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June 29, 2005
OVERALL SCAQMD STAFF COMMENTS
Secret Approval
Process:
- Developed and signed in secret; no public/agency input—despite ongoing
local planning and rulemaking actions on same issues
- Approval by CARB Executive Officer, rather than policy board appointed
by Governor
- Can be amended at any time by CARB Executive Officer, without CARB
Board or Legislative oversight
Weak Substance:
Provisions are generally weak and a retreat from existing efforts in
some critical areas. Contrary to recent statements by CARB staff, most
provisions of the new MOU are within the authority of — and have already
been the subject of — state and local government regulation (e.g.
idling, visible emissions, fuels, risk assessment). The need to resort to a
voluntary agreement on these issues — particularly one with so many
provisions subject to interpretation and weak enforcement language — is
highly questionable.
Erodes Ability of Legislature, Air Districts and Cities/ Counties to Control
Pollution, and Pits Government Against Government:
- “Poison Pill” provision will undermine a host of ongoing actions. The
provision begins: . . .“Railroads shall not be required to comply with
more than one agreement, regulation, statute or other requirement to meet
the same goal of any Program Element contained in this Agreement.”
- If any state agency or political subdivision “attempts to enforce any
requirement addressing the goal of” any program element of the MOU,
railroads may unilaterally forego any related provision of new MOU,
statewide. Some potentially affected current actions:
- Port of Los Angeles No Net Increase: Fuel specs, idling controls for
interstate engines and efficiency improvements.
- Legislative Proposals: e.g. SB764 (Lowenthal) relative to
establishing rail measures.
- SCAQMD Regulation 3500: Idling and risk assessment rules.
- Any City or County requirement limiting idling (any action similar to
Massachusetts’ Reg 310 by a California entity).
- CEQA Mitigation related to idling or risk reduction or any other
measure in the new MOU.
COMMENTS ON SPECIFIC MOU PROGRAM ELEMENTS
C. PROGRAM ELEMENTS
(1-11)
1. Locomotive Idling-Reduction Program. (MOU page 2)
Summary of MOU: The goal of this element is to eliminate
non-essential locomotive idling both inside and outside of yards, by
requiring installation of locomotive anti-idling devices.
Key Issues
-
Idling is a significant
issue because locomotives idle well over 50% of the time. Installing
anti-idling devices — the goal of part of this new MOU provision —
actually saves the railroads money in fuel costs.
-
Under MOU, anti-idling
devices required only on “intrastate locomotives based in California.”[1]
-
Intrastate locomotives represent small subset of locomotives
operating in California (i.e., about 10% of all locomotives).
·
Interstate locomotive idling reduction based on new purchase
only, but retrofit
of controls is feasible and results in a cost savings to railroads.
- Limits idling to 60 minutes if no device vs. Draft SCAQMD Rule 3502
limit of 30 minutes, which is more health protective.
- Language is generally vague and is potentially subject to future
interpretation or negotiations between the parties. For example:
·
“…without risking excessive component failure…”
·
“…reduce locomotive idling by the maximum amount that is
feasible.”
·
“…Participating Railroads agree to exert their best efforts…”
·
Definition of “essential” idling is broad and subject to
interpretation (e.g., “servicing”)
- If enforced by local District staff; violation must be handed off to
CARB to assess penalty or waive it. This new procedure is contrary to the
rest of California’s air quality enforcement process.
- Action by state or local agencies — potentially even CEQA compliance
or actions enforcing current laws — allows railroads to walk away,
statewide.
- The new MOU does not preclude the reductions from anti-idling devices
(or any other provision of this MOU) to be credited towards compliance
with 1998 CARB/Railroad MOU. Such credit could eliminate NOx reduction
benefits in SCAQMD from the new MOU.
2. Early Introduction of Lower Sulfur Diesel in Locomotives. (MOU
page 5)
Summary of MOU: This element requires that use of low sulfur
on-road diesel fuel in locomotives be “maximized.” By 2006, at least 80% of
the “fuel supplied to locomotives fueled in California” must meet low sulfur
specifications.
Key Issues:
- Interstate locomotives — by far the largest contributors to locomotive
emissions in California — enter the state with fuel in their tanks that
was acquired out of state. The new MOU requires that fuels pumped into
locomotives in California be cleaner, but does not require that any
specific amount of such fuel be pumped in California.
- The only requirement is that use of low sulfur fuel in locomotives be
“maximized,” a term that is rife with potential for broad interpretation
by the railroads, and which will, to put it mildly, be difficult to
enforce.
- CARB currently has authority to require all California-dispensed fuel
to be CARB specs only, which reduces air toxics emissions (i.e., aromatic
portion).
3. Visible Emission
and Reduction and Repair Program. (MOU page 5)
Summary of MOU: The goal of this element is to establish a
statewide program to address locomotives with excessive visible emissions,
including identification, quantification, repair, and recordkeeping.
