State of California

AIR RESOURCES BOARD

Third Notice of Public Availability of Modified Text

PUBLIC HEARING TO CONSIDER THE PROPOSED AMENDMENTS TO THE REGULATION FOR THE STATEWIDE PORTABLE EQUIPMENT REGISTRATION PROGRAM

Public Hearing Date: February 26, 2004

First Public Availability of Modified Text Date: May 13, 2004

Deadline for Public Comment: June 1, 2004

Second Public Availability of Modified Text Date: December 17, 2004

Deadline for Public Comment: January 1, 2005

Third Public Availability of Modified Text Date: May 6, 2005

Deadline for Public Comment: May 21, 2005

This notice provides an opportunity for public comment on modifications the Air Resources Board (ARB or the "Board") proposes to make to the proposed amendments to the Regulation for the Statewide Portable Equipment Registration Program (Statewide Regulation or Statewide Program).

At a public hearing on February 26, 2004, the Board approved the adoption of proposed amendments to the Statewide Regulation. The Statewide Regulation is contained in title 13 of the California Code of Regulations (CCR) commencing with section 2450. The amendments to the Statewide Regulation as proposed to the Board are described in detail in the Staff Report: Initial Statement of Reasons (ISOR), which was released to the public on January 9, 2004.

At the hearing, staff presented and the Board approved the proposed amendments with modifications to the originally proposed language in response to comments received during the public comment period that began on January 9, 2004. As a result, the first Notice of Public Availability of Modified Text 15-Day Change Notice) was issued for public comments beginning on May 13, 2004 and ended June 1, 2004.

The Board also directed staff to work with the California Air Pollution Control Officer’s Association (CAPCOA) and affected parties to establish a uniform statewide fee schedule for the recovery of the reasonable cost of enforcement of the Statewide Regulation by the air pollution control and air quality management districts (districts). Based on comments from stakeholders, along with other considerations, ARB staff proposed modifications to the Statewide Regulation that would increase the district fee schedule. Therefore, the Second Notice of Public Availability of Modified Text and Availability of Additional Information 15-Day Change Notice) was issued for public comments beginning on December 17, 2004 and ended January 1, 2005. After considering the public comments and the potential impacts to the affected parties, ARB staff withdrew the proposal that was described in the 2nd 15-Day Change Notice and will start a new regulatory effort this year with all affected parties to address the district fee issue.

On January 7, 2005, ARB staff submitted the Final Statement of Reasons for Rulemaking, Including Summary of Comments and Agency Responses--Public Hearing to Consider the Adoption of Proposed Amendments to the Regulation for the Statewide Portable Equipment Registration Program to the Office of Administrative Law (OAL) for approval. OAL issued a Decision of Disapproval on February 25, 2005. This Decision requires ARB to take certain actions within 120 days or commence new rulemaking. The changes proposed in this notice by ARB staff respond to OAL’s Decision.

The proposed modifications. To clarify an obsolete reference, ARB staff proposes to delete the wording in section 2451(a) that refers back to section 2452(d).

ARB staff proposes to modify subsection 2451(c)(9) to allow registered portable engines to be used during electrical upgrades that do not exceed sixty calendar days. In addition, the modifications would allow generators used in operations where only generators can supply the necessary voltage, frequency, or electrical current requirements to be eligible for registration in the Statewide Program.

In section 2452(e), ARB staff added a definition for "Electrical Upgrade" to mean replacement or addition of electrical equipment and systems resulting in increased generation, transmission, and/or distribution capacity.

In section 2458(e), ARB staff proposes to require owners and operators of portable engines used in electrical upgrade operations to maintain daily records including the location of operation, the month, date and year at the location, and hours of operation.

ARB staff proposes to delete proposed subsection 2451(c)(5), which was intended to clarify the existing authority of the Executive Officer to determine what uses of portable engines or equipment units require permits from the districts and therefore would not qualify for registration under the Statewide Program.

Also deleted in subsection 2451(c)(5) are examples of portable equipment uses that would not qualify for registration. In its place, ARB staff proposes to add subsection 2451(c)(6) through (c)(9), which list specific uses of portable engines or equipment units that are ineligible for registration under the Statewide Program

ARB staff proposes to move subsection 2451(c)(5)(E) back to its original place in the existing Statewide Regulation, now renumbered as section 2451(c)(3). This provision makes the registration of equipment units ineligible under the Statewide Program if the Executive Officer determines that the equipment unit is part of a stationary source permitted by a district. In addition, ARB staff proposes to add language in subsection 2451(c)(3) to preclude engines associated with equipment units from being eligible for registration in the Statewide Program if the equipment unit is ineligible.

