1

BAY AREA AIR QUALITY MANAGEMENT DISTRICT

UPDATES TO NEW SOURCE REVIEW AND TITLE V PERMITTING REGULATIONS 

RESPONSES TO COMMENTS ON FINAL VERSION OF PROPOSED AMENDMENTS

October 31, 2012

Over the past year, Staff of the Bay Area Air Quality Management District have been developing 

amendments to the District’s New Source Review (NSR) and Title V permitting programs. These 

Proposed Amendments will update the District’s NSR and Title V programs to address recent regulatory 

developments. The Proposed Amendments will revise certain provisions in District Regulation 2, Rules 

1, 2, 4, and 6 in which the NSR and Title V programs are set forth. 

Air District Staff have been working with interested stakeholders during the rule development process to 

solicit their advice and input in developing the Proposed Amendments. As part of this process, District 

Staff published a number of preliminary drafts of the Proposed Amendments and asked interested 

members of the public to review and comment on them. Based on this input, District Staff prepared a 

final version of the Proposed Amendments, which Staff will present to the District’s Board of Directors 

for consideration on November 7th, 2012. District Staff received 8 additional comments on the final 

version, which are attached to this document.

1

 District Staff have reviewed all of these comments and 

have prepared responses as set forth in this document. All of the comments received are summarized 

below, along with District Staff’s responses to each one. The comments are addressed in alphabetical 

order based on the name of the commenter, as follows:

Comments of the California Council for Environmental and Economic Balance ............p. 2

Comments of the California Energy Commission.................................................................p. 6

Comments of Calpine Corporation.........................................................................................p. 7

Comments of Communities for a Better Environment......................................................p. 12

Comments of EPA Region IX..................................................................................................p. 15

Comments of Pacific Gas & Electric Company....................................................................p. 16

Comments of Valero Refining Company – California.........................................................p. 21

Comments of the Western States Petroleum Association................................................p. 24

Verbal Comments Regarding the Potential For Future Removal 

of PM2.5 Requirements under SB 288............................................................................p. 30

Air District Staff thank all of the commenters for the time and effort they put into reviewing and 

commenting on the Proposed Amendments to Regulation 2, and look forward to discussing the 

amendments and the comments received on them at the November 7th Board of Directors meeting.

 

1

All of the comment letters are also available in their entirety on the District’s homepage for the Regulation 2 

Update project at www.baaqmd.gov/Divisions/Engineering/Proposed-Reg-2-Changes.aspx. The final version of the 

Proposed Amendments, as well as earlier drafts and additional documentation including the final Staff Report and 

Environmental Impact Report, are also available there.
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COMMENTS OF THE CALIFORNIA COUNCIL FOR ENVIRONMENTAL AND ECONOMIC BALANCE

The District received the following comments from California Council for Environmental and Economic 

Balance (CCEEB). 

CCEEB Comment 1 – NAAQS Protection Requirement (Proposed Section 2-2-308) for Non-Attainment 

Pollutants: CCEEB’s first comment concerned the NAAQS Protection Requirement in proposed Section 

2-2-308. This provision requires that a new or modified source that will result in a significant net 

increase in emissions must demonstrate that the project’s emissions will not cause or contribute to a 

violation of any National Ambient Air Quality Standard (NAAQS).

2

 CCEEB stated a concern that this 

requirement would “prohibit permitting in many portions of the Bay Area.” CCEEB’s concern is that if 

existing ambient concentrations of any criteria pollutant increase so that background air quality exceeds 

the NAAQS, then any additional emissions from a new project will be contributing to that existing 

exceedance and will be prohibited. CCEEB urged the District not to adopt this provision. CCEEB 

alternatively commented that if the District does adopt it, it should not submit it to EPA for inclusion 

into the California State Implementation Plan. 

Response: CCEEB has commented on this provision a number of times during this rulemaking project, 

and District Staff have addressed CCEEB’s comments in written responses as well as during multiple inperson meetings and telephone discussions. District Staff refer to their earlier responses for a full 

explanation of the District’s evaluation of these issues.3 

To summarize briefly, this requirement will not act as a prohibition on worthwhile new development 

projects. First of all, background concentrations in the Bay Area are not above the NAAQS for any 

pollutants covered by this requirement, and so there are no “portions of the Bay Area” where the 

scenario described by CCEEB could arise. In every part of the Bay Area, there is additional “headroom” 

below the NAAQS that can accommodate some additional increases from new projects without resulting 

in a NAAQS violation. Furthermore, even if current downward emission trends were to reverse 

themselves and background concentrations were to rise above the NAAQS at some point, the proposed 

NAAQS Protection Requirement provides a number of avenues through which beneficial new projects 

can satisfy the requirement, even where background concentrations already exceed the NAAQS. These 

include the following:

● Projects can use “netting”, or showing that their net emissions increase (taking into account 

any emissions decreases at the source within the previous 5 years) will be less than

significant. 

 

2

This provision is explained in detail in the Staff Report, in Section IV.B.3.a., pp. 81-82. The final Staff Report 

(dated September 26, 2012) is available at 

www.baaqmd.gov/~/media/Files/Engineering/Proposed%20Reg%202%20Changes/Public%20Hearing/Final%20Reg

%202%20Updates%20Staff%20Report%20September%2026%202012.ashx?la=en. 

3

Staff’s Response to Comments document addressing earlier comments received on the NAAQS Protection is 

available at www.baaqmd.gov/~/media/Files/Engineering/Proposed%20Reg%202%20Changes/2nd%20Draft%. 

Staff’s response to CCEEB’s earlier comments on the NAAQS Protection Requirement is on pp. 9-10 of that 

document. 
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● For projects that will result in a significant increase even after netting is applied, these 

projects can comply with the requirement by showing that their impacts on ambient 

concentrations will not exceed the “Significant Impact Level” (SIL). The requirement will use 

the same procedures as EPA’s “Prevention of Significant Deterioration” (PSD) modeling, 

which establish that emissions below the SIL are de minimis and are not treated as causing 

or contributing to any NAAQS exceedance.4 If a project can show that its impacts are below 

this de minimis level, they will satisfy the NAAQS Protection Requirement. CCEEB’s

comment appears to suggest that projects with impacts below the SIL will still be prohibited, 

but this is not the case. Proposed Section 2-2-308 explicitly states that the requirement will 

be implemented using the same PSD modeling provisions that apply for the PSD air quality 

impacts analysis requirement in Section 2-2-305, and these provisions incorporate EPA’s de 

minimis SIL approach. 

● Even where a project cannot show that its impacts are below the SIL, the project would still 

be able to comply by obtaining local emission reductions to counteract its contributions to 

any NAAQS exceedance. The NAAQS Protection Requirement is designed to ensure that 

significant new emissions increases do not cause air quality to violate the NAAQS, and so a 

project with new emissions that will cause a violation can comply with the requirement by 

shutting down or curtailing existing emissions to counteract the new emissions and ensure 

that the NAAQS are not violated. 

All of these compliance avenues will be available to proposed projects to satisfy proposed Section 2-

2-308. Thus, even if existing air quality were to worsen such that background concentrations exceed 

the NAAQS – which District Staff do not expect to happen, but is the scenario that CCEEB appears to 

be concerned about – beneficial new projects could still be permitted under these approaches. 

It is true that if a proposed will still end up causing a NAAQS violation (or making a significant 

contribution to an existing NAAQS violation) after exhausting all of these compliance options, then the 

source will not be able to get a permit under this provision. But keeping new and modified sources from

causing violations of the health-based NAAQS is precisely the purpose of the NSR permitting program.

District Staff do not believe that allowing new projects that will cause or substantially contribute to 

violations of the NAAQS would be an appropriate policy outcome, and do not believe that CCEEB or its 

members would want to be responsible for causing or significantly contributing to NAAQS violations 

either. Under this proposed requirement, beneficial projects that will not cause or contribute to NAAQS

violations will be able to comply with the requirement and be permitted, and projects that will cause or 

significantly contribute to NAAQS violations will be prohibited (or will have to be modified to make sure 

that NAAQS violations will be avoided). As such, the proposed requirement will support the policy goals 

that CCEEB cites in its comment – to “provide flexibility for future growth and development” – and at 

 

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The NAAQS Protection Requirement will use the same procedures as for EPA’s PSD program. Under these 

procedures, if a project will make a slight incremental contribution to an exceedance of the NAAQS, the project is 

not considered to “cause or contribute” to the exceedance for PSD permitting purposes if the contribution is less 

than the de minimis level represented by the SIL. This same rule will apply to non-attainment pollutants under the 

proposed NAAQS Protection Requirement. 
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the same time support the important policy goal of ensuring that the air we breathe in the Bay Area 

complies with the NAAQS. 

Finally, with respect to submitting this requirement to EPA for inclusion in the State Implementation 

Plan (SIP), District Staff are continuing to consider this issue as of the date of publication of this 

Response to Comments document. District Staff will provide a further response at a later date.

Whether or not the provision is included in the SIP will not make any substantive difference in how the 

provision functions or what it will require permit applicants to demonstrate in order to obtain a permit.

CCEEB Comment 2 – Definition of “Modification”: CCEEB objected to adding the “federal backstop” 

provision in Section 2-2-234.2.

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 CCEEB stated that it disagrees with EPA that adding this provision is 

required under the federal NSR rules. CCEEB stated that it believes that the District’s existing 

modification test is at least as stringent as what is required by those rules. CCEEB stated that adding the 

federal backstop is therefore not legally required and would add unnecessary complexity to NSR 

applicability determinations. 

