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Monday, August 2, 2010, 2:50 am

Air district guidelines cloud issue

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    Non-binding standards on building projects add uncertainty, officials say

    Bay Area Air Quality Management DistrictNORTH BAY – New guidelines by the Bay Area Air Quality Management District on greenhouse gas emissions relating to construction projects have the potential to set forth clearer standards, but concerns have been raised that some provisions could increase the time and cost for the already-complex process of environmental impact reviews.

    The air quality district, which oversees regulation for the nine-county Bay Area region, in early June issued “thresholds” designed to provide local agencies and municipalities with clearer compliance on the California Environmental Quality Act. The so-called thresholds, which are already in effect, lay out specific greenhouse gas emissions and other pollution factors for industrial facilities, commercial and private developments.

    Timothy Cremin

    Timothy Cremin

    The new guidelines are not binding but could nevertheless set the standard for cash-strapped agencies and cities on how to comply because CEQA has never issued statewide rules, according to Timothy Cremin, a principal attorney with Meyers Nave Riback Silver & Wilson, a firm that has counseled numerous cities and agencies on CEQA matters and has offices in Santa Rosa, Oakland, San Francisco, Fresno, Sacramento and Los Angeles.

    “It provides some guidance,” he said. “State law requires that projects analyze greenhouse gases, but they leave local agencies the discretion. But the air district stepped in and provided some guidance on what sort of things are significant thresholds. I do think it does provide guidance on how to comply with CEQA. Agencies don’t have to follow it but probably will.”

    Despite any clarity the new guidelines might bring, Mr. Cremin and others said there are numerous concerns, many from construction industry officials who have said the standards are further muddied and the new level of permissible greenhouse gas emissions could lead to costly EIRs.

    Phillip Kalsched

    “We’re certainly going to look at it from a construction standpoint,” said Phillip Kalsched, a partner with Carle Mackie Power & Ross in Santa Rosa, who added that it is difficult to assess the full impact of the guidelines. Still, he raised some potential concerns that builders could run into for various projects.

    “Is it going to increase cost? It absolutely could,” Mr. Kalsched said. “EIR standards could become a lot stricter, and that’s just one component of it. It’s unclear, but it’s a big issue,” he added. “We’ll see how it unfolds.”

    Mr. Cremin, who specializes in environment and land use law, agreed that there are significant concerns. On the one hand, some environmentalist groups don’t think it goes far enough, while on the other those within the construction industry have raised repeated concerns.

    But, he said, cities could get around the new guidelines by spelling out their own plan to reduce greenhouse gas emissions with an area-wide environmental plan rather than on an individual basis for development projects.

    “I would agree that if you’re at about the threshold, you’d have to do an EIR. Certain size projects will have to do EIRs,” he said. He said the thresholds were low enough that they would trigger an EIR for projects that previously didn’t need one.

    Under the new guidelines, projects and facilities must emit fewer than 1,100 metric tons of greenhouse gases annually or emit 4.6 metric tons per person annually in an occupied building.

    John Bly, vice president of Northern California Engineering Contractors Association, said he thought the new guidelines were well-meaning but ill-conceived.

    “The new guidelines seem to offer the NIMBYs a chance to look at infill construction in the area and say, we need more research to be done,” he said. “I think we will have to produce more EIRs, and the outcome may be that it will add time and expense, and therefore we’re going to walk away from it and go build somewhere else.”

    According to the resolution by the air district, passed unanimously on June 2, “projects that do not comply with the CEQA thresholds of significance will normally be determined to have a significant effect on the environment for purposes of CEQA, and projects that comply with CEQA thresholds normally will be determined to have a less-than-significant effect on the environment.”

    Mr. Cremin said that, historically, when air districts set the standards on pollutants, local agencies tend to follow. He said his firm has fielded numerous calls from cities and clients looking for alternatives. Greenhouse gases are also more unique than other pollutants because such gases have a broader impact beyond one particular region.

    Mr. Kalsched and Mr. Cremin both said a clear definition on thresholds would go a long way in easing angst within the construction industry. Mr. Bly said he thought the new guidelines don’t clear up enough confusion to appease such feelings.

    “Our industry simply wants to know what the rules are, and we’ll abide by them,” he said.

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