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

FAX: 415-928-8560

Chairperson Sharon J. Brown and MTC Commissioners

Metropolitan Transportation Commission (MTC)

101 Eighth Street

Oakland, CA 94607

FAX: 510-464-7848

Supervisor Bill Carroll, President

Association of Bay Area Governments (ABAG)

101 Eighth Street

Oakland, CA 94607

FAX: 510-464-7970

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.



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. Footnote


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. Footnote 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 Footnote , these same children struggling with a life-long health affliction are also being denied the same level of education as healthy children. Footnote


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. Footnote


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 Footnote ; 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)



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.


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. Footnote 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 Footnote :


·   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.




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)




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).




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.




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.



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.


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.



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.


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.



            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)



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.



Ozone Design Value (DV) Estimates Increased -- 1991/93 to 1997/99










Design Value Estimate


Annual % DV change






91-93 to 97-99


San Francisco












Redwood City












San Rafael






Santa Rosa
























San Jose






Mountain View












Los Gatos






Alum Rock


















Bethel Island





























Average Increase

in air pollution







The District also calculated changes in population exposure, which is a measure of the pollution levels people are exposed to, and the number of hours of exposure per capita (above 9.5 pphm). The District states: “Since the 1986-88 base period, population exposure to unhealthy levels of ozone has been reduced by 70 percent as a weighted average for the region.” Again, the District failed to provide the calculations for changes in population exposure from the more recent period from 91-93 to the 97-99 period. When calculated, these again, show a large increase of 22.6% on average in the population exposure, not a decrease, over the most recent period. The District state that it: “continues to exceed the 50% reduction target” of the state Clean Air Act. This is at best misleading and certainly a poor guide for planning. Bay Area pollution levels, according to the District’s own numbers are increasing, and past successes are being wiped out. 7 of 9 counties experienced increases, 1 was unchanged, and only 1 had a decrease during this most recent period. Moreover, four counties’ population exposure reached levels that equalled or actually exceeded even the earlier high 86-88 levels. (See District’s Clean Air Plan Table 3, page 9.)


Population Exposure to Ozone Increased-- 1991/93 to 1997/99









Per Capita Exposure

(person-pphm-hours > 9.5 pphm/total population)

Percent Change






91-93 to 97-99








Contra Costa


















San Francisco






San Mateo






Santa Clara


















Bay Area Weighted Average





Average Increase

in Population exposure


The same problem existed for area-weighted exposure, a measure of the spread of air pollution over geographic areas. Again, the District neglected to provide numbers calculating the most recent period, which when calculated shows an increase in the area-weighted exposure, on average of about 22%.


Area-Weighted Exposure to Ozone Increased -- 1991/93 to 1997/99









Area-Weighted Exposure

(square km-pphm-hours > 9.5 pphm per square km)

Percent Change






91-93 to 97-99








Contra Costa


















San Francisco






San Mateo






Santa Clara


















Bay Area Weighted Average





Average Increase

in Area-weighted exposure


Six of 9 counties’ area-weighted exposure increased, and three decreased. By all three measures (peak ozone levels, population exposure, and area exposure) provided by the District in the Clean Air plan, if the most recent six year period is calculated, levels of Bay Area air pollution are shown to increase.


            Thus, the project description and environmental setting description are fundamentally inaccurate. The Air District’s projections of ozone decreases have consistently been inaccurate. There is certainly a fair argument that the 2001 Air Plan, like the plans that preceded it, may result in actual increases in ozone pollution in the Bay Area, or at least in many regions of the Bay Area, especially in light of projected growth in the region. An EIR would fully analyze these regional and localized impacts, and propose ways to mitigate the impacts.






