P Providing Legal & Technical Assistance to the Grassroots Movement for Environmental Justice P

Center on Race, Poverty, & the Environment

47 Kearny Street, Suite 804

San Francisco, CA 94108

415/346-4179 • fax 415/346-8723

bnewell@crpe-ej.org

Ralph Santiago Abascal (1934-1997)

Director 1990-1997

Luke W. Cole (1962-2009)

Executive Director 1997-2009

Caroline Farrell

Acting Executive Director

Lupe Martinez

Director of Organizing

Gustavo Aguirre

Assistant Director of Organizing

Daniela Simunovic

Irma Medellin

Refugio Gutierrez

Community Organizers

Don Spradlin

Director of Development

Lauren Richter

Development Assistant

Valerie Gorospe

Administrative Assistant

Brent Newell

Legal Director

Ingrid Brostrom • Alegría De La Cruz 

Jennifer Giddings • Marybelle Nzegwu

Sofia Sarabia

Staff Attorneys

Johannes Epke

Legal Intern

August 31, 2009

By electronic mail

Frances Wicher

Office of Air Planning (AIR-2)

U.S. Environmental Protection Agency, Region IX

75 Hawthorne Street

San Francisco, CA 94105-3901

wicher.frances@epa.gov

Andrew Steckel

Office of Air Planning (AIR-4)

U.S. Environmental Protection Agency, Region IX

75 Hawthorne Street

San Francisco, CA 94105-3901

steckel.andrew@epa.gov

Re: Comments on Revisions to the California State Implementation Plan, San

Joaquin Valley Air Pollution Control District (Docket No.

EPA–R09–OAR–2009–0492); Comments on Approval and Promulgation of

Implementation Plans: 1-Hour Ozone Extreme Area Plan for San Joaquin

Valley, CA (Docket No. EPA–R09–OAR–2008–0693).

Dear Ms. Wicher and Mr. Steckel:

The Center on Race, Poverty & the Environment submits these comments on behalf of the

Association of Irritated Residents, Clean Water and Air Matter, Comité West Goshen, Comité

Unido de Plainview, Committee for a Better Arvin, Natural Resources Defense Council, La

Nueva Esperanza de Alpaugh, El Quinto Sol de America, South Shafter Project Committee,
Ms. Frances Wicher and Mr. Andrew Steckel

Comments on Proposed Action on Rule 4570, the 2004 SIP, the 2008 SIP Clarification, and the

2003 State Strategy

August 31, 2009

 Renee Sharp and Bill Walker, PARTICLE CIVICS: HOW CLEANER AIR IN CALIFORNIA WILL 1

SAVE LIVES AND SAVE MONEY, Environmental Working Group at 19, attached as Exh. 1.

Page 2 of 11

Shafter Chapter League of United Latin American Citizens, United for a Change in Tooleville, La

Voz de Tonyville(collectively “AIR”). 

I. INTRODUCTION.

A. Factual Background. 

In part because of exemptions for agricultural and oil production sources, and inadequate

regulations, the San Joaquin Valley failed to attain the 1-hour ozone standard by November 15,

1999. 73 Fed. Reg. 61381 (Oct. 16, 2008). As a result of that failure, the Act reclassified the

Valley to a severe nonattainment area by operation of law. Id. EPA subsequently found that

California failed to submit required components of a severe area plan. 67 Fed. Reg. 61784 (Oct.

2, 2002). On April 16, 2004, EPA granted California’s request to reclassify the Valley to an

extreme nonattainment area and required the Valley to submit an extreme attainment plan by

November 15, 2004 and New Source Review program amendments by May 15, 2005. 69 Fed.

Reg. 20550 (April 16, 2004).

EPA rescinded the 1-hour ozone standard effective one year from the effective date of the

8-hour National Ambient Air Quality Standard (“standard” or “standards”) designation. 69 Fed.

Reg. 23951, 23969 (April 30, 2004); 69 Fed. Reg. 23858 (April 30, 2004). Even though EPA has

rescinded the 1-hour ozone standard, the discretionary and mandatory requirements applicable 1-

hour ozone nonattainment areas remain in effect. See 69 Fed. Reg. 23951, 23972-23974 (April

30, 2004); see also South Coast Air Quality Management District v. U.S. E.P.A., 472 F.3d 882

(D.C. Cir. 2006).

