State of California 

AIR RESOURCES BOARD 

Resolution 05-62 

December 8, 2005 

Agenda Item No.: 05-12-4 

WHEREAS, sections 39600 and 39601 of the Health and Safety Code authorize the Air 

Resources Board (ARB or Board) to adopt standards, rules and regulations and to do 

such acts as may be necessary for the proper execution of the powers and duties 

granted to, and imposed upon, the Board by law; 

WHEREAS, section 39002 of the Health and Safety Code provides that the control of air 

pollution from vehicular sources, except as otherwise provided in Division 26 of the 

Health and Safety Code, shall be the responsibility of ARB; 

WHEREAS, section 41511 of the Health and Safety Code provides that for the purpose 

of carrying out its duties, ARB may adopt rules and regulations to require the owner or 

the operator of any pollution emission source to take such action as ARB may 

determine to be reasonable for the determination of the amount of emissions from such 

source; 

 

WHEREAS, in section 43000 of the Health and Safety Code, the Legislature has 

declared that the emissions of air pollutants from motor vehicles is the primary cause of 

air pollution in many parts of the State; also, the State has the responsibility to establish 

uniform procedures for compliance with standards which control or eliminate those air 

pollutants, vehicle emission standards apply to new and used motor vehicles equipped 

with motor vehicle pollution control devices; 

WHEREAS, sections 43013(a) and 43101 of the Health and Safety Code authorize the 

Board to adopt motor vehicle emission standards and in-use performance standards, 

and test procedures, which it finds to be necessary, cost-effective, and technologically 

feasible; 

WHEREAS, sections 43013(b) of the Health and Safety Code, authorizes ARB, 

consistent with 43013(a), to adopt standards and regulations for light-, medium-, and 

heavy-duty vehicles and off-road engine categories;

WHEREAS, section 43018 of the Health and Safety Code further directs the Board to 

endeavor to achieve the maximum degree of emission reduction possible from vehicular 

and other mobile sources to accomplish the attainment of State ambient air quality 

standards by the earliest practicable date and to adopt standards and regulations that 

will result in the most cost-effective combination of control measures on all classes of 

motor vehicles; 
Resolution 05-62 2

WHEREAS, under section 39650 of the Health and Safety Code, the Legislature finds 

and declares that it is the public policy of the State that emissions of toxic air 

contaminants should be controlled to levels that prevent harm to the public health; 

WHEREAS, on August 27, 1998, the Board identified emissions from diesel fueled 

engines (diesel PM) as a toxic air contaminant pursuant to article 3 (commencing with 

section 39650), chapter 3.5, part 2, division 26 of the Health and Safety Code; 

WHEREAS, in identifying diesel PM matter as a toxic air contaminant, the Board 

determined, pursuant to section 39662 of the Health and Safety Code, that there is not 

sufficient scientific evidence to support identification of a threshold level below which no 

significant adverse health effects are anticipated; this is codified in title 17, California 

Code of Regulations (CCR), section 93000; 

WHEREAS, pursuant to section 39669.5(a) of the Health and Safety Code, the Office of 

Environmental Health Hazard Assessment has listed diesel PM and other compounds 

associated with diesel exhaust as possibly causing infants and children to be especially 

susceptible to illness; 

WHEREAS, pursuant to section 39665 of the Health and Safety Code, ARB staff 

prepared a comprehensive risk reduction plan (Diesel Risk Reduction Plan) to 

significantly reduce PM emissions from diesel-fueled engines and vehicles, which the 

Board approved on September 28, 2000; 

WHEREAS, sections 39658, 39665, 39666, and 39667 of the Health and Safety Code 

authorize the Board to establish airborne toxic control measures (ATCM) for substances 

identified as toxic air contaminants in accordance with specified criteria; 

