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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

EL COMITE PARA EL BIENESTAR DE

EARLIMART, an unincorporated

association; ASSOCIATION OF

IRRITATE RESIDENTS, an NO. CIV. S-04-882 LKK/KJM

unincorporated association;

COMMUNITY AND CHILDREN’S

ADVOCATES AGAINST PESTICIDE 

POISONING, a California non-profit

corporation; WISHTOYO FOUNDATION,

a California non-profit corporation;

and VENTURA COASTKEEPER, a California

non-profit corporation,

Plaintiffs,

v.

PAUL HELLIKER, in his official O R D E R

capacity as Director, Department

of Pesticide Regulation; TERRY

TAMMINEN, in his official capacity

as Secretary, California Environmental

Protection Agency; CATHERINE 

WITHERSPOON, in her official capacity

as Executive Officer, Air Resources

Board; ALAN LLOYD, in his official

capacity as Chairman, Air Resources

Board; and WILLIAM BURKE, JOSEPH CALHOUN,

DORENE D’ADAMO, MARK DESAULNIER, C. HUGH

FRIEDMAN, WILLIAM F. FRIEDMAN, MATTHEW

McKINNON, BARBARA PATRICK, BARBARA RIORDAN

and RON ROBERTS, in their official 

capacities as members, Air Resources Board,

Defendants.

 /

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1 On December 16, 2004, this court granted Air Coalition

Team's motion to intervene pursuant to Fed. R. Civ. P. 24(a). On

April 25, 2005, the court denied defendants’ motion for judgment

on the pleadings. 

2 Plaintiffs bring suit against the following defendants in

their official capacities: Paul Helliker, Director, Department of

Pesticide Regulation; Terry Tamminem, Secretary, California

Environmental Protection Agency; Catherine Witherspoon, Executive

Officer, Air Resources board; Allan Loyd, Chairman, Air Resources

Board; and William Burke, Joseph Calhoun, Dorene D’Adama, Mark

Desaulnier, C. Hugh Friedman, William F. Friedman, Matthew

McKinnon, Barbara Patrick, Barbara Riordan, Ron Roberts, members,

Air Resources Board. 

In their original complaint, plaintiffs brought only one claim

under the Act. On July 14, 2005, plaintiffs amended their

complaint to add a second cause of action. 

3 Plaintiffs include El Comite para El Bienestar de

Earlimart, Association of Irritated Residents, Community and

Children’s Advocates Against Pesticide Poisoning, Wishtoyo

Foundation, and Ventura Coastkeeper. Pls.’ Compl. at 1. 

Defendants do not challenge plaintiffs’ standing, nor could they

reasonably do so.

2

Pending before the court are cross-motions for summary

judgment filed by plaintiffs and state defendants.1 The suit

involves two claims made by plaintiffs effectively brought against

several state agencies, under the Clean Air Act ("The Act" or

“CAA”), 42 U.S.C. §§ 7401, et seq.

2 In their first cause of

action, plaintiffs, unincorporated associations and non-profit

organizations representing members who live and work in affected

areas,3 allege that defendants failed to adopt and implement

regulations by June 15, 1997 as required by the California State

Implementation Plan (“SIP”). In their second claim, plaintiffs

allege that defendants improperly calculated the 1990 baseline

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4 Plaintiffs request the following relief:

a. An order declaring that defendants are in violation

of the Act and the 1994 Ozone SIP by failing to adopt

and implement regulations

b. A preliminary and permanent injunction directing

defendants to adopt, implement, and submit to the U.S.

EPA regulations necessary to reduce pesticide-related

VOC emissions by 20% from the 1990 baseline for the

Sacramento, San Joaquin Valley, Ventura, and Southeast

Desert nonattainment areas no later than January 1,

2005.

c. That the court retain jurisdiction over this matter

until defendants have complied with their duties as

described above

d. Costs of litigation, including reasonable attorney

and expert witness fees pursuant to the CAA. 

5 To say the least, the court finds itself bemused by the

result. Nonetheless, given the statute, the means of adopting

SIPS, and the record in the matter at bar, the result, while

ironic, is not inconsistent.

3

emission inventory in violation of the SIP.4 Plaintiffs and state

defendants move for summary judgment on both claims. 

I resolve the matter based on the pleadings, the parties’

papers, and after oral argument. Remarkably, I conclude that

although plaintiffs’ motion for summary judgment as to the second

cause of action must be denied, by virtue of the fact that the

defendants calculated the baseline in a manner inconsistent with

the SIP, the plaintiffs’ motion for summary judgment on the first

cause of action must be granted.5

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4

I.

THE STATUTE AND REGULATORY PROCESS

In its previous order, the court outlined the statutory and

regulatory framework of the CAA. Nonetheless, the framework is

indispensable for resolution of the instant motion, and thus the

court will repeat itself. 

The CAA requires the U.S. Environmental Protection Agency

(EPA) to promulgate health-based standards for certain pollutants,

including hydrocarbons and nitrogen oxides which produce ground

level ozone. These standards are called the National Ambient Air

Quality Standards (NAAQS). 42 U.S.C. § 7409(a),(b). Each state

is required under the CAA to adopt a State Implementation Plan

(SIP) to satisfy the NAAQS requirements. 42 U.S.C. § 7410(a)(1).

Specifically, each state is mandated under § 110(a) of the Act, 42

U.S.C. § 7410(a), to adopt a "plan which provides for

implementation, maintenance, and enforcement" of the National

Ambient Air Quality Standards and to submit its SIP to the EPA for

approval. 

A SIP must be approved by the EPA to insure that it meets the

criteria specified in § 7410. A SIP, "once adopted by a state and

approved by the EPA, becomes controlling and must be carried out

by the state." See Bayview Hunters Point Community Advocates, 366

F.3d 692, 695 (9th Cir. 2004)(citing Friends of the Earth v. Carey,

535 F.2d 165, 169 (2nd Cir. 1976), cert. denied, 434 U.S. 902

(1977)). Approved SIPs are enforceable by either the State, the

EPA, or via citizen suits brought under Section 304(a) of the CAA.

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6 Plaintiffs allege that all five air basins or "ozone

nonattainment areas" at issue in this case have been designated

“severe” or “extreme” for the one-hour and eight-hour ozone NAAQS,

except the Southeast Desert and Ventura nonattainment areas which

have been designated “moderate” for the eight-hour ozone NAAQS.

Compl. at 6.

5

Id. (citing Baughman v. Bradford Coal Co., 592 F.2d 215, 217 n. 1

(3d Cir. 1979)); 42 U.S.C. § 7604(a).

The EPA designates areas of states as “attainment” or

“nonattainment” based on whether they meet the NAAQS for a

particular pollutant, such as ozone, or whether each areas

“attains” the NAAQS. 42 U.S.C. § 7407(d). Ozone nonattainment

areas are further classified as Marginal, Moderate, Serious, Severe

or Extreme, depending on the severity of the ozone pollution

problem.6 42 U.S.C. § 7511(a).

A. ESTABLISHING THE 1990 BASE YEAR INVENTORY AND TRACKING

One requirement for all nonattainment areas is the

establishment of an emissions inventory. The CAA requires that

each state submit a comprehensive inventory of all sources of the

relevant pollutant in the nonattainment area. 42 U.S.C. 

§ 7502(c)(3). The inventory sets out the classes and categories

of emission sources so control strategies can be used to address

emissions from those sources. 

In the case of ozone, which is the product of a chemical

reaction, the inventory focuses on those sources that emit the

ozone-forming pollutants. Nitrogen oxides is such a precursor.

VOCs are other ozone precursors. VOCs are found in many products,

including pesticides. Because ozone is not a directly-emitted

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6

pollutant, the inventory for ozone requires the cataloguing of the

total amount of actual VOC and NOx emissions. In the case of the

pesticide element of the Ozone SIP, because volatile organic

compounds (VOCs) react with oxides of nitrogen (Nox) in the

presence of heat and sunlight to form ozone, the state must monitor

the VOCs emitted by each pesticidal product to determine the

inventory, or the catalog of emission sources.

