BOARD MEETING STATE OF CALIFORNIA AIR RESOURCES BOARD JOE SERNA, JR. BUILDING CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY CENTRAL VALLEY AUDITORIUM, SECOND FLOOR 1001 I STREET SACRAMENTO, CALIFORNIA FRIDAY, JANUARY 27, 2006 8:30 A.M. TIFFANY C. KRAFT, CSR, RPR CERTIFIED SHORTHAND REPORTER LICENSE NUMBER 12277 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 ii APPEARANCES BOARD MEMBERS Dr. Robert Sawyer, Chairperson Ms. Dorene D'Adamo Supervisor Mark DeSaulnier Ms. Lydia H. Kennard Mr. Ronald O. Loveridge Mrs. Barbara Riordan Supervisor Barbara Patrick STAFF Mr. Tom Cackette, Chief Deputy Executive Officer Mr. Tom Jennings, Acting General Counsel Mr. Michael Scheible, Deputy Executive Officer Ms. Lynn Terry, Deputy Executive Officer Ms. Kathleen Tschogl, Ombudsman Ms. Catherine Witherspoon, Executive Officer Ms. Lori Andreoni, Board Secretary Mr. Erik White, Manager, Engineering Evaluation Section, SSD PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 iii APPEARANCES CONTINUED ALSO PRESENT Ms. Wafoa Aborashed, EJ Air Quality Coation Mr. Andrew Antwih, Mayor Antonio Villaraigosa Mr. Michael Barr, Association of American Railroads Ms. Sylvia Befancourt, East Yard Communities for Environmental Justice Dr. William Burke, SCAQMD Ms. Colleen Callahan, ALA of LA County Mr. Sam Cannon, Assemblymember Bill Maze Mr. Scott Carpenter, Railpower Mr. Chuck Cole, Pacific Merchant Shipping Mr. Dave Davies, National Railway Equipment Co. Ms. Gail Delihant, Assemblymember Aghazarian Ms. Jalene Forbis, California Short Line Railroad Association Ms. Aeron Genet, San Luis Obispo APCD Ms. Margaret Gordon, West Oakland EIP Mr. Larry Green, Sacramento AQMD Mr. Peter Greenwald, SCAQMD Ms. Cyndi Hillery, Assemblymember LaMalfa Ms. Fran Inman, Majestic Reality Mr. David Jones, City of Pasadena Mr. Tom Jordan, SJVAQMD Mr. Andrew Langley, Assemblymember Gloria Neete-McLeod PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 iv APPEARANCES CONTINUED ALSO PRESENT Mr. Peter Lawson, GE Ms. Barbara Lee, CAPCOA Mr. Chung Liu, SCAQMD Mr. Peter Lieras, SACAQMD Ms. Rachel Lopez, Modesto Avila Coalition/Home CCAES Mr. Bob Lucas, CCEEB Mr. Kirk Marckwald, California Rail Industry Mr. A.J. Napolis, CBE Ms. Janet Nguyen, Long Beach Area Chamger of Commerce Ms. Amisha Patel, California Chamber of Commerce Ms. Melissa Perrella, NRDC Councilmember Tonia Reyes Urasga, Long Beach Mr. Rogge, Cal Trade Ms. Dorothy Rothrock, California Manufacturers & Technical Association Ms. Andrea Samulon, Pacific Institute Ms. Melissa Sherman, Asthma & Allergy Foundation of America Ms. Jamie Smith, Assemblymember Barbara Matthews Mr. John Sprague, City of Rosesville Mr. Mark Stehly, BNSF Railway Mr. Anthony Tannehill, Assemblymember Haynes Ms. Julianna Thomas, Assemblymember Villines PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 v APPEARANCES CONTINUED ALSO PRESENT Ms. Lupe Valdez, Union Pacific Mr. Paul Van Dyke, Senator Soto Mr. Barry Wallerstein, SCAQMD Mr. Christopher Weaver, EF & EE PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 vi INDEX PAGE Pledge of Allegiance 1 Item 06-1-6 Chairperson Sawyer 2 Acting General Counsel Jennings 4 Chairperson Sawyer 5 Executive Officer Witherspoon 8 Staff Presentation 13 Q&A 33 Mr. Cole 46 Mr. Antwih 48 Mr. Langley 49 Mr. Cannon 51 Councilmember Urasga 51 Ms. Smith 56 Ms. Delihant 56 Mr. Tannehill 56 Ms. Hillery 57 Ms. Thomas 57 Dr. Burke 57 Mr. Greenwald 64 Dr. Liu 70 Mr. Mieras 74 Mr. Lawson 76 Mr. Carpenter 82 Mr. Davies 85 Ms. Lee 87 Mr. Green 94 Ms. Genet 95 Mr. Jones 98 Ms. Befancourt 99 Ms. Lopez 100 Ms. Samulon 102 Mr. Napolis 105 Ms. Perrella 107 Ms. Gordon 109 Ms. Aborashed 111 Mr. Weaver 113 Ms. Nguyen 115 Mr. Lucas 119 Mr. Jordan 120 Ms. Roggenkamp 121 Ms. Valdez 124 Mr. Stehly 127 Mr. Barr 130 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 vii INDEX CONTINUED PAGE Mr. Rogge 134 Ms. Rothrock 135 Ms. Callahan 136 Mr. Sprague 138 Ms. Patel 139 Ms. Forbis 140 Mr. Van Dyke 141 Ms. Sherman 144 Ms. Holmes-Gen 145 Ms. Inman 147 Dr. Wallerstein 148 Mr. Marckwald 151 Chairperson Sawyer 158 Ex Parte 162 Discussion 164 Motion 177 Vote 181 Adjournment 182 Reporter's Certificate 183 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 1 1 PROCEEDINGS 2 CHAIRPERSON SAWYER: Good morning. The January 3 27th, 2006, meeting of the Air Resources Board will now 4 come to order. 5 Will you please join me in the Pledge of 6 Allegiance. 7 (Thereupon the Pledge of Allegiance was 8 recited in unison.) 9 CHAIRPERSON SAWYER: Will the Clerk please call 10 the roll. 11 SECRETARY ANDREONI: Ms. Berg? 12 Ms. D'Adamo? 13 BOARD MEMBER D'ADAMO: Here. 14 SECRETARY ANDREONI: Supervisor DeSaulnier? 15 Dr. Gong? 16 Ms. Kennard? 17 BOARD MEMBER KENNARD: Here. 18 SECRETARY ANDREONI: Mayor Loveridge? 19 BOARD MEMBER LOVERIDGE: Here. 20 SECRETARY ANDREONI: Supervisor Patrick? 21 SUPERVISOR PATRICK: Here. 22 SECRETARY ANDREONI: Ms. Pineda? 23 Supervisor Roberts? 24 Mrs. Riordan? 25 BOARD MEMBER RIORDAN: Here. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 2 1 SECRETARY ANDREONI: Dr. Sawyer? 2 CHAIRPERSON SAWYER: Here. 3 I would like to announce that for those in the 4 audience who may need Spanish interpretation, please pick 5 up a headset at the table immediately outside the hearing 6 room, and we can provide that to you. 7 Agenda Item 06-1-6, Statewide Railroad Agreement. 8 Good morning. I would like to remind anybody in the 9 audience who would like to testify today to sign up with 10 the Clerk of the Board. Also, if you have a written 11 statement, please provide it and 30 copies when you sign 12 up to testify. 13 There is just one agenda item to be heard this 14 morning, 6-1-6, an update from the staff on the June 24th, 15 2005, Statewide Railroad Agreement. Following that item, 16 we will go to our open comment period for items not on the 17 Board's official agenda, and then to adjournment. 18 We're in a somewhat unusual situation today in 19 that I believe all parties in this room, even the 20 railroads, agree that emissions from rail operations need 21 to be reduced. The disagreement is over how best to 22 accomplish reductions for the benefit of all Californians. 23 At the end of today, we need to put our differences on how 24 behind us and continue to work at reducing emissions. 25 This item is a continuation of the October 27th, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 3 1 2005, special meeting of the Board held in El Monte. At 2 that meeting, the Board considered a staff report on the 3 Statewide Railroad Agreement, several written comments, 4 and received about seven hours of verbal testimony. 5 At the conclusion of the October meeting, the 6 Board deferred a final decision on the Statewide Agreement 7 until its meeting today. The Agreement remained in effect 8 over this three-month period and has continued to be 9 implemented as prescribed. 10 To help the Board with its deliberation and in 11 response to public testimony, the Board directed staff to 12 work with railroads to clarify the Statewide Agreement, 13 especially with respect to its impact on local air 14 districts, prior voluntary agreements, and the permitting 15 of new rail yard facilities. The Board also asked staff 16 to clarify the circumstances under which the railroads 17 might be released from their obligations for the Statewide 18 Agreement. 19 The procedural motions at the end of the October 20 27th hearing were a little bit confusing and appear not to 21 have fully comported with Roberts Rule of Order. So 22 before I go on, I'd like to ask our General Counsel, Tom 23 Jennings, to clarify exactly where the Board left off. 24 I'd also add that I was not here, of course, 25 because I was not Chair at that time. But I have gone PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 4 1 back. I've read the transcript. I had watched some of 2 the proceedings on the webcast, which is a very fine 3 service to the public, which I was at that time. And I've 4 read most of the submitted documents. So I'm not as up as 5 the rest of the Board members, but I'm pretty much up on 6 these issues. 7 Tom. 8 ACTING GENERAL COUNSEL JENNINGS: Thank you. 9 At the October 27th, 2005, meeting, Supervisor 10 Patrick made a motion to support the Agreement with 11 various directions to staff. The Board then adopted a 12 motion made by Ms. Berg that Supervisor Patrick's motion 13 be tabled until the January Board meeting. 14 We have subsequently determined that under 15 Roberts Rules of Order a motion to table may only be made 16 for an indefinite period of time and expires at the end of 17 the next scheduled meeting, in this case, our November 18 meeting. 19 We would be prepared to treat the motion as a 20 motion to postpone which can be made to a definite time. 21 But under Roberts, the postponement similarly may not run 22 past adjournment of the next meeting. 23 Accordingly, we recommend that Supervisor 24 Patrick's motion not be treated as still on the table at 25 this time. Instead, the Board should commence the item PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 5 1 with nothing on the table, recognizing that the agenda 2 notice for this meeting permits any action that could have 3 been taken at the October 27th, 2005, meeting. 4 CHAIRPERSON SAWYER: Are the Board members 5 agreeable to proceeding on that basis? 6 Good. Thank you. 7 Thank you, Mr. Jennings. 8 I want to be, as a matter of my personal 9 preference, very careful about the Board's procedures. I 10 think it's good that we follow the rules, because it will 11 provide organization through our debate. 12 Let me be clear about where we're picking up. 13 This has to do only with the deliberations today. I'm not 14 recommending we start over from the beginning of the 15 October meeting, just at the point of the deliberations so 16 that the staff presentation and the extensive public 17 testimony which is already in the record, of course, is 18 part of our considerations as well. 19 I believe it's quite proper today that the public 20 testimony focus on what's new from last time and not go 21 over all of the issues which were brought up last time. 22 It's the things that have changed in the interim that we 23 want to focus on today. And I'd ask those who are making 24 presentations to limit them to the staff presentations 25 reporting back to the Board. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 6 1 I'm very interested in the views of the people 2 who have signed up to speak this morning. I'm 3 particularly interested in how you feel about the 4 clarification document and the first six-month report 5 which we'll be receiving on the railroad MOU. If you 6 could do the added favor of putting into your own words 7 rather than reading a prepared document, that would be 8 helpful. We find that testimony of that sort is much more 9 effective in conveying your sentiments to the Board. 10 Given the high degree of public interest in this 11 item, there will be a three-minute limit for all witnesses 12 speaking today. If the Board has questions, you can 13 certainly talk a little more. We won't count that against 14 you. But your initial statement to us needs to fit within 15 the three-minute time line. I'll go over this again when 16 we get to public testimony. 17 I would like to make a few more comments before 18 turning this over to the staff. Last July, following the 19 June 24th, 2005, Statewide Agreement being signed, this 20 Board adopted procedural changes to govern any future 21 voluntary agreements between the Air Resources Board and 22 other parties. I think that was a good idea, and I want 23 to commend my colleagues for taking that action. The 24 revised procedures call for public notice, public comment, 25 and Board ratification of all future voluntary agreements PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 7 1 so that we never find ourselves in this position again. 2 The public's business needs to be done in public. 3 I feel quite strongly about that. Absolute transparency 4 is the ideal we need to strive toward in every aspect of 5 the Air Resources Board affairs. 6 We all know that we fell short of that ideal with 7 the June 24th, 2005, Statewide Railroad Agreement, which 8 is most unfortunate. That procedural misstep is 9 responsible for much of the controversy that has been 10 brought to the Board's attention. 11 The question is what, if anything, we should do 12 about that. We can't turn back the clock, and the June 13 2005 Agreement was signed before we changed the rules. 14 Our staff entered into that Agreement in good faith 15 consistent with the Air Resources Board longstanding 16 practice and with laudable intent to clean the air. 17 Results matter as well. By staff's estimation, 18 the specific idling, clean fuel, and smoky vehicle repair 19 provisions of the Statewide Agreement will achieve a 20 20 percent reduction in localized particulate emissions in 21 and around California rail yards statewide once the 22 Agreement is fully implemented. 23 But I'm interested in the views of my colleagues 24 and look forward to our deliberations. 25 Excuse me. I skipped something I wanted to say. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 8 1 We need to do more than 90 percent control of NOx 2 particulate emissions from California railroads. The 3 Memorandum of Understanding is a step toward that goal. 4 I'm interested in the views of my colleagues and how we 5 can move beyond that as well. 6 At this time, I would like to ask our Executive 7 Officer, Ms. Witherspoon, to begin the staff's 8 presentation starting with some personal comments of her 9 own. Catherine. 10 EXECUTIVE OFFICER WITHERSPOON: Thank you, Dr. 11 Sawyer. And good morning, members of the Board. 12 This is a very controversial subject, and there's 13 no shortage of reasons for that. Railroads and the 14 historical treatment of local communities are 15 controversial. Diesel emissions are controversial. The 16 dramatic increase that California is experiencing in goods 17 movement activity is controversial. The proposed 18 expansion and construction of new rail yards in Southern 19 California is controversial. And the relationship between 20 state and federal law and the exact scope of federal 21 preemption is controversial. 22 Although it doesn't seem possible, staff created 23 even more controversy in the way we attempted to thread 24 this needle and achieve near-term public health protection 25 at California rail yards. By signing a Statewide PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 9 1 Agreement with the railroads and making the provisions 2 public after the fact, we set off shock waves about the 3 lack of community involvement that are still reverberating 4 today, and I regret that very much. 5 However, I can't in good conscious agree with 6 those who would throw the Statewide Agreement away because 7 of how it came about. And I say that even recognizing 8 there may be repercussions of leaving it in place. Our 9 budget has been threatened and may be threatened once 10 again. Dr. Sawyer's Senate confirmation hearing might be 11 more difficult than it would otherwise be. And hard 12 feelings will linger if you choose to leave the Agreement 13 in place. 14 However, protecting public health is the number 15 one priority. It's all about tons, tons, tons. Nothing 16 will get better until emissions are reduced. For all of 17 our missteps, and we clearly made some, staff has forged a 18 path to make that happen. No one else has a viable 19 strategy to achieve real, timely, legally sustainable 20 emission reductions from existing railroads operations in 21 California. No one. 22 Staff's message to the Board is the same as it 23 was last October. We believe the Board should leave the 24 2005 Statewide Agreement in place and move on. We need to 25 pocket the 20 percent particulate benefit from idling PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 10 1 controls, low sulfur fuel, and rapid repair of smoking 2 locomotives, and get on with the broader issue of how to 3 achieve the next major increment of emissions control from 4 locomotives and rail yard operations. 5 The much tougher questions going forward are, 6 what do we do about the 400 ancient railroad switchers in 7 California rail yards? Should we retrofit them, convert 8 them to alternative fuel, or simply get rid of them? Who 9 will pay for that, and how much is too much? Will we ever 10 be able to retrofit existing line haul locomotives for 11 either NOx or particulate control? If not, how do we 12 accelerate their retirement beyond the Tier 2 fleet 13 average in the South Coast? How can California influence 14 the pending Tier 3 federal rulemaking for local 15 locomotives and marine vessels so U.S. EPA adopts the most 16 stringent standards that are technologically feasible? 17 Where should we invest our Carl Moyer money and other 18 funds to get the greatest possible return and public 19 health protection? 20 These are the issues we need to resolve to 21 achieve 90 percent emissions control over uncontrolled 22 baseline, which is the preliminary goal staff has set for 23 itself pending Board direction at your April meeting when 24 the comprehensive Goods Movement Emission Reduction Plan 25 will be before you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 11 1 Since last October, staff spent several weeks 2 working with the participating railroads on a document 3 clarifying key provisions of the 2005 Statewide Agreement. 4 Staff also assembled the first six-month progress report 5 called for under the Agreement based on data submitted by 6 the railroads. We will present both of those in just a 7 moment. 8 When Dr. Sawyer arrived, he asked staff where 9 does the Statewide Railroad Agreement fit into our overall 10 strategy for reducing railroad emissions? We presented 11 that information last October. But to answer the 12 Chairman's question and to refresh everyone's memory, 13 we're going to recap that discussion today. 14 We're also going to talk a bit about where the 15 Governor's infrastructure bond proposal fits in since he 16 has proposed $1 billion solely for the purpose of 17 mitigating the air quality impacts of goods movement 18 activities. If approved by the State Legislature and the 19 voters, we will have a tremendous way to accelerate the 20 retirement of the oldest dirtiest railroad equipment 21 posing the greatest risk to public health. 22 As I have talked with various stakeholders since 23 the October meeting, I am struck and disappointed by how 24 much misinformation is still out there about the Statewide 25 Railroad Agreement. Yes, the process was flawed. And PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 12 1 yes, this or that term within the Statewide Agreement 2 might be a little clearer. But people still think that 3 the Statewide Agreement will stop air districts from 4 adopting rules or enforcing the ones they have, like 5 opacity limits. It does not. 6 The South Coast Air Quality Management District 7 adopted a health risk assessment rule for rail yards after 8 the Statewide Agreement was signed, and they're proposing 9 to adopt a locomotive idling rule next Friday. Clearly, 10 the Statewide Agreement isn't stopping them. 11 People also think it will prevent the Port of 12 Los Angeles from imposing tough environmental mitigation 13 requirements on the proposed near-dock rail facilities 14 that are undergoing CEQA review right now. There is no 15 relationship between the new facility permitting and the 16 Statewide Rail Yard Agreement. CEQA review and CEQA 17 mitigation requirements are the purview of the lead agency 18 to determine. The Statewide Agreement has nothing to do 19 with that. 20 Finally, people think that the June 2005 21 Statewide Agreement will prevent the Legislature from 22 passing bills to address railroad emissions in California. 23 The Schwarzenegger Administration clearly has a preference 24 for working cooperatively with the rail industry and 25 avoiding litigation, and that preference is reflected in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 13 1 the Administration's position on pending legislation. But 2 the Legislature is a fully equal branch of government and 3 can pass whatever bills it likes. The Statewide Agreement 4 has not taken the Legislature's power away. 5 Nothing that I have said personally to these 6 stakeholders and nothing that the staff will say in this 7 presentation this morning will change the opinion of 8 people in this room. The facts have seemed to be less 9 important than the shear emotion attached to this issue. 10 But it needs to be said for the record and for the benefit 11 of the Board. 12 The staff update this morning will be provided by 13 Mr. Erik White, Manager of the Engineering Evaluation 14 Section in the Stationary Source Division. Erik. 15 (Thereupon an overhead presentation was 16 presented as follows.) 17 ENGINEERING EVALUATION SECTION MANAGER WHITE: 18 Thank you, Ms. Witherspoon. Good morning, Dr. Sawyer and 19 members of the Board. 20 --o0o-- 21 ENGINEERING EVALUATION SECTION MANAGER WHITE: In 22 today's presentation, I will present an overview of our 23 statewide strategy for reducing -- 24 CHAIRPERSON SAWYER: Excuse me. The Board 25 members asked for a copy of your statement. Do we have PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 14 1 that? I have one. 2 EXECUTIVE OFFICER WITHERSPOON: Sure. We can 3 make copies. I'm having staff make copies of something 4 else right now. 5 CHAIRPERSON SAWYER: Okay. Thank you very much. 6 Excuse me. Please continue. 7 ENGINEERING EVALUATION SECTION MANAGER WHITE: No 8 problem. Thank you. 9 In today's presentation, I will present an 10 overview of our statewide strategy for reducing emissions 11 from railroads and the 2005 ARB/Railroad Statewide 12 Agreement. I will then describe clarification to the 13 Agreement, present an update on the actions taken to 14 implement the Agreement over the last six months, and 15 discuss our next steps for moving forward. I will close 16 with a summary and our staff recommendation. 17 --o0o-- 18 ENGINEERING EVALUATION SECTION MANAGER WHITE: I 19 will begin with the review of staff's statewide strategy 20 to reduce railroad emission impacts. 21 --o0o-- 22 ENGINEERING EVALUATION SECTION MANAGER WHITE: To 23 put our effort to reduce railroad emissions in context, it 24 is important to note that the rail emission reduction 25 effort is part of the evolving statewide goods movement PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 15 1 strategy. Our goals are to reduce goods related emissions 2 to mitigate the growth in trade, achieve air quality 3 standards, and reduce neighborhood risks. This is being 4 accomplished through a mix of agreements, regulations at 5 the state and federal levels, and the use of incentive 6 programs. 7 --o0o-- 8 ENGINEERING EVALUATION SECTION MANAGER WHITE: We 9 are currently obtaining large emission reductions because 10 of the 1998 MOU between the ARB and the railroads. Over 11 the next three years, we will gain additional reductions 12 from ARB's fuel regulations, the Statewide Agreement, the 13 implementation of rules the Board approved last December 14 governing cargo handling equipment at rail yards. We are 15 also strong proponents of the next generation of 16 locomotive controls currently under development by the 17 U.S. EPA. We anticipate that following the federal 18 rulemaking, we will once again develop an agreement with 19 the railroads for accelerated locomotive turnover to speed 20 emission reductions. 21 --o0o-- 22 ENGINEERING EVALUATION SECTION MANAGER WHITE: 23 Incentive programs are an important tool in our efforts to 24 achieve additional emission reductions from railroad 25 operations, especially in light of federal preemption. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 16 1 The Carl Moyer Memorial Program is designed to provide 2 financial assistance to voluntary projects which provide 3 emission benefits not otherwise realized through 4 regulation or other requirements. In the Carl Moyer 5 Program, ARB retains about $14 million to distribute, with 6 the rest being available for grants through local air 7 districts. 8 Many potential railroad projects, especially 9 those which may provide emission benefits in and around 10 rail yards, are eligible for Carl Moyer money. Also, the 11 Governor recently announced his intention to seek approval 12 from voters for billions of dollars in bonds to address 13 infrastructure needs throughout the state over the next 14 ten years. As part of this bond money, he's earmarked 15 approximately $1 billion to address the emission impacts 16 of goods movement. We believe that some of this money 17 should be used to clean up the California switcher fleet, 18 providing substantial diesel particulate matter and oxides 19 of nitrogen emissions reduction in and around rail yards. 20 --o0o-- 21 ENGINEERING EVALUATION SECTION MANAGER WHITE: 22 Our overall goal for rail is commensurate with our goals 23 for other diesel powered sources, namely greater than a 90 24 percent emission reduction between 2000 and 2020 and 25 localized reduction in risk from diesel PM emissions. To PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 17 1 meet this goal, U.S. EPA must set the most stringent 2 possible emission standards for an entire new generation 3 of low emission locomotives. And to get these locomotives 4 into California on an expedited basis, we need to 5 negotiate an agreement with the railroads to accelerate 6 locomotive and switcher engine turnover in California in 7 the 2012 to 2020 time frame. 8 --o0o-- 9 ENGINEERING EVALUATION SECTION MANAGER WHITE: I 10 will now provide a brief overview of the Agreement. 11 --o0o-- 12 ENGINEERING EVALUATION SECTION MANAGER WHITE: 13 The Agreement contains numerous elements to reduce 14 locomotive emissions and rail yard risk. These elements 15 will provide a 20 percent reduction in diesel particulate 16 emissions in and around rail yards throughout the state. 17 The key elements of the Agreement are statewide 18 limitations on all non-essential idling and the 19 installation of anti-idling devices on interstate 20 locomotives, the use of low sulfur diesel fuel, repair 21 requirements for smoking locomotives, and new health risk 22 assessments and risk mitigation at 17 major rail yards. 23 --o0o-- 24 ENGINEERING EVALUATION SECTION MANAGER WHITE: 25 The Agreement is fully binding on the railroads with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 18 1 built-in program review elements. The Agreement provides 2 for significant penalties, up to $40,000 per month, for 3 failure to implement. And the Agreement provides for an 4 arbitration and adjudication process to resolve disputes 5 between the parties. 6 --o0o-- 7 ENGINEERING EVALUATION SECTION MANAGER WHITE: 8 The Agreement places a high priority on community 9 involvement. There are numerous opportunities for 10 communities and local air districts to work on 11 implementation, including the development of a responsive 12 reporting system for the community to report idling 13 locomotives and smoking locomotives; community involvement 14 to identify and resolve issues that are unique and 15 specific to particular rail yards and neighborhoods; and 16 opportunities for community involvement in the risk 17 assessment process, including discussions on the 18 development and findings of the risk assessments and input 19 on the identification and implementation of rail yard 20 mitigation measures. We are committed to work with the 21 railroads and local air districts in community outreach 22 efforts. 23 --o0o-- 24 ENGINEERING EVALUATION SECTION MANAGER WHITE: 25 The Agreement contains a provision which releases the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 19 1 railroads from complying with certain individual program 2 elements if more stringent federal requirements become 3 applicable or if the state or local government agency 4 adopts overlapping rules or regulations. The release 5 clause does not affect any existing or future authority, 6 any other voluntary agreements, or the rights of any 7 individual or entity. 8 --o0o-- 9 ENGINEERING EVALUATION SECTION MANAGER WHITE: I 10 will now provide a description of the clarifications of 11 the Agreement that have been developed. 12 --o0o-- 13 ENGINEERING EVALUATION SECTION MANAGER WHITE: 14 During the public review of the Agreement, a number of 15 parties who are not signatories expressed concern about 16 the meaning of the release cause. Concerns were also 17 raised about the impact of the Agreement on the exercise 18 of preexisting authority. 19 As directed by the Board, staff in consultation 20 with the railroads worked to clarify how the Agreement 21 affects a number of these concerns. This effort resulted 22 in a new clarification document, a copy of which begins on 23 page 39 of the Board book. This document provides 24 additional details and explanation regarding how the 25 release clause operates, when the release clause may be PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 20 1 triggered, and how the Agreement preserves the use of 2 preexisting state and local authority. The clarifications 3 do not modify the Agreement. 4 --o0o-- 5 ENGINEERING EVALUATION SECTION MANAGER WHITE: In 6 clarifying the use and timing of the release clause, it 7 was first important to recognize the release clause is 8 discretionary. In other words, it is not triggered 9 automatically. Instead, participating railroads have 10 reserved the option to cease performing certain 11 obligations under the Agreement on an element by element 12 basis after consultation with ARB if another state or 13 local entity adopts or attempts to enforce similar 14 actions. Under these circumstances, the railroads reserve 15 the right to opt out of this specific program element on a 16 statewide basis, or they can choose to continue to comply 17 with the program element provisions in only certain areas 18 of the state. 19 Also, the release clause may only be triggered on 20 the date that duplicative or overlapping requirements are 21 adopted or enforced and not when such requirements are 22 merely proposed or pending. 23 --o0o-- 24 ENGINEERING EVALUATION SECTION MANAGER WHITE: 25 Nothing in the Agreement affects the scope of ARB's or any PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 21 1 other state or local agency's regulatory authority 2 regarding railroad activities or California's ability to 3 enact laws regarding railroad activities. 