1039.665 Special provisions for use of engines in emergency situations.§ 1039.665 Special provisions for use of engines in emergency situations.
This section specifies provisions that allow for temporarily disabling emission controls during qualified emergency situations. For purposes of this section, a qualified emergency situation is one in which the condition of an engine's emission controls poses a significant direct or indirect risk to human life. An example of a direct risk would be an emission control condition that inhibits the performance of an engine being used to rescue a person from a life-threatening situation. An example of an indirect risk would be an emission control condition that inhibits the performance of an engine being used to provide electrical power to a data center that routes “911” emergency response telecommunications.
(a) Scope. To facilitate temporarily disabling emission controls during a qualified emergency situation, manufacturers may apply for approval of auxiliary emission control devices (AECDs) under this section. Once activated, an AECD approved under this section may disable any emission controls as necessary to address a qualified emergency situation, subject to the limitations in this section. For the purposes of this section, automatically limiting engine performance to induce an operator to perform emission-related maintenance - such as refilling a DEF tank - is considered an emission control. AECDs approved under this section are not defeat devices, and their proper use during a qualified emergency situation is not prohibited under Clean Air Act section 203 (42 U.S.C. 7522). Manufacturers may apply for AECD approval at any time; however, we encourage manufacturers to obtain preliminary approval before submitting an application for certification. We may allow manufacturers to apply an approved AECD to engines and equipment that have already been placed into service.
(b) AECD approval criteria. We will approve an AECD where we determine that the following criteria have been met:
(1) The AECD's design must be consistent with good engineering judgment and the manufacturer must show that the AECD deactivates emission controls only to the extent necessary to address the expected emergency situation.
(2) Manufacturers must discourage improper activation of the AECD by displaying information where it is clearly visible to the equipment operator when the operator is in a position to activate the AECD. Unless we approve alternate language, state the following: “EMERGENCY USE ONLY. SEE OWNERS MANUAL. PENALTIES APPLY FOR MISUSE.”
(3) Manufacturers may design and produce their engines with the AECD initially armed to allow operators to activate the AECD one time per engine without any further input or permission from the manufacturer. The AECD may be subsequently reset as specified in paragraph (b)(8) of this section.
(4) Except as allowed by paragraph (b)(3) of this section, AECD activation must require either input of a temporary code, reconfiguration of the engine's electronic control module by a qualified service technician, or an equivalent security feature that is unique to each engine.
(5) The engine controls must be configured to record the total number of AECD activations in that engine's nonvolatile electronic memory.
(6) The engine controls must include an operator-activated switch or other element of design to allow the operator to manually deactivate the AECD once a qualified emergency situation has ended. This manual control may include a “confirm-delete” function, as needed, to prevent unintentionally deactivating the AECD. This control may allow for manual reactivation of the AECD provided that the AECD's automatic deactivation limits in paragraph (b)(7) of this section have not yet been reached, but such reactivation by operators would be allowed only under emergency situations. This manual deactivation control must not deactivate operator inducements required by paragraph (b)(9) of this section.
(7) The AECD must automatically deactivate within a cumulative engine run time of 120 hours after the AECD was initially activated (excluding any time the AECD was deactivated). The AECD may be subsequently reset as specified in paragraph (b)(8) of this section. For emission controls that involve a sequence of increasingly severe engine performance limits to induce operators to perform emission-related maintenance, the emission controls may be reset to the initial point of that sequence when the AECD is deactivated.
(8) The manufacturer must ensure that resetting the AECD cannot occur without the manufacturer's specific permission, and that resetting the AECD requires either input of a temporary code, reconfiguration of the engine's electronic control module by a qualified service technician, or an equivalent security feature that is unique to each engine. AECD resets may not occur unless either the manufacturer has evidence that the emergency situation is continuing or the operator provides the information required in paragraph (e) of this section, in writing or by any other means.
(9) The manufacturer must take appropriate additional steps to induce operators to report AECD activation and request resetting the AECD. We recommend including one or more persistent visible and/or audible alarms that are active from the point when the AECD is activated to the point when it is reset.
(c) Required information. Manufacturers producing engines equipped with an AECD approved under this section must communicate at least the following information in writing to the operator:
(1) Instructions for activating, deactivating, and reactivating the AECD; reporting AECD use; and requesting AECD resets.
(2) A warning that federal regulations prohibit activating the emergency AECD for something other than a qualified emergency situation, failing to disable the emergency AECD after a qualified emergency situation ends, and failing to notify the manufacturer and send reports as required under paragraph (e) of this section. The warning must also identify the maximum civil penalty for such violations as described in 40 CFR 1068.101.
(3) Notification that the manufacturer will send the information from the operator's report under paragraph (e) of this section to EPA and that federal regulation separately prohibits submitting false information.
(d) Resetting AECDs. The operator (or other person responsible for the engine/equipment) may request resetting the AECD at any time. The manufacturer may reset the AECD only if the manufacturer has evidence that the emergency situation is continuing, or after the operator provides the information required in paragraph (e) of this section, in writing or by any other means.
(e) Operator reporting of AECD use. The operator (or other person responsible for the engine/equipment) must send a written report to the manufacturer within 60 calendar days after activating an AECD approved under this section. The report must include the following:
(1) Contact name, mail and email addresses, and telephone number for the responsible company or entity.
(2) A description of the emergency situation, the location of the engine during the emergency, and the contact information for an official who can verify the emergency situation (such as a county sheriff, fire marshal, or hospital administrator).
(3) The reason for AECD activation during the emergency situation, such as the lack of DEF, or the failure of an emission-related sensor when the engine was needed to respond to an emergency situation.
(4) The engine's serial number (or equivalent).
(5) A description of the extent and duration of the engine operation while the AECD was active, including a statement describing whether or not the AECD was manually deactivated after the emergency situation ended.
(f) Operator failure to report. If the operator fails to submit the report required by paragraph (e) of this section to the manufacturer within 60 days of activating an AECD approved under this section, the manufacturer, to the extent it has been made aware of the AECD activation, must send written notification to the operator that failure to meet the submission requirements may subject the operator to penalties under 40 CFR 1068.101.
(g) Prohibited acts. The following actions by the operator are improper use of the AECD and are prohibited under Clean Air Act section 203 (42 U.S.C. 7522):
(1) Activating the emergency AECD for any use other than a qualified emergency situation where the emission control strategy would curtail engine performance.
(2) Failing to disable the emergency AECD after a qualified emergency situation has ended.
(3) Failing to disable the emergency AECD after the problem causing the emission control strategy to interfere with engine performance has been or can reasonably be fixed.
(4) Failing to provide the information required under paragraph (e) of this section within 60 days of AECD activation.
(h) Manufacturer reporting to EPA. Within 90 days after each calendar year, the manufacturer must send an annual report to the Designated Compliance Officer describing the use of AECDs approved under this section. A manufacturer may request an extension if it is impractical to meet this deadline as the result of an emergency situation occurring late in a given calendar year. The annual report must include a description of each emergency situation leading to each AECD activation and copies of the reports submitted by operators (or statements that an operator did not submit a report, to the extent of the manufacturer's knowledge).
(i) Submissions to EPA. Notifications and reports submitted to comply with this section are deemed to be submissions to EPA.
(j) Recordkeeping. The manufacturer must keep records to document the use of AECDs approved under this section until the end of the calendar year five years after the onset of the relevant emergency situation. We may approve alternate recordkeeping and reporting requirements.
(k) Anti-circumvention. We may set other reasonable conditions to ensure that the provisions in this section are not used to circumvent the emission standards of this part.[79 FR 46373, Aug. 8, 2014]