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    News in Depth
    With Extended Audio Excerpts

    AQMD Governing Board Strongly Criticizes CA Air Resource Bd. MOU With Railroads, Charges It Undermines Regional & Local Clean Air Efforts

    LB Mayor O'Neill Puts LB On Record Opposing MOU and Supporting Hearing

    CARB Revises Its July 21 Agenda To Discuss Agency's Future Procedures


    (July 20, 2005) -- In a public rebuke to the state's clean air agency, the governing board of the South Coast Air Quality Management District (AQMD) has adopted a resolution strongly criticizing a CA Air Resources Board (CARB) staff-negotiated and adopted Memorandum of Understanding (MOU) with CA railroads that AQMD says will undercut regional clean air efforts.

    The issue could arise at CARB's governing board meeting on July 21 in the wake of a July 8 AQMD board meeting that heard blistering criticism of CARB's RR MOU from boardmembers spanning the political spectrum. The AQMD governing board unanimously voted to adopt a formal resolution (text below) urging that CARB hold a hearing on the MOU...and until then to hold the MOU in abeyance.

    In testimony to the AQMD governing board, CARB Executive Officer Catherine Witherspoon said the MOU "creates opportunities for emission reductions that did not exist before it was signed...The MOU reflects a conscious choice to do what's feasible and certain today rather than gambling on a highly uncertain and distant outcome...[T]he Schwarzenegger administration, the Secretary of CalEPA, our interim chair and the ARB staff stand foursquare behind the final product which we believe is a genuine and significant step forward..."

    Ms. Witherspoon's testimony seemed to further rile already displeased AQMD boardmembers.

    AQMD board chair William Burke responded, "I like Catherine but, you know, it doesn't impress me that she's here, because her mission here is to tell me to go put it where the sun doesn't shine, so I'm not thrilled with seeing her today. So, you know, all those who want to suck up can do that, I'm not in that mode today."AQMB CARB MOU July 8/05
    Photo: AQMD webcast screen capture

    AQMD boardmember/L.A. County Supervisor Mike Antonovich said politely but bluntly: "I think the railroads thought they were going to pull a fast one, but you've seen the outcry from local officials, from the public, that they will not be successful in their efforts..."

    AQMB CARB MOU July 8/05
    Photo: AQMD webcast screen capture
    AQMD boardmember Bea LaPisto-Kirtley, Mayor of Bradbury and representing eastern L.A. County cities, took aim at the contention of CARB and the railroads that there should be conformity in standards statewide. "You understand that we have the largest, the busiest Ports in the nation, and so the Ports in Oakland and San Diego are not affected like the Ports in Los Angeles and Long Beach, and so we have different needs from other areas of the state," Mayor LaPisto-Kirtley said.

    Mayor LaPisto-Kirtley then delivered some extraordinarily plain-spoken criticism:

    ...What concerns me is you didn't even consult with your sister air quality agency while you were doing this. That really, really bothers me. I don't think it says much for your leadership...You didn't consult your board, which I don't think that says very much for your leadership also...You did agree to a poison pill. You may not like the terminology but that's what you agreed to. You said that that was the railroads' line in the sand, that they wanted that in there. Your line in the sand should have been to walk away. You should not have negotiated that away. That should have not been in the Memorandum of Understanding, because that means that anybody, any governmental agency that tries to implement clean air in their area, that will effectively nullify what the railroads say that they will do.

    I also believe that if the railroads did not have the technology to clean up their act, OK. They do have the technology. They don't want to. It's a matter of dollars and cents...They can do it, they don't want to because it's dollars and cents...

    ...They're affecting the health of people in our area...I represent the 61 cities in eastern L.A. County and a lot of them are greatly impacted by the effects of the railroads. They shouldn't be allowed to pollute willy-nilly as they please just because they can. You're allowing them to do that and that really bothers me...

    This is a deal that was not for the benefit of the people, and if you can't cut a deal that's for the benefit of the people, then don't cut the deal.

    LBReport.com has posted extended audio segments of the proceedings from AQMD's webcast of the meeting. We believe they are necessary to fully convey the intensity of the proceedings.

    Audio coverage

    LBReport.com's audio coverage is from AQMD's webcast of the proceedings. Much to AQMD's credit, its website -- www.aqmd.gov -- offers the public live webcast coverage and archival access to its governing board meetings.

    We've reduced the lengthy MOU proceeding to what we consider its salient portions, reducing the time to just over half an hour. We've indicated edits by inserting a "whoosh" sound [similar to an ellipses ("...") which we use in written transcripts.]