Response: CCEEB has commented on this issue as well in earlier communications, and District Staff have 

discussed it with CCEEB in writing and verbally. District Staff refer to their earlier responses for a full 

explanation of the District’s evaluation of these issues.6 In summary, EPA Region IX Staff have informed 

the District in clear terms that EPA will no longer accept the District’s current “modification” definition, 

and that the federal backstop provision is required. EPA Region IX Staff have indicated that their earlier 

approval of the District’s current definition was in error, and that the District must revise it in order to 

continue to have an approved NSR program. 

CCEEB Comment 3 – “Need for Greater Understanding to Ease Permitting Concerns”: CCEEB stated a 

concern about “uncertainty” in how NSR permitting will be implemented under the Proposed 

Amendments. CCEEB also stated a concern about whether District Staff will be given the proper training 

to ensure that they will implement NSR permitting under the Proposed Amendments “consistently, 

accurately, and in an efficient manner.” CCEEB suggested two actions in this regard: (1) CCEEB 

requested that District Staff hold a meeting to allow CCEEB’s members who are concerned about how 

NSR permitting will be implemented to “walk through permitting examples with District Staff” in order 

to understand how the NSR permitting process will work under the Proposed Amendments; and (2) 

CCEEB requested that District Staff use the time between rule adoption and final EPA approval to 

evaluate whether any additional clarifications to the rule language are needed, and to seek further 

amendment if any such needs are identified.

Response: As District Staff have explained in discussing this issue with stakeholders and in responses to 

prior comments, the clarifications being made in the Proposed Amendments will not change the way 

that NSR permitting is implemented under the District’s regulations (except for the specific revisions 

 

5

The “federal backstop” provision is described in detail in Section IV.A.1.b. of the Staff Report, pp. 31-34.

6

District Staff’s responses to CCEEB’s earlier written comments on this issue are on p. 10 of the October 10, 2012 

response to comments document, which is available at 

www.baaqmd.gov/~/media/Files/Engineering/Proposed%20Reg%202%20Changes/2nd%20Draft%. 
5

discussed in the Staff Report, such as where new PM2.5 requirements are being added, etc.). District 

Staff welcome the opportunity to discuss with stakeholders how NSR permitting works – both currently 

under the existing procedures that are not being changed, and under the new provisions that are being 

added or amended – and have already contacted CCEEB to set up such a meeting. District Staff will 

discuss how the requirements work at that meeting, and will be happy to walk through examples that 

CCEEB or its members want to discuss. District Staff also envision additional meetings of this type 

continuing into the future as part of an effort to ensure that everyone involved – including District Staff, 

facility representatives, consultants, and members of the public – are as fully informed and educated as 

possible into how the District’s NSR permitting program works. District Staff are also committed to 

continuing to evaluate Regulation 2 going forward to see where and how it can be improved further. If 

there are areas where additional clarification is necessary, District Staff will discuss these with affected 

stakeholders, develop revised regulatory language to address them, and propose the revisions to the 

Board of Directors for further action prior to EPA’s final approval.
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COMMENTS OF CALIFORNIA ENERGY COMMISSION 

The District received a letter from the California Energy Commission (CEC) supporting the proposal to 

adopt “Prevention of Significant Deterioration” (PSD) permitting provisions for approval by EPA.

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 The 

CEC stated that the current situation, in which most provisions of the NSR program are implemented by 

the District but the PSD element is administered federally under EPA’s permitting provisions, “has 

imposed unnecessary burdens on permit applicants, including applicants for new electric generating 

power plants, by imposing regulatory expenses, financial uncertainty, and sometimes years of delay to 

complete the federal review process.” The CEC continued that:

Adoption of the proposed rules regarding PSD will result in an integrated state air 

permit, thereby avoiding the redundancy and inefficiency involved in the separate 

federal permit process. The proposed new rules thus promote government efficiency 

and regulatory certain for permit applicants.

The CEC supported the proposed adoption of the PSD provisions for these reasons. 

District Staff acknowledge and appreciate the CEC’s support and agree with the CEC’s stated reasoning. 

District Staff have proposed adopting a District PSD program for EPA approval based on these very same 

considerations. District Staff look forward to further coordination with the CEC on air quality issues 

relating to thermal power plants subject to the CEC’s licensing authority. 

 

7

The adoption of these PSD provisions is discussed in Sections III.C. (p. 23) and IV.B.2. (pp. 71-80) of the Staff 

Report. 
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COMMENTS OF CALPINE CORPORATION 

The District received the following comments from Calpine Corporation (Calpine).

Calpine Comment I – Support for Adopting “Prevention of Significant Deterioration” Requirements: In 

Section I of Calpine’s comment letter, the company stated that it “strongly endorses the District’s 

proposal to move forward with adoption of amendments to Regulation 2 that can ultimately be 

approved by EPA as part of the California State Implementation Plan (‘SIP’) pursuant to 40 C.F.R. 

§ 51.166.” Calpine stated that EPA approval of a District PSD program will “avoid unnecessarily 

duplicative and lengthy processes associated with issuance of separate permits pursuant to both the 

District’s rules and 40 C.F.R. § 52.21.”

Response: Air District Staff appreciate this support for obtaining EPA approval of District PSD permitting 

regulations. As stated above in connection with the CEC’s comment on this issue, District Staff agree 

that having a single set of NSR permitting regulations for facilities in the Bay Area, covering both the PSD 

and Non-Attainment NSR requirements of the NSR Program, will simplify and streamline the permitting 

process. 

Calpine Comment II – NAAQS Protection Requirement: In Section II of the comment letter, Calpine 

expressed a concern about the NAAQS Protection Requirement in proposed Section 2-2-308.8Calpine 

stated that the District should not adopt this requirement with respect to PM2.5 because of “potential 

difficulties applicants would experience demonstrating compliance with the 24-hour PM2.5 NAAQS.”

Calpine’s concerns about demonstrating compliance with the 24-hour PM2.5 NAAQS included the 

following:

• Calpine stated that EPA’s federal NSR regulations do not require a NAAQS compliance 

demonstration for non-attainment pollutants such as PM2.5, and EPA has never previously 

required it in any permitting agency’s NSR program. Calpine noted that EPA Region IX Staff have

said that a NAAQS compliance demonstration “could” be used to demonstrate compliance with 

the federal NSR requirements of 40 C.F.R. Sections 51.160(a) and 51.160(b), but Calpine stated 

that the NAAQS compliance modeling demonstration is not the only means of doing so and is 

not required in order to satisfy those requirements. 

• Calpine commented that Section 2-2-308 “lacks regulatory coherence” because it states that the 

NAAQS compliance demonstration under Section 2-2-308 will be made using the same modeling 

procedures that are used for the NAAQS compliance demonstration under the PSD 

requirements. Calpine suggested that this creates an inconsistency because the PSD 

requirements include an exemption for non-attainment pollutants such as PM2.5. Calpine 

commented that this exemption shows that the PSD NAAQS compliance analysis methodologies 

are not appropriate for determining whether a project will cause or contribute to a NAAQS 

exceedance for non-attainment pollutants. 

 

8

The NAAQS Protection Requirement is discussed in detail in Section IV.B.3.a. of the Staff Report, pp. 81-82.
8

• Calpine stated that requiring projects to demonstrate that they will not cause or contribute to a 

NAAQS violation is not necessary to protect the NAAQS. Calpine stated that emission levels are 

coming down across the Bay Area, and that these reductions will ensure that the region 

complies with the PM2.5 NAAQS without the need for any demonstration by individual projects. 

• Calpine stated that “it may be extremely difficult, if not impossible, in certain locations 

throughout the Bay Area to demonstrate that a source will not cause or contribute to an 

exceedance of the 24-hour PM2.5 NAAQS.” Calpine cited two factors that it claims could create 

such difficulty. First, Calpine stated that EPA is considering requiring PM2.5 precursors to be 

included in the PSD modeling analysis (although it has not required precursors to be included to 

date) and no adequate modeling tools for precursors exist at this time. Calpine stated that if 

EPA starts requiring precursor modeling for PM2.5, making such a modeling demonstration could 

be impossible without the necessary modeling tools. Second, Calpine stated that in certain 

areas background PM2.5 concentrations may be above the NAAQS, and in those areas it would 

be impossible to made a demonstration that a new project would not be causing or contributing 

to an NAAQS exceedance. Calpine stated that the requirement would be a de facto construction 

moratorium in such areas, and that District Staff should prepare an evaluation describing where 

such areas might be located. Calpine acknowledged that in areas where background 

concentrations exceed the NAAQS, a project can still satisfy the NAAQS Protection Requirement 

in proposed Section 2-2-308 by showing that its PM2.5 emissions will not cause an increase in 

pollution levels above the “Significant Impact Level”, or “SIL”. But Calpine stated that the PM2.5

SIL is set so low that most sources with significant PM2.5 emissions will result in at least one 

exceedance of the SIL. Calpine also noted that there is ongoing litigation regarding EPA’s 

established PM2.5 SILs, and that the petitioner in that litigation claims that reliance on SILs as de 

minimis impact levels for purposes of PSD modeling should not be allowed at all. Calpine stated 

that given the uncertainty regarding (i) whether EPA will require PM2.5 precursor modeling in 

order to demonstrate compliance with the NAAQS and (ii) the continued use of EPA’s PM2.5 SILs, 

the NAAQS compliance demonstration requirement in proposed Section 2-2-308 “could act as a 

bar to new construction throughout portions of the Bay Area where the NAAQS is already or 

nearly exceeded, regardless of the de minimis contribution a source would make to such 

exceedances.” 

