Enclosure 4-1 ENCLOSURE 4

COMMENT LETTER RECEIVED IN RESPONSE TO FALIFORNIA

INFRASTRUCTURE SIP

V IA U.S. M AIL AND O NLINE

January 22, 2014

California Environmental Protecti on Agency Air Resources Board Byron Sher Auditorium

1001 I Street Sacramento, CA 95814

Re: Comments Concerning Californi a’s Section 110(a) In frastructure 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 Ca lifornia’s sources of ozone and sulf ur dioxide (“SO 2 ”) pollution, we submit the following comments on California’s pr oposed Infrastructure State Implementation Plan (“SIP”) addressing the requirements for the 2008 eight-hour ozone and 2010 one-hour

sulfur dioxide National Ambien t Air Quality Standards (“NAAQ S”), 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 th at 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 pr imary ozone standard to 75 parts per billion (“ppb”) of the annual fourth-highest daily maxi mum eight-hour concentration averaged over 3 year. In 2010, EPA determined that a primary SO 2 NAAQS of 75 ppb from the 99th percentile of one-hour daily maximum concentr ations 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/rq3e8rzy6gwqpx7iogksEnclosure 4-2 health. These revised standards if properly im plemented will result in improvements in public health (including preventing premat ure deaths) and the environment.

When EPA revised the ozone standard, EPA recognized it was providing increased protection for public health, especially for child ren, the elderly, and asthma tics. This standard is meant to protect “against an array of O 3 -related adverse health effect s that range from decreased lung function and increase d 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 nonacci dental and cardiorespiratory mortality.” See National Ambient Air Quality Standard for Ozone, 73 Fed. Reg. 16,436, 16,436 (Mar. 27, 2008). Further, increase d 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 bill ion per year. EPA, F ACT S HEET : F INAL R EVISIONS TO THE N ATIONAL A MBIENT A IR Q UALITY S TANDARDS FOR O ZONE , at 1-3 (2008), at http://www.epa.gov/glo/pdfs/2008_03_factsh eet.pdf. In fact, 2011 and 2012 ozone ambient monitoring data indicate that EPA’s estim ates of the health be nefits from reducing
ozone exposure may have been low. 2

In 2010, EPA determined that a primary SO 2 NAAQS of 75 parts pe r billion (“ppb”) is necessary to protect public hea lth from the serious threats posed by short-term exposure to SO 2 , including decreased lung function, increased resp iratory symptoms such as chest tightness, wheezing, and shortness of breath, a nd other serious indicators of resp iratory 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 SO 2 NAAQS Rule”]. The health data re lied upon by EPA in promulgating the new standard overwhelmingly in dicates that increased asthma attacks and hospital visits are

attributable to short-term concentrat ions 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 impairme nts and other adverse impacts caused by exposure to these polluta nts 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 rapidl y 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 Terrest rial Climate Conditions,” Science, 2 Aug. 2013, Vol. 341, no. 6145, 486-492. Therefore, the benefit analysis likely underestimated the amount of

ozone reductions the 200 8 ozone NAAQS will require and conse quently 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 a nd control air pollution.” 42 U.S.C. § 7401(a)(4). Pursuant to section 109(b)(1) of the Act, EPA has established prim ary 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 pl ans (which EPA refers to as Infrastructure SIPs or “I-SIPs”) “include en forceable emission limitations . . . as well as schedules and timetables for compliance, as ma y be necessary or appropriate to meet the applicable requirements” of the Clean Air Ac t, 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 mainte nance 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 maintenan ce of national ambient air quality standards (“NAAQS”) through enforceable emission lim itations.”) (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 [NAA QS] 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 Requi rements for Reducing Sulfur Dioxide,” available

