USEPA REGION IX

TECHNICAL SUPPORT DOCUMENT

for

SJVUAPCD Rule 9510

ATTACHMENT 2
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

 Rule 9510 and Rule 3180

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153. COMMENT: Follow-Up ñ When asked to clarify this response at the September 

1 workshop, District staff indicated that their primary concern with simply using 

the revised age distributions presented earlier by Sierra/Dowling was that lightduty vehicle class mixes may also be different in new residential areas than 

represented by URBEMIS defaults. Specifically, the concern was that residential 

vehicle fleets contain a much higher fraction of sport utility vehicles (SUVs) and 

pickups than represented in a region-wide fleet. 

Our original analysis of the emission impacts of corrected vehicle age distribution 

was conservatively applied only to passenger cars (which make up less than 

60% of the residential fleet), instead of all light-duty vehicles (which comprise 

roughly 90% of the fleet). We revised our original analysis to include all lightduty vehicles (which include both passenger cars and the light-duty truck 

categories) because the household survey data upon which the revised age 

distributions were based included both cars and light-trucks. And to 

conservatively address the Districtís concern that a residential fleet would contain 

a higher fraction of SUVs and pickups than in a region-wide fleet, we doubled the 

existing fraction of the Light-Duty Truck 2 (LDT2) category (which contains most 

of the SUVs and large pickups) from roughly 16% to 32%. 

Table 3 compares the results of this revised analysis, which applies the newer 

age distribution to all light-duty vehicles and doubles the LDT2 fleet fraction, to 

those based on the original URBEMIS defaults. The percentage differences 

shown in Table 3 are very similar to those presented earlier in Table 2. The 

reason for this is that although light-duty trucks (specifically LDT2s) have been 

historically required to meet less stringent in-use emission standards than 

passenger cars, this gap in stringency has narrowed in recent years and more 

importantly, their standards have been tightened over time much like passenger 

car standards. Thus, dramatically increasing the assumed light-duty truck 

fraction in the residential fleet has much less effect on the relative emission 

impact compared to URBEMIS defaults and accounting for the younger age 

distributions of all light-duty vehicles found in newer residential vehicle fleets. 

Table 3 

Exhaust Emission Impacts of Corrected Vehicle Age Distribution and 

Doubled LDT2 Fleet Fraction 

(SJV Light-Duty Vehicle Fleet, Calendar Year 2005, Summer) 

Quantity/Age Distribution ROG NOx PM10

Emission Factor (grams/mile) - URBEMIS Default 0.180 0.345 0.0103 

Emission Factor (grams/mile) - New Residential 0.133 0.267 0.0084 

% Difference (New Residential vs. URBEMIS) -26.1% -22.5% -17.9% 
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Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

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Therefore, even when accounting for a higher fraction of SUVs and pickups in 

new residential fleets, we maintain that URBEMIS still overstates NOx and PM10

exhaust emissions by approximately 20% due to unrepresentative age 

distribution assumptions. We believe we have provided the District with ample 

and readily-available evidence regarding residential fleet age distributions, 

whose impacts overwhelm those due to what may be higher SUV and pickup 

fractions in new residential developments. Furthermore, even if fleet data were 

collected through a survey of new residential developments, the District has not 

answered the question of how to apply these data since they cannot be 

accommodated within URBEMIS. 

RESPONSE: The District still believes that URBEMIS is the best model for the 

job and has consistently stated that it would use better data when available. The 

District will consider applying an age correction factor to the output to address 

this concern. 

154. COMMENT: URBEMIS Silt Loading Factors Inconsistent with ARB Inventory, 

Overstates Residential Project Emissions ñ This is another striking example 

where URBEMIS default assumptions dramatically overstate actual residential 

project emissions; in this case, by nearly 50% of total operating PM10 emissions. 

The default silt loading factor supplied to the user by URBEMIS for calculation of 

entrained (i.e., fugitive dust) PM10 emissions is inconsistent with those used by 

ARB on its emissions inventory and the Districtís PM10 SIP. 

In URBEMIS and in ARBís emissions inventory, fugitive dust PM10 emissions are 

calculated for vehicle travel on paved roads using the following equation: 

0.65 1.5 EFpaved = k ×(sL / 2) ×(W / 3)

Where: 

EFpaved is the emission factor (lb per vehicle mile traveled); 

k is the particle size multiplier (0.016 for PM10); 

sL is the road surface silt loading factor (in grams per square meter); 

W is the average weight of vehicle traveling on the road (4,850 lbs is default). 

The default road surface silt loading factor in URBEMIS is 0.1 grams per square 

meter. This value is higher and does not comport with San Joaquin Valley 

values used by ARB in its statewide inventory for entrained road dust on paved 

roads, which are different for each roadway type as follows: 

• 0.020 g/m2

 for freeways 

• 0.035 g/m2 for major arterials 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

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• 0.035 g/m2

 for collectors 

• 0.320 g/m2 for urban locals 

• 1.6 g/m2

 for rural locals. 

Using data compiled by the Federal Highway Administration (FHWA) under the 

Highway Performance Monitoring System (HPMS), the San Joaquin Valley 

exhibits the following travel percentages by the road types listed above: 

• Freeways ñ 33.25% 

• Major Arterials ñ 38.97% 

• Collectors - 27.59% 

• Urban Locals ñ 0.19% 

• Rural Locals ñ 0.01% 

The weighted average silt loading factor using these travel fractions and ARBís 

silt factors by roadway type was calculated to be 0.031 grams per square meter, 

which is well below the 0.1 default values contained in URBEMIS. Using this 

ARB and HPMS-based weighted average silt factor for the San Joaquin Valley in 

the above equation results in a paved road dust emission factor that is 53.6% 

below that based upon the URBEMIS default silt factor. Use of the ARBconsistent silt factor will also result in a 53.6% reduction in paved road dust PM10

emissions computed using URBEMIS defaults. 

According to emissions inventory summary data available from ARB on-line at 

http://www.arb.ca.gov/ei/emsmain/reportform.htm paved road dust PM10

emissions make up about 90% of total on-road vehicle PM10 emissions in the 

San Joaquin Valley, excluding unpaved road travel. (We exclude unpaved road 

dust under the assumption that operating emissions of vehicles in a new 

residential project exhibit little travel on unpaved roads.) Thus, use of a paved 

road silt loading factor consistent with ARBís inventory would translate to a 

48.2% reduction on total operation PM10 emissions of a residential project as 

described below: 

%Reduction = PavedFrac × (1 - %SiltReduction) + RemainingFrac 

 = 90% × (1-53.6%) + 10% 

 = 48.2% 

Where PavedFrac is the fraction of project emissions from paved road dust, 

%SiltReduction is the relative reduction in paved road emissions using the ARBconsistent silt factor compared to URBEMIS and RemainingFrac is the remaining 

project emissions of PM10 (from exhaust, brake wear and tire wear). 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

 Rule 9510 and Rule 3180

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Again, this issue and the alarmingly high overstatement of PM10 emissions based 

on model defaults points out the need to further review and provide detailed 

guidance for use of URBEMIS in calculating project-specific emissions under the 

proposed ISR rules. 

RESPONSE: The District concurs with Sierraís methodology and will ensure that 

the correct silt loading factors are utilized in URBEMIS defaults.

155. COMMENT: Follow-Up ñ We appreciate the Districtís response to correct the 

existing silt load factors in URBEMIS. However, when questioned during the 

September 1 workshop about how and when these silt loading corrections (as 

well as corrections related to the earlier fleet mix and vehicle age issues) would 

be addressed, staff indicated that these corrections to URBEMIS defaults would 

not be completed and released for review prior to the District Board hearing in 

mid-November for adoption of the ISR rules. Moreover, staff was unclear 

whether these corrections would be handled by revising the URBEMIS model, or 

by developing written guidance for users of the model under the ISR rules 

instructing them how to correct the overstated model defaults when applied to 

residential development projects. 

Given the significance of the impacts of the flawed model defaults on the costs to 

comply with these proposed rules, we believe these model revisions or guidance 

documents should be developed and publicly reviewed before ISR rules are 

adopted if the District intends to pursue the rules despite URBEMISí deficiencies. 

RESPONSE: The District is developing guidance for preparing the air quality 

impact assessment required by the rule. The guidance will include the default 

silt-loading factor provided by Sierra Research. The District will provide 

URBEMIS data files updated with changes that can be used without having to 

enter the new data. The next upgrade to URBEMIS will contain much of the 

updated information. The staff report has been updated to describe the impact 

of these changes on the emissions estimates and economic impacts. 

156. COMMENT: URBEMIS Is Inconsistent With SIP Methodology ñ When a typical 

residential project was modeled using both URBEMIS and a SIP-based modeling 

URBEMIS estimates over 60% higher vehicle miles traveled (VMT) and over 

50% higher emissions for all pollutants than SIP-based approach. 

This is not surprising. The URBEMIS model was originally written as a ìsketchplanningî tool, designed to produce intentionally conservative analyses of 

localized emission impacts from different land uses. For over ten years, the 

URBEMIS model has been used to assess development project emissions under 

the California Environmental Quality Act (CEQA) review process. Under CEQA, 

use of URBEMIS as a conservative (i.e., over-predictive) screening tool is 

entirely appropriate for comparing project emissions to ìsignificance thresholdsî 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

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established under air district guidelines since CEQA requires disclosure of 

project impacts and significance, but not compliance with regional or state air 

quality plans or standards. Under this process, URBEMIS-based emission 

impacts can acceptably err on the side of caution or over-prediction. 

RESPONSE: URBEMIS has been continuously updated to provide increased 

accuracy with each new version. Many of the default values that are based on 

statewide averages can be changed to use local information when available. 

The District appreciates the review conducted by Sierra Research to identify 

additional areas of improvement. The next version of URBEMIS will contain 

many of these improvements. In the interim, applicants will be instructed to enter 

local information that is currently available. This information will be provided in a 

District guidance document. Analyses prepared by the District will also use the 

local information. URBEMIS remains the best tool for performing project level 

analyses and provides reasonable estimates of project impacts. 

157. COMMENT: Conversely, these ISR rules are being implemented to address 

specific emission reduction commitments made by the District in Ozone and 

PM10 SIPs for the San Joaquin Valley. Region-wide pollutant emissions 

calculated under these SIPs use a more rigorous set of models that have been 

validated with direct measurements to determine motor vehicle travel impacts 

and resulting emission impacts than represented in URBEMIS. During the ISR 

rule development, the District has provided no clear evidence that URBEMIS is 

capable of calculating emissions from development projects in a manner that is 

consistent with SIP-level emissions. The District has simply asserted the 

appropriateness of URBEMIS under these proposed ISR rules despite the fact 

that CEQA guidelines published by other air districts such as the Bay Area and 

Sacramento clearly characterize URBEMIS as a conservative sketch-planning 

tool. 

RESPONSE: The District believes that URBEMIS has been improved beyond its 

characterization as a sketch planning tool. Very few of the modules of the 

program are overly conservative. Most modules rely on statewide averages 

extracted from the emission inventory which should not be considered 

conservative estimates. The most important module is the mobile source 

module that includes the same emission factors used to build the emission 

inventory. It does a good job of arriving at a composite emission rate needed for 

a project level analysis. Models can always be made more accurate by 

individualizing more and more input factors. The District believes that URBEMIS 

balances data requirements with reasonable output accuracy and ease of use. 

The travel demand models described by Sierra Research are extremely data 

intense and would be very costly to run for the approximately 1,000 projects that 

will be submitted to the District each year. It is uncertain whether the demand 

models are more accurate for project level analyses than URBEMIS with local 

information.
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

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158. COMMENT: To test the Districtís assertion, Sierra and Dowling performed an 

equivalent, side-by-side analysis of travel and emissions impacts of a typical 

hypothetical ìsuburban fringeî residential project using both URBEMIS and the 

Fresno County regional travel demand model3 (one of several county-level travel 

demand models used to calculate vehicle travel under the SIP. (As in 

URBEMIS, emission impacts were calculated using the Air Resources Boardís 

EMFAC2002 vehicle emission factor model.) 

For our investigation, we considered a 500-unit single family residential project 

located within a 160-acre parcel in an undeveloped/lightly-developed area in 

Clovis northeast of downtown Fresno near the intersection of Minnewawa and 

Shepherd at the edge of the urban area. This was intended to represent a 

typical suburban project at the fringe of an urbanized area and roughly matches 

the default single family residential project density assumed in URBEMIS of 

three units per acre. We looked at travel activity and emissions during Summer 

2010. 

Dowling ran the Fresno COG travel demand model in 2010 for a baseline (no 

project) case and a ìwith projectî case under which the 500-unit project was 

simulated within the affected traffic analysis zone. The detailed travel model 

outputs were then fed into ARBís current EMFAC2002/BURDEN model to 

calculate associated emission impacts with the added project. These results 

were then compared to an URBEMIS simulation of a 500-unit single-family 

residential project in the San Joaquin Valley. The URBEMIS run assumed passby trips were accounted for and assumed an urban land use type. Since we 

simulated a single land use (single family residential) in both the travel model 

and URBEMIS runs, there was no need to apply the ìdouble-countingî correction 

within URBEMIS. 

Our analysis found that URBEMIS estimated daily VMT from this project at 

35,817, compared to 21,886 using the SIP-based travel model, an increase of 

nearly 64%. Emission impacts using URBEMIS were also higher for all 

pollutants and ranged above 50% compared to the SIP-based approach. 

 

3 Regional travel models such as the Fresno County model mathematically simulate vehicle trip movements over a regional 

roadway network by dividing the region into demographically similar “traffic analysis zones” (TAZs) similar to census tracts. 

Demographic and socioeconomic data for each TAZ are used to estimate the number and types of person trips taken between 

each TAZ. These person trips are then translated into vehicle trips (or non-vehicle trips such as walking or bicycle trips) and 

loaded onto a series of roadway links that spatially approximate the actual regional roadway network. 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

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From our analysis of the underlying elements of the two approaches, we have 

preliminarily concluded that the discrepancy in VMT is caused by two related 

factors: 

1. overstated defaults trip lengths for typical suburban residential projects in the 

San Joaquin Valley; and 

2. the inherent underreporting of short trips in household survey data upon 

which average trip length estimates are based. 

The trip generation rates in both models were identically-matched because they 

both rely on the same source, trip generation rates by land use from the Institute 

of Transportation Engineers (ITE). The ITE Trip Generation rates are a more 

accurate representation of vehicle traffic at a particular land use than rates 

based on household travel surveys. The ITE rates are based on actual driveway 

traffic counts at many land uses across the United States, and do not rely on 

self-reporting of trips. Therefore, the use of ITE trip generation rates in 

URBEMIS would accurately represent total trip-making, if the characteristics of 

the higher numbers of trips were identical to the characteristics survey-based 

trips used to determine average trip lengths. However, there is evidence that this 

is not the case, particularly for trip lengths. 

RESPONSE: The District will contact the 8 Valley transportation planning 

agencies to obtain new recommended trip lengths for each county. This 

information will be included in the guidance provided by the District for use in 

URBEMIS. The District is not convinced that using the Transportation Demand 

Model will provide more accurate results.

159. COMMENT: The 2000-2001 Caltrans travel survey included a parallel study of 

actual vehicle movements using GPS units. The vehicle movements from the 

GPS surveys were compared with the self-reported trips from the same 

households. Overall, the GPS surveys resulted in 29 percent more trips than the 

self-reported travel survey results. 

A related study4 identified the characteristics of underreported trips.5 In 

particular, the study found that short trips were much more likely to be 

underreported in travel surveys. Although trips of 10 minutes or less made up 48 

percent of the total sample, the short trips accounted for 71 percent of the trips 

that were missing in self-reported results but identified by the GPS survey. 

Therefore, the short trips were about 50 percent more likely to be missing from 

the travel survey results. 

 

4 Joanna Zmud and Jean Wolf, “Identifying the Correlates of Trip Misreporting – Results from the California Statewide 

Household Travel Survey GPS Study,” 10th International Conference on Travel Behaviour Research, August, 2003. 

5 Joanna Zmud and Jean Wolf, “Identifying the Correlates of Trip Misreporting – Results from the California Statewide 

Household Travel Survey GPS Study,” 10th International Conference on Travel Behaviour Research, August, 2003. 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

 Rule 9510 and Rule 3180

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The URBEMIS model therefore overestimates vehicle-miles of travel by basing 

the total trip generation on the higher ITE Trip Generation rates, but basing the 

average trip length characteristics on a smaller survey-based subset of trips that 

excludes many of the shorter trips. Moreover, it may not be easy or simple to 

correct this discrepancy because unbiased GPS or instrumented vehicle data 

may not be available for the San Joaquin Valley. 

RESPONSE: It seems that Sierra is attempting to discredit URBEMIS by over 

complicating the emission calculation process. The differences between the 

project modeling done by URBEMIS and the regional modeling done by 

transportation demand models are not a valid comparison. With minor 

corrections URBEMIS will produce results very close to the SIP inventory model 

and URBEMIS will continue to be improved with each new version.

160. COMMENT: Although our side-by-side analysis of URBEMIS against a SIPbased approach was limited to a single hypothetical case study of a suburban 

ìfringeî residential development, this case was intentionally selected because in 

addition to being a common example, it also represented conditions (i.e., urban 

edge) where it was believed that travel impacts from both approaches would be 

in closest agreement. Thus, the fact that this case study showed URBEMIS 

overstated SIP-based travel and emissions impacts by over 60% and 50%, 

respectively, casts doubt on the validity of broadly applying URBEMIS under the 

ISR rule as URBEMIS clearly does not produce SIP-consistent emission 

impacts. 

Under both public and private sector work performed throughout California for 

over twenty years, Sierra has found no precedent at any air pollution control 

district that employs a fundamentally inconsistent methodology in implementing, 

monitoring and tracking emission reductions of a district rule from that used to 

calculate its SIP-based commitments. Given the above findings, we believe 

District bears the ìburden-of-proofî that URBEMIS is consistent with SIP-based 

methods. 

RESPONSE: The District disagrees with the assertion that URBEMIS is 

fundamentally inconsistent with SIP commitment methodologies. Since the 

emission inventory is built on a regional basis, the differences in individual 

projects are not addressed. Benefits of on-site measures and surrounding land 

uses are not credited in the inventory. URBEMIS is the only tool that can 

quantify emissions and on-site measures at the project level using readily 

available emission factors and activity data consistent with other inventory 

models. 

The SIP credit expected from the rule comes from two sources ñ off-site 

reductions purchased by the District through its grant programs, and onsite 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

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reductions achieved through project design and infrastructure built into the 

project. The off-site reductions from projects such as diesel engine 

replacements and retrofits are quantified using engine specific emission factors 

and use data and enforced by legally binding contracts. These meet the most 

stringent SIP monitoring and tracking requirements. The onsite measures are 

voluntary measures selected by the project developer that are more difficult to 

quantify and monitor. The District will claim reductions from onsite measures in 

accordance with EPAís Voluntary and Emerging Measures Program. In this 

program, EPA recognized that many nonattainment areas will need to implement 

innovative measures that may not be as quantifiable as traditional SIP measures. 

 Sierra has found no precedent for this at other Districts because the San 

Joaquin Valley is the first to pursue an indirect source program that will be 

claimed for SIP credit. 

161. COMMENT: Residential Fees Appear Understated in the Socioeconomic Report

ñ In addition to the comments summarized above on the URBEMIS model, we 

also have concerns with the fee estimates for typical residential developments 

contained in the Districtís socioeconomic analysis of the ISR rules. Table 16 of 

the socioeconomic report cites ìworst-caseî fee estimates ranging from $856 per 

unit in 2006 to $2,841 per unit in 2010. The supporting text offers no explanation 

of how these estimates were developed. 

Its fundamental flaws notwithstanding, Sierra independently estimated residential 

fees using URBEMIS, and the fee formulas and cost reduction ratios contained 

in the August drafts of Rule 9510 and 3180. For construction emissions, project 

construction equipment emission factors were assumed to equal those of the 

statewide inventory. URBEMIS runs were generated for a 100-unit residential 

project in the urban San Joaquin Valley for calendar years 2006 through 2010 

using model defaults except where noted below. A 4% administration fee was 

assumed and included in our comparisons. Attachment B provides the details of 

our analysis. 

Our analysis found fees were twice as high ($1,607-$7,971 per unit) over the 

same period for a single-family residential development, assuming a default 

housing density of 3 units/acre. When the housing density was doubled (to 6 

units/acre), per unit fees were still over 50% higher ($1,295-$5,556 per unit) than 

those cited (without explanation) in the socioeconomic report. We also 

calculated fees assuming a 93% vs. 7% split between single and multi-family 

units, based on the average number of new single- and multi-family housing 

units permitted in the San Joaquin Valley in 2002 obtained from the California 

Department of Finance (http://countingcalifornia.cdlib.org/title/castat.html). Even 

under these mixed use assumptions, our fee estimates ranged from $1,550-

$7,702 per unit, still nearly twice as high as those in the socioeconomic report. 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

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Thus, we question how the estimates in that report were developed. Our 

analysis suggests that the worst case residential fees are substantially higher 

than those employed in the socioeconomic analysis. If this is correct, then the 

impacts quantified in the study are understated and would need to be revised. 

RESPONSE: Sierra calculated the construction emission fee incorrectly. The 

District-estimated costs will be lower for residential development after the 

analysis is revised to account for the change to the fleet mix and silt loading 

factor. If the trip length and vehicle age changes can be verified, they too would 

lower the impact of the fee.

162. COMMENT: Revenue From Residential Fees Will Dramatically Exceed the Cost 

of Purchasing Mitigation Needed to Meet ISR SIP Commitments ñ A 

spreadsheet was created to prepare an estimate of the revenue that would be 

generated from residential fees for the 2006-2010 period and the cost of 

purchasing the mitigation needed to supply the ISR SIP emission reduction 

commitments during the same time period. Key assumptions used to support 

the development of these estimates include: 

Number of Residential Units Subject to the Rule ñ According to the Construction 

Industry Research Board, construction permits were issued for 34,000 residential 

units in the San Joaquin Valley in 2004. This value represents a mixture of 

single and multi-family homes and was held constant for the years 2006 ñ 2010. 

 Since the ISR rule provides an exemption for residential projects that have less 

than 50 units, this value was discounted by 10% to determine the number of 

units that would be subject to the rule. Using this approach it was determined 

that a total of 153,000 units would be subject to ISR fees between 2006 and 

2010. 

Residential ISR Fees ñ As noted earlier there is considerable difference between 

the worst case fees employed in the Districtís socioeconomic analysis and those 

that result from the use of default assumptions employed in URBEMIS. Given 

the discrepancy (i.e., the fees based on default URBEMIS values exceed the 

Districtís worse case values), four scenarios were used to cover the potential 

range in fees: 

1. One half district worst-case estimate employed in the socioeconomic 

analysis was used to represent the low end of potential fees; 

2. District worse case fees from the socioeconomic analysis represent the 

only per unit fee estimate available from the District; 

3. URBEMIS default values, which are based on a density of 3 homes per 

acre represent a true worst case fee; and 

4. URBEMIS default values adjusted to represent a higher density of 6 

homes per acre represents a lower cost fee. 
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Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

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A summary of the fees that would be required to comply with these scenarios is 

presented in Table 4. It shows that there are considerable differences between 

the worst-case District values and those produced using default assumptions 

from URBEMIS. The URBEMIS based values assume that developers do not 

supply any on-site mitigation and are required to pay the fee-based expense of 

mitigation. We do not know what level of on-site mitigation was included in the 

Districtís estimate. 

