It has long been the case that the California Air Resources Board (“ARB”) and each of California’s local Air Quality Management Districts (“AQMDs”) may regulate sources of portable emissions. However, about two decades ago, the legislature recognized that it was often impractical and too costly for businesses traveling throughout the state to acquire permits for their portable equipment as they moved through each district. As a result, the legislature adopted a series of statutes empowering the ARB to implement a uniform, statewide Portable Equipment Registration Program (“PERP”). Health & Safety Code § 41750, et seq. When a business voluntarily registers its equipment to receive a PERP permit, the local AQMDs may not require additional permits:
It is the intent of the Legislature that the registration of, and the regulation of emissions from, portable equipment that is operated in more than one district and that is subject to the registration program be done on a uniform, statewide basis by the state board and that the permitting, registration, and regulation of portable equipment by the districts be preempted.
Health & Safety Code § 41753(a)(1).
Most AQMDs have followed this clear mandate. However, in recent years, some AQMDs have taken a very narrow view of what the PERP permits exempt. The unresolved issue is whether the PERP permits cover just the “engine,” or whether ancillary parts to the portable equipment may be separate sources of emissions that require separate permits. For instance, in the ARB’s PERP program FAQs regarding the permitting requirements for wood chippers, the ARB answered the question as follows:
The local air districts make the determination of what needs a permit and what doesn’t. Some districts may only require a permit for the engine. Some districts may require the chipper side of the machine to be permitted as well.
PERP FAQs, (Apr. 16, 2015).
This interpretation of the scope of the PERP exemptions has created problems for contractors bidding for public works contracts. For example, in Ventura County, a pavement preservation chip seal contractor with valid PERP permits had its low bid rejected as non-responsive when the contractor did not have local permits on its spreader truck spray bars and expansion tanks on its blending equipment. Several other local air districts, primarily in the southern part of the state, are requiring similar permits.
There is growing uncertainty with regard to whether contractors have all of the necessary permits as they look to bid work in these districts. The AQMDs are running afoul of the legislature’s mandate to have a “uniform, statewide” system of permitting. This unchecked stretch in the powers by the AQMDs is ripe for challenge in the courts.