AB 617 COMMUNITY AIR PROTECTION
PROGRAM
By Lee N. Smith
This memorandum addresses AB 617 Garcia (the Community
Air Protection Program), Chapter 136, Statutes of 2017. There is also a short discussion of the
recently released (2/7/2018) California Air Resources Board (“CARB”) “Concept
Paper” and the accompanying “Draft Process and Criteria for 2018 Community
Selections.”
I.
Summary
AB 617 was approved by the California legislature in
conjunction with AB 398, which was an extension of the Cap & Trade program,
in an effort to garner support from the diverse interested parties in the air
quality arena. It is a far-reaching bill
that is intended to identify populations/communities in California that are
being cumulatively impacted by local air quality, and requires that additional
monitoring or mitigation be taken. In
particular, it calls for the development of a plan for monitoring communities
that are cumulatively impacted. The
Concept Paper and the Draft Process and Criteria for Community Selection, which
are discussed at the end of this memorandum, contain proposed policies that
will directly impact local air districts.
One of the major concerns with AB 617 is the apparent
interest by some groups to use inexpensive monitoring devices that cannot
produce results that are likely to be sufficient to meet the technical and
evidentiary requirements under the state and federal clean air acts.
II.
Cap & Trade
AB 398
AB 398 authorizes
CARB to continue the GHG Cap & Trade program until 2030 and resolves
certain questions over the future of cap-and-trade while working to meet the
state’s target to cut GHG emissions to 40 percent below 1990 levels by
2030. Support by industry for the
additional cap-and-trade regulation was an apparent desire to avoid command and
control of greenhouse gas emissions as opposed to the economic incentives and
compliance alternatives under the existing Cap & Trade program.
III.
AB 617
A.
Summary
AB 617 requires CARB to develop a monitoring plan for
the state, and then select, based on the plan, the highest priority locations
to deploy community air monitoring systems.
Once the communities and relevant emissions are identified, various
options for control measures are to be proposed.
By July 1, 2019, air districts would be required to
deploy monitoring systems in the selected locations, with data to be published
on the CARB website.
Air districts would also be authorized to require any
stationary sources that emit air pollution that materially affect the selected
location, to deploy a fence-line monitoring system.
Additional locations would be selected to deploy
community air monitoring systems on an ongoing basis, by January 1, 2020, and
every year thereafter, as appropriate based on the monitoring plan.
The program also includes annual hearings to support
continual improvements in implementing the network of community air monitoring
systems.
Within one year, air districts that encompass
identified communities would need to adopt a community emissions reduction
program consistent with the state strategy and including emissions reduction
targets, specific cost-effective reduction measures, an implementation schedule
and enforcement plan. These programs
could include measures for reducing emissions from the contributing sources or
categories of sources, including, but not limited to, stationary and mobile sources.
Ensuring continuous progress towards fulfilling the
statewide strategy, every year CARB is required to select additional locations
with high cumulative exposures for participation in the program. The legislation further requires CARB to
update the state-wide strategy at least once every five years.
B.
Community
Participation
CARB is required to consult with environmental justice
organizations, affected industry and other stakeholders in preparing the
state-wide strategy, including holding at least three public workshops in
different parts of the state.[1]
Air districts must similarly consult with CARB,
individuals, community-based organizations, affected sources, and local
government in developing the community emissions reduction program. It is our understanding that initial
community identification will occur in April of 2018.
C. BARCT
AB 617 also requires air districts that are in
nonattainment to adopt an expedited schedule to implement Best Available
Retrofit Control Technology (“BARCT”) for existing sources of air
pollution that were covered by Cap & Trade - a market based control program
- as of January 1, 2017, and where such standards have not been updated within
the last decade. The law offers
compliance flexibility in how the standards are met.
AB 617 was intended to enhance consistency of
regulatory standards by requiring the state board to establish and maintain a
statewide clearinghouse for the technologies used across the state to
define the best available control technology (for new sources that emit
criteria air pollutants), BARCT, and for related technologies for the control
of toxic air contaminants.
D. Increased Enforcement
AB 617 also increases the maximum criminal and civil
penalties enforceable by the districts and CARB and requires affected air
districts to prepare annual reports describing actions taken and the results of
those actions.
IV.
Concept Paper
On February 7, 2018, CARB’s Office of Community Air
Protection released a draft Concept Paper[2]
which is the initial proposal for the framework of the Program that was
discussed at three full-day public workshops held throughout California in late
February. Comments received on the
Concept Paper will be used in the development of a draft version to be released
in May 2018. The following is a synopsis
of the 45-page report that addresses the more relevant sections.
A.
CARB
Identifies Responsibilities Under the Air Protection Program to Include:
• Identifying communities with the highest
cumulative exposure burdens and annually selecting priority communities for
deployment of community air monitoring campaigns and/or community emissions
reduction programs.
• Developing a
statewide strategy, including measures to reduce emissions and exposure,
methods for identifying contributing sources, and criteria to serve as the
benchmark that air districts must meet when developing and implementing
community emissions reduction programs.
• Preparing a
statewide air monitoring plan to provide criteria and guidance for
developing community air monitoring campaigns.
• Establishing and
maintaining an emissions control technology clearinghouse.
• Establishing a
statewide uniform system of annual emissions reporting for certain categories
of sources.
• Assessment and
identification of the most heavily burdened communities will be based on a
compilation of data sources and factors characterizing cumulative exposure to
criteria air pollutants and toxic air contaminants within disadvantaged
communities. These sources include:
• Information
about concentrations of criteria air pollutants and toxic air contaminants
from measurements, air quality modeling, or other information quantifying
exposure burden.
