United States: California Flips The Focus From Facility Emission Limits To Community Impact Monitoring And Mitigation

Last Updated: August 9 2017
Article by Michael Steel

On Monday, July 17, 2017, the California legislature passed a two-bill package, Assembly Bill (AB) 398, which extends California's Cap-and-Trade Program to 2030, and AB 617, the companion bill that didn't get as much attention as AB 398, but will have a major impact on businesses in California. 

AB 617 will require increased monitoring, a change in emissions reporting for stationary sources, an expedited schedule for the implementation of best available retrofit control technology (BARCT), and an increase in air emission penalties.  Key provisions also require the California Air Resources Board (CARB) to prepare a statewide strategy to reduce toxic air contaminants and criteria pollutants in communities affected by a high cumulative exposure burden, and establish a statewide clearinghouse that identifies the best available control technology (BACT), BARCT for criteria pollutants, and related technologies for the control of toxic air contaminants.

Stationary Source Reporting

AB 617 defines "stationary source" as a facility required to report its greenhouse gas (GHG) emissions to CARB under the Cap-and-Trade Program, or which emits 250 or more tons per year of any nonattainment pollutant or its precursor, or receives an elevated prioritization score for cancer or non-cancer health impacts.

CARB must also establish a uniform statewide system for the annual reporting of criteria pollutants and toxic air contaminants from stationary sources.

Statewide and Community Emissions Reduction Program

By October 1, 2018, CARB must prepare a statewide strategy to reduce emissions of toxic air contaminants and criteria air pollutants in communities affected by a high cumulative exposure burden.  CARB must update the strategy at least once every five years.

The strategy must include criteria for the development of community emission reduction programs including:

  • Identification of communities with high cumulative exposure burdens for toxic air contaminants and criteria air pollutants.  The assessment must prioritize disadvantaged communities and sensitive receptor locations.
  • A methodology for assessing and identifying the contributing sources or categories of sources, including stationary and mobile sources.
  • An assessment of whether a district should update and implement the risk reduction audit and emissions reduction plan for a facility to achieve emission reductions commensurate with its relative contribution.
  • An assessment of the existing and available measures for reducing emissions from the contributing sources or categories of sources, including BACT, BARCT and BACT for toxic air contaminants (TBACT).

Within one year of CARB's identification of a site, the air district must adopt a community emissions reduction program using cost-effective measures, including BACT, BARCT and TBACT.

The districts must submit community emissions reduction programs to CARB for review and approval within 60 days following CARB's identification of affected sites.  Programs that are rejected must be resubmitted within 30 days.

Community and Fence-Line Monitoring

AB 617 requires CARB to develop and implement a monitoring plan that includes the use of advanced sensing monitoring technologies to assist in identifying areas that are most impacted, the responsible emissions sources and the steps needed to address public health impacts.

  • By October 1, 2018, CARB must evaluate the availability and effectiveness of toxic air contaminant and criteria air pollutant advanced sensing monitoring technologies and existing community air monitoring systems, as well as the need for and benefits of establishing additional community air monitoring systems.  This evaluation must be reflected in a "monitoring plan."  CARB must also select the highest priority locations for deploying monitoring systems.
  • By July 1, 2019, districts must deploy community air monitoring systems in the selected locations.  Additionally, the air district may require any stationary source that emits pollutants in, or that materially affects, the highest priority locations identified to deploy a fence-line monitoring system or other appropriate real-time, on-site monitoring system.
  • By January 1, 2020, and January 1 of every year thereafter, CARB must select additional locations as CARB deems appropriate based on the monitoring plan.

BARCT

By January 1, 2019, air districts in nonattainment areas must adopt a schedule for the implementation of BARCT at industrial facilities covered under the Cap-and-Trade Program.  These retrofits must be completed by the earliest feasible date, but no later than December 31, 2023.

The schedule must give highest priority to those facilities that have not modified emissions-related permit conditions for the greatest period of time.  Facilities that have implemented BARCT since 2007 are exempt from the schedule.

Statewide BARCT Clearinghouse

AB 617 requires CARB to establish and maintain a statewide clearinghouse that identifies the BACT, BARCT for criteria pollutants, and related technologies for the control of toxic air contaminants.

Air districts must use the information in the statewide clearinghouse when updating control technology determinations.

Air Emissions Penalty Increases

AB 617 increases penalties from $1,000 per day to $5,000 per day for specified air emissions violations and starting January 1, 2018, maximum penalties assessed will increase annually based on the California Consumer Price Index.

Funding Questions

Although the statute imposes significant new duties upon air districts, it does not provide funding for the implementation of these new programs.  In addition to the cost of overseeing and implementing these programs, the capital cost of setting up community monitoring systems will be significant.  California businesses can expect districts to look to the businesses for additional fees to support these programs.

Lois Miyashiro, an environmental analyst in the firm's San Francisco office, assisted in the preparation of this client alert.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Michael Steel
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions