BOARD MEETING STATE OF CALIFORNIA AIR RESOURCES BOARD AIR RESOURCES BOARD 9530 TELSTAR AVENUE AUDITORIUM EL MONTE, CALIFORNIA THURSDAY, OCTOBER 27, 2005 2:00 P.M. JAMES F. PETERS, CSR, RPR CERTIFIED SHORTHAND REPORTER LICENSE NUMBER 10063 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 ii APPEARANCES BOARD MEMBERS Mrs. Barbara Riordan, Acting Chairperson Ms. Sandra Berg Supervisor Mark DeSaulnier Dr. Henry Gong Ms. Lydia Kennard Mayor Ronald Loveridge Supervisor Barbara Patrick STAFF Ms. Catherine Witherspoon, Executive Officer Mr. Tom Cackette, Chief Deputy Executive Officer Mr. Michael Scheible, Deputy Executive Officer Ms. Lynn Terry, Deputy Executive Officer Mr. Tom Jennings, Acting Chief Counsel Ms. Kathleen Tschogl, Ombudsman Mr. Bob Cross, Chief, Mobile Source Control Division Mr. Bob Fletcher, Chief, Stationary Source Division Ms. Annette Hebert, Chief, Heavy-Duty Diesel In-Use Strategies Branch Ms. Diane Johnston, Senior Staff Counsel Ms. Kathleen Mead, Manager, Retrofit Implementation Section PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 iii APPEARANCES CONTINUED STAFF Mr. Dean Simeroth, Chief, Criteria Pollutants Branch Mr. Mike Terris, Senior Staff Counsel Mr. Erik White, Manager, Engineering Evaluation Section ALSO PRESENT Mr. Bert Barboza, Youth for Environmental Justice Mr. Michael Barr, Association of American Railroads Ms. Sylvia Betancourt, East Yard Communities for Environmental Justice Ms. Colleen Callahan, American Lung Association Ms. Marlene Carney, California Chamber of Commerce Councilmember Margaret Clark, City of Rosemead, California Contract Cities Association Mr. Jim Clouet, South Coast Air Quality Management District Ms. Carol Coy, South Coast Air Quality Management District Mr. John Cross, Citizen Mayor Lawrence Dale, City of Barstow Mr. Dave Davies, National Railroad Equipment Company Mr. Jose Delgado, Office of Congresswoman Linda Sanchez Councilwoman Tina Del Rio, City of Commerce Councilman Bill De Witt, City of South Gate Ms. Karen Dzienkowski, Railpower Hybrid Technology Mr. Bob Eulh, East Yard Ms. Shaudi Falamaki, California Association of Port Authorities PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 iv APPEARANCES CONTINUED ALSO PRESENT Mr. Carl Farrington, South Coast Interfaith Council Ms. Virginia Field, Clean Air Now Mr. James Flournoy, Save Our Community Ms. Jalene Forbis, California Short Line Railroad Association Mr. Aaron France, City of Buena Park Mr. Frank Gallego, Citizen Mr. T.L. Garrett, Pacific Merchant Shipping Association Mr. Ronald Gastelum, Los Angeles Area Chamber of Commerce Ms. Aeron Arlin Genet, San Luis Obispo Air Pollution Control District Ms. Mayra Gonzalas, Youth for Environmental Justice Mr. Peter Greenwald, South Coast Air Quality Management District Ms. Marlene Grossman, Pacoima Beautiful Ms. Lydia Gutierrez, Hudson School Mr. Arthur Hernandez, Urban Neighborhood Council Board Member Ms. Perla Hernandez, Congresswoman Grace Napolitano's Office Ms. Margarita Holguin, Citizen Ms. Bonnie Holmes-Gen, American Lung Association of California Ms. Anita Hutchins, Citizen Ms. Candice Kim, Coalition for Clean Air Ms. Goedana Kiorpeoglou, American Civil Liberties Union PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 v APPEARANCES CONTINUED ALSO PRESENT Ms. Marisela Knott, Citizen Ms. Bea LaPisto-Kirtley, South Coast Air Quality Management District Board Mr. George Leddy, Assemblymember Cindy Montanez's Office Ms. Barbara Lee, California Air Pollution Control Officers Association Mr. Angelo Logan, East Yard Communities for Environmental Justice Ms. Rachel Lopez, Center for Community Action in Environmental Justice, H.O.M.E. Senator Alan Lowenthal Mr. Chung Liu, South Coast Air Quality Management District Ms. Teresa Lopez, Citizen Mr. Bob Lucas, California Council for Environmental and Economic Balance Mr. Kirk Marckwald, California Rail Industry Mr. Jesse Marquez, Coalition for a Safe Environment Mr. Erick Martinez, representing Councilmember Bonnie Lowenthal's Office, City of Long Beach Mr. Peter Mieras, South Coast Air Quality Management District Ms. Jan Misquez, Westside Resident Ms. Darryl Molina, Communities for a Better Environment Mr. David Nawi, South Coast Air Quality Management District Ms. Susana Negrete, Citizen Assemblymember Gloria Negrete-McLeod PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 vi APPEARANCES CONTINUED ALSO PRESENT Ms. Penny Newman, Center for Community Action and Environmental Justice Mr. Anthony Orozco, Youth for Environmental Justice Mr. Romel Pascual, representing Mayor Antonio Villaraigosa, City of Los Angeles Ms. Melissa Lin Perrella, Natural Resources Defense Council Councilmember Jan Perry, South Coast Air Quality Management District Ms. Ester Portillo, Citizen Mr. James Provenzano, Clean Air Now Councilmember Nancy Ramos, City of Commerce Ms. Sheri Repp, City of Carson Mr. Larry Robinson, Sacramento Metropolitan Air Quality Management District Ms. Jean Roggenkamp, Bay Area Air Quality Management District Mr. Manual Saucedo, Senator Nell Soto's Office Ms. Julia Scoville, Coalition for Clean Air, Grey Panthers Mr. Mark Stehly, Burlington Northern Santa Fe Railroad Company Councilwoman Susan Seamans, City of Rolling Hills Estates Councilwoman Tonia Reyes Uranga, City of Long Beach Ms. Lupe Valdez, Union Pacific Mr. Jose Velasco, Center for Community Action in Environmental Justice Ms. Cynthia Verdugo-Peralta, Board Member, South Coast Air Quality Management District PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 vii APPEARANCES CONTINUED ALSO PRESENT Dr. Barry Wallerstein, South Coast Air Quality Management District Mr. Eddie Washington, Los Angeles County Board of Supervisors Mr. Kurt Wiese, South Coast Air Quality Management District Mayor Dennis Yates, City of Diamond Bar, South Coast Air Quality Management District Board PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 viii INDEX PAGE Call to Order 1 Pledge of Allegiance 1 Roll Call 1 Item 05-10-2 4 Acting Chairperson Riordan 4 Executive Officer Witherspoon 4 Staff Presentation 5 Motion 9 Board Discussion and Q&A 10 Vote 15 Item 05-9-1 15 Acting Chairperson Riordan 15 Staff Presentation 16 Board Discussion and Q&A 57 Assemblymember Negrete Mcleod 72 Senator Lowenthal 75 Peter Greenwald 81 Jan Perry 92 Cynthia Verdugo-Peralta 95 Kurt Wiese 99 David Nawi 101 Peter Mieras 105 Jim Clouet 109 Chung Liu 110 Margaret Clark 115 Bob Lucas 117 Dave Davies 119 Shaudi Falamaki 121 Manual Saucedo 123 Susan Seamans 125 Aeron Arlin Genet 133 Jean Roggenkamp 136 Nancy Ramos 140 Tina Del Rio 143 Eddie Washington 147 Evening Session 150 Item 05-9-1(continued) Larry Robinson 151 Romel Pascual 152 Lawrence Dale 154 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 ix INDEX CONTINUED PAGE Item 05-9-1(continued) Sheri Repp 157 Erick Martinez 159 George Leddy 162 Aaron France 164 John Cross 165 Bonnie Holmes-Gen 170 Ronald Gastelum 175 Mark Stehly 178 Lupe Valdez 193 Michael Barr 198 Kirk Marckwald 201 Jalene Forbis 204 Karen Dzienkowski 206 Barbara Lee 209 James Provenzano 214 Carol Coy 217 Candice Kim 218 T.L. Garrett 220 Melissa Lin Perrella 221 Virginia Field 224 Colleen Callahan 226 Jan Misquez 227 Penny Newman 228 Mayor Dennis Yates 231 Bea LaPisto-Kirtley 235 Margarita Holguin 239 Marisela Knott 242 Perla Hernandez 243 James Flournoy 245 Lydia Gutierrez 249 Bob Eulh 252 Tonia Reyes Uranga 254 Teresa Lopez 260 Darryl Molina 261 Goedana Kiorpeoglou 264 Mayra Gonzalas 266 Bert Barboza 266 Anthony Orozco 268 Ester Portillo 274 Anita Hutchins 276 Rachel Lopez 277 Frank Gallego 279 Carl Farrington 281 Jesse Marquez 283 Arthur Hernandez 286 Julia Scoville 288 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 x INDEX CONTINUED PAGE Item 05-9-1(continued) Jose Velasco 289 Susana Negrete 290 Jose Gayton 291 Angelo Logan 293 Sylvia Betancourt 297 Barry Wallerstein 300 Bill De Witt 303 Board Discussion and Q&A 306 Ex Partes 317 Motion 322 Board Discussion and Q&A 322 Motion 331 Vote 333 Adjournment 334 Reporter's Certificate 336 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 1 1 PROCEEDINGS 2 ACTING CHAIRPERSON RIORDAN: Ladies and gentlemen 3 if you could find a seat please, we would appreciate that. 4 We're sorry for the little bit of delay. Our 5 transportation system is blocked by a couple of accidents, 6 and so we were waiting for a quorum. And we have that 7 quorum now, so I'm going to open the October 27th, 2005, 8 Public Meeting of the Air Resources Board. 9 And it's our custom we begin with the Pledge of 10 Allegiance. And Dr. Gong is going to lead us. 11 Would you all rise please. 12 (Thereupon the Pledge of Allegiance was 13 Recited in unison.) 14 ACTING CHAIRPERSON RIORDAN: Thank you, Dr. Gong. 15 I'd like to ask the clerk to call the roll 16 please. 17 BOARD CLERK ANDREONI: Ms. Berg? 18 Ms. D'Adamo? 19 Supervisor DeSaulnier? 20 BOARD MEMBER DeSAULNIER: Here. 21 BOARD CLERK ANDREONI: Dr. Gong? 22 BOARD MEMBER GONG: Here. 23 BOARD CLERK ANDREONI: Ms. Kennard? 24 BOARD MEMBER KENNARD: Here. 25 BOARD CLERK ANDREONI: Mayor Loveridge? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 2 1 BOARD MEMBER LOVERIDGE: Here. 2 BOARD CLERK ANDREONI: Supervisor Patrick? 3 BOARD MEMBER PATRICK: Here. 4 BOARD CLERK ANDREONI: Ms. Pineda? 5 Supervisor Roberts? 6 Madam Chairman Riordan? 7 ACTING CHAIRPERSON RIORDAN: Here. 8 BOARD CLERK ANDREONI: 9 ACTING CHAIRPERSON RIORDAN: Thank you very much. 10 As you know, today's hearing is principally about 11 the railroad memorandum of understanding. But we have a 12 carryover item, which should take just a moment, from last 13 week regarding transit buses, specifically how the Board's 14 vote last week -- at last week's meeting affects the Carl 15 Moyer funds and what other funds are available for natural 16 gas transit agencies. 17 That item should make no more than a half an 18 hour. And there's no testimony on that item. It's simply 19 a report to the Board and the Board's response to the 20 staff report. 21 Now, as to the railroad item that will be then 22 next. So that you can be thinking about this while we 23 deal with our bit of housekeeping first, let me explain to 24 you the order of testimony. 25 We're going to start with our staff presentation, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 3 1 the railroad memorandum of understanding, and then go to 2 the South Coast District and other air districts for their 3 remarks. And we'll have an hour about before the dinner 4 break for comments from community members. 5 Now, we recognize and know that there are a 6 couple of people who do have some time constraints. And 7 so we are going to work with you and try to give you every 8 consideration that we can so that we can get your 9 testimony on the record. 10 But today -- and from my Chairman's point of view 11 is really to ensure that the community's heard. So I'm 12 going to make every effort to accommodate those community 13 members that will attend this meeting and testify. 14 Also, because of the number of people that we 15 believe will be here to testify, not only this afternoon 16 but this evening after we return from our break, I am 17 going to hold to my usual three minutes. And three 18 minutes is going to be timed a little more sophisticated 19 of element here. You're actually at the podium going to 20 see the count down of the seconds and be accorded also 21 colored lights that indicate to you how many more minutes 22 you have. So you're going to be very well aware of your 23 time. 24 When you've hit that final concluding second, be 25 very prepared to make one final sentence conclusion. This PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 4 1 will allow us to be sure that everyone is heard. It's not 2 that I don't think you're important. But I want to be 3 sure that everybody is important and that everyone is 4 heard. So everyone abides by the three minutes. 5 Let me also indicate to you that we will take a 6 break around 5:15 or thereabouts and we will be back then 7 about 6 or 6:15. We'll kind of be judging that, and we'll 8 announce that before we leave. 9 So we are looking forward to a good day of 10 discussion. We want to be sure that you have your speaker 11 slips filled out. We have staff in the lobby that can 12 help you do that and be sure that you'll be on the list 13 for me to call at the appropriate time. 14 Now, for this item that is housekeeping before 15 us, Agenda Item 05-10-2, this is the continuation from the 16 October 20th Board meeting, proposed amendments to the 17 transit bus rule. 18 Ms. Witherspoon, the staff response please. 19 EXECUTIVE OFFICER WITHERSPOON: Thank you, Madam 20 Chair and members of the Board. 21 Last week the Board voted to retain the 2007 0.2 22 gram NOx standard for urban buses, but to allow diesel 23 path agencies to purchase buses meeting the less stringent 24 truck standards between 2007 and 2009. To mitigate the 25 increased NOx emissions, transit agencies with greater PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 5 1 than 30 buses in their fleets must retrofit existing buses 2 with at least 40 percent efficiency NOx reduction 3 technology. Transit agencies are also further required to 4 retrofit one vehicle for each bus purchased until all 5 their retrofitable urban buses and transit fleet vehicles 6 are exhausted. 7 The remaining question before the Board was: How 8 did the decision to retain the 0.2 NOx standard affect 9 eligibility for Carl Moyer funding and other funds 10 available at transit agencies? Staff has gathered data on 11 that point and will provide impact estimates for you to 12 consider. 13 Based on our analysis, staff still believes that 14 the 1.2 NOx standard is more appropriate in 2007 because 15 it does ensure that transit agencies have the widest 16 possible access to available funding. But we'll explain 17 why that is. 18 At this point, Kathleen. 19 (Thereupon an overhead presentation was 20 Presented as follows.) 21 AIR POLLUTION SPECIALIST MEAD: Good afternoon, 22 Madam Chairman, members of the Board, ladies and 23 gentlemen. 24 As Catherine mentioned, we are here to answer the 25 question you had raised last week on how keeping the 0.2 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 6 1 gram NOx urban bus standard would impact Carl Moyer 2 funding. 3 --o0o-- 4 AIR POLLUTION SPECIALIST MEAD: This slide 5 summarizes what Catherine just described, and I'm going to 6 skip over it. 7 --o0o-- 8 AIR POLLUTION SPECIALIST MEAD: So the question 9 posed by the Board is: How the Board's action would 10 affect Carl Moyer funding available to transit districts 11 was a question not fully answered during the hearing. 12 Some testimony suggested Carl Moyer funds were no longer 13 needed because other funding sources have become available 14 to cover the incremental costs. 15 However, historically transit agencies have used 16 Moyer funds. Half the alternative path agencies use Moyer 17 funds totaling $11.3 million. You asked the staff to 18 investigate further and report back to you today. 19 --o0o-- 20 AIR POLLUTION SPECIALIST MEAD: As background, 21 here are the general rules that govern the use of Moyer 22 funds. It helps to pay the incremental costs of a natural 23 gas bus, and the maximum funding is based on the emission 24 reductions and cost effectiveness. 25 If the standard is 1.2 grams NOx, transit PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 7 1 agencies could receive up to $30,000 per bus. If the 2 standard is 0.2 grams NOx, no Carl Moyer money is 3 available. 4 --o0o-- 5 AIR POLLUTION SPECIALIST MEAD: Based on review 6 of Federal Transit Administration funding mechanisms and 7 the new energy bill tax credit legislation, we have come 8 up with an example to help illustrate funding of a transit 9 bus. 10 First we look at the funding of a diesel bus 11 which provides the base line for determining the 12 incremental cost of a natural gas bus. The base price of 13 a diesel bus is $340,000. The FDA provides up to 80 14 percent of that amount as federal funding. The remaining 15 20 percent of the cost may be provided by the transit 16 agency, which in this example is $68,000. 17 A new natural gas bus costs $390,000. However, 18 new energy bill legislation provides a maximum tax credit 19 of $32,000 for a natural gas vehicle, that reduces the 20 price of the bus to the transit districts to $358,000. 21 Then FTA provides up 83 percent of the cost. 22 This leaves $60,860 of local share cost. 23 --o0o-- 24 AIR POLLUTION SPECIALIST MEAD: So to summarize, 25 what we have learned, keeping the 0.2 gram NOx standard PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 8 1 means no Carl Moyer money is available for buses. 2 Relaxing the standard to 1.2 gram NOx may also result in 3 no Carl Moyer money available because when using the 4 maximum allowed federal funds, a natural gas bus costs a 5 transit agency less than a diesel bus. 6 However, application of the funding formula used 7 in the example can vary by transit agency. And it may be 8 possible that the transit agency share is higher, 9 resulting in qualification for Carl Moyer funds. Relaxing 10 the standard to 1.2 would preserve this possibility. 11 --o0o-- 12 AIR POLLUTION SPECIALIST MEAD: This concludes my 13 presentation. 14 EXECUTIVE OFFICER WITHERSPOON: Just to elaborate 15 on the last part of Kathleen's presentation. It may sound 16 contrary that on the one hand staff showed you a slide 17 that says the price of natural gas buses is less and yet 18 we're still recommending you retain eligibility for Carl 19 Moyer funding. And the reason for that is that transit 20 agencies have different operational practices than the 21 maximum funding allowed under federal law. And if they 22 can stretch the funds farther, they will. And so they 23 don't withdraw up to the full percent allowed so that 24 funds can come out of the federal pool and go into 25 maintenance, other operating costs, other capital PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 9 1 investments for which they do not have adequate funding. 2 And so we think if they are eligible for Carl 3 Moyer funding, they will try to get it, and spread their 4 resources farther. 5 We also note that in the decision to impose 6 additional mitigation requirements the Board made last 7 week, additional costs were imposed. And so again 8 retaining eligibility for Carl Moyer funding mitigates 9 some of the potential loss in transit services that could 10 be incurred as a result of new and greater costs being 11 imposed. 12 ACTING CHAIRPERSON RIORDAN: Board members, it 13 would seem to me that what's before us is either we 14 reaffirm our decision or we amend our decision from last 15 week to the staff recommendation. And that I think frames 16 the issue before us and so the discussion. And maybe best 17 to put a motion on the table and then discuss it one way 18 or the other. 19 Supervisor Patrick. 20 BOARD MEMBER PATRICK: Thank you. 21 I guess I have to have this closer. 22 It would seem to me that given the information 23 that's in our report today, that we should -- I would make 24 a motion that we look at the staff recommendation from 25 last time -- from last week's meeting and that we not keep PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 10 1 the standard at 0.2, but instead move it to 1.2 grams of 2 NOx. Because the one thing that I don't want to do, and I 3 hope that we all don't want to do, is to limit the transit 4 agencies so that they are able to buy fewer new buses. 5 I think one of the reasons that this came to us 6 is that the -- was our concern that the agencies that had 7 chosen the diesel path were just not going to buy any more 8 buses. And so it was our effort to craft something that 9 was workable for the agencies that had chosen the diesel 10 path. 11 And it seems to me that by limiting any district 12 on either path to not qualifying for Moyer funds is not a 13 direction that I would like to go in. 14 ACTING CHAIRPERSON RIORDAN: Okay. There is a 15 motion. 16 Is there a second to the motion? 17 BOARD MEMBER BERG: Second. 18 ACTING CHAIRPERSON RIORDAN: Second by Member 19 Berg. 20 Discussion? 21 Supervisor DeSaulnier. 22 BOARD MEMBER DeSAULNIER: Well, I appreciate 23 staff coming back with the numbers. And it poses a 24 problem for me, I guess partially because the district I 25 represent isn't affected by it largely, the Bay Area, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 11 1 because it's chosen the diesel path. 2 But I haven't heard, unless staff has heard 3 further comment the last week -- and I know we've been 4 busy on the second item -- but I was lobbied by the 5 natural gas industry to keep the standard in spite of 6 this -- and I hadn't heard from any of the other districts 7 who have predominantly went the all fuel contradict that. 8 And I wonder if there were any kind of communication that 9 changed once they became aware of this. 10 And then lastly, the second part of the question 11 is, it's not as if the Carl Moyer funding won't be spent 12 on good projects regardless of what we do. 13 CHIEF DEPUTY EXECUTIVE OFFICER CACKETTE: On your 14 last point, that's absolutely true. The Moyer money will 15 get spent one way or the other on emission reducing 16 programs. 17 We did have discussion with the California 18 Transit Association and with a number of members from both 19 the Bay Area and from Los Angeles area, who are the 20 natural gas -- and San Diego, by the way. And what we 21 learned is that they do depend on the Carl Moyer money to 22 help extend their funds. And that not withstanding the 23 new availability of a tax credit, which can drop the price 24 of the bus, they are planning on trying to use Carl Moyer 25 in the future. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 12 1 And I have to admit that the funding is not a -- 2 funding formula is not a simple formula. There's 3 apparently a number of variations and ways in which you 4 can apply it to try to maximize your revenues. And from 5 what they told us, they believe they still will be able to 6 qualify if the standard is adjusted 1.2. 7 The extent -- exact extent to which that is true, 8 we could not quantify in this timeframe. 9 BOARD MEMBER DeSAULNIER: And the natural gas 10 industry, did they -- 11 CHIEF DEPUTY EXECUTIVE OFFICER CACKETTE: Well, 12 the natural gas industry wrote a letter. And what they -- 13 and they went through a very detailed and very helpful 14 assessment of the costs. And what I think they showed is 15 that if you withdraw from your pool of money the maximum 16 amount towards your buses allowed by federal law, that the 17 natural gas bus costs the transit district less after all 18 the federal funding than a diesel bus. 19 And in that scenario there would be no Carl Moyer 20 money available. And therefore they recommend that you 21 leave the standard at .2 because there won't be any Moyer. 22 But I think there are, you know, nuances and different 23 ways in which these federal funds can be allocated that 24 could cause some Moyer monies to still flow to transit 25 districts. And that's why we're suggesting the 1.2, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 13 1 because we believe in transit and think that it would make 2 more sense to let some of these Moyer funds go to the 3 transit districts. 4 BOARD MEMBER DeSAULNIER: Thank you. 5 Thank you, Madam Chairman. 6 ACTING CHAIRPERSON RIORDAN: Any other questions? 7 Dr. Gong. 8 BOARD MEMBER GONG: One week is a long time for 9 me. So I was hoping that the staff could just refresh 10 succinctly my memory about the possible health effects 11 resulting from relaxing the standard to 1.2 grams. Will 12 there be more health effects because there's more diesel 13 exhaust? 14 EXECUTIVE OFFICER WITHERSPOON: The maximum 15 tonnage impact that we calculated for you last week, if 16 everyone bought as many diesel buses as they would like to 17 buy, was a cumulative one ton difference over 20 years as 18 the 1.2 buses accumulated, as a comparative they weighted 19 or bought .2 instead in the three-year interval of 20 concern, 2007 to 2009. And we also indicated to you that 21 in the case of the Bay Area district, they had already 22 done so much installation of retrofit devices that they 23 had in fact prepaid and more than compensated for any 24 impact in the Bay Area. So there was no health loss in 25 the Bay Area. There was probably a health benefit. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 14 1 And that wherever else that was not the case, the 2 Board decided to seek 40 percent NOx mitigation. So of 3 the one ton or the fragment of one ton that would be in 4 any single transit district, you would recoup back 40 5 percent of it by the installation of retrofit devices. 6 CHIEF DEPUTY EXECUTIVE OFFICER CACKETTE: And for 7 everybody there was a benefit in air quality through 2010. 8 And then it shifted over to be a slight disbenefit. This 9 would have been described in the years after 2010, out to 10 2020 or so. And by 2025 it was all back to where it was 11 equivalent again. 12 EXECUTIVE OFFICER WITHERSPOON: One of the things 13 we didn't cover last week is -- because it's a NOx 14 standard and these were NOx tonnages I'm talking about. 15 But if diesel districts start resuming the purchase of new 16 diesel buses, they come with filters. And so there's also 17 an 85 percent particulate reduction that is forgone in the 18 three years they're not buying buses if they can't buy 19 something reasonable. And we didn't put that in the 20 slides for you because we were talking about NOx. But 21 that's another important health benefit. 22 And then there's one last thing I need to clarify 23 to you. We keep saying 1.2 for convenience. But what we 24 mean is alignment with the truck standards, which is an 25 averaging standard. And we're expecting all the engines PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 15 1 to be in the 1.1 to 1.4 gram range. There could be 2 outliers -- we don't think they'll be in the transit 3 sector -- as high as 2.5. But it's an averaging standard. 4 And on average all of the trucks will be a 1.2 for the 5 most part. And that's what we expect to see in urban bus 6 engines. 7 ACTING CHAIRPERSON RIORDAN: Okay. Other 8 questions for staff? Any other questions? 9 And, Board members, I think we'll bring this to a 10 vote. The motion is on the table to go to the -- change 11 the standard to allow the flexibility in funding. 12 All those in favor signify by saying aye. 13 (Ayes.) 14 ACTING CHAIRPERSON RIORDAN: Opposed, no. 15 (Noes.) 16 ACTING CHAIRPERSON RIORDAN: I believe the motion 17 carries. 18 Thank you very much. 19 And we will move on to the next item, which is 20 the Railroad MOU. And just speaking to the staff that's 21 kind of coordinating in helping the speakers, there are a 22 few who may have to leave early. And I need to know that 23 as soon as our staff presentation is finished. And then 24 I'll kind of try to accommodate one or two before the 25 South Coast comes up. I'll see what I can do to make this PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 16 1 all happen correctly for everybody's schedule. That's not 2 easy to do, you might know. 3 So, staff, Ms. Witherspoon, would you like to -- 4 when the staff is able to kind of change positions here, 5 if you'd like to introduce this item. 6 EXECUTIVE OFFICER WITHERSPOON: Thank you, Madam 7 Chair. 8 Prior to June 24th when we entered into a 9 settlement agreement -- excuse me -- a voluntary agreement 10 with the railroads, we had spent about a year in lengthy 11 negotiations with Burlington Northern/Santa Fe and Union 12 Pacific Railway Company, discussing various ways in which 13 California and the railroads could agree to do things to 14 protect public health in our state beyond what we could 15 compel under state law and beyond what the federal 16 government was providing. 17 And so we reached an agreement after that year of 18 negotiations and signed it -- I signed on the Board's 19 behalf, as has been the custom of the Air Resources Board 20 for a number of years. And then what ensued was a great 21 deal of controversy on opposition and dismay. A great 22 deal of that was procedural, that parties were upset they 23 were not at the table during the negotiations and also not 24 aware that they were being conducted. There was also 25 concern that the content of the agreement was less than PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 17 1 other parties felt should be obtained. 2 And then I think it's also fair to say there's an 3 enormous amount of misunderstanding about what is possible 4 to do under federal law. And had we had the time -- and 5 we're going to take some of that time today -- to explain 6 exactly what the scope of federal preemption is, that we 7 might not have incurred as much wrath as we did with the 8 announcement of the MOU. 9 So what we have for you today is a five-part 10 presentation. I will begin by summarizing the broad 11 policy issues that impact the Board's consideration of the 12 railroad agreement. Mike Scheible, Deputy Executive 13 Officer, will then cover ARB's overall strategy to reduce 14 emissions from rail activities, because this MOU is just 15 one part of a much larger plan. Following Mike, Mike 16 Terris will provide the legal staff's views on how federal 17 preemptions affect California's ability to regulate 18 locomotive and other rail related emissions. Then Mr. 19 Eric White will present the specific terms of the June 20 24th, 2005, railroad agreement. 21 At that point I'll take over again and talk about 22 the single biggest issue of the agreement, which is lack 23 of public process. And then we'll close with staff 24 recommendations to the Board on how to proceed. 25 (Thereupon an overhead presentation was PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 18 1 Presented as follows.) 2 --o0o-- 3 EXECUTIVE OFFICER WITHERSPOON: There were three 4 major policy considerations that guided staff's 5 involvement in the June 24 railroad agreement. 6 First, that a statewide approach is essential to 7 effectively address railroad emissions in California and 8 that ARB is in the best position to undertake that effort. 9 Second, the federal preemption is extremely broad 10 and cannot be underemphasized. 11 Finally, that the public health threat posed by 12 railroad emissions demands that we follow the quickest, 13 more certain path to emission reductions. 14 --o0o-- 15 EXECUTIVE OFFICER WITHERSPOON: This slide 16 illustrates the routing of major rail lines throughout 17 California. As you can see, there's clearly a statewide 18 impact from railroad operations. The primary emissions of 19 concern are oxides of nitrogen, or NOx, and diesel 20 particulate matter. 21 --o0o-- 22 EXECUTIVE OFFICER WITHERSPOON: Because of 23 statewide impact the California Legislature has assigned a 24 clear duty and responsibility to the Air Resources Board 25 to obtain all feasible emission reductions from PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 19 1 locomotives as expeditiously as possible. And when you 2 think about that, that makes perfect sense, because ARB is 3 the only entity that can act to protect all communities in 4 California from railroad emissions. Any other approach 5 would result in a patchwork of control or potentially no 6 control at all. 7 --o0o-- 8 EXECUTIVE OFFICER WITHERSPOON: Here are a few 9 statistics to put the statewide impacts into perspective: 10 Railroad emission controls will be a necessary 11 component of attainment plans throughout the Central 12 Valley as well as in the South Coast. 13 For risk reduction and localized mortality 14 effects and other health effects, the geographical extent 15 of the problem extends to wherever railroads and rail 16 yards are. 17 Although this is often thought about as mostly a 18 South Coast problem, in actuality 17 of the largest rail 19 yards are located outside the South Coast District, 17 of 20 the 32. 21 And about 80 percent of locomotive emissions also 22 occur outside the South Coast boundaries. So it is truly 23 a statewide problem. 24 --o0o-- 25 EXECUTIVE OFFICER WITHERSPOON: The agreement you PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 20 1 are considering today is just part of ARB's comprehensive 2 emission reduction strategy for railroads. Mike 3 Scheible's going to go over that strategy in just a 4 moment. But let me sketch out the rough outline so you'll 5 understand our policy objections to those who say ARB 6 should pursue a different course. 7 --o0o-- 8 EXECUTIVE OFFICER WITHERSPOON: ARB's overall 9 strategy for railroads includes voluntary agreements, 10 state regulations, financial incentives, and U.S. EPA's 11 pending rule making for Tier 3 locomotives. 12 The rail strategy is also part of the Governor's 13 effort to fully mitigate emissions associated with goods 14 movement through California ports and transportation 15 systems. 16 --o0o-- 17 EXECUTIVE OFFICER WITHERSPOON: Our overall goal 18 for rail is commensurate with our goals for other 19 diesel-powered sources, namely, a 90 percent reduction 20 between 2000 and 2020. To meet this goal an entirely new 21 generation of after-treatment equipped locomotives will 22 need to be designed, produced and deployed by railroads 23 operating in California. Those do not exist today. 24 To accomplish that pace of turnover with 25 technology that won't be commercially introduced under PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 21 1 federal rules until 2012 at the earliest, we need to 2 negotiate yet another agreement with the railroads to 3 accelerate locomotive and switcher engine turnover in 4 California in 2012 to 2020 time frame. 5 --o0o-- 6 EXECUTIVE OFFICER WITHERSPOON: I've described 7 the state's role and staff's strategy for meeting those 8 obligations. Now I'm going to turn to the criticisms 9 about what we've done, since along with the process issues 10 and questions of clarity, et cetera, there is a 11 fundamental strategic debate going on about how California 12 ought to interact with the railroads in pursuing its 13 health objectives. 14 Many of the stakeholders believe that our choice 15 to engage in the voluntary agreement is a flawed strategy 16 and they advance several different reasons why. 17 --o0o-- 18 EXECUTIVE OFFICER WITHERSPOON: The first issue 19 is that ARB has put itself between the railroads and 20 parties like the State Legislature or local air districts 21 or ports that are willing to be much more aggressive in 22 pushing the envelope on railroad emission controls. If we 23 would just get out of the way, the argument goes, they 24 could achieve substantially greater emission reductions 25 than are being offered by this agreement. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 22 1 --o0o-- 2 EXECUTIVE OFFICER WITHERSPOON: The reality is 3 that federal preemption is sweeping and affects all levels 4 of government. The theories about overcoming preemption 5 are just that, theories. And the significant case law 6 runs almost entirely the other way, as Mike Terris will 7 discuss later in his presentation. 8 We could certainly choose to litigate those 9 boundaries. But our legal staff is convinced that the 10 risk of failure is too high to make that a productive 11 course of action. 12 --o0o-- 13 EXECUTIVE OFFICER WITHERSPOON: The second policy 14 argument we've heard is that ARB should support local 15 agencies trying to go further on railroad controls, 16 because the general philosophy of air quality management 17 is states can go further than EPA and local districts can 18 go farther than ARB if necessary to address local 19 conditions. In support of that argument parties have 20 pointed out that off-road mobile sources are under the 21 joint legal authority of ARB and local districts per the 22 California Health and Safety Code. 23 --o0o-- 24 EXECUTIVE OFFICER WITHERSPOON: Our view is that 25 source categories that cross district boundaries need to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 23 1 be addressed on a statewide basis. All regions and 2 communities need protection from diesel particulate, and 3 most benefit from the control of other locomotive 4 emissions. Only ARB is in a position to accomplish 5 statewide reductions in terms of its legal authority, 6 resources and expertise. We must also recognize the 7 reality of railroad operations where locomotives and crews 8 pass freely from one area to the next where conflicting 9 requirements will not be workable. 10 There is a large role for local districts and 11 communities in terms of rail-yard-specific mitigation. 12 And we saw that happen in Roseville in Placer County. But 13 this needs to be built upon an effective statewide 14 approach. 15 --o0o-- 16 EXECUTIVE OFFICER WITHERSPOON: Along the lines 17 of the first two policy arguments, some stakeholders are 18 upset that the railroad legislation they were sponsoring 19 last year and this year failed to pass. And they hold 20 ARB's railroad agreement responsible for that. We have 21 been urged to change our position on those bills and to 22 back state legislation that will purportedly enable local 23 communities to reduce locomotive emissions by upwards of 24 65 percent. 25 --o0o-- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 24 1 EXECUTIVE OFFICER WITHERSPOON: While the 2 railroads certainly touted the current agreement with ARB 3 as one of several reasons why the pending bills should be 4 defeated, we would have been opposed to those bills in any 5 case for the reasons set forth on this slide. State 6 legislation cannot overcome federal preemption and, thus, 7 simply invites litigation. Also the legislation 8 threatened the continued implementation of ARB's 1998 9 agreement with the railroads for accelerated locomotive 10 turnover in the South Coast Air Basin by 2010. 11 Finally, the legislative proposals contained 12 other troublesome provisions that would have duplicated 13 ARB's authority to regulate heavy-duty diesel vehicles by 14 allowing districts to regulate them at the same time. 15 --o0o-- 16 EXECUTIVE OFFICER WITHERSPOON: The whole set of 17 complaints about the agreement has to do with the notion 18 that ARB left readily available controls and/or clean 19 technologies on the table; that Europe already has 20 particulate traps, so why don't we; that alternative fuels 21 and electric switches are ready for prime time; and that 22 our fuel elements should reach beyond state borders to 23 what locomotives bring into California in their fuel 24 tanks. 25 --o0o-- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 25 1 EXECUTIVE OFFICER WITHERSPOON: Staff's view is 2 that the agreement contains every currently available 3 controlled measure and that the remaining technologies are 4 not ready for deployment. There are no retrofit kits 5 available for existing engines for either NOx or PM 6 control. And while Switzerland has some smaller size PM 7 filters in service, there is nothing available for 8 U.S.-size locomotives. Alternative fuel locomotives are 9 just becoming available, but they can play only limited 10 roles in captive operations. The same is true of the 11 Green Goat electric switcher option. Similar, DOE is 12 funding hybrid electric locomotive research. But the 13 results of that work are still a year or more away. 14 We're optimistic about all these technologies for 15 the future. But until we have some real working 16 experience with them, the railroads will not commit to put 17 them into service; and due to federal preemption, we can't 18 compel them to do so. 19 --o0o-- 20 EXECUTIVE OFFICER WITHERSPOON: Another concern 21 is that ARB misused the voluntary option; and that since 22 we might have mandated part of the agreement, we should 23 have done regulations instead. 24 The agreement is a blend of elements, not all of 25 which are preempted by federal law. However, the most PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 26 1 important aspects of the agreement with the largest 2 emission reductions, namely, the idling controls, are 3 preempted. And we included the rest for completeness and 4 expediency. Regulations are far more time consuming, 5 taking on the order of two to three years to complete and 6 file with the Office of Administrative Law. And this was 7 a quicker approach. 8 --o0o-- 9 EXECUTIVE OFFICER WITHERSPOON: Staff really 10 considered all of the issues mentioned above during the 11 development of the agreement and before we were 12 recommending positions on legislation. We concluded that 13 a negotiated agreement consistent with the state's overall 14 strategies was the most effective approach. It is the 15 only way we can reduce emissions quickly while technology 16 continues to develop, provide for community involvement 17 around all major rail yards, coordinate all rail-related 18 activities efficiently, and establish a cooperative 19 approach with the railroads setting a stage for future 20 reductions. 21 --o0o-- 22 EXECUTIVE OFFICER WITHERSPOON: In summary, we 23 don't believe that abandoning the agreement is a wise 24 course of action. Doing so would forfeit near-term 25 reductions with little possibility of regaining them. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 27 1 Doing so would also undermine the ability to obtain 2 greater mitigation and control in the future. 3 And, finally, this is just one interim step 4 towards achieving our broader comprehensive strategy. 5 And Mike Scheible is going to describe that 6 strategy to you in greater detail. 7 ACTING CHAIRPERSON RIORDAN: Excuse me. 8 Mayor Longville? 9 Mayor Longville. How'd that get -- 10 (Laughter.) 11 ACTING CHAIRPERSON RIORDAN: Excuse me. There 12 was a Mayor Longville, Mayor Loveridge. 13 BOARD MEMBER LOVERIDGE: I noticed that you 14 talked about MOU 3. And I just want to be sure what it 15 was that we agreed to as far as the rules of future MOUs 16 in terms of the way they would take form in the role of 17 this Board. It was my understanding that the rules now 18 are different than they were before. And I wondered if 19 you could identify what changes have taken place. 20 EXECUTIVE OFFICER WITHERSPOON: That is my 21 understanding as well. 22 The Board revisited a resolution that established 23 the roles and powers between the Air Resources Board and 24 the Executive Officer that had not been revisited since 25 1978. And you specified in a new resolution that future PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 28 1 memorandums of understanding would not be undertaken until 2 we notified the Board that we were considering 3 negotiations in a particular area and notified the public 4 also that we were entering into negotiations. 5 Secondly, you required that prior to any such MOU 6 taking effect it must come before the Board for a 7 ratification, an up or down vote, on the content of that 8 MOU. 9 And so to the extent that we are contemplating 10 MOU number 3, it is certainly the decision of the Board, 11 were we able to negotiate such an instrument, and you 12 would decide to ratify it. But what I meant by that, to 13 tell you is it is staff's understanding the only way to 14 accomplish accelerated turnover of locomotives to those 15 with after-treatment for NOx and PM is via a voluntary 16 agreement. And so it is part of our comprehensive 17 strategy to undertake this effort once again. 18 ACTING CHAIRPERSON RIORDAN: Thank you. 19 BOARD MEMBER LOVERIDGE: It would be done in a 20 more public manner? 21 EXECUTIVE OFFICER WITHERSPOON: Yes, it would -- 22 it will be. Though, you know, the ultimate closing deals 23 of negotiations tend to be within a smaller circle of 24 parties. But I guess there'll be a lot more publicity 25 that is going on and what the scope of the negotiations PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 29 1 are on and opportunities for people to comment to us what 2 they would like us to pursue behind closed doors and that 3 sort of thing. But I don't think it will be a negotiation 4 between hundreds of people, because such procedures don't 5 result in any outcome. 6 ACTING CHAIRPERSON RIORDAN: But the Board will 7 certainly be advised over the period of time on an 8 incremental basis? 9 EXECUTIVE OFFICER WITHERSPOON: Absolutely. 10 And I think that was part of that resolution, as 11 I recall. Very, very specific. 12 ACTING CHAIRPERSON RIORDAN: Okay. Mr. Scheible. 13 DEPUTY EXECUTIVE OFFICER SCHEIBLE: Thank you, 14 Catherine. 15 I'd like to provide a short overview of the ARB's 16 past, present and future emissions strategy for rail 17 emissions. 18 --o0o-- 19 DEPUTY EXECUTIVE OFFICER SCHEIBLE: To put the 20 effort in context, it is important to note that the rail 21 emission reduction effort is part of an evolving statewide 22 effort to mitigate emissions from goods movement. We're 23 now in Phase 2 of this effort with the Business and 24 Transportation Agency, and are due to provide 25 recommendations to the Governor by the end of the year. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 30 1 Our eventual goals are to reduce goods-related 2 emissions as needed to mitigate the growth in 3 international trade, achieve regional emission goals -- 4 those are the air quality standards -- and reduce 5 neighborhood risk by the 85 percent goal laid out in the 6 ARB's Diesel Risk Reduction Plan. 7 Regulations to reduce on-road trucks, the use of 8 Carl Moyer incentives will play a role. Rail, truck, 9 cargo-handling equipment and ship emissions must all be 10 vastly reduced over the next 15 years. This will be done 11 through a combination of cleaner fuels, vessel controls, 12 use of shore power and many other measures, and may 13 contain some elements of negotiated agreements. 14 Next slide please. 15 --o0o-- 16 DEPUTY EXECUTIVE OFFICER SCHEIBLE: The rail 17 strategy is a combination of state-level rule making and 18 programs and the accelerated implementation of U.S. EPA 19 rule makings. 20 We are currently obtaining large emission 21 reductions made possible through the 1998 agreement 22 between the Air Resources Board and the railroads. Over 23 the next three years we'll gain additional reductions from 24 ARB's fuel regulations, the 2005 railroad agreement, and 25 rules governing cargo handling equipment at rail yards. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 31 1 We are also strong proponents of the next 2 generation of locomotive controls currently under 3 development by the U.S. EPA. 4 Next slide please. 5 --o0o-- 6 DEPUTY EXECUTIVE OFFICER SCHEIBLE: This slide 7 provides an estimate of the emission reductions we 8 anticipate by 2010 due to the 1998 MOU. In the South 9 Coast locomotives will be 65 percent cleaner in 2010 than 10 they were in 2000. We've accelerated 30 years of turnover 11 of locomotives in a five-year period through that 12 agreement. 13 The agreement will also produce an additional 20 14 tons per day of benefits in the rest of the state because 15 many of the locomotives used to meet the agreement and 16 obligations in the South Coast will travel throughout the 17 state as they come and go from the region. 18 The additional rules and efforts we have 19 developed over the last two years are listed here. 20 --o0o-- 21 DEPUTY EXECUTIVE OFFICER SCHEIBLE: The first two 22 measures are expected to reduce Locomotive particulate 23 emissions around rail yards by more than 20 percent within 24 two years. NOx should be reduced by about 10 percent. 25 The last measure will not affect locomotives but will PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 32 1 greatly reduce the emissions from the equipment that 2 moves, loads and unloads containers at ports and rail 3 yards. 4 If adopted by the Board in December, as we have 5 proposed, we expect a reduction of about 65 percent over 6 the next 10 years. This will further lower risk around 7 those yards that handle intermodal traffic. 8 --o0o-- 9 DEPUTY EXECUTIVE OFFICER SCHEIBLE: Before we can 10 get the full benefits of the available PM and NOx control 11 technology of new locomotives, we need U.S. EPA to act to 12 establish 2003 locomotive emission standards. 13 Next slide. 14 --o0o-- 15 DEPUTY EXECUTIVE OFFICER SCHEIBLE: We will work 16 with U.S. EPA. And we've commented to them last year 17 comprehensively on their rule making to obtain highly 18 effective standards for both locomotives and marine 19 vessels. High level of control will require 20 after-treatment for NOx and particulate traps for PM. 21 We are also promoting more stringent rebuild 22 standards for in-use locomotives, and we'll push for the 23 rule-makings by 2007. 24 We know that the technology for large reductions 25 exists, but it will be challenging to package it on PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 33 1 locomotives and may require significant redesigns. 2 --o0o-- 3 DEPUTY EXECUTIVE OFFICER SCHEIBLE: Once we have 4 obtained those standards is the time we envision returning 5 with the railroads and using the public process as 6 outlined by the Board to negotiate how do we accelerate 7 and get those cleaner locomotives assigned and deployed 8 into California much faster than the natural turnaround. 9 The goal, if we can accomplish this and we have a 10 strong rule making from the U.S. EPA, is we'll meet the 11 overall 90-percent reduction of both PM and NOx from 12 locomotives and their emissions will be commensurate with 13 the other diesel engines that we have control over. 14 That completes my summary of our strategy. And 15 hopefully it allows the Board to put the 2005 agreement 16 into context. That's just one relatively small part of 17 the overall approach. 18 Mr. Terris will now provide information on the 19 legal aspects. 20 --o0o-- 21 SENIOR STAFF COUNSEL TERRIS: Thank you, Mr. 22 Scheible. 23 I'll first discuss the federal preemption issue, 24 which was a major issue raised by legal commenters at the 25 consultation meetings, and then address several other PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 34 1 legal issues that were raised. 2 --o0o-- 3 SENIOR STAFF COUNSEL TERRIS: Most legal 4 commenters argued that the subject matter covered by the 5 agreement is not preempted by federal law, and that ARB 6 and local districts could have adopted enforceable 7 regulations implementing the agreement's key elements. 8 The primary federal provisions that commenters 9 claim do not preempt state or local regulation are the 10 Federal Clean Air Act; the Interstate Commerce Commission 11 Termination Act of 1995, otherwise known as the ICCTA; the 12 commerce clause of the U.S. Constitution and the 13 accompanying judicially created dormant commerce clause; 14 and the Locomotive Boiler Inspection Act. 15 --o0o-- 16 SENIOR STAFF COUNSEL TERRIS: In the 1990 17 amendments to the Clean Air Act Congress added Section 18 209(e)(1)(b), which expressly preempts all states, 19 including California and their political subdivisions, 20 from adopting and enforcing any standard or other 21 requirement relating to the control of emissions from new 22 locomotives or new locomotive engines. Unlike the 23 situation from motor vehicles and most categories of 24 non-road engines, there are no waiver provisions under 25 which California can adopt its own standards. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 35 1 In its final locomotive rule promulgated in 1998, 2 U.S. EPA construed the preemption broadly. The rule 3 defined new locomotives and new locomotive engines 4 differently than U.S. EPA had previously defined new motor 5 vehicles and new non-road engines. For locomotives and 6 locomotive engines U.S. EPA defined "new" to mean not only 7 freshly manufactured, but also remanufactured locomotives 8 and locomotive engines. To go with this broad definition 9 of "new," U.S. EPA stated that the preemption lasted up to 10 133 percent of the useful life of the new locomotive and 11 new locomotive engine. 12 --o0o-- 13 SENIOR STAFF COUNSEL TERRIS: As interpreted by 14 U.S. EPA, the preemption prohibits states and local 15 jurisdictions from adopting emission standards and other 16 requirements that relate to the control of emissions or 17 affect the design or manufacture of the locomotive or 18 locomotive engine. Nearly all legal commenters agree that 19 a state or local regulation requiring idling reduction 20 devices on new or remanufactured engines would be 21 preempted under Section 209(e)(1)(b), as well as any 22 requirement that would direct the railroads to add 23 retrofit devices. 24 Additionally, efforts to recast the rule or 25 regulation as performance based with installation of an PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 36 1 idling reduction device as a much less onerous option to 2 stringent time-based idling requirements -- idling limits 3 requirements and recordkeeping requirements would still be 4 susceptible to a preemption challenge. 5 Element 3 at this time may or may not be 6 preempted. Under the agreement the parties must still 7 address the actual contents of the visible emissions 8 program. It's still too early to make a definitive 9 determination whether the program would exceed U.S. EPA's 10 in-use smoke emissions testing program. 11 --o0o-- 12 SENIOR STAFF COUNSEL TERRIS: One of the key laws 13 that state or local in-use operational controls may be in 14 conflict with the ICCTA. The ARB's attorneys have 15 concluded that the ICCTA could potentially preempt most of 16 the key elements of the agreement were they to be adopted 17 as regulations by ARB or districts. The federal statute 18 was adopted pursuant to congressional authority granted 19 under the commerce clause of the U.S. Constitution. The 20 ICCTA created the Surface Transportation Board and 21 expressly stated that STB has exclusive jurisdiction over 22 transportation by rail carriers and any remedies that may 23 be necessary with respect to railroad operations and 24 facilities. 25 Transportation has also been broadly defined to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 37 1 include locomotives and rail yards. 2 --o0o-- 3 SENIOR STAFF COUNSEL TERRIS: The STB, the expert 4 administrative agency overseeing the act, and several 5 federal courts have held that the ICCTA preemption is very 6 broad, limiting states and local agencies from enforcing 7 rules that affect interstate rail transportation. 