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

December 21, 2001

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

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

RE: Bay Area SIP Incompleteness Precluding Public MVEB Comment

Dear Wayne and Jack:

As you know, this office represents TRANSDEF in Bay Area air quality issues, and TRANSDEF is a member of the coalition of groups active in air quality issues. While this letter is sent just from TRANSDEF, each other member of the coalition has a direct interest and has expressed concerns about the process and issue discussed below.

Last month, EPA attempted to prematurely begin the public comment period for the Motor Vehicle Emissions Budget (MVEB) adequacy determination. As you know, the Bay Area requires a new MVEB that is supported by a revised State Implementation Plan (SIP) since the previous SIPs have been found inadequate, and the area has failed to attain. Final EPA action on the MVEB is required before Metropolitan Transportation Commission (MTC), the metropolitan planning organization, and DOT may make findings of conformity and approve a new Regional Transportation Plan (RTP). Thus EPA’s MVEB adequacy process is technically important, since it relies on the SIP’s analysis to demonstrate that motor vehicle emissions resulting from transportation projects will contribute to improving local and regional air quality.

EPA’s conformity regulations concerning MVEB adequacy determinations were rejected by the Washington D.C. Circuit Court of Appeals in EDF v EPA and EPA has since relied on a series of guidance memoranda and the portions of the conformity regulations that were not rejected. Thus, while the MVEB adequacy process is imperfectly defined until EPA adopts revised conformity regulations, it is crystal clear that the public cannot be expected to comment on the MVEB adequacy until the SIP, upon which the MVEB relies, is complete and made available to the public. We have requested a complete copy of the SIP, and received a SIP submittal that is clearly incomplete in a number of important respects. This incompleteness prevents us from assessing the adequacy of the MVEB and submitting comments.

EPA’s criteria defining when a SIP is complete, and therefore ready for EPA’s review and public comment, are detailed at 40 C.F.R. Part 51, Appendix V (App. V). These criteria are procedural only, defining what is a complete SIP, and not addressing the SIP’s technical adequacy.

As you know, TRANSDEF and others have strong reservations about the adequacy of the 2001 OAP which have been raised repeatedly in comments before local and state agencies every step of the way, and which we will articulate to EPA when you consider the SIP’s adequacy in the future. For now, however, it is evident that the SIP is not complete, and thus TRANSDEF and others are perplexed and frustrated in our efforts to craft comments on the MVEB. We write this letter to ask that you suspend the MVEB comment period and determine that the SIP submittal is incomplete. EPA may not take action on either the MVEB or the SIP itself, until the District and ARB provide each and every required element of a complete SIP, as detailed at 40 C.F.R. Part 51, Appendix V. We question how EPA can make findings on the issue of MVEB adequacy when some of the central and foundation SIP elements are not provided.

EPA’s MVEB adequacy guidance provides that the public may request a complete copy of the SIP during the first 15 days of the MVEB comment period, in order that the public can see exactly what the SIP contains and analyze the consistency of the SIP and MVEB. MacGrevor Memo, 5/14/1999. EPA’s preamble to the 1997 conformity regulations, addressing MVEB adequacy processes, stated “SIP development must be documented and any technical support information needed to review the adequacy of the SIP must be submitted to EPA” and, implicitly, made available to the public, before MVEB adequacy can be assessed. 62 Fed. Reg. 43780, 43781/3, 8/15/1997. The Federal Register notice proceeds to explain in detail the requirements for SIP submittal before the MVEB adequacy determination processes may begin, and many of these requirements are reflected in the final regulations at 40 C.F.R. Part 93.118(e).

TRANSDEF and others requested copies of the complete SIP so these determinations could be examined. Specifically, we wondered what assumptions were employed in determining the appropriate MVEB for the Bay Area? Given the lack of any margin of safety for the attainment demonstration, and that portions of the District’s “attainment assessment” concluded that the Bay Area would NOT attain by the 2006 deadline, we believe that this inquiry was fully justified. The 40 C.F.R. Part 93.118(e) criteria require that the MVEB be “consistent with” requirements for attainment and be “consistent with and clearly related to the emissions inventory and control measures.” Id., 93.11 8(e)(iv)&(v).

