June 2, 2002
Chairperson Randy Attaway and Members of the Board
Bay Area Air Quality Management District (BAAQMD)
939 Ellis Street
San Francisco, CA 94109
Chairperson Sharon J. Brown and MTC Commissioners
Metropolitan Transportation Commission (MTC)
101 Eighth Street
Oakland, CA 94607
Supervisor Bill Carroll, President
Association of Bay Area Governments (ABAG)
101 Eighth Street
Oakland, CA 94607
Re: CBE Comments on the BAAQMD/MTC/ABAG Proposed Final 2001 Ozone Attainment Plan (June 2001 version)
Dear Members of the Boards of Directors of the Bay Area Air Quality Management District, the Metropolitan Transportation Commission, and the Association of Bay Area Governments:
On July 18, 2001, you will be making one of the most important decisions concerning the air quality of the Bay Area – the consideration of the San Francisco Bay Area Ozone Attainment Plan (June 2001 version) (hereinafter, “2001 Air Plan”). The Air Plan sets forth pollution control measures for all sources in the nine county Bay Area, from automobiles, to refineries, and from power plants to house paints. The Air Plan is required to be the legally binding blue print setting forth how the Bay Area will achieve clean, healthful air. Unfortunately, the 2001 Air Plan falls far short of the minimum requirements of state or federal law. On behalf of our thousands of members who reside in the Bay Area, we urge you to reject this clearly inadequate Air Plan.
On March 30, 2001 the United States Environmental Protection Agency (US EPA) found the BAAQMD’s 1999 Ozone Attainment Plan (“1999 Air Plan”) to be legally inadequate under the federal Clean Air Act, and ordered the BAAQMD to develop an improved Ozone Attainment Plan. 66 Fed.Reg. 17379 (Mar. 30, 2001). EPA stated in the Federal Register that “the State will be required to submit new plan no later than 12 months [after final disapproval.]” 66 Fed.Reg. 17379. Since EPA’s action will not become final until August 28, 2001, BAAQMD has until at least August 28, 2002 to develop an improved Clean Air Plan.
Rather than taking advantage of the time granted by EPA, the BAAQMD/MTC/AGAG (“State Agencies”) staff hastily threw together a nearly identical and equally illegal plan for submission to EPA more than one year before the deadline – without the public review and analysis required by state and federal law. In their haste, the agency staff failed even to prepare an environmental impact report (EIR) for the 2001 Air Plan, or to carry out the minimal public review process required by the California Environmental Quality Act (CEQA). We encourage the BAAQMD to take advantage of that timeframe to involve the public fully in developing an air plan that will bring clean air to the Bay Area.
The 2001 Air Plan is clearly legally inadequate for all of the same reasons that EPA rejected the 1999 Air Plan. Indeed, the two documents are substantially identical. For this reason, CBE repeats and incorporates herein by reference all of our previous comment letters concerning the 1999 and 2001 Air Plans, and all of the comments submitted by other public interest commenters.
I. OZONE POLLUTION IS A SERIOUS HEALTH THREAT IN THE BAY AREA.
In 1970 Congress enacted legislation requiring that the health-threatening smog afflicting our major metropolitan areas be cleaned up by 1975. Today, 30 years after the Clean Air Act was adopted and 26 years after Congress intended all United States residents to be breathing clean and healthy air, unsafe levels of ozone (or "smog") persist in the San Francisco Bay Area (or "Bay Area"). Children, the elderly and those with respiratory conditions, exacerbated by ozone, are suffering as a result. Not surprisingly, rates of hospitalization for asthmatics are sky-high in the Bay Area's most populous counties of Santa Clara, Alameda, Contra Costa and San Francisco.
Over the past three decades, the local agencies responsible for protecting our air quality have adopted one inadequate plan after another in their unsuccessful efforts to eliminate this public health risk. Over and over, the agencies have failed to take the tough steps necessary to control smog, instead relying on a series of overly optimistic projections that the problem will be resolved through new emission reduction technology. Compounding the inadequacy of their plans is the agencies’ failure to fully implement them. The net result is that the Bay Area has yet to meet a single one of the four consecutive deadlines for attainment of the National Ambient Air Quality Standard established by the Environmental Protection Agency (“EPA”) for ozone (“national standard” or “ozone standard”). The most recent deadline of November 15, 2000 was no exception.
What is Ozone? Ozone, the principal element of smog, is a secondary pollutant produced when two precursor air pollutants - volatile organic compounds ("VOCs") and nitrogen oxides ("NOx") - react in sunlight. American Petroleum Institute v. Costle, 665 F.2d 1176, 1181 (D.C. Cir. 1981). VOCs and NOx are emitted by a variety of sources, including cars, trucks, industrial facilities and petroleum-based solvents. 1982 Plan at 2. Despite new automobile technologies, between 1978 and 1999 cars and trucks have remained consistently responsible for approximately 45-50 % of NOx and 40-45% of VOC emissions in the Bay Area while stationary sources such as refineries and power plants are responsible for the other half. Id. at 53.
The human health and associated societal costs from ozone pollution are extreme. Just this year EPA summarized the effects of ozone on public health:
A large body of evidence shows that ozone can cause harmful respiratory effects, including chest pain, coughing and shortness of breath, which affect people with compromised respiratory systems most severely. When inhaled, ozone can cause acute respiratory problems; aggravate asthma; cause significant temporary decreases in lung function of 15 to over 20 percent in some healthy adults; cause inflammation of lung tissue, produce changes in lung tissue and structure; may increase hospital admissions and emergency room visits; and impair the body's immune system defenses, making people more susceptible to respiratory illnesses.
