Alexandria, VA – September 30, 2010 – Californians for Enforcement Reform and Transparency (CERT) today announced that on September 28, 2010, Governor Schwarzenegger signed SB1402 into law. SB1402 immediately requires the California Air Resources Board’s (CARB) enforcement program to be transparent, consistent and fair.  CERT members applaud the Governor for signing this good government bill into law.  

Former CARB Chairman and CERT member, John Dunlap, said, “We’re glad to see the bill signed so quickly and look forward to working with CARB to implement this bill.  These reforms will help change the perception that CARB’s penalties are arbitrary and inconsistent, which will help restore the faith of the California business community.” 

CERT is a diverse group of industries and trade associations with the goal of working cooperatively with CARB to enhance its compliance and enforcement programs. 

Senator Dutton, the incoming Republican Senate leader who drafted and sponsored the legislation, stated, “CARB holds businesses accountable when they violate the California regulations they oversee.  The problem is that there was nothing that held CARB accountable in how the penalties were determined or the reason for the violation. This important piece of legislation is a significant step in the right direction in showing the business community that the State of California is willing to work with them.” 

CARB is charged with attaining and maintaining air quality standards in the State of California, which includes the enforcement of air quality standards.  Currently, it is not clear whether and how CARB applies criteria or policies when it assesses penalties.  This resulted in a subjective, ad hoc enforcement program that did not clearly or consistently distinguish serious violations that harm air quality from minor administrative glitches. 

With the exception of a formal penalty policy, which CARB is required to publish by March 1, 2011, SB1402 takes effect immediately.  The new rules will require CARB to: 

• provide a clear explanation of how penalties are assessed on a per-unit basis,
• develop a written, consistent penalty policy that ensures the largest penalties are imposed on serious violations that adversely impact air quality (due March 2011), and
• report those penalties to the Legislature annually.

 For more information on CERT and its positions go to www.certreform.org. 

Members of CERT are: American Home Furnishing Alliance; California Chapter of the American Fence Contractors Association; California Dump Truck Owner Association; California Motorcycle Dealers Association; California Moving and Storage Association; California Retailers Association; Construction Industry Air Quality Coalition; Engineering Contractors Association; Flasher/Barricade Association; Independent Waste Oil Collectors and Transporters; Marine Builders Association; Moving and Storage Association; National Marine Manufacturers Association; Outdoor Power Equipment Institute; Sand Car Manufacturers Association; Southern California Contractors Association; California Manufacturers and Technology Association.

SACRAMENTO – A significant pro-business piece of legislation authored by Senate Republican Leader-elect Bob Dutton (R-Rancho Cucamonga) that forces the California Air Resources Board (CARB) to explain their actions more clearly to the businesses they regulate was signed into law this week by the governor.

Senate Bill 1402 requires CARB to explain how it determined a penalty levied against a business, the reason for the violation and the specific code section violated.

Because SB 1402 contained an urgency clause and was approved by more than two-thirds of the Legislature, the law takes effect immediately.

“CARB holds businesses accountable when they violate the California regulations they oversee,” Senator Dutton said. “The problem is that there was nothing that held CARB accountable in how the penalties were determined or the reason for the violation. This important piece of legislation is a significant step in the right direction in showing the business community that the State of California is willing to work with them.”

“Under the current situation, the public and the regulated community are left in the dark about how CARB calculates penalties,” said former CARB Chairman Jon Dunlap. “This leads to the perception that CARB’s proposed penalties are arbitrary and inconsistent – which in turn results in protracted enforcement disputes and litigation.”

While Senator Dutton said SB 1402 is important, more must be done to help the California business community.

“California is the most expensive place in the nation to do business,” Senator Dutton said. “Many of those expenses are the result of this state over regulating the businesses here to the point where California has the third highest unemployment rate in the nation. The 2.3 million people out of work in California want a job. To get these people back to work, we need to do everything we can to create an environment that is friendly to business.”

Senator Republican Leader-Elect Bob Dutton (R–Rancho Cucamonga) serves as the Republican point person on jobs, budget and energy issues.  Mr. Dutton has more than forty years of experience in the private sector and is the founder and owner of a successful Inland Empire business.  For more information, please see www.sen.ca.gov/Dutton.