•
Identifying sensitive receptors
(e.g., schools, day care centers, hospitals), exposed population, and proximity
to mobile, area-wide, and stationary emissions sources of concern, including
freeways.
• Density of
contributing emissions sources and magnitude of emissions within the community.
•
Public health indicators
that are representative of the incidence and/or exacerbations of disease.
• Cancer risk
estimates based on air quality modeling.
• Socio-economic
factors such as poverty levels, unemployment rates, and linguistic
isolation.
B.
Air
District Responsibilities
CARB
is proposing that air districts provide recommendations as to specific
communities for deployment of community air monitoring campaigns and/or
development of community emissions reduction programs.
According
to CARB, the air districts are tasked with establishing the air monitoring
campaigns, as well as developing and implementing the community emissions
reduction programs because of their apparent expertise and experience.
CARB’s
plans include actions that are specific to air districts:
•
Adopt air district rules that
reflect the most stringent emissions limits, applicability, and best practices
and associated cost-effectiveness.
• Assume that air
district Best Available Control Technology (“BACT”) and T-BACT determinations
for new sources reflect the most stringent limits.
• New air district
rules and emissions limits to meet AB 617 requirements for the expedited
installation of BARCT.
Some
of the duties of the District are discussed in detail in the Process and
Criteria Draft which is discussed herein.
C.
Additional
Proposed Measures
In addition to District actions, CARB is suggesting:
• CARB-mandated
mobile source technology and fuel measures that will advance zero and near-zero
emissions technologies.
• Review and
potential revision of CARB airborne toxic control measures (ATCMs) and
suggested control measures for mobile, area-wide, and stationary sources.
• CARB and air
district incentive funding for mobile, area-wide, and stationary sources to
accelerate deployment of the cleanest technologies and associated
infrastructure, with a focus on zero-emissions technologies wherever feasible.
• Facility-based
approaches for reducing emissions.
• CARB and air
district mechanisms for targeted enforcement activities.
• Enforceable
agreements.
• Transportation-related
strategies to reduce community-level emissions impacts such as alternative
truck routes, preferential access for the cleanest technologies, and
geo-fencing.
• Strategies to
create more sustainable communities, including reducing vehicle miles
travelled, encouraging active transportation, and urban greening.
• Resources to
support education and community advocacy on land use planning and California
Environmental Quality Act (CEQA) review.
• Mitigation strategies such as air filtration,
buffers, and vegetation barriers.
In addition to the Concept Paper, the technical criteria,
requirements for public process, and timelines for the air district and
community, self-recommendations are available in the Process and Criteria for
2018 Community Selections.
V. The Community Air Protection Program
Process and Criteria
The
Community Air Protection Program DRAFT Process and Criteria for 2018 Community
Selections[3] were
drafted to help identify the criteria for identifying the communities that will
be addressed under their plan:
1)
Community Self-Identification -
There is a process for communities to essentially nominate themselves for
consideration. Such nominations are
submitted to the local Air Districts for review.
2)
There is also a section to assist
air districts in providing initial, and then final, recommendations for
identifying local target communities.
The Process and Criteria sets out numerous data resources that a District
should use in its review. Sources the districts are to review include:
a.
Information about concentrations of
criteria air pollutants and toxic air contaminants from measurements, air
quality modeling, or other information quantifying exposure burden.
b.
Sensitive receptors (e.g., schools,
day care centers, hospitals), exposed population, and proximity to mobile and
stationary emissions sources of concern, including freeways.
c.
Density of contributing emissions sources and
magnitude of emissions within the community, including mobile, area-wide, and
stationary sources.
d.
Public health indicators that are
representative of incidence or exacerbation of disease related to air quality.
e.
Cancer risk estimates based on air
quality modeling.
f.
Socio-economic factors such as
poverty levels, unemployment rates, and linguistic isolation.
3)
Air District initial submittals and
later final assessment are first due in April 2018, then the final in July of
2018. The Process and Criteria documents
contain a list of the information required to be in an air district’s
submittals. Additionally, there are
specific requirements for the public review process despite the short timeline
for review and implementation of the CARB plan.
VI.
Timeline
One
of the concerns with the Concept Plan and the Process and Criteria is the short
timeframe proposed per statutory requirements.
The timeline under the process identified in this document is as
follows:
February
2018: Draft Process and Criteria for 2018
Community Selections released.
April
30, 2018: Initial community list from air
districts submitted to CARB.
July
31, 2018: Final air district 2018 Community
Selections recommendations submitted to CARB.
August
2018: CARB posts recommended communities
with Community Air Protection Program
Framework
and planning documents for public comment.
September 2018: Board
meeting to consider selection of 2018 communities.
Lee N.
Smith is a partner in the litigation department of the firm's Fresno and
Sacramento offices, and is heading the firm's Environmental and Agricultural
Law Department, where he provides representation to clients in the areas of
Environmental Law Compliance and Litigation, the California Environmental
Quality Act (CEQA), Land Use, Proposition 65, Water Law and Litigation in the
Central Valley. His experience includes air quality and hazardous
materials compliance, food safety, and water quality at both the federal and state
levels. He has handled cases involving
the EPA, Cal-EPA, the Central Valley Regional Water Quality Control Board, CalRecycle,
the San Joaquin Valley Air Pollution Control District and other environmental
agencies. He has also been involved in federal litigation involving the
Clean Water Act (CWA), the Clean Air Act (CAA), the Comprehensive Environmental
Response Compensation and Liability Act (CERCLA), and the Resource Conservation
and Recovery Act (RCRA) as well as state court litigation concerning pesticide
contamination, CEQA and Proposition 65.
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