4 While such actions may trigger the release 5 clause, they are not prohibited by the Agreement. Such 6 actions, however, may be preempted or otherwise prohibited 7 by federal law. 8 Also, nothing in the Agreement modifies or 9 terminates previous agreements reached between one or more 10 of the railroads and local air pollution control districts 11 or other entities. Similarly, nothing in the Agreement 12 prevents or inhibits the ability of a participating 13 railroad from entering into new voluntary agreements with 14 any party. 15 --o0o-- 16 ENGINEERING EVALUATION SECTION MANAGER WHITE: 17 The release clause may be triggered only under certain 18 conditions. These include adoption by ARB, local air 19 districts, or local government of a new or modified 20 regulation or ordinance that duplicates or overlaps with 21 the specific program element. Action by the U.S. EPA to 22 adopt or enforce more stringent requirements than a 23 specific program element or if the State Legislature 24 enacts and the Governor signs a self-implementing statute 25 that imposes new requirements that duplicate or overlap PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 22 1 with the specific element. 2 --o0o-- 3 ENGINEERING EVALUATION SECTION MANAGER WHITE: 4 The Agreement does not allow a participating railroad to 5 trigger the release clause because of ARB or local 6 agencies taking enforcement action under preexisting state 7 laws or voluntary agreements between the participating 8 railroads and government bodies. 9 For example, ARB may, without triggering the 10 release clause, enforce its preexisting diesel fuel 11 regulations. Similarly, the release clause would not be 12 triggered by an air district issuing violations for 13 opacity under authority provided by preexisting state law. 14 Nothing in the Agreement prevents the 15 participating railroad from entering into other voluntary 16 agreements with local governments, air districts, or ARB, 17 and such voluntary agreements may not trigger the release 18 clause. 19 I want to stress that a participating railroad 20 seeking a discretionary governmental approval in 21 compliance with CEQA, such as a permit for a new or 22 modified rail facility, does not trigger the release 23 clause. 24 --o0o-- 25 ENGINEERING EVALUATION SECTION MANAGER WHITE: PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 23 1 Because we did not reopen the Agreement for further 2 negotiations, we did not clarify every issue that's been 3 raised. However, we've gone a long way in describing what 4 the agreement does and doesn't do. 5 As I discussed, the Agreement preserves existing 6 ARB and district regulatory and enforcement authority. It 7 keeps voluntary agreements in place and allows for new 8 ones, and it does not interfere with CEQA review. 9 --o0o-- 10 ENGINEERING EVALUATION SECTION MANAGER WHITE: I 11 will now provide an update on the status of ARB's and the 12 railroads' efforts to implement the Agreement. 13 --o0o-- 14 ENGINEERING EVALUATION SECTION MANAGER WHITE: 15 Overall, all of the program requirements except one have 16 been done on schedule. Also, all data submittals have 17 come in on time. The only requirement that has not been 18 completed yet is the community meetings. In response to 19 requests from community members and local air districts, 20 some community meetings were postponed until after the 21 Board's final decision on the Agreement. It is 22 anticipated that these meetings will occur in the near 23 future and should all be completed by the end of April. 24 --o0o-- 25 ENGINEERING EVALUATION SECTION MANAGER WHITE: PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 24 1 The railroads have begun to implement the idling reduction 2 program. As part of this effort, the railroads have 3 submitted inventories of their interstate locomotive 4 fleets, developed community reporting processes for idling 5 locomotives, established training programs and materials, 6 submitted plans describing the program, and begun the 7 installation of idle reduction devices on the California 8 locomotive fleet. 9 --o0o-- 10 ENGINEERING EVALUATION SECTION MANAGER WHITE: 11 The railroads are on schedule to meet their commitments to 12 install idle reduction devices on their California fleets, 13 mainly switchers and local locomotives. The Agreement 14 requires that nearly 430 California locomotives be 15 retrofitted with idle reduction devices by June 30th, 16 2008. 17 At the time the Agreement was signed, 117 18 California locomotives had already been equipped with idle 19 reduction devices. Under the Agreement, nearly 100 more 20 each year will be equipped. By June 30th of this year, 21 over half of the California locomotives in operation will 22 be equipped. The net effect of the Agreement has been to 23 concentrate equipment-capital investment by the railroads 24 within the state. 25 --o0o-- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 25 1 ENGINEERING EVALUATION SECTION MANAGER WHITE: 2 The affects of this are evident. Because of the Agreement 3 and the railroad's commitment to focus their switcher 4 locomotive retrofit efforts in California, the rate of 5 installations to date in the state is twice that of the 6 rest of the country. 7 --o0o-- 8 ENGINEERING EVALUATION SECTION MANAGER WHITE: 9 The railroads are also on schedule to meet their 10 commitments to establish and implement the visible 11 emission reduction and repair program. To date, the 12 railroads have appointed program coordinators for the 32 13 covered yards, developed community reporting processes for 14 smoking locomotives, submitted their program plans, and 15 established training programs and materials. 16 --o0o-- 17 ENGINEERING EVALUATION SECTION MANAGER WHITE: 18 Both railroads have established employee training for the 19 idling and visible emission reduction programs. This 20 training consists of visual materials such as videos and 21 presentations as well as printed materials for use in the 22 field. An example of the materials developed is shown on 23 the slide and has been provided to you in your Board 24 materials. 25 To date, both railroads combined have trained PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 26 1 over 3,000 employees. This training effort has included 2 many railroad employee classifications, including 3 supervisory staff, dispatchers, rail yard staff and train 4 crews. The railroads have indicated that by June 30th an 5 additional 6,000 employees will have received training on 6 the provisions of the Agreement. 7 --o0o-- 8 ENGINEERING EVALUATION SECTION MANAGER WHITE: 9 Both railroads have initiated the inspections specified 10 under their visible emission reduction repair programs. 11 As you can see, in 2005, the railroads conducted over 12 16,000 visible emission inspections on the fleet. Going 13 forward, we expect the quality and quantity of these 14 inspections will increase as more railroad employees 15 receive specialized training. 16 --o0o-- 17 ENGINEERING EVALUATION SECTION MANAGER WHITE: 18 Under the Agreement, ARB is required to develop and 19 conduct an idling enforcement training program for ARB and 20 air district staff. We are in the process of developing 21 the program and expect that it will be complete in 22 February. Once our enforcement staff have completed the 23 training, we will begin to enforce the idling limits 24 specified in the Agreement. 25 --o0o-- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 27 1 ENGINEERING EVALUATION SECTION MANAGER WHITE: We 2 have held numerous meetings with local air districts, 3 including meeting with CAPCOA on January 12th to discuss 4 both the progress report and the clarification document. 5 We have been continuing our rail yards visits, 6 and have also just expanded our rail yard website to add 7 community-specific pages providing maps, physical 8 descriptions, and contact information for each covered 9 yard in the agreement. 10 --o0o-- 11 ENGINEERING EVALUATION SECTION MANAGER WHITE: 12 Each railroad has submitted early emission inventories for 13 their rail yards and identified potential mitigation 14 measures. These measures include such things as 15 relocating an operation within a rail yard, purchasing low 16 emitting locomotives for the rail yard fleet, and expanded 17 use of CARB diesel. 18 --o0o-- 19 ENGINEERING EVALUATION SECTION MANAGER WHITE: 20 While the mitigation plans required under the Agreement 21 were only recently submitted, the railroads have already 22 begun to undertake efforts to reduce the emission and risk 23 impacts of their operations, especially at rail yards. 24 Recently, new low-emission locomotives designed to replace 25 existing aged switchers have been introduced in the state. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 28 1 In late 2005, two new Green Goat diesel electric hybrid 2 locomotives were delivered to Mira Loma, replacing the 3 existing switchers that had been in operation there. 4 Eight additional Green Goats have been ordered and are 5 expected to be in Southern California this year. 6 Also, last week, Union Pacific delivered the 7 first of its kind genset locomotive to Commerce. This 8 type of locomotive, which is pictured on the slide, 9 operates on up to three lower emission 700 horsepower 10 off-road engines rather than a single large engine. This 11 design provides increased efficiency and reduces emissions 12 by more than 90 percent. Union Pacific is currently 13 seeking bids for approximately 60 additional units which 14 are expected to be deployed in Southern California between 15 now and 2008. 16 --o0o-- 17 ENGINEERING EVALUATION SECTION MANAGER WHITE: 18 Under the agreement, health risk assessments will be 19 performed at 17 designated rail yards. The risk 20 assessments will quantify the community risk associated 21 with these rail yards' activities. 22 The risk assessments will be performed following 23 guidelines prepared by ARB. The rail yard risk 24 assessments will be consistant with the risk assessment 25 guidelines published by the Office of Environmental Health PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 29 1 Hazard Assessment and a previous rail yard risk assessment 2 performed by staff. We anticipate releasing draft risk 3 assessment guidelines for public comment shortly. 4 One risk assessment for the Union Pacific rail 5 yard in Roseville has already been completed. For the 6 remaining 16 rail yards, staff and the railroads have 7 agreed to a schedule under which nine draft assessments 8 will be completed by the end of this year, and the 9 remaining seven will be completed by the end of next year. 10 --o0o-- 11 ENGINEERING EVALUATION SECTION MANAGER WHITE: 12 The technology assessment specified in the Agreement are 13 also underway. Staff and the railroads have agreed to 14 continue the switcher diesel particulate filter study. 15 This study is designed to demonstrate the retrofit of a 16 particulate filter on a typical switcher in California 17 service. The laboratory phase of this demonstration has 18 been recently completed, and two switchers will be 19 retrofitted and put into California service this year. 20 The railroads have also submitted to ARB their 21 assessment of the use of particulate filter technology in 22 Europe. This assessment looked at the use of particulate 23 filters in both new and retrofitted freight locomotives 24 operating in Switzerland. This assessment identified the 25 use of particulate filters in some locomotive PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 30 1 applications. 2 We are evaluating the railroad's findings and are 3 doing independent work of our own to determine if a 4 retrofit versus replacement strategy for existing 5 locomotives is the right path. In any event, new national 6 locomotive emission standards must be based on the use of 7 particulate filters. 8 Under the Agreement, ARB and the railroads will 9 hold technical evaluation meetings every six months. 10 These meetings are designed to provide an open forum for 11 the discussion of existing and potential technologies to 12 reduce locomotive emissions. Community members, local air 13 districts, and other interested parties will be invited to 14 attend and offer their perspectives. We anticipated 15 holding the first technology assessment meeting this 16 spring. 17 --o0o-- 18 ENGINEERING EVALUATION SECTION MANAGER WHITE: We 19 have also initiated efforts to evaluate the feasibility of 20 using track side remote sensing equipment to identify 21 gross polluting locomotives, as required under Assembly 22 Bill 1222. The kick-off meeting for AB 1222 was held on 23 January 17th. We are currently developing a draft study 24 plan to be used in the evaluation and will be releasing it 25 for comment to stakeholders shortly. We anticipate that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 31 1 testing will begin in late spring, with a report to the 2 Legislature due at the end of the year. 3 We believe there is significant potential in the 4 use of this technology, and that a successful 5 demonstration on locomotives could provide opportunities 6 to apply the technology to other significant diesel 7 sources, such as marine engines. 8 --o0o-- 9 ENGINEERING EVALUATION SECTION MANAGER WHITE: 10 Assuming that the Board decides to leave the Agreement in 11 place, we will continue our efforts to move forward in 12 implementing the Agreement. 13 --o0o-- 14 ENGINEERING EVALUATION SECTION MANAGER WHITE: 15 Staff places a high priority on ensuring meaningful 16 community involvement as we go forward. Our first 17 priority is completing the remaining local community 18 meetings this spring. The focus of these meetings will be 19 to identify local community concerns and to discuss 20 possible mitigation measures at each yard. 21 As was previously discussed, we'll be releasing 22 draft risk assessment guidelines for public comment next 23 month. We will work closely with local air districts and 24 community throughout the risk assessment process and will 25 conduct community meetings to discuss the draft findings PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 32 1 when they are available. 2 --o0o-- 3 ENGINEERING EVALUATION SECTION MANAGER WHITE: We 4 will also be continuing in our effort to implement the 5 provisions and goals of the Agreement through various 6 other activities. This includes beginning idling 7 enforcement training next month, conducting program 8 reviews, continuing our evaluation on the potential use of 9 future technologies, co-sponsoring the Faster Freight 10 Cleaner Air Conference next week in Long Beach, and 11 evaluating the strategic use of funding to reduce 12 emissions, including the use of potential bond money to 13 address rail yard emission impacts. 14 --o0o-- 15 ENGINEERING EVALUATION SECTION MANAGER WHITE: As 16 you know, we will be bringing for your consideration in 17 April a goods movement emission reduction strategy. This 18 strategy consists of a comprehensive list of measures, 19 including regulatory actions, incentive programs, 20 voluntary actions and others for ocean-going vessels, 21 locomotives, port trucks, harbor craft, and cargo handling 22 equipment. The April hearing is an important opportunity 23 for the Board to shape its overall vision and policies for 24 reducing goods movement emissions. 25 --o0o-- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 33 1 ENGINEERING EVALUATION SECTION MANAGER WHITE: I 2 will now briefly recap and present staff's recommendation. 3 --o0o-- 4 ENGINEERING EVALUATION SECTION MANAGER WHITE: In 5 summary, we have clarified the Agreement related to the 6 intent of the release clause and its impacts on state and 7 local authorities. Implementation of the Agreement is on 8 schedule to achieve the anticipated emission reductions. 9 Additionally, emission reductions are possible through 10 community participation and the implementation of 11 additional rail yard mitigation measures. And the use of 12 voter-approved bonds and other incentive funds will 13 accelerate the rates of emission and risk reductions. 14 To ensure that the emission reduction and public 15 health benefits provided by the Agreement are achieved, we 16 recommend the Board leave the Agreement in place. 17 I will now turn the presentation back to 18 Ms. Witherspoon. 19 EXECUTIVE OFFICER WITHERSPOON: I have no further 20 remarks at this time, but will just instead answer any 21 questions that you have and be prepared to answer them as 22 we go through public testimony this morning. 23 CHAIRPERSON SAWYER: Thank you. 24 Are there questions from the Board? 25 Ms. Kennard. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 34 1 BOARD MEMBER KENNARD: Thank you for the very 2 wonderful staff report. It was very clear and helpful to 3 refresh our memories. 4 I have question as to the implication should this 5 Board elect not to ratify or even suggest to staff that we 6 abandon this Agreement, what would be the next logical 7 course of action? 8 EXECUTIVE OFFICER WITHERSPOON: To start all over 9 again, with a loss in time. 10 By reaching an Agreement with the railroads, we 11 changed both their operating practices and their 12 investment decisions. And that took a lot of time both at 13 the table and with railroads working with top management 14 to redirect dollars inside the companies. 15 The first thing that would happen is I presume 16 the dollars which shift away from California. We would 17 start negotiations again with a broader number of 18 stakeholders and may or may not close on specific 19 conditions. 20 The federal rulemaking is proceeding 21 simultaneously. We and the railroads and others are 22 participants in that process. 23 I think what this Agreement offers is progress 24 before we have a new generation of locomotives. And we 25 would probably lose most of that and have to wait for the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 35 1 next major round with new locomotives coming in in 2012 2 and trying to agree with the railroads negotiating an 3 agreement for faster turnover in California. But the 4 interim steps might escape us. 5 BOARD MEMBER KENNARD: So your sense of going 6 forward without the Agreement would be that we would end 7 up with less stringent regulations, if any at all? 8 EXECUTIVE OFFICER WITHERSPOON: Well, everyone in 9 the nation wants the Green Goats. Everybody wants the 10 idling devices. Because of our Agreement, we have a 11 preferential investment in placement happening in 12 California, and that we would lose hold of. 13 BOARD MEMBER KENNARD: Thank you. 14 CHAIRPERSON SAWYER: Mayor Loveridge. 15 BOARD MEMBER LOVERIDGE: I'll defer to Dorene. 16 CHAIRPERSON SAWYER: Ms. D'Adamo. 17 BOARD MEMBER D'ADAMO: Thank you, Mayor 18 Loveridge. 19 Actually, I'd like to follow up on Ms. Kennard's 20 question. The Tier 3 standards that are being proposed 21 would not take effect until 2012. And there was a bar 22 chart on staff's presentation on turnover between now and 23 I think it was 2008. I'm wondering -- 24 EXECUTIVE OFFICER WITHERSPOON: That was just 25 idling devices in the bar chart. We didn't have the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 36 1 locomotive turnover chart. The locomotive turnover rate 2 is 40 years, 30 to 40 years. 3 BOARD MEMBER D'ADAMO: So if we did not move 4 forward, the soonest we would expect action on part of 5 this Agreement would be 2012, assuming that the federal 6 regulations are adopted? 7 EXECUTIVE OFFICER WITHERSPOON: We would retain 8 our low sulfur diesel fuel requirements that the Board 9 adopted last year for captive and state locomotives. We 10 would lose the efforts of the railroad to also fuel 11 locomotives travelling out of state with cleaner low 12 sulfur fuel. 13 We haven't negotiated additional turnover yet. 14 That's going to be part of the all-feasible measures. We 15 have turnover agreements with South Coast basin itself. 16 And that is our long-range strategy for railroads. 17 What we would lose is the preferential rate of 18 idling devices being installed in California and the 19 preferential placement of clean switchers which are the 20 captive in-yard locomotives that push the trains together. 21 BOARD MEMBER D'ADAMO: And on the accelerated 22 turnover, would that be along the lines of an MOU, or 23 would we be waiting for Tier 3? 24 EXECUTIVE OFFICER WITHERSPOON: It would be along 25 the lines of an MOU. We can't compel accelerated PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 37 1 turnover, we don't think. 2 BOARD MEMBER D'ADAMO: Thank you. 3 CHAIRPERSON SAWYER: Mayor Loveridge. 4 BOARD MEMBER LOVERIDGE: Several questions. 5 First, I think we've come a long distance from 6 ten years ago to where we are now. And I look forward to 7 April and the goods movement and appreciate the staff's 8 involvement which I think may be the most important 9 transportation initiative in Southern California which is 10 taking form. I'm not sure we want to talk about the 11 worst-case scenarios if the MOU went away. 12 Let me ask three questions, if I can. One, what 13 are Green Goats? I'm never quite sure. Where does that 14 term come from? 15 DEPUTY EXECUTIVE OFFICER SCHEIBLE: A Green Goat 16 is a hybrid locomotive that has a very small diesel engine 17 and a lot of batteries. The diesel engine runs to charge 18 the batteries, and the battery moves the locomotive 19 around. And you have much lower emissions than in a 20 traditional locomotive. 21 The problem is that they are relatively low 22 horsepower and have limited service applications. So in 23 yards where they don't have to move a lot of cars for long 24 periods of time, they are very attractive from an 25 operational and emission standpoint. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 38 1 BOARD MEMBER LOVERIDGE: Where did the name come 2 from? 3 DEPUTY EXECUTIVE OFFICER SCHEIBLE: I imagine 4 "green" is a good marketing term if you're trying to be 5 environmentally sound or make money. It works both ways. 6 EXECUTIVE OFFICER WITHERSPOON: We told them they 7 needed a different name. 8 BOARD MEMBER RIORDAN: You remember it, though. 9 See. 10 BOARD MEMBER LOVERIDGE: Second, this is just a 11 question of how we proceeded and the clarifications. I'm 12 sort of used to CEQA kind of documents where everybody who 13 asks a question, there is some sort of question, response, 14 question, response. I know from the South Coast there was 15 a very detailed letter identifying what were ambiguities 16 or uncertainties, and I have not seen come back the kind 17 of Q and A response, which is sort of a customary often 18 way to respond to questions. And I guess I would ask what 19 happened to that. 20 EXECUTIVE OFFICER WITHERSPOON: Well, Mayor 21 Loveridge, our initial reaction to the December 6 letter 22 from the district is that a lot of what they were asking 23 us to fix was within the body of the Agreement itself. 24 And we had already passed the juncture at which 25 renegotiation was possible. So we continued our work on PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 39 1 the clarification document supplemental to the Agreement 2 and then briefed the district and other local air 3 districts on the outcome. 4 We did respond in general to the district's 5 letter a couple of days ago. And after we heard your 6 comment relating through the Chairman, staff has prepared 7 a point by point response. And at the appropriate time, 8 would be happy to hand that out both to you, other Board 9 members, and we have a pile of 100 for members in the 10 audience. Would you like us to do that at this moment? 11 BOARD MEMBER LOVERIDGE: Sure. 12 EXECUTIVE OFFICER WITHERSPOON: Okay. Who's got 13 the pile of documents? Janet, you're on. 14 BOARD MEMBER LOVERIDGE: The third -- and this 15 really would be helpful to me in the discussion of what a 16 release clause means and doesn't mean -- which is you 17 identified, Catherine, that on Friday the South Coast 18 district is taking up an idling rule. Can, will, would, 19 may, possible, what's the relationship between the 20 district's idling rule and release clause? 21 EXECUTIVE OFFICER WITHERSPOON: What I was trying 22 to say in my opening remarks is that the existence of the 23 MOU does not stop the district from taking action. 24 However, a consequence of South Coast adopting the idling 25 rule might be after you do that that the railroads opt out PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 40 1 of the idling provisions of the Statewide Agreement. And 2 that is up to them. They are required to consult with us 3 before they elect to leave any obligation in the 4 Agreement. They may elect to do so partially and say, "We 5 will abide by the South Coast rule in the South Coast and 6 the MOU in the rest of the state," or, "We find this so 7 confounding because we're training our crews and they move 8 around that we can only live by one set of idling rules 9 and choose yours over ours." They may choose to sue the 10 district over federal preemption. All of those things are 11 possible. 12 They have not served us with notice to quit the 13 health risk assessment provisions of our MOU on the heals 14 of the district's adoption. I do think idling is more 15 problematic for them because of how far it penetrates into 16 rail yard operations and what message they have to 17 communicate to their employees. 18 BOARD MEMBER LOVERIDGE: By railroads, we're 19 talking about both, any company? 20 EXECUTIVE OFFICER WITHERSPOON: Our Agreement is 21 only with Union Pacific and Burlington Northern Santa Fe, 22 or BNSF as they call themselves now. 23 Does that help? 24 DEPUTY EXECUTIVE OFFICER SCHEIBLE: I think in 25 summary the release clause puts the Agreement in jeopardy PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 41 1 but doesn't prevent other parties from taking action. So 2 that's -- 3 EXECUTIVE OFFICER WITHERSPOON: We lose, not the 4 district. 5 DEPUTY EXECUTIVE OFFICER SCHEIBLE: And, 6 obviously, we believe that there are many, many benefits 7 statewide that we want to keep. And we will encourage the 8 railroad, if local actions allow them to exercise the 9 release clause, not to do so. And if they do so, in the 10 most narrow limited way possible. 11 EXECUTIVE OFFICER WITHERSPOON: But that's up to 12 them. 13 CHAIRPERSON SAWYER: I have a question. Is it 14 possible to quantify the emissions reductions which you 15 anticipate from the MOU and other actions which we're 16 taking either in rail yards or statewide? 17 DEPUTY EXECUTIVE OFFICER SCHEIBLE: Yes, it is, 18 and we've done so. And we've prepared a little chart on 19 that if we can get that up. 20 --o0o-- 21 DEPUTY EXECUTIVE OFFICER SCHEIBLE: When we met 22 in October, we were anticipating doing some things by the 23 Board, which is adopting the cargo handling equipment rule 24 in December. We were preparing the overall Goods Movement 25 Plan, and we were getting information from the railroads PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 42 1 as part of the risk assessment process to prioritize risk 2 assessments. And we weren't really able to do what we did 3 recently back then. 4 What this chart shows is we've taken a large rail 5 yard complex, that around Commerce, and given the 6 information from the railroad's submittal to us, we've 7 been able to quantify in an approximate way the emissions 8 currently from five categories; thru trains, switch 9 locomotives, refueling, cargo handling equipment, and 10 container trucks. Currently, that adds up to about 60 11 tons a day. 12 We then have gone in and looked at what kind of 13 reductions are going to occur between now and 2010 based 14 on principally things that this Board has adopted and 15 agreed to already: The combination of our diesel fuel 16 rule; the 1998 voluntary agreement with the railroads; the 17 2005 voluntary agreement; and the ARB cargo handling rule. 18 We've also in this put in the contribution from 19 trucks that are going to and from these facilities and 20 shown the reduction we hope to get through bond funding. 21 When you add that all together, you get thru 22 trains reduced by half by 2010 by the 1998 MOU. Switch 23 locomotives should be reduced by 90 percent through a 24 combination of a 1998 MOU that makes them be reduced by at 25 least 50 percent. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 43 1 The CARB diesel rule, the idling reductions, and 2 then what we believe and the railroads have told us will 3 be their intent in implementing the '05 MOU is to 4 introduce those clean switchers that they now are buying 5 or have on order. 6 The locomotive refueling will go down by 75 7 percent as a combination of the locomotives are cleaner 8 and now have idling devices on them. 9 The cargo equipment rule gets a 60 percent 10 reduction in the next five years, because of the rule that 11 this Board adopted in December. By 2015, that will be 12 closer to a 90 percent reduction. 13 And the trucks we believe can be retrofitted with 14 particulate filters given a funding source and should get 15 90 percent reduction. If we did nothing, they would still 16 get about a 35 percent reduction. 17 So you can see that the strategy that the ARB has 18 embarked on to reduce emissions from goods movement is 19 going to pay vast benefits to those places now impacted by 20 rail yard and associated emissions, a total by 2010 of 40 21 tons reduced out of 60, about two-thirds reduction. And 22 if you go out another five years, that number gets very 23 close to 90 percent. 24 So we're quite -- I mean, we tried to put the 20 25 percent emission reduction from this MOU and the risk PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 44 1 reduction strategies are very, very important. But they 2 are combined with many other efforts that we're taking to 3 make dramatic decreases in emissions. This doesn't mean 4 we'll stop here. The risks are going to be too high, just 5 as they are every place where there's lots of diesel 6 engines. And our eventual goal is to get well beyond 7 90 percent control for all of the sources that are there. 8 CHAIRPERSON SAWYER: Thank you. 9 Are there any other questions from Board members? 10 Ms. Kennard. 11 BOARD MEMBER KENNARD: I'm just want to make sure 12 I'm very clear on the release clause. In the event a 13 local district should adopt another Agreement for rail 14 yards, does that release the railroads with respect to the 15 entirety of the state on that particular element? 16 EXECUTIVE OFFICER WITHERSPOON: If it's a 17 voluntary agreement, there's no effect on the release 18 clause whatsoever. It is when local entities regulate and 19 impose mandatory requirements on railroads that they may 20 invoke release from what they agreed to do with us. 21 BOARD MEMBER KENNARD: And so that would affect 22 the entirety of the state? 