From: Moulis, Charles

Sent: Thursday, May 30, 2013 4:15 PM

To: Jed R. Mandel

Subject: DELIBERATIVE potential revisions for 1039_665 4th draft .docx

Attachments: DELIBERATIVE potential revisions for 1039_665 4th draft .docx

Jed,

As you know, we have made a number of revisions to the draft 1039.665 text based on our 

meeting earlier this month. I think the attached draft addresses most of EMA’s concerns. The 

few issues that remain are flagged in the document so that we can continue to consider them 

as we go through internal EPA review.

Chuck 
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The potential revisions in this document are based on initial thoughts that have been developed by ASD staff only, 

and these potential revisions have not been reviewed by EPA’s Office of General Counsel or any other EPA office. 

The intended use of this document is to facilitate an informal discussion of the issues with EMA.

§1039.665 Temporarily disabling emissions controls during qualified emergency situations. 

This section specifies provisions that allow for the temporary disabling of emissions 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 direct or indirect 

significant risk to human life. An example of a direct risk would be an emission controls 

condition that inhibits the performance of an engine being used to rescue a person from a lifethreatening situation. An example of an indirect risk would be an emission controls 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 the temporary disabling of emissions controls during a qualified 

emergency situation, manufacturers may apply for the approval of Auxiliary Emissions 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. For the 

purposes of this section, the automatic limiting of engine performance to induce an operator to 

perform emissions-related maintenance—such as refilling the DEF tank of an SCR emissions 

control system—is considered to be emission controls. AECDs approved under this section are 

not defeat devices, and their proper use during a qualified emergency situation is not considered 

a prohibited act under Section 202 of the Clean Air Act. 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.

(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, activation of the AECD must 

require either the 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 in non-volatile electronic memory the 

total number of activations of the AECD for that engine.

(6) The engine controls must include an operator-activated switch or other device or element 

of design to allow the operator to manually deactivate the AECD once a qualified emergency 

situation has clearly ended. This manual control may include a “confirm-delete” function, as 
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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 conditions. This manual deactivation control must 

not deactivate operator inducements required by paragraph (b)(9) of this section.

(7) The AECD must automatically deactivate after reaching the limits specified in this 

paragraph (b)(7). The AECD may be subsequently reset as specified in paragraph (b)(8) of 

this section. For emission controls that involve a sequence of increasingly more severe 

engine performance limits to induce operators to perform emissions-related maintenance, the 

emission controls may be reset to the initial point of that sequence when the AECD is 

deactivated.

(i) The provisions of this paragraph (b)(7)(i) apply for engines used only to power an 

electrical power generator or a flood control pump, where the generator or pump is the 

sole source of electrical or shaft power when the normal source of power is interrupted 

during a qualified emergency situation. For such engines, the emergency AECD must 

automatically deactivate within a time period of 30 days after the AECD was initially 

activated, independent of the amount of time the engine was operated. The provisions of 

paragraph (b)(7)(ii) of this section do not apply, provided all the following are also true:

(A) The engine and equipment are intended to operate unattended; that is, without human 

input or observation, and

(B) The engine controls have the ability to record elapsed time from the point of AECD 

activation to the time of automatic deactivation, without regard to whether the engine is 

operating.

(C) The engine is labeled for use only in electrical power generation or flood control 

pump applications. Unless we approve alternate language, state the following: “THIS 

ENGINE IS FOR INSTALLATION IN ELECTRICAL POWER GENERATION OR 

FLOOD CONTROL PUMP APPLICATIONS ONLY.”

(ii) For all other engines, the emergency AECD must automatically deactivate within a 

cumulative engine run time period of [24-120] hours after the AECD was initially 

activated (excluding any time the AECD was deactivated), and the AECD must 

automatically deactivate within a time period of [72-240] hours after its activation,

independent of the amount of time the engine was operated. We may waive the [72-240] 

time period limit for the first [1-2] model years to which this section applies.

(iii) We may allow reconfiguring the AECD to remain active for longer intervals where 

we determine that a particular emergency situation warrants.

(8) Except as allowed under paragraph (b)(3) of this section, the manufacturer must ensure 

that resetting of the AECD cannot occur without the specific permission of the manufacturer; 

and that resetting the AECD must require either the 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.

(9) The manufacturer must take appropriate additional steps to induce operators to report 

AECD activation and request resetting of 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.

Comment [CM1]: EMA’s preferred text:

(A) The engine and equipment are intended to 

operate unattended; that is, without in-person human 

input or observation, and

Comment [CM2]: EMA’s preferred text:

and the AECD must automatically deactivate within 

a cumulative engine run time period of [72-240] 

hours after its activation, independent of the amount 

of time the AECD was active. engine was operated. 

We may waive the [72-240] time period limit for the 

first [1-2] model years to which this section applies.
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(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, reactivating, reporting AECD use, and requesting 

resetting of the AECD.

(2) Warning that activating the emergency AECD for something other than a qualified 

emergency situation, failing to disable the emergency AECD after a qualified emergency

situation has clearly ended, or failing to notify and report to the manufacturer as required 

under paragraph (e) of this section, are prohibited acts under federal regulations. The 

warning must also identify the maximum civil penalty for such violations, according to 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 of the AECD at any time. The manufacturer may reset the AECD only after the 

operator provides by any means the information required in paragraph (e)(1) of this section.

(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 days after activating 

an AECD approved under this section. The report must include the following:

(1) Contact name, mail and e-mail 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 a signature from an official acknowledging the emergency situation (such as 

a county sheriff, fire marshal, or hospital administrator).

(3) The reason for the activation of the AECD during the emergency situation. For example,

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 serial number (or equivalent).

(5) A description of the extent and duration of the engine operation while the AECD was 

active, including a statement whether or not the AECD was manually deactivated after the 

emergency situation had clearly ended.

(f) Operator Failure to Report. If the operator fails to submit to the manufacturer the applicable 

report 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) Manufacturer Reporting to EPA. Within 90 days of the end of each calendar year, the 

manufacturer must send an annual report of the use of AECDs approved under this section to the 

Designated Compliance Officer. 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 precipitating each 

AECD activation and copies of the reports submitted by operators (or statements that an operator 

did not submit a report, to the extent known by the manufacturer). 

(h) Submissions to EPA. Notifications and reports submitted to comply with this section are 

deemed to be submissions to EPA.
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(i) Recordkeeping. The manufacturer must keep records to document use of AECDs approved 

under this section.

(j) 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.