Final Statement of Reasons for Rulemaking

Including Summary of Comments and Agency Responses

PUBLIC HEARING TO CONSIDER PROPOSED AMENDMENTS TO THE 

REGULATION FOR MOBILE CARGO HANDLING EQUIPMENT AT 

PORTS AND INTERMODAL RAIL YARDS

Public Hearing Date: September 22, 2011

Agenda Item No.: 11-7-5
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TABLE OF CONTENTS

Contents Page

I. General ................................................................................................................... 1

II. Modifications Made to the Original Proposal........................................................... 4

III. Summary of Comments and Agency Responses to the Original Proposal.............. 8

A. General Comments.................................................................................. 13

B. “No VDECS Available” Compliance Extension ........................................ 16

C. Technology Availability ............................................................................ 21

D. Safety....................................................................................................... 24

E. Definition of Port ...................................................................................... 25

F. Low-Use Extension.................................................................................. 28

G. Equipment Manufacturers Delays............................................................ 29

H. Opacity Monitoring Program .................................................................... 31

I. Rural Small Port Exemption..................................................................... 44

J. USEPA Tier 4 Alt PM Emissions Standards ............................................ 45

K. Manufacturers versus End-user Responsibilities ..................................... 47

L. Warranty Engine Replacements .............................................................. 48

M. Non-Yard Truck Equipment Transfers ..................................................... 49

N. Alternative Technologies, Zero Emission and Hybrid Equipment ............ 50

O. CHE Emissions Inventory Methodology................................................... 54

IV. Summary of Public Comments and Agency Responses–Notice of Modified Text. 55
1

State of California

AIR RESOURCES BOARD

Final Statement of Reasons for Rulemaking,

Including Summary of Comments and Agency Responses

PROPOSED AMENDMENTS TO THE REGULATION FOR

MOBILE CARGO HANDLING EQUIPMENT AT PORTS AND 

INTERMODAL RAIL YARDS

Public Hearing Date: September 22, 2011

Agenda Item No.: 11-7-5

I. GENERAL

In this rulemaking, the Air Resources Board (ARB or Board) adopted amendments to 

the Regulation for Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards 

(CHE Regulation). The rationale for the proposed amendments is provided in the Staff 

Report: Initial Statement of Reasons for Rulemaking (“Staff Report”), entitled “Adoption 

of Proposed Amendments to the Regulation for Mobile Cargo Handling Equipment at 

Ports and Intermodal Rail Yards.” ARB made the 45-Day Notice of Hearing (45-Day 

Notice), Staff Report, and all references set forth in the Staff Report and relied upon in 

proposing the specified amendments to the CHE Regulation, were publicly released and 

made available on August 3, 2011. 

The primary purpose of the amendments to the CHE Regulation is to provide additional 

flexibility to CHE owners/operators in complying with the regulation’s requirements by 

reducing compliance costs while continuing to reduce emissions of diesel particulate 

matter (PM) and oxides of nitrogen (NOx). The adopted amendments maintain the 

anticipated emissions reduction benefits of the initially adopted CHE Regulation. The 

amendments include several changes to the compliance requirements for meeting the 

regulation’s in-use emission standards retrofit requirements. The amendments also 

include a new and modified operational compliance requirement. Several definitions

have been added to the regulation to clarify and support these new and modified 

requirements. Additional changes were made, as needed, to provide greater clarity to 

the regulation and direction to affected stakeholders. 

The amendments associated with retrofit-related requirements include: allowing 

additional time for equipment with no verified diesel emission control strategy (VDECS) 

available, adding a safety provision for VDECS, allowing more time for extension 

applications, requiring equipment with a “No VDECS Available” compliance extension to 

be brought into compliance within six months, and allowing compliance extensions for 

experimental diesel PM emissions control strategies for gathering verification data.
2

Amendments associated with CHE operational requirements include: implementation of 

a CHE opacity-based monitoring program, allowing a low-use compliance extension, 

allowing limited non-yard truck equipment transfers, allowing warranty engine 

replacement, and allowing rental of non-compliant equipment for manufacturer delivery 

delays.

Amendments associated with emission standards include: treating Tier 4 engines 

certified to Alternate PM emissions standards as Tier 3 engines and allowing 

demonstration of equivalency for alternative technologies.

Amendments associated with compliance requirements include: allowing compliance 

schedule modification to bring older engines into compliance first and exempting 

equipment at rural low-throughput ports.

At the September 22, 2011, several modifications to the text initially proposed in the 45-

day Notice, and the Board received written and oral comments on the initially proposed 

and modified text. At the conclusion of the hearing, the Board adopted Resolution 11-

30, in which directing the Executive Officer to incorporate the modifications into the 

proposed regulatory text and to make such modifications available for a supplemental 

comment period of at least 15 days in accordance with section 11346.8 of the 

Government Code. The Executive Officer was then directed either to adopt the 

regulations with such additional modifications as he determined to be appropriate or to 

present proposed changes to the Board for further consideration if he determined 

further Board consideration was warranted.

The modified text of the regulations was made available for a supplemental 15-day 

comment period by issuance of a “Notice of Public Availability of Modified Text and 

Availability of Additional Documents” (“15-day Notice”). The 15-day Notice, a copy of 

Resolution 11-30, and the document entitled “Modified Regulation Order” were made 

publicly available on June 15, 2012 by mail to all parties identified in section 44(a), title 

1, California Code of Regulations (CCR), and to other persons generally interested in 

the ARB’s rulemaking concerning cargo handling equipment. The documents were also 

published on June 15, 2012, on ARB’s internet site and an email message announcing 

and linking to the 15-day Notice posting was transmitted to parties that have subscribed 

to “Cargo 11” and “Cargo” list serves for notification of postings pertaining to cargo 

handling equipment. 

The 15-day Notice gave the name, telephone, and fax number of the ARB contact 

person from whom interested parties could obtain the complete texts of the additional 

documents relied upon and the modifications to the original proposal, with all of the 

modifications clearly indicated. The deadline for submittal of comments on the 

suggested modifications was Monday, July 2, 2012. 

After considering the comments received during the supplemental 15-day comment 

period, the Executive Officer issued Executive Order R-12-009, adopting the 
3

amendments to section 2479 in title 13, CCR. The Executive Officer also adopted 

findings under the California Environmental Quality Act.

This Final Statement of Reasons (FSOR) updates the Staff Report by identifying and 

providing the rationale for the modifications made to the originally proposed amended 

regulatory text and updating information in the Staff Report. The FSOR also 

summarizes written and oral comments the Board received on the proposed regulatory 

text during the formal rulemaking process and during the 15-day Notice comment period 

and ARB’s responses to those comments.

Documents Incorporated by Reference. The amendments approved by the Board 

and suggested by staff incorporate by reference the following documents:

(1) Society of Automotive Engineers (SAE) Snap-Acceleration Smoke Test Procedures 

for Heavy-Duty Diesel Powered Vehicles as set forth in SAEJ1667 issued February 

1996; 

(2) International Standard ISO 8178-4(E):1996, “Reciprocating Internal Combustion 

Engines – Exhaust Emission Measurement – Part 4: Test Cycles for Different Engine 

Applications”, [August 1996]; 

(3) International Standard ISO 8178-2(E):1996, “Reciprocating Internal Combustion 

Engines – Exhaust Emission Measurement – Part 2: Measurement of Gaseous and 

Particulate Exhaust Emissions at Site, [August 1996]; and 

(4) International Standard ISO 8178-1(E):1996, “Reciprocating Internal Combustion 

Engines – Exhaust Emission Measurement – Part 1: Test Bed Measurement of 

Gaseous and Particulate Exhaust Emission, [August 1996].

Each of these documents was listed in the 45-day Notice and included in the amended 

regulation as proposed. Existing administrative practice of ARB has been to have 

technical recommended practices, such as the above, incorporated by reference rather 

than printed in the California Code of Regulations. These procedures are highly 

complex technical documents. Because ARB has never printed these types of 

documents in the California Code of Regulations, stakeholders are accustomed to the 

incorporation format utilized in title 13, CCR, section 2479. Moreover, printing portions 

of the documents in the CCR when the bulk of the procedures are incorporated by 

reference would be unnecessarily confusing to the affected public. Additionally, the 

documents from SAE and ISO are copyrighted and are available only for purchase on 

the organizations’ websites. The full documents are instead available for public 

inspection from the Clerk of the Board at 1001 I Street, 23rd floor, Sacramento, 

California 95814.

Fiscal Impacts. Pursuant to Government Code sections 11346.5(a)(5) and 

11346.5(a)(6), the Executive Officer has determined, with the exception noted below, 

that the regulatory action will not create costs or savings to any State agency or in 
4

federal funding to the State, costs or mandate to any local agency or school district, 

whether or not reimbursable by the State pursuant to Government Code, title 2, division 

4, part 7 (commencing with section 17500), or other nondiscretionary cost or savings to 

State or local agencies. The amendments will impose a mandate on some local 

agencies established for the oversight of ports that also own CHE, but any costs 

incurred are not reimbursable under Government Code section 17500 et seq.

ARB staff evaluated the potential economic impacts on representative private persons 

or businesses. ARB staff estimated that while the amendments will result in both costs 

and savings to businesses, the overall total statewide impact on businesses will be a 

net cost of $2.4 to $9.8 million in 2011 dollars over the time period of 2011 to 2020, as 

set forth in Attachment 2 of the 15-day notice. The annual net cost ranges from 

$240,000 to $980,000 statewide. 

The Executive Officer has determined that there will be costs to the ARB to implement

and enforce the proposed amendments. The ARB’s administrative costs for outreach,

educational efforts, technical assistance, and enforcement would be absorbed within 

existing budgets and resources.

Consideration of Alternatives. Staff considered two alternatives to the proposed 

amendments, including: (1) to provide three additional years of extension for engines 

for which there are no VDECS available instead of the proposal for two additional years 

extension, and (2) to not require Tier 4 engines certified to Family Emissions Limits 

Alternative (FEL Alt) PM standards to apply highest level VDECS within one year of 

acquisition. For the reasons set forth in the Staff Report, the Board determined that no 

alternative considered by the agency would be more effective in carrying out the 

purpose for which the regulatory action was proposed or would be as effective and less 

burdensome to affected private persons than the action taken by the Board. 

II. MODIFICATIONS MADE TO THE ORIGINAL PROPOSAL

At the September 2011 hearing, the Board directed the Executive Officer to make such 

additional modifications that he determined to be appropriate consistent with the initially 

proposed amendments as modified by staff proposed changes presented at the 

hearing. All substantial modifications made to the text of the regulation after publication 

of the 45-day Notice were circulated with the 15-day Notice for public comments. These 

modifications to the original proposal are discussed below.

A. Substantive Modifications to Initially Proposed Amendments

Modifications to the initially proposed amendments were made to encourage 

introduction and use of ultra clean technologies such as electric and hybrid equipment; 

ensure fleets are brought into compliance prior to granting low-use compliance 

extensions; provide access to the Alternative Compliance Plan provisions for both yard 

truck equipment and non-yard truck equipment; revise the opacity-based monitoring 
5

program requirements to exempt newer equipment; and require additional disclosure by 

the sellers of equipment and engines subject to this regulation. The following sections 

were either modified or added. 

Section 2479(d)(29): A definition for “Hybrid” was added to support modifications to section 

2479(f)(2).

Section 2479(e)(1)(A)1.b.iii. and (e)(2)(A)4.: These sections were added to allow 

alternative power systems to be used as a compliance option in newly purchased, leased, 

or rented yard trucks not registered as motor vehicles.

Section 2479(e)(1)(B)4. and (e)(3)(B)1.d., 2.d., and 3.d.: These sections were modified to 

clarify data requirements for demonstrating that an engine or power system meets the 

performance requirements and to clarify for which model year standard the engine or power 

system must meet.

Sections 2479(e)(2)(A)5.j. and (e)(3)(A)3.k.: These sections were added to exempt 

equipment less than four years old from the initially proposed amendments to require 

opacity monitoring of in-use cargo handling equipment.

Section 2479(e)(5)(A): This section was added to clarify that, except for the case provided 

for in section 2479(e)(5)(B), equipment that is repowered with a replacement engine is 

considered to be newly purchased, leased, or rented equipment and as such must meet the 

requirements of section 2479(e)(1).

Sections 2479(f)(2) and (f)(2)(D): These sections were further modified to require owners 

or operators who request a compliance extension after the initial two annual compliance 

extensions to either elect to have the equipment subject to the extension request be 

replaced with electric or hybrid cargo handling equipment, if such equipment is available 

and operationally feasible for the intended use, or to have a different piece of equipment or 

yard truck replaced with an electric or hybrid model. In addition, if a requesting owner or 

operator elects to replace the piece of equipment specifically subject to extension request, 

language was added that would require, in certain circumstances, for the owner or operator 

to install a safe and feasible VDECS if one becomes available. The owner or operator 

would not be required to install the VDECS if it is certain that the equipment will be replaced 

with electric or hybrid equipment at the end of the final extension period or if the owner or 

operator has replaced or will replace a secondary piece of equipment with electric or hybrid 

equipment.

Section 2479(f)(2)(B): Section 2479(f)(2)(B) has been further modified to specify that if 

during the first two years of a compliance extension a VDECS becomes commercially 

available for the engine that has been granted a compliance extension, then the owner or 

operator must install the VDECS or otherwise comply with subsection (e)(3).

Section 2479 (f)(2)(C): Section 2470(f)(2)(C) was added to restrict equipment from 

qualifying for more than two compliance extension years if a VDECS cannot be applied 

solely because of high engine exhaust opacity.
6

Section 2479(f)(3): This section was modified to allow the compliance extension for the use 

of experimental diesel particulate matter emission control strategies to apply to yard truck, 

as well as non-yard truck, equipment.

Section 2479(f)(6)(A): This section was modified to make Executive Officer approval of the 

low-use compliance extension contingent upon an owner or operator bringing into 

compliance all applicable non-yard truck equipment in its fleet for which compliance is 

feasible.

Section 2479(h): This section was modified to encourage the use of electric and hybrid 

yard trucks and non-yard truck equipment by allowing hybrid technology and electrification 

to be considered as alternative emission control strategies and by expanding the provision 

to allow cargo handling equipment owners and operators to include yard trucks, as well as 

non-yard truck equipment, in Alternative Compliance Plans.

Section 2479(j)(3)(F): This section was modified to require an owner or operator to include 

information in their annual report about any electric or hybrid equipment purchased in 

response to extension requirements.

Section 2479(p): This section was added to require any person selling an engine certified 

to the alternate Tier 4 family particulate matter emission limits either as part of a piece of 

cargo handling equipment or as an independent engine that will be used in cargo handling 

equipment, to disclose to the buyer that the engine is subject to retrofit requirements of the 

CHE Regulation.

B. Nonsubstantive Modifications to Initially Proposed Amendments and 

Additional Documents Added To the Record

Staff also made minor, non-substantive, modifications throughout the regulatory text 

provided with the 15-day Notice to provide additional clarity. These include the 

following:

Section 2479(c)(3)(A) and (e)(5)(B): The initially proposed amendment that would allow 

an engine that has failed during its warranty period to be replaced with an engine 

meeting the emission standards of the warranted engine rather than those dictated by 

the standards required for newly purchased, leased, or rented equipment was moved 

from section 2479(c)(3)(a) to section 2479(e)(5)(B).

Other non-substantive changes included correcting formatting and grammatical errors, 

and minor administrative changes and corrections. 

In the 15-day Notice, staff identified and corrected several typographical errors and 

other minor corrections in some of the references that were listed in the ISOR. For 

clarity, the following identifies these errors and the necessary corrections.

1. In the Master Reference List for the Proposed Amendments to the Regulation for 

Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards, on page 6 
7

(Appendix B), reference 45. reads, ‘Port of Long Beach (POLB), “Port of Long 

Beach Container Statistics-2010,”’ should read, ‘Port of Long Beach (POLB, 

2011), “Container Trade in TEUs,” 2011.’

2. In the Master Reference List for the Proposed Amendments to the Regulation for 

Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards, on page 6 

(Appendix B), reference 48. is identified incorrectly as, ‘U.S. Environmental 

Protection Agency (USEPA), “NONROAD Model (nonroad engines, equipment, 

and vehicles)”, 2004.’ The correct reference is, ‘U.S. Environmental Protection 

Agency (USEPA), “Exhaust and Crankcase Emission Factors for Nonroad 

Engine Modeling – Compression-Ignition,” EPA420-P-04-009, NR-009, April 

2004.’

3. In the Master Reference List for the Proposed Amendments to the Regulation for 

Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards, on page 8 

(Appendix C), reference 58., California Council on Diesel Education and 

Technology (CCDET, 2011) is dated June 2011. The actual date is July 2011.

4. In the Master Reference List for the Proposed Amendments to the Regulation for 

Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards, on page 8 

(Appendix C), reference 62., CARB Compliance Services, smoke Testing Pricing 

Information (CCS, 2011) is dated May 2011. The actual date is August 2011.

