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2014 Industrial General Permit Blog Article 2


Types of Industrial Facilities Requiring Permit Coverage Under the New 2014 IGP

Wastewater TreatmentThe new National Pollutant Discharge Elimination System (NPDES) General Permit for stormwater discharges associated with industrial activities (Industrial General Permit) will become effective on July 1, 2015, and includes significant changes to industrial facilities requiring permitting, monitoring, and reporting processes.

Facilities requiring permitting under the IGP can include Federal, State, municipally owned and private facilities. Types of industrial facilities requiring permit coverage under the new Industrial General Permit (IGP) include the following:

1. Facilities required by Federal regulations.

      • Examples of the Federal regulated facilities can be located in Attachment A of the IGP. 

2. Facilities designated by the State Regional Board. These facilities are further categorized and defined by Standard Industrial Classification codes (SIC). Examples of Category descriptions and corresponding SIC codes can be found in Attachment A of the IGP and examples of the designated facilities are as follows:

      • Manufacturing Facilities
      • Oil and Gas/Mining Facilities
      • Hazardous Waste Treatment, Storage or Disposal Facilities
      • Landfills, Land Applications Sites, and open Dumps Facilities
      • Recycling Facilities
      • Steam Electric Power Generating Facilities
      • Transport Facilities
      • Sewage or Wastewater Treatment Work Facilities

3. Facilities that have been directed by the Regional Board.

      • Facilities that have been directed by the Regional Board to obtain coverage under the new IGP are required to comply and be covered under the new permit.

Furthermore, the new IGP requires “light industry” to enroll under the new permit. However, a “light industry” facility can claim a conditional exclusion by filing a No Exposure Certification (NEC) certifying that there is no exposure of industrial activities and storage of materials to stormwater. The NEC is required to be filed annually.

The new IGP has recently adopted changes and will become effective on July 15, 2015. With changes to the new IGP, facilities must work with more stringent guidelines and produce documentation by the implementation deadline in order to remain in compliance. All facilities (new or previously covered) regulated under the IGP will now need to evaluate their current practices and documentation with respect to the new IGP requirements to assure that they are in full compliance. Significant advantages and an expedited permitting process can be found with those that understand the new requirements and can generate the required documents.

For additional information on determining your facilities enrollment under the new IGP, or any other related topics to the new IGP please contact us. For an overview of the 2014 IGP, see our previous article here, and stay tuned for our next post in the series.

If you have any questions, or wish any assistance in the new Industrial General Permit requirements, please feel free to contact Kristin Roberts or Ed De La Llave at (805) 644-4455, or request a quote below. 

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California Regulatory Update - AB 1103: Non-residential Building Energy Use Disclosure


RinconA state law originally passed in 2007 has taken effect that requires certain commercial property owners to disclose their structure’s energy use. California’s Assembly Bill (AB) 1103, the Non-residential Building Energy Use Disclosure, stipulates that non-residential property owners must complete energy benchmarking and disclose building energy usage for buildings with a gross floor area of 10,000 square feet or larger anytime they finance, sell, or lease such structures. After July 1, 2014, the same regulations will apply to non-residential buildings with a gross floor area of greater than 5,000 square feet. Certain use types are excluded, including factories, residential, institutional, and laboratory buildings.

To standardize this reporting, AB 1103 requires non-residential building owners to compile and input their buildings energy consumption data into the US Environmental Protection Agency’s (EPA) ENERGY STAR Portfolio Manager system. Both electricity and natural gas data are required to be uploaded. To upload data, property owners are required to gather annual energy usage data from each individual building tenant and generate a Data Verification Checklist for the entire building. The law applies no matter how many individual tenants occupy the building. For shopping centers, owners may benchmark each building individually or combine each building’s energy use as a package for the entire shopping center.

RinconThe ENERGY STAR Portfolio Manager system is an on line system accessible for non-residential buildings throughout the Unites States that that acts as a repository for building energy usage data. Upon input, each buildings energy usage is compared to buildings across their zone and a efficiency rating and report for the building is generated.