8 For example, the 5th Circuit Court of Appeals in 9 the 2001 case Friberg versus Kansas City Southern Railway 10 found a broad preemption under the ICCTA as it applies to 11 a state law directly regulating railroad operations. The 12 Court found that a Texas statute prohibiting railroad 13 trains from blocking roadways was expressly preempted. 14 The Court stated that the regulation of railroad 15 operations has long been a traditionally federal endeavor 16 to better establish uniformity in such operations and 17 expediency in commerce. And It appears manifest that 18 Congress intended the ICCTA to further that exclusively 19 federal effort at least in the economic realm. 20 In a 1998 case of City of Auburn versus United 21 States, the 9th Circuit Court of Appeals found the ICCTA 22 to contain a very broad preemption and that the law 23 applies to environmental regulations and not just local 24 economic laws and regulations. 25 ARB has serious concerns that the ICCTA could PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 38 1 preempt the operational idling control requirements of 2 Program Element 1; the requirement of Program Element 2 3 that the railroads use low sulfur car diesel fuel or EPA 4 on-road diesel fuel on interstate locomotives; and the 5 requirements of Program Element 3, visibility inspection 6 program. 7 In light of the STB rulings in case law, ARB 8 attorneys believe that the ICCTA preemption might be found 9 to apply to ARB or district regulations imposing the 10 agreement's elements on low sulfur diesel fuel, 11 identification and repair of locomotives with excessive 12 smoke, phasing out nonessential idling, and requiring the 13 installation of anti-idling devices. 14 --o0o-- 15 SENIOR STAFF COUNSEL TERRIS: Congress adopted 16 the ICCTA pursuant to its authority under the commerce 17 clause to enact federal statutes regarding interstate 18 commerce. As stated, the Courts and STB have found that 19 the congressional intent in adopting the ICCTA was to 20 broadly preempt state and local agencies from adopting 21 regulations that may affect railway operations and 22 interfere with interstate commerce. 23 The "Dormant Commerce" clause applies where 24 Congress has not acted and the courts are faced with 25 questions of whether the local law interferes with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 39 1 interstate commerce. Since Congress has directly acted in 2 this area, it would seem that the "Dormant Commerce" 3 clause would not apply. 4 --o0o-- 5 SENIOR STAFF COUNSEL TERRIS: The federal 6 preemption under the Locomotive Boiler Act seems very 7 similar in scope to the Federal Preemption and Clean Air 8 Act Section 209(e)(1)(b) and, as most commenters have 9 indicated, would likely be preempted -- would likely 10 preempt Program Element 1's requirement regarding 11 installation of idling reduction devices and any state or 12 local rule that would require installation of such 13 devices. 14 --o0o-- 15 SENIOR STAFF COUNSEL TERRIS: Next I'll discuss 16 several other legal issues that have been raised. 17 --o0o-- 18 SENIOR STAFF COUNSEL TERRIS: Whether or not the 19 agreement could be considered a project under CEQA, the 20 California Environmental Quality Act, guidelines, staff 21 believes that the agreement would be exempt under Title 14 22 CCR Section 15061(b)(3) from undergoing CEQA analysis 23 because the agreement will not adversely affect the 24 environment. As the guidelines state, where it can be 25 seen with certainty that there is no possibility that the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 40 1 activity in question may have a significant effect on the 2 environment, the activity is not subject to CEQA. The 3 agreement will create emission reductions -- will create 4 emission reductions, not create emissions. 5 --o0o-- 6 SENIOR STAFF COUNSEL TERRIS: The agreement is 7 not covered under the Administrative Procedure Act. The 8 agreement is a voluntarily agreement between the railroads 9 and ARB. The agreement is not a rule, regulation or 10 airborne toxic control measure mandating specified action 11 by the railroads. Rather it is a mutual agreement under 12 which the railroads have voluntarily agreed to perform 13 specific obligations that will result in significant 14 short-term emission reductions in exchange for ARB 15 agreeing on a statewide program that will avoid the 16 railroads from being confronted with a potential patchwork 17 of local regulations that would possibly be challenged in 18 court. 19 That concludes my presentation. And I would now 20 turn it over to Mr. Eric White. 21 ACTING CHAIRPERSON RIORDAN: There is a question 22 from the Board. 23 Dr. Gong. 24 BOARD MEMBER GONG: I'm not a lawyer and I'd just 25 like to know, from my watching television -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 41 1 (Laughter.) 2 BOARD MEMBER GONG: There must be precedence or 3 previous cases, of states or subdivisions of states, 4 trying to crack the federal preemption. That must be the 5 situation. Am I correct? 6 SENIOR STAFF COUNSEL TERRIS: There are numerous 7 cases that have gone before both the -- Transportation 8 Board, and which were then reviewed by federal courts 9 and -- both district and appellate courts. And the 10 decisions have overwhelmingly found that the preemption 11 outlaws -- or prevents states and local districts from 12 basically enacting rules and regulations that would apply 13 to interstate railroad operations. 14 BOARD MEMBER GONG: So, in essence, you're saying 15 that the -- I guess it's the Supreme Court -- the Supreme 16 Court or appellate courts, I guess -- 17 SENIOR STAFF COUNSEL TERRIS: The 9th Circuit, as 18 I stated in Auburn -- City of Auburn versus the United 19 States, found that local -- local cities could not 20 basically create permitting guidelines that would prohibit 21 the railroads from -- that would force them to go through 22 a permitting process. 23 And then in the City of Friberg -- I mean Friberg 24 versus Kansas City Railroad, in that case it was basically 25 an operational control type situation where a -- the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 42 1 railroad parked its locomotives in front of a street 2 crossing and basically drove a nursery business out of 3 business because people could no longer get to the 4 nursery. And the courts found -- Texas developed this -- 5 created a statute that made it a criminal offense for the 6 railroads to do that. And the 5th Circuit Court of 7 Appeals found that that was preempted and that the Texas 8 law was void. 9 BOARD MEMBER GONG: I don't want to get into a 10 list of all these cases. But to simplify, it sounds to my 11 brain that you're saying that these courts have applied, 12 as you've mentioned for other laws, broad interpretation 13 of that preemption or other similar clauses? 14 SENIOR STAFF COUNSEL TERRIS: Basically, yes. 15 There's a line of cases which were cited by the commenters 16 about that health and welfare type rules and regulations 17 can be applied against the local railroads. But those 18 laws have basically -- it was heard by one appellate 19 court. And that court basically said that in dicta, which 20 means that it wasn't part of the decision -- the decision 21 found that there was a preemption. But they basically 22 went on to state that where a local entity wanted to apply 23 general rules like electrical codes or building codes to 24 the railroads just as they would apply it to every other 25 business in the area, that that would possibly be PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 43 1 permitted. But that would be decided on a case-by-case 2 basis. 3 But the cases all seem to indicate that when the 4 regulations and rules are directly -- are directed 5 directly at locomotives or rail yard facilities, then they 6 are preempted. 7 BOARD MEMBER GONG: But that's important. This 8 is history -- legal history, I guess, that shows what the 9 federal level thinks of this, is that -- 10 SENIOR STAFF COUNSEL TERRIS: Right. 11 Historically -- I mean since the -- basically the 12 commenters -- legal commenters have talked about that 13 since the 1820s. Basically it's been a creation of the 14 railroads that have been a national concern that there be 15 a free flow of interstate commerce. And so Congress has 16 basically taken over and applied the commerce clause very 17 broadly to prevent any state or local interference. 18 BOARD MEMBER GONG: Thank you. 19 EXECUTIVE OFFICER WITHERSPOON: Dr. Gong, I would 20 second your remark, that it's a crucial point. And it is 21 precisely why the Air Resources Board has entered into 22 voluntary agreements with the railroads and why the 23 content of those agreements is limited to what railroads 24 are willing to consider as proven, cost-effective, usable 25 technology. And it's not up to us -- it's not entirely up PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 44 1 to us with our discretion to tell them to do more. We 2 need to negotiate over what they will do and settle for 3 the best that we can negotiate, because we cannot order 4 them to do it. 5 ACTING CHAIRPERSON RIORDAN: Okay. Any other 6 questions? 7 All right. Then we'll move on with the next 8 staff report. 9 ENGINEERING EVALUATION SECTION MANAGER WHITE: 10 Thank you. 11 I will now provide a brief overview of the 12 agreements, including a summary of the public reaction and 13 the ARB response. 14 --o0o-- 15 ENGINEERING EVALUATION SECTION MANAGER WHITE: As 16 you previously heard, the agreement is an important 17 component in the ARB's overall locomotive and goods 18 movement emission reduction strategies. This is because 19 locomotives represent a significant source of both NOx and 20 diesel particulate matter emissions throughout the state. 21 --o0o-- 22 ENGINEERING EVALUATION SECTION MANAGER WHITE: As 23 you can see in the table on the left, statewide 24 locomotives emit 160 tons per day of NOx and 5 tons per 25 day of particulate matter. About 80 percent of these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 45 1 emissions occur in five air basins. Statewide, 2 locomotives represent 6 percent of the total mobile source 3 NOx emission inventory and 4 percent of the total mobile 4 source particulate matter emission inventory. 5 --o0o-- 6 ENGINEERING EVALUATION SECTION MANAGER WHITE: In 7 addition to contributing to regional and statewide air 8 quality impacts, locomotives and rail yards can also have 9 significant local impacts. In 2004, ARB staff completed a 10 first of its kind study at the UP rail yard in Roseville. 11 Based on the results from the study, staff concluded that 12 the risk in nearby neighborhoods was high, and that even 13 several miles away from the rail yard neighborhoods were 14 still impacted by elevated risk. Based on these findings, 15 staff believed that other major rail yards in the state 16 need analysis and risk mitigation strategies. 17 --o0o-- 18 ENGINEERING EVALUATION SECTION MANAGER WHITE: As 19 part of the ARB's overall strategy to reduce the impacts 20 of locomotives, on June 24th, 2005, Executive Officer 21 entered into the statewide pollution control agreement 22 with UP and BNSF. The agreement is designed to reduce 23 locomotive emissions throughout the state. And unlike a 24 regulation, it is designed to provide for significant 25 community involvement. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 46 1 --o0o-- 2 ENGINEERING EVALUATION SECTION MANAGER WHITE: 3 The Statewide scope of the agreement also 4 includes an emphasis on the larger rail yards, as shown on 5 this map. As you can see, these rail yards are spread 6 throughout the state, from Portola in the north to San 7 Diego in the south. 8 --o0o-- 9 ENGINEERING EVALUATION SECTION MANAGER WHITE: 10 When fully implemented, the agreement will 11 provide an overall 20 percent reduction in diesel 12 particulate matter emissions near rail yards throughout 13 the state. About half of this reduction will be achieved 14 through new idling restrictions, with the balance coming 15 from fewer smoking locomotives and the use of cleaner 16 diesel fuel. 17 The agreement will also provide additional 18 near-term emission benefits near rail yards through the 19 implementation of risk mitigation measures, and long-term 20 emission benefits through the development and 21 implementation of advance locomotive emission control 22 technologies. 23 --o0o-- 24 ENGINEERING EVALUATION SECTION MANAGER WHITE: I 25 will now provide an overview of the elements of the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 47 1 agreement. 2 --o0o-- 3 ENGINEERING EVALUATION SECTION MANAGER WHITE: 4 The agreement contains numerous elements to 5 reduce locomotive emissions and rail yard risk. These 6 elements include such things as statewide limitations on 7 non-essential idling and the installation of anti-idling 8 devices on intrastate locomotives, the use of ultra-low 9 sulfur diesel fuel, repair requirements for smoking 10 locomotives, and new health risk assessments and risk 11 mitigation at 16 major rail yards. 12 The agreement also provides for significant 13 community involvement throughout its implementation. The 14 agreement is fully binding on the railroads and is 15 consistent with the Assembly Bill 1222 signed by Governor 16 Schwarzenegger, which commits to the evaluation of new 17 remote sensing technology to identify high polluting 18 locomotives. 19 --o0o-- 20 ENGINEERING EVALUATION SECTION MANAGER WHITE: As 21 previously mentioned, the agreement places a high priority 22 on community involvement. There are numerous 23 opportunities for communities and local air districts to 24 work directly with ARB staff and the railroads to 25 implement the elements of the agreement. These include PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 48 1 regular periodic progress reports to communities on the 2 implementation of the rail yard mitigation measures and 3 community discussions on the development and findings of 4 the health risk assessments. 5 --o0o-- 6 ENGINEERING EVALUATION SECTION MANAGER WHITE: 7 The first element of the agreement establishes 8 locomotive idling restrictions throughout the state. 9 These restrictions apply to all locomotives operating in 10 all areas of the state. The idling restrictions 11 established a 15-minute idle limitation for locomotives 12 that are equipped with anti-idling devices. 13 The agreement also requires that all of the 14 approximately 450 intrastate locomotives operating in 15 California be equipped with anti-idling devices within 16 three years. Locomotives not equipped with anti-idling 17 devices must meet a 60-minute idle limitation except under 18 specific circumstances. 19 --o0o-- 20 ENGINEERING EVALUATION SECTION MANAGER WHITE: 21 Under the agreement the railroads have also 22 agreed to continue to use a significant amount of on-road 23 ultra-low sulfur diesel fuel six years early. 24 The agreement also prescribes that the railroads 25 establish a visible emission evaluation and repair program PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 49 1 in California to ensure that at least 99 percent of the 2 locomotives operating in the state meet applicable smoke 3 limitations. This program is different from existing 4 state and local air district opacity requirements, which 5 specify opacity limits. The agreement acknowledges the 6 difference between the two and clearly states that 7 existing opacity limits are not affected by the agreement. 8 --o0o-- 9 ENGINEERING EVALUATION SECTION MANAGER WHITE: 10 Under the agreement 16 new health risk 11 assessments will be performed at designated rail yards 12 throughout the state within 30 months. It should be noted 13 that while the risk assessment performed in Roseville took 14 four years to complete, staff believes that the lessons 15 learned from that effort should allow these new risk 16 assessments to be completed more expeditiously. 17 --o0o-- 18 ENGINEERING EVALUATION SECTION MANAGER WHITE: In 19 order to expedite the implementation of measures to reduce 20 the impact of air emissions from rail yards, the railroads 21 must develop plans to implement changes to reduce rail 22 yard emissions on adjacent communities. 23 --o0o-- 24 ENGINEERING EVALUATION SECTION MANAGER WHITE: 25 The agreement commits to the continued evaluation PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 50 1 of future technologies which may achieve additional 2 emission and risk reductions. Under the agreement the 3 railroads have committed to fund $3 1/2 million towards 4 this effort. 5 --o0o-- 6 ENGINEERING EVALUATION SECTION MANAGER WHITE: 7 The agreement is enforceable at both the state 8 and local level and provides for significant penalties, of 9 up to $1200 per day per locomotive for violations of the 10 idling or smoking locomotive repair requirements, and up 11 to $40,000 per month for failure to implement specific 12 program elements. 13 As previously mentioned, the agreement is 14 structured to maintain both state and local enforcement 15 authority of existing opacity and nuisance statutes and 16 regulations and should not interfere with the adjudication 17 of appropriate violations. 18 --o0o-- 19 ENGINEERING EVALUATION SECTION MANAGER WHITE: As 20 you will likely hear in testimony later, the agreement 21 contains a clause which releases the railroads from 22 complying with certain individual program elements if more 23 stringent federal requirements become applicable or if the 24 state or local government agency adopts overlapping rules 25 or regulations. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 51 1 While the railroads can invoke the release clause 2 for a specific program element if an overlapping 3 requirement is enacted, the railroads can opt to continue 4 to element in other areas of the state and all of the 5 other program elements remain in effect. 6 The release clause does not affect any existing 7 or future authorities or the rights of any individual or 8 entity. It is intended to promote a uniform statewide 9 approach to reducing locomotive emissions, which provides 10 consistent requirements for the railroads throughout the 11 state and ensures all California citizen realize the 12 benefits of the agreement. 13 --o0o-- 14 ENGINEERING EVALUATION SECTION MANAGER WHITE: 15 Next is a brief overview of the public reaction 16 to the agreement and the Board's and ARB staff's 17 responses. 18 --o0o-- 19 ENGINEERING EVALUATION SECTION MANAGER WHITE: 20 When the agreement was announced numerous 21 parties, including elected officials, local air district 22 staff, environmental organizations and the public, 23 objected. At that time many commenters indicated that the 24 agreement was developed with no public input and that in 25 general its provisions were weak. In response the Board PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 52 1 took a number of actions. 2 First at the July 24th, 2005, hearing the Board 3 approved Resolution 05-40 to address future agreements. 4 The Board also decided to review the agreement 5 and directed staff to conduct two public meetings to share 6 information on the agreement and solicit comments from the 7 public and other interested stakeholders. 8 The Board also committed to conduct today's 9 special meeting to receive public comment and determine 10 how to proceed relative to the current agreement. 11 --o0o-- 12 ENGINEERING EVALUATION SECTION MANAGER WHITE: 13 Staff conducted two public consultation meetings 14 in August of this year. Over 350 people attended these 15 meetings. At both meetings staff presented information on 16 the program elements of the agreement, discussed key 17 issues, and accepted both verbal and written public 18 comments. Community groups, elected officials 19 environmentalists, local air districts, and business were 20 represented. A Large majority of those providing 21 testimony expressed opposition and requested that the 22 Board rescind the agreement. 23 --o0o-- 24 ENGINEERING EVALUATION SECTION MANAGER WHITE: In 25 response to these comments staff prepared two responsive PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 53 1 documents. The first was a staff report released October 2 13th, 2005. Additionally, on October 24th, ARB legal 3 staff released a report responding to the legal issues 4 raised. Both documents were posted on the ARB website and 5 notification of their release was sent to various lists 6 maintained by ARB staff. 7 In addition, staff has conducted individual 8 meetings with stakeholders to solicit additional comments. 9 This concludes my presentation. I'll turn it 10 back over to Ms. Witherspoon. 11 ACTING CHAIRPERSON RIORDAN: Ms. Witherspoon, 12 before you begin, there was a question. 13 Dr. Gong. 14 BOARD MEMBER GONG: I've been drinking coffee. 15 (Laughter.) 16 BOARD MEMBER GONG: Sorry. 17 ACTING CHAIRPERSON RIORDAN: Do you watch 18 television when you drink coffee? 19 (Laughter.) 20 BOARD MEMBER GONG: Your slide 59 about 21 enforcement provisions. Who does the monitoring and who 22 does the enforcement in the MOU? Just briefly, I guess 23 you -- 24 DEPUTY EXECUTIVE OFFICER SCHEIBLE: I can address 25 that. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 54 1 Under the MOU, ARB inspectors can do the 2 enforcement and monitoring. If we get complaints from 3 citizens, we can follow up on those. And there's a 4 provision in the MOU for districts, if they want to 5 basically go through a training program, and then they can 6 act as our agents for the enforcement. That's for things 7 affecting an individual locomotive. 8 The agreement also contains multiple provisions 9 for reports and meetings to make sure that the overall 10 elements are being met. And we will follow and monitor 11 that very carefully. 12 BOARD MEMBER GONG: Second question. If tomorrow 13 we rescind -- the MOU is rescinded, can that 20 percent 14 improvement in diesel exhausts -- can that be made up in 15 the same time frame by other means 16 DEPUTY EXECUTIVE OFFICER SCHEIBLE: We won't be 17 able to do anything that will obtain that type of 18 reduction from the railroads in any short period of time. 19 And as presented, our legal ability to actually compel 20 that by a regulation will -- is tenuous at best. 21 EXECUTIVE OFFICER WITHERSPOON: And the Board is 22 already regulating every other diesel source category as 23 quickly as we can bring rules to you. So there is no 24 surplus category from which we can get 20 percent 25 additional PM reductions that we weren't already counting PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 55 1 on getting from those categories in their own right. 2 BOARD MEMBER GONG: Thank you. 3 ACTING CHAIRPERSON RIORDAN: Ms. Witherspoon, you 4 want to conclude now? 5 --o0o-- 6 EXECUTIVE OFFICER WITHERSPOON: Well, just a 7 wrap-up. As we indicated, state law does require the Air 8 Resources Board to achieve the maximum feasible reductions 9 in railroad emissions. And we have brought to you what 10 staff feels is the best that can be accomplished at this 11 juncture in time, which is a 20 percent emission reduction 12 in particulate. If you direct us to go back and work 13 further with the railroads to reopen, renegotiate, the 14 likelihood of fundamentally changing the agreement is 15 quite low. 16 If you decide to abandon the agreement and pursue 17 regulations instead, we believe they would be extremely 18 vulnerable, and if we were sued, would not stand. And at 19 best, emission benefits would be delayed; at worst, we 20 would lose them outright. 21 --o0o-- 22 EXECUTIVE OFFICER WITHERSPOON: So we have come 23 to you with a recommendation to support the agreement -- 24 The next slide. 25 --o0o-- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 56 1 EXECUTIVE OFFICER WITHERSPOON: -- As one part of 2 our comprehensive strategy. It is certainly not perfect, 3 but it is an important interim step. 4 And also, beyond the general legal concern about 5 preemption that was raised in many of the commenters 6 letters, they've also addressed questions of clarity. We 7 and the railroads are quite comfortable that we have a 8 meeting of the minds, as one would hope for in a 9 contractual type of agreement. But we recognize that 10 parties not present in the room don't have the same level 11 of comfort. And so we are quite willing to sit down with 12 the railroads and work out a parallel letter to the 13 agreement that clarifies the terms within it, so that we 14 can provide that level of comfort to other stakeholders. 15 Also, we think it's important to keep you 16 regularly apprised of our implementation progress and 17 suggest a reporting interval of six months initially and 18 then annually thereafter. And then we will redouble our 19 efforts to work with communities. We can't go back and 20 undue their lack of participation in the agreement. But 21 we were quite sincere about writing them into the 22 evaluation of health risk assessments, the development of 23 further mitigation measures, and we will enhance those 24 efforts even more. 25 That's our recommendation. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 57 1 ACTING CHAIRPERSON RIORDAN: All right. Board 2 members, are there any questions for staff now at this 3 time? 4 Dr. Gong, are you -- all right. Dr. Gong. 5 BOARD MEMBER GONG: I must admit I agree with the 6 comments that the MOU has some vague and unclear terms, 7 open to interpretation. I thought we paid lawyers to get 8 it exact. I saw that on TV. 9 (Laughter.) 10 BOARD MEMBER GONG: You know, I mean you set 11 yourself up in a sense because of that. And I think it's 12 an obvious statement, okay, if you read it. 13 And I don't know if it was done on purpose. 14 Maybe you wanted wiggle room. I really don't know. But 15 all I'm saying is it's more ambiguous than I would have 16 thought a lawyer-crafted document should be, even in 17 everyday business. And I can't -- look at your will, look 18 at all these other things, all the legal mumbo jumbo that 19 goes into it. 20 Maybe there should be a parallel layperson's 21 statement to parallel that. 22 But I do think that there are very unclear 23 statements here and there, phrases and terms, words that 24 are open to interpretation therefore, that wars can be 25 caused by that, as you know. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 58 1 So I just wanted to bring that out and sort of to 2 support what you said. 3 EXECUTIVE OFFICER WITHERSPOON: Right. And then 4 just to repeat the other part of what I said, is because 5 we spent a year talking about it, we're quite clear what 6 we meant even if it didn't come through in the actual 7 language. But for the purposes of people outside of the 8 room, we're happy to clarify what was intended. And we 9 may discover that we assumed things about each other's 10 points of view, and that the clarification exercise will 11 be good for all of us. 12 ACTING CHAIRPERSON RIORDAN: And also, may I say, 13 Dr. Gong, when we do have some of those testifying today 14 that were party to it -- and I'm speaking of the 15 railroads -- you may want to ask them and put that on the 16 record what their interpretation was. And we'll have 17 staff's interpretation. And we'll at least have that on 18 the record. 19 Ms. Kennard. 20 BOARD MEMBER KENNARD: I just had a quick 21 question. 22 ACTING CHAIRPERSON RIORDAN: You're going to have 23 to get closer. These microphones require closeness. 24 BOARD MEMBER KENNARD: I apologize. 25 I have a quick question. And I'm sure it's in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 59 1 this voluminous report, but I'm not sure I can find it. 2 What was the term of the original 1998 MOU and 3 what would be the proposed term of this agreement? 4 EXECUTIVE OFFICER WITHERSPOON: The 1998 MOU has 5 no termination clause. But the effective requirements are 6 accomplished by 2010. And so it always left open the 7 question of what would we do after 2010? Would we come 8 back and negotiate another agreement? But it neither has 9 terminated nor expanded after that date. 10 The current MOU effectively achieves its specific 11 control requirements within three years' time. But the 12 health risk assessments, which are done in 30 months, set 13 up a dialogue through which additional mitigation measures 14 that are unspecified will come forward. They aren't 15 quantified in any respect. 16 So it will sort of carry on in a not totally 17 defined way. And I think what will intersect it is MOU 18 number 3, which we've talked about, which is beyond what 19 you can do at a specific yard, how you can deal with the 20 traffic pattern, where locomotives sit and idle, you know, 21 adjacent to fence lines and houses and such, what hours 22 the maintenance facility is operating, those sorts of 23 things that affect livability in the communities around 24 it. The next big round will be: How do we get 25 after-treatment on all these locomotives? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 60 1 ACTING GENERAL COUNSEL JENNINGS: Just to add. 2 The agreement does provide that it will remain in effect 3 until December 31st, 2015, unless terminated by voluntary 4 agreement. 5 BOARD MEMBER KENNARD: The new -- the proposed 6 agreement? 7 ACTING GENERAL COUNSEL JENNINGS: That's correct. 8 BOARD MEMBER KENNARD: The 1998, does it remain 9 in effect or is it effectively superceded by this new MOU? 10 EXECUTIVE OFFICER WITHERSPOON: Well, Mr. 11 Scheible just indicated to me there's a 2030 termination 12 date in the 1998 MOU. But it's not superceded. It is 13 augmented by MOU number 2, because the original MOU was 14 for NOx and the current MOU is for particulate. So they 15 address different aspects of -- 16 BOARD MEMBER KENNARD: So we will effectively 17 have two MOUs operating -- 18 EXECUTIVE OFFICER WITHERSPOON: That's correct, 19 operating simultaneously. 20 ACTING CHAIRPERSON RIORDAN: Mayor Loveridge. 21 BOARD MEMBER LOVERIDGE: If you could comment on 22 the report back in six months and annually thereafter, 23 that it seems the premise of this is sort of good will so 24 the obvious trust could verify. The report back could be 25 a descriptive report or it could be a -- some sort of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 61 1 report card, some sort of measurement progress. And it 2 seems to me if progress is not being made, there ought to 3 be at least a termination option. So what is before the 4 Board is not simply a descriptive report, but rather a 5 report which has some consequences, both in evaluation and 6 in potential action. So I would ask you: What do you 7 mean by report back in six months? 8 EXECUTIVE OFFICER WITHERSPOON: The Board has at 9 any time the authority to rescind the agreement, to say we 10 wish not to be a part of it. The agreement that staff 11 entered into said if the railroads do not fulfill their 12 requirements, we will go through graduated penalties and 13 arbitration. And does not talk about the possibility of 14 termination, because it is our intent to get the emission 15 reductions rather than to walk away. And then we hope 16 that the penalty clauses ensure that outcome. 17 But if you find that it's all underwhelming, you 18 may certainly direct or by your own vote terminate at 19 those intervals or any interval you choose -- 20 BOARD MEMBER LOVERIDGE: I think I understand 21 that. But I guess I really was asking the nature of this 22 report, whether it's an evaluation of what is taking place 23 or whether it's simply a description of -- you know, we 24 always get reports which talk about all the activities. 25 But is there going to be evaluation in the consequences PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 62 1 and the kind of reductions that are called out -- 2 DEPUTY EXECUTIVE OFFICER SCHEIBLE: Clearly, 3 given the amount of concern and the Board's concern about 4 this, I think this would be more than just a status 5 report. We've got the mechanism in the agreement to 6 follow very closely what is happening, are all the things 7 being implemented, is our understanding and the railroad's 8 understanding proceeding, are we getting the emission 9 reductions? Issues that have come up very much around the 10 release clause, are there situations where that has been 11 dealt with really and has been exercised or not? 12 So we will be in a position to tell the Board, 13 "Here's what we anticipated and here's what we're 14 getting." And is it meaningful and close to what was 15 agreed upon or are there problems with it? And if there's 16 problems with it, what should we do to either fix the 17 problems or decide the agreement is not working? 18 BOARD MEMBER LOVERIDGE: So it's not a status 19 report, it's an evaluation? 20 DEPUTY EXECUTIVE OFFICER SCHEIBLE: Yes. 21 EXECUTIVE OFFICER WITHERSPOON: Yes. And I 22 should have said too, there are very specific milestones 23 in the report for percent of locomotives equipped with 24 anti-idling devices; for example, percent of fuel 25 purchased. And the railroads will be submitting their PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 63 1 records to us of fuel purchases to make those 2 calculations. And so we will be able to give you 3 quantitative, not just qualitative, assessments of how 4 it's going. 5 ACTING CHAIRPERSON RIORDAN: Thank you, Mayor 6 Loveridge. That was a good question. 7 Yes, Mr. Scheible. 8 DEPUTY EXECUTIVE OFFICER SCHEIBLE: I have a 9 little perspective on it. We believe that the railroads 10 entered the agreement in good faith. And they entered it 11 and they considered very carefully all of its provisions. 12 And they intend to implement them faithfully. And the 13 structure of the agreement in terms of enforceability is 14 mostly related to us knowing that that's happening and 15 then, second, putting in conditions, financial penalties 16 and others, to encourage or make it happen. So we will be 17 in good -- very good position to tell the Board and 18 communicate to the public, yes, this is working as planned 19 or as anticipated or, no, it's not. 20 ACTING CHAIRPERSON RIORDAN: And I might add that 21 I would welcome the railroads when they testify to go on 22 the record saying that they did enter it in good faith. I 23 think that would be an important statement for them to 24 make. 25 Are there any other questions? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 64 1 Mr. Berg. 2 BOARD MEMBER BERG: On the termination clause, do 3 you comment -- I have heard that the termination clause is 4 being used by the railroads to maybe not address some 5 issues in some new negotiations with increasing intermodal 6 activities and things like that, that they're referring 7 back to this MOU as kind of the catchall that this 8 agreement is what guides them as to what they're going to 9 do or not going to do. 10 So if they are going in to a new program like an 11 expansion program and things like that, could you just 12 comment, does this MOU color those types of negotiations 13 in any way? 14 EXECUTIVE OFFICER WITHERSPOON: I would say to 15 you that the railroads certainly prefer to interact with 16 one governmental entity and to craft an agreement that 17 would hold for all times and all circumstances. But 18 because other localities, other governmental ideas may 19 have different ideas, and we neither have the authority 20 nor the inclination to dictate to them how they use their 21 authority, what we ended up agreeing to in this 22 negotiation was the railroad's ability to quit if the 23 actions of other governmental entities made continuing 24 compliance with our agreement untenable. 25 And so they certainly do testify before other PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 65 1 bodies that they have an agreement with us, and that it 2 should be sufficient, that it represents best available 3 technology, that it need not be duplicated. But there are 4 other entities who have chosen and may choose in the 5 future to say, "I want it done a little bit differently." 6 There are discussions going on at the Port of L.A. and 7 Long Beach about what those entities as leaseholders might 8 compel of their lessees. Though those have not yet been 9 exercised, it's dialogue, and, for example, whether they 10 might require the use of liquefied natural gas instead of 11 diesel fuel. For which we have no corollary agreement 12 exactly, so I'm not sure what might be invoked. 13 In the South Coast District, the district has 14 already adopted a regulation for health risk assessments 15 that is different from the one in the agreement. And I 16 think you can ask the railroads when they come up will 17 that or won't that cause them to pull out of the agreement 18 to do health risk assessments elsewhere in California, 19 will it affect the schedule in any way? And then South 20 Coast is contemplating other regulations in the future 21 that might have different impacts on the railroad's 22 ability to carry on with ours. 23 But we have not by our action taken anyone's 24 authority away. We have presented them with choices. 25 There is a statewide agreement. They may avail themselves PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 66 1 of it or they may attempt to go their own way. And as 2 they attempt to go their own way, there is both the 3 consequences they face, vis-a-vis federal preemption, and 4 now a new consequence that they may be unsettling a 5 statewide agreement. And that's just the reality. So 6 they will have to note that in their CEQA analysis. But 7 it in no way prohibits another governmental entity from 8 proceeding. 9 BOARD MEMBER BERG: Now that you brought up the 10 CEQA analysis, does it put any undue burden on the other 11 agencies, regardless of who it is, a process in that CEQA? 12 Do they have to do analysis as to how that might affect 13 the statewide MOU if in fact the rail yards decide to pull 14 out of that? And is there a weighting issue between 15 what's happening statewide and what's happening in the 16 various agency that is trying to put in their own 17 regulation? 18 EXECUTIVE OFFICER WITHERSPOON: I think that it 19 would need to be disclosed that there is an interaction 20 between local actions and state compacts. But local 21 entities often make findings of overriding considerations, 22 whatever the environmental impacts might be, of a project 23 they're considering and then go forward. 24 Also it is our understanding that the railroad 25 agreement in no way interferes with ordinary CEQA PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 67 1 mitigation requirements; that if, for example, there is a 2 new rail operation coming to town, what must be analyzed 3 for that operation and what might be required as CEQA 4 mitigation for new traffic, new facilities, et cetera. 5 Now, there will be federal preemption issues there as 6 well. But I think it's fair to say we've now been joined, 7 but it's not determinative. 8 BOARD MEMBER BERG: And, finally, could you 9 comment on the fact that -- most of the community 10 interaction that I have had just strongly feels that ARB 11 and the community were in dialogue prior to the MOU, and 12 felt that they were working side by side, even though they 13 understood they were working on one path and ARB was 14 working on the another path. And they just feel that that 15 communication stopped. And so there seems to me that we 16 missed a step or -- could you just comment on our 17 perspective, because I'm a little confused on that. 18 EXECUTIVE OFFICER WITHERSPOON: Well, it's hard 19 to put myself in the mind of every single person that's 20 commented. But certainly there has been consternation and 21 concern over the fact that ARB has not agreed with 22 communities since the outset over how to approach railroad 23 emissions. And prior to this legislative year, there were 24 bills in the Legislature that ARB opposed that attempted 25 to get at railroads in a way we thought was preempted. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 68 1 And we advised the Governor to oppose those bills, and he 2 did, and they failed passage. They did not make it to his 3 desk. And the community members that were sponsoring 4 those bills were outraged, "How could you do that? That 5 was our bill. We have the right to decide what should 6 prevail within our community." And we said, "It doesn't 7 work that way in the State Legislature. We're obliged 8 under the process of government to advise the 9 administration on what we believe will happen under the 10 legislation and whether it's good public policy or pad 11 public policy." 12 And so we had a parting of the ways. And when 13 this legislative year began, the communities came in once 14 again and said, "We've tinkered with our bills. We're 15 reintroducing them. And we want you to support them." 16 And we said, "We can't do that. They're essentially the 17 same as last year. They're still preempted. They still 18 create problems with the prior MOU. And what we really 19 need to do is work out another approach with the 20 railroads." 21 And I think the community members, here in 22 southern California in particular, have a strong 23 preference to follow the lead of the South Coast Air 24 Quality Management District and it's strategy, which is to 25 push the legal envelope and to take on the risk of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 69 1 litigation in the hopes that they will prevail. And we, 2 as we indicated in our presentation, have a strategic 3 disagreement with the South Coast as well, and it's 4 influencing our relationship with the communities. 5 Because most of them don't have lawyers, haven't studied 6 the preemption statutes themselves. So they see one 7 governmental entity saying, "We can get more." They see 8 the Air Resources Board saying, "It's not true. We have 9 to settle for less." And so of course they pick the one 10 that's more aggressive because they want as much control 11 as they can possibly have. 12 And that I think is really where the 13 communication gap lies. 14 BOARD MEMBER BERG: Thank you very much. 15 ACTING CHAIRPERSON RIORDAN: Superintendent 16 DeSaulnier, I'm going to call on you. But I'm also 17 mindful of several people that have indicated their need 18 to speak. 19 So while Supervisor DeSaulnier is asking some 20 questions, I want to indicate to Senator Lowenthal and 21 Assemblymember Gloria Negrete McLeod that you'll be next. 22 And if you just go over by the microphone, I'll turn to 23 you as soon as we finish these questions by Supervisor 24 DeSaulnier. 25 Does that put some pressure on you, Supervisor PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 70 1 DeSaulnier? 2 (Laughter.) 3 BOARD MEMBER DeSAULNIER: As opposed to Dr. Gong, 4 I haven't been drinking any coffee. 5 (Laughter.) 6 BOARD MEMBER DeSAULNIER: I don't know whether it 7 puts pressure on me or just urges me to -- I guess I'll 8 defer until after the members of the Legislature -- 9 ACTING CHAIRPERSON RIORDAN: No, you can ask your 10 question please. I didn't mean it. 11 BOARD MEMBER DeSAULNIER: No, no, Barbara. I 12 know, I know. 13 Well, just briefly. I mean Catherine already 14 knows that I'm going to try throughout the rest of the 15 afternoon and evening not to -- my angst is mostly over 16 the process and also over the next MOU. And I think 17 that's -- for those of us who are in retail politics and 18 for those of us who live through the SIP hearings and the 19 ozone hearings in the Bay Area realize that politics in 20 the Bay Area has its own dimension. Although I think you 21 have a similar situation here in the South Coast. 22 But just briefly, because I think we'll be 23 talking about those issues all afternoon and evening, when 24 you were negotiating this, Catherine, did you consider the 25 effects on both the goods movement that Secretary McPeak PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 71 1 and Secretary Lloyd are working on? Because obviously 2 that will affect those -- this will affect those 3 discussions. And also the effect on the considerable 4 outreach that the Board's put in to the EJ community? 5 So I'm concerned, you know -- and again this is 6 the retail politics aspect of -- goods movement and the 7 rail industry obviously is going to have a huge effect. 8 And I am one who believes we should have more rail. But 9 as NRDC has said in the past, and I was reminded of it 10 earlier today, more rail but cleaner rail in terms of 11 goods movement. So obviously that's a big component of 12 whatever we do on goods movement. And this -- and the 13 ability to negotiate that obviously has a problem. 14 And then -- I'm seeing raised hands. So why 15 don't I just let that go for a minute and go ahead and let 16 the speakers go ahead. But the two questions, I'll come 17 back to it after them. 18 EXECUTIVE OFFICER WITHERSPOON: Okay. I'll write 19 them down so -- 20 BOARD MEMBER DeSAULNIER: The effect on goods 21 movement, the effect on EJ, and then I'll finish my 22 comments. 23 ACTING CHAIRPERSON RIORDAN: Thank you, 24 Supervisor DeSaulnier. Appreciate that. 25 I'm not sure who is going to go first. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 72 1 But assembly member are you ready to go first 2 and -- 3 ASSEMBLYWOMAN NEGRETE McLEOD: Yes. I'm ready. 4 And I will -- I think you have testimony. 5 Madam Chair, members, audience. What I'm going 6 to say is that I will turn this in. And it's concerning 7 the memorandum of understanding between the Air Resources 8 Board, Burlington Northern and Santa Fe Rail Company and 9 the Union Pacific Company. 10 Dear Chairman Riordan -- Chairwoman: I am 11 concerned regarding the memorandum of understanding 12 currently entered into the California Air Resources Board 13 staff and the BNSF and the UP Railroad Company. This MOU 14 lacks the fundamental credibility that an agreement of its 15 stature demands. There must be a place at the negotiating 16 table for input from the Legislature, relevant state and 17 local government agencies, and public interest groups. 18 Without the participation of these entities this MOU lacks 19 legitimacy considering the impacts this agreement will 20 have on our communities. 21 I understand that inclusion of these parties in 22 negotiation would have an impact on the implementation of 23 the policies as this MOU is currently drafted, but this is 24 a necessary component of open government. 25 Another fundamental flaw of this MOU is that it PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 73 1 contains a release agreement section stating that the 2 parties agreed that the participating railroads shall not 3 be required to comply with more than one agreement, 4 regulation, statute or other requirement to meet the same 5 goal of any program element contained in this agreement. 6 It would be folly to think that better remedies 7 to the problems addressed in those MOUs could not be 8 clarified in the near future by other local air agencies, 9 legislation or from the federal government. If anything, 10 this agreement could be drafted with the thought that it 11 could be enhanced and improved by future collaboration and 12 subsequent review and change. 13 I have been a state legislator for five years and 14 I can predict two things: First, there will be 15 legislation in the near future that would affect the 16 agreement between the CARB and the railroads. Secondly, 17 there will be a time when the federal government will 18 decide to address the environmental needs of communities 19 located near rail infrastructure. 20 Unfortunately, we are only in the beginning 21 stages of the process of improving the quality of our air 22 in our communities. That is why I am taking the 23 opportunity to express my concern about this MOU and to 24 implore the Board to consider working with all affected 25 parties to draft a more comprehensive and representative PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 74 1 MOU. 2 And I thank you. 3 I just want to let you know that as a legislator 4 and the Chair of the Alameda Corridor East, we have been 5 very involved with these particular issues. And my 6 district just happens to lie east of here. And we have 7 the railroads running right through it and the two 8 freeways that go right on alongside it. So this 9 implements -- this actually affects my district quite, 10 quite heavily. Not only this, but the goods movement and 11 everything that you have been talking about. 12 And I thank you so much for your time. 13 ACTING CHAIRPERSON RIORDAN: Well, and I -- 14 ASSEMBLYWOMAN NEGRETE McLEOD: Okay. Three 15 seconds. 16 (Laughter.) 17 ACTING CHAIRPERSON RIORDAN: You did a wonderful 18 job and I appreciate that. 19 ASSEMBLYWOMAN NEGRETE McLEOD: Well, I'm known 20 for my brevity in the Legislature. 21 (Laughter.) 22 ACTING CHAIRPERSON RIORDAN: And we appreciate 23 the fact that you came today. I often think when a 24 legislator actually takes the time to be at a hearing 25 that's way away from their, you know, office, that that's PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 75 1 rather special. And I do thank you for that. 2 ASSEMBLYWOMAN NEGRETE McLEOD: Well, I'm not 3 going to take that much credit. It's not that far by the 4 freeway. 5 (Laughter.) 6 ACTING CHAIRPERSON RIORDAN: Unless there's some 7 accident up in front of you. And then it's quite a ways. 8 ASSEMBLYWOMAN NEGRETE McLEOD: But like I said, 9 having Chaired the Alameda Corridor East for the last five 10 years and being smack dab in the middle of both freeways 11 and the rails, it impacts my district quite, quite a bit. 12 ACTING CHAIRPERSON RIORDAN: Yes, absolutely. 13 Thank you so much. 14 Thank you. 15 Senator Lowenthal. 16 SENATOR LOWENTHAL: Thank you. And I appreciate 17 having this opportunity to be with you this afternoon. 18 And it's been very informative being here to be part of 19 it. 20 But I'm here today to really represent and speak 21 for the people of my district. And I think it's important 22 for me to say that so that they can be heard. 23 The district that I represent, the 27th Senate 24 District, runs from the Port of Long Beach up the 710 25 corridor to the many cities that surround the 710, to the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 76 1 91 and the 105 freeways. So we're the gateway cities, 2 we're the end of the chain for goods movement. 3 Our district as well as all of southern 4 California is tremendously negatively impacted by the 5 enormous air pollution which is caused by trains, trucks, 6 and ships. 7 I'm concerned about this MOU because, as we've 8 heard today, as I've already written to the Board, the 9 people who live in the areas of elevated cancer risk, who 10 have the highest -- among the highest levels of asthma, 11 which now more and more is linked to diesel particulates, 12 to the people who face premature death due to diesel 13 pollution, as the evidence is mounting everyday, they were 14 not consulted, they were not briefed about this agreement 15 before it was signed and executed. 16 I understand that this memorandum of 17 understanding was done in the same manner that the MOU 18 that CARB entered into in 1998. But, however, everyone 19 needs to realize that air pollution is now the number one 20 environmental concern for Californians. Today, as opposed 21 to seven years ago, we know far more about the effects of 22 diesel pollution on us. The MATES II study showed us 23 about the elevated cancer risk from this pollution, as 24 well as the many other studies, especially coming from 25 UCLA and USC, including the recently released draft report PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 77 1 from this agency too. 2 I'm not singling out any one sector, any one 3 agency, any one part of the problem. But all of us 4 together need to aggressively reduce air pollution from 5 all sources. 6 I was not involved in the drafting of the MOU. 7 And it's only been a couple of months since it was 8 announced. And I was really glad to hear the overview 9 today. And I don't know if this is the best answer for 10 reducing toxic emissions from locomotives. But I do know 11 that we're all going -- this is just the beginning and 12 we're all going to have to pull together to reduce this 13 cancerous pollution and we can't let anything stop us. 14 Because as I pointed out, let's be real clear, people in 15 my district and in southern California are dying from this 16 pollution. Let's call it what it is. 17 And as your states, we need to have the 18 flexibility to reduce pollution from all sources in the 19 future. And speaking of that flexibility, I'm also 20 especially concerned that this MOU will have a chilling 21 effect upon the introduction of future legislation. I've 22 introduced a number of bills that deal with air quality. 23 I chaired the Environmental Quality Committee in the State 24 Senate. And many of them have to do directly with rail 25 yards, some of them don't. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 78 1 I have a bill, for example, that's passed through 2 the California State Senate, that's in the State Assembly, 3 that could be soon to the Governor's desk. And that's the 4 bill SB 764, which is no net increase in pollution. As 5 the ports grow economically, which we do support the 6 growth of goods movement, that we begin to set regula -- 7 or sets limits in terms of the amount of increased 8 pollution that could also develop. 9 I'm concerned that this will have a chilling 10 effect. And this could potentially lead either to the 11 Legislature stepping away from creative either this or 12 other legislation, or also potentially could lead to the 13 railroads abandoning the MOU. 14 So in conclusion, I want you to reconsider this 15 MOU. We need to involve the people that this pollution 16 impacts. They're the people that are out there that are 17 suffering the most from the particulates. I appreciate 18 everything that the people in this room have done, the 19 extensiveness and the comprehensiveness of the report that 20 we heard today. But we still have a lot of work to do. 21 And we can't leave these folks who are living with both 22 the congestion and the pollution out of the loop. 23 As many people have pointed out in our part of 24 this region, we live in a diesel death zone. And the only 25 way we can fix it is if we work collaboratively and we PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 79 1 acknowledge how serious the problem is and that we all 2 have to work together. 