MEETING BEFORE THE CALIFORNIA AIR RESOURCES BOARD BOARD HEARING ROOM 2020 L STREET SACRAMENTO, CALIFORNIA THURSDAY, MARCH 23, 2000 9:30 A.M. Janet H. Nicol Certified Shorthand Reporter License Number 9764 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 ii APPEARANCES MEMBERS PRESENT: Alan C. Lloyd, Ph.D., Chairman Joseph Calhoun Dorene D'Adamo Mark DeSaulnier Dr. William Friedman C. Hugh Friedman Matthew R. McKinnon Barbara Patrick Barbara Riordan Ron Roberts STAFF: Michael Kenny, Executive Director Tom Cackette, Chief Deputy Executive Officer Mike Scheible, Deputy Executive Officer Lynn Terry, Deputy Executive Officer Kathleen Tschogl, Ombudsman PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 iii INDEX PAGE Call to Order 1 Pledge of Allegiance 1 Roll Call 1 Opening Remarks by Chairman Lloyd 2 AGENDA ITEM: 00-3-1 Public Hearing to Consider Amendments to the Agricultural Burning Guidelines Introductory Remarks by Chairman Lloyd 5 Staff Presentation Mike Kenny 7 Lucille Van Ommering 8 Public Comments Gary Lewis 27 Robert Reynolds 37, 117 Stan Dixon 42 Curt Josiassen 47 Lawrence Odle 51 Andrea Tuttle 67 Ray Quintanar 77 Earl Withycomb 80 Manuel Cunha 84 Larry Greene 88 Rod Hill 93 Barbara Lee 99 Richard Baldwin 106 Louise Talley 110 Howard Strickler 115 Wayne Morgan 139 Frank Rehermann 149 George Soares 154 Craig Ostergaard 164 Mark Rodgers 167 Steve Jolley 170 Chris Trott 175 Paul Violett 181 David Bischel 186 John Buckley 188 Cynthia Cory 192 (continued) PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 iv INDEX (continued) PAGE 00-3-2 Public Hearing to Consider Amendments to the Vapor Recovery Certification and Test Procedure Regulation for Enhanced Vapor Recovery Introductory Remarks by Chairman Lloyd 215 Staff Presentation Mike Kenny 216 Cindy Castronovo 218 Public Comments Ron Wilkniss 256 Jeff Trask 258 Larry Greene 261 Peter Hess 263 Richard Baldwin 264 Kevin Tokunaga 266 Mary Drewry 269 Jay McKeeman 270 Nick Bokides 276 Rick Bisker 281 Donald Leininger 282 Grenville Sutcliffe 285 James Healy 287 Peter Violino 292 Paul McWhorter 293 Dennis Decota 295 Bill Beck 302 David Harris 303 Daniel Kane 306 Robert Hart 308 00-3-3 Public Meeting to Consider Area Designation Recommendation for the New Federal Eight-Hour Ozone Standard Introductory Remarks by Chairman Lloyd 328 Staff Presentation Mike Kenny 328 Patricia Velasco 329 Public Comments Bruce Polkowsky 334 (continued) PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 v INDEX (continued) PAGE Open Session to Provide an Opportunity for Members of 339 the Public to Address the Board on Subject Matters Within the Jurisdiction of the Board Adjournment 339 Certificate of Reporter 340 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 1 1 P R O C E E D I N G S 2 CHAIRMAN LLOYD: Good morning. The March 23rd, 3 2000, public meeting of the Air Resources Board will now 4 come to order. 5 Mr. Calhoun, will you please lead us in the Pledge 6 of Allegiance. 7 BOARD MEMBER CALHOUN: Will you please join me in 8 the salute to our flag. 9 (Pledge of Allegiance recited.) 10 CHAIRMAN LLOYD: Thank you. 11 Will the clerk of the board please call the roll. 12 MS. HUTCHENS: Calhoun. 13 BOARD MEMBER CALHOUN: Here. 14 MS. HUTCHENS: D'Adamo. 15 BOARD MEMBER D'ADAMO: Here. 16 MS. HUTCHENS: DeSaulnier. 17 BOARD MEMBER DeSAULNIER: Here. 18 MS. HUTCHENS: Professor Friedman. 19 BOARD MEMBER C.H. FRIEDMAN: Here. 20 MS. HUTCHENS: Dr. Friedman. 21 BOARD MEMBER FRIEDMAN: Here. 22 MS. HUTCHENS: McKinnon. 23 BOARD MEMBER McKINNON: Here. 24 MS. HUTCHENS: Patrick. 25 BOARD MEMBER PATRICK: Here. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 2 1 MS. HUTCHENS: Riordan. 2 BOARD MEMBER RIORDAN: Here. 3 MS. HUTCHENS: Roberts. 4 BOARD MEMBER ROBERTS: Here. 5 MS. HUTCHENS: Chairman Lloyd. 6 CHAIRMAN LLOYD: Here. 7 I'd like to start this morning by congratulating 8 board members Dee Dee D'Adamo and Matt McKinnon for passing 9 last week's confirmation hearings of the Senate Rules 10 Committee with flying colors. The vote was unanimous, 5 to 11 0 for both of them. Again, both did an outstanding job in 12 answering some tough questions from the committee. 13 So congratulations again on surviving that rite of 14 passage. I don't know if either of you would like to make a 15 few comments on this. 16 BOARD MEMBER D'ADAMO: Glad it's over. 17 BOARD MEMBER McKINNON: Mr. Chair, we made enough 18 comments during the hearing for anyone, but thank you very 19 much. 20 CHAIRMAN LLOYD: Probably good to quit while 21 you're ahead. 22 The second thing I'd like to bring to the board 23 members' attention is next week's workshop on zero emission 24 vehicle mandate. On March 29th and 30th staff is holding a 25 two-day workshop to discuss the status of zero emission PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 3 1 technologies here in our board room. 2 There will be another workshop on May 31st after 3 the battery panel has completed its report. Next week's 4 workshop is the first step in a long process leading to the 5 board meeting in September 7th and 8th where the board will 6 review the status of ZEV technology and how we're 7 progressing towards the 2003 mandate. 8 As you know, achieving zero emissions from 9 vehicles is important to the Davis administration. When the 10 Governor announced the California Fuel Cell Partnership last 11 year, he said the state's goal was simple: zero, nada, 12 zilch, in terms of pollution. 13 We've made an excellent start with the ZEV mandate 14 and the Fuel Cell Partnership on many related research and 15 demonstration programs, so I'm looking forward to the 16 September hearing and taking a look at what more the board 17 can do to keep moving technologies ahead. 18 Again, I must say as an aside, with higher gas 19 prices and the myriad of regulations that we're faced with 20 in terms of gasoline production and marketing, electricity 21 and EVs are even more attractive and elegant. 22 Let me also say that the whole subject will be one 23 of the highest, if not the highest, priorities for activity 24 this year. I plan to attend next week's workshop and invite 25 any of my board members who are interested and available to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 4 1 do the same. 2 The board has a tremendous responsibility to 3 realize our zero emission goals. We can do it and I know 4 we'll get there working with all the stakeholders, and, 5 again, with the right mix of regulatory, policy and 6 incentives. 7 The last thing I wanted to bring to board members' 8 attention, talk about incentives, is the status of the Carl 9 Moyer program. As you may recall, the Legislature created a 10 13-member advisory committee to report back by March 31st, 11 next week, on whether this program should be continued and, 12 if so, at what level. The committee's work is virtually 13 done, with a report coming out next week. 14 Our own Mike Kenny chairs the committee and I'd 15 like to call upon him at this time to give the board a brief 16 overview of what's been happening and what to expect. 17 Mike. 18 MR. KENNY: Thank you, Mr. Chairman. 19 The board actually has met three times and the 20 purpose of the meeting has been to take both public 21 testimony with regard to the Carl Moyer program and the 22 success over the last two years with regard to the funding 23 of different types of projects. 24 In addition to that, what the board has been doing 25 is looking at what is necessary to continue that program if PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 5 1 in fact the board thinks it should be continued into the 2 future. 3 At this point in time it appears that where the 4 board is pretty unanimously going is that it does think the 5 program has been very very successful on the emission 6 reductions associated with the program, have been very 7 valuable. 8 The board is pretty solidly behind the idea of 9 continuing the program not for simply a single year, but as 10 a multi-year program in order to provide some level of 11 consistency and planning ability for people who want to take 12 advantage of the program. 13 The board also is very strongly heading in the 14 direction of a fairly substantial amount of increased 15 funding over where we currently are. The numbers that have 16 been talked about in the board meetings have been 50 to 100 17 million dollars per year for a sustained period of anywhere 18 from five to ten years. 19 CHAIRMAN LLOYD: Thank you very much. 20 We're going on to agenda item 00-3-1. 21 And I would like to remind anyone in the audience 22 who wishes to testify at today's agenda items to please sign 23 up with the staff outside the hearing room. 24 Also, if you have any written statement and can do 25 so, please give 25 copies to the staff. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 6 1 Again, the first item, like I said, is on the 2 public hearing to consider amendments to agricultural 3 burning guidelines. These guidelines address the burning of 4 crop waste, as well as burns conducted for public safety, 5 wildfire prevention, forest health and for other ecological 6 reasons. 7 The actual implementation of these guidelines is 8 done at the local level by the air districts and by the 9 people conducting burns themselves. 10 So it is very important that we all work 11 cooperatively on this effort. 12 We have several district representatives here 13 today to testify. 14 Welcome also to Andrea Tuttle, director of 15 California's Department of Forestry, and will be speaking 16 shortly after staff's presentation. 17 Again, good morning, Andrea. Thank you very much 18 indeed for coming. 19 One of the big challenges in this effort is to 20 improve communication and coordination to all levels of the 21 smoke management process. Today's discussion will move us 22 forward in that direction. 23 And I also recognize that staff has done a lot of 24 work in this area to try to get all the stakeholders 25 together and again I'm looking forward to the presentations PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 7 1 to see how far we've come. 2 Mr. Kenny, would you like to proceed? 3 MR. KENNY: Yes. Thank you, Chairman Lloyd and 4 members of the board. 5 California's agricultural burning program has 6 worked relatively well since its establishment in the early 7 1970s. Under today's system ARB staff works with local air 8 districts to determine if daily weather patterns provide 9 sufficient air movement to disperse smoke and avoid adverse 10 air quality and public health impacts. 11 While the program overall is a good one, not every 12 burn has been a successful one, and smoke problems have 13 occurred. 14 As federal and state land managers increase the 15 number of burn projects in our forest and wildlands, 16 additional care needs to be taken. 17 The proposed program refinements are designed to 18 provide additional assurance than open burning does not 19 result in smoke episodes in downwind communities. As more 20 people move into rural areas, this will become more 21 technically challenging. 22 Nonetheless, we believe through cooperative 23 efforts we can accommodate the necessary burning, taking 24 into account real-time metrological data and agreeing on the 25 appropriate conditions for burns is the key. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 8 1 This will take additional efforts on the part of 2 everyone involved, but we think the public health benefit of 3 avoiding smoke episodes is absolutely clear. 4 I'd now like to turn the presentation over to 5 Lucille van Ommering, who will make the staff presentation. 6 Lucille. 7 MS. VAN OMMERING: Thank you, Mr. Kenny, 8 Mr. Chairman and members of the board. 9 Wait one second. We have to find the presentation 10 on the computer. 11 MR. KENNY: We do this to heighten the 12 anticipation. 13 MS. VAN OMMERING: It will be well worth the wait. 14 CHAIRMAN LLOYD: Professor Friedman commented it 15 might have gone up in smoke. 16 MS. VAN OMMERING: Thank you again, Mr. Kenny, 17 Mr. Chairman and members of the board. 18 Today we are proposing amendments to California's 19 agricultural burning guidelines. 20 By way of introduction, I will provide some 21 background leading up to today's action. I will then 22 describe the proposed rule. I will also discuss major 23 issues that were raised during the public comment period and 24 how we propose to address them. I will then conclude with 25 our recommendation for board action. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 9 1 First I'll explain why we are proposing changes to 2 the existing guidelines. 3 We're proposing changes to the guidelines because 4 of the health effects that can occur when smoke plumes hit 5 populated areas. At present, smoke management efforts in 6 California are generally successful at avoiding public 7 health impacts. 8 However, smoke episodes do continue to occur. 9 The goal is to further reduce smoke episodes and 10 the air quality impacts of agricultural burning. This means 11 better management of crop burning, as well as program 12 improvements needed to ensure that air districts are 13 prepared to address projected increases in prescribed 14 burning. 15 Particulate matter is a primary constituent of all 16 types of smoke. If not well managed, agricultural burning 17 can result in smoke episodes in which people are exposed to 18 high particulate levels. These exposures are of concern 19 even for short periods of time. Recent studies based on 20 short-term exposure to elevated levels of PM-10 show 21 increased mortality, illness, and the need for medical care. 22 The most sensitive populations include those with 23 heart or lung disease, the elderly and children. 24 These studies may lead to a consideration of a 25 short-term particulate matter standard to supplement the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 10 1 existing 24-hour standard. 2 In January 2001, the board will hear a report on 3 the adequacy of particulate matter and other standards in 4 protecting children's health. 5 An overall board review of state ambient air 6 quality standards will follow in 2002. 7 In terms of the specific issue of smoke exposures, 8 ARB staff are also working with the Office of Environmental 9 Health Hazard Assessment on an air quality index approach. 10 This will help answer the question of what actions people 11 should take when high smoke exposures occur. 12 Now let's look at the type of burning covered by 13 the guidelines. 14 State law defines agricultural burning as the 15 intentional use of fire for crop waste removal, range 16 improvement and prescribed burning of forests and wildlands. 17 The following slides describe the various types of burning 18 included under the heading of agricultural burning. 19 Burning to remove crop waste is typically 20 conducted to prepare fields for future plantings and prevent 21 pest and weed infestation. 22 Burning is also conducted on range land to remove 23 vegetation for wildlife or livestock or for the 24 reutilization of the soil such as plantings on previously 25 uncultivated land. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 11 1 Prescribed burning is the controlled burning of 2 vegetative materials and forests and wildlands. It is most 3 often conducted to reduce the threat of catastrophic 4 wildfires, to restore and to sustain fragile ecosystems on 5 these lands, and to maintain the commercial value of timber 6 lands. 7 The video clip you're now seeing shows a fire crew 8 conducting a prescribed burn. These burns are designed to 9 remove brush, needles and other debris that accumulate on 10 the forest floor. Prescribed burning mimics the natural 11 fires that once cleared out the underbrush using frequent 12 low-intensity fires. Without these fires, trees and brush 13 with less tolerance for fire interfere with vegetation and 14 trees that sustain the ecosystem and protect against soil 15 erosion. 16 At the same time, fire used as treatment requires 17 careful management. That's the goal of the prescribed 18 burning elements of the proposed guideline amendments. 19 In 1998 about 1.6 million acres of crop waste were 20 burned, compared to about 200,000 acres of prescribed 21 burning. Note, however, that prescribed burning involving 22 forest fuels such as brush, chaparral and slash can emit 23 between five and 35 times more pollutants per acre burned 24 than crop waste. 25 Also in 1998, wildfires consumed about 200,000 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 12 1 acres. However, these estimates can vary annually. As an 2 example, last summer in California wildfires consumed over 3 730,000 acres of wildlands, or over twice as many acres 4 burned during the preceding five-year average. 5 Based on our future projections, we do not expect 6 crop waste burning to increase, but we do expect prescribed 7 burning to increase to about 340,000 acres by 2003. 8 Currently, district programs vary in how they 9 manage crop waste burning. However, a common element is 10 that the districts play a lead role in making daily 11 decisions for specific burns, while the ARB makes a daily 12 burn or no-burn day declaration for each air basin 13 statewide. 14 Sacramento Valley has the most comprehensive burn 15 program, in which specific acreage is allocated for burning 16 each day. 17 As we indicated in the previous slide, we do not 18 project an overall increase in acres burned from crop waste. 19 Unlike crop waste, we do expect that prescribed 20 burning will increase over the next few years. As an 21 example of the projected increase, this chart shows the 22 number of acres the Forest Service intends to treat in 23 California over the next five years, both through prescribed 24 burning and mechanical treatment. 25 The US Forest Service's projected increase in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 13 1 prescribed burning is driven by the 1997 change to its fire 2 policy, which shifted emphasis to prescribed burning in 3 order to reduce the growing risk that catastrophic wildfires 4 posed to public health, property, and the ecological balance 5 in our forests and wildlands. 6 We support this change in policy due to the 7 catastrophic nature of wildfires and the overwhelming smoke 8 impacts that affect public health in downwind areas. 9 According to the US Forest Service, 39 million 10 acres in national forests in the interior west are at high 11 risk of catastrophic wildfire. Not only can these fires 12 destroy property and damage vital ecosystems in our national 13 forest, they can also cause severe smoke episodes. In the 14 long term, prescribed burning programs should help reduce 15 these impacts. 16 Our next few slides illustrate the impacts of 17 catastrophic wildfires. 18 Last summer and fall there were two overlapping 19 wildfires that resulted in significant smoke impacts. 20 The first wildfire occurred in the Plumas National 21 Forest in Butte County as a result of a series of summer dry 22 storms. The resulting smoke, compounded by adverse 23 metrological conditions, blanketed Sacramento skies with a 24 thick haze rarely seen in the state's capital, and Governor 25 Davis declared a state of emergency in four northern PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 14 1 counties. 2 The next clip shows how the combination of 3 wildfires and meteorology can affect populated areas and 4 what the resultant smoke impact with mean to public health. 5 (Video shown.) 6 MS. VAN OMMERING: Like wildfires, prescribed 7 burning can result in significant smoke impacts if not 8 properly managed. 9 The next slides show the impacts of two burn 10 projects that went out of prescription. The first fire 11 occurred outside of Redding. The other was in the Tahoe 12 basin. 13 The Lowden Ranch fire occurred on July 2nd, 1999. 14 The burn was set to remove the build-up of star thistle, a 15 noxious weed, plus restore native vegetation and the 16 riparian ecosystem. Although only one day in duration, the 17 fire quickly spread from 100 to more than 2,000 acres and 18 created a large smoke plume that could be seen and inhaled 19 for miles. 20 According to the post-burn report, the fire was 21 ignited despite the fact that conditions for the burn were 22 not met. In other words, favorable weather conditions were 23 not present, pre-burn test procedures were not followed and 24 the burner failed to take contingency actions as the burn 25 escaped control. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 15 1 The next prescribed burn we examined occurred in 2 November of last year in the Tahoe Basin. Pervasive smoke 3 drained into populated areas for several days. Smoke column 4 behavior was not monitored as required by the burn plan and 5 fire crew failed to take quick action to limit smoke impacts 6 to people in the area. 7 It is important to point out that once the extent 8 of the smoke impact was understood, the US Forest Service, 9 the burn agency for the project, quickly gathered together a 10 team of Forest Service and ARB personnel to conduct a 11 post-burn evaluation. This post-burn evaluation was 12 critical and effective in identifying what caused the 13 problems and implementing corrective procedures to avoid 14 such problems in the future. 15 This collaborative process is a necessary and 16 important component of an effective smoke management 17 program. 18 The memorandum of understanding we signed with the 19 Forest Service last summer is a very positive example of 20 collaboration and helped serve as the basis for the 21 prescribed burning element of our proposal. The proposed 22 guidelines specifically address large burns because of the 23 potential to impact populated areas hundreds of miles from a 24 fire. 25 The highlighted areas of this slide show a smoke PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 16 1 plume that covers a significant part of Northern California. 2 Our experience with crop waste and prescribed 3 burning has showed us the importance of the use of real-time 4 meteorology for an effective smoke management program. A 5 daily authorization system that manages the time, amount and 6 location of burns, following the burn prescription and last 7 but not least collaboration and communication among burners 8 and air agencies. These lessons were instrumental in 9 shaping the proposed changes to the guidelines. 10 The next series of slides will describe the key 11 elements of the proposed amendments to the guidelines. 12 In developing the proposed rule, we looked at 13 effective components of existing agricultural burning 14 programs in California. One that represented a good 15 approach for a burn allocation system was the nine-district 16 regional program in the Sacramento Valley. Since this 17 system began in 1981, hourly smoke observations taken over 18 the past 15 years at Sacramento Executive Airport have shown 19 a 75 percent reduction in smoke impacts on Sacramento 20 visibility during the fall months. The other two programs 21 in the northern Sierra and the North Coast highlighted the 22 importance of coordination and collaboration between air 23 districts and burners. 24 The staff proposal consists of three major 25 improvements: a daily authorization system based on PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 17 1 real-time meteorology; smoke management plan provisions for 2 prescribed burners; and a new burn designation, the marginal 3 burn day. 4 The burn authorization system regulates the 5 amount, timing and location of burn events based on 6 real-time weather and air quality conditions and potential 7 health impacts to smoke-sensitive populations. Burners 8 would receive advance forecast prior to the burn. However, 9 the burner would need to confirm on the day of the burn that 10 weather conditions are still favorable for the specific burn 11 and that the burn prescription is met. 12 To avoid impacts on neighboring areas, the 13 districts must communicate and coordinate with each other. 14 Finally, districts that do small amounts of 15 burning can request an exemption from burn authorization 16 system requirements if such amounts are not expected to 17 cause or contribute to air quality problems. 18 The second major provision requires burners to 19 prepare and submit smoke management plans to the district. 20 This requirement applies only to prescribed burning and 21 requires review and approval by the district prior to the 22 burn. 23 Under this provision, districts would establish 24 tiered requirements for smoke management plans. Those 25 conducting smaller burns would be required to submit only a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 18 1 minimal amount of information, such as the amounts of 2 material to be burned. Those conducting larger burns would 3 be required to submit more detailed information, including 4 the identification of smoke-sensitive areas, specifying 5 metrological data and air quality conditions in which a fire 6 can be set, monitoring smoke into populated areas, and 7 identifying contingency actions such as fire suppression or 8 containment that will be taken if smoke impacts occur or 9 meteorological conditions take a turn for the worse. 10 The third key provision is a new designation of 11 marginal burn day. Under the proposal, ARB would call a 12 marginal burn day for specific air basins or regions when 13 limited amounts of burning could be done without causing or 14 contributing to public health impacts. 15 The proposed guidelines set the framework for 16 managing smoke from agricultural burning within the context 17 of existing district programs, and allow flexibility for the 18 districts to tailor program requirements to best achieve 19 program goals, and that is reduced public health impacts 20 from smoke exposure. 21 Because this framework incorporates a new approach 22 to managing smoke and there is substantial flexibility, we 23 are proposing to return to the board within two years with 24 an assessment of how the new guidelines are working in 25 practice and whether any adjustments are needed. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 19 1 Based on comments we received during the past 45 2 days, we are proposing additional changes to the guidelines. 3 The most important proposed change is to remove the 4 provision affecting residential burning. We are proposing 5 to work with CAPCOA to determine how to address the issue of 6 residential burning and to report back to the board within 7 one year with recommendations. 8 Other proposed changes includes specifying that 9 burn projects meeting the alternative assessment 10 requirements under NEPA and CEQA will be considered to have 11 met a comparable provision in the guidelines that affect 12 large burn projects; revising the provision for a 48-hour 13 forecast to include a probability or degree of confidence 14 factor to provide the burn agency with a higher degree of 15 certainty when deciding whether to assemble burn crew and 16 the necessary equipment to the project site; changing the 17 notification process requiring a burn agency to consult with 18 the district prior to managing a wildfire on a no-burn day 19 to assure that burners make a reasonable effort to contact 20 districts within 24 hours, or, if unavailable, to contact 21 the ARB; extending the length of time from 120 to 180 days 22 for districts to amend their smoke management program to 23 incorporate ARB changes. 24 Finally, there a number of editorial changes that 25 either clarify or correct the proposal. These changes are PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 20 1 included in your board package. 2 Before we conclude this part of the public 3 hearing, there are several issues we want to bring to your 4 attention. I'll briefly describe each one. 5 Air districts are concerned about recovering 6 program costs associated with new provisions in the 7 guidelines. Agencies that burn are concerned about 8 budgeting for added costs. 9 Concerns have also been raised that fees may have 10 the unintended impact of reducing prescribed burning. 11 Finally, the burners also want to ensure that all 12 parties are treated equitably on fees. 13 In response, we are committed to working with all 14 stakeholders to seek ways to recover the reasonable cost of 15 smoke management programs and to develop an equitable fee 16 structure. 17 As mentioned earlier, we will also monitor the 18 implementation of this program, including the fee situation, 19 and report back to the board. 20 The next issue relates to the efficient use of 21 resources. Everyone has limited resources, so it is 22 important to operate the program cost effectively. We agree 23 with this concern, and will work with agencies and burners 24 to seek ways to pool in-kind resources that will reduce 25 program costs and improve program effectiveness. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 21 1 By the end of the year we also hope to have up and 2 running an interactive computer-based system that will track 3 prescribed fires in the state. This automated system will 4 be used to work in conjunction with the burn allocation 5 system by plotting planned and actual burns. 6 We will also work with CAPCOA and state and 7 federal land managers to evaluate and, if appropriate, 8 develop a uniform smoke management plan format that will 9 simplify the data collection and review process for both the 10 burner and the district. 11 Several districts have requested revisions in 12 metrological criteria that are used to determine burn days 13 for each air basin to better reflect metrological conditions 14 within air basins or regions. The proposed guidelines 15 contain a process to test and revise existing criteria. We 16 will work with interested districts to initiate a test 17 program as soon as practicable and come back to the board by 18 August of 2001 with recommended revisions to these criteria. 19 Several stakeholders have raised issues related to 20 the scope and completeness of ARB's environmental assessment 21 of the proposed guidelines. These issues include the need 22 to evaluate potential impacts of increased prescribed 23 burning, to conduct a more comprehensive analysis of local 24 impacts and to assess the environmental impacts of the 25 marginal burn day designations. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 22 1 Our analysis of the potential effects of the 2 guidelines indicated that the guidelines as amended would 3 reduce smoke impacts. 4 We did not analyze increases in prescribed burning 5 because it went beyond the scope of our rulemaking. 6 We believe that the air districts can comply with 7 CEQA requirements through a programmatic environmental 8 impact review. 9 We will work with CAPCOA to prepare a template 10 that districts can use that will provide the necessary 11 structure and required information for completing the 12 assessment. 13 Based on comments, we also conducted a 14 supplementary assessment to determine whether burning 15 conducted under a marginal burn day would result in adverse 16 environmental impacts over what would otherwise have 17 occurred under the existing program. Based on this 18 evaluation, we believe that taken together with the burn 19 authorization system and the smoke management plan 20 requirements that the marginal burn day will not result in 21 additional smoke impacts, and we will address the evaluation 22 in full prior to the final approval of the guidelines. 23 Some commenters expressed concern that the 24 proposed guidelines would force burners to compete for burn 25 allocations and unfairly restrict their ability to burn. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 23 1 We recognize that restrictions on burning during 2 certain days of the year may result in some delays in the 3 ability to burn. In our view we believe that districts can 4 accommodate the needs of all burners without a need to 5 prioritize one type of burning relative to another. If this 6 is not the case, the guidelines provide criteria that the 7 district must consider if a prioritization system is 8 established. These criteria are intended to ensure equity 9 in district programs. 10 The final issue concerns whether to encourage the 11 use of non-burn alternatives within the guidelines. The 12 proposed guidelines require that alternatives must be 13 considered for large burn projects. 14 In addition, in November of last year, Governor 15 Davis announced a $30 million grant program targeted at 16 providing incentives to the biomass industry. 17 In conclusion, we recommend that the board approve 18 the proposed amendments to the guidelines before you with 19 the improvements that we presented today. 20 Thank you. 21 CHAIRMAN LLOYD: Thank you very much. 22 Madam Ombudsman, would you please describe the 23 public process by which this -- in which the public 24 participated prior to this board meeting today. 25 OMBUDSMAN TSCHOGL: Mr. Chairman and members of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 24 1 the board, the proposed amendments to the agricultural 2 burning guidelines are the result of nearly two years of 3 collaboration and coordinated efforts between ARB staff and 4 stakeholders. 5 ARB staff held three scoping sessions and 15 6 workshops between January 1999 and January of this year. 7 Over 500 individuals participated in these public meetings. 8 Participants included representatives from local air 9 districts, many state and federal land managers, including 10 the California Department of Forestry, the US Forest 11 Service, the agricultural community, private foresters, 12 burning alternatives groups and environmental groups. 13 Throughout the development of the report, staff 14 conducted numerous conference calls, face-to-face meetings 15 and one-on-one phone calls with the interested parties. 16 On February 4th of this year, the ARB staff mailed 17 the notice of the hearing and the availability of the staff 18 report to more than 1700 people. 19 In addition, the notice was posted on ARB's Web 20 site, along with the draft agricultural burning guidelines. 21 Staff did a tremendous job with their outreach 22 efforts. As I mentioned, the appropriate stakeholders and 23 interested parties were involved in the development of the 24 report before you. 25 Compelling arguments were heard from both the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 25 1 opposition and the supporters of the guidelines. As a 2 result, many additional modifications were incorporated into 3 the document you are considering today. 4 Most of the remaining stakeholder concerns seem to 5 center on how the regulation will be implemented. As you 6 have heard from staff, the guidelines provide lots of 7 flexibility. However, some stakeholders worry that this 8 will work against them. 9 Staff has indicated that they will continue to 10 work with CAPCOA to address this and other issues. 11 That concludes my comments. Thank you. 12 CHAIRMAN LLOYD: Thank you very much. 13 Any questions from the board? 14 None at this time. 15 One question from staff, how much do we know about 16 the health effects of these fires, wildfires? 17 MS. TERRY: I was looking for our Research 18 Division representative. 19 MR. WESTERDAHL: Good morning, Mr. Chairman, 20 board. Dane Westerdahl with the Research Division. 21 We've been reviewing the literature on the effects 22 of smoke. We're also doing research projects on the effects 23 of smoke. 24 We find that when we have the information from 25 monitoring and the health effects monitoring activities that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 26 1 allow us to do comparisons, whether they be from fires in 2 Indonesia, fires in Florida, fires in Washington, fires in 3 California, that we can find, that there are changes in 4 people's health status and their well being. Things like 5 going to emergency rooms for asthma problems, things like 6 increased use of medication. 7 We also learned a lot from occupational exposures 8 where firefighters are involved. Their lung function 9 changes between shifts, between morning before they start 10 or -- well, before they start and after they start. 11 We are doing lots of work in terms of PM effects. 12 We know that short-term effects of PM, one or two hours 13 exposure at PM at quite low levels will cause these kinds of 14 changes as well in a general population and a sensitive 15 population. 16 We have studies underway now. One of the problems 17 of doing studies from a fire, outcome of a fire, is that you 18 don't know where the smoke is going to go, you don't know 19 where to establish your study population. You can't predict 20 what to look for. But we are gathering data from local 21 hospitals, as well. Others have done that. It's irritating 22 material that make people who are sensitive quite ill. 23 CHAIRMAN LLOYD: Do you have research programs 24 looking at specifically some of the smoke effects? 25 MR. WESTERDAHL: Right. We do have, to refine PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 27 1 what we already know about the PM effects, the short-term 2 effects, we have a study at UC San Francisco, I think that 3 was mentioned, where we're taking asthmatics and allergic 4 subjects, exposing them under very controlled conditions to 5 an hour or two of smoke. 6 CHAIRMAN LLOYD: Thank you very much. Thanks, 7 Dane. 8 I'd like to begin the witness list. Our first 9 witness here is Supervisor Gary Lewis from Lake County, 10 followed by Supervisor Stan Dixon from Humboldt County, and 11 then Andrea Tuttle, Dr. Tuttle, from the California 12 Department of Forestry and Fire Prevention. 13 MR. LEWIS: Mr. Board President and honorable 14 board, thank you for allowing time to respond to this 15 appropriate action. My name is Gary Lewis. I am a member 16 of the Lake County Air Quality Management District board of 17 directors and am elected supervisor from the Third District 18 in Lake County. 19 The district I represent, and I might also add and 20 the rest of the county, produces substantial pears, walnuts, 21 grape, timber and rice, all of which must rely on burning as 22 part of their methods of management. 23 We also have a thriving resort and recreational 24 community that coexists with this mixed-land use. 25 I, as well as our entire community, care greatly PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 28 1 about our environment to include preservation of our 2 healthful air. We frequently promote and celebrate our 3 clean air status and have long acknowledged and appreciated 4 ARB's support. 5 So it is especially unpleasant to be here today to 6 disagree with your staff and ask you to incorporate a 7 condition and see a reasonable request denied by staff. 8 I am here to plead with you to grant the 9 modification requests that was forwarded to you by our full 10 board and dated March 14th of the year 2000. The text that 11 follows in italics on your written testimony is requested to 12 be added to ARB staff's proposal. 13 80145(b), a burn authorization system is not 14 required for small amounts of daily agricultural burning, 15 excluding prescribed burning, if an air district 16 demonstrates, based on historical data, that those small 17 amounts of burning do not cause or contribute to air quality 18 problems. 19 Italics. An air basin in attainment with the 20 state PM-10 AAQS, and not identified as a transport couple, 21 shall be exempt from the daily agricultural burn 22 authorization requirement to track small-quantity burning as 23 determined by the district board. 24 Our board came to a decision to make the formal 25 request after public discussion and input from supporters PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 29 1 and advisors on open burning. We believed it would be 2 better to adopt guidelines that empowered and built upon 3 local programs by assessing each basin, prior to writing 4 regulations for that basin, as is required by the Health and 5 Safety Code. 6 We are disappointed that approach was judged 7 undesirable by ARB staff. 8 Instead of advocating that valid position we have 9 requested an addition we believe to be reasonable and 10 necessary to avoid damaging our existing program and the 11 trust of the community. 12 You will hear, if time allows, from community 13 members representing the resort community, farm community 14 and fire agencies, advocating our requested addition to 15 allow an exemption for our air basin, provided we maintain 16 our good record. 17 They deserve your support and trust. We are 18 capable and have been aggressive as a community in 19 addressing our air quality problems. We intend to maintain 20 compliance with all state AAQS, even new short-term 21 standards, if you choose to adopt such. 22 The colored map from the ARB Web site that you 23 have attached to your packet speaks volumes as to the status 24 of the state and the Lake County air basin. Notice one 25 green air basin in a sea of red. That's Lake County. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 30 1 This status is all the more worthy of 2 consideration if you realize that not only are we the only 3 district in attainment with all the state AAQS, this is the 4 tenth year of such singular designation by your board. 5 And the levels in most instances have continued to 6 decline. PM-10 exposures are one-half of the state AAQS and 7 one-fourth of the less stringent federal PM AAQS. 8 We take seriously the commitment to healthful air 9 and the record indicates our ability and commitment. We 10 deserve your support, consideration and trust and not an 11 unnecessary and damaging mandated one solution fits, no 12 matter the problem, regulation, as is advocated by your 13 staff under section 80145. 14 We emphasize and have long incorporated all the 15 items discussed in your staff report, such as collaboration 16 with the California Department of Forestry, Bureau of Land 17 Management, United States Forest Service, fire agencies and 18 public, et cetera. 19 The success of our program for many years and our 20 history of community support demonstrate that. 21 You will hear from other speakers who will 22 emphasize these aspects. 23 ARB staff advocates only the Sacramento Valley 24 model which has to be considered only marginally successful 25 while being costly and continuing with numerous state AAQS PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 31 1 exceedance. 2 While Sacramento Valley may have the need to daily 3 grant permission to each agriculturist before they can burn, 4 we think such is costly, unnecessary and offensive to our 5 environmentally oriented, cooperative and supportive farm 6 community. 7 If your staff wants to advocate a program to go 8 statewide, why not the summer seasonal burn ban that has 9 been instituted in our basin since 1987, or the ban on burn 10 barrels, a recognized source of dioxins. Such steps would 11 provide much increased health and fire hazard protection and 12 cost little. But these steps are obviously no more 13 acceptable to be forced on the Sacramento Valley than their 14 program is for -- your program is for the Lake County air 15 basin. 16 We do not want allocation forced upon us and ARB 17 staff has refused to make it clear such will not happen. 18 They have been given ample opportunity to clarify 19 this situation. 20 Mr. Reynolds, our air pollution control officer, 21 wrote your staff on several occasions, and I have recently 22 communicated with your staff to express our concern and seek 23 a resolution. 24 These requests to define terms or list districts 25 qualifying for the exemption under 80145(b) have been PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 32 1 ignored. 2 And I must include here, in fairness I did receive 3 a fax from Mr. Bob Fletcher yesterday stating my concerns 4 would be addressed at this hearing. So thank you. 5 We recognize that we may not be important as a 6 statewide issue, but it is critically important to us. 7 Clearly, the ARB staff's intent is to be flexible, 8 but the performance standard in plain English as contained 9 in 80145(b) is not as is represented verbally, and your 10 staff either cannot or refuses to define or qualify the 11 terms contained as requested. 12 Your board's intent on allowing this exemption 13 must be clear before the staff moves on to implementing 14 these guidelines. 15 ARB staff's objection to our proposed addition 16 apparently is that the authorization or allocation system is 17 the only way to protect against short-term exposure or 18 concerns not covered by an AAQS. 19 The only example contained in the staff report is 20 for the Sacramento Valley air basin that has an allocation 21 program for many years and apparently does not accomplish 22 the stated staff objective. 23 We have incorporated into our rules specific 24 language directing the APCO to further limit ARB-declared 25 burn days, when 50 percent of any AAQS is threatened. And PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 33 1 we take any public health complaints seriously. A major 2 effort is directed at residential burning and problematic 3 burns, such as our tules. We believe that in the absence of 4 a short-term AAQS, we have the better approach and find ARB 5 staff's objection to our request to be poorly considered and 6 lacking real-life experience where resources limitations 7 affect what can be accomplished. 8 We will have all we can handle in implementing 9 just the prescribed burning portion of the new program. 10 In summary, the ARB staff proposal to require an 11 authorized program for agricultural burning is of little 12 benefit and will harm our successful program that enjoys 13 wide community support. 14 Your board's honoring of the requested 15 modification to ensure exemption for attainment districts 16 that are not identified as a transport couple, though 17 presently only the LC AQMD would qualify, that's Lake 18 County, would allow local boards the flexibility to 19 determine how best to manage small amounts of daily 20 agricultural burning. 21 The requested addition rewards districts that 22 maintain attainment with the state PM-10 AAQS, and if health 23 is the issue, would seem to be appropriate. 24 I ask that you honor our community's request to 25 modify staff's proposal under section 80145(b). PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 34 1 And thank you for this opportunity to speak with 2 you. 3 CHAIRMAN LLOYD: Thank you very much. 4 Do you have staff response? 5 MR. KENNY: Let me begin and then I'll turn it 6 over to staff. 7 Supervisor Lewis and Bob Reynolds have done a 8 great job in Lake County and that's obvious from the fact 9 that they are the only PM-10 attainment area in the state. 10 This, though, is less about essentially attainment 11 standards and more about localized smoke impacts on 12 population. 13 And the attainment standards themselves do not 14 always reflect what is happening to an individual or to a 15 community with regards to smoke impacts from a burn, whether 16 it's agricultural or prescribed in nature. 17 What we're trying to do with the regulations is 18 essentially reflect that need to look at those localized 19 impacts that will not be reflected in the ambient air 20 quality standards and have those addressed by the local 21 agencies. 22 What we tried to do in terms of the regulation is 23 provide some recognition of the kinds of things that have 24 been done in Lake County and that's why we have the 25 provision that talks about small burn exemptions, provided PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 35 1 the county can show that in fact it has a good program and 2 it's working successfully. 3 But a good program that's working successfully 4 with regards to localized smoke impacts is not going to be 5 defined solely by attainment of the ambient air quality 6 standard. 7 CHAIRMAN LLOYD: Is that the response that was 8 reflected in your letter, Bob? 9 MR. FLETCHER: Yes. 10 CHAIRMAN LLOYD: Okay. Professor Friedman. 11 BOARD MEMBER C.H. FRIEDMAN: Be patient with me. 12 I'm just not clear on precisely what it is that Lake County 13 is seeking that isn't provided by subsection B of 80145. 14 As I read it, it provides for an exemption from 15 the burn authorization system otherwise mandated for small 16 amounts of daily agricultural burning, but it does exclude 17 prescribed burning. Maybe that's not the issue, right? 18 That do not cause or contribute to air quality problems, 19 based on historical data, which they can demonstrate. 20 So I'm not clear on why this doesn't go far 21 enough. 22 MR. KENNY: We actually think, we agree, we think 23 it does go far enough. I think, without speaking for the 24 supervisor or for Bob Reynolds, I think what they are 25 looking for is some greater level of specificity with regard PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 36 1 to that provision. We think that in fact we are trying to 2 essentially recognize that all the different districts 3 around the state need some level of flexibility and what 4 we're primarily concerned with here is essentially 5 minimizing those smoke impacts. And so that's why we have 6 the language here, probably with less specificity than maybe 7 the district is requesting. 8 But we think this does address the issue. 9 BOARD MEMBER RIORDAN: Mr. Chairman, may I ask a 10 question. 11 I don't have my page open, and I apologize for 12 that. 13 Does the local district then make that 14 determination? So that does give them the flexibility, it 15 isn't something that has to be reviewed by another agency 16 like ourselves? 17 MR. KENNY: Yes. I mean there is a collaborative 18 aspect to this. We will be working with them and I think 19 that is part of the concern here that as time goes on, I 20 think they have some concern that we may interpret small 21 amounts differently. 22 CHAIRMAN LLOYD: Any other questions from the 23 board? 24 BOARD MEMBER C.H. FRIEDMAN: I'm wondering if we 25 can hear either now from the gentleman who just spoke, the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 37 1 supervisor, or subsequent representatives of Lake County, 2 precisely what language they are proposing. Maybe it's in 3 their correspondence, but we've got quite a volume of 4 materials and I'd like to pinpoint what specific language 5 they would -- how they would expand it or be more specific. 6 MR. KENNY: If I could read it, what they would 7 propose is that we take the existing language that we have 8 in our proposal, which is in 80145(b), and they would 9 propose adding the following sentence to the end of that. 10 And that would say an air basin in attainment with the state 11 PM-10 ambient air quality standard, and not identified as a 12 transport couple, shall be exempt from the daily 13 agricultural burn authorization requirement to track small 14 quantity burning as determined by the district boards. 15 And, again, what's happening there is that they're 16 really using the PM-10 attainment designation as a way of 17 not having compliance with the program when in fact we do 18 think that in fact the program needs to be utilized if there 19 are smoke impacts, even if they're not reflected in the 20 ambient air quality monitoring and then we try to provide 21 flexibility by providing a small volume exemptions. 22 BOARD MEMBER C.H. FRIEDMAN: I understand now. 23 Thank you. 24 CHAIRMAN LLOYD: Bob, I think you'll address this, 25 when you come up, I think you're coming up shortly. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 38 1 Go on, quickly. 2 MR. REYNOLDS: I'll preserve my time for later for 3 my statement, but I'll try to answer the question. 4 We burn 20,000 acres a year. It's not small. 5 It's not we're telling you it's small. You can't 6 contribute -- another criteria is if you contribute or cause 7 any air quality problem. I don't think you can burn 20,000 8 acres a year and not cause a problem. 9 We repeatedly tried to get the staff to define 10 this. Because in fact in 1990 when we were before you the 11 last time I just had a serious argument, you tried to get us 12 to do authorization system or an allocation system totally 13 for emissions inventory purposes. 14 This is a costly, expensive, intrusive system that 15 fits the Sacramento Valley and does not fit in our district 16 and will damage it. I'll explain a little bit more later. 17 So it is a serious issue with us. 18 Thank you. 19 CHAIRMAN LLOYD: Ms. D'Adamo. 20 BOARD MEMBER D'ADAMO: I had a couple of questions 21 of staff. 22 First of all is it defined elsewhere small 23 amounts? 24 And then aside from the PM-10 issue or the PM 25 issue raised, the way I read this, the current proposal by PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 39 1 staff would require the district to demonstrate, and that 2 ultimate decision as to whether or not the district has 3 demonstrated that small amounts would be made by ARB staff? 4 Okay. 5 Their proposal, under the Lake County proposal, it 6 would be determined by the district, correct? 7 MR. KENNY: Yes. 8 BOARD MEMBER D'ADAMO: And the letter that 9 Mr. Fletcher wrote, is it possible for us to get a copy of 10 that please? 11 MR. FLETCHER: Yes. 12 I'd like to, if I could just correct, the language 13 that Lake County is proposing to add would be a supplement 14 to 80145(b) and it would just specify sort of an explicit 15 criteria that would be used. It would still be the Air 16 Resources Board's decision to approve that, but if the board 17 chose to add that language it would be a pretty clear 18 definition of what that criteria is, but we would still 19 retain that authority to make the decision. 20 BOARD MEMBER D'ADAMO: Thank you. 21 CHAIRMAN LLOYD: Yes, Professor Friedman. 22 BOARD MEMBER C.H. FRIEDMAN: Just so while we're 23 on the subject, maybe we can close it off, although we'll 24 hear more from Lake County, if I understand what they're 25 seeking to do they want to specify in provision B, the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 40 1 exemption provision, that if they satisfy the PM-10 standard 2 then that defines, will not cause or contribute to air 3 quality problems; is that right? In other words, even 4 though it may contribute in fact to health problems, as long 5 as you're within the PM-10 standard that becomes the test? 6 MR. KENNY: I think that's correct. 7 BOARD MEMBER C.H. FRIEDMAN: That's what your 8 concern is? 9 MR. KENNY: Yes. 10 BOARD MEMBER C.H. FRIEDMAN: Staff's concern is 11 that local health effects can be adverse. 12 MR. KENNY: One of the reasons we have that 13 concern is that when we did have the fires last summer, the 14 wildfires that created fairly substantial smoke impacts in 15 Sacramento, the PM-10 readings essentially on the monitors, 16 despite the fact that you couldn't see, were not all that 17 much above the exact standard. I think the standard 18 essentially from a federal standpoint at that point was 150, 19 and we were talking about like readings of about 151. 20 Now, the one difference here that does need to be 21 sort of acknowledged is that Lake County is in attainment of 22 the state standard and that level is 50, as opposed to 150. 23 So again, what they've accomplished is something that should 24 not be minimized in any way. They have accomplished 25 something very very impressive that no one else in the state PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 41 1 has been able to accomplish. 2 But we still want to make sure that in fact the 3 standard is not simply the defining factor here, that really 4 what we're looking at is smoke impacts on a localized basis. 5 BOARD MEMBER C.H. FRIEDMAN: How will you 6 determine that? 7 MR. KENNY: What we do is a lot of times we can 8 look at complaints, we can look at visibility, we can look 9 at essentially the types of meteorology that has 10 associated -- 11 BOARD MEMBER C.H. FRIEDMAN: That's after the 12 fact. 13 MR. KENNY: That's true. 14 BOARD MEMBER C.H. FRIEDMAN: We're talking about 15 planned burning. 16 MR. KENNY: What happens here is that what the 17 district will have to do is essentially make sure that 18 they've got an allocation system in place, unless they have 19 problems that they can basically demonstrate through 20 historical data, and that allocation system would require 21 them to then make determinations on a daily basis as to 22 whether or not burning is going to be allowed, based on the 23 meteorology. 