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Engine Mfrs. Ass'n v. EPA

ELR Citation: 26 ELR 21477
Nos. 94-1558, 88 F.3d 1075/42 ERC 1993/(D.C. Cir., 07/12/1996)

The court upholds provisions of U.S. Environmental Protection Agency (EPA) nonroad engine regulations that define the term "new" in Clean Air Act (CAA) §209(e), interpret the terms "standards" and "other requirements" in §209(e), and put surface mining engines exceeding 750 horsepower in the same category as smaller but similar engines under §213. The court first holds that an engine manufacturing association may challenge EPA's decision to allow states to adopt "in-use" regulations, even though the association did not raise this issue during EPA's rulemaking. The court next holds that the CAA's plain language does not foreclose EPA's definition of "new" under CAA §209(e)(1) to mean engines or vehicles that have not been sold to the ultimate purchaser or put into use. The existence of differing meanings of "new" in the CAA makes §209(e)(1)'s use of that term ambiguous, at best. The court also holds that EPA was within the bounds of permissible construction in analogizing §209(e) on new nonroad sources to §209(a) on new motor vehicles. Section 216(3) defines "new motor vehicle" as "a motor vehicle the equitable or legal title to which has never been transferred to an ultimate purchaser."

The court next rejects EPA's interpretation of §209(e)(2)'s preemption language as only covering new nonroad sources. It is clear from the text and structure of the statute that Congress intended to preempt state regulation and that it intended the scope of preemption to be the same as the scope of permissible authorization of state regulation. That authorization includes any nonroad vehicles or engines other than those referred to in §209(e)(1). The court rejects EPA's argument that because §213(a) authorizes EPA to regulate only new nonroad engines and vehicles, rejecting EPA's interpretation of §209(e)(2) would create a regulatory gap. The dispute is whether all states have independent authority to regulate non-new sources, or whether California has sole authority over such sources, with other states permitted to opt in to California regulations. The court next upholds EPA's interpretation that "standards" and "other requirements" that §209(e) prohibits states from adopting do not include in-use regulations. Section 209(d) protects the power of states to adopt such in-use regulations, and EPA could reasonably conclude that §213(d) incorporated §209(d) into the nonroad regime. In that case, the specific command of §209(d) would limit the general language of §209(e).

The court next refuses to reach the merits of a mining association's challenge to EPA's hydrocarbon, carbon monoxide, and particulate matter standards, because the association failed to preserve this issue for review. The court then holds that it was not arbitrary and capricious for EPA to put surface mining engines exceeding 750 horsepower in the same category as similar but smaller engines, that EPA adequately considered the costs of regulating such mining engines, and that EPA was within its statutory authority in finding that smoke endangered the public health and welfare.

Counsel for Petitioner
Timothy A. French
Neal, Gerber & Eisenberg
Two N. La Salle St., Ste. 2200, Chicago IL 60602
(312) 269-8000

Counsel for Respondents
Naikang Tsao
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000