Alexandria, VA – August 30, 2010 – The Outdoor Power Equipment Institute (OPEI) today announced that on August 26, 2010, in a unanimous 32-0 vote, the California State Senate adopted SB 1402, a bill that will begin to make the California Air Resources Board’s (CARB) enforcement program transparent, consistent and fair.  OPEI and its CERT partners applaud the legislature’s adoption of SB 1402 without a single negative vote, and now urge the Governor to sign SB 1402 into law. 

OPEI is a founding partner of and one of 17 national and California-based associations that belong to Californians for Enforcement Reform and Transparency (CERT).  CERT is committed to working cooperatively with CARB to enhance CARB’s compliance and enforcement programs. 

Senator Dutton, the incoming Republican Senate leader who drafted and sponsored the legislation, stated: “I urge the Governor to sign this legislation, which has received unanimous bipartisan support.  This bill will help private businesses in California achieve fair and consistent settlements.  This legislation also helps create greater transparency at CARB, which will ultimately help this state retain and create jobs in California.”

CARB is charged with attaining and maintaining air quality standards in the State of California, which includes the enforcement of air quality standards.  Currently, it is not clear whether and how CARB applies criteria or policies when it assesses penalties.  This results in a subjective, ad hoc enforcement program that does not clearly or consistently distinguish serious violations that harm air quality from minor administrative glitches. 

For that reason, former CARB Chairman, John Dunlap, explained that “Under the current situation, the public and the regulated community are left in the dark about how CARB calculates penalties.  This leads to the perception that CARB’s proposed penalties are arbitrary and inconsistent – which in turn results in protracted enforcement disputes and litigation.” 

If signed into law, the new rules will require CARB to:

• provide a clear explanation of how penalties are assessed on a per-unit basis,
• develop a written, consistent penalty policy that ensures the largest penalties are imposed on serious violations that adversely impact air quality, and
• report those penalties to the Legislature annually.

Kris Kiser, Executive Vice President of the Outdoor Power Equipment Institute said “Too often, CARB’s enforcement actions against non-compliant, unsafe products from off-shore, new market entrants appear less aggressive than CARB’s actions taken against ‘deep pocket,’ reputable manufacturers for minor administrative errors.  SB 1402 will help CARB address this problem in a thoughtful and consistent manner.  OPEI looks forward to continuing its long-term partnership with CARB and the US EPA to create a transparent, fair and even playing field where there is strong enforcement against gross violations from non-compliant products.”

About the Outdoor Power Equipment Institute

OPEI is an international trade association representing the $15 billion landscape, forestry, utility and lawn and garden equipment manufacturing industry. OPEI is a recognized Standards Development Organization for the American National Standards Institute (ANSI) and active internationally through the International Standards Organization (ISO) in the development of safety standards. Founded in 1952, OPEI represents and promotes the outdoor power equipment industry and ensures the public may continue to benefit from the economic, lifestyle and environmental contributions of lawns and landscapes. For more information on OPEI, visit www.OPEI.org. 

For more information on CERT and its positions go to www.certreform.org.

Caroline March-Long
On Behalf of OPEI
434-295-5938 – office/ 434-760-1948- mobile
Caroline@FourLeafPR.com

Kris Kiser
Executive Vice President
OPEI
(703) 549-7600
KKiser@OPEI.org

Members of CERT are: American Home Furnishing Alliance; California Chapter of the American Fence Contractors Association; California Dump Truck Owner Association; California Motorcycle Dealers Association; California Moving and Storage Association; California Retailers Association; Construction Industry Air Quality Coalition; Engineering Contractors Association; Flasher/Barricade Association; Independent Waste Oil Collectors and Transporters; Marine Builders Association; Moving and Storage Association; National Marine Manufacturers Association; Outdoor Power Equipment Institute; Sand Car Manufacturers Association; Southern California Contractors Association; California Manufacturers and Technology Association.

Former CARB Chairman, John Dunlap, sees this bill as a critical first step towards improving CARB’s enforcement program. “The California Senate and the regulated community fully agree that the largest penalties should be consistently imposed in a transparent manner on gross violations that harm air quality.  This bill will ensure that CARB’s enforcement resources are focused on its most important objective – protecting California’s air quality.”

If signed into law, the new rules will require CARB to be open and up front with the regulated community about how and why it imposes penalties. The bill will also require CARB to adopt a formal enforcement policy by March, 2011.