24 BOARD MEMBER C.H. FRIEDMAN: Would you allow the 25 described, the burning that he described, that Mr. -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 42 1 MR. KENNY: Mr. Reynolds is talking about 20,000 2 acres a year and what we're really talking about is not a 3 20,000-acre burn. We'd have very serious concerns if we 4 were looking at one burn of 20,000 acres, because of 5 potential smoke impacts. And what you're really looking at 6 instead is a number of smaller burns that over the year will 7 aggregate to 20,000 acres and that's where the small amounts 8 exemption actually may be very useful for the district. 9 BOARD MEMBER C.H. FRIEDMAN: Well, unless they 10 were burning 20,000 acres all at once -- 11 MR. KENNY: If they are burning 20,000 acres at 12 once, we want to make sure they do that the right day. 13 BOARD MEMBER C.H. FRIEDMAN: But so this exemption 14 could cover what they do, if they do it in small amounts? 15 MR. KENNY: Yes. 16 BOARD MEMBER C.H. FRIEDMAN: Given their 17 historical data. 18 MR. KENNY: Yes. 19 BOARD MEMBER C.H. FRIEDMAN: Given their record. 20 MR. KENNY: We think so. 21 BOARD MEMBER C.H. FRIEDMAN: But they don't? 22 MR. KENNY: Correct. 23 BOARD MEMBER RIORDAN: Maybe it will become clear 24 to us as others from Lake County speak, and then I think 25 we'll know whether that's an increment of 20,000 acres in a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 43 1 very short period of time or if it's over a period of time, 2 and I'm unclear as to whether or not it's one or the other. 3 CHAIRMAN LLOYD: Any other comments? 4 We'll call on the next witness, Supervisor Dixon, 5 from Humboldt County, also representing I guess the Board of 6 Forestry as a board member. 7 We also have an additional supervisor signed up 8 now from Butte County and then Dr. Tuttle. 9 Good morning. 10 MR. DIXON: Mr. Chairman, members of the board, I 11 am Stan Dixon. I'm a member of the Humboldt County board of 12 supervisors and one of the hats county supervisors wear is 13 to also serve as board members on air districts. 14 I'm here today representing North Coast Unified 15 Air Quality Management District and that district 16 encompasses Humboldt, Del Norte and Trinity County. 17 I'm also a recently appointed member of the state 18 Board of Forestry. And I want to commend and congratulate 19 your members who have been confirmed by the Senate Rules 20 Committee. I have not yet had that experience, so I'm 21 looking forward to that. 22 Our board has been kept informed of the 23 development of the smoke management guidelines that have 24 occurred over the past several months, and our APCO has 25 testified and participated in many of those hearings. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 44 1 The overwhelming concern that we have voiced in 2 the past and are again voicing today is the approach or 3 process used by the ARB. This approach, we believe, failed 4 to recognize and make allowances for existing districts' 5 smoke management programs that are already operating 6 effectively in California. 7 And we believe the existing smoke management 8 program operated by our district, the North Coast District, 9 although not perfect, works extremely well. 10 The North Coast program is already rooted in a 11 daily authorization system and therefore has no need for the 12 additional elements being advocated by the staff of the ARB. 13 The smoke management approach taken by your board 14 was to develop a guideline that would be applied to each 15 district or region in the state. This guideline is based on 16 establishment of an allocation of acreage or tonnage to be 17 burned on a daily basis, considering air quality and 18 meteorology. 19 In addition, the statewide program is patterned 20 after that of the Sacramento Valley rice straw burning 21 program. And we believe that herein lies the problem from a 22 smoke management standpoint. 23 Attempting to apply an existing program which uses 24 consistent fuels, in this case straw, uniform fuel 25 moistures, and a shared air mass, simply will not work with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 45 1 any reliability in areas of complex terrain, variable fuel 2 moistures, variable fuel loading rates and the influences of 3 river drainages such as are found on the North Coast. 4 The Legislature recognized the great diversity in 5 topography, meteorology, crops, air quality and demographics 6 that exist in California when it authorized the ARB to 7 develop agricultural burning guidelines in each air basin 8 established by your board. 9 The Legislature realized that such guidelines must 10 take into consideration the air quality circumstances that 11 exist in each air basin, the type and amount of burning that 12 takes place, the meteorology that exists, and the need for 13 regulating the burning of agricultural waste products. 14 This legislative authority is accurately expressed 15 in section 41856 of the Health and Safety Code, which states 16 the state board shall promulgate guidelines for the 17 regulation and control of agricultural burning for each of 18 the air basins established by the state board. 19 And also in section 41857, which states the 20 guidelines promulgated by the state board shall be based on 21 meteorological data, the nature and volume of materials to 22 be burned, and the probable effect of such burning on the 23 ambient air quality within the air basins effects. 24 It is clear that the ARB's authority and charge is 25 directed towards the development of agricultural burning PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 46 1 guidelines for each air basin, not one flexible guideline 2 for the entire state. 3 We are committed to operating a good and effective 4 smoke management program on the North Coast. 5 In fact, we, along with the Air Resources Board 6 Compliance Division, have co-sponsored the first California 7 Smoke Management Training Workshop, which will be held in 8 our district on April 4th and 5th of this year. 9 Our staff, of course, will actively participate in 10 this training effort. 11 Our recommendation would be that the Air Resources 12 Board remand this package of proposed smoke management 13 guidelines and redirect its staff to develop agricultural 14 burning guidelines which carry out the mandates of state law 15 and tailor such guidelines to each air basin as needed. 16 This will assure that air quality circumstances and the need 17 for additional regulations in each air basin will be 18 addressed. 19 I ask that you strongly consider our 20 recommendation and we thank you for this opportunity to 21 comment on this very important issue to our district. 22 Wayne Morgan, our air pollution control officer, 23 is here today and will be testifying later in this hearing. 24 CHAIRMAN LLOYD: Thank you very much. 25 Questions from the board? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 47 1 No. 2 Thank you. 3 Next witness is Supervisor Josiassen from Butte 4 County. 5 And then we have Dr. Tuttle and then Ray Quintanar 6 from the US Forest Service. 7 MR. JOSIASSEN: Good morning. Thank you for this 8 opportunity. I am Curt Josiassen. I'm county supervisor 9 for the County of Butte. I sit as a member of the Butte 10 County Air Quality Management District governing board of 11 directors. 12 I appear before you today directed by our 13 governing board to provide testimony expressing concern 14 about the proposed title 17 administrative law revisions 15 under consideration. 16 In addition to being a county supervisor and 17 member of the AQMD governing board, I'm also Butte County's 18 representative to the Sacramento Valley Coordinating 19 Council. 20 I have been a life-long resident of Butte County 21 and own and manage Josiassen Farms, growing rice in the 22 Butte County area. 23 As both a grower and an elected official, I have 24 dealt with the agricultural burning issue for the past 25 25 years, including local air district burn rules and the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 48 1 development of the basin burn plan and implementing of the 2 existing title 17 administrative regulations. 3 Consequently, I am uniquely qualified to represent 4 our board and comment on title 17, on the title 17 proposal. 5 My testimony this morning will be followed by that 6 of Lawrence Odle, Butte County AQMD's air pollution control 7 officer, who will provide the technical basis for our 8 concerns and recommend specific actions. 9 In general, my comments will cover five policy 10 areas. 11 However, in preface, we wish to express our 12 appreciation for the efforts expended to date by the CARB 13 staff. 14 I know subject to -- I know all too well that the 15 topic of agricultural and prescribed burning is a sensitive 16 one, and subject to serious disagreements by people with the 17 best of intentions. 18 Nevertheless, while we understand the need to 19 update the existing title 17 regulation, we were convinced 20 revisions are necessary to the proposed title 17 provisions 21 to create a process that demands improvement of existing 22 burn rules and assures that title 17 provisions comply with 23 state law. 24 While the district supports many of the revisions, 25 we want the CARB board to keep in the mind the Health and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 49 1 Safety Code basis for the guidelines and the difference 2 between rulemaking and implementation of state law. 3 Specifically, I draw attention to the HSC sections 4 41856, 41857, 41858, and 41859 that established the 5 technical foundation and the distinction between guidelines 6 and rulemaking. 7 The district's major concern is that title 17 will 8 solidify the Sacramento Valley agricultural burning plan in 9 such a way that does not allow for the much needed 10 improvement of the program. 11 The Butte County AQMD has supported the Sacramento 12 Valley ag burn plan in the past years, hoping that the Air 13 Resources Board and members of the Sacramento Valley Air 14 Basin Technical Advisory Committee would make a concerted 15 effort to improve the scientific basis and technology behind 16 the plan. 17 There has recently been an expressed interest by 18 the Sacramento Valley districts to review the fundamentals 19 of the allocation process. 20 We are concerned that the title 17 process will 21 hinder the impetus for this review. 22 The smoke management program in the Sacramento 23 Valley has been effective in reducing the impacts. But why 24 has it been effective? Not because of the regional burn 25 plan or because of the use of CARB's acreage allocation PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 50 1 equation. 2 In reality, it has been effective in spite of the 3 existing plan and required use of the CARB allocation 4 equation. 5 Rather, the effectiveness is a direct result of 6 two factors, the gross reduction in ag burning and the local 7 districts spatial and temporal placement of daily burning, 8 that is, because the local districts are doing an excellent 9 job managing the placement and timing of the burns. 10 We are concerned then with administrative 11 regulations which solidify an unsound technical process for 12 determining how acreage is burned each day and 13 administrative regulations which will inhibit or remove the 14 local flexibility to serve our public in the best possible 15 way. 16 We believe, and I am sure you will agree, the Air 17 Resources Board has a duty if CARB is going to continue to 18 uphold the Sacramento Valley agricultural burning plan as a 19 model for the entire state to make an informed decision. 20 Our comments will focus on five areas: funding 21 for the proposed smoke management program; apparent proposed 22 exemptions for districts such as mentioned in the staff 23 report for the Bay Area Air Quality Management District; 24 different treatment of the Sacramento Valley air districts 25 in title 17; effectiveness of local smoke management program PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 51 1 implementation; and Butte County Air Quality Management 2 District's concerns regarding the Sacramento Valley 3 agricultural burning plan. 4 In summary, we recommend that you do not take 5 action on the title 17 revisions as proposed today, but 6 remand the proposal to CARB staff with specific guidance to 7 seek language to address many of the issues raised today, 8 including those presented by Butte County AQMD. 9 With your chair's approval, I will now request 10 Butte's air program director and APCO, Lawrence Odle, to 11 comment further on the basis for our district's concerns and 12 specific technical and policy areas in the proposed title 17 13 revisions before you. 14 CHAIRMAN LLOYD: Your request, yes. 15 Good morning, Larry. Good to see you again. 16 MR. ODLE: Good morning. 17 Thank you, Supervisor Josiassen. 18 I guess in preface I would also like to extend our 19 congratulations to the Senate approval confirmation of the 20 members. 21 Dr. Lloyd, distinguished members of the Air 22 Resources Board, I am Lawrence Odle, director and air 23 pollution control officer for Butte County AQMD. 24 My background allows me to comment on somewhat of 25 a unique perspective from title 17 provisions. I have 30 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 52 1 years in the field of air quality management. I have served 2 as the executive director for three separate multi-county 3 air quality management programs. I am a former director for 4 the Center for Emissions Research Analysis and 5 Certification, and a former principal environmental 6 scientist for a electric utility company. 7 Today I appear before you in the capacity as the 8 air pollution control officer for Butte County. It is my 9 responsibility to enforce the associated state law and 10 district burn regulations including whatever title 17 11 revisions you act on in an equitable, fair, and consistent 12 manner throughout Butte County. 13 As Supervisor Josiassen indicated, I also prefaced 14 my comments with the appreciation of your staff for doing a 15 yeoman's job in shepherding the program the year, year and a 16 half, through the many workshops. We've submitted a number 17 of comments and many of our comments have been incorporated 18 into the draft before you, and for that we are very 19 appreciative. 20 However, title 17 regulations are not ready for 21 your approval today. We do continue to have significant 22 concerns and would like to see improvements made in certain 23 areas. In fact, the improvements are so important that our 24 district governing board will review the merits of whether 25 or not to continue as a member of the Joint Powers Agreement PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 53 1 in the Sacramento Valley air basin, and we will also review 2 the merits of whether Butte County wants to step outside the 3 system and initiate it's own daily allocation acreage. 4 I'm certain that reasons for our concerns will 5 become evident as we go through some of our testimony. 6 I ask as we present our comments that you ask 7 yourselves whether the issues that we're raising have 8 merits. If so, whether the public and the agricultural 9 communities deserve increased scrutiny on the title 17 10 proposal before you. 11 Ask yourself if your paycheck depended upon the 12 science that is used in these determinations, could you make 13 the house rent. If the answer at the close of the hearing 14 is no, then we encourage you to remand the title 17 to your 15 staff and provide specific guidance on the issues raised. 16 We encourage you to demand that good science be 17 the foundation of the decisions, the policies and 18 regulations. 19 If you as the highest state air quality agency in 20 the state, and one of the most foremost in the nation do not 21 make that demand, who will? 22 Our comments are divided into two areas. The 23 first area refers to those issues which reflect all of the 24 districts in the State of California on the title 17. 25 CHAIRMAN LLOYD: Larry, can I ask roughly how long PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 54 1 your presentation will be? 2 MR. ODLE: About ten minutes. If not, I'll make 3 it ten minutes. 4 CHAIRMAN LLOYD: I appreciate it. We've got a lot 5 of witnesses to come. 6 MR. ODLE: I'd like to introduce Exhibit A for 7 just a second and ask you, would you as a elected or 8 appointed official adopt and mandate your local district a 9 program which is based on 1970s science and technology, a 10 program which the results show a four percent probability 11 that the results are going to be applied, a program where 12 there's a 96 percent probability that the results can't be 13 used, a program which requires 96 percent of the days that 14 the results have to be tweaked subjective by the basin 15 coordinator, a program where 65 percent of the days the 16 allocation equation results is more than twice the initial 17 allocation, a program where 80 percent of the days you've 18 got the same allocation, a program which allows the CARB 19 staff to initiate tests with essentially no limitations, 20 except that they can do that over a three-year period. 21 I suggest to you that you wouldn't accept this 22 kind of a proposal from any industry to meet the process. 23 If you act on the regulations before you today in 24 the format that they are there, you will be essentially 25 grandfathering the Sacramento Valley basin plan, which does PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 55 1 exactly this, and these numbers are calculated from the 1999 2 data. 3 Other areas are the program funding that was 4 raised. CARB must ensure that the smoke -- the state 5 agencies abide substantively and procedurally. That means 6 they've got to pay the fees and they've got to go through 7 the process. 8 The proposed exemptions allows an air district to 9 demonstrate based on historical information that a burn 10 authorization system is not required. 11 We acknowledge that this proposed exemption would 12 not apply to prescribed burning. We object to the example 13 of the staff report on page 29 where the Bay Area Air 14 Quality Management District is presented as having small 15 amounts of crop waste with burning, with no reports of 16 public complaints or smoke. Tule burning from the Bay Area 17 district has historically resulted in complaints in smoke 18 impacts in the populated areas, complaints which ironically 19 the local ag community is blamed for and only through 20 additional efforts are we able to determine that it was tule 21 burns. 22 Third area is lighting techniques. Lighting 23 technique restrictions for field crops are incorporated in 24 title 17, that's section 8150. They need to be removed. 25 The statistical data found in studies done by Darling in '71 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 56 1 and '79 and even more recently several analysis show that 2 there is no statistical significance on the method of 3 lighting. The analysis of data show that the particulate 4 emissions from head fire burnings are actually lower than 5 from backfiring. That's a fairly important issue to the ag 6 people in the field. 7 The test criteria, section 8179, authorizes CARB 8 to use alternate criteria for setting no burn days on test 9 basis. 10 This is an inappropriate delegation of rulemaking 11 to CARB staff to decide what days should or should not allow 12 certain restrictions. 13 We're suggesting that the revisions include a test 14 protocol, that is you direct your staff to develop a test 15 protocol process that says this is what we're going to test, 16 this is what we're going to look for and we'll get all done 17 with it, we're going to turn around and submit the results 18 to those of you that participated in that test so you can 19 analyze it. That's not currently done. We may get some 20 numbers, but we don't get any test results back. 21 Enforcement of the prescribed burning tools. 22 Provisions include the payment of fees, submittal of smoke 23 management plan and applicable public agencies as well as 24 individuals. These public agencies are not limited just to 25 the obvious. They also include California Division of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 57 1 Forestry, Bureau of Land Management, Forest Service, 2 National Park Service. 3 In the past, and you heard it earlier, it appears 4 that CARB staff has sought to address these issues by 5 developing agreements between CARB and the public agencies. 6 We're concerned that the enforcement of these 7 agreements may not necessarily be an active issue. Examples 8 of circumstances where direct enforcement appeared 9 appropriate, but which apparently has not occurred, include 10 the 1977 US Forest Service Beaver Creek prescribed burn and 11 the November 1999 US Forest Service prescribed burn in 12 Tahoe. Both of these caused significant impacts. At least 13 in one of them the smoke in Butte County caused a reduction 14 of visibility to less than a mile and that was over 150 15 miles away. 16 There are several provisions in the existing title 17 17 that are confusing, and I'll just, without detailing 18 those, I'll just summarize them. 19 The word updates, for example, in 8160, the 20 ability of local districts to have their authority confirmed 21 determining authorization at any time prior to ignition of 22 conditions, if the smoke impact in sensitive areas occurs. 23 The definition of air quality you have is not 24 consistent with what's in the Health and Safety Code. You 25 added as indicated or is defined as indicated by the state PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 58 1 ambient air quality standards in section 8100, so you've 2 given yourselves a connotation that suggests you're going to 3 redefine air quality perhaps at some point down the road. 4 Comments on title 17 provisions which have the 5 effect of solidifying the use of subjectivity rather than a 6 science. 7 First, unequal treatment of Sacramento Valley air 8 districts. 9 Essentially looking at the existing title 17 10 program you'll see that in the Sacramento Valley district 11 programs we now have under the current law a required annual 12 review. Other districts there's no scheduled review 13 required. 14 We have a mandatory regional program. In other 15 districts there's an optional regional program. 16 No individual district program is allowed, 17 essentially, but individual district programs are allowed in 18 other districts. 19 Requires the use of this CARB theoretical daily 20 equation, and that's an important issue as you'll see in a 21 second. No equation is required, yet, although the rest of 22 the districts might look forward to that down the road. 23 Requires a basin coordinator. There's no basin 24 coordinator required. Basin coordinator costs us $10,000 a 25 month, four months out of the year, and 96 percent of the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 59 1 time makes subjective determinations. 2 We firmly believe that the forecasting that exists 3 in the local programs can be improved, with the application 4 of current science and available technology. Yet there's 5 been no significant move to do in the past many years. 6 Concerns on the existing Sacramento Valley plan 7 that you yourself are going to solidify if you adopt the 8 title 17 proposals as they exist include a number of items. 9 Consider, for example, the subjective nature of 10 the plan before you, and this is held up as a model for the 11 rest of the states -- excuse me, for the rest of the 12 districts in the state to consider. 13 We have four days here, October 6, 16th, 28th and 14 November 3rd. The way this system works is that a 15 theoretical equation that is required to be used by CARB 16 staff. You'll see in column 21, theoretical equation, 17 October 6, popped out 17,891 acres, yet the initial 18 allocation was 2,000, and by the end of the day we had 3400. 19 There's a difference there of 15,000 acres. 20 You can compare that to something that's November 21 3rd where the theoretical equation popped out 5200 acres and 22 only 2,000 acres existed. 23 There might be some logic in that if you could -- 24 if you had the ability to look at all of the data that 25 exists. But instead you're mandating that we look at just PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 60 1 selective data. You're mandating that we look at the wind 2 direction, the speed, the stability and coefficient of haze. 3 It doesn't seem to matter which way the wind blows, it 4 doesn't seem to matter what the stability is, it doesn't 5 seem to matter what the coefficient of haze is, you're still 6 getting the same allocation. This is not good science. 7 But science can be applied. 8 In addition we have asked, according to the Health 9 and Safety Code, for the technical foundation for certain 10 elements of the proposal. 11 For example, the use of the 500 millibar level 12 that's contained in title 17. This 500 millibar level was 13 apparently developed in the 1970s by CARB, and while we've 14 asked for that scientific basis, which is provided for in 15 HSC 41857, it's not been provided. 16 And we may agree that that's correct, but we need 17 the ability to at least review what the basis is for those. 18 There may be other factors that we should consider. 19 The issue here isn't so much the results, it's the 20 process. We have to find a way to demand that that process 21 perpetually improves the decision-making process. We don't 22 have to get there today. We just have to have that process 23 that demands it. 24 The basin coordinator is an issue of concern. 25 Recognizing the potential subjectivity which is applied to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 61 1 the basin coordinator in the Sac Valley, the fact that 2 they're independent contracts with other districts, the fact 3 that we're paying 10,000 bucks a month for this position, it 4 demands that there be some kind of a conflict of interest 5 provision incorporated in the process. 6 The update procedures for the acreage need to be 7 developed. Right now it just sort of happens. It's 8 tweaked. It needs to be developed substantially. 9 Their burn hours need to be determined based on 10 the local level. Right now there's no real science basis 11 for what those burn hours are. In fact we don't even change 12 them when daylight savings goes around. 13 Just by way of summary to the board in terms of 14 the recommendations, ask ourselves what can the board do 15 today to address these concerns. 16 We believe that you could adopt the revisions with 17 the proposal with some revisions, but that's not going to 18 get us where we want. 19 What we are asking is that you look to the staff, 20 that you step out of the box the staff has given you, and 21 you say we support the smoke management plan concept, but we 22 want these issues developed and direct the staff to go 23 forward and actually develop responses to each of these 24 issues. 25 First, we'd like you to assure that local PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 62 1 districts retain that primary authority to implement the 2 local program. 3 Second, we'd like to require the development of 4 those procedures for improving the accuracy, reliability and 5 usefulness of the allocation process. 6 Third, we'd like to require the development of a 7 test protocol by CARB staff so that when they do a test, we 8 all know what the test is going to be and we all get a 9 chance to participate in the analysis of results. 10 We'd like language added that requires state 11 agencies abide substantively and procedurally with local 12 districts' smoke management plans, including the payment of 13 applicable fees. 14 We'd like to direct that title 17 requirements be 15 applied equitably throughout the entire state. 16 And that the Bay Area district not have those tule 17 burns exempted from this process. 18 Remove the lighting techniques from restrictions, 19 since the data available contradicts the need for that. In 20 fact your own staff report early on contained a summary of 21 emission factors which clearly supported the need to remove 22 lighting techniques. 23 We suggest you delete the basin coordinator 24 requirement in 8155, or in the alternative you recognize the 25 subjective nature of the decisions that are being made and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 63 1 incorporate some type of conflict of interest provision. 2 Lastly, we ask that you direct staff to 3 consistently enforce the title 17 throughout the state, 4 including the holding other state and federal agencies 5 responsible for the actions in the way that you expect us to 6 hold the local ag community responsible for their actions. 7 We look forward to working with CARB on the title 8 17 changes in the future and encourage your board to take 9 reasonable action to ensure that the future title 17 10 provisions will incorporate a process which perpetually 11 seeks to improve itself in the science of the daily 12 allocations. 13 In the shadow of the MTBE issues, we should pay 14 heightened scrutiny to the need to develop sound science for 15 these policies, procedures and regulations. 16 Thank you for your attention, Mr. Chair and 17 members of the board. 18 CHAIRMAN LLOYD: That's a bit of a stretch there, 19 Larry, on the MTBE issue, but let it pass. 20 I would like to ask a staff in this case, and I 21 can see where you're coming from vis-a-vis the initial 22 allocation and the desire, I guess, to burn more when 23 conditions allow, supposing that was the issue of how you 24 might get greater burn or more allocation on good burn days, 25 how would staff go about looking at that? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 64 1 MS. TERRY: Just as a introductory comment, I'd 2 like to say that certainly we agree with Larry on the need 3 to continue to improve the programs, but at the same time we 4 really do believe that the program in place has been 5 extremely successful. And that that is one of the 6 rationales for improving the programs statewide. 7 On the issue of the allocations, as a matter of 8 practice there is very close collaboration between ARB staff 9 and the basin coordinator on those daily decisions, and we 10 certainly think that has played into the success of the 11 program to date. 12 But I think that given Larry's concerns about 13 that, that direction from the board to continue to work that 14 process in a cooperative way with the rest of the basin 15 council is essential. 16 The fundamental requirements of the current burn 17 plan were developed through a consensus process, and 18 throughout our development of the rulemaking it's become 19 clear that we've got to come to agreement in a cooperative 20 way on how these programs work at the local level. 21 So we are there as staff to help that process move 22 forward as this program is implemented down the road. 23 CHAIRMAN LLOYD: I'd certainly like at the end 24 here, at least from my perspective, come back to staff and 25 look at this issue about the Sacramento plan and how that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 65 1 fits the rest of the state. That seems to be the issue, the 2 second one we've heard here. 3 MR. KENNY: If I could address that real quickly. 4 One of the things you see when you look at the 5 chart there is the theoretical allocations and then the 6 initial and final allocations. 7 The theoretical allocations essentially come from 8 an equation that was provided by the local districts to us. 9 Right now we don't have the absolute authority to change 10 those allocation equations. What we would have to do is 11 essentially reject them if they don't think they're 12 appropriate and then the previous year's plan is in place. 13 We do have a provision essentially that we're 14 proposing to you today that would allow us in the event that 15 we thought it was appropriate to change those equations and 16 we could not reach consensus with the local districts, to 17 bring that issue before the board. 18 So that's one of the proposals that's before you. 19 The other element that's very important here, 20 though, is that those theoretical allocation equations are a 21 starting point. What really becomes the key is that when 22 you look at the initial and the final allocations, those 23 numbers reflect the judgment that is essentially interjected 24 into the process on a daily basis and those are the numbers 25 that really reflect the fact that the meteorology may or may PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 66 1 not be able to absorb on a daily basis what we think is 2 appropriate in order to minimize smoke impacts. 3 So although the allocation numbers on the 4 theoretical side may be high, those don't reflect that human 5 judgment factor that actually is part of this entire 6 process. 7 CHAIRMAN LLOYD: We may come back to that, but I 8 think it was very helpful to explore that issue. 9 Any questions? 10 Yes, Ms. D'Adamo. 11 BOARD MEMBER D'ADAMO: Could staff respond to the 12 request for the establishment of a test protocol? 13 MS. TERRY: Actually, that's what we envision with 14 the language in the regulation. Several districts were 15 interested in updating the criteria, because they have been 16 on the books for some time, and we certainly agree. And we 17 think that rather than change the regulation and put new 18 criteria in place without testing them, we really think to 19 provide the science we need here we want to have the ability 20 in the regs to allow a test protocol to be developed. 21 So certainly that would be the first thing staff 22 would do is to work with the districts, develop a test 23 protocol that ARB staff and technical staff of the districts 24 agree upon, put that test protocol into place for 25 essentially a season, see how well it works, and then our PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 67 1 commitment was to come back to the board next year with 2 recommendations on memorializing those criteria in the 3 regulation itself. 4 But we do agree a test protocol is critical and 5 then trying it out for a season is essential. 6 CHAIRMAN LLOYD: Question or comments from the 7 board at this time? 8 With that, the next witness is Dr. Andrea Tuttle, 9 director of the California Department of Forestry and Fire 10 Prevention -- Protection. 11 DR. TUTTLE: Good morning, Dr. Lloyd and members. 12 I'm Andrea Tuttle, director of the California Department of 13 Forestry and Fire Protection. 14 We very much appreciate the opportunity to provide 15 further comment on your proposed amendments to your 16 agricultural burning guidelines. 17 CDF has enjoyed a longstanding, cooperative 18 relationship with CARB, and we look forward to continuing 19 this open collaboration. 20 We are in full support of your effort to protect 21 air quality by improving coordination of burning through 22 revision of the smoke management rules. 23 And we're pleased that you intend to accommodate 24 the appropriate use of prescribed fire and not prohibit its 25 use. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 68 1 Our staffs have been working together for the last 2 two years on these proposals and this has been an 3 outstanding example of how agencies with different missions 4 can find solutions to meet both our needs. 5 CDF and the Air Resources Board share a common 6 mandate to protect the health and safety of Californians. 7 Over time our two departments have worked closely in a 8 variety of areas. For example, we participate with the 9 board and the local air districts in building air monitoring 10 equipment in the San Joaquin Valley, such as our monitoring 11 trailer, and we're also working aggressively with the 12 Resource Agency Working Group to increase the number of 13 alternative fueled vehicles in our nonemergency fleet. 14 Prescribed fire is a critical tool for CDF in the 15 prevention of catastrophic fire in the state. Our 16 Mediterranean and our fuel-rich environment place us among 17 the areas of highest risk for wildfires in the world. 18 Due to a long history of aggressive fire 19 suppression in the state, fuel loads have grown and risks of 20 catastrophic wildfire have increased as residents continue 21 to move into the urban-wildland interface. 22 And even if the global warming models are even 23 partially correct, they all seem to indicate that fire, 24 weather and fuel conditions will only become more severe 25 with time. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 69 1 The California Department of Forestry and Fire 2 Protection is the state's proud fire department. And CDF 3 firefighters are recognized worldwide for their rapid 4 response, their professionalism, their courage and their 5 safety record. 6 Every year we see the challenges they face in 7 suppressing wildfire on the thousands of acres that burn. 8 Certainly last summer has been referred to here. We all 9 here in Sacramento experienced weeks of dense smoke from the 10 fires in the north. 11 Last August's lightning siege, coupled with a hot 12 dry fall, produced the most expensive fire season on record 13 and the fifth highest number of acres burned on CDF's 14 protection area since the 1940s. 15 But as successful as CDF is in its strong initial 16 attack, California cannot afford to rely on fire suppression 17 alone. We must also work to reduce fuels, and an active 18 prescribed fire program is crucial to this goal. 19 We also utilize biomass alternatives where 20 possible such as in Shasta County, and mechanical 21 treatments, and we support those programs. 22 CDF's mission is to protect the people of 23 California from fires as well as protecting and enhancing 24 forest, range and watershed values, providing social, 25 economic and environmental benefits to rural and urban PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 70 1 citizens. 2 This mission statement and the California fire 3 plan provide the framework and direction for most of our 4 activities in our vegetation management program where we 5 target fuel reduction projects to areas with the highest 6 resources at risk. 7 The VMP program is based on cooperation with 8 private landowners, and has been functional since 1981. 9 Since then, CDF has burned an average of 65 to 70 10 projects per year comprising around 40,0000 acres a year. 11 These projects are targeted to reduce fire risk and are 12 located in a range of areas from very remote to the urban 13 interface. 14 In your staff presentation you saw probably two of 15 the worst examples of prescribed fires that were either 16 poorly planned or the plan was not followed. 17 The vast majority of prescribed fires conducted by 18 the Bureau of Land Management, the Forest Service, the 19 National Park Service and CDF are well planned and executed. 20 The short video that we'll show you in a moment is 21 a good example of a successful project. It demonstrates the 22 great value of the VMP program and how the results of a 23 project affected the subsequent wildfire which happened this 24 past summer. It's an excellent example of the type of VMP 25 projects that CDF cooperates with. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 71 1 The project took place in the Cezar Road area of 2 Ventura County near Ojai. We'll start the video here and as 3 you keep -- as you watch it, please keep in mind three 4 points. First, that prescribed fire works -- we'll go ahead 5 and watch it and then I'll -- 6 (Video shown.) 7 DR. TUTTLE: We do have a map here that's a little 8 bit more explanatory. 9 The area right in here was the treated -- is the 10 area that was treated. And the fire is almost the entire 11 top of the rest of the wildland. When the fire came down -- 12 this isn't going to work. The fire came through here. It 13 dropped down once, it hit the prescribed burn area, the 14 treated, and then these homes are the ones that were saved. 15 There's several points to be made here. 16 One of course is that collaboration is essential. 17 This project included the support and involvement of the 18 local Ventura County air district, the local homeowners and 19 growers, CDF and inmate crews, the Forest Service, FEMA, 20 OES, the local Fire Safe Council and the Ventura County Fire 21 District. 22 Chief Bob Roper put together this hand-out that 23 we've distributed with you for more details on the project. 24 So coming back to your proposed regulations, the 25 majority of CDF's concerns have been addressed during the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 72 1 development of the rule. And I thank you again for the 2 cooperation of your staff during this period. 3 And some other modifications are proposed in your 4 additional staff improvements. 5 We still have three areas, though, where we do 6 have some significant concern. 7 And the first one, of course, has to do with fees. 8 CDF recognizes that local air districts may need to charge 9 fees to defray the cost of administering the smoke 10 management program. We trust that the districts, with 11 direction from your board, will adopt realistic fees that do 12 not discourage or inhibit the use of prescribed fire. 13 The projects that CDF is involved with are all 14 done for public benefit and they are the result of private 15 landowners agreeing to have these projects conducted. 16 Some air districts are already proposing to charge 17 as much as $6 per acre for reviewing smoke management plans, 18 which we believe already come very close to providing the 19 information that you need. 20 At this rate, the cost to CDF would be anywhere 21 from 70,000 to 240,000 dollars just for plan review, and 22 this exceeds our O and E budget for this part of the 23 project. 24 Secondly, we need or would appreciate 25 standardizing the format of smoke management plans. CDF has PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 73 1 statewide responsibility and we conduct projects across and 2 within almost all of your air districts, and would greatly 3 benefit from a uniform format for smoke management plans 4 that we can train our staff to use. 5 CDF currently has a comprehensive format for 6 preparing burn plans, and we would offer this as a framework 7 for creating a statewide format that meets your needs. 8 To facilitate this end, we would request that your 9 board bring the districts together with CDF and the other 10 land management agencies that burn to work out a standard 11 format. 12 The third concern has to do with program 13 evaluation. We recognize that it is hard to predict all 14 impacts of regulation and agreements ahead of time. 15 We would request that your board critically 16 evaluate the true impacts of these amendments after they've 17 been in place, say for a year or so, and look at them 18 especially in terms of how the fee structure has developed, 19 the review process on the plans and the overall impacts on 20 CDF vegetation management program. 21 This will help us all assess the success of these 22 title 17 revisions and identify remaining issues that may 23 need to be resolved. 24 In conclusion, as stated in your staff report, the 25 intent of these amendments to title 17 is to successfully PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 74 1 improve interagency cooperation, ensure the use of real-time 2 metrological data to avoid smoke episodes, refine program 3 design to provide adequate opportunity for necessary open 4 burning, while protecting public health and air quality. 5 Burn opportunities are needed for purposes such as 6 public safety, wildfire prevention, forest health, 7 ecological concerns, economic need and disease and pest 8 prevention. 9 CDF fully concurs with this statement and supports 10 you in this goal. 11 I'd like to personally thank Dr. Lloyd and Michael 12 Kenny and your staff for your extensive cooperation, your 13 willingness to respond to our concerns regarding the 24-hour 14 notice commitments, the standardized plans, discussion of 15 alternatives, CEQA compliance and monitoring is greatly 16 appreciated. 17 We look forward to continued coordination with 18 your staff and you as you complete work on this and 19 implement the program. 20 Thank you very much. 21 CHAIRMAN LLOYD: Thank you very much, Dr. Tuttle. 22 I'd also like to reiterate my comments and commend 23 you on your personal commitment and leadership to work with 24 us through these tough issues. I think it's been a model of 25 interagency cooperation and I think it's a great example. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 75 1 So thank you very much indeed. 2 DR. TUTTLE: Thank you. 3 CHAIRMAN LLOYD: I guess we've got a question from 4 the board I'd like to entertain, but the other ones are your 5 recommendations there I think seem to be very reasonable 6 requests. I'd like maybe to hear from the staff. I'm sure 7 the board members would like to hear that. 8 MR. KENNY: With regard to the recommendation, 9 those are things that we have incorporated basically into 10 the proposal and we do plan to look at the program, 11 essentially evaluate the program and report back to the 12 board on all those things. 13 BOARD MEMBER RIORDAN: Mr. Chairman, if I might, I 14 think the idea of having standardized plans is a very 15 helpful one particularly for agencies. Again, they deal 16 with each and every air pollution control district probably 17 throughout California with very rare exception. I think 18 that would be helpful for everybody. I would really 19 encourage that meeting and that idea, that standardized 20 plan. 21 BOARD MEMBER C.H. FRIEDMAN: Mr. Chairman, I think 22 that was incorporated under efficient use of resources, as I 23 recall. It was proposed that ARB will work with agencies 24 and prescribed burns to develop a uniform smoke management 25 plan format. So apparently that suggestion has been PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 76 1 included. 2 MR. KENNY: It's our plan to convene all the 3 agencies together as soon as we can and begin that process 4 of discussion to try to get there. 5 BOARD MEMBER C.H. FRIEDMAN: But I didn't hear, 6 maybe I missed it, that there was a plan in the plan to 7 reevaluate in two years. 8 MR. KENNY: It's actually probably not in the 9 regulatory proposal itself, but it is one of the things that 10 we are planning to bring back to the board because we think 11 it is important to see how this is working once we have it 12 in place. 13 BOARD MEMBER C.H. FRIEDMAN: You also are going to 14 monitor the fees and assure equity? 15 MR. KENNY: Yes. 16 BOARD MEMBER C.H. FRIEDMAN: We don't want to 17 inhibit prescribed burning that saves tremendous property 18 and human and equine or other loss in the case of the 19 conflagration. 20 MR. KENNY: We agree. Actually one of the reasons 21 we wanted to bring this item to the board is that we do 22 anticipate an increase in prescribed burning over the next 23 several years in order to make sure that the Forest Service 24 can manage the land, and at the same time we wanted to 25 assure that as those increases in prescribed burning occur PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 77 1 that in fact we can have cooperation and coordination with 2 regard to potential smoke impacts. 3 BOARD MEMBER C.H. FRIEDMAN: Because on 4 cost-benefit analysis it's clear that intelligent foresight 5 and planned burning will save a lot of money in the long 6 run. 7 CHAIRMAN LLOYD: Yes. I know Professor Friedman, 8 I had talked to staff about this also and that maybe there 9 might be a tendency in some of the districts to look at this 10 as a target of opportunity to go after some fees and I think 11 staff is very much aware to scrutinize these requests so 12 that that doesn't happen. 13 Thank you very much. 14 DR. TUTTLE: Thank you very much. 15 CHAIRMAN LLOYD: Our next speaker is Ray Quintanar 16 from the US Forest Service, and after that Earl Withycomb 17 and then Manuel Cunha. 18 I will say, by the way, because of the number of 19 people here, after our next witness I'm going to hold 20 everybody to a maximum of five minutes. Anything under five 21 minutes would also be appreciated. 22 The reason I say that is we have about a total 23 here of I think it's 26 witnesses total, and we're only now 24 at number six. 25 MR. QUINTANAR: Thank you, Mr. Chair. As you can PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 78 1 see, my speech will be five minutes. 2 First, I want to thank the board for its 3 extraordinary efforts and its outreach to address this 4 issue. 5 I think it's a model for what you've done and what 6 you continue to do in this real difficult issue to address 7 smoke management, called amendment 17, title 17. 8 I'm Ray Quintanar. I'm the director for Fire and 9 Aviation Management for the Forest Service in what we call 10 the Pacific Southwest Region, which is the State of 11 California. 12 Of the 100 million acres in California, 20 million 13 acres of those comprise US Forest Service lands for which we 14 have direct stewardship. 15 Interestingly enough, of those 20 million acres, 16 over half the natural watersheds that occur in the State of 17 California occur on those 20 million acres. We're very 18 sensitive to the state ability of protection of our natural 19 resources. At the same time, using biomass, timber 20 harvesting methods doesn't always work and is not always 21 available for us. At the same time we also have the 22 opportunity because we have fire-dependent ecosystems to use 23 prescribed fire. And again that's something we can't use 24 all the time in every case. 25 However, we do find that at the elevations of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 79 1 4,000 foot and above where most of our lands or stewardship 2 for which we have jurisdiction occur, we have opportunities 3 that other groups may not have the opportunity to use. 4 We're very committed to the continued efforts of 5 maintaining the health and viability of our natural 6 resources, at the same time to our citizenry, and that 7 involves the use of smoke so that we don't end up in a 8 situation as we had in the basin. 9 For information, what we did with the basin when 10 we found out about the smoke event, at this time we 11 suspended all burn operations for the basin until they meet 12 several concerns that we have, and we appreciate the board's 13 efforts and participation in that. 14 I want to give special recognition to a member of 15 your board, and that would be director Michael Kenny and his 16 staff, who, without their patience, their understanding, 17 their consistency we would not have been able to come to 18 some common understanding and some common goals to be able 19 to meet each agency's efforts and objectives. 20 We will continue our commitment to work with the 21 California Air Resources Board to meet those common goals. 22 I will echo the concerns from Director Tuttle. 23 Fees are certainly an issue for us, as well as having 24 consistency among the air districts. When you scatter 20 25 million acres throughout the state and you have to deal with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 80 1 three or four air districts at the same time, it becomes 2 rather difficult to be able to manage that. Your assistance 3 and your help would certainly help us. 4 With that, again thank you for the opportunity to 5 give a small presentation and again special recognition to 6 again to Michael Kenny and his staff. You've done an 7 extraordinary job and we appreciate it. 8 CHAIRMAN LLOYD: I'd also like to thank you and 9 your staff again for the special cooperation and ability to 10 work through these issues. So thank you very much indeed 11 also. 12 MR. QUINTANAR: Thank you, Mr. Chair. 13 CHAIRMAN LLOYD: Any questions or comments from 14 the board? 15 Thank you very much indeed. 16 Next witness is Earl Withycomb, with the American 17 Lung Association. 18 As I said, because of the number of people, I'd 19 like to try to keep presentations to five minutes max. 20 MR. WITHYCOMB: Thank you, Mr. Chairman, and thank 21 you for this opportunity to comment on a program and effort 22 that we laud the Air Resources Board for pursuing. We think 23 this is an air quality problem whose presence and impact is 24 increasing and needs the attention of your focus. 25 That said, my name is Earl Withycomb, member of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 81 1 the board of directors of the American Lung Association of 2 California. 3 I'm testifying today on behalf of the American 4 Lung Association of California and its medical arm, the 5 California Thoracic Society. 6 We're extremely concerned about the air quality 7 and public health impacts of open field burning, whether it 8 includes burning rice straw, other agricultural crops or 9 forest materials. 10 Most of the particles emitted from burning are 11 fine particles. Those particles less than ten microns and 12 many finer than two and a half microns that cause serious 13 public health problems. These fine particles bypass 14 respiratory defense mechanisms and are inhaled deep into the 15 lungs. Numerous studies link particulates to a wide range 16 of public health impacts, including reduced lung function, 17 asthma attacks, exacerbation of health and lung diseases, as 18 well as premature death. 19 The health impacts of burning are most harmful to 20 sensitive populations, including asthmatics, those 21 individuals with existing heart and lung disease, the 22 elderly, infants and children. 23 Since asthma rates are steadily increasing with 24 over 2.5 million Californians suffering from asthma, 25 particulate pollution is a serious concern to our PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 82 1 organization. 2 The Lung Association has fought hard to phase out 3 rice burning in the Sacramento Valley and replace burning 4 with alternative uses of straw because of the health effects 5 associated with smoke incidents. 6 Communities in the Sacramento Valley are outraged 7 by the continued practice of open field burning, because so 8 many individuals, especially asthmatics and those with 9 chronic obstructive pulmonary disease, suffer when there are 10 rice smoke episodes. 11 While we appreciate the benefits of the smoke 12 management program in terms of reducing community exposure 13 to rice smoke, we believe that ultimately burning must be 14 phased out as feasible alternatives to burning are 15 developed. 16 While we applaud the ARB's efforts to manage smoke 17 emissions throughout the state with burn permits and smoke 18 management plans to reduce air quality impacts, we're 19 concerned that ARB's plan does not call for any overall 20 reduction in open field burning. In order to improve air 21 quality and public health, the Air Resources Board should 22 consider amendments to the proposed regulation to go beyond 23 just managing smoke and actually setting targets for 24 reducing particulate emissions over time from open field 25 burning. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 83 1 Thank you. And I'll be happy to answer any 2 questions. 3 CHAIRMAN LLOYD: Thank you very much. 4 Questions from the board? 5 Thank you. 6 Sorry. Professor Friedman. 7 BOARD MEMBER C.H. FRIEDMAN: Just actually a quick 8 question of staff. 9 Are we not -- apparently we are not trying to, as 10 such, reduce burning, but rather manage it to ameliorate the 11 worst consequences of it? 12 MR. KENNY: This is more of a management program. 13 BOARD MEMBER C.H. FRIEDMAN: Do we have authority 14 to go beyond that? 15 MR. KENNY: There are limitations in the Health 16 and Safety Code with regard to what we can do. I'll turn to 17 Legal, but I believe we have some fairly substantial 18 constraints. 19 MS. KRINSK: The Health and Safety Code authorizes 20 the Air Resources Board to reasonably regulate, but not 21 prohibit this type of burning, so you do have the authority 22 to limit the burning and reduce the burning to the extent 23 that the criteria in the Health and Safety Code such as 24 health, safety, technical and economic feasibility would 25 promote reduction of agricultural and prescribed burning. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 84 1 BOARD MEMBER C.H. FRIEDMAN: We've got a natural 2 tension between the needs to preserve ecological systems and 3 the need to preserve homes and life and habitat against 4 conflagrations and wildfires and all of these, they all 5 involve burning and burning causes smoke and particulates 6 and other things. 