AWO Asks EPA To Intervene In CARB Rule

The American Waterways Operators (AWO) joined with three maritime unions in an urgent letter to Michael Regan, administrator of the Environmental Protection Agency, asking him to intervene to reject a pending waiver request for authorization for the California Air Resources Board (CARB) to impose a mandate for diesel particulate filters (DPFs) on commercial harbor craft (CHC) operating in California waters. The other signers were the Marine Engineers Beneficial Association, Inlandboatmen’s Union of the Pacific/Marine Division of the ILWU and the International Organization of Masters, Mates & Pilots. Without such action, CARB’s DPF mandate will take effect at the end of December and could drive vessels, including tugboats needed to dock container vessels, out of California waters.

AWO’s letter follows California Gov. Gavin Newsom veto of AB 1122, a bipartisan bill that was supported by all but one California legislator. AB 1122 would have mitigated the pending CARB rule for marine vessels by preventing it from requiring DPFs unless they are allowed an appropriate time for development and testing.

DPFs are miniature furnaces that operate at very high temperatures to burn off particles after trapping them in filters, which is why the Coast Guard considers them a safety risk. When they were required for trucks beginning in 2006, DPFs caused truck fires, including some that became wildfires. The AWO letter notes, “While any fire emergency is serious, a vessel fire on water is much more dangerous than a truck fire on land. A truck driver can exit the vehicle and run from the danger. A vessel crew must attempt to fight the fire and, if they are unsuccessful in containing it, abandon ship in hazardous conditions.”

Trucks with DPFs must park during the burnoff or regeneration phase, but marine engines must continuously be available. AB 1122 also would have required marine DPFs to have a bypass switch to allow them to be shutoff during times of high horsepower demand. The bill also would have given vessel operators increased flexibility to install any CARB-mandated equipment during already-scheduled vessel inspection periods, so that vessels performing essential port functions might not be excessively pulled out of service.

Waiver Authority

The EPA has authority to act in this matter because California’s air pollution rules operate according to a waiver enacted when the first nationwide Clean Air Act (CAA) was passed by Congress in 1960. At that time, Los Angeles’ smog was nationally recognized as an urgent problem, so California was given special permission under the CAA waiver to enact air quality regulations more stringent than federal ones. According to the Environmental Defense Fund, California has received more than 75 waivers from the EPA.

On its website, CARB explains the federal conditions of its CAA waiver.

• California’s air quality standards must be at least as protective as federal standards.
• The state’s determination of that fact must not be “arbitrary and capricious.”
• California must show that its stricter standards are needed to meet compelling and extraordinary conditions.
• California’s standards must not be “inconsistent with certain Clean Air Act provisions related to technical feasibility and lead time to manufacturers.”

The CARB mandate to install DPFs on vessels without an adequate lead time, testing or safety safeguards—even after the Coast Guard has said it will not examine or approve them—ignores the technical feasibility requirement, those asking for the waiver rejection say. The letter states, “[W]e do not believe that the CHC rule’s mandate to install DPFs within six months of commercial availability meets the criteria for EPA authorization under CAA section 209(e). If CARB determines that a DPF is commercially available (setting aside whether the Coast Guard has approved its installation), it will likely take more than a year for vessel operators to perform the required design and safety studies before bids can be solicited, materials procured, drydocks scheduled and work completed. As there are only five drydocks in California that have the capacity to carry out such drastic retrofits, we estimate that compliance would take a minimum of 18 months at a cost of $5 million per vessel.”

No Waiver Revocation Process

According to CARB, there is no Clean Air Act process for revoking a waiver, “which makes sense because governments and industry rely on waivers for years after they are granted to deliver clean vehicles and develop clean air plans.” Even a waiver denial is “incredibly rare,” CARB says. In 2008, the EPA initially denied California’s waiver for greenhouse gas emission standards for 2009 and later model year light-duty motor vehicles. That denial was related to multiple lawsuits filed by the trucking industry in the wake of the DPF mandate for trucks in 2006. Both the decision to deny the waiver under President George W. Bush and then to re-grant it under President Barack Obama were highly controversial and politicized. The trucking industry continues to challenge CARB’s waivers and mandates.

Supply Chain Crisis

The AWO letter reminds the EPA that even though considering economic impacts is beyond EPA’s scope, “[I]t is very important for the Biden administration to recognize the economic consequences of approving CARB’s authorization request. Over 50,000 California jobs and more than $12.2 billion in state economic activity are driven by the U.S. vessels operating in California and the Americans that crew them. … California is home to three of the country’s top 10 busiest container ports and also serves as a vital global gateway for agricultural products, vehicles, energy products and other critical waterborne cargoes—meaning that any disruptions to the movement of goods in California are felt by consumers, producers and farmers across the country.”

The letter said 72 fewer towing vessels are operating in California since CARB began enforcing its rule. “If EPA authorizes CARB to enforce the CHC rule, our organizations expect more operators to pull vessels out of service as it becomes practically and financially infeasible to comply,” the letter stated. “Fewer tugboats and other commercial harbor craft will delay goods movement and increase the sensitivity of the maritime supply chain to disruption, escalating costs nationwide for both producers and consumers. We saw a demonstration of this effect during the COVID-19 pandemic, when supply chain disruptions and port delays led to historically high prices for U.S. imports. The Biden administration should not allow the shortsighted regulatory decisions of a single state to jeopardize the nation’s economy.”

Ben Lerner, AWO’s vice president of public affairs and communications, said, “Right now, we are focused on conveying to EPA that California’s CHC rule clearly runs afoul of the Clean Air Act due to the rule’s technological infeasibility, lack of adequate lead time and inadequate cost considerations, and that granting California a waiver to enforce the CHC rule will put mariner lives and the stability of the U.S. supply chain at risk. We urge the EPA to deny California permission to enforce this dangerous rule, and we urge the California Air Resources Board to instead work more constructively with the domestic maritime industry to craft and implement safe and feasible solutions to achieve our shared sustainability goals.”