To comply with AB 1103, non-residential building owners must disclose the Data Verification Checklist and rating to the following:

- A prospective buyer of the building (no later than 24 hours prior to execution of the sales contract).
- A prospective lessee of the entire building (no later than 24 hours prior to execution of the lease).
- A prospective lender financing the entire building (no later than submittal of the loan application).
- Submit an electronic copy of the “Data Verification Checklist” via email to the CEC

For additional information or assistance with AB 1103, energy audits, or sustainable management planning, please contact Erik Feldman at (805) 644-4455 or request a quote using the button below.

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Authority cited: Sections 25213, 25218(e), 25402.10, Public Resources Code. Reference: Section 25402.10, Public Resources Code. 

2014 Industrial General Permit Blog Article 1


With the release of the new 2014 Industrial General Permit, we will be launching a blog series to introduce and provide information to determine whether an industrial facility must comply with California’s stormwater regulations.  Over the next few months, keep an eye out for posts in our new series, “Stormwater Dischargers Associated with Industrial Activities” with subtopics that will help explain specific 2014 IGP key changes and compliance requirements. 

Newly Adopted 2014 Industrial General Permit For Stormwater Dischargers

On April 1, 2014 the California State Water Resource Control Board released the news that the National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Dischargers Associated with Industrial Activities, NPDES No. CAS000001 has been adopted and will replace the current Industrial General Permit (IGP) issued in 1997.  You can find the new 2014 IGP and supporting documents here


The new lengthy 2014 IGP differs substantially from current requirements and contains significant revisions from the former permit and the circulated drafts in 2011 and 2013.  The 2014 IGP will vastly increase the number of industries affected and impose new and increased compliance requirements.  The complete implementation of the 2014 IGP is on or before July 1, 2015 with appropriate documents uploaded and certified to the State Water Board’s Storm Water Multiple Application and Report Tracking System (SMARTS), making all reports readily available to the public. 

Key Changes to the Industrial General Permit

Regulation of Light Industries: Under the former permit, certain so-called "light industry" facilities were exempt from the permit's requirements as long as the facility eliminated non-storm water discharges and that their industrial activities were not exposed to storm water. However, under the 2014 IGP, these light industries must now enroll for permit coverage.  These light industries may claim a conditional exclusion by filing a "No Exposure Certification" (NEC), certifying that their facility has no exposure of industrial activities and materials to storm water discharges. In order for a Discharger to seek NEC coverage, the Discharger must apply and submit Permit Registration Documents (PRDs), prepare and submit a Site Map, pay the annual fee and certify the NEC demonstrating no exposure via SMARTS on or before the implementation date.  In addition, the Discharger or facility must allow inspections by Water Boards, local MS4, or US EPA staff.  In order for the Discharger to stay in compliance with the State Water Resource Control Board, the Discharger must annually verify no exposure and pay the annual fee via SMARTS.

Mandatory BMPs: The former permit allowed dischargers to "consider" which non-structural and structural best management practices (BMPs) should be implemented to reduce or prevent pollutants in storm water discharges. The 2014 IGP requires the implementation of numerous "minimum BMPs," including good housekeeping requirements, preventative maintenance, material handling and waste management, erosion and sediment controls, and employee training programs. Additional "advanced BMPs," including exposure minimization, storm water containment, discharge reduction, and treatment control BMPs, must also be implemented as necessary to reduce or prevent pollutant discharge.

Monitoring and Sampling Requirements: The former permit required conducting pre-storm visual observations and quarterly authorized and unauthorized non-storm water discharge visual observations.  The 2014 IGP has now combined these two previous requirements into one new visual observation that is conducted at least once per calendar month during daylight hours of scheduled facility operating hours and on days without precipitation.  The Discharger shall provide an explanation in the Annual Report for uncompleted monthly visual observations.  Additionally, sampling protocols under the 2014 IGP have been modified to collect and analyze storm water samples from 2 Qualifying Storm Events (QSE) within the first half of each reporting year (July 1 to December 31) and 2 QSE within the second half of each reporting year (January 1 to June 30).  Minimum required analyses are as follows: Total Suspended Solids (TSS), oil and grease (O&G) and pH.  Additional analyses and parameters may be required based on the facilities Standard Industrial Classification Codes and location to impaired water bodies with a 303(d).  The Discharger shall submit all sampling and analytical results for all sampling events via SMARTS within 30 days of obtaining all results for each sampling event. 