7 So the whole point is to achieve some kind of 8 balance and to manage. But manage does involve limitations, 9 regulations, and so I think we're trying to respond 10 responsibly. 11 Thank you. 12 CHAIRMAN LLOYD: Thank you very much. 13 Next Mr. Cunha, and then after that Mr. Greene, 14 Mr. Hill, Ms. Lee. 15 Again, I'd like to welcome you, Mr. Cunha. Very 16 good to see you back on your feet again. We missed you in 17 Washington. 18 MR. CUNHA: Thank God for drugs. I mean proper 19 drugs to get you well. Please take that, recorder, whoever 20 is recording, the good safe drugs. Okay. 21 It feels great to be up after seven weeks. 22 Again, I want to thank you, Mr. Chairman, 23 Dr. Lloyd, and members of the board, and especially our two 24 supervisors, as well as Dee Dee, Barbara Patrick and Dee 25 Dee. Thank you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 85 1 I'm here this morning on the behalf of the 2 coalition for the agricultural industry in support of the 3 attempt that the staff is attempting to do under title 17. 4 And in that presentation you have our short 5 paragraph, which is really probably some of you saying he's 6 been really sick, he lost it. Today I have such a short 7 little paragraph. 8 But we appreciate the staff's working with us, of 9 taking the comment period. When the plan is turned in it 10 didn't turn back to a district to give us time to review 11 that plan and work with the staff in a very honest, sincere 12 way to correct the problem if there is a disagreement 13 between when the plan comes to you and then it goes back to 14 us, because your staff is not accepting something. So we 15 appreciate that very much. 16 Also as a member now, and I'll end that part, as a 17 member of the USDA Air Quality Task Force that was appointed 18 by the Congress and by the White House to set up a group on 19 the USDA board to look at air quality across the country, we 20 just adopted a policy nationwide by USDA to deal with a burn 21 policy for agriculture, and EPA's developed a wildlands 22 prescribed burning policy for the forest and parks and those 23 people. 24 Our policy that we have now sent forward to EPA, 25 which they were a part, and they are a part of the task PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 86 1 force, falls right into line. There's one thing that was a 2 question that was just asked and that is are we trying to 3 reduce burning. 4 The agriculture industry wants to first thank 5 Governor Gray Davis for working with the economic summit 6 program that occurred in the San Joaquin Valley, allocating 7 credits as well as dollars to the agricultural burn biomass 8 facilities. So we can reduce that burning. And we are 9 after that. Our activity in the San Joaquin Valley is to 10 reduce burning to where it doesn't have an economic impact 11 on that farmer. Okay. 12 Secondly, I want to give credit to Kern County 13 called Project Clean Air. Project Clean Air is where 14 farmers sign up to reduce and do not do any burning. And 15 that has been a successful program implemented with our air 16 district. And I want to say that number is close to a 17 million acres over the last several years that has been not 18 burned. 19 So we are trying to meet those requirements as 20 what the Lung Association gentleman spoke about. We are 21 looking at that. 22 But a great support of that is the biomass program 23 that we are working with the Governor's office on to take 24 agricultural products, put them into a biomass facility, 25 versus having us burn those. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 87 1 From the USDA side, we see you coming in a 2 straight line with our policy and not in opposition. 3 Now, also from the policy end, I'm safe on this 4 one, is the fees. The USDA Air Quality Task Force is 5 greatly concerned because we heard a lot of comments on 6 burning from the sugar cane people down to the forest and 7 all those folks at various hearings throughout the United 8 States over this last year, and that was the equitability 9 of fees that everybody must pay their part. 10 The Forest Service, the parks, the growers, the 11 farmers, whatever way you want to define it, whoever enters 12 into a burn program or has to burn they must pay a fair fee 13 for what they're doing. Federal agencies and the Forest 14 Service and parks, the USDA, has recommended to the 15 appropriations committees to budget for such a thing, to 16 allow those states' agencies the monies to help manage their 17 burn programs with air districts. 18 So we have put a request to the Secretary of 19 Agriculture that fees have to be looked at now rather than 20 in the past when they never thought about a burning fee to 21 help implement the program with air districts. So we have 22 asked that to be done on the federal side to assist those 23 programs in the federal level. Okay. 24 Again, fees must be paid by all that are very fair 25 and appropriate fees, not something so somebody could go out PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 88 1 and buy a brand new Lexus or something, because we like 2 Volkswagens, okay. 3 But, again, I want to thank Mike Kenny and his 4 staff for working very closely. We're not the easiest ones 5 to work with in agriculture. I think our two board members 6 know that. But we do appreciate the staff working as many 7 workshops as they held. They did keep the agriculture 8 industry involved in every part of this. So we appreciate 9 that very much. 10 Thank you, Dr. Lloyd. 11 CHAIRMAN LLOYD: Thank you very much, Mr. Cunha. 12 Any questions or comments from the board? 13 Thank you. 14 Next speaker is Larry Greene from Yolo-Solano. 15 Also point out by the way that if you see board 16 members disappearing from time to time, lunch is at the 17 back. We're not going to take a formal lunch break. We 18 want to keep going. But people will be able to be kept 19 informed by the speaker at the back. 20 Thank you. 21 MR. GREENE: Good morning, Mr. Chairman, members 22 of the board. I'm Larry Greene, Yolo-Solano Air Quality 23 Management District, air pollution control officer and 24 current president of the California Air Pollution Control 25 Officers' Association. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 89 1 My testimony today is on behalf of the CAPCOA 2 board. 3 It has been a long and arduous process for all 4 parties to arrive at the update to title 17 being considered 5 by your board today. 6 CAPCOA supports the update and will continue to 7 work closely with the Air Resources Board staff in the 8 implementation of the regulation. 9 We would like to recognize the efforts of the Air 10 Resources Board staff to frame many conflicting ideas and 11 interests into a regulation which can protect public health, 12 support the continuing need for agricultural burning and 13 address public safety through prescribed burning. 14 CAPCOA strongly supports the recent agreement 15 between the Air Resources Board staff and CAPCOA to find a 16 more flexible way to deal with the concerns about 17 residential backyard burning, outside of the title 17 18 regulation. 19 We ask that your board approve that agreement. 20 We also would like to state that the extension 21 last fall of the workshop process for title 17 revisions was 22 very welcome and it allowed much more time to resolve key 23 issues resolving essential elements of this regulation. 24 CAPCOA also requests that the ARB staff remain 25 flexible during the implementation of this regulation. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 90 1 There are many factors which affect the success of a program 2 of this type, local geography and meteorology, the local mix 3 of industry and agricultural operations and the staffing at 4 local districts, to name a few. These differences will 5 require differing local solutions to implement an effective 6 smoke management program. 7 A number of districts, as you've already heard, 8 have started and we'll have some more districts who will 9 testify individually outlining local questions and issues 10 regarding aspects of this regulation. 11 CAPCOA supported the regulation before you does 12 not come without some substantial remaining issues. These 13 issues are largely outside the scope of the regulation and 14 matters which the staff here can affect. 15 However, they will impact our ability to make this 16 regulation a fact. The primary factor in the success that 17 you've already heard this from a number of people is 18 obtaining funding from districts to implement the program. 19 It is our belief that the initial ARB estimates of the costs 20 of the program underestimated fiscal impacts at the local 21 level and we've worked jointly with the ARB staff to clarify 22 the funding, and we felt a lot better about the numbers that 23 are in the current staff report. 24 We appreciate the willingness of the Air Resources 25 Board staff to work with districts to develop funding PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 91 1 sources to support both internal start-up costs and to allow 2 major prescribed burning sources, such as CDF, sufficient 3 funds to reimburse districts for operational costs. 4 We hope these efforts are successful. 5 Without additional funding for start-up and 6 operations, full implementation of this enhanced program 7 will be difficult for most air districts. 8 Another CAPCOA concern has been the availability 9 of supporting CEQA guidance from Air Resources Board for 10 districts to use and rule adoption and implementation of the 11 program at the local level. 12 The ARB staff is committed to work with us to 13 develop that necessary supporting documentation. 14 Finally, CAPCOA would like to go on record 15 supporting all efforts to provide alternatives to burning 16 such as biomass, composting, alternative daily landfill 17 cover, and other processes which reduce the fuel load prior 18 to burning. 19 All fuel and organic reduction programs come with 20 an environmental, social, economic cost, and burning should 21 be equally balanced with other alternatives which are 22 available. 23 Districts will work with the Air Resources Board 24 and locally to encourage these alternatives. 25 In closing, we support this regulation with the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 92 1 understanding that implementation will require extensive 2 coordination between the Air Resources Board and districts 3 over the next several years, to adopt a program and 4 individual locations and additional start-up and operational 5 funds must be obtain for districts. 6 Thank you. 7 CHAIRMAN LLOYD: Thank you, Larry, for your 8 leadership with CAPCOA and working with staff on this. 9 Any questions from the board, comments? 10 Yes, Supervisor Patrick. 11 BOARD MEMBER PATRICK: Just a comment and how 12 delighted I am that CAPCOA is going to be working with 13 staff, because you folks are on the front lines of all this, 14 and so I appreciate CAPCOA's willingness to be working with 15 the Air Resources Board and work out some of these issues on 16 behalf of your members. 17 MR. GREENE: Thank you. 18 BOARD MEMBER CALHOUN: I think I like to ask one 19 additional question. What kind of support did you get 20 within CAPCOA for support of the regulation? 21 MR. GREENE: It's been a very difficult process. 22 As you can see today, we have a number of districts who have 23 individual concerns. 24 Remember, we're an organization of 34 air 25 districts and people have differences of opinion as how PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 93 1 things should be applied. 2 The CAPCOA board, after working with the Air 3 Resources Board extensively, feels like there's enough 4 flexibility within the process for us to continue to work on 5 those differences. 6 However, their individual districts who would 7 rather see that flexibility up-front than behind, and I 8 understand their positions and how they feel about that. 9 Whenever you have so many people working on a 10 particular project, you're going to have a very hard time 11 reaching what would be a unanimous consensus. And I think 12 we've come a long ways from six months ago even today to be 13 able to see Mike smiling. He knows how hard -- even 14 yesterday we were putting some changes to this. 15 So it's been a hard process and I don't claim that 16 every district in California is happy with this, as you hear 17 today. We're optimistic as a board that we can continue to 18 work on these. And I think we at least mutually between us 19 understand what we think the differences are. We hope our 20 definitions of what those differences are are going to be 21 the same when we sit down and talk about them. 22 CHAIRMAN LLOYD: Thank you very much, Larry. 23 Next witness is Rod Hill, and there's Barbara Lee 24 and then Richard Baldwin. 25 MR. HILL: Good morning, Mr. Chairman and members PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 94 1 of the board. I'm Rod Hill, the air pollution control 2 officer for the Northern Sierra Air Quality Management 3 District. We serve Nevada, Plumas and Sierra Counties. 4 I provided some written comments a few weeks ago, 5 but since there's been some last-minute changes to the 6 proposed regulation, I feel compelled to provide some oral 7 testimony on several issues. 8 In general, CAPCOA -- the Northern Sierra Air 9 Quality Management District supports the amended changes to 10 the regulations, and we really appreciate the efforts that 11 Air Resources Board staff has made in trying to balance out 12 a lot of these difficult issues of concern. 13 However, there are issues of cost recovery and 14 alternatives to prescribed burning that I feel are 15 inadequately addressed. 16 Cost recovery. The Northern Sierra Air Quality 17 Management District is using about 65 percent of its state 18 subvention funding right now to subsidize our prescribed 19 burn program. 20 About 85 percent is -- it subsidizes about 85 of 21 our current smoke management program. 22 The proposed regulation would impose about 23 somewhere between 20 and 25 percent new additional costs to 24 our program, which would use up the rest of our state 25 subvention funding, if we don't increase fees. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 95 1 During the maintenance phase, if fees recovered 2 the full cost of the new program, we would have to increase 3 our fees by about eight times. We would have to charge 4 between $8 and $10 an acre to recover our -- to fully 5 recover our costs. 6 And start-up costs would be about $32,000. 7 So ask land managers whether or not they're going 8 to be able to do any burning at 8 to 10 dollars an acre, and 9 I think that the answer would probably most likely be that 10 there won't be much smoke to manage. We wouldn't need to 11 implement an improved smoke management program at all, but 12 that wouldn't solve the need to reduce vegetative fuels and 13 fire risks and manage our ecosystems. 14 So the Northern Sierra Air Quality Management 15 District requests that you direct staff to partner up with 16 air districts and find funding to implement the programs 17 required by the revised regulation. 18 On alternatives to prescribed burning, I had hoped 19 that there would be some strengthened requirements to more 20 strongly focus on alternatives, but I perceive that the 21 last-minute changes as an actual weakening. 22 The latest changes to the regulation have altered 23 the requirements for a realistic evaluation of alternatives 24 to prescribed burning. The reasoning provided was that 25 alternative treatments are evaluated sufficiently in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 96 1 environmental review processes, in accordance with CEQA and 2 the NEPA processes. 3 But the challenge that I see it is that in many 4 cases, if not most cases, the CEQA and NEPA environmental 5 documents have weak and incomplete or insufficient analysis 6 of alternatives. 7 Many of these evaluations to alternatives are 8 simply a sentence or two. The state uses blanket statements 9 and unsupported statements that alternatives are 10 economically not feasible. 11 Including an evaluation of the alternatives as 12 part of the title 17 regulations was an attempt to place 13 more focus on potential for alternative approaches to reduce 14 smoke emissions. 15 By removing those requirements, or at least 16 weakening the alternative approach, we failed to satisfy one 17 of the basic concepts in the US EPA's interim air quality 18 policy on wildland prescribed fire, which heavily stresses 19 the use of alternatives and pretreatments to prescribe a 20 fire. 21 Weakening the requirements related to alternatives 22 effectively weakens one of the four key objectives listed in 23 the ARB staff report for revising the title 17 regulation. 24 These objectives were listed on page five of the staff 25 report and weakening the requirement for the realistic PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 97 1 evaluation of alternatives from this regulation means that 2 air districts will have to expend additional scarce 3 resources, reviewing and commenting on CEQA and NEPA 4 documents, adding to the cost of smoke management program. 5 We'll need training on how to work with the CEQA 6 and NEPA process. Most air districts will not be able to 7 commit these resources, so we'll have to use other creative 8 means to mitigate smoke emissions and prevent smoke impacts. 9 To assist, I request that ARB provide some training or 10 assist districts, air districts, in the CEQA and NEPA 11 processes. 12 I strongly disagree with the plan to weaken the 13 requirement for an evaluation of alternatives in the title 14 17 regulation and I request that you reinstate the 15 requirement. If the evaluation has been sufficiently done, 16 then it should be easy enough to attach that evaluation to 17 our smoke management plans. The CEQA and NEPA evaluation is 18 what I'm referring to. 19 I also want to thank ARB staff for removing the 20 residential open burning sections from this regulation. 21 And I urge you to direct staff to find another 22 venue to address this very important aspect of this smoke 23 management program. 24 As far as what happens after this regulation is 25 adopted, I hope that the focus is the results, what are the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 98 1 results of the local programs. 2 It's important that ARB work closely with the 3 districts to implement the regulation while providing local 4 flexibility to design effective programs. This regulation 5 will do nothing to improve smoke management if air districts 6 don't develop and implement effective programs. Consistency 7 is a nice goal, but I hope you realize that there is too 8 much geographic diversity in California to attempt a 9 one-size-fits all approach. 10 I urge you to direct staff to allow districts as 11 much flexibility as they need to provide effective local 12 programs. Performance-based program evaluations should be 13 used, not a checklist approach. 14 Results of the key. Periodic evaluations are also 15 needed to improve our smoke management programs over time, 16 if the need is justified. 17 Again, performance and results of the key, I don't 18 mind making corrections to my smoke management program, as 19 long as the need is apparent but -- 20 CHAIRMAN LLOYD: Your five minutes is up. 21 MR. HILL: 9. Fair enough. 22 CHAIRMAN LLOYD: If you want to take one sentence 23 to finish up. 24 I just want to demonstrate to future speakers I do 25 have the capability of turning things off. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 99 1 MR. HILL: I really appreciate the opportunity to 2 talk to you, talk about some of the issues that concern the 3 Northern Sierra Air Quality Management District and I thank 4 you very much. 5 CHAIRMAN LLOYD: Thank you very much indeed. 6 Next is Ms. Lee, then Mr. Baldwin and then Mr. Rob 7 Reynolds. 8 MS. LEE: Good afternoon, Mr. Chairman, members of 9 the board. My name is Barbara Lee. I'm the air pollution 10 control officer in the Northern Sonoma County Air Pollution 11 Control District. I'm also the president-elect of the 12 California Air Pollution Control Officers' Association. 13 My comments today I am making in my role as the 14 air pollution control officer in Northern Sonoma, but the 15 issues that I raise have been brought to my attention in 16 part because of my efforts to bring CAPCOA to a coalition 17 where we have some agreement about where the program should 18 go, and they are definitely influenced by the concerns of 19 the other districts in the air basin that I am part of. 20 The Northern Sonoma District is part of the North 21 Coast air basin, which begins just north of Santa Rosa and 22 extends 250 miles to the Oregon border. It encompasses 23 coastal mountains and inland valleys with land that is by 24 terms deeply forested or oak-dotted hillsides, dense brush 25 and chaparral, wild grasslands, vineyards and other PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 100 1 agricultural crops. 2 The meteorology varies considerably from the 3 northern to the southern reaches of the air basin. It is 4 different inland from the coast and changes throughout the 5 course of the day. Sometimes this can happen drastically in 6 the space of only an hour. 7 The people who live in this air basin include 8 those who fear wildfires, who worry about the impacts of 9 smoke, who are concerned about ecosystem health and whose 10 livelihoods depend on timber or agriculture and the use of 11 fire. 12 In short, the terrain is complex, the weather 13 changeable and the needs are diverse. All of these things 14 make successful smoke management a delicate and difficult 15 problem. Yet by and large we have been successful. 16 This district has devoted considerable time and 17 effort in the last year working with ARB staff on smoke 18 management issues. I would like to recognize their efforts 19 to understand and address the concerns we have raised about 20 the proposal and in particular I appreciate the additional 21 time provided for this process and its implementation, and 22 the agreements that we have reached through the attention 23 ARB has given to the issues CAPCOA identified as critical to 24 the success of the program. 25 We agree that smoke management needs vary PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 101 1 considerably across the state and that local districts or 2 basins should be able to design the program that most 3 efficiently and effectively meets their needs. 4 The northern -- we also agreed to find a more 5 effective way to deal with concerns about residential 6 backyard burning. The Northern Sonoma District strongly 7 supports staff proposal to withdraw residential burning from 8 these guidelines. 9 In addition, ARB offered to provide a fundamental 10 environmental analysis which local districts can build on 11 when evaluating the impacts of revising burn rules. We 12 greatly appreciate this assistance. 13 Because of these agreements, the new program will 14 be more efficient and effective. 15 The Northern Sonoma District recognizes and 16 supports the need for effective smoke management. At the 17 same time we are also mindful of the resource constraints 18 that affect all of us, but especially rural areas which will 19 be hardest hit by this proposal and it is to this issue that 20 I wish to speak now. 21 Based on a CAPCOA survey of local air districts, 22 there are currently no smoke management programs that are 23 fully funded by fees. None. In fact, most local districts 24 have been unable to recover any fees for existing smoke 25 management efforts. Current efforts have been funded in a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 102 1 variety of ways, but mostly with subvention funds received 2 through ARB. Unfortunately, those funds have not been 3 increased in over 20 years. 4 We recognize that local districts have the 5 authority to raise fees. Many districts will undertake to 6 do so in the coming year and we will need complete and 7 active support from ARB and its sister agencies. As with 8 taxes, the authority to raise fees is very different from 9 the ability to raise them. 10 One thing is certain, however, we will not be able 11 to fully fund smoke management efforts envisioned by this 12 proposal through local fees alone. 13 There are several ways ARB can help address this 14 funding shortfall. 15 First, ARB can work to provide direct funding for 16 certain program costs, especially fixed hardware costs. 17 ARB should also ensure that there are adequate 18 resources within its own budget to fully fund all efforts 19 necessary for ARB to support local smoke management efforts, 20 including enhanced meteorology, data management and program 21 review. 22 Second, as outlined in the staff report, ARB can 23 facilitate in-kind support from burners, but in-kind support 24 alone will not be sufficient. There are a number of smoke 25 management activities that can only be done by air PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 103 1 districts. 2 ARB can, however, work with sister agencies to 3 establish adequate funding support for district activities 4 associated with burns done by state agencies and can also 5 work with districts to establish similar agreements with 6 federal burners. 7 Third, in reviewing local plans to implement these 8 guidelines, ARB should be mindful of the need to reduce 9 administrative costs and be open to alternative approaches 10 designed to meet local needs. 11 Different areas will need different degrees of 12 management to achieve the overall program objectives. 13 Local districts will be better able to manage 14 costs if ARB provides real flexibility in the design and 15 implementation of individual smoke management programs. It 16 is critical that districts not be required to include 17 program elements that increase administrative costs without 18 yielding a corresponding air quality benefit. 19 Fourth, significant air quality benefits could 20 result from increasing the use of alternatives to burning 21 and this would be done without increasing district costs. 22 We recognize there are costs to burners, but ARB can work to 23 increase opportunities and incentives to use nonburn 24 alternatives and thereby reduce those costs. 25 Finally, in the North Coast Air Basin and possibly PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 104 1 in other areas, there is a real need for better meteorology 2 data to support ARB forecasts and local decisions on 3 individual burns. Without this data, even substantial 4 changes in the structure of our smoke management program 5 will not improve burn outcomes at all. 6 We ask ARB to continue to work with us to provide 7 sufficient meteorology information for smoke management in 8 the North Coast Air Basin. 9 It has been suggested that core elements of the 10 proposed guidelines could be implemented with only minor 11 cost increases. That may be true. 12 But there is a vast difference between the 13 implementation of such a bare-bones program and the program 14 that will yield benefits outlined by the ARB staff report. 15 The bare-bones program does not include the 16 detailed review, the intricate coordination and the broad 17 consideration of ecosystem health, availability and use of 18 alternatives, timing or the balancing of business needs 19 ecology and public safety. 20 More importantly, the bare-bones program will not 21 be as effective or responsive as the burners and the public 22 expect it to be. 23 I would also like to add to the written testimony 24 that I've given you. 25 CHAIRMAN LLOYD: You're well over five minutes. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 105 1 MS. LEE: One brief point. 2 Other districts have requested some certainty 3 attached to the flexibility ARB has promised and this is 4 reasonable. What districts are looking for is a concrete 5 understanding of the objectives they are being asked to 6 meet, the standards by which they will judged. 7 The foundation of our program is health-based 8 ambient air quality standards. Those are reasonable for 9 judging the efficacy and adequacy of a program. If the 10 standards are inadequate to protect public health, the 11 standards themselves should be changed, but any 12 accommodation ARB makes in this proposal to use those 13 standards to judge programs would automatically extend to 14 any new standards adopted by ARB and this board, and would 15 use that yardstick then to measure the effectiveness of 16 programs. 17 And I recommend that that would be a reasonable 18 approach. 19 Thank you for the time you've given me and I hope 20 I've been clear in my comments. 21 CHAIRMAN LLOYD: Thank you very much. 22 Any questions or comments? 23 Thank you very much. 24 Mr. Baldwin, and then Mr. Bob Reynolds and then 25 the last speaker after that we will have Mr. Strickler, and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 106 1 then we're going to take a ten-minute break for the court 2 reporter. 3 Nice to see you mentioned positively in the video 4 there, great cooperation. 5 MR. BALDWIN: I was a little surprised to see 6 that, as you'll see in a moment, from my testimony. 7 Good morning, Chairman Lloyd, board members. My 8 name is Dick Baldwin. I'm the Ventura County air pollution 9 control officer. 10 I'm here to sort of support the proposed changes 11 to title 17. 12 CHAIRMAN LLOYD: This is an outlier from CAPCOA? 13 MR. BALDWIN: Right. 14 I want to explain why I can sort of support the 15 changes. The sort of is constrained by two concerns, one 16 minor and one major. 17 We've looked carefully at the proposed changes to 18 title 17 and concluded that we only need to add one element 19 to our existing program to meet the new rule. That element 20 is mapping the projected plume from a prescribed fire. 21 I have met with our fire district, the Farm 22 Bureau, fire district, Terry Raley, who you saw up there, 23 and Farm Bureau and the Cattlemen's Association, and we all 24 agree that this is a good element to add to our existing 25 prescribed fire program. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 107 1 After adding that element, we will only need to 2 codify in rule form the regulatory requirements you're 3 mandating that we currently meet and we will need to put 4 into writing our smoke management program that already meets 5 virtually everything your staff is proposing. These are 6 good things to do and my staff and I are ready to go to work 7 and do the job. 8 Also want to compliment the staff on the marginal 9 burn days. We think that's going to be an excellent tool 10 for us in Ventura County. 11 Now let me explain my concerns. 12 The minor concern I have is the apparent lack of 13 legislation, which I've discussed with your staff, to allow 14 ARB to delegate to those districts that have demonstrated 15 the capability to make burn day decisions, the authority to 16 make their own burn day decisions. 17 Ventura has an excellent meteorological program 18 that includes burn day forecasting. We forecast in areas 19 far smaller than ARB can do for this and this micro 20 forecasting allows us to regulate open burning with little 21 or no downwind problems. In fact our forecasting is so good 22 that the fire district pays my meteorologist to work with 23 the fire boss on all major fires in Ventura County. My 24 staff will stay on the fire lines for 24 hours until the 25 fire is contained and reason we are used is to help the fire PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 108 1 boss determine the best way to attack the fire and help them 2 keep the firefighters safe in case the wind changes. 3 Therefore, I'm asking your board to introduce 4 legislation or at least support legislation that will allow 5 your staff to delegate the burn day decision authority to 6 any local district that can demonstrate the ability to do 7 the job right. 8 And I believe this delegation should also give ARB 9 oversight authority so you can take away that delegation 10 when we fail to do the job right. 11 Now I want to focus on my major concern. 12 My major concern is the lack of financial support 13 from the state to fund this program. My board and I believe 14 the state has an obligation to financially support it. 15 Agriculture is big business in California, a business that 16 the state supports in many ways. State-supported programs 17 help farmers run their agricultural waste and keeps our 18 farmers competitive with other states. 19 However, if the state does not fund this program, 20 then we must charge fees to create and operate the programs, 21 and you've heard that before. These fees will reduce 22 California's competitiveness with other states. 23 Prescribed fires are extremely important to 24 California. Thanks to a Smokey the Bear mentality that's 25 been going on for quite a while with all fires, we now have PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 109 1 woodlands and chaparral areas with fuels that are nearly 100 2 years old in some areas, and this creates a huge fire 3 hazard and chokes out wildlife. 4 Prescribed fires are needed and wildfires are 5 needed to help wildlife. 6 Now, I've never met Director Tuttle, and I just 7 wrote this late last night. Keep that in mind. 8 Just a few months ago we experienced what we call 9 the ranch fire. This accidental fire was set by teen-agers 10 using illegal fireworks in an illegal way. A few years ago 11 we conducted a large prescribed fire that you saw in the 12 same area of the county. That prescribed fire is directly 13 responsible for saving over 80 structures downwind of the 14 ranch fire. It quite possibly even saved lives of some of 15 the people who live in those structures. 16 The prescribed fire, as you heard, cost around $40 17 an acre to burn, and the wildfire costs about $1700 an acre 18 to put out. So the math is simple. Structures were saved, 19 lives were saved and money was saved, all to the benefit of 20 the Ventura County and the State of California. 21 And then there is a health problem, the health 22 protection component of this program. The driving force for 23 changes to title 17 seems to be minimization of PM-2.5 from 24 these fires and improvement in regional haze. 25 All Californians benefits from cleaner, healthier PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 110 1 air, so why shouldn't they help us to achieve those benefits 2 for them? 3 So in conclusion, I'm going to strongly urge you 4 to find the funding to support the agricultural and 5 prescribed fire programs in California. After all, this 6 program is in the best interest of all Californians, not 7 just a few. 8 And with those two caveats, we support the 9 proposed changes to title 17. 10 I want to thank the ARB staff for giving us more 11 time to work on this and they solved all my problems except 12 those two. 13 CHAIRMAN LLOYD: Thank you very much, Dick. 14 Questions from the board? 15 Thank you very much. 16 Mr. Bob Reynolds and then Mr. Howard Strickler and 17 then we'll take the break. You're switching? You're Howard 18 Strickler or Bob Reynolds? 19 MS. TALLEY: Dr. Lloyd and honorable members of 20 the board, I am not Bob Reynolds. However, I am Louise 21 Talley and we wanted to switch so that Bob Reynolds could 22 summarize the Lake County program and what we need. 23 I am a recently retired board of supervisors for 24 Lake County and have been very fortunate to be appointed to 25 the North Coast Provincial Advisory Committee with the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 111 1 Forest Service. I've served with them for many years. And 2 burning, prescribed fires and so on, have been a major 3 effort over those years. 4 I've worked with the North Coast Lake Basin 5 Coordinating Council for several years and was chair of 6 that. 7 So I have quite a bit of background in air 8 quality. Perhaps mainly because, as a child, I was an 9 asthmatic, so air quality means a great deal to me. 10 I want to mainly tell you -- you have a letter 11 before you from me, so I'm not going to read that letter, 12 but just kind of summarize some of the information. 13 I've worked with Bob Reynolds, our APC director, 14 through many programs over about 15 years, and it has been a 15 real pleasure to work with him. He has done some great 16 things for Lake County. 17 Our first thing that we did was to work on a 18 program. We had hazardous materials trucks driving over our 19 Highway 20 directly over our body of water that was our 20 water supply, and he assisted us in redirecting the truck 21 traffic away from that water. 22 We then worked later on -- oh, I forgot to say, I 23 am representing the Lake County Resort and Restaurant 24 Association because of my tourism background. 25 And we worked on the small resort gas suppliers. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 112 1 There was a regulation coming down that would have actually 2 put all of those suppliers out of business. So we were able 3 to work with ARB and make it so that there was a gradual 4 time for them to take care of their problems there. 5 We have had a major education put forth on burning 6 of plastics, toxics, coated woods and so on, and that has 7 been very successful with our communities. 8 I was fortunate as working on the board of 9 supervisors to have opportunity to implement a burn barrel 10 ban ordinance, and that was a difficult thing to do, but 11 knowing the amount of toxic materials that are thrown in the 12 burn barrels, we realized that that really needed to be 13 halted. We were fortunate that all of the fire districts 14 worked with us on that ordinance. We all worked together. 15 It was a cooperative venture. 16 Then we also implemented a burn ban, total ban, 17 from June through November, and this has made a tremendous 18 difference in the air quality in Lake County. We did have 19 the exception of economically essential burns, but for the 20 most part it has made a tremendous difference for us. 21 We are now working towards residential leaf 22 burning ban, working on recycling programs to take the place 23 of the burning. 24 It's funny, I'm right now chair of the Area 25 Planning Program for Upper Lake and Nice and we have about PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 113 1 25 people serving on that committee. Earlier in the week we 2 asked them what is the major thing that you are concerned 3 with as far as burning is concerned, where do you have your 4 problems, have you experienced ag burning problems or is it 5 residential problems. And we had 23 hands go up on 6 residential leaf burning type problems, one hand on ag, just 7 to show you that we have things very well worked out in the 8 ag area, but the problem is with that residential area and 9 we're addressing that. 10 We have also worked very closely coordinating with 11 18 stakeholders implementing a burn, tule burn rule and that 12 has been extremely successful. We have a lot of tules in 13 Lake County and they have a criteria of every two years that 14 they can do this. 15 I want to say that our original problem in Lake 16 County was truly the geothermal impact and the amount of 17 toxics going out in the air was terrible. 18 Bob has worked so hard with all of those 19 industries and they have come out to where the cooperation 20 was just great and now we have this attainment asset, so 21 we're very fortunate. 22 CHAIRMAN LLOYD: How many more cards do you have? 23 MS. TALLEY: Not many. Almost there. 24 Anyway, it's been ten years since we've had the 25 attainment status and it's been through the leadership of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 114 1 the Lake County Air Quality District. 2 And community cooperation are the magic words that 3 have resulted in this unique-to-California status that we 4 have. 5 The proposed smoke management guidelines requiring 6 permit authorizations for all ag burning will be perceived 7 as intrusive government intervention within Lake County. 8 We have cooperative intervention there. 9 I had a call from a woman in Middletown who has a 10 small ag area and she said, you know, I'm not going to be 11 able to handle this permitting in advance, because I need 12 two people. I'm a single woman and I have to be able to 13 coordinate everything and with all the things required from 14 permitting she didn't feel she could do it and I told her I 15 would relay that to you. 16 The tourism industry, prescribed burns are a 17 problem and I think that what you have here in this 80160(j) 18 amendment for requiring a land manager, his or her designee 19 conducting a prescribed burn to ensure that all conditions 20 and requirements stated in the smoke management plan are met 21 in the day of the burn event and prior to ignition, we have 22 had problems where CDF and Forest Service runs off with the 23 burn and that day it was not really effective, it wasn't 24 what it should have been, so we went ahead with it and it 25 got out. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 115 1 CHAIRMAN LLOYD: Thank you. 2 MS. TALLEY: I must ask you just to do as we have 3 asked before and add the amendment to 8014 B -- 4 CHAIRMAN LLOYD: You realize you've taken 5 Mr. Reynolds' time now? Is that the agreement? 6 MS. TALLEY: Somebody else will take a little less 7 time. Thank you. 8 CHAIRMAN LLOYD: Thank you. 9 I'm not sure who we've got next, whether we've got 10 Mr. Reynolds or Mr. Strickler, but we have just these two 11 prior to taking a break for the court reporter. 12 I really do ask, I'm being generous so far, but I 13 will cut people off after five minutes if we can't abide by 14 that. 15 MR. STRICKLER: No cards. 16 Mr. Chairman, members of the board, I know it's a 17 little confusing this morning with the last three speakers, 18 but I am Howard Strickler. I'm here representing the Lake 19 County Fire Chiefs' Association. 20 You've already heard from Lake County, you know 21 what our position is, but I want to address another issue. 22 In the agricultural allocation system, the impact 23 is going to go right to the bottom of the food chain where I 24 reside. I am the most local agency that's going to be 25 impacted. I'm going to be the intrusive government agency PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 116 1 that's going to be enforcing these new regulations on the 2 burner. 3 Anything that happens in Lake County when it deals 4 with burnings or permits, burning permits, everybody 5 perceives it's the fire district. We're the first one to 6 call, the first one to be visited, first one to get the 7 hammer if they don't like what's going on. 8 My concern is it's going to be a huge impact on 9 the rural districts. We've got fire districts in Lake 10 County that do not have staff people. I'm lucky I have 11 staff, but whether I can absorb the cost of this program and 12 its impact on me, I don't know yet. I'm concerned about 13 that. 14 I'm concerned about the impact on the weekends and 15 the after hours and holidays when there's no staff available 16 at the Air Resources office. 17 Those are my concerns. 18 Mr. Reynolds has requested if I had any extra time 19 he got it, so if you watched closely, give him an extra 20 minute or two. 21 CHAIRMAN LLOYD: Thank you. 22 I would ask staff, what does happen on weekends? 23 MR. McNERNY: Of course we are staffed on the 24 weekends and holidays. We have staff here everyday of the 25 year, except one day. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 117 1 CHAIRMAN LLOYD: The forecast will come out then? 2 MR. McNERNY: Yes. 3 CHAIRMAN LLOYD: Good morning, Mr. Reynolds. 4 MR. REYNOLDS: Good morning. Thank you very much, 5 Dr. Lloyd and the rest of you board members. We appreciate 6 the courtesy. 7 I want to make it short and I'll tell you who I 8 am. I've been the APCO in Lake County 20 years and I worked 9 for the state for seven years and I've worked on standards 10 and I've worked with most of these people, have a high 11 opinion of them. 12 Sorry to be here to disagree with them, but they 13 don't know what's happening here with the rule in 80145(b). 14 They haven't defined what's going to happen. We have to 15 worry about it. We have a committee that went through and 16 basically the English interpretation of that says if you 17 don't have small amounts, you don't have -- you can't even 18 contribute to an air quality problem in order to have an 19 exemption work for you. And it's based on historic data. 20 What I've asked the staff to do many times, and I 21 know they're looking at me as though I haven't asked this, 22 but it's attached to Supervisor Lewis' testimony, it's been 23 in writing, is to quantify, define or list the districts 24 that get this exemption. 25 In the absence of them doing that, we have to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 118 1 assume we don't get it. We have no other choice. 2 And I need to emphasize, we are not trying to get 3 out of anything with prescription burning. We've burnt 4 10,000 acres in 1990. I'm not worried about doubling our 5 burning next year. We can handle it. I'm not here to whine 6 about that. 7 I'm here to whine about one thing. I don't like 8 whining. Okay. 9 I'm here to whine about the fact that you might 10 force us in a community where most of the strongest parts of 11 our environmental program is ran by farmers. Good people, 12 family farmers, some of them with as little as 40 acres, 13 they're generational farmers. They're real farmers. 14 If I start having them call me every day every 15 time before they light every fire and have to decide whether 16 they can do it or not, they're just as soon be in Sacramento 17 or some other place that needs that. We don't need it. 18 So what we tried to do, and we've done it 19 repeatedly, we try to write an exemption that would allow 20 us, based on our record, and I think most of the people in 21 the ARB, certainly the people in metrology know, we call 22 them on the weekends, we do work weekends when it's 23 important. We do control the important fires. We have all 24 kinds of rules. And we've ran through all kinds of agencies 25 because, frankly, in Lake County, Mr. Kenny said once when PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 119 1 he was a key note speaker at our clean air party, which we 2 have every year, perhaps Dr. Lloyd can come and explain this 3 rule to us this year. 4 Basically in Lake County you have -- 5 CHAIRMAN LLOYD: I think I have a commitment 6 elsewhere. 7 BOARD MEMBER C.H. FRIEDMAN: You'll have to do it 8 on a daily basis. 9 MR. REYNOLDS: Yeah, come on a Sunday. 10 Basically he said the public expects clean air, 11 and you've made it because of that. They will not accept 12 anything else. I'm going to tell you that in Lake County if 13 one farmer makes a mistake, the other farmer does talk to 14 him. 15 And there's plenty of people I can sit here and 16 tell you the names of every one of the CDF that do our 17 prescribed burns. We've been doing it for years. 18 Mr. Kenny will also know we write nasty letters to 19 ARB, don't think they do a good job on prescribed burning. 20 I put it in writing and we go that far. We're not going to 21 have that situation happen in Lake County. 22 Now I just want to emphasize one other thing real 23 quick, and that's the standards that you guys talk about, 24 sometimes get thrown all over the place. We're talking 25 about the state standards that are one-half of the federal PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 120 1 standards. Those federal standards doesn't protect anybody. 2 We're not going to propose it. The state standard is pretty 3 stringent though. 4 But we'd be quite -- and I told Mr. Kenny, I said 5 it today, we'll support a more strict PM-10 standard. We 6 don't think it's that good. We're worried about visibility 7 in Lake County. We're one of the few places that measure 8 visibility and report it and have advocated with ARB that we 9 want to be attainment for it. I think we're the only ones 10 that ever even applied for it. 11 As you'll notice the little picture there that's 12 in your testimony too, Lake County is the only green county. 13 And I think the colors are so appropriate. I don't know who 14 chose them, but I congratulate them. 15 Truth of the matter is we really want to be that 16 way. We claim Clear Lake is clear because of the clear air 17 and we're proud of it. 18 And we won't go off running someplace if you let 19 us have this exemption, an exemption that was included in my 20 testimony and everyone else's testimony is exactly the same 21 thing. We got there after we had a public hearing in Lake 22 County. We did invite Mr. Fletcher to attend it. We think 23 if they would have came they would given it to us, we 24 wouldn't be opposing this, we wouldn't be in front of you 25 today. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 121 1 So I just want to be real serious about it, this 2 is a serious matter with us. We really do appreciate all 3 the support from many reasons from ARB over the years, and 4 they deserve compliment for being very competent and we just 5 ask you to turn this around, give us this exemption. And 6 one of the biggest reasons is you're going to destroy the 7 cooperative community spirit that a lot of the speakers have 8 talked about. I mean we have it and you guys can destroy it 9 just by being pinhead bureaucrats if you choose. 10 Thank you. 11 CHAIRMAN LLOYD: Thank you. Any questions from 12 the board? 13 BOARD MEMBER RIORDAN: Mr. Chairman, back when you 14 were clarifying something following the supervisor's 15 presentation, you talked about 20,000 acres that were being 16 burned and then the discussion came up, well, are all those 17 20,000 acres being burned at one time or is that over a 18 period of time, and it wasn't very clear to the board and 19 maybe you'd like to tell us. 20 MR. REYNOLDS: Yes, I would. I would like to 21 explain that there's a lot of ways of approaching a problem. 22 In our rules there's a thing called a cap. That means the 23 most you can burn in any given day. In our particular 24 district we broke it down to subdrainage basins. I think 25 it's 4,000 for the Clear Lake basin in any given day, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 122 1 meaning prescribed burn or anything else. Putah I think 2 it's two, Scott's Creek it may be one, one and a half. 3 Those are really agricultural directive, and they're not 4 directed at prescribed burning. 5 Now the reason that I and everyone else is using 6 the annual small quantities is because that's what your 7 staff defined it as, they put it in the report. They used 8 the Bay Area, they demonstrated the Bay Area is going to get 9 out of doing the authorization. They're out. Lake County 10 is not out. I asked them just to make a table in there and 11 list Lake County as one of the counties out too and I'd be 12 real happy. 13 You didn't have to put it in the rule, just list 14 it in the staff report. It's supposed to be based on 15 historic data, after all. So the data is already there. 16 And you'll see in my testimony that I've attached 17 the amount of complaints we have. We got four complaints a 18 year in this project. Probably if you really had to go out 19 and do it with agriculture, it probably cost 40,000 bucks a 20 year. 21 I'm willing to get any reasonable cap out of them 22 as a compromise. Existing one I think is reasonable. It's 23 high. On a good day we could burn much. We don't need that 24 much. 25 And I need to emphasize one other thing that's a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 123 1 real problem with our district. We don't allow but ten 2 fires between June and November, so come November we got to 3 make up, we've got to work with these people. And we do a 4 lot of burning during storms, frankly, because a lot of our 5 wastes are in fact wood products, and a lot of people are 6 tending to chip and stuff because they can't burn during the 7 summer and we've got a lot of people behaving a lot better 8 because at least part of the year they can't burn. 9 So I think it's a superior program to what they're 10 trying to do. And I want to emphasize, authorization 11 programs is fine for prescribed burning and we actually use 12 it for our rice burning, but we do have fire. As you notice 13 in the rule, we need to fire that rice up, get it up before 14 the winds pick up and blow it over, and if you back fire it 15 just lays on the ground no matter what the conditions are. 16 It may explain Mr. Odle's comment. 17 I would still accept some other criteria if, you 18 know, you want to do it. If there's some other criteria 19 that day I'd accept that, but we'd like to be out of 20 agricultural authorization program. We made it real clear. 21 That's all we're asking for. But we really are serious 22 about that and we really do need it. 23 Thank you. 24 CHAIRMAN LLOYD: Professor Friedman. 25 BOARD MEMBER C.H. FRIEDMAN: Question for staff, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 124 1 if I may. 2 Is there some reason why Lake County in the 3 staff's view has not demonstrated or probably can't 4 demonstrate, based on historical data, that the small 5 amounts of burning that they have engaged in and appear to 6 plan to continue to engage in would not cause or contribute 7 to air quality problems? Obviously, if they greatly 8 increase this or -- this is all going to be measured after 9 the fact, apparently, but to the extent that the Bay Area is 10 exempted, if that's true. 11 MR. KENNY: They're not. 12 BOARD MEMBER C.H. FRIEDMAN: That's not the case. 13 MR. REYNOLDS: They're used as an example in the 14 report, right, Mike? 15 BOARD MEMBER C.H. FRIEDMAN: I can understand why 16 they want some assurance that what they're doing and have 17 been doing would qualify under this, or if it wouldn't, why 18 not, and what can be done. They like to know where they 19 are. 20 Is there anything the staff can -- 21 MR. McNERNY: The Bay Area is used -- 22 BOARD MEMBER C.H. FRIEDMAN: It's a record 23 overall, obviously. 24 MR. McNERNY: The Bay Area is used as an example 25 in our report. We had discussions with Bay Area districts. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 125 1 The exemption criteria is hard to define for a district, 2 because a lot depends on what's the location of the burning, 3 what's the location of population centers, versus that 4 burning, primary wind directions at the times you want to 5 burn. You can burn a very small amount of material and 6 cause complaints or you can burn a substantial amount if 7 it's an isolated location and have no problems, so it 8 depends on where things are located. 9 BOARD MEMBER C.H. FRIEDMAN: How is a district to 10 know whether they have to submit a burn authorization system 11 or develop one, or adopt one under this language? 12 MR. McNERNY: When we drafted that language -- 13 BOARD MEMBER C.H. FRIEDMAN: Or whether they're 14 exempt. 15 MR. McNERNY: When we drafted that language we 16 were thinking let's look, give a district the opportunity to 17 show, based on past information, past data, what the 18 experience has been with the amount of material they burn -- 19 BOARD MEMBER C.H. FRIEDMAN: The Lake County has 20 been sharing their experience, or offered to. I mean, I'm 21 wondering why, since apparently they are very very concerned 22 about this, I'm sure other districts are as well, but 23 apparently they feel they're on the threshold or cusp of 24 qualifying on some objective measure. Why is it that -- how 25 long would they have to wait if we adopt this to find out PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 126 1 where they stand? 2 MR. McNERNY: Well, first the burn authorization 3 system would be required July 1st of 2001. If they want -- 4 BOARD MEMBER C.H. FRIEDMAN: Between now and then 5 they'd be able to come to you -- 6 MR. McNERNY: Yeah. Essentially it would be a 7 demonstration that the district would make saying we have -- 8 we burn this amount of material that's located isolated from 9 population centers, the air quality data is quite good that 10 they have and they do a good job with their burning. 11 But on the other hand, there is another 12 possibility. The burn authorization system requirement is 13 specified that the burn authorization system should be 14 tailored to meet the needs of the program. If you have a 15 program that causes very little concerns from smoke impacts 16 or public health concerns, you only need a minimal system. 