5. In the Master Reference List for the Proposed Amendments to the Regulation for 

Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards, on page 8 

(Appendix C), reference 63., the reference is identified as “California Air 

Resources Board (ARB)” and should be identified as California Air Resources 

Board (ARB, 2011l).”

Additional reference documents were identified and added to the rulemaking record as 

part of the 15-day Notice. These documents were identified in “Attachment 2, Potential 

Economic Impacts of Modifications to the “No VDECS Available” Compliance Extension 

for Mobile Cargo Handling Equipment Operating at Ports and Intermodal Rail Yards”. 

The documents were made publicly available as part of the 15-day Notice and posted 

on the ARB’s website at the following link:

http://www.arb.ca.gov/regact/2011/cargo11/cargo11.htm.

C. Non-substantial or Solely Grammatical Modifications Made After the Close 

of the 15-Day Comment Period

In addition to the modifications described above, the following non-substantial correction 

was made after the close of the 15-day comment period. The references to the 

definitions for “mobile cranes” and “sweepers” on page 2 were corrected from (d39) to 

(d40) and from (d)(63) to (d)(64), respectively, to reflect changes in definition numbering 

due to the addition of a definition as part of the 15-day modifications. The numeral for 

the added definition for “safe” on page 9 was not underlined, although the added 
8

definition was underlined to indicate that it was proposed new language. The error has 

been corrected in the Final Regulation Order and the numeral is now shown underlined.

The verb tense in subsection (e)(3)(B)1.d.(ii) on page 23 was corrected from present 

tense, “conducts”, to past tense, “conducted”. The numerals “6” and “7” had been 

added to the regulatory language for the 15-day modifications on page 34 but were 

erroneously not double-underlined to show their addition. The listed items following

these numerals were double underlined in the 15-Day Notice to indicate that it was 

proposed new language. This error has been corrected in the Final Regulation Order, 

and the numerals are now shown underlined in the regulatory text. 

III. SUMMARY OF COMMENTS AND AGENCY RESPONSES TO THE ORIGINAL 

PROPOSAL

The Board received both written and oral comments during the formal 45-day 

rulemaking comment period, which began on August 8, 2011, and ended on September 

22, 2011, the date of the Board hearing. 

ARB received written and/or oral comments in support of the regulation or the 

rulemaking process from the following persons:

Will Barrett, American Lung Association (Oral)

Bonnie Holmes-Gen, American Lung Association (Written)

Bob Phipps, Bettendorf Trucking (Written and Oral)

Luis Cabrales, Coalition for Clean Air (Written and Oral)

Angelo Logan, East Yard Communities for Environmental Justice (Written)

Gisele L. Fong, PhD, EndOil/Communities for Clean Ports (Written)

Gary Ryerson, Green Diamond Resources (Oral)

Rasto Brezny, Manufacturers of Emissions Control Systems (Written and Oral)

Diane Bailey, Natural Resources Defense Council (Written)

Theresa Livingston, Sierra Pacific Industries (Written and Oral)

Henry Hogo, South Coast Air Quality Management District (Written and Oral)

The comments provided in support of the regulation amendments are not separately 

summarized and responded to in this FSOR.

Written comments were also provided by the persons identified below. Following the list 

is a summary of each objection or recommendation made regarding the proposed 

action and staff’s suggested modifications to the proposed amendments presented at 

the September 22, 2011 Board hearing, together with an explanation of how the 

proposed action has been changed to accommodate the objection or recommendation 

or the reasons for making no change. The comments have been grouped by topic. 
9

 Comments Received During the 45-day Comment Period

 (Excluding Statements in Support of the Regulation)

Abbreviation Commenter

ALA

 

ALA1

American Lung Association

Bonnie Holmes-Gen 

Written Testimony: September 21, 2011

American Lung Association

Will Barrett

Oral Testimony: September 22, 2011

APL

 

APL/Eagle Marine

Robert Clark

Written Testimony: September 19, 2011

BNSF

 

BNSF Railway

Ryan Mills

Written Testimony: September 21, 2011 

CCA

 

CCA1

CCA2

Coalition for Clean Air

Luis Cabrales

Written Testimony: August 23, 2011

Coalition for Clean Air

Luis Cabrales

Written Testimony II: September 21, 2011

Coalition for Clean Air

Luis Cabrales

Oral Testimony: September 22, 2011

CRI

 

CRI1

The California Railroad Industry

Kirk Markwald 

Written Testimony: September 22, 2011

The California Railroad Industry

Darcy Wheeles

Oral Testimony: September 22, 2011
10

DoD

 

DoD1

Department of Defense

C.L. Stathos

Written Testimony: September 12, 2011

Department of Defense

Randal Friedman

Oral Testimony: September 22, 2011 

EYCEJ

 

EYCEJ1

East Yard Communities for Environmental 

Justice

Jocelyn Vivar Ramirez 

Written Testimony: August 23, 2011

East Yard Communities for Environmental 

Justice

Angelo Logan

Written Testimony II: September 21, 2011

EO/CCP

 

EndOil/communities for Clean Ports

Gisele L. Fong, PhD

Written Testimony: September 21, 2011

ITS International Transport Services, Inc.

Gary Dalton

Written Testimony: September 19, 2011

MECA

 

MECA1

Manufacturers of Emission Controls 

Association

Joseph Kubsh

Written Testimony: September 19, 2011

Manufacturers of Emission Controls 

Association

Dr. Rasto Brezny

Oral Testimony: September 22, 2011

MAHA

 

Medical Advocates for Healthy Air

Kevin D. Hamilton 

Written Testimony: August 23, 2011
11

MSC

 

MSC1

Metropolitan Stevedore Company

Craig Kappe

Written Testimony: September 6, 2011

Metropolitan Stevedore Company

Craig Kappe

Oral Testimony: September 22, 2011 

NRDC

 

NRDC1

National Resources Defense Council

Diane Bailey 

Written Testimony: August 23, 2011

National Resources Defense Council

Diane Bailey

Written Testimony II: September 21, 2011

PMA

 

Pacific Maritime Association

Gerald M. Swanson 

Written Testimony: September 19, 2011

PMSA

 

Pacific Merchant Shipping Association

T.L. Garrett

Written Testimony: September 20, 2011

POLB

 

Port of Long Beach

Richard Cameron

Written Testimony: September 21, 2011

SSI

 

Schnitzer Steel Industries

Melissa Cohen 

Written Testimony: September 21, 2011

SCAQMD 

SCAQMD1

South Coast Air Quality Management District

Barry Wallenstein

Written Testimony: September 21, 2011

South Coast Air Quality Management District

Henry Hogo

Oral Testimony: September 22, 2011
12

SSA

 

SSA1

SSA Marine

Stephen Clark 

Written Testimony: August 29, 2011

SSA Marine

Stephen Clark

Oral Testimony: September 22, 2011

UP

 

Union Pacific Railroad

Lanny Schmid

Written Testimony: September 20, 2011 

YT

 

YT1

YT2

Yusen Terminals Inc., Port of Los Angeles

Linda Frame

Written Testimony: September 20, 2011

Yusen Terminals Inc., Port of Los Angeles

Tom Szwajkos

Written Testimony: September 22, 2011

Yusen Terminals Inc., Port of Los Angeles

Tom Szwajkos

Oral Testimony: September 22, 2011
13

A. General Comments

A1. Comment: We believe these amendments are not yet sufficiently balanced and 

should undergo further development before being formally heard by the Air 

Resources Board. We respectively ask that consideration of these amendments 

be delayed until the amendments can be modified to address the important 

pollution reductions that are untapped in the current version. (CCA, EYCEJ, 

MAHA, NRDC)

Agency Response: The “untapped” pollution reductions mentioned in the comment 

refer to modifying the regulation to facilitate the introduction and use of zero and nearzero CHE at California’s ports and intermodal rail yards. In order to facilitate the use of 

zero and near-zero CHE at ports and rail yards, provisions were added to the regulation 

in the 15-day modifications to require the replacement of non-compliant CHE with 

electric or hybrid models, if available, as a condition for obtaining third and fourth years 

of a “No VDECS Available” compliance extension. Other sections modified in the 15-

day modifications provide more opportunities to introduce electric or hybrid CHE into the 

fleets included adding zero and near-zero CHE options to the list of technologies to be 

considered for alternative compliance plans and allowing yard trucks to be included as 

equipment involved in alternative compliance plans. Consequently, with the addition of 

these 15-day modifications, staff did not believe it was necessary or appropriate to 

delay the consideration of the proposed amendments. 

A2. Comment: We acknowledge the fact that ARB staff has worked vigorously to 

address concerns from CHE owners/operators. However, we feel that the 

amendments to accommodate industry will create more pollution among the many 

California communities already impacted by intermodal rail yards and port 

terminals activities. (CCA, EYCEJ, MAHA, NRDC)

Agency Response: The amendments provide both more flexibility to industry as well 

as protect the emissions reductions provided by the original regulation. In proposing the 

amendments, ARB staff evaluated the potential emissions impacts associated with the 

amendments, including the additional years of compliance extensions, in the Initial 

Statement of Reasons (ISOR). To mitigate these potential emission impacts, ARB 

added 15-day modifications to the proposed amendments, described in the response to 

Comment A1 above, to address the commenter’s concerns. As discussed in the 

response to Comment A1, these provisions were added to facilitate the introduction of 

electric and hybrid equipment into port and intermodal rail yard CHE fleets. The 

modifications effectively mitigate the minimal PM emissions impacts of the 

amendments. 

The initially proposed amendments would have resulted in a small delay in NOx 

emission reductions from 2012 through 2016 compared to the reductions estimated in 

the originally adopted 2006 rulemaking. These emissions have been partially offset by 

the 15-day modifications referred to above. The overall emissions impacts of the 

amendments resulted in a small (0.37 tpd) net increase in NOx relative to the emission 
14

reduction estimates in the original regulation but does not impose any significant effect 

on the environment based on the environmental conditions existing on August 3, 2011, 

the date the environmental analysis in the Staff Report was published. Additionally, the 

identified delay in emissions reductions has been effectively offset by voluntary early 

compliance of fleets at ports and intermodal rail yards between 2007 and February 21, 

2012, the date that EPA granted California authorization to enforce the CHE regulation 

emission standards. It is estimated that early compliance has resulted in 2.9 tons per 

day (tpd) of NOx reductions. These reductions far outweigh the emissions delays due to 

the amendments. 

A3. Comment: As the economy continues to improve and operators need to replace 

retired equipment, CARB should seize the opportunity to shape equipment 

modernization toward the purchase of the cleanest available technology. Unless 

CARB sets a strong guideline to move away from diesel-based technologies, 

industry will go for the minimum requirement to achieve only the emissions 

standards required by the rule. Staff needs to set stronger emissions guideline that 

will help CARB and regional and local government agencies achieve their GHG 

emissions reductions per the Scoping Plan Goals. (CCA, EYCEJ, MAHA, NRDC)

Agency Response: The Administrative Procedures Act, which governs ARB’s 

regulatory process for adopting regulations, directs ARB to adopt performance based 

standards when possible rather than prescriptive standards. Consequently, our CHE 

regulation sets a standard by which the regulated community must comply but does not 

specifically direct the compliance method. It should also be noted that this regulation is 

one of several mechanisms that are available to reduce emissions from CHE. Local air 

quality management and air pollution control districts, local planning and zoning 

agencies, ports, and incentive funding all can play a significant role in moving us 

toward zero and near-zero technologies. Please also see the response to Comment A1 

regarding the provisions added to the regulation in the 15-day modifications to 

encourage the use of new electric and hybrid equipment. 

For example, there are various ARB incentive programs which are devised to promote 

the demonstration and commercialization of new cleaner technologies. Specifically, the

Air Quality Improvement Program (AQIP), established by the California Alternative and 

Renewable Fuel, Vehicle Technology, Clean Air, and Carbon Reduction Act of 2007 

(Assembly Bill (AB) 118, Statutes of 2007, Chapter 750), is a voluntary incentive 

program administered by the Air Resources Board (ARB or Board) to fund clean vehicle 

and equipment projects, research on biofuels production and the air quality impacts of 

alternative fuels, and workforce training. Additionally, the Carl Moyer Program is a 

voluntary incentivize program administered by the local air districts to fund projects that 

result in emission reductions that are above and those required by direct regulation. 

These programs help incentivize the introduction and use of the cleanest available

equipment. 

Additionally, the CHE regulation is a diesel PM regulation which focuses its emission 

reduction strategies on reducing the public’s exposures to diesel engine exhaust. ARB 
15

staff has provided CHE owners/operators with a number of compliance pathways that 

encourages the selection of a strategy to meet the emissions reduction requirements 

set forth in the regulation and includes GHG emissions reductions, but GHG emissions 

reductions are not a primary focus of this regulation. 

A4. Comment: Regarding the amendment clarifying that equipment brought onto a 

port terminal or intermodal rail yard solely for construction or unexpected repairs 

are exempt from the CHE Regulation, SSI supports this clarification and it is 

consistent with our statement that the CHE Regulation should only control 

emissions from equipment that handles “cargo”. ... The CHE rule should only 

control the emissions from equipment that handles “cargo” at a port; and the OffRoad rule should control the emission from equipment used at non-port facilities. 

For SSI Oakland, the equipment used in the designated terminal should be 

covered by the CHE rule, and equipment used in the scrap metal manufacturing 

facility should be covered by the Off-Road Rule. (SSI)

Agency Response: The equipment that the regulation applies to was specified in the 

CHE Regulation as adopted in 2005. The amendments clarified this provision. As 

defined by section 2479(b) and (d)(9) of the CHE Regulation, the equipment operating 

at the commenter’s facility is not related to construction projects or unexpected repairs

and the facility is within the designated port. As such, the commenter’s equipment is 

subject to the CHE Regulation and would not be exempt from the CHE Regulation.

A5. Comment: SSI believes that our costs to purchase new equipment, to purchase 

and install retrofit VDECS, to test retrofit equipment, to operate retrofit 

equipment, and to perform opacity testing will be significantly higher than what 

CARB has stated and the costs will place us at a competitive disadvantage within 

our industry. Furthermore, if SSI is forced to replace Tier 3 technology ahead of 

its useful life, costs will increase even further. Finally, since there have been no 

significant VDECS developments in the last four years, and we don’t expect 

VDECS will be developed in the next few years, it may become necessary to 

purchase new equipment in situations where CARB staff estimated that costs 

could be minimized through the installation of retrofit technology. (SSI)

Agency Response: Costs associated with purchasing new equipment and retrofitting 

existing equipment were part of the initially adopted regulation in 2006 and are not 

subject to economic analysis here. The basis of ARB staff’s estimates on the cost of 

the opacity monitoring program is provided in Appendix C of the ISOR. As documented 

in the references, staff depended on information provided by ARB staff currently 

performing and studying opacity monitoring as well as information from industry sources 

performing such monitoring. 

The commenter expresses concern that they will need to replace Tier 3 technology 

before the end of its useful life. The commenter is referring to newly purchased 

equipment. The CHE Regulation does not require Tier 3 technology to be replaced or 

repowered. Newly purchased equipment with Tier 3 engines are required to be 
16

retrofitted with the highest level VDECS available. However, if a VDECS is not 

available for this newly purchased Tier 3 equipment, there are no requirements to either 

obtain extensions or replace the equipment. 

A6. Comment: In addition, with appropriate amendments, the regulation can also 

serve as a backstop should the actions being taken to have the Class I railroads 

commit to additional PM emission reductions at the four rail yards in the South 

Coast Air Basin do not come to fruition or if the Class I railroads do not meet 

such commitments in the future. (SCAQMD, SCAQMD1)

Agency Response: This comment is not responsive to the amendments in this 

rulemaking and therefore no response is needed. 

B. “No VDECS Available” Compliance Extension

B1. Comment: We are requesting the ARB to define the scope of “if available” in 

terms of technical and economic feasibility when evaluating the availability of 

electric or hybrid equipment as well as allow for other technologies besides only 

electric and hybrid equipment. BNSF believes that the technological feasibility of 

an electric or hybrid application for rubber tired gantry (RTG) cranes is currently 

unproven. BNSF is concerned with committing scarce capital towards equipment 

replacements without adequate understanding of the performance of the 

equipment and its interaction with our current operation. Implementing newer 

technologies without data on technical feasibility and operational success could 

compromise intermodal operations. (BNSF)

This proposal must consider the applicability and cost of available electric or hybrid 

equipment at the time the extension expires. Tests of heavy-duty battery-powered 

electric equipment in a real time marine terminal operation have not, to date, been 

successful. Grid powered electric equipment requires very substantial capital 

investment in electrical infrastructure as well as lengthy permitting and construction 

processes which could make an electric option impractical if a grid based power 

supply does not already exist. In the event that neither a hybrid nor electric option 

is available, the equipment operator needs a viable diesel option. (YT) 

We have concerns regarding how “availability” of electric and hybrid equipment 

would be determined. While electric and/or hybrid equipment may be 

commercially available, they may not be suitable for use at an intermodal facility. 

