The Federal Environmental Protection Agency (EPA) announced October 8th that they were beginning to enforce California’s Heavy-Duty Diesel Truck and Bus Regulation on operators located outside the state, sending ripples of concern throughout the trucking industry and truck broker communities nationwide.
The announcement came during a hastily called telephone press conference detailing a nearly $400,000 “settlement” by Estes Express Lines, headquartered in Richmond, Virginia, for alleged violations of the California Air Resources Board (CARB) seven-year-old truck rule.
Rob Estes, president and CEO of Estes Express Lines in a related interview with HDT Magazine was apologetic about his company’s fine saying: “We would never knowingly be out of compliance with any state or federal law.” He added, “We regret that the first-ever federal action taken to enforce the California Truck and Bus Regulation is associated with the good name of our nearly 85-year-old company.”
There were two violations discussed during the press conference:
- Estes operated 73 trucks in California (about 15 percent of their fleet used in the state) from 2012 without either CARB-approved diesel particulate filters (DPF) or with newer than 2010 emission certified engines, and;
- Estes failed to verify compliance with the Truck and Bus Regulation for eight subcontracted motor carrier companies (EPA declined to disclose how many brokered trucks were involved).
In addition to Estes, Jared Blumenfeld, EPA Region Nine administrator, said the agency was working with CARB to investigate at least a dozen other national carriers with trucks operating in California. Estes, with 6,500 company owned trucks was the first caught in the EPA/CARB net, but will not be the last according to Blumenfeld.
Federal Enforcement – why?
Blumenfeld said the federal agency was able to enforce state law because the truck and bus rule had been incorporated in the EPA’s jurisdiction by adoption of a “state implementation plan (SIP)” in 2012. These SIP adoptions are the way states update their compliance with federal regulations, after going through the lengthy bureaucratic process of passing new regulations.
The Western States Trucking Association (WSTA) through its predecessor organizations (California Dump Truck Owners Association – CDTOA and California Construction Trucking Association – CCTA), has been actively involved in the entire regulatory process leading up to the adoption of the truck and bus rule ultimately leading to the association filing a lawsuit challenging the rules legality.
It’s completely unfair that both the state and federal governments can enforce a California rule against in-state and out-of-state truckers, but WSTA has been denied use of California’s courts to litigate against this very same rule.
The same argument EPA is using for its broad enforcement authority – the adopted federal SIP contained the state’s Truck and Bus Rule – is being used by CARB in association litigation as a reason why the merits of our case can’t proceed – despite the SIP being approved seven months after our lawsuit was filed. Nevertheless, because of this continued injustice we have appealed the Ninth Circuit Court of Appeals decision to the U.S. Supreme Court which was denied (see page 6).
During our efforts to stop, or at least slow down this unnecessary regulation (which included dozens of meetings with CARB staff, appearances before the agency’s board and lawsuits. We warned truckers across the country that this would not remain a “California Problem.” Well, now those words are looking prescient.
CARB thought other left-leaning states would adopt the diesel regulations but none have. A handful of liberal cities (notably New York and Chicago) have adopted DPF requirements for in-use trucks competing for public works contracts but none of the other portions of the truck and bus rules.
So CARB and EPA went back to their playbook and pulled out the SIP adoption card, something they used during our legal action to try to get the case thrown out of court by federalizing state law.
Now they are claiming that EPA can attack out-of-state truckers under the state rules if they dare cross into California.
Estes Express Lines is a billion dollar trucking company and could have spent a bit of that money to challenge the EPA/CARB legal theory. Instead they opted to settle out-of-court, paying a $100,000 fine to the federal treasury and submitted to other “Greenmail,” supporting the following CARB-favored initiatives:
- $35,000 to the University of California, Davis to implement a state-approved training program for out-of-state trucking firms on compliance with the rule.
- $255,400 to the San Joaquin Valley Air Pollution Control District’s “Burn Cleaner Incentive Program” that will be used to replace around 80 wood-burning fireplaces with cleaner ones. So, instead of money going to small trucking businesses for retrofits (Blumenfeld said EPA had another program for that, but it can’t be used in California because of the regulations here), it’s going to homeowners for pellet stoves – are we the only ones that see’s just how crazy this enviro-mental craziness has become in the pursuit of pristine air – it will never be good enough.
- And, from now on, Estes operates only new trucks in California, running their older units in the 49 other states.
Granted, the $390,400 (plus legal expenses) may have seemed like a bargain, but we hope the next out-of-state trucker to get nailed by the EPA will at least give us a call to talk about taking a road less traveled, but more useful to the rest of the industry.
What’s truly another significant concern in this “dual over-lapping agency” enforcement action is that brokers (even based outside of California) will be subject to the extreme enforcement and penalty whims of CARB. The truck brokering world should pay close attention to CARB vehicle reporting and compliance! We are aware that one of the largest brokers in the country has previously thumbed their nose at accountability for trucks dispatched to California thinking they were immune. Perhaps they have hired new legal counsel?
Clearly, the trucking industry is afraid of the environmental movement and the negative media and social propaganda that can be brought against companies like Estes. Many in the industry believe that there is a tipping point and in California it may come sooner than later. Business leaders and the public can’t be deceive forever – or can they?
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