August 12, 2011

VIA ELECTRONIC MAIL

Ms. Frances Wicher

Office of Air Planning (AIR-2)

U.S. Environmental Protection Agency Region IX

75 Hawthorne Street

San Francisco, CA 94105

wicher.frances@epa.gov

Re: Comments on EPA’s Partial Approval/Disapproval of the San Joaquin Valley’s State 

Implementation Plan for Fine Particulate Matter, Docket # EPA-R09-OAR-2010-0516

Dear Ms. Wicher:

We appreciate the opportunity to comment on EPA‟s partial approval/partial disapproval 

of the San Joaquin Valley Air Pollution Control District‟s (“District”) and the California Air 

Resources Board‟s (“CARB”) state implementation plan to reduce emissions of fine particulate 

matter (“the Plan”) in the San Joaquin Valley—the most PM-polluted air basin in America. We 

are deeply disappointed with EPA‟s about-face on many of the faulty elements of this strategy

and strongly oppose the new determination that volatile organic compounds (“VOC”) are not a 

precursor to the formation of fine particulate matter. Without support, EPA has decided to 

approve elements of the Plan that it had previously rejected for failing to meet the requirements 

of the Clean Air Act. EPA should disapprove the Plan and require a new plan be developed that 

meets the requirements of the Clean Air Act. 

I. Background

As EPA acknowledged in its proposal, annual and 24-hour concentrations of fine 

particulate matter (“PM2.5”) in the San Joaquin Valley are the highest recorded in the United 

States. In the American Lung Association‟s Annual State of the Air Report, Bakersfield 

consistently outranks areas like Pittsburgh and Los Angeles for worst short-term particle 

pollution, and other San Joaquin Valley cities like Fresno, Visalia, and Modesto also regularly 

hold top-ten spots in the list of most polluted cities for both particulate and ozone pollution. 

EPA is also aware that there is a public health crisis in the Valley. Nearly one in four 

children in the southern portion of the Valley has been diagnosed with asthma—more than twice 

the national average. Fine particulate matter causes serious health effects, including aggravation 

of respiratory and cardiovascular diseases such as asthma, lung disease, heart attack, and stroke. 

Long-term exposure to PM2.5 is also causally associated with premature death. Furthermore, 

EPA has found that PM2.5-related premature deaths occur at levels well below the 1997 

particulate matter standard at issue here. In California alone, CARB estimates that nearly 10,000 

people die every year as a result of exposure to unhealthy levels of particulate matter. In the 

Valley, as many as 1,500 premature deaths each year can be attributed to particulate matter 
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exposure. See Estimate of Premature Deaths Associated with Fine Particle Pollution (PM2.5) in 

California Using a U.S. Environmental Protection Agency Methodology, CARB, Aug. 31, 2010.

The effects of the Valley‟s poor air quality lead to more than severe health impacts. In 

the San Joaquin Valley, where unemployment and poverty rates are sky-high, the economic cost 

of dirty air is approximately six billion dollars annually—which translates to more than $1,600 

per person per year. See J. Hall and V. Brajer, The Benefits of Meeting Federal Clean Air 

Standards in the South Coast and San Joaquin Valley Air Basins, November 2008. These costs 

represent the adverse effects of premature mortality, asthma attacks, chronic and acute 

bronchitis, respiratory symptoms, hospital admissions and emergency room visits, lost work and 

school days, and reduced productivity caused by the Valley‟s severe pollution problem. 

Unfortunately, the trends in the Valley are not encouraging. When CARB and the 

District were first working on their plan to reduce concentrations of PM2.5, they claimed that 

great progress had been made to reduce emissions of fine particulates in the Valley. See CARB 

Staff Report: Analysis of the San Joaquin Valley 2008 PM2.5 Plan, May 7, 2008. They claimed

that the area was actually meeting the 1997 24-hour standard and that the trends in annual PM2.5

“showed considerable progress over the last five years” and that the plan was to focus only on 

“what more is needed to attain the annual standard.” Id. at 5 and 4, respectively. 

Yet, despite EPA‟s claims to the contrary in the proposal, the Valley‟s design values for 

annual PM2.5 concentrations are nearly as bad as they were when monitoring for compliance with 

the standard first began in 2001. See EPA‟s Air Quality Subsystem Design Value Report, June 

1, 2011 and CARB PM2.5 Trend Summary at: http://www.arb.ca.gov/adam/trends/trends1.php.

In fact, since the 2004-2006 period, which was the design value period cited in the Plan, the 

Valley‟s annual and 24-hour standard design values were going steadily up (until the effects of 

the recession kicked in), as illustrated in this graphic from CARB‟s air quality data website:

Furthermore, the District‟s and CARB‟s claims that the Valley appeared to be attaining 

the 1997 24-hour standard were clearly false. In 2007, the year the District began developing its 
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plan, there were 32 exceedances of the standard. In 2008, the same year the District and CARB 

approved the plan that proclaimed attainment of the 1997 24-hour standard, there were 

approximately 20 exceedances of that standard. The next year, there were 14 exceedances. 

The State and District claims of progress were clearly premature. A new plan to address 

both the annual and 24-hour PM2.5 standards is needed. Our comments follow EPA‟s notice of 

proposed rulemaking in identifying the major components of the Plan and the defects in each 

component that must be addressed in a revised plan.

II. Inventories

Section 172(c)(3) of the Clean Air Act requires that nonattainment plans “shall include a 

comprehensive, accurate, current inventory of actual emissions from all sources of the relevant 

pollutant or pollutants in such area.” 42 U.S.C. § 7502(c)(3) (emphasis added). Current, accurate 

emissions inventories are important because air quality regulators use the inventories to develop 

control strategies, determine the effectiveness of permitting and control programs, provide input 

into ambient dispersion models, fulfill reasonable further progress requirements, and screen 

sources for compliance investigations. Most fundamentally, the inventory is used to calibrate 

models of the air pollution problem by looking at the inventories of emissions that resulted in the 

ambient concentrations measured during those same years. Having an accurate and current 

inventory is therefore critical to determining the nature of the pollution problem and the 

reductions that will be needed to attain the national standard.

EPA proposes to approve the inventories in the 2008 PM2.5 SIP claiming that they were 

current and accurate “at the time the Plan was developed and submitted.” 76 Fed. Reg. 41338, 

41343. This, however, is not the statutory test. Nowhere does the statute limit the accuracy 

requirement to “at the time . . . submitted.” This language is not in the Act and the addition of 

this modification is not a reasonable extension of Congress‟ intent. It would be nonsensical to 

believe that Congress meant for EPA to rely on inventory data that EPA knew to be incorrect just 

because that data was thought to be accurate at the time it was submitted. Congress‟ goal is to 

ensure the adoption and approval of SIPs that will achieve clean air meeting the NAAQS. If the 

inventory is known to be wrong, it also undermines the assumptions on the relationship between 

emissions and ambient concentrations, and therefore the modeling demonstration of the emission 

reductions needed to attain. To claim that Congress would want EPA to approve plans knowing 

that the very success of the plan has been called into question is an absurd interpretation of the 

Act. Indeed, the plain language of section 172(c)(3) expressly envisions that EPA may require 

revisions to the inventory “to assure that the requirements of this part are met.” EPA‟s 

interpretation would suggest that the only time such revisions are needed is when it is found that 

the inventory is not current or accurate as of the date it is submitted. This ignores and 

undermines any assurance that “the requirements of [Part D] are met.” 

Here, EPA is aware that the California Air Resources Board (“CARB”) has undertaken a 

thorough review and update of its emissions estimates for both on-road and off-road diesel 

equipment, during which time it discovered that it had radically overestimated emissions from 

in-use off-road diesel equipment. See CARB Staff Report: Initial Statement of Reasons for 

Proposed Amendments to the Regulation for In-Use Off-Road Diesel-Fueled Fleets and the Off-
4

Road Large Spark-Ignition Fleet Requirements, October 2010, incl. Appendix D1(“2010 OffRoad ISOR”). CARB Staff reviewed its inventory methodology and found that several key 

factors in estimating its original off-road emissions inventory were wrong, including assumptions 

about population, hours of use, and load factor. CARB staff concluded that “[t]he net result of 

the recession and methodology changes was an almost 80 percent reduction in emissions from 

what had previously been estimated, with about half of this reduction the result of the recession, 

and about half to changes in inventory methods.” 2010 Off-Road ISOR at 2.2This conclusion 

suggests that the 2005 baseline inventory for off-road diesel equipment was significantly 

lower—by about 40 percent—than was assumed in the Plan. This would reduce the 2005 

baseline inventory of NOx emissions in the Valley by about 28.24 tons per day and of PM2.5 by 

about 1.41 tons per day for off-road diesel equipment. See Appendix A of the 2007 State 

Strategy and Appendix B of the Plan for the emissions inventory output tables.