Also, the requirement is prescriptive and removes the operator’s flexibility to 

choose the compliance option that best fits their operations; such as repowering of 

the equipment with the then-currently available Tier engines. (UP)

Agency Response: The 15-day modifications added requirements to replace noncompliant equipment with electric or hybrid models, where available, in order to qualify 
17

for third and fourth years of the “No VDECS Available” compliance extension. Included 

in the language are the caveats that the technology must be “commercially available, 

technically feasible giving consideration to cost, or operationally feasible for the 

intended use for the application for which the extension is granted.” These 

requirements were added to promote the introduction of zero and near-zero 

technologies into the CHE fleets at ports and intermodal rail yards. Additionally, in the 

Board resolution, the Board directed ARB staff to conduct a comprehensive assessment 

of zero-emission cargo handling equipment technologies including, but not limited to,

the associated costs, cost-effectiveness, and feasibility. An evaluation of infrastructure 

costs will be included in this assessment. ARB staff has initiated this assessment. As 

documented in the Attachment 2 of the 15-day modifications, our first initial assessment 

has determined that electric and hybrid equipment are currently available for only a 

limited array of CHE, primarily yard trucks, small forklifts, and RTG cranes. The full 

assessment is anticipated to be completed by the end of 2012 or early in 2013. Finally, 

CHE owners/operators can choose not to apply for these additional years of “No

VDECS Available” Compliance Extension if they are apprehensive about investing in 

electric or hybrid equipment. 

B2. Comment: As drafted, the ISOR does not include an assessment of 

technologies available to replace the equipment affected by these amendments. 

Staff needs to show that the equipment that will be exempted or given two more 

years to update with retrofits cannot be replaced with equipment currently 

available in the market. (CCA, EYCEJ, MAHA, NRDC)

Agency Response: See response to Comment A1 regarding the provisions added to 

the regulatory language in the 15-day modifications to require, in association with the 

third and fourth years of “No VDECS Available” compliance extension, the replacement 

of non-compliant equipment with electric or hybrid models, if available. See response to 

Comment B1 regarding staff completing a technology assessment. 

B3. Comment: CARB needs to address the rapidly-growing market of zero 

emissions and hybrid CHE. The rule amendments should promote and 

acknowledge the recent and rapid development of zero emissions and hybrid 

technology for cargo handling equipment, especially where VDECS are 

purportedly ineffective or unavailable. (CCA, EYCEJ, MAHA, NRDC)

Agency Response: See response to Comment A1 regarding the provisions added to 

the regulatory language in the 15-day modifications to require, in association with the 

third and fourth years of “No VDECS Available” compliance extension, the replacement 

of non-compliant equipment with electric or hybrid models, if available. Also see the 

response to Comment A3 which identifies the role other entities play in the move to zero 

and near-zero technology, and the response to Comment B1 regarding ARB’s 

commitment to conduct a technology assessment.

B4. Comment: Adding extensions to the current two year maximum annual “No 

VDECS Available” compliance extension for in-use non-yard truck equipment –
18

while the emissions created by this extension may be relatively small, we are 

concerned about the cumulative impacts that these and other regulations’ 

amendments will have on fence line communities. (CCA, EYCEJ, MAHA, NRDC)

Staff needs to provide a cumulative impacts report taking into account the excess 

emissions created from amendments to this regulation and the emissions created 

from other diesel regulations amended in the past few years. This cumulative 

impacts assessment should include the following regulations’ amendments: 

• Statewide Truck and Bus (December 2010), 

• Off-road Equipment (December, 2010), 

• Ocean-going Vessel Fuels (June, 2011), 

• Transportation Refrigeration Units (TRUs) (November, 2011)

• Cargo Handling Equipment (September, 2011), and

• Any other recent or proposed amendment to regulations related to diesel 

engines.

(CCA, EYCEJ, MAHA, NRDC)

Agency Response: The potential emissions impacts associated with adding two years 

to a CHE owner/operator’s “No VDECS Available” compliance extension has been 

evaluated and the results of that evaluation were presented in the ISOR for the 

proposed amendments to the CHE regulation. The overall emissions impacts of the 

amendments resulted in a net decrease in diesel PM and a small (0.37 tpd) net increase 

in NOx relative to the emission reduction estimates in the original regulation but does not 

impose any significant effect on the environment based on the environmental conditions 

existing on August 3, 2011, the date environmental analysis in the Staff Report was 

published. As discussed in the response to Comment A2, the identified NOx impact has 

been effectively offset by voluntary early compliance of fleets at ports and intermodal 

rail yards between 2007 and February 21, 2012, the date that EPA granted California 

authorization to enforce the CHE regulation emission standards. It is estimated that 

early compliance has resulted in 2.9 tpd of NOx reductions. These reductions far 

outweigh the 0.37 tpd NOx emissions delays due to the amendments. Additionally, the 

modifications to the regulation made since the ISOR was released to the public have 

further mitigated these minimal emissions impacts. 

ARB has determined that the CHE Regulation amendments will not cause an increase 

in PM or NOx emissions that will have a significant adverse impact to the environment. 

Early compliance and the 15-day modifications effectively mitigate any significant 

adverse impact attributable to cargo handling equipment, as noted above and in the 

response to Comment A2. The Board previously found that recent amendments to the 

Truck and Bus and In-Use Off-Road regulations did not result in a significant 

environmental impact. Furthermore, the 2010 amendments to the Drayage Regulation

resulted in greater NOx reductions and the 2011 amendments to the Ocean-going 

Vessel Fuel Regulation amendments resulted in greater PM emission reductions, than 

what would have occurred without the amendments, not fewer. The additional 

reductions due to these amendments occur largely in and around port and intermodal 

rail yards. The 2010 TRU amendments, which is statewide in its impact and not 
19

localized in and around the ports and intermodal rail yards, resulted in small delays in 

PM reductions totaling 0.2 tpd. These small increases from the TRU amendments were 

considered to have been offset by the early emissions reductions achieved through 

early compliance with the regulation, considered surplus because ARB did not receive 

authorization from USEPA to enforce until January 2009. 

B5. Comment: While SSI supports CARB’s proposed additional two year extension 

for in-use non-yard truck equipment for which there are not VDECS available, we 

are concerned that an additional two years will not be sufficient. SSI has been 

working with multiple VDECS vendors for over four years in the hope that 

feasible VDECS technology would be developed, but so far it has not. 

Furthermore, we purchased new Tier 3 technology per the requirements of the 

CHE rule, and a significant portion of our Tier 3 fleet is unlikely to have retrofits 

available within the next two years due to the need for significant changes in the 

engine compartment design for non-yard tuck equipment. 

CARB should amend the CHE rule and assure the CHE fleet operators that if 

they can purchase Tier 3 equipment per the requirements of the rule, then the 

operator can continue to operate that equipment until a safe VDECS retrofit 

technology is proven for their specific equipment, under their specific operating 

conditions, at their specific duty cycle – and all under warranty. The retrofit 

requirements of the amended CHE rule should allow for annual compliance 

extensions until VDECS becomes available – and not limit the number of 

extensions. (SSI)

Agency Response: The “No VDECS Available” compliance extension is in reference 

to compliance requirements for in-use equipment. For in-use equipment, retrofitting 

with highest level VDECS is one of several compliance paths available. If VDECS is not 

available for equipment, other compliance options include repowering the equipment 

with the cleanest available engine, replacing the equipment with equipment with the 

cleanest available engine, or retiring the equipment. 

Newly purchased equipment with Tier 3 engines are required to be retrofitted with 

highest level VDECS available. If a VDECS is not available, there are no requirements 

to either obtain an extension or replace the equipment. So use of this Tier 3 equipment 

is not limited by the number of years of compliance extensions available. The operator 

may continue to operate the equipment until a safe and feasible VDECS becomes 

available for their newly purchased Tier 3 equipment. 

The ARB Verification Procedure requires that VDECS go through extensive testing 

which delineates the duty cycle requirements for safe effective operation. These duty 

cycle requirements, as well as the equipment applications, are specified in the executive 

order that is issued when the emission control device is verified. The testing 

requirements include 1,000 hours of durability testing of the emission control device to 

determine if can be safely operated with specific equipment, under specific operating 

conditions, at specific duty cycles. In addition, the Verification Procedure requires an 
20

applicant to complete a field demonstration of their product before it can be verified. 

The field test is designed to demonstrate that an applicant’s diesel emissions control 

strategy works with the designated engine duty cycle and application in actual field 

conditions. The ARB Verification Procedure also provides for warranty of the VDECS. 

B6. Comment: For a piece of equipment which has been granted a “No VDECS 

Available” compliance extension, to the extent VDECS fail to materialize and are 

not available within this window (third and fourth years), we encourage you to 

consider language that makes an additional extension automatic. (SSA)

Agency Response: As new aftertreatment control technologies become verified, CHE 

owners/operators need to evaluate whether those technologies will work with their 

equipment. Additionally, language added as part of the 15-day modifications has

imposed additional requirements that the owners/operators must agree to in order to 

obtain a third and fourth year compliance extension. These modifications make 

additional years of extension contingent upon the fleet owner/operator agreeing to 

replace non-compliant equipment with electric or hybrid models if such equipment is 

available. These changes preclude automatically granting additional years of “No 

VDECS Available” compliance extension because they require the owners/operators to 

evaluate if they wish to commit to the requirements prior to applying for the additional 

extension years. 

B7. Comment: The requirements that a CHE owner/operator must meet to be 

granted an additional two years of a “No VDECS Available” compliance 

extension limit BNSF to replacing many of our RTG cranes with only electric or 

hybrid system if we obtain these extensions. We request that the language be 

amended to allow other repower options such as Tier 4 engines, which BNSF is 

considering. (BNSF)

Agency Response: The requirements are intended to support the introduction of 

electric or hybrid CHE in the terminal and intermodal rail yard fleets. ARB staff 

recognizes that there are limited electric and/or hybrid equipment options for 

owners/operators of specific types of equipment. As part of the 15-day modifications,

language was added to address this issue and is discussed in the response to comment 

B1. In addition, RTGs can currently be retrofitted with VDECS or repowered to Tier 4. 

ARB staff does not anticipate granting RTG cranes additional years of “No VDECS 

Available” extensions.

B8. Comment: We strongly support limited compliance extensions for old equipment 

with high engine out particulate for which no exhaust controls are available. 

(ALA, CCA1, EO/CCP, EYCEJ, NRDC)

Agency Response: As part of the 15-day modifications, language was added to put 

into place additional limits for old equipment with high engine out particulate. This 

added language limits ”No VDECS Available” extensions to the original two years of 
21

extension for engines for which excessive engine exhaust opacity is the only reason a 

VDECS cannot be installed. 

B9. Comment: The revision of the requirements to qualify for the third and fourth year 

of “No VDECS Available” extension that would require cleaner engines or similar 

to allow us to use that equipment took away a window of opportunity for us in 

Stockton. (MSC1)

Agency Response: See response to Comment A1 regarding the reasons why this 15-

day modifications language was added. These revisions require that equipment 

operators agree to replace non-compliant CHE with electric or hybrid models if 

commercially available and technologically feasible, with consideration to cost. 

C. Technology Availability

C1. Comment: It is the consensus of all terminal operators that existing VDECS 

technology does not fit our operations evidenced by the premature regeneration 

problems associated with the VDECS such as burned out glow plugs and other 

electrical issues. These are just a few of the continuing mechanical/software 

problems we face. An extension for verified device testing and availability would

allow time for issues to be presented and addressed. (PMA)

CHE owners/operators should not be required to adjust, set-aside, or re-engineer 

very expensive and mission-critical equipment in order for manufacturers to 

continue to bring their products up to the operational emissions standards of the 

State and Port of Long Beach (POLB). It is our position that manufacturers have 

prematurely introduced products into the market in a rush to obtain market share 

when in fact many of these emissions control products have not been fully vetted 

within the marine terminal environment. It is our position that additional funding 

must be made available and additional time allotted to both marine terminals and 

manufacturers for achievement of requisite real-world compliance and 

performance testing. To date this has not been the case. (ITS)

Regarding VDECS retrofits, our experience is that VDECS manufacturers are 

rushing into the market without first demonstrating the viability and durability of 

their product in our working environment. SSI cannot be expected to pay for untested equipment and then serve as the testing ground for new technology. Such 

activity will place us at a competitive disadvantage within the industry. (SSI)

Agency Response: ARB’s Regulation for the Verification Procedure for In-Use 

Strategies to Control Emissions from Diesel Engines, California Code of Regulations, 

Title 13, Division 3. Chapter 14, sections 2700 through 2711, requires a stringent 

regiment of testing, including both emissions tests and 1,000 hours of durability testing 

as well as 200 hours of field testing prior to a diesel emission control strategy (DECS)

obtaining verification for an off-road application. This testing must provide sufficient 

information to determine the engines the verification is applicable to as well as the duty 
22

cycle. Each verified device must pass both durability and field testing prior to receiving 

ARB verification. If equipment owners/operators experience operational issues with 

VDECS, ARB staff is available to help determine the cause and remedy. As discussed

in Chapter II of the ISOR, ARB staff conducted a CHE technology meeting in May, 

2011. This was a forum for VDECS manufacturers and equipment owners/operators to 

discuss VDECS issues and solutions. ARB staff has committed to conducting additional 

meetings in the future. 

As discussed in Chapter II of the ISOR, many owners/operators feel that their 

equipment duty cycles are not amenable to retrofit with VDECS due to the large amount 

of idling that occurs during vehicle operation as well as the accompanying low exhaust 

temperature. However, active diesel emission control strategies can be used with a 

wide range of engine duty cycles because the device monitoring system detects when 

regeneration is needed and initiates it. 

ARB has partnered with CHE owners/operators to demonstrate DECS at California’s 

port and intermodal rail yards. Grants were offered to CHE owners/operators to fund 

the installation of CHE-specific retrofit technologies for the purposes of using the 

resulting performance information to pursue ARB DECS verification for that technology. 

C2. Comment: CARB should not verify VDECS technology until it has been 

demonstrated on the same equipment we operate and under our type of working 

environment. Anything less is simply an undue burden on our company. (SSI) 

Agency Response: Please see response to Comments B5 and C1 regarding the ARB 

Verification Procedure and how it relates to equipment operating at a marine terminal.

C3. Comment: ARB needs to require additional duty cycle testing in the field before 

approval of an emissions device. Cummins, with all their engineering resources, 

had issues with the USEPA 2007 engine. Any point in time, I had 16 to 22 

pieces of equipment out of service when we went over to the on-road engine. I’m 

expecting the same issues with the 2011 USEPA engine. (YT)

There have been issues associated with CHE equipment powered by engines 

certified to the USEPA 2007 non-road emissions standards operating in CHE 

engine duty cycles. One commenter has experienced a 25 percent failure rate 

for these engines and they continue to work on those engines. It is anticipated 

that the same will be true when engines certified to the USEPA 2011 non-road 

emissions standards are introduced in the CHE population. (SSA1, YT2)

Agency Response: As discussed in Chapter II of the ISOR, ARB staff conducted a 

CHE technology meeting in May, 2011. During the course of that meeting, one of the 

issues discussed was the compatibility of the on-road engines yard truck CHE are 

powered by. Representatives of the engine manufacturing firm that supplies the 

engines for yard trucks was at that meeting. As discussed in the ISOR, the engine 

manufacturer representatives have worked with CHE owners/operators since that 
23

meeting to resolve engine performance issues through improved maintenance 

practices, engine software updates, and an exhaust pipe replacement, and have made 

commitments to continue to work with CHE owners/operators to resolve any future 

issues. The findings from the Cummins representative indicated that he found multiple 

causes for the operational problems and suggested maintenance practices and 

upgrades to deal with the different issues. One of the fundamental issues was that 

some yard truck operators were not providing necessary maintenance, primarily related 

to the DPF regeneration. This maintenance is necessary for successful operation and, 

if neglected, can result in a myriad of service problems. 

C4. Comment: ARB needs to require additional duty cycle testing in the field before 

approval of an emission device. We suggest that ARB extend a “shake down” 

period for new VDECS when they come onto the market. This would for allow 

additional time to work out any problems that may occur when new equipment is 

first put into service as is frequently the case. (PMSA, YT2)

Agency Response: Please see the response to Comment C1 regarding the 

ARB Verification Procedure and the extensive testing required for ARB Verification. 

The ARB Verification Procedure also requires VDECS manufacturers to work closely 

with CHE equipment owners/operators to determine if available VDECS have 

applicability to the equipment to be retrofitted.

C5. Comment: ARB expects small diesel particulate filter (DPF) manufacturers with 

limited resources to design and build a piece of equipment, a DPF, and it works 

well in the laboratory environment, but when you put in our environment, it fails 

miserably. All we are asking is a consistent level playing field in this regulation. 

