EXHIBIT 1:

EXHIBIT 2:

EXHIBIT 3:

EXHIBIT 4:

EXHIBIT 5:

EXHIBIT 6:

EXHIBIT 7:

EXHIBIT 8:

,,'.;

EXHIBITS

CaL. Code Regs. Tit. 13, § 1961.1

Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean Ai Act:

EP A Response to Comments, Volume 1

EP A Response to Petitions to Reconsider the Endangerment

and Cause or Contribute Findigs for Greenhouse Gases under

Section 202(a) of the Clean Air Act, Volume 3

EP A Response to Petitions to Reconsider the Endangerment

and Cause or Contribute Findings for Greenhouse Gases under

Section 202(a) of the Clean Air Act, Volume 2

Cliate Change Assessments: Review of the Processes

and Procedures of the IPCC (InterAcademy Council, 2010)

Endangerment and Cause or Contribute Findigs for

Greenhouse Gases Under Section 202(a) of the Clean Ai Act:

EP A Technical Support Document (December 7, 2009)

Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean Ai Act:

EP A Response to Comments, Volume 2

Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean Ai Act:

EP A Response to Comments, Volume 3

EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 1
EXHIBIT 9:

EXHIBIT 10:

EXHIBIT 11:

EXHIBIT 12:

EXHIBIT 13:

EXHIBIT 14:

EXHIBIT 15:

Light-Duty Vehicle Greenhouse Gas Emission Standards and

Corporate Average Fuel Economy Standards: EPA Response to

Comments Document for joint Rulemakig

45 Fed. Reg. 52,676 (Aug. 7, 1980)

Declaration of Jared R. Creason, EP A Office of Ai and Radiation

Declaration of Ronald C. Evans, EP A Office of Air and Radiation

Declaration of Gina McCarthy, EP A Assistant Admistrator for Ai

and Radiation

Letter from Texas to EPA (August 2,2010)

United States v. Cinergy Corp., Nos. 09-3351,09-3344,09-3350 (7th

Cir. Dec. 11,2009) Defendant-Appellants' Opening Brief

2 EPA Response to Stay Motion

Exhibits

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EXHIBIT 1

3 EPA Response to Stay Motion

Exhibits

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California Code of Regulations

.li:1 '* ~ ~~

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Page 1 of 14

California Office of

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Welcome to the online source for the

California Code of Regulations

13 CA ADC § 1961.1

§ 1961.1. Greenhouse Gas Exhaust Emission Standards and Test Procedures - 2009 and Subsequent

Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles.

Term .

13 CCR § 1961.1

Cal. Admin. Code tit. 13, § 1961.1

Barclays Official California Code of Regulations Currentness

Title 13. Motor Vehicles

Division 3. Air Resources Board

Chapter 1. Motor Vehicle Pollution Control Devices

..¡j Article 1. General Provisions (Refs & Annos)

i+§ 1961.1. Greenhouse Gas Exhaust Emission Standards and Test Procedures - 2009

and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles.

(a) Greenhouse Gas Emission Requirements. The greenhouse gas emission levels from new 2009 and

subsequent model year passenger cars, light-duty trucks, and medium-duty passenger vehicles shall not

exceed the following requirements. Light-duty trucks from 3751 Ibs. LVW - 8500 Ibs. GVW that are

certified to the Option 1 LEV II NOx Standard in section 1961(a)(1) are exempt from these greenhouse

gas emission requirements, however, passenger cars, light-duty trucks 0-3750 Ibs. LVW, and mediumduty passenger vehicles are not eligible for this exemption.

(1) Fleet Average Greenhouse Gas Requirements for Passenger Cars, Light-Duty Trucks, and MediumDuty Passenger Vehicles.

(A)(i) The fleet average greenhouse gas exhaust mass emission values from passenger cars, Iightduty trucks, and medium-duty passenger vehicles that are produced and delivered for sale in

California each model year by a large volume manufacturer shall not exceed:

FLEET AVERAGE GREENHOUSE GAS EXHAUST MASS EMISSION REQUIREMENTS FOR PASSENGER CAR,

LIGHT-DUTY TRUCK, AND MEDIUM-DUTY PASSENGER VEHICLE WEIGHT CLASSES1

(4,000 mile Durability Vehicle Basis)

Fleet Average Greenhouse Gas Emissions

(grams per mile CO2 - equivalent

Model Year

2009

2010

2011

2012

2013

2014

2015

2016+

All PCs;

LOTs 0-3750 Ibs.

LVW

323

301

267

233

227

222

213

205

LOTs

37511bs. LVW - 8500 Ibs.

GVW; MDPVs

439

420

390

361

355

350

341

332

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lEach manufacturer shall demonstrate compliance with these values in accordance with section

1961.(a)(1)(B) .

1. For each model year, a manufacturer must demonstrate compliance with the fleet

average requirements in this section 1961.1(a)(1)(A) based on one of two options

applicable throughout the model year, either:

Option 1: the total number of passenger cars, light-duty trucks, and medium-duty

passenger vehicles that are certified to the California exhaust emission standards in this

section 1961.1, and are produced and delivered for sale in California; or

Option 2: the total number of passenger cars, light-duty trucks, and medium-duty

passenger vehicles that are certified to the California exhaust emission standards in this

section 1961.1, and are produced and delivered for sale in California, the District of

Columbia, and all states that have adopted California's greenhouse gas emission

standards for that model year pursuant to Section 177 of the federal Clean Air Act (42

U.S.c. § 7507).

a. For the 2009 and 2010 model years, a manufacturer that selects compliance Option

2 must notify the Executive Officer of that selection, in writing, within 30 days of the

effective date of the amendments to this section (a)(l)(A)l or must comply with

Option 1.

b. For the 2011 and later model years, a manufacturer that selects compliance Option

2 must notify the Executive Officer of that selection, in writing, prior to the start of the

applicable model year or must comply with Option 1.

c. When a manufacturer is demonstrating compliance using Option 2 for a given model

year, the term "in California" as used in subsections 1961.1(a)(1)(B)3. and 1961.1(b)

means California, the District of Columbia, and all states that have adopted

California's greenhouse gas emission standards for that model year pursuant to

Section 177 of the federal Clean Air Act (42 U.S.c. § 7507).

d. A manufacturer that selects compliance Option 2 must provide to the Executive

Officer separate values for the number of vehicles produced and delivered for sale in

the District of Columbia and for each individual state within the average.

(A)(ii) For the 2012 through 2016 model years, a manufacturer may elect to demonstrate

compliance with this section 1961.1 by demonstrating compliance with the National greenhouse

gas program as follows:

1. A manufacturer that selects compliance with this option 1961.1(a)(1)(A)(ii) must notify

the Executive Officer of that selection, in writing, prior to the start of the applicable model

year or must comply with 1961.1(a)(1)(A)(i).

2. The manufacturer must submit to ARB a copy of the Model Year CAFE report that it

submitted to EPA as required under 40 CFR §86.1865-12 (as proposed at 74 Fed.Reg.

49454,49760 (September 28, 2009) and adopted by EPA on April 1, 2010, 75 Fed.Reg.

(insert page) (April (insert date), 2010), for demonstrating compliance with the National

greenhouse gas program and the EPA determination of compliance. These must be

submitted within 30 days of receipt of the EPA determination of compliance, for each

model year that a manufacturer selects compliance with this option 1961.1(a)(1)(A)(ii).

and

3. If a manufacturer has outstanding greenhouse gas debits at the end of the 2011 model

year, as calculated in accordance with 1961.1(b), the manufacturer must submit to the

Executive Officer a plan for offsetting all outstanding greenhouse gas debits by using

greenhouse gas credits earned under the National greenhouse gas program before

applying those credits to offset any National greenhouse as program debits. Upon

approval of the plan by the Executive Officer, the manufacturer may demonstrate

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compliance with this section 1961.1 by demonstrating compliance with the National

greenhouse gas program. Any California debits not offset by the end of the 2016 model

year National greenhouse gas program reporting period are subject to penalties as

provided in this Section 1961.1.

(B) Calculation of Fleet Average Greenhouse Gas Value.

1. Basic Calculation.

a. Option A: Each manufacturer shall calculate both a "city" grams per mile average CO2-

equivalent value for each GHG vehicle test group and a "highway" grams per mile average

CO2-equivalent value for each GHG vehicle test group, including vehicles certified in

accordance with section 1960.5 and vehicles certified in accordance with section 1961(a)

(14), using the following formula. Option B: For a manufacturer that elects to

demonstrate compliance with the greenhouse gas requirements using CAFE data, "GHG

vehicle test group" shall mean "subconfiguration" in this subsection 1961.1(a)(1)(B)1.a.

Greenhouse Gas emissions used for the "city" CO2-equivalent value calculation shall be

measured using the "FTP" test cycle (40 CFR, Part 86, Subpart B). Greenhouse Gas

emissions used for the "highway" CO2-equivalent value calculation shall be based on

emissions measured using the Highway Test Procedures.

CO2-Equivalent Value = CO2 + 296 x N2 0 + 23 x CH4 - A/C Direct Emissions Allowance -

A/C Indirect Emissions Allowance

A manufacturer may use N20 = 0.006 grams per mile in lieu of measuring N20

exhaust emissions. A manufacturer that elects to use CAFE data to demonstrate

compliance with the greenhouse requirements may substitute the term 1.9 CO2-

equivalent grams per mile for the terms "296 x N20 + 23 x CH4" in this equation.

b. AIC Direct Emissions Allowance. A manufacturer may use the follOWing A/C Direct

Emission Allowances, upon approval of the Executive Officer, if that manufacturer

demonstrates that the follOWing requirements are met. Such demonstration shall include

specifications of the components used and an engineering evaluation that verifies the

estimated lifetime emissions from the components and the system. A manufacturer shall

also provide confirmation that the number of fittings and joints has been minimized and

components have been optimized to minimize leakage. No A/C Direct Emissions Allowance

is permitted if the following requirements are not met.

i. A "low-leak air conditioning system" shall be defined as one that meets all of the

following criteria:

A. All pipe and hose connections are equipped with multiple o-rings, seal washers,

or metal gaskets only (e.g., no single o-rings);

B. All hoses in contact with the refrigerant must be ultra-low permeability barrier

or veneer hose on both the high-pressure and the low-pressure sides of the

system (e.g., no rubber hoses); and

C. Only multiple-lip compressor shaft seals shall be used (with either compressor

body o-rings or gaskets).

ii. For an air conditioning system that uses HFC-134a as the refrigerant:

A. An A/C Direct Emissions Allowance of 3.0 CO2-equivalent grams per mile shall

apply if the system meets the criteria for a "low-leak air conditioning system."

B. An A/C Direct Emissions Allowance of 3.0 CO2-equivalent grams per mile shall

apply if the manufacturer demonstrates alternative technology that achieves equal

EPA Response to Stay Motion

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or lower direct emissions than a "low-leak air conditioning system."

C. An A/C Direct Emissions Allowance greater than 3.0 CO2-equivalent grams per

mile may apply for an air conditioning system that reduces refrigerant leakage

further than would be obtained from a "low-leak air conditioning system." A

maximum A/C Direct Emissions Allowance of 6.0 CO2-equivalent grams per mile

may be earned for an air conditioning system that has 100 percent containment of

refrigerant during "normal operation." To obtain an A/C Direct Emissions

Allowance greater than 3.0 CO2-equivalent grams per mile, the manufacturer

must provide an engineering evaluation that supports the allowance requested.

iii. For an air conditioning system that uses HFC-152a, CO2 refrigerant, or any

refrigerant with a GWP of 150 or less: An A/C Direct Emissions Allowance shall be

calculated using the follOWing formula:

A/C Direct Emissions Allowance = A - (B x C)

where: A = 9 CO2-equivalent grams per mile (the lifetime vehicle emissions expected

from an air conditioning system that uses refrigerant HFC-134a);

!_~__________ I

Image 1 (2.7" X .43") Available for Offline Print.

where: B is the lifetime vehicle emissions expected from an air conditioning system

that uses a refrigerant with a GWP of 150 or less, and

"GWP" means the GWP of this refrigerant; and

C = 1, except for an air conditioning system that meets the criteria of a "low-leak air

conditioning system."

For an air conditioning system that meets or exceeds the criteria of a "low-leak air

conditioning system," the following formula shall apply:

C = 1 - (0.12 x credit)

where: "credit" equals 3.0 CO2-equivalent grams per mile for a "low-leak air

conditioning system" that meets the criteria of section 1961.1(a)(1)(B)1.b.i., or

"credit" equals a value greater than 3.0 CO2-equivalent grams per mile for an air

conditioning system that reduces refrigerant leakage further than would be obtained

from a "low-leak air conditioning system." A maximum credit of 6.0 CO2-equivalent

grams per mile may be earned for an air conditioning system that has 100 percent

containment of refrigerant during normal operation. To obtain a credit greater than

3.0 CO2-equivalent grams per mile, the manufacturer must provide an engineering

evaluation that supports the credit requested.

iv. A manufacturer that elects to use CAFE Program emissions data to demonstrate

compliance with the greenhouse requirements shall calculate the A/C Indirect

Emissions Allowance for each Vehi.cle Configuration by calculating the A/C Indirect

Emissions Allowance for each air conditioning system used in that Vehicle

Configuration and calculating a sales-weighted average for that Vehicle Configuration.

c. A/C Indirect Emissions Allowance. A manufacturer may use the following A/C Indirect

Emissions Allowances, upon approval of the Executive Officer, if the manufacturer

demonstrates using data or an engineering evaluation that the air conditioning system

meets the following requirements. A manufacturer may use the following A/C Indirect

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Emissions Allowances for other technologies, upon approval of the Executive Officer, if

that manufacturer demonstrates that the air conditioning system achieves equal or

greater CO2-equivalent grams per mile emissions reductions.

i. An "A/C system with reduced indirect emissions" shall be defined as one that meets

all of the following criteria:

A. Has managed outside and recirculated air balance to achieve comfort,

demisting, and safety requirements, based on such factors as temperature,

humidity, pressure, and level of fresh air in the passenger compartment to

minimize compressor usage;

B. Is optimized for energy efficiency by utilizing state-of-the-art high efficiency

evaporators, condensors, and other components; and

C. Has an externally controlled compressor (such as an externally controlled

variable displacement or variable speed compressor or an externally controlled

fully cycling fixed displacement compressor) that adjusts evaporative temperature

to minimize the necessity of reheating cold air to satisfy occupant comfort.

ii. For an A/C system that meets all of the criteria for an "A/C system with reduced

indirect emissions," the allowance shall be calculated using the following emission

factors, up to a maximum allowance of 9.0 CO2-equivalent grams per mile if the

system has one evaporator and up to a maximum allowance of 11.0 CO2-equivalent

grams per mile if the system has two evaporators:

A. 5.0 CO2-equivalent grams per mile per 100 cc of maximum compressor

displacement for a system that does not use CO2 as the refrigerant

B. 27.5 CO2-equivalent grams per mile per 100 cc of maximum compressor

displacement for a system that uses CO2 as the refrigerant

iii. For an air conditioning system equipped with a refrigerant having a GWP of 150 or

less, the allowance shall be calculated using the following emission factors, up to a

maximum allowance of 0.5 CO2-equivalent grams per mile:

A. 0.2 CO2-equivalent grams per mile per 100cc of maximum compressor

displacement for a system that does not use CO2 as the refrigerant and

B. 1.1 CO2-equivalent grams per mile per 100cc of maximum compressor

displacement for a system that uses CO2 as the refrigerant.

iv. A manufacturer that elects to use CAFE Program emissions data to demonstrate

compliance with the greenhouse requirements shall calculate the A/C Indirect

Emissions Allowance for each Vehicle Configuration by calculating the A/C Indirect

Emissions Allowance for each air conditioning system used in that Vehicle

Configuration and calculating a sales-weighted average for that Vehicle Configuration.

d. Upstream Greenhouse Gas Emission Adjustment Factors for Alternative Fuel Vehicles. A

grams per mile average CO2-equivalent value for each GHG vehicle test group certifying

on a fuel other than conventional gasoline, including vehicles certified in accordance with

section 1960.5 and vehicles certified in accordance with section 1961(a)(14), shall be

calculated as follows:

(C02 + A/C Indirect Emissions) x (Fuel Adjustment Factor) + 296 x N20 + 23 x CH4 + A/C Direct

Emissions

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where:

A/C Indirect Emissions = A - B

where: "A" represents the indirect emissions associated with an A/C system that does not

incorporate any of the A/C improvements described in section 1961.1(a)(1)(B)1.c. A is

determined by the following emission factors, with a maximum value of 17.0 CO2-

equivalent grams per mile for a system that has one evaporator and a maximum value of

21.0 cO2-equivalent grams per mile for a system that has two evaporators.

A = 9.6 CO2-equivalent grams per mile per 100cc of maximum compressor

displacement for an A/C system that does not use CO2 as the refrigerant or

A = 52.8 co2-equivalent grams per mile per 100cc of maximum compressor

displacement for an A/C system that uses CO2 as the refrigerant.

B = A/C Indirect Emissions Allowance as calculated per section 1961.1(a)(1)(B)1.c.

A/C Direct Emissions = 9 CO2 - equivalent grams per mile - A/C Direct Emissions

Allowance as calculated per section 1961.1(a)(1)(B)1.b.

The Fuel Adjustment Factors are:

Fuel

Natural Gas

LPG

E85

Fuel Adjustment Factor

1.03

0.89

0.74

e. Calculation of CO2-Equivalent Emissions for Hydrogen Internal Combustion Engine

Vehicles and for Electric and Hydrogen ZEVs. The grams per mile average Co2-equivalent

value for each GHG vehicle test group certifying to lEV standards, including vehicles

certified in accordance with section 1960.5 and vehicles certified in accordance with

section 1961(a)(14), shall be:

A/C Direct Emissions + Upstream Emissions Factor

where: A/C Direct Emissions = 9 CO2-equivalent grams per mile - A/C Direct Emissions

Allowance as calculated per section 1961.1(a)(1)(B)1.b.

The Upstream Emissions Factors are:

Vehicle Type

Electric lEV

Hydrogen Internal Combustion Engine

Vehicle

Hydrogen lEV

Upstream Emissions Factorl

(C02-equivalent g/mi)

130

290

210

lThe Executive Officer may approve use of a lower upstream emissions factor if a

manufacturer demonstrates the appropriateness of the lower value by providing

information that includes, but is not limited to, the percentage of hydrogen fuel or the

percentage of electricity produced for sale in California using a "renewable energy

resource."

2. Calculation of Greenhouse Gas Values for Bi-Fuel Vehicles, Fuel-Flexible Vehicles, Dual-Fuel

Vehicles, and Grid-connected Hybrid Electric Vehicles. For bi-fuel, fuel-flexible, dual-fuel, and

grid-connected hybrid, electric vehicles, a manufacturer shall calculate a grams per mile

EPA Response to Stay Motion

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average co2-equivalent value for each GHG vehicle test group, in accordance with section

1961.1(a)(1)(B)1., based on exhaust mass emission tests when the vehicle is operating on

gasoline.

a. Optional Alternative Compliance Mechanisms. Beginning with the 2010 model year, a

manufacturer that demonstrates that a bi-fuel, fuel-flexible, dual-fuel, or grid-connected

hybrid electric GHG vehicle test group will be operated in use in California on the

alternative fuel shall be eligible to certify those vehicles using this optional alternative

compliance procedure, upon approval of the Executive Officer.

i. To demonstrate that bi-fuel, fuel-flexible, dual-fuel, or grid-connected hybrid electric

vehicles within a GHG vehicle test group will be operated in use in California on the

alternative fuel, the manufacturer shall provide data that shows the previous model

year sales of such vehicles to fleets that provide the alternative fuel on-site or, for

grid-connected hybrid electric vehicles, to end users with the capability to recharge

the vehicle on-site. This data shall include both the total number of vehicles sales that

were made to such fleets or end users with the capability to recharge the vehicle onsite and as the percentage of total GHG vehicle test group sales. The manufacturer

shall also provide data demonstrating the percentage of total vehicle miles traveled by

the bi-fuel, fuel-flexible, dual-fuel, or grid-connected hybrid electric vehicles sold to

each fleet or to end users with the capability to recharge the vehicle on-site in the

previous model year using the alternative fuel and using gasoline.

ii. For each GHG vehicle test group that receives approval by the Executive Officer

under section 1961.1(a)(1)(B)2.a.i., a grams per mile COi~equivalent value shall be

calculated as follows:

CO2-equivalent value = (A x E x B xC) + ((1 - (A x E x B)) x D)

where: A = the percentage of previous model year vehicles within a GHG vehicle test

group that were operated in use in California on the alternative fuel during the

previous calendar year;

B = the percentage of miles traveled by "A" during the previous calendar year;

C = the CO2-equivalent value for the GHG vehicle test group, as calculated in

section 1961.1(a)(1)(B)1, when tested using the alternative fuel;

D = the CO2-equivalent value for the GHG vehicle test group, as calculated in

section 1961.1(a)(1)(B)l, when tested using gasoline; and

E = 0.9 for grid-connected hybrid electric vehicles or

E = 1 for bi-fuel, fuel-flexible, and dual-fuel vehicles.

The Executive Officer may approve use of a higher value for "E" for a gridconnected hybrid electric vehicle GHG vehicle test group if a manufacturer

demonstrates that the vehicles can reasonably be. expected to maintain more than

90 percent of their original battery capacity over a 200,000 mile vehicle lifetime.

The manufacturer may demonstrate the appropriateness of a higher value either

by providing data from real world vehicle operation; or by showing that these

vehicles are equipped with batteries that do not lose energy storage capacity until

after 100,000 miles; or by offering 10 year/150,OOO mile warranties on the

batteries.

iii. For the first model year in which a grid-connected hybrid electric vehicle model is

certified for sale in California, the manufacturer may estimate the sales and

percentage of total vehicle miles traveled information requested in section 1961.1(a)

(1)(B)2.a.i. in lieu of providing actual data, and provide final sales data and data

demonstrating the percentage of total vehicle miles traveled using electricity by no

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later than March 1 of the calendar year following the close of the model year.

3. Calculation of Fleet A verage Greenhouse Gas Values.

a. Each manufacturer's PC and LDT1 fleet average Greenhouse Gas value for the total

number of PCs and LDT1s produced and delivered for sale in California, including vehicles

certified in accordance with section 1960.5 and vehicles certified in accordance with

section 1961(a)(14), shall be calculated as follows:

(0.55 x (~~SIGMA;:;: City Test Group Greenhouse Gas Values) + 0.45 x (~~SIGMA;:;: Highway Test

Group Greenhouse Gas Values)) / Total Number of PCs and LDTls Produced, Including ZEVs and HEVs

where: City Test Group Greenhouse Gas Value = ((Total Number of Vehicles in a Test

Group - ~ ~SIGMA;:;: Number of Vehicles in Optional GHG Test Vehicle Configurations) x

"worst-case" calculated cO2-equivalent value + ~~SIGMA;:;: (Number of vehicles in

Optional GHG Test Vehicle Configurations x applicable calculated CO2-equivalent value))

measured using the FTP test cycle; and

Highway Test Group Greenhouse Gas Value = ((Total Number of Vehicles in a Test Group

- ~ ~SIGMA;:;: (Number of Vehicles in Optional GHG Test Vehicle Configurations) x

"worst-case" calculated CO2-equivalent value + ~~SIGMA;:;: (Number of vehicles in

Optional GHG Test Vehicle Configurations x applicable calculated CO2-equivalent value))

measured using the Highway Test Procedures.

b. Each manufacturer's LDT2 and MDPV fleet average Greenhouse Gas value for the total

number of LDT2s and MDPVs produced and delivered for sale in California, including

vehicles certified in accordance with section 1960.5 and vehicles certified in accordance

with section 1961(a)(14), shall be calculated as follows:

(0.55 x (~~SIGMA;:;: City Test Group Greenhouse Gas Values) + 0.45 x (~~SIGMA;:;: Highway Test

Group Greenhouse Gas Values)) / Total Number of LDT2s and MDPVs Produced, Including ZEVs and HEVs

where: City Test Group Greenhouse Gas Value = ((Total Number of Vehicles in a Test

Group - ~ ~SIGMA;:;: Number of Vehicles in Optional GHG Test Vehicle Configurations) x

"worst-case" calculated CO2-equivalent value + ~~SIGMA;:;: (Number of vehicles in

Optional GHG Test Vehicle Configurations x applicable calculated cO2-equivalent value))

measured using the FTP test cycle; and

Highway Test Group Greenhouse Gas Value = ((Total Number of Vehicles in a Test Group

- ~ ~SIGMA;:;: Number of Vehicles in Optional GHG Test Vehicle Configurations) x "worstcase" calculated CO2-equivalent value + ~~SIGMA;:;: (Number of vehicles in Optional

GHG Test Vehicle Configurations x applicable calculated CO2-equivalent value)) measured

using the Highway Test Procedures.

(C) Requirements for Intermediate Volume Manufacturers.

1. Before the 2016 model year, compliance with this section 1961.1 shall be waived for

intermediate volume manufacturers.

2. For each intermediate volume manufacturer, the manufacturer's baseline fleet average

greenhouse gas value for PCs and LDT1s and baseline fleet average greenhouse gas value for

LDT2s and MDPVs shall be calculated, in accordance with section 1961.1(a)(1)(B) using its

2002 model year fleet.

3. In 2016 and subsequent model years, an intermediate volume manufacturer shall either:

a. not exceed a fleet average greenhouse gas emissions value of 233 g/mi for PCs and

LDTls and 361 g/mi for LDT2s and MDPVs, or

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b. not exceed a fleet average greenhouse gas value of 0.75 times the baseline fleet.

average greenhouse gas value for PCs and LDT1s and 0.82 times the baseline fleet

average greenhouse gas value for LDT2s and MDPVs, as calculated in section 1961.1(a)

(1)(C)2.

4. If a manufacturer's average annual California sales exceed 60,000 units of new PCs, LDTs,

MDVs and heavy-duty engines based on the average number of vehicles sold for the three

previous consecutive model years, the manufacturer shall no longer be treated as a

intermediate volume manufacturer and shall comply with the fleet average requirements

applicable to large volume manufacturers as specified in section 1961. l(a)(l) beginning with

the fourth model year after the last of the three consecutive model years.

5. If a manufacturer's average annual California sales fall below 60,001 units of new PCs,

LDTs, MDVs and heavy-duty engines based on the average number of vehicles sold for the

three previous consecutive model years, the manufacturer shall be treated as a intermediate

volume manufacturer and shall be subject to the requirements for intermediate volume

manufacturers beginning with the next model year.

(D) Requirements for Small Volume Manufacturers and Independent Low Volume Manufacturers.

1. Before the 2016 model year, compliance with this section 1961.1 shall be waived for small

volume manufacturers and independent low volume manufacturers.

2. At the beginning of the 2013 model year, each small volume manufacturer and

independent low volume manufacturer shall identify all 2012 model year vehicle models,

certified by a large volume manufacturer that are comparable to that small volume

manufacturer or independent low volume manufacturer's 2016 model year vehicle models,

based on horsepower and horsepower to weight ratio. The small volume manufacturer and

independent low volume manufacturer shall demonstrate to the Executive Officer the

appropriateness of each comparable vehicle model selected. Upon approval of the Executive

Officer, s/he shall provide to the small volume manufacturer and to the independent low

volume manufacturer the CO2-equivalent value for each 2012 model year vehicle model that

is approved. The small volume manufacturer and independent low volume manufacturer shall

calculate an average greenhouse gas emissions value for each its greenhouse gas vehicle test

groups based on the CO2-equivalent values provided by the Executive Officer.

3. In the 2016 and subsequent model years, a small volume manufacturer and an

independent low volume manufacturer shall either:

a. not exceed the fleet average greenhouse gas emissions value calculated for each GHG

vehicle test group for which a comparable vehicle is sold by a large volume manufacturer,

in accordance with section 1961.1(a)(1)(D)2; or

b. not exceed a fleet average greenhouse gas emissions value of 233 g/mi for PCs and

LDTls and 361 g/mi for LDT2s and MDPVs; or

c. upon approval of the Executive Officer, if a small volume manufacturer demonstrates a

vehicle model uses an engine, transmission, and emission control system that is identical

to a configuration certified for sale in California by a large volume manufacturer, those

small volume manufacturer vehicle models are exempt from meeting the requirements in

paragraphs 3.a. and b. of this section.

4. If a manufacturer's average annual California sales exceed 4,500 units of new PCs, LDTs,

MDVs and heavy-duty engines based on the average number of vehicles sold for the three

previous consecutive model years, the manufacturer shall no longer be treated as a small

volume manufacturer and shall comply with the fleet average requirements applicable to

larger volume manufacturers as specified in section 1961.1(a)(1) beginning with the fourth

model year after the last of the three consecutive model years.