1. Enforceable Control Measures

Each SIP must include enforceable emission limitations and

other control measures necessary to attain the NAAQS, as well as

timetables for compliance. 42 U.S.C. § 7410(a)(2)(A) (a SIP must

include “enforceable emission limitations, and such other control

measures, means or techniques . . . as may be necessary or

appropriate to meet the applicable requirements of [the Act]”); 42

U.S.C. § 7502(c)(6) (a SIP [for nonattainment areas] shall include

enforceable emission limitations and control measures “as may be

necessary or appropriate to provide for attainment” of the NAAQS

by the applicable attainment date.). These control measures are

“strategies” that the court may enforce. Bayview Hunters Point

Community Advocates v. Metro. Transportation Comm’n, 366 F.3d 692,

701 (9th Cir. 2004).

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26 7 Facts are undisputed unless otherwise noted. 

7

II.

 FACTS7

 Pesticides, i.e., chemical products used to treat

agricultural land, agricultural crops, and structures for

protection from insects, fungus, rodents, and other pests emit VOC,

which reacts with oxides of nitrogen to form ozone. Pls.’ SUF 2.

Ozone pollution damages lung tissue, resulting, inter alia, in

reduced lung capacity. It also damages crops and vegetation,

exacerbates asthma, increases respiratory and cardiovascular

hospital admissions, and increases school and work absenteeism.

Pls.’ SUF 3.

The Sacramento Metropolitan, San Joaquin Valley, South Coast,

Southeast Desert, and Ventura areas are designated nonattainment

under the federal one-hour and eight-hour ozone standards. Pls.’

SUF 4.

A. DEVELOPMENT OF THE PESTICIDE ELEMENT OF THE 1994 OZONE SIP

On May 5, 1994, EPA proposed a Federal Implementation Plan

(“FIP”) containing measures, including pesticide controls, intended

to bring the South Coast, Sacramento and Ventura areas into

compliance with the one-hour ozone NAAQs standard. Pls.’ SUF 5.

Under U.S. EPA Region 9 Air division Director David Howekamp’s

(“Howekamp”) direction, and parallel with the development of the

FIP, EPA worked with California regulatory agencies to develop a

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8 Dr. Howekamp explained that his primary responsibility at

U.S. EPA was to “oversee implementation of the Clean Air Act and

radiation programs in California, Arizona, Nevada and Hawaii.” 

Among his duties, Dr. Howekamp “interpreted applicable state and

local laws and regulations and integrated them with Federal Laws.”

His employment required him to work “closely with state and local

regulatory agency officials and elected officials in state

legislatures and on local air district boards to adopt needed laws,

regulations, and measures.” Howekamp Decl. ¶¶ 3, 6.

9 California developed the 1994 Ozone Sip under threat of an

EPA takeover of California’s ozone air quality planning. On July

1, 1992, the Ninth Circuit held that EPA had a duty to promulgate

a FIP for the South Coast Nonattainment area because EPA had

disapproved of the area’s ozone and carbon monoxide state

implementation plans in 1998. See Coalition for Clean Air v. U.S.

EPA, 971 F.2d 219, 228-229 (9th Cir. 1992). Section 110(c)(1)(A)

requires EPA to promulgate a FIP two years after EPA disapproves

of a state implementation plan, unless the state corrects such

deficiencies and EPA approves the plan. 42 U.S.C. § 7410(c)(1)(A).

On May 5, 1994, EPA proposed a FIP containing measures, including

pesticide controls, for bringing the South Coast, Sacramento and

Ventura nonattainment areas into attainment within the one hour

ozone NAAQS. 59 Fed. Reg. 23264, 23220-23323 (May 5, 1994). 

8

legally sufficient ozone SIP.8 Pls.’ SUF 6. 

EPA’s goal was to approve a SIP that would withstand legal

challenge and allow California state and local regulatory agencies

to replace the FIP and regain control of ozone regulation.9 Pls.’

SUF 7. On November 15, 1994, the California Air Resources

Board (“ARB” or “CARB”) adopted and submitted the 1994 Ozone State

Implementation Plan (“SIP”). The SIP contains the Pesticide

Element, as adopted by the Department of Pesticide Regulation

(DPR). Pls.’ SUF 8; Defs.’ SUF 1.

B. THE PESTICIDE ELEMENT 

The Pesticide Element, as submitted to EPA on November 15,

1994, stated that the “plan is designed to reduce volatile organic

compound (VOC) emissions from agricultural and commercial

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10 The Plan also stated that a “determination that additional

regulatory measures will be made if it is found that the existing

program measures are not sufficient in achieving established VOC

reductions and that VOC reductions from the use of pesticides are

feasible.” Plan at 10.

9

structural pesticide applications by a maximum of 20 percent from

the 1990 baseline emission inventory to the year 2005.” Pls.’ SUF

9. The Pesticide Element declared that “[a] decision whether

additional regulatory measures to ensure that reductions in

pesticidal VOC emissions are achieved will be made by 1997.” Pls.’

SUF 10 (citing 1994 Pesticide Plan (“Plan”) attached as Exhibit 1

to Newell Dec. at 10).10 

The Pesticide Element relies on an inventory of pesticide VOC

emissions to “provide the basis to determine what additional

regulatory measures are needed to achieve targeted pesticidal VOC

reductions.” Pls.’ SUF 11. The initial inventory - the so-called

“1990 baseline inventory” - and all subsequent inventories were

generated by multiplying the amount of pesticides used by the VOC

content of those pesticides. Pls.’ SUF 12. Pesticide Use Report

(“PUR”) data provides the amount of pesticides used while VOC

emission factor (or “emission potential”) estimates pesticides’ VOC

content. Dr. Randy Segawa, Senior Environmental Research Scientist

at DPR and the supervisor for DPR’s VOC emissions program,

explained how DPR calculates the inventory:

The calculation of our VOC inventory is based on two

pieces of information of which pesticide use report data

is one. The pesticide use reports provide the

information regarding the amount of pesticides applied,

the number of acres treated, the crop treated, the

location and things regarding the application of a

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11 Dr. Segawa explained how DPR used default emission

potentials:

The department requested emission potential data from

several hundred registrants in which they would provide

information regarding the VOC content of the pesticide

products included in the reevaluation. Once the

department received that information, then DPR staff

reviewed the information and if appropriated approved it

and entered the data into an electronic database . . .

In the case where we did not receive the emission

potential data from registrants, then DPR had other

methods to estimate or make assumptions as to what the

emission potential data for those remaining products

was. 

Pls’ SUF 16.

10

particular pesticide product. We take the amount

reported in the pesticide use reports and multiply it by

the emission potential to calculate the VOC emission for

each pesticide application reported in the pesticide use

reports. 

Pls.’ SUF 14.

To create the VOC emission factor, DPR either solicited

emission potential data from pesticide registrants (manufacturers)

or, in the absence of that data, applied the highest emission

potential as a default.11 Pls.’ SUF 15. If the registrant did not

submit the emission potential data, the product was to “be given

the highest VOC emission factor for the pesticide product.” Pls.’

SUF 17. 

The Pesticide Element also states that “[i]n cooperation with

DPR, the California Air Resources Board (ARB) will develop a

baseline inventory of estimated 1990 pesticidal VOC emissions based

on 1991 pesticide use data, adjusted to represent the 1990 base

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12 The pesticide element also states that “[t]his baseline

inventory may be adjusted if empirical data are developed to

determine the impact of temperature, treated substrate (foliage,

soil, water, etc.), application technique, and other conditions on

VOC emissions.”

13 The element notes that “[u]nder the Clean Air Act

Amendments of 1990, the baseline inventory must be based on 1990

emissions.” 

