BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: April 11, 2012 2011-2012 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: SB 1230
Author: Wright
As Introduced/Amended: March 29, 2012
SUBJECT
Occupational Safety and Health Standards Board: emissions
control.
KEY ISSUE
Should the Legislature delay the application of California Air
Resource Bureau (CARB) regulations requiring on-road diesel
emissions control strategies?
PURPOSE
To delay the application of CARB diesel emission and particulate
matter control regulations until the Occupational Safety and
Health Standards Board (OSHSB) issues additional safety
regulations on the retrofitting of the diesel emission and
particulate matter control technology.
ANALYSIS
Existing law declares that it is the intent of the Legislature
that the State Air Resources Board (CARB) shall have the
responsibility, except as otherwise provided in law, for control
of emissions from motor vehicles and shall coordinate,
encourage, and review the efforts of all levels of government as
they affect air quality. (Health and Safety Code §39500)
Existing law requires that CARB adopt standards, rules, and
regulations necessary for the proper execution of the powers and
duties granted to, and imposed upon, CARB by state law. Such
standards, rules, and regulations adopted by CARB must, to the
extent allowed by state law, be consistent with the state goal
of providing a decent home and suitable living environment for
every Californian. (Health and Safety Code §39601)
Existing law provides a specific regulatory framework for
controlling the emission of substances which are determined to
be carcinogenic, teratogenic, mutagenic, or otherwise toxic or
injurious to humans. Control measures can include but are not
limited to, emission limitations, control technologies, the use
of operational and maintenance conditions, closed system
engineering, design, equipment, or work practice standards, and
the reduction, avoidance, or elimination of emissions through
process changes, substitution of materials, or other
modifications.
(Health and Safety Code §§39650 to 39671)
Existing law provides that any person who violates any rule or
regulation, emission limitation, permit condition, order fee
requirement, or filing requirement is strictly liable for a
civil penalty not to exceed ten thousand dollars ($10,000) for
each day in which the violation occurs. If the violation is
found is established as unintentional, then such liability does
not apply.
(Health and Safety Code §39674)
Existing law provides for the Occupational Safety and Health
Standards Board (OSHSB), which consists of seven individuals
appointed by the Governor for four year terms. Two members must
be from the field of management, two members must be from the
field of labor, one member must be from the field of
occupational health, one member must be from the field of
occupational safety and one member must be from the general
public.
(Labor Code §§140 and 141)
Existing law empowers OSHSB, by an affirmative vote of four or
more members, to adopt, amend, or repeal occupational safety and
health standards. The procedure to adopt, repeal, or amend
occupational safety and health standards must follow the process
for promulgating regulations, unless otherwise stated in Labor
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Code. (Labor Code §§142.3 and 142.4)
Existing law requires that the Department of Occupational Safety
and Health (DOSH) enforce all occupational safety and health
standards adopted by OSHSB. (Labor Code §142)
Existing law requires that OSHSB develop or revise certain
specific occupational safety and health standards, including
bloodborne pathogens, hazardous substance removal work,
agricultural field sanitation, and lead-related construction.
(Labor Code §§142.7, 144.7, 6712, & 6717)
This bill requires that, by January 1, 2014, the OSHSB adopts
standards designed to ensure the safety of the operator in the
installation, use, and operation of a verified diesel emission
control strategy on-road heavy-duty diesel-fueled motor
vehicles. The standards shall, at a minimum, ensure all of the
following:
1) The strategy shall not reduce the capacity, structural
integrity, or safe performance of a vehicle;
2) The strategy shall not reduce an operator's ability to
enter or exit a vehicle safely;
3) The strategy shall not increase the risk of a vehicle
fire;
4) The strategy shall not, through routine maintenance,
emergency maintenance, or normal operations, burn or harm
the operator;
5) To the extent feasible, the strategy shall not cause the
vehicle to stop operating while traveling on the highway or
roadway; and
6) To the extent feasible, the strategy shall not affect
the normal function and operation of the vehicle.
This bill would also prohibit the California Air Resources Board
from requiring fleet owners to install verified diesel emission
control strategies until six months after OSHSB approves the
occupational safety standards for verified diesel emission
control strategies. This bill also provides that this safety
requirement must not impact the on-going implementation of CARB
regulations.
This bill would also make findings, declarations, and
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definitions that would further implement the intent of the bill.
