be calculated
relative to the previous certification levels (either standards or
FELs) rather than just the standards, and will be based on the
remaining service life of the locomotive.
---------------------------------------------------------------------------
\3\ See 40 CFR Part 92, subpart D, of the regulations in this
document.
---------------------------------------------------------------------------
As was previously discussed, ABT credits will be weighted according
to several factors including the number of expected useful life periods
remaining at the time a credit is generated or used. Useful life will
generally be measured in megawatt-hours (MW-hrs), and EPA is finalizing
the proposed requirement that all locomotives certified in compliance
with the Tier 1 and Tier 2 standards be equipped with MW-hr meters.
However, for those Tier 0 locomotives which do not have MW-hr meters,
useful life will be measured in miles or years. For purposes of the ABT
program, EPA proposed to create separate ABT classes for Tier 0
locomotives with and without MW-hr meters, and further proposed to
restrict the exchange of credits between them. However, in order to
allow for a single averaging class which will encompass all Tier 0
locomotives, EPA is finalizing a provision whereby Tier 0 locomotives
without MW-hr meters will be assumed to have the minimum useful life in
MW-hrs provided they were certified according to the minimum useful
life in miles or years. Thus, EPA is not finalizing separate ABT
classes for Tier 0 locomotives with and without MW-hr meters, allowing
manufacturers and remanufacturers greater flexibility in complying with
the emission standards by not prohibiting use of credits generated from
an engine family towards another engine family simply because one has
MW-hr meters and the other does not. For Tier 0 locomotives which do
not have MW-hr meters and are which certified with useful life values
other than the minimum value, credits will be prorated according to the
ratio of the minimum useful life value and the actual certification
useful life. This ratio will then be applied to the MW-hr minimum
useful life value to determine the prorated useful life in MW-hr so
that the minimum useful life in MW-hr will be adjusted by the same
proportion for credit calculation as when measured in miles for
certification. This will allow the calculation of credits to be uniform
for all locomotives and will allow the exchange of credits between
locomotives with and without MW-hr meters.
EPA is allowing the early generation of credits prior to the
effective dates of the standards beginning in 1999 as
[[Page 18986]]
proposed. For early generation of credits for both freshly manufactured
locomotives, and existing locomotives when remanufactured, the
NOX line-haul duty-cycle standard from which credits would
be calculated is 10.5 g/bhp-hr. Similarly, the NOX switch
duty-cycle standard from which credits would be calculated is 14.0 g/
bhp-hr. This value is a default, and in the case of existing
locomotives a remanufacturer can choose to develop a model-specific
baseline value based on actual test data for a particular Tier 0
locomotive model. Credits for early compliance will only be calculated
for a single useful life period, as opposed to the remaining service
life used for most credit and debit calculation, and such locomotives
would have to be brought into compliance with the actual Tier 0
emission standards at their next remanufacture. EPA did not propose any
restrictions on who could hold credits generated prior to the effective
date of the standards. However, EPA will require that any credits from
a remanufactured locomotive which are generated and banked prior to
2002 can only be used for Tier 1 and later freshly manufactured
locomotives after 2001, in order to address competitiveness concerns
raised by locomotive aftermarket suppliers, as detailed in the SAC
accompanying this rule. Alternately, EPA is allowing such credits to be
used in an unrestricted fashion if they are transferred to the
locomotive owner.
EPA did not propose to give any form of credit for the purchase or
use of electric locomotives. Amtrak, whose locomotive fleet contains a
sizeable number of electric locomotives, commented that EPA should give
some form of credit for electric locomotives. While EPA is not
including any such provision in this rule, it intends to consider if it
is appropriate to give credit for actual emission reductions inherent
in the use of electric locomotives as compared to diesel locomotives.
Thus, the Agency intends to work with the Department of Transportation,
Amtrak, and the concerned commuter authorities to investigate and
develop such credits.
G. Compliance Assurance
This section covers the various aspects of the compliance programs
for locomotives. A discussion of the certification program is presented
first, followed by discussions of the production line and in-use
compliance programs, and specific phase-in provisions for these
regulations.
G.1. Engine Family Certification
In general, an engine family is a group of locomotives with similar
emission characteristics throughout useful life. The specific criteria
used to define an engine family are discussed later in this section.
For freshly manufactured locomotives an engine family would describe
all locomotive models covered by that engine family. For remanufactured
locomotives, the engine family must describe models of engines covered,
specific processes by which those engines would be remanufactured, and
specific locomotive models which those remanufactured engines would go
in. Similarly, for repowers and replacement engines, an engine family
would describe specific engine models and the specific locomotive
models into which those engines would go.
EPA stated in its proposal that, in most cases, locomotives (rather
than engines) would be required to be certified with respect to
compliance with the applicable emissions standards. The Agency also
proposed that in some limited cases locomotive engines, rather than
locomotives, be certified. In both cases EPA pointed out that it is the
emissions performance of the locomotive in use that is of primary
concern, and therefore that liability for in-use emissions performance
was to be based on locomotive testing, rather than engine testing. The
approach that EPA is finalizing retains the idea that it is the
emissions performance of the locomotive, not just the locomotive
engine, that is the ultimate concern in controlling locomotive
emissions. However, in order to simplify the certification process, EPA
is finalizing an approach by which the engine family (as described in
the previous and next paragraphs) is certified. Under this approach, it
is a condition of the certificate that the certificate holder accept
liability for in-use emissions performance as measured by actual
locomotive testing. The application for certification for that engine
family will include specifications for which locomotive models are
included by the engine family. Alternately, a manufacturer or
remanufacturer can specify the engine family's requirements in terms of
operating conditions, such as cooling rates, that any locomotive in the
engine family must provide. In either case, it must be clear for anyone
using a certified remanufacturing system that its engine family would
include the final remanufactured locomotive. These specifications, in
terms of locomotive model or operating condition limitations, will
become conditions of the engine family certificate, and the certificate
will cover engines in the engine family only when used in the specified
locomotives (or under the same operating conditions as specified in the
application). Any use of an engine included in that engine family in
locomotives or under operating conditions outside of those specified in
the certificate would not be covered by that engine families
certificate, and would be prohibited. Thus, it is ultimately
locomotives which will have to meet the applicable standards in-use.
The engines in an engine family will be certified for use in any
locomotive, and therefore any locomotive in which the engines are used
must meet applicable emission standards, unless a manufacturer or
remanufacturer includes specifications or limitations in its
application for certification with respect to locomotive models or
operating conditions, as described above. Without regard to how these
specifications are described, certification testing can be done on
either a locomotive or locomotive engine, as proposed. Also, EPA is
finalizing its proposed provision to allow a development engine, rather
than a preproduction prototype engine, to be tested for certification
purposes.
