State of California

California Environmental Protection Agency

AIR RESOURCES BOARD

Addendum to the Final Statement of Reasons for Rulemaking 

AMENDMENTS TO THE REGULATION FOR THE STATEWIDE PORTABLE

EQUIPMENT REGISTRATION PROGRAM

Public Hearing Date: February 26, 2004

 Agenda Item No.: 04-2-3

 Addendum Prepared: June 21, 2005

I. BACKGROUND

This addendum to the Final Statement of Reasons (FSOR) describes modifications

made by the Air Resources Board (ARB or the “Board”) to amendments to the

Regulation for the Statewide Portable Equipment Registration Program (Statewide

Regulation or Statewide Program). ARB is submitting this addendum to the FSOR for

insertion in the Office of Administrative Law (OAL) File Number 05-0107-04 S. 

On January 7, 2005, ARB staff submitted the FSOR and a Final Regulation Order

amending sections 2451-2465 and repealing section 2466, title 13, California Code of

Regulations (CCR) to the OAL for review and approval. On February 25, 2005, OAL

issued a Decision of Disapproval on the proposed amendments. This addendum to the

FSOR addresses the comments made by OAL and the commenters noted below.

II. ADDITIONAL MODIFICATIONS

ARB made changes the Statewide Regulation to address the concerns raised by OAL

and the commenters mentioned below. However, in certain instances, rather than

making modifications to the proposed language, ARB has elected to remove proposed

language and thereby revert to existing regulatory text.

For instance, an apparent major concern of OAL was the discretion vested in the

Executive Officer to insure that portable equipment use comported with statewide

program requirements. This necessary oversight language was pre-existent in ARB

regulations. ARB had proposed a minor text change in an effort to clarify the provision.

However, in light of OAL's comments, ARB is removing the clarifying language and will

revert to the existing regulatory language. 

OAL comments that ARB:

 "...declined the[se] invitation[s] to clarify the description of the equipment

that this paragraph would authorize the Executive Officer to exclude from the

PERP." (Decision of Disapproval p.1)
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First and foremost, it is not the type of portable equipment that is at issue here. The

issue is more the use to which portable equipment is put. Secondly, it is simply not

possible to list every allowed or disallowed use. Portable equipment is used in very

diverse applications. Any attempt to list all applications of portable equipment would not

only make the regulation unworkable but would invariably fail.

For these reasons, ARB did not make changes addressing specific applications of

portable engines used to power equipment such as movie shoots by the motion picture

industry and in dehumidification operations, are eligible for registration in the Statewide

Program. ARB believes that the current Statewide Regulation already contains

provisions in section 2451(b) and section 2451(c) to allow these portable engines to

register in the Statewide Program. Section 2451(b) states that the Statewide

Regulation applies to portable engines as defined in 2452(z). It appears that these

engines satisfy the portable definition. However, until an application is received, ARB

simply cannot, in the abstract, make decisions on whether specific equipment can be

registered.

The following summarizes the modifications adopted by ARB:

In section 2451(c)(9), ARB adopted changes to allow registered portable engines to be

used during electrical upgrades that do not exceed sixty calendar days. In addition, the

modifications would allow portable generators used in operation where only generators

can supply the necessary voltage, frequency, and electrical current requirements to be

eligible for registration in the Statewide Program. 

In section 2452(e), ARB added a definition for "Electrical Upgrade" to mean

replacement or addition of electrical equipment and systems resulting in increased

generation, transmission, and/or distribution capacity. For enforcement of the electrical

upgrade provisions, ARB, in section 2458(e), added language to require owners and

operators of portable engines used in electrical upgrade operations to maintain daily

records, which include the location of operation, the month, date and year at the

location, and hours of operation.

As discussed above, ARB deleted proposed section 2451(c)(5), which was intended to

clarify the existing authority of the Executive Officer to determine what uses of portable

engines or equipment units require permits from the districts and would not qualify for

registration under the Statewide Program. ARB also deleted examples of portable

equipment uses that are not eligible for registration. In its place, ARB added section

2451(c)(6) through (9), which list specific uses of portable engines or equipment units

that are ineligible for registration under the Statewide Program.

