APPENDIX G

EVIDENCE OF PUBLIC PARTICIPATION; PUBLIC 

COMMENTS AND NEVADA’S RESPONSES
(This page left intentionally blank.)
901 S. Stewart Street, Suite 4001 • Carson City, Nevada 89701 • p: 775.687.4670 • f: 775.687.5856 • ndep.nv.gov

NOTICE OF PUBLIC COMMENT PERIOD BEGINNING FEBRUARY 1, 2013

AND A PUBLIC HEARING ON MARCH 6, 2013, IF REQUESTED

Conducted by the

Nevada Division of Environmental Protection, Bureau of Air Quality Planning

Pursuant to the public hearing requirements in Title 40 of the Code of Federal Regulations Part 51 

section 102, the Nevada Division of Environmental Protection (NDEP) is issuing the following notice and 

is taking comment on a proposal to certify that the existing Nevada State Implementation Plan (SIP) is 

adequate for implementation of the 2008 8-hour ozone national ambient air quality standards (NAAQS). 

On March 27, 2008, the United States Environmental Protection Agency (US EPA) revised the 8-hour 

primary and secondary ozone NAAQS to a level of 0.075 parts per million (ppm) (73 FR 16436). When 

US EPA promulgates a new standard or revises an existing standard, Clean Air Act (CAA) section 

110(a)(1) requires each state to submit a plan showing it has the authority and programs needed to 

implement, maintain, and enforce the standard, regardless of designation status; section 110(a)(2) lists 

the elements that must be addressed in the plan. Because many of the section 110(a)(2) elements 

relate to the general information and authorities that constitute the infrastructure of a state’s air 

quality management program, the 110(a) plans are generally referred to as “infrastructure SIPs.” 

Nevada’s 2008 ozone NAAQS infrastructure SIP is a compilation of Nevada’s existing authorities and 

programs to demonstrate that Nevada has a plan in place to address the 2008 ozone NAAQS. Nevada’s 

ozone infrastructure SIP will be submitted to US EPA in April 2013.

The NDEP is responsible for developing and implementing state plans in the 15 rural counties of 

Nevada. Clark County and Washoe County have their own air quality agencies, which are responsible 

for their respective counties. The NDEP’s portion of the Nevada ozone infrastructure SIP and related 

materials are available on the NDEP website at http://ndep.nv.gov/admin/public.htm, click on “Air 

Quality Planning.” Access to the draft document may also be obtained by contacting Adele Malone at 

NDEP, 901 S. Stewart Street, Suite 4001, Carson City, NV 89701; (775) 687-9356; or e-mail to 

amalone@ndep.nv.gov.

Persons wishing to comment on the draft plan or to request a public hearing should submit their 

comments or request in writing either in person or by mail or fax to Adele Malone at the above address 

or by fax at (775) 687-6396. A request for a hearing must be received by February 26, 2013. 

Written comments will be received by the NDEP until 5:00 PM PST, March 6, 2013 and will be 

retained and considered.

Upon receipt of a valid written request, the NDEP will hold a public hearing in Carson City on:

March 6, 2013

10:00 a.m. to 12:00 p.m.

Great Basin Conference Room, 4th Floor 

901 South Stewart Street

Carson City, Nevada

An agenda will be posted on the NDEP web site at least 3 working days before the hearing. Oral 

comments will be received at the Hearing. If no request for a public hearing is received by February 

26, 2013, the hearing will be cancelled. Persons may check on the status of the hearing on the NDEP 

web site at http://ndep.nv.gov/admin/public.htm, click on “Air Quality Planning,” or you may call the 

NDEP Bureau of Air Quality Planning at (775) 687-9349.

This notice has been published in the Las Vegas Review-Journal and the Reno Gazette Journal newspapers. It has been 

posted at the NDEP offices in Carson City and Las Vegas, at the State Library in Carson City and at County libraries 

throughout Nevada. Members of the public who are disabled and require special accommodations or assistance at the 

hearing are requested to notify Adele Malone or Cathy Douglas (775-687-9349) no later than 3 working days before the 

hearing. 01/29/2013 





NOTICE OF CANCELLATION OF PUBLIC HEARING ON March 6, 2013

Nevada Division of Environmental Protection

Bureau of Air Quality Planning

Pursuant to the public hearing provisions in Title 40 of the Code of Federal Regulations Part 51 

section 102, the Nevada Division of Environmental Protection (NDEP) is cancelling the following 

public hearing because no request for a hearing was received:

March 6, 2013

10:00 a.m. to 12:00 p.m.

Great Basin Conference Room, 4th Floor

901 South Stewart Street

Carson City, Nevada

The NDEP’s draft Ozone Infrastructure State Implementation Plan (SIP) and related materials are 

available on the NDEP website at http://ndep.nv.gov/admin/public.htm, click on “Air Quality 

Planning.” Persons may also check on the status of Nevada’s Ozone Infrastructure SIP revision by 

telephone at (775) 687-9356.
Public Comments and Nevada’s Responses

(Only one comment was received)

March 6, 2013

VIA FAX TO (775) 687-6369 AND E-MAIL TO AMALONE@NDEP.NV.GOV

Adele Malone

Nevada Division of Environmental Protection

901 South Stewart Street

Suite 4001

Carson City, Nevada 89701

RE: The Nevada Division of Environmental Protection Portion of the 

Nevada Infrastructure State Implementation Plan for the 2008 Ozone 

NAAQS

Dear Ms. Malone:

On behalf of the Sierra Club and its thousands of members who are 

adversely impacted by Nevada sources of ozone pollution, we submit the 

following comments on the proposed rule on the Nevada Division of 

Environmental Protection Portion of the Nevada State Implementation Plan 

(“SIP”) for the 2008 Ozone National Ambient Air Quality Standards (“NAAQS”): 

Demonstration of Adequacy, (“SIP Proposal”). As explained in detailed below,

Nevada must revise its SIP Proposal in order to meet the requirements of the 

Clean Air Act (“CAA”). 

As the United States Environmental Protection Agency (“EPA”)

recognizes, breathing air containing ozone can reduce lung function and increase 

respiratory symptoms, including aggravating asthma and other respiratory 

conditions. Ozone may also contribute to premature death, especially in people 

with heart and lung disease. Moreover, ozone damages vegetation and trees, 

including forests, parks, and crops. EPA estimates that the 2008 8-hour ozone 

NAAQS has the potential to avoid 260-2,000 premature deaths annually as of 

2020. All of these benefits in ozone reduction are estimated to save $3 to $17 

billion per year.1

 In fact, 2011 and 2012 ozone ambient monitoring data indicate 

that these estimates of the health benefits of reducing ozone exposure by EPA 

may have been low.

 1

 EPA, FACT SHEET: FINAL REVISIONS TO THE NATIONAL AMBIENT AIR QUALITY 

STANDARDS FOR OZONE, 1-3 (2008), 

http://www.epa.gov/glo/pdfs/2008_03_factsheet.pdf.
Ms. Malone

Page 2 of 9

March 6, 2013

I. THE INFRASTRUCTURE SIP MUST INCLUDE ENFORCEABLE 

EMISSION LIMITS TO ENSURE ATTAINMENT AND 

MAINTENANCE OF THE NAAQS IN COUNTIES, WHICH 

CURRENTLY VIOLATE THE NAAQS.

Clark County has design values above the 2008 ozone NAAQS, 0.075 parts 

per million (“ppm”), according to EPA’s Air Quality System (“AQS”) data, yet 

this county is currently designated attainment. Nevada fails to address the 

increasing ozone levels in Clark County that EPA has determined are unhealthy 

and potentially deadly in its SIP Proposal. If attainment areas are violating the 

NAAQS, it logically follows that the SIP lacks adequate emission limits to attain 

and maintain the NAAQS. In particular, Clean Air Act Section 110(a)(2)(A) 

requires that each SIP must “include enforceable emission limits and other 

control measures, means, or techniques... as well as schedules and timetables for 

compliance, as may be necessary or appropriate to meet the applicable 

requirements of this chapter.” In other words, the Nevada’s SIP Proposal fails the 

most basic Clean Air Act requirement, to ensure that air pollution levels meet or 

are below the NAAQS. 

In particular, Clark County, which has a population of close to two million 

people, is currently violating the 2008 8-hour ozone standard based on 2010 -

2012 design values as evidenced by the data in EPA’s Air Monitor Reports.2

Nevada has not specified how it plans to address this violating county, which is 

designated attainment, and specifically has not proposed additional enforceable 

emission limits to be added to its SIP to address these violations. The 2008 8-hour 

ozone monitor values are listed below for the violating county from 2010 to 2012. 

 2 See EPA, NEVADA MONITOR VALUES REPORTS FOR OZONE FOR 2010-2012, 

http://www.epa.gov/airdata/ad_rep_mon.html (last visited Mar. 2, 2013), 

attached hereto as Exhibit 1.
Ms. Malone

Page 3 of 9

March 6, 2013

Fourth Highest Monitor Values from Clark County and Three-Year Averages 

from 2010 to 2012 over 0.075 ppm

County 

(Monitor)

2010 2011 2012 Average

Clark

(#320030043)

0.07 0.078 0.077 0.075

Clark

(#320030071)

0.073 0.077 0.078 0.076

Clark

(#320030073)

0.071 0.077 0.078 0.075

Clark

(#320030075)

0.074 0.077 0.079 0.076

Clark

(#320031019)

0.074 0.074 0.077 0.075

Clark 

(#320037771)

0.079 0.079 0.085 0.081

3

Nevada cannot avoid its obligation to implement the 2008 ozone NAAQS 

by claiming the 2012 data are not technically final. First, these numbers will

become final no later than May 1, which is less than two months away. Because 

of this short time period, it is not likely that Nevada will submit its Infrastructure 

SIP to EPA until after the data are final. In addition, it will certainly be after May 

1, 2013 by the time EPA takes final action on Nevada’s SIP Proposal. Therefore, 

Nevada and EPA will not be able to rationally hide behind the May 1, 2013 date 

for certification of annual ambient monitoring data for 2012. 

Second, because it is clear from EPA data that Clark County will be 

violating the 2008 8-hour ozone NAAQS, Nevada should complete its quality 

assurance/quality control (“QA/QC”) work on the 2012 data now, to the extent 

it has not done so, and submit its findings as a response to these comments. 

Nevada should not try to “game the system” by choosing to wait to perform 

QA/QC analysis until after it takes final action on this Infrastructure SIP, 

especially when such a game can result in the death of vulnerable Nevadans. 

Third, the 2012 values used above are from the first three quarters of 2012. 

The form of the 2008 ozone NAAQS is the fourth highest 8-hour daily maximum, 

not an annual average or a percentage. Thus, if a fourth highest value occurs in 

the first three quarters of a year to push the design value over the NAAQS, the 

monitoring values in the fourth quarter cannot change that. That is the situation 

here. Clark County has 2010 – 2012 design values above the 2008 NAAQS using 

data from the first three quarters of 2012. The first three quarters of 2012 have 

 3 Id.
Ms. Malone

Page 4 of 9

March 6, 2013

final data. It is only annual averages which may not become final until May 1, 

2013. Thus, Nevada has no justification to allow the people in Clark County with 

2010 – 2012 design values above the NAAQS to continue to be exposed to 

dangerous air pollution with no hope of regulatory action. 

Importantly, Nevada could cost effectively alleviate these harmful levels 

of ozone, thereby preventing damage to human health and the environment, by 

requiring pollution control devices and placing limits on electric generating units 

“(EGUs”). Nitrogen Oxides (“NOx”), a precursor to ozone, can be reduced costeffectively through installation of selective catalytic reduction (“SCR”) 

technology at EGUs that do not already have SCR technology and by imposing 

short-term stringent emission limits on all EGUs. In fact, all EGUs should have 

emission limits of 0.03 pound per MBtu based on an eight-hour averaging time 

that applies at all times, including during startup and shut down. This limit is 

based on actual emission rates that at least two coal-fired EGUs, the Ghent and 

Trimble power plants, have achieved when the operators chose to achieve these 

low emission rates. This would be especially useful in Clark County, which is 

suffering from dangerously high ozone limits. An emission limit of 0.03 pounds 

per MBtu could be placed on Reid Gardner Generating Station, resulting in 

significant NOx reductions in Clark County. 

II. THE INFRASTRUCTURE SIP FAILS TO PREVENT NEVADA 

FROM SIGNIFCANTLY CONTRIBUTING TO 

NONATTAINEMENT, AND INTERFERING WITH THE 

MAINTENANCE OF THE 2008 OZONE NAAQS IN OTHER 

STATES.

Nevada fails to sufficiently address how it plans to prevent its emissions 

from significantly contributing to nonattainment, and from interfering with the 

maintenance of the 2008 ozone NAAQS in other states. This requirement is 

commonly known as the Good Neighbor Provision and is found in Section 

110(a)(2)(D)(i)(I) of the CAA. Nevada’s Infrastructure SIP must prohibit any 

source or other type of emission activity in one state from contributing 

significantly to nonattainment or interfering with maintenance of the NAAQS in 

another state.4

 Nevada does not provide an adequate analysis that it is not 

contributing to other states’ ozone emission levels and that its emission reduction 

programs are adequate to redress any significant contribution to other states. 

Nevada’s SIP Proposal is inadequate and must be revised to satisfy its 

requirement under Section 110(a)(2)(D)(i).

More specifically, Nevada incorrectly holds that EPA must inform the 

state of its pollution contribution to downwind states before it must take any 

action. Nevada relies upon a memorandum by Gina McCarthy regarding the 

 4 See 42 U.S.C. 7410(a)(2)(D)(i)(I).
Ms. Malone

Page 5 of 9

March 6, 2013

D.C. Circuit’s decision in EME Homer City Generation, LP v. EPA (“Homer City”).

5

On August 21, 2012, the D.C. Circuit vacated the Cross-State Air Pollution Rule 

(“CSPAR”).

6 In response, Ms. McCarthy wrote while EPA considers the decision 

wrongly decided and petitioned for rehearing, EPA will not be making findings 

that states failed to meet their requirements under Section 110(a)(2)(D)(i)(II).7

EPA’s proposed reliance, and thereby Nevada’s reliance, on Homer City is 

misplaced for several reasons. 

First, this rulemaking only impacts sources of pollution in Nevada. 

Therefore, any final action on this rulemaking should be appealable to the Ninth 

Circuit, not the D.C. Circuit. EPA should not engage in “forum shopping” by 

sending a rule that only impacts polluters in Nevada to the D.C. Circuit rather 

than the Ninth Circuit. Thus, Nevada should not voluntarily follow Homer City,

which EPA has said was incorrectly decided. 

Indeed, Homer City was incorrectly decided. The majority opinion in 

Homer City reached a conclusion that was inconsistent with previous D.C. Circuit 

decisions and ignored the plain language of the statute. Therefore, it is not 

binding, nor persuasive with regard to Nevada’s SIP Proposal. The D.C. Circuit 

wrongly held that EPA cannot promulgate a Federal Implementation Plan 

(“FIP”) to address the requirements of the Good Neighbor Provisions until 

sometime after EPA has quantified emissions for all states that must be 

prohibited under the provision.8

The Homer City opinion conflicts with the D.C. Circuit’s decision in North 

Carolina which held that upwind states’ obligations under Section 110(a)(2)(D)(i) 

must be harmonized with the NAAQS attainment deadlines for downwind 

states.9 The North Carolina court required EPA to “decide what date, whether 

2015 or earlier, is as expeditious as practicable for states to eliminate their 

significant contributions to downwind nonattainment.”10 And in the court’s 

subsequent remand decision, it made clear that it did “not intend to grant an 

indefinite stay” for EPA to correct Clean Air Interstate Rule’s (“CAIR”) flaws.11 In 

response to North Carolina’s mandate, EPA incorporated a FIP into the Transport 

 5 See SIP PROPOSAL at 5; Homer City, 696 F.3d 7, 11 (D.C. Cir. 2012).

6 Homer City, F.3d at 11. 7 See Gina McCarthy, Memo to EPA Air Division Directors, Regions 1-10, Next Steps 

for Pending Redesignation Request State Implementation Plan Actions Affected by 

Recent Court Decision Vacating the 2011 Cross-State Air Pollution Rule , 2-3 (Nov. 19 

2012), http://www.epa.gov/airtransport/pdfs/CSAPR_Memo_to_Regions.pdf, 

[hereinafter McCarthy Memorandum]. Sierra Club is currently challenging the 

McCarthy Memorandum in court. 8 Homer City, 696 F.3d at 28.

9 See North Carolina v. EPA, 531 F.3d 896, 912, on rehearing, 550 F.3d 1176 (2008).

10 Id. at 930.

11 See North Carolina, 550 F.3d at 1178.
Ms. Malone

Page 6 of 9

March 6, 2013

Rule pursuant to Section 110(c).12 In disallowing this approach, the panel’s 

decision and EPA’s action here would conflict with the text of the Act13 and North 

Carolina.

14 If EPA finalized its proposal, it would be “granting an indefinite stay” 

of the three-year deadline in CAA Section 110(a)(1) and the two-year deadline in

Section 110(c)(1). Not only is this illegal, but it leaves the ozone transport issue 

unresolved, which will result in millions of people being subject to dangerous 

and unhealthy ozone levels, which can cause health problems, death, economic 

harm, and environmental damage.

Homer City also concluded that EPA violated the CAA by not calculating 

the required emissions reductions on a proportional basis as between upwind 

states.15 This conclusion is contrary to North Carolina’s holding that EPA need not 

determine each state’s individualized air quality impact on downwind states 

“relative to other upwind states.”16

Second, Nevada claims that regardless of the Homer City decision and the 

McCarthy Memorandum, Nevada’s current SIP does prevent significant 

contributions to nonattainment and interference with maintenance in downwind 

states. Nevada’s analysis in support of this claim is flawed. 

Nevada’s reliance on CAIR is misplaced and does not satisfy its 

obligations under the Good Neighbor provision. CAIR was meant to address the 

less stringent 1997 ozone NAAQS. When Nevada revises its Good Neighbor 

obligations, Nevada cannot rely upon CAIR. CAIR does not address the 

requirements of Section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS. 

It was not intended to address the 2008 ozone NAAQS but instead was intended 

to address the less stringent 1997 ozone NAAQS. Thus, Nevada’s Proposed SIP 

is inadequate, because it cannot rely on CAIR for emission reductions to meet the 

2008 ozone NAAQS.17

 12 See 42 U.S.C. 7410(c)(1) (requiring EPA to promulgate a FIP “at any time” 

within 2 years after a state fails to meet its SIP obligations).

13 Homer City, 696 F.3d at 45 (Rogers, J. dissenting).

14 The court’s erroneous ruling that states’ obligations to avoid significant 

contributions to nonattainment in other states must await the end of EPA 

rulemaking is wrong for reasons the dissent set out, and is especially harmful to 

the statutory program for ensuring timely attainment of air quality standards. As 

North Carolina recognized, but the panel overlooked, Congress recognized that 

time is of the essence when essential public health protections are at stake.

15 Homer City, 696 F.3d at 26-27

16 North Carolina, 531 F.3d at 908. See also Michigan v. EPA, 213 F.3d 663, 679 (D.C. 

Cir. 2000) (permitting use of uniform cost thresholds and the “ineluctabl[e]” 

result that small and large contributors could have the same amount of emissions 

reductions); Homer City, 696 F.3d at 59 (Rogers, J. dissenting).

17 See Proposed Rule on Kentucky’s 110(a)(1) and (2) Infrastructure Requirements 

for the 2008 8-hour Ozone National Ambient Air Quality Standards (NAAQS) 
Ms. Malone

Page 7 of 9

March 6, 2013

Furthermore, in 2008, the D.C. Circuit vacated CAIR, because it failed to 

require sufficient and timely reductions to meet the needs of neighboring 

downwind states.18 The D.C. Circuit has allowed CAIR to remain only until a 

replacement is created, because the court reasoned CAIR had clear benefits for 

public health and the environment that the court did not want to sacrifice.19

However, the D.C. Circuit clearly held that CAIR does not satisfy a state’s 

obligations under the Good Neighbor Provisions.20 Nevada cannot rely on any 

reductions from CAIR for any pollutant. Therefore, Nevada must correct this 

error before submitting its Infrastructure SIP to EPA.

Third, Nevada’s cursory analysis of whether its pollution affects other 

states is not sufficient to satisfy CAA Section 110(a)(2)(D)(i)(I). Nevada only 

performed a qualitative analysis. It should have performed a more substantive, 

quantitative analysis, using photochemical modeling, to demonstrate that it does 

not contribute significantly to nonattainment or interfere with maintenance of the 

NAAQS in another state. Throughout its perfunctory analysis, Nevada failed to 

assess whether it is contributing to pollution in other states. One obvious 

problem in Nevada’s analysis is its reliance on “prevailing winds” to determine 

if Nevada’s air pollution is affecting other states’ pollution levels.21 Relying on 

prevailing winds presents two problems for determining whether a state 

contributes to another state’s downwind pollution. The prevailing winds 

method reflects only what typically occurs and not variations. However, minor 

variations in wind patterns will affect the 8-hour ozone standard because a 

design value is made up of only 32 hours a year, i.e., 0.3% of the hours per year. 

Thus, even if the prevailing winds blew in one direction 99.7% of the time, they 

still would not demonstrate that Nevada is not significantly contributing to 

another state’s emission levels. Additionally, prevailing winds are recorded at 

very high altitudes, much higher than the typical stacks heights where the 

majority of ozone precursors are emitted. This means that Nevada’s analysis 

fails to consider where the pollution is being emitted and where the wind is 

blowing at these lower heights. These omissions in Nevada’s analysis render it 

arbitrary and thus not legally approvable by EPA.

 

“Infrastructure” State Implementation Plan (“SIP”), 78 Fed. Reg. 3867 (Jan. 17, 

2013) (disapproving in part Kentucky’s Infrastructure SIP for reliance on CAIR to 

satisfy requirements for the 2008 ozone NAAQS). 18 See North Carolina, 531 F.3d at 906 (stating CAIR had “more than several fatal 

flaws”). 19 See North Carolina, 550 F.3d at 1777-8.

20 Id.

21 PROPOSED SIP at 6.
III. THE INFRASTRUCTURE SIP MUST PROTECT VISIBILITY IN 

OTHER STATES.

In order for Nevada to meet its obligations under “Prong 4” of the Good 

Neighbor Provision, Nevada must protect visibility in other states.22 However 

Nevada fails to do so, because Nevada inappropriately relies on a FIP Best 

Available Retrofit Technology (“BART”) emission limits for NOx at the Reid 

Gardner Generating Station (“Reid Gardener’s FIP”) to help satisfy this 

requirement. This FIP is legally insufficient. The technology chosen for Reid

Gardner Generating Station in the FIP was a vastly inferior technology and does 

not meet the standard of BART. Because it does not meet the required standard, 

Nevada’s reliance on Reid Gardener’s FIP to help protect visibility in other states 

is misplaced. We incorporate all arguments made on this matter in Brief of 

Petitioners, Moapa Band of Paiute Indians v. EPA, No. 12-73388 (9th Cir. filed Feb. 

28, 2013) which fully explains why the Reid Gardener’s FIP is inadequate.23 For 

these same reasons, Nevada’s reliance on Reid Gardener’s FIP in support of CAA 

Section 110(a)(2)(D)(i)(II) is also inappropriate.

IV. THE INFRASTRUCTURE SIP MUST CONTAIN THE 2008 OZONE 

NAAQS.

The 2008 ozone NAAQS imposed a new 8-hour primary ozone standard 

of 0.075 ppm and a new secondary 8-hour standard to the level of .075 ppm 

based on the 3-year average of the annual 4th-highest daily maximum. Despite 

these new NAAQS, Nevada’s SIP approved regulations do not reflect the new

standards.

 22 See 42 U.S.C. 7410(a)(2)(D)(i)(II).

23 Attached hereto as Exhibit 2.
Ms. Malone

Page 9 of 9

March 6, 2013

V. CONCLUSION

For the reasons described above, the Nevada SIP is currently inadequate 

to achieve and maintain compliance with the 2008 ozone NAAQS. Nevada must 

correct these faults in order to be in compliance with the Clean Air Act. 

If you have any questions, we would be happy to discuss them with you. 

Thank you for considering these comments. We look forward to working with 

you to improve the air quality of Nevada.

Respectfully Submitted,

/s Robert Ukeiley

Robert Ukeiley

Law Office of Robert Ukeiley

507 Center Street

Berea, KY 40403

859-986-5402

rukeiley@igc.org

Counsel for Sierra Club 

Elizabeth Toba Pearlman

Consultant for Sierra Club

1523 27th Street, NW

Washington, DC 20007

(202) 643-4068

Etplaw@gmail.com
Exhibit 1
Page 4 of 7

Generated: March 6, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2010

Exceptional Events: Included (if any)

Page 4 of 7

Generated: March 6, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2010

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

4950 0.064 0.063 0.062 0.062 0 0.00 214 206 96 0 None 1 320010002 280 South Russell

Street

Fallon Churchill NV 09

8-HR RUN

AVG BEGIN

HOUR

6044 0.074 0.068 0.067 0.067 0 0.00 365 249 68 0 None 1 320030020 4701 Mitchell Street North Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

6175 0.074 0.073 0.069 0.068 0 0.00 365 257 70 0 None 1 320030022 Ne Of City-12101

Hwy 93/I15

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

6249 0.067 0.066 0.065 0.063 0 0.00 365 258 71 0 None 1 320030023 465 E. Old Mill Road,

Mesquite, Nv

Mesquite Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8730 0.073 0.071 0.07 0.07 0 0.00 365 364 100 0 None 1 320030043 4525 New Forest

Drive

Spring Valley Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8567 0.077 0.074 0.073 0.073 1 1.00 365 355 97 0 Included 1 320030071 7701 Ducharme Ave Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

2760 0.07 0.069 0.066 0.061 0 0.00 365 114 31 0 None 1 320030072 3525 N Valadez

Street

Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8677 0.074 0.071 0.071 0.071 0 0.00 365 360 99 0 None 1 320030073 333 Pavilion Center

Drive

Las Vegas Clark NV 09
Page 5 of 7

Generated: March 6, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2010

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

8657 0.082 0.075 0.074 0.074 1 1.00 365 360 99 0 Included 1 320030075 6651 W. Azure Ave Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8721 0.073 0.071 0.069 0.068 0 0.00 365 363 99 0 None 2 320030538 5483 Clubhouse

Dr-Winterwood, Las

Vegas

Sunrise Manor Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

6292 0.074 0.072 0.07 0.069 0 0.00 365 259 71 0 None 1 320030601 1005 Industrial Road Boulder City Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8694 0.075 0.074 0.074 0.074 0 0.00 365 361 99 0 None 1 320031019 T25s R59e S10 Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

2681 0.068 0.067 0.064 0.06 0 0.00 365 112 31 0 None 1 320031021 1562 Katie Ave Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8710 0.076 0.069 0.069 0.068 1 1.00 365 363 99 0 Included 1 320032002 1301b East Tonopah North Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

3071 0.084 0.083 0.081 0.079 9 25.70 365 128 35 0 None 1 320037771 Ries Rd, Spring

Mountain Youth

Camp, Mt. Charleston

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

3062 0.075 0.073 0.071 0.068 0 0.00 365 127 35 0 None 1 320037772 668 Gretta Ln, Indian

Springs

Not in a city Clark NV 09
Page 6 of 7

Generated: March 6, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2010

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

2692 0.08 0.074 0.074 0.073 1 3.30 365 112 31 0 None 1 320037773 11357 N. Decatur

Blvd., Las Vegas

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

2013 0.074 0.074 0.073 0.072 0 0.00 365 83 23 0 None 1 320037775 11480 Mt. Potosi

Canyon Rd., Las

Vegas

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

1974 0.071 0.07 0.07 0.069 0 0.00 365 81 22 0 None 2 320037775 11480 Mt. Potosi

Canyon Rd., Las

Vegas

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

4610 0.071 0.065 0.063 0.063 0 0.00 214 189 88 0 None 1 320190006 320 Hardie Lane Fernley Lyon NV 09

8-HR RUN

AVG BEGIN

HOUR

8492 0.071 0.069 0.067 0.067 0 0.00 365 353 97 0 None 1 320310016 301 A State Street,

Reno, Nv 89502

Reno Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8680 0.069 0.069 0.069 0.067 0 0.00 365 361 99 0 None 1 320310020 4110 De Lucci Lane,

Reno Nv 89502

Reno Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8662 0.077 0.074 0.07 0.07 1 1.00 365 359 98 0 None 1 320310025 684a State Route

341, Reno Nv 89521

Reno Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8730 0.073 0.069 0.069 0.068 0 0.00 365 365 100 0 None 1 320311005 750 4th St, Sparks,

Nv 89431

Sparks Washoe NV 09
Page 7 of 7

Generated: March 6, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2010

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

8743 0.067 0.063 0.062 0.062 0 0.00 365 365 100 0 None 1 320312002 855 Alder Drive,

Incline Village, Nv

89451

Incline

Village-Crystal

Bay

Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8718 0.073 0.07 0.069 0.068 0 0.00 365 363 99 0 None 1 320312009 325 Patrician Dr,

Lemmon Valley, Nv

89506

Lemmon

Valley-Golden

Valley

Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8263 0.077 0.069 0.069 0.069 1 1.10 365 338 93 0 None 1 320330101 Great Basin National

Park

Lehman Caves

National

Monument

White

Pine

NV 09

8-HR RUN

AVG BEGIN

HOUR

4552 0.067 0.066 0.065 0.064 0 0.00 214 187 87 0 None 2 325100002 3300 East Fifth St

(City Yard)

Carson City Carson

City

NV 09
Page 4 of 7

Generated: March 2, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2011

Exceptional Events: Included (if any)

Page 4 of 7

Generated: March 2, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2011

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

5019 0.063 0.056 0.054 0.054 0 0.00 214 209 98 0 None 1 320010002 280 South Russell

Street

Fallon Churchill NV 09

8-HR RUN

AVG BEGIN

HOUR

2997 0.078 0.074 0.071 0.07 1 2.90 365 125 34 0 Included 1 320030022 Ne Of City-12101 Hwy

93/I15

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

3342 0.067 0.061 0.059 0.059 0 0.00 365 139 38 0 None 1 320030023 465 E. Old Mill Road,

Mesquite, Nv

Mesquite Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8687 0.09 0.082 0.079 0.078 6 6.10 365 361 99 0 Included 1 320030043 4525 New Forest Drive Spring Valley Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8695 0.089 0.079 0.079 0.077 6 6.00 365 362 99 0 Included 1 320030071 7701 Ducharme Ave Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8720 0.088 0.081 0.08 0.077 4 4.00 365 361 99 0 Included 1 320030073 333 Pavilion Center

Drive

Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8533 0.079 0.079 0.077 0.077 8 8.30 365 353 97 0 Included 1 320030075 6651 W. Azure Ave Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8630 0.076 0.075 0.073 0.073 1 1.00 365 357 98 0 Included 2 320030538 5483 Clubhouse

Dr-Winterwood, Las

Vegas

Sunrise Manor Clark NV 09
Page 5 of 7

Generated: March 2, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2011

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

8377 0.075 0.075 0.074 0.073 0 0.00 365 345 95 0 None 1 320030540 4250 Karen Ave Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8635 0.081 0.071 0.07 0.07 1 1.00 365 358 98 0 Included 1 320030601 1005 Industrial Road Boulder City Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8715 0.083 0.08 0.079 0.074 3 3.00 365 362 99 0 Included 1 320031019 T25s R59e S10 Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8632 0.073 0.072 0.072 0.072 0 0.00 365 358 98 0 None 1 320032002 1301b East Tonopah North Las

Vegas

Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

5858 0.084 0.083 0.082 0.079 10 15.00 365 244 67 0 None 4 320037771 Ries Rd, Spring

Mountain Youth Camp,

Mt. Charleston

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

3008 0.082 0.082 0.08 0.08 8 23.40 365 125 34 0 None 4 320037776 Mt. Pass, State Hwy

160 Way To Pahrump

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

3238 0.072 0.07 0.066 0.066 0 0.00 365 135 37 0 None 4 320037777 650 Quartz Sandy Valley Clark NV 09
Page 6 of 7

Generated: March 2, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2011

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

3036 0.086 0.084 0.083 0.083 18 52.10 365 126 35 0 None 4 320037778 Southeast Of Las

Vegas, Near Comm

Towers In Henderson,

Nv

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

4743 0.08 0.079 0.074 0.072 2 2.20 214 194 91 0 None 1 320190006 320 Hardie Lane Fernley Lyon NV 09

8-HR RUN

AVG BEGIN

HOUR

8703 0.073 0.069 0.063 0.062 0 0.00 365 362 99 0 None 1 320310016 301 A State Street,

Reno, Nv 89502

Reno Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8734 0.073 0.07 0.067 0.066 0 0.00 365 365 100 0 None 1 320310020 4110 De Lucci Lane,

Reno Nv 89502

Reno Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8750 0.072 0.069 0.066 0.064 0 0.00 365 365 100 0 None 1 320310025 684a State Route 341,

Reno Nv 89521

Reno Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8755 0.081 0.076 0.068 0.067 2 2.00 365 365 100 0 None 1 320311005 750 4th St, Sparks, Nv

89431

Sparks Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8731 0.068 0.064 0.062 0.059 0 0.00 365 362 99 0 None 1 320312002 855 Alder Drive, Incline

Village, Nv 89451

Incline

Village-Crystal

Bay

Washoe NV 09
Page 7 of 7

Generated: March 2, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2011

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

8703 0.075 0.072 0.068 0.066 0 0.00 365 362 99 0 None 1 320312009 325 Patrician Dr,

Lemmon Valley, Nv

89506

Lemmon

Valley-Golden

Valley

Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8634 0.075 0.075 0.073 0.072 0 0.00 365 357 98 0 None 1 320330101 Great Basin National

Park

Lehman Caves

National

Monument

White

Pine

NV 09

8-HR RUN

AVG BEGIN

HOUR

4888 0.069 0.069 0.065 0.064 0 0.00 214 195 91 0 None 2 325100002 3300 East Fifth St (City

Yard)

Carson City Carson

City

NV 09
Page 4 of 7

Generated: March 2, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2012 (Annual statistics for 2012 are not final until May 1, 2013)

Exceptional Events: Included (if any)

Page 4 of 7

Generated: March 2, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2012 (Annual statistics for 2012 are not final until May 1, 2013)

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

4979 0.055 0.054 0.053 0.052 0 0.00 214 205 96 0 None 1 320010002 280 South Russell

Street

Fallon Churchill NV 09

8-HR RUN

AVG BEGIN

HOUR

4372 0.081 0.08 0.076 0.076 5 10.00 366 183 50 0 Included 1 320030022 Ne Of City-12101 Hwy

93/I15

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

4358 0.072 0.071 0.071 0.069 0 0.00 366 181 49 0 None 1 320030023 465 E. Old Mill Road,

Mesquite, Nv

Mesquite Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8735 0.082 0.079 0.078 0.077 5 5.00 366 364 99 0 Included 1 320030043 4525 New Forest Drive Spring Valley Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8722 0.079 0.078 0.078 0.078 4 4.10 366 360 98 0 Included 1 320030071 7701 Ducharme Ave Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8682 0.081 0.079 0.079 0.078 6 6.10 366 360 98 0 Included 1 320030073 333 Pavilion Center

Drive

Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8714 0.089 0.081 0.08 0.079 11 11.20 366 361 99 0 Included 1 320030075 6651 W. Azure Ave Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8745 0.08 0.078 0.076 0.074 3 3.00 366 363 99 0 Included 2 320030538 5483 Clubhouse

Dr-Winterwood, Las

Vegas

Sunrise Manor Clark NV 09
Page 5 of 7

Generated: March 2, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2012 (Annual statistics for 2012 are not final until May 1, 2013)

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

8730 0.078 0.077 0.076 0.073 3 3.00 366 363 99 0 Included 1 320030540 4250 Karen Ave Las Vegas Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8709 0.078 0.078 0.077 0.077 7 7.10 366 360 98 0 Included 1 320030601 1005 Industrial Road Boulder City Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8747 0.083 0.082 0.08 0.077 6 6.00 366 364 99 0 Included 1 320031019 T25s R59e S10 Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

8730 0.079 0.079 0.077 0.076 4 4.00 366 363 99 0 Included 1 320032002 1301b East Tonopah North Las

Vegas

Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

6457 0.091 0.089 0.086 0.085 14 19.20 366 267 73 0 None 4 320037771 Ries Rd, Spring

Mountain Youth Camp,

Mt. Charleston

Not in a city Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

4413 0.072 0.069 0.068 0.067 0 0.00 366 184 50 0 None 4 320037774 Top Of Frenchman

Mountain Comm Tower

Sunrise Manor Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

3668 0.081 0.08 0.079 0.076 7 16.70 366 153 42 0 None 4 320037778 Southeast Of Las

Vegas, Near Comm

Towers In Henderson,

Nv

Not in a city Clark NV 09
Page 6 of 7

Generated: March 2, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2012 (Annual statistics for 2012 are not final until May 1, 2013)

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

3645 0.074 0.074 0.074 0.073 0 0.00 366 152 42 0 None 4 320037779 101 Laughlin Civic

Drivelaughlin

Laughlin Clark NV 09

8-HR RUN

AVG BEGIN

HOUR

5092 0.076 0.072 0.072 0.071 1 1.00 214 212 99 0 None 1 320190006 320 Hardie Lane Fernley Lyon NV 09

8-HR RUN

AVG BEGIN

HOUR

7263 0.075 0.073 0.073 0.072 0 0.00 366 301 82 0 None 1 320310016 301 A State Street,

Reno, Nv 89502

Reno Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

7315 0.075 0.073 0.073 0.072 0 0.00 366 305 83 0 None 1 320310020 4110 De Lucci Lane,

Reno Nv 89502

Reno Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

6020 0.072 0.068 0.067 0.067 0 0.00 366 249 68 0 None 1 320310025 684a State Route 341,

Reno Nv 89521

Reno Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

7261 0.075 0.072 0.072 0.071 0 0.00 366 302 83 0 None 1 320311005 750 4th St, Sparks, Nv

89431

Sparks Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8035 0.071 0.066 0.066 0.065 0 0.00 366 335 92 0 None 1 320312002 855 Alder Drive, Incline

Village, Nv 89451

Incline

Village-Crystal

Bay

Washoe NV 09

8-HR RUN

AVG BEGIN

HOUR

8027 0.077 0.077 0.073 0.071 2 2.20 366 334 91 0 None 1 320312009 325 Patrician Dr,

Lemmon Valley, Nv

89506

Lemmon

Valley-Golden

Valley

Washoe NV 09
Page 7 of 7

Generated: March 2, 2013

Source: U.S. EPA AirData <http://www.epa.gov/airdata>

This report is based on monitor-level summary statistics. Air quality standards for some pollutants (PM2.5 and Pb) allow for combining data from multiple monitors into a site-level

summary statistic that can be compared to the standard. In those cases, the site-level statistics may differ from the monitor-level statistics upon which this report is based.

Readers are cautioned not to rank order geographic areas based on AirData reports. Air pollution levels measured at a particular monitoring site are not necessarily representative

of the air quality for an entire county or urban area.

AirData reports are produced from a direct query of the AQS Data Mart. The data represent the best and most recent information available to EPA from state agencies. However,

some values may be absent due to incomplete reporting, and some values may change due to quality assurance activities. The AQS database is updated daily by state, local, and

tribal organizations who own and submit the data. Please contact the appropriate air quality monitoring agency to report any data problems.

