State of California 

AIR RESOURCES BOARD 

Resolution 10-39 

November 18, 2010 

Agenda Item No.: 10-10-6 

WHEREAS, on February 26, 2004 the Air Resources Board (ARB or Board) adopted 

the Airborne Toxic Control Measure for In-Use Diesel-Fueled Transport Refrigeration 

Units (TRU) and TRU Generator Sets and Facilities where TRUs Operate (TRU ATCM 

or TRU regulation), codified at title 13, California Code of Regulation (CCR), title 13, 

section 2477, pursuant to its authority and rationale set forth in Resolution 03-37, which 

is incorporated herein as Attachment A. 

WHEREAS, ARB staff issued a Staff Report: Initial Statement of Reasons (2003 Staff 

Report) that identified and explained the need and appropriate degree of regulation for 

diesel exhaust particulate matter and other pollutants from TRUs and the 

cost-effectiveness and technical feasibility of achieving such emissions reductions; 

WHEREAS, the TRU ATCM was approved by the Office of Administrative Law OAL on 

November 10, 2004, and became effective under California law on December 10, 2004, 

upon being certified by the California Secretary of State; 

WHEREAS, ARB requested and U.S. Environmental Protection Agency (U.S. EPA) 

granted authorization to California to adopt and enforce the TRU ATCM pursuant to 

Clean Air Act (CAA) section 209(e)(2) on January 16, 2009; 

WHEREAS, since the adoption and granting of authorization of the ATCM, ARB staff 

has been engaged in implementing the ATCM and working closely with affected 

stakeholders in addressing implementation issues; 

WHEREAS, after significant public outreach, including three public workshops held 

between March 2010 and August 2010, in which proposed concepts and draft 

amendments were shared with interested stakeholders, ARB staff prepared and made 

publicly available for at least 45 days prior to public hearing, a 2010 Staff Report: Initial 

Statement of Reasons (2010 Staff Report) and proposed amendments to the TRU 

ATCM, the latter of which are set forth in Attachment B hereto; 

WHEREAS, as summarized below, the 2010 Staff Report identified and explained the 

need to amend the regulation to provide additional compliance options for owners and 

operators of model year (MY) 2003 and certain MY 2004 TRUs, to clarify the 

compliance schedule for flexibility engines, and to require TRU equipment 

manufacturers to report certain information to ARB in order to implement the proposed 

amendments and streamline the TRU registration process: 
Resplution 1 0-39 2 

Need for an Additional Compliance Option for MY 2003 and Certain MY 

2004 TRUs 

As initially adopted, the TRU ATCM provided that MY 2003 and 

subsequent model year engines meet the Ultra-Low Emission TRU 

(ULETRU) in-use standard seven years after the engine model year; 

Although the availability of verified diesel emission control strategies 

(VDECS) for TRUs is increasing, Level 3 (85 percent PM control) VDECS 

for TRUs have become available at a slower pace than initially anticipated 

and are not available in sufficient numbers for owners to meet the 

ULETRU standard for TRU engines equal to or greater than 

25 horsepower (hp) by the December 31, 2010 compliance date and for 

TRU engines less than 25 horsepower (hp) engines by the 

December 31, 2010 and 2011 compliance dates; 

Most TRU horsepower categories would be able to meet the less stringent 

.low emission TRU (LETRU) standard by the respective 2010 and 2011 

deadlines by using Level 2 (50 percent PM control) VDECS, which are 

readily available and provide a lower-cost compliance option that 

preserves almost all of the emission reductions anticipated; 

Need for A Modified Compliance Schedule for Flexibilitv Engines 

As initially adopted, the TRU ATCM requires in-use TRUs to meet more stringent 

emission standards seven years after the model year of the engine until the 

ULETRU standards are achieved; 

Based on industry-supplied data, between 2004 and 2006, over 10,000 flexibility 

engines were installed in TRUs that were directed to the California market and 

· over 37,000 TRUs with flexibility engines were directed to the U.S. market; 

"Flexibility engines" are engines that are manufactured to an earlier emissions 

standard tier that is less stringent than the off-road engine emissions standard 

tier in effect at the time the engine is manufactured; 

The high use of flexibility engines in TRUs was not anticipated during the original 

TRU ATCM development, and if this continues there would be a signific;ant loss 

in diesel PM and oxides of nitrogen (NOx) emissions reductions, which would 

adversely affect the Board's efforts to reduce public exposure to toxic air 

contaminants and smog-forming emissions from TRUs; 

TRU owners were not aware that equipment they purchased in the past may 

have been equipped with flexibility engines, nor were they aware that under the 

current TRU ATCM, TRUs equipped with flexibility engines would need to meet 

more stringent in-use standards sooner than TRUs equipped with non-flexibility 

· engines; the compliance date for flexibility engines is calculated using the 
Resolution 10-39 3 

"effective model year" of the engine, which is the last year that the emissions 

standard tier met by the flexibility engine was in effect, not its manufacture year; 

Need to Expand Reporting Requirements for TRU Manufacturers 

In order to implement the above proposed changes and simplify registration for 

TRU owners, it is necessary that TRU manufacturers provide production reports 

indicating specific information regarding TRUs and TRU engines that have been 

and will be sold inside and outside of California; 

WHEREAS, for the reasons set forth above, staff has proposed the following 

amendments to the TRU ATCM, title 13, California Code of Regulations, section 2477, 

as set forth in Attachment B, to address implementation concerns that have been 

identified: 