NOx and VOC are ozone (commonly known as “smog”) precursors and fine particle

(PM2.5) precursors. Both ozone and PM2.5 levels in the San Joaquin Valley constitute a public

health crisis. The Environmental Working Group published the Air Resources Board’s estimates

that show 1,292 San Joaquin Valley residents die each year from long-term exposure to PM2.5.1

Ozone and PM pollution exacerbate respiratory conditions, including asthma, increase

hospitalizations and emergency room visits, contribute to cardiac illnesses, and increase school
Ms. Frances Wicher and Mr. Andrew Steckel

Comments on Proposed Action on Rule 4570, the 2004 SIP, the 2008 SIP Clarification, and the

2003 State Strategy

August 31, 2009

 American Lung Association, STATE OF THE AIR: 2009, attached as Exh. 2. 2

 Id. at 21. 3

 Id. at 20. 4

 The California Air Resources Board and the American Lung Association of California,

5

RECENT RESEARCH FINDINGS: HEALTH EFFECTS OF PARTICULATE MATTER AND OZONE AIR

POLLUTION, January 2004 at 2. 

Page 3 of 11

and work absenteeism. The American Lung Association ranks the San Joaquin Valley counties 2

of Kern, Tulare, and Fresno as the third, fourth, and sixth most ozone-polluted counties in the

United States, respectively. For long term exposure to PM2.5, the American Lung Association 3

ranks the San Joaquin Valley counties of Kern, Tulare, Kings, and Fresno as the first, fourth,

seventh, and eighth most polluted counties.4

A document prepared jointly by the California Air Resources Board and the American

Lung Association describes ozone as

a powerful oxidant that can damage the respiratory tract, causing inflammation

and irritation, and induces symptoms such as coughing, chest tightness, shortness

of breath, and worsening of asthma symptoms. Ozone in sufficient doses

increases the permeability of lung cells, rendering them more susceptible to toxins

and microorganisms. The greatest risk is to those who are more active outdoors

during smoggy periods, such as children, athletes, and outdoor workers. Exposure

to levels of ozone above the current ambient air quality standard leads to lung

inflammation and lung tissue damage, and a reduction in the amount of air inhaled

into the lungs. Recent evidence has, for the first time, linked the onset of asthma

to exposure of elevated ozone levels in exercising children (McConnell 2002). 

These levels of ozone also reduce crop and timber yields, damage native plants,

and damage materials such as rubber, paints, fabric, and plastics.5

The document also shows the significant health effects and costs of exposure to fine particulate

matter and ozone in California. 

In late 2008, Jane V. Hall, Ph.D., and Victor Brajer, Ph.D., published a comprehensive

analysis of the effects from not meeting the 1997 8-hour ozone standard and the 2008 PM 2.5. 
Ms. Frances Wicher and Mr. Andrew Steckel

Comments on Proposed Action on Rule 4570, the 2004 SIP, the 2008 SIP Clarification, and the

2003 State Strategy

August 31, 2009

 See Jane Hall and Victor Brajer, THE BENEFITS OF MEETING FEDERAL CLEAN AIR 6

STANDARDS IN THE SOUTH COAST AND SAN JOAQUIN VALLEY AIR BASINS, November 2008,

attached as Exh. 3. 

 See Select 8 Summaries, attached as Exh. 4. 7

Page 4 of 11

The health effects of not meeting these standards, and their concomitant economic values, inflict a

conservative measurable cost of $5.7 billion each year –$1,600 per person – in the San Joaquin

Valley. While these data are not directly related to the failure to meet the 1-hour ozone standard, 6

attaining the 1-hour standard reflects progress towards attaining the 8-hour standard and the 2008

PM2.5 standard (NOx and VOC are also PM2.5 precursors). Thus, a meaningful plan to attain the

1-hour standard by the 2010 deadline also means progress towards solving the health and

economic consequences of the air quality crisis in the San Joaquin Valley. 