Atmospheric scientist Schuyler Fishman explains in her attached declaration that the MTC’s proposal to abandon implementation of Transportation Control Measure 2 (TCM 2), may have significant adverse environmental impacts. TCM 2 requires the MTC to increase public transit ridership by 15% from 1983 levels. Despite a 30% growth in population since 1983, transit ridership has increased by only 3.63%. Thus, the EPA refused to allow MTC to remove TCM 2 from the Air Plan. In response, MTC now states that while the measure will remain in the Plan, it is “outdated,” and the agency will take no further action to implement the measure. In addition to being plainly illegal, MTC’s proposed action will result in significant adverse impacts.


 One clear and proven way to reduce emissions from passenger vehicles is to decrease the numbers of commuters driving cars and increase the ridership of public transit high occupancy vehicles like busses, commuter rail, BART, etc. This would reduce the total vehicle miles traveled and thus the total emissions of ozone precursors.


According to the 1982 and 1991 CAP, TCM 2 would “adopt ridership increase targets for the period 1983 through 1987.” In 1982 the target increase was set at a 15% increase. Emission reductions from TCM-2 were estimated in 1982 to be 0.72 tpd of VOCs and 1.04 tpd of NOx. Note that these values are larger than the promised reductions from the all four proposed TCMs included in the 2001 OAP.


MTC has failed to increase ridership by 15% from 1983 levels. According to data provided by the MTC’s website, (www.mtc.ca.gov), and data reported in the 2001 OAP, ridership has increased only 3.63% from 1982 levels. In fact, ridership decreased 5% between 1992 and 1995 (see Figure 1 below). While the 2001 OAP states that this TCM is not included in the plan because it is outdated and has been implemented to the extent possible, there are many potential TCM measures considered in Section I: Review of Section 108(f) Measures from the Clean Air Act which starts on page 69 of the 2001 OAP, that would help MTC obtain these levels.


By omitting TCM-2 and thus erasing any commitment to increase the use of public transportation, the 2001 OAP would allow for a potential loss in ridership and a corresponding increase in vehicle miles traveled. Omitting TCM-2 could contribute to an increase in emissions from passenger vehicles, thus potentially increasing emissions of ozone precursors and threatening the ability of this plan to conform to Federal ozone standards.




Even though the criteria set for TCM-2 has clearly not been achieved, the OAP claims to have included reductions from this measure in the baseline. We cannot find specific reference to how much credit has been taken in the baseline. It is also problematic that the 2001 OAP still lists the potential emissions reductions from TCM-2 as be 0.72 tpd of VOCs and 1.04 tpd of NOx. These estimates were generated in 1982, and according to the 1991 Clean Air Plan Environmental Impact Report, were based on a percentage of vehicle miles traveled and total daily vehicle trips for 1982. Because these numbers have increased by more than 40% since 1982, clearly the emissions reduction estimates are incorrect.  

The 2001 OAP states that the measure is outdated, however, that is no reason to end the commitment to obtain at 15% increase in ridership. Especially because these numbers do not even account for the 30% increase in population. There is a clear need for a full environmental impact study to assess the updated potential for TCM-2 to provide real and attainable reductions in emissions of ozone precursors.


For example, assuming that MTC could reach the 15% increase by 2006. This would result in additional 35.5 million annual transit boardings, which is equivalent to additional 97,000 daily trips. The documentation from MTC, CARB, or Association of Bay Area Governments (ABAG), lacks any detailed description of what assumptions and calculations were made to calculate the original reductions from TCM-2. However, assuming that only 80% of these additional transit boardings account for a reduction in passenger vehicle trips, TCM-2 could potentially represent a 0.47% reduction in daily passenger vehicle trips. According to a model run from EMFACT2000’s BURDEN model, this would reduce emissions by 0.49 tpd NOx and 0.62 tpd of VOCs. Compare these numbers to the 0.7 tpd NOx and 0.5 tpd VOC reductions promised by all the reductions promised from all the new TCMs in the 2001 OAP (refer to Table 1 below). These emissions reduction are significant enough to justify a full EIR to assess the impact of omitting TCM-2 from the 2001 OAP.