Response: Calpine has raised similar concerns regarding the NAAQS Compliance Requirement in 

proposed Section 2-2-308 in previous comments, as have other commenters, and District Staff have 

addressed them in written responses as well as verbally. District Staff refer to those earlier responses 

for a further explanation of the District’s evaluation of these issues.9 

With respect to the specific concerns cited by Calpine here, District Staff have considered these issues as 

follows. 

 

9

District Staff’s responses to Calpine’s earlier written comments on this issue are on pp. 2-4 of the October 10, 

2012 response to comments document, which is available at 

www.baaqmd.gov/~/media/Files/Engineering/Proposed%20Reg%202%20Changes/2nd%20Draft%.
9

With respect to whether the proposed NAAQS Protection Requirement is required by 40 C.F.R. Sections 

51.160(a) and (b), the proposal to adopt this requirement is not based on an interpretation that it is 

required by EPA’s federal NSR program requirements. As District Staff explained in response to 

Calpine’s comment on this point on the second draft of the Proposed Amendments, Staff are proposing 

this requirement because it is important from an air quality and public health perspective to ensure that 

the air we breathe does not contain unhealthy levels of PM2.5 (or other criteria pollutants) in excess of 

the health-protective maximum standards established in the NAAQS – not because District Staff believe 

that it is legally required. EPA Region IX Staff have stated that they would like to see the District adopt 

this requirement, and District Staff have acknowledged that including the requirement will make EPA 

Region IX staff more comfortable in approving the District’s program. But the fundamental basis for the

requirement with respect to PM2.5 is to ensure that new and modified sources do not push ambient 

PM2.5 concentrations over the NAAQS, which would hamper the District’s efforts to attain and maintain 

attainment and would subject people to breathing unhealthy levels of harmful PM2.5. Permitting new 

projects that would result in such an outcome would undermine all of the work that the District has 

been doing to bring the Bay Area into compliance with the PM2.5 NAAQS in recent years, and is 

something that District Staff believe should be avoided.

With respect to the fact that the PSD program modeling requirements apply to attainment pollutants 

only and not to non-attainment pollutants, this is simply a reflection of how the PSD program works. It 

is not a suggestion that these modeling requirements cannot be used for non-attainment pollutants. 

Under the federal major NSR program, attainment pollutants are governed by the PSD requirements and 

non-attainment pollutants are governed by the Non-Attainment NSR requirements, and EPA therefore 

makes a clear distinction between what provisions apply to what category of pollutants. This is the 

reason why the PSD requirements contain an exemption for non-attainment pollutants in the C.F.R. 

section cited in Calpine’s comments (40 C.F.R. Section 52.21(i)). The exemption is not an indication that 

the substantive requirements for PSD modeling – those contained in EPA’s “Guideline on Air Quality 

Models” in Appendix W of 40 C.F.R. Part 51 (“Appendix W”) – are somehow inappropriate for modeling 

non-attainment pollutants. Indeed, EPA requires these exact same Appendix W modeling requirements 

for non-attainment pollutants as well as attainment pollutants under 40 C.F.R. Section 51.160(f). That 

provision applies generally to all NSR pollutants, both attainment and non-attainment, and it requires

the exact same Appendix W modeling requirements for non-attainment pollutants as are required for 

PSD modeling.

10

 Moreover, in the context of modeling PM2.5 impacts specifically, Calpine knows full well 

from its own experience that these Appendix W modeling requirements are appropriate for PM2.5

modeling, regardless of whether PM2.5 is an attainment pollutant or a non-attainment pollutant. As 

Calpine notes in the introductory section of its comment letter, Calpine obtained a permit for the Russell 

City Energy Center. That permit application included a demonstration that the facility will not cause or 

contribute to an exceedance of the 24-hour PM2.5 NAAQS, which was made in accordance with Appendix 

W modeling guidelines. And that demonstration was finalized, and the permit issued, at a time when

PM2.5 was designated as a non-attainment pollutant. Calpine’s own experience in this regard therefore 

 

10 Compare 40 C.F.R. § 51.160(f)(1)&(2) with 40 C.F.R. § 51.166(l)(1)&(2). The language about the modeling 

procedures that need to be used is identical.
10

belies its assertion that it would be inappropriate to “incorporate[e] by reference the methodologies 

developed and utilized to demonstrate that a proposed source would not cause or contribute to a 

violation of the NAAQS for attainment pollutants.” Calpine’s own modeling demonstration for PM2.5

impacts from the Russell City facility shows that these methodologies are appropriate for modeling 

PM2.5, even though PM2.5 is designated as a non-attainment pollutant. 

With respect to the fact that the District’s PM regulatory mechanisms have had success in bringing down 

PM levels and Calpine’s argument that the NAAQS Protection Requirement is unnecessary given the 

other applicable regulatory requirements and the downward emissions trend, District Staff disagree that 

these successes make the NAAQS Protection Requirement unnecessary. District Staff are proud of the 

District’s achievements in reducing PM emissions and that ambient PM levels in the Bay Area are coming

down, and agree with Calpine that the District’s regulatory efforts in this area are robust and effective at 

reducing emissions. But that does not mean that a proposed new or modified source could never have 

an impact that caused PM2.5 concentrations to go above the NAAQS, notwithstanding all of the 

requirements imposed by District regulations. Allowing such a project to go forward, and to have all of 

the District’s comprehensive efforts to ensure compliance with the NAAQS undermined and the Bay 

Area’s clean data record jeopardized, would not be in the public interest. District Staff therefore

disagree that it is unnecessary to require new projects with significant PM2.5 emissions increases to 

demonstrate that they will comply with the NAAQS. To the contrary, District Staff believe that ensuring 

that our air quality continues to comply with the PM2.5 NAAQS is highly important, and the NAAQS 

Protection Requirement will add an important and necessary safeguard to help achieve that goal. 

Finally, with respect to Calpine’s claim that there may be some locations where it would not be possible 

for a source to demonstrate that it will not be causing or contributing to a NAAQS exceedance, as 

District Staff have explained on a number of occasions and in response to previous comments, this is not 

the case. Background PM2.5 concentrations are within the NAAQS at all monitored locations within the 

Bay Area, as demonstrated in the District’s Clean Data Finding, and so there are no locations where the 

situation that Calpine is worried about exists – i.e., where background concentrations already exceed 

the NAAQS. And even if background concentrations were to exceed the NAAQS, there are still a number 

of compliance mechanisms through which a project can satisfy the NAAQS Protection Requirement and 

demonstrate that it will not significantly contribute to such an exceedance.11 

Calpine also expresses concern about one of these compliance mechanisms, demonstrating that the 

project’s incremental contribution to any NAAQS exceedance will be de minimis because it is below the 

SIL. Calpine states that (i) the 24-hour SIL for PM2.5 is very low and may be difficult to comply with, and 

also (ii) that EPA’s PM2.5 SILs are currently in litigation. With respect to the 24-hour SIL for PM2.5, 

although it is set (appropriately) at a conservative and health-protective level, it is still possible for 

beneficial new projects to use this SIL to show that they will not be significantly contributing to a NAAQS 

exceedance. Calpine used this SIL itself in demonstrating that its Russell City power plant referred to 

above would not significantly contribute to a NAAQS violation, showing that the plant’s contribution 

 

11 District Staff outlined these compliance avenues above in response to CCEEB comment no. 1, on pp. 2-3 of this 

document.
11

would be below the SIL and therefore de minimis even at locations where there could be PM2.5 NAAQS 

exceedances. EPA set the SILs at appropriate levels for the reasons the agency explained when it 

adopted the SILs, and contrary to Calpine’s concerns the SILs can be used to demonstrate that a facility 

will not make a significant contribution to an existing NAAQS violation to the extent one may occur. And 

with respect to the ongoing litigation regarding EPA’s PM2.5 SILs, it is true that EPA may end up having to 

revisit these SILs and they may ultimately end up being revised. But that does not mean that SILs cannot 

be used in the interim, and it does not mean that SILs are likely to be invalidated altogether as a means 

of demonstrating that a facility will not significantly contribute to a NAAQS violation. The principle that 

NSR requirements contain implicit exemptions for de minimis situations such as impacts below a SIL has 

been firmly established by the D.C. Circuit,12 and it is unlikely that it will be rejected by the courts 

despite the arguments of the petitioners in the current litigation over the PM2.5 SILs. And with respect 

to Calpine’s concern about EPA potentially requiring PM2.5 precursors to be included under its Appendix 

W modeling procedures, District Staff do not believe that EPA will require such modeling if there are no 

available tools in order to do so, as Calpine suggests.13 District Staff will continue to monitor EPA’s 

consideration of PM2.5 precursors in this context, but as a general matter Staff disagree that the fact that 

EPA is considering this issue presents a sound reason to postpone adopting the NAAQS Protection 

Requirement for PM2.5.

 

12 See Alabama Power v. Costle, 636 F.2d 323 (D.C. Cir. 1979).

13 If EPA requires PM2.5 precursors to be included in NAAQS compliance modeling, then this requirement will apply 

for PSD permitting in PM2.5 attainment areas throughout the country. District Staff find it unlikely that EPA will 

adopt such a requirement unless there are adequate tools available in order to implement the requirement. 
12

COMMENTS OF COMMUNITIES FOR A BETTER ENVIRONMENT

The District received the following comments from Communities for a Better Environment (CBE).

CBE Comment I. – Reference to CBE’s Previous Comments: CBE noted that it provided comments on 

the first draft of the Proposed Amendments. CBE stated that it was “disappointed” that the final version 

of the Proposed Amendments did not incorporate the suggestions made in those comments. 

