# Petition for Writ of Certiorari — American Road & Transportation Builders Ass'n v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2073%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 562 U.S. 836 ## Text supreme Court, U.S. FILED 091463 JUN 3 2010 OFFICE OF THE CLERK No. Ju The Supreme Court of the Anited States AMERICAN ROAD & TRANSPORTATION BULLDERS ASS’N PETITIONER ENVIRONMENTAL PROTECTION AGENCY, E77 Al RESPONDENTS On Petition for Writ of Certiorari to the U.S. Court of Appeals for the District of Columbia Circuit PETITION FOR WREE OF CERTIORARI Nick Goldstein Lawrence Joseph® AR TBA ‘Pransportation 1250 Connecticut Ave, Development Legal NW, Suite 200 Advocacy & Educ. Ctr Washington, DC 20086 1219 28th Street NW Tel (202) 669-5185 Washington, DC 20007 Fax (20%) 318-2254 Tel (202) 289-4434 Email h@larryyoseph.com Max (202) 289-4435 * Counsel of Record QUESTIONS PRESENTED for gudicial-review statutes such as Clean Air Act Section 807(b)1), 42 U.S.C. §7607(b)Q1), that provide a 60-day window within which to petition for review of final agency action directly in a court of appeals and that limit further review to after-arising errounds, do such statutes provide jurisdiction for courts to hear petitions for review filed within 60 days of agency denials of rulemaking petitions under 09 U.S.C. §553(e), as distinct from jurisdiction for only those petitions filed within 60 days of the arising of some new information? Whether re-promulgating a rule in its entirety “reopens” the rule to judicial review? Whether a pmor holding that a notice of proposed rulemaking mooted unreasonable-delay and constructive-denial claims on an administrative petition has preclusive etfect on the issue of whether the agency reopened the rule sufficiently to reopen yudicial review? Ioissue preclusion otherwise would reopen yudioial review, whether the court of appeals — as distinct from district courts under Clean Air Act §304(a)(2), 42 U.S.C. §7604(a)(2) — have jurisdiction for such unreasonable-delay claims? Whether three-judge panels are bound by the earher decision in an intra-circuit split in authority? PARTIES TO THE PROCEEDING Petitioner American Road & Transportation Builders Association (ARTBA”’) is a District of Columbia nonprofit trade organization with more than 5,000 members from all sectors and modes of the transportation construction industry (ncluding without limitation roads, public transit, airports ports, and waterways) and represents the collective interests of the U.S. transportation construction industry before the national executive, legislative, and judicial branches of povernment. Khespondents are the federal Environmental Protection Agency and its Administrator Lisa Jackson in her official capacity, as well as the interveners in the court of appeals: the Association of American Railroads, a railroad trade association: South Coast Air Quality Management District, an air-pollution control agency for the Los Angeles area; California Air Resources Board, the California state air-pollution control agency; and Natural Resource: Defense Council, an environmental advocacy group. Pursuant to this Court’s Rule 29.6 petihioner ARTBA states that it as a non-profit’ trade organization and that no publicly held company own: any interest 1n it TABLE OF CONTENTS Question Presented Parties to the Proceeding ‘Table of Content Appendis ‘Table of Authoritie: Petition for Writ of Certiorari Opimions Below Jurisdiction Authorities Involved Statement of the Case Factual Backpround statutory Background Regulatory Background Reasons to Grant the Writ | &S07(b) and All W rit: Act Provide heview ol Petition-Denial Claim \ &$307(b) Cannot Bar Previously Unrips (‘laim: 13 S307(b) Require: Pre Suit Petition () Panel Deviates from Other Circuit Id. All Writs Act Allows Review, ven if ¢ SOT Ch) ldoe: Not 1 | ae promulgation re Opel. Keview lll. Issue Preclusion Requires Reopenc) V. CAA Review Raises Important Issue Conclusion lil IV. Karher Decisions Control Intra-Cireuit Splits APPENDIX Am. ftoad & Transportation Builders Ass'n v. EPA, No. 08-1381 @D).C. Cir. Dee. 11, 2009) (decision) ......... la Ami po & Transportation Builders Assn v. PA, No. 08-1881 (D.C. Cir. Der Ll, 2009) PURINE IIe fs cocaateaastevceneshusdcsesieseavesss .. 15a Am. Road & Tran: portation tines ‘s sn uv. KPA, No. 08-1381 (D.C. Cir. Mar. 5, stan ioudas denying panel Ree aeE seu a das saad eae anes lGa Am. load 7 Transportation Builders Ass'n v. ePA, No. 08-1881 (D.C. Cir. Mar. 5, 2010) (order denying ereerie Oh SUR cs occas verre ie Control of Emissions from Nonroad Spark-Jgnition Mngines and Equipment, 72 Ked. Reg. 28,098 (2007) (notice of proposed rulemaking) ............. ISa Kesponse to the Petition of American Road & Transportation Builders Association to Amend Regulations Regarding the Preemption of State Standards Regulating missions from Nonroad Engines (2008) (petition denial) .....................08. 2a0 Control of missions from Nonroad spark-lgnition kengines and Equipment, 73 FR 59,0384 (2008) (final rule) &8a Administrative Procedure Act , §4(e), 5 U.S.C ER ace vad fad cad oanaken grasa eines anne hina an eeteas aes svasen ee All Writs Act. BE UF A, SUGGIED oiviccccsescccves .. 92a Clean Air Act §] 10(a)(2)(E)G), 42 U.S.¢ 874 10(a)C2) (IK) Q)...... oe ... 92a Clean Air Act. §209, 42 U.S.C. §7548.... 92a Clean Air Act $307(b), 42 U.S.¢ ' §7607(b) tein arsenal Pub. LL. No. 108-199, §428, 118 Stat 2. 418-19 (2004) (Bond Amcndment’)..... cnceces GOR BO OB. BE RG CRD occ ivcss cn ansschsdecss ceiidccas ae 40 CER. §85.1603 (1995) A 100 I Pe EES ici cr 1a cavcwox uc ce taancus as coxcceden acura 1O038a 40 C.F.R. §1074.10 .. . 104a ce Re hd a es ance coneedas conde eda erenaeaes 104a See ee MEE oa s'gna ccs occ su andoursavesdsedauacuscacsoaes LO5a 4A0 C.FLR pt. &9, App Tey ee PEN NRE a KPA Mot. to Dismiss for Mootness, Am. Road & Transportation Butlders Ass'n vo. EPA, mo. 06-1112 @).C: ; soca) C19 ft) C4 db. REP. 91-1196 (1970) HR. REP. 94-1175 1976) 1), 16, 2] mo. REP. 95-294 (1977) lO, 16, 2) Rules, Regulations and Order: CT. RULE 32.3 BUN RE BEF vison saniscccagancscndasicciervsccosandous 12 Pe ae Be Oe cds asuscvusvcueduaneulssisecnesin, Reb 10 C.ELR. §1074.12(b).. 12 bY Fed. Reg. 21,598 (1987)... Ry 58 Fed. Reg. 17,948 (1998).............cccccsccocccescscccesceeee 2G 59 Fed. Rep. 36,969 (1994) .0.....cc ccc cccc ccc eccu eee 3349 60 ed. Reg. 28,333 (1995) »G 66 Fed. Reg. 57,223 (2001)............ 33 66 Ted. Reg. 65,3876 (2001)........... 6G 72 Fed. Reg. 28,098 (2007) .. 6, 25, 2& 73 Fed. Reg. 59,034 (2008)....... , 6, 25 75 Fed. Reg. 28,509 (2010).... 33 25 Tex. Reg. 4059 (2000)....... a: 25 ‘Vex. Reg. 4080 (2000) 13 26 Tex. Reg. 6935 (200]).......... 13 Other Authorities L1A CHARLES ALAN WRIGHT, ARTITUR R. MILLER & MARY KAY KANE, WRIGHT AND MILLER. Ficb. PRAC. & PROC. Civ.2d §2944 (1995 & Supp 9351 (D.C. Cir.), Bricf for the Federal Appellees, 1995 WL, 17204299 (Aug. 01, Natl Mining Ass'n v. Dep't of Interior, No. 94 9351 (D.C. Cir), Brief of Appellants Interstate Mining Compact Commission, 1995 WL, 19G5) 17204298 (Jul. O88, 1995)........... | | Natl Mining Ass'n v. Dep't of Interior, No. 94 9391 (D.C. Cir.), Brnef of AppeHants National Mining Association, et al., 1995 WIL, 17204297 (ol. ZS, LOOB)....c.cekccces | . 1] Natl Mining Ass'n v. Dept of Intervor, No. 94 ogo) (D.C. Cir), Brief of Appellees National Wildhie Federation, ef al., 1995 WL 17204300 (Aug. 28, 1995) , scaraeek 1] Natl Mining Ass'n v. Dept of Intertor, No. 94 9351 (D.C. Cir.), Reply Bricf of Appellant: National Mining Association, ef al, 1995 WI, capa ee SISO, 28S ED) oo .ckccceasasiccces. | ] Natl Mining Ass'n v. Dept of Interior, No. 94 5351 (D.C. Cir.), Reply Brief of Appellants lnterstate Mining Compact Commission, 1995 Wi. 17204305 (Sep. 11, 1995) oer wee re 5 Natl Mining Assn v. Dept of Interior, No. 94 S51 (D.C. Cir), Supplemental Brief for the loderal Appellee: 1995 WI 17204308 (Oct 23, IYO) 1 | Natl Mining Ass'n v. Dept of Interior, No. 94 9401 (DC. Cir.), Supplemental Bnet of Appellants National Mining Association, et al., 1995 Wh 1720480) (Oct. 23, 1995) 1] Natl Mining: Ass'n v. Dep't of Intertor, No. 94 9301 (UC. Cir.), Supplemental Briet of Appellant lnterstate Mining Compact Commission, 1995 Wh 17204302 (Oct. 23, 1999) 1 | PETITION FOR WRITE OF CERTIORARI The American Road &€ ‘Transportation Builder: Association CART BA”) respectfully petitions this Court to issue a writ of certiorart to review the judgment of the U.S. Court of Appeals for the Distmet of Columbia Circuit that §807(b)(1) of the federal Clean Air Act ((CAA”), 42 U.S.C. §7607(b)Q), and the All Wnts Act, 28 U.S.C. §1651(a), do not provide jurisdiction for ARTBA’s petition for review of qither the preemption rules promulgated by the Mnvironmental Protection Agency (lPA”) or HPA’s demal of AR'TBA’s administrative petition to amend QO} repeal Prov isions of those GPA preemption rules. OPINIONS BELOW The court of appeals’ decision is reported at 588% I.3d 1109 and reprinted in’ the Appendix CApp.”) at la. ARTBA’s petition for review in the court of appeals sought review of two final IEPA actions announced in the Kederal Register on October & 2008, 73 Fed. Reg. 59,034, 59,130 (2008), and reprinted in pertinent part -in the Appendix at &&a (final rule) and 22a (petition denial). JURISDICTION The court of appeals issued its decision on December J1, 2009, and denied timely petitions for reconsideration and rehearimmye en banc on March 5, YZOIO (orders reprinted at App. 16a and_= 17a, respectively). Under ARTBA’s view of the law, the court of appeals had jurisdiction under 42 U.S.C $7607(b)(1) and 28 U.S.C. §1651(a). This Court has 1.S.C. §1254(). AUTHORITIES INVOLVED Phi Appendix quotes Administrative Procedure Act §4(e), 5 U.S.C. §5538(e), the All Writ: yur) diction under 28 | Act, 28 U.S.C. §1651(a), and CAA §307(b), 42 U.S.C §$7607(b), as well as CAA §110(a)(2)(E)Q) and §209, A2 U.S.C. §§87410(a)(2)(E)Q0), 75438, PUB. L. No. 108- 199, §428, 118 Stat. 3, 418-19 (2004) (hereinafter, the “Bond Amendment’) , and relevant provisions from IePA’s implementing rules The authorities fall into four primary areas: |. Administrative Rulemaking Petitions. In 1946, Congress authorized the public to petition agencies to amend or repeal a rule, 5 U.S.C. §553(e), as part of the Administrative Procedure Act, PUB. L. No. 79-404, 60 Stat. 237 (1946) (“APA”). As explained infra, judicial review of the denial of such petitions (as distinct from the oryinal rule) can “reopen” the time for challenging ayency rules where the statute of limitations has run on direct challenges to the underlying rule. 2. CAA Judicial Review. In 1970, Congress applied the precursor of current §3807(b) to judicial review of a subset of EPA action, PUB. L. No. 91-604, §12(a), 84 Stat. 1676, 1707 (1970), which the 1977 amendments expanded to apply to most final EPA action. PUB. L. NO. 95-95, §3805(c)(1)-(3), 91 Stat. 685, 776° (1977). CAA §307(b)’s central provisions are (a) direct review in the courts of appeal; (b) review of nationally applcable actions exclusively in the D.C. Circuit, with review of regionally applicable actions in the court of appeals for the relevant circuit; and (ce) the jurisdictional requirement to petition for review in the relevant court of appeals within 60 days of IEPA’s publishing notice of its action in the lederal Register or within 60 days of after-arising grounds. 42 U.S.C. §7607(b)Q). In addition, 8307(b)(2) prohibits courts from reviewing in an enforcement proceeding any KPA action for which ox a review could have been had under §3807(b)(1). 42 U.S.C. §7607(b)(2).! 3. CAA Preemption. In 1967, Congress first introduced CAA preemption for onroad vehicular emission standards, with an exception for California PUB. L. No. 90-148, §208, &1 Stat. 485, 501 (1967); Kingine Mfrs. Ass'n v. South Coast Air Quality Management Dist., 541 U.S. 246 (2004) (CEMA 1 SCAQMD”). The 1970, 1977, and 1990 amendments modified CAA’s onroad preemption inter alia to allow other states to adopt California’s vehicular-emiussion program and to prohibit state regulation of federally regulated components during the federally regulated useful life. 42 U.S.C. §§7507, 7543(¢). In 1990 Congress introduced parallel provisions for CAA preemption of monroad vehicular emission standards and other requirements. PUR. L. No. 101-549, §222(b), 104 Stat. 2399, 2502 (1990). Significantiy, §209(e)(1) preempts all states, including California, from adopting or enforcing emission-related standards or other requirements for new farm and construction equipment under 175 horsepower and new locomotives. 42 U.S.C. §75438(e)(1). In 2004, Congress enacted the Bond Amendment, which (among other things) reinforces the breadth of the “standards and other requirements” language. PUB lL. No. 108-199, §428(e), 118 Stat. at 418-19. Procedural thresholds aside, this litigation concerns the scope of §209(e)’s nonroad preemption. Before 1977, §&307(b)C1) provide d 30 days. PUB. L. No. 9] 604, §12(a), $4 Stat. at 1707. For consistency, AR'TBA refers to §307(b)1)'s window as having 60 days throughout the petition A. CAA Implementation Plans. In 1970, Congress introduced state implementation plans (“SIPs”) for attamning the national ambient air quahty standards (“NAAQS”), where states mode} the emission reductions needed to attain the NAAQS and then develop SIP control measures to provide those emission reductions. See 42 U.S.C. §7410. As relevant here, the principal requirement for a SIP measure is that the state have authority to enforce it. 44 USC. §7410(a)(2)(14)0). Obviously, state rules that §209(c) preempts cannot meet this criterion for IPA approval of a SIP measure. STATEMENT OF THE CASE As the success of onroad vehicular standards shows, regulators can most effimently and equitably impose vehicular controls at the manufacturing stage, with costs spread across the entire market and incurred by purchasers incrementally as fleets expand or turn over. Certainly, new-vehicle preemption does not end the instant vehicles leave the showroom, subjecting owners to regulation by all 50 states and countless pohtical subdivisions Against that) backdrop, this litigation raises four substantive issues on §209(e)'s preemptive scope: (1) Whether §Z0U(C) preempts fleetwide averaging, carly retirement, and purchase-sale requirements (collectively, “Fleet Rules’)? (2) Whether §209(e) preempts restrictions on the use, hours of operation, and fuel of both new and non-new nonroad vehicles (collectively, “In-Use Controls”)? (t) days of some alter-arising yround the 2ZO0Z petition to Ibs Or baie ZO06 petition to this court The answer is ie traavhtflorward than it may appeal Qur cases on the matter start with Oljato Chapter of the Navajo Tribe vo. Train, 515 2d 654, 666 (4 ( I ee Fea Vhiere W t aid that it wa “Within ou mnecrenl powe) LO eniorce our ntere fain Informed decision-making by requiring presentation to the Administrator of any new information thought to justify revision of a standard .. . reviewable under Section O72 Of course the ripening of a petitioner's claim is hardly the sort of novclty that scems to require special ayency reaction. Later we raised the ante by characterizing this rule as jurisdictional, The Group Against Smog and Pollution, Ine. v. HPA, 665 Yd 1484, 1290 n.45 (D.C. Cir. 19%1), see also Natural Resources Defense Council, Inc. v. Thomas, 845 F.2d 1088, 1091-92 (D.C. Cir. 1988), but those ceases, hke Oljato, involved claims that new Information called for a rule change—not that a mtential claim had become newly justiciable J J As it happens, AR'THA cites no event (other than MPA’s decision reyeeting its petition, which National Mining Association says doesn’t count) that would bring either filing within any newly opened 60-day window. ARTBA makes some reference, albeit in the context of discussing a different matter, to a ZOO] Texas law imposing diesel emission lmits that ARTBA says is in fact preempted by §& 209(e) and that “impose: additional costs and repvulatory burdens on ARTBA’s members,” Petitioners Br. at 26 —but that law took effect well over 60 days before the organization’s July 12, 2002 petition to KPA Another event that ARTBA sces as significant is RPA’s 1998 rulemaking concerning the scope of federal preemption of state reyulations of new locomotive engines, which was also obviously too remote in time. Finally, ARTTBA now seeks to make hay of a 2004 Supreme Court decision and a 2004 statutory amendment—neither of which can render its ZOOZ petition or its ZO0% appeal “filed within sixty days after such grounds arise.” See §& SO7(b)O1). 