EPA is adopting regulatory definitions of engine family very
similar to those proposed for Tier 0, Tier 1, and Tier 2 locomotives.
The final definitions are, however, somewhat more flexible than the
proposed definitions. For all tiers, the conceptual definition of
engine family is ``a group of locomotives that are expected to have
similar emission characteristics for their useful lives.'' The
regulations also contain specifications for certain locomotive engine
parameters that determine whether various locomotives should be grouped
into the same engine family. For example, locomotive engines must have
the same bore and stroke, and use the same fuel to be grouped into the
same engine family. While the proposed definitions would have required
locomotives be identical with respect to nearly all of these engine
family parameters, the final definitions allow some reasonable
deviations for many of the parameters. Given the complexity of bringing
a variety of existing locomotive models into compliance, the
regulations provide additional flexibility for Tier 0 locomotives by
specifying fewer engine family parameters than are specified for Tiers
1 and 2. It is important to note that the engine family parameters
specified in the regulations are not intended to prevent manufacturers
or remanufacturers from grouping together any locomotives that have
similar
[[Page 18987]]
emission characteristics. Rather, the specification of these parameters
is intended to be a starting point for determining how to group
locomotives for compliance purposes. Where manufacturers or
remanufacturers have information showing that the emission
characteristics of locomotives which would be grouped into separate
engine families according to the parameters in the regulations are
actually similar, then EPA will allow them to be grouped together. EPA
believes, however, that for most cases, locomotives differing
significantly with respect to the specified engine family parameters
will have dissimilar emission characteristics.
As proposed, EPA is not requiring a pre-production durability
demonstration for certification. Such a demonstration would be
impractical for locomotives due to the time it would require to
accumulate mileage (several years) and the cost of fuel (around $1
million). As proposed, a manufacturer or remanufacturer must estimate
in-use emissions deterioration as part of the certification process
(through engineering evaluation or other means). In the absence of a
durability demonstration EPA will rely on the production line and in-
use testing programs to ensure compliance over the full useful life, as
described in the proposal.
EPA is finalizing a provision to reduce the reporting burden
associated with the application for certification. Certain documents
need not be submitted automatically, but must be retained and submitted
if requested by EPA. When the Agency exercises its authority to modify
the information submission requirements, it intends to provide
manufacturers and remanufacturers with a guidance document, similar to
the manufacturer guidance issued under the on-highway program, that
explains the modification(s). These modifications to the information
submission requirements will in no way change the actual requirements
of the regulations in terms of the emissions standards, test
procedures, etc. Manufacturers and remanufacturers must retain records
that comprise the certification application for eight years form the
issuance of a Certificate of Conformity whether or not EPA requires
that all such records be submitted to the Agency at the time of
certification. The Administrator would retain the right to review
records at any time and at any place she designates. In addition, in
order to facilitate the rapid introduction of complying locomotives,
and to reduce the cost and burden of certification, EPA will use a
streamlined certification process for the model years of the phase-in
(i.e., 2000 and 2001).
G.2. Production Line Testing
The production line testing (PLT) program is an emission compliance
program in which manufacturers are required to test locomotives as they
leave the point where the manufacture is completed. The objective of
the PLT program is to allow manufacturers, remanufacturers and EPA to
determine, with reasonable certainty, whether certification designs
have been translated into production locomotives that meet applicable
standards and/or FELs from the beginning, and before excess emissions
are generated in-use.
The Agency is finalizing the proposed PLT program for newly
manufactured units based on actual testing according to the federal
test procedure (FTP) for locomotives contained in this rule, and a PLT
program for remanufactured units requiring remanufacturers to audit a
certain number of remanufactures (e.g., assuring that the correct parts
are used and they are installed properly), with EPA having the ability
to require testing of remanufactured locomotives if in-use data
indicates a possible problem with production. Changes to the proposed
regulations are noted below. Both the manufacturer and remanufacturer
PLT programs begin January 1, 2002. EPA proposed the manufacturer PLT
program as a locomotive-based testing program, but is finalizing
provisions that allow the testing of either locomotives or locomotive
engines. This will reduce the overall cost of the PLT program because
it allows PLT testing at the locomotive manufacturers' engine
manufacturing facilities, where they already have some emissions
testing capabilities, instead of requiring them to build completely new
emission testing facilities at their locomotive manufacturing
facilities, which are geographically separated from their engine
facilities. EPA retains the authority to require locomotive (rather
than locomotive engine) testing for PLT purposes should it have reason
to believe that there are problems with any aspects of a manufacturer's
engine-based PLT program. Any such request by EPA to perform PLT
testing on locomotives rather than engines will allow a reasonable
amount of time for a manufacturer to prepare to conduct such testing.
This program is different than the approach EPA uses for some other
mobile sources, such as on-highway motor vehicles. The more traditional
approach relied on for assuring that the engines are produced as
designed for other mobile sources is called Selective Enforcement
Auditing (SEA). In the SEA program, EPA audits the emissions of new
production engines by requiring manufacturers to test engines pulled
off the production line upon short notice. This spot checking approach
relies largely on the deterrent effect: the premise is that
manufacturers will design their engines and production processes and
take other steps necessary to make sure their engines are produced as
designed and thereby avoid the penalties associated with failing SEA
tests, should EPA unexpectedly do an audit.
EPA has taken a different approach in the locomotive PLT program
than the SEA program just discussed, largely because of the very low
production volumes in the locomotive industry. The locomotive PLT
program implements a more flexibly organized testing regime that acts
as a quality control method that manufacturers will proactively utilize
and monitor to assure compliance. Manufacturers will continue to take
steps to produce engines within statistical tolerances and assure
compliance aided by the quality control data generated by PLT which
will identify poor quality in real time. As noted in the proposal, this
program is especially important given that EPA is allowing
certification of freshly manufactured locomotives and locomotive
engines based on data from a development engine, rather than a pre-
production prototype locomotive.
As proposed, manufacturers will select locomotives for the PLT
program from each engine family at a one percent sampling rate for
emissions testing in accordance with the FTP for locomotives. The
required sample size for an engine family is the lesser of five tests
per year or one percent of annual production. For engine families with
production of less than 100, a minimum of one test per year per engine
family is required. Manufacturers may elect to test additional
locomotives. EPA has the right to reject any locomotives selected by
the manufacturers or remanufacturers if it determines that such
locomotives are not representative of actual production. Tests must be
distributed evenly throughout the model year, to the extent possible,
and manufacturers must submit quarterly reports to EPA on all testing
done, as described in the proposal. EPA is finalizing the proposed
provision allowing a manufacturer to submit for EPA approval an
alternative plan for a PLT program. Any such plan must address the need
for the alternative, and should include justifications for the number
and representativeness of locomotives tested, as well as having
[[Page 18988]]
specific provisions regarding what constitutes a failure for an engine
family.