CARB also made adjustments to its inventory methodology for estimating emissions for 

on-road diesel trucks. While the changes are not nearly as striking as the changes to the off-road 

inventory, they are still significant. CARB stated in its Staff Report for the revised rule covering 

on-road diesel trucks, buses, and drayage trucks that: “Changes to emissions inputs independent 

of the recession, including out-of-state VMT estimates and lifetime mileage assumptions reduced 

baseline emissions by about 10 percent from what was assumed in 2008.” Staff Report: Initial 

Statement of Reasons for Proposed Amendments to the Truck and Bus Regulation..., October 

2010, incl. Appendix G3, at 19 (“2010 Truck & Bus ISOR”). A ten percent decrease in the 2005 

baseline inventory for sources covered by the Diesel Truck and Bus Regulation would reduce 

NOx emissions by approximately 25 tons per day and PM2.5 emissions by 1 ton per day. See

Appendix A of the 2007 State Strategy and Appendix B of the Plan for the emissions inventory 

output tables.

Table 1. SJV PM2.5 Plan Inventory Numbers (tpd)

2005 SIP*2009 SIP*2009 Revised 2014 SIP*2014 Revised

Truck & Bus 

Rule Sources

249.4 NOx

9.89 PM2.5

241 NOx

9.1 PM2.5

(no numbers 

found)

165 NOx

6.3 PM2.5

88.6 NOx***

1.9 PM2.5

***

Off-Road 

Rule Sources

70.4 NOx

3.5 PM2.5

58.8 NOx

2.9 PM2.5

12 NOx**

.5 PM2.5

**

44.3 NOx

2.0 PM2.5

14 NOx**

.6 PM2.5

**

*

 Source: 2008 PM2.5 Plan, Appendix B

** Source: 2010 Off-Road ISOR, Appendix D at D-48.

*** Source: 2010 Truck & Bus ISOR, Appendix G at G-57. (Note: Appendix G‟s Table 36 identifies different revised 

 baseline numbers for off-road sources for 2014 than were provided in Appendix D of the 2010 Off-Road 

 ISOR. There is no explanation for this discrepancy. We have used the figures from Appendix D. 

 

1 Appendix D available at: http://www.arb.ca.gov/regact/2010/offroadlsi10/offroadlsi10.htm

2 We note that South Coast AQMD‟s Mobile Source Committee has expressed concern regarding CARB‟s 

assumptions on the emissions inventory adjustments and the growth projections, noting that they may be overrelaxations of the existing rule (presentation attached to Earthjustice‟s 1/31/11 comment letter on EPA‟s proposed 

action on the Plan, incorporated herein by reference). 

3 Appendix G available at: http://www.arb.ca.gov/regact/2010/truckbus10/truckbus10.htm; see also “Workshops on 

Information Regarding the Off-Road, Truck and Bus and Drayage Truck Regulations,” September 3, 2010, available 

at: http://www.arb.ca.gov/msprog/ordiesel/documents/emissions_inventory_presentation_full_10_09_03.pdf
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Together, these changes in the inventory lead to a nine percent change in the 2005 

baseline NOx inventory and about a three percent change in the PM2.5 inventory. In its proposal, 

EPA states that “these changes collectively reduce the 2005 base year NOx inventory in the SJV 

by approximately 6 percent and the PM2.5 inventory by 5 percent.” 76 Fed. Reg. at 41343. 

EPA‟s estimates come from attachment 1 to a May 18, 2011 letter from CARB relaying 

supplemental information on CARB‟s 2011 Progress Report (“Supplemental Progress Report”). 

However, no documentation is offered as to where these revised base year estimates actually 

come from, and the numbers CARB gives in attachment 1‟s Table SJV-2005 do not match up 

with the statements (highlighted above) from the staff reports on the diesel rules. EPA should 

provide documentation of these adjustments to clarify the effect the diesel rule changes had on 

the base year inventory.

Whichever numbers are used, these changes to the inventory are significant in that they 

mean the assumptions about the relationship between emissions and ambient concentrations 

upon which the 2008 Plan is built are wrong. EPA confirms this point, saying:

Emissions decreases in the base year tend to reduce the relative effect of controls 

and increase the projected PM2.5 concentrations in the attainment year. We now 

know that base year emissions estimates were slightly too high, yet the model 

matched the observed concentrations in that year. With those higher emissions, 

the base year modeling should have predicted higher concentrations. The model, 

therefore, has a tendency to predict slightly lower concentrations than it should. 

To compensate for this model under-prediction, the predicted attainment year

concentration should be slightly higher than shown in the Plan.

TSD at 48. EPA also says in its TSD that “[i]deally, new attainment demonstration modeling 

would be performed to evaluate the effect of these updates and revisions: however, remodeling is 

a substantial undertaking and would not necessarily change the basic conclusions of the existing 

attainment demonstration analysis.” Id. However, the Clean Air Act does not allow EPA to 

approve inventories it knows to be erroneous because new modeling would be too hard. 

EPA must analyze how these errors in the base year inventory actually affect the 

attainment demonstration. EPA attempts to do this by looking at sensitivity modeling submitted 

by CARB, which was meant to determine the “relative effectiveness” on design values of 

additional reductions of NOx and PM2.5 emissions in the attainment year. EPA claims that the 

results of this sensitivity modeling support its conclusion that new attainment demonstration 

modeling would be unnecessary, because the impact of the base year inventory errors would not 

lead to a large enough increase in the modeled 2014 design values to lead to a violation of the 

NAAQS. See Tables B-2 and B-3 of TSD, explaining EPA‟s extrapolation of CARB‟s 

sensitivity model results using a 6 percent change in base year NOx inventory and a 5 percent 

change in base year PM2.5 inventory. The obvious flaw in EPA‟s reasoning is that it is 

calculating attainment year design value changes, to the hundredth of a percent, from attainment 

year design values that it has already admitted are erroneous. EPA cannot justify its failure to 

require updated attainment modeling by back-calculating from the wrong 2014 design values to 

claim that the changes to the inventory would be too small to affect the design values. 
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Furthermore, the problems with the 2014 design values resulting from the incorrect base 

year inventory and inadequate attainment demonstration modeling undermines CARB‟s claims 

that its 9:1 NOx to PM ratios are valid and EPA must not approve this “relative effectiveness” 

ratio for trading for transportation conformity purposes, or any other use, without requiring 

updated modeling.

EPA cannot approve these inventories as complying with the requirements of section 

172(c)(3) knowing that the data are not valid for purposes of building an attainment plan. EPA‟s 

creative attempt to use CARB‟s sensitivity modeling to avoid a new modeling demonstration is 

fatally flawed. EPA must require that a revised plan be submitted and that the new plan include

updated inventories that are current and accurate, taking into account the new information CARB 

has submitted to EPA. While we believe EPA should disapprove the inventories submitted in the 

2008 Plan, even if EPA maintains its decision to approve these inventories, such approval of the 

inventories submitted in 2008 cannot be used as an excuse to build a revised plan on these data,

which will certainly be outdated by the time any new analyses are prepared. Any new PM2.5 plan 

must include updated inventories that reflect the best data available at that time. EPA should 

make this clear in its final action on the 2008 Plan.

III. RACM/RACT

EPA must disapprove the plan‟s inadequate RACM/RACT demonstration. The 

fundamental problem with the RACM/RACT demonstrations are that many of the rules the 

District and CARB rely on have not been approved as satisfying RACT requirements. The 

demonstration also fails to evaluate VOC controls and provide adequate air quality modeling 

documentation. 