11

year, and on the VOC emission potential data.”12 Pls.’ SUF 19. It

explicates that “[t]he base year inventory will be created from the

1991 Pesticide Use Report and then adjusted by a factor to

represent the 1990 base year.”13 The Pesticide Element also

explained that “[f]ull pesticide use reporting began in 1990" and

that “[i]t is believed that the 1991 pesticide use report would be

a more accurate source to determine the 1990 pesticidal VOC

emissions.” Pls.’ SUF 20. 

DPR Deputy Director Paul Gosselin (“Gosselin”) testified as

to the difference between using 1990 and 1991 Pesticide Use

Reports:

Before we had put this plan together we had conducted a

number of workshops on different aspects of the

methodology knowing that the beginning part of this

process had to begin with 1990. It just so happened

that that coincided with the beginning of the Full Use

Report Program which began in 1990.

There was a lot of concern from all parties that the

first year of the collection of pesticide use data was

probably not the most accurate in terms of compliance,

in terms of accuracy for any sort of huge program

getting undertaken. So what was decided was there was

a lot more comfort from all parties that the 1991

pesticide use report was far more accurate, far more

complete than 1990, and that was probably the better

year to start this program with and use that as sort of

a starting point to determine looking back as to what

the starting point in 1990 should be. 

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12

Pls.’ SUF 21. 

B. HOWEKAMP’S DECLARATION

As Director of the Air Division at EPA Region 9, Howekamp

oversaw the implementation of the Clean Air Act in California,

including the approval of the 1994 Ozone SIP. Pls.’ SUF 22. In

order for EPA to approve the SIP and relieve itself of the

obligation to supervise the FIP, EPA had to ensure that, as the CAA

required, all measures in the SIP were legally enforceable

(including enforcement by citizen law suit) and that all needed

emission reductions would be achieved by the attainment deadlines

established in the Act. 

On March 20, 1995, after reviewing the Pesticide Element as

submitted to EPA, Howekamp requested a "technical clarification"

from DPR Director James Wells (“Wells”) on (1) the calculation of

the 1990 baseline inventory for pesticide-related VOC emissions;

(2) the percentage reduction targets (as specified in a table in

the letter); (3) the deadline to adopt necessary regulations; and

(4) why VOC emissions from adjuvants were not regulated by the

pesticide component. Pls.’ SUF 24. 

On March 31, 1995, Wells responded to Howekamp's March 20

letter. Pls.’ SUF 25. Even after this clarification, EPA could

not approve the pesticide component because it was inconsistent

with the CAA. Pls.’ SUF 26. In order to ensure compliance with

the CAA, Howekamp, in a letter dated April 21, 1995, requested that

Wells explicitly state that California commits to adopt and submit

regulations by June 15, 1997 (or earlier). Those regulations, he

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13

explained, must limit VOC emissions from pesticides to specific

percentages of the 1990 base year emissions by specific years and

in specific nonattainment areas (described in 40 C.F.R. Pt. 81.305)

as listed in the following table: 

Reductions from 1990 Baseline 

Ozone Nonattainment Area 1996 1999 2002 2005

Sacramento Metro 8% 12% 16% 20%

San Joaquin Valley 8% 12% 16% 20%

South Coast 8% 12% 16% 20%

Southeast Desert 8% 12% 16% 20%

Ventura 8% 12% 16% 20%

Exhibit 3 to Howekamp Dec. at 0223. 

Howekamp specifically noted that “[i]n order to be consistent

with Sections 110(k)(2) and 110(k)(4) of the CAA, such commitments

should not extend beyond June 1997.” Accordingly, he wrote that

“[t]he primary issue regarding the pesticide component is the date

by which California has committed to adopt and submit regulations

should they be needed to reduce VOC emissions.” Defs.’ SUF 2. Put

directly, EPA's goal to replace the FIP with a legally sufficient

regulation was dependent on such an enforceable commitment to

ensure that the needed emission reductions would be achieved on or

before the attainment dates prescribed by the Act. 

1. Clarification of the SIP

CARB Executive Officer James Boyd submitted DPR's

clarification of the Pesticide Element in a letter dated May 11,

1995. His letter reads in part:

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14

I am writing to transmit a clarification by the

California Department of Pesticide (DPR) of the

pesticide element of the California State Implementation

Plan (SIP) for Ozone, submitted to the U.S.

Environmental Protection Agency (U.S. EPA) on November

15, 1994. The enclosed letter from DPR clarifies that

in the SIP, California has committed to adopt and submit

to U.S. EPA by June 15, 1997 any regulations necessary

to achieve the emission reductions from pesticides

specified in the letter. 

Pls.’ SUF 31. 

The “enclosed letter from DPR” adverted to by Boyd was

actually a May 9, 1995 memorandum from Wells of DPR to Boyd (“Wells

memo”). The Wells memo provided that:

The Department of Pesticide Regulation commits to adopt

and submit to U.S. EPA by June 15, 1997, any regulations

necessary to reduce volatile organic compound emissions

from agricultural and commercial structural pesticides

by specific percentages of the 1990 base year emissions,

by specific years, and in specific nonattainment areas

(described in 40 C.F.R. 81.305), as listed in the

following table:

Reductions from 1990 Baseline

Ozone Nonattainment Area 1996 1999 2002 2005

Sacramento Metro 8% 12% 16% 20%

San Joaquin Valley 8% 12% 16% 20%

South Coast 8% 12% 16% 20%

Southeast Desert 8% 12% 16% 20%

Ventura 8% 12% 16% 20%

Pls.’ SUF 32. 

The Wells memo satisfied Howekamp that the pesticide component

of the 1994 Ozone SIP now included an enforceable commitment to

adopt and submit any regulations needed to reduce VOC emissions by

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14 The proposed rule provided that “[t]his clarification is

considered part of California’s SIP.” 

15

the applicable attainment dates in the Act. According to Howekamp,

the May 11, 1995 letter from Boyd and the May 1995 memo were

considered by EPA to be part of California's SIP when EPA proposed

approval of the measure on March 18, 1996.14 Pls.’ SUF 33. The

Notice of Proposed Rulemaking also noted that “California’s

pesticide commitment is described in a letter from DPR to CARB

[James Well (DPR) to James Boyd (CARB), dated November 15, 1994].

Defs.’ SUF 7. 

C. LETTER FROM JAMES BOYD (CARB) TO DAVID HOWEKAMP (U.S. EPA) 

(“The Howekamp Letter”)

On June 13, 1996, Boyd of CARB submitted a letter to Howekamp

of the U.S. EPA. It requested that EPA delete the table labeled

"Reductions from 1990 Pesticide Emissions Baselines" and explained

that the pesticide "commitment is for a 20% reduction from 1990

levels by 2005 in each SIP area, except [San Diego].” Pls.’ SUF

35. The letter contained an Attachment A which was asserted to be

a detailed table of corrections and an Attachment C, a summary

spreadsheet identifying the reductions that the State committed to

achieve. Defs.’ SUF 10. 

As Howekamp understood the June 13, 1996 letter from CARB,

California requested that the informational tables included in the

notice of proposed rulemaking be revised to show that emission

reductions from the pesticides measure are used in the SIP only for

the overall demonstration of attainment, not for reasonable further

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15 The FOIA Response, Exhibit S, states that the attached

documents are identified and codified at 40 C.F.R. 

§§ 52.220(c)(204)(i)(A)(6) and 52.220(c)(236)(i)(A)(l). Defs.’ SUF

15. 

16

progress. Pls.’ SUF 81. Thus, in his declaration, Howekamp avers

that although, in compliance with the State’s request, the Final

Rule omitted the tables that set forth specific percentage

reductions, “the Final Rule made no change” to the treatment of the

May 11 letter and May 9, 1995 memorandum as “part of California’s

SIP when EPA proposed approval of the measure.” U.S. EPA approved

the pesticide measure on January 8, 1997.

