Case No. 11-71127

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

CALIFORNIA COMMUNITES AGAINST TOXICS, et al.

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.

Respondents

and

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT

and CPV Sentinel LLC

Respondents-Intervenors.

On Petition for Review 

of a Final Action of the U.S. Environmental Protection Agency

BRIEF OF RESPONDENT-INTERVENOR 

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT

Kurt R. Wiese, General Counsel (SBN 127251)

Barbara Baird, District Counsel (SBN 81507)

Lauren B. Nevitt, Deputy District Counsel (SBN 260297)

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT

21865 Copley Drive, Diamond Bar, CA 91765

Telephone: (909) 396-3458

Facsimile: (909) 396-2961

bbaird@aqmd.gov

lnevitt@aqmd.gov 

Attorneys for Respondent-Intervenor, 

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT

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CORPORATE DISCLOSURE STATEMENT UNDER RULE 26.1

Respondent-Intervenor South Coast Air Quality Management District is a political 

subdivision of the State of California and does not issue stock and is not a subsidiary or 

affiliate of any publicly owned corporation.

January 27, 2012 South Coast Air Quality Management District

s/ Lauren B. Nevitt

Lauren B. Nevitt, Deputy District Counsel

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TABLE OF CONTENTS

 INTRODUCTION ........................................................................................ 1

 STATEMENT OF ISSUES .......................................................................... 1

 STATEMENT OF FACTS ........................................................................... 1

I. The District Plans for the Attainment of Air Quality 

Standards ........................................................................................... 1

II. Procedural History of the Sentinel Project ........................................ 4

 ARGUMENT ................................................................................................ 7

I. Petitioners Had Actual Notice of the Documentation 

EPA Relied Upon and Therefore May Not Claim 

Procedural Error................................................................................. 7

A. Petitioners Examined the Documents in the CEC 

Licensing Proceeding .............................................................. 8

B. The Rulemaking Record Demonstrates that 

Petitioners Had Actual Notice that EPA Was 

Relying on the Same Supporting Documentation 

Litigated in the CEC Proceeding .......................................... 10

II. The Record Supports EPA’s Determination that the AB 

1318 Tracking System Contains a Sufficient Number of 

Offsets .............................................................................................. 12

A. Alleged Violations of the “Surplus” Requirement 

Do Not Impact EPA’s Determination that 

Sufficient Offsets are Available for the Sentinel 

Project ................................................................................... 14

B. Alleged Violations of the “Quantifiable” 

Requirement Have No Bearing on EPA’s 

Determination that Sufficient Offsets Are 

Available for the Sentinel Project ......................................... 19

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i. EPA Appropriately Relied on Emissions Data 

from Either the Previous One or Two Year 

Period for Each Source of Offsets ................................ 20

ii. Alleged Inaccuracies in the Documentation 

for a Single Facility is Not Emblematic of the 

Tracking System as a Whole and Does Not 

Affect EPA’s Ultimate Determination .......................... 23

C. The District’s Internal Accounts Have a Positive 

Balance and, Therefore, the Transfer of Offsets to 

the AB 1318 Tracking System Was Proper .......................... 24

D. Alleged Violations of the “Creditable” 

Requirement Must Fail Because the Offsets in the 

AB 1318 Tracking System Are Explicitly Included 

in the AQMP.......................................................................... 28

i. Petitioners’ Argument is Based on the Wrong 

AQMP ........................................................................... 28

ii. This Court Should Not Consider Petitioners’ 

Arguments Based on Specific Tables and 

Sentences in the 2007 AQMP and Alleged for 

the First Time in Their Opening Brief .......................... 31

iii. Even if Considered, Petitioners’ Arguments 

Regarding the 2007 AQMP Must Fail 

Because They Misinterpret the Document .................... 33

iv. This Court Should Affirm EPA’s Decision 

Rather than Remanding it Without Vacature ................ 37

CONCLUSION ......................................................................................... 39

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TABLE OF AUTHORITIES

Federal Cases

Alaska Dep’t of Envtl. Conservation v. EPA, 

540 U.S. 461, 124 S. Ct. 983 (2004) ............................................................13

Appalachian Power Co. v. EPA, 

251 F.3d 1026 (D.C. Cir. 2001) ....................................................................31

Cal. Wilderness Coal. v. U.S. Dept. of Energy, 

631 F.3d 1072 (9th Cir. 2011) ..............................................13, 14, 15, 19, 24

Catawba County v. EPA, 

571 F.3d 20 (D.C. Cir. 2009) .......................................................................12

Chae-Sik Lee v. Kennedy, 

294 F.2d 231 (D.C. Cir. 1961) ................................................................29, 30

Latino Issues Forum v. EPA, 

558 F.3d 936 (9th Cir. 2009).........................................................................12

Motor & Equip. Mfrs. Ass’n. v. Nichols, 

142 F.3d 449 (D.C. Cir. 1998) ................................................................32, 33

Nat’l Petrochem. & Refiners Ass’n v. EPA, 

287 F.3d 1130 (D.C. Cir. 2002) ......................................................................7

Nat’l Res. Def. Council v. South Coast Air Quality Mgmt Dist., 

694 F. Supp. 2d 1092 (C.D. Cal. 2010)...........................................................4

Nat’l Res. Def. Council v. South Coast Air Quality Mgmt Dist., 

651 F.3d 1066 (9th Cir. 2011).........................................................................4

Ry. Labor Execs.’ Ass’n v. Interstate Commerce Comm., 

784 F.2d 959 (9th Cir. 1986).........................................................................30

Sagebrush Rebellion, Inc. v. Hodel, 

790 F.2d 760 (9th Cir. 1986) ........................................................................13

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Shea v. Director, Office of Workers’ Comp. Programs, 

929 F.2d 736 (D.C. Cir. 1991) ......................................................................29

Shinseki v. Sanders, 

556 U.S. 396, 129 S. Ct. 1696 (2009).....................................................13, 23

Sierra Club v. EPA, 

346 F.3d 955 (9th Cir. 2003).........................................................................12

Silverton Snowmobile Club v. U.S. Forest Serv., 

433 F.3d 772 (10th Cir. 2006).......................................................................31

SKF USA Inc. v. United States, 

254 F.3d. 1022 (Fed. Cir. 2001)....................................................................37

Small Refiner Lead Phase-Down Task Force v. EPA, 

705 F.2d 506 (D.C. Cir. 1983) ........................................................................7

Union Oil Co. of Cal. & Beacon Oil Co. v. EPA, 

821 F.2d 678 (D.C. Cir. 1987) ........................................................................7

Federal Statutes

5 U.S.C. § 706(2)(a) ......................................................................................12

42 U.S.C. § 7408 .............................................................................................2

42 U.S.C. § 7409 .............................................................................................2

42 U.S.C. § 7410(a).........................................................................................2

42 U.S.C. § 7410(a)(1) ....................................................................................2

42 U.S.C. § 7410(a)(2)(A)...............................................................................2

42 U.S.C. § 7502(c)(5) ....................................................................................3

42 U.S.C. § 7503 ...........................................................................................20

42 U.S.C. § 7503(a)(1)(A).............................................................................14

42 U.S.C. § 7503(c).........................................................................................3

42 U.S.C. § 7503(c)(2) ..................................................................................14

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Federal Regulations

57 Fed. Reg. 13,498 (Apr. 16, 1992).............................................................33

69 Fed. Reg. 27,837 (May 12, 2004).............................................................15

70 Fed. Reg. 43,663 (July 28, 2005) .............................................................29

70 Fed. Reg. 69,081 (Nov. 14, 2005)........................................................3, 28

72 Fed. Reg. 31,727 (June 8, 2007).............................................................. 33

76 Fed. Reg. 22,038 (Apr. 20, 2011)...............................................1, 6, 13, 36

76 Fed. Reg. 69,928 (Nov. 9, 2011)..........................................................3, 29

Code of Federal Regulations

40 C.F.R. § 51.165(a)(1)(xxxv).....................................................................20

40 C.F.R. § 51.165(a)(3) ...............................................................................20

40 C.F.R. § 51.165(a)(3)(ii)(C)(1)(i).......................................................14, 19

40 C.F.R. § 51.165(a)(3)(ii)(C)(1)(ii)......................................................32, 38

40 C.F.R. Part 51, Appendix S......................................................................20

40 C.F.R. Part 51, Appendix S (IV)(C).........................................................21

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State Cases

Cal. Cmtys. Against Toxics v. South Coast Air Quality Mgmt. Dist., 

No. BS 110792 (Cal. Super. Ct., County of Los Angeles, 

Sept. 7, 2011).................................................................................................25

Cal. Cmtys. Against Toxics v. South Coast Air Quality Mgmt.

Dist., No. B226692, 2011 Cal. App. Unpub. LEXIS 5322

(Cal. Ct. App. July 9, 2011)...........................................................................26

State Statutes

Cal. Health & Safety Code § 40402................................................................2

Cal. Health & Safety Code § 40410................................................................2

Cal. Health & Safety Code § 40440.13(c)(2)................................................26

Cal. Health & Safety Code § 40440.14...........................................................4

Cal. Health & Safety Code § 40440.14(b)(2)................................................25

Cal. Health & Safety Code § 40440.14(d) ......................................................4

Cal. Health & Safety Code § 40460..........................................................2, 34

Cal. Health & Safety Code § 40464..............................................................34

Cal. Health & Safety Code § 40913................................................................2

State Regulations

Cal. Code. Regs. tit. 20, § 1744.5 (2011)........................................................5

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GLOSSARY

AER Annual Emissions Report

APA Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

AQMP Air Quality Management Plan

CAA Federal Clean Air Act

CARB California Air Resources Board

CBE Communities for a Better Environment

CCAT California Communities Against Toxics

District South Coast Air Quality Management District

EPA United States Environmental Protection Agency

ERCs Emission Reduction Credits

LCM Little Company of Mary Hospital

NAAQS National Ambient Air Quality Standards

NSR New Source Review

Nonattainment area An area designated by EPA as failing to meet a 

national ambient air quality standard.