Between 2006 and 2008, the San Joaquin Valley violated the 1-hour ozone standard on an

average of 13 days each year and has violated the 1997 8-hour ozone standard an average of 77

days each year.

7

B. Statutory Background.

“The Clean Air Act sets forth a cooperative state-federal scheme for improving the

nation’s air quality.” Vigil v. Leavitt, 366 F.3d 1025, 1029 (9th Cir. 2004). Congress enacted the

1970 Clean Air Act (“the Act”), as amended in 1977 and 1990, “to protect and enhance the quality

of the Nation’s air resources so as to promote the public health and welfare and the productive

capacity of its population.” 42 U.S.C. § 7401(b)(1). The Act relies on a scheme of cooperative

federalism, whereby the states develop and submit plans and regulations to attain the health-based

standards. EPA’s role is to ensure that such plans and regulations conform to the minimum

requirements of the Act. 

Former California Health & Safety Code § 42310(e) exempted “any equipment used in

agricultural operations in the growing of crops or the raising of fowl or animals” from the

obligation to obtain a permit. Cal. Health & Safety Code § 42310(e) (2003). After being sued by

California air quality advocates in 2002 over EPA’s illegal approval of California’s Title V permit

programs, EPA settled the litigation and found that the agricultural equipment exemption in

section 42310(e) conflicted with the Act’s Title V operating permit requirements. See Association

of Irritated Residents v. EPA, Consolidated Case Nos. 02-70160, 02-70177, 02-70191; 67 Fed.

Reg. 35990 (May 22, 2002) (“Notice of Deficiency”). 
Ms. Frances Wicher and Mr. Andrew Steckel

Comments on Proposed Action on Rule 4570, the 2004 SIP, the 2008 SIP Clarification, and the

2003 State Strategy

August 31, 2009

 Rule 4570 Final Draft Staff Report, June 15, 2006 at Table 5, attached as Exhibit 5. 8

 Id. at Table 8. 9

 See EPA, Dairy Locations and Herd Size, Central Valley California, CED0601309.1, August

10

10, 2007; EPA, Dairy Cow Concentration, San Joaquin Valley California, CED0601309.2,

August 10, 2007. These maps and the underlying data are incorporated by reference because the

physical size of the maps and the volume of underlying data make it impracticable to submit as

Exhibits. 

 Rule 4570 Final Draft Staff Report, June 15, 2006 at Table 12. 11

Page 5 of 11

On May 22, 2002, EPA promulgated the Notice of Deficiency that found California’s Title

V permit programs were illegal because of the agricultural exemption in California Health &

Safety Code § 42310(e). 67 Fed. Reg. 35990 (May 22, 2002). The Notice of Deficiency

threatened California with a loss of highway funding if the State did not eliminate the agricultural

exemption. Id. at 35991; 42 U.S.C. §§ 7509(a), (b). 

As a result of EPA’s threat to withhold highway funding, the California Legislature

enacted a comprehensive reform scheme in the fall of 2003. Commonly referred to as Senate Bill

700, the legislation amended and added several sections to the Health & Safety Code to correct

this lack of regulation. The section relevant here, Section 6 of SB 700, calls for comprehensive

emissions controls from existing Large Confined Animal Facilities (“LCAFs”) See generally

Health & Safety Code § 40724.6. The Air District included the rule required by SB 700 in its

2004 Ozone Attainment Demonstration Plan as a SIP commitment. 

For 2005, the District estimates that a 74.5 tons per day of VOC, a significant percentage

of the total air basin volatile organic compound emissions, comes from confined animal facilities.8

Of that total, the District estimates that 51.2 tons per day of VOC are related to dairy operations.

