BOARD MEETING DATE: April 3, 2009
Barry R. Wallerstein, D.Env.
The purpose of this item is to introduce the basic design of Proposed Rule (PR) 2301 to the AQMD Board and members of the interested public. Staff’s Preliminary Draft White Paper and report to the Board will provide an overview of the purpose, background, rationale and goals set forth in the proposed rule. PR2301 comprises draft regulatory requirements applicable to development and re-development projects in the SCAB and is intended to achieve the emissions reductions established in Emission Growth Measure (EGM)-01, as adopted in the 2007 Air Quality Management Plan (AQMP). PR2301 is committed to reduce growth-related emissions that will result from development projects between the years 2010 and 2023. The pollutant reduction targets established in the AQMP are 0.5 tons per day of VOC, 0.8 tons per day of NOx and 0.5 tons per day of PM2.5. To avoid double counting, these targets take into account emission reductions credited to other AQMP control measures. The targets are conservative yet critical to our region’s compliance with state and federal attainment requirements. Any emission reductions achieved beyond the AQMP and State Implementation Plan (SIP) commitment will contribute to “black box” reductions.
The basis of AQMD authority to implement this Indirect Source Rule (ISR) is twofold. First, air districts are authorized to adopt rules to reduce or mitigate emissions from indirect sources. Health & Safety Code §40716(a)(1). Second, California Clean Air Act requires that Districts achieve and maintain state standards by the earliest practicable date and for extreme non-attainment areas to include “all feasible measures” (see Health and Safety Code §§40913, 40914, and 40920.5). Thus, state law mandates that AQMD proceed with the development of this rule. The San Joaquin Unified Valley Air Pollution Control District previously adopted an ISR that was challenged and upheld in court, thus establishing precedent for these types of rules.
In summary, PR2301 would apply to any applicant that seeks to gain discretionary approval for a development project and is required to prepare a CEQA document whose operational emissions equal or exceed two (2.0) tons per year of NOx. The fundamental requirement of PR2301 is for applicants to reduce growth related emissions from development and re-development projects. Applicant reduction measure requirements are separated into two categories - construction reductions and operational reductions. Requirements for the construction phase of a project ensure emission reductions through measures that enforce statewide construction equipment requirements and also require on-site construction practices. Project proponents generating 2.0 tons per year or greater of operational NOx emissions must achieve emissions reductions equal to or greater than a specified percentage of the overall project operational emissions. The proposed rule also includes a local government delegation option that allows a local or regional jurisdiction to adopt and implement PR2301 by ordinance, or to adopt by ordinance a local plan or a program that will attain overall emission reductions greater or equivalent to those achieved by the proposed rule. The delegation option provides an opportunity for local governments to incorporate the rule requirements into their local general plans, air quality and/or climate change policies and programs. Local governments that choose the delegation option will be required to demonstrate adequate resources to adopt and enforce the ordinance. AQMD will perform audits to verify program implementation. In order to address potential resource impacts or other implementation issues, staff proposes to phase-in PR2301 requirements over a 3-year period.
The PR2301 Stakeholder Working Group, comprised of representatives from local governments, the building industry, developers, realtors, other business representatives, and environmental/community members, has provided ongoing input to staff’s rule design and development process. There are a number of key issues, raised by stakeholders, that staff is continuing to address in the development of this proposed rule. These issues include the proposed rules’ interaction with the CEQA process; local governments’ applicability threshold; authority over final project approval; inclusion of an off-site mitigation fee option; the compliance schedule (e.g., phase-in); standard uniform requirements for all projects regardless of size versus a project-by-project approach requiring local governments to make individual project decisions; and enforceability.
The business sector has expressed concern between the interaction of proposed rule requirements with the CEQA process and whether this will establish a new process separate from CEQA to ISR emission reductions. They are concerned that this action may create a potential conflict with local government’s land use authority. They have commented that the current CEQA process provides the AQMD and local agencies an avenue to review environmental impacts of projects during the construction and operation phases, and that local government’s are best situated to determine on a project by project basis whether a project has included all feasible measures. (Attachment A, Appendix D)
The environmental community has voiced their support for a proposal that requires mitigation fees similar to those required by other air district ISRs (Attachment A, Appendix A) if on-site mitigation targets are not met. They have commented that a mitigation fee would provide flexibility to the developer and will ensure that the project proponent is responsible for all feasible reductions. These stakeholders also support an extension of rule applicability to include development projects with one or more tons/year of NOx emissions. They believe that there are additional reduction opportunities that can be captured and are needed due to the severity of our air quality. Additionally, they have also expressed concern with the three-year phase-in compliance schedule. They have commented that this will allow for unnecessary public exposure to air pollution and could be confusing to project applicants and local governments. (Attachment A, Appendix E)
Subsequent to receiving feedback from the Board, staff is committed to continuing its Stakeholder Group meetings to further refine the proposed rule and will hold public workshops as rule development progresses. Staff intends to bring the proposed rule to the Board for consideration in the fall of 2009.
Attachments (EXE, 262k)