Table 4 

Per Unit Mitigation Fees ($) For Each of the Scenarios Considered

Calendar 

Year 

One Half 

District 

Worst Case 

District 

Worst Case 

URBEMIS 

Default 

3du/acre 

URBEMIS 

6du/acre 

2006 468 856 1,545 1,245 

2007 705 1,409 3,088 2,385 

2008 1,001 2,001 4,847 3,584 

2009 1,230 2,459 6,637 4,804 

2010 1,421 2,841 7,665 5,343 

RESPONSE: The District used 3 units per acre for single family dwelling units in 

the socioeconomic impact analysis and continues to arrive at the same numbers. 

 Sierra uses a figure of 34,000 units per year for its estimates of overall potential 

fees. The District used 20,000 units per year based on historical data that 

included years when construction occurred at a much slower rate and population 

projections used for the Districtís attainment plans. We believe that it is 

inappropriate to base future projections on record years that many expect may 

be a bubble. If the growth rates do continue, that means that the impact of 

growth will be much greater than projected and the increased revenue from 

greater participation in the rule by more units would be needed to offset the 

additional emissions.

Residential Revenue ñ This value was computed by multiplying the number of 

units subject to the Rule times the annual fee (i.e., # of units × $/unit = $). 

SIP Emission Reduction Targets ñ The ton/day pollutant specific reduction 

targets established in the SIP for NOx and PM10. The same values were 

employed in the rule making and were documented in Appendix B of the ISR 

rules packet. 

District-Estimated Cost of Reductions ñ The annual pollutant specific $/ton cost 

of reductions specified in the residential fee schedule for Rule 9510. 

Revenue Demanded ñ This value was computed by multiplying the pollutant 

specific incremental ton per day reduction commitment established in the SIP by 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

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the District estimated cost pollutant specific reductions by 365.25 (average days 

per year) by 1.05 (to account for a combination of the administrative fee of Rule 

3180 and an assumed 1% application fee). A key assumption in this calculation 

is that developers did not provide any onsite mitigation, so the District purchased 

all of the reductions needed to satisfy the SIP commitment. 

Attachment C presents a listing of the spreadsheet values developed for each of 

the above parameters for each the four mitigation fee scenarios listed above. A 

summary of the cumulative revenue and mitigation values computed for each 

scenario for the period from 2006 to 2010 is listed in Table 5. It shows that the 

revenue varies depending on the ISR fees established by the scenario and that 

the cost of mitigation is constant. Regardless of the scenario considered, 

incoming revenue exceeds the mitigation expense by a huge margin. As noted 

in the summary, we believe that this is a result of biases built into URBEMIS 

default assumptions and the mitigation fees established for operational 

emissions from residential units. 

Table 5 

Analysis of Residential Revenue and Mitigation Expense ($ in 

millions) 

Fee Scenario Revenue 

Mitigation

Expense 

Unexpende

d 

Revenue 

Relative 

Difference 

(%) 

One Half District 

Worst Case 146.3 38.8 107.5 377% 

District 

Worst Case 292.7 38.8 253.9 754% 

URBEMIS 

Defaults 727.7 38.8 688.9 1,873% 

URBEMIS 

High Density 531.2 38.8 492.4 1,368% 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

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RESPONSE: The table provided above fails to include the average project life of the 

emission reduction projects that will be funded by the revenue collected. This results in 

severely understating the revenue required to purchase emission reductions. NOx 

projects have an average life of 7 years. PM10 projects have an average life of 12 

years. The $/ton number in the fee formula is based on annualized cost divided by 

annual reductions. This allows for comparison of projects with different project lives. 

To arrive at the funding needed to achieve the SIP emission reduction commitment, 

multiply the annual reductions required times the cost per ton of each pollutant. 

The District considers it inappropriate to base housing projections on 34,000 units per 

year. The SIP growth projections are derived from population projections provided by 

the Valley transportation planning agencies. If these record growth rates continue until 

2010, the SIP emission budgets will need to be increased and additional reductions 

would be needed to achieve attainment on schedule. Rule 9510 would provide some of 

these additional reductions if growth exceeds predictions.

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RESPONSE: The tables provided above are based on erroneous information and so 

should be disregarded.

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PETROtech Environmental Solutions 

Date: September 19, 2005 

Good morning. It was good to see you at the Chamber of Commerce Meeting on 

Friday. 

163. COMMENT: My comment regarding SJVUAPCD Rule 9510 is as follows: I would 

like to see Exemption Section 4.1.4 changed to read as follows: 

 ìOil EXPLORATION, Production and Processingî 

The way the exemption reads now, only Production and Processing would be 

covered. 

RESPONSE: The Rule will be amended to read ìOil Exploration, Production and 

Processing.”

164. COMMENT: I also have a comment regarding Air Quality Guidelines for General 

Plans. Seyed, until about 5-7 years ago, residential development was ongoing, 

but it was a fraction of what it is today. I will bet that very few folds from 

Bakersfield paid attention to them when they were drafted. If PETROtech hadnít 

started doing Air Quality Impact Assessments, I would have never thought about 

Rule 9510. But the concern that folds have is based on their fears that 

sometimes Guidelines, or suggested control measures become part of the 

requirements. 

RESPONSE: Comment Noted.
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The California League of Food Processors (CLFP) 

Date: September 15, 2005 

165. COMMENT: CLFPís primary concern is that it is not entirely clear how some of 

the provisions of Rule 9510 will apply to a range of manufacturing applications, 

and the potential compliance costs. Based on a review of the draft CLFP 

suggests that the District amend the proposed rule as follows: 

1. Expand the list of exemptions to include food processing facilities. These 

facilities should be exempted for the following reasons: 

• A large portion of NOx emissions at most food processing plants can 

be attributed to stationary sources such as boilers or dryers, and most 

of this equipment is, or soon will be, subject to new emissions 

reduction regulations. 

• Forklifts, one of the most common vehicles used at processing 

facilities, will soon be subject to new emissions control regulations. 

• Unlike many manufacturing and commercial operations, most food 

processors operate on a seasonal basis, and some only operate for a 

few months per year. This significantly limits the total amount of 

employee and product delivery vehicle traffic on the site. 

• A number of the emissions mitigation options suggested by the District 

are not viable for many food processing facilities. Most processing 

plants are located in rural areas near where the crops are grown. 

Charging workers for parking or providing free bus passes to 

encourage the use of mass transit wonít be effective if there is no 

mass transit available. Cannery workers cannot telecommute or 

teleconference to conduct their duties, and few may want to ride a 

bicycle home after working a shift in a factory. Options for creating 

mixed use facilities may be quite limited. In the case of food 

processors and many other manufacturers, locating new facilities 

based on reducing worker travel will imply hauling the raw product 

further, generating longer trips and additional diesel emissions. The 

economic viability of investing in some energy savings devices may be 

limited by the seasonal nature of the business. So, there may be a 

narrow range of cost effective mitigation measures available to food 

processors. 

RESPONSE: The District will expand the definition to include food 

manufacturing.

166. COMMENT: 2. The District should clarify how baseline emissions will be 

calculated for manufacturing and industrial facilities. 

RESPONSE: Manufacturing and industrial facilities whose primary function is 

regulated by the District will be exempt. For those industries subject to the rule 

such as warehouse distribution centers, only indirect and area source emissions 
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are used for the baseline calculation. A proposed new facility going through the 

CEQA process would prepare an air quality impact assessment. The 

assessment would include an URBEMIS run to quantify area source and mobile 

source emissions. The facility would concurrently apply to the District for an 

Authority to Construct for any stationary source equipment/devices subject to 

permitting. District staff would then estimate stationary emissions. 

167. COMMENT: 3. The District should consider the impact of cumulative regulatory 

costs on industry. Many firms located in the San Joaquin Valley are currently 

expending substantial funds to comply with an array of new air and water quality 

environmental regulations. Rule 9510 will place an additional cost burden on 

industry which will have a direct effect on competitiveness in the global 

marketplace. 

RESPONSE: The District recognizes the cumulative impact of air regulations on 

industry and the major investments made in stationary source emission controls 

in compliance with District rules and regulations and has provided exemptions for 

sources whose primary function is permitted by the District. 

Manufacturers Council of the Central Valley 

Date: September 15, 2005 

On behalf of the Manufacturers Council of the Central Valley, I want to thank you for the 

opportunity to provide comments on the draft rule 9510 (Decreasing Emissionsí 

Significant Impact from Growth and New Development ñ DESIGN) and Draft Rule 3180 

of the San Joaquin Valley Unified Air Pollution Control Districtís Rule 4309. The 

Council represents a number of food processing and related companies in the San 

Joaquin Valley including several who will be impacted by this rule ñ some quite 

significantly and others, quite unexpectedly, unless there are major modifications prior 

to its adoption by the Governing Board later this year. 

These comments are intended to augment those submitted earlier by Rob Neenan of 

the California League of Food Processors and which we fully support, but will not, in the 

interest of time, duplicate. 

168. COMMENT: As I have communicated to you in a telephone conversation and at 

the public workshop, the MCCV is particularly concerned with the lack of clarity 

provided in section 4.1.4 concerning development projects whose primary source 

of emissions are from stationary sources which are subject to rule 2201 or Rule 

2010. At the minimum we would like to see the list of industries expanded to 

include food processing related companies (including snack foods, candy, milk 

and cheese), corrugated box manufacturers, can manufacturers, and wineries. 

However, even this is insufficient to adequately address the concerns unless a 

categorical exemption is provided for these industries because the first question 
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that will be asked is what is the definition of primary? And the subsequent 

question is how will this be determined? For new developments, this will be 

somewhat straightforward: 

A) If stationary source emissions are projected to be greater than 50 percent 

of the construction emissions (as calculated by the yet undeveloped 

emissions calculator) plus the indirect emissions (as calculated by 

URBEMIS) then project is EXEMPT 

B) If less than 50 percent then project is NOT EXEMPT 

However, if the development project is an expansion of an existing facility in a 

jurisdiction which requires discretionary approval, due to its particular ordinance, 

how will the district review the project and calculate the emissions? What will be 

the baseline? Will only that portion of the project that is being expanded be 

subject to the rule? Or will that revert to the policy of the jurisdiction? There are a 

number of questions that arise and this just touches the surface. 

RESPONSE: The rule has been revised to clarify the sources that will be exempt 

from the rule.

Western States Petroleum Association (WSPA) 

Date: September 16, 2005 

The Western States Petroleum Association (WSPA1

) would like to take advantage of 

the brief opportunity made available by District staff for industry to provide comment on 

the June 30, 2005 draft of the proposed Rule 9510 (Decreasing Emissionsí Significant 

Impact from Growth and New Development ñ DESIGN). Our comments on critical 

development issues related to the rule are attached. We look forward to discussing 

these issues with the District during future workshop sessions and if necessary 

providing additional comments should it prove necessary. Preparation of such 

comments is a crucial aspect of the Rule development process and as such, should be 

afforded sufficient time for a thorough review of the draft District document and 

preparation of meaningful comments. 

169. COMMENT: I. Indirect Source Review and the SIP 

In our July 22, 2005 comments, the Western States Petroleum Association 

(WSPA) requested that the District designate requirements derived from the 

proposed regulation as ìnot federally enforceableî. WSPA cited the Federal 

Clean Air Act at Section 110(a)(5)(A)(i) and the California Health and Safety 

Code at Section 39602, which we believe support our request. 

The Clean Air Act (CAA) at section 110(a)(5)(A)(i) states the following: 

 

1 WSPA is a non-profit trade association representing a full spectrum of companies which explore for, produce, 

refine, transport, and market petroleum and petroleum products in the Western United States. 
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“Any state may include in a state implementation plan, but the administrator may 

not require as a condition of approval of such a plan under this section, any 

indirect source review program. The administrator may review and enforce as 

part of an applicable implementation plan an indirect source review program 

which a state chooses to adopt and submit as part of its plan.” 

The California Health and Safety Code at Section 39602 states the following: 

“...the state implementation plan shall only include those provisions necessary to 

meet the requirements of the Clean Air Act.” 

We believe that these sections of the Federal Clean Air Act (CAA) and the 

California Health and Safety Code when considered together clearly preempt 

inclusion of indirect source review programs in the California state 

implementation plan. 

The Districtís response to our comment is contained in Appendix-A of September 

1, 2005 draft of the proposed regulation. The District contends that indirect 

source review programs are required by the CAA, since emission reductions are 

required to attain ambient air quality standards. 

WSPA disagrees. The indirect source review program proposed by the District 

would be enforceable as a ìstate onlyî requirement. Emission reductions from 

the program would still occur and would reduce ambient concentrations to the 

same extent. The designation of indirect source review requirements as 

ìfederally enforceableî or ìnon-federally enforceableî has no effect on the 

attainment of air quality standards. 

In California, inclusion of indirect source review programs in state 

implementation plan is prohibited by H&SC Section 39602 and the CAA section 

110(a)(5)(A)(i). Consequently, WSPA requests the proposed regulation include 

a statement that Rule 9510 is a ìstate onlyî regulation. 

We believe this to be a critical issue since federal requirements contained in 

applicable implementation plans must be included in Title V operating permits for 

major sources. Therefore, under the proposed regulation, mitigation contracts 

entered into by major stationary sources would require approval (or veto) by the 

U.S. EPA. 

RESPONSE: The District disagrees with the interpretation of CAA sections cited 

in the comment. The intent of the section was to prohibit EPA from requiring 

indirect source programs as a Federal Implementation Plan (FIP) measure. 

Since the District requires the reductions for Rule 9510 to meet commitments in 

the PM10 Plan, the rule must be enforceable. The enforcement approach we 
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are proposing is not traditional since this program breaks new ground. The 

emission reduction projects are enforceable by the District through contract legal 

actions, but not EPA. If the reductions from the rule and its measures are not 

achieved, EPA enforcement should require the District to take corrective action 

to make up for the reductions in accordance with CAA milestone requirements. 

Since EPA is precluded from requiring the program, they would need to use 

alternative strategies in the event that a FIP were promulgated.

170. COMMENT: II Rule Applicability 

A. Applicability Trigger Date. 

In our July 22, 2005 comments WSPA proposed that applications for 

development projects filed prior to the rule adoption date be reviewed under 

existing regulations. We continue to believe these development projects should 

be reviewed under existing regulations. Under existing regulations, projects with 

significant environmental effects must include all feasible mitigation. The District 

is provided with notice and an opportunity for commenting on all such projects 

that are conducted within the San Joaquin Valley. Consequently, the District 

either has had or will have an opportunity to comment on these projects and to 

propose mitigation for indirect source and area source emissions. WSPA sees 

no reason why these projects should have to undergo a second round of 

regulatory review. 

B. Indirect Source Review 

As pointed out in our prior comments, Health and Safety Code Section 40717.5 

sets forth guidelines and procedures that must be followed by any air district that 

proposes to adopt or amend a rule or regulation pursuant to Section 40716 or 

Section 40717. 

The requirements contained in Section 40717.5(a) through 40717.5(c) are 

designed to ensure that emissions from indirect sources are properly allocated to 

projects that cause an increase in vehicular activity and to ensure that indirect 

source review requirements are not duplicative of other requirements imposed by 

the District or other agencies. 

The draft version of District Rule does not comply with H&SC Section 

40717.5(a)(1) which limits the applicability of indirect source review to those 

activities that contribute to, ìÖair pollution by generating vehicle trips that would 

otherwise not occurî. 

The District response to WSPA comments (Appendix-A, comment #24, #29) and 

to similar comments submitted by other was that: 

“by their nature new development projects ultimately result in new trips which 

would not otherwise occur”. 
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The District does not provide any information in support of this generalization 

and has not made any attempt to determine which types of activities result in an 

increase in indirect source emissions. In response to other comments the 

District acknowledges that the proposed rule is intended to control growth 

induced emissions from indirect sources and new construction (Appendix-A, 

comment #2, #8, #16). Not all development projects result in growth. 

In our July 22, 2005 comments WSPA requested that Rule 9510 be revised to 

limit rule applicability to indirect source and area source emissions increases. 

We continue to believe that indirect source review programs established under 

authority at H&SC Section 40717 and Section 40715.5 are limited to regulation 

of growth induced indirect source and area source emissions. 

WSPA believes that indirect source emissions and area source emissions that 

are already occurring, or area included in an application for a development 

project filed before the rule adoption date, should be considered existing 

emissions and only emissions increase above existing emissions should be 

subject to Rule 9510 applicability. 

RESPONSE: The rule does not target all new development, but that 

development that results in the generation of at least 2 tons per year of NOx or 

PM10. Certain development, such as an expansion of a manufacturing facility, 

would be exempt if it does not result in and increase of at least 2 tons per year of 

NOx or PM10 through area and mobile emissions. Therefore, the rule accounts 

for the increase in pollution generation from development projects, and does not 

place requirements on those developments that do not result in the increase 

stated above. It is the Districtís position that projects that result in an increase in 

pollution emissions are a part of growth. It would be impractical to determine on 

a case-by-case basis if a project subject to the rule that emits emissions above 

the applicability threshold is or is not a project resulting from growth in the region. 

In regards to projects that have filed for City/County permits prior to 

implementation of the rule, the rule language will be revised to limit the 

applicability to projects that have applied for a discretionary permit prior to 

implementation date but have not yet received approval. 

171. COMMENT: C Proposed Revision to Applicability 

In light of the guidelines specified in the California H&SC at Section 40717.5, 

and District response to comments, WSPA requests that the following 

subsection of the Rule Applicability Section 2.0, be revised as follows: 
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Subsection 2.1

2.1 This rule shall only apply to those elements of a project that require 

discretionary approval and only if those elements are determined to be part 

of a development project that meets the following conditions 

a. The application for the development project is filed on or after the 

effective date of this rule. 

b. The development project results in an increase in emissions of a 

pollutant for which the area is designated as nonattainment for either 

the California, primary ambient air quality standards (CAAQS) or the 

national, primary ambient air quality standards (NAAQS), for ozone or 

PM10. 

c. The development project results in an increase in indirect source or 

area source emissions above previously approved existing emissions. 

RESPONSE: Comment noted. 

172. COMMENT: Subsection 2.1.3

Section 2.1.3 specifies an applicability threshold level of 25,000 square feet for 

the industrial space category. In our prior comments WSPA requested that the 

industrial space category be separated into ìlight Industrialî space and ìheavy 

industrialî space since the vehicle trip ends (VTE) generated by these land use 

categories differ significantly. For example, according to the institute of 

Transportation Engineers, ìTrip Generation Manual (7th Edition)î the light 

industrial land use category generates 6.97 VTE per 1,000 square feet. The 

ìheavy industrialî land use category generates 1.5 VTE per 1,000 square feet. 

The District response to our prior comment was that: 

“Most heavy industrial projects would be exempt from this rule, so distinguishing 

between the different types of industrial would not be productive.” (sic) 

The District fails to explain why heavy industrial sources would be exempt from 

the ruleís requirements. Furthermore, the District is now proposing to apply the 

rule to uncategorized discretionary projects involving more than 9,000 square 

feet. WSPA is again requesting that the ìindustrial useî category be separated 

into ìlight industrialî and ìheavy industrialî categories and that the applicability 

thresholds for these land use categories be established at 25,000ft2

 and 

100,000ft2 respectively. 

RESPONSE: Comment noted. The applicability section of the draft rule will be 

revised to include 25,000 square feet of light industrial, and 100,000 square feet 

of heavy industrial.

173. COMMENT: Subsection 2.1.9 

Delete subsection 2.1.9. The District has not documented why any discretionary 

project, not otherwise included in a section 2.1 land use category and that is 
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greater than 9,000 square feet (~1.4 acre) is automatically presumed to have 

significant indirect source or area source emissions. 

RESPONSE: The District prepared emission estimates for all projects listed in 

the section to determine if they would exceed 2 tons per year of either PM10 or 

NOx. These projects would be required to prepare an air quality assessment 

based on their actual design, on-site measures, and characteristics, so in some 

cases the assessment would determine that no off-site fee is required.

174. COMMENT: Subsection 2.3.2 

Delete Subsection 2.3.2. With the exception of the applicability threshold 

established for ì50 residential unitsî, Subsection 2.3.2 supersedes and 

essentially eliminates the other land use category size thresholds. It can be 

easily argued that any land use involving nonresidential development, (e.g. 

commercial, industrial, medial, etc) could accommodate development projects 

that emit more than 2.0 tons per year of NOx or PM10 (~11ld/day or 0.5 lb/hr). 

The District is also proposing that the amount of required mitigation be based on 

the ability of the property to accommodate future development, whether or not 

such future development is planned or included as part of the development 

project responsible for triggering review under this rule. 

WSPA believes that developers should not have to provide mitigation for 

unplanned projects solely because the property has the potential for future 

development. Future discretionary projects might or might not result in an 

increase in emissions of air contaminants. Consequently, we request that 

Subsection 2.3.2 be deleted. 

RESPONSE: The rule requires the applicant to come to the District at the last 

discretionary approval for the project. For industrial and commercial projects this 

may be a conditional use permit or site plan review. If the use is not known, the 

general trip rate for the expected use is used to calculate the proposed fee 

amount. Then, the applicant can use a fee deferral schedule to allow time to 

identify the actual use. If there were no increase in actual emissions based on 

the use, the applicant could revise the air assessment and the off-site fee would 

be not need to be paid.

175. COMMENT: III Definitions 

WSPA requests that the following revisions be made to the definitions. We 

believe the proposed changes will ensure that the definitions are consistent with 

the stated purpose and applicability of the proposed rule, and will help clarify rule 

requirements. 
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Subsection 3.7

In our July 22, 2005 comments WSPA requested that the definition of a 

development project be revised to exclude projects that require discretionary 

approval but are required solely to comply with a rule regulation or order of a 

public agency. 

For example, District prohibitory rules frequently require that source operators 

install control equipment on emission units such as tanks, steam generators, 

turbines, etc. Installation of the control equipment requires the issuance of an 

Authority to Construct (ATC) permit which typically involves discretionary 

approval of an ìemission control planî and control equipment. Depending on the 

control measure, a source operator could be required to retrofit literally hundreds 

of individual emission units. The District response to our concerns is 

summarized below: 

“The current definition of a development project adequately addresses 

projects that have ancillary discretionary approvals relating to the project. 

The applicability of the rule includes not only discretionary approvals but, 

minimum sizes of projects that must comply with the rule.” 

WSPA is confused by the meaning of the first sentence. WSPA requests that 

the District provide additional explanation of how the current definition of a 

development project addresses ìancillary discretionary approvals relating to the 

projectî. 

WSPA assumes that the language contained in the second sentence of the 

District response means that the District believes that equipment retrofit projects 

(e.g. steam generators, vapor control systems, etc) are too small to trigger rule 

applicability. In some cases this may be true. In other cases the size of the 

control system or facility equipment could easily exceed size threshold specified 

for industrial sources. 