66 Fed. Reg. 5002, 5012 (Jan. 18, 2001). Moreover, ozone is not an equal opportunity pollutant, striking hardest the most vulnerable segments of our population: children, the elderly, and people with respiratory ailments. Id. Children are at greater risk because their lung capacity is still developing, because they spend significantly more time outdoors than adults – especially in the summertime when ozone levels are the highest, and because they are generally engaged in relatively intense physical activity that causes them to breathe more ozone pollution. Id.
Ozone has severe impacts on millions of Americans with asthma. See 66 Fed. Reg. 5002, 5012 (Jan. 18, 2001) (EPA points to "strong and convincing evidence that exposure to ozone is associated with exacerbation of asthma-related symptoms"). Moreover, as EPA observes, the impacts of ozone on "asthmatics are of special concern particularly in light of the growing asthma problem in the United States and the increased rates of asthma-related mortality and hospitalizations, especially in children in general and black children in particular." 62 Fed. Reg. At 38864. In fact:
[A]sthma is one of the most common and costly diseases in the United States. . . . Today, more than 5 percent of the US population has asthma [and] [o]n average 15 people died every day from asthma in 1995. . .. In 1998, the cost of asthma to the U.S. economy was estimated to be $11.3 billion, with hospitalizations accounting for the largest single portion of the costs. 66 Fed. Reg. at 5012.
The health and societal costs of asthma are wreaking havoc here in California. There are currently 2.2 million Californians suffering from asthma. In 1997 alone, nearly 56,413 residents, including 16,705 children, required hospitalization because their asthma attacks were so severe. Shockingly, asthma is now the leading cause of hospital admissions of young children in California. Id. at 1. Combined with very real human suffering is the huge financial drain of asthma hospitalizations on the state's health care system. The most recent data indicate that the statewide financial cost of these hospitalizations was nearly $350,000,000, with nearly a third of the bill paid by the State Medi-Cal program. Id. at 4.
In the Bay Area, African-American children pay the highest price for ozone pollution. Whereas the statewide asthma hospital discharge rate is an unacceptably high 216 per 100,000 children, the rates for African-American children in the four most populous counties served by MTC – Santa Clara, Alameda, Contra Costa, and San Francisco counties – soar almost ten-fold to 2036, 1578, 1099 and 361, respectively,. With asthma health complications a leading cause of school absenteeism , these same children struggling with a life-long health affliction are also being denied the same level of education as healthy children.
Improving public transit can produce dramatic air quality and public health benefits, including reduced asthma hospitalization rates. A study of the City of Atlanta during the 1996 Olympics provided a dramatic illustration of this. When Atlanta temporarily unclogged its streets by increasing public transit and implementing other measures to reduce private automobile use, the U.S. Centers for Disease Control and Prevention found that asthma-related hospitalizations and emergency room visits among children in the region’s various hospitals decreased by 11 to 44 percent from prior levels.
Reducing stationary source emissions from refineries, power plants and other sources could produce equally dramatic public health benefits. A study published in the American Journal of Public Health (March 1991, Detels, et al) found markedly decreased lung capacity among non-smokers living downwind of refineries. The study found that “the deterioration in lung capacity is long lasting with chronic exposure to air pollution.”
The Bay Area's Repeated Failures to Attain the Ozone Standard: The San Francisco Bay Area has exceeded to national ozone standard in 29 of the 30 years since it was promulgated by EPA. After the Bay Area missed its first attainment deadline in 1975, the region was in 1978 formally designated by EPA as a nonattainment area – a designation that, except for an erroneous and quickly reversed re-designation to attainment, continues to this day. See, generally, 66 Fed.Reg. 17379 (Mar. 30, 2001). The first of a long line of inadequate plans for controlling ozone pollution, the San Francisco Bay Area Air Quality Plan was adopted by the responsible local and State agencies – MTC, the Bay Area Air Quality Management District (“Air District’), the Association of Bay Area Governments (“ABAG”) and the California Air Resources Board (“CARB”) – in 1978 and was intended to achieve attainment by the next attainment deadline, December 31, 1982.
When the region failed to meet that attainment deadline, EPA granted the maximum extension authorized by the Clean Air Act, to December 31, 1987. See 48 Fed. Reg. 4075, 5075 (Feb. 3, 1983). In December 1982, MTC and the other local and State agencies adopted the Bay Area Air Quality Plan ("1982 Plan"). See 48 Fed. Reg. 57,130 (Dec. 28, 1983). When the Bay Area failed to attain by the 1987 deadline, EPA in 1988 formally found the obvious – i.e., that the 1982 Plan was substantially inadequate to bring the Bay Area into attainment with the national ozone standard – and sent MTC and the other agencies back to the drawing board. See 59 Fed. Reg 49361. (May 26, 1994).
While it was clear that the 1982 Plan was inadequate, it was equally clear that MTC and the Air District the were not carrying out even those control measures contained in that Plan, nor was EPA taking any action to compel implementation. In 1989, CBE and the Sierra Club filed successful citizen enforcement actions to force these agencies to implement many of these 1982 control measures. See CBE v. Deukmejian, 731 F.Supp. at 1454 (“CBE I”); CBE v. Wilson, 775 F.Supp. 1291, 1298 (N.D.Cal. 1991) (“CBE II”).