ARB moved subsection 2451(c)(5)(E) back to its original place in the existing Statewide

Regulation, now renumbered as section 2451(c)(3). This provision makes the

registration of equipment units ineligible under the Statewide Program if the Executive

Officer determines that the equipment unit is part of a stationary source permitted by a

district. In addition, ARB added language in section 2451(c)(3) to preclude engines

associated with equipment units from being eligible for registration in the Statewide
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Program if the equipment unit is part of a stationary source that is required to obtain a

district permit. 

Under the current Statewide Regulation, applicants are not required to select a home

district for their portable engines or equipment units. In the 1st 15-Day Change Notice,

ARB in section 2452(k) defined “Home District” to mean the district designated by the

responsible official of the portable engine or equipment unit in which the portable

equipment operates most of the time. In response to the comment received, ARB

revised the definition of ‘Home District,” now located in section 2452(l), to mean the

district designated by the responsible official of the portable engine or equipment unit in

which portable equipment resides most of the time. 

To clarify that daily records are required only on days the portable equipment is

operated, ARB modified section 2458(b) by adding the phrase “each day of operation”. 

Section 2458(b) now reads “...including engines otherwise preempted under section

209(e), or portable equipment unit shall maintain daily records for each day of operation

of each registered portable engine and equipment unit.” The modification reduced the

burden of having to maintain daily records for days the portable equipment is idle and

not operated. 

Five sections of the amended Statewide Regulation contain language that indicates they

apply or do not apply to a person who held, or did not hold registration “prior to the

effective date of the amendments to this article.” After publication in the CCR, those

references may be confusing to the reader. To clarify this, ARB has indicated in

sections 2452(j), 2452(u), 2456(j), 2458(b)(6)(A) and 2458(b)(6)(B) that the effective

date of the amendments will be inserted by OAL. 

To clarify an obsolete reference, ARB deleted the wording in section 2451(a) that refers

back to section 2451(d).

ARB modified section 2456(d) by adding the word “shall” before the phrase “meet the

most stringent emissions standard.”

Subsection 2457(b)(3)(F) contains a small text discrepancy as compared to the current

CCR. ARB added the words in strike out text “there are” to ensure they are removed

from the regulation by the publisher.

In addition, ARB in section 2463(d) replaced the words “hearing officer” with Executive

Officer. The proposed change is being made to be consistent with the entire section

where the Executive Officer for just cause may suspend or revoke a registration for the

listed circumstances. In determining whether to grant a stay, the Executive Officer,

rather than a hearing officer, shall consider the reasonable likelihood that the

registration holder will prevail on the merits of the appeal and the harm the registration

holder will likely suffer if the stay is not granted. 
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III. PUBLIC COMMENTS AND AGENCY RESPONSES

Three comment letters were submitted during the 3rd 15-day comment period, which

began on May 6, 2005 and ended on May 21, 2005. A list of commenters is set forth

below, identifying the date and form of all comments that were submitted. Following the

list is a summary of each comment or recommendation made regarding the proposed

action, together with an explanation of how the proposed action has been changed to

accommodate the comment or recommendation or the reasons for taking no action. 

A. Responses to Comments Received During the 3rd 15-Day Comment Period

Abbreviation Commenter

 GEER Shannon S. Broome, PC

Counsel to GE Energy Rental

Written Testimony: May 21, 2005

 

 PG&E/SEM Sven Thesen

Pacific Gas and Electric Company

Bernie Orozco

Sempra Energy

Written Testimony: May 20, 2005

 SCE Michael M. Hertel

Southern California Edison

Written Testimony: May 20, 2005

Comments and Responses

1. Applicability

1.1 Comment: The commenter wants to confirm that the revisions to section

2451(c)(9) will allow the use of PERP-registered generators to provide primary or

supplemental power to a building, facility, stationary source, or stationary

equipment when voltage, frequency, or electrical current requirements can only

be supplied by a portable generator. [GEER]

Agency Response: ARB staff confirms the interpretation of the commenter

regarding the revisions to section 2451(c)(9) is correct. This includes the use of

generators for concert projects where customers may need 240-415 volts at a

frequency of 50 HZ in a 3-phase configuration and film shoots where customers

may need DC power or power at temporary locations such as an old warehouse

or airport hanger.

