State of California

AIR RESOURCES BOARD

Second Notice of Public Ava ilability of Modified Text

PUBLIC HEARING TO CONSIDER PR OPOSED AMENDMENTS TO THE

AIRBORNE TOXIC CONTROL MEASU RE FOR IN-USE DIESEL-FUELED TRANSPORT REFRIGERATION UNITS (T RU) AND TRU GENERATOR SETS, AND

FACILITIES WHERE TRUs OPERATE

Public Hearing Date: October 21, 2011 First Public Availability Dates: February 28, 2012 – March 14, 2012 Second Public Availability Date: June 15, 2012

Deadline for Public Co mment: July 2, 2012

At its October 21, 2011, public hearing, t he Air Resources Board (ARB or Board) considered proposed amendments to the Ai rborne Toxic Control Measure (ATCM) for In-Use Diesel-Fueled Transpor t Refrigeration Units (TRU) and TRU Generator Sets,

and Facilities Where TRUs O perate (TRU ATCM), title 13

, California Code of Regulations section 2477 and adopted new sections 2477.1, 2477.2 , 2477.3, 2477.4, 2477.5, 2477.6, 2477.7, 2477.8, 2477.9, 2477.10, 2477.11, 24 77.12, 2477.13, 2477.14, 2477.15, 2477.16, 2477.17, 2477. 18, 2477.19, 2477.20, and 2477.21, which are designed to provide flexibi lity, improve enforceability, improve compliance rates, and clarify existing requirements. Information regarding the in itially proposed amendments

to the TRU ATCM can be found in the Initia l Statement of Reas ons (ISOR) at the following link: http://www.arb.ca.gov/r egact/2011/tru2011/tru2011.htm

The Board’s Action

At the October 21, 2011 hearing, the Boar d adopted Resolution 11-35 that covered the amendment to California Code of Regulati ons (CCR), title17, section 2477 and the proposed adoption of sections 2477.1 to 2477.21, that were initially proposed by staff

and described in the Notice of Public Heari ng (45-Day Public Notice) and Staff Report, which were initially published on August 31, 2011. Modifications were suggested by staff in a document entitled “Staff’s Suggest ed Modifications to the Original Proposal” that was distributed at the hearing and that was Attachment B to the Resolution. 1

Consistent with Government Code sect ion 11346.8, the Board delegated to the Executive Officer authority to take final action on the proposed am endment to the CCR, title17, section 2477, and to adopt new sect ions 2477.1 to 2477.21, as proposed by staff, and to determine if additional modifica tions to the originally proposed amendment

1 This document was inadvertently identified as Attachment D to Resolution 11-35 at the October 21, 2011 public hearing, but the text of this document clearly indicates that it presents staff’s suggested modifications to the originally proposed amendments to the regulatory text set forth in Appendix A to the Staff Report: Initial Statement of Reasons (released August 31, 2011).2 and adoption of sections 2477.1 to 2477.21 are appropriate, and if the Executive Officer does so determine, to make the modified regulatory language available for public comment for a period of 15 days before taki ng final action to adopt the amendments. The Board further provided that the Execut ive Officer shall consider such written comments as may be submitted dur ing this period, shall make modifications as may be appropriate in light of the comments received, and shall present the regulations to the

Board for further consi deration if warranted.

Resolution 11-35 further directed the Execut ive Officer to prepare and approve written responses to comments received, including comments raising signifi cant environmental issues, as required by Government Code section 11346.9, Public Resource Code section 21080.5(d)(2)(D), and the California Code of Regul ations, title 17, section 60007, to determine whether there are feasible alternatives or mitigation measures that could be implemented to reduce or elimi nate any potential adverse environmental impacts, to make findings as required by P ublic Resources Code section 21081 if the proposed amendments would result in one or mo re significant adverse environmental impacts, and to take final action to adopt the proposed amendment to, and proposed adoption of California Code of Regulations, title 13, sections 2477 to 2477.21, as proposed for modification of any subsequent publicly noticed 15-day change notices.