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

EPA may approve an Infrastruc ture SIP only if it finds that the SIP meets a number of requirements identified in sec tion 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 in terfere with th e attainment and maintenance of the NAAQS.”). For a plan to be adequate, it “must demonstrate that the m easures, rules, and regulations contained in it are adequate to provide for the timely attainment and main tenance of the national standard that it implem ents.” 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 Area s 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 promulga tion of a NAAQS, a state must “adopt and

submit to the Administrator...a plan which provides for impl ementation, 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 forEnclosure 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 th e Act, the term “emission imitation” means “ a requirement established by the State or the Administrator whic h limits the quantity, rate, or

concentration of emissions of air pollutants on a c ontinuous basis, including any requirement relating to the operation or main tenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operatio nal standard promulgated under this chapter.”

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

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

The legislative history of the Clean Air Ac t supports this interp retation. As the Senate Committee Report accompanying th e 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 ea ch State for sources of air po llution agents or combinations of such agents in such region and that these emission requireme nts 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 Confer ence Report, which stated that: “In order to implement the nationa l 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 comp liance, systems for monitoring both ambient air and emissions from individual sources, and adeq uate 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 Emi ssion 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 demonstrat e that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and main tenance 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 change s 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 dem onstration under subsection (a)(2) “shall contain

enforceable measures to assure attainment of th e 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 requir ements of the Act in cluded “economic incentives such as fees, marketable permits, and auctions of em issions rights.” 42 U.S.C § 7410(a)(2)(A).Enclosure 4-5 must contain emission limits that ad equately ensure the NAAQS is achieved. See 40 C.F.R. § 51.112(a). Although these regulati ons were developed before the Clean Air Act separated

Infrastructure SIPs from nonatta inment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the re gulations nonetheless a pply to I-SIPs. EPA has not changed the regulation si nce 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 nonattainme nt provisions of the Act. See Air Quality Implementation Plans; Restructuring SIP Preparati on Regulations, 51 Fed. Reg. 40,6 56, 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 appl y to I-SIPs. Thus, it is clear that I-SIPs must contain “measures, rules, and regulations” sufficient to en sure maintenance of the NAAQS.

C. Prior EPA Interpretations of the Act Require That Infrastructure SIPs Must Impose Emission Limits Ade quate 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. Fo r example, in March 2006, EPA disapproved Missouri’s attempt to revise the sulfur dioxide em ission limits in its I-SIP for two power plants

because the new emission limits would not ensure maintenance of the shor t-term sulfur dioxide NAAQS. See Approval and Promulgation of Implementa tion 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 impl ementation] 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 main tain 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 dioxi de 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 Implementati on 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 explai ned that “[u]nder 40 CFR 51.112(a), each SIP must demonstrate that the measures, rules, and regulations it contai ns are adequate to provide for the timely attainment and maintenance of the NAAQS.” See Approval of Air QualityEnclosure 4-6 Implementation Plans; Indiana; Disapproval of State Implementati on Plan Revision for ArcelorMittal Burns Harbor; Proposed Ru le, 78 Fed. Reg. 17,157, 17,158 (Mar. 20, 2013).

Because Indiana did not demonstrate that the Ar celorMittal 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 SO 2 emissions,” and, consequently, that removal of the lim it 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 SO 2 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 purporte d to postpone certain I-SIP start-up, shutdown, and ma lfunction (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 Opinio ns Hold That Infrastructure SIPs Must Impose Emission Limits Ade quate 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 se ction 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, th e Supreme Court explained that:

In complying with this requirement [t hat 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 pollu tion 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 appr oval from a state implementati on 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 postponeme nt 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 standa rds once they are reache d is well-recognized by

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

, for example, the First Circuit ex plained that, “[b]efore approvin g 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 insu re attainment and mainte nance 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 emi ssion limits that maintain the NAAQS. In Alaska Department of Envir onmental Conservation v. EPA , the Supreme Court explained that an Infrastructu re SIP under CAA section 110(a)(1) must be a “plan which provides for implementation, maintenance, an d enforcement of [NAAQS].” 540 U.S. 461, 470 (2004) (quoting section 110( a)(1)). “While States have wide di scretion in formulating their plans