9

EPA has developed impressive maps showing the location, size, and area density of San Joaquin

Valley Dairies. According to the District, there are 430 dairies that have more than 1,000 milk

10

cows.11

The District’s 2007 Ozone Plan documents a total 2005 VOC inventory in the air basin of
Ms. Frances Wicher and Mr. Andrew Steckel

Comments on Proposed Action on Rule 4570, the 2004 SIP, the 2008 SIP Clarification, and the

2003 State Strategy

August 31, 2009

 Appendix B, 2007 Ozone Plan at Tables B-1 and B-3, attached as Exhibit 6. The 2007 12

Ozone Plan is an extremely large document. For the purposes of this comment letter, AIR will

include specific chapters or appendices as exhibits, but incorporates the entire plan by reference

for purposes of any administrative record on judicial review. The 2007 Ozone Plan is available

at www.valleyair.org/Air_Quality_Plans/AQ_Final_Adopted_Ozone2007.htm. 

 Appendix I, 2007 Ozone Plan at I-7, attached as Exhibit 7. 13

 Appendix B, 2007 Ozone Plan at Tables B-1 and B-3. 14

 See District, Air Pollution Control Officer’s Determination of VOC Emission Factors for 15

Dairies, August 1, 2005, attached as Exhibit 8; Rule 4570 Final Draft Staff Report, June 15, 2006

at Table 4.

 Mitloehner, et al., VOLATILE FATTY ACIDS, AMINE, PHENOL, AND ALCOHOL EMISSIONS 16

FROM DAIRY COWS AND FRESH WASTE, May 31, 2005, attached as Exhibit 9.

 Schmidt, et al., Dairy Air Emissions: Summary of Dairy Emission Estimation Procedures, 17

May 2006, attached as Exhibit 10. Ironically, the flux chamber methodology that Dr. Schmidt

uses underestimates emissions because it does not simulate the effect of windspeed on flux,

among other factors, thus artificially suppressing emissions estimates. See, e.g., Hudson and

Ayoko, ODOR SAMPLING 1: PHYSICAL CHEMISTRY CONSIDERATIONS, Bioresource Technology

xxx (2007) xxx-xxx (prepublication version), attached as Exhibit 11; Hudson and Ayoko, ODOR

SAMPLING 2, COMPARISON OF PHYSICAL AND AERODYNAMIC CHARACTERISTICS OF SAMPLING

Page 6 of 11

458.8 tons per day. Existing dairies therefore represent 11.1% of all 2005 VOC emissions. 12

Looking into the future, the District projects an unmitigated increase in confined animal facilities’

VOC emissions from 65.4 tons per day of VOC in 2005 to 90.4 tons per day in 2023. The 13

District estimates that in 2023, the total VOC emissions in the air basin will be 414.6 tons per

day. 

14

To estimate VOC emissions, the District relies on its August 1, 2005 estimate of dairyrelated VOC emissions, which the District repeatedly describes as a conservative VOC emissions

estimate. One example of why the District’s August 1, 2005 VOC “emission factor” is low is 15

the recent research of Dr. Frank Mitloehner (funded by ARB and EPA), in which Dr. Mitloehner

disclosed significant amounts of VOC emissions from cows’ enteric emissions and fresh manure,

emissions that including the VOCs ethanol and methanol. Another example of why the 16

District’s emission factor is low is the recent research of Dr. Charles Schmidt (funded by ARB).

17
Ms. Frances Wicher and Mr. Andrew Steckel

Comments on Proposed Action on Rule 4570, the 2004 SIP, the 2008 SIP Clarification, and the

2003 State Strategy

August 31, 2009

DEVICES: A REVIEW, Bioresource Technology xxx (2007) xxx-xxx (prepublication version),

attached as Exhibit 12.

 See note 9, supra. 

18

Page 7 of 11

Including the District’s estimated reductions as a result of Rule 4570, the growth in the

dairy industry eclipses the District’s claimed reductions: the inventory dips from 65 tons per day

in 2005 to 53 tons per day in 2011 and then steadily increases to 67 tons per day in 2023. By 18

2023, total confined animal facility emissions of 90.4 tons per day of VOC, including claimed

reductions from Rule 4570, will therefore represent 16.2% of the total air basin VOC emissions.

II. EPA SHOULD DISAPPROVE THE RACT DETERMINATION FOR DAIRY AND

CATTLE OPERATIONS.

We agree with EPA’s proposed finding that the District has failed to demonstrate RACT

for hog and poultry operations. EPA, however, should not defer a decision on RACT inadequacy

for dairy and cattle operations because of the Air Compliance Agreement’s air monitoring study. 

