Revised California Air Resources Board (CARB) Enforcement Policy

By Chuck White, Senior Adviser, Environment

Summary

CARB is in the process of revising their existing Enforcement Policy. They have been holding a series of informal workshops to update the policy consistent with current statutes. CARB’s current plan is to adopt this updated policy in late September 2017. The principal motivating factor to adopt a revised Enforcement Policy is the passage of last year’s AB 1865 that significantly increased the enforcement and penalties for mobile sources and expanded CARB’s authority in this area—largely in reaction to the defeat devices on certain vehicles sold in California (and elsewhere) used to avoid compliance with California Air Pollution laws. Maximum mobile source penalties were increased by AB 1865 from $5,000 to $37,500 per vehicle per violation—and will be further adjusted in accordance with the CPI in the future.

There is an impending August 1 comment deadline on the currently proposed Enforcement Policy revision. If there are significant concerns, the CARB may convene another workgroup meeting and schedule further workshops prior to taking the matter to the board in late September. Here are a few of the major concerns Manatt has identified thus far with the policy as currently proposed:

1. With respect to the issue of fairness, how will violations at large operations be compared to those at smaller operations? As recently discussed at a CARB workshop, will larger facilities be expected to pay higher fines due to their size as compared to smaller facilities? Or will it be recognized that larger facilities are likely to have more violative occurrences simply due to size?

2. There is a new provision for “minor violations” that could result in a 75% to 100% reduction in penalties. However, it is not clear what would constitute a minor violation. Any recordkeeping or violation of an emission standard would appear to be precluded from being considered “minor.”

3. In most cases, local air districts focus on stationary sources while CARB focuses on mobile sources. However, there are situations when this line is not clearly drawn. It is not clear whether facilities will be protected from “double jeopardy” in situations where CARB and an air district both have enforcement interests and authority over the same matter.

4. The policy states that information pertaining to pending investigations is “generally” not released to the public. However, it is not clear to what limitations the term “generally” may refer. Industries should be very concerned about the release of information to the public related to an ongoing pending investigation before a formal enforcement action is taken—except in situations posing an imminent and substantial threat. Further clarity should be considered by CARB here.

More Detailed Background Information

Comments are due on this policy by August 1, 2017. Further workgroups and workshops may be held if there are any significant further changes contemplated; however, the CARB intends to take this matter before the board for adoption in late September.

Although anyone potentially subject to CARB enforcement should review the complete text, here are some key points:

• The policy addresses civil, administrative and criminal penalties.
• The policy briefly elaborates on the eight statutory factors that are all required to be considered in assessing penalties (briefly abbreviated here):

1. Extent of harm caused by the violation

2. Nature and persistence of the violation

3. Compliance history of the defendant

4. Preventive efforts taken by the defendant

5. Innovative nature and the magnitude of effort required to comply

6. Efforts of the defendant to attain or provide for compliance prior to the violation

7. Cooperation of the defendant during the investigation, including mitigation efforts

8. Financial burden to the defendant

• The policy also briefly discusses five additional non-statutory factors to be considered:

1. Deterrence of defendant and others from future violations

2. Fairness including the size of the responsible party

3. Investigation costs and litigation risks

4. Impact on regulatory program (e.g., failure to maintain records)

5. Voluntary disclosure to allow a 25% to 75% reduction in assessed penalties (several factors listed here are needed to allow credit for voluntary disclosure)

• It is not clear how the fairness issue and financial burden issues will be balanced between larger and smaller operations that are otherwise similar in nature. Should larger facilities be penalized more for the same violation occurring at a smaller facility? Or, conversely, should a larger facility be allowed a greater number of similar violations than a smaller facility due to its size and greater “likelihood” of a violation?
• Minor violations are also discussed to allow up to 75% to 100% reduction in penalties. However, as raised at a recent workshop, it is still not absolutely clear what constitutes a “minor” violation. Any violation that results in an air emission exceeding standards or a failure to maintain records would not be “minor.”
• Supplemental Environmental Projects may be used to replace up to 50% of the penalty. More detail is provided in an appendix to the draft policy consistent with the existing CARB SEP policy.
• The policy addresses coordination with local air district enforcement programs. However, in some situations it is not always clear which—the CARB or a district—is the lead enforcement authority. The policy does not have any strong language that would eliminate the possibility of double-jeopardy penalties by both the CARB and a district.
• The policy discusses public communication and information protection. Once an investigation has been completed and enforcement action initiated, CARB is free to release information to the public. In addition, the policy states that “information relating to pending investigations is ‘generally’ not released to protect the integrity of the investigation . . .” It is not clear what exception the term “generally” may or may not allow. It would be appropriate to seek further clarification of this point and request absolute protection of information related to pending investigations that do not pose an imminent and substantial threat.
• The policy also includes the following appendices:

Appendix A: List of CARB enforcement programs (although the recently adopted Oil and Gas Methane rule appears to be missing).

Appendix B: Regulatory Matrix (but proposed text is missing from the current version). This matrix should be provided for informal review prior to final CARB action.

Appendix C: Supplemental Environmental Projects Policy.

Appendix D: CARB Automated License Plate Reader Privacy and Usage Policy.

If you have comments, questions or concerns regarding this pending Enforcement Policy Revision, please contact Chuck White at Manatt.