D. CALIFORNIA’S FOIA REQUEST FROM U.S. EPA

On June 13, 2005, the California Attorney General’s office

asked U.S. EPA Region 9 to provide it with “copies of all documents

held in EPA Region 9's records pursuant to part 52.02 as

incorporated by reference that create, clarify, revise or amend the

California Department of Pesticide Regulation’s federally

enforceable SIP obligations.” Defs.’ SUF 12. On July 19, 2005,

the state defendants agreed to convert the request to a Freedom of

Information Act request. Defs.’ SUF 13. On July 25, 205, U.S. EPA

Region 9 responded to the FOIA request by providing copies of the

Pesticide Plan Exhibit A and the 1996 Boyd-Howekamp letter. 

Defs.’ SUF 14.15 

E. 1997 DECISION THAT REGULATIONS WERE NOT NECESSARY

On February 18, 1998, Wells and John Dunlap responded to the

Environmental Defense Center’s Notice of Intent to File Suit Under

Section 304 of the Clean Air Act. ("Chytilo letter"). The response

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16 Dr. Segawa also explained that DPR revises its

calculations of the baseline and each year’s inventory every year

as more information became available. Defs.’ SUF 21. 

17

asserted that the agencies had decided in April 1997 that, based

on an "April 1997 analysis of data through 1995," regulations were

not necessary. The letter explained that “[o]ur April 1997

analysis of data through 1995 showed that all nonatttainment areas

(NAAs) were meeting annual interim goals, and that four out of five

NAAs were already meeting the final 2005 year goals.” Pls.’ SUF

48. A graph of the San Joaquin Valley inventory 1990-1995 (Bates

stamped 0084) in the 1998 workshop package "reflect[s] the data

known to the Department at the time of the analysis referred to in

the Chytilo letter." Pls.’ SUF 49. 

According to Dr. Randall T. Segawa, a Senior Environmental

Research Scientist with DPR, the first estimates of pesticide VOC

emissions for the years 1990 through 1995, published in February

1998, showed that the South Coast, Ventura, Sacramento Metro and

San Joaquin Valley nonattainment areas had achieved the 20%

pesticide VOC emission reductions specified in the SIP element

approved by the U.S. EPA. Defs.’ SUF 19.16 It is undisputed that

DPR did not submit any regulations to the U.S. EPA by June 15,

1997. 

1. 1990 Baseline Calculation

Contained in the record is a memorandum dated February 13,

1997 addressed to Paul Gosselin from Mark Pepple which explained

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17 Gosselin Dep. at 15:12-13. Mark Pepple is a Senior

Research Scientist at DPR. Pepple Dec. at 1:18-20.

18

that there is another option for calculating the 1990 base year.17

Pls.’ SUF 37. The Pepple memo states:

In the SIP, we state that the 1990 figure will be based

on a backcast of 1991 data. It is uncertain when the

ARB will provide the backcast figure. In the meantime,

there is another option (called the PUR option) for

calculating the 1990 baseyear. This option involves

multiplying the emission factor for each pesticide

product by the use of that product. We considered this

option because the agricultural use figures determined

by the ARB Methodology appeared to be low compared to

successive years (which were all based on PUR data) and

the commercial structural use figures seemed to be too

high. 

Pls.’ SUF 39. 

The Pepple Memo mentions “a draft workshop package that

includes an inventory for the years 1990-1995,” with the figure for

the 1990 baseline inventory estimated by CARB “using their current

methodology." Pls.’ SUF 40. The Pepple Memo stated that

“[o]verall, the PUR option increased the 1990 base inventory by

31%” [as compared to the baseline calculated by CARB] and “appear

to confirm our suspicions about the ARB methodology.” Pls.’ SUF

41. The Pepple Memo included inventory graphs with a baseline

calculated from the "PUR option." Pls.’ SUF 42. 

Pepple also attached graphs of the lower baseline calculated

by CARB for comparison. Pls.’ SUF 43. On February 3, 1998, DPR

released a public workshop package to consider pesticide VOC

regulatory options ("1998 workshop package"). Pls.’ SUF 44. The

1998 workshop package states that the 1990 baseline inventory was

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"calculated by multiplying the VOC Emission Factor value for each

product by the use of that product in 1990." Pls.’ SUF 45. The

1998 workshop package also states that: 

Table 1 lists estimate pesticide VOC emissions from

agricultural and commercial structural use pesticides

for the years 1990-1995. The VOC emissions for the 1990

based year in this table were calculated using 1990

Pesticide Use Report data. 

Pls.’ SUF 46. 

Defendants admit that DPR used 1990 Pesticide Use Report data

instead of backcasting 1991 PUR data to calculate the 1990 baseline

inventory. Pls.’ SUF 47. 

2. Revision of Default Emission Potentials

"Beginning in 2001, DPR made a change in its methodology for

calculating VOC emissions that had a significant impact on the

total inventory calculated." Pls.’ SUF 51. DPR staff formally

explained the inventory revision in a 2002 memorandum. Pls.’ SUF

52. DPR revised the "default" values for pesticide products so

that when a pesticide registrant does not provide VOC emission

data, then DPR would assign the median emission potential as a

default instead of the maximum emission potential as the default

value. Pls.’ SUF 53. The default emission potential revision

caused DPR's initial 1990 baseline inventory to be higher than the

1990 baseline inventory after DPR revised the default values.

Pls.’ SUF 54. 

The change affected the inventory for every year, but affected

the 1990 baseline inventory the most. "While the maximum-value

defaults caused upward bias in all years of the inventory, the

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effect is particularly severe for the early inventory years – and

especially the base year 1990 – when the fraction of applied

products with maximum-value defaults EPs was the greatest." Pls.’

SUF 55 (citing Memorandum from Frank Spurlock to Randy Segawa

regarding Analysis of the Historical and Revised Base Year 1990

Volatile Organic Compound Emission Inventories, dated December 16,

2002 at Bates stamp 100374). 

3. Pesticide VOC Emission Inventories for 2000-2003

By using baseline and subsequent emissions inventories

calculated with the methodology used by DPR beginning in 2001 to

calculate the 1990-2000 inventory, defendants (a) admit that 8%,

12%, and 16% reductions from pesticide VOC reductions in 1996,

1999, and 2002, respectively, were not attained in the San Joaquin

Valley, Southeast Desert, and Ventura NAAs; and (b) with respect

to the Sacramento NAA, admit that the 8% and 12% reductions were

not attained in 1996 and 1999 respectively, but assert that by

2002, pesticide VOC emissions had met the 2005 attainment year

target. Pls.’ SUF 56. 

The 2000 Inventory was the first inventory to use the new

default emission potential data. Pls.’ SUF 57. The 2000 inventory

describes the San Joaquin Valley's overall reduction goal as 16.6

million pounds by 2005. Pls.’ SUF 58. After reviewing the 2000

inventory, DPR decided that "no regulatory measures were needed at

this time." Pls.’ SUF 62. The 2001 inventory describes the San

Joaquin Valley's overall reduction goal as 16.6 million pounds by

2005. Pls.’ SUF 63. In 2001, DPR made a major change in the way

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it calculated the 1990 baseline emissions inventory and each year’s

inventory. Defs.’ SUF 22. After DPR changed the way it calculated

pesticide VOC emissions in 2001, the inventories showed that the

Ventura and Southeast Desert nonattainment areas were not meeting

their attainment year goals and the San Joaquin Valley

nonattainment area was not meeting its 1999 attainment year goal.

Defs.’ SUF 23. After reviewing the 2001 inventory, DPR decided

that "we did not need to put regulations in place." Pls.’ SUF 66.

Plaintiffs filed this citizen suit on May 4, 2004. Pls.’ SUF 67.

The 2002 inventory, dated May 17, 2004, states that the San

Joaquin Valley has a 12% reduction goal by 1999, the Valley's

attainment year when EPA approved the SIP, while the other four

nonattainment areas have a 20% reduction goal in their respective

attainment years (either 2005, 2007, or 2010). Pls.’ SUF 68. The

2002 inventory shows that the San Joaquin Valley Nonattainment Area

increased VOC emissions by 34% over the 2001 level to approximately

the 1990 baseline, while the Southeast Desert Nonattainment Area

posted emissions at approximately the same level as the 1990

baseline. Pls.’ SUF 69. The 2002 inventory shows that the San

Joaquin Valley Nonattainment Area increased VOC emissions by 34%

over the 2001 level to approximately the 1990 baseline, while the

Southeast Desert Nonattainment Area posted emissions at

approximately the same level as the 1990 baseline. Pls.’ SUF 70.