5. If a manufacturer's average annual California sales exceed 10,000 units of new PCs, LDTs,

MDVs and heavy-duty engines based on the average number of vehicles sold for the three

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previous consecutive model years, the manufacturer shall no longer be treated as an

independent low volume manufacturer and shall comply with the fleet average requirements

applicable to larger volume manufacturers as specified in section 1961.1(a)(1) beginning with

the fourth model year after the last of the three consecutive model years.

6. If a manufacturer's average annual California sales fall below 4,501 units of new PCs, LDTs,

MDVs and heavy-duty engines based on the average number of vehicles sold for the three

previous consecutive model years, the manufacturer shall be treated as a small volume

manufacturer and shall be subject to the requirements for small volume manufacturers

beginning with the next model year.

(b) Calculation of Greenhouse Gas Credits/Debits.

(1) Calculation of Greenhouse Gas Credits for Passenger Cars, Light-Duty Trucks, and Medium-Duty

Passenger Vehicles.

(A) In the 2000 through 2008 model years, a manufacturer that achieves fleet average

Greenhouse Gas values lower than the fleet average Greenhouse Gas requirement applicable to

the 2012 model year shall receive credits for each model year in units of g/mi determined as:

((Fleet Average Greenhouse Gas Requirement for the 2012 model year) - (Manufacturer's Fleet Average

Greenhouse Gas Value)) x (Total No. of Vehicles Produced and Delivered for Sale in California, Including

ZEVs and HEVs).

(B) In 2009 and subsequent model years, a manufacturer that achieves fleet average Greenhouse

Gas values lower than the fleet average Greenhouse Gas requirementfor the corresponding model

year shall receive credits in units of g/mi Greenhouse Gas determined as:

((Fleet Average Greenhouse Gas Requirement) - (Manufacturer's Fleet Average Greenhouse Gas Value)) x

(Total No. of Vehicles Produced and Delivered for Sale in California, Including ZEVs and HEVs).

(2) A manufacturer with 2009 and subsequent model year fleet average Greenhouse Gas values

greater than the fleet average requirement for the corresponding model year shall receive debits in

units of g/mi Greenhouse Gas equal to the amount of negative credits determined by the

aforementioned equation. For the 2009 and subsequent model years, the total g/mi Greenhouse Gas

credits or debits earned for PCs and LDTls and for LDT2s and MDPVs shall be summed together. The

resulting amount shall constitute the g/mi Greenhouse Gas credits or debits accrued by the

manufacturer for the model year.

(3) Procedure for Offsetting Greenhouse Gas Debits.

(A) A manufacturer shall equalize Greenhouse Gas emission debits by earning g/mi Greenhouse

Gas emission credits in an amount equal to the g/mi Greenhouse Gas debits, or by submitting a

commensurate amount of g/mi Greenhouse' Gas credits to the Executive Officer that were earned

previously or acquired from another manufacturer. A manufacturer shall equalize Greenhouse Gas

debits for PCs, LDTs, and MDPVs within five model years after they are earned. If 

emission debits

are not equalized within the specified time period, the manufacturer shall be subject to the Health

and Safety Code section 43211 civil penalty applicable to a manufacturer which sells a new motor

vehicle that does not meet the applicable emission standards adopted by the state board. The

cause of action shall be deemed to accrue when the emission debits are not equalized by the end

of the specified time period. For a manufacturer demonstrating compliance under Option 2 in

subsection 1961.1(a)(1)(A)1., the emission debits that are subject to a civil penalty under Health

anc; Safety Code section 43211 shall be calculated separately for California, the District of

Columbia, and each individual state that is included in the fleet average greenhouse gas

requirements in subsection 1961.1(a)(1)(A)1. These emission debits shall be calculated for each

individual state using the formula in subsections 1961.1(b)(1)(B) and 1961.1(b)(2), except that

the "Total No. of Vehicles Produced and Delivered for Sale in California, including ZEVs and HEVs"

shall be calculated separately for the District of Columbia and each individual state.

For the purposes of Health and Safety Code section 43211, the number of passenger cars and

LDTls not meeting the state board's emission standards shall be determined by dividing the total

amount of g/mi Greenhouse Gas emission debits for the model year calculated for California by

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the g/mi Greenhouse Gas fleet average requirement for PCs and LDTs 0-3750 Ibs. LVW applicable

for the model year in which the debits were first incurred. For the purposes of Health and Safety

Code section 43211, the number of LDT2s and MDPVs not meeting the state board's emission

standards shall be determined by dividing the total amount of g/mi Greenhouse Gas emission

debits for the model year calculated for California by the g/mi Greenhouse Gas fleet average

requirement for LDTs 37511bs. LVW - 8500 Ibs. GVW and MDPVs applicable for the model year in

which the debits were first incurred.

(B) Greenhouse Gas emission credits earned in the 2000 through 2008 model years shall be

treated as if they were earned in the 2011 model year and shall retain full value through the 2012

model year. Greenhouse Gas emission credits earned in the 2009 and subsequent model years

shall retain full value through the fifth model year after they are earned. The value of any credits

earned in the 2000 through 2008 model years that are not used to equalize debits accrued in the

2009 through 2012 model years shall be discounted by 50% at the beginning of the 2013 model

year, shall be discounted to 25% of its original value if not used by the beginning of the 2014

model year, and will have no value if not used by the beginning of the 2015 model year. Any

credits earned in the 2009 and subsequent model years that are not used by the end of the fifth

model year after they are accrued shall be discounted by 50% at the beginning of the sixth model

year after being earned, shall be discounted to 25% of its original value if not used by the

beginning of the seventh model year after being earned, and will have no value if not used by the

beginning of the eighth model year after being earned.

(c) Test Procedures. The certification requirements and test procedures for determining compliance with

the emission standards in this section are set forth in the "California Exhaust Emission Standards and Test

Procedures for 2001 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty

Vehicles," incorporated by reference in section 1961(d). In the case of hybrid electric vehicles and onboard fuel-fired heaters, the certification requirements and test procedures for determining compliance

with the emission standards in this section are set forth in the "California Exhaust Emission Standards and

Test Procedures for 2005 and Subsequent Model Zero-Emission Vehicles, and 2001 and Subsequent Model

Hybrid Electric Vehicles, in the Passenger Car, Light-Duty Truck and Medium-Duty Vehicle Classes,"

incorporated by reference in section 1962.

(d) Abbreviations. The following abbreviations are used in this section 1961.1: ~"" .

"cc" mean cubic centimeters.

"CH/ means methane.

"C02" means carbon dioxide.

"E85" means a blend of 85 percent ethanol and 15 percent gasoline.

"FTP" means Federal Test Procedure.

"GHG" means greenhouse gas.

"g/mi" means grams per mile.

. "GVW" means gross vehicle weight.

"GVWR" means gross vehicle weight rating.

"GWP" means the global warming potentiaL.

"HEV" means hybrid-electric vehicle.

"LDT" means light-duty truck.

"LDTl" means a light-duty truck with a loaded vehicle weight of 0-3750 pounds.

"LDT2" means a "LEV II" light-duty truck with a loaded vehicle weight of 3751 pounds to a gross vehicle

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weight of 8500 pounds.

"LEV" means low-emission vehicle.

"LPG" means liquefied petroleum gas.

"LVW" means loaded vehicle weight.

"MDPV" means medium-duty passenger vehicle.

"MDV" means medium-duty vehicle.

"mg/mi" means milligrams per mile.

"N20" means nitrous oxide.

"PC" means passenger car.

"SULEV" means super-ultra-Iow-emission vehicle.

"ULEV" means ultra-low-emission vehicle.

"lEV" means zero-emission vehicle.

(e) Definitions Specific to this Section. The following definitions apply to this section 1961.1:

(1) "A/C Direct Emissions" means any refrigerant released from a motor vehicle's air conditioning

system.

(2) "A/C Indirect Emissions" means any increase in motor vehicle exhaust CO2 emissions that can be

attributed to the operation of the air conditioning system.

(3) "GHG Vehicle Test Group" means vehicles that have an identical test group, vehicle make and

model, transmission class and driveline, aspiration method (e.g., naturally aspirated, turbocharged),

camshaft configuration, valvetrain configuration, and inertia weight class.

(4) "Greenhouse Gas" means the following gases: carbon dioxide, methane, nitrous oxide, and

hyd rofl uorocarbons.

(5) "Grid-Connected Hybrid Electric Vehicle" means a hybrid electric vehicle that has the capacity for

the battery to be recharged from an off-board source of electricity and has some all-electric range.

(6) "GWP" means the 100-year global warming potential specified in IPCC (Intergovernmental Panel

on Climate Change) 2000: Emissions Scenarios. N. Nakicenovic et. al. editors, Special Report of

Working Group II of the IPCC, Cambridge University Press, Cambridge UK, ISBN 0-521-80493-0.

(7) "National greenhouse gas program" means the national program that applies to new 2012 through

2016 model year passenger cars, light-duty trucks, and medium-duty passenger vehicles as proposed

by the U.S. Environmental Protection Agency at 74 Fed.Reg. 49454 (September 28, 2009) and

adopted by EPA on April 1, 2010, 75 Fed.Reg. (insert page), April (insert date), 2010, as incorporated

in and amended by the "California Exhaust Emission Standards and Test Procedures for 2001 and

Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles."

(8) "Normal Operation" of an air conditioning system means typical everyday use of the A/C system to

cool a vehicle. "Normal Operation" does not include car accidents, dismantling of an air conditioning

system, or any other non-typical events.

(9) "Optional GHG Test Vehicle Configuration" means any GHG vehicle configuration that is selected

for testing by the manufacturer as allowed by section G.2.3 of the "California Exhaust Emission

Standards and Test Procedures for 2001 and Subsequent Model Passenger Cars, Light-Duty Trucks,

and Medium-Duty Vehicles," other than the worst-case configuration.

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California Code of Regulations Page 13 of 14

(10) "Renewable Energy Resource" means a facility that meets all of the criteria set forth in Public

Resources Code section 25741(a), except that the facility is not required to be located in California or

near the border of California.

(11) "Variable Displacement Compressor" means a compressor in which the mass flow rate of

refrigerant is adjusted independently of compressor speed by the control system in response to

cooling load demand.

(12) "Variable Speed Compressor" means a compressor in which the mass flow rate of refrigerant can

be adjusted by control of the compressor input shaft speed, independent of vehicle engine speed. For

example, a variable speed compressor can have electric drive, hydraulic drive, or mechanical drive

through a variable speed transmission.

(13) "Worst-Case" means the vehicle configuration within each test group that is expected to have the

highest CO2-equivalent value, as calculated in section 1961.1(a)(1)(B)1.

(f) Severabilty. Each provision of this section is severable, and in the event that any provision of this

section is held to be invalid, the remainder of this article remains in full force and effect.

(g) Effective Date of this Section. The requirements of this section 1961.1 shall become effective on

January 1, 2006.

Note: Authority cited: Sections 39500, 39600, 39601, 43013, 43018, 43018.5, 43101, 43104 and

43105, Health and Safety Code. Reference: Sections 39002, 39003, 39667,43000,43009.5, 43013,

43018, 43018.5, 43100, 43101, 43101.5, 43102, 43104, 43105, 43106, 43204, 43205 and 43211, Health

and Safety Code.

HISTORY

1. New section filed 9-15-2005; operative 1-1-2006 (Register 2005, No. 37).

2. New subsections (a)(l)(A)1.-(a)(l)(A)1.d., amendment of subsection (a)(l)(B)1.a., new subsections

(a)(l)(B)1.b.iv. and (a)(l)(B)1.c.iv. and amendment of subsection (b)(3)(A) filed 4-1-2010; operative 4-

1-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 14).

3. Amendment designating former subsection (a)(l)(A) as subsection (a)(l)(A)(i), new subsections (a)(l)

(A)(ii)-(a)(1)(A)(ii)3., new subsection (e)(7) and subsection renumbering filed 4-1-2010; operative 4-1-

2010 pursuant to Government Code section 11343.4 (Register 2010, No. 14).

13 CCR § 1961.1, ..13 CA ADC § 1961.....1 ..

This database is current through 10/8/10 Register 2010, No. 41

END OF DOCUMENT

l Term

(9 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Docs In Sequence Table of Contents

Westlaw, part of Thomson Reuters THOMSON REUTERS'

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EXHIBIT 2

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_'_ ,.;. -, = --_.__;:.._...,_--_~_.~_~__ .C'.

ef EnA Unil~ o ..... rl- t::;IlIPr

Endangerment and Cause or

Contribute Findings for

Greenhouse Gases Under

Section 202(a) of the Clean Air

Act:

EPA's Response to Public

Comments

Volume 1: General Approach to

the Science and Other

Technical Issues

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assessment of the vast body of underlying science. Final1y, see Volume 11, Section 11.6.4 (Transparency)

for our response to further comments regarding the Carlin document.

i.i.1 Specifc Comments on EPA's Use ofIPCC Reports

Comment (1-14):

Commenters (I 309. 1,2813. 1,3187.5,3330.1,3389,3429.1,3440.1,3597,3722, 4032, 4288,9061.,

10196, 10197, 11288, 11315, 11409, 11046, and 11410) argue that the process and structure that ¡PCC

employs in developing its assessment reports yields flawed reports. Specifical1y, several commenters

(0664,3187.5,3250,3330.1,3372.1, and 4172) add that ¡PCC report development process is not

transparent. Several of these commenters argue that not al1 of the authors or governments that participated

in the report development process agree with al1 of the conclusions and that consensus was never reached.

A few commenters (1309.1,3187.5, and 11409) argue that the ¡PCC information quality process and

system for engaging public comments is flawed, as the ¡PCC ignores the best available science and

comments that have been submitted during public comment. Several commenters (0582, 1309.1, 3187.5,

3747.1,4172, and 11409) argue that the review process ¡PCC uses is not objective, transparent to the

public, or effective in ensuring that the best available information is used.

Response (1-14):

See Section III.A. of the Findings, "The Science on Which the Decisions Are Based," for our response to

comments on the use of the assessment literature and previous responses in this section regarding our

treatment of new and additional scientific literature provided through the public comment process. For

EPA's responses to comments and literature provided on specific climate science issues in the TSD,

please refer to the appropriate Response to Comment volumes.

We refer the commenters to Appendix A of this volume, which contains ¡PCC's Principles Governing

¡PCC Work (2006), ¡PCC's Procedures for the Preparation, Review, Acceptance, Adoption, Approval,

and Publication of ¡PCC Reports (1999), and ¡PCC's Guidance Notesfor Lead Authors of the ¡PCC

Fourth Assessment Report on Addressing Uncertainties (2004). Regarding the role of the ¡PCC, we quote

from their Principles (IPCC, 2006) which states that:

The role of the ¡PCC is to assess on a comprehensive, objective, open and transparent

basis the scientific, technical and socio-economic information relevant to understanding

the scientific basis of risk of human-induced climate change, its potential impacts and

options for adaptation and mitigation. ¡PCC reports should be neutral with respect to

policy.

EPA has both evaluated and participated in the development and review ofIPCC reports, and the ¡PCC

process is transparent and rigorous. The ¡PCC ensures scientific credibilty and legitimacy of its reports

by fairly representing the range of scientific opinions on climate change, and the ¡PCC provides multiple

opportunities for input from experts along the entire speictrum of opinions. Public comment periods for

the three Working Group reports that compose ¡PCC (2007) were held to provide the international

community with opportunities to review and comment. ¡n the U.S., the CCSP announced public comment

,opportunities in the Federal Register and on the CCSP Web site (see list ofCCSP announcements and FR

notices at http://www.climatescience.gov/Library/iocc/default.htm) for each of the ¡PCC (2007) Working

Group reports and the Sy nthesis Report. CCSP also solicited nominations of author and reviewers for the

¡PCC (2007) reports using the same communications vehicles. Final1y, ¡PCC provides the public with

access to comments received and how they were responded to for transparency purposes. Please see the

excerpt from ¡PCC's Procedures (IPCC, 1999) at the end of this response which describes in detail the

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procedures for author selection, report drafting, review by governments and experts, final report

preparation, and formal approval and acceptance. Appendix A of this volume contains IPCC's

Procedures (IPCC, 1999) in its entirety.

Regarding the comment that the authors involved in producing IPCC (2007) and the governments charged

with its review and acceptance did not agree with all of the conclusions, we note that the IPCC has a

robust and transparent process for reaching consensus and properly documenting instances where

consensus is not met. IPCC's Principles (IPCC, 2006) state that:

In taking decisions, and approving, adopting and accepting reports, the Panel, its

Working Groups and any Task Forces shall use all best endeavors to reach consensus. If

consensus is judged by the relevant body not possible: (a) for decisions on procedural

issues, these shall be decided according to the General Regulations of the WMO; (b) for

approval, adoption and acceptance of reports, differing views shall be explained and,

upon request, recorded. Differing views on matters of a scientific, technical or socioeconomic nature shall, as appropriate in the context, be represented in the scientific,

technical or socio-economic document concerned. Differences of views on matters of

policy or procedure shall, as appropriate in the context, be recorded in the Report of the

Session.

We disagree with the commenter that consensus was not reached amongst the governments and authors

involved with the IPCC. Consistent with IPCC procedures, the Summary for Policymakers of Working

Groups I, II, and II were 'approved' and the full reports ofthe three Working Groups were 'accepted'.

IPCC Procedures (IPCC, 1999) define' approval' to mean that "the material has been subjected to

detailed, line by line discussion and agreement," and "acceptance" signifies that "the material has not

been subject to line by line discussion and agreement, but nevertheless presents a comprehensive,

objective and balanced view of the subject matter." Finally, we note that most of the commenters

provided no evidence to defend their arguments. The few pieces of evidence that were submitted focused

on very narrow and specific findings of studies that were referenced by IPCC (2007). For EPA's

responses to these specific issues, please refer to the appropriate Response to Comment volumes.

Below, we provide excerpts of the relevant sections of the IPCC procedures (IPCC, 1999); the full text of

the procedures is found in Appendix A.

Report development: To ensure objectivity, transparency, and information quality, the procedures

(IPCC, i 999) clearly describe the roles and responsibilties of coordinating lead authors, lead authors,

contributing authors, expert reviewers, review editors, and government reviewers in report development.

4.2. J Compilation of Lists of Coordinating Lead A uthors, Lead Authors, Contributing

Authors, Expert Reviewers, Review Editors and Government Focal Points

At the request of Working Group/Task Force Bureau Co-Chairs through their respective

Working Group /Task Force Bureau, and the IPCC Secretariat, governments, and

participating organizations and the Working Group/Task Force Bureau should identifY

appropriate experts for each area in the Report who can act as potential Coordinating

Lead Authors, Lead Authors, Contributing Authors, expert reviewers or Review Editors.

To faciltate the identification of experts and later review by governments, governments

should also designate their respective Focal Points. IPCC Bureau Members and Members

of the Task Force Bureau should contribute where necessary to identifYing appropriate

Coordinating Lead Authors, Lead Authors, Contributing Authors, expert reviewers, and

Review Editors in cooperation with the Government Focal Points within their region to

ensure an appropriate representation of experts from developing and developed countries

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and countries with economies in transition. These should be assembled into lists available

to all IPCC Members and maintained by the IPCC Secretariat. The tasks and

responsibilities of Coordinating Lead Authors, Lead Authors, Contributing Authors,

expert reviewers, Review Editors and government Focal Points are outlined in Annex 1.

4.2.2 Selection of Lead Authors

Coordinating Lead Authors and Lead Authors are selected by the relevant Working

Group/Task Force Bureau, under general guidance and review provided by the Session of

the Working Group or, in case of reports prepared by the Task Force on National

Greenhouse Gas Inventories, the Panel, from those experts cited in the lists provided by

governments and participating organizations, and other experts as appropriate, known

through their publications and works. The composition of the group of Coordinating Lead

Authors and Lead Authors for a section or chapter of a Report shall reflect the need to

aim for a range of views, expertise and geographical representation (ensuring appropriate

representation of experts from developing and developed countries and countries with

economies in transition). There should be at least one and normally two or more from

developing countries. The Coordinating Lead Authors and Lead Authors selected by the

Working Group/Task Force Bureau may enlist other experts as Contributing Authors to

assist with the work.

At the earliest opportunity, the IPCC Secretariat should inform all governments and

participating organizations who the Coordinating Lead Authors and Lead Authors are for

different chapters and indicate the general content area that the person wil contribute to

the chapter.

.. 4.2.3 Preparation of Draft Report

Preparation of the first draft of a Report should be undertaken by Coordinating Lead

Authors and Lead Authors. Experts who wish to contribute material for consideration in

the first draft should submit it directly to the Lead Authors. Contributions should be

supported as far as possible with references from the peer-reviewed and internationally

available literature, and with copies of any unpublished material cited. Clear indications

of how to access the latter should be included in the contributions. For material available

in electronic format only, a hard copy should be archived and the location where such

material may be accessed should be cited.

Lead Authors wil work on the basis of these contributions, the peer-reviewed and

internationally-available literature, including manuscripts that can be made available for

IPCC review and selected non-peer review literature according to Annex 2 and ¡PCC

Supporting Material (see section 6). Material which is not published but which is

available to experts and reviewers may be included provided that its inclusion is fully

justified in the context of the IPCC assessment process (see Annex 2).

In preparing the first draft, and at subsequent stages of revision after review, Lead

Authors should clearly identify disparate views for which there is significant scientific or

technical support, together with the relevant arguments. Technical summaries provided

wil be prepared under the leadership of the Working Group/Task Force Bureau.

Review: ¡PCC's Procedures prescribe that "Review is an essential part of the IPCC process, to ensure an

objective and complete assessment of current information." The following excerpts from ¡PCC's

Procedures describe in detail the steps, requirements, and objectives of the review process.

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..i!L .~~, ',;" :~

4.1 Introduction to Review Process

The review process generally takes place in three stages: expert review ofIPCC Reports,

government/expert review ofIPCC Reports, government review of the Summaries for

Policymakers, Overview Chapters and/or the Synthesis Report. Working Group/Task

Force Bureau Co-Chairs should aim to avoid (or at least minimize) the overlap of

government review periods for different IPCC Reports and with Sessions of the

Conference of Parties of the United Nations Framework Convention of Climate Change

and its subsidiary bodies.

Expert review should nonnally be eight weeks, but not less than six weeks, except to the

extent decided by the PaneL. Government and government/expert reviews should not be

less than eight weeks, except to the extent decided by the PaneL.

All written expert, and government review comments wil be made available to reviewers

on request during the review process and will be retained in an open archive in a location

detennined by the LPCC Secretariat on completion of the Report for a period of at least

five years....

.. .4.2.4 Review

Three principles governing the review should be borne in mind. First, the best possible

scientific and technical advice should be included so that the LPCC Reports represent the

latest scientific, technical and socio-economic findings and are as comprehensive as

possible.

Secondly, a wide circulation process, ensuring representation of independent experts (i.e.

experts not involved in the preparation of that paricular chapter) from developing and

developed countries and countries with economies in transition should aim to involve as

many experts as possible in the LPCC process. Thirdly, the review process should be

objective, open and transparent.

To help ensure that Reports provide a balanced and complete assessment of current

information, each Working Group/Task Force Bureau should nonnally select two Review

Editors per chapter (including the executive summaries) and per technical summary of

each Report;

Review Editors should normally consist of a member of the Working Group/Task Force

Bureau, and an independent expert based on the lists provided by governments and

participating organizations. Review Editors should not be involved in the preparation or

review of material for which they are an editor. In selecting Review Editors, the Bureau

should select from developed and developing countries and from countries with

economies in transition, and should aim for a balanced representation of scientific,

technical, and socio-economic views.

4.2.4.1 First Review (by Experts)

First draft Reports should be circulated by Working Group/Task Force Bureau Co-Chairs

for review by experts selected by the Working Group/Task Force Bureau and, in addition,

those on the lists provided by governments and participating organizations, noting the

need to aim for a range of views, expertise, and geographical representation. The review

circulation should include:

o Experts who have significant expertise and/or publications in particular areas

covered by the Report.

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o Experts nominated by governments as Coordinating Lead Authors, Lead

Authors, contributing authors or expert reviewers as included in lists maintained

by the IPCC Secretariat.

o Expert reviewers nominated by appropriate organizations.

The first draft Reports should be sent to Government Focal Points, for information, along

with a list of those to whom the Report has been sent for review in that country.

The Working Group/Task Force Bureau Co-Chairs should make available to reviewers

on request during the review process specific material referenced in the document being

reviewed, which is not available in the international published literature.

Expert reviewers should provide the comments to the appropriate Lead Authors through

the relevant Working Group/Task Force Bureau Co-Chairs with a copy, if required, to

their Government Focal Point.

Coordinating Lead Authors, in consultation with the Review Editors and in coordination

with the respective Working Group/Task Force Bureau Co-Chairs and the IPCC

Secretariat, are encouraged to supplement the draft revision process by organizing a

wider meeting with principal Contributing Authors and expert reviewers, if time and

funding permit, in order to pay special attention to particular points of assessment or

areas of major differences.

4.2.4.2 Second Review (by Governments and Experts)

A revised draft should be distributed by the appropriate Working Group/Task Force

Bureau Co-chairs or through the IPCC Secretariat to governments through the designated

Government Focal Points, and to all the coordinating lead authors, lead authors and

contributing authors and expert reviewers.

Governments should send one integrated set of comments for each Report to the

appropriate Working Group/Task Force Bureau Co-chairs through their Government

Focal Points.

Non-government reviewers should send their further comments to the appropriate

Working Group/Task Force Bureau Co-Chairs with a copy to their appropriate

Government Focal Point.

Acceptance and Approval: Finally, IPCC's Procedures (i 999) describe the acceptance and approval

procedures to ensure that the development of the assessment reports has been completed in a way which

maximizes objectivity, transparency, quality, and utilty:

4.2.5 Preparation of Final Draft Report

Preparation of a final draft Report taking into account government and expert comments

for submission to a Sess ion of a Working Group or, in case of a report prepared by the

Task Force on National Greenhouse Gas Inventories, of the Panel for acceptance should

be undertaken by Coordinating Lead Authors and Lead Authors in consultation with the

Review Editors. If necessary, and timing and funding permitting, a wider meeting with

principal Contributing Authors and expert and government reviewers is encouraged in

order to pay special attention to particular points of assessment or areas of major

differences. It is important that Reports describe different (poss ibly controversial)

scientific, technical, and socio-economic views on a subject, particularly if they are

13

23 EPA Response to Stay Motion

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relevant to the policy debate. The final draft should credit all Coordinating Lead Authors,

Lead Authors, Contributing Authors, reviewers and Review Editors by name and

affiiation (at the end of the Report).

4.3 Approval and Acceptance of Summaries for Policymakers and Adoption of

Overview Chapters of Methodology Reports Related to National Greenhouse Gas

Inventories

Summary sections of Reports approved by the Working Groups and accepted by the

Panel wil principally be the Summaries for Policymakers, prepared by the respective

Working Groups of their full scientific, technical and socio-economic assessments, and

Summaries for Policymakers of Special Reports prepared by the Working Groups. The

Summaries for Policy Makers should be subject to simultaneous review by both experts

and governments and to a final line by line approval by a Session of the Working Group.

Responsibility for preparing first drafts and revised drafts of Summaries for

Policymakers, lies with the respective Working Group Co-Chairs. The Summaries for

Policymakers should be prepared concurrently with the preparation of the main Reports.

Approval of the Summary for Policy makers at the Session of the Working Group,

signifies that it is consistent with the factual material contained in the full scientific,

technical and socioeconomic assessment or Special Report accepted by the Working

Group. Coordinating lead authors may be asked to provide technical assistance in

ensuring that consistency has been achieved. These Summaries for Policymakers should

be formally and prominently described as:

"A Report of (Working Group X of) the Intergovernmental Panel on Climate

Change."

For a Summary for Policymakers approved by a Working Group to be endorsed as an

IPCC Report, it must be accepted at a Session of the PaneL. Because the Working Group

approval process is open to all governments, Working Group approval ofa Summary for

Policymakers means that the Panel cannot change it. However, it is necessary for the

Panel to review the Report at a Session, note any substantial disagreements, (in

accordance with Principle 10 of the Principles Governing IPCC Work) and formally

accept it.

As demonstrated by these procedures, IPCC assessment reports are developed following well-established

and comprehensive guidelines. As an example of how this process works in practice, the introduction to

IPCC (2007b), the working group report on impacts, adaptation and vulnerability, summarized their

process as follows:

In total, the Working Group II Fourth Assessment involved 48 Coordinating Lead

Authors (CLAs), 125 Lead Authors (LAs), and 45 Review Editors (REs), drawn from 70

countries. In addition, there were i 83 Contributing Authors and 910 Expert Reviewers.