23 EXECUTIVE OFFICER WITHERSPOON: It can, yes. 24 It's up to the railroads. As Mr. Scheible indicated, we 25 would urge the railroads not to do that. But if they PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 45 1 found it untenable to do both, they might. 2 BOARD MEMBER KENNARD: Thank you. 3 DEPUTY EXECUTIVE OFFICER SCHEIBLE: I think I 4 said tons per day. And I meant tons per year for those 5 numbers. And those are all PM numbers. And we'll get 6 fairly similar reductions for NOx also, but that's more of 7 a regional problem as opposed to a local community 8 problem. 9 CHAIRPERSON SAWYER: Thank you very much. 10 We'll now move to the public testimony. We have 11 a lot of people who want to speak. I would say we have a 12 strong preference that organizations that are presenting 13 their testimony in pieces, that is, with several 14 representatives, that you put it all together in one block 15 so that we can understand the total message. 16 If you're not signed up, please do so. And we 17 will try to accommodate people who may have travel 18 problems, so please let us know about that if you need to 19 be moved up on the schedule because you won't be able to 20 stay with us. 21 And as is our practice, we're going to stick by 22 the three-minute rule. This will be displayed at the 23 podium. So please prepare your time to be within the 24 three minutes. Less is better. 25 And also I'll try to give a list in advance of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 46 1 who will be speaking. And please come forward and sit in 2 the front of the auditorium so we don't to have wait for 3 you to come from the back. 4 We're going to start with Chuck Cole, then 5 followed by Tonia Urasga, and then Andrew Antwih. So if 6 those three people would come forward. And we'll first 7 hear from Chuck Cole of the Pacific Merchant Shipping. 8 ACTING GENERAL COUNSEL JENNINGS: Dr. Sawyer, if 9 I could make a very quick announcement. 10 We contracted to have translation services here 11 available to members of the public who needed Spanish 12 translation. We haven't been asked for their services 13 from any member of the public so far. It is something 14 that we pay for by the hour. If anybody would like to 15 have those people remain for the rest of the day, please 16 go to the hallway outside, and we will provide for that. 17 Otherwise, we'll have the people leaving at some point 18 pretty soon. 19 EXECUTIVE OFFICER WITHERSPOON: Tom, can you ask 20 the translator to make that announcement in Spanish? 21 (Thereupon the announcement was translated 22 into Spanish.) 23 CHAIRPERSON SAWYER: Thank you. 24 Mr. Cole. 25 MR. COLE: Dr. Sawyer, members of the Board, good PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 47 1 morning. Thank you for the opportunity to be able to 2 provide testimony on this very important issue. 3 My name is Chuck Cole, and I'm here today to 4 represent the Pacific Merchants Shipping Association. The 5 Association represents the shipping alliance and terminal 6 operators that bring in about 90 percent of the cargo 7 that's containerized to the west coast of the 8 United States. 9 I'm here to support your actions that would 10 permit leaving the rail MOU in place. The clarifications 11 that your staff has proposed provide what we think is very 12 clear explanations of how the implementation of the MOU 13 will work. We want to be sure that the MOU process 14 remains an arrow in the quiver of the CARB staff, who's 15 always done an exceptional job of protecting public 16 health. 17 Your staff should have the MOU process available 18 to them so that when there are opportunities to enter into 19 voluntary agreements that will achieve emission benefits 20 sooner than they otherwise would have done without 21 regulation, without legislation, and certainly without 22 litigation, this would be available to them. 23 So again we are here to support the MOU process 24 and the staff's clarification of the current rail MOU. 25 And we urge you to continue its implementation. Thank PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 48 1 you. 2 CHAIRPERSON SAWYER: Thank you very much. 3 Counselmember Urasga, not here. 4 Andrew Antwih representing the Mayor of 5 Los Angeles. 6 MR. ANTWIH: Thank you. And good morning, 7 Mr. Chairman and members of the Board. My name is Andrew 8 Antwih. I'm here on behalf of Mayor Antonio Villaraigosa. 9 I was sent here today to raise our concerns about 10 the process that led to the MOU between the ARB and the 11 railroads. I want to take a second to acknowledge the 12 good intentions of this Agreement and also acknowledge the 13 comments by the Chair and staff about the flaws that were 14 acknowledged and how this Agreement was ratified. And I 15 want to just take a second to talk about the Mayor's 16 concerns and his request that any agreement really be open 17 to the public and provide for public participation. 18 Just to reiterate, we'd like to have any 19 Agreement provide for public participation. And once 20 again, the goal is well intentioned, but the impact is so 21 great on people's lives, as you well know are at sake. So 22 we'd love to have public participation. And the Mayor 23 just wanted to voice that. 24 Thank you. 25 CHAIRPERSON SAWYER: Fine. Thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 49 1 We certainly are in agreement with the last point. 2 The next three, Andrew Langley, Sam Cannon, Jamie 3 Smith. 4 Andrew Langley. 5 MR. LANGLEY: Good morning, Mr. Chair, Board 6 members. My name is Andrew Langley. I'm going to be 7 reading a letter on behalf of Assemblywoman Gloria 8 Neget-McLeod who was unfortunately unable to attend the 9 meeting this morning. 10 "Dear Chairman Sawyer, this is the second 11 time I write to you regarding the MOU between the 12 Air Resources Board and the BNSF and UP railways. 13 I remain concerned that critical issues relating 14 to this MOU are still outstanding and still in 15 need of resolution. Stakeholders still lack 16 answers and clarification on critical issues 17 including idling reductions, emission controls, 18 rail yard risk assessments, and even basic 19 enforceability of this Agreement. These 20 questions persist despite the CARB releasing its 21 status report on the implementation of the 2005 22 ARB/Railroad Statewide Agreement adopted on the 23 13th of this month. 24 "As comment on this MOU is unfortunately 25 limited for this hearing, I will simply focus on PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 50 1 what I have previously commented in writing in 2 your October 27 meeting in El Monte. Your 3 clarification of release attachment to the 4 January 13th report attempts to elucidate the 5 railroad release language, and I commend the 6 Board for addressing this particular concern. 7 Unfortunately, it does not address the other 8 problem that many have with this portion of the 9 MOU. Myself and countless others are troubled 10 that the release clause is triggered so easily. 11 It is easy to imagine that a local air district, 12 the U.S. EPA, the State Legislature, or the 13 Governor might enact or modify a regulation, a 14 mechanism, requirement, ordinance, or statute 15 that would trigger release from this Agreement. 16 "Speaking from five years' experience in the 17 State Legislature, I can all but guarantee 18 release would be triggered sooner rather than 19 later. For this reason and for those referenced 20 above, this MOU needs more deliberation and 21 consensus. 22 "I ask that you withhold approval of this 23 Agreement until these outstanding issues are 24 resolved through continued community outreach, 25 public debate, and mutual concession. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 51 1 "Thank you for your consideration. 2 Respectfully, Assemblywoman Gloria Negete-McLeod, 3 61st Assembly District." 4 Thank you. 5 CHAIRPERSON SAWYER: Thank you very much. 6 Is Counselmember Urasga here? 7 Sam Cannon, please. 8 MR. CANNON: Good morning, Mr. Chair and members. 9 I'm here on behalf of Assemblyman -- I'm Sam Cannon. I'm 10 here on behalf of Assemblyman Bill Maze, who represents 11 Tulare, Kern, Inyo, and San Bernardino Counties, who 12 cannot be here today. And he has asked me to support -- 13 rather to indicate his support for the MOU. Thank you. 14 CHAIRPERSON SAWYER: Thank you very much for 15 being so brief also. 16 COUNCILMEMBER URASGA: Councilmember Tonia Reyes 17 Urasga. I believe that's what you said. I wasn't sure. 18 Good morning, Chairman. I'm Counselwoman Tonia 19 Reyes Urasga from the city of Long Beach 7th District. 20 And as Chair of the Transportation and Construction 21 Committee and on behalf of the City of Long Beach, I thank 22 you for this opportunity. 23 The area I represent is immediately adjacent to 24 the existing Union Pacific intermodal transfer facility 25 and the proposed Burlington Northern Santa Fe facilities, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 52 1 multiple oil refineries, several freeways, and the ports 2 of L.A. and Long Beach literally in our backyard. 3 For many of my district and in the city, we are 4 at the front line in the battle for clean air, while we 5 may be the first casualties and the first victims of being 6 at ground zero of a massive goods movement chain whose 7 harmful affects have still not been measured and the 8 mitigation costs compiled. We understand that the 9 collateral damage reaches far beyond our city's 10 boundaries. This is why I'm here to comment on the status 11 report on the implementation of the '05 ARB/Railroad 12 Statewide Agreement. 13 The Air Resources Board decided not to take 14 action to either ratify or rescind the agreement and has 15 continued its consideration to this meeting. But 16 according to your staff, this left the Agreement in effect 17 in the interim. And according to ARB staff, the railroads 18 and ARB have continued to implement the Agreement that has 19 yet to be ratified, clarified, or explained to the 20 satisfaction of my community. 21 The Agreement asks that the railroads meet with 22 community members to identify measures to reduce the 23 impacts of rail yard emissions on adjacent residential 24 neighborhoods. These are to have been completed by 25 November of '05, but I notice the time line has been moved PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 53 1 to the end of April. To date, no meeting has taken place 2 at UPICTF, and none has been planned or scheduled to my 3 knowledge. 4 In addition, the requirement for a health risk 5 assessment has UPICTF at a proposed completion date for 6 the end of '07. All this for a facility that's been there 7 for over 15 years. I'm always weary of agreements that 8 mandate community involvement, especially when there is 9 virtually none at this point. 10 I'm very concerned about the idling exemptions 11 and the fact the limit to non-essential idling, the 60 12 minutes, just amazes me. If you have ever lived near one 13 of these facilities in the homes which are less than 100 14 feet away, they are already exposed to 24 hours of noise, 15 light, flooding, and poor air quality. 16 The area is already in an extreme non-attainment 17 area for ozone and non -- the light's flashing -- other 18 non-daily toxic pollutants such as diesel particulate 19 matter. And it's already in violation of air quality 20 standards, especially around the seven schools and over 21 900 homes in the area. The residents east of Wilmington 22 and west Long Beach are in the front lines and the first 23 casualties of the diesel death zone. 24 I have additional concerns regarding visible 25 emission reduction problems, but there are major concerns PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 54 1 about the establishment of a community compliant process 2 for idling and smoking locomotives, especially in the 3 absence of community meetings. It appears that many of 4 the requirements will be developed in a vacuum without 5 community impact and review. I'm especially interested in 6 the more detailed plan for potential additional mitigation 7 measures which are not fully explored in this MOU. 8 And I'm in full agreement with the South Coast 9 Air Quality Management District's concern over the 10 ambiguities in the release clause. As Dr. Berg, the 11 Chairman, states, the report does not provide 12 clarification as to the ambiguities in the ARB/Railroad 13 Agreement. AQMD's commitment and community outreach 14 efforts reflect the commitment to protecting the health 15 and safety of the community by working with the affected 16 communities. This is in stark contrast to other regional 17 and state organizations -- 18 CHAIRPERSON SAWYER: Excuse me. Could you 19 conclude your remarks? 20 COUNCILMEBER URASGA: This is the last sentence. 21 The need for relaxed rules in the name of the 22 greater good. Clean air is the greater good. It's time 23 that we recognize that environmental justice is not a 24 matter of cost benefit analysis and that the impacted 25 communities have suffered far too long. And the railroads PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 55 1 and other goods movement related businesses could not 2 begin to compensate us for the daily tole on our lives. 3 Thank you. 4 CHAIRPERSON SAWYER: Thank you very much. 5 And I think we have questions, please. And I 6 apologize for putting the pressure on with the orange 7 lights and the red lights. But thank you so much for 8 responding. 9 Mayor Loveridge. 10 BOARD MEMBER LOVERIDGE: Just want to underscore 11 the importance of Long Beach as sort of the injury point 12 of goods movement. And is this the position of not only 13 yourself but also of the full city? 14 COUNCILMEMBER URASGA: Yes. The City Council has 15 taken a position in opposition to CARB's MOU with the 16 railroads. And that was I believe back in the fall. It 17 was presented in the October meeting, and I'm here to 18 reiterate. 19 BOARD MEMBER LOVERIDGE: Thank you. 20 CHAIRPERSON SAWYER: Could staff respond to the 21 issue of failing to meet with the community when we said 22 we were going to; is that correct? 23 EXECUTIVE OFFICER WITHERSPOON: The MOU called 24 for meetings in all communities in October. But in light 25 of the controversy over the MOU itself, some community PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 56 1 members refused to meet with us until the Board had heard 2 and decided on the MOU. And we also thought better of 3 some of the meetings until we put that major decision 4 behind us. All of the meetings will be scheduled and 5 completed this spring. 6 CHAIRPERSON SAWYER: Thank you. 7 Next is Jamie Smith. And following that will be 8 Gail Delihant, Anthony Tannehill, and Cyndi Hillery. 9 MS. SMITH: Good morning, Chair and members. I'm 10 here representing Assemblymember Barbara Matthews from 11 District 17, and she is in support of these MOUs. Thank 12 you. 13 CHAIRPERSON SAWYER: Thank you. 14 Gail Delihant. 15 MS. DELIHANT: Yes. I'm Gail Delihant. I 16 represent Assemblyman Greg Aghazarian who represents the 17 26th Assembly District. We have the Port of Stockton in 18 our district. And this MOU is important to us, and he 19 would like you to know he supports it. 20 CHAIRPERSON SAWYER: Thank you. 21 Anthony Tannehill. 22 MR. TANNEHILL: Thank you. Good morning, 23 Chairman, members. I'm here on behalf of Assemblymember 24 Ray Haynes who represents Riverside and San Diego 25 Counties. And he's in support of implementing the current PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 57 1 MOU. 2 CHAIRPERSON SAWYER: Thank you. 3 Following Cyndi Hillery will be Julianna Thomas, 4 Dr. Burke, and Peter Greenwald. 5 MS. HILLERY: Hi. Cyndi Hillery representing 6 Assemblyman Doug LaMalfa. I'm not going to list all nine 7 counties he covers. It's District 2. And he is in strong 8 support of the existing MOU as it stands. Thank you very 9 much. 10 BOARD MEMBER RIORDAN: Excuse me, Mr. Chairman. 11 What is the general area that we're -- 12 MS. HILLERY: Oh, northern/central California. 13 BOARD MEMBER RIORDAN: Thank you. 14 BOARD MEMBER LOVERIDGE: The numbers are helpful 15 to members of the Assembly and the Senate. But for 16 outsiders, we don't know them. 17 MS. THOMAS: Good morning, Chair and members. My 18 name is Julianna Thomas. I'm here on behalf of 19 Assemblyman Mike Villines who represents Fresno, Clovis, 20 and Madera. And he is in support of this MOU. 21 CHAIRPERSON SAWYER: Thank you very much. 22 Dr. Burke. 23 DR. BURKE: My name is Bill Burke, and I'm a 24 member of the South Coast Air Quality Management Board. 25 And I have consolidated my comments here to make sure that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 58 1 I fall within the three minutes, because I know I usually 2 go on for about 20 and earned the name here when I was 3 serving on this Board as the anti-Christ from Southern 4 California. 5 I think this is probably the most controversial 6 issue that I've faced in my 12 years serving in an air 7 quality capacity. And I think that it's probably going to 8 set a tone unlike any other issue which has come before 9 you in that duration. So I put together just a few things 10 here. I know most of them have been covered by comments 11 back and forth on staff and other people. But I think 12 it's important that you get our prospective. 13 This Agreement obviously is pitting government 14 agency against government agency, and it's just not 15 acceptable. Our jobs are to complement each other and to 16 get the job done. And to find ourselves in a situation 17 where there's such misunderstanding and ill will between 18 agencies I just personally find disheartening. 19 If you think I'm mischaracterizing the situation 20 of not being clear, let me consider the statement of your 21 own attorney, Mr. Terris, at the October hearing. He 22 said that the railroads agreed to perform specific 23 obligations in exchange for ARB's agreeing on the 24 statewide program that would avoid the railroads from 25 being confronted with a potential patchwork of local PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 59 1 regulations. In other words, your staff decided to 2 support the railroads' intent of using the MOU and its 3 termination clause to undercut and kill several AQMD 4 drafted regulations which were known by the railroads and 5 your staff. These Agreements also served to undercut the 6 Port of Los Angeles and others. 7 And this triggering mechanism that we're talking 8 about, everybody is speculating whether it will or will 9 not be triggered. Well, I assume if next Friday a 10 regulation is coming up before AQMD and it's passed, what 11 we're talking about here is a week to find out what's 12 really going to happen. And that's exactly I think what's 13 going to happen. 14 Also, the release clause such as the one 15 contained in the railroad MOU creates a spiderweb that 16 will harm all of our programs, including yours. For 17 example, the day after initial hearing on the MOU, your 18 staff received a notice of termination regarding the South 19 Coast Ground Service Equipment MOU executed with the 20 airline industry. Specifically, in that case, your own 21 rulemaking for portable diesel engines allowed the 22 industry to walk away from significant emission reductions 23 and would provide a near-term air quality benefit and are 24 included in the South Coast 2003 AQMP. 25 Now, I have several others, but I see the red PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 60 1 light is blinking, so I'm not going to exceed my time. 2 But I just think that this issue really needs your thought 3 and consideration and review. I know it was made by 4 mortals, and it's a document which has foibles of human 5 frailty, but I think it can be improved. I know that you 6 sitting on the dias have the ability to do that. 7 Thank you very much. 8 CHAIRPERSON SAWYER: Thank you very much, Dr. 9 Burke. 10 Are there any questions? Mayor Loveridge. He 11 wants to defer to Ms. D'Adamo. 12 BOARD MEMBER D'ADAMO: Thank you, Mayor. 13 Dr. Burke, appreciate your perspective and just 14 wanted to say it's good to see you again. 15 DR. BURKE: It's nice to see you, too. 16 CHAIRPERSON SAWYER: Mayor Loveridge. 17 BOARD MEMBER LOVERIDGE: Bill, you're not simply 18 a member of the Board. You're the Chair and have done an 19 outstanding job as Chair. What is the official position 20 of the South Coast District regarding what's before us 21 today? 22 DR. BURKE: We're opposed to this MOU absolutely. 23 And you could ask me another question, and I can get in my 24 answer. 25 But six years ago, the Executive Director of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 61 1 South Coast and myself went back to meet with the Chairman 2 of the Board of General Motors Corporation, which as you 3 know is one of the last manufacturers of clean diesel 4 locomotives. And we had given them millions of dollars 5 from South Coast to perform research in this area. And 6 they had completed this research and developed an engine 7 which they felt would run in a manner in which would 8 really reduce emissions significantly. And we were called 9 back there to be told that they were not going to release 10 this information to the public, even though they had it, 11 even though we paid for it. 12 And so as Dr. Wallerstein might testify, I got up 13 and walked out of the meeting and said, "Well, you know, 14 you can say that, but you'll meet my lawyers." Now they 15 thought we would never sue them, but we did sue them. And 16 we never even got to court. We just had the papers drawn, 17 and it was amazing how cooperative they became. 18 But my experience with the locomotive and 19 railroad manufacturers and operators has not been a 20 pleasant one in my tenure. Thank you very much. 21 SUPERVISOR DeSAULNIER: Mr. Chairman. 22 CHAIRPERSON SAWYER: Supervisor DeSaulnier. 23 SUPERVISOR DeSAULNIER: Dr. Burke, this is fun 24 watching you walk back and forth. 25 DR. BURKE: And you like it most. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 62 1 SUPERVISOR DeSAULNIER: Actually, I never 2 perceived you as the anti-Christ. I enjoyed serving with 3 you. 4 How are the Lakers doing, by the way? 5 DR. BURKE: Wait. Wait. Wait. 6 SUPERVISOR DeSAULNIER: I just had to do that. 7 DR. BURKE: I was there when he scored 81. 8 SUPERVISOR DeSAULNIER: I had to say that in 9 memory of Matt. 10 I just wanted to maybe play out particularly in 11 regards to our staff's comments about the release trigger. 12 If the Board were to go ahead and not take an action today 13 and accept the MOU, not rescind it, next Friday your Board 14 took an action, then let's assume the railroad goes ahead 15 and initiates their release trigger. I wanted to ask this 16 while Dr. Burke was here so he could respond. Catherine, 17 what happens next? 18 EXECUTIVE OFFICER WITHERSPOON: If following the 19 adoption of the South Coast Idling Rule the railroads wish 20 to invoke release, their first obligation is to come and 21 talk to us about it. And we would engage in a discussion 22 of whether termination was necessary statewide, and we 23 would press them to continue with idling controls 24 elsewhere in California, even if they were obliged to 25 follow South Coast's procedures. And it would turn on I PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 63 1 believe how complicated that is in the field, because they 2 have to train the same crews who move from yard to yard 3 and be consistent in their internal operations about which 4 procedures they are following. 5 SUPERVISOR DeSAULNIER: If the release trigger 6 wasn't in the provision, if they went ahead and took their 7 action, how would it be different? 8 EXECUTIVE OFFICER WITHERSPOON: It's my 9 expectation the railroads are going to sue the South 10 Coast. With or without the MOU, they would sue the South 11 Coast, because they don't believe any state or local 12 entity can restrict their idling. That is protected by 13 federal preemption. 14 SUPERVISOR DeSAULNIER: I guess just -- and maybe 15 this is for Bill. Under your earlier comments, South 16 Coast would still be allowed to continue to pursue their 17 legal and regulatory remedies. 18 EXECUTIVE OFFICER WITHERSPOON: That's correct. 19 It will be debated in the courts. And we're a bystander 20 unless the railroads approach us and say because of the 21 South Coast Idling Rule we can no longer or wish no longer 22 to abide by the statewide idling agreement, and we would 23 talk about it. And then at the end of those discussions, 24 they would invoke whatever they release they felt they 25 needed to invoke. But just for idling. The rest would PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 64 1 stay in place. 2 SUPERVISOR DeSAULNIER: Bill, I want to be sure 3 -- I voted against it. I'm very troubled by, as everyone 4 knows, about the process question and where we are. So I 5 ask these questions from that point of view. But I ask 6 you then if that happened, how does that damage South 7 Coast? 8 DR. BURKE: I'm sorry? 9 SUPERVISOR DeSAULNIER: How does it damage your 10 position if that plays through all the way, you would 11 continue to try to implement your idling rules? 12 DR. BURKE: I'm not quite sure I know. But I do 13 know this. I think that because of the way this process 14 was flawed in the beginning, I don't think that the 15 credibility -- if you continue with this MOU in the manner 16 in which it's being presented by staff, I don't think the 17 credibility to the public would be sustainable unless you 18 do go through the courts. 19 SUPERVISOR DeSAULNIER: Thank you. 20 CHAIRPERSON SAWYER: Thank you, Dr. Burke. 21 Next three are Peter Greenwald, Chung Liu, and 22 Peter Mieras. 23 MR. GREENWALD: Thank you. I'm Peter Greenwald, 24 Senior Policy Advisor for the South Coast AQMD. 25 To answer that last question, the release clause PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 65 1 damages South Coast, because it can be used by the 2 railroads, as the release clause in the 1998 MOU has been 3 used, to argue against state legislation, to argue against 4 actions by local cities, such as at the Port of 5 Los Angeles, who have unique authorities through their 6 market landlord authorities that some regulatory agencies 7 may not even have. And we think that is very important. 8 We think this agency should be taking a 9 supportive role for state and local actions to do as much 10 as possible to control locomotive emissions. This MOU 11 does just the opposite. It provides ammunition that can 12 be used and has been used in similar circumstances to 13 undermine state and local actions. 14 The South Coast AQMD staff and Board continues to 15 be opposed to the MOU. We believe the clarification 16 document released last week by your staff does not change 17 anything significantly. The clarification does not 18 address any of the numerous enforceability issues due to 19 vagueness of the document that were raised by air 20 districts around the state, environmental professals, and 21 others during workshops, at the public hearing on October 22 27th, and written comments. 23 The clarification addresses the release clause, 24 and it raises new questions despite the -- we appreciate 25 the comments by your staff earlier today about CEQA PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 66 1 mitigations. But still the language of the clarification 2 states that the railroads have to agree to that mitigation 3 before they -- in order for them not to be able to invoke 4 the release clause. And we just think that a simple yes 5 or no answer to the question should be provided. 6 The bottom line is that you're left with some 7 minor clarifications and the exact same MOU that came out 8 of the original negotiations between your staff and the 9 railroads. In order to support this document, you need to 10 believe that all of the comments by all of the air 11 districts, environmental professionals, and others do not 12 merit a single change to the MOU. 13 As you decide what to do with this MOU, we ask 14 you to please consider the following. The release clause 15 we now know is far broader and can be triggered by far 16 more actions than the release clause in the 1998 MOU. The 17 MOU has put your staff in the position of arguing against 18 your authority and against the authority of state and 19 local governments. And the railroads, by refusing to 20 consider modifications to the MOU in response to the 21 public comments that you rightly solicited, have put you 22 in the position of having very few options. Basically, 23 it's take it or leave it. 24 And what's the public getting for all this? If 25 you look at the emission reductions, the bottom line is PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 67 1 while we think it's important to get any emission 2 reductions from the source category, your staff will agree 3 the emission reductions achieved by this MOU come nowhere 4 near to what's needed to achieve acceptable levels of 5 health risk. Only three of the eight elements of the MOU 6 have had quantified emission reductions estimates. One of 7 those elements simply enforces an existing opacity 8 requirement that could be enforced today by your staff and 9 is enforced in South Coast without an MOU. 10 In closing, please make every effort to reach an 11 up or down decision on this MOU today. If you take no 12 action, the MOU remains in place by default for ten years. 13 Your Board correctly decided a few months ago the future 14 MOUs should not go into effect unless your Board ratifies 15 them. The same policies that led to that correct decision 16 apply to this MOU. 17 Thank you very much. 18 CHAIRPERSON SAWYER: Thank you. 19 Question, Mayor Loveridge. 20 BOARD MEMBER LOVERIDGE: Peter, you've done some 21 thinking and work on release clauses. This is sort of a 22 new concept to me. I was trying to remember other 23 instances where I've seen something called the release 24 clause. Is this a commonplace approach, or can you 25 comment any on the historical context of the release PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 68 1 clauses? It's not something I'm familiar with. 2 MR. GREENWALD: Of course, I have not reviewed 3 every single settlement document and MOU that's out there 4 in the world. But the only places where I've seen these 5 releases clause are in the 1998 MOU that the CARB staff 6 entered into with the railroads. And as was mentioned 7 earlier, there was a similar one regarding ground service 8 equipment at airports. 