As proposed, if a locomotive or locomotive engine fails a
production line test, the manufacturer must test two additional
locomotives or locomotive engines out of the next fifteen produced in
that engine family in accordance with the FTP for locomotives. When the
average of the three test results, for any pollutant, are greater than
the applicable standard or FEL, the manufacturers fails the PLT for
that engine family. In all cases, individual locomotives and locomotive
engines which fail a test in the PLT program are required to be brought
into compliance.
Should production line testing show that an engine family is not
complying with the applicable standards or FELs, EPA may suspend or
revoke the engine family certificate of conformity in whole or in part
thirty days after an EPA nonconformance determination. EPA proposed a
fifteen day period but is finalizing thirty days as more appropriate
since the locomotive manufacturing industry is very low volume and
production of actual units proceeds at a much slower pace than for most
other mobile sources. Before the suspension or revocation goes into
effect, EPA will work with the manufacturer to facilitate approval of
the required production line remedy in order to eliminate the need to
halt production if possible. To have the certificate reinstated
subsequent to a suspension, or reissued subsequent to a revocation, the
manufacturer must demonstrate (through its PLT program) that
improvements, modifications, or replacement had brought the locomotive
and/or engine family into compliance. The Agency retains the legal
authority under section 207 of the Act to inspect and test locomotives
and locomotive engines, and may do so should such problems arise in the
PLT program.
Under the PLT program for remanufactured locomotives, the
certificate holder, as a condition of the certificate, is required to
audit its remanufacture of locomotives for the use of the proper parts,
their proper installation, and all proper calibrations. The certificate
holder is required to audit five percent of its systems for each
installer of the systems, with a maximum number for each installer of
ten systems per engine family. EPA proposed no maximum number of
required audits, but is including an upper limit in the rule because it
believes that if ten systems in a given engine family for a given
installer are audited and shown to have no problems then auditing more
would only add cost to the program with little or no additional
benefit.
A case of uninstalled, misinstalled, misadjusted or incorrect parts
constitutes a failure, and if a failure occurs, the remanufacturer
would be required to audit two additional locomotives in the same
engine family from the next ten produced for each failure. Whenever all
three locomotives failed the audit the engine family will be considered
to have failed the audit. Actions in the event of an audit failure
would be determined on a case-by-case basis, depending on whether the
failure is considered tampering, causing of tampering, inappropriate
parts in system, etc. EPA may order, on a case-by-case basis, that
remanufacturers conduct emissions testing of remanufactured locomotives
in the same manner as required under the PLT program adopted today for
freshly manufactured locomotives, and expects to do so if in-use
testing or remanufacture system audits showed evidence of
noncompliance.
G.3. In-Use Testing
Locomotives and locomotive engines are required to comply with
EPA's emission standards for the full extent of their useful lives. To
ensure such compliance, EPA is finalizing the proposed in-use testing
program for locomotive and locomotive engine manufacturers and
remanufacturers. To ensure continued compliance beyond the useful life,
and during operation within the period when certain state standards
relating to the control of emissions from new locomotives and new
locomotive engines are preempted (as discussed later in this notice),
EPA is finalizing an in-use testing program for locomotive operators,
for the reasons described in the proposal. Each of these programs is
discussed in more detail in the following paragraphs.
Under the manufacturer-based in-use testing program, which begins
with the 2002 model year, manufacturers and remanufacturers will be
required to test in-use locomotives that are properly maintained and
used from one engine family per year, using the full FTP. The Agency is
requiring manufacturers and remanufacturers to perform in-use testing
on locomotives that have reached between 50 and 75 percent of their
useful life. The manufacturer must test a minimum of two such
locomotives per year, within the subject engine family. If all
locomotives tested meet all of EPA's standards, the manufacturer or
remanufacturer is not required to perform any more in-use tests that
year. For each failing locomotive, two more locomotives would be tested
up to a maximum of ten. Manufacturers and remanufacturers will have
twelve months after the receipt of in-use testing notification to
complete the testing of an engine family.
EPA believes that it is appropriate to provide some flexibility
during the initial phase of this program. Therefore, EPA expects, as a
matter of policy, to provide an option for the first three years of the
in-use testing program (model years 2002 through 2004) whereby a
manufacturer or remanufacturer can choose to participate in a more
flexible emission factor program in lieu of the required in-use test
program. Manufacturers and remanufacturers choosing to participate in
this program would be required to test twice as many engine families as
required by the normal in-use test program, but would have more
flexibility in conducting the testing. The Agency expects that this
optional program would be used as an informational program, rather than
a compliance program. This option will allow a manufacturer or
remanufacturer to gain some experience with the new provisions without
an unreasonable fear of enforcement action, while providing EPA with
twice as much in-use data as it would otherwise receive. This data will
be useful to EPA both in the assessment of deterioration factors used
in certification testing and in targeting engine families and
technologies for future in-use testing.
Under section 207 of the Act, as applied to locomotives by section
213(d), the Administrator has authority to require manufacturers or
remanufacturers to submit a plan to remedy nonconforming locomotives or
locomotive engines if EPA determines that a substantial number of a
class or category of properly maintained and used locomotives or
locomotive engines do not conform with the requirements prescribed
under section 213 of the Act. A finding of nonconformance has
potentially serious economic and practical consequences, and
historically is not an action the Agency takes in insignificant or
trivial cases, especially where the manufacturer has made a good faith
effort to comply and the problem is unexpected. Manufacturer
requirements applicable in the event of a determination under section
207(c) of the Act include submittal of the manufacturer's remedial plan
for EPA approval, procedures for notification of locomotive owners,
submittal of quarterly reports on the progress of the recall campaign,
and procedures to be followed in the event that the manufacturer or
remanufacturer requests a public hearing to contest the
[[Page 18989]]
Administrator's finding of nonconformity. If a determination of
nonconformity with the requirements of section 207(c) of the Act is
made, the manufacturer or remanufacturer will not have the option of an
alternate remedial action, and an actual recall will be required.
