Marc Chytilo
P.O. Box 92233 • Santa Barbara, California 93190
Phone: (805) 682-0585 • FAX: (805) 682-2379

Law Office of Marc Chytilo
Environmental Law

November 21, 2001

Mr. Wayne Nastri
Regional Administrator
United States Environmental Protection Agency
Region IX
75 Hawthorne Street
San Francisco, CA 94105-3901

BY FAX AND MAIL (415 947-3528)

RE: Bay Area Motor Vehicle Emissions Budget Adequacy Determination Process

Dear Regional Administrator Nastri:

Congratulations on your recent appointment to the Regional Administrator position. I look forward to working with you in coming years.

This office represents Transportation Solutions Defense and Education Fund (TRANSDEF), a Bay Area community group concerned with transportation, air quality and land use issues. Over the past two years, TRANSDEF has worked closely with your predecessor and other members of the Region IX staff to address the difficult and complex issues surrounding the Bay Area's inability to attain the one hour ozone NAAQS. This letter is also submitted on behalf of Communities for a Better Environment (CBE), another Bay Area organization that has been actively involved in regional air quality and transportation issues with particular emphasis on urban and environmental justice issues.

We submit this letter to express our grave concerns with actions recently taken by Air Division staff regarding the Bay Area Air Quality Management District's 2001 Ozone Attainment Plan. In particular, we believe that staff has prematurely posted the SIP on the website for conformity adequacy review and commenced a public comment period before the State has finished its SIP adoption process, in violation of the Clean Air Act. This failure to observe the proper sequencing and rushing the Bay Area's conformity process prejudices the public's ability to participate in this process and compromises the integrity of EPA's review procedure. Unfortunately, your air program has embarked on a course which seems sure to result in extensive litigation and a worsening of the relationship between the Regional Office and Bay Area community and environmental justice groups. This is particularly troubling since other offices within the Regional Office have been working, at the same time, to initiate a facilitated collaborative process with many of these same groups on air quality and environmental justice issues. We find it difficult to consider collaboration when one of your program offices is fast-tracking a very serious and technically controversial issue in disregard of the public's interest in a fair and open process and our interest in raising a number of technical issues that appear ready to be swept under the rug. We are writing to bring this contradiction to your attention, and to request a meeting with you as soon as possible in order to discuss these issues.

TRANSDEF and a coalition of other community and public health groups active in Bay Area air quality and transportation issues (including Sierra Club, Communities for a Better Environment, Our Children's Earth, Bayview Advocates) have questioned the overall adequacy of the 2001 OAP to timely achieve air quality goals. An important element of the OAP are its Motor Vehicle Emissions Budgets, aka "MVEB". The SIP's MVEB are used to evaluate whether a transportation plan or project conforms with the SIP under the Clean Air Act's § 176.

EPA's conformity regulations and other EPA guidance memoranda purport to allow Regional EPA Offices to determine that a SIP's MVEB are "adequate" prior to EPA's complete review and action on the SIP's overall approvability. See 40 C.F.R. Part 93.118(e); EPA Memorandum, May 14, 1999, Gay MacGregor, OMS to Regional Air Directors (herein 5/14/99 EPA Memo). Once MVEBs are found adequate by EPA, they may be used for conformity determinations for Regional Transportation Plans and projects. Even if EPA subsequently determines the SIP is unapprovable, conformity determinations that are conducted in reliance upon MVEB once deemed "adequate" by EPA remain valid, allowing transportation projects that interfere with the region's progress towards attainment to nevertheless proceed. Thus, there are real-world public health consequences to improperly or prematurely finding a MVEB adequate.

EPA's MVEB adequacy process was adopted in memo form after legal action by Environmental Defense's Bob Yuhnke invalidated relevant aspects of the conformity regulations. EDF v EPA 167 F.3d 641 (D.C. Cir 1999). EPA's guidance was intended to be temporary, lasting for only a short time before being replaced by revised regulations adopted under formal rulemaking processes. 5/14/99 EPA Memo at 1. The Court's decision was announced over 2 1/2 years ago, yet no regulations have been proposed. This leaves the legal status of this process in some doubt, as we believe that the MVEB adequacy action is subject to the Administrative Procedures Act's notice and comment rulemaking requirements. EPA has not clarified its position on that issue since losing the conformity regulations case.

Lack of complete, formal submission from the State

A fundamental element of the MVEB review process is a complete SIP submittal from the State. On November 9th, ARB had not yet formally submitted the complete SIP, and has not to this day. CARB modified the BAAQMD Ozone Attainment Plan in three respects by motion of the Board, and we have not seen the specific language or how those modifications are integrated into the SIP. Nor do we have the benefit of EPA's determination of SIP completeness. The uncertainty in defining the precise SIP contents complicates our timely development of comments on the MVEBs' adequacy. The conformity regulations clearly establish that the content of the SIP and its consistency with relevant emissions inventories, including the MVEB, as criteria for MVEB adequacy. 40 C.F.R. Part 93.118(4). We believe it is simply unfair to impose the extremely short 30 day comment period upon the public while failing to provide all of the relevant information necessary for the development of those comments.