The existing New Source Review Rule (Rule 2201) and many of the prohibitory 

rules adopted by the District recognize the difference between projects initiated 

for development and projects undertaken to comply with regulatory 

requirements. Consequently, WSPA is again requesting that the definition of a 

development project be revised as follows; 

3.7 Development Project: any project, or portion thereof , that is subject 

to a discretionary approval by a public agency, and will ultimately 

result in the construction or reconstruction of a building, facility or 

structure. The Discretionary approval of a project undertaken 

solely to comply with a rule regulation or order of a public agency 

shall not be considered a development project. 
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WSPA also requests that the District staff report clarify the meaning of the word 

ìfacilityî. The use of the word units current context is consistent with the logical 

meaning of the word and implies that the word ìfacilityî means “something that is 

installed or erected to serve a particular purpose”.

RESPONSE: The definition of a development project, in combination with the 

baseline definition (ìarea source and operational emissionsî) effectively 

eliminates the type of projects the author is commenting about. Permitted 

equipment emissions are not included in the calculations. It is the Districtís 

position that all applicable projects that have a baseline above two tons per year 

of NOx or PM10 from the combination of area and mobile sources should be 

subject to the emission reduction requirements of the rule, excepting for stated 

exemptions, regardless of the reason for the project.

176. COMMENT: IV Exemptions

WSPA requests that the exemption section of the rule be revised to include the 

following changes: 

Section 4.1.4

The District has proposed an exemption for a, ìdevelopment project, whose 

primary source of emissions are from stationary sources subject to Rule 2201 

(New and Modified Stationary Source Review Rule) or Rule 2010 (permits 

requiredÖî. WSPA supports the proposed exemption. However, WSPA 

requests that the District clarify several items related to the exemption. 

First, in response to questions raised by stakeholders during the September 1, 

2005 workshop, District staff stated that they though the phrase ìprimary source 

of emissions: meant 51% or more of the emissions. Second, in our reading of 

the proposed exemption we interpret the phrase ìstationary sourcesî to mean air 

pollutant emitting activities, other than indirect sources and area sources; and 

not ìstationary sourceî as defined by District Rule 2201. 

Assuming our interpretation is correct, then the proposed exemption would be 

available to development projects where operational emissions from activities 

other than indirect sources or area sources, comprise 51% or more of the total 

operating emissions from the development project. 

WSPA requests that the District address these issues in their staff report and 

either confirm our understanding of how the exemption will be applied or provide 

additional guidance on how subsection 4.1.1 is to be interpreted. 

RESPONSE: The District has clarified the exemption section to provide more 

specifics on the applicable sources that qualify. 
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177. COMMENT: V Application Requirements

WSPA continues to believe that applications for development projects be 

submitted to public agencies prior to the effective date of the proposed rule 

should continue to be processed under the regulations in effect at the time of 

application submittal. Consequently, we have requested revisions to the 

applicability section of the rule to be revised accordingly. 

Subsection 5.5.5

Delete Subsection 5.5.5. This subsection requires that mitigation, 

monitoring and reporting programs (MMRP) include provisions for failure 

to comply, such as stop work authority, permit revocation, civil 

enforcement, and or administrative appeal. WSPA believes that this 

subsection should be deleted. The District already has authority to 

enforce compliance with rules and regulations adopted by the District. 

RESPONSE: The District will revise the section to refer to Response to 

Comment 180, which states the Districtís authority to enforce provisions of the 

rule.

178. COMMENT: VI Mitigation

WSPA continues to believe that H&SC Section 477.16 and 47717.5 limit indirect 

source review programs to control growth induced emissions from indirect 

sources and area sources. Mitigation should only be required to the extent that a 

development project causes an increase in indirect emissions or an increase in 

area source emissions that would not otherwise occur. As we discussed in our 

prior (July 22, 2005) comments on Rule 9510, WSPA supports the District 

proposal to allow developers to use a combination of onsite mitigations and 

offsite mitigation. Developers should also be able to use offsite mitigation 

resulting from voluntary control of operational emissions from existing 

development projects upon showing that the emission reductions are surplus and 

enforceable. 

In our July 22, 2005 comments WSPA requested that the District provide a 

mechanism to enable developers to receive credit for surplus mitigation. We 

also requested that developers be allowed to provide offsite mitigation by 

controlling emissions from existing sources through enforceable offsite mitigation 

programs. Our prior comments are summarized below. 

1. For construction emissions, if a developer employs an offsite mitigation 

strategy, the emission reductions continue to exist after construction is 

completed. These reductions should be credited to the developer and the 

developer should be allowed to use the reductions for mitigating construction 

emissions from future development projects. 

2. For operational emissions, developers should receive credit for offsite 

emission reductions created through voluntary mitigation activities applied ot 
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previously approved projects. For example, a developer could revegetate or 

reclaim disturbed surfaces in order to reduce fugitive dust. The developer 

could then commit these reductions to construction or operational emissions 

from proposed development projects. 

The District response to our comments was: 

“The District will consider offsite mitigation proposed by a developer on a 

case by case basis.”. 

Based on the Districtís response, WSPA requests that he District revise 

Subsection 6.3 as follows: 

Subsection 6.3

The requirements listed in Section 6.1 and Section 6.2 above can be met 

through any combination of onsite or offsite mitigation. Developers may 

also satisfy the requirements of Section 6.1 and 6.2 by providing 

mitigation made available by reducing emissions from offsite activities. 

“the District will consider offsite mitigation proposed by a developer on a 

case by case basis.”

RESPONSE: The District has partially addressed the authors concerns in the 

September 1, 2005 draft Rule 9510 version in section 7.4. 

7.4 The developer shall receive credit for any off-site mitigation measures that 

have been completed and/or paid for, prior to the adoption of this rule, if the 

following conditions have been met: 

7.4.1 The prior off-site mitigation measures were part of an air quality mitigation 

agreement with the APCO; or 

7.4.2 The developer demonstrates to the satisfaction of the APCO that the offsite emission reduction measures result in real and surplus reduction in 

emissions. 

The District will be implementing an off-site emission reduction program that uses 

fees from the rule to achieve the tonnage reduction required. The District believes 

that this is the most efficient and effective way to acquire, achieve and track off-site 

emission reductions. Off-site emission reduction projects that have been 

coordinated and approved through the District by means of an Air Quality 

Mitigation Agreement have been thoroughly analyzed and will be administered by 

the District. Therefore, emission reductions from Air Quality Mitigation Agreements 

are appropriate to use in the ISR program. However, although a project applicant 

may be able to find and fund off-site emission reduction projects, it is undesirable 

to have an applicant administer off-site emission reduction projects to be reviewed 

by the District on a case-by-case basis. For the purposes of consistency, 

efficiency, and enforceability, it is most appropriate for off-site emission reduction 

projects to be administered under the same program. 
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Applicants and the general public may propose projects for funding through the 

Districtís off-site emission reduction program, and the program will have annual 

review and reporting available to the public.
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PUBLIC: 

Ann M. Gallon 

Date: September 6, 2005 

I attended the Sept. 1 Workshop in Bakersfield. This was my first involvement with the 

Air Pollution Control District. I planned to address you as a private citizen, but all the 

developers with lengthy statements were a bit intimidating ñ especially their off screen 

head nodding and grimacing. They obviously were distressed to have any ìcontrolsî of 

their development projects come under discussion and regulation. 

179. COMMENT: What I would have said is that I applaud your plans to contain 

pollution in our Valley, and I would urge you to stick to your guns ñ or even 

tighten up on some rules. As an aside, my stepson once sued the EPA on 

behalf of the Canadian people for not enforcing their own regulations and 

causing acid rain which drifted over Canada. The Canadian government 

prevailed in calling the EPA into action.

RESPONSE: Comment Noted.

180. COMMENT: Applicability to developers of 50-plus residential homes gives them 

wiggle room to design multiple projects so they could fall under that 50-unit 

threshold. Another concern of mine is that developers of fewer than 50 units 

may be less sophisticated in the industry and may create more pollution than you 

will prevent in the larger developments. I urge you to consider dropping the 

applicability to 25 units. 

RESPONSE: The 50-unit applicability for residential units was specifically 

chosen for the following reasons: 

1. Based on the Districtís data on the number and units of development 

occurring in the valley, a threshold of 50 units would capture the majority of 

the pollution generation from new developments while keeping the number of 

projects for District assessment at a practical level. 

2. Modeling shows with no on-site measures, 50 units may generate 

approximately 2 tons per year of NOx in 2006 

3. This threshold, with the associated ëpenetrationí of the rule, achieves the 

emission reductions committed to in the PM10 and ozone plans. 

The District will be vigilant to prevent ëpiecemealingí of projects to evade 

compliance with the rule. Rule 9510 ß2.3.1 and ß2.3.2 specifically address the 

issue of contiguous or adjacent properties. In addition, District Rule 1110 

(Circumvention) states:

A person shall not build, erect, install, or use any source operation, the use 

of which, without resulting in a reduction in the total release of air 
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contaminants to the atmosphere, reduces, dilutes or conceals an emission 

which would otherwise constitute a violation of Division 26 of the Health and 

Safety Code of the State of California or of these Rules and Regulations. This 

rule shall not apply to cases in which the only violation involved is of Section 

41700 of the Health and Safety Code of the State of California or of Rule 4102 

(Nuisance of these Rules and Regulations. Violation of this rule is a 

misdemeanor pursuant to the provisions of Section 42400 of the Health 

and Safety Code of the State of California. 

(Sections are bolded for emphasis) 

181. COMMENT: To give you an example of development traffic, in July we endured 

seven days of 8am-4pm diesel truck traffic past our home. Trucks were hauling 

fill dirt to one large residential lot around the corner from us. The whole week we 

had to remember to close our front windows against the diesel fumes, noise, and 

dust clouds rising from dirt shoulders. 

Mind you, this was a HOT July and we were trying to use just our evaporative 

cooler (needs open windows to vent) to save money. When the truck traffic 

continued into the next week I finally called our Supervisorís office to complain 

and ask if the trucks could travel on the arterial roads instead of on our 

residential street. I wrote down the following IN and OUT times one morning for 

30 minutes: 

IN OUT 

 9:35 

9:39 9:41 

9:44 9:48 

9:51 10:01 

9:58 10:09 

10:05 

By Wednesday, when Supervisor Watsonís field rep, Trice Harvey, arrived at our 

house to look into our complaint, wouldnít you know it ñ the truck traffic was over. 

 And he said he couldnít tell trucks which roads to take to a construction site. 

We were going to be pretty much stuck with traffic when there is building going 

on in our area. 

RESPONSE: The authorís comments on truck traffic is noted. In addition, the 

Districtís Regulation VIII (Fugitive PM10 Prohibitions) contain prohibitions 

concerning the emissions of dust from construction sites, bulk materials hauling 

and carryout/trackout. Although these are requirements, certain developments 

on occasion do not comply with the rule. The District is responsible for enforcing 

compliance with the rules and employs field inspectors for these issues; 

however, it is not always possible to catch violations as they occur at the widely 

disbursed construction sites within the Valley. The District maintains a complaint 
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hotline for the public to call when they see a violation of the Districtís rules, 

including violations of Regulation VIII and Rule 4102 (Nuisance). 

County of Residence Toll Free Number 

San Joaquin, Stanislaus, Merced (800) 281-7003 

Madera, Fresno, Kings (800) 870-1037 

Tulare, Valley portion of Kern (800) 926-5550 

182. COMMENT: SoÖ please stand firm with the building industry ñ and with Cal 

Trans who seemed to think they were exempt from air pollution regs ñ and letís 

ask everyone to take their share of the responsibility for cleaning up OUR AIR. 

RESPONSE: Comment Noted.

183. COMMENT: PS That argument of one man about mitigation fees of $2000 

pricing thousands of people out of homes in California was statistical but not 

logical. If they can only qualify for a $300,000 home and the $2,000 fee is going 

to put them ìout of the market,î then they can just drop their expectations and 

builder options and by a home for $295,000. Also, it is bad financial planning to 

try to buy the most expensive house you can qualify for. 

RESPONSE: Comment Noted.
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ENVIRONMENTAL

Clean Water & Air Matter (CWAM) 

Date: September 15, 2005 

Thank you for the opportunity to comment on the above mentioned draft rules as 

proposed for the District. In addition to my verbal comments made during the 

September 1, 2005 workshop, I wanted to touch on the following topics. 

184. COMMENT: No net gain does not equal a loss. When we begin to mitigate 

more pollution than we create while adding new pollutants, we will finally begin to 

achieve reductions in total pollutant levels. Until this happens, we are still adding 

to the pollutant total without ever actually subtracting anything. 

RESPONSE: The authorís comment does not hold when applied to mobile 

emissions. Emissions from mobile sources are reducing over time due to 

regulations on new vehicles. For example, no net increase in the number of 

vehicles would result in lower future emissions from vehicle turnover to cleaner 

fleets. The District takes this and other factors into account in the PM10 and 

Ozone attainment plans. The plans identify growth and reductions in source 

categories. The plans quantify the reduction from current District rules and 

proposed rules as well as state and federal regulations, and then model future 

emissions to determine if the District may reach attainment for applicable 

pollutants. For development projects, the ësubtractingí occurs through on-site 

and off-site emission reductions and mobile emission reductions over time. The 

PM10 and Ozone plans have determined that the ISR rule, in addition to existing 

and future rules and conditions, will help the Valley clean the air and reach 

attainment. 

185. COMMENT: The Californian Environmental Quality Act (CEQA) is very clear 

when it comes to mitigation measures and how they must be available for public 

review before the decision makers (who also must have them for review) vote on 

the project. In reference to Section 5.0 Application Requirements it is imperative 

that the mitigation measures not be deferred until after project approval.

In Sundstrom v. County of Mendocino (1st Dist. 1988) 202 Cal. App. 3d 296 [248 

Cal Rptr. 352] the court ruled that the deferral of an environmental assessment 

(in this case a hydrological study) until after the project approval violated CEQAís 

policy that impacts must be identified before project momentum reduces or 

eliminates the agencyís flexibility to subsequently change it course of action. In 

addition, because the permit authorized the applicant himself, subject to planning 

staff approval, to conduct the required analysis, the county had violated CEQAís 

requirement that an agencyís decisionmaking body must ultimately review and 

vouch for all environmental analysis mandated by CEQA. (202 Cal.App.3d at 

306-308] 
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RESPONSE: Rule 9510 ß5.0 has been revised to make application and review 

of ISR projects concurrent with or prior to the CEQA process a project would 

undertake with the local land use agency. It should be noted that the ISR 

program does not involve discretionary approval and therefore not itself a CEQA 

process. Additionally, compliance with District Rules is a requirement, not 

mitigation. 

186. COMMENT: Furthermore, local agencies are instructed to integrate the CEQA 

review process into the other planning and environmental review procedures 

they are legally or otherwise obligated to conduct. To the maximum extent 

feasible, CEQA procedures and other procedures should run concurrently, rather 

than consecutively. (Pubic Resources Code Section 21003 subd. (a).) 

Regarding Comment #50- CEQA is a state law and does not vary by jurisdiction. 

 This comment should be changed.

RESPONSE: Concerning timing of application to the ISR program, see the 

response to comment above. Although CEQA itself does not vary by jurisdiction, 

the implementation of the time requirements does. CEQA provides the master 

timeline in the framework of minimum and maximum times for various activities. 

Each jurisdiction has the authority to implement CEQA with procedures that 

reduce a particular activityís time to far below the maximum time allowed under 

CEQA. Therefore, each jurisdiction may have a different timeline for project 

review and approval based on individual procedures that comply with CEQA. 

The District will not change response to comment #49 from the June 30, 2005 

workshop.

187. COMMENT: While there are exceptions, contextually, the agency is creating a 

broad, sweeping plan to cover many projects, including but not limited to, 

commercial, industrial and residential. Consideration of public involvement in the 

process would facilitate information regarding mitigation at the beginning of the 

process, rather than after the project has been approved. 

This issue, when addressed early in the application process can carry over to all 

levels of approval, rather than have the public or decision makers continually 

have to request effective, enforceable mitigation as part of the project not only 

with the lead agency, but the responsible agency as well. 

RESPONSE: While the District concurs that public involvement is important, 

and will amend the rule and staff report to include mechanisms for public 

involvement, the ISR program is not a CEQA process. ISR is a ministerial action 

not subject to CEQA, per PRC ß21080 Division Application to Discretionary 
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Projects; Nonapplication; Negative Declarations; Environmental Impact Report 

Preparation (b)(1):

(b) This division does not apply to any of the following activities: 

(1) Ministerial projects proposed to be carried out or approved by 

public agencies.

188. COMMENT: There should be some method for the dispersal of funds to account 

for project area pollutants and either the on-site or near-by mitigation funded by 

said project. Money going into the big pot in Fresno and ending up who knows 

where, by some group that has asked, will not address source point pollution. 

RESPONSE: The District will track the location, by City and County, of the 

projects funded through the off-site emission reduction fund. The District will 

also complete annual reporting of how much, where and what tons of reductions 

occurred, which will be made available to the public. The District is unsure of the 

authorís intent with the comment on point source pollution. This rule does not 

attempt to address emissions from source points. However, if an off-site 

emission reduction project is a point source, that information will be available in 

the Districtís annual reporting, and upon request.

189. COMMENT: Regarding the pollution prevention proposals, it would a be 

beneficial to have some long-term pollution reduction by means of phytoremediation. Trees are known, quantifiable and effective pollution reduction 

technique. The use of trees should be encouraged to help cleanse the valley air. 

 This mitigation could be achieved with tree farms using mitigation banking 

credits for a controlled system of distribution.

RESPONSE: The District is aware of the air quality benefits of trees. 

Specifically, trees reduce ambient temperature (reducing formation of ozone), 

cool housing and AC units (reduce energy consumption), cool cars and paving in 

parking lots (reduced evaporation of volatiles6

). It is also known that some of 

these benefits are quantifiable. The District would entertain a tree program as 

an off-site project if it meets the requirements set forth in the rule, including cost 

effectiveness.

190. COMMENT: Enforcement of air quality mitigation measures is the responsibility 

of the District. I mention again in these comments a critical issue: Currently the 

district is notified of a projectís start when there is a complaint filed by a member 

of the public. While this is not always the case, this type of complaint based 

enforcement system is inefficient as best and at worst, a heavy burden on the 

public to be responsible to see that the approved mitigation measures are 

actually followed or the best possible attempt to prevent more air pollution

 

6 McPherson, E. Gregory. Sacramento’s parking lot shading ordinance: environmental and economic costs of compliance. 

Landscape and Urban Planning 57 (2001) 105-123 
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RESPONSE: The District is notified of the start of a project through several 

means. The CEQA process allows an opportunity for the District to review and 

comment on development projects within the Valley. The District also receives 

Dust Control Plans (DCP) and Notifications from project developers as a 

requirement of Regulation VIII (Fugitive PM10 Prohibitions). It should be noted 

that District rules are requirements and not mitigation, and the District has the 

authority to take enforcement action for non-compliant projects. The District is 

notified of Regulation VIII non-compliance through mandatory self-reporting 

(DCPs, etc.)

191. COMMENT: Additionally, it would be beneficial to both the public and all 

decision makers reviewing environmental air quality assessment to have the 

inputs for the baseline for the modeling runs at the beginning of the reports and if 

the report is quoted in the document, in the text of the document as well. 

RESPONSE: The preparation of environmental CEQA documents is the 

responsibility of the lead agency. The District will make project specific 

information available to the lead agency and the public (See Response to 

Comments #8 and #59), but the District cannot prescribe a format that lead 

agencies must follow. 

Kern-Kaweah Chapter of the Sierra Club 

Date: September 15, 2005 

Here are the comments of the Kern-Kaweah Chapter of the Sierra Club. Our chapter 

has 1,600 members and there are a few thousand other Sierra Club members in the 

San Joaquin Valley. 

My copy of the September 1 draft is post marked August 26. Does the Air District Staff 

believe in summer vacation and Labor Day Weekend? 

Instead of including our July 15, 2005 letter by reference, we put chunks of it in this 

letter and put the rest at the end of this letter. 
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GENERAL REMARKS ON THE RULE 

 

192. COMMENT: At the September 1 workshop I learned that air quality regulations 

forbid the development industry from sheltering those of us with low or even 

moderate incomes. At previous workshops I learned that air quality regulations 

prevent farmers from feeding us and prevent various industries from affording to 

employ us. Perhaps the best plan is for residents to continue to suffer asthma 

and for those who die prematurely of heart or lung disease to be eulogized as 

"heroes of the economy". 

 

RESPONSE: Comment Noted.

193. COMMENT: Our previous comments applauded 6.1 "The developer shall 

mitigate 100% of the construction emissions associated with its development 

project." Construction emissions do not last as long as operational emissions, 

but exposure to pollution is the same whether the pollution is from construction 

or from operation; thus, mitigation for construction emissions should be briefer 

and equally vigorous as construction from operation. 

 

RESPONSE: The draft rule does not require 100% mitigation from construction. 

 Rule 9510 Section 6.1.1 states that exhaust emissions must be reduced from 

the statewide average by 20% for NOx and by 45% for PM10.

194. COMMENT: We object to having developers choose consultants to prepare an 

Air Impact Assessment; we think consultants will not be chosen by developers 

unless they make findings as favorable to the developer as possible. The air 

impact assessment must be produced by the District or by a consultant of the 

District's choosing. Developers shall pay for the air impact assessment. 

 

RESPONSE: The District will require all inputs and assumptions for the Air 

Impact Assessment, per the requirements of the rule. This information is 

contained in the application. The District will review the inputs, assumptions and 

modeling for accuracy, and will require additional information and/or revision for 

items that are inaccurate, inconsistent or unjustified. The modeling must be 

replicable and reasonable, and the emission reduction measures selected must 

be incorporated into the project and enforced through either other public agency 

requirements or by a District Monitoring and Reporting Schedule.

195. COMMENT: I did not find anything about mitigation by replacing inefficient 

equipment. Our July 18, 2005 letter said: "If existing equipment is replaced 

because it is worn out, no mitigation credits must be given unless the new 

equipment is better than other equipment that could be used. The mitigation 

credit must be limited to the difference in cost between the cheapest equipment 

that could have been obtained and the lower emitting equipment that was 

obtained." 
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RESPONSE: It is unclear if this comment pertains to on-site emission reduction 

or off-site emission reductions. For on-site emission reductions from 

construction, no justification is necessary to achieve credit for cleaner engines. 

For off-site emission reductions, the reductions will be achieved through the ISR 

off-site funding program, which will follow criteria and established emission 

reduction calculations. For programs that replace existing engines with new 

engines, the old engine must be operational and have a remaining useful life that 

is the basis of the emission reductions. How those emission reductions are 

calculated depends on the type of project and the specific components of the 

project. See the Staff Report and Appendix E ñ Cost Effectiveness Analysis for 

additional information on off-site emission reduction projects.

GENERAL REMARKS ON THE NOx REDUCTION OF THE RULE 

 

196. COMMENT: Rule 9510 sets the goal of reducing emissions from projects that 

produce more than two tons per year of NOx by half. There is no justification for 

mitigating only 50% of emissions. Reducing NOx by half, rather than complete 

reduction, would be acceptable if all trips to or from the regulated development 

projects were to other projects that also reduced their NOx emissions by half. For 

the most part, rule 9510 regulates new development projects on the edge of 

town; most of the trips associated with those projects will be to or from long 

established business, recreational or work sites that have never paid any air 

quality mitigation fee and have no on site mitigation. If the trip to those sites had 

been made from an older development nearer the established sites, air 

emissions would be less. That is why the goal should be complete mitigation for 

all polluting emissions from all sources including Area Sources. 