EPA recognizes the unique nature of locomotives and railroad
operations relative to highway vehicles such as passenger cars used in
personal transportation. Furthermore, the Agency recognizes that in
some cases, the actual recall and repair of locomotives could impose
severe financial hardship on a manufacturer or remanufacturer if the
necessary repair was extremely complex and expensive, and could also
adversely impact railroads and other businesses when locomotives are
required to be taken out of service for those repairs. In these
particular cases and, assuming that the Administrator had not yet made
a determination of nonconformity, alternatives to traditional recall
will be strongly considered. These alternatives are required to have
the same or greater environmental benefit as conventional recall and to
provide at least equivalent incentives to manufacturers and
remanufacturers to produce locomotives which durably and reliably
control emissions.
The second component of the in-use testing program is the railroad
in-use testing program adopted pursuant to EPA's authority under
section 114 of the Act to require ``any person who owns or operates any
emission source to establish and maintain records, sample emissions
according to EPA specifications, and provide such other information as
the Administrator may reasonably require.'' The railroad in-use testing
program is being finalized for the reasons stated in the proposal. Each
Class I freight railroad is required to annually test a portion of its
total locomotive fleet beginning January 1, 2005. This start date is
appropriate because EPA does not expect that a significant number of
certified locomotives will have reached the end of their useful lives
prior to 2005. EPA proposed a railroad in-use testing program which
would have required that ten percent of a railroad's locomotives be
tested annually using a simple short test procedure, but also
considered and solicited comment on a program that would require
testing a much smaller number of locomotives in accordance with the FTP
for locomotives. Based on comments received and the lack of a suitable
short test, EPA is finalizing the FTP-based testing program. Testing
must therefore be done according to the FTP for locomotives contained
in this rule. The number of tests that each Class I freight railroad
must perform annually is at least 0.15 percent of that railroad's total
average locomotive fleet size the previous year. The tests shall be
done on locomotives which have reached the end of their useful lives
for reasons stated in the proposal. If the number of locomotives in a
given railroad's fleet which have reached the end of their useful lives
is not large enough to fulfill the testing requirement, railroads are
to test locomotives late in their useful lives, as specified in the
regulatory text. The test locomotives will be randomly selected by the
railroad, unless otherwise specified by the Administrator, and must
proportionally represent the railroad's fleet mix of locomotive models.
The railroads are required to submit annual reports summarizing all
emissions testing performed. If a particular engine family has
consistent emissions problems in all the railroads' fleets, then there
may be a problem with the design or manufacture of the locomotives. The
locomotives tested under this program will generally be past their
useful lives. No recall action can be taken against the manufacturer or
remanufacturer in the event of a failure of a locomotive tested beyond
the end of its useful life. However, EPA could use this information to
target engine families to be tested in the manufacturer/remanufacturer
in-use testing program, to target in-use testing by EPA, or to evaluate
the deterioration factors submitted with certification applications. If
the failures are limited to one railroad's fleet, then it may indicate
that tampering or malmaintenance has occurred, which may constitute a
violation of tampering prohibition discussed later in this notice.
Given the current size of the Class I locomotive fleet, EPA
estimates that there will be approximately 30 in-use locomotive tests
performed annually under the railroad in-use program initially. Today's
program also gives EPA authority to waive, in whole or in part, the
amount of testing required in future years, as described in section
92.1003 of the attached regulatory text. Also included in the railroad
in-use testing program is a provision which allows a railroad to
petition EPA for approval of alternative in-use testing programs that
provide information equivalent to EPA's in-use testing requirements
based on criteria such as test procedure accuracy compared to the FTP
for locomotives, and how any differences in accuracy are addressed in
the locomotive sample size. EPA is finalizing this option for
alternative programs in order to allow for the potential of less costly
but equally effective programs based on test procedures that may be
developed in the future.
G.4. Phase-In Provisions for Small Businesses
A large portion of the locomotive remanufacturing and aftermarket
parts industries is made up of small businesses. As such, these
industries do not tend to have the financial resources or technical
expertise to quickly respond to the Tier 0 requirements contained in
today's rule. As fully discussed in Chapter 5 of the SAC document
(docket item A-94-31-V-C-1), accompanying this rule, the Small Business
Regulatory Enforcement Fairness Act of 1996 and the Regulatory
Flexibility Act require EPA to take steps to identify and mitigate the
regulatory burden of regulations on small business entities. EPA has
taken a number of steps to mitigate any potential impact on the small
remanufacturers and component suppliers that are affected by this rule.
The delay the application of Tier 0 standards to locomotives
originally manufactured before 1990 until January 1, 2002, is not
specifically targeted at small businesses since it applies to all pre-
1990 locomotives regardless of who remanufactures them. EPA chose 1990
as a cut point for the phase-in of the Tier 0 standards because pre-
1990 locomotives represent the vast majority of locomotives for which
the above small business entities supply parts and remanufacturing
services. Also, a cut point of 1990 will allow manufacturers and
remanufacturers to target their resources more efficiently than if they
were required to comply with the Tier 0 standards for all locomotive
and locomotive engine models at the same time. This measure should
therefore address any feasibility concerns for these small business
entities.
The second measure establishes a streamlined certification program
for small businesses, applicable through the 2006 model year that will
reduce the financial burden of compliance. Under these provisions,
certification testing requirements will be phased-in, beginning in
2002. Remanufacturers have the option of testing locomotives (or
locomotive engines) using a modified version of the FTP, or of testing
using a less rigorous alternate procedure, subject to sales
restrictions set by EPA. The modified FTP requires measurement of
NOX, CO2, smoke, power output, and fuel
consumption over the full throttle notch schedule.
[[Page 18990]]
Remanufacturers choosing this option could be allowed other deviations
from the specified FTP with EPA approval.
Remanufacturers choosing to test using an alternate procedure may
specify their own test procedures consistent with good engineering
practice and subject to EPA approval, and must provide a supplemental
engineering analysis describing the emission controls. However, a
remanufacturer may only certify a limited number of rebuild systems
each year using such a short test. For example, in 2003, if an
individual small business certifies three systems using an alternate
test, then the combined number of locomotives remanufactured in that
year under those certificates could not exceed 300, with no limits as
to how the three certified systems are allocated among the 300
remanufactures. Any other small businesses certifying via an alternate
test procedure in 2003 would also be allowed to remanufacture up to 300
locomotives under their own certificates. This number would decrease in
subsequent years until 2007, when the small business entities must
certify using the full FTP, and must meet all other certification
requirements applicable to larger entities.
The phase-in provisions discussed in this section are contained in
section 92.012 of the regulatory text for this action.
