Office of air quality management

(1). Requirements of the Administrative Procedure Act

553. Comment: Given the complexity and importance of the rulemaking, it is questionable whether the formal comment period provided would have been adequate under any circumstances. Alliance (Appendix H).

Agency Response: The commenter implies that the formal comment period required by the Administrative Procedures Act (APA) was inadequate. However, the commenter neglects to note that, pursuant to Government Code §11346.45, and consistent with other complex ARB rulemakings, staff provided the public, including this commenter, with multiple opportunities for comment and input during the two years of regulatory development preceding the 45-day notice. The multiple workshops and informational Board meetings were referenced in the staff presentation at the September Board hearing, and included the following:

• 
  • September 26, 2002 Informational Board Meeting
  
• 
  • December 3, 2002 Workshop (Emission Inventory)
  
• 
  • March 11-13, 2003 International Vehicle Technology Symposium
  
• 
  • September 18, 2003 Workshop (Standards, Economics)
  
• 
  • October 14, 2003 Workshop (Alternative Compliance)
  
• 
  • November 20, 2003 Informational Board Meeting
  
• 
  • February 18, 2004 Workshop (Environmental Justice)
  
• 
  • April 20, 2004 Workshop (Technology Assessment)
  
• 
  • July 6, 2004 Workshop (Environmental Justice)
  
• 
  • July 7, 2004 Workshop (Draft Staff Report)
  
• 
  • July 8, 2004 Workshop (Environmental Justice)
  
• 
  • July 13, 2004 Workshop (Environmental Justice)
  

Unlike previous complex rulemakings, the commenter and its member companies took little advantage of these opportunities, which the Board duly noted at the hearing. See e.g. September 24, 2004 Transcript at pp. 120-121.

554. Comment: The public has not been provided the mandatory minimum 45 days to review the cost analysis on which the staff is relying to support its recommended action. During the 45 day period certain material was omitted from the rulemaking file, there was an informal “updating” of the ISOR’s cost and benefit estimates, and an “Addendum” and “Review” document was added. Alliance (Appendix H).

Agency Response: As an initial matter, it is obvious from the structure of Government Code §11347.3(b) that not all of the rulemaking file items listed therein will be available at the commencement of the 45-day comment period cited in §11347.3(a). See e.g. §11347.3(b)(6) (“…written comments submitted to the agency in connection with…the regulation” as cited by the commenter), and §11347.3(b)(8) (the hearing transcript).

In addition, the commenter cites Government Code section 11347.1 for the proposition that what the commenter calls “supplementation” of the record cannot occur during the 45­day period but must occur after the public hearing. This is quite odd, as it presupposes that the initial decision-maker—here the Board—and the public would be better served by keeping known errors and potentially responsive corrections thereto from review until a later 15-day comment period following the public hearing. We do not read the APA as requiring such an absurd result. In any event the “supplemental” material cited received the required further 15-day comment period before final adoption of the proposed action on August 4, 2005.

The ARB did ensure that all information on which the proposal was based was available for review at the commencement of the 45-day period. The ISOR lists 82 references used to support the proposal, none of which the commenter alleges was unavailable. Rather, the commenter alleges that one item – a draft doctoral dissertation – was unavailable until September 2, 2004. While ARB concurs that this was the case, this item was not among the listed References and was not a basis for the proposal. Rather, it was listed in a technical support document as one reference for the CARBITS model, which in turn was in the “Other Considerations” portion of the ISOR and not foundational to the proposal. See response to comment 420; see also page 171 of the ISOR. As the commenter states (Appendix H, Exhibit 1, Macomber Declaration, p. 2), this one item was already the subject of a previous Public Records Act request; ARB went beyond its Public Records Act duties in responding to that request by seeking and obtaining a copy for the commenter’s consultants. This one item and its use in this rulemaking thus comes nowhere close to the level of “privately acquired data” (California Optometric Association v. Lackner (1976) 60 Cal.App.3d 500 at 510) that could render the Board’s decision procedurally suspect.

