Comment Log Display

BEFORE THE 
	California Environmental Protection Agency - Air Resources Board
Notice of Public Hearing to Consider Proposed Amendments to the
Airborne Toxic Control Measure for In-Use Diesel-Fueled Transport
Refrigeration Units (TRU) and TRU Generator Sets, and Facilities
Where TRUs Operate 

COMMENTS
SUBMITTED BY

 ALLEN LUND COMPANY, INC.
KENNY LUND – VP SUPPORT OPERATIONS

The proposed amendments to the TRU-Act to extend beyond trucking
companies, the parties who will be fined when a refrigerated
trailer is not in compliance on its Transportation Refrigeration
Unit(TRU) is unfair, unworkable, will most certainly result in
increased transportation costs, and will lead to more businesses
leaving California.  

Currently, the carrier can be fined $1,000 if it is not in
compliance.  Under the new proposal, anyone involved in the
transaction including the carrier, the driver, the shipper, the
receiver, the transportation broker, and the warehouse can be fined
$1,000 each, or be sentenced up to six months in jail.  These
penalties cannot be extended to any parties other than the trucking
company or carrier.  

Clearly, a non-asset based transportation broker is not a carrier,
it has no trucks, and is not an employer of drivers.  A broker
cannot exercise control over the carrier or its trucks or
operations.  A broker’s role is not to select certain trucks or
drivers when tendering loads to a carrier.  Allen Lund Company
(“ALC”) is most concerned that the present proposal includes
provisions to fine ALC, and all transportation brokers, if their
independently-contracted carrier is not in compliance.  This is the
equivalent of fining a travel agent if an airline is out of
compliance on an aircraft.  ALC works with 22,000 carriers in a
given year and it is impossible to monitor the 100,000+ trailers
owned and operated by these companies.

It will be an impossible burden, in practice, for brokers to assure
carrier compliance.  ALC is not a law enforcement agency, it does
not have access to the documents the state retains, and it must
rely upon the carrier’s business practices to ensure compliance. 
It is physically impossible for brokers or shippers to travel to
each trucking company or owner/operator to inspect the entity’s
records and examine each trailer.  If ALC books a load on a truck
with assurances from the carrier that the truck is compliant (and
even if ALC were to procure the VIN), the carrier can still switch
the truck to be used on the ALC-booked load.  In such a case, how
can an innocent party such as ALC be fined or warned?  What if the
carrier provides ALC with the VIN belonging to a different, but
compliant, truck?  What if carrier paperwork is forged by the
carrier?  If a carrier’s truck is retrofitted, what proof will ALC
need to produce to avoid a fine?  Given these significant issues,
what mechanisms are in place for carriers to prove compliance
sufficient to insulate ALC, and other California-based brokers,
from fines and possible jail time? 

At the time the trucker is fined, ALC will not be with the trucker.
 How does ALC prove its lack of wrongdoing when a delay in
receiving its own fine may compromise its ability to determine the
true facts from the carrier?  ALC is not an enforcement branch of
the state government, and cannot be asked to act as a policing
agency for the thousands of carriers which operate in California.

Produce loads, moved in refrigerated trailers, are very different
from other loads.  With produce the freight is moved when the
produce is ready, and this cannot be timed with certainty.  As
such, when ALC is advised of a load, it must move quickly to ensure
that the produce is delivered in a timely manner.  Adding a new
requirement for verifying carrier compliance, especially where
there is no fool-proof, and fine-proof, method for doing so, will
not allow brokers to move the same number of loads, nor will loads
move for a reasonable and acceptable cost.  Of course, this will
negatively affect the transportation of such loads, increasing the
consumer’s final cost of the produce. 

The CARB staff on TRU compliance has indicated that a first offense
will result in a letter of non-compliance being sent to the
shipper, transportation broker, and receiver.  There is no process
to appeal such a letter, no way to verify the allegations, nor any
due process afforded to the warned party.  Such a warning letter
from a state agency, indicating the broker’s use of a non-compliant
truck, will tarnish the broker’s standing with its customers,
jeopardize future business dealings, and cause continuing economic
damage to California companies.  ALC, and any California-based
broker, will be thrust into a no-win situation caused by
unnecessary over-regulation which is impossible to comply with. 
This proposed extension of liability for compliance to parties
other than solely the carrier, which parties cannot physically
ensure compliance, is unfair, unworkable, and an economic blow to
already struggling California businesses.  The revision cannot and
must not be implemented.  

It must be noted that the TRU Act itself is in question based upon
CARB’s own letter to the lead author of the 2008 study that
overstated issues with diesel exhaust.  The NOTICE OF ADVERSE
ACTION to Hien T. Tran dated April 9, 2009 from Linda Smith, Chief
of the Health and Exposure Assessment Branch, , in the ‘Statement
of Facts’ section states, “Your dishonesty regarding your education
has called into question the validity of the report ‘Methodology
for Estimating Premature Deaths Associated with Long-term Exposure
to Fine Particulate Matter in California’ in which you were the
project coordinator and lead author.  This report in turn supports
other controversial and critical regulation adopted by Air
Resources Board (ARB).  Your actions could create long lasting and
damaging reflection on ARB and the California Environmental
Protection Agency.”  The report, authored by Mr. Tran, has been
problematic and has been called into question several times by
other properly credentialed scientists.  To use and rely upon such
a problematic report to extend the enforcement of this act to those
who do not own the trucks is unwise and unjust.  Additional
scientific study must be conducted before expanding the TRU Act to
parties other than truckers and trucking companies.  

At a time of tremendous over-regulation, this proposed amendment
adds yet another reason for shippers and brokers to cease
operations in this great state.  ALC employs more than 100 people
in high paying jobs in California. These are service jobs that can
be moved to other states.  ALC currently chooses to remain in
California, however there continues to be pressure to move part or
all of this company to a state that works with business, rather
than California which oftentimes makes working in this state a
burden.  

We respectfully request that the TRU Act not be expanded, as
proposed, as such a course of action will unfairly punish companies
such as Allen Lund Company, Inc.