I transcribed this letter, Jim
Feb 12 2010
To Utah Governor Gary R. Herbert
From Carol Rushin EPA Denver
I am writing to indicate that Legislation Pending in the 2010 Utah Legislature (HB 70) is of potential concern to the EPA. EPA is reluctant to become involved with the actions of a State’s legislature. However the Bill appears inconsistent with federal environmental requirements and risks confusion and conflict between Utah’s environmental programs and Federal environmental law if the Bill is enacted. In the spirit of partnership, we offer the following for your consideration.
I have been advised by EPA’s attorneys and technical experts that the aforementioned legislation may be inconsistent with the Clean Air Act (Act) and federal regulations. The legislation apparently would not prohibit certain actions that would continue to be prohibited under federal requirements governing manufacture, distribution, and installation of aftermarket systems of kits designed to allow vehicles or engines to operate on a fuel other than the fuel for which it was designed, and certified (aftermarket kits). I understand that these issues were brought to the attention of legislative officials and the Utah DAQ byEPA’s Office of Transportation and Air Quality and EPA’s Office of Enforcement and Compliance Assistance, which have raised concerns that the proposed legislation may not be consistent with federal statutory prohibitions on tampering. While we appreciate the States intent and efforts to comply with federal law, we remain concerned about HB 70.
All vehicles and engines sold in the United States are subject to the same emission standards, regardless of the fuel with which they operate. Manufacturers, sellers and installers of aftermarket conversion kits are subject to federal prohibition against tampering with emission control devices installed on vehicles and engines or installing devices to defeat those emission control devices, as well as a prohibition against manufacturing or selling devices which defeat those emission control devices. (Act section 203 (a)(3), 42 U.S.C. ss 7522 (a)(3)). Manufacturers, installers and sellers of aftermarket conversion kits must manufacture, sell and install only kits certified by the EPA in order to be exempted from these prohibitions.
If our reading of the pending legislation is correct, it would allow inspectors at the State level to inspect and “certify” vehicles retrofitted with aftermarket conversion systems or kits to run on compressed natural gas (CNG), even if those vehicles have not been certified by theEPA. These and other aspects of the Bill seem to imply that manufacturers and installers of conversion kits are not subject to the federal prohibitions discussed above, or that these entities may avail themselves as a safe harbor. However, HB 70 would not change the federal requirements. Under current EPA regulations manufacturers of aftermarket conversion kits must obtain a certificate of conformity from the EPA, and installers of the kits must use only certified kits to avoid violating the prohibitions in 203 (a)(3) of the Act.
We appreciate that the current federal regulations and policies to certify alternative fuel conversions are challenging for some manufacturers. We also are supportive of Utah’s general efforts to bring CNG vehicles in a responsible manner. To address these challenges, EPA has initiated a rulemaking process and plans to publish a proposal shortly that will be subject to public comment. The changes EPA intends to propose were formulated with broad stakeholder input, including input from interested parties in Utah.
In sum it appears that the Bill is inconsistent with federal law and leaves those involved in commercial activity associated with aftermarket fuel conversions vulnerable to enforcement for failure to comply with the federal statutory and regulatory requirements. I welcome your insights as to our understanding of pending legislation is accurate, and the opportunity to work together to carefully consider the ramifications of the proposed legislation. My office will provide information to your stall as requested. In addition, we would be happy to continue facilitating conversations between your staff and the two key offices mentioned earlier. If you need more information, you may call me, or your staff may call Steve Tuber,(303 312-6241)