The 2003 inventory – the most recent dated April 5, 2005 –

states that the San Joaquin Valley has a 12% reduction goal by

1999, the Valley's attainment year when EPA approved the SIP, while

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18 Dr. Segawa explains the reformulation option during his

deposition as follows:

Q. Did you participate in decisions whether or not to

adopt regulations based on the data in this document,

Exhibit 15?

A. Yes.

Q. Can you describe those decisions?

A. We decided to pursue another reevaluation in place of

regulations. 

 Q. What is the reevaluation?

A. In this case I’m referring to a reevaluation to

request pesticide registrants reformulate a number of

different products to lower the VOC content.

Q. What other options were discussed?

A. As I recall, we also discussed the possibility of

reducing emissions from fumigants.

Q. What possibilities were those?

A. To adopt changes in applications methods, limit – or

limit the amount of fumigants that could be used.

Q. Has a decision regarding those possibilities been

made?

A. Yes.

Q. What is that decision?

A. We decided – at that time we decided not to pursue

regulatory measures for fumigants.

Q. Who is “we”?

A. Paul Gosselin and Mary-Ann Warmerdam made that

decision. 

Pls.’ SUF 75. 

22

the other four nonattainment areas have a 20% reduction goal in

their respective attainment years (either 2005, 2007, or 2010). 

Pls.’ SUF 72. The 2003 inventory shows that the San Joaquin

Valley, Southeast Desert, and Ventura all exceed the 1990 baseline,

while the Sacramento and South Coast nonattainment areas appeared

to meet the reduction goals. Pls.’ SUF 73. DPR at some point

started to pursue the option of reformulation of non-fumigant

products to reduce VOC content.18 Pls.’ SUF 74. 

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The 2003 inventory shows that the Ventura Nonattainment Area

had VOC levels nearly double the 1990 baseline, approximately 93%

of which are from fumigants. Pls.’ SUF 76. The 2003 inventory

shows that the San Joaquin Valley and Southeast Desert

nonattainment areas' VOC levels exceeded the 1990 baseline. Pls.’

SUF 77. 

The exhaustively detailed exposition noted above was necessary

to explain the unexpected result adverted to earlier. I turn first

to disposition of the second cause of action since, despite the

order of plaintiffs’ complaint, its disposition is necessary to

resolve the first claim.

 III.

 ANALYSIS

Plaintiffs bring suit to enforce two asserted commitments

contained in the Pesticide Element of the 1994 Ozone SIP. The

first cause of action alleges a commitment to adopt regulations as

necessary to ensure that the Pesticide Element would meet the 20%

reduction by 2005 goal, as well as interim reduction goals in 1996,

1999, and 2002. The second cause of action asserts a commitment

to calculate the 1990 baseline inventory of pesticide VOC

emissions.

As explained below, the court must grant plaintiffs’ motion

for summary judgment as to the first cause of action and grant

summary judgment to defendants as to the second cause of action.

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19 As defendants explain, “[a]ny plan to reduce VOC emissions

must establish a ‘baseline’ against which VOC emission reductions

can be measured.” Defs.’ Mot. at 31. 

20 The record reflects that beginning in 1997, DPR began to

rethink how it should calculate the baseline, both in an internal

memorandum and in material produced for a DPR workshop. Pls.’ SUF

37. 

24

A. PLAINTIFFS’ SECOND CLAIM: ALLEGED VIOLATION OF THE SIP BY

IMPROPERLY CALCULATING THE 1990 BASELINE INVENTORY 

Plaintiffs argue that defendants have violated the SIP by

improperly calculating the 1990 baseline inventory.19 They argue

that the SIP requires CARB and DPR to use 1991 Pesticide Use Report

data (PUR) to calculate the 1990 baseline inventory. Defendants,

on the other hand, argue that they have not violated the SIP,

and in any event, a baseline inventory does not constitute an

enforceable control strategy under the CAA.

It is undisputed that DPR used 1990 Pesticide Use Report data

instead of backcasting 1991 PUR data to calculate the 1990 baseline

inventory. Pls.' SUF 47.20 One of the many questions is whether

this use violates an enforceable commitment.

1. SIP Language

 A “regulation should be construed to give effect to the

natural and plain meaning of its words,” Bayview Hunters Point

Community Advocates, 366 F.3d at 695. While, as I have pointed out

in the earlier order, it is sometimes difficult to know what is in

the regulation, much less identify its plain words, the instant

issue does not pose that problem. The Pesticide Element provides

that:

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In cooperation with DPR, the California Air Resources

Board (ARB) will develop a baseline inventory of

estimated 1990 pesticidal VOC emissions based on 1991

pesticide use data, adjusted to represent the 1990 base

year, and on the VOC emission potential data.

Pls.’ SUF 19 (citing SIP at 4). 

It also states that “[t]his baseline inventory may be adjusted

if empirical data are developed to determine the impact of

temperature, treated substrate (foliate, soil, water, etc.),

application technique, and other conditions on VOC emissions.”

Pls.’ SUF 19-20. 

Elsewhere, the SIP explains:

"[t]he base year inventory will be created from the 1991

Pesticide Use Report and then adjusted by a factor to

represent the 1990 base year." The Pesticide element also

explained that "[f]ull pesticide use reporting began in 1990"

and that "[i]t is believed that the 1991 pesticide use report

would be a more accurate source to determine the 1990

pesticidal VOC emissions." 

Pls.' SUF 20. 

In sum, the SIP commits defendants’ use of a baseline

inventory of estimated 1990 pesticidal VOC emissions based on 1991

pesticide use data. The SIP utilizes mandatory language, ARB “will

develop a baseline inventory of estimated 1990 pesticide VOC

emissions based on 1991 pesticide use data, adjusted to represent

the 1990 base year, and on the VOC emission potential data”; "[t]he

base year inventory will be created from the 1991 Pesticide Use

Report [“PUR”] and then adjusted by a factor to represent the 1990

base year" (emphasis supplied).

The SIP also provides, however, that “[t]his baseline

inventory may be adjusted if empirical data are developed to

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determine the impact of temperature, treated substrate (foliate,

soil, water, etc.), application technique, and other conditions on

VOC emissions.” Pls.’ SUF 19-20. Thus, the SIP leaves room for

modification or “adjust[ment]” of the baseline inventory if it is

impacted by specified conditions. 

Defendants explain that when the SIP was written, it was

assumed that the “1991 PUR would provide a more accurate basis to

establish the 1990 emissions because staff anticipated that there

would be low compliance in 1990.” Defs.’ Mot. at 32. Defendants

elaborate that they expected 1991 would allow for more “complete

reporting of PUR data.” Later, though, “staff reviewed the data”

and “determined that the 1990 reporting was comparable to the

reporting in 1991 and subsequent years,” and was “not underreported

compared to the 1991 data.” Id. at 33. 

Although the SIP allows for adjustments which may affect VOC

emissions, it does not allow for adjustments relating to accuracy.

Of course, that does not mean that a determination that a more

accurate means of establishing the baseline must be ignored. If

the state defendants concluded that the 1990 PUR data was more

accurate, they could have submitted a revision to U.S. EPA for

approval. They had no right, however, to unilaterally decide to

use the 1990 data. It is established that a SIP, "once adopted by

a state and approved by the EPA, becomes controlling and must be

carried out by the state." See Bayview Hunters Point Community

Advocates, 366 F.3d at 692. 

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21 The initial inventory in 1990, and all subsequent

inventories are generated by multiplying the amount of pesticides

used by the VOC content of those pesticides. Pls.’ SUF 19. 

22 Mary Ann Warmerdam is the current director of the DPR and

replaced Helliker during the course of this litigation. 

