Enclosure 4-1 

ENCLOSURE 4 

COMMENT LETTER RECEIVED IN RESPONSE TO FALIFORNIA 

INFRASTRUCTURE SIP 

VIA U.S. MAIL AND ONLINE

January 22, 2014 

California Environmental Protection Agency Air Resources Board 

Byron Sher Auditorium 

1001 I Street 

Sacramento, CA 95814 

Re: Comments Concerning California’s Section 110(a) Infrastructure State

Implementation Plan (SIP) Submittal for 2008 Ozone and 2010 Sulfur Dioxide

NAAQS

To Whom It May Concern: 

On behalf of the Sierra Club, its over 143,000 members in California, and others who are

adversely impacted by California’s sources of ozone and sulfur dioxide (“SO2”) pollution, we

submit the following comments on California’s proposed Infrastructure State Implementation 

Plan (“SIP”) addressing the requirements for the 2008 eight-hour ozone and 2010 one-hour 

sulfur dioxide National Ambient Air Quality Standards (“NAAQS”), required by sections 

110(a)(1) and (2) of the Clean Air Act (“CAA” or “Act”). 42 U.S.C. § 7410(a)(1) & (2). We

submit these comments and exhibits as notice that the submission fails to comply with the 

requirements of CAA sections 110(a)(1) and (2).1

The primary NAAQS define the levels of air quality that the EPA Administrator 

determines to be necessary to protect public health with an adequate margin of safety. See 42 

U.S.C. § 7409(b)(1). In 2008, EPA revised the primary ozone standard to 75 parts per billion 

(“ppb”) of the annual fourth-highest daily maximum eight-hour concentration averaged over 3 

year. In 2010, EPA determined that a primary SO2 NAAQS of 75 ppb from the 99th percentile

of one-hour daily maximum concentrations averaged over 3 years is necessary to protect public 

1 All exhibits and a copy of these comments can be found at

https://app.box.com/s/rq3e8rzy6gwqpx7iogks 

 
Enclosure 4-2 

health. These revised standards if properly implemented will result in improvements in public 

health (including preventing premature deaths) and the environment. 

When EPA revised the ozone standard, EPA recognized it was providing increased 

protection for public health, especially for children, the elderly, and asthmatics. This standard is 

meant to protect “against an array of O3-related adverse health effects that range from decreased 

lung function and increased respiratory symptoms to serious indicators of respiratory morbidity 

including emergency department visits and hospital admissions for respiratory causes, and 

possibly cardiovascular-related morbidity as well as total nonaccidental and cardiorespiratory 

mortality.” See National Ambient Air Quality Standard for Ozone, 73 Fed. Reg. 16,436, 16,436 

(Mar. 27, 2008). Further, increased ozone levels may contribute to premature death, especially 

in people with heart and lung disease. Ozone also damages vegetation and trees, including 

forests, parks, and crops. EPA estimates that the 2008 eight-hour ozone NAAQS has the

potential to avoid 260 to 2,000 premature deaths annually as of 2020. The total benefits in ozone

reduction from this standard are estimated to save $2 to $17 billion per year. EPA, FACT SHEET:

FINAL REVISIONS TO THE NATIONAL AMBIENT AIR QUALITY STANDARDS FOR OZONE, at 1-3 

(2008), at http://www.epa.gov/glo/pdfs/2008_03_factsheet.pdf. In fact, 2011 and 2012 ozone

ambient monitoring data indicate that EPA’s estimates of the health benefits from reducing 

ozone exposure may have been low.2

In 2010, EPA determined that a primary SO2 NAAQS of 75 parts per billion (“ppb”) is 

necessary to protect public health from the serious threats posed by short-term exposure to SO2, 

including decreased lung function, increased respiratory symptoms such as chest tightness, 

wheezing, and shortness of breath, and other serious indicators of respiratory illness, especially 

in asthmatics, children, and the elderly. See generally Primary National Ambient Air Quality 

Standard for Sulfur Dioxide; Final Rule, 75 Fed. Reg. 35,520, 35,526-27 (June 20, 2010) 

[hereinafter “Final SO2 NAAQS Rule”]. The health data relied upon by EPA in promulgating 

the new standard overwhelmingly indicates that increased asthma attacks and hospital visits are

attributable to short-term concentrations of sulfur compounds in the air. Id. 

California Environmental Protection Agency (“CalEPA”) must properly implement the

2008 ozone and 2010 SO2 standard to prevent serious impairments and other adverse impacts 

caused by exposure to these pollutants and to protect public health. 

2 In 2012, much of the country experienced record high temperatures and very high ozone levels. 

However, the 2008 ozone NAAQS benefit analysis was based on 2008 ozone levels and thus did 

not consider the more accurate, higher ozone levels that were experienced in 2012. Current

science indicates that temperatures experienced during 2012 will be common in the future due to 

climate change. If we do not reduce greenhouse emissions rapidly and substantially, the hottest

summer of the last 20 years is expected to occur every other year, or even more frequently. See, 

e.g., “Changes in Ecologically Critical Terrestrial Climate Conditions,” Science, 2 Aug. 2013, 

Vol. 341, no. 6145, 486-492. Therefore, the benefit analysis likely underestimated the amount of 

ozone reductions the 2008 ozone NAAQS will require and consequently the benefit the standard 

will provide. 
Enclosure 4-3 

I. LEGAL BACKGROUND

The Clean Air Act creates a framework for the “development of cooperative Federal, 

State, regional, and local programs to prevent and control air pollution.” 42 U.S.C. § 7401(a)(4). 