9 EXECUTIVE OFFICER WITHERSPOON: What I would say, 10 Mayor Loveridge, is it is common practice for the Air 11 Resources Board and the MOUs we enter into and have since 12 the early '90s. 13 CHAIRPERSON SAWYER: Thank you. 14 Question. 15 BOARD MEMBER D'ADAMO: This is actually for staff 16 in follow up to the example that Supervisor DeSaulnier 17 gave regarding the release clause in the event that say, 18 for example, South Coast adopts the Idling Rule and the 19 railroads decide to pursue litigation. As I read the 20 discussion document on the release clause, page 41, it 21 states that the participating railroads are not required 22 to comply with both the requirement of the local district 23 and our program. Just asking for clarification. In the 24 event that the railroads choose to pursue litigation as a 25 course of action, they wouldn't be complying anyway. So PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 69 1 I'm wondering if this release clause would not apply in 2 the event that they pursue litigation. 3 EXECUTIVE OFFICER WITHERSPOON: We've talked to 4 them about that. And, for example, were they to obtain an 5 injunction, in which case the South Coast rule wouldn't 6 apply -- and they're not willing to show their hand 7 entirely. This is between them, of course, and the South 8 Coast next week. And we'll all be dealing with the 9 repercussions after the district's adoption. So I don't 10 know the answer yet. You might ask the railroads when 11 they come up. They could choose not to implement in the 12 South Coast and implement elsewhere in the state while 13 they are pursuing litigation against the South Coast. 14 BOARD MEMBER D'ADAMO: But what's our legal 15 staff's opinion? I'm assuming that you put this document 16 together. What's your opinion based upon the existing 17 Agreement? 18 ACTING GENERAL COUNSEL JENNINGS: Well, the 19 release clause is options. So they can decide whether to 20 trigger it or not. They could decide, in fact, to 21 challenge the regulation on preemption grounds and only if 22 they lose exercise the release clause. But they also 23 would have the option subject to the meet and confer to 24 both exercise the release clause and file a lawsuit. 25 EXECUTIVE OFFICER WITHERSPOON: The exact wording PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 70 1 is, "when adopted or enforced." And we talked a lot about 2 taking out the "when adopted" clause and only when 3 actually is implemented in the field. And the response 4 from the railroads was upon adoption, it triggers actions 5 within the railroads and for their economic investments 6 and, you know, work for their lawyers, et cetera. So that 7 is the time at which they would consider their options 8 going forward. And so they weren't willing to say. They 9 would wait until the day upon which South Coast was 10 successful in implementing its Idling Rule, but could 11 invoke release sooner than that if, you know, it was 12 untenable to them inside the company. 13 CHAIRPERSON SAWYER: Dr. Liu, let me say it's 14 good to see you here. 15 (Thereupon an overhead presentation was 16 presented as follows.) 17 DR. LIU: Good morning, Professor Sawyer, members 18 of the Board. 19 For the record, my name is Chung Liu. I'm the 20 Deputy Executive Officer for the South Coast Air Quality 21 Management District. I'm responsible for technology 22 advancement. And I have 15 slides. I know I only have 23 three minutes. I'm going to jam through really fast. You 24 have the hard copy. 25 And the first slide I just want to say that I'm PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 71 1 here to respond to some of the information provided by the 2 railroad company in the past few weeks. And the railroad 3 company basically indicate that the reason they haven't 4 done any retrofit on the heavy high horsepower locomotive 5 is because it's not enough space to put in. And they 6 really presume that their action try to demonstrate oxycat 7 in the future. 8 --o0o-- 9 DR. LIU: Actually, ARB had started looking at 10 this issue about 15 years ago. There are two major 11 technical reports provided to ARB and commissioned by ARB. 12 And the recommendation at that time was already very clear 13 that the diesel particulate future and the SCR are the 14 technology should be used, should be worked on. This is 15 15 years ago. And the space -- the size issue already 16 been considered at that time, and they are a lot of 17 recommendations how to address the issues. 18 --o0o-- 19 DR. LIU: Dr. Burke just mentioned this project 20 called GasRail USA. We're working with rail industries, 21 BOE, ARB. We put a lot of money into it. And it's a 22 technology using natural gas, couple of cheap methods. 23 This technology can demonstrate on a benchmark works to 24 reduce 75 percent of the emissions. And spent many years 25 to get there. And the next slide will show you the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 72 1 sequence of how things happen. Actually, this project was 2 started from my predecessor, Dr. Alan Lloyd. And by '98 3 we actually -- '97, we actually show it's doable. We're 4 going to put on a real locomotive to do it. But ARB 5 signed to the first MOU for South Coast. And EMD walked 6 out, because the MOU didn't require them to look into 7 those things. I want demonstrate that nature of that. 8 That MOU really derailed the research efforts. 9 --o0o-- 10 DR. LIU: In the past five or six years after the 11 MOU has been signed, there's a requirement for the 12 railroad company working with ARB to push for the retrofit 13 of PM trap technologies. These are working elements 14 there. 15 --o0o-- 16 DR. LIU: Again, I want to put some calendars 17 here. You spend $5 million. So far spent $1.5 million. 18 The research entities come out. A lot of proposals doing 19 it. Rural county doesn't want to do it. And for years, 20 they done lube test. Because of the pressures put on last 21 year, they started to be more serious looking now we want 22 to try some European experience here. So I think this is 23 disheartening. So many years, so much efforts didn't get 24 anywhere. 25 --o0o-- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 73 1 DR. LIU: We went to Europe looking at 2 technology. I want to point out, they are technology 3 available. 4 I'm going to run through really fast. 5 --o0o-- 6 --o0o-- 7 DR. LIU: This locomotive is a heavy-duty 8 locomotive in German, and it's a commercial product. It 9 is a prototype, but it's commercially available. For the 10 European, if they want to do it, they can do it. We're 11 now there. 12 --o0o-- 13 CHAIRPERSON SAWYER: Dr. Liu, I must ask you to 14 conclude, please. 15 DR. LIU: I'm going to last slide. 16 --o0o-- 17 DR. LIU: I don't think the MOU works because the 18 MOU asks the money be really decided, be commanded by real 19 companies, and your Executive Officer will approve it. 20 There's no time line there. We really strong in command. 21 The money been given to ARB be administered by ARB ICAT 22 project. Otherwise, this kind of research action will be 23 going to nowhere really. And they should have the time 24 line consistant with future federal and state regulations. 25 With that, I conclude. Sorry for the time. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 74 1 CHAIRPERSON SAWYER: Thank you very much. 2 Next is Peter Mieras. And he will be followed by 3 Peter Lawson, Scott Carpenter, and David Davies. 4 Mr. Mieras. 5 MR. MIERAS: Good morning, members of the Board. 6 I'm Peter Mieras, Chief Prosecutor for the South Coast 7 AQMD. And I have two brief comments. 8 First, let me reiterate that I have been 9 prosecuting air violations for the past 16 years. My 10 office handles thousands of air violations every year. In 11 fact, I'm not aware of any office in this nation that 12 handles more air violations year in and year out than the 13 South Coast Prosecutor's Office. 14 Given this perspective, I'm concerned your staff 15 has failed to clarify the affect that an Order for 16 Abatement would have on a local air enforcement action 17 against a railroad for opacity or public nuisance. Now, 18 the MOU does not prevent local districts from taking such 19 actions. But an Order for Abatement imposes operating 20 conditions on the source in violation with these new 21 requirements open a trap door for the abandonment by the 22 railroads of idling restrictions everywhere else in the 23 state of California. This issue needs clarification. 24 I'm also concerned that your staff has failed to 25 clarify the affect of ambiguous terms applying to enforce PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 75 1 measures in the MOU. The MOU provides railroads a 2 reasonable opportunity to remedy an alleged violation of 3 the MOU. What does this mean? The MOU imposes penalties 4 only if a failure substantially impairs the goals of the 5 MOU. 6 What does this mean? The MOU provides a penalty 7 waiver -- a waiver, mind you -- in the event that 8 unforeseen or uncontrolled circumstances prevent 9 compliance. Now, in all my years I have never seen such a 10 term used in an enforcement protocol. Do you know what 11 that term means? 12 In the absence of any clarification, I'm left 13 with the disturbing conclusion that the MOU will not deter 14 violations as a well conceived enforcement protocol 15 should. Rather, it will actually accommodate violations. 16 Thank you very much. 17 CHAIRPERSON SAWYER: Thank you. 18 Are there any questions? 19 BOARD MEMBER RIORDAN: Mr. Chairman, I have not a 20 question for the speaker, but perhaps our staff would like 21 to respond to some of the issues that he raised. 22 ACTING GENERAL COUNSEL JENNINGS: In terms of the 23 question on Orders of Abatement, the MOU does protect the 24 authority of the district to enforce existing air 25 pollution control laws and regulations including the state PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 76 1 opacity standard and a district opacity standard. 2 I would say that there's a gray area at some 3 point that if there is an Order of Abatement that is 4 structured in a way that it really has the effect of a new 5 regulation, I think the railroads might come to us and 6 argue that that is covered if it clearly is an enforcement 7 implementation, we would think it isn't. 8 EXECUTIVE OFFICER WITHERSPOON: I would also 9 remind the Board we talked about this in October. There's 10 been litigation over the extent of district authority in 11 the enforcement arena. And a Settlement Agreement reached 12 several years ago lapsed ten years ago, and so the 13 railroads have reserved the right to sue over whether or 14 not a district can impose an Abatement Order at all. 15 So it's analogous to the district's adoption of 16 an idling rule next year -- excuse me -- next week that 17 were they to get into the circumstance and were the 18 railroads to consider an Abatement Order rule like, their 19 options would be to litigate directly or to talk to us 20 about the MOU. 21 CHAIRPERSON SAWYER: Peter Lawson. 22 MR. LAWSON: Good morning. My name is Peter 23 Lawson, and I work for General Electric Transportation as 24 the Product Manager for North American Freight 25 Locomotives. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 77 1 GE is recognized as the leading supplier to the 2 railroad industry, especially in the area of locomotive 3 production. For the past six years, GE has invested over 4 $250 million to develop and bring to market the Evolution 5 Series locomotive. It is the top-selling locomotive that 6 meets or exceeds the U.S. EPA's Tier 2 locomotive 7 emissions standards. Last year alone, GE built and 8 shipped more than 700 Evolution Series locomotives, the 9 majority of which were delivered to the Union Pacific and 10 the Burlington Northern Santa Fe Railway. 11 These locomotives have reduced emissions by more 12 than 40 percent when compared to GE's prior generations of 13 locomotives and more than 60 percent when compared to 14 locomotives made 20 years ago. They are one of GE's 15 featured eco-imagination products. Eco-imagination is 16 General Electric's commitment to introducing technologies 17 that help our customers meet their most daunting 18 environmental challenges. 19 In order to ensure that the Evolution locomotives 20 reliably met the emissions regulations and performance 21 needs for the railroads, UP and BNSF agreed to invest 22 early by purchasing and operating 35 pre-production units 23 18 months ahead of the local EPA Tier 2 regulation. The 24 result was a launch of a new locomotive model that is 25 meeting and exceeding all expectations. It should be PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 78 1 noted that the Union Pacific and BNSF railway were the 2 first railroads respectively to take delivery of Tier 2 3 locomotives, GE's Evolution Series. In one year, the two 4 railroads have spent nearly $1 billion on Tier 2 5 locomotives made by GE, and with another billion dollars 6 in orders that were placed. 7 Prior to Evolution, GE has had a role in helping 8 define and implement the aggressive Tier 0, Tier 1, and 9 Tier 2 locomotive standards. And while customers have 10 embraced these high-tech locomotives, accelerating 11 retirements of older generation locomotives, they are not 12 stopping there. Both BNSF and Union Pacific are 13 purchasing other hardware and software solutions developed 14 by GE to ensure that their locomotive fleets are operating 15 with the environment in mind. An example of that, which 16 you may be familiar with, is auto engine start-stop, or 17 AESS as it is known. It is technology that is helping to 18 reduce unnecessary idling right here in California. 19 Our work is not limited to today or even 20 tomorrow. We are performing work at our global research 21 center on a number of emissions reducing technologies that 22 will benefit the railroad industry and other industries 23 for decades to come. These technologies are not cheap to 24 develop or to acquire. And, thus, they require 25 significant capital expenditures on behalf of the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 79 1 railroads. 2 But everyone recognizes the importance of this 3 investment for the future. It is why GE, along with Union 4 Pacific and BNSF, is working to develop a new hybrid 5 line-haul locomotive that will further reduce emissions 6 and improve fuel efficiency. Both railroads are 7 instrumental members of our Technical Advisory Committee. 8 Meanwhile, GE is actively working to support 9 initiatives from many groups, including the California Air 10 Resources Board. Over the past years, we have 11 participated in educational sessions in both Los Angeles 12 and Sacramento. Railroading is widely recognized as the 13 most environmentally sound way to move large quantities of 14 goods, whether in California or throughout the nation. 15 I would like to close by reaffirming General 16 Electric's commitment to helping the railroad industry 17 solve its most pressing environmental issues. What BNSF 18 and Union Pacific have done to date on this front is 19 admirable. They have done more than speak. They have 20 invested heavily in these initiatives. 21 Thank you for the time and the opportunity to 22 speak before the Board. 23 CHAIRPERSON SAWYER: Thank you. 24 Questions? 25 BOARD MEMBER RIORDAN: Yes, I have a question of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 80 1 the speaker. You spoke about the line-haul locomotive 2 that you're working on. When would you think -- and I 3 recognize -- you know, I'm just asking for a ballpark 4 date. When would you think those would be available? 5 MR. LAWSON: We're talking about 2008. 6 BOARD MEMBER RIORDAN: 2008. And once that is 7 developed, capacity-wise how many you can produce would 8 you estimate a year? 9 MR. LAWSON: It would depend on the mix of the 10 product. But certainly we have not progressed to a 11 production level on that product yet. We're prototyping 12 that product as we speak. So it would be very difficult 13 to comment on a production level. However, our facility 14 has the capability to do in excess of 800 locomotives a 15 year. 16 BOARD MEMBER RIORDAN: Because that's very 17 exciting news for those of us who represent the districts 18 where the trains travel, not necessarily the yards, but 19 just the general movement of goods. And so to have a 20 line-haul hybrid is an exciting thing. So we encourage 21 you for whatever you do to move that along as soon as 22 possible. 23 Thank you, Mr. Chairman. 24 CHAIRPERSON SAWYER: And I have a question also. 25 Does General Electric see the eventual PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 81 1 application of after-treatment technology to diesel 2 locomotives? 3 MR LAWSON: We're currently working with the 4 railroads through the AAR and with the United States 5 Environmental Protection Agency for their Tier 3 emissions 6 standards. And that is certainly something that we are 7 working with them on and actively participate in through 8 our research at the Global Research Center. 9 CHAIRPERSON SAWYER: Thank you. 10 Mayor Loveridge, one more question. 11 BOARD MEMBER LOVERIDGE: I was trying to 12 understand when you said it's not yet at production -- 13 MR. LAWSON: Hybrid for a main line locomotive is 14 a significant leap in technology from working in a switch 15 or confined yard application. The demands on the battery 16 and the battery technology and the energy management of 17 that is a substantial leap in technology. We've done a 18 lot of the theoretical design and proof of concept 19 testing. We're progressing to prototyping that locomotive 20 this year and are targeting, as I said, production 21 locomotives in the 2008 time frame. 22 BOARD MEMBER RIORDAN: If I might, the reason it 23 becomes very exciting to some of us is because we have 24 those areas that demand tremendous capacity for pulling 25 uphill the grades. And just my general observation, not PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 82 1 anything scientific, those existing locomotives are 2 working very, very hard to pull those grades. So when you 3 develop something like this, and if it is then brought to 4 market and pulls the grade that I'm thinking of, this is 5 fantastic for a number of us in California. 6 MR. LAWSON: We just have to bear in mind that 7 very similar to a hybrid automobile like a Toyota Prius, 8 it's very application sensitive. As you're pulling a 9 grade, you're using the energy that's stored. You have to 10 have a corresponding decline where we are using dynamic 11 braking to recharge or store that energy. So, again, it 12 is a very application sensitive. But it is very exciting 13 technology. 14 BOARD MEMBER RIORDAN: Great. Thank you. 15 CHAIRPERSON SAWYER: Thank you. 16 Scott Carpenter, and then it will be Dave Davies, 17 Barbara Lee, Larry Green. 18 MR. CARPENTER: Hello, and good morning, Dr. 19 Sawyer and Board members. I'm Scott Carpenter, General 20 Manager of Emissions for Railpower Hybrid Power 21 Technologies, Corp. 22 As was mentioned earlier, Railpower has developed 23 and now manufactures the ultra-low emitting Green Goat 24 hybrid switcher locomotive. It is our goal to become the 25 premier supplier of switcher locomotives in both North PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 83 1 America and internationally, thus helping reduce the 2 amount of harmful emissions and fuel use by rail 3 applications. 4 The Green Goat is an ultra green hybrid 5 technology that significantly reduces idle and noise 6 during operations. Our model being delivered currently 7 can reduce both particulate and NOx emissions by 70 to 90 8 percent and can provide fuel savings of 40 to 60 percent 9 depending on duty cycle. 10 We were the first company to develop this type of 11 technology for locomotives and have now successfully 12 demonstrated the Green Goat to all U.S. Class 1 railroads. 13 We currently have 17 Green Goat locomotives deployed or 14 scheduled for deployment across the state of California. 15 Our next generation of switchers will go even 16 further than those we currently make by using cleaner EPA 17 certified non-road Tier 3 engines that reduce emissions by 18 about 80 percent compared to unregulated levels. And this 19 is without considering idling reductions that would be 20 included. 21 Furthermore, the modular design of our 22 locomotives make them somewhat future-proof. Non-road 23 Tier 2 and Tier 3 engines, as we are now using and will in 24 the near-term be using, can also apply themselves for any 25 on-coming Tier 4 engines in the future when they become PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 84 1 available. With our technology, the rail industry can now 2 leverage the emission technology advances in a small 3 engine market. 4 We now have orders for over 160 of our three 5 different models of switcher locomotives in the U.S. and 6 Canada with 32 Green Goat models already being delivered. 7 We are confident these technologies will play a critical 8 role in reducing emissions in the state of California. 9 Prior to the '98 MOU, these technologies did not exist, 10 nor did the impetus for the innovation which is now 11 supported more by ever-increasing fuel costs. 12 The MOU measures will continue to create 13 opportunities for ultra clean locomotives around the state 14 of California, just as the 1998 NOx MOU helped spawn the 15 development of the technology. Railpower supports this 16 Agreement entered into by the Air Resources Board and the 17 Union Pacific Railroad and Burlington Northern Santa Fe 18 Railway Company. We strongly urge the Board to consider 19 to support and fully implement the 2005 MOU. 20 Thank you. 21 CHAIRPERSON SAWYER: Thank you. 22 BOARD MEMBER RIORDAN: My colleague won't ask it, 23 but I will, because you're the man that would know how the 24 Green Goat got started. 25 MR. CARPENTER: As far as the name? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 85 1 BOARD MEMBER RIORDAN: We understand Green. 2 We're wondering about the Goat. 3 MR. CARPENTER: The rail gentleman can probably 4 answer, but I believe the Goat was a term for a switch 5 locomotive, so thus Goat. And Green being environmentally 6 friendly. 7 BOARD MEMBER LOVERIDGE: The question of the day 8 is where does that come from. 9 MR. CARPENTER: Oh, where does the Green Goat 10 name come from? That I couldn't tell you. 11 Thank you. 12 CHAIRPERSON SAWYER: Dave Davies. 13 MR. DAVIES: Dr. Sawyer, members of the Board. 14 My name is Dave Davies, and I'm the Senior Executive 15 Manager for NREC Pacific Southwest Region, National 16 Railway Equipment Company, that is. And it is a supplier 17 to the Union Pacific and the Burlington Northern Santa Fe 18 and works closely with both railroads' mechanical and 19 engineering departments to develop new products and 20 technologies to improve overall performance and efficiency 21 of the railroads' locomotive fleet. 22 We have participated in several projects in 23 recent years to make such improvements with idle limiting 24 installation, new components, and most recently a new low 25 emission genset switching locomotive powered by new PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 86 1 Cummins QSK 19 truck engines. 2 In addition to the new clean burn EPA Tier 3 3 engines, the new genset switcher is equipped with idle 4 limiting technology which will automatically shut down the 5 engines while sitting in idle mode for 15 minutes. This 6 will obviously result in less fuel consumption. With the 7 in-force micro-processor on board, rail adhesion and the 8 ability to move rail cars is achieved with considerably 9 less diesel engine workload compared to conventional 10 locomotives, and thus less emissions. A combination of 11 all the technology on this new unit has resulted in the 70 12 percent reduction in airborne pollutants over older 13 conventional switching locomotives. This has been 14 verified and validated by EPA testing results in August 15 2005. 16 The new genset low emission switcher was recently 17 showcased on the Union Pacific at Roseville, California, 18 the City of Industry, California, and will be featured in 19 the Faster Freight Cleaner Air 2006 Conference next week 20 in Long Beach, California. This prototype unit is 21 presently working on the UP in the Los Angeles basin. 22 NRE is currently bidding for the UP contract to 23 provide 60 of these new switchers over the next 24 months 24 to work in the Los Angeles basin. We hope to be awarded 25 that contract in the very near future. The technology NRE PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 87 1 has utilized in an effort to meet the rail industry 2 locomotive needs will only be pushed further by industry 3 demands and regulatory participation. The current MOU 4 represents the best and most timely course to mitigate the 5 existing emissions from railroad locomotives and rail 6 operations. With this voluntary agreement worked out 7 between both Class 1 railroads and CARB, an estimated 20 8 percent reduction in particulate matter emissions from 9 rail yards throughout the state will be met over the next 10 three years. 11 On behalf of National Railway Equipment, we 12 encourage the Board to leave the Agreement in place and 13 continue implementing this innovative Agreement. Thank 14 you very much. 15 CHAIRPERSON SAWYER: Thank you. 16 We'll take the testimony from the next three 17 speakers, Barbara Lee, Larry Green, and Aeron Genet, and 18 we'll take a break for our court reporter following that. 19 Barbara Lee. 20 MS. LEE: Good morning, Chairman Sawyer and 21 members of the Board. My name is Barbara Lee. I'm the 22 Air Pollution Control Officer in Northern Sonoma County, 23 and I am currently the President of California Air 24 Pollution Control Officers' Association. I'm here today 25 on behalf of CAPCOA, but I do want to start out by making PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 88 1 it clear that in my testimony today CAPCOA does not 2 represent the San Joaquin Valley Air District. They have 3 a different position, and they will be articulating that 4 to you. 5 Indeed, you're going to hear from a number of 6 CAPCOA members, and you have probably received letters 7 from them. The air districts have a range of different 8 perspectives about this MOU. And it depends in large part 9 on the degree of benefit they perceive for their specific 10 areas. 11 The testimony I'm giving represents the common 12 issues that we have. And as we outlined for you 13 previously, there were three main issues. Two of them are 14 relevant today at the hearing. 15 And I want to briefly mention the first, which is 16 the enforcement of the document. We remain very concerned 17 that the terms -- some important terms in the document are 18 ambiguous and therefore likely to be unenforceable in the 19 event of a dispute over their meaning in the future. And 20 we are very concerned that the method of clarifying the 21 MOU itself through a side letter is also unenforceable. 22 And we, therefore, ask the Board to direct staff to seek 23 better clarification of these terms and to do so in the 24 body of the Agreement. 25 But our main issue, our biggest concern by far, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 89 1 is the release of obligations clause in the document. We 2 absolutely disagree with the staff representation that it 3 does not have any affect on state and local authority. It 4 may not remove authority, but it creates a significant 5 impediment to the exercise of that authority. 6 As Peter Greenwald outlined, our concern is not 7 what happens after the release clause is triggered. Our 8 concern is how the release clause may be used to prevent 9 any one of us or you or the Legislature or others from 10 taking action to reduce public exposure to rail emissions 11 in the jurisdictions that we're charged with protecting. 12 So I want to state that we clearly, absolutely, 13 and unambiguously oppose the use of the release of 14 obligation clause in this MOU. We ask the Board to direct 15 staff to remove the clause, to revise the clause so that 16 it only applies in the jurisdiction that has taken action 17 to activate it, and that you resolve not to use a 18 construct like this again. It is a decisive construct. 19 It pits government against government. It gives benefits 20 in one area predicated on the understanding that other 21 areas will have a more difficult time pursuing benefits 22 for themselves. That is poor public policy. We are very 23 concerned about it. And we ask you to please remedy that 24 provision of the MOU, if you do nothing else. If this 25 Board is able to remove or revise the clause of release in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 90 1 the MOU, CAPCOA will happily support the MOU and work 2 cooperatively with ARB on its implementation. 3 Thank you very much. 4 CHAIRPERSON SAWYER: Thank you, Barbara. 5 Mayor Loveridge. 6 BOARD MEMBER LOVERIDGE: I wondered if staff 7 could respond to the three specifics of: One, 8 incorporating clarifications into the Agreement; number 9 two, why not eliminate the release of obligations clause 10 in Section C; and what about the third point of revising 11 it to apply only to jurisdictions that take an action that 12 would trigger the release clause option not to terminate 13 the Agreement statewide. Can staff respond to all three? 14 I think they are significant points, and I think they're 15 particularly significant when they're offered by consensus 16 of those who we ask to represent clean air in districts of 17 California. And I thank you very much for your testimony. 18 I think those are three very powerful questions CAPCOA has 19 put on the table. 20 EXECUTIVE OFFICER WITHERSPOON: They are, and we 21 talked about these at length in October. 22 The Air Resources Board does not have the 23 unilateral authority to change anything in the Agreement. 24 It is an agreement between parties. And so the question 25 becomes will the railroads accept an Agreement that has PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 91 1 all of the provisions that reduce emissions and is absent 2 the release clause, and the answer to that question is no. 3 They will not. 4 What they have offered is to enter into local 5 implementation agreements with districts that wish to work 6 with them on something that is more consistent statewide 7 because that works better for them as national companies. 8 And I would say that that's the public policy argument for 9 doing it the way we do it, that we regulate cars 10 statewide. We regulate consumer products statewide. 