ATTACHMENT A 

State of California 

AIR RESOURCES BOARD 

Resolution 03-37 

February 26, 2004 

Agenda Item No.: 03-10-2 

WHEREAS, sections 39600 and 39601 of the Health and Safety Code authorize 

the Air Resources Board ("ARB" or "Board") to adopt standards, rules and · 

regulations and to do such acts as may be necessary for the proper execution of 

the powers and duties granted to, and imposed upon, the Board by law; 

WHEREAS, section 39618 of the Health and Safety Code classifies refrigerated 

trailers as mobile sources to be regulated by the Air Resources Board on a 

statewide basis to prevent confusion concerning whether refrigerated trailers are 

stationary sources when not being driven and to prevent inconsistent regulation 

by air pollution control and air quality management districts when such vehicles 

are operated in more than one district; 

WHEREAS, section 41511 provides that for the purpose of carrying out its duties, 

the Air Resources Board may adopt rules and regulations to require the owner or 

. the operator of any pollution emission source to take such action as the Air 

Resources Board may determine to be reasonable for the determination of the 

amount of emissions from such source; 

WHEREAS, under section 39650 of the Health and Safety Code, the Legislature 

finds and declares that it is the public policy of the State that emissions of toxic 

air contaminants should be controlled to levels which prevent harm to the public 

health; 

WHEREAS, on August 27, 1998, the Board identified diesel exhaust particulate 

matter as a toxic air contaminant pursuant to article 3 (commencing with 

section 39650), chapter 3.5, part 2, division 26 of the Health and Safety Code; 

WHEREAS, in identifying diesel exhaust particulate matter as a toxic air 

Contaminant, the Board determined that there is not sufficient scientific evidence 

to support identification of a threshold level below which no significant adverse 

health .effects are anticipated, as codified in title 17, California Code of 

Regulations, section 93000; 

WHEREAS, pursuant to section 39665 of the Health and Safety Code, the Air 

Resources Board staff prepared, and on September 28, 2000, the Board 

approved, a comprehensive risk reduction plan to significantly reduce diesel 

exhaust particulate matter emissions from diesel~ft~eled engines and vehicles: 
. ~" ··""' 

Resolution 03-37 2 

WHEREAS, the Office of Environmental Health Hazard Assessment listed under 

section 39669.5(a) of the Health and Safety Code diesel exhaust particulate 

matter and other compounds associated with diesel exhaust as possibly causing 

infants and children to be especially susceptible to illness; 

WHEREAS, sections 39658, 39665, 39666, and 39667 of the Health and Safety 

Code authorize the Board to establish airborne toxic control measures for 

substances identified as toxic air contaminants in accordance with specified 

criteria; 

WHEREAS, in fulfilling the requirements of the aforementioned sections, the 

Board is required to consider adoption of an airborne toxic control measure for 

sources, including mobile sources, to achieve the maximum possible reduction in 

public exposure based on its prior determination not to specify a threshold 

exposure level for diesel exhaust particulate matter under section 39662 of the 

Health and Safety Code; 

WHEREAS, an airborne toxic control measure for an existing source, including a 

mobile source, developed pursuant to sections 39666 and 39667 of the Health 

and Safety Code is required to be based on application or utilization of the best 

available control technologies or more effective control methods, unless the 

Board determines, based on an assessment of risk, that an alternative level of 

emission reduction is adequate or necessary to prevent an endangerment of 

public health; 

WHEREAS, the diesel exhaust particulate matter risk reduction plan identified 

the temperature-control systems associated with refrigerated straight truck vans, 

trailer vans, railcars, and shipping containers, which are commonly known as 

transport refrigeration units and transport refrigeration unit generator sets 

(hereinafter designated as TRUs and.TRU generator sets); 

WHEREAS, sections 43013(b) and 43018 additionally provide the Air Resources 

Board with broad authority to adopt emission standards and regulations for 

vehicular and other mobile sources; · 

WHEREAS, diesel-fueled engines associated with TRUs and TRU generator sets 

are a source of diesel exhaust particulate matter; 

WHEREAS, Air Resources Board staff has determined that neither the current 

emission standards for engines the State designates as "off-road" and the United 

States Environmental Protection Agency designates as "nonroad," nor the 

proposed United States Environmental Protection Agency Tier 4 emissions 

standards all of which apply only to new, but not in-use, "nonroad" engines, will 

sufficiently reduce diesel exhaust particulate matter emissions from the in-use 

TRUs and TRU generator sets, which comprise a significant portion of the 

California fleet; · 
Resolution 03-37 3 

WHEREAS, the Air Resources Board staff has determined that aligning the 

proposed in-use performance standards witn the proposed federal Tier 4 

emission standards for new engines is anticipated to achieve, in the most cost 

effective manner, the maximum feasible emission reductions of diesel PM 

generated from in-use TRU engines; 

