Office of Marc Chytilo
Environmental Law

P.O. Box 92233
Santa Barbara, California 93190
Phone: (805) 682-0585
Fax: (805) 682-2379
Email: Law

August 15, 2002

Mr. Dave Jesson
EPA Region IX
75 Hawthorne Street
San Francisco, California 94105-3901

by email (, fax (415 947-3579) and US mail

RE: California MVEB Notice of Proposed Rulemaking July 16, 2002, 67 Federal Register 46618

Dear Mr. Jesson:

Please accept these comments on behalf of Transportation Solutions Defense and Education Fund ("TRANSDEF"), a non-profit organization comprised of and representing members that both breathe the air in California and utilize California's transportation system. In addition, these comments are also submitted on behalf of the following groups: Communities for a Better Environment, Our Children's Earth Foundation, Earthjustice, Sierra Club, Latino Issues Forum, and Urban Habitat.

EPA's Notice of Proposed Rulemaking seeks to reverse a provision of the national conformity regulation to accommodate the State of California's mis-management of its air quality planning programs. EPA must not condone California's extended delay in updating antiquated SIPs and delay of the release of updated motor vehicle emissions models to accommodate problems faced by a single recalcitrant District. ARB must immediately address its duties and responsibilities under the Act to ensure that the California State Implementation Plan, including each of its local and regional elements, demonstrates and actually accomplishes attainment and maintenance of the relevant ambient air quality standard as expeditiously as practicable, including consideration of effects on downwind Districts. Failure of the State and EPA to fully comply with the Act's mandates will result in judicial review of such actions and increasing levels of public discontent over the systematic failure of these agencies to provide the people of California with healthful air quality and transportation alternatives.


The Notice fails to disclose the real rationale for the rule - the State's failure to employ statutorily mandated latest planning assumptions, DOT's acknowledgement and declaration that it is inappropriate to rely on the antiquated EMFAC7F/G emissions model for future conformity determinations, and DOT's December 31, 2002 deadline to start using current emissions models for conformity purposes. Letters, Administrators Rogers and Ritchie to Executive Officer Kenny, April 8, 2002, May 2, 2002. DOT has directed that any future conformity determinations are to be based on the updated EMFAC version, which ARB has elected to provide through "comprehensive" SIP revisions. EPA's rulemaking record must disclose that ARB's proposed action is being undertaken to avoid statewide conformity issues by replacing the emissions budgets used to demonstrate attainment in currently approved SIPs with enlarged emissions budgets that have no demonstrated relationship to attainment of the NAAQS. The use of such budgets for conformity purposes prior to a determination by EPA that such enlarged budgets will still provide for attainment without offsetting emissions reductions in each air shed violates clear mandates of the Act and EPA's regulations.

ARB declined to apply the current best estimates of motor vehicle emissions to update its SIPs' motor vehicle emissions inventories at DOT's request, and delayed a response to DOT's concerns for between six to eighteen months. In addition, ARB has apparently not clearly committed to review the adequacy of prior attainment demonstrations, or submit new demonstrations, as part of its current plan to develop revised MVEBs using current estimates of motor vehicle emissions. ARB's unwillingness to confront this issue earlier unnecessarily created the need for this extraordinary rulemaking.


The proposed rule does not accord with the Clean Air Act, EPA's conformity regulations or sound air quality and transportation planning, and must not proceed.


The Clean Air Act's §176(c)(1) and (2) mandate that conformity be established using the "implementation plan approved or promulgated under section 7410," and the "applicable implementation plan." An "applicable implementation plan" is defined as the SIP "which has been approved under" §110. § 302(q). EPA has "[c]onced[ed] that the Clean Air Act generally requires conformity to be evaluated against approved SIPs." EDF v. EPA, 167 F.3d 641, 650 (D.C.Cir. 1999). EPA's Notice provides no explanation of how the proposed action may be reconciled with a plain reading of the statute and interpretation adopted by EPA in its conformity rulemakings and adopted by the D.C. Circuit Court of Appeals. As such, the Notice and proposed action are defective and commenters herein are left to simply guess what EPA could be thinking. There is no explanation how the proposed action can be reconciled with the statute, and as such, the action is patently illegal and inconsistent with the Act's language and purposes. Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Ins. Co., 463 U.S. 29, 42 (1983) ("an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.").


EPA's conformity regulations specifically provide:

submitted implementation plans do not supercede the motor vehicle emissions budgets in approved implementation plans for the period of years addressed by the approved implementation plan.

40 C.F.R. §93.118(e) (emphasis added).

The proposed action is flatly contrary to EPA's adopted and controlling regulation.