17 Mr. Reynolds has mentioned in some drainages or 18 areas he burns maybe a thousand acres a day or 2,000 limits 19 in other areas, he has a way to know how much is burned so 20 he knows whether or not those limits are exceeded. That 21 could be adequate to make the regulation, even if you're not 22 exempted. 23 MR. KENNY: If I might interject just a little 24 bit, I think we're at a point where essentially we have a 25 provision in the regulation that we think gives Mr. Reynolds PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 127 1 the flexibility to try to make a demonstration to us. At 2 this point we haven't seen a demonstration. What we've 3 heard instead is that because they're in attainment for the 4 PM-10 standard at the state level, that should be a basis 5 for a demonstration. But this is not a PM-10 attainment 6 issue. This is more a smoke impact issue. 7 So if Mr. Reynolds can simply provide a 8 demonstration that there are not smoke impacts from his 9 program in his county, then we have the ability basically to 10 provide him with the kinds of -- 11 BOARD MEMBER C.H. FRIEDMAN: What do you mean by 12 smoke impacts? I mean, obviously people standing next to 13 wherever there's a burn are going to have smoke impacts. 14 MR. KENNY: What we need to see basically is 15 historically what's been happening with regard to the burns 16 that he has been basically allowing to occur, what kind of 17 complaints he's getting in response to those burns and what 18 kind of impacts have been happening from those burns. 19 If that kind of historical data shows in fact that 20 there's not a problem over there, then he has the ability to 21 give relief under this particular provision that we have in 22 here that allows for the small amount provisions. 23 BOARD MEMBER C.H. FRIEDMAN: This says contribute 24 to air quality problems. Do you mean by that, not 25 inconsequential or insignificant, but you mean significant PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 128 1 air quality problems? You haven't quantified it, you don't 2 want to specify it or tie it to the PM-10 standard? 3 I can understand why there's -- I mean, in terms 4 of discretion, administrative discretion on the part of the 5 staff is being retained here, there ought to be some 6 guidelines or some indication that at least anecdotally if 7 not some understanding in the record. 8 MR. KENNY: The difficulty here to a great extent 9 is when you're looking at smoke impacts it is difficult 10 thing to basically say the following is a smoke impact and 11 the following is not. We can have situations where you have 12 one complaint and we have to make a subjective evaluation -- 13 BOARD MEMBER C.H. FRIEDMAN: You have a community 14 versus an individual, somebody standing near the smoke is 15 going -- 16 MR. KENNY: Somebody standing near the smoke is 17 not going to like it and so that if they're standing by the 18 smoke and they're complaining about it, that's obviously not 19 a reasonable complaint, but somebody who is living downwind 20 from the smoke and when the burn occurs on a bad day in 21 which the smoke -- 22 BOARD MEMBER C.H. FRIEDMAN: You're saying cause 23 or contribute unreasonably to air quality problems in the 24 community or something. I can understand why they want to 25 know where they are and if we can't tell them today, there PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 129 1 ought to at least be a rule that gives some more objective 2 and less subjective basis. 3 MR. KENNY: We can try to essentially provide some 4 additional criteria. 5 BOARD MEMBER C.H. FRIEDMAN: Otherwise it's 6 entirely up to the good faith and good will and the mood and 7 disposition of that day. 8 MR. KENNY: Not necessarily. What we're trying to 9 do is make sure that when burns occur, in fact the burns are 10 lit on a day in which essentially the atmosphere can absorb 11 that smoke and the people who are living downwind of that 12 particular burn are not being impacted by it. And that 13 really is going to become more of a metrological 14 determination as to what happens and whether or not the 15 burns are being lit off essentially consistent with that 16 meteorology so that the smoke impacts are really minimized. 17 BOARD MEMBER C.H. FRIEDMAN: This is only 18 historical, the next day they can, if they're exempt because 19 of the past, then they can lose that in a day or two. 20 MR. KENNY: That's true, they could. But what 21 we've been trying to do is recognize if there are at least 22 good programs around the state and to the extent that there 23 is some good programs around the state, we don't want to put 24 unnecessary burdens on those programs, if they're working. 25 But at the same time we do want to ensure that in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 130 1 fact the smoke impacts are being minimized. 2 And so what we were looking for with this 3 particular provision was sort of was a demonstration from 4 districts that actually think that they have got a good 5 program in place, which is minimizing smoke impacts and that 6 would give us the ability to sort of evaluate that and see 7 whether or not smoke impacts actually are occurring or 8 basically not occurring consistent with the program. 9 BOARD MEMBER C.H. FRIEDMAN: Would you be willing 10 to speculate as to whether there is any such district 11 presently that you're familiar with at all, that you think 12 has an excellent chance or shot at satisfying this very 13 illusory, very elastic, flexible kind of standard? 14 MR. KENNY: I hate to say this, this is one of 15 those things that Justice Stewart talked about a long time 16 ago, you know it when you see it. 17 BOARD MEMBER C.H. FRIEDMAN: That was pornography. 18 You feel any better, Mr. Reynolds? 19 CHAIRMAN LLOYD: Was that Professor Friedman's 20 class? 21 I think Mr. Reynolds had a comment and then 22 Ms. D'Adamo. 23 BOARD MEMBER C.H. FRIEDMAN: Thank you. 24 MR. REYNOLDS: I want to thank Dr. Friedman, 25 because he's asking the same questions I've been asking for PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 131 1 some time, and I've been asking that in writing. Okay. And 2 the truth of the matter is McNerny has no idea what we do in 3 our district. Art, Eric, Lindsay, those guys, we call them, 4 they know we're paying attention. We don't burn a thousand 5 acres because that's the limit in the rule. We don't even 6 come close. That was the very point. We burn 20,000 acres. 7 I've been giving you staff reports on that for ten years, 8 never comment back. List every crop, every amount we burn, 9 give it to you, make sure I serve it on you, Mike, and you 10 know that. 11 Because that's how we got out of this last time 12 you tried to force it upon us, because last time the reason 13 we had to do this was because emissions inventory just had 14 to have this information so we go out and spend $30,000 to 15 make a community angry. 16 We don't need it in Lake County again. And we'll 17 do anything short of agreeing that we do. 18 I don't think I should have to prove to you our 19 program, Mike. I've written you much more letters about bad 20 burning practices at ARB than you have me, including that 21 burn barrel, including Mr. Fletcher, when he was in the 22 toxics program. 23 You need to get to these programs and not spend 24 time with us arguing with us, sending us out doing things we 25 don't need to do. That's about cost. You won't have people PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 132 1 up here whining about needing permit fees if we don't have 2 to do things that don't need to be done. 3 And I don't know how more explicit to put it. I'm 4 sorry that I have disagree with your staff so vehemently. 5 Dr. Friedman, you're watching them, they are not 6 responding to these questions. 7 And, gosh, how can we go forward with there's 8 probably 400 farmers I'm going to have to talk to and say I 9 don't know what they want really, but we'll find out. 10 They need to be clear. One of the things that I 11 put in my testimony, and so did Supervisor Lewis, we said 12 you need to clear this up before you go forward. 13 Mike, I think you could go ahead and say we have 14 enough program that maybe we could be listed along with the 15 Bay Area. If I read that staff report and I was from the 16 Bay Area, and there's Bay Area staff here, why don't you 17 call them up here and see if they think they're exempt or 18 not, because I think they think they're exempt from this 19 authorization program. I don't think they intend to do it. 20 They are the only ones. 21 And that's how we got this annual thing instead of 22 a daily thing, because they got what they wanted, but Lake 23 County apparently can't get what it wants, which is an 24 exemption. 25 CHAIRMAN LLOYD: Ms. D'Adamo. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 133 1 BOARD MEMBER D'ADAMO: Yes. First of all, I'd 2 like to thank Professor Friedman for his comments. 3 As I have been listening to the testimony of the 4 various witnesses, I keep going back to this proposed 5 regulation, and it's unclear to me and I think we just need 6 more clarity. I think we need some definitions in here as 7 to what's small amounts are, as to what air quality problems 8 means along the lines of what Professor Friedman was laying 9 out, significant, unreasonable, perhaps a list of criteria 10 so that not just Lake County, but there's got to be other 11 regions of the state as well that could possibly fall into 12 this, and I think we need a little more information so as to 13 give some of these other regions information as to whether 14 or not they would want to attempt to make this 15 determination. 16 With regard to the Bay Area, I don't see that they 17 are exempt. I'm just reading in here that they're listed as 18 an example under the staff report. Perhaps another example 19 along the lines of what occurs in Lake County, they've been 20 complimented throughout today for the tremendous efforts 21 that they've made, perhaps some additional information in 22 this staff report along those lines would also be helpful. 23 CHAIRMAN LLOYD: Thank you. 24 BOARD MEMBER C.H. FRIEDMAN: I just have one 25 additional thought. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 134 1 I understand that this is an exemption and that 2 the staff is trying to provide flexibility for districts 3 that aren't causing problems with their burn. 4 But I can also appreciate, as I said, the 5 difficulty of the district in knowing whether we think we 6 can make the case because the criteria are very illusive 7 here, it seems to me. 8 We can do a number of things. We could ask the 9 staff to try and be more specific, but they've already been 10 asked that, and apparently they want experience to teach. I 11 think they want to live with this and see how it works and 12 look at each district and then come to some conclusions. 13 Now that's leaving a lot of discretion to the 14 staff under this kind of rule. 15 On the other hand, I would propose a lot of 16 confidence and I think a little faith in the staff in 17 applying this reasonably and fairly, at least hopefully, 18 giving the districts the right to try and come under this 19 and then maybe we can revisit this based on what they do 20 evolve when they begin to grant or waive the burn 21 authorization system in a given case. I mean, it will 22 evolve. It certainly will evolve if anybody seeks this 23 exemption or seeks to come under it. 24 CHAIRMAN LLOYD: It might be helpful. 25 BOARD MEMBER C.H. FRIEDMAN: From what I've heard, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 135 1 again, I don't know facts, but based on the representations 2 it would seem to me that Lake County doesn't have air 3 quality problems. If they do, presumably you can agree on 4 what that is, hopefully, specific problems or concerns and 5 satisfy it. 6 MR. KENNY: I think we're more than willing to try 7 to do that. I think the only comment I would make is that 8 we would agree that Lake County does not have air quality 9 problems. I think as a staff we fully recognize and we 10 fully commend Lake County for what they've done in terms of 11 all the standards. 12 What we've been trying to do here, though, is make 13 sure that smoke impacts are not occurring from localized 14 burns. 15 The one thing we don't know is essentially what is 16 happening, for example, on a more specific basis in Lake 17 County. Mr. Reynolds himself said that we don't know what's 18 happening in Lake County, and that's the kind of thing that 19 we need to know in order to basically have that 20 demonstration -- 21 BOARD MEMBER C.H. FRIEDMAN: Is that a very costly 22 thing to generate the information, is that something you'll 23 send staff out to check? 24 MR. KENNY: We're happy to do that. We're happy 25 to work with Mr. Reynolds. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 136 1 BOARD MEMBER C.H. FRIEDMAN: Daily amounts of 2 burning, how expensive is this going to be to monitor this? 3 MR. REYNOLDS: Once the program is in, why take it 4 out? I'm contending it's too expensive to put in and start. 5 And I will say we do know what's going on in Lake 6 County, but not exactly. There is a complaint list that's 7 in my testimony, Mike, and I contend that 85 percent of our 8 problem in burning is residential. It's not agricultural 9 burning. We know that. We're trying to do better. 10 CHAIRMAN LLOYD: I think what might be helpful 11 here on this particular issue to -- give staff some time to 12 evaluate all these comments here and by the time of the end 13 of the testimony ask them to come back to the board to see 14 what type of approach they might use. 15 BOARD MEMBER C.H. FRIEDMAN: I personally favor 16 the staff's inclusion of an exemption along these lines and 17 I think the concern is specificity, so that those who are 18 subject to it or who wish to avail themselves of it can know 19 what they have to do to comply, what their local rules are, 20 requirements and monitoring has to be and the kind of 21 information they need to provide. 22 Since you don't know, and I understand you don't 23 know really quite what it is yet yourself, I do think that 24 we ought to make sure that we can revise this and encourage 25 Lake County and others who may feel that they can qualify to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 137 1 work with staff to get that. They've got a year or so to do 2 it. 3 MR. KENNY: If I can add one thing, which I think 4 may be of some value, which is on page 16 of the staff 5 report we do provide an estimated acres burned listing for 6 the different districts around the state. And as you look 7 at that particular listing, Lake County burns approximately 8 21,000 acres per year. That is not the lowest amount of 9 acreage which is burned in this state by any particular 10 district. 11 And so what we're really trying to do again is not 12 look at this from a PM-10 or PM-2.5 standpoint, but truly 13 from a smoke impact standpoint and make sure in fact those 14 individuals are not being impacted. 15 We don't know with any great degree of specificity 16 at this point in time exactly how all these programs are 17 working around the state, but at the same time, to the 18 extent that the programs are working, we want to recognize 19 that and we don't want to put redundant and unnecessary 20 burdens on those programs, which is why we provided that 21 particular provision. 22 BOARD MEMBER C.H. FRIEDMAN: Is it possible 23 literally for us to, assuming we otherwise approve these 24 regulations, to make that subject to further review, 25 revisited? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 138 1 MS. KRINSK: Yes. We can hear your 2 recommendations. We can hear the board's adopted or 3 approved advice with regard to this issue. And before we 4 send out our 15-day notice with specific language that 5 you're going to be considering today for approval, we can 6 have specific criteria in that part of the regulation, if 7 that is what the board wishes. 8 BOARD MEMBER C.H. FRIEDMAN: Assuming that staff 9 is not able in the next few days or weeks to do that, they 10 haven't been able to thus far, and for reasons that I think 11 emerged, I'm talking about taking a look at this in six 12 months or a year before the plans are required to be 13 submitted to see if we can further clarify by amendment what 14 the standards are for this waiver, for this exemption. 15 I mean if you can do it under the usual process 16 where it's 15-day comment, that would be great. 17 MR. KENNY: I think one of the opportunities might 18 be to sit down essentially with Lake County once more and 19 try to figure out essentially what their demonstration would 20 be and to see whether or not they would qualify. 21 BOARD MEMBER C.H. FRIEDMAN: The next day or so? 22 I would encourage that. 23 MR. KENNY: I would think that's possible. 24 BOARD MEMBER C.H. FRIEDMAN: I would for one 25 greatly encourage that. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 139 1 MR. JENNE: Professor Friedman, under the normal 2 provisions of how the adoption process works, we would have 3 several months, at least, if we wanted to wait that long 4 before we issue the 15-day notice and there could be time 5 during that period to find out some more information. 6 BOARD MEMBER C.H. FRIEDMAN: Sounds like Mr. Kenny 7 is willing to move faster than I am. 8 MR. KENNY: I am. 9 CHAIRMAN LLOYD: Ms. D'Adamo, do you have anything 10 else? 11 BOARD MEMBER D'ADAMO: No. 12 CHAIRMAN LLOYD: Thank you very much. 13 MR. REYNOLDS: Thank you very much. Thank you for 14 letting us have a little democracy like we commonly have in 15 Lake County. It's nice to see. Thank you very much. 16 CHAIRMAN LLOYD: Thank you. 17 With that, we're going to take a 15-minute break. 18 Court reporter has been actually very patient here and I 19 promised 15 minutes, and I took an hour. 20 And after the break that's 15 minutes, so that's 21 at 1:00 by that clock at the back there. 22 We will start with Mr. Wayne Morgan, Mr. George 23 SOARES and Mr. Craig Ostergaard. 24 Thank you. 25 (Thereupon a short recess was taken.) PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 140 1 BOARD MEMBER C.H. FRIEDMAN: We'd like to resume 2 now if you would take your seats. 3 The next speaker is Wayne Morgan, North Coast 4 Unified Air Quality Management District. 5 Please go ahead, Mr. Morgan. 6 MR. MORGAN: My name is Michael Kenny, (sic) 7 (laughter) and I'm here to tell you that the packet that we 8 just gave you following the Lake County presentation has 9 been removed, and I'm about to give you the new proposal. 10 Some of the things that I heard in the last few 11 testimonies are somewhat bothersome, particularly when we 12 talk about smoke management and not using the air quality 13 standards necessarily as the standard for judgment of 14 successive programs. The PM-10 standard is maybe not the 15 measure that we use. Now we're going to utilize complaints 16 to determine success-failure programs. There's all kinds of 17 nonobjective questions that come into play. How many 18 complaints are going to be needed in order to say that a 19 program is successful or not successful? 20 It raises several questions. 21 And I think our primary standard has always been 22 to look to the air quality standards and to design and 23 develop programs to achieve those standards. 24 The other thing that was very bothersome and I 25 think makes some of the points that I wanted to make, and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 141 1 that is that we don't know, the comment was made we don't 2 know the programs and the success of the programs that are 3 existing in California. And that was in reference to Lake 4 County's program. 5 It's somewhat puzzling to have an agency to 6 development a statewide program, not realizing the existing 7 programs that are out there, and especially the programs 8 that are effective. 9 And that's bothersome. 10 And I think that points to one thing. I think the 11 packet that's before the board today with those kind of 12 comments is really premature. It should not be here. 13 I should introduce myself. I'm Wayne Morgan from 14 the North Coast Air Quality Management District. I've held 15 a position of APCO there for about 11 years. 16 Prior to that I was in Stanislaus County for about 17 15 years. And I spent two years in Northern Sierra Air 18 Quality District establishing the tri-county district 19 program at that time. 20 I have had extensive experience at setting up, 21 arranging, designing agricultural burning programs, as well 22 as prescribed burning programs that deal with forest 23 management, range improvement burns. 24 In my 28 years of air quality experience, I've 25 learned a few things, as I know that each of you have in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 142 1 your expertise and in your years of experience. 2 A simple principle that was taught to me a number 3 of years ago, and one that I have tried to live by, is it's 4 a real simple slogan, and that is approach determines 5 response. Approach determines response. 6 And what that really says is that the manner and 7 the attitudes that we have in approaching designing a 8 problem or designing a system to solve a problem is so 9 critical, because the response that happens as a result of 10 that is going to determine the success or the failure of 11 that approach. 12 And this principle can be applied in our jobs, 13 personal life, and any other setting where interpersonal 14 relationships are important. 15 The approach used by the ARB in developing the 16 smoke management guidelines before you today is one that has 17 resulted in one guideline for the entire state. This 18 approach failed to recognize and make allowances for 19 existing smoke management programs that work effectively. 20 We believe this approach to be unwise and one that 21 generates a response of mistrust and local opposition. 22 We also believe the approach taken by ARB and 23 development of the smoke management guideline is in conflict 24 with the legislative charge and authority expressed in 25 section 41856 and 41857 of the Health and Safety Code. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 143 1 This charge is to develop agricultural burning 2 guidelines for each air basin established by ARB, not one 3 flexible guideline for the entire state. 4 Even the bold print at the top of the guidelines 5 document, which reads proposed regulation order, is 6 misleading. It suggests that smoke management guidelines 7 are regulations. They are not. They're guidelines only. 8 The regulation and control of agricultural burning 9 occurs once an air district develops and adopts rules and 10 regulations as expressed sections 41863 of the Health and 11 Safety Code. And it reads each basinwide coordinating 12 council and district shall as part of the implementation 13 plan and programs prepared pursuant to chapter 2, commencing 14 with sections 41600, include a component for the regulation 15 and control of agricultural burning pursuant to guidelines 16 adopted by the state board therefore. 17 So the regulations occur after the local air 18 districts develop and adopt regulations that comply with the 19 guidelines that the Air Resources Board adopts. 20 The North Coast Air Quality Management District 21 board has recommended, as you heard from our board member 22 Stan Dixon, that ARB, this board, remand the package of 23 smoke management guidelines and redirect staff to develop 24 such guidelines which carry out the mandates of the Health 25 and Safety Code and tailor such guidelines to each air basin PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 144 1 as needed. This will allow the air quality status of each 2 air basin to be considered and determine the need for any 3 additional regulations. I'm aware that there are districts 4 which need the level of detail expressed in these guidelines 5 to properly manage smoke from prescribed burning and 6 likewise those which do not have the need. 7 Smoke management guidelines developed on an air 8 basin basis will apply the emphasis where it is needed and 9 comply with the mandates expressed in the Health and Safety 10 Code. 11 In addition, there's two other points that I'd 12 like to make, and I'll try to wrap those up very quickly. 13 And one is in the section suggested change in 14 section 80145(b) and it is exempting small amounts of 15 agricultural burning from authorization. 16 The section reads a burn authorization -- 17 BOARD MEMBER C.H. FRIEDMAN: You have, I'm sorry, 18 but you have about 30 seconds. 19 I'm going to strictly enforce the five-minute 20 rule. 21 MR. MORGAN: Very good. Thank you. 22 Following the last workshop, the Air Resources 23 Board added in excluding prescribed burning in that section, 24 and what we're suggesting is that that be deleted and 25 include prescribed burning and the logic is that small PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 145 1 amounts of agricultural waste can be burned without causing 2 or contributing to an air quality problem. So can small 3 amounts, as well as remotely located prescribed burning 4 projects. 5 BOARD MEMBER C.H. FRIEDMAN: You have a concluding 6 sentence? 7 MR. MORGAN: I do. 8 BOARD MEMBER C.H. FRIEDMAN: That was it? 9 MR. MORGAN: No. I have a concluding sentence if 10 I may. 11 BOARD MEMBER C.H. FRIEDMAN: Please. 12 MR. MORGAN: In conclusion, the proposed 13 guidelines and the envisioned daily authorization will 14 demand a great deal of additional resources in California to 15 implement, yet ARB is apparently providing no funding for 16 such resource needs. 17 The major smoke incidents that have occurred in 18 recent years has partly attributed -- was partly attributed 19 to a lack of resources at the local level. 20 And I'd like to leave this question and I will 21 conclude my presentation. 22 How are lack of resource problems resolved with 23 additional -- with addition of more regulations? 24 Any questions or comments? 25 BOARD MEMBER C.H. FRIEDMAN: Thank you, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 146 1 Mr. Morgan. 2 Any questions or comments? 3 BOARD MEMBER CALHOUN: Yes, Mr. Chairman. 4 I like to raise a question. He raised an issue 5 about whether or not these are regulations that we are being 6 asked to adopt or guidelines. So would staff care to 7 comment on that? 8 MR. JENNE: Mr. Calhoun, I think I can answer 9 that. 10 These are intended to be binding regulations and I 11 think the point that was trying to be made was that by the 12 use of the term guidelines that somehow means they're not 13 supposed to be binding. But it's pretty clear that they are 14 supposed to be binding, and under state law when we adopt 15 anything that's binding, we need to adopt that as a 16 regulation. It's kind of immaterial whether that's called a 17 guideline or anything else. I'm confident that what the 18 proposal before you is complying with state law completely. 19 BOARD MEMBER C.H. FRIEDMAN: Any other comments? 20 I have a quick question. 21 There are several comments about that we are doing 22 sort of a template for all the districts, rather than each 23 district being specifically regulated or provided guidelines 24 district by district. Was there a reason for that? 25 It seems historically that while the wording of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 147 1 the act is each district, for each district, and initially I 2 think according to your own summary on page 27 of the 3 history and evolution of this process, the original 4 agricultural burning guidelines were for six of the 11 air 5 basins. 6 And then in 1972 you say the agricultural burning 7 guidelines were amended to apply to all air basins. 8 So apparently since 1972, if that's accurate, we 9 have applied general guidelines to all the air basins and 10 then obviously there is a proposed exemption and other that 11 would permit specific customized guidelines for specific 12 conditions in each basin. That's the approach you've chosen 13 to take. 14 Was there a reason consciously not to go to each 15 region and develop a specific set of guidelines for each of 16 the, what, 11 or 9 -- 17 MR. KENNY: It would be 35 districts or 14 basins. 18 BOARD MEMBER C.H. FRIEDMAN: 14 basins. 19 MS. TERRY: Yes. Actually, a lot of thought went 20 into that one. And certainly as we went through the public 21 process here, we had regional workshops throughout the 22 state. The purpose of that was really to hear from those 23 people who are doing the current programs, the burners, the 24 air agencies. And what we heard in every case was a need to 25 tailor a program to the specific local area. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 148 1 And we really view our regulation as setting a 2 benchmark on a statewide basis and then really facilitating 3 that coordination at the local level. 4 The other aspect, of course, is regions need to 5 cooperate with each other because there is that possibility 6 of impacts across jurisdictional borders. 7 But it was very clear to us that that was the 8 preference of all those involved is that they would have the 9 ability to develop their own programs and ARB staff would be 10 there side by side so that there was no question that the 11 local plans submitted to us would be satisfactory in terms 12 of the overall statewide framework. 13 BOARD MEMBER C.H. FRIEDMAN: I assume that we've 14 been advised by our legal advisors and that's appropriate 15 and that's consistent with the statutory obligation? 16 MR. JENNE: Yes. We believe that is quite 17 consistent with the statutory mandate that we have the 18 discretion to do it either the way we've done it or to do it 19 basin by basin. It's really up to us. 20 BOARD MEMBER C.H. FRIEDMAN: You've taken what is 21 commonality in terms of a common statewide goal or guideline 22 or standard and said let local districts you develop your 23 own programs, but be sure to include and incorporate these 24 minimum standards or take into account these criteria and 25 then -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 149 1 MR. MORGAN: It's kind of interesting because when 2 you look at the authority in the Health and Safety Code, it 3 describes the authority for developing the metrological as 4 well as looking at the air quality on air basin basis. 5 The Air Resources Board has taken that to heart 6 with developing the meteorological criteria for each air 7 basin, but for some reason they have not went the other step 8 and applied the other provisions in the authority to look at 9 the design of ag burning programs on a basin to basin. Kind 10 of interesting concept. 11 BOARD MEMBER C.H. FRIEDMAN: Okay. Any other 12 questions? 13 Thank you, Mr. Morgan. 14 We've been asked to next turn to Mr. Rehermann. 15 Is that pronounced correctly? 16 MR. REHERMANN: That's correct. 17 Good afternoon, members of the board, members of 18 staff. My name is Frank Rehermann and for the record that 19 is spelled R-e-h-e-r-m-a-n-n. 20 I'm a rice grower in Sacramento Valley. I'm here 21 today on behalf of the California Rice Commission, which 22 represents the interests of some 3,000 rice growers in the 23 valley, just like me. 24 We currently produce in California in excess of 25 500,000 acres of rice and we have a position where farm gate PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 150 1 value for rice is approaching $1 billion. 2 I would like to inform you of the commission's 3 viewpoints on a couple of issues of the amendments to title 4 17. 5 As your staff can attest, commission 6 representatives have commented several times on various 7 draft documents as they were released during this process. 8 In addition, rice growers have attended several 9 workshops and meetings that ARB has held in the region. 10 Last week the rice commission submitted comments 11 we believe are important to include in the final regulatory 12 package. I will not detail our suggestions, since your 13 staff is in receipt of that copy. 14 I would like to highlight two issues growers feel 15 strongly about. One issue is ARB's veto authority. The 16 other issue is straw disposal costs. 17 First, regarding the matter of veto authority. 18 Since the beginning of this process the commission has 19 advised against the assumption of authority by ARB and its 20 executive officer to change smoke management plans against 21 the wishes of basin control councils or districts. We 22 believe the extra authority granted to ARB would threaten 23 what has been in this Sacramento Valley a very productive 24 annual evaluation and revision process leading to strong 25 compliance and strong local buy-in. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 151 1 The Sacramento Valley Air Basin Control Council 2 uses collaboration as its primary means to evaluate and 3 modify the burn program. 4 No one at the table currently has veto authority. 5 This has heightened the level of discussions on 6 the technical side, while providing local stakeholders and 7 elected officials the opportunity to draft a plan which 8 actually works for agriculture while protecting air quality. 9 Most often the plan is changed to adopt new 10 regulations and technologies or to enhance procedures. 11 From time to time, ARB staff recommends changes to 12 the program that are deemed to be unworkable from either a 13 technical point of view or from the standpoint of costs and 14 are subsequently rejected by the basin control council. 15 However, ARB suggestions are usually adopted in 16 the plan. 17 What we're most concerned about is that the board 18 having increasingly greater authority such that local 19 participants lose our ability to tailor a program that meets 20 the community's needs while improving air quality. 21 ARB staff made an effort to provide an appeals 22 process, but in reality these title 17 amendments will 23 circumvent the authority of local officials. Because of 24 that, we doubt our availability to design a flexible and 25 workable program that will achieve all clean air objectives PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 152 1 we hope to achieve. 2 The cornerstones of our successful program here 3 and the Sacramento Valley are local compliance and local 4 buy-in. Why risk weakening such a program by leveraging 5 power away from local interest? 6 We strongly urge you to rethink this portion of 7 the regulation and require programs to come in dispute 8 between ARB and any basin control council to revert to the 9 prior year's program. This will allow time for the 10 stakeholders to work on a future plan amendment that fits 11 everyone's needs on a local and state levels. 12 Members of the board, we have a successful program 13 now. Why change it? 14 Secondly, on the issue of straw disposal costs. 15 By now you've heard from a litany of growers like 16 me, who, even in before the recent run-up in diesel fuel 17 costs, have appeared before you talking about the escalating 18 cost of straw disposal. The most recent biannual report 19 issued by ARB stated that the rice industry has paid out 20 over $19 million in added straw disposal costs resulting 21 from the phase-down in rice straw burning. 22 It also stated that some 450 jobs may have been 23 lost in the Sacramento Valley. 24 As a producer -- 25 BOARD MEMBER C.H. FRIEDMAN: You have about 30 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 153 1 seconds. 2 MR. REHERMANN: As a producer I can tell you that 3 it costs me 20 to 35 dollars per acre to dispose of rice 4 straw, in addition to paying some assessments that we pay to 5 the commission and the research board. 6 We do not believe that the added cost of operating 7 a smoke management plan should be passed on to agriculture. 8 And on a final note, we believe that Health and 9 Safety Code requires that an economic analysis be conducted 10 to determine the impacts on agriculture. 11 And since -- and we would like to see you do that. 12 And thank you very much for your hearing me today. 13 BOARD MEMBER C.H. FRIEDMAN: Thank you, 14 Mr. Rehermann. 15 Questions? Any staff comments? 16 MR. KENNY: The only comment I would make is with 17 regard to the, quote, unquote, ARB veto, what we are 18 proposing there is that in the event that we as a staff and 19 the BCC as an organization are unable to reach consensus 20 agreement, we would bring to it this board for a discussion. 21 That is essentially the essence of the ARB veto. 22 BOARD MEMBER C.H. FRIEDMAN: And it would be a 23 public hearing? 24 MR. KENNY: Yes. There's nothing -- essentially 25 the reference there was that the executive officer could PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 154 1 unilaterally decide. That's not accurate. It would 2 actually be this board that would decide. 3 BOARD MEMBER C.H. FRIEDMAN: And there's provision 4 for amendments, revisions, further hearings and so forth? 5 MR. REHERMANN: Thank you. 6 BOARD MEMBER C.H. FRIEDMAN: Thank you. 7 The next speaker is Mr. Soares, of Kahn, Soares 8 and Conway. 9 MR. SOARES: Thank you, Mr. Chairman, members of 10 the board. My name is George Soares. That's spelled 11 S-o-a-r-e-s. 12 My law firm represents the rice industry in 13 California. 14 I want to add on to the comments made by 15 Mr. Rehermann in a couple of ways. 16 He has identified for you the upcountry just a few 17 miles from here we have 500,000 acres of rice being grown 18 every year. This is the same rice industry that stepped up 19 to the plate in the early 1990s, cosponsored legislation 20 that is now restricting its ability to burn rice straw. 21 We did that because we think we have a 22 responsibility to address air quality problems. We stepped 23 up to the plate and did it, but we're very concerned when we 24 see proposals of this nature that we think work against what 25 we have tried to achieve over time. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 155 1 It's not a personal criticism to staff. We worked 2 with staff a lot over the years on various issues. We just 3 have a fundamental problem with this approach. 4 First, from a technical standpoint, Mr. Chairman, 5 we believe that the Health and Safety Code is clear in 6 imposing a responsibility on the Air Resources Board to take 7 into consideration several factors including the economic 8 impact on stakeholders, including agriculture. We believe 9 that same section is clear in saying that you must look at 10 the importance of a viable agricultural economy. 11 Having said that, we now have rather than 500,000 12 acres of straw being burned each year, we have 300 and some 13 thousand acres of straw that can't be burned. We have 14 farmers facing approximately $20 an acre charge to do 15 something else with that straw that they can't burn. 16 We took that responsibility on, but in doing it, 17 it creates economic impact on this industry. 18 In today's session, the thing talked about most in 19 my opinion has been fees, fees, fees, cost, cost, cost. 20 Government agencies continue to say that there's 21 going to be more costs. 22 The staff report says there's going to be more 23 cost. 24 But what the staff report does not identify as the 25 details of that burden that's going to be placed on the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 156 1 stakeholders. 2 We think before this regulation can move forward, 3 you not only need to be clear on the policy, you must be 4 clear on the costs that will be imposed on the stakeholders. 5 The program in the Sacramento Valley and the staff 6 report is appraised. It says that the changes are tailored 7 after the successful approach used in the Sacramento Valley. 8 It goes on at great length like that. 9 We believed that the rearrangement of authority is 10 breaking a process that doesn't need fixing. 11 We also believe strongly about this point, 12 Mr. Chairman, that this cost factor must be considered 13 before this regulation is embraced from a policy standpoint 14 by this board. 15 There are any number of other points to be made, 16 but I think you're going to signal me soon. 17 We are in terms of relationship with this board, 18 the rice industry is looking for cooperation as best we can, 19 but we do not want more surprises. We do not want to be in 20 the position that six months from now someone tells farmers 21 already facing the obligations that I described to you, and 22 those are all real, by the way the fee to accomplish all of 23 this is going to be X. 24 We think that part and parcel of a policy analysis 25 is the fiscal analysis and without that we don't think that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 157 1 good judgment and we don't think that the law allows this 2 board to move forward. 3 Let me finally say that when I looked at the 4 notice, 15-day notice that I received just this morning, I 5 don't know when it was put out, but I saw it this morning, 6 item No. 12 is an interesting item. It talks about the cost 7 of compliance is not expected to have a significant impact 8 on California employment. 9 We may want to tell that to a bunch of counties 10 north of here where employment is in double digits, or 11 unemployment is. 12 And while the proposed guidelines may impose 13 hardships on some small and marginal timber operators, 14 et cetera, et cetera, there is no mention in item 12 and to 15 my knowledge anywhere else about rice growers and about 16 growers of many other commodities what is the impact on 17 employment, what is the impact on pocketbook issues, 18 et cetera, et cetera. 19 As best we can, Mr. Chairman, we are not asking 20 for delay for delay's sake. We are asking that these 21 problems be resolved before this board acts. 22 With that, I'll conclude. 23 BOARD MEMBER C.H. FRIEDMAN: Thank you. 24 Any questions? 25 BOARD MEMBER RIORDAN: Mr. Chairman, just to ask PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 158 1 Mr. Kenny on the fiscal analysis. 2 Do you want to comment on that? 3 MR. KENNY: I'm going to defer to legal, but let 4 me make just one quick comment real quickly which is that to 5 the extent that there is not a reference in there with 6 regard to the rice growers, the main reason for that would 7 be that this regulation would not have a financial impact on 8 the rice growers. 9 They already have a burn control plan that we 10 utilize through the BCC. 11 The only real change in the proposal as it would 12 affect them would be a shift of dispute resolution from 13 right now there's dispute resolution, if we have one, 14 eventually lies with the BCC in terms of making the ultimate 15 decision and we would actually bring it to this board. 16 And if legal has anything they want to answer. 17 MS. KRINSK: I don't think that we do. We did the 18 fiscal impact analysis and these regulations aren't adding 19 any new -- 20 BOARD MEMBER C.H. FRIEDMAN: I'm sorry, I'm having 21 trouble hearing you. 22 MS. KRINSK: I'm sorry. Can you hear me now? 23 BOARD MEMBER C.H. FRIEDMAN: Yes, thank you. 24 MS. KRINSK: The staff performed the fiscal impact 25 analysis and came to some conclusions and concluded that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 159 1 there wouldn't be any additional costs imposed on the 2 agricultural industry. 3 MR. JENNE: The witness was correct in that there 4 is a requirement we do an economic impact analysis and we 5 did do one. 6 BOARD MEMBER C.H. FRIEDMAN: So if we act on these 7 recommendations it's part of the record that we're doing so 8 on the clear understanding that there would be no 9 significant financial impact, additional impact on the -- 10 MS. KRINSK: That's correct. 11 BOARD MEMBER C.H. FRIEDMAN: -- agricultural 12 industry. 13 MS. KRINSK: That's correct. 14 MR. SOARES: I might add, Mr. Chairman, that the 15 staff report talks about establishing a task force to 16 determine funding sources, and it talks about funding 17 sources that by in this generality would include all 18 stakeholders. 19 So when you look at the staff report, it's 20 inconsistent with what you just said, but if what you just 21 said is the deal, then I'm looking for those words. 22 BOARD MEMBER C.H. FRIEDMAN: You can relax. 23 I'm just echoing what I understood staff to say. 24 I think when they refer to stakeholders they're also talking 25 about fee structure, equitable fee structure. They're PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 160 1 talking about the districts and figuring out how to help 2 finance this, so that the districts can implement the work 3 necessary to develop the information to monitor and 4 et cetera, et cetera, rather than the actual permitting. 5 In any case, we just dealt with rice straw burning 6 as a separate matter, as you well know. And I was wondering 7 how that integrated, but you've clarified that. 8 Any other -- 9 MR. SOARES: I think we'll just agree to disagree 10 then on that point, Mr. Chairman. 11 BOARD MEMBER C.H. FRIEDMAN: Keep your fingers 12 crossed. 13 MR. SOARES: Thank you. 14 BOARD MEMBER C.H. FRIEDMAN: Seriously, 15 Mr. Soares, it sounds to me like, according to staff, 16 they're assuming, and their fiscal analysis shows, that 17 there's no plan here that this would pass on any additional 18 fees or costs to the people who are burning the 19 agricultural -- 20 MR. SOARES: Mr. Chairman, just let me say that if 21 I can, there are 350 commodities grown in this state. It's 22 hard for me to fathom how all those crops will not have any 23 sort of impact, significant or otherwise, in the 24 implementation of this plan. We think rice will. We know 25 rice will. We think many other commodities will as well. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 161 1 We're just asking for serious consideration and up-front 2 consideration on that issue. 3 BOARD MEMBER C.H. FRIEDMAN: I'm sorry. 4 Ms. D'Adamo. 5 BOARD MEMBER D'ADAMO: Yes. I'd like to hear more 6 about the economic impact analysis, and I haven't been on 7 the board that long, but as I recall it at previous board 8 hearing there was some discussion of a comparison on an 9 unrelated regulation and how the economic impact compared 10 to, you know, I guess there's a range. Where does this fit 11 in on economic impact as compared to other regulations? 12 MR. KENNY: If I can interrupt -- 13 BOARD MEMBER D'ADAMO: Also I'd like some 14 clarification if as to whether or not the statement was 15 correct that there would be no additional impact. I take 16 that to mean that they wouldn't even be, the agricultural 17 industry would not be imposed any additional fees. 18 MR. KENNY: It would not be correct to say that 19 there is no economic impact. What is correct to say is 20 there's no significant economic impact. What we do is when 21 we fill out these forms they are statutorily required forms 22 that essentially have definitions with regard to what a 23 significant economic impact is. 24 So we fill the forms out with those definitions 25 that have been provided in statute in mind. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 162 1 With regard to the first part of your question, I 2 think what you're asking really about was more cost 3 effectiveness of this regulation in terms of the benefits 4 we'll get from the regulation. And this regulation is a 5 little bit different in the sense that in order -- in that 6 in most other regulations we can point to specific emission 7 reductions that we will achieve. In this particular 8 regulation we are recognizing that in fact we're going to 9 see probably more burning so in fact there will be more 10 emissions. 11 We want to make sure is as those additional 12 emissions occur in the future that the smoke impacts are 13 associated with those essentially do not affect public 14 health and that's going to be kind of management of that 15 smoke consequence. 16 MR. FLETCHER: If I could also add just on the 17 economic impacts, as Mike said, it isn't so much that there 18 aren't any additional costs is that in the economic analysis 19 we assume that there weren't any additional significant 20 costs, and that's because much of the growers are already 21 under smoke programs right now and are paying fees. 22 We did identify in the economic analysis that to 23 the extent that the smoke management program requirements 24 that we're asking are certainly more complex in certain 25 areas -- that will be more complex than they are right now PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 163 1 in certain parts of the state, that the districts may have 2 additional costs that they would want and need to pass on. 3 And what we've indicated is that we think it's 4 very important to track that to ensure that there's 5 equitable fees. As Mr. Cunha said, that's a really critical 6 importance to the burner to ensure that there is an 7 equitable fee. 8 But to the extent, particularly in the Sacramento 9 Valley and the rice folks, they already are under it in 10 essentially the model program on which we based much of the 11 other requirements and therefore we don't expect there to be 12 significant increased costs. 13 MR. SOARES: Mr. Chairman, just let me conclude 14 then and say that -- and say that the rice industry doesn't 15 send me to these meetings for practice. They really believe 16 that there is going to be a significant impact coming on 17 them one way or another. 18 And so we believe that our definition of 19 significant is different than staff's definition of 20 significant. We're asking for all of that to be laid out 21 for all of you to judge before you make a decision on 22 establishing new regulations. 23 CHAIRMAN LLOYD: Thank you very much. 24 Next witness, Mr. Craig Ostergaard and then Mark 25 Rodgers, then Steve Jolley. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 164 1 MR. OSTERGAARD: Good afternoon, Mr. Chairman and 2 board. My name is Craig Ostergaard and I'm with Sierra 3 Pacific Industries, based out of the Martel district, which 4 is in Amador County, and we manage timberland in Amador, our 5 district manages timberland in Amador County, Calaveras and 6 El Dorado County. 7 I would like to thank the ARB staff for their 8 sincere concern and efforts in listening and responding 9 positively to comments from the wide assortment of land 10 managers. It's been a daunting task. 11 Sierra Pacific Industry manages 1.5 million acres 12 of timberland in California and as a company employs a 13 significant number of foresters that are highly skilled in 14 prescribed burning and smoke management. 15 With the increasing population levels we realize 16 that additional planning and coordination is needed to 17 prevent smoke impacts on sensitive areas. 18 As our reforestation forester in charge of 19 planting a half a million or more seedlings a year, 20 preparing an area for planting is my first priority. 21 Growing trees allows Sierra Pacific Industries to 22 make a profit, which allows them to stay in business. 23 My second priority is in fuel break development 24 and fuel modification projects to protect a huge investment 25 we make in establishing plantations. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 165 1 Currently in El Dorado and Amador and Calaveras 2 County, we have been successful in working cooperatively 3 with the US Forest Service, BLM and CDF in establishment and 4 construction of fuel breaks and modifying fuels to lessen 5 the chance of catastrophic fires. 6 We have entered in Amador County with a vegetation 7 management programs and Calaveras County with CDF and have 8 contracted out understory burning to expedite the 9 development of these cooperative fuel breaks. 10 Many of these fuel breaks are located in the urban 11 wildland intermix area. 12 I have a major concern with how the daily burn 13 authorization system will be interpreted and implemented. 14 If there are limitations on the amount of tonnage 15 or acreage that can be burned, the site preparation unit 16 will be burned, that's site preparation unit will be where 17 the seedlings will be planted and the understory fuel 18 modification burn will not happen. 19 The potential is there to put an end to 20 cooperative fuel management efforts and work against the 21 state fire policy to reduce fire hazards in the urban 22 wildland intermix. 23 Please take note that with these comments it is 24 not Sierra Pacific Industry's intent to conduct burns that 25 would cause a negative smoke impact on the general public. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 166 1 Our concern lies with the possibility of losing good burn 2 days due to mismanagement of the authorization system. 3 High burning fees would have the same negative 4 effect on fuel break development and our current burning 5 program. 6 Currently the cost of using biomass operations in 7 conjunction with burning to develop fuel breaks runs between 8 300 to 400 dollars per acre and that's a huge cost to my 9 company that is doing this to protect the land from wildfire 10 situation. 11 And the additional fee to burn may throw this type 12 of management activity out of budget considerations. 13 I believe ARB has a responsibility to look for 14 solutions and funding to help the districts develop and 15 implement their SMPs. 16 In addition, ARB needs to be proactive in 17 developing incentive programs for private landowners and 18 government agencies to perform as many pre-fire fuel 19 treatments and to encourage alternatives to burning such as 20 biomass operations. 21 With that, the evaluations of alternatives to 22 burning should not be removed from title 17 revisions as has 23 been proposed today. 24 One very positive aspect of the title 17 revisions 25 is that it has caused the burners and the air regulators to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 167 1 sit down and develop plans to cooperatively coordinate 2 burning and smoke management, and this is ongoing as we 3 speak. 4 I believe it is possible and is essential that we 5 maximize the amount of burn opportunities to reduce the 6 ever-increasing fuel loading while using technology and 7 cooperative efforts to protect the public health. 8 And I would like to extent an invitation to the 9 board, the Interagency Smoke Council Meeting, two-day 10 meeting, will be in April in Amador County. We'll have one 11 day inside in Sutter Creek and the second day will be a 12 field trip going out into the urban interface intermix area 13 looking at alternatives to burning, broadcast burning next 14 to subdivisions and addressing basically all the issues 15 you're trying to address with title 17 revisions. 16 Thank you. 17 CHAIRMAN LLOYD: Thank you very much. 18 Any questions or comments from the board? 19 Thank you. 20 Next is Mr. Mark Rodgers, then Steve Jolley and 21 Chris Trott. 22 MR. RODGERS: Good afternoon, Mr. Chairman and 23 board members of the board. I'm Mark Rodgers. I work for 24 Scotin Pacific Holding Company and I've been involved in 25 prescribed burning for 18 years now, and am currently in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 168 1 charge of 217,000-acre property and managing those fuels. 2 One of the problems that came up in the scoping 3 sessions was that on the North Coast we have a cooperative 4 effort already in place with the local air management 5 district people, which is Mr. Wayne Morgan who spoke to you 6 earlier, and one of the requests that we tried to get 7 invoked in this title 17 change was that if you have a 8 program out there in the state that's working and working 9 well, then why take that away from us. 10 Currently I don't see and I don't think Wayne 11 feels that this has been taken into account, a successful 12 program. 13 And you talked earlier about you know it when you 14 see it. And not only do we know it, not only do we see it 15 and know it, but you presented it this morning as one of the 16 successful programs in the State of California. 17 I would merely ask that our program be allowed 18 under title 17 to be utilized and utilized strongly to allow 19 us to continue to operate and not increase the costs of our 20 burning program, which would ultimately tell us to stop 21 burning. 