3 Thank you for your time. 4 ACTING CHAIRPERSON RIORDAN: Thank you, Senator 5 Lowenthal. 6 (Applause.) 7 ACTING CHAIRPERSON RIORDAN: There's a question. 8 Senator, just a moment. 9 Dr. Gong. 10 BOARD MEMBER GONG: I wanted to say thank you for 11 your words of wisdom. I also want to congratulate you. I 12 believe you recently received a clean air award from the 13 South Coast Air Quality Management District. 14 SENATOR LOWENTHAL: Yes 15 BOARD MEMBER GONG: Congratulations. 16 SENATOR LOWENTHAL: Thank you, Dr. Gong. 17 BOARD MEMBER GONG: But I also have a question. 18 SENATOR LOWENTHAL: I'm also not an attorney 19 either. 20 (Laughter.) 21 BOARD MEMBER GONG: I'm not a legislator. But 22 that's the question. 23 SENATOR LOWENTHAL: But you could be. 24 BOARD MEMBER GONG: No, no. I've got enough 25 problems. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 80 1 (Laughter.) 2 BOARD MEMBER GONG: Question -- and you actually 3 applied this to a certain extent. Does the current MOU as 4 fashioned, does that inhibit or restrict your role as a 5 legislator who's intimately concerned about air quality? 6 SENATOR LOWENTHAL: Well, that's what -- it may. 7 I'm not saying it will, because as was pointed out, there 8 are certain preemptive things that we made. And we're not 9 saying that the Legislature can solve all of these. And 10 as was pointed out by Catherine, there are times when ARB 11 has to oppose bills because of the ability of the 12 Legislature. But there are a tremendous amount of gray 13 areas where we must be able to push the envelope. We in 14 California must. And that's the part that scares me, the 15 way it's done, that this could have a chilling effect upon 16 our ability to push the envelope. 17 We don't want to stop development. But we want 18 to do it in a way that protects our citizens. And we're 19 real concerned in our part of the state. Because if we 20 don't, people are not going to tolerate this condition 21 much longer. They must be listened to. 22 ACTING CHAIRPERSON RIORDAN: Thank you very much, 23 Senator. And we look forward to working with you and your 24 staff. 25 SENATOR LOWENTHAL: Thank you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 81 1 (Applause.) 2 ACTING CHAIRPERSON RIORDAN: All right. Now, I'm 3 going to go back and I'm going to jump around a little 4 bit. I do have my witness list. I do know those persons 5 that need to leave, and I'm going to try to work you in as 6 best I can. 7 But I also had an intent, which was, after the 8 staff presentation I wanted to give an opportunity to the 9 South Coast District and the other districts that are 10 represented here today for their comments. 11 So I'm going to jump back a little bit and move 12 to -- the first person that I have on my list from the 13 South Coast is Jim Clouet, is it? You're going to have to 14 pronounce the name for me. 15 And then I'd like to call on South Coast Board 16 Member Jan Perry. So if you'd come here. And we have 17 some chairs along the side that you could be at. 18 And then Cynthia Verdugo-Peralta from South 19 Coast. 20 So, Jim, would you like to begin. 21 (Thereupon an overhead presentation was 22 Presented as follows.) 23 MR. GREENWALD: Thank you very much. My name is 24 Peter Greenwald. I am Senior Policy Advisor for the South 25 Coast Air Quality Management District. We had intentioned PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 82 1 to have a number of South Coast representatives speak 2 today. And it was arranged that I would be the first. So 3 if you don't mind -- 4 ACTING CHAIRPERSON RIORDAN: Well, that's fine. 5 MR. GREENWALD: -- me stepping out of order, I'd 6 appreciate it. 7 ACTING CHAIRPERSON RIORDAN: You can be out of 8 order as long as I can find you somewhere down here. 9 MR. GREENWALD: Thank you very much. 10 I want to thank you for holding this hearing on 11 this important issue. In addition to being Senior Policy 12 Advisor, I previously served for ten years as General 13 Counsel to the AQMD. 14 I'm going to address one of our key concerns with 15 the MOU, which is the release clause, sometimes called the 16 termination clause or poison pill, as well as what 17 benefits would be lost if you rescind the MOU. 18 We heard again today that a goal of the MOU is to 19 promote statewide uniformity. 20 --o0o-- 21 MR. GREENWALD: The MOU promotes uniformity 22 through a release clause that deters local emission 23 control efforts. That clause allows the railroad to end 24 their obligations under the MOU throughout the state if a 25 state or local government tries to enforce a requirement PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 83 1 addressing a goal of the MOU. 2 --o0o-- 3 MR. GREENWALD: A similar release clause in 4 CARB's 1998 locomotive MOU has been used by the railroads 5 to oppose local controls on locomotives proposed by the 6 Port of Los Angeles and by South Coast AQMD. 7 --o0o-- 8 MR. GREENWALD: It has also been used to oppose, 9 both by the railroads and CARB itself, state legislation 10 that would merely impose a mitigation fee on railroad 11 companies. 12 --o0o-- 13 MR. GREENWALD: The railroads have even argued 14 that before the AQMD may adopt locomotive rules, it must 15 prepare an environmental impact report under CEQA 16 assessing the adverse impacts if they terminate the MOU. 17 The 1998 MOU was criticized because of this 18 release clause and the closed negotiating process by which 19 it was arrived at. 20 Once again, in the 2005 MOU the public and 21 government entities against whom the new release clause 22 could be used were excluded from the MOU development 23 process. And in this case the release clause is even 24 broader than in the prior case. 25 --o0o-- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 84 1 MR. GREENWALD: Here's an example of why we are 2 concerned. A new intermodal rail yard is proposed to be 3 built across the highway from this school and near 4 numerous other schools and residences in Long Beach and 5 Wilmington. The proposed yard is on public land. So the 6 city as a landlord has legal authority to determine 7 whether and under what conditions to permit its use. The 8 federal preemption analysis prepared by your staff did not 9 address this authority of the city as a market 10 participant. This a theory that the South Coast District 11 has successfully used in maintaining large portions of its 12 fleet rules in litigation. 13 We asked your staff whether or not the release 14 clause could be invoked by the railroads if a city or 15 county imposes environmental conditions in such project 16 approval or leases. We have not received their response. 17 We are concerned that the language of the MOU may 18 allow the railroads to threaten a city or county with 19 termination of the MOU statewide simply because the city 20 or county tries to protect its residents. 21 --o0o-- 22 MR. GREENWALD: Turning now to the benefits of 23 the MOU that would be lost if it were rescinded. Those 24 benefits are very limited, and virtually all could be 25 achieved through means other than the MOU. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 85 1 Some key points: 2 Visible emissions. Enforcement programs have 3 already been implemented by the South Coast AQMD that are 4 demonstrably more stringent than all provisions of the MOU 5 on this issue. 6 Remote sensing. AB 1222, a bill sponsored by the 7 South Coast District, will implement provisions identical 8 to the MOU. 9 Health risk assessment. The South Coast District 10 has recently adopted a rule with more specific 11 requirements for health risk assessments at an earlier 12 date. 13 --o0o-- 14 MR. GREENWALD: Risk and Emission reduction 15 plans. This should be the cornerstone of the MOU. 16 However, there are no health risk goals in the MOU and 17 there's not one word in the MOU saying when emission 18 control plans have to be implemented or that they must be 19 implemented at all. 20 Key enforceability issues: 21 Idling. The anti-idling devices that are 22 required by the MOU for a relatively small portion of 23 locomotives actually save the railroads money. And we 24 think that any rational corporation would install them 25 without an MOU. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 86 1 --o0o-- 2 MR. GREENWALD: In conclusion, we believe that 3 the benefits of the MOU do not justify the harm it could 4 create. We urge you to rescind the MOU or, at a minimum, 5 eliminate the termination clause. 6 Finally, we also ask you to support efforts by 7 state and local governments to achieve additional public 8 health benefits. 9 Thank you. 10 ACTING CHAIRPERSON RIORDAN: Thank you. 11 Staff, was there a comment to the issue of an 12 EIR? 13 SENIOR STAFF COUNSEL TERRIS: If I could just 14 talk briefly about the release clause and market 15 participant's exemption for the -- for another line of 16 cases that go under a municipal proprietorship exemptions. 17 We did not discuss that issue at the bargaining 18 table and how it would apply to the release clause. And 19 it's one issue that we need to address and will attempt to 20 get clarified. 21 The release clause does talk about agreements. 22 But we cannot -- we did not anticipate or have any clue 23 that the railroads would use their lease agreements with, 24 say, the Port of Los Angeles as a way to get out of their 25 obligation statewide. So we would -- we believe that it's PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 87 1 necessary to go back and just get clarification that -- 2 ACTING CHAIRPERSON RIORDAN: Okay. And we also 3 may get some clarification later today when they testify. 4 Maybe I'll ask that question. It seems to me to be a 5 little bit different and pretty separate sort of issues 6 that we're talking about here. 7 SENIOR STAFF COUNSEL TERRIS: And then the second 8 issue I guess is the rail yard settings, new rail yards. 9 And that basically just got covered under the preemption 10 discussion earlier, that we believe that that largely 11 would be preempted by federal law. 12 ACTING CHAIRPERSON RIORDAN: Mayor Loveridge and 13 then Ms. Kennard. 14 BOARD MEMBER LOVERIDGE: The general question 15 is -- that often when you have EIR reports when there are 16 questions asked, there's always a series of specific 17 responses to them. But the question that Peter was -- 18 which is sort of a mayor's question about land use -- the 19 argument is that the local jurisdictions somehow cannot 20 set rules for their use in their own community, is that 21 the position you're taking? 22 SENIOR STAFF COUNSEL TERRIS: Well, basically -- 23 and Mr. Jennings can add to it -- is basically that the 24 courts have been clear that when it comes to permitting 25 programs, that they are preempted under the err Interstate PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 88 1 Commerce Termination Act. 2 BOARD MEMBER LOVERIDGE: So wherever the 3 railroads will go, at any time they go, they -- there is 4 no local land-use authority that affects siting, buffer, 5 idling, anything? 6 EXECUTIVE OFFICER WITHERSPOON: Mayor Loveridge, 7 I think there's two answers to the question. The first 8 Mr. Terris gave was that we did not talk about the market 9 participation theory during our negotiations. While that 10 doctrine has existed for some time, it's only very 11 recently been applied in the environmental context. And 12 it's still being litigated with respect to the South Coast 13 fleet rules. 14 It is of course a theory at play in the Port of 15 Los Angeles and Port of Long Beach deliberations over what 16 kind of controls they might attempt to apply. And it has 17 been asserted by environmental groups in those 18 negotiations, by the South Coast Air Districts, that they 19 could use market participation theory. The ports 20 themselves are not convinced that they can. And so I 21 would not say it is already the strategy of the ports. 22 And then the second answer to the question is 23 there has not been case law on that specific use of 24 municipal power in purchasing requirements to test its 25 exemption from railroad preemptions. But what has been PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 89 1 adjudicated is ordinances, environmental regulations, 2 state statutes pertaining to locomotives blocking roadways 3 and that sort of thing. 4 So I would argue the entire area is gray. But -- 5 and it's certainly the staff's obligation to clarify 6 between ourselves and the railroads, do they intend to 7 invoke the release clause if the ports or any other 8 governmental entity attempts to use lease authority and 9 purchasing requirements to get at some of these measures? 10 And you can ask them the same question when they testify 11 later today. 12 ACTING CHAIRPERSON RIORDAN: Okay. Ms. Kennard. 13 BOARD MEMBER KENNARD: I have two questions. I'm 14 not clear when you asked for the rescission. Is it for 15 the 1998 and the current agreement or just this current 16 agreement? 17 MR. GREENWALD: The current 2005 agreement. 18 BOARD MEMBER KENNARD: And the other question to 19 staff: Is there a release clause in the 1998 agreement? 20 And if not, why is it necessary here? 21 EXECUTIVE OFFICER WITHERSPOON: There is a 22 release clause in the '98 agreement that says if the state 23 attempts to impose any other requirement pertinent to the 24 rail yards -- excuse me -- the railroads, that they may 25 leave that agreement. And that release clause has been PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 90 1 the subject of legislative debate: If by the Governor's 2 own signature authorizing, for example, a new emissions 3 mitigation fee on railroads, is the imposition by the 4 state of another requirement, would that set up the 5 conditions under which the '98 agreement could be 6 terminated? 7 The railroads were consistent in wanting release 8 clauses in both MOUs. They consider them vile to 9 protecting their economic interests. And this one is a 10 little bit different because so much more has been going 11 on since the '98 agreement was negotiated. 12 BOARD MEMBER KENNARD: So can I clarify or -- I'm 13 a bit confused. The 1998 release clause is more palatable 14 than the current release clause or -- I'm not quite 15 sure -- from your standpoint. The question really is to 16 the South Coast. 17 MR. GREENWALD: Yeah. The release clause in the 18 1998 MOU is narrower in scope. By that I mean that under 19 the new MOU there are many more circumstances under which 20 the railroads can threaten to terminate the MOU. And the 21 reason for that is that the release clause in this current 22 MOU says that if any local government or state government 23 adopts any requirement addressing any of the goals of this 24 MOU, the railroads can terminate that element of the MOU 25 statewide. The goals of the MOU do not have to be guessed PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 91 1 at. They are stated in the MOU very broadly. They cover 2 everything from sulfur content fuels to idling to risk 3 reduction, risk assessment, all sorts of things. 4 And so many, many kinds of things, in fact 5 anything that's of significance, we are worried that a 6 local government might do would allow the railroad to 7 threaten to terminate. 8 ACTING CHAIRPERSON RIORDAN: Okay. Thank you 9 very much. 10 Oh, I'm sorry. Ms. Berg. 11 BOARD MEMBER BERG: If we were to rescind the MOU 12 and then we don't have agreement with a railroad, what is 13 the difference between not having any MOU at all and 14 passing local district rules than having an MOU in place 15 until the local district rules are passed and then them 16 terminating it? 17 MR. GREENWALD: Well, again, we believe the 18 existence of this MOU will be a deterrent to local 19 government action. We do not believe that the emission 20 reductions achieved by the MOU justify that. 21 EXECUTIVE OFFICER WITHERSPOON: We've made that 22 argument to the district, Mrs. Berg, that if they wish for 23 the MOU to be terminated, they need only continue with 24 their rule-making activity; and when the railroads find it 25 untenable, they will terminate. They don't need you to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 92 1 terminate the MOU. 2 And your continuance of the MOU is actually 3 protection for all other air districts in the state. 4 Because even with the list of measures that were presented 5 on the South Coast slide, they're within the South Coast 6 District's boundaries, and they don't address the 80 7 percent of emissions outside their boundaries or the rail 8 yards outside their boundaries. 9 MR. GREENWALD: Can I respond to that? 10 ACTING CHAIRPERSON RIORDAN: Well, no, because -- 11 and I'll tell you why. I have a whole list of speakers, 12 and we aren't going to finish if I allow a debate. And I 13 know that that's the great urge, but I think we're moving 14 on. 15 And I need to know who's going to follow you. If 16 you were -- what was the agreed order? 17 MR. GREENWALD: Board Member Jan Perry. 18 ACTING CHAIRPERSON RIORDAN: Fine. Thank you so 19 much. 20 L.A. CITY COUNCILWOMAN PERRY: Thank you very 21 much, Madam Chair. I appreciate the opportunity to speak. 22 And I'm here -- I guess I should identify myself. 23 Councilwoman Jan Perry, City of Los Angeles, and also a 24 South Coast Air Quality Management District Board Member, 25 here to urge you today to take action on the MOU that I PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 93 1 believe upholds the people's right to clean air to the 2 greatest extent, and also to respect their right to 3 participate in the process. 4 I represent much of south Los Angeles. That 5 includes the rail line on Slauson. And I just want to 6 take a few seconds to tell you what kind of neighbors the 7 railroads have been in my community. 8 They have blocked intersections well beyond the 9 time allowed, causing idling both north and south in our 10 residential communities; degraded the intersections; left 11 the right of way on either side of the line filthy, in 12 spite of the fact that when I was even first elected I 13 went directly to the lines that ran through the district 14 and asked them, "Please clean it," or in the alternative, 15 allow us to clean it and then charge them back. In both 16 cases I was told no. 17 The most egregious experience that I had was 18 having to talk to the railroads -- railroad, one company 19 in particular, about picking up the carcass of a dead dog 20 and basically being ignored, told no. And eventually, you 21 know, we had to take care of that. 22 It is a line that cuts through a residential 23 community that I represent, right in their backyards. I 24 guess you can imagine the level of impact this has on 25 people who are living there and raising their families. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 94 1 I believe that the MOU as currently drafted does 2 not provide the maximum degree of health protection and 3 certainty of emission reductions as might have been 4 obtained through other means. 5 I think that you may agree with me that the 6 public does have a right to participate, comment, and 7 review the provisions as they are developed. And I don't 8 believe that has been the case here. 9 The AQMD board also agrees with the public that 10 legislation and regulation are preferred over private 11 agreements with a purpose of trying to reduce or mitigate 12 these impacts of these major polluters. If I had may way, 13 I'd take it much more to the extreme, because the people I 14 represent have to live with this each and everyday. 15 So, I'd like to urge your Board to rescind the 16 MOU today. I think if you do that, you'll demonstrate an 17 understanding of what I've shared with you, about how the 18 railroads disrespect communities like mine, and continue 19 to do so with impunity. By doing so you'd be sending the 20 message to people that you serve and that I serve and to 21 put one of the largest sources of air pollution on notice 22 that you are serious about the impacts of railroad 23 pollution. 24 And I have no idea how the vote's going to go 25 today. But if you choose not to cancel the agreement, I PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 95 1 urge you and I implore you at the very minimum to delete 2 the release clause that allows the railroads to terminate 3 their obligations under the MOU statewide when a local 4 government attempts to enforce any requirement addressing 5 the MOU. 6 Removing this clause would be a step in 7 protecting the health of those people who are impacted 8 directly by toxic diesel emissions released by these 9 trains and their operations, and particularly the higher 10 emitting engines. 11 And I want to thank you for allowing me to say 12 this on the record. 13 ACTING CHAIRPERSON RIORDAN: Thank you very much. 14 And we appreciate the fact you're here today and 15 representing your constituents. 16 (Applause.) 17 Cynthia Verdugo-Peralta. 18 MS. VERDUGO-PERALTA: Good afternoon, Madam Chair 19 and CARB Board members. I am Cynthia Verdugo-Peralta. 20 I'm the Governor's appointee to the South Coast AQMD 21 Governing Board. I thank you for the opportunity to 22 address you on this very important matter. 23 As a life-long resident of southern California, I 24 have witnessed the air quality improvements in our region, 25 having lived and worked in all four counties throughout my PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 96 1 life. I have been an AQMD Board member for the past five 2 years. I'm serving my second term. And I know how 3 diligent my agency has worked towards attaining healthful 4 air quality for all of our residents. 5 As a child I also lived across the street from 6 railway tracks in the City of Commerce, and I know 7 firsthand the impacts of idling trains and diesel air 8 pollution generated by locomotives. 9 As a parent of two asthmatic children and the 10 wife of a chronic asthmatic, whose backyard was the 11 railway tracks, I know firsthand how poor air quality 12 impacts children, and sometimes for the rest of their 13 lives as in my husband's case, limiting their ability to 14 enjoy outdoor activities, as well as causing them to miss 15 school and work. My husband has been hospitalized several 16 times for respiratory ailments. We almost lost him on one 17 of these occasions. This is just one example of what 18 happens when a child grows up in a low income minority 19 community alongside a source of daily pollution and whose 20 family did not have the means to combat the increasing 21 threat of diesel pollution. Both his siblings are also 22 chronic asthmatics. 23 This threat of daily pollution has only increased 24 throughout our basin due to the increase in movement of 25 goods. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 97 1 It, therefore, falls on the state and the local 2 governments to have a strong commitment to protecting 3 these residents, who often do not have the resources to 4 move away from these areas, but are impacted by emissions 5 from both stationary and mobile sources. 6 I believe the ARB has made a good-faith effort to 7 serve the communities in many areas related to 8 environmental justice. Our AQMD staff has worked closely 9 with the ARB staff and other agencies to bring government 10 closer to the people we serve. It, therefore, pains me to 11 see such good-faith efforts undermined completely by this 12 MOU. 13 It also forgets one of the guiding principles of 14 environmental justice, that of public participation, which 15 was not offered nor solicited in this case. The fact that 16 the MOU was signed just days before significant 17 legislation, sponsored by community groups along with the 18 AQMD, was to be considered by the Legislature makes me ask 19 the question, "Why?" What was the urgency? Why didn't 20 the ARB staff allow the process of the committee meetings 21 to go forward? Instead of being the backstop if the 22 committee meetings failed, the ARB staff thwarted the 23 possibility of a stronger agreement with the railroads. 24 Right now we will never know what that outcome 25 could have been. More importantly, this could have been a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 98 1 victory for the people who are affected by the source of 2 pollution. Instead it is the railroads who are the 3 victors sitting on the sidelines watching two agencies 4 fight over this issue, when we all should have been 5 working together. 6 The affected residents really don't care which 7 agency has the rule, as long as somebody does and as long 8 as it works. We should have been working together side by 9 side, shoulder to shoulder in this effort. As a -- 10 ACTING CHAIRPERSON RIORDAN: Cynthia, I'm going 11 to need a concluding remark. 12 MS. VERDUGO-PERALTA: Okay. As a result one of 13 the terrible outcomes of this MOU appears to be to 14 discourage state and local governments from taking any 15 more stringent actions in deference to the weaker 16 provisions contained in the MOU. 17 We need to protect the public health. It is our 18 job to do so. But this MOU hamstrings us. 19 ACTING CHAIRPERSON RIORDAN: Okay. Thank you 20 very much. 21 (Applause.) 22 ACTING CHAIRPERSON RIORDAN: Let me -- I'm going 23 to take the next person from the South Coast. And then I 24 want to ask if Lawrence Westey is still here from Santa 25 Clarita? Is he here? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 99 1 Yes. Is this the gentleman that's standing up? 2 All right. I apologize. He may have had to have 3 left. 4 Yes. If you would give us your name. 5 MR. WIESE: Thank you, Madam Chair. I'm Kurt 6 Wiese. I'm the District Counsel for the South Coast 7 District. 8 (Thereupon an overhead presentation was 9 Presented as follows.) 10 MR. WIESE: Madam Chair, a couple months ago we 11 sent you and the other members of the Board three legal 12 opinions on the relationship of the MOU to the preemption 13 issue that we've heard discussed here this morning. And I 14 wanted you to understand that those legal opinions were 15 drafted by very eminent attorneys with very long and 16 distinguished records of public service. 17 Seth Waxman, who is the former Solicitor General 18 of the United States, prepared one of the opinions. The 19 Solicitor General represents the United States Government 20 before the Supreme Court. And his opinions are so heavily 21 relied upon by the Supreme Court that he's often referred 22 to as the tenth justice. 23 One of the opinions was drafted by Cruz Reynoso, 24 who's currently a law school professor at the UC Davis 25 College of Law. He was on the California Supreme Court PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 100 1 from 1982 to 1987. 2 And then, finally, David Nawi, who's with us here 3 today and who you'll here from next, who was CARB's 4 General Counsel from 1979 to 1989. 5 And as you know, each of these opinions concluded 6 that the provisions of the MOU could have been adopted as 7 regulations free from preemption, with a single exception. 8 And that single exception is the requirement to install 9 anti-idling devices. But the opinions point out that that 10 element of the MOU could have been accomplished by a 11 performance standard. 12 Last Tuesday night, late in the evening, we 13 received a response from your legal staff, a response to 14 these legal opinions. And that response was in the form 15 of a 37-page memo that's been summarized by Mr. Terris 16 here this evening. And upon receiving that memo, we 17 circulated it among the three attorneys who provided these 18 opinions. And we all spent a lot of time going over your 19 staff's legal opinion. And I have to tell you that after 20 spending a lot of time looking at the analysis, we 21 concluded that there was absolutely nothing there that 22 would cause any of us -- and I include these three 23 attorneys here -- that would cause any of us to change our 24 opinion that the elements of the MOU could have been 25 accomplished by regulation without preemption. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 101 1 And I have a joint written response that I'd like 2 to provide to you. 3 ACTING CHAIRPERSON RIORDAN: And we appreciate 4 that. We'll make that part of the record. 5 MR. WIESE: Who should I give it to, Madam Chair? 6 ACTING CHAIRPERSON RIORDAN: Well, that's a good 7 question. 8 The clerk. But I think our ombudsman will meet 9 you halfway. 10 And then I'm going to remind you you're getting 11 very close to the end of your testimony. 12 MR. WIESE: I see that I am. And with that, 13 Madam Chair, I'd like to turn the floor over to Mr. David 14 Nawi. 15 ACTING CHAIRPERSON RIORDAN: Okay. I'm sure that 16 we could get staff to copy that report. Mayor Loveridge 17 requests that for the Board please. 18 MR. WIESE: I have a copy for each of the Board 19 members. 20 ACTING CHAIRPERSON RIORDAN: Oh, he made copies. 21 Now, that was very nice of you. I do appreciate 22 that. Thank you. 23 MR. NAWI: That you, Madam Chair. My name is 24 David Nawi. I'm with the law firm of Shute, Mihaly & 25 Weinberger. We have been working on this issue with the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 102 1 South Coast Air Quality Management District for several 2 months. I very much appreciate the opportunity to come 3 here and address your Board. 4 As indicated by Mr. Wiese, I was General Counsel 5 of the Air Resources Board from 1979 to 1989. And on a 6 personal note, I see a lot of my good old friends and 7 professional colleagues, for whom I have very high regard, 8 sitting here before you today. 9 Turning to the substance of the matter before 10 you. As indicated by Mr. Wiese, you were furnished in the 11 course of a workshop process three lengthy legal 12 opinions -- mine was 20 pages, Mr. Waxman's was 15 -- each 13 of which concluded that, except for the anti-idling 14 provision, the provisions of the MOU would not be 15 preempted. 16 And I'm not going to expect you to go through and 17 read every case and every decision of the Surface 18 Transportation Board to make up your own minds on that 19 issue. But I would like to make some salient points. 20 In response to Dr. Gong's question earlier when 21 Michael Terris responded, Mr. Terris indicated -- and I 22 think it's absolutely correct -- that these cases are 23 decided on a very fact-specific analysis. And we 24 performed that analysis regarding the provisions of the 25 MOU. And it is our conclusion that they would in fact PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 103 1 survive preemption. And they would survive preemption not 2 only under Section 209(e) of the Clean Air Act, which is 3 what Ms. Witherspoon in her letter of June 29th I believe 4 wrote that she was relying on to the district, but also 5 under the Interstate Commerce Commission Termination Act, 6 the ICCTA. We went through very carefully and looked at 7 the provisions, the potential effect on the railroad, and 8 determined that, with the exception of the anti-idling 9 provisions, these -- the anti-idling devices rather, the 10 provisions of the MOU would not be preempted by any 11 federal authority and would not run afoul of the commerce 12 clause. 13 Regarding the anti-idling provisions, we think 14 that, contrary to what your staff is telling you, that a 15 performance standard is permissible under the law and 16 would not be preempted. So the same result could be 17 obtained by requiring -- by limiting the amount of time 18 locomotives could idle. 19 Turning to a second issue. The staff agrees that 20 several elements of the MOU are in fact not preempted. 21 And we appreciate their candor in stating that. These 22 elements include a health risk assessment, data 23 collection, monitoring and training. That tells you one 24 thing right off the bat: That it was something other than 25 a concern for preemption that motivated those provisions PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 104 1 to be included in an MOU rather than as binding 2 regulations. And as you know, to adopt those regulations, 3 on the front-end you have a full public process, where the 4 issue is not decided in the backroom; it's decided in the 5 light of day by your Board in light of public testimony. 6 And at the back-end those provisions and regulations are 7 enforceable under the enforcement provisions of the 8 California Health and Safety Code. 9 ACTING CHAIRPERSON RIORDAN: Mr. Nawi. 10 MR. NAWI: One final point, if I could? 11 ACTING CHAIRPERSON RIORDAN: One final short 12 point. 13 MR. NAWI: A short final point. Basically, 14 you've heard about expanding the envelope, pushing the 15 envelope. We think that the 37-page analysis provided by 16 your staff has the opposite effect. It shrinks the 17 envelope. It could constrain the authority of the 18 Legislature, any local agency, and your Board in the 19 future by laying out a very broad and, in our view, 20 incorrect view of the limits of federal preemption. I 21 would encourage you to distance yourself as far possible 22 from that reading of the law, because I think it's harmful 23 to you and other agencies in the State of California, and, 24 at a minimum, not to endorse it. 25 Thank you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 105 1 ACTING CHAIRPERSON RIORDAN: Thank you very much. 2 Any questions, Board members? 3 All right. Moving right along. The next speaker 4 from South Coast. 5 If you'd give us your name please. 6 MR. MIERAS: Good afternoon. My name is Peter 7 Mieras. I'm the Chief Prosecutor for the South Coast 8 AQMD. 9 I've held this position for the last 10 years and 10 I've been prosecuting air cases for the last 16 years. My 11 office handles between 1500 and 2500 such cases every 12 year. 13 Reviewing the MOU from a prosecutor's 14 perspective, I have identified the following deficiencies: 15 Number 1: With regard to the visible emission 16 reduction requirements and penalties, the MOU departs from 17 and may seriously undermine the standard of care 18 established by the inspection, maintenance and repair 19 agreements aggressively negotiated by the South Coast AQMD 20 in the mid-1990s with the three major railroads operating 21 in the South Coast Air Basin. 22 Our agreements were hinged to the Ringleman 23 opacity standard set forth in the California Health and 24 Safety Code. The MOU has no discernible standard. 25 Our agreement set forth detailed, exact and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 106 1 frequent inspection, maintenance, repair and reporting 2 requirements. The MOU has vague and infrequent measures 3 for reducing visible emissions. 4 Our agreements require a smoking locomotive to be 5 taken out of service within 10 to 18 hours. The MOU 6 provides up to four days. 7 Our agreements required a smoking locomotive to 8 pass an opacity meter test prior to being putting back in 9 service. The MOU imposes no such requirement. 10 Our agreements imposed an incenting level of 11 penalties based upon the seriousness of a visible emission 12 violation. The MOU imposes no such penalties. 13 Under our agreements we could seek injunctive 14 relief in superior court to enforce any part of the 15 agreement. Under the MOU, injunctive relief is expressly 16 prohibited. 17 Our agreements imposed additional penalties for 18 program-wide failures such as the failures to inspect, the 19 failure to repair, the failure to submit required reports. 20 The MOU imposes no such penalties. 21 No such penalties. Is that what I'm going to 22 hear the next time I negotiate with the railroads over a 23 smoking locomotive ticket? 24 Number 2: With regard to the idling reduction 25 requirements and penalties, the MOU allows the railroads PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 107 1 to terminate any program component if an agency or 2 political subdivision of California adopts or attempts to 3 enforce any requirement addressing the goal of any program 4 component of the MOU. How will this affect my ability to 5 take enforcement action in my district to protect members 6 of the public from nuisance events caused by idling 7 locomotives? 8 When the South Coast AQMD hearing board issues an 9 order for abatement with detailed and exact requirements 10 for terminating a public nuisance caused by idling 11 locomotives, as it did for the unfortunate residents 12 living near the Slover siting in the City of Colton, will 13 these new requirements open a trap door for the 14 abandonment by the railroads of idling restrictions 15 everywhere else in the State of California? 16 ACTING CHAIRPERSON RIORDAN: Okay. You can see 17 that there's the red light. And I need a conclusion of 18 a -- just one sentence please. 19 MR. MIERAS: I'll do this all in one sentence, 20 and I'll try to be brief. 21 You can sum up the enforcement deficiencies as 22 follows: The MOU is premised on program elements to be 23 defined at some future point; it lacks specific penalties 24 for individual program failures; it employs language so 25 vague and careless, you could drive a locomotive through PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 108 1 it; it provides wide-open penalty exemptions; and it 2 provides for delay and uncertainty in the imposition of 3 sanctions. 4 Thank you very much. 5 ACTING CHAIRPERSON RIORDAN: Thank you very much. 6 (Applause.) 7 EXECUTIVE OFFICER WITHERSPOON: Madam Chair? 8 ACTING CHAIRPERSON RIORDAN: Yes. 9 EXECUTIVE OFFICER WITHERSPOON: We have 10 stipulated to the South Coast District over and over and 11 over again that nothing in the MOU interferes with 12 existing enforcement authority of the air district with 13 respect to the issuance of NOVs, abatement orders, 14 penalties or anything of the kind. And they continue to 15 testify that it does. 16 Secondly, the agreement that Mr. Mieras went on 17 at great length about that is so vastly superior to our 18 own has lapsed. It does not exist as of today. And for 19 whatever reasons, when we set up to negotiate new 20 agreements with the railroads, they considered those same 21 terms off limits, and so we ended up with the terms that 22 we have. But that agreement is no longer in effect in the 23 South Coast District, and so it is not a fair point of 24 comparison to the current agreement. 25 ACTING CHAIRPERSON RIORDAN: Okay. Put that on PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 109 1 the record. 2 Would you please identify yourself and -- let me 3 just ask a quick question. Of those who are now 4 testifying on behalf of the South Coast -- and I'm 5 speaking here of staff -- how many more speakers do you 6 have? 7 MR. CLOUET: One more after myself. 8 ACTING CHAIRPERSON RIORDAN: Okay. Because at 9 some point in time I'm going to have to start to take 10 certain people who have planes to catch and things. So 11 let's go. 12 MR. CLOUET: Madam Chair, members, My name is Jim 13 Clouet. I'm with the South Coast Air Quality Management 14 District. I've been asked by the authors of four 15 letters -- four brief letters to read them into the 16 record. I will do so quickly. 17 First letter is from Assembly -- 18 ACTING CHAIRPERSON RIORDAN: Wait, wait, wait. 19 You don't have to do that. We will make that part of the 20 record. You can testify as to who wrote the letter. I'm 21 going to assume they were in opposition to the MOU. And 22 we'll make that part of the record. 23 MR. CLOUET: Okay. The first letter was written 24 by Assembly Member Joe Coto; 23rd District; Vice Chair, 25 Latino Legislative Caucus, in opposition. A second letter PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 110 1 was written by Majority Leader, Senator Gloria Romero, in 2 opposition. The fourth letter was written by Assembly 3 Member and Transportation Chair, Jenny Oropeza, in 4 opposition. And the final letter I have is written by Los 5 Angeles City Council Member and City Council President 6 Alex Padilla, in opposition. 7 Thank you. 8 ACTING CHAIRPERSON RIORDAN: Okay. Thank you. 9 UNIDENTIFIED SPEAKER: Madam Chair, with your 10 indulgence, our staff will wait till this evening and -- 11 ACTING CHAIRPERSON RIORDAN: No, that's okay. 12 Just whomever -- I just wanted to sort of make it clear 13 that I was going to move to those who had to get on the 14 planes. 15 MR. LIU: While waiting for the -- my name's 16 Chung Liu. I'm the Deputy Executive Officer for the South 17 Coast District, also Chief Scientist. I'm going to 18 present some technical information in terms of retrofit 19 technology for the locomotives. 20 I had made a recent visit to Europe to really -- 21 firsthand to look at technology. I want to emphasize the 22 bolded points. 23 I visited a company called Hoke Engineering. 24 They're leading -- doing the retrofit for locomotives. 25 They have units demonstrate up to 300 kilowatts. That's PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 111 1 the locomotive -- the largest we have in the United 2 States. So I really don't think the point's made saying 3 the small locomotive in use is valid. 4 Also this modular design. So we know they 5 competing different kind of size. So -- regenerating, so 6 it can clean itself. 7 --o0o-- 8 MR. LIU: Swiss Government already retrofit all 9 their heavy-duty locomotives at this juncture. 10 Next slide. 11 --o0o-- 12 MR. LIU: And Germans started to retrofit on 13 their line haul locomotive also. 14 Next slide. 15 --o0o-- 16 MR. LIU: Paris has installed this kind of 17 retrofit technology when trains are idling in the 18 stations. 19 Next slide. 20 --o0o-- 21 MR. LIU: I first -- I witnessed all the 22 conversion work in the Swiss rail yard. They intend to 23 retrofit all their locomotives. 24 --o0o-- 25 MR. LIU: European has a very similar PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 112 1 verification process as ARB's verification process. 2 Actually they're more stringent. 3 Next slide. 4 --o0o-- 5 MR. LIU: Surprisingly a lot of U.S. companies 6 has been certified to install -- they have technology to 7 install a locomotive in Europe. And they don't have here. 8 Next slide. 9 --o0o-- 10 MR. LIU: I just want to say that G.E. has 11 proposed proposal to ARB recently to really demonstrate 12 this technology on line haul locomotives. But one week 13 after your MOU announced they withdraw their proposals. 14 The South Coast went in say, "Why?" They say, "We need 15 more cost. We need more money." 16 We volunteered to make up the difference. They 17 still say, "We're not interested." The reason is because 18 the MOU is there, the railroad company doesn't even want 19 to try it now. 20 So I just want to show there's really a 21 significant gap between our understanding of the 22 technology and your staff and the real world present to 23 you. 24 Thank you. 25 ACTING CHAIRPERSON RIORDAN: Thank you, Chung. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 113 1 Appreciate it. And I appreciate the fact that you stayed 2 on time. 3 All right. And so that, if I might -- Mr. 4 Wallerstein, that concludes the staff of the South Coast 5 District? 6 DR. WALLERSTEIN: That's correct. I might speak 7 this evening if need be to respond. 8 ACTING CHAIRPERSON RIORDAN: Okay. Fine. 9 Then let me move to those people who are -- I'm 10 going to ask again if Mayor Pro Tem Westey is here. 11 BOARD MEMBER BERG: Madam Chair? 12 ACTING CHAIRPERSON RIORDAN: Yes. 13 BOARD MEMBER BERG: Can I just ask a question -- 14 ACTING CHAIRPERSON RIORDAN: Yes, absolutely. 15 BOARD MEMBER BERG: -- on getting the next 16 speaker? 17 Could staff comment to the last presentation and 18 specifically the G.E.? 19 ACTING CHAIRPERSON RIORDAN: Just before you do 20 that, let me ask Council Member Margaret Clark, Dave 21 Davies, Bob Lucas. And I think that would be all for the 22 moment. And then I'll go more into the list. 23 I'm sorry. I interrupted. Go back to response. 24 DEPUTY EXECUTIVE OFFICER SCHEIBLE: Okay. 25 Clearly progress is being made with developing particulate PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 114 1 filters for large engines. Europe is doing a lot of work. 2 They have a better funding structure for it. 3 We're optimistic that that technology will exist. 4 We supported it as part of the Tier 3 standard, as part of 5 a retrofit standard. It's a modification of the 6 locomotive engine. We can't require it. So we'd have to 7 negotiate it or pay for it or get a federal rule to 8 require it. 9 We know of no connection between a proposal for 10 state funding to do research and the MOU and why that 11 would discourage it. In fact, the MOU has spurred us to 12 talk with the railroads and have them out. And we were 13 thinking about going to Europe to see the progress there 14 also. 15 So we just don't see the connection that Mr. Liu 16 presented as a logical consequence of the MOU. 17 EXECUTIVE OFFICER WITHERSPOON: So whether 18 General Electric -- the ICAP funding is for companies that 19 are on the verge of commercialization and are trying to 20 get enough seed money to advance to a commercially viable 21 project. 22 What's going on right now at Southwest Research 23 Institute funded by BNSF and Union Pacific is the 24 evaluation of five different particle trap technologies 25 over different operating modes, for durability, NO2 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 115 1 formation, all other kinds of issues. Their engineering 2 problems about packaging as well. 3 The locomotives, while similar in horsepower in 4 Europe, some of them that were on that slide, don't carry 5 as much load as U.S. locomotives. They're not on transits 6 with three or four locomotives at a time. And so there is 7 more mass that needs to be dealt with in a U.S. size 8 locomotive. And so that's part of the technical 9 challenge. 10 But it's also a preemption challenge and a 11 funding challenge. I'm sure we could go faster with the 12 amount of money that the Swiss Government is devoting to 13 that effort. 14 ACTING CHAIRPERSON RIORDAN: If you'd give us 15 your name and the organization that you represent. 16 MS. CLARK: I'm Margaret Clark, Council Member in 17 Rosemead, representing Rosemead and the California 18 Contract Cities Association. 19 And we are very concerned about this issue, the 20 fact that close to 80 percent of the pollution is coming 21 from sources that are not under the control of the AQMD or 22 any other body actually. And because of the -- the 23 stationary sources are the ones that are under the control 24 of the AQMD. And we -- the regulations have to keep 25 getting more and more stringent on the small businesses, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 116 1 while you have this huge massive pollution coming from the 2 trains, planes, ships, cars and trucks. And this is very 3 disturbing for cities as we deal with these problems. 4 But one of the things that I want to mention 5 again -- and I wasn't going to mention it again. I did -- 6 I testify at the August hearing. But the more I hear 7 about this MOU, the more disturbed I'm becoming about the 8 ramifications to local government and to the air quality 9 itself. 10 And I would beg you not to make another -- and I 11 understand -- I'm not killing the messenger here. Most of 12 you were not on the Board when CARB endorsed the MTBE 13 additive to the gasoline to clean up the air, which 14 polluted the groundwater. But in that case, your Board 15 listened to the petroleum industry, who preferred MTBE 16 because it was cheaper, it was a byproduct of their 17 existing operations. And we've from the water 18 community -- another hat that I hold -- begged you not to 19 do that. 20 And I had an argument with the staff person from 21 the ARB. And I said, you know, "This is going to get into 22 the water because of the" -- I was on the committee called 23 the Leaky Underground Storage Tank Committee. And we 24 said, "This is going to get into the groundwater." And he 25 said, "Oh, no. We'll just double-line all the storage PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 117 1 tanks and shore up all the pipelines." And I said, "Even 2 if you could do that, what about an earthquake?" And they 3 found that the 3 percent of -- the 3 on the Richter scale, 4 that you and I don't feel, were rupturing those shorn-up 5 pipelines. And that was a multimillion dollar disaster. 6 Virtually all the water wells in Santa Monica were shut 7 down. 8 So I beg you not to make another environmental 9 disaster by not researching this and rejecting it. 10 Thank you very much. 11 ACTING CHAIRPERSON RIORDAN: Thank you very much. 12 Bob Lucas. 13 And then let me also ask Shaudi Falamaki to come 14 forward please, because I know you have to leave early. 15 I'm probably just not saying that name at all 16 correctly. But it's the Association of Port Authorities 17 for California. 18 Ah, there she is. 19 Mr. Lucas. 20 MR. LUCAS: Thank you. My name is Bob Lucas. 21 I'm representing the California Council for Environmental 22 and Economic Balance, or CCEEB. CCEEB is a nonpartisan, 23 nonprofit organization of business, labor and community 24 leaders that is dedicated to achieving the state's 25 environmental goals in a manner consistent with sound PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 118 1 economy. 2 We have historically supported voluntary 3 agreements to accelerate emission reductions that are 4 otherwise not achievable. We believe that the statewide 5 emission reductions from this agreement are significant. 6 In CCEEB's view these are emission reductions that would 7 not otherwise occur or would be significantly delayed 8 because of federal preemption issues. 9 We agree with your state -- with your staff that 10 a statewide strategy is essential and is beneficial to 11 everyone. As an example, the provisions that will result 12 in risk assessments being performed using a consistent 13 methodology at 17 rail yards across the State is very 14 important. These risk assessments will result in specific 15 risk reduction strategies to the benefit of those 16 communities that are currently impacted in those areas. 17 For these and other reasons that were stated in 18 the letter from CCEEB, we urge you to affirm the agreement 19 and not roll back these statewide reductions. 20 Thank you. 21 ACTING CHAIRPERSON RIORDAN: Thank you very much. 22 And we'll make the letter part of the record. Thank you. 23 I'm going to -- just for one second let me -- no, 24 stay right there. I just want to -- Manual Saucedo and 25 Susan Seamans, if you'd come forward, because I know you PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 119 1 need to leave. 2 Now, if we go back to Dave Davies. 3 Give us your name and who you represent please. 4 MR. DAVIES: Madam Chair, members of the Board, 5 my name is Dave Davies. I am a senior executive manager 6 for National Railway Equipment Company, the Pacific 7 Southwest Region. 8 NREC is headquartered in Mount Vernon, Illinois, 9 and provides products and services to the global rail 10 transportation industry. Two of the largest American 11 railroads, Union Pacific and the BNSF, are among that 12 global rail customer network. As a supplier to both 13 companies, NREC works closely with both railroads' 14 mechanical and engineering departments to develop new 15 products and technologies to improve overall performance 16 of the railroads' locomotive fleet. 17 Over many years NREC has worked closely with both 18 the UP and the BNSF, developing new components, including 19 idle limiting installations and, most recently, a new low 20 emission switching locomotive now under test on the UP 21 Railroad. 22 In fact, the technology currently on our 23 equipment, recently tested by EPA, has emission reductions 24 that are 70 percent below Tier 2 switching locomotive duty 25 cycle. In the 2007 to '10 timeframe, we are optimistic PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 120 1 that we can reduce emissions even more. This is a great 2 example of the railroads and the supply industry working 3 together to drive down the rail yard emissions. 4 On the MOU we'll also limit nonessential idling 5 on a Class 1 railroad locomotive, ensure that 99 percent 6 of all Class 1 locomotives operating in California pass 7 smoke inspections, and accelerate all smoking locomotive 8 repairs. 9 It will require 80 percent of fuel used by Class 10 1 railroad locomotives in California to burn low sulfur by 11 January 1, 2007. This is six years in advance of the 12 requirement by federal law. 13 It will conduct health risk assessments with 14 community involvement at 16 major rail yards throughout 15 California, similar to the successful program that CARB 16 conducted at UP's Roseville facility. 17 With this voluntary agreement worked out between 18 both Class 1 railroads and CARB, an estimated 20 percent 19 reduction in particulate matter emissions from rail yards 20 throughout the state will be met over the next three 21 years. 22 The reductions achieved through this cooperative 23 approach and voluntary agreement are larger and sooner 24 than could have been made by any state regulatory or 25 legislative body due to the delays that may occur over PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 121 1 establishing the state's legal authority. 2 With all due respect to other agencies, NREC 3 believes that a voluntary proactive approach, the MOU, 4 represents the best and most timely course to mitigate the 5 existing emissions from railroad locomotives and railroad 6 operations. 7 In closing, rail is the most environmentally 8 sound way to move goods, and it is vital to the State of 9 California and our nation. NREC supports CARB's efforts 10 to ensure the efficient and environmentally sound 11 transportation of these goods, while at the same time 12 maintaining the ongoing emission reductions that's set 13 forth in the MOU and beyond. 14 On behalf of NREC, we encourage the Board to 15 support staff's recommendations to continue implementing 16 the agreement at today's meeting. 17 Thank you very much. 18 ACTING CHAIRPERSON RIORDAN: Thank you, Mr. 19 Davies. 20 Thank you for staying within your time limit as 21 well. I appreciate that. 22 MS. FALAMAKI: Good afternoon. My name is Shaudi 23 Falamaki and I'm here on behalf of the California 24 Association of Port Authorities in support of the MOU 25 entered into by the Air Resources Board, UP and BNSF PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 122 1 Railway. 