The regulatory documents for this rulemaking , including Resolution 11-35, are available

online at the followi ng ARB website:

http://www.arb.ca.gov /regact/2011/tru2011/tru2011.htm

This notice is an announcement of the opening of a second 15-day comment period in which the public may provide comments on a dditional proposed modifications to the

TRU ATCM.

Summary of Additional Proposed Modifications

Attachment 1 to this notice cont ains the text of ti tle 13, California Code of Regulations sections 2477, 2477.1, 2477. 2, 2477.3, 2477.4, 2477.5, 2477.6, 2477.7, 2477.8, 2477.9, 2477.10, 2477.11, 2477.12, 2477.13, 2477.14, 2477.15, 2477.16, 2477.17, 2477.18, 2477.19, 2477.20, and 2477.21 that shows the proposed second 15-day modifications to the originally proposed amendments to section 2477 and the proposed adoption of

sections 2477.1 to 2477. 21 of the TRU ATCM.

I. Modifications to Regulatory Text of title 13, California C ode of Regulations (CCR) sections 2477 through 2477.21 Being Made Available for Comment

A. Exemption for Noncompliant, N on-Operating Refrigerated Railcar TRUs Passing Through California, if Certain Conditions and Criteria are Met [13 CCR section 2477.3]3 Comments were received regarding nonc ompliant TRUs on refrigerated railcars that travel through California without operating. For example, railroads occasionally need to move such noncompliant TRUs on empty refrigerated railcars from Arizona to Or egon or Washington. Allowing such noncompliant TRUs to pass through Ca lifornia if they are not operated would avoid having to route them around California borders over a much longer and more costly route. T hese TRUs are already equipped with electronic tracking systems that can be used to monitor the TRU location, date and time using global positio ning systems (GPS) , and automated recorders to capture the engine run status (e.g. “engine on” or “engine off”). Existing trackside readers and data acquisition and storage systems

can collect this data and use it to dem onstrate that the TRU engines never operate while inside of California.

Subsection (e) is proposed to be added to 13 CCR, section 2477.3 to provide an exemption for such TRUs , provided the Executive Officer has previously approved a written complianc e plan, submitted by the railway carrier. The written compliance plan w ould clearly identify the monitoring, recordkeeping, and reporting procedures that the railway carrier would implement and utilize to ensure nonc ompliant TRUs on refrigerated railcars will not operate at any time wh ile in California. The compliance plan would include, without limitation: the pr ocedures for tracking and recording routes and dates of travel within California of each noncompliant TRU, information identifying each noncom pliant TRU, a description of the automated monitoring and recordkeepi ng system for reporting the TRU “engine on” and “engine off” status, and the procedure for expeditiously reporting violations observed or discove red by the railway carrier to ARB. A statement would be required, signed by an authorized railroad representative, declaring that the railway carrier agrees to be bound by the compliance plan. Compliance verifica tion records would be maintained for three years and would be provided to authorized enforcement personnel
upon request.

B. Add an Exemption for a Railw ay Carrier Exempting Them from the Owner or Owner/Operator Require ments of Section 2477.5 for Any TRU or TRU Gen Set that is Not Owned by the Railway Carrier [13 CCR section 2477.3(f)]

The TRU ATCM’s in-use performance standards in section 2477.5 apply to owners or operators of TRUs t hat operate a TRU or TRU gen set in

California. The 2011 TRU Amendment s added language to the definition of “operate” to make it clear that a TRU or TRU gen set that is operable (capable of being operated) shall be considered to operate if it is in

California.4 Comments were received regarding railwa y carriers that move refrigerated railcars owned by third parties (any party other than the railroad). A railway carrier may be under contract to perform some activities that presently fall under the def inition of “operate”, such as fuel, monitor, or keep in operation; and, may perform these activities on behalf of the

owner to ensure safe transit of thei r customers’ perishable goods. For example, if there is a derailment, or other kind of delay in movement, the railway carrier may monitor the TRUs’ fuel levels and refuel them if necessary. But railway carriers do not load or unload perishable goods being transported and do not set the equipment operating programs of these third party TRUs.