What the commenter characterizes as a late-published September 22 “Review” document was simply the results of the peer review process mandated by Health and Safety Code section 57004 and not a document requiring review under the APA. This review, like the draft doctoral dissertation above, was not published as support for or a basis of the regulation, but rather to fulfill the peer review requirements. Those requirements do not place a specific time frame on public availability of the peer reviewers’ comments or staff’s responses. Rather, those requirements would have prohibited the Board from adopting the regulation if a peer reviewer found that the Board failed to demonstrate that a scientific portion of the proposed rule is based upon sound scientific knowledge, methods, and practices, and the Board had not responded to that finding. Health and Safety Code §57004(d)(2). No reviewer made such a negative finding. See Peer Review Comments and Responses, September, 2004, p. ii.

Regarding what the commenter characterizes as the informal “updating” of the ISOR’s cost and benefit estimates, it is true that during the 45-day period, in response to comments from this commenter’s consultants, the Board released to those consultants revised cost estimates that affect several tables in the ISOR. (Contrary to commenter’s footnote 14 see August 16, 2004 email exchange between Tom Austin (Sierra) and Paul Hughes (ARB)). As stated in releasing an addendum reflecting those changes on September 10, 2004, the revisions supplemented but did not alter the fundamental conclusions presented in the ISOR. As a result, the addendum did not change the proposed regulatory text. If we were to take this comment at face value, the ARB could never accept and respond to negative comments in a way that questioned assumptions contained in the ISOR. To do so would risk restarting the 45-day clock once, twice, or ad infinitum. This makes no sense, and would do violence to the function of the APA, i.e., to take and respond to comment within a defined period. See the observation in Rybachek v.

U.S. EPA (1990) 904 F.2d 1276, 1286 “…either the comment period would continue in a never-ending circle, or, if the EPA chose not to respond to the last set of public comments, any final rule could be struck down for lack of support in the record” [citations omitted].

Alternatively here, staff arguably could have responded to the commenter’s comments as a report to the Board at the hearing, providing the commenter and the public with only a 15-day comment period per Government Code §11347.1. Instead, staff quickly examined errors brought to its attention, ensured that revised information was as correct and complete as possible, relayed that information to the commenter, and sought additional public comment on the revised information as far in advance of the hearing as possible.

The public (including this commenter) then had an additional, formal 15-day comment period, and as a practical matter had nearly an additional month between the end of the hearing on September 24, 2004, and the start of that 15-day comment period on October 19, 2004. The revised estimates were thus subject to nearly two months of public review; even more for the commenter This comports with both the letter and the spirit of the APA. See also Western Oil & Gas. Assoc. v. Air Resources Board (WOGA) (1984) 37 Cal.3d 502 at 526 (holding pre-Gov. Code Section 11346.7 APA allowed four-day period to review and comment on a full staff report developed for a complex ARB rulemaking.)

555. Comment: The staff report claims support from other studies and evidence that have not been placed in the rulemaking file or identified with sufficient specificity to permit public review. Alliance (Appendix H).

Agency Response: The ITS work that the commenter mentions was not drawn on for staff's development of the regulation or the related assumptions (e.g., assumptions related to cost pass-through). The ITS work is briefly mentioned in the ISOR and technical support document in a supplemental fashion under "Other Considerations." Staff was hopeful that the ITS reports would provide considerable insight on the behavior of the automotive industry that would in turn help with its analysis. However, the reports were not sufficiently quantitative to rely on for staff's development of the regulation and were therefore not relied on for the development of the regulations including the proposed standards, estimated costs of regulation, impacts on vehicle pricing, pay-back periods, etc. At most, staff’s brief review of these reports “…help put the economic impact analysis into perspective.” ISOR p. 191. See also the response to comment 482.

Even if one could find that the ITS work was more than a tangential reference, the ITS documents were subject to additional public comment per Government Code §11347.1. See Attachment II to 15-day Notice, items 11-16.

