UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION IX

75 Hawthorne Street

San Francisco, CA 94105

MEMORANDUM

SUBJECT Revisions to the California State Implementation Plan, San Diego Air Pollution 

Control District [EPA-R09-OAR-2013-0362] – Memorandum to Docket

FROM Nicole Law, Project Lead

Rule Office, Air Division

TO File for Docket EPA-R09-OAR-2013-0362

I. Background

On June 20, 2013 (78 FR 37130), EPA issued a direct final rulemaking notice (DFRN) to 

approve revisions to the California State Implementation Plan (SIP). The revisions pertain to 

adoption through incorporation by reference of San Diego Air Pollution Control District 

(SDAPCD) Rule 67.0 Architectural Coatings. EPA is approving these revisions that adopt 

volatile organic compound (VOC) limits for architectural coatings in the SDAPCD. 

In the accompanying proposal notice to the DFRN, EPA stated:

“In the Rules and Regulations section of this Federal Register, we are approving this 

local rule in a direct final action without prior proposal because we believe this SIP 

revision is not controversial. If we receive adverse comments, however, we will publish 

a timely withdrawal of the direct final rule and address the comments in subsequent 

action based on this proposed rule. Please note that if we receive adverse comment on an 

amendment, paragraph, or section of this rule and if that provision may be severed from 

the remainder of the rule, we may adopt as final those provisions of the rule that are not 

the subject of an adverse comment.”

EPA also noted in the DFRN that:

“All comments will be included in the public docket without change and may be made 

available online at www.regulations.gov, including any personal information provided, 

unless the comment includes Confidential Business Information (CBI) or other 

information whose disclosure is restricted by statute. Information that you consider CBI 

or otherwise protected should be clearly identified as such and should not be submitted 

through www.regulations.gov or e-mail. www.regulations.gov is an “anonymous access” 

system, and EPA will not know your identity or contact information unless you provide it 

in the body of your comment. If you send e-mail directly to EPA, your e-mail address 

will be automatically captured and included as part of the public comment. If EPA 

cannot read your comment due to technical difficulties and cannot contact you for 

clarification, EPA may not be able to consider your comment. Electronic files should 

avoid the use of special characters, any form of encryption, and be free of any defects or 

viruses.”
2

II. Comment Received

On June 23, 2013, a comment was received on State Implementation Plans; Approvals and 

Promulgations: California; San Diego Air Pollution Control District; Revisions, Docket ID: 

EPA-R09-OAR-2013-0362 via the www.regulations.gov website that stated:

“I am a resident of Los Angeles, 63, disabled with left brain injury resulted from 

domestic violence, fibromyalgia, unstable angina, physical problem, etc.

Since March 2006, I live in a HUD-subsidized senior apartment in Baldwin Park, County 

of Los Angeles, CA. I suffered from further health problems caused by toxic mold in 

indoor air due to no timely repair to internal leaks in ceiling.

When I filed a complaint to the local Environmental Health for enforcement, the 

inspectors told me only visible mold could be enforced, excluding hidden mold (inside 

ceiling) and invisible mold (mold spores). 

According to posted information about dampness and toxic mold provided by CDC, NIH, 

WHO, Mayo Clinic, and EPA, water damaged buildings usually are usually with mold 

spores, such as aspergillus, penicillium, basidospores, cladosporium, and alternaria, etc. 

However, Toxic Mold Protection Act of 2001 is not enforced by inspectors for protecting 

tenants and public health.

Should the Air Quality State Implementation Plans include poor quality of indoor air 

caused by dampness and toxic mold spores because of health effects to mold?

Thank you for your attention to this issue.”

III. EPA’s Analysis & Review

A. Applicable Standards Regarding Comments

Generally, EPA is required to consider any comments received during the public comment 

period, specifically any comments adverse to or opposing the proposed action. In the final rule, 

EPA is required to respond to significant comments or criticisms submitted during the comment 

period.1

However, this does not mean EPA must consider or respond to insubstantial comments or to 

comments that fail to provide EPA with enough information to address the alleged failing of the 

rule. 

 

1 This is required under either CAA §307(d)(6) or Administrative Procedures Act (APA) §553 (5 U.S.C. 

§553). CAA §307(d) applies to the rulemaking actions enumerated in CAA §307(d)(1) which includes “such other 

actions as the [EPA] may determine.” Both CAA 307(d) and APA §553 have substantively the same process and 

requirements regarding comment. 
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The Court of Appeals for the D.C. Circuit has concluded that “the opportunity to comment is 

meaningless unless the agency responds to significant points raised by the public.” Home Box 

Office, Inc. v. FCC, 567 F.2d 9, 35-36 (D.C. Cir. 1977). However, the same Court has indicated

“[t]hat said, an agency’s failure to address a particular comment or category of comments is not 

an APA violation per se. See, e.g., Thompson v. Clark, 741 F.2d 401, 408 (D.C. Cir. 1984) 

(‘[APA § 553] has never been interpreted to require the agency to respond to every comment, or 

to analyze every issue or alternative raised by the comments, no matter how insubstantial.’).” 

See also Sherley v. Sebelius, 689 F.3d 776 (D.C. Cir. 2012), cert denied 133 S.Ct. 847 (2103). 

The D.C. Circuit has further stated: “We review an agency’s response to comments under the 

same arbitrary-and-capricious standard to which we hold the rest of its actions. See Home Box 

Office, 567 F.2d at 35 n.58. Put simply, “[t]he failure to respond to comments is significant only 

insofar as it demonstrates that the agency’s decision was not based on a consideration of the 

relevant factors.” Covad Communs. v. FCC, 450 F.3d 528, 550 (D.C. Cir. 2006) (quoting 

Thompson, 741 F.2d at 409), reh’g denied 2006 U.S. App. LEXIS 21377 (D.C. Cir. Aug. 17, 

2006). 

In short, EPA believes that the comment submitted does not concern the subject of the 

rulemaking, is insignificant and insubstantial, and does not provide reasonable, enough or any 

information regarding any alleged flaw in EPA’s decision-making process or EPA’s 

consideration of the relevant factors. Therefore, EPA concludes that the comment does not 

require a response nor should such a comment deter EPA from issuing a final rule.

B. Application to Comment Docket Item EPA-R09-OAR-2013-0362-0010

While the submitted comment is relevant to the California SIP, it is not relevant to the approval 

of SDAPCD Rule 67 Architectural Coatings. The commenter never mentions Rule 67, there is 

no connection made or attempted between mold and architectural coating, and the comment 

being made concerns living conditions in Los Angeles, while the approved rule concerns San 

Diego.

Furthermore, the comment does not articulate how EPA should change its decision (or even 

argue that EPA should do so). EPA concludes that this comment was either misdirected and 

meant to address some other rulemaking or that this comment is insignificant, insubstantial, and 

unrelated to the present rulemaking. Therefore, EPA concludes that this comment does not 

require a response.

EPA believes it provided fair warning that comments provided without contact information via 

the www.regulations.gov anonymous portal might not be considered if EPA cannot read the 

comment due to technical difficulties. In this case, EPA did not have any contact information 

and so was unable to find out if there was more substance to what the commenter tried to submit.

IV. Conclusion

For the reasons stated above, EPA believes that the comment received does not require a 

response as part of a final rule notice because the comment lacks any specificity about why EPA 

should reconsider the proposed approval and lacks relevance to EPA’s action and the basis for 

such action.