There is no “hard” deadline in that agreement by which EPA must promulgate the Emission

Estimating Methodologies referenced in the proposed rule, because the EPA science advisory

panel may extend the date for EPA’s publication. See 70 Fed. Reg. 4958, 4964 ¶32 (Jan. 31,

2005). EPA may therefore further delay a RACT determination until after November 2011. In

any case, as demonstrated herein, sufficient information already exists to show that cattle and

dairy operations are significant sources of VOC emissions.

III. THE MENU-BASED CONTROL STRATEGY IS NOT RACT.

The Rule’s control strategy allows an LCAF to select one or more measures from each of

several process-based categories to include in the emission mitigation plan. This scheme allows

for LCAFs to choose measures that do not achieve the greatest reduction among a given

category’s potential controls. For example, the category “Cattle housing or corral practices”

requires 6 out of 11 potential controls. See Final Draft Staff Report at Table 2, Section E. For

liquid manure, an operator must only choose 1 out of 6 options. See Id. at Table 2, Section G. 

In none of the eight categories does the Rule require an owner or operator of a dairy

facility to implement more than 50% of the listed practices. Nor does the rule require owners or

operators to select the most effective measures.
Ms. Frances Wicher and Mr. Andrew Steckel

Comments on Proposed Action on Rule 4570, the 2004 SIP, the 2008 SIP Clarification, and the

2003 State Strategy

August 31, 2009

Page 8 of 11

The District concedes that operators will select the least-costly options, which will not

necessarily be the most effective. Given the opportunity to develop “cafeteria-style” mitigation

plans under the proposed Rule, owners and operators will likely adopt those measures that are

easiest and cheapest to implement. See Final Draft Staff Report, Appendix B at B-4. 

EPA has interpreted RACT as “the lowest emission limitation that a particular source is

capable of meeting by the application of technology that is reasonably available considering

technological and economic feasibility.” 57 Fed. Reg. at 13541. The regulations implementing

the Clean Air Act define RACT as “devices, systems, process modifications, or other apparatus or

techniques that are reasonably available taking into account the necessity of imposing such

controls in order to attain and maintain a national ambient air quality standard, the social,

environmental, and economic impact of such controls, and alternative means of providing for

attainment and maintenance of such standard.” 40 C.F.R. § 51.100(o).

The proposed Rule is inconsistent with the plain language of the Clean Air Act. The Rule

as proposed does not require that operators comply with all RACT. Rather, the Rule merely

requires operators to select a handful of measures from several dozen. Moreover, because the

Rule consists of mostly existing practices, the Rule turns on which measures are convenient and

serve the economic interests of dairy operators not, as RACT requires, on which measures reduce

ozone forming pollution. The Rule does not meet the RACT standard because the Rule allows

LCAFs to adopt emission mitigation plans that use the least stringent options. 

IV. THE RULE IMPROPERLY TAKES CREDIT FOR VOC REDUCTIONS FROM

AN EMISSION BASELINE THAT INCLUDES CONTROLS.

The rule claims a 10% reduction in VOC emissions from facility-wide Dairy, Beef

Feedlot, and Other Cattle facility emissions as a result of compliance with menu option A.1 (feed

according to National Research Council Guidelines). See Staff Report Appendix B at B-7, B-13,

B-17. The Rule should not take any credit for this practice, as it is already reflected in the

emission factor baseline. Allowing credit for the practice and allowing operators to select option

A.1 as a required control is thus arbitrary and capricious and an abuse of discretion. 

The dairy cows studied by Dr. Frank Mitloehner at the University of California, Davis and

the cows at the dairies studied by Dr. Chuck Schmidt were fed rations that met NRC guidelines,
Ms. Frances Wicher and Mr. Andrew Steckel

Comments on Proposed Action on Rule 4570, the 2004 SIP, the 2008 SIP Clarification, and the

2003 State Strategy

August 31, 2009

 See electronic mail from Dr. Frank Mitloehner, dated June 9, 2006 and electronic mail from 19

Patrick Gaffney, Air Resources Board, dated June 9, 2006, attached as Exhibit 13.