WHEREAS, the diesel exhaust particulate matter risk reduction plan included 

recommendations for reducing emissions, exposure, and associated potential 

cancer risk from TRU and TRU generator set engines, particularly near facilities 

where TRUs and TRU generator sets operate; 

WHEREAS, to augment the general information and recommendations provided 

in the diesel exhaust particulate matter risk reduction plan, the Air Resources 

Board staff met and worked with affected private industry, federal, State, and 

local public agencies, and the public; 

WHEREAS, with the information and comments received from such meetings, 

the ARB staff prepared a report, entitled the Initial Statement of Reasons for 

Proposed Rulemaking- Airborne Toxic Control Measure for In-Use Diesel-Fueled 

Transport Refrigeration Units ITRU) and TRU Generator Sets, and Facilities 

Where TRUs Operate (hereinafter designated as the Initial Statement of 

Reasons); 

WHEREAS, the Initial Statement of Reasons further identified and explained the 

need and appropriate degree of regulation for diesel exhaust particulate matter 

that was earlier addressed in the diesel exhaust particulate matter risk reduction 

plan required by Health and Safety Code section 39665(a); 

WHEREAS, the Initial Statement of Reasons further discussed, to the extent data 

could reasonably be made available, the factors specified in Health and Safety 

Code section 39665(b) in adopting the diesel exhaust particulate matter risk 

reduction plan, including: estimates of emissions, exposure, and potential cancer 

risk clue to the operation of diesel-fueled engines associated with TRUs and TRU 

generator sets, feasible control options, potential environmental impacts, cost of 

compliance for private and State and local public agency facilities frequented by 

TRUs and TRU generator sets and/or operators of TRUs and TRU generator 

sets, and cost impacts for Air Resources Board implementation of the proposed 

Airborne Toxic Control Measure; 

WHEREAS, as part of the Initial Statement of Reasons, staff performed a risk 

assessment on a generic (i.e., example) facility, such as a refrigerated 

warehouse distribution center, assuming a total of 300 hours of TRU and TRU 

generator set operation per week and a diesel exhaust particulate matter 

emission rate of 0.7 grams per brake horsepower-hour and, as a result of. 

modeling analyses, estimate the potential cancer risk would be in the 1 0 to 1 00 

per million range between 250 and 1 ,000 meters (800 to 3,300 feet) from the 
Resolution 03-37 4 

facility and would decrease to less than 1 0 per million at approximately 1,1 00 

meters (3,600 feet) from the facility; 

WHEREAS, concepts and draft proposals regarding the proposed Airborne Toxic 

Control Measure were discussed at two public consultation meetings, nine 

workgroup meetings, and five public workshops; 

WHEREAS, in accordance with the authority set forth above, staff evaluated 

various control options, including: 

Reliance on existing State off-road engine and existing and proposed 

United States Environmental. Protection Agency nonroad engine emission 

· standards with no additional control of in-use TRU and TRU generator set 

engines; and 

Requiring refrigerated transport units at facilities to operate on electric 

power rather than on diesel-fueled engines; 

WHEREAS, in accordance with the above authority, the staff has now proposed 

adoption of title 13, California Code of Regulations (CCR), section 2022 and 

concluded that the proposed requirements set forth therein would reduce diesel 

exhaust particulate matter emissions and associated cancer and other adverse 

health effects statewide and significantly reduce such emissions and adverse 

health effects near California facilities where TRUs and TRU generator sets 

operate: 

In-use TRU and TRU generator set engine performance standards based on 

engine horsepower rating to be phased-in starting in 2008 and continuing 

through 2020 with an early compliance incentive provided for operators with 

2002 and older TRU and TRU generator set engines; · 

An initial operator report, to be updated as necessary, with information about 

the TRUs and TRU generator sets operated in California; and 

A one-time report from facilities with 20 or more loading dock doors serving 

refrigerated storage areas to enable staff to evaluate the overall effectiveness 

of the regulation in reducing diesel exhaust particulate matter concentrations 

near facilities where numerous TRUs and TRU generator sets operate; 

WHEREAS, staff estimated the overall cost effectiveness associated with 

compliance with the proposed Airborne Toxic Control Measure to range from $1 0 

to $20 per pound of diesel exhaust particulate matter reduced; 