Response: The final version of the Proposed Amendments does incorporate CBE’s suggestions where 

appropriate. District Staff provided a written response to CBE’s comments on the first draft, as well as 

to all of the other comments received on the first draft, in its May 25, 2012, Background Discussion 

document.14 District Staff explained that in some cases they had revised the Proposed Amendments to 

incorporate the suggestions that were received, and in other cases explained that they had declined to 

do so because they disagreed that the suggestions were appropriate for various reasons. District Staff 

incorporated several specific suggestions made by CBE, including the suggestion not to allow interpollutant trading for compliance with the offset requirements for PM2.5 precursors (see Comment I.B.2., 

pp. 3-4 of the Background Discussion document), and the suggestion to conduct a full CEQA 

Environmental Impact Analysis to ensure that the Proposed Amendments will not have any significant 

adverse impacts on the environment (see Comment V., p. 79 of the Background Discussion document). 

District Staff appreciated CBE’s input on these points. CBE’s suggestions were good ones and they 

helped make the final version of the Proposed Amendments stronger and more health-protective.

CBE Comment II. – Applying BACT on a “Pollutant-Specific Basis”: CBE stated that the District should 

not apply its Best Available Control Technology (BACT) requirement on a “pollutant-specific basis”. 

CBE’s comment concerns the new definition of “pollutant-specific basis” in proposed Section 2-2-222, 

and also the provision in proposed Section 2-2-301 that states that the District BACT requirement 

imposed under that section applies on a pollutant-specific basis. This means that BACT is required only 

for pollutants that a source emits in an amount of 10 pounds per day or more (and for modified sources, 

for modifications that will involve an increase in such pollutants). CBE objected to requiring BACT on a 

pollutant-specific basis. CBE commented that if a source emits any pollutant in an amount of 10 pounds 

per day or more, then it should require BACT for all pollutants emitted by that source – even for other 

pollutants emitted in an amount of less than 10 pounds per day. CBE stated that these emissions should 

be subject to the BACT requirement to address their potential health impacts. CBE stated that applying 

BACT on a pollutant-specific basis would be a relaxation from the District’s current NSR rules in violation 

of SB 288.15 CBE further stated that “[t]he proposed amendments . . . are vague as to whether they will 

 

14 See Background Discussion for Second Draft of Proposed Amendments and Responses to Comments Received on 

First Draft (May 25, 2012), available at 

www.baaqmd.gov/~/media/Files/Engineering/Proposed%20Reg%202%20Changes/2nd%20Draft/Background%20R

eport%20for%20Second%20Draft%20Amendments%20and%20Response%20to%20Comments%20on%20First%20

Draft.ashx?la=en. 

15 SB 288, the Protect California Air Act of 2003 (codified in Health & Safety Code Section 42500 et seq.), is a state 

law that prohibits any California air district from relaxing any NSR requirements that were in effect as of the end of 

2002. SB 288 is discussed in detail in Section II.B.2.b.ii. of the Staff Report (p. 18). 
13

allow the correct analysis of precursors. . . At a minimum, The District should cure the ambiguity of 

Section 2-2-222 and formally acknowledge the potential increased PM emissions from indirect 

precursors.” CBE also stated that the District should not rely on the requirements of CEQA as a “solution 

to the Pollutant-Specific Basis problem . . . .”

Response: BACT has always been applied on a pollutant-specific basis. The Proposed Amendments 

simply state this principle explicitly in Section 2-2-301 – and provide a definition of exactly what that 

term means in Section 2-2-222 – in order to ensure that the rules are clear on this point. This is an 

explicit codification of the way the District’s existing NSR rules work, not a relaxation of the rules, and so 

it does not implicate SB 288. Moreover, this rule reflects the long-standing policy position established 

by the legislature in Health & Safety Code Section 40919(a)(2), and reflected in the District’s NSR rules, 

that 10 pounds per day is the appropriate threshold for the BACT requirement in the Bay Area. District 

Staff have not found any reason to revisit this policy choice in the current rulemaking. This 10 poundsper-day level sets a rigorous and appropriate threshold for implementing the BACT requirement. For 

PM2.5 in particular – the focus of CBE’s comments – this threshold is far more stringent than what the 

District is required to do under the federal NSR requirements. The federal Clean Air Act only requires 

the District to impose BACT for sources with PM2.5 emissions of 100 tons per year. The District’s 

proposed threshold of 10 pounds per day is far more stringent. With respect to PM2.5 precursors, the 

District’s BACT requirement under proposed Section 2-2-301 will apply equally to PM2.5 precursors as it 

does to direct PM2.5 emissions. District Staff agree with CBE that PM2.5 precursors are important to take 

into account in the District’s regulatory responses to Bay Area’s PM2.5 air quality challenges, and the 

Proposed Amendments do just that. There is no vagueness or ambiguity on this point in the BACT 

requirement in proposed Section 2-2-301 (or in the PM2.5 offsets requirements in proposed Section 2-2-

303, which CBE’s comment also mentions in passing). They apply to PM2.5 precursor emissions just as 

they do to direct PM2.5 emissions. Finally, the District’s NSR rules under the Proposed Amendments do 

not “rely” on CEQA in any manner. CEQA is an independent legal requirement, and it functions as an 

additional protection to identify and avoid significant environmental impacts. The District’s NSR 

permitting requirements – including the BACT requirement – function independently to protect air 

quality by limiting emissions of air pollutants from sources that are subject to them. As noted above, 

the District’s current BACT threshold of 10 pounds per day, applied on a pollutant-specific basis, reflects 

a long-standing policy determination of the appropriate manner for addressing such emissions. 

CBE Comment III. – Applicability of NSR Permitting to Rebuild of Crude Unit at Chevron Richmond 

Refinery: CBE commented that the District has stated that it will require Chevron to use BACT in the 

rebuild of its crude unit at its refinery in Richmond, CA. CBE stated that implementing BACT for this 

project will ensure the safety of the community by requiring the most protective technology. CBE stated 

that it looks forward to participating in the permitting process, and providing input on the application of 

BACT. 

Response: District Staff are currently reviewing Chevron’s plans to rebuild the crude unit at the 

Richmond refinery, and will evaluate the applicability of District permitting requirements as part of that 

review. That review has not been completed yet, and so District Staff are not in a position at this time to 

reach any conclusions about specific permitting requirements and how they may apply in this situation. 
14

As a general matter, however, District Staff agree that the District BACT requirement requires the most 

protective technology and helps to protect public health and to ensure that the air is safe to breathe in 

all communities throughout the Bay Area. District Staff encourage CBE and all members of the public to 

participate in the District permitting process for regulated facilities in the Bay Area and to provide input 

on BACT determinations. 
15

COMMENTS OF EPA REGION IX

EPA Region IX Staff submitted a letter stating that they are continuing to review the responses that 

District Staff provided on EPA Region IX Staff’s previous comments on earlier drafts of the Proposed 

Amendments. EPA Region IX Staff stated that the responses appear to address most of the issues raised 

in those comments, but that regional staff were considering a few remaining issues and consulting with 

EPA Headquarters staff. EPA Region IX Staff also stated that they were continuing to review the 

proposed amendments to the emissions banking procedures in Regulation 2, Rule 4, regarding 

specifying the amount of condensable PM emissions included in existing banked PM credits. EPA Region 

IX Staff encouraged District Staff to work with them further before adopting this element of the 

Proposed Amendments.

District Staff believe that they have addressed all of the concerns that EPA Region IX Staff have raised 

during this rulemaking process thus far, based on the responses provided to EPA Region IX Staff’s earlier 

comments. District Staff will be happy to provide any additional information that EPA Region IX Staff 

may need on any of those issues. Regarding the provisions for specifying the amount of condensable 

emissions in existing PM credits, District Staff have reviewed all of the NSR requirements that may apply 

to these provisions and are confident that the Proposed Amendments satisfy them. EPA Region IX Staff 

have arranged for a conference call with District Staff in order to discuss these issues in more detail. 
16

COMMENTS OF PACIFIC GAS & ELECTRIC CO.

Pacific Gas & Electric Co. (PG&E) submitted a comment objecting to the proposed NAAQS Protection 

Requirement in proposed Section 2-2-308.16 PG&E stated that the District should not adopt this 

requirement for the following reasons.

● PG&E noted that the NAAQS Protection Requirement is a new development that District Staff 

did not list as one of its goals when it initially began this rulemaking project. PG&E suggested 

that the impact of adding this requirement “has not been adequately analyzed” because it was 

not identified when District Staff first began discussing the Regulation 2 update project with the 

public in January and February of 2012.

Response: The first draft of the Proposed Amendments published in January of 2012 did not include the 

NAAQS Protection Requirement, as PG&E correctly notes. But comments from members of the public 

and further consideration by District Staff soon made clear the importance of adding such a requirement 

to ensure that new projects do not jeopardize the Bay Area’s compliance with the NAAQS, especially for 

PM2.5 emissions. As the need for this requirement became clear, District Staff developed the proposed

Section 2-2-308 and added it in the second draft of the proposed amendments. District Staff published 

this second draft – including the Section 2-2-308 NAAQS Protection Requirement – in May of 2012, 

along with a written staff analysis discussing the basis for it and how it would work.17 District Staff also 

discussed the new requirement with the technical working group that was convened for this rulemaking 

project at a public meeting on June 7, 2012. District Staff also solicited written comment on this new 

requirement (as well as on all other aspects of the second draft). In response, District Staff received a 

number of comments from interested parties raising concerns about the requirement (many of them 

similar to PG&E’s here). District Staff carefully considered all of these comments, including the 

objections raised here by PG&E. In some cases District Staff agreed and made revisions to the proposed 

Section 2-2-308, and in other cases Staff disagreed. Based on this input, District Staff developed the 

final version of Section 2-2-308 as set forth in the Proposed Amendments. In connection with the final 

proposal, District Staff provided a detailed explanation of the basis for Section 2-2-308 in the Staff 

Report. (See Final Staff Report, Section IV.B.3.a., pp. 81-86.) District Staff also provided written 

responses to all of the comments it received regarding this issue, explaining either how Staff had agreed 

with the comments and revised the proposal accordingly, or that Staff had disagreed along with an 

explanation of the reasons why.