With respect to the existence of more than one version of the document, ARB staff provided industry with different versions of the draft reports as they became available. Again, providing such draft reports was arguably not required under the Public Records Act, but was provided anyway to this commenter. It is not unusual for contractors to make revisions to the draft with the intent of improving the document. In any event, the commenter had and exercised the opportunity to comment during the 45-day comment period on what it perceived to be the shortcomings of at least the draft version as a potential basis for the regulations, though for the above reasons these comments are largely irrelevant.

Finally, it was entirely appropriate to base much of ARB staff analysis of technology costs and controls upon the draft NESCCAF study cited by the commenter. See Agency Response to Comments 150 and 228. Given the sheer volume and depth of comments on this topic (see comments and responses 207 through 242), clearly this commenter had more than enough information to determine the basis of ARB’s cost estimates. Any argument to the contrary goes solely to the sufficiency of evidence in the record to support the adopted regulations, not to whether ARB had an obligation under the APA to obtain and provide all data on which that draft study relied, or in turn upon additional data on which that data relied, etc. To rely in part on outside experts’ results that in turn were based on the foremost consultants to the auto industry comes nowhere close to an improper delegation of power. Instead, staff here properly exercised its judgment to conclude that the NESCCAF study results were reliable.

556. Comment: A postponement of the public hearing is reasonable and consistent with the legislative rulemaking schedule, and essential to comply with the APA. Alliance (Appendix H).

Agency Response: Postponing the hearing was not essential to complying with the APA. First, the commenter cites no APA provision requiring requests for postponement to be granted, and we find none. Second, the ARB did carefully evaluate the commenters’ two such requests, and though not specifically expressed in our responses, given the minimal time remaining after September 24, 2004 to process at least one period and potentially more 15-day change comment periods, postponement could easily have rendered impossible ARB’s ability to meet its January 1, 2005 statutory deadline.

Finally, there is no question here that ARB did consider all relevant matter, including negative evidence provided by this and other commenters – including comment on the “Addendum” and “Review” documents of concern – before taking final action to adopt the regulations by Executive Order G-05-061. This is entirely consistent with the APA, since “to restrict the agency to evidence produced at the time and place specified in the public notice would generate undesirable inflexibility.” California Optometric Association v Lackner, 60 Cal.App.3d 500, 508 (3^rd. Dist. 1976).

(2). Requirements of the California Environmental Quality Act

557. Comment: CEQA applies to this rulemaking. Alliance (Appendix H).

Agency Response: The ARB agrees that the California Environmental Quality Act applies to this rulemaking.

558. Comment: The 1978 program certification does not apply to this rulemaking. Alliance (Appendix H).

Agency Response: The ARB disagrees, and finds that the Certified Regulatory Program granted by the Resources Agency in 1978 applies to this rulemaking.

First, contrary to the commenter’s assertion, this rulemaking furthers the protection and enhancement of ambient air quality in California. The staff analysis shows that there will be a positive impact on criteria pollutant emissions in California. See Addendum pp. 17-18 and Resolution 04-28 p. 14, findings.

Second, the rulemaking will reduce California’s passenger vehicle contribution to global greenhouse gases. This reduction will have a small but measurable effect on lowering global greenhouse gas emissions. See Agency Response to Comment 95. Combined with greenhouse gas reductions from vehicles sold in other states likely to adopt California’s standards under Clean Air Act §177, and potential reductions from the federal fleet, it is clear that directionally the reductions in greenhouse gases achieved by this rulemaking are likely to reduce temperatures in California to some extent, however small, and will therefore help improve ambient air quality by reducing the frequency and severity of ozone episodes and resulting health impacts.