WHEREAS, no significant compliance costs are expected for federal, State, or 

local public agencies because few of these agencies are subject to the proposed 

Airborne Toxic Control Measure and because those that are subject operate, or 

control the operation of, relatively few TRUs or TRU generator sets; -
Resolution 03-37 5 

WHEREAS, the initial costs associated with implementation and enforcement of 

the proposed Airborne Toxic Control Measure are expected to be absorbed into 

existing Air Res,ources Board budgets and additional staffing is not expected to 

be required; · 

WHEREAS, compliance with the proposed Airborne Toxic Control Measure is 

expected to reduce exposure to, and associated additional cancer and other 

adverse health risk from, diesel exhaust particulate matter; 

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

the Public Resources Code and Board regulations at title 17, CCR, section 

60006 require that no project that may have significant adverse environmental 

impacts be adopted as originally proposed iffeasible alternatives or mitigation 

measures are available to reduce or eliminate such impacts; 

WHEREAS, a public hearing and other administrative proceedings have been 

held in accordance with the provisions of chapter 3.5 (commencing with 

section 11340), part 1, division 3, title 2 of the Government Code; 

WHEREAS, in consideration of the Initial Statement of Reasons. written 

comments, and public testimony it has received, the Board finds that: 

Existing federal, State, and local regulations and proposed United States 

Environmental Protection Agency Tier 4 emission standards for new 

nonroad engines do not sufficiently protect the public health from diesel 

exhaust particulate matter associated with in-use TRU and TRU generator 

set engine operation; 

The proposed Airborne Toxic Control Measure is expected to provide 

flexibility in choice of compliance options, control emissions, reduce 

exposure, and protect health more effectively than any other possible 

alternative evaluated in accordance with the authority vested under the 

Health and Safety Code by requiring the following: 

In-use TRU and TRU generator set engine performance standards 

based· on engine horsepower rating to be phased-in starting in 2008 

and continuing through 2020 with incentive for earty compliance, 

An initial operator report, to be updated as necessary, with information 

about the TRUs and TRU generator sets operated in California; and 

A one-time report from facilities with 20 or more loading dock doors 

serving refrigerated storage areas to enable staff to evaluate the 

overall effectiveness of the regulation in reducing diesel exhaust 

particulate matter concentrations near facilities where numerous TRUs 

and TRU generator sets operate; 
Resolution 03-37 6 

The proposed Airborne Toxic Control Measure would reduce exposure to 

potential diesel exhaust particulate matter emissions and associated 

cancer and other adverse health effects in all communities in which TRU 

and TRU generator set engines operate; 

The ecdnomic impacts of the proposed Airborne Toxic Control Measure 

have been analyzed as required by California law, and the conclusions 

and supporting documentation for this analysis are set forth in the Initial 

Statement of Reasons; 

The benefits of the proposed Airborne Toxic Control Measure to public 

health and the environment justify the costs of compliance, 

implementation, and enforcement; and 

No alternatives considered or that have otherwise. been identified and 

brought to the attention of the Air Resources Board would be more 

effective at carrying out the purpose for which the Airborne Toxic Control 

Measure is proposed, or would be as effective and less burdensome to 

the affected private businesses and public agencies than the proposed 

Airborne Toxic Control Measure; 

WHEREAS, the Board further finds, in accordance with Health and Safety Code 

section 39650(e), that while absolute and undisputed scientific evidence may not 

be available to determine the exact risk from diesel exhaust particulate matter 

from diesel-fueled engines associated with TRUs and TRU generator sets, it is 

necessary to take action to protect public health and that the maximum feasible · 

emission reductions permitted by law should be obtained; 

WHEREAS, pursuant to Health and Safety Code sections 39666 and 39667, the 

Board further finds that the proposed in-use emission standards adopted herein 

are based on utilization of the best available control technologies identified within 

the time scheduled for compliance; 

WHEREAS, pursuant to Health and Safety Code section 43013(b), the Board 

further finds that the in-use emission standards adopted herein. are found to be 

necessary, cost-effective, and technologically feasible within the time provided 

for compliance; 

WHEREAS, the Board further finds based on its independent judgment and 

analysis of the entire record before it that:. 

With respect to the requirements of CEQA, the proposed Airborne Toxic 

Control Measure set forth at section 2022, title 13, CCR, will not have a 

significant effect on the environment, but will result in the reduction of 

· diesel exhaust particulate matter; 
Resolution 03-37 7 

Having identified that the proposed Airborne Toxic Control Measure will 

not adversely affect the environment, but rather provide environmental 

benefits that are achieved both statewide and locally, the proposed 

regulation should not adversely impact any community in the State, 

especially low-income or minority communities; 

The reporting requirements applicable to businesses under section 2022, 

title 13, CCR, are necessary for the health, safety, and welfare of the 

people of the State. 

