BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1387


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          SENATE THIRD READING


          SB  
          1387 (De León, et al.)


          As Amended  April 7, 2016


          Majority vote


          SENATE VOTE:  22-13


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Natural         |6-2  |Williams, Cristina    |Hadley, Harper      |
          |Resources       |     |Garcia, Gomez,        |                    |
          |                |     |McCarty, Mark Stone,  |                    |
          |                |     |Wood                  |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Appropriations  |11-4 |Gonzalez, Bloom,      |Bigelow, Chang,     |
          |                |     |Bonilla, Bonta,       |Jones, Obernolte    |
          |                |     |Eggman,               |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |Eduardo Garcia,       |                    |
          |                |     |Quirk, Santiago,      |                    |
          |                |     |Weber, Wood, McCarty  |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 








                                                                    SB 1387


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          SUMMARY:  Adds three members to the South Coast Air Quality  
          Management District (SCAQMD) Governing Board, as specified, and  
          creates a process by which the Air Resources Board (ARB) is  
          required to review and approve, disapprove, or amend and  
          approve, any plan for, changes to, or rules implementing, a  
          local air district's market-based incentive program (e.g., the  
          SCAQMD's Regional Clean Air Incentives Market, or RECLAIM).   
          Specifically, this bill:


           1) Makes findings and declarations that other options for air  
             quality improvement, including market-based incentive  
             programs, may be explored, provided those programs provide  
             greater emission reductions and ensure disadvantaged  
             populations are not disproportionately impacted. 
           2) Strikes the January 1, 1993, date for plan or plan revision  
             submission, and requires any district plan or plan revision  
             achieve equivalent emission reductions and reduced cost and  
             job impacts compared to current command and control  
             regulations and future air quality measures that would  
             otherwise have been adopted as part of the district's plan  
             for attainment.


           3) Prohibits a district from implementing any revisions to an  
             adopted market-based incentive program, unless ARB determines  
             the plan or plan revision complies with the above  
             requirements.


           4) Requires, if ARB determines a plan or plan revision does not  
             meet the specified requirements for a market-based incentive  
             program, that ARB notify the district, revise the plan or  
             plan revision so that it complies with specified  
             requirements, and approve the plan or plan revision.










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           5) Specifies that the above plan or plan revision approved by  
             ARB shall take effect immediately and is binding on the  
             district.  


           6) Requires, if ARB determines a district rule does not meet  
             the specified requirements for a market-based incentive  
             program, ARB notify the district, revise the rule so that it  
             complies with specified requirements, and adopt the rule.


           7) Specifies that the above rule approved by ARB shall take  
             effect immediately and have the same legal force and effect  
             as a district rule. 


           8) Expands the SCAQMD Governing board by three to increase the  
             membership to 16, with the additional members appointed by  
             the Governor, the Senate Committee on Rules, and the Speaker  
             of the Assembly.


           9) Requires the above appointees be representatives of a bona  
             fide nonprofit environmental justice organization that  
             advocates for clean air and pollution reductions in one or  
             more communities within the South Coast Air Basin. 


          EXISTING LAW:   


          1) Provides ARB with primary responsibility for control of  
             mobile source air pollution and provides that air pollution  
             control districts (APCDs) and air quality management  
             districts (AQMDs) have primary responsibility for controlling  
             air pollution from all sources, other than emissions from  
             mobile sources, and establishes certain powers, duties, and  
             requirements for those districts.
          2) Creates certain AQMDs, with related authority, including the  








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             SCAQMD under the Lewis-Presley Air Quality Management Act.   
             SCAQMD covers portions of Los Angeles, Orange, Riverside, and  
             San Bernardino counties within the South Coast Air Basin.


          3) Establishes the SCAQMD Governing Board, and specifies the  
             Board consist of 13 members, where one member each is  
             appointed by the Governor, Senate Rules Committee, and the  
             Speaker of the Assembly, and the other 10 members are  
             appointed by regional government entities in the South Coast  
             Air Basin, as specified.


          4) Requires SCAQMD adopt a plan to achieve and maintain the  
             state and federal ambient air quality standards for the South  
             Coast Air Basin, and requires that plan and subsequent  
             revisions contain deadlines for compliance with federal air  
             quality standards, as well as schedules and deadlines to  
             achieve the state ambient air quality standards by the  
             earliest date achievable, including by use of best available  
             retrofit control technology (BARCT).