 

RESPONSE: The goal of the rule is to achieve an emission reduction from 

growth that was identified in the PM10 and ozone plans. The District calculated 

the level of reduction needed on a per-project basis that would achieve the 

emission reduction committed to in the PM10 and ozone attainment plans. The 

rule sets levels that are in compliance with state law regarding indirect source 

regulations and are feasible to achieve. Charging a fee for trips that are the 

responsibility of another new source or an existing indirect source would not 

equitably distribute responsibility for existing and new vehicle trips as required by 

H&S 40717.5. The 33% accounts for declining mobile emissions over a ten year 

period ñ see the fee formula. 

197. COMMENT: How much NOx will future vehicles make? When will increased 

gasoline prices cause us to use fewer light trucks and more efficient sedans? 

The staff report, bottom of page 3, says cars are predicted to decrease pollution 

between 1994 and 2003. Has this occurred? 
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RESPONSE: NOx emissions were reduced substantially between 1994 and 

2003; however, certain heavy-duty diesel vehicles showed an increase during 

that period due to use of computer controls that enabled the vehicles to meet 

emission tests but emit at higher levels during actual operation. This problem 

has now been corrected. The amount of future NOx is identified in Attachment 2 

of Appendix B ñ Emissions Reduction Analysis for Rule 9510 (ISR). Studies of 

the effects of gasoline prices indicate that very large price increases would be 

needed to significantly change travel behavior.

198. COMMENT: Here are examples where rule 9510 may cause someone to pay 

more than their share to mitigate air quality. Someone might move to a newly 

built home in order to take a job near that home; they would create emissions 

only when they drove to established business, recreational sites not I their new 

neighborhood or visited persons living a distance from their new home. A retired 

person who moved to a newly built home in order to be near the people they 

most often visit would generate fewer emissions than most of those who move to 

a newly built home. These exceptional cases do not seem to justify making this 

rule weaker or more complex. 

 

RESPONSE: The District recognizes that there are a variety of factors that 

affect emissions from new projects. It is infeasible to model or account for all 

this variation at the development stage. In addition, there is no guarantee that 

those cases of less-emissions, same-house would occur over the ten years 

assessed by the rule, let alone the life of the project. The District considers the 

URBEMIS model to be the most accurate model available that meets the needs 

of the ISR rules. More information on URBEMIS may be found in the Staff 

Report and in Appendix D ñ Recommended Changes to URBEMIS. 

APPENDIX A: RESPONSE TO COMMENTS 

 

Industry and Public: 

199. COMMENT: Comment 1 Each individual development must be held 

responsible for all the travel it generates. When persons move to the edge of 

town from a site closer to the center of town, their old home is occupied; the 

emissions of their old home do not change. The emissions of their new home 

must all be mitigated. Consider a mitigation fee for those who move into an 

existing home that is further from the center of the City than their previous home. 

 

RESPONSE: The District agrees that each individual development should be 

responsible for the trips it generates, but also must consider that the reductions 

required must be fair and feasible. The District may consider a future rule 

revision or other program to address existing indirect sources. 
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200. COMMENT: Comment 7 If the emissions of a structure continue beyond ten 

years, so should the mitigations. Can the air district prove that cleaner cars will 

allow us to attain PM 10 and ozone standards in ten years and prevent increased 

emissions thereafter? What if attainment in does not permanently occur? 

RESPONSE: The mobile source regulations currently in place and scheduled to 

go into effect in the next few years provide for a cleaner car and truck fleet well 

into the future even when accounting for projected growth in trips and vehicle 

miles traveled. Continued diligence will be required to ensure maintenance of 

the standards. This is accomplished through a maintenance plan that will 

provide the reductions needed to keep emissions from increasing due to growth.

201. COMMENT: Comments 11 and 18 Response 11 correctly anticipates new 

standards. Response 18 implies that PM 2.5 is not likely to be one of those new 

standards because attaining PM 10 standards will control PM 2.5. So far it looks 

like a lot of PM 10 is geologic particulates that are not as harmful as the smaller 

particles included in PM 10. The smaller particles, PM 2.5, are products of 

combustion or are a combination of ammonia and NOx. If so, decreasing PM 10 

will not decrease PM 2.5. 

RESPONSE: The rule is designed to reduce both fugitive dust PM10 and 

combustion PM10. Most engine replacement and retrofit projects provide NOx 

and PM10 benefits. Most of the combustion PM10 is comprised of the fine 

fraction less than 2.5 micrometers in diameter. The PM10 standard cannot be 

achieved without fugitive PM10 reductions and so must be part of this rule.

202. COMMENT: Comment 25 Some recreational space reduces motor vehicle use, 

such as a park that many persons can easily access on foot or by bicycle. Some 

recreational space increases motor vehicle use, such as a motocross facility or 

any facility that attracts visitors from a distance. 

RESPONSE: Recreational uses that attract vehicle trips and exceed the 

operational threshold of 2 tons/year of NOx or PM10 will be subject to the rule. 

Uses that attract pedestrians or bicyclists would not trigger the rule. 

203. COMMENT: Comments 67 and 70 The Socioeconomic impact of these rules 

must include the decrease in the cost of illness and death that this rule will 

cause. The cost of illness includes pain, suffering, premature loss of income, 

absence from school, absence from work and loss of companionship. To 

estimate the incidence of these events, please consult physicians who have 

reported such figures to CARB; for example, there are 106,695 workdays lost in 

Kern County due to PM10. 

 

RESPONSE: See Response to Comment #98.
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204. COMMENT: Comment 87 I do not bicycle on very hot days and most folks stay 

indoors those days. When I do bicycle on days of elevated ozone levels, I 

expose myself to ozone rather than use my car to raise ozone levels for 

everyone else. There are, or would be if bike paths are constructed, many 

persons as virtuous as I. 

 RESPONSE: Comment Noted. 

205. COMMENT: Comment 96 Mitigating air pollution as close as reasonably 

possible to the source of the pollution may be more acceptable to the public than 

distant mitigation; however, insistence on mitigating in the immediate area can 

be used as a way to make mitigation more difficult. 

 

RESPONSE: See Response to Comment #188.

206. COMMENT: Comment 98 Limiting mitigations to those that match the source of 

the mitigations can be used as a way to make mitigation more difficult. A ton of 

NOx generated by Valley traffic is the same as a ton of NOx mitigated by 

reducing Valley generation of electricity from fossil fuel. 

 

RESPONSE: See Response to Comments #188.

207. COMMENT: Comment 102 As inflation and the completion of the most cost 

effective measures occur, how will mitigation fees be increased? 

 

RESPONSE: Off-site fees are dictated by the amount it would take to offset a 

ton of the applicable pollutant. The District has included the fee schedules for 

2006 through 2008. If an adjustment is required, for example, if during 

implementation the District finds that there arenít enough off-site projects 

achieve the set cost-effectiveness, the District can amend the cost-effectiveness 

schedule in the rule through a rule amendment. Rule amendment procedures 

are standard, and must be adopted by the Board.

EPA

 

208. COMMENT: Comment 7 p. A 25 Is EPA completely satisfied with this response 

to their thoughtful comment? 

 

RESPONSE: See Response to Comment #5 for additional comments to the 

issue of surplus mitigation.

209. COMMENT: Comment 18 p. A 28 A high density residential project far from 

jobs, shopping, schools and other services does not decrease emissions except 

for trips between residents. A high density project that enables residents to 
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access jobs, shopping, schools and other services on foot, bus or bicycle 

decreases emissions and should get credit for on site mitigation. 

 

RESPONSE: See Response to Comments #7 and #9 for discussion on 

URBEMIS on-site measure quantifications.

210. COMMENT: Comment 36 p. A 30 We are pleased that low-income housing is 

not exempt from the rule. Low-income housing often has elderly residents whose 

diseased lungs and hearts are especially susceptible to air pollution. 

Government can help pay the small cost of clean air for poor people if the voters 

wish. 

 

RESPONSE: Comment noted.

Remarks On The Wording Of The Rule

 

211. COMMENT: 1.1 

Does the reference to "particulate matter" include PM 2.5 and the smaller 

particles such as PM 0.1 that can be inhaled from ambient air into the blood 

stream? Comments 11 and 18 apply: Response 11 correctly anticipates new 

standards. Response 18 implies that PM 2.5 is not likely to be one of those new 

standards because attaining PM 10 standards will control PM 2.5. So far it looks 

like a lot of PM 10 is geologic particulates that are not as harmful as the smaller 

particles included in PM 10. The smaller particles, PM 2.5, are products of 

combustion or are a combination of ammonia and NOx. If so, decreasing PM 10 

will not decrease PM 2.5. 

RESPONSE: See Response to Comments #57 and #65 for the Districts 

response to which pollutants, and how much reduction was chosen.

212. COMMENT:2.1.8 

Comment 25 applies: Some recreational space reduces motor vehicle use, such 

as a park that many persons can easily access on foot or by bicycle. Some 

recreational space increases motor vehicle use, such as a motocross facility or 

any facility that attracts visitors from a distance. 

RESPONSE: The Air Quality Impact Assessment uses URBEMIS to calculate 

mobile source emissions from each project. URBEMIS uses trip generation 

rates for each type of use and allows for different trip rates to be used for 

different types of recreational facilities. This will allow for an accurate 

differentiation between the uses mentioned in the comment.

213. COMMENT: 2.3.1 & 2.3.2 

We wish to thank whoever brought to your attention that the draft of 9510 dated 

June 30, 2005 did not address cumulative impact of adjacent development. 
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These paragraphs at least call our attention to this failing. As I understand 2.3.1 

& 2.3.2, if I had one piece of land big enough to build 147 units, I could build 49 

residential units that rule 9510 would not apply to. Then, in lieu of inheritance I 

could give each of my two children land so that they each build 49 residential 

units. We would thus build 147 residential units without having to comply with 

rule 9510. No one would ever know if I benefited financially from my children's 

property. 

RESPONSE: See Response to Comment #214.

214. COMMENT: The only way I can write rule 9510 to avoid this problem and avoid 

high administrative cost is to say that even one house will be subject to this rule 

but that small tracts can pay a mitigation fee, rather than have their emissions 

determined and mitigated. 

 

Our comments of July 18, 2005 on 2.2 and 4.2 of rule 9510 are included here: 

 

The rule should apply to even the smallest projects so that developers do not 

piece meal. Building many little developments can have a major cumulative 

effect; CEQA has cumulative impact concerns. Among the 6 30 05 comments 

that supported not omitting projects that make only two tons of NOx and only 

two tons of PM 10 per year was one by a City of Clovis employee who forecast 

developments of 49 houses. Dr. Nipp has commented on over a dozen housing 

developments that somehow had just under ten tons per year of NOx and just 

under ten tons per year of ROG. Several years ago several natural gas 48 or 49 

MW cogeneration power plants were built in Kern County; 50 MW plants had to 

be reviewed by the California Energy Commission. 

 

These exemptions could also increase administrative costs and give some 

developers an advantage over others. What happens if soon after a new 20,000 

square feet store is occupied, it fails or for some other reason becomes general 

office space? The store has paid a fee that it would not have paid if it had been 

built as general office space. 

 

Please disregard our next paragraph of July 18, 2005; it is in error. It read: The 

rule could say that if a project is small, and no developer has enough land at the 

site to develop any other source of emissions small projects could be exempted. 

 

RESPONSE: The District added rule language that prohibits piecemealing of 

projects to evade the applicability threshold. In addition, the District will 

implement procedures for identifying non-compliant projects and will have staff 

assigned to ensure compliance with the rule. 
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215. COMMENT: 3.22 & 3.23 

In view of the decrease in emissions that will result from replacing some of our 

private auto travel with public transit, we might need to mitigate emissions form 

public transit construction less stringently than emissions from other 

construction. Since building new roads leads to more car and truck use, and 

therefore more pollution, road building emissions must be strictly mitigated. 

 

RESPONSE: The District has determined that transit projects involving 

construction in excess of 2 tons total of NOx and PM10 combined should remain 

subject to the rule.

216. COMMENT: 4.1.4 

Agriculture should be among these exemptions provided it is regulated under 

other rules as provided in the SB 700 series of bills. 

RESPONSE: See Response to Comment #45. 

217. COMMENT: 4.3 

Transportation Projects should not be exempt from the requirements of the rule. 

If more roads, as opposed to mass transit, are made available, more people will 

use the roads rather than mass transit. This is called induced traffic. If bicycle 

paths and mass transit become available, some of us will choose to use them. 

 

RESPONSE: The District specifically exempted transportation projects from the 

ëoperational emission reduction requirements of the rule. Transportation projects 

are subject to the construction emission reduction requirements of the rule. 

Although not part of this rule, the District may consider including operational and 

area requirements in a future rule or rule amendment.

218. COMMENT: 5.0 

CEQA provides that information such as provided by an AIA be available to the 

public and to decision makers before any discretionary action is approved. 

Please change the first sentence of 5.0 so that if complies with the CEQA. 

 

RESPONSE: The District intends to submit air quality impact assessments to 

local agencies so that they may use them in their CEQA documents prepared for 

the land use approval. Although the rule provides analysis and emission 

reductions that will be useful in the CEQA process, the main focus of the rule is 

attainment of PM10 and ozone standards. (See Response to Comments #8 and 

#59). Also keep in mind, the ISR program is not discretionary approval and 

therefore not a CEQA process (See Response to Comment #187). 
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219. COMMENT: 5.1 

Any consultant involved by any developer must be identified. 

 

RESPONSE: The District will amend the rule language to include the above.

220. COMMENT: 5.4.1.1 

Does this say that any mitigation required by laws existing before a development 

occurs can not be counted as an indirect source mitigation under rule 9510? We 

hope the answer to this question is "yes". The Air District intends to obtain 

agreed upon mitigations, as 5.5.6 shows. 

RESPONSE: Any on-site measure that is quantifiable through the APCO 

approved model shall be counted towards on-site emission reduction. Only 

measures that do not have an enforcement mechanism through city/county or 

other requirements will be required to complete a monitoring and reporting 

schedule with the District. 

221. COMMENT: 6.1.1 

Are a 20% reduction in NOx emissions and a 45% reduction in PM10 emissions 

all developers are reasonably capable of, or is it just enough to attain a CAA 

standard deadline? Why does the Federal Clean Air Act allow areas like 

Bakersfield, that fail to attain daily 8 hour ozone standards on more days than 

any other place in the USA, to employ RACM, not BACM? 

 

Does the Air District intend to wait for 2007 to complete a plan to attain federal 8-

hour ozone standards? If so, how do you justify this to children who can not play 

outdoors when there is too much ozone in the air? 

RESPONSE: The emission reduction requirements were based on the 

availability of new technology that can achieve the results allowing for a 

reasonable period of time for equipment owners to phase in the cleaner 

equipment considering the high cost of large construction equipment and its long 

useful life. 

The District is working as rapidly as it can on 8-hour ozone planning. We are 

currently working with a Northern California 8-hour State Implementation Plan 

Working Group to coordinate the modeling and other efforts to get the plans out 

on time. The atmospheric modeling now beginning is needed to identify the 

reductions required. The District continually works to identify control measures 

that can be adopted to achieve reductions as early as possible. The Districtís 

goal is to complete the 8-hr plan in the spring of 2007.
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Appendix C: On-Site Mitigation Checklist

 

222. COMMENT: Except for push mowers, this is identical to our July 18, 2005 letter. 

Local office holders must be tested on various parts of appendix C and recalled if 

they fail. 

 

RESPONSE: Comment Noted.

223. COMMENT: 1 Bicycle Infrastructure: 

Class II bike lanes on arterial/collector streets are more dangerous than class I. 

RESPONSE: Comment noted. The corresponding URBEMIS mitigation 

component states ìPercent of Arterials/Collectors with Bike Lanes: Or Where 

Suitable, Direct Parallel Routes Exist.î ëBike Laneí is the Class II category. ëBike 

Pathí is the more desirable Class I category. In addition, the District believes 

appropriate ìcomplete streetî planning adequately addresses the issue of safety.

 

224. COMMENT: 7 Pedestrian Oriented Infrastructure: 

Place store entrances just off the sidewalk. Folks dislike walking across busy, unshaded parking lots. 

RESPONSE: The District will add the above to the items listed under 

ìPedestrian Oriented Infrastructureî

 

225. COMMENT: 16 Parking 

Some employers offer employees about $40/month in lieu of free parking; 

employees who accept are left to choose among transit, bicycle, car pool, 

walking etc. 

RESPONSE: This type of measure is appropriate for projects where the building 

tenant is known at the time the project review is accomplished. It could be 

included as an employer Transportation Demand Management Program. The 

emission reductions will depend on individual measures that the employer will 

implement and the pedestrian, bicycle, and transit service at the project site.

 

226. COMMENT: 25 Energy Efficiency 

Provide space for outdoor passive solar clothes dryers, once known as wash 

lines and space for portable indoor drying racks. 

Shaded, reflective or white roofs are not as good as the items you mention, but 

they are better than dark, unshaded roofs. Roof overhangs that shade windows 

in summer decrease heating costs. 

Water heater should be located in most sinks so that a central hot water heater 

does not need to be turned on just to get hot water in one sink. 

Provide fluorescent lighting, including compact bulbs. 
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If air conditioners, rather than swamp coolers, are insisted upon, they should be 

placed on the ground, north of the building, in the shade. 

 

RESPONSE: The items listed above relate to the individual components that 

may increase energy efficiency. The On-Site Emission Reduction List contains 

the following measure: 

Increase the building energy efficiency rating above what is required by 

Title 24 requirements. This can be accomplished by any combination of 

the following (this list should not be considered comprehensive): 

The list mentioned is an ëidea listí to inform the applicant of the variety of 

components that are available. The District will amend the list as additional 

energy-saving components are identified.

227. COMMENT: 47 Landscaping 

At least let folks know push mowers are available at stores and they lower body 

weight. 

 

RESPONSE: The District has a Public Information Department that has an 

excellent track record in getting the word out on the many options available for 

individuals to reduce their air impacts. 

Appendix F: Socioeconomic Analysis

 

228. COMMENT: We agree that the affect of rule 9510 on home prices and rents will 

be small if the assumptions of the study by "Applied Development Economics" 

are made. We think that in general and in the Valley's housing market, supply 

and demand have a much greater effect on price than costs do; therefore we 

think the rule will have negligible effect on prices. 

 

Our remarks on comments 67 and 70 above apply. 

 

RESPONSE: Comment Noted.

229. COMMENT: If rule 9510 results in increased use of public transit, it will 

decreases the amount of money spent on gasoline. Sixty per cent of America's 

crude oil is imported. If residents divert money from partly imported gasoline to 

local products and to paying the wages of those employed by public transit, it will 

increase the gross domestic product of the Valley except for a decrease in 

money going to local oil drilling and refining. Would the net of this have a 

significant effect on Valley incomes? What if we decrease crude imports without 

decreasing local crude oil production? 

 

RESPONSE: The District believes that although the implementation of Rule 

9510 will have some economic impacts, it also will have a potentially significant 

beneficial economic effect on the San Joaquin Valleyís economy through funding 
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off-site emission reduction projects. For example, a PM10 project may be paving 

unpaved roadways. This could result in an increase in jobs. However, the 

District does not speculate on the ruleís potential secondary impact on the 

petroleum industry due to increase or decrease in fuel use. 

230. COMMENT: If society desires a certain rate of home ownership among those 

with lower income, or otherwise wishes to increase the standard of living for 

those with lower income society can subsidize their mortgage payments, pay 

more for their work or tax them less and tax others more. 

 

RESPONSE: Comment Noted. 

Environmental Defense 

Association of Irritated Residents 

Steven and Michele Kirsch Foundation 

Union of Concerned Scientists 

Latino Issues Forum 

Relational Culture Institute 

Center for Energy Efficiency and Renewable Technologies 

Fresno Metro Ministry 

Natural Resources Defense Council 

Merced/Mariposa County Asthma Coalition 

Earthjustice 

Date: September 14, 2005 

We represent national, regional and local environmental, public health, and community

organizations that are actively engaged in finding solutions to the San Joaquin Valleyís 

air pollution. We have been closely following the districtís development of DESIGN 

(Rule 9510) and the accompanying air impact assessment application fee (Rule 3180). 

We believe that together these rules have great potential for reducing and mitigating air 

pollution that accompanies growth in the Valley. 

As noted in the comment letter many of us signed regarding the June 30 version of the 

draft rules, we believe the two rules have great potential for improving the quality of life 

for everyone in the Valley, and not just through the direct benefit of cleaner air. The two 

rules can increase opportunities and incentives for affordable housing located near 

jobs; reduce the climb in daily vehicle miles traveled; reduce traffic congestion and 

encourage viable transportation choices; protect agricultural lands from encroachment; 

and be the first words in a regional conversation about how to best accommodate 

growth without increasing pollution. 

We believe that the September 1 version of the draft rule is an improvement over the 

June 30 draft. We are pleased that the latest draft has more detail. We also appreciate 

the districtís effort to prevent gaming of the rule by ensuring that projects on contiguous 
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or adjacent property under common ownership of a single entity will be treated as one 

project. However, we believe that overall, the current version still falls short of ensuring 

that the DESIGN program meets its full potential to reduce air pollution. 

We urge the district to consider the following comments and make appropriate changes 

to the September 1 draft rule before submitting it to the board for approval.

231. COMMENT: Section 2.0 Applicability. The thresholds for the size of 

developments covered by the rule are too high. The thresholds appear to be set 

to cover developments that would be expected to produce two or more tons per 

year of pollution. Neither the staff report nor the draft rule provides any strong 

logic for ignoring developments that produce less than 2 tons but at least 1 ton 

per year. Leaving tons on the table unnecessarily reduces the ruleís 

effectiveness and eliminates cost-effective opportunities to protect public health. 

The thresholds should be set to cover developments that produce 1 ton or more 

per year. 

RESPONSE: See Response to Comments #57 and #180 for the Districtís 

determination of the applicability level.

232. COMMENT: Section 3.5 Definition of Baseline Emissions. The wording for this 

definition needs to be clearer. The current wording leaves it unclear whether the 

first year of the project or any phase of the project is included in the baseline 

emissions. Additionally, as we discuss below, the emissions covered should 

include reactive organic gases. 

RESPONSE: See Response to Comment #91.

233. COMMENT: Section 3.14.7 Definition of Recreational. The definition is too 

inclusive. It should be refined to ensure that facilities within this category 

generate similar levels of pollution. A community park, for instance, does not 

generate the same amount of pollution as a movie theater. Movie theaters and 

fitness clubs are probably more appropriately included in commercial categories. 

RESPONSE: See Response to Comment #88.

234. COMMENT: Section 4.1.5 Housing Projects Exemption. This definition needs to 

be clearer. It appears that the district is interested in exempting housing that 

would qualify as affordable housing and that is receiving public funding to ensure 

its status as affordable housing. However, the definition as it now stands could 

be interpreted as offering a much broader exemption, and including any housing 

that receives federal- or state-backed loans. The definition should be more 

clearly and narrowly stated to reflect the districtís intent. 

