State of California

AIR RESOURCES BOARD

Resolution 07-9

March 22, 2007

Agenda Item No: 07-3-3

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, 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 and outreach 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 an Airborne Toxic Contro l Measure for Diesel-Fueled Portable Engines (Portable ATCM), and approved Reso lution 04-7 on February 26,
2004;

WHEREAS, based on comments received from affected i ndustry during the ARB’s September 28, 2006 Board meeting that raised concer ns regarding eligibility of the Statewide Regulation and the Portable ATCM, the Boa rd directed staff to consider options and report back to the Board;

WHEREAS, proposed emergency amendments to the State wide Regulation and the Portable ATCM to resolve the eligibility issues wer e developed by staff through

discussions of draft versions made available to the public for review and comments at a public consultation meeting, and numerous conferenc e calls;

WHEREAS, the Board adopted emergency amendments to the Statewide Regulation and the Portable ATCM and approved Resolution 06-43 on December 7, 2006;Resolution 07-9 2

WHEREAS, the emergency amendments to the Statewide Regulation and the Portable ATCM became effective on December 27, 2006 for a pe riod not to exceed120 days;

WHEREAS, due to the limited duration of the emergen cy amendments, staff has developed a proposal to make the emergency amendmen ts adopted on December 7, 2006 permanent, along with other revisions to impro ve the clarity and expediency of the Statewide Regulation;

WHEREAS, the amendments to the Statewide Regulation and Portable ATCM to make permanent the previously adopted emergency amendmen ts were developed by staff through discussions of draft versions made availabl e to the public for review and comments at a public workshop, and numerous confere nce calls;

WHEREAS, with the information and comments received from the affected public, the staff has prepared a staff report entitled “Initial Statement of Reasons for the Proposed Amendments to the Statewide Portable Equipment Regi stration Program Regulation

and the Airborne Toxic Control Measure for Diesel P articulate Matter from Portable Engines” (Initial Statement of Reasons), which pres ented the rationale for the proposed amendments to the Statewide Regulation and Portable ATCM set forth in Attachment A
and B hereto;

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;

WHEREAS, the Initial Statement of Reasons and the p roposed amendments to the Statewide Regulation and Portable ATCM were made av ailable for public review and comment at least 45 days prior to the public hearin g to consider the proposed amendments to the Statewide Program;

WHEREAS, the Board has considered the magnitude of the resultant air quality benefit and the potential effects of the proposed amendment s to the Statewide Regulation and Portable ATCM on the costs to businesses that use p ortable engines and associated equipment prior to adopting any emission limit or e mission control requirement;

WHEREAS, the Board has considered the economic anal ysis in the Initial Statement of Reasons and the impact of the proposed regulatory a ction on the economy of the State;

WHEREAS, the California Environmental Quality Act a nd Board regulations require that a project which may have significant adverse enviro nmental impacts may not be adopted as originally proposed if feasible alternat ives or mitigation measures are available to substantially reduce or eliminate such identified impacts;Resolution 07-9 3

WHEREAS, a public hearing was held March 22, 2007, in accordance with the provisions of chapter 3.5 (commencing with section 11340), part 1, division 3, title 2 of the Government Code;

WHEREAS, after consideration of the Initial Stateme nt of Reasons, written comments, and public testimony received, the Board finds that :

Despite outreach and noticing efforts, some owners and operators of portable equipment have stated that they were not aware of t he requirements to purchase cleaner complying engines and obtain district permi ts to operate or registration as provided in the Statewide Regulation;

Owners and operators of portable equipment that did not purchase cleaner complying engines and did not obtain district permi ts to operate or registration, as provided in the Statewide Regulation, operated a t a competitive advantage compared to owners and operators that did pay regis tration or permitting fees and/or purchased cleaner complying engines;

During the periods when complying engines are not a vailable, engine owners were unable to obtain a permit for or register an e ngine that complies with the Portable ATCM or the Statewide Regulation;

Tier 0 engines have significantly higher emissions than certified Tier 1, 2 or 3 engines and these emission impacts are best evaluat ed on a case-by-case basis by the local districts at their discretion;

It is appropriate to allow the registration for a l imited time of engines that do not meet current emission standards as long as they hav e been previously resident in the State and the owners will pay the applicable back registration and inspection fees that should have been paid had the engine been properly registered when first put into service;

Compliance dates should be extended during those in stances where it can be verified to ARB that engines meeting current emissi on standards are not available;

An extension to register diesel-fueled engines meet ing prior emissions standards

should be allowed for a limited time after an emiss ion standard change;