In 1993, MTC, joined by the Air District, ABAG and CARB, claimed that the Bay Area had reached attainment with the national ozone standard and requested that EPA re-designate the region as an attainment area. In the event they were successful in this effort, they complied with EPA’s demand for a new plan by submitting both a proposed attainment plan and a proposed “maintenance plan” (required for attainment areas to ensure they stay in attainment). In June 1995, EPA acquiesced to the agencies’ request, simultaneously approving a plan for ensuring that the region would remain in attainment. 60 Fed. Reg. 27,028 (May 22, 1995). That plan continued to include TCM 2, the measure at issue in this case. However, less than forty-eight hours after the redesignation became final, the Bay Area again exceeded the national ozone standard, proceeding to record that summer more than 32 Exceedances at 15 different monitoring stations. The re-designation was obviously in error, the 1994 Maintenance Plan had clearly failed, and the Bay Area was not in attainment with the national ozone standard as of the November 15, 1996 deadline.
When EPA again failed to take action, CBE and the Sierra Club, with the support of some of other community groups, formally petitioned EPA to re-designate the Bay Area yet again. EPA granted the petition in 1998, restoring the Bay Area’s ozone non-attainment status. 63 Fed. Reg. 37,258 (July 10, 1998). At the same time, EPA demanded that MTC and the other agencies submit by June 15, 1999 a plan to bring the Bay Area into attainment with the ozone standard by Nov. 15, 2000.
On August 13, 1999, CARB submitted to EPA the San Francisco Bay Area Ozone Attainment Plan ("1999 Attainment Plan") developed by MTC and the other agencies, with the mobile and stationary control measures contained in that Plan effective pending EPA review. The 1999 Attainment Plan continued to include TCM 2. Once again, the Bay Area’s attainment deadline came and went without attainment of the ozone standard.
On January 8, 2001, the same coalition of plaintiffs brought another citizen enforcement action ; this one to force EPA to take action on the 1999 Attainment Plan. After suit was filed, EPA published a proposed rulemaking rejecting the 1999 Plan as legally inadequate, and ordering the BAAQMD, MTC and ABAG to adopt a new and improved Air Plan. 66 Fed. Reg. 17379, 17381 (Mar. 30, 2001)
II. THE 2001 AIR PLAN IS INADEQUATE BECAUSE IT FAILS TO INCLUDE ALL REASONABLY AVAILABLE CONTROL MEASURES.
One of the primary reasons cited by EPA for disapproval of the 1999 Air Plan was the State Agencies’ failure to include all “reasonably available control measures (RACM) as expeditiously as practicable.” 66 Fed.Reg. 17381. Under the federal Clean Air Act, when a region fails to meet federal clean air standards, it must adopt all “reasonably available control measures.” US EPA found that “there were a number of public comments made requesting consideration of specific transportation and stationary source control measures. Because the plan fails to justify why these or other potential measures are not reasonably available and would not advance the attainment date, we are proposing to disapprove the RACM demonstration in the 1999 Plan.” Id.
The 2001 Air Plan continues to suffer from the failure to include all “reasonably available control measures.” The 2001 Air Plan actually proposes to delete several control measures that were in the previous Plan, including requirements for car-pool lanes, ride-sharing, and increase public transit ridership. The new Plan also refuses to include dozens of measures that are already required by state law – rendering those measures largely unenforceable. The 2001 Plan also refuses to include several feasible measures suggested by CBE and other community groups. All of these measures are “reasonably available,” and by law must be included in the Air Plan.
A. THE FEDERAL AIR PLAN MUST INCLUDE ALL MEASURES FROM THE STATE CLEAN AIR PLAN.
The BAAQMD and MTC must prepare both a federal Air Plan (the 2001 Air Plan here at issue) required by the federal Clean Air Act, and a state Clean Air Plan (CAP), required by the State Clean Air Act. Under federal law, the 2001 Air Plan must include all “reasonably available control measures.” Under state law, the CAP must include “all feasible control measures.” As is discussed in the footnote below, there is little or no difference between the federal “reasonable” requirement, and the state “feasible” requirement. Pursuant to state law, the BAAQMD and MTC have made findings that every measure in the state CAP is technologically and economically “feasible” and cost effective. A “feasible” control measure under state law is “reasonably available” under federal law. Thus, the State Agencies’ continued refusal to include “feasible” measures from the state CAP in the federal Air Plan is a clear violation of law.
The Bay Area state CAP has dozens of pollution control measures that are not included in the federal 2001 Air Plan. As a matter of law, these measures are “reasonably available” and must be included in the federal Air Plan. Measures that the BAAQMD has refused to incorporate in the federal Air Plan include measures that would reduce pollution from refineries, power plants, and other sources by hundreds of tons each year. The effect of leaving the state measures out of the federal plan is that they are not “federally enforceable.” Measures that are included in the federal Air Plan can be enforced through citizen suit or by any state or local agency or the US EPA, even if the Air District fails to enforce the measure due to a lack of resources or political will. By contrast, there is massive non-compliance with many state CAP measures. The BAAQMD’s well-publicized failure to enforce 1300 violations of the CAP is a clear example of this problem.
The following is a partial list of measures the state agencies have refused to include the following measures in the 2001 Air Plan, despite the fact that they are required by state law :
· Regulation 9 Rule 10: requiring pollution control equipment on refineries to reduce NOx emissions. Refineries are among the largest sources of NOx emissions in the region. This rule requires installation of equipment (selective catalytic reduction (SCR)) that vastly reduces NOx emissions. Despite the fact that this rule is required by state law, it appears that no Bay Area refineries have installed the required pollution control equipment, and the BAAQMD staff has supported refinery efforts to avoid controls. Earlier this year, the California Superior Court in San Francisco held that the BAAQMD violated state law when it decided to allow Valero Refinery to avoid installing NOx control equipment required by this rule, and ordered the BAAQMD to pay fees and costs in excess of $230,000. Communities for a Better Environment v. BAAQMD, Case No. 313969. Putting this rule in the federal Air Plan would make it federally enforcable.