18

 District Staff have also held a number of in-person meetings with 

members of the regulated community – including representatives from PG&E – to discuss the new 

requirement, the basis for it, how it will work in practice, and what the potential impacts may be on 

beneficial new projects. For all of these reasons, District Staff disagree that the requirement “has not 

 

16 The proposed NAAQS Protection Requirement is explained in detail in the Staff Report, in Section IV.B.3.a., pp. 

81-82.

17 May 25, 2012, Background Discussion Document, Section I.C., pp. 6-7.

18 See October 10, 2012, response to comments document, available at 

www.baaqmd.gov/~/media/Files/Engineering/Proposed%20Reg%202%20Changes/2nd%20Draft%.
17

been adequately analyzed” simply because it was not included in the first draft of the proposed 

amendments published nearly a year ago at the very beginning of this rule development project. To the 

contrary, the requirement has been analyzed in great depth, and District Staff have concluded that it is 

an appropriate and necessary safeguard to ensure that the NAAQS are protected while still allowing 

beneficial new projects to go forward as discussed in all of the documentation that District Staff have 

published on this issue to date. 

● PG&E stated that the NAAQS Protection Requirement would prohibit construction of beneficial 

projects in certain areas, and “would likely push construction of new industrial facilities into 

more pristine areas of the region . . . .” PG&E gave a hypothetical example of a new plant being 

considered as a replacement of an older, less-efficient existing plant 10 miles away. PG&E 

stated that the new plant would cause localized increases in PM2.5 concentrations, and that if 

the existing PM2.5 levels at the location of the new plant were already above the NAAQS then 

the new plant would not be able to be built because it would be contributing to an existing 

NAAQS exceedance. PG&E stated that such a plant would be permitted in other parts of the 

country under other regions’ NSR programs.

Response: District Staff have received a number of comments suggesting that the proposed NAAQS 

Protection Requirement will create an effective construction moratorium that will prohibit beneficial 

new projects. District Staff refer to their earlier responses for a full explanation of the District’s 

evaluation of these issues.19 In short, the proposed NAAQS Protection Requirement will not prohibit 

beneficial new projects because it provides a number of compliance options that will allow projects to 

demonstrate compliance and obtain permits, as summarized above in response to CCEEB comment no. 

1. 

With respect to PG&E’s hypothetical example, District Staff would respond with a very similar real-world 

example that proves the contrary – that such projects can actually be permitted and built even with a 

NAAQS Protection Requirement in place. The Russell City Energy Center, addressed above in response 

to Calpine’s comment no. 2, was a power plant with significant PM2.5 emissions similar to a number of

PG&E power plants. Calpine proposed this new plant to provide generating capacity that would take the 

place of capacity provided by older, less-efficient equipment, as in PG&E’s example. Calpine made a 

demonstration that the new plant would not cause or contribute to any exceedance of the PM2.5

NAAQS, using the exact same procedures and requirements that will apply under proposed Section 2-2-

308. This example shows that PG&E’s concern is misplaced. The Air District can provide for beneficial 

new plants to be permitted and built in the Bay Area, while at the same time ensuring that we will 

continue to have clean air that complies with the NAAQS. 

Finally, with respect to PG&E’s reference to how such projects would be treated in other regions around 

the country, if a proposed project really is going to cause a violation of the PM2.5 NAAQS and throw a 

region out of attainment, and the permitting agency nonetheless allows such a project to be built, that 

 

19 These issues are addressed in CCEEB’s comment no. 1 and Calpine’s comment no. 2 above and in WSPA’s 

comment no. 3 below, as well as in the Staff Report and in October 10, 2012, response to comments document.
18

region will suffer adverse consequences through the added regulatory burdens (not to mention the 

public health burdens) that come with non-attainment status. District Staff question whether any other 

region around the country would really prefer such an outcome. But regardless of what any other 

region may or may not prefer, District Staff do not believe that it would be appropriate to approve such 

projects for the Bay Area where they are going to jeopardize the Bay Area’s attainment and 

maintenance of the NAAQS. The proposed NAAQS Protection Requirement establishes a mechanism 

that can safeguard the NAAQS and prevent this outcome while still allowing beneficial projects to be 

permitted and built. 

● PG&E expressed a concern about what may happen in future regarding the Bay Area’s situation 

vis-à-vis compliance with the NAAQS. PG&E stated that background pollutant concentrations 

could rise, or more conservative measurements of existing background concentrations could 

require higher background values to be used in permitting analyses. PG&E also stated that the 

NAAQS could be lowered and more stringent standards established. PG&E expressed a concern 

that in such situations, there would be less “headroom” to allow for new emissions increases

from new projects without resulting in a NAAQS violation.

Response: District Staff appreciate these concerns about how the amount of “headroom” between 

background concentrations and the NAAQS could be reduced based on future developments. Currently 

background concentrations are below the NAAQS for all pollutants that will be subject to proposed 

Section 2-2-308, and so there is “headroom” that will allow a certain amount of new emission before 

the NAAQS will be exceeded. Moreover, emissions are currently decreasing and District Staff expect this 

situation to continue. There is no absolute guarantee that this situation will always exist, however, as 

PG&E points out. District Staff will continue to monitor this issue, and may decide to propose revisions 

to the NAAQS Protection Requirement in the future if appropriate to address concerns that background 

concentrations may be close to or exceeding the NAAQS. District Staff intend to discuss this issue with 

the Board of Directors at the public hearing on the Proposed Amendments and to propose that the 

Board of Directors adopt a resolution directing Staff to monitor and revisit this issue as appropriate. 

District Staff believe that it would be premature to predict how any such situations may arise at this 

time, however, or to specify what the most appropriate course of action would be if they do. The better 

approach will be to continue to monitor the situation and to take appropriate action when and if it 

becomes necessary. District Staff (as well as interested members of the public and the regulated 

community) will be in a better position to assess any such situation and develop an appropriate 

response once it actually occurs.20

● PG&E suggested that the District should rely on existing regulatory requirements, such as 

existing Non-Attainment NSR, PSD and CEQA requirements, to maintain good air quality and 

protect public health.

 

20 There is an argument that if background concentrations rise so that background exceeds the NAAQS, having such 

a requirement will become even more important, not less important. But all such arguments, and the appropriate 

response, can best be assessed when any such situation actually arises.
19

Response: District Staff appreciate the recognition of the strength of existing air quality protection 

requirements, many of which the District put in place. These other requirements are not a guarantee 

that no specific project will ever cause or significantly contribute to a NAAQS exceedance, however. This 

is the reason why the NAAQS Protection Requirement is necessary. The requirement will work in 

conjunction with these existing regulatory requirements to provide an additional safeguard to ensure 

that the NAAQS are protected. 

● PG&E also offered alternative language for a NAAQS Protection Requirement that it suggested 

would be more appropriate. PG&E’s alternative would (i) apply only to PM2.5, and not to any 

other criteria pollutants; (ii) lock in the current PM2.5 NAAQS as the applicable air quality 

standard that needs to be complied with, so that if EPA revises the PM2.5 NAAQS in future a 

project would not need to show that it complies with the revised standard; (iii) use higher SILs 

than the SILs that EPA has established (2.0 μg/m3instead of EPA’s 1.2 μg/m3for 24-houraverage PM2.5 impacts, and 0.5 μg/m3

instead of EPA’s 0.3 μg/m3for annual-average PM2.5

impacts); (iv) allow projects to be built that will cause or contribute to a NAAQS violation if they

will provide emission reduction credits that exceed the amount of new emissions from the 

project by a ratio linked to their distance from the proposed new project (a ratio of 1:1.2 for 

reductions within 15 miles from the project or 1:1.5 for reductions more than 15 miles from the 

project), on a theory that such increased offset ratios will ensure a “positive net air quality 

benefit”; and (v) allow projects to be built that will cause or contribute to a NAAQS violation if 

they will involve other environmental benefits such as reduced greenhouse gas emissions. 

Response: District Staff has already considered many of these alternatives in developing the Proposed 

Amendments, but concluded that they would not provide any additional benefit or constitute a more 

appropriate approach to implementing the NAAQS Protection Requirement. 

First, District Staff disagree that only the PM2.5 NAAQS should be addressed by the requirement. PM2.5 is 

obviously a pollutant of significant concern given the health effects associated with it and the fact that 

the air quality in the Bay Area is close to the NAAQS level at this time. But it is also important to ensure 

that the NAAQS for other criteria pollutants are also protected. District Staff have therefore left the 

requirement as applicable to all criteria pollutants.21 District Staff have reviewed all permits that the 

District issued for new projects in the Bay Area over the past 12 years and found that very few (only 2) 

would actually trigger the requirement for pollutants other than PM2.5, so in practice Staff expect this to 

be a non-issue for such other pollutants. But to the extent that a new project were significant enough to 

exceed the applicable thresholds for these other pollutants, it is important to ensure that they do not 

result in a NAAQS exceedance for such pollutants. 