Pursuant to section 109(b)(1) of the Act, EPA has established primary NAAQS for six criteria air 

pollutants, “the attainment and maintenance of which . . . are requisite to protect the public

health.” Id. § 7409(b)(1). States have “primary responsibility” for assuring air quality within the

state. Id. § 7407(a). Following promulgation of a NAAQS, the Act requires that a state shall

“adopt and submit to the Administrator . . . a plan which provides for implementation, 

maintenance, and enforcement of such primary [NAAQS].” Id. § 7410(a)(1). For attainment 

and unclassifiable areas, section 110(a)(2)(A) requires that these plans (which EPA refers to as 

Infrastructure SIPs or “I-SIPs”) “include enforceable emission limitations . . . as well as 

schedules and timetables for compliance, as may be necessary or appropriate to meet the

applicable requirements” of the Clean Air Act, including the requirement to maintain the

NAAQS. 42 U.S.C. §§ 7410(a)(2)(A), 7410(a)(1); Conn. Fund for Env’t, Inc. v. EPA, 696 F.2d 

169, 172 (2d Cir. 1982) (CAA requires that SIPs contain “measures necessary to ensure the

attainment and maintenance of NAAQS”); Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 

1180 (9th Cir. 2012) (“The Clean Air Act directs states to develop implementation plans— 

SIPs—that ‘assure’ attainment and maintenance of national ambient air quality standards 

(“NAAQS”) through enforceable emission limitations.”) (citing 42 U.S.C. §§ 7407(a), 

7410(a)(2)(A)); Hall v. EPA, 273 F.3d 1146, 1153 (9th Cir. 2001) (“Each State must submit a

[SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within 

each air quality control region in the State”) (internal citations omitted); see also EPA, “Sulfur 

Dioxide Implementation—Programs and Requirements for Reducing Sulfur Dioxide,” available

at http://www.epa.gov/airquality/sulfurdioxide/implement.html. 

 

EPA may approve an Infrastructure SIP only if it finds that the SIP meets a number of 

requirements identified in section 110(a)(2) of the Act. See 42 U.S.C. § 7410(a)(2)(A)-(M). The

state bears the burden of demonstrating that its SIP submission satisfies the standards of 

section 110(a)(2). Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181, 183, 185 (6th Cir. 

2000) (affirming EPA’s rejection of a SIP proposal where the state “failed to offer evidence that

[the] proposed rules will not interfere with the attainment and maintenance of the NAAQS.”). 

For a plan to be adequate, it “must demonstrate that the measures, rules, and regulations 

contained in it are adequate to provide for the timely attainment and maintenance of the national

standard that it implements.” 40 C.F.R. § 51.112(a) 

A. The Plain Language and Legislative History of the Clean Air Act Require

That Infrastructure SIPs Must Impose Emission Limits Adequate to 

Prevent NAAQS Exceedances in Areas Not Designated Nonattainment

The Clean Air Act, on its face, requires I-SIPs to be adequate to prevent exeedances of 

the NAAQS. As noted above, following promulgation of a NAAQS, a state must “adopt and 

submit to the Administrator...a plan which provides for implementation, maintenance, and 

enforcement of such [NAAQS].” 42 U.S.C. § 7410(a)(1). Pursuant to section 110(a)(2)(A), this 

I-SIP must “include enforceable emission limitations...as well as schedules and timetables for 

 
Enclosure 4-4 

compliance, as may be necessary or appropriate to meet the applicable requirements” of the

Clean Air Act (which include the requirement to maintain compliance with the NAAQS). Id. § 

7410(a)(2)(A) (emphasis added). As defined by the Act, the term “emission imitation” means “ 

a requirement established by the State or the Administrator which limits the quantity, rate, or 

concentration of emissions of air pollutants on a continuous basis, including any requirement

relating to the operation or maintenance of a source to assure continuous emission reduction, and 

any design, equipment, work practice or operational standard promulgated under this chapter.” 

Id. § 7602(k). Thus, the plain language of section 110(a)(2)(A) requires that I-SIPs include 

enforceable emission limitations on sources sufficient to ensure maintenance of the NAAQS. 

The legislative history of the Clean Air Act supports this interpretation. As the Senate

Committee Report accompanying the 1970 Clean Air Act explained, the Act “would establish 

certain tools as potential parts of an implementation plan and would require that emission 

requirements be established by each State for sources of air pollution agents or combinations of

such agents in such region and that these emission requirements be monitored and enforceable.”

Sen. Cmte. on Pub. Works Rpt. at 12 (Sept. 17, 1970) (emphasis added), Attached hereto as 

Exhibit 1. This was reaffirmed in the subsequent Senate Conference Report, which stated that:

“In order to implement the national ambient air quality standards, these [state implementation] 

plans must provide for emission limitations on all services in the region covered by the plan, 

together with schedules and timetables of compliance, systems for monitoring both ambient air 

and emissions from individual sources, and adequate enforcement authority.” Sen. Conf. Rpt., 

116 Cong. Rec. 42,381, 42,384 (Dec. 18, 1970) (emphasis added), attached hereto as Exhibit 2.3

B. EPA Regulations Implementing the Clean Air Act Require That 

Infrastructure SIPs Must Impose Emission Limits Adequate to Prohibit 

NAAQS Exceedances in Areas Not Designated Nonattainment

EPA regulations implementing section 110(a)(2) also require that I-SIPs must be

adequate to prohibit exceedances of the NAAQS. Pursuant to these regulations, in order for a