Staff is proposing to add section 2477. 3(f), to exempt a railway carrier

from the owner or owner /operator requirements of section 2477.5 for refrigerated railcar TRUs that ar e owned by third parties, where the railway carrier is only moving the refr igerated equipment for a customer. This exemption would not apply if the rail carrier is leasing the TRU, in which case the lessee requirements of section 2477.12 would apply to the rail carrier. This exemption would also only apply if the railway carrier or its agent is only fueling, monitoring to assure proper operation, keeping in operation, arranging repairs at the r equest of the owner, or restarting the TRU or TRU gen set engine after an un scheduled shut-down or repair, and is not performing any of the other activities lis ted under the definition of ‘operate.’

It is not staff’s intent to exempt rail carriers from the freight broker and freight forwarder requirements of sect ion 2477.8 if the rail carrier is the business entity that hires, contracts for, or dispatches the transport of perishable goods in TRU- equipped or TRU gen set-equipped trucks, tractor-trailers, shipping containers, or railcars on Calif ornia highways or railways. For example, if a rail carrier , its parent company, or subsidiary arranges drayage at the ends of the rail leg of perishable food transport, the freight broker or freight forwarder require ments of section 2477.8 would apply to the rail carrier.

Submittal of Comments

Written comments will only be accepted on the modifications described in this notice and may be submitted by postal mail or electronic mail submittal as follows:

Postal mail: Clerk of the Board

Air Resources Board

1001 I Street Sacramento, California 958145 Electronic submittal: http://www.arb.ca.gov/lispub/comm/bclist.php

Please note that under the California Public Records Act (Gov. Code § 6250 et seq.), your written and oral comments, attachment s, and associated contact information (e.g., your address, phone, email, etc. ) become part of the public record and can be released to the public upon request.

In order to be considered by the Executive Officer, comm ents must be directed to ARB

in one of the two forms described above and received by ARB by 5:00 p.m., on the deadline date for public comment listed at the beginning of this notice. Only comments relating to the above-described modifications to the text of the regulations shall be considered by the Executive Officer.

If you need this document in an alternate fo rmat or another language, please contact the Clerk of the Board at ( 916) 322-5594 or by facsimile at (916) 322-3928 no later than five (5) business days from the release date of this notice. TTY/TDD/Speech to Speech users may dial 711 for the Ca lifornia Relay Service.

Si necesita este documento en un formato alte rno u otro idioma, por favor llame a la oficina del Secretario del Consejo de Recurs os Atmosféricos al (916) 322-5594 o envíe un fax al (916) 322-3928 no menos de cinco (5) dí as laborales a partir de la fecha del

lanzamiento de este aviso. Para el Servicio Telefónico de California para Personas con Problemas Auditivos, ó de telé fonos TDD pueden marcar al 711.

Attachment

The energy challenge facing California is real. Every Californian needs to take immediate action to reduce energy consumption. For a list of simple ways you can reduce demand and cut your energy costs, see ARB’s website at www.arb.ca.gov

.ATTACHMENT 1

Second 15-Day Modifications to the Original Proposal

MODIFICATIONS TO THE PROPO SED AMENDMENTS TO THE

AIRBORNE TOXIC CONTROL MEASUR E FOR IN-USE DIESEL-FUELED TRANSPORT REFRIGERATION UNITS (T RU) AND TRU GENERATOR SETS, AND

FACILITIES WHERE TRUs OPERATE

Shown on the following pages are the proposed m odifications to the originally proposed regulatory text set forth in A ppendix A of the Staff Report: Initial Stat ement of Reasons, which was released August 31, 2011. All or iginally proposed r egulatory language is

shown in underline to indicate additions and strikeout to indi cate deletions.