Under the current Statewide Regulation, applicants are not required to select a home district for their portable engines or equipment units. In the 1st 15-Day Change Notice, ARB staff proposed in section 2452(k) to define "Home District" to mean the district designated by the responsible official of the portable engine or equipment unit in which portable equipment operates most of the time. To increase flexibility, ARB staff proposes to revise the definition of "Home District," now located in section 2452(l), to mean the district designated by the responsible official of the portable engine or equipment unit in which portable equipment resides most of the time, rather than where it operates most of the time.

Five sections of the proposed amended Statewide Regulation contain language that indicates that requirements apply or do not apply to a person who held, or did not hold registration "prior to the effective date of the amendments to this article." After publication in the CCR, those references may be confusing to the reader. Therefore, ARB staff has indicated in sections 2452(j), 2452(u), 2456(j), 2458(b)(6)(A) and 2458(b)(6)(B) that the effective date of the amendments will be inserted by OAL.

ARB staff proposes to modify section 2456(d) by adding the word "shall" before the phrase "meet the most stringent emissions standard."

To clarify that daily records are required only on days the portable equipment is operated, ARB staff is proposing to modify section 2458(b) by adding the phrase "each day of operation". Section 2458(b) now reads "…including engines otherwise preempted under section 209(e), or portable equipment unit shall maintain daily records for each day of operation of each registered portable engine and equipment unit." The modification would reduce the burden of having to maintain daily records for days the portable equipment is idle and not operated.

Subsection 2457(b)(3)(F) contains a small text discrepancy as compared to the current CCR. ARB staff proposes to add the words in strike out text "there are" to ensure they are removed from the regulation by the publisher.

In addition, ARB staff is proposing a change in section 2463(d) where the words "hearing officer" are to be replaced with "Executive Officer." The proposed change is being made to be consistent with the entire section where the Executive Officer for just cause may suspend or revoke a registration for the listed circumstances.

The text of the modified regulatory language is included as Attachment 1 and contains the amendments as approved by the Board at the February 26, 2004, hearing and set forth in the 1st 15-Day Change Notice. The additions are shown in underline and deletions are shown in strikeout. No changes from the 2nd 15-Day Change Notice are proposed to the Statewide Regulation. Public comments to 1st and 2nd 15-Day Change Notices are not being accepted since those comment periods have closed.

With this notice, the modified regulation as set forth in the 3rd 15-Day Change Notice is being made available for public comment prior to the final action by the Board’s Executive Officer. In the 3rd 15-Day Change Notice, additions are shown in bold underline and deletions are shown in bold strikeout format, respectively. Only public comments pertaining to the additions and deletions as described in the 3rd 15-Day Change Notice shall be considered by the Executive Officer.

In accordance with section 11346.8 of the Government Code, the Board directed the Executive Officer to adopt amendments to sections 2459-2466, title13, CCR, after making them available to the public for comment for a period of at least 15 days, provided the Executive Officer consider such written comments as may be submitted during this period, make such modifications as may be appropriate in light of the comments received, and present the modified regulation to the Board for further consideration if warranted.

The regulatory documents for this rulemaking are available online at the following ARB internet site: http://www.arb.ca.gov/regact/portreg/portreg.htm.

Written comments on the proposed modifications may be submitted by postal mail, electronic mail, or facsimile as follows:

Postal mail is to be sent to:

In order to be considered by the Executive Officer, comments must be directed to the ARB in one of the three forms described above and received no later than 5:00 p.m. on May 21, 2005, in order to be considered by the Executive Officer prior to final action. Only comments relating to the modifications as described in this 3rd 15-Day Change Notice shall be considered by the Executive Officer.

 

Attachments

Attachment 1

Regulation to Establish a Statewide Portable Equipment Registration Program

Amend Article 5, sections 2451, 2452, 2453, 2454, 2455, 2456, 2457, 2458, 2459, 2460, 2461, 2462, 2463, 2464, 2465, 2460, 2461, 2462, 2463, 2464, 2465, and Repeal section 2466, Title 13, California Code of Regulations to read as follows:

Note: The amendments to the regulation as adopted in Executive Order G-04-076 on January 7, 2005, are shown in underline to indicate additions, and strikeout to indicate deletions from the regulation text. These additions and deletions reflect the amendments approved by the Air Resources Board (ARB or Board) at its February 26, 2004 hearing and modified as part of the 1st 15-Day Change Notice which have been made available for public comments previously and additional comments are not being accepted. These amendments were disapproved February 9, 2005 by the Office of Administrative Law (OAL), which issued its Decision of Disapproval on February 25, 2005.

In response to OAL’s disapproval, newly proposed additions and deletions to the regulation text is shown in this Attachment 1 to the 3rd 15-Day Change Notice. The proposed new additions are shown in bold underline and the proposed deletions are shown in bold strikeout format, respectively. Only comments related to the changes in the 3rd 15-Day Change Notice are being accepted by ARB staff.