SIP to be approved by EPA, it “must demonstrate that the measures, rules, and regulations 

contained in it are adequate to provide for the timely attainment and maintenance of the national

standard that it implements.” 40 C.F.R. § 51.112(a). The regulation clearly states that all SIPs 

3 Although the language of current section 110(a)(2)(A) was originally found in section 

110(a)(2)(B), the substance has remained true to the statements found in the Senate Committee

Reports. There were only two substantive changes between 1970 and the present. First, the

addition of former section 172(c)’s requirement that SIPs’ emission limitations, schedules, and 

timetables be “enforceable.” See Rpt. of the Senate Cmte. on Envt. and Pub. Works 

accompanying the Clean Air Act Amendments of 1989 at 20 (Dec. 20, 1989) (explaining that

“Paragraph (1) of rewritten section 110(c) combines and streamlines existing section 

110(a)(2)(b) and the enforceability requirements of section 172(c) of current law”), attached 

hereto as Exhibit 3; see also 42 U.S.C. § 7502(c) (section 172(c)) (requiring that a SIP revision 

submitted before July 1, 1982 pursuant to a demonstration under subsection (a)(2) “shall contain 

enforceable measures to assure attainment of the applicable standard not later than December 1, 

1987”). Second, the clarification in the 1990 Clean Air Act Amendments that the “means[] or 

techniques” for meeting the requirements of the Act included “economic incentives such as fees, 

marketable permits, and auctions of emissions rights.” 42 U.S.C § 7410(a)(2)(A). 
Enclosure 4-5 

must contain emission limits that adequately ensure the NAAQS is achieved. See 40 C.F.R. 

§ 51.112(a). Although these regulations were developed before the Clean Air Act separated 

Infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments 

and was completed by the 1990 amendments—the regulations nonetheless apply to I-SIPs. EPA 

has not changed the regulation since 1990, and in the preamble to the final rule promulgating 40 

C.F.R. § 51.112, EPA expressly identifies that its new regulations were not implementing 

Subpart D, the new nonattainment provisions of the Act. See Air Quality Implementation Plans;

Restructuring SIP Preparation Regulations, 51 Fed. Reg. 40,656, 40,656 (Nov. 7, 1986) (“It is 

beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . . .”). 

Consequently, 40 C.F.R. § 51.112 was intended to apply to I-SIPs. Thus, it is clear that I-SIPs 

must contain “measures, rules, and regulations” sufficient to ensure maintenance of the NAAQS. 

C. Prior EPA Interpretations of the Act Require That Infrastructure SIPs 

Must Impose Emission Limits Adequate to Prohibit NAAQS Exceedances 

in Areas Not Designated Nonattainment

EPA has relied on section 110(a)(2)(A) and 40 C.F.R. § 51.112 on multiple occasions to 

reject Infrastructure SIPs that did not contain specific emissions limits sufficient to demonstrate

attainment and maintenance of the NAAQS. For example, in March 2006, EPA disapproved 

Missouri’s attempt to revise the sulfur dioxide emission limits in its I-SIP for two power plants 

because the new emission limits would not ensure maintenance of the short-term sulfur dioxide

NAAQS. See Approval and Promulgation of Implementation Plans; State of Missouri, 71 Fed. 

Reg. 12,623, 12,624 (Mar. 13, 2006). In so doing, EPA explained that “Section 110(a)(2)(A) of 

the [Act] requires, in part, that the [state implementation] plan include emission limitations to 

meet the requirements of the Act, including the requirement in section 110(a)(1) that the plan 

must be adequate to attain and maintain ambient air quality standards.” Id. EPA further 

explained that “40 CFR 51.112 requires that the plan demonstrate that rules contained in the SIP 

are adequate to attain the ambient air quality standards.” Id. In the case of Missouri’s proposed 

I-SIP, EPA expressed concern that the sulfur dioxide emission rates for the two power plants in 

question were “not protective of the short-term sulfur dioxide NAAQS”, because while Missouri

had lowered the emission rates for the facilities, it had dramatically increased the averaging 

times (from a 3-hour average to an annual average) without providing “a demonstration, as 

required by the [Clean Air Act] and EPA regulations, that the [sulfur dioxide national ambient air 

quality] standards, and particularly the three-hour and the twenty-four hour standards, can be

protected by an annual emission limit.” Id.

More recently, in December 2013, EPA rejected a revision to Indiana’s sulfur dioxide 

SIP pursuant to 40 C.F.R. § 51.112, because Indiana failed to demonstrate that the SIP as revised 

was sufficient to ensure maintenance of the sulfur dioxide NAAQS. See Approval of Air Quality 

Implementation Plans; Indiana; Disapproval of State Implementation Plan Revision for 

ArcelorMittal Burns Harbor; Final Rule, 78 Fed. Reg. 78,720, 78,721 (Dec. 27, 2013). Indiana

had submitted a request to EPA to revise its sulfur dioxide SIP for the ArcelorMittal Burns 

Harbor facility to remove the sulfur dioxide emission limit for the blast furnace flare at the

facility. Id. In the proposed disapproval, EPA explained that “[u]nder 40 CFR 51.112(a), each 

SIP must demonstrate that the measures, rules, and regulations it contains are adequate to 

provide for the timely attainment and maintenance of the NAAQS.” See Approval of Air Quality 
Enclosure 4-6 

Implementation Plans; Indiana; Disapproval of State Implementation Plan Revision for 

ArcelorMittal Burns Harbor; Proposed Rule, 78 Fed. Reg. 17,157, 17,158 (Mar. 20, 2013). 

