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 Va lley Air Pollution Control District‟s (“District”) and the California Air

Resources Board ‟s (“CARB”) state implementation p lan 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 s upport, EPA has decided to approve elements of the P lan 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 th at meets the requirements of the Clean Air Act.

I. Background

As EPA acknowledged in its proposal, a nnual and 24

- hour c oncentrations of fine particulate matter (“ PM 2.5 ”) 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 o ther 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. Near ly 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 respira tory and cardiovascular disease s such as asthma, lung disease, heart attack, and stroke.

L ong

- term exposure to PM 2.5 is also causally associated with premature death. Furthermore,

EPA has found that PM 2.5 - related premature deaths occur at levels well below the 1997 particulate matter standa rd 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 matter2

exposure. See Estimate of Premature Deaths Associated with Fine Particle Pollution (PM 2.5 ) 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 PM 2.5 , 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 PM 2.5 Plan, May 7, 2008. They claimed

that the area was actually meeting the 1997 24

- hour standard and that the trends in annual PM 2.5 “showed considerable progress over the last five years” and that t he 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 PM 2.5 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 De sign 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 P lan, 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 clear ly false. I n 2007, the year the District began developing i ts3

plan, there were 32 exceedance s of the standard. In 2008, the same year the Distri ct and CARB approved the plan that proclaimed attainment of the 1997 24

- hour standard, there were approximately 20 exceedance s 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 PM 2.5 standards is needed. Our comments follow EPA‟s notice of proposed rulemaking in identifying the major components of the P lan and the defects in each component that must be addressed in a revised p lan.

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 emiss ions 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 natio nal standard.

EPA proposes to approve the inventories in the 2008 PM 2.5 SIP claiming that they were

current and accurate “ at the time the Plan was developed and submitted .” 7 6 Fed. Reg. 41338,

41343 . This, however, is not the statutory test. Nowhere d oes the statute limit the accuracy requirement to “ at the time . . . submitt ed .” 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 mea nt 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 woul d 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

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

Here, EPA is aware that the C alifornia Air Resources Board (“CARB”) has undertaken a thorough review and update of its emissions estimates for both on

- roa d and off

- road diesel equipment , during which time it discovered that it had r adically overestimat ed 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 a nd the Off

-4

Road Large Spark

- Ignition Fleet Requirements, October 2010 , incl. Appendix D 1 (“2010 Off

Road 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 s taff conclude d that “ [t] he net result of

the re cession and methodology changes was an almost 80 percent reduction in emissions from what had previously been estimated, wit h about half of this reduction the result of the recession, and about half to changes in inventory methods.” 2010 Off

- Road ISOR at 2. 2 This conclusion suggests that the 2005 baseline inventory for off

- road diesel equipment was significantly

lower

— by about 40 pe rcent

— 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 PM 2.5 by about 1.41 tons per day for off

- road diesel equipment

. See Appendix A of the 2007 State Strategy an d 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. W hile the changes a re 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..., O ctober 2010, incl. Appendix G 3 , at 19 (“2010 T ruck & 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 PM 2.5 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 PM 2.5 Plan Inventory Numbers (tpd)

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

Truck & Bus

Rule Sources 249.4 NOx

9.89 PM 2.5 241 NOx

9.1 PM 2. 5 (no numbers

found) 165 NOx

6.3 PM 2.5 88.6 NOx ***

1.9 PM 2.5 ***

Off

- Road

Rule Sources 70.4 NOx

3.5 PM 2.5 58.8 NOx

2.9 PM 2.5 12 NOx **

.5 PM 2.5 ** 44.3 NOx

2.0 PM 2.5 14 NOx **

.6 PM 2.5 **

* Source: 2008 PM 2.5 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 i s 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 th e growth projections, noting that they may be over

relaxations 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 ; s ee also “Workshops on Information Regarding the Off

- Road, Truck and Bus and Drayage Truck Regulations,” September 3, 2010, av ailable

at: http://www.arb.ca.gov/msprog/ordiesel/documents/emissions_inventory_presentation_full_10_09_03.pdf5

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 PM 2.5 inventory . In its pro posal, 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.