WHEREAS, in fulfilling the requirements of the aforementioned sections set forth in the 

paragraph immediately above, the Board is required to consider adoption of an ATCM 

for all sources to achieve the maximum possible reduction in public exposure based on 

its prior determination not to specify a threshold exposure level for diesel PM under 

section 39662 of the Health and Safety Code; 

WHEREAS, an ATCM for an existing source, developed pursuant to section 39667 of 

the Health and Safety Code, is required to be based on application or utilization of the 

best available control technologies (BACT) or more effective control methods, unless 

the Board determines, based on an assessment of risk, that an alternative level of 

emission reduction is adequate or necessary to prevent an endangerment of public 

health; 
Resolution 05-62 3

WHEREAS, sections 39674, 39675, 42400, 42400.1, 42400.2, 42400.3,42400.4, 

42400.8, 42402, 42402.1, 42402.3, 42402.4, 42403, 42410, 43016 and 43017 of the 

Health and Safety Code authorize the Board to request that state and local prosecutors 

seek criminal prosecution, civil and administrative penalties, and injunctive relief for 

violations of adopted ARB regulations and ATCMs; 

WHEREAS, diesel-fueled engines associated with mobile cargo handling equipment are 

sources of diesel PM; 

WHEREAS, to augment the general information and recommendations provided in the 

Diesel Risk Reduction Plan, ARB staff met and worked with affected private industry, 

federal, State, and local public agencies, and the public; 

WHEREAS, with the information and comments received from such meetings, ARB staff 

prepared a report, entitled “Staff Report: Initial Statement of Reasons for Proposed 

Rulemaking – Regulation for Mobile Cargo Handling Equipment at Ports and Intermodal 

Rail Yards,” released October 21, 2005 (ISOR); 

WHEREAS, the ISOR further identified and explained the need and appropriate degree 

of regulation for diesel PM that was earlier addressed in the Diesel Risk Reduction Plan 

required by Health and Safety Code section 39665(a); 

WHEREAS, the ISOR discussed, to the extent data were reasonably available, the 

factors specified in Health and Safety Code section 39665(b) in adopting the Diesel 

Risk Reduction Plan, including: estimates of emissions, exposure, and potential health 

effects due to the operation of diesel-fueled engines associated with mobile cargo 

handling equipment, feasible control options, potential environmental impacts, cost of 

compliance for all owners and/or operators of mobile cargo handling equipment at ports 

and intermodal rail yards, and cost impacts for ARB implementation of the proposed 

regulation; 

WHEREAS, the ISOR presents staff’s proposal that the Board adopt a proposed 

regulation for mobile cargo handling equipment at ports and intermodal rail yards, 

title 13, CCR, section 2479, as set forth in Attachment A to the ISOR and Attachment A 

hereto; staff concluded that the proposed regulation would reduce diesel PM and oxides 

of nitrogen (NOx) emissions and associated cancer and other adverse health effects 

statewide and significantly reduce such emissions and adverse health effects near 

California’s ports and intermodal rail yards where mobile cargo handling equipment 

operate; 

WHEREAS, concepts and draft proposals regarding the proposed regulation were 

discussed at six public workshops, four public workgroup meetings, and five public 

outreach meetings; 
Resolution 05-62 4

WHEREAS, in accordance with the authority set forth above, staff evaluated various 

control options, including: 

Reliance on existing new engine standards and voluntary programs with no 

additional control of in-use cargo handling equipment engines; and 

Adopting requirements for yard trucks only and not addressing the 

non-yard truck equipment; 

WHEREAS, staff estimated the overall cost effectiveness associated with compliance 

with the proposed regulation to be approximately $41 per pound of diesel PM reduced, 

or with reductions of NOx included, $21 per pound of diesel PM reduced and $1 per 

pound of NOx reduced; 

WHEREAS, no significant compliance costs are expected for federal, State, or local 

public agencies because few of these agencies own or operate mobile cargo handling 

equipment that would be subject to the proposed regulation; 