NOx Oxides of Nitrogen

Offset requirements Requirements of 42 U.S.C. § 7503, applicable in 

nonattainment areas, to ensure that all new emissions 

are offset by emissions reductions.

PM10 Coarse Particulate Matter

PM2.5 Fine Particulate Matter

SCAG Southern California Association of Governments

Sentinel Project CPV Sentinel Energy Project 

SIP State Implementation Plan. A plan that identifies the 

actions and programs to be undertaken by the state and 

its subdivisions to implement their responsibilities 

under the Clean Air Act.

SOx Oxides of Sulfur

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INTRODUCTION

California Communities Against Toxics (“CCAT”) and Communities for a 

Better Environment (“CBE”) (collectively “Petitioners”) have petitioned this Court 

for review of EPA’s final rule entitled “Revision to the South Coast Portion of the 

California State Implementation Plan, CPV Sentinel Energy Project AB 1318 

Tracking System,” 76 Fed. Reg. 22,038 (Apr. 20, 2011). The final rule revises the 

South Coast portion of the California State Implementation Plan (“SIP”) by 

providing for the transfer of specific emission offsets from the South Coast Air 

Quality Management District’s internal bank to a tracking system for use by the 

CPV Sentinel Energy Project. 

Petitioners challenge EPA’s rulemaking as both procedurally and 

substantively flawed, raising many of their arguments for the first time in this 

judicial proceeding. Because Petitioners have failed to demonstrate why EPA’s 

final rule should not be upheld, Intervenor, the South Coast Air Quality 

Management District (“District”), requests that the Court affirm EPA’s final rule in 

its entirety. 

STATEMENT OF ISSUES

The District agrees with Respondents’ Statement of Issues.

STATEMENT OF FACTS

I. The District Plans for the Attainment of Air Quality Standards

The Clean Air Act (“CAA”) requires each state to adopt a SIP containing 

enforceable emissions limits and control measures that will achieve the federal 

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ambient air quality standards in each of the state’s air basins. CAA § 110, 42 

U.S.C. § 7410(a)(2)(A). The federal air quality standards limit the concentration 

of “criteria” pollutants, including ozone, coarse particulate matter (“PM10”), fine 

particulate matter (“PM 2.5”), oxides of sulfur (“SOx”), and oxides of nitrogen

(“NOx”). CAA §§ 109, 110, 42 U.S.C. §§ 7408, 7409. The District is the regional 

air pollution control agency charged with the primary responsibility to plan for and 

attain the air quality standards in the South Coast Air Basin, which consists of all 

of Orange County, and the non-desert portions of Los Angeles, Riverside, and San 

Bernardino Counties as well as in the Salton Sea Air Basin, located within 

Riverside County. Cal. Health & Safety Code §§ 40402, 40410, 40460, 40913. 

Currently, the South Coast Air Basin and the Coachella Valley Planning Area, 

located within the Salton Sea Air Basin, are designated as nonattainment areas for 

PM10. PER000018, 26. Additionally, SOx is a precursor to PM10 and is also 

treated as a PM10 nonattainment pollutant. Id. 

In coordination with the California Air Resources Board (“CARB”) and the 

Southern California Association of Governments (“SCAG”), the District 

periodically prepares an Air Quality Management Plan (“AQMP”) designed to 

bring the South Coast Air Basin and the Salton Sea Air Basin into attainment. Cal.

Health & Safety Code § 40460; CAA § 100, 42 U.S.C. § 7410(a). Following 

approval of an AQMP by the District’s Governing Board, the AQMP is submitted 

to CARB and then to EPA for approval and inclusion into the SIP. CAA § 110,

42 U.S.C. § 7410(a)(1); PER000017-20. The most recently SIP-approved AQMP 

containing an attainment demonstration for PM10 in the South Coast Air Basin was 

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adopted by the District in 2003 and approved by EPA in 2005. Approval and 

Promulgation of [SIPs] for Air Quality Planning Purposes; California – South 

Coast and Coachella, 70 Fed. Reg. 69,081 (Nov. 14, 2005). In 2007, the District 

adopted an AQMP containing an attainment demonstration for PM2.5, a different 

criteria pollutant, which was then SIP-approved by EPA in 2011. Approval of Air 

Quality Implementation Plans; California; South Coast; Attainment Plan for 1997 

PM2.5 Standards, 76 Fed. Reg. 69,928 (Nov. 9, 2011). 

The Clean Air Act also requires that SIPs establish a permitting program for 

new and modified major stationary sources located in nonattainment areas, as well 

as provide that emissions increases of nonattainment pollutants or their precursors 

be offset by corresponding emissions reductions. CAA §§ 172, 173, 42 U.S.C. §§ 

7502(c)(5), 7503(c). EPA has authorized the District to implement its New Source 

Review Permitting Program as promulgated in Regulation XIII, which was initially 

approved into the District’s portion of the SIP in 1996. PER000018. Regulation 

XIII includes those District rules governing emissions offsets. Id. District Rule 

1303(b)(2) mandates that a permit to construct a new source or modify an existing 

source will not be issued by the District unless the source is exempt from offset 

requirements pursuant to Rule 1304, emission increases are offset by the purchase 

of emission reduction credits (“ERCs”) pursuant to Rule 1309, or the source 

obtains allocations from the District’s Priority Reserve internal accounts pursuant 

to Rule 1309.1. Id. 

///

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II. Procedural History of the Sentinel Project

The California Legislature passed AB 1318, effective January 1, 2010, 

which requires the District to transfer SOx and PM10 emission offsets from its 

internal bank to eligible electric generating facilities. Cal. Health & Safety Code 

§ 40440.14.1

The emission reductions contained in the AB 1318 Tracking System were 

identified from reductions of SOx and PM10 occurring between 1999 and 2008 

from permitted equipment that had permanently ceased operations in the District 

and had reduced actual emissions. PER000024. These transferred emissions 

 Prior to the passage of this legislation, the CPV Sentinel Energy 

Project (“Sentinel Project”), an 850-megawatt electrical generating facility sited in 

Riverside County, was not eligible to obtain emissions offsets from the District’s 

Priority Reserve internal account. PER000024. In accordance with state law

requirements, the District made the requisite finding that the Sentinel Project was 

an “eligible electric generating facility” pursuant to Section 404401.14(d) of the 

California Health & Safety Code. PER000023-25. The District then identified 

specific emissions reductions in its internal accounts to transfer to the Sentinel

Project and named the newly created account the AB 1318 Tracking System. Id. 

 1 The District’s internal accounts consist primarily of emissions reductions 

from facilities that have shut-down, but that did not receive ERCs which they 

could sell in the open market for use by other projects undergoing permitting and 

requiring offsets. For a discussion of the internal accounts see the District Court 

and Ninth Circuit opinions in Natural Res. Def. Council v. South Coast Air Quality 

Mgmt. Dist., finding and affirming that the District is not required to operate a 

tracking system for its internal accounts. 694 F. Supp. 2d 1092 (C.D. Cal. 2010); 

651 F.3d 1066 (9th Cir. 2011).

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reductions had never been used as offsets by any other source and cannot be used 

as offsets for any other source in the future if they are used as offsets to obtain a 

permit to construct and to operate the Sentinel Project. Id. 

After identifying the emissions reductions to be transferred into the AB 1318 

Tracking System, the District reviewed supporting documentation for each offset 

and compiled a set of the documents it used to verify that a sufficient amount of 

offsets existed in the account. PER000019. The District then issued an Addendum 

to the Determination of Compliance for the Sentinel Project on March 2, 2010,2

Following the Determination of Compliance, Petitioners, who were also 

Intervenors in the CEC licensing proceeding for CPV Sentinel LLC (“Sentinel”), 

submitted California Public Records Act requests to the District seeking 

information related to the offsets in the AB 1318 Tracking System. Respts’ RJN, 

Exhibit 1; District’s RJN, Exhibits 2, 3. In response to their request, the District 

provided Petitioners with electronic links to the documents supporting the offsets 

which included a determination that it complied with all applicable requirements of 

local, state, and federal air quality rules and regulations, and submitted the offset 

evaluation and AB 1318 Tracking System to the California Energy Commission

(“CEC”). See Respondents’ Motion to Take Judicial Notice, Exhibit 1 (hereafter 

“Respts’ RJN”) (Log #55739); see South Coast Air Quality Management District’s 

Motion to Take Judicial Notice, Exhibit 1 (hereafter “District’s RJN”).

 2 The Determination of Compliance is a step in the licensing of a power plant 

by the California Energy Commission in which the applicable air pollution control 

district determines whether the project will comply with all air pollution rules and 

regulations. Cal. Code. Regs. tit. 20, § 1744.5 (2011).

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in the AB 1318 Tracking System. District’s RJN, Exhibit 4. Over the next few 

months, the CEC requested briefing and expert testimony on the issue of air quality 

– a discussion which was informed entirely by the same set of offset 

documentation. Respts’ RJN, Exhibit 1.3

While the CEC licensing proceeding was pending, on July 9, 2010, the 

District’s Governing Board adopted a resolution revising the District’s portion of 

the SIP to include the Sentinel Project AB 1318 Tracking System. PER000017-18. 