1 O)sa Because we find that none of these events satisfies the 60-day criterion in § SO7(b)Q)) for challenges based on after-amsing grounds, we need not determine where ARTBA should have filed in order to invoke § SO7(b)O)’s provision for after-arisiny grounds, nor whether ARTBA’s petition met the additional requirement that it be “based solely” Ol) those grounds. ARTBA next argues that an EPA rulemaking in 2007 0% ellectively reopencd the regulations now at issue to judicial review. See National Ass'n of Reversionary Prop. Ouners v. Surface Transp. Bd., 166 F.Sd 135, 141 (DC. Cir. 199%) (““NARPO”) (describings the “reopening doctrine”). Jt does not rest on the fact that EVA responded to its arguments. We rarcly if ever find such a response sufficient; if a party were allowed to “yoad an agency into a reply, and then sue on the prounds that the avency .. . re- opened the issue,” Am. Jron & Steel Inst. v. KPA, &8%6 2d 390, 39% CC. Cir. 1989), the agency’s thorough answer would put it at risk of “reopening,” while a taciturn response would put ito at cisk of being faulted for acting without reasoned de isionmaking. see National Min. Ass'n, 70 F.8d at 2451. Rather, ARTBA contends that in the course oF the separate rulemaking the agency conducted simultaneously with the pubheation and rejection of ARTBA’s petition, PA effectively reconsidered the totality of its & ZO9%(c) regulatory framework. What HPA in fact did in its rulemaking notice was to desenbe the existing statutory regime, identify the regulations that implement it, and lay out several discrete potential amendments, abjuring any intent to introduce substantive changes except In two designated realms: ila We arc proposing to ercate a new part 1074 that would describe the federal preemption of state and Jocal emission requirements. This is being done as part of KPA’s onyvoiny cffort to write its regulations in plain language format in subchapter U of title 40 of the CFR. The proposed regulations are based directly on the existing regulations in 40 CEFR part 4&5, subpart Q. With the exception of the simplification of the language and specific changes described in this section, we are not chanping the meaning of these regulations ’ 72 Ked. Reg. at 2%,209/2-3 (emphasis added). The “speeihe changes” the agency referenced consisted of two new regulations, both implementing recent lepislation preempting states other than California from imposing certain emissions-related rules on a new class of small engines. /d. In the final rule announcement, EPA carmed out its proposal, repeating the language quoted above more or less verbatim. 753 led. Reg. at 59,130/1. Consistent with its) asserted intention to rewrite the relevant repulations in plain danguape without changing their meaning, IPA also republished its § ZO9(e) rules in full. dd. at 59,380 Considering “the Cntire context of the rulemaking,” NARPO, 158% FoSd at 141, we conclude that HPA did not reopen consideration of the repulations ARTBA asked it to revise. Seemingly on ARTBA’s side are Ohvo vu. KPA, 638 F.2d 1325, 132% (IOC. Cir. 198%), and Montana vo. Clark, 749 | 740, 744 (D.C. Cir. 1984), cases in which the agency included the pre-existing regulation in a Notice of «2d Proposed Kulemaking and responded to comments on } 2a provisions later alleged to have been reopened; in both cases we found a reopening. But here, as in National Mining Association, any such responses were In answer to comments received pursuant to the pubheation of petittoner’s own call for revisions, which, as we said in National Mining, “is not, without much more, sufficient to trigger the reopener doctrine.” 70 F.3d at’) 145%. Though addressing feedback from ARTBA and others, the agency pave no “indication that fat] had undertaken a serious, substantive reconsideration” of the rules in question. See td. In fact, KPA went further, saying explicitly in its Notice of Proposed Rulemaking that it was “not proposing: to adopt the .. . changes requested by ARTRBA in its petition.” 72 Fed. Rey. at 26,209/38. As had the avenecy in National Mining, WPA appears merely to have sought comments on the premise that they might have persuaded it to actually reopen the matter. See 70 F.8d at 1451. hinally, ARTBA identifies one further piece of evidence indicating that KPA reconsidered the relevant regulations. In 2006, the organization filed suit alleging that KPA was unreasonably delaying acvion on ARTBA’s 2002 petition. Sec Am. Rd. & Transp. Builders Ass'n v. HPA, No. 06-1112 (D.€. Cir., Oct. 5, 2007). In the course of that ltipation, KPA argued that the case was moot since the agency had “commenced a rulemaking on the issues ARTBA raised.”” See Reply Br. at 7 (quoting No. 06-1112, Resp. Mot. to Dismiss at 3). In ARTBA’s view, this language amounts to a concession by IX V?A that it was reopening the rules ARTBA challenped. But even a cursory glance at the phrase, in its original context, reveals that HPA was simply referring to its sublication of ARTBA’s retition rather than J | ; stipulating for the purpose of that case and this one that the agency was revisiting the rules to the extent necessary to reopen them to judicial review. See Nattonal Min. Ass’n, 70 F.3d at 1351 (The decision to publish a petition for rule-making . . . 1s not evidence of a reexamination of the pohey at issue in the petition.”). We conclude that we are without jurisdiction to hear this petition. Accordingly, the case 1s Dismissed. United States Court of Appeals for the District of Columbia Circuit AMERICAN ROAD & TRANSPORTATION BULLDEKS ASSOCIATION, PETITIONER, VJ \ IENVIRONMENTAL PROTECTION AGENCY AND LISA PirREZ JACKSON, INHER OFFICIAL CAPACITY, RESPONDENT: A ASSOCIATION OF AMERICAN RAHLROADS, ET'AI INTERVIENORS No. O&-188] kiled On: Dee. 11, 2009 Qn Petition for Review of an Order of the Environmental Protection Agency Sefore: GARLAND and KAVANAUGH, Circuit Judges, and WILA.LAMS, Semor Circuit Judge JUDGMENT This cause came on to be heard on the pctition lor rCVicw ol all orde of the Mnvironmental Protection Apency and was argued by counsel. On consideration thereol, 1t 1s ORDERED and ADJUDGED that the pctition for review is dismissed for lack of Jurmsdiction, in accordance with the opimion of the court filed herein this date Per Curtam KOR THE COURT: Mark J. Langer, Clerk United States Court of Appeals for the District of Columbia Circuit AMERICAN ROAD & ‘TRANSPORTATION BULLDERS ASSOCIATION, PETITIONER y ENVIRONMENTAL PROTECTION AGENCY AND LUISA PEREZ JACKSON, IN HER OFFICIAL CAPACITY, RESPONDENTS ASSOCIATION OF AMERICAN RAILROADS, ETAL., INTERVIENORS No. 08-138] Mailed On: Mar. 5 2010 Qn Petition for Review of an Order of the Environmental Protection Agency BERPORE: Garland and Kavanaugh, Circuit Judges, and Willams, Senior Circuit Judge ORDER Upon consideration of petitioner’s petition for panel rehearing filed on January 25, 2010, it 1: ORDERED that the petition be denied. Per Curtam FOR THE COURT: Mark J. Langer, Clerk loa United States Court of Appeals for the District of Columbia Circuit IMERICAN ROAD & TRANSPORTATION BUILDER: ASSOCIATION PETIVIONER KeNVIRONMENTAL PROTECTION AGE! PEREZ JACKSON, IN HER OFFICIAL CAPACIT® ASSOCIA‘TION OF AMERICAN RAILROADS £7 INTERVENOR: hsled On: Mar. 5, 2010 (Qn Petition tor Review of an Order of the Mnvironmental Protection Avency BEERORE: Sentelle, Clnet Judge, and Goansburg Henderson, Rovers, ‘Tate Gaarland, Brown, Ganiffith, pudgee and Wilham and Kavanaurh Coircuat enior Circuit dude ORDER Upon consideration of petitiones petition fos re heariny i) bocarae and the ab ence Ola re quest ah any member of the court tor ORDERED that the a Vole it } pe tition bye ci 11 1¢ d Per Curtam KOR THE COUR’ Mark J Lane r, Ch rt ry 72 Fed. Reg. 28,098 (May 18, 2007) ENVIRONMENTAL PROTECTION AGENCY 40 CEFR Parts 60, 63, 85, 89, 90, 91, 1027, 1045, 1048, 1051, 1054, 1060, 1065, 1068, and 1074 [EPA-HQ-OAR-2004-0008; FRL-8303-7] RIN 2060-AM34 Control of Emissions from Nonroad Spark- Ignition Engines and Equipment AGENCY: Environmental Protection Agency (PA) ACTION: Proposed rule 7 Ts section x | describes a variety ol propo ed provisions that affect other categomes of engine: besides those that are the primary subject of this proposal. This include; the following changes * We are proposing to reorganize the repulatory language related to preemption of state standards and to clarify certain” provision: We are also requesting comment reparding a petition — to reconsider some of the provisions including the extent to which states may regulate the use and operation of nonroad engines and vehicle: x eR XI. Proposals Affecting Other Engine’ and Vehicle Categories A a& A A. State Preemption pection 2O9(c) of the Clean Air Act) prohibit: states and their political subdivisions from adopting or enforcing standards and other requirements relating to the control of emissions from nonroad engines or vehicles. Section 209%(e) authorizes IEPA to waive this preemption for California for standards and other requirements for nonroad engines and vehicles, excluding new engines that are smaller than 175 horsepower used in farm or construction equipment or vehicles and new locomotives or new engines used in locomotives. State: other than California may adopt and entorce standards identical to California standards authorized by EPA MPA promulgated regulations implementing section 209(c) on July 20, 1994 (59 IR 36987). EPA subsequently promulgated revised — regulations Implementing section 209(e) on December 30, 199% (62 FR 67733). See 40 CER part So, subpart () We are proposing to create a new part 10/4 that would deseribe the federal preemption of state and local CMmMISSION requirements This is being done a: part of KPA’s ongoing effort to write its regulations in plain language tormat in subchapter U of tithe 40 of the Cr The Prapos ed regulations are based directly OT) the existing regulations in 40 CER part 85, subpart QM With the exception of the simplification of the language and specie changes described in thi: section, we are not changing thie meaning ot these regulations Pursuant to section 428 of the 2004 Consohdated Appropriations Act we are proposing to add regulatory language to Implement the legislative restriction on states other than California adopting after September =] 2006, standards or. other requirement appheable to spark IvnItion Chpine smaller than 50 horsepower. We are also proposing to add, pursuant to that legislation, cmteria for WPA’ consideration in authorizing ( ahifornia Lo 1 dea adopt and entorce standards apphcable to such engines. 'Y Qn duly 12, 2002, the American Road and ‘Transportation Biulders Association (AR TBA) petitioned KPA to amend KPA’s rules implementing ection 209(e) of the Act.!% Jn particular, ARTBA petitioned KPA to amend its regulation and Interpretive rule regarding preemption of state and local requirements “that IM pose Mn- ust and operational controls or fleet-wide purchase, sale or use standards on nonroad engine: ARTBA beheve such control should bo preempted A wi are already” revising the preemption provisions to a certain extent in th rule, we beheve it is appropriate to respond to ARTTBA’s pebrllon int the context of this rule, while riving the public the ability to respond to provid comments regarding ARTBA’: petition HPA is not proposing tO adopt the explicit chanve reqgue ted by ARTBA in it: petition howevel MPA wall continue to review the arguments raised by ARTBA’s petition, a well as all further arguments provided by ARTBA e section 428 the Appropriation ket for 2004 “Petition to Amend Kules Implementing Clean Air Act ection 2OU(e) Amencan Road and ‘Transportation Build Association (ARTBA), duly 12, 2002. Also, EPA’ received L additional communication from ARTBA urging KPA to grant the petition after the decision of the WU. Supreme Court IMA v. SCAQMD, 541 U.S. 246 (2004). See “ARTBA Petits | Joseph, AR'TPRBA, to DD Dickinson & Ro Day EPA, Apri 2004. These documents are available in Docket LK VA HQ-OALI 2OO4- OOO: In 1994, EPA promulgat miter] rul \ppendi \ t ibpart A of 40 CRK par ppen provia that tate restrictio 1 Ut! ind « nonroad enyines are not preempted unde! 2OY ZAUIDA ind other commentes luring the pemod for not and comment on *2810 this issue. We will r po! Lo the }) tition, and 1! propriate make my change to the regulations to contorn ur response to VR EBA and other commentes i the final rul Wet Quest comment from the public regarding issu related 1 LR TBA petition and how we hould respond Aupust 21, 2008 RESPONSE TO THE PRTETION OF AMERICAN ROAD AND ‘TRANSPORTATION BUILDERS ASSOCIATION TO AMEND REGULATIONS REGARDING ‘THE PREEMPTION OF STATIC STANDARDS REGULATING KMISSIONS PROM NONROAD ENGINES I. Introduction (jn duly 14%, ZOOY the American Koad and Prancportation iiudders Association (ARTBA) petitionc¢d the Ienvironmental Protection Agency (PA) to amend it rules implementing section ZOQGe) of the Clean Air Act (Act)! In particular, ARTA petitioned PA to amend its reyulations and interpretive rule reyardinyg preemption of state and loca] requirement “that Hn pose ji-USE and Operational controls or fleet-wide purchase, sale or use standards