Table 1. Estimates of Changes in Emissions Inventory for proposed TCMs







Percent Change in Daily Vehicle Trips from 20003

Tons per Day

% of total emissions from on-road passenger vehicles (2006)

Tons per Day

% of total emissions from on-road passenger vehicles (2006)

With TCM 2






(15% increase in ridership fully attained)1






Without TCM 2






(Returning to 1982 ridership levels)2






Proposed reductions from all TCMs (A-D)

unknown (not reported in 2001 OAP)





2001 Inventory emissions from passenger vehicles






2006 Inventory from passenger vehicles

unknown (not reported in 2001 OAP)





1. Assuming that for each additional daily boarding of public transit corresponds to a 0.8 reduction in daily passenger vehicle trips.

2. Assuming that for every daily boarding of public transit lost corresponds only to a 0.8 increase in daily passenger vehicle trips.

3. As reported by MTC in the 2001 OAP.


If TCM-2 is omitted and public transit ridership declined to 1982 levels then this could result in a significant increase in emissions from passenger vehicles. According to the EMFAC 2000 model run and a similar calculation as reported above, this could result in an additional 0.22 tpd VOCs (440 pounds per day) and 0.18 tpd NOx (360 pounds per day) from vehicle trips. (see Table 1 below) The District’s significance threshold for a full review under the California Environmental Quality Act (“CEQA”) is 80 lbs./day for both VOC’s and NOx.




TCM A will add 90 new commuter busses to the Bay Area. While this measure could contribute to an overall increase in ridership, it may also expose any sensitive receptors to a significant level of substantial air pollutant concentrations. It is likely that these will be diesel buses, which may have a potential adverse impact on human health.


The EPA and ARB have listed Diesel exhaust as a toxic air contaminant. According to the ARB, Diesel exhaust is a complex mixture of gases and fine particles emitted by a diesel-fueled internal combustion engine. Diesel exhaust includes over 40 substances that are listed by the United States Environmental Protection Agency (U.S. EPA) as hazardous air pollutants and by the ARB as toxic air contaminants. The International Agency for Research on Cancer (“IARC”) lists fifteen of these substances as carcinogenic to humans, or as a probable or possible human carcinogen.


Diesel exhaust has non-cancerous effects as well. In occupational and epidemiological studies diesel exhaust has been shown to affect normal lung function, aggravate pre-existing conditions, and cause respiratory irritation.


Assuming that these busses were to represent the average fleet that is currently in service a significant increase in precursor emissions and emissions of toxic air contaminant could result from TCM A. After running EMFAC2000, I found that diesel emissions from TCM A could contribute 0.30 tpd NOx (600 pounds per day), 0.01 tpd VOCs, and 5.25 lbs./day PM10 to Bay Area air pollution. These numbers are significant according to the District's own CEQA criteria.


It is unclear if the additional emission from TCM A are included in the 2001 OAP transportation budget. If they are not, then the budget needs to be modified or it will potentially not be met.


If TCM A required MTC to adopt natural gas vehicles, electric, or low emissions vehicles it would potentially increase public transit ridership, while not risking significant increases in emissions of ozone precursors or hazardous air pollutants. Natural gas buses are a feasible alternative to diesel gas busses that are currently in use in many major metropolitan areas in the U.S. including the Bay Area.


In fact, the MTC and BAAQMD rejected a measure adopted by the SCAQMD that requires large diesel fleets to purchase only clean vehicles such as natural gas. Without a binding legal requirement such as that adopted by the SCAQMD, it is possible that the 90 new buses discussed in the plan may run on old dirty diesel technology. If so, emissions would be several times higher than stated in the 2001 OAP staff report and negative declaration.


c.         The Proposal to Eliminate TCM 11, 12, and 16 May Have a Significant Adverse Impact.


As discussed above, the MTC is proposing to eliminate TCM 12, 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.