Whichev er numbers are used, t he se 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 :

Emissio ns decreases in the base year tend to reduce the relative effect of controls and increase the projected PM 2.5 concentrations in the attainment year. We now know that base year emissions estimates were slightly too high, yet the model

matched the observed c oncentrations 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

- pr ediction, 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 error s in the base year inventory actually affec t 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 PM 2.5 emission s in the attainment year

. EPA claims that the results of this sensitivity modeling support its conclusion that new attainment demonstration modeling w ould 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 Table s B

- 2 and B

- 3 of TSD, explaining EPA‟s extrapolation of CAR B‟s sensitivity model results using a 6 percent change in base year NOx inventory and a 5 percent change in base year PM 2.5 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.6

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 s ection 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 sub mitted 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 mainta ins 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 PM 2.5 p lan must include updated inventories that reflect the bes t data available at that time. EPA should

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

III. RACM/RACT

EPA must disapprov e 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. Th e dem onstration also fails to evaluate VOC controls and provide adequate air quality modeling

docu mentation.

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 r ecently disapproved or partially disapproved

several r ules submitted by the District that were intended to reduce fine particulate matter and/or its precursors, including VOCs. A mong them are Rule 4352

— Solid Fuel

- Fired Boi lers, Steam Generators, and Process Heaters, Rule 4402

— Crude Oil Production Sumps, Rule 4625

— Wastewater Separators, and Rule 4570

— Large Confined Animal Facilities. O ther 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 b e corrected before EPA can approve the District‟s

RACM/ RACT demonstration

.

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

RACM/RACT demonstration in Appendix I of the P lan. T hirteen were identified for

commitments to achieve needed reductions of NOx, PM, or SO 2 called for in the P lan

. Of those

thirteen rules

, EPA has approved only six into the SIP

.7

Significantly, several of the rules intended to provide the majority of NOx and PM reductions from stationary so urces 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 i ts 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 charbroiler s
, which are responsible for 73 percent of the PM emissions from this source category, would greatly reduce

PM emissions

. T he Bay Area Air Quality Management District (“BAAQMD”) determined in its rule covering these sources that controls on under

- fired cha rbroilers could reduce PM emissions by as much as 90 percent. 4 Indeed, in its May 21, 2009 Staff Report proposing revision s 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 wa s preparing to do

. Both South Coast and BAAQMD found that controls on larger under

- fired charbroilers we re cost

- effective. In its initial staff report, the District also found that PM controls such as HEPA filters and electr ostatic

pr ecipitators were cost

- effective for under

- fired charbroilers. The reductions anticipated from

this rule are listed in the District‟s PM 2.5 plan commitments (see Table 2 below)

.

However, in its August 20, 2009 Staff Report, the District signifi cantly revised its cost estimates based on “new information received as a result of the post

- public hearing meetings”

with under

- fired charbroiler operators. I gnoring the compliance costs identified by the Bay Area and South Coast, the District increased its cost estimates and determined that controlling under

fired 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

tha n 2 tons per day o f PM down to just

. 02 tons per day

— cost ing the District 99 percent of the benefit anticipated from this rule in its PM 2.5 plan

.

Yet if the District had stuck with its own cost estimates, or used those identified by BAAQMD or South Coa st, it would not have eliminated these importa nt controls from its rule. BAAQMD adopted its rule in 2007, so these controls we re clearly considered feasible

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

insta lled 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 Man agement 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 the se important reductions

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

What happened with th e Commercial Charbroiling rule is representative of a much larger problem when it comes to rule development at the District. Very often, the District rejec ts 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 p otential control s . 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 no t 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 n ecessarily 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 im pact production, employment, competition, and prices. None of these impacts can be determined from the proposed “10 percent” test.