ob momnroad Cig iis ~ARTBA beheve: eh Control hould be preempted Petition to Arend Kale Davigols menting Cleun Air Act tics Z2EIC) American Koad and Transportation bevailder ociation CAICITBA) duly 4, 2002. EVA also received an dditional communication from AKITA urpiny EVA to prant trite poe tatseons after the decision of the U. : lpreine (Court in | 1A \ CAQMI), 541] Us 246 (2004). See “AR THA Petition | dooeph, AR TBA, to 1) Dickinson & Ro Doyle, EPA, April 40 4004 Phi documents are available in Docket LK VA-HQ OAK iy] OOD 1499494 MPA promulgated an interpretive rule at ppendix Ato subpart A of 40 CRK part 49.59 ked. KRep. 41405, 940 @Jume 37, 1994). This interpretive rule was amended part of the rule promulpated on December 40, 1997 (62 hK (,/ 4 ) The appendix provide mio Olher thingy Phat state pec lyse tions On the use and operat on of nonmroad Cn ine ure not bea) under (etic 209 sim qt chal Lial re] qj] i ¢ it] we hie 1{ 9] broly ( re-esoulations t ‘ i AyICLA aT GU | ; iLO) I (] ‘ brie ( 1«-€} { Bim | i ¢ ‘ | j | rer r I ‘ yt PLiGsti | s qeqquie ted comment ()] 1 propo ed rude related pars menition nonroad aAinCcG certal proposea elated to precmption of id other requirement: iSS1ON) from) monmroud rece) ) f ral | |2/ petilior both tition { belo Da iw nat requ qd by ie 5 Lamdal We Del ( lHhicient nd need not Clire ment provi i ited" (hdiyre f f rudation writ U) j @ ix f r thas ta pa he Wee Wy CV if crit nd yee ri CONnNCEr!] ii ] (+1 | { 1} il I) J y] Ba cf ee 1 t} : {| | j 1) j rat I controls or flectwide purchase, sale, or use standards for nonroad vehicle: ARTBA argues that IKPA’s determination that ase and operational restrictions on nonroad enyines Were not preempted under section 2ZO9(e), and the € Cirewit’s alfarmation of WPA’s decision, iynored reheviaril taalubory comstruction and legislative history fi oadseo tule that HPA’: later rule regulating new locomotives and new engines used in loco mols ve ia Well as decisions i courts in New fork and Massachusetts concernmy fleet average qmuission standards, as well as one in Texus on use restrictions would have vuided IVA to different conclusions concerning the scope of section ZO9(c) IV. Request for Comments and Comments Keceived on Petition on May 16, 2007, EPA requested comment on REBA's petition as a part of a proposed rule related to control of Emissions from spark-ignition nonroad Cnpine Which also contained certain proposed Chanpes in the repulations related to preemplion of tate and Jocal tandards and other requirement: related to the control ol emi }OoTS! from nonroad Chiches and enpine (27 bed. Rep. 24097, 24%209-10.14 hi’A proposed to add reyulatory lanpuaye to inplement if init tq f tigd) 12 ol Tia ( titi Olidate i Appropriation Act (04 Pub |. No 10% 19% the restrnetions on state standard: ther requirement applicable to certain small spark ii mnroud Ernpvineg and Line added criteria toy IPA: iMderalion ih procecdiny to authorize Calivorniia tandard: other requirements loi MCla Chapyeagit VA also propo ed to t po? Higelion 3 vibsitien from p Ti Gos tO a nev part O74 and to make minor lanpuapye chanyes tor the purposes of btis t! ! bigs ! pel j neiuape lormat MPA is not proposing, to adopt the exphieit chanyes requested by ARTBA in its petition; however, PA will continue to review the arguments raiscd by ARTBA’s petition, as well as all further arguments provided by ARTBA and other commenters during the period for notice and comment on this issue We will respond to the petition, and if appropriate, make any changes to the repulation to conform our response to ARTBA and other commenters to the final rule. We request comment from the public regarding syssues related to ARTBA’s petition and how We} hould re pond MVA received submissions from approximately one dozen Commenters that included comments related to ARTBA’s petition, both supporting and opposing the petition, either in whole or in part. The commenter meluded representatives of states and = Jocalitie environmental OrvaniZalion: manufacturers the locomotive and railroad industry and ARTBA itself Some commenter also addr ced Wwsue that are related to the 3 Lit bra thie poctition but not in the petition itsell V. Response to Petition and Comments on Petition a Summary of Kesponse ACTA pelition raise two eeneral ] Wes Of state and jocal preemption: whether certain Lal repulations on fleetwide Gmission Irom nonroad engines are preempted, and whether state and local restrictions On USE and operation of monroad engine are preempted Repgardinp the first issu We monerally avyree that tandard related to the control of emissions from fleets of nonroad cnpgincs are preempted, to the same extent that emission standards on individual enpines are preempted.!% [ISN 17] However, we do not beleve any chanpe in repulations is mecessary. ‘The current regulations preempt state and local standards rclated to the contre! of emissions from nonroad engines. This general language would include emission standards repulating fleets as well as individual enpines or equipment. Indeed, this) peneral languape comes directly from the statute and is comparable to the general language in section ZOU(a) that the Supreme Court found preempted state and = local fleet standards Or) new motor vehicles. Iingine Manufacturers Assn vo. South Coast (¢MA vo. South Coast), 541 U.S. 246 (2004).“9 [TEN 16] One issue related to the fleet standard issue is the effect of section 209 on state and local authorities’ ability to restmet their own purchasing or contracting decisions (the market participant | We distinguish such restrictions from restrictions on use and operation, which are discussed separately In WMA vo. South Coast, the Supreme Court found thiast ection ZOUGa) of the Clean Air Act preempted se veral fleet rule: enacted by South Coast. The rules restricted the ability of certain public and private fleets to purchase or lease vehicles that did not meet the requirements of the rules, based on thie Cm) ath level of thie vehacl OF whethey they Were alternative fuel vehicles,” which are vehicles designed to run on aullenmnative fuels. ‘The court found that the rules did contain tandards and did not escape preemption merely because they were directed at purchaser: not manufacturers. However, the ourt remanded the cuse to the lower courts to addre certain posi not addressed helow, including “whether some of the hleet Rules (or some applications of them) can be characterized miternal state purchase decisions Cand af so, whether a different standard for preemption apples)” /d at 1764 20a doctrine’). Reparding this issue, we note that the Court of Appeals for the 9th Circuit, in reviewing the remand of EMA vo. South Coast, found that the Clean Air Act) did not preempt state regulations that required the state and its subdivisions to purchase, procure, lease or contract for use of vehicles meeting speemied air pollution criteria. 49% Fed. 8d 1081 (9th Cir. 2007). KPA aprees and beheves that subsections 209(a) and 2OG(c) do not preempt these kinds of achions by a state directed towards the market choices of the state or its subdivisions. Kegarding state and local restrictions on use and operations of nonroad cnpyines and vehicles, we continue to interpret section 209 and 213 as not prohibiting state and local restmetions on the use and operation of nonroad engines. by General Comments JuVA received COMMNECHES from several commenters representing state and Jocal entities urging in general terms that IPA deny ARTBA’s petition (Wisconsin Department of Natural Resources (OAR-2004-0008-0663); Pennsylvania Dept of Havironmental Protection (OAR-2004-Q008 OG7G6): Northeast States for Coordinated Air Use Manayement (NESCAUM) (OAR-2004-000%-064 1): National Association of Clean Air Agencies (NACAA) (OQAR-2004-0008-065 1 )) MPA received detailed comments from the Association of American Railrouds (AAR) (OAR-2004- QOOO8-O0669), discussed below, which includes a statement that AAR is not scekimy to change the preemption provision for locomotives. llectro-Motive Diesel (EMD) (OAR-2004-0008-0687) provided comments stating that they support the comments of AAK and reiterating that preemption of local and state standards are of vital importance to the railroad-Jocomotive industry, owing to the interstate nature of railroad operations. EMD urged EPA to adopt the part 1074 preemption regulations as proposed. Similarly, General Electric Transportation (Gk) (OAR-2004-Q008-0679) states that it supports the proposal regarding preemption with the understanding that IcePA is) not changing the preexisting, preemption provisions. Glo states that “{t}he anterstate nature of [railroad] operation 1s more extensive than any other form of ground transport. For this reason, Congress wanted to ensure uniform national standards.” Discussion As discussed in detail below, although HEPA does agree in part with ARTIA’s interpretation, Icel’A does not beheve it is necessary or appropriate to revise its repulations based on ARTBA’s petition. ‘Therefore, MPA will not be revising its regulations as requested by ARTBA Gin this rulemaking. Regarding the comments from the locomotive-railroad industry commenters, HPA will be finalizing its proposed preemption regulations as they apply to locomotive: ce. Kleetwide Repulations tL ARTBA Petitton In the cover letter to AR'TBA’s petition, ARTBA request Chisel MPA clarify that section ZOO) precingpts “Heetwide purchase, sale or use standards on nonroad vehicles.” In the petition itself, ARTBA refers to “tleetwide averaging, early retirement, and purchase-sale requirements” ARTBA notes that in its locomotive rule, MPA expressly includes “Heet average standards amony the “standards and other requirements” preempted under section 2ZO9(e) ARTBA argucs that since the same phrase 1s used to describe the preemption for other nonroad engines, state and local “fleet average standards” pertaining to other nonroad cnyines should also be preempted. ARTBA also notes that several federal cases have found that California fleet averayve requirements are standards Ww Comments fn response to ARTBA’s request as it apphes to fleet requirements, South Coast Air Quality Manavement District (South Coast) states that to the extent AR'TBA’s request poes to deetwide regulation of use or operation, they are not preempted (see discussion in subsection d. below). South Coast noted that the Circuit Court cases mentioned by ARTBA and an the locomotive context, the standards were applicable to manufacturers, or at least, in the case of the locomotive regulations, were Considered to aficct manufacturers of locomotive engines. South Coast noted HPA’s reasoning that the locomotive mndustry was different from other nonroad industry both in terms of the factual setting of the industry, mecluding the limited number of customers, and pohey concerns unique to locomotives. South Coast also notes that [PA has in the past approved fleetwide requirements On airport pround control equipment Uhicat required — specific numerical reductions from the tleetwide G@missions Revarding fleetwide purchase-sale requirement: South Coast quoted a YOO! KPA statement that standards unde) section ZOD(a) and (¢°) are quantitative timits that are typieally met through modifying or changing the cnpine or equipment ae | i itself, not through controlling how the equipment 1s operated in-use. South Coast noted the decision of the Supreme Court in Angine Manufacturers Ass'n v. South Coast (MMA v. South Coast), 541 U.S. 246 (2004), which found that certain of South Coast fleet purchase requirements were preempted emission standards, but stated that the decision does not mean that all purchase or sale requirements were preempted. In particular, South Coast noted that the Supreme Court did not decide whether a different standard for pre-emption apphes to fleet rules that can be characterized as internal state purchase decisions and that the issue was pending in the Oth Circuit Court of Appeals. South Coast also noted that it was the amicus curiae bnef of the United States rovernment that first raised the “market participant’ issue in the Supreme Court case. South Coast also noted that the Supreme Court decision apphed only to state requirements defined to be standards and the other requirements specified in section 209(a). ‘Therefore, South Coast said that fleet requirements that do not pertain to the emissions Characteristics of the fleet, lke Los Anpeles’s requirement that airport taxicabs be no more than seven years old, which aids the safety and image ot the airport taxicab fleet, would not be preempted. mouth Coast similarly argued that even if some fleet requirements are preempted, for mstance those that require the newest vehicles to be purchased, not all “early retirement” rules would be preempted. south Coast noted that nonroad equipment is often used for very long pernods of time. South Coast suppests that rules that required very old nonroad engines to be retired but did not require new engines 30a to be purchased would not be a preempted standard under the Supreme Court decision New York Department of | Environmental Conservation (NYDEC) (OAR-20040008-0659) state: that ARTBA’s claims that fleet average emissions standards for owners and operators of construction equipment ftleets should be preempted because federal courts have held that fleet average standards for light duty vehicles constitute “standards” under the Clean Air Act is factually incorrect. NYDIEC states that California Low Emission Vehicle hight duty regulations apply to mew motor vehicles, and the term “feet? refers to a manufacturer's model year sales. NYDEC states that this is a far cry from the fleet of engines and vehicles owned or Operated by a construction firm In its comments, ARTBA stated that clarity 1: needed to avoid contheting state regulation ARTBA stated that the decision in #&MA wo. South Coast controls this decision and that if locomotive fleet standards are preempted, so must construction equipment fleet standards. ARTBA stated that there Should be no presumption against preemption in thi: Stluation, because the statute is chear on its face and because there is a long Instory of broad tederal preemption, at deast with regard to locomotives ARPBA also states that the Supreme Court found (hat South Coast's fleet rules conflicted with section 246 of the = Act Which created requirements appheoable to certain motor vehicle tlheet: ART BA acknowledges that section 246 apples only to motor vehicles, but states that this provision underscore; section VOU: CApress preemption of Fleet Rules a: standards under section 209 ARTBA states that it is well settled that state: are completely preempted from regulating “the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances, citing Naprer vo. Atlantic Coast Line, 272 U.S. 605, 611-618 (1926). ARTBA states that MPA handled preemption of locomotive regulations differently than preemption of regulations for other nonroad enyines “Which spring from the same words in the same section of the same statute - and that it is “untenable” that KPA treated locomotives differently from other nonroad cngines, particularly small farm and construction equipment. AR'TBA also states that the legislative history of section 2O9(e) fhe. Repo DingelPs statement reparding state regulation olf locomotive Operations and the House Report's note that section 2O9(e) did not apply to existing nonroad engines| show that state controls should be preempted for the vehicles’ useful lives ARTBA also states that its imterpretation conforms to section LOOC)s preemption for CAA regulated parts during: thear useful life and section 2ZEs(ajycs)’s requirement that HPA regulations apply to vehicle's useful lifes In any event, ARTBA notes that HPA’: locomotive rule expressly ancludes “fleet average standards” among preempted standards, indicating that such standards would also be preempted tor other nonroad enyines Reparding: the market participant exception, ARTBA says that at least where the states would Hipose criminal oor punitive civil penalties, the “market-participant’ exception cannot apply. AR TBA also claims that preemption under the Supremacy Clause need not include a market-participant exception ARTBA also argues that any nonroad jor prote othe ol ai t é i4 v\ pyran ! byeal , | | iT ‘ a ' ' i . 