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PERP: regulatory purgatory?

San Diego Air Pollution Control District says: We were wrong before, but now we are right

The San Diego County Air Pollution Control District has recently determined that "…some equipment that has historically been operated as portable equipment may, in fact, not qualify to be portable."

Many other air districts in the state have recently come to "similar" conclusions (enter the California Air Pollution Control Officers Association, more later). The SDAPCD recently published a guidance document for allowable uses of portable equipment in San Diego County to help clarify this issue. Bottom line: The new local APCD staff believes that the old SDAPCD staff has been misinterpreting the Portable Equipment Registration Program (PERP) for more than 14 years even, though the state's Air Resources Board (the same people who wrote the PERP regulation) hasn't expressed any concern about there being any misinterpretation.

PERP is a statewide program established by the California Air Resources Board in 1995 to allow the owners or operators of portable diesel engines the ability to operate their equipment throughout the state of California without having to obtain individual permits for operating within the state's 35 local air districts. The program was put in place due to the difficulty, confusion and expense required to operate portable equipment in different air districts, each with its own set of regulations/guidelines and each with its own fee structure.

AB531 says:

"41750(c): A uniform, voluntary system of statewide registration and regulation of portable equipment, consistent with current state and federal air quality law, is necessary to ensure consistent and reasonable regulation of that equipment without undue burden on their owners, operators, and manufacturers."

As an example, prior to PERP, the owner of a portable crushing plant operating in San Diego, Ventura and Riverside counties was required to obtain and maintain three separate (and very expensive) permits, one for each air district. After PERP, the owner has a single permit with the state that allows the equipment to work in all air districts in the state. The PERP program has worked well over time and continues to be modified to reflect changes as the political, environmental and technological landscapes have evolved in the state.

The result of this "new" interpretation of the PERP guidelines as they apply to the local air district is that a huge component of industry that was previously permitted under the state of California PERP will no longer be under state authority, but rather local permitting authority. The net effect will be to put the industry back to where it was prior to PERP except for a few very limited conditions.

As a result, operators will have to go through onerous, differing and confusing local permitting processes to get stationary permits for their sites. In addition, expensive heavy equipment with many years remaining of useful life, currently allowed under PERP, may not meet local air district stationary requirements -- thus creating what amounts to a requirement for premature replacement of this equipment. Even now, the individual air districts have major distinctions from one to another as to what they will allow for portable uses in their district.

Here's the fun part -- the sausage making of this regulation as it applies to a San Diego business:

* PLAYER 1: The state Legislature establishes the need for the regulation and provides guidelines through AB531 in 1995, implementing in 1997.

* PLAYER 2: CARB constructs and regulates PERP. This is a very complex regulation with clear definition as to how it works. There is a loophole, however, CARB defers to the individual air districts for "interpretation" of this regulation.

* PLAYER 3: The San Diego Air Pollution Control District Board (San Diego County Board of Supervisors), through its staff, implements and interprets PERP from its inception until this year.

* PLAYER 4: The new SDAPCD staff, absent any legislative, CARB or SDAPCD board action, self-determines, after 14 years, that "they" (the old APCD staff) have been misinterpreting the regulation and drastically change the implementation of the regulation with absolutely no change to any regulatory language. The only change has been to redefine the language of the regulation.

* PLAYER 5: CAPCOA. The coincidental reinterpretation of PERP across the state's air districts may be the result of a coordinated effort by air districts' staffs (the bureaucrats) across the state to radically change how PERP is applied, putting the regulation of these engines back under local authority and as a local revenue generator.

In this time of government overregulation at all levels of industry and business, this severe ratcheting up of regulations on our construction, aggregate producing, recycling and related industries has been done without a single change to the wording of the existing regulations or action by any elected or appointed official, but rather by a realization by regulatory staff that they have been "wrong" in their interpretation of these regulations for all these years and now is the time to set things straight. Under the previous PERP program, there is no history of abuse, there is no documented history of any detrimental impact on the health and well-being of the citizens of the county.

Why are they fixing a problem that doesn't exist? Our industry is struggling to survive. This is another example of those in government being completely removed from the reality of the current economic environment in our state. Who is the final decision-maker regarding authority over portable diesel engines in San Diego County? Rule-making by bureaucrat. Only in California. Only by "our" government!

Shaw is immediate past president and current board member of the Engineering & General Contractors Association.

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