State of California
AIR RESOURCES BOARD

EXECUTIVE ORDER R

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Adoption of Amendments to the Regulation for Mobile Cargo Handling Equipment at
Ports and Intermodal Rail Yards

WHEREAS, on September 22 , 201 1

, the Air Resources Board (ARB or Board )
cond ucted a public hearing after issuance of a Notice of Public Hearing (45

- Day Notice)

to consider the approval for adoption of amendments to the “ Regulation for Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards ( CHE r egulation),
title 13, Ca lifornia Code of Regulations (Cal. Code Regs.) , section 2 479 ;

WHEREAS, ARB has a regulatory program certified under Public Resources Code section 21080.5, and pursuant to this program ARB conducts environmental analyses to meet the requirements of the Cal ifornia Environmental Quality Act (CEQA);

WHEREAS, ARB’s certified regulatory program provides that when an action contemplated by the Board may have a significant effect on the environment, ARB staff shall prepare a staff report that shall contain a desc ription of the proposed action, an assessment of anticipated significant long or short

- term adverse and beneficial environmental impacts associated with the proposed action

, and a succinct analysis of those impacts;

WHEREAS, concurrent with publication o f the 45

- Day Notice, ARB issued an Initial Statement of Reasons (Staff Report) that included an environmental analysis that addressed potential environmental impacts related to the proposed amendments given
California’s economy and its impact on operation of cargo handling equipment emission

sources ;

WHEREAS, the environmental analysis found that the amendments will have no adverse impact on aesthetics, land

- use/planning, population and housing, transportation, agricultural and forestry resources, cultural resources, mineral resources, public services, utility and service systems, geology and soils, hydrology and water quality, or recreation ;

WHEREAS, the environmental analysis further found that the amendments will not impact the intended goals of the i nitially adopted CHE r egulation

– to attain 85 percent
diesel PM and 75 percent NO
x emissions reductions relative to the 200 5 baseline by

2020

– and , for all ports, with the exception of the Port of Humboldt Bay, and all intermodal rail yards

, will not hav e a significant impact on air quality ;

WHEREAS, the environmental analysis found that for the Port of Humboldt Bay, the amendment to exempt the port from the CHE r egulation’s requirements will result in aExecutive Order R

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slight emissions increase , but because of decreas ed activity at the port, emissions will be less than the baseline used at the time the CHE regulation was initially adopted:

WHEREAS, at a public hearing on September 22, 2011

, after consideration of the Staff Report and public comments received, th e Boar d adopted Resolution 1 1

- 30 , which directed the staff to modify the initially proposed amendments that were part of the

45

- Day Notice, consistent with the resolution and the suggested modifications presented by staff in Attachment B to the r esolution (a co py of the resolution is attached hereto as Attachment 1) ;

WHEREAS, in Resolution 1 1

- 30 , the Board directed the Executive Officer to make the
modifications to the initially proposed amendments to the regulation available for public comment for a period of 15 days, that he consider written comments submitted during
th e 15

- day comment period, and make such further modifications as may be appropriate in light of the comments received ;

WHEREAS, the Board further directed the Executive Officer to complete the regulatory
modification and

– as the decision maker for the purposes of California Code of Regulations, title 17, section 60007

– the environmental review process in accordance with the requirements of the Administrative Procedure Act and CEQA under AR B’s

ce rtified regulatory program, approve the written responses to comments raising significant environmental issues, and take final action to adopt the proposed
amendments to CHE r egulation as modified , or return the matter to the Board for further
consid eration if he de termines it is warranted ;

WHEREAS, on June 15

, 201 2

, ARB issued a Notice of Availability of M odified T ext and
Additional Documents that reflect ed the amendments considered by the Board and
other conforming modification s and includ ed an upd ated economic and emission
benefits analysis

, all of which were made available for public comment, with the changes to the originally proposed text clearly indicated, in accordance with the provisions of title 1, California Code o f Regulations, section 44 (Notice of Modified Text, a copy of which is attached hereto as Attachment 2) ;

WHEREAS, written comment s w ere received during the initial 45

- day comment period
and after issuance of the Notice of Modified Text

, and oral comments were received as part of the testimony taken at the September 22 , 201 1 Board hearing, and among the comments received were comments that raised environmental issues; and

WHEREAS, ARB staff has reviewed and summarized the comments received, including

comments raising environmenta l issues

, and prepared written responses thereto ( a copy of which is attached hereto as Attachment 3 )

.

NOW, THEREFORE, IT IS ORDERED that the recitals and fin dings contained in
Resolutio n 11

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IT IS FURTHER ORDERED that I hereby approve each of the written responses to comments raising significant environmental issues as set forth in Attachment 3.