MTC is also proposing to eliminate TCM 16, which 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 requirement 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)


            MTC proposes to eliminate TCM 11, which establishes a “Gasoline Conservation Awareness Program (GasCAP). GasCAP 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. Eliminating the program will result in an increase in VOC and NOx emissions.


d.        Coatings and Solvents rules may cause significant impacts, and need to be analyzed in an EIR


While CBE supports low-VOC coatings and solvents rules, the District failed to assess in its negative declaration, the potential environmental impacts that could occur from adoption of three coatings and solvents measures (SS-11, 13, and 14 Architectural Coatings, Metal Parts, and Aqueous Solvents rules respectively). The District also failed to clearly describe the measures in the plan, putting the associated benefit from air pollution reductions into question.


When precursor VOCs are removed from solvent and coating formulations in general, it has been CBE’s experience Footnote in many different regulatory fora during the last decade or two that government agencies frequently allow manufacturers to replace at least some portion of regulated substances such as smog precursors with compounds that cause other environmental harm, for example introducing greenhouse gases and ozone depletors with extremely long atmospheric lifetimes (in the hundreds to thousands of years), toxic brominated hormone disruptor compounds replacing chlorinated compounds, replacement of precursor VOCs with glycol ethers (reproductive toxins), and introduction of a large variety of untested or poorly tested compounds with the potential to cause a variety of significant impacts. Historically, there has been an unfortunate shell-game played when new regulations come into effect, where unregulated or poorly controlled harmful substances are introduced as replacements for regulated substances.


For example, ozone depleting solvents were introduced as substitutes for smog precursors, and later banned because of destruction of the ozone layer. The ozone depletors were often replaced with greenhouse gases. Carcinogens were introduced, and replaced with reproductive toxins such as glycol ethers, which have been associated with miscarriages during their use in Silicon Valley. Chlorinated compounds associated with cancer, reproductive harm, and immune system damage because they mimic human hormones are being replaced with brominated compounds for which there is evidence that they cause the same effects as chlorinated compounds.


The District agrees in its statements that such impacts can occur, but states in the negative declaration that it will solve this kind of through implementation of its toxics and ozone depletion policy review processes in the future. While the District policies are important, they do not preclude the introduction of new substances which can cause environmental impacts from being introduced into newly formulated solvents and coatings. The District policies are not comprehensive and do not take the place of an environmental assessment of impacts which could occur from specific rules proposed. These impacts are potentially very significant and must be assessed, as well as the impacts which the District identified but did not assess (such as water-quality impacts from illegal dumping of contaminated aqueous-based formulations into the sewer system, and increased NOx emissions). In fact, the District’s toxics inventory reports show that large amounts of air toxics are released in the Bay Area, despite the District’s rules, regulations, and policies on toxics, to the tune of eight million, two-hundred four thousand (8,204,400) pounds per year according to the BAAQMD’s own 1999 Toxic Air Contaminant annual report. These toxic emissions certainly have many significant health and environmental impacts, and the chemicals emitted are known to exacerbate asthma, cause cancer, reproductive toxicity, neurological harm, hormone disruption, immune system harm, harm aquatic wildlife, and cause many other significant health and environmental impacts.


            It is inappropriate that the District leave the environmental assessment of these rules to the future through its separate policy review or rule or regulation process. CEQA requires that the actual environmental impacts be assessed before the approval of a project (like the Clean Air Plan), and nowhere states exemptions from this assessment based on whether a regulatory agency intends in the future to assess impacts through its rules, regulations and policies. If that were the case, CEQA might as well not exist. As one court has held, “the [lead agency] cannot rely on post-approval mitigation measures adopted during the subsequent design review process. . . . there cannot be meaningful scrutiny of a mitigated negative declaration when the mitigation measures are not set forth at the time of project approval.” Quail Botanical Gardens, 29 Cal.App.4th at 1605, fn. 4; Oro Fino Gold Mining Corp v. El Dorado, (1990) 225 Cal.App.3d 872, 884-885.