Because Indiana did not demonstrate that the ArcelorMittal blast furnace gas flare’s existing 

emission limit was “redundant, unnecessary, or that its removal would not result in or allow an 

increase in actual SO2 emissions,” and, consequently, that removal of the limit would not “affect

the validity of the emission rates used in the existing attainment demonstration, thus undermining 

the SIP’s ability to ensure protection of the SO2 NAAQS,” EPA rejected the proposed 

amendment. Id. at 17,159; see also 78 Fed. Reg. at 78,721. 

Indeed, while in its recent Infrastructure SIP guidance EPA purported to postpone certain 

I-SIP start-up, shutdown, and malfunction (SSM) requirements, nowhere in that guidance does 

EPA discuss postponement of any other I-SIP requirement.4 See U.S. EPA, Guidance on 

Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Section 110(a)(1) 

and 110(a)(2), at 19-20 (Sept. 13, 2013) [hereinafter “EPA I-SIP Guidance”]. This is simply a

further indication that the CAA requires I-SIPs to include emission limits adequate to ensure 

attainment of the NAAQS and that the imposition of such limits may not be delayed. 

D. Supreme and Appellate Court Opinions Hold That Infrastructure SIPs 

Must Impose Emission Limits Adequate to Prohibit NAAQS Exceedances 

in Areas Not Designated Nonattainment

Since the inception of the modern Clean Air Act in 1970, courts have interpreted the

language presently found in section 110(a)(2)(A) to require that SIPs contain enforceable

emission limits sufficient to prevent exceedances of the NAAQS. In Train v. NRDC, a seminal

case on SIP approval requirements, the Supreme Court explained that: 

In complying with this requirement [that a SIP provide for attainment and 

maintenance of the NAAQS] a State’s plan must include ‘emission limitations,’ 

which are regulations of the composition of substances emitted into the ambient

air from such sources as power plants, service stations, and the like. They are the

specific rules to which operators of pollution sources are subject, and which if 

enforced should result in ambient air which meets the national standards. 

421 U.S. at 78; see also id. at 67 (citing language from then-current section 110(a)(2)(B) now 

found in section 110(a)(2)(A)). 

Courts of appeals have echoed the same conclusion. For example, in Pennsylvania 

Department of Environmental Resources v. EPA, the Third Circuit stated that the Clean Air Act

“directs the EPA to withhold approval from a state implementation plan if the ‘maintenance of 

[the] standard’ cannot be assured.” 932 F.2d 269, 272 (3rd Cir. 1991).5 The court observed that 

4

 Sierra Club disagrees, moreover, with EPA’s apparent postponement of those same SSM 

requirements; such postponement is unsupported by the CAA. 

5

 The court was interpreting the 1977 version of the statute in which Subpart 1 of Part D had 

been added, id. at 271 n.1, but relied on the language of then-current section 110(a)(2)(B) (now 

found in section 110(a)(2)(A)). Pennsylvania Department of Environmental Resources, 32 F.2d 

at 272. 
Enclosure 4-7 

the “need to maintain the Clean Air Act standards once they are reached is well-recognized by 

the Courts.” Id. Other courts have provided similar analyses. In Mision Industrial, Inc. v. EPA, 

for example, the First Circuit explained that, “[b]efore approving an air quality implementation 

plan or revision, the Administrator must determine that it ‘includes emission limitations . . . and 

such other measures as may be necessary to insure attainment and maintenance of (the) primary 

or secondary standard . . . .’” 547 F.2d 123, 129 (1st Cir. 1976) (quoting former section 

110(a)(2)(B)). 

The 1990 Clean Air Act amendments do not alter this picture. Court decisions since the

1990 amendments have continued to hold that I-SIPs must have emission limits that maintain the

NAAQS. In Alaska Department of Environmental Conservation v. EPA, the Supreme Court

explained that an Infrastructure SIP under CAA section 110(a)(1) must be a “plan which 

provides for implementation, maintenance, and enforcement of [NAAQS].” 540 U.S. 461, 470 

(2004) (quoting section 110(a)(1)). “While States have wide discretion in formulating their plans 

. . . SIPs must include certain measures Congress specified to assure that national ambient air 

quality standards are achieved.” Id. (internal citations and quotations omitted). Thus, in order 

for EPA to approve, a SIP, it “must ‘include enforceable emission limitations and other control

measures, means, or techniques . . . as may be necessary or appropriate to meet the applicable

[CAA] requirements.’” Id. (quoting 42 U.S.C. § 7410(a)(2)(A)). 

The circuit courts have also been clear that section 110(a)(2)(A) from the post-1990 

Clean Air Act requires enforceable emission limits in I-SIPs. For example, as noted above, the

Ninth Circuit recently affirmed that “[t]he Clean Air Act directs states to develop 

implementation plans—SIPs—that ‘assure’ attainment and maintenance of national ambient air 

quality standards (‘NAAQS’) through enforceable emission limitations.” Mont. Sulphur &

Chem. Co., 666 F.3d at 1180 (citing 42 U.S.C. §§ 7407(a), 7410(a)(2)(A)) (emphasis added). 

