Cal. Code Regs. Tit. 17, § 93130.16 - Remediation Fund Administration

This section sets forth the criteria for CARB approval of an entity to administer a remediation fund for individual ports and independent marine terminals, and the requirements for approved administrators to manage those funds. The intent of the remediation fund is to mitigate the community impact of the excess emissions from vessel visits that did not reduce emissions at berth to the required levels, as set forth under section 93130.15. To be eligible for use under this Control Measure, the monies from the remediation fund must (1) fund incentive activities that comply with adopted CARB guidelines on existing incentive programs; and (2) achieve emission reductions that are early or in excess of any other state, federal or international rule, regulation, statute, or any other legal requirement (including any requirement under a Memorandum of Understanding with a government entity) or an emission reduction strategy identified in an AB 617 Community Emissions Reduction Program that has been approved by CARB's Board. As used in this section, the term "guidelines" refers to CARB funding program guidance documents, including CARB funding program related documents titled either as "guidelines" or as "blueprints,", as described in subsection (h)(3) below.

(a) CARB staff shall notify the following entities in writing regarding the opportunity to apply to administer the remediation funds: the California Air Pollution Control Officers Association (CAPCOA), and the local air quality management districts and air pollution control districts with jurisdiction in the communities adjacent to ports and independent marine terminals that are subject to this Control Measure.

(b) Each district may elect to submit a written application, within 120 calendar days of notification, to the Executive Officer to administer remediation funds for that district's geographic area.

(c) Applications shall include the following information:

(1) Description of the applicant's experience implementing incentive programs for heavy-duty diesel vehicles and off-road equipment, with a focus on the Carl Moyer Memorial Air Quality Standards Attainment Program, also known as the Carl Moyer Program; the incentive program developed under the Highway Safety, Traffic Reduction, Air Quality and Port Security Bond Act of 2006, also known as the Proposition 1B Program; the incentive program developed under Assembly Bill (AB) 617 (Garcia, Stats. 2017, ch. 136), also known as the Community Air Protection Incentives; or similar programs for mobile and/or stationary sources of air pollution.

(2) Description of the applicant's technical knowledge of engines, vehicles, equipment, and/or stationary air pollution sources that would be eligible for incentives.

(3) Description of the remediation activity types and applicable CARB incentive program guidelines the fund administrator will use to recruit, evaluate, select, fund, and track incentive activities.

(4) Demonstration of the applicant's capacity to administer the fund, including: personnel resources; operating budgets; accounting and legal support; activity tracking, emission reduction quantification, reporting mechanisms, and outreach experience.

(5) The ability to establish a separate account, and track deposits and payments, solely for the remediation fund.

(6) The proposed timeline for recruiting and funding incentive activities, and for those activities becoming operational to reduce emissions, once remediation funds are deposited into the applicant's separate account. For efficiency, these milestones may be aligned with existing solicitations, obligation, and liquidation deadlines for other incentive programs.

(7) Description of any other incentive or funding programs with which any remediation funds may be combined. In funding remediation activities, remediation funds may only be combined with funds from other incentive programs to the extent that the emissions reductions caused by the remediation fund are capable of being calculated and attributed to the remediation fund. If funds would be combined in this manner, the application shall demonstrate that the emissions reductions resulting from the remediation fund can properly be attributed to, and claimed by, the remediation fund.

(d) CARB shall review submitted applications to determine whether the applicant is eligible and all required information is included in the application. CARB may request additional information from the applicant if necessary to determine the applicant's eligibility, or to determine that the criteria set forth below are met. CARB shall verify that:

(1) The applicant is eligible to administer a remediation fund based on the criteria in subsection (c) above;

(2) The application is complete, and the responses demonstrate the applicant's capacity to successfully administer the remediation fund to the satisfaction of CARB; and

(3) The application includes a resolution from the applicant's governing board authorizing the applicant to participate in the remediation fund program; and

(4) The emissions reductions resulting from the remediation fund can properly be attributed to, and claimed by, the remediation fund.

(e) If CARB determines that the conditions in subsection (d) above have been met, CARB will notify the applicant and execute a Memorandum of Understanding with the applicant to enable the applicant to serve as the remediation fund administrator for ports and independent marine terminals in that air district's geographic area.

(f) If the air district with jurisdiction in the region that includes a covered port or independent marine terminal does not execute a Memorandum of Understanding with CARB to administer the remediation fund, CARB may invite non-profit organizations in the region, other air districts, or CAPCOA, with the demonstrated capacity and substantial experience administering incentive programs to apply. Any invited organization that wishes to participate must demonstrate no conflict of interest with the intended purpose of the remediation fund. CARB may approve an organization as the remediation fund administrator following the procedures and requirements of this section.

(g) CARB will post an executed Memorandum of Understanding, and each successful applicant's application, on its public website.

(h) Each Memorandum of Understanding shall include the following minimum elements:

(1) Parties, contact information, effective date, and term.

(2) Environmental justice: The fund administrator agrees to conduct its programs in a manner that ensures the fair treatment of all people in the State.

