"Grandfathered" Doesn't Mean "Exempt"
Jun 5th, 2007
NON ATTAINMENT DESIGNATION MEANS STATES CAN REGULATE YOUR FLEET OPERATIONS
According to the 1990 Clean Air Act, US EPA prohibits individual states from implementing stricter emissions standards for old or new off road construction vehicles and equipment. This is called "Federal Pre - emption". In other words, the federal government reserves for itself the right to set emissions standards.
HOWEVER
California is not prohibited from adopting stricter emissions standards, thus, any state with an approved NOx / PM attainment (SIP) plan may follow California's lead and adopt identical standards, upon notification of US EPA, with the stricter standards taking effect after a two year lead time.
EPA AGREES - "GRANDFATHERED" DOESN'T MEAN "EXEMPT"
A direct quote from an article on the issue of federal preemption by the Associated General Contractors of America regarding how US EPA interprets its own rules:
USEPA believes there is a difference between an emissions control standard and a rule that restricts how contractors use and operate old equipment (i.e., equipment that contains a previously certified nonroad diesel engine)
WHAT THE EPA HAS SAID IN COURT ABOUT THE DIFFRENCE BETWEEN "EMISSION STANDARDS" AND "RULES GOVERNING EQUIPMENT OPERATION"
EPA believes that states are not precluded from regulating the use and operation of nonroad engines, such as regulations on hours of usage See 40 CFR Part 89 Appendix A;
EMA v. EPA, 88 F.3d 1075, 1093-94 (D.C. Cir. 1996) (court held that EPA had made a reasonable interpretation of the Act in finding that the preemption of state regulations did not extend to restrictions on the use of nonroad engines).
The U.S. Court of Appeals for the D.C. Circuit has upheld EPA's interpretation.
YOUR WORLD IS CHANGING
States with EPA designated non attainment counties face the loss of federal highway dollars if their counties are not brought into compliance for PM 2.5 and NOx levels.
With federal funds on the line, it is a matter of time before voluntary adoption of emission reduction controls will likely give way to state sponsored mandates, and preferential bid awards given to those who are proactive in reducing toxic emissions.
Although the issue of states rights vs. US EPA pre - emption vs. the construction industry has been the subject of much litigation, the states will mandate through legislation, when they cannot mandate judicially. (See Texas) In other words, the court may or may not be a refuge for you. Can you afford to "fight city hall"?
IS IT REASONABLE TO ASSUME YOU CAN CONTINUE TO CONDUCT BUSINESS AS USUAL, WHEN FEDERAL FUNDING IS IN THE BALANCE?
American Clean Energy Systems Inc. (ACES) Brian Schubert VP Chemical Technologies 708-372-6924
bschubert@americancleanenergysystems.com - www.americancleanenergysystems.com