And the Sixth Circuit has explained that “EPA’s deference to a state is conditioned on the state’s 

submission of a plan ‘which satisfies the standards of § 110(a)(2)’ and which includes emission 

limitations that result in compliance with the NAAQS.” Mich. Dept. of Envtl Quality, 230 F.3d 

at 185 (quoting Train, 421 U.S. at 79). 

Additionally, in Hall v. EPA, the Ninth Circuit held that EPA had not fulfilled its 

responsibility under another provision—section 110(l)6

—to evaluate whether a revised air 

quality plan will achieve the pollution reductions required under the Act. 273 F.3d at 1152. In 

Hall, EPA approved a revision to an air quality plan solely on the basis that the revisions did not

relax the existing SIP, rather than “measur[ing] the existing level of pollution, compar[ing] it

with the national standards, and determin[ing] the effect on this comparison of specified 

emission modifications.” Id. at 1157-58 (quoting Train, 421 U.S. at 93). EPA claimed a 

statutory equivalence between non-relaxation of rules approved in 1981 and non-interference

with current attainment requirements. Id. at 1155. The court rejected EPA’s application of the

“no relaxation” rule, finding it inconsistent with the Act because it set an improper baseline that

failed to take into consideration the 1990 amendments, which set new deadlines for attainment 

6 Section 110(l) provides, in relevant part, that “[t]he Administrator shall not approve a revision 

of a [state implementation] plan if the revision would interfere with any applicable requirement

concerning attainment and reasonable further progress . . ., or any other applicable requirement 

of this chapter.” 42 U.S.C. § 7410(l). 
Enclosure 4-8 

and established other new requirements for incremental progress towards attainment. Id. at 

1160-61. Those current attainment requirements were the baseline from which EPA should have 

measured “non-interference.” Id. EPA’s analysis was required to reflect consideration of the

prospects of meeting current attainment requirements under a revised air quality plan. Id. Based 

on the Ninth Circuit’s analysis, just as a plan revision must not interfere with attainment of the

NAAQS under section 110(l), an I-SIP must likewise include enforceable limits sufficient to 

ensure the initial plan provides for maintenance of the NAAQS under 110(a)(2)(A). 

II. THE CALIFORNIA INFRASTRUCTURE SIP IMPERMISSIBLY FAILS 

TO ADEQUATELY COMPLY WITH CLEAN AIR ACT SECTION 

110(a)(2)(A) AND TO ENSURE ATTAINMENT AND MAINTENANCE OF

THE 2008 OZONE AND 2010 SO2 NAAQS.

California’s Infrastructure SIP submission fails to include measures that sufficiently 

demonstrate that it will comply with CAA section 110(a)(2)(A), and therefore it cannot ensure

the proper implementation, maintenance, and enforcement of the 2008 ozone and 2010 SO2

NAAQS as required. As discussed, under section 110(a)(2)(A), the I-SIP must “include

enforceable emission limitations . . . as well as schedules and timetables for compliance, as may 

be necessary or appropriate to meet the applicable requirements” of the Clean Air Act (which 

include the requirement to maintain compliance with the NAAQS). Yet, California’s submission 

does not reference emission limitations or other required measures that ensure compliance. See

generally CalEPA, California Infrastructure SIP, [hereinafter “I-SIP Submission”]. 

The regulations that CalEPA cites are insufficient to ensure compliance with the 2008 ozone and 

2010 SO2 NAAQS. California’s regulations contain exemptions and variances that undermine its 

permitting and enforcement mechanisms, thus failing to ensure the attainment and maintenance of the

NAAQS. For example, many of the thirty-five air districts with the primary authority to control

emissions from stationary sources have exemptions for start up, shutdown, and malfunctions. See e.g., 

Amador County APCD, Rule 404: Upset Conditions, Breakdown or Scheduled Maintenance; El Dorado 

County APCD - Lake Tahoe Air Basin Rule 404: Upset Conditions, Breakdown or Scheduled 

Maintenance; El Dorado APCD - Mountain Counties Air Basin, Rule 516 Upset and Breakdown 

Conditions; and Great Basin APCD: Rule 403: Breakdown. Regulations that allow for exceedances of 

emission limits weaken the permitting program and do not guarantee that the NAAQS will be attained 

and maintained. These regulations and possibly others not listed in these comments allow for exceptions 

that frustrate the purpose of the I-SIP and prevent California from ensuring attainment and maintenance

of the NAAQS. 

CalEPA specifically fails to demonstrate that 2008 ozone NAAQS will be attained and 

maintained, because CalEPA references rules that provide little benefit to areas not designated 

nonattainment for 2008 ozone NAAQS. For example, CalEPA cites to a regulation meant to reduce

ozone levels that is only applicable to areas designated nonattainment for ozone NAAQS. See I-SIP 

Submission at 7. The Portland Cement Kilns Rule 1161 from Mojave Desert Air Quality Management

District (“AQMD”), id., addresses nitrogen oxides, an ozone precursor, in ozone nonattainment areas, 

but it has little benefit to the ozone attainment areas the I-SIP is meant to protect. Further, even this 

regulation has an exception for start-up and shut down. See Mojave Desert AQMD, Rule 1161: Portland 

 
Enclosure 4-9 

Cement Kilns. California must make an adequate showing that areas not designated nonattainment will

attain and maintain the NAAQS. 