RESPONSE: The District has eliminated this exemption in the proposed rule. 
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235. COMMENT: Section 5.3 Air Impact Assessment (AIA), Section 5.4 On-site 

Mitigation Checklist, Section 5.5 Mitigation Monitoring and Reporting Program 

(MMRP), and Section 5.6 Air Impact Mitigation Fee Deferral Schedule (FDS).

The rule should overtly guarantee public access to documents and information 

required by these sections. While state law would allow public access, to ensure 

that access is available in a timely fashion, and not subject to delays resulting 

from the need to file public records act requests, the rule should specifically note 

that the district will make available to the public the application and information 

described in sections 5.3, 5.4, 5.5 and 5.6 within two weeks of the districtís 

receipt and review of these documents. 

RESPONSE: The ISR program will not be a discretionary program, and thus is 

not subject to the public review requirements of CEQA (See Response to 

Comment #187). The District will be including mechanisms for public agency 

and public review of certain ISR documents. See Response to Comment #8 for 

Public Agency access. See Response to Comment #59 for public access. See 

Response to Comments #178 and #188 for public access to the Off-Site 

Program.

236. COMMENT: Section 6.1 Construction Equipment Emissions. Construction 

equipment emissions reduction goals should be set as a minimum standard for 

individual vehicles, not as a fleet average. We applaud the districtís inclusion in 

this draft of a section specifically requiring reductions in construction vehicle 

tailpipe pollution. Uncontrolled construction equipment represents some of the 

dirtiest and most health-threatening mobile emissions. However, the fleet 

average approach suggested in the draft rule fails to protect those working and 

living closest to, and therefore at most risk from, the emissions from individual 

pieces of the dirtiest uncontrolled equipment. We recommend requiring a 

minimum level of control for all construction equipment that limits emissions to 

those achieved by Tier 1 controlled construction equipment, in combination with 

a fleet average as described in the rule. 

RESPONSE: The District does not have the authority to set emission standards 

for mobile sources. Please see Response to Comment # 6 for additional 

information.

237. COMMENT: Section 6.2 Operational and Area Source Emissions. The rule 

should fully mitigate the most health-threatening indirect source pollutants. We 

are pleased that the district has clarified that PM 2.5 will be included in the 

emissions controlled. However, we continue to believe that, like the June 30th

version, the September 1 draft rule does not provide the level of health 

protection warranted. The rule addresses only oxides of nitrogen (NOx) and 

coarse and fine particulate matter (PM 10 and PM 2.5). It should also require 

mitigation of reactive organic gases (ROG), a precursor that leads to the 
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formation of ground-level ozone. Mobile sources account for almost 40% of ROG 

emissions in the San Joaquin Valley. 

Additionally, the draft rule continues to call for reducing just a third of the NOx 

emissions and half of the operational PM 10 emissions over a ten-year period. 

This approach leaves the majority of pollutants produced by a new development 

unmitigated. The district staff has arrived at these discounts short of 100 percent 

mitigation to avoid double counting. It has thus assumed that every vehicle 

traveling to or from a new development is starting or ending the trip at another 

new development also covered by the rule. This is an unreasonable expectation. 

At the very least, if the district believes it must discount mitigation levels to avoid 

double counting, it should arrive at the proposed discount in a logical, defensible 

fashion. The district should engage the URBEMIS update advisory group, 

composed of professional air regulators familiar with the model and the literature 

on land use and transportation, to define a reasonable and defensible default 

number for discounting trips to avoid double counting. 

RESPONSE: See Response to Comments #57 and #65 for the Districtís 

response on the amount, pollutant type, and calculations for emission 

reductions. By ensuring that the program does not mitigate more than half the 

trips generated by the project, the District is ensuring compliance with the H&S 

Code that requires indirect source programs to differentiate between new and 

existing trips. URBEMIS accounts for all trips related to a development but does 

not differentiate between new and existing trips. When analyzing a project in an 

area that is planned but not built out, some of the trips will be going to new 

development that will also be subject to the rule in the future and other trips will 

be going to existing development not subject to the rule. Both types of trips 

should not be charged to the project being analyzed so that impacts are fairly 

allocated among all uses

238. COMMENT: Additionally, the mitigation requirement should extend beyond ten 

years. One need not look very far in California to see that most buildings 

continue to attract pollution-emitting traffic for much longer than ten years. The 

DESIGN rule should more faithfully reflect the real life ofóand real life of 

emissions fromóthe development project. We suggest a minimum of 30 years, 

which assumes a development will last at least as long as a standard mortgage. 

The rule should also recognize that developments have variations in emissions 

over their lives. This change reflects the changing demographics in housing 

developments over time, and the changing uses of buildings, including 

commercial and industrial buildings. The rule should include that variation in 

emissions modeling and the district should require a review of actual emissions 

from projects at least once every five years to ensure that the match between 

emissions and required mitigation is strong. 
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RESPONSE: See Response to Comment #198 for the Districtís response on 

variations. 

239. COMMENT: Section 10.2 Administration of Mitigation Funds. Mitigation 

measures should be permanent. The district, in Section 10.2, the draft rule 

indicates that it will use mitigation fees to fund quantifiable, enforceable and 

surplus NOx and PM10 emissions from off-site mitigation projects. All mitigation, 

whether on-site or off-site, should be permanent as well. 

Some mitigation measures, such as the incremental improvement from retrofitting 

a diesel truck engine, are not permanent. The incremental improvements last only 

as long as that retrofitted or replaced engine is in operation and go away once a 

newer, cleaner engine replaces that older engine. Yet the pollution those 

measures intend to mitigate do not change. Therefore, short-term mitigation 

measures should be sequenced with other mitigation measures, to ensure that 

mitigation lasts as long as the mitigated pollution does. 

 RESPONSE: The District disagrees with this commenterís characterization of 

permanent reductions. The key is that all equipment and vehicles wear out and 

must be replaced over time. If the old equipment is replaced at the end of its 

useful life with new equipment that is as clean or cleaner than the old equipment 

then the emissions continue at the same or lower rate and the reductions should 

be considered permanent. If the equipment were replaced with dirtier equipment 

at the end of its useful life, the reduction would not be permanent. The District 

uses project life estimates from the Carl Moyer program that are very conservative. 

 For example, ag IC engines are allowed a project life of 7 years, but our 

experience in the grant program has shown that many engines are operated for 20 

to 30 years. 

240. COMMENT: The District Should Develop Long-Term Measures with Mitigation 

Funds, and Invite the Public to Participate. 

The September 1 draft, like the earlier drafts, is vague and uncertain about how 

monies will be spent and leaves critical decision-making about spending the 

funds up to the air district. The district should use the Carl Moyer program as a 

model. Broad areas for expenditure are outlined in the statute establishing the 

Moyer program, and then the lead regulatory agency, after public workshops and 

hearings, adopts guidelines about the specifics of how the Moyer funds will be 

spent. 

Mitigation funds collected from developers for off-site mitigation should help 

create and fund long-term air pollution mitigation measures. Improving 

transportation choices by investing in vanpool systems and providing incentives 

for affordable housing located near existing job sites are examples of just two 
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long-term measures. The district needs to engage the public, local government 

and other agencies to identify the best uses of mitigation funds to get these longterm emissions reductions. The rule should establish development of a public 

process and guidelines for determining the best uses of the mitigation funds. 

RESPONSE: Long-term measures as described in the comment may be funded 

if they can meet the reductions are quantifiable and enforceable. There will be 

opportunities to add programs once the rule is adopted.

241. COMMENT: Include Discussion of Health Costs of Air Pollution. 

In the staff draft report, in the draft rules, and in the socioeconomic analysis, 

there is no indication that air pollution costs money. There is no indication that 

the main purpose for this and every other rule adopted by the air district is to 

make the air healthier to breath. The air district staff, and by extension the air 

district board, does itself and the cause of clean air a disservice by continually 

ignoring this critical issue. Dirty air is costly. It impairs health and costs residents 

in time lost at work, in lost productivity, in lost days at school, in direct health care 

costs. It also costs crop damage and materials damage. More than a decade 

ago, researchers established that not meeting federal ambient air quality 

standards in the Los Angeles air basin costs that region at least $9 billion a year. 

We continue to be disappointed by the district staffís refusal to note in its rule 

reports and socioeconomic analyses that air pollution has costs, especially 

health costs. We urge the district to use this rulemaking opportunity to bring to 

the publicís attention the very real health costs associated with air pollution. 

Ample information is available from the California Air Resources Board and other 

state and national environmental agencies to help district staff provide sound 

information about the costs of air pollution. 

RESPONSE: See Response to Comment #98. 

242. COMMENT: Finally, we applaud the district for its decision to develop rules 9510 

and 3180, and we appreciate the district staffís hard work on this rule. We hope 

to see another draft that incorporates the changes we have recommended. We 

also look forward to further discussions with the district about the rule as it 

moves forward. 

RESPONSE: Comment Noted.

Yokuts Group, Sierra Club 

Date: September 1, 2005 

243. COMMENT: While I think several of the commentators today made the point, I, 

as a long-time low-income person, would like to tell your socioeconomic that, 

yes, a $100 increase in rent or mortgage, DOES make a difference. Obviously 
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he has never been in the position of not having enough money to pay all of his 

bills. 

Iím not qualified to comment on the rest of the presentation, but that I do know 

about. 

RESPONSE: The authorís comment on the impacts of pricing on low income 

persons is well taken. It is important to point out that the rule exempts housing 

of less than 50 units; and it applies to only new housing developments. In 

addition, the impacts discussed in the Socioeconomic Analysis are the unlikely 

ëworst-caseí scenario where all developments contain no sidewalks, all 

residential is built at 3-units per acre, there are no transit services, bike racks or 

any other measure that reduces emissions. The District believes that the 

exemptions and applicability stated above as well as the more likely, less-fee 

scenario reduce the impacts on housing affordability beyond that stated in the 

Socioeconomic Analysis.

244. COMMENT: And I would agree with Kathryn that the cost of *not* doing anything 

about pollution has to be spelled out. All too often only the costs of rectifying our 

past neglect are all we look at. That, actually is only relevant when comparing 

the benefits of several alternatives for cleaning our air. 

RESPONSE: The District believes that rule by rule analysis of the health 

benefits of individual rules is not appropriate; however, the cumulative benefit of 

the Districtís attainment strategy on health is extremely important. The District 

will be revising the Staff Report to include discussion on health impacts as 

addressed in the PM10 and Ozone plans.
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Late Comments 

City of Manteca 

October 7, 2005 

245. COMMENT: The Manteca City Council recently adopted the attached Resolution 

opposing the adoption of Draft Rules 9510 and 3180. We are aware that we live 

in a non-attainment area. We are also in favor of lowering the amount of PM-10 

and NOx emissions. However, before the assessment of additional fees occurs, 

a program needs to be presented that will show how the funds collected will be 

used to lower the emissions. 

We will be happy to reconsider our actions when a positive plan has been 

presented. 

RESPONSE: The District has provided a clear and positive plan for use of fees 

in Appendix E ñ Cost Effectiveness Analysis for Rule 9510. Detailed program 

guidance for new programs will be developed once the rule is adopted.

Resolution No R2005-446 

A RESOLUTION OF THE CITY COUNCIL OF THE 

CITY OF MANTECA OPPOSITION THE SAN JOAQUIN AIR 

POLLUTION CONTROL DISTRICT DRAFT RULES 9510 AND 3180 

246. COMMENT: WHEREAS, the San Joaquin Valley Air Pollution Control District 

has proposed two potentially costly draft rules (9510 and 3180) that will impose 

new taxes and fees on every new office building, home, retail store, restaurant 

and other private development in the counties of Fresno, Madera, Merced, Kern, 

Kings, San Joaquin, Stanislaus and Tulare; and

RESPONSE: The Draft Rules 9510 and 3180 do not apply to all new 

development, nor does it place fees on all development. Please refer to 

Response to Comment #170. See also Response to Comments #46, #51, and 

#78, and #175.

247. COMMENT: WHEREAS, every Central Valley Resident will pay for these new air 

district taxes and fees, as business pass along their new costs through increased 

prices on goods and services; and

RESPONSE: Please refer to Response to Comments #89, #138, and #180.
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248. COMMENT: WHEREAS, adding tens of millions in new taxes and fees every 

year will hamper the Valleyís economic development and job-growth in a region 

that has among the highest unemployment rates in California; and

RESPONSE: Please refer to Response to Comment #137. See also Response 

to Comment #55 and #102. 

249. COMMENT: WHEREAS, the air district taxes and fees will exacerbate the 

housing affordability problem in the Central Valley by adding more than $50 

million in new costs each year to the construction of homes and apartments, 

driving up the cost of mortgages and rents and pricing thousands of families out 

of homes they can no longer afford; and 

RESPONSE: Please refer to Response to Comment #137. 

250. COMMENT: WHEREAS, the air district taxes and fees would fund the expansion 

of a bureaucracy that lacks accountability or any specific plan to improve air 

quality. The air district has failed to present a plan of what improvements to the 

regionís air quality it will make with its new taxes and fees; and 

RESPONSE: Please refer to Response to Comments #101, #104, #108, #113, 

#114, #115 and #137, and #188. Also refer to Rule 9510 Section 10.

251. COMMENT: WHEREAS, the air district has failed to provide scientific evidence 

to support the new taxes and fees it is proposing; and 

RESPONSE: Please refer to Response to Comments #135. In addition, 

considerable study and analysis went into the Districtís PM10 and ozone 

attainment plans, which identified reductions from Indirect Sources as a 

requirement for attainment of the PM10 and ozone standards.

252. COMMENT: WHEREAS, the air district taxes and fees will interfere and conflict 

with local government land use authority by creating a new and competing 

review process, that will erode local control over land-use decision making; and 

RESPONSE: Please refer to Response to Comments #8, #81, #133, and #140. . 

 In addition, please refer to the Staff Report Section (B) District Authority and 

Limitations, and Section (D) State Environmental Review – CEQA

253. COMMENT: WHEREAS, the air district land-use power is redundant and 

conflicts with existing environmental rules and safeguards, such as the California 

Environmental Quality Act and existing air quality and environmental reviews.
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RESPONSE: The District does not have land-use power, nor does it desire to 

usurp the local land-use authorities discretion on land use power. Please refer to 

Response to Comments #8, #81, #133 and #140. In addition, please refer to the 

Staff Report Section (B) District Authority and Limitations, and Section (D) State 

Environmental Review – CEQA

254. COMMENT: NOW, THEREFORE, BE IT RESOLVED that the City Council of the 

City of Manteca opposes the San Joaquin Valley Air Pollution Control District 

Draft Rules 9510 and 3180

RESPONSE: Opposition noted. The District notes that the substance of the 

letter is unsupported - see Response to Comments #245 to #253. 

STOP the AIR BOARD TAX – We’ll All Pay! (Coalition) 

A.L. Gilbert Company. 

African American Chamber of Commerce of San Joaquin County 

Building Industry Association of Central California 

Building Industry Association of the Delta 

Building Industry Association of Kern County 

Building Industry Association of San Joaquin Valley 

Building Industry Association of Tulare and Kings Counties 

Business, Industry & Government (BIG) Coalition of the South San Joaquin Valley 

Cal Bennett’s 

California Black Chamber of Commerce 

California Building Industry Association 

California Business Properties Association 

California Manufacturers & Technology Association 

California Mexican American Chamber of Commerce 

California Restaurant Association 

California Retailers Association 

California Senior Advocates League 

California Taxpayers’ Association 

Central California Hispanic Chamber of Commerce 

Constructing Industry Air Quality Coalition 

Consulting Engineers and Land Surveyors of California 

Consumers First, Inc 

City of Avenal 

City of Clovis 

City of Escalon 

City of Lodi 

Coalinga Area Chamber of Commerce 

Greater Bakersfield Chamber of Commerce 
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Greater Merced Chamber of Commerce 

Howard Jarvis Taxpayers Association 

J.F. Shea Co., Inc 

KRC Safety 

Kern County Farm Bureau 

Kern County Hispanic Chamber of Commerce 

Kern County Taxpayers Association 

International Council of Shopping Centers 

Lemke Construction 

Lodi Association of REALTORS, Inc 

Lodi Chamber of Commerce 

Madera Hispanic Chamber of Commerce 

Matthews Homes 

National Association of Industrial and Office Properties – California Chapters 

National Coalition of Hispanic Organizations 

National Tax Limitation Committee 

Orange Belt Board Realtors 

Raymus Homes 

Rainscape 

Reason Foundation 

San Joaquin Valley Black Chamber of Commerce 

San Joaquin Chamber of Commerce 

Scolari Tile & Co., Inc 

Self-Help Enterprises 

Sharp Insurance & Bonding 

Small business Action Committee 

The Hispanic Chamber of Commerce of Stanislaus County 

Tulare and Kings Counties Builders Exchange 

The Tulare/Kings Hispanic Chamber of Commerce 

Tulare Chamber of Commerce 

Tulare County Association of REALTORS 

Tulare County Farm Bureau 

Valley Taxpayer’s Coalition 

Valley Outdoor Advertising 

Visalia Chamber of Commerce 

255. COMMENT: On behalf of small business, labor, taxpayer, local government, 

community and other diverse organizations, we strongly oppose draft Rules 9510 

and 3180. These measures will impose new taxes and fees on Central Valley 

residents, hurting our economic development and job-growth but offering no 

accountability and no guarantees of cleaner air. 

RESPONSE: New Taxes: The Draft Rules 9510 and 3180 do not apply to all 

new development, nor does it place fees on all development. Please refer to 
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Response to Comment #170. See also Response to Comments #46, #51, and 

#78, and #175.

Hurt Economy: Thee is no factual evidence that implementation of the rules will 

hurt the economy. Please See the Staff Report and Appendix F ñ Socio 

Economic Impact Analysis for more information. Please refer to Response to 

Comment #137. See also Response to Comment #55 and #102. 

Accountability: The authorsí statement is untrue. Accountability is built into the 

rule. Refer to Rule 9510 Section 10. See also Response to Comments #101, 

#104, #108, #113, #114, #115 and #137, and #188. 

256. COMMENT: The proposed rules will impose a slew of new taxes and fees that 

will apply to every newly constructed property ñ offices, homes, retail stores, 

restaurants and small or large businesses. Combined, these taxes and fees are 

expected to cost hundreds of millions of dollars over the next five years. This fee 

will price tens of thousands of families out of housing they can afford and worsen 

the housing crisis in the Central Valley. 

RESPONSE: New Taxes: The Draft Rules 9510 and 3180 do not apply to all 

new development, nor does it place fees on all development. Please refer to 

Response to Comment #170. See also Response to Comments #46, #51, and 

#78, and #175.

Costs of Rule: The District analyzed the calculations that the BIA provided via 

Sierra Research, and concluded that the analysis was flawed and inaccurate. 

Please see Response to Comments #161 and #162. 

Housing Impact: The Socioeconomic Impact Analysis did not find a significant 

impact to housing builders or housing buyers/renters. See the Staff Report and 

Appendix F for more information. In addition, please see Response to 

Comments #137, #41, and #53. 

257. COMMENT: By imposing similar costs on new businesses, these measures will 

hamper the Valleyís economic development and job-growth which will be 

particularly disastrous in a region that has among the highest unemployment 

rates in California. 

Ultimately, these additional costs will be passed along to consumers, meaning 

we all pay. 

RESPONSE: The District disagrees that the rule will hamper economic 

development in the Valley. Please see Response to Comment #55.
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258. COMMENT: Most troubling is the fact that there are no accountability 

mechanisms built into the draft Rules and no guarantees that the funds will 

actually improve the air quality. The Air Board has failed to present a detailed list 

of the specific air-quality-improvement activities it intends to pursue and has 

failed to provide credible scientific support for the proposed rules. 

RESPONSE: Accountability: The authorsí statement is incorrect. 

Accountability is built into the rule. Refer to Rule 9510 Section 10. See also 

Response to Comments #101, #104, #108, #113, #114, #115 and #137, and 

#188. 

Credible Scientific Support: Again, the authorsí statement is not valid. The 

District has been developing the rule over several years, involving extensive 

research and documentation. Please refer to Response to Comments #135, the 

Staff Report, and associated Appendixes. In addition, considerable study and 

analysis went into the Districtís PM10 and ozone attainment plans, which 

identified reductions from Indirect Sources as a requirement for attainment of the 

PM10 and ozone standards. 

259. COMMENT: Lastly, the new bureaucracy will interfere with local government 

land use decision-making by creating a new and unworkable process that erodes 

local control over land-use planning. This will stall much-needed new housing, 

businesses and other economic growth in our communities. For example, the 

draft Rules are redundant and even conflict with existing environmental rules and 

safeguards, such as the California Environmental quality Act and Existing air 

quality and environmental reviews 

RESPONSE: First, 100% of off-site fees will be used for off-site emission 

reduction programs only. None of the off-site fees will be used for District 

administration or other uses. Second, the rules are not redundant, conflicting, 

unworkable, or otherwise interfere with the environmental review process, 

existing laws, or the land-use agenciesí discretionary land use authority. 

The District does not have land-use power, nor does it desire to usurp the local 

land-use authorities discretion on land use power. Please refer to Response to 

Comments #8, #81, #133 and #140. In addition, please refer to the Staff Report 

Section (B) District Authority and Limitations, and Section (D) State 

Environmental Review – CEQA

260. COMMENT: Draft Rules 9510 and 3180 are misguided solutions that will hurt 

every Central Valley Resident, potential new homeowners and renters and the 
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economic climate in the Central Valley. For these reasons we the undersigned 

oppose draft Rules 9510 and 3180 and urge your opposition as well. 

RESPONSE: Opposition Noted. The District notes that the substance of the 

letter is unsupported ñ See Response to Comments #255 to #259 above. 

Merced County Economic Development Corporation (MCEDCO) 

Dated September 13, 2005 

Received September 19, 2005

261. COMMENT: On behalf of the Merced County Economic Development 

Corporation (MCEDCO) we urge members of the San Joaquin Valley Air 

Pollution Control District (Air Board) to oppose draft Rules 9510 and 3180. The 

draft Rules will impose hundreds of millions in new fees on residential, 

commercial and business developments, discourage investments and job growth 

throughout the Central Valley and hinder affordable housing without any 

guarantee that they will directly improve the situation 

RESPONSE: The factual evidence supports the Districtís position that the Draft 

Rules will have a less-than-significant effect on the housing market in the Valley, 

and a minimal effect on other land use projects. In addition, there is no 

supporting evidence that the rules would ëdiscourage investments and job 

growthí. Finally, there is solid scientific evidence that the rules will benefit the air 

quality of the valley. The District has been developing the rule over several 

years, involving extensive research and documentation. Please refer to 

Response to Comments #135, the Staff Report, and associated Appendixes. 

Accountability is built into the rule as draft Rule 9510 Section 10. In addition, 

considerable study and analysis went into the Districtís PM10 and ozone 

attainment plans, which identified reductions from Indirect Sources as a 

requirement for attainment of the PM10 and ozone standards. See also 

Response to Comment #55. 

262. COMMENT: MCEDCO is a private/public nonprofit 501c4 organization that offers 

economic development expertise to the incorporated cities and unincorporated 

communities within Merced County. MCEDCOís primary mission is to promote 

and facilitate net, new employment growth, encourage increased corporate 

investment and assist in the diversification of the Merced County economy. 

MCEDCO focuses on retention and expansion of existing businesses, small 

business start-up, and recruitment of new enterprises 

MCEDCOís efforts serve the entire community by encouraging new jobs 

opportunities for residents, increased sales and improved productivity for local 

business and new tax and fee revenues to support programs and services 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

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offered by the cities and county. Without new business investment, employment 

growth is not realized and subsequently residential growth falters. 

California is already recognized as a costly business location. Businesses 

frequently cite high fees and development expenses as a disincentive to new 

investment. The rising cost of property in tandem with additional fees and high 

operating costs jeopardizes potential wealth generation opportunities. 

Environmental issues, in particular clean air for the Valley, are important matters 

to prospective business investors. However, MCEDCO is concerned that the 

draft Rules may not directly improve the situation and may deter residential and 

other construction that is often considered a primary trigger to economic 

development. 

RESPONSE: The District recognizes the authorís concerns. However, the 

District has provided detailed calculations of the emission reductions predicted 

by the rule as well as potential off-site emission reduction projects available, 

Appendix B and E respectively. In addition, considerable study and analysis 

went into the Districtís PM10 and ozone attainment plans, which identified 

reductions from Indirect Sources as a requirement for attainment of the PM10 

and ozone standards. See also Response to Comment #55. 

263. COMMENT: The draft Rules may also thwart affordable housing, a top priority in 

the Merced area given our ranking as the least affordable community in the 

nation. Balancing environmental concerns with affordable housing and new 

employment is a daunting challenge, not likely to be furthered by the draft Rules. 

 Efforts to improve air quality are supported by the MCEDCO provided that said 

activities reflect a balanced approach with a clear plan for improvements. 

RESPONSE: The District feels that it has met the criteria stated by the author. 

The draft ISR rules are part of a larger plan, the PM10 and ozone attainment 

plans, that identified emissions inventories for various activities and land uses, 

looked at the predicted growth, identified controls, modeled future air quality and 

determined a mix of actions that would reduce air pollutant emissions to bring the 

valley into attainment for PM10 and ozone. Part of this plan (also mandated by 

state law ñ SB 709) is to reduce emissions from indirect and area sources. As 

stated in Response to Comment # 17, the ISR development process has taken 

several years, multiple workshops, as well as working with the state-wide 

URBEMIS working group, careful analysis of existing regulations and programs. 

For more information, please see the Staff Report and associated Appendixes. 
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SUMMARY OF COMMENTS AND RESPONSES 

FROM THE PUBLIC WORKSHOP HELD ON 

JUNE 30, 2005 

EPA: No comment received. 

ARB: No comment received. 

Industry and Public: 

General Comments 

1. COMMENT: The rule does not address the increase in trip length or vehicle trips 

resulting within the region from existing development. 

RESPONSE: The purpose of the rule is to mitigate the emissions that result 

directly from new development. While the growth in the footprint of the region 

can result in increased travel, it is not practical to assign that growth to an 

individual development. 

2. COMMENT: With new housing growing the housing inventory by at most 3% a 

year, we are therefore ignoring 97% of the homes and cars that create pollution. 

 Our legislators have a responsibility to address the issue head on and not hide 

behind the pretense that burdening 3% of the households can mitigate the 

pollution of the other 97%. 

RESPONSE: The District agrees that Rule 9510 does not address the 

emissions associated with existing residential, commercial, and industrial 

development. Given the requirements of the Health and Safety Code Section 

40717.5, the District is precluded from regulating emissions resulting from 

existing trips associated with existing development. The purpose of the rule is to 

mitigate growth which is occurring at a rate of about 3% per year. In 10 years, 

the cumulative growth will constitute 30 percent of emissions. In other words, 

without growth at the projected rate, emissions would be 30 percent lower in 10 

years. 

3. COMMENT: Stakeholders are gravely concerned about the Districtís ability to 

take on these complex new tasks accordant workload. 
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RESPONSE: The District has a long history of analyzing the impact from new 

developments and suggesting appropriate mitigation. Additionally, the District 

has extensive experience operating incentive program to purchase off-site 

emissions reductions. In conjunction with the rule adoption the District will 

provide an assessment of workload and an appropriate staffing 

recommendation. 

4. COMMENT: There needs to be protections built into the program for speedy 

processing of air quality assessments. 

RESPONSE: The draft rule contains timelines for the District process 

applications. The District received a number of comments concerning how those 

timelines relate to the land-use approval process. The District will make every 

effort to ensure that the timelines in the rule do not unduly delay the land-use 

approval process. The rule allows developers to submit applications prior to 

beginning the CEQA process. For projects where the project description is not 

expected to change, all analysis and preliminary emissions estimates can be 

accomplished prior to the CEQA document being released for public review. 

5. COMMENT: Why are only NOx and PM10 being addressed when CEQA 

requires all pollutants to be quantified and mitigated to the extent that they 

exceed thresholds? 

RESPONSE: Rule 9510 is being developed to meet commitments that the 

District has made in the PM10 and Ozone attainment demonstration plans. The 

District has not committed to reductions of other pollutants in this rule. While the 

mitigation contained in the rule will help applicants comply with CEQA that is not 

the primary purpose of the rule. The revision to the GAMAQI document will 

outline how this rule will work under CEQA. 

6. COMMENT: Not all of the classes of development projects identified in Section 

2.2 are defined in Section 3.11. 

RESPONSE: The District will make the appropriate changes ensure that there 

are no internal discrepancies in the rule.

7. COMMENT: Most buildings in the SJVAB last longer than ten years. The tenyear period should be expanded to at least thirty years, since that is the term of 

the standard mortgage. 

RESPONSE: The District selected ten years based upon a number of factors. 

First, since the rule has been committed to attain the federal ozone and PM10 

standards in 2010 the ten-year time frame is sufficient to get past the attainment 

deadlines and ensure that they last into the maintenance period. Also, utilizing a 

thirty-year time period would have a significant financial impact on the region.
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

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8. COMMENT: What would happen if a change of use occurs and the previous 

use required fees that were already paid, and the actual use did not? 

RESPONSE: The District is not proposing to re-assess a project at change of 

use. The program will only deal with new construction. 

9. COMMENT: Better clarification of the definition of ìbaseline emissionsî is 

needed. 

RESPONSE: The District will ensure that the definition is clear. 

10. COMMENT: Consultants should either be chosen by the District or the District 

itself should performed the Air Impact Assessment, so that consultants will be 

less likely to manipulate numbers.

RESPONSE: The District can ensure that air impact assessments are properly 

performed. This can be achieved with the District performing the analysis or with 

private consultants performing an analysis that is reviewed by the District. 

11. COMMENT: Projected NOx emissions reductions exceed the 2010 SIP 

commitment. The reductions should stay in line with SIP commitments. 

RESPONSE: The District has utilized the plan commitment as a guideline for 

rule development but the final emissions reductions will be governed by 

developing an effective rule. Final reductions from the rule will be within range of 

the SIP commitment. It is also important to achieve as many reductions as 

feasibly possible, since there are numerous new standards that the District will 

need to meet. 

12. COMMENT: The inclusion of the proposed rule in the SIP is prohibited by the 

Health and Safety Code since this is voluntary compliance with the Clean Air Act 

and not required. 

RESPONSE: The emissions reductions associated with the rule are required to 

achieve attainment of the federal ozone and PM10 standards and are therefore 

federally required and are commitments in two federally enforceable plans. 

13. COMMENT: All requirements pertaining to indirect source review or derived 

there from should be designated as ìnot federally enforceable.î 

RESPONSE: See previous response. 
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14. COMMENT: The inclusion of the proposed rule in the SIP is prohibited by the 

Health and Safety Code since the authority for this rule is to attain a state, not 

federal, ambient air quality standard.

RESPONSE: The District is not aware of any such prohibitions since the 

emissions reductions associated with the rule are needed to attain the applicable 

National Ambient Air Quality Standards. 

15. COMMENT: The definition of a development project should include the following 

additional language: The issuance of a permit for construction or reconstruction, 

where such permit is required solely to comply with a rule, regulation or order of 

a local agency shall not be considered to be a development project. The 

issuance of an operating permit shall not be considered a development project. 

RESPONSE: The current definition of a development project adequately 

addresses projects that have ancillary discretionary approvals relating to the 

project. The applicability of the rule includes not only discretionary approvals, 

but also minimum sizes of projects that must comply with the rule. 

16. COMMENT: It appears that the mitigation measure resulting from this rule are to 

be used to comply with mandates of attainment plans for ameliorating existing air 

pollution problems in the Valley. That is, the rule is not primarily intended to 

prevent new pollution from occurring, they are intended to address pollution that 

has occurred/is occurring from existing development. Case law in this area 

would indicate that new development should not be expected to remedy impacts 

created by previously approved and existing development. 

RESPONSE: The purpose of the rule is to reduce the emissions impact from 

projected development in the San Joaquin Valley not existing development. The 

emissions inventory in the relevant PM10 and ozone plans contain estimates of 

emissions totals that include the growth in emissions. The emissions reductions 

commitment for this rule does not exceed the emissions projected for growth, 

and therefore only addresses the impact of new development. 

17. COMMENT: It is unclear how the District will track the various developments 

and the various iterations of each approval. 

RESPONSE: The District will work with local government agencies to ensure 

that appropriate tracking mechanisms are in place. 

18. COMMENT: PM2.5 should be included as well. 

RESPONSE: The definition for PM10 includes particulates less than 10 microns 

in size. By definition this would include PM2.5 emissions. 
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19. COMMENT: The rule should require that all NOx and PM emissions be 

mitigated. 

RESPONSE: There are specific previsions of the Health and Safety Code that 

make it difficult to mitigate 100 percent of projects emissions without violating 

state law. Additionally, the District has committed to specific emissions reduction 

levels in the applicable ozone and PM10 plans. The District can achieve these 

reductions without requiring 100 percent mitigation from projects. 

20. COMMENT: Discounting the trips at 50% is not defensible. The District should 

engage the URBEMIS group, composed of professional air regulators to define a 

reasonable and defensible default number for discounting trips. 

RESPONSE: The purpose of discounting the trips by 50% is to ensure that the 

district does not charge fees on both ends of a trip. If the District did not 

discount the trips by 50% there is a very real possibility of charging both 

residential and commercial projects for the same trips, which could result in 

double counting. 

21. COMMENT: The rule should recognize the variation in emissions over the life of 

the development. Therefore, the rule should include a review of actual 

emissions every five years to ensure that the match between the emissions and 

the required mitigation is strong. 

RESPONSE: The URBEMIS model contains average assumptions for types of 

development projects. While there is some variation from project to project, and 

over the life of a project, the assumptions in the model are adequate when 

applied over a large number of projects. 

Applicability 

22. COMMENT: What was the basis for establishing the project build-out 

thresholds? 

RESPONSE: The project build-out thresholds are based upon the emissions 

associated with those types of projects. The thresholds reflect 2 tons per year. 

By setting project build-out thresholds, the District can address the maximum 

amount of the emissions associated with new development while minimizing the 

administrative burden on small projects. 

23. COMMENT: The rule should be set to cover developments that upon build-out 

create 1 ton or more per year of any pollutant. The size associated with each 

development project listed in section 2.2 would then be cut in half. 

RESPONSE: See previous response. 
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24. COMMENT: The applicability section should include the following language: 

The increase in emissions from the development project result from an increase 

in vehicular activity that would not otherwise occur, or the increase in emissions 

from the development project results from new area sources, not previously 

authorized. 

RESPONSE: By their nature new development projects ultimately result in new 

trips that would not otherwise occur. 

25. COMMENT: Other land use categories should be added, such as recreational 

space and military bases, since these activities generate a significant number of 

vehicular trip ends. 

RESPONSE: The District will add these categories. 

26. COMMENT: The industrial space threshold should be replaced with light 

industrial space at 25,000 square feet and heavy industrial space at 100,000 

square feet, since trip generation from these types of land use differ significantly. 

RESPONSE: Most heavy industrial projects would be exempt from this rule, so 

distinguishing between the different types of industrial would not be productive. 

29. COMMENT: The proposed rule does not comply with H&SC Section 

40717.5(a)(1) which limits the applicability to activities that contribute to ìÖair 

pollution by generating vehicle trips that would not otherwise occur.î 

RESPONSE: By their nature new developments ultimately result in new trips 

that would not have otherwise occurred. 

30. COMMENT: Under the proposed rule, the installation of equipment, wherein 

such installation requires a public agency ìexercise judgmentî in approving the 

permit, would make the project discretionary and subject to Rule 9510 even 

though the project might not result in vehicular activity. 

RESPONSE: These projects would not be subject to the rule since the size of 

the equipment would be lower than the applicability thresholds of the rule. 

31. COMMENT: 55,000 square feet of general office space is excessive. 

RESPONSE: Comment noted.

32. COMMENT: The rule should not retroactively apply to permit applications filed 

prior to the effective date of the rule. This appears to defer or circumvent CEQA 
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analysis. The seriousness of the pollution problem in the SJVAB makes all 

information on air pollution and its mitigation extremely pertinent and necessary 

to consideration of development projects prior to project approval. 

RESPONSE: The rule is not intended to replace the CEQA review for projects. 

The mitigation developed for a project through the CEQA process can be 

credited to the requirements of the rule. 

33. COMMENT: The applicable square footage thresholds in section 2.2 are 

discriminatory in that ìgovernment spaceî thresholds are considerably less than 

non-government identified spaces. 

RESPONSE: The applicable square footage thresholds are based upon 

emissions estimates for different land-use types. These estimates are 

influenced by a number of factors including trip generation rates that are specific 

to each land-use type. Government spaces tend to have higher trip rates, so a 

lower threshold for those spaces are warranted.

34. COMMENT: Will the rule as it relates to urban residential development be 

applicable to development proposed in the unincorporated areas of the county? 

RESPONSE: The rule will apply to new development projects in the entire San 

Joaquin Valley Air Basin. 

35. COMMENT: The definition of ìdiscretionaryî projects would be applied 

inconsistently throughout the SJVAB since different jurisdictions handle them 

differently. By defaulting to the jurisdictionsí interpretation of the term, the 

District is allowing for the rule to be applied inconsistently. 

RESPONSE: The District does not have the authority to change the local 

government process. Therefore the District is defaulting to the jurisdictionsí 

interpretation, so as not to interfere with the local jurisdictionsí land use authority. 

36. COMMENT: A simplified and flexible approach should apply to all projects 

smaller than the exemption thresholds. Smaller projects should be exempt from 

the detailed analysis, but should still be required to implement all feasible onsite 

mitigation strategies and make a contribution to offsite mitigation. 

RESPONSE: Projects that go through CEQA and have a significant impact are 

required to implement all feasible mitigation. 

Exemptions 
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37. COMMENT: There should be a new exemption section added, section 4.3, 

which should include the following: Any project subject to federal Section 7 or 

Section 10 consultations with the United States Fish and Wildlife Services 

(USFWS) or a 2081 consultation with California Department of Fish and Game 

(CDFG), since these projects will require life of project mitigation. 

RESPONSE: It is not understood how a project that is required to mitigate the 

life of the project for Fish and Wildlife, would mitigate their air impact. Therefore, 

this exemption will not be added.

38. COMMENT: Section 4.1.4 should read as follows: A development project where 

the emissions primarily result from direct sources or from emissions units as 

defined by Rule 2201 (New and Modified Stationary Source Review Rule); or 

projects subject to Rule 2010 (Permits Required). Examples of exempt sources 

can be expanded to include: Oil Production and Natural Gas Production, 

Refineries and Natural Gas Processing Plants, Waste Disposal and Waste 

Management Facilities, Mineral Extraction and Processing Plants. 

RESPONSE: Comment noted, with the exception of waste facilities and mineral 

facilities. These types of facilities may include a significant traffic component, 

therefore they should be subject to the rule. The stationary source emissions 

associated with all facilities will not be included. 

39. COMMENT: Section 4.1.4 needs to be modified to include gas plants, bulk 

loading terminals, and gas liquid processing plants. 

RESPONSE: See previous response. 

40. COMMENT: The 50 unit exemption is bound to result in ìgamingî or several 

tract maps coming in at 49 units. 

RESPONSE: The District will modify the rule to minimize the potential for 

circumventing the requirements of the rule. 

41. COMMENT: The exemption for the applicability should be extended to the 

reconstruction of owner occupied low-income housing. 

RESPONSE: Reconstruction of a single unit would be below the thresholds for 

rule applicability. 

42. COMMENT: What is the rationale for exempting transit and transportation 

projects? 

RESPONSE: The exemptions for transit and transportation projects were 

intended to be from the operational emissions portion of the rule. Since these 
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projects do not generate or attract trips it would not be appropriate to include 

these projects operational emission. There are significant emissions from the 

construction of these projects. The rule will be modified so that the construction 

requirements apply to transportation projects. Transit projects will continue to be 

exempt, since they are ultimately considered mitigation. 

43. COMMENT: This rule is akin to the local conformity rule, Rule 9110 and 

overlaps with US EPAís General Conformity requirements of 40 CFR 51. In fact, 

the conformity rules are more stringent that this proposed rule. Sources subject 

to general conformity should be exempt from the rule. 

RESPONSE: In some cases the general conformity rule is more stringent than 

the DESIGN rule. In those cases federal sources will be given credit for the 

efforts to meets conformity requirements. In other cases, federal sources are not 

required to mitigate their emissions if they are already included in the SIP. In 

those cases the DESIGN rule would be more stringent than the general 

conformity provisions.

44. COMMENT: The definition of projects subject to the rule does not address 

whether general, regional, community, or specific plan adoption would be 

considered ìdiscretionaryî projects subject to the rule. These plans and 

subsequent information for URBEMIS inputs are too general to furnish precise 

estimates of pollution as a result of those plans. Therefore, the consideration 

and adoption of specific plans should be exempt from the rule, unless the 

adopting land jurisdiction does, in fact, intend to issue development/construction 

permits pursuant to a specific plan without subsequent environmental analysis. 

RESPONSE: As long as the general, regional, community, or specific plan are 

not the last discretionary approval of a project or portion of that project, the rule 

would not be applied to these approvals, but rather to the later more specific 

discretionary action for the project. If these plans were the last discretionary 

approval, perhaps the plan or CEQA document could contain a condition of 

approval or mitigation measure requiring the developer to provide an analysis to 

the District once the project design is finalized and prior to final ministerial site 

plan review or subdivision map or issuance of the building permit. 

CEQA 

45. COMMENT: The proposed rule does nothing to protect against CEQA lawsuits 

with respect to air quality mitigation. 

RESPONSE: Due to limitations in state law, the District is unable to develop a 

rule that provides the same level of mitigation that some communities are 

seeking through the CEQA process. The District has established a program 
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through which project proponents can work with the District to fully mitigate their 

projects through CEQA. 

46. COMMENT: There is a disconnect between the levels of significance in the 

Guidelines for Assessing and Mitigating Air Quality Impacts (GAMAQI) and the 

proposed rule. 

RESPONSE: The purpose of the rule is to assist the District in attaining clean 

air standards. The rule is not intended to satisfy the requirements of CEQA. 

However, the GAMAQI will be revised to describe how compliance with this rule 

would affect CEQA. 

47. COMMENT: What is the basis for the exemption of projects that have a 

mitigated baseline below two tons per year? Is this basis evidence that 10 

projects in the same area producing less than two tons per year each are not 

cumulatively considerable under CEQA? 

RESPONSE: The threshold was in part determined by selecting a level where 

reductions achieved would meet the commitments outlined in the PM10 and 

ozone plans. The revisions to the GAMAQI will outline the issue of cumulative 

impacts, in relation to this rule. 

48. COMMENT: The District should include in this rulemaking, clear direction from 

the Governing Board to amend the GAMAQI, through a public hearing process, 

to formally adopt the concept of NOx mitigation over ten years in Air Quality 

Assessment methodology for CEQA documents. This would provide clear 

direction for the connection of this rule to CEQA and provide support for the 

Lead Agency in the current challenges to Air Assessment methodology in CEQA 

documents. 

RESPONSE: The District will continue to improve its CEQA process to insure 

that appropriate analysis and mitigation are included for projects. Pending 

Governing Board adoption of this rule, the GAMAQI will be revised through a 

public process.

49. COMMENT: Please clarify why the District is not committed to amending the 

GAMAQI to define the exact role that this rule will have in the CEQA process, 

which would clearly provide relief for local government in CEQA litigation in a 

matter, air impacts, for which the District is the recognized expert. 

RESPONSE: As was mentioned previously, the purpose of the rule is to achieve 

the emissions reductions necessary to attain the federal PM10 and ozone 

standards. The primary purpose of the rule is not CEQA compliance. However, 

the GAMAQI will be revised, and will provide clarification on how this rule works 

under CEQA.
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50. COMMENT: The appropriate time for District analysis of projects under the rule 

would be during the early consultation process, before the overall environmental 

analysis of a project is completed and before the mitigation measures are 

approved for the project. 

RESPONSE: Since the timelines for land use approval and CEQA vary greatly 

from jurisdiction to jurisdiction, the District cannot prescribe a timeline that will fit 

all jurisdictions. To that end, it is up to the developer to determine when would 

be the best time to approach the District. It is the Districtís preference that it is 

as early in the process as practicable so that the analysis and impact 

assessement could be completed prior to circulation of the CEQA document.

Regulatory Process 

51. COMMENT: The best time to analyze and mitigate environmental impacts is at 

the comprehensive higher plan level. However, this rule discourages master 

planning in favor of piecemeal, small projects due to the liabilities stated for 

changes in design. 

RESPONSE: The applicability of the rule at the last discretionary approval stage 

does not provide a disincentive to planning at a higher plan level. In fact, the 

opposite is true. Building in mitigation at the comprehensive plan level will assist 

in complying with the requirements of the rule. 

52. COMMENT: The proposed rule creates a major burden for project applicants by 

imposing new requirements for preparation of detailed air quality studies. 

RESPONSE: Many projects are already doing comprehensive analysis during 

the CEQA process. It is intended that the analyses and work for this rule provide 

a foundation for and/or complement the analyses required under CEQA. The 

District will work to provide tools and training to streamline the analysis process. 

53. COMMENT: The mitigation agreement is wholly duplicative of the mitigation 

procedures set forth in CEQA, and will create chaos and confusion. 

RESPONSE: Given that mitigation is consistent with the CEQA process it 

should not create chaos or confusion. The mitigation should in most cases be 

included as a mitigation measure in the CEQA document. Measures provided by 

the developer after the CEQA process is complete will require an agreement to 

ensure compliance. 

54. COMMENT: The requirement for a new assessment based on changes to the 

construction schedule approaches absurdity with a master-planned community. 

How can one accurately predetermine market forces over a 20-year period? 
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RESPONSE: The fact that the rule is applied at the last discretionary approval 

of a project will mitigate the need to reanalyze projects. If a project is phased 

over an extremely long period of time it is appropriate to re-analyze the project if 

the schedule is significantly altered. 

55. COMMENT: There is a conflict when the review of the Air Impact Assessment 

Application is to be done and when the review and assessment of the EIR must 

be accomplished. 

RESPONSE: The District will not prescribe when the application is required. 

Therefore, it is likely that the same analysis could be used for both purposes. 