Article 5. Portable Engine and Equipment Registration

 

§ 2450. Purpose.

These regulations establish a statewide program for the registration and regulation of portable engines and engine-associated equipment (portable engines and equipment units) as defined herein. Portable engines and equipment units registered under the

Air Resources Board program may operate throughout the State of California without authorization (except as specified herein) or permits from air quality management or air pollution control districts (districts). These regulations preempt districts from permitting, registering, or regulating portable engines and equipment units, including equipment necessary for the operation of a portable engine (e.g. fuel tanks), registered with the Executive Officer of the Air Resources Board except in the circumstances specified in the regulations.

NOTE: Authority cited: Section 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b), and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2451. Applicability.

[Note: Under section 209 (e)(1) of the federal Clean Air Act [42 U.S.C. 7543 (e)(1)], California is preempted from establishing emission standards or other requirements related to the control of emissions (other than in-use operational controls) for new engines under 175 horsepower used in farm and construction operations, as defined by the U.S. EPA in 40 Code of Federal Regulations (CFR) Part 85, Subpart Q, Section 85.1601 et seq. [see 59 Fed. Reg. 36969 (July 20, 1994)]. Federal preemptions should only affect engines less than 175 brake horsepower used in construction operations because California law exempts agricultural operations from permit and registration programs as stated in section (c)(2) below. Accordingly, references to the federal preemptions as they apply to this regulation will refer to requirements for construction equipment using engines less than 175 brake horsepower.

See Engine Manufacturers Association v. EPA (88 F.3d 1075 [D.C. Cir. 1996]). Under section 209 (e)(2) [42 U.S.C. 7543 (e)(2)] of the CAA, California is required to receive authorization from the U.S. EPA prior to enforcing its regulations for nonroad equipment not otherwise preempted under section 209 (e)(1). See Engine Manufactures Association, (supra). To date, ARB has received authorization for regulations covered in Title 13, California Code of Regulations sections 2400-2407 (see 54 Fed. Reg. 37440 [July 20, 1995]) and sections 2420-2427 (see 59 Fed. Reg. 48981 [September 21, 1995]).]

(c)The following are not eligible for registration under this program:

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2452. Definitions.

[Note: The period during which the engine or equipment unit is maintained at a storage facility shall be excluded from the residency time determination.]

[Note: The owner or operator shall provide sufficient documentation to prove the portable engine's residency to the satisfaction of the Executive Officer. Examples of adequate documentation are valid permits issued by a district, tax records, and usage or maintenance records. With the exception of section 2456 (e)(8) of this regulation, an equivalent or identical replacement engine replacing a registered resident engine shall be treated as a resident engine.]

[Note: For the purposes of this regulation a stationary source and nonroad engine are mutually exclusive.]

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2453. Application Process.

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2454. Registration Process.

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2455. General Requirements.

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2456. Engine Requirements

[Note: An owner or operator may revise a compliance plan by submitting a modified plan to the Executive Officer at least 30 calendar days prior to the date of replacing or modifying the portable engine. The modified compliance plan shall not extend the temporary exemption from daily and annual emission limits for the registered portable engine beyond the applicable time frame allowed. Misrepresentation of portable engine information in the compliance plan or failure to comply with an approved compliance plan may result in the registration being revoked and the owner or operator being subject to penalties.]

(4)for registered portable engines operating within STW:

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

Table 1 Compression-ignition Engine Requirements*

Rated Brake Horsepower

Resident Engine

Non-resident Engine

50-116


810 ppmdv NOx (10.5 g/bhp-hr)** or turbocharger or 4-degree injection timing retard***

770 ppmdv NOx (10.0 g/bhp-hr)** or turbocharger and 4-degree injection timing retard***

 117-399


770 ppmdv NOx (10.0 g/bhp-hr)** or turbocharger and aftercooler/intercooler or 4-degree injection timing retard***

550 ppmdv NOx (7.2 g/bhp-hr)** or turbocharger and aftercooler/intercooler and 4-degree injection timing retard***

400-749


550 ppmdv NOx (7.2 g/bhp-hr)** or turbocharger and aftercooler/intercooler or 4-degree injection timing retard***

535 ppmdv NOx (7.0 g/bhp-hr)** or turbocharger and aftercooler/intercooler and 4-degree injection timing retard***

750+


550 ppmdv NOx (7.2 g/bhp-hr)** or turbocharger and aftercooler/intercooler or 4-degree injection timing retard***

535 ppmdv NOx (7.0 g/bhp-hr)** or turbocharger and aftercooler/intercooler and 4-degree injection timing retard***

*These requirements are in addition to requirements of sections 2455 and 2456.