The second 15 day modified language now proposed by staff is shown in bold italic

double underline to indicate additions and bold italic double strikeout to indicate

deletions.

Staff is proposing modifications to limite d portions of the original proposal; for some portions where no modifications ar e proposed the text has been omitted and the omission indicated by:

******This page left intentionally blank3 Airborne Toxic Control Measure for In-U se Diesel-Fueled Transport Refrigeration Units (TRU) and TRU Generator Sets, and Facilities Where TRUs Operate

________________________ _________________________ ___________________

Amend article 8, Off-Road Airborne Toxic Control Measures, and section 2477 and adoption of sections 2477.1, 2477.2, 2477.3, 2477.4, 2477.5, 2477. 6, 2477.7, 2477.8, 2477.9, 2477.10, 2477.11, 2477.12, 2477.13, 2477.14, 2477.15, 2477.16, 2477.17, 2477.18, 2477.19, 2477.20, and 2477.21, wi thin division 3, chapter 9, title 13, California Code of Regulations (CCR), to read as follows:

Article 8. Off-Road Airbor ne Toxic Control Measures

Section 2477. Airborne Toxic Cont rol Measure for In-Use Diesel-Fueled Transport Refrigeration Units (TRU) and TRU Generator Sets, and Facilities Where TRUs Operate.

******

(c) 2477.3 Exemptions

.

******

(e) (1) Noncompliant TRUs on refrigerat ed railcars that are not operated while traveling through California shall be exempted provided the Executive Officer has previously approved a wr itten compliance plan submitted by the railway carrier.

(2) The written complian ce plan must clearly identify the monitoring, recordkeeping, and reporting procedur es that the railw ay carrier will implement and utilize to ensure that noncompliant TRUs on refrigerated railcars will not operate while in California.

(3) The compliance plan shall estab lish monitoring, recordkeeping, and reporting procedural requirements th at the Executive Officer finds are sufficient to identify non-compliant TRUs being moved on railways in

California and to ensure that such T RUs will not operate at any time while they are present within California.

(A) The compliance plan must include, without limitation: the procedure for tracking and recording routes and dates of travel within California of each noncompliant TRU, in formation identifying each noncompliant TRU (e.g. the railway carrier’s reporting mark followed by the one-to-six-digit number which together uniquely identifies the railcar), a description of th e automated monitoring and recordkeeping system for reporting th e TRU “engine on” or “engine4 off” status, and the procedure for expeditiously reporting violations observed and/or discovered by the railway carrier.

(B) A statement is required, signed by an authorized railroad representative, declaring that th e railway carrier agrees to be bound by the compliance plan.

(4) Within 30 days of the submission of a complete compliance plan, the Executive Officer shall approve or disapprove the compliance plan based

on the information submitte d by a railway carrier as specified in section 2477.3(e)(2) and (3) above, and based on good engineering judgment. If the compliance plan is disapproved, th e Executive Officer shall inform the railway carrier of the reasons for the disapproval. The railway carrier may revise the compliance plan to addr ess the basis for disapproval and resubmit the compliance plan for EO approval or disapproval.

(5) The railway carrier shall mainta in records collected pursuant to the approved compliance plan for a period of at least three (3) years and make these records available to ARB upon request.

(f) Railway carriers are exempt from the owner or owner/operator requirements of section 2477.5 for any TRU or TRU gen set that is not owned by the railway carrier, provided:

(1) The TRU or TRU gen set is not l eased by the railway carrier, in which case, section 2477.12 applies; or (2) The railway carrier or its agent is only fueling, monitoring to assure proper operation, keeping in operati on, arranging repairs at the request of the owner, or restarting the T RU or TRU gen set engine after an unscheduled shut-down or repair, and is not performing any of the other

activities listed under the definition of “operate”.

******