Numeric Action Levels (NALs) and Exceedance Response Actions (ERAs): The 2014 IGP includes both annual and instantaneous maximum NALs, exceedances of which will trigger increasing levels of required actions and treatment controls (Figure 1). If a NAL exceedance occurs as specified in the 2014 permit, the Discharger has to implement various ERA corrective actions.  There are two levels of these actions: Level 1 ERA and Level 2 ERA.  Level 1 ERAs require a site evaluation and report by a QISP and Level 2 ERAs require a technical report by a QISP, non-industrial or background considerations and possible treatment. 

Figure 1: Compliance Determination Flowchart

IGP Scematic2Source: Fact Sheet for the IGP.

Compliance Groups: The 2014 IGP eliminated group monitoring and created a new “compliance group” option for facilities and Dischargers of the same industry type with similar activities, pollutant sources and pollutant characteristics.  Participating facilities and Dischargers that form a compliance group are required to have a designated compliance group leader who has completed a State Water Board approved training program for compliance group leaders.  The compliance group leader is responsible to inspect each participant’s facility each year and is required to collect and analyze storm water samples from the participating group facilities twice each year.  

The release of the 2014 IGP is very detailed and has many more compliance requirements than the previous 1997 permit.  Rincon Consultants can assist Dischargers and facilities with the preparation of these new IGP compliance requirements. 

Our goal with this series is to prepare you for the 2014 IGP key changes and requirements. Please stay tuned for our next post. If you have any questions, or wish any assistance in the new Industrial General Permit requirements, please feel free to contact Kristin Roberts or Ed De La Llave at (805) 644-4455.

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Actions to Address California’s Emerging Water Supply Crisis


By Ryan Gardner, LEED GA, ENV SP

RinconWith California entering its third year of drought conditions, Governor Jerry Brown has declared a drought emergency. 2013 was the State’s driest year on record and early projections for 2014 predict no change in sight. According to California Cooperative Snow Survey data as of March 11, the average Sierra snowpack is 69% below average, with lows in Northern California at 80% below average. Snowpack in the Sierras has historically acted as a free reservoir, storing water that can be used later in the year. The melt water from the snowpack typically represents one third of the state’s total water supply. This year’s below average snowpack is being coupled with low reservoir levels due to the past two years of dry weather. It is these conditions, in part, that prompted the Governor’s state of emergency announcement and a State Water Project prediction that for the first time in its history, “water agencies should expect a zero percent allocation of SWP water supplies due to record dry conditions and low storage levels.” A $687 Million dollar aid package has also been signed to provide aid to farmworkers and install new infrastructure to deal with the severe drought conditions.

As of January 17th, Brown has requested a 20% voluntary decrease in water use from residents, industry, and agriculture. Multiple cities throughout California have already implemented water restrictions, including Sacramento, Santa Cruz, and Long Beach - and many other agencies are preparing to enact water management plans. However, local plans may be overruled by statewide restrictions later in the season. The State Water Control Board has already stated that water right curtailments may become necessary. With more dry weather projected and the uncertain impacts of global climate change, the risks associated with water use have increased dramatically. An analysis of the 1991 California drought showed that a majority of water agencies were forced to enact water rationing programs and that many households paid significant fines and surcharges for overuse (in addition to higher standard rates) (Dixon, Moore, and Pint, 1996). The study also showed that although industrial and commercial users were largely insulated from price increases and rationing, their water use decreased by 15-20%, at least partially due to a slumping economy. In order to mitigate the possibility of water related risks, the residential, commercial, and industrial sectors have several water conservation options at their disposal.