Each chapter in the Working Group II Fourth Assessment had a writing team of two to

four CLAs and six to nine LAs. Led by the CLAs, it was the responsibilty of this writing

team to produce the drafts and finished version of the chapter. Where necessary, they

could recruit Contributing Authors to assist in their task. Three drafts of each chapter

were written prior to the production of the final version. Drafts were reviewed in two

separate lines of review, by experts and by governments. It was the role of the REs (two

14

24 EPA Response to Stay Motion

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t

to three per chapter) to ensure that the review comments were properly addressed by the

authors.

The authors and REs were selected by the Working Group II Bureau from the lists of

experts nominated by governments. Due regard was paid to the need to balance the

writing team with proper representation from developing and developed countries, and

Economies in Transition. In the review by experts, chapters were sent out to experts,

including all those nominated by governments but not yet included in the assessment,

together with scientists and researchers identified by the Working Group II Co-Chairs

and Vice-Chairs from their knowledge of the literature and the global research

community.

The evidence is clear that the IPCC's procedures are suffcient and effective for ensuring quality,

transparency, and consideration of multiple and diverse perspectives. Because the assessment reports EPA

used in developing the TSD represent the best available science, and because supporting studies were

conducted in accordance with sound and objective scientific practices, were peer reviewed, and adhered

to standards of quality based on objectivity, utility, and integrity, we find that IPCC's information quality

process is consistent with EP A's Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility

and Integrity of Information Disseminated by the Environmental Protection Agency.

The U.S. Government participated fully in the development, review, and ultimate acceptance and

approval of ¡PCC (2007). As stated on the USGCRP's Web site: "When governments accept the ¡PCC

reports and approve their Summary for Policymakers, they acknowledge the legitimacy of their scientific

content" (http://ww.g lobalchange.gov /pub 1 ications/reoorts/i pcc-reports).

Comment (1-15):

A commenter (3303) argues that the ¡PCC AR4 relied upon non-peer reviewed, unsupportable studies

rather than peer-reviewed literature.

Response (1-15):

The ¡PCC Procedures (IPCC, 1999) used in preparing its assessment reports are described above and can

be viewed in Appendix A of this volume. The IPCC provides a robust process for ensuring that the best

available scientific infonnation is used in their assessment report development process. The IPCC (2007)

relied almost exclusively on peer-reviewed, published information and we note that IPCC procedures

require reliance on peer-reviewed literature except in specific instances. IPCC's guidelines state that

"Contributions should be supported as far as possible with references from the peer-reviewed and

internationally available literature..." (IPCC, 1999). Limited unpublished material was included only if it

was justified in the context of the ¡PCC assessment process and completely accessible.

Annex 2 of the ¡PCC procedures (IPCC, 1999) provides the following guidelines for using non-published

sources in assessment reports:

Because it is increasingly apparent that materials relevant to IPCC Reports, in particular,

infonnation about the experience and practice of the private sector in mitigation and

adaptation activities, are found in sources that have not been published or peer-reviewed

(e.g., industry journals, internal organizational publications, non-peer reviewed reports or

working papers of research institutions, proceedings of workshops etc) the following

additional procedures are provided. These have been designed to make all references

used in ¡PCC Reports easily accessible and to ensure that the ¡PCC process remains open

and transparent.

15

25 EPA Response to Stay Motion

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EXHIBIT 3

26 EPA Response to Stay Motion

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Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 26
ft EA~ United States ~ Environmental Protection ~". Agency

EPA's Response to the Petitions to

Reconsider the Endangerment and

Cause or Contribute Findings for

Greenhouse Gases under Section

202(a) of the Clean Air Act

Volume 3: Process Issues Raised

by Petitioners

u.s. Environmental Protection Agency

Office of Atmospheric Programs

Climate Change Division

Washington, D.C.

27 EPA Response to Stay Motion

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_,_ ." .'__C1.._~_-"-.

TABLE OF CONTENTS

Paee

3.0 Process Issues Raised by Petitioners... .........................................................................................5

3.1 Approaches and Processes Used to Develop the Scientific Support for the

Find ¡ngs............................................................................................................................5

3.1.1 Overview......................... ....... ............ ..... ...... ............... ..... ........ ........... ....... ........5

3.1.2 Issues Regarding Consideration of 

the CRU E-mails..........................................6

3.1.3 Assessment of Issues Raised in Public Comments and Re-Raised in

Petitions for Reconsideration... ........... ............................ ...... ....... ........ ........... .....7

3.1.4 Summary ... ............. ..... ......... ................. ............... .................... ..... ........ ........... 19

3.2 Response to Claims That the Assessments by the USGCRP and NRC Are Not

Separate and Independent Assessments............ ............................... ........................... ...20

3.2.1 Overview..... ............... ................ ............. ..... ................ .......... .................... .......20

3.2.2 EP A's Response to Petitioners' Arguments ......................................................21

3.2.3 Summary .............. ....... ..... ~.......... ............. ........ ............. ............. ....... .................27

3.3 Issues Concerning the Integrity of 

Peer-Reviewed Literature.......................................27

3.3.1 Overview.......... .................. ............. ...... .......... ....... ............... .... ........... ............ .27

3.3.2 Allegations Regarding Reviews of Manuscripts...............................................28

3.3.3 Allegations Regarding Journal Publication Practices ........................................35

3.3.4 Allegations Regarding Efforts to Remove Editors and Boycott Journals..........48

3.3.5 Allegations Regarding Objectivityofthe Peer-Reviewed Literature...............55

3.3.6 Allegations oflntimidating Scientists and Those With Dissenting Views........66

3.3.7 Summary .... .......... ................ ............. .......... ............. .................... ............. .........75

3.4 Issues Concerning Freedom oflnformation Act Requests .............................................76

3.4.1 Overview.... ................ ............... ...... .......... ....... .......... ................ ........ ..............76 .

3.4.2 Allegations of Withholding Key Data and Information ....................................77

3.4.3 Allegations ofImproper Conduct With Regard to UK FOI and U.S. FOIA

Laws...................................,......................................................,........................ 93

3.4.3.1 General Allegations ....... .......... ...... ........ ........ .......... ..... ................... ......93

3.4.3.2 Specifc FOI Request Regarding the IPCC's Fourth Assessment

Report...................................................................................................1 02

3.4.3.3 Allegations of Improperly Influencing University FOIA Offcials ......1 09

3.4.4 Summary ..... .............. ............ ........... ............. .......... ..... ........ ........... .......... ..... ..11 0

References..... ........... ......... ...... ................. ............ .............. ........ .......... ................ ......... ......... ........ .......1 i 2

2

28 EPA Response to Stay Motion Exhibits .

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r

Following issuance of the Endangerment Finding, petitioners raised more specific concerns with

respect to the CRU e-mails. EPA has reviewed all ofthe e-mails in light of the petitioners'

assertions, and our substantive responses on the science are provided in the Decision and the

three volumes of the RTP document. On the basis of our analysis of the scientific issues raised,

and our thorough review of the contents ofthe e-mails, we disagree with the petitioners'

contention that additional "searching reanalysis" otthe Endangerment Finding is required. Our

examination of the CRU e-mails in light ofthe current science shows that the petitioners

,routinely misunderstand or mischaracterize the scientific issues they are raising, and draw faulty

conclusions on the state of the science; We show throughout this RTP document multiple

examples where petitioners have resorted to hyperbole, broadly impugned the ethics and

scientific integrity of climate scientists in general, and characterized actions as "falsification"

and "manipulation" with no basis or support. As we reviewed the many footnotes in their

documents, we found an inordinate reliance on blogs, news stories, and literature that is neither

peer-reviewed nor accurately summarized in their petitions.

Nothing has been presented that challenges the current understanding of climate change science

and the causal linkage between human-caused OHO emissions and waring of the climate

system.' Indeed, EPA finds that petitioners most often rely on "cherr-picked" language from

select e-mails that creates the suggestion or appearance of impropriety, without looking deeper

into the issues or providing corroborating evidence that improper action actually occurred.

Throughout the three volumes ofthis document, we have provided detailed and specific

responses to petitioners' assertions based on the CRU e-mails.

3.1.3 Assessment 0/ Issues Raised in Public Comments and Re-Raised in Petitions/or

Reconsideration

The Administrator Exercised Her Judgment in Reviewing the Science and Making the Findings

Comment (3-2):

Several petitioners (the Coalition for Responsible Regulation, the Commonwealth of Virginia,

the Ohio Coal Association, Peabody Energy, the State of Texas, the Southeastern Legal

Foundation, and Arthur Randol) argue that the Administrator did not independently judge the

primary scientific literature and data. Instead, they claim that she improperly relied on summar

scientific reports produced by third parties or "foreign entities." They argue this is a violation of

Clean Air Act (CAA) Section 202(a)'s requirement that the Administrator exercise her own

expert judgment. EPA responded to similar arguments during notice and comment on the

Findings. More recently, petitioners re-raise this argument in light of new information that they

claim calls into greater question EPA's reliance on the assessment literature. For example, the

Southeastern Legal Foundation argues that "the Administrator cannot possibly exercise the form

of 'judgment' required by the Clean Air Act based on data or procedures from other agencies that

are potentially faulty, manipulated, contrived, or otherwise subject to the kinds of irregularities

that have been alleged with respect to current climate information." The Coalition for

Responsible Regulation and the Commonwealth of Virginia argue that in relying on the

assessment reports ofthe IPCC, EP A ceded or sub-delegated its responsibilty for independent

judgment to the IPCC, which the petitioners characterize as "an international body not subject to

7

29 EPA Response to Stay Motion

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.. - . ....... ., ...." .g.'-,.,._------

~~..-:.

U.S. data quality and transparency standards and whose reports were prepared in total disregard

to those standards," and whose processes are politically motivated and advance "policy

objectives masquerading as science."

Several petitioners (the Coalition for Responsible Regulation, the State of 

Texas, Arthur Randol,

the Pacific Legal Foundation, and Peabody Energy) make the related argument that EPA violated

the IQA and Administrative Procedure Act (APA) because it "did not independently investigate

and confirm the quality and transparency of the information cited in the 'assessment literature,'

relying instead on its review of the written procedures of the organizations preparing that

literature to conclude that those organizations had ensured quality and transparency." Finally,

the Coalition for Responsible Regulation and Peabody Energy argue that EP A cannot rely on the

IPCC because the CRU e-mails demonstrate that influential IPCC scientists failed to meet EPA's

data quality and transparency obligations under the IQA.

Response (3-2):

As noted previously, we find that these issues raised by petitioners are not new, and were, in fact,

raised and responded to through the notice and comment process. Thus, objections based on

EP A's general reliance on assessment reports, rather than EP A's undertaking a separate

assessment itself, were not impracticable to raise during the public comment period and the

reasons for the objection did not arise between June 24,2009, and February 16, 2010.

To the extent petitioners argue that new information in the CRU e-mails calls into question the

reasoning behind EP A's position on the use of assessment reports in the final Findings, the

petitioners do not demonstrate that additional information has become available that merits

reconsideration of the Findings, or EPA's use of the assessment literature. Nonetheless, we have

carefully reviewed the new concerns raised regarding the implications of 

the CRU e-mails.

Here, we focus specifically on the issue of whether information in the CRU e-mails requires us

to undertake additional procedural steps with respect to the Endangerment Finding. Our

response to each of the issues raised by petitioners follows. Note that we respond to petitioners'

allegations on substantive science issues elsewhere in this RTP document.

With respect to the petitioners' claims that EPA should have conducted its own independent,

assessment of the primary scientific literature and not relied on scientific reports produced by

third parties or "foreign entities," we note that the Administrator provided a detailed discussion

of her position in Section UI.A of the Findings (see "The Science on Which the Decisions Are

Based"). In other sections of this RTP document, we have already explained why the CRU

e-mails and the nature and number of reported errors in the IPCC report, as well as arguments or

objections over the scientific conclusions EP A reached in the Findings, do not lead EP A to

change its scientific conclusions and do not necessitate the reconsideration of 

the Findings. We

find that the issues raised by petitioners do not lead us to change our decision regarding our

approach and do not demonstrate that an additional or separate review is either required or

, appropriate.

For the same reasons, these claims do not warrant revisiting EPA's approach to analyzing that

science. We note that the IPCC reports are a primary but not the only source of 

scientific

information underlying the Findings. As is clearly stated in the Findings, the Administrator

8

30 EPA Response to Stay Motion

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:. -I

relied on numerous other assessment reports prepared by the U.S. Global Change Research

Program (USGCRP), the National Research Council (NC), and others. In addition, the

Administrator tested her approach and proposed conclusions by subjecting them to notice and

comment, and in reaching final conclusions drew on the wealth of information submitted through

public comments to inform her decision. Many commenters provided additional scientific

literature, which we carefully reviewed, considered, and responded to. A cursory examination of

the detailed discussions in the multi-volume RTC document demonstrates the care and rigor with

which EPA approached the underlying science. Therefore, we reject Peabody Energy's

allegation that EP A "used a rulemaking process that effectively permits no replies and no

rebuttals" to the science that formed the technical basis for the Findings. In addition, in May

, 20 i 0 the NRC issued another major climate change assessment report that further solidifies the

science supporting the Administrator's decision and supports that decision. This recent NRC

report is discussed further in the Denial and Volume i ofthe RTP document.

In responding to petitioners' objections that the Administrator failed to exercise her own

judgment in reaching the Endangerment Finding, we note that this issue is not new and

petitioners have not raised new arguments callng into question the process for the Endangerment

Finding. Nonetheless, it is useful to describe the process EPA followed in 

compilng and

analyzing the science to support the Administrator's Endangerment Finding. Contrary to

petitioners' assertions, EP A did not passively accept a scientific judgment or conclusion supplied

to it by outsiders. Instead, EPA evaluated all of the scientific information before it, and

determined from this information the current state ofthe science on climate change and the

degree of scientific consensus on this science. The Administrator then considered this

information in light ofthe legal criteria for determining endangerment. This process included

EPA presenting its scientifc views and judgments for public comment and then evaluating and

considering all such comments received. The Administrator properly and carefully exercised 

her

judgment in all matters related to the Endangerment Finding.

The following is an outline of the. actions taen that evidence EPA's comprehensive and in-depth exercise of judgment: '

i. EPA has a strong scientific background and understanding in global climate change

science. EP A scientists have worked for years in this area, and many EP A scientists have

been part of the development ofthe Intergovernmental Panel on Climate Change (IPCC)

and USGCRP assessment reports. EP A has strong in-house science expertise in this area,

while recognizing that no one organization wil have experts or expertise in all of 

the

variety of areas involved. However, EPA has a solid grounding in the core areas of

science involved in climate change. Many EPA scientists were part of 

the development

ofthe various assessment reports.

2. EPA's goal was to evaluate the current state ofthe science for all of the relevant areas at

issue for the Endangerment Finding, and to evaluate the degree of scientific consensus in

these areas. EP A performed a detailed review of all elements ofthe various assessment

reports as part of evaluating this.

3. EPA evaluated the assessment reports and their conclusions in several ways:

9

31 EPA Response to Stay Motion

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.:......,.',-..-...:

o EPA reviewed the process employed to develop the reports, relying in par on its own

experience and involvement in various parts of 

the process for the IPCC and

USGCRP reports. EPA concluded that the lengthy, comprehensive process was very

robust, with checks and steps included to produce high-quality, unbiased reports.

o EP A reviewed the content ofthe reports in light ofits in-house science expertise.

EP A found the reports' contents to be comprehensive, balanced, carefully caveated

with respect to certainty, clearly identifying supporting as well as non-supporting

evidence, with conclusions drawn based on the entire body of 

the evidence, not just

one part of it.

o EP A took into consideration the depth of scientific consensus the report represented.

They reflect a very strong consensus of the scientific community across the world.

EP A has nev(;r claimed that there is unanimity on all aspects of the science, but there

is a very broad scientific consensus on the multipié lines of evidence on which the

Findings are based (as described in Section m.B of 

the Denial). This consensus

includes concurrence and clearance within the U.S. government sCience communitY,

on many ofthe major assessment reports.

o EP A took into consideration the trends in the science. Over the last 30-plus years, as

we study more, learn more, and advance our understading, the general trend is

toward more certainty that warming is occurring, that it is caused by anthropogenic

emissions, and that we are currently on a path to future increases in warming.

4. After conducting this review ofthe state of the science, EPA reached an initial conclusion

that the assessment reports provide a reliable and credible assessment of 

the current state

of the science, reflecting the many areas of consensus across the science community, and

also documenting those areas that are less settled and where uncertainty remains.

5. EPA then provided an opportnity for public comment on EPA's initial conclusions and

judgments on the science and the question of endangerment, with a detailed explanation

of the basis for these conclusions and judgments. The public and all of the petitioners

had the opportnity to present their views, agreeing or disagreeing, and why. EP A did

this twice-n the Advance Notice of Proposed Rulemaking (ANPR) and on the

Proposed Findings.

This public process was designed to provide a full opportnity to test EPA's initial

conclusions and judgments and allow anyone to present scientific evidence or argument

showing that EPA'sjudgments on the science were inaccurate.

6. EPA carefully reviewed all of the comments submitted on the science and its 

judgments.

o In general, peopié who opposed EPA's initial conclusion presented evidence and

argument on one side or one part of an issue, discussing a limited number of old or

10

32 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 32
" ..~ ~ .' " ~ -

.;-,'--." .-' . .-- - ---- -----~ -'- .. ,._--. -'.... -

o EPA reviewed the studies, arguments, and evidence presented by commenters,

assessed them in light of the entire body of evidence, and responded to the comments.

These responses can be found in the Findings and the 11 volumes of 

the RTC

document.

o Commenters who opposed EPA's initial conclusion on 

the science did not provide a

comprehensive peer-reviewed alternative assessment of 

the science showing how the

body of evidence as a whole supports their conclusion and does not support EPA's

initial conclusion. We note that some commenters (who are also petitioners)

submitted a non-peer reviewed assessment report by the Nongovernmental

International Panel on Climate Change during notice and comment and recommended

it as an alternative to the assessment reports prepared by the IPCC, USGCRP, and

NRC. Response 1-12 in Volume 1 ofthe RTC document explains that we reviewed

the process for preparing this report, as well as its content, and found that it lacked the

depth, breadth, and rigor of the assessment reports on which the Findings rely.

7. After reviewing and considering all ofthe comments and arguments, EPA reached final

conclusions on the state of the science. EPA generally con finned its initial view, while

making a variety of changes and modifications in various places of 

the TSD where it was

warranted.

8. The Administrator carefully evaluated the scope of 

her legal discretion under section

202(a) in making a decision on endangerment, after providing notice of 

her initial legal

views and receiving comments on that initial view.

9. In making the decision on endangerment, the Administrator exercised her own judgment

by applying the science to the legal framework 

provided in section 202(a).

The core of petitioners' objection is that they do not agree with importnt pars ofthe scientific

infonnation on which the Endangennent Finding is based. They frame this as a failure ofEPA

or the Administrator to exercise independent 

judgment, or as EPA ceding to an outside body its

responsibilty to exercise independent judgment. The above makes it clear that neither EP A nor

the Administrator did such a thing. EPA exercised its òwnjudgIent when reviewing the

assessment reports, and did not cede or sub-delegate its authority or judgment to anyone. The

petitioners disagree with the infonnation EP A relied on and the conclusions EP A drew, and EP A

addresses those objections throughout this document and the record for the Endangennent

Finding. However, a disagreement over whether a source of information is useful or credible is

not evidence of a lack of exercise of discretion or judgment.

There has been considerable criticism ofEPA's use of 

the IPCC as a source for the TSD (U.S.

EPA, 2009a), with some petitioners going so far as to refer to it as "an overt scientific

organization with a covert political agenda of making the science confonn to the desired result."

A high level of vitriol has been directed at the IPCC, and gross misstatements have been made

11

33 EPA Response to Stay Motion

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regarding the quality and integrity oftheir processes and reports. We strongly disagree with

these mischaracterizations. The Findings, Volume 1 of 

the RTC document, and Volume 2 of the

RTP document rebut petitioners' allegations that the IPCC is a political, not scientific,

organization and that it does not adhere to U.S. standards oftransparency and data quality.

We respond to petitioners' argument regarding the existence of 

errors in the IPCC Fourt

Assessment Report (AR4) in Volume 2, Section 2.1, of this document and find that the errors are

minimal, mischaracterized and inconsequential to the Findings. We respond to petitioners'

arguments that the IPCC is a biased organization that advances a policy agenda in Volume 2,

Section 2.2 of this RTP document, and we find that petitioners provide no evidence to support

their claims that IPCC authors supported or promoted a unified policy agenda. Throughout

Volume 1 ofthis RTP document, we also respond to petitioners' scientitic arguments that the

IPCC and other assessment reports presented the body of science in a biased or incomplete

manner or reached inappropriate scientific conclusions. On issue after issue, we review the

scientific evidence provided by petitioners and find that they misunderstand or mischaracterize

the issues and the evidence.

The petitioners' arguments that the Agency violated the IQA and APA are also not new, and

EPA provided a detailed response in Volume 1 of the RTC document. Several commenters

previously raised specific scientific concerns, which they claimed demonstrated that EP A

violated the IQA and APA. These were addressed in both Volume 1 and the accompanying

scientific volumes of the RTC. The petitioners now make essentially the same general argument

that EPA's use of third-part assessment reports violates the IQA and APA. As noted in Volume

1 of the RTC, the IQA requires that an agency issue guidelines regarding data quality and ensure

their implementation. EP A complied with, the IQA by issuing its Guidelines for Ensuring and

Maximizing the Quality, Objectivity, Utility and Integrity of Information Disseminated by the

Environmental Protection Agency (U.S. EPA, 2002) and has acted consistently with these

guidelines in developing the Findings. As stated in Volume 1 of 

the RTC, EPA's use of the

assessment literature as a basis for the Endangerment Finding "is consistent with these guidelines

because we thoroughly reviewed and evaluated the author selection, report preparation, expert

review, public review, information quality, and approval procedures ofIPCC, USGCRP/CCSP,

and NRC to ensure the information adhered to a basic standard of quality, including objectivity,

utilty, and integrity." The CRU e-mails do not unodermine this view. Our detailed responses on

the science issues raised by petitioners concerning these e-mails are provided in several other

sections of this RTP document, and'show that petitioners' science claims do not support the view

that the IPCC or other assessment reports were biased, inaccurate, or scientifically incorrect.

Likewise, the few scientific or technical errors identified by petitioners in the IPCC report, such

as the amount of land in the Netherlands that is below sea level, are all minor errors that are

irrelevant in the context ofEPA's Endangerment Finding. See Volume 2 of 

this RTP document

for more detail regarding ouro response to this specific issue. Given the vast number of 

factual

and scientific issues addressed by these comprehensive assessment reports, the existence of only

a very limited number of these kinds of errors does not show a failure to employ and implement

a high degree of control on the scientific quality of the report.

Comment (3-3):

12

34 EPA Response to Stay Motion

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~::~~: r,.'-

EXHIBIT 4

35 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 35
~

ft EDA. United States

Opirl-~"g~~~~mental Protection

EPA's Response to the Petitions

, to Reconsider the Endangerment

and Cause or Contribute

Findings for Greenhouse Gases

under Section 202(a) of,the Clean

Air Act

Volume 2: Issues Raised by

Petitioners on EPA's Use of'IPCC

u.s. Environmental Protection Agency

Office of Atmospheric Programs

Climate Change Division

.Washington, D.C.

36 EPA Response to Stay Motion

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TABLE OF CONTENTS

2.0

2.1

Paee

Issues Raised by Petitioners on EP A's Use oflPCC .................................................................6

Claims That ¡PCC Errors Undermine IPCC Findings and Technical Support for

Endangerment.................................................................................................................. ......6

2.1.1 Overview.................................. .................................~................................................6

2.1.2 Accuracy of Statement on Percent of 

the Netherlands Below Sea Level ..................8

2.1.3 Validity of Himalayan Glacier Projection ................................................................9

2.1.4 Characterization of Climate Change and Disaster Losses ......................................12

2.1.5 Validity of Alps, Andes, and African Mountain Snow Impacts ..............................20

2.1.6 Validity of Amazon Rainforest Dieback Projection ................................................21

2.1.7 Validity of African Rain-Fed Agriculture Projection ..............................................23

2.1.8 Summary ........... .......................... ..... ....... ...... .............. ........ ................... ...................33

Claims That the ¡PCC Has a Policy Agenda and Is Not Objective and Impartial..............34

2.2.1 Overview............ .....,. ............. .......... ....... ........ ................... ............. .........................34

2.2.2 BaCkground..............................................................................................................3 4

2.2.3 Responses to Arguably New Objections Raised by the Petitioners.........................39

2.2.3. J Allegations of Inappropriate Authorship and Reviewer Roles Among

IPCC Personnel..... ........ .............................. ................... ........... ..... ........... ......39

Allegations That Citing One's Own Papers Compromises Objectivity ...........46

Allegations That IPCC Is Biased .....................................................................48

Allegations That IPCC Lead Authors Forced Consensus and Suppressed

Dissenting' Views.............................................................................................. 5 7

2.2.4 . Responses to Allegations Based on Information That Is Not New .........................65

2.2.4. J Allegations of Inappropriate CollaborationsAmong IPCC Authors ..............65

2.2.4.2 Allegations Regarding Insuffcient Peer Review Processes 

for the ¡PCC.......67

2.2.4.3 Allegations That ¡PCC Authors Manipulated Deadlines for New

Literature ..... ............. ........ .......... ........... ..................... ............... ........... .......... .68

2.2.4.4 Allegations Regarding the ¡PCC's Use of 

Gray Literature.............................71

2.2.5 Summar...... ................... ...... ...................... ......................... ..... ........ ............... ..... 73

References........ ...................................................................................................................................... 7 5

2.2

2.2.3.2

2.2.3.3

2.2.3.4

3

37 EPA Response to Stay Motion

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&" -.-.i_-, ::

EPA concludes that this error is minor and inconsequential to the Administrator's Endangerment

Finding. EPA does not refer to or rely on this statistic in the Endangerment Finding or

supporting documents, and this information does not pertain to endangerment ofpublic health

and welfare in the United States in any meaningful way. It does not call into question the

integrity of the IPCC, and it has no impact on the scientific support for EPA's Endangerment

Finding. Furthermore, as the error pertains to a statistic outside the United States, it is not

relevant to the Endangerment Finding. As noted in Subsection 2.1.1, the Endangeiient Finding

states (Section II.D): "The Administrator looked first at impacts in the United,States itself, and

determined that these impacts are reasonably anticipated to endanger the' public health and the

welfare of the U.S. population. That remains the Administrator's position, and by itself supports

her determination of endangerment."

2.1.3 Validity of Himalayan Glacier Projection

Comment (2-2):

Several petitioners (the Coalition for Responsible Regulation, the Competitive Enterprise

Institute, the Ohio Coal Association, Peabody Energy, the Southeastern Legal Foundation, and

the State of Texas) state that the IPCC erred in including a projection that glaciers in the

Himalayas would disappear by 2035, and they claim EP A relied on this projection in the

Endangerment Finding. Petitioners argue that this error undermines the credibilty of the IPCC

reports. The Ohio Coal Association writes: "The Agency no longer has a basis for unquestioned

confidence that the 1PCC reports present a fair, unbiased, and accurate assessment of climate

science." Peabody states the error: "... undercuts EP A's conclusion that the IPCC review process

was 'rigorous' and shows how reliance on the IPCC led to errors in EPA's Endangerment

Finding."

Response (2-2):

The IPCC has issued a correction pertaining to this projection for the melting of Himalayan

glaciers (IPCC, 2010f):

The Synthesis Report, the concluding document ofthe Fourth Assessment Report of the

Intergovernmental Panel on Climate Change (page 49) stated: "Climate change is

expected to exacerbate current stresses on water resources from population growth and

economic and land-use change, including urbanization. On a regional scale, mountain

snow pack, glaciers and small ice caps playa crucial role in freshwater availabilty.

Widespread mass losses from glaciers and reductions in snow cover over recent decades

are projected to accelerate throughout the 21st century, reducing water availabilty,

hydropower potential, and changing seasonality of flows in regions supplied by

meltwater from major mountain ranges (e.g. Hindu-Kush, Himalaya, Andes), where more

than one-sixth of the world population currently lives."

This conclusion is robust, appropriate, and entirely consistent with the uñderlying science

and the broader IPCC assessment. It has, however, recently come to our attention that a

paragraph in the 938-page Working Group II contribution to the underlying assessment

refers to poorly substantiated estimates of rate of recession and date for the disappearance

of Himalayan glaciers. In drafting the paragraph in question, the clear and well.

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38 EPA Response to Stay Motion

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established standards of evidence, required by the IPCC procedures, were not applied

properly.