56. COMMENT: The developer, who might be expected to pay for the mitigation 

fees in order to get land entitlements, may not be the same entity that purchases 

the project to eventually build the development. So if the latter decides to 

terminate the project and not build, there would be an administrative headache in 

terms of refunds. 

RESPONSE: The District has offered the option for a fee deferral agreement 

that could defer the fees for projects that have an uncertain future. 

57. COMMENT: The 30 day review process, plus the time necessary to process an 

application will significantly add to the development review time for a projectís 

approval. 

RESPONSE: The District has altered the timeframes in the rule to ensure that 

the rule will not result in unnecessary delays in the development process. 

58. COMMENT: How would the rule apply to Master Plan 

Communities/Developments? Would each project in that plan need to be 

evaluated or just the plan? The difference in administration of the two options 

would be enormous. 

RESPONSE: The rule requires the review at the last discretionary approval for a 

project. 

59. COMMENT: The approval of the Air Impact Assessment should be done prior to 

CEQA hearings, and the details of the calculations should be made available to 

the public prior to those hearings. 

RESPONSE: It is the Districtís intent to have the Air Impact Assessment 

available prior to the adoption of the project. 
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60. COMMENT: We request that the 30 day review period for determining an 

application complete be shortened to 10 days, since that is more in line with the 

10 day review period for Initial Study consultation comments, and since 

URBEMIS analyses can be done within a matter of minutes, with the exception 

of EIRs since those can have a 30 day response time.

RESPONSE: Comment noted. 

61. COMMENT: We request that the District forward a copy of the URBEMIS 

findings to the local jurisdictions for incorporation in their CEQA documentation 

prepared for projects. 

RESPONSE: The District is willing to share information with local jurisdictions 

and in fact regularly comments on CEQA documents. 

62. COMMENT: The rule proposes that cities and counties withhold building permits 

pending satisfaction of the District requirements. 

RESPONSE: The rule does not include this provision. 

63. COMMENT: The District should ensure timely public access to information used 

to calculate emissions. This would include publishing the information. 

RESPONSE: The District will make all appropriate information available to the 

public. 

Mitigation Fee Act 

64. COMMENT: The draft rule fails to comply with the nexus test required by 

AB1600. 

RESPONSE: The District has determined that this rule is not subject to AB 1600 

(the Mitigation Fee Act) for two reasons. First, the District has no approval 

authority over development projects and, therefore, is not imposing a fee as a 

ìcondition of approval of a development project.î Any fee will be assessed as a 

separate regulatory fee after the project has been approved by the local land use 

agency. Second, the Mitigation Fee Act applies only to fees assessed for the 

purpose of defraying the cost of ìpublic facilities.î The District does not believe 

that air pollution mitigation projects such as diesel engine retrofits are public 

facilities. However, notwithstanding the above, the District has met the ìnexusî 

test under the Mitigation Fee Act or any other legal standard. New 

developments subject to the rule attract pollution caused by construction 

activities and vehicle traffic. The rule seeks to mitigate such pollution by allowing 

the developer to (1) include on-site mitigation measures in the design of the 

development that mitigate the types of air pollution caused; and/or (2) pay a fee 
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that will be used to fund emissions reduction projects, such as engine retrofits, 

that will mitigate the types of air pollution caused. Thus, the purpose of the fee 

and its uses are clear. In addition, there is clearly a reasonable relationship 

between new development and a fee imposed to mitigate the air pollution it 

causes. Finally, the fees will be reasonable in amount in that they will be directly 

tied to the cost of reducing the emissions caused by the development. The fee 

is established on a site-specific basis through URBEMIS modeling designed to 

determine the amounts and types of excess emissions caused by the 

development and then calculating the cost of reducing those emissions. 

URBEMIS is currently the best tool in existence for quantifying such emissions 

and has been used in similar contexts in the past. Thus, the fee meets all nexus 

requirements outlined in AB 1600. 

65. COMMENT: The draft rule does not distinguish between the two-prong 

analytical paths in AB1600. 

RESPONSE: See previous response. 

66. COMMENT: The District has not circulated any documentation reflecting a 

nexus study. 

RESPONSE: See previous response.

Socioeconomic Impact Analysis 

67. COMMENT: The District has not released a socioeconomic impact analysis as 

required by the Health and Safety Code. 

RESPONSE: The District will be distributing the socioeconomic impact analysis 

in conjunction with this draft of the rule. 

68. COMMENT: The socioeconomic Impact analysis should demonstrate the 

impacts on the following: housing costs, rents, low-income families. 

RESPONSE: Comment noted. 

69. COMMENT: The socioeconomic Impact analysis should demonstrate the 

impacts of the processing, fee and mitigation proposals on new businesses. 

RESPONSE: Comment noted.

70. COMMENT: The socioeconomic analysis should make a note of the overall 

costs to the public of air pollution. 
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RESPONSE: The District will include a general discussion of the impacts of air 

pollution on public health in the socioeconomic analysis. 

URBEMIS 

71. COMMENT: URBEMIS is a useful tool for calculating emissions only at the 

ìsketch planningî level. It is not capable of evaluating specific design elements 

and operational measures, and accordingly, there is no way to do an accurate 

project-specific analysis of mitigation. 

RESPONSE: The District does not agree. In fact, URBEMIS has been utilized to 

analyze the impact from projects through the CEQA process for years. The 

model has recently been updated based upon an extensive review of travel 

behavior studies to ensure that it provides proper credit for design features that 

are built into a project. 

72. COMMENT: Please clarify how URBEMIS will be used in the process. Is the 

operating assumption that all discretionary development, regardless of its 

consistency with the general plan, is ìnewî for the purposes of modeling (i.e. 

additional development, and not replacing land uses/emissions already assumed 

within the model), or will the assessment be based on its placeholder land use? 

RESPONSE: The analysis will be conducted at the last discretionary approval 

for a project regardless of whether the project is consistent with the existing 

general plan. If the general plan is the last discretionary approval for that 

particular land-use the district will analyze the land-use based upon the highest 

emitting use that could be built under that land-use category. The modeling 

would be based on approved land uses or those proposed in the case of a large 

plan area that contains the project being analyzed. This will enable credit to be 

taken for innovative community design and layout. 

73. COMMENT: The URBEMIS fleet mix overstates residential emissions by 

roughly 50%. It is based on the statewide mix of vehicle types, which is 

comprises 3% of heavy-duty trucks. 

RESPONSE: The District is working to ensure that the fleet mix assumptions in 

URBEMIS are appropriate for each land-use type. While the fleet average may 

somewhat overestimate emissions residential developments there are heavy 

duty truck emissions associated with them. These include school buses, refuse 

collection, package delivery, and other service vehicles.

74. COMMENT: The URBEMIS age distribution overstates residential project 

emissions. The defaults are based on the statewide mix of vehicle types, which 

are generally older than a new residential fleet. Vehicles, in new housing units 

that were 10 years or younger, had a 50/50% split on vehicles 5 years or 
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younger, and older than five years. Housing units older than 10 years had a 

36/64% split. This problem cannot be easily revised within the current 

framework of URBEMIS. 

RESPONSE: The District believes that the fleet average is a reasonable 

assumption for new development projects. There are a number of factors that 

impact emissions including age, vehicle class, and fleet turnover. If more specific 

information is available, the District would consider utilizing project specific 

numbers. 

75. COMMENT: URBEMIS silt loading factors for entrained PM10 emissions 

overstate residential project emissions by nearly 50%.

RESPONSE: The District will ensure that the correct silt loading factors are 

utilized. 

76. COMMENT: URBEMIS trip lengths are inconsistent with TPA model data and 

recent statewide travel surveys.

RESPONSE: The District will continue to update trip lengths with local data as 

the model is updated. Project proponents can utilize project specific information 

in lieu of the URBEMIS defaults. 

77. COMMENT: URBEMIS default vehicle speed and estimated vehicle speeds vary 

by as much as 50-100% of survey data. 

RESPONSE: The defaults for vehicle speeds may be modified if project specific 

information is available. 

78. COMMENT: URBEMIS is not based on the most recent version of EMFAC in 

the Ozone SIP. 

RESPONSE: As the URBEMIS model is updated it will be updated with the 

most recent version of EMFAC that is available. The District will ensure that 

emissions are credited to the Ozone SIP in the proper SIP currency. 

79. COMMENT: Many commercial and industrial buildings are permitted and built, 

not knowing who the tenant will be in advance. How will URBEMIS estimate 

emissions for these types of development? 

RESPONSE: In this case the analysis will assume the highest emitting use that 

would be allowed under the land-use designation. 

Construction 
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80. COMMENT: Construction activities are not considered to be indirect sources. 

RESPONSE: The purpose of the rule is to mitigate the emissions associated 

with new developments, not just indirect source emissions. 

81. COMMENT: The rule overlaps and conflicts with existing District and ARB 

regulations that control emissions from construction activities and equipment, 

specifically Regulation VIII and the Dust Control Plan requirement. 

RESPONSE: The District is proposing modifications to the rule that do not target 

dust emissions, but rather target mitigating emissions associated with the 

construction fleet. 

82. COMMENT: There is no precedent in District or state regulations that require 

100% mitigation of a particular source. 100% mitigation is not reasonable or 

feasible, as required by CEQA. 

RESPONSE: Comment noted. 

83. COMMENT: Regulation VIII should address more stringent controls on fugitive 

PM10 from construction activities and not an indirect source rule. 

RESPONSE: Comment Noted.

84. COMMENT: The Regulation VIII list serve and mailing list should be notified of 

the rule. 

RESPONSE: Comment noted.

On-site Mitigation 

85. COMMENT: Reductions from many of the individual measures on the Mitigation 

Checklist are ìoff-model.î 

RESPONSE: The rule includes the provisions that the APCO can approve 

alternative modeling methodologies. This would include approving appropriate 

ìoff-modelî adjustments for mitigation that cannot be analyzed in URBEMIS. 

Many of the mitigation measures that are currently not included in URBEMIS 

have been removed from the checklist. 

86. COMMENT: The Mitigation Checklist needs to be reviewed and modified with 

input from the development community. 
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RESPONSE: The District is happy to discuss the checklist with stakeholders. 

87. COMMENT: Reduction measures such as requiring motorists to abandon 

vehicles in lieu of intermittent bus scheduling or biking on a 100 degree not 

appear capable of substantially reducing the amount of smog forming pollutants 

in our air. 

RESPONSE: Any reduction in vehicle use would reduce emissions. URBEMIS 

accounts for differences in transit service and the quality of the road system to 

accommodate bicycling. The District is not requiring any on-site mitigation 

measures, but allowing them to be used. It is the discretion of the developer and 

the local jurisdiction to require those types of measures.

88. COMMENT: Most local jurisdictions are concerned about the mitigation 

measures being land use and urban design strategies, since these matters are 

not the Districtís province. By intending to consider and apply mitigation 

measures after all other analysis is done, it would appear that the rules would be 

positioning the District as the ultimate authority on land use and urban design. 

RESPONSE: The mitigation measures in the checklist are voluntary. A 

developer can choose many measures, some measures, or no measures from 

the checklist. It is up to the local jurisdiction to approve of those measures, in 

regards to their land use authority. The District expects any design and 

infrastructure measures must comply with all local development standards and 

would be included in city/county approved plans and maps. The District has no 

authority to require that particular measures be included in the project. 

89. COMMENT: If mixed uses or conjunctive residential and non-residential uses 

are considered to be a mitigation measure, how will the timing of construction be 

controlled, since commercial uses tend to postpone construction until the 

demographics can be analyzed? 

RESPONSE: The project will be credited based upon the uses that are planned 

to be constructed. If the planned uses were changed that would be considered 

in a subsequent analysis. 

90. COMMENT: Local land use jurisdictions should be made a party to any 

mitigation agreements entered with the developer. 

RESPONSE: Comment noted. 

Off-site Mitigation 

91. COMMENT: The District has calculated that fees will escalate rapidly and allows 

for APCO adjustment based on actual costs. This fails the nexus test. 
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RESPONSE: The District has eliminated the option for APCO discretion to 

change the fee amount. 

92. COMMENT: The District fails to state how the fees will be used. 

RESPONSE: The fees will be utilized to purchase emissions reductions through 

the Districtís incentive programs. 

93. COMMENT: The sequencing of payments does not fit the reality of permitting, 

financing, and constructing homes. 

RESPONSE: The district has provided the option of paying the fees based upon 

the schedule in the rule, or through a fee deferral agreement with the District. 

The fee deferral agreement allows the flexibility to collect the fees based upon 

the projectís unique financing situation. 

94. COMMENT: The Mitigation Fee Act states that local agencies shall not require 

the payment of fees until the date of final inspection or the date of certificate of 

occupancy. 

RESPONSE: See response to #64 above. 

95. COMMENT: The fee formula needs to be simplified so that there is predictability 

and a lack of opportunity for controversy. 

RESPONSE: The District will develop templates and/or calculators that will allow 

applicants to easily assess their projects and have predictable outcomes. 

96. COMMENT: The impact revenue should be used, first and foremost, within the 

immediate area of the project that the fees are collected from. 

RESPONSE: Fees collected from a project will be spent to mitigate the impacts 

associated with the particular development project. 

97. COMMENT: The district should indicate whether increased district enforcement 

of existing regulations would be an eligible expenditure of mitigation fees. Air 

quality improvement would be expected given the responses from the District 

that its enforcement staff is very limited when apparent violations have been 

reported. 

RESPONSE: The District is not proposing to utilize fees to increase 

enforcement staff other than staff to enforce the provisions of this rule. 
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98. COMMENT: The fees collected should be used on ìtraceableî mitigation 

measures (mitigation must be traced to the activity which the agency approves) 

as specified in CEQA. Since the proposed rule mainly targets vehicle traffic, 

traffic synchronization appears to be a logical solution. 

RESPONSE: The District proposes to utilize funds for cost-effective emissions 

reduction projects. The District will track the emissions reductions achieved 

through the expenditure of fees generated by the rule. If an application for grant 

funds for traffic synchronization were submitted, the District would assess 

whether or not it could be funded based on cost-effectiveness and other criteria 

such as whether the reductions can be verified over time. 

99. COMMENT: The APCD should develop a Regional Intelligent Transportation 

Authority (RITA) responsible for regional traffic synchronization, regional transit 

and intermodal planning, assisting cities with TCM implementation, and 

integrated collaboration with Caltrans. RITA should be funded by the rule and 

Section 40605(b) surcharge fees. 

RESPONSE: The District will continue to assess opportunities, such as this 

suggestion, to utilize fees to achieve cost-effective emissions reductions. 

100. COMMENT: The emissions reduction calculations for off-site mitigation need to 

calculate the benefit from a new piece of equipment to a less-emitting new piece 

of equipment. 

RESPONSE: There are a variety of incentive programs that the fees can be 

utilized for. In some cases it is appropriate to compare a base new piece of 

equipment to less-emitting new piece of equipment. In other cases, where there 

is useful life left in a piece of equipment, and the equipment is taken out of 

service, it is appropriate to provide credit for emissions that are eliminated by 

retiring the old equipment.

101. COMMENT: Developers should receive credit for offsite emission reductions 

created through voluntary implementation of additional mitigation measures 

applied to previously approved projects. For example, a developer could 

revegetate or reclaim disturbed surfaces in order to reduce fugitive dust. The 

developer could then commit these reductions to construction or operational 

emissions from proposed development projects. 

RESPONSE: The District will consider off-site mitigation proposed by a 

developer on a case-by-case basis. Any mitigation must be surplus and 

quantifiable.

102. COMMENT: We opposed the unilateral authorization to adjust the cost of 

controls. The APCO should be allowed to adjust the cost of reductions after 
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providing notice and an opportunity for public comment. We strongly believe that 

any increase in the mitigation fees should be subject to a cost effectiveness 

analysis and the approval of any fee increase should be subject to approval by 

the Governing Board.

RESPONSE: The District has eliminated the APCO discretion to modify fees. 

103. COMMENT: It is a concern that the District intends to use these revenues 

primarily to fund existing programs and activities such as scrapping old vehicles 

and replacing lawnmowers, rather than to partner more closely with cities and 

counties to make alternative transportation more accessible and useful. The 

best use of the money would be to expand/create mass transit systems and 

alternative transportation routes in the Valley, and to fund measures that reduce 

traffic volume and relieve traffic congestion. 

RESPONSE: The District will consider programs that achieve cost-effective 

emissions reductions. 

104. COMMENT: The District should ensure that the off-site mitigation measures are 

permanent, as opposed to the short-term benefit of replacing engines. 

Examples include vanpool systems, incentives for locating affordable housing 

close to existing job sites. 

RESPONSE: While the benefits from the Districtís incentive programs are 

credited for a short period of time, the actual reductions from the projects will 

continue. Additionally, the District has committed a specific tonnage requirement 

in the short-term to attain the ozone and PM10 attainment deadline of 2010. If 

the reductions were stretched over an extended period of time the District would 

not meet its plan goals, or attain the standards. It should also be noted that 

vanpool systems are currently eligible projects under the REMOVE II incentive 

program, and would be eligible for funds collected under this rule. 

105. COMMENT: The District needs to engage the public, local government, and 

other agencies to identify the best uses of the funds, and establish a public 

process and guidelines for determining those best uses. 

RESPONSE: Any new incentive program is subject to Governing Board 

approval, and thus it will be subject to public review. 

106. COMMENT: Long-term reductions strategies may appear costly at first, but they 

can have the largest cumulative emissions avoidance benefits, making them cost 

effective in the long run. Not only will initial reductions occur, but they will have a 

self-perpetuating ripple effect of infill and/or redevelopment. 
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RESPONSE: Cost-effectiveness calculations used by the Moyer Program and 

the District account for the project life, so long lived projects with low annual 

reductions may have good cost-effectiveness compared to short lived projects 

with higher annual reductions. The proposed rule is primarily focused on existing 

incentive program projects, since they are already established and can 

demonstrate cost-effective reductions. Upon adoption of the rule, the District will 

take a closer look at other types of emission reduction projects, and develop 

incentive program and procedures for viable and cost-effective project types. 

107. COMMENT: Similar to an investment portfolio, the District needs to identify a 

variety of short-, mid- and long-term off-site mitigation strategies. 

RESPONSE: See previous response.

Rule 3180 

108. COMMENT: If the air impact Assessment Application is done at the same time 

as the SJVAPCD review of the air impact in a CEQA document, the rule could be 

a source of funding for the SJVAPCD review of EIR documents. 

RESPONSE: It may be possible that some projects that would have been 

reviewed under CEQA, would now be subject to this rule which requires a more 

comprehensive look at it. To that end, the District needs to recover any time and 

materials spent related to this rule.

109. COMMENT: The administrative fee should be reduced initially, and there should 

be a sunset clause on it once the basic fund is built up to the point that the 

interest revenue from the funds is sufficient to cover the cost of the program. 

RESPONSE: The District will amend the portions of the rule, which is subject to 

a public review and adoption, if the need arises.

 
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COMMENTS FROM FOCUSED WORKSHOPS HELD ON 

MARCH 11, 15, 24, 31, 2004 

EPA: 

1. COMMENT: The District should ensure that a ìDistrict approved modelî is 

identified by name in the rule and that their use is appropriate based on 

consultation with EPA and other federal agencies. 

RESPONSE: The rule specifies the District approved model and allows 

additional models to be approved by the District. 

2. COMMENT: Section 5.3.2.3 allows the use of the Institute of Transportation 

Engineers Trip Generation Manual. It is unclear whether this is the same manual 

that was developed by the Department of Transportation (DOT). We consider 

the trip generation rates in the DOT manual to be appropriate.

RESPONSE: The Institute of Transportation Engineers Trip Generation Manual 

is used by the California Department of Transportation (DOT). 

3. COMMENT: More specificity is needed for sections: 5.1, 5.3.1.1, 5.3.2.2-4, 

5.3.3.6, 5.4.2-3, 5.5, and 5.7.2.2-3, 5.7.3.2

RESPONSE: Comment noted. 

4. COMMENT: Section 3.27 defines a ìvested project,î however; the rule does not 

specify the process by which a project will be designated as ìvested.î The rule 

should indicate what minimum components are required to become a ìvested 

project.î

RESPONSE: “Vested projectsî is a relatively standard development procedure 

in which the developer requests the applicable agency to vest his/her project. If 

a project is vested, it cannot be liable for future changes in regulations for that 

agency. In exchange for that status, the applicable agency may require other 

items or actions of the developer. The procedure for vesting status varies by 

jurisdiction. The current version of the rule should eliminate the need to specify 

that process, since vested projects will be treated the same as non vested 

projects. 
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5. COMMENT: Section 3.25 excludes developments where streets are a portion of 

the project from the definition of ìtransportation projects.î Rule 9510 should not 

allow sources to receive credit for road paving associated with new 

developments, which it appears to allow by this definition and the exemption 

contained in Section 4.3. The rule should also define those developments where 

streets are a portion of the project.

RESPONSE: The definition of transportation projects has been modified to 

exclude projects where the traffic surfaces are a portion of the project. It would 

be virtually impossible to define developments where the traffic surfaces are a 

portion of the project, since most developments are designed to accommodate 

transportation. The emissions from constructing internal roads in a project are 

included in the construction emissions for the land use and are not considered a 

transportation project. 

6. COMMENT: Section 5.5 would be clearer if it stated that the developer shall 

provide the project information ìUpon final local agency discretionary approval.î

RESPONSE: Comment noted. 

7. COMMENT: The District needs to ensure that the level of mitigation that is 

required under Section 5.1 exceeds the level of mitigation already required under 

other rules and programs in place, specifically Regulation VIII.

RESPONSE: URBEMIS contains district-specific emission factors, and therefore 

only the portion of non-regulated emissions will be counted in the estimated 

project baseline total. The emissions totals contained in Appendix B already 

have Regulation VIII control subtracted from them. 

8. COMMENT: In order to ensure consistency between the implementation of this 

rule and the transportation conformity activities of the MPOs, the District may 

want to work with these agencies on implementation procedures or additional 

rule language. 

RESPONSE: The District will coordinate with the MPOs.

9. COMMENT: Rule 9510 should distinguish the various types of agencies and the 

various types of permits that would be subject to the rule. 

RESPONSE: Many jurisdictions handle permits and projects differently. 

However, writing a prescriptive rule that identified every kind of project at varying 

stages of planning would be extremely difficult. To that end, the wording of the 

current rule meets our needs. If an individual agency had a question regarding 

their coverage by the rule, the District could make a determination. 
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10. COMMENT: Monitoring programs in Section 5.3.3.6 should be further described 

for clarity. 

RESPONSE: Comment noted. 

ARB: No comments.

INDUSTRY/PUBLIC: 

Trips 

1. COMMENT: The proposed program should only regulate new trips and not 

redirected trips. 

RESPONSE: The proposed program has been designed to regulate new 

sources of emissions. 

2. COMMENT: Double-counting trips will lead to overestimating and overcharging. 

RESPONSE: The proposed program will not be double-counting trips and 

appropriate modifications have been made to prevent that. 

3. COMMENT: Trip lengths in URBEMIS are not accurate. 

RESPONSE: The trip lengths in URBEMIS are based on data submitted by the 

local transportation planning agencies. If project specific trip lengths are 

available, they should be used instead of URBEMIS defaults. 

