The California Air Resources Board (CARB) recently sent an email with regulatory advice and compliance assistance relating to the Transportation Refrigeration Unit (TRU) regulation.  For additional background on CARB’s TRU regulatory program please see our prior alerts here and here.  As of January 1, 2013, brokers, forwarders, shippers, and receivers that hire motor carriers to transport goods on California highways and railways may be subject to liability for the motor carrier’s failure to utilize compliant TRUs.  CARB’s January 14, 2014 email provides a sample template that brokers, forwarders, shippers, and receivers may use to notify motor carriers regarding the need to comply with the TRU regulation.  In addition, the email reminds brokers, forwarders, shippers, and receivers that they are potentially subject to civil penalties for failure to comply with the TRU regulations, as explained in CARB’s February 2013 TRU Advisory 13-25.

The TRU regulation, CARB’s guidance, and the recent template all highlight that each component member of the TRU transport process in the State of California is subject to potentially significant penalties for the failure of a motor carrier to employ appropriate TRU technology.  Brokers, forwarders, shippers, and receivers must be diligent when employing TRUs in California.

Background

TRUs are mobile units, typically powered by diesel internal combustion engines that are mounted on semi-trailers, shipping containers, and on rail cars to refrigerate perishable goods.  Although TRUs generally have only 25-50 horsepower engines, TRUs tend to congregate at distribution centers, rail yards, and other facilities.  TRUs emit diesel particulate matter.  CARB adopted an Airborne Toxics Control Measure for TRUs in 2004 as part of its Diesel Risk Reduction Program.  The TRU regulations are found in title 13 of the California Code of Regulations, section 2477.  October 2011 amendments to the 2004 regulations added requirements for “carriers,” “freight brokers and freight forwarders,” “California-based shippers,” “California-based receivers,” and “drivers” as those terms are specifically defined in the regulation.  The regulations create in-use performance standards for TRUs and set a compliance schedule based on the model year of the engine.  The compliance schedule is phased; for example, model year 2006 engines needed to be in compliance by December 31, 2013.  If a TRU is non-complaint, CARB may cite owners, operators, etc., and assess civil penalties of $1,000, $10,000, or more per unit for each day of violation.

Recent Updates

CARB’s TRU Advisory 13-25, issued February 2013, provides important guidance on planned enforcement of the broker, forwarder, shipper, and receiver requirements of the TRU rules.  The requirements went into effect in January 2013 and require any business that hires mobile carriers to transport perishable goods on California highways and railways to only hire or contract with carriers that comply with CARB’s TRU in-use performance standards.  Thus, shippers, receivers and all related business entities are essentially responsible for self-enforcement of the TRU regulation, and are subject to the same penalty scheme as the motor carriers of the TRU.  The requirements apply to any California or non-California entity that is a part of the operation of a TRU on California railways and highways.  Although brokers, forwarders, shippers, and receivers are not required to inspect TRUs to determine compliance at docks and other transfer points, they “must take steps to comply with the applicable requirements.”  The steps to comply are not explicit but include hiring only trucks and trailers equipped with compliant TRUs, requiring carriers they hire or contract with to only dispatch compliant TRUs and providing information to carriers so that dispatched drivers can present the information, as needed, to law enforcement personnel

CARB’s Equipment Registration (ARBER) system provides compliance support.  If a truck or carrier provides up to date information to ARBER, it will appear on a compliant list that aids brokers, forwarders, shippers, and receivers in the overall TRU process.  CARB’s recent email guidance and sample template assists business entities in ensuring the compliance of all refrigerated carriers they contract with or hire that will move TRUs in California.  The sample template provides one method of “steps to comply” with the TRU regulation that diligent brokers, forwarders, shippers, and receivers should use.

Conclusion

CARB’s TRU regulation imposes great responsibility on all actors involved in the movement of TRUs.  The requirements relating to brokers, forwarders, shippers, and receivers went into effect on January 1, 2013.  CARB’s recent guidance provides a sampling of steps these entities may take to comply.  Because all entities are subject to significant civil penalties, it is important that brokers, forwarders, shippers, and receivers take notice of these regulations.

For further information on CARB regulations, please contact Michael E. Vergara or Richard S. Deitchman at (916) 446-7979 or by email at mvergara@somachlaw.com orrdeitchman@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.