The purpose for this proposed rule is to allow the replacement of current MVEBs derived from analytically robust determinations of the levels of motor vehicle emissions necessary to demonstrate and accomplish attainment (through the §110 SIP approval process using notice and comment rulemaking), with substantially enlarged MVEBs to be used for making findings of conformity based on a MVEB simply deemed adequate after EPA's "cursory" review of MVEB adequacy with possibly no demonstration that the NAAQS will be attained if substantially greater motor vehicle emissions are allowed, and without conducting a notice and comment rulemaking. EPA has made no finding that the levels of motor vehicle emissions required to be achieved by currently approved MVEBs are no longer necessary for attainment. The proposed action represents a substantial reduction in the level and scope of both substantive and procedural review of the adequacy of revised MVEBs.

In light of EPA's previous reliance on mere commitments to consider future unspecified control measures in future SIP revision in the Bay Area SIP as supporting EPA's finding of MVEB adequacy, 67 Fed. Reg. 8017 (Feb. 21, 2002), Commenters have grave concerns that EPA may attempt to find MVEBs adequate based on incomplete and/or patently inadequate SIPs, creating great uncertainty in both air quality and transportation planning processes throughout the State while compromising air quality and public health. As preliminarily determined during stay proceedings by the Ninth Circuit ion TRANSDEF, et al., v. EPA, No. 02-70443, Order July 26, 2002, such MVEBs should not be found adequate since the subsequent transportation planning, programming and funding commitments may interfere with accomplishing the emissions reductions necessary for attainment in both the air basin of origin as well as downwind air basins.


In the preamble to the 1997 national conformity regulations, EPA responded to "commenters [that] believed that newly submitted SIPs often provide a more realistic picture of the future than approved SIPs. Some believed that, unlike approved SIPs, newly submitted SIPs are more accurate because they are based on an area's latest planning assumptions." 62 Fed. Reg. 43783. See also 61 Fed. Reg. 36117 (July 9, 1996).

These assertions parallel California's claims in the June 14, 2002 ARB letter to Wayne Nastri that precipitated this proposed rulemaking. "Without the ability to replace existing emissions budgets with submitted ones using the budget adequacy process, the benefits of using the updated data from the stronger, more effective SIPs would not be realized for a year or more after the SIPs are submitted, due to the SIP approval process." Letter, Mike Kenny, ARB to Wayne Nastri, EPA Region IX, June 14, 2002.

EPA previously rejected this rationale in the 1997 conformity regulations rulemaking. "Although EPA acknowledges that using updated budgets may be preferable, EPA does not believe that it is legal to allow a submitted SIP to supercede an approved SIP for years addressed by the approved SIP. As stated in the proposal, §176(c) specifically requires conformity to be demonstrated to approved SIPs." 62 Fed. Reg. 43783.

EPA cannot reverse a position taken in national rulemaking after notice and comment procedures without explaining the basis and rationale for changing its interpretation of the statute. Motor Vehicle Mfrs. Ass 'n., supra. Here it has not done so. EPA has not provided the legal basis for its changed interpretation of the Act in 1997 EPA rejected the identical suggestion as illegal (62 Fed. Reg. 43783) but now proposes to adopt the rejected proposition as a (presumably) legal extension of the Act, but without explanation. As such, the Notice and underlying action are defective.


The Notice of Proposed Rulemaking is ambiguous concerning the nature of California's commitments and the adequacy of the SIP submittal that EPA will rely upon in determining MVEB adequacy. Commenters believe that only those SIPs that are complete and adequate in accordance with the statute and EPA's SIP adequacy regulations (40 C.F.R. Part 51) and which are based on a comprehensively modeled attainment demonstration may support a finding of MVEB adequacy. The State may not rely on previous attainment demonstrations in the April 2003 SIPs and EPA may not rely on these previous attainment demonstrations in its determination of either SIP or MVEB adequacy if the revised MVEB allows substantially greater emissions than the estimates used for the earlier attainment demonstrations.

As explained in the General Preamble, one of the purposes of SIPs are to "perform demonstrations of how various goals will be achieved. These goals are of three types: Attainment of the NAAQS, maintenance of the NAAQS once attainment occurs, and prescribed rates of progress." 57 Fed. Reg. 13567 (April 16, 1992). Since MVEBs are an essential element of the process Congress created to ensure that transportation and air quality planning efforts proceed in "lock step," EDF v. EPA, supra, 167 F.3d at 649, the levels of motor vehicle emissions enabled by the MVEBs must be demonstrated to be consistent with attainment, maintenance and rate of progress. That demonstration can only occur through a modeled attainment demonstration considering all elements of the SIP submittal. The Notice of Proposed Rulemaking is vague concerning the levels and nature of SIP submittals that EPA will accept to support findings of MVEB adequacy, and commenters implore EPA to require, though this and any other MVEB adequacy rulemakings, that MVEB adequacy only be considered on the basis of SIPs that competently model attainment, maintenance and/or rate of progress in accordance with the standards established at 40 C.F.R. § 51.112.