(YT2)

Agency Response: While some companies that manufacture VDECS are “small 

manufacturers,” many of them are international, multi-million dollar corporations that 

have been in the business of developing and manufacturing DPFs for many years. 

Please see the response to Comment C1 regarding the testing required for an emission 

control device to become ARB verified, including field testing. The ARB Verification 

Procedure also requires VDECS manufacturers to work closely with CHE equipment 

owners/operators to determine if available VDECS have applicability to the equipment 

to be retrofitted.

C6. Comment: If SSI needs to first evaluate a new technology under real-world 

operating conditions, then the 6 month period to bring equipment into compliance 

if VDECS becomes available is too short and should be extended to 1 year. 

Given the poor past performance of VDECS retrofits on SSI’s and similar 

equipment, SSI cannot be expected to retrofit a fleet of equipment until it is 

certain that the technology will work in a cost-effective manner. (SSI)

Agency Response: Please see responses to Comments C1 and C4 regarding

responses to the issue that owners/operators do not believe that VDECS are verified for 
24

their operating environment, the extensive testing requirements of the ARB Verification 

Procedure, and the Verification Procedure requirement that VDECS manufacturers work 

closely with CHE owners/operators to determine VDECS applicability. Six months is 

adequate time to determine if a VDECS can be used with certain equipment. 

C7. Comment: I got this from ARB yesterday (a letter). It says you may experience 

catastrophic failure in this system (Cleaire Allmetal). I just spent 40 grand on it. 

This has been approved by CARB and gone through the whole deal. And now 

I’ve got – I’m stuck with this junk. This is the latest and greatest and the best 

system out there. Now what do I do? (SSA1)

Agency Response: ARB staff is currently reviewing the application for verification of 

the Cleaire Allmetal system. Like the LongMile system, its on-road counterpart, the 

Allmetal system must undergo design modifications before being redeployed. The 

LongMile system has already been successfully modified, verified, and put back into 

service. The situation for the Allmetal system is more involved because in addition to 

the design modifications, it must also move from its conditional verification status to full 

verification. ARB staff has asked SSA if they wish to remove the VDECS and the 

response was that it was working well and they preferred to keep the VDECS on the 

equipment. If SSA determines that they wish to remove the VDECS, per subsection 

(g)(1), in cases of VDECS failure, the owner/operator has 90 days to bring the 

equipment into compliance. 

D. Safety

D1. Comment: Determination of what constitutes a safety or feasibility issue must be 

clarified for the “No VDECS Available” compliance extension. (CCA, EYCEJ, 

MAHA, NRDC)

Agency Response: Feasibility and safety-related issues will be evaluated on a caseby-case basis by the aftertreatment control manufacturer with the assistance of a 

licensed professional engineer.

D2. Comment: It is our understanding that the Division of Occupational Safety and 

Health (Cal/OSHA) is drafting a visibility regulation to govern the placement of 

VDECS. Even though we are in the process of retrofitting equipment, we hesitate 

to install a VDECS for fear of being in violation of possible pending regulations. 

Although it was unanimously agreed at the time of the installs that no visibility was 

restricted, that is not to say that these installs will not be deemed as non-compliant 

when the OSHA regulation is issued. (APL, PMA)

Agency Response: Cal/OSHA approved guidelines that the commenters are referring 

to regarding VDECS visibility issues. These guidelines were developed specifically for 

equipment used at construction sites and do not apply to CHE at marine terminals and 

intermodal rail yards. Cal/OSHA guidelines for CHE at marine terminals and intermodal 

rail yards require that safety related issues be evaluated with the assistance of the 
25

original equipment manufacturer and/or a licensed professional engineer. The 

aftertreatment control manufacturer generally coordinates the evaluation of these 

issues. 

D3. Comment: The “No VDECS Available” compliance extension for safety reasons 

addresses visibility and space constraints in equipment retrofits. Break bulk 

equipment are subject to both of these issues when evaluating whether a VDECS 

is compatible with a piece of equipment or not. Generally speaking, break bulk 

equipment is one-of-a-kind specialty equipment. (SSA)

Agency Response: See response to Comment D2. The evaluation of the applicability 

of VDECS is to be done on a case-to-case basis in consultation with the original 

equipment manufacturer and/or a licensed professional engineer, generally coordinated 

by the aftertreatment control manufacturer representative. 

E. Definition of Port

E1. Comment: It is important to clarify that diesel-fueled equipment within the 

boundaries of the port or intermodal rail yard, including those at non-port or nonintermodal rail yard related businesses, are subject to the regulation. (APL)

Agency Response: The intent of the CHE Regulation, since the time that the 

regulation was proposed to the Board in 2005, has been to include all businesses 

operating within the boundaries of California’s ports and intermodal rail yards. 

Language was added to the definition of port to clarify this intent. In addition, see the 

response to Comment A4 regarding the regulation clarification that equipment brought 

on to a port or intermodal rail yard solely for construction or unexpected repairs is 

exempt from the CHE Regulation. The CHE Regulation is one of several measures that 

have been adopted to reduce the health risk to the surrounding communities of ports 

and intermodal rail yards from the emissions of diesel fueled equipment and marine 

vessels. ARB completed a diesel particulate risk assessment on the Ports of Los 

Angeles and Long Beach in 2006. The findings showed that CHE was one of the 

primary contributors to the higher pollution-related health risks near ports. While the 

surrounding communities had the highest risk levels, diesel emissions from the ports 

resulted in elevated cancer risk levels over the entire 20-mile by 20-mile study area. To 

protect public health, it is necessary to control the emissions from all diesel-fueled 

equipment that reside and operate within port and intermodal rail yard boundaries. 

E2. Comment: CARB’s staff has proposed that diesel-fueled equipment within the 

boundaries of the port or intermodal rail yard, including those at non-port or nonintermodal rail yard related businesses, be subject to the regulation. This is a 

significant change and not a clarifying statement. We have our reservations over 

the basis for such a change, but also wonder how CARB intends to notify and 

enforce these requirements on all small and/or small disadvantaged businesses. 

(SSA)
26

Agency Response: See response to Comment E1 regarding the original intent of the 

CHE Regulation and the need to control emissions from all diesel-fueled equipment that 

resides and operates within the port or rail yard boundaries. ARB staff has worked 

closely with the owners/operators of California’s ports and inter-modal rail yards to 

obtain contact information for all of their tenants so they could be contacted and 

informed of their obligations under the CHE regulation. Notifications of workshops, 

regulatory advisories, and technology evaluation conferences are distributed to a list 

serve of approximately 4,000 businesses and individuals. The workshops and 

regulatory advisories in particular are intended to provide the regulated community with 

an opportunity to ask questions and provide comments. ARB staff continues to work 

with members of the CHE regulated community to facilitate compliance with the CHE 

Regulation. 

E3. Comment: The definition of port should not include non-cargo activities at 

privately operated facilities that are not on port property. SSI Oakland contains 

two separate operations – one for the manufacture of scrap metal and one for the 

shipment of cargo. For SSI Oakland, the equipment used in the designated 

terminal should be covered by the CHE rule, and the equipment used in the 

scrap metal manufacturing facility should be covered by the Off-Road Rule. The 

terminal location is segregated from the manufacturing facility by a secure 

fencing. SSI Oakland is not affiliated with the Port of Oakland. Other regulatory 

bodies designated a separation of Port and Non-Port areas. The CHE rule 

should only control the emissions from equipment that handles “cargo” at a port. 

Our equipment used in the scrap metal manufacturing facility should be covered 

by the in-use off-road rule. We worked with the U.S. Coast Guard, as well as the 

Department of Homeland Security, to establish boundaries between our terminal 

and our manufacturing operations. (SSI)

The original intent of the CHE Regulation was to reduce emissions from diesel 

equipment used to move cargo at California Ports. Historically, SSI Oakland has 

not been considered a port. When CARB originally initiated its outreach for the 

2005 CHE rule, it did not engage with SSI, and SSI thus did not have the ability 

to comment on the original rule. In addition, when state funding was made 

available to ports and their tenants to upgrade equipment, SSI did not qualify for 

such program. Finally, when CARB initiated its outreach for the Off-Road rule, 

SSI was correctly contacted because we are a scrap recycler and processor that 

operate off-road equipment. (SSI)

Agency Response: See responses to Comments E1 and E2 regarding the need to 

control diesel emissions within port and intermodal rail yard boundaries and the original 

intent of the CHE Regulation. The CHE Regulation definition of “port” includes “...all 

property within the physical boundaries of the port or demarcated as the port on city or 

county land maps....” The commenter’s property fits that definition. The SSI Oakland 

facility is bounded on all sides by either other port facilities or by port waters. The entire 

facility is within the boundaries of the Port of Oakland and the diesel-fueled equipment 

is subject to the CHE Regulation. The CHE Regulation is especially stringent because 
27

of the impact of port emissions on the communities surrounding the ports. The health 

risk issues the CHE Regulation is working to mitigate are very different from those 

addressed by the U.S. Coast Guard and the Department of Homeland Security. 

As stated above, the original intent of the CHE Regulation was to reduce health risk 

from diesel emissions at California’s ports and intermodal rail yards. Equipment 

operators at the Port of Oakland were intended to be subject to this rule from the 

original conception. Additionally, while the CHE Regulation controls emissions from all 

diesel off-road equipment operated within the port boundaries, not all subjected 

equipment is specifically used to handle cargo. As the commenter suggests, if this 

equipment were to be operating outside the port boundaries, it would be subject to the 

Off-Road Equipment Regulation, however, the Off-Road Equipment Regulation 

specifically exempts equipment covered by the CHE Regulation. 

Very few cargo handling equipment operators were able to qualify for incentive funding 

because incentive funding will only pay for actions that are either early or obtain 

reductions above what is required by the regulation. Since the CHE Regulation has 

quick and stringent compliance requirements, CHE operators generally were not eligible 

for this funding. 

E4. Comment: Clarify regulatory language: definition of port. Clarification of the 

regulatory language is necessary. In part, the regulation has not been well 

communicated and explained to all affected parties. Extensive resources have 

been required not only for compliance, but also for understanding the 

requirements. (ITS, PMA)

Agency Response: ARB staff has been diligent in their efforts to communicate the 

regulatory requirements to the regulated community. ARB staff held five public 

meetings and four workgroup meetings during the development of the original regulation 

in 2004. ARB staff held one implementation workshop and various meetings with port 

tenants when invited. As documented in Chapter I of the ISOR, ARB staff held four 

public workshops and meetings to discuss the amendments to the existing regulation. 

In addition, ARB has issued seven enforcement advisories associated with the CHE 

regulation since February, 2007. Additionally, ARB staff contact information is provided 

on the ARB Cargo Handling Equipment Regulatory Activities website as well as 

included at all workshops and in all public communications. ARB staff responsibly 

responds to all calls and emails from stakeholders concerning implementation and 

compliance with the CHE Regulation. 

F. Low-Use Extension 

F1. Comment: A 200 hour low-use exemption equates to 25 working shifts per year, 

per machine. We request that a higher hour threshold of 400 hours allowing a 

day a week of use. This is a very desirable amendment for our industry. Our 

members also request to keep their older equipment as emergency “back-up” 
28

spares even though their CARB declarations may show a piece of equipment 

slated for retirement or to be repowered. (PMA, PMSA, SSI)

Agency Response: The low-use compliance extension is a short-term, two-year 

extension providing compliance relief for a limited number of pieces of equipment to be 

used for operations or for emergency back-up. This is not an exemption. Once the two 

year extension has expired, this equipment must be brought into compliance either by 

retrofit with highest available VDECS, repower or replacement, or retirement. ARB staff 

has set annual operating hour threshold at 200 hours per year based on the estimated 

emissions impact. An increase in the number of annual operating hours allowed for 

low-use equipment will increase the adverse impacts of this amendment. Finally, to the 

extent that the commenters are requesting that equipment that is to be retired or 

repowered should be allowed to be used as “emergency back-up” equipment, the 

requested one shift per week seems high if the equipment is truly to be used only as 

emergency back-up. 

F2. Comment: We are not sure how CARB determined the baseline that 200 hours 

of operation qualifies “low-use equipment”. We try to look at this from a practical 

stand point and would recommend 400 hours. We routinely change oil in the 

equipment every 500 hours, so a standard of 400 hours would not even equal to 

one oil change per year. In comparison, actively used CHE receive 

approximately six oil changes per year or more. (SSA)

Agency Response: Please see the response to comment F1 where we identify 

emission impacts as the key factor in establishing the 200 hour limit.

 

F3. Comment: We don’t support increasing the number of hours that are being 

proposed from the 200 hours a piece of equipment may operate annually to be 

eligible for a low-use compliance extension to anything higher, because we 

believe that we still have exposure of these diesel emissions – exposure of these 

equipment in the rail yard complex or the port complex and the surrounding 

communities. And we do have concern with increasing hours in that definition. 

AQMD staff believes that any such low-use compliance option must be limited to 

the degree feasible, carefully monitored, and phase-out these older equipment at 

the earliest practicable date. (SCAQMD, SCAQMD1)

Agency Response: ARB staff has maintained all the originally proposed limits on the 

low-use extension, including maintaining a 200 hour per year use limit, the limited twoyear length of the extension, and the ability to limit the number of pieces of equipment 

granted a low-use extension per facility. The Executive Officer can elect to limit the 

number of engines granted a low-use extension at a facility to two engines in a single 

fleet or two percent of a fleet after considering the impact on public health based on an 

evaluation of number of equipment granted a low-use extension, hours of operation of 

the equipment, estimated engine emissions levels, and proximity of the equipment to 

off-site residences. If the hours of use for equipment granted a low-use extension 
29

exceed the maximum allowable 200 hours per year, the equipment must be brought into 

compliance.

 

F4. Comment: We strongly support strict limitations around the low-use equipment

compliance extension. (ALA, CCA, CCA1, EO/CCP, EYCEJ, EYCEJ1, MAHA,

NRDC, NRDC1)

Agency Response: See response to Comment F3. 

F5. Comment: There should be no limit to the number of low-use compliance 

extensions. The low-use compliance extension allows facilities such as ours to 

a) maintain a back-up fleet and b) operate specialty equipment that is used so 

infrequently that SSI cannot justify the significant cost associated with 

replacing/retrofitting the equipment. While this equipment is critical to our 

continued operation, its minimal use should lead to its exclusion from the CHE 

rule. (SSI)

Agency Response: See responses to Comments F1, F2, and F3. 

 

G. Equipment Manufacturer Delays 

G1. Comment: It is important to preserve the availability of rental equipment as 

needed until such time as the manufacturers issue the updated Tier compliant 

engines. In cases where the equipment is not available, a longer extension of a

year, or until such time as new equipment becomes available, or until the

equipment becomes obsolete, whichever comes first. We believe the six months

time limit does not allow for any cost benefits associated with capital leases 

and/or other rental agreements. (APL, PMA)

In order to make this amendment truly effective and beneficial, we would 

respectfully suggest that the rental of needed equipment should be allowed until 

equipment meeting current standards is available, and not be limited to an 

arbitrary six-month period. (PMSA)

Agency Response: The regulation already makes an allowance for rental of 

equipment one tier lower than current standards for longer than six months when new 

equipment delivery delays are longer than six months. Section 2479(e)(B)5.d. states, 

“Equipment may be leased or rented for up to a six month period or until purchased 

equipment are available, whichever is longer.” This provision is not intended as a 

mechanism to provide cost benefits (savings) associated with long term capital lease 

agreements. 

G2. Comment: Industry also recommends that if rental companies want to do 

business in California, they must provide equipment that is compliant with 

California laws. The requirement that rental or lease equipment can only be one 

Tier lower than the required engine standard does not consider that the majority 
30

of rental equipment would be regulated under the In-Use Off-Road Regulation. 

Rental equipment that is compliant with the in-use off-road equipment regulation 

should be sufficient to meet the requirements of the CHE Regulation. Rental 

companies are required to meet “fleet average requirements” for both NOx and 

PM based on their fleet size. Therefore an older, lower Tier may be compliant for 

the rental company however we would not be able to utilize this equipment under 

this amendment. For short-term rental purposes, rental, equipment that is 

compliant with the rental company should also be considered compliant for the 

renting company. It is unfair that the ports and rail yards should be held to a 

higher compliance standard than for the off-road sectors. If the equipment is 

compliant under one regulation, it should be compliant for other regulations for 

the same type of equipment. This could limit our ability to conduct business if the 

correct tier engine is not available for rental. (MSC, PMA, YT)

Agency Response: The CHE Regulation requires a faster transition to clean 

equipment than the In-Use Off-Road Mobile Equipment Regulation due to the 

environmental justice issue of reducing the health risk for the communities surrounding 

California’s ports and intermodal rail yards. Please see the response to comment E1 

regarding the health risk issue and the need for accelerated CHE requirements. 

 

Additionally, the CHE Regulation requirements apply to entities renting or leasing 

equipment to a port or an intermodal rail yard. Consequently, if a rental company 

supplies a non-compliant piece of equipment to a port or intermodal rail yard, 

enforcement action against the rental company may ensue. 