<http://www.epa.gov/airquality/airdata/ad_contacts.html>

Get detailed information about this report, including column descriptions, at http://www.epa.gov/airquality/airdata/ad_about_reports.html#mon

Monitor Values Report

Geographic Area: Nevada

Pollutant: Ozone

Year: 2012 (Annual statistics for 2012 are not final until May 1, 2013)

Exceptional Events: Included (if any)

Duration Description=8-HR RUN AVG BEGIN HOUR

Duration

Description Obs

First

Max

Second

Max

Third

Max

Fourth

Max

Actual

Exc

Est

Exc

Required

Days

Valid

Days

Percent

Days

Missing

Days

Exc

Events

Monitor

Number Site ID Address City County State

EPA

Region

8-HR RUN

AVG BEGIN

HOUR

8289 0.08 0.078 0.077 0.076 4 4.30 366 339 93 0 None 1 320330101 Great Basin National

Park

Lehman Caves

National

Monument

White

Pine

NV 09

8-HR RUN

AVG BEGIN

HOUR

4988 0.074 0.073 0.073 0.072 0 0.00 214 205 96 0 None 2 325100002 3300 East Fifth St (City

Yard)

Carson City Carson

City

NV 09
Exhibit 2
No. 12-73388

UNI T E D ST A T ES C O UR T O F APPE A LS 

F O R T H E NIN T H C IR C UI T 

_____________________________________________________________

MOAPA BAND OF PAIUTE INDIANS, NATIONAL PARKS 

CONSERVATION ASSOCIATION, AND SIERRA CLUB, 

 Petitioners, 

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and LISA P. 

JACKSON, Administrator, United States Environmental Protection Agency, 

 Respondents, 

and 

NEVADA POWER COMPANY and STATE OF NEVADA, DEPARTMENT OF 

CONSERVATION AND NATURAL RESOURCES, DIVISION OF 

ENVIRONMENTAL PROTECTION, 

 Intervenor Respondents. 

____________________________________________

%5,()2)3(7,7,21(5602$3$%$1'2)3$,87(,1',$16

1$7,21$/3$5.6&216(59$7,21$662&,$7,21$1'6,(55$

&/8%

BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB

(L IST O F C O UNSE L APPE A RS O N N E X T PA G E)
Suma Peesapati (CA# 203701) 

EARTHJUSTICE 

50 California Street, Suite 500 

San Francisco, CA 94111 

(415) 217-2000 Phone 

(415) 217-2040 Fax 

speesapati@earthjustice.org

Matthew Gerhart (WA# 42787) 

EARTHJUSTICE 

705 2nd Ave., Suite 203 

Seattle, WA 98104 

(206) 343-7340 Phone 

(206) 343-1526 Fax 

mgerhart@earthjustice.org

Dan Galpern (OR# 06195) 

Law Firm of Charles M. Tebbutt P.C. 

941 Lawrence Street 

Eugene, OR 97401

(541) 344-3505 Phone 

(541) 344-3516 Fax 

galpern@tebbuttlaw@gmail.com

Counsel for Environmental Coalition Moapa Band of Paiute Indians, National 

Parks Conservation Association and Sierra Club 
i 

&25325$7(',6&/2685(67$7(0(17

 Petitioners National Parks Conservation Association and Sierra Club are 

nonprofit conservation organizations. The Moapa Band of Paiute Indians is a 

sovereign tribe. None of the petitioners has a parent corporation and no publicly 

held corporation owns a 10-percent or greater ownership interest in any of the 

petitioning organizations. 
ii

T A B L E O F C O N T E N TS 

CORPORATE DISCLOSURE STATEMENT .......................................................... i

TABLE OF AUTHORITIES ....................................................................................iv

GLOSSARY ..............................................................................................................ix

INTRODUCTION ..................................................................................................... 1

JURISDICTIONAL STATEMENT .......................................................................... 3

I. SUBJECT MATTER JURISDICTION ........................................................... 3

II. STANDING ..................................................................................................... 4

STATEMENT OF ISSUES ....................................................................................... 8

STATEMENT OF THE CASE .................................................................................. 8

STATEMENT OF FACTS ......................................................................................10

I. 7+(&/($1$,5$&7¶6REGIONAL HAZE PROGRAM ......................10

II. THE REID GARDNER GENERATING STATION ....................................15

III. (3$¶65(9,(:$1'),1$/$&7,21211(9$'$¶S SIP 

SUBMISSION ...............................................................................................16

SUMMARY OF THE ARGUMENT ......................................................................25

ARGUMENT ...........................................................................................................26

I. STANDARD OF REVIEW ...........................................................................26

II. BOTH NEVADA AND EPA ARBITRARILY UNDERESTIMATED 

THE VISIBILITY IMPROVEMENT FROM SCR. .....................................27

A. EPA Ignored the Cumulative Benefit of SCR in Its Analysis. ...........28

B. EPA Assumed an Unreasonably Low Pollution Control 

Performance for SCR. .........................................................................34
iii

III. (3$¶65(*,21$/+$=(DETERMINATION RESTS ON AN 

ARBITRARY ANALYSIS OF COSTS. .......................................................38

A. EPA Overestimated the Cost of SCR and Underestimated the 

Cost of SNCR ......................................................................................39

B. 7KH5HFRUG'RHV1RW6XSSRUW(3$¶V5HMHFWLRQRIWKHMost 

Effective Control.. ...............................................................................44

IV. EPA'S ANALYTICAL PROCESS DEFIES THE AGEN&<¶62:1

REGULATIONS AND PAST PRACTICE, AS WELL AS THE 

BAS,&*2$/2)7+($&7¶6 REGIONAL HAZE PROGRAM..............48

CONCLUSION ........................................................................................................55

CERTIFICATE OF COMPLIANCE .......................................................................57

STATEMENT OF RELATED CASES ...................................................................58
iv

7$%/(2)$87+25,7,(6

Page(s) 

C ASES

$UL]&DWWOH*URZHUV$VV¶QY86)LVK	:LOGOLIH, 

273 F.3d 1229 (9th Cir. 2001) ......................................................................26, 44

$VV¶QRI3ULYDWH&ROO	8QLYY'Xncan, 

870 F. Supp. 2d 133 (D.D.C. 2012) ..............................................................27, 45

Bluewater Network v. EPA, 

370 F. 3d 1 (D.C. Cir. 2004) .........................................................................37, 38

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837 (1984) ............................................................................................30

&WUIRU%LRORJLFDO'LYHUVLW\Y1DW¶O+LJKZD\7UDIILF6DIHW\$GPLQ

538 F.3d 1172 (9th Cir. 2008) ................................................................27, 40, 44

Ctr. for Energy and Econ. Dev. v. EPA, 

398 F.3d 653 (D.C. Cir. 2005) .............................................................................. 7 

Ecological Rights Found. v. Pac. Lumber Co., 

230 F.3d 1141 (9th Cir. 2000) .............................................................................. 5 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 

528 U.S. 167 (2000) .............................................................................................. 5 

Hall v. Norton, 

266 F.3d 969 (9th Cir. 2001) ................................................................................ 6 

+XQWY:DVK6WDWH$SSOH$GYHUWLVLQJ&RPP¶Q, 

432 U.S. 333 (1977) .............................................................................................. 4 

Mass. v. EPA, 

549 U.S. 497 (2007) .............................................................................................. 5 

McClaskey v. U.S. Dep't of Energy, 

720 F.2d 583 (9th Cir. 1983) ..............................................................................33

Mich. Dept. of Envtl. Quality v. Browner, 

230 F.3d 181 (6th Cir. 2000) ........................................................................43, 48
v 

Mont. Sulphur & Chem. Co. v. EPA, 

666 F.3d 1174 (9th Cir. 2012) ................................................................26, 43, 48

Natural Res. Def. Council v. EPA, 

507 F.2d 905 (9th Cir. 1974) ................................................................................ 6 

North Dakota v. EPA, 

No. 12-1844 (8th Cir. brief filed Dec. 10, 2012) .......................................... 14, 43

NRDC v. Sw. Marine, Inc., 

236 F.3d 985 (9th Cir. 2000) ................................................................................ 7 

Nw. Coal. for Alts. to Pesticides v. EPA, 

544 F.3d 1043 (9th Cir. 2008) ..........................................................26, 44, 45, 48

2FHDQ$GYRFDWHVY86$UP\&RUSVRI(QJ¶UV, 

402 F.3d 846 (9th Cir. 2005) ................................................................................ 5 

Safe Air for Everyone v. EPA,

488 F.3d 1088 (9th Cir. 2007) ............................................................................55

Selkirk Conservation Alliance v. Forsgren, 

336 F.3d 944 (9th Cir. 2003) ..............................................................................51

Sierra Club v. EPA, 

671 F.3d 955 (9th Cir. 2012) ..............................................................................26

7ULSROL5RFNHWU\$VV¶QY%XUHDXRI$OFRKRO7REDFFR)LUHDUPVDQG

Explosives, 

437 F.3d 75 (D.C. Cir. 2006) ..............................................................................38

7XFVRQ+HUSHWRORJLFDO6RF¶\Y6DOD]DU, 

566 F.3d 870 (9th Cir. 2009) ...............................................................................37

W. States Petroleum Ass'n v. EPA, 

)GWK&LU>KHUHLQDIWHU3WSPA ́@ ......................................30, 33

Watt v. Alaska, 

451 U.S. 259 (1981) ............................................................................................54

WildEarth Guardians v. EPA, 

No. 11-9552 (10th Cir. brief filed Sept. 25, 2012) .............................................52
vi

Wilderness Watch, Inc. v. U.S. Fish & Wildlife Serv.,

629 F.3d 1024 (9th Cir. 2010) ......................................................................27, 43

ST A T U T ES

5 U.S.C. §§ 701±06..................................................................................................26

5 U.S.C. § 706(2) .....................................................................................................26

42 U.S.C. § 7410(a) ................................................................................................. 11

42 U.S.C. § 7410(k) ........................................................................................... 38, 48

42 U.S.C. § 7491(g)(2).............................................................................................38

42 U.S.C. § 7491(a) ................................................................................................. 11

42 U.S.C. § 7491(a)(1) .......................................................................................29, 46

42 U.S.C. § 7491(a)(1), (b)(2) .................................................................................49

42 U.S.C. § 7491(a)(4) .............................................................................................12

42 U.S.C. § 7491(b)(2)......................................................................................passim 

42 U.S.C. § 7491(b)(2)(A) .......................................................................................12

42 U.S.C. § 7491(g)(2).................................................................................13, 38, 50

42 U.S.C. § 7607(b)(1)....................................................................................... 3, 4, 9 

42 U.S.C. § 7607(d)(9).............................................................................................26

Clean Air Act 169A(a)(1) ..................................................................................29, 31

OT H E R A U T H O RI T I ES

40 C.F.R. pt. 51, App. Y § IV(D)(4)(e) ...................................................................19

40 C.F.R. § 51.301 .......................................................................................12, 49, 50

40 C.F.R. § 51.308(b) ..............................................................................................16

40 C.F.R. § 51.308(d)(1) ..........................................................................................13
vii

40 C.F.R. §51.308(d)(1)(i)(B) ..................................................................................11

40 C.F.R. § 51.308(d)(1)(i)(B), (d)(1)(ii) ................................................................13

64 Fed. Reg. 35,714 (July 1, 1999)..........................................................................10

70 Fed. Reg. 39,104 (July 6, 2005) .................................................................... 14, 34

70 Fed. Reg. 39,127 (July 6, 2005)....................................................................50, 52 

75 Fed. Reg. 35,520 (June 22, 2010) .......................................................................10

75 Fed. Reg. 64,221 (Oct. 19, 2010)........................................................................53

76 Fed. Reg. 13,944 (Mar. 15, 2011) ................................................................. 14, 46 

76 Fed. Reg. 34,608 (June 14, 2011) .......................................................................14

76 Fed. Reg. 36,450 (June 22, 2011) ................................................................passim 

76 Fed. Reg. 52,388 (Aug. 22, 2011)................................................................. 29, 31

76 Fed. Reg. 81,728 (Dec. 28, 2011) .......................................................................31

77 Fed. Reg. 17,334 (Mar. 26, 2012) ................................................................... 9, 18

77 Fed. Reg. 21,896 (Apr. 12, 2012) ................................................................passim 

77 Fed. Reg. 24,794 (Apr. 25, 2012).......................................................................32

77 Fed. Reg. 28,825 (May 16, 2012) .......................................................................14

77 Fed. Reg. 40,150 (July 6, 2012) ..........................................................................32

77 Fed. Reg. 42,834 (July 20, 2012) ..................................................................53, 54

77 Fed. Reg. 50,602 (Aug. 22, 2012).......................................................................32

77 Fed. Reg. 50,936 (Aug. 23, 2012)................................................................passim 

77 Fed. Reg. 51,620 (Aug. 24, 2012)........................................................... 29, 31, 33 

77 Fed. Reg. 57,864 (Sept. 18, 2012) ......................................................................31

77 Fed. Reg. 72,512 (Dec. 5, 2012) .........................................................................32
viii

77 Fed. Reg. 74,355 (Dec. 14, 2012) .......................................................................14

77 Fed. Reg. 75,704 (Dec. 21, 2012) ................................................................ passim 

78 Fed. Reg. 8,274 (Feb. 5, 2013) ............................................................... 11, 31, 54 
ix

*/266$5<

Act Clean Air Act, 42 U.S.C. §§ 7410 et seq.

AFUDC allowance for funds used to during construction 

APA Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. 

BART best available retrofit technology 

CAA Clean Air Act, 42 U.S.C. §§ 7410 et seq.

CCM Cost Control Manual 

EPA United States Environmental Protection Agency 

FIP federal implementation plan 

lb/MMBtu pounds per million British thermal units 

LNB low-nitrogen oxides burners 

NDEP Nevada Division of Environmental Protection 

NOx nitrogen oxides 

NPS National Park Service 

OFA over-fire air 

RGGS Reid Gardner Generating Station 

SCR selective catalytic reduction 

SIP state implementation plan 

SNCR selective non-catalytic reduction 

URP uniform rate of progress 
1 

,1752'8&7,21

 This case involves long-overdue air pollution controls for the aging Reid 

*DUGQHU*HQHUDWLQJ6WDWLRQ35HLG*DUGQHU ́DFRDO-fired power plant that impairs 

visibility in five national parks, including the Grand Canyon. 

Recognizing the widespread visibility problem in our national parks and 

ZLOGHUQHVVDUHDV&RQJUHVVHQDFWHGWKH&OHDQ$LU$FW¶V3$FW ́UHJLRQDOKD]H

program, which mandates the restoration of natural visibility conditions in our 

QDWLRQDOSDUNVDQGRWKHUSULVWLQH3&ODVV, ́DUHDVE\7he statute requires 

industrial polluters including Reid Gardner2the largest single visibility-impairing 

source in the State of Nevada2WRLQVWDOOWKH3EHVWDYDLODEOHUHWURILWWHFKQRORJ\ ́RU

3%$57 ́8QGHUJRYHUQLQJUHJXODWLRQV%$57LVWKH3EHVWV\VWHPRIcontinuous 

HPLVVLRQFRQWURO ́FRQVLGHULQJDPRQJRWKHUIDFWRUVYLVLELOLW\LPSURYHPHQWDQG

cost. 

:KHQWKH86(QYLURQPHQWDO3URWHFWLRQ$JHQF\3(3$ ́HYDOXDWHGZKDW

constitutes BART for Reid Gardner, it correctly found that selective catalytic 

reduction, RU36&5 ́WHFKQRORJ\IDURXWSHUIRUPVLWVQH[WEHVWFRPSHWLWRUVHOHFWLYH

non-FDWDO\WLFUHGXFWLRQRU361&5 ́WHFKQRORJ\ZKLFKRQDYHUDJHLVRQO\KDOIDV

effective at reducing nitrogen oxides pollution. EPA further found the superior 

SCR technology to be cost-effective, and otherwise viable in light of the remaining 

statutory regional haze factors. 
2 

Despite these findings, EPA ultimately chose the inferior (SNCR) 

WHFKQRORJ\DVWKH3EHVWV\VWHPRIFRQWLQXRXVHPLVVLRQUHGXFWLRQ ́IRU5HLG

Gardner, asserting that the visibility benefits achievable with SCR are not 

sufficient to justify its incrementally higher costs. There is no basis in the record 

for this conclusion. Just the opposite; the record shows that EPA knowingly 

overestimated the costs of SCR and underestimated the visibility benefits it would 

SURYLGH6SHFLILFDOO\ZLWKUHVSHFWWRFRVWV(3$LQIODWHG6&5¶VH[SHQVHE\WR

40 percent at the same time it significantly underestimated the cost of the 

competing SNCR technology. With respect to visibility improvement, EPA failed 

to account for the full extent of emissions reductions that SCR can achieve and 

failed to consider the cumulative benefit of SCR across all five of the Class I areas 

WKDWDUHLPSDFWHGE\5HLG*DUGQHU¶VSROOXWLRQ,QVKRUWEPA exaggerated the costs 

of SCR and discounted its benefits and then concluded that the benefits of SCR 

could not possibly warrant the costs. Without a fair accounting of both costs and 

benefits, EPA could not reasonably reach this conclusion. 

What is aSSDUHQWIURP(3$¶VDUELWUDU\WUHDWPHQWRIFRVWVDQGEHQHILWVLV

(3$¶VLPPRYDEOHFRPPLWPHQWWRWKHLQIHULRU61&5WHFKQRORJ\UHJDUGOHVVRI

what any principled analysis of the statutory regional haze factors would show. To 

reach its predetermined outcome, EPA abandoned its customary methods of 

assessing best available retrofit technology and skewed its analysis to reject the 
3 

best performing control. If this decision is allowed to stand, it will not only 

XQGHUPLQHDFKLHYHPHQWRIWKH&OHDQ$LU$FW¶VYLVLELOLWy goals at the Grand 

Canyon and other treasured public lands that are marred by pollution from Reid 

Gardner, it will give EPA a free pass to impose lax pollution control standards that 

will hobble efforts to restore visibility as Congress intended. For all of these 

reasons, Petitioners Moapa Band of Paiute Indians, National Parks Conservation 

$VVRFLDWLRQDQG6LHUUD&OXEFROOHFWLYHO\WKH3(QYLURQPHQWDO&RDOLWLRQ ́

respectfully request that this Court invalidate the challenged BART determination. 

-85,6',&7,21$/67$7(0(17

I. SUBJE C T M A T T E R JURISDI C T I O N 

This Court has jurisdiction pursuant to 42 U.S.C. § 7607(b)(1), which 

SURYLGHVWKDWSHWLWLRQVIRUMXGLFLDOUHYLHZRI(3$ILQDO3DFWLRQLQapproving or 

promulgating any implementation plan under section 7410 . . . which is locally or 

regionally applicable may be filed only in the United States Court of Appeals for 

the appropriatHFLUFXLW ́9HQXHLVSURSHULQWKLV&LUFXLWEHFDXVHWKLVFDVHFRQFHUQV

(3$¶VSDUWLDODSSURYDORIDVWDWHLPSOHPHQWDWLRQSODQDQGSURPXOJDWLRQRID

federal implementation plan, containing emission limits for the Reid Gardner 

Generating Station in Nevada. 

Petitioners filed their petition for review on October 19, 2012, which is 

within 60 days of August 23, 2012, the date of publication of the final rule. See 77 
4 

Fed. Reg. 50,936 (Aug. 23, 2012). Accordingly, the petition for review was timely 

filed. See 42 U.S.C. § 7607(b)(1) (3Any petition for review under this subsection 

shall be filed within 60 days from the date notice of such promulgation, approval, 

RUDFWLRQDSSHDUVLQWKH)HGHUDO5HJLVWHU ́

II. ST A NDIN G 

The organizations comprising the Environmental Coalition have standing to 

FKDOOHQJH(3$¶VDSSURYDORIWKHUHJLRQDOKD]HSODQIRU5HLG*DUGQHUZKLFK

directly affects the health and aesthetic interests of their members. An 

organization has standing to bring an action on behalf of its members if: (1) 

neither the claim asserted nor the relief requested requires its members to 

participate directly in the lawsuit; (2) it is seeking to protect interests that are 

germane to its purpose; and (3) its members would have standing to sue 

individually. See Hunt v. Wash. 6WDWH$SSOH$GYHUWLVLQJ&RPP¶Q, 432 U.S. 333, 

343 (1977). 