Key Issues
- Visible emissions are a key indicator that locomotives may be
improperly tuned and emitting more than necessary. Visible emissions
limits have historically been enforced against locomotives by local air
districts in California. There is a history of strong and effective
enforcement actions, including significant penalties, injunctions and
other enforcement. The new MOU includes provisions and penalties that are
significantly weaker than those applied in the SCAQMD. One must ask why,
with the history of local enforcement, was it necessary for CARB to agree
to this MOU?
- Existing air district programs do not broadly exempt start-up,
shutdown, or transitional states from visual emission requirements, as
does the MOU.
- Major step backwards from previous program implemented in South Coast
by Union Pacific in the 1990’s, which required:
Ø
Specified minimum number of weekly and monthly field
inspections.
Ø
Load tests and smoke inspections of all units authorized to
operate in District at 12-month maintenance.
Ø
Random audit inspections of some units.
Ø
Opacity meters to be used for all M12 maintenance smoke
inspections
Ø
Observed smoking locomotives to be routed for repair within
ten hours vs. MOU 96 hours.
Ø
Monthly reporting vs. MOU annual.
Ø
Higher potential penalties (MOU is major step backwards).
Ø
Compared to early 1990’s actual SCAQMD penalties of
$2,000 / $4,000 / $6,000 per citation, varying on degree of smoke and
overall compliance record, the MOU has penalties of
$400 / $800 / $1200 same engine/same year in MOU, with no regard to degree
of smoke or overall compliance record (i.e., inadequate deterrent).
CARB MOU:
Ø
Raises significant questions relative to local agency notice
of violation issuance under existing state law: Do Railroads get the option
to walk away from this portion of MOU over one issued ticket now or in the
future, anywhere in the state by a local district?
Ø
Language ill-defined, likely causing enforceability problems.
Ø
Fails to set forth enforceable program component guidelines
and confuses and/or blends the field and maintenance-yard visible emissions
evaluations that are necessary to make the program effective.
Ø
Sets goal of 99% compliance rate for visible emissions, but
contains no specific timetable or requirement to ensure meeting that goal.
4. Early Review of
Impacts of Air Emissions from Designated Yards. (MOU page 8)
Summary of MOU: This element would seek to expedite early
implementation of feasible emission mitigation measures at yards. Railroads
to “review” emissions from yards to determine “changes” to lessen locomotive
and yard equipment emissions while “maintaining ability to operate the yard
efficiently.” Railroads develop plan to reduce emissions.
Key Issues
- Meet and confer on risk reduction plan elements only.
- MOU does not contain any requirement that railroads reduce emissions
from railyards. Railroads are just to “consider” certain limited actions.
- The MOU allows the Railroads to define “feasible” mitigation measures
and does not specify a criteria for determining feasible mitigation
measures.
- The MOU does not contain a schedule to implement early mitigation
measures.
- MOU singles out “potential” use of increased buffers and efficiency
measures, but does not include commercially available technologies such as
alternative fuels or hybrid locomotives.
- Does not specify risk reduction for “covered yards” contained in
Attachment B of MOU.
- List of Designated and Covered Yards does not include LA Junction.
- Undercuts SCAQMD’s ability to exercise indirect source authority or to
require facility risk assessments under AB2588.
- MOU calls on government to potentially pay for a portion of the
mitigation under Section 6 of the MOU, whereas such grants are not allowed
for industrial facilities.
5. Assessment of
Toxic Air Contaminants from Designated California Rail Yards.
(MOU page 9)
Summary of MOU: The goal of this element is to conduct
evaluations at designated yards to identify the toxics risk to affected
communities.
Key Issues
·
Emissions inventory submittal can take a minimum of 21 to 33
months vs. Proposed SCAQMD Regulation 35, which requires an emissions
inventory within 12 months.
·
CARB will conduct Health Risk Assessment (HRA) at state
expense, rather than the facility paying as is done in every other case.
·
No schedule specified for CARB to complete HRAs for 15
railyards; preparation of HRA could take many years.
·
No risk level or risk target specified to trigger mandatory
risk reduction, as required of other facilities.
·
No risk reduction schedule for risk reduction measures is
specified.
·
MOU references that health risk assessments will be consistent
with “previous risk analyses involving railyards” (Roseville), a
methodology that is inconsistent with OEHHA Guidelines.
6. Funding of Mitigation Measure Components in the Agreement. (MOU
page 1)
Summary of MOU: The parties agree that they will work
cooperatively to seek available private and public funding sources to cover
the expense of mitigation measures specified in the agreement.
Key Issues:
- MOU implies that public funds should be used for the purchase of
anti-idling devices for Class-I Railroads. However, such devices have a
payback period of two-to-three years, due to fuel savings, and should not
receive Moyer or U.S. EPA grant funds.