(3) Emission reductions: The fund administrator agrees to use remediation funds for incentive activities that directly benefit communities impacted by excess emissions from the port or independent marine terminal, and achieve emission reductions consistent with CARB's most recent applicable incentive program guidelines for: Carl Moyer Program, Proposition 1B Program, or Community Air Protection Incentives Program; or similar programs for mobile and/or stationary sources of air pollution. Fund administrators shall seek to prioritize eligible activities in communities that are also identified by CARB under the AB 617 Community Air Protection Program or disadvantaged communities as defined by the Secretary for Environmental Protection. While at berth remediation funds can be administered as part of an existing incentive program, the remediation funds cannot be used in place of any required match funding. Remediation funds may only be combined with funds from other incentive programs to the extent that the emissions reductions caused by the remediation fund are capable of being calculated and attributed to the remediation fund.

(4) Incentive activity types and applicable guidelines: The fund administrator agrees to recruit, evaluate, select, fund, and track incentive activities in conformance with the requirements of the applicable guidelines for the incentive program or programs identified in the application.

(5) Schedule: The fund administrator will identify anticipated major milestones for implementing emission reduction projects once remediation monies have been received by the administrator, including a timeframe by when remediation monies will be expended.

(6) Reporting requirements: The fund administrator is responsible for submitting to CARB semi-annual reports covering fiscal activity and remediation activities funded, including, but not limited to, recipient, type, location, and estimated emission reductions achieved.

(7) Recordkeeping requirements: The fund administrator agrees to retain fund records, e.g., solicitations, applications, invoices, contracts, and correspondence, for five years after a funded incentive activity has concluded.

(8) Oversight: The fund administrator agrees to allow ongoing evaluations, reviews, and fiscal audits by CARB, other State agencies, or their designees.

(9) Records access: The fund administrator agrees to allow CARB or its designees access to evaluate or audit fund records.

(10) Enforcement: The fund administrator authorizes CARB or its designee to inspect incentive activities to ensure compliance with CARB requirements.

(11) Administration expenses: The fund administrator may retain up to 10 percent of the remediation funds collected for its direct and reasonable expenses incurred to implement the incentive program.

(12) Earned interest: The fund administrator agrees to maintain records and report on interest earned on remediation funds, and to expend earned interest according to the provisions of the Memorandum of Understanding.

(13) Non-performance provisions: The fund administrator agrees that the following is a non-exhaustive list of the circumstances that constitute non-performance under the Memorandum of Understanding. These circumstances include, but are not limited to:

(A) Failure to comply with the provisions of this Control Measure for remediation fund administrators or the CARB approved guidelines of the applicable incentive programs.

(B) Failure to obligate or expend remediation funds within established timelines, or to show timely interim progress to meet these timelines.

(C) Insufficient performance or widespread deficiencies with remediation fund oversight, enforcement, recordkeeping, contracting provisions, inspections, or any other fund element as determined by CARB.

(D) Misuse of remediation funds.

(E) Funding of ineligible incentive activities or other items.

(F) Exceeding administration fund allotment.

(G) Insufficient, incomplete, or faulty incentive activity documentation.

(H) Failure to provide required documentation or reports requested from CARB, or other State agencies, in a timely manner.

(I) Poor performance as determined by a review or fiscal audit.

(14) Remedies: The fund administrator agrees to provisions to remedy non-performance, including:

(A) A corrective action plan.

(B) Transfer of collected remediation monies to an alternative fund administrator identified by CARB.

(C) Constraints on opportunity to administer future remediation funds.

(D) Termination of the Memorandum of Understanding.

(15) Indemnification: The fund administrator agrees to indemnify and hold harmless the State for any liability arising out of the performance by the fund administrator.

(16) Entitlements and regulatory compliance: The fund administrator agrees to comply with all laws, ordinances, regulations, and standards in administering remediation activities, including by obtaining any permits or approvals necessary to undertake the activities funded by the remediation fund, and complying with all environmental review requirements associated with such activities.

(17) Severability: The remaining provisions of an agreement continue in effect even if a court holds a specific provision invalid.

(18) Force majeure: CARB and fund administrator are not liable for any delay or failure in performance resulting from war, natural disasters, and other acts beyond their control.

(19) Amendments: The amendments shall only occur by mutual agreement in writing and signed by all parties.

Notes

Cal. Code Regs. Tit. 17, § 93130.16

Note: Authority cited: Sections 38560, 38562, 39600, 39601, 39658, 39659, 39666, 43013 and 41511, Health and Safety Code. Reference: Sections 38510, 38530, 38562, 38566, 38580, 39600, 39650, 39658, 39659, 39666, 41510 and 41511, Health and Safety Code.

1. New section filed 12-30-2020; operative 1/1/2021 (Register 2021, No. 1). (Transmission and filing deadlines specified in Government Code sections 11346.4(b) and 11349.3(a), respectively, extended 60 calendar pursuant to Executive Order N-40-20.)