The District submitted this SIP revision to CARB, which then submitted the 

Sentinel Project AB 1318 Tracking System to EPA as a source-specific SIP 

revision on September 10, 2010. PER000017. EPA issued a completeness letter 

on October 27, 2010. Id. Following notice and comment in the Federal Register,

on April 20, 2011, EPA took final action to approve the source-specific SIP 

revision for the District’s portion of the California SIP, providing a federallyapproved and enforceable mechanism for the District to transfer the offsets in the 

AB 1318 Tracking System to Sentinel for use as offsets. See Revision to the South 

Coast Portion of the California State Implementation Plan, CPV Energy Project 

AB 1318 Tracking System, 76 Fed. Reg. 22,038 (Apr. 20, 2011). 

 The CEC approved Sentinel’s 

application for certification and issued a license on December 1, 2010. Respts’

RJN, Exhibit 2. 

///

 3 The supporting documentation for the offsets in the AB 1318 Tracking 

System was served on all parties to the CEC proceeding twice. On June 11, 2010, 

counsel for Sentinel served a copy of the documents and, on July 8, 2010, the 

District served a reorganized set of the documents. District’s RJN, Exhibits 5, 6.

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ARGUMENT

I. Petitioners Had Actual Notice of the Documentation EPA Relied Upon

and Therefore May Not Claim Procedural Error

Petitioners premise their allegation that EPA committed procedural error by 

failing to list support documents in the docket on their claim that they “had no way 

of knowing” what documents were relied upon by EPA. Petitioners’ Corrected 

Opening Brief at p.18 (hereafter “Pet’rs’ Br.”). However, this claim is specious. 

Petitioners cannot allege defective notice when, in fact, they had actual notice of 

the documentation supporting the AB 1318 Tracking System. 

Actual notice is sufficient to allow for meaningful commentary and thereby 

cures any procedural notice defects during an agency’s rulemaking. Union Oil Co. 

of Cal. & Beacon Oil Co. v. EPA, 821 F.2d 678, 682-83 (D.C. Cir. 1987) (finding 

actual notice of a memorandum that EPA did not properly docket to be sufficient 

to permit petitioners to present their objections and, therefore, rejecting the 

procedural notice claim); see also Small Refiner Lead Phase-Down Task Force v. 

EPA, 705 F.2d 506, 549 (D.C. Cir. 1983) (actual notice renders alleged procedural 

defects harmless); Nat’l Petrochem. & Refiners Ass’n v. EPA, 287 F.3d 1130, 

1148-49 (D.C. Cir. 2002) (holding that a petitioner has actual notice even where it 

hears of a rulemaking proposal only through a “‘casual conversation’ with a 

competitor rather than directly from the agency”). In this case, Petitioners had 

actual notice of the exact content of the AB 1318 support documents before the 

rulemaking ever commenced and, during the rulemaking comment period, EPA 

reminded Petitioners that they had possession of the documents.

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A. Petitioners Examined the Documents in the CEC Licensing 

Proceeding

Despite their claims to the contrary, Petitioners had actual notice of the 

documentation supporting the AB 1318 Tracking System because of their active 

involvement as intervenors in the CPV Sentinel Energy Project Power Plant 

licensing proceeding before the CEC. See Respts’ RJN, Exhibit 1. During the 

pendency of the CEC proceeding, Petitioners were provided with copies of all

documents supporting the AB 1318 Tracking System on three different occasions. 

First, these documents were the subject of two California Public Records 

Act requests submitted by CCAT to the District. On March 31, 2010, CCAT 

specifically asked the District to produce “records that show emission offsets in the 

internal account tracking system pursuant to AB 1318 for Sentinel Power Project 

meet the integrity criteria for qualifying as offsets” and “info[rmation] provided to 

[the District] re emissions offsets that formed the basis for det[ermining] [the] 

project complies [with] all requirements as referenced in [the] letter submitted to 

John Kessler of [CEC] dated 3/2/2010 for CPV Sentinel, ID 152707.” See 

District’s RJN, Exhibits 2, 3. On May 12, 2010, the District provided CCAT with 

electronic links to the documents responsive to their Public Records Act requests. 

District’s RJN, Exhibit 4. The documentation provided consisted of Offset Source 

Calculation/Verification forms and other supporting documents for each facility 

and piece of equipment listed in the AB 1318 Tracking System. 

Second, these same documents that were produced in response to CCAT’s 

Public Records Act requests became the evidentiary basis for the CEC’s air quality 

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hearings in the Sentinel licensing proceeding. On June 11, 2010, counsel for the 

applicant, Sentinel, served a CD copy of the documents on all parties to the CEC 

proceeding, including the Petitioner groups in this case. District’s RJN, Exhibit 5; 

Respts’ RJN at Exhibit 1 (Log # 57122). 

Third, for the convenience of all of the parties in the CEC licensing 

proceeding, the District reorganized the offset documentation and, on July 8, 2010, 

re-served a CD of the documents to the CEC service list. District’s RJN, Exhibit 6;

Respts’ RJN at Exhibit 1 (Log # 57573). This reorganized set of documents 

separated the offset documentation into 62 files sorted by facility, which match the 

62 facilities listed in the AB 1318 Tracking System. The CD containing the 

documents was labeled “Backup Documentation for the Offsets in the AB 1318 

Tracking System” and was dated June 4, 2010. District’s RJN, Exhibit 6. 

As intervenors in the CEC proceedings, Petitioners had the opportunity to 

review the offset documentation. Petitioners submitted extensive expert testimony 

contesting the validity of the credits based upon their interpretation of that 

documentation. On June 15, 2010, both CBE and CCAT filed expert testimony 

from two separate expert witnesses and, on June 30, 2010, CCAT filed rebuttal 

expert testimony. Respts’ RJN, Exhibit 1 (Log #s 57807, 57244, 57451). 

Additionally, the CEC held a formal evidentiary hearing on July 19, 2010 

that was entirely devoted to expert testimony on air quality. District’s RJN, 

Exhibit 7. At the hearing, counsel for CCAT and CBE submitted their written 

expert testimony into evidence and cross-examined the District’s witness regarding 

the offset documentation. Counsel for CBE focused one of her lines of questioning 

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on emissions factors used to calculate offsets for Elsinore Ready-Mix Company 

and Chandler Aggregates. District’s RJN, Exhibit 7, at 60-61. Even though 

Petitioners now claim that the information that they “previously secured from the 

District has no relevance” to EPA’s rulemaking, the fact that they have mounted a 

renewed attack on offsets from these same two facilities in the present proceeding 

demonstrates otherwise. Pet’rs’ Br. at 18, 21-22. 

Counsel for CCAT also questioned the District’s witness as to whether “the 

[D]istrict prepare[d] a SIP amendment that included this AB 1318 tracking 

system.” District’s RJN, Exhibit 7, at 70. When the District’s witness answered 

affirmatively, CCAT’s counsel then outlined the procedure by which the SIP 

package would be submitted to CARB and then to EPA. District’s RJN, Exhibit 7,

at 70-71. Thus, Petitioners knew, at that time, that the documents they were 

discussing were the same ones that supported the SIP revision. Yet, somehow 

Petitioners now maintain that they had “no way of knowing what ‘documents’ 

EPA received or was reviewing.” Pet’rs’ Br. at 18. Given Petitioners’ extensive 

review of the documents and detailed public testimony as to the contents of the

documents in the CEC proceeding, they cannot now claim that they did not have 

actual notice of the offset documentation.

B. The Rulemaking Record Demonstrates that Petitioners Had 

Actual Notice that EPA Was Relying on the Same Supporting 

Documentation Litigated in the CEC Proceeding

The rulemaking record in the present action also makes clear that Petitioners 

were, in fact, aware that EPA was relying on the 62 documents in promulgating the 

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rulemaking. Although Petitioners claim that they first became aware of the 

identity of the documents when EPA responded to their comments in the final 

rulemaking, this is not true. EPA’s January 28, 2011, letter responding to 

Petitioners’ initial request for an extension of time to submit comments makes it 

clear that EPA was relying on the same set of offset documentation. Pet’rs’ Br. at 

14; PER 000038. In that letter, EPA denied the request for an extension and 

explained that Petitioners had more than enough time to review the AB 1318 

Tracking System rule and supporting information because:

The District provided you with a substantial amount of information 

regarding this project in response to your public records request in 

late May 2010. The rule language and supporting documents were 

available from the District at least 30 days prior to the rule 

adoption hearing held by the District Board on July 9, 2010. The 

same information was available when CARB submitted the rule to 

EPA on September 10, 2010. Our proposed approval of the rule is 

based on information that has been publicly available throughout 

the District and State adoption process. PER 000038. 

Petitioners cannot deny that they submitted the Public Records Act requests, 

were intervenors in the CEC proceeding, received copies of the full set of 

documents no less than three times during the CEC proceeding, and submitted 

extensive testimony in that proceeding challenging the contents of the documents. 

Therefore, the EPA’s January 28, 2011, letter makes it abundantly clear that the 

“supporting documents” were the very same documents Petitioners had since May 

2010. PER 000038. 

Further, Petitioners’ own comments make reference to “[t]he AB 1318 

Tracking System documents” and acknowledge that EPA explained that there 

“may be documents available at its offices that are not provided electronically or 

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12

listed in the index.” SER0009, 15. If, at any time, Petitioners wanted clarification 

regarding the documents that EPA was making publicly available at its offices, 

Petitioners could have contacted EPA to inquire. Petitioners never did so,

precisely because they already had the same set of documents. Respondents’ 

Corrected Answering Brief, p.15 (hereafter “Respts’ Br.”).

Regardless of whether EPA docketed the list of the 62 documents, 

Petitioners had actual notice of the documents EPA relied on and had a meaningful 

opportunity to comment. Accordingly, the procedural notice claim must fail. 