H. Test Procedures
Due to the fundamental similarity between the emissions components
of locomotive engines and on-highway heavy-duty diesel engines, the
test procedures contained in today's regulation are based on the test
procedures previously established for on-highway heavy-duty diesel
engines in 40 CFR part 86, Subparts D and N. Specifically, the raw
sampling procedures and many of the instrument calibration procedures
are based on subpart D, and the dilute particulate sampling procedures
and general test procedures are based on subpart N. The most
significant aspects of the test procedures are described below. Also,
as with EPA's test procedures for other mobile sources, the regulations
will allow, with advance EPA approval, use of alternate test procedures
demonstrated to yield equivalent or superior results.
EPA is using a nominally steady-state test procedure to measure
gaseous and particulate emissions from locomotives; that is, a
procedure wherein measurements of gaseous and particulate emissions are
performed with the engine at a series of steady-state speed and load
conditions. Measurement of smoke would be performed during both steady-
state operations and during periods of engine accelerations between
notches (i.e., set speed and load operating points). For locomotive
testing, the engine would remain in the locomotive chassis, and the
power output would be dissipated as heat from resistive load banks
(internal or external). Measurement of exhaust emissions, fuel
consumption, inlet and cooling air temperature, power output, etc.
would begin after the engine has been warmed up, and would continue
through each higher notch to maximum power. The minimum duration of the
initial test point (idle or low idle), and each test point when power
is being increased is 6 minutes, with the exception of the maximum
power point, where the minimum duration of operation is 15 minutes.
Concentrations of gaseous exhaust pollutants are to be measured by
drawing samples of the raw exhaust to chemical analyzers; a
chemiluminescence analyzer for NOX, a heated flame
ionization detector (HFID) for HC, and nondispersive infrared (NDIR)
detector for CO and CO2. Smoke is to be measured with a
smoke opacity meter, and particulate measured by drawing a diluted
sample of the exhaust through a filter and weighing the mass of
particulate collected. The Agency is including NMHC, alcohol and
aldehyde measurement procedures similar to those that are currently
applicable to on-highway natural gas- and methanol-fueled engines (40
CFR part 86) be used for natural gas- and alcohol-fueled locomotives.
EPA is establishing test conditions that are representative of in-
use conditions. Specifically, the Agency is requiring that locomotives
comply with emission standards when tested at temperatures from 45
deg.F to 105 deg.F and at both sea level and altitude conditions up to
about 4,000 feet above sea level. While EPA is only requiring that
locomotives comply with emission standards when tested at altitudes up
to 4000 feet for purposes of certification and in-use liability, it is
requiring that manufacturers and remanufacturers submit evidence with
their certification applications, in the form of an engineering
analysis, that shows that their locomotives are designed to comply with
emission standards at altitudes up to 7000 feet. The Agency is
finalizing correction factors that will be used to account for the
effects of ambient temperature and humidity on NOX emission
rates.
The Agency is establishing test fuel specifications for compliance
testing (certification, PLT and manufacturer/remanufacturer in-use
testing) which are generally consistent with test fuel specifications
for on-highway heavy-duty engine certification testing, including the
provisions that fuels other than those specified can be used under
certain circumstances. The only exception is for the fuel sulfur level.
In the case of the sulfur specification, EPA is specifying a lower
limit of 0.2 weight percent, and an upper limit of 0.4. These limits
are intended to approximate worst case in-use conditions; in those
cases where in-use locomotives are operated on low sulfur on-highway
fuel, particulate emissions entering the atmosphere can be expected to
be lower than levels measured when using the certification test fuel.
EPA is taking this approach because there is no reason to believe that
in-use locomotives will use only low sulfur on-highway fuel, especially
given the higher price of low sulfur diesel fuels, and the difficulty
of obtaining low sulfur diesel fuel in some areas of the country. Since
the railroad in-use testing program is intended to provide EPA
information regarding compliance with emission standards near the end,
and beyond, a locomotive's useful life, and the results of such in-use
testing would not by themselves be the basis for an EPA recall action,
EPA does not believe it is necessary to require simulation of worst-
case conditions in railroad in-use testing. For this reason, and given
the cost and inconvenience of using a specific fuel for in-use testing
by railroads, EPA is not establishing any fuel specifications for in-
use railroad testing, and will allow the railroad testing to be done
whatever fuel is in the locomotive's tank at the time of testing.
The Agency recognizes that the potential exists for future
locomotives to include additional power notches, or even continuously
variable throttles, and is allowing alternate testing requirements for
such locomotives. Using the same procedures for such locomotives as are
specified for conventional locomotives would result in an emissions
measurement that does not accurately reflect their in-use emissions
performance because it would not be a reasonable representation of
their in-use operation. Thus, locomotives having additional notches are
required to be tested at each notch, and the mass emission rates for
the additional notches will be averaged with the nearest ``standard''
notch. Locomotives having continuously variable throttles will be
required to be tested at idle, dynamic brake, and 15
[[Page 18991]]
power levels assigned by the Administrator (including full power), with
average emission rates for two power levels (excluding full power)
assigned to the nearest ``standard'' notch. The 15 power levels
represent one level for full power and two, to be averaged, for each of
the seven intermediate power levels used on current locomotives. The
Administrator retains the authority to prescribe other procedures for
alternate throttle/power configurations.
The specified test procedures are intended primarily for the
testing of locomotives, rather than locomotive engines. However, EPA
does recognize that engine testing will be reasonable in some cases,
such as data collection from a development engine. For these cases, the
engine would be mounted on a stand, with its crankshaft attached to an
dynamometer or to a locomotive alternator/generator. Because the Agency
believes that it is critical that engine testing be as representative
of actual locomotive operation as can practically be achieved, it is
requiring that important operating conditions such as engine speed,
engine load, and the temperature of the charge air entering the
cylinder be the same as in a locomotive in use (within a reasonable
tolerance limit).
The test procedures are designed to minimize the variability in
measured values to the extent possible. However, given the practical
constraints that apply, some variability will remain. In cases where a
manufacturer or remanufacturer believes that the FTP provides
inadequate repeatability, EPA is allowing them to use replicate tests,
subject to some minor restrictions. EPA is also likely to allow special
flexibility with respect to replicate measurements for determining
compliance with the individual notch standards. This is because
problems of variability will be greater for single notch measurements
than cycle-weighted averages of the individual notch measurements.
I. Railroad Requirements
As was previously discussed in the section on compliance, today's
action contains a two-part in-use testing program, with one part
conducted by the manufacturers and remanufacturers, and the other part
conducted by the railroads. EPA expects the railroads to provide
reasonable assistance to the manufacturers and remanufacturers in
providing locomotives to test in support of the manufacturer/
remanufacturer in-use testing program. As proposed, if a manufacturer
or remanufacturer is unable to obtain a sufficient number of
locomotives for testing, EPA may require that the railroads do the
testing themselves, under the authority of section 114 of the Act. The
Class I freight railroads are also required to conduct the railroad in-
use testing program discussed previously.
