NACAA Comments on DOJ Proposed Consent Decree with VW

August 2, 2016 – NACAA has submitted comments on the U.S. Department of Justice’s “Notice of Lodging of Partial Consent Decree Under the Clean Air Act” that was published in the Federal Register on July 6, 2016.  This notice related to the proposed settlements with Volkswagen (VW) announced on June 28, 2016 to address the company's alleged illegal use of emission control "defeat devices" on nearly 500,000 2.0-liter diesel vehicles of Model Years 2009 through 2015.  Under the proposed settlements, VW agrees to pay, among other things, $2.7 billion for a Mitigation Trust Fund to be allocated among every state in the nation (including the District of Columbia and Puerto Rico) as well as tribes to undertake pollution reduction projects. NACAA’s comments are based in large part on the association’s Recommendations for the Distribution of Funds for Environmental Mitigation and Supplemental Environmental Projects Related to Alleged Volkswagen Violations, which the members adopted on May 17, 2016.  In the comments, NACAA compliments DOJ for establishing a program that requires VW to mitigate the environmental harm the company allegedly caused and for incorporating into the Consent Decree (CD) many of the elements that NACAA called for in its recommendations, including providing significant resources for state and local agencies to address the excess NOx emissions.  NACAA recommends that prior to entering a final CD, DOJ convene a discussion with state and local air pollution control agencies concerning practical administrative and process issues related to the implementation of the Mitigation Trust fund program.  NACAA also offers refinements to the proposal in order to strengthen and clarify it including incorporating a mechanism for local air pollution control agencies to receive funds directly under the program; expanding the list of eligible mitigation actions to include, among other things, a mechanism for additional projects and programs to be approved; providing additional time for beneficiaries to submit their initial plans; clarifying the recording and reporting requirements for beneficiaries; and providing additional guidance to clarify eligible administrative expenses.  The partial consent decree is subject to the approval of Judge Charles Breyer of the U.S. District Court for the Northern District of California.