Rule 4103

— Open Burning

An other key rule for reducing NOx and PM emissions in the PM 2.5 plan is the District‟s

rule reg ulat ing 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 Dis trict decided to exempt from control the three largest source categories of NOx, PM, and VOCs covered by the rule. 6 T hese 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 t ons per year of VOC emissions on the table and greatly

reduce the emission reduction benefit originally anticipated by the P lan.

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 i ncorporates 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 ( a ttached t o 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 410 3,

submitted to EPA docket EPA

- R09

- OAR

- 2011

- 0547 on August 10, 2011.9

Rule 4354

— Glass Melting Furnaces

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

th e rule controlling emissions from g lass m elting f urnaces. In 2008, t he District adopted stringent new emission limits and compliance schedules for those limits

. However, t he 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 sou rce 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 t o 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 an d could not then be weakened. True to form, a t 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 enh anced Tier 4 limit early at the beginning of 2014.

The result i s 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 enha nced 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: Re

Evaluation of the October 2008 Amendments to Rule 4354 (Glass Melting Furnace s) at 11, April 15, 2010 (attached t o 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 Emiss ion Reduction Option for Boilers, Steam Generators, and

Process Heaters

Finally, the District claims that emission reductions from its revisions to its larg e boiler rule will contribute to the Valley‟s attainment. While the limits in the new r ule 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 econ omic incentive programs. 7 6 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 any1 0

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

, a nd 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 als o 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 document ation in order to be credited. Before crediting any SO 2 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 r eductions from these modifications are surplus and have not been used as emission reduction credits to offset emissio ns increases at

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

attainment demonstration SI P.

Since no documentation for NOx or SO 2 reductions has been presented in this proposal,

no credit can be assumed from this rule for the 2008 PM 2.5 Plan.

Rule 4352

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

Though R ule 4352 wa s not included as a specific commitment in the plan, it i s 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

determin e 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 R ule 4901 that EPA recently approved

, see 74 Fed. Reg. 57907 (N ovember 10, 2009) , the District added a “contingency provision” stating that, should the Valley fail to attain the 1997 PM 2.5 standard by the attainment date, the PM 2.5 concentration at

which mandatory wood burning curtailment would be required would be lo wered from 30 μg/m 3
to 20 μg/m 3 . 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 atta inment date.

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

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

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

PM 2.5 , 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 t he 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.

E PA‟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 exp ressly 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 unambiguou sly 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 Co ngress‟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 allowin g 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 revisi on 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 langu age 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 previous1 2

administrative construction.”). EPA‟s argument points to no ambiguity in the statute‟s requirement that State and local control measures relied u pon 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 attai nment 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 c ontrol 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

part icularly 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 ra ther 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 t hat 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 C ongress 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. § 751 5. 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 distinguishi ng 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 measur es) 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 E PA‟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 “gen erally” 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 measure s 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 i nitiatives 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 m easures 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 PM 2.5 emissio ns. 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 PM 2.5 emissions, including condensables wi th 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 propo sal to approve the air quality modeling in the 2008 PM 2.5 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 be1 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 a mbient 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 concen trations 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 predic tion 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 aver age concentration from 2012 to 2014 will be since this is the concentration that will determine whether the Valley has attained the PM 2.5 standard.

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

pro blems in the inv entory 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. S ee 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 anal ysis and weight of

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

V. Precursors

We dis agree with EPA‟s decision to disregard its earlier technical finding that VOC s are

a PM 2.5 precursor in the Valley and must be evalu ated for emission reduction measures. See 75 Fed. Reg. 74518, 74533 (November 30, 2010) . VOCs contribute directly and indirectly to the organic carbon fraction of PM 2.5 . This organic carbon composes approximately 40 percent of

PM 2.5 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 PM 2.5 in the Valley. Id. at 3