2 For those who are not familiar, CAPA is comprised 3 of the state's 11 publicly-owned commercial deep-water 4 ports. 5 Our members are committed to responsible growth 6 and mitigating environmental impacts. Having a mechanism 7 in which the ARB and other regulatory entities can enter 8 into voluntary agreements to mitigate the impact of 9 federal sources is essential in realizing that goal. 10 The goods movement industry, as you know, is one 11 of national and international scope, and therefore is 12 governed by federal, international and, to a lesser 13 extent, state jurisdictions. This reality amplifies the 14 importance of an MOU process. 15 We believe that ARB staff is studied and are 16 responsible representatives of the public, and that we've 17 been able to achieve real emissions reductions that may 18 have not otherwise been realized. Any effort to rescind 19 the MOU at hand today we fear brings the unfortunate 20 prospect of having a chilling effect on future emissions 21 reductions. 22 Before I end I'd also like to add that I'm here 23 on behalf of the California Trade Coalition, a group whose 24 membership includes the California Chamber of Commerce, 25 the California Manufacturers, Consumer Electronics PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 123 1 Association, grocers, retailers and many others also in 2 support. 3 We have submitted our letters, but I'd be happy 4 to leave extra copies. 5 ACTING CHAIRPERSON RIORDAN: Thank you very much. 6 MS. FALAMAKI: Thank you. 7 ACTING CHAIRPERSON RIORDAN: And we'll make those 8 part of the record. Thank you. 9 All right. Manual Saucedo and Susan Seamans. 10 MR. SAUCEDO: Good afternoon, Madam Chair, 11 members of the Board. My name is Manual Saucedo and I'm 12 with Senator Nell Soto. 13 I would like to thank you for putting on this 14 public meeting and acknowledging the importance of public 15 comment. 16 I will be blunt. Senator Soto was very 17 disappointed to learn of CARB crafting a memorandum of 18 understanding with the railroads before it had the benefit 19 of public discussion with local agencies and the affected 20 communities. This is not a small matter. 21 As adopted, the MOU effectively observes the 22 authority of various entities: The State Legislature, the 23 South Coast Air Quality Management District, CARB itself, 24 and the Port of Los Angeles No-Net Task Force. And could 25 hamper their ability to reduce toxic emissions from PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 124 1 railroad operations. This preemption is unnecessary to 2 complete the public health goals of the MOU. 3 We feel strongly that our use of an extra legal 4 process that was exclusive of public comment and health 5 experts puts the health and safety of Californians at 6 risk. In light of this, we feel that the Legislature must 7 be ready to use all the tools at its disposal to ensure 8 the safety and well being of all Californians. 9 This preemption is so extraordinary that the 10 Legislature should consider legislation to forbid CARB 11 from entering into MOUs. One tool the Legislature has is 12 to reject appointees. 13 It's bad enough that regional agencies are faced 14 with federal preemption on various issues. To create a 15 strong preemption by fire shows the ARB's intent to 16 suppress other agencies. 17 Senator Soto urges the Air Resources Board to 18 rescind the MOU or to renegotiate the MOU with the 19 railroad companies without the preemption clause. If the 20 preemption clause is the railroads' line in the sand, then 21 the ARB should pursue the pollution reduction benefits 22 through regulation or legislation. 23 Much has changed since the last MOU in the 1990s. 24 Shipping of goods through the ports of L.A. and Long Beach 25 has increased at precedent rates. The volume means that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 125 1 trains have bigger impacts in our communities. We in the 2 South Coast Air Basin need to take serious steps to 3 improve air quality. The railroads are a significant 4 source of pollution. 5 In conclusion, I urge you to rescind or to 6 renegotiate the MOU and achieve the type of consensus we 7 would expect from ARB, a board that has done so much to 8 advance the public process of air quality. 9 Thank you. 10 ACTING CHAIRPERSON RIORDAN: Thank you very much. 11 And thank you for staying within your time limit. 12 Susan Seamans. 13 MS. SEAMANS: Madam Chair and members of the 14 Board. I am Susan Seamans, council member for the City of 15 Rolling Hills Estates. And I'm the current President of 16 the L.A. County Division of the League of California 17 Cities and the immediate past Chair of the South Bay 18 Cities Council of Governments. 19 I appear today on behalf of the South Bay Cities 20 COG, which includes 16 cities located between the Los 21 Angeles International Airport and the Port of L.A. 22 We appreciate your well-intentioned efforts to 23 improve air quality around the railroad facilities. But 24 the MOU and the process falls short. We ask you to 25 rescind this MOU. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 126 1 Our Council of Governments is here to protest the 2 lack of public participation or involvement leading to 3 this MOU and the very lax provisions are contained in the 4 MOU. The COG has made understanding the growth of goods 5 movement in our region a priority focus of our work 6 program. Communities close to the port are heavily 7 impacted with mobile sources of truck and train movements. 8 Because of the strong public interests in the effect on 9 public health, this is not an issue that belongs in the 10 proverbial smoke-filled room. It demands a public hearing 11 and understanding. 12 The MOU has many deficiencies and is in truth 13 probably worse than no MOU at all. It lacks legal teeth, 14 and the emissions reductions it includes are far from 15 reaching the extent needed for our four-county region, 16 which is still breathing the nation's worst air in 17 handling over 40 percent of the state's rail traffic. 18 One of most significant issues to us is the 19 provision that says that local entities cannot take 20 separate action to enhance air quality measures without 21 nullifying this agreement. This one provision erodes the 22 ability of local governments and agencies from attempting 23 to adopt or enforce any air quality requirements 24 pertaining to the MOU. 25 Another source of our concern is that the accord PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 127 1 allows railroads to buy their way out of cleanup by paying 2 penalties which are very small and do not represent any 3 deterrent for the railroads. Size of penalties for 4 violations must at least be commensurate with the levels 5 currently prescribed under law. 6 Our COG has supported AB 888 and SB 459. They 7 are coming back, and we hope that the CARB will withdraw 8 its opposition and join shoulder to shoulder with all of 9 us in trying to enact these effective provisions. 10 Additionally, the CARB should support expanding 11 the provisions of these bills to apply statewide. 12 I have read your staff's report. As I see it, 13 there are two real problems in this. Number 1, the MOU is 14 negotiated behind closed doors by your staff, not by you 15 elected officials. Considering an issue this important, 16 for the health of all Californians, I don't understand and 17 the public does not understand how the ARB allowed this 18 process to go forward. 19 Number 2, the MOU's requirements are less 20 stringent than the current AQMD regs. Why is southern 21 California so concerned? We are breathing the worst air 22 in the state, as I said, and probably the nation. 23 Communities in the South Bay/Long Beach Harbor area to the 24 gateway COG areas to San Gabriel and on into Inland 25 Empire. No wonder the AQMD is urging you to rescind this PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 128 1 MOU. Standards urged by the AQMD should be the standard 2 not only for southern California but the norm for all of 3 California. No patchwork approach is -- I'm not 4 suggesting a patchwork approach. I'm saying what's good 5 the "us" is good for all of California and for all of our 6 country. 7 Thank you. 8 ACTING CHAIRPERSON RIORDAN: Thank you very much. 9 (Applause.) 10 BOARD MEMBER GONG: May I ask a question? 11 ACTING CHAIRPERSON RIORDAN: Yes, you can. 12 Excuse me. There's a question. 13 Dr. Gong. 14 BOARD MEMBER GONG: That was a forceful 15 presentation and I appreciate it. 16 Friday morning -- tomorrow morning when the sun 17 comes up, if the MOU still is in existence, are you saying 18 to us that because the MOU is there that it will inhibit 19 or restrict your local and regional desires to do certain 20 regulations or rule making, so to speak? Is it that big 21 of a gorilla? 22 MS. SEAMANS: I think we believe that that is the 23 case and that we would be better off without this MOU. 24 What we prefer is rules and regulations. And you have -- 25 we have talked -- we have heard about the opinions -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 129 1 legal opinions. You know, it's only your staff that says 2 that the legalities are such that we will be worse off. I 3 don't really belief that. But I think that we've been 4 doing pretty good work up till now and we need to be able 5 to continue to go forward. 6 BOARD MEMBER GONG: Could the local -- again, I'm 7 not a lawyer. But couldn't you go ahead and do certain 8 things and see what the railroads do and basically call 9 their bluff? 10 MS. SEAMANS: I mean I believe that's what you 11 should do. 12 BOARD MEMBER GONG: No. I mean I'm talking 13 about -- 14 MS. SEAMANS: Me? 15 BOARD MEMBER GONG: I'm talking about the 16 subdivisions here. 17 MS. SEAMANS: I think that, you know, with -- we 18 heard testimony before that cities like Roseville -- or 19 Auburn, it was, lost. You know, when you talk about 20 individual cities, that's a different issue when you go -- 21 when you're talking about issues with the federal 22 government. 23 Then with the AQMD. I think that we need to 24 empower this AQMD the best way that we possibly can. This 25 is probably the biggest air quality management district in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 130 1 the country, certainly in California. And these people 2 are the ones -- the experts and the ones that should be 3 making the guidelines and rules, I believe, that should 4 start here, as we often do in California, and let it go to 5 the rest of California and then out to the rest of the 6 country. I think we need -- like Al Lowenthal said, we 7 need to be on board here and be making our voices heard. 8 Things are different now with air pollution than it was 9 five years ago. And I think that it's your responsibility 10 as the ARB -- and I certainly respect you all. But I 11 think that you as elected officials really need to flex 12 your muscles. 13 ACTING CHAIRPERSON RIORDAN: Okay. Thank you 14 very much. 15 All right. 16 (Applause.) 17 BOARD MEMBER GONG: I have a question for staff. 18 ACTING CHAIRPERSON RIORDAN: May I -- just before 19 you do that, let me -- I'm looking at people who may have 20 had a distance to travel. Marlene Carney, Aeron Genet and 21 Jean Roggenkamp. 22 And then there are two people that have indicated 23 a need to -- I'm trying to do this before we take our 24 break. Tina Baca Del Rio and Nancy Ramos. 25 Now, ask your question. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 131 1 BOARD MEMBER GONG: Just real quick. I'd like to 2 ask staff about -- this question about the 20 percent 3 reduction in PM exhaust -- PM diesel exhaust. 4 Does that apply -- that applies to the whole 5 state, not just for South Coast Air Quality Management 6 District? 7 EXECUTIVE OFFICER WITHERSPOON: That's correct. 8 DEPUTY EXECUTIVE OFFICER SCHEIBLE: It applies in 9 the vicinity of the rail yards. It won't be 20 percent 10 along a main line. But where you're in a rail yard we 11 estimate a 20 percent reduction in PM. 12 BOARD MEMBER GONG: Will it be less in the South 13 Coast? 14 DEPUTY EXECUTIVE OFFICER SCHEIBLE: No, it should 15 be about the same. 16 BOARD MEMBER GONG: About the same. So it's 20 17 percent. Okay. 18 ACTING CHAIRPERSON RIORDAN: Marlene Carney. 19 MS. CARNEY: Thank you. 20 Madam Chair and members of the Board. I'm 21 Marlene Carney. I'm Director of External Affairs with the 22 California Chamber of Commerce. We are the largest 23 broad-based business association in California. Our 24 membership represents all sectors of the business 25 community and represents 25 percent of California's PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 132 1 private sector work force. 2 The California Chamber supports the staff 3 recommendations to continue implementing the agreement, to 4 clarify terms in the agreement, and report back to the 5 Board on progress, implementing the agreement within six 6 months. 7 Our support is based on the following: This is a 8 voluntary agreement between the parties that brings about 9 a 20 percent reduction in particulate emissions from rail 10 yards throughout California over the next three years; and 11 for the first time invites all stakeholders to the table 12 to discuss longer term emissions reductions technologies. 13 The MOU addressed federally preempted sources. 14 The only way the state could address preempted subjects 15 was through a voluntary agreement arrived at by 16 CARB/railroad negotiations. You cannot negotiate 17 voluntary agreements through a rule-making type process. 18 The reductions achieved by the agreement are 19 larger and sooner than could have been required by any 20 California regulatory or legislative body. By using a 21 cooperative approach California has also avoided 22 implementation delays due to disagreements over the 23 state's legal authority. 24 The termination clause is essential to ensure 25 consistent statewide regulation and to avoid a patchwork PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 133 1 of regulations. 2 From an environmental and energy efficiency 3 perspective, rail is the landside provider of choice for 4 goods movement. Rail has consistently been proven to have 5 lower emissions of NOx and PM per ton of freight moved 6 than the other alternatives. This efficiency is important 7 to California goods movement system. 8 This MOU will further improve rail's 9 environmental benefits and improve the quality of life of 10 people living near rail yards. 11 Thank you for your consideration. 12 ACTING CHAIRPERSON RIORDAN: Thank you very much. 13 And thank you for staying within the time limit. 14 Next we have Aeron Genet. 15 MS. GENET: Good evening, Madam Chair and members 16 of the Board. My name is Aeron Arlin Genet. I'm Planning 17 Manager for the San Luis Obispo County Air Pollution 18 Control District. And I want to thank you for the 19 opportunity to talk to you today about the MOU between ARB 20 and the railroads. 21 The district strongly supports efforts to reduce 22 particulate emissions from diesel from rail operations 23 throughout the state and especially in our region. We 24 have worked hard over the past two decades to reduce air 25 quality impacts to neighborhoods surrounding train PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 134 1 stations and other areas where locomotive idling occurs. 2 Significant nuisance and public health complaints 3 from this practice has resulted in the district's issuing 4 notices of violation to the rail yard. 5 Through mutual settlement agreements the district 6 and the railroads eventually entered into an MOU in 1995 7 to establish no idling zones, to limit idling times to 30 8 minutes, and to implement other operation strategies to 9 improve air quality. These actions have reduced both the 10 nuisance and the public health risk from railroad 11 operations in our county. 12 We are concerned that the state MOU may 13 jeopardize our ability to effectively implement our local 14 program in the future. 15 Specifically we have significant concerns with 16 the release of the obligation -- or obligation clause that 17 substantially hinders local authority in addressing local 18 impacts, the lack of stringency and enforceability in 19 specific components of the MOU, and the complete absence 20 of public process by ARB in adopting this agreement. 21 The district believes substantial changes to the 22 MOU are needed to ensure that the potential emission 23 reductions anticipated through this agreement are 24 realized. 25 We have submitted written comments, and I'm PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 135 1 assuming you all have that before you. So I won't go 2 through all of the specific details. But -- well, you've 3 a lot on the release of obligation clause, and our 4 concerns are no different, especially since we already 5 have the existing 30 minute limitation on idling. That is 6 more stringent than what's included in the state MOU. And 7 that is at jeopardy with this MOU. 8 Under stringency and enforceability, vagueness 9 and the difficulty to enforce. That when the rubber hits 10 the road and we're out there as agents of ARB enforcing, 11 we're going to be challenged. And that's something 12 that -- enforcement is key to any air quality regulatory 13 program. 14 The penalty structure is also less than what is 15 currently in place throughout the state and what is 16 imposed by other air districts. 17 And also the risk assessment and mitigation 18 measures. You've identified specific rail yards where 19 those apply. We believe that it needs to include all rail 20 operations throughout the state through a priority system, 21 so our communities are also considered during this. 22 So to summarize, we urge ARB to make changes to 23 the MOU, to: 1) eliminate the release of obligation 24 clause, 2) increase the maximum penalties to be consistent 25 with existing state law, 3) establish clear requirements PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 136 1 that can be enforced, and 4) to delineate that the health 2 risk assessment's to be required statewide. 3 Thank you for the opportunity to comment. 4 ACTING CHAIRPERSON RIORDAN: Thank you. And we 5 appreciate your being here. And I'm going to ask staff to 6 be sure to be in touch with you and to work very closely 7 with you, because I know your county is one that's very 8 interested in air quality. And you have a more rural 9 organization there to deal with. So we'll be working 10 closely with you. 11 Thank you. 12 MS. GENET: Thank you. 13 ACTING CHAIRPERSON RIORDAN: Jean Roggenkamp. 14 And then I need to -- quickly, Eddie Washington, if you 15 would come forward and be ready to go after the two 16 council members from Commerce. And then I think I'm going 17 to be about right for a break. 18 MS. ROGGENKAMP: Good afternoon, Madam Chair and 19 members of the ARB Board. My name is Jean Roggenkamp, 20 Deputy Air Pollution Control Officer for the Bay Area Air 21 Quality Management District. Thank you for the 22 opportunity to testify this afternoon. 23 Public exposure to diesel particulate matter and 24 other pollutants from rail facilities is a serious concern 25 in the San Francisco Bay Area. We have dense residential PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 137 1 populations living very near rail yards and rail tracks. 2 ARB data indicate that health risk due to public 3 exposure to toxic air contaminants in the San Francisco 4 Bay Area is the second highest in the state. Clearly, any 5 statewide efforts to reduce health risks, including 6 efforts to reduce toxic emissions from rail facilities, 7 must address impacts in the Bay Area. 8 With others, the Bay Area Air District is very 9 concerned about the process used to develop the railroad 10 MOU that's before you today. We expect significant 11 improvement, upfront process in the future. 12 The Bay Area Air District and the communities 13 near rail facilities in the Bay Area have important input 14 to offer. We testified at the ARB workshop in Sacramento 15 in August. And we sent a letter to ARB staff detailing 16 areas where we believe that the MOU needs to be 17 strengthened or clarified. 18 And we are ready and willing to work with ARB, 19 the railroads, and the affected communities in the Bay 20 Area to resolve issues raised about the substance of the 21 railroad MOU. 22 Some of the key issues raised in our letter 23 include the following points: 24 There are several rail yards in the Bay Area that 25 are included in the MOU. Several are not, and they should PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 138 1 be. 2 Ensure that the health risk assessments are 3 completed in a timely fashion and that there's criteria 4 for moving the covered yards in the MOU to be designated 5 yards and therefore within the full context of the MOU. 6 Include a requirement for the railroads to 7 respond to reasonable data requests quickly, perhaps 8 within 45 days, to make sure that they do not stall the 9 process. 10 And then there's the question of what to do about 11 the release clause that's so problematic. Our letter put 12 forward one option, which was to limit the release to only 13 that area of the state that imposed different 14 requirements. I think the Bay Area would be happy with 15 other kinds of options that do not get rid of the 16 statewide benefits. 17 And, lastly -- the last point I want to point out 18 is set penalties at the maximum allowed under the state. 19 We are ready to help implement this MOU if the Board keeps 20 it in place. We'd like to help with the community 21 outreach, the handling of complaints, implementing the 22 health risk assessments and conducting technology 23 feasibility studies. 24 Thank you. 25 ACTING CHAIRPERSON RIORDAN: Thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 139 1 And thank you for your testimony. 2 I think there is a question. 3 Mayor Loveridge. 4 BOARD MEMBER LOVERIDGE: You comment on exempting 5 particular districts. Could you maybe -- you mentioned 6 something about -- 7 MS. ROGGENKAMP: In terms of what we would be 8 willing to help with or about the release clause? 9 BOARD MEMBER LOVERIDGE: About the release 10 clause. 11 MS. ROGGENKAMP: Okay. Clearly the release 12 clause is problematic for many parties. And we had 13 suggested in one option, which was to limit the release 14 of -- the option for the release on the part of the 15 railroads to those areas of the state that implement 16 different requirements. And so that the MOU, if it's 17 enacted, would continue in other parts of the state. 18 BOARD MEMBER LOVERIDGE: Okay. 19 ACTING CHAIRPERSON RIORDAN: Thank you. 20 BOARD MEMBER DeSAULNIER: Madam Chair? 21 ACTING CHAIRPERSON RIORDAN: Yes, Supervisor 22 DeSaulnier. 23 BOARD MEMBER DeSAULNIER: Just to note that our 24 board didn't actually go up and take a position on this. 25 This is a reflection of the opinion of the staff. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 140 1 MS. ROGGENKAMP: Yes, that's correct. 2 ACTING CHAIRPERSON RIORDAN: The next speaker. 3 Identify yourself, because I quickly called -- I 4 don't know if you're Tina or Nancy. And I apologize. 5 MS. RAMOS: Nancy. 6 Nancy Ramos, Council Member for the City of 7 Commerce. 8 Madam Chair and Board. Thank you so much for 9 this opportunity to address you on this important -- so 10 important issue, critical issue to the City of Commerce, 11 in particular, and to all those colleagues that are here 12 today. 13 This MOU attacks all current concerted efforts to 14 address railroad emissions, including legislation proposed 15 by the South Coast Air Quality Management District. 16 Lower emissions engines for consumers in the 17 private sector will eventually become the standard. But 18 not if we continue to use pseudo-legislation to fix the 19 problem. And that's what this MOU is. 20 It was raised earlier the issue of: Would it 21 hinder local governments? I believe that it would deter 22 us, because in the event that we should try to take some 23 action, we really don't know what the impacts would be to 24 the rest of the state. 25 The MOU's language contradicts the Air Resources PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 141 1 Board's stated major goals, to protect the public from 2 exposure to toxic air contaminants and provide leadership 3 in implementing and enforcing air pollution control rules 4 and regulations. 5 MOU language provides the loopholes that 6 environmental groups have referred to as a poison pill. 7 We in the City of Commerce have been swallowing a poison 8 pill for years, and we just can't swallow anymore. We 9 literally are choking to death. 10 The MOU impairs the abilities of cities and other 11 government agencies to address these problems. We urge 12 the Air Resources Board, Burlington Northern, and Union 13 Pacific to rescind the MOU. 14 We'd like to see an agreement that shows 15 sincerity and real concern for the health of the people 16 that the railroad operations affect such as those in the 17 City of Commerce that live along the rail yards. 18 This process should be guided by environmental 19 law so the public can understand the true impacts and how 20 they will be enforced. 21 I'd like to share that, it seems -- I hear so 22 much about goods movement. And we've been involved in the 23 process from the very beginning. And earlier we heard 24 about Long Beach from Honorable Senator Lowenthal. We in 25 the City of Commerce, we were making a statement when he PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 142 1 was talking about that Long Beach is the end. And we in 2 the City of Commerce saying we're the end. And so we've 3 come up now with the saying that we are the beginning of 4 the end. 5 (Laughter.) 6 MS. RAMOS: Because we have the two intermodal 7 facilities. We have both railroads in our city and we are 8 nestled between the I-710 and the I-5. We've been very, 9 very involved in the goods movement process. I recently 10 returned from Washington DC, and can tell that they're 11 amazed, as many of you know, the problems that were 12 surrounding the controversy between the 710 project. Now 13 we have 27 cities that have come to agreement, which is 14 almost unheard of. But between the gateway cities and the 15 710 and the I-5 cities we've come to consensus on the fact 16 that we understand that goods have to be moved. But at 17 what expense? And all we're asking you to do is please 18 clean up the air first before you do these other things. 19 Rescind this MOU. Give us an opportunity. 20 Thank you. 21 ACTING CHAIRPERSON RIORDAN: Thank you very much. 22 Appreciate it. 23 (Applause.) 24 ACTING CHAIRPERSON RIORDAN: And Tina. 25 MS. DEL RIO: Good afternoon. And thank you so PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 143 1 much for the opportunity to be able to address you with 2 the issues that we're dealing with in the City of 3 Commerce. 4 My name is Tina Del Rio and I am a council member 5 of the City of Commerce, recently elected, seven months. 6 But, more importantly, I am a resident -- a lifetime 7 resident of the City of Commerce and I live directly 8 adjacent to the Union Pacific Railroad. There's a wall 9 that separates my home, that I've lived all of my life in, 10 maybe ten feet away from the railroad. And we've had 11 these issues all of my life. 12 It was, let's see, New Years Eve, 1995, that we 13 received a phone call from a doctor stating that indeed 14 the cancer tumor that was removed from my father's neck 15 was malignant. And so we did everything that we had to 16 do. Went through all the motions. Went to the doctors, 17 you know, "What treatment will we have to do?" 18 Well, there was a radical surgery that had to be 19 done. Of course all lymph nodes had to be taken away 20 during that surgery. The swallowing process of my father 21 was limited, so he had a choking issue that he had to deal 22 with. 23 But while we were there going through all this 24 the question was asked through Loma Linda University, 25 "What, were you a drinker or a smoker? Because this type PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 144 1 of cancer that you have, this one cell on the base of your 2 tongue, is prevalent of those that smoke and drink." 3 Well, my father was neither. So they asked, "Well, 4 exactly where do you live? Could it possibly be an issue 5 of your environment?" And when we told them where we 6 lived, they threw their hands up. They said, "Well, you 7 know, you live in one of the most toxic communities in 8 California." 9 And living right next to a railroad, there's new 10 information coming out now at that time that there are 11 true issues there living next to railroads, that there are 12 cancer issues. And we knew at that time that there were 13 cancer clusters that were taking place in our community. 14 A council member had died of cancer. Our neighbors -- 15 two -- both husband and wife died of cancer. The couple 16 across the street had the same exact cancers -- which they 17 are still alive at this point, but they have the same 18 exact cancers that the neighbors had died from. 19 And so as we went through from 1995 and dad could 20 no longer eat -- swallow anymore, and eventually it moved 21 to a lung and part of his lung had to be removed. And 22 then we eventually went to the City of Hope, because we 23 all know when you've done everything else, the City of 24 Hope is kind of your last resort, and that's where we were 25 at. And again the doctors there asked, you know, "Where PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 145 1 do you come from? What's your environment?" They throw 2 up their hands. "Are you aware of your environment that 3 you're living in and the issues that are there?" 4 Well, at that point there was nothing we could do 5 and there was nothing they could do for him. He ended up 6 in the hospital. 7 Seven years later, we end up on -- well, he ended 8 up on a respirator, a ventilator where we had to actually 9 keep him from choking to death. The machine, my mother 10 and I both had to learn how to run, because we brought him 11 home. It wasn't fair. He was a wonderful man. And we 12 weren't going to let him go into a convalescent home and 13 die there. We brought him home so he could be 14 comfortable, as comfortable as he could possibly be. 15 And it was 24/7 around the clock mom and I had to 16 sit there. And when he would be choking, you had to make 17 sure that that tubing went down and an airway was 18 suctioned clean so that he could possibly breathe again. 19 And that went on for two months. And on December 20 23rd, just before Christmas, he died of cancer. And, you 21 know -- and that day we had to call at that time a local 22 council member to ask if they could please contact the 23 Union Pacific to get them to remove the train, because the 24 window was open, the family members were in the room with 25 him. And we could not stand being in the room because of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 146 1 all the emissions that were coming into the room. It was 2 horrible. And his last breath was taken with diesel 3 emissions there. 4 So, you know, this is a -- this is a reality of 5 those of us who live next to the railroad. 6 And I also have become -- 7 ACTING CHAIRPERSON RIORDAN: Tina. 8 MS. DEL RIO: Okay. I've also become their 9 policing agency now. When they suggest to call as soon as 10 there's an issue with idling taking place, which is 3, 9, 11 12 hours at a time, "Call us and let us know and we'll 12 move the trains." It doesn't happen. You need to know 13 that this does not take place. They do not follow up on 14 what they're saying. 15 So just real quick in closing -- 16 ACTING CHAIRPERSON RIORDAN: No, close. You need 17 to close. 18 MS. DEL RIO: Yes. 19 We'd like to see the agreement to show sincerity 20 and real concern for the health of the people that live 21 next to the railroads and that it truly does affect. And 22 we urge the Air Resources Board, Burlington Northern and 23 Union Pacific to rescind this MOU because we are truly 24 affected. We're dying. 25 ACTING CHAIRPERSON RIORDAN: Thank you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 147 1 Appreciate your testimony. 2 (Applause.) 3 ACTING CHAIRPERSON RIORDAN: Mr. Washington. 4 Mr. Washington, and then our last speaker -- and 5 I'm going to apologize because we are going to need to 6 take a break, because we obviously have advertised that we 7 will be back in section at 6 p.m. So I know that Mayor 8 Villaraigosa's representative is here. But he's nice 9 enough to say to me that if he is not being heard earlier, 10 that we will make any document that he has part of the 11 record. And we have noted that he is here. 12 So, Mr. Washington, if you'd like to begin 13 please, by your name and who you represent. 14 MR. WASHINGTON: Yes. Good afternoon, Madam 15 Chair and members of the Board. My name is Eddie 16 Washington, representing Los Angeles County. And I want 17 to thank you for this opportunity to speak on this 18 important issue. 19 On September the 13th, 2005, a recommendation of 20 Supervisors Michael D. Antonovich and Gloria Molina, Los 21 Angeles County Board of Supervisors, took action to urge 22 the California Air Resources Board to rescind the MOU 23 entered into with the Burlington Northern and Santa Fe 24 Railway Company and the Union Pacific Railroad Company 25 without any public comment or consideration. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 148 1 This action taken by the Air Resources Board 2 undercuts the current visible emissions enforcement 3 actions railroad companies must adhere to and allows the 4 railroads to back out of their obligations. 5 An MOU is not the preferred instrument to achieve 6 emission reductions. Instead, a transparent public 7 process must be implemented where stakeholders and both 8 state and local regulatory agencies can provide input 9 instead of a two-party MOU. Therefore the county urges 10 your Board to rescind the MOU and to support local and 11 regional efforts to reduce locomotive and rail yard 12 emissions through proposed legislation and proposed rule 13 development and to include stakeholder and public 14 participation in its rule and program development process. 15 If rescinding the MOU is not feasible, the county 16 urges your Board to strengthen MOU by removing the 17 termination clause. 18 Thank you. 19 ACTING CHAIRPERSON RIORDAN: And I thank you, Mr. 20 Washington. 21 There is one person who may still be in the room 22 but had indicated a need to leave earlier. 23 Is Melissa Birch here? 24 She just left. I'm sorry. 25 Okay. I apologize for that. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 149 1 Let me indicate to the audience that we will come 2 back into session promptly at 6 p.m. And we'll look 3 forward to seeing you then. And I will probably begin -- 4 there are a few other elected people, and I'd like to get 5 those completed. And then we'll go to the testimony of 6 the railroads. 7 (Thereupon a dinner recess was taken.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 150 1 EVENING SESSION 2 ACTING CHAIRPERSON RIORDAN: Ladies and 3 gentlemen, if you could find your seats. And I'll look to 4 see if I have a quorum, almost. 5 Just before we begin, so that people will have a 6 sense of who's up first in terms of speaking order, I want 7 to go back. 8 Larry Robinson, are you still here? 9 Larry, please come forward. You're going to be 10 number one. You can be at the podium, Larry. 11 And Erick Martinez, are you here? 12 On his way. 13 Okay. And then I want to go -- the gentleman 14 from Mayor Villaraigosa office, you're going to be number 15 two. 16 Thank you for staying. That's really nice of 17 you. If I ever meet your mayor, I will put in a good word 18 for you. 19 I'm just waiting for this quorum. So let's see 20 here. 21 Erick Martinez, are you here? 22 Erick? 23 I don't see Erick. 24 Mayor Lawrence Dale, are you here? 25 Yes, if you would move up. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 151 1 Larry -- 2 MR. ROBINSON: That wasn't me. 3 ACTING CHAIRPERSON RIORDAN: I know that wasn't 4 you. 5 (Laughter.) 6 ACTING CHAIRPERSON RIORDAN: Okay. If it happens 7 again, it won't count against your time. Just know we 8 obviously have some sort of disruption. 9 So if you would begin and give us your name and 10 who you represent. 11 MR. ROBINSON: Thank you. 12 I'm Larry Robinson representing the Sacramento 13 Air District. I'm here on behalf of Larry Greene, who's 14 the Control Officer, who could not be here tonight because 15 he's in Monterey at the CAPCOA board meeting. 16 I feel somewhat guilty of actually speaking 17 before the Mayor's staff, but I will anyway. 18 We appreciate the opportunity to actually be here 19 and present our letter on the railroad MOU. Sacramento's 20 major concern with the MOU are process related. We feel 21 the MOU process used and the inability of that process to 22 actually access key stakeholders detracts from the overall 23 effectiveness of the document. 24 Now, while the MOU does have some benefits for us 25 in northern California, the process in our mind negates PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 152 1 its effectiveness and ultimately means we do not support 2 the document as written. 3 That's the limit of my testimony tonight. If I 4 can answer any questions, I'd be happy to do so. 5 ACTING CHAIRPERSON RIORDAN: Mr. Robinson, You 6 get an A. 7 (Laughter.) 8 MR. ROBINSON: Others have said it so much more 9 eloquently than I, I just thought I'd keep it at that. 10 ACTING CHAIRPERSON RIORDAN: Let me ask if there 11 are any questions for the speaker. 12 Seeing none, we thank you. 13 MR. ROBINSON: Thank you. 14 MR. PASCUAL: Good evening. I'm not quite sure I 15 can be that brief. 16 Good evening, Madam Chair and members of the 17 Board. My name is Romel Pascual and I'm the Associate 18 Director for the Environment for Los Angeles City Mayor 19 Antonio Villaraigosa. I'm here on behalf of the Mayor to 20 express his strong -- or express strong concerns regarding 21 the railroad MOU. The Mayor submitted a letter to the 22 Board which outlines his comments. 23 Nowhere in California is air pollution a more 24 critical public health issue than in the City of Los 25 Angeles. While the MOU appears to be well intentioned, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 153 1 we're deeply concerned about the lack of public 2 participation during the negotiation of the MOU. 3 An open process is essential to develop effective 4 public policies that meet the realities of the communities 5 affected by air pollution from railroad operations. 6 Railroad operations represent a significant 7 source of air pollution at both the local and regional 8 levels. Locomotives operating in the City of Los Angeles 9 and throughout the South Coast Air Basin emit substantial 10 amounts of smog-forming compounds in diesel particulate 11 matter, a toxic air contaminant that results in known 12 adverse health effects on local communities. 13 Those communities and residents must have the 14 opportunity to provide input into the development of an 15 MOU that directly affects the environment and public 16 health. 17 Thank you for considering these comments. 18 ACTING CHAIRPERSON RIORDAN: Thank you very much. 19 We appreciate that, and we'll make that part of the record 20 for you. 21 MR. PASCUAL: Thank you. 22 ACTING CHAIRPERSON RIORDAN: Let me -- Mayor 23 Lawrence Dale, I know you're there. And let me just ask 24 if Sheri Repp, if you are here, if you would come forward 25 please and be in the line to speak. And Henry Lo. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 154 1 And, Mayor. 2 MAYOR DALE: Madam Chair, members of the Board. 3 My name is Lawrence Dale. I'm Mayor of the City of 4 Barstow, California. 5 I'm here today to support the MOU and the staff's 6 recommendations: 7 1) To continue implementation agreement; 8 2) Clarify the terms of the agreement; and 9 3) Report back to the Board upon progress of the 10 implementing agreement within six months. 11 As Mayor of the City of Barstow I have worked 12 with BNSF railroad over the past five years on a variety 13 of projects. I have found them to be good corporate 14 citizens, as well as cooperative and trustworthy partners. 15 The ARB/railroad statewide agreement particulate 16 emission reduction program in California railroaders is a 17 voluntarily program between the parties that brings about 18 20 percent reduction in particulate emissions for rail 19 yards throughout California over the next three years; and 20 for the first time invites all stakeholders to the table 21 to discuss long-term emission reduction technologies. 22 Specifically 500 to 600 captive intrastate locomotives 23 will be fit with automatic shutdown devices. This is in 24 addition to the 2700 intrastate units already equipped 25 with these devices. All new locomotives are equipped with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 155 1 the devices. At least 80 percent of all fuel placed in 2 units in California will be low sulfur six years before 3 the requirement of federal regulations. 4 At least 99 percent of all units will comply with 5 the stringent smoke regulations, a much higher compliance 6 rate than any other mobile source. 7 Health risk assessment with community 8 participation will be carried out at 16 major rail yards 9 throughout California, based on the successful program 10 that CARB conducted at UP's Roseville facility. 11 The agreement achieves real reductions. These 12 reductions are larger and achieved faster than any other 13 means could have been required by a California regulatory 14 or legislative body. 15 By using a corporate approach, California has 16 also avoided implementation delays due to litigation and a 17 disagreement over the state's legal authority. 18 Some air districts such as South Coast would 19 develop regulations on the smallest emission source first. 20 This does not make sense. Rail makes up only 2 percent of 21 the NOx emissions in the South Coast Air Quality Basin, 22 along with 7/10 of a percent of particulate matter 23 emission; while trucks make up 21 percent and 2.4 percent; 24 other off-road equipment, 17 and 7.9 of the NOx and PM 25 emissions respectively. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 156 1 The termination clause is essential to ensure 2 consistent statewide regulations and to avoid patchwork 3 regulations. 4 I want to thank you for your time. And I would 5 urge you to support staff's recommendation again to 6 continue implementation agreement, to clarify the terms of 7 the agreement, and report back to the Board on progressive 8 implementation of the agreement within six months. 9 I feel that the agreement is good for our city 10 and will be an asset to us. 11 Thank you for your time, and I appreciate it. 12 ACTING CHAIRPERSON RIORDAN: And, Mayor, I note 13 that one of those railroad yards that would be on the list 14 of risk assessments is certainly in Barstow. So we look 15 forward if this moves forward to working with you there 16 and getting your input and the citizens that you 17 represent. 18 MAYOR DALE: We're willing to do that. Thank 19 you. 20 ACTING CHAIRPERSON RIORDAN: Thank you very much. 21 All right. Let's see. Sheri Repp. And then I 22 understand Erick Martinez is now here. And if he would 23 come -- get in the queue line there. 24 Let's go down. Let me see. Jose Delgado, are 25 you here on behalf of Congressman Sanchez? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 157 1 If you are -- he's not here. Okay. 2 Ronald Gastelum, are you here from the L.A. 3 Chamber of Commerce? If you'd come forward please. 4 Bill Molinari from the City of Montebello. 5 And George Leddy representing Assembly Member 6 Montanez. 7 So we'll go to first Sheri Repp. 8 MS. REPP: Thank you very much. And I appreciate 9 the opportunity to be here this evening. 10 I'm Sheri Repp. I'm representing the City of 11 Carson. I'm responsible for the planning activities 12 within the Carson community. 13 I'm also a resident of Long Beach. So I have 14 day-to-day activities associated with railroads reports 15 and lots of other things that impact our air quality. 16 Like the communities of Wilmington and Long 17 Beach, Carson is very much the center of the hour glass 18 for all of the rail traffic that comes from the ports and 19 goes throughout the region and on into other parts of the 20 country. And so we on almost a daily or minute basis feel 21 the impacts of the railroad as it comes through our 22 community. 23 We truly appreciate all of the resources that are 24 available to us through the Air Resources Board and the 25 Air Quality Management District. We rely upon you to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 158 1 provide the guidance, the policy, and ultimately the 2 regulations that help make our lives better in terms of 3 the air quality impacts from not only the rail but other 4 emissions. 5 But we are concerned about the impacts or the 6 relationship of the MOU as it interrelates to our 7 day-to-day activities and our ability to hopefully have 8 some impacts as it relates to air quality reductions. 9 The MOU when we first read it we were very 10 helpful. We happen to have one of the facilities that 11 will be studied through this process. And we are very 12 much looking for emissions that will be reduced so that 13 our residences are healthier. 14 But we're also very concerned with what we hear 15 from the people who are testifying before you this evening 16 and the Air Quality Management District. 17 And we do feel that there are provisions within 18 the MOU that are not necessarily as strong as we would 19 like them to be. And with that, we encourage you to look 20 at opportunities to either revise the MOU or possibly set 21 it aside at this point until there can be further 22 negotiations, further discussions with the other 23 stakeholders within our state, so that we can make sure 24 that this is the strongest representation that we can have 25 and the strongest relationship that we can have with the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 159 1 railroads. 2 I do appreciate you this evening and I look 3 forward to further contact. 4 ACTING CHAIRPERSON RIORDAN: Thank you very much. 5 Appreciate your testimony. 6 Mr. Martinez. 7 MR. MARTINEZ: Good evening. And thank you for 8 the opportunity to speak before you tonight. 9 I represent Council Member Bonnie Lowenthal as a 10 legislative assistant in the City of Long Beach. The City 11 Council District 1 and City Council District 7 are both 12 adjacent to this proposed facility. Most of our westside 13 residents will be directly impacted by this proposal. 14 For those of you who are unfamiliar with the 15 area, our district also incorporates portions of the Port 16 of Long Beach as well as Santa Fe Avenue, Long Beach 17 Boulevard -- I'm sorry, not Long Beach Boulevard -- but 18 Santa Fe Avenue, Anaheim Boulevard and Pacific Coast 19 Highway. All of our corridors have a lead into the 20 proposed facility. As well, there are seven Long Beach 21 unified schools that are located either immediately 22 adjacent to the facility -- the proposed facility or in 23 the immediate vicinity of the facility. 24 Having said that, thank you very much for 25 providing this opportunity for the public to give input PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 160 1 and testify to you regarding the memorandum of 2 understanding between CARB, Union Pacific, and Burlington 3 Northern Santa Fe Railroads. However, this public input 4 should have been included as one of the initial steps of 5 negotiations with the railroad industry. 6 The decisions that this Board makes affect the 7 health and safety of millions that live here in the 8 greater Los Angeles area, and the residents of Long Beach 9 are at the forefront of this threat. The credibility and 10 effectiveness of your governing body is at stake. 11 As you know, air quality has been an issue of top 12 concern to the people of Los Angeles County for over 50 13 years. I'm disturbed that the MOU does not require the 14 use of alternative fuels and technology in an aggressive 15 manner. 16 It has been technology that has allowed our 17 region to improve its air quality. Clean burning engines, 18 alternative fuels, stricter enforcement, and the constant 19 push by those who understand the importance of our 20 environment and the effect it has on our quality of life 21 have all contributed to those improvements. 22 I applaud you for getting the railroads to the 23 table to negotiate. Historically I know that has been 24 difficult. However, I urge you to remove the provisions 25 in the current MOU that allows the railroads to back out PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 161 1 from the agreement if any other local, state or federal 2 agency pursues a measure with the same goals as the MOU. 3 I would also urge that the MOU be amended to 4 require the railroads to aggressively pursue air quality 5 technologies on a statewide basis. I will be following 6 the process to ensure that the interests of the people I 7 represent are protected and air pollution impacts of 8 railroad operations are reduced or mitigated to the 9 fullest extent. 10 Again, this is for our children, the children of 11 Long Beach. 12 Thank you. 13 ACTING CHAIRPERSON RIORDAN: Thank you very much. 14 I appreciate your comments. And thank you for staying 15 with us. 16 All right. Let me be sure. George Leddy, are 17 you in the room? 18 Okay. And Mayor Bill Molinari, are you here? 19 Here? 20 Gone. Okay. 21 Ronald Gastelum, are you here on behalf of the 22 Chamber of Commerce? 23 Don't see him. 24 Then let me move down. Adrianna Figueroa, are 25 you here? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 162 1 Let's see. Adrianna. 2 Aaron France from the City of Buena Park? 3 Okay. Good. All right. 4 Let me go to Mr. Leddy. 5 MR. LEDDY: Thank you, Madam Chairwoman. My name 6 is George Leddy. I am the Senior Assistant for 7 Environment for Assemblywoman Cindy Montanez. 8 I have with me two letters. One from the 9 Assemblywoman, and the second letter from Steven Perez, 10 City Council Member for the City of San Fernando. And I 11 appreciate your offering us the chance to submit these 12 letters by hand this evening. 13 I only want to read maybe three paragraphs from 14 the Assemblywoman's letter. 15 "Dear Chairwoman Riordan: This letter is written 16 as a contribution to the ground swell of opposition that 17 has emerged over the last few months in the South Coast 18 Region to an MOU between this important state 19 environmental regulatory agency, the CARB, and the 20 significant and influential rail transportation giants, 21 the UP and the BNSF. 22 "The reason for the ground swell of protest and 23 the opposition can be clearly seen across a range of 24 issues. At the heart of this sentiment, which I join with 25 this letter, is the process that led to the MOU PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 163 1 circumventing public participation and the rightful role 2 of elected officials in local and state government to 3 develop regulations in the public interest and in the 4 light of day. 5 "A cursory look at the CARB MOU shows that it 6 addresses these regulatory goals. Closer examination 7 shows a lax and informal process that is hostile to 8 transparency and accountability in government. And as we 9 examined this deal between the CARB and the rail industry, 10 we see that it even has a clause that precludes any state 11 agency from exercising its regulatory role lest the MOU 12 and all its provisions be rendered moot. 13 "Ironically the innovations and measures 14 identified in the MOU are in fact the substance of all 15 efforts made outside CARB by government and agencies over 16 the last few years. 17 "As Chair of the Select Committee on 18 Environmental Justice and Assembly Member for the 19 Northeastern San Fernando Valley, I am concerned that the 20 MOU provisions in this CARB/railroad statewide agreement 21 might prevent us from advancing a cooperative approach to 22 solving air quality problems in the rail industry. The 23 urban switching yards in particular are located in areas 24 with the highest concentration of working families and 25 people of color. The environmental justice provisions of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 164 1 CEQA, designed to address the cumulative effects of 2 industrial emissions on a community, would be circumvented 3 in the MOU. 4 "From the City of Commerce to Pacoima, from Long 5 Beach to the San Gabriel Valley, the residents of this 6 city expect the state to work in the interests of their 7 physical, economic and social well being. As we succeed 8 in increasing public participation in the regulatory 9 process and achieve a greater transparency in government, 10 I urge you to review the content and process of the MOU 11 with the rail industry and to develop a new set of goals 12 that will meet the needs of the millions of people in the 13 South Coast Region. 14 "Sincerely, Cindy Montanez, Assembly Member, 39th 15 District." 16 ACTING CHAIRPERSON RIORDAN: Thank you very much. 17 I appreciate your being here. And thank you. And we'll 18 make that part of the record. 19 Okay. Next speaker please. 20 MR. FRANCE: Good evening, Madam Chair and 21 members of the Board. My name is Aaron France. And in 22 the interests of time, I'll be brief. 23 I'm here to represent the City of Buena Park. 24 I've given a copy of a letter from Mayor McCay to the 25 clerk of the Board. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 165 1 But I did want to go on record to report that our 2 Mayor and City Council oppose the current MOU. 3 And that's all. 4 ACTING CHAIRPERSON RIORDAN: That's very good, 5 and I thank you and appreciate your comments and making 6 the letter part of our record. 7 Victor Franco, are you here? 8 Victor? 9 Henrietta Salazar from Pico Rivera, are you here? 10 And then let me ask if John Cross, are you here? 11 John. And followed by Lois Gaston. They were 12 here earlier today, and I want to be sure that they're 13 heard. 