“This bill ensures an enforcement process that is publicly visible, easily understood and implemented in a clear and consistent manner – all fundamental tenets of an open, transparent, good government,” said Bill Guerry, counsel to Californians for Enforcement Reform and Transparency (CERT).  Kris Kiser, Executive Vice President of the Outdoor Power Equipment Institute, a CERT-member organization said “A unanimous 32-0 vote out of the California Senate sends a clear signal that the California legislature recognizes the common-sense merits of our argument for enforcement reforms at CARB.”  The bill will be considered by the California Assembly Natural Resources Committee in the coming weeks.

Californians for Enforcement-Reform and Transparency is a diverse group of industries and trade associations with the goal of working cooperatively with CARB to enhance CARB’ s compliance and enforcement programs.

*          *          *

Environmental Partner William (Bill) Guerry and associate Eric Waeckerlin of the national law firm Kelley Drye & Warren LLP, have joined with John Dunlap of the Dunlap Group in Sacramento, California to form CERT. Together, the CERT team of lawyers and consultants have extraordinary expertise and experience in representing a wide array of manufacturing clients before EPA and CARB on enforcement matters as well as related government relations and regulatory activities. 

For more information on CERT and its positions go to www.certreform.org

CERT has succeeded in helping to develop proposed legislation in California that would promote “good government” policies and procedures to ensure CARB’s enforcement programs operate in a more transparent, equitable, and consistent manner and focus on grossly non-compliant products that harm air quality.  This proposed legislation has broad bipartisan support and is sponsored by nine Senators – roughly 25% of members of the California Senate.

Enclosed is a letter from April 2010 and materials prepared by CERT which supports this legislation.  On April 19^th, Bill Guerry presented the enclosed testimony to the California Senate Environmental Quality Committee at a hearing on the bill.  That committee unanimously adopted (with seven aye votes) a “scaled back” version of the Dutton/CERT bill. 

The adopted bill requires CARB to adopt a written penalty policy based on six objective criteria – primarily the violation’s impact on air quality – and requires CARB to be much more transparent in explaining the specific alleged violations and CARB’s basis of proposed penalties. 

The California Air Resources Board recently threw out a tainted study about the health effects of diesel truck emissions after it was disclosed that the author of the report had lied about his academic credentials. CARB officials had known since December 2008 that the researcher had falsified his credentials, but did not tell board members.

As a former CARB board member and chairman, I was heartened to see current Chairman Mary Nichols’ gracious apology at the Dec. 9 board meeting for the recent mistakes that have been made in the on- and off-road diesel rule-making process.

While it was noted and appreciated, more progress remains to be made in rebuilding confidence in several of CARB’s program areas.

As part of last month’s board meeting, the board itself, along with members of the regulated community, Legislature and Schwarzenegger administration, have stepped forward to demand transparency to ensure that recent past patterns not repeat themselves. The CARB board members who demonstrated their integrity by publicly questioning the sullied technical process surrounding the diesel rules will find parallels in the CARB staff’s treatment of the makers of sand cars, also called dune buggies – recreational vehicles with large tires designed for use on sandy terrain. And there are parallels to the treatment of members of the activist group Californians for Enforcement Reform and Transparency.

What has emerged, it seems, is an attitude and belief among some CARB staff that the ends justify the means and that full disclosure and transparency are not required before the board or the public. This runs counter to the very tenets of democratic law and due process.

It is a system that begs for scrutiny and reform and can only benefit from more board-level involvement. As it now stands, the CARB chief counsel plays the role of a sort-of regulatory sheriff, prosecutor and judge. It defies due process and fundamental separation-of-power principles that CARB staff – or any government official – could be allowed to assume all these positions of power – with unlimited discretion and without any meaningful checks and balances.

To make matters worse, the CARB staff does not make public its formula for assessing fines. Its coda: “We decide. You pay. No questions asked.” This system harms businesses and eliminates incentives that might have existed for California businesses – including thousands of small, struggling companies – to work proactively and cooperatively with CARB in seeking sensible, cost-effective paths to compliance.

In an especially egregious case, CARB bullied more than 35 small California businesses that manufacture sand cars by retroactively imposing emission rules on recreational vehicles built before the regulations even became law in August 2007.

CARB’s actions have real human consequences. Kit Enger, the head of the Sand Car Manufacturer Industry, told CARB recently that his members have been devastated by a settlement paid to CARB of more than $600,000. It has been widely reported that, as a direct result of the settlement, five sand car manufacturers were forced out of business.