· Regulation 9 Rule 11: requiring pollution control equipment on power plants to reduce NOx emissions. Power plant are also among the largest sources of NOx emissions in the region. This rule requires installation of equipment (selective catalytic reduction (SCR)) that vastly reduces NOx emissions. Despite Despite the fact that this rule is required by state law, no many Bay Area power plant have refused to install the required pollution control equipment, and the BAAQMD staff has supported efforts to avoid controls.
· Regulation 8 Rules 44 and 46: requiring controls on emissions from loading oil tankers. Loading oil tankers results in massive emissions of VOCs, similar in concept to the vapors released when filling an automobile gas tank, only thousands of times larger. This rule requires vapor recovery equipment for oil tankers similar to the vapor recovery nozzles required at gas stations. Despite the fact that the rule is required by state law, the BAAQMD has refused to include it in the state plan. Also, the BAAQMD has refused to include “purging and gas freeing” in the operations covered by the rule. This is despite the fact that the SCAQMD has a similar requirement (Rule 1142) in its federally-enforceable Air Plan.
· Regulation 8 Rule 4: Requires controls for coating of rubber and glass. Although this is part of the state plan, the BAAQMD refuses to put the measure in the federal Plan. The SCAQMD’s similar Rule 1145 is part of its federal plan.
· Rule 8-45 (CAP Measure A21): Requires low emission automobile paints. Although it is required by the state CAP, the BAAQMD claims that it is not “reasonably available,” and therefore refuses to include it in the federal Air Plan. (Ozone Attainment Plan (June 2001) p.64)
· Rule 8-32 (CAP Measure A22): Requires low VOC wood varnishes and sealers. Emissions of 73 tons per day. Although it is required by the state CAP, the BAAQMD claims that it is not “reasonably available,” and therefore refuses to include it in the federal Air Plan. (Ozone Attainment Plan (June 2001) p.64) The Ventura County APCD has a much more stringent requirement (275 grams per liter in Ventura compared to 550 grams per liter in Bay Area). The BAAQMD refuses to adopt the more stringent Ventura standard, although it is clearly “reasonably available.”
· CAP Measure A23: Requires low emission concrete coatings. BAAQMD refuses to add this measure to federal plan, despite fact that concrete coating emissions are 100 pounds per day, or 18 tons per year. BAAQMD concludes that emission reductions are “de minimis.” (Ozone Attainment Plan (June 2001) p.65)
· Regulation 9 Rule 6 (CAP Measure D8): Requires low-NOx water heaters. Although it is required by the state CAP, the BAAQMD claims that it is not “reasonably available,” and therefore refuses to include it in the federal Air Plan. (Ozone Attainment Plan (June 2001) p.65) The SCAQMD water heater rule is twice as stringent, requiring emissions less than 20 nanograms per joule, compared to the BAAQMD 40 nanograms per joule.
· Rule 8-29 (CAP Measure A3): Requires low-VOC aerospace coatings, paint strippers, electronic component strippers, and other solvents. The BAAQMD refuses to place this measure in the federal Air Plan. The SCAQMD has an even more stringent rule.
· Rule 8-31 (CAP Measure A6): Requires low emission glass and rubber coating products. BAAQMD refuses to put this rule in the federal Air Plan, despite fact that SCAQMD rule is more stringent. (Ozone Attainment Plan (June 2001) p.66)
· CAP Measure C8: Requires controls on refinery wastewater processes. BAAQMD refuses to place measure in federal plan.
A. THE FEDERAL AIR PLAN MUST INCLUDE ALL MEASURES REQUIRED BY OTHER AIR DISTRICTS.
There are numerous pollution control measures that are required by other air districts that the BAAQMD and MTC have refused to put in the Air Plan. These measures are obviously “reasonably available,” and must be included in the Air Plan. These measures include, but are not limited to the following:
· SCAQMD Diesel Fleet Rule: The SCAQMD has adopted a rule requiring operators of large diesel fleets, such as garbage trucks, school buses, and transit operators, to purchase natural gas replacement vehicles or other clean technology. Despite the fact that this rule will generate tremendous benefits for public health, the BAAQMD has refused to adopt a similar rule. (Ozone Attainment Plan (June 2001) p. 63)
· SCAMD Rule 1173 (Refinery fugitive emissions): The SCAQMD rule requires leaking refinery components to be fixed on a faster time-line than the BAAQMD rule. The BAAQMD refuses to adopt a similar time limit. (Ozone Attainment Plan (June 2001) p. 56)
· SCAQMD Rule 1145 (Rubber and glass coating): The SCAQMD has a strict rule for low-emission rubber and glass coating products. The BAAQMD refuses to put a similar rule in the federal Air Plan. (Ozone Attainment Plan (June 2001) p. 56)
· Ventura APCD Wood Coatings Rule: The Ventura Air District has a more stringent rule for wood product manufacturers, requiring low-VOC “clear top coats,” (varnishes and sealers). The Ventura limit is 275 grams per liter, compared to the BAAQMD limit of 550 grams per liter. The SCAQMD is scheduled to adopt the same 275 grams per liter limit in July 2005. The BAAQMD refuses to adopt the 275 gpl limit. (Ozone Attainment Plan (June 2001) p.64)
· SCAQMD Residential Water Heater Rule: The SCAQMD requires residential water heater emissions of NOx to be less than 20 nanograms per joule by 2002 and 10 nanagrams per joule by 2005. The BAAQMD standard is 409 nanograms per joule, and the BAAQMD refuses to adopt the stricter SCAQMD standard. (Ozone Attainment Plan (June 2001) p.65)
· SCAQMD Aerospace Coatings Rule: As stated in the Ozone Attainment Plan (June 2001), the “BAAQMD Regulation 8, Rule 29 now has less stringent standards than the corresponding South Coast rule for several categories: fuel tank coating, surface pre and cleanup solvent, paint stripping, PC board fabrication, strippers and maskants for electronic component fabrication, and high temperature adhesive bonding primer.” The BAAQMD refuses the adopt the stricter SCAQMD standards. (Ozone Attainment Plan (June 2001) p.66)
· SCAQMD Plastic Parts and Products Rule: The BAAQMD admits that “the SCAQMD rule, unlike the BAQMD rule, also extends to coating of glass and rubber products.” Nevertheless, the BAAQMD refuses to adopt the stricter SCAQMD standard. (Ozone Attainment Plan (June 2001) p.66)