14 And then I know that Bonnie Holmes-Gen and Elina 15 Green have -- you can be the next two speakers because I 16 know you need to leave early. 17 Okay. John. 18 MR. CROSS: Yes, ma'am. My name is John Cross. 19 I live on the west side of Long Beach. And I'm 20 representing the little guy, the residents of the west 21 side of Long Beach. 22 You guys are to be commended tonight for having 23 this meeting, which you're about a day late and a dollar 24 short in the dereliction of your duty. You should have 25 been having these meetings a year ago when your staff's PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 166 1 having them behind closed doors. This should have been 2 open to the public and you'd have developed the 3 information you needed back then instead of waiting until 4 today. 5 The only person that's going -- people are going 6 to benefit from this program right now, the MOU, is the 7 railroads. They're signing a deal with you, the State of 8 California. That's so they don't have to mess with any of 9 the small guys, don't have to be worry about lawsuits from 10 cities where kids are dying from asthma, heart disease and 11 people are dying from cancer. They want to build a 12 railroad yard wherever they want and want to do whatever 13 they want. And what's going to happen, you're going to -- 14 you'll approve this MOU. It's going to turn around. And 15 the first city that files a lawsuit, they're saying, 16 "That's it. We can't deal with it. We're out of it. 17 We're out of here, MOU. We dealt with the State and they 18 didn't hold up their end, so we don't have to hold up our 19 end." 20 And you remember, they could always fall back on 21 the federal government. "We come under federal 22 regulations, not State of California or the local 23 municipalities." 24 The school that the AQMD showed, that's where my 25 grandson goes to school. Right behind that truck is a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 167 1 rail line. Right up behind that's where the new BNSF's 2 railroad goes in. 3 You think the railroad's going to live up to what 4 they say? Less than a quarter of a mile from my house is 5 the Union Pacific Railroad. That railroad hasn't lived up 6 to anything they said they were going to do since they 7 went in there. "We're going to be a good neighbor, we're 8 going to be friendly, we're going to take care of 9 business" and everything else. 10 I've got a young girl, a couple, that lives in my 11 neighborhood, got three kids that's in Hudson Middle 12 School, the school that was on that picture. All three of 13 them has asthma. All three of her little girls have 14 asthma. 15 There's a lady that went in there to Union 16 Pacific one night because they were making a lot of noise 17 with their trucks and stuff like this, engines running and 18 stuff. She went in there to talk to the supervisor for 19 the night shift, asking, "Is there any way you can quiet 20 it down?" He came out and told her, "Lady, we don't have 21 to talk to you. We don't have to talk to anybody. You 22 can leave this facility." She goes, "But I want to get 23 some things cleared up." He had security escort her out. 24 This was a 55 year old school teacher. He had security 25 escort her out because he didn't want to listen to her PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 168 1 problem. He said, "Here's a number. Call this number." 2 Well, by the time she got the runaround with Union 3 Pacific, she talked to somebody in Oklahoma and there's a 4 bunch of other people. But no one ever called her back to 5 solve the problem. 6 They're not good neighbors. The railroad's going 7 to back out of any agreement they can as soon as they get 8 the first opportunity. As soon as a local municipality 9 turns around and says, "Well, we're going to do this to 10 you," "Well, we don't have to follow the state regulations 11 anymore." 12 You guys are going to go ahead -- if you approve 13 this and listen to your staff, which did all this behind 14 closed doors instead of in the public, you're going to end 15 up with egg on your face, because a couple years down the 16 road this is going to be null and void because nobody's 17 going to listen to you, not going to be sensible. 18 And what I cannot understand -- you are 19 representatives for the people of the State of California. 20 And why you can let a business commit genocide in low 21 income areas by putting railroad yards in there, by having 22 rail yards run. As appointed representatives by the State 23 of California, you and every state legislator and every 24 local legislator are to get together and petition the 25 federal government to put regulations on the railroads, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 169 1 instead of sitting there and Mickey Mouse and band-aid the 2 solution with your ideas. 3 ACTING CHAIRPERSON RIORDAN: Mr. Cross -- 4 MR. CROSS: Yes, time's up. 5 ACTING CHAIRPERSON RIORDAN: -- you're out of 6 time. And I thank you. 7 (Applause.) 8 ACTING CHAIRPERSON RIORDAN: Ms. Kennard. 9 BOARD MEMBER KENNARD: I have a question for 10 legal counsel. 11 This agreement does not in any way absolve the 12 railroads from liability, a lawsuit by any city or 13 individual, does it? 14 ACTING GENERAL COUNSEL JENNINGS: Certainly not 15 in terms of enforcement of emission requirements. 16 EXECUTIVE OFFICER WITHERSPOON: Or a tort. If 17 there was a tort lawsuit, it wouldn't relieve them either 18 of a tort obligation. 19 ACTING GENERAL COUNSEL JENNINGS: That is 20 correct. I'm sorry. I didn't -- 21 BOARD MEMBER KENNARD: Yes. Thank you very much. 22 ACTING CHAIRPERSON RIORDAN: Lois Gaston. 23 Well, she has -- Okay. 24 Bonnie Holmes-Gen. And before, Bonnie, you start 25 speaking I want to lay out some of the ways in which we're PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 170 1 going to be able to hear everybody speak. And I'm kind of 2 repeating what I said at the earlier day because I know a 3 number of you have just joined us this evening. 4 Everybody is going to be given three minutes. 5 And there is a system by which at the speaker's podium 6 there's a light and it indicates to you, as you're three 7 minutes are being used, and you will see then a red light 8 when your time is up. At the red light or at my 9 encouraging, you are to conclude your statements. 10 Because I want everybody to be heard tonight. 11 And we can't unless we have it very well organized. 12 I also may ask that some people come up to be in 13 line so that we can take you one right after the other. 14 Because if I call people up who are, say, in the back of 15 the room, it takes you a long time to get up here to the 16 front. And that, again, we use time, and we need to be 17 watchful because we want everybody again to be able to 18 speak. 19 So it's sort of a system of everybody gets a fair 20 opportunity. And the respect that we show each other is 21 very, very important. 22 So, Bonnie, if you would begin please. 23 MS. HOLMES-GEN: Thank you. I'm Bonnie 24 Holmes-Gen with the American Lung Association of 25 California. And I do appreciate your system because it PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 171 1 does give everybody a fair chance. Thank you very much. 2 And I'm here today to join with those who are 3 calling on the Board to rescind the railroad MOU and to 4 start over with a new, open, public process to develop a 5 new set of strategies to control railroad pollution. 6 The American Lung Association of California is 7 extremely concerned about the weak provisions of the 8 railroad MOU because of the huge importance of railroad 9 emission reductions to meeting state and federal air 10 quality standards and the tremendous health and 11 environmental justice implications of controls on 12 railroads. 13 And I'm still at three minutes. Wow. 14 ACTING CHAIRPERSON RIORDAN: I'm sorry. You know 15 what I'm doing. I'm looking -- you're an honest person. 16 (Laughter.) 17 ACTING CHAIRPERSON RIORDAN: An honest person. 18 I'm looking down to see where my next speaker is. 19 MS. HOLMES-GEN: We are especially concerned 20 about the health burdens placed on communities close to 21 railroads that are experiencing the highest levels of 22 particulates from railroad operations. 23 Rail yard pollution is increasing cancer risk and 24 contributing to asthma attacks, slowed lung growth in 25 children, chronic illnesses and other problems in these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 172 1 communities. 2 And the American Lung Association is also 3 extremely concerned, along with other health and 4 environmental groups and air districts, about the lack of 5 public process and input in developing an MOU with such 6 wide ranging impacts on the health and welfare of all 7 Californians. The lack of public process in this instance 8 is counter to the strong reputation that the Air Resources 9 Board has developed in the past for outreach and 10 consultation with the public. And it's especially 11 surprising and disappointing given the high level of 12 public concern that has been expressed about railroad 13 emissions over the past few years and specifically during 14 the time that the MOU was being negotiated. 15 Public hearings like this should have been held 16 before any updated MOU was considered by the Air Resources 17 Board. 18 The Lung Association has many concerns with the 19 substance of the MOU. And many of these concerns have 20 been communicated in detail by air districts and community 21 groups, that overall the provisions of the MOU are 22 generally weak, even weaker than some existing and 23 proposed air district rules and regulations, and they do 24 not move us forward as a state in substantially 25 controlling diesel emissions and meeting the goals of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 173 1 CARB's diesel risk reduction plan. The bottom line is 2 that we view the MOU as an empty shell. It does not have 3 the detail, the teeth, the clear goals for diesel 4 pollution reduction that are needed to be successful. 5 The broad termination clause on its own is reason 6 enough for you to rescind the MOU. You've heard Senator 7 Lowenthal's speech earlier today, and he told you that 8 this clause will have a chilling effect on state 9 legislation to control railroad emissions. 10 There are many other examples of concerns. For 11 example, the MOU allows railroads to define feasible 12 mitigation measures on their own. There's no schedule for 13 a completion of the health risk assessments. There's no 14 risk level or risk target that would trigger mandatory 15 risk reduction. There are many concerns that need to be 16 fixed. 17 We believe a lot of these issues could have been 18 resolved with a more inclusive process. 19 So at this point we believe it is in the best 20 interests of public health and the environment to rescind 21 the MOU and to start over. And we implore you to do that. 22 We believe that the ARB should now work together with the 23 air districts and the public to develop strong enforceable 24 state and local rules, regulations and programs to limit 25 railroad emissions in place of voluntary agreements. And PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 174 1 we ask you to take action tonight to rescind the MOU. 2 ACTING CHAIRPERSON RIORDAN: Thank you very much, 3 Bonnie. 4 (Applause.) 5 ACTING CHAIRPERSON RIORDAN: Yes, Dr. Gong. 6 BOARD MEMBER GONG: I can ask Bonnie this 7 question because I know her. 8 And my question is this: Aren't you concerned 9 that if we reject the MOU, that we will actually lose the 10 emission reduction, the 20 percent? And is this 20 11 percent better than 0 or better than 10 percent? At least 12 it's a start. How would you answer that question? 13 MS. HOLMES-GEN: Well, I would answer that, you 14 know -- we want to see the highest level of emission 15 reduction possible. And we believe that we can get a 16 higher level through other mechanisms, through regulations 17 at the state and local level, through possibly negotiating 18 a new agreement, and through state legislation. But we 19 believe that this particular agreement is so flawed that 20 we just -- we're not even sure exactly how the 20 percent 21 can be estimated given the vague language that's in the 22 MOU. I honestly don't understand how that level can be 23 estimated, because there are so many determinations that 24 are left up to the railroads to make. 25 And there's no specific risk reduction goal, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 175 1 there's no timelines. There are so many details that are 2 not covered in the MOU, so it's hard to know how that is 3 calculated. 4 But we also believe that, you know, the 5 communities have to be involved and the air districts have 6 to be involved in the process of developing this MOU and 7 developing goals that all parties believe are fair and can 8 be reached and can be enforced. 9 BOARD MEMBER GONG: Thank you. 10 (Applause.) 11 ACTING CHAIRPERSON RIORDAN: Thank you, Bonnie. 12 Henry Lo. 13 Henry Lo, are you here, representing Gloria 14 Romero? 15 I have to be honest. There's a gentleman sitting 16 here, and I probably called his name. And I apologize. 17 MR. GASTELUM: No, I apologize for not being here 18 when you called. 19 My name is Ron Gastelum. I am the Executive Vice 20 President for the Los Angeles Area Chamber of Commerce, 21 which represents small and large employers throughout 22 southern California. 23 The L.A. Chamber fully supports the staff 24 recommendation to continue implementing this important and 25 innovative agreement. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 176 1 The L.A. Area Chamber of Commerce fully 2 appreciates the relationship between goods movement and 3 air quality. And through our Mobility 21 Coalition, we 4 have prioritized improving our region's transportation 5 infrastructure, not just to promote more efficient goods 6 movement in and out of our ports, but also clearly to 7 improve the quality of life and better public health 8 through reduced emissions in our community. 9 We believe your staff has done a thorough job of 10 presenting the context and compelling reasons for this 11 agreement. I feel fortunate that I was hear earlier in 12 the day to listen to that presentation. I'm sorry that 13 people that have arrived this evening are not going to get 14 the benefit of that presentation, because they stated a 15 very compelling case, from a regulatory and public policy 16 standpoint, that real improvements can be made through 17 this approach. 18 At the same time we understand that there may be 19 alternative means to pursue the same goals. Such has been 20 forcefully advocated by our local air quality management 21 district. 22 At the Chamber we're very supportive of our 23 district. We think they do an outstanding job in our 24 region. 25 However, we are most persuaded by the unique PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 177 1 opportunity that is presented by the MOU to move ahead 2 with specific control measures that will yield significant 3 reductions now, without contentious litigation, and well 4 in advance of what might be expected from a traditional 5 rule-making process. 6 When you look at the history of environmental 7 regulation in this country over the last 25 years, one 8 thing is certain: Millions and millions of dollars have 9 been expended, and delays in implementation of effective 10 health protection measures have occurred with the 11 litigation-prone regulatory strategy that we have pursued. 12 That is our strategy. And we can look past in the last 25 13 years -- I don't know that we can count the dollars wasted 14 and the time lost. But any time litigation has been an 15 option, we have certainly gone backwards from what we 16 might have otherwise accomplished with parties coming 17 together. 18 We have notable examples of failures and 19 successes with this model. Most would agree that the 20 strategy is not perfect. Therefore, there is clearly room 21 to pursue new, innovative and cooperative non-litigation 22 strategies. 23 We are not deciding a major change in the way 24 we're going to regulate business or achieve emissions with 25 this MOU. All of the other strategies are still available PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 178 1 to us. But we will learn and we will certainly be held 2 accountable for how well we do in this implementation 3 strategy. 4 I think that -- 5 ACTING CHAIRPERSON RIORDAN: I need a concluding 6 statement. 7 MR. GASTELUM: Then my concluding statement is: 8 More education. We would all benefit from more education, 9 more process. But that is not a good reason to walk away 10 from this very unique opportunity. 11 Thank you very much. 12 ACTING CHAIRPERSON RIORDAN: Thank you very much. 13 Now, that is something the Chairman doesn't 14 allow. You may be very supportive. But everybody's 15 entitled to their comments. And to indicate your 16 displeasure is just not acceptable. Thank you. 17 Let me ask Mark Stehly, Lupe Valdez, Michael 18 Barr, Kirk Marckwald, and Jalene Forbis, if you will be 19 over there on the side, please, getting ready to make your 20 presentations. 21 MR. STEHLY: Madam Chair, Board members. I'm 22 Mark Stehly, Assistant Vice President of Environmental of 23 BNSF Railways. Thanks for the opportunity to talk about 24 the particulate matter MOU today. 25 I'm the first of four railroad speakers who are PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 179 1 all willing to answer whatever questions you may have to 2 the best of our ability. 3 I want to summarize some key points: 4 First, let me say that we know this Board and 5 your staff as well as all the local air districts have a 6 very tough job to reduce air emissions and improve air 7 quality. We share your goal. 8 Second, we support staff's recommendations to 9 give the staff flexibility to work out implementation of 10 the agreement without requiring amendment. We feel 11 amending the agreement to tweak it is counterproductive. 12 We support staff's recommendation that any clarifications 13 can be accomplished through accompanying a clarifying 14 letter and implementation agreements with local air 15 districts. 16 Third, in sharing your goal of reducing emissions 17 from railroads BNSF did enter into this agreement in good 18 faith. And we are committed to the MOU process and 19 working in an open manner with the community and local 20 districts on Phase 2 of the process. 21 No one can say that any combination of proposed 22 district regulation and state legislation could provide 23 greater or faster emission reductions from locomotives and 24 rail yards than this new MOU. This is a good thing for 25 the citizens of the region as well as the rest of the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 180 1 state. 2 BNSF has accomplished a great deal related to air 3 emissions through the 1998 and the 2005 MOU. Our G.E. 4 line haul locomotives are totally equipped with automatic 5 start-stop. That's approximately 2,000 of the 6,000 6 locomotives in our national fleet. 7 We have rebuilt approximately 2,000 locomotives 8 to Tier 0 standards, reducing NOx emissions by a third. 9 They will be done -- those 2,000, some of them are being 10 done here to the end of this year. 11 In addition, we purchased 621 Tier 1 and 366 Tier 12 2 locomotives. Those became -- the Tier 2 locomotives 13 became available just in the year 2005. 14 We have developed the necessary training 15 materials and are all ready to begin training under the 16 2005 MOU. We've held community group meetings with our 17 Commerce and Watson yard neighbors. That happened this 18 week, again as outlined in the 2005 MOU. Those have 19 already been held and we're getting more dialogue as 20 envisioned in the MOU. 21 We had a meeting set up with the neighbors in 22 Richmond. But the time -- they couldn't make enough time 23 on their schedule, and so we're postponing it to the near 24 future. 25 We have accomplished a great deal, and we're PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 181 1 poised to accomplish a lot more. These MOUs engender 2 technology development because our suppliers see an 3 expanded marketplace for their new products. The proposed 4 G.E. line haul hybrid locomotive is a good example. This 5 technology takes dynamic brake energy, which we use to 6 control train speed, we capture it and we use a promotive 7 power much like the Toyota Prius. A very early proof of 8 concept was on our railroad a year ago. A prototype 9 should be available in the first quarter of 2006. These 10 will reduce emissions beyond the 2005 Tier 2 rules. 11 The emissions benefit under the 1998 fleet 12 average MOU is one factor in encouraging the development 13 of this new technology. 14 Rail is the most environmentally friendly way to 15 move goods throughout the country. We are committed to 16 continuing to be a part of the solution in improving air 17 quality as the MOU is implemented. We support staff's 18 recommendation. 19 ACTING CHAIRPERSON RIORDAN: Okay. Thank you 20 very much. 21 Yes, Mayor Loveridge. 22 BOARD MEMBER LOVERIDGE: Mark, several questions 23 if you could offer a brief answer. 24 The first is on clarifying terms. That given the 25 uncertainty that we've heard this afternoon about what PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 182 1 some terms mean and what is and not included, wouldn't it 2 be better to have the terms clarified and identified 3 before the MOU is approved? 4 MR. STEHLY: I agreed with Catherine. I think 5 when we sat down and talked over the months, that we were 6 pretty clear on what we meant by the terms. If they 7 aren't all that clear to other people, I think people 8 should ask us to clarify them and we will sit down and 9 clarify them. But we're off and running on the MOU. 10 We're meeting the public meetings. And why should we not 11 get the benefit of emissions reduction while we're going 12 through this clarifying process? 13 BOARD MEMBER LOVERIDGE: Second question. The 14 releasing clause in 1998 was a fairly narrow releasing 15 clause. The one in 2005 is much broader. Why was it 16 necessary to have a broader release clause than what was 17 true in 1998? 18 MR. STEHLY: I think if you read both clauses, 19 you don't reach exactly that conclusion. 20 The release clause on this new one said that it 21 has to be adopted and attempted to be enforced. Now, 22 that's fairly narrow, because the previous agreement I 23 think it only had to be adopted. It didn't have to be 24 attempted to be enforced. 25 And so there is interpretation that the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 183 1 termination clause for this is not wider than the 2 termination clause for the previous MOU. 3 BOARD MEMBER LOVERIDGE: You see any possibility 4 for further negotiation given the kind of -- obviously the 5 kind of public comments, the kind of differing positions 6 of air quality districts, the kind of differing positions 7 you find in South Coast? Is there any possibility of 8 further negotiations to try to bring everybody to a common 9 table? 10 MR. STEHLY: I don't think you can get everybody 11 to agree to yes. I just don't see it. People are going 12 to come off on the agreement at all these different 13 places. How are we ever going to get agreement when 14 people can't agree? I find that very difficult to 15 achieve. 16 BOARD MEMBER LOVERIDGE: If we had an exemption 17 for the South Coast District in terms of release clause, 18 your position on that? 19 MR. STEHLY: We can't have a patchwork of 20 agreements of things to meet. They would do the health 21 risk assessment different than ARB would. So here we 22 would have two documents done differently, reaching some 23 similar conclusions but different conclusions. I think 24 it's confusing to the public. If they have a different 25 idling rule than the rest of the state, how do we comply PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 184 1 with that? It's very difficult. And that's why we think 2 there needs to be one statewide rule. 3 BOARD MEMBER LOVERIDGE: As you probably know, 4 the California exemption was based on the fact that the 5 air quality in California was worse than any other place 6 in the country. That's the reason that George Murphy put 7 it in, that's the reason there was bipartisan effort of 8 the California delegation to have exception. And I guess 9 the argument is you have 17 million people in southern 10 California. It would be the third largest state if it 11 were a state. Ten million -- it is the tenth ranked in 12 the economy. Worst air pollution in the country. It's 13 not the same as other places and states. 14 MR. STEHLY: That's why we did the fleet average 15 agreement for nitrogen oxides. But when you live next to 16 a rail yard, you have the same problems in southern 17 California with particular matter that you do in 18 Roseville, that you do in Barstow. Those health effects 19 are the same. It's not like the NOx that's a regional 20 pollutant. And we agreed to do the fleet average 21 agreement only for southern California for NOx. 22 BOARD MEMBER LOVERIDGE: The last is just a -- it 23 seems to me so important for southern California, 24 especially where so much of the goods of our country come 25 in to two ports, for the goods movement to work. It seems PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 185 1 to me for the goods movement to work for southern 2 California, we need to have it work for communities and 3 rail and trucks. And I guess the question really is 4 whether or not we can be good neighbors in making this 5 work for all of us. And in the past I think the community 6 assessment was that railroads didn't care much about being 7 good neighbors. So I guess it's important I think, given 8 where we are now, that there's kind of a cede change, 9 there's a kind of commitment to be good neighbors. Your 10 comment on that. 11 MR. STEHLY: You know, I do think we have room to 12 improve on being good neighbors. And I think, you know, 13 we are -- our corporation has matured a great deal over 14 the ten years -- since we have been working in California. 15 Again, if you live next to a rail yard, again 16 whether you're here or in Richmond or in Barstow, those 17 health impacts are the same. They should be treated the 18 same. 19 BOARD MEMBER LOVERIDGE: Mark, thanks. 20 ACTING CHAIRPERSON RIORDAN: Thank you. 21 Before Ms. Kennard asks her question, I have to 22 share that somebody may have some piece of equipment 23 that's interfering with our system. 24 Folks, if you would -- I don't think -- we don't 25 think it's you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 186 1 I don't think so. They do not think so. 2 No, you're okay. 3 You're not the problem. 4 Thank you, whoever turned it off. I do 5 appreciate that. 6 Ms. Kennard. 7 BOARD MEMBER KENNARD: I have a question 8 regarding the release clause. And I don't want to presume 9 that I fully understood what South Coast did say regarding 10 the release clause. But I got the impression that that 11 was a far more palatable release clause in the 1998 MOU 12 than the current one. And yet, if I understand you 13 correctly, you find that the current one is more 14 restrictive. 15 Would there be an opportunity to change the 16 release clause in the current MOU and revert it back to 17 the 1998 language? 18 MR. STEHLY: You know, it's difficult to see how 19 you could reopen it for one clause. And I guess you could 20 if you directed people to reopen it for one particular 21 clause. But it seems to me if you reopen it, you're going 22 to open it for a lot of things. But if it was to one 23 clause, you know, I guess we could reconsider it. 24 We did a lot of work on what was the right 25 termination clause. There were four or five different PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 187 1 versions that -- but that's the one that we settled on. 2 So -- 3 BOARD MEMBER KENNARD: Well, let me just make 4 sure -- I want to make sure that my question gets 5 answered. And, that is, in your individual view, the 1998 6 termination clause is in fact more restrictive -- or less 7 restrictive? 8 MR. STEHLY: Yeah, I think -- my recollection of 9 the two clauses is that this one was tighter and that 10 someone had to adopt it and had to be enforced against the 11 railroad before we could use that to trigger it. And I 12 don't think that enforcement part was part of the previous 13 1998 agreement, not to the best of my knowledge. 14 BOARD MEMBER KENNARD: Thank you. 15 ACTING CHAIRPERSON RIORDAN: Dr. Gong. 16 BOARD MEMBER GONG: Why did the two railroads 17 sign off on the MOU? What was your motivation to do so? 18 MR. STEHLY: Well, we do want to improve air 19 quality, and we proved that with the 1998 MOU. And it was 20 innovative and it's never been done by any other mobile 21 source. It was a five-year scrap -- hundred percent 22 scrappage program over five years. I mean we do listen. 23 We live out here. Our former chairman was from here. So 24 we are very, you know, tuned in on these issues. And we 25 do want to reduce -- but that was about NOx. And we did PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 188 1 want to reduce our particulate emissions. I mean we hear 2 people around our facilities. We talk to them, you know. 3 Some of them are employees. We have -- so we felt we 4 wanted to do something. 5 But we do want to do something statewide that we 6 don't have a patchwork of different rules, a different 7 idling rule, a different visible emission rule, you know, 8 and a different health risk assessment rule. And so for 9 us it was about bringing some uniformity and getting 10 reductions early, and meaningful ones, and having a public 11 process for Stage 2 where the communities were there where 12 we can -- when we did the health risk assessment, we all 13 looked at what the emissions are, where they are, what the 14 impacts are. And then we talked about, "What can be done 15 further in the long term about reducing those emissions?" 16 That was the -- that's what we envisioned when we went 17 into it. 18 BOARD MEMBER GONG: Thank you for that response. 19 I think it's pretty obviously that there's some 20 people in the audience believe that the railways are 21 basically the evil empire, and that they have recounted 22 some instances of basically being a poor neighbor, 23 disrespectful, et cetera. And that's probably the 24 superficial language for that. 25 But I would like to know: What's your take on PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 189 1 that? Do you think that the railways have been actually 2 that responsible as corporate citizens? And are you going 3 to be responsible for this MOU -- 4 MR. STEHLY: Yeah, we are going to be 5 responsible -- 6 BOARD MEMBER GONG: -- and honor it? 7 MR. STEHLY: -- for this MOU. We believe in it, 8 you know. I don't go to my chairman and get him to agree 9 to something if I don't believe in it and he doesn't 10 believe in it. So they are real emissions, done early, 11 that are important, where we don't have to bring a bunch 12 of lawyers and talk about who's got what jurisdiction. We 13 can get on with it. And there's a process for public 14 involvement around our yards about further reductions. 15 We're committed to it. And we're -- you know, 16 we're in California for the long term. I mean we've been 17 here for a long time, we want to be here for a long time. 18 We want to serve the needs of the public and the needs of 19 the shippers and the ports. And, you know, we've been 20 developing a lot of technology down in Southwest Research 21 on diesel particulate filters. We did it on our own. We 22 spent one and a half million. We're committed to another 23 3.5 million. 24 The hue things that Chung Liu talked about, that 25 is one of the three that we're testing down there. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 190 1 Several of their earlier versions failed. They plugged. 2 They didn't work. 3 You just -- it takes a lot of development work to 4 be able to use a lot of this technology, and we're 5 committed to it. We've got four LNG locomotives that we 6 run everyday in the South Coast. Did that on our own. 7 Nobody asked us to. On our new facility that we would 8 like to put in near the ports, we agreed to use electric 9 cranes for the gantry cranes. Had not been done in the 10 United States for loading rail cars. 11 We agreed to liquefied natural gas locomotives 12 or -- locomotives for the switch engines, that we agreed 13 to liquefied natural gas hostler trucks. We got a Carl 14 Moyer grant in for ten in the South Coast right now for 15 our existing facilities. 16 I mean, you know, I -- people think we haven't 17 been good neighbors, they can show you instances of that. 18 I don't think that's the total story of about who we are 19 and the kind of neighborhood we are. 20 ACTING CHAIRPERSON RIORDAN: Maybe there's a 21 corporate change that's occurred. I don't know and you 22 don't need to comment. But lots of times, you know, 23 corporations change leadership and things change in the 24 process. 25 Ms. Berg. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 191 1 BOARD MEMBER BERG: Thank you. 2 We've heard testimony that the termination clause 3 within the MOU is being used to be able to thwart efforts 4 with expansion, with ideas, some of the ideas that you 5 just brought up on things that you are doing, in order to 6 say that the railroads would only meet the standards of 7 the MOU. Could you please comment from an executive 8 position with the railroads whether that termination 9 clause colors your presentations and the things that 10 you're doing when it comes to expansion and other new 11 things within the terminals or intermodal terminals? 12 MR. STEHLY: Okay. We have not talked about 13 using it in that way. So there have been no corporate 14 discussions that this would be a good thing to use in 15 those. So to the best of my knowledge -- and I'm part of 16 our expansion teams and new teams -- we're not going to 17 use that. A brand new facility, you negotiate the 18 mitigation, the way you're going to run it, what's going 19 to be on it as part of the permitting process and the 20 brand new facility. Now, the MOU doesn't affect that. 21 I would say if you had a facility and it was part 22 of a lease with a government agency, and they came in two 23 years, you know -- and say you put a lot of money and 24 invested in the facility and two years later they come in 25 and they say they want to redo the lease agreement and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 192 1 make all of your capital stranded and not worth anything 2 and you have to start over, I think that would be a real 3 problem. I don't know that we would use the MOU. But it 4 would be a real problem if you've made a large amount of 5 investment and two years later somebody decides that was 6 the wrong investment, they want you to make something, you 7 know, different now. 8 BOARD MEMBER BERG: But wouldn't that be a real 9 problem regardless if we had the MOU or didn't have the 10 MOU? 11 MR. STEHLY: That's right. That's what I'm 12 saying, it would be a problem and that -- but I don't 13 think we would use the MOU as sort of a weapon in that, 14 you know. We just think it would be unfair. 15 BOARD MEMBER BERG: I think it's important to me 16 that the MOU isn't used as a big stick. And that is some 17 of the concerns that I've heard. And I would be extremely 18 disappointed if we utilized the MOU in that way. 19 And I don't want to belabor the point, because I 20 think it has been made several times. But I do need to 21 state that I do think there is improvement in the 22 community relationships. And I really do hope that, 23 regardless of how the MOU goes, that all the railroad 24 companies take a very serious, very committed action, 25 because actions are what's really going to change the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 193 1 perception to listen and be at the table with the 2 communities. 3 And I thank you for coming tonight. 4 MR. STEHLY: May I comment? 5 ACTING CHAIRPERSON RIORDAN: Sure. 6 MR. STEHLY: I believe performance counts, you 7 know. That's how people should judge us, that's what we 8 should be accountable for. This MOU gives us a chance to 9 perform and gives us a chance to perform statewide for all 10 the people in the state. And I think you should hold us 11 accountable for our performance. I think that's true. 12 ACTING CHAIRPERSON RIORDAN: Are there any other 13 questions for this speaker? 14 I believe you're going to be here. But I just 15 want you to be in case -- I'm going to hold my questions 16 for later. And so I'm sure you're going to finish -- 17 MR. STEHLY: I will stay here till everyone 18 leaves. 19 (Laughter.) 20 ACTING CHAIRPERSON RIORDAN: All right. And I 21 appreciate that. 22 Lupe Valdez, Union Pacific. 23 MS. VALDEZ: Good evening. My name is Lupe 24 Valdez. I serve as the Director of Public Policy and 25 Community Affairs for Union Pacific in southern PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 194 1 California. Previously I served as a deputy executive 2 officer for the South Coast Air Quality Management 3 District and Public Affairs Administrator for MetroLink. 4 My company supports staff recommendation. We 5 urge your Board to give the staff flexibility to work out 6 implementation of the agreements without amendment or 7 delay. 8 UP committed to the MOU because it was the best 9 way for us to reduce emissions from our California yards 10 in a thoughtful, effective and consistent manner. I 11 wanted to give you an overview of what we have done to 12 implement the 1998 and 2005 MOU. I also want to explain 13 UP's commitment to engage local community representatives 14 in the implementation process. 15 In our national locomotive fleet of 8,500 16 locomotives, UP has acquired 3,674 Tier 0, 1, and 2 units, 17 including 322 Tier 2 units just since January of this 18 year, 2005. And we retired 1,300 locomotives; retrofitted 19 1,000 existing locomotives; installed automatic shutdown 20 devices on nearly 30 percent of our fleet, which is over 21 2,300. 22 Since June 24th there was a second agreement. We 23 are making progress. By the end of 2005 we will have 24 installed 30 automatic shutdown devices and 80 by June 25 2006. We've established the idling reduction and visible PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 195 1 emissions community reporting processes, that I will be 2 responsible for sharing with the affected communities; 3 started with the emissions inventory process at eight 4 designated yards; developed employee training as well as 5 coordinating with three air districts, Sacramento, Placer 6 and San Francisco Bay Area, about how to involve them in 7 the implementation process. 8 We take our responsibility to be a good neighbor 9 seriously. We can always do better. We are committed to 10 doing better. That is a big part of my job and that's why 11 I was hired to work in southern California for this. I 12 will be working with the residents in Mira Loma, building 13 on previous interactions UP has had to study the best ways 14 to identify and then reduce public health implications of 15 our operations adjacent to the high schools as well as to 16 the athletic field. 17 We are initiating work with the L.A. Harbor 18 Commission to find additional ways to reduce air 19 emissions. 20 And to the point brought up earlier, we have a 21 project that we want to expand in the port area. We are 22 not walking away from the requirements that the port is 23 looking toward us in terms of environmental mitigations. 24 That's something that's very important, and just last 25 Tuesday were before their board on this project. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 196 1 Perhaps we can be judged best by the people who 2 have worked with us most closely. Here is what the City 3 of Roseville has stated in a recent letter. 4 "The city commends the leading role that UP has 5 taken to team with Placer County Air Pollution Control 6 District to address locomotive emissions via 7 implementation of mitigation and air monitoring programs 8 to address public health risks." 9 Class 1 railroads cannot operate under a 10 patchwork of local regulation. Please reject calls to 11 amend the MOU to eliminate or alter the termination clause 12 or any other provision. 13 To reiterate, we support staff's recommendation 14 and believe any clarification can be accomplished through 15 a clarifying letter and/or implementation agreements with 16 local air districts. 17 Rail is the environmentally friendly way to move 18 goods through California and the country, and UP looks 19 forward to continuing to be a part of the solution in 20 improving air quality. 21 ACTING CHAIRPERSON RIORDAN: You did a very good 22 job, and I am very grateful. 23 Let me ask you a question, because you have a 24 very unique opportunity because of your background. And 25 do you believe that you will be given the support of the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 197 1 Union Pacific to work very closely with the South Coast 2 Air Quality District, who has, as you have heard, some 3 very serious concerns about the MOU? But because of 4 this -- I mean you obviously know how they operate, you 5 know how your railroad is operating, and you have a sense 6 of what we do. 7 How do you feel about this? 8 MS. VALDEZ: I want to quantify that by saying 9 that I only took this job because I had the support coming 10 from Omaha. I would have never undertaken the job -- I 11 live here. I live in Montebello. I know a lot about 12 railroads. I came from the commuter rail industry that 13 had a lot of issues with UP. So for me to take this role, 14 I had to be sure in my heart and in my mind that this was 15 going to be something that I could do something about and 16 effect change. And I saw that when I met with officials. 17 I went all the way up to the Chair of the Board in Omaha 18 to make sure that they understood that I wanted to be a 19 change agent and work differently with communities, 20 particularly the communities, in my case -- not just 21 Latino communities. But that is a lot of what we have 22 here in southern California with language concerns and 23 language concerns and language barriers. Along with other 24 communities of color. I don't want to say that's the only 25 one. But that's the one that I know the best. And that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 198 1 was why I took it on. 2 ACTING CHAIRPERSON RIORDAN: So you do have their 3 support? 4 MS. VALDEZ: I do have that. 5 ACTING CHAIRPERSON RIORDAN: All right. Other 6 questions for the speaker? 7 There are none at this time. 8 Thank you very much. 9 MR. BARR: Michael Barr for the Association of 10 American Railroads. 11 AAR's members are vitally interested in 12 maintaining and growing our national rail network. And 13 that's why uniform preemptive federal regulation is so 14 important to us nationwide. 15 AAR's members also work with states to achieve 16 their environmental goals. And that's why the UP and the 17 BNSF worked with ARB and EPA to develop the unique 1998 18 rail MOU and also to obtain EPA approval of the NOx 19 reductions in the California SIP. 20 The June 24th agreement also establishes a truly 21 remarkable public-private partnership in the entire State 22 of California. The national association supports it and 23 urges you to approve the ARB staff recommendation. 24 The UP and the BNSF have already invested 25 substantial resources in implementing the June 24th PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 199 1 agreement. So has ARB, so have some communities. It's 2 already providing real benefits and it will provide more 3 benefits statewide. 4 It cannot be rescinded and later somehow 5 resuscitated. But it can be improved as it is being 6 implemented. That's why AAR also supports the staff 7 recommendation to clarify the MOU, report back to you, and 8 assess the stakeholder outreach effort. 9 Now, the South Coast hired three lawyers and says 10 that they say ARB could adopt the June 24th agreement by 11 regulation. But we read their letters and discovered that 12 they do not say that ARB or any district could adopt the 13 MOU by rule. In particular, all three of them say that 14 ARB could not adopt Program Element No. 1 requiring idling 15 retrofit controls. And that's what we've got on our first 16 blue chart in line number one. 17 "Can you do it? No, no, no." 18 Two of them suggest cutting out the idling 19 technology mandate out of that element. But that would 20 completely eliminate a major technology achievement of the 21 June 24th agreement and would not achieve its goals. 22 Justice Reynoso did not analyze the fuel or smoke 23 elements. And Waxman and Nawi disagreed with each other 24 on those elements. 25 By contrast, your legal staff very thoroughly and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 200 1 consistently analyzed all the issues raised by the 2 district and concluded that key elements of the June 24th 3 agreement are federally preempted under one or more 4 federal laws. We agree with ARB staff's legal conclusions 5 and provide further legal grounds from the Association 6 letter before you today. We also agree that we should be 7 avoiding litigation if we at all can. 8 Now, AAR and its members cannot agree to a 9 patchwork of different controls. And they certainly can't 10 agree to multiple requirements in a single district. 11 That's why the release clause is in there and must remain. 12 We look forward to working with ARB to clarify 13 the releases needed. In particular, I can say tonight 14 that the release is not intended to restrict the ability 15 of agencies in California to obtain the best controls on 16 new rail yards or new facilities in rail yards. We can 17 easily clarify that. 18 The program elements of the June 24th agreement 19 provide major benefits statewide. They're on schedule. 20 They're reached in good faith. And we urge your Board to 21 support them tonight. 22 Thank you. 23 ACTING CHAIRPERSON RIORDAN: Thank you, Mr. Barr. 24 Are there any questions for this particular 25 witness? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 201 1 Thank you. 2 Mr. Marckwald. 3 MR. MARCKWALD: Good evening. My name is Kirk 4 Marckwald and I'm representing the California Rail 5 Industry this evening. We appreciate very much the 6 opportunity to testify. 7 We support the staff's recommendation to clarify 8 and then bring back to the Board the implementation of the 9 MOU. It would give you an opportunity to look at 10 implementation agreements, give you an opportunity to hear 11 again from air districts and from community groups as to 12 how the implementation is going. And at that point you 13 would have before you the full range of options that you 14 chose to employ. 15 First, we circulated to the Board a set of 16 letters that may not have caught up to you. Some of them 17 came at the very last moment. So we did put them in 18 together in one packet, and I know you have that. 19 One thing I would call your attention to is about 20 halfway into that packet there is a bipartisan state 21 legislative letter. It's signed by 24 members of the 22 Legislature. About 50 percent of them represent counties 23 or jurisdictions in the South Coast Air Quality Management 24 District. There are 20 Assemblypersons and 4 Senators. 25 There are 20 Republicans and 4 Democrats on the letter. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 202 1 It's a broad expression of support in the Legislature that 2 this MOU should go forward as the staff has proposed. 3 There are also in there letters from cities, 4 mayors, locomotive manufacturers, chambers of commerce, 5 the Port of Oakland, and others, all supporting the MOU. 6 Secondly, I want to draw your attention to the 7 second blue chart that came around with our packet. What 8 I did is I looked at recent materials of the -- an 9 excellent piece of work that was done by the NRDC and the 10 Clean Air Coalition a couple of years ago called Harboring 11 Pollution, and one that was recently released by the 12 Pacific Institute and the West County Toxics Coalition. 13 What they did -- and I looked through this report and 14 pulled out everywhere they talked about rail and what 15 should be done for rail. And that's in the column that -- 16 the first column is what the NRDC said, second is what the 17 Pacific Institute said, and the third is my assessment of 18 what the MOU does and how the MOU addresses it. And I 19 think it's a substantial signal that this MOU is in the 20 right direction in the way these groups were looking at it 21 earlier. 22 One other thing I wanted to call to your 23 attention from a contextual standpoint is also in 24 Harboring Pollution, quoting the federal study that has 25 been done, transferring freight from today's average truck PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 203 1 lead to rail would reduce NOx, CO, PM and VOC emissions. 2 And that pollution reduction's going to be realized in 3 even greater rates as more freight is transferred in the 4 future. NOx emission rates measured in grams permitted 5 per ton mile are three times as high for long-distance 6 freight trucks as double-stack trains. EM emissions can 7 be as much as ten times higher for trucks as for rail. 8 And the release of VOCs from trucks can be an astonishing 9 17 times as the rate for rail. 10 So from a context standpoint, this is the 11 backdrop within which you're evaluating the opportunity to 12 get reductions from this -- from current rail operations 13 and to set the stage in the future -- to the extent we 14 have a successful implementation of the interim MOU, it 15 sets the stage to get even more reductions, which will 16 complement the reductions that are already underway from 17 the 1998 MOU. 18 So we appreciate your efforts. We think staying 19 the course on the MOU will give you the opportunity to see 20 how it works, will give you the opportunity to call us 21 back and take any range of options that will then be 22 before you. But if you pull the plug now, we'll never get 23 the opportunity to have these reductions that are so 24 sorely needed. 25 ACTING CHAIRPERSON RIORDAN: Thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 204 1 MR. MARCKWALD: Thank you. 2 ACTING CHAIRPERSON RIORDAN: Okay. Jalene 3 Forbis. 4 And then, Jalene, before you speak let me call 5 Julie Gholson to be prepared to speak following Jalene. 6 Marlene Grossman and Karen Dzienkowski. 7 I probably did not pronounce that well at all. 8 But if you would come forward please, followed by Barbara 9 Lee. 10 So if you all would be ready. 11 Jalene. 12 MS. FORBIS: Yes, my name is Jalene Forbis. I'm 13 with the California Short Line Railroad Association. I 14 want to thank you for this opportunity to come and speak 15 in favor of the staff's recommendations of implementing 16 the MOU. This is a common-sense approach to reducing the 17 particulate matter and the NOx emissions statewide. 18 We fully support the railroad industry in this. 19 And it helps benefit us down the road. What I represent 20 is the short lines, which is the smaller businesses in the 21 industry. And actually I would argue that this actually 22 increases even more than the 20 percent stated, because 23 those of us that are in the short line industry benefit 24 from these cleaner burning locomotives being passed down 25 to us in a way that we can utilize them down the road as PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 205 1 well, and that most of us have much older. 2 So we think this is an opportunity for the 3 industry to clean up even more and help out in some other 4 air districts as well. 5 I think that this open relationship with the 6 staff at bringing us to the table, this MOU in '98 has 7 been very helpful in reducing it. I think those that have 8 been participating in that realize that the release clause 9 didn't need to be used before because it was done in good 10 faith, it's done good business practice. All of us want 11 to see cleaner air. Most of us have employees that work 12 in these air districts. And we all want to see that 13 happen. And I think that it has to be coupled hand in 14 hand with good business practices as well to make sure 15 that we can continue on in the future. 16 And it's our goal to reduce these emissions and 17 continue to be a viable business so that we can continue 18 to move the freight more efficiently, as that needs to be 19 happen. 20 And with that, I'm not going to take up all my 21 time, but I do thank you for this opportunity. 22 ACTING CHAIRPERSON RIORDAN: Well, and I 23 appreciate your being here to testify. 24 Are there any questions for this speaker? 25 Thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 206 1 Karen -- no, it's Julie first. I'm sorry. 2 Is Julie here? I apologize, I apologize. 3 I don't think she is. 4 Karen, it is going to be you. And please 5 pronounce your name for me. 6 MS. DZIENKOWSKI: I will. 7 Good evening, Madam Chair and members of the 8 Board. I'm Karen Dzienkowski, Manager of Emissions for 9 Railpower Hybrid Technologies Corporation. 10 Railpower has developed and manufactures the 11 Green Goat and ultra-clean hybrid technology locomotive 12 that does not idle or generate significant noise during 13 operation. 14 The Green Goat also reduces particulate and NOx 15 emissions by 70 to 90 percent. And we're confident that 16 our technology will play a critical role in reducing 17 switcher emissions across the State of California. 18 Railpower supports this memorandum of 19 understanding entered into by the Air Resources Board, the 20 Union Pacific, and the Burlington Northern Santa Fe 21 Railway Company. 22 We strongly urge the Board to uphold the MOU. 23 Specifically the MOU will conduct health risk assessments 24 at 16 Class 1 yards across the state and identify 25 additional measures to reduce air emissions. We expect PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 207 1 these additional measures will spur deployment of our 2 ultra-clean technology locomotives around the state, just 3 as the NOx MOU written in 1998 spurred the development of 4 our ultra-low emitting locomotives. Currently 17 of these 5 locomotives are deployed or scheduled for deployment 6 across the State of California. 