January 7, 2002

Mr. Wayne Nastri 
Regional Administrator
United States EPA, Region IX
75 Hawthorne Street
San Francisco, California 94105
Fax: 415-947-3588

Mr. Jack Broadbent                                        
Director, Air Division
United States Environmental Protection Agency
Region IX
75 Hawthorne Street
San Francisco, CA 94105-3901
Fax: 415-947-3579

Re: CBE Comments On EPA Posting of MVEB
Dear Mr. Nastri and Mr. Broadbent,
Communities for a Better Environment (“CBE”) is a non-profit community based environmental justice organization working with low-income communities of color in California. We recently learned about the U.S. EPA’s intention to approve the Motor Vehicle Emission Budget (“MVEB”) as proposed in the Revised 2001 San Francisco Bay Area Ozone Attainment Plan for the 1-Hour National Ozone Standard (“Attainment Plan”). For the following reasons, CBE urges the EPA to reject the proposed MVEB.
As the EPA is aware, the MVEB provides the upper limit on the amount of motor vehicle emissions in the Bay Area to remain on course to achieving attainment of federal Clean Air Act standards. The MVEB, in conjunction with stationary source controls detailed in the plan, guide the emission control strategies needed to achieve the 1-Hour National Ozone Standard. This means that the mobile source emissions budget and the stationary source emissions budget are interdependent for timely attainment of the national ozone standard. If either category cannot provide the planned emission reductions, the other category must be modified to make up for that failure, otherwise timely attainment of federal Clean Air Act standards will not occur.
Because of the inherent connection between the MVEB and the stationary source planning assumptions, CBE is concerned with the indirect implications that would result from EPA’s approval of the MVEB. That is, by approving the MVEB portion of the plan, the EPA is tacitly accepting the State’s planning assumptions in the overall Attainment Plan. Additionally, the EPA’s approval of the MVEB along with the underlying planning assumptions, commits the agency to a definite course of action in the SIP approval process and conformity determination. That is, if the agency finds the MVEB appropriate resulting in a conformity determination based on that MVEB, it is an implicit acceptance of broader planning assumptions the SIP as well, meaning that it will likely approve the entire SIP with those planning assumptions, otherwise it will have to start the whole approval process over again. Such a result would be inappropriate given the deficiencies listed below. Furthermore, approval of a piece of the Attainment Plan constitutes approval of a revision of the Bay Area’s State Implementation Plan (“SIP”) subject to the SIP revision requirements under the Clean Air Act §110.
With these concerns in mind, CBE would like to point out significant legal and technical deficiencies in the Attainment Plan that make approval of the proposed motor vehicle emissions budget inappropriate at this time. Rather than approve the MVEB, we respectfully request the EPA to direct the State to modify the Attainment Plan to correct the following deficiencies or to reduce the MVEB to account for the following shortfalls.
Technical Deficiencies in the Attainment Plan’s Inventory and Estimated Reductions Call for a Significant Reduction in the MVEB
CBE and other groups have submitted numerous comment letters to relevant State agencies detailing the technical deficiencies in the Attainment Plan’s inventory estimates along with the estimated reductions from stationary source control measures in the Attainment Plan. We remain very concerned about the current quality of the inventory. Attached as Exhibit A is a body of documents we previously submitted which include many of our concerns. The following are examples of the inventory’s inaccuracies:

·   Flare emissions are underestimated: Flare emissions in the inventory assume 99% efficiency, with an associated 13 tons per day of Hydrocarbon emissions. However, it is standard EPA practice to assume 98% efficiency, which means double the remaining uncombusted hydrocarbons, or 26 tons per day. This means at least a 13 tpd shortfall exists in the flare emission inventory. In fact, flare emissions could be far higher. A BAAQMD engineer estimated emissions at 13 to 134 tons per day, based on flare efficiencies which could vary between 99% down to 90%.

The District made a decision to use the lowest end of this range. We also submitted evidence (included in our attachment) from EPA that flare emissions could go down as low as 60%. This would mean emissions 40 times as high as the amount included by the District in the inventory or 520 tpd (40 x 13 tpd). In addition to the EPA evidence, a Canadian flare study found that flare efficiency varies widely based on wind speed, as well as flare constituents. The District has made no provision in it’s inventory for any variation in flare efficiency below 99%. This is clearly incorrect.

·   Waxman study found vastly underreported leaking valve emissions: EPA inspections found much higher leak rates for refinery valves (including for Bay Area refineries) than were reported by the refineries (according to “Oil Refineries Fail to Report Millions of Pounds of Harmful Emissions,” U.S. Representative Henry A. Waxman, November 1999, attached). EPA found an average leak rate of 5%, compared to 1.3% reported by these refineries. EPA estimated the emissions from the unreported leaks at over 80 million lbs/year of VOCs emissions, including 15 million pounds of toxics. The range of leak rates reported by the refineries was 0.2 to 3.6%, but EPA found a range of 1.7 to 10.5% for ten companies for which the investigation was completed. For another 7 refineries still under investigation, the refineries reported a leak range of 0.2 to 2.3%, but EPA found range of 2.8 to 11.5%.