27

Below I conclude, however, that despite the fact that the

State could not unilaterally alter the means of establishing the

baseline, plaintiffs’ second claim fails because a “baseline

inventory” is not an “emission standard or limitation” subject to

challenge under the Clean Air Act. 

2. Section 304 of the Clean Air Act and “Emission Standard

or Limitation” Requirement

Plaintiffs contend that the baseline inventory is a key

element of the pesticide element’s strategy, and that “manipulation

of the starting point skews the relative percentage comparison with

subsequent years’ inventories.”21 Pls.’ Mot. at 11. They insist

that the calculation of the 1990 baseline inventory qualifies as

“an emission standard or limitation that Warmerdam22 has violated.”

Pls.’ Opp’n at 17. Plaintiffs, however, face a significant barrier

to their claim. The CAA’s creation of a private cause of action

to enforce the Act is not all encompassing. Plaintiffs must limit

their suit to those actions permitted under the Act. As I now

explain, it appears to the court that the second claim is not so

authorized.

Under section 304(a)(1) of the Act, plaintiffs may enforce an

“emission standard” or “limitations” of a SIP. The Act defines

"emission standard or limitation" as "a schedule or timetable of

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23 In Citizens for a Better Environment, at issue were

“twenty-three [stationary source] measures,” which would “be

implemented as new regulations by the BAAQMD” to reduce emissions.

731 F.Supp. at 1455. In Bayview, it was Transportation Control

Measures (“TCM”) designed to reduce air pollutants by increasing

public transit. 366 F.3d at 694.

28

compliance, emission limitation, standard of performance or

emission standard." 42 U.S.C. § 7604 (f)(1)-(4). Elsewhere, the

CAA defines the terms "emission limitation" and "emission standard"

to mean:

a requirement established by the State or the

Administrator which limits the quantity, rate, or

concentration of emissions of air pollutants on a

continuous basis, including any requirement relating to

the operation or maintenance of a source to assure

continuous emission reduction, and any design,

equipment, work practice or operational standard

promulgated under this chapter. 

42 U.S.C. § 7602(k).

Plaintiffs rely on the well-established principle that because

the Clean Air Act is a remedial statute, the court should interpret

the Act broadly to effectuate its purpose. Bayview Hunters Point

Community Advocates, 366 F.3d at 692; Citizen for a Better

Environment v. Deukmejian, 731 F.Supp. 1448, 1454 (N.D. Cal.

1990)). The problem with plaintiffs’ argument lies not with the

principle they rely on. The problem is they confound construction

and rewriting. 

Neither Citizens for a Better Environment nor Bayview Hunters

Point support plaintiffs’ attempt to rewrite the statute. In both

cases, the measures at issue were designed to reduce emissions.23

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The case at bar, unlike the two cases relied on by plaintiffs,

involves a baseline inventory which, as defendants note, is not a

schedule or timetable of compliance, emission limitation, or

standard as defined by the statute. Indeed, the baseline does not

“limit[] the quantity, rate, or concentration of emissions of air

pollutants on a continuous basis” and does not “relat[e] to the

operation or maintenance of a source to assure continuous emission

reduction.” By its own terms, the baseline identifies emission

sources and then quantifies the amount of emissions attributed to

those sources. As defendants argue, once the sources of air

pollution are identified, control strategies can then be formulated

to control emissions entering the air from those sources. From all

the above, I must conclude that the baseline is not an emission

“standard” or “limitation” within the meaning of 42 U.S.C. § 7604

(f)(1)-(4). 

The court’s conclusion above, while compelled by the language

of the statute and the function of a baseline, is nonetheless

troubling. Plaintiffs make a compelling argument that

"manipulation of the starting point skews the relative percentage

comparison with subsequent years' inventories.” Pls.' Mot. at 11.

Thus, if defendants are able to arbitrarily alter the baseline they

can "skew" the numbers in order to meet the NAAQS in subsequent

years, defeating the purpose of the Clean Air Act’s mandate to

reduce emissions and improve air quality.

Although plaintiffs urge that the citizen suit provision

contemplates a broader reading of what can be defined as an

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emissions “limitation” or “standard,” and such a reading makes

sense, it is unfortunately not supported by the statute. 

Plaintiffs’ motion for summary judgment as to the second cause of

action must be DENIED.

C. PLAINTIFFS’ FIRST CLAIM - FAILURE TO ADOPT REGULATIONS IN

VIOLATION OF THE SIP

Plaintiffs assert that defendants violated the SIP by failing

to adopt regulations necessary to ensure interim and final

reduction goals. Pls.’ Mot. at 15. They contend that the

obligation to adopt regulations became an enforceable SIP strategy

upon EPA approval of the Pesticide Element, as clarified by a May

9, 1995 memorandum submitted to EPA and included in the SIP. Id.

 Defendants argue that the May 9, 1995 Memorandum cannot be

the source of a federally-enforceable SIP strategy because it was

not incorporated by reference into the Code of Federal Regulations.

Defs.’ Mot. at 19. Alternatively, defendants argue that even if

the Wells Memo had been approved as part of the SIP, the commitment

to adopt regulations was a one-time obligation permitting the state

to make a discretionary determination of necessity. They maintain

that obligation was discharged when a decision was made not to

adopt regulations. Defs.’ Mot. at 22. As the court explains

below, plaintiffs’ motion for summary judgment as to the first

cause of action must be granted because defendants failed to

utilize 1991 PUR data to calculate the baseline.

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1. Was there a Commitment in the SIP to Adopt Regulations?

“An obligation cannot be imposed based upon a SIP if that

obligation was not actually undertaken in the SIP.” Bayview

Hunters Point, 366 F.3d at 698.

Plaintiffs contend here, as they did in the motion for

judgment on the pleadings, that the State’s commitment or

“enforceable control measure,” which is to adopt regulations,

derives from the May 1995 clarification letter signed by DPR

Director James Wells which CARB director, James Boyd, forwarded to

the EPA. To repeat, the clarification letter reads, in pertinent

part:

The Department of Pesticide Regulation commits to adopt

and submit to U.S. EPA by June 15, 1997, any regulations

necessary to reduce volatile organic compound emissions

from agricultural and commercial structural pesticides

by specific percentages of the 1990 base year emissions,

by specific years, and in specific nonattainment areas

(described in 40 C.F.R. 81.305), as listed in the

following table:

Reductions from 1990 Baseline

Ozone Nonattainment Area 1996 1999 2002 2005

Sacramento Metro 8% 12% 16% 20%

San Joaquin Valley 8% 12% 16% 20%

South Coast 8% 12% 16% 20%

Southeast Desert 8% 12% 16% 20%

Ventura 8% 12% 16% 20%

Pls.’ SUF ¶ 32, Ex. 4 to Newell Dec. at 017-018. 

The clarification letter further states that “[t]he Department of

Pesticide Regulation commits to adopt and submit to U.S. EPA by

June 15, 1997, any regulations necessary to reduce volatile organic

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24 See, e.g., 40 C.F.R. Pt. 52.200 (2004) (letter of

clarification was submitted by the Arkansas governor regarding

Arkansas’ pollution control); 40 C.F.R. Pt. 52.780 (2004) (Attorney

General of the State of Indiana sent a letter to U.S. EPA

clarifying Indiana’s interpretation of the definition of “federally

enforceable” under the Act.). 

32

compound emissions . . . .” 

As the court noted in its previous order, SIPs are composed

of a compilation of numerous documents, including new and

previously submitted plans, district rules, state regulations, and

federal controls. See Order at 14, n. 12. The court also noted

that it is apparently not unusual for a revision or letter of

clarification to be written by an agency official and forwarded to

EPA to be come part of the SIP. These letters often clarify the

agencies’ intent with regard to SIPs. Id.

24 It is this method of

proceeding which is a major source of the confusion in the matter

at bar.

The issue would be vastly simpler if the parties agreed that

this clarification letter was or was not part of the SIP. 

