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California's Air Resources Board Focuses Enforcement Efforts on Owners of Solid Waste Collection Vehicles July 20, 2010 by Michael E. Vergara mvergara@somachlaw.com |
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Recently, the California Air Resources Board (ARB) has focused its enforcement efforts on violations of its Solid Waste Collection Vehicle Rule (SWCV Rule). In fact, some of the largest administrative and civil penalty awards recently received by the ARB are the result of either administrative actions or civil actions prosecuted under the SWCV Rule. One such recent action was commenced against Key Disposal, Inc., and its principals. Background The ARB was established in 1967 “to promote and protect public health, welfare and ecological resources through the effective and efficient reduction of air pollutants, while recognizing and considering the effects on the state’s economy.” (Health & Saf. Code, § 39003; http://www.arb.ca.gov/html/mission.htm.) The Legislature divides the State geographically into 15 air basins “for the purpose of managing the air resources of the State on a regional basis.” (Health & Saf. Code, § 39001; http://www.arb.ca.gov/ei/maps/statemap/abmap.htm.) There are 35 separate local air districts operating within these basins, and they are responsible for “promulgating rules and regulations for stationary sources.” (Health & Saf. Code, § 39002; http://www.arb.ca.gov/html/lawsregs.htm; http://www.arb.ca.gov/drdb/drdbltxt.htm; http://www.arb.ca.gov/drdb/dismap.htm.) The Legislature, however, has allocated to the ARB primary responsibility for controlling air pollution from vehicular sources. (Health & Saf. Code, § 39002.) The Legislature directs the ARB to adopt standards, rules and regulations that are “consistent with the state goal of providing a decent home and suitable living environment for every Californian.” (Health & Saf. Code, § 39601, subd. (c).) The ARB is designated as the State’s “air pollution control agency” under the federal Clean Air Act, and the ARB is directed by the Legislature to enact standards, rules and regulations consistent with the Clean Air Act. (Health & Saf. Code, § 39602.) Among other legislative directives, the ARB is charged with taking immediate action to “implement both short-term and long-term programs of across-the-board reductions in vehicle emissions and smoke” from heavy-duty diesel vehicles. (Health & Saf. Code, § 43000.5, subd. (d).) Such action by the ARB, however, must equitably distribute the burden of achieving the reductions among the various classes of vehicles, and “be necessary, cost effective, and technologically feasible.” (Health & Saf. Code, §§ 43000.5, subd. (c), and 43013, subd. (a).) Moreover, the Legislature directs the ARB to adopt measures to reduce emissions from diesel powered vehicles “to the maximum extent feasible,” and the ARB is expressly empowered to implement regulations to carry out this directive. (Health & Saf. Code, §§ 43700 and 43701.) As part of its effort to comply with this directive, the ARB adopted the SWCV Rule. (Cal. Admin. Code, tit. 13, §§ 2021‑2021.2.) Application and Enforcement of SWCV Rule The ARB adopted the SWCV Rule in 2003 “to reduce the harmful health impacts of exhaust from diesel-fueled waste collection trucks.” (http://www.arb.ca.gov/msprog/swcv/swcv.htm.) The SWCV Rule mandates “the reduction of diesel particulate matter emissions from 1960 to 2006 model year engines in ... residential and commercial solid waste collection vehicles.” (Cal. Admin. Code, tit. 13, § 2021, subd. (a).) Under the SWCV Rule, a “solid waste collection vehicle” is defined as an “on-road heavy-duty vehicle with a manufacturer’s gross vehicle weight of greater than 14,000 pounds used for the purpose of collecting residential and commercial solid waste for a fee, including roll off vehicles.” (Id. at subd. (b).) Thus, the SWCV Rule not only applies to garbage trucks, it also applies to trucks that carry transfer trailers used to transport “residential and commercial solid waste.” (Ibid.) The phrase “residential and commercial solid waste” is broadly defined to cover all types of waste. (Ibid.) Furthermore, the SWCV Rule applies to all solid waste collection vehicles, including government owned vehicles and vehicles contracted to “municipalities.” (Id. at subd. (a).) The term “municipality” is broadly defined to include “a city, county, city and county, special district, or a public agency of the State of California, and any department, division, public corporation, or public agency of this State, or two or more entities acting jointly.” (Cal. Admin. Code, tit. 13, § 2020, subd. (b).) Any municipality that contracts for waste collection service on or after December 31, 2004, must include language in the contract requiring the owner of the solid waste collection vehicle(s) to comply with all applicable air pollution control laws. (Cal. Admin. Code, tit. 13, § 2021.1, subd. (a).) Municipalities must also submit an annual compliance report to the ARB by January 31st of each year until January 31, 2013. (Id. at subd. (b).) The required reporting form is located online. (http://www.arb.ca.gov/msprog/swcv/municipalitiesreport1.xls.) Failure to timely submit the report subjects the