·   Pressure Relief Valves (PRVs) liftings are underestimated: This underestimation was a problem identified by the Air District’s own staff, who discussed the problem with PRVs opening and releasing hydrocarbons, then closing without being detected, reported, or included in emissions estimates in a staff report. “None of the refineries had a reliable system to identify or track lifts. The emissions from PRV lifts are probably underreported because these valves are not instrumented and emission quantification for lifts is not required. 14 These detection methods are not definitive and clearly indicate many PRV lifts likely go undetected” This problem has not been remedied in the inventory, and the District instead has relied on industry representatives stating that they would be able to hear a PRV lifting if it occurred. This type of monitoring based on refinery staff hearing a lifting is not subject to enforcement review by the District and is completely unreliable. In fact, refinery representatives have reported to us that PRV liftings occur routinely without being reported. (Note that Pressure Relief Valves are a different kind of valve than those discussed above in the Waxman report, and so this is an additional problem with the inventory.

·   Poor enforcement of existing regulations mean additional emissions: The District is far behind in enforcement of existing District regulations, causing associated emissions increases not included in the inventory Our attached comments discuss over 1300 Notices of Violation of District regulations which had not been processed, some of which have been outstanding for more than seven years. There are certainly emissions increases associated with these NOVs, but the District inventory assumes compliance with its regulations. EPA, ARB, and the District should evaluate the emissions associated with non-compliance with violations of District regulations, and should add these to the inventory. The District should include a SIP precursor reduction measure for evaluating enforcement, inventorying emissions associated with lack of compliance, and developing compliance deadlines and additional mechanisms to ensure compliance.

·   Power generation emissions are increasing The District is also planning to allow increases in emissions related to the energy deregulation crisis. For example, there will be emissions increases from backup generators, new cogeneration plants proposed, (such as the Valero refinery), new or expanded peaker plants, and new plants or expansions not currently included in current CEC projections, which the District is relying upon. It is the District’s responsibility to ensure that its inventory is complete and not to solely rely upon the CEC projections without determining whether those projections include all sources. The District has not included all these sources in the Inventory.