1.2 Comment: The commenter indicated that section 2451(b) or section 2451(c)(9)

would allow portable generators used to power portable equipment such as

dehumidification equipment to register in the Statewide Program. [GEER]
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Agency Response: ARB staff agrees that section 2451(b) and section 2451(c)(9)

applies to the eligibility of portable engines used to power equipment such as

dehumidification equipment to register in the Statewide Program. 

Note: In its Decision of Disapproval, OAL stated that the proposed rule did not

clearly authorize the use of portable engines to power portable equipment such

those used in dehumidification operations, off-site film shoots, and at concerts to

register in the Statewide Program. As stated in page 2 of the addendum, and the

Agency Reponses to Comments 1.1 and 1.2, ARB believes that engines used to

power equipment as those described above, are eligible for registration under the

current Statewide Regulation.

1.3 Comment: In section 2451(c)(9), the time limitation for electrical upgrades should

be changed from 60 to 90 days. [PG&E/SEM], [SCE]

Agency Response: No changes were made in response to this comment. In

previous comments submitted by PG&E and noted in OAL’s Decision of

Disapproval, PG&E indicated that electrical upgrades involve the use of portable

engines to supply temporary power to a building or facility for up to two days. In

addition, PG&E wanted electrical upgrades to include more complex routine and

non-routine transmission and equipment upgrades in small towns, industrial

complexes, and electrical generating or similar facilities. For this short duration

and low impact of the use, ARB modified section 2451(c)(9) to provide up to 60

days for the use of portable engines during electrical upgrade operations. 

Since electrical upgrades are planned maintenance activities, ARB believes that

it is appropriate for operators to apply in advance to the districts for necessary

permits for upgrade operations that take longer than 60 days. By applying for

permits, district staffs can evaluate and mitigate potential air quality impacts from

the use of portable engines in upgrade operations. 

Note: In response to OAL’s Decision of Disapproval, ARB added provisions for

electrical upgrade operations. 

1.4 Comment: The commenter stated that the proposed language in section

2451(c)(9) should add language that allows reasonable time for engine start-up,

shutdown, and testing during interruption of electrical power. [PG&E/SEM],

[SCE]]

Agency Response: ARB has clarified its modification of section 2451(c)(9) to

include time for engine start-up, shutdown, and testing during interruption of

electrical power; however, the time allowed for engine start-up, shutdown, and

testing is limited to the actual duration of the event or interruption. This

modification is a clarification that does not materially affect any regulatory

requirement of the amended Statewide Regulation. 

Note: In response to OAL’s Decision of Disapproval, ARB added time for engine

start-up, shutdown, and testing during interruption of power.
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1.5 Comment: Commenter requests that the recordkeeping requirement in section

2458(e) for electrical upgrades be modified so that the requirement only applies

to non-certified engines. [PG&E/SEM], [SCE]

Agency Response: ARB staff did not make changes as requested by the

commenters to modify the recordkeeping requirement in section 2458(e) for

electrical upgrades. The recordkeeping requirement contained in the Statewide

Regulation is necessary to assist the district and ARB staffs with the enforcement

of the 90-day time limitation for electrical upgrades. 

IV. CONCLUSION

ARB believes that the regulatory text has been sufficiently clarified, consistent with the

Board's directives at the hearing, and the clarification issues raised by OAL in its

Decision of Disapproval has been addressed, along with issues raised by the public

during the 15-day comment period.