Failure of Notification system

Attached to this letter (Exhibits 1-3) are a series of emails that I sent to the email address posted on the EPA conformity web site ( requesting to be
notified when the Bay Area MVEB adequacy determination was posted in accordance with the directions on EPA's website. My email request was repeatedly returned as undeliverable. It is unclear whether this request ever got through to EPA, except by a email directed to EPA staffmember Mark Brucker.

Delayed notification of interested parties

Although the MVEB was reportedly posted on Friday November 9 (Exhibit 4), TRANSDEF and other members of the public were not notified until November 13. See Exhibit 5. EPA's delay prejudiced TRANSDEF's ability to comment.

While the MVEB adequacy procedures actually allow up to 45 days from the date of posting (when someone requests a copy of the SIP, adding 15 days to the comment period), even this extended period is very short given the complexity of the issues involved. As you may know, there is a sizable coalition of community groups working on Bay Area air quality issues, and the preparation of materials, review of drafts, and client orientation and decisionmaking processes all take considerable time. This matter is complicated by the holidays. Even 45 days is not enough time to complete our analysis, draft comments and secure authorization, and thus an extension to 90 days following complete SIP submittal is requested.

We should remind you that many communities in the Bay Area that are very concerned about air quality issues lack ready access to the web. The systematic exclusion of communities of color in air quality and transportation planning processes has led to several environmental justice complaints against various state and local agencies, including a complaint brought by TRANSDEF to EPA. The MVEB posting and notification process is both legally flawed and unjust. We implore that you put a halt to these inappropriate practices.

Parallel processing is inappropriate

TRANSDEF and the public got a shock when the MVEB adequacy posting notice indicated that EPA would pursue "parallel processing". This unusual species of SIP promulgation is employed when EPA and the State work closely in defining an adequate SIP submittal and is announced early in that process. See, for example, the Houston/Galveston Notice of Proposed Rulemaking, 66 Fed. Reg. 36656, 36657/2-3, where the State requested parallel processing as part of its submittal. Here, the State has not yet submitted its transmittal and there is not request for parallel processing on the record. Where parallel processing was employed, it has never been used to short-circuit the public comment and participation process. This would be an inappropriate extension of this administrative vehicle to actually impair the public's ability to participate in agency decisionmaking.

EMFAC 2000

The District and ARB have relied upon the mobile sources emissions factors in the newest version of EMFAC, EMFAC 2000. This is the very first use of this model in a SIP submitted to EPA. EMFAC 2000 made statistically huge changes in the mobile sources emissions inventory profile that has not been the subject of any type of federal review process. These changes overshadow any emissions reductions that are accomplished by the Plan, and are stated as the reason, without technical justification, that the NOx MVEB in question is larger in the future, not smaller as is anticipated by the Act's conformity process. We question whether it is appropriate to find the MVEB adequate before the acceptability of the underlying assumptions is subject to notice and comment rulemaking.

EPA should act on MVEB adequacy at the same time as SIP adequacy

TRANSDEF requests that EPA suspend the impending action on the MVEB adequacy, and instead evaluate the MVEB as part of the SIP adequacy, as was done in Houston/Galveston. 66 Fed. Reg. 36666/1-2. This process will allow a more complete development of the complex and interrelated issues of SIP and MVEB adequacy that are particularly heightened in the case of the Bay Area, where an attainment demonstration was not available and control strategies were left conditional and undefined. This overcomes our Administrative Procedures Act issues as well.

The District's haste in developing this SIP has sought to avoid a conformity lapse that will occur on January 21, 2002. In light of Judge Henderson's order on a motion for summary judgment finding that TCM # 2 has not been implemented, the District cannot avoid a lapse until it adequately funds this effort. 40 C.F.R. Part 93.113; Bayview Hunters Point Community Advocates and TRANSDEF et al, v Metropolitan Transportation Commission N.D. Cal. No. CO1-0750 TEH, Order, dated November 9, 2001. There is no need for the haste, and considerable legal risk from proceeding. Further, EPA's credibility and reputation for adequately considering the interests of the community in its actions is jeopardized by the pending course of action. Exposure to air pollution in the Bay Area disproportionally affects low income communities and communities of color, as does the preferential funding of highways and suburban transit systems to the detriment of urban transit systems. The Plan which EPA is rushing to find adequacy on without proper public review supports increased mobile source pollution and decreased service and protection for communities... As you know, a number of environmental justice complaints have been filed alleging these disproportionate effects.

Request for meeting

To further explain our concerns about the MVEB adequacy determination process and introduce you to the larger issues surrounding the Bay Area's air quality problems, we request an opportunity to meet with you and key Air Division staffpeople in the immediate future.

We appreciate your consideration of our views and concerns on this topic, and trust that you will value the public's health appropriately in all actions concerning the Bay Area's difficult air pollution problems.


Marc Chytilo
Counsel, Transportation Solutions Defense and Education Fund

Richard Drury, Esq.
Communities for a Better Environment

CC: Jack Broadbent
Cece Bloomfield
Steve Barhite
Leslie Rogers, FTA
Rhonda Reed, DOT OCR
Tom Boren, EPA OCR