4. COMMENT: URBEMIS double-counts reductions from existing rules. 

RESPONSE: URBEMIS contains district-specific emission factors, and therefore 

only the portion of non-regulated emissions will be counted in the estimated 

project baseline total. 

5. COMMENT: There are emissions impact from mitigation measures, such as 

lighting, and increased energy use. 

RESPONSE: Any emissions impact from this rule will be considered under 

CEQA. Emissions from power generation is small in comparison to emissions 

reduced from vehicles and combustion equipment used at the project site due to 

emission controls at the power plant and higher efficiency of electrical equipment 

such as electric lawnmowers. 
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6. COMMENT: There should be a de minimis level of new trips. 

RESPONSE: The rule sets an applicability threshold based upon the emissions 

from a project. 

URBEMIS/Analysis 

7. COMMENT: URBEMIS is not reliable for establishing a fee schedule. 

RESPONSE: The district maintains that URBEMIS is the right tool for this 

program. URBEMIS contains district and state specific emissions factors, and is 

the most widely-used air emissions model in the State of California, and many 

courts have made decisions based on its output. URBEMIS has also been 

updated to reflect the state-of-the-science on air mitigation measures. 

8. COMMENT: Future changes to URBEMIS should be a public process. 

RESPONSE: URBEMIS is owned by all the air districts in the state of California, 

as well as ARB. The district does not have direct control over whether or not 

changes to URBEMIS should be public. 

9. COMMENT: The option of another model should be given. 

RESPONSE: Comment noted. 

10. COMMENT: Consultants should not be conducting an analysis of the 

development. There is opportunity for ìtweakingî the numbers. It would be more 

efficient and consistent if the District were to do it. 

RESPONSE: There are adequate safeguards in place to ensure that the District 

can verify the work of applicant or the applicantís consultant. Each URBEMIS 

run creates a document that specifies any changes that were made to default 

values. The District can then verify any changes with the applicant or the 

applicantís consultant. 

11. COMMENT: The District should use a checklist approach instead of an analysis 

approach, so that the process is streamlined and there is no fee. 

RESPONSE: Emissions reductions associated with each mitigation measure is 

dependant upon project specific variables, and therefore cannot be streamlined 

to a checklist approach. 

12. COMMENT: There needs to be clear time limits on analyses conducted by the 

District. 
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RESPONSE: Comment noted. 

13. COMMENT: The Expedited Review option sends a mixed message, almost a 

pay-to-pollute message. 

RESPONSE: Comment noted. 

14. COMMENT: Construction emissions should be addressed, since some projects 

can take up to 10 years to fully construct. 

RESPONSE: Comment noted. 

15. COMMENT: There should be an appeals section for all analyses. 

RESPONSE: Comment noted. 

On-Site Mitigation 

16. COMMENT: The proposed rule would allow the District to indirectly regulate 

land use at the local level through its required on-site mitigation measures. 

RESPONSE: The current draft of rule 9510 gives the developer the option of 

how to comply with the rule. If certain on-site mitigation measures, such as 

mixed use development, are not allowed in a jurisdiction, then the developer 

cannot use that measure. On-site mitigation measures are designed to give the 

developer the option to reduce the emissions on-site. The developer can choose 

from a broad range of on-site mitigation measures. Any on-site measures that 

reduce emissions will reduce the amount emissions that need to be mitigated 

through fees. This rule does not impinge upon local agency land use authority. 

17. COMMENT: Some mitigation measures, such as traffic signals or sidewalks, are 

not put in place for 5-20 years. 

RESPONSE: Traffic flow improvements, such as traffic signals, will not be used 

as a mitigation measure under this program. Sidewalks, if used as a mitigation 

measure, should be constructed prior to operation of the project. 

18. COMMENT: Credit should be given for high-density residential projects. 

RESPONSE: Comment noted. 

19. COMMENT: Some of the on-site mitigation measures lack enforceability or may 

not work. 
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RESPONSE: The mitigation measures in URBEMIS have been revised to help 

alleviate that problem. Also, the current version of the rule requires developer 

and the district will enter into a mitigation agreement that will include provisions 

for enforcement, in the event that the local jurisdiction does not have 

enforcement mechanisms in place. 

20. COMMENT: The fees from this program will overlap with traffic mitigation fees. 

RESPONSE: Fees collected for traffic mitigation are primarily aimed alleviating 

congestion and/or fixing roads. While those items may have an incidental, 

temporary air benefit, this program intends to directly mitigate emissions from 

projects. If an activity is conducted or developed, or a mitigation measure is 

included for traffic mitigation, and it benefits air quality, the 

assessment/URBEMIS will quantify the air quality benefits. 

21. COMMENT: There should be a list of mitigation measures so that developers 

can fast track the process. 

RESPONSE: Comment noted. Please see Appendix C. 

22. COMMENT: The effectiveness of the mitigation measures is unlikely given the 

climate of the SJVAB. 

RESPONSE: The mitigation measures included in the new mitigation 

component of are based on the most recent research available. 

23. COMMENT: The district should provide the control efficiencies of the proposed 

mitigation measures. 

RESPONSE: The control efficiencies are contained in Appendix D of this staff 

report. 

24. COMMENT: The list of mitigation measures should be open-ended, to allow for 

new and innovative measures. 

RESPONSE: While the District would like to encourage new and innovative 

mitigation measures, each measure needs to have substantial evidence 

demonstrating the emissions are in fact reduce because of that measure. The 

District will consider giving credit to additional mitigation measures as they are 

proposed. 

25. COMMENT: The 30-day review time period is excessive given the timelines 

required by CEQA. It should be 10 days. 

RESPONSE: The District will streamline the process where possible.
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26. COMMENT: Title 24 is already being implemented. 

RESPONSE: The mitigation measure seeks to take credit for emissions 

reductions achieved by going above and beyond Title 24. 

General 

27. COMMENT: The program should regulate existing as well as new homebuyers. 

RESPONSE: The District is precluded by the Health and Safety Code from 

charging fees to mitigate existing trips. 

28. COMMENT: The District should consider an annual fee approach for residential 

sources. 

RESPONSE: Due to provisions of the Health and Safety Code, this approach 

would be an excessive administrative and enforcement burden. 

29. COMMENT: Indirect regulations are not the way to go. 

RESPONSE: The concept of mitigating the indirect emissions from new 

development has a long history of being implemented through the California 

Environmental Quality Act. Likewise, the purpose of this program is to mitigate 

the impacts of new development. 

30. COMMENT: Area sources do not generate new vehicle trips. 

RESPONSE: The applicability has been changed to reflect new emissions. 

31. COMMENT: Why is the District focusing on the cleanest developments in the air 

basin? 

RESPONSE: New development is not necessarily the cleanest developments. 

Depending upon location of the new development, it could be responsible for 

more vehicle miles traveled and/or trips. 

32. COMMENT: The District should form a technical advisory committee. 

RESPONSE: Comment Noted. 
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Applicability 

33. COMMENT: This program should include schools, regional parks, and 

churches. 

RESPONSE: This program will include any new development that is estimated 

to emit equal to or more than the threshold where indirect sources are the 

primary source of emissions from the project.

34. COMMENT: The current wording of Section 2.0 would include projects that 

come to the District for an Authority to Construct. Is it the Districtís intent to 

include those projects? 

RESPONSE: It was not the original intent. The exemptions have been 

expanded to exempt projects where stationary sources of emissions from a 

development are the primary source of emissions. 

35. COMMENT: The current wording of Section 2.0 would exclude State projects, 

because they do not have to apply for or obtain development permits. 

RESPONSE: The new wording should include state projects. 

Exemptions 

36. COMMENT: Low-income housing should not be exempt because 1) residents 

tend to drive older, more polluting vehicles, 2) there are higher concentrations of 

people, and 3) those residents can benefit from alternate forms of transportation. 

RESPONSE: Comment noted. There is no exemption for low-income housing in 

the current version of the rule. 

37. COMMENT: If there is not an exemption for low-income housing with a broader 

scope, many contractors will go out of business. 

RESPONSE: Comment noted. 

38. COMMENT: Structures that are required to obtain a Permit to Operate (PTO) 

should be exempt from the rule. 

RESPONSE: See response to comment #34. 

39. COMMENT: Infill projects, schools, public parks, and other public facilities 

should be exempt. 
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RESPONSE: See response to comment #33. 

40. COMMENT: General plans, specific plans, and community plans should be 

exempt from the rule. 

RESPONSE: The rule applies to the last discretionary approval for a project. 

Nexus 

41. COMMENT: The Nexus should identify the benefits of the program. 

RESPONSE: As with all District rule, an analysis of the emissions reduction 

associated with the rule has been developed. 

Misc. 

42. COMMENT: The rule should not distinguish between ministerial and 

discretionary projects. 

RESPONSE: Many jurisdictions handle discretionary and ministerial differently. 

However, writing a prescriptive rule that identified every kind of project at varying 

stages of planning would extremely difficult. 

43. COMMENT: Local agencies may use the Mitigation Agreement as a tool to 

hinder mitigation for projects. 

RESPONSE: Local agencies may disapprove of measures in a Mitigation 

Agreement due to health, safety, and welfare reasons. For example, if a bus 

bulb was desired, but the bulb interferes with a pedestrian element, it might be a 

legitimate cause for disapproval. 

44. COMMENT: How will the Bakersfield Metropolitan Project be addressed? 

RESPONSE: That project will be handled separately through a ìtask force.î 

45. COMMENT: How will overlap with CEQA be handled? 

RESPONSE: This rule may meet many of the air-related CEQA issues for 

development in this air basin. The Guidelines for Assessing and Mitigating the 

Air Quality Impacts (GAMAQI) document will be revised and adopted prior to 

implementation of the program, and will explicitly define how the district 

interprets this program in relation to CEQA. 
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46. COMMENT: The socioeconomic analysis should look at the per unit cost 

differential between a home built in a large residential development and a home 

built on a smaller development. 

RESPONSE: Comment noted. 

47. COMMENT: The socioeconomic analysis should consider the costs of health if 

the program was not implemented. 

RESPONSE: The socioeconomic analysis is an analysis that is mandated by 

the Health and Safety Code. That portion of the cost does not require a health 

benefit analysis. That type of analysis is better handled at the plan stage when 

demonstrating attainment of a health based standard. 

48. COMMENT: There should be a clause in the rule that protects developers from 

later changes of the rule, similar to the Safe Harbor clause in habitat regulations. 

RESPONSE: Any potential changes to District rules go through a public 

process. Any discussion of exemptions to rules or changes to rules should be 

handled through that process. 

49. COMMENT: There should not be an administrative fee as well. 

RESPONSE: An administrative fee is imperative to recover the districts costs 

associated with administering this program. 

50. COMMENT: There should be a broader spectrum of stakeholders involved. 

RESPONSE: Notices are distributed via newspapers in all eight counties and 

published on the districtís website. Whether or not portions of the public choose 

to become involved is up to them. 

51. COMMENT: The draft rule is silent on enforcement mechanisms. How will this 

be enforced? 

RESPONSE: Any on-site mitigation measures included in the design of the 

project will be identified in a mitigation checklist. Those measures that do not 

have an enforcement mechanism through the local agency will be subject to a 

mitigation agreement between the district and the developer. That agreement 

will identify those measures and their enforcement. 

52. COMMENT: The proposed certified mitigation program to be administered by 

local agencies is impractical. 

RESPONSE: Comment noted. 
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Off-Site Mitigation 

53. COMMENT: Section 5.8 should allow local jurisdictions to use the fees collected 

because they may know of local opportunities. 

RESPONSE: The District will consider local projects when allocating any fees 

collected through this program. 

54. COMMENT: Section 5.8 needs to be more specific. 

RESPONSE: Comment noted. 

55. COMMENT: There should be an appeals section for the expenditure of fees. 

RESPONSE: See response to comment #15. 

56. COMMENT: A process for fee reimbursement should be provided if emissions 

reductions are not achieved. 

RESPONSE: Comment noted. 

57. COMMENT: There needs to be a mechanism in place to expand off-site 

projects. 

RESPONSE: Comment noted. 

58. COMMENT: Fee expenditures should be located in the jurisdiction of 

origination. 

RESPONSE: Fee expenditures will be located in a manner that will mitigate the 

emissions impact from the project. 

59. COMMENT: All fleets should have the opportunity to obtain grants. 

RESPONSE: The district is currently drafting a fleet grant program. Any fleet 

that submits a cost-effect project consistent with the Districtís guidelines will be 

eligible to receive funds. 

60. COMMENT: There should be an appeals section for all project types, not just 

the Complete Analysis. 

RESPONSE: See response to comment #15. 

61. COMMENT: The grant programs should focus on diesel and smoking vehicles. 
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RESPONSE: The grant programs will focus on getting the most cost effective 

emissions reduction. 

62. COMMENT: There should not be a limitation on spending the fees on research. 

RESPONSE: The district needs to obtain immediate and quantifiable emissions 

reduction. Research does not meet the district objectives for this program. 

63. COMMENT: The fees should go towards traffic congestion mitigation. 

RESPONSE: The purpose of the program is to mitigate the impacts of 

development on air quality. While traffic congestion may be a part of the air 

quality problem, there are already traffic congestion fees in some jurisdictions. 

Also, traffic congestion mitigation is a temporary fix to the air quality problem. 

Studies have shown that increasing traffic flow increases capacity, and more 

capacity attracts more traffic. 
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COMMENTS FROM SCOPING MEETINGS HELD ON OCTOBER 7 - 9, 2003 

EPA: None received. 

ARB: None received.

INDUSTRY: 

1. COMMENT: Public input and oversight should be built into the process. 

RESPONSE: The District intends to provide periodic reports to the District 

Governing Board that will be available to the public that will enable public 

oversight. The development of the indirect source rules will be conducted in an 

open public process that allows for public input at every stage. 

2. COMMENT: The fee structure implemented should be a Mello-Roos based fee 

requiring an annual payment by the owner of record. 

RESPONSE: The DESIGN program is designed to reduce the impact that new 

development has on the growth in emissions. The program gives credit to 

projects based upon design features that are incorporated into a project to 

reduce emissions. Any fees charged are utilized to make up the gap between 

mitigation measures incorporated in the project and a 50% reduction in 

emissions. This type of program would not be appropriate for a Mello-Roos 

based program. 

3. COMMENT: This program should be handled similarly to that of the school 

district fees.

RESPONSE: The calculation and collection of school fees is relatively simple 

compared to calculating air quality impacts of the project. The proposed 

program gives the opportunity for a project applicant to incorporate design 

measures that could potentially reduce emissions over the life of that project. 

This means that each project may need its own determination of emissions after 

on-site mitigation have been accounted for to calculate the appropriate fee 

amount. 

4. COMMENT: How will the indirect source feeís impact on air pollution be 

measured and monitored? 
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RESPONSE: Projects funded with indirect source fees will have annual 

reporting requirements that will demonstrate that the emissions claimed are 

being achieved. The District will physically inspect all projects to ensure that the 

project is accomplished as claimed by the applicant for the funds and will credit 

those reductions in the appropriate attainment plans and progress reports. 

5. COMMENT: What provisions will be made for repealing the fee if it is enacted 

but is not effective at reducing air pollution from automobiles? 

RESPONSE: The emission reductions achieved from any fee collected will be 

subject to reporting and monitoring requirements. All projects that are based on 

retrofit or replacement of old technology with new technology must use 

equipment/devices that are emission certified or verified by the California Air 

Resource Board (ARB) and so are proven effective. The District will consider a 

periodic review of the entire program to ensure that the anticipated emissions 

reductions have in fact occurred. District staff would then present the results of 

the review and a recommendation to the governing board. 

6. COMMENT: An indirect source fee will act as a disincentive for homebuyers to 

help clean the air by purchasing a new home. 

RESPONSE: The decision to purchase a new home is influenced by a number 

of factors. If a subdivision incorporates on-site mitigation measures that reduce 

trips and area source emissions, which would lessen the fee amount and add 

value to the development, there may be more of an incentive to purchase a new 

home. 

7. COMMENT: If fees are to be charged based on automobile usage, all 

development, not just new development, should be charged. 

RESPONSE: The purpose of the program is to reduce the emissions 

associated with new development. The District prefers a preventative approach. 

 One of the key features of the DESIGN program is to incorporate mitigation 

measures on-site, which will reduce emissions over the life of the development. 

This is possible during the design of new projects. It would not be feasible to 

ìretrofitî existing homes and development; accordingly, they would probably pay 

100% of the fee amount. 

8. COMMENT: Infill developments with special measures incorporated into their 

design should receive a credit from this program. 

RESPONSE: The reductions achieved by the DESIGN program are a 

combination of on-site design elements and off-site emissions reductions that 

are achieved by buying emissions reductions with fees to make up any shortfall 
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in on-site mitigation. In-fill projects that incorporate design features that reduce 

the emissions associated with the project will be given credit for those reductions 

and will reduce their potential fee amount. 

9. COMMENT: Fees should be roughly proportional to the number of trips 

generated by that land use, as directed by the U.S. Supreme Court in the case of 

Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard 

(1994). 

RESPONSE: The District expects any fee collected under this rule to meet this 

condition. The fee formula is based upon the emissions associated with the 

project. 

10. COMMENT: The District needs to demonstrate how assessing a fee on land 

development will mitigate air pollution from automobiles. 

RESPONSE: The purpose of the program is to mitigate the emissions 

associated with new development through on-site mitigations and potential fees. 

 The District will outline the Nexus between any potential fees charged and the 

projects that they are mitigating. 

11. COMMENT: Fees should be collected no earlier than at the final inspection or 

certificate of occupancy and paid at close of escrow, when the calculated 

emissions would actually begin. 

RESPONSE: The fees need to be collected early enough to achieve emissions 

reductions prior to occupancy. Collecting the fee at occupancy would not 

provide adequate time to achieve the necessary emissions reductions prior to 

occupancy. Additionally, not all local agencies within the SJVAB have a 

Certificate of Occupancy permit for all uses, which would make enforcement of 

proposed requirements difficult. The proposed Rule 3180 may include the option 

for a Fee Deferral Agreement, which will operate under the capabilities of the 

local agency involved. 

12. COMMENT: Fees should be collected at close of escrow, so all homebuyers are 

charged. This will lower the fee and generate funding at a much quicker rate. 

RESPONSE: Please see Response #7. 

13. COMMENT: Funds generated should be restricted for use in the jurisdiction 

where they were generated and should be restricted to uses that relate directly to 

whichever land use is paying the fee. 

RESPONSE: The District will utilize any fees collected to mitigation the impact 

of the emissions associated with the projects that paid the fees. 
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Final Draft Staff Report for Proposed 

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14. COMMENT: Funds should be collected by the local agency at the building 

permit stage, and that local agency should utilize the funds for emission 

reduction activities. The local agency would then provide periodic reports to the 

District. 

RESPONSE: The District has over 10 years of experience managing projects 

that reduce emissions. Providing training and oversight to all jurisdictions within 

the SJVAB, to ensure proper use of the funds and track emissions reductions 

would be time-consuming. Also, the District wants to ensure that existing local 

agency funds are not replaced with indirect source funds to pay for a project that 

would have occurred anyways. In order to utilize the funds generated in the 

most efficient and consistent manner, the District has proposed to manage the 

funds collected. 

15. COMMENT: Consideration should be given to projects with low-cost housing or 

in economically depressed areas. 

RESPONSE: The District will consider potential exemptions during the rule 

development process. On-site measures that enable people to use alternatives 

to the automobile for their personal transportation needs are very important in 

low-income areas. 

16. COMMENT: Several jurisdictions already have fees for the purpose of reducing 

traffic congestion and automobile emissions that it creates. There should not be 

another fee that accomplishes the same purpose. 

RESPONSE: The District will calculate the benefit of mitigation that is included 

in the project. If existing fees result in real, quantifiable, surplus emissions 

reductions the District will credit those reductions to the project. 

17. COMMENT: There may be some overlap with conformity analyses. This needs 

to be addressed.

RESPONSE: Emission reductions from the indirect source program are 

reflected in the motor vehicle conformity budgets in the PM10 Plan. When 

budgets are set for the next ozone plan, they will also reflect emission reduction 

estimates. Conformity analysis done for individual transportation projects could 

take into account changes in trip generation rates and VMT resulting from 

mitigation incorporated by new development when determining if the 

transportation project will result in a decrease or increase in emissions. 

However, the transportation models may not provide the level of detail that would 

enable the user to provide input for individual development projects. 

18. COMMENT: How will final build out versus phasing be addressed?
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

 Rule 9510 and Rule 3180

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RESPONSE: That issue will be discussed at length during the Administrative 

Procedures focused workshop. 

19. COMMENT: The applicant should assume the responsibility of interacting with 

the District.

RESPONSE: The District has incorporated this suggestion into the rule 

language. 

20. COMMENT: Fees collected through this program should not fund projects that 

would have otherwise occurred. 

RESPONSE: The District agrees that these projects not be funded. The District 

will take suggestions on how to prevent that. 

21. COMMENT: The computed fee should be increased by 25% or more to fund 

projects that would improve our air, instead of just offsetting emissions.

RESPONSE: The DESIGN Program is being developed to ensure that any fees 

will meet the nexus standard. Thus, the fee cannot be set ìaboveî the 

anticipated emissions. 

22. COMMENT: Double counting should be addressed.

RESPONSE: The District is limiting the mitigation associated with the project to 

50% of the projects base year emissions. This eliminates any potential double 

counting. 

23. COMMENT: Funds should not be spent on public education processes or 

research type activities, but on projects where emissions reductions are 

quantifiable. 

RESPONSE: It is mandatory that all projects funded will result in real and 

quantifiable emissions reductions. The specific policies on how the funds will be 

spent will be included in the draft staff report at the final workshop. 

24. COMMENT: A grant-like program could potentially result in large amounts of 

fees collected with no projects being implemented. An expenditure program 

managed by the District and/or the Councils of Governments (COGs) should be 

developed. 

RESPONSE: The District is currently formulating how the funds will be spent. 
SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT

Appendix A: Comments and Responses Rule 9510 and 3180 December 15, 2005 

Final Draft Staff Report for Proposed 

 Rule 9510 and Rule 3180

A - 216

25. COMMENT: The District should clearly explain the relationship between the 

reductions from this program to the CEQA threshold discussions in the Districtís 

Guide to Assessing and Mitigating Air Quality Impacts (GAMAQI). The GAMAQI 

should be used as an implementation tool for this rulemaking project and it 

should be updated to provide consistent direction on the preparation of 

environmental documents. 

RESPONSE: The District will calculate emissions for each project based on 

mitigation measures included in the project. If a project has agreed to mitigation 

measures as part of CEQA, then those measures will be reflected in the 

emission calculation. It is anticipated that the GAMAQI will be revised after the 

rules are adopted to show the relationship between the rules and CEQA.

26. COMMENT: Construction emissions should be included in the emissions total, 

and hence, subject to a fee. 

RESPONSE: The District intends to include mitigation for construction 

emissions in the formula. 

27. COMMENT: It is likely that mitigation fees will be used to fund the most costeffective projects first. Thus, as time goes on, costs associated with pollution 

reduction projects will probably rise. The schedule of fees should be subject to 

upwards revisions based on this contingency. 

RESPONSE: The types of projects available for funding are not static. The 

District has analyzed the types of projects that it anticipates will be available in 

the near future and has adjusted the cost-effective factor appropriately for future 

years.