          5) Makes findings and declarations that other options for air  
             quality improvement, including market-based incentive  
             programs, should be explored, provided those programs provide  
             equivalent emission reductions.


          6) Authorizes a district to adopt a market-based incentive  
             program as an element of the district's plan for attainment  
             of state or federal ambient air quality standards, if that  
             plan meets specified requirements. 


          7) Requires a district's plan for attainment or plan revision  
             submitted to the state prior to January 1, 1993, be designed  
             to achieve equivalent emission reductions and reduced cost  
             and job impacts compared to current command and control  








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             regulations and future air quality measures that would  
             otherwise have been adopted as part of the district's plan  
             for attainment.


          8) Prohibits a district from implementing a market-based  
             incentive program unless the state board determines the above  
             requirements are met. 


          9) Requires a district's plan or plan revision submitted on or  
             after January 1, 1993, be designed to allow the trading of  
             reductions among a variety of sources and requires ARB to  
             approve the above plan or plan revision prior to program  
             implementation and make their determination no later than 90  
             days from submission of the plan or plan revision.


          10)Requires the district, upon adoption of rules and regulations  
             to implement the market-based program, to submit the rules  
             and regulations to ARB, and requires ARB, within 90 days, to  
             determine whether the rules and regulations meet specified  
             requirements.


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee:


          1)Increased ongoing annual costs of between $400,000 (2.5  
            Personnel Year (PY)) and $900,000 (5.5 PY) for ARB to review,  
            revise, and approve plans, plan revisions, and rules for  
            compliance with applicable requirements (Air Pollution Control  
            Fund).


            This estimate is specific to the SCAQMD, the only local air  
            district with a market-based incentive program.  For the  
            ongoing, plans and plan revisions (every three years) ARB  








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            estimates requiring one new position.  The other one to four  
            estimated positions depend on the estimated the deficiency  
            rule, as well as frequency of the revisions.  


          2)Unknown, potentially significant ongoing increased costs if  
            other local air districts adopt market-based incentive  
            programs (Air Pollution Control Fund.)


          COMMENTS:  The SCAQMD board is made up of 13 members, where  
          three are appointed by the state (one each by the Senate Rules  
          Committee, the Speaker of the Assembly, and the Governor) and 10  
          are appointed by local governments.  The members of the board  
          serve four-year terms.  Currently, Dr. William Burke, appointed  
          by the Speaker of the Assembly, serves as the Chairman of the  
          SCAQMD Board. 




          Under the federal Clean Air Act, the United States Environmental  
          Protection Agency (US EPA) establishes National Ambient Air  
          Quality Standards that apply for outdoor air throughout the  
          country.  These federal standards exist for several air  
          pollutants due to their negative impact on public health above  
          specified concentrations, including ozone and particulate  
          matter, among others.  Nonattainment areas are regions that do  
          not meet the national ambient air quality standard for one of  
          those pollutants. 


          The South Coast Air Basin has some of the worst air quality in  
          the nation, and is in serious nonattainment for particulate  
          matter (<2.5 microns, or PM 2.5) and extreme nonattainment for  
          ozone.  As a result of its nonattainment status, state law  
          requires the district to adopt an Air Quality Management Plan  
          (AQMP) to achieve and maintain the state and federal ambient air  
          quality standards and submit this plan to the ARB for inclusion  








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          into the state implementation plan (SIP).  The AQMP was  
          originally adopted in 1982, and is formally reviewed every two  
          years.


          AB 1054 (Sher), Chapter 1160, Statutes of 1992, authorizes local  
          air districts to adopt a market-based incentive program as a  
          substitute for command and control regulations and future air  
          quality measures that would otherwise have been adopted as part  
          of the district's plan for attainment. 


          Pursuant to AB 1054, the SCAQMD adopted the Regional Clean Air  
          Incentives Market, or RECLAIM in 1993.  RECLAIM was designed and  
          adopted amidst an economic recession in the region with  
          widespread industry and electrical utility support.  The program  
          replaced a series of existing command and control rules and was  
          intended to allow for the most efficient emission reduction  
          projects within the sector to achieve the desired emissions  
          reductions with the lowest economic cost to industry.


          Instead of permitting individual equipment and devices, the  
          program sets individual emissions limits on nitrogen oxide (NOx)  
          and sulfur oxide (SOx) for facilities as a whole.  Credits,  
          (called RECLAIM Trading Credits, or RTCs) are provided to the  
          facility in an amount equivalent to their emissions limit  
          assigned under the program.  RECLAIM sources may choose to  
          install emission control equipment that enables them to operate  
          within their allocation, or they may exceed emissions  
          allocations as long as they acquire sufficient RTCs from other  
          sources.  In 2013, there were 275 facilities in the program,  
          including refineries, power plants, and other industrial  
          sources.