For reasons discussed in the proposal, under today's action, any
locomotive owner that fails to properly maintain a locomotive subject
to this regulation will be subject to civil penalties for tampering.
Locomotive owners are required to perform a minimum amount of
maintenance as specified by the manufacturer or remanufacturer for
components that critically affect emissions performance. Such
maintenance is to be specified by the manufacturer or remanufacturer at
the time of certification, and the locomotive owner is required to
perform the specified (or equivalent) maintenance, or be subject to
tampering penalties.
J. Miscellaneous
J.1. Liability for Remanufactured Locomotives and Locomotive Engines
The Act defines ``manufacturer'' as ``any person engaged in the
manufacturing or assembling'' of the new motor vehicles or new motor
vehicle engines. In cases where a locomotive remanufacture system is
certified by one entity and installed by a different entity either
could conceivably be considered the manufacturer. In the proposal EPA
sought to define where liability for in-use emissions performance
should lie in such circumstance. EPA is finalizing the proposed
liability scheme today. Under this approach, the primary liability for
the in-use emissions performance of a remanufactured locomotive or
locomotive engine would be with the certificate holder. In cases where
the certificate holder and installer are separate entities, the
certificate holder will be required to provide adequate installation
instructions with the system. Since the primary liability is presumed
to apply to the certificate holder, the certificate holder has an
incentive to ensure that the systems are properly installed.
Ultimately, the installer will be liable for improper installation
under the tampering prohibitions. The installer will still be
considered to be a manufacturer, and thus is also potentially liable
under other provisions of this part and the Act. Similarly, any
supplier of parts could be considered a manufacturer, and potentially
liable for a locomotive's in-use emissions. However, EPA does not
intend to hold an entity liable for actions for which the Agency
believes that it has no knowledge of or control over. As was previously
discussed, EPA expects to hold the certificate holder primarily liable
for the in-use emissions performance of locomotives remanufactured
under it's certificate of conformity.
J.2. Defect Reporting and Voluntary Emission Recall
EPA is finalizing the provision that a manufacturer or
remanufacturer of locomotives or locomotive engines file a defect
information report whenever the manufacturer or remanufacturer
identifies the existence of a specific emission-related defect in ten
or more locomotives, or locomotive engines. EPA proposed that a defect
information report be filed if an emission related defect is identified
in a single locomotive or locomotive engine, but believes that ten is a
more appropriate number for reasons discussed in the SAC accompanying
this action. No report will need be filed if the defect is corrected
prior to the sale of the affected locomotives or locomotive engines.
Further, manufacturers must file a report whenever a voluntary emission
recall is undertaken.
J.3. Tampering
EPA is finalizing its proposal to codify the tampering prohibition
in section 203(a)(3)(A) of the Act in the locomotive regulations. While
this provision of the Act on its face applies to tampering with motor
vehicles and motor vehicle engines, section 213(d) directs EPA to
enforce the nonroad vehicle and engine emission standards in the same
manner as the Agency enforces the motor vehicle emission standards
adopted under section 202 of the Act. The statutory tampering
prohibition is critical to ensure that vehicles and engines designed
and manufactured to comply with EPA emission standards for their full
useful lives do not in fact violate such standards due to actions taken
both before and after introduction into commerce. For this reason,
pursuant to its authority to enforce locomotive emission standards in
the same manner as the motor vehicle emission standards, EPA is
adopting a regulatory provision that prohibits any person from removing
or rendering inoperative any device or element of design installed on
or in a locomotive or locomotive engine in compliance with EPA's
regulations prior to introduction into commerce, and from knowingly
removing or rendering inoperative any such device or element of design
after introduction into commerce.
All persons will be prohibited from tampering with any emission-
related
[[Page 18992]]
component or element of design installed on or in a locomotive or
locomotive engine. Locomotive tampering provisions will help ensure
that in-use locomotives remain in certified configurations and continue
to comply with emission requirements. The Agency is applying the
existing policies developed for on-highway tampering to locomotives and
locomotive engines included in this rule.4 In addition, EPA
considers knowingly failing to properly maintain a locomotive or
locomotive engine to be tampering, as was previously discussed in the
section on railroad requirements.
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\4\ See Office of Enforcement and General Counsel; Mobile Source
Enforcement Memorandum No. 1A, June 25, 1974 (public docket A-94-31,
item II-B-5). EPA is not revising Memorandum No. 1A in today's
action.
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J.4. Emission Warranty
In accordance with section 207(a) of the Act, manufacturers and
remanufacturers must warrant to the ultimate purchaser and any
subsequent purchaser, for a specified warranty period set by EPA, that
the emission related components and systems of locomotives and
locomotive engines are free from defects in material or workmanship
which would cause such locomotives or locomotive engines to fail to
conform with applicable regulations. The statute also requires
manufacturers to provide a ``time of sale'' warranty that the vehicle
or engine is designed, built, and equipped so as to conform at the time
of sale with applicable emission regulations. See 42 U.S.C. 7541(a)(1).
EPA proposed an emission warranty period for the full useful life
of a locomotive. However, for reasons fully discussed in the SAC, the
Agency is finalizing an emission warranty period for locomotives that
parallels that for the heaviest heavy-duty on-highway engines. For
those engines, the current warranty period is roughly one-third of
useful life. Thus, for locomotives the warranty period will be one-
third of useful life, as based on the minimum useful life value of 7.5
MW-hr. This period is the minimum warranty period. As for heavy-duty
diesel engines, if a locomotive is covered by a mechanical warranty for
a period longer than the minimum warranty period, then the regulations
require the emission warranty to be at least as long as the mechanical
warranty.
J.5. Defeat Devices
As is the case for other regulated nonroad and on-highway vehicles
and engines, these regulations for locomotives make it illegal for any
manufacturer, remanufacturer, or any other person to use a device on a
locomotive or locomotive engine which reduces the effectiveness of the
emission control system under conditions that would not be reflected in
measurements made using the normal emission test procedures and
conditions, especially where the feature had the effect of optimizing
fuel economy at the expense of emissions performance. Such ``defeat''
devices are specifically prohibited for motor vehicles under section
203 of the Act. Section 213(d) of the Act directs the Agency to enforce
the locomotive standards in the same manner as it enforces motor
vehicle standards. Therefore, EPA is establishing an explicit
prohibition against the use of defeat devices with locomotives or
locomotive engines subject to the federal standards. Examples of some
of the types of design features that EPA classifies as defeat devices
are contained in the RSD.
