G&W to destroy 88 locomotives as part of settlement with EPA

Chris Webster · **Joined:** Sat Aug 25, 2007 12:45 am **Posts:** 1010

A January 23, 2023 Railway Age article:

Quote:

The U.S. Environmental Protection Agency (EPA) and the Department of Justice (DOJ) on Jan. 24 announced a settlement with Genesee & Wyoming Railroad Services Inc. (G&W) and its affiliated companies for what it called a violation of Clean Air Act (CAA) locomotive regulations.

According to the DOJ, the complaint, also filed today, alleges that G&W’s locomotives with rebuilt engines, which burn diesel fuel and produce “significant emissions of nitrogen oxide (NOx) and fine particulate matter,” failed to meet applicable EPA emission standards, and that G&W did not perform required emissions-related maintenance or keep records of maintenance performed.

also:

Quote:

According to the DOJ, the consent decree, which also requires G&W remove from service and permanently destroy 88 older locomotives that are not required to meet any EPA emission standards and to pay a $1.35 million civil penalty, will reduce the company’s NOx emissions from its locomotives by approximately 469 tons per year and particulate matter emissions by 14 tons per year. G&W has further agreed that it will replace any locomotive it has scrapped only with locomotives subject to, and meeting, EPA emission standards.

Link to the article: G&W, EPA Reach Environmental Settlement

Here's the link to the Complaint: Case 1:23-cv-00084-UNA Document 1

And the link to the Consent Decree; the 88 locomotives that will be destroyed are listed in Appendix A: Case 1:23-cv-00084-UNA Document 3-1 Filed 01/24/23

PaulWWoodring · **Posted:** Thu Jan 26, 2023 9:18 am

The list of units in the appendix is nowhere near 88, so far more to come. This could have implications for a number of larger regional carriers that use older second-generation rebuilt units, like the Wheeling and Lake Erie (all older EMD), depending on how they have serviced, rebuilt and maintained their power.

Overmod · **Joined:** Thu May 24, 2012 1:37 pm **Posts:** 2230

Very instructive to read this complaint, and understand some of the attitude behind it.

Note the Government-defined formal definition of "remanufactured" in the Final Complaint, paying attention to that "replacing all the power assemblies".

What this really boils down to is the Government doing a fishing expedition on materials submitted to it, and finding violations of obtaining revised COCs on paper, documenting maintenance procedures, not doing specified maintenance 'timely' (e.g. at the next 92-day or 184-day inspection) and keeping records in appropriate form -- the sort of things Goverment agencies love because they are easily demonstrated whether or not they had any impact on actual air pollution levels. EVERYONE involved in maintaining diesel locomotives in serviceable condition may have to look to the reasoning in the Complaint as applying to them after the consent decree.

Note the statutory penalties: at least $32,500 PER DAY. Going up to $51,796 as inflation ramps up. That adds up quickly, and leads to something that may be of concern here.

Normally, "destroyed" in this context would follow previous policy, as in the early Obama 'cash for clunkers' initiative, where the engine block is functionally destroyed or rendered unserviceable, or the engine is permanently damaged by using adhesives and/or abrasives in its lube feed while running. That at least maintains a 'destroyed' engine in visually "preserved" condition, at least as far as 'historic fabric' static preservationists might be concerned.

But what this is beginning to sound like -- and I have not read the actual 'consent' settlement yet -- is that G&W and affiliates have essentially 'turned over' the 88 locomotives in lieu of paying the whole amount of their daily fines... and that would leave the Government in possession of the 88 units, to be disposed of as "they" see fit. If that follows, say, the Amtrak policy involved in retirement of AEM-7s, "limitation of future liability" might involve diligent scrapping of the units to the extent of cutting axles and truck frames, to ensure no part can be 'reused'. It might be time for people in preservation to start arrangming now to open negotiations to get any rare, expensive, or unusual parts set aside or donated.

Alexander D. Mitchell IV · **Posted:** Thu Jan 26, 2023 10:46 am

Overmod wrote:

But what this is beginning to sound like -- and I have not read the actual 'consent' settlement yet -- is that G&W and affiliates have essentially 'turned over' the 88 locomotives in lieu of paying the whole amount of their daily fines... and that would leave the Government in possession of the 88 units, to be disposed of as "they" see fit. If that follows, say, the Amtrak policy involved in retirement of AEM-7s, "limitation of future liability" might involve diligent scrapping of the units to the extent of cutting axles and truck frames, to ensure no part can be 'reused'. It might be time for people in preservation to start arranging now to open negotiations to get any rare, expensive, or unusual parts set aside or donated.

