BILL ANALYSIS
AB 2042
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SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Byron D. Sher, Chairman
2003-2004 Regular Session
BILL NO: AB 2042
AUTHOR: Lowenthal
AMENDED: June 14, 2004
FISCAL: Yes HEARING DATE: June 28, 2004
URGENCY: No CONSULTANT: Kip Lipper
SUBJECT : AIR POLLUTION CONTROL: PORTS OF LOS
ANGELES AND LONG BEACH
SUMMARY :
Existing law :
1)Requires the State Air Resources Board (ARB) to endeavor to
achieve the maximum degree of emission reduction possible
from vehicular and mobile sources of air pollution in order
to accomplish the attainment of the state ambient air
quality standards at the earliest practicable date.
2)Requires air districts to adopt and enforce rules and
regulations to achieve and maintain ambient air quality
standards in all areas affected by emission sources under
their jurisdiction, and to enforce all applicable provisions
of state and federal law.
3)Designates the state board as having the primary
responsibility for the control of emissions from motor
vehicles in the state, and designates the districts as
having the primary control from all sources other than
vehicular sources.
4)Requires marine terminals in the state to operate in a
manner that does not cause trucks to idle or queue for more
than 30 minutes while waiting to load or unload at the
terminal, and charges the district with geographical
jurisdiction over that marine terminal with enforcing the
requirement.
This bill :
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1)On or before September 1, 2005, requires the South Coast Air
Quality Management District (SCAQMD) to establish a baseline
for air quality for the Port of Los Angeles and the Port of
Long Beach that is:
a) Based on data collected by the district on the level
of emissions in those ports during 2004 from oceangoing
vessels and harbor craft, cargo handling equipment, rail
locomotives, and commercial motor vehicles.
b) Based on data collected by the district on emissions
levels in those ports during 2004 from oxides of nitrogen
(NOx), carbon monoxide (CO), particulate matter(PM) , and
sulfur dioxide (SOx).
1)Requires the SCAQMD, the ARB, the Port of Los Angeles, and
the Port of Long Beach, in consultation with the federal
Environmental Protection Agency, industry stakeholders,
community and homeowner groups near the ports of Los Angeles
and Long Beach, and environmental organizations, to develop
a Memorandum of Agreement (MOA) to implement emission
control measures related to operations at each of those
ports.
2)Requires the MOA to include certain provisions, including:
a) A requirement that, on or before January 1, 2006, and
on or before January 1 of each year thereafter, the level
of air pollution at the Port of Los Angeles and the Port
of Long Beach not exceed the specified baseline.
b) A requirement that the Port of Long Beach and the Port
of Los Angeles reimburse the ARB for all costs incurred
as a result of developing the MOA and that the Ports
waive any claim to reimbursement by the state for costs
incurred as a result of developing and implementing the
MOA.
3)Requires the ARB to report to the Legislature on January 1,
2006, and on January 1 of each year thereafter regarding the
development and implementation of the MOA.
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4)If the MOA has not been entered into by all of the parties
specified in (1) above:
a) On or before September 1, 2005, requires each port to
develop a baseline for air quality for that port, based
on data collected by the port regarding the level of
emissions in the port during 2004 for the same sources
and pollutants described in (2)(a) above, to submit the
baselines to the SCAQMD for approval, but specifies that
the SCAQMD's role is one of oversight with respect to the
baseline.
b) Requires the ports, on or before January 1, 2006 and
on or before January 1 of each year thereafter, to limit
their growth and operations in a manner that prevents the
level of air pollution at each port from exceeding the
baseline.
c) Requires the ports, on March 1, 2006, and on March 1
of each year thereafter, to report to the SCAQMD
regarding the port's compliance with the limitation
requirement relating to port growth and operations,
including an accounting of the port's programs and
efforts that are directed towards that compliance.
d) Authorizes the ports to establish an emission
reduction credit trading program for oceangoing vessels
and harbor craft, cargo handling equipment, rail
locomotives, and commercial motor vehicles, if the
program is approved by either by the ARB or the SCAQMD.
5)Makes various legislative findings and declarations relative
to diesel pollution and its effects on public health.
COMMENTS :
1)Purpose of Bill . According to the author's office:
"The volume of goods moving through the ports of Los Angeles
and Long Beach has quadrupled in the last seven years and
will likely quadruple again in the next 15 years. These
goods are transported from the ports primarily by diesel
fueled trucks.
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"The ports of Long Beach and Los Angeles operate on state tide
and submerged lands, which means that the ports are the
steward for these state lands and must manage them in a
manner that benefits all Californians.