A. The District‟s RACM/RACT Analysis

RACT is “the lowest emission limitation that a particular source (can meet using) control 

technology that is reasonably available, considering technological and economic feasibility.” 44 

Fed. Reg. 53762 (September 17, 1979). EPA has recently disapproved or partially disapproved

several rules submitted by the District that were intended to reduce fine particulate matter and/or 

its precursors, including VOCs. Among them are Rule 4352—Solid Fuel-Fired Boilers, Steam 

Generators, and Process Heaters, Rule 4402—Crude Oil Production Sumps, Rule 4625—

Wastewater Separators, and Rule 4570—Large Confined Animal Facilities. Other District rules

covering significant sources, like the Flares, Wine Fermentation, and Biosolids Operations rules,

have languished at EPA for years without action. Earthjustice has commented on many of these 

rules for failing to implement RACT. The inadequacies in the District‟s rules, including those 

rules covering sources of VOCs, must be corrected before EPA can approve the District‟s

RACM/RACT demonstration. 

Ignoring VOC controls, the District evaluated just twenty four of its rules for its 

RACM/RACT demonstration in Appendix I of the Plan. Thirteen were identified for

commitments to achieve needed reductions of NOx, PM, or SO2 called for in the Plan. Of those 

thirteen rules, EPA has approved only six into the SIP. 
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Significantly, several of the rules intended to provide the majority of NOx and PM 

reductions from stationary sources in the Valley were adopted with substantially weakened

controls from what was anticipated during plan development and it now appears very unlikely 

that the District will be able to meet its commitments, even in the aggregate. The District has 

passed up needed emission reductions in several key rules, including Rule 4692—Commercial

Charbroiling, Rule 4103—Open Burning, Rule 4901—Wood Burning Fireplaces, and Rule 4320, 

Advanced Emission Reductions for Boilers, Steam Generators, and Process Heaters > 5 

MMBtu/hr. These rules were supposed to make up the bulk of the reductions committed to by 

the District, but instead, they will provide only a fraction of what is needed to bring the Valley 

into attainment by 2014.

Rule 4692—Commercial Charbroiling

In its RACT analysis, the District identified Commercial Charbroiling as a significant 

source of direct PM emissions and a significant opportunity for reductions. The District 

determined that expanding the applicability of the rule to under-fired charbroilers, which are 

responsible for 73 percent of the PM emissions from this source category, would greatly reduce 

PM emissions. The Bay Area Air Quality Management District (“BAAQMD”) determined in its 

rule covering these sources that controls on under-fired charbroilers could reduce PM emissions 

by as much as 90 percent.4 Indeed, in its May 21, 2009 Staff Report proposing revisions to rule 

4692, the District proposed to control larger under-fired charbroilers, just as BAAQMD had done 

and as the South Coast Air Quality Management District was preparing to do. Both South Coast 

and BAAQMD found that controls on larger under-fired charbroilers were cost-effective. In its

initial staff report, the District also found that PM controls such as HEPA filters and electrostatic 

precipitators were cost-effective for under-fired charbroilers. The reductions anticipated from 

this rule are listed in the District‟s PM2.5 plan commitments (see Table 2 below).

However, in its August 20, 2009 Staff Report, the District significantly revised its cost 

estimates based on “new information received as a result of the post-public hearing meetings” 

with under-fired charbroiler operators. Ignoring the compliance costs identified by the Bay Area 

and South Coast, the District increased its cost estimates and determined that controlling underfired charbroilers would cost more than ten percent of the industry‟s profits and so dropped such 

controls from its rule revision. This decision meant that reductions from the rule went from more 

than 2 tons per day of PM down to just .02 tons per day—costing the District 99 percent of the 

benefit anticipated from this rule in its PM2.5 plan. 

Yet if the District had stuck with its own cost estimates, or used those identified by 

BAAQMD or South Coast, it would not have eliminated these important controls from its rule. 

BAAQMD adopted its rule in 2007, so these controls were clearly considered feasible. And, as 

an email between EPA and BAAQMD explains, many sources in the Bay Area have already 

installed controls on under-fired charbroilers even though the requirement for such controls has 

not yet come into effect. See Email Between EPA and BAAQMD re: Charbroilers, attached as 

 

4

See Bay Area Air Quality Management District Staff Report for Regulation 6, Rule 2 attached at Attachment 1.
8

Attachment 2. There is no justification for the District to give up on these important reductions,

and EPA must not approve this key measure as RACT.5

What happened with the Commercial Charbroiling rule is representative of a much larger 

problem when it comes to rule development at the District. Very often, the District rejects 

reasonable controls based on inappropriate criteria, such as its bogus “ten percent of profits” test. 

The “10 percent of the industry‟s profits” test used by the District has no connection to whether 

each industry is “capable” of bearing the costs of potential controls. It gives no indication of 

whether the industry will be threatened or whether sources will shut down. First, the 10 percent 

cutoff itself is meaningless. If an industry is highly profitable, a reduction of 10 percent of 

profits does not mean that it is no longer profitable (e.g., the difference between a 20 percent 

return and an 18 percent return does not mean that the industry is not capable of applying 

controls). Similarly, an industry that has extremely low profit margins will not necessarily be 

forced to shut down if those marginal profits are reduced by 10 percent (e.g., the difference 

between a 2 percent rate of return may not be meaningfully distinct from a 1.8 percent rate of 

return). 

More importantly, the “10 percent of the industry‟s profits” test created by the District 

does not even mean profits will actually be reduced at all. The test does not attempt to assess 

how profits will in fact be affected. It is a simplistic comparison of costs to profits. The impact 

of these additional costs on profits depends on the ability of sources to raise their prices or lower 

their costs as a result of the regulation. In order to assess how the costs of control will affect an 

industry, the District must look at how those costs will impact production, employment, 

competition, and prices. None of these impacts can be determined from the proposed “10 

percent” test. 

Rule 4103—Open Burning

Another key rule for reducing NOx and PM emissions in the PM2.5 plan is the District‟s 

rule regulating open agricultural burning. As with the Commercial Charbroiling rule, the Open 

Burning rule the District actually adopted achieves far less than what was anticipated in the plan. 

Using substantial gaming of its ten percent of profits test, the District decided to exempt from 

control the three largest source categories of NOx, PM, and VOCs covered by the rule.6 These 

exemptions leave at least 1,030 tons per year of NOx emissions, 1,262 tons per year of fine 

particulate matter emissions, and 1,138 tons per year of VOC emissions on the table and greatly 

reduce the emission reduction benefit originally anticipated by the Plan.

 

5 Earthjustice incorporates by reference its comments on EPA‟s proposed action on Rule 4692, submitted to EPA 

docket EPA-R09-OAR-2011-0463 on August 1, 2011.

6 Earthjustice incorporates by reference its comments submitted to the District and CARB regarding Phase IV of 

the Open Burning rule, dated May 20, 2010 and May 26, 2010, respectively (attached to Earthjustice‟s 1/31/11 

comment letter on EPA‟s proposed action on the Plan) and its comments on EPA‟s proposed action on Rule 4103, 

submitted to EPA docket EPA-R09-OAR-2011-0547 on August 10, 2011.
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Rule 4354—Glass Melting Furnaces

Another rule that was anticipated to provide a significant amount of NOx reductions was 

the rule controlling emissions from glass melting furnaces. In 2008, the District adopted

stringent new emission limits and compliance schedules for those limits. However, the 2008 rule 

added an exemption for previously-regulated furnaces whose actual NOx and VOC emissions are 

less than eight tons per year but are located at major source facilities. This exemption is clearly 

illegal, as the Clean Air Act requires that RACT be implemented for all major sources. The 

Clean Air Act‟s definition of a major source does not allow for individual units that contribute to 

the air pollution problem to be exempted from control requirements. This exemption cost the 

Valley 1.6 tons per day of SOx reductions and 2.9 tons per day of PM reductions. See Final 

Draft Staff Report Rule 4354 (Glass Melting Furnaces) at 5, August 21, 2008 (attached to 

Earthjustice‟s 1/31/11 comment letter on EPA‟s proposed action on the Plan).

