AGC Comments on Last-Minute Changes to Californiaís Off-road Diesel Rules
Despite AGC of America's strong objections, California is setting first-time emissions rules for existing fleets of off-road diesels. The rule — currently being eyed by other states — will force older equipment out-of-service and require equipment owners to spend an estimated $13 billion in California alone over the rule’s lifetime on new machines and/or engine retrofits. AGC continues to build a case against California’s authority to promulgate this rule and most recently submitted an additional 178 pages of technical and legal arguments to the rulemaking record.
Immediately preceding its adoption of the first-ever statewide diesel emissions reduction mandate last July, the California Air Resources Board (CARB) approved several last-minute modifications to the text of the rule. CARB staff published the modified text in late December and offered the public a final 15 days to submit comment.
Prior to the January 8, 2008, deadline, AGC submitted an additional 178 pages of technical and legal arguments demonstrating that:
- The state has vastly understated the increase in greenhouse gas emissions that the off-road retrofit rule would create. AGC’s comments show that, in the 2020 baseline year, the current proposal will increase carbon dioxide (CO2) emissions by almost 400,000 metric tons per year.
- The state has failed to assess the negative environmental impacts (such as congestion and increased criteria-pollutant emissions) that the currently drafted rule will cause by crippling industry’s ability to perform on congestion-reducing and emission-reducing infrastructure projects.
- The state has not considered the significant body of research, by eminent scholars not affiliated with industry, that show that lowering nitrogen oxide (NOx) emissions does not reduce ozone pollution and may even increase it in urban areas where most of California’s population lives.
- The state has overstated the market in used, later-tier equipment. AGC convened an analysis of CARB staff’s analysis and found that CARB double-counted vehicles, counted vehicles and equipment not subject to the proposed rule, and relied heavily on small equipment types that industry would replace regularly without any rule.
In addition, AGC’s comments point out that CARB staff failed to meet the California Administrative Procedure Act’s requirements to involve regulated stakeholders and to adequately consult with other federal, state, regional, and local public agencies during the rulemaking process.
As early as next week, CARB is expected to publish the final text of the “Surplus Off-Road Opt-in for NOx” (SOON) program. Local air districts may opt-in to the SOON program to reduce NOx emissions beyond what is required by the statewide retrofit rule. Larger fleets that operate vehicles in districts participating in the SOON program will be required to apply for incentive money, and – if they receive the money – to take additional actions to reduce NOx emissions. The California construction industry has warned staff of the San Joaquin and South Coast Air Quality Management Districts that the SOON provisions are unworkable as currently written. AGC of America will submit its own letter in late February supporting industry’s position.
Following that comment period, CARB will prepare a final rulemaking package to submit to the California Office of Administrative Law for review and final implementation. According to CARB’s timeline, fleet owners will have to begin complying with the rule beginning in 2009. However, CARB will need to obtain a Clean Air Act waiver from the U.S. Environmental Protection Agency (EPA) to enforce the standards, and that would allow other states to adopt and enforce identical rules.
AGC is currently evaluating its legal rights and options, and will continue to work hard to keep the construction industry economically viable and to prevent lost jobs and delays in the completion of important infrastructure projects.
Determined to prevent California from setting a de facto national standard that is both economically and technologically infeasible, AGC is prepared to challenge CARB’s rulemaking process before the state’s Office of Administrative Law and in the California courts. Concurrently, AGC plans to oppose any action by EPA to grant California a waiver to set off-road equipment standards that differ from the federal rules. The federal Clean Air Act requires EPA to determine that CARB has met certain criteria (e.g., Calif. needs the retrofit mandate to address “compelling and extraordinary conditions”) before it can enforce more aggressive measures than the rest of the country.
At issue are new California rules that require first-time pollution controls on existing off-road diesel engines in construction equipment, along with provisions that mandate the engines be retired if they cannot meet the strict new standards. Federal rules set by EPA impose stringent emissions requirements on new off-road diesel engines and fuel, but do not mandate any reductions from in-use engines. CARB will need to obtain a Clean Air Act waiver from federal EPA in order to enforce the standards, and that would allow other states to adopt and enforce identical rules.
For more information, read an in-depth article that ran in the September/October 2007 issue of AGC’s Constructor Magazine or contact Leah Pilconis, Senior Environmental Advisor to AGC of America at email@example.com.
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