G3. Comment: Typically, however certain assets are rarely rented in our business 

(i.e. an RTG or top pick); they are owned, and therefore we cannot see why

owned equipment does not qualify for a six month extension, assuming it too 

meets the same proposed criteria as rental equipment, i.e. the equipment could 

only be one tier lower than the required engine standard. This suggestion seems 

logical, especially since once Tier 4 engines are manufactured, there would be a 

lag between supply and demand. (SSA) 

Agency Response: The commenter seems to be requesting that it be allowed a sixmonth compliance extension for equipment that is only one tier lower than is required 

under the CHE Regulation. This request is not consistent with the point of the 

extension, which as originally adopted in 2005 provides, in subsection (f)4, for a 

compliance extension for in-use equipment in situations where there are manufacturer 

delays delivering new equipment. This extension requires that the new equipment was 

ordered at least six months prior to the in-use engine compliance date and that the 

owner/operator maintain proof of purchase, such as a purchase order. This section was 

intended to have limited applicability and would not involve significant additional 

emissions in contrast to the general proposal put forth by the commenter.
31

H. Opacity Monitoring Program

H1. Comment: With the exception of the ARB “Heavy-Duty Diesel Vehicle Smoke 

Inspection Program”, this specific opacity standard is not specified in other ARB 

diesel regulations including but not limited to, the ARB Off-Road Diesel 

Regulation, the ARB On-Road Diesel Regulation, the Stationary Diesel Engine 

Regulation, the Portable Diesel Engine Air Toxic Control Measure, or the 

Portable Equipment Registration Program (PERP). Why is this regulation 

different than all your other regulations? Why, on this regulation, do we have to 

do this intrusive and expensive opacity testing? (DoD, DoD1)

Agency Response: The CHE opacity monitoring program is similar to ARB’s “HeavyDuty Diesel Vehicle Smoke Inspection Program” (Periodic Smoke Inspection Program) 

for on-road trucks and the California smog check program for passenger vehicles. 

These programs are in place to verify that in-use engines continue to operate as 

originally designed and to require the necessary maintenance to support that. This is 

particularly important for the CHE fleet as the diesel emissions from this equipment 

impact the surrounding communities. See the response to Comment E1 regarding the 

diesel particulate risk assessment that showed CHE equipment emissions being one of 

the primary contributors to significant off-site cancer risks of greater than 100 in a million

surrounding the Ports of Los Angeles and Long Beach. The high volume of diesel 

equipment at ports and intermodal rail yards contribute to significant elevated cancer

risk levels in the surrounding communities and can affect areas even at considerable

distances. Consequently the CHE Regulation needs to be more stringent than other 

regulations dealing with other diesel equipment. 

H2. Comment: We are not aware of any existing opacity issue associated with 

running of CHE that prompted CARB staff to propose this new opacity 

requirement or a problem with a lack of adequate maintenance. Further, we are 

not aware of any other off-road category of vehicles that are subject to a similar 

requirement. (PMSA)

Agency Response: As discussed in Chapter II of the ISOR, ARB staff conducted a 

CHE technology meeting in May, 2011. During the course of that meeting, one of the 

issues that emerged involved the on-going maintenance of CHE and its impacts on the 

functionality of VDECS. VDECS manufacturers believe that owners/operators need 

more education on the VDECS operational and maintenance requirements and that this 

would help the owners/operators operate the retrofitted equipment more effectively. 

While diesel engines without aftertreatment controls will normally continue to operate 

without required maintenance, engines that have been retrofitted will more likely incur 

high incidences of operational problems if they are not properly maintained. 

A predominant indicator of whether an engine is properly maintained and performing 

efficiently enough to allow a VDECS to perform well is engine exhaust opacity. As 

documented in Chapter II of the ISOR, one important observation of the data from an

ARB opacity study is that in-use engine-out PM emissions from certified diesel engines 
32

can be significantly higher than the certification levels if the engine manufacturer’s 

recommended engine maintenance schedules are not followed. These in-use PM 

levels are significantly higher than the expected engine deterioration levels. However, 

PM emission levels and measured opacity levels in well-maintained fleets correlate 

much better with their certification levels. Based on the results of the ARB study, ARB 

staff believes the opacity monitoring program is a significant tool in the effort to ensure 

that CHE is properly maintained and operated.

Regarding other off-road regulations not requiring in-use opacity testing, see the 

response to Comment H1. Although owners/operators of in-use off-road equipment not 

subject to the CHE Regulation are not required to conduct opacity monitoring on an 

annual basis, if those equipment owners/operators chose to comply with the In-Use OffRoad Regulation by installing VDECS, they are required to do an opacity test on the 

equipment to ensure that it is compatible with the VDECS. 

H3. Comment: This is another proposal with disparate impact where the marine 

terminals and rail yards are being held to a higher standard than other diesel 

regulations for similar equipment. We don’t see this being proposed in other 

CARB regulations. The ARB’s In-Use Off-Road Equipment Regulation only 

requires opacity testing as part of the DECS selection process. The On-Road 

Truck and Bus Regulation only requires opacity testing downstream of a DPF, 

not ahead of the filter. If equipment was not operated at a port terminal or 

intermodal rail yard it would be subject to the In-Use Off-Road Equipment 

Regulation. Again there is a disparate impact to our industry as it is being held to 

a higher regulatory standard than similar engines falling under different 

regulations. Why are the ports and rail yards singled out for the added burden? 

All off-road equipment in the L.A. Basin should be under the same regulation. 

(MSC, YT, YT2)

Agency Response: The CHE Regulation has stricter requirements than the In-Use 

Off-Road Equipment Regulation because it deals with a captive fleet that directly 

contributes to the significant health risk for surrounding communities, as discussed in 

the response to Comments E1 and H1. As indicated in the response to Comment H2, 

the purpose of the CHE Regulation’s requirement to opacity monitor the engine-out 

exhaust, upstream of a VDECS, is to detect engine issues before they contribute to a 

DPF failure. As the Manufacturers of Emission Control Association (MECA) testified at 

the Board hearing, that DPF failures are most often associated with improper engine 

maintenance and operation rather than DPF functionality. Regarding the comment on 

the opacity requirement for on-road trucks (the commenter refers to the On-Road Truck 

and Bus Regulation incorrectly, reference should be to the Periodic Smoke Inspection 

Program) only requiring opacity testing downstream of a DPF, not ahead of the filter, an 

important difference between this program and the one for CHE is that the on-road 

program includes roadside inspections. In contrast, the intent of the CHE opacity 

monitoring upstream of a VDECS is to detect engine operation problems that could 

cause VDECS failure. Opacity monitoring downstream of a VDECS will not indicate 

engine issues until the DPF has failed due to excessive particulate load. 
33

H4. Comment: For facilities with an established and proven equipment maintenance 

program, there are no significant benefits associated with implementation of an 

opacity monitoring program. Opacity measurement is not part of our routine 

business, so this task will need to be outsourced. This will result in additional 

costs, contractor coordination, and administrative requirements. There will be 

detrimental effects on operational costs and equipment downtime. Terminal 

operators maintain their equipment in an effort to maximize productivity. As 

such, an opacity monitoring program increases operating costs and does not 

result in significant improvements. (BNSF)

Agency Response: MECA provided testimony that maintenance is an important factor 

for the durability and long-term performance of a diesel particulate filter (DPF) as well as 

the engine and the CHE. (The DPF could be either an OEM DPF that is part of the 

certified engine configuration, or a VDECS which is an after-market retrofitted DPF.) 

Maintenance is critical because the presence of smoke in the exhaust can no longer be 

used as an indication of engine operation problems. High smoke opacity could be a 

sign of excessive oil consumption or a bad fuel injector, both of which result in high 

engine out PM that may result in plugging the DPF. If a DPF is installed in the exhaust,

(either as a retrofitted VDECS or as part of the OEM engine configuration) it will capture 

the PM and mask any signs of high smoke. MECA has testified that an opacity test is 

an inexpensive, simple measurement that needs to be an integral part of any proactive 

maintenance program. MECA estimates that 90 percent of the time, an engine 

maintenance problem will precede a DPF problem. Performing annual opacity tests is a 

way for CHE owners/operators to actively monitor the condition of their engines and 

perform the necessary maintenance to keep their equipment functioning at the engine 

manufacturers’ recommended standards. This will reduce emissions from all CHE, 

improve performance, and result in extending the life of compliant equipment. Opacity 

testing of the engine and discovering engine problems early will help preserve the 

integrity and useful life of the DPF. Opacity testing at the time that the VDECS DPF is 

being cleaned, should avoid any significant downtime for that equipment. (The CHE 

opacity monitoring program does not require that engines with OEM DPFs be opacity 

tested upstream of the DPF because that would require the engine to be operated in a 

noncertified configuration.) 

ARB staff has conducted hundreds of road-side opacity tests on in-use heavy-duty 

diesel vehicles. That experience has proven that opacity tests can be done quickly and 

inexpensively. As documented in Chapter V of the ISOR, if a facility chooses to 

outsource the opacity monitoring, consultant charges range from $30 to $60 per engine

per test. 

H5. Comment: An opacity monitoring program is unnecessary and increases costs. 

Issues associated with VDECS are the result of VDECS not properly matched to 

the CHE engine duty cycle or not being able to tolerate our operating conditions 

and engine duty cycles, not the operation or maintenance of the equipment. An 

opacity monitoring program will significantly increase the cost burden of the CHE 
34

regulation and will have no impact on the maintenance and operation of port 

terminal and intermodal rail yard owners/operators because the cost and 

complexity of the equipment dictates that it be properly maintained and operated. 

It is not in the best interest of our company to have high opacity engine gasses 

upstream of the VDECS because the VDECS would suffer a greater load and a 

shorter run time would surely result. Poor maintenance would also result in 

higher fuel costs. (APL, SSI, YT)

Our Industry is well aware that poor maintenance of both the engine and the 

exhaust system are prime contributor to opacity, so we must point out that we 

already have a high appreciation for the regular maintenance of this equipment 

as it is critical for them to perform the rigorous tasks required to move cargo on a 

marine terminal. Terminals simply cannot afford to have substandard equipment, 

as it adds costs in lost productivity and increases fuel consumption. (PMSA) 

Agency Response: Please see the responses to Comments H2, H3, and H4 regarding 

the cause of most VDECS problems, the use of opacity monitoring as part of a proactive 

maintenance system, and the cost of opacity monitoring. Please see response to 

Comment C1 regarding the concern that the VDECS are not able to tolerate their 

operating conditions. 

H6. Comment: An opacity monitoring program is not beneficial to port terminal and 

intermodal rail yard owner/operators due to increased/additional maintenance 

and repair costs and increased down time for equipment. Our VDECS problems 

are due to the VDECS being intolerant of our industry duty cycles, not opacity 

levels. The proposed opacity program adds an additional level of nuisance, both 

logistically and cost-wise. The opacity testing and recordkeeping will be labor 

intensive and costly. PMA would recommend that back pressure testing be 

considered as an equivalent to opacity testing. Back pressure testing is a much 

more efficient way for the industry to achieve CARB’s objective. Back pressure 

testing is already widely utilized in our industry and the testing can be easily 

documented. This testing procedure would be more practical as well as more 

cost effective for the industry. (ITS, PMA)

Agency Response: Please see the responses to Comments C1, H2, H3, and H4 

regarding VDECS intolerance to industry duty cycles, the value of opacity monitoring in 

a proactive engine maintenance program, the testing costs, and anticipated equipment 

down time.

Regarding the use of back-pressure monitoring in lieu of opacity monitoring, MECA has 

testified that, while opacity monitoring is a direct indicator of the health of an engine, 

back-pressure monitor (BPM) data is a direct indicator of the health of a DPF. BPM 

data is indirectly related to engine maintenance. For example, high backpressure may 

be a result of high engine out PM, or incomplete filter cleaning. Engine exhaust opacity 

testing is a way to evaluate the cause of high backpressure readings. BPM is not an 

adequate substitute for opacity monitoring. 
35

H7. Comment: It appears the VDECS manufacturers are attempting to get CARB to 

regulate, i.e., shift the burden off the manufacturer to provide a product that is 

designed to work efficiently and effectively in the marine environment by making 

the terminals responsible for annual testing. (PMA, YT)

It (required opacity monitoring) also appears to be another situation where the

deficiencies of the OEMs, and the after-market VDECS providers, would be 

unfairly passed onto the end-users of the equipment. If the OEMs and VDECS 

provided are not performing as warrantied then those providers should be held 

responsible through the certification process. (PMSA)

Agency Response: Annual testing does not shift the burden off the VDECS

manufacturers to produce a product that works efficiently and effectively in the marine 

environment. Annual testing helps remove the primary cause of VDECS failure, lack of 

required engine maintenance. If VDECS manufacturers do not provide an efficient and 

effective product, this will become more evident when engine maintenance can no 

longer be pointed to as a cause for VDECS failure. Both OEM and VDECS 

manufacturers are required to warranty their products against premature failure. The 

Verification Procedure specifies a minimum warranty period for products verified by 

ARB. 

H8. Comment: We would suggest that language be added that provides for an 

equivalent standard. In opacity testing an individual can affect the outcome of 

the test by how fast and how hard the throttle is used. Additionally, if a halfmillion dollar machine does not pass the opacity test, an operator can stick the 

sensor in another machine and get paperwork to show a passing test for the 

expensive equipment. Additionally, it has been said that if we do the testing after 

the filter, it is a waste of time. But that is apparently what we can do with the 

yard tractors. We would suggest that back pressure testing be considered as an 

equivalent to opacity testing. In our opinion, back pressure testing is a better 

way to achieve ARB’s objective where computer-assisted technology can provide 

a more accurate reading and eliminate variables. Back pressure testing is 

already widespread in the industry, can be easily documented, and much more 

cost effective. We do the back pressure testing all the time because we are the 

ones that pay for that muffler that gets plugged up. (SSA, SSA1)

Agency Response: Using the Society of Automotive Engineers (SAE) J1667

Recommended Practice, Snap Acceleration Smoke Test Procedure for Heavy-Duty 

Powered Vehicles will help alleviate operator to operator variability. The SAE J1667 

Snap Acceleration Smoke Test Procedure has been the industry standard for opacity 

testing since 1996 and is the method required by the CHE Regulation. The tests will be 

conducted by personnel trained to properly administer the SAE J1667 Snap 

Acceleration Smoke Test. 
36

SSA suggests that if owners/operators have equipment that they wish to continue to 

operate that does not pass the opacity test, they will fraudulently obtain passing results 

for the equipment. This is in direct contradiction to claims by industry that they do not 

need to be subject to an opacity monitoring program because they have highly effective 

equipment maintenance programs. Obtaining fraudulent results for opacity monitoring 

will be in direct violation of the CHE Regulation and subject to enforcement action. 

Please see response to Comment H4 regarding the value of opacity testing upstream of 

the DPF in order to monitor engine operation. As mentioned in the response to 

Comment H3, opacity monitoring upstream of a VDECS is being required in order to 

detect engine operation problems that could cause VDECS failure. Opacity monitoring 

downstream of a VDECS will not indicate engine issues until the DPF has failed due to 

excessive particulate load. 

The opacity monitoring on yard tractors, and any other equipment with an engine that 

has been certified with an original equipment manufacturers (OEM) DPF, is to be 

conducted at the exhaust of the certified engine. This is downstream of the OEM DPF. 

The engine is not to be operated in a non-certified configuration, e.g., with the OEM 

DPF removed. While this will only provide information on the health of the DPF, these 

are the constraints necessary for maintaining an engine in its original certified 

configuration. Engines that have been retrofitted with a VDECS do not have this 

constraint and therefore the opacity test can be conducted at the engine-out exhaust, 

upstream of the VDECS, which will provide information on the health of the engine. 

Please see response to Comment H6 regarding the value of opacity monitoring as 

compared to back-pressure testing. 

The opacity monitoring requirements do allow for an alternative method of compliance 

to be used, if the Executive Officer determines that opacity monitoring is not feasible 

due to the engine/equipment configuration.

H9. Comment: Port terminal and intermodal rail yard owners/operators are 

responsible for meeting emissions standards set by ARB, regardless of the 

concentrations of NOx and PM emitted by an engine. If the exhaust from a

CARB verified engine with a CARB verified DPF is not up to those standards, the 

equipment owner is responsible for making the corrections. The DPF 

manufacturers’ warranties state that the equipment owners are responsible for

maintaining the engines to specific emission standards. Proper maintenance of 

equipment is critical for a terminal operator as poorly maintained engines 

increase costs for the operator in fuel, performance and downtime. DPF failures 

resulting from engine maintenance or performance issues are the responsibility 

of the equipment operators, per the warranty. The additional cost to replace filter 

cartridges is further rationale for properly maintained equipment. After one or 

two expensive filter cartridge replacements, the equipment owner will realize it is 

more cost effective to correctly maintain their equipment. 
37

We see no benefit or justification for requiring additional opacity testing upstream 

of the DPF. The increased down-time and cost will be detrimental to our 

operators and productivity with no evident emissions benefit. (MSC, YT)

Agency Response: The CHE Regulation sets standards for CHE in terms of the 

certification levels of the engines allowed to operate at California’s ports and intermodal 

rail yards. However, prior to the addition of the opacity monitoring requirement, there 

were no requirements that controlled the actual in-use emissions of the engines. Nor do 

VDECS manufacturers’ warranties state that equipment owners must maintain their 

engines to specific emission standards, although the Verification Procedure is being 

updated to require that maximum engine-out opacity levels be specified for the VDECS. 