Second, District Staff disagree that the requirement should lock in the current PM2.5 NAAQS as the 

applicable standard. The requirement should focus on the most up-to-date standards available, and to 

the extent that EPA revises the NAAQS in the future to reflect a better understanding of air pollution 

and public health impacts, the NAAQS Protection Requirement in Section 2-2-308 should be aimed at 

 

21 Section 2-2-308 makes an exception for ozone, which is not directly emitted from stationary sources and for 

which certain unique modeling challenges. See Staff Report Section IV.B.3.a., p. 81, fn. 68.
20

such updated standards. Moreover, to the extent that there are any related concerns that would arise 

from a lowering of the NAAQS, such as reduced “headroom” between background concentrations and 

the NAAQS, those issues can best be addressed if and when any such situation arises as explained 

above. As stated there, District Staff are committed to revisiting this requirement in the event that the 

NAAQS are revised and making any appropriate revisions at that time. 

Third, District Staff disagree with the suggestion that EPA’s established SILs are inappropriate for PM2.5

modeling purposes. EPA set forth the basis for these SILs in the Federal Register notice establishing 

them, and the District has concluded that the same analysis is appropriate for District purposes in the 

Russell City permit.22 PG&E may prefer to have higher SILs, but it has not identified any reason why 

those SILs are more appropriate than EPA’s SILs or why EPA’s basis for setting those SILs was somehow 

flawed.

23

 

Fourth, District Staff disagree that providing emission reduction credits that will exceed a project’s new 

emissions increases at a heightened ratio will necessarily ensure that there will not be any NAAQS 

exceedance. It is entirely possible that even if a project provides emission reduction credits worth 1.2 

times or 1.5 times the new emission increases from the project, the project will still cause the NAAQS to 

be violated in the vicinity of the new emissions. Of course, if the emission reduction credits to be 

provided will in fact provide a “positive net air quality benefit” in the sense that ambient concentrations 

in the vicinity will actually be decreased, then those emission reductions can be included in the 

modeling demonstration to show that the project will not be causing or contributing to any NAAQS 

violation. But unless such a demonstration can be made, simply providing emission reduction credits at 

an increased ratio is not sufficient to ensure that the NAAQS will be protected.

Fifth, District Staff obviously support new projects that will provide environmental benefits such as 

improved efficiency and related greenhouse gas reduction benefits. The proposed NAAQS Protection 

Requirement is consistent with achieving those goals, as District Staff have explained. What is not 

appropriate it to undermine the District’s other important goals of attaining and maintaining the NAAQS 

in order to achieve those goals. We can address greenhouse gases and global climate without having to 

breathe unhealthy levels of PM2.5 and other criteria pollutants in order to do so. District Staff disagree 

that it would appropriate to include an exemption that would allow a project that may have greenhouse 

gas reductions associated with it to be permitted if it would push ambient PM2.5 levels (or other criteria 

pollutant levels) over the NAAQS. 

 

22 See Responses to Public Comments, Federal Prevention of Significant Deterioration Permit, Russell City Energy 

Center, BAAQMD Application No. 15487 (Feb. 2010), at Comment No. XIII.B.2., pp. 146-149 and accompanying 

footnotes (discussing basis for using PM2.5 SILs, with reference to EPA’s adoption documents), available at 

www.baaqmd.gov/~/media/Files/Engineering/Public%20Notices/2010/15487/PSD%. 

23 PG&E also suggested that listing these SILs would “explicitly allow the de minimis screening level approach (SIL 

concept) if ambient levels become greater than the NAAQS.” As explained above, this is in fact already the case –

proposed Section 2-2-308 as written allows for the de minimis SIL screening approach to be used. There is no need 

to recite the SILs explicitly in the rule in order to allow affected facilities to take advantage of this approach. 
21

COMMENTS OF VALERO REFINING COMPANY – CALIFORNIA

Valero Refining Company – California (Valero) submitted the following comments.

Valero Comment 1 – District Responses to Previous Valero Comments: Valero provided some further 

remarks to clarify its previous comments on the second draft of the Proposed Amendments with regard 

to the “NSR Reform” issue – i.e., whether the District should adopt EPA’s less-stringent NSR applicability 

test.

24

 By way of further clarification, Valero first stated that some environmentally beneficial projects 

may not be undertaken if they are subject to additional NSR permitting requirements “because of the 

additional burdens associated with those requirements.” Second, Valero stated that not undertaking 

such projects would not lead to higher emissions, but it would hinder beneficial facility improvement 

projects and therefore slow the introduction of emission reductions. Valero stated that the NSR Reform 

approach is therefore more stringent than the pre-NSR Reform methodology.

Response: District Staff appreciate these clarifications. District Staff believe that these points are 

generally consistent with their understanding of what Valero’s position has been on this issue all along –

that NSR Reform is more environmentally beneficial overall because it reduces permitting burdens that 

dissuade facilities from upgrading and modernizing their equipment. District Staff addressed these 

points in detail in Section IV.B.3.g.ii. of the Staff Report (pp. 98-105) and in the responses to the 

comments from Valero and others on this issue. 

Valero Comment 2 – NSR Reform Methodology: Valero noted that SB 288 – the state law that prohibits 

any air district from relaxing its NSR rules from those that existed as of the end of 2002 – prohibits air 

districts from adopting NSR amendments that are less “stringent” than their current rules. Valero stated 

that SB 288 does not define “stringent”. Valero suggested that this requirement should be interpreted 

to protect the environment from “real emissions increases”. Valero stated that the District should 

therefore be able to use the NSR Reform approach for beneficial projects – projects whose primary 

purpose is emissions reduction, energy conservation, or state or federally mandated product 

reformulations. Valero suggested that the District should adopt the NSR Reform applicability 

methodologies for these types of projects, while requiring the pre-NSR Reform applicability 

methodologies for all other projects. 

Response: There is nothing in the language or intent of SB 288 that distinguishes between different 

types of projects. If the District relaxes its NSR applicability methodology by incorporation the NSR 

Reform test under any circumstances, then that is a relaxation that is prohibited by SB 288 – even if such 

relaxation is limited to certain specific types of projects. District Staff understand the arguments that 

have been raised by Valero and other commenters that NSR permitting requirements hinder beneficial 

projects and that the District should adopt NSR Reform so as to encourage such projects. But the 

California Legislature also understood these arguments and disagreed with them in adopting SB 288, 

 

24 NSR Reform is discussed at length in the Staff Report, pp. IV.B.3.G.ii, pp. 98-105. Valero’s prior comments on 

this issue and the District’s responses are discussed in the May 25 Background Discussion and Response to 

Comments document, in Comment III.2, pp. 24-29. 
22

which prohibits any relaxation of the NSR applicability requirements for any projects – even for projects 

that may have some environmentally beneficial aspects. 

Valero Comment 3 – Emission Reduction Calculation Procedures (Section 2-2-605): Valero commented 

on the procedures for crediting emission reductions when a “fully-offset” source is shut down under 

proposed Section 2-2-605.2. Proposed Section 2-2-605.2 states that when a “fully-offset” source is shut 

down, the amount of emission reduction credit available should be based on the source’s maximum 

potential to emit (PTE) before the shutdown (adjusted for current regulatory standards). Valero 

commented that the calculation should instead be based on the source’s existing permit limit (instead of 

its PTE) before the shutdown. Valero explained that this distinction would be important in cases where 

the source’s maximum physical capability to emit air pollutants is actually less than its permitted 

emissions limit. 

Response: This comment addresses the unlikely situation where a source has an established permit 

limit that is actually greater than the maximum amount of emissions it can physically emit given its 

design and operational constraints, and where the source has provided offsets for the full amount of 

this permit limit. The District’s NSR rules are based on the principle that NSR permitting is based on a 

source’s PTE, and that if a source has a permit limit that is higher than its PTE for some reason, then the 

source’s actual PTE will be used (i.e., the maximum amount that it can physically emit) and not the 

higher permit limit. The language in the current proposed Section 2-2-605.2 reflects this principle. 

Affected facilities can avoid the situation where their physical PTE is lower than their fully-offset permit 

limit by providing offsets and taking permit limits that reflect their actual physical PTE and not some 

emissions level above the PTE. If a facility provides offsets and obtains a permit limit and then 

subsequently undertakes some physical change at the facility that reduces the source’s physical PTE to a 

level below this permit limit, the facility can apply at that time to bank the difference between the 

permit limit and the new, lower PTE. This will ensure that facilities in this situation will be able to 

recover the value of any offsets provided previously to support a “fully offset” permit limit. 

Valero Comment 4 – PM2.5 Source Test Methodology: Valero made two comments regarding PM2.5

testing methods. First, Valero stated that the EPA-approved test methods for PM2.5 contain certain 

inherent limitations that mean they cannot be used on stack emissions with a high temperature or high 

moisture content. Valero stated that where such limitations apply, this means that PM can be measured 

only as total PM based on EPA Method 5 and Method 202 – i.e., in such cases it is not possible to 

measure the PM2.5 fraction specifically, only total PM. Second, Valero stated that for gaseous 

combustion devices, much of the PM emitted actually comes from PM introduced in the combustion air, 

not from the combustion process itself. Valero stated that these issues should be addressed, either in 

rule language or in the permitting record, “so that when new PM limits are set as part of a permit 

condition, available stack test methods are utilized to assist in developing the compliance limits.” 

Response: The District is required to implement EPA’s NSR requirements in order to have an approved 

NSR program. EPA requires that the District establish PM2.5 permit limits for all sources that trigger the 

NSR requirements, including those whose emissions have a high moisture content or high temperature. 