Requiring the tracking of hours of operation for re ntal equipment units is redundant and places an undue burden on industry;

The economic impacts of the proposed amendments to the Statewide Regulation have been analyzed as required by California law, a nd the conclusions and supporting documentation for this analysis are set forth in the Initial Statement of
Reasons;Resolution 07-9 4

The staff will conduct extensive outreach activitie s to inform affected parties of the adoption of the proposed amendments to the Stat ewide Regulation and Portable ATCM;

WHEREAS the Board further finds that:

The proposed amendments to the Statewide Regulation and Portable ATCM are expected to have a positive environmental impact by having more portable engines participating in a regulatory program that will eventually reduce emissions from such equipment;

WHEREAS, the Board further finds that:

The proposed amendments would ensure the continued reduction of emissions

of NOx and diesel PM which will benefit urban area communities, where operation of registered engines and equipment units occurs most frequently; and

WHEREAS, the Board further finds that:

There is no less costly alternative or combination of alternatives which would be equally effective in achieving increments of enviro nmental protection in a manner that ensures full compliance with statutory mandate s within the same amount of time as the proposed regulatory requirements.

NOW, THEREFORE, BE IT RESOLVED that the Board hereb y approves the proposed amendments to the Statewide Regulation as set forth in Attachment A with the

modifications set forth in Attachment C.

BE IT FURTHER RESOLVED that the Board hereby adopts the proposed amendments

to the Portable ATCM as set forth in Attachment B.

BE IT FURTHER RESOLVED that the Board directs the E xecutive Officer to incorporate

the modifications described in Attachment C into th e amendments contained in Attachment A, with such other conforming modificati ons as may be appropriate, including, but not limited to, modifications relate d to annual reporting for rental equipment units and recordkeeping of daily throughp ut for specified types of equipment units, and then to adopt the modified amendments af ter making the modified regulatory language available for supplemental public comment for a period of 15 days, provided

that the Executive Officer shall consider such writ ten comments regarding the modifications as may be submitted during this perio d, shall make additional modifications as may be appropriate in light of the comments received, and shall present the regulations to the Board for further co nsideration if she determines this is

warranted.Resolution 07-9 5

BE IT FURTHER RESOLVED that the Board hereby determ ines, pursuant to section 209(e)(2) of the federal Clean Air Act, tha t the emission standards and other requirements related to the control of emissions fr om off-road engines adopted or amended as part of this rulemaking are, in the aggr egate, at least as protective of public health and welfare as applicable federal standards, that California needs its off-road engine emission standards to meet compelling and ex traordinary conditions, and the standards and accompanying enforcement procedures a s adopted or approved herein

are consistent with Clean Air Act section 209.

BE IT FURTHER RESOLVED that the Board hereby determ ines that the amendments adopted or approved herein will not cause Californi a portable off-road engine emission standards, in the aggregate, to be less protective of public health and welfare than applicable federal standards.

BE IT FURTHER RESOLVED that pursuant to the determi nations set forth above, the Board directs staff file a request for authorizatio n from the U.S. Environmental Protection Agency pursuant to Clean Air Act section 209(e), or confirmation that the adopted fall within the scope of previous authoriza tions, to the extent necessary.

I hereby certify that the above is a true and correct copy of Resolution 07-9, as adopted by the Air Resources Board.

/s/

_______________________________ Lori Andreoni, Clerk of the BoardResolution 07-9

March 22, 2007

Identification of Attachments to the Resolution

Attachment A: Proposed Amendments to the Statewide Portable Equip ment

Registration Program Regulation, title 13, Californ ia Code of Regulations, sections 2451, 2452, 2453, 2455, 2456, 2458, 2459, 2460, 2461 and 2462, as set forth in Appendix A to the St aff Report: Initial Statement of Reasons issued February 2, 2007.

Attachment B: Proposed Amendments to the Airborne Toxic Control Measure for

Diesel Particulate Matter from Portable Engines Gre ater Than 50 Horsepower, title 17, California Code of Regulat ions, sections 93116, 93116.1, 93116.2 and 93116.3 and adoption of section 93116.3.1, as set forth in Appendix B to the Staff Report: Initial Statement of Reasons issued February 2, 2007.

Attachment C: Staff’s Suggested Modifications to the Proposed Ame ndments to the

Statewide Portable Equipment Registration Program R egulation, title 13, California Code of Regulations, sections 2453, 2456 and 2458, as distributed at the March 22, 2007 hearing.