 Here, direct participation of the members of the Environmental CoalitiRQ¶V

RUJDQL]DWLRQVLVXQQHFHVVDU\6HFRQGWKH(QYLURQPHQWDO&RDOLWLRQ¶VLQWHUHVWVLQ

WKLVOLWLJDWLRQIDOOVTXDUHO\ZLWKLQHDFKRIWKHLURUJDQL]DWLRQ¶VPLVVLRQVSee

Declarations of William Anderson at ¶ 1; Jane Feldman at ¶ 4; Lynn Davis at ¶ 3. 

(all declarations are provided in $WWDFKPHQW$WR3HWLWLRQHUV¶DFFRPSDQ\LQJ

Motion for Leave to File Standing Declarations). Third, these organizations each 
5 

have members with standing to bring this suit individually.1

 To satisfy this final 

prong of the test, Petitioners must show that (1) at least one of its members has 

suffered an 3LQMXU\LQIDFW ́WKHLQMXU\LVIDLUO\WUDFHDEOHWR(3$¶VLOOHJDO

conduct; and (3) it is likely, as opposed to merely speculative, that the injury will 

be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs., Inc., 528 U.S. 167, 180-81 (2000). 

3HWLWLRQHUV¶PHPEHUVVDWLVI\WKH3LQMXU\LQIDFW ́UHTXLUHPHQW$HVWKHWLF

injury suffices to confer standing. Laidlaw, 528 U.S. at 183. To satisfy this 

UHTXLUHPHQWDSDUW\QHHGQRWVKRZDFWXDOKDUP3DQLQFUHDVHGULVNRIKDUPFDQ

itself be injury in fact sufficient for VWDQGLQJ ́Ecological Rights Found. v. Pac.

Lumber Co., 230 F.3d 1141, 1151 (9th Cir. 2000); see also Ocean Advocates v.

86$UP\&RUSVRI(QJ¶UV, 402 F.3d 846, 860 (9th Cir. 2004) (injury in fact 

H[LVWHGZKHUHDJHQF\¶VLVVXDQFHRIDSHUPLWDXWKRUL]LQJDQRLOFRPSDQ\WREXLOGDQ

addition to its oil refinery dock increased the risk of an oil spill, an event that 

ZRXOGKDUPSODLQWLIIV¶LQWHUHVWV

3HWLWLRQHUV¶PHPEHUVDOOHJHFRQFUHWHLQMXULHVEHFDXVHDVUHVLGHQWVRI

FRPPXQLWLHVQHDU5HLG*DUGQHUDQGDVYLVLWRUVWRWKHUHJLRQ¶VQDWLRQDOSDUNVWKHLU

aesthetic enMR\PHQWRIWKHLUQDWXUDOVXUURXQGLQJVLVLPSDLUHGE\5HLG*DUGQHU¶V

 

1

 Only one Petitioner need establish standing. Mass. v. EPA, 549 U.S. 497, 518 

(2007); 2FHDQ$GYRFDWHVY86$UP\&RUSVRI(QJ¶UV, 402 F.3d 846, 809 n.3 (9th 

Cir. 2005). 
6 

pollution. Members of Sierra Club and NPCA, who regularly visit and fly over the 

national parks affected by Reid Gardner2such as the Grand Canyon, Bryce 

Canyon, and Zion2experience injury from degraded scenic vistas in those iconic 

places. Sierra Club member Jane Feldman has witnessed haze-obscured views in 

the Grand Canyon and Zion during family trips organized to enjoy the scenic 

beauty of these places. Feldman Decl. at ¶ 13. Steven Conner, a pilot and amateur 

outdoor photographer, is similarly harmed by hazy views when he visits and flies 

over these famed parks. Conner Decl. at ¶¶ 5-7. On a recent flight over the Grand 

Canyon, 0U&RQQHUZDV3VKRFNHG ́E\WKH 3KD]HWKDWKDGVHWWOHGLQWRWKHFDQ\RQ ́

obscuring the bottom of the canyon in places Id. at ¶ 3. 

The Moapa Band of Paiutes, who live next to Reid Gardner and who 

UHJXODUO\EUHDWKHWKHSODQW¶VSROOXWLRQDUHDOVRLQMXUHGE\5HLG*DUGQHU¶VH[FHVV

emissions. Anderson Decl. at ¶¶ 4-12. This Court has upheld standing when, as 

KHUHDSODLQWLII3ZLOOVXIIHULQMXU\LIFRPSHOOHGWREUHDWKHDLUOHVVSXUHWKDQWKDW

mandated by the &OHDQ$LU$FW ́Natural Res. Def. Council v. EPA, 507 F.2d 905, 

910 (9th Cir. 1974); see Hall v. Norton, 266 F.3d 969, 976 (9th Cir. 2001) 

3HYLGHQFHRIDFUHGLEOHWKUHDWWRWKHSODLQWLII¶VSK\VLFDOZHOO-being from airborne 

SROOXWDQWV ́HVWDEOLVKHVLQMXU\LQIDFW&KDLUPDQ$QGHUVRQ who suffers from 

respiratory problems that are exacerbated by exposure to excess pollution from 

5HLG*DUGQHULVFRQFHUQHGDERXWWKHHIIHFWVRI5HLG*DUGQHU¶VSROOXWLRQRQKLV
7 

health, the health of his family and the health of other members of his tribe. Id. at 

¶¶4-9. 

 The organizations comprising the Environmental Coalition also satisfy the 

traceability requirement for standing. The physical and aesthetic harms suffered 

by their members are traceDEOHWR(3$¶VLOOHJDOFRQGXFW+DG(3$LPSRVHG

stronger pollution controls on Reid Gardner, as required by the Clean Air Act, 

emissions from the power plant would significantly decrease below pollution 

levels that currently are authorized by EPA, thus reducing risk to public health and 

LPSURYLQJYLVLELOLW\LQWKHUHJLRQ¶VQDWLRQDOSDUNDQGZLOGHUQHVVDUHDVSee, e.g.,

NRDC v. Sw. Marine, Inc., 236 F.3d 985, 994-95 (9th Cir. 2000) (to satisfy 

WUDFHDELOLW\UHTXLUHPHQWGHIHQGDQW¶VFRQGXFWQHHGRQO\FDXVHRUFRQWULEXWHWR

alleged injury). 

 Finally, a favorable order by this Court will provide redress to the 

(QYLURQPHQWDO&RDOLWLRQIRUWKHLOOHJDODQGKDUPIXOHIIHFWVRI(3$¶VYLRODWLRQVRI

the Clean Air Act. An order requiring EPA to engage in a new public process that 

complies with the Clean Air Act is likely to result in stronger pollution controls 

and to cure the above-described harm to the Environmental Coalition. See, e.g.,

Ctr. for Energy and Econ. Dev. v. EPA, 398 F.3d 653, 657 (D.C. Cir. 2005) 

KROGLQJWKDW3WKHUHGUHVVDELOLW\UHTXLUHPHQWPD\EHVDWLVILHGE\JLYLQJWKH
8 

aggrieved party the opportunity WRSDUWLFLSDWHLQDQHZUXOHPDNLQJ ́TXRWDWLRQV

omitted).

67$7(0(172),668(6

1. Whether EPA properly rejected SCR technology in favor of the inferior 

61&5WHFKQRORJ\LQGHWHUPLQLQJWKH3EHVWV\VWHPRIFRQWLQXRXVHPLVVLRQ

FRQWURO ́IRUQLWURJHQR[LGHVSROOXWLon from Reid Gardner based on the 

governing law and the facts in the record. 

2. :KHWKHU(3$¶VFRVWHVWLPDWHVIRUWKHWZRFRPSHWLQJWHFKQRORJLHV2SCR 

and SNCR2have a rational basis under the relevant law. 

3. :KHWKHU(3$¶VHVWLPDWHGYLVLELOLW\JDLQVIURPWKHWZRFompeting 

technologies2SCR and SNCR2have a rational basis under the relevant 

law. 

4. :KHWKHUWKHXQGLVSXWHGHUURUVLQ(3$¶VFRVW-benefit analysis rendered the 

DJHQF\¶VXOWLPDWHFRQFOXVLRQIDYRULQJ61&5DUELWUDU\DQGFDSULFLRXV

Pursuant to Ninth Circuit Rule 28-2.7, pertinent authorities are reproduced in 

an addendum to this brief. 

67$7(0(172)7+(&$6(

The Clean Air Act requires each state to submit a regional haze plan to EPA 

in order to eliminate haze pollution in national parks and wilderness areas. See 42 

U.S.C. § 7491(b)(2). EPA reviews plans submitted by the states and must approve 
9 

plans that comply with all applicable requirements of the Clean Air Act; however, 

if a state plan does not meet the requirements of the Act, EPA must disapprove the 

plan submission and promulgate a federal implementation plan that remedies the 

shortcomings. Id. § 7410(c), (k). 

On November 18, 2009, the State of Nevada submitted a regional haze plan 

IRU(3$¶VUHYLHZ76 Fed. Reg. 36,450, 36,451 (June 22, 2011). In light of public 

FRPPHQWVSRLQWLQJRXWPXOWLSOHIODZVLQWKH6WDWH¶VDQDO\VLV(3$FRQFOXGHGWKDW

the information provided by the State was not sufficient for EPA to take final 

DFWLRQRQ1HYDGD¶VQLWURJHQR[LGH%$57GHWHUPLQDWLRQIRU5HLG*DUGQHU77 Fed. 

Reg. 17,334, 17,335 (Mar. 26, 2012). EPA therefore delayed taking final action on 

the nitrogen oxide BART determination for Reid Gardner in order to conduct 

additional analysis. 

EPA proposed to approve in part and disapprove in part the NOx BART 

determination for Reid Gardner on April 12, 2012. 77 Fed. Reg. at 21,896 (Apr. 

12, 2012). EPA finalized the rule on August 23, 2012. 77 Fed. Reg. at 50,936 

(Aug. 23, 2012). In the final rule, EPA rejected the most effective technology for 

removing nitrogen oxide pollutants, SCR, in favor of a less-effective control 

technology, SNCR. 

Pursuant to 42 U.S.C. § 7607(b)(1), Petitioners Moapa Band of Paiute 

Indians, National Parks Conservation Association, and Sierra Club filed this 
10

petition for judicial review on October 19, 2012. Nevada Power Company, the 

owner and operator of the Reid Gardner Generating Station, and the Nevada 

Division of Environmental Protection were granted leave to intervene on behalf of 

the Respondents. 

67$7(0(172))$&76

I. 7+(&/($1$,5$&7¶6R E G I O N A L H A Z E PR O G R A M 

9LVLEOHDLUSROOXWLRQRU3KD]H ́KDVORQJPDUUHGWKHRWKHUZLVHVSHFWDFXODU

VFHQLFODQGVFDSHVLQRXUQDWLRQ¶VWUHDVXUHGSDUNVDQGZLOGHUQHVVDUHDV$V

H[SODLQHGE\(3$3>U@HJLRQDOKD]HLVYLVLELOLW\LPSDLUPHQWWKDWLVSURGXFHGE\D

multitude of sources and activities which emit fine particles and their precursors 

DQGZKLFKDUHORFDWHGDFURVVDEURDGJHRJUDSKLFDUHD ́64 Fed. Reg. 35,714, 

35,715 (July 1, 1999). The primary pollutants that cause haze are sulfur dioxide 

DQGQLWURJHQR[LGHV312[ ́DOWKRXJKSDUWLFXODWHPDWWHUYRODWLOHRUJDQLF

compounds, and other substances contribute to haze formation as well. Id.; see

also 76 Fed. Reg. 36,450, 36,456-59 (June 22, 2011). In addition to impairing 

visibility, sulfur dioxide and nitrogen oxides also cause a range of serious health 

effects. Exposure to sulfur dioxide pollution can contribute to lung and heart 

ailments, including premature death. 75 Fed. Reg. 35,520, 35,525-28 (June 22, 

2010). Nitrogen oxides contribute to ground-level ozone, or smog, which can 

cause or exacerbate respiratory diseases, asthma attacks, and decreased lung 
11

function; in other regional haze actions, EPA has recognized that reducing nitrogen 

oxides emissions will reduce the incidence of asthma and other respiratory 

conditions. 78 Fed. Reg. 8,274, 8,292 (Feb. 5, 2013). 

In Nevada, air pollution severely limits visibility in the Jarbridge Wilderness 

Area. 76 Fed. Reg. at 36,456-58, 36,464-65. Moreover, air pollution that 

originates in Nevada disperses to neighboring states, where it impairs visibility in 

24 national parks and wilderness areas2including the Grand Canyon National 

Park and Sycamore Canyon Wilderness Area in Arizona, Joshua Tree National 

Park in California, and Zion and Bryce Canyon National Parks in Utah. Id. at 

36,455, 36,460. 

,Q&RQJUHVVVHW3DVDQDWLRQDOJRDO ́FOHDULQJWKHQDWLRQ¶VSDUNVDQG

wilderness areas of anthropogenic visible air pollution. 42 U.S.C. § 7491(a). EPA 

has interpreted the statute to set a presumptive goal of attaining natural visibility 

conditions by 2064. 40 C.F.R. §51.308(d)(1)(i)(B). To achieve the statutory goal, 

HDFKVWDWHPXVWFUHDWHDVWDWHLPSOHPHQWDWLRQSODQ36,3 ́FDUU\LQJRXWWKHUHJLRQDO

KD]HSURJUDP¶VUHTXLUHPHQWV42 U.S.C. §§ 7410(a), 7491(b)(2). EPA evaluates 

the SIP and either approves or disapproves it in whole or in part. Id. § 7410(k)(3). 

,I(3$¶VHYDOXDWLRQUHYHDOVWKDWD6,3GRHVQRWFRPSO\ZLWKWKHClean Air Act, 

(3$PXVWSURPXOJDWHDIHGHUDOLPSOHPHQWDWLRQSODQ3),3 ́WKDWUHPHGLHVWKH

shortcomings. Id. § 7410(c)(1). 
12

(DFKVWDWH¶VUHJLRQDOKD]H6,3PXVWLQFOXGHHPLssions limits on sources of 

air pollution within the state as necessary to protect visibility at all impacted Class 

I areas, both inside and outside the state. See 42 U.S.C. § 7491(a)(4), 7491(b)(2). 

In particular, a SIP must include emissions limits reflecting installation and 

operation of best available retrofit technology, or 3%$57 ́Id. § 7491(b)(2)(A). 

BART is an essential component of the regional haze program as it compels 

emissions reductions from older, disproportionately polluting sources that often 

have escaped control under other Clean Air Act programs. 

BART is required at eligible sources2

 that are reasonably anticipated to 

cause or contribute to visibility impairment at national parks, wilderness areas, 

ZLOGOLIHUHIXJHVDQGRWKHU3&ODVV,DUHDV ́ZKHUHDLUTXDOLW\VKRXOGEHSULVWLQH Id. 

BAR7LVGHILQHGDV3DQHPLVVLRQOLPLWDWLRQEDVHGRQWKHGHJUHHRIUHGXFWLRQ

achievable through the application of the best system of continuous emission 

UHGXFWLRQIRUHDFKSROOXWDQWZKLFKLVHPLWWHGE\DQH[LVWLQJVWDWLRQDU\IDFLOLW\ ́40 

C.F.R. § 51.301. The Clean Air Act requires consideration of five factors when 

GHWHUPLQLQJ%$57IRUDSDUWLFXODUIDFLOLW\3WKHFRVWVRIFRPSOLDQFH ́ the 

WLPHQHFHVVDU\IRUFRPSOLDQFH ́WKH3HQHUJ\DQGQRQ-air quality environmental 

 

2

 A source is BART-eligible if it is a stationary source within one of 26 enumerated 

categories, was not in operation before August 7, 1962, but was in existence on 

August 7, 1977, and has the potential to emit 250 tons per year or more of any 

pollutant. 42 U.S.C. § 7491(b)(2)(A); id. § 7491(g)(7). 
13

LPSDFWVRIFRPSOLDQFH ́3WKHUHPDLQLQJXVHIXOOLIH ́RIWKHVRXUFHDQG3WKH

GHJUHHRILPSURYHPHQWLQYLVLELOLW\ ́IURPWKHFRQWUROWHFKQRORJ\42 U.S.C. § 

7491(g)(2). 

Ultimately, BART limits in combination with other SIP measures must 

achieve 3UHDVRQDEOHSURJUHVV ́WRZDUGWKHDFKLHYHPHQWRIYLVLELOLW\JRDOVSee 42 

U.S.C. § 7491(b)(2); &)5G7RWKLVHQGHDFKVWDWH¶VUHJLRQDO

KD]H6,3PXVWVHW3UHDVRQDEOHSURJUHVV ́JRDOVH[SUHVVHGLQGHFLYLHZVIRUHach 

Class I area located within the state. 40 C.F.R. § 51.308(d)(1)(i)(B), (d)(1)(ii). 

Further, to keep states on the so-FDOOHG3JOLGHSDWK ́WRZDUGUHVWRUDWLRQof natural 

YLVLELOLW\E\VWDWHVDQG(3$FDOFXODWHWKHXQLIRUPUDWHRISURJUHVV3853 ́

the total amount of improvement needed divided by the number of years until 

2064. Id. § 51.308 (d)(1)(i)(B). 

Taken together, both the reasonable progress goals and the uniform rate of 

progress require small, incremental visibility improvement each year. The URP 

IRU1HYDGD¶VRQO\&ODVV,DUHDWKH-DUEULGJH:LOGHUQHVV$UHDLVGHFLYLHZVSHU

year. 76 Fed. Reg. at 36,456-58, 36,464-65. If all sources reduced emissions 

enough to improve visibility by .07 deciviews per year, Jarbridge would achieve 

the statutory goal of natural visibility conditions in 2064. For the Class I areas 

outside of Nevada that are affected by air pollution from Reid Gardner, other State 

SIPs have established similar URPs. For instance, the URP for the Grand Canyon 
14

National Park is .07 deciviews3

 per year. 77 Fed. Reg. at 75,704, 75,714 (Dec. 12, 

2012). The uniform rate of progress is .14 deciviews per year for the Sycamore 

Canyon Wilderness Area, see 77 Fed. Reg. at 75,714, and .20 deciviews per year 

for Joshua Tree National Park. 76 Fed. Reg. 13,944, 13,951 (Mar. 15, 2011), 

finalized by 76 Fed. Reg. 34,608 (June 14, 2011).4

 

These small incremental changes contemplated by the URP underscore the 

importance of making small improvements at multiple facilities in order to meet 

the statutory goal of natural visibility. EPA has consistently emphasized that 

Congress intended to require modest emissions reductions at multiple sources that, 

when aggregated, would result in significant visibility improvement. See, e.g., 70 

Fed. Reg. 39,104, 39,129--XO\3(YHQWKRXJKWKHYLVLELOLW\

improvement from an individual source may not be perceptible, it should still be 

considered in setting BART because the contribution to haze may be significant 

UHODWLYHWRRWKHUVRXUFHFRQWULEXWLRQVLQWKH&ODVV,DUHD ́&RQVROLGDWHGBrief of 

Respondent EPA at 71-72, No. 12-1844, North Dakota v. EPA (8th Cir. brief filed 

 

3

 Both the reasonable progress goals and the uniform rate of progress are calculated 

for both the 20 percent of days with the worst visibility, and the 20 percent of days 

with the best visibility. The URP values cited in this paragraph are for the 20 

percent worst days. 