Water Use Efficiency Measures

• Conduct a water audit to identify water use inefficiencies
• Install new water fixtures which perform better and use less water
• Install aerators on old faucets
• Investigate feasibility of greywater or water reuse
• Convert lawns to xeriscaping
• Manage storm-water runoff
• Infrastructure improvements and capital investments

Conducting a water use efficiency audit is the first step in determining the most cost effective water conservation projects. Many residential and commercial buildings can be easily retrofitted to reduce water and procure significant savings on monthly water bills. Ocean friendly gardens, greywater systems, and new fixtures are just some of the options available. Industrial, agricultural, and municipal level operations that depend on large quantities of water may need to look further to reduce their water use. Capital investments, which were not economical several years ago, may become feasible as water prices rise or water simply isn’t available. Both residential and large-scale water users can implement these water conservation projects in order to decrease environmental impacts as well as mitigate economic risks associated with the current drought conditions.

As California continues to see the effects of climate change and the population continues to grow, water has the potential to become an increasingly limited resource. If water supplies continue to decrease, costs will most likely rise in response. Enacting water conservation measures now presents an opportunity to increase water use efficiency, decrease costs, reduce risk, and be prepared for the future.

For additional information or assistance with water resource management, please contact Rincon Consultants here or request a quote using the button below.

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Green Parking Lots: Reducing Stormwater Runoff Through Infiltration


stormchamber2The retrofit and redesign of existing parking lots presents an opportunity to reduce stormwater runoff and improve the sustainability and visual appearance within communities. Stormwater infiltration projects involve measuring the percolation potential of parking lots and installing permeable pavers to allow for stormwater infiltration, thus reducing the runoff that would otherwise wash into storm drains, creeks, and the ocean. Fine rock and soil filter the stormwater before it is recharged.

Rincon has completed several parking lot infiltration projects, and within the last month have been contracted for four similar projects. One of these projects, completed in December 2013, included the removal of approximately 100,000 square feet of asphalt and the installation of permeable pavers in Santa Barbara. Going forward, Rincon is looking forward to continuing our work on these exciting projects.

For more information on these projects and Prop 84 funding, please visit

Greenhouse Gas Emission Reporting: Risks and Solutions


By Ryan Gardner, LEED GA, ENV SP


The year 2013 presented a number of actions related to California Air Resources Board (ARB)’s Greenhouse Gas (GHG) Reporting program. The first penalties levied by the ARB to reports for failure to comply with AB 32 were settled in November. Nine companies were fined a total of $295,000 for errors found in their 2011 and 2012 annual greenhouse gas reports. Several types of reporting errors were identified and by the ARB including:

• late reports
• deficient GHG Monitoring Plans
• failure to demonstrate the required level of precision, and
• various errors with GHG production calculations

With the levying of these penalties, the ARB makes a distinct departure from the leniency associated with the first two years of the GHG reporting program compliance enforcement, and opens the door to the heightened regulatory scrutiny that can be expected in the future.

Since its adoption, the AB 32 Mandatory Reporting Regulation (MRR) has undergone two significant updates to meet the needs of the Cap-and-Trade program and to repair some inconsistencies with the regulation. Revisions have ranged from changes to terminology in the definitions to expansion of the reporting requirements to include a variety of different product data. However, from a reporting perspective, the most significant part of the update is the revision made to section 95131(b)(8), which states that any discrepancies between a facilities-reported GHG data and the data evaluated by their GHG Verifier must be corrected. At first review, this change to the MRR does not appear to be overly onerous. However, a thorough review of ARB’s interpretation reveals that even a minor discrepancy can lead to a statement of non-conformance. ARB has stated that if all discrepancies identified during the verification process are not corrected, verifiers are obligated to submit an adverse verification statement, in accordance with sections 95131(b)(9) and 95102(a)(8). The implication of this change is that even minor rounding difference that may only represent a fraction of a percent can lead to a need for significant revisions to the GHG report or a reporter may face a significant monetary risk.