The Notice of Proposed Rulemaking is silent on the standards that EPA will employ in determining the adequacy of control strategies achieving emissions reductions necessary to accomplish attainment. ARB's June 14, 2002 letter vaguely references the incorporation of "federally enforceable commitments" into the April 2003 SIPs. At page 2. The nature of these commitments are not identified, but to the extent the State intends to rely on enforceable commitments to submit later demonstrations that the NAAQS will be attained if higher estimates of motor vehicle emissions are allowed, and the subsequent enforceable measures will be submitted to make up for excess emissions resulting from enlarged motor vehicle budgets, the proposed strategy is unlawful. Commenters believe that EPA's consideration and reliance upon mere "enforceable commitments" to accomplish further emissions reductions necessary for attainment, maintenance or rate of progress is patently illegal and contrary to the Act.

As explained in its Responses to Comments on the Adequacy of the VOC and NOx Transportation Conformity Budgets Contained in the San Francisco Bay Area Ozone Attainment Plan, US EPA Feb. 14, 2002 (incorporated herein by reference), EPA has contended that "nothing in the act speaks directly to the approvability of enforceable commitments." At page 20. EPA thus has relied upon mere "enforceable commitments" 1 by the State to "amend the ozone SIP control strategy through a public process as necessary to achieve attainment by 2006." Bay Area Ozone Attainment Plan at 2. No control measures are identified to accomplish the 26 tpd emissions reduction shortfall, no schedule for implementation, and EPA makes incomprehensible attempts (with no record support) to assert that the future emissions reductions will be accomplished without controls on motor vehicles affecting the MVEB. Commenters TRANSDEF and others have consistently contended that EPA is without authority to rely on enforceable commitments other than the authority expressly granted by Congress in §110(k)(4), conditional approval. See, Environmental Petitioners Second Supplemental Memorandum TRANSDEF et al v US EPA, No. 02-70443, consolidated with Sacramento Metropolitan Air Quality Management District, et al v. US EPA, No 02-70848, filed Aug. 9, 2002 (incorporated herein by reference). See also, NRDC v. EPA, 22 F.3d 1125, 1135 (D.C.Cir. 1994) and City of Seabrook v. US. EPA, 659 F.2d 1349, 1356 (5th Cir. 1981). Any other control strategies submitted as part of a SIP for which EPA's preliminary MVEB adequacy determination is sought must conform to EPA's SIP adequacy regulations, in particular 40 C.F.R. § 51.281 which requires that any "[e]missions limitations and other measures necessary for attainment and maintenance" of any NAAQS "must be adopted as rules and regulations enforceable by the State agency. Copies of all such rules and regulations must be submitted with the plan. Submittal of a plan setting forth proposed rules and regulations will not satisfy the requirements of this section nor will it be considered a timely submittal." (Emphasis added.) EPA must direct the State, through this rulemaking, that any SIP submittals that the State tenders as part of a MVEB adequacy determination request must meet the requirements of 40 C.F.R. § 51.281. "Enforceable commitments" cannot sustain a finding of MVEB (or SIP) adequacy.


The 1999 D.C. Circuit decision rejecting several portions of the 1997 conformity regulations concerning MVEB adequacy, EDF v. EPA, supra, necessitated revisions to EPA's conformity regulations. Rather than immediately adopting amending regulations, EPA's Office of Mobile Sources issued a Memorandum on May 14, 1999 outlining a purportedly "workable administrative approach" until regulations are adopted. Vagueness in the standards employed in EPA's consideration of MVEB adequacy and the appropriate administrative processes for EPA's action have bred confusion and attempts by States to improperly gain adequacy determinations for patently incomplete and/or inadequate MVEBs. This has, in turn, led to litigation over EPA's actions and permitted metropolitan planning organizations to shirk their duties to produce plans and programs that satisfy Congressional direction to ensure that transportation actions contribute a portion of the emissions reductions needed for many areas in the Country to accomplish and maintain attainment status. Commenters implore EPA to fulfill its own commitment made over three years ago to properly promulgate MVEB adequacy and other regulations that implement the D.C. Circuit Court of Appeals' interpretation of the Clean Air Act. EPA cannot rely on its failure to conform its regulations to the Court's remand as a basis for conducting a state-specific rulemaking that attempts to avoid the national rulemaking process required by Congress for promulgation of conformity regulations.