22 And I would say at this point we put a airplane up 23 every morning prior to burning so we can get an air profile 24 to tell us what the smoke is going to do. No $40,000 25 bureaucrat is going to tell us what that airplane flight is PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 169 1 going to tell us and that costs us sub a dollar an acre to 2 operate. A very good program, well recognized, you saw it, 3 you know it, you put it on the screen this morning. Please 4 put that into this program today. We would very much 5 appreciate that. 6 CHAIRMAN LLOYD: What level of bureaucrat would do 7 the job? 8 MR. RODGERS: The so-called burn czar. The guy 9 that's going to come in and do the allocations every 10 morning. 11 And currently we do that allocation process every 12 morning. We call in, we make the decisions with them 13 cooperatively. We're looking at this profile information. 14 The program works extraordinarily well. 15 We have a good reputation because of it. 16 No, we're not complaint free. 17 But don't forget about the visual complaints that 18 are included in there. The burn barrel complaints that are 19 included in there. 20 We work very very hard to not impact the 21 communities. We need to manage these fuels. And sure, 22 we're welcome to turn it over to CDF at, what was it, 1,700 23 and something dollars an acre? But that's not fair to the 24 taxpayers of California. It's not fair to the timber 25 industry. It's not fair to tree growers. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 170 1 So please consider putting in the North Coast 2 co-op's smoke management program as one of the alternatives, 3 either under the exemption process or somewhere where you 4 could find time to put in it there. I think it works. I 5 think your staff thinks it works. And we're proud of it. 6 CHAIRMAN LLOYD: Thank you very much. 7 Any questions or comments from the board? 8 Thank you. 9 Next, Mr. Mark Rodgers, Steve Jolley, Chris Trott. 10 That was Mark. Steve Jolley, Chris Trott and then 11 Paul Violett. 12 MR. JOLLEY: Good afternoon. Thank you for this 13 opportunity, and you won't have to give me the red light, I 14 hope. 15 I had not intended to say anything this morning, 16 this afternoon, or this morning, actually, I was surprised 17 it goes this long. But I'm Steve Jolley with Wheelabrator 18 Shasta Energy Company, one of the biomass-powered companies 19 in the state, representing about 75 megawatts of capacity. 20 And we've been involved with this process from the 21 very beginning, and I don't know how long that is, but it 22 seems like it's going on a couple of years. And we've 23 struggled for a lot of things and we basically came to the 24 point where we were willing to settle for what we had, until 25 I went to work yesterday and found out there's something PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 171 1 new. 2 And I'm referring specifically to the clause that 3 had added to it -- I mean, the smoke management plan for 4 larger burn projects would include an evaluation of 5 alternatives would be considered. 6 And we considered that a kind of a success and 7 something that we could live with, because having that then 8 we would be in position to debate whether a project was most 9 appropriate to burn or do something else. 10 And we are not against burning, I need to say 11 that, because we're often cast in that light, and that's not 12 the case. 13 But by allowing NEPA and CEQA projects to -- it's 14 letting them off the hook. The biggest burners in the state 15 will now be off the hook for having to do such an analysis. 16 And I don't think it's either proper or fitting 17 that you should allow that to happen because the CEQA 18 guidelines under which you labor specifically say that the 19 rules and regulations that you adopt for this regulatory 20 program do all the following, require that an activity will 21 not be approved or adopted as proposed if there are feasible 22 alternatives and feasible mitigation measures available, 23 which would substantially lessen any significant adverse 24 effect. 25 And I can tell you in the last 12 months there PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 172 1 have been many burn projects that had feasible alternatives 2 that would have lessened the detrimental effect to air 3 quality. 4 But without an in-depth analysis, it's easy for 5 anyone to say we considered the alternatives and then we 6 burned. And by allowing all of the projects that qualify 7 under CEQA and NEPA, you're essentially doing that. 8 So that the first line, an evaluation of 9 alternative burn considerations, is rendered meaningless. 10 And beyond that, the CEQA guidelines say that you 11 will produce guidelines for the orderly evaluation of 12 proposed activities in the preparation of a plan and other 13 written documentation. 14 And all I can say is the reason for that is so 15 that people like me can read it and either agree or 16 disagree. Hopefully, the analysis would have been good 17 enough that I will come to the same conclusion. 18 And whenever I bring this argument up, the burners 19 of the world give me the worst possible scenario for biomass 20 harvesting and say what would you do here. 21 In those scenarios, I would say probably ought to 22 burn it. 23 But I'm only trying to get to those projects which 24 are on flat ground that are close to power plants that don't 25 require new road building and there's a lot of those out PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 173 1 there. 2 This is about smoke management and all I'm saying 3 is if you don't have to light the fire to accomplish the 4 goal, you don't have any smoke to manage. And we have those 5 kinds of opportunities that are being passed up every year. 6 Thank you. 7 CHAIRMAN LLOYD: Thank you very much. 8 Yes, Ms. D'Adamo. 9 BOARD MEMBER D'ADAMO: Well, I really like the 10 Governor's approach on this issue, and that is to provide 11 for incentives for biomass, and I'm just wondering if 12 there's some other provision in the regulation or in the 13 staff report that would encourage alternative uses such as 14 biomass, as opposed to utilizing a more proscriptive 15 approach. 16 MR. JOLLEY: Yes. One of us needed to mention 17 that the $30 million that was mentioned in the staff report 18 is relevant only as far as agricultural residues go. It 19 does not apply at all to forest-derived biomass fuels. 20 And we have probably tried to find a way that it 21 would, at least a dozen different ways, and we haven't given 22 up yet. In fact there is a potential credit, a federally 23 handed down credit from the Department of Energy which would 24 do a similar thing for forest-derived biomass fuels. It's 25 in the President's budget and we've got our fingers crossed PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 174 1 that it will get through the budget process and if it does 2 then we'll be able to respond to some of these people who 3 say it's not economically feasible, in a better way than we 4 can today. 5 MS. TERRY: I would just comment that in addition 6 to this regulatory item, certainly there are other 7 activities staff are involved in on the biomass issue. 8 There's an interagency working group that Resources Agency 9 is leading and I think that's a really important project in 10 terms of addressing the forestry issues. So certainly our 11 sister agencies are very interested and we're supporting 12 them every way we can. 13 MR. FLETCHER: I would add, on the regulation the 14 only reference to alternatives is for the large burn 15 projects. I just want to clarify. There's, I think, some 16 confusion about the sentence that was added, and what we're 17 trying to do is to basically in acknowledging that the 18 alternatives analysis that are done for CEQA and NEPA will 19 satisfy the requirement for doing the alternative analysis 20 for the smoke management plan. Now whether that's attached 21 to the smoke management plan, we would hope that we could be 22 able to work that out with the burners. 23 But if the alternatives analysis is not sufficient 24 in the CEQA and NEPA analysis, then we ought to be working 25 on the CEQA and NEPA analysis to make those alternative PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 175 1 analyses real, and we didn't feel it was appropriate to do 2 two separate analyses on the same thing. Let's do it once, 3 let's do it right the first time was the concept. 4 BOARD MEMBER D'ADAMO: So it's still required? 5 MR. FLETCHER: It's still required. 6 MR. JOLLEY: I personally wouldn't have had a 7 problem with that, and I would challenge somebody with a 8 NEPA document to show me analysis and if it does it, then 9 I'm happy. 10 MR. FLETCHER: The regulation is explicit about 11 that. It says if there are -- if an alternatives analysis 12 has been done as part of a CEQA or NEPA analysis, if it 13 hasn't been done, then it can't be. 14 CHAIRMAN LLOYD: Thank you very much. 15 Next witness, Mr. Chris Trott, California Biomass 16 Energy Alliance. 17 Do you qualify for the 30 million? 18 MR. TROTT: Two of our power plants do. 19 Again, I want to clarify that that's only for the 20 use of agricultural waste that would normally be opened 21 burned. In fact, if that program actually gets passed 22 through the Legislature in the Governor's budget, it is set 23 up, from what I see, to incentivize plants to burn more 24 agricultural waste and burn less forest waste actually, 25 because there's no incentive to burn any forest waste PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 176 1 anymore. 2 So my name is Chris Trott. I'm the director of 3 wood fuel purchasing for Ogden Power and I'm also here 4 representing the California Biomass Energy Alliance today. 5 We were not going to make any comments whatsoever today, 6 because generally we're pretty happy with everything that 7 staff has done in these proposed guidelines, but when I got 8 here there was one thing in the staff proposed additional 9 changes that kind of gave me a little bit of heartburn and I 10 thought I might just comment on that. 11 And that is just what Mr. Jolley talked about, the 12 80160(c) 5 amendment that says projects that have met 13 applicable NEPA or CEQA requirements will be considered to 14 have complied with this provision of considering 15 alternatives. 16 And I'm a little concerned about this, because I 17 think there is possibly a move by someone to circumvent 18 ARB's authority in this. And let me explain that just a 19 little bit. 20 Up until now anyway, my experience has been that 21 NEPA analysis of alternatives, and I should say I don't have 22 that much experience with CEQA, but NEPA analyses of 23 alternatives to burning has been inadequate. In fact, 24 there's not a requirement in NEPA to consider alternatives 25 to burning necessarily in a NEPA analysis. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 177 1 Now, I'll talk just a little. I'll try to be very 2 brief here. I'm holding up right here the guidance document 3 for the Pacific Southwest region called categorical 4 exclusions for prescribed fire projects. 5 Now, what the Forest Service does, I'm guessing 95 6 percent of all prescribed burns are performed under 7 categorical exclusions section of NEPA and on the second 8 page of this it very clearly states that categorical 9 exclusions do not consider alternatives. So scoping for CEs 10 will deal only with the action and their impacts. 11 So right off the bat, 95 percent of a NEPA 12 analysis didn't consider an alternative. 13 Secondly, if you don't do a categorical exclusion, 14 you do an environmental analysis under NEPA, and I want to 15 just give you an example of an experience I had with the 16 Stanislaus National Forest. 17 In 1996 there was a very large fire in Stanislaus 18 National Forest, and they proposed a fire salvage operation 19 followed up by fuels treatment and prescribed burning. 20 In the environmental analysis, I commented using 21 here's the summary of my comments. I asked them to assess 22 the need for burning following the harvest, compared to 23 alternative fuel reduction or site preparation methods such 24 as scarification and piling and chipping. And I asked them 25 to quantify the amount and types of material to be burned, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 178 1 to describe the burn proposed, to quantify the emissions of 2 air pollutants, to describe the mitigation measures to 3 reduce air pollutants, to describe and quantify air quality 4 impacts on downward communities and Class 1 areas. And I 5 might mention that this particular project was right on the 6 boundary of the Yosemite National Park and the wilderness 7 area. That was a pertinent. 8 By the way, I got these right out of the revised 9 draft environmental impact statement for managing California 10 spotted owl habitat, which was an EIS that the Forest 11 Service did in 1996, but it was never signed. So it was a 12 draft, never signed. 13 Here was my response I got back from the Forest 14 Service. The revised draft environmental impact statement 15 managing California's spotted owl habitat in the Sierra 16 Nevada National Forests of California is a draft document. 17 Without the decision and adoption having occurred, at this 18 point the listed requirements are not required. 19 Okay. In your face. 20 Now, I was sort of happy. I was ticked at first, 21 but then when the final EA came out it said they were going 22 to do 1500 acres of mechanical fuels treatment prior to 23 burning to mitigate the smoke impacts. But when the timber 24 sale contracts came out for bid, there was no mechanical 25 fuel treatment in the timber sale contracts. So I was PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 179 1 concerned. I felt taken advantage of. I sent another 2 letter. I said if you don't mechanically remove the fuels 3 on this 1500 acres, then you're going to add 312 tons more 4 of PM-10 to the air, 4,000 tons of CO and 440 tons of other 5 greenhouse gases. That was in May of 1998. 6 CHAIRMAN LLOYD: Your five minutes -- 7 MR. TROTT: Here's my response. Originally 8 biomass removal was to be included with the Akerson fire 9 salvage project. However, this was already after the 10 decision was made and the project implemented. After an 11 economic analysis was conducted, it was determined that 12 biomass removal could not pay for itself and therefore we 13 dropped it as a mitigation for smoke. 14 Now, what am I asking? I'm saying at least at 15 minimum this staff language should be amended to say that if 16 an analysis of alternatives was actually done, it should be 17 attached to this smoke management plan, number one. 18 And the two other questions that are totally 19 unanswered here is what if alternatives to burning were 20 never considered, as in the case of the categorical 21 exclusion, and number two what if the mitigation measure was 22 proposed in the NEPA analysis but never done. 23 CHAIRMAN LLOYD: Thank you. 24 BOARD MEMBER D'ADAMO: I'd like staff to respond. 25 MS. KRINSK: I'll respond to that. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 180 1 Both NEPA, which is the federal statute, and CEQA, 2 the California statute in the Public Resources Code, 3 generally require that for any activity that may have a 4 potentially significant impact on the environment, an 5 environmental analysis be done that considers both 6 alternatives and mitigation measures. Both of those 7 statutes, as the witness testified, do have either 8 exclusions that called out under the federal law are 9 categorical exemptions under state law. And I'm not 10 familiar with the particular exclusion, but I have no reason 11 to believe that there is not an exclusion for that 12 particular activity. 13 And in that case, however, our draft regulations 14 and the intent of those regulations is that if a NEPA or 15 CEQA analysis of the alternatives was not performed, then it 16 cannot serve as a substitute for doing the alternatives 17 analysis, and that an alternatives analysis would have to be 18 done. 19 The intent was simply that if an alternatives 20 analysis is performed as required generally by NEPA and 21 CEQA, we didn't want to require duplicative effort in having 22 that same analysis be done again. 23 So if there is no analysis, we have to -- the 24 agency issuing the permit has to do it. If not, if it's 25 already been done, then they don't. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 181 1 BOARD MEMBER D'ADAMO: Actually that's not my 2 understanding, though, because the new language would, as I 3 read it, it would not require an alternatives analysis if 4 there was a categorical exclusion under NEPA or CEQA. 5 MS. KRINSK: That wasn't our intent and we can 6 look at that and change it. 7 BOARD MEMBER D'ADAMO: Okay. 8 CHAIRMAN LLOYD: Thank you very much. 9 MR. TROTT: Thank you. 10 CHAIRMAN LLOYD: Next witness, Paul Violett, David 11 Bischel and John Buckley. 12 MR. VIOLETT: Thank you, Dr. Lloyd, members of the 13 board. My name is Paul Violett. I'm a registered 14 professional forester. Today I represent the California 15 Licensed Foresters' Association. CLFA represents some 800 16 resource professionals entrusted with the management of 17 California's forested landscape. 18 And before I proceed with my specific comments 19 relative to the rule package, I also would like to take the 20 opportunity to thank and commend your staff. Throughout the 21 progress of this rule package I have found them to be great 22 to work with. They took great effort to solicit our 23 comments and in many ways took our suggestions to heart and 24 modified the proposal accordingly. I found them to be 25 professional, personable and patient. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 182 1 I look forward to working with them in the future 2 on issues where the goals of healthy forests and clean air 3 interact. 4 As far as the specifics of this proposal, I will 5 address three general topics and they are the need for this 6 regulatory change or the lack therefore, the concern for the 7 cost of implementation of this program, and the lack of a 8 policy direction to the districts with respect to 9 prioritization of burn projects within the proposed 10 authorization program. 11 The need for this regulation, I have to step back 12 to the first workshop that I was at, and I'm going to 13 reiterate some of the statements I made then, the only 14 exception, the staff report indicates that one of the 15 reasons for this change proposal is the EPA's draft 16 prescribed burning and air quality report. And I guess I'm 17 surprised that EPA is not here to represent their point of 18 view and testify to that extent. They were at the 19 workshops. 20 I personally, after two years of involvement in 21 the process, I'm still not convinced that a new regulation 22 is necessary to meet the stated goals. Simply stated, we 23 have a sound smoke management program that has evolved over 24 30 years. 25 Where there are problems, I think we haven't taken PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 183 1 the time or effort to exhaust the nonregulatory improvements 2 that are possible with an existing system. 3 One of the notions that's been brought is the need 4 for improved communication between the air districts, the 5 burners and the ARB. 6 I, for one, agree with that and I think the 7 implementation of the prescribed fire incident reporting 8 system will go a long way towards that end. I encourage 9 this board to continue its support of P first and hasten its 10 availability to burn regulators and to the burn community. 11 It will be a valuable tool. 12 I applaud the proposal for marginal burn days, the 13 use of a marginal burn day. I think that actually exists in 14 existing regulations and that the air pollution control 15 officers can locally overrule the ARB's burn notice and 16 therefore can limit individual projects on a given day, and 17 they should use that as appropriate. 18 Likewise, burn plan submittal requirements can and 19 have been implemented by individual districts as needed. 20 The North Sierra Air Quality Management District's program 21 is a good example. They have targeted burn plan submittal 22 requirements for those what they call review areas, those 23 areas that are most in need of that increased scrutiny. 24 And I find that to work well. Most of my burning 25 occurs in that district. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 184 1 On the educational front, believe me, there is 2 plenty of opportunity to improve the knowledge base of both 3 the air regulators and the burning community relative to 4 smoke management. And heretofore private burners have not 5 had much opportunity to develop that knowledge base. 6 As I'm sure you're aware, the ARB, in cooperation 7 with the North Coast Air District, is going to be conducting 8 its first smoke management training workshop next month and 9 with another one scheduled in the following month down in 10 the Sierra Nevada, and I'm personally participating as an 11 instructor in that and I think that's what we need to do. 12 We need to get the information out there and available to 13 the users. 14 And then, finally, of course, is the need for 15 approved meteorological predictions. I think everyone knows 16 we have abilities, technical abilities, to improve those 17 predictions, but they're not necessarily funded right now, 18 and that we could improve predicted capacities for 19 meteorology. 20 Those are my concerns with the lack of the need of 21 regulation or not exhausting non-regulatory means to the 22 solutions. 23 I will address the cost of implementation of the 24 program, and I think this is the single greatest concern of 25 CLFA's membership with the adoption of this rule package as PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 185 1 it is proposed. We fear the likely effect will be to 2 discourage fuel reduction treatments to the forested 3 landscape. The reasonable estimate of the fees are around 4 10 to 15 dollars per acre for burn projects of an average 5 size. This would be in addition to any costs incurred for 6 burn plan preparation, any costs associated with the 7 mitigations proposed therein. 8 This concern is amplified when forest management 9 agencies negotiate themselves out of the district fees. 10 CHAIRMAN LLOYD: Your time is up. I'll give you 11 couple sentences to wrap up. 12 MR. VIOLETT: Sure. 13 Like I said, we're concerned about the fees and 14 we're concerned about the lack of a prioritization of the 15 projects under authorization. 16 We think forestry generation projects deserve 17 prioritization, as well as those projects where project 18 proponents have reduced their fuels in advance of their 19 burning, and that policy statement doesn't exist in this 20 proposal. 21 CHAIRMAN LLOYD: Thank you very much. 22 MR. VIOLETT: Yeah. I'd like to offer myself and 23 the California Licensed Foresters' Association as resources 24 available to you and your staff in pursuing our mutual goals 25 of healthy ecosystems and healthy people. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 186 1 Thank you for your consideration. 2 CHAIRMAN LLOYD: Thank you very much. 3 Next witness, David Bischel and John Buckley, 4 Cynthia Cory. 5 MR. BISCHEL: Mr. Chairman, members of the board, 6 thank you. My name is David Bischel. I am the president of 7 the California Forestry Association. We're a trade 8 association, represents primary producers of forest products 9 in the state, as well about 3 million acres of private 10 forest landowners and biomass-to-energy producers. 11 I too would like to thank staff for the job that 12 they've done in working with landowners on this and 13 appreciate their understanding and some of the issues that 14 have been addressed here. 15 I just have two issues that I wanted take raise. 16 One -- and both of them were just brought up, so I 17 don't want to spend a lot of time, one is the evaluation of 18 alternatives under 8160(c) 5. The other is, as Paul Violett 19 just raised, the setting of priorities for sivicultural 20 activities. 21 In that context, I just want to state that we're 22 really here today looking at these regulations because 23 federal land managers are proposing huge, significant 24 increases in burning. 25 If you look at the staff's report on page 37, it PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 187 1 really outlines what is happening in terms of prescribed 2 burning in that there is no proposed change in private 3 landowner burning in terms of forestry activities, there's 4 no proposed change in terms of ranching activities and in 5 fact the only change in agricultural activities is the 6 reduction of burning being done by rice. 7 The big increases that we're looking at that are 8 driving this entire process are being done by federal lands. 9 Forest Service is proposing to double in the next three 10 years the amount of burning that they're going to do and the 11 BLM is proposing to triple the amount of acres they're going 12 to do. So now we're looking at trying to accommodate and 13 creating a process that is putting a burden on private 14 landowners who are not changing their program whatsoever in 15 terms of the activities they're doing in and the amount of 16 burning they're doing. 17 So one of the reasons that we are significantly 18 concerned about that one section, which does, I think, leave 19 the new language, does leave to question whether or not a 20 NEPA analysis actually does in fact provide an analysis 21 alternatives. If it does, then it should be attached. 22 I would suggest that the existing language that 23 staff had in there was more than adequate and if a NEPA 24 analysis has been done that can be attached to the burn 25 report. Because in the end the single most significant PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 188 1 issue is what can the Forest Service do in terms of 2 alternatives to burning so that their impact is minimized on 3 the entire program in the state. 4 CHAIRMAN LLOYD: Thank you very much. 5 MR. BISCHEL: Thank you. 6 CHAIRMAN LLOYD: Next, John Buckley, Cynthia Cory 7 and Gary Evans. 8 MR. BUCKLEY: Good afternoon. My name is John 9 Buckley. I'm the director for the Central Sierra 10 Environmental Resource Center. I note that it appears that 11 I'm the only conservationist representing today and I notice 12 that I'm also after six members of the timber industry, so 13 again I'm kind of packaged in here. 14 But obviously those of us that represent the broad 15 environmental community, like many of you here, have some 16 conflicting objectives. You want to see air quality and 17 that's clearly the priority for those of you on this board, 18 and it's a priority for us, and yet we are also aware that 19 burning is a tool to reduce fire danger and to provide a lot 20 of the values that are in the ecosystem and there's no 21 question that California is a fire-based ecological system 22 that fire is part of the whole process. 23 A number of speakers that just talked have been 24 objecting to the specific language that you proposed that 25 would allow for the sufficiency of NEPA and CEQA PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 189 1 requirements. And unlike them, even though I happen to work 2 with Chris and others in support of biomass, I'm very 3 grateful that there's some incentives that the Governor is 4 putting forward for biomass. We're supportive of the 5 language that is now worked out with the agencies because 6 that language does require that there's analysis of 7 alternatives, and if there is that analysis, then it should 8 be suitable to be accepted by those that are looking at the 9 smoke management plans. If it hasn't been done, it should 10 be done, because we do support an analysis of alternatives. 11 But we would point out that on federal lands in 12 particular there's vast areas of wilderness, there's vast 13 areas of inaccessible places where burning is the only 14 option and to require extensive analysis beyond what the 15 agency would provide would just be a paperwork exercise. 16 I'd like to speak really quickly, because I know 17 there's time constraints and I will stick to it, is some 18 specifics on page A-6, 80102(b) in your document now. It 19 lists this phrase, it says any local or regional authority 20 may establish stricter standards for the control and 21 regulation of agricultural burning, including prescribed 22 burning, than those set forth in these guidelines. 23 All I'm asking you to consider is that appropriate 24 language to have in? Districts are great at this point, 25 they're working so hard to try and find the balance between PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 190 1 a lot of pressure groups, but let's be honest, in some 2 locales there are local county supervisors and others who 3 have very strong objections to the new direction that public 4 land managers are going. They're going to put tremendous 5 pressure on local districts to constrain public land burning 6 and if you don't have some language that changes this, that 7 simply allows any extent of restrictions to put forward by 8 districts. While the vast majority may provide fair 9 balance, it does allow for there to be restrictions to the 10 extent that could constrain public land burning. So I ask 11 you to look at that particular section, 80102(b). 12 Another one that I would cite real quickly is on 13 page A-13, 80145(m), and that one was one that in 14 considering priorities districts shall consider the public 15 benefits of burn projects. 16 I believe that that's a very positive statement to 17 have in there, but it doesn't require that those projects 18 that do have the greatest public benefits be prioritized 19 above projects that simply are providing profit to some 20 private property owner, and again you represent the vast 21 majority of people, not any particular entity. 22 So what I'm urging is especially because the vast 23 majority of public land burning is done in higher 24 elevations, is done where winds take it up and over the 25 crest, where there is dispersal and doesn't mean that there PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 191 1 aren't exceptions to that, but where the vast majority of 2 public lands are being burned, I believe that some clear 3 prioritization is appropriate for those burns. 4 The last thing I would note is that you've had a 5 lot of comments early on in this process that fire is 6 necessary to reduce fire risk and to provide for the health 7 and safety of many members of the public, especially those 8 of us that live in the rural outland areas, and I would just 9 emphasize again that the amount of smoke emissions that are 10 produced by wildfires in the summer, and I was a firefighter 11 for 13 years, I know them very well, are tremendous, in 12 comparison to those that are produced under control 13 conditions. 14 And so simply to restate, California is going to 15 burn, most of its wildlands are going to burn at some point 16 over the next century. Almost every area is going to have 17 burning take place and the question is will it burn under 18 control or will it burn out of control. 19 And by your providing support for carefully done, 20 monitored, the broad-scale burning that's done on public 21 lands, you also will be reducing the fire risk and the air 22 quality effects during the summer season. 23 So thank you. I'm very supportive. 24 And I do believe again that your staff has bent 25 over backwards to work with a broad range of interests, many PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 192 1 of which we've been pressuring your staff from different 2 directions, so in the midst of it, I think that they have 3 tried for good balance. 4 Thanks to all of you. 5 CHAIRMAN LLOYD: Thank you very much. 6 Next witness is Cynthia Cory and then Gary Evans. 7 MS. CORY: Chairman and board, Cynthia Cory, from 8 the California Farm Bureau. 9 We were having a little panic attack over here 10 when people started talking about the NEPA and the CEQA 11 analysis, so we started looking at the 15 amendments that 12 have been suggested, and I just need a clarification on the 13 field crop change that's in there. I just want to clarify 14 that you're not changing the definition of agricultural 15 burning, you're just -- that was in the original regulation 16 and it's still the same, so there's change there, because 17 that just kind of took me by surprise. 18 MR. FLETCHER: That's correct. The only change is 19 to provide a little more flexibility for the districts to 20 allow burning outside the 10:00 a.m. to 5:00 p.m. time 21 period. We inadvertently left field out originally. 22 MS. CORY: Okay. I'll have to look at it a little 23 closer, but I just wanted to make sure. I panicked there 24 thinking all of a sudden you were changing ag burning to 25 field crop burning, and that was a big deal. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 193 1 So I'll go back to my original remarks, which are 2 real short. 3 CHAIRMAN LLOYD: Minus one minute. 4 MS. CORY: Less panicked. 5 Which is first I wanted to thank everybody. I'm 6 representing -- I've been part of a coalition with at least 7 anywhere from 20 to 30 groups, depending on the moment, and 8 I just wanted to clarify. I thank the staff very much for 9 working with us. We've been at the first workshops since 10 the beginning. The staff have been very available and we 11 appreciate your addressing our concerns. 12 The one thing I'd like to say about this 13 coalition, there's always a beauty and an un-beauty to 14 working in a coalition and up until moments yesterday we 15 kind of became a smaller coalition. 16 In fairness to that coalition, I just want to let 17 you know that it's no secret all along the agricultural 18 community has said that we wanted to duplicate the Sac 19 Valley basin process just like you have said in many of your 20 reports, and when we realized that you were going to stick 21 with that and continue with the disapproval process, which 22 is new, a part of the coalition, which includes the 23 California Farm Bureau, decided to ask for a 60 more days in 24 the negotiation. We felt like that's better than nothing, 25 which is what we feel like we might be getting. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 194 1 I just want to clarify that and we appreciate the 2 60 days, but that was not our original preference, and 3 because of that our coalition got smaller. 4 Secondly, I know you have heard it. Fees, fees, 5 fees. We are concerned. And I'm glad to hear you're going 6 to have a report that's going to come back to the board and 7 I hope that report includes a thorough analysis of how 8 things go with the fees, and if they are being equitable or 9 not. 10 So that's it. Thanks very much. 11 CHAIRMAN LLOYD: Thank you very much. 12 And our last witness is Gary Evans. 13 No. We outlasted him? Okay. 14 It looks as though that's it. 15 Are there any written comments that raise new 16 issues we haven't discussed already that need to be read 17 into the record? 18 MR. McNERNY: There are written comments, 35 19 comment letters from people who haven't testified. Most of 20 them do address comments that have already been brought up 21 by others. 22 I can just go through the letters relatively 23 quickly and mention new issues that have been brought up. 24 A letter from the California Legislature signed by 25 nine members of the Legislature. The members support PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 195 1 measures to minimize health impacts of smoke, but ask that 2 priority be given to prescribed burning that benefits the 3 public through safety or ecosystem health improvement and 4 ask that we minimize administrative demands and costs. 5 I think those have been discussed. 6 Amador County APCO Karen Huss sent a letter 7 commenting on several of the things brought up by other 8 APCOs already, also asking that the definition of eminent 9 and substantial economic loss is needed. That definition 10 varies district by district and districts establish that. 11 And she appreciates the 48-hour forecast being put 12 in the regulations instead of a decision. 13 Tuolumne County, Mike Waugh, sent a letter asking 14 for things brought up by other districts already. 15 Santa Barbara County also a letter. They had 16 questions relating to the interpretation and implementation 17 of the proposal, including adoption enforcement, the daily 18 burn authorization system and exemptions and flexibility to 19 establish alternate thresholds. 20 As we have indicated, staff will work with 21 districts and others in interpreting and implementing the 22 proposal. 23 Monterey Bay sent in a comment letter and they had 24 issues brought up by others already. 25 The Bay Area Air Pollution District was concerned PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 196 1 about the cost of the program, similar to questions brought 2 by other districts. 3 The San Joaquin Valley District supported the 4 changes to the program. Also concerned about costs. 5 Several other people from Lake County had similar 6 concerns. Bill Merriman, Raymond Mostin, and Brent 7 Holdenried, and Dick Keithly all had -- and Helen Behn, had 8 similar concerns as the others expressed by Lake County. 9 The El Dorado National Forest, US Forest Service 10 supplied a comment letter requesting language that allows 11 burning agencies to appeal district permit decisions to the 12 Air Resources Board. 13 Staff response is the districts already have 14 permit authority and appeal procedures. 15 She had similar comments on the NEPA planning 16 process that have already been discussed. She has concerns 17 about use of nonburning alternatives previously discussed. 18 And she asked for a permit shield from public nuisance 19 violations for agencies. 20 We note that public nuisance prosecutions are not 21 normally pursued if smoke management requirements are 22 complied with. 23 She does bring up a concern that language 24 requiring a Fish and Game certification of burn projects 25 carried out for wildlife improvement she feels that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 197 1 certification doesn't apply to federal agencies. 2 We disagree. 3 The National Park Service, two comment letters, 4 Mike Tollefson, felt that, had concerns about a section of 5 the regulation that requires districts to issue no burn day 6 notifications when fire protection agencies ban burning for 7 fire protection. He's concerned that if one portion of a 8 district or fire protection agency bans burning that such 9 burning would be banned in the entire district. 10 That's not what districts tell us they would do. 11 US EPA Region 9 sent in a comment letter. They 12 want several things that we clarified, that permits are 13 required on marginal burn days. In fact the proposal does 14 require permits on marginal burn days. 15 They'd like to delete the provision from the 16 regulation that allows burning on no-burn days for imminent 17 and substantial economic loss. That's a provision of state 18 law. 19 So we can delete it, but it still remains in 20 effect. 21 They asked that sacks or containers for fertilizer 22 be specifically excluded from burning on non-burn days. 23 These provisions are optional for districts. They're 24 contained in existing regulations. 25 And they suggest including the meteorological PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 198 1 criteria for determining marginal burn days. The proposal 2 does contain provisions to allow development of these 3 criteria, but of course they have not been developed as of 4 yet. 5 Roseburg Resources Company, Jeff Webster, comments 6 that he prefers prioritization of the daily burn 7 authorization based on potential for economic loss. 8 And the proposal does allow districts to 9 prioritize burning if it's needed and economic concerns are 10 one of the things that they would have to consider if they 11 choose to do that. 12 He also feels that drying times can't always be 13 complied with. The districts can consider feasibility in 14 determining and establishing drying times. 15 Sequoia Forest Industries, Patrick Emmert, 16 commented and urges that smoke management programs be 17 communicated to public and private in a timely manner. 18 And the regulation, proposed regulation, requires 19 districts to work with the public and affected parties in 20 developing their programs. 21 He has other concerns that have already been 22 discussed. 23 Gary Slaughter submitted a letter. He argues 24 against prescriptiveness in favor of the performance in the 25 guidelines. Results are what should count. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 199 1 We agree with Mr. Slaughter and feel the 2 guidelines represent a reasonable balance between structure 3 and flexibility. 4 Steven Launi from Forestry Service submitted a 5 comment letter. He's concerned that requirements in the 6 regulations may delay ignitions and reduce the efficiency 7 for small burners. 8 And the proposal does allow a simplified smoke 9 management plans for small burners. 10 Alamo Farming, Charles Porter, submitted a letter, 11 concerned that the new regulation would restrict or prevent 12 prescribed burning. 13 Staff's response is that the regulation provides 14 new opportunities for prescribed burning, particularly 15 through the use of marginal burn days. 16 California Native Plant Society sent two letters, 17 both concerned that the regulation might restrict the use of 18 prescribed fire. Additionally, asking that priority be 19 given to public interest burns and other items already 20 discussed. 21 Robert Barrett submitted a similar letter 22 concerned about restrictions on the use of prescribed fire. 23 The California Indian Basket Weavers' Association 24 submitted a comment letter noting that more prescribed 25 burning is needed, not less. And that pre-fire fuel PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 200 1 treatment and non-burn alternatives are harmful to basket 2 plants. 3 We note that such treatments are not required. 4 William Carson of Wheelabrator submitted a letter, 5 made similar comments to an earlier commenter from 6 Wheelabrator. 7 Department of Parks and Recreation, Mary Wright, 8 submitted comments asking for a consistent administrative 9 and impact fee structure. 10 Staff is committed to work with districts and find 11 ways to support their programs and will also report back to 12 the board about the implementation of the regulation. 13 Santa Barbara Fire Department is concerned about 14 the cost of the proposal and the loss of the 48-hour 15 decision process and both of those have been discussed 16 previously. 17 Save Our Resources, Linda Millerick, is concerned 18 about the air pollution impacts of prescribed burning and 19 asks ARB to take a stand against air pollution and protect 20 the citizens of California. 21 And that's the primary reason for proposing the 22 regulations. 23 I'm about two-thirds of the way along. 24 CHAIRMAN LLOYD: I think we're all pulling for you 25 to get faster. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 201 1 MR. McNERNY: Okay. I'm moving along. 2 Fife Environmental asks more reporting 3 requirements for the districts, we have other ways to gather 4 information about agricultural burning. 5 Actually I think I'm down to the last five 6 letters, so. 7 Crawford Cooley comments that the agricultural 8 community shouldn't be burdened with additional regulations. 9 He brings up other items that have already been discussed. 10 Sacramento Valley Basinwide Air Pollution Control 11 Council chairman, Bill Waite, submits a comment letter with 12 five concerns. Largely fees. He is concerned that the Bay 13 Area District might qualify for an exemption from the 14 allocation system and would be concerned in such an instant 15 that smoke impacts from the Bay Area might hit the 16 Sacramento Valley. 17 We did discuss this with them and note that smoke 18 from tule burning in the Bay Area would not be exempted from 19 the regulations, since that's considered prescribed burning. 20 CHAIRMAN LLOYD: Excuse me. What is tule burning? 21 MR. McNERNY: Tules are these large plants, they 22 grow in the Suisun Bay area. They're similar to cattails. 23 Actually they might be cattails. 24 CHAIRMAN LLOYD: You talk about that -- 25 MR. McNERNY: When they are burn -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 202 1 CHAIRMAN LLOYD: Sorry. I don't want to delay 2 you. 3 MR. McNERNY: They're very smoky when they burn. 4 Another comment from Nicholas Dennis of the 5 Northern California Society of American Foresters bringing 6 up concerns already discussed. 7 And then finally, no, not finally, but close. 8 Simpson Timber Company brings up concerns on the 9 North Coast District and feels that their program is 10 generally successful and they should be exempted from the 11 regulation. 12 Down to the last two. 13 The last one, Forest Preservation Camp, is worried 14 that the regulation will cause less prescribed burning, 15 matters already discussed. 16 And another comment letter from the National Park 17 Service concerned about planning requirements and other 18 matters already discussed. 19 No, that was the first one that I mentioned. 20 Short-term memory. 21 MR. FLETCHER: And last but not least, we have a 22 letter from Gary Owens, who did not testify, and appears to 23 be -- I'm sorry. Gary Evans, who appears to be concerned 24 about the lack of coordination of government agencies, but 25 had no specific recommendations on the regulations. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 203 1 CHAIRMAN LLOYD: Thank you. 2 Any more comments, Mr. Kenny? 3 MR. KENNY: No. 4 CHAIRMAN LLOYD: Thank you. 5 I will now close the record on this agenda item 6 and we'll get to some more discussion here in a minute. 7 However, the record will be reopened when the 8 15-day notice of public availability is issued. Written or 9 oral comments received after this hearing date, but before 10 the 15-day notice is issued, will not be accepted as part of 11 the official record on this agenda item. 12 When the record is reopened for 15-day comment 13 period, the public may submit written comments on proposed 14 changes which will be considered and responded to in the 15 final statement of reasons for the regulation. 16 And also just a reminder to board members of our 17 policy concerning ex parte communications, while we may 18 communicate off the record with outside persons regarding 19 board rulemaking, we must disclose the names of our contacts 20 and the nature of the contacts on the record. This 21 requirement applies specifically to communications which 22 take place after notice of the board hearing has been 23 published. 24 Are there any communications that need to be 25 disclosed at this time? Any board members. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 204 1 BOARD MEMBER D'ADAMO: Mr. Chairman, I just spoke 2 with Manuel Cunha a few minutes ago regarding the NEPA CEQA 3 issue that has been raised and resolved. 4 BOARD MEMBER RIORDAN: Mr. Chairman, yesterday I 5 had a brief phone message from Louise Talley. The 6 conversation reiterated much of what is in her letter, which 7 is part of the record. 8 CHAIRMAN LLOYD: Anyone else? No. 9 I'd like to throw this open then for discussion of 10 the board. 11 Professor Friedman. 12 BOARD MEMBER C.H. FRIEDMAN: I have a question of 13 staff that was raised or triggered by a comment. 14 If you would look with me at section 80102(b), as 15 in boy. 16 BOARD MEMBER RIORDAN: What page is that? 17 BOARD MEMBER C.H. FRIEDMAN: It's on page 94 of 18 the tome. 19 My question is this says that any local or 20 regional authority may establish stricter standards for the 21 control and regulation of agricultural burning including 22 prescribed burning, than those set forth in these 23 guidelines, no local or regional authority may ban 24 agricultural or prescribed burning. 25 Suppose they adopted a rule that is stricter than PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 205 1 our guidelines that said no burning except one minute a 2 year. 3 MS. KRINSK: Then they would run afoul of the 4 state law requirement that agricultural burning be 5 reasonably regulated but not prohibited. I would say that 6 that would be unreasonable, fairly obvious. 7 BOARD MEMBER C.H. FRIEDMAN: This is an attempt to 8 reflect that state law with which I -- 9 MS. KRINSK: Yes. And there's also another 10 provision of state law, section 41508, that indicates that 11 districts may establish more stringent standards than the 12 state board or state law, except as otherwise provided, and 13 this is not one of those exceptions. 14 BOARD MEMBER C.H. FRIEDMAN: As long as -- 15 MS. KRINSK: I'm interpreting both of those 16 provisions to harmonize them both. 17 BOARD MEMBER C.H. FRIEDMAN: It's just that you 18 could have stricter, but you can't ban? 19 MS. KRINSK: That's exactly correct. You can have 20 stricter, but they still have to be reasonable. 21 BOARD MEMBER C.H. FRIEDMAN: Okay. My only other 22 comment, based on all this testimony, which I found very 23 helpful, is once again I see the struggle and the challenge 24 for the staff, which I think you've once again risen to meet 25 marvelously, to find that balance and fine tune it, with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 206 1 still some unknowns, and one of which I think is the issue 2 of exemption that was raised earlier. 3 I would ask if we could consider including in our 4 15-day proposed rule with 15-day modifications, a further 5 directive to the executive officer to work with the 6 districts that are seeking exemption or likely to seek 7 exemption to -- under 80145(b), to develop and recommend 8 back to the board more specific standards or guidelines for 9 such exemption within some period of time, say a year or 10 whatever is reasonable, based on experience. 11 Because I am concerned that the standard is so 12 loose now that it's really not much of a standard except as 13 in the total discretion of any one or more staffers who may 14 be making the decision, and I don't think we ought to leave 15 it that way. 16 MR. KENNY: I think that's appropriate. I think 17 one of the things we can do is that we can try to provide 18 some level of criteria after discussions with the districts 19 that we can then put out for comment during the 15-day 20 notice period. That would at least help, try to address the 21 issue in the short term. At the same time what we could do 22 is we could basically then report back to the board like a 23 year from now -- 24 BOARD MEMBER C.H. FRIEDMAN: If you can achieve 25 that as we discussed as we discussed earlier, then I would PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 207 1 withdraw it. I don't think you need that. We would need 2 it, because you do have in here a proposal that all of the 3 new guidelines are -- the executive officer shall monitor 4 their implementation and report back to the board within one 5 year of the July 1, 2001, implementation. 6 MR. KENNY: What we can do is we can essentially 7 convene those districts who think they wish to take 8 advantage of this particular provision and try to basically 9 sit down with them and craft criteria that would essentially 10 address the specifics. 11 BOARD MEMBER C.H. FRIEDMAN: That would be 12 satisfactory to me. 13 CHAIRMAN LLOYD: Yeah. I think that's important 14 to look at that and explore that. 15 BOARD MEMBER C.H. FRIEDMAN: Thank you. 16 CHAIRMAN LLOYD: Ms. D'Adamo. 17 BOARD MEMBER D'ADAMO: I agree with the resolution 18 of that issue, which I had raised some comments earlier 19 about as well. 20 What I'd like to do is, first of all, ask a 21 question about the report back to the board. I've heard a 22 couple of different dates. I heard a two-year date, I heard 23 a one-year date. What is the time frame? 24 MR. KENNY: Our proposal is to report back to you 25 with one year after the program goes into effect. I think PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 208 1 why you're hearing two years is that the program doesn't at 2 least initially go into effect until September of this year, 3 so that would be the beginning effectiveness day. There are 4 only partial provisions that go into effect then and the 5 rest of the provisions go into effect in 2001. 6 So we would look to be reporting back to you on 7 sort of the implementation of the program one year after 8 that program is in effect, which is probably roughly right 9 around the end of 2001 or very early in 2002. 10 BOARD MEMBER D'ADAMO: I'd be open to suggestions 11 on how to address this, but there were quite a few I think 12 legitimate comments raised about how this is going to be 13 paid for, and I realize that in the staff report that there 14 is a suggestion that there be a task force on funding. I'm 15 suggesting perhaps that we hear back from that task force or 16 that staff report back to us prior to implementation of the 17 act so that we could hear about what the progress is at the 18 federal level and state level on efforts to seek funding to 19 lower the costs. 20 MR. KENNY: We're happy to do that. In terms of a 21 time frame, what would be the board's pleasure? 22 BOARD MEMBER D'ADAMO: Open to your suggestion. 23 MR. KENNY: The initial parts of the program go 24 into effect on September 1st and so if we were gong to try 25 to report back to the board before any of the program went PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 209 1 into effect, we would have to essentially beat that date. 2 That is very short. 3 BOARD MEMBER RIORDAN: How about prior to the July 4 date when it all goes into effect? 5 MR. KENNY: We could probably do that. 6 MR. FLETCHER: Mr. Kenny, if I could interrupt, it 7 is a little bit confusing because we have indicated in the 8 presentation that we're planning on reporting back to you on 9 several occasions on several different issues. 10 One of the things we committed to come back to was 11 by August 1st of next year of 2001 on metrological criteria, 12 which would be a regulatory item. 13 We've also indicated we would come back within a 14 year to report on our progress in smoke management plans 15 developing uniform smoke management plans. 16 So I would suggest that we would add fees in 17 within that one-year time frame and what we would hope to do 18 would be to come back by August 2001, which is approximately 19 15 months or so, to report back on the uniform smoke 20 management plans, come back with a regulatory proposal for 21 the revised metrological criteria and also address fees as 22 well. 23 BOARD MEMBER D'ADAMO: That wouldn't be prior to 24 the implementation of the program. 25 MR. FLETCHER: Well, the full implementation of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 210 1 the program will not -- it begins July 1st of 2001. And we 2 would want about a year for it to go into effect to see how 3 it's actually working, because there will be impacts, there 4 may be impacts in terms how the fee structure works. So I 5 think the September 1st date is basically the implementation 6 date for the prescribed burning elements of the regulation, 7 and what we're -- much of that we think will be implemented 8 under existing permits and requirements, so it's sort of in 9 some respects it's an interim date, but the full program 10 implementation is July 1st of 2001. 11 MR. KENNY: If I could add one thing to that, 12 there are various ways of reporting to the board and one 13 thing we could do is essentially keep the board at least 14 initially apprised on a regular basis essentially through 15 written communications. 16 We could provide reports to you on fairly regular 17 basis on essentially almost quarterly on what we're trying 18 to do to make this work and then we would have more of the 19 formal board hearing next year and if in fact the board has 20 some desire to have it sooner we could then basically pull 21 it forward. 22 BOARD MEMBER RIORDAN: Mr. Chairman, I think that 23 would do what I would like and that is if you would at least 24 keep us abreast, because I can see some potential problems 25 for our constituents who are going to have fees perhaps PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 211 1 levied against them, that we ought to know prior to that 2 time what those fees are, maybe a little bit of the 3 background, how it is being handled and what our hopes are 4 for any additional monies that might be used in that 5 preparation. That way I think we can better answer at the 6 local district level when we get the concerns. 