Defendants, however, maintain here, as they did in connection with

the motion for judgment on the pleadings, that, contrary to the

plaintiffs’ contention, the Wells memorandum was not incorporated

by reference into the Code of Federal Regulations.

As I noted in disposition of the previous motion, neither the

statute, the regulatory process, nor the record provide a clear

resolution of the problem. On the one hand, the language contained

in the final rule is similar to that in the CARB clarification

letter. It states:

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25 The final regulation lists the following revisions as

being submitted to the SIP: November 14, 1994, November 15, 1994,

December 28, 1994, December 29, 1994, February 7, 1995, March 30,

1995, January 22, 1996, April 4, 1996, May 17, 1996, June 13, 1996,

July 10, 1996, and July 12, 1996. See 62 Fed. Reg. 1150. The

regulation does not list the May 1995 date, the date of the Wells

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As described in the SIP, California has committed to

adopt and submit to U.S. EPA by June 15, 1997 any

regulations necessary to reduce VOC emissions from

agricultural and commercial structural pesticides by 20

percent of the 1990 base year emissions in the

attainment years for Sacramento, Ventura, Southeast

Desert, and the South Coast, and by 12 percent in 1999

for San Joaquin Valley. 

62 Fed. Reg. 1150, 1170. 

It would seem that, based on this language, the court could

conclude that California committed to submit regulations if 20

percent of the 1990 base year emissions for the above-mentioned

basins were not met.

As the court discussed in the previous order, however, the

final rule does not set out the relevant table titled “Reductions

from 1990 Baseline” which was contained in the May 1995 memo and

subsequently published in the proposed regulations. This deletion

may signal the commitment was not included in the final rule.

The defendants also direct the court to the preamble of the

final regulations, which they argue may serve “as a source of

evidence concerning contemporaneous agency intent,” citing Entergy

Services, Inc. v. F.E.R.C., 375 F.3d 1204, 1209 (D.C. Cir. 2004).

In the preamble, the EPA, while mentioning that it was approving

other revisions to the California SIP, did not mention the May 1995

memorandum at issue.25 Again, this is a possible signal that the

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memorandum. 

Defendants also explain that, based on the FOIA response noted

above they received from defendants, they have shown that the

memorandum was not part of the SIP. 

26 That the court is, in essence, being urged to read tea

leaves, strongly suggests that there is something profoundly wrong

with the process. 

27 The court notes that the CAA is governed by the judicial

review provisions of the Administrative Procedure Act. 5 U.S.C.

§§ 701-706. Public Citizen v. Dept. of Transp., 316 F.3d 1002,

1021 (9th Cir. 2003). Although an argument could be made

that the issue must be resolved on the basis of the administrative

record, a number of reasons support consideration of the

declaration. First, defendants have not objected to its receipt,

and thus it is in evidence. Second, as the court has repeatedly

noted, the administrative record is ambiguous, and limiting

consideration to the record frustrates the ability to resolve the

issue. Third, an exception to the rule exists where resort to

extrinsic material is required to “determine whether the agency has

considered all relevant factors and has explained its decision,”

or when it is “necessary to explain technical terms or complex

subject matter.” Southwest Center for Biological Diversity v.

United States Forest Svc., 100 F.3d 1443, 1450 (9th Cir. 1996).

34

commitment was not included in the final rule.26

In the disposition of the motion for judgment on the

pleadings, the court relied on the presumption of administrative

regularity to conclude the commitment had been made, since such a

commitment appeared to the court to be necessary for the EPA to

approve the SIP. Plaintiffs have now provided persuasive evidence

that the court’s disposition accorded with the understanding of the

EPA administrator tasked with approval of the California SIP.27

Plaintiffs tender the declaration of David Howekamp, who

served as the Director of the Air Division at EPA Region 9 during

the period in question. The declaration appears dispositive. It

confirms, inter alia, that EPA understood that California had made

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28 An assertion by defendants that they did not intend to so

commit would be unavailing. Defendants’ unexpressed intentions are

irrelevant. Moreover, once the SIP is approved by the EPA, it

becomes federal law, and this court need only look to see whether

state defendants complied with the governing law. As I explained

in disposing of the motion for judgment on the pleadings, a

commitment was necessary to comply with the CAA. Indeed, as the

Howekamp declaration demonstrates, that was also EPA’s

understanding and the SIP would not have been approved without such

a commitment. 

35

the commitment to submit and adopt regulations if CARB and DPR

found it necessary for the meeting of attainment dates.28 

According to his declaration, the letter Howekamp sent to DPR

Director Wells requested various “technical clarifications” on

several issues, including the deadline to adopt necessary

regulations. Pls.’ SUF 24. Howekamp explained that even after

Wells’ response to his letter, he could not approve the pesticide

component because it was inconsistent with the Clean Air Act.

Pls.’ SUF 26. Thereafter, in a letter to DPR dated April 21, 1995,

Howekamp identified “approvability issues,” and reiterated that the

State must modify the SIP to be explicit about the dates of rule

adoption and the emission reduction goals. According to Howekamp,

the modification was requested because the pesticides measure in

the SIP “did not contain an adequate enforceable commitment to

adopt and submit regulations by no later than June 15, 1997.” 

Pls.’ SUF 29 (citing Howekamp Dec. at 14). 

By virtue of the declaration, it is apparent that it was

Howekamp’s interactions with the state agencies which prompted DPR

to write to CARB clarifying its commitment, which in turn CARB

submitted to EPA in the May 11, 1995 cover letter. It is 

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significant that it was Howekamp’s position that the final rule

made no change to the clarification in the May 1995 memorandum,

regardless of the final rule’s omission of the table. Pls.’ SUF

36. In sum, Howekamp’s account of the rulemaking process

demonstrates that the May 1995 memorandum was “an essential

component of SIP approval.” Mot. at 22. 

Thus, despite the uncertainties noted above, based on the

Howekamp declaration and the language contained in the final

regulations under the “emissions reduction” section,29 the court

concludes that EPA approved and promulgated the strategy to

implement the regulations committed to by DPR in the 1995

memorandum and submitted by CARB.

2. The Scope of the Commitment to Implement Regulations

Having held that the Wells memo contained a commitment, which

was incorporated into the final SIP, the court must now decide

exactly what that commitment was. The language contained in the

Wells memorandum explains:

As described in the SIP, California has committed to

adopt and submit to U.S. EPA by June 15, 1997 any

regulations necessary to reduce VOC emissions from

agricultural and commercial structural pesticides by 20

percent of the 1990 base year emissions in the

attainment years for Sacramento, Ventura, Southeast

Desert, and the South Coast, and by 12 percent in 1999

for San Joaquin Valley. 

62 Fed. Reg. 1150, 1170. 

////

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30 Again, the pertinent language is “California has committed

to adopt and submit to U.S. EPA by June 15, 1997, any regulations

necessary to reduce VOC emissions . . . by 20 percent . . . in the

attainment years . . . .” 

37

Plaintiffs contend that defendants have violated the SIP and

continue to violate the SIP by “failing to adopt regulations by

June 15, 1997, and subsequent to June 15, 1997.” That is,

plaintiffs contend that any failure to meet interim goals would

require defendants to adopt regulations and that defendants’

obligation was ongoing and mandatory. They cite various reports

on emissions from years subsequent to June 1997 to support their

contention that the State did not have discretion in determining

whether regulations would be adopted. I cannot agree. 

The language of the 1995 Wells Memo is relatively clear that

defendants contemplated a one-time obligation.30 As defendants 

argue, the Wells memorandum could have stated that regulations must

be adopted when and if the interim targets are missed or that the

commitment was ongoing. Instead, the regulation identifies only

a single deadline for adopting such regulations. Reading the

language of the regulation as plaintiffs suggest - so that the

commitment is ongoing – would strain the plain meaning. Clearly,

the preposition “by” is used to mean “not later than.” In this

regard, the pre-revision language of the SIP is of some help. The

language from the SIP proposed by DPR provided:

A decision whether additional regulatory measures to

ensure that reductions in pesticidal VOC emissions are

achieved will be made by 1997. The determination that

additional regulatory measures will be made if it is

found that the existing program elements are not

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31 It seems evident that it was the 1998 date which, inter

alia, required Howekamp’s disapproval of the proposed SIP. 