4

 The reasonable progress goal for the 20 percent worst days is .014 deciviews per 

year for Zion National Park and .02 deciviews per year for Bryce Canyon National 

Park. 77 Fed. Reg. 28,825, 28,834 (May 16, 2012), finalized by 77 Fed. Reg. 

74,355 (Dec. 14, 2012). 
15

'HF3>,@QRUGHU to achieve the goal of remedying man-made 

impairments to visibility, States and EPA have to consider emission controls at 

numerous sources that on an individual basis may not yield perceptible 

improvements, but may be significant relative to other sources¶FRQWULEXWLRQVDQG

FDQFROOHFWLYHO\\LHOGGHWHFWDEOHLPSURYHPHQWV ́

II. T H E R E ID G A RDN E R G E N E R A T IN G ST A T I O N 

The Reid Gardner Generating Station is a coal-fired electric power plant that 

sits next to the Moapa reservation outside of Las Vegas, Nevada. Three of Reid 

*DUGQHU¶VXQLWVZHUHEXLOWLQWKHVDQGVDQGDUHVXEMHFWWR%$5777 

Fed. Reg. at 21,900. The three units have a combined capacity of 300 megawatts. 

Id. Reid Gardner, which emits more than 7,000 tons of NOx per year and more 

than 1,000 tons of sulfur dioxide per year, is a large source of pollution. 76 Fed. 

Reg. at 36,459. Excluding the Mohave Generating Station, which no longer 

operates, Reid Gardner has the highest total emissions and causes the greatest 

visibility impacts of any source subject to BART in Nevada. See id. Reid 

*DUGQHU¶VSROOXWLRQLPSDLUVYLVLELOLW\LQVHYHUDOQHLJKERULQJQDWLRQDOSDUNVDQG

wilderness areas, including the Grand Canyon, Bryce Canyon, Joshua Tree, and 

Zion National Parks, and the Sycamore Canyon Wilderness Area. H. Andrew 

Gray, Modeling for the Reid Gardner Generating Station: Visibility Impacts in 

Class I Areas at 9-10, 13 (Aug. 2011) [hereinafter August 2011 Gray Report], 
16

attachment to Letter from Gloria Smith, Sierra Club to Thomas Webb, EPA 

Region 9 (Aug. 22, 2011) [JA ]; see also 76 Fed. Reg. at 36,460. Currently, 

Reid Gardner operates without effective controls for nitrogen oxides pollution. 

While the plant operates with low-NOx burners with over-fire air, 77 Fed. Reg. at 

21,900, this system removes only between 6.5 percent and 23.7 percent of the 

SODQW¶VQLWURJHQR[LGHHPLVVLRQVId. at 21,900, 21,902. Readily available, costeffective controls, such as SCR, can remove between four and ten times more 

pollution from nitrogen oxides emissions. Id.

III. (3$¶S R E V I E W A ND F IN A L A&7,21211(9$'$¶66,P 

SUB M ISSI O N 

Nevada has long been subject to Clean Air Act requirements to address Reid 

*DUGQHU¶VFRQWULEXWLRQWRKD]HSROOXWLRQ$OOVWDWHVKDGD'HFHPEHU

deadline to submit their regional haze plans to EPA for approval. 40 C.F.R. § 

51.308(b). The State of Nevada missed this deadline by nearly 2 years. 76 Fed. 

Reg. at 36,451. 

When it finally submitted its regional haze plan in November of 2009, the 

State determined that three units at Reid Gardner were subject to the Clean Air 

$FW¶VEHVWDYDLODEOHUHWURILWWHFKQRORJy, or BART, requirements. Id. at 36,463. 

The State evaluated several pollution control technologies, ranging from the least 

effective existing controls, low NOx burners and over-fire air, to the most effective 

FRQWUROVHOHFWLYHFDWDO\WLFUHGXFWLRQ36&5 ́ZKLFKLVW\SLFDOO\JXDUDQWHHGE\LWV
17

vendors to achieve a 90 percent pollutant removal efficiency. 77 Fed. Reg. at 

21,900, 21,903. 

Ultimately, the State rejected SCR, which it conceded is the best performing 

technology, on the grounds that the incremental costs of SCR did not justify the 

DOOHJHGO\3VPDOO ́LQFUHPHQWDOYLVLELOLW\EHQHILWVLWZRXOGDFKLHYHId. at 21,898. 

The State instead proposed a less effective control, selective non-catalytic 

UHGXFWLRQ361&5 ́WKDWDFKLHYHVDSROOXWDQWUHPRYDOHIILFLHQF\RIWR

percent. 76 Fed. Reg. at 36,463 (proposing an emission limit of .20 lb/MMBtu for 

units 1 and 2, and .28 lb/MMBtu for unit 3, based on a 12-month rolling average). 

(3$UHYLHZHGWKH6WDWH¶VSODQDQGLQLWLDOO\SURSRVHGWRDSSURYHLWLQLWVHQtirety. 

76 Fed. Reg. at 36,450. 

The National Park Service and the Environmental Coalition submitted 

FRPPHQWVFULWLFL]LQJ(3$¶VSURSRVHGDSSURYDORIWKH1HYDGDKD]HSODQ7KH

Environmental Coalition (the Petitioners in this case) demonstrated that the State 

had committed several errors, such as overestimating the costs of SCR; 

underestimating the cost of less effective technologies; and underestimating the 

visibility improvement from SCR. See Letter from Gloria Smith, Sierra Club to 

Thomas Webb, EPA Region 9 (Aug. 22, 2011) [JA ]. The National Park 

6HUYLFHHFKRHGWKHVHFULWLFLVPVRIWKH6WDWH¶VDQDO\VLV/HWWHUIURP&DURO0F&R\

National Park Service to Thomas Webb, EPA Region 9 at Attachment, p. 5 (Aug. 
18

17, 2011) [JA @31'(3GLGQRWIROORZWKH%$57JXLGHOLQHVEHFDXVHLWGLGQRW

properly evaluate the effectiveness, costs, and degree of visibility improvement of 

DGGLQJ6&5WR5**6>5HLG*DUGQHU@ ́7KH1DWLRQDO3DUN6HUYLFHFRQFOXGHG

WKDWRQFHWKHVHPXOWLSOHHUURUVZHUHFRUUHFWHG3(3$VKRXOGUHTXLUH6&5RQ5**6

>5HLG*DUGQHU@XQLWVDQGIRU%$57 ́Id. [JA ]. 

Acknowledging the concerns raised in public comments, EPA declined to 

WDNHDILQDODFWLRQRQ1HYDGD¶VQLWURJHQR[LGH%$57OLPLWVIRU5HLG*DUGQHU

stating that: 

:HDUHWDNLQJQRDFWLRQLQWRGD\¶VUXOHRQWKHSRUWLRQRIWKH1HYDGD

SIP that contains the BART determination at RGGS for NOx. 

Following our review of the public comments on this issue, we 

SHUIRUPHGDGGLWLRQDODQDO\VLVRI1HYDGD¶V12[%$57GHWHUPLQDWLRQ

for RGGS. As a result, we no longer consider the currently available 

information to be sufficient for us to take final action on the Nevada 

'LYLVLRQRI(QYLURQPHQWDO3URWHFWLRQ¶V>@GHWHUPLQDWLRQWKDWURWDWLQJ

overfire air [ ] with Rotamix [ ] is the NOx control technology that 

represents BART. 

77 Fed. Reg. 17,334, 17,335 (Mar. 26, 2012). 

After further investigation, EPA found that the nitrogen oxides portion of 

1HYDGD¶VUHJLRQDOKD]HSODQIRU5HLG*DUGQHUZDVGHILFLHQWWKXVWULJJHULQJ(3$¶V

obligation to prepare a federal haze plan. 77 Fed. Reg. at 3>,@IZHILQGWKDW

a state's required submittal is incomplete or unapprovable, then we must 

SURPXOJDWHD),3WRILOOWKLVUHJXODWRU\JDS ́7RUHPHG\WKHVKRUWFRPLQJVLQWKH

6WDWH¶VDQDO\VLV(3$FRQGXFWHGLWVRZQDQDO\VLVRIWKHFRVWVDQGYLVLELOLW\EHQHILWV
19

of SCR compared to SNCR. (3$¶VLQGHSHQGHQWHYDOXDWLRQRIWKHFRVWRIFRntrols 

led EPA to conclude that: 

We agree that NDEP included inappropriate costs and our analysis 

excludes those costs that are not allowed by the CCM [cost control 

manual]. Therefore, we have revised these cost calculations and 

adjusted the value of specific variables to conform to values allowed 

by the CCM. 

77 Fed. Reg. at 21,901. EPA corrected the costs which the State of Nevada had 

LQFOXGHGEXWZKLFKDUHQRWDOORZHGXQGHU(3$¶V&RVW&RQWURO0DQXDO(3$¶V

revised calculations indicated that the State of Nevada had mistakenly inflated the 

average and incremental cost-effectiveness of SCR by between 25 and 28 percent, 

as shown in the following tables. Id. Average cost-effectiveness is calculated as 

3WKHWRWDODQQXDOL]HGFRVWVRIFRQWUROGLYLGHGE\DQQXDOHPLVVLRQVUHGXFWLRQV ́40 

C.F.R. pt. 51, App. Y § IV(D)(4)(e). Average cost effectiveness indicates how 

much money it costs to remove each ton of pollution. Incremental costeffectiveness is calculated as the difference between the cost of a control compared 

to the next control option divided by the difference in annual emissions reductions 

between the two controls. Id. § IV(D)(4)(e). Incremental cost-effectiveness 

indicates how much more money it costs to remove an additional ton of pollutants 

beyond what the less-effective technology removes. 
20

7DEOH(3$¶VUHYLVHGHVWLPDWHRIWKHDYHUDJHFRVWHIIHFWLYHQHVVRI6&5

Reid Gardner unit 1HYDGD¶VFRVW

estimate5

(3$¶VUHYLVHGFRVW

estimate6

Percentage 

reduction in costs

Unit 1 $2827 $2110 25%

Unit 2 $2627 $1967 25%

Unit 3 $2932 $2183 25%

7DEOH(3$¶VUHYLVHGHVWLPDWHWKHLQFUHPHQWDOFRVWHIIHFWLYHQHVVRI6&5

Reid Gardner unit 1HYDGD¶VFRVW

estimate7

(3$¶VUHYLVHGFRVW

estimate8

Percentage 

reduction in costs 

Unit 1 $6370 $4534 28%

Unit 2 $6080 $4330 28%

Unit 3 $3856 $2756 28%

Having calculated that SCR would cost significantly less than the State had 

estimated, EPA concluded that SCR would be cost-effective. 77 Fed. Reg. at 

21,901. However, once EPA corrected enough errors to find that SCR would be 

cost-HIIHFWLYH(3$UHIXVHGWRFRUUHFWRWKHUHUURUVLQWKH6WDWH¶VFRVWDQDO\VLVId.

3>:@HGLGQRWDFFRXQWIRUWKHVHDGGLWLRQDOGLVFUHSDQFLHVLQRXUUHYLVHGFRVW

HVWLPDWH ́. 

 

5

 77 Fed. Reg. at 21,901. 

6 Id.

7 Id.

8 Id.
21

Specifically, EPA refused to correct errors such as the discount that vendors 

provide when they install pollution controls on multiple units at a facility, which 

typically reduces overall costs by at least 5 percent; and EPA refused to correct the 

StatH¶VDQDO\VLVWRUHIOHFWWKDW61&5XVHVPRUHDPPRQLDWKDQWKHKLJKHUperforming SCR, which greatly impacts costs because ammonia is between 24 

percent and 40 percent of the total operating costs of the controls. Id.; see also

3HWUD3OHVV%LOO3RZHUV5HYLHZRI(3$¶V3URSRVHG$SSURYDORIWKH5HYLVLRQWR

WKH6WDWHRI1HYDGD¶V6WDWH,PSOHPHQWDWLRQ3ODQWR,PSOHPHQWD5HJLRQDO+D]H

Program at 24, 29 (Aug. 22, 2011) [hereinafter Pless/Powers Report], attachment 

to Letter from Gloria Smith, Sierra Club to Thomas Webb, EPA Region 9 (Aug. 

22, 2011) [JA ]. The Pless/Powers Report indicated that fixing all errors in 

calculating costs would reduce the incremental cost effectiveness of SCR even 

further, to levels significantly bHORZ(3$¶VUHYLVHGFRVWHVWLPDWHVDVLQGLFDWHGLQ

the following table: 
22

Table 3: Incremental Cost Effectiveness of SCR 

Reid Gardner 

Unit

1HYDGD¶VFRVW

estimate, 

assuming 78-

81% control 

efficiency 9

(3$¶VUHYLVHG

cost estimate, 

assuming 85% 

control 

efficiency 10

Pless/Powers 

Report cost 

estimate, 

assuming 78-

81% control 

efficiency11

Pless/Powers 

Report cost 

estimate, 

assuming 

90% control 

efficiency12

Unit 1 $6370 $4534 $3713 $2745

Unit 2 $6080 $4330 $3552 $2656

Unit 3 $3856 $2756 $2554 $1971

With respect to visibility benefits, EPA also conducted its own modeling of 

the best performing technology, SCR, but the agency chose to limit its focus to 

visibility improvement at the Grand Canyon exclusively, ignoring improvements at 

other Class I areas. As Reid Gardner contributes to haze in at least five Class I 

areas (the Grand Canyon, Joshua Tree, Zion, and Bryce Canyon National Parks, 

and Sycamore Canyon Wilderness Area), the National Park Service and the 

Environmental Coalition urged EPA to follow the direction that EPA itself has 

routinely given to other states to consider the cumulative visibility improvement at 

 

9 Id.

10 Id.

11 Pless/Powers Report at 35 [JA ].

12 Id. 
23

all impacted areas. EPA nevertheless declined to consider cumulative impacts. 77 

Fed. Reg. at 21,904 (summarizing visibility impacts at only the Grand Canyon); 

see also 77 Fed. Reg. at 50,945. EPA found that installation of SCR would 

improve visibility by .38 deciviews at the Grand Canyon and provided no 

projections regarding benefits at other Class I Areas. 77 Fed. Reg. at 21,903-04. 

However, modeling commissioned by the Environmental Coalition indicated that 

installing SCR at Reid Gardner would improve visibility cumulatively by 3.12 

deciviews at all affected Class I areas. H. Andrew Gray, Modeling for the Reid 

Gardner Generating Station: Visibility Impacts in Class I Areas at 11 (Aug. 2011), 

Attachment to Letter from Gloria Smith, Sierra Club to Thomas Webb, EPA 

Region 9 (Aug. 22, 2011) [JA ]. 

The Environmental Coalition and the National Park Service further alerted 

EPA to the problem that it had estimated visibility improvements from SCR on the 

assumption that SCR would achieve only a 85 percent pollutant removal 

efficiency, whereas SCR vendors typically guarantee and EPA typically assumes 

that SCR will achieve at least a 90 percent removal efficiency. 77 Fed. Reg. at 

21,903. %\FRUUHFWLQJ(3$¶VDVVXPSWLRn of a lower removal rate as well as other 

DQRPDOLHVLQ(3$¶VDQDO\VLVWKH1DWLRQDO3DUN6HUYLFHFDOFXODWHG6&5¶VYLVLELOLW\

benefit to be 184 percent greater WKDQ(3$¶VHVWLPDWH1DWLRQDO3DUN6HUYLFH-XQH
24

&RPPHQWVRQ(3$¶V3URSRVHG)HGHUDO3ODQ at 16 [hereinafter NPS June 4, 

2012 Comments] [JA ].

Finally, the Environmental Coalition raised the concern that neither Nevada 

nor EPA had evaluated the visibility improvement from SCR in light of the amount 

of visibility improvement needed at the Class I areas polluted by Reid Gardner. As 

discussed above, for many of these Class I areas, improving visibility by small 

DPRXQWVHDFK\HDUZRXOGEHVXIILFLHQWWRDFKLHYH(3$¶VJRDORIUHWXUQLQJWKHVH

areas to natural visibility conditions by 2064; for example, improving visibility by 

only .07 deciviews a year would enable the Grand Canyon to attain natural 

visibility conditions by 2064. 77 Fed. Reg. at 75,704, 75,714. 

Notwithstanding the concerns raised by the Environmental Coalition and the 

1DWLRQDO3DUN6HUYLFH(3$¶VILQDOUXOHZDVODUJHO\XQFKDQJHGIURPWKHSURSRVDO

Without correcting fundamental errors in the calculation of both pollution control 

costs and visibiliW\EHQHILWV(3$FKRVHWKHLQIHULRU61&5DVWKH3EHVWV\VWHPRI

FRQWLQXRXVHPLVVLRQFRQWURO ́IRU5HLG*DUGQHURQWKHJURXQGVWKDWWKH6WDWHKDG

properly weighed costs and benefits. 77 Fed. Reg. at 50,937 (Aug. 23, 2012) 

(approving as BART for control of nitrogen oxides an emission limit of .02 

lb/MMBtu at units 1, 2, and 3, which could be achieved through installation of 

SNCR). 
25

6800$5<2)7+($5*80(17

(3$¶VIHGHUDOhaze plan for controlling nitrogen oxides pollution from Reid 

Gardner fails to meet the basic requirements of the Clean Air Act. With the goal of 

restoring clean air to national parks and wilderness areas, the Act requires coalILUHGSRZHUSODQWVVXFKDV5HLG*DUGQHUWRLQVWDOO3EHVWDYDLODEOHUHWURILW

WHFKQRORJ\ ́RU3%$57 ́7KHJRYHUQLQJUHTXLUHPHQWVGHILQH%$57WREHWKH

3EHVWV\VWHPRIFRQWLQXRXVHPLVVLRQFRQWURO ́EDVHGRQDILYH-factor analysis that 

includes the evaluation of visibility benefits and costs. 

$OWKRXJKWKHUHLVQRGLVSXWHWKDWVHOHFWLYHFDWDO\WLFUHGXFWLRQRU36&5 ́

technology is the most effective pollution control system for nitrogen oxides, EPA 

arbitrarily rejected this technology in favor of the inferior selective noncatalytic 

UHGXFWLRQRU361&5 ́WHFKQRORJ\(3$ based its conclusion on a fundamentally 

flawed cost-benefit analysis that artificially inflated the cost and artificially 

reduced the benefits of SCR. At the same time, EPA gave the inferior SNCR an 

unfair competitive advantage by underestimating its costs. Despite acknowledging 

glaring errors in its cost analysis, EPA refused to correct them, and instead 

claimed, with no rational basis, that such a correction would not change the result. 

EPA thus revealed a predetermined commitment to SNCR, despite the facts in the 

record. (3$¶VDUELWUDU\DQGFDSULFLRXVVHOHFWLRQRIthis inferior pollution control 

system LQYDOLGDWHGWKHDJHQF\¶V regional haze determination for Reid Gardner. 
26

$5*80(17

I. ST A ND A RD O F R E V I E W 

7KLV&RXUWUHYLHZV(3$¶VUXOHDFFRUGLQJWR3WKHJHQHUDOVWDQGDUGRIUHYLHZ

for agency actions set forth in the [APA], 5 U.S.C. §§ 701± ́Sierra Club v.

EPA, 671 F.3d 955, 961 (9th Cir. 2012) (citing Latino Issues Forum v. EPA, 558 

)GWK&LU3XUVXDQWWRWKH$3$(3$¶VILQDOUXOHPXVWEH

RYHUWXUQHGLIWKHDJHQF\¶VGHFLVLRQZDVDUELWUDU\FDSULFLRXVDQDEXVHRI

discretion, or otherwise inconsistent with the Clean Air Act and implementing 

regulations. See 5 U.S.C. § 706(2); 42 U.S.C. § 7607(d)(9); Sierra Club, 671 F.3d 

DW7KH&RXUWH[DPLQHVZKHWKHU3WKHDJHQF\DUWLFXODWHGDUDWLRQDOFRQQHFWLRQ

EHWZHHQWKHIDFWVIRXQGDQGWKHFKRLFHPDGH ́$UL]&DWWOH*URZHUV$VV¶QY86

Fish & Wildlife)GWK&LU7KH&RXUW3μPD\QRW

rubberstamp . . . administrative decisions that [are] inconsistent with a statutory 

PDQGDWHRUWKDWIUXVWUDWHWKHFRQJUHVVLRQDOSROLF\XQGHUO\LQJDVWDWXWH¶ ́

Sierra Club, 671 F.3d at 961 (quoting $UL]&DWWOH*URZHUV$VV¶Q, 273F.3d at 

1236); see also Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1183 (9th Cir. 