Consequently we do not understand the commenters’ statements regarding equipment 

owners being required to correct exhaust emissions from a CARB verified engine or 

DPF that does not meet the standards. 

Additionally, one of the commenters states that equipment owners will realize that it is 

more cost effective to maintain their engines after having to replace expensive filter 

cartridges. This suggests the possibility that DPF failures due to poor engine 

maintenance practices do occur and supports the need for annual opacity monitoring.

The emission levels used in modeling of CHE sources assume that the engines are 

maintained in good repair. However, as discussed in the ISOR, Chapter II, data from an 

ARB study indicates that while measured engine-out opacity does not appear to 

correlate with engine mileage, age, or certification level, it does correlate with measured 

PM emission levels. This would indicate that variations in maintenance practices impact 

the emission levels of diesel engines with the consequence that poorly maintained 

engines will have emissions significantly higher than an engine’s certification levels and 

higher than one would expect from normal engine deterioration levels. 

In contrast, PM emission levels and measured opacity levels in well-maintained fleets 

correlate much better with their certification levels. So, while specific emission 

reductions cannot be specifically estimated, the success of ARB’s on-road diesel 

Periodic Smoke Inspection Program and the Bureau of Automotive Repair’s Smog 

Check Program to flag maintenance issues and get gross polluters off the road supports 

the initiation of this program for a captive fleet whose emissions impact the health risk of 

the surrounding communities. 

H10. Comment: Annual opacity testing would place a huge burden on terminal 

operators to contract for and to provide time out-of-service for the equipment 

subject to the testing; it would yield few practical results. Since CARB already 

requires extensive annual reporting on the subject cargo handling equipment this 

appears to be a requirement arbitrarily imposed with little explanation on the 

expected air quality benefits that would result. ... Only if it can be demonstrated 

that the owner or operator of the cargo handling equipment has failed to properly 

maintain the equipment per the OEM or VDECS provider specification should

they have the responsibility to provide this additional opacity testing to ensure 
38

that the equipment is performing per the original certification specifications.

(PMSA)

Agency Response: Please see responses to Comments H2, H4 and H8 regarding the 

benefits and cost of the opacity monitoring program. Please see response to Comment 

H9 regarding the emissions benefits of the opacity monitoring program. 

H11. Comment: The cost of compliance with the opacity monitoring is simply not cost 

effective. The costs associated with purchasing certified opacity measurement 

equipment, training of opacity measurement staff, time for taking staff and 

equipment off-duty, logistics, scheduling conflicts, additional recordkeeping, et 

cetera, does not appear to be a prudent expenditure of funds. Inclusion of this 

requirement poses a significant impact on DoD installations with respect to the 

cost of compliance as well as potential enforcement actions. In our opinion, the 

proposed CHE Regulation without the inclusion of this opacity procedure

provides verbiage for ensuring compliance with the regulation and the emissions 

reduction goals established by ARB. We estimate it will cost our Port Hueneme 

facility an additional $25,000 a year to implement an opacity monitoring program,

beyond what has already been spent. It’s all a pot of money that can be used for 

the larger goal of cleaner air and a cleaner environment. (DoD, DoD1)

Agency Response: Please see the responses to Comments H2, H4, H8, and H9 

regarding the value of, costs for, and emissions benefits and need for the CHE opacity 

monitoring program. The existing CHE regulation does not verify that diesel engines on 

CHE are maintained to operate as originally designed both to minimize engine-out 

emissions and to promote VDECS health. Annual opacity monitoring will improve the 

performance potential of VDECS installed on CHE by reducing engine performance 

issues as a mechanism for VDECS failure. 

Recordkeeping for the opacity monitoring should not be burdensome as opacity 

monitoring instruments are available that create a printed copy of the results of the 

opacity test. There are no requirements to report the results of annual opacity 

monitoring directly to ARB. These receipts should be maintained as part of the

equipment’s regular maintenance records and available for ARB enforcement staff to 

review upon request. ARB is not requiring any recordkeeping beyond keeping the 

opacity test results receipts with the tested equipment’s maintenance records. 

H12. Comment: The proposed Rule includes extensive recordkeeping requirements 

associated with the opacity testing provision, which are in addition to the 

recordkeeping requirements that are already required by the Regulation. The 

collection and maintenance of these records is burdensome and adds to the 

overall costs associated with the opacity testing program for which no emissions 

benefits have been quantified. (UP)

Agency Response: See response to Comment H11 regarding the recordkeeping 

requirements for the opacity monitoring program. Staff does not believe these 
39

requirements to be burdensome. See the response to Comment H9 regarding the 

emissions benefits of the opacity monitoring program. 

 

H13. Comment: Due to the benefits, we request that BNSF be allowed to continue 

utilization of it’s our lower cost, more efficient, and proven CHE maintenance 

program in lieu of an opacity monitoring program. (BNSF)

Agency Response: BNSF may continue to use its CHE maintenance program with the 

required opacity monitoring as an additional element. Please see the response to 

Comments H2, H4 and H8 regarding the benefits and costs of the opacity monitoring 

program. Please see the response to Comment H8 regarding the provision to use an 

alternate method of compliance. 

H14. Comment: Current annual VDECS maintenance costs include approximately 

five cleanings per year at $450 per cleaning, with labor and other costs. That 

equals $2,800 per year per piece of equipment. And when you have 64 of them, 

it is $179,000 per year. Now CARB wants to add opacity testing. Opacity testing 

equipment is $5,600 to $10,000. Labor costs to complete the tests is 

approximately three hours. The cost to complete the testing is going to be 

approximately $330 per unit. If I look at all my equipment, it is over $60,000 a 

year. (YT, YT2)

Agency Response: Please see the response to Comment H4 regarding the cost to 

opacity monitor a piece of equipment. The three hours per unit estimated by the 

commenter is much more than will be required. As stated in Chapter V of the ISOR, the 

opacity monitoring can be out-sourced at $30 to $60 per piece of equipment. This does 

not support a three hour test time requirement. The costs estimated in Chapter V of the 

ISOR allowed for 30 minutes to conduct the test, which is more consistent with the outsourcing costs, and with our experience under the Periodic Inspection Program. 

Additionally, if the commenter is performing VDECS maintenance five times per year, 

this provides ample opportunity to opacity monitor the equipment on an annual basis

while the VDECS is removed for cleaning. 

 

H15. Comment: Under the proposed opacity monitoring testing procedure, the DPF 

must be removed, the measurement done, the DPF reinstalled, and measured 

again. The testing and recordkeeping will be labor intensive and costly, more 

than $550 per unit for testing alone, in addition to the negative impact resulting 

from additional down time of equipment. This would place a significant financial 

burden on equipment operators who are already bearing higher costs from the 

manufacturer for “compliant ‘equipment and VDECS. (PMA, YT)

Agency Response: ARB estimates (as documented in Appendix C of the ISOR, pages 

C-9 through C-11) do not support the excessive costs reported; see the responses to 

Comments H4 and H14 regarding opacity monitoring costs and labor time required for 

testing. The detailed listing of the costs provided by YT indicates that they mistakenly 

believe that they need to opacity test each retrofitted piece of equipment twice, once 
40

without the VDECS, and then again once the VDECS is reinstalled after cleaning. This 

is not required. Sections 2479(e)(2) and 2479(e)(3) do not include a requirement that a 

port terminal or intermodal rail yard owner/operator conduct two opacity monitoring 

tests, one with the VDECS off and one with the VDECS reconnected, to test the opacity 

of a CHE engine. One test, upstream of the VDECS, is needed to assess the opacity of 

the CHE engine. They are also including the labor time for removing and reinstalling 

the VDECS, which would need to occur regardless of the opacity testing, due to 

required VDECS cleaning.

H16. Comment: Since this is a new program, we do not have historic data to 

accurately estimate the annual testing cost, but believe that costs could be 

substantial due to equipment downtime and labor. However, the ISOR fails to 

estimate the emission reductions that will be achieved for the opacity monitoring 

compliance cost. The ISOR simply states that the opacity testing requirement 

will keep equipment operating “more cleanly” and “...could result in a reduction in 

soot levels from CHE.” Furthermore, the ISOR states that “... these proposed 

amendment are not anticipated to result in any significant increase or decrease in 

GHG’s. However there is potentially a small decrease in carbon black 

emissions.” 

The collection and maintenance of these records is burdensome and adds to the 

overall costs associated with the opacity testing program for which no emission 

benefits have been quantified. (UP)

Agency Response: See the response to comments H4, H9, and H11 regarding the 

costs and qualitative emissions benefits of an opacity monitoring program, including the 

testing and record keeping costs. As mentioned in the response to Comment H9, while 

emission reductions cannot be specifically estimated, the success of ARB’s on-road 

diesel Periodic Smoke Inspection Program and the Bureau of Automotive Repair’s 

Smog Check Program to flag maintenance issues and get gross polluters off the road 

supports the initiation of this program for a captive fleet whose emissions impact the 

health risk of the surrounding communities. 

H17. Comment: Are there other ARB mobile source-related regulations that will be 

requiring an opacity monitoring program? If so, I would urge you to consider the 

economics - if this is a precedent for all those other regulations with the size of 

the off-road fleet and some of the other fleets, you’re looking at some major 

expenditures of money. If opacity monitoring is required for all in-use off-road 

equipment, the Department of Defense estimates costs of up to $100 million over 

the next 10 years. (DoD1)

Agency Response: Currently, the In-Use Off-Road Equipment Regulation only 

requires the use of an opacity test when matching a VDECS to a piece of equipment. 

ARB staff does not have any plans to expand opacity monitoring requirements for in-use 

off-road equipment at this time. Beyond the testing conducted under the HDVIP, we are 
41

not aware that other ARB in-use mobile source-related regulations will be requiring an 

opacity monitoring program. 

H18. Comment: In the VDECS equipped units, the VDECS replaces the traditional 

exhaust system. Once the VDECS has been removed, the unit no longer has an 

exhaust manifold where the testing probe can be inserted. A “test manifold” must 

be installed on each VDECS equipped unit, to complete testing. ... Custom 

equipment specific test manifolds would be needed for each VDECS-equipped 

unit. The annual opacity monitoring program requires the fabrication of 

equipment-specific “test manifolds” for all VDECS equipped units. The 

fabrication of these “test manifolds” will increase capital costs of the test program 

and the annual costs would also increase due to the time and labor to install and 

remove the manifolds. (UP, YT)

Agency Response: There are several opacity monitoring devices on the market that 

attach directly to the exhaust flange that the VDECS bolt to and would not require the 

fabrication of equipment-specific manifolds. VDECS representatives use the opacity 

test to evaluate engines that have experienced VDECS issues. 

H19. Comment: How does the opacity testing translate to diesel particulate standards 

(gram per brake horsepower-hour) as approved for each engine? There are 

many questions with this proposed amendment and we recommend further study 

and discussions with equipment operators to develop a beneficial, reasonable, 

and consistent downstream opacity testing program. (YT)

Agency Response: ARB’s study on the correlation of measured engine-out exhaust 

opacity to measured PM emissions has produced a correlation of measured PM 

emission levels with measured opacity. This was presented in Figure II-1 in Chapter II 

of the ISOR. Table II-1 of the ISOR provided maximum opacity limits for different 

engine certification levels. Please see the response to Comment H4 and H8 regarding 

the benefits of opacity monitoring the engine-out emissions rather than the emissions 

downstream of the DPF. Staff believes that the required opacity monitoring program is 

a beneficial, reasonable, and consistent program. 

H20. Comment: Conducting opacity monitoring tests upstream of a DPF is costly and 

time consuming and has a high potential to reduce productivity due to downtime. 

(MSC, MSC1)

Agency Response: See the responses to Comments H4 and H8 regarding the value 

of opacity monitoring the exhaust upstream of the DPF, the associated costs, and 

equipment downtime. 

H21. Comment: Regarding requiring the removal of the VDECS to complete opacity 

tests, since retrofitted CHE does not operate without a VDECS, it appears 

counterproductive to test its opacity level without the control in place, since it 
42

does not test for its normal operating conditions (which under VDECS control 

would reduce opacity due to the PM reduction). (DoD)

Agency Response: As discussed in the response to Comment H8, the purpose of 

measuring the opacity of the engine-out exhaust stream rather than the VDECS filtered 

exhaust stream, is to obtain information about the health of the engine. Specifically, the 

test is to determine if the engine is operating as originally designed or if there is a 

maintenance or repair issue that is being masked because the VDECS is cleaning the 

exhaust gases. Measuring the opacity of the exhaust stream from the VDECS would 

provide information about the VDECS health, if the filter is still working, and not the 

engine health. 

H22. Comment: There is other less inconclusive option for opacity and we urge you 

to consider if opacity is the goal to be consistent with the other regulations. 

(DoD1)

Agency Response: ARB staff has evaluated other options, including backpressure 

monitoring programs, and determined that, based on information in the response to

Comment H6, an opacity monitoring program is the most effective method of 

determining an engine’s operational health and ensuring that port terminal and 

intermodal rail yard owners/operators’ equipment maintenance programs are 

addressing engine operation issues. We do not believe that this is an inconclusive 

option because, as discussed in response to Comment H9, ARB’s experience with the 

Periodic Smoke Inspection Program fully supports the use and benefits of such testing. 

H23. Comment: Is the annual opacity required regardless of hours of use? What 

about the proposed “low-use” extension equipment? The DPFs on this low-use 

equipment will not need to have the filter cleaned for many years. (MSC)

Agency Response: There is not an exemption from the opacity testing requirement for 

low-use equipment. Low-use equipment is likely to be older, and it is important that this 

equipment be kept in good operating condition to minimize air quality impacts. 

However, since a low-use compliance extension is granted in lieu of bringing that 

equipment into compliance, it is not likely that a low-use piece of equipment will have a 

VDECS installed and thus testing will not involve removal of the VDECS. However, if a 

low-use piece of equipment does have a VDECS installed, the regulation provides that 

an owner/operator may request an alternative method of compliance if it can be 

demonstrated that complying with the opacity monitoring requirements is not feasible 

due to the engine/equipment configuration. 

H24. Comment: Newer engines (4 years and newer) should be exempt from the

opacity monitoring program, as they are in the Truck and Bus Regulation. (MSC, 

YT)
43

Agency Response: The 15-day modifications include regulatory language exempting 

engines less than four years old from the opacity monitoring program. For example, a 

2012 model engine would not be included in an opacity monitoring program until 2016.

H25 Comment: Controlled engines such as Tier 3 and Tier 4 engines already have 

low opacity limit requirements as part of the United States Environmental 

Protection Agency and ARB diesel engine certification process. Since all engine 

manufacturers are required to certify these engines for opacity limits, it appears 

inefficient to require more opacity testing for these Tier 3 and 4 Engines (sic) 

which already have very low PM emissions, or are equipped with manufacturer 

VDECS. (DoD)

Agency Response: As stated in the response to Comment H24, newer engines (less 

than four years old) are exempted from the opacity monitoring requirements. However, 

while these engines are designed for low opacity, maintaining these low levels requires

proper engine maintenance. Opacity testing of these Tier 3 and Tier 4 engines after 

they have been in use for over four years will help flag when these engines are no 

longer operating at designed opacity levels and require maintenance to return them to 

as-designed operation. 

H26 Comment: What are the parameters for this opacity testing? Is there annual 

reporting required for this proposed opacity testing? (MSC)

Agency Response: The parameters for the opacity testing are defined by the test 

standard cited in the regulatory language, SAE J 1667. See response to Comment H11 

regarding the recordkeeping requirement for the opacity monitoring program. As 

discussed in the response to Comment H11, the opacity monitoring requires only 

recordkeeping. There are no annual reporting requirements for the opacity monitoring. 

H27 Comment: How does opacity reading translate to engine diesel particulate 

standards (grams per brake horsepower-hour) as approved for each engine? 

Are the requirements the same as for the :On-Road Truck & Bus” Regulation –

I.e. a truck that is 1991 or newer can measure up to 40% opacity and a truck 

1990 or older can measure up to 55% opacity? None of these items are 

mentioned in the proposed changes. (MSC)

Agency Response: A correlation of measured opacity to engine diesel particulate 

emissions is provided in Figure II-1 of the ISOR. Table II-1 provides the opacity limits 

for the different engine certification levels. These limits are provided in the amended 

regulatory language, subsections (e)(2)(A)5.e. for yard trucks and (e)(3)(A)3.e. for nonyard truck equipment. These limits are not the same as for the Periodic Smoke 

Inspection Program. 