II. The Record Supports EPA’s Determination that the AB 1318 Tracking 

System Contains a Sufficient Number of Offsets 

Pursuant to Section 706 of the Administrative Procedures Act, 5 U.S.C. 

§ 706(2)(a), agency actions shall be set aside by a reviewing court only if such 

action is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law.” As this court has held, an appellate court’s role is to 

ensure that EPA has made no “clear error of judgment” that would render its action 

arbitrary and capricious. Latino Issues Forum v. EPA, 558 F.3d 936, 941 (9th Cir. 

2009). Courts give an “extreme degree of deference to EPA when it is evaluating 

scientific data within its technical expertise...[s]uch deference is especially 

appropriate in [a court’s] review of EPA’s administration of the complicated 

provisions of the Clean Air Act.” Catawba County v. EPA, 571 F.3d 20, 41 (D.C. 

Cir. 2009) (internal quotations omitted); see also Sierra Club v. EPA, 346 F.3d 

955, 961 (9th Cir. 2003) (recognizing in a Clean Air Act case that “where analysis 

of the relevant documents requires a high level of technical expertise, [the court] 

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must defer to the informed discretion of the responsible federal agencies”) (internal 

quotations omitted). Even when an agency explains its decision with “less than 

ideal clarity, a reviewing court will not upset the decision on that account if the 

agency’s path may reasonably be discerned.” Alaska Dep’t of Envtl. Conservation 

v. EPA, 540 U.S. 461, 497, 124 S. Ct. 933, 1006 (2004) (internal quotations 

omitted). 

Moreover, if an agency relies on factual findings or assumptions which the 

court regards as in error, this Court has held that it will not overturn an 

administrative rulemaking decision where the error “clearly had no bearing on the 

procedure used or the substance of the decision reached.” Sagebrush Rebellion, 

Inc. v. Hodel, 790 F.2d 760, 765 (9th Cir. 1986); see also Cal. Wilderness Coal. v. 

U.S. Dept. of Energy, 631 F.3d 1072, 1090 (9th Cir. 2011) (quoting Sagebrush 

Rebellion for this rule). This Court also has clarified that “the burden of showing 

an error is harmful normally falls upon the party attacking the agency’s 

determination.” Cal. Wilderness Coal., 631 F.3d at 1091 (quoting Shinseki v. 

Sanders, 556 U.S. 396, 545, 129 S. Ct. 1696, 1706 (2009)).

Here, Petitioners have failed to demonstrate that the alleged errors in EPA’s 

rulemaking were harmful and would have had a bearing on the substance of EPA’s 

decision. It is clear from the record that even if the challenged surplus and 

quantifiable offsets were removed from the AB 1318 Tracking System, EPA would 

have reached the same decision – that “a sufficient quantity” of offsets in the 

Tracking System meet the requirements of the Clean Air Act. See PER 000006; 

76 Fed. Reg. 22,038, 22,039 (April 20, 2011) (“EPA examined each of the specific 

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emission reduction actions that are the basis for the credits being transferred 

pursuant to this SIP revision and found a sufficient quantity – compared to the 

amount needed for the CPV Sentinel Energy Project, to meet the CAA offset 

requirements”). Although the maximum amount of offsets needed for the Sentinel 

Project is 118,120 lbs/year of PM10 and 13,928 lbs/year of SOx, the District 

transferred a total of 137,799 lbs/year of PM10 and 25,438 lbs/year of SOx into the 

AB 1318 Tracking System, creating an excess of 19,679 lbs/year of PM10 and 

11,418 lbs/year of SOx. PER000026, 32, 36. Petitioners have not demonstrated, 

and cannot demonstrate, that EPA would have determined that the AB 1318 

Tracking System contained an insufficient number of offsets for the Sentinel 

Project had the alleged errors not been made. Therefore, the errors Petitioners 

allege clearly had no bearing on the “substance of the decision reached” and EPA’s 

rulemaking should be upheld. Cal. Wilderness Coal., 631 F.3d at 1090.

A. Alleged Violations of the “Surplus” Requirement Do Not Impact

EPA’s Determination that Sufficient Offsets are Available for the 

Sentinel Project

When new or modified sources “offset” their emission increases, sufficient 

offsetting emission reductions must be obtained “by the time the source is to 

commence operation ... so as to represent ... reasonable further progress.” 

CAA § 173, 42 U.S.C. § 7503(a)(1)(A). Emission reductions that are used as 

offsets must be “surplus” to any other federal requirement to reduce emissions. 

PER000021; CAA § 173, 42 U.S.C. § 7503(c)(2), 40 C.F.R. § 

51.165(a)(3)(ii)(C)(1)(i). If a piece of equipment that has shut down would be 

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subject to a subsequently adopted air quality regulation if the equipment were still 

in operation, the emissions reductions from that equipment must be adjusted 

downward to account for reductions that would be required by the new regulation. 

PER000021.

One basis of Petitioners’ challenge to EPA’s rulemaking is that several

offsets in the AB 1318 Tracking System were not properly surplus-adjusted to 

account for subsequently adopted air quality requirements that would reduce 

emissions. Petitioners raise their substantive challenge to the offsets subject to 

Rules 1156 and 1157 for the first time in their Opening Brief. Pet’rs’ Br. at 20-22. 

Despite the fact that Petitioners have deprived EPA of the opportunity to consider 

and respond to their specific comments during the administrative proceedings, the 

record nevertheless supports EPA’s determination that a sufficient number of the 

emissions reductions in the AB 1318 Tracking System meet the Clean Air Act 

offset requirements. As such, Petitioners have failed to meet their burden to 

demonstrate that the alleged errors had any bearing on the substance of the 

decision reached. Cal. Wilderness Coal., 631 F.3d at 1090.

Although Petitioners claim that EPA violated the surplus requirement, they 

implicitly acknowledge that the surplus adjustment for the offsets in the AB 1318 

Tracking System would not be contained in EPA’s rulemaking because “[s]urplus 

is determined when the emission reductions are offered for use.” Pet’rs’ Br. at 20. 

In fact, it is EPA policy to defer the surplus adjustment until offsets are offered for 

use. See 69 Fed. Reg. 27,837, 27,840 (May 12, 2004). In prior rulemakings on the 

subject, EPA has stated that the surplus value should be reconciled “no earlier than 

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at the time of use when the permitting agency formally determines that an 

applicant meets Clean Air Act requirements for an authority to construct permit.” 

Id. 

At the time the District submitted the SIP revision for the Sentinel Project, it 

had not performed a surplus adjustment because the District had not yet formally 

determined that Sentinel had met the requirements for final District authority to 

construct. Rather, just prior to the issuance of Sentinel’s Permit to Construct and 

the transfer of the emissions reductions into the AB 1318 Tracking System, the 

District surplus-adjusted the emission reductions based on a review of rules that 

had been adopted or amended since the sources identified in the AB 1318 Tracking 

System ceased operations. District’s RJN, Exhibit 7, at 53-55, 62-63. Because the 

adjustments were made at the time the offsets were offered for use, and thus 

months after the SIP revision was submitted to CARB and EPA, the surplus 

adjustment was not and could not be contained in the rulemaking record. 

Additionally, Petitioners assert that District Rules 1156 and 1157 require 

reductions in PM10 and SOx and, thus, render some of the emission reductions in 

the AB 1318 Tracking System non-surplus. First, contrary to Petitioners’ claims, 

Rule 1156 does not apply to any of the facilities in the AB 1318 Tracking System. 

Rule 1156 seeks to reduce particulate matter emissions from cement manufacturing 

facilities and applies to all operations, materials handling, and transport at cement 

manufacturing facilities. Petitioners’ Request for Judicial Notice, Exhibit E 

(hereafter “Pet’rs’ RJN”); District’s RJN, Exhibit 8. Petitioners claim that two 

facilities providing credits for the AB 1318 Tracking System – Elsinore ReadyCase: 11-71127 01/27/2012 ID: 8048208 DktEntry: 52 Page: 25 of 51
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Mix Co Inc. and Oldcastle Westile, Inc. – fall under Rule 1156 for a total 1,436 

lbs/year of PM10 emission reductions. Pet’rs’ Br. at 22, n.6. However, neither 

facility is subject to Rule 1156. As the Staff Report to Rule 1156 states, the Rule

applies to only two facilities, neither of which have emission reductions in the 

AB 1318 Tracking System. District’s RJN, Exhibit 8, at 1 (“TXI [Riverside 

Cement] is one of the two facilities in the [District’s] jurisdiction subject to Rule 

1156; the other being California Portland Cement Company (CPCC) located in 

Colton”). Thus, contrary to Petitioners’ assertion, neither Elsinore Ready-Mix Co. 

Inc. nor Oldcastle Westile, Inc. is subject to Rule 1156. 

Second, Petitioners exaggerate the surplus adjustment needed for Rule 1157. 

Rule 1157 is a housekeeping rule which seeks to reduce PM10 emissions from 

aggregate and related operations.

4

Petitioners assert that Rule 1157 applies to Matthews International Corp., a 

facility with three pieces of equipment that account for 7,491 lbs/year of PM10. 

 Rule 1157, adopted in January 2005, defines 

“aggregate operations” as “operations that produce sand, gravel, crushed stone, 

and/or quarried rocks.” Pet’rs’ RJN, Exhibit G (Rule 1157(c)(1)). “Related 

operations,” which are also subject to the rule, are defined as “operations that use 

sand, gravel, cement, crushed stone, and/or quarried rocks in their products, or 

crush miscellaneous base, and inert landfills that handle construction/demolition 

debris.” Pet’rs’ RJN, Exhibit G (Rule 1157(c)(34)). 