The Chair, Vice-Chairs, and Co-chairs ofthe IPCC regret the poor application of 

wellestablished IPCC procedures in this instance. This episode demonstrates that the quality

of the assessment depends on absolute adherence to the IPCC standards, including

thorough review of "the quality and validity of each source before incorporating results

from the source into an IPCC Report". We reaffirm our stong commitment to ensuring

this level of performance.

First, as described in Response 2-3 below, this error concerns a single study, out of many that

support the IPCC's conclusions regarding glacier recession. Second, EPA. does not refer to this

projection in the Endangerment Finding or supporting material. We acknowledge that the TSD

mentions Himalayan glaciers; Table 16.1 of Section 16(b) ("Overview of International

Impacts"), highlighting "examples" of international impacts, states (U.S. EPA, 2009):

Glacier melt in the Himalayas is projected to increase flooding and rock avalanches from

destabilzed slopes and to affect water resources within the next two to three decades.

This wil be followed by decreased river flows as the glaciers recede.

This statement is entirely consistent with the IPCC's statement in its Synthesis Report (on page

49) (IPCC, 2007b), cited above, which the ipec notes is "robust, appropriate, and entirely

consistent with the underlying science and the broader IPCC assessment." EPA did not refer to a

rate of recession or a timeframe in which the Himalayan glaciers would be gone.

This error represents one lapse in the deliberate preparation and review of a multi-volume

assessment containing thousands of pages of findings and conclusions. Despite petitioners'

claims to the contrary, the timing of glacier recession in the Himalayas has no impact on the

scientific support for EPA's Endangerment Finding. As noted in Section 2.1., the

Endangerment Finding states (Section II.D):

The Administrator looked first at impacts in the United States itself, and determined that

these impacts are reasonably anticipated to endanger the public health and the welfare of

the U.S. population. That remains the Administrator's position, and by itself 

support her

determination of endangerment.

After careful review, the facts do not substantiate the petitioners' assertion that this error

undercuts EPA's conclusion that the IPCC review process was 'rigorous' or that reliance on the

IPCC, among other assessments, led to errors in EPA's Endangerment Finding.

Comment (2-3):

The Southeastern Legal.Foundation questions the IPCC claim that the conclusions regarding

Himalayan glaciers presented in the AR4 Synthesis Report are "robust, appropriate, and entirely

consistent with the underlying science and the broader IPCC assessment" despite the erroneous

. projection. The Southeastern Legal Foundat.ion states: "The IPCC has now grudgingly retracted

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39 EPA Response to Stay Motion

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the claim of imminent Himalayan glacier melt, though it claims the overall conclusions regarding

glacial melt are robust. How their conclusions can be fake but accurate is not evident."

Response (2-3):

Southeastern Legal Foundation is referring to the following conclusions in the IPCC's 2007

Synthesis Report (IPCC, 2007b, page 49): '

Climate change is expected to exacerbate current stresses on water resources from

population growth and economic and land-use 

change, including urbanization. On a

regional scale, mountain snow pack, glaciers and small ice caps playa crucial role in

freshwater availabilty. Widespread mass losses from glaciers and reductions in snow

cover over recent decades are projected to accelerate thoughout the 21st century,

reducing water availabilty, hydropower potential, and changing seasonality of 

flows in

regions supplied by meltwater from major mountain ranges (e.g. Hindu-Kush, Himalaya,

Andes), where more than one-sixth of 

the world population currently lives.

EPA has reviewed the complete discussion of 

this issue in the AR4, in the Synthesis Report, and

in the contributions of Working Groups I (IPCC, 2007e) and II (IPCC, 2007g). The IPCC cites

numerous studies that document Himalaya and other Asian glacier trends, projections, and

impacts. For example, it references the following findings from a range of studies supporting its

conclusion:

. Glaciers in the Asian high mountains have generally shrunk at varing rates (from Su and

Shi, 2002; Ren et aL, 2004; Solomina et aL, 2004; Dyurgerov and Meier, 2005)-in IPCC

Working Group i Chapter 4 (Lemke et aL, 2007).

. The entire Hindu-Kush-Himalaya ice mass has decreased 

in the last two de.cades. Water

supply in areas fed by glacial meltwater from the Hindu Kush and Himalayas, on which

hundreds of millons of people in China and India depend, wil be negatively affected

(Barnett et aI., 2005)-in IPCC Working Group II Chapter 3 (Kundzewicz et aI., 2007).

. ,The Himalayan glacier Gangotri receded at an average rate of 7.3 meters every year from

1842 to 1935; from 1985 to 2001, it receded at a rate of 

23 meters per year (Hasnain,

2002)-in IPCC Working Group II Chapter 10 (Cruz et aL, 2007).

. Reductions in the mass of a sample of Northern Bemisphere glaciers (including several in

Asia) of up to 60% are projected by 2050 (Schneeburger et aI., 2003)-in IPCC Working

Group II Chapter 3 (Kundzewicz et aL., 2007).

. Rapid melting of glaciers can lead to flooding of riv~rs and the formation of glacial meltwater lakes, which may pose a serious nsk of outburst floods (Coudrai.n et aL, 2005)-in

IPCC Working Group II Chapter 3 (Kundzewicz et aI., 2007).

Thus, EPA finds that the single faulty projection highlighted by petitioners does not compromise

the IPCC's overall assessment of observed glacier loss, projected glacier loss, and the impacts of

glacier loss on water resources in the Himalayas. Numerous studies document a general decline

in Himalayan glacier mass, project substantial future declines, and discuss the impacts of 

these

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40 EPA Response to Stay Motion

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of various climate change scientists were addressed in AR4. She was clearly trying to

acknowledge and respond to their concerns, even to the point of reading blogs to better

understand their arguments when there was no peer-reviewed literature ariculating their points.

In response, Jonathan Overpeck, Tim Osborn, and Keith Briffa discussed a number of options for

presenting their data on normalized temperature anomalies: first extending the timeline to 1500

A.D. to address the concerns with data around 1450 A.D., then extending the time 

line to the

present day to provide even more context for these early data. They discussed and ultimately

decided to modify the graphic to depict the relationship of the MWP to the 20Ui century because

that approach would provide important context for understanding current temperature trends, it

would be "looking at this issue from every angle. And, we're letting others see the issue from

every angle." There is no evidence of bias in this decision. Their presentation of various options,

for the graphic demonstrates their commitment to considering alternative viewpoints and

thoroughness in assessing the science. The e-mails speak for themselves and show no

inappropriate behavior among these individuals. We disagree with the petitioner that these emails indicate that the scientists were trying to present science that is not neutral or were

motivated by a desire to present a "stong case" rather than to present the best science. We

further note that this graphic went through expert and governmental review and was deemed

appropriate for inclusion in the IPCC chapter. The petitioner provided no additional evidence

beyond the text of the e-mails to further justify this allegation.

Thus, these e-mails do nothing more than indicate that three scientists were trying to present a

figure that was comprehensive and offered key contextual information on temperature trends

over the past several centuries. There is nothing inappropriate or biased about that, and the

petitioner has not provided evidence suggesting that there was. When examined in their full

context, the e-mails do not indicate any wrongdoing by the three scientists or support the

petitioner's claims.

Comment (2-23):

In support of their argument that the IPCC is a politicized and biased organization, the

Competitive Enterprise Institute provided a quote from the Environment Minister of India in

which he responds to the incorrect IPCC conclusion of disappearing glaciers by announcing that

India is forming its own independent climate change review panel that wil not depend on IPCC

reports. The Minister stated that "There is a fine line between climate science and climate

evangelism. I am all for climate science but not for climate evangelism. I think people misused

the IPCC report" (Indo-Asian News Service, 2010).

Response (2-23):

See Subsection 2.1.3 in this Volume of the RTP document for EPA's responses regarding the

validity of the IPCC's Himalayan glacier projection and our conclusion that this error does not

undermine the IPCC's broader findings and the technical support for endangerment. '

With respect to the implications ofthe statements from the Indian Environment Minister, Jairam

Ramesh, they clearly show that he disagreed with the specific IPCC Himalayan glacier

projection that has been identified as being an error. His statement indicates that he thought that

the projection was inappropriately developed based on inconclusive science. As described in

Subsection 2.1.3, the IPCC's overall assessment of observed glacier loss, projected glacier loss,

51

41 EPA Response to Stay Motion

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'~(K "', r

and the impacts of glacier loss on water resources in the Himalayas was not compromised by this

single faulty projection. Numerous studies cited by the IPCC document a general decline in

Himalayan glacier mass, project substantial future declines, and discuss the impacts ofthese

changes on water resources and society, which is consistent with the conclusions drawn by the

IPCC.

The evidence provided by the petitioner appears to mischaracterize the Minister's position. The

Minister did not make any statements that support the petitioner's allegation that the IPCC is

biased or politicized. Rather, the Minister expressed his disapproval of the incorrect glacier

projections and stated that India needed to perform its own research related to this issue and

other climate change impacts in the country. Specifically, the Minister stated (Indo-Asian News

Service, 20 i 0):

I respect the IPCC. At the same time India is a large country... we can't depend only on

IPCC. So we have launched the Indian Network on Comprehensive Climate Change

Assessment. It's got 125 research institutions from across the countr. We wil have

international collaborations. It's a kind of an Indian IPCC and not a rival to the IPCC.

We wil do our own assessment.

It is not uncommon for countries to undertke their own climate change assessments, and it is

misleading for the petitioner to imply that the Minister's statements represent a lack offaith in

the IPCC. Finally, even if the statements by the Minister were to be stretched and interpreted as

a comment about the IPCC as a politicized organization, it would be the view of one ,

representative of one country and would not represent the offcial position ofthe 194 countries

that participate in the IPCC. The fact that another countr chooses to complement the IPCC with

another assessment process has no implications for the Endangerment Finding. For example, the

United States has its own climate change science assessment process that is administered by the

USGCRP, and this body has provided excellent and robust information.

Comment (2-24):

The Competitive Enterprise Institute and Ohio Coal Association argue that the IPCC is "not a

scientific organization," that people in the organization realize it is not, and that the IPCC is a

political "organization that reviews and reports science that support its goals." In support of 

their

argument, the petitioner provided a quote from The Guardian (a UK newspaper) which in turn

quoted Anton Imeson, a former IPCC Working Group II author:

The Nobel prize was for peace not science ... government employees wiI use it to

negotiate changes and a redistribution of resources. It is not a scientific analysis of

climate change... For the media, the IPCC assessments have become an icon for

something they are not. To make sure that it does not happen again, the IPCC should

change its name and become part of something else. The IPCC should have never

allowed itself to be branded as a scientific organization.

Response (2-24):

The quote provided by the petitioner comes from a newspaper article in The Guardian (Adam

and Goldenberg, 2010), not a scientific journal or a comprehensive review of 

the IPCC. Imeson

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42 EPA Response to Stay Motion

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considered a range of studies, including those that disagree with the conclusions of 

the

assessment literature.

2.2.3.4 Allegations That ¡PCC Lead Authors Forced Consensus and Suppressed

Dissenting Views

Comment (2-27):

The Southeastern Legal Foundation, the State of 

Texas, Peabody Energy, the Competitive

Enterprise Institute, and the Ohio Coal Association argue that the CRU e-mails (in particular an

e-mail from Phil Jones to Michael Mann expressing their disapproval of 

two new studies

authored by Stephen McIntyre and Ross McKitrick) reveal that the contents ofthe IPCC reports,

in this case Chapter 3 of 

the AR4 Working Group I report (Trenberth et aL., 2007), were altered

to eliminate any suggestion of non-consensus on key issues. Petitioners claim that this occurred

so as to support a specific policy agenda, and that dissenting views were not given appropriate

attention imd consideration. The petitioners also argue that a group of authors have actively tried

to suppress external challenges to consensus.

ReSDonse (2-27):

Although the petitioners draw broad conclusions ofunethical and biased conduct from the e-mail

between Phil Jones and Michael Mann, this e-mail does not show that the two IPCC authors

acted unethically, or that they took any actions to suppress dissenting views; as alleged by the

petitioners. The e-mail at issue was sent on July 8, 2008, and states:

~:;:¡

~~:;.\

Mike,

Only have it in the pdfform. FYI ONLY - don't pass on. Relevant paras are the last 2 in

section 4 on p 13. As I said it is worded carefully due to Adrian knowing Eugenia for

years. He knows the're wrong, but he succumbed to her almost pleading with him to tone

it down as it might affect her proposals in the future! I didn't say any of 

this, so be

careful how you use it _ if at all. Keep quiet also that you have the pdf. The attachment

is a very good paper _ I've been pushing Adrian over the last weeks to get it submitted to

JGR or J. Climate. The main results are great for CRU and also for ERA-40. The basic

message is clear _ you have to put enough surface and sonde obs into a model to produce

Reanalyses. The jumps when the data input change stand out so clearly. NCEP does

many odd things also around sea ice and over snow and ice. The other paper by MM is

just garbage _ as you knew. De Freitas again. Pielke is also losing all credibilty as well

by replying to the mad Finn as well - frequently as 1 see it. I can't see either ofthese

papers being in the next IPCC report. Kevin and I wil keep them out. somehow - even if

we have to redefine what the peer-review literature is!

Cheers Phil20

The e-mail shows that Phil Jones strongly disapproved of 

the quality of the two studies21 and that

he did not deem them to be of suffcient quality and credibilty for inclusion in an lPCC

io E-mail fie 10893 I 8616.txt, (July 8,2008), Page 720, Line 46 ofPDF version entitled: CRU Emails 1996-

2009.pdf ii The paper Jones refers to by "MM" was McKitrick and Michaels (2004). it is not clear what the second paper is,

however it was possibly De Laat and Maurells (2006).

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assessment report. In addition, both of 

the papers were in fact included in the IPCC assessment

report. The "MM" study (McKitrick and Michaels, 2004) is referenced in the IPCC chapter, and

assuming that the second study Jones referred to is De Laat and Maurells (2006), that was

included as well. This disproves the allegations of 

the petitioners that this e-mail is evidence that

dissenting views were suppressed or that the IPCC assessment report was biased by such efforts.

For example, these two studies are discussed in Chapter 3 (Trenberth et a\., 2007): '

McKitrick and Michaels (2004) and De Laat and Maurells (2006) attempted to

demonstrate that geographical patterns of 

warming trends over land are stongly

correlated with geographical patterns of industrial and socioeconomic development,

implying that urbanization and related land surface changes have caused much of 

the

observed waring. '

Thus, the events surrounding the citation ofthe McKitrick and 

Michaels (2004) and De Laat and

Maurells (2006) studies provide stronger support for the proposition that the IPCC assessed and

cited critical literature than for the petitioners' view that these events demonstrate that the IPCC

is biased.

The e-mail between Jones and Mann, which is the only evidence offered by petitioners to support

this allegation, simply does not show that either 1) the contents ofthis chapter, let alone all of 

the

IPCC assessment reports, were altered to eliminate a suggestion of 

none on sensus, or 2) IPCC

authors actively tried to suppress external challenges to consensus. It is not uncommon for

scientists to disagree with the work of others, and this e-mail does not provide evidence that Phil

Jones or any other IPCC author acted unethically or took actions to suppress dissenting views,

notwithstanding the loose talk in the e-maiL.

Our conclusion regarding this e-mail is consistent with the findings of 

the Independent Climate

Change E-mails Review investigation, which concluded ''that it is not uncommon for strongly

, opposed and robustly expressed positions to be taken up in heavily contested areas of science.

We take the view that such behaviour does not in general threaten the integrity of 

peer review or,

publication." The final report ofthe investigation also stated that the panel has "not found any

direct evidence to support the allegation that members ofCRU (in this case Phil Jones) misused

their position on IPCC to seek to prevent the publication of opposing ideas"(Russell, 2010). On

this issue, Brian Hoskins, one of 

three review editors for Chapter 3; provided statements to the

Independent Climate Change E-mails Review that were summarized in the panel's report as

stating (Russell, 2010):

Hoskins confirmed that Las (lead authors), working individually and as small groups,

were responsible for the collation and primar assessment of 

material relevant to the

topics for which they were responsible. The CLAs (convening lead authors) led the

plenary meetings of the writing team prior to production of each of the drafts, led the

process of overall collation of 

the Chapter material and the production of 

the initial drafts

of the First and Second Draft Reports and the Final Draft Report of 

the Chapter. These

drafts were discussed and agreed during plenary meetiIigs of 

the whole writing team.

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44 EPA Response to Stay Motion

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There were a very large number of comments from reviewers, of which a majority were

from a relatively small group. The Review Editors made sure that they were all given

proper consideration, and that they were either responded to by a change in the text or by

an adequate reason for omission that was recorded in the author responses to expert and

governmental review comments. Hoskins, as a Review Editor, took part in the Chapter 3

plenary discussions and ensured that conflcting views were,addressed.

Led by the two CLAs, Jones and Trenberth, the writing team for Chapter 3 was assiduous

in dealing with comments. Hoskins was very impressed by Jones' attention to detail, and

the rigor of the Chapter 3 process.

The levels of confidence and uncertainty reflected in the drafts were based on the

consensus of a group of CLAs and LAs who were chosen for their expertise and

experience in relevant fields. Irrespective of whether a paper is published in a peer

reviewed journal, it is the responsibilty of the whole team to assess whether a

paper's conclusions are robust and to justify whether its arguments should carry weight in

the assessment. These decisions for each draf were taen in plenary sessions ofthe

whole team. Hoskins said that it is inconceivable that a paper making significait claims

relevant to the work of IPCC and the Chapter 3 team would not be considered by the

team as a whole. The basis for rejecting one ofthe papers that is a focus of 

the allegation

is included in ¡PCC records. Decisions about the inclusion ofthe MM2004 (McKitrick

and Michaels) paper would have been taken by the whole team. Jones' voice would have

been one amongst many.

The petitioners do not present scientific evidence or argument showing that the IPCC assessment

is inaccurate or that it does not appropriately reflect the degree of scientific consensus on the

issues discussed. The petitioner's broad conclusion that this is the case is' unsupported by

evidence or arguments on the science and assessment literature itself. Finally, we note that the

science regarding this issue was raised in the comment period for the Endangerment Finding and

responded to in Response 2~29 of the RTC document. Response 2-29 states:

"In the case of de Laat and Maurells (2006) and an earlier paper by McKitrick and

Michaels (2004), IPCC (Trenberth et aL., 2007) assessed these papers and noted that the

locations of greatest socioeconomic development coincided with those most warmed by

atmospheric circulation changes, which are not limited to urban areas but rather have

large-scale coherence. When this is taken into account, IPCC concludes that the

correlation of waring with industrial and socioeconomic development ceases to be

statistically significant."

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EXHIBIT 5

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,.

Climate Change Assessments

Review of the Processes and Procedures of the ¡PCC

Committee to Review the IPCC

I nterAcademy Counc~1

Prepublication Copy-Subject to Further Editorial Revision

47 EPA Response to Stay Motion

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Contents

Executive Summary 1

i Introduction

Current Challenges Facing the IPCC, 8

Committee Approach and Methodology, 11

Overview of the IPCC Assessment Process, 11

Organization of This Report, 16

7

2 Evaluation of IPCC's Assessment Processes

Scoping, 17

Author Selection, 17

Sources of Data and Literature, 19

Handling the Full Range of Views, 20

Report Review, 21

Summary for Policy Makers, 25

Synthesis Report, 26

Conclusions, 26

17

3 IPCC's Evaluation of Evidence and Treatment of Uncertainty

Uncertainty Guidance in the Fourth Assessment Report, 27

Nature of Evidence and Treatment of Uncertinty by Each Working Group, 29

Conclusions and Recommendations, 36

27

4 Governance and Management

IPCC Management Strcture, 39

Conflct of Interest and Disclosure, 45

Communications, 47

Conclusions, 49

39

5 Conclusions

IPCC's Processes and Procedures, 51

Issues for Future Consideration, 55

51

References

59

Appendixes

A Letters of Request to the lAC Co-Chairs

B Questionnaire on IPCC Processes and Procedures

C Contributors to the Review '

D Excerpts oflPCC Procedures'

E Committee Biographies

F Acronyms and Abbreviations

65

73

75

85

95

101

Prepublication Copy-Subject to Further Editorial Revision

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48 EPA Response to Stay Motion

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1

Introduction

The Intergovernmental Panel on Climate Change (IPCe) was established in 1988 by the World

Meteorological Organization (WMO) and the United Nations Environment Programme (UP)

to conduct assessments of the scientific basis for understanding the risk of human-induced

climate change, its potential impacts, and options for adaptation and mitigation (WMO, 1988;

IPCC, 1998).1 An assessment is a process by which independent experts review and synthesize

available scientific and technical knowledge relevant to climate change that is needed by policy

makers to help make decisions (NC, 2007). Thus, the IPCC assessment process sits at the

interface between science and policy and necessarily involves both governments and scientists.

Governments-the Member nations of WMO and UNP-agree on the scope and outline of the

periodic reports, nominate authors, review the results, and approve the Summaries for Policy

Makers. They also select the scientific leaders of the assessment process. More than a thousand

volunteer scientists from around the world-often supported by their universities, government

laboratories, and nongovernental organizations--valuate the available information on climate

change and draft and review the assessment reports. The task is extraordinarily complex because

of the broad scope of the assessment and the fact that it is assembled by a complex,

decentralized, worldwide network of scholars.

IPCC assessments have been instrmental in informing national and international climate policy

options (e.g., Hulme and Mahony, 2010) as well as in raising public awareness of climate

change, which earned the IPCCa share of 

the Nobel Peace Prize in 2007.2 However, amidst an

increasingly intense public debate over the science, impact, and cost of climate change, the IPCC

has come under heightened scrutiny about its neutrality toward specific climate policies (e.g.,

Pielke, 2007) and the accuracy and balance of its reports (e.g., PBL, 2010). The scrutiny reached

a pinnacle in early 2010 when errors, includhig a highly publicized mistake in the melting rate of

Himalayan glaciers, were discovered in the Fourt Assessment Report. The revelation of errors

came on the heels of another highly publicized controversy in which the unauthorized release of

email exchanges between prominent climate scientists at the University of East Anglia and

elsewhere, many of whom had contributed to ipce assessments, purported to show attempts to

misrepresent some climate data (e.g., Oxburgh et aL., 2010). Although many scientists noted that

neither the leaked emails nor the IPCC errors undermined the principal scientific findings

regarding human contributions to climate change (Gleick et aI., 2010), public opinion polls in the

United States and United Kingdom showed that public confidence in climate science has waned

(e.g., BBC, 2010; Jasanoff, 2010; Jowit, 2010).

In this context, Ban Ki-moon, Secretary-General of the United Nations, and Rajendra Pachauri,

Chairman of the IPCC, requested the InterAcademy Council (IAC) to conduct an independent

review of IPCC processes and procedures used to produce assessments (Appendix A). The

Committee established by the lAC was asked to review ¡PCC procedures for preparing

i The scientific and political motivations for estblishing the ¡PCC aTe discussed in Hecht and Tirpak (1995),

Agrawala (1998 a, b), and Bolin (2007). 2 See http://nobelprize.org/nobelyrizes/peace/laureates/2007 I.

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49 EPA Response to Stay Motion

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assessment reports, the management and administrative structure of IPCC~ and IPCC strategies

for communicating with the media and public, and to make recommendations for stengthening

the IPCC in these areas. The specific tasks to the Committee are presented in Box i. i.

BOX 1.1 Committee Statement of Task

The Committee wil perform the following tasks:

1. Review the IPCC procedures for preparing assessment reports including, but not restricted to:

a. Data quality assurance and data quality control;

b. Guidelines for the types of literature appropriate for inclusion in IPCC assessments, with special

attention to the use of non-peer-reviewed literature;

c. Procedures for expert and governmental review of IPCC materials;

d. Handling of the full range of scientific views; and

e. Procedures for correcting errors identified atter approval, adoption, and acceptance of a report.

2. Analyze the overall IPCC process, including the management and administrative functions within

IPCC, and the role of UNEP and WMO, the United Nations system and other relevant stakeholders, with

a view to strengthen and improve the effciency of the assessment work and effectively ensure the

consistent application of the IPCC procedures.

3. Analyze appropriate communication strategies and the interaction of IPCC with the media to ensure

that the public is kept apprised of its work.

4. Prepare a report on the outcome of the activities referred to above, including:

a. Methodology of the report preparation and measures taken to ensure high quality of the report

findings;

b. Recommendations for amendments to the IPCC procedures;

c. Recommendations conceming strengthening the IPCC process, institutions and' management

functions;

d. Any other related recommendations; and

e. Outline of a plan for the implementation of recommendations.

This report examines the procedures and processes used to carr out IPCC assessments; it does

not examine climate change science or the validity of its representation in the assessment reports.

It also does not consider' the work of IPCC's Task Force on National Greenhouse Gas

Inventories, which is not par of the climate assessment process.

CURNT CHALLENGES FACING mE IPCC

Carring out an intergovernmental climate assessment is an inherently difficult tak. It involves

many thousands of p~ople with different expertise, cultures, interests, and expectations. The

available infonnation on climate change is extensive, multidisciplinary, and multinational in

nature; extends across multiple spatial and temporal scales; is subject to different interpretations;

and has a wide range of uncertainties. In fact, a great deal remains to be discovered. The

processes and procedures for carring out the assessment must be detailed but not overly

prescriptive. And while government representatives must have an importt role in the

assessment, they must car out their role without asking scientists to address questions that are

beyond the scientific frontier or distorting the scientific findings.

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50 EPA Response to Stay Motion

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The extent to which results are quantified and mtasurement or model uncertinty is presented

differs significantly across the chapters of 

the Working Group II report. For example, Chapter 5

(Food, Fibre, 

and Forest Products) presents estimates of the quantitative impacts of specific

changes in temperature and precipitation on forests and agriculture, based on existing models. IIi

contrast, Chapter 8 (Human Health) focuses on qualitative descriptions of the 

literature linking

climate to mortality and morbidity, such as the direction of climate effects on health outcomes

and the relative magnitudes of impacts.

The extent to which results are quantified also differs in the Working Group II Summary for

Policy Makers and the Technical Summar. The Summary for Policy Makers presents

quantitative information on the extent of agreement between different physical and biological

trends and trends in temperature. Conclusions about observed impacts of climate on the natural

and human environments and about future impacts (sections Band C ofthe Summary for Policy

Makers) are usually stated in qualitative terms using the confidence and likelihood scales. No

additional information is presented to characterize the uncertinty in the results of individual

studies or to indicate the range of estimates across studies. In contrast, the Technical Summary

includes more quantitative information about uncertainty. An ilustrative figure in the Technical

Summar (Figure TS.7 in IPCC, 2007b), for example, shows a range of estimates of the impact

of temperature on yield changes by crop and latitude, with and without adaptation.

The Summary for Policy Makers primarily uses the confidence scale in Table 3.2, which is

intended to be used when there is "high agreement, much evidence" in the literature. However,

many of the conclusions in the "Current Knowledge 'about Future Impacts" section of the

Working Group II Summar for Policy Makers are based on unpublished or non-peeNeviewed

literature. For example, the following conclusions, each of which was based on a small number

of unpublished studies, have been questioned (e.g., PBL, 2010):

Towards the end of the 21 st century, projected sea-level rise wil affect low-lying coastal areas with

large populations. The cost of adaptation could amount to at least 5-10% of GDP. (High confidence;

IPCC, 2007b, p. 13)

Agricultural production, including access to food, in many African countries and regions is projected

to be severely compromised by climate variabilty and change. The area suitable for agriculture, the

length of growing seasons and yield potential, paricularly along the margins of semi-arid and arid

areas, are expected to decrease. This would further adversely affect food security and exacerbate

malnutrition in the continent. IIi some countries, yields from rain-fed agriculture could be reduced by

up to 50% by 2020. (High confidence; IPCC, 2007b, p. 13)

The use of the level-of-understading scale (Table 3.1), rather than the confidence scale (Table

3.2), would have made clear the weak evidentiary basis for these statements.

Another issue is whether it is appropriate to use quantitative subjective probabilties when

statements are qualitative in nature or imprecisely stated. Many of the 71 

conclusions in the

"Current Knowledge about Future Impacts" section of the Working Group II Summar for

Policy Makers are imprecise statements made without reference to the time period under

consideration or'to a climate scenario under which the conclusions would be true. Consider, for

example, the statement:

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51 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 51
The extent to which results are quantified and measurement or model uncertinty is presented

differs significantly across the chapters of the Working Group II report. For example, Chapter 5

(Food, Fibre, 

and Forest Products) presents estimates of the quantitative impacts of specific

changes in temperature and precipitation on forests and agriculture, based on existing models. Iri

contrast, Chapter 8 (Human Health) focuses on qualitative descriptions of the 

literature linking

climate to mortlity and morbidity, such as the direction of climate effects on health outcomes

and the relative magnitudes of impacts.