Allow Level 2 (50 percent PM control) VDECS meeting the Low-Emission 

TRU (LETRU) in-use standard as an additional compliance option for 

TRUs equipped with MY 2003 engines rated at equal to or greater than 

25 hp and TRUs equipped with MYs 2003 and 2004 engines rated at less 

than 25 hp; 

Allow the compliance schedule for flexibility engines produced before the · 

effective date of the amended regulation to be based on the year the engine was 

manufactured and not the "effective model year" of the engine; 

Require the compliance schedule for flexibility engines produced on or after the 

effective date of the amended regulation to be based on the "effective model 

year" as defined in Attachment B; and 

Add new requirements for TRU manufacturers that would require them to 

periodically report production data on TRUs sold and the engines they plan to 

use in each TRU model; 

WHEREAS, pursuant to sections 39665(c) and 43013(a) and (b) of the Health and 

Safety Code, the Board finds that the proposed changes to the in-use emission 

standards approved herein are necessary, cost-effective, and technologically feasible 

within the time provided for compliance; 

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

Public Resources Code and Board regulations at CCR, title 17, 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; 
Resolution 1 0-39 4 

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

entire record before it that; 

· The proposed amendments to the TRU ATCM will have no significant adverse 

impact on air quality and the environment; 

To the extent that a fair argument could be made that the emissions resulting 

from the amendments to allow TRU owners to comply with the performance 

requirements for affected MY 2003 and 2004 TRUs by using Level 2 VDECS and 

the new requirements for flexibility engines could be characterized as having a 

significant environmental effect, overriding considerations exist that outweigh the 

identified environmental impacts; 

The finding of overriding considerations has been made after determining that no 

reasonably foreseeable feasible mitigation measures or alternative amendments 

exist that will better ensure that that the goals of the ATCM to reduce emissions 

and risks from TRU diesel engines are met; the proposed amendments provide 

the means for TRU owners to more fully comply with the regulation's 

requirements, at a less burdensome cost, with fewer emissions disbenefits; and 

The proposed amendments to theTRU ATCM should not adversely impact any 

communities in the State, including those with low-income and ethnically diverse 

populations; 

WHEREAS, California is not preempted under section 209(e)(1) of the federal Clean 

Air Act (CAA) from adopting emission standards and other requirements related to the 

control of emissions for TRU engines; and 

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 non-road engines (of which diesel TRU 

engines are a subpart) not otherwise preempted by section 209 (e)(1) and not within the 

. scope of previously granted authorizations; 

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

the proposed amendments to section 2477, title 13, California Code of Regulations, as 

set forth in Attachment B hereto. 

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

if additional conforming modifications to the regulation are appropriate. If no additional 

modifications are appropriate, the Executive Officer shall take final action to adopt the . 

regulation, as set forth in Attachment B hereto. If the Executive Officer determines that 

additional conforming modifications are appropriate, the Executive Officer shall adopt 

the modified regulation after making the modified regulatory language and any 

additional supporting documents and information available to the public for a period of 

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

may be submitted during this period, shall make such further modifications as may be 
Resolution 10-39 5 

appropriate in light of the comments received, and shall present the regulation to the 

Board for further consideration if he determines that this is warranted. 

BE IT FURTHER RESOLVED that the Board .directs the Executive Officer to continue to 

work with TRU manufacturers in exploring and developing reporting systems and 

processes that are equivalent to and at least as effective as those proposed in the 

amendments in Attachment B, and at the same time address manufacturers' 

confidentiality and availability concerns. 

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

outreach efforts as soon as possible with the affected industry to ensure that TRU 

owners, operators, and manufacturers are aware of the requirements of this regulation 

and proposed amendments. 

BE IT FURTHER RESOLVED that the Board directs the staff to monitor the 

implementation of the regulation and propose amendments for the Board's 

consideration when warranted to resolve any implementation issues that may arise. 

BE IT FURTHER RESOLVED that the Board directs staff to return to the Board by the 

earliest practical date in 2011 to consider additional amendments to the TRU ATCM, 

including, but not limited to, consideration of whether extending the current seven-year 

operational life for TRUs by up to three years is appropriate and whether additional time 

should be provided for pre-MY 2003 TRUs to comply with the ULETRU performance 

· standard. 

BE IT FURTHER RESOLVED that the Board hereby determines that pursuant to Title II, 

section 209(e)(2) of the federal Clean Air Act, as amended in 1990, that the emission 

standards and other requirements related to the control of emissions adopted as part of 

the amendments to the TRU ATCM are, in the aggregate, at least as protective of public 

health and welfare as applicable federal standards, that California needs the adopted 

standards to meet compelling and extraordinary conditions, and that the adopted 

standards and accompanying enforcement procedures are consistent with the 

provisions of section 209. 

BE IT FURTHER RESOLVED that the Executive Officer shall, upon adoption, forward 

the regulations to the U.S. Environmental Protection Agency with a request that it 

confirm that the regulations are within the scope of the existing authorization of federal 

preemption that it has granted for TRU engines pursuant to section 209(e)(2) of the 

Clean Air Act, as appropriate. 

HB 0 4 2011 

ResoiJrcus Agency of Celifcrni:i 

I hereby certify that the above is a true and 

correct copy of Resolution 10-39, as adopted 

by the Air Resources Board. 
Resolution 10-39 6 

Resolution 1 0-39 

November 18, 2010 

Identification of Attachments to the Board Resolution 

Attachment A: Resolution 03"37 (February 26, 2004) 

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

In-Use Diesel-Fueled Transport Refrigeration Units (TRU) and TRU 

Generator Sets and Facilities where TRUs Operate, as set forth in 

. Appendix A to the Initial Statement of Reasons, released 

September 2010.