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ARB’s diesel rule-making deeply flawed, member says

By John Howard | 12/03/09 12:00 AM PST


A year ago, on the eve of approving a landmark regulation curbing diesel soot from a million trucks and school buses, there was a sharp, behind-the-scenes discussion at the Air Resources Board.

Top ARB officials, including the executive director and the chairwoman of the board, learned by the night of Dec. 10, 2008, that the project leader of a crucial study on diesel pollution-related fatalities had falsified his credentials, claiming he had a Ph.D. Actually, he didn’t.

Emails reviewed by Capitol Weekly indicate that three other board members also were aware of the concerns prior to the vote.

But nobody informed the full, 11-member board before it began to deliberate on the regulation the following morning – a regulation that was based, at least in part, on the findings of the study.

That failure casts doubt on the integrity of the ARB’s decision-making procedures, one board member wrote two weeks ago in an internal letter to the ARB’s top legal officer. He did not challenge the validity of the key study -- although others have. What was challenged was the failure to disclose information.

“I believe the legitimacy of the vote to be in question,” wrote Fresno cardiologist John G. Telles, who represents the San Joaquin Valley Air Pollution Control District on the board.

He said that it was not “until nine months later at the public meeting of CARB in Diamond Bar, after public testimony raised this issue, that the staff informed the board for the first time that the project coordinator and lead author of the Truck Rule had falsified his credentials.”

The staff “made no mention of the fact that they possessed this information prior to the vote,” Telles noted. He said ARB Chairwoman Mary Nichols also was aware of the credentials dispute but that she, too, did not alert the larger board.

“The public, of course, was also not informed,” he added.

Telles made the comments in a Nov. 16 letter to ARB Chief Counsel Ellen Peter. His letter reflected his own concerns, but they were similar to the concerns raised by others who spoke with Capitol Weekly, both from within the ARB and from outside the government.  

Peter, responding to Telles, said questions about the author’s credentials had been raised during the public comment period on the regulation and that “there was no violation of the procedural statutory requirements. Since there is no internal ARB rule requiring staff to notify board members of any particular type of comment, there can be no procedural violation on that basis.”

Telles’ letter capped months of internal ARB discussion about the issue, as well as the April 2009 disciplining and demotion of the ARB staffer and report-project coordinator, Hien T. Tran.

The ARB, in part, based its truck rule decision on the final report, “Methodology for Estimating Premature Death Associated with Long-Term Exposure to Fine Airborne Particulate Matter in California.”

Questions about Tran’s credentials and the report he authored were raised weeks before the December 2008 vote by several experts.

The critics included James Enstrom, a veteran epidemiologist at the Jonsson Comprehensive Cancer Center at UCLA. Those concerns were reported by at least one publication, the San Diego Union-Tribune, which learned of the issue and followed it closely starting on Dec. 17, 2008, according to Telles’ letter.

Enstrom questioned findings in the report, noting that the authors of the study, including Tran, had “no relevant peer-reviewed publications,” according to the ARB’s “Notice of Adverse Action,” the official discipline document which it filed against Tran.

Another critic of the study was North Carolina-based statistician S. Stanley Young of the National Institute of Statistical Sciences, who wrote Gov. Schwarzenegger in July 2008 and noted that “none of the authors are professional statisticians.”

“Some are trained in epidemiology,” he added. “It is useful to know that the track record of epidemiologists in the use of statistics to make claims that are reproducible is very poor.” Four months later, a month before the ARB voted on the regulation, Young was told by the Schwarzenegger administration that Tran held a doctorate in statistics from UC Davis.

The ARB stands behind the scientific validity of Tran’s study, as does Telles.

James Goldstene, the ARB’s executive officer, said the report “went through three levels of formal, independent, external peer review before the report was finalized, and did not rely on the health research or original work of ARB staff.” Goldstene said the findings were then reviewed again when the ARB asked its 10 expert advisers to examine the report – nine stood by their earlier findings, and one did not respond. The ARB staff provided copies of the comments of Peters and Goldstene.

The board notes that the study ultimately was peer-reviewed by a number of experts, “with all reviewers finding out it was methodology scientifically sound and reasonable.” But because the report “provides input into the regulation, which in turn results in increased regulations to the trucking industry (whose affects are far reaching), the credibility of the lead author and project coordinator is paramount,” the ARB noted in its adverse action report.

The ARB, the nation’s premier air-quality enforcer, makes far-reaching decisions that often directly affect the pocketbooks of business, manufacturing, transportation and other interests. The board’s regulations are followed closely by other states, particularly in the heavily populated and industrialized Northeast.

Because its regulations have a fiscal impact, the ARB often is targeted by well-heeled interests seeking to soften, or block entirely, its regulations.

The diesel regulation was hotly opposed by the trucking industry and a number of strapped school-transportation offices, among others, and supported by health advocates and environmentalists. The rule was approved after a series of public hearings and contentious debate.

The ARB estimated the economic impact of the regulation at $4.4 billion to $5.4 billion, an amount that reflects the costs of equipping trucks with anti-pollution devices that can cost $20,000 each. The regulation will be phased in over a decade.

The ARB said the regulation would curb the documented health impacts of diesel soot, which results in some 1,000 premature deaths annually in California, 320,000 cases of asthma-related illnesses, 2,400 hospital admissions and 2 million lost workdays. Health care costs associated with diesel soot run in the “tens of billions of dollars.”

Telles said “the scientific validity of the report is not the issue, but rather at issue is a fundamental violation of procedure. Failure to reveal this information to the board prior to the vote not only casts doubt upon the legitimacy of the truck rule but also upon the legitimacy of CARB itself.”

The phased-in rule requires truck owners, starting in 2011, to install diesel soot filters on their rigs, with nearly all vehicles upgraded by 2014. Truck owners also must gradually replace engines older than the 2010 model year during a 10-year schedule from 2012 through 2022.