EPA acknowledged in 1997 that "SIP revisions that EPA has approved under Clean Air Act §110 are enforceable and cannot be relieved by a submission, even if that submission utilizes better data." 62 Fed. Reg. 43783. The Notice of Proposed Rulemaking recites that the adopted SIPs will remain federally approved and enforceable, but ARB states that revised "rules, controls and standards" will be reflected in the updates. The approved SIPs contain rules and control strategies for mobile sources that will remain federally enforceable while submitted, revised MVEBs will rely on control strategies that cannot be federally enforced. If the revised control strategies are not perfectly consistent with the revised control strategies, industry may be able to sue to enforce the approved SIPs' more relaxed and ineffective control measures until EPA's approval of the SIP revision, if any, is effective. Industry has proven adept at litigation to delay the effective dates of rules they consider onerous to implement, and should be expected to employ any such loophole created by the proposed action.


As organizations comprised of members that breathe the air and engage in travel throughout California, Commenters herein will be harmed by EPA's finalization of the proposed action. EPA's action will skirt Congressionally mandated protections of human health and the environment, permit the expenditure of federal transportation funds on projects that fail to reduce
air pollution emissions and thus cause and contribute to unhealthful air quality. NRDC v. EPA, 489 F.2d 390, 411 (9th Cir. 1974); LaFleur v. Whitman, ___F.3d ___ (2nd Cir, 2002) 2002 U.S. App. LEXIS 15337 (July 31, 2002). EPA's action will promote single occupancy vehicle travel rather than creating viable alternative transportation systems that could be equally convenient and competitive with automotive use for many travelers. See, Utahns For Better Transportation v. DOT, 295 F.3d 1111 (10th Cir. 2002). Attached herewith are declarations from various members of Commenters submitted for inclusion in the record of this proceeding.


Commenters contend that the venue for any petition for review of the proposed action will lie in the United States Court of Appeals for the Ninth Circuit pursuant to §307(b). The proposed action is "regionally applicable" affecting only Air Pollution Control Districts located in the State of California which is located wholly in the jurisdiction of the Ninth Circuit Court of Appeals.


Congress enacted a conformity process that required affirmative findings of transportation plan, program and project conformity to SIPs' purposes of air quality improvement and further assurance that these actions would not cause or contribute to NAAQS violations or increase their severity in any area. §176(c)(1)(B). If a MVEB is preliminarily determined adequate by EPA but subsequently determined to not be adequate as part of a judicial proceeding or SIP disapproval without a protective finding, those transportation plans, programs and projects that have proceeded in the interim must be halted and federal funds not be further expended unless the project demonstrates a net air quality improvement or conformity exemption. Regional and local governments, as well as third party contractors, must be notified of this potential consequence. This notification requirement should be included in this rulemaking.


The Notice recites that the change to the applicable conformity regulations do not constitute a SIP revision, however the statute requires each area to adopt, maintain and enforce a conformity SIP reflecting that area's conformity criteria, procedures and regulations. §176(c)(4)(C). As the proposed action deviates from each area's § 176(c)(4)(C) conformity SIP, each such SIP will have to be revised to somehow reflect the ad hoc exemption from the nationally applicable rule sought by the State. This procedural requirement demonstrates the difficulty and impropriety of the proposed action.


In light of the failure of many regional Air Pollution Control Districts to develop and implement effective transportation control measures that will effectively control vehicle miles traveled and trip start growth, and the successive State determinations that prior tailpipe controls are not as effective as initially anticipated and modeled, Commenters call upon the State to aggressively develop a series of statewide transportation control measures for employment in the 2003 SIPs. Such measures should include statewide promotion and implementation of the commuter choice program, including state and federal tax incentives for parking cash out. The State should aggressively promote regional transit systems that can supplant long distance auto commuting. Finally, the State should embrace implementation of smart growth principles that will discourage sprawl and encourage the creation of any necessary additional housing along transit corridors and near places of work as part of comprehensive efforts to reduce auto dependence and promote alternative transportation systems.


Commenters implore EPA to withdraw its proposed action and re-propose rulemaking establishing unequivocal standards for SIP submittals that are expected to support MVEB adequacy determinations before SIP adequacy actions. These standards must require complete and adequate SIPs containing robust and complete modeled attainment and/or maintenance demonstrations and complete identification, description, scheduling and regulatory language for control strategies. Committal SIPs must be specifically identified as inappropriate and unacceptable to support, inter alia, EPA's preliminary findings of MVEB adequacy.


S/Marc Chytilo

Mike Kenny, Executive Officer, ARB
Wayne Nastri, Regional Administrator, Region IX

Footnote 1. The actual enforceability of the vague commitments in the 2001 Bay Area Ozone Attainment Plan and ARB’s submittal remain in question.