CARB Restrictions Hit Everyone Big and Small

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Earlier this year, the California Air Resources Board, or CARB, started mailing out reminders to all vehicle owners who have a diesel vehicle previously registered with the DMV and having a gross vehicle weight rating (GVWR) of 14,000 pounds or more. Many vehicle owners were surprised to find that the CARB reminder only provided them with three options they will be required to select between before January 1, 2020:

    1. Replace or repower your vehicle(s);
    2. qualify for a flexibility option and report to the CARB’s Regulatory Reporting system (TRUCRS); or
    3. submit proof to the CARB that your vehicle is exempt.

Failure to perform any one of the three options before January 1, 2020 will be grounds for the Department of Motor Vehicles (DMV) to deny that vehicle’s registration, and in turn, make the vehicle illegal for use on the public roads of California.

Work trucks, cargo haulers, flat beds, hay squeezers, hay trucks, cement trucks, special purpose vehicles –  the list is too extensive to provide in total, but generally, this regulation affects all commercial vehicles with a diesel engine and a GVWR of 14,000 lbs or more, and an engine (power unit) made prior to 2004. For many small businesses, contractors, materials suppliers and landscapers, this letter is terrifying, as these vehicles represent a large investment and are the very workhorses that drive a business’s economic advantage. To replace many of them will take years to recover from, while to replace the power unit for each vehicle might even be more expensive.

To demystify some of the CARB’s regulatory position, and explain to an extent why this enforcement action feels like it is coming out of the blue, we have to look back over a decade. In 2008, the CARB adopted new emissions standards and schedules for phasing out older, and allegedly dirtier, diesel power units in a package of regulations called “Truck and Bus Regulation.” The Truck and Bus Regulation is codified under the California Code of Regulations §2025.

Under the Truck and Bus Regulation, all commercial diesel powered vehicles with a GVWR of 14,000 or more will have to be fitted with a 2010 or newer engines by January 1, 2023. Truckers and common carriers with heavier vehicles of GVWR 26,000 lbs or more, have their own phase in requirements which have been regularly implemented since 2012. Many times, these heavier vehicle owners and operators have been able to qualify for extensions by retrofitting qualifying engines with particulate matter (PM) filters. However, this retrofitting option has been less known and less available to light vehicle (14,000-26,000 GVWR) owners and operators, who have instead received the CARB letter ordering a replacement or repowering of the vehicle. Ultimately, all commercial diesel vehicles will have to meet the new emission requirements with a 2010 or newer engine by January 1, 2023, unless you qualify for an exemption.

The first major exemption to the Truck and Bus Regulation, is that it applies to commercial vehicles and only denies road registration. If you have received the CARB letter, and it references a vehicle that is used solely for recreation (RVs, toy haulers, horse haulers etc.), you will need to contact CARB and provide the required proof that the vehicle is not being used for a commercial purpose. For some, it may be the case that the vehicle in concern never leaves your property and never uses public roads. If this is the situation, having the registration denied is not the worst thing that can happen.

The second major exemption is the Low-Use Vehicle Exemption. The low-use vehicle exemption allows low-use vehicles to operate in California without meeting the PM filter or upgrade requirements of the Truck and Bus regulation in any compliance year. This option applies to vehicles that operate less than 1,000 miles per calendar year in California. Each January owners must designate which trucks in their fleet will use the low-use exemption for the year. The CARB requires owners report vehicle information, odometer readings, and hour meter readings every December 31, or January 1st of each year. Owners must also report end of year odometer readings. If the vehicle is sold, the owner must demonstrate the vehicle met the mileage limits. In regular California bureaucratic fashion, owners must also keep records of odometer readings, hour meter readings if applicable, vehicle purchases, and sales. This option would allow owners to continue operating their vehicles inexpensively, but for only a very limited duration.

The third and final major exemption is the NOx Exempt Area Extension. Vehicles that operate exclusively in areas defined as NOx Exempt Areas and have a PM filter installed do not need to be replaced. The NOx Exempt Areas are: Alpine, Colusa, Del Norte, Glenn, Humboldt, Lake, Lassen, Mendocino, Modoc, Monterey, Northern Sonoma, Plumas, San Benito, San Luis Obispo, Santa Barbara, Santa Cruz, Shasta, Sierra, Siskiyou, Tehama, Trinity, and Yuba Counties. However, each January, owners must report fleet information and identify which vehicles will operate in NOx Exempt Areas to take advantage of the exemption. While this option does allow vehicles to operate at a greater length of time, each vehicle is bound by the geographic limits of the NOx Exempt Area where it operates and must meet the labeling requirement when registered as a “NOx Exempt with a PM Filter” vehicle.

Finally, there is a misconception that there is a small fleet exemption. No such exemption exists. Prior to 2016, there was a “Small Fleet Exemption” which allowed for delayed compliance with the power/vehicle replacement schedule. This exemption required that an owner have 3 or less vehicles in their entire fleet, and that at least 1 vehicle have a PM filter installed and registered with the CARB prior to January 1, 2014. The other 2 vehicles would need to be upgraded and registered as upgraded with PM filters prior to January 1, 2018. Do not be fooled, this exemption still required replacement with a new engine or vehicle according the replacement schedule starting in 2020. However, in 2018 the CARB lost an appeal in the 5th district, for a lawsuit brought by the California Trucker Association (CTA) (John R. Lawson Rock & Oil, Inc. v. State Air Resources Board (2018) 20 Cal.App.5th 77) claiming the Small Fleet Exemption was an improperly created regulation in violation of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) and California’s Administrative Procedure Act (APA; Gov. Code, § 11340 et seq.), and gave an unfair advantage to small fleet owners. The 5th District Court ultimately held that the “Small Fleet Exemption” was an improper regulation. It and other 2014 amendments to the Trucks and Buses regulation where repealed. Therefore, the exemption is no longer available.

The list of exemptions provided in this article is not exhaustive. There are other exemptions for emergency, agricultural, and hay squeezer vehicles which may apply to a vehicle in your possession even if you have received a CARB reminder letter. If you need help navigating the confusing and lengthy Truck and Bus Regulation to determine which option may be best for your business or vehicle, it is advised that you consult an experienced attorney for more specific advice. Otherwise, know that many Californians will be afflicted with the same growing pains as the turnover of entire fleets of commercial diesel vehicles continues.

Article by Timothy M. Scully, Esq. in 2019. Mr. Scully is an Associate of Porter Law Group, Inc. in Sacramento, California, and primarily practices in Construction and employment Litigation.



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