"Given the anticipated growth at the ports, and given the fact
that diesel fuel exhaust has been determined to cause
cancer, and that emissions from the ports are the single
largest source of air pollution in the four-county South
Coast Air Basin, it is important to limit the increase in
toxic, cancer-causing emissions while the ports grow.
"Operations at the Port of Long Beach and Port of Los Angeles
account for approximately 17% of the NOx (oxides of
nitrogen), out of the four-county South Coast Air Basin.
"A study conducted by these ports predicts that heavy-duty
vehicle traffic (powered by diesel fuel) to and from the
ports will more than double in the next 20 years, from
roughly 35,000 vehicles per day to nearly 83,000 vehicles
per day .
"On Wednesday June 9, 2004, the Harbor Commissioners for the
Port of Los Angeles approved a proposal that would commit at
least 10% of the Ports annual revenue (approx. $500
million), to fight air pollution caused by operations at the
port. This annual commitment comes to approx. $50 million a
year.
"Doctors have linked high smog levels in Los Angeles to
increased rates of asthma. Air pollution has been linked to
higher rates of cancer and respiratory disease. In Long
Beach, 15 percent of children age 17 or younger have been
diagnosed with asthma, according to a 2003 county health
survey. That compares with 12 percent countywide and about 8
percent nationally.
"According to the South Coast Air Quality Management District,
cancer risk estimates at the ports are about 1,400 per
million people exposed, far above the 1-in-a-million risk
level considered "acceptable" by the U.S. Environmental
Protection Agency. According to the District, the ports are
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the largest single source of air pollution in the
four-county jurisdiction of the District.
"Southern California risks losing $12.1 billion in federal
highway funds if federal Clean Air Act standards aren't met
by 2010. So far, the basin has failed to meet national
standards for ozone or for particulate emissions.
"Of the sources at the ports, trucks and ships are the biggest
polluters. The diesel trucks serving the ports emit about
47 tons of NOx each day just within port boundaries, out of
a basin-wide total of 1,056 tons, the AQMD says. Ships and
commercial boats add another 49 tons a day, while an unknown
portion of the 181 tons of NOx from diesel equipment also
comes from the ports. Trains in the region add another 36
tons of NOx, some of which can be traced to old diesel
locomotives at the ports."
2)Opponents State Bill Places Unfair Burden on Interstate
Commerce and Exceeds State Authority to Regulate Interstate
and International Sources of Air Pollution . Opponents to
this measure state:
"AB 2042 directs the South Coast Air Quality Management to
establish a baseline for air quality in the Port of Long
Beach and Los Angeles based on previous emission
inventories. The City of Long Beach and the City of Los
Angeles are then saddled with the burden and responsibility
of not exceeding those baselines. These baselines consist
primarily of emissions from mobile sources, such as
ocean-going vessels, locomotives, and diesel trucks.
Although these sources are associated with routine port
operations, they are not directly operated or controlled by
the ports.
Pursuant to the federal Clean Air Act, authority to regulate
emissions from most of the mobile sources whose emissions
are to be included in the baselines rests with the U.S. EPA
and, to a lesser extent, the California ARB. The South
Coast District, the City of Long Beach and the City of Los
Angeles do not currently have jurisdiction to regulate
emissions from most of these sources, and in fact would be
expressly preempted from doing so in most instances by the
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Clean Air Act.
"The Ports of Long Beach and Los Angeles are the two largest
container ports in the United States, with the overwhelming
majority of their container volumes involving shipments to
and from Pacific Rim countries. There is little dispute
that the level of trade between the United States and the
Far East is anticipated to continue to increase
significantly in the coming years.
As drafted, AB 2042 has the potential to limit operations in
the Ports of Long Beach and Los Angeles to 2001 and 2002
levels, respectively. To the extent operations at these two
ports are frozen (or potentially even reduced to past
levels), other ports and international airports along the
west coast of the United States, Mexico and Canada will need
to be upgraded and expanded to accommodate the increased
volume of international trade that everyone seems to
acknowledge is to come. Companies throughout the United
States who receive or ship goods flowing through the Ports
of Long Beach or Los Angeles may also need to adjust their
business plans.
3)MOA vs. Direct Regulation: Wouldn't the Latter Serve the
Author's Purposes Better ? As recently amended, this measure
requires the "development" of an MOA among state and local
air agencies and the ports to reduce emissions from the
ports in a manner that doesn't exceed a baseline set by the
SCAQMD. While the author's intent clearly is laudable, this
approach raises several concerns:
a) The language in the bill is ambiguous as to whether
the parties actually would have to enter into the MOA, or
simply "develop" it. Since it is the author's clear
intent that it be binding on the ports, the language may
need to be clarified.
b) The notion of an MOA itself is a somewhat peculiar
method to achieve air emissions from sources that are
already subject to state or local air district
jurisdiction. If these sources are causing or
contributing to air pollution, and air agencies are not
taking steps to address those sources, the Legislature
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usually adopts a law to impose new requirements on those
sources.