The extent to which results are quantified also differs in the Working Group II Summary for

Policy Makers and the Technical Summar. The Summary for Policy Makers presents

quantitative information on the extent of agreement between different physical and biological

trends and trends in temperature. Conclusions about observed impacts of climate on the natural

and human environments and about future impacts (sections Band C of 

the Summary for Policy

Makers) are usually stated in qualitative teris using the confidence and likelihood scales. No

additional information is presented to characterize the uncertinty in the results of individual

studies or to indicate the range of estimates across studies. In contrast, the Technical Summary

includes more quantitative information about uncertainty. An ilustrative figure in the Technical

Summary (Figure TS.7 in IPCC, 2007b), for example, shows a range of estimates of the impact

oftemperature on yield changes by crop and latitude, with and without adaptation.

The Summary for Policy Makers primarily uses the confidence scale in Table 3.2, which is

intended to be used when there is "high agreement, much evidence" in the literature. However,

many of the conclusions in the "Current Knowledge 'about Future Impacts" section of the

Working Group II Summar for Policy Makers are based on unpublished or non-peer-reviewed

literature. For example, the following conclusions, each of which was based on a small number

of unpublished studies, have been questioned (e.g., PBL, 2010):

Towards the end of the 21st century, projected sea-level rise wil affect low-lying coastal areas with

large populations. The cost of adaptation could amount to at least 5- 1 0% of GDP. (High confidence;

IPCC, 2007b, p. 13)

Agricultural production, including access to food, in many African countres and regions is projected

to be severely compromised by climate variabilty and change. The area suitable for agriculture, the

length of growing seasons and yield potential, paricularly along the margins of semi-arid and arid

areas, are expected to decrease. This would further adversely affect food security and exacerbate

malnutrition in the continent. In some countries, yields from rain-fed agriculture could be reduced by

up to 50% by 2020. (High confidence; IPCC, 2007b, p. 13)

The use of the level-of-understading scale (Table 3.1), rather than the confidence scale (Table

3.2), would have made clear the weak evidentiary basis for these statements.

Another issue is whether it is appropriate to use quantitative subjective probabilties when

statements are qualitative in nature or imprecisely stated. Many of the 71 

conclusions in the

"Current Knowledge about Future Impacts" section of the Working Group II Summar for

Policy Makers are imprecise statements made without reference to the time period under

consideration or-1o a climate scenario under which the conclusions would be tre. Consider, for

example, the statement:

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51 EPA Response to Stay Motion

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5

Conclusions

IPCC'S PROCESSES AN PROCEDURES

The Committee concludes that the IPCC assessment process has been successful overall and has

served society well. The commitment of many thousands of the world's leading scientists and

other experts to the assessment process and to the communication of the nature of our

understandirig of the changing climate, its impacts, and possible adaptation and mitigation

strategies is a considerable achievement in its own right. Similarly, the sustined commitment of

governments to the process and their buy-in to the results is a mark of a successful assessment.

Through its unique partnership between scientists and governments, the IPCC has heightened

public awareness of climate change, raised the level of scientific del?ate, and influenced the

science agendas of many nations. However, despite these successes, some fundamental changes

to the process and the management strcture are essential, as discussed in this report and

summarized below.

Summary of Recommendations

Modernizing the management structure. Since its inception more than two decades ago, the

governance and basic elements of the management structure of the IPCC have changed very

little. Meanwhile, the magnitude and complexity of the assessment task has increased and new

demands are being made for increased transparency and accountabilty. Best practices in other

organizations provide a model for the ¡PCC to renew its governance and management structure.

Key elements of this structure include the establishment of an Executive Committee to act on,

behalf of the Panel between Plenary sessions, the appointment of a senior scientist as Executive

, Director to lead the Secretariat, and the institution of conflct of interest policies for major

players in the ¡PCC assessment process. Moreover, the architecture of the Secretariat should be

reevaluated to ensure that its responsibilties can be caried out effectively. As part of this

reevaluation, the roles and responsibilties of key participants, including the IPCC Chair, should

be clearly defined. A limit of one term for key ¡PCC leaders, including the IPCC Chair, Working

Group Co-chairs, and the proposed Executive Director, would ensure a greater infusion of fresh

perspectives on the assessments.

Recommendations:

. The IPCC should establish ,an Executive Committee to act on its behalf between Plenary

sessions. The membership of the Committee should include the ¡PCC Chair, the Working

Group Co-chairs, the senior member of the Secretariat, and 3 independent members,

including some from outside of the climate community. Members would be elected by the

Plenary and serve until their successors are in place.

. The ¡PCC should elect an Executive Director to lead the Secretariat and handle day-to-day

operations of the organization. The term of this senior scientist should be limited to the

time frame of one assessment.

. The ¡PCe should redefine the responsibilties of key Secretariat positions both to improve

effciency and to allow for any future senior appointments.

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52 EPA Response to Stay Motion

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c '-ill,: 

, """." :'

EXHIBIT 6

: ~- i.

~J. .

53 EPA Response to Stay Motion

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~:. '.'; : - - - : .'...... . '.- .:-,....

Technical Support Document for

Endangerment and Cause or

Contribute Findings for

Greenhouse Gases under

Section 202(a) of the

Clean Air Act

December 7 i 2009

Climate Change Division, Office of Atmospheric Programs

U.S. Environmental Protection Agency

, Washington, DC

54 EPA Response to Stay Motion

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Table of Contents

Executive Sum mary .... .............. .......... .............. ..... ............... ......... ........ ..... ....... ....... ..... ...... ES-1

I. Introduction

1. Introduction and Bac kground .....................................................................................................2

a. Scope and Approach of This Document.................................................................................. 2

b. Data and SCientific Findings Considered by EPA.................................................................. 4

c. Roadmap for This Document ......................................................................................ò.......... 8

II. Greenhouse Gas Emissions

2. Greenhouse Gas Emissions and Concentrations .................................................................... 11

a. U.S. and Global Greenhouse Gas and Selected Aerosol Emissions................................... 11

b. Lifetime of Greenhouse Gases in the Atmosphere ............................................................. 16

c. Historic and Current Global Greenhouse Gas Concentrations ............................................ 17

II. Global and U.S. Observed and Projected Effects From Elevated Greenhouse Gas

Concentrati ons

3. Direct Effects of Elevated Greenhouse Gas Concentra.tions............................................... 21

4. Radiative Forcing and Db served Climiite Change ........................................................23

a. Radiative Forcing Due to Greenhouse Gases and Other Factors ..........................................23

b. Global Changes in Temperature ............................................................................................26

c. U.S. Changes in Temperature...............................................................................................32

d. Global Changes in Precipitation......................................................................................... 34

e. U.S. Changes in Precipitation................................................................................................ 35

f. Global Sea Level Rise and Ocean Heat Content............................................................ 35

g. U.S. Sea Level Rise .................................... ..........;.. ...................... ........... ............. ........ 37

h. Global Ocean Acidification ..... ..... ...... ........ ...... ..... ...... ... ........... .... .... ................. ........ ............. 38

i. Global Changes in Physical and Biological Systems ............................................................. 38

j. U.S. Changes in Physical and Biological Systems ............................................................. 41

k. Global Extreme Events ................ ...... .................. ..... ................. .... ....... ...............................; 43

i. U.S. Extreme Events ......................................................................................................... 44

5. Attibution of Dbserved Climate Change to Anthropogenic Greenhouse Gas Emissions at

the Global and Continental Scale ....,.....,.....................................................................".............47

a. Attbution of Observed Climate Change to Anthropogenic Emissions .............................. 47

b. Attibution of Observed Changes in Physical and Biological Systems.................................. 53

6. Projected Future Greenhouse Gas Concentrations and Climate Change ............................ 55

a. Global Emissions Scenarios and Associated Changes in Concentrations and Radiative

Forcing .......................................... .;............................... ..................................................... 55

b. Projected Changes in Global Temperature, Precipitation Patterns, Sea Level Rise, and Ocean

Ac idi fication ......................................................................................................................... 63

c. Projected Changes in U.S. Temperature, Precipitation Patterns, and Sea Level Rise............ 68

d. Cryosphere (Snow and Ice) Projections, Focusing on North America and the United States. 72

e. Extreme Events, Focusing on North America and the United States. .................................. 73

ii

55 EPA Response to Stay Motion

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....

.-,.:,..,

f. Abrupt Climate Change and High-Impact Events................................................................. 75

g. Effects on/from Stratospheric Ozone ................................................................................ 78

h. Land Use and Land Cover Change....................................................................................... 80

IV. U.S. Observed and Projected Human Health and Welfare Effects from Climate Change

7. Human Health ,........................,.................................................................................................... 82

a. Temperature Effects ............................................................................................................. 83

b. Extreme Events....... ....... .......... ........ ................................... ..... ......... ............... ........ ............. 85

c. Climate-Sensitive Diseases ...... ................. ......... .................... ........... ................ .......... ..... ..... 86

d. AeroaIlergens.................................... .............................;........................................................ 88

8. Air Qua lity .................................................................................................................................... 89

a. Tropospheric Ozone .............................................................................................................89

b. Pariculate Matter ........... .............. ..................~........ .................... ........................ ............... 93

c. Health Effects Due to CO2-Induced Increases in Tropospheric Ozone and Pariculate

Matter. .. .... ........ ......;... .............. ........ ........... ...................... ............. ............................. ....¡ ..96

9. Food Production and Agriculture ......................................,......................................,................97

a. Crop Yields and Productivity ............................................................................................. 98

b. Irrigation Requirements........... ...... ........... .......... .................. .............;................. ................ 100

c. Climate Variabilty and Extreme Events ............................................................................. 10 i

d. Pests and Weeds ........... ..... .............. .............. ...... ..................... ..................... ........... ....... i 0 i

e. Livestock ...... .................... .............. ........................ ................ ...... ........ ........... ...... ............ 102

f. Freshwater and Marine Fisheries......~............................................................................ 103

10. Forestry ...."".,.".."".,."....,....".....,....,.............. ,...............................,.......,.,.........................,...... i 04

a. Forest Productivity .............................................................................................................. 105

b. Wildfire and Drought Risk .................................................................................................. 106

c. Forest Composition ...........................................................................~............................... 108

d. Insects and Diseases .......................................................................................................... 108

i 1. Water Resources .......,..,.........,...................................................................................................110

a. Water Supply and Snowpack ............................................................................................ 110

b. Water Quality ........... ...... ............................. ...................... ............................ ....... ........... 1 13

c. Extreme Events....... ........... ...,.......... .....;............................... ......................... .......... ........... 1 15

d. Implications for Water Uses ...........:................................................................................ 1 16

i 2. Sea Level Rise and Coastal Areas..................................................................................... 117

a. Vulnerable Areas ...... .......... .......... ............................... ............. .................................. 1 17

b. Extreme Events............ ......... .... ....... ........ ................. ..................... ....... ............................. 120

i 3. Energy, Infrastructure, and Settlem ènts ............................................................................ 122

a. Heating and Cooling Requirements.................................................................................... 122

b. Energy Production ......... .... ...... ..... .............. .......... .... ....... ......... ........... ................. ........... ..... 123

c. Infrastrucnire and Settlements ....... ............. .................. .......... ....... ........... ......................... 125

i 4. Ecosystems aDd Wildlife ................................ .............................................................. 131

a. Ecosystems and Species .................................................................................................... 13 i

b. Ecosystem Services ................................................................ ........................................... 138

c. Extreme Events....... .............. ........... ............... .............. ........ ... .... ........... ........ ...:................... 139

iv

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'!.l-:-. :"~ë ~ , -'-.." ,.," . 'c.-._"."'-_'___'_''::':'

d. Implications for Tribes ........... ............. ....................... ..................................... .......... ...... 139

e. Implications for Tourism....................................................................................................140

15. U.S. Regional Climate Change Impacts ..................................................................ò............ 141

a. Northeast ......... .............. ...... .......... ............... ................... .................................................... 142

b. Southeast .......; ...... .............. ........... ;................. ................ ...... ..... ............................ ......... 143

c. Midwest .......................................... ............... ..,.................................................................. 144

d. Great Plains ............... ................................... ...... ..... .......... ........................ ........... .......... 146

e. Southwest ....... ...... ........... .............. ........... ........ ................. .................... ..... ....................... 148

f. Northwest ..... .................... .......................... ..... .............. ................. ........... .............. ......... 150

g. Alaska ........... ........... ........... .......... ........ ............ .............. ........ ...... .............. ............... ........... 152

h. Islands........... ........... ..................................... ............ ....... ....... ........... ...... ................. ...... ....... 153

V. Observed and Projected Human Health and Welfare Effects From Climate Change in

Other World Regions

16. Impacts in Other World Regions ..............;...................................................................... 157

a. National Security Concerns ............................................................................................... 157

b. Overview of International Impacts ....................................................................................... 159

References....,............................."..,....................................................... n............................... 164

Appendix A: Brief Overview of Adaptation .....................................;.........................176

Appendix B: Greenhouse Gas Em issions From Section 202(a) Source Categories ......180

Appendix C: Direct Effects of GHGs on Human Health..................................................... 195

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4(e) U.S. Changes in Precipitation

Data35 analyzed from NOAA show that over the

contiguous United States, total anual precipitation

increased at an average rate of 6. i % per century from

, i 90 i -2008, and about 5% over the last 50 years (Karl

et ai', 2009). As shown in Figure 4.5 displaying

regional data36, the greatest incre,ases in precipitation

were in the East North Central climate region (9.6%

per century), the Northeast (9.8% per century) and the

, South (10.5%). Precipitation increased in the Southeast

by- 1.%, the Centrl United States by 7.2%, the West

North Central by 4.0%, the Southwest by 3.7%, the

West by 3.8%, and the Northwest by 4.1 %.

Outside the contiguous United States, Hawaii

experienced a decrease of 5.4% per century (since

records begin in 1905). Precipitation over Alaska (not

shown due to limited data coverage) has a decreasing

long-tenn trend, but with significant variabilty over

time and space.

Despite the overalI national trend towards wetter

conditions, a severe drought has affected the southwest

United States from i 999 through 2008 (see Section

4(1)), which is indicative of significant variabilty in

regional precipitation patterns over time and space.

4(l) Global Sea Level Rise and Ocean Heat

Content

Global Sea Level Rise

. ~-~

. ~.'-~'-;, ~:.. - .\: ~

"~

Figure 4.5: Map of the United States, Depicting

Precipitation Trends for the Contiguous

United States 1901-2008 and Hawaii 1905-

200834

Centl

Norteast

1(l HawaII

, '.

Change In preclpllatlon (% par century):

. . . . (;!'t t.,.,.". . . . . .

-6.50-40-30.20.10 0 1020304050 60

Gray Interval: .210 2%

Green shades indicate a trend toward wetter conditions

over the period. and brown shades indicate a trend

toward dryer conditions. No data are available for areas

shaded white.

There is strong evidence that global sea level gradualIy rose in the 20th century and is currently rising at

an increased rate, after a period of little change between AD 0 and AD i 900 (I PCC, 2007a).

According to Bindoff et al. (2007), there is high confidence that the rate of sea level rise increased

, between the mid-19th and mid-20th centuries. The average rate of sea level rise measured by tide gauges

from i 96 i to 2003 was 0.07 i :l 0.02 inch (0.18 :t 0.05 cm) per year (Bindoff et ai', 2007). The global

average rate of sea level rise measured by satelIte altimetry during 1993 to 2003 was 0.12 :l 0.03 inch

(0.3 i :l 0.07 cm) per year (Bindoff et ai', 2007). Coastal tide gauge measurements confirr this

observation. It is unclear whether the faster rate for 1993 to 2003 is a reflection of short-tenn variabilty

34 Data for U.S. precipittion map obtained from NOAA's NCDC. Data may be downloaded from:

htt:/ /ww.epa.gov/climatechange/endangennent/data.html (see fie: us-precip-map- fig4-5- i 90 i -2008-noaa.pdt).

35 Data for contiguous U.S. precipitaton time series analysis obtained from NOAA's National Climatic Data Center.

Data may be downloaded from: htt://ww.epa.gov/cJiratechange/endan~ennent/data.html(see file: us-preciptime-series- i 90 i -2008-noaa. pdt). 36 Data for U.S. regional precipitation time series analysis obtained from NOAA's National Climatic Data Center.

Data may be downloaded from: http://ww.epa.gov/cliratechange/endangennent/data.html(see fie: us-regionalprecip-time-series- i 90 i -2008-noaa.pdt).

35

58 EPA Response, to Stay Motion

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. ' "__4"' -.-t..-, :'

or an increase in the longer-term trend (Bindoff et aI., 2007). The total 20lh century sea level rise is

estimated to be 6.7 :t 2 inches (17:1 5 (cm)) (Bindoff et aI., 2007). Sources of uncertainty in measuring

global average sea level. rise include the adjustment for vertical land movements in tide gauge data and '

the proper accounting for instrmental bias and drifts in satellte altimetr data (Bindoffet aI., 2007).

Two major processes lead to changes in global mean sea level on decadal and longer time scales: i)

thermal expansion, and ii) the exchange of water between oceans and other reservoirs (glaciers and ice

caps, ice sheets, and other land water reservoirs). It is believed that on average, over the period from

i 96 i to 2003, thermal expansion contributed about one-quarter of the observed sea level rise, while

melting of land ice accounted for less than half; the full magnitude of the observed sea level rise was not

satisfactorily explained by the available data sets (Bindoff et aI., 2007). During this period, global ocean

temperature rose by 0.18°F (O.IO°C) from the sudace to a depth of 2,300 ft (700 m), contributing an

average of 0.016 :t 0.004 inch (0.04 :I 0.01 cm) yr-J to sea level rise (Bindoff et aI., 2007). The

contribution from ice was approximately 0.028 :t 0.02 inch (0.07:l 0.05 cm) yr-I (Lemke et ai., 2007).

In recent years (1993-2003), during which the observing system has been much better, thermal expansion

and melting of land ice eaçh account for about half of the observed sea level rise, although there is some

uncertainty in the estimates. Thermal expansion contributed about 0.063 :t 0.02 inch (0.16:1 0.05 cm) per

year, reflecting a high rate of waring for the period relative to 196 I to 2003 (Bind off et aI., 2007). The

total contribution from melting ice to sea level change between 1993 and 2003 ranged from 0.047:t 0.016

inch (0.12 :l 0.04 cm) per year. The rate increased over the 1993 to 2003 period primarily due to

increasing losses from mountain glaciers and ice caps, from increasing surface melt on the Greenland Ice

Sheet, and from faster flow of part of the Greenland and Antarctic Ice Sheets (Lemke et aI., 2007).

Thermal expansion and exchanges of water between oceans and other reservoirs cause changes in the

global mean as well as geographically non-uniform sea level change. Other factors influence changes at

the regional scale, including changes in ocean circulation or atmospheric pressure, and geologic processes

(Bindoff et aI., 2007). Satellte measurements (for the period 1993-2003) provide unambiguous evidence

of regional variabilty of sea I~vel change (Bindoff et aI., 2007). In some regions, rates of rise have been

as much as several times the global mean, while sea level is fallng in other regions. According to the

IPCC (Bindoff et aI., 2007), the largest sea level rise since i 992 has taken place in the western Pacific and

eastern Indian oceans, while nearly all of the Atlantic Ocean shows sea level rise during the past decade

with the rate of rise reaching a maximum (over 0.08 inch (0.2 cm) yr-I) in a band running east-northeast

from the U.S. east coast. Sea level in the eastern Pacific and western Indian oceans has been fallng.

Ocean Heat Content

The thermal expansion of sea water is an indicator of increasing ocean heat content. Ocean heat content is

also a critical variable for detecting the effects of the observed increase in GRGs in the Earh's

atmosphere and for resolving the Eart's overall energy balance (Bindoff et aI., 2007). For the period

1955 to 2005, Bindoff et al. (2007) analyze multiple time series of ocean heat content and find an overall

increase, -while noting interannual and inter-decadal variations'. NOAA's report State of the Climate in

2008 (Peterson and Baringer; 2009), which incorporates data through 2008, finds "large" increases in

global ocean heat content since the 1950s and notes that over the last several years, ocean heat content has

reached consistently higher values than for all prior times in the record.

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4(g) U.S. Sea Level Rise

Sea levei37 has been rising 0.08 to O. I 2 inch yl-1 (0.2 to 0.3 cm yl-I) along most of the U.S. Atlantic and

Gulf coasts, as seen in Figure 4.6. During the past 50 years, sea level has risen up to 8 inches (20 cm) or

more along some coastal areas, and has fallen in other locations (Karl et aL., 2009). The rate of sea level

rise varies from about 0.36 inch per year (i cm yr-I) along the Louisiana Coast (due to land sinking), to a

drop of a few inches per decade in par of Alaska (because land is rising). Records from the coast of

California indicate that sea levels have risen almost 7.1 inches (18 cm) during the past century (California.

Energy Commission, 2006). According to the CCSP (2009b), in the Mid-Atlantic region from New York

to North Carolina, tide-gauge observations indicate that relativè sea level rise (the combination of global

sea level rise and land subsidence) rates were higher than the global mean and generally ranged between

0.094 and O. i 7 inch (0.24 and 0.44 cm) yl-I, or about i inch (2.54 cm) over the 20ih century.

Figure 4.6: Relative Sea Level Changes on United States Coastlines, 1958 to 2008.

Source: Karl et al. (2009) Observed changes in relative sea level from 1958 to 2008 for locations on the United

States coast.

37 U.S. sea level data obtained from the Permanent Service for Mean Sea Level (htt://ww.pol.ac.uk/psmsl/ ofthe

the Proudman Oceanographic Laboratory.

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Rosenzweig et al. (2007) document studies that find 75% of the shoreline, when the influence of spits,

tidal inlets, and engineering structures is removed, is eroding along the U.S. East Coast probably due to

sea level rise. They also cite studies reporting losses in coastal wetlands observed in Louisiana, the MidAtlantic region, and in part of New England and New York, in spite of recent protective environmental

regulations.

4(b) Global Ocean Acidification

OCean waters can absorb large amounts of CO2 from the atmosphere because when the gas dissolves in

water it fonns a weak acid, and the minerals dissolved in the ocean have created, over geologic time, a

slightly alkaline ocean, with surface pH ranging from 7.9 to 8.25. The amount of carbon contained in the

oceans has increased due to the elevated atmospheric pressure of CO2 from anthropogenic emissions

(Denman et aI., 2007). The IPCC estimates that the total inorganic carbon content of 

the oceans increased

by i 18 f: 19 gigatonnes of carbon (GtC) between i 750 and i 994 and continues to increase (Bindoff et aI.,

2007). This absorptive capacity of the oceans has resulted in atmospheric CO2 concentrations

substantially lower than they otherwise would be. Since the beginning of the Industial Revolution,

global average sea surface pH has dropped by about 0.1 pH units, with the lowest decrease (0.06) in the

tropics and subtropics, and the highest decrease (0. i 2) at high latitudes, consistent with the lower buffer

capacity of the high latitudes compared to the low latitudes (Bindoff et aI., 2007). This average pH

decline of O. i pH unit corresponds to a 30% increase in the concentration of hydrogen ions (Denman et

aI., 2007).

Ocean acidification is causing a series of cascading changes to the chemistr of ocean water, including a

decrease in the saturation state of calcium carbonate. Marine calcifiers, such as corals, are.dependent

upon this mineral to fonn shells, skeletons, and other protective stctures. Reduced availabilty of

calcium carbonate can slow or even halt calcification rates in these organisms (Fischlin et at, 2007). The

availabilty of carbonate is also importnt because it controls the'maximum amount of CO2 that the ocean

is able to absorb (Bindoff et aI., 2007, p. 406). More infonnation, regarding ocean acidification

projections and effects on marine ecosystems can be found in Sections 6(b) and 14(a), respectively.

Ocean acidification is a direct consequence offossil fuel CO2 emissions, which are also the main driver of

the anticipated climate change (Denman et aI., 2007).

4(i) Global Cbanges in Pbysical and Biological Systems

Physical and biological systems on all continents and in most oceans are already being affected by recent

climate changes, paricularly regional temperatue increases (very high confidence) (Rosenzweig et aI.,

2007). Climatic effects on human systems, although more diffcult to discern due to adaptation and nonclimatic drivers, are emerging (medium confidence) (Rosenzeig et aI., 2007). The majority of evidence

comes from mid- and high latitudes in the Northern Hemisphere, while documentation of observed

changes in tropical regions and the Southern Hemisphere is sparse (Rosenzweig et at, 2007). Hence, the

findings presented in this section apply generally to the globe but most directly to Europe and Nort

America (including the United States) where these observational studies were conducted. The extent to

which observed changes discussed here can be attbute to anthropogenic GHG emissions is discussed in

Section 5.

Cryosphere (Snow and Ice)

"

Observations of the cryosphere (the "frozen" component of the climate system) have revealed changes in

sea ice, glaciers and snow cover, freezing and thawing, and pennafrost. The following physical changes

have been observed:

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conclude: "It is very likely that glacial-interglacial CO2 variations have strongly amplified climate variations, but it is

unlikely that CO2 variations have trggered the end of glacial periods. Antactic temperatures stared to rise several

centuries before atmospheric CO2 during past glacial terminations." CO2 (and other GHG) changes over glacial to

interglacial trsitions, therefore, contribute to, but do not initiate, the temperature changes seen.

A variety of proxy records provide temporal and spatial information concerning climate change during the current

interglacial, the Holocene, which began approximately 11.6 thousand years ago. Jansen et ai. (2007) find evidence

for local multi-centemiial periods warer than the last decades by up to several degrees in the early to midHolocene, but note that these local warm periods were very likely not globally synchronous and that the tendency

for high-latitude summer temperature maxima to occur early in the Holocene (8,000-10,000 years ago) points to a

direct influence òf orbital forcing on temperature, rainfall, and sea ice extent. According to the ¡PCC (Jansen et aI.,

2007), current data limitations limit the abilty to determine if there were multi-decadal periods of global warth

comparable to the last half of the 20ih century prior to about i ,000 years ago.

The IPCC (Hegerl et ai', 2007) reports that analyses of paleoclimate have increased confidence in the role of

external influences on climate, and that key features of past climates have been reproduced by climate models using

boundar conditions and radiative forcin~ for those periods.

Climate model simulations by the IPCC, shown in Figure 5. l, suggest natural forcingsalone canot

explain the observed warming (for the globe, the global land and global ocean). The observed warming

can only be reproduced with models that contan both natual and anthropogenic forcings.

Figure 5.1: Comparison of Observed Global-Scale Changes In Surface Temperature with

Results Simulated by Climate Models Using Natural and Anthropogenic Forclngs

Gloiial

:1.0

E" l ' ~1d~

C'

~i'0.5

:'L! '

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" ',.'" "_:.

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,,-,

Glal.át'()C.~a.ri'

~

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Source: IPCC (2007d). Decadal averages of observations are shown for the period 1906 to 2005 (black

line) plotted against the centerofthe decade and relative to the corresponding average for 1901t01950.

Lines are dashed where spatial coverage is less than 50%. Blue shaded bands show the 5 to 95% range

for 19 simulations from five climate models to using only the natural forcings due to solar activity and

volcanoes. Red shaded bands show the 5-95% range for 58 simulations from 14 climate models using

both natural and anthropogenic forcings.

Additional evidence documented in the IPCC report supports its statement linking warming to increasing

concentrations ofGHGs (Hegerl et aI., 2007):

. Warming of, the climate system has been detected in changes of surface and atmospheric

temperatures, in the upper several hundred meters of the ocean (as evident by the observed increase in

ocean heat content, see Section 4(f)), and in contributions to sea level rise. Attibution studies have

established anthropogenic contrbutions to aII of these changes.

49

62 EPA Response to Stay Motion

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./:~-- .

')"ll.

r

. Analyses of paleoclimate data have increased confidence in the role of external influences on climate.

Coupled climate models used to predict future climate have been used to reproduce key features of

past climates using boundar conditions and radiative forcing for those periods.

The IPCC states that it is very unlikely that the global pattern of warming observed during the past half

century is due to only known natural external causes (solar activity and volcanoes) since the warming

occurred in both the atmosphere and ocean and took place when natural external forcing factors would

likely have produced cooling (Hegerl et aI., 2007). It also states GHG forcing alone would likely have

resulted in warming greater than observed if there had not been an offsetting cooling effect from aerosols

and natural forcings during the past half century (Hegerl et aI., 2007). Solomon et al. (2007) and Karl et

al. (2009) indicate the sum of solar and volcanic forcing in the past half century would likely have

produced cooling, not warming.

Not only has an anthropogenic signal been detected for the surface temperatures, but evidence has also

accumulated of an anthropogenic influence through the vertical profile of the atmosphere. Fingerprint

studies40 have identified GHG and sulfate aerosol signals in observed surface temperature records, a

stratospheric ozone depletion signal in strtospheric temperatures, and the combined effects of these

forcing agents in the vertical strctue of atmospheric temperature changes (Karl et ai., 2006). Karl et al.