municipality to civil penalties. (Id. subd. (c).) To achieve the reductions in diesel particulate matter mandated by the SWCV Rule, the ARB requires that owners of solid waste collection vehicles must install “Best Available Control Technology” (BACT) on each applicable vehicle in its fleet according to a specified schedule. (Cal. Admin. Code, tit. 13, § 2021.2.) The compliance schedule formula is, in a word, convoluted. (Id. at subd. (c); http://www.arb.ca.gov/msprog/swcv/swcvq_and_a.htm#11, see section entitled “How do I calculate the number of vehicles to implement each year?”) The ARB estimates that the total average cost of compliance ranges between $3,000 and $90,000 per vehicle depending on the vehicle model year. (http://www.arb.ca.gov/msprog/swcv/swcvq_and_a.htm#11, see section entitled “What is it going to cost?”) To recover these costs, the ARB anticipates that owners of solid waste collection vehicles will shift the costs to their customers through increased fees. (Ibid.) [Note: The ARB’s suggestion that owners can simply pass the compliance costs onto their customers through fee increases ignores the constraints that Proposition 218 places on the owner’s ability to increase fees.] (See Understanding Proposition 218, Ch. 2, http://www.lao.ca.gov/1996/120196_prop_218/understanding_prop218_1296.html.) The Key Disposal Complaint and Judgment On June 20, 2008, the State Attorney General’s Office, acting on behalf of the ARB, commenced an action against Key Disposal and its principals (herein after “Defendants”) for violation of the Periodic Smoke Inspection Program (Cal. Admin. Code, tit. 13, § 2190, et seq. (PSIP)), and the SWCV Rule. (Complaint in People of the State of California, et al. v. Key Disposal, Inc., et al.) The complaint alleges five causes of action involving Defendants’ fleet of 24 vehicles. (Complaint at ¶ 33.) The engine model years for Defendants’ fleet range from 1978 to 2000. (Ibid.) The first cause of action is premised on Key Disposal’s alleged violation of the PSIP (id. at ¶¶ 25 through 34); and the second through fourth causes of action are based on Defendants’ alleged violation of the SWCV Rule (id. at ¶¶ 35 through 49). The fifth cause of action seeks injunctive relief based on both the PSIP and the SWCV Rule. (Id. at ¶¶ 50 through 52.) During a hearing held on May 26, 2009, in the Los Angeles Superior Court before the Honorable Robert H. Hess, the parties settled the action. (Transcript of Hearing dated May 26, 2009.) Under the terms of the settlement, Defendants agreed to enter into a stipulated judgment in the amount of $500,000. (Id. at 2:3-7.) The parties further agreed, however, to stay enforcement of this judgment pending Defendants’ payment of $250,000 over a 24-month period, and Defendants bringing their fleet into compliance with the PSIP and SWCV Rule within 120 days. (Id. at 2:3-4; 2:15-16; and 3:7-8.) On August 20, 2009, the Court entered a stipulated judgment in the case. (Stipulated Judgment And Order.) Under the terms of the stipulated judgment, Defendants had until September 29, 2009, to bring their fleet into compliance with the PSIP and the SWCV Rule. (Id. at 2:12-22.) The stipulated judgment also provides that if the ARB determines that Defendants fail to comply with the terms of the judgment, and if Defendants fail to achieve compliance after receiving the required notice and opportunity to “cure,” the ARB can file a motion with the Court seeking to enforce the entire $500,000 judgment less any amounts received. (Id. at 3:11-25.) The heading for the ARB’s press release for this matter states the following: “Southern California waste hauler fined $500,000 for diesel violations.” (http://www.arb.ca.gov/newsrel/2009/nr102309.htm.) As observed above, however, $250,000 of the stated fine is stayed pending further action. The press release also indicates that Defendants had an opportunity to stipulate to a lower penalty, but failed to act. (Ibid.) As might be expected, Defendants hold a very different view of their options in this matter. (http://www.allbusiness.com/government/government-bodies-offices-public/13490645-1.htm [“I really had no choice but to agree,” Katangian said. “The state has very broad powers. It’s tough to fight the Attorney General’s office. It’s really a form of extortion.”].) Conclusion The ARB has broad authority to enforce the SWCV Rule and other relevant regulations relating to solid waste collection vehicles. The most recent “What’s New…” alert on the SWCV webpage reminds municipalities of their obligation to submit the compliance report required under the SWCV Rule. (http://www.arb.ca.gov/msprog/swcv/swcv.htm.) Undoubtedly, the ARB will use the information obtained from the submitted reports to either create a database containing the names and terminal locations for the identified owners of the solid waste collection vehicles, or update its existing database, in preparation for conducting inspections. Owners of solid waste collection vehicles should prepare for such inspections, and familiarize themselves with the procedural notice and timing requirements for such inspections. (See Health & Saf. Code, § 43012.) For further information please contact Michael Vergara at 916-446-7979 or by email at mvergara@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