7 So I think a continual update is a very wise one. 8 Ideally, you know, we'd like to hear obviously before it all 9 happens, I think. 10 CHAIRMAN LLOYD: Another thing I would also like 11 to suggest, I'm a little bit disturbed as we heard a few 12 people say they didn't feel staff had a good idea of what 13 they're doing, so maybe if we could encourage staff to get 14 out, if you like, into the regions so firsthand see how 15 things are working, how they're not working, you know, how a 16 regulation may impact on that. That needn't go into the 17 resolution, that was just a request for maybe some staff 18 education and getting out, I guess, into some of the 19 districts. 20 BOARD MEMBER D'ADAMO: Just one other thought as 21 well if you could also include the progress of the task 22 force and the efforts underway. 23 This really wasn't raised much today in terms of 24 the concern, most of the comments that we received were 25 positive in nature of the removal of the language regarding PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 212 1 residential burning. I'm just wondering if we could also 2 hear back along the time frames after the program is 3 implemented to hear about the progress that the local 4 districts have made on that issue. 5 MR. KENNY: We'd be happy to report back to you on 6 that. Our plan is essentially to work with the local 7 districts to try to address that issue. 8 BOARD MEMBER C.H. FRIEDMAN: That's in the 9 resolution within one year. It's one year, I suppose of -- 10 MR. KENNY: It would be approximately the August 11 time frame. 12 CHAIRMAN LLOYD: Mr. McKinnon. 13 BOARD MEMBER McKINNON: First, just kind of a 14 thank you. At the very beginning of the presentation 15 Mr. Westerdahl from the Research Division included in his 16 health effects analysis the health effects of the workers 17 involved, and when that comes up on this board I'm always 18 going to tell you I appreciate that. I really do appreciate 19 that. 20 Something that came up time and time again, I 21 think, is that there are folks and interests in the state 22 that would like us to prioritize their burning and I'm sure 23 we could set one priority or the other, and there would be 24 some people that would leave happy and there would be many 25 more that would leave unhappy. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 213 1 But that's not really the point. I think the 2 point and what's good about what you proposed here is that 3 locally those kinds of decisions can be made, because you 4 can't do a template for the whole state. There are places 5 where prescribed burning that protects homes is more 6 important, there are places where native vegetation is more 7 important, there are places where private timber interests 8 are important, there are places where public timber 9 interests are important. 10 So and I'm sure I left out a large part of the ag 11 community, other economic interests, but those priorities, I 12 think, should fairly be set locally, given local conditions. 13 However, there ought to be some way, and I think 14 we talked about coming back at this, it seems to me that to 15 the extent there are problems with that, then I imagine we 16 end up getting back into it down the road. 17 And one of the things I was going to suggest for 18 consideration, I don't think it should be in the resolution, 19 I think it should just be kind of out on the table, was kind 20 of an interesting notion proposed by both the 21 conservationists and I believe one of the folks involved in 22 the timber industry, and both of them said there should be 23 some priority. I may have goofed up who said what, really. 24 But there should be some priority to those folks that remove 25 biomass from the burning equation before it gets to burning. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 214 1 In other words, are there people that pulled 2 burning out, that eliminate burning with alternatives, 3 should they get priorities. 4 And I think that's an interesting concept. I 5 don't know if we want to incentivize it in a priorities 6 process or some other way. 7 But that was something that I found interesting 8 and certainly if it comes back to us I might find real 9 interesting. 10 So thanks. 11 CHAIRMAN LLOYD: Thank you. 12 Any other comments from board members? 13 Supervisor DeSaulnier. 14 BOARD MEMBER DeSAULNIER: Thanks, Allen. 15 Just briefly on the exemption, I think, Mike, the 16 sooner the board can get an example of the language 17 clarifying it, the better. 18 In the future if you want to use an air district 19 as an example, could you choose another one besides the Bay 20 Area? San Diego would do. 21 CHAIRMAN LLOYD: I think it might have been lost 22 on Peter. I'm not sure whether he was listening. 23 Anybody want to -- 24 BOARD MEMBER C.H. FRIEDMAN: In view of the 25 lengthy agenda yet ahead, if it's appropriate and in order, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 215 1 at this time I'll make a motion that we adopt and approve 2 the resolution. 3 BOARD MEMBER D'ADAMO: Second. 4 CHAIRMAN LLOYD: All in favor say aye. 5 (Ayes.) 6 CHAIRMAN LLOYD: Any negatives? 7 (No response.) 8 CHAIRMAN LLOYD: Thank you. 9 Passed unanimously. 10 We're going to take a five-minute break, and it's 11 just going to be a five-minute break, so, what, five-to by 12 that clock. And we'll be finished with the next item by 13 5:30, so we can ask the next witnesses to move along at a 14 fair clip. 15 (Thereupon a short recess was taken.) 16 CHAIRMAN LLOYD: We'll get going on the next 17 agenda item, No. 00-3-2, public hearing to consider enhanced 18 vapor recovery regulations. 19 And there's no doubt in my mind that this is one 20 of the most difficult regulations staff has ever worked on, 21 but at the same time it was absolutely necessary. 22 There is a wide recognition that our current 23 system is not working, but we will be unconscionable not to 24 do something about that and to do it now, as painful as that 25 may be. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 216 1 I personally think we can do the entire vapor 2 recovery program better and the staff is on the right track, 3 but I look forward to hearing any additional information 4 from all of you who have signed up to testify on this item, 5 as the board considers the regulation before us today. 6 With those opening remarks, Mr. Kenny, will you 7 please start the staff presentation. 8 MR. KENNY: Thank you, Chairman Lloyd and members 9 of the board. 10 The proposed amendments will meet two primary 11 goals of enhanced vapor recovery, to improve effectiveness 12 of in-use systems and achieve additional emission 13 reductions. 14 Recent field investigations conducted jointly by 15 ARB and district staff show that current systems have a 16 variety of defects. ARB staff are working with districts 17 now to address these deficiencies in the short term, but 18 today's proposal will change the certification process to 19 help ensure only durable and reliable equipment is certified 20 for the future. 21 Thus, enhanced vapor recovery is really a 22 two-pronged approach where the proposed amendments address 23 longer term improvements, while staff continues to work with 24 districts and industry to make existing systems operate more 25 effectively. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 217 1 The revised procedures we propose for adoption 2 today represent the work of the ARB staff to certify and 3 test vapor recovery systems, as well as the efforts of many 4 other groups, including the businesses which manufacture 5 such systems, the companies that buy and use these systems 6 and the local districts which have primary authority for 7 permitting the operation of and enforcing the performance 8 requirements for vapor recovery systems. 9 This proposal recommends amendments to 10 certification and test procedures pertaining to vapor 11 recovery systems found at service stations. These are the 12 most significant amendments since the 1970s in this 13 particular category. 14 We are proposing new standards and increasing the 15 stringency of existing standards. Our goal is to achieve 16 emissions reductions committed to in the ozone SIP 17 settlement agreement, as well as additional emission 18 reductions to benefit air quality. 19 The proposal includes new in-station diagnostics 20 requirements to provide real-time assessment of vapor 21 recovery system operations, similar in concept to the 22 on-board diagnostic systems that are on cars. 23 The revisions will also improve the certification 24 process and reliability of certified systems. 25 Staff has also taken this opportunity to make PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 218 1 several modifications and clarifications to the existing 2 test procedures to improve testing measurements. 3 And at this time I'd like to turn the presentation 4 over to Cindy Castronovo, who will make that presentation. 5 Cindy. 6 MS. CASTRONOVO: Good afternoon, Chairman Lloyd 7 and members of the board. 8 Today I will present proposed revisions to the ARB 9 vapor recovery certification and test procedures. 10 Vapor recovery is an important program for the 11 control of reactive organic gas emissions. This chart 12 compares the emission reductions in tons per day for the 13 South Coast Air Basin for three major emission control 14 strategies. As shown here, the emissions reductions 15 attributable to vapor recovery are estimated at 108 tons per 16 day, more than the reductions for low emission vehicles and 17 cleaner burning gasoline. 18 Unfortunately, we are not achieving all of these 19 emissions reductions. Recent field inspection show that 20 installed systems throughout the state do not perform as 21 well as we assume in the emission inventory. 22 Enhanced vapor recovery describes efforts ARB is 23 taking and will be taking to improve the performance of 24 service station vapor recovery equipment and achieve 25 additional emissions reductions. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 219 1 The need to improve existing systems was 2 identified during recent joint district ARB inspections. We 3 are working with the districts now to address deficiencies 4 documented during the inspections, but changes in the 5 certification program will go even further in improving 6 equipment reliability and durability as well as obtain 7 additional emission reductions. 8 Thus, enhanced vapor recovery includes both the 9 current activities underway to improve existing vapor 10 recovery systems, as well as the proposed regulation changes 11 before you today to improve the systems of the future. 12 You may hear testimony today that argues for 13 delaying new vapor recovery measures until we have addressed 14 deficiencies in existing systems, but ARB and district staff 15 have identified new sources of gasoline vapor emissions that 16 are not controlled by existing regulations. These emissions 17 reductions are needed by many districts to protect public 18 health and attain federal and state air quality standards. 19 Thus, we need to both fix existing systems and 20 address these new emission categories. Just fixing existing 21 systems isn't good enough. Besides, new emission reductions 22 from the vapor recovery program are required by the ozone 23 SIP settlement agreement. 24 The EVR proposal will fulfill our obligation for 25 the SIP settlement while providing emission reductions PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 220 1 estimated at 25 tons per day statewide. 2 Here's a partial list of what we're doing now to 3 improve existing vapor recovery systems. These efforts will 4 result in emission reductions by this year's ozone season. 5 ARB staff are inspecting parts houses throughout 6 the state to find out if equipment being sold meets current 7 specifications. 8 We are issuing notices of violation to the 9 manufacturers when faulty brand new equipment is found. Two 10 of the manufacturers have acknowledged problems with their 11 vent values and have issued recall notices. One has 12 committed to replacing valves already installed, with no 13 cost to the operator. 14 At the districts' request, we are facilitating the 15 distribution of vapor recovery system installation operation 16 and maintenance manuals to all service stations to help the 17 operator keep their system in compliance. 18 And we continue to address the system deficiencies 19 which surfaced during the 1999 joint inspections, including 20 possible decertification of problem components. 21 For example, the seven manufacturers of 22 spring-actuated drain values are redesigning their product 23 or proposing alternative solutions after being warned that 24 the drain valves may be decertified. 25 ARB and district staff have cooperated to develop PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 221 1 several simple inspection techniques to identify equipment 2 defects, such as the bag test shown in this video to 3 identify leaks in nozzles. 4 In this case, the underground vapor space was at a 5 positive pressure and the filling of the bag shows how vapor 6 is leaking out the nozzle. 7 ARB counsel, working cooperatively with district 8 legal staff, recently provided legal opinion which allows 9 use of these tools for enforcement purposes. 10 That's just a few of the short-term vapor recovery 11 activities. 12 Now we'll focus on the proposed amendments, which 13 will improve the efficiency, reliability and durability of 14 systems to achieve significant additional emission 15 reductions, which are the proposed amendments to the vapor 16 recovery regulations. 17 The revisions to the vapor recovery procedures are 18 divided into six EVR modules which represent new 19 requirements for vapor recovery systems. 20 In addition, there have been many changes proposed 21 to the certification procedures. 22 In the next several slides we will discuss the 23 proposed changes associated with each module. In some cases 24 we are proposing changes to the original proposal in 25 response to comments we have received and I will note these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 222 1 changes as we go along. 2 Today's proposal affects two types of gasoline 3 transfer which take place at service stations, which are 4 characterized as Phase 1 and Phase 2. 5 As shown by this video, Phase 1 vapor recovery 6 returns vapors from the service station underground storage 7 tank to the cargo tank truck and eventually to the terminal 8 vapor control system. 9 Phase 2 vapor recovery routes the vapors displaced 10 from fueling vehicles back into the underground storage 11 tank. 12 Phase 1 and Phase 2 equipment have separate 13 certification procedures and must meet specified vapor 14 recovery standards. 15 We propose to increase the Phase 1 control 16 efficiency standard from 95 percent to 98 percent to achieve 17 additional emission reductions. 98 percent efficiency is 18 achievable as demonstrated by tests where the system is leak 19 tight and a pressure vacuum valve is on the vent. 20 Some existing systems were certified at 95 percent 21 without a vent valve. 22 Additional equipment standards for Phase 1 23 components will minimize leaks. These include rotatable 24 Phase 1 fittings and better vent valves. Vent valves are 25 installed 12 feet above grade and must reliably hold PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 223 1 transient pressures and vacuums without leaking. 2 The swivel design for Phase 1 fittings illustrated 3 here allows delivery hoses to be handled more easily without 4 causing leaks. 5 Drain valves and spill buckets are a common way to 6 meet Water Board spill control requirements, but can be a 7 source of vapor leaks, especially certain designs which leak 8 when they become dirty or as shown here don't even open to 9 remove standing gasoline. 10 Staff has proposed leak limits for these drain 11 valves. 12 Another option is for any spilled gasoline to be 13 removed with a hand pump. 14 Whichever option is used, we propose that gasoline 15 be removed immediately and not allowed to sit in the spill 16 bucket. 17 In module 2 we have completely overhauled the 18 standards and specifications for Phase 2 vapor recovery 19 systems which control emissions during vehicle refueling. 20 The next few slides cover the most significant changes. 21 First let's take a moment to describe the two main 22 types of Phase 2 systems. 23 You can usually recognize the Phase 2 system type 24 by looking at the nozzle. The balance nozzle shown at the 25 top of this slide has an accordion type boot which must make PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 224 1 a good seal with a vehicle fuel pipe to ensure vapors are 2 recovered. After the seal is made, the vapors are pushed 3 back to the underground storage tank as the liquid gasoline 4 displaces the vapors in the vehicle tank. 5 Assist system nozzles, in contrast, are often 6 bootless. The vapors are collected through a series of 7 holes on the spout which vacuum up the vapors during 8 refueling. Examples of balance and bootless nozzles are 9 displayed at the table behind you. 10 Nozzles are one component of what we refer to as 11 hanging hardware, which consists of the nozzles, hoses and 12 other equipment that hangs on the gasoline dispenser. 13 The EVR proposal contains new requirements that 14 are applicable to all Phase 2 systems, some that pertain 15 only to balance and others that apply only to assist systems 16 because of the different mechanisms these systems use to 17 collect vapors. 18 During certification, measurements are taken of 19 the vapor recovered shown at the orange test point 2 and the 20 vapor emitted during refueling, test points 1, 3 and 4 in 21 yellow, in order to calculate the efficiency of the Phase 2 22 system. 23 However, the current measurement procedure does 24 not include fugitive emissions due to small leaks in the 25 vapor space, shown at test point 5. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 225 1 The fugitive emissions increase as the pressure in 2 the underground storage tank increases. Currently, there 3 are systems certified which maximize collection at the 4 nozzle vehicle interface by drawing in a larger volume of 5 vapor than gasoline dispensed. Unfortunately, this air 6 ingestion leads to vapor growth, which increases pressures 7 in the underground storage tank to produce fugitive 8 emissions. 9 We have a new test method to quantify these 10 fugitive emissions and propose to include measurement of 11 fugitives for all future certification tests. 12 Fugitive emissions will also be reduced by 13 limiting underground storage tank pressures. A rolling 14 30-day average of the daily average pressure and the daily 15 high pressure would need to meet the limits shown. If the 16 system remained at atmospheric pressure for long periods of 17 time, this would result in a flat pressure trace and 18 indicate a leak in the system. 19 For this reason, time periods associated with 20 Phase 1 gasoline deliveries, which can cause pressure 21 spikes, would be excluded so that Phase 1 operations do not 22 provide false assurance that the system is leak tight. 23 So can existing systems meet these pressure 24 limits? We instrumented a high-throughput station in 25 downtown Sacramento to find out. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 226 1 This data shows that initially the station 2 operated as positive pressure, shown in red, most of the 3 time. Remember that positive pressure leads to fugitive 4 emissions. 5 When we conducted a pressure integrity or leak 6 test at this station we discovered problems with leaking 7 drop tubes. The drop tubes were replaced and the station 8 passed the leak test. 9 Here's data for the same station after fixing the 10 leaks. Now the graphs shows the station operating at 11 negative pressure, shown in green, almost all of the time. 12 The data show that an existing balance station can meet the 13 proposed limits as long as the pressure integrity criteria 14 are met, even when using higher volatility winter gasoline. 15 Assist systems with processors when operating 16 properly can also meet these limits now. You may notice 17 that there is still some positive pressure spikes that are 18 associated with gasoline deliveries. In fact, this pressure 19 data can alert the operator when an improper delivery 20 resulting in excess emissions occurs. This is another 21 reason why we are proposing pressure monitoring for all 22 service stations. 23 And more on this when we get to in-station 24 diagnostics. 25 Let's get back to the proposed Phase 2 amendments. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 227 1 The primary certification criterion is vapor 2 collection efficiency. The districts desire an emission 3 limit in place of an efficiency to better quantify the 4 emissions. Our original proposal was to replace the 95 5 percent efficiency requirement with an emission limit of 6 0.38 pounds per thousand gallons, which is an equivalent 7 standard using the summer uncontrolled emission factor of 8 7.6 pounds per thousand gallons. 9 However, the .38 emission limit is a more 10 stringent requirement when testing using higher volatility 11 winter fuels. 12 Our amended proposal will require certification 13 testing conducted using summer fuel to meet both the 0.38 14 and 95 percent requirements, but allow either the 0.38 or 15 the 95 percent to be met when testing with winter fuel. It 16 is not our intent to certify systems to both summer and 17 winter fuel, but to allow testing year-round without 18 penalty. This change removes the higher hurdle that 19 manufacturers seeking certification during the winter months 20 would face under the original proposal. 21 Other Phase 2 system improvements include maximum 22 pressure drop specifications for balance system components. 23 These new limits ensure that the overall pressure drop for 24 the entire vapor path from the nozzle back to the 25 underground tank will be met through a variety of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 228 1 combinations of balance system components. This resolves a 2 current problem where certain combinations of certified 3 components can fail the total pressure drop limit. 4 We propose lower leak requirements for vapor check 5 valves, which keep the vapor in the vapor recovery line at 6 each dispensing point from being emitted to atmosphere when 7 not in use. 8 The uni-hose dispenser requirement will replace 9 the current six-pack configuration on the right with a 10 single nozzle for all grades as shown on the left. Reducing 11 the number of nozzles and hoses by two-thirds will reduce 12 leaks from this equipment. 13 Based on concerns regarding cost of retrofitting 14 existing dispensers to uni-hose, we have modified our 15 original proposal to make the uni-hose a requirement for new 16 systems only or when dispensers are replaced. 17 Vapor recovery processors are used on some systems 18 to eliminate overflow vapors from the underground tank vapor 19 space. Processors are receiving new attention as a way to 20 reduce or eliminate pressure related fugitive emissions. 21 Two types of incinerator processor systems are 22 already in use, nondestructive processors, which recover 23 vapors such as membranes are being developed. 24 EVR will require that systems with processors 25 restrict certain operating parameters to minimize emissions PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 229 1 in the event of processor failures. 2 The proposed maximum hydrocarbon rate in the 3 emissions caps shown here have been changed from our 4 original proposal after discussions with processor system 5 manufacturers. The proposed caps for possible toxic air 6 pollutants have also been updated and are intended to ensure 7 the processor does not add significant incremental risk to 8 the overall station risk profile. 9 State law directs certification of vapor recovery 10 systems, not system components. However, this can impose a 11 testing burden for component manufacturers if a full set of 12 certification tests are required for each system for which 13 the component may be used. 14 Certain components have been defined as non-system 15 specific and have been found to perform satisfactorily with 16 one system will be considered for certification on other 17 systems without having to undergo another full test. 18 Examples of non-system specific components are hoses, 19 connectors, drop tubes and vent values. 20 We propose to add balance dispenser vapor lines to 21 this list, as requested in a comment letter. 22 We have also identified system-specific components 23 to alert applicants that full testing is required for these 24 components, even if the component has already been certified 25 in another system. These include nozzles, vacuum sources, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 230 1 processors and control boards. 2 Now I'd like to discuss a relatively new way of 3 controlling refueling vapors, on-board refueling vapor 4 recovery, or ORVR, provides for collection of the refueling 5 vapors on a carbon canister on the vehicle. In 1995 the 6 board decided not to seek a waiver from the federal ORVR 7 program, although California already led the nation in Phase 8 2 vapor recovery implementation, in order to promote a 9 consistent vehicle design for all 50 states and reduce the 10 testing burden for vehicle manufacturers. 11 We want to make sure that vehicles equipped with 12 ORVR will work with Phase 2 systems. Field tests show an 13 increase in overall emissions for some vacuum-assist vapor 14 recovery systems when fueling an ORVR vehicle. 15 Remember that assist systems have an active pump 16 to pull in vapors during fueling. If the vehicle is 17 collecting the vapors, the Phase 2 vapor pump will draw air 18 into the underground tank. Gasoline will evaporate into the 19 air, leading to vapor volumes exceeding the capacity of the 20 storage tank. This will result in excess emissions at the 21 vent. 22 ORVR is being phased in over the next several 23 years. This slide shows the implementation of ORVR 24 light-duty and medium-duty vehicles. For example, 80 25 percent of the 1999 passenger vehicles models were required PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 231 1 to be equipped with ORVR. 2 Using historical vehicle turnover rates, we can 3 estimate the penetration of ORVR vehicles in the California 4 fleet over the next several years. This chart indicates 5 that in 2010 about 66 percent of gasoline throughput will be 6 dispensed to ORVR vehicles. If ORVR compatibility is not 7 achieved, we expect excess emissions of 6.3 tons per day 8 statewide in 2010. If all Phase 2 systems are made ORVR 9 compatible by 2005, as specified by our current proposal, 10 this will prevent 3.4 tons per day of excess emissions 11 statewide from occurring in 2005. 12 To be considered ORVR compatible, the Phase 2 13 system must demonstrate that there are no excess emissions 14 when fueling ORVR vehicles. In other words, Phase 2 systems 15 must meet the same efficiency or emission limit that I 16 discussed previously. 17 Based on the wide variety of Phase 2 system types, 18 there is no test procedure that demonstration tests would be 19 proposed by the Phase 2 system applicant. Field tests show 20 that certain ORVR designs are already compatible with Phase 21 2 systems. ORVR vehicles with mechanical seals allow vapors 22 to be returned to the underground storage tank instead of 23 air. 24 At the request of the petroleum marketers, we 25 considered requiring all vehicle ORVR systems to use PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 232 1 mechanical seals. However, we found that mechanical seal 2 cost effectiveness of $31 per pound is much poorer than the 3 cost effectiveness of making Phase 2 systems compatible with 4 all types of ORVR vehicles. 5 Module 4 will reduce emissions from liquid 6 gasoline evaporation from nozzles. Liquid retention 7 emissions occur when gasoline retained in the nozzle and 8 other hanging hardware evaporates between vehicle fuelings. 9 These emissions are currently uncontrolled. We expect that 10 redesign of the nozzles will be necessary to reduce these 11 emissions and propose a phase-in of liquid retention limits 12 with the first limit achievable by some currently available 13 nozzles. 14 Have you ever had a nozzle spit at you as you put 15 the nozzle in your car? Another new standard addresses 16 spitting from nozzles that can occur if the nozzle latch is 17 squeezed before activating the dispenser, as illustrated 18 here. 19 As shown in this video, spitting can be 20 considerable. This one was about 50 milliliters. 21 Staff propose that such spitting be limited to one 22 milliliter per nozzle. This standard will minimize 23 accidental liquid gasoline releases which can occur while 24 moving the nozzle from the dispenser to the vehicle before 25 fueling. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 233 1 As careful as we are, many of us still experience 2 spillage of gasoline during a vehicle fueling. EVR module 3 five seeks additional emission reduction by proposing more 4 stringent standards for spillage. 5 A 1989 spillage study by ARB staff led to our 6 current limit of 0.42 pounds per thousand gallons dispensed. 7 If we are able to eliminate the spillage before and after 8 fueling, we can reduce the spillage to 0.24 pounds per 9 thousand gallons according to our survey data. 10 Recent federal requirements for late model 11 vehicles will also help reduce spillage. 12 In 1996, US EPA adopted a one milliliter refueling 13 standard for new vehicles. The federal limit corresponds to 14 about 0.22 pounds per thousand gallons. 15 Another new standard would limit the drips from 16 nozzles following a vehicle fueling. These drips may seem 17 insignificant, but if each fueling event led to one drip, we 18 estimate resulting emissions to be around a tenth of a ton 19 per day. 20 Staff is proposing a one-drip limit as defined by 21 the new test procedure, TP-201.2D. Ideally, we would like 22 zero emissions due to spillage, but because the customer can 23 directly cause spillage through improper fueling procedures, 24 such as topping off, we do not think we can completely 25 eliminate fueling spillage. We expect that redesign of the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 234 1 nozzle to meet the dripless nozzle criteria will bring the 2 spillage emissions down even further. 3 The sixth EVR module contains new requirements for 4 in-station diagnostics. Currently, inspections and field 5 tests are necessary to ensure installed systems are 6 operating correctly. Even if a district requires annual 7 testing, many defects in the vapor recovery system do not 8 interfere with gasoline dispensing and thus a failure may 9 not be noted until the next test, thus excess emissions can 10 occur for months before corrective action is taken. 11 The goal of in-station diagnostics is to provide 12 continuous monitoring of emission-related parameters and 13 alert the station operator when a failure mode is detected, 14 so that corrective action can be taken. 15 It is similar in concept to the ARB on-board 16 diagnostics for motor vehicles. 17 Many service stations already have a diagnostics 18 system to detect liquid leaks from underground storage 19 tanks. 20 In our meetings with monitoring equipment vendors, 21 we encouraged integration of vapor recovery diagnostics with 22 existing liquid leak detection systems wherever possible. 23 We've identified several failure modes in vapor 24 recovery systems which cause excess emissions and are 25 minimal to in-station diagnostics. All systems are proposed PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 235 1 to have pressure monitors to verify pressure integrity, 2 i.e., no leaks, and ensure that the storage tank pressure 3 limits described earlier are met. 4 Balance systems which depend on a clear vapor path 5 from the nozzle to the underground storage tank for proper 6 operation would need a monitor to detect any blockage in the 7 vapor line. 8 Assist system pumps would be continuously 9 monitored and where the vapor pump was not operating, 10 fueling would be shut down at that dispenser. 11 Assist systems with processors which are already 12 subject to some monitoring requirements will need to monitor 13 processor operation and prohibit dispensing if critical 14 components fail. 15 I mentioned that liquid leak detection systems are 16 already in place in many service situations to meet water 17 quality regulations. However, there are also vapor recovery 18 monitoring systems in use today. 19 The system shown here is currently installed in 20 many Mexico City stations to meet vapor recovery 21 regulations. This is a relatively simple system that alerts 22 the operator if the system does not operate within 23 prescribed pressure intervals. If corrective action is not 24 taken within a specified time, dispensing is shut down. 25 We propose more stringent certification PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 236 1 requirements to address reliability and durability issues. 2 Much more information will be required in the certification 3 application, including complete installation, operation, 4 maintenance manuals and test data indicating that the system 5 will meet certification standards. 6 The applicant must also submit a plan for training 7 contractors in the proper installation of their system. 8 Once the application is acceptable, the system may 9 be installed in an operating service station for evaluation. 10 The operational test has been increased from a 11 minimum of 90 days to a minimum of 180 days, and the vehicle 12 test matrix has been doubled as well, from 100 to 200 cars. 13 We will work closely with the districts to receive 14 timely input through the application and testing periods and 15 will continue to provide the draft executive orders for 16 district comment. 17 All of these changes to the certification process 18 are designed to provide more reliable and durable vapor 19 recovery equipment. 20 In June of 1999 the board approved changes to 21 require a tag for vapor recovery equipment with warranty 22 information. We propose adding two more items to the tag, a 23 statement that the equipment was factory tested and a list 24 of all applicable performance standards and specifications 25 for which testing occurred. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 237 1 These performance standards are expected to be 2 able to be met throughout the warranty period. 3 Because of the new requirement for ongoing 4 compliance with performance standards and specifications 5 throughout the warranty period, we have also provided that 6 system manufacturers may specify that their warranty is 7 contingent upon the use of trained installers. Thus, if a 8 service station operator chooses not to use a contractor who 9 has been trained by the system manufacturer, this could void 10 the warranty. 11 Currently, certifications for existing systems 12 have no expiration date, thus there are outdated designs 13 certified over 20 years ago which may still be purchased and 14 installed even if no longer supported by the manufacturer. 15 At the request of the districts, we propose a 16 four-year limit on future certifications. 17 After four years, the certification would be 18 automatically renewed, if there are no documented 19 deficiencies with the system or any component of the system. 20 If at any time serious deficiencies are 21 documented, we will pursue decertification of the system. 22 If the deficiencies are minor and do not cause 23 excess emissions, we will work with the system manufacturer 24 to fix the problem before a new certification would be 25 issued. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 238 1 This process allows timely correction of both 2 serious and minor system problems. 3 Installed systems affected by certification 4 expiration could be used for the remainder of their useful 5 life or four years, whichever is shorter. 6 We propose to add five new test procedures which 7 support new standards for Phase 1 and Phase 2 systems as 8 listed here. We also propose revisions to nine existing 9 test procedures to improve test measurements. 10 We recommend repeal of existing testing procedure 11 TP-201.3A, which describes the five-inch pressure decay test 12 for the underground vapor space. This test procedure is no 13 longer in use. 14 This completes our summary of the enhanced vapor 15 recovery proposal. 16 Now I'd like to talk about how this proposal, if 17 adopted, would be implemented. 18 Our implementation options are limited due to 19 state law. For example, we could require compliance for a 20 new motor vehicle requirement to begin in a future model 21 year with no effect on the current vehicle fleet. This 22 application of new standards only to new systems is not 23 allowable for vapor recovery. State law essentially 24 decertifies all existing systems upon the effective date of 25 the revised standard. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 239 1 However, state law does provide that systems 2 installed prior to the effective date may continue to be 3 used for four years. This is referred to as the four-year 4 clock. 5 Using the proposed effective date of April 2001, 6 existing systems could continue to operate until April 2005. 7 Any replacement parts used during this four-year 8 period, however, must be certified. 9 This grandfather period does not apply to new 10 installations of vapor recovery equipment. This means that 11 a service station built after April 2001 would need to meet 12 all the EVR requirements in effect at that time. 13 Because of the technology nature of some of the 14 EVR modules, we have proposed operative dates inside the 15 four-year clock to allow time for further development. 16 And I'll be discussing the implementation later on 17 in the presentation. 18 Our discussions with vapor recovery equipment 19 manufacturers indicate that the new EVR standards will be 20 achievable in the time provided by the later operative 21 dates. In fact, we expect manufacturers to attempt to 22 certify early to these later requirements, if possible, to 23 avoid multiple rounds of certification testing. 24 To ensure that these standards will be met, we 25 propose a technology review in 2002 to evaluate the success, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 240 1 cost and certification status of all the proposed standards 2 and specifications, in particular the liquid retention, 3 dripless nozzle and in-station diagnostic standards. 4 The results of the technology review would be 5 presented at a public workshop and shall be reported to the 6 board. 7 Now I'll focus on the expected environmental and 8 economic impacts of EVR proposal. 9 First I'll show how this proposal meets the 10 commitment of the ozone SIP settlement agreement. 11 Next I'll describe the expected emission 12 reductions in terms of the most current emission data. 13 Then I'll discuss the results of our economic 14 analysis. 15 The SIP agreement calls for 14 tons per day of VOC 16 emission reductions from measures adopted this year in terms 17 of 1994 SIP currency. The agreement expects that five to 18 ten tons per day could be achieved through vapor recovery 19 measures. The agreement also requires that the measures 20 adopted be implemented by 2004. 21 We are pleased to report that the EVR proposal 22 will fulfill the vapor recovery commitment in the settlement 23 agreement. 24 This table provides estimates for each of the EVR 25 modules in terms of 2010 reactive organic gas emissions in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 241 1 both the South Coast Air Basin and statewide. 2 These numbers are calculated using an uncontrolled 3 emission factor of 7.6 pounds per thousand gallons, which is 4 based on gasoline meeting current summer fuel requirements. 5 Using best available data, we calculate that EVR 6 will reduce emissions by about 25 tons per day statewide in 7 2010 emissions. This is the equivalent to the reactive 8 organic gas emissions from 1.7 million vehicles. 9 An extensive economic impact analysis shows that 10 even assuming complete replacement of all the vapor recovery 11 equipment due to this measure, the calculated cost 12 effectiveness of a $1.80 per pound is comparable to other 13 recent reactive organic gas control measures. Costs are 14 actually expected to be less than this figure, as we have 15 learned that retrofit and normal replacement of hanging 16 hardware will result in lower overall implementation costs. 17 If the costs were all passed on to the consumer, 18 we would expect the price of gasoline to rise about 19 one-quarter of a cent per gallon. This results in about a 20 $1.50 a year increase for the typical consumer. 21 We have held nine workshops and numerous meetings 22 with parties affected by the EVR proposal. 23 We've sought input from districts, including two 24 CAPCOA committees, the Vapor Recovery Committee and the 25 Enforcement Managers' Committee. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 242 1 We are working with staff at the Water Resources 2 Control Board to ensure the proposal integrates with their 3 current and expected new regulations for service stations. 4 We have met individually with many vapor recovery 5 equipment manufacturers to help assess feasibility of the 6 new standards, which resulted in the later operative dates 7 for some new requirements. 8 We met several times with petroleum marketers who 9 purchase vapor recovery equipment and who receive the 10 violation notices when the equipment fails. 11 We fielded calls from other states which use 12 California certification program, and communicated over the 13 last two years with various stakeholders via the EVR Web 14 page. 15 We also contributed articles to trade journals and 16 attended trade shows to view the state-of-the-art vapor 17 recovery equipment and present our proposal. 18 We greatly appreciate the input we received during 19 our meetings and workshops with stakeholders. We have 20 incorporated several of the suggestions in the EVR proposal 21 issued February 4th. We are proposing amendments to the 22 original proposal to address the key issues noted here. 23 In the next few slides I'll discuss each of these 24 issues and our response. 25 As I explained before, a change in a vapor PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 243 1 recovery standard will trigger decertification of existing 2 systems. California law provides that existing installed 3 systems could be used for four years, but other states that 4 use California certification as a basis of their vapor 5 recovery program may not have the grandfather provision. 6 We have proposed language in the certification 7 procedure that should allow extension of the four-year clock 8 to other states, and will also add language in the 9 certification executive orders. 10 We are scheduling a meeting with other state 11 representatives this summer to facilitate EVR implementation 12 outside California. 13 The Western States Petroleum Association has 14 suggested an alternative proposal that would achieve 15 emission benefits sooner than EVR proposal, and would allow 16 service stations more time to use their existing equipment. 17 The districts are interested in getting emission 18 reductions before the next ozone season where possible. We 19 have amended our implementation dates to address this 20 compromise and will work with the districts and WSPA to help 21 to find a mechanism to assure this commitment is fulfilled. 22 Many stakeholders are concerned that the proposed 23 April 2001 effective date will not allow time to recertify 24 systems to meet the new requirement. 25 This would allow only a year for equipment PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 244 1 manufacturers to collect test data, locate and install their 2 equipment at a test station, evaluate the system in use for 3 a minimum of 180 days, run the expanded 200-car test and, 4 assuming all went well, await processing of the 5 certification executive order. 6 We agree that this is a tight time frame and 7 propose a modified schedule to allow more time for 8 certification of Phase 2 systems. 9 Many stakeholders have also expressed concern 10 about the proposed in-station diagnostics, or ISD. A 11 commonly held view is that ISD is a good idea, but vapor 12 recovery improvements, namely quality and durability of 13 vapor recovery systems, should be addressed first. 14 Our position is that reliability and ISD go hand 15 in hand and the continuous monitoring of key vapor recovery 16 parameters will show where equipment failures occur and thus 17 promote improvement of vapor recovery systems. 18 Skeptics do not believe the proposed ISD systems 19 will work properly or provide useful information. 20 Although I mentioned the pressure monitoring 21 system is currently used in Mexico, this system does not 22 include sensors to monitor vapor return lines or data 23 loggers to store information, so later operative dates are 24 proposed to allow ISD system development. 25 Some commenters suggested a phase-in of ISD PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 245 1 requirements to allow evaluation of ISD operations on a few 2 stations before requiring installation on all service 3 stations. 4 We have amended our proposal to provide more time 5 for the implementation of ISD. 6 We have responded to all these concerns with a new 7 proposed implementation schedule for EVR. This time line 8 keeps the original effective date for Phase 1 ORVR 9 compatibility, liquid retention and spillage, which means 10 all systems must meet these EVR requirements by April 2005. 11 The 2003 operative dates for ORVR and spillage 12 will allow more time for Phase 2 systems to certify to these 13 new requirements. 14 The effective date for module two has been delayed 15 two years to April 2003 to provide more time to certify 16 Phase 2 equipment and allow existing stations to use their 17 current systems up to two years longer. 18 The schedule provides staggered effective dates 19 for ISD requirements based on annual gasoline throughput. 20 The smallest throughput stations, which represent less than 21 one percent of the total emissions, would be exempt from ISD 22 requirements. 23 We have also added provisions that alternative 24 strategies could be considered in lieu of ISD monitoring 25 equipment, as long as there is equivalent monitoring PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 246 1 reliability and timeliness in detecting vapor recovery 2 system failures. 3 New facilities with high gasoline throughput would 4 be subject to ISD in 2003, a year earlier than originally 5 proposed. This will allow more time to evaluate the ISD 6 systems at relatively few stations before having to upgrade 7 existing systems. 8 I want to emphasize that our amendments to the 9 original proposals are beneficial to all station operators, 10 including small businesses. 11 We have delayed implementation for Phase 2 systems 12 for two years. This gives existing stations until 2007 to 13 upgrade their equipment. 14 We have exempted low-throughput stations from 15 in-station diagnostics requirements. 16 The mid throughput stations will have until 2008 17 to comply with the ISD. 18 As I mentioned before, all of the EVR will be 19 subject to the technology review which will provide 20 additional opportunity to assess the impacts of the new 21 requirements. 22 In our meetings with service station operators and 23 California Independent Oil Marketers' Association, we agreed 24 to work with them to communicate EVR requirements to station 25 operators and look at financing options to facilitate EVR PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 247 1 implementation. 2 Another issue for which we suggest further 3 amendment deals with transfer of vapor recovery 4 certification. The system certification holder is expected 5 to provide ongoing technical support throughout the lifetime 6 of the certification. Through the process of mergers and 7 acquisitions, this responsibility has been lost for some 8 certified equipment. To avoid this in future 9 certifications, we propose that the certification would 10 expire upon date of transfer to new ownership. 11 To protect purchasers who have already installed 12 this equipment, we have amended our proposal to allow the 13 certification to lapse normally at the end of the four-year 14 certification life. 15 However, the new certification owner cannot offer 16 this system for sale until it is recertified. 17 What happens next for vapor recovery? 18 First, we'll continue our short-term efforts to 19 make existing systems perform as well as or better than 20 originally certified. If EVR is adopted, we expect to be 21 very busy over the next few years certifying systems to meet 22 the new standards. 23 We will work with CAPCOA to allow district staff 24 to provide input on systems seeking certification, as 25 districts are responsible for permitting, inspecting and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 248 1 testing in-use systems. 2 As already mentioned, those aspects of EVR that 3 are considered to be technology forcing will be reviewed in 4 2002 and we will review to the board if necessary to make 5 any mid-course corrections. 6 We will continue to collect data to improve our 7 emission inventory, especially in the area of summer and 8 winter emissions differences. 9 We'll work with the State Water Resources Control 10 Board and CAPCOA to pursue training and licensing of service 11 station contractors to ensure proper vapor recovery 12 installation, repair and maintenance. 13 In conclusion, I'd like to restate that this 14 proposal was developed with extensive outreach to affected 15 parties, with adjustments made to address concerns over the 16 last two years. 17 Our economic analysis shows that the proposed 18 measures are cost effective. 19 The new standards proposed are necessary to 20 fulfill the ozone SIP settlement agreement, protect public 21 health, and help districts meet their attainment goals. 22 Finally, we recommend adoption of our amended 23 proposal with the understanding that changes to the original 24 proposal will undergo a 15-day comment period. 25 That concludes my presentation. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 249 1 CHAIRMAN LLOYD: Thank you very much. 2 Madam Ombudsman, would you share with us the 3 public participation process in this regulation and any 4 comments or concerns you may have. 5 OMBUDSMAN TSCHOGL: Thank you. I'd be glad to. 6 Mr. Chairman, and members of the board, 7 California's gasoline vapor recovery program has been one of 8 the most challenging and complex clean air programs ever 9 undertaken by the ARB and the air districts. 10 All stakeholders, whether in total agreement or 11 not with these amendments, overwhelming agree that something 12 must be done to improve gasoline vapor recovery. 13 As ombudsman I've been extremely fortunate to have 14 had the opportunity to work closely on this item with the 15 EVR team. This team is comprised of ARB management, 16 technical staff, districts and industry. 17 In addition to countless meetings, we also spent a 18 considerable amount of time in field demonstrations at gas 19 stations and parts houses. 20 The EVR team, while applying their best 21 engineering judgment for the proposal, really went out of 22 their way to seek guidance from the affected stakeholders. 23 I commend staff's efforts and would like to 24 recognize them for going the extra mile. They leveraged the 25 knowledge in real-world experiences of the entire PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 250 1 stakeholder group to develop the very best proposal. 2 Outreach included nine workshops, dozens of 3 smaller meetings and literally nonstop personal 4 communication. 5 In summary, staff's proposal represents the 6 collective good will of all who were involved in its 7 development. Because staff incorporated technology review 8 into the regulation, it should be considered a work in 9 progress. 10 I look forward to continuing to watch the process 11 from the inside of the EVR team. From my perspective it has 12 been a perfect model of proper stakeholder outreach. 13 Thank you. 14 CHAIRMAN LLOYD: Thank you very much. 15 Any question or comments from the board at this 16 time? 17 BOARD MEMBER CALHOUN: Yes, Mr. Chairman. 18 I assume from the statements made that the systems 19 are certified by the state and the enforcement is left up to 20 the local districts; is that right? 21 MR. KENNY: Both. 22 BOARD MEMBER CALHOUN: Can you very briefly 23 describe what the local districts do when they inspect the 24 service station? 25 MS. McKINNEY: My name is Laura McKinney. I'm the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 251 1 manager of the Certification Section. 2 When we certify a system we issue an executive 3 order which gives the districts guidelines for the 4 performance of the system, including certain tests that the 5 districts can conduct upon installation or periodically to 6 determine compliance. 7 A district inspection of a station may include a 8 visual examination of the equipment, and may also include 9 the performance or observation of a test performed by a 10 contractor, such as pressurizing the underground storage 11 tank to a couple of inches of pressure and monitoring the 12 decay rate over time to make sure that it doesn't leak 13 excessively, or dispensing some gasoline through test 14 equipment to verify that it collects the correct amount of 15 vapor for the gasoline dispensed. 16 BOARD MEMBER CALHOUN: Understood you to say they 17 may do these things, but do we actually know what they do 18 when they go through the inspection station, the service 19 station? 20 MS. McKINNEY: We participate in the CAPCOA Vapor 21 Recovery Committee meeting where districts talk about 22 recommended inspection procedures and make us aware of 23 problems that they've discovered. 24 BOARD MEMBER CALHOUN: I guess that didn't fully 25 answer my question. Do we know what they actually do? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 252 1 MR. CACKETTE: If the question is do they, all the 2 districts do inspections, the answer is yes. And they 3 follow generally the same approach according to what the 4 executive order identifies as the kind of tests that need to 5 be done. There's degree of how much is done, varies by 6 district. We know that the more you do, the higher the 7 compliance rate tends to be, but all districts put out a 8 concerted effort to assure that systems are working in the 9 field. 10 But because of a number of problems that we've 11 identified, we meaning the districts and ourselves, they do 12 find problems and sometimes it's due to poor installation, 13 sometimes due to poor maintenance and sometimes due to the 14 certified parts that we certified don't work in the field. 15 So we're trying to address all of those here and 16 hopefully in the end with a complete system there will be 17 less resources that will be needed to keep the systems up to 18 a high level of compliance. 19 BOARD MEMBER CALHOUN: Under the proposal that the 20 staff made today there would be an in-station diagnostic as 21 part of one of the requirements. Would this be a visible 22 indication or would it be an audible indication or how would 23 that work, what do you anticipate? 24 MR. CACKETTE: The exact details of how it will be 25 monitored will be worked out later, but in essence it will PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 253 1 give a warning to the station operator that there's a 2 problem with the station, that one of the critical 3 components that assures efficiency is not working right, and 4 then after some period of time adequate to fix it, if it's 5 not fixed, it will shut down that dispenser. 6 BOARD MEMBER CALHOUN: This would be automatic? 7 MR. CACKETTE: Yes. And it's a record of it 8 that's kept on the diagnostic systems so the inspectors can 9 go in and verify whether things have been working right or 10 not, as well as having the automated aspect of it. It's 11 modeled after the model OBD system, although it's not to the 12 level of sophistication that OBD provides now. 13 CHAIRMAN LLOYD: Except on the vehicle if OBD goes 14 on the car doesn't stop. 15 MR. CACKETTE: That's right. 