          RECLAIM has been criticized over the years for an oversupply of  
          credits, starting from the original allocation of credits where  
          the initial distribution of RTCs in 1994 exceeded actual NOx  








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          emissions by 60%.  This significant over-allocation was due in  
          part to incorrect economic growth assumptions for the region.   
          Other than a few notable exceptions, the oversupply of credits  
          has kept credit prices relatively low compared to costs  
          associated with installing pollution control equipment.  As a  
          result, the largest polluters in the region have primarily  
          chosen to comply by purchasing RTCs to exceed their NOx  
          emissions cap under the program, instead of by reducing NOx  
          through installation of readily available pollution control  
          equipment. 


          In March 2016, the US EPA disapproved portions of the 2012 AQMP  
          related to the achievement of the 2006 PM 2.5 standard, citing  
          deficiencies in the 2010 version of the RECLAIM program that  
          allowed for excess of credits and delay of pollution controls  
          for some facilities.  According to the SCAQMD Web site, district  
          staff expects that recent RECLAIM amendments last December will  
          address the disapproval and ensure compliance with federal Clean  
          Air Act requirements.


          Despite the initial excess allocation of credits, RECLAIM has  
          only been amended twice to reduce excess RTCs for NOx (called a  
          credit "shave"), once in 2004, and again in December 2015. 


          According the SCAQMD staff report, amendments to the program  
          were needed to address BARCT requirements in state law.  BARCT  
          evaluation is required by California law to assess the  
          advancement in control technology to ensure that RECLAIM  
          facilities achieve the same emission reductions that would have  
          occurred under a command-and-control approach and that emissions  
          reduction from the program fully contribute to the efforts in  
          the Basin to achieve federal ambient air quality standards. 


          Specifically, the SCAQMD staff proposal recommended amendments  
          to shave NOx RTC credits from 26.5 tons/day (tpd) to 14 tpd with  








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          a front-loaded implementation schedule.  The proposal notes that  
          the 14 tpd day value represents the emissions reductions  
          necessary to comply with state law BARCT requirements, with a  
          10% compliance margin, adjustments for projected growth, and  
          uncertainties in the BARCT analysis.  The staff proposal also  
          recommended amendments to retire RTCs from larger NOx emitting  
          facilities that have shut down to help address oversupply of  
          credits.


          During the public comment portion of the hearing, support was  
          expressed among industry representatives for a reduced shave of  
          12 tpd, a back-loaded implementation schedule, and a removal of  
          the proposal to retire credits from facility shut downs from  
          consideration at the hearing.  A motion to approve these  
          amendments, in lieu of the staff-proposed amendments, passed by  
          a vote of 7-5 at the December 4, 2015 SCAQMD Governing Board  
          meeting. 


          In January, Richard Corey, Executive Officer of ARB, wrote a  
          letter to Dr. Barry Wallerstein, the former executive officer of  
          the SCAQMD, expressing significant concerns over the December  
          SCAQMD Board vote, including whether the RECLAIM amendments meet  
          requirements in state law. 


          On February 6, 2016, Dr. Wallerstein replied to Mr. Corey's  
          letter, stating, "We believe that several of CARB staff's  
          conclusions are incorrect and do not accurately reflect the  
          public process for the referenced rulemaking."  The letter also  
          noted that SCAQMD would be submitting the December 4th RECLAIM  
          amendments to ARB for inclusion into the SIP in late February of  
          this year.  ARB is currently reviewing the amendments, which is  
          expected to be complete later this summer.


          According to the author, SCAQMD is one of the leading voices for  
          clean air and climate pollution reductions in the southern  








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          California region.  In the past six months, with its recent  
          changes in governance, it has voted to dismiss its longstanding  
          executive officer and weaken clean air regulations over its  
          expert staff's recommendations.  Outside parties have worked to  
          reduce diversity on the board and to install a majority that is  
          more concerned with polluters than with public health.  This  
          bill seeks to modernize the membership of the governing board  
          and to ensure the ARB can conduct speedy oversight of any  
          amendments to smoke stack regulations made by the new board.




          Analysis Prepared by:                                             
                          Lawrence Lingbloom / NAT. RES. / (916) 319-2092   
                                                                      FN:  
          0004080