I would LOVE to not have to sound like some right-winger "survivalist" doomsayer and/or conspiracy theorist claiming "the government is out to get you!"

But given what we're seeing here and have been seeing so far out of the "worst" that "government" has to offer, you are a blasted fool if you are in active rail preservation and take the attitude of "that'll never happen to us." That's the attitude that brought about the Indiana Transportation Museum fiasco, and reduces the doomsayers to saying "See, I told you so!"

There exist "many fine people on both sides...." in government with common sense and an understanding of flexibility and compromise. If there didn't, we wouldn't have regulations covering steam locomotive maintenance--they would have just shut us all down, or forced us to put battery packs in the tender and electric motors where the pistons were. But there also exist enough power-crazed, uncompromising dolts with worthless academic degrees in high places, driven by the conviction that they're doing the "right" thing for "the people/children/planet"/TV cameras, that we have no choice but to assume the worst and prepare for an antagonistic debate or even battle.

NS 3322 · **Posted:** Thu Jan 26, 2023 11:38 am

PaulWWoodring wrote:

The list of units in the appendix is nowhere near 88, so far more to come. This could have implications for a number of larger regional carriers that use older second-generation rebuilt units, like the Wheeling and Lake Erie (all older EMD), depending on how they have serviced, rebuilt and maintained their power.

The list is indeed at 88 units:

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Alexander D. Mitchell IV · **Posted:** Thu Jan 26, 2023 11:40 am

This page has the full list on pages 44-45:

https://www.justice.gov/opa/press-relea ... 6/download

A quick perusal shows nothing of desperate "need" for saving, unless someone is heck-bent on a SW1001 or that lone GP28...................

Chris Webster · **Joined:** Sat Aug 25, 2007 12:45 am **Posts:** 1010

PaulWWoodring wrote:

The list of units in the appendix is nowhere near 88

Sorry, I did not include the correct link to the Consent Decree. I've edited my post and you should now be able to see the full list.

Overmod · **Joined:** Thu May 24, 2012 1:37 pm **Posts:** 2230

Thank you, ADM IV

Note that although the Word document consent decree was filed 1/23/23, a number of its terms, specifically including the action date for the first 12 locomotives, already occurred in 2022 (and I have seen no indication that G&W was given an extension as a 'continuance' of the agreement's enforcement. That may matter given the very substantial statotory penalties in Section VIII, including a 'late fee' of up to $25K per locomotive per day (!).

The actual effective terms are interesting. "Destroyed" means cutting or disabling the prime mover, but also cutting the frame if the unit is not repowered to Tier 3 or 4 compliance. Which is interesting because any replacement units G&W buys to replace the 'units to be destroyed' only has to be Tier )+ or better -- this may be intentional. There is no requirement to scrap any other components, BUT if they are, a list has to be provided to the EPA (probably with confirmation that hazardous waste was controlled, etc. etc. etc.) I see no exception to the 'frame scrapping' requirement if a depowered unit is to be 'donated to preservation'.

Operating 'preservation' might be advised to read the list of requirements in section V(B)(a)ff.

I thought there was ominous mention of the possibility of 'strict scrutiny' in section V!! (37). That is something that organizations that are in any way subject to Government oversight should avoid like the plague, and ideally confirm in writing that it will not be imposed. Some divisions of Government use this as a very pointed and specific weapon against organizations they want to damage, and given the increased love of the present Administration for income from any source and the ballooning of statutory fees and penalties even for unwitting transgressions, it could become lethal to an organization within no more than days.

Chris Webster · **Joined:** Sat Aug 25, 2007 12:45 am **Posts:** 1010

A Tuesday, January 24, 2023 Press Release from the Department of Justice:

Quote:

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Tuesday, January 24, 2023
Genesee & Wyoming Railroad Services Inc. to Address Clean Air Act Violations in Settlement with United States

The Company Estimates it will Spend $42 Million to Correct Violations and Offset Associated Environmental Harm

Today, the U.S. Environmental Protection Agency (EPA) and the Department of Justice announced a settlement with Genesee & Wyoming Railroad Services Inc. and numerous affiliated companies (collectively, GWRSI) for violation of Clean Air Act (CAA) locomotive regulations. The complaint, also filed today, alleges that GWRSI’s locomotives with rebuilt engines failed to meet applicable EPA emission standards, and that GWRSI did not perform required emissions-related maintenance or keep records of maintenance performed.