WHEREAS, some initial costs associated with implementation and enforcement of the 

proposed regulation are expected to be incurred by ARB, which may include the 

addition of two to three personnel, depending on the compliance routes chosen; 

WHEREAS, the California Environmental Quality Act (CEQA), section 21080.5 of the 

Public Resources Code and Board regulations at title 17, CCR, section 60006 require 

that no project that may have significant adverse environmental impacts be adopted as 

originally proposed if feasible alternatives or mitigation measures are available to 

reduce or eliminate such impacts; 

WHEREAS, a public hearing and other administrative proceedings have been held in 

accordance with the provisions of chapter 3.5 (commencing with section 11340), part 1, 

division 3, title 2 of the Government Code; 

WHEREAS, pursuant to definitions of vehicular source, motor vehicle, and vehicle 

respectively set forth in sections 39060, 39040, and 39059 of the Health and Safety 

Code, most, if not all, cargo handling equipment are vehicular sources that fall 

exclusively within the jurisdiction of ARB; 

To the extent that some mobile cargo handling equipment could be considered 

nonvehicular sources, ARB has authority under sections 39666, 43013(b), and 43018 to 

adopt the proposed regulation; 
Resolution 05-62 5

WHEREAS, in consideration of the ISOR, written comments, and public testimony it has 

received, the Board finds that: 

Adverse health and environmental impacts result from the emissions of diesel PM 

and NOx from mobile cargo handling equipment operation at ports and intermodal 

rail yards, and mitigation measures are necessary to reduce emissions of these air 

contaminants; 

The proposed regulation is expected to provide flexibility in the choice of 

compliance options to control emissions, reduce exposure, and protect health 

more effectively than any other possible alternative evaluated in accordance with 

the authority vested under the Health and Safety Code by requiring that, on or after 

January 1, 2007, the owners or operators of newly purchased, leased or rented 

mobile cargo handling equipment (i.e., equipment acquired and placed into service 

after December 31, 2006) will be required to have the equipment meet the 

following emission standards: 

Yard trucks must be equipped with 2007 or later model-year certified on-road 

engines for the year of manufacture of the vehicle or, when available, engines 

certified to the Tier 4 off-road emission standards; 

Non-yard truck cargo handling equipment must be equipped with certified 

Tier 4 off-road engines or the highest certified tier level available for a specific 

type of equipment, and if Tier 4 engines are not available, the engines must 

equipped with the most stringent diesel emission control strategies (VDECS); 

To meet the objectives set forth above, the proposed regulation appropriately 

further requires that on or after January 1, 2007, owners and operators of in-use 

mobile cargo handling equipment (i.e., equipment that was part of an owner’s or 

operator’s port terminal or intermodal rail yard fleet on or before December 31, 

2006) must begin phasing in a selection of engine emission standards based on 

BACT: 

For yard trucks, BACT will be determined by, among other things, the specific 

model year of the engine, whether the engine was certified as on-road or offroad, the size of the in-use fleet, and whether VDECS had been installed on 

the engine prior to December 31, 2006; 

For non-yard truck mobile cargo handling equipment, BACT will be 

determined, from among other things, the category of the non-yard truck 

mobile cargo handling equipment, the size of the in-use fleet, and the model 

year of the engine; 

For purposes of the health, safety, and welfare of the people of California, the 

proposed regulation appropriately requires that owners and operators of mobile 

cargo handling equipment comply with the following compliance schedule: 
Resolution 05-62 6

By December 31, 2006, start maintaining detailed records of their new and inuse cargo handling fleets; 

By January 31, 2007, and before each and every applicable compliance date 

thereafter, submit a compliance plan demonstrating the control strategy used 

for each identified cargo handling equipment subject to the regulation; 

By January 31,2007, and by every January 31 thereafter through 2016, submit 

an annual report including company contact information and the location of the 

port or intermodal rail yard at which covered equipment is operated; 