The District did recognize that substitute solvents could be toxic and could harm workers or the exposed public, but only briefly mentioned this in the negative declaration with regard to SS-11 (Architectural Coatings) and SS-13 (Metal Parts), but not regarding SS-14 (Aqueous Solvents). The negative declaration left it to District policy on toxics and ozone depletion to take care of the potential problems. However, one court case found that the District’s good intentions for future action were not sufficient to replace actual environmental impact assessment required by CEQA. Dunn-Edwards Corp. v. Bay Area Air Quality Management District (1992) 9 Cal. App. 4th 644, which is quoted below in the discussion on architectural coatings.


EPA, the armed services, other government agencies, and the BAAQMD have recognized the importance of evaluation of environmental impacts of substitution of solvents, because of the introduction of new and different impacts when solvents causing one environmental problem is phased out. This has happened during the phase-out of VOCs causing both ozone formation and ozone depletion. EPA found:


“EPA is aware of a general trend in industry to reduce or eliminate use of halogenated solvent cleaning systems. In addition, EPA knows that many firms now use or may soon begin using aqueous (water-based) and semi-aqueous (partially water-based) cleaning processes.

While use of these chemicals generally will be better for the environment, the chemicals can still be of concern when released to water. EPA hopes this guide will help minimize such adverse effects, and also focus solvent selection on a thorough consideration of costs, health effects, and effectiveness, as well as the persistence and ecotoxicity factors which are the focus of this guide.” (Aqueous and Semi-Aqueous Solvent Chemicals: Environmentally Preferrable Choices, U.S EPA Office of Pollution Prevention and Toxics, EPA-743-B-96-001, September 1996, attached)


EPA’s associated “Aqueous and Semi-Aqueous Solvent Chemicals: Environmentally Preferable Choices, Wall Chart,” (attached) lists over 40 such substitute chemicals and identifies environmental impacts associated with them, which vary between low, moderate, and high, with different levels of environmental persistence.

In fact, EPA and other agencies provide extensive software and databases in order to provide information on the multitude of substitute solvents available, which change over time, their environmental impacts, and their effectiveness in particular applications. See the attached “Solvent Substitution Data Systems,” which lays out a large variety of databases and environmental assessment software available specifically for the evaluation of reformulation of solvents and coatings, which has been developed in order to prevent this pollution.

An EIR would analyze these impacts, and propose feasible mitigation measures or alternatives, such as an enforceable requirement that aqueous solvents and coatings not include toxic chemicals.

Aqueous Solvents:


First, it is difficult to ascertain exactly what the District is planning to adopt under this measure (SS-14). The proposed plan (page 43) provides a section entitled “Description” for this control measure, but fails to clearly describe the proposed measure. This section describes the current BAAQMD, South Coast, and San Joaquin Valley regulations and compares them. It explains that the existing BAAQMD rule has already produced some emission reductions that would come from adopting the South Coast rule, but says that some further reductions could come from adopting it. It describes differences between the many types of industry found in the Bay Area and in the San Joaquin Valley. Finally it states “This measure would require Bay Area adoption of general cleaning requirements like those in the SJVUAPCD rule and specialty cleaning requirements like those in the SCAQMD rule.”


This description is extremely vague (especially the terms “general cleaning requirements” or “requirements like those”). The description also states that the BAAQMD has already achieved reductions included in parts of the rules from other Districts, and that other parts of these Districts’ rules wouldn’t apply at all to the Bay Area. However, the particulars of which parts of the rules would apply and which parts the District would adopt is very unclear. In fact, it is not even clear to which San Joaquin or South Coast rules the District is referring. When we reviewed the rules for those Districts, there were different regulations which the BAAQMD could be referring to in its statements about adoption of some portions of those Districts’ solvents rules. However, there were no rules for either of these Districts entitled “Aqueous Solvents.”