In addition to these regulations that allow for exceptions, California’s SIP contains emission limits 

that provide little assurance that the 2010 SO2 standard will be met. For instance, in the Bay Area

AQMD, where the three largest stationary sources of SO2 are located, see 2011 NEI CA SO2 17 Jan 

2014, (based on 2011 National Emissions Inventory), attached hereto as Exhibit 4, see also The National

Emissions Inventory, http://www.epa.gov/ttn/chief/net/2011inventory.html,7 the sulfur dioxide emission 

limit is 0.5 ppm continuously for three consecutive minutes, 0.25 averaged over an hour, or 0.05 ppm 

averaged over twenty-four hours. These limits are not sufficient to meet the 0.075 ppm one-hour SO2

standard. Bay Area AQMD, Regulation Inorganic Gaseous Pollutants: Sulfur Dioxide § 9-1-301. 

Additionally, in Butte County, a single source’s emission limit for sulfur dioxide is set at 2000 ppm or 

0.2 percent by volume. Again, the 2010 SO2 standard is set at 0.075 ppm. See Butte County APCD 

Rule 231: Sulfur Oxides Emission Standards. A similar standard is found in Calaveras County APCD, 

Rule 210: Sulfur Emissions, which limits a single source’s emissions to 0.2 percent by volume. See also 

El Dorado County APCD – El Dorado County, Rule 210: Sulfur Emissions (also limits emissions by 0.2 

percent volume). These limits do show that the SO2 NAAQS will be met. 

All of these regulations contain the same fatal flaw: not ensuring that the standards actually are

met by addressing large sources. California must revise its SIP to include enforceable emission limits 

that address any exceedances of the NAAQS. 

III. CALIFORNIA’S INFRASTRUCTRE SIP IMPERMISSIBLY ALLOWS 

EXEEDANCES OF THE 2008 EIGHT-HOUR OZONE STANDARD, AS 

DEMONSTRATED BY EPA’S OWN OZONE MONITOR DATA.

California’s proposed SIP fails to impose necessary restrictions on ozone precursor 

sources sufficient to ensure the attainment and maintenance of the 2008 ozone NAAQS in areas 

designated attainment, as shown by the EPA’s own ozone data. Ozone monitor data in Kern, 

Riverside, San Bernardino, San Luis Obsipo, and Tehema counties may show 2008 ozone 

NAAQS exceedances in areas designated attainment.8

These monitors reveal that ozone concentrations in these areas exceed the 2008 ozone

NAAQS, and thus ozone concentrations have been found to be above the level deemed safe for 

public health. See California 2010-13 Monitor Values (based on EPA AirData), attached hereto as 

Exhibit 5; see also EPA AirData: Monitor Values Report, 

http://www.epa.gov/airdata/ad_rep_mon.html. If areas where these monitors are located are not

designated nonattainment, then these exceedances show that the California Infrastructure SIP 

7 The Valero Refining Company in Solano county and Shell Martinez Refinery and Phillips 66 

Carbon Plant in Contra Costa are located in the Bay Area AQMD. 

8 Sierra Club recognizes that all of these counties are listed as partially nonattainment. However, 

Sierra Club could not determine from addresses of monitors, maps of nonattainment areas, and 

descriptions of nonattainment boundaries whether the monitors were in areas already designated 

nonattainment or areas designated attainment or unclassifiable. Sierra Club asks that CalEPA to 

please clarify whether the monitors are in areas designated nonattainment or attainment or 

unclassifiable. 
Enclosure 4-10 

lacks adequate emission limits to attain and maintain the 2008 ozone NAAQS. California must

clarify the location of these monitors and address ozone levels when any monitor shows ozone

exceedances in areas not designated nonattainment in its Infrastructure SIP. 

The 2008 eight-hour ozone monitor values are listed below for the violating counties 

from 2010 to 2012. 

 
Enclosure 4-11 

Table 1: Fourth Highest Monitor Values of Counties with Three-Year 

Averages from 2010 to 2012 over 0.075 ppm9

County (Monitor) 2010 2011 2012 Average

Kern

(#60290007)

0.099 0.092 0.088 0.093

Riverside

(#60650008)

0.078 0.076 0.075 0.076

Riverside

(# 60650012)

0.099 0.1 0.095 0.098

Riverside

(#60651004)

0.076 0.075 0.078 0.076

Riverside

(#60651010)

0.076 0.076 0.08 0.77

Riverside

(#60652002)

0.084 0.085 0.085 0.084

Riverside

(#60655001)

0.092 0.092 0.094 0.092

Riverside

(#60658001)

0.092 0.106 0.096 0.098

San Bernardino

(#60711001)

0.077 0.078 0.08 0.078

San Luis Obsipo

(#60798005)

0.083 0.075 0.081 0.079

San Luis Obsipo

(#60798006)

0.077 0.077 0.75 0.076

Tehama

(#61030004)

0.076 0.075 0.077 0.076

See Exhibit 5.

9 Using data from 2011 to 2013, the monitors, listed above, also show exceedances: Kern 

(#60290007), Riverside (#60650008), Riverside (# 60650012), Riverside (#60651010), Riverside 

(#60652002), Riverside (#60655001), Riverside (#60658001), and San Luis Obsipo 

(#60798005). See Exhibit 5.