The proposed regulation would reduce exposure to potential diesel PM emissions 

and associated cancer and other adverse health effects in all communities near 

ports and intermodal rail yards where mobile cargo handling equipment operate; 

The economic impacts of the proposed regulation have been analyzed as required 

by California law, and the conclusions and supporting documentation for this 

analysis are set forth in the ISOR; 

The benefits of the proposed regulation to public health and the environment justify 

the costs of compliance, implementation, and enforcement; and 

No alternatives considered or that have otherwise been identified and brought to 

the attention of ARB would be more effective carrying out the purpose for which 

the regulation is proposed, or would be as effective and less burdensome to the 

affected private businesses and public agencies than the proposed regulation; 

WHEREAS, the Board further finds, in accordance with Health and Safety Code 

section 39650(e), that while absolute and undisputed scientific evidence may not be 

available to determine the exact risk from diesel PM from diesel-fueled engines 

associated with mobile cargo handling equipment, it is necessary to take action to 

protect public health and that the maximum feasible emission reductions permitted by 

law should be obtained; 

WHEREAS, pursuant to Health and Safety Code section 39667, the Board further finds 

that the proposed in-use emission standards approved herein are based on utilization of 

BACT identified within the time scheduled for compliance; 

WHEREAS, pursuant to section 43013(a) and (b) of the Health and Safety Code, the 

Board further finds that the in-use emission standards approved herein are necessary, 

cost-effective, and technologically feasible within the time provided for compliance; and 

WHEREAS, the Board further finds based on its independent judgment and analysis of 

the entire record before it that: 
Resolution 05-62 7

With respect to the requirements of CEQA, the proposed regulation will not have 

a significant adverse effect on the environment, but will result in the reduction of 

diesel PM and NOx; 

Having determined that the proposed regulation will not adversely affect the 

environment, but rather provide environmental benefits that are achieved both 

statewide and locally, the proposed regulation should not adversely impact any 

community in the State, especially low-income or minority communities; 

WHEREAS, section 209(b) of the federal Clean Air Act (CAA) requires that California 

request a waiver from the U.S. Environmental Protection Agency (U.S. EPA) prior to 

enforcing emission standards or other requirements relating to the control of emissions 

from new motor vehicles; 

WHEREAS, on April 22, 2003, U.S. EPA granted California a waiver for new dieselpowered medium-duty vehicles meeting the LEV II emission standards (LEV II waiver, 

68 Fed.Reg. 18811), and on August 25, 2005, U.S. EPA granted California a waiver for 

diesel-powered heavy-duty vehicle engine emission standards for 2007 and subsequent 

model-year engines (2007 HDDE waiver, 70 Fed.Reg. 50322). 

WHEREAS, section 209(e)(2) of the CAA requires that California seek authorization 

from U.S. EPA prior to enforcing emission standards or other requirements relating to 

the control of emissions from new and in-use nonroad engines (of which off-road diesel 

engines are a subpart) not otherwise preempted by section 209(a) or (e)(1); and 

WHEREAS, under the CAA, U.S. EPA does not have authority to establish emission 

standards for in-use nonroad vehicles and equipment. 

NOW, THEREFORE, BE IT RESOLVED that the Board hereby approves for adoption 

new section 2479 of article 3, chapter 3, division 3, title 13, CCR, as set forth in 

Attachment A hereto with the following modifications: 

Modify section 2479(c), as appropriate, to exclude military tactical support cargo 

handling equipment from coverage of the regulation; and 

Modify section 2479(h) to require that the alternative compliance plan (ACP) 

process include provisions for public comment on all elements of any proposed 

ACP request submitted to the Executive Officer for approval; that in granting an 

ACP the Executive Officer shall ensure that at least comparable emission 

reductions be achieved at the same facility where the equipment covered by the 

regulation resides; that the Executive Officer issue a written decision on any 

requested ACP; and that the decision address all relevant comments received 

regarding the granting of the ACP. 

BE IT FURTHER RESOLVED that the Board directs the Executive Officer to incorporate 

into the approved regulation the modifications described above, with such other 
Resolution 05-62 8

conforming modifications as may be appropriate, and then to adopt the new regulation, 

after making the modified regulatory language available for public comment for a period 

of 15 days, provided that the Executive Officer shall consider such written comments 

regarding the modifications as may be submitted during this period, shall make further 

modifications as may be appropriate in light of the comments received, and shall 

present the regulations to the Board for further consideration if the Executive Officer 

determines that this is warranted. 

BE IT FURTHER RESOLVED that the Board hereby determines, in accordance with 

CAA section 209(b), that to the extent the regulation approved herein affects new motor 

vehicle or motor vehicle engines as defined in CAA section 216(2), the regulation falls 

within the scope of the existing LEV II and 2007 HDDE waiver, in that the regulation 

does not undermine the Board’s previous determination that its LEV II and 2007 HDDE 

standards, in the aggregate, are as protective of public health and welfare as 

comparable federal standards, does not affect the consistency of California’s 

requirements with section 202(a) of the CAA, and raises no new issues affecting the 

Administrator’s previous waiver determinations.

BE IT FURTHER RESOLVED that the Board hereby determines, in accordance with 

CAA section 209(e)(2), that to the extent the regulation approved herein affects nonroad 

vehicles or nonroad engines as defined in CAA section 216(10) and (11), the emission 

standards and other requirements related to the control of emissions in the regulation 

approved herein are, in the aggregate, at least as protective of public health and welfare 

as applicable federal standards, California needs its nonroad emission standards to 

meet compelling and extraordinary conditions, and the standards and accompanying 

enforcement procedures approved herein are consistent with CAA section 209. 

BE IT FURTHER RESOLVED that the Board directs ARB staff to: 

Pursuant to the determinations set forth above, file a request that U.S. EPA 

confirm or determine that the adopted regulation, as applicable, falls within the 

scope of the existing 2007 HDV and LEV II waivers for new motor vehicles and 

engines pursuant to CAA section 209(b), or meets the requirements for 

authorization in CAA section 209(e)(2); 

Develop implementation guidance as appropriate – with special direction to 

develop, as part of a public process, guidance to implement the ACP process for 

non-yard truck mobile cargo handling equipment, title 13 CCR, section 2479(h) – 

and report back to the Board in approximately six months on the status of the 

development of the ACP guidance and semi-annually on the number of ACP 

applications that have been received and how those applications have been 

handled; 

Work with industry groups and affected businesses to educate affected owners 

and operators of mobile cargo handling equipment at ports and intermodal rail 

yards about the requirements of the regulation; 
Resolution 05-62 9

Form a technology working group to monitor the feasibility of retrofit emission 

controls, encourage manufacturers to apply for ARB verification, share 

information on successful applications of non-verified emission control strategies, 

and address concerns regarding the use of VDECS in non-yard truck mobile 

cargo handling equipment; 

Monitor implementation of the adopted regulation, including advancements in 

emission control technologies and the application of BACT; 

Update the emissions inventory for off-road equipment with data submitted by 

owners and operators of mobile cargo handling equipment as part of the 

reporting requirements of the adopted regulation; and 

Ensure compliance with the regulation through facility audits and other 

enforcement actions as necessary. 

I hereby certify that the above is a true 

and correct copy of Resolution 05-62, as 

adopted by the Air Resources Board. 

_______________________________ 

Lori Andreoni, Clerk of the Board 
Resolution 05-62 

December 8, 2005 

Identification of Attachments to the Board Resolution

Attachment A: Proposed Regulation for Mobile Cargo Handling Equipment 

at Ports and Intermodal Rail Yards (division 3, chapter 3, 

article 4, section 2479, title 13, California Code of 

Regulations) as set forth in Appendix A to the Initial 

Statement of Reasons, released October 21, 2005.