H28. Comment: We cannot support any opacity testing for equipment with off-road 

engines as there is a huge disparate impact to our off-road equipment versus the 

same equipment covered by the “In-Use Off-Road” regulations. (MSC)
44

Agency Response: See response to Comment H1 regarding the necessity for more 

stringent controls of off-road equipment at ports and intermodal rail yards as compared 

to off-road equipment used at other locations throughout California. 

H30. Comment: The implementation of the proposed opacity testing program will add 

to the already high cost of compliance with this Regulation. (UP)

Agency Response: The costs for the opacity monitoring program were estimated to 

range from $2 million to $3 million dollars for the regulated industry over the 2011 

through 2020 time frame. These costs have not been reduced to include the cost relief 

due to the exemption of engines newer than four years old. These costs were included 

in estimating the cost-effectiveness of the amendment package, as presented in 

Attachment 2 of the 15-day modifications, of $135 to $150 per pound of diesel PM. As 

discussed in this attachment, other diesel measures recently approved by the Board 

have cost-effectiveness values as high as $76 per pound (the recently amended in-use 

off-road equipment regulation). However, if fleets choose not to apply for the two 

additional extension years for equipment without VDECS available, overall costs for the 

amendments would be reduced to $2.4 million, as shown in Table A2-8 of Attachment 2, 

and the cost effectiveness would drop to $36 per pound, or essentially the same as that 

for the original regulation.

H31. Comment: At the very minimum we request that CARB staff do some statistical 

sampling of existing Cargo Handling Equipment to demonstrate the level of the 

opacity issue before moving forward with this amendment. (PMSA)

Agency Response: See the response to Comment H1 regarding the similarity of the 

CHE opacity monitoring program to other vehicle in-use emission level check programs. 

See the response to Comments H2 and H9, regarding the dependence of in-use engine 

emissions levels on maintenance practices and the need for the opacity monitoring 

program to ensure that CHE is properly maintained and not emitting at excessive 

pollutant levels. See response to Comment H4 regarding the need for the opacity 

monitoring program to facilitate the successful use of VDECS with CHE. See the 

response to Comment H14 regarding the anticipated costs to conduct the opacity 

monitoring program. ARB staff believes this program will produce cost-effective 

emission reductions due to improved equipment maintenance and the successful 

implementation of VDECS for these fleets whose emissions are impacting the health of 

surrounding communities. 

I. Rural Small Port Exemption

I1. Comment: The rural small port exemption penalizes other ports and rail yards’ 

operators who have already invested resources in complying with these rules 

while unfairly allowing others to continue polluting our air. (CCA, EYCEJ, 

MAHA, NRDC)
45

Agency Response: The rural small port exemption applies only to ports that have an 

average annual throughput of less than one million tons and is located more than 75

miles from an urban area. The proposed amendments would establish cargo 

throughput and community population triggers levels which, if exceeded, would require 

all CHE at the port to come into full compliance with the CHE Regulation within three 

years. The only port that is likely to qualify for this exemption is the Port of Humboldt 

Bay. This port is operating well below its historic level due to the recession. Diesel PM 

and NOx emissions at the Port of Humboldt Bay will be slightly greater than under the 

original rule, but will remain well below the 2006 baseline levels due to decreased 

activity. Also the North Coast Unified Air Quality Management District is in attainment 

for ozone and does not contribute to any downwind violations. This small port is vital to 

the local timber industry. Port goods movement service and future growth is limited by 

the lack of rail connection to communities outside the immediate vicinity. This small port 

is not in competition with any of other California ports and so does not receive an unfair 

business advantage due to this exemption. The number of pieces of equipment 

impacted by this exemption is small. There are approximately 20 pieces of CHE 

equipment currently operating at the Port of Humboldt Bay. This equipment will now be 

subject to the Off-Road In-Use Equipment Regulation and ARB staff is working with Port

of Humboldt Bay terminal operators to develop compliance plans for their equipment.

This will capture most of the increased emissions due to the exemption.

I2. Comment: As a point of clarification, SSI’s Oakland facility (which is privately 

owned, not on port property, and should not be considered a Port by ARB) has

an average annual throughput of less than one million tons per year. (SSI)

Agency Response: The commenter appears to be implying that it has some 

relationship to the rural port exemption. However, the rural port definition, discussed in 

the response to Comment I1, applies to the entire port area, not to a single facility. The 

commenter’s facility is within the Port of Oakland and, as such, is also closer than 75 

miles to an urban area. An “urban area” is defined in the CHE regulation as “...a 

densely developed territory that contains 50,000 or more people as defined by the latest 

U.S. Census Bureau census.”

J. USEPA Tier 4 Alt PM Emissions Standards 

J1. Comment: SSI does not support ARB treating these units (engines meeting 

USEPA Tier 4 Alt PM emissions standards) as Tier 3 engines. Requiring us to 

retrofit new technology well before the end of its useful life is unfair and an undue 

financial burden. (SSI)

Agency Response: As discussed in Chapter III of the ISOR, the USEPA Tier 4 Alt PM 

emissions standard is at least ten times dirtier than the primary Tier 4 PM standard and 

is similar in emissions to the primary Tier 3 PM standard. This amendment insures that 

originally anticipated emission reductions are achieved while concurrently providing 

owners/operators with flexibility to meet short-term operational needs by using engines 

meeting less stringent emission standards. Engines meeting USEPA Tier 4 Alt PM 
46

emissions standards will be required to be retrofitted with highest available VDECS, if 

available; however, if a VDECS is not available, there are no requirements that the 

equipment be replaced or repowered. 

J2. Comment: Engine manufacturers should ensure that Tier 4 engines meet Tier 4 

specifications, not an Alternative PM standard where the end user is responsible 

to install additional emissions controls/VDECS. The terminal operators are 

already paying much higher costs for this equipment. The consensus of opinion

is that any VDECS retrofit, requiring extra labor and lost-time to retrofit, would not

be beneficial. (APL, ITS, PMA)

Agency Response: The U.S. EPA allows engine manufacturers to produce a specified 

percentage of Tier 4 engines built to alternative, less stringent, PM and NOx emissions 

limits. These engines are referred to as FEL or Averaging, Banking, and Trading 

(AB&T) engines. Please see response to Comment J1 regarding the reason why ARB 

is requiring the retrofit of these engines. As documented in Appendix C of the ISOR,

the cost-effectiveness of this requirement is $63 per pound of PM reduced. As 

mentioned in the response to Comment H30, this is similar to the cost-effectiveness of 

similar diesel measures recently approved by the Board. Tier 4 Alt PM standards are 

essentially Tier 3 standards. To preserve the emission benefits originally intended for 

this regulation, these engines must be retrofitted with highest level VDECS, similar to a 

Tier 3 engine. 

J3. Comment: This must be transparent to the end user at the time of purchase. It 

is assumed that if a piece of equipment is available for sale in California then it 

must meet all California environmental requirements. If the point of sale is 

allowed to sell equipment that is not fully compliant with a CARB regulation then 

CARB should require that the seller is responsible for any future retrofit 

requirements at their cost and should compensate the buyer for any lost 

productivity. At the very least this would ensure full disclosure from the seller. 

(PMSA)

Agency Response: Language was added to the regulation as part of the 15-day 

modifications to require that any person who sells, offers for sale, or leases cargo 

handling equipment with an engine certified to Tier 4 Alternate PM off-road diesel 

engine standards, as specified in title 13, CCR, section 2423(b)(2)(B) or an independent 

engine certified to those standards that will be used in CHE to include the following 

disclosure in writing on the bill of sale, “When operated at a California port or intermodal 

rail yard, this engine is subject to the retrofit requirements of either subsection 

(e)(1)(B)3., (e)(3)(B)1.b., (e)(3)(B)2.b.,or (e)(3)(B)3.b. of the California Air Resources 

Board’s Regulation for Mobile Cargo Handling Equipment at Ports and Intermodal Rail 

Yards.” This way, a CHE owner/operator can make a fully informed decision prior to 

purchasing a specific piece of equipment and consider the additional time and cost 

necessary to retrofit the equipment in their purchase decision. The regulation does not 

require the seller to compensate the buyer for any costs; however, the buyer will be able 

to use the information in making his purchase decision. 
47

J4. Comment: Regarding requiring the retrofit with highest level VDECS of engines 

meeting USEPA Tier 4 Alt PM emissions standards, will mean higher cost to the 

industry but It may be difficult to find VDECS for these engines for some time. 

(SSA)

Agency Response: See the responses to Comments J1 and J2 regarding the need for 

this amendment and the associated costs.

J5. Comment: Recently a number of OEMs have certified Tier 4 interim engines 

without OEM installed DPFs. At least one engine manufacturer has indicated 

that it intends to certify Tier 4 final engines without wall-flow particulate filters. 

MECA is very concerned that a large number of future off-road engines will be 

deployed without DPFs that will survive many decades of use in the ports. By 

not using DPFs, these Tier 4 compliant engines will be able to comply with this 

regulation without employing BACT as required of older, in-use vehicles that are 

retrofit with VDECS or Tier 4 FEL certified engines that are required to install 

Level 3 VDECS. The Tier 4 certified engines that do not employ DPFs will be 

emitting billions of ultrafine PM particles for years to come. The original off-road 

fleet rule, adopted by the Board in May of 2007, provided a backstop that 

required all off-road vehicles operated in the state to be equipped with DPFs 

either via retrofits or original equipment by 2023. The removal of this 

requirement will mean that only some vehicles and equipment will operate with 

the best available control technology. (MECA)

Agency Response: ARB staff is aware that at least one engine manufacturer has 

indicated that they plan to certify an off-road engine to the primary Tier 4 standards 

without employing a DPF. We understand that the engine will be designed for high fuel 

efficiency, minimizing PM but possibly producing higher NOx and that selective catalytic 

reduction (SCR) technology will be used to control any excess NOx. The CHE 

Regulation does not require new engines that meet the Tier 4 primary PM emission 

standards to be retrofitted with DPFs. The emission of ultrafine PM from engines 

employing this technology is outside the scope of this rulemaking. 

K. Manufacturers versus End-user Responsibilities 

K1. Comment: Similar to our comments on opacity testing, the problems faced by 

our industry are engine and VDECS designs being intolerant to our duty cycles. 

Manufacturers doing business in California must provide products that will 

comply with California regulations, for the expected life of the product. If a 

“compliant” engine or VDECS fails to perform when operated and maintained in 

the duty cycle it was approved for, the manufacturer must be held accountable 

for providing whatever remedy necessary to bring that product back into 

compliance. Penalizing the end user will not improve the quality of product 

provided by the manufacturer. (YT)
48

Agency Response: Original equipment manufacturers ensure that their production 

engines meet the emission standards in place at the time of manufacture and provide 

data to USEPA that supports the durability of the emissions benefits. There are no 

requirements that these engines meet future emission standards. However proper 

maintenance is required for these engines to continue to operate as originally designed. 

The opacity monitoring program is being initiated to help verify that the proper 

maintenance is occurring and these engines are not emitting at higher levels than 

anticipated. 

ARB staff hosted a CHE technology meeting in May, 2011. Representatives of a 

predominant manufacturer of engines for CHE equipment were in attendance and gave 

a presentation discussing their emissions control technologies and the engine duty 

cycle the engine was intended to be operated with. After discussing the issues 

associated with their engines terminal owners/operators have been experiencing, staff 

of the engine manufacturer worked with terminal owners/operators to address any 

operational issues associated with their engines. 

Should a VDECS result in engine damage, Section 2707 of the verification regulation

prescribes the specific responsibilities a VDECS manufacturer’s has with regards to 

aftertreatment control performance and the extent to which they must address this 

issue. VDECS manufacturers are required to replace or repair damaged engine 

components caused by a malfunctioning VDECS to the condition they were in prior to 

the installation of the VDECS .

L. Warranty Engine Replacements 

L1. Comment: In cases of premature engine failure, CHE owners/operators are 

allowed to replace an engine under the original equipment manufacturer’s 

warranty with a like-engine even when newer engine standards are in place. 

This amendment will open the door to the continued use of polluting equipment. 

A timeframe should be set for the phase out of equipment based on the time it’s 

been in use, as has been done in other regulations. (CCA, EYCEJ, MAHA, 

NRDC)

Agency Response: New engine warranties are of a relatively short duration, generally

one to two years. Allowing a CHE owner/operator to replace an engine that suffers a 

catastrophic failure under the original equipment manufacturer’s warranty with a likeengine even if new engine standards are in place is a fair and cost-effective response to 

such a failure. In addition, these failures occur infrequently and, as such, there will be 

minimal numbers of these engines in the CHE engine population. The CHE Regulation 

provides for the phasing out of older CHE equipment by requiring that after 

January 1, 2007, in-use equipment must be either retrofitted, replaced, or retired, and 

newly acquired equipment must meet the most stringent new engine emission 

standards. . 

M. Non-Yard Truck Equipment Transfers
49

M1. Comment: In cases where a facility owner/operator wants to transfer a piece of 

CHE from one facility to another facility, the commenter would like to be able to 

transfer the equipment and maintain the current compliance date. Requiring the 

equipment to be brought into compliance with the CHE Regulation prior to any 

move adds between $25,000 and $35,000 to the expense of the move, which is 

estimated at $35,000 for one top-pick. (SSA)

Agency Response: The CHE Regulation, as adopted in 2006, required all equipment 

introduced onto a facility after January 1, 2007, to meet the requirements for newly 

purchased, leased or rented equipment. This amendment provides additional flexibility 

by allowing a terminal operator to move a piece of equipment from one port terminal or 

intermodal rail yard to another port terminal or intermodal rail yard under the control of 

the same owner or operator without requiring this equipment to meet the strict 

requirements for newly purchased, leased, or rented equipment. However, the 

transferred equipment must be brought into compliance with the requirements for in-use 

equipment before the equipment is put into operation at the new location. This protects 

against significant increases in emissions at the facilities to which the equipment is 

transferred, which could cause adverse health impacts on surrounding communities. 

While the costs to bring the equipment into compliance must be incurred earlier than the 

original compliance date, these costs are significantly less than the cost to purchase a 

new piece of equipment. 

M2. Comment: Non-yard truck equipment transfers should not be limited to only 

port-to-port transfers. SSI operates a number of manufacturing facilities 

throughout California that are not in a port area and we must be able to transfer 

equipment among all of these facilities as necessary. Most of SSI’s non-road 

equipment fleet is used for manufacturing, and equipment transfers between our 

facilities allows for back-up in the case of equipment repairs. The non-road 

equipment emissions at our SSI facilities, with the exception of Oakland, are 

regulated under CARB’s Off-Road rule, and that rule allows for equipment to be 

utilized between facilities. Equipment transfers should be allowed in a similar 

manner to the In-Use Off-Road Equipment Regulation. (SSI)

Agency Response: The equipment used at the commenter’s port facility must comply 

with the CHE Regulation. If the commenter wishes to interchange equipment between 

the port and non-port facilities, then the entire fleet to be used should have been 

reported to ARB as in-use equipment as of January 1, 2007. This equipment would 

then be subject to the CHE Regulation in-use equipment compliance dates. The CHE 

Regulation deals specifically with a captive fleet that impacts the health risk for the 

surrounding communities. The Off-Road Regulation deals with equipment that is 

expected to move freely about the State. Consequently equipment moves are handled 

very differently between the two regulations. 

N. Alternative Technologies, Zero Emission and Hybrid Equipment 
50

N1. Comment: We believe the staff proposal for an additional focus in emphasis on

more rapid transition to zero emissions technologies will benefit many of 

California’s clean air, climate, health protection, and environmental justice goals. 

(ALA1)

Agency Response: See response to Comment A1 regarding the provisions added to 

the regulation in the 15-day Modifications to add emphasis on zero emission 

technologies. 

N2. Comment: The amendments to the CHE Regulation will hamper our 

collaborative efforts to speed up the implementation of Zero Emissions Container 

Movement Systems (ZECMS) and delay any steps to achieve AB 32 greenhouse 

gas emissions reductions and Scoping Plan goals. (CCA, EYCEJ, MAHA, 

NRDC)

Agency Response: We disagree. See response to Comment A1 regarding the 

provisions added to the regulation to encourage the implementation of zero emission 

technologies. 