4 thavcat I requirement pollution “ynandatory fleet averaye tandards Wat not premised on the view that a fleet average standard hould be considered a standard for locomotives but not other nonronad engines or CQtiiprmenst lt wa bistead premaused on the view that the unique characteristics associated with locomotives meant that a fleet averaye standard appleable to in-use locomotive flects should categorically be preempted soon standard related to the control of emissions from new locomotive Avain, however, with regard to the issue of “fleet tandard: there as litthe difference repardiny KVA’s position orepardingy initial preemption of | s uch tandards for locomotives as compared to othe: nonroad envines, and any differences relating to Calhformia’s ability to receive authorization to enuct and enforce such standards on “new locomotive result from expheit differences in the statute and the nique Circumstances and definition of “new? promulpvated lor locomotive 2 ‘Phe Market Participant Doctrine KReparding whether a state o1 local restmetion this applic only to the state or localbity asa market participsamit is precanipate d. South Coast observed that the UWS.) vovernment antroduced this issue in the IC-MA vo. South Coast case in its amicus curtae brict, it priayre 203.“ [JIN vAn) Pri thacat bora l the US poverhnment noted that “the State of California may be cntithed to place restrictions on the typo: of new pouabodae vehicle thical thie State and its mistrumentalties purchase for their own use, citiny feiuclediony A Cronstructtor Lracde y Council uf Metro fuist. ow. Associated Butlders & Contractors, b07 US. 21%, 241-232 (1993) (In the absence of any express or imphed indication by Congress that a State may not manage its own property when it pursucs its purely propmctlary mberests, and where analogous private conduct would be permitted, this Court wall notinfer such a restriction.’ ) The Supreme Court's decision an that case expheitly held open the question of whether some portion of South Coast's fleet rules “can be characterized as internal state purehase decisions (and, af so, whether a different standard for pre- cmiption apphes), MMA vu. South Coast, 124 5. Ct. at 1764, and remanded the case to the lower courts to address this issue. The Court of Appeals for the Sth Circuit issucd an Opmion on this issue since the close of the comment perod an this rulemaking. HMA vo. South Coast, 49% ff. Sd 1051 (9th Cir. 2007). ‘That court found that “the Clean Air Aet docs not preempt South Coasts fleet rules as they direct the procurement behavior of state and local yovernment entities” /d., at 10389. The court referred to several Supreme Court and Court of Appeals cases that diseuss the “market participant doctrine,” which “distinguishes between a state’s role as a reyulator, on the ene hand, and its role as a market participant, on the other. Actions taken by a state or its subdivision as a market participant are ponerally protected from federal preemption.” /d_, at 1040. Phe Court of Appeals found that section 2O9(a) docs not preempt “provisions directing state and local povernmental entities to purchase, procure, lease or Contract for use of vehicles meeting specified air pollution critena.’ /d., at 1046. ‘The court noted that nothing an the statute or leyislative history midieated that Congress intended preemption under ection 2ZO9%Ga) to apply to state proprietary action. ld at 10434 VA does not beheve it is necessary to specify in detail all of the boundaries of preemption in every possible situation that may present itself. We beheve the courts are well Cquipped to make such case-by case determinations. However, we beheve that in the carcumstances presented by the IEMA case, the determinations of the Court of Appeals appear reasonable and EPA aprees that subsections ZO9(a) and 209(e¢) do not preempt actions by a state directed towards the market choices of the state or it: Ubdivisions ARTBA states that the market participant doctrine should not apply to provisions where the state would impose criminal or punitive civil penne tne The Court of Appeals rejected tha: aryument, stating “we do not see how action by a tate or local povernment that is proprmctary when cnlorced bby (otic? mechanism Joses tS propmetary character when enforced by some other mechanism.” ld at 104% EPA understands ARTBA’s argument as it would apply to private entities, but beheves the question is more complex regarding state and local entities, EPA takes no position on this issue and beheves the courts would be the best arbiter of this do Restrictions on Use and Operation L ARTA Petition AR TBA’s initial petition requesting revision to MVA's nonroad preemption regulations raised several AOE issues that ARTBA beheves should Jead HPA to change ats interpretation that section 209 does not preempt state and local regulations of use and Operation — of nonroad vehicles, cnyanes and equipment. ARTBA noted that the Tanpuagye an section 2ZO9%(e), which refers to “any standard or other requirement relating to the control of G@muissions” is broader than the reference to “any standard relating to the control of emissions” in section 2ZOU(a), and that section ZO9(d) on its face apphes only to state power to control and restrict the use, Operation or movement of motor vehicles. ARTBA notes the decision of the Court of Appeals upholding PA's interpretation in MMA vo. LPA, but ARTBA beheved that the statute and legislative history resolves any cmibiywaities and compecls its interpretation, 1. Section 21°3(d) ARTBA states that since section ZOO(d) refer: only to motor vehicles, the reference to section 209 in sectuon 28d) does not apply section YOU (d) to nonroad engines. ARTBA also says that to the extent that section 216(d) does import state authority over m-use nonroad vehicles, it would only do so for new nonroad veloieles, not non-new nonroad vehicles, because section 214 refers only to regulation of new nonroad engines. ARTBA states that it would be Wopireal to allow states to regulate use only of new nonroad enpines, piven ELPA’s definition of new, under which nonroad engines cease to be new when they leave the showroom floor. AKRTBA also states that the legislative history provades the simplest meaning for harmony within the statute: ARBA notes that the “subject to 209 language on section 2IVG(d) and “any standard or Ala other requirement” language in section 2O9(e) were both an the pre-conference House of Representatives ball. ‘The 'ouse bill preempted only state and local standards and other requirements for new nonroad engines and directed HVA to issue standards for such new nonroad engines. AR'TBA notes the language in House Keport 101-490, quoted above, indicating that the preemption did not apply to existing nonroad vehicles and engines. ARTBA states that the language in section 215(d) was meant to show that the preemption apphes to those new nonroad engine standards that KPA issues under section 213. ARTBA also notes that the language in the final Clean Air Act Amendments did not change the language in 213(d), but it did change the language in section 2OG(e) to address both new and non-new Cheyne ARTBA also notes that the statements of mdividuals Senators, like those of Senators Baucus and Chaffee andicating ther view that states retammed the authority to regulate in-use operational requirements, are oan ounrehable puide — to conpressional intent Yo “Other Requirements” and “Pake Such Actions’ Section POUD(E)EZ)CA)'s bnplied preemplion Deanngruncapre refers lo “standards ana other requirements relating to the control of emuassions.” Section 2O09(e)(2)(B)'s provision allowing states to adopt and enforce authorized Cabhfornia standards refer to “standards relating to control of emissions from nonroad vehicles or engines ... and ... such other actions as are referred to in subparagraph (A) of this paragraph respecting such vehicles or engines if () 4va such standards and implementation and enforcement are identical, for the period cone rocd. to” the (Coadiforiia standard; authorized bry the Administrator under subparagraph (A) ARTBA states that the Janguage in section 209 3(2)(B) should not be read to narrow the scope ot section 2OU(e)(2Z)(A) because the different langue should be read to mirror the language an section POU IZA) and was probably used to avoid ambiguity reparding whether states other than Cahforma could adopt “other requirements’ othe than California requirements “i $ Locomotive Preemption ARTBA also noted thisat state have long been preempted from regulating “the 9 desipn the construction and the maternal of every part of the locomotive. AITBA says that section LODE) lerpeas lates gioan area where states historically have not exercised police power ARTBA claims that there might have been some plans in Calhformia for repulation of nonroad enpines, but that mo such repulation had occurred by 1990. Instead, ARTBA slates that, at least with regard to locomotives, there has been a broad hostory of jtederal preemption ARTBA beheve: thicat thre Presttiniplron avainst preemption therefore should not apply in thi brastialice it. Comment: South Coast states that ARTBA is seeking an Huntly that is unavailable for any other source Rhepvulation of the use and operation of stationary SOUFCOCS and motor vehicles is undis puted hptate and local repulation of the use and operation of monrond eneines is essential to meet national ambient an quality standards. South Coast states that if these engines cannot be repulated adequately, other sources will need to be even more stringently revulated. ARTBA articulated no pohey reason why nonroad sources should be treated differently than other sources in this respect South Coast claims that the primary purpose of the preemption Provisions Is to protect manufacturers from having to design different types of vehicles for each state or local authority. According to South Coast, the Supreme Court's decision in EMA vo. South Coast confirmed that the preemption provisions went to the design features of the engine. See EMA v. South Coast, 641 Us. 246, v4 S. Ct, 1756, 1761. Nothing in the Jepislative history indicates that the purpose behind nonroad preemption was different than that for motor vehicle preemption. Indeed the legislative history indicates that use and operation restrictions were not intended to be preempted, Gouth Coast notes that regulations on use and operation are not standards ander section ZOY, and that ARTBA does not argue that they are standards South Coast further states that the use of the word “requirements” im section 2OU%(e) does not dictate that any regulation affecting Gmissions is necessarily preempted According to South Coast, ARTBA enores (he principle of statutory interpretation Christ like words used ain different parts of the statute should be treated as having the same meaning. The words “require” and “requirements” in section 2O9(a) and (e) refer to certifications, dspections and other administrative requirements related to emission levels, not to restrictions On use and operation In 1994, KPA read the word “requirements im section 44a ZVO9(E) to apply to the same types of requirements as in sections ZOO(a) and (c), and that imterpretation was upheld as reasonable by the Court of Appead: Moreover, South Coast notes that the language in ection 2O9(e)(2)0B), allowing states other than Cahtornia to promulgate standards and “take such other actions as are referred to in subparagraph (A) il “such standards and mnplementation and ehforcement are identical.’ The SCOPe Ol section 2OU(E)(2)08) would need to be the same as that im section ZOO(Ee(2Z)(A), as the state provisions must be identical to California provisions and becauss subparagraph (B) refers back directly to “actions as are referred to in subparagraph (A) Theretore, the reference to “standards and implementation and ehforcement must have been ra reference back to the “standards and other requirements in: uUbparagraph (A\) south Coast states that the absence of a clear statement that) section VOU) does not preemyprt restrictions On use and operation of nonroad engine: can be explaimed by the fact that, unlike in 1967, When section 2OU(a)(b>) and (ad) was added and Conpress wanted to be exploit Chat the language in ubsection (a) did not preempt use and operation restrictions hy L990 it owas clear (hrough admunistrative and jyudioial precedent, that use and Operation restrictions were not preempted, so no { x pla il lanvuare Wa S NnNecessaFfy South Coast also notes that the lepishative history supports the interpretation that) use and operational restrictions were not preempted. South Coast notes the statements of Senators Baucus and Chafee that the preemption does not apply to operational restmctions. South Coast says that non of the statements cited by ARPBA supports the argument that use or Operational restrictions are intended to be preempted. hus, the only lepushiative history Utrsat speaks to this PpoImmt supports thie interpretation that use and Operational restrmction: are not preempted South Coast also states that there as no long history of preemption regarding regulation of use ot locomotives, only locomotive design kor example, state repulation on the use of whistles has been held to not be preempted. EPA’s own regulations base the scope of preemption on the effect of state and local regulation on locomotive design. South Coast notes EPA referred to “real and concrete eltects on the design and manufacture of new locomotives and new locomotive engines,” not trivial effects. KPA's yustifeation for the broader preeniption oon regulation of locomotives still tied such preemption to effects on the manutacturer, because “state requirements on railroads are much more likely to effect changes in how manufacturers and remanulacturers design new Jocomotives and new locomotive engines than would similar requirements on end users otf other mobile sources. — South Coast states that vehacle and ecnyine design is unatbected by use regulations South Coast argues that preemption should be narrowly construed because the exeremse of local police power serves the overriding purpose of the CAA, to clean the air, citing EPA's 1994 rule and Allway Tanti vu. City of Neto York, 8310 FF. Supp. 1120 tS 1.N. ¥ ->, affa 466 F. 2d 624 (2d Cir N72). South Coast also notes that even if section 2O9 can be seen In isolation as expressing ao principle am favor of national repulation, use and operational controls are doa Phe Calhtornia Air Resources Board (CARB) noted that more than ten years after EPA's determination that state and local nonroad use restrictions are not within the scope of preemption Wwnder section 2U(e), and the 4. Circuit’s affirmation in HMA v. BPA, ARTBA 1s requesting reconsideration of that determination, claiming that all nonroad engines, including those in lawnmowers and string trimmers, be treated similarly — to locomotive which CARB claims 1s not Supported by Lia { (iT log CARB noted the DC. Cireuit’s conclusion that MPA was reasonable in determining that the use of the word “requirements” should have the same meaning as similar uses of the word in section 209, which refer to enforcement provisions that cannot be used as conditions precedent to sale, registration oO tithing of a vehicle. The Court further found plausible KPA Interpretation that section 2138(d), read with section Y2O9(d), limited the scope OL preemption for nonroad engines as section 20C9(d) on its own Iimits the scope of preemption for motor vehicles. CARB also noted the Court’s favorable language regarding WVA rehance on the contemporaneous statements of Senators Baucus and Chatee regarding the continued ability of the states to reyulate the use of nonroad vehicle and KPA’s view that the inherently local nature of use restrmctions would conclude against requiring every other state to follow California’s lead on this issue CARB states that while the Court was not entirely satished with EPA’: Interpretation = of ections 2ZOO(e) and 218(d), the Court found HPA’s explanation much more persuasive that MMA's brite Ppopre tation DUv.A CARB notes that, regarding the presumption against preemption, the Supreme Court has recognized that preemption Is a question of Congressional intent and that federal law will only preempt state law when Congress has expressly so declared or when it may reasonably be inferred by Congress's actions to totally occupy the field or when actual conflict would exist between state and federal law. According to CARB, courts have held that where exercise of the local police power serves the purpose of the federal Act, the preemptive effect of that Act should be narrowly construed. CARB states that the preemption issue here is narrow: whether state and local in-use operational controls, which have historically been within the purview of local government, are preempted. Prior to 1990, there was no history of federal preemption in this area. Most districts in California have long required operators of nonroad internal combustion engines to have permits for portable engines Permitting requirements typically include, among other’ things, in-use operational controls CARB states that AR'TBA is trying to reargue an issue that was already decided in EMA vu. EPA, 1.c. the reasonableness of IKPA’s defining new nonroad engine consistently with the definition of new motor vehicle in section 216 of the Act. CARB states that the DC. Circuit already rejected ARTBA’s claim that “new nonroad engine” must refer to all engines built alter the 1990 enactment of the Clean Air Act Amendments. CARB claims that a more plausible reading of sections 2O9(e) and 213(d) is that EPA must be copnizant when adopting standards under section 2138(a) that it not adopt in-use operational control pila requirements, which Congress kept in the hands of states pursuant to section 209(d). CARB agrees that Congress could not have intended California to establish in-use operational controls for the nation. Indeed, CARB has not generally even established such requirements in Califormia, because such requirements are best handled locally to address the specilic requirements of the different air basins within the state. CARB states that the 1998 locomotive rule should have no bearing on EPA's interpretation regarding in-use operational controls. In arguing that KPA has fashioned a broader preemption for locomotives than for other nonroad engines, ARTBA tries to bootstrap the unique regulatory Iistory of railroads to all nonroad engines. But even ARTBA acknowledges that only locomotives have a _ long history of preemption and that Congress distinguished regulation of new locomotives from other nonroad engines under the Act. [PA’s locomotive rule considered and reasonably explained the special circumstances for providing a_ broader precianption for locomotives compared to other nonroad engines, including the special relationship between railroads and engine manufacturers, the periodic remanufacturing and long total hfe = of locomotive enyines, the environmental benefits of federal regulation, and the history federal preemption of railroads and significant potential economic burdens that could be placed on the railroad industry by state and local regulation of locomotive engines. OPEIT commented that it supported ARTBA’s petition calling on EPA to clarify the pre-emption of state and local requirements that impose in-use and OZA operational controls on nonroad engines. OPEI states that there is currently a_ proliferation of illegal emission-related use bans and purchase restrictions apphcable to blowers and other outdoor power equipment. OPET states that EPA should finalize regulations stating that EPA wall not approve state implementation plans restricting the sale or use of KkPA-certified products. OPEL notes that section 200(e) refers to “any standard or other requirement.” It notes that technology-forcing requirements imposed on the purchaser or user of equipment is a preempted “standard,” citing to HMA v. South Coast, and providing the following quote from the case: “a standard is a standard even when not enforced through a manufacturer-directed regulation.” OPE] also notes the court’s finding that if one state can enact “such rules” so can any other, “and the end result would undo Congress’s carefully calibrated regulatory scheme.” OPET also discussed the opinion of the court in EMA v. Huston, which rejected Texas's attempt to regulate use of certain nonroad engines In its comments following the NPRM, ARTBA states that the language of section 209(e), referring to preemption of “any [state or local] standard or other requirement relating to the control of emissions” from new construction equipment under 176 horsepower, indicated expansive preemption. ARTBA notes the reference to the implied preemption of state and local “standards and other requirements” in section 209(e)(2). ARTBA states that in-use controls clearly fall within this language. ARTBA distinguishes the language from section 209(a-d), which references state and local standards and various specified requirements, and includes an express savings clause that retains state authority over the use, operation and movement of motor vehicles. ARTBA notes the lack of an express savings clause for state authority over in-use nonroad vehicles. ARTBA notes that only section 209(e) apples to nonroad engines and vehicles, and that the rest of section 209 is inapposite. ARTBA claims the language of the statute is plain but states that to the extent legislative history 1s considered, the Hlouse Report is the appropriate history. ARTBA states that the court upheld HPA’s interpretive rule primarily because of IMPA’s definition of “new,” section 209(e) inconsistent use of “standards or other requirement,” and EPA's plausible interpretation of section 213(d), in the absence of other satisfactory interpretation, to read section 209(d) to include regulations on the use of nonroad engines. ARTBA notes that. while EPA defined “new” to mean “showroom new,” for the purposes of most nonroad engines, harmonizing that definition with the definition of “new” for motor vehicles, it defined “new” differently for locomotives. AR’TBA claims that “new” for locomotives extends back to 1972 and out to 1.33 times an engine's hfe.** [I*N21] ARTBA states that the HMA panel thought it significant, and supportive of a narrow reading of requirements, that section 209(e)(2)(1B) does not 2s To avoid confusion, EPA notes that this is not the definition of “new” for locomotives. That definition can be found at 40 CFR § 92.2. The reference by ARTBA is to the preemption repulation at 40 CFR 85.1603¢c), which determines that certain standards on in-use locomotives will be preempted as standards relating to the control of emissions from new locomotives. That is a different issue from the definition of new locomotive Aa authorize states other than California to promulgate “other requirements.” ARTBA states that “take such other action? is clearly a double for “adopt...other requirements.” ARTBA also notes the HMA court’s acceptance of EPA’s argument that the difference between “standards and implementation = and enforcement” in section 209(e)(2)(13)G) and “standards and other requirements” in section 209(e)(2)(A) allows a narrow interpretation of “other requirements.” ARTBA, however, states that this language does not limit section 209(e)(1)’s scope and that the implementation-and-enforcement language appears section 209(e)(2)(B)Q)-Gi), which concerns leadtime restrictions on states’ adopting “standards” not other requirements, but does not limit section 209(e)’s broader preemption of other requirements. ARTBA also notes that the language of the Bond amendment (Pub.L. 108199, section 428) tracks the “standards or other requirements” language, not “standards and implementation and enforcement” language. ARTBA notes the court's deference to HPA’s Interpretation that section 2138(d)’s” reference to section 209 incorporates section 209(d)’s savings clause into nonroad preemption. ARTBA states that the court failed to consider that, by its terms, section 218(d) apphes only to EPA’s new vehicle standards under section 213(a). Thus, section 209(d) could save states’ authority to impose in-use restrictions on new nonroad vehicles, which makes no sense. ‘his shows that MPA’s interpretation is even more unsatisfactory than held in HMA v. HPA. Because, according to ARTBA, the court held that EPA’s Interpretation Can prevail because if neither party offers an acceptable interpretation, ARTBA states 95a that the legislative history explains section 2138(d)’s connection to section 2O9(e). According to AR'TBA, section 213(d) linked new vehicles “subject to regulation under this Act” but not then-existing Q.c. unregulated) nonroad vehicles to section 209(e)’s preemption and because it did not amend section Z13(d), the Conference Committee did not change section 213(d)’s simple meaning. According to ARTBA, any ambiguity in the section ZO9(e)-213(a) link concerns post-enactment, pre-regulation vehicles, but that minor temporal ambiguity cannot empower EPA to re-write the unambiguous aspects of the lnk (namely that CAA-regulated nonroad vehicles are subject to section 209(e)’s preemption). ARTBA also states that nonroad vehicles include the vehicle’s fuel system. ARTBA also claims that EPA allows California to mandate a retrofit of a nonroad engine immediately after the engine is no longer new, which [PA recognized conflicted with Congressional intent, and should therefore be rejected. Also, according to ARTBA, the Supreme Court’s decision in its fleet litigation, because it is not limited to manufacturers, includes those imposed on in-use vehicles. ARTBA notes that the House conferees understood that section 209(e) reached the operation of nonroad vehicles, citing to Rep. Dingell’s remark that “we balanced the need to control emissions from new locomotives ayaimst our belief that State efforts to regulate locomotive emissions or operations would impose an unconstitutional burden on interstate commerce.” According to ARTBA, Congress long ago abrogated the Allway TVaxt decision. The in-use retrofit “requirements” that ARTBA claims are preempted by section 209(c) unquestionably fall 56a within the “any...other requirements” preempted by section 2Z09(e) ARTBA also noted the decision of the court in IMA v. Huston, 190 F. Supp. 922 (W.D. Tex. 2001), vacated as moot, in which the court concluded that “the legislative history and plain languave of section 20O4%(e) are clearly inconsistent with IPA’s offered interpretation.” ARTBA also noted IPA’s response to the decision of the court, which [SPA referred to as an “inappropriate collateral attack on [lePA Is] regulations.” 66 Fed. Reg. 57,223 (2001) AAR commented that it believes that, in’ the context of MMA v. EPA, EPA can have broader preemption rules for locomotives than it does for other nonroad engines. AAR notes that the court in HMA v. EBHPA upheld EPA’s interpretation that “requirements” refers to certification, inspection and approval requirements and does not encompass use restrictions. AAR states that IPA can reach different conclusions for different engines as to what constitutes an engine standard or a use restriction. AAR states that what is preempted under section 209 depends on factual circumstances and the determination needs to be made on a case-by-case basis. “The broad regulatory langvuayve on preemption of state regulation of locomotives 1s consistent with EMA vo. EPA, Furthermore, the fact that different language is used to describe preemption of state regulation of locomotives, as opposed to other nonroad engines, 18 appropriate because of the different standards applicable to locomotives. AAK states that indeed, when issuing the current preemption regulation for locomotives, KPA explained that ‘because of compelling factual and oy are | policy considerations rclating to regulation 9 of locomotives as compared to regulation of motor the implementation of these |[preemption} principles vehicles and other nonroad vehicles and engines, would be expected to differ to a significant degree.’ MPA pointed to the different regulatory requirements for locomotives, the unusual marketplace for locomotives, and the railroads’ unique operating environment as the basis for the preemption rule.” AAR noted EPA’s discussion of differences such as: 1) the remanufacturing requirements for locomotives, and the fact that such remanufactured engines would be considered new engines under the regulations, which has an effect on preemption of retrohit requirements because a retrolit requirement that would have little or no cffect on the ongpinal manufacture of a locomotive could have a significant effect on the remanufacture of that locomotive; 2) the small marketplace for locomotives, with the vast majority of new locomotive sales taking place between seven Class 1] railroads and two manufacturers, which results inp manufacturers needing to be much more responsive to changes in design requested by customers, which means that state requirements on railroads are much more likely to affect the design of new locomotives that) would similar requirements on end users of other mobile sources; 3) the interstate nature of railroad operations, which provides compelling policy reasons that) support uniform, national regulation © of locomotive emissions, as indicated by the lepislative history of section 2O9(e), which singles out state efforts te regulate locomotive Cmissions as imposing burdens on interstate commerce, but not making similar statements regarding state regulation of any Sd « other category of nonroad vehicles. AAR also notes KPA’s mention of possible unduc burdens on interstate Commerce under the Commerce Clause of the Constitution, and AAK notes a recent federal court decision holding that the ICC Termination Act preempted state and local emissions regulations on locomotives. AAI v. South Coast AQMD, No. O06 01416 (C.D. Cal April 30, 2007) wi. Lrseussron l. Overview «PA continues to believe that Conyress did not intend to preempt state and Jocal regulation of use and operation of nonroad engines under section 209(e) of the CAA. ARTBA points to no language in the statute or in the legislative history showing any specific intent to preempt state and local regulation of use and operation of nonroad engines. Whiie the statutory language of the CAA is not altogetber cleat on the issue, the textual arguments rehed upon by MPA in its prior rulemaking continue to be more persuasive than ARTBA’s) arguments, and the legislative history contains clear language indicating a desire to allow state and localities to continue to regulate use and operation of nonroad engines. Because section 2O09(e) as it was promulyated was very different from the language in either the Senate or the House of Representatives, and there is little levislative history specific to this provision in the final conference report, there 1s not much legislative history of this provision. But the statements of two Senators during the final debate on the bill indicate clearly their understanding that states and locahtie; were not preempted from regulating the use and operation of nonroad engines. Sen. Baucus, in hi: ova explanation of the final bill, styled as a Clean Air Conference Report, stated: States also fully retain existing authority to regulate emissions from all types of existing or in-use nonroad engines or vehicles” by specifying fuel quality specifications, operational modes or characteristics of measures that limit the use of nonroad enpines or equipment. 136 Cong. Rec. 8516976 (October 27, 1990) Similarly, Sen. Chatee stated: States can continue to require existing and in-use nonroad engines to reduce emissions by setting fuel requirements, operational restrictions or limits on the use of such equipment 136 Cong. Rec. 517237 (October 26, 1990) Indeed, thouph the statutory languape in the Ilouse of Representatives’ bill was not adopted, it is worth noting that even the House of Representatives’ bill indicated no intention to preempt states and localities from regulating the use and operation of nonroad engvines and vehicle: section 209 of the Act is amended to provide that no State or political subdivision shall adopt or enforce standards relating to the control of emissions from new nonroad vehicles subject to regulation under this Act. This preemption does not apply to existing nonroad vehicles or engines. Hi.R. Rep. No. 490, 101st. Cong. at 310 (1990) OUa Indeed, piven that this language echoes the language of section 2O9{a), which clearly did not preempt use restrictions on existing motor vehicles,“4 [IEN22] the language indicates no intent to preempt such use restrictions This intention is reasonable, given the locally based nature of use and operational restrictions. A: the court in HMA vo. EPA noted, “the KPA maintains that because in-use restrictions are inherently local In character, in that their appropriateness depends on local conditions, it would not make sense for Congress to require all states?’ to follow Cahfornia’: lead on this issue. This, too, tends to support the reasonableness of the IcPA’s interpretation.” &% F.2d at 1094 n. 58 Congress made this clear in 1967, with respect to motor vehicles. “Specific language indicating the committee's position on the mghts of the States to control the movement, operation and use of hceensed or repistered vehicles is included. This language 1s of particular importance. While there has been a vreat deal of concern expressed regarding control of new vehicles httle attention has been paid to control of used vehicles, either their emissions or. the use... These are areas in which the State and local rovernment can be most clfective.” S. Rep. No. 408 at 34 section ZOO d), protecting the rights of state to repulate use and operation of motor vehicles, was added specifically Lo ensure that the language of section 2ZOU(a) wa: not interpreted to apply to use restmetions, which Congre understood to be best left to state and localities. See S. Kep. No th Ps nak : 103,90 Cony. 1 Sess. at 34 (1967), quoted above at pp. 2-3 Ola As this language indicates, states and localities have traditionally not been preempted = from regulating the use and operation of mobile sources ARTBA produces no evidence that, for the vast majority of mobile sources, there is any history of preemption of such regulation. On the contrary, as CARB notes, local districts long regulated the use of nonroad engines, particularly portable engines. Indeed, with regard to motor vehicles, the Clean Au Act actually encourages KPA to provide information to help state and local entities regulate their use for the purpose of reducing emissions. See Clean Air Act section 1O8(f), 42 U.S.C. § 7408(f). ARTBA’s sole evidence of prior history of state and local preemption comes from the specific circumstances of locomotives, one of numerous categories of nonroad engines. There is little question that there is a long history of preemption of state regulation of locomotive engine design, construction and material, see Napier v. Atlantic Coast Line, 272 U.S. 605 (1926).229 [FF N23] IPA and Congress have indeed noted specific concerns regarding state and local regulation of locomotives and IPA has treated state and local regulation of locomotives as a special case. However, the fact that one category of nonroad engines, representing a very small percentape of the population of nonroad engines, has been traditionally protected from state and local regulation is no reason to impart such protection on the vast number of nonroad engines that have not traditionally been subject to such protection Though even with regard to locomotives, some commenters argue that there is no long history of preemption of state regulation of use and operation 62a 2. Statutory Language and Legislative History a. Definition of “new ARTBA’s arguments regarding the meaning of section 209(e) and section 213(d) are not convincing. Mirst, ARTBA’s argument rehes on a definition of “new nonroad engine” that is at odds with the structure of title Il of the Act and was rejected by KPA in its initial rule: a decision that was upheld by the court in HMA v. HPA, 88 IT. 8d at 1084-1087. When EPA defined the term “new nonroad engine’ in its initial nonroad engine rule in 1994, KPA incorporated the statutory definition of “new motor vehicle” and “new motor vehicle engine” in section 216 of the Act, which is the “showroom new” that ARTBA now criticizes. IXPA’s definition was expheitly challenged in the MMA v. EPA case and was explicitly upheld. Jd. ARTBA does not explain its arguments as to why MPA’s definition of “new” is contrary to the statute or unreasonable, or why its definition would make more sense in the context of Title Il. ARTTBA does mention that EPA used a different definition of “new” for locomotives, but does not explain why _ that difference, which is discussed elsewhere and is based on the specific circumstances of remanufactured locomotives, rendered EPA’s reasoned definition of “new for all other nonroad engines unreasonable. ARTBA provides no argument that KPA’ definition of “new” as it was promulgated for all other nonroad engines, based on the definition of “new motor vehicle,” was unreasonable or that I PA’s decision to include remanufactured locomotive engines as “new” engines until they are reintroduced into commerce, based on the particular O3a remanufacturing practices in the — locomotive industry, was unreasonable. Nor is it unreasonable for MPA to take into account separate circumstances in defining “new” differently for locomotives than for other nonroad cnyines, cspecially considering that the term “new locomotive” is used distinctly from other new nonroad engines in both sections 209 and 213 Indeed, ait is ARTBA’s proffered definition of “new” that would be inconsistent with the intent of the statute. As discussed below, section 213d) of the Act incorporates the enforcement and comphance provisions of ‘Title I] into the standards for nonroad engines. ‘hese provisions were written initially in the context of standards on new motor vehicles and new motor vehicle engines, defined as “showroom new. The comphance and cnforcement provisions are venerally geared towards manufacturers, contermmg on manufacturer requirements to have their engines certified prior to introduction into commerce, tested at the assembly line, and subjected to warranty. [Even the in-use testing and recall requirements are geared towards the manufacturer, not the user. Thus, the general complhance and enforcement regime in title Tl, which was statutorily expanded to apply to IXPA’s emission standards for nonroad engines, is geared towards censuring comphance by manufacturers, generally at, or pnor to, the point of sale. The few enforcement provisions vearcd towards users are not restricted to “new” engines or vehicles, and deal more with tampering with manufacturer controls, rather than requiring specific compliance actions by owners and operators Thus, the definition of “new” im tithe Il, which relates to introduction into commerce rather than the date Oda an engine was built, is consistent with the comphance provisions in title IL. ARTBA’s proffered definition of “new,” which is based on the definition of “new” in title I of the Act and makes all covered engines “new’ — from installation to disposal, is more suitable for a regime that focuses enforcement and compliance on the owner or operator of the engine, as title | does, not on the manufacturer. Thus, it is not suitable for the regime required by Congress for nonroad engines. In addition, section 2138(a) incorporates the idea of leadtime into KPA’s standard-setting. However, the definition of “new” proffered by ARTBA would define all engines installed after the rule is finalized to be considered new, which would require them to meet the standards. This would appear to be inconsistent with the idea of leadtime otherwise intended in section 213, because manufacturers would have no leadtime to meet standards apphecable to engines manufactured directly following the promulgation of the rule Kiven with regard to the definition of “new” for locomotives and locomotive engines, ARTBA overstates the actual differences between the definition of “new locomotive” and the definition of “new nonroad engine.” As with other nonroad enpines, a locomotive that has been introduced into commerce, or reintroduced into commerce following remanufacture, 1S not a new locomotive. It is only during the pemod of remanufacture, when = a locomotive is not in service, that a locomotive again becomes new. Thus, even this slight difference in definition, which as discussed elsewhere © is necessitated by the pecullar circumstances. for locomotives, still incorporates the gencral intention Oo0a of title II by holding the definition of new to the time or times when an engine jis 1n not in actual service, during which time the engine ts being manufactured or remanufactured. ARTBA also imphes that EPA’s definition of new allows California to mandate retrofit requirements immediately after a nonroad engine ceases’ being new, which would nullify the preemption. This argument was raised and expressly rejected in KMA v. EPA The court referred to a previous’ decision regarding the ability of states to regulate motor vehicles directly after leaving the showroom, given the statutory definition of “new motor vehicle.” In that case, Allway Taxt v. City of New York, 340 F. Supp. 1120 (S.D.N_Y.), affd, 468 I. 2d 624 (2d Cir. 1972), the court found that states could not regulate new motor vehicles as soon as they left the showroom, despite the explheit definition of new motor vehicle that limited preemption to showroom- new motor vehicles. Rather, state emission controls must be sufhiciently delayed after orginal sale to avoid burdening the manufacturer.26 [F-N24] See the discussion in MMA vu. FPA, 88 F. 3d at 1083 As the court in HMA v. KPA noted: The PA correctly responds that if , then the statutory definition of ‘new motor vehicle’ [Petitioners arguments] were so ? “We do not say that a state or locality is free to impose its own emission control standards the moment after a new car is bought and registered. ‘That would be an_ obvious circumvention of the Clean Air Act and would deteat the congressional purpose of preventing obstruction to interstate commerce.” Allway Taxt, 340 F. Supp. at 1124 66a would render § 209(a) a ‘nullity’. Not only has this not happened — the preemption scheme for motor vehicles has been working for almost thirty years — but the statute cannot be said to speak ... against the EPA’s definition, when Congress, operating under almost identical statutory language in the motor vehicle preemption regime, expressly used a virtually identical definition of ‘new.’ The Allway Vaxt interpretation, postponing state regulation so that the burden. of comphance will not fall on the manufacturer, has prevented the definition of ‘new motor vehicle’ from nullifying the motor vehicle preemption regime. [Petitioners have] offered no reason to suspect an essentially identical definition of ‘new nonroad engine’ will nullify the nonroad preemption scheme either. IEMA v. EPA, 88 F. 3d at 1086. To the extent ARTBA is stating that IPA’s definition of “new” allows California to mandate a retrofit immediately after the engine is no longer new, section 209(ce)(2) clearly allows California to regulate certain categones of nonroad engines, both new and used, pursuant to ELPA authorization. The ability of California to regulate those engines not covered under section 209(e)(1) pursuant to EPA authorization is expheit in the statute and is not dependent on any definition of “new.” For those engines that are covered by section 209(e)Q1), the Allway Taxi restrictions, endorsed by EPA and the O7a court in MA v. HPA, would prevent such immediate retrofits.27 [FN25] Thus, ARTBA’s argument regarding the meaning of sections 209(e) and 213(d) are faulty at the outset as they rely on an inappropriate definition of “new.” As the next section shows, there are other serious problems with AR'TBA’s interpretation.2® [F-N26] a AR'PBA makes a curious argument that section ZOU(c), Which was added in 1977, overturned Allway Taxt. This httle used provision prevents states from requiring certification or approval for any uspect of a part that has been subject to the voluntary certification provisions in section 207({a)(2). “This section provides that if a Federal part certification program 1s established under [section 207(a)(2)], then any part certified under the Federal program would not have to be recertified under any State or local program.” H. Rep. No. 94-1175, at 18 The regulations implementing the section 207(a)(2) certification program are located at 40 CFR 85.2112-2122. This provision has never, in any legislative history or any subsequent Case or MPA determination, been found to have any effect on Allway JVaxt. Indeed, Allway Vaxi is cited favorably in HMA v. FPA, The Allway Taxt case dealt with regulations on. vehicles, particularly directly towards owners or operators, not on particular parts or aspects of parts. In any case, this issue is of littke concern here because ARTBA’s concerns deals with restrictions on use, which would not affect parts, or refer to the “aspect” of any parts, but only the use of the vehicle. ARTBA’s interpretation also has the problem of not explaiming whether “new” enyines, state regulation of which is claimed to be wholly preempted from birth to death, but which are not regulated by IX PA, or are only regulated with respect to particular pollutants, can be regulated at all by any party. KPA was not required to promulgate standards for two years after promulgation of the Act, and was required also to account for appropriate leadtime. Moreover, KPA could not promulyate standards for NOx, VOCs and CQ unless it made the appropriate findings in- section 2138(a)(2). Finally, EPA revulation of other pollutant emissions from nonroad engines is discretionary under section 213(a)(4). Thus, for several reasons, G8: Coa b. Section 213(d) Section 2138(d) states, in part, that the KPA nonroad standards promulgated under section 215(a) “shall be subject to sections 206, 207, 208 and 209.” MPA has interpreted this lanpuage as extending the preemption provisions of section 209 to state and local regulation of nonroad engines, including section 209(d), which clarifies that state and local regulation of the use and operation of motor vehicles 1s not preempted. In AMA v. FPA, 88 F. 3d at 1093-94, the Court noted that neither KPA’s explanation nor peliioners’ explanation of section 213(d), which appears to incorporate section 209’s restrictions on state motor vehicle standards into a_ provision authorizing federal standards for nonroad engines, was “entirely satisfactory.” /d. at 1094. ‘The court, however, deferred to I} PA’s reasonable interpretation of an ambiguous statute. ARTBA posits the argument that section 2138(d) “merely created a one-to-one correspondence between the nonroad vehicles to which Clean Air Act preemption apphed and those for which the Clean Air Act required IS?A to issue standards.” According to ARTBA, section 2138(d) simply linked the new vehicles “subject to regulation under this Act” to section 209(e)'’s preemption. ARTBA’s position contains the same problem that all other interpretations have had: it does not numerous nonroad enpine: manutactarred after thie promulgation of the Clean Air Act Amendments would or could not be regulated, or potentially regulated only for specified pollutants. ‘Thus, the one-to-one correspondence ARTBA refers to would not occur. Moreover, this one-to-one correspondence clearly does not occur under the provisions of the final statute 69a explain how federal standards could be “subject to” a provision (section 209) that restricts the abilty of states to promulgate standards. Subjectinp federal standards to section 209 does not in any way effect state ability to regulate the engines subject to those standards, and conversely, saying that states are preempted from promulgating certain standards does nothing to affect the promulgation of federal standards. Thus, the language in section 213(d) will In any case need to be given meaning through interpretation that can never be “entirely satisfactory,” given the inartfulness of the original language. ARTBA, noting that the language in section 213(d) was added in the House of Representatives, rehes on the language in the House Committee report for its position: Standards issued under this subsection [213] are to be subject to sections 206, 207, 208, and 209... Section 209 of the Act is amended to provide that no State or political subdivision shall adopt or enforce standards relating to the control of emissions from new nonroad vehicles subject to repulation under this Act. This preemption does not apply to existing nonroad vehicles or engines. H.R. Rep. No. 490, 1O0Ist. Cong. at 310 (1990). Yet at is not clear how this language helps ARTBA’s position. First, as the language of section 209(e) was changed substantially in conference, any lepislative history deseribing the effect of the House bill on state preemption is of questionable use in determining the effect of the final Clean Air Act Amendments on state preemption. 70a However, given the fact that the statutory language of section 2138(d) did not change from the House bill to the final bill, it is still useful to review the legislative history for the House bill to determine the intention of the House in crafting that languape. The Committee report clearly indicates an intention not to preempt state and local regulation of existing nonroad engines; thus meaning that restrictions on the use of such engines would not be preempted. Moreover, the juxtaposition of section 209 with sections 206, 207, and 208, provisions clearly written to apply to new motor vehicles, using the statutory definition of new that HEPA reles on, indicates Congress's intent for HPA to regulate nonroad engines using the same structural mechanisms as are used for motor vehicles. Thus, Serves if this language indicates those engines that are regulated by EPA are preempted from regulation by states, piven IXPA’s reasonable definition of “new,” this still means that state and local repulation of mon-new nonroad engines (1.e. engines in use) would not have been preempted Moreover, ARTBA’s apparent view that the reference to section 209 in section 218(d) 1s only a reference to section 2O09(e) 1s not satisfactory. First, 1 Congress wished to restrict the applicability to only section 2O9%(e), then it could have done so explicitly. ART BA argues that the rest of section 209, including Z209(d), does not refer to nonroad engines. However, sections 206, 207, and 208 are similarly written only to apply to motor vehicles, because like section 209(a) through (d), they were written prior to the Incorporation of nonroad engines into Title IT. Sumilarly, sections 203 through 2O5, the enforcement provisions, of Tithe Il, which are implicitly referenced tka In section 215(d)’s requirement that nonroad engine standards promulgated under section 213(a) be “enforced in the same manner as standards prescribed under section 202,” are written only to apply to motor vehicles. The entire purpose of subsection 2138(d) 1s to, in shorthand fashion, extend to nonroad engines al: of the basic non-standard- setting provisions of Title II that are on their face applicable only to motor vehicles. Indeed, if those sections of Title I] did refer explicitly to standards regulating nonroad engines, section 2138(d) would be superfluous. Thus, the fact that section 213(d) incorporates by reference all of section 209 indicates that the House of Representatives intended the reference to apply to all of section 209, not just ZO0(e). Indeed, the language revising section 209 that was included in the House of Representatives’ bill contemporancously with scction Z215(d) stated: (©) No state or any political subdivision thereot shall adopt or attempt to enforce any standard or other requirement relating to the control of emissions from new nonroad chngines or nonroad vehicles subject to regulation under this Act. Subsection § (b) shall not apply for purposes” of this subsection. That fact that the House of Representatives exphecitly excluded subsection (b) from subsection (e€) indicates that it beheved failure to do so would have mcant that the waiver provisions in subsection (b) would otherwise be applicable to California standards and other requirements related to the control of emissions from new nonroad engines. It {Za also indicates that the House of Representatives did intend the remaining sections of section 209 to apply to state reyulation of nonroad engines. AR'PBA also argues that since section 218 (d) applies only to KPA’s new vehicle standards under section 2138(a), section 2Z09(d) could only save states’ authority to impose use restmections on nonroad engines until they leave the showroom floor, which is illogical, But this analysis is a strawman, as KPA has always maintaimed that the purpose of section 213(d)'s reference to section 209 was to import section 209’s restrictions on state standards (and, conversely, the explicit saving of state and local use restrictions) to all nonroad engines, not merely new nonroad engines, in the same manner as for motor vehicles. Indeed, even taking ARTBA’s preferred definition of “new,” the savings provision in section 209(d) would act to save state reyulation of the use of such “new” nonroad engines, because section 2O09(d) does not distinguish between use restrictions on new and other engines MPA continues to interpret Congress's intent in referring to section 209 in section 213(d) as, however inartfully, extending section 209’s restrictions on state and local standards regulating motor vehicle emissions to state and local standards repulating emissions from nonroad engines. ec. Section 209(e) ARTBA makes the argument that section 209(e) is unambiguous in prohibiting states and localities from regulating the use and operation of nonroad engines. Yet this view is at odds with the view of both IEPA and the court in HMA v. EPA, see, 8&8 I. 8d at 10938-94.2" [F/-N27| ‘The term “requirements in section 2O9%(e) is not ai defined term and is ambiguous, particularly when placed in the context of the remainder of section 209 and the lanpuayve in section 213(d). The word “requirements” has had a specific meaning in the context of section 209. In sections 209(a) and (c) the term requirements refers to certification, inspections and other approvals, but not to restrictions on use.* [IF N28] As discussed above, Congress explicitly intended to extend much of its regulatory apparatus for motor vehicles to nonroad engines, and referenced section 209 directly in section 213(d)’s extension of motor vehicle provisions to nonroad engines. Section 2090(e)(2)'s language in many respects echoes the language in subsections ZO9%(a) and (b) and section i177. This indicates that Congress intended to reference the same types of requirements my section 200(e) as it did in sections 200(a) and (c) 2 ARTBA notes the opimon of the court ino MMA vo fluston, 190 F. Supp 2d 922 (W.D. Vex. 2001), vacated as moot No. 01-50819 i Cir. Mar. 5, 2002), finding that certain restrictions (cluding a restriction on use of construction equipment during certain times of the day) were preempted under section 2O9(e) and rejyecting WVA’S interpretation, and i PA’s own rejection of the /luston decision as an inappropriate collateral attack on our regulations and the decision of the court in KMA ov. HPA. 6O led. Rep. 57, 228, 2425 (Nov. 14, 2001). The decision of the court in that case, to which EPA was not a party, provides 4 Summary analysis, without addressing the numerous issues of statutory interpretation and legislative history analyzed by EPA and the Court of Appeals in EMA vu. EPA. The ypinion is not persuasive. In addition, the decision has since been vacated as moot by the Court of Appeals for the Sth Circust 0 Sections ZO9(a) and (c) refer to “certification, uispection or approval” relating to the control of emissions Uda Moreover, there are indications in subsection 209(c) that Congress intended the reference to other requirements to apply only to accompanying enforcement procedures and complhance provisions for cxample, in section 209(¢)(2)(B), the reference to “other requirements” occurs only once. The California authorization provision states that IPA may authorize California to adopt and enforce standards and other requirements if California determines that the standards will be, in the agprepate, at least as protective, and if 7 PA docs not make three findings. Two of the three findings refer only to Cabfornia’s standards and the third refers to “Calhfornia standards and accompanying enforcement procedures.” Thus, to the extent “other requirements” include substantive provisions (hke use restrictions) beyond the compliance and enforcement provisions referenced in subsections 209(a) and (b), the formula for grantiny authorization completely ignores any examination of these provisions, because IPA’s examination looks only at standards and accompanying: enforcement procedures in pvranting authorizations. Jt seems absurd that an implied preemption provision could allow for authorization of provisions without any review of such provisions. section 209(b)(2)(B), the provision that allows other states to promulgate standards for nonroad engines if they are identical to California standards similarly equates “standards and other requirements” (actually referred to as “other actions as are referred to in subparagraph (A)”) with “standards and implementation and entorcement Again, to the extent “other requirements” are a subset larger than “implementation and (pa enforcement,’ section 2ZO9(b)(2Z)(B) would allow other states to implement any such requirements as long as any standards they happen to implement at the same time are identical to California’s. In essence, this effectively climinates any preemption on state and local use restrictions, because none of the conditions needed to be met by states to overcome such preemption even apply to use restrictions.