7 The MOU will also limit nonessential idling by 8 installing idle-reduction devices within the next three 9 years and ensure that 99 percent of all Class 1 10 locomotives operating in California pass smoke 11 inspections, and serves to quickly identify and repair 12 smoking locomotives. 13 The MOU will also require at least 80 percent of 14 the fuel used by Class 1 locomotives in California by 15 January 1, 2007, be low sulfur fuel. This is six years 16 ahead of the federal requirement. 17 Railpower believes in voluntary agreements such 18 as this MOU. And they are an important way for federally 19 preempted industries and the state to achieve mutually 20 beneficial goals. With this key tool the state will 21 generate tangible environmental and social improvements. 22 Additionally the release clause is essential to 23 ensure uniform statewide regulation and to avoid patchwork 24 of regulations that could discourage the use of rail by 25 creating barriers to efficient operations. One PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 208 1 double-stack train replaces up to 280 trucks. 2 Rail is the most environmentally sound way to 3 move goods and is a key component of the goods movement 4 system within California. Railpower supports ARB's 5 efforts to ensure efficient environmentally sound 6 transportation of goods and we recommend that the -- we 7 ask that the Board uphold the MOU and continue to achieve 8 emission reductions across the State of California now. 9 Thanks very much. 10 ACTING CHAIRPERSON RIORDAN: Thank you very much. 11 I have just one question. I'm sorry, my 12 attention sort of was to something else. 13 Do you actually have your technology working in 14 California right now? 15 MS. DZIENKOWSKI: Yes, we do. Both the 16 Burlington Northern Santa Fe Railway and the UP have our 17 technology. 18 ACTING CHAIRPERSON RIORDAN: Okay. And is there 19 a specific location where they're functioning, your 20 hybrid -- 21 MS. DZIENKOWSKI: We have several units in the 22 South Coast area. Some of those have -- 23 ACTING CHAIRPERSON RIORDAN: Like in switching 24 yards? 25 MS. DZIENKOWSKI: They're all -- our locomotives PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 209 1 are switcher locomotives -- 2 ACTING CHAIRPERSON RIORDAN: All switchers. 3 MS. DZIENKOWSKI: -- and they operate in yards. 4 We do have some that do short haul as well. But no line 5 haul locomotives. So they're all -- all the emission 6 reductions that are achieved do immediately benefit the 7 surrounding communities. 8 ACTING CHAIRPERSON RIORDAN: Very good. Thank 9 you very much. 10 Any questions for this person? 11 All right. Thank you. 12 Barbara Lee. 13 And then let me -- Barbara, before you begin let 14 me call to get ready here James Provenzano, Candice Kim, 15 T.L. Garrett, Rudy Vietmeier and Melissa Lin Perrella. 16 Okay, Barbara. 17 MS. LEE: Good evening, Madam Chair, members of 18 the Board. My name is Barbara Lee. I'm the Air Pollution 19 Control Officer for the Northern Sonoma County Air 20 Pollution Control District. I am also a co-chair of the 21 California Environmental Protection Agency's Advisory 22 Committee on Environmental Justice. And I am the incoming 23 president for the California Air Pollution Control 24 Officers Association. 25 I am here on behalf of the 35 air districts in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 210 1 CAPCOA to present testimony to you on the railroad MOU. 2 Many of our members are APCOs who wanted to be 3 here but were unable to attend because this meeting 4 unfortunately conflicts with our annual membership meeting 5 that was scheduled a year ago. 6 I need to begin my testimony by clarifying two 7 pieces of information that were presented -- or not 8 presented in the staff report. 9 First, I need to point out that the staff report 10 references legislation that was brought forward this year 11 on the subject of railroads. Unfortunately it, through an 12 oversight, did not include reference to the legislation 13 sponsored by CAPCOA and carried by Assembly Member Jenny 14 Oropeza who you heard a letter from regarding risk 15 reduction -- risk assessment and risk reduction at rail 16 yards statewide through a consistent program implemented 17 in cooperation between the ARB, the Office of 18 Environmental Health Hazard Assessment, and the air 19 districts, a program that has been in place and successful 20 with tens of thousands of sites for almost 20 years. 21 I also need to clarify that the staff report 22 indicates that CAPCOA's position on the MOU is conditional 23 support. We believe this is based on our stated 24 willingness to work with ARB on implementation in spite of 25 our very significant concerns and provided the release PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 211 1 clause is removed or substantially altered. 2 I want to be very clear that our association does 3 not characterize our position as supportive. The CAPCOA 4 board engaged in a very animated and thorough debate about 5 this MOU on more than one occasion, and concluded that 6 there were three significant areas that we have concerns 7 about. We communicated those in a letter to Ms. 8 Witherspoon. I believe it's in your packet. And I want 9 to make clear a couple of points about that. 10 Our letter states that we cannot support the 11 process by which this MOU came forward. And we believe 12 that's critically important because this MOU is acting in 13 lieu of regulation and potentially chilling the 14 possibility of other regulation. The public process is 15 critical. 16 In addition, we found that the terms are broadly 17 unenforceable and the districts will be called upon to 18 help enforce them. Those need to be altered and 19 clarified. 20 And, finally, as I said, we have complete and 21 unambiguous opposition to the structure of the release 22 clause because of the practical barriers it seeks to 23 create against the reasonable exercise of local authority 24 and responsibility. This was a unanimous position of our 25 board and it has the support of our membership. I wanted PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 212 1 to make sure that you understood that. 2 ACTING CHAIRPERSON RIORDAN: Okay. Thank you, 3 Barbara. 4 Mayor Loveridge. 5 BOARD MEMBER LOVERIDGE: You mentioned the 6 release clause and an alternative -- or do you have an 7 alternative proposal for the release clause, rather than 8 either yes or no, something in between? 9 MS. LEE: We strongly feel that the release 10 clause should be removed. I believe our members could 11 contemplate an altering of the release clause. An 12 altering of the release clause that solves the problem for 13 only the South Coast Air District would be problematic for 14 many of our members who have programs under way or believe 15 there would be issues with programs they are in the 16 process of bringing forward. 17 That said, I believe that the release clause 18 could be renegotiated, could be narrowed, could be altered 19 in such a way that it clearly would not be used in a way 20 that would prevent local jurisdictions from exercising 21 their reasonable and necessary obligations under 22 California statutes. 23 ACTING CHAIRPERSON RIORDAN: Thank you. 24 Yes, Dr. Gong. 25 BOARD MEMBER GONG: Yes. Did CAPCOA have any PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 213 1 views about federal -- preemption? I'm losing it. 2 MS. LEE: -- preemption issue. 3 BOARD MEMBER GONG: My coffee level is going 4 down. 5 (Laughter.) 6 ACTING CHAIRPERSON RIORDAN: Get this man coffee. 7 MS. LEE: Let me be clear. There are 35 members 8 in CAPCOA and there are a range of opinions about many 9 elements of the MOU. The three that we expressed a 10 position on were the three on which we had consensus. 11 The districts each have their own counsel. When 12 you have the counsel for that many agencies reviewing 13 legal language, you do not get agreement as to what it 14 means. 15 However, I think that it is safe to say that, 16 generally speaking, as policy movers in this arena and as 17 enforcers of regulations, the air districts lean towards 18 interpretations that provide the broadest authority to 19 move ahead with environmental regulation in the public 20 good. And where there is a gray zone would lean towards 21 authority rather than preemption. And we understand that 22 there are a range of opinions among our members. But to 23 the extent that there are districts that feel strongly 24 about exercising their authority, we feel very, very 25 strongly that a negotiated agreement without public input PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 214 1 should not be a vehicle to prevent the exercise of that 2 authority. 3 ACTING CHAIRPERSON RIORDAN: Any other questions? 4 Thank you very much. 5 James Provenzano. 6 MR. PROVENZANO: Madam Chair, members of the 7 Board. I'm James Provenzano, President of Clean Air Now. 8 Clean Air Now is a 36 year old public advocacy 9 organization. And in that time I cannot think of one 10 issue that we disagreed with the Board on, except this 11 one, entering into the MOU with the railroads operating in 12 the State of California. 13 Our primary concern is that the South Coast Air 14 Quality Management District retains ability to implement 15 and oversee more stringent controls of yards as needed in 16 the South Coast Air Basin. The district is currently 17 proposing such rules to effect cleaner air. The, quote, 18 poison pill provision of the MOU will undermine these 19 actions by allowing the railroads to opt out if the SCAQMD 20 passes rules not covered in the MOU. 21 Another major concern is that the regulation is 22 binding. 23 Another major concern is that regulation is 24 binding, whereas the MOU depends on the good faith 25 cooperation between the parties. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 215 1 We agree with the issues raised by the 2 district -- the South Coast Air Quality Management 3 District -- regarding the vagueness of language and lack 4 of specificity throughout the MOU, with does not set 5 limits -- emission limits or date requirements to meet 6 those limits. 7 We feel there should be specific regulations for 8 yard locomotives, diesel support equipment, and auxiliary 9 power units for refrigerator cars. 10 Idling limits should also be included in any 11 agreement or regulation, as this will help reduce 12 emissions and fuel costs. 13 As a citizens advocacy organization, we feel that 14 the MOU does not go far enough to protect the health of 15 the residents of southern California. Throughout the 16 document there are examples of weakening of current or 17 proposed regulations in time allowed for compliance, 18 penalties assessed, and public access to the process. One 19 example is the section on visible emission reduction and 20 repair program, which has weaker provisions than those 21 currently applied in the South Coast Air Quality 22 Management District. 23 We recommend to the Board that you consider 24 delaying the implementation of the MOU and work with the 25 South Coast Air Quality Management District, other air PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 216 1 districts in the state, the public and other interested 2 groups in open public meetings to address the concerns 3 raised in this and earlier hearings on this subject. 4 Thank you for your time. 5 ACTING CHAIRPERSON RIORDAN: Thank you very much. 6 Are there any questions for this witness? 7 BOARD MEMBER BERG: I just have a question for 8 staff. 9 ACTING CHAIRPERSON RIORDAN: Yes, Ms. Berg. 10 Thank you. 11 BOARD MEMBER BERG: Is the visible and repair 12 on -- that South Coast Air Quality has, is that in 13 existence right now? 14 DEPUTY EXECUTIVE OFFICER SCHEIBLE: They had a 15 negotiated agreement that was in existence for a while. 16 Our understanding now is that that time has lapsed on that 17 agreement. 18 And also to clarify, we were -- we thought we 19 were clear in the agreement that when it came to enforcing 20 opacity violations against an individual locomotive, that 21 the agreement is silent on that because we wanted existing 22 authority under state law or local regulations to be 23 preserved. So we don't view it as interfering at all with 24 the South Coast or any other districts or the ARB's 25 ability to cite individual locomotives for opacity PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 217 1 standards. 2 EXECUTIVE OFFICER WITHERSPOON: What happened is 3 that the district had brought opacity violations. The 4 railroads asserted that those were preempt, but in the end 5 negotiated an agreement over how such enforcement issues 6 would be handled for a period of five years. And when the 7 agreement lapsed, they went back to their corners and 8 said, "We maintain still that it's preempted." 9 So when we discussed visible emissions in our 10 agreement we stepped around and tried not to prejudice 11 either party but to come to a fresh agreement between 12 ourselves and the railroads on how we would like to handle 13 excessive smoke. 14 BOARD MEMBER BERG: Thank you. 15 ACTING CHAIRPERSON RIORDAN: I'm looking at this 16 lady who looks like she wants to say something, but I'm 17 not sure it's -- are you signed up to speak? 18 MS. COY: No. I'm Carol Coy, Deputy Executive 19 Officer at South Coast AQMD. And I can answer that 20 question as well. 21 ACTING CHAIRPERSON RIORDAN: All right. I'll 22 allow that because it might go to -- 23 MS. COY: I'm responsible for engineering and 24 compliance at South Coast Air Quality. My name is Carol 25 Coy, Deputy Executive Officer. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 218 1 The settlement agreements that we've been 2 referring to have indeed lapsed. However, the testimony 3 of district staff referred to all of the implementation 4 that had been put into place and was very successful in 5 the field and is more stringent than proposed here. And, 6 in fact, one railroad, the Union Pacific line, has 7 continued to voluntarily follow those inspection and 8 maintenance procedures and continue to report to the South 9 Coast District. And they've been very effective. The 10 settlement agreement procedures have been very effective 11 in increasing that rail line's compliance with our opacity 12 standards. 13 In addition, the penalty portions have been in 14 effect that Peter Mieras' office has continued to impose 15 on violations. 16 ACTING CHAIRPERSON RIORDAN: Thank you for that 17 clarification. 18 Okay. Back to Candice Kim and T.L. Garrett, Rudy 19 Vietmeier, and Melissa Lin Perrella. 20 MS. KIM: Good evening. 21 Hello. My name is Candice Kim. I'm here on 22 behalf of the Coalition for Clean Air and its members 23 throughout the state. 24 I'm here to request that the Board rescind the 25 MOU, given that ARB staff negotiated this agreement with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 219 1 the railroads in a wholly unacceptable manner, without 2 participation or input from the public, government 3 agencies or even the ARB's own governing board; given that 4 neither environmental organizations nor members of 5 directly impacted communities had the opportunity to 6 comment on how to form the terms of the MOU; given that if 7 this MOU enters into effect as it is written it will 8 significantly impact the ability to enforce critical air 9 quality measures regarding railroads. For these reasons 10 anything less than a full rescission of this wrongful 11 agreement would be unacceptable. 12 The Air Resources Board must be accountable to 13 the public. And a decision to enter into an agreement 14 negotiated without any public participation, behind closed 15 doors, is both a great disservice and a great dishonor to 16 impacted communities who seek enforceable regulations that 17 will provide measurable results. 18 In closing. There is no baby in this bath water. 19 I urge you to fully rescind the MOU and decrease the ARB's 20 troubling reliance on voluntary MOUs in lieu of tough and 21 mandatory regulations. 22 Thank you. 23 (Applause.) 24 ACTING CHAIRPERSON RIORDAN: Thank you very much. 25 T.L. Garrett. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 220 1 MR. GARRETT: Good evening. Thank you for the 2 opportunity to give testimony on this important issue. I 3 am T.L. Garrett. I represent the Pacific Merchant 4 Shipping Association. And we represent the shipping lines 5 and the terminal operators that bring in 90 percent of the 6 cargo -- containerized cargo to the West Coast of the U.S. 7 I'm here to speak in support of the MOU and all 8 of the staff recommendations. 9 I've been here all day listening to the 10 arguments: The preemption argument, that I hear as 11 litigation; the patchwork, which we also as an industry 12 are very concerned about having separate regulations and 13 legislation everywhere that you go, throughout the world 14 in our case; and also the process questions. And it's 15 really the process question that I believe this Board has 16 already addressed in a very proactive way to make sure 17 that these sorts of issues with community outreach and 18 communication do not happen in the future. And that's 19 what I want to speak to. 20 We want to be sure that this MOU process remains 21 a tool in the quiver of the CARB staff, who have always 22 done an exceptional job of protecting public health, that 23 they have this available to them so when there are indeed 24 opportunities to do voluntary agreements that achieve 25 emission benefits sooner than they could otherwise be PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 221 1 done, without regulation, without legislation and 2 certainly without litigation, that this be available to 3 them. 4 So we're here to support the MOU process and the 5 CARB amendments to this. And we ask you to continue the 6 implementation of this MOU. 7 Thank you. 8 ACTING CHAIRPERSON RIORDAN: Thank you very much. 9 Appreciate your testimony. 10 Rudy Vietmeier. 11 Is Rudy here? 12 Melissa. 13 MS. PERRELLA: Good evening, members of the 14 Board. My name is Melissa Lin Perrella, and I'm with the 15 Natural Resources Defense Council. I'll try to be brief. 16 There's at least three compelling reasons that 17 support rescission of the MOU. First, NRDC supports the 18 legal analysis performed by AQMD outlining how ARB has the 19 authority to adopt this formal regulation as the 20 overwhelming majority, if not all, of the provisions of 21 the MOU. And we urge the agency to pursue stringent 22 regulations to reduce emissions and not private agreements 23 with industry. 24 The staff report acknowledges that ARB had the 25 authority to require health risk assessments, modeling, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 222 1 reporting and training requirements. And we strongly urge 2 the Board to refrain from adopting staff's narrow 3 interpretation of the agency's authority to adopt as 4 regulations the remaining provisions of the MOU. In fact, 5 staff's legal interpretations essentially eviscerate ARB's 6 authority over the railroads. And the Board should be 7 extremely concerned that staff's opinion can be used by 8 industry in the future for years to come as an official 9 statement by ARB that state and local governments are 10 powerless to impose restrictions on railroads. 11 Second, the Board should rescind the MOU, because 12 continued implementation of that agreement opens the 13 agency up for liability under the California Environmental 14 Quality Act, CEQA, and the Administrative Procedures Act, 15 the APA. Staff has asserted that CEQA does not apply 16 because the MOU falls within the common sense exception. 17 But to claim that exemption, ARB has to show that it is 18 certain that there is no possibility that the project can 19 cause significant environmental impacts. 20 Here that exception cannot be met because the 21 MOU's termination clause could discourage more stringent 22 regulation in future legislation, as various legislators 23 have pointed out this evening, and thus result in a growth 24 in emissions. Courts have stated that if legitimate 25 questions can be raised about whether the project might PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 223 1 have a significant impact and there is any dispute about 2 the possibility of such an impact, that agency cannot find 3 certainty that a project is exempt. 4 Further, an agency must comply with the APA when 5 its actions constitute regulations. The MOU meets the 6 legal definition of a regulation because it applies to all 7 Class 1 railroads in California and implements the 8 authority granted to ARB. 9 Further, there is absolutely no exception under 10 the APA for private agreements, as has been suggested. In 11 fact, if staff were correct that voluntary agreements can 12 never be regulations, then agencies could simply avoid 13 compliance with the APA by negotiating regulations through 14 MOUs. This simply cannot be the case. 15 Third and finally, as I think you've been hearing 16 this entire evening and will be continuing to hear for 17 hours to come, that keeping the MOU sets bad public 18 policy. To uphold the MOU would mean that the agency is 19 simply turning a blind eye to the value of open and 20 transparent public processes and any trust built between 21 this agency and the community. 22 For these reasons we urge that the Board rescind 23 the MOU. 24 ACTING CHAIRPERSON RIORDAN: Very good timing. 25 (Applause.) PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 224 1 ACTING CHAIRPERSON RIORDAN: Thank you very much 2 for your testimony. 3 Let me indicate that we are going to now go to a 4 second group: Faith Reyes; Virginia Field; Colleen 5 Callahan; Elina Green, if she is till here; Jan Misquez 6 from -- she's a Westside resident; Penny Newman; and Mayor 7 Dennis Yates. 8 If you'd all come please and be ready. 9 First speaker is Faith Reyes. 10 Is Faith here? 11 Virginia Field. 12 MS. FIELD: Thank you to the Board. Thank you 13 for letting me speak. I'm representing the Clean Air Now, 14 as did James Provenzano, so I'm not going to reiterate the 15 comments he made. So I'll just add a couple of things 16 that I'd like to say. 17 We live in Riverside -- or I live in Riverside, 18 and we have a lot of impact from railroads. And this is 19 an issue that's very -- of great concern to us out there. 20 And the one thing I thought, as you listen to 21 testimony here all day, as I've been here all day, you go 22 back and forth even just as an audience as to what the 23 arguments are saying. You know, you could be persuaded. 24 You can listen for an hour to one set of arguments and be 25 persuaded one way and another set of arguments and be PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 225 1 persuaded another way. 2 But one thing that I have come away with at this 3 point is that Mrs. Witherspoon has given you two choices, 4 to either support the MOU or not. And she's indicated 5 that renegotiation with the railroads isn't possible. And 6 that doesn't make sense to me, because it seems to me that 7 the railroad's statement is -- whether you're going to 8 call it clarification or renegotiation, it seems to me 9 there's still space to have a better agreement that would 10 be more acceptable to the people here in the audience. 11 And I think that taking the time to do that is worthwhile. 12 So I would like to see you consider that. 13 Because in my mind is bad law -- or a bad MOU in this case 14 better than a delay? Taking a little more time and 15 getting it clarified so that the public and the agencies 16 you work with all can agree or come to as close an 17 agreement as they can seems to me to be a good thing to do 18 for policy. And I hope you'll be able to try that before 19 the evening's out. 20 Thank you. 21 (Applause.) 22 ACTING CHAIRPERSON RIORDAN: Thank you, Virginia. 23 Colleen Callahan. 24 MS. CALLAHAN: Good evening, Madam Chair and 25 members of the Board. My name is Colleen Callahan. I'm PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 226 1 representing the American Lung Association of Los Angeles 2 County and of Orange County. 3 And I'm here today to request that the Governing 4 Board rescind the MOU and start the process again. The 5 American Lung Association is deeply concerned with a lack 6 of public process and input in developing an MOU with such 7 wide-ranging impacts on the health and welfare of all 8 Californians, especially those in need of environmental 9 justice that are located near the railroads. 10 These communities are experiencing the effects of 11 diesel pollution which are linked to asthma attacks, 12 increased respiratory infections, increased school 13 absences, lung cancer, and premature death. 14 Reducing diesel soot from railroads is critical 15 to improving public health. However, the MOU's provisions 16 are weak and do not move us forward as a state in 17 substantially controlling diesel emissions and meeting the 18 goal of CARB's diesel risk reduction plan. 19 The MOU is actually weaker than some former, 20 existing, and proposed district rules and regulations. We 21 are particularly concerned that the MOU contains a broad 22 termination clause that would negatively affect efforts by 23 the legislation, South Coast Air District in general and 24 others to adopt more stringent requirements to address 25 local air pollution problems. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 227 1 Despite ARB's intentions, local government bodies 2 have made it clear tonight that this MOU due to its 3 unclear implications deters -- in passing stronger and 4 more health protective measures. 5 We also agree with South Coast AQMD that the MOU 6 contains vague language and a lack of specific 7 requirements and guarantees for actual reductions in 8 diesel risk, and no risk level or risk target that would 9 trigger mandatory risk reductions. 10 So for these reasons the American Lung 11 Association of Los Angeles County and Orange County 12 believes that the MOU is fatally flawed and should be 13 abandoned. 14 Thank you for your time. 15 ACTING CHAIRPERSON RIORDAN: Thank you very much. 16 We appreciate your testimony. 17 (Applause.) 18 ACTING CHAIRPERSON RIORDAN: Elina Green? 19 Elina Green? I think she had to leave. 20 Jan Misquez. 21 MS. MISQUEZ: Good evening. My name is Jan 22 Misquez, and I live in the beautiful city of San 23 Bernardino, California. I live on the west side, and 24 we're highly impacted -- heavily impacted by the 25 Burlington Northern Rail Yard. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 228 1 I really don't understand why we're here. If the 2 railroad says that they're good neighbors, why do we need 3 all this paperwork? Why don't they stand up and do what's 4 right and do it without all this legal mumbo jumbo? 5 I have to sit and listen to my grandchildren at 6 night wheeze from asthma. We've seen the doubling and the 7 tripling in the last two years of the railroad in 8 intermodal facilities in our communities. 9 With this MOU I don't think you guys are taking 10 into consideration the doubling and tripling and 11 quadrupling in the next five years. The reductions aren't 12 going to be there. 13 We're asking that you rescind this MOU now. And 14 shame on you also for conducting this in closed door 15 session without our input. We've been working on 16 legislation for the last two years, working closely with 17 Catherine and some of your staff members. And not once 18 was this mentioned that you guys were in negotiations with 19 this MOU. 20 Shame on you. 21 (Applause.) 22 ACTING CHAIRPERSON RIORDAN: Okay. Penny Newman. 23 MS. NEWMAN: My name is Penny Newman. I come 24 from Riverside, also way out in the inland valleys. I'm 25 the Executive Director of the Center for Community Action PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 229 1 in Environmental Justice. 2 We have been working in both Riverside and San 3 Bernardino counties since 1993, and most of that time on 4 air quality issues. 5 This MOU, if we set aside even what is contained 6 in it -- because I think for most of the communities that 7 live near the rail yards who are the most heavily 8 impacted, the 20 percent that is talked about, however 9 they may calculate that, means nothing when you consider 10 the expansion of the rail yards that are going to take 11 place or predicted to take place in the next few years. 12 We really want something that is going to protect 13 our communities. We're already way behind the ball on 14 trying to provide even the modest type of health 15 protection for our families. It's not just a regional 16 issue. It is an issue of environmental justice where 17 there are people and families that are dramatically, 18 highly impacted. And they are the ones who direct me near 19 the rail yards. 20 I'd also like to clarify, that the process used 21 in establishing this MOU was not simply a matter of 22 missing a public meeting. It was not simply a matter of 23 you didn't put it in the right time, either the right 24 notice or anything else. It was a deliberate betrayal of 25 the communities who are most impacted by the railroads. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 230 1 While we were advancing legislation that we 2 brought to AQMD in order to step forward to provide real 3 protection to our communities, we sat down with staff, 4 face to face, talking about how we can make that 5 legislation fit their concerns, how can we meet that, and 6 all that time they were in the backroom with the railroads 7 negotiating behind our backs. 8 They used our bills, they used the rules being 9 presented in AQMD in order to force the railroad to the 10 table. They used us. That is why people are upset about 11 this. It was a deliberate betrayal. You have linked your 12 credibility to the railroad. And as you've heard over and 13 over again, over not only this meeting but meeting after 14 meeting, the railroad has no credibility in the 15 communities in which they operate. They lie. They turn 16 their back on the community. They are callous. They are 17 obnoxious. And now ARB, through this MOU and the way that 18 you've come about this, you have linked your credibility 19 with our communities directly with them. 20 Your actions tonight will tell us whether we can 21 trust you any further. This is a critical vote. It is 22 not one that is just a drop dead, we'll never make any 23 reductions in air quality. I think we can go back and, 24 working together, make the railroad do the things that 25 they could do in this MOU voluntarily. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 231 1 I think we can get more out of them. We deserve 2 more out of them than we're getting. And I urge you very 3 strongly, for your own credibility in this agency, for the 4 protection of our health, our true protection of our 5 health, that you rescind this MOU and let's start again. 6 Thank you. 7 (Applause.) 8 ACTING CHAIRPERSON RIORDAN: Mayor Yates. 9 MAYOR YATES: Madam Chairman, Board members. My 10 name is Dennis Yates. I'm the Mayor of the City of Chino. 11 And also I'm a representative of the San Bernardino County 12 cities, representing them on the Governing Board of the 13 South Coast Air Quality Management District. 14 I have a prepared speech that staff gave me. And 15 I guess it's nice, but it's pretty repetitive of all the 16 folks that have come up prior to me opposing this MOU. So 17 I won't -- 18 ACTING CHAIRPERSON RIORDAN: I'm sure you can put 19 it in your own words. 20 MAYOR YATES: Yes, ma'am, I can, being an elected 21 person that I am. 22 (Laughter.) 23 MAYOR YATES: I do believe in MOUs. MOUs, I deal 24 with them in my business every day. And when I have to 25 take somebody to the court because they'd signed an MOU, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 232 1 the judge laughs at me and throws me out the door. 2 All an MOU really is is an agreement between two 3 gentlemen. And in this particular case there's only one 4 gentleman; that would be the ARB. 5 I'm a firm believer in rules and regulations and 6 legislation to force, if we have to, industries to not to 7 be polluting our air. 8 I have two rail spurs in the cities I represent, 9 Colton and San Bernardino. I'm under the understanding 10 that the railroads are requesting that they expand one of 11 the spurs there. And I will be out protesting if they try 12 to, just like these folks in the back -- 13 (Applause.) 14 MR. YATES: -- if they try to do that and don't 15 mitigate the pollution that they're causing. 16 I have a question for this Board -- or two 17 questions actually, Madam, if I might ask them. 18 ACTING CHAIRPERSON RIORDAN: Well, we'll listen. 19 We may not respond, but we'll certainly listen. 20 MAYOR YATES: I understand. 21 Well, my constituents have asked me: Were any of 22 the Board members aware that staff was meeting behind 23 closed doors to come up with this MOU? First question. 24 ACTING CHAIRPERSON RIORDAN: Go ahead. Finish -- 25 MAYOR YATES: The second question is: If you PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 233 1 were not aware of it, have you taken any disciplinary 2 action for those people responsible for doing it? 3 I am an elected official for 13 years. And if 4 any of my staff would have done something like this, they 5 would have been out the door before anybody could shake 6 their head. 7 That's my two questions. 8 (Applause.) 9 ACTING CHAIRPERSON RIORDAN: I'll wait till 10 you're finished. 11 MAYOR YATES: I'm finished. 12 ACTING CHAIRPERSON RIORDAN: Oh, you are 13 finished? 14 MAYOR YATES: Yes ma'am. 15 ACTING CHAIRPERSON RIORDAN: Oh, I'm sorry. 16 Yes, we knew that there was conversation going 17 along on -- and in fact we had I believe a brief report in 18 what, February of 2005. And so, to be very honest with 19 you, we had and we still believe that we have a very good 20 memorandum of understanding that is part of a process that 21 was back in 1998. And we have no reason to not believe 22 that this could be equally as good. 23 So it is a way. It is not the first MOU that we 24 have ever had. We have a number of MOUs and we use them. 25 MAYOR YATES: Were they all behind closed PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 234 1 doors -- 2 ACTING CHAIRPERSON RIORDAN: No. And we're 3 not -- we're not going to debate. Okay? I'm responding 4 to your questions. 5 Now, let me ask the Board members, if you have 6 any questions for this speaker? 7 Thank you very much. 8 MAYOR YATES: Thank you. 9 (Applause.) 10 ACTING CHAIRPERSON RIORDAN: Let me indicate to 11 you -- oh, just -- I forget, and I apologize. Our court 12 reporter is a quite, silent man. And he needs a bit of a 13 break. You can imagine. He's been reporting now for two 14 hours. 15 So let's take a ten-minute break. We'll come 16 back at 5 after 8. 17 (Thereupon a recess was taken.) 18 ACTING CHAIRPERSON RIORDAN: Ladies and 19 gentlemen, if you could find your seats please. I'd like 20 to go back to the meeting. 21 And I would invite my colleagues to join me. 22 All right. Is Bea LaPisto-Kirtley here? 23 MAYOR LaPISTO-KIRTLEY: Yes. 24 ACTING CHAIRPERSON RIORDAN: Margarita Holguin, 25 James Flournoy, Marisela Knott, and Madeline Clarke, if PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 235 1 you'd all be ready over here. 2 Let's see if we've got everybody. 3 Bea? You're there. Good. Okay. 4 Ladies and gentlemen, I'd ask that you take your 5 seats please. 6 And, Bea, you may begin. 7 MAYOR LaPISTO-KIRTLEY: Thank you. 8 Madam Chair and members of the Board. My name is 9 Bea LaPisto-Kirtley. I am the Mayor of the City of 10 Bradbury and the Los Angeles County Eastern Cities 11 representative on the Governing Board for the South Coast 12 AQMD. 13 I want to thank the California Air Resources 14 Board for holding this public hearing on the memorandum of 15 understanding with the railroads and also for holding the 16 two other MOU public workshops meetings in August in 17 Sacramento and in the City of Commerce. This kind of open 18 government is what the public expects. They expect that 19 from us as government officials, to abide by open 20 government. 21 As has already been addressed in previous 22 testimony given at both those public workshops, there are 23 many areas of concern that the public and AQMD have 24 identified in the MOU agreement. I would like to discuss 25 a few key concerns with you this evening. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 236 1 Your legal staff believes that it does not have 2 the authority to regulate locomotive emissions because it 3 is preempted by federal law and, thus, is very limited in 4 what it can do to regulate locomotives and rail yards. 5 Your staff believes this agreement was the most preferable 6 course of action. As an elected official, who is 7 regularly involved in setting public policy within the 8 constructs of the law, I have to completely disagree with 9 your lawyers. 10 Some of the top independent legal minds in the 11 state and the country took a look at the MOU and strongly 12 disagreed with your legal staff. They believe that the 13 Clean Air Act would pose few, if any, preemption 14 obstacles. You already have heard from some of them today 15 at your meeting. 16 I would like to point out to you that these legal 17 experts believe that the ARB and local districts both have 18 the authority to adopt regulatory requirements that would 19 achieve all of the goals of the MOU, and these regulations 20 would be neither federally preempted nor constitutionally 21 barred. 22 You have other options rather than using this 23 MOU. 24 I would urge the CARB Board to follow your 25 agency's long-standing tradition to pursue regulations and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 237 1 other means of control in spite of litigation threats by 2 polluting industries, such as the railroad. Stand up for 3 public health and making sure that industry bears its fair 4 share of cleaning up the air. 5 Your Board recently adopted CO2 emission 6 standards for automobiles in spite of threats. There are 7 numerous other examples. Please don't switch direction 8 today. 9 Because of -- 10 ACTING CHAIRPERSON RIORDAN: Thank you. We 11 need -- I need a concluding statement -- sentence. 12 MAYOR LaPISTO-KIRTLEY: Okay. And I'm right 13 there. 14 ACTING CHAIRPERSON RIORDAN: All right. 15 MAYOR LaPISTO-KIRTLEY: Because of the many 16 deficiencies in the MOU, some of which I just mentioned, 17 your Board needs to carefully consider rescinding the MOU 18 and moving forward to support more stringent legislation 19 and rules. 20 The AQ -- 21 ACTING CHAIRPERSON RIORDAN: Thank you. That's 22 going to be -- 23 MAYOR LaPISTO-KIRTLEY: Okay. Thank you very 24 much for the opportunity. 25 ACTING CHAIRPERSON RIORDAN: Thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 238 1 (Applause.) 2 Yes. 3 BOARD MEMBER GONG: Question. 4 ACTING CHAIRPERSON RIORDAN: There's a question. 5 I'm sorry, Bea. 6 Bea, I'm sorry. Dr. Gong has a question. 7 BOARD MEMBER GONG: Similar to what I asked some 8 other elected officials, legislators -- I think you and 9 also I think Mayor Yates impressed me -- 10 MAYOR LaPISTO-KIRTLEY: He's the big, tall guy. 11 BOARD MEMBER GONG: I can't miss him. 12 But both of you impressed me. And I must say 13 that given your energy and zeal for this, is there 14 anything to prevent you from going ahead and pushing for 15 separate legislation, go after the railroads yourselves or 16 with AQMD? 17 MAYOR LaPISTO-KIRTLEY: You know what, we have -- 18 we have been doing that, we are doing it, and we will 19 continue to do it. 20 BOARD MEMBER GONG: Okay. So it's not a 21 detriment, it's not an inhibitor to you, is it, the MOU? 22 MAYOR LaPISTO-KIRTLEY: Yes. 23 BOARD MEMBER GONG: Yes what? 24 MAYOR LaPISTO-KIRTLEY: Yes, because if we adopt 25 any kind of regulations, that releases the railroads from PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 239 1 their obligation -- from the MOU. I mean it's really kind 2 of a smoke screen. 3 BOARD MEMBER GONG: Okay. So what? I mean, 4 okay, if they walk away, then you got your -- no MOU. Am 5 I right or wrong? 6 MAYOR LaPISTO-KIRTLEY: What's happening -- if I 7 would have been able to conclude my remarks -- what's 8 happening is that the South Coast Air Quality Management 9 District, along with the other air districts, and CARB 10 want to be able to work together. You're sending the 11 wrong message. You're coming up with a separate MOU in 12 spite of the regulations that we're trying to pass. And 13 what's happening is the railroads are in between. So 14 they're playing one against the other because you're 15 letting them do that. The people in the South Coast are 16 not seeing a unified state agency with southern 17 California, with you trying to be -- help us and be part 18 of the solution in cleaning up the air. They're not 19 seeing anyone united. They're seeing us trying to fight 20 the railroads. They're seeing that you're supporting the 21 railroads. That's the problem. 22 (Applause.) 23 ACTING CHAIRPERSON RIORDAN: Margarita Holguin. 24 MS. HOLGUIN: My name is Margarita Holguin. And 25 I live about a few steps down from the Union Pacific and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 240 1 the 710 freeway. And I've been living there for about 50 2 years, but before it was Commerce. And then now I have 3 been going -- about the past seven years I've been going 4 to the doctors and I have been sick with cancer in my lung 5 and then in my colon and then in my -- right here in my 6 chest and then my breast. 7 And I would like to move away from there, but I 8 live alone. My husband is in the hospital now because he 9 has lung trouble too. And I don't want to move away from 10 there. But I would like for you guys to help us with the 11 Union Pacific, because they too -- they make a lot of 12 noise too. We can't sleep. And then on the freeway, the 13 trucks and everything. And there's always pollution in 14 there. 15 You water the front yard and there's nothing but 16 black dirt. Inside my house too. 17 You mention all of our lungs, and we are carrying 18 it, all that kind -- cancer and everything, and it's bad. 19 I've been going to a lot of meetings concerning 20 this. And we don't have any help, no help at all. 21 So I just want to say if you guys could help us, 22 because it's getting worse and worse, everything. All my 23 neighbors have died about cancer too, where I live next 24 door, on the other side and down the street. And it's 25 bad. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 241 1 ACTING CHAIRPERSON RIORDAN: Well, we appreciate 2 the fact that you're here and that you've testified. And 3 let me ask you, so I can be very specific: Do you live in 4 the City of Commerce? 5 MS. HOLGUIN: Yes, I live in the City of 6 Commerce. I live on 2315 Connor. That's about a few 7 steps from the Union Pacific and up in the freeway -- 710 8 freeway. 9 ACTING CHAIRPERSON RIORDAN: Thank you very much. 10 MS. HOLGUIN: Thank you. I'm sorry. 11 ACTING CHAIRPERSON RIORDAN: I hope you're 12 feeling better. 13 (Applause.) 14 ACTING CHAIRPERSON RIORDAN: James Flournoy. 15 BOARD MEMBER LOVERIDGE: Madam Chair, could I 16 just -- 17 ACTING CHAIRPERSON RIORDAN: Yes. 18 BOARD MEMBER LOVERIDGE: One of the questions 19 during the break was how many names are on the list. I 20 thought it might be helpful for the audience to know. 21 How many more speakers do we have? 22 ACTING CHAIRPERSON RIORDAN: Gosh, we have at 23 least another full page and -- let's see, what is a full 24 page? -- of at least -- probably about 25 more speakers, 25 Mayor. So be patient. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 242 1 (Laughter.) 2 BOARD MEMBER LOVERIDGE: Public information. 3 ACTING CHAIRPERSON RIORDAN: Public information. 4 All right. 5 MS. KNOTT: Good evening. My name is Marisela 6 Knott, and I'm also a community member of the City of 7 Commerce. 8 ARB's first priority is to protect people's 9 health. In the case of this MOU, those who are most 10 burdened with railroad emissions, the communities, are not 11 protected and they're not prioritized. 12 We don't believe that the railroad came to the 13 Air Resources Board out of the kindness of their hearts. 14 They came because the legislation on railroad was gaining 15 momentum and they used this as maybe a cop-out, a leverage 16 to get out of this railroad legislation that's coming up. 17 The communities that are more affected are 18 supporting the railroad legislation. We would like to see 19 ARB also support that. I know that they came up with a 20 letter in opposition to this -- these legislations. And 21 we want to see that retroverted and support this 22 legislation. 23 The railroads came to you today and said they 24 want to clean the air. So if they want to clean the air, 25 they'll support this legislation. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 243 1 We heard -- we've been hearing about a preemption 2 that's way past due -- it's way over a hundred years old. 3 And it needs to be challenged. We believe that California 4 needs to challenge this preemption. 5 And as a mother who has two children waiting for 6 me at home with dozens of locomotives idling just feet 7 beyond their bedroom, I urge you rescind this MOU and we 8 work together for more tangible and possibly legislation 9 that will require railroads to -- require accountability. 10 So I urge you support in the community and 11 rescind this MOU. 12 (Applause.) 13 ACTING CHAIRPERSON RIORDAN: Thank you very much. 14 Thank you. And we appreciate your being here for 15 testimony. 16 Perla Hernandez, I need to apologize. I'm very 17 sorry that I failed to call on you. 18 I'm sorry. 19 MS. HERNANDEZ: Thank you. 20 I'm a senior field representative for 21 Congresswoman Grace Napolitano. 22 Congresswoman Napolitano represents the cities 23 of -- 11 territories and cities, starting from East Los 24 Angeles to Pomona. Congresswoman Napolitano is a ranking 25 member of the Water Resources Committee. And she's also PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 244 1 the Chairwoman of the Hispanic Caucus. 2 She has asked for me to come tonight to read her 3 statement. 4 "Both CARB and AQMD should work together because 5 they have the responsibility to the community to protect 6 their health and welfare. These agencies are set up to be 7 responsible for, and are accountable to, the people. Any 8 agreement such as an MOU should only focus on protecting 9 the people of California and not special interests. 10 "Our communities have the right to breathe 11 healthier and cleaner air, and any agreement should uphold 12 this right to better air quality." 13 Congresswoman Napolitano will continue to work at 14 the federal level on rail safety issues. She is currently 15 advocating for a local federal hearing with a ranking 16 member, Representative Corrine Brown from Florida, who 17 sits on the Railroad Subcommittee. And she is seeking the 18 support of the residents, of the businesses to determine 19 the future legislation that will ensure the safety and 20 quality of life that our communities deserve. 21 The Congresswoman hopes that CARB and AQMD will 22 do the right thing. 23 And I thank you tonight. 24 ACTING CHAIRPERSON RIORDAN: Thank you very much 25 and thank you for being here. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 245 1 And there may be some opportunities to ask for 2 assistance from the congresswoman. So we appreciate that. 3 MS. HERNANDEZ: Absolutely. Thank you. 4 ACTING CHAIRPERSON RIORDAN: Thank you very much. 5 All right. I know there's probably a gentleman 6 that I've missed, and I apologize. The gentleman sitting 7 over there so patiently. 8 Lydia Gutierrez and Bob Eulh and Councilwoman 9 Uranga of Long Beach, if you'd come forward. 10 MR. FLOURNOY: Ladies first. 11 ACTING CHAIRPERSON RIORDAN: No, you go ahead. 12 No, you take your turn right now or I might even 13 forget. 14 (Laughter.) 15 MR. FLOURNOY: I'm James Flournoy and I'm 16 Corporate Secretary of Save Our Community, which is a 17 public interest group basically based in Rosemead, 18 California. 19 Margaret Clark testified at a previous hearing. 20 She was the Mayor of Rosemead at the time, and she spoke 21 in opposition to the MOU and supported AQMD's issues. So 22 I'm not going to repeat what she said. 23 We also have a -- I'm also a chairman of a Sierra 24 Club task force group. And Sierra Club's also on record 25 in opposition, so I'm not going to say that. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 246 1 A couple of personal observations. I am opposed 2 to the importation of higher sulfur fuel in on-road 3 interstate locomotives. I think this is a place that 4 needs to be worked on, even more stringently than it has 5 been or it will be, because the allowing of bringing fuel 6 in from out of state that doesn't meet our standards is 7 going to dilute our whole process. 8 My second point is, as we know, there's a massive 9 subsidy of the trucking industry in -- not only in 10 California but nationwide. And this throws the whole 11 economic competitive picture of the railroads vis a vis 12 the trucks into a cocked hat. The railroads have to do 13 everything they can to survive, and they're not getting 14 the subsidies with the road tax and the -- they don't pay 15 their free -- their fair share of the road maintenance 16 that the railroads have to do on their own. And this is 17 not something you can solve. But we have to get it solved 18 to balance the competitive position of the railroads, 19 which haul much more of the freight much more efficiently 20 than the trucks, which, as you know, is a bigger pollution 21 problem in the first place. 22 On another note, times are changing. We have two 23 other city councilmen from the City of Rosemead that are 24 not necessarily very green, and we have collected over 25 25 percent of the registered voters in Rosemead on a recall PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 247 1 campaign, and we'll be having a election February 2nd. So 2 the political winds are changing more towards an 3 environmental point of view. 4 Anyway, we generally support the AQMD's position. 5 But there's still a lot of work to be done, and I would 6 urge that know matter which way you vote on this tonight, 7 that you convert these -- the MOU or the non-MOU into 8 regulations as soon as possible and proceed from there. 9 Thank you. 10 ACTING CHAIRPERSON RIORDAN: Thank you, Mr. 11 Flournoy. 12 Ms. Witherspoon, do you want to just comment 13 on -- I don't want him to leave thinking we're bringing 14 all this sulfur diesel in, that actually we're getting 15 some benefits from not having it. From not necessarily 16 the MOU, but other -- 17 EXECUTIVE OFFICER WITHERSPOON: Both the 18 regulation that the Board adopted last year and this MOU 19 require railroads to make every -- well, in the first 20 instance require railroads to use low sulfur diesel fuel 21 in their captive locomotives here in California; and then 22 also to use low sulfur fuel for 80 percent of the 23 locomotives they fuel in California, which might be 24 line-haul destined out of the state but fueled here. 25 The one aspect of rail operations we were not PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 248 1 able to get at with our legal authority or through the MOU 2 is trains arriving with fuel on board, which they are 3 permitted to do and will do if it's economically more 4 advantageous. And the more we pressed against that 5 envelope, the more we changed economic relationships 6 inside our borders and had the emission benefits for 7 in-state fueling get away from us. And so we've gone as 8 far as we think we can to encourage the spread of low 9 sulfur fuel. And then EPA is right behind us in 2012. 10 MR. FLOURNOY: I appreciate that. 11 ACTING CHAIRPERSON RIORDAN: Okay. And I just 12 wanted you to know. 13 MR. FLOURNOY: Well, I understand that this is a 14 bigger picture than right here. But we know that in 15 Phoenix and Tucson and Denver and Salt Lake there's going 16 to be a regional problem and all these bases are going to 17 want the low sulfur fuel. 18 ACTING CHAIRPERSON RIORDAN: Okay. Appreciate 19 that. 20 MR. FLOURNOY: So keep at it. 21 ACTING CHAIRPERSON RIORDAN: But I did want you 22 to know we're working at it. 23 MR. FLOURNOY: Keep at it. 24 ACTING CHAIRPERSON RIORDAN: Yes. 25 Lydia Gutierrez. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 249 1 MS. GUTIERREZ: Hi. My name is Lydia Gutierrez. 2 I'm a school teacher -- public school teacher at Hudson 3 Elementary School, which is adjacent to the projects that 4 have been said. 5 I am very pro jobs from the port, for the 6 railroad system. I understand where commerce is coming 7 from, from Barstow. California needs these jobs. 8 But another part of it is our children. And one 9 part that -- I've been running around collecting cards 10 from these businesses that have been named here, because I 11 really want us to work together. 12 Hudson Elementary is a distinguished school. If 13 you could understand that we -- that every container that 14 comes out of the port is going to come through us, through 15 our school grounds. It's right next to our wall. And we 16 also have the refineries, besides all the containers 17 coming through, and the trains. Everything is right 18 there. 19 We literally just have a fence. We don't even 20 have a wall. We see the trains going by. We have lineup 21 after lineup of hundreds of diesel trucks right there in 22 our backyard. And we have a high score of asthma victims 23 from our children. So it's been very serious within this 24 time frame. 25 I am concerned that BSF -- if I can say these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 250 1 initials right -- BNSF has said they are trying to work 2 with the environment, but I haven't seen it. 3 Also Union Pacific has said -- you know, that 4 Lupe explaining how well she wants to work with the 5 environments. But it's not present. 6 And we have such a serious problem right now that 7 nothing -- I went running around -- I've been only at this 8 school for seven weeks. And all of my teaching career has 9 just basically been around the freeway. So I have little 10 specks in my lungs because of that type of job. 11 But it's because of my love for the children, and 12 these particular type of children that has specific needs. 