 4 Rule 1157 applies to Chandler Aggregates, Whitewater Rock & Supply, 

Oldcastle Westile, Inc., Ortiz Enterprises, Inc., CDE Resources, Inc., and Elsinore 

Ready-Mix Co. Inc. PER000028-32.

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Matthews International Corp. is a foundry that produces brass moldings. 

SER0071-73. As a brass foundry, Matthews International Corp. is not in the 

business of aggregate operations or related operations per Rule 1157 because the 

foundry does not produce nor use sand, gravel, crushed stone or quarried rocks in 

its products. SER0071-88. Accordingly, there is no need to surplus-adjust the 

7,491 lbs/year of PM10 credits from Matthews International Corp. pursuant to 

Rule 1157.

Even at the extreme, if every offset from each of the six facilities were

completely subtracted from the AB 1318 Tracking System (instead of performing 

the required downward adjustment for the offsets that are no longer surplus so that 

a percentage of the offsets would remain), there would still be more than enough 

offsets to accommodate the Sentinel Project. The AB 1318 Tracking System 

currently contains 137,799 lbs/year of PM10 emission credits, while the Sentinel 

Project only requires 118,120 lbs/year of PM10. PER000026, 32. Therefore,

127,575 lbs/year of PM10 will remain if the emission reductions (10,224 lbs/year of 

PM10) from the following facilities subject to Rule 1157 and identified by 

Petitioners are subtracted in their entirety: 2,907 lbs/year of PM10 (Chandler 

Aggregates), 4,836 lbs/year of PM10 (Whitewater Rock & Supply Co.), 1,962 

lbs/year of PM10 (Oldcastle Westile, Inc.), 464 lbs/year of PM10 (Ortiz Enterprises 

Inc.), 28 lbs/year of PM10 (CDE Resources Inc.), and 27 lbs/year of PM10 (Elsinore 

Ready Mix).

5

 5 As noted above, Petitioners incorrectly claim that some of the equipment at 

Elsinore Ready-Mix and Oldcastle Westile is subject to Rule 1156. However, the 

 PER000028-32.

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Thus, even after subtracting all of the emission credits from all of the 

facilities subject to Rule 1157, the total number of offsets in the AB 1318 Tracking 

System continues to far exceed the amount required for the Sentinel Project. 

Accordingly, EPA’s misstatement in the final rulemaking that there were no new 

rules or standards that would require a surplus adjustment for aggregate and related 

sources “clearly had no bearing on” the validity of EPA’s determination that there 

are sufficient offsets in the AB 1318 Tracking System for the Sentinel Project. 

Cal. Wilderness Coal., 631 F.3d at 1090. Thus, EPA’s decision should be upheld.

B. Alleged Violations of the “Quantifiable” Requirement Have No 

Bearing on EPA’s Determination that Sufficient Offsets Are 

Available for the Sentinel Project

The federal requirement that offsets be “quantifiable” mandates that an 

accurate assessment is made of the quantity of emissions emitted by a source prior 

to the modification or shutdown of the subject equipment. PER000021; 40 C.F.R. 

§ 51.165(a)(3)(ii)(C)(1)(i). The detailed emissions documentation contained in the 

record, and available to Petitioners, was entirely sufficient for EPA to use to 

quantify the emissions previously emitted by those facilities providing offsets to 

the AB 1318 Tracking System. 

 

concrete batch equipment at Elsinore Ready-Mix (1,290 lbs/year of PM10) and the 

cement slurry system at Oldcastle Westile (146 lbs/year of PM10) that Petitioners 

identify as being subject to Rule 1156 are in fact subject to Rule 1157. 

PER000028-32. If the entirety of the offsets from these two pieces of equipment 

were also subtracted, the total number of offsets in the AB 1318 Tracking System 

would continue to exceed the amount needed for the Sentinel Project.

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i. EPA Appropriately Relied on Emissions Data from Either 

the Previous One or Two Year Period for Each Source of 

Offsets

Without citing any authority to support their contention, Petitioners assert 

that EPA may not use only one year of emissions data to quantify offsets and, 

based on that unfounded assertion, argue that EPA’s determination that the 

emission reductions meet the quantifiable requirement is arbitrary and capricious. 

Pet’rs’ Br. at 25. In what appears to be an attempt to cherry-pick the most 

favorable regulatory language, Petitioners completely ignore the relevant provision 

in Appendix S – despite the fact that they cite Appendix S at several other points in 

their brief – and instead vaguely refer to the definition of “actual emissions,” an 

inapplicable term that has a separate 24-month requirement. Pet’rs’ Br. at 4, 19, 

25; 40 C.F.R. § 51.165(a)(1)(xxxv) (defining “actual emissions” for the purpose of 

calculating emissions increases from modifications, not for calculating emission 

offsets). 

While neither the Clean Air Act nor EPA’s regulations define how to 

calculate actual emissions for purposes of providing emissions reductions, EPA’s 

Emissions Offset Interpretive Ruling, codified at 40 C.F.R. Part 51, Appendix S, 

clearly establishes that one year of emissions data may be used for purposes of 

calculating the baseline “for determining credit for emission and air quality 

offsets.” 40 C.F.R. Part 51, Appendix S (IV)(C); see also 42 U.S.C. § 7503 

(Section 173 of the Clean Air Act does not define how to calculate emissions for 

the provision of offsets); 40 C.F.R. § 51.165(a)(3) (EPA’s regulations regarding 

SIP requirements for emission credits also lacks a definition). Appendix S 

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specifically states that “the baseline emissions for existing sources providing the 

offsets should be calculated using the actual annual operating hours for the 

previous one or two year period (or other appropriate period if warranted by 

cyclical business conditions).” 40 C.F.R. Part 51, Appendix S (IV)(C). 

Consistent with the requirement in Appendix S, the offset documentation for 

all of the facilities in the AB 1318 Tracking System contain emissions data from 

either the previous one or two year period.6

For a minor portion of the equipment, the data from the year immediately 

preceding the shutdown was not available. In these instances, a very conservative 

approach was taken and the baseline was determined by averaging the emissions 

from the twelve month period that occurred two years prior to the shutdown date 

(“year two”), with the emissions (which were assumed to be zero) from the twelve 

month period immediately preceding the shutdown (“year one”). In essence, the 

offsets from all of the equipment that only had year two emissions data available 

were cut in half. For example, to calculate the offsets from a turbine engine at 

 Indeed, for the majority of the 

equipment, emissions from the two years prior to shutdown were averaged to 

determine the baseline emissions for purposes of crediting offsets. For example, to 

calculate the offsets from a glass melting furnace at AAA Glass Corp. that 

shutdown in 2005, the emissions from 2004-2005 (609 lbs/year of PM10) were 

averaged with the emissions from 2003-2004 (777 lbs/year of PM10) to arrive at an 

offset amount of 693 lbs/year of PM10. AQMD SER0054.

 6 Contrary to the implication in Petitioners’ Opening Brief, there are no 

facilities for which emissions reports are entirely lacking. Pet’rs’ Br. at 25. 

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AES Huntington Beach that shutdown in 2002, the 2001-2002 emissions 

(conservatively assumed to be 0 lbs/year of PM10) were averaged with the 2000-

2001 emissions (588 lbs/year of PM10) to arrive at an offset amount of 294 lbs/year

of PM10. AQMD SER0099. This approach was taken to ensure that the reductions 

were properly quantified and not over-valued to account for a possible situation 

wherein the emissions for these particular facilities decreased to zero or near zero 

in the year immediately preceding shutdown. 

And, for a very small fraction of the facilities (seven out of sixty-two),

7

///

the 

baseline emissions were calculated based on the emissions data from the year 

immediately preceding the shutdown date. PER000028-32. For these facilities, 

because the data from the twelve month period immediately preceding the 

shutdown was available, there was no possibility that the year one emissions overestimated the actual emissions for the facility prior to shutdown. Because each of 

the three approaches used to determine the correct quantity of offsets in the AB 

1318 Tracking System used either the previous one or two year period, consistent 

with EPA’s Emissions Offset Interpretative Ruling, the offsets were properly 

quantified. 

 7 These seven facilities are: Colorgraphics (40 lbs/yr of PM10), Universal 

Die Casting Co. (393 lbs/yr of PM10), Kraco Enterprises Inc. (206 lbs/yr of PM10), 

CDE Resources (204 lbs/yr of PM10), US Postal Service (148 lbs/yr of PM10), One 

Wilshire (16 lbs/yr of PM10) and Whitewater Rock & Supply (4,836 lbs/yr of 

PM10). PER000024-32.

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ii. Alleged Inaccuracies in the Documentation for a Single 

Facility is Not Emblematic of the Tracking System as a 

Whole and Does Not Affect EPA’s Ultimate Determination

Finally, Petitioners claim that the documentation for the Little Company of 

Mary Hospital (“LCM”), a facility accounting for 388 lbs/year of PM10 in the 

AB 1318 Tracking System, is insufficient and demonstrates a pervasive lack of 

offset documentation. PER000072. First, simply alleging that one facility (with a 

very small number of emission reductions) had insufficient documentation does 

not, as Petitioners claim, call into question all of the other facilities that Petitioners 

could not find error with. Pet’rs’ Br. at 22-26. Shinseki, 556 U.S. at 545 (“the 

burden of showing that an error is harmful normally falls upon the party attacking 

the agency’s determination”).