It is consequently extremely unclear what the District is planning, unclear whether the District would be able to achieve 3.0 tons per day in emissions reductions from this source, and unclear what the potential environmental impacts could be of adoption of this measure. In fact, some of these provisions could actually constitute a relaxation of District regulations, which has happened before at the BAAQMD. The aqueous measure proposed by the District constitutes the largest reduction in emissions from any stationary source control proposed by the District in the new plan. Consequently it is especially important that the plan be clear and specific and achievable, and that the environmental consequences of adoption be evaluated. The District has adopted rules into its plans in the past, and then later decided that it couldn’t meet the amount of reductions it had included in the plan. The public needs to be assured that the quantity of reductions for measures in the plan be accurately, and should not be burdened with having to ferret out the information defining the District’s plans. This vague and ambiguous project description violates both CEQA’s requirement for a clear and accurate project description Footnote , and the federal Clean Air Act’s requirement for clear and enforceable control measures Footnote .


The District admits that environmental impacts could occur from the adoption of this rule: “This measure has some potential to increase water quality impacts if users of aqueous cleaners are more likely than users of organic solvent cleaners to illegally discharge spent solutions into wastewater systems.” (page 43) However, no mention of this issue is made in the negative declaration, nor does the District evaluate the environmental impacts which could occur as a result of this rule in the negative declaration, which is at odds with the statement in the plan.


Another rule in the ’99 federal plan also deals with aqueous solvents --SS-04: Low VOC Solvent, Cold Solvent Cleaners. It appears that this may be just a different name for the Aqueous Solvents rule. It is essential that the differences between these rules be clarified so that it is known that the newly proposed aqueous solvents rule is not double counting a rule already accounted for in the ’99 SIP. In fact, aqueous solvents and environmental impacts associated with their regulation are specifically discussed in the Low VOC solvent rule in the’99 plan as follows:


“Other Impacts: The increased use of aqueous solvents could have adverse water quality impacts if not recycled or disposed of properly, however, water quality restrictions apply to prevent such impacts. Used aqueous solutions will have to be treated as hazardous waste. A negligible increase in NOx emissions is anticipated due to increased electrical usage to heat aqueous systems.” (page 38)


An EIR must be prepared to analyze such adverse impacts, and to propose feasible means to mitigate those impacts.


Architectural Coatings


Our comments above on the potential impacts of regulation of solvents and coatings operations apply here also. The District should provide a focused environmental assessment for this measure. The District stated in the negative declaration that the ARB has done a Program environmental assessment on the impacts of architectural coatings. However, the ARB assessment specifically states that each District must make a separate determination of what is necessary to meet CEQA requirements if adopting the ARB SCM for architectural coatings, and that the ARB Program assessment is simply available to the District if applicable. We believe that the District must present the environmental assessment information provided by the ARB, and must evaluate the regulation as it applies to the conditions in the Bay Area. As stated by the District under the “Description” for measure SS-14, the specific industries present in different Districts vary. This in itself could affect the environmental impacts associated with the architectural coatings rule.


The negative declaration admits that environmental impacts could occur as a result of these measures:


“Implementation of control measures SS11 and SS13 could force manufacturers to reformulate certain coatings and surface preparation agents in order to comply with lower VOC limits. In order to meet the lower VOC limits, manufacturers may reformulate applicable coatings, substituting regulated solvents with non-precursor, or “exempt” solvents. Some substitute solvents, such as 1,1,1-trichloroethane, are toxic. This could result in workers or the public being exposed to toxic air contaminants.”


The negative declaration goes on to state that the BAAQMD’s Stratospheric Ozone Policy dictates that District rules won’t promote use of ozone depletors or toxics as substitute solvents. Again, while important policies, they do not preclude the substitution of all toxic solvents, and do not replace an environmental assessment of impacts which could occur, as described above.