 
Enclosure 4-12 

IV. THE CALIFORNIA INFRASTRUCTURE SIP IMPERMISSIBLY FAILS 

TO INCLUDE ENFORCEABLE ONE-HOUR SO2 EMISSION 

LIMITATIONS TO ENSURE ATTAINMENT AND MAINTENANCE OF

THE NAAQS.

Even though the 2010 SO2 NAAQS requirements impose a new, more protective

standard for ambient air, California’s proposed I-SIP fails to include restrictions on major SO2

sources to ensure that areas not designated nonattainment will attain and maintain the new onehour SO2 NAAQS. California fails to include adequate enforceable emission limitations for 

sources of SO2 sufficient to ensure attainment and maintenance of the 2010 SO2 NAAQS.10 For 

example, there are several large sources of SO2 in California: Valero Refining Company in 

Benicia, Shell Martinez Refinery in Martinez, and Phillips 66 Carbon Plant in Rodeo. See

Exhibit 4. These three sources combined emit more SO2 than the next thirteen SO2

emission sources combined in California. Id. Yet, nothing in the I-SIP sets short-term

emission limits for these or for other large sources of SO2. Emission limits are especially 

important for meeting the one-hour SO2 NAAQS, given the “strong source-oriented nature of 

SO2 ambient impacts.” Final SO2 NAAQS Rule, 75 Fed. Reg. at 35,570. In order to comply 

with section 110(a)(2)(A), the California proposed I-SIP must be amended to ensure these

sources cannot cause exceedances of the 2010 SO2 NAAQS. CalEPA must promulgate

enforceable emission limits with one-hour averaging time into its I-SIP to achieve and maintain 

the one-hour SO2 NAAQS. These emission limits must apply at all times including during 

periods of start-up, shutdown, and malfunction. 

A. California must include enforceable SO2 emission limits with a one-hour

averaging period that apply at all times

As discussed, the emission limitations necessary to comply with section 110(a)(2)(A) 

mean “a requirement established by the State or the Administrator which limits the quantity, rate, 

or concentration of emissions of air pollutants on a continuous basis, including any requirement

relating to the operation or maintenance of a source to assure continuous emission reduction, and 

any design, equipment, work practice or operational standard promulgated under this chapter.” 

42 U.S.C. at § 7602(k). Therefore, the emission limitations must also contain proper averaging 

times—in this instance, a one-hour averaging period. 

EPA has stated that one-hour averaging times are necessary to comply with the one-hour 

SO2 NAAQS. In 2011, EPA disagreed with the Kansas Department of Health and 

Environment’s issuance of a PSD permit that contained a 30-day averaging time rather than a

one-hour averaging period. See Letter from Karl Brooks, Regional Administrator, EPA Region 7 

10 As outlined by EPA in the Final SO2 NAAQS Rule, 75 Fed. Reg. at 35,551, air dispersion 

modeling is the best method for evaluating the short-term impacts of large SO2 sources. EPA 

has acknowledged that, for the one-hour SO2 NAAQS, modeling is the most accurate means of 

determining attainment with the NAAQS. Final SO2 NAAQS Rule at 35,551, 35,570. 

Accordingly, California must include source-specific SO2 emission limits in the SIP that, when 

modeled, show no exceedances of the NAAQS. 
Enclosure 4-13 

to Dr. Robert Moser, Secretary, Kansas Department of Health and Environment (Feb. 3, 2011), 

attached hereto as Exhibit 6. EPA explained 

[i]t is well known that there can be considerable variability in actual 1-hour 

emission rates. Therefore, to ensure protection of the 1-hour . . . SO2 NAAQS . . . 

the permit needs to contain . . . SO2 1-hour average emission limits for both new 

and existing steam generating units. To ensure the source does not cause or 

contribute to air pollution in violation of the NAAQS, the emission limits should 

be consistent with the modeling rates and have the same averaging period, i.e. in 

this case maximum hourly emission limits consistent with the 1-hour NAAQS. 

Id. at 2. Although this determination was made in the PSD permitting context, there is no 

functional difference between this review process by EPA and the I-SIP approval, as PSD 

permits reflect the provisions of a state’s SIP including federal standards and requirements. 

Similarly, in its disapproval of Missouri’s SIP in 2006, EPA determined that the emission rates 

in the SIP were “not protective of the short-term sulfur dioxide NAAQS” because they were

based on an annual average. See Approval and Promulgation of Implementation Plans; State of 

Missouri, 71 Fed. Reg. 12,623, 12,624 (Mar. 13, 2006). 

In addition, the I-SIP must require monitoring of these SO2 emission limits on a

continuous basis using a continuous emission monitor system or systems. Monitoring performed 

pursuant to the New Source Performance Standard (“NSPS”) requirements in 40 C.F.R. Part 60 

is not adequate because the NSPS requirements do not call for monitoring during every hour of 

operation. In order to ensure the emission limits protect the one-hour SO2 NAAQS, the emission 

limits must be monitored during every hour of operation. 

The I-SIP is meant to implement, maintain, and enforce the NAAQS and therefore must

include “enforceable emission limitations” to ensure its effectiveness. 42 U.S.C. § 

7410(a)(2)(A). EPA has stated that only one-hour averaging periods can ensure compliance with 

the one-hour SO2 NAAQS. Therefore, California must include emission limitations for the all

major SO2 sources that reflect the new one-hour SO2 NAAQS limitation and the proper 

averaging period. 