The locomotives at issue in this settlement burn diesel fuel which produces significant emissions of nitrogen oxides (NOx) and fine particulate matter. NOx is a contributor to the formation of summer ozone, and particulate matter smaller than 2.5 microns has been shown to cause lung damage and cancer. GWRSI estimates that the company will spend approximately $42 million to comply with consent decree requirements which will reduce NOx emissions from its locomotives by approximately 469 tons per year and particulate matter emissions by 14 tons per year.

“By requiring locomotives to follow emissions standards, and requiring dozens of older, higher-polluting locomotives to be scrapped altogether, this consent decree reduces health threats from air pollution nationwide, particularly in those communities that live along railroad corridors,” said Assistant Attorney General Todd Kim of the Environment and Natural Resources Division.

“Today’s settlement requires GWRSI to bring its fleet of locomotives into compliance with Clean Air Act pollution control requirements,” said Acting Assistant Administrator Larry Starfield of the EPA’s Office of Enforcement and Compliance Assurance. “The settlement is expected to reduce tons of nitrogen oxide and particulate matter pollution and improve air quality where their trains operate.”

Due to cost and other considerations, locomotives and their engines are typically rebuilt (or remanufactured) multiple times during their operational lives. EPA regulations require that rebuilt locomotive engines use the latest technology (for that model year locomotive) to reduce emissions. The consent decree requires GWRSI to comply with this requirement for rebuilt engines and take steps to ensure that it does not purchase or sell locomotives that have been rebuilt without conforming to applicable emissions standards. It also requires that GWRSI timely perform critical emissions-related maintenance. To mitigate excess pollutants associated with the alleged violations, the settlement requires GWRSI to remove from service and permanently destroy 88 older locomotive that are not required to meet any EPA emission standards. GWRSI has further agreed that it will replace any locomotive it has scrapped only with locomotives subject to, and meeting, EPA emission standards. The consent decree also requires GWRSI to pay a $1.35 million civil penalty.

The consent decree, lodged in the U.S. District Court for the District of Delaware, is subject to a 30-day public comment period and final court approval. The consent decree will be available for viewing at www.justice.gov/enrd/consent-decrees.

Attachment(s):
Download Genesee & Wyoming consent decree

Topic(s):
Environment
Component(s):
Environment and Natural Resources Division

Kelly Anderson · **Posted:** Thu Jan 26, 2023 2:41 pm

IIRC, operations with fewer than 500 employees are exempt from these rules. Anyone feel like reading the CFR to confirm or deny that?

jayrod · **Posted:** Thu Jan 26, 2023 3:40 pm

Kelly Anderson wrote:

IIRC, operations with fewer than 500 employees are exempt from these rules. Anyone feel like reading the CFR to confirm or deny that?

Right this minute, the EPA website appears to be broken. I’ll try again later.

Rainier Rails · **Posted:** Thu Jan 26, 2023 4:17 pm

one potential "loss" on this list is Portland & Western (PNWR) #1501, a rare SD7, and operating at that, and still in SP colors

ex-SP #1530, exx-#1401, exxx-#2701, nee-#5280

Portland & Western (and Willamette & Pacific [WPRR] before that) has always had a small fleet of venerable ex-SP GP9's, SD7's, and SD9's, many if not all of which had gone through SP's 80's-era rebuild programs and had been assigned to the various branchlines in the Willamette Valley for years.

There is at least one unit from said ex-SP Oregon territory that has been preserved already and will therefore avoid the fate of the others, SD9 #5399, as LLW #5399 (George Lavacot) now in use on the Albany & Eastern excursion line; ex-Willamette Valley RR/RY (WVRD) #4364, exx-SP #4364, exxx-#3877, nee-#5399

(It should be noted that the A&E also has a former SP/PNWR GP9 on their roster, AERR #1750, ex-#3859, exx-PNWR #3859, exxx-SP #3859, exxxx-#3660, nee-T&NO #456.)

It is interesting that one other unit that is/was owned by Lavacot is included in the list:

PNWR SD9 #1854, ex-LLW?, exx-WVRD #4433, exxx-SP #4433, exxxx-#3904, nee-#5426

Numbering history of the other PNWR units included as follows:

PNWR SD9 #1852 ex-SP #4397, exx-#3916, nee-#5438...like the #1501, the #1852 is also still in SP paint

PNWR GP9 #1801 ex-SP #3855, exx-#3693, nee-#5830...#1801 wears a "heritage" version of the SP "Black Widow" scheme

PNWR GP9 #1803 ex-Louisiana & Delta RR #1752 (another G&W property), exx-SP #3790, exxx-#3579, nee-#5738...the #1803 was transferred by G&W several years ago from the PNWR to another G&W property in the Pacific Northwest, the Puget Sound & Pacific (PSAP)

(There seems to be some confusion on the #1803, as another source lists that LDRR #1752 was ex-SP #3790, exx-#3578, nee-#5737; and that SP #5738 was later #3579, then #3787, then NBSR #3787.)