Since the use of defeat devices effectively renders the specified
test procedures for certification, production line, and in-use testing
inadequate to predict in-use emissions, EPA reserves the right to test
a certification test locomotive or engine, or require the manufacturer
or remanufacturer to perform such testing over a modified test
procedure if EPA has reason to believe a defeat device is being used by
a manufacturer or remanufacturer on a particular locomotive or
locomotive engine. In addition, EPA is also establishing notch caps for
in-use testing that prohibit any unreasonable deviation from
certification emission rates under any test conditions.
J.6. Exclusions and Exemptions
EPA is adopting regulations which allow exemptions from today's
regulations for certain purposes. These purposes include research,
investigations, studies, demonstrations, training, or for reasons of
national security. Export exemptions, manufacturer-owned locomotive
exemptions, and some national security exemptions are automatic, and
manufacturers and remanufacturers need not apply to EPA to obtain such
an exemption. Other exemptions must be obtained by application to EPA.
J.7. Nonconformance Penalties
EPA is not including any provisions for nonconformance penalties
(NCPs) in today's action, for the reasons described in the proposal.
However, the Agency will monitor efforts to develop technology to
comply with these regulations. Should the need for NCPs become evident
in the future, EPA will undertake a rulemaking action at that time to
develop appropriate NCPs.
J.8. Aftermarket Parts
In the proposal, EPA stated its intent to follow the approach to
aftermarket parts it currently uses for on-highway vehicles.
Specifically, EPA proposed to allow the certification of aftermarket
parts according to the provisions of 40 CFR part 85, subpart V. For
those aftermarket parts not certified according to those voluntary
provisions, EPA proposed to apply the policies described in EPA Mobile
Source Enforcement Memorandum No. 1A (``Memo 1A''), which outlines the
Agency's position on tampering with respect to the use of replacement
components on certified vehicles and engines.5 In general,
Memo 1A states that EPA will not consider the use of aftermarket parts
to be tampering if those parts can be shown to be identical in all
material respects to the original parts they are replacing. Conversely,
Memo 1A also states that the use of an aftermarket part would be
considered tampering if it causes or contributes to an increase in
emissions of a regulated pollutant. In general, EPA is finalizing the
approach it proposed. However, the Agency does not believe that the
provisions of 40 CFR part 85, subpart V are appropriate for the
locomotive industry since those provisions are intended to apply to on-
highway vehicles and engines. Instead, EPA is promulgating regulations
to allow aftermarket parts suppliers to petition the Agency for advance
approval of parts under the tampering policy. Such an approval would
not constitute a formal certification, but would merely show that,
based on an engineering analysis and/or emissions test data, that the
part is identical in all material respects to the original. This
advance approval would provide some assurance to entities which use the
part that they will not be subject to enforcement action under the
tampering prohibition for using that part. However, the entity which
manufactures and offers the part for sale will be held liable for any
in-use nonconformities attributable to that part, and could be subject
to a recall action if the part were used in the remanufacture of a
locomotive, as discussed previously in the discussion on liability for
remanufactured locomotives. If a part were used for maintenance, rather
than during remanufacture, and it caused an in-use nonconformity, its
manufacturer may be liable for a tampering violation.
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\5\ Ibid.
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[[Page 18993]]
J.9. Importation of Nonconforming Locomotives
Nonconforming locomotive engines originally manufactured after the
effective date of this rule will not be permitted to be imported for
purposes of resale, except under certain limited exemptions. This rule
finalizes most of the proposed exemptions, including temporary
exemptions for repairs and alterations, testing and display, and
permanent importation exemptions for national security. For reasons
discussed in the SAC, EPA is not finalizing the proposed provision to
allow the importation of certain locomotives and locomotive engines
proven to be identical, in all material respects, to their
corresponding EPA certified versions. While the U.S. Customs Service
may consider typical current cross-border traffic between the U.S. and
Canada or Mexico to constitute the importation of locomotives, EPA is
providing an exemption for such traffic if its use in the U.S. is
incidental to its primary operation. Such cross-border traffic is not
currently extensive.
EPA is not taking any specific actions, such as limiting export
exemptions, in order to assure that nonconforming locomotives from
Canada or Mexico do not operate extensively in the U.S. However, the
Act does give EPA the authority to regulate new locomotives and
locomotive engines manufactured (or remanufactured) for introduction
into U.S. commerce. A locomotive which is exported for use primarily
outside of the U.S. and whose operation within the U.S. would be
incidental to its primary operation is not considered to have been
introduced into U.S. commerce for the purposes of these emission
standards. Should the Agency determine in the future that emissions
from uncontrolled Canadian or Mexican locomotives operating in the U.S.
have become a significant problem because they are operated in such a
way that they should be considered to have been introduced into U.S.
commerce, then it will exercise its authority under the Act, consistent
with the restrictions of any relevant trade agreements, to control such
emissions.
J.10. Passenger Locomotives
The EPA recognizes Amtrak's comments to the docket on the proposed
rule. In the comments Amtrak noted that passenger railroads face a
variety of challenges both fiscally and otherwise in complying with the
remanufacturing aspects of the rule. EPA is thus delaying the effective
date of the Tier 0 requirements until January 1, 2007 for passenger
locomotives.
In order to address the concerns of Amtrak and to prevent
substantial negative impacts from the rule on passenger rail providers,
both intercity and commuter, the EPA will undertake to work with the
Department of Transportation, Amtrak, and concerned commuter
authorities to ensure that the cost of remanufacturing systems,
including all associated development and testing costs, do not create
an unreasonable economic burden. EPA will also develop a mechanism for
providing alternative compliance options such as ABT or NCPs for
locomotives for which compliance systems would present an unreasonable
economic burden or force a locomotive into noncompliance with Federal
safety standards, or other standards that govern the use of that
locomotive in revenue service (e.g., axle weight restrictions).
The EPA recognizes that no passenger service, either commuter or
intercity, covers its operating expenses; that these entities are
largely funded through tax transfers and other subsidies, and that
passenger rail represents a benefit, current and developing, to the
environment through modal displacement.
K. Preemption
EPA is adopting the proposed regulatory provision clarifying the
scope of federal preemption of state standards and requirements
relating to the control of emissions from new locomotives and new
engines used in locomotives, pursuant to the Agency's authority under
Section 209(e) to promulgate regulations to implement this section, for
the reasons stated in the NPRM. The provision adopted today codifies in
federal regulations the statutory preemption of such state standards
and requirements, and lists categories of state regulations that EPA
has determined are preempted for a period exceeding the useful life of
the locomotive or engine. These categories of state regulations are
preempted under Section 209(e)(1), 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. EPA's analysis of each standard
listed in the preemption regulation provision is described in the NPRM.