11 There are other things we regulate statewide, because it's 12 not practical to break it apart into local jurisdictions, 13 and railroads are the same. 14 And what they have offered is to sign agreements 15 with individual air districts where they also as part of 16 the agreement bind themselves not to walk away no matter 17 what another air district might do. And so that option is 18 available for local districts who wish to work in this 19 construct that has been created between us all. 20 With respect to the enforceability of the 21 clarification document, we did not put it in a signature 22 format, because we were concerned that we would be accused 23 once again of doing something in secret and out of the 24 public eye. But the railroads have indicated should the 25 Board desire signatures from their companies, they do, in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 92 1 fact, intend to abide by the clarification agreement. 2 They will seek those signatures. 3 And, lastly, on the issue of enforcement, 4 something we haven't talked about much at all is that 5 every clause of the Railroad Agreement carries with it the 6 expectation of implementing protocols which we are working 7 at and which spell out in greater detail how individual 8 things such as the locomotive smoking repair works, the 9 idling trailing works, and you saw some of the documents 10 of what the training curriculum looks like. And we've 11 reviewed them and commented on their adequacy in our 12 judgment. So it's not just the words in the core 13 Agreement. It is all the implementation steps we are 14 taking with the railroads as we go through it and exercise 15 it in the field. 16 BOARD MEMBER LOVERIDGE: I thought on the second 17 page of the report that the question of site agreements 18 get into the notion of we want to avoid patchwork or 19 individual kind of agreements with districts. They need 20 to create a statewide standard. We're not going back to 21 patchwork. I thought the sentence -- the last two 22 sentences were good ones, "A series of individual site 23 agreements would seem to create the very patchwork the 24 state MOU purports to avoid. CAPCOA believes our proposed 25 straightforward change to language in the release clause PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 93 1 would be the simplest and cleanest way to achieve the 2 clarification." That makes sense to me. What's wrong 3 with that? 4 EXECUTIVE OFFICER WITHERSPOON: What the 5 railroads would like the agreements to do is leave the 6 basic emission control strategy intact, but be sensitive 7 to both the role of the local air district in 8 implementation, structuring that participation, and if 9 there are additional unique issues to the district that 10 aren't about what is the idling limit cutoff, who gets an 11 anti-idling device, how many hours until you take a 12 smoking locomotive to the maintenance yard. 13 For example, in the Bay Area, they wish to add a 14 rail yard to the list of health risk assessments that's 15 not on our list of 17. That's something the railroads are 16 willing to negotiate with the Bay Area over and talk about 17 when that could be done, when it could be added to the 18 list. And there might be other issues in other areas that 19 don't change the core construct but do address unique 20 local issues. 21 I would say if the Board wishes to direct us not 22 to use release clauses in the future, that's certainly 23 your prerogative. We do have one now, and it's not 24 negotiable in this MOU. But you can ask the railroads 25 about that when they come up as well. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 94 1 CHAIRPERSON SAWYER: Thank you, Barbara. 2 Larry. 3 MR. GREEN: Good morning, Dr. Sawyer and members 4 of the Board. I'm Larry Green. I'm the Air Pollution 5 Control Officer at the Sacramento Metropolitan Air 6 Pollution Control District. 7 As you know, districts in California vary widely 8 in their inventory attainment status and how their local 9 program has been developed to respond to local air issues. 10 The largest rail facility in the Sacramento region is the 11 Davis Rail Yard in Roseville. And the initial risk 12 assessment of this facility was performed by the Air 13 Resources Board staff at the request of the Placer County 14 ABCD, and this highlighted a significant risk of rail 15 emissions to areas adjacent to the facility. This 16 assessment resulted in a local MOU with the Union Pacific 17 Railroad which pre-dated the document under review. And 18 the risk assessment efforts outlined in that local MOU and 19 other efforts to replace engines and install idling 20 equipment in rail engines operating in the region have 21 been cooperative and have proceeded in a timely matter. 22 Our response to the ARB MOU is framed within the 23 context of this cooperative effort with Union Pacific. We 24 believe some elements in the ARB MOU will be beneficial to 25 our region. And the clarifications and work accomplished PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 95 1 by the ARB staff since the last meeting has answered most 2 of the initial concerns with regard to the MOU. 3 While we remain skeptical that the enforcement 4 provisions are sufficient based on our local experience 5 with such actions, we feel the visibility of the program 6 will in itself help ensure provisions of the MOU are 7 accomplished. And there's been a lot of work done in that 8 regard already. 9 One area that has not been resolved is the 10 release clause. We feel that our initial concerns about 11 that preemption of local authority to make decisions 12 remains, and our legal counsel advises that a 13 clarification from one party would not supercede elements 14 of the signed Agreement between two parties. This clause 15 is to us the remaining significant issue with the MOU. 16 And in line with the CAPCOA letter, if that clause were 17 eliminated or amended, we would support the MOU. 18 Thank you for the opportunity to offer these 19 comments. 20 CHAIRPERSON SAWYER: Thank you. 21 Aeron Genet. 22 MS. GENET: Good morning, Chairman Sawyer and 23 members of the Board. I'm Aeron Arlin-Genet. I'm 24 Planning Manager with the San Luis Obispo County Air 25 Pollution Control District, and I want to thank you for PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 96 1 the opportunity to provide comments on the clarifications 2 to the 2005 MOU. 3 We applaud your effort to reduce the impacts from 4 railroad operations. We believe the overall scope of the 5 Agreement holds significant potential for achieving 6 important reductions in toxic air pollutants. However, as 7 we've stated in our written and oral testimony provided to 8 you at the October Board hearing, as well as those 9 comments that our Board forwarded to you in a letter dated 10 November 30th, there are still many important details in 11 the MOU that remain problematic for implementation. And 12 we urge your Board take additional steps to address these 13 aspects to preserve the overall effectiveness of the 14 Agreement. 15 Our main concern falls into the three categories: 16 First being the release clause and its impact to local 17 authority; second, the vagueness of the enforcement 18 provisions; and lastly, the lack of public process during 19 such an important MOU. 20 In regards to the release clause, we are pleased 21 to see staff clarifications indicating that existing local 22 agreements with the railroads can still be in force 23 without triggering the release clause statewide. However, 24 this modification was not made to the MOU itself and as 25 such is lacking in enforceability and open to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 97 1 interpretation. For something as important as a release 2 clause, we recommend either the Agreement be modified or 3 Resolution be signed by all parties to clarify the intent 4 of this clause. 5 Apart from this clarification, the release clause 6 raises significant public policy issues. The ability to 7 tailor our air quality programs to address the specific 8 issues of our community is essential to ensure the local 9 needs are met. Yet, by its very nature, the release 10 clause constrains the ability of local jurisdictions to 11 exercise their appropriate authority by imposing the 12 threat of significant repercussions throughout the state. 13 This affect could pit one jurisdiction against another and 14 set a public policy precedent that should not be endorsed 15 by the ARB. 16 We also urge your Board to request clarification 17 in the enforcement provisions of our Agreement. We've 18 mentioned our recommendations and prior correspondence to 19 our Board. There are many open-ended clauses and vague 20 phrases in the Agreement that could contribute to high 21 potential for ambiguous interpretations as the 22 implementation proceeds. 23 We believe the goals and basic elements addressed 24 in the Agreement have the potential to provide significant 25 public health benefits if properly implemented and ask PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 98 1 that your Board today take action and request additional 2 modifications to ensure those benefits are realized. 3 Thank you. We appreciate your attention and 4 consideration to our concerns on this important issue. 5 CHAIRPERSON SAWYER: Thank you, Ms. Genet. 6 Excuse me for anglicizing your name. 7 Are there any questions? 8 If not, we'll take a break now for ten minutes. 9 And we'll resume at quarter to. 10 (Thereupon a recess was taken.) 11 CHAIRPERSON SAWYER: The next three speakers will 12 be David Jones, Sylvia Befancourt, and Rachel Lopez. 13 MR. JONES: Thank you, Mr. Chair and members. My 14 name is David Jones, and I'm here on behalf of the city of 15 Pasadena. 16 We are opposed to the MOU as currently drafted. 17 We'd like to associate ourselves with the comments made by 18 the speaker from South Coast. We would like to reinforce 19 their message about the clarifications to the deficiencies 20 in the MOU as currently drafted. 21 We're particularly concerned with the 22 implications of the release clause and the leverage that 23 we believe it gives to the railroad industry over those of 24 local air quality administrators. We think that with such 25 an important document with health implications that we PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 99 1 think there needs to be more deliberation, and we would 2 urge you to take the MOU back and make further 3 modifications. 4 CHAIRPERSON SAWYER: Thank you very much. 5 Sylvia Befancourt. 6 MS. BEFANCOURT: Hello. My name is Sylvia 7 Befancourt. I work with East Yard Communities for 8 Environmental Justice. And I'm -- and it's located in the 9 city of Commerce where two large intermodal facilities are 10 also located. 11 I live in the city of Long Beach and am well 12 aware of the air quality there and drive up and down the 13 710 freeway every day to work in the city of Commerce, 14 like I said where I was raised. 15 One of the things for me as I was growing up in 16 the city of Commerce was this sense there was something 17 wrong in our community, and something that I couldn't 18 quite articulate, put into words to describe that living 19 next to two large intermodal facilities next to two very 20 busy freeways with trucks coming in and out of our 21 neighborhoods and a huge amount of rail yard activity, not 22 just locomotives, but also the railroad operations in 23 general. 24 That not being able to articulate it at the time, 25 as I started to become a little more informed and find a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 100 1 few words to be able to describe -- to put to words what 2 it was that I was experiencing, what it is that our 3 community is facing with respect to health problems 4 respiratory problems and cancer, words like environmental 5 injustice, precautionary principle, cumulative impacts, 6 and today Green Goat. 7 That said, I want to talk a little bit about the 8 vague language that is in the MOU. And what I want to 9 state is the language regarding the provision to reduce 10 idling is unclear and unenforceable. The MOU refers to 11 reducing idling when it is feasible to do so. This broad 12 choice of words creates a loophole by making it difficult 13 to identify the legal requirements of the railroads to 14 reduce idling. 15 Our question is under what conditions and to what 16 level? There's no real teeth to the document, and we find 17 that it's flawed not only in process, but also within the 18 content. We are opposed to the MOU. We ask that you also 19 oppose it. Thank you. 20 CHAIRPERSON SAWYER: Thank you very much. 21 Rachel Lopez. 22 MS. LOPEZ: Yes. Good morning. My name is 23 Rachel Lopez, and I live in Mira Loma/Riverside County 24 area. 25 I find myself here again. Following the hearing PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 101 1 in October in El Monte, I think we all community members 2 left with the sense of being slapped in the face that day. 3 After over 50 community members gave compelling testimony, 4 we were told that our testimony, however compelling, was 5 irrelevant to the MOU. I'm here today to tell you that 6 we, community, is not irrelevant. We are asking that you 7 rescind this MOU. We matter in our communities. The 8 health of our families is important to us. 9 We have felt that ARB's process with this MOU was 10 a stab in the back to the communities. We felt that with 11 ARB coming into our communities and trying to start up the 12 pilot projects that this was an extending a hand out to 13 the communities to say, "We're here to help. We're here 14 because we care about your health, your family's health." 15 And they turned around and did this process a back door 16 deal with the railroad. 17 We in Riverside County have an MOU with the Union 18 Pacific Railroad, and it is a joke. There are provisions 19 in that MOU that indicate that those trucks in that 20 facility, which is the UP auto facility, is the world's 21 largest auto facility in the area. It's right next door 22 to our high school, which is a hot spot for air quality in 23 our community. We have not even been able to get them to 24 close the gate that is right next door to our high school 25 to lesson the risk to our students who play sports right PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 102 1 next door to that facility. 2 There is a provision in that MOU that states that 3 the trucks are supposed to stay out of our community. 4 That is a 24-7 facility. Those trucks are in our 5 community 24-7. The trucks get stuck in front of my house 6 at least twice a month. Last month, there was a truck 7 that bottomed out in front of my house. The gentleman had 8 to unload his cargo, all of the cars had to come off, in 9 order for him to get out. He stayed in front of my house 10 for about four hours. This is an ongoing thing. 11 CHAIRPERSON SAWYER: I'm sorry, I must ask you to 12 conclude, please. 13 MS. LOPEZ: I'm asking you to rescind this MOU, 14 because as far as I'm concerned, it does not have any sort 15 of enforcement. Thank you very much. 16 CHAIRPERSON SAWYER: Thank you very much, 17 Ms. Lopez. I can assure you that every individual in 18 California is relevant to what we do, and we appreciate 19 your coming to express your views on this issue. Thank 20 you. 21 MS. LOPEZ: Thank you. 22 CHAIRPERSON SAWYER: Next we'll have Andrea 23 Samulon, and then A.J. Napolis, and Melissa Perrella. 24 MS. SAMULON: Hi. My name is Andrea Samulon. 25 I'm a research associate at the Pacific Institute in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 103 1 Oakland, also representing the Bay Area Ditching Dirty 2 Diesel Collaborative and the Good Movements Subcommittee 3 of that collaborative. 4 The ambiguities that ARB staff are directed to 5 clarify by the Board in this latest report have still not 6 been adequately addressed. In addition to the poison pill 7 clause, there are numerous ill-defined terms and ambiguous 8 concepts that riddle the entire MOU. The ambiguities deem 9 the MOU at best ineffective and at worst a total danger 10 for Californians' health and our environment. Therefore, 11 I'm here to urge you to rescind the MOU and hope you will 12 do so today. 13 I want to briefly provide you some examples of 14 the type of ambiguities I'm referring to. These 15 ambiguities are elaborated in great detail in a letter 16 sent to the Board Chairman dated January 24th, 2006, and 17 signed by 17 people from a broad range of environment and 18 environmental justice and health and community-based 19 groups who collectively represent hundreds of thousands of 20 Californians. I will discuss only two ambiguities here. 21 On early introduction of low sulfur diesel, the 22 language in the MOU doesn't specify a minimum required 23 amount of cleaner fuels that railroads must use. Simply, 24 it is left up to the polluter, railroads, to decide how 25 much cleaner fuels they feel like using. The language in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 104 1 the MOU states, "the railroads agree to maximize the use 2 of lower sulfur diesel fuel." Last time I checked, 3 maximize wasn't a specific quantity. 4 On idling reduction program, the language here 5 grants the railroads free range to determine how much they 6 can reduce their own idling. The ambiguous language in 7 the section includes phrasing like, "shall reduce 8 locomotive idling by the maximum amount that is feasible." 9 The vague language placed the burden to reduce idling 10 entirely on railroads and relies on their "best efforts." 11 I am not satisfied with this, nor are the majority of 12 Californians whom you sit here representing. 13 There are many more examples of this vague 14 language, but time does not permit me to get into each one 15 here. We all know that sources of emissions in California 16 are not diminishing but only multiplying. The Governor's 17 top priority is expansion of California's goods movement 18 industry and accompanying infrastructure. We simply 19 cannot afford to weaken existing laws aimed at regulating 20 these sources, nor can we afford to weaken the authority 21 of the few agencies that are willing to take on the task 22 of regulating these emissions, in this case, locomotive 23 emissions. This MOU effectively weakens regulations and 24 the local and state authority already in place to enforce 25 them. It seems this MOU is a handout to polluting PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 105 1 industry and a punishment to those who have been 2 victimized by it time and time again. 3 While the substantive concerns I briefly touched 4 on are serious enough to justify a vote to rescind the 5 MOU, the process by which the entire document came into 6 existence is just as or even more problematic. A flawed 7 process can never build a foundation for policy that is 8 legitimate. The way in which the MOU was secretly 9 negotiated is a slap of the face of environmental justice 10 principles, principles to which CARB purportedly 11 subscribes and specifically to those EJ communities who 12 have long suffered from egregious violations by the 13 railroads. Please rescind the MOU today. Do not force 14 California and all Californians down a regressive path. 15 CHAIRPERSON SAWYER: Thank you very much. 16 A.J. Napolis. 17 MR. NAPOLIS: Good morning. My name is A.J. 18 Napolis. I'm the Program Director for Communities for a 19 Better Environment. We have two offices in the state of 20 California, one in Southern California in Huntington Park 21 and one in Northern California in Oakland. I'm here to 22 represent the hundreds of members who have and who will be 23 affected by this rule. CBE has over 25 years of 24 environmental health and environmental justice experience 25 in the state of California. We've taken on both numerous PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 106 1 types of both stationary and mobile source campaigns to 2 better the lives of the disproportionately impacted people 3 in our community. 4 You received a letter from CBE that was signed 5 along with other environmental health and environmental 6 justice organizations, and in that letter identifies many 7 flaws, including what you've heard today, the numerous 8 substantial deficiencies and ambiguities that have yet to 9 have been clarified. We've also been concerned with the 10 release clause, the proverbial poison pill clause, you've 11 heard already from many distinguished guests who are here 12 speaking against the rule. 13 One of the most important things for us as an 14 organization is the public participation process. And 15 it's really ironic that as a government we taut democratic 16 freedoms and policies abroad to other countries, 17 particularly those that have been experiencing tyrannical 18 and undemocratic rule. Yet, for many people, they feel 19 that nationally we don't follow through with these very 20 same principles. 21 You've heard today from a number of different 22 speakers about how the process has been flawed. There are 23 a lot of people who wanted to come to this hearing and 24 many people I talked to felt that this is just an exercise 25 of futility and this decision is already made and that the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 107 1 fix is in. I cannot believe after hearing the compelling 2 testimony from many people today urging you to rescind the 3 MOU, that the fix is in, that your decision is made. It 4 would seem to me that given the preponderance of testimony 5 you've heard that you would really take into consideration 6 and weigh to rescind this MOU. I urge you to do so. I 7 urge you in good conscious that we uphold democratic 8 principles of this country and that you really take heed 9 to public participation process regarding this MOU. Thank 10 you. 11 CHAIRPERSON SAWYER: Thank you very much. 12 Melissa Perrella and then it will be Margaret 13 Gordon, Wafoa Aborashed, and Christopher Weaver. 14 MS. PERRELLA: Good morning, Dr. Sawyer and 15 members of the Board. My name is Melissa Perrella. I'm 16 here today on behalf of the Natural Resources Defense 17 Council and the California League of Conservation Voters. 18 Both NRDC and CLCV urge the Board to rescind the MOU. 19 You've heard this morning that like SCAQMD, other 20 environmental and community groups have submitted numerous 21 comments and also provided testimony on the many 22 ambiguities in the MOU, those ambiguities being not only 23 included in the termination clause but throughout the 24 Agreement. We were very disappointed to see the staff 25 report and to note that many of these ambiguities were not PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 108 1 clarified in the staff report. And it was our 2 understanding that at the last Board meeting that staff 3 and railroad actually directed to clarify the meaning of 4 the termination clause in addition to -- in addition to 5 other terms in the Agreement. 6 And now while I have not had a chance to 7 thoroughly review the document that was provided this 8 morning, I still remain extremely concerned that the MOU 9 remains just as vague as it did back in October of 2005. 10 So I'd like to submit to you -- and I don't mean to make 11 light of the situation -- that none of you in your 12 personal lives would enter into a contract, whether it be 13 for a car or a house or for a loan, if you didn't know 14 precisely what all of those terms of that agreement meant. 15 I don't think any of you would sign your name on the 16 dotted line and think that while I may not know what all 17 of these terms mean, I'm sure that if I should have to 18 enforce this agreement, the loan officer, the bank, the 19 dealership and I, I'm sure will all see eye to eye. I 20 would urge you if you would not do that in your personal 21 lives, you would not do it as members of the Air Resources 22 Board. 23 I truly appreciate the difficult situation that 24 you are in today. I understand that this Agreement may 25 have been entered into with good intentions and that if PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 109 1 there are any benefits that can be reaped from this 2 Agreement that you are eager to reap them. But can you 3 say that these benefits will be achieved given the vague 4 and ambiguous terms in the Agreement? And can you say 5 that these benefits outweigh the lack of transparency and 6 the legal setbacks that have been created by this 7 Agreement? Because I urge you that both of the answers to 8 those questions have to be no, I urge you to rescind the 9 MOU. 10 CHAIRPERSON SAWYER: Thank you. 11 Margaret Gordon. 12 MS. GORDON: Good morning. Margaret Gordon, West 13 Oakland Environmental Indicators Project. I'm Co-Chair. 14 Thank you for being able to come back and submit my 15 comments and my opinions about this MOU. 16 And, Dr. Sawyer, Jamie Fine told me to tell you 17 hello. 18 CHAIRPERSON SAWYER: Thank you. It's good to see 19 you here as a fellow Oaklander. 20 MS. GORDON: As a West Oaklander, I live less 21 than six blocks away from the railroad, from UP's 22 facility. And as one of the few people here as a resident 23 of an impacted area, I must say there's too many 24 loopholes, too many gaps in the local impacted community 25 who participated in the process of being part of the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 110 1 decision making on what the railroad is planning on doing. 2 We as local residents are isolated in so many different 3 ways of participating and framing the process that's going 4 to affect our lives. I think this is a wrong -- this is a 5 wrong precedent to be set forth by government to say that 6 the railroad will come and dictate to the community and 7 give us the message, instead of us sitting down and 8 participating and framing the process that we see is going 9 to affect our lives. 10 This is not -- this is just wrong. And I don't 11 know how you can spell wrong, but this is just wrong 12 policy. You have EJ policy. You have participation 13 policy on the CalEPA -- already on the books. This is 14 injurious to your already existing things that says that 15 we are supposed to be fully participants into what happens 16 into our community. This is just wrong. 17 And I hope that you take it back. There's too 18 many loopholes in here. I do not as a resident like being 19 dictated by any industry that's in my community without 20 having a voice to it. Having a complaint process does not 21 mean I can shape -- have a voice into what they're doing. 22 By having this policy and not having this MOU not being 23 clear on how local residents, local community can be 24 engaging to what the railroad is doing does not give us 25 the ability to become partners in any of this stuff. This PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 111 1 is just wrong. 2 CHAIRPERSON SAWYER: Thank you very much, 3 Margaret, and especially for your forceful articulate 4 presentation of your viewpoint. 5 Next is Wafoa Aborashed. 6 MS. ABORASHED: Good try. It's Wafoa Aborashed. 7 And I am the Coordinator for Environmental Justice Air 8 Quality Coalition. And I also represent a community in 9 San Leandro. It's called Davis West Neighborhood Group. 10 And I'm also a part of Ditching Dirty Diesel. 11 I'd like to start by thanking you for giving us 12 this opportunity, specifically because of what just 13 Margaret Gordon had stated. Public participation should 14 be number one thing that you do. Because when you cut out 15 the public, what you're doing really is cutting out the 16 opportunities for you to understand all the impacts that 17 these people are dealing with. 18 I work very closely with Oakland Airport issues, 19 and I see this particular issue very similar to what we 20 had to deal with with Oakland Airport. When you pit one 21 government against each other, the trust from the 22 community goes out the door. And that's what Oakland 23 Airport had to deal with with the FAA, and I see it here 24 with DOT, with state and local governments. There's such 25 hypocrisy between all of this process that I feel like the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 112 1 people are not important to you. So I ask you to listen 2 to what the people said today. 3 I especially want to echo Councilwoman from Long 4 Beach, whatever she had said you need to do for the Bay 5 Area. We have many experts today telling you this MOU is 6 vague and ambiguous and it's not trustworthy. I want to 7 make sure that you understand this release clause creates 8 a bigger issue for us because we don't see any 9 enforcement. It's whatever the industry wants. 10 And mostly, since my time is almost out, I want 11 you to realize that do not shelf this MOU. Please rescind 12 it, because there's enforcement clarification provisions 13 that are still out there, and you need to deal with that. 14 And public process needs to come back into this. You need 15 to engage with us. You need to create an advisory board 16 where you can engage the public and do better outreach. 17 Thank you. 18 CHAIRPERSON SAWYER: Thank you very much. 19 Next is Chris Weaver, and then it will be Janet 20 Nguyen, Bob Lucas, and Tom Jordan. 21 Chris, good to see you. 22 MR. WEAVER: Thank you, Mr. Chairman. And as one 23 of your former students, I'd like to congratulate you on 24 your new position. 25 CHAIRPERSON LLOYD: Thank you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 113 1 (Thereupon an overhead presentation was 2 presented as follows.) 3 MR. WEAVER: I'm speaking today at the request of 4 the South Coast Air Quality Management District, repeating 5 the summary of some of what I presented to them a few 6 weeks ago. 7 I'd like to address specifically also the 8 technology development aspect of the MOU; and, second, the 9 comment by the South Coast that the funds -- the 10 management of those technology development funds should 11 not be left to be suggested by the railroad since the 12 railroads have a long history of studying emission control 13 technologies to death in place of implementing them and 14 that in fact recommend implementation should be controlled 15 by the Air Resources Board or by another organization more 16 dedicated to actually getting these innovations into the 17 field. 18 --o0o-- 19 MR. WEAVER: I want to talk specifically about 20 selective catalytic reduction, which is one of the very 21 promising technologies not mentioned in the MOU. This is 22 a photo of a new compact urea SCR system for retrofit to 23 mobile sources. Scale is given by my business card there 24 on the top of the injection unit. This is intended for 25 about a 200 horsepower engine, but the locomotive size PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 114 1 would have bigger catalysts, not much bigger injection 2 unit. 3 --o0o-- 4 MR. WEAVER: We're working with European 5 manufacturers to introduce these systems, trucks, 6 commercial boats, locomotives, and non-road equipment. 