Second, the allegation that four LCM boilers generating 388 lbs/year of 

PM10 offsets have insufficient documentation falls far short of establishing that 

EPA might have reached a different result in this case. PER000031. Assuming, as 

Petitioners claim, that the LCM offsets are not quantifiable, there are still more 

than enough offsets for the Sentinel Project even if all of the LCM offsets are 

removed from the AB 1318 Tracking System. As discussed above, 127,575 

lbs/year remain in the AB 1318 Tracking System if all of the emission reductions 

from the six facilities properly identified by Petitioners as being subject to Rule 

1157 were removed from the Tracking System. If the additional 388 lbs/year of 

PM10 offsets generated from LCM are removed, 127,187 lbs/year in offsets will 

still remain in the tracking system – significantly more than the 118,120 lbs/year of 

PM10 required for the Sentinel Project. Thus, Petitioners have again failed to meet 

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their burden of demonstrating that the AB 1318 Tracking System contains an 

insufficient amount of valid offsets for the Sentinel Project and that the alleged 

errors had any bearing whatsoever on the substance of the decision reached by 

EPA. Cal. Wilderness Coal., 631 F.3d at 1090.

C. The District’s Internal Accounts Have a Positive Balance and, 

Therefore, the Transfer of Offsets to the AB 1318 Tracking 

System Was Proper

Initially, Petitioners argue that there is no evidence that the District’s 

accounts have a positive balance. Pet’rs’ Br. at 35. They argue that evidence in 

the record, such as the Annual Equivalency Determinations that the District 

performed, supports their claim that the balances are negative. Pet’rs’ Br. at 35. 

But, Petitioners fail to cite anything in those reports that supports their claim, and 

indeed the balance of offsets in the internal accounts is positive in the latest report 

cited (April 2, 2004) for both PM10 and SOx. AQMD SER0039, at Table 1 (PM10 =

41.24 tons per day, and SOx = 18.76 tons per day). Moreover, in February 2011, 

the District presented to its Governing Board an updated running balance, which 

demonstrates that, as of the beginning of 2009, there remained a positive balance 

of 11.50 tons per day of PM10 and 2.11 tons per day of SOx, and that the balances 

were projected to remain positive through the end of 2011. District’s RJN, Exhibit 

9, at I-7.

8

 8 The balances in the 2011 report, which were included as an appendix to the 

Rule 1315 Staff Report, include the use of minor source offsets, but Petitioners 

cannot identify any provision of state or federal law that prevents such use. 

District’s RJN, Exhibit 9.

 

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Petitioners incorrectly base their argument on the assumption that state or 

federal law somehow prohibits the District’s use of minor source shutdowns until 

EPA approves the District’s Rule 1315.

9

 Pet’rs’ Br. at 35. First, Petitioners fail to 

point out the relevant provisions of state law.10

By the same token, SB 827, which authorizes the District to issue permits for 

sources relying on the internal offset accounts starting in January 2010, contains 

These provisions make clear that 

the District is not only allowed, but is actually required to use minor source orphan 

shutdowns in its tracking system. AB 1318, which requires the District to provide 

internal account offsets to the Sentinel power plant, specifically states that the 

District shall use the offset tracking system used prior to the adoption of Rule 1315 

but, “[i]n addition to using the prior offset tracking system, the district shall also 

make use of any emission credits that have resulted from emission reductions and 

shutdowns from minor sources since 1990.” Cal. Health & Safety Code 

§ 40440.14(b)(2).

 9 Rule 1315 – Federal New Source Review Tracking System, sets forth the 

requirements for the operation of the District’s internal offset accounts. Following 

the readoption of Rule 1315 by the District’s Governing Board on February 4, 

2011, the District submitted the Rule to EPA for approval as a SIP revision. EPA 

has not yet taken action on the SIP revision.

10 Petitioners argue that the state court previously ruled that the prior 

adoption of Rule 1315 in 2006 and 2007 violated state law (specifically the 

California Environmental Quality Act). Pet’rs’ Br. at 31. The state court has,

however, since upheld the version of Rule 1315 that was readopted by the 

District’s Governing Board in February 2011 against a California Environmental 

Quality Act challenge, and Petitioners did not appeal. See Cal. Cmtys. Against 

Toxics v. South Coast Air Quality Mgmt. Dist., No. BS 110792 (Cal. Super. Ct., 

County of Los Angeles, Sept. 7, 2011) (unpublished decision). 

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the same language, specifying that the District must use the tracking system in 

effect prior to the adoption of Rule 1315 until EPA approves a new tracking 

system, but also clearly states that: “[i]n addition to using the prior offset tracking 

system, the district shall also make use of any emission credits that have resulted 

from emission reductions and shutdowns from minor sources since 1990.” Cal. 

Health & Safety Code §40440.13(c)(2). Significantly, the California Court of 

Appeal recently rejected Petitioners’ argument that AB 1318 and SB 827 were 

unconstitutional. See Cal. Cmtys. Against Toxics v. South Coast Air Quality Mgmt.

Dist., No. B226692, 2011 Cal. App. Unpub. LEXIS 5322 (Cal. Ct. App. July 9, 

2011). 

Furthermore, as a matter of federal law, the District may use minor source 

offsets in its internal accounts. Petitioners previously filed a “Petition” with EPA

on this very issue on December 10, 2009. PER000006. The Petition asked EPA to

“issue a written statement...informing the District that it will be in violation of the 

applicable State Implementation Plan...if the District issues new source review 

(“NSR”) permits that rely on the District’s internal bank of offsets.” Id.; AQMD 

SER0007. Specifically, Petitioners argued that “the District’s approved SIP does 

not allow the District to fund its internal bank with a category of offsets that are 

collected when “minor stationary sources’ cease or reduce operations without 

requesting emission reduction credits....” AQMD SER0007-8. In response to the 

Petition, the District explained that “the existing, federally approved SIP allows it 

to fund its internal bank with offsets that are collected from minor source orphan 

shutdowns.” AQMD SER0008. The EPA Administrator concluded that, “[t]he 

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Petition and the District’s Response persuade me that the existing SIP does not 

preclude the internal bank from operating and I deny the Petition ....” Id.

Petitioners now seize upon this language to argue that just because the SIP 

does not “preclude” the use of minor source shutdowns does not mean that the SIP 

allows such use. Pet’rs’ Br. at 34-35. Petitioners insist that EPA approval of the 

revised Rule 1315 is a prerequisite to the use of minor source shutdowns. Id. This 

argument misrepresents EPA’s position. EPA expressly rejected Petitioners’ 

argument that EPA approval of the revised Rule 1315 is a prerequisite to use of 

minor source orphan shutdowns. AQMD SER0018 (“The EPA continues to 

encourage the District to submit Rule 1315 for adoption into the SIP to enhance 

transparency and reliability but not as a necessity to correct a deficiency in the 

existing SIP”) (emphasis added). EPA made clear that it “has consistently viewed 

minor orphan shutdowns as a legitimate source of offsets to fund the District’s 

internal bank accounts...” AQMD SER0019. Ultimately, EPA’s Petition 

Response expressly concluded that the existing SIP allows the use of minor source 

orphan shutdowns. Id. (“Because the existing 1996 SIP allowed the District to 

collect and use minor source orphan shutdowns, the state legislation does not 

constitute a SIP revision”) (emphasis added). Thus, EPA agrees that the existing 

SIP allows the use of minor source shutdowns.

Finally, Petitioners argue that EPA’s Petition Response does not address the 

same issue involved in this case. Pet’rs’ Br. at 34-35. However, the Petition 

Response addresses the specific issue involved here – whether the internal 

accounts may include minor source offsets and thus whether the accounts have a 

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positive balance. It is well established that the accounts, which currently include 

minor source offsets in accordance with state and federal law, have a positive 

balance.

D. Alleged Violations of the “Creditable” Requirement Must Fail 

Because the Offsets in the AB 1318 Tracking System Are 

Explicitly Included in the AQMP

i. Petitioners’ Argument is Based on the Wrong AQMP

Petitioners allege that certain of the offsets are not creditable because the 

equipment shutdown occurred prior to the end of 2002, which is the base year in 

the 2007 AQMP. Pet’rs’ Br. at 27. As EPA has explained, the 2003 PM10 SIP,

rather than the 2007 AQMP, is the proper AQMP to look at for this rulemaking. 

Respts’ Br. at 35-36. The most recently approved attainment demonstration for the 

South Coast area and for the pollutant at issue in this case – PM10 – was adopted by 

the District in 2003 and approved by EPA in 2005. 11

 11 Note that the only reason that SOx offsets are required for the Sentinel 

Project is because SOx is a precursor to PM10. 

Respts’ Br. at 36; Approval 

and Promulgation of [SIPs] for Air Quality Planning Purposes; California – South 

Coast and Coachella, 70 Fed. Reg. 69,081 (Nov. 14, 2005) (“EPA is taking final 

action to approve state implementation plan (SIP) revisions submitted by the State 

of California to provide for attainment of the particulate matter (PM-10) national 

ambient air quality standards (NAAQS) in the Los Angeles-South Coast Air Basin 

and the Coachella Valley Area....”). Significantly, the base year in the 2003 PM10

SIP is 1997. See Proposed Approval and Promulgation of [SIPS] for Air Quality

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29

Planning Purposes; California – SouthCoast and Coachella, 70 Fed. Reg. 43,663, 

43,665 (July 28, 2005). 

None of the offsets transferred to Sentinel have a shutdown date earlier than 

1999, nor have Petitioners alleged that there are any offsets transferred to Sentinel 

with a shutdown date prior to 1999. PER000020; SER0015. Accordingly, 

Petitioners’ claim that the offsets are not creditable is erroneous because none of 

the offsets derive from shutdowns occurring before the 1997 base year in the 2003 

PM10 SIP.