(2009) state that more recent studies have also found human fingerprints in the patterns of change in

Arctic and Antarctic temperatures. However, án important inconsistency may have been identified in the

tropics. In the tropics, most observational data sets show more warming at the surface than in the

troposphere, while almost all model simulations have larger warming aloft than at the surface (Karl et aI.,

2006). Karl et al. (2009) state that when uncertinties in models and observations are properly accounted

for, newer observational data sets are in agreement with climate model results.

The IPCC states that the substantial anthropogenic contribution to surfac,e temperature increases likely

applies to every continent except Antarctica (which has insuffcient observational coverage to make an

assessment) since the middle of the 20th century (HegerI. et aI., 2007). However, newer research led the

USGCRP (Karl et aI., 2009) to conclude that there are human fingerprints in the pattern of changes in

Antarctic surface temperatures. Figure 5.2 indicates North America's observed temperatures over the last

century can only, be reproduced using model simiilations containing both natural and anthopogenic

forcings. In the CCSP (2008g) report Reanalysis of Historical Climate Data for Key Atmospheric

Features: Implications for Attribution of Causes of Observed Change, Dole et al. (2008) find that for

North America "more than half of this warming (for the period i 951-2006) is likely the result of humancaused GHG forcing of 'cimate change."

40 Fingerprint studies use rigorous statistical methods to compare the patterns of observed temperature changes with

model expectations and determine whether or not similarities could have occurred by chance. Linear trend

comparisons are less powerfl than fingerrint analyses for studying cause~effect relationships but can highlight

important differences and similarities between models and observations (as in Figures 5.1 and 5.2).

50

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Endangerment and Cause or

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Greenhouse Gases Under

Section 202(a) of the Clean Air

Act:

EPA's Response to Public

Comments

Volume 2: Validity of Observed

and Measured Data

65 EPA Response to Stay Motion

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.,r

Validity of Observed and Measured

Data

U. S. Environmental Protection Agency

Office of Atmospheric Programs

Climate Change Division

Washington, D.C.

66 EPA Response to Stay Motion

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i-~'è . ..~

FOREWORD

This document provides responses to public comments on the U.S. Environmental Protection Agency's

(EPA's) Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section

202(a) of the Clean Air Act, published at 74 FR 18886 (April 24, 2009). EP A received comments on

these Proposed Findings via mail, e-mail, and facsimile, and at two public hearings held in Arlington,

Virginia, and Seattle, Washington, in May 2009. Copies of all comment letters submitted and transcripts

of the public hearings are available at the EPA Docket Center Public Reading Room, or electronically

through htto://www.regulations.gov by searching Docket ID EPA-HQ-OAR-2009-0171.

This document accompanies the Administrator's final Endangerment and Cause or Contribute Findings

for Greenhouse Gases Under Section 202(a) of the Clean Air Act (Findings) and the Technical Support

Document (TSD), which contains the underlying science and greenhouse gas emissions data.

EPA prepared this document in multiple volumes, with each volume focusing on a different broad

category of comments on the Proposed Findings. This volume of the document provides responses to

public comments regarding the validity of observed and measured data.

In light of the very large number of comments received and the significant overlap between many

comments, this document does not respond to each comment individual1y. Rather, EPA summarized and

provided a single response to each significant argument, assertion, and question contained within the

totality of comments. Within each comment summary, EPA provides in parentheses one or more lists of

Docket ID numbers for commenters who raised particular issues; however, these lists are not meant to be

exhaustive and EPA does not individual1Y identity each and every commenter who made a certain point in

all instances, particularly in cases where multiple commenters expressed essential1y identical arguments.

Several commenters provided additional scientific literature to support their arguments. EPA's general

approach for taking such literature into consideration is described in Volume 1, Section 1., of this

Response to Comments document. As with the comments, there was overlap in the literature received.

EPA identified the relevant literature related to the significant comments, and responded to the significant

issues raised in the literature. EP A does not individually identity each and every piece of literature

(submitted or incorporated by reference) that made a certain point in al1 instances.

Throughout this document, we provide a list of references at the end of each volume for additional

literature cited by EPA in our responses; however, we do not repeat the ful1 citations of literature cited in

the TSD.

EPA's responses to comments are general1y provided immediately fol1owing each comment summary. In

some cases, EP A has discussed responses to specific comments or groups of similar comments in the

Findings. In such cases, EP A references the Findings rather than repeating those responses in this

document.

Comments were assigned to specific volumes of this Response to Comments document based on an

assessment of the principal subject of the comment; however, some comments inevitably overlap multiple

subject areas. For this reason, EPA encourages the public to read the other volumes of this document

relevant to their interests.

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TABLE OF CONTENTS

2.0 Validity of Observed and Measured Data

2.1 Greenhouse Gas E missions and Concentrations ............................................1

2.2 T emperatu re........ .... .,. ........ .... ....................... .............. ................... ..................... ..... 16

2.3 Precipitation..... ........ ................................................. ........ ................... .... .... ............ 50

2.4 Sea Level Rise ........................... ............................... ............ ................... ................ 52

2.5 Extreme Weather E vents .......................................................................................60

2.6 Changes in Physical and Biolog ical Systems ................................................. 70

Appendix A: Climate Research Unit (CRU) Temperate Data Web Site ............................. 89

Appendix B: CRU Statement on Data Availabilty ........................................................ 94

Appendix C: United Kingdom Hadley Centre Statement on Release of CRU Data.......... 97

Appendix D: Response of Keith Briffa to Stephen Mcintyre........................................... 98

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,,":_ _ - C'':' '," ."" ,,-, _""" " ",'"~'. :.;..

Gilbert Plass recognized and discussed both these mechanisms in his 1956 paper, the abstract of which

addresses both the stratospheric cooling and the tropospheric warming functions ofCOz:

The cooling rate for the present atmospheric carbon-dioxide concentration is greater than

i DC/day from 24 km to 70 km (the stratosphere) and is greater than 4°C/day from 38 km

to 55 km. The sum of the ozone and carbon-dioxide cooling rates is greater than 4°C/day

from 33 km to 57 km and agrees reasonably well with the heating due to ozone

absorption. The results for different carbon-dioxide concentrations indicate that the

average temperature at the surface of the earth would rise by 3.6°C if the carbon-dioxide

concentration were doubled and would faII by 3.8°C if the carbon-dioxide concentration

were halved, on the assumption that nothing else changed to affect the radiation balance.

We note that this estimate of climate sensitivity to the doubling of COz is within the current IPCC range,

as summarized in the TSD. For further responses to comments on climate sensitivity, see Volume 4 of the

Response to Comments document.

Comment (2-19):

Some commenters write that COz is a weak GHG compared to other gases (0425,0498,0639.1, 1187. I,

'1217.1,2759,10595); they note that CH4's potency is 1000 times greater (0425) or that water is 95% of

total greenhouse effect (10158, several others), implying that COz emissions can not have a large effect

on the earth's climate.

Other commenters write that CO2 is a weak GHG because it is limited as to how much radiation it can

absorb. For example, a commenter asks why Mars is not warm despite a 95% CO2 atmosphere (2895),

and another states that doubling COz would only have a small (OA°C) effect (2759). One commenter

states that as COz concentrations increase, the forcing does not increase-C02 "has a forcing limit of 325 .;

ppm" (0582). Another cites Plimer, who states that it has a maximum threshold (1 1454), and another

states that CO2 does not absorb infrared (286). Others point out that CO2 is less than 0.05% of the

atmosphere (0 i 53, 0455, 0498, 2885, 32 i 4. I), and therefore presumably has a very smaII effect. A

commenter (3722) claims that because of logarithmic forcing, 75% of the warming due to CO2 doubling

should have already happened, therefore future warming due to CO2 wil be smalL. A commenter (1009.1)

notes that increased CO2 wil not lead to much increase in temperature because of the logarithmic

relationship and saturation.

Response (2-19):

Although it is true that COz has a smalIer warming effect per kilogram or per molecule than a gas like

CH4, it plays a larger role in the warming of the atmosphere. For example, Table 2.14 of Forster et al.

(2007) lists radiative effects per ppb, lifetimes, and global warming potentials for a number of gases. CH4

is 73 times as potent as CO2 per kilogram in the atmosphere, 26 times as potent per molecule, or 25 times

as potent using the Global Warming Potential metric. However, the concentration by volume ofCH4 is

210 times less than that of CO2, and the emissions in kilograms ofCH4 are about two orders of magnitude

less. Thus, the TSD does not characterize various GHGs as "weak" or "strong," and we do not find such

characterizations usefuL. Note also that we are unclear the source for the claim that CH4's potency is

1,000 times greater than COi's. We are not aware of such an estimate.

We also find no support for the assertion that water is responsible for 90% or 95% of the greenhouse

effect in the sc ientific literature. Calculations by Kiehl and Trenberth (1997) suggest that water

contributes about 60% of the greenhouse effect in clear sky conditions and 75% in cloudy conditions

(including the cloud contribution). CO2 contributes about 26% of the greenhouse effect in clear sky

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conditions, and 15% in cloudy conditions. Because the mass of water in the atmosphere is much larger

than the mass ofCOz, this implies that per ton or per molecule, COz is actually a much more effective

GHG than water vapor.

The total effect of increasing COz concentrations can be best addressed by actually calculating the

radiative forcing resulting from changes in those concentrations. Section 4(a) of the TSD discusses

changes in radiative forcing due to increases in COz concentrations in the context of other changes in

radiative forcing over the last 250 years. This also puts in context how a gas that composes 0.04% of the

atmosphere can actually have a large radiative effect.

We disagree with assertions by commenters about a number of the radiative characteristics ofCOz. We do

agree that the forcing due to increases in COz concentrations is roughly logarithmic (Forster et aI., 2007).

This logarithmic relationship holds over a wide range of concentrations; commenters provided no peerreviewed literature to support the contentions that COz has a forcing limit of 325 ppm, a maximum

threshold, or no infrared absorption, and we find that these assertions are not consistent with the scientific

literature (Forster et aI., 2007). Current forcing is almost half(not 75%) of the expected doubling due to

the logarithmic relationship cited by one commenter, and because of the inertia of the climate system not

all the warming has been realized, so it is not poss ible to extrapolate future temperature change merely by

doubling the past 50 years of change. Comments on future temperature projections are covered in detail in

Volume 4.

Regarding Mars, see the response in Section 3.2.3 of Volume 3 of the Response to Comments document.

For these reasons, we have found no support for the commenters' conclusions that COz does not have a

large effect on the Earth's climate. They provided no literature to support their assertions, and we have

determined that our discussion of these issues in Section 4(a) of the TSD is reasonable and scientifically

sound.

Comment (2-20):

A commenter (i 009. i) claims that the complex, chaotic, and non-linear nature of the climate leads to

stabilty .

Response (2-20):

The commenter provides no evidence to support their claim. From the historical record of temperature

fluctuations such as glacial to interglacial transitions, it is clear that the Earth's cli mate is not perfectly

stable. For example, Jansen et al. (2007) state "During the last glacial period, abrupt regional warmings

(likely up to i 6°C within decades over Greenland) and coolings occurred repeatedly over the North

Atlantic region." This record is not indicative of stability.

Comment (2-21):

A commenter (1 i 454. i) provided a quote from Heaven and Earth (Plimer, 2009) that "COz from human

activity produces o. i % of global warming."

Response (2-21):

We have reviewed Plimer's book, and find that it has not been peer-reviewed or undergone any objective

and thorough evaluation of its claims. Further, the scientific assessment literature does not support the

commenter's statement. "Global warming" is often used to refer to the warming of the past 50 years, in

which case increases in GHG concentrations due to human emissions are very likely to be responsible for

14

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EXHIBIT 8

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Endangerment and Cause or

Contribute Findings for

Greenhouse Gases Under

Section 202(a) of the Clean Air

Act:

EPA's Response to Public

Comments

Volume 3: Attribution of

Observed Climate Change

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TABLE OF CONTENTS

3.0 Attribution of Observed Climate Change to Increase in Greenhouse Gas (GHG)

Con cen trations ....................................................................................................................... 1

3.1 Degree of Anthropogenic Climate Influence ...................................................1

3.2 Alternative Explanations of Observed Changes ................................................20

, 3.2.1 Other Substances With Radiat ive Forcing Effec ts ............................ 25

3.2.2 Solar Irrad iance ............ .......... ........ ........ ............ ..... ............ ....... ............... 30

3.2.3 Existence of GHG Effect ...........................................................................36

3.2.4 CO2 and Past Global Warm ing Episodes...................... ..................... 41

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\.-.

observation-based studies agree with models. The product of 

"Evidence" and

"Consensus" factors give the LOSU rank. These ranks are high, medium, medium-low,

low or very low. Ranks of very low are not evaluated.

Similarly, Forster et aL. discusses in detail the rationale for summing multiple forcings together to develop

a probabilty density function for a net effect of all forcings. The discussion notes that the procedure used

followed the example of Boucher and Haywood (2001), giving individual RF mechanisms equal

weighting "even though the level of scientific understanding differs between forcing mechanisms," along

with several other issues that would introduce further uncertinties. However, the IPCC states (and EPA

concurs) that "Despite these caveats... it remains extremely likely that the combined anthropogenic RF is

both positive and substantial" (Forster et aL., 2007).

3.2 Alternative Explanations of Observed Changes

Comment (3-23):

A very large number of commenters (e.g., 0230, 0245, 0315, 0368, 0400, 0435, 0521, 0630, 0639.1,

0657,0659,0700.1,0716.1,1217.1, 1309.1, 1309.1, 1468, 1519, 1544, 1613.1, 1924,2888.1,2929,2992,

3136.1,3160,3160.1,3205.1,3281., 3281., 3440.1, 3446.1,3446.2,3535.1,3535.2,3596.3,3602.1,

3627.2,3707. 1,3722, 3722, 37222R 13, 37~2R24, 3722R49, 3722R51, 3722R55, 3722R85, 3729.1,

3769.1,4003, 4206,4244,4395, 4632R22, 4632R48, 6712, 7025, 7026,7037) argue thatnatural factors

provide a suffcient explanation for most or all recent climate change. These coinenters state that natural

processes either are or could be the primar driver of 

the observed changes in climate discussed in the

Proposed Findings and the April TSD, and they posit specific alternative drivers other than anthropogenic

GHG emissions. Some commenters focus solely on natural external forcings (e.g., solar output), others

solely on natural modes of internal variabilty (e.g., the El Nino-Southern Oscilation (ENSO)), and some

suggest that climate change could be the result ofinteractions between the two.

ResDonse (3-23):

The claim that natural internal variabilty or known natural external forcings can explain most (more than

half) of the observed global waring of 

the past 50 years is inconsistent with the assessment literature

and the vast body of science it represents. Based on analyses of 

widespread temperature increases

throughout the climate system and changes in other climate variables, the IPCC has reached the following

conclusions about external climate forcing: "It is extremely unlikely (0:5%) that the global pattern of

wanning during the past half century can be explained without external forcing, and very unlikely that it is

due to known natural external causes alone" (Heger! et aL., 2007). With respectto internal variabilty, the

IPCC report the following: "The simultaneous increase in energy c'ontent of all the major components of

the climate system as well as the magnitude and pattern of waring within and across the different

components supports the conclusion that the cause of 

the (20th century) waring is extremely unlikely

(0:5%) to be the result of 

internal processes" (Heger! et aL., 2007). As noted in the TSD, the observed

wanning can only be reproduced with models that contain both natural and anthopogenic forcings

(IPCC, 2007d), and the waring of 

the past half century has taen place at a time when known natural

forcing factors alone (solar activity and volcanoes) would likely have produced cooling, not wanning

(Hegerlet al., 2007): See also other responses in this volume for BPA's responses to comments on

specific alternative warming mechanisms.

20

74 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 75
~.A '..

EXHIBIT 9

';)

...,.'~

1

75 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 76
", ',' ','",," "".6:

Light-Duty Vehicle Greenhouse Gas

Emission Standards and Corporate

Average Fuel Economy Standards

EPA Response to Comments Document

for Joint Rulemaking

n EA~ United States

~.. EnvIronmental Protection ,.. Agency

76 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 77
/~ ...

Light-Duty Vehicle Greenhouse Gas

Emission Standards and Corporate

Average Fuel Economy Standards

EPA Response to Comments Document

for Joint Rulemaking

Assessment and Standards Division

Office of Transportation and Air Quality

U.S. Environmental Protection Agency

ft EA~ United States ~~ Environmental Protection ,.. Agency

EPA-420-R-10-012a

April 2010

77 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 78
Index of Proposal Commenters

~~..~

TABLE OF CONTENTS

1. '

2.

3.

4.

5.

6.

7.

General Comments

Reserved

EP A C02 Standards

EPA Response to Comments on Joint Issues and Technical Work

EP A Vehicle Program and Estimated Impacts

Reserved

Other Comments

1-1

2-1

3-1

4-1

5-1

6-1

7-1

ii

78 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 79
EP A Response to Comments

The Regulatory Flexibility Act (RF A) generally requires an agency to prepare a regulatory

flexibility analysis of any rule subject to notice and comment rulemaking requirements under the

Administrative Procedure Act or any other statute unless the agency certifies that the rule will

not have a significant economic impact on a substantial number of small entities subject to the

rule. If a covered agency, such as EPA, is unable to certify a rule at proposal, they must conduct

a Small Business Advocacy Review (SBAR) paneL.

If an agency certifies that the rule at issue does not have a significant impact on a substantial

number of small entities (SISNOSE), the agency is not required to undertake any regulatory

flexibilty analyses or conduct a SBAR paneL. When considering whether or not a rule should be

certified at proposal stage, the RF A requires the agency to look only at the "small entities to

which the proposed rule wil apply" and small entities "subject to the requirement" of the

specific rule in question. 5 U.S.c. § 603(b) (emphases added).62 Though the agency must have a

"factual basis" for this certification, that factual basis can be supported by the fact that the rule

"does not directly regulate any small entities." ATA v. EPA, 175 F.3d 1027, 1045 (D.C. Cir.

1999).

Courts have "consistently rejected the contention that the RF A applies to small businesses

indirectly affected by the regulation of other entities." Cement Kiln Recycling Coalition v. EP A,

255 F.3d 855, 869 (D.C. Cir. 2001). The D.C. Circuit has previously addressed an RFA claim in

the context of motor vehicle regulation, and held that EP A was not required to conduct RF A

analyses where the rule did not directly impose requirements on small automobile manufacturers.

Motor & Equipment Mfrs. Ass 'n v. Nichols (MEMA), 142 F.3d 449, 467 (D.C. Cir. 1998) (EPA

is only "obliged to consider the impact of the rule on small automobile manufacturers subject to

the rule").

This rule, as did the rule in MEMA, regulates exclusively large motor vehicle manufacturers and

thus has no direct impacts on any small entities.63 EPA recognizes that in some cases the Clean

Air Act will require application ofPSD permitting requirements to GHG emissions when the

regulatory requirement to control those emissions "takes effect" under this rule. However, those

permitting requirements are imposed by operation of section 165 of the Clean Air Act and are

not imposed by the regulatory requirements contained in this separate regulatory action under

section 202(a) (1). EPA is not required to base its certification decision on indirect impacts

62 Likewise, in discussing the consideration of significant alternatives to the proposed rule in an initial regulatory

flexibility analysis, the RF A refers to the "establishment of differing... requirements" that take into account the

resources available to small entities, the simplification of "requirements under the rule for such small entities," and

"an exemption from coverage of the rule... for such small entities."

63 Small manufacturers are exempted from the GHG standards and other regulatory requirements adopted in this

final rule. For the proposal, a limited number of small entities were subject to a proposed reporting requirement, but

the economic impact of that proposed regulatory requirement was clearly not significant. EPA proposed to exempt

small manufacturers and other entities from the GHG standards and other regulatory requirements, and the only

proposed regulatory requirement they were subject to was a one-time reporting obligation to obtain such exemption.

This single regulatory requirement did not have a significant economic impact. For the proposal, EPA was not

required to consider the indirect impacts on these small entities of other requirements that were not contained in the

proposed rule, but instead flow from the operation of other provisions of the CAA. EPA properly based its

NOSISNOSE certification for the proposal on the lack of significant impact imposed by the regulations themselves

on small entities subject to the proposed rule. For the final rule, EP A is not adopting this proposed one-time

reporting requirement, as it is not needed.

5-454

79 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 80
--t/:..:.

EPA Vehicle Program, Feasibilty, and Estimated Impacts

imposed on parties that are not subject to the regulatory requirements of this rule, such as parties

that are not motor vehicle manufacturers. EP A properly bases its certification by considering the

impacts ofthe regulatory requirements contained in the proposed and final rule, determining

whether these regulatory requirements themselves imposed a significant impact on a substantial

number of small entities subject to the rule.

As this rulemaking is limited to issues involved in setting emissions standards for large motor

vehicle manufacturers, EP A would not be able to account for any potential indirect impacts from

separate statutory requirements on entities not directly subject to or impacted by this rule. Even

where a rule could "doubtless have economic impacts in many sectors of the economy," courts

have refused to "convert every rulemaking process into a massive exercise in economic

modeling" by requiring a full RFA analysis. Cement Kiln Recycling Coalition v. EPA, 255 F.3d

855,869 (D.C. Cir. 2001).

Although the RFA does not apply to this action, EPA recognized that some small entities were

concerned about the potential indirect impacts of the statutory imposition ofPSD requirements

that may occur given the various EPA rulemakings concerning greenhouse gas emissions. In the

interest of providing small entities a forum to express their concerns in addition to the

opportunity provided in the notice and comment process, EP A used the,discretion afforded to it

under section 609(c) of the RF A to consult with OMB and SBA, with input from outreach to

small entities, regarding the potential impacts ofPSD regulatory requirements on small entities

that might occur as EPA considers regulations ofGHGs.

Section 609(c) of the RFA allows agencies to, in their discretion, apply the provisions of the

RF A that address SBAR panels to a rule that "the agency intends to certifY... but the agency

believes may have a greater than de minimis impact on a substantial number of small entities." 5

U.S.c. § 609(c) (emphasis added).64 EPA does not believe that the use of this discretion requires

a rigid application of the entirety of section 609(c). Instead, agencies may pick and choose

elements of the SBAR panel process to apply as they deem appropriate for the rule at issue.

EPA believes that section 609(c) of the RFA authorizes agencies to engage in outreach similar to

that of a formal SBAR panel where, as in this action, the RF A would not otherwise apply due to

the certification ofthe rule.65 EPA maintains that this action does not have any significant

impacts on small entities directly subject to the rule, and EPA's use of 609(c) does not indicate

otherwise. As indicated by the word "may," an agency has discretion to invoke this provision in

a variety of circumstance and is not limited to those situations where it is certain that a rule has a

greater than de minimis impact.

64 One commenter misunderstood this provision, believing that Section 609(c) only authorizes agencies to forgo an

Initial Regulatory Flexibility Analysis (IRF A). This is not an accurate reading of the statute. Section 609(c) applies

where agencies certifY that a rule wil have no SISNOSE under 605(c). When an agency certifies no SISNOSE

under 605(c), they are not obligated to conduct an IRFA. Since the 609(b) SBAR panel requirements are triggered

only when EPA is "required to conduct" an IRFA, Section 609(c) discretion applies only to the SBAR panel process

provisions of 609(b), but not the substantive IFRA requirement. The 4th Cir. opinion referenced by the commenter

does not involve agency use of section 609(c) and has no meaningful bearing on the matter at hand. .

65 EP A does not believe that section 609( c) of the RF A offers agencies a chance to circumvent the panel process

where they do not intend to certifY that the rule does not have a SISNOSE, and EPA remains committed to holding

SBAR panels where contemplated by the RF A.

5-455 80 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 81
EP A Response to Comments

Commenters have cited almost no case law to support their claim that EPA has violated the

, RF A. 66 One case, Aero. Repair Station Ass 'n v. F.A.A., 494 F .3d 161 (D.C. Cir. 2007), is plainly

distinguishable from this action. In Aero. Repair, the FAA certified a regulation that imposed

requirements on "employer air carriers", but which also "expressly require(d) that the employees

of contractors and subcontractors be tested" under the regulation. ¡d. at 177. FAA argued that

since the phrase "employer air cariers" did not include contractors and subcontractors, they were

not required to consider impacts on contractors and subcontractors in fulfillng their RF A

obligations. The court rejected the claim, finding that ''the 2006 Final Rule imposes

responsibilties directly on the contractors and subcontractors." ¡d. (emphasis added).67

In this action, the only entities that have responsibilties under this rule are motor vehicle

manufacturers, and the rule explicitly exempts small motor vehicle manufacturers from those

responsibilties. No other entities, whether implicitly or explicitly, have any responsibilities

under this rule. EPA wil not enforce this rule against anyone other than the large automobile

manufacturers subject to it.

Accordingly, EPA maintains that it has fully complied with the requirements of 

the Regulatory

Flexibilty Act in this action. Because this rule does not Significantly impact a substantial number

of small entities that are subject to the rule, EP A has statutory authority to certify this rule under

the RF A. Thus, EP A was not required to conduct a SBAR panel or any regulatory flexibilty

analyses.

EP A rejects the argument that it needs to provide additional analyses beyond that in the

Regulatory Impact Analysis, to be responsive to various Executive Orders on analyses of 

the

costs and benefits ofthis rule. These Executive Orders call for EPA to analyze the impacts of

this rule and its requirements, not indirect impacts of statutory requirements that flow from this

rile. Likewise, compliance with UM and Executive Order 13132 are properly focused don

the impacts of this rule on States, not the impacts of indirect effects that flow from this rule.

Finally, EP A believes that its RIA satisfies the requirements of Section 317 ofthe Act, which

calls for an analysis ofthe impacts of the requirements imposed by this rule, riot indirect effects

that flow from it.

The various comments on consideration of the economic impacts of the PSD permitting

provisions fail to recognize that any analysis of such impacts would not aid EP A in determining

what GHG standards to adopt in this rulemaking. They are not related to any ofthe issues EPA

needs to consider and decide in determining the content ofthe GHG standards 

that wil apply to

automobile manufacturers. EPA has addressed elsewhere the separate issue ófwhether EPA

should delay issuance ofthis rule because of concerns raised over PSD permitting.

66 EP A is not aware of a prior situation where EP A voluntaily conducted a SBAR panel where the regulatory action

at hand triggered a subsequent statutory obligation, and commenters have not indicated otherwise. Although EP A is

aware of a handful of eXliples of other agencies voluntarily engaging in regulatory flexibilty analyses where their

regulatory action arguably triggered a statutory obligation, we note that none of those agencies conducted a SBAR

panel prior to proposaL. In addition, any analyses they completed were post proposaL. See e.g. 71 Fed. Reg. 8,265

(Feb. 16,2006). 67 It is also worth noting that the FAA is not a covered agency under the RF A, and thus is not required to complete

an SBAR paneL.

5-456

81 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 82
Other Comments

The third category of comments, relating to small business impacts, is addressed in

Section 5.14 of this Response to Comments document, including EPA's response to

comments regarding compliance with the Regulatory Flexibilty Act. As stated in that

response, EP A is certifying that the rule does not have a significant impact on a

substantial number of small entities after considering the impacts of the regulatory

requirements contained in this final rule, on the small entities directly subject to the rule.

Accordingly, EPA is able to certify this rule under the RFA because small entities are

exempt from regulation under the rule. As explained in that response, this rulemaking is

limited to issues involved in setting emissions standards for large motor vehicle

manufacturers, and EP A would not be able to account for any potential indirect impacts

from separate statutory requirements on entities not directly subject to or impacted by this

rule. Accordingly, because the RFA requires the agency to look only at the "small entities

to which the proposed rule wil apply" and small entities "subject to the requirement" of

the specific rule in question, 5 U.S.C. § 603(b), the RFA does not apply to small entities

indirectly affected by the regulation of other entities.

The fourth category of comments suggested that EP A should defer setting GHG

standards for new motor vehicles to avoid such stationary source permitting impacts.

EP A is issuing these final GHG standards for light-duty vehicles as part of its efforts to

expeditiously respond to the Supreme Court's nearly three year old ruling in

Massachusett v. EPA, 549 U.S. 497 (2007). In that case, the Court held that greenhouse

gases fit within the definition of air pollutat in the Clean Air Act, and that EP A is

therefore compelled to respond to the rulemaking petition under section 202(a)(I) by

determining whether or not emi'ssions from new motor vehicles cause or contribute to air

pollution which may reasonably be anticipated to endanger public health or welfare, or

whether the science is too uncertin to make a reasoned decision. The Court further ruled

that, in making these decisions, the EPA Administrator is required to follow the language

of section 202(a)(I) of the CAA. The Court stated that under section 202(a), "(i)fEPA

makes (the endangerment and cause or contribute findings), the Clean Air Act requires

the agency to regulate emissions of the deleterious pollutant." 549 U.S. at 534. As

discussed above, EPA has made the two findings on contribution and endangerment. 74

FR 66496 (December 15, 2009). Thus, EP A is required to issue stadards applicable to

emissions of this air pollutant from new motor vehicles!.