Finally, even if this rulemaking were not considered sufficiently related to ambient air quality, “it appears the Legislature intended a state agency’s certified regulatory program to remain in force notwithstanding subsequent additions and amendments to the program, unless and until the Secretary withdraws certification.” Mountain Lion Foundation v. Fish and Game Commission, 16 Cal.4^th 105, 128 (1997) (holding endangered species delisting decision covered within program certified before California Endangered Species Act enacted). This is further supported by the placement of new Health & Safety Code section 43018.5 within the other mobile source authority sections in Part 5 of Division 26, and the cross-reference in that section (§43018.5(e)) to the Board’s existing passenger vehicle regulations. Against this textual placement, there is nothing in the text of AB 1493 to indicate that the Legislature intended these regulations to be subject to any environmental review beyond the Certified Regulatory Program that has governed ARB’s mobile source rulemaking for over 25 years.

Further support is provided by legislation enacted subsequent to certification of ARB’s regulatory program. For example, expansion of ARB’s authority of toxic air contaminants (see e.g. Health & Safety Code section 39667) in 1983 simply specified additional contaminants for ARB to control. Though these air toxic contaminants – like greenhouse gases – are not criteria pollutants for which ambient air quality standards are established, there has been no question that ARB rulemakings to control air toxics also fall under its Certified Regulatory Program. Given this evolution of ARB’s regulatory program, the focus of the Certified Regulatory Program is more properly ARB’s mobile and other source control program as a whole. Greenhouse gases are simply additional air contaminants (defined at Health & Saf. Code section 39013) that the Legislature has required ARB to regulate within its longstanding passenger vehicle regulatory program.

559. Comment: If the 1978 certified program rules applied to this proceeding, the current process and the record would not comply with CEQA and ARB’s Title 17 regulations because it fails the analytical requirements under the Board’s CEQA Regulations. ARB cannot make a negative declaration because the record contains credible cost estimates different from ARB’s, and because the CARBITS model predicts increased criteria pollutant emissions. Therefore, ARB must consider and approve feasible alternatives or mitigation measures, like those contained in the commenter’s principal comments. Alliance (Appendix H).

Agency Response: This comment reflects a misunderstanding of the Board’s obligations under its certified regulatory program. The commenter argues that because they have introduced certain evidence into the record, there exists a “fair argument” of a significant adverse environmental impact, and therefore an EIR or its certified program equivalent must be prepared. Even if this were true, the ARB has satisfied this requirement by following its Title 17 regulations to prepare a staff report, which, under its Certified Regulatory Program, serves as the functional equivalent of an environmental impact report (EIR). ARB is not here adopting a negative declaration or functional equivalent thereof, and is not asserting that doing so would satisfy its CEQA obligations.

We assume that the potential adverse environmental impacts of concern to the commenter are the adverse emissions impacts claimed to result from the “fleet turnover effect” and the “rebound effect.” We believe that the discussion in Section 12.0 of the ISOR and its Addendum – and its reference to and reliance on the CARBITS model, rebound effect, and Fuel Cycle Benefits – together satisfied the ARB’s obligations to consider the potential adverse emissions impacts resulting from the fleet turnover effect. That Section of the ISOR (III.A.2.i(3)) estimated the potential overall emissions impact of the staff’s proposal, and expressed the staff’s conclusion that the fleet turnover effect will play a minimal role under the staff proposal. The principal economic and feasibility analysis used for this and countless previous ARB regulations find no fleet turnover effect, where as here increased costs are absorbed into already rising new vehicle costs.

While the “fair argument” principle is relevant to determining what claimed adverse environmental impacts need to be fully analyzed by an agency operating under a certified program, it is not relevant to the question of what feasible mitigation measures and alternatives may need to be considered once the agency has determined whether the proposal will result in significant adverse environmental impacts. After extensive analysis

– both in the ISOR and Addendum and in response to significant environmental issues raised (see e.g. Agency Response to Comments 418 through 477) the ARB has determined that the combined effects from fleet turnover, rebound, and upstream emissions will not cause the greenhouse gas regulations to result in adverse emissions impacts. See Response to Comments Raising Significant Environmental Issues, Executive Order G-05-061, Attachment 3.

