The California Air Resources Board (CARB) recently announced that until further notice, no enforcement action will be taken for noncompliance with the March 1, 2010, deadline for large fleets (exceeding 5,000 hp) across the state to meet the first of California's strict exhaust standards, per CARB's new "diesel retrofit" requirements. CARB also announced that - in accordance with AGC's request - it will hold a public hearing on March 11, 2010, in Sacramento, on the question of whether the off-road regulations should be further modified to account for the down economy and subsequent emissions reductions. These actions come in direct response to the emergency legal petition that AGC filed Jan. 11 with CARB requesting a two-year extension of the rule's fleet performance requirements to avoid needless job losses for the already hard hit California construction industry. To read CARB's response letter to AGC, click here.
CARB's Executive Officer released a statement informing California contractors of the Board's decision to delay enforcement of its off-road diesel rule "primarily due to the fact that CARB has not received authorization from U.S. EPA to enforce the emissions related requirements of the regulations." In AGC's own press release issued the same day, AGC's General Counsel Mike Kennedy stated that CARB's "decision to 'delay' enforcement of the rule until a waiver is issued is as legally meaningless as it is economically damaging. By committing to begin enforcement as soon as the federal government allows, the Board is only acknowledging legal reality, not providing relief." Pursuant to the Federal Clean Air Act, California needs approval (i.e., a so-called "waiver of federal preemption") from U.S. EPA before it can legally enforce the state's engine emissions standards that go well beyond current federal requirements. To date, U.S. EPA has yet to give California permission to enforce the standards. AGC has submitted lengthy comments to EPA strongly opposing CARB's request for federal approval of its new standards.
Public Hearing
At the March 11 public hearing, CARB will gather more factual information on the impact of the global recession on regulated construction companies and their equipment to determine if further changes to the off-road diesel engine emissions standards are needed. (CARB did make a minor amendment to the rule back in July 2009.)
AGC has presented CARB with substantial empirical data demonstrating that the downturn in California's economic conditions and the resulting drop in construction activity have made the rule unnecessary. AGC has pointed out that California's own inventory data makes clear that off-road equipment operators will be well under the state's aggressive diesel emissions limits for years to come without this rule. At the March 11 hearing, AGC plans to ask the members of the Air Resources Board, which oversees the state's rulemaking activities, to immediately provide relief for the thousands of construction workers from this unneeded rule.
Unless blocked, the CARB rule will require California's contractors to retrofit, repower, retire and/or replace much of their off-road equipment. The Federal Clean Air Act prohibits other states from implementing their own off-road diesel emissions rules but allows them to adopt and enforce rules "identical" to California's regulations (Section 209(e)(2)(B)). A study conducted by AGC shows that 32 states, including Arizona, Georgia, Illinois, Maryland, New York, Pennsylvania and Texas, are poised to use the California requirements. Because of the impact on contractor's nationwide, AGC joined with the AGC of California and San Diego AGC Chapter in December 2008 in a collective effort to stop the rule or significantly modify it.
For more information, please contact AGC's Michael Kennedy at kennedym@agc.org.
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