    Times are indicated so readers can jump to items of interest if desired. Our audio includes:

    • CARB Executive Officer Catherine Witherspoon (00:00-03:16)
    • AQMD Board chair William Burke (03:25-04:00)
    • Lawyer intro'd by AQMD staff opines on federal issues re RRs (04:15-6:31)
    • AQMD Executive Officer Barry Wallerstein (06:48-08:40)
    • L.A. County Supervisor Mike Antonovich (08:40-12:30)
    • Mayor LaPisto-Kirtley (12:37-16:28)
    • Mark Stehly, BNSF RR (for CA RRs) (16:36-20:17)
    • Andrea Hricko, Asst. Prof. Preventive Medicine, USC's Keck School of Medicine (20:20-23:38)
    • Representative from Communities for a Better Environment (23:40-24:08)
    • Jesse Marquez, Coalition for a Safe Environment (24:10-24:59)
    • Gail Ruderman Feuer, Sr. Att'y NRDC (25:00-27:40)
    • Motion by Boardmember Mayor LaPisto-Kirtley to vote (27:48-30:24)

    In real time, an AQMD boardmember had to leave early at a time certain (after most public testimony had been heard) and on the advice of AQMD legal counsel additional speakers were invited to state their names and positions for the record (all were opposed to the MOU), the board vote was taken and detailed testimony from the remaining speakers (including Gail Feuer) was taken. Our audio excerpt puts public testimony ahead of the motion and vote.

    Audio is in the .ra ("Real Audio") format that should "stream" into your computer (avoiding lengthy downloads) and can be played using a free playback device that many people already have on their computer. (If you don't have it, the playback device can be downloaded free on a link below.)

    To launch audio, click on AQMD re CA ARB MOU, Extended Excerpts, July 8, 2005

    We are also told that AQMD is considering making the proceeding available on DVD. Our webcast audio is not hi-fi, attributable in part to our not using high speed broadband (although we're planning to upgrade soon.)

    If you don't have the "real audio" playback unit, you can download it free at: RealOne player download

    In advance of the AQMD meeting, LB Mayor Beverly O'Neill put CA's fifth largest city on record as urging CARB to hold a public hearing on its MOU. In a letter dated June 30 (a day after LBReport.com reported the MOU), Mayor O'Neill wrote to outgoing CARB acting chair Barbara Riordan in pertinent part:

    ...This MOU appears to have been developed without public participation or involvement.

    With our support, the State Legislature, local air districts and other entities have been working on this issue to address significant air quality concerns about railroad operations for some time. The proposed MOU erodes the ability of local governments and local agencies to adopt or enforce any air quality requirements pertaining to the MOU.

    The City of Long Beach requests the CARB to conduct a public hearing regarding the contends of the MOU and consider all comments and concerns, especially from local governments...There is an opportunity for our agency to correct the current situation and provide for an open and transparent process that is better representative of government.

    At the AQMD board meeting, AQMD staff said CARB's MOU was less stringent than what could be achieved through legislation and local regulations. AQMD boardmembers hit what they called a "poison pill" in the MOU that, they said, lets railroads abandon commitments to emission reductions statewide if any government agency -- federal, state, regional or city -- tries to enforce a requirement that addresses the same goals as those in the MOU. AQMD officials said this could jeopardize efforts to reduce railroad emissions via four proposed AQMD rules...and portions of the Port of L.A.'s No Net Increase [in air pollution] plan.

    "This agreement is a bad piece of public policy that will result in dirtier air for millions of Californians for years to come," said AQMD Board Chair Dr. William Burke in a release. "It should be rejected and replaced with more effective and enforceable measures," he said.

    AQMD said in a release that controlling locomotive emissions is crucial to cleaning up southland air. "In addition to toxic diesel emissions, diesel locomotives in the region emit about 37 tons per day of smog- and particulate forming nitrogen oxides. That is more than the combined emissions from the area's 320 largest facilities, including all of the oil refineries, power plants and major manufacturing plants. Compared to autos, businesses and major facilities such as oil refineries, locomotives and rail yards are still relatively uncontrolled," said AQMD in a written release.

    Among the those heard at the AQMD meeting:

  • Mark Stehly, Asst VP Environment, Research & Development of BNSF RR testified on behalf of the CA railroads. "[W]e strongly disagree with your staff's characterization of the new MOU and the process of negotiating it. No one can say that any combination of proposed district regulation and state legislation could provide greater or faster emission reductions from locomotives or railyards than this new MOU. The MOU and its reductions are a good thing for the citizens of the region and for the rest of this state as well...We can't live with a patchwork of individual air district requirements. It would make it very difficult to operate..."

  • Andrea Hricko, Asst. Prof. of Preventive Medicine at USC's Keck School of Medicine and organizer of the Feb. 2005 LB Conference/Town Meeting "Growing Pains: Health and Community Impacts of Goods Movement and the Ports" (LBReport.com detailed coverage of LB event click here) told the AQMD board:
  • AQMB CARB MOU July 8/05
    Photo: AQMD webcast screen capture

    At that [LB] meeting, Terry Tamminen, Cabinet Secretary to Governor Schwarzenegger, urged the 400 participants to be very engaged in the public process...in the goods movement arena and on goods movement decisions and to be sure that people had their voices heard...A prominent recommendations [of that meeting] was that the members of the public had to be engaged very actively in any public process involving goods movement decisions that affected them. What none of us knew at the time of the [LB] Town Meeting, was that at the very time our meeting was going on -- and speakers from ARB and the Governor's office were making presentations, that the MOU was actually being negotiated. And in a room with 400 people -- elected officials, members of the public, AQMD present -- the only people engaged in that MOU were the ARB and the railroad people...