The Proposed Amendments include provisions allowing for alternative test methods to be used to 
23

measure PM2.5 where the EPA-approved test methods are not applicable, and District Staff will use those 

provisions where necessary to ensure that the best possible PM2.5 test methods are used in setting PM 

limits and in determining compliance with such limits. These provisions will ensure that “available stack 

test methods are utilized” when setting PM emissions limits – either the EPA-approved PM2.5 test 

methods where those are applicable, or the best alternative test methods where they are not. To the 

extent that there are limitations in such test methods, there is nothing more that the District can do 

other than use the best available methods. EPA requires that the District address PM2.5 in permitting 

such sources, and the District is therefore required to do so as best it can given the test methods that 

are available. District Staff are confident that they will be able to do so with the testing methodologies 

that have been developed to date. In addition, EPA also requires that the District base its NSR 

permitting regulations on all of the pollutants that are emitted from a source, regardless of whether 

those pollutants are generated by the source itself or whether they are already present in the inputs 

into the process (i.e., entrained in the combustion air or present in the fuel combusted). EPA 

requirements currently do not allow a source to exclude PM emissions where the PM comes from PM 

introduced in the combustion air. The District’s NSR Rules therefore do not provide any exclusion for 

any such PM present in a source’s stack emissions. 
24

COMMENTS OF WESTERN STATES PETROLEUM ASSOCIATION:

The District received the following comments from the Western States Petroleum Association (WSPA). 

WSPA Comment 1 – Reorganization of Regulatory Provisions: WSPA stated that the re-organization of 

certain provisions in Regulation 2 under the Proposed Amendments will “mak[e] it difficult for those in 

the regulated community to determine how the proposed changes would impact future projects.” 

WSPA requested that District Staff should hold another meeting of the technical working group that 

Staff convened for this project to discuss how the NSR and Title V permitting processes will work under 

the Proposed Amendments using example projects and how they will be permitted, flowcharts to 

demonstrate the process, etc.

Response: District Staff welcome the opportunity to meet with members of the regulated community 

and other members of the public to discuss how NSR and Title V permitting works. As District Staff have 

discussed in other venues, including in responses to earlier comments, District Staff are planning a 

comprehensive outreach and education program to improve the regulated community’s (and the 

general public’s) understanding of how the District’s NSR and Title V permitting programs work. These 

initiatives will include training sessions to inform and educate members of the public on what the 

regulations require, as well as an overhaul of the District’s permitting handbook so that it better 

describes the permitting process. District Staff would be more than happy to start this outreach process 

with WPSA and its members immediately, before the Board of Directors meets to consider the Proposed 

Amendments, and have contacted WPSA representatives to do so. District Staff intend to discuss 

specific examples with WSPA to illustrate how the NSR and Title V permitting programs work and to 

walk WSPA through the permit evaluation and issuance process. 

District Staff also point out that the need for this educational outreach to members of the regulated 

community and the public (and the revision of the permitting handbook) have been present for some 

time, independent of the Proposed Amendments. As District Staff have gone through the rule 

development process for the Proposed Amendments, it has become clear that many in the regulated 

community (among others) do not have a strong understanding of how the District’s current permitting 

requirements work. District Staff believe that this situation has arisen in part because the rules are 

poorly organized in some aspects and not written in language that is clear and specific enough to be 

easily understood. The Proposed Amendments will address this situation by setting forth the regulatory 

requirements in a manner that is more clear and straightforward, which will help all users of the 

regulations to understand better how they work and what they require.25 Thus, it is not the proposed 

reorganization of Regulation 2 that is causing the confusion WSPA cites about how these permitting 

programs will apply to future projects, it is primarily the lack of clarity and specificity in the District’s 

 

25 Note that although the Proposed Amendments will make some important changes to the NSR and Title V 

programs, as discussed in the Staff Report and other documentation, these changes are actually quite limited in 

the larger context of all of the existing elements of these comprehensive permitting programs. As District Staff 

have stressed in the past, the bulk of the revisions simply revise the regulatory language to better state how the 

existing requirements apply under the current regulations. Much of the concern about how the revised 

regulations will apply actually stems from confusion and ambiguity about how the existing regulations apply today.
25

current regulations, which has unfortunately been present for a long time. The Proposed Amendments 

will address this problem by setting forth the regulatory requirements in a manner that specifies exactly 

what the regulations require more clearly and with more detail. Moreover, District Staff will further 

support these improvements in the regulations with the education and outreach discussed above to 

help ensure that all affected members of the regulated community understand how the NSR and Title V 

permitting programs work. District Staff look forward to working with WSPA and its members – and 

with all members of the regulated community and interested members of the public at large – as these 

efforts move forward. 

WSPA Comment 2 – Definition of “Modification” – the “Federal Backstop” Provision: WSPA 

commented that the District should not adopt the “federal backstop” provision for the definition of 

“modification”.26 WSPA commented that adding this element to the definition would complicate the 

rule because projects would need to be analyzed twice, under the two alternative tests, to ensure that 

they are not a “modification” that needs to obtain an NSR permit. WSPA stated that the “federal 

backstop” is not necessary to satisfy EPA’s NSR requirements as District Staff explained in the May 25 

Background Discussion document. WSPA urged the District to adopt a one-part definition of 

“modification” and encourage EPA Region IX staff to approve it.

Response: WSPA made a very similar comment on the Second Draft of the Proposed Amendments, and 

District Staff provided a detailed response.

27

 As District Staff explained in response, EPA Region IX Staff 

have now made clear that EPA will not be willing to approve the District’s NSR rule unless the District 

adds the federal backstop. As a result, the District has little choice but to add it to the “modification” 

definition. This continues to be the case. 

WSPA Comment 3 – NAAQS Protection Requirement (Proposed Section 2-2-308): WSPA stated that the 

District should not adopt the proposed NAAQS Protection Requirement in proposed Section 2-2-308.

28

 

WSPA stated that requiring projects to demonstrate that they will not cause or contribute to a NAAQS 

exceedance “works satisfactorily in practice” for Prevention of Significant Deterioration (PSD) purposes. 

But WSPA objected to extending the requirement to additional NSR permitting beyond the PSD context. 

WSPA stated that extending this requirement beyond just PSD permitting will “substantially increas[e] 

permitting burdens.” WSPA stated that the District should not impose any requirements that are any 

more stringent than the minimum required by federal regulations.

Response: District Staff appreciate WSPA’s acknowledgement that the NAAQS compliance modeling 

requirement works in the PSD context. But District Staff disagree that it will be inappropriate or 

problematic to extend this requirement to other types of projects with significant emissions increases. 

 

26 The federal backstop provision is discussed in the Staff Report in Section IV.A.1.b., pp. 31-34.

27 Staff’s Response to Comments document addressing earlier comments received on the NAAQS Protection is 

available at www.baaqmd.gov/~/media/Files/Engineering/Proposed%20Reg%202%20Changes/2nd%20Draft%. 

Staff’s response to WSPA’s earlier comments on the “federal backstop” provision is on p. 17 of that document.

28 The proposed NAAQS Protection Requirement in Section 2-2-308 is discussed in Section IV.B.3.a. of the Staff 

Report, pp. 81-82.
26

As District Staff have explained in the documentation discussing the basis for this requirement, it is just 

as important to ensure that the ambient air in the Bay Area complies with the NAAQS for nonattainment pollutants as it is for attainment pollutants, and it is equally important to address significant 

emissions increases at major facilities as it is at non-major facilities.29 Put another way, it does not make 

much sense to conclude that a significant emissions increase is important and should be evaluated when 

it comes from a facility over the “major” facility threshold, but that the same significant emissions 

increase is not important and does not need to be evaluated when it comes from a facility that is under 

the threshold. The emissions are the same and the impacts are the same, and so it makes sense in both 

cases to ensure that the emissions will not cause or contribute to a NAAQS exceedance, which is what 

the proposed NAAQS Protection Requirement does. By the same token, it does not make much sense to 

conclude that a significant increase in emissions of a pollutant is important and should be evaluated 

when the District is administratively designated as “attainment” for a pollutant, but that the same 

significant emissions increase is not important and does not need to be evaluated if the District’s 

administrative designation changes to “non-attainment” for that pollutant. The emissions are the same 

and the impacts are the same, and so it makes sense in both cases to ensure that the emissions will not 

cause or contribute to a NAAQS exceedance, which again is what the NAAQS Protection Requirement 

does. 

The situation with PM2.5 – the pollutant that has generated the most debate and discussion among the 

commenters – illustrates the importance of this point. Up until December of 2009, this pollutant was 

designated as an attainment pollutant and was subject to a NAAQS compliance modeling analysis

requirement under the PSD program, which is a requirement that WSPA says “works satisfactorily in 

practice.” In December of 2009, however, the administrative designation for this pollutant was changed 

to “non-attainment”, meaning that it was no longer subject to the PSD modeling requirements. But the 

change in administrative designation did not change the potential impacts of a significant increase in 

PM2.5 emissions from a new project on the District’s ability to comply with the NAAQS or on public 

health. The proposed NAAQS Protection Requirement recognizes this reality and establishes a 

requirement that projects with such emissions increases will still have to demonstrate that they will not 

cause or contribute to a NAAQS exceedance in the same way that they did before. District Staff disagree 

with WSPA’s comment that continuing to apply this requirement – one that was working satisfactorily 

before the change in the designation for PM2.5 – will “substantially increas[e] permitting burdens.” If 

anything, the permitting burdens will decrease compared with what they were before the PM2.5 redesignation in 2009, because background PM2.5 concentrations have come down since then, meaning 

that there is additional “headroom” to allow new PM2.5 emissions to occur without resulting in an 

exceedance of the NAAQS. 