As a former CARB chairman, I am keenly disappointed to see such conduct, which can only lead to a loss of trust and the erosion of CARB’s effectiveness as an agency, especially during economic hardships – a time when true, transparent leadership virtues are needed more than ever.

It should not work this way. Indeed, California’s leadership role in pollution matters is founded on a more honorable tradition, and one that proves more effective.

Make no mistake: Ensuring clean air is a vital mission for all Californians. Indeed, the state aspires to be a national and world leader in climate matters, which requires being above reproach on all internal processes. To achieve these goals and preserve its credibility and integrity, it is imperative that CARB act with openness and respect for the law.

CARB’s mission is devoted to cleaning the air. But in terms of the way it has operated in several areas, it must also clear the air.

Dunlap served as chairman of the California Air Resources Board from 1994-1999. He currently owns a California-based advocacy and consulting group that includes among its clientele Californians for Enforcement Reform and Transparency. For more information on possible CARB reforms, go online to www.certreform.org.

The group, Californians for Enforcement-Reform and Transparency (CERT), will appear at the state air quality public workshop to call for the board to spell out a clear enforcement policy and disclose how it allocates the money collected in settlements.

As part of improving the credibility of CARB’s enforcement program, the group will call for the board to publish an annual or bi-annual report detailing precisely how it assesses penalties under the Air Pollution Control Funds and how it spends the money it collects – “consistent with proper oversight and authority.”

The state board’s discussion of enforcement policies grows out of comments by Chairwoman Mary Nichols of CARB in a July hearing in which she strongly supported “regularizing and formalizing (CARB’s) penalty structures and procedures.”

She noted, “If we are not enforcing our regulations in a way that is seen by the public to be effective and fair, we might as well not be passing all the regulation that this board works hard to adopt.”

John Dunlap, a former chairman of CARB, supports the CERT goals and has endorsed the new group’s aims for what he has described as a “needed reform process.”

The goals of Chairwoman Nichols dovetail with CERT’s aims, according to Dunlap.

“This needed reform process will help achieve our mutual goals of reducing air pollution,” said Dunlap, “effectively prioritizing enforcement resources, and promoting compliance and integrity – through the adoption and implementation of a consistent, fair, and transparent penalty process.”

CERT supports a crackdown aimed at the most serious and deliberate violations (typically imports from off-shore, new market-entrants). The group has pointed to the penalty structure used by the United States Environmental Protection Agency as a possible model for the state board. The EPA formula has been effective in focusing on cases where pollution violations are the worst.

The group advocates for a system that imposes the heaviest penalties on the most serious, prolific violations. Such pollution should be regarded as a more serious risk, for example, than administrative paperwork oversights that cause no harm to the environment. It is calling for a structure that is publicly visible, easily understood, and enforced in a clear and consistent manner of good government.

George Lawrence, a former top official with the U.S. EPA, also supports CERT’s goals and objectives. Lawrence, the former head of the EPA’s Mobile Source Enforcement Branch, said the agency’s penalty formula, which has focused on cases that are most significant, has “instilled an important perception of fairness.”

“EPA’s penalty matrix has proven highly effective in focusing enforcement on cases where the impacts on the environment and avoided compliance costs are most significant,” said Lawrence. “It has also provided clarity to all stakeholders, including environmental groups.”

A lawyer for CERT, William Guerry, a partner with Kelley Drye & Warren LLP in Washington, said environmental, government and business leaders share a common stake in policy reforms that crack down on the most egregious polluters. Guerry argues that “CARB must adopt a more transparent system in terms of how they collect and spend penalty funds.”

“There should be an evaluation of whether settlement funds should ultimately go to the state,” Guerry said, “rather than being retained by CARB – in order to achieve CARB’s core mission, which is protecting air quality and preserving its integrity and credibility.”

For more information on CERT and its positions, as well as a comprehensive supporting “Note” by George Lawrence on the effectiveness of the EPA penalty policy, go to http://www.kelleydrye.com/news/press/0199.

Logistical information (including the public web-cast) for the October 12th workshop at 1 p.m. (PAC time) at 1001 I Street, Sacramento, Calif., can be found at http://www.arb.ca.gov/enf/meetings.htm

Contact: Jerry Azevedo 916-554-3404