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    News in Depth

    CA Air Resources Bd. Schedules Sept. Hearing To Discuss Controversial RR MOU

    (July 25, 2005) -- The CA Air Resource Board will hold what it calls two "public consultation" meetings in August, followed by a special board meeting on Sept. 22 to discuss what action, if any, CARB's board will take concerning a controversial Memorandum of Understanding (MOU).negotiated secretly between CARB staff and the RRs, then announced publicly.

    CARB staff and the RRs say the MOU will reduce pollution promptly, but the South Coast Air Quality Management District (AQMD) and other clean air advocates say the MOU actually undercuts stronger anti-pollution efforts.

    A public meeting on the MOU will be held in Northern California on August 10 and in Southern California [City of Commerce City Hall] on August 31. These will include CARB explanations of the MOU as well as testimony from the public and interested parties.

    Those two public meetings will be followed by a special CARB board meeting on September 22 devoted exclusively to discussing whatever action the CARB governing board decides to take relative to the MOU.

    The announcement comes as CA's clean air agency found itself the target of withering criticism over the RR MOU. CARB staff and the RRs insist the MOU offers the best hope of getting clean air reductions now, while clean air advocates say the MOU's statewide standards disregard significantly higher pollution levels resulting from the L.A.-LB area's Port/RR goods movement operations, which dwarf other CA port operations. AQMD is particularly incensed by what it calls a "poison pill" in the MOU that it says neutralizes stronger local and regional clean air measures.

    CARB's announcement of the public meetings on the MOU came on July 21 and was announced by Cindy Tuck, who chaired her first CARB meeting since her appointment by Gov. Arnold Schwarzenegger. ( has prepared an unofficial transcript of Ms. Tuck's MOU remarks, posted below).

    On July 8, AQMD boardmembers publicly sandpapered the MOU, then unanimously adopted AQMD a resolution seeking a CARB hearing on the MOU, urging that it be held in abeyance...and encouraging the use of rulemaking and legislation for the RRs rather than use of an MOU.

    Following AQMD's public rebuke, CARB added an item to its July 21 agenda calling for CARB governing board ratification of future MOUs negotiated by staff...which did little to stem increasing criticism of the CARB's already concluded RR MOU. CARB's scheduling of public/explanatory meetings and a special board meeting effectively buys time before further collisions on the issue.

    At CARB's board meeting, chair Tuck said:

    Ms. Tuck:...I want to start by saying MOUs are an effective and important tool for getting additional emission reductions, particularly from federal sources that are subject to federal preemption.

    In this case, there are important benefits from the MOU and some of the benefits for example are reductions in public exposure and health risks near the railroads, something that I think we're all working for.

    And also an enhancement of our ability to gain much larger, longer term benefits from the introduction of cleaner locomotives. So there's some good benefits from the MOU.

    CARB July 21/05
    Photo: CARB webcast screen capture

    The goal of the MOU is to do good things for clean air, but that said we are hearing some concerns from the public about the MOU, and very strong concerns about the public process which was used, or maybe not so much of a public process that was used to develop the MOU.

    So with that, I want to talk about some of the actions that ARB will be taking to respond to those initial comments that we heard.

    First, there will be two public consultation meetings in August that will give the public and interested parties an opportunity to provide their input, their thinking, on the MOU. And they will also give our staff a chance to provide background information about MOU, and explain the benefits of the MOU. So I think these will be very good discussions, very important discussions.

    One of these public consultation meetings will be held on August 10 in norther California, and the second public consultation meeting will be held on August 31 in southern California....

    Another action that we'll be taking is the [CARB] board will be holding a special board meeting in September...on September 22. At that meeting, our board will be hearing comment from the public and decide what appropriate action the board wants to take relative to the railroad MOU.

    And based on environmental justice experience, we are scheduling that meeting to take place in the afternoon and the evening. Our vote will be in the evening so that community representatives have an easier time of being able to participate in the evening meeting...

    CARB's governing board did not hold the MOU in abeyance pending the Sept. 22 hearing, which AQMD requested in its July 8 resolution. AQMD Executive Office Barry Wallerstein travelled to Sacramento to address CARB's governing board:

    CARB July 21/05
    Photo: CARB webcast screen capture
    Dr. Wallerstein: Our governing board, and a significant number of stakeholders, including environmental justice groups, local government, many elected officials, have asked this board to hold this new MOU in abeyance until you have time to consider it. And since you have scheduled a hearing in hear the pros and cons of the MOU, and to take action as the board sees fit, we would ask you to...indicate that the new MOU would be held in abeyance until the Sept. 22 hearing when this board will make a decision one way or another on that MOU.

    Kirk Markwald, a RR industry rep, spoke in opposition to any abeyance:

    Mr. Markwald: ...We believe when we signed the MOU, and continue to believe today, that there had been a duly authorized meeting of the minds, that we could achieve substantial emission reductions that no one in the state of California -- no agency, no legislative action -- could have gotten those actions. They are going to be enjoyed and will have direct benefits statewide...It is clearly in effect, and we believe the right time to then ask whether or not this board wants to do anything about that is when you've had a chance to hear a full briefing on the substance of the MOU, as well as to be able to hear the public comment...At that point, all manner of approaches and choices are in front of you, and you'll do whatever you want to do, but the MOU is in effect today and we believe that is the right way to proceed...