V. THE CALIFORNIA INFRASTRUCTURE SIP IMPERMISSIBLY FAILS 

TO ADDRESS SOURCES SIGNIFICANTLY CONTRIBUTING TO

NONATTAINMENT OR INTERFERENCE WITH MAINTENANCE OF

THE NAAQS IN DOWNWIND STATES.

California must address interstate transport of California’s emissions that would 

contribute to exceedances or interfere with the maintenance of the NAAQS. Under section 

110(a)(2)(D), a SIP must contain “adequate provisions (i) prohibiting . . . any source . . . from

emitting any air pollutant in amounts which will—(I) contribute significantly to nonattainment

in, or interfere with maintenance by, any other State with respect to any such national primary or 

secondary ambient air quality standard . . . .” 42 U.S.C. § 7410(a)(2)(D)(i)(I). California’s 

Infrastructure SIP, as proposed, fails to address any cross-state impacts that are due to sources 

 
Enclosure 4-14 

within the state. See I-SIP Submission at 17-18. This is inadequate and should result in EPA 

disapproving the submittal. 

The Clean Air Act sets a mandatory duty for states to submit I-SIPs within three years of 

promulgation of a NAAQS. 42 U.S.C. § 7410(a)(1). Under CAA section 110, there is no 

prerequisite action required, such as EPA issuing guidance, before states must fulfill their 

mandatory duty. Compare with Oklahoma v. EPA, 723 F.3d 1201, 1205 (recognizing that 

certain provisions of the CAA require EPA to create guidance) (citing 42 U.S.C. § 7491(b)(1)). 

Therefore, California must create a SIP to address Prongs 1 and 2 of the Interstate provisions and 

provide the public with an opportunity to comment on it. 

CalEPA cannot use Homer City as an excuse to ignore its obligations under Clean Air 

Act section 110(a)(2)(D)(i)(I). Although in dicta Homer City suggests that EPA must quantify 

upwind states’ emission reduction obligations in order for states to submit SIPs addressing those

obligations, this interpretation conflicts with the plain language of CAA section 110(a)(1), which 

indisputably requires states to submit Infrastructure SIPs within three years of promulgation or 

revision of any primary or secondary NAAQS. CAA section 110(a)(2)(D)(i)(I) requires these

Infrastructure SIPs contain adequate provisions prohibiting sources in upwind states from

contributing significantly to nonattainment or interfering with maintenance of the NAAQS in any 

downwind state.11 Moreover, EPA’s action on California’s SIP is reviewable in the U.S. Court 

of Appeals for the Ninth Circuit, not the D.C. Circuit. Thus, Homer City provides no protection 

for CalEPA’s failure to address section 110(a)(2)(D)(i)(I). CalEPA must provide provisions in 

its I-SIP to ensure that pollution from California is not preventing other states from attaining or 

maintaining the one-hour SO2 NAAQS. 

VI. THE CALIFORNIA INFRASTRUCTURE SIP IMPERMISSIBLY RELIES 

ON FEDERAL IMPLEMENTATION PLANS TO ADDRESS ITS 

OBLIGATIONS UNDER CLEAN AIR ACT SECTION 110(a)(2).

California cannot rely on Federal Implementation Plans (“FIPs”) to meet its obligations 

under the CAA section 110(a)(2). California explains that each of its thirty-five air districts is 

responsible for their own stationary source permitting program. I-SIP Submission at 13. 

However, in actuality, only ten have fully approved prevention of significant deterioration 

(“PSD”) programs. Id. Thus, thirteen air districts are relying in part or wholly on FIPs issued by 

the EPA. Id.

12 EPA has said that states cannot rely on FIPs to satisfy any part of the

requirements of CAA section 110(a). See EPA I-SIP Guidance at 12-13 (stating that when a FIP 

addresses a gap in a SIP, “the EPA cannot give ‘credit’ for the FIP when determining whether an 

air agency has met any later obligations under these sections”). As EPA detailed in its guidance, 

a FIP is not a SIP and cannot be relied upon by a state to satisfy later requirements, such as those 

11 Indeed, the Homer City majority opinion acknowledges that it was not overturning EPA’s 

prior finding of a failure on the part of the states to submit SIPs addressing interstate impacts, nor 

did it take issue with the concordant commencement of the two-year FIP clock. Homer City, 696 

F.3d at 37, n.34. 

12 CalEPA states that several of these districts with FIPs are “in the process of obtaining PSD 

authority.” I-SIP Submission at 13. However, this is incosequential and does not help ensure the 

requirements of section 110(a)(2) are met until these districts have approved programs. 
Enclosure 4-15 

imposed in subsequent NAAQS. Thus, California must provide other alternatives for how these

thirteen air districts are implementing their PSD programs and maintaining and attaining the

NAAQS. 

VII. CONCLUSION

The proposed Infrastructure SIP fails to ensure that the 2008 eight-hour ozone and 2010 

one-hour sulfur dioxide NAAQS are attained and maintained, as described above. CalEPA must

adopt new provisions into the SIP to protect the public health and comply with the Act’s 

requirements. The Sierra Club would be happy to provide any other information that might assist 

CalEPA in evaluating the impacts of these sources and developing an Infrastructure SIP in 

full compliance with the Act. 

Respectfully submitted, 

/s/Elizabeth Toba Pearlman 

Elizabeth Toba Pearlman 

Office of Elizabeth Toba Pearlman 

1523 27th Street, NW

Washington, DC 

20007 

(202) 643-4068 

etplaw@gmail.com 

On behalf of Sierra Club