2012). 

Courts have found agency actions to be arbitrary and capricious where the 

agency merely cited technical evidence but did not explain why the data led the 

agency to arrive at its decision. Nw. Coal. for Alts. to Pesticides v. EPA, 544 F.3d 
27

1043, 1052 (9th Cir. 2008) (vacating a final decision that cited toxicological data 

but offered no clear explanation as to how the data led the agency to select a 

particular safety factor as opposed to other safety factors); see also $VV¶QRI3ULYDWH

Coll. & Univ. v. Duncan)6XSSG''&37KDWWKLV

explanation could be used to justify any determination at all demonstrates its 

DUELWUDULQHVV ́,IWKHDJHQF\IDLOHGWRSURYLGHDUDWLRQDOH[SODQDWLRQDWWKHWLPHRI

LWVGHFLVLRQWKHDJHQF\¶VDFWLRQPXVWEHRYHUWXUQHGWKHFRXUWFDQQRWLQYHQWLWV

own explanation or rely on post-hoc rationalizations by the agency. Wilderness

Watch, Inc. v. U.S. Fish & Wildlife Serv., 629 F.3d 1024, 1038-40 (9th Cir. 2010). 

Finally, if an agency relies on cost-benefit analysis, the analysis is arbitrary and 

capricious if it fails to properly calculate a value that could significantly alter the 

analysis. &WUIRU%LRORJLFDO'LYHUVLW\Y1DW¶O+LJKZD\7UDIILF6DIHW\$GPLQ538 

F.3d 1172, 1202 -03 (9th Cir. 2008). ,QRWKHUZRUGV3LWFDQQRWSXWDWKXPERQWKH

scale by undervaluing the benefits and overvaluing the costs of more stringent 

standards. ́ Id. at 1198. 

II. B O T H N E V A D A A ND EPA A RBI T R A RI L Y UND E R EST I M A T E D 

T H E V ISIBI L I T Y I MPR O V E M E N T F R O M SC R.

There is no dispute that SCR technology is the most advanced control 

technology for NOx pollution; SCR is, on average, twice as effective as the next 

best technology (SNCR) at controlling NOx pollution. 77 Fed. Reg. at 21,900, 

21,902. EPA nonetheless chose the inferior SNCR technology as BART, claiming 
28

that the relative visibility gains from SCR did not justify its higher cost. In 

arriving at this erroneous conclusion, EPA abandoned its standard cumulative 

approach to measuring visibility improvement, thus underestimating the visibility 

benefit offered by SCR and thwarting the visibility goal of the Clean Air Act as a 

result. The agency further failed to assume the standard 90 percent control 

efficiency for SCR, thus skewing its analysis even further. These anomalies 

UHSUHVHQWXQMXVWLILHGGHYLDWLRQVIURPWKHDJHQF\¶VVWDQGDUGDQDO\WLFDODSSURDFK and 

are the hallmark of arbitrary action. 

A. EPA Ignored the Cumulative Benefit of SC R in Its Analysis. 

EPA failed to consider the cumulative visibility benefit of SCR across all 

five national park and wilderness areas13 DIIHFWHGE\5HLG*DUGQHU¶VSROOXWLRQDQG

LQVWHDGIRFXVHGRQWKHWHFKQRORJ\¶VLPSDFWRQDVLQJOHSDUN2the Grand Canyon. 

$FFRUGLQJWRWKH1DWLRQDO3DUN6HUYLFHZKLFKXVHG(3$¶VRZQPRGHOLQJ

methodology, the cumulative benefit of SCR across all five areas is nearly two 

deciviews. NPS June 4, 2012 Comments at 16 [JA ]. The Environmental 

&RDOLWLRQ¶VPRdeling similarly showed a significant cumulative visibility benefit 

from SCR. August 2011 Gray Report at 11 [JA ]. These analyses of 

cumulative benefits indicate that the incremental costs of SCR are warranted, but 

EPA summarily declined to consider them. In fact, EPA itself modeled the 

 

13 Grand Canyon National Park, Zion National Park, Bryce National Park, Joshua 

Tree National Park, and Sycamore Canyon Wilderness Area 
29

cumulative benefit of SCR across all five affected areas, but inexplicably chose not 

to include the results of its cumulative modeling in its proposed action or to 

FRQVLGHUWKHFXPXODWLYHEHQHILWRI6&5LQLWVXOWLPDWHGHFLVLRQ(3$¶VGLVDYRZDO

RI6&5¶VFXPXODWLYHEHQHILWLVSODLQO\LQFRQVLVWHQWZLWKWKHVWDWXWHDQGZLWKWKH

DJHQF\¶VRZQVWDWHPHQWVDQGDSSURDFKHOVHZKHUH

A cumulative approach to measuring visibilLW\LVFRQVLVWHQWZLWKWKH$FW¶V

basic regional haze goal2natural visibility conditions in all national park and 

wilderness areas. 42 U.S.C. § 7491(a)(1). This is because visibility impairment in 

any given area may be due to the cumulative effect of pollution from various 

sources, even if each of those sources appears to have only a minor contribution 

when viewed in isolation. EPA itself acknowledged that a cumulative approach to 

viVLELOLW\LVQHFHVVDU\WRPHHWLQJWKHVWDWXWH¶VJRDOVLQRWKHUUXOHPDNLQJV77 Fed. 

Reg. 51,620, 51,631-3$XJ3(3$EHOLHYHVWKDWLWLVLPSRUWDQW to 

consider the visibility impact on multiple Class I areas. The goal of the visibility 

program is to remedy visibility impairment at all Class I areas. CAA 

$D ́76 Fed. Reg. 52,388, 52,$XJ3*LYHQWKDWWKH

national goal of the program is to improve visibility at all Class I areas, it would be 

short-sighted to limit the evaluation of the visibility benefits of a control to only 

WKHPRVWLPSDFWHG&ODVV,DUHD ́7KLVFDVHLVQRH[FHSWLRQYLVLELOLW\LPSDLUPHQW

LQWKHUHJLRQ¶V&ODVV,DUHDVLQFOXGLQJWKH*UDQG&DQ\RQUHVXOWVIURPWKH
30

combined effect of multiple sources of pollution. By failing to acknowledge and 

UHPHG\5HLG*DUGQHU¶VFRQWULEXWLRQWRWKHYLVLELOLW\SUREOHPLQDOOILYH

VXUURXQGLQJ&ODVV,DUHDV(3$¶VDFWLRQLVLQFRQVLVWHQWZLWKWKH&OHDQ$LU$FW¶V

goal of achieving natural visibility conditions in WKRVHDUHDV:KHQDQDJHQF\¶V

interpretation of a statute thus conflicts with clear congressional intent, it is not 

entitled to deference and cannot be upheld. Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 843 n.9, 844 (1984). 

(3$¶VH[FOXVLYHIRFXVRQ5HLG*DUGQHU¶VLPSDFWRQDVLQJOHQDWLRQDOSDUN

QRWRQO\IUXVWUDWHVWKH$FW¶VJRDORIeliminating manmade haze, but is also 

LQFRQVLVWHQWZLWK(3$¶VHVWDEOLVKHGSROLF\DQGDSSURDFKHOVHZKHUH See W. States

Petroleum Ass'n v. EPA, 87 F.3d 280, 285 (9th Cir. 1996) >KHUHLQDIWHU3WSPA ́@

3:e need not defer to the EPA because the EPA has abused its discretion in 

GHSDUWLQJIURPLWVRZQSULRUVWDQGDUGV ́. Specifically, in its regional haze 

determination for the San Juan Generating Station, EPA explained that: 

In fully considering the visibility benefits anticipated from the use of 

an available control technology as one of the factors in selection of 

[best available retrofit technology for nitrogen oxides pollution], it is 

appropriate to account for visibility benefits across all affected Class I 

DUHDV«:KHUHDVRXUFHVLJQLILFDQWO\LPSDFWVVRPDQ\&ODVV,

DUHDVRQVRPDQ\GD\VWKHFXPXODWLYHμWRWDO>GHFLYLHZ@¶PHWULFLVRQH

way to take magnitude of the impacts of the source into account. 

«*LYHQWKDWWKHQDWLRQDOJRDORIWKHSURJUDPLVWRLPSURYHYLVLELOLW\

at all Class I areas, it would be short-sighted to limit the evaluation of 

the visibility benefits of a control to only the most impacted Class I 

area.
31

76 Fed. Reg. 52,388, 52,430 (Aug. 22, 2011). EPA thus cautioned against the 

statute-defeating effect of failing to consider cumulative impacts. 7KHDJHQF\¶V

regional haze rule for the neighboring Four Corners Power Plant confirmed the 

importance of considering the cumulative benefit of a particular control technology 

DVIROORZV3(3$EHOLHYHVWKDWLWLVLPSRUWDQWWRFRQVLGHUWKHYLVLELOLW\LPSDFWRQ

multiple Class I areas. The goal of the visibility program is to remedy visibility 

impairment at all Class I areas. &$$$D ́77 Fed. Reg. 51,620, 51,631-2 

(Aug. 24, 2012). Responding to criticism of its cumulative analysis for Oklahoma, 

(3$H[SODLQHGWKDW3>F@OHDUO\YLVLELOLW\EHQHILWVIURPHPLVVLRQUHGXFWLRQVZLOO

be spread among all affected Class I areas, not only the most affected area, and 

VKRXOGEHFRQVLGHUHGLQHYDOXDWLRQRIEHQHILWVIURPSURSRVHGUHGXFWLRQV ́76 Fed. 

Reg. 81,728, 81,736 (Dec. 28, 2011). In its regional plan for Montana, the agency 

VWDWHG3ZHFRQVLGHUHGWKHYLVLELOLW\LPSURYHPHQWDWDOO&ODVV,DUHDVZLWKLQ

NPRIWKHVXEMHFW>SROOXWLQJVRXUFH@ ́77 Fed. Reg. 57,864, 57,869 (Sept. 18, 

2012). And, most recently, EPA included a cumulative impact analysis for its 

proposed regional haze determination for Navajo Generating Station. 78 Fed. Reg. 

8,274, 8,)HE3$OVRVKRZQDUHWKHFXPXODWLYHGHFLYLHZLPSDFWV

which are the simple sum of impacts or improvements over all the Class I areas. 

Table 10 shows the average number of days with a baseline impact or 

improvement of at leasWGY>@ ́. 
32

EPA has taken the same view in evaluating the legal and factual sufficiency 

of state regional haze plans. The agency faulted Arizona for not considering 

cumulative benefits as follows: 

[I]nstallation of more stringent controls . . . would result in visibility 

benefits at multiple Class I areas, yet [Arizona] chose to consider the 

benefits only at the most impacted area. Where, as here, the benefits 

of controls have been modeled for a number of surrounding areas and 

consideration of these benefits is useful in determining the appropriate 

level of controls, EPA does not agree that these benefits may be 

ignored. . . . EPA disagrees that state flexibility extends to 

categorically excluding consideration of visibility improvements 

occurring at multiple Class I areas. 

77 Fed. Reg. 72,512, 72,519 (Dec. 5, 2012). EPA also required a cumulative 

LPSDFWDSSURDFKLQLWVUHYLHZRI1HZ<RUN¶VUHJLRQDOKD]HSODQ77 Fed. Reg. 

24,794, 24,814 (Apr. 3,QPDNLQJ%$57Geterminations, EPA also 

recommends the consideration of cumulative impacts and improvements that could 

RFFXUDWDOORIWKH&ODVV,DUHDVDSDUWLFXODUIDFLOLW\PLJKWLPSDFW ́ 14 EPA echoed 

this view to the State of Nebraska. 77 Fed. Reg. 40,150, 40,156 (July 6, 

3>$@FXPXODWLYHLPSDFWVDQDO\VLVLVDXVHIXOWRROIRUH[DPLQLQJWKHLPSDFW

of a BART-subject source and the visibility improvement to be gained by the 

DGGLWLRQRIHPLVVLRQFRQWUROV ́$QGDVWKH1DWLRQDO3DUN6HUYLFHSRLQWHGRXWLQ

its comments on the EPA action at issue in this case, EPA also required the State of 

 

14 The agency similarly considered cumulative benefits in reviewing New 

+DPSVKLUH¶VUHJLRQDOKD]HSODQ77 Fed. Reg. 50,602, 50,603 (Aug. 22, 2012). 
33

Colorado to provide the agency with a cumulative analysis. NPS June 14, 2012 

Comments at 15 [JA ]. 

Despite (3$¶VFOHDUDQGFRQVLVWHQWDSSURDFKUHTXLULQJDFXPXODWLYHLPSDFW

analysis elsewhere, EPA failed to consider the cumulative benefit of SCR here. 

While the agency claimed to have considered the cumulative benefit of SCR, 77 

Fed. Reg. at 50,938, 50,943-44 it acknowledged that it 3IRFXVHGODUJHO\RQWKH

benefits at [the Grand Canyon] in our proposed action and placed little weight on 

the bHQHILWVDWWKHUHPDLQLQJIRXU&ODVV,DUHDV ́Id. at 50,945 (emphasis added). 

In fact, there is no HYLGHQFHVXSSRUWLQJ(3$¶VFODLPWKDWLWFRQVLGHUHGWKH

cumulative visibility improvement in its cost-benefit analysis of SCR. Moreover, 

there is no justification for dismissing cumulative benefits at other Class I areas 

JLYHQWKHDJHQF\¶VRZQpractice of requiring cumulative benefits elsewhere. See

WSPA, 87 F.3d at 285 (agency¶V3EURDGGLVFUHWLRQDU\SRZHU ́LVQRW3DQDGHTXDWH

EDVLVWRVXSSRUWLWVRWKHUZLVHDUELWUDU\WUHDWPHQW ́RIDVLQJOHFDVHLQWHUQDO

citations omitted). 5HYHUVDORI(3$¶VDFWLRQLVDSSURSULDWHZKHQDVKHUH3WKH

EPA has failed to offeUDVXIILFLHQWH[SODQDWLRQIRULWVGLIIHUHQWLDOWUHDWPHQWRI ́D

particular state under the &OHDQ$LU$FW ́WSPA, 87 F.3d at 285; McClaskey v.

U.S. Dep't of Energy, 720 F.2d 583, 587 (9th Cir. 1983). 
34

B. EPA Assumed an Unreasonably Low Pollution Control 

Performance for SCR.

In assessing visibility benefits, EPA compounded its apparent bias against 

6&5E\XQGHUHVWLPDWLQJWKHWHFKQRORJ\¶VH[SHFWHGSHUIRUPDQFH$QDFFXUDWH

estimate of the visibility gains from a particular pollution control technology 

necessarily requires an accurate estimate RIWKDWWHFKQRORJ\¶VHIIHFWLYHQHVV+HUH

contrary to its own policy governing cost analysis, EPA significantly 

XQGHUHVWLPDWHG6&5¶VSROOXWLRQFRQWUROSHUIRUPDQFHE\LQFRUUHFWO\DVVXPLQJWKDW

SCR would remove only 85 percent RI5HLG*DUGQHU¶VQLWURJHQR[LGHVHPLVVLRQV

despite the fact that the established industry standard for SCR assumes a minimum 

pollution removal of 90 percent. 7KLVDVVXPSWLRQGHILHV(3$¶VRZQguidelines, 

which counsel states to 3PDNHUHDVRQDEOHDQGVXSSRrtable assumptions regarding 

control efficiencies. An unrealistically low assessment of the emission reduction 

potential of a certain technology could result in inflated cost-HIIHFWLYHQHVVILJXUHV ́

70 Fed. Reg. 39,104, 39,168 (July 6, 2005) (revising the regional haze rule and 

issuing guidelines for BART determinations). EPA itself found that simply

assuming a 5 percent increase in control efficiency (to 90 percent) would 

correspond to a 10 percent increase in visibility benefit to the Grand Canyon. 77 

Fed. Reg. at 50,943. 

In its proposed action, EPA acknowledged that SCR vendors typically 

guarantee a 90 percent removal rate. 77 Fed. Reg. 21,37\SLFDO6&5FDWDO\VW
35

YHQGRUJXDUDQWHHVFDQLQGLFDWHSHUFHQW>QLWURJHQR[LGHV@UHGXFWLRQ ́. This 

point was reiterated by both the Environmental Coalition and the National Park 

6HUYLFHLQWKHLUFRPPHQWVRQ(3$¶VDFWLRQ Letter from Suma Peesapati, 

Earthjustice to Thomas Webb, EPA Region 9 at 7 (June 4, 2012) [hereinafter 

Environmental Coalition 2012 Comments] [JA ]; NPS June 4, 2012 Comments 

[JA ]. As explained in the expert report accompanying the Environmental 

&RDOLWLRQ¶VFRPPHQWVRQ(3$¶VLQLWLDODFWLRQLWLVUHDVRQDEOHWRDVVXPHD

percent control of nitrogen oxides by SCR for Reid Gardner given the impressive 

and growing track record of successful SCR installations (over 300 in operation in 

the United States alone) and the low sulfur content of the coal fired at Reid 

Gardner (0.29 percent-0.57 percent). Pless/Powers Report at 5-20 >-$@(3$¶V

own experts have assumed a 90 percent (and even higher) removal efficiency for 

SCR in other regional haze determinations and did not dispute the fact that in 2011 

alone, 21 coal-fired electrical generating units achieved a control efficiency of 90 

percent or better using SCR and that 11 of those units were dry-bottom, wall-fired 

XQLWVOLNH5HLG*DUGQHU¶VXQLWV. 77 Fed. Reg. at 50,943. 

'HVSLWHWKHRYHUZKHOPLQJHYLGHQFHLQWKHUHFRUGLQFOXGLQJ(3$¶VRZQ

acknowledgment that a 90 percent removal efficiency is assumed for modern SCR 

systems, EPA reached the arbitrary conclusion that that an 85 percent removal 
36

HIILFLHQF\VKRXOGEHDVVXPHGIRU6&5DWWKLVSRZHUSODQW(3$¶VRQO\H[SODQDWLRQ

for its anomalous assumption in this case was as follows: 

The coal composition is also an important component of estimating 

the [nitrogen oxides] emissions rate that a facility can achieve. [Reid 

Gardner] is capable of purchasing coal on the spot market so there is 

likely to be variability in the [nitrogen oxides] emissions rate that 

would be achievable with SCR or SNCR. As previously discussed in 

the response to Comment 2, [Reid Gardner] receives its coal by rail 

line and has access to different ranked coals with varying nitrogen 

content, which influence the [nitrogen oxides] concentration in the 

exhaust going to either SNCR or SCR controls. (3$¶VSROLF\LVWRVHW

an emission limit that would reasonably accommodate the various 

coal sources under these circumstances. 

Id.