At the time of adoption of the 2008 rule, the District opted not to submit the rule to EPA 

for fear that, once approved, it would become federally enforceable and could not then be 

weakened. True to form, at the request of one of the impacted sources, the District did revise its 

Glass Melting Furnaces rule to remove its interim Tier 3 emissions limit in exchange for the

source‟s promise that it would meet the enhanced Tier 4 limit early at the beginning of 2014. 

The result is lost emission reductions in the years leading up to 2014, but an additional estimated 

1.2 tons per day of NOx expected to be achieved in 2014 if the source actually does comply with 

the enhanced limits as promised. The District also failed to remove the illegal exemption for 

small furnaces at major sources when it revised its rule. See Final Draft Staff Report: ReEvaluation of the October 2008 Amendments to Rule 4354 (Glass Melting Furnaces) at 11, April 

15, 2010 (attached to Earthjustice‟s 1/31/11 comment letter on EPA‟s proposed action on the 

Plan.)

In light of the other underperforming rules in the District‟s list of commitments (see 

Table 2 below), it is unacceptable for the District to forego any emission reductions in the years 

leading up to attainment. The District clearly should have removed its illegal exemption for 

small furnaces at large facilities and should not have traded near-term gains for a distant, 

unenforceable promise that may or may not materialize. 

Rule 4320—Advanced Emission Reduction Option for Boilers, Steam Generators, and 

 Process Heaters

Finally, the District claims that emission reductions from its revisions to its large boiler 

rule will contribute to the Valley‟s attainment. While the limits in the new rule 4320 are very 

stringent, they are also not mandatory since sources can opt to pay a fee instead of complying 

with the limit. In its recent approval of this rule into the SIP, EPA notes that this option fails to 

comply with EPA‟s policy on related economic incentive programs. 76 Fed. Reg. 16696 (March 

25, 2011) TSD at 6. EPA concludes: “The existing submittal of Rule 4320 does not include all 

necessary details on how creditable emission reductions will be achieved.” Id.

As we stated in our December 6, 2010 comments to EPA on its approval of Rule 4320, as 

long as sources are allowed to avoid the NOx and CO controls adopted in Rule 4320 without any 
1 0

assurance that the fees paid in lieu of these controls will result in permanent, enforceable, 

surplus, and quantifiable emission reduction, EPA can provide no emission reduction credit for 

purposes of the relevant SIPs. Moreover, before providing credit, EPA must not only require 

further documentation (see Rule 4320 Technical Support Document at 8), but also submit that 

documentation and argument for public review and comment.

Furthermore, particulate matter emission reductions associated with the SO2 controls in 

Rule 4320 also require further documentation in order to be credited. Before crediting any SO2 

emission reductions from this rule, EPA must collect, and circulate for review, documentation of 

the sources that have installed controls and the pre- and post-modification emissions from these 

sources. In addition, EPA should assure that the emission reductions from these modifications 

are surplus and have not been used as emission reduction credits to offset emissions increases at 

other sources. Without this documentation and review, EPA can provide no credit in the relevant 

attainment demonstration SIP.

Since no documentation for NOx or SO2 reductions has been presented in this proposal, 

no credit can be assumed from this rule for the 2008 PM2.5 Plan.

Rule 4352—Solid Fuel Fired Boilers, Steam Generators, and Process Heaters

Though Rule 4352 was not included as a specific commitment in the plan, it is a NOx 

control measure evaluated in the District‟s RACM/RACT demonstration and was identified as a 

“feasibility study” measure. Though the District claimed additional research was needed to 

determine if additional controls could be required for these sources, EPA recently rejected all of 

the NOx emission limits in the District‟s existing rule for failing to satisfy RACT. See 75 Fed. 

Reg. 60623 (October 1, 2010). Substantial NOx reductions could be achieved if the District 

amended this rule to meet the stringent limits in place in other areas of the country.

Rule 4901—Wood Burning Fireplaces and Wood Burning Heaters

In the version of Rule 4901 that EPA recently approved, see 74 Fed. Reg. 57907 

(November 10, 2009), the District added a “contingency provision” stating that, should the 

Valley fail to attain the 1997 PM2.5 standard by the attainment date, the PM2.5 concentration at 

which mandatory wood burning curtailment would be required would be lowered from 30 μg/m3

to 20 μg/m3. Again, considering the underperformance of the District‟s other rules to achieve 

even the minimal reductions identified in the Plan, this “contingency” should be adopted now to 

achieve additional reductions before the attainment date.

Clearly, there are reasonably available emission reductions that the District has ignored 

and should have included in this Plan. And though they weren‟t included in the Plan, many of the 

District‟s VOC rules are inadequate and do not satisfy RACT. Since VOCs are a precursor of 

PM2.5, EPA must ensure that VOC rules are evaluated as part of the plan and that they meet 

RACT. Future plans must take into account these serious shortcomings and identify additional 

reductions that will help bring the Valley into attainment as expeditiously as possible.
1 1

B. CARB‟s RACM/RACT Analysis

EPA‟s revised proposal continues to illegally credit “waiver” measures even though these 

measures have never been submitted for SIP approval and therefore have never been reviewed 

for compliance with SIP-related requirements, including the creditability of the claimed emission 

reductions, and are not federally enforceable. EPA also credits all of the non-waiver measures 

based on the assertion that these measures have “[g]enerally” all been approved into the SIP. See

76 Fed. Reg. at 41345. EPA‟s treatment of the “waiver” measures violates the Clean Air Act, 

and EPA‟s acceptance of all “non-waiver” baseline measures as being part of the SIP lacks a 

record basis.

EPA‟s decision not to require California to submit for approval into the SIP the various 

State control measures for mobile sources that have received a waiver of preemption from EPA 

under section 209 of the Act is illegal. The plain language of the Act expressly requires that 

California submit the control measures, rules, and regulations used to meet the Act‟s 

requirements as part of the SIP. The Act requires each SIP to “include enforceable emission 

limitations and other control measures . . . .” 42 U.S.C. § 7410(a)(2)(A) (emphasis added); see 

also id. § 7502(c)(6). The Act also plainly requires contingency measures to be included in the 

plan. Id. § 7502(c)(9) (“Such measures shall be included in the plan . . . .”) (emphasis added)). 

The Act unambiguously mandates that the various measures and regulations upon which a state 

relies to comply with the Act must be included and approved as part of the SIP.

In addition to violating the plain language of the statute, EPA‟s interpretation would 

undermine Congress‟s express intent to ensure that SIPs are enforceable (42 U.S.C. §§ 7509 and 

7604) and that harmful backsliding is prevented (id. §§ 7410(l) and 7515). EPA‟s interpretation 

would impermissibly render these sections of the Act meaningless by allowing EPA to pick and 

choose which control measures will be covered by these provisions. See Hughes Air Corp. v. 

Public Util. Comm’n, 644 F.2d 1334, 1338 (9th Cir. 1981) (A “basic rule of statutory 

construction is that one provision should not be interpreted in a way which is internally 

contradictory or that renders other provisions of the same statute inconsistent or meaningless.”). 

If key control measures are not SIP-approved, they are not enforceable by EPA or citizens, and 

are subject to unfettered revision and relaxation by the State. 

As authority for EPA‟s decision to credit all of the waiver measures, EPA cites to its 

approval of the Valley‟s 1-Hour Ozone Plan. See 76 Fed. Reg. at 41345. In that rulemaking, 

EPA did not deny that the plain language of these provisions of the Act requires all control 

measures to be approved into the SIP. Instead, EPA argued that the Agency had a longstanding 

practice of excluding waiver measures from SIPs and that this practice was ratified by Congress 

in section 193 of the Act, adopted with the 1990 Clean Air Act Amendments. See 75 Fed. Reg. 

10420, 10424-25 (Mar. 8, 2010). EPA‟s ratification claim is meritless.

“Ratification” is an argument for gleaning Congress‟ intent where the statute is otherwise 

ambiguous. See First Nat’l Bank and Trust Co. v. Nat’l Credit Union Admin., 90 F.3d 525, 530 

(D.C. Cir. 1996). Where the statute is plain, as it is here, such attempts to override that plain 

language are unavailing. Id.; see also Brown v. Gardner, 513 U.S. 115, 121 (1994) (“[W]here 

the law is plain, subsequent reenactment does not constitute an adoption of the previous 
1 2

administrative construction.”). EPA‟s argument points to no ambiguity in the statute‟s 

requirement that State and local control measures relied upon to satisfy the planning 

requirements of the Act be included in the SIP. To the contrary, EPA‟s interpretation is plainly 

inconsistent with Congress‟s intent because it allows for the weakening of State control measures 

without the safeguards for attainment that Congress intended to provide in the Act. Id.

