BOARD MEETING DATE: June 16, 2000 AGENDA NO. 40
Report on Potential for Requiring Low-Sulfur Diesel and Particulate Traps for Existing Diesel Vehicles and Direct Staff Concerning Methods to Require Retrofits
SYNOPSIS:
At the May 19, 2000, Board meeting, Councilman Bernson requested staff to provide a report on the potential for requiring low-sulfur diesel and particulate traps for existing diesel vehicles. This is the staff's report. The Board will also direct staff concerning whether to pursue CARB rulemaking or additional legislative authority to require retrofits.
COMMITTEE:
Not applicable
RECOMMENDED ACTION:
Receive and file this Report and direct staff regarding whether to pursue State Air Resources Board regulation or legislative authority concerning requiring particulate traps.
Barry R. Wallerstein, D.Env.
Executive Officer
Introduction
At the May 19, 2000 Board Meeting, Councilman Bernson requested staff to provide a report on the potential for the District to require existing diesel vehicles, whether or not in fleets, to use low-sulfur fuel and to install and use particulate traps. This report provides a legal analysis of the issues.
In summary, the District Board has the authority to adopt a rule to specify the content of diesel fuel manufactured for sale in the South Coast district. Such a rule is, however, subject to the approval of the California Air Resources Board ("CARB"). CARB has specific authority to require existing heavy-duty vehicles to install retrofit controls. The South Coast District's authority is limited to fleet vehicle regulation. The District may formally request CARB to adopt regulations requiring particulate traps for all heavy-duty vehicles, may seek legislation authorizing the District to impose such requirements for vehicles in the District, or may pursue both options simultaneously. Staff has drafted legislative language should the Board wish to pursue statutory authorization (see Attachment A).
ANALYSIS
I. Requiring Heavy-Duty Diesel Vehicles to Operate on Low-Sulfur Fuel
In general, CARB is given the responsibility to regulate motor vehicle fuels in California. (Health & Safety Code §43013(a)1) However, state law provides specific authority to the South Coast District to "adopt regulations that specify the composition of diesel fuel manufactured for sale in the South Coast district." (§40447.6(a)) These regulations are "subject to the approval of the state board," i.e., CARB. (§40447.6(a)) In addition, these regulations must be at least as stringent as those adopted by CARB. (Id.). The law states that the District must evaluate the safety of any fuel proposed to be required by the regulations. (Id.) Finally, the District is required to consider the effect of the regulation on emissions, public health, ambient air quality and visibility in the South Coast air basin; the technological feasibility and estimated costs and benefits of the regulations compared to other available measures; and the availability of low-emission and alternative fueled vehicles and alternative fuels." (§40447.6(b))
1 Unless otherwise specified, all section references are to the Health & Safety Code.
This statute does not specifically authorize the District to require that diesel vehicles actually operate on the low-sulfur diesel while in the District. However, we believe the law does authorize the regulation of the sale of diesel, such that only compliant diesel would be available for sale in the district. Vehicles coming into the district from other areas might be able to avoid using compliant diesel to some extent if they fuel up before entering the District. Therefore, staff is currently developing amendments to Rule 431.2 to specify diesel fuel with 15 ppm sulfur as an AQMD requirement and will present such amendments to the Board later this year.
II. Requiring Particulate Traps
In general, the Air Resources Board (CARB) is the principal agency to regulate emissions from motor vehicles in California. This authority includes the explicit ability to impose retrofit requirements on heavy-duty vehicles.
Health & Safety Code section 39002 provides in pertinent part: "The control of vehicular sources2, except as otherwise provided in this division, shall be the responsibility of the State Air Resources Board." In adopting regulations for heavy-duty diesel vehicles, CARB is charged with requiring emission reductions "to the greatest extent feasible, taking into consideration the cost of compliance." (§43701 (b)) Various manufacturers believe that particulate traps may not be effective or feasible for vehicles older than certain model years. These factors would need to be considered in any rulemaking.