COMMENTS
1. Diesel Emissions and Occupational Health:
Diesel emissions are produced when an engine burns diesel
fuel. These emissions are a mixture of thousands of gases and
fine particles, including more than 40 toxic air contaminants.
These include many known or suspected cancer-causing
substances, such as benzene, arsenic and formaldehyde. It also
contains other harmful pollutants, including nitrogen oxides,
which create smog.
In its 1998 assessment of diesel emissions, the Office of
Environmental Health Hazard Assessment (OEHHA) analyzed more
than 30 studies of people who worked around diesel equipment,
including truck drivers, railroad workers and equipment
operators. The studies showed these workers were more likely
to develop lung cancer than workers who were not exposed to
diesel emissions. According to OEHHA, other researchers and
scientific organizations, including the National Institute for
Occupational Safety and Health, have calculated similar cancer
risks from diesel emissions.
Diesel engines are also a major source of fine-particle
pollution. According to OEHHA, studies have linked elevated
particle levels in the air to increased hospital admissions,
emergency room visits, asthma attacks and premature deaths
among those suffering from respiratory problems. OEHHA also
notes that exposure to fine particles is associated with
increased frequency of childhood illnesses and can also reduce
lung function in children.
Using 2006-2008 emission levels in California, the California
Air Resources Bureau (CARB) estimates that diesel particulate
matter contributes to between 1,500 to 2,400 premature deaths
each year.
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2. A Brief History of State and Federal Diesel Emission
Regulations:
As was mentioned above, the Office of Environmental Health
Hazard Assessment (OEHHA) completed a health assessment on
diesel emissions in 1998. Upon releasing the findings of that
health assessment, the California Air Resources Bureau (CARB)
began its statutorily-required process of formally identifying
particles in diesel emissions as a toxic air contaminant that
may pose a threat to human health. In 2000, CARB released its
risk reduction plan, calling for a 75% reduction in diesel
particulate matter emissions by 2010 and an 85% reduction in
diesel particulate matter by 2020.
In 2008, CARB approved truck and bus regulations to
particulate matter and nitrogen oxide emissions from existing
diesel vehicles operating in California. Updated in 2010,
these emissions create a schedule for controlling emissions
through either a verified diesel emission control strategy or
by replacing the engine. This is discussed in greater detail
below.
The federal Environmental Protection Agency (EPA) began
studying diesel emissions in 1997, putting forward a stringent
emissions-reducing plan to take effect from 2004 forward. The
EPA signed an agreement with diesel engine manufacturers in
1998 that addressed several concerns with diesel emissions,
including consent decrees to manufacturer cleaner engines by
2002 that would exceed the 2004 standards.
In December of 2000, the EPA reached a further series of
agreements with diesel engine manufacturers and diesel
refiners. Beginning in mid-2006, refiners were required to
only produce low-sulfur diesel fuel for highway trucks. In
2007, diesel engine manufacturers began selling low-emission
diesel engines, with low-emission diesel engines being the
mandated minimum by 2010. These requirements ensured that
post-2007 were 90% cleaner than pre-2007 trucks.
3. What is a "Verified Diesel Emission Control Strategy"?
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A verified diesel emission control strategy (VDECS) is a
device that is verified by CARB to capture diesel particulate
matter from diesel emissions. This is frequently done by
attaching a device to the vehicle that captures the exhaust
and burns off the particulate matter by operating at a high
heat. As per the federal standards, post-2007 trucks
frequently have this technology already built into the
vehicle. For pre-2006 vehicles, CARB requires the devices to
be retrofitted to the trucks.
For example, a 2007 year engine, CARB requires no control
technology until 2023, and then only requires a 2010 model
year engine in 2023. For a 1997 model year engine, however,
CARB requires a VDECS from 2012 to 2020, and then that the
engine would need to be replaced with a 2010 model year
engine. Vehicles with a 2010 model year engine automatically
comply with these requirements. These regulations impact 1.25
million vehicles, and for many model year engines, these
regulations went into effect on January 1, 2012.
These regulatory requirements also provide exemption for
certain classes of vehicles. These include dedicated use
vehicles, such as fuel delivery vehicles, concrete mixers, and
on-road mobile cranes. CARB also delays the implementation
schedule for certain vehicles, such as low-mileage
construction vehicles, or vehicles where a VDECS is
unavailable. The CARB regulations also provide a blanket
exemption for emergency vehicles defined in Vehicle Code 165,
which include police and firefighting vehicles.