  • A representative of Communities for a Better Environment in Wilmington labelled the MOU "environmental racism" and called for it to be rescinded.

  • Gail Ruderman Feuer, senior attorney with the Natural Resources Defense Council testified, "In addition to being bad public policy, the MOU violates the law. It violates the California Environmental Quality Act and it violates the California Administrative Procedures Act."

    On motion by Boardmember Bradbury Mayor LaPisto-Kirtley, strengthened further at the suggestion of AQMD boardmember/Chino Mayor Dennis Yates to encourage the use of rulemaking and legislation, the AQMD governing board adopted the following resolution:

    1. FURTHER REQUEST A CARB BOARD HEARING ON THE RAILROAD MOU, AS PREVIOUSLY REQUESTED SEPARATELY BY DR. BURKE AND SUPERVISOR ANTONOVICH, AND THAT THE MOU BE HELD IN ABEYANCE UNTIL SUCH HEARING CAN BE CONDUCTED AND ENCOURAGE THE USE OF RULEMAKING AND LEGISLATION FOR THE RAILROADS RATHER THAN THE USE OF AN MOU.

    2. DIRECT STAFF TO CONTINUE DEVELOPMENT OF REGULATION 35, RELATED TO RAILROAD IDLING AND RAIL OPERATIONS RISK ASSESSMENT AND REDUCTION, WITH THE GOAL OF BOARD CONSIDERATION THIS FALL.

    3. CONTINUE TO SEEK APPROVAL AND ENROLLMENT OF SCAQMDS THREE LEGISLATIVE PROPOSALS, SB 459, AB 888, AND AB 1222, WHICH ARE CO-SPONSORED WITH LOCAL COMMUNITY ORGANIZATIONS.

    4. RENEW SCAQMDS LONGSTANDING REQUEST FOR A GOVERNING BOARD-TO-GOVERNING BOARD RETREAT WITH CARB, TO DISCUSS AREAS OF MUTUAL INTEREST, AND TO FACILITATE A BETER COMMON UNDERSTANDING OF INDIVIDUAL AGENCY PRIORITIES AND A MORE COHESIVE STATE AND LOCAL APPROACH.

    The AQMD Board passed the Resolution unanimously.

    The aftermath

    Shortly after the AQMD board action, CARB posted an amended agenda for its upcoming meeting which includes an item to consider adopting a resolution letting CARB's Executive Officer enter into future MOUs and similar agreements with air pollution sources for emission reductions for presentation to the CARB governing board for ratification...with no such MOU or agreement becoming effective until ratified by the Board by resolution at a public meeting.

    As previously reported by LBReport.com, CARB said in announcing its MOU:

    [The MOU] obligates the railroads to significantly reduce diesel emissions in and around rail yards in California" and includes an "idling-reduction program" to eliminate all non-essential idling with anti-idling devices and operational changes; health risk assessments for all major rail yards within 30 months to quantify the localized risks from each yard and enable further mitigation; community and air district involvement in the preparation of risk assessments; enforcement of MOU provisions, and evaluation and development of measures to further reduce impacts on local communities. Other actions described in the agreement include maximum use of state or federal low sulfur diesel in locomotives fueled in CA six years earlier than federal regulations require; a statewide visible emissions reduction and repair program to ensure the incidence of smoking locomotives to less than one percent with repairs within 96 hours; detailed evaluation of advanced control measures that can reduce diesel particulate emissions by 90 percent from uncontrolled levels for applicable locomotives; and assessment of remote sensing technology to identify high emitting locomotives.

    AQMD is the air pollution control agency for OC and major parts of L.A., San Bernardino and Riverside counties.

    The Air Resources Board is a department of the California Environmental Protection Agency. ARB's mission is to promote and protect public health, welfare, and ecological resources through effective reduction of air pollutants while recognizing and considering effects on the economy. The ARB oversees all air pollution control efforts in California to attain and maintain health based air quality standards.

    CARB was created by the state legislature and consists of eleven members appointed by the Governor. Five are experts in fields such as medicine, chemistry, physics, meteorology, engineering, business, and law; five others are elected officials who represent regional air pollution control agencies (one each from the L.A., SF, SD and San Joaquin Valley, and one represents the other districts; the chair is the only full-time member.

    On June 28, Governor Arnold Schwarzenegger chose Cindy Tuck to chair the CA Air Resources Board. She is listed as a registered lobbyist and General Counsel for the "California Council for Environmental and Economic Balance."

    The CA League of Conservation has criticized Gov. Schwarzenegger's choice, saying Ms. Tuck had "spent her career lobbying for polluting industries" and called her nomination "a bad sign from a Governor who has pledged to cut air pollution by up to 50%."

    Ms. Tuck's first CARB board meeting will be on July 21.


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