As a result, the Board is not obligated to identify or implement feasible mitigation measures or alternatives. The commenter seems to argue that the identification and implementation of such measures and alternatives is required where a party has made a “fair argument” that there could be adverse impacts, despite the agency’s environmental analysis and conclusion that these adverse impacts will not occur. CEQA imposes no such requirement.

560. Comment: Regardless of the time limits specified for rulemakings under the general terms of the APA, CEQA requires an additional 30-day comment period if any “significant” changes occur after the initial comment period is completed. (Citations.) Alliance (Appendix H).

Agency Response: This comment does not identify the significant changes or new information added for which ARB has allegedly failed to provide a 30-day comment period. More importantly, this comment was submitted before the initial public comment period and hearing was completed, so the comment appears not to apply to this rulemaking. In addition, the asserted 30-day comment period applies only to draft EIRs and negative declarations, not to the 45-day and 15-day comment periods that are the only comment periods provided under and required by ARB’s certified regulatory program. Even if the 30-day comment period did apply, the initial environmental analysis in the ISOR and the subsequent Addendum were subject to 45 and 30 days of formal comment, respectively. And as a practical matter, the commenter had additional weeks to consider the Addendum for comment; see Agency Response to Comment 554.

561. Comment: If the 1978 certified program rules applied to this proceeding, the current process and the record would not comply with CEQA and ARB’s Title 17 regulations because it fails the procedural compliance requirements of delegation. The Board is the decision maker under CEQA, and must respond to comments in writing before approving the project. Alliance (Appendix H).

Agency Response: Under Health and Safety Code sections 39515 and 39516, any authority the Board has may be delegated to the Executive Officer, and any authority that may be delegated is to be conclusively presumed to have been delegated unless the Board reserves the power to itself in writing.

The Board’s regulation on responses to environmental assessments – section 60007(a), title 13, CCR – provides in part:

(a) If comments are received during the evaluation process which raise significant environmental issues associated with the proposed action, the staff shall summarize and respond to comments either orally or in a supplemental written report. Prior to taking final action on any proposal for which significant environmental issues have been raised, the decision maker shall approve a written response to each such issue.

In Resolution 04-28, the Board made clear that it was “initiating steps towards final adoption,” “subject to further environmental analysis.” It then directed the Executive Officer, after going through the “15-day notice” supplemental comment process, to:

then take appropriate final action with the adoption and amendments in this rulemaking, after preparing a written response to all comments received that have raised significant environmental issues, and assuring that all feasible mitigation measures or feasible alternatives available that would substantially reduce any significant adverse environmental impacts have been incorporated into the final action.

The Executive Officer took final action modified amendments by issuing Executive Order G-05-061. Attachment 3 thereto consisted of an ARB Staff Response to Comments Raising Significant Environmental Issues Regarding the Proposed Rulemaking to Adopt Motor Vehicle Greenhouse Gas Regulations. In the Executive Order, the Executive Officer expressly approved each of the written responses in Attachment 3.

The Board, in implementing its own regulation, clearly intended that the Executive Officer would be the ultimate decision-maker in this rulemaking. Section 60007(a) refers to final action by “the decision maker,” not by “the Board.” Under these circumstances, adoption of the Executive Order by the Executive Officer – after approving the responses to environmental issues – accordingly constitutes final action by the decision-maker consistent with the ARB’s regulation.

562. Comment: If the 1978 certified program rules applied to this proceeding, the current process and the record would not comply with CEQA and ARB’s Title 17 regulations because it fails the procedural compliance requirements of consultation and timing. ARB was required to consult with state and federal agencies, such as the California Highway Patrol (CHP) and the National Highway Traffic Safety Administration (NHTSA). Alliance (Appendix H).

Agency Response: Neither CHP nor NHTSA have jurisdiction by law over the proposed activity, here reducing greenhouse gas and other emissions from motor vehicles. Neither do those agencies have authority over air as a resource.