4. Are "Verified Diesel Emission Control Strategies" Safe?
This question is the crux of this bill. The authors and the
proponents of SB 1230 believe that the CARB verification
process for Verified Diesel Emission Control Strategies
(VDECS) does not appropriately take into account operator
safety. The authors and proponents also cite several
examples, both in and outside of California, where VDECS
failed, leading to small fires and one suspected forest fire.
The process for verifying VDECS is extensively laid out in
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CARB regulations. While the focus of regulations is on air
quality, the regulations do require that the report that CARB
requires for verification of the devices include a section
that requires a "complete discussion of potential safety
issues". CARB regulations also prohibit the installation of a
VDECS if it impairs the safe operation of the vehicle or
violates occupational safety and health requirements.
All failures of VDECS must be reported to CARB. CARB was
contacted by this Committee for specifics on how many devices
are currently installed on vehicles in California and how many
of these devices have failed to the point of possible fire,
actual fire, or injury to operator. According to CARB,
approximately 25,000 VDECS have been installed in California
since 2002. Another approximately 215,000 original equipment
manufactured diesel particulate filters (DPFs), which are
essentially identical to VDECS, and have been in use in
on-road heavy-duty trucks.
Of these devices, CARB is only aware of 15 or fewer cases
where the devices have failed to the point where safety could
have been an issue. In every case the failure was attributed
to abuse, poor maintenance, tampering, improper use,
inappropriate installation, or a combination of these factors.
Additionally, CARB states that it is not aware of any
visibility safety issues with the retrofitted VDECS nor have
any visibility safety issues been raised with vehicles
previously outfitted with emission control devices.
CARB also notes that their verification process to ensure that
the VDECS are designed with sound scientific and engineering
principles would almost certainly rule out any device that was
fundamentally unsafe. CARB, however, will be considering
amendments to their regulatory process in June of this year
that will make this implicit requirement more explicit.
5. Proponent Arguments :
Proponents, who include Southern California Contractors
Association and the California State Council of Laborers,
argue that while the state does verify and certify diesel
particulate filters, the verification process emphasizes the
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level of emission reductions and falls woefully short in
ensuring operator safety. Proponents also argue that creating
a safety standard for the installation of diesel particulate
filters is not new for the state. Proponents note that the
Occupational Safety and Health Standards Board adopted a
standard for the safe installation of diesel particulate
filters for off-road diesel-vehicles in December 2011.
Proponents argue that if a standard was justified for 120,000
or so off-road diesel vehicles and equipment, it certainly
should be justified for one million or so on-road diesel
vehicles.
6. Opponent Arguments :
Opponents of the bill, who include the Diesel Retrofit
Coalition and Sierra Club California, argue that the CARB
In-Use Off Road Diesel Regulation already requires all VDECS
to undergo a rigorous verification process that specifically
addresses safety issues including an identification of failure
modes and associated consequences, and a complete discussion
of all potential safety issues including uncontrolled
regeneration, lack of proper maintenance, and unfavorable
operating conditions. Proponents also note that manufacturers
must regularly submit to ARB comprehensive reports detailing
all product failures and the reasons for those failures so
that CARB may assess whether any VDECS product poses a
significant safety concern, should be subject to additional
testing, or should be removed from the marketplace. Finally,
opponents argue that SB 1230 will undermine the public health
protections afforded by CARB's diesel rules by creating a
duplicative regulatory process with the California
Occupational Safety and Health Standards Board that actually
preempts the CARB authority.
7. Prior Legislation :
SB 432 (De Leon) of 2011 would have required the Occupational
Safety and Health Standards Board (OSHSB) to develop an
occupational safety and health standard for lodging
housekeepers, including the requirement of fitted sheets and
long handled tools. SB 432 is currently on the Assembly
Appropriations Committee suspense file.
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SUPPORT
Southern California Contractors Association (sponsor)
California Construction Trucking Association
California Professional Association of Specialty Contractors
California State Council of Laborers
California Tow Truck Association
California-Nevada Conference of Operating Engineers
Golden State Builders' Exchanges
United Contractors
OPPOSITION
American Lung Association of California
Bay Area Air Quality District
Breathe California
California League of Conservation Voters
Coalition for Clean Air
Natural Resources Defense Council
Regional Asthma Management and Prevention (RAMP)
Sierra Club California
The Diesel Retrofit Coalition
Union of Concerned Scientists
Hearing Date: April 11, 2012 SB 1230
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Senate Committee on Labor and Industrial Relations