In addition to impacts which could occur from the substitution of harmful substances for VOCs caused by the District proposed measures, manufacturers have presented evidence that additional adverse impacts could occur from District regulation of Architectural Coatings. Based on this evidence, when the BAAQMD last tried to adopt a low-VOC paint rule, the Court found that an EIR was required. It is quite amazing that the BAAQMD now proposes to ignore the ruling of the Court and once again proceed on a negative declaration rather than preparing an EIR. The court found in the Dunn-Edwards case as follows:


“Plaintiffs presented evidence of several adverse impacts which would result from the amended regulations: 1) Because of the lower quality of products under the amended regulations, users must apply more primers, sealers, and undercoats to insure proper adhesion. 2) Because the solvent-borne coatings are difficult to handle and apply, users add solvent thinners to factory-prepared coatings. 3) Due to the fact that some newly mandated products produce a thicker film, more product is required to cover the same area. 4) It is necessary to apply more coats of the new products than of the old because the new products do not hide as well as the traditional products. 5) Many coating applications have to be redone due to the low quality of the new products. 6) Since the new products have impared durability, painting applications deteriorate sooner and have to be redone more frequently. In sum, there is evidence that the new regulations require lower quality products. As a result, more product will be used, which will lead to a net increase in VOC emissions.” Dunn-Edwards Corp. v. Bay Area Air Quality Management District (1992) 9 Cal. App. 4th 644


The court found that this was substantial evidence that significant environmental impacts could occur because of the District’s coating regulation. The District is in custody of this evidence, and we incorporate it reference to this case into our comments. The District mentioned this case but dismissed these issues without providing an evaluation related to the Bay Area.


It is also CBE’s experience based on research with professional painters and contractors using paints and coatings that early on in regulation of these items, primitive and incomplete reformulation resulted in poor quality materials, before manufacturers develop more experience with developing better quality reformulation. Many professional users of paints and coatings added high-VOC or toxic thinners to avoid clogging of spray coating equipment, or to improve coatings with respect to atmospheric conditions at the time (such as humidity or atmospheric pressure). These practices also result in the significant increase of VOCs to the atmosphere.


            The Metal Parts Coating Rule (8-19, SS-13) may have many of the same impacts as discussed above, since it also involve the substitution of solvents and coating for VOCs. An EIR would analyze the most environmental beneficial alternatives and require their usage.




            The negative declaration repeatedly admits that the 2001 Air Plan will have significant impacts, but then states that those impacts will be analyzed at a later time in separate CEQA documents. Of course, this process turns CEQA on its head. CEQA review is supposed to occur at the earliest possible stage in the process before the agency commits to a particular course of action. Even if certain elements of the Air Plan are later analyzed, by that time, the elements will already have been adopted, and will be required as a matter of federal law. By acknowledging that CEQA review will be required later, the agencies essentially admit that such review should occur now.


             CEQA mandates "that environmental considerations do not become submerged by chopping a large project into many little ones -- each with a minimal potential impact on the environment -- which cumulatively may have disastrous consequences." Bozung, 13 Cal.3d 263, 283-84 (1975); City of Santee v. County of San Diego, 214 Cal.App.3d 1438, 1452 (1989). Before undertaking a project, the lead agency must assess the environmental impacts of all reasonably foreseeable phases of a project. Laurel Heights Improvement Assoc. v. Regents of the Univ. of Calif., 47 Cal.3d 376, 396-97, 253 Cal.Rptr. 426 (1988) (EIR held inadequate for failure to assess impacts of second phase of pharmacy school's occupancy of a new medical research facility.) A public agency may not segment a large project into two or more smaller projects in order to mask serious environmental consequences. Id. CEQA prohibits such a "piecemeal" approach. Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 692, 720, 270 Cal.Rptr. 650 (1990).