[It should be noted that the author's office explains this
unique approach as being necessary to address concerns
raised by the "Moderate Caucus" in the Assembly when the
bill was heard in that house; the author also notes that
if the MOA approach is not successful, the default
provisions of the bill that require the ports to
undertake controls would kick in.]
4)"No Baseline Exceedance" vs. Reduction in Emissions: Should
Bill Strive for Air Quality Improvement From Ports ? As
presently drafted, this measure requires ports to achieve
emission reductions that do not exceed the baseline set by
the SCAQMD. This provision raises several concerns:
a) A requirement for the ports to stay within a specified
baseline that is set once and never revised may initially
prove beneficial for air quality, but may lead to
increased pollution from ports over time. It may make
sense to establish the baseline as an initial objective
but to authorize amendment or other adjustments that
would actually result in a reduction in air pollution
from these sources over time.
b) It is unclear what is meant by the bill's provisions
that require the ports to "limit the level of air
pollution at the [ports] not to exceed the baseline
established?" For example, would the MOA authorize the
use of emissions offsets or emission reduction credits
(ERC's), or would the limits strictly adhere to the
baseline?
5)Some Sources Subject to MOA Provisions Not Within
Jurisdiction of the State and Local Air Districts . As noted
in the opposition statement above, the federal Clean Air Act
(42 U.S.C. Section 7401 et. seq.) generally delegates to the
states authority over in-state and intrastate stationary and
mobile sources of air pollution. Sources of air pollution
such as airplanes, locomotives, oceangoing vessels and the
like generally are reserved to the federal government and
international treaty bodies to regulate. This fact has been
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the source of great frustration to CA air regulators who
have tried on numerous occasions to push the federal
government to reduce emissions from these sources.
While the bill requires the MOA under its provisions to be
developed in consultation with the US EPA, it nonetheless
targets emissions from sources such as oceangoing vessels
and rail locomotives. It may make more sense to require the
air agencies ports to take actions to reduce emissions from
sources within their control, and to adopt processes or
procedures for ensuring that they are taking all feasible
actions to reduce emissions from those sources that are not
within their control.
6)Does Bill Affect Air Regulation of Other Ports in State?
This measure targets the emissions from two large ports
within the state. However, there are other large ports in
the state (e.g. San Francisco, San Diego) that pose similar
air quality problems for their regions. While the author
understandably wishes to address those areas of greatest
concern to his constituents, there are efforts underway at
the ARB and other districts to regulate ports. It may be
advisable to state in this measure that nothing in its
provisions shall affect those efforts already underway to
regulate port emissions.
7)Ports Should Not Be Authorized to Establish Trading Program .
This measure, at page 8, lines 4-8, and page 9, lines 8-12,
authorizes the ports of LA and Long Beach to establish
emission reduction credit trading programs provided they are
approved by the SCAQMD or the ARB. This provision is
perplexing, given that the SCAQMD and ARB both already
authorize the use of emission reduction credits for sources
of air pollution within their jurisdictions. Moreover, it
is unusual to authorize a regulated source to set up an ERC
program. These provisions should be stricken or modified to
ensure that any ERC trading done by the ports is consistent
with current law and procedures used by regulatory agencies.
SOURCE : Assembly Member Lowenthal
SUPPORT : American Lung Association of California,
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California Environmental Rights Alliance, City
of Long Beach, City of Los Angeles, Clean Power
Campaign, Coalition for Clean Air, Natural
Resources Defense Council, Sierra Club
California, South Coast Air Quality Management
District
OPPOSITION : Associated General Contractors, California
Association of Port Authorities, California
Business Properties Association, California
Chamber of Commerce, California Chapters of the
National Association of Industrial and Office
Parks, California Cotton Ginners Association,
California Cotton Growers Association,
California Film Extruders and Converters
Association, California Grain & Feed
Association, California Independent Oil
Marketers Association, California League of
Food Processors, California Manufacturers and
Technology Association, California Railroad
Industry, California Warehouse Association,
Chemical Industry Council of California,
Construction Industry Air Quality Coalition,
Grocery Manufacturers of America, Harbor
Association of Industry & Commerce,
International Council of Cruise Lines,
International Council of Shopping Centers, Los
Angeles Area Chamber of Commerce, Long Beach
Chamber of Commerce, Lumber Association of
California, Lumber Association of Nevada,
Matson Navigation Company, Pacific Merchant
Shipping Association, Port of Long Beach,
Retail Industry Leaders Association, Society of
the Plastics Industry, Western Home Furnishings
Association, Western States Petroleum
Association