- Industrial and commercial facilities are required to implement risk
reduction programs under AB2588 without public funding; railyards should
be required to do likewise for emission sources under their sole control.
7. Agreement to Evaluate Remote Sensing to Identify High-Emitting
Locomotives. (MOU page 11)
Summary of MOU: The goal of this program element is to
evaluate the feasibility of using remote-sensing technology to measure
emissions from in-use locomotives.
Key Issues:
-
MOU does not contain
equivalent provisions to those in AB1222 for a remote sensing program to
determine high-emitting locomotive.
-
MOU only commits to
“discuss implementation” if the bill is not signed into law, even though
the railroads and CARB have agreed to not oppose the bill in its current
consensus form.
8. Agreement to Evaluate Other, Medium-Term and Longer-Term
Alternatives. (MOU page 11)
Summary of MOU: U.S. EPA has commenced further rulemaking
regarding Tier 3 locomotive emission standards. It is also envisioned that
additional measures will be deemed to be feasible. The goal of this program
element is to ensure that the evaluation and implementation of feasible
mitigation measures continues expeditiously.
Key Issues:
- MOU only commits to “meet and confer” to evaluate technologies that
have been previously demonstrated and are commercially available (e.g.,
particulate filters and alternative fuels).
- There is no commitment in the MOU to use the least-polluting
technologies available today or that there will be implementation in the
future on an “expeditious” basis, as noted in the MOU.
9. Compliance Reporting. (MOU page 13)
Summary of MOU: The goal of this program element is to develop
effective compliance reporting for all program elements in the agreement.
Key Issues:
·
MOU calls for future preparation of “compliance reporting and
inspection protocols” and “sufficiency of data” provided under this
agreement, leading to vagueness in what will actually be implemented.
10. Enforcement and Penalties. (MOU page 13)
Summary of MOU: This section of the MOU establishes penalties for
violating the MOU and an administrative procedure for the railroads to
appeal penalties.
Key Issues:
- The penalties in the MOU for opacity violations are inadequate. In
1993, the railroads agreed to pay SCAQMD stipulated penalties of $6000 for a
first-time serious opacity violation. Under the MOU, the railroads would
only pay $400.
- The MOU lacks any penalties for violating the numerous administrative
requirements in the agreement, such as timely submitting reports, training
personnel, or conducting required inspections. In the 1993 agreement with
SCAQMD, the railroads agreed to pay up to $5000 per occurrence for certain
failures to inspect.
- The penalties in the MOU for failing to meet program performance
standards are too vague. The railroads are required to pay penalties only
if the violation causes a “substantial impairment” to a program
requirement. Penalties are not owed if a violation was due to “unforeseen
or uncontrollable circumstances.”
- The MOU contains provisions for a meet and confer and administrative
appeals process that the railroads can use to delay or avoid penalties for
violating program requirements.
11.
Administration (MOU page 16)
Summary of MOU: This section of the MOU contains “housekeeping
requirements,” including provisions allowing the railroads to escape
penalties and a “poison pill” provision that allows the railroads at their
sole discretion to terminate the agreement.
Key Issues:
The MOU eliminates ARBs’ ability to prosecute the failure to meet program
requirements in court —the sole authority of the courts under the MOU is to
review the decisions of an administrative appeals panel.
- The MOU eliminates ARB’s ability to seek clarification of the
agreement in court.
- There are no guarantees in the MOU that hearings before the
administrative-appeals panel will be conducted in public, that they will
follow a fair process, or that members of the panel will be free from
conflicts of interest.
- The “poison pill” grants the railroads exclusive authority to
terminate the MOU “at their sole discretion” if any federal, state, local
agency adopts or attempts to enforce any requirement addressing the goal
of an MOU program element.
- The “poison pill”
Ø
Undercuts attempts by the federal, state, or local government
to adopt new statutes or regulations or to enforce existing statutes or
regulations controlling emissions or toxic risk from locomotives.
Ø
Undercuts a fundamental principle of air-pollution control,
that local jurisdictions may enact and enforce more stringent requirements
to address local air-pollution problems.
Ø
Undercuts the ability of cities and other local jurisdictions
to reduce diesel emissions from locomotives at the ports and at other highly
impacted areas.
Ø
Creates a dangerous precedent for negotiating with other
industries operating diesel equipment in highly impacted areas.
Ø
Demonstrates that ARB was wrong when it stated that state and
local regulation was preempted, creating the need for the MOU. If ARB was
correct, there would be no need to protect the railroads by allowing them to
back out of the MOU if a state or local agency adopted or attempted to
enforce a railroad regulation.
- ARB’s enforcement of the agreement is limited to collecting penalties,
even if there is grievous harm to the environment or to public health
caused by an ongoing violation. Even in these cases, ARB cannot enforce
the provisions of the MOU by injunction or other order for specific
performance.
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