CARB acted like 'mob enforcer'

APRIL 14, 2010

By ANTHONY PIGNATARO

The metaphor Kit Enger uses most often when talking about the California Air Resources Board (CARB) is that of the mob enforcer. As in, “It was like I was forced to buy protection from a mob leader.” That was just in his discussion with me; when he testified before CARB itself, back On Nov. 19, 2009, he was even more graphic, telling the board that a CARB enforcement officer told him on two occasions, “If you guys don’t get on with this settlement, it doesn’t matter to us if you go out of business, change your name, move to another state, or die, we will find you and attach your assets.”

Enger is president of the Compliant Car Builders Association in Oceanside. They’re a coalition of 37 dune buggy and off-road vehicle manufacturers who ran afoul of CARB last year to the tune of $3.6 million, which they eventually whittled down to a settlement of $600,000 in April 2009. Their crime? Selling “illegal engines” – the phrase comes straight from an April 2, 2009 CARB press release – from 2006 to 2008.

Enger and the Association – which is currently pushing for a new law to change the way CARB enforces its regulations – agreed to pay their fines. But then they realized that CARB was apparently trying to enforce a law – which dated to Aug. 15, 2007 – that hadn’t even been on the books when the companies in the Association built many of the alleged “illegal engines.” That led to Enger and the Association filing a petition last October with the California Office of Administrative Law.

The Administrative Law Office declined to accept Enger’s petition, said Director Susan Lapsley. She declined to say why – the office’s governing statute says her office can keep its reasoning private – but her Jan. 7, 2010 letter to Enger said the rejection “in no way reflects on the merits of the underlying issue” or constitutes “a judgment or opinion on any issue raised” by the petition. Regardless, Enger’s petition is worth exploring in some detail, if only because it illustrates the actions of CARB, a growing force in state environmental regulation that generally operates without much scrutiny.

“CARB unlawfully used an underground regulation against the sand car industry,” the petition states. “Approximately two-thirds (or more) of the vehicles and engines subject to the April 2009 settlement were manufactured, distributed, or sold prior to August 15, 2007. For these vehicles and engines, this constitutes the unlawful enforcement using an underground regulation.”

CARB spokesperson Karen Caesar had no comment on the Sand Car Association petition beyond the press releases they’ve already published, though another member of the CARB media relations office said the Administrative Law Office petition didn’t surprise him because Enger had been so “acrimonious” about the whole affair. At the time of the $600,000 settlement, CARB released a press release that basically wagged a finger at the Sand Car Association. “Uncontrolled emissions from these vehicles add to California’s already serious smog problems,” CARB Chairman Mary D. Nichols said ominously in the above press release (the “chairman” title appears in the original).

But on April 20, 2009, CARB released another statement saying the whole matter made for a better, stronger industry: “This is a win-win for air quality and the sandcar [sic] industry, because the industry is now using ARB certified engines and self enforcing its members to comply.”

The whole issue of how the Sand Car Association’s “illegal” engines were allegedly harming the environment is ambiguous. Enger says no one from CARB ever provided him with an analysis of how much additional pollution his engines were putting out because they never tested them. “I never received anything in writing showing an increase in pollution from our modified engines,” Enger said. “I also never received a written notice of violation. And I never got any justification as to how CARB first arrived at the $3.6 million fine.”

Enger said this whole thing first came up back in September 2006, when CARB officials told him they were proposing new air pollution regulations for sand car engines. The next month, Enger said, CARB held an “implementation outreach workshop” with association members, where they explained how the companies could comply with the new regs. “Between September 2006, and January 2007, the sand car industry worked cooperatively and diligently with CARB certification staff to devise a program whereby all industry members could efficiently and effectively certify their vehicles and engines,” Enger wrote in a declaration filed with his October 2009 petition.

Things seemed to be going well. Enger says the sand car industry worked all through 2007 to get their vehicles into compliance. “By December 2007,” Enger wrote in his petition, “most engine providers of the Sand Car Association had successfully and timely certified the engines used by the industry to CARB under the OHRV [off-highway recreational vehicle] regulations, which had only become effective on August 15, 2007.”

Then the wheels came off. Enger said that in January 2008. CARB suddenly turned around and told him that “all of the MY [Model Year] 2007 sand cars and engines were in violation of CARB’s OHRV certification requirements,” Enger wrote in his petition. Soon after, CARB officials told Enger’s association that they owed $3.6 million in penalties – a number that Enger said CARB never explained.

Though his group had already signed onto the $600,000 settlement, when he found out CARB was, in effect, carrying out an ex post facto prosecution by fining him for engines that were modified before the new regulations went into effect, Enger appeared before the Air Resources Board on Nov. 19, 2009 and asked them to reopen the whole matter. “We respectfully request for CARB to rescind our settlement as it was fraudulently obtained and return to our members the ill-gotten $600,000 penalty,” he asked.

They said no.

“CARB is unaccountable,” was how one legislative aide familiar the Air Resources Board put it. “They’re a sacred cow.”

Since his petition with the Administrative Law Office went nowhere, Enger is helping promote SB1402. Introduced Feb. 19 by Senator Bob Dutton and cosponsored by a bipartisan coalition of eight other senators, the bill calls for multiple reforms of CARB, including an annual report to the Legislature and governor from the board on all administrative penalties they impose and the right of those accused of violations to an administrative hearing “in lieu of a civil action.” The Senate Environmental Quality Committee will take up the bill on April 19.

“This whole thing has been a frickin’ disaster,” Enger said. “My lawyers said it would cost more than $600,000 to fight it, so we might as well pay it. It’s like a protection racket – government out of control.”