In adopting such standards, we believe CARB has the legal ability, should it chose to do so, to treat motor vehicles in the South Coast differently from those in other, less polluted areas of the state. Such a rule would be supported by a rational basis in that the air pollution problem is more severe in this District than in any other part of the state. (See section 40920.5, imposing special requirements on stationary sources only in the South Coast District, and section 40402 (b), noting the role in the South Coast's "critical air pollution problems" caused by the "operation of millions of motor vehicles in the basin," as well as sections 40447.5 and 40447.6, specifically regulating vehicles and fuels differently in the South Coast District than in other parts of the state.)
However, several sections of the code also give specific authority to the District with respect to motor vehicles. Section 40447.5 authorizes the District to require fleets to purchase vehicles "capable of operating on methanol or other equivalently clean burning alternative fuel" when adding or replacing vehicles in an existing fleet. We believe that, pursuant to this section, the District may authorize limited exceptions to the requirement for clean burning alternative fuel vehicles when adding or replacing vehicles. In crafting such exemptions, the District may impose reasonable conditions upon the availability of the exemption, such as requiring retrofits where a fleet seeks an exemption from the clean alternative fuel requirement. However, existing vehicles that are already a part of a fleet are not affected by section 40447.5. Finally, this law does not authorize the District to impose any requirements on vehicles that are not part of a fleet of 15 or more. Health & Safety Code section 40919 also authorizes the District to require fleets to use substantial numbers of low-emission vehicles. However, this section is not relevant to requiring controls for diesel vehicles because the definition of low-emission vehicles in section 39037.05 excludes diesel altogether.
2 The term vehicular sources means "those sources of air contaminants emitted from motor vehicles." (§39060)
III. Options
District staff is already working on a proposed amended Rule 431.2, which would specify low-sulfur diesel fuel within the District. Staff recommends continuing with this process and seeking prompt CARB approval of any rule which is ultimately adopted by the District Board. This would not preclude also urging CARB to adopt a statewide low-sulfur diesel fuel specification.
With respect to retrofit requirements for particulate traps, if the Board wishes to pursue this issue, there are two options, or the District may pursue both options simultaneously. First, the District may formally request CARB to adopt regulations requiring heavy-duty diesel vehicles to install particulate traps "to the greatest extent feasible." (§43701(b)) Second, the District, in partnership with local government and businesses, may seek legislative authority for the District Board to adopt rules requiring the use of particulate traps in heavy-duty diesel vehicles registered within the District3. An interesting point regarding retrofit requirements is that they are not subject to the preemption provisions of the federal Clean Air Act, section 209, which applies only to standards for "new motor vehicles." Therefore, if the legislature decided to grant the District the authority to require the use of particulate traps on a retrofit basis, such requirements would not be preempted by the Clean Air Act. Staff has prepared legislative language (Attachment A) for the Board’s consideration should the Board choose to pursue this option.
As your Board is aware, particulate traps may become clogged and ineffective when used in vehicles operating on diesel that has too high a sulfur content. Also, low sulfur fuel provides some emission benefits even in the absence of particulate traps. Therefore, staff recommends that the District continue to develop and pursue the proposed low-sulfur diesel rule regardless of whether the Board chooses to pursue any option regarding a CARB rule or legislation concerning particulate traps.
3 A statewide regulation adopted by CARB for either fuel or retrofits may offer some advantages in air quality and competitiveness.
Attachment
Potential legislative language - Health & Safety Code section 40447.7
Attachment A
Proposed Language - Health & Safety Code section 40447.7
40447.7 (a) Notwithstanding any other provision of law, the south coast district board may adopt regulations that require heavy-duty diesel vehicles, registered within the south coast district, to install and utilize specified emission control equipment which has been certified by the state board.
(b) Such regulations shall provide that any significant modification of the engine necessary to meet such requirements shall be made no later than the next regularly scheduled major maintenance or overhaul of the vehicle's engine.
(c) To the extent such regulations apply to new motor vehicles, the state board shall promptly submit such regulations to the United States Environmental Protection Agency for approval pursuant to Section 209(b) of the Clean Air Act (42 U.S.C. §7543 (b)) unless it finds that such regulations are not, in the aggregate, at least as protective of public health and welfare as applicable federal standards. In the absence of such a finding by the state board, a finding by the south coast district board shall serve as the state's finding pursuant to Section 209 of the Clean Air Act.
/ / /