 Memorandum from Bill Powers to Brent Newell, dated June 12, 2006 (“Powers Memo”) at 20

6, attached as Exh. 14.

Page 9 of 11

which menu option A.1 requires. As a result, the emission factor derived from their research

19

already includes a reduction – if any – from cows fed a ration that meets NRC guidelines. The

problem with the Rule also affects the claimed reductions for beef cattle feedlots and other cattle

operations since District staff extrapolated from the dairy cow emissions data to estimate

emissions from Beef Feedlot and Other Cattle LCAFs. See Staff Report Appendix B at B-12, B17. 

The District improperly claims a 10% reduction of facility-wide VOC emissions because

cows fed according to NRC Guidelines are already reflected in the baseline emission factor. 

Therefore, the reduction amounts to double counting and artificially inflates the control

effectiveness of the rule.

Since the District cannot take credit for the reductions from using feed that meets the NRC

guidelines, the total reductions from Dairy and Beef Feedlot LCAFs should drop from 36% to

26%. See Staff Report Appendix B at Table 3. Reductions from Other Cattle LCAFs should drop

from 42% to 32% Total claimed VOC reductions from the Rule would drop from 7,563 tons per

year (21 tons per day) to 5,632 tons per year (15.5 tons per day). Id. EPA approval of emission

reductions from feed manipulation would be arbitrary and capricious because there is no evidence

suggesting that such reductions in fact occur.

V. THE DISTRICT HAS FAILED TO DEMONSTRATE THAT THE EMISSION

REDUCTIONS FROM RULE 4570 ARE REAL AND QUANTIFIABLE.

Rule 4570 codifies existing practices and, therefore, will not generate emission

reductions. The District admits that many of the control measures are currently being 20

implemented. See Final Draft Staff Report, Appendix B at B-4. The District defends its scheme

as an anti-backsliding measure that will ensure that current voluntary practices are not abandoned. 

Id. The approach that the District has taken violates the statutory requirement that the Rule must

reduce emissions. The proposed Rule will result in maintenance of current emissions levels, not

reductions.
Ms. Frances Wicher and Mr. Andrew Steckel

Comments on Proposed Action on Rule 4570, the 2004 SIP, the 2008 SIP Clarification, and the

2003 State Strategy

August 31, 2009

 Powers Memo at 1. 21

 Id. at 2-4. 22

Page 10 of 11

As demonstrated by the attached Powers Memo, the District guesses or applies a default

emission reduction estimate to come up with what appears to be an impressive 36% reduction of

smog-forming VOC emissions from dairy operations. Of that 36%, 11.2% is the result of a

default emission reduction and 24% comes from guesses. Approval of the Rule with fictitious 21

reductions based on commonly-used industry practices would be arbitrary and capricious: the vast

majority of controls have no factual support whatsoever. 

22

VI. CONCLUSION.

For the reasons set forth above, EPA should disapprove the RACT demonstration for dairy

and cattle operations and not allow the District’s 2004 SIP to take credit for the VOC reductions

from Rule 4570. Thank you for your time, consideration, and effort. 

Sincerely,

Brent Newell, Legal Director Sal Partida, Co-Chair

Center on Race, Poverty & the Environment Committee for a Better Arvin

Tom Frantz, President Avinash Kar, Attorney

Association of Irritated Residents Natural Resources Defense Council
Ms. Frances Wicher and Mr. Andrew Steckel

Comments on Proposed Action on Rule 4570, the 2004 SIP, the 2008 SIP Clarification, and the

2003 State Strategy

August 31, 2009

Page 11 of 11

Gary Rodriguez, Secretary Jesus Jaime, President

South Shafter Project Committee Shafter Chapter League of United Latin

American Citezens LULAC

Renee Nelson, President Francisco Martines

Clean Water and Air Matter Comité Unido de Plainview

Guadalupe Nuñez Irma Medellin

La Voz de Tonyville El Quinto Sol de America

Saul Morales Lucy Hernandez

La Nueva Esperanza de Alpaugh Comité West Goshen

Eunice Martinez

United for a Change in Tooleville