    CARB staff and counsel indicated that if CARB declared the MOU in abeyance unilaterally, this could be deemed a breach, allowing the RRs to walk away from the deal unless the RRs agree to hold the MOU in abeyance...which they haven't done.

    CARB Boardmember/Supervisor Mark DeSaulnier (Contra Costa County/Bay Area AQMD) engaged in a colloquy with CARB counsel Tom Jennings on the point:

    Supervisor DeSaulnier: Tom, I just want to be clear so that nothing's going to change when we come in September. We can't hold it in abeyance by action today, but we will be able to void it in September if we choose, which seems contradictory to me.

    CARB counsel Jennings: Theoretically you can hold it in abeyance if you choose to do so, but the consequence of that is that the railroads could walk away from the agreement...So our thinking was to leave it in effect and have you have your hearing on September 22 and after full consideration of all the factors at that point you can decide whatever you want to do.

    Supervisor DeSaulnier: But we have complete discretion in either case. It's just your advising it's better to wait until September.

    CARB counsel Tom Jennings: Yes, because you will have given it full consideration at that point.

    Chair Tuck: ...We haven't had a full presentation on this by the staff as to the benefits of the MOU. We also need to hear the comments from the public. So we'll be able to put all that together in September and make an informed decision at that time..."

    Dr. Wallerstein suggested that the CARB board, not just the staff, ask the RRs to hold the MOU in abeyance.. There was no official public response to this.

    As previously reported by, AQMD Boardmember Mayor Bea LaPisto-Kirtley of Bradbury, who represents southeast L.A. County cities on AQMD, said CARB staff should have walked away from the deal and not agreed to it. Addressing herself to CARB Executive Officer Catherine Witherspoon, Mayor LaPisto-Kirtley said:

    AQMD Boardmember/Mayor LaPisto-Kirtley: ...You [CARB staff] 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.

    As previously reported by, LB City Hall, via a letter signed by Mayor Beverly O'Neill, urged CARB to hold a board hearing on the MOU. In a letter dated June 30, Mayor O'Neill said the MOU "erodes the ability of local governments and local agencies to adopt or enforce any air quality requirements pertaining to the MOU." It asked CARB to hold a public hearing on the contents of the MOU and "consider all comments and concerns, especially from local governments. This is an important issue for cities and we would appreciate the opportunity to be involved in a public decision-making process."

    The Natural Resources Defense Council has suggested the MOU may violate the CA Environmental Quality Act and the CA Administrative Procedures Act.

    And state legislators may yet weigh in the hot button issue...which carries a potential political sting. In his 2003 recall election campaign, then-candidate Arnold Schwarzenegger sought votes by stressing environmentally-friendly views.

    Among those expressing concern over CARB's RR MOU were Burbank City Councilman/Coalition for Clean Air Policy Chair Todd Campbell...and a delegation of southland residents who travelled to Sacramento from the City of Commerce.

    Following the conclusion public testimony, CARB boardmember Sandra Berg -- CARB's designated Public member appointed by Gov. Schwarzenegger in August 2004 -- spoke briefly. CARB's website lists Ms. Berg as president/CEO of a specialty paint manufacturer and a hazardous waste management company and "actively involved with the Mothers of East Los Angeles and...a member of the Boyle Heights Chamber of Commerce" (among other community involvements).

    Ms. Berg: I would just like to make sure that we keep the goal in mind, and the goal of an MOU is to bring parties together that are not under regulation. This is fully voluntary process...We do not have the authority in this board to regulate people we're not allowed to regulate, and so what we're doing is allowing a process for people to voluntarily come together. In a voluntary negotiation, people aren't going to get everything they want, and we're not going to be able to satisfy all the community needs and keep the voluntary participant at the table...I agree we need to make sure people are heard, but I think it's critical to remember what's the goal? Would we just assume if we can't regulate people and force them to the people, we'd just as soon they'd stay home and continue to do what they want?...Obviously we're not going to get everything we want, but we're getting more than what we had without the MOU...

    To these comments, chair Tuck responded, "Very well said."

    Near the end of the item, CARB boardmember Supervisor DeSaulnier offered some advice to railroad industry reps. Noting that a lawyer speaking for the RRs began by welcoming Chair Tuck by misspeaking "Welcome to the NFL," then quipping "It feels the NFL today," Supervisor DeSaulnier said in a constructive tone:

    Supervisor DeSaulnier: If you want to avoid WWF [World Wrestling Federation] as opposed to the NFL in September, I think you would ask your clients to at least come back with some kind of language that I think [AQMD's] Dr. Wallerstein is after, is that you're willing to, if not hold it in abeyance, that at least you're open minded about and open to going through a public process where basically you state what you, I think you believe personally, is this is a good agreement for the public. So somewhere in there, I think you'd be well served to indicate that you're open to a public process.

    South Coast AQMD's rep on CARB, Mayor Ronald Loveridge of Riverside, capped the proceedings by noting:

    Mayor Loveridge: I watched some three hours the discussion before the South Coast [AQMD]. There was extraordinary testimony about this...[The CARB Executive Officer] spoke in favor of this and nearly everybody else spoke against...[O]ne wonders how this affects things like the "no net increase" which I think is a significant policy initiative coming out of the goods movement. You wonder how this affects what's going on here in Sacramento in terms of legislation...that the South Coast [AQMD] has supported...

    CARB's governing board did vote to pass a resolution subjecting future MOUs, and amendments to existing MOUs, to CARB board ratification in a public proceeding.

    Related coverage:

    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

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