. . . SIPs must include certain meas ures Congress specified to assu re 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 en forceable 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 mainte nance 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 de ference to a state is conditioned on the state’s submission of a plan ‘which satisfies the standa rds 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 anothe r provision—section 110(l) 6 —to evaluate whether a revised air quality plan will achieve the pollution reducti ons 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, a nd determin[ing] the effect on th is 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 approv ed 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 c onsideration the 1990 amen dments, which set new de adlines for attainment

6 Section 110(l) provides, in rele vant part, that “[t]he Administ rator shall not approve a revision of a [state implementation] plan if the revision woul d interfere with any applicable requirement concerning attainment and reasona ble further progress . . ., or any other ap plicable 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 re vision must not interfere with attainment of the NAAQS under section 110(l), an I-SIP must lik ewise include enforceable limits sufficient to ensure the initial plan provides for maintenance of the NAAQS under 110(a)(2)(A).

II. THE CALIFORNIA INFR ASTRUCTURE SIP IMPERMISSIBLY FAILS TO ADEQUATELY COMP LY WITH CLEAN AIR ACT SECTION 110(a)(2)(A) AND TO ENSURE A TTAINMENT AND MAINTENANCE OF

THE 2008 OZONE AND 2010 SO 2 NAAQS.

California’s Infrastructure SI P submission fails to include measures that sufficiently demonstrate that it will comp ly with CAA section 110(a)(2)(A), and therefore it cannot ensure the proper implementation, maintenance, a nd enforcement of th e 2008 ozone and 2010 SO 2 NAAQS as required. As discussed, under sect ion 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 appli cable requirements” of th e Clean Air Act (which include the requirement to maintain complian ce with the NAAQS). Yet, California’s submission

does not reference emission limita tions or other required measures that ensure compliance. See generally CalEPA, California Infrastructure SIP, [hereinafter “I-SIP Submission”].

The regulations that CalEPA cite s are insufficient to ensure co mpliance with the 2008 ozone and

2010 SO 2 NAAQS. California’s regulations contain exem ptions 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 exemp tions for start up, shutdown, and malfunctions. See e.g

., Amador County APCD, Rule 404: Up set Conditions, Breakdown or Sche duled Maintenance; El Dorado County APCD - Lake Tahoe Air Basin Rule 404: Upset Conditions, Breakdown or Scheduled Maintenance; El Dorado APCD - Mountain C ounties Air Basin, Rule 516 Upset and Breakdown Conditions; and Great Basin APCD: Rule 403: Breakdow n. Regulations that allow for exceedances of emission limits weaken the perm itting program and do not guarantee that the NAAQS will be attained and maintained. These regulations a nd possibly others not listed in th ese comments allow for exceptions that frustrate the purpose of the I-SIP and prevent California from en suring 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, Ca lEPA cites to a regul ation meant to reduce ozone levels that is only a pplicable to areas designate d 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 prec ursor, 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: PortlandEnclosure 4-9 Cement Kilns. California must make an adequate showing that area s not designated nonattainment will attain and maintain the NAAQS.

In addition to these regulations th at allow for exceptions, Californi a’s SIP contains emission limits that provide little assu rance that the 2010 SO 2 standard will be met. For instance, in the Bay Area AQMD, where the three largest stationary sources of SO 2 are located, see 2011 NEI CA SO2 17 Jan 2014, (based on 2011 National Emissions Invent ory), 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 consecutiv e minutes, 0.25 averaged over an hour, or 0.05 ppm averaged over twenty-four hours. These limits ar e not sufficient to meet the 0.075 ppm one-hour SO 2 standard. Bay Area AQMD, Regula tion Inorganic Gaseous Pollutant s: Sulfur Dioxide § 9-1-301. Additionally, in Butte County, a sing le source’s emission limit for sulf ur dioxide is se t at 2000 ppm or 0.2 percent by volume. Again, the 2010 SO 2 standard is set at 0.075 ppm. See Butte County APCD