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

adoption new division 3, chapter 3, article 4, section 2022, title 13, California 

Code of Regulations, as set forth in Attachment A and modified by Attachment B 

hereto; 

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

incorporate into the approved regulations the modifications set forth in 

Attachment B, with such other conforming modifications as may be appropriate, 

and then to adopt the amendments and new regulation, after making the 

modified regulatory language available for public comment for a period of 15 

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

regarding the modifications as may be submitted during this period, shall make 

modification as may be appropriate in light of the comments received, and shall 

present the regulations to the Board for further consideration if the Executive 

Officer determines that this is warranted; 

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

explore.the possibility of entering into pilot-demonstration projects on an ad hoc 

basis with interested stakeholders on application of advanced technologies; such 

projects shall be for the purpose of determining whether such technologies will 

provide equal or greater health and welfare benefits in a cost-effective and 

technologically feasible manner. Such programs should be of limited duration 

and scope as determined by the Executive Officer. If determined that pilotdemonstration projects are appropriate, the Executive shall also consider 

whether 15-day changes to the regulation are necessary for their implementation. 

BE IT FURTHER RESOLVED that the Board hereby determines that pursuant to 

Title II, section 209(e)(2) ofthe federal Clean Air Act, as amended in 1990, that 

the emission standards and other requirements related to the control of 

emissions adopted as part of this Airborne Toxic Control Measure are, in the 

aggregate, at least as protective of public health and welfare as applicable 

federal standards, that California needs the adopted standards to meet 

compelling and extraordinary conditions, and that the adopted standards and 

accompanying enforcement procedures are consistent with the provisions of 

section 209; 
Resolution 03-37 8 

BE IT FURTHER RESOLVED that the Board directs the Air Resources Board 

staff to: 

Pursuant to the determination set forth above, to file a request for 

authorization from the United States Environmental Protection Agency 

pursuant to section 209(e)(2) of Title II of the federal Clean Air Act as 

amended in 1990; 

Consider, if necessary, amending the proposed in-use performance 

standards for TRUs to align with the final U.S. EPA "Tier 4" emission 

standards for new, compression ignited TRU engines; in considering 

whether alignment is appropriate, staff shall be cognizant of the continuing 

risks associated with diesel PM emissions and make every effort to ensure 

that the emission reductions forecasted for this rulemaking be achieved. in 

the time frame provided; 

Educate affected TRU and TRU generator set operators and facilities 

where TRUs and TRU generator sets operate about the requirements of 

the regulation; 

Develop an identification (1.0.) numbering system and database to track 

compliance of TRUs and TRU generator sets that operate in California; 

Review large facility reports (submission required in 2005) to determine if 

the regulation sufficiently reduces diesel exhaust particulate matter 

concentrations near facilities where numerous TRUs and TRU generator 

sets operate; 

Closely monitor progress and development of emission control technology 

as it applies to TRUs and TRU generator set emission standards set forth 

in this Airborne Toxic Control Measure and report back to the Board in 

2007 and 2009 on staffs conclusions regarding the feasibility of the 

standards in the time provided in the regulation for compliance; 

Work with the United States Environmental Protection Agency to identify a 

diesel exhaust particulate matter emission standard for new nonroad 

engines that are less than 25 horsepower; 

Work with TRU, TRU generator set, and engine manufacturers to develop 

a list to cross reference TRU and TRU generator set makes, models, and 

model years with Executive Order numbers that set forth engine exhaust 

emission certification levels and deterioration rates for specific TRU and 

TRU generator set engine makes, models, and model years; and 
Resolution 03-37 9 

Ensure compliance with the regulation through roadside TRU and TRU 

generator set inspections in conjunction with the Heavy-Duty Vehicle 

Inspection Program. facility audits, and other enforcement actions as 

necessary. 

I hereby certify that the above is a true 

and correct copy of Resolution 03-37, as 

adopted by the Air Resources Board. 

~: Anckmi 

Olifidfeort:Cierk of the Board 
• 

Resolution 03-37 

February 26, 2004 

Identification of Attachments to the Board Resolution 

Attachment A:· Proposed Airborne Toxic Control Measure for In-Use 

Diesel-Fueled Transport Refrigeration Units (TRU) and TRU 

Generator Sets, and Facilities Where TRUs Operate 

(division 3, chapter 3, article 4, section 2022, title 13, 

California Code of Regulations) as set forth in Appendix A to 

the Initial Statement of Reasons, release.d October 24, 2003. 

Attachment B: Staff's Suggested Modifications to the Original Proposal