13 I brought a textbook. It's the textbook of 14 medicine. And it says something about asthma: "Obviously 15 the most direct form of management of the patient with 16 asthma is to terminate their exposure to responsible 17 allergies or irritants." Our children can't leave. We're 18 there. 19 And my concern, like I said, is that these bodies 20 that have spoken to you saying that they want to work with 21 us, well, they haven't worked with us so far. And we have 22 children that do have damaged lungs. And I don't know 23 what else to say about it. 24 ACTING CHAIRPERSON RIORDAN: Well, I think you've 25 said it very well. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 251 1 MS. GUTIERREZ: Thank you. 2 ACTING CHAIRPERSON RIORDAN: And, as you see, 3 your time is up. 4 Let me just be very sure, because I'm not sure 5 where Hudson School is. What area is it in? 6 MS. GUTIERREZ: We are directly behind -- Willow 7 and Western, which is directly behind the BNSF -- where 8 the BNSF and the Union Pacific meet. 9 ACTING CHAIRPERSON RIORDAN: But what city? 10 MS. GUTIERREZ: Oh, west Long Beach. 11 ACTING CHAIRPERSON RIORDAN: Long Beach. Okay. 12 MS. GUTIERREZ: I'm sorry. West Long Beach. I 13 apologize. 14 ACTING CHAIRPERSON RIORDAN: All right. Because 15 I'm sure that some of the representatives here from the 16 railroads might like to meet with you and work with you, 17 but I wanted to be very sure where it was. 18 And we thank you for your testimony today. 19 MS. GUTIERREZ: Thank you. 20 ACTING CHAIRPERSON RIORDAN: Thank you very much. 21 (Applause.) 22 ACTING CHAIRPERSON RIORDAN: Okay. Bob Eulh and 23 Councilwoman Uranga. 24 Teresa Lopez, if you'd come up forward please. 25 Darryl Molina, Goedana -- the ACLU. I apologize. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 252 1 I cannot pronounce your last name correctly. If you'd be 2 ready to testify, I'd appreciate that. 3 Bob. 4 MR. EULH: Bob Eulh, City of Commerce. 5 The MOU stinks. Plain language. 6 (Applause.) 7 MR. EULH: I've lived at the railroad, maybe 150 8 feet from the fueling station. 9 "Why did you move there, Bob Eulh? You knew the 10 railroad was there." 11 You know what? The railroad wasn't there. The 12 houses were there. I was there. The railroad was three, 13 four miles away. One track into L.A. Station and one 14 track out. 15 Who moved in next to the homes? They were 16 Japanese farms. The poor people were in concentration 17 camps. The railroad moved in, moved it up against my 18 wall. They are up against us. The trucks are ten feet 19 from my bedroom window. The container trucks. 20 The railroad says, "I want to be a good 21 neighbor." That's a bunch of baloney. If they're good 22 neighbors, they'll answer your phone calls. But you have 23 to call to Omaha, Nebraska, and you don't get any answers. 24 I sit on the railroad task force. Commerce just 25 had a deliberate derailment into our homes, with the Union PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 253 1 Pacific. Deliberate derailment. Instead of derailing 2 inside their yards another two miles, they derailed into 3 our homes. 4 "We want to be good neighbors." 5 I sit on the task force. So they come in and 6 they meet and they say, "We want to be good neighbors." I 7 says. "Okay. I'm happy you want to be a good neighbor. 8 Allow us into your rail yard, allow the fire department 9 in, allow the Sheriff's Department in, Allow our city 10 council in there, if you want to be a good neighbor." You 11 know what? They said okay. In what, 50 years, 60 years? 12 Nobody is allowed into the rail yards. We trapped them, 13 because we said, "You want to be a good neighbor." You 14 have to trap them. 15 They're worthless. They don't do nothing for us. 16 They don't listen to you. They don't want to do anything. 17 And you think this MOU's going to do anything? It's got 18 to have teeth in it. And you need people like me to give 19 you some teeth. This is terrible. 20 (Applause.) 21 MR. EULH: I know you're all smiling. You think 22 it's funny. But it ain't funny. 23 ACTING CHAIRPERSON RIORDAN: No, no. No, no, 24 we're not smiling. But you have a wonderful way of 25 expressing things. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 254 1 MR. EULH: Well, you haven't heard me yet. 2 (Laughter.) 3 MR. EULH: I haven't -- the noise is constant 24 4 hours. 5 Oh, stop? 6 ACTING CHAIRPERSON RIORDAN: Yeah, you've got to 7 stop. 8 MR. EULH: And the lights in my bedroom are 9 horrendous. You don't think the sex stopped in my 10 bedroom. 11 (Laughter.) 12 ACTING CHAIRPERSON RIORDAN: Okay. I appreciate 13 that. 14 (Applause.) 15 (Laughter.) 16 ACTING CHAIRPERSON RIORDAN: All right. We'll 17 have the councilwoman. And then I need to go back. I 18 think Madeline Clarke, I skipped over her name and I 19 apologize. 20 Councilwoman. 21 COUNCILWOMAN URANGA: Thank you. My name is 22 Councilwoman Tonia Reyes Uranga and I represent the City 23 of Long Beach and on behalf of the 7th District 24 constituents. And the 7th District is the home of Hudson 25 Elementary School. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 255 1 And I'll tell you, the west side is surrounded to 2 the west by the Union Pacific, ICTF, the Terminal Island 3 Freeway, numerous oil refineries. And the proposed BNSF 4 facilities is planning to go in there. To the south by 5 the Port of Long Beach, to the east by the 710 freeway, 6 and to the north by the 405 freeway. We are in a literal 7 coffin of death with the air that we have to breathe on 8 the west side. 9 So the constituents of the City of Long Beach -- 10 I would like to address some critical issues regarding the 11 recently negotiated MOU with CARB and the staff from UP 12 and BNSF companies. As you know, continued air pollution 13 are locomotives and rail yards is a major health and 14 safety concern to the families' that I represent. I 15 support additional levels of public participation, and 16 thank you for having this meeting tonight. 17 But I would urge CARB just to listen the comments 18 from the westside Long Beach community and actually all 19 the communities that are impacted by the railroads. They 20 need to really be listened to. 21 The area I represent is immediately adjacent to 22 the existing UP and a multi-container transfer facility 23 and the proposed BNSF facility. 24 Seven schools, a citywide child care facility, 25 residential neighborhood, senior citizen housing and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 256 1 social services absorb the direct impacts of these 2 railroads. 3 Mitigation programs must acknowledge the 24-hour 4 impacts of rail to those living and working in the 5 impacted areas. These railroads and the intermodal 6 transfer facilities run 24/7. There is no relief. 7 The City of Long Beach was working hard to 8 improve the air quality by adopting our ten-year strategic 9 plan with actions that call for collaboration with AQMD, 10 the Regional Quality Board, and other agencies to reduce 11 pollution. Our transit plan also calls for -- to work 12 with Long Beach Unified School District. But I'll say 13 that the city council recently made a motion, and it 14 passed overwhelming, to oppose the CARB/railroad MOU to 15 governing diesel particulate emissions. And of particular 16 concern was the termination clause. And I understand that 17 the railroads are concerned about the patchwork. But to 18 be honest with you, some communities are just more 19 impacted than others. And my community is one of them. 20 The City of Long Beach actions governing -- 21 regarding the MOU rail yard -- the particulate emissions 22 warrant consideration by CARB as the primary impacts of 23 these regional pollutants are immediately borne by our 24 neighborhoods. Additionally, since the rail facilities 25 exist to serve the Port of Long Beach and the Port of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 257 1 L.A., and not the community, the City of Long Beach has 2 acted responsibly to ensure that you our 2010 strategic 3 plan objectives to improve air quality are achieved by 4 working closely with CARB and the AQMD. And for that 5 reason we urge that you rescind this MOU. 6 As you deliberate on further improvements to the 7 MOU and our other means to reduce health impacts of 8 railroad operations, I urge you to consider the impacts to 9 the locally affected community, not just the argument of 10 greater good. I represent a community that has shouldered 11 much more than their fair share so that the national 12 benefits of the goods movement infrastructure can be 13 achieved. It is time we recognize that environmental 14 justice is not a matter of cost benefit analysis. The 15 impacted communities have suffered far too long, and 16 neither the cities, the region or the state can begin to 17 compensate them for the daily toll on their lives and on 18 their health. 19 I will be following this process to ensure that 20 the interests of the people I serve are protected and air 21 pollution impacts of railroad operations are reduced or 22 mitigated to the fullest extent. 23 And, once again, I'll tell you that the City of 24 Long Beach, the entire city council voted to request or 25 demand that you rescind this MOU. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 258 1 Thank you. 2 ACTING CHAIRPERSON RIORDAN: Thank you. 3 (Applause.) 4 ACTING CHAIRPERSON RIORDAN: Let me go back to 5 Madeline Clarke. 6 Madeline, are you here? 7 EXECUTIVE OFFICER WITHERSPOON: Madam Chairman, 8 while the witness is coming up -- I'll let you go ahead 9 and call them. 10 ACTING CHAIRPERSON RIORDAN: All right. I'm just 11 looking to see if Madeline -- staff had reminded me I 12 maybe had Mister, and I apologize. 13 Let's then go -- let me call forward Teresa Lopez 14 and then Darryl Molina; Goedana -- with the ACLU; Mayra 15 Gonzalas; Bert Barboza for Youth for Environmental 16 Justices; and Anthony Orozco for Youth for Environmental 17 Justice. If you'd all join us there. 18 And then Ms. Witherspoon's going to make one 19 statement and then we'll begin our speakers. 20 EXECUTIVE OFFICER WITHERSPOON: The agreement 21 we're talking about tonight has to do with air quality. 22 But as a couple of the witnesses have mentioned, there are 23 other negative community impacts from railroad operations, 24 the light, the noise, et cetera. Next week the Governor's 25 Goods Movement Action Committees are meeting all week, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 259 1 from Monday through Friday; and there is a work group on 2 community impact mitigation, which will be meeting 3 Wednesday afternoon from 1:30 until 4 at Cal EPA in 4 Sacramento. And that meeting will also be webcast and 5 there will be phone numbers to call in on. 6 And what they'll be exploring is whether the 7 kinds of mitigation that was put together in the 8 neighborhoods around LAX is a model that we should follow 9 for communities around rail yards and around ports; if we 10 should reestablish buffer zones because encroachment has 11 occurred; whether the houses or the railroads were there 12 first, now they're both there and that's a problem; and 13 what some of the costs of this mitigation might be, so 14 they can be put on the table, as the administration is 15 figuring out how to finance the entire set of improvements 16 to the goods movement system. 17 So I would encourage people with those concerns 18 either to participate in that meeting or watch for the 19 results on both the Cal EPA website and the Business, 20 Transportation and Housing website. 21 ACTING CHAIRPERSON RIORDAN: Thank you, Ms. 22 Witherspoon. And maybe we can make that information 23 available at the back table for people. I think that 24 would be very helpful. 25 Teresa Lopez. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 260 1 MS. LOPEZ: Hello. I'm Teresa Lopez. I'm a 2 resident of the City of San Bernardino. I live directly 3 across the street from Burlington Northern Santa Fe. I 4 was raised in that house all my life. I'm 51 years old. 5 My mother grew up in that house. 6 And what I can say about the railroad is that 7 I've seen it expand quite a bit, from a couple of tracks 8 now to -- I don't even know how many. It's doubled, it's 9 tripled. It's going to get worse. What I see, what I 10 smell, what I hear, it's bad. To open my front door and 11 try and enjoy the beautiful air when we do have it, you 12 smell a -- the smell of the diesel coming from a 13 locomotive. You look out my front door -- I'm separated 14 by four lanes -- a street, four lanes. That's it. 15 And if I look out my front door and I see the 16 cars going by, the trains going by, I can see the smoke. 17 I can see the diesel coming from the trains. 18 Now, you're making an MOU and you're going behind 19 closed doors, and you're not including us in this process. 20 No one has ever come to my house and asked me how I feel 21 about what's going across the street. And just now I see 22 a whole bunch of representatives from both railroads out 23 here. All of a sudden they're out here because they want 24 to be good neighbors. They should have started this when 25 they started putting in this intermodal or when they PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 261 1 started expanding the railroads. They should have been 2 there talking to the neighbors. 3 This is every day that I see this. And it's not 4 only in my area. If I go through Colton, if I go through 5 Bloomington, Riverside, and just about any place where you 6 see a railroad, this is what you see. 7 And to accept 20 percent. If your car is broken 8 and it's smoking, you want it fixed completely, not 20 9 percent. 10 So you need to cancel the MOU, go back and meet 11 with the communities before you do anything else and ask 12 them what they want. 13 Thank you. 14 (Applause.) 15 ACTING CHAIRPERSON RIORDAN: Thank you very much. 16 Darryl Molina. 17 MS. MOLINA: Good evening. My name is Darryl 18 Molina and I'm here representing Communities for a Better 19 Environment. I'm here today to voice my strong opposition 20 to the MOU and to demand that this MOU be terminated. 21 I'm the youth organizer for Communities for a 22 Better Environment, and so part of my job is to work with 23 three high schools in the southeast L.A. region. And 24 those high schools are South Bay High School, Huntington 25 Park High School, and Southeast High School. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 262 1 And fortunately we have few of the members from 2 our Youth for Environmental Justice Club here today. So 3 I'd ask if all of you could please stand. 4 (Standing.) 5 (Applause.) 6 MS. MOLINA: The community of southeast L.A. 7 Where I work is a low income community of color, where we 8 are already impacted by powerplants, freeways, auto body 9 shops, chemical manufacturing sites and railroads. 10 Today I had to do a class presentation. Part of 11 my job is to do outreach and to educate like high school 12 students about what's going on in their communities. And 13 one of the main things I would talk about is environmental 14 racism. 15 And when I'd talk about environmental racism, I'd 16 say, "You know, what that means is that low income 17 communities of color are unequally affected by polluting 18 industries." And so when we -- when they try to ask, you 19 know, why does this happen? You know, why are we -- you 20 know, low income communities of color, why are we affected 21 by this pollution more than other communities? And one of 22 the reasons is because industries and businesses like the 23 railroads think, you know, we can go into areas where, you 24 know, people will not have -- people don't have a lot of 25 political power, where people won't say anything and won't PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 263 1 speak out. 2 But what I'm here -- why I'm here today and why I 3 brought so many youth is to say, "You know what? We will 4 not stand up for this. We will speak out and we will 5 demand that this MOU be terminated." 6 (Applause.) 7 MS. MOLINA: Through this MOU you are sending a 8 strong message to these youth that industry and businesses 9 are more important than their health, that they are more 10 important than their right to breathe clean air. And so I 11 want you to just think about that and to think that this 12 MOU, if it is not terminated, will go on until the year 13 2015. The year 2015, for 10 entire years. 14 And so if you'd have to live in these 15 communities -- a lot of them don't have the option to move 16 out to, you know, Santa Monica, to move out to Pacific 17 Palisades, you know, where they don't have to see a 18 railroad passing through their streets everyday, they 19 don't have to see chrome plating facilities next door to 20 their high schools. They don't have this option. And so 21 I just want you to think about that, think that there are 22 communities of color, low income communities that are 23 suffering unequally by the effects not only from railroads 24 but from powerplants, from diesel truck pollution. And so 25 I just want you to think about that and note that these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 264 1 youth are here to stand up for them. A lot of them are 2 kind of shy, so I'd -- I don't even want to be here to 3 speak, but some of them are too shy to speak themselves. 4 But just to say that this MOU needs to be terminated. You 5 need to have public input, before it's passed, not after 6 the fact. And we have to ask you to terminate it. 7 So thank you very much. 8 (Applause.) 9 ACTING CHAIRPERSON RIORDAN: Thank you. 10 MS. KIORPEOGLOU: Hello. I'm here with Jesse 11 Marquez, Coalition for a Cleaner Air. And I am an ACLU. 12 ACTING CHAIRPERSON RIORDAN: Yes. And your name? 13 MS. KIORPEOGLOU: My name is Goedana Kiorpeoglou, 14 and I live in San Pedro. And this young lady was 15 excellent. And there was not any better speech that I 16 heard tonight. 17 And actually what I got to say to you guys, all 18 of you, we're not going to put up with no more bullshit 19 and lies. We wanted something done for young kids that 20 deserve to breath like everybody else. 21 People living in Palos Verdes, they breathe. 22 People living down in Pedro in the docks, they 23 need to breathe. What are they supposed to do, jump in 24 the ocean? If we can grow the gills, go back in to it and 25 swim. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 265 1 So let's be honest and fair. Let's be human. 2 And let's treat every human being in this planet equally 3 and specially. Come to think of it, when I was growing up 4 my father taught me this is not my planet. It's mine to 5 keep it and give it away and in better shape than I 6 received it. Not be greedy. 7 So the companies that exploiting, they should be 8 responsible for putting their money and getting a better 9 fuel and better everything, better filters. We got a man 10 to the moon, we got our scientists, let's use them. Let 11 them invent something that's going to benefit every child. 12 Doesn't make no difference that child is white, black, 13 Latino. Every child equally. 14 So that's all. I'm not going to take no more of 15 your time. Thank you very much. 16 ACTING CHAIRPERSON RIORDAN: Thank you very much. 17 (Applause.) 18 MS. KIORPEOGLOU: Thank you, Jesse Marquez. 19 ACTING CHAIRPERSON RIORDAN: Mayra Gonzalas. 20 MS. GONZALAS: Thank you. 21 My names is Mayra Gonzalas and I am part of the 22 Youth for Environmental Justice. And obviously you see us 23 all here. We're here for a reason, obviously because we 24 have concerns, we have debates, we have things that we 25 want you to know. That we do live in these communities. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 266 1 We breathe this air everyday. Everyday when we go to 2 school we see these railroads. We see these things that 3 are just polluting our air even more. And by you 4 continuing with this MOU you're basically saying, "We 5 don't care. You know, we don't hear you." 6 But we want our voice. We want our voice. And I 7 know you hear it. But maybe it's just time to listen. 8 (Applause.) 9 ACTING CHAIRPERSON RIORDAN: Bert. 10 MR. BARBOZA: Good evening. I am Alberto 11 Barboza. I'm also a member of the Communities for a 12 better environment. I'm also involved in my high school 13 program, Youth for Environmental Justice. I'd like to 14 thank you for the opportunity to let me speak and voice my 15 opinion. 16 The reason I oppose the MOU is because this was 17 done behind -- this was done without the cities which will 18 suffer from -- which will suffer from it if it is passed. 19 If these railroads are so concerned with the 20 residents' health, why did they leave them out? I feel 21 that the MOU should be reiterated at a later time in which 22 clear lines have been drawn. 23 On a more personal note, I have family that lives 24 right next to the Alameda Corridor. One of my cousins 25 suffers from asthma, and he really didn't have a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 267 1 childhood. He was in and out of hospitals. And pretty 2 much all the kids on his neighborhood, most of them have 3 asthma. And you don't really see the kids outside playing 4 soccer or living a whole childhood. 5 The Alameda Corridor runs through southeast L.A. 6 where most of the low income families live. And most of 7 them really don't have the option to move out of that 8 residence because they are lower income. 9 In closing, I would like to say that the members 10 of the Board represent us. So listen to the majority, 11 listen to our voice, and send the MOU back, stop this 12 injustice. Because my neighbor -- I don't know what type 13 of neighbors you guys have -- but they don't expose me to 14 a daily source that causes cancer and will give me 15 premature death. So listen to us and send the MOU back. 16 Thank you. 17 (Applause.) 18 ACTING CHAIRPERSON RIORDAN: Let me congratulate 19 you. That was a very good presentation and you kept 20 within your time limit. Thank you. 21 BOARD MEMBER BERG: Could I ask what school you 22 attend? 23 MR. BARBOZA: South Gate High School. 24 BOARD MEMBER BERG: South Gate High School. 25 And the other speaker? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 268 1 MR. BARBOZA: South Gate as well. 2 BOARD MEMBER BERG: Thank you very much. 3 ACTING CHAIRPERSON RIORDAN: Anthony. 4 MR. OROZCO: Good evening, ladies and gentlemen. 5 My name is Anthony Orozco. I'm an educator at South Gate 6 High School. I Teach sciences. I'm also the sponsor for 7 the youth action. 8 As part of the learning community here at South 9 Gate High School, I am part of the government, law, social 10 services, integrating that with science. And what I'm 11 deeply concerned about is a threefold scenario. 12 One has to do with innate trust. The Government 13 was created by the people for the people, not for private 14 industry. And that's something I have a deep concern 15 about. My kids are learning at firsthand how this 16 government operates. When you make decisions behind 17 closed doors and do not invite the public or other 18 institutions and organizations, then the truth is we end 19 up lacking faith in you and trust. And the truth is is 20 you -- upon yourself. And that's something you need to be 21 aware of. 22 The second issue is the MOU is kind of vague. I 23 do have concerns about it. One has to do with enforcing 24 these concepts, ideas what happens if they choose not to 25 enforce them? What happens if they unwillingly choose not PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 269 1 to say, "Okay, we're going to make these changes?" What 2 are the time constraints? Okay. That's something I'm 3 really worried about. 4 Then if we do take action, they could just 5 rescind and say, "Oh, we're going to opt out." Basically 6 this is what could happen. Any city, any county could 7 say, "You know what? We want to pass this law. And we're 8 going to pass this law for stricter guidelines." And then 9 the railroad system says, "Well, you know what? If you're 10 going to do that, we're just going to opt out." And that 11 makes me worried. Because if we -- if we would have 12 worked this together with the public involvement, I'd 13 rather have the public involved. That's what it's all 14 about. 15 Another question I have -- and this is something 16 I'm not sure about. These rules apply to intrastate 17 railroads, only trains that are within California. Well, 18 let's talk about the economy. When you look at the ports 19 of Los Angeles, Long Beach, San Pedro, by 2020 it's going 20 to grow fivefold. And the biggest business of them all is 21 going to be the railways. Why? Because 70 percent of all 22 Pacific-Atlantic commerce imports goes in to that port. 23 And these trains do not stay in California. 24 So are they exempt from these MOU laws, which 25 means they could have cheap quality diesel fuel come into PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 270 1 the state? And then when we do make a phone call and say, 2 "Hey, we have a problem. This train's idling. It's 3 polluting." Well, guess what? It's not from California, 4 so it's okay. They could get away with it. How is it 5 going to be enforced? And that's something I'm not sure 6 about and I'm curious about, because I want to know what 7 would happen there. What would happen if a train from 8 another state comes in, does business, stays there for 9 days loading up their shipment and then take off? Why? 10 Because I'm a part-time longshoreman. I see the trains 11 come and go like there's no tomorrow. And you know what? 12 I know that they don't stay within California. 13 So what do we do with those trains that are 14 coming from out of state? 15 ACTING CHAIRPERSON RIORDAN: Anthony, we'll get 16 some response for you. 17 Let me just tell you that I am responsible for 18 not timing you correctly. But I do believe your time 19 is -- you need to make a final last sentence if you'd 20 like. And then I'll get a response for you. 21 MR. OROZCO: Then if the MOU is in good faith, 22 then I think we need to go back and hammer out something 23 better. Because I truly believe that this is not a good 24 deal at the moment and I would love if the public does get 25 their input. Or maybe we need to invite them. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 271 1 ACTING CHAIRPERSON RIORDAN: Okay. Let me just 2 ask Ms. Witherspoon to respond to you. 3 (Applause.) 4 EXECUTIVE OFFICER WITHERSPOON: The anti-idling 5 device requirement within the MOU applies only to 6 intrastate locomotives. But the general idling 7 restriction for locomotives that do not have the device 8 applies to all locomotives passing through our state. 9 Also all interstate locomotives that are new are coming 10 equipped with anti-idling devices. So we're getting the 11 benefit of national introductions. But as far as 12 mandatory retrofits of anti-idling, that's just 13 intrastate. 14 ACTING CHAIRPERSON RIORDAN: Let me just say one 15 thing, which is: I applaud what you're doing with your 16 students. And I would like to make an offer to you that 17 if you would like to have someone from the ARB staff come 18 and make a presentation, not necessarily on the MOU, but 19 on what we do and how we do it, we would be very delighted 20 to do that. I'm very interested in doing some outreach. 21 And so than you -- 22 MR. OROZCO: Maybe we can work something out. 23 ACTING CHAIRPERSON RIORDAN: Yes. And I'm 24 impressed with your students. 25 MR. OROZCO: Thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 272 1 BOARD MEMBER GONG: Madam Chair? 2 ACTING CHAIRPERSON RIORDAN: Yes, Dr. Gong. 3 BOARD MEMBER GONG: Perhaps even your students 4 could visit this facility, which has an excellent 5 laboratory. They could see science in action. Something 6 you would enjoy as well, I think. 7 MR. OROZCO: I'm looking forward to bridges, 8 definitely. 9 BOARD MEMBER GONG: One question, because I've 10 got him on the line. 11 ACTING CHAIRPERSON RIORDAN: All right. 12 BOARD MEMBER GONG: I've asked this before. The 13 second point that you made. The MOU exists tomorrow 14 morning. What's there to prevent again legislative 15 action, anything else to happen to make to occur and then 16 have the railroads react to that? If they walk out, they 17 walk out and there goes the MOU. 18 MR. OROZCO: But I think also -- this is another 19 thing. This is based on an accord. This is based on an 20 accord and agreement with them. How do we guarantee -- or 21 are guaranteed and ensured that they're going to do their 22 part? And then if they don't stipulate the timeframe, 23 like "we're going to take care of it within 30 days" or 24 60, then we do have a problem. Because theoretically if 25 there's no time frame stipulation, theoretically they PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 273 1 could say they can get to the problem in ten years from 2 now, until 2012. That's when the federal mandate comes 3 into play. 4 So if they are in good faith, then maybe they 5 need to be more specific in terms of the time frames when 6 a matter -- like if I'm a community member and I call up 7 and say, "Hey, this train's idling. What are going to do 8 about it?" "Well, we'll look into the matter." If I 9 don't get recourse and no one comes back and says, "You 10 know, Anthony, we took care of the matter. We informed 11 the engineer that this is what was going on," what are you 12 going to do to take care of business? And if we don't see 13 that -- because it's a twofold communication. If I call 14 up and call up and call up and nothing gets done and -- 15 you know, we have a problem. Because the truth is, by 16 working behind the scenes we sow the seed for distrust, 17 truthfully. 18 If this would have been hammered out by the 19 public and say, "Hey, we want your input. We want the 20 AQMDs, we want you guys, we want this organization to say, 21 'What do you think about this proposal?'" Because by 22 doing it behind the scenes, that instilled, truthfully, a 23 distrust. And these students of mine, these future 24 members -- taxpayers who represent citizens are going to 25 see that. And they're going to say, "Hey, I'm going to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 274 1 lose faith in my government because they're more concerned 2 about special interests than the government, who's 3 supposed to take care of the people." Because this 4 government was established by the people for the people. 5 And that's the issue itself. 6 So it's not just -- it's multifold task: 1) Is 7 there a trust with you guys? 2) Why did you do it behind 8 the scene? 3) Can we trust this company -- these 9 companies? 10 Hey, I will take a leap of faith. But until we 11 have some kind of due course, and then they say they 12 cannot adopt it, then we can't trust them. 13 ACTING CHAIRPERSON RIORDAN: Thank you. 14 MR. OROZCO: Thank you. 15 (Applause.) 16 ACTING CHAIRPERSON RIORDAN: Thank you very much. 17 Ester -- let me go on the next round. Ester 18 Portillo. 19 Is she here? Is Ester coming? 20 Anita Hutchins? 21 Anita and Ester. 22 Let's see who we have got here. 23 And you're going to be followed by Rachel Lopez 24 and Frank Gallego. 25 MS. PORTILLO: Hello. My name is Ester Portillo PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 275 1 and I represent the Center for Community Action in 2 Environmental Justice. 3 And I just want to say that I particularly work 4 in Mira Loma. And we have a gang problem in Mira Loma, 5 but the gang is the railroad industry. This is the 6 biggest gang in Mira Loma right now, because, like one of 7 the students said, they are the ones that are bringing the 8 pollution to our community, that are -- this is the 9 product of all the cancer cases that we have in our 10 community, of asthma cases in our community. And it's 11 really a slap in the face of the community when they say 12 that they're good neighbors when every day we see the bad 13 actions that they bring, the bad -- the contamination that 14 they bring to our community. And it just -- you know, it 15 just -- I would rather them not even say that they're good 16 neighbors because, on the contrary, they're not. 17 So I just want to encourage you all to vote 18 against the MOU. And that if you do vote for this MOU, 19 you are voting against the wishes of this community, 20 against what's -- you're voting basically for more cancer 21 risk in our community, more asthma and everything that 22 comes with that. 23 And, like I said -- and one question I do have 24 for you all is: Who do you work for? Do you work for the 25 people of California or do you work for the railroad PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 276 1 industry? And I think tonight you can answer that 2 question with your vote. 3 Thank you. 4 (Applause.) 5 ACTING CHAIRPERSON RIORDAN: Thank you. 6 Anita Hutchins, followed by Rachel Lopez. 7 MS. HUTCHINS: Thank you very much. 8 My name is Anita Hutchins. I'm a teacher for 9 Torrance Unified School District. I work with children in 10 the elementary school. Many of the children are suffering 11 from different respiratory diseases or -- and problems 12 with the air and air pollution. And I'm hoping that 13 you'll take into consideration the many thousands of 14 students in the whole L.A. Basin that are suffering 15 because they can't breathe clean air; and that you will 16 take a look at all options that you possibly can to help 17 the students have an opportunity to run and play and sing 18 and dance at recess without the horrible -- the horror of 19 not being able to breathe. 20 And also I don't understand why the MOU would 21 be -- why there is any -- why the MOU cannot be 22 considered -- and I don't -- and that the public can be 23 asked to get together with everyone. My people can all 24 sit down and talk this over and make plans that would 25 benefit everyone, especially all the people that live in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 277 1 this area. 2 Thank you. 3 ACTING CHAIRPERSON RIORDAN: Thank you very much. 4 (Applause.) 5 ACTING CHAIRPERSON RIORDAN: Okay. Rachel. 6 MS. LOPEZ: My name is Rachel Lopez and I live in 7 Mira Loma. Our community has for the last four to five 8 years slowly been encroached upon by the ever increasing 9 effects of the goods movement. 10 Our community of Mira Loma has the fourth worst 11 air quality in the world. Because our community has easy 12 access to freeways, vast open land and cheap prices, the 13 logistics industry was lured to the inland valley. The 14 lethal pollution levels were quickly compounded with 15 deadly diesel, as hundreds of one million square foot 16 mega-warehouses sprouted throughout the area, accompanied 17 with thousands of diesel-spewing big rigs and an increase 18 in the trains rolling through our community. 19 The effects of the mega-warehouses and the 20 concentration of the diesel emissions in our community 21 have made Mira Loma a toxic hot spot. 22 Adding to the warehouse truck and train pollution 23 is a Union Pacific auto distribution center located 24 adjacent to our high school. The intersection of the 25 truck routes to the warehouses, railroad operations and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 278 1 truck staging area right next to the athletic field has 2 made the high school ground zero for deadly pollution. 3 The Union Pacific Rail Yard expanded their rail 4 yard in June of 2004 from 162 acres to 274, making it one 5 of the world's -- one of the largest handling 6 facilities -- auto handling facilities in the world. 7 The Union Pacific rail industry entered into an 8 MOU with the County of Riverside on September 9th, 2003. 9 The following are some of the provisions stated in that 10 MOU regarding air quality. 11 Trucks were to turn right at Galena and Etiwanda 12 and stay out of Mira Loma. No offsite vehicle parking was 13 allowed -- will be allowed. Union Pacific or any other 14 company operating the facility will direct drivers of 15 diesel trucks not to use any public streets south of 16 Galena Street in order to arrive or depart from the 17 facility. 18 I took these pictures yesterday afternoon at 4 19 o'clock. This truck that you see on this side came out of 20 the auto facility and turned left into our community, out 21 of Galena and turned left on Etiwanda headed into Mira 22 Loma. 23 This same truck I followed down the street. It 24 was right next to our high school. 25 That truck at the bottom, that was stuck in front PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 279 1 of my house two weeks ago -- two weeks ago. The guy was 2 stuck there for four hours in front of my house. He had 3 to unload his entire cargo. He bottomed out on our 4 street. Our street as a rule has no sidewalks. People go 5 through there on horseback. That truck stayed there for 6 four hours blocking our street. 7 ACTING CHAIRPERSON RIORDAN: I'm going to have to 8 ask you for one concluding sentence please. 9 MS. LOPEZ: Yes. 10 We urge you to put our communities and our 11 children's health first. We demand that the rail industry 12 no longer prosper at the expense of our communities' 13 health and our of quality of life. We demand -- our 14 communities demand that you rescind this MOU today. 15 ACTING CHAIRPERSON RIORDAN: Thank you, Rachel. 16 Frank Gallego, followed by Carl Farrington and 17 Jesse Marquez and Arthur Hernandez. 18 MR. GALLEGO: Good evening. 19 My name is Frank Gallego and I hail from the City 20 of Commerce also. 21 I want to go on record to terminate this MOU. 22 And the reason for that is that the MOU undercuts and 23 actually defeats the actual existence of your Board. It 24 ties your hands and renders you unable to effect 25 compliance. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 280 1 We have experienced many obstacles along the way. 2 And tonight you have been the recipient of a lot of flack, 3 and I apologize to every member of the Board. I do not 4 intend to do that, because you are all very respectable 5 people. 6 But I do want to stress the fact that this MOU 7 actually defeats the very purpose of your existence. It 8 lacks the weakness -- and it has a weakness for you to 9 enforce your regulations. 10 Allow me to insert a personal note here that has 11 been affecting me and my family. I have lived in the same 12 locale for 56 years, prior to the incorporation of the 13 city. And throughout that time I have witnessed the 14 increase of the railroad trafficking in the local area and 15 nearby vicinity. 16 The memorandum of understanding specifically 17 limits the idle duration of the locomotive engines to 15 18 or 30 minutes, depending on the gravity or the necessity 19 of the engine to prepare -- or to be energized. 20 The railroad companies are consistently and 21 indirectly in violation of your mandate, because you 22 indicate very specifically in your memorandum of 23 understanding that the idling should be restricted to 15 24 or 30 minutes at the most. 25 Please note, ladies and gentlemen, that this -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 281 1 railroad companies are in constant violation of your 2 mandate. They do their idling as they please. Many times 3 the locomotive engines are stationed for two or three or 4 four hours. And it depends many times on weekends they 5 will station the engines idling and left unattended all 6 day and all through the night. Consequently -- 7 ACTING CHAIRPERSON RIORDAN: I need -- you must 8 make a final -- 9 MR. GALLEGO: Consequently we are breathing foul 10 air throughout the night. 11 I realize that I had a manuscript here to 12 deliver. But with all due respect I will close by saying 13 thank you and for allowing me to speak. 14 ACTING CHAIRPERSON RIORDAN: Thank you very much 15 for your testimony. I appreciate it. 16 (Applause.) 17 ACTING CHAIRPERSON RIORDAN: And for the fact 18 that you stayed to your time limit. Thank you. 19 Okay. Carl Farrington. 20 MR. FARRINGTON: My name is Carl Farrington. I'm 21 the Chairman of the Social Concerns Committee of the South 22 Coast Interfaith Council. 23 The South Coast Interfaith Council has 250 24 affiliated congregations spread between the South Bay and 25 Palos Verdes on the west and Seal Beach on the east. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 282 1 Pollution from the ports of Long Beach and Los 2 Angeles and the movement -- and from the movement of goods 3 to and from the ports has been a major concern of SCIC's 4 Social Concerns Committee since its foundation over a year 5 ago. 6 I'm also a member of the task force -- the Goods 7 Movement Task Force of the Southern California Association 8 of Governments. And in my work with these organizations I 9 see that there are many environmental organizations and 10 also public health officials who are convinced that the 11 existing regulations and the legislation that's being 12 considered in the State Senate and the State Assembly is 13 far stronger than what the -- as far as regulating 14 pollution than the MOU would allow. 15 While we recognize the importance of the goods 16 movement industry to all of the Los Angeles Basin, we are 17 also aware of the serious effects including increased 18 incidence of cancer, asthma, heart disease, decreased lung 19 function and birth defects upon the populations living 20 near the land and sea corridors of transportation. 21 The number of containers coming into the ports is 22 expected to triple in the next 20 years, and efforts are 23 being made to have a larger share of these containers 24 moved by train rather than truck. It is therefore of 25 vital importance that special efforts be made to reduce PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 283 1 toxic emissions from railroads as part of the statewide 2 effort to protect the health of children, adults and the 3 elderly. 4 We urge you to give due consideration in your 5 study of the MOU. 6 Thank you. 7 ACTING CHAIRPERSON RIORDAN: Thank you very much. 8 I appreciate your testimony. 9 (Applause.) 10 ACTING CHAIRPERSON RIORDAN: And Jesse Marquez, 11 followed by Arthur Hernandez. 12 And then, Jesse, if you'd just wait one second. 13 Julia Scoville, Jose Velasco, Susana Negrete, and 14 Josie Gaytan, if you'd come forward to the side to get 15 ready. 16 Thank you, Jesse. 17 MR. MARQUEZ: My name is Jesse Marquez. I'm 18 Executive Director of the Coalition for a Safe 19 Environment. We have members in 20 cities that border the 20 Port of L.A., the Port of Long Beach, the Alameda 21 Corridor, and all through the freeway goods movement 22 system. 23 It is a hundred percent vote of our membership to 24 request that you rescind this MOU. 25 Number two, we have a second request, that you PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 284 1 fire your legal counsel. 2 (Applause.) 3 MR. MARQUEZ: Since when does an MOU supercede 4 California law? Since when does an MOU replace California 5 law? And since when can an MOU stop California law? It 6 cannot. It absolutely cannot. 7 Was ARB innocent when it came to the legislation 8 that we had proposed to be postponed or delayed for a 9 two-year bill? No. ARB, Catherine Witherspoon and her 10 staff showed up on Monday morning between 8 and 9 a.m. and 11 spoke to each chairman of Senate and Assembly committees 12 and each voting member and told them they could not vote 13 for the legislation that we had pending. That was a 14 direct interference of our public's rights and the 15 legislative process. 16 You're talking about 20 percent reduction? 17 That's an absolute joke. I live from the Port of Los 18 Angeles and I know the statistics: 43,000 truck trips a 19 day, by 2020 is increasing to 121,000 truck trips a day; 20 13 million containers this past year is going to 49 21 million containers a year. 22 The growth rate is approximately 10 percent per 23 year. So in about another 18 months we've already hit the 24 20 percent mark and you haven't reduced anything. 25 The three bills and the rule AQMD was proposing PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 285 1 for the 3500 series, we supported that 100 percent. And 2 we estimated it would have over a 60 percent reduction 3 today and more in the future. Given us also options to 4 present more legislation for even bigger reductions. 5 So this MOU means absolutely nothing. 6 You talk about fines. $400, $800, $1200 a day. 7 They're making hundreds of thousands of dollars a day. 8 When one of our mothers in our communities takes a child 9 having an acute asthma attack to emergency hospital, that 10 child stays overnight. It costs 10 to $20,000. That's 11 every child. 12 ACTING CHAIRPERSON RIORDAN: Jesse, notice your 13 time. And I need a concluding sentence. 14 MR. MARQUEZ: In conclusion, you referenced 3503 15 as a good rule, AQMD. Your staff here requested AQMD to 16 cancel it altogether. And what happened to 3501, 3502, 17 and 3504, which are the other three that went with that 18 series? 19 Also I'm going to hand you out a document right 20 here, because you might also be thinking: Is that the 21 only technology that exists to the railroad? Well, we 22 documented four alternative technologies that replaces all 23 the locomotive industry, period. 24 ACTING CHAIRPERSON RIORDAN: We'll make that part 25 of the record. And if you'll give that to our clerk over PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 286 1 at that table. 2 Thank you, Jesse. 3 (Applause.) 4 ACTING CHAIRPERSON RIORDAN: Arthur Hernandez. 5 MR. HERNANDEZ: My name is Arthur Hernandez. I 6 represent the Wilmington Senior Council. I also am a 7 board member of the Wilmington Neighborhood Council in 8 Wilmington. 9 I was attending the Peacock Los Angeles Harbor 10 Advisory Board meetings. And I volunteered to monitor the 11 Watson yard, and in particular the -- because the 12 globalization of containers that are coming into our Port 13 of Los Angeles, it's impacting many of our communities. 14 And the impact has affected our community to the point 15 where there's been environmental pollution. There's 45 to 16 52 diesel locomotives that were counted there. This was 17 in June. At present there are 16 locomotives there. And 18 I think I've counted from above 8 to 10 locomotives at 19 present. 20 Locomotives produce excessive noise. There's 21 bang sounds at all hours. At night in particular are 22 whistle sounds, diesel -- or engines running at all hours. 23 And in particular these diesel trains that when 24 they come in our community, I have seen the engineers that 25 use gas masks and they're operating these diesel PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 287 1 locomotives with gas masks. And the emissions come into 2 our community. We have no defense. 3 Also, diesel locomotives block Lomita Boulevard 4 for one hour around 5 o'clock. The trucks are backed 5 about a half a mile. 6 The horns come in and blow from three to five 7 times. And at one time I counted 19 times the diesel 8 locomotives blew their horns. And that was at about 4 or 9 5 o'clock in the morning. But it's continuous and it goes 10 on all hours. 11 All the trucks and diesel trains should turn off 12 their engines after entering the harbor. And residential 13 communities should not be -- they should not be running 14 after five minutes. I think there's an agreement where 15 they can run up to as long as 60 minutes or something. 16 But that's really too long. A lot of the automatic 17 idling, some of them do work, some of them don't work. 18 That's been a problem, because when they turn on you can 19 hear it. 20 Also there's been shipments of chemicals such as 21 ethanol, propane, LNG, and butane, dehydrated coal are 22 being shipped and stored behind Hyatt in the residential 23 community. 24 All the above I've mentioned, except for coal, 25 are red label. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 288 1 We are -- in our community we're working to make 2 our community a better and safer place to live. 3 In this monitoring -- 4 ACTING CHAIRPERSON RIORDAN: Arthur -- 5 MR. HERNANDEZ: -- environmental impact, I've 6 turned it in to the port. And if you'd like a copy, I'll 7 give you one. 8 ACTING CHAIRPERSON RIORDAN: We'd appreciate it. 9 MR. HERNANDEZ: Thank you. 10 ACTING CHAIRPERSON RIORDAN: Thank you very much 11 for your testimony. And obviously you've been working. 12 (Applause.) 13 ACTING CHAIRPERSON RIORDAN: Okay. Let's go back 14 to Julia Scoville. 15 MS. SCOVILLE: My name is Julia Scoville, and I'm 16 a member of the Coalition for a Clean Environment and the 17 Grey Panthers, Long Beach. 18 As I member of the Grey Panthers, we're concerned 19 not only about the health of our members, because most of 20 them are seniors, but we're also concerned about the 21 health of the community. 22 Our members, you know, need to -- if they -- they 23 have already suffered many respiratory illnesses. So with 24 pollution affecting them, they're less able to take care 25 of themselves, and also it shortens their lives. We're PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 289 1 talking here about a shortened life versus a shortening of 2 profits. 3 We feel that the -- we believe that the MOU 4 should be rescinded for the welfare of the community and 5 the people living in there. 6 ACTING CHAIRPERSON RIORDAN: Thank you very much. 7 Thank you for your testimony. 8 (Applause.) 9 ACTING CHAIRPERSON RIORDAN: Okay. Is it Jose 10 Velasco? 11 MR. VELASCO: My name is Jose. Good evening. 12 THE INTERPRETER: Madam President, you'll need to 13 extend the time limit given the translation. 14 ACTING CHAIRPERSON RIORDAN: Sure. No problem. 15 MR. VELASCO: I had thought to say something 16 different tonight. But given what I've heard tonight, 17 I've changed my mind. 18 There have been a lot of technicalities going 19 back and forth. It's been said that a good faith effort 20 was made to have this MOU with the railroad companies. 21 Many people have felt that they have been defrauded by 22 this MOU. But we shouldn't get hung up on technicalities. 23 I believe in commerce, I believe in the expansion 24 of opportunities, and I believe that that can happen in 25 this case. And I believe in business and I want you to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 290 1 consider what would happen in 10, 20 or 30 years or 2 further than that what would happen with the children, who 3 will be the happy beneficiaries of all these services? 4 Those children will then be adults. The state will have 5 disappeared, perhaps the country itself. 6 With all due respect, I ask you to consider this, 7 to visualize this. And we would like for you to be 8 receptive and that you consider the possibility of 9 rescinding this MOU. 10 We would like for you to take everyone into 11 consideration so that you can have that environment of 12 trust. 13 Thank you very much. 14 (Applause.) 15 ACTING CHAIRPERSON RIORDAN: Thank you very much. 16 Okay. Susana Negrete. 17 MS. NEGRETE: Good evening. My name is Susana 18 Negrete. And I'm here tonight to speak in behalf of the 19 seniors that barely walk, really sick, thanks to living -- 20 for being exposed to the trains. I'm here to speak in 21 behalf of these children. They have voice but their voice 22 is silent. They can not defend by themselves. I'm just a 23 community member, and that's why I'm here tonight, because 24 I believe the MOU is something that shouldn't be. 25 The MOU, if it passed, if you take a decision to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 291 1 pass it, you will give them, the railroad, the power to 2 kill, the power to crash houses, to derailment without 3 anything, without fair -- without fear. And I don't think 4 it's fair. 5 I really would like you to -- before you take a 6 decision, go to any hospital and see those children dying, 7 suffering from asthma. Just take a minute and go and do 8 it. Can you imagine -- you have imagination. Everybody 9 does. And could you imagine a fish without water? How do 10 you think they feel or it feels. It's the same thing, the 11 children with asthma feels. 12 And I have a lot to say. But just think about it 13 and present it for the benefit of all of us. 14 Thank you. Good night. 15 ACTING CHAIRPERSON RIORDAN: Thank you for being 16 here. Thank you very much. 17 (Applause.) 18 ACTING CHAIRPERSON RIORDAN: Okay. Josie Gaytan. 19 MS. GAYTAN: Hello. My name is Josie Gaytan, and 20 I'm here representing my community for Mira Loma. And I 21 could stay here all night and tell you a lot of the things 22 that are happening in our community. But most of all I 23 just want you to consider, we're here for our kids, 24 we're -- actually we're fighting for health of our kids. 25 It is very sad to sit in our schools and see our P.E. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 292 1 teachers have to be carrying out with the kids all the 2 inhalers. 3 We have a car -- auto facility down in Mira Loma 4 that it grew -- it tripled the last year, and it's right 5 across from our high school. We've been asking and 6 talking to them and asking them to close one gate. They 7 have another gate open. And they just keep telling us 8 they're the good neighbors, they want to work with us. 9 And they cannot tell their trucks to get out -- come out 10 through the other gate. They keep coming out through that 11 gate. It's right across from where our kids play sports. 12 We keep asking them and asking them, and they just keep 13 telling us, "Yes, we're good neighbors. It's okay. We'll 14 do it" -- you know, "we'll just do it." But we're still 15 waiting. It's been more than two years that we've been 16 waiting wait for them to close that gate. 17 Our kids are on -- two years ago it was like 40 18 percent of our kids had asthma in our high school. Now 19 it's like 90 percent. It is very, very sad. You go and 20 see the kids and they can't even run a lap because of all 21 the cars, all the trains. 