On July 27, the California Air Resources Board (ARB) passed new regulations intended to reduce emissions of particulate matter (PM) and nitrous oxide (NOx) from off-road diesel engines.  The regulations require businesses to retrofit or "turn over" their fleets over time.  A summary of these regulations was posted on June 15.  The final version of the regulations contains a few noteworthy revisions, summarized below:

•           Based on the final version, "alternative diesel fueled off-road compression ignition engines" are covered by the regulations if they are greater than 25 horsepower.

•           The final version changes the definition of a "small fleet" for purposes of emissions calculations.  A "small fleet" is now any fleet with total HP of 2,500 or less (earlier proposed rule was 1,500 HP or less).  A large fleet remains that with a total HP equal or greater than 5,000, and a medium fleet is any fleet that is not large or small.

•           The final version includes a very detailed procedure for appealing adverse decisions to the ARB, and includes provisions for notice, written objections and hearings.

•           The final version has standards regarding the use of gasoline-powered vehicles to replace diesel vehicles (earlier proposals did not include such a provision).  Those standards are set forth below:

            "Gasoline-Powered Vehicles Used to Replace Diesel Vehicles – Fleets may include a gasoline-powered vehicle of 25 horsepower or greater that replaces a diesel vehicle on or after January 1, 2007 in their fleet average only if all the following conditions are met:

                                               i                        The owner can identify the diesel vehicle that the gasoline-powered vehicle replaced and show that the diesel vehicle was retired from the fleet within 6 months of the date that the gasoline-powered vehicle was added to the fleet.

                                             ii                        The gasoline-powered vehicle serves the same function as the diesel vehicle that it replaced and is of similar horsepower.

                                            iii                        The fleet would continue to be in compliance with the fleet average emission level requirements for large spark ignition engine fleets in Ttitle 13, CCR, section 2775.1 if the gasoline-powered vehicle that replaces a diesel vehicle were excluded from the large spark ignition average.

                                           iv                        The owner must demonstrate the gasoline-powered vehicle is certified to a NOx standard less than or equal to the Tier 1 NOx standard for the same horsepower in title 13, CCR, Section 2423(b)(1)(A) and less than or equal to the NOx emissions of a diesel engine of the same model year and horsepower.

            If qualified, the gasoline-powered vehicle may use a diesel PM emission factor of zero (0), and a NOx emission factor equal to the vehicle’s HC+NOx certified emission standard in g/bhp-hr multiplied by 0.95."

•           The emissions tables for large, medium and small fleets have been slightly revised, with compliance levels starting in 2010 for large fleets, 2013 for medium fleets, and 2015 for small fleets.  The new charts are as follows:

Table 1 – Large and Medium Fleet NOx Targets
For Use in Calculating NOx Target Rates [g/bhp-hr]

Table 2 – Large and Medium Fleet PM Targets
For Use in Calculating PM Target Rates [g/bhp-hr]

Table 3 – Small Fleet PM Targets
For Use in Calculating PM Target Rates [g/bhp-hr]

For further information please contact Randolph C. Visser and Olivier F. Theard. Randy Visser is a partner in the Construction, Environmental, Real Estate and Land Use Litigation Practice Group in the firm’s Los Angeles office. Olivier Theard is an associate in the Business Trial Practice Group and the Environmental and Construction Practice Group in the firm’s Los Angeles office.