7 The photo on the right there, Ms. Riordan, is a 8 photo -- another thing that's also called the yard goat. 9 This is a yard hostler. Goat is a generic transportation 10 industry slang for yard hostler, probably because they 11 tend to be old and somewhat unattractive and smelly. 12 --o0o-- 13 MR. WEAVER: Status of selective catalytic 14 reduction from locomotives is they're widely used on 15 similar sized engines and stationary applications. A 1994 16 report done for the Air Resources Board by my firm 17 identified SCR then as the most cost effective measure 18 available for locomotives and developed a conceptual 19 design based on what was then the stationary SCR system 20 technology. That report was never implemented in part 21 because it led the railroads to pressure EPA to extend 22 their preemption clause to include retrofit as well. 23 Railroads have strongly resisted SCR proposals on 24 the grounds of cost and the space requirements on the 25 locomotive. But a new emission control system at the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 115 1 Roseville rail yard will capture locomotive emissions of a 2 stationary hood and apply SCR to those captured emissions. 3 But new compact SRC systems, like the one we're helping to 4 introduce, provide major improvements in both cost and 5 space demand and would allow the use of SCR on board. 6 CHAIRPERSON SAWYER: Chris, I must ask you to 7 conclude, please. 8 --o0o-- 9 MR. WEAVER: Yes, okay. This is a photo of the 10 existing exhaust system on a typical locomotive F59. 11 --o0o-- 12 MR. WEAVER: And this is the SCR catalytic 13 converter that would fit in the same space. 14 --o0o-- 15 MR. WEAVER: Cost effectiveness would be about 16 $3,000 a ton. 17 --o0o-- 18 MR. WEAVER: And could be applied to freight 19 locomotives as well. 20 CHAIRPERSON SAWYER: Thank you very much. We 21 look forward to working with you to get this technology 22 into the locomotive application. 23 Janet Nguyen. 24 MS. NGUYEN: Good morning, Mr. Chairman, members 25 of the Board. My name is Janet Nguyen, and I'm the Vice PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 116 1 President of Government and Public Affairs for the Long 2 Beach Area Chamber of Commerce. I'm here to represent the 3 Long Beach Area Chamber of Commerce and my President and 4 CEO, Randy Gordon. 5 The Chamber represents over 1800 businesses 6 within the Long Beach area region. Our platform is to 7 provide leadership, education, and advocacy for the 8 business community so the Long Beach area thrives in the 9 21st century. The ports, especially the Long Beach Port, 10 are the backbone of the distribution network and important 11 economic engine for the region, especially our city. 12 The MOU achieves a 20 percent reduction in PM 13 around rail yards over the next three years. This is 14 faster than any other regulatory agency in California 15 could have achieved. These reductions are achieved 16 without compromising the efficiency of the rail 17 operations. 18 As discussed in the staff report, after six 19 months, our understanding is that the railroads have 20 invested significant resources and have made tangible 21 steps to: 22 1. Train railroad staff to reduce idling and 23 visible emissions and create a process for communities to 24 report idling or smoking locomotives. 25 2. Hold community meetings around a designated PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 117 1 yard to discuss mediation measures. 2 3. They have developed health risk assessments 3 at the major rail yards around the state. 4 4. They have evaluated the potential use of 5 diesel filters for locomotives. 6 The railroads recently announced plans to acquire 7 over 70 new low-emissions shift locomotives for operation 8 in the Los Angeles basin for 2006 and 2007. 9 The termination clause is essential to ensure 10 consistency in statewide regulation and to avoid a 11 patchwork of regulations. We believe that your staff and 12 the railroads have clarified the termination clause to 13 ensure all stakeholders understand this important part of 14 the MOU as they were directed by your Board. 15 Again, thank you for giving me this opportunity. 16 And on behalf of the Long Beach Area Chamber of Commerce, 17 we support ARB's efforts to ensure efficienct 18 environmentally-sound transportation of goods. We 19 encourage you to leave the Agreement in place and allow 20 communities to benefit from these reductions over the next 21 three years and beyond. Thank you again. 22 CHAIRPERSON SAWYER: Thank you. 23 BOARD MEMBER LOVERIDGE: Could I ask -- if I 24 could ask, your position is in contrast with the position 25 taken by the Long Beach City Council. What is your PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 118 1 working relationship with the city of Long Beach? 2 MS. NGUYEN: Our relationship with the City 3 Council, we've worked very hard in support of the Port and 4 the Long Beach Airport to help businesses and to continue 5 to improve the economic growth of the city and to improve 6 jobs growth. 7 BOARD MEMBER LOVERIDGE: I understand that's what 8 Chambers do, but your position is different than the City. 9 MS. NGUYEN: Sometimes our position is in 10 opposition to the City of Long Beach Council, because we 11 take a stand on behalf of our 1800 business members of our 12 association. 13 BOARD MEMBER LOVERIDGE: For goods movement to 14 work, it seems to me that we're talking about moving the 15 goods and also environmental justice. The environmental 16 justice position of the Chamber is what? 17 MS NGUYEN: We support helping and assisting and 18 finding out ways to reduce environmental benefits for the 19 city. However, we also need to take into consideration 20 hundreds of thousands of jobs the ports also bring into 21 our city. 22 BOARD MEMBER LOVERIDGE: I just find it vague and 23 unacceptable. 24 CHAIRPERSON SAWYER: Thank you. 25 Bob Lucas. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 119 1 MR. LUCAS: Thank you. My name is Bob Lucas. 2 I'm here today representing the California Council for 3 Environmental and Economic Balance, otherwise known as 4 CCEEB. 5 As I advised you at your hearing in October, 6 CCEEB has reviewed this Agreement in question in depth and 7 its entirety as a whole. And we've concluded that it is 8 in the best interest of the state, and we urge you to 9 allow it to be implemented. 10 CCEEB has historically supported voluntary MOUs 11 which act to achieve emission reductions that would not 12 otherwise occur. This is certainly the case here. 13 Implementation of this Agreement will result in statewide 14 reduction of emissions. And as pointed out by your staff, 15 there will be direct benefits to the communities that 16 surround these rail yards. 17 Rather than reject the Agreement, as some have 18 suggested here, we urge that you consider it as we have in 19 its entirety as a whole, recognize its benefits, and allow 20 it to be implemented. To not do so we believe will result 21 in a rollback of the statewide enforceable reductions. 22 Thank you. 23 CHAIRPERSON SAWYER: Thank you very much. 24 Tom Jordan, and then it will be Jean Roggenkamp, 25 Lupe Valdez, and Mark Stehly. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 120 1 MR. JORDAN: Good morning, Dr. Sawyer and members 2 of Board. My name is Tom Jordan. I'm the Special 3 Projects Administrator with the San Joaquin Valley Air 4 Pollution Control District. The San Joaquin Valley Air 5 District has shared a number of the concerns that our 6 fellow air districts around the state have with this 7 Agreement. Importantly, our ability to continue to 8 enforce under the nuisance provisions the visible emission 9 provisions, how the district will participate in the 10 toxics assessment of the rail yards, and in the valley of 11 particular important is the ability to look at additional 12 rail yards that may be smaller but more approximate to 13 population. And, finally, the release from obligation 14 provisions. 15 The district has reviewed the clarification 16 documents. We've had continuing ongoing discussions with 17 ARB and the railroad staffs, and we've also reviewed a 18 draft implementation agreement with the railroads. And we 19 are satisfied those issues have been addressed enough that 20 we feel comfortable with the Agreement and think it's the 21 right way to go. 22 Additionally, the district feels that a 23 regulatory approach to getting reductions from this 24 category would at a minimum result in significant delays 25 to legal challenges and uncertainty of emission PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 121 1 reductions. And given our situation in the valley and the 2 timeliness that we need emission reductions, we think that 3 a voluntary agreement is the best way to get those 4 reductions in a timely manner, and we support the 5 Agreement. 6 CHAIRPERSON SAWYER: Thank you very much. 7 Jean. 8 MS. ROGGENKAMP: Good morning, Dr. Sawyer and 9 members of the Board. 10 CHAIRPERSON SAWYER: Good to see you. 11 MS. ROGGENKAMP: Good to see you. 12 My name is Jean Roggenkamp, Deputy Air Pollution 13 Control Officer for the Bay Area Air Quality Management 14 District. I'm speaking on behalf of Jack Broadbent, our 15 Executive Officer, who unfortunately couldn't be here 16 today. I appreciate the opportunity to provide staff 17 testimony today. 18 ARB analyses indicate that health risks due to 19 toxic air contaminant exposure in the Bay Area are the 20 second highest in the state second only to in the South 21 Coast. So public exposure to diesel particulate matter 22 from many sources including at rail yards are a really 23 serious concern in the San Francisco Bay Area. We have 24 dense residential populations that are in close proximity 25 to these rail yards. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 122 1 The 20 percent reduction in emissions expected 2 from implementation of the railroad MOUs would go a long 3 way towards improving air quality and public health in 4 these nearby communities and throughout the region. As a 5 staff report before you today indicates, ARB staff and the 6 railroads are implementing the MOU, and the Bay Area Air 7 District has been participating as well. We have taken 8 tours of the rail yards in the Bay Area. We have 9 facilitated the scheduling of community meetings in 10 Richmond and Oakland, and these meetings will happen on 11 February 7th and 8th. 12 Worked closely with ARB and the railroads to 13 develop procedures for handling complaints in the Bay Area 14 and talked with ARB staff about the statewide guidelines 15 for rail yard health risk assessments. We've undertaken 16 these tasks and will continue moving forward in good faith 17 to implement the MOU, because we believe it has benefits 18 for Bay Area communities. We are gaining a better 19 understanding of rail yard operations, and we will be 20 gaining a better understanding of the risks those rail 21 yards pose and the ways to reduce those risks and think 22 those are very valuable. 23 We appreciate staff's efforts to clarify the 24 release clause in the MOU. However, we continue to have 25 concerns about how the release clause could affect PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 123 1 implementation of the MOU, for instance, in the Bay Area. 2 We are investing time and effort to help implement the 3 MOU, and we don't want those efforts to go to waste and we 4 want the benefits of the MOU to be effective. And we're 5 concerned if some of the jurisdictions take action and the 6 railroads decide to walk away from the certain element or 7 elements of the MOU statewide. We continue to have that 8 concern. 9 We had asked at the previous hearing that the 10 parties consider limiting the release clause to only the 11 jurisdiction that adopts some different requirements. 12 And, ideally, that interpretation would have been included 13 in the clarifications before you today and agreed to by 14 the ARB and the railroads. That has not happened. So we 15 still feel that we need and expect assurances from ARB and 16 the railroads that they will continue to work to implement 17 the MOU and work with us to do that in the Bay Area 18 regardless of what other jurisdictions' actions may be. 19 So one area that we are exploring to help provide this 20 assurance is entering into an implementation agreement 21 with the railroads that would clarify the implementation 22 of the MOU in the Bay Area. 23 CHAIRPERSON SAWYER: I must ask you to conclude. 24 MS. ROGGENKAMP: In conclusion, we are moving 25 ahead in good faith to help implement the MOU. We want PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 124 1 the air quality and public health benefits that it has to 2 offer to be realized now and in the future for the 3 residents of the Bay Area. Thank you for the opportunity 4 to comment. 5 CHAIRPERSON SAWYER: Thank you, Jean. 6 Lupe Valdez. 7 MS. VALDEZ: Good morning, Chairman and members 8 of the Board. My name is Lupe Valdez. I serve as the 9 Director of Public Policy and Community Affairs for Union 10 Pacific in Southern California. Previously, I served as 11 the Deputy Executive Officer for the South Coast Air 12 Quality Management District and Public Affairs 13 Administrator for the Southern California Regional Rail 14 Authority, also known as Metrolink in Southern California. 15 I live and work in Southern California. And today I 16 wanted to briefly touch on three issues. 17 I will answer the question of the day, and it's 18 going to take up time. But the father of the Green Goat 19 terminology actually came from Mike Iden, who is our 20 General Director of Car and Locomotive Engineering for UP, 21 also the father of the genset technology. So at least we 22 can put that question I think to rest for the day. 23 First, I wanted to bring to the Board's attention 24 several issues in terms of what I've been involved in 25 personally. I'm in charge of public affairs and community PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 125 1 relations for Union Pacific, a position that previously to 2 July 11th wasn't -- UP did not have a person down in 3 Southern California. What I've done is basically focus my 4 attention on meeting and talking to people on the phone, 5 on the Internet, also with residents in different 6 communities. We are barely scratching the surface on 7 this. What I tried to do is focus on their concerns, try 8 to coordinate the resolution, and try to focus them in the 9 right direction if we cannot assist them. 10 I realize that we are just scratching the 11 surface, and we have a long way to go. But I'm excited 12 and enthusiastic really about the response I have received 13 from people receiving return calls from us that in the 14 past went unanswered. 15 As an example, even working around the 16 communities of Mira Loma, working toward making sure we 17 talk to communities, talk to individuals, particularly the 18 residents that live around our surrounding communities. 19 We have begun talking to community leaders and working 20 with a consultant to look at various ways to lessen the 21 impacts of the yard, especially where they've talked about 22 the gate and the adjacency to the school and athletic 23 field. We are in that process. We hope to have it 24 completed by the end of this year to understand the 25 implications of moving that gate. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 126 1 But we're not waiting for the results of this to 2 improve air quality around the yard. We have stationed 3 the Green Goats, two of them already, at the Mira Loma 4 facility. Again, this will actually have approximately an 5 80 to 90 percent reduction in NOx and PM in that area. 6 You've heard a lot about the gensets that we just 7 announced last week we will be getting in the South Coast 8 basin. That's approximately 60 over the next two years. 9 Thirdly, I ask that the Board keep the MOU in 10 effect so communities statewide can begin to see the 11 benefits of its implementation. Union Pacific has 12 reviewed your staff's efforts to clarify the release 13 clause. We agree with the analysis and support its 14 conclusions. 15 Finally, I have asked the Clerk of the Board to 16 pass out a summary of letters and other support materials 17 from individuals and organizations, including the mayor 18 and assistant city manager of two cities that have 19 California's two largest rail yards within their 20 jurisdiction and from a bipartisan coalition of 24 21 California legislators. They have all requested the same 22 thing: Keep the MOU in place. Let us continue to work 23 with more communities to reduce the environmental impacts 24 of our operations. Thank you. 25 CHAIRPERSON SAWYER: Thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 127 1 Yes. 2 BOARD MEMBER LOVERIDGE: First, I want to thank 3 you very much for your presence in Southern California, 4 and it's been very helpful and very much appreciated and I 5 think what it also says about Union Pacific's readiness to 6 engage Southern California. 7 I want to ask these two questions, and I'm not 8 sure who to ask them. One, the question of why an escape 9 clause. Why not the MOU without it? 10 And the other question, what will be the position 11 of the railroads, assuming adoption of the idling rule by 12 the South Coast? And you don't have to answer that, but I 13 would like to know who I should ask. 14 MS. VALDEZ: Both questions can be referred to 15 Mike Barr, who is also providing testimony today. 16 BOARD MEMBER LOVERIDGE: We'll ask Mike Barr. 17 CHAIRPERSON SAWYER: Thank you very much. 18 Mark Stehly, and then Mike Barr, Mike Rogge, and 19 Dorothy Rothrock. 20 MR. STEHLY: Thank you, Dr. Sawyer, members of 21 the Board. I'm Mark Stehly. I'm the Assistant Vice 22 President of Environment and Research and Development at 23 BNSF Railway. I have four brief points. 24 BNSF urges you to leave the current MOU in 25 effect. We support the staff's clarification of how the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 128 1 Agreement's release clause could not be invoked. We look 2 forward to working with the air districts, especially 3 those that have expressed a lot of interest such as San 4 Joaquin and the Bay Area Districts, to fashion 5 implementation protocols that meet our mutual objectives 6 and ensure successful performance. 7 I want to explain to the Board some of the 8 benefits that California has already seen and will see in 9 the future as a result of the '98 and the 2005 MOUs. And 10 the first sheet is this one. It's in your packet. It 11 shows the level of investment that we and Union Pacific 12 have made. The blue line in particular shows the 13 additional Tier 2 locomotive purchases that are required 14 to meet the goals of the '98 MOU. That was mostly about 15 NOx. The tan lines show the investments driven by both 16 the 2005 and the '98 MOUs. And then the green lines show 17 the current and future investments driven by the 2005 MOU 18 alone. 19 And this is what the chart says to me. The '98 20 and the 2005 MOUs will be responsible for over $260.9 21 million of air quality investments in California, which is 22 more than the 164 million that we're investing in 23 nationwide. And if you look at the chart of 24 non-attainment districts, railroads go through a lot of 25 them. Houston has poor air quality. Dallas has poor air PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 129 1 quality. St. Louis, Denver, Chicago, a number of those 2 places also have poor air quality that need our help. And 3 yet, most of our investment is going to California. 4 By the end of 2007, over 50 percent of all low 5 horsepower units in the South Coast District will achieve 6 over a 90 percent NOx reduction and a similar reduction in 7 PM. So with those switch engines, the low horsepower over 8 50 percent of the units by the end of 2007 will achieve 9 your 90 percent reduction. 10 These investments will benefit most our neighbors 11 who live closest to the rail yards. Please note the 12 column of the far right, rail operations, especially those 13 in the South Coast are subject to more and more stringent 14 requirements than any other mobile source. To me, that's 15 what's doing or exceeding your fair share. 16 Finally, my second chart, which is the blue 17 chart, summarizes the various requirements on rail and 18 other mobile sources as well as their relative 19 contributions to the inventory. Rail requirements are 20 broader than any other mobile source, while our 21 contribution to the inventory is less than any other 22 source. As you can see, MOUs have played a critical part 23 in bringing about air quality improvements from rail 24 operations that could not be achieved in any other way. 25 And, lastly, just an article of general interest. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 130 1 You might be interested in the latest Popular Mechanics 2 article about trains and our advances to continue this 3 most environmentally friendly mode of surface 4 transportation. 5 Thank you. 6 CHAIRPERSON SAWYER: Thank you very much. 7 Mike Barr. 8 MR. BARR: Thank you, Mr. Chair and members of 9 the Board. I'm here for the National Association of 10 American Railroads. And even though the Statewide 11 Agreement just applies to one state, the National 12 Association supports the continued implementation of the 13 statewide MOU for California. 14 The AAR also supports the MOU clarifications in 15 the status report. And to emphasize one vital point which 16 has come up in previous hearings and again today, AAR and 17 its members cannot tolerate a patchwork of different 18 mandates throughout this state or any other state. The 19 rail system won't work that way. They certainly can't 20 agree to both state and local mandates on individual rail 21 yards throughout the state. That's why the release clause 22 is in this MOU. That's why it was in the previous MOU. 23 At the same time, what the railroads prefer is to 24 have the Statewide Agreement carried forward in all of its 25 elements uniformly throughout the state so that if there PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 131 1 is a particular district that wants to take a different 2 course, the release clause does not operate automatically. 3 There's a pause. In particular, if litigation results 4 from that, the release clause doesn't automatically 5 operate. The Statewide Agreement remains in force. Thus, 6 the railroads prefer that course and prefer to comply with 7 the Statewide Agreement, even in those districts. 8 California does face very unique and very 9 challenging air quality problems. We think very strongly 10 that the 2005 MOU, like the previous one, is part of the 11 solution. The UP and the BNSP and the ARB and several 12 districts that you've heard from today are implementing 13 the 2005 MOU. So the National Association urges your 14 Board to support them today by allowing them to continue 15 to implement the 2005 MOU in full and on schedule 16 throughout the entire state in a uniform manner. 17 Thank you, Mr. Chair. 18 CHAIRPERSON SAWYER: Thank you very much. 19 Mayor Loveridge. 20 BOARD MEMBER LOVERIDGE: Thank you for your 21 comment. Could you comment on the relationship to the 22 escape clause and the rule adoption in the South Coast 23 District on idling? 24 MR. BARR: Well, again, the railroads have worked 25 very cooperatively with the South Coast District on these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 132 1 proposed rules. They've had a number of workshops, a 2 number of technical exchanges. There have been visits to 3 the rail yards. There's been a lot of back and forth, a 4 lot of technical comments in particular, which I think 5 have educated both the railroads and the district. And I 6 think the communities have had the full benefit of that. 7 ARB has had copies of it. Really, it's reams of 8 information back and forth. And, of course, it's quite 9 consistent so far in terms of information exchange with 10 the Statewide Agreement. And that's a good thing, and 11 that's something that we promote and agree with. 12 Carrying forward that process to the regulatory 13 stage and actually adopting a regulation is something that 14 we oppose, and we oppose it because of its interference 15 with the statewide and the national system. And in 16 particular, it very clearly enters an area that is 17 preempted by the Intestate Commerce Clause Termination Act 18 and the 1990 Clear Air Act amendments. We think that's an 19 unwise course for this district to take. 20 BOARD MEMBER LOVERIDGE: The other just is, are 21 protocols patchworks agreements -- how do protocols differ 22 from patchwork agreements? 23 MR. BARR: Well, I mean, first of all, the 24 different districts would emphasize different program 25 elements in different portions of the state. I mean, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 133 1 some, as you've seen, are very concerned about making sure 2 that the community involvement is a collaborative process, 3 not only between the railroads and ARB. That would, you 4 know, perhaps interfere with the established relationships 5 that the districts have developed. 6 So that's why the Statewide Agreement itself 7 provides for consultation between the ARB, the railroads, 8 and the local districts on that very important program 9 element. And that's the way it will work in the Bay Area. 10 It's certainly got to be the way it will work 11 constructively and successfully in the South Coast and 12 every other district as well. And yet, the particular 13 needs of each particular district can be unique, as the 14 Executive Officer pointed out. And the particular 15 concerns, at one rail yard, it might be a particular gate. 16 At another rail yard, it might be a particular community 17 that's located nearby. There might be other contributing 18 factors. 19 That's why the Statewide Agreement was put 20 together to allow under a statewide uniform approach, 21 certainly with respect to idling and smoke and diesel 22 fuel, that should be regulated statewide like so many 23 other sources, and also the flexibility to address 24 particular issues yard by yard starting with the ones that 25 are the biggest and the most important. And so it is PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 134 1 consistent -- that's why we think it's a very creative 2 public/private partnership. And it can work throughout 3 the state in every one of these yards. 4 CHAIRPERSON SAWYER: Thank you. 5 Mike Rogge. 6 MR. ROGGE: Dr. Sawyer, members of the Board, I'm 7 Mike Rogge representing Cal Trade. 8 Cal Trade is a coalition of 24-trade related 9 businesses and organizations committed to keeping 10 California competitive in a global economy. Our 11 membership includes goods movement operators, such as 12 ports and terminals, and manufacturers and goods owners, 13 such as manufacturers and retailers. 14 As you know, rail is the most environmentally 15 sound way to move goods and is the key component of the 16 goods movement system within California and throughout the 17 nation. 18 Cal Trade used voluntary agreements such as the 19 CARB/Rail MOU as an important way for federally preempted 20 industries and the state to achieve mutually beneficial 21 goals. Without this key tool, the state will not be able 22 to negotiate tangible environmental and social 23 improvements. Cal Trade believes the staff clarification 24 of the MOU and the Board's changes in the CARB MOU process 25 for future MOUs are helpful. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 135 1 In addition, based on the staff's six-month 2 progress report, it's clear the railroads under the yard 3 MOU have already made significant progress towards 4 implementation, which will reduce emissions around rail 5 yards where it is most needed. Cal Trade believes the MOU 6 should be allowed to continue. Thank you. 7 CHAIRPERSON SAWYER: Thank you very much. 8 Next is Dorothy Rothrock. And then we will have 9 Colleen Callahan, John Sprague, and Amisha Patel. 10 MS. ROTHROCK: Good morning, members. My name is 11 Dorothy Rothrock. I'm with the California Manufacturers 12 Technology Association, here for Jack Stewart who couldn't 13 be here, the President of the Association. 14 Our members include manufacturers who use the 15 goods movement system as well as, you know, members 16 themselves being regulated under California's highly 17 stringent air quality laws. We support the MOU because 18 the question of federal preemption over the control of 19 these emissions make this MOU achieving emissions larger 20 and sooner than could have been required by any of the 21 California regulatory bodies. 22 The CMTA supports and advocates both economic 23 growth and a healthy environment. And we find these goals 24 often require that government and industry work together 25 to find solutions to the environmental challenges. This PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 136 1 railroad MOU represents such a solution, and we urge you 2 to keep the MOU in effect. Thank you. 3 CHAIRPERSON SAWYER: Thank you. 4 Colleen Callahan. 5 MS. CALLAHAN: Good morning. My name is Colleen 6 Callahan, and I'm representing the American Lung 7 Association of Los Angeles County, soon to be called 8 Breathe California of L.A. County. 9 During these past six-plus months, we have 10 submitted via oral and written commentary comments 11 repeatedly expressing our concerns with the MOU. Now as 12 Breath California, we are troubled by what we feel is a 13 lack of clarification on the many ambiguities and 14 deficiencies of the Agreement. In light of the staff 15 report in previous arguments made by our organization and 16 many others, we continue to urge the Board to rescind the 17 MOU. 18 It is very disappointing that ARB staff decided 19 to ignore our concerns when failing to clarify all but one 20 provision of the agreement. As a result, the report 21 leaves unanswered numerous questions about provisions that 22 are subject to multiple interpretations. For example, the 23 MOU states that the railroads agreed to exert their best 24 efforts to limit non-essential idling and to maximize the 25 use of lower sulfur fuel. Are terms such as "best PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 137 1 efforts" and "maximize" defined either in the MOU or the 2 report? The answer is no. These types of ambiguities 3 create loopholes for enforcement and prevent guarantees of 4 real and substantial emission reductions. 