The Court properly noted that EP A retained "significant latitude" as to the "timing ... and

coordination of its regulations with those of other agencies" (i.). However, it has now

been nearly three years since the Court issued its opinion, and the time for delay has

passed. In the absence of these final standards, there would be three separate federal and

state regimes independently regulating light-duty vehicles to increase fuel economy and

reduce GHG emissions: NHTSA's CAFE standards, EPA's GHG standards, and the

GHG standards applicable in California and other states adopting the California

standards. This joint EPA-NHTSA program wil allow automakers to meet all of 

these

requirements with a single national fleet because California has indicated that it wil

accept compliance with EPA's GHG stàndards as compliance with California's GHG

i EP A consequently disagrees strongly with the view of Duke Energy and others that "EP A lacks the legal

authority to issue its proposed GHG motor vehicle emission stadards under section 202(a) of 

the CAN'.

7-67

82 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 83
,!-. '-'.- .-. '-'-, . . . -. ~ " -,.- ,~ . ,

EP A Response to Comments

stadards. 74 FR at 49460. California has not indicated that it would accept NHTSA's

CAFE stadards by themselves. Without EPA's vehicle GHG standards, the sttes wil

not offèr the federal program as an alternative compliance option to automakers and the

benefits of a harmonized national program wil be lost. California and several other

states have expressed strong concern that, without comparable federal vehicle GHG

standards (not fuel economy standards), the states wil not offer the federal program as an

alternative compliance option to automakers. Letter dated February 23,2010 from

Commissioners of California, Maine, New Mexico, Oregon and Washington to Senators

Harr Reid and Mitch McConnell (Docket EPA-HQ-OAR-2009-0472). The automobile

industry also strongly supports issuance ofthese rules to allow implementation ofthe

national program and avoid "a myriad of problems for the auto industr in terms of

product planning, vehicle distribution, adverse economic impacts and, most importntly,

adverse consequences for their dealers and customers." Letter dated March 17, 2010

from Allance of Automobile Manufacturers to Senators Har Reid and Mitch

McConnell, and Representatives Nancy Pelosi and John Boehner (Docket EP A-HQOAR-2009-0472). Thus, without EPA's GHG standards as part ofa federal harmonized

program, important GHG reductions as well as benefits to the automakers and to

consumers would be lost.2 In addition, delaying the rule would impose significant

burdens and uncertainty on automakers, who are already well into planning for

production of MY 2012 vehicles, relying on the abilty to produce a single national fleet.

Delaying the issuance of this final rule would very seriously disrupt the industr's plans.

Instead of delaying the LDV rule and losing the benefits of this rule and the haronized

national program, EP A is directly addressing concerns about stationar source permitting

in other actions that EP A ,is taking with regard to such permitting. That is the proper

approach to address the issue of stationary source permitting, as compared to delaying the

issuance of this rule for some undefined, indefinite time period.

Some parties have argued that EPA's issuance ofthis light~duty vehicle rule amounts to a

denial ofvariolls administrative requests pending before EPA, in which parties have

requested that EP A reconsider and stay the GHG endangerment finding published on

December 15,2009. That is not an accurate characterization of the impact of this final

rule. EPA has not taken final action on these administrative requests, and issuance of this

vehicle rule is not final agency action, explicitly or implicitly, on those requests.

Currently, while we carefully consider the pending requests for reconsideration on

endangerment, these final findings on endangerment and contribution remain in place.

Thus under section 202(a) EPA is obligated to promulgate GHG motor vehicle standards,

although there is no statutory deadline for issuance of the light-duty vehicle rule or other

motor vehicle rules. In that context, issuance of this final light-duty vehicle rule does no

more than recognize the current status of the findings -- they are final and impose a

rulemaking obligation on EPA, unless and until we change them. In issuing the vehicle

rule we are not making a decision on requests to reconsider or stay the endangerment

finding, and are not in any way prejudicing or limiting EPA's discretion in making a final

decision on these administrative requests.

2 As discussed elsewhere, EPA's GHG stadards achieve greater overall reductions in GHGs than

NHTSA's CAFE standards.

7-68

83 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 84
..~. ."

'"

EXHIBIT 1 0

84 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 85
8-7-80

Vol. 45 No. 154

Pages 52355-52768

=- .. ¡;~Ë p S -- -A:

.. =-

'" _~

i

-=-

~

.. '= -- -

-=.æ .æ

- ..

=- -

~~

Ë æ. li -: ~

'S

Thursday

August 7, 1980

Highlights

52356 Campign Funds FEC anounces 8-7-0 as

effective date for rung reardng contrbutions to

and expenditures by delegates to national pary

nomiating conventions .

52750 Molar Vehles FCC proposes rue concerg

practices aDd inormation disclosure on used car

sales: comments by 10-7-8 (par IV of this issue)

52542 Mass TranaporalJon DOT /FR proposes

guidelines for Federa rmanci of Amtr

comment. by 9-22-8

52373 Income Tax TreasUl/IR pro\ides fial

regulations relnting to investment in U.s. propert

by controlled foreign corporations

52399 Income Tax Treasur/IRS proposes reguations

relatig to deductibilty of expenses in connection

with business use. or rental to others of dwell

unts

52371 Public HousIng HU/FHC implements cerain

changes pertaining to contiued operation of public

housing projects after completion of debt senice for

the project: effective 9-15- comments by 1~

52762 HousIng HU/CPD publishes interi rue

authorizing use of certain fuds: effective 9-15-

comments by 1D- (part V or ths issue)

COED IHSIO

85 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 86
:ld

II Federal Register I Vol. '45, No. 154 I Thursday, August 7, 1980 I Highlights

~\~~Ol'l; .~i

\ ,_ ã ~. "-~!?

"S./93,.W

FEERA REGISTER Pubirheit daiiy, Monday though Friday,

(not published on Satudays, Sûñdays," or on offcial holidays),

by the Offce of the~).derel Regis\.!, ;N~ti~nal Archves and

Records Servce. Genera'"S~l"ce..;,\t\èl6trtion, Washilon..

D.C. 20408. under ila F.e;~~ra~ Reg1st:r.Acl'~(4!1~taL 500. as

amended; 44 U.s:C, Cb. 15):.atdthe Tl18!lations".of the

Adminlstrative; Cointtee' of fue..Federà Regišter (1 CF Ch. I).

D1stril)utloD is~ inade, oJÙy .b, .!le?sup'~ritend~nspf Documents.

U.S. Governerit-PrintrD8.'.OIfce. lWashugion.ID.a. 20402.

The Federal Register provides i-wifo~sy'.stem, for måkug

available to the piiiiic reg¡atiõns1-iicflégál 'iótices issued by

Federal agencies. These m"clude"Presldential:proclamations and

Execu~lve Orders and, reßela¡"agen'e ìfít6ùents havig general

applicabilty and legal effect; documentS requied to be

published by Act of Congrss and other Federal agency

documents- of public mteresL Docuents are on IDe for public

inspectioD m the Offce of ile Federal Register ile day before

they ere published, uness earlier ruin is requested by the

, issuing agency.

The Federal Register wi be furshed by mall to subscribers,

free of postage. for $75.00 per year, or $45.00 for six months.

payabfe m advance. The charge for mdividual copies is $1.00

for each issue, or $1.00 for each group of pages as actually

bound. Remit check or money order; made payable to the

Superintendent of Docuents, U.S. Goverient Prmtin Offce,

Washington. D.C. 20402.

There are no restrictions on the republication of material

appearing in ile Federal Register.

Area Code 2D2-2s-240

Highlights

52442 Petroleum DOE/ER issues notice or entitlement

program or crude oil cost data for November 1076

though May 1980 '

52441 Petroleum DOE intends to prepare environmental

impact statement on potential use or salt domes tostore crde oil .

52359 Natural Gas DOE/FEC exempta. cerIa In small

- industral boiler fuel facilties from Incremental

pricig

52538 Oil Pollution nOT/CG solicits information

. pertnent to study or large tonk barges, comments

by 10-1-80

52408 011 and Gas ExploratIon Interior/GS plans to

provide ror the submission or a plan or operations

ror leases in thè Western Gul of Mexico; commonts by 9-

52411 Water Pollution Control EPA announces

availabilty of, and invites comments on. effuent

litation gudelines for certain subcategories or

canned and presQrved seafood processln poInt

source category: comments by 9-0

52676 Air Pollution Control EPA prits requircmonta for

preparatiõn, adoption. and submital or

implementation plans; effective 8-7-80 (part II of

ths issue)

,

52410 Surface MinIng InterIor/SMO extends comment

period 1ltil 8-18-0 on proposed rue to defie

"surace coal mi operations" and "cool

processing plants"

52365 Highways and Roads DOT /FH A issues

requiements ror cerUfg State enforcement on

size and weight laws on Federal-aid highway

systems; effective 10-1-80

52386 Freight DOT/CG revises tables which Hst

flamable and 'combustible bul cargoes; effective

9-10-0

52397 Improving Government RegUlations Justice/DEA

issues semianual agenda

52547 Sunshine Act MeetIngs

sepamte Part of ThIs Issue

52628

52676

52750

52762

Part II, EPA

Part II, EPA

Part LV, FTC

Part V, HUD/CPD

86 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 87
il

Contents Federal Register

Vol. 45. No. 1&4

Th\Jdiiy. Auguit 7. 1!

Agricultural Marketing ServIce

RULE

52356 Oranes (Valencia) grown in Ar and Cali.

AgrIculture Departent

See also Agcultual Marketig Service: Forest

Servce: Soil Conservation Service.

RULE

Authority delegations by Secretar and General

Offcers:

52355 Rural Development, Assistant Secretary. et al.:

departmental energ programs

52439

52407

52516

52517

52457

52437

52437

52547

Air Force Department

NOTICES

Senor Executive Servce Performance Review

Board: meberp

Alcohol, Tobaco and FIrerms Bureau

PROPOS RULE

Alcoholic beverages and tobacco products

Excise taxs; payment by electrnic fud tranfer

and retu and deferral periods for payments by'

lare manufacturs; extension of lie

Ar and Humanites, National Foundaton

NOCES

Meetigs:

Design Arts Panel

Expansion Arla Panel

Center for DIease Control

NOTCES

Meetis:

Staphylococcus aurus: discussion of

extrcellular products and genetic characteristics

Civil Aeronautics Boar

NOTICES

Heargs. etc.:

South Bend-Chicago Subpart Q proceeding

Southeast Ailies. Inc., enforcement proeeding

Meetigs: Sunshie Act

Civil Rights CommIssIon

NOTICES

52547 Meetigs; Sunhie Act

Coast Guard

RULES

Dangerous caroes:

52386 Flamable and combustible bul cargoes

Vessel inspections: '

52387 Tailshaft examiation

NOTICES .

52538 Tan bares, lare. carrg crude oil; study of oil

pollution causes; inquir

COmmerce Department

See International Trade Admstration: National

Oceanc and Atmospheric Adminstration.

Commodity Futures Trading CommIssion

NOTICES

52439 Self-reguatory orgiliztions: superion or futus

commIssion mercants compliance \\ith fiancial

requiremcnts: proposed joint audit plan inqui

correction

CommunIty PlannIng and Developmnt Of of

AssIstant Secretary

RULE

52762 Urban homestcadig progr: inter

DefenN Departnt

See Air Force Deparent.

52397

Drug Enforcement AdmInIsttion

PRPO RULE

Impro..ing Goverent reations

Reguatory sgenda

EconomIc Regulatory AdminIstrtin

NOTIES

Crude 011. domestic; imtiUemenls progr cost

daIs. 1978-198:

November though May

Educatin Depart

NOES

Education Appeal Board:

Applications

Decisions

52442

52439

524~O

Energy Departent

See also Economic Reguatory Adminstrtion:

Federal Energy Reguatory Commssion.

NOTIES

Environmental statements; availabilty, ete.

Gul of Mexico: use Dr salt domes for crde oil

storage by Strategic Petrleum Resere '

Jntemationtll atomic cnerg agrements civi uses;

subsequent arangements:

Canada

Japan and Europcan Atomic Energ Communty

Environmental Protecon Agency

RULE

Ai Qualty implementation plans:

52676 State implementation plan: prepartion.

adoption. submittal. approval, and promulgation:

prc\"cntion or sIgncat ai qualty detenoratioD

(PSD), ete.

PROP RULE

Pesticides progrs:

52628 Registration denial or cacellation and cIge to

use classlfcatioDt issuance procedurs: reviion

of hearig procedurs

Water pollution: cmuent gudelies ror point soure

categories:

52411 Seafood. caned and preserved. procesiDg;

rucmakng petition. avaiabilty and request for

comments

524~1

52442

52442

87 EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 88
.

52676 Federal Register I Vol. 45, "No. 154 I Thursday, Augst 7,1980 I Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 51, 52, and 124

(FAL 1538-2J

RequIrements for Preparation,

Adoption, and Submittal of

Implementation Plans; Approval and

Promulgation of Implementation Plans

AGENCY: Environmental Protèction

Agency.

ACTION: Final rules.

.

SUMMARY: In response to the decísion of

the U.S. Court of Appeals for the D.C.

Circuit in IJlabama Power Company v~

Costle, BPA is today aiendig its

regulations for the prevention of

, signifcant deterioration of air qual(ty,

40 CFR 51.4, 52.21. Today's .

amendments also include reguatory

change!l affectig new source review in.

nonaUainent areas, includig

restrictiohs on major source growth (40' .

CFR 52.4) and requiements under

BPA's Emission Offset Intel'retative

Ruling (40 CFR Part 51, Appeòäi S) and

Section 173 of the Clean Al Act (4P CFR

51.18 (j).

DATES: The regulatory aIendments

announced here come into effect on

August 7, 1980. State Implementation

Plan reviions meetig today's

regulatóry changes are to be submitted

to BPA withn nine months after ths

publication.

FOR FURTHER INFORMATION CONTACT:

James B. Weigold, Stadards

Implenientation Branch (M15), Offce

of Air QuaUty Plann and Standards,

Research Triangle Park, N.C. 27711, 919/

541-5292.

SUPPLEMENTARY INFORMATION: The

contents of today'li preamble are lited

in the following outline. A section

. entitled Sumary of PSD Program has

been added to provide a concise

narrative overyew of ths program.

OuUla

I. Summar of PSD Program

A. PSD Allows Industral Growth With

Specifc Air Qualtiy goals

B. Who Is SubJect to the Prvention of

Signcant Deterioration Reguations?

C. What Must a Source or Modication Do

to Obtain a PSD Permit?

II. Background .

II. Highlights

iv. Transiton

A. Part 52 PSD Regulations

B. Part 51 PSD Regulations

C. Offset Ruling .

D. Part 51 Nonaltainment Regulations

E. Constrction Moratorium

F. Pending SIP Revisions

G. EffectIve Date of Nonattainment ProvisIons .

H. Miscellaneous

V. Potential To Emt

A. Oontrol Equipment

B. Continuous Operation

C. Additional Guidance

VI. PUty-TOD Exemption

. VD. Fugitive Emissions

vm. Fugtive Dust Exemption.

IX. Source

A. Proposed Defitions of "Source"

B. PSD: Comments on Proposal and . Responses '

C. Nonattainent: Comments on Proposal

and Responses

X. -Modication

A. Final Defition-of "Major Modication"

B. No Net Increase

C. PoUutånt Applicabilty

D. Netti of Actuål Emssions

E. Contemporaneous Increases and

Decreases

F. Ollerwse Creditable Increases and

Decreases.

G. The Extent to Whch Increases and and

Decreases ar Creditable

H. Accumulâtion

, i. Restrctions on Constrction

J. Reconstrction K. Exclusions .

1. Example of How The Derintions Work

XI. De Mis Exemptions

XU. Ge08lphic and Pollutant Applicabilty

A. Backgound

B. PSD Applicabilty

C. Nonattaient Applicabilty

D. Case Examples.

E. Interstate Pollution

F. Geographic Applicabilty for VOC

Sources .

G. Response to Comments

XI. Baselie Concentration, Baselie Area,

and Baselie Date

A. Baselie Concentration

B. Basele Area .

C. Baselie Date

D. Pollutant-Specifc Baseline

XI. Increment Consumption .

A. Rationale for Use of Actual Emssions

B. Exclusions from Incrment Consumption .

C. Increment Exansion due to Emssions

Reductions

D. Gul Coast Prblem

E. Potential Increment Violations

XV. Best Avaiable Control Techology

XV. Ambient Monitori

XV. Notication

xv. PSD SIP Revisions.

A. Equivalent Statl1 Prgral

B. Baselie Area

C. State Monitori Exemption

XI Additional Issues

A. Ino\lative Control Techology

B. ¥odied Permts

C. Nonprofit Institutions

D. Portable Facilties

E. Seconda Emssions

F. Baselie for Calculati Offsets under

Section 173(1)(A) ,

G. EconomIc Impact Assessment

'- H. Consolidated Permt RegulationsI. Sumary of PSD Program

The purose of ths sumar is to

help those people who are unamiar

with the PSD program gàin an

understandig ofit. Because ths

88

sumary seeks to condense the basic

PSD rues, it may not precisely reflect

the amendments announced in thls "

notice. Should there be any apparent

, inconsistency between the summary and

the remainder of the preamble and thii

reguations, the remaining preamble and

the. reguations snall govern.

A. PSD Allows Industrial Growth

Witl Specific Air Qualiy Goals

The basic goals of the prevention of

signficant air quality deterioration

(PSD) reguations are (1) to ensure that

economic growth wil occu in harmony

with the preservation of existing clenn

ai resources to prevent the .

devi¡lopment or any new nonaUainment

problems: (2) to protect the public health

and welfare from any adverse effect

which mit occur even at air pollution

levels better than the national ambient

ai quaUty standardsJ and (8) to

preserve, protect, and enhaJce the air

qualty in areas of specIal natural

recreational,lIceiuc, or historic value,

such as national parks and wilderneos

areas.

States Ðre requied to develop SIP

revisions for PSD pursuant .0

reguations published today. Sou 40 orn

.. 51.2, "Requirements for ~epnraUonl

Adoption and Submital of

Implementation Plans." If EPA approves

the proposed PSD plan, the state can

then Implement its own program. In the

absence of an approved state PSD pIon,

another portion of today's regulationo

wi govern PSD revIew. See 40 CFR

52.21, "Approval and Promulgation or

Implementation Plans." BFA wil

implement ths reguation Itself if the

state does not submit an approvable

PSD program ofIs own.

States can identify In their SlPs the

local land use goals for each cloan aroll

thoug a system of area classifcations,

A "clean" area is one whose air qualUy

is beUer than that requied by the

National Ambient Ai QuaUty

Standards. Each classifcation difers in

the amount of growth it wil permlt

before signcant ai qualiy

deterioration would be deemed to occur,

Signficant deterioration Is said to occur

when the amount of new pollution

would exceed the applicable maximum

alowable Increase ("increment"), the

amout of which varies with the

classifcation oribe area. The reference

point ror determg air qualiy

deterioration iIi an area is the baseline

concentration. which is essentially the

ambIent concentration existing at the

tie of the fist PSD permit application

submittal affecti that area. To date,

only PSD increments for sulfur dioxide

and particulate matter have been

established. Increments or alternatives

EPA Response to Stay Motion

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Federal Register I Vol. 45, No. 154 I Thursday, August '1, 1980 I Rules and Reguations 52677

to increments ar cuently under

investiation for the other criteria

pollutants.

There are the tyes of area

classifcations. Class I areas have the

smalest incrments and thus allow only

a small degree of ai qualty .

deterioration. whie Class IT areas can

accommodate normal well-managed

industral growt. Class m designations

have the larest increments and are

appropriate for aras desir a larer

amount of development. In no case

would the ai qualty of an area be

allowed to deteriorate beyond the

National Ambient Ai Qualty

Standards. Except for certai widerness

areas and national parks. which are

mandatory Class I aras, all clean areas

of the countr were intially designated

as Class II. Flexibilty exists under the

Act to adjust most of these designations.

except for those mandated by Congress.

The pricipal mechansm with the

SIP to implement the objectives of the

PSD progr is the preconstrction

'review process. These provisions

requie that new major stationar

sources and major modiçations are

carefuy reviewed prlor to constrction

. to ensure compliance with the National

Ambient Ai Quality Standards, the

applicable PSD ai qualty increments.

and the requiements to apply the best

available contrl techology on the

project's pollutant emissions. in

addition. proposed SIP relaxations

which would lit fuer use of

increment muSt be reviewed for their

anticipated impact and not be approved

if the applicable incrment would be

violated. The SIP must also contai PSD

provisions for periodicaly reviewi all

emissions incrases. includi those

which occu outside the SIP revision and

the new sour review (NSR) process.

and for restori clean ai when such

increases cause viDlations of the

applicable PSD incrment. Ths

corrective action may requi additional

controls on existi emissions soures

which contrbute to the problem.

B. Who is Subject to the Prevention of

Significant Deterioration Regulations?

The requiments of today's PSD

reguations apply to major stationar

sources and major modications which

meet certain crteria concern the

geographic location. tye of pollutants to

be emitted, and ti of proposed

constrction. No source or modification

subject to today's rues may be.

constrcted without a permt which

states that the stationar soure or

modication would meet all applicable

PSD requiements. Ths section

sumares how PSD review as

modifed in response to Alabama Pon'el'

wil apply.

The primary criterion in determing

PSD applicabllty is whether the

proposed project is suffciently lare (In

terms of its emissions) to be a major

stationar source or major modication.

Source size. for applicabilty puroses.

is defined in terms of "potential to

emit." "Potential to emit" means the

capabilty at maximum design capacity

to emit a pollutant after the application

of all required air pollution control

equipment and after taking into account

all federally enforceable requiements

restrcting the t)'Pe or amount of source

operation. A "major stationar source"

is any source ~'Pe belonging to a list or

28 soure categories which emits or has

the potential to emit 100 tons per ~'e:i or

more of any pollutant subject to

regulation under the Act, or any other

source ~'Pe which emits or has the

potential to emit such pollutants in

amounts equal to or greater than2S0

tons per year. A stationar source

generaly Includes al pollutant-emittig

activities which belong to the same

industral grouping, are located on

contiguous or adjacent propertes. and

are under common contrl. Pollutant

activities which belong to the same

major group as defined in a standar

industral classifcation scheme

developed by the Offce orMiiagement

and Budget are considered part of the

same industral grouping. (See

SOURCE).

A "major modication" is generalli.' a

physical change in Or a change in the

method or operatioiiof a major

stationar soure which would result in

a signifcant net emissions Increase in

the emissions of any reguated pollutant.

In determ if a proposed increase

would cause a signcant net increase to

occur. several detailed caculations must

be performed. Firt, the sour oYt'Oer

must quanti the amount of the

proposed emii;i;ions incrase. Ths

amount wil generaly be the potential to

emit of the new or moded unL

Second. the owner must document and

quanti all emissions incrai;es and

decreases that have occUId or wi

occur contemporaneously (generally

with the past five year) and have not

been evaluated as part of a PSD review.

The value of each contemporaneous

decrease and incrase Is generay

determined by subtracti the old level

of actual emissions frm the new or

revised one. Thir, the proposed

emissions changes and the unviewed

contemporaeous chanes must then be

totalled. Finaly, if there Is a resultat

net emissions incrase that Islnrer

than certain values specifed in the

89

reguations. the modication is major

and subject to PSD re\iew.

Certain changes ar e."(empted frm

the defiiton of major modication.

These include: (1) routie maintenance,

repair, and replacement: (2) use of an

alternative fuel or raw material by

re\islon or an order under sections (2)(a)

and (b) of the Energ Supply and

En\'ironmental Coordiation Act of1974

(or any supersedig legislation); (3) use

or an alternative fuel by reason of an

order or rue under section 125 of the

Clean Ai Act: (4) use of an alterative

fuel at a steam generatig unt to the

extent it is generated from mimcipal

solid waste: (5) use of an alterati..e fuel

which the source is capable or

accommodatig: and (6) an increase in

the hour or operation. or the producton

rate. The last two exemptions ca be

used on~' if the correspondig chane is

not prohibited bi.' certai pert

conditions established after Januar 6.

1975.

If a source or modication. thus

quiiífes as major. its prospective

location or existig location must also

qualiy as a PSD area, in order for PSD

review to applj'. A PSD area is one

formall~r designated by the state as

"iiUalnent" or "unclassifable" for any

pollutant for 'Which a national ambient

ii quaUty standard e.xists. Th

geographic applicabilty test does not

take into account what new pollutat

emissions caused the constrcton to be

major. It looks simply at whether the

source Is major for any pollutant and ., .

wil be located in a PSD ara.

Once a sour applicat has

determed that proposed constrcton

rals under PSD based on the above sie

and location tests.1l must then assess

'Whether the pollutants the project would

emit ar or ar subject to PS. If a new

major staUonai soure emits pollutants

for which the ara it locates in is

designated nonaUaient. then the

source Is exempt frm PSD review for

those pollutants. These sources must,

however. meet the applicable

requiements of NSR for each

nonaUait poUutanL Simarly. if a

major modcation to be constrcted in

a PSD ara in\'olves chanes only for

nonaUalnent pollutants then the

soure is not subject to PSD. These

modications must meet the appropriate

nonaUainent NSR under the SIP for

tha pollutanL Once the question DfNSR

jursdiction is resolved. then the PSD

review applles to alsigncat

emissions incrases of reguated ai

pollutants. Specic numerica cutoffs

which de!e what emsions increases

ar "sigcat" have been spelled out

in the reguations. These pollutantEPA Response to Stay Motion

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52678 Federal Register I Vol. 45, No. 154 I Thursdaý, August 7, 1980 I Rules and Regulations -

specifc cutoffs,can exempt å source

. from PSD review for a particuar

pollutant, except where the proposed

constrction would adversely imp~ct a

Class I area. - ,

If a proposed source or modication

would be subject to PSD .review based

on sjze, location, and pollutants emitted,

then Its constrction schedule múst meet

certain testS before the PSD rues

pròmulgated today would apply. Al

. major constrction otherwise qualg

for PSD review would not need a PSD

permit under these regulations if the

proposed constrction: (1) was subject

to the old PSD rues, has submitted a

complete application under these rues

before today, and was òr is .

subsequently approved to constrct

based on ths application; or (2) was not

subject to the old PSD rues, has

received-all federal. state, and local air

permts needed before today-and

commences constrction in a contiuous

fashion at the proposed site with a

reasonable tie.

Finally, Ute p'SD reguations contai

some specific exceptions for some forms

of source constrctión. The

requirements of today's reguations do

not apply to any major stationary source

or major modication that is: (1) a

nonprofit health or educational

Inslitution (only if such exemption is

requested by the governor); or (21 a

portable source which has already

received a PSD permit and proposes

relocation.

, C. What Must A Soure or Modification

Do To Obtain A PSD Permit?

1. It must apply the best available

control technology. .

Any major stationary source or major

modifcation subject to PSD must

conduct an analysis to ensure

application of best available control

technology (BAC1. Durg each

analysis. which wi be done Qn a case.

,by-case basis. the reviewi authority .

wil evaluate the energ, envionmental,

economic and other costs associated

with each alternative techology, and

the benefi of reduced emissions that the

technology would brig. The reviewig

authority wi then specif an emssions

limitation for the source that reflects the

maximum degree of reduction .

achiev:able for each pollutant reguted

under the Act. In no event can a'

technology he recommended which.

would not/meet any applicable stadard

of performance under 40 CF Par 60

and 61.

In addition, if the reviewig authority

determìnes that there is no economicaly

reasonable or technologically feasible

way to accurately measure the

emissions, and hence to impose 'an

enforceable emissions standard, it may

requie the source to use source design,

alternative equipment, work practices or

operational standards to reduce

emissions of the pollutant to the

maxun extent. For example, if an

nnense pile' of uncovered coal emits

coal dust into the atmosphere, it woud

make little sense to impose an emission,

standard, since measur the amount of

coal dust risin off the pile is nearly

impossible. A much more diect

approach to controllin emissions is, for

exampl!l, requig the owner to wet the

coal pile daiy. Ths tye of standard or

practice wil be equivalent to an

emissionslitation for puroses of the

BACT requiement.

'2. It must conduct an aibient ai

quality analysis.

Each PSD source or modication must

perform an. ai qualty analysis to

demonstrate that its new pollutant

emissions would not violate either the

applicable NAAQS or the applicable

PSD increment. Ths analysis ensures

that the exstig !U qualty is belter .

than that reguied by national standards

and that baselie air qualty wi not be

. degraded beyond the applicable PSD

increment.