- 10. In addition, VOC may be the limiting factor in the secondary format ion 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 Envt l. Sci. & Te ch. 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 reduct ions of these are effective in reducing PM 2.5 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 PM 2.5 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 PM 2.5 concentrations in the nonattainment area.” 72 Fed. Reg. at 20590. EPA explains that there is no specific quantitative test but no tes that in1 5

determining whether the associated reduction in PM 2.5 concentrations is significant, “it is relevant to consider that relatively small reductions in PM 2.5 levels are estimated to result in worthwhile public health benefits.” Id. Whether VOCs should be considered a significant

contributor to PM 2.5 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 bel ieve 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 PM 2.5
pr ecursor. 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 PM 2.5 concentrations

.

1. Emission Inventory Information

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

focuses on NO

x emissions, but the inventory of VOC emissions is comparable to the inventory of

NO

x emissions. Accord ing 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 PM 2.5 emissions and about 75 percent of the size of the total NO

x inventory. Direct comparison of these number s 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 PM 2.5 . For example, Kleeman, et al. (2005) concluded

that one ton of NO

x reductions would yield roughly 0.29 tons of PM 2.5 reduction. Therefore, in assessing the relative importance of emissions to be reduced to address PM 2.5 concentrations, it is not enough merely to point to the large inventories of NO

x and claim that these are the most important emissions to be co ntrolled. Nonetheless, even if one were to compare raw inventory numbers, without adjusting them for their contribution to PM 2.5 , the VOC inventory is comparable to the NO

x inventory and should be given similar consideration for possible emission

reductio ns.

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 NO

x inventory because NO

x 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 pro jected to increase over that time period.

2. Speciation Data

All of the analysis on the chemical composition of PM 2.5 suggests that ammonium nitrate and organic carbon are the two largest components of this pollutant in the Valley and that they

each m ake up approximately 40 percent of total PM 2.5

. See, e.g. , Plan at H

- 12. Combined, ammonium nitrate and secondary organic compounds represent 50 percent of total PM 2.5

. See, e.g., id. at H

- 20 to 21. This latter estimate is consistent with the Plan‟s st atement 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 PM 2.5 .” Id. at
3

- 8. Because VOCs play a role in the formation of both secondary organic aerosols and1 6

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

to PM 2.5 concentrations when they contribute to the formation of those components making up roughly half o f all PM 2.5 in the Valley.

3. Modeling

Multiple modeling studies suggest that VOC is a significant contributor to PM 2.5 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 presentatio n to the CRPAQS Data Analysis Workshop, Lurmann, et al. , noted that ammonium nitrate concentrations are limited by the rate of HNO 3 formation and that HNO 3 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 NO

x , “[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 dayt ime photochemistry producing ammonium nitrate, suggests that VOC controls could produce better results in terms of PM 2.5 reductions than other pollutant controls.

Finally, Kleeman, et al. (2005) found that a 50 percent reduction in NO

x 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 r educing nitrate conc entrations 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 PM 2.5 because significant VOC reductions are less effective than significant NOx redu ctions at reducing PM 2.5 concentrations. The test of whether VOC emissions significantly contribute to PM 2.5 concentrations, however, is not whether other controls are more efficient, but whether a significant change in VOC emissions would provide a signif icant change in PM 2.5 concentrations.

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

wit h PM 2.5 is through NOx and SO 2 reductions, and not VOC reductions, that this choice should

somehow influence whether EPA f inds VOCs to be a PM 2.5 precursor. Yet even EPA admits that the studies clearly show that significant reductions in VOCs lead to a significant change in PM 2.5 concentrations

. See TSD at 58 (noting “[studies] provide evidence that control of VOC by itself can sign ificantly reduce ambient PM 2.5 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 so me times and places, though generally less so than NO x control ” ). Even the study by Kleeman, et al. , demonstrates that VOCs are a significant contributor to PM 2.5 concentrations in the Valley because a significant reduction in VOC emissions would result in a significant reduction in PM 2.51 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 redu ced 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 regar d 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 t he standard. VOC reductions of 50% would give us about 1.4 micrograms of improvement. That is significant...

Notably, sulfates (SO 2 ) are presumed by EPA to be PM 2.5 precursors. In the Valley, as Mr. Sweet explains above, VOCs are a more significant contri butor to PM 2.5 formation than even SO 2 , a presumed precursor. This alone should support the conclusion that VOCs are a PM 2.5 precursor and should be analyzed and controlled in the Plan.

A ll of these studies looked only at the contribution to nitrate s, which are about the same portion of PM 2.5 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 perc ent reduction in VOC emissions reduced PM 2.5 levels by 1.3 μg/m 3 annually and 8.7 μg/m 3 for 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

PM 2.5 NAAQS of 15 μg/m 3 and the 1997 24

- hour NAAQS of 65 μg/m 3 , these projected reductions appear significant.” Id. EPA also explains that “In addition, NO x and VOC reductions may have a syn ergistic effect, such that the ambient PM 2.5 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 s trategy.

Clearly, t he benefits of VOC reductions on secondary organic carbon must be included in assessing the contribution to PM 2.5 and any such results must acknowledge that current air quality models are likely to underestimate the reduction in second ary organic particulate matter

formation from controls on VOCs. T he relatively large inventory of VOC emiss ions coupled with the fact that, as explained in the RACM/RACT section above, t here 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 PM 2.5 concentrations in the Valley in a timely fashion. EPA should disapprove the 2008 Plan for its failure to address VOC

emissions. And i n 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 justif ies the presumption against VOCs being a precursor to PM 2.5

.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 fla ws 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 ru les, the District has exempted significant sources of emissions with no rational basis. In addition, a s noted above and below, the record is full of examples of delayed controls ( e.g. , retrofits of diesel equipment including the failure to address agricul tural 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 d emonstration

, 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 level s. E ven 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. 7 6 Fed. Reg. at 41355 . EPA‟s analysis o f 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 approvin g attainment demonstrations .” Id. EPA does not, however, document how it determines the level of remaining reductions and what, exactly, is meant by “reasonably close.”

I t is simply not reasonable to approve a “plan to make a plan

, ” which is effective ly 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 estimat ed 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 and1 9

PM and has failed to even begin developing the Agricultural Equipment Rule, which wa s 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 rel y on both methodology changes and significant adjustments of emissions inventories and growth projections to essent ially 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 ne ed 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 i s 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 se ction 110(k)(4) allows EPA to grant “conditional approval” of a SIP lacking certain statutory elements “b ased 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

attemp ts 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 me asures 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 emiss ion 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 (9 th Cir. 2004); see also Citizens for a Better Environment v. Metropolitan Transp. Comm’n , 746 F. Supp. 976, 980 (N.D. Cal. 1990) (cou rts can only enforce “express” or “specific” strategies for attaining CAA standards). Mere approval of an aspirational2 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 B ienestar de Earlimart v. Warmerdam , 539 F.3d 1062, 1067 (9 th 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” conce rning 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

Com ité , 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 onl y 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 m easures must also be enforceable.

Before EPA can approve the commitments in the PM 2.5 Plan, it must explain how the promise to reduce emission s by some amount is a “standard or limitation” en forceable under

section 113 or 3 04 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 hi ghlighted above, EPA must also disapprov e 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 t he 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 a ssumes 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 m easures in the PM2.5 Plan, but the shortfall targets must be recalculated using valid methods and results.2 1

X. Motor Vehicle Emission Budgets

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

its conclusion that the revi sed 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 t he 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. S ee 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 transportatio n 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 violati on 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 E PA 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 abov e, 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 neve r 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.2 2

XII. Conclusion

Commenters are extremely disappointed by EPA‟s about

- fac e in its decision to now approve the PM 2.5 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 t he 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 t hat 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