12

Although EPA erroneously described the 2007 AQMP as the relevant 

document in the rulemaking, the Court of Appeals may uphold an agency action 

based on a reason different from that stated by the agency. An administrative 

“order must be judged upon the grounds upon which action was based, unless the 

appellate court concludes that the decision already made...should properly be 

based on another ground within the power of the appellate court to formulate.” 

Chae-Sik Lee v. Kennedy, 294 F.2d 231, 234 (D.C. Cir. 1961) (internal quotations 

omitted); see also Shea v. Director, Office of Workers’ Comp. Programs, 929 F.2d

 12 Even though EPA has now approved the South Coast Air Basin attainment 

demonstration for PM2.5, which is part of the 2007 AQMP, the proper AQMP 

remains the one with a PM10 attainment demonstration, which is the 2003 AQMP. 

See Approval of Air Quality Implementation Plans; California; South Coast; 

Attainment Plan for 1997 PM[2.5] Standards, 76 Fed. Reg. 69,928 (Nov. 9, 2011). 

PM2.5 is not at issue here. The District’s PM2.5 new source review rule, Rule 1325, 

does not require any offsets until the source has a potential to emit of 100 tons per 

year of PM2.5. District’s RJN, Exhibit 10 (Rule 1325(a), (b)(5)). Sentinel’s 

required PM10 offsets are 118,120 pounds per year, which is only approximately 59 

tons per year (118,000 divided by 2,000). PER000026.

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736, 739 n.4 (D.C. Cir. 1991). The Ninth Circuit has also followed the principle 

that a decision need not be judged on the grounds stated by the agency where the 

case involves a question of law. Ry. Labor Execs.’ Ass’n v. Interstate Commerce 

Comm., 784 F.2d 959, 969 (9th Cir. 1986). 

In the present case, the Court of Appeals may easily determine from the 

proposed and final rulemaking Federal Register notices and the Technical Support 

Document that the proper attainment demonstration is the 2003 PM10 SIP, which 

contains a 1997 base year. The determination of which attainment demonstration 

is proper is a question of law. And, the factual evidence establishing that none of 

the offsets transferred to the AB 1318 Tracking System derive from shutdowns 

occurring before 1999 is uncontroverted and is thus “within the power of the 

appellate court to formulate.” Chae-Sik Lee, 294 F.3d at 234; PER00020 (the 

emission reductions in the AB 1318 Tracking System were identified from 

reductions occurring between 1999 and 2008). Accordingly, there is no reason to 

remand to EPA to simply repeat the foregoing discussion. The Court should 

uphold the agency’s decision that the District complies with the regulation cited by 

Petitioners, even though it is on a different ground than the one cited by the 

agency.

While EPA’s brief indicates that it may conclude that the correct plan is the 

2003 PM10 SIP, but that it is “not attempting to prejudge the issue,” EPA makes 

clear, regardless of whether the proper plan is the 2003 PM10 SIP or the 2007 

AQMP, that the offsets transferred to Sentinel meet EPA’s base year requirements. 

Respts’ Br. at 34-41. Thus, the rulemaking supports EPA’s determination that the 

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credits in the AB 1318 Tracking System are “creditable” and there is no reason to 

remand to EPA to reconsider the base year issue. The District must therefore 

respectfully disagree with EPA regarding the proper outcome of this case. This 

court should uphold EPA’s decision in its entirety without any need for remand.

ii. This Court Should Not Consider Petitioners’ Arguments 

Based on Specific Tables and Sentences in the 2007 AQMP

and Alleged for the First Time in Their Opening Brief

The District submits the following discussion of the 2007 AQMP in the 

event the Court considers Petitioners’ detailed comments on the content of the 

2007 AQMP. However, the Court should not consider Petitioners’ comments, 

since they were never made to the agency. 

Courts should not consider arguments that were not “initially present[ed] to 

the agency during the rulemaking.” Appalachian Power Co. v. EPA, 251 F.3d 

1026, 1036 (D.C. Cir. 2001). As explained by the court in Appalachian Power 

Co., “[a]n objection must be made with sufficient specificity reasonably to alert 

the agency” during the rulemaking, and “[g]eneralized objections to agency action 

or objections raised at the wrong time or in the wrong docket will not do.” Id. 

(citations omitted) (emphasis added). Accordingly, “claims raised at the 

administrative appeal and in the federal complaint must be so similar that the 

district court can ascertain that the agency was on notice of, and had an opportunity

to consider and decide, the same claims now raised in federal court.” Silverton 

Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006). 

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In their brief, Petitioners argue for the first time that specific tables in the 

2007 AQMP, Appendix III, exclude pre-base year offsets from the emissions 

inventory. Petitioners’ comment letter cursorily discusses the issue of pre-base 

year offsets and fails to provide sufficient detail. Petitioners state: “A review of 

the 2007 AQMP reveals that the emissions reductions pre-dating 2002 have not 

been included in the emissions inventory and therefore violate 40 C.F.R. 

§51.165(a)(3)(C)(1)(ii).” SER0016. The citations in the comment letter lack 

specificity, instead referring generally to the entire AQMP Appendix III, Appendix 

V, and to part of the main volume. Id. In the proceedings before EPA, Petitioners 

never cited to the specific portions of Appendix III which they now claim support 

their argument. See Pet’rs’ Br. at 28 (citing Tables 2-11 and 2-12 of Appendix III 

to the AQMP, and specific sentences related thereto).

In a similar situation, the Court of Appeals held that petitioners’ generic 

citation to “CAA Section 202” did not alert EPA that they were relying specifically 

on Section 202(b)(1)(C), which they failed to cite in their comments. Motor & 

Equip. Mfrs. Ass’n. v. Nichols, 142 F.3d 449, 462 (D.C. Cir. 1998). The Court 

held that the petitioners’ argument could not be raised in judicial review for the 

first time. Id. Likewise, in this case, Petitioners’ comment letter fails to provide 

any notice that they are relying on specific tables and sentences contained in 

Appendix III. SER0015-16. Because Petitioners never made their specific 

argument to EPA, EPA can hardly be faulted for not addressing in the rulemaking 

the specific sentences and tables that are cited for the first time in Petitioners’ 

Opening Brief. Pet’rs’ Br. at 28. Because Petitioners have deprived the Court of 

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“the benefit of the agency’s expertise,” the Court should not consider Petitioners’ 

newly-raised arguments. Motor & Equp. Mfrs. Ass’n, 142 F.3d at 462.

iii. Even if Considered, Petitioners’ Arguments Regarding the 

2007 AQMP Must Fail Because They Misinterpret the 

Document

Petitioners have lifted select sentences and tables out of context to argue that 

the AQMP inventory “explicitly excluded” pre-2003 emission reductions. To 

support their contention, they cite an excerpt from the 2007 AQMP that states that 

“the annual credits to the NSR account are sufficient for the debits [so] that there is 

no need to have debits from the pre-2002 credits. Therefore, no addition to the 

current baseline inventory is needed for this category.” SER0121, Pet’rs’ Br. at

27-28. Petitioners misconstrue the AQMP and its explicit inclusion of pre-base 

year offsets in the plan’s growth projections. 

As EPA has explained, the 2007 AQMP already includes pre-base year 

offsets, to the extent they are expected to be needed, as growth in Table 2-8 of 

Appendix III. SER0116; Respts’ Br. at 39-41. This is exactly what is required by 

EPA’s regulation codified at 40 C.F.R. § 51.165(a)(3)(ii)(C)(1)(ii). EPA has 

explained that its regulation, which allows the use of pre-base year offsets if they 

are explicitly included in the projected inventory, is consistent with its policy 

encouraging the use of “banked” ERCs as explained in EPA’s “General Preamble.”

72 Fed. Reg. 31,727, 31,742 (June 8, 2007). The General Preamble states that such 

credits “must be treated as growth...to the extent that the State expects that such 

credits will be used....” 57 Fed. Reg. 13,498, 13,508 (April 16, 1992). Therefore,

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if the emissions from pre-base year shutdowns are included as growth in future 

year inventories, then they may be used as offsets. As noted by EPA, “[t]here is no 

good rationale to support the removal of ERC[s] as a consequence to updating [the] 

inventory.” 72 Fed. Reg. at 31,741. The District followed EPA’s recommended

path by including the pre-base year offsets in its future year inventory as growth.

As stated in the 2007 AQMP, “future year baseline inventories already 

include growth based on SCAG projections in the absence of NSR constraints.” 

SER0123; see also Cal. Health & Safety Code §§ 40460, 40464 (noting that 

AQMP growth projections are based upon regional economic data provided by the 

SCAG). In fact, all of the growth from new and modified sources included in the 

AQMP growth projections must necessarily be supported by offsets occurring

before the base year of 2002 because offsets from facilities that were not shut

down until after the base year were assumed to still be operating and emitting 

during the base year. Therefore, those emissions from facilities that shut down 

after the base year are already included in the base year inventory. If offsets are 

generated from sources that shut down after the base year, the most they can do is 

replace themselves; no growth would occur beyond what already existed in the 

base year. Accordingly, any offsets used to support growth must necessarily be 

pre-base year offsets. Thus, the 2007 AQMP explicitly includes pre-base year 

offsets in the future year inventory as growth. The maximum amount of growth is 

shown in Table 2-8. SER0116. 