32 Apparently, these two sections have to do with deadlines

that Howekamp as an administrator was facing under the Clean Air

Act. Section 110(k)(2) states that within twelve months of

determination by the Administrator that a state has submitted a

plan, the administrator has to act on the submission. Section

110(k)(4) has to do with conditional approval. It states that the

Administrator may approve a plan revision based on a commitment of

the State to adopt specific enforceable measures, but not later

than one year after the date of the approval of the plan revision.

Thus, when the State wanted to move the obligation date to 1998,

Howekamp was obligated to have them move the date up to 1997 so he

could comply with his own timeline under the statute. 

38

sufficient in achieving established VOC reductions and

that additional VOC reductions from the use of

pesticides are feasible.

SIP at 10.

Elsewhere, the SIP contains a “summary of the plan,” which is

essentially a timeline. The timeline indicated that by December

1998 “[i]mplementation of additional regulatory measures, if

necessary will take place to ensure that targeted pesticidal VOC

reductions will occur.”31 SIP at 10-11.

Defendants also point out that in April 1995, when Dr.

Howekamp wrote to DPR requesting further information about the

obligation to adopt regulations, he noted that “[i]n order to be

consistent with Sections 110(k)(2) and 110(k)(4) of the CAA, such

commitments should not extend beyond June 1997.”32 Indeed, as

defendants contend, it appears from this correspondence that “[t]he

commitment to adopt regulations, if necessary,” was in essence a

commitment to submit another SIP revision and promulgate new

regulations not later than June 15, 1997, if CARB and DPR 

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33 Like everything else in the rule making process, this

correspondence is not free of ambiguity. On the one hand, Howekamp

writes in the April 21, 1995 letter to Wells that “[t]he primary

issue [he was concerned with] is the date by which California has

committed to adopt and submit regulations should they be needed to

reduce VOC emissions.” This conditional language supports

defendants’ reading that their obligation was only one-time and

that obligation only required defendants to make an assessment in

1997 whether regulations were necessary to meet reductions by the

attainment dates. On the other hand, the Howekamp letters also

suggest that EPA understood that the obligation to adopt 

regulations was not discretionary. See, e.g., Letter of March 20,

1995 to Mr. Wells (“We understand that California has committed to

limiting VOC emissions from pesticides to specific percentages of

the 1990 base year emissions by specific years in specific

nonattainment areas . . . regardless of future growth in emissions

that might otherwise occur.”). 

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determined they were needed.33 The court concludes that based on

the record before it, the SIP called for a commitment on the part

of DPR and CARB to look at the emissions data before it and to

promulgate regulations it thought would allow it to meet attainment

dates. 

3. Did Defendants Fulfill the One-Time Obligation to Adopt

Regulations if necessary by June 15, 1997? And does this

Comply with the mandate of the Clean Air Act?

I concluded above that defendants committed to make an

assessment as to emissions and to pass regulations before June 15,

1997 if they thought it was necessary to meet the NAAQS for future

years. 

It is undisputed that DPR did not submit any regulations to

the U.S. EPA by June 15, 1997. There is some evidence that

defendants did indeed consider whether regulations were necessary

prior to the June 15, 1997 deadline, and decided that regulations

were not necessary. A letter from Wells and John Dunlap of DPR to

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34 The letter was in response to Mr. Chytilo’s Notice of

Intent to File Suit under the Clean Air Act. 

35 It is somewhat disconcerting that the defendants have

failed to provide any documentation that an analysis had in fact

been undertaken and a decision actually reached prior to the letter

to Mr. Chytilo, or at any time for that matter. 

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Marc Chytilo of the Environmental Defense Center (“Chytilo letter”)

explained that “[o]ur April 1997 analysis of data through 1995

showed that all nonattainment areas (NAAs) were meeting annual

interim goals, and that four out of five NAAs were already meeting

the final 2005 year goals.” Pls.’ SUF 48.34 Defendants also

submitted a graph of the inventory for 1990-1995 which “reflect[s]

the data known to the Department at the time of the analysis

referred to in the Chytilo letter.” Pls.’ SUF 49.35

As I now explain, however, even assuming that an analysis

was undertaken and a decision reached, plaintiffs’ motion must

be granted because, under defendants’ contention, the decision

could be based on wishful thinking rather than an accurate

forecast of future emission trends.

Defendants contend that they complied with the CAA by merely

committing to pass regulations before June 15, 1997 only if they

thought that regulations were necessary to meet the NAAQS for

future years. If the court adopted that contention, it would be

required to conclude that the EPA had violated its duty in

accepting the Pesticide Element of the SIP. Under the statute,

EPA must ensure that SIPs contain “enforceable emission

limitations, and such other control measures, means or techniques

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. . . as may be necessary or appropriate to meet the applicable

requirements of [the Act].” 42 U.S.C. § 7502(6).

Moreover, the statute requires that a SIP for nonattainment areas

include enforceable emission limitations and control measures “as

may be necessary or appropriate to provide for attainment of the

NAAQS by the applicable attainment date.” Id. at § 7506(4).

Thus, for a SIP to be valid, enforceable standards rather than

a discretionary decision must be included. In the absence of a

state commitment to promulgate regulations based upon meaningful

data, rather than an option to pass regulations, the statutory

requirements would not be met. 

The court, however, need not hold that the SIP is invalid.

Even if there was a formal decision premised upon an evaluation

of the data demonstrating no objective need for regulations, the

process utilized to reach that decision would clearly not be in

compliance with the SIP. 

It is undisputed that defendants were utilizing 1990 PUR

data in 1997 when they wrote the letter to Mr. Chytilo explaining

why they believed regulations were unnecessary. This violated

the SIP which required the use of 1991 PUR data and backcasting

to 1990. Defendants maintain that they used the 1990 PUR data

because they believed the 1990 data was more accurate than they

had previously expected it to be. Defendants argue that it would

be "sheer absurdity" to "preclud[e] the use of best data

available in [implementing the Clean Air Act]." Defs.' Mot. at

36.

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Of course, using the best data makes sense. Defendants’

problem is that the SIP did not permit use of 1990 data. If, in

fact, defendants concluded that the 1991 PUR data was not the

best data to use, they could have, and more importantly, should

have, submitted a revision to the SIP. As plaintiffs argue,

defendants failed to avail themselves of the opportunity to amend

the SIP to allow for a change in the baseline calculation

commitment. As I noted above, a "SIP once adopted by a state

becomes controlling and must be carried out by the state."

Bayview Hunters Point, 366 F.3d at 695. Defendants simply are

not permitted to violate federal law, whether they had a better

thought or not. Under the CAA, California may submit a revision

to change the baseline calculation if it will not interfere with

any applicable requirement concerning attainment and reasonable

further progress. 42 U.S.C. §§ 7410(a), 7410(l). Where they

have failed to do so, states are "relegated to a lone option:

compliance," Friends of the Earth, 535 F.2d at 178. Because DPR

did not exercise the procedural option to revise the SIP, it had

to comply with the SIP and utilize the 1991 PUR.

Defendants failed to carry out the commitment as promulgated

in the regulations. Accordingly, the court must grant summary

judgment for plaintiffs as to the first cause of action. 

For the foregoing reasons the court hereby ORDERS that:

1. Defendants’ motion for summary judgment as to

plaintiffs’ second cause of action is GRANTED;

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2. Plaintiffs’ motion for summary judgment as to

plaintiffs’ first cause of action is GRANTED; 

3. In all other respects, the motions are DENIED; and

4. The parties are directed to file cross-motions as to

remedies not later than twenty (20) days from the date of this

order. The court will then either take the matter of remedies

under submission or set the matter for oral argument.

IT IS SO ORDERED. 

DATED: February 21, 2006.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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