7KLVUHVSRQVHRIIHUHGIRUWKHILUVWWLPHLQ(3$¶VILQDODFWLRQULQJVKROORZ

First, the agency makes no attempt to identify the potential sources of Reid 

*DUGQHU¶VFRDOVXSSO\RUVKRZWKDWWKHVSHFLILFUDQJHRIQLWURJHQFRQWent in Reid 

*DUGQHU¶V3YDULDEOH ́VXSSO\VRPHKRZGLVWLQJXLVKHVWKLVSRZHUSODQWIURPWKH

multitude of coal plants that have achieved lower levels of controlled nitrogen 

oxides emissions elsewhere. Any concern about fuel-bound nitrogen is particularly 

implaXVLEOHJLYHQWKDWZHVWHUQFRDOVZKLFKOLNHO\FRPSULVHWKHOLRQ¶VVKDUHRI

5HLG*DUGQHU¶VFRDOVXSSO\DUHQRWNQRZQWRKDYHDKLJKQLWURJHQFRQWHQW

6HFRQG(3$¶VUHVSRQVHLJQRUHVWKHIDFWWKDWWKHQLWURJHQFRQWHQWLQWKHFRDOLWVHOI

is only partially reVSRQVLEOHIRUWKHSODQW¶VSURGXFWLRQRIQLWURJHQR[LGHVSROOXWLRQ

WKHFRPEXVWLRQWHPSHUDWXUHLQWKHFRDOXQLW¶VERLOHUDQGQLWURJHQOHYHOVLQWKH
37

ambient air surrounding the plant are also key factors in the formation of this 

pollutant. Third, while EPA claimed that a higher amount of nitrogen oxides 

pollution entering the SCR translates to a higher amount of controlled emissions 

that exit the SCR,15 EPA provided no evidence showing that the nitrogen content 

of coal affects the percentage of nitrogen oxides pollution removed by SCR 

technology. For all these reasons, EPA offers no rational basis for its 85 percent 

removal assumption for SCR instead of the standard 90 percent removal typically 

JXDUDQWHHGE\WKHWHFKQRORJ\¶VYHQGRUV

The 1LQWK&LUFXLWKDVVWDWHGWKDWLWZLOO3QRWGHIHUWRDQDJHQF\GHFLVLRQWKDW

μLVZLWKRXWVXEVWDQWLDOEDVLVLQIDFW¶ ́ TXFVRQ+HUSHWRORJLFDO6RF¶\Y6DOD]DU, 566 

F.3d 870, 878 (9th Cir. 2009) (internal citations omitted). This is because deference 

WRWKH$JHQF\LVQRWDSSURSULDWHZKHQWKHW\SHRI3JHQHUDOL]HG ́GLVFXVVLRQOLNH

the one offered by EPA in this case, does not 3H[SODLQKRZWKH$JHQF\DUULYHGDW

the specific FRQFOXVLRQ ́WKDWDQSHUFHQWUHPRYDOHIILFLHQF\IRUSCR is a rational 

assumption. Bluewater Network v. EPA, 370 F. 3d 1, 21 (D.C. Cir. 

2004)(emphasis in original). 3>,@QRUGHUWRGHWHUPLQHZKHWKHU>WKH$JHQF\¶V@

GHFLVLRQUHIOHFWVDμUDWLRQDOFRQQHFWLRQEHWZHHQWKHIDFWVIRXQGDQGWKHFKRLFH

PDGH¶DUHDVRQDEOHH[SODQDWLRQRIWKHVSHFLfic analysis and evidence upon which 

 

15 37KHFRDOFRPSRVLWLRQLVDOVRDQLPSRUWDQWFRPSRQHQWRIHVWLPDWLQJWKH

>QLWURJHQR[LGHV@HPLVVLRQVUDWHWKDWDIDFLOLW\FDQDFKLHYH ́77 Fed. Reg. at 

50,943. 
38

WKH$JHQF\UHOLHGLVQHFHVVDU\ ́Id. &RXUWVGRQRW3VLPSO\DFFHSWZKDWHYHU

FRQFOXVLRQDQDJHQF\SURIIHUVPHUHO\EHFDXVHWKHFRQFOXVLRQUHIOHFWVWKHDJHQF\¶V

judgment. In order to survive judicial review . . . an agency action must be 

supporteGE\μUHDVRQHGGHFLVLRQPDNLQJ¶ ́ 7ULSROL5RFNHWU\$VV¶QY%XUHDXRI

Alcohol, Tobacco, Firearms, and Explosives, 437 F.3d 75, 76 (D.C. Cir. 2006) 

(internal citations omitted). $SSO\LQJWKHVHSULQFLSOHVWRWKLVFDVH(3$¶VDFWLRQ

cannot survive judicial review because its XQMXVWLILHGUHMHFWLRQRI6&5¶VVWDQGDUG

UHPRYDOHIILFLHQF\ODFNVDUHDVRQHGEDVLVDQGWKXVIDLOVWRUHIOHFW3UHDVRQHG

GHFLVLRQPDNLQJ ́Id. For all of the above reasons, EPA severely underestimated 

the benefit of SCR, which, in turn, resulted in an arbitrary determination that the 

EHQHILWVRI6&5GLGQRWMXVWLI\WKHWHFKQRORJ\¶VUHODWLYHO\KLJKHUFRVW

III. EPA¶S R E G I O N A L H A Z E D E T E R M IN A T I O N R ESTS O N A N 

A RBI T R A R Y A N A L YSIS O F C OSTS. 

(3$¶VWUHDWPHQWRIFRVWVLQLWVFRVW-benefit analysis was similarly skewed in 

favor of SNCR. EPA improperly biased its cost analysis in this case by artificially 

inflating the cost of best technology (SCR) and artificially depressing the cost of 

the next best technology (SNCR). Although Nevada had the initial obligation to 

consider costs in proposing a BART determination, EPA was responsible for 

ensuring that the State complied with the Clean Air Act and properly considered 

costs. 42 U.S.C. §§ 7410(k), 7491(g)(2). EPA corrected some of the errors in 

1HYDGD¶VDQDO\Vis, but refused to correct all of them, even though correcting all of 
39

the errors would have reduced tKHDJHQF\¶VFRVWHVWLPDWHRI6&5E\-40 percent. 

EPA then UHDIILUPHGLWVDSSURYDORI1HYDGD¶VFRVW-benefit analysis, 

notwithstanding the facts. EPA thus abdicated its responsibility under the Clean 

Air Act to critically review a SIP submission when it uncritically accepted the 

6WDWH¶Vassertion that the costs of SCR do not justify the benefits2an assertion 

lacking any meaningful explanation in the record. 

A. EPA Overestimated the Cost of SC R and Underestimated the

Cost of SN C R.

In their 2011 comments, the Environmental Coalition, the National Park 

Service, and the United States Fish and Wildlife Service demonstrated that 

1HYDGD¶VFRVWHVWLPDWHVZHUHGHHSO\IODZHGSee 77 Fed. Reg. at 21,901 n.14. 

EPA agreed, and conducted an independent analysis to remedy some of the 

errors2namely, WKH6WDWH¶V inclusion of costs that should not be considered under 

(3$¶V Cost Control Manual. Id. DW3:HDJUHHWKDW1'(3LQFOXGHG

inappropriate costs and our analysis excludes those costs that are not allowed by 

WKH&&0 ́7KH6WDWH¶VHUURUVZHUHVLJQLILFDQWEPA¶VUHYLVHGHVWLPDWHRIWKH

average cost effectiveness of SCR was 25 percent EHORZWKH6WDWH¶VHVWLPDWHVDQG

(3$¶VUHYLVHGLQFUHPHQWDOFRVW-effectiveness figures were 28 percent below the 

6WDWH¶VILJXUHVId.

+RZHYHU(3$GLGQRWFRUUHFWDOORI1HYDGD¶VHUURQHRXVFRVWFDOFXODWLRQV

In view of Ninth Circuit law rejecting a cost-benefit analysis premised on a faulty 
40

monetization, the Environmental Coalition submitted comments to EPA urging the 

agency to correct remaining errors in its cost analysis. See Ctr. for Biological 

Diversity, 538 F.3d at 1202-03; Letter from Suma Peesapati, Earthjustice to 

Thomas Webb, EPA Region 9 at 4-7 (June 4, 2012) [JA ] (37KH(3$¶VUHYLVHG

SCR cost analysis excluded certain inappropriate costs (owners cost, AFUDC, 

surcharges), but did not incorporate all of our recommended revisions ± namely, to 

include multiple units discounts, and use the correct capital recovery factor, all of 

which would further reduce cost and improve cost effectiveness of SCR compared 

61&5 ́ 7KH3OHVV3RZHUV5HSRUWGHWHUPLQHGWKDWLIDOORIWKH6WDWH¶VHUURUVZHUH

corrected, the incremental cost-effectiveness of SCR would be significantly lower 

than EPA indicated. For Unit 1, the incremental cost effectiveness of SCR is 

$2745, which is nearly 40 percent lower than (3$¶V estimate; for Unit 2, the 

incremental cost effectiveness of SCR is $2656, nearly 40 percent lower than 

(3$¶V estimate; and for Unit 3, the incremental cost effectiveness of SCR is 

$1971, nearly 30 percent lower than (3$¶V estimate. Pless/Powers Report at 35 

[JA ].16

 

16 These figures assume that SCR removes 90 percent of pollutants. The 

3OHVV3RZHUV5HSRUWDOVRFDOFXODWHGWKHVHILJXUHVXVLQJWKH6WDWH¶VDVVXPSWLRQWKDW

SCR removes between 78 percent and 82 percent of pollutants and found that the 

incremental cost effectiveness of SCR would be $3713, $3552 and $2554 for Units 

1, 2, and 3 respectively. Pless/Powers Report at 35 [JA ]. These figures are 

QHDUO\SHUFHQWEHORZ(3$¶VHVWLPDWHVIRU8QLWVDQGDQGQHDUO\SHUFHQW

EHORZ(3$¶VHVWimate for Unit 3. Compare id. with 77 Fed. Reg. at 21,901. 
41

EPA agreed with the Environmental Coalition that additional, uncorrected 

HUURUVUHPDLQHGLQ1HYDGD¶Vcost estimates. 3:HDJUHHWKDWWKHUHFRUGGRHVQRW

support the positions that [Nevada] KDVWDNHQRQWKHVHFRVWLWHPV ́77 Fed. Reg. at 

21, 901. EPA then proceeded to ignore these errors on the grounds that correcting 

them was unnecessary because EPA already had determined that SCR was costeffective contrary to the 6WDWH¶Vconclusion: 

Aside from these items, other commenters allege that aspects of 

[Nevada]¶VFRVWHVWLPDWHVZHUHXQMXVWLILHGRURYHUHVWLPDWHG such as a 

failure to account for multiple unit discounts and overestimated 

reagent costs. We agree that the record does not support the positions 

that [Nevada] has taken on these cost items. However, we did not 

account for these additional discrepancies in a revised cost estimate 

since disallowing those costs not in the [cost control manual] resulted 

in our finding that SCR is cost-effective. 

Id. In the final rule, EPA again freely admitted that the cost estimates contained 

errors that EPA had not corrected. Id. DW32XUSURSRVDOQRWHGWKDWZHGLG

not revise the cost-effectiveness calculation to adjust for all the discrepancies with 

the CCM [cost control manual] because on our initial adjustments we found that 

SCR was not cost-SURKLELWLYH ́ EPA failed to correct errors that would 

significantly affect the costs of the pollution controls at issue. The remaining 

errors in the cost calculations improperly biased WKHDJHQF\¶VFRVW-benefit analysis 

against SCR. 

 EPA exacerbated its skewed cost analysis by failing to correct the errors in 

1HYDGD¶VHVWLPDWHVRIWKHFRVWRI61&5WKHcompeting control ultimately selected 
42

as BART. The Environmental Coalition submitted evidence that the State 

underestimated the amount of ammonia used for SNCR, and did not properly 

account for the increased maintenance costs from use of ammonia. Environmental 

Coalition 2012 Comments at 5-6 [JA ]. Ammonia is a major operating expense 

for SNCR. EPA responded to these concerns in the same way it responded to 

criticisms of the SCR cost calculations: by saying that it did not need to fix all of 

WKH6WDWH¶VHUURUVLQRUGHUWRDSSURYHWKH6WDWH¶VGHFLVLRQ,QUHVSRQVHWR&RPPHQW

3WKHFRVWRI6&5LVRYHUHVWLPDWHGDQGWKHFRVWRI61&5LVXQGHUHVWLPDWHG ́

(3$UHVSRQGHGWKDW3>H@YHQLIWKHDYHUDJHDQGLQFUHPHQWDOFRVW-effectiveness 

between SCR and SNCR were somewhat GLIIHUHQW1'(3¶V%$57GHWHUPLQDWLRQ

would still be approvable based on its reasonable weighing of the cost and 

YLVLELOLW\LPSURYHPHQWIDFWRUV ́77 Fed. Reg. at 50,941. 

 In short, EPA acknowledged that the State of Nevada significantly 

overestimated the cost of SCR, which skewed the decision-making process in favor 

RIOHVVHIIHFWLYHFRQWUROV(3$FRUUHFWHGVRPHRIWKH6WDWH¶VPLVWDNHVEXW

conceded that EPA did not correct all of them. As a result, when EPA made its 

final decision, EPA did not know the actual costs2or even the true range of 

costs2of SCR. II(3$KDGFRUUHFWHGDOOWKH6WDWH¶VPLVWDNHVWKHLQFUHPHQWDOFRVW

effectiveness of SCR would be nearly 40 percent lower than (3$¶V revised 

estimates for Units 1 and 2, and nearly 30 percent lower for Unit 3. It was 
43

DUELWUDU\DQGFDSULFLRXVIRU(3$WRDSSURYHWKH6WDWHRI1HYDGD¶VZHLJKLQJRI

costs against benefits without correcting errors that would significantly change the 

relative costs of controls. 

As EPA itself has proclaimed, EPA must critically review SIP submissions; 

(3$LVQRWDUXEEHUVWDPSDQGFDQQRWDSSURYHDVWDWHSODQWKDWUHOLHVRQ3IDXOW\

cost data or relies on erroneous mathematical calculations that materially overstate 

or understate thHFRVWRIFRQWUROV ́&RQVROLGDWHGBrief of Respondent EPA at 42, 

North Dakota v. EPA, No. 12-1844 (8th Cir. brief filed Dec. 10, 2012); see also 

Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1181 (9th Cir. 2012); Mich.

Dept. of Envtl. Quality v. Browner, 230 F.3d 181, 183 (6th Cir. 2000). In taking 

ILQDODFWLRQRQWKH6WDWH¶VSURSRVDO(3$KDGDQobligation to articulate a rational 

explanation for its final decision. Wilderness Watch, Inc., 629 F.3d at 1038-39. 

Rather than provide the requisite explanation and support its findings with 

facts, EPA was explicit in its intent to approve 1HYDGD¶V choice of technology 

regardless of the actual cost data: 3[e]ven if the average and incremental costeffectiveness between SCR and SNCR were somehow different, NDEP¶s BART 

determination would still be approvable based on its reasonable weighing of the 

FRVWDQGYLVLELOLW\LPSURYHPHQWIDFWRUV ́ Id. at 50,941. EPA providedand could 

provideno reason why this should be so. Undisputed evidence in the record 

demonstrates that the cost differential between SCR and SNCR changes very 
44

considerably when DOORIWKHDFNQRZOHGJHGHUURUVLQWKH6WDWH¶VDQDO\VLV are 

corrected. Absent an explanation why SCR should not be identified as BART in 

light of these adjusted costs, EPA¶V ultimate BART determination is indefensible. 

In short, EPA freely admits to using significantly inflated costs in the cost-benefit 

analysis that determined the outcome of its regional haze analysis. This arbitrary 

approach necessarily renders its haze determination invalid. See Ctr. for 

Biological Diversity, 538 F.3d at 1202-03. 

B. The Record 'RHV1RW6XSSRUW(3$¶V Rejection of the Most 

Effective Control.

EPA failed to support its conclusion that the incremental costs of SCR do 

not justify the incremental visibility benefits this superior technology would 

achieve. In evaluating a state plan¶VFRQVLVWHQF\ZLWK all applicable requirements, 

(3$PXVWDUWLFXODWH3DUDWLRQDOFRQQHFWLRQEHWZHHQWKHIDFWVIRXQGDQGWKHFKRLFH

PDGH ́$UL]&DWWOH*URZHUV$VV¶Q, 273 F.3d at 1236. It is not sufficient for EPA 

to simply place incorrect data in the record and then pick a result at random. For 

example, in Nw. Coal. for Alts. to Pesticides v. EPA, the agency considered 

extensive data regarding the toxicological effects of pesticides in order to select a 

μsafety factor¶2a margin of exposure to pesticides that would protect people from 

adverse effects. 544 F.3d at 1052. But while the agency considered extensive 

data, EPA failed to explain the connection between the data and its decision. Id. 

EPA failed to explain why the data led the agency to select a particular safety 
45

factor, rather than any other safety factor, leading the court to conclude that 3>D@V

IDUDVZHFDQWHOOIURPWKHUHFRUG ́(3$KDGUHDFKHGLWVGHFLVLRQ3DUELWUDULO\ ́Id.; 

see also $VV¶QRI3ULYDWH&ROO	8QLY, 870 F. Supp. 2d aW37KDWWKLV

explanation could be used to justify any rate DWDOOGHPRQVWUDWHVLWVDUELWUDULQHVV ́ 

6LPLODUO\KHUH(3$IDLOHGWRH[SODLQRUVXSSRUWLWVGHWHUPLQDWLRQWKDW1HYDGD¶V

cost-EHQHILWDQDO\VLVZDVDFFXUDWHDQGVDWLVILHGWKH$FW¶VUHJLRQDO haze 

requirements. 

This evidentiary void is particularly stark given the record-based evidence 

showing that the visibility improvement from SCR would be significant. Nevada 

calculated the visibility improvement needed each year to eliminate all 

anthropogenic haze pollution by 2064 at the Jarbridge Wilderness Area1HYDGD¶V

only Class I area. 76 Fed. Reg. at 36,456-58, 36,464-65. The URP for Jarbridge is 

.07 deciviews per year; this means that if all sources inside and outside Nevada 

reduce emissions so as to improve visibility by .07 deciviews per year, Jarbridge 

will attain natural visibility conditions by 2064. Id. at 36,456. 

7KH853LVVLPLODUIRUWKHQDWLRQDOSDUNVPRVWLPSDLUHGE\5HLG*DUGQHU¶s 

pollution. For example, Arizona calculated that to achieve natural visibility 

conditions in the Grand Canyon by 2064, visibility would need to improve by .07 

deciviews per year. 77 Fed. Reg. at 75,704, 75,714 (Dec. 12, 2012). But in 

practice, Arizona expects to achieve emissions reductions that will yield only .03 
46

deciviews improvement per year. Id. The URP for Sycamore Canyon Wilderness 

Area is .14 deciviews per year, see 77 Fed. Reg. at 75,714, and the URP for 

Joshua Tree National Park is .20 deciviews per year. 76 Fed. Reg. at 13,951 (Mar. 

15, 2011), finalized by 76 Fed. Reg. 34,608. 

According to EPA, installing SCR at Reid Gardner would improve visibility 

at the Grand Canyon by .38 deciviews, and .1 deciview more than the next-mosteffective control. 77 Fed. Reg. at 21,904. Putting aside the Environmental 

&RDOLWLRQ¶VDUJXPHQWVDERXWWKHDFFXUDF\RIWKLVHVWLPDWHHYHQWKLVDUWLILFLDOO\ORZ

HVWLPDWHRI6&5¶VEHQHILWV greatly exceeds the yearly improvement needed from 

all sources (.07 deciviews) to achieve the statutory goal of natural visibility at the 

Grand Canyon. 

This cursory examination of the uniform rate of progress for Class I areas 

demonstrates that the assessment of visibility improvement relative to costs must 

be anchored to the fundamental goal of achieving reasonable progress toward 

visibility goals. In other words, the visibility improvement from controls must be 

judged in relation to the amount of improvement needed to satisfy the statutory 

goal of attaining natural visibility conditions. See 42 U.S.C. § 7491(a)(1). Judged 

LQWKDWOLJKW3VPDOO ́QXPEHUVPD\EHLPSRUWDQW because small, yearly 

improvement in visibility may be adequate to achieve the statutory mandate. 