            For example, the negative declaration states that the MTC is currently preparing an EIR to analyze “the programs proposed as TCMs in this 2001 Plan.” (Negative Declaration at p.7) Obviously, it is absurd for the agencies to adopt those very measures on July 18, 2001, when the EIR studying those measures has not even been prepared or circulated for review. In fact, if the agencies adopt the 2001 Air Plan on July 18, that action will render the forthcoming EIR process meaningless.


            Similarly, the negative declaration admits that as a result of implementation proposed measures 221 and 2213 (low-VOC paints and solvents), “some exempt solvents may contribute to depletion of stratospheric ozone and/or contribute to global warming. Some exempt solvents also may be toxic air contaminants,” (Neg. Dec. p.22) and “could result in workers or the public being exposed to toxic air contaminants.” (Neg. Dec. p.26) Such impacts must be reviewed in an EIR, and feasible alternatives and mitigation measures to reduce such impacts must be required.


            At several locations the negative declaration admits that TCM B and TCM C may result in major construction projects that “could potentially impact sensitive habitats, riparian areas, or wetlands,” (p.24) “could potentially impact historical or archaeological resources,” (p.25) “could potentially expose users to risk or earthquake, liquifaction or landslide, or be built on soils that are unstable or expansive,” (p.25) and/or “could be located in undeveloped or lightly developed areas,” (p.29). In each instance, the agencies propose to delay analysis of the admitted impact to a later time on a piecemeal basis, stating, “as specific projects are proposed for funding, MTC and Caltans require that project sponsors comply with environmental review processes in CEQA and NEPA. Project sponsors commit to mitigation measures, including measures to project sensitive habitats and wildlife areas . . . at the time of certification of environmental documentation for specific projects.” (p.24)


            Obviously, this illegally delays necessary CEQA review to a later time. Rather than preparing a program EIR or tiered EIR, the BAAQMD/MTC/ABAG simply ignore the EIR requirement altogether, plainly violating the requirement of CEQA review at the earliest possible stage in the process. Also, the agencies are asking the public to take on faith that adequate mitigation measures will materialize in the future to address the acknowledged significant impacts. As the Court recognized in Sundstrom v. County of Mendocino, 202 Cal.App.3d 296 (1988), the imaginary mitigation measures can always be imagined to be perfect, and reliance on such measures would render CEQA meaningless. By deferring to a later time the development of measures to reduce the project's impacts on air quality and public health and safety, the agencies are avoiding their responsibility to consider those impacts prior to project approval.


            Finally, the negative declaration relies heavily on an EIR prepared in 1991. In justifying its reliance on the 10 year old document, the negative declaration makes the incredible statement that “the Bay Area’s environmental setting, with respect to air quality, has not changed significantly since 1991.” (p.7) This statement is at once ridiculous and pathetic. It is ridiculous because the population of the Bay Area has increased by 14% since 1991, with a concomitant increase in vehicle miles traveled, and other population-related pollution. The statement is pathetic because to the extent that ozone concentrations are still similar to 1991 levels, this is testament to the Air District’s failure to exercise its duty to clean the air. Clearly the reliance on this old document is misplaced, and at the very least such a fallacious environmental setting discussion is legally inadequate.



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In short, the 2001 Air Plan is a tremendously important document that will set the course of air quality management in the region for years to come. If the BAAQMD, MTC and ABAG take the necessary time to develop an aggressive Air Plan, the Bay Area can at long last reach attainment of federal clean air standards. Unfortunately, the document currently before the boards will not achieve that elusive goal. At the very least a decision of this magnitude deserves the full democratic public review and comment process required by the California Environmental Quality Act and the federal Clean Air Act. The agency staffs’ decision to short-circuit this process with a negative declaration deprives the public and the agency board members of the information necessary to perform a meaningful analysis of the Air Plan. We urge the Board members will reject this inadequate and illegal Air Plan and its negative declaration.


Thank you for your attention to these important matters.







Richard Toshiyuki Drury                            Julia May

Legal Director                                               Lead Scientist