A. THE AIR PLAN MUST INCLUDE REASONABLY AVAILABLE NOx MEASURES, CONTRARY TO ASSERTIONS MADE BY THE BAAQMD AND MTC.
As discussed above, ozone is created by a combination of nitrogen oxides (NOx) and volatile organic compounds (VOCs). Thus, when an area exceeds ozone standards, the federal Clean Air Act requires the adoption of all reasonably available control measures for sources of both NOx and VOCs. Clean Air Act §182(f); American Petroleum Institute v. Costle, 665 F.2d 1176, 1181 (D.C. Cir. 1981). As noted by atmospheric scientist Schuyler Fishman, formerly of Lawrence Berkeley Laboratory, small “Any additional emissions of NOx and VOCs will add to the burden of ozone precursors in the Bay Area.: (Declaration of Schuyler Fishman, attached hereto and incorporated by reference).
The 2001 Air Plan contains almost no NOx reduction measures (a total of 0.7 tons per day). In fact, the state agencies go to great lengths in arguing that no additional NOx reductions are required for various atmospheric reasons. However, the agencies completely ignore the fact that EPA has already rejected this position, finding that the agencies must adopt all reasonably available control measures for both NOx and VOCs. EPA rescinded the Bay Area’s NOx waiver in 1997, stating, “It is clear, upon final redesignation of the Bay Area to nonattainment based on subsequent violations of the ozone NAAQS, that the basis for granting the original NOx waiver no longer exists.” 62 Fed. Reg. 66578 (Dec. 19, 1997).
Thus, the BAAQMD, MTC and ABAG must include all reasonably available NOx control measures in the Air Plan. These include, but are not limited to Rule 9-10 and Rule 9-11, requiring NOx controls for refineries and power plants, as well as numerous other feasible NOx control measures. At the very least, the agencies may not remove measures that reduce NOx and VOC emissions, or cease implementation of important measures such as TCM 2 (requiring a 15% increase in public transit ridership).
B. MEASURES PROPOSED FOR DELETION ARE REASONABLY AVAILABLE, AND MUST BE INCLUDED IN AIR PLAN.
The 2001 Air Plan proposes to delete numerous measures from the prior plan. Of course, the deleted measures are “reasonably available,” and so must be retained at least until the Bay Area meets federal clean air standards. There is absolutely no basis to make negative progress by removing feasible measures from the Air Plan.
The 2001 Air Plan proposes to delete four transportation control measures (TCMs) from the SIP, TCM 6, 11, 12, 16, and proposes to cease implementation of TCM 2. These are all reasonably available control measures that should be retained in the plan, and should be implemented as expeditiously as possible.
TCM 12 is the “Santa Clara Communter Transportation Program,” requiring improved CalTrain service, car pool lanes, ridesharing, express bus service, and park and ride lots. This measure was estimated to cause a massive 14% reduction in carbon monoxide levels. It would also cause a similar dramatic decrease in NOx and VOCs by encouraging more people to take public transportation and car pools. Removing this measure from the plan risks backsliding on progress that has already been made. Since TCM 12 is a reasonably available means to reduce NOx and VOC pollution, it should remain in the Air Plan.
TCM 6 requires improved light rail service in the Guadalupe Corridor and BART extensions to North Concord and Warm Springs. The 2001 Air Plan states that these measures have already been designed and thus will be implemented. However, until the stations are actually built and in service, the measure should remain in the plan. Even after the stations are constructed, the measure should remain in the plan to ensure that the stations are properly maintained and operated to ensure continued air quality benefits. Without the measure, there is no federally enforceable commitment to complete and operate the stations. It is therefore premature to delete this measure from the plan. (Ozone Attainment Plan (June 2001) p. 26)
TCM 16 requires BART service to Colma, with an emission reduction of 0.06% VOC and 1.40% NOx. Of course, the BART station at Colma is completed. However, if TCM 16 is removed from the plan, then there will be no federally enforceable requirment for the station to remain in service at a level to achieve the required emission reductions. While at the present time CBE agrees with the OAP statement that it is “unlikely” that this station would be removed from service, as is evident from Amtrak and other commuter rail services, budget priorities can change over time, leading to atrophy of certain rail lines. This measure should remain in the plan to ensure that there is a federally enforceable requirement to maintain service at the Colma BART station at a level sufficient to ensure the stated VOC and NOx emission reductions. Removing the measure from the Air Plan creates a fair argument that VOC and NOx emissions could increase in the Bay Area by as much as 0.06% and 1.40% respectively – an amount far in excess of the relevant significance thresholds. (Ozone Attainment Plan (June 2001) p. 28)
TCM 11 establishes a “Gasoline Conservation Awareness Program (GasCAP), which teaches large fleet vehicle drivers how to drive in a manner that reduces gasoline consumption. This measure has the potential to create substantial reductions in VOC and NOx emissions in addition to carbon monoxide reductions. It is clearly a feasible measure that reduces VOCs and NOx, and should remain in the Air Plan.
