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 orTRU regulation), codified attitle 13, California Code of Regulation (CCR), title 13, section 2477, pursuantto its authority and rationale setforth 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 pollutantsfrom TRUs and the cost-effectiveness and technical feasibility ofachieving such emissions reductions; WHEREAS, the TRU ATCM was approved by the Office ofAdministrative Law OAL on November 10, 2004, and became effective under California law on December 10, 2004, upon being certified bythe 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 pursuantto Clean AirAct (CAA) section 209(e)(2) on January 16, 2009; WHEREAS, since the adoption and granting ofauthorization ofthe ATCM, ARB staff has been engaged in implementing the ATCM and working closely with affected stakeholders in addressing implementation issues; WHEREAS, aftersignificant public outreach, including three publicworkshops 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 least45 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 ofwhich are setforth 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 MY2004 TRUs, to clarify the compliance schedule for flexibility engines, and to require TRU equipment manufacturers to report certain information toARB in orderto implementthe proposed amendments and streamline the TRU registration process:Resplution 1 0-39 

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Need for anAdditional Compliance Option for MY2003 and Certain MY 2004 TRUs As initially adopted, the TRU ATCM provided that MY 2003 and subsequent model year engines meetthe Ultra-Low Emission TRU (ULETRU) in-use standard seven years afterthe engine model year; Although the availability ofverified diesel emission control strategies (VDECS) forTRUs 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 meetthe ULETRU standard forTRU engines equal to orgreater than 25 horsepower (hp) by the December 31, 2010 compliance date and for TRU engines less than 25 horsepower (hp) engines bythe December 31, 2010 and 2011 compliance dates; MostTRU horsepowercategories would be able to meetthe less stringent .low emission TRU (LETRU) standard bythe 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 ofthe emission reductions anticipated; Need forA Modified Compliance Schedulefor Flexibilitv Engines As initially adopted, the TRU ATCM requires in-use TRUs to meet more stringent emission standards seven years afterthe model year ofthe engine until the ULETRU standards are achieved; Based on industry-supplied data, between 2004 and 2006, over 10,000flexibility engines were installed in TRUs thatwere directed to the California market and

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

"Flexibility engines" are enginesthat are manufactured to an earlier emissions standard tierthat is less stringentthan the off-road engine emissions standard tier in effect atthe time the engine is manufactured; The high use offlexibility engines in TRUs was not anticipated during the original TRU ATCM development, and ifthis continues there would be a signific;ant loss in diesel PM and oxides ofnitrogen (NOx) emissions reductions, which would adversely affectthe Board's efforts to reduce public exposure to toxic air contaminants and smog-forming emissions from TRUs; TRU owners were notaware thatequipmentthey purchased in the past may have been equipped with flexibility engines, norwere they aware that underthe currentTRU ATCM, TRUs equipped with flexibility engineswould need to meet more stringent in-use standards soonerthan TRUs equipped with non-flexibility

· engines; the compliance date forflexibility engines is calculated using theResolution 10-39 

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"effective model year" ofthe engine, which isthe last yearthatthe emissions standard tier met by the flexibility engine was in effect, not its manufacture year; Need to Expand Reporting Requirements forTRU Manufacturers In orderto implement the above proposed changes and simplify registration for TRU owners, it is necessarythatTRU manufacturers provide production reports indicating specific information regarding TRUs and TRU engines that have been and will be sold inside and outside ofCalifornia; WHEREAS, for the reasons setforth above, staff has proposed the following amendments to the TRU ATCM, title 13, California Code of Regulations, section 2477, as setforth 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 MY2003 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 forflexibility engines produced before the · effective date ofthe amended regulation to be based on the yearthe engine was manufactured and notthe "effective model year" ofthe engine; Require the compliance schedule forflexibility engines produced on or afterthe effective date ofthe amended regulation to be based on the "effective model year" as defined in Attachment B; and Add new requirements forTRU 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, pursuantto sections 39665(c) and 43013(a) and (b) ofthe Health and Safety Code, the Board finds thatthe proposed changes to the in-use emission standards approved herein are necessary, cost-effective, and technologicallyfeasible within the time provided for compliance; WHEREAS, the California Environmental QualityAct (CEQA), section 21080.5 ofthe Public Resources Code and Board regulations at CCR, title 17, section 60006 require that no projectthat may have significant adverse environmental impacts be adopted as originally proposed iffeasible alternatives or mitigation measures are available to reduce oreliminate such impacts; WHEREAS, a public hearing and other administrative proceedings have been held in accordance with the provisions ofChapter 3.5 (commencing with section 11340), part 1, division 3, title 2 ofthe Government Code;Resolution 10-39 