CHP does have jurisdiction over those aspects of the Board’s program that affect enforcement of motor vehicle regulations, as provided in Appendix B of the CEQA Guidelines cited by the commenter. The Board regularly consults with CHP concerning proposed ARB regulations that may impact CHP’s enforcement resources. Here, however, there was no reason to believe that in proposing regulations to control greenhouse gases – which require manufacturer certification with ARB, but which neither require nor provide for any CHP enforcement role – that CHP should be consulted. Similarly, whatever role NHTSA may have concerning traffic safety and fuel economy, there was no reason to consider consulting NHTSA concerning a regulation that targets greenhouse gas emissions, which are not under NHTSA’s authority.

563. Comment: If the 1978 certified program rules applied to this proceeding, the current process and the record would not comply with CEQA and ARB’s Title 17 regulations because it fails the procedural compliance requirements of timing. ARB has not provided a 30-day comment period for CARBITS, cost and price estimates loaded into CARBITS, CARBITS outputs, the method by which CARBITS cost inputs were developed, or the staff report “Addendum” published September 10, 2004. Alliance (Appendix H).

Agency Response: The ARB disagrees with this comment, as ARB fully complied with both the letter and spirit of the APA and CEQA in this rulemaking. As an initial matter, the asserted 30-day comment period applies only to draft EIRs and negative declarations, not to the 45-day and 15-day comment periods that are the only comment periods provided under and required by ARB’s certified regulatory program. Even if the 30-day period did apply, the commenter was provided with a 45-day period to comment on the initial environmental review provided in the staff report. This included, for CARBITS, the Technical Support Document on Other Considerations, released in August 2004, containing a 34-page Appendix that describes CARBITS in considerable detail. The Appendix explains, among other things, how CARBITS takes input and produces output. Section 12.1.B. of the ISOR explains that the price increases used in the CARBITS scenario are set equal to the cost increases for the technologies reported in Section 6 of the ISOR.

A full 30 days of formal comment period was provided for the Addendum, and as a practical matter the commenter had additional weeks to consider the Addendum for comment. (See Agency Response to Comment 554.) This included revised-Table 12.1-2 of the Addendum, which reports the price increases used in the regulation scenario for CARBITS. The text just above the revised table explains how the cost inputs were developed. Revised-Table 12.1-3 shows how the price increases compare to the baseline prices. Revised-Table 12.1-6 and Revised-Table 12.1-7 of the Addendum report the CARBITS output.

564. Comment: With respect to the substance of the analysis under CEQA, the Alliance believes that the Board must address the effects of the proposed rule on motor vehicle safety. Alliance (Appendix H – Attachment).

Agency Response: The ARB disagrees that CEQA requires the Board’s rulemaking to analyze potential effects on motor vehicle safety. The CEQA Guidelines make clear that a “significant effect on the environment,” i.e., the effects that ARB must analyze under its certified regulatory program (see 17 CCR §60005(a)), are those that could result in a substantial adverse change in any of the physical conditions within an area affected by the project. 14 CCR Sections 15382, 15360, 15358. Motor vehicle or traffic safety in the CEQA context typically concerns changes in physical conditions such as increases in traffic, air pollution, danger to pedestrians, lack of sight distance, or physical obstructions or obstacles. CEQA is concerned with the health and safety problems caused by such physical changes. 14 CCR Section 15126.2(a). Even assuming that the type of safety impacts that the commenter suggests were reasonably foreseeable (though ARB views these as speculative at best and therefore not requiring analysis (14 CCR §15064(d)(3) – see Agency Response to Comments 254 and 329) such impacts would not even rise to the level of an indirect impact that would require CEQA analysis (14 CCR §15064(d)(2)) because they are not a physical change. 14 CCR Section 15358(b).

Nevertheless, as cited above, the Board did respond to safety concerns elsewhere in this FSOR pursuant to its responsibilities under the APA. See also Agency Response to Comment 562.

Download 2.03 Mb.

Share with your friends: