New Source Review Challenge Heads for Governor’s Desk

By Published On: October 11, 2003

SB 288, California’s rejection of the recent, controversial changes to the federal New Source Review rules for large-scale facility emissions, moved the state closer to another potential showdown with the Bush administration following the bill’s passage. The narrow 43-35 vote in the Assembly on September 11 puts the measure on track to be signed into law by Governor Gray Davis—assuming he is still in possession of the office when the legislation arrives. Davis said he would autograph SB 288. Critics of the state measure continue to warn that its provisions could invite conflict with Washington. The federal Clean Air Act holds that state air-quality laws must be as stringent as or stricter than those of the federal government. States that persist in maintaining rules held to be less stringent could be subject to millions of dollars in federal sanctions. According to industry watchers, it appears doubtful that the U.S. Environmental Protection Agency would attempt to supersede California’s air standards. This view, however, hasn?t completely chased away the specter of such a development. “It’s incontestable that the California program is tougher than the federal government’s,” said Carl Zichella, Sierra Club regional staff director. Even if the EPA insisted “for dogmatic political reasons” that its own rules were tougher, no court would uphold that determination, he added. If that day comes, California will have a point to prove, and Zichella would welcome the opportunity. “I’d love to have them tell us that California’s program is weaker than the federal rules that 14 states are suing to overturn,” he said. The prospect of state emission laws being trumped by federal stringency requirements is more likely in the Northeast and where local governments have decided that their standards should be equivalent with the EPA’s, said Steven Hill, manager of permit evaluation for the Bay Area Air Quality Management District. In addition, New Source Review rules would be triggered for only a miniscule portion of BAAQMD’s workload. “For the most part, the rules don’t affect 99-plus percent of [Prevention of Significant Deterioration] permits that we issue,” he said. In a September 16 letter to the Senate Environment and Public Works Committee, the industry coalition, the Electric Reliability Coordinating Council, once again lauded the federal government’s “Clear Skies” Act of 2003. The council referred to an EPA finding released this week that held that since 1970, total national emissions for the six most common pollutants have dropped by 48 percent while gross national product surged by 164 percent and energy consumption increased by 42 percent. As a point of interest, any air enhancement during this time would have come as a result of mandatory rather than voluntary compliance with emissions rules. The Bay Area and state air boards along with the California attorney general back the longstanding New Source Review guidelines. The case the state brought against the EPA over the New Source Review rewrite earlier this year is still pending in appeals court in Washington, D.C. Future attempts to prove to the EPA that the state’s air laws are tough enough will be unnecessary and costly, said AG spokesperson Tom Dresslar. At present, no estimates are available showing the potential cost that California’s 35 air districts could bear in making their cases to the EPA. According to BAAQMD’s Hill, states need not demonstrate the stringency of their rules until 2006.

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