TCM 2 requires a 15% increase in transit ridership regionally. MTC does not dispute the fact that it has never met this goal. In fact, according to MTC’s own data, transit ridership has increased by only 3.63% since 1982 (the relevant time period). As a result, EPA refused to delete this measure from the Air Plan. Nevertheless, the MTC now proposes to take no further action to implement TCM 2. Of course, this proposal is blatantly illegal, and CBE, the Sierra Club and other organizations are currently suing the MTC for its refusal to implement TCM 2. Bayview Advocates, CBE, Sierra Club, et al v. MTC, C-01-0750 TEH (U.S. Dist. Ct. N.D.Cal.). From an air quality perspective, the MTC’s proposal to cease implementation of TCM 2 could result in backsliding on progress that has already been made by increasing transit ridership by 3.63%, while also eliminating the projected benefit from the measure of 0.72 tons per day of VOC and ¼ tons per day of NOx. Clearly, this reasonably available control measure should remain in the Air Plan, and the MTC must implement it as expeditiously as practicable.
C. OTHER REASONABLY AVAILABLE MEASURES MUST BE INCLUDED IN THE PLAN.
CBE and other commenters have suggested numerous additional pollution control measures that are reasonably available, and which should be included in the Air Plan. The Air District and MTC have refused to include almost all of these measures. Many were dismissed as “de minimis,” because projected emission reductions were less than 0.1 tons per day (200 pounds per day). This de minimis threshold is nowhere to be found in the Clean Air Act. In fact, the BAAQMD’s own CEQA rules consider an environmental impact to be “significant” if it exceeds 80 pounds per day. It is difficult to conceive of how an impact can be at the same time “significant” and “de minimis.” Of course, a large number of individually small reductions in pollution can add up to significant progress toward clean air. Thus, the Clean Air Act requires the agencies to adopt all reasonably available control measures. Every feasible measure should be included in the Air Plan, even if the reductions from a single measure may be less than 200 pounds per day. Certainly, if the BAAQMD asks individuals to refrain from barbequing on ozone alert days, it understands that small reductions in emissions can be cumulatively considerable.
1. THE BAAQMD SHOULD CONSIDER IMPOSING TAXES BASED ON EMISSION LEVELS AS ALLOWED BY STATE LAW.
In 1975 the legislature passed a provision allowed the BAAQMD to impose “differing tax formulas” based on factors including pollution levels. Health and Safety Code §40231 states:
The bay district board may establish, within the bay district, zones wherein differing tax formulas may be applied. In establishing such zones, the bay district board shall consider the degree of concentration of population, the number, nature, and dispersal of the stationary sources of air pollution, whether the area is a rural agricultural area, and the presence or absence of industry.
The BAAQMD should exercise this authority to levy taxes on industry based on their air pollution emissions, and their proximity to population centers. Such a regulation would provide financial incentives for industries to reduce their emissions, especially when they impact nearby residents. This is clearly a “reasonably available control measure” since it is specifically provided by state law. Yet the BAAQMD does not include any taxation measures in its 2001 Air Plan. See also, Health and Safety Code §40272, allowing the BAAQMD to impose taxes.
2. STATIONARY SOURCE CONTROL MEASURES
CBE has commented extensively on reasonably available control measures which the District could add to the plan recently, and over the years. CBE concentrated on providing a detailed evaluation of refinery and power plant issues, but the same detailed analysis could also be done for other Bay Area industries. EPA has agreed that many measures proposed during commenting on the 1999 plan appear to be reasonably available, despite the District’s repeated dismissal of these clearly available measures, which are already in place at some refineries. EPA disapproved the 1999 plan in part because of the failure to include all reasonably available controls. The most recent in a long series of comments we submitted to EPA and the District on this topic was dated 5/14/01, and is attached, rather than re-hashing these issues once more. Please see this letter.
The following is a summary of our comments in that letter:
· Inventory is underestimated: The District inventory is underestimated, according to the District’s own staff, according to monitoring done by the District, according to the District’s own statements, and according to Congressman Waxman’s report. The District inventory also fails to take into account increasing emissions from power plants.
· Enforcement is lax: The District is far behind in enforcement of it’s own existing regulations.
· Many refinery measures can be added to the plan. The District failed to regulate the dumping of “waste” VOC gases to the atmosphere from Pressure Relief Valves, Flares, wastewater ponds, storage tanks, tank cleaning, vessel depressurization, as well as certain emissions from valves and marine vessels, as well as NOx emissions from refineries and power plants.
Very recently, the BAAQMD has written a letter in response to CBE comments, dismissing these concerns (June 28, 2001 to EPA), and the District has also written a staff report and modifications to the June 2001 Clean Air Plan as recently as June 9. CBE and its members have been involved in commenting on the details of the Clean Air Plan and District rules for almost two decades. Now the District is dismissing our concerns, a couple of weeks before a public hearing on these issues. We feel that these issues require a detailed evaluation with sufficient time for public review. The District has claimed that it is already taking all the actions available to meet Clean Air Act health standards, however, the measures listed above, as well as many other identified in this comment make it clear that there are many feasible measures.