5 Furthermore, we believe the goals of the MOU and 6 further much needed reductions can be met through more 7 enforceable efforts, such as some which are already 8 underway, for example, South Coast AQMD, Port of L.A., and 9 Port of Long Beach's Clean Air Programs. At the very 10 least, the MOU will undermine local efforts to address 11 regional air pollution problems. It is because of this 12 poison pill language and other reasons previously 13 submitted that we continue to urge the Board to rescind 14 the MOU. Thank you. 15 CHAIRPERSON SAWYER: Thank you very much. 16 EXECUTIVE OFFICER WITHERSPOON: Dr. Sawyer, I 17 have two quick points. I know we're trying to move 18 quickly through the witness list, but this is the second 19 witness that's said there's no terms in the MOU, and 20 that's not correct. There is an 80 percent penetration 21 requirement for the purchase of low sulfur fuel and they 22 maximize past that point. Likewise with the idling 23 requirement, there's a strict one-hour limit, and it's 24 between 1 and 60 minutes that we're trying to achieve 25 additional idling reductions from the locomotives that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 138 1 don't have anti-idling devices. 2 CHAIRPERSON SAWYER: Thank you. 3 John Sprague. 4 MR. SPRAGUE: Good morning, Dr. Sawyer and 5 members of the Board. My name is John Sprague. I'm the 6 Assistant City Manager for the city of Roseville. I was 7 asked to come to address your Board this morning in 8 regards some of the benefits that local communities might 9 begin to expect from the introduction and use of a 10 mechanism such as Memorandum of Understanding, or MOU. 11 As a bit of background, the city of Roseville, 12 which is located about 20 miles northeast of Sacramento, 13 is home to the largest rail yard in the western United 14 States. We had our yard for -- we'll be celebrating the 15 100th year this year. As such, we are a prime location 16 for freight activity and other rail activity as well as 17 repairs of railroad locomotives and other equipment. 18 We are in the Placer County Air Pollution Control 19 District which has entered into an MOU approximately a 20 year ago with Union Pacific Railroad. This MOU is an 21 outgrowth of a risk assessment study that CARB sponsored 22 and was the lead on which identified key areas of diesel 23 emissions and particulate focuses within our neighborhoods 24 surrounding the rail yard. 25 What we have found in the last year is through PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 139 1 the MOU we are seeing significant efforts towards reducing 2 the diesel emissions within the areas around our rail yard 3 by about 25 percent. That goal is to be attained by 2008. 4 We are seeing that through the introduction of low sulfur 5 fuel, the smart start technology, and also something 6 that's very exciting which I think our Air Pollution 7 Control District Executive Director is going to be talking 8 a little later is other technologies that will actually 9 capture and scrub diesel emissions from locomotive repairs 10 within our yard. 11 So my main purpose for coming here today was just 12 to let you know that the MOU experience that we have had 13 in Roseville has been very successful. And if a statewide 14 MOU can help accelerate the introduction of alternate 15 technologies such as genset, Green Goat, more use of low 16 sulfur fuel, we would like to see that occur on a 17 statewide basis. Thank you. 18 CHAIRPERSON SAWYER: Thank you very much. 19 Amisha Patel. 20 MS. PATEL: Good morning. Amisha Patel with the 21 California Chamber of Commerce here in support for the 22 continuation of this Agreement. We have submitted written 23 comments, so I will just briefly touch upon some of the 24 main points stressed in our letter to you. 25 First, this Agreement is good for California. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 140 1 It's good for California's business, climate, and economy. 2 It encourages the use of new cleaner technologies and 3 strategies by providing investment opportunities for 4 industry. It also sets goals for reducing emissions from 5 locomotives, which is very important to California. 6 Also, the new clarification language in regards 7 to the release clause, this language is very important in 8 order to prevent a sort of patchwork of regulations and to 9 ensure there is consistency in statewide regulation across 10 the board. 11 So for these reasons, we urge you to keep this 12 Agreement in effect and to allow for full implementation 13 so we can see the benefits and so we can achieve the goals 14 set by the Agreement itself. Thank you. 15 CHAIRPERSON SAWYER: Thank you very much. 16 Next will be Jalene Forbis, Paul Van Dyke, and 17 Melissa Sherman. 18 MS. FORBIS: Hi. I'm Jalene Forbis with the 19 California Short Line Railroad Association. Thank you for 20 giving me the opportunity to speak. 21 Just briefly, I'm here in favor of the MOU. I 22 think this is good for our industry statewide. I 23 represent what I refer to as the mom and pops of the 24 industry. And this is going to help overall, because it's 25 giving us an opportunity. As the Class 1s upgrade their PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 141 1 equipment, it's going to give us an opportunity to upgrade 2 some of our equipment in our short lines. And it's going 3 to have even greater reaching impacts than some of you 4 have seen on there in that it's going to give some of us 5 that don't have the funds available to go for the Green 6 Goat technology and some of the others to get some cleaner 7 burning locomotives. And we think you're going to see 8 greater reaching implications for this MOU? 9 CHAIRPERSON SAWYER: Thank you very much. 10 Paul Van Dyke. 11 MR. VAN DYKE: Good morning. My name is Paul Van 12 Dyke. I'm Chief of Staff for Senator Soto. I've been 13 asked to read the following letter signed by 25 14 legislators from northern and central and southern 15 California. Dear, Dr. Sawyer -- the following legislators 16 are Senator Perata, Senator Romero, Senator Bowen, Senator 17 Cedillo, Senator Figueroa, Senator Ortiz, Senator Dunn, 18 Senator Vincent, Senator Soto, Senator Simitian, Senator 19 Alarcon, Senator Migden, Senator Speier, Senator Florez, 20 Assemblymember Goldberg, Assemblymember Saldana, 21 Assemblymember Nava, Assemblymember Coto, Assemblymember 22 Negrete-McLeod, Assemblymember Salinas, Assemblymember 23 Oropeza, Assemblymember Klehs, Assemblymember Chavez, 24 Umberg, and Dymally. 25 "Dear Chairperson Sawyer, on behalf of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 142 1 constituents, we are writing jointly to address 2 some critical issues that remain unresolved 3 regarding the 2005 Statewide MOU between CARB 4 staff and Union Pacific and Burlington Northern 5 Santa Fe Railroad Companies. As you know, 6 continued air pollution from locomotive and 7 railroads is a major health and safety concern 8 for the people we represent. 9 "We understand the California Air Resources 10 Board has previously heard from the public as 11 well as elected officials urging cancellation or 12 amendment of the MOUs to eliminate major 13 problems. Your staff is in receipt of letters 14 expressing their concerns and has chosen to 15 disregard them in the latest staff report 16 prepared for your Board meeting of January 27, 17 2006, in Sacramento. The fact only one 18 termination/release clause was partly addressed 19 by CARB staff, while numerous other ambiguities 20 in the MOU were not addressed, is very troubling. 21 Even so, the so-called clarification of the 22 poison pill provision is seriously flawed. 23 "Unless the MOU is rescinded or the 24 "Termination Clause" removed, we will work 25 through the legislative process to encourage the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 143 1 State Legislature to instruct the California Air 2 Resources Board to nullify the Statewide MOU with 3 the railroads. 4 "We would like to thank you for organizing 5 Public Consultation Meetings and a Board Hearing 6 on the MOU in 2005 which allowed for questions 7 and comments from the public. We plan on 8 following the process to ensure that the interest 9 of the people we serve are protected and air 10 pollution impacts of railroad operations are 11 reduced or mitigated to the fullest extent." 12 It's dated January 24th, 2006, with Senator 13 Martha Escutia's signature. Thank you. 14 CHAIRPERSON SAWYER: Thank you very much. 15 Are there any questions? 16 Mayor Loveridge. 17 BOARD MEMBER LOVERIDGE: Yes, I think it would be 18 very helpful if we could have copies of that document so 19 each member of the Board can receive them. Again, the 20 count of Senators was how many? 21 MR. VAN DYKE: Twenty-five members of the 22 Legislature, and it's half of that, about 13 of them are 23 Senators. 24 BOARD MEMBER LOVERIDGE: That is a large group of 25 elected officials to sign a specific letter. Thank you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 144 1 MR. VAN DYKE: Thank you. 2 CHAIRPERSON SAWYER: Melissa Sherman, and then 3 we'll have Bonnie Holmes-Gen, Fran Inman, and Barry 4 Wallerstein. 5 MS. SHERMAN: Hello, Dr. Sawyer and members of 6 the Board. 7 As a public health agency, the Asthma and Allergy 8 Foundation of America advocates for all who suffer from 9 asthma and allergies in California. We support mandatory 10 regulations which would curb emissions and benefit 11 millions of people who suffer and who will suffer from the 12 MOU's relaxed restrictions. The language in particular 13 does not go far enough to provide real requirements, time 14 restrictions, or risk analysis for railroads. 15 Also, the MOU has another flaw, a flaw which pits 16 local county and other governmental agencies against each 17 other. As Peter Mieras from the South Coast AQMD 18 eloquently stated, the MOU will not deter violations but 19 will instead accommodate violations by the railroads. 20 Lastly, we believe this MOU will destabilize 21 local efforts to address the ever-present air pollution 22 problems and exasperate chronic diseases such as asthma. 23 Therefore, we urge the Board to rescind the MOU. Thank 24 you. 25 CHAIRPERSON SAWYER: Thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 145 1 Bonnie. 2 MS. HOLMES-GEN: Dr. Sawyer, members of the 3 Board, Bonnie Holmes-Gen. I'm representing the American 4 Lung Association of California and also the American Lung 5 Association of Inland Counties and the American Lung 6 Association of Orange County. 7 And I wanted to start out by saying that we 8 appreciate, first of all, the many good efforts by CARB to 9 reduce diesel exposures and public health impacts through 10 control measures like the cargo handling measure that was 11 recently adopted, the cargo handling rule, and your 12 efforts to address diesel emissions from the goods 13 movement sector. 14 Railroad emissions are extremely important from a 15 public health perspective, and we're extremely concerned 16 about the public health burden placed on communities 17 throughout California in terms of the asthma attacks and 18 other lung illnesses, heart attacks, strokes, 19 hospitalizations, emergency room visits, and premature 20 deaths, and other impacts. 21 We gave testimony at your October 27th hearing 22 regarding the multiple concerns that we have with the 23 railroad MOU. And those included our concerns about the 24 process, which I think we discussed at length, a concern 25 about a lack of specific deadlines for -- including PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 146 1 deadlines for producing diesel risk reduction plans and 2 measures, and a lack of specific emission reduction 3 commitments by the railroads. 4 And one of the questions that was put to us at 5 the hearing was, wouldn't you rather see 20 percent 6 reduction in railroad emissions? Why would you oppose 7 this? Because why would you want to give up this 20 8 percent share of emissions that's on the table? And our 9 response had to be that we can't be certain that this 10 Agreement could achieve that level of emission reduction, 11 especially with the uncertainties that are created from 12 the release clause that I know you've discussed at length. 13 We really -- and many of the vague terms that are in the 14 Agreement. 15 We would say a key question before you today is, 16 how are you going to be sure that these emissions 17 reductions are going to be achieved? How are you -- as 18 you're considering voting on this today, how are you going 19 to be sure that that level of reduction will be achieved? 20 The chart did look very impressive in terms of the mix of 21 measures from the MOUs and other measures, diesel 22 measures, that could reduce a large percentage of diesel 23 emissions. 24 But what are you going to do if it becomes clear 25 those emissions reductions are not being achieved? I PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 147 1 mean, this railroad MOU could take effect for a very long 2 time, as you're aware. What will be your role if this 3 does go forward? What are you going to do if those 4 reductions are not being achieved? And I think those are 5 big questions looming before you. 6 And I also wanted to mention from the October 7 27th hearing you heard testimony from several state 8 legislators themselves at that hearing, and the 9 legislators that you heard from clearly stated that this 10 MOU would discourage state legislation on railroad 11 emissions. In fact, I think the words that were used were 12 that this MOU would create a chilling effect on state 13 legislation. And I think that needs to be remembered as 14 you're considering your vote today. 15 So our bottom line is that we remain opposed to 16 the MOU. We believe the Board would be better served by 17 addressing railroad emission reductions through regulatory 18 regulations, requirements, and programs that are developed 19 through a full public process. Thank you for your time 20 and attention. 21 CHAIRPERSON SAWYER: Thank you very much. 22 Fran Inman. 23 MS. INMAN: Good morning. Fran Inman, Senior 24 Vice President for Majestic Reality and also speaking 25 today on behalf of the Los Angeles Area Chamber. Thank PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 148 1 you for this opportunity, and it's difficult to have 2 something fresh to say at this time of the hearing, but 3 just wanted to encourage you with the MOU. We feel that 4 to have the solutions as quickly as we need them, we all 5 do need to come together. And we think the voluntary 6 agreement is our best hope for reaching those goals as 7 quickly as possible. So it's our opinion that if we all 8 don't work together, we're not going to get where we want 9 to get. So we'd encourage you to support the MOU. 10 CHAIRPERSON SAWYER: Thank you very much. 11 Dr. Wallerstein. 12 DR. WALLERSTEIN: Good afternoon, Dr. Sawyer and 13 members of the Board. I had hoped not to testify today, 14 but I felt the need to do so after listening to some of 15 the testimony. 16 As you weigh this difficult decision, I would ask 17 you to think about your general practice in suggested 18 control measures for ozone attainment, like house paints, 19 air toxic measures like backup diesel generators, or 20 actually your resolution action relative to some proposed 21 fleet rules for the South Coast wherein that resolution 22 you asked us to do more. In every case, we're allowed to 23 do more. In most cases we're encouraged to do more and in 24 fact have, because our air quality demands and needs 25 demand it. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 149 1 The termination clause, as you've heard time and 2 time again, discourages that and puts up roadblocks. And 3 just this week, our staff is working jointly with the 4 staff from the Port of Los Angeles and the Port of Long 5 Beach and some community members on a clean air plan for 6 the Port of Los Angeles, got into a debate about whether 7 there should be railroad measures in that plan. They were 8 in the draft that we received, and they were taken out. 9 And now hopefully they're going back in, but it revolves 10 around how people look at this termination clause and what 11 they believe it means. So it isn't hypothetical. It's 12 happening already. And it happened this week with both 13 our staffs present. 14 We would also ask you again to consider that for 15 your Airport Ground Service Equipment MOU, the airline 16 industry walked away. You lost a ZEV mandate component to 17 it, and we were saddled with 1.8 tons additional NOx and 18 hydrocarbon emissions in the year 2010. While we may make 19 that up in the long run, there is an impact. There was a 20 delay. And it's the same sort of termination clause. 21 Don't believe the railroads when they tell you 22 they're not a major source for us. Their emissions are 23 comparable to our reclaim program, we say it over and over 24 again, all of the refineries, power plants, cement kilns, 25 and 350 largest stationary sources taken together. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 150 1 Our idling rule doesn't say 60 minutes. It says 2 30 minutes. Ours is based on emissions testing that we've 3 conducted, data that wasn't available to your staff when 4 they decided that the 60-minute cut point was the right 5 cut point. 6 We would also finally ask you to think very long 7 and hard about the fact that the state, this 8 administration, may be proposing as much as $7 billion in 9 public funds for rail infrastructure which has direct 10 economic benefit to the railroads. Your staff didn't have 11 the advantage of that in its negotiation. I think if we 12 went back to the table with the railroads, what you would 13 find is with that much public money, or a small fraction 14 of that, we would be able to get anti-idling devices that 15 pay for themselves in two to three years. We'd get a 16 greater use of low sulfur fuel that you could have 17 mandated, but didn't do so under the threat that they 18 wouldn't go ahead and purchase the fuel. And thirdly on 19 the smoking locomotive provisions, why not budget a couple 20 extra ARB field enforcement personnel? Go write a few 21 tickets, and then you'll be signing agreements like the 22 local districts which will be equivalent or better than 23 what is provided in this MOU. 24 So we would really ask that you rescind it or at 25 minimum take out what we term the poison pill obligation PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 151 1 release clause. Thank you. 2 CHAIRPERSON SAWYER: Thank you, Barry. 3 Kirk Marckwald. And this is the final request to 4 speak that I have. 5 MR. MARCKWALD: Good afternoon, Mr. Chairman and 6 members. My name is Kirk Marckwald. I'm representing the 7 California Rail Industry here today. And just a few 8 thoughts. 9 Basically, there are two types of complaints you 10 all have heard about the MOU. First, several process 11 complaints which this Board has already dealt with. And 12 secondly questions about the release clause. And the talk 13 about how the release clause might play in the future is 14 essentially a hypothetical one. Who might do what to 15 whom? What another party might do. Would there be 16 litigation? These are basically unknowable. In time, we 17 may see if one party does something and another does, then 18 you will know whether or not the release clause is 19 problematic. But essentially the parties who are against 20 this Agreement have basically said you shouldn't go 21 forward. That is a hypothetical argument. 22 But what is not hypothetical, what is not 23 hypothetical is that the public officials, elected and 24 appointed, of the two largest rail yards in this state 25 have said go forward. We think there's some benefits PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 152 1 here. 2 Secondly, while the 25 legislators who were just 3 talked about as you well know and in the packet in front 4 of you, there are another 24 legislators, and I might add 5 a bipartisan collection of legislators who have said, no, 6 go forward with this MOU. We think it makes sense. 7 Another thing that's not hypothetical is due to 8 the MOUs that, in fact, 50 percent of the fleets in 9 Southern California are going to meet the 80 to 90 percent 10 reduction in NOx and in particulate matter. There's no 11 other mobile source fleet, I would suggest, that in such a 12 short period of time is going to move so quickly. And 13 it's due in large part to the '98 MOU and the 2005 MOU. 14 What is not hypothetical is two major air 15 districts have said, you know, we think there's enough in 16 this Agreement that we should go forward. We should go 17 forward now. We have some particular concerns. We want 18 to talk more about those concerns. And the railroads had 19 said, yeah, let's see how that works. 20 And another thing that's not hypothetical is the 21 major studies that have been done by the NRDC and Pacific 22 Institute about what things ought to happen around 23 locomotives. And I've sent a chart around that summarizes 24 that and how the MOU comports with that. It's very clear 25 that this MOU contains the very elements they suggested PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 153 1 should be in it. 2 So if you set it aside, you lose the opportunity 3 to get these reductions right now. And for what? Because 4 something hypothetically might happen down the road? 5 There's a much better way for you to proceed. That is to 6 leave it in place. Call us back in six months, or call us 7 back in a year and say, how is it going? The first part 8 is promising, is it still more promising? Or has the 9 release clause been used in such a way that you're 10 concerned about? And I'm sure air districts or community 11 groups or environmental justice advocates will be in front 12 banging on the table saying, look at how this worked. 13 But you don't know that today. And if you choose 14 not to move forward today and leave it in place, you will 15 be foregoing the very emission reductions that early 16 compliance has been able to be achieved. So you can have 17 before you all the choices in the future and you won't be 18 shadowboxing about what might happen. You will, in fact, 19 be looking at a specific set of facts, the same kind of 20 facts that you were looking at in the staff presentation 21 this morning of the concrete non-hypothetical advances 22 that have been made in reducing emissions around rail 23 yards and urging and drawing new technology into 24 California. Thank you very much. 25 CHAIRPERSON SAWYER: Thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 154 1 Mayor Loveridge. 2 BOARD MEMBER LOVERIDGE: A question, I was 3 reading over the report from Roseville which looked like 4 there was a kind of MOU and some very good things worked 5 out between the Union Pacific Railroad and the city of 6 Roseville, which again is a separate agreement. Help me 7 again why we need a release clause. Why can't we move 8 forward together without the release clause, given the 9 fact you have these number of agreements. The Bay Area 10 District wanted to have their own protocol. Why do we 11 need an escape clause given the seemingly success of 12 working out agreements with different air districts? 13 MR. MARCKWALD: Well, fundamental to the 14 railroad's need to operate seamlessly across jurisdictions 15 is a common set of rules. And that common set of rules in 16 terms of the MOU is embodied in the MOU. There are at 17 least 15 or 20 air districts that railroads run through. 18 They have unified crew. You can't instruct the crew -- 19 well, in the San Joaquin you need to have the anti-idling 20 device set at ten minutes, but down here it can be 15. 21 You can't say, well, here's a fueling regulation in the 22 South Coast, but it's a different one in the Bay Area. 23 That is inefficient. And that would not lead to 24 reductions. 25 The reductions are embodied in the central MOU. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 155 1 We are very clear that there are special needs not going 2 to the core of the MOU, but just specifically the way 3 districts are set up and certain concerns they have. And 4 we have been clear. We are interested in finding ways to 5 meet our mutual objections, which is a clear performance 6 of this MOU going forward. And that's I think the way you 7 address the specific local issues, not by allowing this 8 cookie cutter to be created. 9 BOARD MEMBER LOVERIDGE: CAPCOA had the idea that 10 at a minimum the release clause should be only applied in 11 the jurisdictions that take an action that would trigger 12 the release option. Your take on that? 13 MR. MARCKWALD: I think again it's one of these 14 hypothetical questions of people want to see problems when 15 no problems have been presented to you yet. You know, if 16 in fact something comes along and you have five air 17 districts in front of you and six months from now saying, 18 we're really frustrated. We couldn't get it this way or 19 that way, then you'll decide whether having this 20 comprehensive Statewide Agreement that's pulling these 21 technologies into this state earlier makes sense or not. 22 We clearly believe it makes sense. We think the 23 staff report today demonstrates there have been 24 significant improvements right now just because it's been 25 on the books for six months. But in the future, you all PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 156 1 can have a different point of view. But we would 2 certainly suggest today there's not been one factual issue 3 that is put before you that would lead you to believe that 4 necessarily the way people have hypothetically interpreted 5 the release clause is true. 6 CHAIRPERSON SAWYER: Supervisor DeSaulnier. 7 SUPERVISOR DeSAULNIER: Thank you, Mr. Chairman. 8 First off, I want to say I have a great deal of 9 respect and I consider the speaker a friend. 10 But my biggest problem, as you know, Kirk, has 11 been the process problem. And I don't think -- first let 12 me say, if you're including the Bay Area Air Quality 13 Management District in support of this, I think Jean 14 clearly stated it was coming from the Air Pollution 15 Control Officer as a member of that Board. We haven't had 16 a discussion or taken a vote on that or given direction; 17 correct? 18 MR. MARCKWALD: So noted. 19 SUPERVISOR DeSAULNIER: So the process 20 question -- and I don't consider this a hypothetical, 21 because these rail yards are going to continue to be where 22 they are obviously. And, unfortunately, disadvantaged 23 communities are going to continue to be around them. So 24 how do you correct that, given what Dr. Burke said which 25 just intuitively I share. How do you, representing the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 157 1 railroads, and how do the railroads, given the history, go 2 out and change that given the damage that's happened? 3 MR. MARCKWALD: I think that there are two 4 things, Supervisor DeSaulnier. First is you leave the 5 Agreement in place. So you allow the community groups and 6 the railroads to begin -- for those community meetings 7 that haven't happened, to begin those dialogues on a case 8 by case basis. And I think as Lupe Valdez suggested, she 9 understands she and her counterparts have a long hill to 10 climb and to do some of the repair and to do some of the 11 trust building. 12 But by virtue of getting out there in doing a 13 common set of health risk assessments, of holding those 14 community meetings, of finding ways that you in fact can 15 reduce the risk, I think people will be reassured. I 16 think that the chart that Mr. Scheible put up this morning 17 demonstrates that already -- and maybe the community 18 doesn't understand this. And we probably have done a bad 19 job in telling our side of the story. But that chart 20 tells a very positive side of the story. That based on 21 what the regs you've already adopted and the two MOUs you 22 already have in place, you know, already risks have been 23 reduced 65 percent. Can it be more? Absolutely. Is it 24 acceptable for locomotives to idle for four hours behind 25 somebody's home? Absolutely not. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 158 1 But that's what Lupe and her counterparts are now 2 paid to do. And she will go pillar to post with 3 environmental justice groups, local elected officials, 4 handing out her cell phone. And you should hold her and 5 the railroads and the Association accountable if we can't 6 give you, you know, a better progress report a year from 7 now. But if you don't let us try, we're going to be 8 stripped of the ability to even move forward of that in 9 the context of a good effort that I think has been put 10 together between the railroads and your staff. 11 SUPERVISOR DeSAULNIER: If this goes forward, I 12 hope that proves to be true. But I would say that the 13 people in the neighborhood I think would have had the 14 opposite response, that they would have liked to have had 15 the opportunity to try beforehand. So that's my 16 difficulty. Thank you, Kirk. 17 MR. MARCKWALD: I understand. Thank you. 18 CHAIRPERSON SAWYER: That concludes the public 19 testimony. I'd like to thank the speakers for their clear 20 and concise presentations. 21 Ms. Witherspoon, does the staff have any comments 22 on what we've heard? 23 EXECUTIVE OFFICER WITHERSPOON: I think we'll 24 just wait for Board member questions. 25 CHAIRPERSON SAWYER: Okay. Since this is not a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 159 1 regulatory item, it's not necessary to officially close 2 the record. But this clearly brings us to the conclusion 3 of this issue of the 2005 MOU. And at this point we need 4 to decide as a Board what to do and to move on. So if 5 we're agreeable, let's move into that phase. Is that all 6 right? Good. 7 Let me make a few comments and observations. 8 Your previous hearing, you heard a great deal of 9 testimony, and we've heard more today. And both occasions 10 I appreciate the information that's been brought forward 11 to us. 12 The railroads create an important public health 13 problem. We value the input of all of you, and we want to 14 do our job to clean the air and reduce the risks to public 15 health. Clearly, the process by which this has all 16 happened since last June could have been done better. I 17 believe that the Board has really dealt with this quite 18 well for the future. But nonetheless, we are where we are 19 because the MOU is negotiated under different rules. 20 My number one concern about the MOU is that it 21 doesn't go far enough, that I believe that as the 22 technology develops, that there will be opportunities to 23 get further reductions. We need certainly more than the 24 90 percent emissions which we aren't really guaranteed by 25 this, but we certainly are working for. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 160 1 These issues were not on the table last June when 2 the staff negotiated the MOU. What was available to them 3 was a short-term 20 percent reduction in particulate 4 emissions. I've not heard anything in today's testimony 5 that would provide an alternative plan to us at this point 6 that would allow us a greater reduction over the next 7 three-year period. If it turns out there are new 8 opportunities, then I believe that we have the option to 9 push ahead with that as they become available to us. If 10 it turns out the MOU is not working, we have the 11 opportunity to withdraw from it. 12 I'm not really persuaded that the Statewide 13 Agreement is preventing other entities from taking action 14 to reduce railroad emissions. The South Coast District is 15 proceeding with rulemaking on idling next week as we've 16 heard, and that will certainly be a rapid test of how the 17 MOU does or does not interfere with their ability to do 18 their job. The South Coast has also already adopted a 19 health risk assessment rule, and the Statewide Agreement 20 did not stop them from doing that. 21 It is my understanding that the Port of 22 Los Angeles has been very forceful about mitigation 23 measures that it expects to see at the near-dock rail 24 facilities that have been proposed by Union Pacific and 25 the BNSF Railway. They appear to have their permitting PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 161 1 issues well in hand. 2 Which brings me back to the Agreement itself. 3 The Board's options today are pretty much the same as they 4 were at your October meeting, which I did not participate 5 in, of course. We can ratify the Agreement, direct the 6 staff to rescind it, or take no action, which would leave 7 the Agreement in effect. 8 My personal inclination is to take no action, 9 leaving the Statewide Agreement in place and obtaining the 10 short-term reductions which it provides. But I'm 11 interested in your views and how we move from here. And, 12 therefore, I look to your guidance and to the debate which 13 we will have at this point. 14 I believe that the Executive Officer entered into 15 negotiations with the railroad in a good faith effort with 16 full authority to sign the Agreement. I personally 17 believe that we should respect her judgment about what was 18 possible at the bargaining table six months ago. I'd much 19 rather debate and spend our efforts on where we're going 20 to go next in further reductions in locomotive emissions 21 control. 22 To reach our 90 percent plus target for 23 particulate oxides of nitrogen, we need to have additional 24 actions. There are technical questions to resolve 25 strategic questions, legal questions, and fundamental PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 162 1 issues about who should pay for what, particularly in 2 light of the coming Governor's proposed $1 billion bond 3 for air quality mitigation related to goods movement. I 4 think that's where our next major area of action will be 5 and where our input will be very critical to assure that 6 these proposed large developments in goods movement occur 7 with stringent consideration to air quality issues. 8 But now we need to resolve the matter before us 9 before we can go on. I now would like to call upon you, 10 my colleagues, starting from my right with Supervisor 11 DeSaulnier. 12 SUPERVISOR DeSAULNIER: Thanks, Mr. Chairman. Do 13 we need to do ex partes? I have a list in front of me. 14 ACTING GENERAL COUNSEL JENNINGS: I think that 15 would be appropriate. 16 CHAIRPERSON SAWYER: Let's do that at this time. 17 Why don't you start. 18 SUPERVISOR DeSAULNIER: For the record, on 19 Wednesday, January 25th, I met in my office in Concord, 20 California with Mike Barr and Kirk Marckwald. We just had 21 a discussion consistent with testimony and questions 22 today. 23 I also had a phone call on that same day with 24 Barry Wallerstein from South Coast Air Pollution Control 25 District and Jared Ficker from California Strategies, a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 163 1 consultant to the South Coast Air District. 2 On Thursday, I had a telephone conversation with 3 the Modesto Avila Coalition including Rachel Lopez, 4 Marshella Knott, and Jesse Marquez again consistent with 5 their testimony today. 6 BOARD MEMBER D'ADAMO: On January 24th, I 7 participated in a conference call with BNSF representative 8 Mark Stehly. 9 On Wednesday, January 25th, a conference call 10 with Modesto Avila Coalition representatives, Marcella 11 Knott, Syliva Befancourt, and Alicia Varges. 12 And then today I received a series of voice 13 messages from Jared Ficker with California Strategies 14 representing the South Coast Air Quality Management 15 District. 16 BOARD MEMBER KENNARD: I have no ex parte 17 communications. And as a matter of my own personal 18 policy, I've chosen not to speak with anyone outside of 19 the context of this meeting, because I feel it's much more 20 valuable for me to understand both sides of any issue in 21 the context of hearing both sides at the same time. 22 CHAIRPERSON SAWYER: On January 9th, I met with 23 Kirk Marckwald and Michael Barr in my office, and we 24 discussed issues comparable to what they presented today. 25 On the 18th of January, I participated in a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 164 1 teleconference with the South Coast Air Quality Management 2 District that included Barry Wallerstein, Peter Greenwald, 3 Chung Liu, Oscar Abarca, Mike Harris, and Pom Pom Ganguli. 4 And on the 25th of January, I had a telephone -- 5 what we discussed at that time was comparable to what they 6 presented today. 7 On the 25th of January, I had a telephone 8 conversation with Bonnie Homes-Gen, and the discussion we 9 had was comparable to what she presented today. 10 BOARD MEMBER RIORDAN: Thank you, Mr. Chairman. 11 I met with Mike Barr and Kirk Marckwald on 12 Friday, January 20th. And what we discussed very much 13 mirrored the testimony that both gentlemen gave today. 14 And that concludes my ex parte. 15 BOARD MEMBER LOVERIDGE: Sounds like Mike Barr 16 and group were on tour. Likewise, I met with them on the 17 20th of January. Also a number of conversations with 18 Barry Wallerstein. 19 SUPERVISOR PATRICK: And on Wednesday, January 20 25th, I met with Mark Stehly from BNSF, and I had several 21 discussions with staff from the valley air districts as 22 well. 23 CHAIRPERSON SAWYER: Thank you very much. 24 Let's return to Supervisor DeSaulnier, and we'll 25 discuss the issue. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 165 1 SUPERVISOR DeSAULNIER: I'm sorry. I'm a little 2 off track. Pardon the pun, but just the idea of Mike Barr 3 on tour seems a little surreal to me. I can't imagine him 4 with a guitar and a Hawaiian shirt on. 5 Well, this issue is a tough one. I think I sense 6 the strain coming in here, and it pains me both the 7 organization and personally. I think Catherine and Mike 8 are two of the finest public servants I've ever had to 9 deal with, and I'm sure they entered into the Agreement 10 with the full expectation they were doing the right thing. 11 So it's painful for me to disagree with them. 12 I'm a believer in process. I think it's 13 extremely important, particularly when it comes to 14 communities that are economically historically 15 disadvantaged. I hope that if this stands that Kirk and 16 all of the parties, you're going to have a lot of work to 17 do. And I hope your successful. 18 But I couldn't support it, because I think it was 19 flawed to begin with. I to some degree don't understand 20 fully why the railroads couldn't have continued to do the 21 good work they're doing, certainly the good will and 22 respect the community expects as they go ahead and 23 implement this on their own and then go ahead in those 24 discussions. And perhaps there would have been more. But 25 from my point of view at least, that would have been less PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 166 1 work and less disruptive and also would have created more 2 good will with their neighborhoods than what I'm afraid 3 we're going to go through when the South Coast goes ahead 4 with its action next week. 5 With those comments, I hope whatever the Board 6 decides to do, it ends well. But I certainly hope that 7 the Board at least takes up Kirk's offer that they come 8 back here in six months. But I wouldn't support going 9 ahead and either not addressing it or implementing the 10 MOU. 11 Thank you, Mr. Chairman. 12 BOARD MEMBER D'ADAMO: Well, I think we're in a 13 very awkward position here, and it's not due to any 14 intentions of staff to put us in this kind of situation. 15 Because I agree with what Supervisor DeSaulnier just said 16 and many others, and that is that the Executive Officer 17 and staff went into these negotiations with very good 18 intentions. And, in fact, we're seeing we're already 19 benefiting from some of the emission benefits. Those 20 benefits are real. They're happening now. And I think we 21 all want to see it continue to happen. It's just a matter 22 of how we're going to get there. 23 I share Supervisor DeSaulnier's process concerns, 24 and I think that the Board has rectified that for future 25 agreements. Unfortunately, we're not in a position to go PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 167 1 back and cure what's already been done. What's before us 2 today, the awkwardness, is an up or down vote. And that's 3 why I do appreciate the Chairman's suggestion that we 4 perhaps consider a no-action. When I first heard about 5 that I thought, well, that's ridiculous. It just prolongs 6 this whole debate and doesn't give any strong clarity to 7 the issue. It also looks like we'd be ducking. 8 However, the more I think through the no-action 9 alternative, that's where I feel the most comfortable, 10 because a vote to ratify I think would be fully embracing 11 the Agreement. Although I embrace parts of the Agreement, 12 I'm very uncomfortable with the poison pill. And I'm also 13 uncomfortable with the process that's occurred. 14 A vote to reject it means that we're not going to 15 be seeing any of those emissions reductions for a long 16 time. And we have to be realistic about how long it will 17 take for regulation and litigation. We've seen it in 18 other regulatory items where preemption is an issue, and 19 I'm just not prepared to wait, and I think the public is 20 not prepared to wait. 21 So a no-action I think is an appropriate way to 22 go, because it also can send a message to the railroads 23 that we mean business about this and we are going to be 24 watching things very closely. I think it should come back 25 before us within an appropriate amount of time. I'd be PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 168 1 curious to hear about staff's opinion as to when it should 2 come back. 3 And then as I look through the document again, 4 the clarification of the release clause, I'm just now 5 realizing we can swallow the poison pill ourselves at any 6 point if we're uncomfortable with how things are going. 7 We don't have to wait for litigation from the South Coast. 8 If we're uncomfortable and we think the railroads are not 9 negotiating in good faith, then it should come back to us, 10 and at that point we have a whole array of options, not 11 just up or down on an MOU. 12 EXECUTIVE OFFICER WITHERSPOON: Would you like to 13 hear a response to the report back interval? 14 BOARD MEMBER D'ADAMO: Sure. 15 EXECUTIVE OFFICER WITHERSPOON: We already 16 forecasted it in the progress report for you what we 17 expect to happen by June of this year. And so unless that 18 does not happen, I would recommend we come back in one 19 year with what happens in the balance of the year. But 20 we'll come back sooner if something goes awry. 21 BOARD MEMBER D'ADAMO: That seems appropriate. 22 And I would also suggest that staff work closely with the 23 districts. There may be all kinds of things that could be 24 done at the district level that weren't envisioned in the 25 MOU that would be consistent with the MOU. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 169 1 And I'd asked Mr. Jennings earlier about a series 2 of hypothetical cases in which the release clause from our 3 perspective should not be triggered. Well, if we think it 4 shouldn't be triggered, then we ought to just continue to 5 put pressure on the railroads at the district level. 6 And since I'm speaking again, I think it's 7 important also -- we had a report yesterday about all of 8 the activities that could be coming up within the next 9 year's period. And the one that really stands out is the 10 Tier 3 federal regulations, the proposed federal 11 regulations. And I think we ought to be spending time not 12 on bickering about this, but on the next step. What can 13 we do to actually get those regulations adopted? Because 14 that's going to make a big difference. And then also the 15 next round of agreements that staff had alluded to 16 regarding accelerated locomotive engine turnover. 17 BOARD MEMBER LOVERIDGE: I just want to 18 understand why June is not a good date as opposed to a 19 year from now. Because it seems to me -- 20 EXECUTIVE OFFICER WITHERSPOON: We can come back 21 whenever you'd like. I'm just saying we already 22 forecasted for you what the placement of idling devices is 23 supposed to be by June. That's in our progress report. 24 And so I would suggest that we come back if we don't hit 25 those marks. But if we do, bring you a progress report PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 170 1 when we're facing the next round of activity we haven't 2 talked about today. 3 But we can come back any time you like. There 4 just won't be a lot new to say in June if everything goes 5 according to plan. We will have had community meetings. 6 We can tell you about those. They will have finished more 7 of the idling devices. And we'll have a fuel purchase 8 report. 9 BOARD MEMBER LOVERIDGE: I have no idea where the 10 rest of the Board is, but I really feel strongly in favor 11 of coming back in June, six months. 12 CHAIRPERSON SAWYER: Let me clarify this a little 13 bit. Will there be a written report in June on the 14 progress? 15 EXECUTIVE OFFICER WITHERSPOON: We can do a 16 written report. The railroads have to give us written 17 materials, and we can turn that into a written report to 18 you just like we did today. 19 CHAIRPERSON SAWYER: Well, I think we should hear 20 back in six months. How we do it, whether it's simply a 21 written report or whether it be an agenda item, I leave it 22 up to my Board members. 23 EXECUTIVE OFFICER WITHERSPOON: Well, how about 24 this. We'll send you a written report. And then if you 25 wish us to come in and do a public hearing, we will. How PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 171 1 about that report? 2 CHAIRPERSON SAWYER: Is that agreeable? 3 EXECUTIVE OFFICER WITHERSPOON: Sounds like a 4 plan. 5 CHAIRPERSON SAWYER: Okay. Please. 6 BOARD MEMBER KENNARD: I have a question for 7 staff. And then based on that, I'd like to share my 8 perspective. 9 Jean Roggenkamp had alluded to a possibility, and 10 I want to just confirm that you had explored this with the 11 railroads. And that was the release clause would be only 12 applicable to the jurisdiction that had imposed their own 13 regulations and not statewide. 14 EXECUTIVE OFFICER WITHERSPOON: If they invoke 15 release, that would be certainly one of the first things 16 we would discuss. First, we would try to persuade them 17 not to. We would try to understand what was problematic 18 for them. And we would try to minimize the extent of 19 release for the rest of the state. 20 BOARD MEMBER KENNARD: So this Agreement does 21 afford you the opportunity to discuss this possibility? 22 EXECUTIVE OFFICER WITHERSPOON: Yes, it does. 23 BOARD MEMBER KENNARD: First of all, I'd just 24 like to acknowledge and voice my appreciation for everyone 25 who came, not just today, but twice. I think it's an PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 172 1 enormous commitment on the part of both sides to come and 2 voice their concerns one way or the other relative to this 3 very I think difficult situation that we're in today. 4 Second, as many have articulated, I think it's a 5 tremendous tragedy that we find ourselves in this 6 predicament in the first place, pitting our organization 7 against the local districts, when fundamentally we were 8 all working toward the same goals. So I think it's really 9 a tragedy. And I hope we don't find ourselves in this 10 situation again going forward. 11 Third, I think it's obviously very unfortunate 12 that we didn't undertake the community input process that 13 so many have alluded to. And this negligence tainted the 14 process that might otherwise have been a very positive one 15 had we undertaken this. 16 However, I do appreciate Catherine's public mea 17 culpa. And I'm sure she has privately apologized for any 18 negligence on the part of staff. 19 So that being the case, I'm from Southern 20 California. And I do have a particular sensitivity to the 21 issues of South Coast. However, we are a statewide 22 organization. And many other local districts have 23 embraced this Agreement, have supported it, and have put 24 into place some very important initiatives that will be 25 helpful to them. And given that, this doesn't prevent any PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 173 1 of the local districts from going forward. And although 2 I'm sympathetic to the theory that maybe the Statewide 3 Agreement may thwart the local districts going forward, I 4 don't think that's been tested yet. And I think we 5 certainly have an opportunity at this Board level to 6 rescind the Agreement, should we feel that there's an 7 overriding sentiment that this Agreement is thwarting any 8 further progress at the local level. 9 So I think fundamentally we have no option but to 10 go forward with this Agreement. I would actually support 11 a ratification but for the fact the community process was 12 not as we would have otherwise intended. And I don't want 13 to in any way endorse that by ratification. And I do 14 think if we do nothing relative to this Agreement and we 15 rescind it, that we've done nothing for the benefit of the 16 state and arguably for the local districts as well. 17 That's where I'm standing today. 18 CHAIRPERSON SAWYER: Thank you. 19 Ms. Riordan. 20 BOARD MEMBER RIORDAN: Yes, Mr. Chairman. 21 I think I'm far more optimistic than many in this 22 room about the MOU. And perhaps it's because I do believe 23 companies can change. The railroad representatives have 24 committed to make their greatest effort to reach out to 25 the community, to reach out to air districts, and to work PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 174 1 the problems that are inherent in each of those areas. 2 You know, a lot can be said about what if, what 3 if. I still believe you've got to actually see the real 4 time response. And that's what I feel very strongly 5 about, as I will agree with you no action is fine. I 6 would be willing to ratify. I, like Ms. D'Adamo, am not 7 willing to wait for litigation to solve our air quality 8 problems. You don't solve air quality problems in court. 9 It seems to me we need to go forward. I feel we have a 10 very strong commitment from the persons and the companies 11 that were represented in our MOU. I believe that it's a 12 good MOU. And we need to give it a chance. 13 CHAIRPERSON SAWYER: Thank you. 14 Mayor Loveridge. 15 BOARD MEMBER LOVERIDGE: My position would be to 16 rescind, if that would be a motion. 17 Some comments. The first is the process, and I 18 don't know if we need to repeat I think this sort of 19 general judgment that it was flawed and didn't work, and 20 you saw the aftermath of why it didn't work. And the word 21 tragedy is probably not overstated in terms of the kind of 22 exchanges. 23 Those who were in El Monte, I don't know if I've 24 been to that many public hearings with that many people 25 with that passion expressed about what's taking place in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 175 1 terms of air quality. 2 I am disappointed in terms of the clarification 3 which I thought we were asking for in El Monte, 4 particularly the issues South Coast raised and other 5 people raised that we didn't respond in the kind of 6 advanced Q and A way so we could understand, as opposed to 7 receiving it the day of Board meeting. 8 I think the Dr. Sawyer's comments are well taken, 9 too, that this is not a document that should be fixed. 10 But we will need to look at it as we understand additional 11 reductions may be possible through technology. I think 12 what the document has done is bring the railroad to the 13 table in a very visible way. 14 I'm still puzzled by the release clause and what 15 it represents and would like the release clause to go out 16 of the Agreement. If we take no action, I do want to see 17 this back in six months. And I personally would like to 18 see it -- rather than be a private report that only a few 19 see, I think it should be a public report that everybody 20 sees. 21 EXECUTIVE OFFICER WITHERSPOON: We're having it 22 posted on the web. I didn't mean for it to be private. 23 BOARD MEMBER LOVERIDGE: I understand that. I 24 think it should be an opportunity for people to make 25 comments. I would prefer a public meeting. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 176 1 CHAIRPERSON SAWYER: Supervisor Patrick. 2 SUPERVISOR PATRICK: Well, I think that we've 3 beaten up the process enough. It wasn't a good process. 4 It's not a process that I would want to follow in the 5 area, you know, with the folks that I've been elected to 6 represent and so forth. But I think at some particular 7 point you have to set that aside and you have to go, well, 8 what are we doing to get out of this? And in many air 9 districts, 20 percent reduction is significant. In fact, 10 I would say it's significant in all air districts. And so 11 I think it's very important that we move forward with 12 this. 13 I think there will be an opportunity for us, and 14 I agree that we need to have, you know, a report back on a 15 frequent enough basis that we know the progress that's 16 been made. We do have the ability to say, huh-uh, this 17 isn't meeting our needs. We're going to do things in a 18 different way. 19 But I think, like Ms. Riordan, being the 20 perpetual optimist I am, I think that what I'm hearing is 21 that it's a new day and people are going to move forward. 22 They're working with the districts. I know that 23 personally. They're going to be working with the public, 24 which is an expectation. There's a lot of damage that's 25 been done over the years. But, again, I hope people can PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 177 1 set that aside and say, you know, we're going to start 2 fresh today. And I believe that's the position that we 3 have to be in, is to say that we're anxious to move 4 forward with this. As other opportunities arise, you 5 know, we may be back at the table. But I don't think that 6 any of us can look at this MOU and say the reductions are 7 not significant. 8 So in my opinion, I definitely think that whether 9 we take action today is not really a win or lose as far as 10 I'm concerned. I just think we need to get this past us 11 and move on and take the reductions and see what we can do 12 about improving the public process and we move forward. 13 Thank you, Mr. Chair. 14 CHAIRPERSON SAWYER: Mayor Loveridge. 15 BOARD MEMBER LOVERIDGE: For the record, I would 16 move that MOU be rescinded. 17 SUPERVISOR DeSAULNIER: Second. 18 CHAIRPERSON SAWYER: We have a motion and a 19 second that the MOU be rescinded. Is it necessary to 20 discuss this further or go straight to the vote? 21 BOARD MEMBER D'ADAMO: Well, I can understand and 22 appreciate Mayor Loveridge's motion. But based on my 23 earlier comments, I really I don't want to support or 24 oppose the MOU. I prefer a no-action. And I think I'd 25 like to hear from legal staff. Because there was a little PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 178 1 bit of a bind we got into last time around as far as 2 tabling versus postponing or any other recommendation that 3 you may have to achieve a no-action, wait and see 4 approach. 5 ACTING GENERAL COUNSEL JENNINGS: If the Board 6 takes no action today, it continues to be in effect, as 7 people have indicated. Either at that point the Board 8 could at a subsequent time rescind it if that's the -- 9 EXECUTIVE OFFICER WITHERSPOON: I think D.D. was 10 asking the procedural question. The options you have are: 11 To vote on the motion to rescind and do a voice roll call 12 vote; or there could be a motion to table the original 13 motion, in which case there's no vote at all because a 14 motion to table is not debatable. But then what we talked 15 about at the beginning of this meeting Tom Jennings talked 16 about is we have to come back at the next meeting and do 17 something with that tabled motion in February. Because it 18 can't be tabled indefinitely. Is that correct; Tom? 19 ACTING GENERAL COUNSEL JENNINGS: That is 20 correct. 21 EXECUTIVE OFFICER WITHERSPOON: You may just want 22 to vote on the motion to rescind and then see where you 23 are. 24 CHAIRPERSON SAWYER: Tom, could you clarify the 25 if we were to move to table and then we have to bring it PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 179 1 off the table by a vote at the next meeting -- 2 ACTING GENERAL COUNSEL JENNINGS: Well, I'm not 3 totally sure. But I think there would have to be some 4 affirmative action to take it off the table to bring it 5 back. 6 CHAIRPERSON SAWYER: If we didn't do that, it 7 would just die? 8 ACTING GENERAL COUNSEL JENNINGS: That's correct. 9 As Ms. Witherspoon indicated, if there is a vote on the 10 motion to rescind and that does not prevail and there are 11 no other votes today, then the MOU would remain in place. 12 EXECUTIVE OFFICER WITHERSPOON: And if Ms. 13 D'Adamo's uncomfortable expressing an opinion one way or 14 the other, you simply abstain from the motion to rescind. 15 Tabling makes it more complicated and carries into the 16 next meeting. 17 BOARD MEMBER D'ADAMO: How about an amendment to 18 the motion that we take no action and adopt a resolution 19 that we come back with a report in six months? 20 EXECUTIVE OFFICER WITHERSPOON: Staff would 21 prefer you vote up or down on recission then trying to 22 amend the motion. 23 ACTING GENERAL COUNSEL JENNINGS: I believe Mayor 24 Loveridge would be need to accept that motion, accept the 25 amendment for it to go ahead. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 180 1 BOARD MEMBER LOVERIDGE: Prefer an up or down 2 vote. 3 BOARD MEMBER RIORDAN: Let me just -- I think in 4 an amendment, the amendment needs a second. And then you 5 deal with the amendment first, and then you deal with the 6 motion whether it's amended or not. 7 Obviously, the cleanest way to do this by 8 parliamentary procedure is simply to deal with the motion 9 that's before us at this very moment and not complicate it 10 with something else. 11 EXECUTIVE OFFICER WITHERSPOON: That would be 12 staff's preference. 13 CHAIRPERSON SAWYER: If we're going to move in 14 that direction, we need to call the vote. Do we have 15 that? 16 BOARD MEMBER RIORDAN: Or you can simply take it 17 if there's no further discussion. 18 Mr. Chair, if there's no further discussion, you 19 can call for the vote yourself. 20 CHAIRPERSON SAWYER: We need one of our members 21 to decide. 22 ACTING GENERAL COUNSEL JENNINGS: Mr. Chairman, 23 you can call the question at this point if that's your 24 choice. 25 CHAIRPERSON SAWYER: Our quorum at this time is PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 181 1 four? 2 ACTING GENERAL COUNSEL JENNINGS: We have a full 3 quorum. For the motion to pass, you would need a majority 4 of the persons here at this time. 5 CHAIRPERSON SAWYER: Which is four. 6 ACTING GENERAL COUNSEL JENNINGS: Four. 7 CHAIRPERSON SAWYER: Well, hearing no further 8 discussion, I'll call the vote on the motion to rescind. 9 Would the Clerk take a roll call on this, please? 10 SECRETARY ANDREONI: Ms. D'Adamo? 11 BOARD MEMBER D'ADAMO: Abstain. 12 SECRETARY ANDREONI: Supervisor DeSaulnier? 13 SUPERVISOR DeSAULNIER: Yes? 14 SECRETARY ANDREONI: Ms. Kennard. 15 BOARD MEMBER KENNARD: No. 16 SECRETARY ANDREONI: Mayor Loveridge? 17 BOARD MEMBER LOVERIDGE: Yes. 18 SECRETARY ANDREONI: Supervisor Patrick? 19 SUPERVISOR PATRICK: Abstain. 20 SECRETARY ANDREONI: Ms. Riordan? 21 BOARD MEMBER RIORDAN: No. 22 SECRETARY ANDREONI: Dr. Sawyer? 23 CHAIRPERSON SAWYER: No. 24 SECRETARY ANDREONI: Three no's, two abstain, and 25 two yeses. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 182 1 CHAIRPERSON SAWYER: Tom. 2 ACTING GENERAL COUNSEL JENNINGS: The motion 3 fails. 4 EXECUTIVE OFFICER WITHERSPOON: To clarify where 5 you are now, no motion is needed and no vote is needed to 6 leave the MOU in place. The only question is whether 7 someone wishes to make a motion to ratify. 8 CHAIRPERSON SAWYER: Hearing no motion, I believe 9 that completes our deliberation. We do have one more 10 agenda item, and that is our comment period for public 11 comment period. Do we have any? 12 EXECUTIVE OFFICER WITHERSPOON: I believe not. 13 CHAIRPERSON SAWYER: Having no comments, today's 14 business is finished, and we are adjourned. 15 (Thereupon the California Air Resources Board 16 adjourned at 12:48 p.m.) 17 18 19 20 21 22 23 24 25 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 183 1 CERTIFICATE OF REPORTER 2 I, TIFFANY C. KRAFT, a Certified Shorthand 3 Reporter of the State of California, and Registered 4 Professional Reporter, do hereby certify: 5 That I am a disinterested person herein; that the 6 foregoing hearing was reported in shorthand by me, 7 Tiffany C. Kraft, a Certified Shorthand Reporter of the 8 State of California, and thereafter transcribed into 9 typewriting. 10 I further certify that I am not of counsel or 11 attorney for any of the parties to said hearing nor in any 12 way interested in the outcome of said hearing. 13 IN WITNESS WHEREOF, I have hereunto set my hand 14 this 8th day of February, 2006. 15 16 17 18 19 20 21 22 23 TIFFANY C. KRAFT, CSR, RPR 24 Certified Shorthand Reporter 25 License No. 12277 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345