§§ 7410(l) and 7515. 

EPA‟s general argument is premised on the unsubstantiated assertion that Congress was 

aware of EPA‟s interpretation regarding the SIP treatment of California‟s mobile source control 

measures. 75 Fed. Reg. at 10425; 74 Fed. Reg. at 33939. EPA, however, offers no evidence that 

Congress was aware of this interpretation. There is no automatic “presumption” that Congress is 

aware of all of an agency‟s interpretations. See Public Citizen, Inc. v. U.S. Dept. of Health and 

Human Serv., 332 F.3d 654, 669 (D.C. Cir. 2003) (finding “the government‟s argument has little 

weight absent some evidence of (or reason to assume) congressional familiarity with the 

administrative interpretation at issue”); see also Nat’l Railroad Passenger Corp. v. U.S., 431 

F.3d 374, 378 (D.C. Cir. 2005) (rejecting ratification argument where “government offers no 

evidence that Congress ever knew of [the agency interpretation]”). Such presumed knowledge is 

particularly unlikely where, as here, EPA can point to no formal regulation or express guidance 

document or policy statement. See Public Citizen, 332 F.3d at 669. EPA‟s position on the 

California measures has only been expressed through the lack of action rather than through any 

affirmative statement of its interpretation. In fact, the only express statements of relevant 

statutory interpretations are contrary to EPA‟s assertion here. See, e.g., 57 Fed. Reg. 13498, 

13563 (April 16, 1992) (“The EPA believes that the language of section 107(d)(3)(E)(iii) clearly 

requires that the emission reductions that were achieved and enabled the area to attain the 

standard must be linked to enforceable regulations in the SIP.”); see also 40 C.F.R. § 51.281 

(requiring that States must submit copies of the rules and regulations relied upon in a SIP to 

demonstrate timely attainment and maintenance of the national standards). Thus, if Congress can 

be presumed to have been aware of EPA‟s interpretations, it is more likely that Congress 

believed all state and local measures relied upon for attainment would be included as regulations 

in the SIP. See Public Citizen, 332 F.3d at 669-70 (rejecting government‟s “ratification” 

argument based in part on the fact that the “most prominent presentation of its position on the 

issue . . . was actually one in which the agency took the opposite view”).

The plain language of section 193 is also inconsistent with EPA‟s claim. Section 193 

provides that “[e]ach regulation, standard, rule, notice, order and guidance promulgated or 

issued” by EPA before the effective date of the 1990 Clean Air Act Amendments shall remain in 

effect except when the Act provides otherwise or when it would be inconsistent with any 

provision of the Act. 42 U.S.C. § 7515. EPA‟s decision not to require submission of State 

mobile source control measures receiving a section 209 waiver does not find refuge in this 

savings clause. There is nothing in the record “promulgated or issued” by EPA announcing 

EPA‟s interpretation regarding waiver rules. As noted above, EPA‟s position on the waiver 

measures has only been expressed, if at all, through the lack of action rather than through any 

affirmative action promulgated or issued by the Agency. Indeed, EPA‟s theory distinguishing 

waiver and non-waiver measures was only just invented in EPA‟s 2010 final action on the 

Valley‟s 1-Hour Ozone Plan. Compare 73 Fed. Reg. at 61392-93 (proposing full approval of 

Valley‟s extreme area plan despite unsubmitted waiver and non-waiver measures) to 74 Fed. 
1 3

Reg. at 33939. This is a brand new legal argument announced by EPA 20 years after Congress‟s 

adoption of section 193. Nothing in section 193 enshrines as established policy EPA‟s decision 

to exclude waiver measures from the SIP.

Even if EPA‟s past failure to require these State measures to be submitted for SIP 

approval could be considered a “promulgated or issued” policy position falling within the scope 

of section 193, EPA‟s interpretation is inconsistent with other provisions of the Act and therefore 

excluded from protection under section 193. See 42 U.S.C. § 7515 (savings clause in effect 

“except to the extent ... inconsistent with any provision of this chapter”). The Act itself requires 

that control measures used for attainment, rate of progress, contingency measures, or any other 

requirement must be approved by EPA as a part of the SIP. Id. § 7410(k). Nothing in section 

193 allows EPA to violate these provisions by allowing waiver measures to remain outside of the 

SIP.

EPA applies the correct legal test for crediting “non-waiver” measures (i.e., they must be 

approved into the SIP), but then fails to ensure that this test has been met. EPA only concludes 

that these measures relied upon to establish the baseline inventories have “generally” all been 

approved into the SIP. This is insufficient. EPA must ensure that the measures upon which the 

attainment and progress demonstrations rely are actually enforceable, creditable controls 

approved into the SIP subject to the anti-backsliding provisions of the Act. For example, 

Appendix Table A-1 of EPA‟s TSD lists CARB‟s anti-idling requirements. See, e.g., TSD 

Appendix Table A-1 at A-14, 16, 18, 33 and 34. These are non-waiver measures that have never 

been submitted for SIP-approval. If it had been submitted, EPA would have been informed that 

CARB has not enforced these requirements and EPA could have adjusted SIP credit accordingly. 

More importantly, had the requirements been approved into the SIP, EPA could pursue its own 

enforcement initiatives to address CARB‟s failure. Unless approved into the SIP, credit for such 

non-waiver programs must not be included in the baseline inventories. But EPA has not done a 

rule-by-rule analysis even of the non-waiver measures to determine how such measures are 

credited in these baseline inventories. As a result, EPA cannot reasonably conclude that these 

inventories are accurate, or that the attainment and progress demonstrations attached to these 

inventories is reasonable.

EPA‟s revised proposal also fails to address the fact that the RACM/RACT analysis does 

not include reasonable controls for condensable emissions. Nowhere in the demonstrations 

submitted by CARB or the District is there any discussion on the controls of condensable PM2.5

emissions. The transition period allowing agencies to ignore controls on condensable emissions 

ended on January 1, 2011. See 40 CFR § 51.1002(c). EPA has stated that, “We expect States to 

address the control of direct PM2.5 emissions, including condensables with any new actions taken 

after January 1, 2011.” 72 Fed. Reg. at 20652. EPA must disapprove the RACM/RACT 

demonstration for failing to assess reasonably available controls on condensable emissions.

IV. Attainment demonstration modeling

EPA new proposal to approve the air quality modeling in the 2008 PM2.5 Plan based on 

the supplemental documentation provided by CARB does not address the fundamental problem 

with the modeling, which is that the modeling fails to provide an accurate picture of what will be 
1 4

necessary to attain because it looks only at ambient concentrations in 2014. Even if the District 

can justify an attainment date extension to 2015, in order to determine whether an area has 

attained by the April 5, 2015 deadline, EPA must evaluate the air quality data from 2012, 2013 

and 2014. See 40 CFR § 51.1000 (defining attainment date); see also 72 Fed. Reg. at 20600. 

The 2008 Plan‟s strategy relies almost exclusively on back-loaded emission reductions that will 

not occur until 2014. Modeling ambient concentration in 2014 based on these last-minute 

emission reductions does not provide an accurate picture of what emissions will be in 2012 and 

2013. Because the bulk of the emission reductions in the Plan are delayed until 2014, the 

ambient concentrations of 2014 are not a reasonable proxy for the years leading up to it. Thus, 

while modeling only in the final year might be a reasonable approach where a plan provides for 

steady reductions leading up to that final year, it is not a reasonable prediction of attainment for 

this plan. If CARB and the District insist on waiting until the final year (which violates the 

reasonable further progress requirement), the modeling year must be adjusted to give a more 

reasonable prediction of what the 3-year average concentration from 2012 to 2014 will be since 

this is the concentration that will determine whether the Valley has attained the PM2.5 standard.