Rule 231: Sulfur Oxides Emission Standards. A si milar standard is found in Calaveras County APCD, Rule 210: Sulfur Emissions, which limits a singl e 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 SO 2 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 enfo rceable 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 n ecessary restrictions on ozone precursor sources sufficient to ensure th e attainment and maintenance of the 2008 ozone NAAQS in areas designated attainment, as shown by the EPA’s ow n ozone data. Ozone monitor data in Kern, Riverside, San Bernardino, San Luis Obsi po, and Tehema counties may show 2008 ozone NAAQS exceedances in areas designated attainment. 8

These monitors reveal that ozone concen trations 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), a ttached 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 ar e located in the Bay Area AQMD.

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

Sierra Club could not determine from addresses of monitors, maps of nonattainment areas, and descriptions of nonattainment bound aries whether the monitors were in areas alr eady designated nonattainment or areas designated attainment or uncl assifiable. Sierra Club asks that CalEPA to please clarify whether the monitors are in area s designated nonattainment or attainment or

unclassifiable.Enclosure 4-10 lacks adequate emission limits to attain an d maintain the 2008 ozone NAAQS. California must clarify the location of these monitors and addr ess ozone levels when any monitor shows ozone exceedances in areas not designated nonatta inment 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 ppm 9

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, lis ted above, also show exceedances: Kern (#60290007), Riverside (#60650008), Riverside (# 60650012), Riverside (#60651010), Riverside (#60652002), Riverside (#60655001), Riversid e (#60658001), and San Luis Obsipo (#60798005). See Exhibit 5

.Enclosure 4-12 IV. THE CALIFORNIA INFRASTRUCTURE SIP IMPERMISSIBLY FAILS

TO INCLUDE ENFO RCEABLE ONE-HOUR SO 2 EMISSION

LIMITATIONS TO ENSURE ATTA INMENT AND MAINTENANCE OF THE NAAQS.

Even though the 2010 SO 2 NAAQS requirements impose a new, more protective standard for ambient air, California’s proposed I-SIP fails to include restrictions on major SO 2 sources to ensure that areas not designated nona ttainment will a ttain and maintain the new onehour SO 2 NAAQS. California fails to include ade quate enforceable emission limitations for

sources of SO 2 sufficient to ensure attainment and maintenance of the 2010 SO 2 NAAQS. 10 For example, there are seve ral large sources of SO 2 in California: Valero Refining Company in Benicia, Shell Martinez Refi nery in Martinez, and Phillip s 66 Carbon Plant in Rodeo. See

Exhibit 4. T 

### hese three sources combined emit more SO 2 

### than the next thirteen SO 2 

### emission sources combin ed in California. Id . Yet, nothing in the I-SIP sets short-term emission limits for these or for other large sources of SO 2 . Emission limits are especially important for meeting the one-hour SO 2 NAAQS, given the “strong so urce-oriented nature of SO2 ambient impacts.” Final SO 2 NAAQS Rule, 75 Fed. Reg. at 35,570. In order to comply with section 110(a)(2)(A), the California propo sed I-SIP must be amended to ensure these

sources cannot cause exceedances of the 2010 SO 2 NAAQS. CalEPA must promulgate enforceable emission limits with one-hour averagi ng time into its I-SIP to achieve and maintain

the one-hour SO 2 NAAQS. These emission limits must apply at all times including during periods of start-up, s hutdown, and malfunction.