EPA's detailed response to comments received on the proposed
preemption provision are contained in Chapter 1 of the SAC document in
the docket for this rulemaking. EPA solicited comment on the issue of
whether state in-use testing programs that utilize the FTP are
preempted by CAA Section 209(e)(1), and whether they should be included
in the list of preempted provisions in the regulations clarifying the
scope of federal preemption of state standards and requirements
relating to the control of emissions from new locomotives and new
locomotive engines. EPA received comments arguing that such state
testing requirements are preempted, and comments opposing that
position. Based on the available information, EPA is not currently
including such programs in the regulations specifying those state
requirements that are categorically preempted by Section 209(e)(1)
because EPA cannot conclude that a state's requirement that in-use
locomotives be tested using the FTP to determine compliance with the
federal standards would necessarily affect how manufacturers and
remanufacturers design new locomotives and new locomotive
engines.6
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\6\ EPA is referring to real and concrete effects on the design
and manufacture of new locomotives and new locomotive engines,
whether or not large, rather than to speculative or trivial effects.
---------------------------------------------------------------------------
In addition to the discussion in the NPRM, EPA considered the
effect of its own compliance testing program, which includes pre-
production certification provisions to check that locomotives and
locomotive engines are designed to meet the emission standards,
production line testing to determine whether, when this design is put
into production, the new locomotives and engines meet the standards,
and an in-use testing program to check whether the standards are being
met while the locomotives and engines are in use in the railroad fleet.
These requirements taken together form one of the most comprehensive
mobile source compliance programs that has ever been implemented by
EPA. Given the robust nature of this program, EPA expects that
manufacturers and remanufacturers will make the efforts necessary to
ensure that their locomotives comply with the federal emission
standards in-use. Thus, EPA is confident that few, if any, states will
find it worth the effort to develop their own state testing program
using the FTP. As such, even without a federal regulation that
expressly preempts such state testing requirements, the Agency does not
expect that state emission testing of locomotives would ever be very
extensive. This is significant, because the amount of state testing
that is required would affect whether the program(s) would impact the
design of new locomotives and new locomotive engines in a manner that
warrants
[[Page 18994]]
preemption. With limited state testing, it is not clear what impact
state testing would have on the design of new locomotives, or whether
it would constitute the kind of effect that would warrant preemption of
state testing, especially because manufacturers and remanufacturers
will already be basing their compliance on the federal standards and
test procedure. Therefore, since EPA cannot conclude that state testing
using the FTP would have an effect on locomotive design, EPA is not
including state testing programs using the FTP in the list of preempted
provisions. Although EPA is not aware at this time of any state's
intent to adopt locomotive testing requirements, EPA will monitor state
actions in this area. If it turns out that state emission testing
requirements identical to the FTP do in fact affect the design and
manufacture of new locomotives and engines such that preemption is
view to including such state testing programs in its regulatory list of
preempted state controls.
EPA also received comment on the length of the preemption period.
EPA proposed a preemption period equivalent to 1.25 times the useful
life period. As is described in the SAC, EPA has determined that the
available information supports a preemption period of 1.33 times useful
life. This information shows that, because of the distribution of
remanufacturing intervals, a small but significant number of
locomotives will remain in use after the proposed preemption. EPA has
concluded that manufacturers and remanufacturers would be required by
the railroads to address any state requirements listed in the
regulation that applied to locomotives between 1.25 and 1.33 times the
useful life period.
The list of state controls that are explicitly preempted under
today's regulation is not intended to be exclusive. Any state control
that would affect how a manufacturer designs or produces new (including
remanufactured) locomotives or locomotive engines is preempted by
section 209(e)(1). It is also important to note that certain categories
of potential state requirements, while not expressly preempted by
section 209(e)(1) or EPA's regulations implementing section 209(e)(1),
are preempted because they would directly conflict with federal
regulations. Under section 203(a)(3) of the Act, tampering includes
actions that can reasonably be expected to contribute to an increase in
emissions of a regulated pollutant. For example, a state requirement to
alter the fuel injection system or air intake system of a locomotive to
achieve NOX reductions is likely to cause increased PM and
smoke emissions. Therefore, a railroad operator could not comply with
the state requirement without making an adjustment to its locomotive
that can reasonably be expected to result in an increase in emissions
of a regulated pollutant, and would therefore be violating the federal
prohibition against tampering. In such cases where it would be
impossible to comply with the state requirement without violating a
federal prohibition, the federal law preempts the state law. For this
reason, such state requirements would be prohibited under the national
rule. Finally, state emission controls that are not preempted may
violate the Commerce Clause of the U.S. Constitution by imposing an
undue burden on interstate commerce. Neither today's regulations, nor
section 209 of the Act, address the scope of any limitations on state
action under the U.S. Constitution.
It should be noted that EPA has previously promulgated regulations
that implement the provision of section 209(e)(2) of the Act that
requires that states obtain a waiver prior to regulating nonroad
sources. Under this provision, all state requirements relating to the
control of emissions from in-use locomotives and locomotive engines,
including state requirements not listed as preempted in 40 CFR
85.1603(c)(1), are subject to section 209(e)(2)'s waiver requirement.
The regulations state that EPA will authorize California to adopt and
enforce such standards and requirements, unless EPA makes certain
findings. For example, a waiver will not be granted if EPA finds that
California does not need such requirements to ``meet compelling and
extraordinary conditions,'' or if EPA finds that the requirements are
not consistent with section 209 of the Act. By including new
locomotives and new locomotive engines in section 209(e)(1) of the Act,
Congress recognized the unique factual circumstances relating to this
industry, and provided broader preemption for locomotives than for most
other nonroad vehicles and engines. EPA would not grant California a
waiver for any requirements if it finds that such California provisions
are inconsistent with section 209(e)(1). In determining whether to
grant a waiver, EPA would consider the unique circumstances applicable
to locomotives and railroads at that time, such as the effect on engine
design and on EPA's comprehensive program.
Unless EPA authorizes California to adopt and enforce its own
requirements relating to the control of emissions from locomotives, no
other state may adopt or enforce any such requirements. However, once
such authorization is granted, other states with state implementation
plan provisions approved under part D of Title I of the Act may adopt
and enforce, after notice to the Administrator, requirements identical
to those authorized for California. The significance of this provision
is that no state can adopt testing or other requirements re