Nor did the supplemental documentation cure the defects in the modeling results caused 

problems in the inventory noted above. These defects undermine the projected design values and 

therefore the weight of evidence analysis relied upon by EPA. Moreover, EPA‟s review of the 

weight of evidence analysis is also flawed in that relies on the cherry picked ambient

concentration data from 2001 and 2006 at select sites. See TSD at 45. Looking at ambient air 

quality data show that these early declines in ambient concentrations have recently been 

reversed, even with the downturn in the economy. The new modeling analysis and weight of 

evidence demonstration must be revised to reflect this most recent information.

V. Precursors

We disagree with EPA‟s decision to disregard its earlier technical finding that VOCs are

a PM2.5 precursor in the Valley and must be evaluated for emission reduction measures. See 75 

Fed. Reg. 74518, 74533 (November 30, 2010). VOCs contribute directly and indirectly to the 

organic carbon fraction of PM2.5. This organic carbon composes approximately 40 percent of 

PM2.5 in the Valley. See, e.g., Plan at H-12. Secondary organic aerosol formation from VOCs 

alone may account for 15 to 25 percent of total organic carbon, or 10 percent of all PM2.5 in the 

Valley. Id. at 3-10. In addition, VOC may be the limiting factor in the secondary formation of 

ammonium nitrate. See Lurmann, et al., “Tasks 6.1 and 6.2: Phase Distributions and Secondary 

Formation During Winter in the San Joaquin Valley,” Presented to: CRPAQS Data Analysis 

Workshop, Sacramento, CA (Mar. 9-10, 2004); Pun and Seigneur, 35 Envtl. Sci. & Tech. 14, at 

2979, 2987 (2001). As EPA explains, the Plan recites most of this information but then fails to 

evaluate control measures for sources of VOC. Instead the Plan states that controls are not 

required “unless modeling shows that reductions of these are effective in reducing PM2.5 levels in 

the area.” Plan at 6-2; see also id. at 6-8. This is not an accurate statement of EPA‟s guidance.

EPA has explained that the test for PM2.5 precursors such as VOCs is whether “a 

significant change in the emissions of the precursor from the sources in the state would be 

projected to provide a significant change in PM2.5 concentrations in the nonattainment area.” 72 

Fed. Reg. at 20590. EPA explains that there is no specific quantitative test but notes that in 
1 5

determining whether the associated reduction in PM2.5 concentrations is significant, “it is 

relevant to consider that relatively small reductions in PM2.5 levels are estimated to result in 

worthwhile public health benefits.” Id. Whether VOCs should be considered a significant 

contributor to PM2.5 concentrations in the Valley is to be based on the weight of evidence in the 

record. Id. at 20596. EPA lists the types of information that should be included in this analysis. 

Id. at 20597. We believe the information in the record for each of these categories, including 

EPA‟s previous technical demonstration that VOCs are a PM2.5 precursor (see 75 Fed. Reg. 

74518 and TSD for same), warrants further review and justifies control of VOCs as a PM2.5

precursor. No credible new evidence has been submitted to disprove EPA‟s former finding; 

rather, CARB and the District have lobbied EPA to reinterpret relevant studies that EPA 

previously determined indicated that VOCs are a significant contributor to PM2.5 concentrations.

1. Emission Inventory Information

VOCs continue to be emitted in significant quantities in the Valley. The 2008 Plan 

focuses on NOx emissions, but the inventory of VOC emissions is comparable to the inventory of 

NOx emissions. According to the Plan, the 2005 inventory of VOCs was approximately 420 tons 

per day (“tpd”). This is roughly five times the 2005 inventory of direct PM2.5 emissions and 

about 75 percent of the size of the total NOx inventory. Direct comparison of these numbers of 

course is not particularly useful because a ton of reduction in a precursor pollutant is not 

equivalent to a ton of reduction in direct PM2.5. For example, Kleeman, et al. (2005) concluded 

that one ton of NOx reductions would yield roughly 0.29 tons of PM2.5 reduction. Therefore, in 

assessing the relative importance of emissions to be reduced to address PM2.5 concentrations, it is 

not enough merely to point to the large inventories of NOx and claim that these are the most 

important emissions to be controlled. Nonetheless, even if one were to compare raw inventory 

numbers, without adjusting them for their contribution to PM2.5, the VOC inventory is 

comparable to the NOx inventory and should be given similar consideration for possible emission 

reductions.

The relative importance of the VOC inventory is even more pronounced by looking at 

future inventories. By 2013, according to the Plan, the VOC inventory will be over 90 percent of 

the size of the NOx inventory because NOx emissions, even without the benefit of the possible 

diesel truck rule, are projected to decline by over 30 percent due to the natural turnover of older 

engines, whereas VOC emissions will decline by less than 15 percent. In fact, stationary source 

emissions of VOCs are actually projected to increase over that time period.

2. Speciation Data

All of the analysis on the chemical composition of PM2.5 suggests that ammonium nitrate 

and organic carbon are the two largest components of this pollutant in the Valley and that they 

each make up approximately 40 percent of total PM2.5. See, e.g., Plan at H-12. Combined, 

ammonium nitrate and secondary organic compounds represent 50 percent of total PM2.5. See, 

e.g., id. at H-20 to 21. This latter estimate is consistent with the Plan‟s statement that secondary 

organic aerosols may represent up to 25 percent of total organic carbon. Plan at 3-10. The Plan 

itself states that „[s]econdary organic aerosols contribute a significant fraction of PM2.5.” Id. at 

3-8. Because VOCs play a role in the formation of both secondary organic aerosols and 
1 6

ammonium nitrate, it would be unreasonable to claim that VOCs are not a significant contributor 

to PM2.5 concentrations when they contribute to the formation of those components making up 

roughly half of all PM2.5 in the Valley.

3. Modeling

Multiple modeling studies suggest that VOC is a significant contributor to PM2.5 levels in 

the Valley. For example, Pun and Seigneur (2001) found that “the production of secondary PM 

is greatly reduced when the VOC emissions are halved.” 35 Envtl. Sci. & Tech 14, at 2984. 

This conclusion was based on changes to the formation of ammonium nitrate particles only and 

did not include the benefits associated with organic carbon reductions. Id. In a 2004 

presentation to the CRPAQS Data Analysis Workshop, Lurmann, et al., noted that ammonium 

nitrate concentrations are limited by the rate of HNO3 formation and that HNO3 is formed via 

daytime photochemistry and nighttime chemistry aloft. Lurmann, et al., “Tasks 6.1 and 6.2: 

Phase Distributions and Secondary Formation During Winter in the San Joaquin Valley,” 

Presented to: CRPAQS Data Analysis Workshop, Sacramento, CA (Mar. 9-10, 2004). As the 

Plan notes, these researchers found that because of the low ratios of VOCs to NOx, “[d]aytime 

photochemistry is VOC-, sunlight-, and background-ozone-limited in winter.” Id.; see also Plan 

at 3-10. While this review does not appear to quantify the benefit of VOC reductions, the fact 

that VOC may be the limiting factor in the daytime photochemistry producing ammonium 

nitrate, suggests that VOC controls could produce better results in terms of PM2.5 reductions than 

other pollutant controls. 

Finally, Kleeman, et al. (2005) found that a 50 percent reduction in NOx resulted in a 25 

percent reduction in nitrate, while a 50 percent reduction of VOC would reduce nitrate by 17.5 

percent. Kleeman, et al., Atmospheric Env‟t 39, at 5325 (2005). The study concludes that VOC 

reductions are, therefore, less effective in reducing nitrate concentrations than NOx reductions. 

CARB, in its VOC supplement, tries to emphasize this point in order to support its claim that 

VOCs should not be considered a precursor to PM2.5 because significant VOC reductions are less 

effective than significant NOx reductions at reducing PM2.5 concentrations. The test of whether 

VOC emissions significantly contribute to PM2.5 concentrations, however, is not whether other 

controls are more efficient, but whether a significant change in VOC emissions would provide a 

significant change in PM2.5 concentrations. 