These are only a few examples of inventory problems previously identified in our comments. Please see attached Exhibit A. We believe that this represents a pattern and practice of ignoring evidence indicating inventory underestimation by the District, which means a need for EPA to provide a detailed, methodical reassessment of the entire inventory before it approves any technically justifiable MVEB based on that inventory.
Legal Deficiencies in the Attainment Plan Make Approval of The MVEB Premature
The EPA may not approve any part of the Attainment Plan without ensuring that the Plan comports with the requirements of the Clean Air Act. The Attainment Plan fails to satisfy the Clean Air Act’s requirements in a number of ways.
State agencies Adopted the Attainment Plan in Violation of State Law, and Therefore Submitted that Plan to the EPA in Violation of the Federal Clean Air Act
Under § 110 of the Act, the State of California may not submit an implementation plan without first providing necessary assurances that it is not prohibited by Federal or State law from carrying out that Plan. The Clean Air Act states, “Each implementation plan submitted by a State . . . shall . . .(E) provide (i) necessary assurances that the State . . . will have adequate personnel, funding , and authority under State . . . law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof) . . .” 42 U.S.C. § 7410 (a)(2)(E).
Through pending litigation in the San Francisco Superior Court, CBE and Transportation Solutions Defense and Education Fund (“TRANSDEF”) allege that the Attainment Plan was illegally approved by the Bay Area Air Quality Management District (“BAAQMD”) in violation of the California Environmental Quality Act and by the Association of Bay Area Governments (“ABAG”) and the Metropolitan Transportation Commission (“MTC”) in violation of the California Health and Safety Code. The local agencies then illegally transferred the Attainment Plan to the California Air Resources Board (“CARB”), which approved the Plan in violation of the Cal. Government Code and in violation of the Cal. Health and Safety Code. According the the provision of the Clean Air Act cited above, CBE and TRANSDEF’s lawsuit against the BAAQMD, ABAG, MTC and CARB for approving the Attainment Plan in violation of state law has a bearing on the Plan’s validity under the Clean Air Act. A copy of the amended petition and complaint alleging each of the state law violations underlying CBE and TRANSDEF’s claims is attached hereto as “Exhibit B.” Until those state law claims are resolved, EPA should withhold approval on any aspect of the Attainment Plan because as mentioned above, as a revision to the SIP, the Plan does not pass federal muster under the Clean Air Act if it its approval was improper under California law. 42 U.S.C. § 7410 (a)(2)(E). Any order from the San Francisco Superior Court invalidating state approval of the Attainment Plan under state law automatically makes the entire Plan, including the MVEB, invalid under the federal Clean Air Act.
As further evidence of the State’s attempt to thwart its legal obligations under State law, after CBE and TRANSDEF filed the above-mentioned petition and complaint which contained an allegation that CARB illegally amended the Plan in violation of the Cal. Government Code, CARB wrote a resolution that did not include those amendments. Clearly, this post hoc attempt to disregard the amendments to the Attainment Plan introduced at CARB’s November 1, 2001 public hearing is in contravention to California’s Sunshine Law (the Brown Act). After introducing amendments to the Attainment Plan at its November 1, 2001 hearing, CARB’s subsequent withdrawal of those amendments from the resolution approving the Plan constituted a final, official government action, subject to the regular notice and opportunity to comment requirements of the Cal. Administrative Procedures Act. Furthermore, by taking such official action behind closed doors to avoid public scrutiny, CARB violated California’s Brown Act, Cal. Government Code § 54950 et seq., which requires such decisions to be made in public, rather than behind closed doors.
The Attainment Plan Contains a “Blackbox” in Violation of Federal Law, Rendering the Entire Plan Illegal Under The Clean Air Act
The Plan calls for a potential additional 26 tons of reductions, subject to further study, if BAAQMD finds those additional reductions to be necessary. This 26 ton per day “blackbox” of reductions is not compliant with Clean Air Act’s demand for specificity in the form of enforceable control measures and emissions limitations. The Clean Air Act specifically states that “Each [state implementation] plan shall . . . include enforceable emission limitations and other control measures, means, or techniques . . . as may be necessary or appropriate to meet the applicable requirements of this chapter.” 42 U.S.C. § 7410(a)(2)(A); See also 42 U.S.C. § 7502(c)(6) (“Such plan provision shall include enforceable emission limitations, and such other control measures, means or techniques . . .as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment . . . .”). Certainly, a vague assurance to consider whether or not 26 tons per day of additional reductions are necessary in the future to reach attainment of the Clean Air Act’s standards does not meet the definition of “enforceable emission limitation” or “other control measures, means, or techniques” required under the Act.
Putting aside the concern that this vague “blackbox” of reductions indicates that BAAQMD does not actually know how much pollution reduction is necessary to achieve attainment of Clean Air Act standards, EPA’s acceptance of the blackbox in the Plan threatens a dire outcome. Namely, once BAAQMD conducts the necessary studies to accurately determine the existing levels of pollution in the Bay Area and finds that our pollution levels are actually much worse than previously thought, BAAQMD will be forced to scramble to find additional pollution reduction strategies not currently contemplated by the Attainment Plan. By then, the Bay Area’s mobile source reduction strategy will be firmly cemented by approval of the MVEB and the implementation of a regional transportation plan that stems from that MVEB and related conformity determination. In other words, in order to compensate for the uncertainty in the Plan’s estimates of current levels of pollution in the Bay Area, approval of the MVEB should be held off until an accurate baseline determination is made. Or, at the very least, the MVEB must be adjusted to provide a cushion to address all potential uncertainties in current inventory estimates, rendering EPA’s anticipated approval of the current MVEB and subsequent conformity determination premature under the Clean Air Act. Furthermore, to the extent that the MVEB relies on the Attainment Plan’s assumptions, including the “blackbox” of reductions, it cannot be approved by the EPA, because it is not supported by an enforceable and legitimate overall pollution control strategy in the SIP as required by 42 U.S.C. § 7410(a)(2)(A).
The MVEB Constitutes a Revision to the Bay Area’s SIP that Illegally Interferes with Attainment Of Clean Air Act Standards
“The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of this chapter.” 42 U.S.C. §7410(l). The MVEB revises Bay Area’s SIP and is therefore subject to the Act’s limiting criteria for SIP revisions as explained above. The MVEB illegally interferes with attainment because it does not account for the MTC’s failure to implement Transportation Control Measure 2 requiring an increase of public transit ridership by 15% over 1983 levels. MTC’s failure to implement TCM 2 was established by Federal District Court Judge Henderson in a recently issued order in Bayview Hunters Point et al. v. MTC et al., No. C01-0750 TEH, U.S. District Court for the Northern District of California, November 8, 2001. Because TCM 2 is an unachieved goal in the Bay Area’s SIP, affecting the Bay Area’s timely attainment of the Clean Air Act’s standards, the MVEB’s failure to account for MTC’s non-implementation of TCM 2 constitutes an illegal interference with attainment.
The MVEB further frustrates attainment and interferes with the requirements of the Clean Air Act in violation of 42 U.S.C § 7410(l) because, as explained above, the planning assumptions it relies on are defective. Finally, approval of any part of the Attainment Plan, including the MVEB, interferes with “applicable requirements” of the Clean Air Act because the Act does not allow adoption of an Attainment Plan that cannot be carried out under State law. 42 U.S.C. §§ 7410(a)(2)(E). As mentioned above, the Attainment Plan was adopted by BAAQMD, MTC, ABAG, and CARB in violation of the California Environmental Quality Act, in violation of the California Government Code and in violation of the California Health and Safety Code.
For the foregoing reasons, and in the interest of public health and environmental justice, CBE respectfully requests the EPA to withhold approval of the Attainment Plan’s MVEB and to instead correct the above legal and technical deficiencies in that Plan to ensure that timely attainment of federal air quality standards is a reality for the Bay Area.
Suma Peesapati, Staff Attorney                                  Julia May, Lead Scientist