With these changes, reporters must now work through a more complex reporting and verification program while at the same facing heightened regulatory scrutiny. To protect themselves from fines and negative verifications reports must be confident in their abilities to adhere to an accurate greenhouse gas monitoring and reporting methodology that fully complies with the revised MRR. Significant advantages can be found in reporters who have a strong understanding of the verification process and will be able to design their calculations and reports to provide all the specific data and precision required by the MRR. A well-documented report will help to mitigate risks associated with increasingly stringent emissions regulations and save time and effort throughout the verification process.

For additional information or assistance with GHG reporting or verification assistance, please contact Ryan Gardner or Erik Feldman.

Rincon Consultants - Oakland
Phone: 510-834-4455

Rincon Consultants - Ventura
Phone: 805-644-4455


For more information on Rincon's sustainability services or to request a quote, please click the buttons below.

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Rincon Seeks Endangered Fox


Recently, Rincon biologists performed trail camera surveys looking for the endangered San Joaquin kit fox in the Central Valley. Trail camera surveys were just one part of the complete study of a proposed renewable energy project site in Fresno County, which also included a jurisdictional delineation, cultural and paleontological assessment, habitat mapping, and a raptor nesting habitat assessment within one mile of the site. No foxes were found, but many other animals were captured. Check out some of the great nighttime (and daytime!) photos captured.

This is what one of our camera stations looked like.

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We didn’t find any kit foxes, but we did capture some coyotes roaming the site.

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And even some kangaroo rats, which we did not expect.

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Of course, there were rabbits…

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And ravens a plenty!

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It didn’t take long for this loggerhead shrike (a state Species of Special Concern) to figure out that something fishy was going on.

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The local cat figured it out there was free food!

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As did the sheep dogs.  Yum!

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And when we say wildlife, we don’t just mean animals!  (Luckily, they left the camera alone.)

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Hey, is this thing on?

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For more information about Rincon's biological resource services, download the flyer below.

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The New 2013 Phase I ESA Standard – The Changes and Impacts of ASTM 1527-13



ASTM has recently published a new standard for Phase I Environmental Site Assessments (ESAs), ASTM Standard E1527-13, which replaces ASTM E1527-05 as the industry guideline to conduct Phase I ESAs. Rather than create a new set of requirements, the basic purpose of the new E1527-13 standard was to clarify some ambiguous language and guidance in the E1527-05 standard. These changes will have little impact on due diligence professionals that were already conducting Phase I ESAs “correctly” (in accordance with the actual intent of the language). However, these changes will have an impact on the improved quality of Phase I ESAs.

The U.S. EPA is expected to publish an updated/amended final rule formally referencing this new standard in the upcoming months. According to online resources such as EDR’s webinars presented by ASTM committee members, E1527-05 may continue to be formally referenced by the EPA in its updated/amended AAI (All Appropriate Inquires) rule, meaning that a consultant could conduct a Phase I to either standard and be in compliance with AAI.

In the meantime, Rincon has updated its reports and is beginning to educate clients as to the new language they may see in our reports. This article is intended to highlight the key changes in the new standard and clarify common misconceptions. The following is a brief summary of changes with the new ASTM E1527-13 standard.

Definitions: The new standard attempts to clarify previous ambiguities by introducing a new term, Controlled Recognized Environmental Condition (CREC), and updating the definitions of Recognized Environmental Condition (REC) and Historic Recognized Environmental Condition (HREC).

• A CREC is a past release that has been addressed to the satisfaction of the applicable regulatory authority but is subject to some form of control, such as a property use restriction or engineering control. The classification of CREC will be helpful for identifying post-acquisition continuing obligations for property owners (i.e., site use limitations, ensuring that the control is implemented as required by the regulatory agency).

• An HREC is a past release that has been addressed and meets unrestricted land use criteria, for which no controls are required. Note that the Environmental Professional must determine if the HREC is actually a REC at the time of the Phase I: if there has been a change in regulatory criteria since the time of the release, and the EP believes that the impact would no longer qualify for unrestricted land use (i.e., a regulatory agency may now require a control), it may fall under the definition of an REC or CREC.

• The definition of REC was slightly modified and simplified but has not substantially changed.

File Reviews: The new standard states that if the site or adjacent properties are listed in standard record sources, “pertinent regulatory files and/or records associated with the listing should be reviewed” (emphasis added) to determine if a recognized environmental condition (REC), historical recognized environmental condition (HREC), or de minimis condition exists at the subject property in connection with the listing. Note that the standard does not say “shall” be reviewed; it goes on to say that instead of reviewing actual regulatory files (e.g., driving to the state agency to review hardcopy files), the EP may seek alternative sources of information (e.g., online records, interviews with regulatory agency personnel). If a regulatory file review is not conducted, the EP is required to explain the justification in the report.

Vapor Migration: The standard is clarified to reference vapor migration as one of the forms of movement of hazardous substances or petroleum products in the subsurface. Consultants are required to assess the potential for a REC at the subject property in connection with vapor migration, similarly to how we already assess for impacts from groundwater migration or impacts to soil. A distinction must be made between vapor migration and vapor intrusion; there is no requirement to assess vapor intrusion (i.e., into a building). Even though the word “vapor” does not appear in the E1527-05 standard, EPs were supposed to always be assessing vapor migration. A note in the new standard states that vapor migration is described in the ASTM standard E2600 for Vapor Encroachment Screens, but that there is no requirement to use that standard to comply with ASTM. Although vapor encroachment screens (VESs) are not included in the new standard, they can be requested by the Client and may be recommended by the consultant based on the results of the Phase I ESA. Look for our upcoming white paper regarding the ASTM VES standard E2600 to learn more about vapor encroachment.

Moving forward, the important next steps for property acquisition professionals will be to:

• Familiarize yourself with the new ASTM standard
• Discuss the changes with your current environmental due diligence consultant
• Coordinate with your lending institution about their specific Phase I ESA requirements
• Coordinate with grant and other loan sources about their specific Phase I ESA requirements
• Sharing suggestions and feedback with other property acquisition professionals and the environmental consultant community

Additionally, these changes and others can be discussed further with our Phase I ESA Due Diligence Professionals. Click the buttons below to download our Site Assessment flyer or to request a quote.

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2013 NPDES Industrial Storm Water Permit Proposes Significant Changes



Urban stormwater runoff is increasingly recognized as a significant variable in the health of aquatic organisms and public health. Debris and pollutants carried by stormwater into surface waters used for potable and recreational water supplies can adversely affect these resources if not properly treated. For nearly two decades, the California State Water Resources Control Board (SWRCB) has regulated the runoff and treatment of storm water from industrial, construction and municipal sources in California. The State Water Board is required to issue permits that are consistent with the National Pollutant Discharge Elimination System (NPDES) storm water regulations adopted by the US Environmental Protection Agency (USEPA) in accordance with the federal Clean Water Act.

Storm Water Pollution Prevention Plans (SWPPPs) are a requirement of the NPDES that regulate water quality when associated with construction or industrial activities. This past July, the SWRCB released the 2013 Draft NPDES Permit for the Discharge of Storm Water Associated With Industrial Activities (the "Draft Industrial General Permit", or IGP), which proposes significant changes in the regulation of storm water discharges from industrial facilities.The following summarized changes in the revised and simplified Draft 2013 IGP from the 2012 Draft IGP.

Training Requirements
1. There is only one type of Qualified Industrial Storm Water Practitioner (QISP) in the IGP, instead of three as previously proposed.
2. QISP training is not required until exceedance response actions are triggered.
3. Additionally, anyone can prepare No Exposure Certification (NEC) – a QISP is no longer required.


