UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IX
75 Hawthorne Street San Francisco, CA 94105

M EMORANDUM

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

Control District [EPA

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– Memorandum to Docket

F ROM Nicole Law, Project Lead

Rule Office, Air Division

T O File for Docket EPA

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I. Background

On June 20, 2013 (78 FR 371 30 ), 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 SD APCD.

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

a ction 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 t hat are not the subject of an ad verse 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 , includin g 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 contac t 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 difficult ies 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 J u n e 2 3 , 2013, a comment was received on State Implementation Plans; Approvals and Promulgations: California; San Diego Air Pollution Control District; Revisions, Docket ID:

EPA

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“ 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 a re 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. Applicabl e 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 t he 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

.3

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, a n 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 c omment, 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 ag ency’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
Thom pson , 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 th e subject of the rulemaking, is insignificant and insubstantial, and do es not provide reasonab le, 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 do es not require a response nor should such a comment deter EPA from issuin g a final rule.

B. Application to Comment Docket Item EPA

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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 6 7, 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 shou ld 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 beli eves that the comment received does not require a response as part of a final rule notice bec ause the comment lacks any specificity about why EPA should reconsider the proposed approval and lacks relevance to EPA’s actio n and the basis for
such action.