Construction Emissions Rules Create New CEQA Headaches For Builders

As we recently reported (6/17/10 update: “Landmark New CEQA Guidelines For Greenhouse Gas and Particulate Matter”) the Bay Area Air Quality Management District (“BAAQMD”) adopted new CEQA Guidelines (“Guidelines”) at the beginning of June. By lowering the threshold of significance for air quality impacts, especially on construction-related emissions, the Guidelines and related regulations will significantly increase the burden of CEQA compliance on many San Francisco projects. Even relatively small projects will have to complete expensive air quality analyses and health risk assessments related to construction. Depending on the results, many would have to prepare Negative Declarations or EIRs simply to analyze these construction-related emissions.

Our previous update gave an overview of the BAAQMD Guidelines, including new standards for operational emissions of greenhouse gases emissions and toxic air contaminants. This week, we specifically focus on the Guidelines’ treatment of construction-related emissions and the implications for new development in San Francisco.


The Guidelines establish new and lower thresholds of significance for toxic air contaminants (TACs), a category which includes fine particulate matter (PM2.5), diesel particulate matter (DPM), and a number of other criteria pollutants that have deleterious effects on human health. The thresholds apply to all potential pollution sources associated with a project, including pollution generated by construction delivery vehicles and equipment used on site.

Impact Thresholds

For individual projects, construction activities cause a significant impact requiring preparation of an EIR or Negative Declaration where TAC emissions are expected to exceed threshold amounts (air quality impact) or where emissions create a risk to human health (health risk impact). Air quality impacts occur where emissions of ROGs (reactive organic gases), NOX (nitrogen oxide), or PM10 (fine particulate with a diameter of 2.5 micrometers or less) are expected to exceed 54 pounds per day, or where PM10 (respirable particulate matter with a diameter of 10 micrometers or less). Health risk impacts occur where a project is expected to cause (a) an excess cancer risk level of more than 10 in one million, (b) a non-cancer hazard index greater than 1.0; or (c) an incremental increase of more than 0.3 micrograms per cubic meter of annual average PM2.5.

Evaluating Impacts

The Guidelines call for a two-step process to evaluate both air quality and health risk impacts. First, a project is compared to BAAQMD’s screening criteria. The screening criteria provide a quick and standardized method for determining whether a project could have a significant environmental impact due to construction air quality.

In order for air quality impacts to be treated as less than significant under the screening criteria, projects must:

  • Be under a certain size, which varies according to the type of project. In general, commercial projects cannot be larger than 277,000 sq. ft. and residential projects must contain 240 or fewer dwelling units.
  • Not involve demolition, “extensive” material transport or site preparation, or simultaneous occurrence of more than two construction phases (e.g. paving and building construction) would not meet the screening criteria.
  • With the exception of high-density infill development, not include simultaneous construction of more than one land use type.

In addition, projects must comply with BAAQMD’s “Basic Construction Mitigation Measures”, which largely duplicate existing laws restricting idling vehicles and mandating dust control measures.

To meet the screening criteria for health risk impacts, projects must be a certain distance from “sensitive receptors.” Sensitive receptors include residential units, schools and other facilities used by persons especially sensitive to pollution, like children, the elderly and people with illnesses. The minimum distance varies according the type of project and size of the site. However, even the smallest residential project must be at least 311 feet from the nearest sensitive receptor to meet the screening criteria. Small commercial and industrial projects must be at least 328 feet away from sensitive receptors.

Projects meeting the above screening criteria have a less than significant impact and do not require a detailed air quality or health impact assessment. Unfortunately, the screening criteria are conservative and penalize development in dense, mixed-use settings like San Francisco. Many infill projects involve demolition of existing buildings and there are relatively few development sites in San Francisco that are less than 300 feet from a residence, school, medical facility or other “sensitive receptor.” Thus, many projects will now be required to conduct an air quality analysis and health risk assessment.

A project-specific air quality analysis and health risk assessment is an opportunity-albeit an expensive one-to more accurately estimate a project’s impacts. It can be conducted in one of two ways. It can use generic assumptions about construction emissions based on the type of project proposed. However, many of these assumptions are based on suburban development models and do not account for the lesser impacts of infill projects. Alternatively, if more detailed information can be provided by a project sponsor or contractor, the analysis can more accurately compare project-specific impacts to the significance thresholds.

Experience with the new Guidelines is limited. However, it is our understanding that many mid-sized projects will exceed the significance criteria if default assumptions are used in the air quality analysis and health risk assessment. For these projects, the ability to provide detailed information about construction plans and equipment may be critical to avoiding overstating environmental impacts and needlessly preparing EIRs. For other projects, it may be possible to mitigate impacts by committing to the use of state-of-the-art construction equipment that meets or exceeds the latest air quality standards. In either case, it will be key to have early input from a contractor about construction plans or the cost and feasibility of mitigation-an option that may not be available to all sponsors.

Is Relief on the Way?

During the comment period on the Guidelines, several governmental agencies-including the San Francisco and Oakland Planning Departments and the Association of Bay Area Government-raised concerns that the new rules could stifle infill development by adding new cost and complexity to the CEQA process. In San Francisco, the new regulations could undermine efforts to expand the use of Community Plan Exemptions for projects in areas like the Eastern Neighborhoods and Market-Octavia Plan Areas, where extensive plan-level environmental review has been completed. The Planning Department has continued to lobby BAAQMD for sensible changes to the Guidelines that would more accurately account for the lower impact profile of infill projects.

BAAQMD has responded to these efforts by stating that it intends to update its screening criteria methodology for health risk assessments. It has also given a grant to the San Francisco Department of Public Health (“DPH”) to assist it in developing a Community Risk Reduction Plan (“CRRP”). A CRRP would establish generally applicable measures to reduce emissions and associated health risks. Projects complying with a CRRP would not require an EIR or Negative Declaration to address air quality or health risk impacts. However, preparing a CRRP will not be a quick process, as it will itself require environmental analysis and consultations between BAAQMD, DPH and the Planning Department. In the meantime, developers in San Francisco will face yet another expensive hurdle.

Reuben & Junius, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

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