BOARD MEETING DATE: July 9, 2010
AGENDA NO. 24

REPORT:

Enter Into Mitigation Agreement with Department of Toxic Substances Control Regarding Use of Emission Credits for CEQA Mitigation

SYNOPSIS:

The Department of Toxic Substances Control has approached the AQMD seeking guidance on using emission credits to mitigate significant NOx emissions during construction activities to clean up hazardous wastes at the Ascon landfill in Huntington Beach. In response to similar requests in the past, AQMD has established a procedure to follow when using emission credits as CEQA mitigation. The procedure includes ensuring that any emission credits used as CEQA mitigation are derived using existing AQMD protocols, are provided in sufficient quantities to ensure that emission impacts are mitigated to less than significant, and ensure that all credits used as CEQA mitigation are retired for the benefit of the environment. Penalties for non-compliance are also identified in the procedure. As a responsible agency, the AQMD would enter into a Mitigation Agreement with the lead agency and project proponent, signed by the Executive Officer.

COMMITTEE:

Not Applicable

RECOMMENDED ACTIONS:

Receive and file.  
 

Barry R. Wallerstein, D.Env.
Executive Officer

Background

In the past CEQA lead agencies have approached the AQMD for information and guidance with regard to using emission credits as CEQA mitigation, primarily for construction air quality impacts. Although it is preferable that CEQA lead agencies identify onsite or local emission reduction mitigation measures using available low emission technologies, there is nothing to preclude them from using emission credits as CEQA mitigation. In response to these past requests, AQMD staff has developed a recommended procedure for using emission credits as CEQA mitigation. The following provides an overview of the procedure. Staff ensures that the project proponent and lead agency adhere as closely as feasible to the below-describes procedures.

• The lead agency must demonstrate that it has made a good faith effort to identify clean, low emission technologies to mitigate significant construction air quality impacts. It is preferable that emission reduction mitigation measure occur onsite or in the immediate vicinity of the proposed project.

• Prior to approval of a mitigation measure that allows the use of emission credits, the lead agency must demonstrate that there are no significant localized air quality impacts. To demonstrate that the project will not generate significant localized air quality impacts, the lead agency must perform dispersion modeling according to the most current AQMD protocols. If the project is five acres or smaller, the lead agency may use the AQMD’s localized significance threshold methodology and tables.

• Prior to commencement of the construction project in accordance with established AQMD protocols for generating emission credits, the project applicant shall provide emission credits in amounts sufficient to reduce significant impacts for each pollutant that exceeds applicable significance thresholds for each phase of the project. The offset credits must meet the following criteria:

• The project applicant must demonstrate that the emission credits were derived from emission reduction project(s) through SCAQMD-approved protocols.

• The credit must be concurrent for the duration of the project, meaning the emission credits have not expired before or during the time period when the emissions from the project would occur.

• The project proponent shall retire the entire amount of emission credits needed to mitigate the exceedance of the applicable significance threshold for each significant pollutant prior to commencement of the construction project.

• If any emissions exceed the original estimation of emission credits needed, the project applicant or consultant shall reconcile the emissions that exceed the original estimation of emission credits purchased. The project proponent will be given a 15-day reconciliation period without penalties to purchase additional emission credits, if needed, to continue the project; failure to do so will result in a penalty of purchasing additional credits in an amount equal to the additional excess emissions plus 100 percent of the additional excess emissions.

• The project proponent’s construction contractor shall record the hour meter reading for each piece of equipment and the project applicant shall record all the equipment used and hours of operations. The project applicant or consultant shall prepare and submit a monthly report to the lead agency within seven days after the end of each construction month to demonstrate that conditions have been met.

Because the AQMD is not the Lead Agency for land development projects where emission credits may be used as CEQA mitigation, it is not responsible for approving the environmental document and/or Mitigation Monitoring Plan (MMP) in which the mitigation measure is required. However, the SCAQMD typically would have approval authority over a mitigation measure using emission credits to reduce regional air quality impacts, as well as enforcement and monitoring responsibility under the MMP. In accordance with Public Resources Code §21081.6, the MMP should outline the party responsible for implementing mitigation and the enforcement agency. Pursuant to CEQA Guidelines §15126.4(a)(2), to ensure that the mitigation measure is fully enforceable through a legally binding instrument, a Mitigation Agreement or other legally binding contractual instrument should be prepared. The Mitigation Agreement must be signed by the project proponent, the AQMD and the Lead Agency.

The Department of Toxic Substances Control (DTSC) is the lead agency overseeing the cleanup and remediation of extensive amounts of hazardous substances at the former Ascon landfill in Huntington Beach. DTSC has entered into a consent decree and issued orders against a number of responsible parties to clean up the 38-acre hazardous waste site, which includes a variety of hazardous wastes, including “tarry” materials in five lagoons. Cleanup of the Ascon site will occur in phases. The first phase of the site cleanup is the Interim Removal Measure, which would consist of removing and disposing or recycling the tarry materials. DTSC has prepared a Mitigated Negative Declaration for the Interim Removal Measure plan, which includes mitigation measure AQ-3, consisting of using emission credits to mitigate significant construction NOx emissions. Without mitigation measure, AQ-3, construction NOx impacts would be significant and the Interim Removal Measure plan would be required to undergo an environmental impact report process, causing delays in remediating the site. The Interim Removal Measure Mitigated Negative Declaration was certified by DTSC on May 10, 2010.

In accordance with the above procedure, the Department of Toxic Substances Control has submitted a Mitigation Agreement to the AQMD with regard to using emission credits as CEQA mitigation. Staff has reviewed the materials provided by DTSC and concluded that they have substantially followed the process established by AQMD staff. The Mitigation Agreement consists of a legally binding agreement to be signed by DTSC, AQMD’s Executive Officer, and the authorized representative of the Ascon Responsible Parties.

Attachment (DOC, 37k)
Mitigation Agreement