The District has added a flare monitoring measure to the plan, and a vessel depressurization rule. However, the vessel depressurization rule was already present in the 2000 state plan, and so is not really a new proposal, and the District is proposing only a small reduction from this source (0.1 ton per day), which we believe is an underestimation. The flare monitoring proposal is also appreciated, but a previous District plan actually included adoption of controls for flares by 1999, which was never carried out. Monitoring is much needed, but does not accomplish reductions in emissions. The District also has a Low emission Valve rule proposed, but with zero emissions associated with it. In total, the District is proposing a reduction only of 2.0 tons per day in emissions from refineries. Please see our detailed attached comments on all these issues.
4. MOBILE SOURCE CONTROL MEASURES
Several organizations including the Sierra Club and Transdef have suggested numerous feasible transportation control measures. CBE incorporates those comments by reference. The MTC has rejected almost all of these measures without providing any serious analysis or justification. The MTC should analyze these measures fully in an EIR, and adopt all feasible measures.
IV. THE NEGATIVE DECLARATION VIOLATES THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA).
While the BAAQMD in particular has a long history of violating the California Environmental Quality Act (CEQA) by posting illegal negative declarations, CBE has never seen such a blatant violation of CEQA law. CEQA requires that with very limited exceptions, public agencies must prepare an environmental impact report (EIR) for any action that may have any adverse environmental impacts. The EIR must describe the proposed action to the public, analyze its impacts, consider means to mitigate those impacts, and analyze any alternatives to the proposed project. The agency must involve the public in a thorough review of the proposed action, responding to public comments, and considering input and suggestions from the public. In this way, CEQA promotes open government, holds government officials accountable, and ultimately creates a more democratic decision-making process.
Rather than preparing EIR to analyze the impacts of the 2001 Air Plan, mitigation measures for those impacts, and alternative to proposed measures, the agencies have declared that the 2001 Air Plan will have no adverse environmental impacts at all. By posting a negative declaration for the Plan, the agencies have cut off any reasonable public review and comment process, and have violated the fundamental principles of democracy and public involvement embodied in CEQA.
The Air Plan is a massive document, with dozens of pollution control measures, each of which has potential beneficial and adverse environmental impacts. As a minimum it is necessary to provide the public with information about those measures, alternatives to the measures, and means to mitigate any adverse impacts. It is customary for Air Districts to prepare full EIRs in conjunction with the adoption of Air Plans. For example, the SCAQMD prepares a full Environmental Assessment for every Air Plan, and most of the individual measures that it adopts. In their haste to rush through the 2001 Air Plan, the BAAQMD, MTC and ABAG have chosen simply to disregard the law.
Adding insult to injury, the negative declaration prepared for the 2001 Air Plan, is woefully inadequate. The staff report for the plan was not even issued until July 9, 2001, only 9 days prior to the July 18, 2001 hearing. The staff report even makes substantive changes to the Air Plan for the first time. This plainly violates CEQA’s required minimum 21-day public comment period for negative declarations. As if to make a farce of the CEQA process, the negative declaration states that the public should contact BAAQMD staff person Henry Hilken with any questions about the Air Plan. (Negative Declaration page 1) However, when CBE tried to contact Mr. Hilken at the telephone number listed in the Negative Declaration on July 11, 2001, his voice mail message stated that he was on vacation and would not return until after the July 18 public hearing. In addition, the negative declaration refers to documents that do not appear to exist, does not provide support for its calculations, and requires the public to ferret out information from numerous other agencies and entities to make sense of the document. This is in direct contrast to the type of plain language public review document required by CEQA.
The documents even acknowledge that CEQA review will be required for certain of the measures. However, the document states that such CEQA review will occur later. This turns CEQA on its head. CEQA requires an EIR at the earliest possible stage in the process, before the agency commits to a particular course of action. Once the 2001 Air Plan is adopted and approved by US EPA, its measures will become federally enforceable, and the BAAQMD, MTC and ABAG will be required to implement those measures as a matter of federal law. Even if CEQA review later finds that the measures will have adverse impacts, the agencies will be locked into a course requiring their implementation. For this reason, full CEQA review should occur now, prior to adoption of the Air Plan, to ensure that measures adopted will not have unforeseen adverse impacts. Indeed, as discussed below, many of the proposed measures have potential adverse impacts that could be mitigated with proper review.
The BAAQMD has a long and costly history of violating CEQA. In 1992, the Court of Appeals found that the BAAQMD violated CEQA by preparing a negative declaration for a low-VOC paint rule. The Court held that the agency should have prepared a full environmental impact report (EIR) to analyze the rule fully and to consider any adverse impacts of the rule, ways to mitigate those impacts, and alternative to the rule. Dunn-Edward Corp. v. Bay Area Air Quality Management District (1992) 9 Cal. App. 4th 644. Obviously, if a single rule designed to reduce emissions from paint could have adverse impacts sufficient to require CEQA review, then a complete Air Plan with dozens of measures (including a low-VOC paint rule) has potentially many times more significant adverse impacts.