Monitoring Requirements
1. The previous requirements to conduct pre-storm visual observations and quarterly authorized and unauthorized non-storm water discharge visual observations are now combined into one new monthly visual observation requirement.
2. The previous requirement to conduct monthly storm water visual observations is now tied to the actual sampling events, which are required twice in each half of the year.
3. Rain gauges and measurement of rainfall are no longer required.
4. Litmus paper is allowed to be used for screening of pH exceedances.
5. Lastly, eligibility for a Sample Frequency Reduction only requires data from four storm events instead of eight.

Exceedance Response Actions (ERAs). The permit proposes differing levels of response when water quality is affected, depending on the magnitude and frequency of the exceedence.
1. Level changes in the ERA requirements now will become effective at the start of the reporting year following the exceedance(s).
2. Action plans and technical reports are part of the requirements for the highest level of exceedences requiring action.

Compliance Groups
1. Dischargers from the same or similar industries are encouraged to form Compliance Groups.
2. Only one type of Compliance Group is allowed, instead of two. Participants in Compliance

Annual Reports. The 2013 draft IGP greatly reduces annual reporting requirements.

No Discharge. The 2013 draft IGP provides new “No-Discharge” eligibility requirements for dischargers eligible to file a Notice of Non-Applicability.

The 2013 Draft NPDES Industrial General Permit (and other associated documents) may be viewed and downloaded from the State Water Board’s website at:

To download Rincon's water services flyer or to request a quote, please click the buttons below. 

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Legislative Update: CEQA & GHG Thresholds


A recent court decision on a CEQA case provides guidance that may have ramifications for CEQA projects on a couple of fronts: the need to evaluate environmental impacts on a proposed project, in addition to environmental impacts caused by a proposed project, and the level of CEQA review necessary when adopting significance thresholds. In 2012, the Alameda Superior Court invalidated the Bay Area Air Quality Management District (BAAQMD)’s adoption of CEQA significance thresholds for certain air pollutants and greenhouse gasses on the basis that the adoption of thresholds constituted a “project” under CEQA, and therefore required CEQA review. On August 13, the First District Court of Appeal filed its decision on California Building Industry Association v. BAAQMD, in which the Court upheld the process followed by the BAAQMD to adopt its 2010 significance thresholds for criteria air pollutant emissions, toxic air contaminants, and greenhouse gas emissions, ruling that a public agency’s adoption of CEQA significance thresholds does not constitute a “project,” and consequently, does not require CEQA review.

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Perhaps most importantly for CEQA practitioners, the Court also used the decision to acknowledge that exposure to preexisting environmental hazards can be a substantial adverse effect on new project residents under CEQA. The Building Industry Association had argued that the BAAQMD’s thresholds were contrary to recent case law, such as Ballona Wetlands Land Trust v. City of Los Angeles, because the thresholds improperly required an analysis of the impact of the existing environment (i.e., existing air quality issues, including toxic air contaminants) on the project itself (or “new receptors,” such as new residents of a project) rather than just the impacts of the project on the environment. In the Ballona Wetlands decision, the Second District Court of Appeal ruled that an EIR need not discuss impacts of sea level rise on a proposed project or the people who may live in the proposed project. In this more recent decision, the Court disagreed with the Ballona Wetlands decision, stating that: “A new project located in an area that will expose its occupants to preexisting dangerous pollutants can be said to have substantial adverse effect on human beings.” However, the Court’s decision did not fully address the issue of whether such analysis is appropriate for individual projects where the application of the threshold would only address the impacts of the environment on the project itself. As a result, CEQA practitioners should continue to tread cautiously in this area for the foreseeable future.

In addition, this decision reinforces the opportunity for public agencies to adopt significance thresholds in accordance with the CEQA Guidelines, and provides the means by which BAAQMD may reinstate their previously adopted thresholds for GHG analysis, or adopt new standards. However, the Court’s decision does not become final for more than a month, allowing time for the Building Industry Association to seek review in the California Supreme Court or in a rehearing. Even if there is no further litigation, it will still take time for the BAAQMD to revisit the issue.

For more information on the CEQA services Rincon provides, download our SOQ below.

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