N3. Comment: These amendments do not address or incorporate actions for short 

or long term GHG emissions reductions from this sector. This would be a missed 

opportunity to make gains toward AB 32 goals. Given CARB’s Sustainable 

Freight Initiative, GHG emissions reductions co-benefits should be pursued while 

amending this rule. CARB has the opportunity to set forth GHG actions at the 

same time it adjusts its diesel regulations. By doing so, CARB will give industry a 

better direction to plan their equipment investments with less concern about 

impending GHG regulations. (CCA, EYCEJ, MAHA, NRDC)

Agency Response: We disagree. See response to Comment A1 regarding the 

provisions added to the regulation in the 15-day modifications to encourage the 

implementation of zero emission technologies. The CHE Regulation is intended to 

specifically address PM and NOx emissions. As acknowledged by the commenters, 

GHG emissions will be specifically addressed as part of the sustainable freight initiative

where a more global approach will be considered. The regulation, as amended, 

provides CHE owners/operators with a number of compliance options that enables them 

to make necessary business decisions for the immediate future.

N4. Comment: Since 2005, when the CHE regulation was originally adopted, zero 

emissions and hybrid cargo handling equipment alternatives have increased 

dramatically. ARB staff needs to complete a revised technical appendix for this 

regulation, including a technological assessment of zero emissions and hybrid 

container movement systems before this regulation is submitted to the board for 

approval. (ALA, CCA, CCA1, EO/CCP, EYCEJ, EYCEJ1, MAHA, NRDC,

NRDC1, SCAQMD1)
51

Agency Response: In the Board resolution, the Board directed ARB staff to conduct a 

comprehensive assessment of zero-emission cargo handling equipment technologies 

including, but not limited to, the associated costs, cost-effectiveness, and feasibility. 

ARB staff has initiated this assessment. Stakeholders will be welcome to comment on 

the technology assessment when the draft is released for public comment. Additionally, 

please see the response to Comment A1 regarding the provisions added to the 

regulation in the 15-day modifications to add emphasis on zero emission technologies. 

N5. Comment: As part of the resolution to adopt these amendments we urge you to 

direct staff to support alternatives through the following:

• Promotional and informational activities, such as case studies, and meeting 

with CHE users/purchasers, ports, and equipment operators.

• Provide support for technology near commercialization, such as certification 

assistance, involvement in pilot projects and subsidization of equipment 

purchases.

• Provide support for the demonstration of promising technologies with 

priorities in the largest rail yards, where CARB and rail companies have 

committed to expedite air pollution mitigation programs. 

(ALA, CCA1, EO/CCP, EYCEJ1, NRDC1)

Agency Response: There are several ways that ARB staff currently support 

alternatives, as discussed below.

As documented in the ISOR, ARB staff held a technical meeting on May 26, 2011, in 

Sacramento to discuss the operation of new cleaner technologies with equipment 

owners/operators and equipment manufacturers. Staff plans to hold meetings in the 

future to provide information on and receive feedback concerning other new cleaner 

technologies. 

Please see the response to Comment A3 regarding various ARB incentive programs 

which are devised to promote the demonstration and commercialization of new cleaner 

technologies. Additionally, staff will consider how to promote new technologies as part 

of the technology assessment referenced in the response to Comment B1. ARB’s 

Freight Initiative will also be evaluating opportunities for promoting new cleaner 

technologies. 

N6. Comment: While we believe an assessment should have been done before 

adopting the current CHE Regulation amendments, a future assessment can still 

direct CARB and industry actions toward a cleaner, safer cargo handling 

industry. Please see the attached example detailing such a technology 

assessment, including a list of the many alternatives that we are aware of for 

cargo equipment (e.g. Linear Synchronous Motor Technology, plug-in hybrid 

electric Class 8 vehicles, alternatively-fueled yard tractors, electric–battery 

forklifts, alternatively-fueled forklifts, hydrogen-electric forklifts, diesel-electric 

hybrid straddle carriers, electric and diesel-electric hybrid RTG cranes, and 

electric rail CHE). Staff has committed to including this technology assessment 
52

in the freight initiative, possibly as early as 2012, we want to be involved in this 

process of reviewing the feasibility of the technologies assessed. (ALA, CCA1, 

EO/CCP, EYCEJ1, NRDC1)

Agency Response: See response to Comment N4 above regarding the initiation of a

technology assessment. The assessment will evaluate the array of technologies listed 

by the commenter. Stakeholders will be welcome to comment on the assessment after 

it has been made public. As mentioned in the response to Comment B1, our first initial 

assessment has determined that electric and hybrid equipment are currently available 

for only a limited array of CHE, primarily yard trucks, small forklifts, and RTG cranes. 

N7. Comment: This is an area where the Alternative Compliance Program could 

provide flexibility to help the CHE regulation benefit from hybrid power systems 

available for equipment affected under the rule. (ALA, CCA, CCA1, EO/CCP, 

EYCEJ, EYCEJ1, MAHA, NRDC, NRDC1)

Agency Response: The Alternative Compliance Plans (ACP) in the original CHE 

Regulation has allowed the consideration of new technologies. As part of the 15-day 

modifications, regulatory language was added to specifically list hybrid and electric 

technologies as technologies that may be used in an Alternative Compliance Plan. 

Additionally, regulatory language was added as part of the 15-day modifications to allow 

yard trucks to be included in an ACP.

N8. Comment: Alternative fuel vehicles, including electric equipment, should not 

simply be a form of compliance with Best Available Control Technology (BACT). 

Instead alternative fuels should be the preferred method of compliance, 

especially where staff finds CHE technologies that are promising but not yet 

commercially available. ARB should outline a plan for supporting the 

demonstration and commercialization of alternate fuel vehicles, including electric 

equipment. (ALA, CCA, CCA1, EO/CCP, EYCEJ, EYCEJ1, MAHA, NRDC

NRDC1, SCAQMD1)

Agency Response: Please see the response to Comment A3 regarding the 

Administrative Procedures Act, which governs ARB’s regulatory process for adopting 

regulations, and directs ARB to adopt performance based standards when possible 

rather than prescriptive standards. Please also see in the response to Comment A3 the 

discussion about the various ARB incentive programs which are designed to promote 

the demonstration and commercialization of new cleaner technologies. In the 

technology assessment, referred to in Comment B1, ARB staff will be reviewing 

opportunities for the introduction of alternative fueled equipment. As mentioned in the 

response to Comment A1, regulatory language was added in the 15-day modifications 

to encourage the introduction of alternative technology equipment. Additionally, the 

Freight Initiative will be reviewing options for alternative technologies. 

Finally, implementation of ARB’s Low Carbon Fuel Standard (LCFS) encourages fuel 

diversity and petroleum replacement by lowering the carbon content of transportation 
53

fuels used in California. The LCFS is designed to provide a durable framework that 

uses market mechanisms to spur the steady introduction of lower carbon fuels. The 

framework establishes performance standards that fuel producers and importers must 

meet each year beginning in 2011. The LCFS will also reduce GHG emissions from the 

transportation sector by approximately 16 million metric tons in 2020.

N9. Comment: In addition to reducing particulate matter and NOx pollution, 

alternative fuels bring other benefits to the State of California including fuel 

diversity, petroleum replacement, and lower GHG emissions. These benefits 

should be strongly encouraged and incentivized, if not mandated at intermodal 

yards and marine terminals, where fleets are centrally fueled and managed, 

allowing for the use of specialized fuels. (CCA, EYCEJ, MAHA, NRDC)

 

Agency Response: See response to Comment A3 regarding the need for performance 

based standards rather than prescriptive standards and the discussion of ARB incentive 

programs to fund alternative technologies.

N10. Comment: AQMD staff strongly believes that there is an opportunity to 

encourage and incentivize the use of zero-emission technologies for CHEs within 

the framework of the regulation. (SCAQMD)

Agency Response: Please see response to Comment A1 regarding the provisions 

added to the regulation in the 15-day modifications to encourage the implementation of 

zero emission technologies. Please see response to Comment A3 regarding ARB 

incentive programs to encourage the use of zero–emissions technologies.

N11. Comment: We do see opportunities to increase or accelerate the deployment of 

these zero emission equipment, and we have been talking with staff about other 

approaches similar to your off-road regulation and your truck and bus regulation 

that provides additional credits to early adopter of zero-emission equipment. And 

we believe that can provide more flexibility to the program. (SCAQMD, 

SCAQMD1)

Agency Response: The Off-Road Regulation and the On-Road Truck and Bus 

provision which provide credits for early adoption of zero emission or hybrid vehicles 

control emissions from statewide fleets that move freely about California. As discussed 

in the response to Comments E1 and H1, the impact of the CHE fleet emissions on the 

health risk of the surrounding communities results in the need for more stringent control 

than the control of the state-wide off-road fleets. Providing credits to early adopters of 

zero-emission equipment would allow higher emitting equipment to operate longer than 

the regulation specifies. ARB staff believes that requiring all equipment to comply with 

the stringent CHE Regulation standards provides more effective emissions controls than 

the early introduction of zero-emission equipment in conjunction with allowing 

uncontrolled equipment to continue to operate. ARB staff prefers to incentivize the use 

of zero-emission equipment through voluntary programs. Additionally, as discussed in 

the response to Comment A1, changes were made to the regulation’s language in the 
54

15-day modifications to allow yard trucks to be included in alternative compliance plans 

as well as requirements for replacement with zero and near-zero emissions 

technologies for the third and fourth years of a “No VDECS Available” compliance 

extension, both of which provide incentives for these technologies.

N12. Comment: ARB should participate in, and co-fund, the linear synchronous 

motor project at the Ports of Los Angeles and Long Beach to support the 

transition to Zero Emissions Container Movements Systems (ZECMS). (ALA, 

CCA1, EO/CCP, EYCEJ, NRDC1, SCAQMD)

Agency Response: This is outside the scope of this rulemaking, therefore no 

response is needed.

O. CHE Emissions Inventory Methodology

O1. Comment: ARB has combined the population of equipment and activity data 

from various ports to develop category averages. This differs from the Port of 

Long Beach’s (POLB) approach in which the annual inventories are calculated at 

a detailed, individual equipment level, providing a more accurate estimate of 

emissions. As a result, even with the use of the same data and emissions 

calculation methodology, the Port’s emissions estimates and ARB’s emissions 

estimates will likely differ and impact the comparison of emissions reductions 

under the upcoming State Implementation Plan (SIP) and Clean Air Plan (CAAP). 

It is recommended that the Port and ARB work cooperatively to account for these 

differences during future SIP and CAAP updates. (POLB)

Agency Response: This comment does not pertain to the current rulemaking, 

therefore no response is needed. However, ARB staff will continue to work with the 

ports on their annual emissions inventories which includes discussing the differences 

between ARB assumptions and the Ports’.

O2. Comment: POLB has noted a change in ARB methodology to determine 

deterioration rates for CHE. The previous ARB suggested methodology (and the 

current methodology used by POLB in its annual port-wide emissions 

inventories) determines the deterioration rate of equipment based on the “useful 

life” of equipment, by equipment type. In the updated cargo-handling equipment 

emissions inventory, ARB assumes that full deterioration of equipment occurs at 

12,000 hours of use. This assumes that the rate of deterioration is the same for 

all equipment regardless of equipment useful life. It is POLB’s opinion that fixing 

deterioration at 12,000 hours of use is overly conservative and does not reflect 

the useful life of maintenance practices of terminal operators at the Port, nor 

does it accurately reflect the actual rate of deterioration of CHE operating at the 

Port. It is therefore recommended that the Port and ARB work together to 

develop a more accurate deterioration profile for CHE operating at POLB. 

(POLB)
55

Agency Response: Improvements in the methodology for estimating the emissions

from CHE included adjustments to the estimated useful life of engines. The rationale for 

these changes is provided in the ISOR Appendix B. No changes in the emission 

standards resulted from these changed in the emissions calculation methodology. The 

changes in methodology impacts emissions accounting only and has no impact on the 

emission standards in the CHE Regulations. The emission standards are based on the 

model year of the engine and what retrofit technology is available and not on engine 

operating hours. Emissions inventory methodologies are constantly changing as new 

and better data becomes available. ARB staff will continue to work with the ports to 

improve mobile source inventory methods. ARB staff is also very supportive of efforts 

to collect additional information that will improve the ports’ and ARB’s inventories.

IV. SUMMARY OF PUBLIC COMMENTS AND AGENCY RESPONSES – NOTICE OF 

MODIFIED TEXT

Two written comment letters were received in response to the 15-day notice of 

modifications to the proposed amendments. Many of the comments in the letter from 

Pacific Merchant Shipping Association (PMSA) repeated comments regarding the 

opacity monitoring program that had been received during the 45-day comment period 

and did not specifically address the proposed 15-day modifications. These comments 

were summarized and responded to in the Summary of Comments and Agency 

Responses to the Original Proposal. See response to Comments H2, H5, H7, H10, and 

H31. ARB staff has not restated these specific comments as they were (1) not 

responsive to the 15-day modifications and (2) as stated, were previously addressed in 

the 45-day comment responses. A summary of all the comments previously not 

responded to, and ARB’s responses, are provided below.

Comments Received during the 15-day Comment Period

Abbreviation Commenter

MECA2 Manufacturers of Emission Controls Association

Dr. Rasto Brezny

Written Testimony: June 22, 2012

PMSA1 Pacific Maritime Association

T.L. Garrett

Written Testimony: July 2, 2012

1. Comment: Several of our members have shared with me their experience with opacity 

measurements on Tier 3 equipment. Even brand new Tier 3 engines may exhibit higher 

opacity than Tier 2 certified engines. Within a few thousand hours the opacity on some 

of these engines is significantly above the OEM certification values. Furthermore, 
56

MECA members experience is that many machines used in cargo handling operations 

are used around the clock and therefore may accumulate more than 2,000 engine hours 

per year. Therefore over the period of their exemption from opacity monitoring, they

would exceed the full useful life of the engine that manufacturers use to certify off-road

equipment which is 8,000 hours. I understand that the four year exemption was based 

on a precedent set for highway heavy-duty trucks, however, on-road vehicles don’t see 

the around the clock heavy use that CHE equipment is subjected to.

Due to the high rate of operation for this equipment the opacity measurement exemption 

should be limited to four years or 4,000 hours after the model year of the engine, 

whichever comes first. (MECA2)

Agency Response: We disagree with this recommendation. We believe, in this case,

consistency with the exemption for on-road vehicles is appropriate. This exemption 

represents the best starting point for an in-use opacity testing program for CHE. ARB 

staff will track and evaluate the implementation of the opacity testing requirement. If we 

find durability issues, we can initiate further study and determine what actions are 

needed to address any issues that arise. 

2. Comment: If an operator waits for four years before checking the engine out opacity, 

fleets won’t have any reference point as to what the normal opacity for that engine 

should be and will likely use the four year value as the baseline. The experience of 

VDECS manufacturers is that many of these machines will already have elevated 

opacity by the time they are four years old as the opacity values reported in the EPA 

engine certification are typically substantially higher than a highway engine.

We would recommend that as new engines are put into service, they be required 

to measure and record a baseline engine out opacity value for the engine. 

(MECA2)

Agency Response: We disagree. Opacity limits are based on the original certification 

requirements for the engine and the opacity level consistent with that certification level. 

These limits are provided in the regulatory text, sections (e)(2)(A)5.e for yard trucks and 

(e)(3)(B)3.e for non-yard truck equipment, as well as in Table II-1 of Chapter II of the 

ISOR. These limits serve as the “reference point” as to what the normal opacity for the 

engine. Consequently, initial tests for the new engines are not required. 

3 Comment: Per section 2479(e)(2)5.f. - PMSA is also concerned that this 

provision has been proposed without fully examining whether or not potential 

issues with respect to the existing labor structure that is in place at most west 

coast marine terminals is compatible with this requirement. This overlyprescriptive mandate on a marine terminal to conduct this testing on equipment 

could prove to be extremely problematic for both the terminals and their labor 

force if these requirements lead to significant disruptions. At the very least, 

CARB should first discuss with marine terminal operators ways to achieve the 

goal intended by this requirement prior to determining how we should be 
57

conducting our day-to-day operations in this matter. While we are convinced that 

mutually acceptable solutions can be found, it is often not possible for terminal 

operators to quickly and simply hire contractors to perform these tasks outside of

existing labor agreements, and likewise it is neither quick, inexpensive or simple 

for the existing terminal labor force to constantly retool itself to address new 

certification protocols outside of their core jobs and training regiments. The need 

to train appropriate labor to administer the SAE J1667 test procedures or find 

new manners in which to employ the existing contractors skilled in this area may

require an extension of the timelines for opacity testing outlined in Section 

2479(e)(2)(A)5.f. (PMSA1)

Agency Response: This comment is not responsive to the 15-day modifications. 

However, out of consideration to the commenter, ARB staff will address their comment. 

It is essential to the integrity of the opacity monitoring program that individuals 

performing the monitoring be consistently trained to administer the opacity test per the 

SAE requirements. As mentioned in Comment H8 of the original 45-day comments, an 

individual can affect the outcome of the test by how fast and how hard the throttle is 

used. These classes are used by other unionized labor forces for fleets required to 

opacity monitor their on-road diesel truck fleets. It is not unreasonable to require 

specific training for administering this monitoring in a consistent manner. We would 

also point out the properly operating diesel engines is critical for the health and safety of 

the terminal labor force.