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WHEREAS, the Board finds based on its independentjudgment and analysis ofthe entire record before itthat;

· The proposed amendments totheTRU ATCM will have no significant adverse

impacton air quality and the environment; To the extentthat a fair argumentcould 

### be madethatthe emissions resulting from the amendments to allowTRU owners to comply with the performance requirements for affected MY 2003 and 2004 TRUs by using Level 2 VDECS and the new requirements forflexibility engines could be characterized as having a significant environmental effect, overriding considerations exist that outweigh the identified environmental impacts; The finding ofoverriding considerations has been made after determining that no reasonably foreseeable feasible mitigation measures or alternative amendments exist thatwill better ensure that thatthe goals ofthe ATCM to reduce emissions and risks from TRU diesel engines are met; theproposed amendments provide the means forTRU 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) ofthe federal Clean AirAct (CAA) from adopting emission standards and other requirements related to the control ofemissions for TRU engines; and WHEREAS section 209(e)(2) ofthe CAA requires that California seek authorization from U.S. EPA priorto enforcing emission standards orother requirements relating to the control ofemissions from new and in-use non-road engines (ofwhich diesel TRU engines are a subpart) not otherwise preempted by section 209 (e)(1) and notwithin the

.scope ofpreviously granted authorizations;

NOW, THEREFORE, BE IT RESOLVED thatthe Board hereby approves for adoption the proposed amendments to section 2477, title 13, California Code of Regulations, as setforth in Attachment B hereto. BE IT FURTHER RESOLVED thatthe Board directs the Executive Officerto determine ifadditional conforming modificationsto the regulation are appropriate. Ifno additional modifications are appropriate, the Executive Officer shall take final action to adoptthe

. regulation, as setforth in Attachment B hereto. Ifthe Executive Officerdetermines that additional conforming modifications are appropriate, the Executive Officershall 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 thatthe Executive Officershall consider such written comments as may be submitted during this period, shall make such further modifications as may beResolution 10-39 

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appropriate in light ofthe comments received, and shall presentthe regulation to the Board for further consideration ifhe determinesthatthis is warranted. BE IT FURTHER RESOLVED thatthe Board .directs the Executive Officerto continue to workwith TRU manufacturers in exploring and developing reporting systems and processes that are equivalentto and at least as effective as those proposed in the amendments in Attachment B, and atthe same time address manufacturers' confidentiality and availability concerns. BE IT FURTHER RESOLVED thatthe Boarddirects the Executive Officerto begin outreach efforts as soon as possible with the affected industry to ensure thatTRU owners, operators, and manufacturers are aware ofthe requirements ofthis regulation and proposed amendments. BE IT FURTHER RESOLVED thatthe Board directs the staffto monitorthe implementation ofthe regulation and propose amendmentsforthe Board's consideration when warranted to resolve any implementation issues that may arise. BE IT FURTHER RESOLVED thatthe Board directs staffto 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 ofwhether extending the current seven-year operational life forTRUs 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 thatthe Board hereby determines that pursuant to Title II, section 209(e)(2) ofthe federal Clean AirAct, as amended in 1990, that the emission standards and other requirements related to the control ofemissions adopted as part of the amendments to the TRU ATCM are, in the aggregate, at least as protective ofpublic health and welfare as applicable federal standards, that California needs the adopted standards to meetcompelling and extraordinary conditions, and thatthe adopted standards and accompanying enforcement procedures are consistentwith the provisions ofsection 209. BE IT FURTHER RESOLVED thatthe Executive Officer shall, upon adoption, forward the regulations tothe U.S. Environmental Protection Agencywith a request that it confirm that the regulations are within the scope ofthe existing authorization offederal preemption that it has granted for TRU engines pursuant to section 209(e)(2) ofthe Clean AirAct, as appropriate.



## HB 042011

ResoiJrcus Agency of Celifcrni:i I hereby certifythatthe above is a true and correct copy of Resolution 10-39, as adopted by the Air Resources Board.Resolution 10-39 

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Resolution 1 0-39 November 18, 2010

Identification ofAttachments to the Board Resolution AttachmentA: Resolution 03"37 (February26, 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 setforth in

. AppendixA to the Initial Statement of Reasons, released

September 2010.