For all of these reasons, as well as for all of the reasons that District Staff have explained in the 

documentation it has published to date addressing the proposed NAAQS Protection Requirement, 

District Staff disagree that adopting this requirement would be inappropriate or unduly burdensome. To 

the contrary, this requirement is an appropriate and targeted mechanism to help achieve the primary 

 

29 See, e.g., Staff Report, Section IV.B.3.a., pp. 81-82.
27

purpose of the NSR program – to support the District in its efforts to ensure that the air we breathe in 

the Bay Area will attain and maintain the NAAQS. 

District Staff do understand that this will be an additional requirement that applicants must satisfy in 

order to obtain an NSR permit, and that WSPA is interested in reducing the number of regulatory 

requirements that will apply to its members. But District Staff believe that the requirement will not be 

unduly burdensome and will not obstruct beneficial development projects, for all the reasons that 

District Staff have discussed previously – and even more importantly, that the benefits from the 

requirement in terms of ensuring that the Bay Area does not experience additional NAAQS violations 

outweigh any associated burdens. District Staff also understand and appreciate WSPA’s concerns about 

the mechanics of how the requirement will be implemented for sources subject to it, and have worked 

to address such concerns during this rulemaking process. These efforts are reflected in the changes that 

Staff have made in the final version of the NAAQS Protection Requirement in proposed Section 2-2-308. 

Finally, District Staff also understand and appreciate WSPA’s concerns that future developments may 

make it more difficult to comply with this requirement, for example if the NAAQS are lowered or if 

background concentrations rise such that it becomes harder to show that a new project will not cause or 

contribute to a NAAQS exceedance. District Staff have committed to monitoring this situation and will 

propose that the Board of Directors adopt a resolution that the District revisit this requirement in the 

future to address any such developments, as discussed in the responses to comments from PG&E (see p. 

18 above). District Staff believe that these efforts to respond to and accommodate WSPA’s concerns 

have addressed the potential for difficulties in complying with this requirement that form the basis for

WSPA’s comments. District Staff are hopeful that with these efforts WSPA will be able to support the 

adoption of this important requirement. 

WSPA Comment 4 – Regulations Should Provide Clear Roadmap: Finally, WSPA also commented that it 

was “concerned” about District Staff’s earlier responses to certain comments. WSPA stated that 

commenters had asked how the District would address certain specific factual situations, and that in its 

responses District Staff had noted that each individual permit application needs to be reviewed on a 

case-by-case basis taking into account the specific facts and circumstances of the situation. WSPA also 

stated that District Staff had explained that when the Proposed Amendments are adopted, Staff will 

hold additional workshops and training sessions to ensure that all interested members of the public and 

of the regulated community understand how the District’s NSR and Title V permitting programs work, 

and will update the District’s Permitting Handbook to reflect the new requirements that are being added 

under the Proposed Amendments. WSPA commented that these statements by District Staff indicate 

that the Proposed Amendments are not sufficiently specific and detailed about what they require. 

WSPA stated that “[r]egulations should provide a clear roadmap for permit applicants and leaving 

implementation details to discussions after the proposed amendments are adopted creates enormous 

uncertainty.” 

Response: District Staff strongly disagree that the Proposed Amendments are not clear and specific 

about what will be required for NSR and Title V permitting. The Proposed Amendments do provide a 

“clear roadmap” of what the District will require of permit applicants under these programs, and they 

specify in great detail exactly how the District will implement each of the specific requirements in these 
28

permitting programs. District Staff have drafted the text of the Proposed Amendments to state the 

requirements with precise and detailed language. Moreover, Staff have provided in-depth explanations

of how the requirements will work in the Staff Report and in responses to comments and other 

published documentation, and have held many hours of meetings with the regulated community and 

others to discuss how the requirements will work. Contrary to WSPA’s assertion, the Proposed 

Amendments make it very clear what will be required (and what will not be required) in order for permit 

applicants to obtain NSR and Title V permits under Regulation 2. Indeed, the Proposed Amendments 

will greatly improve the clarity and specificity of the current Regulation 2 in these areas; the fact that 

the current regulatory language is unclear, ambiguous and confusing in a number of areas was one of 

the principal reasons why the District undertook this rulemaking project in the first place.

With respect to WSPA’s comment that District Staff noted that each individual application needs to be 

evaluated on a case-by-case basis, this is true of every regulation, and District Staff’s observation on this 

point does not mean that the Proposed Amendments are somehow insufficiently clear and specific. 

Several commenters gave hypothetical examples that provided a handful of facts about a situation, and 

then asked how the District would address such situations under the Proposed Amendments. In 

response, District Staff observed that it is impossible to give a definitive answer regarding hypothetical 

examples such as these because every real-life permitting situation needs to be addressed on a case-bycase basis. Permitting issues are necessarily very complicated given the complex nature of major 

industrial facilities, and there are inherently a large number of factual issues that need to be 

investigated and evaluated before a definitive answer can be given on how the permitting requirements 

apply in a specific situation. Given this reality, it is appropriate to provide a caveat that in responding to 

such hypothetical examples, District Staff can give only a general response and cannot provide the type 

of definitive response that can be developed only after a full review of all of the facts and circumstances 

presented by a specific situation. Moreover, after providing this important caveat, in each such 

situation District Staff did respond by describing how applicable regulatory requirements that were the 

subject of the comments apply as a general matter, providing the type of “clear roadmap” that WSPA is 

seeking about how the Proposed Amendments will work in practice. Rather than “creat[ing] enormous 

uncertainty,” these responses informed the commenters as to what the regulations require. The fact 

that District Staff cannot provide definitive answers in response to abstract hypothetical questions does 

not suggest otherwise. 

With respect to District Staff’s statements that it will continue to provide outreach and training to 

regulated entities on how the District’s permitting programs work, and will revise and update the 

permitting handbook, the fact that District Staff intend to do this also does not mean that the Proposed 

Amendments are somehow insufficiently clear and specific. Any time that regulations are revised, it is 

important to follow up the adoption of the revisions with outreach and education to ensure that the 

public is informed of what the revisions involve. Moreover, as explained in response to WSPA comment 

no. 1 above, in the case of Regulation 2’s NSR and Title V permitting programs, there has been a need 

for such outreach and education to explain how the District’s current regulations work for some time, 

regardless of whether or not the District adopts the Proposed Amendments. The fact that District Staff 

stated that they will provide further outreach and training to regulated entities and members of the 
29

public simply reflects these realities. It is not an indication that the regulations are not sufficiently 

specific as drafted, or that District Staff are leaving important questions regarding how the NSR and Title 

V programs work unresolved to be answered after the Proposed Amendments are adopted. To the 

contrary, District Staff have spent over a year immersed in these issues, and they have addressed every 

implementation issue that they have identified or that has been raised by the public in the multiple 

rounds of meetings, discussions, and written comments on the Proposed Amendments. District Staff 

agree that outreach and education will continue to be important even after the Proposed Amendments 

are adopted, for the reasons outlined above. But District Staff strongly disagree that adoption is 

somehow premature at this point because the regulations are not clear and specific enough or because 

there are still unresolved questions about what exactly the regulations will require.
30

VERBAL COMMENTS REGARDING THE POTENTIAL FOR FUTURE REMOVAL OF PM2.5

REQUIREMENTS UNDER SB 288:

In addition to the written comments that District Staff received that are addressed above, members of 

the regulated community also raised a concern verbally in meetings with District Staff that Staff would 

like to respond to. The concern involves the addition of the NAAQS Protection Requirement for PM2.5

and other new requirements for PM2.5. Some members of the regulated community were concerned 

that if these new requirements are added at this point, and later on it appears that they are no longer

appropriate and should be removed from Regulation 2, that SB 288 would bar their removal because 

this would be a relaxation of the District’s NSR rules. This is not the case. SB 288 by its terms applies to 

relaxations of the District’s NSR rules as they existed as of December 31, 2002. Any new requirements 

that are added in 2012 are not subject to the SB 288 prohibition, because by definition they were not 

part of the rules that existed as of December 31, 2002. This includes the new NAAQS Protection 

Requirement for PM2.5, other new requirements for PM2.5 such as the BACT and offsets requirements, 

and any other new requirements being added in the Proposed Amendments.

In addressing this point, District Staff also wish to point out that they believe that the new requirements 

being added in the Proposed Amendments are justified and appropriate based on all of the important

policy considerations as explained in the Staff Report and related documentation. Moreover, in most 

cases these new requirements are also required under the Clean Air Act in order for EPA to approve the 

District’s permitting programs. For these reasons, District Staff do not envision a future scenario in 

which the District would want to eliminate these provisions from Regulation 2. As a matter of law, 

however, if a situation was to arise where the District wanted to remove any of these provisions, SB 288 

would not be a legal impediment to doing so. This issue was a matter of confusion and concern for 

certain members of the regulated community, and so District Staff wanted to respond in writing on the 

record to set forth how the SB 288 legal restrictions apply in this context.30 

 

30 Note also that the applicability of SB 288 to new requirements being added in 2012 is different from the 

question of how SB 288 applies to PM requirements that were in effect as of 2002. This issue was addressed in 

footnote 94 on p. 99 of the Staff Report. As noted there, where there were PM requirements in effect as of 2002, 

there is some question about whether these requirements establish an SB 288 baseline for PM2.5 against which any 

amendments addressing PM2.5 would be assessed in the SB 288 “backsliding” analysis. But that scenario applies 

only for existing PM requirements that were in effect as of 2002. Any new requirements being added in 2012 are 

not subject to any SB 288 restrictions and can be removed at any time without running afoul of SB 288.