CARB tries to rewrite this test to suggest that because its preferred approach to dealing 

with PM2.5 is through NOx and SO2 reductions, and not VOC reductions, that this choice should 

somehow influence whether EPA finds VOCs to be a PM2.5 precursor. Yet even EPA admits that 

the studies clearly show that significant reductions in VOCs lead to a significant change in PM2.5

concentrations. See TSD at 58 (noting “[studies] provide evidence that control of VOC by itself 

can significantly reduce ambient PM2.5 concentrations in the San Joaquin Valley, at least for 

some times and locations” and “[t]he later three studies used more sophisticated photochemical 

grid models, and generally found VOC control to be effective, at least for some times and places, 

though generally less so than NOx control”). Even the study by Kleeman, et al., demonstrates 

that VOCs are a significant contributor to PM2.5 concentrations in the Valley because a 

significant reduction in VOC emissions would result in a significant reduction in PM2.5
1 7

concentrations. In fact, during the April 30, 2008 public hearing to adopt the District‟s Plan, 

Senior Air Quality Specialist and Atmospheric Scientist for the District James Sweet explained: 

To give you an idea on the annual standard, what they did was the sensitivity 

reduction of 50% of the NOx, and 50% of the VOC, and 50% of the ammonia, 

individually, to see how much each would help. If we reduced the NOx by 50%, 

we got a 5 microgram [annual] improvement. If we reduced ammonia by 50%, 

and that‟s a huge tonnage to be reducing it, we would gain 0.2 micrograms of 

benefit from a 50% reduction, so that is part of the reason why we say we have to 

look at what is the limiting chemical precursor in that formation. In regard to 

sulfates, which were mentioned earlier, we would get a 1 microgram benefit. And 

contrary to some of the comments made saying that we shouldn‟t deal with 1 

microgram of benefit, consider that our standard is only 15 micrograms. 1 

microgram is 7% of the standard. VOC reductions of 50% would give us about 

1.4 micrograms of improvement. That is significant...

Notably, sulfates (SO2) are presumed by EPA to be PM2.5 precursors. In the Valley, as Mr. Sweet 

explains above, VOCs are a more significant contributor to PM2.5 formation than even SO2, a 

presumed precursor. This alone should support the conclusion that VOCs are a PM2.5 precursor 

and should be analyzed and controlled in the Plan. 

All of these studies looked only at the contribution to nitrates, which are about the same 

portion of PM2.5 composition as organic carbon. VOC controls have the benefit of reducing both 

nitrate and organic carbon formation. EPA correctly points out that the Plan‟s Receptor 

Modeling Documentation shows that a 50 percent reduction in VOC emissions reduced PM2.5

levels by 1.3 μg/m3 annually and 8.7 μg/m3for the winter episode, and found that “VOC 

reduction is effective for the annual standard and the winter episode for reduction of total carbon 

secondary particulates.” TSD at 54. EPA then explains that “When compared to the annual 

PM2.5 NAAQS of 15 μg/m3 and the 1997 24-hour NAAQS of 65 μg/m3, these projected 

reductions appear significant.” Id. EPA also explains that “In addition, NOx and VOC reductions 

may have a synergistic effect, such that the ambient PM2.5 benefit would be more than expected 

from looking at the pollutants individually.” Id. This is counter to CARB‟s repeated, unsupported

claims that VOC reductions may not work well with CARB‟s chosen NOx-focused strategy.

Clearly, the benefits of VOC reductions on secondary organic carbon must be included in 

assessing the contribution to PM2.5 and any such results must acknowledge that current air 

quality models are likely to underestimate the reduction in secondary organic particulate matter 

formation from controls on VOCs. The relatively large inventory of VOC emissions coupled 

with the fact that, as explained in the RACM/RACT section above, there are many opportunities 

for the District to achieve near-term VOC reductions, suggest that the failure to include controls 

of VOCs in the Plan is not a reasonable strategy for reducing PM2.5 concentrations in the Valley 

in a timely fashion. EPA should disapprove the 2008 Plan for its failure to address VOC 

emissions. And in light of the robust technical and scientific information identified in the Plan 

and by EPA in its November 30, 2010 proposal, as well as by the public, we do not believe that 

CARB‟s so-called technical demonstration justifies the presumption against VOCs being a 

precursor to PM2.5.
1 8

VI. Attainment date extension

EPA‟s new decision to grant the Valley‟s request for an attainment date extension to 

April 5, 2015 is absurd. See 76 Fed. Reg. at 41354. EPA cannot grant such an extension given 

the flaws in the 2008 Plan‟s attainment modeling and RACM/RACT analysis. EPA points to the 

fact that reductions are achieved primarily from District controls on open burning, commercial 

charbroiling and residential wood combustion. Id. Yet, in each of these rules, the District has 

exempted significant sources of emissions with no rational basis. In addition, as noted above and 

below, the record is full of examples of delayed controls (e.g., retrofits of diesel equipment 

including the failure to address agricultural equipment and delayed glass melting requirements). 

These obvious defects, combined with the fact that VOC and condensable PM2.5 emissions are 

not included in this plan, undermines any claim that all reasonable measures have been 

implemented and that additional controls are not available to advance attainment. The 2008 Plan 

comes nowhere close to making the demonstration required for the full five-year attainment date 

extension.

VII. Attainment demonstration 

EPA must also reject the attainment demonstration, including the Plan‟s heavy reliance 

on State commitments to adopt last-minute control measures. As noted above, the numbers used 

to demonstrate attainment cannot be accepted given the problems in the inventory and the defects 

in the modeling analysis. Furthermore, the defective modeling results in inaccurate attainment 

target levels. Even if the projected emission reduction needs could be accepted, the Plan fails to 

adequately demonstrate that these needs will be met. 

EPA outlines a three-factor test to assess whether the commitments in the Plan are 

reasonable: i) the commitment must address a limited portion of the statutorily-required program; 

ii) the state must be capable of fulfilling its commitment; and iii) the commitment must be for a 

reasonable and appropriate period of time. 76 Fed. Reg. at 41355. EPA‟s analysis of the first 

factor finds that “the level of reductions remaining as commitments is reasonably close to the 10 

percent range that EPA has historically accepted in approving attainment demonstrations.” Id.

EPA does not, however, document how it determines the level of remaining reductions and what, 

exactly, is meant by “reasonably close.” 

It is simply not reasonable to approve a “plan to make a plan,” which is effectively what 

the District and CARB have offered here. The District and CARB ask EPA to trust them that 

they will find emission reductions needed to meet the standard by 2015. This is not what the 

Clean Air Act contemplates and undermines any meaningful review by the public or EPA. See

CAA § 110(a)(2)(A) (requiring plans to include “enforceable emission limitations and other 

control measures . . . necessary or appropriate to meet the applicable requirements of this Act”). 

There is no point in having a plan if the strategy it identifies is to “reduce emissions” by some 

amount without identifying specifically how it plans to accomplish those reductions.

Furthermore, the Plan cannot meet the second factor because CARB has repeatedly fallen 

short of its estimated emission reductions from the various rules identified. For example, CARB

has already voted to significantly weaken two key measures it had adopted for reducing NOx and 
1 9

PM and has failed to even begin developing the Agricultural Equipment Rule, which was to 

reduce 5 to 10 tons per day of NOx in the Valley and be adopted by 2009. The revisions to the 

adopted on- and off-road diesel rules rely on both methodology changes and significant 

adjustments of emissions inventories and growth projections to essentially claim that

unenforceable reductions in the inventory have obviated the need for the State‟s rules to achieve 

the committed emission reductions. But the State can‟t have it both ways. As noted above, these 

adjustments to the inventory trigger the need to reassess the relationship between emissions and 

ambient concentrations of fine particulate matter and cannot simply be used as creditable 

emission reductions that offset the need for actual emission controls. Furthermore, the massive 

recession-based “reductions” CARB cites as justification for the rollbacks on its diesel rules are 

not permanent and enforceable. Given CARB‟s track record and the games it has tried to play to 

avoid satisfying its commitments, we see no basis for “believing” that CARB is capable of 

meeting the massive, last-minute commitments relied upon in the Plan.