Just a few months ago, in a case brought by CBE, the Superior Court held that the BAAQMD violated CEQA by preparing a negative declaration rather than an EIR when it decided to allow the Valero Refinery in Benicia to avoid installing NOx pollution control equipment. The court also ordered the BAAQMD to pay CBE attorneys’ fees and costs in the amount of over $230,000. Communities for a Better Environment v. BAAQMD, Civil No. 313969. Apparently, these costly rulings were not sufficient to convince the BAAQMD staff that it must comply with the law. Instead, the BAAQMD continues its pattern and practice of violating CEQA by issuing illegal negative declarations when environmental impacts reports are clearly required. If the Board approves of this short-circuiting of the democratic process, CBE will be left with no choice other than to appeal to the courts once again to require the agencies to conduct the proper public process.
D. THERE IS A FAIR ARGUMENT THAT THE PLAN MAY HAVE ADVERSE ENVIRONMENTAL IMPACTS WHICH MUST BE ANALYZED AND MITIGATED IN AN EIR.
There is a fair argument that several of the measures in the 2001 Air Plan, and the entire plan itself, may have adverse environmental impacts that must be analyzed and mitigated in an EIR. CEQA must be interpreted to "afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” Friends of Mammoth v. Bd. of Supervisors, 8 Cal.3d 247, 259 (1972). CEQA provides that the City may issue a Negative Declaration only if "[t]here is no substantial evidence before the agency that the project may have a significant effect on the environment." Public Res. Code section 21080(c)(1). An EIR is required whenever substantial evidence in the record supports a "fair argument that significant impacts may occur.” §21080; Laurel Heights Improvement Assoc. v. Regents of the Univ. of Calif., 6 Cal.4th 1112, 1123 (1993). The "fair argument” standard creates a "low threshold" for requiring preparation of an EIR, Citizens Action to Serve All Students v. Thornley, 222 Cal.App.3d 748 (1990). Because issuing a negative declaration has a terminal effect on the environmental review process, an EIR is necessary to resolve "uncertainty created by conflicting assertions" and to "substitute some degree of factual certainty for tentative opinion and speculation." No Oil, Inc. v. City of Los Angeles, 13 Cal.3d 68, 75 (1975). Therefore, CEQA mandates that the City as lead agency must require the preparation of an environmental impact report (EIR) to fully analyze the nature of those impacts as well as measures to reduce or eliminate those impacts. Quail Botanical Gardens v. City of Encinitas, 29 Cal.App.4th 1597 (1994). An agency’s decision not to require an EIR can be upheld only when there is no credible evidence to the contrary. Sierra Club v. County of Sonoma, 6 Cal.App.4th, 1307, 1318 (1992)
1. THE PLAN AS A WHOLE MAY RESULT IN INCREASES IN BAY AREA OZONE LEVELS.
Measures in the Plan will be Overwhelmed by Projected Growth in the Bay Area, and Associated Growth in Vehicle Miles Travelled.
As set forth in the Declaration of Atmospheric Scientist Schuyler Fishman, attached hereto, according to the 2001 emissions inventory reported in the 2001 OAP, emissions from on-road motor vehicles make up over 45% of all ozone precursors (VOCs and NOx) in the Bay Area. Emissions from passenger cars make up 21% of the ozone precursors in the inventory, almost as much as all the stationary sources within the District’s jurisdiction.
In the 1999 Regional Transportation Plan, the Metropolitan Transport Commission (“MTC”) projects that with the 30% growth in population in the Bay Area, by the year 2020 the total daily person trips will increase by 37% and the average daily vehicle miles traveled will increase by 46% from 1990 levels. Emissions of stationary sources or ozone precursors are not projected to grow at levels anywhere near this rate. As the number of trips made and the number of miles in each trip will increase, so too will the emissions of ozone precursors in the Bay Area.
Yet the 2001 OAP focuses most of it’s control measures on stationary sources (net reductions estimated at 8.2 tons per day (‘tpd”). Mobile source reductions (the largest source category of ozone precursors) are estimated at 4.5 tpd. Although much of these reductions are based on emissions estimates from the new CARB EMFACT 2000 model. The EMFACT model makes several assumptions about the time line for implementation for rules adopted by CARB, and the time line for the turnover of California passenger vehicles from older models to newer more fuel efficient models. These assumptions may be inaccurate, and thus the reductions projected may not be achieved.
The 46% increase in vehicle miles traveled could very easily overwhelm the modest 12.7 tpd reduction in emissions contained in the 2001 Air Plan. Thus, there is a likelihood that the Plan may actually result in an increase in ozone levels throughout the region rather than a decrease.
The District’s own data show increases in peak ozone levels, in population exposure and in area exposure for the most recent 6 year period (91-93 to 97-99 periods)
The 2001 Air Plan may also result in localized increases in ozone pollution. The District begins the plan by calculating the changes in air pollution occurring since the 1986-88 period up until the most recent calculated period of 1997-99 (page 7). The District states “In the period since the passage of the California Clean Air Act, the Bay Area has experienced significant reduction in peak ozone levels. As shown in Table 2, peak concentrations have diminished 1.4 percent per year, on average, since the 1986-88 base period.” However, the District also provided the “Design Values” (a measure of peak pollutant concentrations) for the period of 1991-93, but did not calculate the change in pollution from 91-93 to the most recent period (97-99). When this most recent 6-year period is calculated, it shows an increase of 0.8% on average, rather than a decrease in pollution. (See the table below.) Indeed, the peak levels increased (according to the District’s own numbers) at 12 out of 20 stations over this most recent six year period. The misleading description in the Clean Air Plan of an overall decrease since the earlier period (86-88) takes credit for early successes which are now being reversed and eroded by the more recent increases in pollution. This is not surprising since the number of the District’s adopted control measures have decreased in recent years at the same time that many pollution sources have increased.