United States: The Nickel Report: California's New Criteria Pollutant And Toxics Emissions Reporting Regulation

As noted in previous blog posts, Assembly Bill 617's (AB 617) Community Air Protection Program (CAPP) is limited in effect to specific, named communities included in it. Thus, stationary sources not located in a CAPP included community are not regulated by CAPP. However, AB 617's new requirements are not limited to CAPP. AB 617 also requires the California Air Resources Board (CARB) to develop new regulations for criteria pollutant and toxics emissions reporting. The new regulation, titled "Regulation for the Reporting of Criteria Air Pollutants and Toxic Air Contaminants" (CTR Regulation) is not yet finalized, but the current draft will apply to stationary sources throughout California, regardless of whether they are located in a CAPP community.

The CTR Regulation aims to do a number of things, including:

  • Require regulated sources to annually report criteria pollutant and air toxics emissions;
  • Create uniformity for the types of criteria pollutants and air toxics that need to be reported;
  • Create uniformity for the contents of reports.

Ultimately, CARB hopes that the CTR Regulation will provide improved data that can be used by CARB, California's air districts and stakeholders to develop a better understanding of California's air quality and improve it.

While CARB has stated that it hopes to finalize the rule in 2019, with an effective date of January 1, 2020, stakeholders, including some of California's air districts, have serious concerns about the draft regulation. As of April 29, 2019, CARB received 82 comments in response to the CTR Regulation's March 2019 "15-Day Revisions." There were some common, general concerns in the critical comments. As noted by the Butte County Air Quality Management District, the latest version of the draft regulation reduces the reporting threshold from "250 tons per year of a nonattainment pollutant to 4 tons per year of a criteria pollutant."1 And, the threshold applies regardless of attainment status, thereby including facilities that were previously determined to not be "significant health risk contributors."2 The South Coast Air Quality Management District and others expressed concerns that the draft CTR Regulation: (1) does not guarantee that accurate data will be reported; (2) requires new facilities to report that represent a "very small fraction of the emissions inventory and overall toxic risk"; and (3) requires data be reported that is "not necessary and will be intensive to collect and verify."3

At this point, it is unclear how CARB will respond to the comments and whether it will make additional changes to the draft CTR Regulation or if CARB still intends the regulation to be effective starting January 1, 2020. However, if no changes are made to the draft regulation, new requirements will be placed on stationary sources throughout California, without much time for those sources to prepare for the new requirements. Thus, a larger community of interested parties should be monitoring and weighing in on the development of this rule and, ultimately, preparing for the changes.

Footnotes

1 Letter from W. James Wagoner, Air Pollution Control Officer, Butte Cty. Air Quality Mgmt. Dist., to Dave Edwards, Chief, Greenhouse Gas and Toxics Emissions Inventory Branch, Cal. Air Resources Board (Mar. 29, 2019) (available at https://ww2.arb.ca.gov/criteria-and-toxics-reporting/comments).

2 Id.

3 Letter from Philip M. Fine, PH.D., Deputy Exec. Officer, Planning, Rule Dev. & Area Sources, S. Coast Air Quality Mgmt. Dist., to Dave Edwards, Chief, Greenhouse Gas and Toxics Emissions Inventory Branch, Cal. Air Resources Board (Mar. 29, 2019) (available at https://ww2.arb.ca.gov/criteria-and-toxics-reporting/comments).

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