State of California

AIR RESOURCES BOARD

Resolution 07-10

March 22, 2007

Agenda Item No: 07-3-4

WHEREAS, sections 39600 and 39601 of the Health and Safety Code authorize the Air Resources Board (the Board or ARB) to adopt standar ds, rules and regulations and to do such acts as may be necessary for the proper exe cution of the powers and duties granted to and imposed upon the Board by law;

WHEREAS, the Board adopted an Airborne Toxic Contro l Measure for Diesel-Fueled Portable Engines (Portable ATCM), and approved Reso lution 04-7 on February 26,

2004;

WHEREAS, in accordance with section 41750 et seq. o f the Health and Safety Code, the Board has established, by regulation, a Statewi de Portable Equipment Registration Program (PERP) providing for the voluntary registra tion of portable engines and associated equipment, establishing emission limits and emission control requirements,

and a fee schedule to cover the costs of administer ing and enforcing PERP, including a fee for the recovery of the cost of district enforc ement activities;

WHEREAS, section 41752(e) of the Health and Safety Code provides that the Board may periodically revise and update the Statewide Po rtable Equipment Registration Program Regulation (Statewide Regulation), includin g but not limited to, revising and updating a determination of the Best Available Cont rol Technology (BACT) for portable engines;

WHEREAS, the Board adopted the Statewide Regulation and approved Resolution 97-16 on March 27, 1997;

WHEREAS, the Board adopted amendments to the Statew ide Regulation and approved Resolution 06-18 on June 22, 2006;

WHEREAS ARB has amended the Statewide Regulation th ree times since the program’s inception and each time ARB staff conduct ed outreach before and after each regulatory action including workshops throughout th e State, teleconferences, and meetings with interested parties;

WHEREAS, prior to the most recent amendments, the A RB staff mailed 25,000 informational brochures about the PERP program to i ndividuals licensed by the California Contractors State License Board; 1,600 t o companies on ARB’s electronic listserve for the Statewide Regulation; 1,200 to th e Construction Industry Air QualityResolution 07-10 2

Coalition (CIAQC); and electronic copies to two pub lic works associations, 35 air districts, and approximately 1,100 public works age ncies for forwarding to other affected industry and stakeholders;

WHEREAS, the Board received comments from affected industry during the ARB’s September 28, 2006 Board meeting that raised concer ns regarding requirements of the Statewide Regulation and the Portable ATCM;

WHEREAS, despite the outreach and noticing efforts, some owners and operators of portable equipment have stated that they were not a ware of the requirements to purchase cleaner complying engines and obtain distr ict permits to operate or registration as provided in the Statewide Regulatio n;

WHEREAS, owners and operators of portable equipment that did not purchase cleaner complying engines and obtain district permits to op erate or registration, as provided in the Statewide Regulation, operated at a competitive advantage compared to owners and operators that did pay registration or permitti ng fees and/or purchased cleaner complying engines;

WHEREAS, during the periods when complying engines are not available, engine owners are unable to obtain a permit for or registe r an engine that complies with the Portable ATCM, or the Statewide Regulation;

WHEREAS the Portable ATCM includes increasingly str ingent (tiered) emission standards that are phased in over time, of which se veral have become effective recently;

WHEREAS, the impact on business owners who have bee n unable to purchase a compliant engine would be severe if they must wait until the normal rulemaking process is completed because they will not be able to condu ct business;

WHEREAS, the ARB staff has worked closely with the air pollution control districts and air quality management districts (districts), and t he affected industry to collect and evaluate the most current information regarding con cerns about requirements of the Statewide Regulation and the Portable ATCM;

WHEREAS, on December 7, 2006, the Board adopted Res olution 06-43, by which the Board adopted emergency amendments to the Statewide Regulation and the Portable ATCM; the emergency amendments became effective on December 27, 2006, and will expire after April 26, 2007;

WHEREAS, on this day – March 22, 2007 – the Board h as conducted a hearing to consider adoption of proposed amendments that will make permanent the currentlyeffective emergency amendments to the Statewide Reg ulation and the Portable ATCM

with some revisions; these amendments will be submi tted to the Office of AdministrativeResolution 07-10 3

Law (OAL) following full compliance with all of the applicable requirements in the

California Administrative Procedure Act for nonemer gency rulemakings;

WHEREAS, at this hearing the Board has adopted Reso lution 07-09, by which it has adopted the proposed permanent amendments to the Po rtable ATCM, and approved the proposed permanent amendments to the Statewide Regulation with modifications that are to be made available for a supplemental 15 -day comment period before final adoption;

WHEREAS, the supplemental comment period, the need to respond to all comments in the Final Statement of Reasons, and the need for up to 30 working days for review by OAL mean that it will not be possible for the perma nent amendments to become operative by the time the emergency amendments expi re;

WHEREAS, staff has accordingly proposed that the Bo ard adopt a second set of emergency amendments, which would be identical to t he amendments adopted and approved in Resolution 07-09, would become operativ e on April 27, 2007, and would apply for a limited period while the rulemaking on the permanent amendments is completed; the proposed emergency amendments to the Statewide Regulation are set forth in Attachment A hereto, and the proposed emer gency amendments to the Portable ATCM are set forth in Attachment B hereto; and

WHEREAS, the proposed amendments to the Statewide R egulation in Attachment A hereto are shown compared to the Statewide Regulati on as amended by the Board on June 22, 2006; the June 22, 2006 amendments are cur rently pending at the Office of Administrative Law and are expected to become opera tive April 27, 2007.

NOW, THEREFORE, BE IT RESOLVED that the Board hereb y incorporates the findings in Resolution 07-9 adopting and approving the permanent amendments to the Statewide Regulation and the Portable ATCM.

BE IT FURTHER RESOLVED that the Board adopts the em ergency amendments to the Statewide Regulation as set forth in Attachment A h ereto, and adopts the emergency

amendments to the Portable ATCM as set forth in Att achment B hereto.

BE IT FURTHER RESOLVED that the amendments be submi tted to the Office of Administrative Law (OAL) as emergency regulations, and that the Executive Officer prepare a “Finding of Emergency” in compliance with Government Code section 11346.1(b); provided that if the Executive Officer decides prior to submittal of the emergency regulations that further modification s should be made to the permanent amendments pursuant to Resolution 07-09, she shall incorporate those modifications into the emergency amendments as well.

BE IT FURTHER RESOLVED that the Board directs the s taff to continue its ongoing outreach efforts, to inform portable engine users a nd owners, equipment dealers andResolution 07-10 4

distributors, engine manufacturers, and other inter ested stakeholders about complying with the Statewide Regulation and the Portable ATCM

.

I hereby certify that the above is a true and correct copy of Resolution 07-10, as adopted by the Air Resources Board.

/s/

_______________________________ Lori Andreoni, Clerk of the BoardResolution 07-10

March 22, 2007

Identification of Attachments to the Resolution

Attachment A: Proposed Emergency Amendments to the Statewide Por table Equipment

Registration Program Regulation as distributed at t he March 22, 2007 hearing

Attachment B: Proposed Emergency Amendments to the Airborne Toxi c Control Measure

for Diesel Particulate Matter from Portable Engines Greater Than 50 Horsepower as distributed at the March 22, 2007 hearing