®! [IN 29, 30] Aside from the statutory interpretation problem: created by ARTBA’: interpretation, ARTBA’ Interpretation 1s contrary to the entire history of the Clean Air Act and 1s not supported by the legislative history. On the contrary, the only Ik mislative history on the issue of whether states can continue to regulate use of nonroad engines in peneral squarely mdicates that such state authority remain SS TENS 1] ; Also, a discussed above the proposed House of Representative language that first introduced the “standard and other requirements” language also contamed language indicating that the provision of ubsection (b), but not subsections (c) and (d), were inapplicable to the preemption of tate and local standard lor new nonroad engine ‘Thi indicates that the use of “other requirements” was coextensive with the intention to allow states and localities to regulate uss and operation ARTBA nobles Chiat tdi Peaeape cca ol tha Bond mmendment (Pub .bL. 108-194 section 42%) tracks the “standard or other requirements” language of section 2O9(b)(2)(A), not tandards and implementation and enforcement” lanpuaye of ection 2ZOUD)CZACR). but this does not resolve the issue of what repulations Conpre: was refermny to when it referred to tandards or other requirements.’ ee statement of men Raucu tyied ii re | (clean Nit Conference Keport (States also fully retain existing authority LO regulate emi bon from all Lype: of existing or In-use nonroad engine or vehicle: by specifying fuel quality 76a These contemporancous floor statements from leading Senate nevotiators indicates their view that the final legislation did not preempt state and local authority to regulate use, which directly contradict ARTBA’s view. Moreover, this legislative history comports with the explicit view of Congress when it passed the origanal state preemption language in 1967 Specie language indicating the committee's position on the mghts of the States to control the movement, operation and use of licensed or registered vehicles is) ineluded. ‘Thi: language is of particular importance. While there has been a preat deal of concern expressed regarding control of new vehicle: httle attention has been paid to control of used vehicles, cither their emissions or thei use... These are areas in which the State and local government can be most effective 4 > Rep No. 4038. at 34 Moreover, section JOS(1) of the Clean Air Act actually encourages such state and local regulation, at least with regard to motor vehicles and requires EPA to provide assistance for such regulation. Indeed, state and local regulation of the use of emission sources, both Lationary and mobile, 1! commonplace ARTBA has provided no particular policy reason tor nonroad engines as a whole LO be treated ditferentls from othe I pecauhecations, operational modes or characteristics or measure that bimit the use of nonroad engines or equipment.) 136 Cong Rec. S16976 (October 27, 1990) and Statement of Sen. Chafer (“States cum continue to require existing and in-use nonroad engines to reduce emissions by setting fuel requirement operational restrictions = o7 limits On the Use ol such equipment ") 186 Cong. Rec. 8172387 (October 26, 1990) sources of pollution with regard to the ability of states and localities to regulate their use. In addition, as the comments of CARB indicate, localities have in the past often promulgated restrictions on the use of nonroad enpines and vehicles. Thus, there is no history of preemption of state regulation of use of nonroad CNnPIMnCs ‘The interpretation that states and localities should not be preempted from regulating use and operation of nonroad engines also is reasonable on policy grounds Unlike repulations that affect the desizn of an engine, use restrictions that differ from place to place do not threaten the national uniformity needed © by manufacturers because use restrictions do not restrict the design of the engine. kor the same reason, operators can meet different use restrictions in different states without needing engines meeting different design requirements in the different states. Moreover, as noted by the KMA v. HPA court, and the 1967 lepislative record, states and localiticgs are best able to reyulate the use and operation of these engines. Use restrections, unlike restrictions on engine design, offen are tied directly or indirectly to particular conditions or characteristics of a local area (e.g. particular locations, density of population, type of chyanes used sn a particular area), and ure best designed by the local regulatory body. Use restrictions that are sensible in one location may be impossible in another. Thus repyulation of the use of nonroad engines may be allbsuited for one size fits all national regulation, including repulation by the state of Cahfornia that becomes the only possible regulations available for other states and localities under section 2OG(e)(Z). ‘This is in contrast to regulations directed to the design of nonroad engines, because the engine designs are not differentiated from locality to locality. Tha kePA should be cautious in ascribing any intent by Conyress to create such a new preemption. See Medtronic Inc. v. Lohr, 518 U.S. 470, 485 (1996) (the histome powers of the States were not to be superseded by fa} Federal Act unless that was the clear and ”» manifest purpose of Congress.”). This is especially true considering that since EPA initially made its interpretation reparding use restrictions in 1994 and the MA v EPA court upheld this interpretation in 1996, Congress has made no attempt to reverse this interpretation. Given the ambiguous statutory language (particularly when read in the context of section 213(d)) and the lepislative history indicating Congress did not intend to preempt use restrictions, as well as the policy grounds for leaving such restrictions in the hands of individual states and localities, PA does not beheve it is appropriate to revise its interpretation that state and local restrictions on the use of nonroad engines and vehicles is not preempted. 3. Locomotive Provisions ARTBA claims that KEPA’s actions in the 1998 locomotive rule ipdicate that HPA should now preempt state and Jocal restrictions on use for all nonroad engines. In that rule, EPA promulgated a shiyhtly different definition of “new” for the purposes of regulating locomotives, compared to the definition for other nonroad engines. IPA also explheitly stated that particular types of state and local standards regulating locomotives and locomotive cnyines were preempted under section 2ZO9(G)(1). lor the following reasons, EVA beheves that EPA’s actions in that rule do not affect KPA’s interpretation regarding preemption of state and local regulations on the use of nonroad engines. As discussed in detail in the 199% rule and the notice of proposed rulemaking for that rule 62 J*ed. {Ya Reg. 6365 (Kebruary 11, 1997),*4 [F N32] the difference in the definition of new locomotive, Compared to other new nonroad engines, 1s based in particular on the differences in the way locomotives are used and remanufactured, compared to other nonroad enpines. Locomotive engines are kept in service for very long periods of time, compared to most other nonroad engines, and, in order to keep them in service for these long periods, are extensively remanufactured in a manner such — that engines that have been remanufactured should be considered new again. KPA beheved then and now that this particular aspect of locomotive use and remanufacture was sufficiently different from other nonroad engines, as well as motor vehicle engines, that a shpht expansion of the definition of “new” was appropnate for these engines otherwise, the vast majority of locomotives, particularly those in the Class 1 rathroad fleet, could avoid federal repulations for many years, despite being subject to a remanufacturing process that extensively renovated those enpines Moreover, EPA circumscribed the definition of “new locomotive engine” to apply only to engines during the pemod prior to introduction of the cngine into commerce after of manufacture or after remanufacture While this change in definition includes the period during which remanufacture occurs as being part of the period when the engine is new, the definition still excludes engines OMhce they have been reintroduced into commerce, which is consistent with the definition of new nonroad engine for all other enpines See also the Summary and Analysis of Comments on the Notice of Proposed Rulemakiny for kmission Standards for Locomotives and Locomotive Engines, Document No. A-94-31, V-C-) (December 16, 1997) KOA The 1998 rule also made more expheit’§ certain aspects of preemption with regard to regulation of locomotives and locomotive engines. HPA stated that it was providing more specific information because of the special circumstances regarding regulation of locomotives, because state and local standards that relate to control of emissions on new locomotives are subject to more encompassing preemption than other state and local standards regulating locomotives. The different definition of “new” affecting locomotives was relevant to this issue. EPA also mentioned the following issues: the interstate nature of locomotive travel and the fact that regulation of locomotives has gencrally been national in scope; the nature of the relationship between Jocomotive manufacturers and class I railroads (which are generally the only buyers of freshly manufactured locomotives, and thus have a large input in the design of locomotives); historic preemption of state regulation of locomotive design and concern that different state and local standards could have affect on daily activities of railroads lHiowever, even with regard to state and local control of Jocomotives, the state and local provisions KPA specifically listed as preempted were provision: “that would be expected to affect how a manufacturer designs a new locomotive or new locomotive enpine GQneluding both freshly manufactured and remanufactured units).” 62 kKed. Keg. at 6396-97, citing Allway Taxi v. City of New York, 340 F. Supp. 1120 (S.D.NLY.), affd 468 F.2d 624 (2d. Cir. 1972) Consistent with the Allway ‘Taxi case, EPA determined that certain standards on in-use locomotives (which no lonver meet the definition of new locomotives) should he preempted under section 2O09(e)(1). The expected impact of these tandards on the design of new locomotives was such that they should be treated ua: sla standards “relating to the control of emissions from new locomotives or new engines used in locomotives,” even though the standards themselves applied to in-use locomotives that were no longer new. IPA did not include use restrictions in that hst, which defined certain “standards and other requirements” that were preempted, and was silent on that issue in the 1998 rule, so there is particularly little precedential value of the 1998 rule regarding preemption of use restrictions for other nonroad enpines. We do note, however, that with regard to state and local restrictions on the use of locomotives, other statutes that apply specifically to locomotives, like the Interstate Commerce Commission Termination Act. of 1995, 49 U.S.C. § 10101, et seq., may create preemption of state and local regulation of locomotives beyond that of the Clean Air Act, see Association of American Reatlroads v. South Coast Atr Quality Management District, No. CV-06-01416, 2007 U.S. Dist. LEXIS 65685 (C.D. Cal, Apr. 80, 2007) it is clear that locomotives represent a clear and distunct category of nonroad engine that has historically been treated as more appropriately regulated at a national Jevel than a local level. See Napwer vo. Atlantic Coast Line, 272 US. 605 (1926). Ita: also clear that Congress, both explicitly in the statute and in the legislative history, indicated its preference for national regulation of locomotives. Locomotives are the only category of nonroad engine that EPA must repulate without any prior examination of contribution to nonattainment, under section 213(a)(5). In addition, new locomotives and new locomotive engines are one of only two categones of new nonroad engines for which state and local standards are prohibited with no ability for California to receive EPA authorization to regulate. With regard to that provision, the legislative history madicates Congress WAS particularly concerned regarding state and local regulation of locomotives States are preempted from regulating only two categories of new nonroad vehicles and engine: first, small farm and construction equipment, and second, new locomotives and new enpines used in locomotives. With regard to this latter category, we balanced the need to control emissions from new locomotives against our behef that State efforts to regulate locomotive emissions o1 operations would impose an unconstitutional burden on interstate commerce. As a result, we require HPA to regulate new locomotive emissions within 5 years, without first subjecting such ennssions to the study Jan) section 213(a)Q1)} 136 Cong. Ree. 1112848 (October 26, 1990) As we noted in the NPRM for the Jocomotive rule, “|t}he legislative history of section 209(e) does net contain a similar statement regarding any other category of nonroad vehicles, indicating Congress’ specific concern with the interstate commerce burden that could result’ from state regulation of new locomotives.” 62 Fed. Reg. 6397-98. Locomotives represciil only One Calepory, relatively mallin number and distinct in many ways, of nonroad cngines. Specific statutory provisions, and spccial) circumstances for locomotives, which have been recogmzed by numerous different parties, led to KPA providing somewhat different rules regarding state and local regulation of these engines. However, the circumstances that led to such actions with repard to locomotives have not been shown with regard to other nonroad engines. The particularly interstate nature of (>é 's 3a locomotive activity 1s not repheated by the activity of other nonroad enyines in general or the vast majority of nonroad engines; there 1s no history of preemption of state and local regulation of other nonroad engines, indeed commenters note that such regulation has occurred; and the legislative history does not indicate Congress was as concerned regarding state and Jocal regulation of other nonroad engines compared to such repulation relating to new locomotives. ARTBA provides no evidence nonroad engines as a whole are subject to t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2073%3A1. Public record. Not legal advice.