These requirements correlate directly with the Appendix V completeness requirements, which include "technical support" requirements that quantify changes in allowable emissions from affected sources and estimated changes in actual emissions, including differences in baseline levels and emissions. Modeling information is required to be included in the SIP submittal that support the proposed revision, “including input data, output data, models used, justification of model selections ........ assumptions and other information relevant to the adequacy of the modeling analysis.” App. V, § 2.2. Now that we have had the opportunity to review the SIP that was transmitted by EPA, it is evident that the SIP is technically inadequate due to its failure to include this particular and specific information that would allow the public to assess the SIP’s adequacy, and thus the appropriateness of the MVEB. There is virtually no technical backup to support the conclusions in the SIP, which themselves are based on a number of rather speculative assumptions.

For example, the SIP fails to disclose what emissions reductions are predicted to result from which portions of the State’s mobile sources control measures. There is no evidence of the numbers and calculations for this central portion of the emissions inventory. The SIP contains no VMT or vehicle trip data, even though these issues have been hotly contested in the technical subcommittees that led to the SIP’s adoption, such as the Air Quality Conformity Task Force, and in TRANSDEF ’s written and oral comments to all concerned agencies, including EPA. Critically, the SIP contains absolutely no reference to the overall enforceability of these mobile source-based emissions reductions, another essential element of SIP completeness. TRANSDEF contends that the majority of these emissions reductions (reflected in the so-called “EMFAC curve”) are not specifically enforceable.

The SIP contains no reference whatsoever to the essential Reasonably Available Control Measures (RACM) analysis, in particular as addresses transportation control measures (TCMs). EPA has issued extensive guidance on the requirements of RACM and its demonstration, yet the SIP is silent and the analysis appears absent. Portions of the record include District statements that no further TCMs are needed for attainment, while in other locations the SIP states that additional funds are needed to implement more TCMs. The SIP and its TCM RACM analysis fail to address the recent order finding that MTC has failed to implement TCM # 2 from the 1982 SIP in the Bayview Hunters Point case clearly this affects the SIP’s completeness when a prior SIP commitment remains unfulfilled yet there is no treatment of the emissions inventory ramifications nor the actions to remediate that failure.

MVEB adequacy demands that the SIP support the MVEB, but this cannot be shown. We are prejudiced in our efforts to comment on the MVEB when the SIP is lacking in many of its essential elements.

Further, the SIP packet provided to us lacks essential parts of the public process. For example, the District and CARB are required under state, local and federal requirements to conduct public hearings on the SIP. The transcript from those hearings, where numerous comments from the public, particularly members of the public that are not represented by lawyers and reflect specific community concerns such as environmental justice issues, are absent from the record and the SIP. Obviously, there are no staff responses to these comments since the comments, apparently, did not exist. There are no staff responses to comments to either the July or September versions of the OAP, despite the District’s Counsel’s written assurances that all previous comments would be included as part of the SIP and its administrative record to avoid filling the agency files with multiple copies of earlier comments. The July public comments are not included, and neither are the previous comments submitted by participants in this process prior to June 2001. ARB apparently did not respond to comments submitted to it, in spite of the 2 sets of hearings and the duty to respond to comments. Since the 2001 SIP was characterized as a revision to the 1999 SIP (in response to EPA’s finding of SIP inadequacy), we would expect that the proceedings, including comments and the 1999 SIP’s technical assumptions that have long been accepted as the gospel, would be reflected in the SIP submittal. Certainly the SIP relies upon these assumptions and analysis, such that its exclusion has deprived the public’s ability to assess and comment upon the MVEB’s adequacy. See App. V, § 2.1.

Public process issues have plagued the District’s promulgation process, leading to a current state court lawsuit challenging the District’s and MTC’s adoption of the SIP as violating both CEQA and the California Clean Air Act. CBE & TRANSDEF v BAAOMD ABAG MTC CARB et al. San Francisco County Superior Court No. 323849. SIP completeness requires evidence that the State followed all State procedural requirements, which has been challenged. See, App V. § 2.1(e). The suitability of that evidence is in serious question.

Regrettably, it has been our observation that the entire Bay Area SIP promulgation process has been fraught with procedural and substantive errors that have impugned EPA and deprived the public of their ability to meaningfully affect local and regional air quality. Now that we have examined what is in the SIP, it is abundantly clear that the SIP is incomplete, and the MVEB is thus fatally flawed. The public’s resources are limited, and we are challenged not only by the difficulty of getting the necessary information to base our comments on, but also in expending resources on obviously defective procedural actions.

Thus, we implore that you immediately suspend the MVEB adequacy determination process until a complete SIP is submitted and the public has a proper opportunity to review the evidence and cogently comment. As previously stated, we are very interested in meeting with Regional Administrator Nastri to more fully explain our concerns and interests.


S/Marc Chytilo

CC: Nina Speigelman By fax 415 947-3570
Bay Area Air Coalition