IT IS FURTHER ORDERED that I hereby certif y that the environmental analysis prepared for the amendments to the CHE r egu lation was prepared in accordance with the requirements of ARB's certified regulatory program under CEQA.

IT IS FURTHER ORDERED that

, after fully considering the amendments as modified by
the Notice of Modified Text , the environmental analysis , and the fu ll record before me, I
find:

Ports and Intermodal Rail Yards Other than the Port of Humboldt Bay

The amendments to the CHE r egulat i on as they apply to all ports and intermodal rail yards, other than the Port of Humboldt Bay, will not result in any advers e impacts to any

resource area statewide or in

- and

- around the ports and intermodal rail yards referenced
above ;

T he amended regulation would substantially reduce both particulate matter (PM) and oxides of nitrogen ( NOx ) emissions, as compared to the envir onmental conditions that
existed at the time the environmental analysis was prepared

, although the emission benefits could, in the short term, be somewhat less than what were projected to occur with the regulation when it was adopted in 2005/2006 ;

T o add ress this potential for a reduction in projected future emission benefits

, t he
amendments include :

• A requirement that all non

- yard truck cargo handling equipment four years and older be annually tested for smoke opacity;

• A requirement that owner/operator s who request a third and fourth year compliance extension for equipment for which no verified diesel emission control strategy (VDECS) is commercially available must agree to replace that equipment or some other piece of equipment in the fleet with electr ic or hybrid models, i f such equipment is available and operationally feasible for use ;

• A requirement that equipment meeting the Tier 4 family emission
limit s must be retrofitted with a Level 3 VDECS , if commercially available, within one year of the CHE e quipment being acquired;

ARB considered but could not find any other modifications that would
eliminate or further lessen the identified potential for a reduction in projected future NOx emission benefits while concurrently meeting the objectives of the amendments to provide compliance flexibility and economic relief to affected industries, and still achieve the long

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Based on the foregoing, the CHE regulation, as amended, will substantially reduce both
PM and NOx emissions , and therefore, the amendments as they apply to all ports and intermodal rail yards, other than the Port of Humboldt Bay, will not result in any significant adverse environmental impacts on air quality.

Port of Humboldt Bay

The amendments to the CHE r egulation exempt the low

- throughput P ort of Humboldt Bay from having to comply with the regulation, which will result in fewer projected future
emission benefits compared to reductions forecasted when the regulation was initially
ado pted in 2005/2006 and may result in a slight increase in emissions in future years compared to the environmental conditions that existed at the time the environmental analysis was prepared.

To avoid or substantially lessen this p otential for increased emi ssion s

, cargo handling equipment at the Port will be regulated as follows:

• All off

- road equipment at the P ort will be required to meet the compliance requirements of ARB’s In

- Use Off

- Road Diesel

- Fueled Fleets Regulation, Cal. Code Regs., title 13, sectio n 2449 et seq.,

• All on

- road motor vehicles will be required to meet the requirements of ARB’s Regulation to Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and Other Criteria Pollutants from In

Use Heavy

- Duty Diesel

- Fueled Vehicles, Cal. Code Regs., title 13, section 2025;

• If the P ort subsequently exceeds the two

- year average annual cargo throughput limit established in the CHE regulation or the population in the surrounding community increases to exceed 50,000 persons, the amendments requ ire that each owner or operator of cargo handling equipment at the P ort needs submit a plan for compliance with the CHE regulation;

ARB considered

, but could not find

, any other feasible mitigation or feasible alternatives
to the amendments that would eliminate or further lessen the potential for increased
emissions and concurrently meet the objectives of the amendments to provide the
needed economic relief to affected industries , with concurrent social and economic
benefits to local residents ;

D e spite the potential for a slight increase in emissions in future years

, upon balancing the this potential for an adverse air quality impact against the severe economic conditions at the Port of Humboldt Bay (an approximate 89 percent drop in tonnage throu ghput
between 2005 and 2011 )

, the benefits of this regulatory action

, in terms of providingExecutive Order R

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economic relief to terminal operations and social benefits of employment

, are determined
to be overriding considerations that warrant approval of the amendment s and outweigh
and override the potential for any potential adverse emissions impact ;

The exemption of the Port of Humboldt Bay from the CHE r egulation’s requirements will
not affect the NAAQS attainment status of the North Coast Air Basin;

IT IS FURTHE R ORDERED

, the a mendments t o Cal. Code Regs., title 13, section

2 479

, as set forth in Attachment 4 hereto, is adopted.

Executed this 2 day of August 20 1 2 , at Sacramento, California.

/s/

_______________________ James N. Goldstene

E xecutive Officer

Attachment s