16 We're also going to have a period where when these 17 initially go in where there is no shutdown occurring because 18 we want to make sure there aren't any false problems with 19 them, that would put people at a disadvantage. 20 But ultimately we expect that lots of time will be 21 provided before any station would actually have a dispenser 22 shut down. 23 Right now they do it on inspections. If you find 24 a problem, the district red tags it and that dispenser or 25 nozzle is out of duty until it's fixed. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 254 1 BOARD MEMBER CALHOUN: Do we have any idea how 2 frequently the stations are inspected? 3 MR. CACKETTE: Some Of the districts require 4 inspections I think quarterly now, which has been in 5 response to some the relatively high failure rates that 6 we've been seeing in use. More traditionally I think it was 7 on an annual basis. It does vary again by district, the 8 resources available, so forth. 9 BOARD MEMBER CALHOUN: Thank you. 10 CHAIRMAN LLOYD: Thank you. 11 Supervisor DeSaulnier. 12 BOARD MEMBER DeSAULNIER: Tom, just I see Dennis 13 Decota is on our list of speakers, so I'm sure he'll speak 14 to this, but when you look at the cost for gasoline 15 dispensing facilities, particularly for service stations, 16 you've got the cost for these as low as 2700 per year up to 17 3100. 18 But I wonder if we look at sort of the cumulative 19 costs that they've had to go through in the last few years, 20 for instance I'm concerned about independents who have had 21 to pay for underground tanks, you know, and then this and 22 other things. Do we look at that? 23 MR. CACKETTE: Yes. We were very aware of it 24 obviously from the MTBE involvement we've had of the 25 underground storage replacement program. We did look at PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 255 1 what the costs are. 2 Obviously, we didn't include those costs in a 3 cost-effectiveness calculation, but we tried to be sensitive 4 to the fact that many of these operators, especially the 5 smaller operators, have had to spend money replacing their 6 underground storage tanks. The system that the way we've 7 got the regulations set up, we do not believe that they're 8 going to have to redo anything that they've done, they're 9 not going to have to dig down into the tanks in most cases. 10 This is above-ground replacement or updating of equipment. 11 But, yes, I can't say, gee, they didn't put out 50 12 or 70 thousand dollars for underground storage tanks. They 13 did. And now they're going to have to, under this program, 14 they will have to spend some additional money to control the 15 vapors, as opposed to control the liquid leaking gasoline. 16 BOARD MEMBER DeSAULNIER: I appreciate that. I 17 appreciate that staff's been sensitive to that and I'm sure 18 we're going to hear more about that issue in particular. 19 But as we listen to that I think it would be interesting for 20 me at least is the accumulated costs, particularly for the 21 independents, over the last five years or so, not just by 22 our regulations, but by sister agencies. 23 Thank you, Mr. Chairman. 24 CHAIRMAN LLOYD: Thank you very much. 25 Again, I'd like to call the first three witnesses PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 256 1 who signed up to speak on this item. That's Ron Wilkness, 2 Jeff Trask and Larry Greene. 3 And again to be fair to everyone here, I'm going 4 to limit and enforce the three-minute warning here so I 5 would ask you to prioritize your comments. If you think you 6 can't get them in in three minutes, put the most important 7 points first. 8 Thank you. 9 MR. WILKNISS: Good afternoon, Dr. Lloyd and 10 members of the board. My name is Ron Wilkness. I'm with 11 Western States Petroleum Association, which, as you know, is 12 the trade association for the oil industry in the Western 13 United States, particularly in California. 14 Many of our member companies operate retail 15 gasoline outlets that will be impacted by the requirements 16 of this proposal. I guess that's only obvious, isn't it? 17 WSPA has several members in common with American 18 Petroleum Institute, API. Both WSPA and API are concerned 19 with managing the impact of these regulations will have 20 outside of California. 21 Staff has touched upon this issue. 22 Mr. Jeff Trask, of API, who will be following me, 23 will elaborate on this issue. 24 As you've learned from the staff presentation, the 25 EVR program has been in development for a long time, so long PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 257 1 in fact that many of us seemed to think that this has been 2 our career. I suppose therefore that it's both good news 3 and bad news that our respective careers will not be ending 4 at the conclusion of your board meeting today, rather a 5 significant effort lies ahead. 6 For that reason I would like to talk about the 7 future during my brief comments this afternoon. 8 First I would be remiss if I failed to acknowledge 9 the fact that staff worked very hard to understand the 10 complex issues associated with this topic. This was truly a 11 monumental effort and I would like to thank Jim Ryden and 12 his entire EVR team for their dedication and 13 conscientiousness, and I should mention that your executive 14 officer helped quite a bit as well. 15 Several important changes have been made to the 16 EVR proposal, particularly in recent weeks. These changes 17 which are found in the proposed adopting resolution and in 18 the hand outs include, number one, revised implementation 19 timing and, number two, commitment to develop a program for 20 evaluating the reliability of vapor recovery equipment in 21 the field, proposals for several cooperative programs 22 including one regarding the implementation of ISD and some 23 specificity regarding the technology review scheduled for 24 the year 2002. 25 I think it's safe to say that all of the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 258 1 stakeholders are seeking to avoid a repeat of the turmoil 2 that we experienced over the past few years, because there 3 are so many changes compared to the current program. It is 4 critical that everything be done right the first time. 5 WSPA believes that the modifications which staff 6 is proposing go a long way toward ensuring our success. 7 WSPA supports the EVR program with the proposed 8 modifications and we would urge you to adopt the proposal. 9 I would like to comment briefly that some of the 10 changes we have actually only seen for the first time this 11 morning. Very quick review pointed out some minor 12 discrepancies. We've gotten some very good answers from the 13 staff, but we will commenting during the 15-day period. 14 Thank you. And I'd be pleased to answer any 15 questions. 16 CHAIRMAN LLOYD: Thank you very much, Ron, and 17 thank you for keeping the time. 18 Any questions from the board? 19 Thank you. 20 Next, Jeff Trask, Larry Greene, then Peter Hess. 21 MR. TRASK: Mr. Chairman, members of the board, 22 good afternoon. I'm Jeff Trask with the American Petroleum 23 Institute. API appreciates the opportunity to testify about 24 the EVR proposal. 25 Our approximately 400 members include companies PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 259 1 that market gasoline and use vapor recovery systems at 2 thousands of retail gasoline outlets in California and other 3 states. 4 In the interest of time I will be brief, and 5 summarize the more lengthy statement that we had submitted. 6 I would appreciate it if that could be entered 7 into the record. 8 CHAIRMAN LLOYD: Sure will. 9 MR. TRASK: Thank you. 10 Your staff is to be commended for identifying many 11 of the concepts that are incorporated into the current 12 proposal and working diligently to address stakeholders' 13 concerns. 14 Staff has made a number of improvements in the EVR 15 proposal as its evolved through the workshop process, some 16 of which are noted in our detailed comments. 17 During consideration of this proposal, API has had 18 two major concerns, the implementation approach and the 19 impact of the program outside of California. 20 The rest of my comments will focus on these two 21 important issues. 22 First, the implementation approach. 23 We understand that ARB would like to encourage 24 development of a new generation of vapor recovery equipment 25 through the EVR proposal. If properly implemented the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 260 1 proposal may achieve this goal. 2 However, we believe the greatest risk to meeting 3 the goal is improper implementation. If ARB imposes 4 requirements too quickly, technology will not achieve the 5 level it could under a longer term approach. 6 Also, the regulated community is concerned that 7 practical equipment may not be certified or commercially 8 available by the EVR program's required dates. 9 This could cause significant problems for 10 thousands of service station owners and operators and 11 potentially to consumers as well. So it's critical that the 12 program have effective safeguards to ensure any equipment 13 problems can be addressed. 14 ARB staff has proposed to delay the effective 15 dates for some of the proposal's modules and we support 16 these changes. However, staff has not proposed to delay the 17 effective date for ORVR compatibility, which is EVR module 18 number three. 19 API has consistently viewed ORVR compatibility as 20 a technology-forcing requirement and we believe it may prove 21 more difficult or overly burdensome to be realized. 22 For these reasons the ORVR compatibility module 23 should be included in the technology review. This is 24 addressed in the resolution and API supports that change. 25 API agrees with the views we have heard expressed PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 261 1 by ARB staff and other regulators. That implementation of 2 technology-forcing provisions has risks and should not be 3 rushed, so we strongly support the concept of a rigorous 4 technology review to be conducted and completed well before 5 the effective dates of the EVR proposal's technology-forcing 6 provisions. And we support the provision of the resolution 7 addressing this. 8 Technology reviews should allow independent 9 evaluation of equipment designed to meet the standards, as 10 well as all practical alternatives to EVR proposal. 11 As a result of the review, ARB should modify any 12 requirements that are technically and feasible or not cost 13 effective before the effective date. 14 Our industry will continue to work with staff to 15 incorporate these concepts into the review. 16 Our other major concern regarding the proposal has 17 been its potential impact -- 18 CHAIRMAN LLOYD: Thank you. Your time is up. 19 MR. TRASK: Okay. 20 CHAIRMAN LLOYD: Thank you. 21 MR. TRASK: Thank you very much. 22 CHAIRMAN LLOYD: Next is Larry Greene and then 23 Peter Hess. 24 MR. GREENE: Mr. Chairman, members of the board, 25 again I'm Larry Greene, representing the California Air PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 262 1 Pollution Control Officers' Association. 2 CAPCOA members agree with the underlying goals of 3 EVR and support the proposal under review by the board. 4 We provided substantial input into this regulation 5 over the past year and will continue to support the joint 6 CAPCOA-ARB process addressing both the current system 7 shortfalls and implementation of the new system. 8 We are committed to continuing this process 9 through the entire life cycle of the new systems. 10 I would particularly like to note that this 11 regulation establishes continuing efforts between CAPCOA and 12 the Air Resources Board to improve the process. These 13 include certification of new systems, elimination of systems 14 that fail to meet the emission reduction guidelines and a 15 process for receiving, tracking and resolving reports or 16 problems with certified systems. 17 Another element in a successful program is ARB 18 training for operators and district personnel. Your staff 19 is committed to sponsor this training as well as to develop 20 ways to certify vapor recovery equipment installers, 21 repairers, rebuilders and testers. 22 While we acknowledge that development, 23 certification and installation of EVR systems over the next 24 five-plus years will require increasing staffing levels at 25 the Air Resources Board, we urge the ARB to maintain the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 263 1 necessary staff to correct current system deficiencies while 2 EVR is being implemented. 3 In short, CAPCOA supports this proposal and looks 4 forward to working closely with the ARB staff over the next 5 number of years to implement corrections to the current 6 system and to implement EVR. 7 Thank you. 8 CHAIRMAN LLOYD: Thank you very much, Larry. 9 Next Peter Hess, then Dick Baldwin. 10 MR. HESS: Good afternoon, Dr. Lloyd and 11 Supervisor DeSaulnier. 12 My name is Peter Hess. I'm deputy executive 13 officer of the Bay Area Air Quality Management District. 14 I'm here to support the proposed Air Resources 15 Board enhancements to the vapor recovery program. 16 The enhanced vapor recovery program is very 17 significant to the Bay Area. Put into perspective, it's 14 18 tons per day of excess emissions in the Bay Area. That's 19 equivalent to an extra petroleum refinery emitting in the 20 Bay Area. 21 The Bay Area spends about one and three-quarter 22 million dollars per year inspecting and testing the vapor 23 recovery systems at the 1800 retail and 700 nonretail 24 stations in the Bay Area. A significant amount of resources 25 is spent. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 264 1 We wholeheartedly support the in-station 2 diagnostic program and the amendments as being proposed by 3 the Air Resources Board staff today. 4 We will stand by the Air Resources Board staff 5 with the pilot program and the testing of the in-station 6 diagnostics. 7 We also support the implementation in the 8 amendments of the module two and module six vapor recovery 9 program as proposed by your staff. 10 Again, we will stand ready to assist in the 11 testing, permitting, inspection and in the certification of 12 the enhanced vapor recovery program. 13 I appreciate the opportunity to work with the Air 14 Resources Board staff in the future. 15 CHAIRMAN LLOYD: Thank you, Peter. 16 Next Dick Baldwin, then Mr. Tokunaga, and 17 Ms. Drewry. 18 MR. BALDWIN: Thank you, Chairman Lloyd, board 19 members. Dick Baldwin, Ventura County Air Pollution Control 20 Officer. 21 A little bit of history. In 1975 I was hired by 22 the San Diego Air Pollution Control District to be their 23 chief of enforcement, and I came from Pennsylvania where I 24 was regulating power plants, glass plants, integrated steel 25 mills, foundries, some really tough things. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 265 1 So my first project in San Diego was to come up 2 with an enforcement program for this new vapor recovery 3 thing. I thought it was going to be a piece of cake. 25 4 years later it's not. 5 In terms of enforcement, when we first started to 6 enforce this there was an injunction against the district 7 for enforcing it. We resolved the issues. I enforced it. 8 An unnamed oil company cited us for contempt of 9 court and Rich Silverville and I almost went to jail. We 10 survived that, and didn't go to jail, but we're still here 11 trying to enforce the vapor recovery program. 12 And I want to say a couple things. 13 One is the changes for the existing programs are 14 right, they're good, they're needed to help us meet the 15 standards for the federal one-hour standard, but the 16 enhanced vapor recovery with the ISD is perhaps the most 17 important part of this program, so that we can actually 18 perhaps get ongoing enforcement and compliance, which is the 19 real key to get ongoing compliance with these systems. 20 Over time it's vapor recovery is the most 21 difficult enforcement program we have in Ventura County. It 22 was the most difficult thing I had to do in San Diego and 23 especially when they were threatening me to go to jail. 24 And I support the program. 25 Thank you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 266 1 CHAIRMAN LLOYD: Thank you very much. 2 Next Kevin Tokunaga. 3 MR. TOKUNAGA: For the record that's Tokunaga. 4 CHAIRMAN LLOYD: Thank you. 5 MR. TOKUNAGA: T-o-k-u-n-a-g-a, for the record. 6 CHAIRMAN LLOYD: Thank you. 7 MR. TOKUNAGA: I'm from the County of Glenn and, 8 to answer the question, that's hundred miles north of here 9 on Interstate 5. 10 I'm before you today representing the Glenn County 11 Air Pollution Control District and also the Glenn County 12 Underground Storage Tank Department. 13 I understand the reasons and the importance 14 surrounding the proposed EVR. 15 My comments are from the perspective of a 16 regulator who deals directly with CARB and the state Water 17 Resources Control Board staff regularly. 18 My first point is my first comment is I commend 19 CARB staff for lowering the -- for exempting the 13,000 20 gallon per month limit for ISD for the low-throughput 21 stations. I would like to see that, however, upped to 22 40,000 gallons per month in the remote and rural areas and a 23 comprehensive enhanced inspection and maintenance program 24 put in its place. 25 CHAIRMAN LLOYD: Pardon? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 267 1 MR. TOKUNAGA: Enhanced inspection and maintenance 2 type of program. 3 CHAIRMAN LLOYD: Okay. You're talking about the 4 tailpipe and what not? 5 MR. TOKUNAGA: No. Just series of the inspection 6 techniques and stuff that CAPCOA and CARB staff have worked 7 out over the years doing that on a daily or weekly type 8 basis, rather than going with the costly ISD system for some 9 of these low-throughput stations. 10 CHAIRMAN LLOYD: You're not talking about the smog 11 check program? 12 MR. TOKUNAGA: No. 13 CHAIRMAN LLOYD: Okay. 14 MR. TOKUNAGA: Although the ISD compliance date 15 has been pushed back an additional four years, for the very 16 low throughput stations, you still have several stations in 17 the 13,000 to 40,000 gallon per month range that for some 18 areas they're just going to stay in business another four 19 years before they maybe reach the point of not being 20 profitable anymore and they have to close their doors. 21 From both a financial and a regulatory aspect from 22 the regulations coming down from the Water Board and from 23 ARB, the regulatory mess is very tough on some of these 24 small stations. 25 The 40,000 also is inconsistent with the benzene PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 268 1 ATCM. 2 I've discussed EVR and particularly ISD with some 3 of the rural counties up in the northern part of the state, 4 regarding the low-throughput gas dispensing facilities. The 5 county's indicated that a number of gas-dispensing 6 facilities declined in some cases significantly after the 7 1998 UST upgrade date. The cost of ISD added on to the cost 8 of implementing SB 989, and I've included that in your 9 attachments, it's a six-page or so handout for the 10 low-throughput ISD's, is going to be tough for them to 11 absorb. 12 The counties that I talked to indicated that they 13 expected some gas-dispensing facilities to close as a 14 result. The fallout from -- 15 CHAIRMAN LLOYD: Can you summarize? 16 MR. TOKUNAGA: Yes. 17 The fallout from that is motorists in these remote 18 and rural areas must now travel greater distances to get gas 19 and in some cases this distance is going to be significant. 20 Many motorists in these remote rural counties, if 21 they have stations that close up, will opt to either put in 22 underground tanks or above-ground tanks for the reason of 23 convenience and cost, obviously. 24 I don't have to go into the environmental impact 25 that would result, as we saw that in the '70s when people PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 269 1 started putting tanks in their backyards and above-ground 2 tanks in their yards. 3 CHAIRMAN LLOYD: Thank you. Thank you very much. 4 Next is Mary Drewry, then Dennis Decota, then Jay 5 McKeeman. 6 MS. DREWRY: Good afternoon. My name is Mary 7 Drewry and I'm a Water Resources Control engineer from the 8 state Water Resources Control Board. I work in the 9 Underground Storage Tank Program. 10 I'm here today to briefly tell you about the 11 interaction that we've had with your board. 12 Currently, we're meeting on a monthly basis with 13 Cindy Castronovo and also Tom Scheffelin and we're going 14 over information that was needed to keep each other informed 15 about projects that we're working on. 16 Also Shahla Farahnak, chief of my unit, and myself 17 have attended several of the Air Resources Board workshops 18 on the enhanced vapor recovery. 19 Also Tom Scheffelin of the staff was at our 20 Underground Storage Tank Conference. 21 And also as far as interaction, the Air Board has 22 allowed the Water Board -- well, the Air Board has allowed a 23 manufacturer of underground storage tank equipment to 24 install the -- actually it's an underground component of the 25 turbine sump in their El Monte facility. And this is going PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 270 1 to be there for testing, field testing of equipment. 2 And we'd like to thank the Air Board for allowing 3 us to do that. 4 I really don't have much to say, except we're glad 5 that the two boards are working together and keeping each 6 other well informed. 7 CHAIRMAN LLOYD: Thank you. Thank you for 8 cooperation. 9 Dennis Decota, Jay McKeeman and Nick Bokides. 10 FROM THE AUDIENCE: Mr. Chairman, Dennis Decota 11 was called away to a meeting with the Attorney General on 12 the Fuel Task Force and informed me that he'd be back about 13 4:30 and would like to testify. 14 CHAIRMAN LLOYD: That's fine. 15 Jay McKeeman. 16 And after Nick, we've got Rick Bisker. 17 Jay, I know it's a stretch, but three minutes. 18 MR. McKEEMAN. Six minutes maybe. 19 CHAIRMAN LLOYD: No. We have your written 20 statement. 21 MR. McKEEMAN Okay. Well, my name is Jay McKeeman. 22 I'm with the California Independent Oil Marketers' 23 Association. We are the small independent operators in the 24 state. 25 And I have to disagree with your staff's PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 271 1 conclusion that they know the impact of this regulation on 2 small businesses. 3 I do not in fact know the impact of the regulation 4 on small businesses because, frankly, we've had insufficient 5 time to analyze the regulations and understanding their 6 impact. 7 At this moment many of our members have just 8 received an information package from us that gives them a 9 summary of the economic analysis done by ARB and it is until 10 we get the feedback from our members we don't really know 11 what the impact is. 12 Our members are the ones that have just spent, and 13 it's not 50 to 60 thousand, it's more in the neighborhood of 14 100 to 200 thousand dollars for underground storage tank 15 upgrades, and many of them took that opportunity to also 16 upgrade their fuel dispensing equipment. 17 And the way we view this regulation is that this 18 is additional cost that will be tacked on to those costs 19 that have already just recently been incurred. 20 Unlike the major oil companies, we don't have 21 access to large amounts of working capital. If you're an 22 unbranded station, you don't have access to upgrade 23 incentives or loans from the major oil companies. 24 So our members basically have to pay their own 25 monies for these upgrades and they go to banks to do it. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 272 1 At some point in time there is a moment when you 2 go to the bank and they tell you you cannot get any more 3 loans, because your throughput doesn't justify the cost. 4 There were a couple of issues -- we, first, I do 5 need to say to the Air Resources Board staff that we do 6 appreciate the meetings that they've had with us. They've 7 been very helpful to us in terms of helping us understand 8 the complexity and the aspects of this regulation. 9 In fact, that help is going to help our members 10 respond more adequately to the regulation. 11 But basically the 45 days that was provided in the 12 regulation, I mean in the review process, happened during a 13 time when our product or our supply prices were going up 14 daily, if not hourly, forcing our members to pay attention 15 to their business, not to a 900-page regulation. 16 There are two things that I would just like to 17 point out and on a very preliminary basis some major 18 concerns that we have with the regulation, and it will only 19 take about a minute. 20 First of all, Phase 1 improvements that were 21 discussed, we have found that a number of our members have 22 old Phase 1 drop tubes, and this will require that they go 23 in and completely replenish or replace their drop tube. 24 This is something that could run into hundreds of thousands 25 of dollars and these are typically the older rural stations PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 273 1 that the gentleman from Glenn County was talking about, and 2 frankly they will go out of business if they have to comply 3 with the Phase 1 requirement. 4 In-station diagnostics is another issue where 5 there are actually hidden costs. As you've heard, the local 6 districts are the ones that are going to require the 7 recordkeeping and the monitoring requirements and they're 8 also going to be the ones that set up whether these systems 9 shut down your station. So we don't even know what those 10 costs are going to be to our members, because those 11 requirements haven't been implemented yet, although the 12 requirement that an ISD be put in is part of this 13 regulation. 14 So we would suggest that you need to take a little 15 bit more time to analyze the impacts of this regulation on 16 our members, and a month or two in the net result of things 17 is, I don't think, going to hurt the timing of this 18 regulation and I think it will enormously help our members 19 understand the implications and help us be more constructive 20 in the ultimate design of the regulation. 21 CHAIRMAN LLOYD: Thank you very much. 22 Any questions from the board? 23 Supervisor Roberts. 24 BOARD MEMBER ROBERTS: I don't have a question, 25 but I'm listening to what's being said and I'll come back to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 274 1 later, because I'm very sensitive to that. We've already 2 been down that road and I'm not going down that road again. 3 We're going to lose these guys. 4 CHAIRMAN LLOYD: I understand. 5 Supervisor DeSaulnier. 6 BOARD MEMBER DeSAULNIER: Just a brief question. 7 How many members do you have right now, Jay? 8 MR. McKEEMAN: We have 500 members total, but 9 about half of those, or 250, are independent marketers. 10 BOARD MEMBER DeSAULNIER: And how many did you 11 have, say, three or four years ago? 12 MR. McKEEMAN: Probably about 400 marketer 13 members. We've been losing them on a fairly regular basis. 14 BOARD MEMBER DeSAULNIER: Thank you. 15 CHAIRMAN LLOYD: No. I think the board is also -- 16 Jay, the board is also I think very sensitive to your 17 comment and the shrinking profit margin, so I think we'll 18 have some discussion on this later. 19 Sorry. Mr. McKinnon, first, then Professor 20 Friedman. 21 BOARD MEMBER McKINNON: I apologize if I really 22 open up something here, but other than taking more time, and 23 I also am very sensitive to kind of where things are headed 24 for the folks you're representing, other than taking more 25 time, do you have a specific solution to the problem that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 275 1 would help us? Is there something that we should be looking 2 at? 3 MR. McKEEMAN: One of the things that we have to 4 understand better is whether the small volume limits that 5 are established in the regulation in fact are economically 6 reasonable. And I know I've had a couple of comments that 7 those are very low, that the small station threshold is a 8 very very low volume station. And we may have some comments 9 about where those thresholds are. 10 The other thing, I mean, it's a conundrum, and I'm 11 not sure until we get all our information in. Even high 12 volume stations can have low margins. It just depends on 13 the competitive environment you're in. 14 It may not just be a matter of volume, it may be a 15 more difficult calculus to reach exactly what is cost 16 effective in any particular case. But we're committed to 17 helping. 18 Our members want to operate environmentally 19 correct and environmentally effective equipment, because 20 we're ultimately liable if we're not. So it just makes 21 business and legal sense to do these things and we want to 22 make sure we're doing them right. 23 CHAIRMAN LLOYD: Professor Friedman. 24 BOARD MEMBER C.H. FRIEDMAN: I think he answered 25 my questions. That was what I was going to ask. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 276 1 CHAIRMAN LLOYD: Ms. Riordan. 2 BOARD MEMBER RIORDAN: Just one question. And 3 that is of your 250 members, do you know which ones are the 4 low volume, do you have knowledge of that? Does staff have 5 knowledge of that? Do we know the numbers? 6 MR. McKEEMAN: I don't have the numbers right at 7 hand, but we do basically we have the way our dues structure 8 is set up it is if people report their volumes accurately 9 there is a small volume level -- 10 BOARD MEMBER RIORDAN: Category. 11 MR. McKEEMAN: Category. And I can get that 12 information. 13 BOARD MEMBER RIORDAN: So it's available if we 14 want to search that. Thank you. 15 CHAIRMAN LLOYD: Thank you, Jay. 16 Then Nick Bokides, Rick Bisker and Donald 17 Leininger. 18 MR. BOKIDES: Chairman and board, I want to thank 19 you for getting my name right. You're one of the very few 20 people that has ever done that. 21 My name is Nick Bokides, and I represent 22 California Independent Oil Marketers, as Jay does. I am the 23 president this year. 24 I'm also the happy owner of two gas stations, so 25 you can ask me those questions directly. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 277 1 I think he covered pretty well who we are. 2 One of the things he may have missed is that we 3 are kind of the guys who are out in the community. We take 4 care of ag, we take care of schools and local government. 5 We're not major oil companies. We cannot raise prices at 6 will. We cannot collect revenue at will. We're in a very 7 difficult situation. Most of our members are family-owned 8 businesses and multigenerational. Lot of them have fathers, 9 sons, daughters involved. 10 We're certainly in favor of environmental 11 regulations. As a matter of fact, one of the things we 12 don't get credit for is the fact that, as a group, our 13 members spent more of our net worth on environmental 14 projects than probably any other small business in the, 15 state, that being underground tanks, vapor recovery, what it 16 is that we're required to do. 17 I'm opposing this measure today for a couple 18 reasons. 19 First one is not enough time. You guys, I hate to 20 bust up the love fest with staff here, but six weeks just 21 doesn't do it for us. And it's just not enough time for us 22 to get some good data. We're little guys. We have to go 23 out and find people to do that. We don't have staffs that 24 do this. 25 So the other thing I have questions about, and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 278 1 maybe you can help me with this, if this is a staff-driven 2 measure, and we've had staff-driven measures before, and now 3 we're being told that the money we've spent before was 4 wasted money, doesn't work. 5 I'm very concerned with that, that we're going to 6 have the same situation occurring again. 7 Nozzles. If you can make better nozzles, make 8 them make them now. What the heck. Why are we getting 9 substandard? Why does our authorizations made on stuff that 10 isn't working now? Again, we're the people who get fined 11 when the district comes out. We want the stuff to work. 12 We're very concerned about that. 13 I think manufacturers bear the brunt of a lot of 14 this. I think they see a big opportunity here. They're 15 going to work well with staff because they see a profit 16 margin here in their future. They just got done with us on 17 underground tanks, now we're going to go into vapor 18 recovery. 19 If anybody lived through the first round of 20 in-tank monitors, I don't think you've seen anything yet. 21 And when we do in-station diagnostics, we had incredible 22 disasters with failures in those technologies. We had 23 stations shut down. We had systems that didn't work. We 24 have systems that still don't work out there. 25 So in-station diagnostics are not the panacea PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 279 1 that's being painted here today. 2 Again, we have the same issues there. Where are 3 the repair people going to come from? Where is this 4 technology going to come from? Who is going to develop it? 5 And when it gets out to my level where I have to put the 6 money out and put it in my station, and it fails, who picks 7 up the tab? Of course I do. 8 So that's a great concern to me. 9 CHAIRMAN LLOYD: You just wrapping up? 10 MR. BOKIDES: No. 11 CHAIRMAN LLOYD: You've got the red light here, so 12 I'm sorry. 13 MR. BOKIDES: I see the red light there. 14 Let me just go through a few things real quick 15 here. 16 CHAIRMAN LLOYD: Just checking. 17 MR. BOKIDES: You know, we've had 20 years of 18 these things, these approvals going on, and now we have to 19 take the word of staff that we're going to get reasonable 20 costs for things that haven't been invented yet. 21 Please take that to heart. That doesn't make 22 sense. The cost estimates are just too weak to go anywhere 23 with. 24 This is going to create a big burden on people who 25 just spent hundreds of thousands of dollars upgrading PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 280 1 underground tank systems. 2 I heard earlier that this wasn't going to be 3 intrusive and not going to have to go underground. I don't 4 know how you install an ISD system without going 5 underground. Maybe you can explain that to me. 6 What's reasonable and what should be done? Let me 7 finish this up. 8 CHAIRMAN LLOYD: Bigger light. 9 MR. BOKIDES: Let's make what we have out there 10 work. Let's hold the manufacturers' feet to fire when they 11 sell us something that is supposed to do something, make it 12 work. That's what we want. We shouldn't have to pay for 13 another round of things that don't work. 14 I don't have a high feeling of confidence that's 15 going to happen. 16 Third-party oversight for any certifications needs 17 to be done. 18 Longer warranties for parts and labor. Doesn't 19 help me to give me parts warranties without labor 20 warranties. That's where the real cost is. 21 I think this is financial black hole. It's going 22 to cost a lot of money. And it's going to allow the major 23 oil companies to dominate even further, because you're going 24 to eliminate independents. 25 It's not good public policy. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 281 1 Thank you. 2 CHAIRMAN LLOYD: Thank you very much. 3 Questions, comments? 4 Thank you. 5 Rick Bisker, Don Leininger, and then Grenville 6 Sutcliffe. 7 MR. BISKER: Mr. Chairman, board members, my name 8 is Rick Bisker. I work for Dresser Wayne. We manufacture 9 gasoline dispensers. 10 I'll make it very short. 11 I sent my comments in a couple, I guess, ten days 12 ago. And I have to commend the staff here. They have 13 addressed all of our comments and I appreciate it. It's 14 been a long effort. But I wish it was happened earlier on 15 instead of the last ten days in this 45-day notice, instead 16 of the year and a half that we've been working on it. It 17 would have been better for everybody. 18 I do have one other concern and that is the 19 implementation of ORVR effective a year from now. Again, as 20 Jeff Trask had said, that we feel is a technology-driving 21 area, and to have an effective date of a year from now when 22 we have to do the testing within this next year to prove it 23 out, we would really want a reliable system and not a system 24 that maybe will work. 25 So we really would like to see the ORVR part of it PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 282 1 be added to the Phase 2 system, because if equipment can 2 still be sold without the ORVR feature until 2003, the 3 people that buy that equipment will then maybe have to go 4 back and retrofit that equipment again to meet the ORVR 5 compatibility factor. 6 So again thank the staff for their valiant effort 7 in this, and I hope you will consider that. 8 Thank you. 9 CHAIRMAN LLOYD: Thank you. 10 Mr. Don Leininger, Grenville Sutcliffe and then 11 James Healy. 12 If you could line up, it would save some time. 13 MR. LEININGER: Chairman Lloyd, members of the 14 board, my name is Don Leininger. I'm an engineer with the 15 OPW Fueling Components, located in Cincinnati, Ohio. 16 OPW is a manufacturer of automatic shut-off 17 nozzles used for dispensing fuel in your automobile, as well 18 as many other dispensing products. 19 We worked with California over the past 25 years 20 developing and furnishing vapor recovery products, not only 21 for Stage 1, but also Stage 2 use. 22 I thank you for the opportunity to follow up my 23 written letter and comments with the following expression of 24 some of the items that I want to particularly cover. 25 As explained in the staff report today, the EVR PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 283 1 proposals contains significant revisions and additions to 2 the California vapor recovery program. 3 These proposals, if you adopt them, will certainly 4 elevate and advance the level of equipment and vapor 5 recovery program, not only in California, but also in many 6 other states and countries that look to CARB for leadership. 7 As stated in the workshop and the EVR proposals, 8 all Stage 1 and Stage 2 equipment systems and equipment will 9 be required to be recertified. 10 I would urge this to be done uniformly and 11 according to the prescribed procedure. That is to say, no 12 system should be certified on assumptions of compatibility 13 or performance from previous testing, but rather on sound 14 engineering test methods as provided in the proposed EVR. 15 Testing should not only be for efficiency, but for 16 the other parameters, such as emissions, ORVR compatibility, 17 regardless of any previous testing that may have done. 18 I would encourage the use of formal evaluation of 19 systems. 20 Specifications that have been stated for equipment 21 performances are not necessarily uniform. As an example, 22 the specification for the allowable leak rate in the vapor 23 valves put on nozzles is different between assist nozzles 24 used on assist systems and balance systems. These vapor 25 valves provide the same service and feature. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 284 1 There should be a uniform leak rate applied to 2 these. It would seem appropriate to align any of these 3 performance standards where it seems to be appropriate. 4 With respect to the testing and certification of 5 equipment and systems, I strongly urge the consideration be 6 given to the module evaluations as described today, and 7 maybe a little bit further. 8 Presently the procedure requires systems to 9 incorporate all the EVR provisions before certification can 10 begin. It has been stated that they're going to be some 11 relief of that and some considerations for other ways. I 12 would certainly encourage that and would support your using 13 that as a means to get equipment out. There is many 14 benefits to do that. 15 CHAIRMAN LLOYD: Your time is up. 16 MR. LEININGER: It comes a win-win circumstances 17 if industry -- 18 CHAIRMAN LLOYD: Can you wrap up, please? 19 MR. LEININGER: Sure. 20 The proposals, as we also see them, would be more 21 flexible with this modular approach, and is suggested that 22 these parameters be applied for all the sensitive issues. 23 I would commend the staff for their efforts on the 24 development of the EVR program. 25 I urge the board to be very critical when PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 285 1 receiving the many comments that were submitted and bold and 2 challenging in these areas which may be identified as 3 questionable. 4 Thank you for the opportunity to make this 5 presentation. 6 CHAIRMAN LLOYD: Thank you. 7 Next Grenville Sutcliffe, James Healy and then 8 Peter Violino. 9 MR. SUTCLIFFE: Hello. I'm Grenville Sutcliffe. 10 I'm with Husky Corporation. We manufacture gasoline 11 nozzles, break-away valves, hanging hardware for the most 12 part. 13 And I've submitted a letter too that is hopefully 14 is organized and I'm going to try and hit just a few points 15 that are important to us. 16 The first is there's many things in the proposed 17 regulations pertaining to nozzles that we feel are doable 18 within enhanced versions of today's nozzles that leakless 19 vapors retain less liquids and dripless and we're ready to 20 start testing on those and a balance nozzle that doesn't 21 spit. 22 Of what's of major concern to us is that we would 23 like to see, that hasn't been addressed, is no arbitrary 24 decisions without appeal. 25 We have been failed twice on the 85th day of a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 286 1 90-day test, once for a pinhole in the bellows through which 2 a grain of sand would not pass, let alone vapors. 3 The other test was failed for one tear in a 4 certified hose out of 36 hoses at the station. The nozzle 5 has no effect on the hose. It was irrelevant to our test. 6 But we would had no means of appealing that and we 7 could not proceed with the certification test. 8 We would like for manufactures to have a method of 9 appealing adverse decisions rapidly. 10 Durability. We're going to a 180-day test instead 11 of a 90-day. We don't feel that that's going to enhance the 12 durability of the nozzles, that there's better ways of doing 13 it and today durability is well enhanced at the 14 manufacturing level. Quality, not pride in craftsmanship, 15 but documented consistency of product. This is the heart of 16 ISO 9001 manufacturing system. 17 Any change in a product from initial design 18 concepts to maintenance instructions that are put on a box, 19 must be documented. Any deviation from that standard must 20 be documented. And it is this documented consistency of 21 product from ISO-certified 9001 manufacturer that will 22 enhance durability. 23 We have a great concern with the efficiency test. 24 The vapor recovery recovers volumes. It doesn't recover 25 weights of hydrocarbons. And the nozzle can't sense that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 287 1 and the .38 pounds per thousand gallons is an average of a 2 number of tests. Well, if we're lucky and we're testing 3 with light vapors, we're going to be heros. If we're 4 testing with heavy vapors, which are documented in those 5 booklet, we're going to be dead, even though we get the 6 efficiency. That's not consistent testing. That's not a 7 standard, scientifically repeatable test and it's something 8 that nozzles can't affect. 9 And I could talk a lot more, but I think I'll shut 10 up. 11 CHAIRMAN LLOYD: Your red light is about to go 12 off. 13 MR. SUTCLIFFE: Thank you. 14 CHAIRMAN LLOYD: Thank you very much. 15 Next is James Healy, Peter Violino and Paul 16 McWhorter. 17 MR. HEALY: Good afternoon, Mr. Chairman, board 18 members. 19 I was not planning to speak today, but I got a 20 look at some material that was of great surprise to Healy 21 Systems. 22 I'll take you back a few years, when this agency 23 would not approve any Stage 2 vapor recovery systems unless 24 you could pass ORVR compatibility tests. 25 We have done that on three of our nozzle systems. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 288 1 In part it was done because one of them was decertified 2 because of ORVR compatibility. 3 There was no mechanism to employ this technology. 4 It's coming into place now. 5 And as of this morning, before I got here, I 6 assumed that was going to be ORVR compatibility requirement 7 April 1st, year 2001. It's now effectively pushed off to 8 2003. And I felt a little bit like General Custer at Little 9 Big Horn here today to listen to everyone wanting to have 10 ORVR pushed off for as far as it possibly can be, because we 11 have the technology that meets that requirement, as does 12 balance. 13 And one of the things that I see happening here is 14 that over these next several years, beginning with 2001, if 15 it goes forward the way it's presently constructed, there is 16 no requirement to implement technology that saves those 17 hydrocarbons from entering the environment, for any 18 purchases of assist type systems especially. 19 So effectively you've taken it out of the hands of 20 the Air Resources Board to control the amount of pollution 21 that goes into the environment and you've put it in the 22 hands of end users. 23 And here's what I think happens. If you roll over 24 service station sites at about ten percent a year, and most 25 of your major stations now are going for the assist PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 289 1 technology, not balance, because it is presumed to be from a 2 marketing standpoint a better choice. And without any 3 requirement to use the technology that's going to save those 4 hydrocarbons from entering the environment, the end user is 5 going to employ the kind of equipment that is spec'd on his 6 present engineering drawings and he's going to do that for 7 the next three years, about 30 percent of these service 8 station sites. 9 If they choose not to use the technology, will end 10 up being constructed and then they are brought into the 11 four-year grandfathering provision as well. 12 So you're looking at an ongoing massive increase 13 of hydrocarbons entering the environment, and I mean many 14 tons, and nobody seems to be interested in doing something 15 about it. 16 What had happened, I understand this morning, was 17 that the agency made a deal with major oil, bring forward 18 Phase 1 and we'll do that quickly and take advantage of 19 those tonnage amounts of hydrocarbon and push off ORVR for 20 Phase 2. 21 Two years apparently was the deal. 22 We've had that technology in hand and your Bay 23 Area control people want to employ it June 1st of this year 24 to meet their federal SIP requirements, and it's not being 25 employed here by the state agency. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 290 1 Effectively it's been used as a club to get this 2 deal for Phase 1. 3 I don't think that's a fair or equitable thing to 4 do for us, when we've tried very very hard to meet the 5 requirements of the board in meeting ORVR requirements. 6 CHAIRMAN LLOYD: Thank you. 7 Could we have staff respond. 8 Mr. LOSCUTOFF: In no way, in any shape or fashion 9 did we intend to exclude Mr. Healy and his certified ORVR 10 nozzle. 11 We have received many comments about delaying the 12 ORVR implementation, as you have heard already, from several 13 people, including some of the equipment manufacturers and 14 their comments that they provided to us. 15 We felt that it was a reasonable compromise to 16 retain the effective date ORVR so we would retain the 17 emission benefits in the year 2005, but to delay the 18 operative date to 2003. 19 We did in effect regain some of the emission 20 losses that we may have incurred through this delay by 21 coming to an agreement with CAPCOA and WSPA to expedite the 22 implementation of the Phase 1 requirements, which in 23 themselves are close to five tons a day. 24 So I would not typify the way that Mr. Healy did. 25 I do believe what staff has proposed is a reasonable PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 291 1 approach to implementing the ORVR compatibility 2 requirements. 3 For the record my name is Bill Loscutoff. 4 CHAIRMAN LLOYD: If anybody wants to go ahead of 5 the schedule, they could do that? 6 MR. LOSCUTOFF: Absolutely. 7 And actually I believe that Mr. Healy has a 8 marketing advantage, because people are eventually going to 9 have to comply with ORVR capability, so he has a system that 10 is certified to be ORVR compatible by the old test methods 11 right now and if somebody desires to purchase that equipment 12 they can do so. 13 CHAIRMAN LLOYD: Thank you. 14 MR. HEALY: May I make one more comment? 15 With regard to this interest in holding down costs 16 for the end user, I noticed on the slide that was shown 17 earlier that new service stations are going to require 18 uni-hose type construction. Uni-hose dispensers with all of 19 the bells and whistles that they can provide, equipped with 20 balance or equipped with Healy, are less expensive than any 21 of the other assist systems that are presently being 22 installed. So the cost advantage is nonexistent. So here 23 we have not only a vapor recovery poor system being 24 installed from an ORVR standpoint, but it's also a more 25 expensive system. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 292 1 I just don't get the logic. 2 CHAIRMAN LLOYD: Thank you. 3 MR. HEALY: Thank you. 4 CHAIRMAN LLOYD: Yes, Mr. Violino, Paul McWhorter 5 and then Dennis Decota finally is back. 6 MR. VIOLINO: Thank you. My name is Peter 7 Violino. Board, staff, thank you for giving me this 8 opportunity to speak in front of you today. 9 I have presented some written comments and will 10 not go over those at this time, but the board has probably 11 heard this or the staff has probably heard this before from 12 EBW. We're an equipment manufacturer, one of those 13 manufacturers, as Nick Bokides says, waiting to make money 14 on these regulations. 15 And in fact that's the point I'm really speaking 16 to today. I'm speaking to the complete system approval 17 versus the non-system specific approvals for individual 18 items. 19 We make typically nonspecific, non-system specific 20 items, but we are looking into the area of ISD, and some 21 other areas, which would be part of a system. As Mr. Healy 22 has a system, there are other systems on the market. 23 Typically we market to the end user. If our 24 system, if our components to a complete system are only 25 marketed as a complete system for system approval PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 293 1 certification, our market then becomes the other equipment 2 manufacturers. 3 And we feel that's a shift. We feel that that can 4 reduce competition to the field. 5 Now, we have worked with the board over the 6 last -- or excuse me, the staff over the last six or eight 7 months and expressed many concerns, and they've addressed 8 many of those, and there are still a couple that we want to 9 reemphasize here, and that's what I'm doing today. 10 In the area typically of the ISD, which is part of 11 the system or system specific, and also nozzles and vacuum 12 equipment, I feel that if those items are designated as 13 non-system specific or are given specifications that 14 equipment could be tested to, it would give manufacturers 15 the ability to be more innovative, bring new products to the 16 market sooner, than if we have to bring our products to an 17 existing systems certification holder and convince them to 18 bring them to market. 19 That's the crux of my argument today. 20 CHAIRMAN LLOYD: Thank you very much indeed. 21 MR. VIOLINO: You're welcome. 22 CHAIRMAN LLOYD: Next is Paul McWhorter, then 23 Dennis Decota and then Bill Beck. 24 MR. McWHORTER: Good afternoon, board members, 25 colleagues. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 294 1 I believe that it is not the intent of the 2 proposal to impact the type of technology which I represent. 3 I'm here on behalf of Eco Vault, a fuel storage tank 4 manufacturer, and the Safe Trade Association. 5 That being said, we've had a brief opportunity to 6 visit with Mr. Ryden and Mr. Fischer of your staff. 7 We do have some concerns, primarily because we 8 only found out about this hearing in the last two weeks. 9 We are traditionally the first people that anyone 10 who wants to comply with CARB runs into. When they want to 11 have fuel storage on-site, they come to us. It becomes our 12 responsibility to properly accessorize the tanks and make 13 sure that they do perform. 14 We don't think that there was any objective to 15 miss our involvement. We look forward to the opportunity to 16 work with you. We welcome any questions on the intent that 17 we want this to be a responsible program. 18 Simply put, as Mrs. Browner learned this week, 19 March 21st the MTBE is being phased out. March 21st, if I 20 might read a brief excerpt, following California's lead, the 21 Clinton administration moved yesterday to phase out the fuel 22 additive MTBE to avoid further contamination of groundwater 23 by the suspected carcinogen. 24 We simply want to be involved with you. 25 As I said, those are my remarks. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 295 1 Any questions we would love to entertain. 2 Our specific remarks are focused on module one and 3 module two, Phase 1 and Phase 2 vapor recovery. 4 Thank you. 5 CHAIRMAN LLOYD: Thank you very much. 6 Dennis Decota. 7 MR. DECOTA: Mr. Chairman, members, my name is 8 Dennis Decota. I'm the executive director of the California 9 Service Station Automotive Repair Association. We represent 10 about 850 petroleum retailers throughout the State of 11 California. 12 I'm here today to support the goals of these 13 amendments, but I'm very concerned with the way that the 14 cost estimates to both the consumers and small business have 15 been addressed. I believe there is inequities that need to 16 be looked at carefully. 17 We're asking basically for a quarter of a billion 18 dollars from retailers and their customers to be implemented 19 into the program. 20 As a petroleum retailer for the last 23 years, I 21 first came in at a Stage 2 vapor recovery back in 1978. At 22 that time we had approximately 15,000 retail outlets in the 23 state. Today we have 50 percent of that. There's 7200. We 24 look at that and say what caused the demise of these small 25 businesses. And much of it was because the oil companies PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 296 1 and their marketing philosophies used things like these 2 regulations to consolidate the industry. If the oil company 3 is a property owner and did not want to do the improvements 4 on tanks, they simply terminated the dealer, and another 5 point of competition went away. 6 It is important that we realize the ramifications 7 behind regulations like this. 8 First of all, if you look at the recent price 9 trends since the first of the year, you will find that 10 service station dealers overall have lost as much as six 11 cents per gallon on their operating cost to operate their 12 service stations. 13 If you look at a normal gasoline invoice you would 14 see lead poisoning fees, California underground storage tank 15 fees, you will see many other different fees. 16 I believe that we have the opportunity this time 17 to take and garner the money and speed up the time frame and 18 in introducing the regulation to reduce emissions by taking 19 and collecting the tax on a per gallon basis to all 20 retailers, putting it into a fund and disbursing by highest 21 volume to lowest volume stations equally with no loans. The 22 consumer is going to pay the bill no matter what. Let's get 23 the money first, not let it be manipulated in marketing 24 areas. 25 I mean, if you look back right now, we have PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 297 1 dealers -- we lost 862 dealers last December on the 2 underground tank issue, but nobody realizes that for ten 3 years they had a price advantage over the dealer that put in 4 the vapor recovery in the beginning. And they had a large 5 advantage on the street. 6 We need to take and look at these issues and how 7 they impact the industry and competition. 