22 We sit in our -- on lights down Van Buren 23 Boulevard, and we have to wait from 20 to 30 minutes 24 because there's a train in the middle of our street 25 idling, because they're getting off the train to go and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 293 1 buy something to eat. 2 And actually we call and call. And they don't 3 even do nothing about it. It's been going on. We've been 4 calling and complaining. They sit there and idle for more 5 than 30 minutes. You could see them get off the train and 6 go and get something to eat. We have to drive like two 7 miles around each way in order for us to go around the 8 train that's idling. It is very sad. 9 If they want to be good neighbors, why don't they 10 go and be good neighbors somewhere else, because we don't 11 see them being good neighbors with us. Maybe they could 12 go down over there by where Arnold lives. Maybe they 13 could be feel they are good neighbors. 14 Thank you. 15 (Applause.) 16 ACTING CHAIRPERSON RIORDAN: All right. Thank 17 you very much. 18 All right. Angelo Logan, Sylvia Betancourt, 19 Barry Wallerstein, And Councilman Bill DeWitt. 20 MR. LOGAN: Hell, Madam Chair and Board members. 21 My name is Angelo Logan. I'm with the East Yard 22 Communities for Environmental Justice and the Modesta 23 Avila Coalition. 24 I'm a mechanic by trade. And about six years 25 ago, in the community that I grew up in we noticed that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 294 1 there was extreme amounts of cancer -- lung cancer, 2 bronchitis, asthma, and respiratory illnesses. Our 3 community is sandwiched between two intermodal yards and 4 the 710 freeway. The main concern was idling locomotives 5 and locomotives behind people's yards and homes. 6 I stopped working as a mechanic because I've seen 7 the clear injustice in our community, that our community 8 was disproportionately impacted with respiratory 9 illnesses; and that we believe that when idling 10 locomotives sit right next to your window, it's going to 11 have a major effect on your respiratory system. 12 So we started this organization. The first thing 13 that we did was we needed to address this environmental 14 injustice. And to do that we felt that it needed to be 15 really aggressive, but we needed to move on it because 16 people were dying, because children had asthma, children 17 were missing school days, children were being rush off to 18 the ER. And we felt that it needed to be done in a real 19 aggressive manner to reduce the amount of diesel emissions 20 from the trains. 21 And so in that case we felt that we needed to do 22 it in an aggressive manner, not it a slow way so that in 23 10, 15 years that we're going to get 20 percent reduction. 24 So this is our approach that we feel to reach 25 environmental justice, in which ARB has committed to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 295 1 environmental justice, that we needed to take aggressive 2 measures. 3 The MOU is not an aggressive strategy. The MOU 4 restricts and has been used as a tool to restrict 5 aggressive measures to protect the health of our children 6 and our families. 7 There was a couple of questions asked. You know, 8 is the MOU used as a big stick? The answer to that is 9 yes. It has already been used as a big stick. We've seen 10 that in state legislative committee hearings. We've seen 11 that in local rule-making stakeholder groups and hearings 12 as well. The railroad industry has used the MOU as a big 13 stick. They have used it as a tool to block aggressive 14 measures so that we can achieve environmental justice in 15 our communities. 16 You've heard testimony from several members today 17 that lived in my -- that live in my community where dozens 18 of people have died of cancer. And this is real personal, 19 this is a real issue for us in our community. You cannot 20 put a price tag on a person's life. 21 Another reason the MOU is not a good thing is 22 because of the vague terms. Ask the question. The vague 23 terms do not lay out, you know, what the MOU is. But both 24 the rail industry and ARB has said they knew what they 25 meant when they wrote up the MOU. Well, we want to know PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 296 1 what you meant. 2 Because several weeks ago a community member 3 documented an idling locomotive, smoking locomotive, 4 visible emissions. She called it in. She called in the 5 number that was provided by Catherine Witherspoon under 6 the provision of the MOU that indicates the visible 7 emissions. I called to follow up on that. Staff from ARB 8 had no answer to what the program was or what the 9 procedure was. 10 On last -- on this Tuesday BNSF also presented 11 the MOU and their programs. I asked them about this 12 particular provision. I said, "What is the program 13 procedures?" They said, "We don't know." So what do they 14 mean by language -- the vague language they use in the 15 MOU? 16 ACTING CHAIRPERSON RIORDAN: Angelo -- 17 MR. LOGAN: Our community is -- 18 ACTING CHAIRPERSON RIORDAN: Angelo -- 19 MR. LOGAN: I'll close up. 20 ACTING CHAIRPERSON RIORDAN: -- you've got to get 21 to a -- 22 MR. LOGAN: Okay. Our community is completely 23 opposed to it. The coalition we belong to is completely 24 opposed to it. We're a regional coalition. Forty cities 25 have sent in letters opposing the MOU. We want to submit PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 297 1 this for the record as well. 2 ACTING CHAIRPERSON RIORDAN: Okay. We'll make 3 that part of the record. 4 MR. LOGAN: We ask that you rescind the MOU. 5 Thank you. 6 (Applause.) 7 ACTING CHAIRPERSON RIORDAN: Okay. Thank you, 8 Angelo. 9 Sylvia is next. 10 Barry, I'm sorry. 11 I'm sorry, Barry. 12 Mayor Loveridge. 13 BOARD MEMBER LOVERIDGE: Those -- rather than go 14 to the clerk, those should go to the Board. 15 ACTING CHAIRPERSON RIORDAN: Well, the clerk will 16 get them to the Board. 17 ACTING CHAIRPERSON RIORDAN: Sylvia. 18 MS. BETANCOURT: Ready, set, go? 19 (Laughter.) 20 ACTING CHAIRPERSON RIORDAN: Ready, set, go. 21 MS. BETANCOURT: Good evening, Board members. My 22 name is Sylvia Betancourt. I was raised in the City of 23 Commerce directly between two rail facilities -- 24 intermodal facilities and the 710 freeway. 25 I want to start -- I know everyone's very tired. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 298 1 But I want to start by paying you a compliment. And, that 2 is, in keeping with environmental justice principles one 3 of the things that is very important is accessible 4 information in a language that people can understand, 5 especially by environmental justice communities, 6 communities that tend to be people of color, people who 7 speak another language, and that being Spanish tonight. 8 And I believe that the ladies are doing a great job. It's 9 a very difficult job to do. And I hope to continue to see 10 that. 11 (Applause.) 12 MS. BETANCOURT: That wasn't what I expected to 13 say tonight, but I was pleasantly surprised. 14 What I -- I'll keep it short, because I know that 15 there have been many people who have made excellent 16 points, many people who made the points that I wanted to 17 make. 18 And I do want to share with you about -- this is 19 something that is very personal to the community in the 20 City of Commerce and Wilmington, Carson, Mira Loma, San 21 Bernardino -- I could go on and on -- you know, where the 22 corridor is. 23 And a lot of the issues that we're facing are 24 things that we have to live with daily, that sound like 25 very simple terms. But people just throw around these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 299 1 terms like "health impacts". And it is a very real 2 experience with having to silently suffer with cancer -- 3 lung cancer, throat cancer. A family member of mine was 4 recently diagnosed with throat cancer. And I am in no 5 doubt -- I don't doubt that it was as a result of the 6 environment in which we live. 7 I also have to share with you that as a community 8 we are a very -- it's a great place to live aside from the 9 air that we breathe and the general quality of life that's 10 been diminished by railroads and the incredible amount of 11 truck traffic. 12 And in trying to make up for those problems one 13 of the things that we have to deal with is children who 14 miss so many days of school because they suffer with 15 asthma. And as they miss days of school, they fall behind 16 in their classes. And so one of the things that some of 17 my neighbors -- like Bob Eulh, for example, put together a 18 one-on-one tutoring program for these children, because 19 what else could be done to try to at least make up for 20 that. But the railroads aren't thinking of that. I don't 21 think -- I mean were not thinking in those terms when 22 we're talking about air. 23 And so what I want to ask of you tonight is that 24 you terminate the MOU. I ask that you retract your 25 opposition to our community-sponsored legislation and that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 300 1 you support it, because it was done in a transparent and 2 democratic manner. 3 I also ask that you. 4 ACTING CHAIRPERSON RIORDAN: I need to ask you 5 for a concluding statement. 6 MS. BETANCOURT: I ask that all of these steps be 7 taken in a meaningful public -- with meaningful public 8 participation. 9 Thank you for your attention. 10 (Applause.) 11 ACTING CHAIRPERSON RIORDAN: Thank you very much. 12 ACTING CHAIRPERSON RIORDAN: Mr. Wallerstein -- 13 Dr. Wallerstein. 14 DR. WALLERSTEIN: Yes. Good evening, Madam 15 Chair, members of the Board. Dr. Barry Wallerstein, 16 Executive Officer of South Coast AQMD. 17 I would like the Board to ask itself the 18 question: Why do the railroads go around the nation 19 entering into MOUs if the law is so solidly on their side? 20 The first MOU for South Coast is in lieu of regulations to 21 be implemented by the Air Quality Management Plan. 22 There is an MOU in Texas that was entered into 23 once the Texas Air Board, your counterparts, issued draft 24 regulations. 25 I would submit to you that the answer to the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 301 1 question that I asked is to avoid regulations, avoid 2 legislation, and to potentially avoid adverse court 3 decisions since the law is not squarely on their side. 4 This issue of parallel letters has been raised 5 all night. I believe it's an acknowledgement that the 6 agreement is not clear. You can't simply say, "We know 7 what we mean," meaning the staff, "the railroads know what 8 we mean." If the Board received a motor vehicle 9 regulation -- because this is analogous to a regulation -- 10 from your staff and there was a lack of clarity, that 11 required side letters, I believe that you would send that 12 regulation back, have it reworked, and brought to the 13 Board when it is clear. Our regulations at South Coast, 14 the Board has to find that they're clear. 15 Is the Board also aware that if there is a 16 dispute in the areas of meaning, interpretation, and 17 enforcement of the agreement, that it goes to a 18 three-person panel, one from CARB, one from the railroads, 19 and one mutually agreed? Are you turning your enforcement 20 over to a mutually agreed person? Is that the proper 21 thing to do? That is not what we do with stationary 22 source regulations. 23 On the issue of emissions. Most of the emission 24 reductions come from the anti-idling devices. You've 25 heard that they pay for themselves in two to three years. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 302 1 Please think about the high cost of diesel fuel. The 2 quote from the railroads when this agreement hit the press 3 initially was "We were going to do these things anyway." 4 Current versus previous release clause. They're 5 both unacceptable. When Catherine called me to tell me 6 about the new MOU, she said, "It has a new termination 7 clause. You won't like it. It's worse than the 8 original." As has been mentioned, the current -- both 9 MOUs are being used in terms of their content and the 10 release clause: To stymie legislation, draft rules by our 11 staff, the no-net increase in the plan for Los Angeles. 12 Yes, it is a big stick and, yes, they're using it and, 13 yes, this Board if you approve this MOU is about to become 14 the expert witnesses as to why others should not move 15 forward. We would ask you not to do that. We can do 16 better. 17 We have joint legislation approved, because we 18 brought it -- the money's coming to your Board to 19 implement the program. We have a draft regulation 20 approved. 21 And you will receive, lastly, from your staff an 22 intermodal rule in just a month or so. There are better 23 ways to do this. Please rescind the MOU. Please get rid 24 of the termination clause. 25 (Applause.) PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 303 1 ACTING CHAIRPERSON RIORDAN: Thank you. And I 2 appreciate your staying within your time frame. 3 Councilman Bill DeWitt. 4 COUNCIL MEMBER DeWITT: Thank you, Madam Chair. 5 Bill DeWitt Council Member, City of South Gate. First 6 elected 1980. Been around a long time. 7 I'd start off by saying I think the railroads 8 have done a hell of a fine job. Let's wake people up here 9 for a minute. Scratch that. 10 (Laughter.) 11 COUNCIL MEMBER DeWITT: When they switched from 12 coal and oil in steam locomotives in 1947 and '48 the 13 Union Pacific Railroad used to take those cinders out of 14 my eye. They had a doctor that did that. My property is 15 right next to the railroad tracks, to one of their 16 railroad tracks, and so I can identify. 17 I think there -- there have been some 18 improvements. But, you know, with stationary -- with 19 mobile sources, our automobiles, our trucks, our diesel 20 trucks have improved greatly over the last number of 21 years, and the technology is there. I was in Europe this 22 last summer and had a Mercedes Diesel. And it's not 23 available in this country. But it was clean. You can 24 hardly tell it was a diesel other than the fuel you put in 25 the darn thing. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 304 1 And -- but, anyway, I only have a few minutes 2 here and I can't read the clock here. 3 The cities here -- and I attended one of these 4 hearings -- and I apologize. I wasn't here all day. And 5 I want to thank you folks for being here, because it's 6 been a long, arduous day for you, I'm sure, and I 7 appreciate you being here. 8 But from this hearing and the one in August that 9 I attended over in Commerce -- and Bob's city here. Now, 10 it's hard to follow this guy because he -- he really hit 11 the nail on the head. Thank you, Bob. But not a single 12 city has recommended that you approve this MOU, at least 13 from what I've heard in these different hearings. Long 14 Beach -- now, South Gate's a little city. We only have 15 110, 120,000 people here. We have multiple rail tracks 16 that go through us. On the west side of the community is 17 this Alameda Corridor thing. And I do cough a little bit 18 from time to time. 19 But I think you folks can do better. Years ago 20 the railroads owned this state -- a hundred years ago they 21 owned this state. Mr. Huntington, Stanford, all the 22 different people that -- the railroad magnates, they 23 controlled the state. They passed a lot of regulations at 24 that time to ensure that they would be -- you know, have 25 their business going. And we need the railroads, we need PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 305 1 freight moved, there's no question about that. 2 But I think really what's going on here is you 3 folks are on the line. Your credibility is in question 4 here because of -- and a lot of these folks hearing some 5 things that really maybe didn't relate to it exactly, to 6 the MOU. But really it's a legal document. And you folks 7 are on the line. If you fail us on this, then the public 8 and the electeds in the state and the Legislature -- 9 Martha Escutia, who I work with very closely on different 10 things -- they're going to look at you guys and say, "Hey, 11 you don't give a damn about it." 12 Now, I realize you have some legal constraints, 13 and that is a problem. But I do think you need to revisit 14 this thing and start off from square one and cut a little 15 better deal. 16 I used to follow behind diesel trucks and buses, 17 and all the black smoke came out back in the forties and 18 early fifties. And now you go behind a lot of -- the 19 newer diesel trucks on the highway and they're pretty -- 20 they do a pretty good job. It can be improved upon. And 21 I worked on Fairbanks Morris engines when I was in the 22 coast guard at sea. And those were old motors. And 23 they -- they can be improved upon. I'm sure the railroad 24 can do a better job. 25 And with that, I thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 306 1 ACTING CHAIRPERSON RIORDAN: And I thank you. 2 And that was our last speaker. 3 Thank you very much. 4 You know, I had asked, and the railroads had 5 indicated they would stay, and I see them out there. 6 Regardless of the issue that's before us, I think 7 all of you have heard some of the concerns from the 8 community that really don't relate to the MOU. But the 9 idea of response and trying to build that 10 corporate-community relationship is so important, because 11 when it comes time to then go to an MOU or any sort of 12 contract or regulation even, you are climbing up a very 13 steep hill because of what somebody did in prior years. 14 And there's nothing I can do to correct it, but you can. 15 And I think you can see where the outreach and hopefully 16 in the process of outreach you can build better 17 relationships with the communities. And I think it can be 18 done. I mean there are many corporations that do it and 19 continue to do an excellent job. 20 But you need to understand that there are little 21 and big irritants, that they range from a whole variety of 22 things. But it's obvious to me that, separate from the 23 MOU, that you need to do. I mean that is just so 24 important to the long-term success of any relationship 25 with the State of California. And I know you've got, you PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 307 1 know, another 49 states that you need to deal with. But 2 here it's very clear you need to build those community 3 relationships. 4 All right. Having said that, I believe that we 5 probably had very adequate testimony on all sides. And 6 while I know some might want to give a wrap-up, I think at 7 this time staff is the best to perhaps do that, and maybe 8 a reiteration of the positive aspects of your position; 9 and if there's anything beyond what you've heard tonight 10 that you've thought of that this Board needs to hear from 11 you. 12 EXECUTIVE OFFICER WITHERSPOON: Well, I think 13 we've had a painful lesson all evening, that even the best 14 intentions and most sincere actions, and what we believe 15 are absolutely legally justified actions, don't always 16 overcome what is a profound issue of mistrust, first of 17 the railroads and then of us for going behind closed doors 18 and talking to them. And all negotiations happen that 19 way. But we are hearing, loud and clear, that when you go 20 behind closed doors with parties who have such issues, 21 that it spreads to you as well. And that it's been a good 22 thing that we've gone back to have these workshops and to 23 have this hearing tonight. And we take all that input 24 seriously as to how it will affect our, staff's outreach 25 in the future. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 308 1 Though nothing we've heard tonight has changed 2 our fundamental conclusion that to get emission reductions 3 in any reasonable time frame -- and although the term of 4 the MOU is 15 years, the emission reductions are achieved 5 within the first three and sustained -- that there is no 6 other path to get those same reductions. And so we 7 continue to believe it was and is a worthy enterprise, 8 even though we regret very much the degree of discord that 9 it has engendered. 10 We also agree with many of the comments, that the 11 terms should be clarified for the benefit of parties not 12 present, not with the same level of comfort and confident 13 in what was meant. And if you decide to continue on, that 14 would be our top priority to get to work on right away. 15 I think also there's room in that clarification 16 exercise to examine the release clause and its clarity. I 17 don't know how much room there is to change it 18 fundamentally, but we can certainly draw out the 19 circumstances under which it does and does not apply. And 20 we heard some of those tonight, about CEQA, about brand 21 new facilities, about things that hadn't come up in our 22 discussions. And so we can certainly delineate more of 23 those. 24 And I heard too a lot of "prove it, show us." 25 And one suggestion to you was "show us by throwing this PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 309 1 out." And another suggestion was "show us by watching 2 what the railroads do and keeping a close eye on it." You 3 have at all junctures the opportunity to terminate this 4 MOU at any time you feel that it is not producing 5 significant outcomes worthy of pursuit. So that remains 6 open to you whether you take that option tonight or not. 7 So I guess in sum I would just repeat the staff's 8 recommendation. We hope that you will affirm the decision 9 to enter into an MOU, and that you do direct us in 10 whatever other direction you'd like to give us, to proceed 11 with a clarification letter, including examination of the 12 release clause, to report regularly back to you. And we 13 take some guidance from you on -- it is the six-month 14 interval and anywhere thereafter regularly enough, and to 15 redouble our efforts one outreach with the community. 16 ACTING CHAIRPERSON RIORDAN: Yes, a question to 17 staff. Yes. 18 BOARD MEMBER LOVERIDGE: Yes. As I understand, 19 the MOU is now in effect. I guess the question I would 20 offer is: Why should we vote in favor of it without 21 having the kind of clarifications, of the kind of 22 specifics, and also clarification then regarding the 23 release clause? Why should -- why is it necessary for us, 24 in advance of that information, in advance of that 25 clarification, to vote tonight? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 310 1 EXECUTIVE OFFICER WITHERSPOON: It's not. And if 2 you don't vote the MOU does stay in effect. I just meant 3 that, you know, in contrast to taking an action against 4 the MOU. Because we do think that it should remain in 5 effect while the clarification is going on, because 6 there's no good reason to halt the installation of 7 anti-idling devices, to halt the purchase of low sulfur 8 diesel fuel, to halt the opacity provisions while we're 9 clarifying predominantly, you know, under what conditions 10 will bring enforcement action, you know, and under what 11 conditions railroads might walk away. I mean those were 12 really the terms that caused people the most grief. But 13 if you're still uncomfortable with it, it's not necessary 14 for the vote -- the Board to vote either way, up or down, 15 because it is in effect, as you pointed out. 16 ACTING CHAIRPERSON RIORDAN: Okay. Yes, Ms. 17 Kennard and then Dr. Gong have questions for staff. 18 BOARD MEMBER KENNARD: Thank you, Ms. 19 Witherspoon, for that very, very eloquent summary. 20 There's one remaining question that I have, which 21 has been the -- kind of the assertion that the existence 22 of the MOU stymies legislation that would further bolster 23 the railroads' progress toward better air quality. 24 EXECUTIVE OFFICER WITHERSPOON: Well, legislation 25 provokes a wide range of policy, economic and political PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 311 1 questions, which are debated by all the stakeholders in 2 the process. And the Governor arrives at his positions 3 and we provide technical advice and policy recommendations 4 to him. And he approves the positions before they are 5 announced in the Legislature. And so while the MOU would 6 be one factor in: Is this legislation necessary? Have we 7 already covered this? Does ARB already have a regulation 8 that addresses the same subject area? -- it wouldn't be 9 the only consideration. Some of the things that have 10 weighed in to the administration's positions in the past 11 are: What kind of relationship does this administration 12 wish to have with corporate entities? Does he wish to be 13 confrontational or collaborative? And so you're seeing a 14 philosophy reflected and not just the facts of: Is the 15 MOU or not at stake? We believe that the MOUs are at 16 stake and it's one factor that should be considered. But 17 other factors come into play. 18 ACTING CHAIRPERSON RIORDAN: Dr. Gong. 19 BOARD MEMBER GONG: This reminds me of a World 20 Series game. 21 (Laughter.) 22 BOARD MEMBER GONG: I forgot my question. 23 (Laughter.) 24 BOARD MEMBER GONG: I remember it. I remember. 25 I'm sorry. I'm sorry. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 312 1 Okay. I'm awake now. 2 Seriously, I'm awake. 3 In terms of clarification of the MOU terms, how 4 soon, how fast can that come about for the Board to 5 actually see this and also for the community at large? 6 Are we going to have to wait six months, a year? 7 EXECUTIVE OFFICER WITHERSPOON: No, I would say a 8 couple of months probably. We're going into the holidays. 9 So getting meetings scheduled will be our biggest problem. 10 But we've gotten a pretty good delineation of the terms 11 from all the comments we've received that people consider 12 problematic. And so, you know, our work is set out for 13 us. And I think many of those terms we can rush through 14 quite expeditiously. And then, you know, the sticking 15 points might be areas where the exact understanding on 16 both of our sides is a little different and we have to 17 talk about it a little bit. And also the release clause, 18 you know, how much of that needs to be clarified? Have we 19 sort of thought through every conceivable outcome? 20 Because some came up as surprises that we had not 21 anticipated or thought through. And the railroad said as 22 much and the staff said as much. So -- 23 BOARD MEMBER GONG: I guess the reason I asked 24 that is I'm concerned that I don't want to blow this, you 25 know. I don't want to make a premature termination of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 313 1 something that might be useful if we understand certain 2 terms and if they help us to better understand the actual 3 procedures. 4 And I'm just, you know, opening this up for 5 discussion really. 6 ACTING CHAIRPERSON RIORDAN: Okay. And I think 7 what maybe -- Ms. Witherspoon, you think about two months? 8 EXECUTIVE OFFICER WITHERSPOON: I'm looking at 9 the railroads. They're slower than we are. 10 ACTING CHAIRPERSON RIORDAN: Ah, I'll bet they 11 could be fast if they needed to be. 12 EXECUTIVE OFFICER WITHERSPOON: So January, 13 February is what I'm thinking because of Thanksgiving and 14 Christmas. 15 ACTING CHAIRPERSON RIORDAN: Yeah. 16 MR. MARCKWALD: I mean I think given where we are 17 in the calendar, where the -- many conflicting things that 18 are going on in the goods movement area, I think that four 19 months is realistic. I don't think two months is 20 realistic. 21 ACTING CHAIRPERSON RIORDAN: So we'll settle on 22 three. 23 MR. MARCKWALD: Well -- 24 ACTING CHAIRPERSON RIORDAN: Three. That gives 25 you -- that gives you plenty of time. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 314 1 BOARD MEMBER BERG: But with the holidays -- I 2 mean let's not set it up so it can't be done. I don't 3 want to come back. 4 ACTING CHAIRPERSON RIORDAN: No, It could be 5 done. It can be done. 6 MR. MARCKWALD: That's our concern and that's why 7 we came up with four. But you all need to do what you 8 need to do. 9 ACTING CHAIRPERSON RIORDAN: It can be done. If 10 you put your mind to it, it can be done. 11 BOARD MEMBER GONG: You should have high priority 12 on it. 13 EXECUTIVE OFFICER WITHERSPOON: Just so I 14 understand. You're looking for a report back at our 15 January Board meeting, which is at the end of the month. 16 So all of -- three months is all of November, all of 17 December and all of January. 18 So we would be back to you with a report at the 19 January Board meeting, which I think is the 27th and 28th 20 of January. 21 ACTING CHAIRPERSON RIORDAN: All right. 22 Questions for staff? Further questions for staff? 23 Yes, Ms. Berg. 24 BOARD MEMBER BERG: Just piggybacking on Ms. 25 Kennard's. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 315 1 I'm concerned about prior agreements that have 2 been made. We've heard some testimony of some existing 3 either MOUs or agreements that have been made with the 4 railroads that are working or they're certainly in 5 conversation and they're going forward. 6 What will the ARB's MOU do to these agreements 7 that have been in place? And they're not referring to the 8 one at South Coast that has run out. But we heard about 9 one up in San Luis Obispo and some of the others. What is 10 going to take place or what is your understanding that the 11 ARB's MOU will have effect on those? 12 DEPUTY EXECUTIVE OFFICER SCHEIBLE: We believe 13 that the MOU has no effect on those agreements. Because 14 if an agreement was mutually agreed to by the railroads 15 and another party, that stands. That doesn't -- there's 16 nothing that's in the current MOU that says that in any 17 way has a cross-effect with this MOU. 18 BOARD MEMBER BERG: And -- 19 DEPUTY EXECUTIVE OFFICER SCHEIBLE: And the same 20 way as if the railroads enter into a new agreement to do 21 something that's over and above the MOU with another 22 party. The way that the release clause comes into effect 23 is when someone takes an action that's akin to a 24 regulation or it's compulsory on the railroad to follow 25 the action and to over -- with the MOU, not where there's PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 316 1 a mutual agreement or a contract or an exchange of money 2 or anything like that. And we'll be happy to clarify that 3 that -- you know, that that is the case. And if that's 4 not the case, I would be extremely surprised, because we 5 tried to -- a basic principle in the MOU was things that 6 had already happened and were happening today, things that 7 were being already enforced were not things that we had to 8 cover in the MOU. We wanted to get additional new 9 actions. 10 ACTING CHAIRPERSON RIORDAN: Thank you. 11 Other questions for the Board at this time? 12 All right. Let me then go back to the process. 13 Closing the record, I think, staff, unless 14 there's final comment on your behalf. 15 All right. Since all the testimony and written 16 submissions and staff comments for this item have been 17 entered into the record and the Board has not granted an 18 extension of the comment period, I'm officially closing 19 the record on this portion of the agenda, Item No. 05-9-1. 20 Written or oral comments received after the comment period 21 has closed will not be accepted as part of the official 22 record on this agenda item. 23 We need now to go to ex parte communications. 24 So the audience knows, we list on the record 25 persons, after the notice of publication of this item, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 317 1 that we have spoken to. We're perfectly permitted to be 2 able to do this. We just make it open and very clear to 3 whom we've spoken. 4 Supervisor DeSaulnier. 5 BOARD MEMBER DeSAULNIER: Thank you, Madam Chair. 6 All of the conversations I'm about to detail, the 7 contents of them were consistent with testimony we heard 8 today from the same individuals and organizations. 9 On October 5th I met with Kirk Marckwald 10 representing the Association of American Railroads in my 11 office in Concord, California. 12 On October 17th, by phone, I spoke with Bonnie 13 Holmes-Gen from the American Lung Association, Don Anair 14 from the Union of Concerned Scientists, again consistent 15 this Ms. Holmes-Gen's testimony today. 16 On October 19th I had phone call with Jared 17 Ficker from California Strategies on behalf of the South 18 Coast Air Quality Management District and NRDC. 19 On October 26th I had another phone call from 20 NRDC and the Coalition for Clean Air. 21 On October 26th I also had a phone call from 22 Angelo Logan and Sylvia Betancourt with the Modesta Avila 23 Coalition. 24 On October 27th, today, I met with Mark Stehly 25 from BNSF before the meeting. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 318 1 And today I also met again with Kirk Marckwald 2 and Michael Barr, both representing the Association of 3 American Railroads. 4 ACTING CHAIRPERSON RIORDAN: Okay. Thank you 5 very much. 6 Ms. Berg. 7 BOARD MEMBER BERG: Yes. All of my meetings also 8 were consistent with the testimony today. 9 And I'll start on October 3rd when I met at Ellis 10 Paint with Modesta Avila, seven members. And I will 11 provide that list for the record. 12 On September 21st I also met at Ellis Paint with 13 the Association of American Railroads on. 14 October 21st I also had a phone call with Dr. 15 Barry Wallerstein and four other members on behalf of 16 South Coast Air Quality Management District. And I'll 17 provide that list for the record. 18 On October 25th I had a telephone conversation 19 with Sandy George, lobbyist for UP. 20 On October 26th, I had a call with NRDC with 21 Melissa Lin Perrella and Adriano Martinez and Coalition 22 for Clean Air, Candice Kim. 23 I also had a phone call with three private 24 citizens, Marilyn Belinder, Elizabeth Rosenthan, and 25 Melinda Rodman, all in support of the MOU. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 319 1 On October 27th, today, I met with the 2 Association of American Railroads at Ellis Paint. I had a 3 telephone conversation with Angelo Logan from Modesta 4 Avila. 5 And today I had -- ran into Jose Delgado, 6 representative for Linda Sanchez -- Congresswoman Linda 7 Sanchez. And also with Carl Farrington with the South 8 Coast Interfaith Council. Both of those conversations 9 were consistent with the testimony or letters that they 10 presented on today. 11 ACTING CHAIRPERSON RIORDAN: Thank you very much. 12 Dr. Gong. 13 BOARD MEMBER GONG: Not that many people wanted 14 to talk to me. 15 (Laughter.) 16 BOARD MEMBER GONG: I did have an in-office 17 meeting with Kirk Marckwald and Michael Barr, Association 18 of American Railroads. They liked me so much they called 19 me back on the telephone October 25. 20 And on October 6th I had a telephone conversation 21 with Bonnie Holmes-Gen, American Lung Association; Diane 22 Bailey, NRDC; and Don Anair, Union of Concerned 23 Scientists. 24 On October 24th, I met with Angelo Logan, Jesse 25 Marquez and Sylvia Betancourt, Modesta Avila Coalition in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 320 1 my office. 2 And, lastly, on October 25 I had a telephone 3 conversation with Pom Pom Ganguli, Senior Manager, Public 4 Affairs office at the South Coast Air Quality Management 5 District. And he did not speak today. But his comments 6 were similar to what Dr. Wallerstein said. 7 And all the other comments were consistent with 8 their testimony today. 9 ACTING CHAIRPERSON RIORDAN: Thank you. 10 I met with, on the 29th of September, Kirk 11 Marckwald from California Environmental Associates working 12 with the Association of American Railroads. 13 And I follow-up meeting again with Mr. Marckwald 14 and Michael Barr from Pillsbury, Winthrop, Shaw & Pitman, 15 again representing the Association of American Railroads. 16 And their conversations with me mirrored clearly what they 17 testified to today. 18 BOARD MEMBER KENNARD: None. 19 ACTING CHAIRPERSON RIORDAN: Mayor Loveridge. 20 BOARD MEMBER LOVERIDGE: Multiple conversations 21 with Barry Wallerstein. 22 And conversations with Kirk Marckwald and Michael 23 Barr. 24 I will provide the exact dates for the record. 25 ACTING CHAIRPERSON RIORDAN: Thank you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 321 1 Ms. Patrick -- Supervisor Patrick. 2 BOARD MEMBER PATRICK: Thank you, Madam chairman. 3 On October 13th I had a conference call with 4 Bonnie Holmes-Gen of the American Lung Association, Diane 5 Bailey of NRDC, and Don Anair of the Union of Concerned 6 Scientists. 7 On October 24th a phone conversation with Jared 8 Ficker of California Strategies on behalf of the South 9 Coast AQMD and NRDC. Also Peter Greenwald, Barry 10 Wallerstein and Pom Pom Ganguli as well. 11 On October 24th I met with Mark Stehly of the 12 Burlington Northern Santa Fe Railroad. 13 On October 26th I had a phone call with Angelo 14 Logan and Sylvia Betancourt of Modesta Avila Coalition and 15 also Marisela Knott of the East Yard Communities for 16 Environmental Justice. 17 I had two phone conversations with officials from 18 the San Joaquin Valley Air Pollution Control District. On 19 the 24th of October I spoke with Dave Crow, who is the 20 RAPCO, and Seyed Sadredin, our assistant APCO about the 21 provisions that are in the MOU. 22 And on 10/26 I had an additional phone 23 conversation with Seyed Sadredin. 24 ACTING CHAIRPERSON RIORDAN: Okay. Thank you. 25 Board members, now that we have finished the ex PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 322 1 partes, I'm going to suggest that someone form a motion. 2 And then it's a little easier to then have discussion and 3 debate on what our next step might be. 4 So I would entertain a motion. 5 Supervisor Patrick. 6 BOARD MEMBER PATRICK: Thank you, Madam Chairman. 7 I do think that we can better organize our 8 discussion if we have a motion on the table. And so I 9 would like to refer back to staff's recommendation, which 10 was to support the agreement, and direct them to clarify 11 terms in the agreement, which would come back to us in 12 January of '06, and then report back in six months and 13 annually thereafter, unless the Board chooses otherwise. 14 And also Ms. Witherspoon mentioned, you know, 15 redoubling the efforts to work with the communities in 16 local air districts and so forth. And there's no doubt 17 that it's incumbent upon us to do that, to work with these 18 local groups who all are living near intermodal facilities 19 and rail facilities, that we need to work with them and 20 encourage the railroads to work with them as well. 21 ACTING CHAIRPERSON RIORDAN: All right. Is there 22 a second to the motion? 23 Let me step aside and turn the gavel over to you. 24 I'll second the motion for discussion. 25 I'll take the gavel back. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 323 1 (Laughter.) 2 ACTING CHAIRPERSON RIORDAN: Discussion, Board 3 members? 4 Ms. Berg? 5 BOARD MEMBER BERG: No, I'm sorry. 6 ACTING CHAIRPERSON RIORDAN: Mayor Loveridge. 7 BOARD MEMBER LOVERIDGE: I guess the point of my 8 strongest disagreement with the motion is the word 9 "support". I thought we were going to wait until we heard 10 the results of the clarification and the release. 11 Let me just make three comments, and then if I 12 had a preference position. 13 First I thought tonight was about as strong and 14 powerful kind of statement of the kind of problem that 15 we're trying to address. I thought we understand much 16 better about the City of Commerce and what's happening in 17 Long Beach and what's happening in Mira Loma and others. 18 We're talking about sort of abstract studies. We're 19 talking about public face tonight we see here before us, 20 and I thought it was quite powerful. So that's one story 21 that I thought we heard tonight. 22 The second story is I found a dismaying story 23 and, that is, the clash between the two best districts 24 that do the work of improving air quality in the country; 25 clash between the CARB Board, which I'm on, and the South PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 324 1 Coast Board, which I represent. 2 It's disappointing to see the two best in the 3 business at odds, and my hopes that it is not repeated. 4 I think the question of why that we are at odds, 5 why the clash occurred is found in the process, which was 6 much too closed, much too limited. I think we now agreed 7 upon that as a board that this process now would be much 8 more opened. And I think if we had ran open process, we 9 wouldn't have the kind of conflict that we witnessed 10 tonight. 11 If I had my own preference, I mean I would 12 support the position of the South Coast District, which 13 offered the request -- to formally request that we rescind 14 the MOU. And I think it is important to recognize that 15 the South Coast is doing this because it represents a 16 number of people because of the air quality problem, but 17 most of all from the fine testimony you heard tonight. 18 ACTING CHAIRPERSON RIORDAN: Okay. Thank you, 19 Mayor Loveridge. 20 (Applause.) 21 ACTING CHAIRPERSON RIORDAN: All right. Dr. 22 Gong. 23 BOARD MEMBER GONG: Well, I've intently read and 24 listened to as many sources as I can. I've asked 25 questions, as you know, trying to learn more and get out PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 325 1 some information for me to make up my mind. I've talked 2 to the staff, and I appreciate the great amount of work 3 they've done with the railroads. And to a certain extent 4 I also thank the railroads for coming to the table and 5 doing what they can and offer what they can. 6 Some of my comical comments actually do have some 7 ring of truth to them. But -- you probably don't remember 8 it. 9 (Laughter.) 10 BOARD MEMBER GONG: And you probably don't 11 remember the questions I keep asking. No one seemed to, I 12 don't know, get it. So I guess what I feel is that 13 basically there's two worlds here, and there's so much 14 distrust in between, as was pointed out. Nothing I can do 15 to change that. 16 But the reality is the MOU is now in existence. 17 And the question I have is -- sure, we have a problem of 18 process. And I think that was eloquently presented by 19 Mayor Loveridge, and I certainly support what he said 20 about that aspect. If we had to do things over again, 21 things might have come out much differently. 22 But, again, as I mentioned before, the reality is 23 we have an MOU. I can see certain positive aspects of it 24 and I can see negative aspects. You heard my comments 25 during this whole all-day session. And I don't even PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 326 1 remember what they were now. But the points are -- I 2 guess is that I don't want to squash something 3 prematurely. I want to -- I'm trying to be very logical 4 about this. I'm not a lawyer. I'm not a legislator. And 5 obviously there's difference of opinions in these two 6 worlds. Okay? So rather than go on, I would say that at 7 this point in time if -- if I had to vote tonight to 8 continue with the MOU I'd probably say I have some doubts 9 about it, and I would probably vote nay at this moment in 10 time. But I would like to point out that if we can get 11 more clarification, that's positive hopefully, then we can 12 go ahead and review this process later rather than bury 13 this thing tonight. 14 I just am concerned about blowing it, as I said 15 before. 16 ACTING CHAIRPERSON RIORDAN: Thank you, Dr. Gong. 17 Ms. Berg. 18 BOARD MEMBER BERG: Well, really I can echo my 19 support on both of -- all three of my colleagues actually. 20 I think this has probably been one of the most difficult 21 issues for me personally. I have had quite a few meetings 22 on both sides of the fence. 23 And I also want to mention, however, that if this 24 was strictly a South Coast air quality issue, I would feel 25 more compelled to vote no. The problem that I have is it PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 327 1 does have to do with the rest of the state and we do have 2 a lot of support letters that are from other parts of the 3 state. And I don't think we can just ignore those because 4 we have not heard public testimony here today. They did 5 send those letters in within the public comment. And I 6 think that we need to just also be aware of that. 7 I hate to see this so divided. I am concerned as 8 well that we're voting on something that we're asking for 9 a lot of clarification. And I too would support coming 10 back in three months and getting the information so that 11 we would have the clarification rather than move forward 12 with a vote tonight. 13 ACTING CHAIRPERSON RIORDAN: Supervisor Long -- 14 it's late tonight. 15 BOARD MEMBER DeSAULNIER: I thought you were 16 going to call me Mayor Longstreet. 17 (Laughter.) 18 ACTING CHAIRPERSON RIORDAN: No, that was 19 Longville. He was an assemblyman for a while. He was a 20 good fellow. 21 Supervisor DeSaulnier. 22 BOARD MEMBER DeSAULNIER: Well, I think I've set 23 a record for being quiet. 24 ACTING CHAIRPERSON RIORDAN: You have. You've 25 been very good. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 328 1 BOARD MEMBER DeSAULNIER: Well, I asked a 2 question six hours ago and I still haven't heard the -- 3 (Laughter.) 4 BOARD MEMBER DeSAULNIER: No, at this point I 5 know the answer. 6 First off, Madam Chair, I want to thank you for 7 chairing this evening in the way you did, with the good 8 humor and how cordially you were in moving things along. 9 And I think members of the public would recognize that. 10 I also want to thank someone who's not here, 11 Cindy Tuck, who actually suggested this meeting and the 12 meeting in Sacramento to try to fix at least some of the 13 perceived problems. 14 And I want to thank our staff. For those of you 15 in the audience who've this may be the first CARB meeting, 16 I've been on this Board -- I think three of you have been 17 on here longer -- but almost a decade. And I have no 18 doubt that our staff entered into these negotiations with 19 the greatest expectations of doing the best for you as 20 breathers. And I feel the same way about Dr. Wallerstein 21 and his staff. I think Ron's comments were right on. And 22 It's too bad we're at this point. 23 However, I just am a person who believes 24 sometimes in democracy the process is as important as the 25 product. And from my perspective, I've struggled with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 329 1 trying to reach some kind of middle ground. But what I've 2 been told by representatives of the railroad, this was 3 sort of an all or nothing type of thing. And what I hear 4 from my colleagues is they would like to pursue more. So 5 maybe there's something in the meantime. 6 So having said that, I wouldn't be able to 7 support the motion. Although I think -- I know that it's 8 being made in the best spirit of this Board. It's just 9 been really difficult. And I think a lot of -- if we are 10 to go ahead, either tonight or in three months, that it's 11 really incumbent on the railroad industry, because it's 12 about more than just this issue, that everything you've 13 promised you actually deliver. Because the respect that 14 this body and the agency has is too important not to have 15 that delivered at the end. 16 So with all due respect, I won't vote for the 17 motion that's on the floor. I'd be happy to listen to 18 more discussion about any kind of modifications. 19 ACTING CHAIRPERSON RIORDAN: Thank you, 20 Supervisor DeSaulnier. 21 Just let me ask Ms. Kennard, if you have any 22 questions? 23 BOARD MEMBER KENNARD: No. 24 ACTING CHAIRPERSON RIORDAN: You don't have to. 25 But I'm going to go back to Ms. Berg, who -- that will be PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 330 1 her second time -- and I want to be fair, I want to be 2 fair. 3 BOARD MEMBER KENNARD: I very much -- I very much 4 appreciate it, and in the interests of the lateness of the 5 night. And I do appreciate all of you who came and -- at 6 various times and those of you who stayed. And I want to 7 especially address the young students who took their time 8 out to come here. I think this is a great opportunity to 9 learn how the democratic process in fact works. 10 But I do want them to understand that there 11 should be no lack of clarity as to the intent of this 12 Board, the mission of this Board and the sincerity of the 13 staff. We are all driven toward the same goal and, that 14 is, cleaning our air. 15 I'm as troubled as I think everyone else on this 16 podium. I don't think there is an easy answer at all. 17 I'm looking for one of my colleagues to come up with some 18 brilliant solution to get us out of this dilemma. 19 But my overriding concern is that we should never 20 be in this predicament, at odds with our partners at South 21 Coast. And I think that's the biggest tragedy that 22 brought us here today. And I hope that going forward we 23 can find a way to reconcile that in a more positive way 24 for the same aim. 25 ACTING CHAIRPERSON RIORDAN: Ms. Berg. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 331 1 BOARD MEMBER BERG: I'd like to move to table the 2 motion and to come back in January with further 3 clarification. 4 ACTING CHAIRPERSON RIORDAN: Okay. There's a 5 move to table. 6 Is there a second? 7 BOARD MEMBER KENNARD: I'll second that motion. 8 ACTING CHAIRPERSON RIORDAN: Okay. Discussion? 9 This is to table the motion. 10 Do you have -- I think you can -- can you discuss 11 a tabling? I believe you can. I can't remember, to be 12 honest with you. 13 ACTING GENERAL COUNSEL JENNINGS: -- can't 14 tell -- 15 ACTING CHAIRPERSON RIORDAN: And I can't 16 remember. But I'll -- Chairman's rules right now. 17 BOARD MEMBER LOVERIDGE: Madam Chair -- 18 ACTING CHAIRPERSON RIORDAN: Pardon me? 19 BOARD MEMBER LOVERIDGE: Can we what? 20 ACTING CHAIRPERSON RIORDAN: Discuss the table. 21 BOARD MEMBER LOVERIDGE: What point of order? I 22 guess the question of tabling, I thought you simply put it 23 on file or not. Wouldn't the more proper motion be to ask 24 what we want back, that is, clarification and comments on 25 the release clause. I think that was -- rather than -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 332 1 ACTING CHAIRPERSON RIORDAN: You could table it 2 to a specific time and ask for the clarifications to come 3 back. I think that would be -- 4 BOARD MEMBER BERG: Also amend. 5 BOARD MEMBER LOVERIDGE: And the release -- there 6 was two things that we were going to ask for additional 7 information on. 8 ACTING CHAIRPERSON RIORDAN: Two things? 9 EXECUTIVE OFFICER WITHERSPOON: It's actually 10 one. It's a clarification but with special emphasis on 11 the release clause. 12 ACTING CHAIRPERSON RIORDAN: Yes. And there's -- 13 isn't there something else in there that -- 14 EXECUTIVE OFFICER WITHERSPOON: Well, the 15 annual -- the semiannual and annual reports back and 16 redoubling our efforts. But I think in January you'll 17 also be making a decision about proceeding with the MOU 18 generally once clarified, is what I'm hearing. 19 ACTING CHAIRPERSON RIORDAN: Well, that's fine. 20 Let me just -- parliamentary procedure. 21 EXECUTIVE OFFICER WITHERSPOON: Oh, it remains in 22 effect until then. 23 ACTING CHAIRPERSON RIORDAN: Is that acceptable 24 to the second of the motion, to table? 25 So it's now tabled to a time specific, which PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 333 1 would be the January meeting, for the clarifications to be 2 brought back to the Board, clarifications of... 3 That is the motion that's before us. 4 Any further discussion? 5 Okay. All those in favor signify by saying aye. 6 (Ayes.) 7 ACTING CHAIRPERSON RIORDAN: Oppose, no. 8 All right. The motion carries. 9 So then this motion is tabled. 10 I want to be very -- before the audience leaves, 11 I want to be pretty clear on the next step, which would be 12 our regular scheduled January meeting. And then to our 13 counsel, is this now then open again for discussion? And 14 I -- because I want people to know whether or not there 15 will be discussion on -- 16 ACTING GENERAL COUNSEL JENNINGS: Some more 17 testimony? 18 ACTING CHAIRPERSON RIORDAN: Yes. 19 ACTING GENERAL COUNSEL JENNINGS: I really think 20 that's the pleasure of the Board. 21 ACTING CHAIRPERSON RIORDAN: Okay. In the sense 22 that not to anything but the clarifications, I think the 23 Board would accept testimony. Meaning that you couldn't 24 discuss things outside of that clarification. In other 25 words, the -- much of the testimony today was very wide PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 334 1 ranging. And that was acceptable because this was the 2 first time we've heard it. But we have now all of the 3 testimony on the record, which is very wide ranging, very 4 complete. 5 So the discussion would go -- or the testimony 6 would go specifically to the clarifications that were 7 brought back to this Board, if I may do that. 8 Is that acceptable to the Board? 9 Yes, Ms. Kennard. 10 BOARD MEMBER KENNARD: I just want to add a 11 clarification that is seeking that clarification that 12 staff reaches out to the community relative to their own 13 specific -- 14 EXECUTIVE OFFICER WITHERSPOON: Within the amount 15 of time allotted, we'll do our best. 16 BOARD MEMBER KENNARD: Thank you. 17 ACTING CHAIRPERSON RIORDAN: And also when we 18 publish the agenda or the staff report, that it be very 19 specific so that people who may not have been here to the 20 end tonight understand the narrowness of any testimony the 21 Board will undertake at the time of that January meeting. 22 I think we need to be very clear about what will occur. 23 Thank you. 24 Board members and staff and audience, I want to 25 say thank you. You have been wonderful. It's 10:30 at PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 335 1 night. And I think the best thing to do is adjourn this 2 meeting. 3 And I do thank you for everybody's participation. 4 (Thereupon the California Air Resources 5 Board Meeting adjourned at 10:30 p.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 336 1 CERTIFICATE OF REPORTER 2 I, JAMES F. PETERS, 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 California Air Resources Board meeting was 7 reported in shorthand by me, James F. Peters, a Certified 8 Shorthand Reporter of the State of California, and 9 thereafter transcribed into typewriting. 10 I further certify that I am not of counsel or 11 attorney for any of the parties to said meeting nor in any 12 way interested in the outcome of said meeting. 13 IN WITNESS WHEREOF, I have hereunto set my hand 14 this 28th day of March, 2005. 15 16 17 18 19 20 21 22 JAMES F. PETERS, CSR, RPR 23 Certified Shorthand Reporter 24 License No. 10063 25 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345