- 1 - RESOLUTION NO. 08-16

A Resolution of the South Coast Air Quality Managem ent District Governing Board certifying the Final Environmental Assessment for Proposed Rule 2449 – Control of Oxides of Nitrogen from Off- Road Diesel Vehicles.

A Resolution of the Governing Board to opt-in to Ti tle 13 of the California Code of Regulations, Section 2449.3 –Sur plus Off-Road Opt-In for NOx (SOON) Program and Providing that the SOON Program is mandatory after April 2, 2009.

A Resolution of the Governing Board adopting Propos ed Rule 2449 - Control of Oxides of Nitrogen from Off-Road Diesel Vehicles.

WHEREAS , the South Coast Air Basin is classified as a “sev ere-17” nonattainment area for ozone (8-hour) with an attai nment date of 2021 and nonattainment area for fine particulate matter (PM2 .5) with an attainment date of 2010, and the Coachella Valley is classified as a “seriou s” ozone (8-hour) nonattainment area with an attainment date of 2013, in accordance with federal Clean Air Act; and

WHEREAS , the South Coast Air Quality Management District (SCAQMD) has jurisdiction over the South Coast Air Basin and the desert portion of Riverside County known as the Coachella Valley; and

WHEREAS , the SCAQMD is committed to comply with the requirements of the federal Clean Air Act; and

WHEREAS , the SCAQMD Governing Board is committed to achiev ing

healthful air in the South Coast Air Basin and all other parts of the District at the earliest possible date; and

WHEREAS , the California Air Resources Board (CARB) and the U.S. Environmental Protection Agency (EPA) have the resp onsibility to control emissions from mobile sources, representing a significant fra ction of ozone precursor emissions in 2014; and

WHEREAS , significant emission reductions must be achieved from mobile sources under state and federal jurisdiction for the South Coast Air Basin to attain federal air quality standards; and- 2 - WHEREAS , the SCAQMD Governing Board finds there is a need to take immediate action regarding a state of emergency for the South Coast Air Basin to address the air quality health crisis; and

WHEREAS , the SCAQMD Governing Board directs staff to move expeditiously to adopt and implement feasible new c ontrol measures to achieve longterm reductions while meeting all applicable public notice and other regulatory development requirements; and

WHEREAS , the 2007 Air Quality Management Plan (AQMP) for t he

South Coast Air Basin identifies substantial new em ission reductions needed to attain the more stringent federal ambient air quality stan dards for 8-hr ozone and the annual fine particulate matter (PM2.5) promulgated by the U.S. EPA; and

WHEREAS , the 2007 State Implementation Plan (SIP) for the South Coast Air Basin adopted by the CARB Board identifie s a control measure obtaining 10.5 tons per day of NOx emission reductions and a control measure to obtain an additional 12 tons per day of NOx emission reductio ns from off-road diesel vehicles by 2014; and

WHEREAS , the CARB Board adopted the In-Use Off-Road Diesel Vehicle regulation (Title 13, California Code of Re gulation (CCR), Section 2449 et.

seq. ) on July 26, 2007, which includes provisions that allow air districts to achieve

additional NOx reductions from in-use off-road heav y-duty diesel vehicles operating within its air basin by opting-in to the provisions of Section 2449.3, Title 13, CCR and providing incentive funding to fleets that would be required to apply for funds and, if received, use the funds to achieve real, quantifiab le, and enforceable surplus NOx emission reductions; and

WHEREAS , the final form of Title 13, CCR, Sections 2449 et. seq. is subject to a 15-day public comment period prior to submission to the Secretary of State for certification; and

WHEREAS , Title 13, CCR, Section 2449.3 requires air distri cts to declare whether the SOON Program would be mandatory or voluntary after April 2, 2009; and

WHEREAS , Title 13, CCR, Section 2449.3 requires air distri cts to develop additional administrative guidelines to imp lement the regulation; and

WHEREAS , the Board adopted a Policies and Procedures Manua l for Administration of the Carl Moyer Program, which con tains the SCAQMD’s procedures- 3 -

for selection, implementation, monitoring and enfor cement of projects funded by the Carl Moyer Program; and

WHEREAS , the SCAQMD Policies and Procedures Manual for Administration of the Carl Moyer Program serves as the basis for the development of the additional administrative guidelines necessary to implement the provisions of Title 13, CCR, Section 2449.3; and

WHEREAS , a Surplus Opt-in Option for NOx (SOON) Implementa tion Working Group, consisting of affected private indus try, federal, state, and local public agencies, was formed to solicit input and comments on the development of the additional administrative guidelines; and

WHEREAS , SCAQMD staff has conducted a public workshop, thr ee SOON Implementation Working Group meetings, and out reached to over 16,000 potential affected parties;

WHEREAS , the SCAQMD Governing Board has determined with certainty that Proposed Rule 2449 – Control of Oxid es of Nitrogen from Off-Road Diesel Vehicles is considered a “project” pursuant to the terms of the California Environmental Quality Act (CEQA); and

WHEREAS , the SCAQMD has had its regulatory program certifi ed pursuant to Public Resources Code Section 21080.5 a nd has conducted CEQA review pursuant to such program (AQMD Rule 110); and

WHEREAS , SCAQMD staff has prepared a draft Environmental Assessment (EA) pursuant to its certified regulator y program and CEQA Guidelines Section 15252, setting forth the potential environm ental consequences of Proposed Rule 2449 – Control of Oxides of Nitrogen from Off-Road Diesel Vehicles; and

WHEREAS , the Draft EA was circulated for a 30-day public r eview and comment period between December 20, 2007 and Januar y 18, 2008, no comment letters were received relative to the Draft EA analysis, an d the Draft EA has been revised such that it is now a Final EA; and

WHEREAS , it is necessary that the adequacy of the Final EA be determined by the Governing Board prior to its cert ification; and

WHEREAS, the SCAQMD Governing Board voting on Proposed Rule 2449 – Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles has reviewed and considered the Final EA prior to its c ertification; and- 4 - WHEREAS, the SCAQMD Governing Board finds that the problem that the rule will alleviate is emissions of NOx, which will promote attainment of the national and state ambient air quality standards; a nd

WHEREAS , a Mitigation Monitoring Plan pursuant to Public R esources Code Section 21081.6, has not been prepared since n o mitigation measures are necessary; and

WHEREAS, the SCAQMD Governing Board finds and determines, taking into consideration the factors in Section (d )(4)(D) of the Governing Board Procedures, that the modifications adopted which ha ve been made to Proposed Rule 2449 – Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles since the notice of public hearing was published do not s ignificantly change the meaning of the proposed project within the meaning of Health a nd Safety Code Section 40726 and would not constitute significant new information re quiring recirculation of the Draft CEQA document pursuant to CEQA Guidelines Section 15073.5; and

WHEREAS , California Health and Safety Code Section 40727 r equires that prior to adopting, amending or repealing a rul e or regulation, the SCAQMD Governing Board shall make findings of necessity, authority, clarity, consistency, nonduplication, and reference based on relevant inform ation presented at the public hearing and in the staff report; and

WHEREAS , the SCAQMD Governing Board obtains its authority to adopt, amend, or repeal rules and regulations from Sections 39002, 40000, 40001, 40440, 40441, 40702, 40725 through 40728, 41508, an d 41700 of the California Health and Safety Code; and

WHEREAS , the SCAQMD Governing Board has determined that th ere is a problem that Proposed Rule 2449 – Control of Oxid es of Nitrogen Emissions from Off-Road Diesel Vehicles will help alleviate, i.e., the Basin does not meet federal and state ambient air quality standards for ozone and f ine particulate matter, and Proposed Rule 2449 will promote attainment of these standard s; and

WHEREAS , the SCAQMD Governing Board has determined that a need exists to adopt Proposed Rule 2449 – Control of Oxi des of Nitrogen Emissions from Off-Road Diesel Vehicles, to reduce emissions of ni trogen oxides which is a precursor to ozone and fine particulate matter; and

WHEREAS , the SCAQMD Governing Board has determined that Proposed Rule 2449 – Control of Oxides of Nitrogen Emissions from Off-Road Diesel- 5 -

Vehicles, as proposed to be adopted is written or d isplayed so that its meaning can be clearly understood by the persons directly affected by it; and

WHEREAS, the SCAQMD Governing Board finds that there has be en a consideration of socioeconomic impacts in this rule making and a good faith effort to minimize these impacts; and

WHEREAS, the SCAQMD Governing Board has determined that the SOON Program does not establish any new emissions o r monitoring requirements; and

WHEREAS , the SCAQMD Governing Board has determined that Proposed Rule 2449 – Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles, as proposed to be adopted is consistent w ith, and not in conflict with or contradictory to, existing federal or state statute s, court decisions, or regulations; and

WHEREAS , the SCAQMD Governing Board has determined that Proposed Rule 2449 – Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles, as proposed to be adopted does not duplic ate the requirements of existing state or federal regulation and the proposed rule is nece ssary and proper to execute the powers and duties granted to, and imposed upon, the District; and

WHEREAS , the SCAQMD Governing Board has determined that Proposed Rule 2449 – Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles, as proposed to be adopted, references the following statutes which the SCAQMD hereby implements, interprets or makes speci fic: Health and Safety Code 40001(a) (rules to meet air quality standards); 404 40(a) (rules to carry out the plan); 40702 (adoption of rules and regulations); and

WHEREAS , Health and Safety Code Section 40727.2 requires t he SCAQMD to prepare a written analysis of existing fe deral air pollution control requirements applicable to the same source type bei ng regulated whenever it adopts, or amends a rule, such that the SCAQMD’s analysis of P roposed Rule 2449 is included in the staff report; and

WHEREAS , the SCAQMD Governing Board relies on the economic analysis performed by CARB in its adoption of Title 13, CCR, Section 2449.3, since Proposed Rule 2449 simply references Title 13, CCR, Section 2449.3 in total; and

WHEREAS , the SCAQMD Governing Board has considered the socioeconomic impact assessment conducted by CARB a nd has made a good faith effort to minimize such impacts in the development of the additional administrative guidelines; and- 6 - WHEREAS , the SCAQMD Governing Board has determined that Proposed Rule 2449 should be adopted for the reason s contained in the staff report; and

WHEREAS , a public hearing has been properly noticed in acc ordance with the provisions of Health and Safety Code Secti on 40725; and

WHEREAS , the SCAQMD Governing Board has held a public hear ing in accordance with all provisions of law; and

WHEREAS , the SCAQMD Governing Board specifies the Assistan t Deputy Executive Officer of the Mobile Source Divis ion as the custodian of the Rule

2449 documents or other materials which constitute the record of proceedings upon which the adoption of this proposed project is base d, which are located at the SCAQMD, 21865 Copley Drive, Diamond Bar, California ; and

NOW, THEREFORE, BE IT RESOLVED, that the SCAQMD Governing Board hereby certifies, pursuant to the a uthority granted by law, the Final EA for Proposed Rule 2449 – Control of Oxides of Ni trogen Emissions from Off-Road Diesel Vehicles.; and

BE IT FURTHER RESOLVED , that because no significant adverse environmental impacts were identified as a result o f implementing Proposed Rule 2449 – Control of Oxides of Nitrogen Emissions from Off- Road Diesel Vehicles, a Statement of Findings, a Statement of Overriding Consideratio ns, and a Mitigation Monitoring Plan are not required; and

BE IT FURTHER RESOLVED , that the SCAQMD Governing Board does hereby opt-in to Title 13, California Code of Regulation, Section 2449.3 –Surplus Off-Road Opt-In for NOx (SOON) Program.

BE IT FURTHER RESOLVED , that the SCAQMD Governing Board does hereby declare that the SOON Program will be m andatory after April 2, 2009.

BE IT FURTHER RESOLVED , that the SCAQMD Governing Board does hereby adopt, pursuant to the authority grante d by law, Rule 2449 – Control of Oxides of Nitrogen Emissions from Off-Road Diesel V ehicles, as set forth in the attached and incorporated herein by reference.

BE IT FURTHER RESOLVED , that the SCAQMD Governing Board does hereby direct staff to submit this Adopting Re solution, which formally opts in to Title 13, California Code of Regulations, Section 2 449.3 and the Rule 2449- 7 -

Administrative Guidelines as required by Title 13, California Code of Regulation, Section 2449.3, to the California Air Resources Boa rd for approval.

BE IT FURTHER RESOLVED , that the SCAQMD Governing Board does hereby direct staff to continue the SOON Imple mentation Working Group to assist in implementing the requirements of Rule 2449 – Con trol of Oxides of Nitrogen

Emissions from Off-Road Diesel Vehicles.

BE IT FURTHER RESOLVED , that the SCAQMD Governing Board does hereby direct staff to work with affected off- road diesel vehicle fleets on an individual basis to facilitate submittal of complia nce plans that demonstrate how fleets would comply in harmony with the statewide regulati on and the SOON regulation to

achieve emission reduction benefits to the maximum extent for both regulations.

BE IT FURTHER RESOLVED , that the SCAQMD Governing Board does hereby direct staff to monitor implementation of Rule 2449 and provide an annual report on progress in achieving additional NOx emis sion reductions from off-road diesel vehicles to the Governing Board Mobile Source Commi ttee. As part of the annual report, or as otherwise needed, staff shall identif y any revisions to the Rule 2449 Administrative Guidelines necessary to address impl ementation issues that may arise including revision of CARB’s applicable regulations . Any revisions to the Rule 2449 Administrative Guidelines would be considered by th e SCAQMD Governing Board prior to or at the same time a Program Announcement is released for future funding.

BE IT FURTHER RESOLVED , that the SCAQMD Governing Board hereby directs the Executive Officer to report to t he Governing Board at a regularly noticed meeting on any substantial changes made to the CARB’s SOON Regulation by the California Air Resources Board, and if such sub stantial changes do occur, the

Executive Officer shall recommend whether to amend this regulation. In the absence of any substantial changes, the Governing Board hereby authorizes the Executive Officer to conform this rule to any less non-substantial ch anges made to CARB’s SOON Regulation by the California Air Resources Board.

AYES: Antonovich, Campbell, Cacciotti, Carney, Love ridge, Lyou, Ovitt, Perry,

Pulido, Reyes Uranga, Wilson, and Yates.

NOES: None.

ABSENT: Burke.