California Air Resources Board

Prohibited Types of New Source Review Rule Changes

No air quality management district or air pollution control district may amend or revise its new source review rules or regulations to be less stringent than those that existed on December 30, 2002.

SB 288 specifically prohibits air districts from making rule changes that would exempt a source or reduce its obligations relative to what they were on December 30, 2002 for any of the following program elements:

• Requirements to obtain permits to construct prior to beginning construction
• Requirements to apply state-of-the-art air pollution control technology (called California Best Available Control Technology or BACT)
• Requirements to conduct an air quality impact analysis
• Requirements for monitoring, record-keeping and reporting that make them representative, enforceable, and publicly accessible
• Requirements for regulating any air pollutant covered by the New Source Review rules
• Requirements for public participation, including requirements for a public comment period, public notification, or a public hearing prior to issuing a permit to construct

SB 288 further details the types of rule requirement changes that are barred if they result in exempting a source or reducing its obligations for any of the program elements listed above. Those types of barred rule requirement changes are the following:

• Changes in how it is determined whether New Source Review requirements apply to a given change at a facility
• Changes in the definition of "modification" or "routine maintenance, repair or replacement"
• Changes in calculation methods, threshold, or other New Source Review procedures
• Changes to any definitions or requirements of district New Source Review rules

If the California Air Resources Board finds, after a public hearing, that a district's New Source Review rules are less stringent than those that existed on December 30, 2002, SB 288 directs the State Board to adopt the rules necessary to restore equivalent New Source Review obligations to the district.

Allowed Types of New Source Review Rule Changes

1. A district can make its New Source Review rules more stringent.

2. A district can make its New Source Review rules less stringent under the following specific circumstances:

• Replacing a rule that causes a risk to public health or safety with a new rule that provides greater public protection
• Replacing a rule that proves to be unworkable due to engineering or other technical problems with a rule that is effective
• Amending a rule to relieve a business or source category of substantial hardship. The rule amendment must be very narrowly tailored to relieve the specific hardship. Also, the district is responsible for offsetting any emission increases that result. SB 288 details criteria that the offsets must meet.
• Adopting a temporary rule that is needed to respond to an emergency to prevent or mitigate loss or damage to life, health, property, or essential services
• Rule changes are allowed for areas that attain all national ambient air quality standards under the following conditions:
• The changes will not impair maintenance of those standards
• The changes will not impair progress toward attaining State ambient air quality standards

For all of the specific circumstances listed above, the rule changes cannot exempt or reduce the obligation of a major stationary source to obtain a permit or to meet California Best Available Control Technology requirements.

In addition, the rule changes must be consistent with any environmental justice guidance approved by the California Air Resources Board. Links to relevant environmental justice guidance documents will be posted on this site at the time when any such documents may be developed.

Steps for Making Allowed New Source Review Rule Changes

For a district to make its New Source Review rules more stringent:

• No additional steps are required beyond a district's usual procedures

For a district to make its New Source Review rules less stringent under the specific circumstances allowed:

• In addition to following its usual procedures, the district board must base its decision to approve the rule changes on substantial evidence in the record
• The district must then submit the rules to the California Air Resources Board
• The California Air Resources Board must, after a public hearing, approve or deny the rule changes