Table 21 Spark-ignition Engine Requirements*

 Engine Status

Pollutant Emission Limits or Control Technology

NOx**

VOC**

CO**

Resident

213 ppmdv NOx

(4.0 g/bhp-hr)

or three-way catalyst***

or 15 lbs/day (except in the SCAQMD)

800 ppmdv VOC

(5.0 g/bhp-hr)

or three-way catalyst***

or 25 lbs/day (except in the SCAQMD)

17,600 ppmdv CO

(200 g/bhp-hr)c

or three-way catalyst***

or 550 lbs/day (except in the SCAQMD)

Non-Resident

80 ppmdv NOx

(1.5 g/bhp-hr)
240 ppmdv VOC

(1.5 g/bhp-hr)
176 ppmdv CO

(2.0 g/bhp-hr)

*These requirements are in addition to requirements of section 2455 and 2456.

§ 2457. Requirements for Portable Equipment Units

(5)Tub grinders and trommel screens:

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2458. Recordkeeping and Reporting.

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2459. Notification.

(1)the registration number of the portable engine(s) or equipment unit(s);

 

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2460. Testing.

Particulate Matter: ARB Test Method 5 with probe catch and filter catch only

VOC: ARB Test Method 100 or U.S. EPA Test Method 25A

NOx: ARB Test Method 100 or U.S. EPA Test Method 7E

Carbon Monoxide: ARB Test Method 100 or U.S. EPA Test Method 10

Oxygen: ARB Test Method 100 or U.S. EPA Test Method 3A

Gas Velocity and Flow Rate: ARB Test Method 1 & 2 or U.S. EPA Test Method 1 2

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2461. Fees.

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

Table 32 Registration and Renewal Fees for Statewide Registration Program

(Fees are per registered unit except where noted otherwise)

1

Initial Registration $90.00

a

existing program participants until 12/31/05; all applicants thereafter (3 year cycle) $270.00

b

existing program participants until 12/31/05; all applicants thereafter (5 year cycle) $450.00

c

new program participants until 12/31/05, except applicants that lost permit exemption (3 year cycle) $370.00

d

new program participants until 12/31/05, except applicants that lost permit exemption (5 year cycle) $550.00

2

Tactical support equipment, initial registration

a

Registration of first 25 units (or portion thereof) $1,500.00750.00

b

Registration of every additional 50 units (or portion thereof) $1,500.00750.00

3

Non-operational portable engines or equipment units

a

Without initial evaluation $30.00

b

With initial evaluation $60.00

43

Change of status from non-operational to operational

a

Where initial evaluation has not been previously completed $60.00 180.00

b

Where initial evaluation has been previously completed $30.00 90.00

54

Identical replacement $15.00 75.00

6

Equivalent replacement (treated as a new registration, fees are the same as above for new registration)

7

Renewal

a5

Renewal Every 3 years, non-TSE per registered portable engine or equipment unit $90.00

a

Every 3 years $225.00

b

Every 5 years $375.00

b

Pro-rated yearly per registered portable engine or equipment unit $30.00

c

Non-operational 3 years (prorated @ $10/year) per registered portable engine or equipment unit $30.00

d

Change of status from operational to non-operational plus non-operational renewal $45.00

8

Renewal for tactical support equipment

a

first 25 units (or portion thereof) $750.00

b

every additional 50 units (or portion thereof) $750.00

96

Penalty fee for late renewal payments, non-TSE per registered portable engine or equipment unit

a

30-60 days after receiving renewal noticePostmarked within 2 calendar months prior to registration expiration date $15.00 45.00

b

60-90 days after receiving renewal noticePostmarked within the calendar month prior to registration expiration date $30.00 90.00

c

90 days after receiving renewal noticePostmarked after the registration expiration date $45.00 250.00

7

Annual TSE inventory fee

a

first 25 units (or portion thereof) $375.00

b

every additional 50 units (or portion thereof) $375.00

108

Modification to registered portable engine or equipment unit $15.00 75.00

119

Change of ownership per registered portable engine or equipment unit $15.00 75.00

1210

Replacement of registration identification device $10.00 30.00

11

Correction to an engine or equipment unit description $45.00

12

Update company information, copy of registration documents $45.00

13

Copy of registration documents $45.00

134

District inspection fee per registered portable engine or equipment unit inspected $75.00

§ 2462. Duration of registration.

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 

§ 2463. Suspension or revocation of registration.

NOTE: Authority cited: Sections 39600-, 39601, 41752-, 41753, 41754, 41755, 43013(b) and 43018, Health and Safety Code. Reference: Sections 41750-, 41751, 41752, 41753, 41754, and 41755, Health and Safety Code.

 § 2464. Appeals.