Even more problematic than the scope of the commitments relied upon in the Plan is the 

fact that these commitments are not enforceable. Clean Air Act sections 110(a)(2)(A) and 

172(c)(6) require that SIPs contain “enforceable emission limitations . . . as may be necessary or 

appropriate” to achieve attainment. While section 110(k)(4) allows EPA to grant “conditional 

approval” of a SIP lacking certain statutory elements “based on a commitment of the state to 

adopt specific enforceable measures” by a certain date, the statute provides that the conditional 

approval automatically becomes a disapproval if the State fails to comply with the commitment 

within one year. Here, EPA appears to be trying to avoid this limitation by treating the open 

ended promises of the State to reduce emissions as enforceable commitments even though the 

State has never specified exactly what it commits to do. The courts have rejected similar 

attempts to circumvent the statute‟s limitations on conditional approvals. See, e.g., Sierra Club 

v. EPA, 356 F.3d 296, 298 (D.C. Cir. 2004) (overturning EPA‟s conditional approval of SIPs 

based in part on the fact that the commitments identified no specific measures the state would 

implement).

To highlight the absurdity of these commitments, take, for example, that CARB reserves 

the right to claim credit toward its aggregate commitments from everything from new regulations 

to unenforceable incentive programs to “actual emission decreases occur[ing] in any air basin for 

which emission reduction commitments have been made.” 76 Fed. Reg. at 41346. This is 

arbitrary in the extreme and cannot be accepted by EPA. EPA needs to explain how the 

commitments offered in the Plan would be enforced. What relief could EPA or the public 

demand? When could such a suit be brought? Given the case law on these issues, we don‟t see 

any reasonable basis for believing that these open-ended commitments are practicably 

enforceable in a court of law. Before EPA approves such commitments, EPA must lay out a 

roadmap that can be followed by courts in the future to ensure that meaningful emission 

reductions are achieved.

 

Courts “may only enforce specific SIP strategies, and may not enforce a SIP‟s . . . 

aspirational goals.” Bayview Hunters Point Community Advocates v. Metropolitan Transp. 

Comm’n, 366 F.3d 692, 701 (9th Cir. 2004); see also Citizens for a Better Environment v. 

Metropolitan Transp. Comm’n, 746 F. Supp. 976, 980 (N.D. Cal. 1990) (courts can only enforce 

“express” or “specific” strategies for attaining CAA standards). Mere approval of an aspirational 
2 0

goal or non-specific promise into the SIP does not convert that goal or promise into an 

enforceable commitment. See El Comité Para El Bienestar de Earlimart v. Warmerdam, 539 

F.3d 1062, 1067 (9th Cir. 2008); see also Bayview Hunters Point, 366 F.3d at 703 (EPA‟s 

opinion letter interpreting a SIP provision as mandatory and enforceable was irrelevant because 

the SIP‟s “plain language” concerning the provision was merely aspirational). The El Comité

court rejected an attempt to force the State to determine whether its inventory of emissions was 

accurate in order to make good on its commitment to adopt such regulations “if necessary.” El 

Comité, 539 F. 3d at 1072-73. The court explained that because the inventory itself was not a 

“standard or limitation” as defined by the statute, it was not an “independently enforceable 

aspect[] of the SIP.” Id. Thus, in order to be “enforceable,” not only must a state‟s commitment 

to adopt additional measures to attain emissions standards be specific and announced in plain 

language in the final rule, but any data or rubric that will be used to determine when and how the 

state will adopt those additional measures must also be enforceable.

Before EPA can approve the commitments in the PM2.5 Plan, it must explain how the 

promise to reduce emissions by some amount is a “standard or limitation” enforceable under 

section 113 or 304 of the Act. Moreover, EPA must explain how enforcement of these 

commitments, which arguably could not even be considered until after the attainment deadline 

has come and gone, is adequate to assure the requirements of the Act (including timely 

attainment) are met. See CAA § 110(a)(2)(A). The strategy of relying on these open-ended 

commitments is a recipe for failure and is not a reasonable substitute for the detailed, enforceable 

plan envisioned and required by the Act.

VIII. Reasonable Further Progress

For the many reasons highlighted above, EPA must also disapprove the RFP 

demonstration. The failure to address VOCs, the failure to show generally linear progress in 

reducing emissions, and the failure of the modeling analysis to identify the target level of 

emission reductions required, and the defects in the inventory outlined above all infect the RFP 

demonstration because it is not possible to assess progress if the starting level of emissions is 

unknown. The RFP demonstration must also be updated to reflect corrections to the inventory.

IX. Contingency Measures

EPA‟s analysis of the defective contingency measures in the 2008 Plan is generally sound 

although it relies upon an RFP analysis that in turn relies upon invalid NOx to PM2.5 

interpollutant equivalency ratios. EPA acknowledges that the methods used to derive this ratio 

are not legitimate. See TSD at 47. Moreover, as discussed throughout these comments, these 

ratios are based on design values that have no rational basis because they are derived from 

modeling that assumes a relationship between emission levels and ambient concentrations that 

never existed in the Valley. Because these ratios are invalid, the assessment of “excess” RFP 

reductions is also invalid. EPA correctly proposes to disapprove the contingency measures in the 

PM2.5 Plan, but the shortfall targets must be recalculated using valid methods and results.
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X. Motor Vehicle Emission Budgets

EPA now proposes to approve motor vehicle emissions budgets for the Valley based on 

its conclusion that the revised budgets will be consistent with the PM2.5 Plan‟s attainment and 

RFP demonstrations 76 Fed. Reg. at 41360. Commenters agree that these budgets must be 

consistent with approvable attainment and RFP demonstrations. See 40 C.F.R. 

§ 93.118(e)(4)(iv); see also EDF v. EPA, 167 F.3d 641, 650-51 (D.C. Cir. 1999). Because the 

attainment and RFP demonstrations are not approvable, however, EPA cannot approve the 

budgets as revised by CARB. As explained above, the attainment demonstration is built upon 

invalid design values. These design values are the product of a modeling analysis that assumes a 

relationship between emissions and ambient concentrations that never existed. Not only does 

this faulty analysis undermine the attainment demonstration, it infects the RFP demonstration 

and the conformity analysis because they depend upon interpollutant equivalency ratios derived 

from these same bogus design values. CARB derived these ratios by conducting a sensitivity 

analysis to determine the relative impact of NOx and PM2.5 reductions. EPA acknowledges that 

this is not a legitimate basis for determining interpollutant equivalency ratios. See TSD at 47. 

Yet these defective ratios were nonetheless used to demonstrate RFP and conformity. Because 

these design values and interpollutant ratios are baseless, none of the demonstrations built upon 

them (i.e., attainment and RFP) can support approval of these budgets. 

Where, as here, the plan suffers from obvious defects that will prevent its approval, any 

transportation agency that relies on budgets derived from this plan cannot assure that conforming 

to these motor vehicle emissions budgets will not interfere with timely attainment or reasonable 

further progress. Any attempt to rely on such budgets would be in violation of section 176(c)(1).

XI. Inter-Pollutant Trading

EPA proposes to allow interpollutant trading in conformity demonstrations using the 9:1 

ratio developed by CARB through its design value sensitivity analysis. 76 Fed. Reg. at 41361. 

Without a shred of support, EPA concludes “[t]he method discussed in the documentation 

appears to be adequate for purposes of assessing the effect of area-wide emissions changes, such 

as are used in conformity budgets.” Id. In fact the only actual analysis provided by EPA led it to 

conclude:

EPA does not believe that the approach used by CARB and the District is adequate for 

determining interpollutant equivalency ratios. This issue would be better explored with a 

photochemical model.

TSD at 47. Moreover, as noted above, these ratios are derived from a sensitivity analysis of 

projected changes to design values that have no basis in reality. These design values are the 

product of modeling that assumes a relationship between emissions and ambient concentrations 

that never existed in the Valley. In other words, both the method and the underlying data used to 

invent this interpollutant ratio are invalid. EPA must disapprove the use of this ratio.
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XII. Conclusion

Commenters are extremely disappointed by EPA‟s about-face in its decision to now 

approve the PM2.5 Plan for the Valley. The reversal is particularly troubling because it is largely 

based on the exact same information EPA previously concluded undermined the approvability of 

the Plan. EPA is not claiming that the previously identified defects have been fixed because, in 

fact, no changes to the Plan have been made. Instead EPA has reverted to its prior practice of 

rubberstamping air quality plans that are certain to fail, and returned to the political strategy that 

has made California home to the most polluted air basins in the U.S.

Sincerely,

Paul Cort

Staff Attorney

Earthjustice

Sarah Jackson

Research and Policy Analyst

Earthjustice