ARB Initiates Potentially Controversial Agricultural Equipment Regulation

by Sheppard Mullin Richter & Hampton LLP
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[authors: Olivier Theard and Whitney Hodges]

I. Background

The California Air Resources Board (“ARB”) recently commenced development of a new regulation targeting emissions from “off-road” agricultural equipment, such as tractors and combines. The “In-Use Self-Propelled Off-Road Mobile Agricultural Equipment Regulation” is intended to help the State attain federal air quality standards. ARB officials claim the rule is a necessary tool in employing the upcoming ozone and particulate matter state implementation plans (“SIPs”), initiated in 2007.

The goal of the Mobile Agricultural Regulation is to encourage companies to accelerate fleet turnover and purchase equipment with engines meeting cleaner standards for oxides of nitrogen (“NOx”) and particulate matter (“PM”). According to ARB, NOx emissions from a single “Tier 0” engine (i.e. a “dirty” engine) used in most off-road agricultural equipment are equivalent to the emissions from thirty-one “Tier 4” engines, the cleanest engines under the proposed new regulation. Moreover, it takes thirty-six Tier 4 engines to generate the amount of PM emitted by a single Tier 0 engine. ARB staff has indicated that the rule would target diesel engines used in farming tractors, cotton-pickers, harvesters, combines, forklifts and other off-road equipment. ARB envisions the proposed regulation would be similar to ARB’s existing off-road rule for construction equipment (more information here).

II. Development Process

This month, ARB launched a series of public workshops. Starting in Fresno on September 6th and Sacramento on September 18th, ARB held forums and gave presentations which disclosed concepts for the development of the Mobile Agricultural Regulation. According to the presentation given at these workshops, ARB is working with representatives from the agricultural industry on developing an emissions inventory for this sector in order to gain a thorough understanding of the equipment, its usage and its actual emissions. The presentation also demonstrated ARB’s efforts in obtaining complete, well-documented financial information to help supplement an economic analysis to be used in formulating the regulation. ARB states that it still needs “farm-level” economic data in addition to the “industry-level” data it has already obtained for its economic assessment.

The presentation used in Fresno and Sacramento can be viewed here. The September/October 2012 workshop schedule can be viewed here.

The workshops thus far have been attended by many farmers, who have indicated that ARB should bring engine manufacturers into the process. Farmers argued this inclusion is necessary because Tier 4 engines for farming equipment are not going to be available any time soon and PM filters may not be feasible in certain farming applications. It has yet to be determined whether the Mobile Agricultural Regulation will implement this suggestion.

ARB staff will continue to corroborate survey data with other data sources and is currently planning on holding stakeholder working group meetings throughout 2012 and 2013, which will be followed by an additional public workshop. This workshop will focus on additional public input on further updates to the emissions inventory, a summary of the economic analysis, and a preliminary draft proposal for regulatory strategy development. A follow-up workshop will be held in the spring of 2013 (date to be determined) for public input on the draft proposals for the regulatory strategy development. ARB expects to have a final draft regulation developed by October 2013. An ARB Board hearing is tentatively scheduled in the winter of 2013 for consideration of the proposed regulatory strategy.

III. Supporters

For many years, ARB supporters and air quality activists have pushed ARB to adopt a rule in a concentrated effort to reduce smog-forming emissions in the San Joaquin Valley, California’s premier farming community, which suffers from some of the nation’s worst air quality. At this point, it is unclear whether the San Joaquin Valley Air District will lobby ARB for a stringent rule, as the measure is likely to be politically controversial in the agricultural-dependent District.

IV. Opposition

This Mobile Agricultural Regulation is anticipated to generate contentious debate, with significant pushback from the agricultural industry over compliance costs. As the language and standards of the regulation have yet to be drafted, many potential opponents, such as the California Farm Bureau Federation, believe it is too early to comment but will continue to closely monitor the regulation’s development.

Please check back for future articles, as we track this regulation through the development and implementation process.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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