AGC Presses California for Relief from Potentially Nationwide Rule on Off-Road Diesel Emissions

In close coordination with the AGC of California and its San Diego Chapter, AGC of America continues to press California for relief from its potentially nationwide rule on off-road diesel emissions.   Last December, AGC petitioned the California Air Resources Board (CARB) to reopen the rule.  AGC also urged the U.S. Environmental Protection Agency (EPA) to deny the state the federal approval that it requires to enforce the rule's core requirements.  Since then, AGC has persuaded CARB to make an objective assessment of how greatly the recent economic downturn has already reduced emissions from off-road diesel equipment, and to share background information on the agency's past projections of such emissions with the association. The state finalized the rule in June of 2008 and sought federal approval of its strict standards for emissions from existing fleets of off-road diesel equipment two months later.  If the state's standards meet with federal approval, they will begin to take effect in March of 2010.  In addition, most if not all of the other states will be free to adopt identical standards.  While the Clean Air Act generally preempts the states' authority to set emission standards, the statute carves out an exception for California and any California standards that meet with federal approval. The new standards are for nitrogen oxides (precursors to ozone) and particulate matter.  These standards are fleetwide averages, and do not apply to individual pieces of equipment, but they steadily decline over a period of eleven years, and in each year in which a construction contractor cannot meet the standards, the firm has to retrofit, repower, replace and/or retire a certain percentage of its horsepower.   When it finalized the rule, the state estimated that the cost of compliance would be $3.4 billion.  The state's construction industry originally estimated that the cost would reach $13 billion, and its latest estimates are even higher.  This spring, the new rule's reporting requirements started to take effect, and CARB has now amassed a wealth of new data on the off-road equipment in the state's construction industry.  More importantly, the agency has agreed to share much of that recently collected information with AGC.  The agency staff has an October deadline for determining how current emissions compare with the agency's original projections, in the wake of the economic downturn. AGC met with the agency staff in mid-April and again in mid-June, and it appears that the agency is willing to postpone any decision on AGC's petition to reopen the rule at least until the agency can take a hard look at the latest information.  Major issues are far from resolved, and AGC has made a point of retaining all of its legal options, but in recent meetings, the agency staff has been forthcoming and generally cooperative.  Stay tuned! For more information, contact Mike Kennedy at (703) 837-5335 or kennedym@agc.org.