Via Electronic Mail and Mail

June 4, 2001

Ms. Jean Roggenkamp
Planning and Transportation Manager
Bay Area Air Quality Management District
San Francisco, CA 94109

Re: Comments on the Draft San Francisco Bay Area Ozone Attainment Plan for the 1-Hour National Ozone Standard

Dear Jean,

Thank you for this opportunity to comment on the Draft 2001 Attainment Plan for the San Francisco Bay Area. Earthjustice would like to concentrate, in this letter, on three issues surrounding this draft plan: the public process, the contingency measures, and the requirement for all reasonably available control measures (“RACM.”)

Public Process

On Wednesday May 30th, several dozen community activists affiliated with the
group Communities for a Better Environment staged a protest at the first public hearing on the full Draft 2001 Attainment Plan. The fundamental grievance cited by these protesters was that no public hearings have been scheduled at times and in locations that would allow the communities most affected by ozone precursor emissions to attend, to learn, and to comment. 1 Earthjustice would like to strongly support this need for a significantly more robust public process that actually engages these communities that have been historically under-protected from environmental harms. 2

The Bay Area Air Quality Management District (“Air District”), its two co-lead local agencies, and the California Air Resources Board (“ARB”) appear to believe that a non-expedited public process that can include meetings in affected communities will result in an outcome that must be avoided at all costs-a transportation conformity lapse-stemming from the U.S. Environmental Protection Agency’s (“EPA's”) requirement to act on the 1999 Attainment Plan submittal by the end of August. This decision-making “box” is a self-constructed one and departs from reality in at least two ways.

First, the consequences of a temporary conformity lapse in the San Francisco Bay Area have been obfuscated by the local agencies. In reality, under a conformity lapse, all maintenance, operations, transit, and safety projects could proceed without impediment. The only projects that would be delayed by a short-term conformity lapse are highway expansion projects that are not yet in a construction phase. Transit capital projects could advance as part of Transportation Control Measure 2 (“TCM 2”) and could even benefit from previously committed highway expansion funds. In other words, under a temporary conformity lapse, the Metropolitan Transportation Commission (“MTC”) could shift federal and state funds so as not to loose a penny of transportation subsidies intended for the region. Moreover, redirecting some highway expansion funds to cover transit capital needs would be beneficial for the breathing public.

Second, the region’s best bet to avoid longer-term conformity consequences is to develop and submit a 2001 Attainment Plan that adequately protects public health such that the EPA will find that the motor vehicle emissions budgets (“MVEBs”) are adequate. Currently, the Draft 2001 Plan is deficient in many respects. Due to these shortcomings, an EPA adequacy determination on MVEBs associated with the May 2001 version of this plan would be susceptible to legal challenge. An abbreviated public process that leaves key constituencies feeling shut out is one deficiency that should provoke an inadequacy determination from EPA, especially as the communities requesting a more robust public process are among those best positioned (near refineries, power plants, and freeways) to suggest potentially reasonably available control measures.

The co-lead agencies’ expedited development and submittal schedule for the 2001 Attainment Plan is a train wreck waiting to happen. More time will allow for real input from affected communities and a plan that ensures that the Bay Area finally attains the ozone NAAQS as expeditiously as practicable.

Contingency Measures
One of the most glaring inadequacies of the Draft 2001 Attainment Plan is the set of proposed contingency measures. The draft plan describes Clean Air Act Section 172(c)(9) as requiring contingency measures if the region has not attained the national ozone standard by 2006. 3 This description omits the statute’s requirement for contingency measures if the region fails to make reasonable further progress (“RFP.”)

EPA’s Federal Register notice of the proposed partial disapproval of the 1999 Attainment Plan reads: “if the attainment deadline is 2005 or later, EPA is proposing that the RFP requirement be satisfied half way between the time of the attainment demonstration and the attainment date.” See 66 Fed.Reg. 17385. If the three co-lead agencies choose to stick with a 2006 attainment date, contingency measures must be included in the plan to compensate for a potential RFP shortfall in 2004.

The substance of the proposed set of contingency measures in the 2001 Draft Attainment Plan is also particularly problematic. The package is spartanly described as already adopted ARB mobile source measures. No further explanation is given and no specific measures are referenced. It is my intuition that the vast majority of the emissions reductions from the proposed contingency measures are ARB estimates of the future effectiveness of its on-road motor vehicle program. Regrettably, CARB has a long history of getting these numbers wrong. A quick survey of the three most recent Bay Area ozone plans captured below in Table 1 reveals the massive uncertainty that surrounds predicting emissions from on-road sources.