Moreover, the visibility benefits from SCR are far larger than EPA estimated; the 
47

cumulative visibility benefit from SCR are as much as 184 percent higher than that 

estimated by EPA and greatly exceed the small improvement needed to make 

reasonable progress. NPS June 4, 2012 Comments at 16[JA ].

EPA never explained why the visibility benefits associated with installing 

SCR at Reid Gardner would be insufficient to warrant the costs of the SCR retrofit. 

According to the agency, there is no 3bright line for cost-effectiveness ́77 Fed. 

Reg. at 50,941. However, in the absence of any articulated standard or any 

explanation of its cost benefit calculus, EPA was simply acting on an unsupported 

3EHOLHI ́WKDWthe visibility improvement from SCR does not justify its cost. Id. In 

Chem. Mfg. $VV¶QY EPA, the D.C. Circuit summarLO\UHMHFWHGDVLPLODU3EHOLHI ́-

based conclusion by EPAFKDUDFWHUL]LQJLWDV3DGG>LQJ@QRWKLQJWRWKHDJHQF\¶V

defense of its thesis except perhaps the implication that it was committed to its 

SRVLWLRQUHJDUGOHVVRIDQ\IDFWVWRWKHFRQWUDU\ ́28 F.3d 1259, 1266 (D.C. Cir. 

1994). 

6LPSO\ODEHOLQJWKHFRVWVDV3KLJK ́DQGWKHEHQHILWV3VPDOO ́GRHVQRW

GLVFKDUJH(3$¶VREOLJDWLRQWRSURYLGHDUDWLRQDOH[SODQDWLRQIRULWVUXOHInstead, 

the agency must provide some basic explanation for the process it used to weigh 

costs against benefits. The record contains abundant detail regarding how the State 

and EPA calculated costs and benefits. But the crucial, dispositive stage of the 

decision-making was taking those costs and benefits and weighing them. And for 
48

that crucial, dispositive stage of the rulemaking, the record goes dark. See Nw.

Coal. for Alts. to Pesticides, 544 F.3d at 1052 3$VIDUDVZHFDQWHOOIURPWKH

UHFRUG ́WKH6WDWHDQG(3$UHMHFWHG6&53DUELWUDULO\ ́

Nevada simply asserted that the costs do not justify the benefits, and EPA 

accepted that assertion. Given that Nevada did not explain how it weighed costs 

against benefits, DQGJLYHQ(3$¶VUHMHFWLRQRIWKHFRVWDQGYLVLELOLW\estimates 

XQGHUO\LQJ1HYDGD¶VFRVW-benefit analysis, EPA could not simply accept the State¶V

threadbare assertion without abdicating WKHDJHQF\¶V responsibility to critically 

review SIP submissions. See 42 U.S.C. § 7410(k); Mont. Sulphur & Chem. Co., 

666 F.3d at 1181; Mich. Dept. of Envtl. Quality, 230 F.3d at 183; Consolidated 

Brief of Respondent EPA at 42. 

I V. EPA'S A N A L Y T I C A L PR O C ESS D E F I ES 7+($*(1&<¶62:1

R E G U L A T I O NS A ND PAST PR A C T I C E, AS W E L L AS T H E B ASI C 

*2$/2)7+($&7¶65(G I O N A L H A Z E PR O G R A M. 

(3$¶VELDVIDYRULQJ61&5DQGDJDLQVW6&5subverts the Clean Air Act 

regional haze SURJUDP¶Vfundamental purpose to eliminate human-caused visibility 

impairment in Class I areas. Haze plans that compel installation only of controls 

ZLWK3ORZHU ́LQFUHPHQWDOFRVWVDQG3ODUJH ́LQFUHPHQWDOYLVLELOLW\EHQHILWV

(whatever those might be) threaten the goal of attaining natural conditions in the 

Class I areas. The level of visibility improvement that can be achieved through 

reduction of emissions from any one source might always be deemed too small to 
49

justify the cost of controls, in which case that last increment of haze pollution will 

forever be 3WRRVPDOO ́WRMXVWLI\DGGLWLRQDOFRQWUROPHDVXUHV

The Clean Air Act is designed to prevent this outcome by requiring 

consistent, reasonable progress toward elimination of manmade pollution and by 

imposing the requirement to retrofit some of the most polluting sources with the 

best system of controls. 42 U.S.C. § 7491(a)(1), (b)(2). The Act requires major 

VRXUFHVWKDW3FDXVHRUFRQWULEXWH ́WRYLVLELOLW\LPSDLUPHQWDW&ODVV,DUHDVWRLQVWDOO

WKH3EHVWDYDLODEOHUHWURILWWHFKQRORJ\ ́RU3%$57 ́ZKLFKLV3DQHPLVVLRQ

limitation based on the degree of reduction achievable through the application of 

the best system of continuous emission reduction for each pollutant which is 

HPLWWHGE\DQH[LVWLQJVWDWLRQDU\IDFLOLW\ ́ 40 C.F.R. § 51.301 (emphasis added). 

This definition reflects the appropriate framework for conducting a regional 

haze BART analysis. )LUVWWKHDJHQF\LGHQWLILHVWKH3EHVWV\VWHPRIFRQWLQXRXV

HPLVVLRQUHGXFWLRQ ́RUWKHEHVWWHFKQRORJ\IRUHDFKUHOHYDQWSROOXWDQWId. Once 

the best technology is selected, the agency then applies the following five-factor 

test to determine the best emission limitation achievable by that technology: 

The emission limitation must be established, on a case-by-case basis, 

taking into consideration the technology available, [1] the costs of 

compliance, [2] the energy and nonair quality (sic) environmental 

impacts of compliance, [3] any pollution control equipment in use or 

in existence at the source, [4] the remaining useful life of the source, 

and [5] the degree of improvement in visibility which may reasonably 

be anticipated to result from the use of such technology. 
50

40 C.F.R. § 51.301; 42 U.S.C. § 7491(g)(2). Only after determining that a 

technology is not viable in light of one of these five factors is a particular control 

option and associated BART limit eliminated in favor of the next best control 

option and limit. Id.; )HG5HJ-XO\3RQHRUPRUHRI

the available control options may be eliminated from consideration because they 

are demonstrated to be technically infeasible or to have unacceptable energy, cost, 

or non-air quality environmental impacts on a case-by-case (or site-specific) 

EDVLV ́

Here, EPA did not follow this so-called top-down analysis required under its 

own guidelines. Id. It first identified all of the possible controls and ranked them 

from least effective to most effective. EPA then deviated from its own procedure 

E\IDLOLQJWRSLFNIURPWKLVOLVWWKH3EHVWV\VWHPRIFRQWLQXRXVHPLVVLRQUHGXFWLRQ ́

as its starting point and subjecting its achievable emission limits to a five-factor 

test. It instead used the inferior SNCR technology as the starting point for its 

analysis and subjected better options to heightened scrutiny using the five-factor 

analysis. This flawed approach resulted in an improper bias in favor of the inferior 

SNCR technology and against the best technology2SCR.

:KHQFRPPHQWHUVREMHFWHGWRWKHDJHQF\¶VIDLOXUHWRREVHUYHLWVRZQ

JXLGHOLQHVLQWKLVFDVH(3$UHVSRQGHGWKDW3IRUSRZHUSODQWVWKDWDUHVPDOOHUWKDQ

750 [megawatts], our regulations allow the state to conduct a five-factor analysis 
51

WKDWGRHVQRWFRQIRUPLQDOOUHVSHFWVWRRXU%$57*XLGHOLQHVIRUODUJHUVRXUFHV ́

77 Fed Reg. 50, 938. However, this response ignores the fact that EPA chose to 

use the guidelines and premised its findings and analysis for Reid Gardner on 

application of the guidelines. 77 Fed. Reg. 50, 936, 50,942 (citing to its guidelines 

DVWKHFODLPHGEDVLVIRU(3$¶VDVVXPHGSHUIRUPDQFHIRU6&5). Id. at 50,942 n.12 

(explaining WKDW(3$UHOLHGRQLWVJXLGHOLQHVEHFDXVH3WKH%$57JXLGHOLQHVGR

provide useful guidance in VHWWLQJDSSURSULDWH%$57OLPLWV ́. Id.. at 50,940 

(offering an extensive discussion of its guidelines to justify the cost-benefit 

analysis underlying its regional haze determination for Reid Gardner). Moreover, 

EPA cited to NevadD¶VIDLOXUHWRFRPSO\ZLWKWKH guidelines as the basis for 

rejecting the 6WDWH¶Vplan. 77 Fed. Reg. at 21,3:HILQGFHUWDLQHOHPHQWVRIWKH

emission limits HVWDEOLVKHGIRU>5HLG*DUGQHU@LQ>1HYDGD¶VUHJLRQDOKD]HSODQ@DV

HLWKHUXQVXSSRUWHGE\WKHUHFRUGRULQFRQVLVWHQWZLWK%$57*XLGHOLQHV ́id

(rejecting 1HYDGD¶VHPLVVLRQOLPLWVIRU5HLG*DUGQHUEHFDXVHWKH6WDWH¶V3XVe of a 

rolling 12-month averaging period instead of a rolling 30-day average [was] 

LQFRQVLVWHQWZLWK%$57*XLGHOLQHV ́(3$¶VDUELWUDU\WUHDWPHQWRILWVRZQ

guidelines2cherry-picking certain elements of its guidelines while ignoring other 

elements2lacks transparency and falls short of the agency¶Vbasic obligation to 

HQJDJHLQD3UHDVRQHGHYDOXDWLRQRIWKHUHOHYDQWIDFWRUV ́Selkirk Conservation 

Alliance v. Forsgren, 336 F.3d 944, 954(9th Cir. 2003) (internal citations omitted). 
52

(3$¶VDQDO\WLFDODSSURDFKLQWKLVFDVHLVQRWRQO\LQFRKHUHQWEXWLVDOVR

LQFRQVLVWHQWZLWKWKHDJHQF\¶VDSSURDFKHOVHZKHUH(3$KDVfollowed the correct 

procedure in its regional haze determinations for other power plants. For example, 

IRUWKH6DQ-XDQ*HQHUDWLQJ6WDWLRQWKHDJHQF\LGHQWLILHG6&5DV3WKHPRVW

VWULQJHQWOHYHORIFRQWUROV ́LQLWVDQDO\VLV In justifying its analytical approach in 

that case to the Tenth Circuit, EPA cited to 70 Fed. Reg. at 39,164, n. 12, which 

VWDWHVWKDWWKHDJHQF\3PXVWLGHQWLI\WKHPRVWVWULQJHQWRSWLRQDQGDUHDVRQDEOH set 

RIRSWLRQVIRUDQDO\VLV ́(3$¶VFinal Answering Brief of Respondent EPA at 

77, WildEarth Guardians v. EPA, No. 11-9552 (10th Cir. brief filed Sept. 25, 

2012). EPA then went on to explain to the Tenth Circuit that after identifying the 

most stringent option, the agency then applies the remaining four steps of the 

BART analysis to that option before proceeding to the next best option. Id. As 

EPA itself correctly stated: 

[S]teps in the BART analysis may only be skipped if the most 

striQJHQWFRQWUROVIRUD%$57VRXUFHDUHDOUHDG\LQSODFHDQG3PDGH

IHGHUDOO\HQIRUFHDEOHIRUWKHSXUSRVHRILPSOHPHQWLQJ%$57 ́RU

ZKHQ3DVRXUFHFRPPLWVWRD%$57GHWHUPLQDWLRQWKDWFRQVLVWVRIWKH

PRVWVWULQJHQWFRQWUROVDYDLODEOH ́70 Fed. Reg. at 39,165. 

Id. at 64-65. 7KXVDIWHULGHQWLI\LQJWKH3EHVW ́WHFKQRORJ\IRU6DQ-XDQ*HQHUDWLQJ

Station, EPA conducted the five-factor regional haze analysis and, on that basis, 

determined that SCR could not be eliminated. Id. at 64-66. . When it was 

criticized for choosing SCR in its regional haze plan for the Four Corners Power 
53

Plant, EPA responded that it properly began its analysis with the most stringent 

controls. 77 Fed. Reg. at 51,624. As explained by the agency itself, 

EPA approached the five factor analysis using a top-down method. A 

top-down analysis entails ranking the control options in descending 

order starting with the most stringent option. The top control option is 

evaluated and if eliminated based on one of the five factors, the next 

most stringent option is considered, and so on. 

75 Fed. Reg. at 64,225. In its finaOUXOH(3$IXUWKHUH[SODLQHGWKDW3>L@IWKH

analysis shows no outstanding issues regarding cost or energy and non-air quality 

environmental impacts, the analysis is concluded and the top level of technically 

IHDVLEOHFRQWUROVLVLGHQWLILHGDVWKHμEHVWV\stem of continuous emission 

UHGXFWLRQ¶¶¶77 Fed. Reg. at 51,624 (emphasis added). When it rejected 

$UNDQVDV¶VUHJLRQDOKD]HSODQIRUIDLOLQJWRLGHQWLI\DQGDQDO\]HDUDQJHRIFRQWURO

options, including the PRVWVWULQJHQWFRQWURORSWLRQ(3$GHVFULEHGWKH3WRSGRZQ ́DQDO\VLVIRUUHJLRQDOKD]HDV3YHU\VLPLODUWRWKH>EHVWDYDLODEOHFRQWURO

technology] review as described in the New Source Review Workshop Manual 

'UDIW2FWREHU ́ZKLFKUHTXLUHVD3WRS-dRZQ ́DQDO\VLVRIDYDLODEOH

technologies. Id. at 14,612. 

In yet another rulemaking, EPA imposed a federal plan for Arizona after 

FULWLFL]LQJWKHVWDWH¶VUHJLRQDOKD]HSODQIRUFKRRVLQJDWHFKQRORJ\WKDW3SURYLdes 

WKHORZHVWYLVLELOLW\EHQHILWRIDQ\RIWKHFRQWUROVPRGHOHG ́77 Fed. Reg. at 

42,846. EPA very recently took the same approach, starting with the most 
54

stringent controls, in its proposed regional haze determination for Navajo 

Generating Station. 78 Fed. Reg. at 8,280.

Similar to the above examples, the Reid Gardner record indisputably 

supports the conclusion that WKHPRVWVWULQJHQWRU3EHVW ́V\VWHPRIFRQWLQXRXV

nitrogen oxides emission reduction for this power plant is SCR coupled with lownitrogen oxides burners and overfire air. See, e.g., 77 Fed. Reg. at 21,902, Table 4. 

And, a top-down analysis here would yield an estimated visibility benefit of 0.7 

deciviews at the Grand Canyon alone. NPS June 4, 2012 Comments at 16 

[JA ]. This visibility gain is more than that GHHPHGVLJQLILFDQWLQ$UL]RQD¶V

plan. 77 Fed. Reg. at 42,3%\FRQWUDVW6&5ZRXOGSURYLGHDQLPSURYHPHQWRI

more than 0.5 [deciviews] at a single Class I Area. ́ Had EPA maintained 

consistency with its previous actions, the agency would have used SCR as the 

VWDUWLQJSRLQWIRULWVUHJLRQDOKD]HDQDO\VLVLQWKLVFDVH$QDJHQF\¶VLQWHUSUHWDWLRQ

of a statute or regulation that conflicts with its prior interpretation is entitled to 

3FRQVLGHUDEO\OHVVGHIHUHQFH ́WKDQDFRQVLVWHQWO\KHOGDJHQF\YLHZWatt v.

Alaska, 451 U.S. 259, 273 (1981). 

While EPA seeks to justify its departure from its own top-down approach by 

claiming that states enjoy flexibility in crafting regional haze plans that are 

submitted to EPA for approval, 77 Fed. Reg. at 50, 937-38, this response falls flat 

IRUDWOHDVWWZRUHDVRQV)LUVW(3$GLVDSSURYHG1HYDGD¶VUHJLRQDOKD]HSODQIRU
55

failing to comply with the Clean Air Act¶VDSSOLFDEOHUHTXLUHPHQWV, which 

WULJJHUHG(3$¶VGXW\WRLVVXHWKHfederal plan at issue in this case. 77 Fed. Reg. at 

GLVDSSURYLQJ1HYDGD¶VUHJLRQDOKD]HSODQEHFDXVHLWZDV3XQVXSSRUWHGE\

WKHUHFRUGRULQFRQVLVWHQWZLWK%$57*XLGHOLQHV ́. Second, even if it were 

appropriate for EPA to rely on the analysis contained in a rejected state plan2

which it is not2DVWDWH¶VLQWHUSUHWDWLRQRIIHGHUDOODZLVQRWHQWLWOHGWRGHIHUHQFH

Safe Air for Everyone v. EPA, )GWK&LU3>D@VWDWH¶V

interpretation of [EPA-approved regulations], even if binding as a matter of state 

ODZLVQRWGLUHFWO\GLVSRVLWLYHRIWKHPHDQLQJRI>WKRVHIHGHUDOUHJXODWLRQV@ ́

EPA thus failed to provide any rational reason for deviating from its standard topdown analytical approach in this case. 

&21&/86,21

For the foregoing reasons, the Environmental Coalition respectfully requests 

the Court to ILQGWKDW(3$¶VILQDOGHFLVLRQLVDUELWUDU\capricious, and not in 

accordance with law. The Environmental Coalition further requests the Court to 

UHPDQG(3$¶VUHJLRQDOKD]HGHWHUPLQDWLRQIRU5HLG*DUGQHUIRUUHFRQVLGHUDWLRQ

Respectfully submitted this 28th day of February, 2013. 

 
56

s/ Suma Peesapati 

Suma Peesapati (CA# 203701) 

EARTHJUSTICE 

50 California Street, Suite 500 

San Francisco, CA 94111 

(415) 217-2000 Phone 

(415) 217-2040 Fax 

speesapati@earthjustice.org 

Matthew Gerhart (WA# 42787) 

EARTHJUSTICE 

705 2nd Ave., Suite 203 

Seattle, WA 98104 

(206) 343-7340 Phone 

(206) 343-1526 Fax 

mgerhart@earthjustice.org

Dan Galpern (OR# 06195) 

Law Firm of Charles M. Tebbutt P.C. 

941 Lawrence Street 

Eugene, OR 97401

(541) 344-3505 Phone 

(541) 344-3516 Fax 

galpern@tebbuttlaw@gmail.com 

Counsel for Environmental Coalition Moapa 

Band of Paiute Indians, National Parks

Conservation Association and Sierra Club 
57

&(57,),&$7(2)&203/,$1&(

Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I 

certify that the attached opening brief is proportionately spaced, has a typeface of 

14 points or more, and contains 12,928 words. 

Dated: February 28, 2013 s/ Suma Peesapati 

 SUMA PEESAPATI 

 
58

67$7(0(172)5(/$7('&$6(6

Petitioners are aware of one other case that arises out of the same final 

agency action at issue in this case: Nevada Power Company v. EPA, No. 12-73411 

(9th Cir. filed Oct. 22, 2012). Additionally, the following case raises legal issues 

that are similar to the legal issues in this case: National Parks Conservation 

Association v. EPA, No. 12-73710 (9th Cir. filed Nov. 14, 2012). 
C E R T I F I C A T E O F SE R V I C E 

I hereby certify that on February 28, 2013, I electronically filed the 

foregoing with the Clerk of the Court for the United States Court of Appeals for 

the Ninth Circuit by using the appellate CM/ECF system. Participants in the case 

who are registered CM/ECF users will be served by the appellate CM/ECF system. 

I further certify that some of the participants in the case are not registered 

CM/ECF users. I have mailed the foregoing document by First-Class Mail, 

postage prepaid, to the following non-CM/ECF participant: 

Scott C. Fulton, General Counsel 

Correspondence Control Unit 

Office of the General Counsel 

United States Environmental Protection Agency 

1200 Pennsylvania Avenue N.W 

Mail Code 2310A 

Washington, D.C. 20460 

Dated: February 28, 2013 s/ Suma Peesapati 

 SUMA PEESAPATI