A. California must include enforceable SO 2 emission limits with a one-hour averaging period that apply at all times

As discussed, the emission limitations necessa ry to comply with section 110(a)(2)(A) mean “a requirement established by the State or th e 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 main tenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operatio nal 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

SO 2 NAAQS. In 2011, EPA disagreed with the Ka nsas 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, Regiona l Administrator, EPA Region 7

10 As outlined by EPA in the Final SO 2 NAAQS Rule, 75 Fed. Reg. at 35,551, air dispersion modeling is the best method for evaluati ng the short-term im pacts of large SO 2 sources. EPA has acknowledged that, for the one-hour SO 2 NAAQS, modeling is the most accurate means of determining attainment with the NAAQS. Final SO 2 NAAQS Rule at 35,551, 35,570. Accordingly, California must include source-specific SO 2 emission limits in the SIP that, when modeled, show no exceedances of the NAAQS.Enclosure 4-13 to Dr. Robert Moser, Secretary, Kansas Depart ment of Health and Environment (Feb. 3, 2011),

attached hereto as E xhibit 6. EPA explained

[i]t is well known that there can be c onsiderable variabili ty in actual 1-hour emission rates. Therefore, to ensu re protection of the 1-hour . . . SO 2 NAAQS . . . the permit needs to contain . . . SO 2 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 pr ocess by EPA and the I-S IP approval, as PSD permits reflect the provisions of a state’s SIP including fede ral 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 shor t-term sulfur dioxide NAAQS” because they were based on an annual average. See Approval and Promulgation of Im plementation Plans; State of Missouri, 71 Fed. Reg. 12,623, 12,624 (Mar. 13, 2006).

In addition, the I-SIP must re quire monitoring of these SO 2 emission limits on a continuous basis using a continuous emission monitor system or sy stems. 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 SO 2 NAAQS, the emission limits must be monitored during every hour of operation.

The I-SIP is meant to implement, mainta in, 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 en sure compliance with

the one-hour SO 2 NAAQS. Therefore, California must in clude emission limitations for the all major SO 2 sources that reflect the new one-hour SO 2 NAAQS limitation and the proper averaging period.

V. THE CALIFORNIA INFR ASTRUCTURE SIP IM PERMISSIBLY FAILS

TO ADDRESS SOURCES SIGNIF ICANTLY CONTRIBUTING TO

NONATTAINMENT OR INTERFERE NCE WITH MAINTENANCE OF THE NAAQS IN DOWNWIND STATES.

California must address interstate trans port of California’s emissions that would

contribute to exceedances or in terfere with the maintenan ce of the NAAQS. Under section 110(a)(2)(D), a SIP must contain “adequate provi sions (i) prohibiting . . . any source . . . from emitting any air pollutant in amounts which will— (I) contribute significantly to nonattainment in, or interfere with maintenan ce 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 addre ss any cross-state impacts that are due to sourcesEnclosure 4-14 within the state. See I-SIP Submission at 17-18. This is in adequate and should result in EPA disapproving th e submittal.

The Clean Air Act sets a mandatory duty for st ates to submit I-SIPs w ithin 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 issu ing 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 cr eate guidance) (citing 42 U.S.C. § 7491(b)(1)). Therefore, California must create a SIP to addre ss 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 or der for states to submit SIPs addressing those obligations, this interpretation c onflicts with the plain language of CAA section 110(a)(1), which indisputably requires states to submit Infrastructu re SIPs within three ye ars 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 nonatt ainment or interfering with ma intenance 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 SO 2 NAAQS.

VI. THE CALIFORNIA INFRAS TRUCTURE SIP IMPERMISSIBLY RELIES

ON FEDERAL IMPLEMENTATION PLANS TO ADDRESS ITS

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

California cannot rely on Federal Implementatio n 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 sta tionary source permitting prog ram. I-SIP Submission at 13. However, in actuality, only ten have fully a pproved prevention of si gnificant deterioration (“PSD”) programs. Id . Thus, thirteen air distri cts 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 CA A 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 thes e 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 en sure that the 2008 eight-hour ozone and 2010 one-hour sulfur dioxide NAAQS ar e 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 sour ces 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