Table 1. Estimates of Bay Area Motor Vehicle Emissions for the Year 2000
Submittal VOC (tpd) NOx (tpd)
1994 Maintenance Plan “Year 2000” 142.0 166.0
1999 Attainment Plan “Year 2000” 175.2 274.1
Draft 2001 Attainment Plan “Year 2000” 241.0 360.8

Of course, the contingency package’s presumed heavy reliance on ARB on-road estimates is only part of the problem. The attainment strategy, the emissions reductions contingency measures are intended to back up, are again overwhelmingly from ARB’s historically flawed projections of future on-road motor vehicle emissions. 63% of the VOC reductions and 80% of the NOx reductions in the Draft 2001 Plan are based upon these estimates with a long history of being wrong. While the correct gambling analogue escapes me, this practice of backing up projections riddled with massive uncertainties with projections suffering from the same massive uncertainties is conceptually disturbing and inadequately protective of public health.

Real contingency measures, under the control of the Air District, to be implemented in 2004 if the region is not making reasonable further progress toward attainment must serve as collateral if consistently overly optimistic mobile source projections turn out to be just that.

Reasonably Available Control Measures

While the Draft 2001 Attainment Plan's RACM analysis is certainly an improvement over what was contained in the 1999 Attainment Plan, it is still deficient in several ways. First, the draft plan’s assertion that RACM for all sources subject to Clean Air Act requirements is satisfied because reasonably available control technologies (“RACT”) have already been implemented is incorrect. The statute defines RACM as RACT at a minimum. Measures beyond RACT for sources currently subject to Clean Air Act rules may be reasonably available and must be analyzed.

Second, the draft plan’s RACM analysis mentions that the measures developed by the Air District for the state Clean Air Plan (“CAP”) and by the State of Texas and the South Coast Air Quality Management District for their respective state implementation plans (“SIPs”) were reviewed for RACM. However, the draft submittal provides little or no record of these evaluations. The discussion of the Bay Area’s CAP contains no analysis of potentially RACM. The review of South Coast measures is inexplicably constrained to measures adopted or amended from 1998 to the present and is otherwise lacking detailed analysis. The Houston and Dallas SIPs are dismissed in a few broadbrushstroke sentences. A more robust analysis of measures from these plans must be included in the proposed final 2001 Attainment Plan.

Third, the universe of potentially RACM to be analyzed appears to be arbitrarily truncated. During a public meeting discussing the proposed new TCMs, Earthjustice suggested that the TCM RACM analysis include all TCMs from the South Coast SIP and all measures found at the EPA’s TCM database 4. None of these sources of potentially RACM appear to have been addressed in the draft plan. In addition, the EPA’s November 24, 1999 document titled “Serious and Severe Ozone Nonattainment Areas: Information on Emissions, Control Measures Adopted or Planned and Other Available Control Measures” 5 contains a wealth of potentially RACM that ought to be analyzed. Similarly, the EPA’s guidance packages “Using Emission Reductions from Commuter Choice Programs to Meet Clean Air Act Requirements” (EPA, Office of Mobile Sources, 1999) and “Improving Air Quality Through Land Use Activities” (EPA, Office of Transportation and Air Quality, 2001) may harbor RACM for the Bay Area. Furthermore, as previously mentioned, communities near major sources of ozone precursors may be able to suggest innovative RACM beyond the radar screen of professional air quality planners and engineers. In this way, it is vital that additional community meetings be held, in part, to satisfy the RACM requirement.

Finally, the standard of review for RACM is not clearly delineated. For instance, several measures that are otherwise deemed to be RACM are not included in this draft submittal because the measures are labeled as “not cost-effective.” No threshold is given (nor defended) for what ratio of dollars to tons abated is cost-effective and therefore reasonably available. Without establishing a defensible cost-effectiveness threshold, approval of this plan by the EPA would be arbitrary and capricious and would not withstand judicial review.

Thank you for considering these comments on the Draft 2001 Attainment Plan.


S/Stanley Yung

1. Oddly, even though environmental justice concerns have been a dominant theme throughout the process that has led to the development of the Draft 2001 Attainment Plan, mention of environmental justice concerns is conspicuously absent from the draft plan.

2 Earthjustice strongly disagrees with the reasoning that the 2001 Attainment Plan process is not the proper forum for concerns from communities most affected by localized ozone precursor emissions. What other forum do citizens have to advocate for measures that will reduce local levels of ozone precursors and particulates that are enforceable by the federal government and by the citizens themselves?

3. The draft plan seems to implicitly acknowledge 2006 as the attainment date, though my review of the document did not yield an explicit reference to 2006 as the attainment date, though one reference is made to 2006 as the attainment deadline. Earthjustice believes that the Act’s requirement for attainment as expeditiously as practicable ought to be driven by an adequate RACM analysis that would likely move the attainment date up.

4. The EPA's TCM database can be found at

5. Earthjustice can send along a PDF version of this document if the Air District is unable to locate it.