Not included in the list are:

PNWR GP9's #1804 and #1805

PNWR SD9's #1851 and #1853

WPRR GP9 #1802, which was scrapped in January 2005. (WPRR #1802, ex-Austin & Northwestern #44, nee-D&RGW #5944)

The 2 additional GP9's escaped inclusion in the list as they had already been resold:

#1804 is now on the Napa Valley RR as their #69

NVRR GP9 #69 ex-PNWR #1804, exx-WC #4508, exxx-Fox River Valley RR #4508, exxxx-C&NW #4508, nee-M&StL #710

#1805 is now owned by the Peninsula Terminal Co. in Portland, OR

PT #1805 ex-PNWR #1805, exx-SP #3822, exxx-#3659, nee-T&NO #455

#1851 and #1853 may also already be off-roster; I remember seeing reports of units being scrapped on the PSAP the other year, waiting on confirmation on which units were cut up.

Overmod · **Joined:** Thu May 24, 2012 1:37 pm **Posts:** 2230

The 30-day omment period on the consent decree is "to be scheduled" as of the time I posted this. Keep watching until it starts. I know there are comments I want to make on this, and I encourage as many as possible of the rest of you who are interested to comment and ask questions.

Is there a market for a Tier-3 repowered SD7?

Overmod · **Joined:** Thu May 24, 2012 1:37 pm **Posts:** 2230

Quote:

"IIRC, operations with fewer than 500 employees are exempt from these rules. Anyone feel like reading the CFR to confirm or deny that?"

Personally, I think G&W was picked as a test case because a bunch of smaller constituent organizations could be bundled together as "Defendant Affiliates" so that the cumulative number of employees met the test. At this point it's probably moot to discuss whether or not that was the 'strategy'. The consent decree terms apply whether or not the cited sections of the CFR or other codes apply to G&W.

Looking at the rhetoric in the press release, it certainly seems as if the Government is spinning this to mean total destruction of the polluting locomotives -- "scrapped altogether" in the words of that annoying little Todd Kim. Which is not at all how the plain language of the actual text of the consent arrangement reads. I am still gun-shy after the NOx-level scam that so damaged EMD's market prospects, so I have to wonder whether the "intent" is to force G&W to actually scrap the locomotives completely, and incur all the additional fees, penalties, etc. from EPA in disposing "safely" of the cremains. My paranoia is saying 'yes' more insistently than my respect for nominally democratic institutions of government wants to hear.

jayrod · **Posted:** Thu Jan 26, 2023 6:11 pm

From: https://www.govinfo.gov/content/pkg/FR-2008-06-30/pdf/R8-7999.pdf. I don’t know if this is the latest and greatest, but this is from the final rule in 2008 explaining who the rule applies to. Section IV.A.13.a.ii (if I counted correctly):

Quote:

Class III Railroads Exempt From New Standards for Existing Fleets
EPA is limiting the category of small railroads which are exempt from the Tier 0, 1 and 2 remanufacturing requirements for existing fleets to those railroads that qualify as Class III railroads and that are not owned by a large parent company. Under the current Surface Transportation Board classification system, this exemption is limited to railroads having total revenue less than $25.5 million per year. This change requires that all Class II railroads, when remanufacturing their locomotives, meet the new standards finalized for existing fleets.
EPA had requested comment on whether the small railroads exemption from emissions standards for existing fleets had been effective and appropriate and whether they should continue under the new program finalized today. Under part 92, only railroads qualifying as ‘‘large’’ businesses, as defined by the Small Business Administration (SBA) were subject to the standards for their pre-existing fleet. The SBA definition of a large railroad is based on employment. For line-haul railroads the threshold is 1,500 or more employees, and for short- haul railroads it is 500 or more employees. Additionally, any railroad owned by a parent company that is large by SBA definition is also subject to the current existing fleet requirements. Although this excludes a majority of the more than 500 U.S. freight railroads, it addresses the vast majority of the emissions because it includes all Class
I railroads.

G&W to destroy 88 locomotives as part of settlement with EPA

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