8 And I honestly feel that the staff is very willing 9 to work with us in this issue, but to approve the amendments 10 without addressing those components I think is remiss and 11 will create a situation of just what we have been facing 12 over the underground storage tank issue, and many like that. 13 I mean, today we have dealers that have invested 14 literally hundreds of thousands of dollars to upgrade and 15 will have to be tearing those slabs up to clean up MTBE, 16 because this it never tested for. While we had ten years to 17 get those tanks replaced, we didn't really understand the 18 implications of MTBE in the groundwater, thus it's still 19 there and the tanks have all been redone and those expenses 20 have been expended and they're charged to the dealer via 21 either lease rents or directly as a payment if he owns the 22 property. 23 So with that, I'll take any questions that you may 24 have. 25 CHAIRMAN LLOYD: Thank you very much. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 298 1 Yes, Supervisor DeSaulnier. 2 BOARD MEMBER DeSAULNIER: Dennis, what, to borrow 3 our old chair's expression, what would you have us do? 4 MR. DECOTA: Well, I think first of all you really 5 have to look at the cost. If you're taking and reducing the 6 amount of nozzles for exposure, it's good from the 7 standpoint of emissions, but is there another way that we 8 can do it where you don't in some cases shut down 50 percent 9 of the station's pumpability. 10 Because once right now if you hit one on a 11 three-sided, on a six-pack, let's say, on a six-pack you got 12 a nozzle go down, you can operate five other fueling points. 13 You can't do it under this situation. And I know that's 14 extracted out. 15 But I think if we had good, proven retrofit 16 program, if we had good tests on nozzles to the point to 17 where you know we didn't get into the debacle that we did 18 with the old vapor recovery nozzles, and the consumer, the 19 consumer has a lot to say in this that we should -- I know 20 there's time frame for beta testing, you know, basically 21 rolling out the program early, but I don't think we should 22 mandate something until we understand it and then develop 23 the mechanism to fund it. 24 And I think the consumer, the California consumer, 25 is the one that pays the bill here. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 299 1 I would much rather see the money collected in a 2 tax-type situation or a fee and then redistributed by 3 whoever you empower to do so to those facilities to get the 4 work done, and I think that would take and allow us -- we 5 don't charge in quarter cents, okay. We charge in pennies 6 and anything you do should be in pennies, because if you 7 don't, we will be in an unfair position to those that have a 8 different set of economics at marketing and we need to take 9 and keep the playing field as level at possible. 10 BOARD MEMBER DeSAULNIER: Just ask staff to 11 respond to that. Do we have the regulatory authority to do 12 that now? Would it take the legislative action? 13 MR. KENNY: Yes, it would. 14 CHAIRMAN LLOYD: Yes, Professor. 15 BOARD MEMBER C.H. FRIEDMAN: Just to pick up on 16 that, it seems to me, tell me if this is wrong-headed 17 thinking, it seems to me that you would, within your purview 18 and authority adopt a program that does impose costs and 19 give a time line sufficient to enable the industry with the 20 cooperation of the board or the staff and others that are 21 imposing the new costs for reasons of public health and 22 safety and so forth, and go to the Legislature or go to the 23 Governor and figure out ways to help defray some of those 24 costs, rather than go and say, you know, they're threatening 25 to do this, they may or may not do it, it may or may not PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 300 1 take a specific shape or form, we really don't know what 2 we're talking about, but we want you to impose, we want to 3 tell you give us a commitment in advance, you'll underwrite 4 the cost. I don't think it works that way. 5 Tell me if I'm wrong. It seems to me we're in a 6 better position, and I think there are a number of us here 7 who feel a responsibility if we impose these kinds of rules 8 by our action to assist particularly the independents or the 9 smaller businesses to defray some of these, or as much of 10 these costs as we can, because a good part of this is 11 frankly our responsibility. 12 I wasn't here, but my predecessors were. 13 And you know we're going to make mistakes and 14 mistakes have been made. 15 And, yes, you folks are going to be paying for it 16 unless we can figure out a way to help you not to have to 17 pay for all of it. 18 But it seems to me it's the cart before the horse 19 what you're suggesting. 20 Tell me if that's wrong. 21 MR. DECOTA: I'm not going to tell you that's 22 wrong. I'm telling you that I'm standing here today saying 23 that the way the gasoline industry works is we have eaten 24 many of these type of fees over the years, and our margins 25 keep shrinking. The more service stations you lose, the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 301 1 higher price of gasoline you're going to pay. Back in 1978, 2 gasoline was 60 cents a gallon. Today it's $2. 3 BOARD MEMBER C.H. FRIEDMAN: For myself, I don't 4 want that to happen. 5 MR. DECOTA: I don't either. All I'm saying is 6 help us. We don't have the answers here. 7 But and I think staff has mentioned that they want 8 to work with us in this area and we look forward to it, but 9 to come out and say, okay, put another fee on top of us, 10 we're losing a dealer a week in the highest-priced gasoline 11 market in history. And the reason is they can't pay the 12 rent. Okay. 13 And we have a problem. We have a problem. And we 14 have a responsibility to the citizenry of non-polluting and 15 I've received the award from the Heart and Lung Association 16 for my previous work. I don't want, our members do not want 17 to pollute and they don't, you know, in no way. They would 18 do it, but they have to do it cost effectively and they need 19 the government to help them get there, because the oil 20 companies have a lot of control over this situation. 21 And my friends are with the oil concerns. I'm not 22 slamming them. This is the truth. I've never slammed the 23 oil companies. 24 BOARD MEMBER DeSAULNIER: That's funny. I think 25 I've heard something different from you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 302 1 MR. DECOTA: I don't know the answer here. What I 2 am saying is I'm open to sitting down and working especially 3 with the good folks at ARB and looking at maybe different 4 ways, Mr. Friedman, of taking and finding the solution to 5 the problem. 6 But the real solution is let's pay for it and get 7 it implemented and let's get it done so that the consumers 8 out there see a reduction in emissions and they feel value 9 for the money they're paying and the price. 10 CHAIRMAN LLOYD: Thank you very much. 11 Next is Bill Beck, David Harris, Daniel Kane and 12 Robert Hart, and that's the end of the witness list. 13 MR. BECK: Chairman, members of the board, staff, 14 my name is Bill Beck. I'm with Guardian Containment 15 Systems. That's an armor-cast and armor-vault fuel storage 16 tanks. 17 I don't have much to say other than part of the 18 problem is the two-inch thick book. 19 But I heard somebody mention earlier that there's 20 going to be or there should be at least a testing for 21 stations quarterly. I don't think you have enough trained 22 people to do it once a year. 23 Although I agree with breathing clean air and 24 drinking clean water, there are some things that you push to 25 the point beyond reasonability. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 303 1 Somebody said that there's systems out there that 2 work right now. I just recall going into brand new service 3 stations, seeing the pump today and go a week later and it 4 doesn't look the same as what it did a week ago. The public 5 handling of equipment that might have sensitive sensors in 6 it that might shut down a station just doesn't make sense to 7 me. 8 So basically the public handling of equipment is 9 something that I don't think you've taken full consideration 10 of when the possibility of shutting down a station's income 11 is at risk. 12 That's it. 13 CHAIRMAN LLOYD: Thank you. 14 David Harris. 15 MR. HARRIS: Chairman, members of the board, my 16 name is David Harris. I'm from Con Vault. I'm also a 17 member of the Safe Group which manufacturers protected 18 above-ground fuel storage tanks. 19 I understand the emphasis today has been on 20 underground storage tanks and the equipment, also in retail. 21 Really ASTs in the non-retail business have not been 22 mentioned. I'm not really sure if this applies to them or 23 not, to be honest with you. But there are quite a number of 24 above-ground storage tanks not in retail use, marinas, golf 25 courses, fire stations, lot of city uses, state use, around PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 304 1 the state that have vapor recovery on them right now. 2 They're gasoline dispensing, so technically I guess it 3 applies. 4 For these people the quarter cent is not going to 5 apply because their throughput is not going to be even close 6 to what a retail gas station is going to be. This may be 7 onerous to them as far as the cost goes. Maybe that could 8 be exempted, much as the other part was for monitoring the 9 service stations. 10 One of the things that we've felt like in our 11 company that should be looked at, which would really reduce 12 emissions and has not been looked at, it doesn't appear at 13 all in this, is the steel tanks that are above ground, just 14 from the expansion and contraction of the fuel day by day 15 you're going to lose probably a thousand-gallon tank, you're 16 going to lose a ton of emissions during a year because 17 hardly any of these tanks have pressure vacuum vents on 18 them. By merely installing a pressure vacuum vent on these 19 tanks you can save a ton, literally a ton of vapor emissions 20 per year and you're talking about a 20, 30 dollar at the 21 most, $60 item. It's something that's not included in any 22 of these items that we talked about today at all. 23 That's the extent of my -- 24 CHAIRMAN LLOYD: How many above-ground steel tanks 25 do you think there are? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 305 1 MR. HARRIS: In California? 2 CHAIRMAN LLOYD: Yes. 3 MR. HARRIS: 30, 40 thousand. 4 CHAIRMAN LLOYD: Yes. 5 MR. LOSCUTOFF: I'd like to ask a question. What 6 would be the -- could you estimate the average throughput on 7 an annual basis of your above-ground tanks? 8 MR. HARRIS: On our tanks? 9 MR. LOSCUTOFF: Yes. 10 MR. HARRIS: The largest tanks manufactured by the 11 Safe Group, I believe, is 20,000 gallons. They're going to 12 refilled at the max twice a month, I'm going to say. There 13 may be a few exceptions to that. So you're looking at, you 14 know, maybe a few that are going in the 100,000 gallon. 15 Most of them are going to be thousand-gallon, 2,000-gallon 16 tanks. You're not looking at really large throughput at 17 all. I can give you an estimate if you'd like. 18 MR. LOSCUTOFF: Okay. Just to point out that in 19 our proposal our in-station diagnostics does exempt annual 20 throughputs of up to 160,000 gallons per year. 21 MR. HARRIS: Yes, sir. I understood that point. 22 It was the rest of the recertification of their equipment 23 that I was concerned about. 24 CHAIRMAN LLOYD: I was just concerned about 25 whether this is being picked up in the emission inventory. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 306 1 MR. HARRIS: A lot of these are at farms, 2 orchards, wherever, that are at remote locations and may not 3 be noticed. 4 CHAIRMAN LLOYD: Okay. Thank you very much. 5 Daniel Kane and Robert hart. 6 MR. KANE: Good afternoon. My name is Daniel 7 Kane, representing Kavlico, Ventura County company 8 manufacturing pressure sensors and we're the largest 9 manufacturer in North America. 10 You do have my comments, but I'd like to just 11 condense some of them with respect to the specifications in 12 the ARB document. 13 Pursuant to the ARB specification of pressure 14 sensor accuracy of plus or minus five inches of water column 15 is specified over a -- I'm sorry, a pressure sensor accuracy 16 of plus or minus .05 inches is specified over a full range 17 of minus five to plus five inches. It is Kavlico's comment 18 that that accuracy being .5 percent is very tight and would 19 significantly increase the cost of a sensor. 20 Robust pressure sensors built within high-volume 21 productions methods with a total air band of two to three 22 percent are readily available at low cost and will probably 23 achieve the pressure monitoring goals. 24 These same accuracy characteristics would apply to 25 measuring the low purchases in the vacuum assist method as PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 307 1 well. 2 In contrast, a lab grade pressure sensor with an 3 accuracy of let's say a half a percent may increase the unit 4 cost by as much as ten times, in comparison to a two or 5 three percent accuracy sensor, even for volumes correlating 6 to the number of gas stations in California. 7 In regards to total system error bands, there 8 needs to be an analysis of acceptable total system errors. 9 The results will help to identify the accuracy that is 10 required for the pressure sensor. Therefore, incremental 11 pressure measurements throughout the specified range will 12 provide meaningful data for the application. 13 And number three, in regards to site variables, 14 pursuant to the ARB specification, there will need to be 15 specifications as to whether or not an explosion-proof or 16 intrinsically safe sensor package is required. 17 Note that an explosion-proof or intrinsically safe 18 package in itself would triple, could triple or quadruple 19 the unit cost of a pressure sensor. 20 It may also be helpful for all environmental 21 parameters to be further specified in addition to 22 temperature and humidity, such as the possibility of a 23 specification for electromagnetic interference. 24 The final sensor component designed to meet all 25 these parameters will have an impact on the overall unit PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 308 1 cost. 2 And finally regarding component certification, it 3 is Kavlico's comment that pressure sensors as components 4 should be certified at a component level only. This would 5 allow any component manufacturer to compete freely in order 6 to be considered as a part any system approved for the ARB. 7 Therefore, the system manufacturer or assembler 8 could entertain the use of any pressure sensor that has been 9 certified, provided it meets the required performance for 10 the overall system. 11 However, the current proposal would result in 12 significant costs, testing and paperwork in order to certify 13 every component independently for each system. This would 14 make open competition in any after-market sales of other 15 sensor suppliers costly and time consuming. 16 CHAIRMAN LLOYD: Thank you very much. 17 MR. KANE: Thank you. 18 CHAIRMAN LLOYD: Last witness, Robert Hart. 19 MR. HART: By the way, I tend to agree with Dan 20 Kane's arguments on cost of sensors and on accuracy of 21 pressure sensors and also certification. 22 My name is Bob Hart. I'm an engineer and manager 23 of technology development at Veeder-Root Company. 24 We at Veeder-Root commend the Air Resources Board 25 staff for their work on the proposed revisions. In our PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 309 1 meetings and interactions with the staff we have found them 2 helpful, technically astute and willing to listen 3 suggestions for improving the standards for EVR. 4 Our experience at Veeder-Root centers around test 5 and measurement equipment at gasoline-dispensing facilities. 6 As a result of this focus, we can only make 7 relevant comments, mostly about the ISD portion of EVR. 8 However, we believe that all of the proposed 9 changes are important and useful in reducing air pollution. 10 ISD will provide continuous testing and rapid 11 notification for repair, and do it at a reasonable cost, but 12 it must be implemented in a sensible, conservative way so 13 nuisance alarms or shutdowns can be minimized. 14 We too want to learn from our early experience. 15 As an example illustrates the importance of ISD, 16 if a yearly inspection procedure finds a faulty system that 17 is only collecting say 50 percent of required vapors at a 18 site running 3,000 gallons per day, the daily loss would be 19 about 11 pounds of hydrocarbons. 20 If the losses were ongoing for a large part of a 21 year, losses would be about two to four thousand pounds. 22 In contrast, a continuously monitoring ISD system 23 which detects the failure resulting in a repair done within 24 a week would result in a loss of only 80 pounds, a huge 20 25 to 50 time reduction. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 310 1 More frequent quarterly inspections would still 2 result in large losses of 500 to a thousand pounds. 3 So frequent, preferably continuous, monitoring is 4 crucial to keeping total losses to a minimum. 5 The staff has proposed that ISD be implemented 6 with alarms that disable dispensing on individual tests. 7 Automated testing produces false alarms. So 8 shutdown and single failed test events will result in 9 improper interference with fueling operations. 10 We strongly suggest that alarms and shutdowns be 11 based on a collection of events, rather than single failed 12 tests. 13 Also, adequate time should be allowed for response 14 to alarms prior to shutdown, including notification, service 15 scheduling, and equipment repair. 16 We recommended that incentive for a third-party 17 ISD monitoring service be included. Alarms appear at the 18 remote service facility rather than locally. Diagnosis, 19 repair, scheduling, and shutdown decision-making is done by 20 service technicians who are trained to handle the problems. 21 This relieves the untrained local site personnel of the 22 problems. 23 CHAIRMAN LLOYD: Does your company provide such a 24 service? 25 MR. HART: Yes, we do. It's not a coincidence. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 311 1 In general, automated monitoring with ISD is 2 feasible and, yes, we think at reasonable cost. It can be 3 included as an upgrade to existing ATG equipment, automatic 4 tank gauging equipment, and it can be made available well in 5 advance of the operative date. 6 However, in order to keep costs down, we also 7 think that modular certification is critical. 8 CHAIRMAN LLOYD: Thank you. 9 MR. HART: With due consideration of our concerns, 10 we support the proposed amendments. 11 CHAIRMAN LLOYD: Thank you very much. 12 Again, I appreciate the cooperation of all the 13 witnesses to keep time here so we can -- we were afraid of 14 losing a quorum here and try to get this item approved 15 today. 16 I guess, Mr. Kenny, do we have any other written 17 comments that need to be entered into the record? 18 MR. KENNY: Yes, we do. 19 MS. CASTRONOVO: I'd like to summarize the 27 20 letters that we received, very quickly. 21 CHAIRMAN LLOYD: This will be quick? 22 MS. CASTRONOVO: Ten of the 27 provided testimony 23 today, so some of these issues should be very familiar. 24 We've grouped them under issues. 25 Five of the letters supported the EVR proposal or PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 312 1 said they could meet the requirements. 2 Three of the letters asked for changes in the 3 effective dates and implementation schedule, which we have 4 addressed. 5 Four of the letters asked for modular approval or 6 component approval, and our proposal does allow for that 7 non-system specific components. 8 One letter from OPW asked that we clarify the 9 certification process time frame, and we will do that after 10 meeting with CAPCOA to set up a memorandum of agreement on 11 the process for review. 12 We got a letter from Containment Solution 13 above-ground storage tank manufacturer, who is unclear on 14 how EVR applies to them, and we will be -- we know that the 15 current regulations we will affect above-ground tanks, 16 because they use Phase 2 equipment, and we will work with 17 them to see what type of effect that has. 18 Arco sent a letter questioning the need for 19 in-station diagnostics for balance systems. I think we 20 showed in our presentation today how pressure monitoring and 21 other monitors will make sure this balance system works 22 effectively as well as assist. 23 Arco also questioned the reason for ISD at high 24 volume stations first, and we have revised our proposal so 25 that the grouping is different. There isn't just a small PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 313 1 group of high throughput stations that gets affected first. 2 It's a larger grouping and then there's a second mid-size 3 grouping and again the third smallest stations is exempt 4 from ISD. 5 We got 11 letters with specific comments to 6 clarify certification and test procedures, and we will be 7 going through those and making changes as warranted and make 8 those available for 15-day public review. 9 Marconi sent a letter objecting to the ARB staff 10 exclusively conducting certification tests. They want to 11 keep the current practice of allowing the equipment 12 manufacturer to conduct a test, and we want to remove the 13 conflict of interest perception between the testing company 14 and the company recertification. So ARB staff would conduct 15 the test or contract with an independent third party to do 16 the testing. 17 We received four letters on the test station 18 criteria saying that a 2,000 gallon per day station is 19 unreasonable. We have modified that to 150,000, going down 20 as low as 100,000 for good cause. 21 We also received several letters saying that 22 extending the test period and increasing the amount of cars 23 from 100 to 200 will not make the system more reliable. We 24 disagree. We think that the extended certification times 25 does allow us more time for evaluating the system. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 314 1 And also under the longer test period we assess 2 the effects of changing the fuel grade from summer to 3 winter. 4 Husky you heard from today about a process for 5 appealing decisions for certification decisions. 6 Glenn County also testified today to extend the 7 ISD exemption to a station with a monthly throughput of up 8 to 40,000 gallons, and we think that would bring in too many 9 stations into the exemption. Right now it's less than five 10 percent. And that would bring it up to 20 percent to exempt 11 at 40,000 gallons a month. 12 Siskiyou County asked to exempt service stations 13 from the EVR requirements altogether. We wanted to respond 14 that districts located in ozone nonattainment areas are 15 required to implement vapor recovery, and if you're an 16 attainment area you just need to meet the vapor recovery for 17 the benzene ATCM, and that would exempt throughputs less 18 than 480,000. 19 We got three letters questioning the basis for the 20 hazardous air pollutant performance standards and 21 specifications and we elaborated that in our presentation 22 that these levels represent an incremental risk of one in a 23 million from the processor. 24 We also got two letters questioning the maximum 25 air to liquid specifications and those are to ensure that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 315 1 when the processor fails it limits the amount of emissions 2 that can occur. 3 Six letters on the uni-hose requirement for 4 multi-product dispenser. We modified our proposal to make 5 that requirement only to new stations or when you change out 6 your dispenser. 7 WSPA sent a letter about the technology review and 8 we have accommodated their request to include all parts of 9 EVR in the technology review, including the ORVR 10 compatibility. 11 Tokheim suggested that we not be involved in 12 warranty issues, but we say that warranty criteria are 13 essential for performance and enforcement standards. 14 One letter suggesting we should develop an online 15 database with warranty information and let the market decide 16 on the equipment choice based on reliability and cost. And 17 we will be developing information on how well systems are 18 performing and make that information available on our Web 19 page. 20 CIOMA, as you heard, has asked for a delay of the 21 public hearing. We would like to make sure this stays on 22 track, and we can go into that a little bit later. 23 Glenn County wants us to work more closely, 24 establish a work committee with the State Water Resources 25 Control Board. We heard testimony today that we already are PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 316 1 meeting regularly with them and see how our programs overlap 2 and want to make sure we minimize impact to the small 3 stations as much as possible. 4 Gilbarco is concerned with Bay Area rule that 5 requires systems to be ORVR compatible and recommending 6 adjustments to their system. And this issue is outside of 7 the scope of the EVR program, and we may have some other 8 comments related to cost. 9 MR. VERGARA: Good afternoon. My name is Floyd 10 Vergara. I'm a staff air pollution specialist. Since I 11 conducted the cost impacts analysis it falls to me to read 12 and respond to the comments related to costs. 13 We've got five letters that we received that had 14 specific comments on costs. A couple of them had comments 15 on the uni-hose requirement. As you heard Cindy mention 16 earlier, that has been addressed with the modification of 17 that requirement to apply only to new facilities or 18 dispenser related modifications. 19 First comment letter we got was from Containment 20 Solutions. Their comment was that the cost and cost 21 effectiveness for above-ground storage tank facilities were 22 not shown in the report. And our response would be that an 23 above-ground storage tank based gasoline facility with low 24 throughput should have similar costs to the facilities with 25 similar throughout that we stated in our report, because PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 317 1 underground storage tanks and above-ground storage tanks 2 control their vapors in substantially similar fashion, using 3 the same engineering principles and the same technologies. 4 The low throughput facilities and their cost were 5 accounted for in the analysis that we presented in the staff 6 report, and so those costs should be similar for similarly 7 situated above-ground storage tank facilities. 8 Also the number of above-ground storage tanks 9 certification were included when we determined the total 10 worst costs number of recertifications that would undergo 11 research and development and certification testing costs. 12 And so the cost effectiveness, we believe, reported for 13 model GDF 1, which is the smallest facilities, should apply 14 for those low throughput above-ground storage tanks. 15 As you heard earlier, we also addressed the ISD 16 application or exemption for the very smallest throughput 17 facilities, and that also applies to above-ground storage 18 tank facilities of similar throughput. 19 The second letter we got was from Wayne Dresser, 20 and they had a comment on the uni-hose and again that's been 21 addressed with the staff proposal. 22 Third comment letter we got was from Data Action, 23 which requested an update on one of the tables that was used 24 in the staff report which presented the input values used in 25 the cost analysis, and their point was that the average PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 318 1 number of nozzles in a service station has dramatically 2 increased since 1991 and we would agree that the average 3 number of nozzles has increased since 1991, and the 1991 4 year is the year in which the US EPA developed their 5 technical guidance for the national rule, and we used some 6 of that information, particularly with the population 7 distribution of service stations in our analysis. 8 However, it appears that the commenter has 9 misinterpreted what we have in the report, because as we 10 discussed in the report what we did was we took the original 11 EPA 1991 data and we updated that to fit what we know is 12 going on in California in terms of the average throughput, 13 which is around 100,000 gallons. 14 So we believe we've already addressed that and 15 we've shown that the number of nozzles has already increased 16 by 30 percent or there about. 17 CIOMA also wrote a comment letter requesting 18 information on the detailed breakdown of costs and we met 19 with them and explained to them what the costs were and we 20 showed them where the costs were presented in the report. 21 And finally we received a comment from Tosco also 22 commenting on the uni-hose requirement and also requesting 23 an update on an updated analysis that would include some 24 items that they felt were missing. Our response to that 25 would be that the items that they requested, such as PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 319 1 equipment installation costs, increased maintenance cost, 2 hand pumps and all those things in their comment letter were 3 already included in the analysis, so we believe we've 4 addressed that comment. 5 CHAIRMAN LLOYD: Thank you very much. 6 Any further comments Mr. Kenny? 7 MR. KENNY: No. 8 CHAIRMAN LLOYD: We'll close the record on this 9 agenda item. However, the record will be reopened when the 10 15-day notice of public availability is issued. Written or 11 oral comments received after this hearing date, but before 12 the 15-day notice is issued will not be accepted as part of 13 the official record on this agenda item. 14 When the record is reopened for a 15-day comment 15 period, the public may submit written comments on the 16 proposed changes, which will be considered and responded to 17 in the final statement of reasons for the regulations. 18 Again, just a reminder to board members on 19 ex parte communications. And are there any ex parte 20 communications at this time? 21 Mr. McKinnon. 22 BOARD MEMBER McKINNON: Yes, Mr. Chairman. I met 23 with the WSPA Refining, Marketing and Transportation 24 Committee on March 8th. Most of the comments have been 25 contained in their remarks today with respect to concern PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 320 1 about costs and moving forward. 2 There was one additional comment that I don't 3 think came up today, and that was from a Mr. McVeigh of 4 Mobil asking how we were going to deal with ethanol in this 5 scenario, and that continues to be a question for me too. 6 So that's the only conversation I had during the 7 45-day period. 8 CHAIRMAN LLOYD: Any other comments from board 9 members? 10 I think I asked staff about the ethanol issue and 11 that is being taken into account as we move ahead. 12 I guess I'll throw it open for discussion at this 13 time. 14 Yes, Supervisor DeSaulnier. 15 BOARD MEMBER DeSAULNIER: Thank you, Mr. Chairman. 16 And I'll try to stay within my three minutes, now 17 that I've seen you run such an efficient meeting. 18 He gets nasty after 3:00 o'clock in the afternoon. 19 I think the rule is generally a good one, and I 20 think the opportunity for the technical review alleviates 21 some of my concerns, but as in comments before, and I think 22 there's some other sympathies for the independent operators 23 and particularly in our economic evaluation on page 234 of 24 our report, 235, it seems somewhat counterintuitive to me 25 that, at least as I said before, the accumulated amount of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 321 1 costs for independents in particular wouldn't have an effect 2 an competitiveness. I don't know if the Energy Commission 3 has ever really, maybe on 73 and 74 since we put multiple 4 pages on these, but it's in the economic analysis. 5 So for the gasoline-dispensing facilities, what 6 I'm interesting in, Michael, is if there's some way, and 7 acknowledging that staff has gone to great lengths to try to 8 accommodate just these kind of fears, but if there's some 9 way we can work with the two organizations that spoke to us 10 today to see if there's any other way. 11 For me it's not for them to be exempted from it. 12 It's not to go to the higher volume to try to exempt more. 13 I think we heard that they want to actually comply with 14 requirements. It's how do we do that and allow them to 15 actually survive and then combine with that. 16 This may be a question for some of our sister 17 agencies, is it seems intuitive that keeping these 18 businesses open helps us with supply and that may not be our 19 purview, but it's the accumulation of all these costs is 20 what I'm concerned with and maybe that's something we have 21 to address to the Energy Commission or someone else. 22 But within the authority that we have, how can we 23 approve this and still keep the dialogue going? You've got 24 four years to implement. 25 MR. KENNY: One of the things that we try to do, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 322 1 because we are sensitive to the fact that they have 2 essentially cumulative costs, is that we originally had a 3 proposal for the Phase 2 vapor recovery requirements to 4 really become effective on April 1st, 2001. 5 So one of the thoughts there was that by 6 essentially extending that effectiveness date to April 1st, 7 2003, what we did is we delayed the start-up of that 8 four-year clock so that four-year clock won't begin until 9 April 1st, 2003, which means that it will now run out until 10 April 1st, 2007. 11 The benefit we saw there was that for those people 12 who have basically installed new equipment in the recent 13 times, and are very concerned about amortizations associated 14 with that particular equipment, we tried to give them as 15 much time as we possibly could, even beyond what the 16 statutory time frame would normally provide. 17 In addition what we tried to do is for those 18 people who are small, we essentially eliminated the 19 requirement of the ISD component, which is an expensive 20 component potentially. 21 And so that was the approach to try to take there 22 to give them as much time as possible to maximum the 23 investment they've already made and take advantage of it and 24 at the same time to keep some costs down for those people 25 who actually have the smaller volumes. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 323 1 In terms of your specific question about what we 2 can do to sort of continue to work with them, this 3 regulation, if adopted by the board today, is going to 4 require an immense amount of work to implement. 5 I think you heard from one of the witnesses today 6 that if the board were to adopt, that really is only step 7 one. 8 The real key to the successful implementation of 9 this is going to be very close working relationship between 10 the Air Resources Board staff, CAPCOA, the stations and the 11 oil companies to ensure that in fact we can get this 12 regulation to be as effective and as reasonably implemented 13 as we possibly can and there will be a huge amount of work 14 that is essentially associated with that. 15 During that process, we will continue to try to do 16 everything we can to make this work as effectively as we can 17 with the different industries and the different stations, 18 but I don't have a perfect answer to your question about 19 what we can do right now beyond what we've already done. 20 BOARD MEMBER DeSAULNIER: I guess maybe just the 21 ongoing dialogue, I don't know if mom and pop gas stations 22 will suffer the same demise as mom and pop hardware stores 23 and bookstores and drug stores and it may have maybe 24 something that's not within any of our controls, but at 25 least the discussion and maybe working with the two PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 324 1 organizations if, I'll speak for myself individually and 2 maybe the board would be interested in pursuing some kind of 3 legislative remedy or some kind of other financing. 4 CHAIRMAN LLOYD: I would like the suggest that 5 maybe I notice in the resolution we have a number of cases 6 where staff is working with WSPA and API and others, be 7 explicitly maybe insert there that we request staff to work 8 with the two organizations CIOMA and the service stations to 9 explore ways of looking at that, as a pull-out as an issue. 10 BOARD MEMBER DeSAULNIER: I'd appreciate that. 11 Thank you. 12 CHAIRMAN LLOYD: Supervisor Roberts. 13 BOARD MEMBER ROBERTS: Yeah. I guess I'm sharing 14 some of the supervisor's concerns. I think the last thing I 15 want to see is at least for me is a reduction in the number 16 of stations. Repeatedly that's been given over the past 17 several years as a reason why there are higher prices in San 18 Diego, and I hate to think that we're adding to that. 19 On the other hand, hearing that solution may be in 20 somehow increasing the tax and distributing that doesn't 21 fall under my comfort zone either. So I think we've got 22 some work. 23 BOARD MEMBER DESAULNIER: After November. 24 BOARD MEMBER ROBERTS: November, about eight years 25 from now. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 325 1 I hope that staff will be sensitive to that and 2 work with them, and I think that the extension of the 3 implementation, the effective date I think is really going 4 to help to at least get over some of the current burden 5 before any of the new costs are heaped on them. 6 CHAIRMAN LLOYD: Yes, Professor Friedman. 7 BOARD MEMBER C.H. FRIEDMAN: I share the concerns 8 expressed here, and it does occur to me that there may be 9 creative ways for tax credits or other kinds of things that 10 could be done to ameliorate, if not completely underwrite or 11 defray some of these costs, given that it has been 12 government that is sort of evolving these standards and fine 13 tuning in the process some of the equipment that was bought 14 in good faith and is in compliance, may not be in compliance 15 because we've changed our standards. 16 But I'd like to think that people of good will, 17 and I mean all of the people that have coalesced to unify 18 more or less in evolving these standards and can maybe help 19 develop some suggestions and ideas for financing or 20 proposals for financing. 21 I wouldn't want to rule that out, and I for one 22 would offer whatever I can contribute to that, as I think I 23 heard some of my colleagues do. 24 But having said that, I do think we have again a 25 time line. I wish there were more time to allow the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 326 1 members, some of the members who apparently have not but 2 lately received some of information that their 3 representatives have been given and involved in 4 participating in developing for the independent operators 5 and others, but I don't see that we can procrastinate 6 further. 7 We have got a lawsuit stipulation, a legal 8 commitment by the end of this month, which is a few days 9 from now, to adopt something, and I think what that 10 represents is much more than something. It's very 11 responsible. 12 And given the technology review built into it, 13 given that there are unknowns and uncertainties and it is 14 technology forcing, concededly, in certain respects, I think 15 given all that it's once again a very complicated, 16 sophisticated and I think a responsible approach. 17 So I'm in favor. 18 CHAIRMAN LLOYD: Yes. Sorry. Mrs. Riordan. 19 BOARD MEMBER RIORDAN: I just want to comment on 20 maybe doing the outreach that we need to do through maybe 21 the ombudsman's office to work with these small, independent 22 owners to help them understand it and then for us to 23 understand what their issues are. I think that's a critical 24 component. 25 Those of you who were on the board at the time PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 327 1 that we promulgated some of regulations and they come into 2 effect, the spike in the costs of gasoline has been 3 tremendous, and had it not been for some of our 4 independents, I don't know where those costs would have 5 gone. I don't think I'll ever forget that, and I'm hoping 6 others won't either. 7 So it's in our interest to help these people. 8 CHAIRMAN LLOYD: We've got a resolution before us 9 and some additions to that, so do I have motion at this 10 time? 11 BOARD MEMBER D'ADAMO: Move the adoption for the 12 resolution. 13 BOARD MEMBER RIORDAN: I'll second the motion. 14 CHAIRMAN LLOYD: That's including then specific 15 help to these organizations and the others -- 16 BOARD MEMBER C.H. FRIEDMAN: In that connection, 17 could I ask, having it being moved and seconded, is there 18 any additional paragraph we should put in this that refers 19 to the concerns that have been presented and expressed, I 20 mean that would help in going before a legislative committee 21 or administration or -- 22 MR. KENNY: What we could do is essentially add a 23 paragraph in there that essentially reflects the level of 24 board concern with regard to the impact on the independents. 25 BOARD MEMBER C.H. FRIEDMAN: They're unknowns. We PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 328 1 aren't quantifying it, but we've heard this and we're 2 concerned about it. I think anybody would share that 3 concern. 4 MR. KENNY: What I will suggest is then simply a 5 whereas clause that simply reflects that concern and we will 6 add that in. 7 CHAIRMAN LLOYD: Thank you. 8 With that, take a vote here. All in favor say 9 aye. 10 (Ayes.) 11 CHAIRMAN LLOYD: Anybody against? 12 (No response.) 13 CHAIRMAN LLOYD: Thank you. 14 Again, thank you very much, staff. 15 And again thank you for the witnesses for 16 commenting in the time. 17 And we'll take a five-minute break before we go to 18 the last item of the day. 19 (Thereupon a short recess was taken.) 20 CHAIRMAN LLOYD: The next item on the agenda today 21 is 00-3-3, public meeting to consider area designation 22 recommendations for the new federal eight hour ozone 23 standard. 24 Mr. Kenny, would you like to introduce the item? 25 MR. KENNY: I think what I'll do is just simply PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 329 1 turn it directly over to staff. 2 CHAIRMAN LLOYD: Good move. Thank you. 3 DR. VELASCO: Thank you. Thank you, Mr. Kenny. 4 Chairman Lloyd, and honorable board members, good 5 afternoon. 6 I will be presenting our proposal for area 7 designations, which are the levels of attainment and 8 nonattainment. 9 The primary goal of ambient air quality standards 10 is to protect public health. 11 Human health studies indicate that multi-hour 12 ozone exposures at lower levels also resulted in the same 13 types of adverse health effects experienced in one-hour 14 exposure. 15 Based on these studies, US EPA established the new 16 eight-hour ozone standard in July 1997. 17 The eight-hour standard did not replace the 18 existing one-hour standard, but it supplemented it. 19 In May 1999 an appeals court for the District of 20 Columbia placed the eight-hour ozone standard on hold, 21 pending further clarification from US EPA on how it selected 22 the specific level of the standard. 23 US EPA cannot implement the standard, but the 24 court noted that the US EPA can make designations to fulfill 25 its statutory obligations. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 330 1 Under federal law, US EPA is required to finalize 2 area designations for the eight-hour ozone standard by July 3 2000. 4 To ensure that California's views are considered 5 when US EPA proceeds with designations, we are proposing 6 area designations recommendations now. 7 Our recommendations for area designations are 8 based on air quality data, geography, existing nonattainment 9 boundaries and political jurisdiction. 10 Our initial proposal was released in March 1999. 11 We held a workshop in May 1999 with 12 recommendations very similar to the ones in front of you 13 today. 14 This map shows our recommendations. 15 Areas that are already nonattainment for the 16 federal one-hour ozone standard are presented in solid teal, 17 while new federal ozone nonattainment areas are shown with 18 teal cross-hatching. 19 Attainment areas are in light blue. 20 The five new nonattainment areas for the 21 eight-hour ozone standard are located in Northern 22 California. They are Shasta County, Tehama County, western 23 Nevada County, the central mountain counties consisting of 24 Amador and Calaveras, and the southern mountain counties, 25 including Tuolumne and Mariposa. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 331 1 In our staff report we had proposed grouping the 2 four central and southern mountain counties together. After 3 further discussion with the counties, they requested that we 4 split the central and southern regions out. Because we 5 expect these two regions to attain in different time frames 6 based on the patterns of support we supported this request 7 and are proposing this change. 8 The San Francisco Bay Area, Sacramento region and 9 San Joaquin Valley, already nonattainment for the one-hour 10 standard, also do not attain the eight-hour standard. 11 Moving to Southern California, all eight-hour 12 nonattainment areas already violate the one-hour federal 13 standard. However, we are proposing some boundary changes 14 to better align nonattainment areas with air agency 15 jurisdictions. 16 Lastly, because there are little monitoring data 17 in the far eastern portion of Riverside and San Bernardino, 18 we plan to initiate special purpose monitoring in the 19 eastern desert to determine the extent of ozone pollution in 20 the area. 21 We will work with the districts, US EPA and 22 interested stakeholders to expand these nonattainment areas 23 of property. 24 Two issues regarding area designations and 25 boundaries merit further discussion. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 332 1 First, we are recommending that the Sutter and 2 Yuba Counties be considered attainment for the eight-hour 3 standard. We disagreed with EPA regarding the use of 4 special purpose monitor atop the Sutter Buttes to make a 5 nonattainment designation. We don't believe it is 6 appropriate. EPA does. 7 However, EPA management in Region 9 has been 8 receptive to limiting the size of the nonattainment area to 9 just the 2,000-foot elevation represented by the Sutter 10 Buttes monitor. They indicate this limited nonattainment 11 area would not be subject to control requirements and would 12 not have to develop a local plan. 13 Second, the National Parks Service has requested 14 that all Joshua Tree National Park, located in the Coachella 15 Valley, be included in a nonattainment area. Part of the 16 park is already included in the nonattainment area. We do 17 not believe that there is sufficient data to change the 18 proposed boundary, which corresponds to the existing 19 one-hour ozone nonattainment area. 20 The monitors around the park are either in 21 different air basins or are separated from the eastern 22 portion of the park by mountain ranges. 23 The special purpose monitoring in the eastern 24 desert we discussed earlier will help determine whether to 25 expand the nonattainment area to include the whole park or PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 333 1 beyond. 2 In the meantime, upwind sources in the South Coast 3 Air Basin and Coachella Valley that impact air quality in 4 the park are already being controlled as part of our 5 existing ozone strategies. 6 Under the Clean Air Act, nonattainment areas must 7 prepare and implement state implementation plans, or SIPs, 8 to reduce emissions and meet the air quality standard. 9 SIPs will rely on two new air quality field 10 studies to provide information about transport. These 11 models will be used to develop California Clean Air Act 12 plans in 2003, including attainment demonstrations for the 13 state ozone standard, as well as the eight-hour ozone SIP. 14 In conclusion, we recommend that the board approve 15 staff's proposed area designations for the federal 16 eight-hour ozone standard, including the amendments 17 splitting the central and southern mountain counties 18 nonattainment areas, and direct staff to transmit these 19 recommendations to US EPA. 20 With that, we would be happy to take any 21 questions. 22 CHAIRMAN LLOYD: Thank you very much. 23 Board have any questions? 24 Not at this time. 25 We have one witness signed up to testify, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 334 1 Mr. Bruce Polkowsky from the National Park Service. 2 MR. POLKOWSKY: Thank you, Mr. Chair. My name is 3 Bruce Polkowsky. I'm with the Air Resources Division of the 4 National Park Service based in Denver. I'm here today for 5 two reasons. 6 First, in my national capacity to agree with the 7 designations as they include Yosemite and Sequoia National 8 Parks where we think there is, it reflects our understanding 9 of the ozone conditions there. 10 But more importantly, and secondly, I'm here today 11 at the specific request of Joshua Tree National Park and the 12 staff there and superintendent to restate our belief that 13 Joshua Tree National Park should be designated as 14 nonattainment. 15 We have federal reference methods monitoring 16 that's been there and there's a letter that you have in 17 front of you, I believe, documenting our case. But I'll go 18 over a few keys points. 19 We have federal reference monitoring data that 20 clearly shows the park exceeds the eight-hour ozone 21 standard. 22 And then we can also use and believe we can use 23 passive sampling to supplement the geographic scope that 24 would include the entire park and we think that essentially 25 this is in fairness to the 1.4 million visitors and people PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 335 1 who work at the park that they should understand that this 2 area does not meet the eight-hour ozone standard. 3 And that's really the thrust of my comments, and 4 I'll entertain questions about the letter. 5 CHAIRMAN LLOYD: Generally, of the parks in 6 California, do you require any special, in terms of the 7 vehicles entering the park, any low emission vehicles, zero 8 emission vehicle requirements in the parks? 9 MR. POLKOWSKY: In terms of vehicles entering the 10 park for visitors, no. In terms of vehicles that the park 11 employs, and particularly Joshua Tree Park, has switched to 12 natural gas vehicles recently for, I believe, their entire 13 fleet, have also gone to remove diesel generators and put in 14 solar energy. So the Park Service has a very active program 15 to reduce emissions from activities generated by the Park 16 Service. 17 But in terms of specific vehicle entries, it would 18 be very difficult to do that. 19 CHAIRMAN LLOYD: And staff certainly they want to 20 get some more data, monitoring data themselves, before you 21 go ahead. 22 Questions from the board? 23 BOARD MEMBER RIORDAN: Well, Mr. Chairman, as you 24 know, this is an area that I have served in the past and 25 while I understand the absolute need and necessity for clean PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 336 1 air for particularly these beautiful recreation areas, I 2 also believe that we do need the sound science. 3 And speaking not only from what the staff has 4 shared with me, the local air district is very interested in 5 providing that sound science. We just think we need to take 6 that next step, which is to do the monitoring and then it 7 may indeed bring us to the conclusion that the whole park 8 should be designated. 9 But until that time I think I have to agree with 10 the staff and understand that where your desires are, but 11 also where the science is. 12 MR. POLKOWSKY: I would encourage the staff then 13 to work with us, because we do monitoring within the park 14 that clearly meets the reference method requirements. So we 15 would like to coordinate to ensure that appropriate 16 designation is made. 17 BOARD MEMBER RIORDAN: I am sure they'll 18 coordinate with you with that interest. 19 CHAIRMAN LLOYD: Thank you very much. Thank you 20 for coming. 21 Are there any written comments that need to be 22 submitted for the record? I know the Park Service covered 23 that and I think we have maybe some others. 24 MS. CHANG: My name is Edie Chang. 25 We have three letters from folks who did not come PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 337 1 and testify. 2 The first letter is a comment from the EPA. They 3 reiterate the Park Service's concern about including Joshua 4 Tree in a nonattainment area, which we have already 5 discussed. 6 The second issue that EPA brings up is the Sutter 7 Buttes, as we've already discussed, but we disagree on how 8 we should use the monitoring data aloft. 9 They do agree with the Air Resources Board and 10 they've reiterated their position that there will be no 11 burden on the local air districts in that area. 12 EPA also mentioned a concern about making sure 13 that the Air Resources Board submits coordinated plans for 14 the Northern and Southern California regions and that the 15 attainment demonstrations for both upwind and downwind areas 16 all mesh together and match, and we will work with EPA to 17 make sure that is what happens. 18 And then there are a couple other small technical 19 issues that we will work on with EPA. 20 We also have a letter from the National Park 21 Conservation Association also mentioning the Joshua Tree 22 issue. Substantially the same concerns that the Park 23 Service and EPA have mentioned. 24 And lastly we have a letter from the Southern 25 California Association of Governments. They asked the Air PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 338 1 Resources Board to formally request EPA to modify the 2 one-hour ozone nonattainment boundaries to match the 3 eight-hour boundaries to simplify their transportation 4 conformity analyses and we will do that in our transmittal 5 of this information to US EPA. 6 CHAIRMAN LLOYD: Any further? 7 MS. CHANG: We had a couple other letters which 8 came in somewhat before the report came out. 9 One was from Northern Sierra Air Quality 10 Management District requesting a slight boundary change. We 11 discussed this with them. They wanted to move the boundary 12 from the crest of the Sierra, and we spoke with them about 13 why we did not think there was a technical justification for 14 that. 15 And the last letter is from the Kern County Air 16 Pollution Control District and they were supportive of the 17 staff proposal. 18 CHAIRMAN LLOYD: Thank you very much. 19 Any further comments? 20 MR. KENNY: No. 21 CHAIRMAN LLOYD: Since this is not a regulatory 22 item, it is not necessary to officially close the record. 23 However, we do have a resolution before the board, 24 or maybe we have some more discussion from the board 25 members. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 339 1 If we don't, I would entertain a motion on the 2 resolution. 3 BOARD MEMBER RIORDAN: I don't know if there's any 4 more discussion, Mr. Chairman. I'm prepared to move the 5 item. 6 BOARD MEMBER McKINNON: I'll second. 7 CHAIRMAN LLOYD: All in favor say aye. 8 (Ayes.) 9 CHAIRMAN LLOYD: No negatives. 10 Thank you. 11 The final item is go to the open comment period 12 and we have ten people signed up to comment in this area. 13 BOARD MEMBER RIORDAN: You're going to listen to 14 them; right? 15 CHAIRMAN LLOYD: However, I decided to ignore 16 them. 17 With that, we'll officially close the meeting for 18 today. 19 Thank you all. 20 (Thereupon the meeting was adjourned 21 at 5:50 p.m.) 22 23 24 25 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 340 1 CERTIFICATE OF SHORTHAND REPORTER 2 3 I, JANET H. NICOL, a Certified Shorthand Reporter 4 of the State of California, do hereby certify that I am a 5 disinterested person herein; that I reported the foregoing 6 meeting in shorthand writing; that I thereafter caused my 7 shorthand writing to be transcribed into typewriting. 8 I further certify that I am not of counsel or 9 attorney for any of the parties to said meeting, or in any 10 way interested in the outcome of said meeting. 11 IN WITNESS WHEREOF, I have hereunto set my hand 12 this 31st day of March 2000. 13 14 15 16 Janet H. Nicol 17 Certified Shorthand Reporter License Number 9764 18 19 20 21 22 23 24 25 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345