Each proposed major constrction

project sUDject to PSD must fist assess

the existig ai quality for each

reguated air pollutant that it emits in

the affected area. Ths analysis

requirement d.oes not apply to pollutants

for which the new emissions proposed

by the applicant woiid cause .

insigncant ambient impacts. Today's

PSD reguations defla.pollutant-specic

impacts that are tyicaly considered

inconsequential and that can be

exempted from analysis, uness exsting

air quality is poor or adverse impacts to

a Class I area are in question. For .

pollutants for which a NAAQS exists,

the applicant must provide ambi~nt

monitori data that represent ai

quality levels in the year's period

precedi the PSD application. Where

no existig data are judged

representative or adequate, then the

source applicant must conduct its own

monitorg program'. Ths is often the

case where the applicant wil be

establishig the baseline concentration

for the affected area. Tyically ai

quality dispersion modelig is used by

applicants to support or extend the

assessment made with gathered

monitorig data. For pollutants for

which there is no NMQS, the required'

analysis wi normaly be based on

dispersion modelig alone.

Source applicats who are subject to

. the ambient analysis requiement for

sulfu dioxide or particuate matter must

also perfoiman analysis to compute

90

how much of the PSD increment remains

available to them. in generul the niount

of increment that is available depends

on certain changes in actual emission.

First. actual emissions changes

occurrin after January 6, 1976 which are'

associated with physical changes or

changes in the method of operation Ilt Q

major stetionary sburce ban affect the

available increment. Accordigly,

cleanup adds to the available growth

margi while new emissions diminish li.

Second, all changes in emissions,

licludig those from minor sources ond

other tyes of changes at major sources,

affect the available increment provided

they otcur after the baselie date. Tho

baselie date is essentially the Ume that

the rust PSD application affeoting the

area is fied.

Once the question of how much

increment remains is resolved; then the

applicant must demonstrate ilat his

proposed new emissions would not

exceed the remaining PSD increment.

Where a proposed project would cause

a new violation of the incremont or

contrbute to an existing violation, it

cannot be approved. Exstin violations

must be entlrely'corrected before PSD

sources which affect the area can be

approved.

3. It must analyze impaots to soils,

vegetation, and visibllty.

An applicant is required to analyze

whether Its proposed emissions

increases would impair visibilty, or

impact on soils or vegetation. Not only

must the applicant look at ile diroct

bffect of source emissions on these

resources, but it also must consider the

impacts from general commercial,

residential, industral and oiler growth

associated with the proposed souce or

modication. The results of this analysis

may be used to determe if ile project

would have an adverse impact on a

Class I area.

4. It must not adversely impact a

, Class I area.

If the reviewing authority receives a

PSD permit application for a source that

could impact a Class I area, it wil

imediately notify the Federal Land

Manager and the federal offcial charged

with direct responsibilty for managing

these lmds. These officials are

responsible for protectig the air

quality-related values in crass I areas

and for consultig with ile revIewing

authority to determine whether any

proposed constrction wil adversely

affect such values. If the Federal Land

Manager demonstrates that emIssIons

from a proposed source or modifcation

would impair air quality-related valuos,

even though the emissions levels would

not cause a violation of the aIlowable

. air qualiy increment, the Federal Land

EPA Response to Stay Motion

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52710 Federal Regiter I V-ol. 45. No. 154 I 'Tursday, August 7, 1980 I Rules and Reguations

mean measurement of the

pollutants. The values promulgated

represent five ties the lowest

detectable concentrtion in ambient ai

that can be measured by the instrents

available for monitori each pollutant.

The factor of five was chosen afer

reviewig test data for the varous

methods considered reasonably

available. The decision was based in

part on considerations of instrent

sensitvity, potential for sampli error,

problems with instrent varabilty

(e.g., zero drt) and the capabilty to

read recorded data. For a more thoroug

discussion of ths determation.. see the

memoradum from K. Rehme to W.

Peters dated May 20,1980. wruch is

available in the iiemakg docket and

from the address given for the other

reports:

There also are several chanes in the

use of Table B from the Table 2

proposed on September 5. First. a source

deemed subject to review may claim the

de minimis air quality impact exemption

from only the monitori requiement

for the reasons noted earlier. Next,

under the proposal. a source had to

demonstrate that ita ambient impact ,

woul be de minlmis to obtai an

exemption from moiutorin. As

promulgated, the reguation allows a

source to be exempted from the

pre application monitori requiement if

it shows either tha t existig ai pollution

in the -source impact area or its

projected.impact in the afected area Is

de mlnimis. In most cases. little is to be

gained from preconstrction moiutoiig

in situations where either condition

applies.

Finally, because there wi be

situations where monitorig wi be

necessar even if modeli predicts de

mfnlmls conditions. the exemption is not

automatic but rather must be with the

approval of the reviewi authority. For

example, Table B values should not be

used when (1) there is an apparent

theat to an applicable PSD increment or

NAAQS based on modeling afone or (2)

when there is a question of adverse

impact on a Class i area. 'Questions of

adverse impact on a Class I area ,are to

be decided on a case-by-case basis with

the objectives of the afected Federal

Lantl Manager in mind.

Some of the suggestions made in the

commentll have not been adopted. For

the reasons stated earlier, many, of the

de mlnlmls,values have been increased.

The automatic exemption Dn the basis of

emissions rate is retaied, although the

exemption from monitorig .has been

made discretioii. The Admistrator

believe-i that a clearindication,of

applicabilty is necessar. It is not,

reasonable to expect a potential XU. Geographic and Pollutant

applicant to have contiuous knowledge Applicabilty

of the'status of increment consumption A. Backgróund

and thus know when an application is

requied 'and when iUs not. Nor have Alabama Power held that in

the de mlnlmis values been promulgated determing the applicabiUty of PSD

as a gu e 0 y, wi a screeni review ,source locates in an area to wlúch Part d nl th review, EPA must look to whether a

of al sources made mandatory as

sugested by one commenter. The C of the Act applies, rather than to the

Admstrator does not believe that' impact the source would have upon such

there is a substantial progratic an area. Accordigly, EPA proposed on September 5 to app1y PSD review to a benefit to be derived from such a source if the source locates in an area

striint requiement. . desigated attainent or unclasslfablo

Accuulation of de mfnmls values. fol' a pollutant which the source eilta in

has not been dropped. because for most major amounts. Each pollutant emitted

pollutants the' promulated de miniis by the source would be subject to PSD

emissions levels are now BubstaItialy review, uness the pollutant was .one for

higher than those proposed. The which an area is designated

suggestion to alow sources with greater nonattainent and the source emlled

than de mlnims emissions,to make a that pollutant in major amounts. A

showing that their ai qualty impact modification to a soure would be

wa.s de minimis and escape review was subject to PSIJ.eview under the

considered and then rejected. The higher September 5 proposal if it would result

emissions levels promulgated wi offer in a signcant net Increase in the

much of the requestea relief. Moreover, emissions of any regulated pollutant for

such an approach would not stre~e which the source Is major and for which

the review process (l.e., a detaied ai the area is designated attainment or .

qualty analysis would sti be unclassifable. In addition, EPA

necessar), and several sources with proposed on September 5 to apply PSD

taller stack'Dght avoid review anc; the review to a soure or modlcaUon that

BACT requiement. Varations in actual would signcantly affect an area in

impact because of stack height can be a . another alate designated as allainent

factor in the BACT review. Simarly, an or unclasslfable for a pollutant for . which the source or modication would

equation consideri stack height to be major. See 44 FR 5190-1, '51949

determe the de mlnimis emissions rate (§ 51.4(i)(2)), 5193-54 (§ 52.21(i)(8)). '

cutoff has not been promulated. It is On Januar 30. 1980, EPA stated that it

questionable whether such an equation intendei; not to apply PSD review based

could be developed for application solely on interstate impact. because thO'"

nationwide that wlJuld be any less cour's fial interpretation of the Act in

judgental than the fied de mimls AlabamaPower suggested that PSD

, emissions rates promulgated. Moreover, review was not appropriate in such .

that approach would be little more than' cicustances. EPA also noted that

a case-by-case applicabilty assessment under its September 5 proposal, a souroe

which lhe Adistrator believes is or modication would be exempt froln

inadvisable for reasons aleady . PSD review if it emtted in major

described. amounts only pollutants for which an

Other sugestions not accepted were area had been designated

to raise the de mlnimls emissions levels nonattaiIent. EPA solicited comments

to 100/250 tons per year for the criteria on whether ths exclusi~n should be

pollutants, and to lit th'e de mimls retaied, as well as on its proposal to

concept to only the crteria pollutants. In ' ~elete PS~ review based solely on

developing an approach to defig de - mterstate impacts. See 45 FR 6803

minims for PSD puroses and U~uar 30. 1980).

consequently calcuati the specifc de B. PSD Applicability

minlmis values :uder the gudance After futher evaluation of its

given wi~ ~e Act and Ala,bama proposed approach, and consideration

Power, emissionslevels as high as 100 of the comments submitted in re'sponiie

tons per year could not be justied for to the September 5, 1979, and January

most crteria pollutants. Use of the de 30, 1980. notices (see discussion below),

minmls concept with respect to only the EPA has decided'to modify the

.cteria pollutants suggests that any September 5 proposal somewhat. Under

increase (i.e., a zero de rns value) today's action, except with respect to

would be signcant for noncrteria nODattainment pollutants. PSD review

pollutants and must be reviewed. As wi apply to any source that emits any

mentioned earlier. a zero de minlmls is pollutant in major amounts, if the Bource

n,ot practic.al- for ths program. would locate in an area desIgnated

-' .

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Federal Regiter I Vol. 45, No. 154 I Thurday, August 7, 198 I Rules and Reguations 5271

attaint or unassmable for any

crtera pollutant. H the soure is subject

to PSD review. then PSD review wi be

applied to each pollutat the soure

emits in grater than de minmis

amounts. uness the ara is designted

as nonattent under sectioal07(d)(1)

for the parcuar pollutat. It should be

noted that in order for PSD review to

apply to a soure, the source need not

be major for a pollutat for which an

area is designated attent or

uncIassifable¡ the soure need only emit

any pollutant in major amounts (i.e., the

amounts specied in section 169(1) of

the Act) and be located in an area

desigated attaint or unclassifable

for that or any other pollutat.

Therefore. sources that ar major only

for pollutats for which an area is

desigated l1onattaient wi not be

exempt from PSD review uness the

source is located in an area which is

desigated nonattaient for al criteria

pollutats or uness al of the reguated

pollutats emitted by the source in

greater. than de minimis amounts are

nonattaient pollutants.

. The applicabilty of the PSD

reguations to modications mirs that

for new soures (see Modication). P8D

review wi apply to any modication to

a source which emits any pollutant

subject to reguation under the Act in

major amounts, if the modication

would result in a sigcant net increase

in the emissions of any pollutat. and if

the source is located in an ara

designated attaient or unclassifable

for any crteria pollutant. PSD review

would not apply to any nonattaient

pollutant. Unle the approach proposed

on September 5, in order for PSD review

to apply, the modication need not

increase emissions of a pollutant for

which the source is major, nor need the

source be major for a pollutant for

which the ara is desigated attaient

or unclassifable.

EPA believes that th approach is

requid by Alabama Power and

sections 165(a) and 169(1) of the Act.

Section 165(a) states that "(nlo major

emitt facity on which constrction is

commenced afer the date of the

enactment of (par C of the Act). may be

constrcted in any ara to which th

part i¡pplies uness" the conditions set

out in section 165(a) are met. Alabama

Power held that th proviion must be

interpreted lieraly and that, in

particular. EPA should focus on the

location of the soure, not its impact.

See 13 ERC at 2012-206. Today's action

provides the necessar lieral

interpretation. A "major emtti

facilty" is defied in section 169(1) as a

source which would emit at lea'lt 100 or

250 tons per year (tpy) (dependin on

the tye or soure) or "any" pollutant.

Ths would cover both crtiera

pollutants, ror which national ambient

air quality standars have been

promulated. and non-crteria pollutants

subject to reguation under the Act.

Section 165 rerers to an "area to which

ths part (part C) applies," which the

Court in Alabaa Power interpreted to

mean "clean air areas," i.e. areas

designated puruant to section 107 as

attaient or uncIassifable ror a

particular ai pollutant 13 ERC at 203.

See also sections 161, 162 and 167 or the

Clean Air Act. But neither scction 165

nor section 169(1) li the pollutant for

which the soure is major and the

pollutant ror which an area is

designated attaient or unclassifable.

Read literally, section 165a) applies

PSD preconstrction review to al

soures that ar major ror any pollutant

subject to reguation under the Act and

locate in an area desigated attaient

or unclassifed for any pollutant.

Section 165(8) alo does not li

review of a particular pollutant to the

attainent statu ror that pollutant or

liit review to pollutants for which a

soure is major. Rather, read lieraly,

section 165(a) applies PSD review to all

pollutants subject to reguation under

the Act emitted by the source providcd

that the soure is major rorsome

pollutant and is located in a clean ai

area for some pollutant However,

implicit in Alabama Pou'er and the

strctue of the Act is a recogntion that

where nonattainent pollutants are

emitted in major amounts (i,e.. where a

soure emits in major amounts a

pollutant for which the area in which the

source would locate is designated

nonattainent), Part D NSR rather than

Part C PSD review should apply to these

pollutants (see below). PSD re\iew does

not apply to the nonattainent

pollutants emitted by the source

otherwe subject to review.

C. Nonaltai'nient Applicabilty

On May 13. 198, 45 FR 31307, EPA

promulated a fial rue settig out the

applicabilty of nonattaient review or

new and modied soures. In brier. EPA

clared that the constrction

moratorium under section 110(a)(2)(I

and NSR under the Offet Rul and

section 173 apply to al major

constrction proposed in such aras.

This applicabilty is unafected by the

particular ai quality levels with the

designated nonattaent area which

would be caused or impacted by the

proposed major sour or major

modication. States sti ar requid

under section 110(a)(2)(O) to review new

or modied sources locatl outside of

92

nonattaent aras, but causg or

contrbutig to a violation or an ambient

air qualty standard; however, review

need not meet al of the nonattaient

requients under section 173 and the

offset policy.

The cut reguations conceg

pollutant applicabiltyJn nonattaient

areas ha\'e not been changed. These

rues ar diernt from the PSD

pollutant applicabilty rues. Major

sources ar subject to review under the

Offset Rulg. section 173. and the

constrction moratorium only if they

emU in major amounts the pollutat(s)

for which the ara is designated

nonattaient. In addition. onl:rthose

nonattaient pollutants which the

source emts in major amounts are

subject to re..iew or the constrcton

moratorium. Simarly, only if a

modication increases emssions of a

pollutant ror which the sou is major

and ror which the area is designted

nonattaent do nonattaient

requiments apply. The basicrationae

for these restrctions is that secton

110(a)(2)(1. which conta the

constrction moratorium. restrcts the

constrcllon moratorium to pollutants

ror which the soure is major and for

which the area is desiated

Donattaient. Since there is no

requiement simar to the one in secton

165(a) that subjects a sour to re\iew

for al reguated pollutants it emts once

it is subject to re\iew for one pollutat.

pre constrction re\iew under the Ofet

Rul and section 173 is restrcted in

the same maner as the constrcton J ,

moratorium.

For e.xaple, constrcton or a new

plant \'ith potential emssions of 50 tpy

PM and 50 tpy 502 in an area designated

Donattaient ror both PM and 802

would be subject to nonattaient

requiements for PM onI~', sice the

sotDe js mior for 8020 Simly,

modication of ths plant resutig in a

net increase in emissions of 50 tpy in

S02 would not be subject to

Donattaient requiements. See alo

examples (3). (4), and (7).

D. Case E:comples

The following additiona e.xaples

ilustrte how applicabilty orPSD

requiements wi work under today's

fial reguations:

(1) Constrction of a new plant with

potential emsions or 50 tpy PM and 50

tpy 502 in an ara designated

attaient for both PM and 502 would

be subject to PSD review for both PM

and 502.

(2) Constrction of the same plant as

in example (1), but in an ara designated

attainent for S02 and nonattent

for PM, would be subject to PS review

EPA Response to Stay Motion

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52722 Federal Register I Vol. 45, No. 154 I Thursday, Augst 7, 1980 I Rules and Regulations

source operating conditions. Ths wil

protect against large uneviewed

emissions increases. While EPA is not

promulgating a reportig requiement

today, it wil reconsider the need for a

notification system if it finds that

unrevlewed emissions increases are

causin or contrbuti to increment

violations:

2. Double Counti of Emssions

Decreases.

EPA is concerned about another

potential problem: double counti of

emissions decreases. The problem could

arise if an existi source (Source A) .

reduces its actual emissioIls and a new

source (Source B) seekig to locate in

the area proposes to use the decrease

when modelù increment consumption.

Source B would do ths by includig the

emissions decrease in its modelin of

actual emissions from Source A. If the

reviewin authority does not requie

Source B to ensure that the decrease at

Source A is federally enforceable and

does not record Source B's use of the

decrease at the tie Source B conducts

its modeli, Source A may well use the

same decrease to offset a futue

contemporaneous increase at Source A

and thereby avoid PSD review for the

increase. The use of one emissions

decrease to offset two emissions

increases could lead to air qualty

deterioration, and possible increment

violations that would requie correction

before more PSD permts could be .

issued.

While EPA believes double counti

of decreases should not be permitted, it

is not promulgati reguations today to

address the problem. EPA is 'uncertai

how often, ü ever, the problem wi

arise. Certainy it wi be dicult for a

new source to prove to the satisfaction

of the reviewi authority the value of

an emissions decrease accomplished at

another source. Moreover, whie BFA

believes double counti of decreases

should not occur, it is uncerta what

solution is equitable for afected

sources. In the absence of a formal '

increment bang system, or other

provisions reguati increment

allocation, the reviewi authority , .

would have no basis for denyig Source

B use of any available increment. Ths

could result in hardsWp to Source A ü it

deprIves Source A of use of its decrease

as an offset for future increases.

The issue of double countig is part of

the broader question of increment

management and allocation of air

quality rights. BFA intends to develop

bankg regulations, which wi include

guidance to states on methods of

increment allocation and regulati use

of emissions decreases. To ths end,

EPA solicits sugestions on how to

'prevent double countig of decreases

and on methods of increment allocation

and management.

XV. Best Avaiable Control Techology

Section 165 of the Act provides in par

that any "major emitti facilty"

constrcted in a PSD area must apply

best avaiable control technology

(BACT) "for each pollutant subject to

reguation under ths Act emitted frpm,

or which re-sults from, such facity."

Section 169(3) of the Act defies BACT

and specicaly requies that it not be

applie!l in a maner so as to result in

emissionS in excess of those that are

allowed by standards. established

pursuant to sections 111 or 112 of the

Act. 42 U.S.C. 7479(3). The Agency's

existi reguations requied BACT only

for each pollutant for which a source or

modication would be "major." 40 CP

51.4(i)(1), 52.21(i)(1J(1978).

The Alabama Power decision held

that the Act requies that BACT be

applied to al pollutants' subject to

reguation'under the Act, not only those

for which the source is major, and that

BFA is with,out authority to circuscrbe

. the requiement iI ths maner. 13 ERC

1993, 2046. The cour did conclude,

however, that EPA has authority to set

de miniis thesholds for BACT

applicabilty, in order to alleviate

economic and admstrtive burdens.

ld.

In responslf to the cour's decision,

EPA proposed and is now promulgati

reguations regardi application of

BACT. 40 CP 51.24(k)(1), 5Z.Z1(k)(1).

With respect to new major stationar

sources, BA.CT.wi be requied for each

reguated pollutant emitted in excess of

speciféd de minimis amounts.

Application of BACT is also requied, in ,

,the case of major modications, for each

reguated pollutant emitted for which

there is a signcant net emission

increase (greater than de minimis

amounts) at the source. The BACT

requiement applies to only the modied

unts and added unts at the 1I0urce

whose constrction results in a sourcewide signcant net increasè in the

emissions of the reguated pollutant. The

new BACT requiements apply only to

the owner or operator of a PSD source

or modication whose application for a

PSD permt was not complete before

today's promulation., (See Transition).

The de minimis emissions rates

promulgated by the Admstrator (see

De Minimis Exemption) wi apply to

both BACT and LA requiements. The

Agency specifcaly solicited comments

on the need to specif de minimis levels

Jor BACT, since the case-by-case BACT '

determiations would presumably take

de miimis levels and such related

93

issues as cost into account. Twenty-six

commenters addressed ths issue.

Seventeen agreed in priclplo but

generally considered the proposed

levels too low and requested specliil

consideration for pollutants emitted in

less than major amounts. Eight of nine

dissenters preferred case-by-case BACT

determations, with no de minimis

values.

. The Adminstrator is implementing

the proposed de minimÌs approach for

determg BACT applicability,

although several values have beon

increased. (See De Minimis

Exemptions.) Ths action should

alleviate ile concerns of those

commenti about the need for BACT

review of those pollutants emitted In

smal amounts. The Agency also

solicited comments on the potential

problem of a soure obtainng lenIent

BACT'determinations and later applyIng

belter controls to offset additlonl1l

expansion plans. Twelve of thteen

commenters addressing this issue

concluded that no such problem would

arse. They claimed that it would be

implausible to suppose that state

programs and BFA regional ofIces

would evade such responsibility,

especially since loose BACT

determations would result in

accelerated consumption of increment.

The Admistrator agrees that there

appears to be adequate protection

against loose BACT determnations.

Each of the thee comments that

addressed a need to phase in the BACT

requirement favored a six month to one '

year grace period because of tho

complexity of the program. Howevor,

the Admstrator believes that the cosoby-case flexibilty of BACT

determations is sufficIent to phase in

these reguations. Moreover, sourcos

have effectively had a one yenr notice,

in that the origial Alabama POW81'

decision, published June 16, 1979,

Inormed them of the new BACT

requiements. (See Transiton.)

An additional issue, regardi the

pollutant applicabilty of tho BACT

requiement, arose durg the comment

period. The proposal requlred BACT for .

the new or modified emissions unts

which were associated with the

modication and not for those

unchanged emissions unts at the same

source. Thus, ü an existi boller at a

source were modifed or a new bailor

added in such a way as to signifcantly

increase particulate emissions, only thaI

boiler would be subject to BACT, not .

. the other emissions unts at the source.

However, the proposal could be

interpreted as requirig BACT for

certain pollutants where the

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Federal Register I Vol. 45, No. 154 I Thursday, August 7, 1980 I Rules and Reguations 52723

Admstrator did not intend to require

BACT. For example, the proposal could

be interpreted as requig BACT review

for any pollutant emitted from a source

that was modied, regardless of

whether the emissions of the pollutant

increased. However, that was not the

Agency's intent.

If a new unt were added or if a

modication were made to a unt at a

source, but there are contemporaneous

decreases in emissions elsewhere at the

source, BACT is requied only for the

pollutats for which there is a net

.signcant plant-wide increase. For

example. consider the addition of a

boiler whose emissions of PM, SO,. and

NO" each exceed de minimis levels. If,

at the same tie. an emission unt of

S02 elsewhere at the source were shut

down. such that plant-wide emissions of

SO, either do not increase or increase

by less than a de mimis amount,

BACT is requied for the new boiler only

for PM and NO". Of course, BACT wi

not be requied if there is no sigcant

plant-wide increase in emissions of any

. pollutant. Simarly. if an exsti

emissions unt of a source were

modied such that there is an emissions

increase for one or more pollutats. but

not al. BACT is requied only for the

pollutats for which there is both a net

increase at the unt and a net signcant

plant-wide increase.

The above fial policy govern the

applicabilty of BACT to modications

is also consistent with existi policy

under section 111, which the court said

should govern modication concern.

The applicable reguation. 40 CP

6O.14(a), states that "any physical or

. operational chane to an existi facity

which results in an increase in the

emissions rate to the abnosphere of any

pollutant to which a standard applies

shall be considered a modication

with the mean of section 111 of the

Act. Upon modication, an existig

facilty shal become an affected facilty

for each pollutant to which a standar

applies and for which there is an

increase in the emissions rate to the

abnosphere." (Ephasis added.)

The reguation cited above makes two

important statements about the

applicabilty requiements. First, the

BACT requiements apply only with

regar to .those pollutants for which

there hasbeen a net signcant increase.

Ths was emphasized by the Alabama

Power decision: "Congess wished to

apply the permt process, then only

where industrial chanes might increase

pollution in an area, not where an

existi plant chaned its operirons in

ways that produced no pollution

increase * * *. The interpretation of

'modification' as requiring a net increase

is thus consistent with the purose or

the Act * * *. The EPA has properly

exempted from best available conlrl

technology (BACT and ambient air

quality review those 'modications' or a

soure that do not produce a nel .

increase in any pollutant." 13 ERC al

203.

Second, BACT is requied for net

significant ìncrases or any pollutant

reguated under the Act, regaress or

the category or soure involved or the

emissions standar generaly

applicable to it. Section 165(a) (4) of the

Act requis application of BACT "for

each pollutant subject to reguation

under ths Act" eniited frm a subject

racilty. 42 U.S:C. 7475(a)(4). Ths

includes not only crteria pollutants but

also all pollutants reguated under NSPS

or NESHA.1n ths maner, BACT ca

complement the NSPS process by

.extendi coverage to additional soure

tyes and unts and perhaps identi

candidates for futu NSPS and

NESHA reguations.

XV. Monitorig

in Alabama Power, the courl held that

section 165(e)(1) of the Act requis an

ambient ai quality analysis for each

pollutant subject to reguation under the

Act that a proposed soure or

modication would emit, prior to

applyi for a PSD permt. Since exstig

PSD reguiitions requi monitorig only

for crteria pollutants emitted in major

amounts, EPA responded to the June 18,

1979 per curiam opinon by proposin to

requie, for criteria and noncrteria

pollutants, an air qualty analysis that

would generaly include monitori

data. In order to gather and analyze the

appropriate data necessary to apply ror

a PSD permt, a proposed soure would

have to establlsh an appropriate

monitori network or would bave to

gather and analyze representative air

monitori data resulti frm ongoin

monitori activities.

l\s proposed, pre constrction

monitori data was requid as part of

the air quality analysis when: (1) the

estiated ambient impact of any new

pollutant emissions frm the stationiu

soure or modification would be larer

than the pollutant specifc de minimis

ai quality concentration (Table B)¡ or

(2) the new emissions or net emissions

incrases ror the pollutant would be

major (100/250 tons per year). In

addition to ths rue, EPA proposed that

a case-by-case analysis or the proposed

stationar source or modication which

would impact on a Class I ara be

conducted even though Ute anticipated

impact would fall below the de minimis

level. Later, in October 1979, EPA

94

pro\ided rurther gudance ror appl~'Ìg

these requiements in the draft re\ision

of the Ambient Monitoring Guidelines

for Prei'ention orSignificant

Deterioration (PSD). OAQPS 1.2-0,

U.S. BFA, Offce or Ai Quality Plamg

and Standars and Offce of Research

and Development, RTP. NC 271.

The proposal stated that cerai

noncrteria pollutants (sulc acid mist.

cabon disulde, cabonyl sulde,

methyl merptan diethyl disulde,

and diethyl sulde) wer lackg

measurment methods approved by

BFA. Unti such tie as approved

tecbques would become avaiable, the

Agency proposed to use mathematica

modelig to estiate the ai qualty

resulti frm the emissions of these

pollutants. ConsIder these litations

and the gener lack of exerience in

monitorig on a routie basis, the

Admstrtor proposed to implement

noncrtera pollutant monitori

requiments on a case-by-case basis.

In addition to the preapplication

mOnitorig requiments alady

descrbed. EPA's proposal included

discretioniu authority ror requg

post-constrction monitori to

detere the efects Dr the new

emissIons on exsti ai qualty. For

cases in which larer pollutant emssion

impacts ar anticipated, postconstrction monitorig ca be a

particuarly usef aid in adjusg

modeUng results used to predict

cøncentrtions resultig frm the J,

soure's opertion. The approach was

thougt to be responsive to the Alabama

Power decision which requid EPA to

use monitors to help refie model

techques. Accordiy, EPA proposed

to genery requi post-constrction

monitorig frm lare soures or

particuate matter and sul dioxide.

Other sources whose emssions are

estiated to resut in ai qualty levels

approach an alowable incrent or

a NAAQS could also be requid to

submit post-constrction monitori

data. The rue promulgated today is

consistent with the proposal

The Admstrtor believed that the

requied monitorig data would be most

productive in checkg the accucy of

models and, in some cases, could be

used to calcuate incrent

consumption. If an applicat or other

party believes that a model requied by

BFA had either overpredicted or

underpredicted the air qualty impact of

a source, EPA staled that monitorig

data would be evaluated to the exent

possible to detere whether

adjustments would be nei;essar. EPA

anticipated that the futue development

or more sophisticated monitorig

EPA Response to Stay Motion

Exhibits

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 95