As a further check to make sure the growth projections were sufficient to 

account for the possible future use of offsets, the District conducted an additional 

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35

analysis looking at the past history of the use of private-market ERCs and internal 

account offsets.13

Although EPA’s first opportunity to respond to Petitioners’ specific 

comments on the 2007 AQMP was in their Respondents’ Brief, EPA’s response to 

Petitioners’ generic comment in the rulemaking was correct. EPA accurately 

described the District’s accounting for the use of offsets and its analysis of future 

demand for offsets that might go beyond the growth already accounted for in the 

The District compared the past use of private market ERCs with 

the past generation of ERCs. SER0121. The District concluded that 3.2 tons per 

day of pre-2002 volatile organic compounds (“VOC”) would be needed, if demand 

and supply were the same as it had been in the past. But, this 3.2 tons per day is 

less than the projected growth for point sources as shown in Table 2-8. SER0116

(growth for VOC point sources is 47 tons per day minus 35 tons per day, or 12 tons 

per day). Therefore, no additions to the inventory would be needed beyond what 

was already included as expected growth. The District similarly looked at past use 

of internal account offsets compared with past generation of such offsets and 

concluded that no additional pre-2002 ERCs would be needed. SER0122 (Table 2-

11). Simply put, the past historical usage was not as high as the projected growth. 

Therefore, no additions to the inventory would be needed because all reasonably 

expected use of pre-base year offsets was already included in projected growth.

 13 ERCs are issued to facilities that shut down or permanently reduced their 

emissions. District’s RJN, Exhibit 11 (Rule 1309). ERCs may be traded in the 

private market and ultimately submitted to the District to be used as offsets for 

future new or modified sources. Id.

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future year inventories. 76 Fed. Reg. 22,038, 22,042 (April 20, 2011). Consistent 

with EPA’s explanation in the rulemaking, the 2007 AQMP concluded that no 

“additions” to the existing inventories were needed because all potential use of prebase year offsets was already included as growth. The 2007 AQMP “accounts for 

growth from new and modified sources based on emissions offsets used and 

generated through AQMD’s New Source Review Program.” SER0119. And, 

since the 2007 AQMP “future year baseline inventories already include emissions 

growth based on SCAG projections in the absence of NSR constraints, adding 

additional related emissions growth to the baseline inventories would be 

overstating potential growth.” SER0123. 

Should there be any remaining doubt that pre-base year credits are clearly 

included in the 2007 AQMP, the District notes that one ton per day of pre-2003

offsets for each pollutant is also “explicitly” included in the inventory as a “set 

aside.” Id. (“The 2007 AQMP “includes a set aside account of one ton per day for 

each criteria pollutant for the Offset Budget. This line item is to account for 

emissions that may not be included in the AQMP baseline inventories.”) This set 

aside is expressly derived from pre-base year offsets in the District’s internal 

account. The AQMP explains “[t]he initial funding of the Offset Budget will be 

from expired minor source shutdown credits for the years 2000 through 2002.” Id.

There are more than enough offsets set aside in the Offset Budget to account for 

Sentinel’s demands. PER000026 (Sentinel only needs 118,120 lbs/yr of PM10 and 

13,928 lbs/yr of SOx and the Offset Budget includes 730,000 lbs/yr for each 

pollutant).

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Therefore, even if the 2007 AQMP is the proper AQMP for the analysis of 

pre-base year offsets, Petitioners’ claims regarding the “creditable” requirement 

must fail. And, if the Court accepts the District’s position that the proper AQMP is 

the 2003 PM10 SIP, the base year is 1997, and there are no pre-base year offsets 

transferred to Sentinel. Either way, the District has fully complied with EPA’s 

regulation regarding pre-base year offsets. 

iv. This Court Should Affirm EPA’s Decision Rather than 

Remanding it Without Vacature

As discussed by EPA, a federal agency may request a remand, without 

confessing error, in order to reconsider its previous position. SKF USA Inc. v. 

United States, 254 F.3d. 1022, 1029 (Fed. Cir. 2001). However, in such a case, the 

“reviewing court has discretion over whether to remand.” Id. We agree that 

remand would be appropriate where the agency has “doubts about the correctness 

of its decision.” Id. Here, EPA has expressed no such doubts. To the contrary, 

EPA has made it quite clear that it continues to believe its decision was correct. 

See Respts’ Br. at 34-41 (“the ‘base year’ requirement of [EPA’s regulation] would 

be satisfied when analyzed in reference to the 2003 AQMP” (at 37), and “the 

requirements of [EPA’s regulation] are satisfied when the 2007 AQMP is 

considered as the relevant attainment demonstration” (at 41)).

As noted above, this Court should hold that Petitioners forfeited their 

specific arguments regarding the 2007 AQMP by failing to cite them in their 

comments to EPA. If this Court agrees, Petitioners must lose on their claim, and 

there is no reason to remand. Moreover, EPA has already explained in its brief that 

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if the proper plan is the 2007 AQMP, Petitioners must lose because the offsets 

comply with the regulation. Respts’ Br. at 37-41. EPA merely seeks a remand in 

order to consider yet another reason why Petitioners should lose – Petitioners

likely cited the incorrect AQMP. While that very well may be true, it is not a 

sufficient basis for remanding the case, thus causing unwarranted delay which 

might potentially harm the Sentinel Project. This Court may and should simply 

affirm EPA’s decision in its entirety, noting that EPA now believes that the proper 

plan for comparison would likely be the 2003 PM10 SIP, but that this does not in 

any way change the correctness of EPA’s decision.

As demonstrated above, regardless of whether the proper plan for deriving 

the base year is the 2003 PM10 SIP or the 2007 AQMP, the offsets transferred to 

Sentinel comply with the EPA regulation codified at 40 C.F.R. 

§51.165(a)(3)(ii)(C)(1)(ii).

///

///

///

///

///

///

///

///

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39

CONCLUSION

For the foregoing reasons, the District respectfully requests that the Court 

affirm EPA’s final rule in its entirety.

DATED: January 27, 2012 KURT R. WIESE, General Counsel

BARBARA BAIRD, District Counsel

LAUREN B. NEVITT, Deputy District Counsel

SOUTH COAST AIR QUALITY 

MANAGEMENT DISTRICT

s/ Lauren B. Nevitt

Lauren B. Nevitt, Deputy District Counsel

South Coast Air Quality Management District

21865 Copley Drive

Diamond Bar, CA 91765

Phone: (909) 396-3458

Facsimile: (909) 396-2961

E-mail: lnevitt@aqmd.gov

Counsel for Respondent-Intervenor

South Coast Air Quality Management District

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STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, Respondent-Intervenor South 

Coast Air Quality Management District is not aware of any related cases currently 

pending before this Court.

DATED: January 27, 2012

s/ Lauren B. Nevitt

Lauren B. Nevitt, Deputy District Counsel

South Coast Air Quality Management District

21865 Copley Drive

Diamond Bar, CA 91765

Phone: (909) 396-3458

Facsimile: (909) 396-2961

E-mail: lnevitt@aqmd.gov

Counsel for Respondent-Intervenor

South Coast Air Quality Management District

Case: 11-71127 01/27/2012 ID: 8048208 DktEntry: 52 Page: 49 of 51
CERTIFICATE OF COMPLIANCE

REGARDING WORD LIMITATION

Pursuant to Federal Rule of Appellate Procedure Rule 32(a)(7)(C), 

I certify that the attached BRIEF OF RESPONDENT-INTERVENOR SOUTH 

COAST AIR QUALITY MANAGEMENT DISTRICT is proportionately 

spaced, has a typeface of Times New Roman, 14 points, and contains 10, 321

words, including footnotes, but excluding this Certificate of Compliance, the 

Statement of Related Cases, the Corporation Disclosure Statement Under Rule 

26.1, the Table of Authorities, the Table of Contents, and the Certificate of 

Service. I have relied on Microsoft Word’s word count feature for the calculation.

DATED: January 27, 2012

s/ Lauren B. Nevitt

Lauren B. Nevitt, Deputy District Counsel

South Coast Air Quality

 Management District

21865 Copley Drive

Diamond Bar, CA 91765

Phone: (909) 396-3458

Facsimile: (909) 396-2961

E-mail: lnevitt@aqmd.gov

Counsel for Respondent-Intervenor

South Coast Air Quality Management District 

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CERTIFICATE OF SERVICE

I hereby certify that on January 27, 2012, I electronically filed the foregoing 

BRIEF OF RESPONDENT-INTERVENOR SOUTH COAST AIR QUALITY 

MANAGEMENT DISTRICT with the Clerk of the Court for the United States 

Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I 

certify that all participants in the case are registered CM/ECF users and that service 

will be accomplished by the appellate CM/ECF system to the following 

participants. 

Angela Johnson Meszaros

Law Offices of Angela Johnson Meszaros

1107 Fair Oaks Avenue, Suite 246

South Pasadena, CA 91030

ajm_law@sbcglobal.net

Attorney for Petitioner 

California Communities Against 

Toxics

Timothy R. Grabiel

15101 Tolman Drive

Whittier, CA 90064

tgrabiel@defenseterre.org

Shana Lazerow

Communities for a Better Environment

1904 Franklin Street, Suite 600

Oakland, CA 94612

slazerow@cbecal.org

Maya Golden-Krasner

6325 Pacific Boulevard, #300

Huntington Park, CA 90255

maya@cbecal.org

Attorney for Petitioner 

California Communities Against 

Toxics

Attorney for Petitioner 

Communities for a Better 

Environment

Attorney for Petitioner 

Communities for a Better 

Environment

Amy J. Dona

U.S. Department of Justice

Environment & Natural Resources Div.

P.O. Box 23986

Washington, D.C. 20026-3986

amy.dona@usdoj.gov

Joshua Bledsoe

Latham & Watkins LLP

650 Town Center Drive 20th Floor

Costa Mesa, CA 92626-1235

joshua.bledsoe@lw.com

Attorneys for Respondent U.S. 

Environmental Protection 

Agency

Attorney for Intervenor CPV 

Sentinel

s/ Lauren B Nevitt Lauren B. Nevitt

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