50 F Street, NW, Suite 800, Washington, DC 20001 TEL: (202) 675

- 2380 FAX: (202) 547

- 6009 www.sierraclub.org V IA E LECTRONIC M AIL AND U.S. M AIL

May 1 9 , 2014

Ms. Jessica Daniels Monitoring and Assessment Branch Air Quality Division District Department of Environment 1200 First Street NE, 5 th Floor Washington, DC 20002 jessica.daniels@dc.gov

Re: “Infra structure” State Implementation Plan to Meet the Implementation, Maintenance and Enforcement Requirements of the Clean Air Act Sections 110(a)(2)(A) through (M) for the 20 10 Sulfur Dioxide NAAQS

Dear Ms. Daniels:

On behalf of the Sierra Club, its over 2,400 members in the District of Columbia, and others who are adversely impacted by the District of Columbia’s sources of sulfur dioxide pollution, we submit the following comments on “Infrastructure” State Implementation Plan to Meet the Implementation, M aintenance and Enforcement Requirements of the Clean Air Act Sections 110(a)(2)(A) through (M) for the 20 10 Sulfur Dioxide NAAQS ( “Draft I

- SIP”). As pro posed, the District of Columbia’s Draft I

- SIP does not satisfy several essenti al requirements of Secti on 110(a)(1) and (2) of the Clean Air Act (“the Act” or “CAA”) , including requirements to address large sources of sulfur dioxide, such as the Capitol Power Plant . The following comments explain these deficiencies in greater detail.

A ccording to District Department of Environment ’s (“DDOE”) Public Notice of State Implementation Plan regarding the proposed amendment to the District of2 Columbia I

- SIP, written comments will be considered if receiv ed by 4:00 P.M. on May 19, 2014 via mail or e

- mail, making this submission timely.

I. BACKGROUND

A. National Ambient Air Quality Standards

The primary National Ambient Air Quality Standards (“ NAAQS ”) define the levels of air quality that the U.S. Environmental Protection Agency (“EPA”) Administrator d etermines to be necessary to protect public health with an adequate margin of safety. See 42 U.S.C. § 7409( b)(1). O n June 2, 2010, EPA revised the primary SO 2 NAAQS by establishing a new one

- hour standard at a level of 75 ppb which is met when the 3

- year average of the annual 99th percentile of the daily maximum one

- hour average concentrations is less than or equal to 75 ppb. See Primary National Ambient Air Quality Standard for Sulfur Dioxide Final Rule, 75 Fed. Reg. 35,520, (June 20, 2010) [hereinafter “Final SO 2 NAAQS Rule”]. The primary SO 2 NAAQS was set at such a level in order to protect public health from the serious threats posed by short

- term exposure to SO 2 , including decreased lung function, increased respiratory distress such as chest tightness, wheezing, and shortness of breath, and other serious indicators of respiratory illness, especially in asthmatics, children, and the elderly. See Final SO 2 NAAQS Rule at 35,525

- 26. The health data relied upon by EPA in promulgating the

new SO 2 standard overwhelmingly indicates that increased asthma attacks and hospital visits are attributable to short

- term concentrations of sulfur compounds in the air. Id

. Due to these and other serious impairments caused by sulfur dioxide exposure, the DDOE must properly implement the sulfur dioxide NAAQS through this I

- SIP process in order to protect public health as required by law.

B. Implementation of the NAAQS

The Clean Air Act creates a framework for the “development o f cooperative Federal, State, regional, and local programs to prevent and control air pollution.” 42 U.S.C. § 7401(a)(4). Pursuant to section 109(b)(1) of the Act, EPA has established primary NAAQS for six criteria air pollutants, “the attainment and mai ntenance of which . . . are requisite to protect the public health.” Id. § 7409(b)(1). States have “primary responsibility” for assuring air quality within the state. Id . § 7407(a). Following promulgation of a NAAQS, the Act requires that a state shall “adopt and submit to the Administrator . . . a plan which provides for implementation, maintenance, and enforcement of such primary [NAAQS].” Id. § 7410(a)(1). For attainment and unclassifiable areas, section 110(a)(2)(A) requires that these plans (whic h EPA refers to as Infrastructure SIPs or I

- SIPs) “include enforceable emission limitations . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements” of the Clean Air Act, including th e requirement to maintain the NAAQS. 42 U.S.C. §§ 7410(a)(2)(A), 7410(a)(1); Conn. Fund for Env’t, Inc. v. EPA

, 696 F.2d 169, 172 (2d Cir. 1982) (CAA requires that SIPs contain “measures necessary to ensure the attainment and maintenance of NAAQS”); Mont. Sulphur & Chem. Co. v.3 EPA , 666 F.3d 1174, 1180 (9th Cir. 2012) ( “ The Clean Air Act directs states to develop implementation plans

— SIPs

— that ‘assure’ attainment and maintenance of national ambient air quality standards (“NAAQS”) through enforceable emissi on limitations.”) (citing 42 U.S.C. §§ 7407(a), 7410(a)(2)(A)); Hall v. EPA , 273 F.3d 1146, 1153 (9th Cir. 2001) (“Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control r egion in the State”) (internal citations omitted); see also EPA, “Sulfur Dioxide Implementation

— Programs and Requirements for Reducing Sulfur Dioxide,” available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
EPA may approve an Infrastruct ure SIP only if it meets the requirements of 110(a)(2) of the Act. See 42 U.S.C. § 7410(a)(2)(A)

- (M). The state bears the burden of demonstrating that its SIP submission satisfies the standards of section 110(a)(2). Mich. Dept. of Envtl. Quality v. Brow ner , 230 F.3d 181, 183, 185 (6th Cir. 2000) (affirming EPA’s rejection of a SIP proposal where the state “failed to offer evidence that [the] proposed rules will not interfere with the attainment and maintenance of the NAAQS.”). For a plan to be adequate, it “must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.” 40 C.F.R. § 51.112(a).

1. The Plain Language and Legislative Histo ry of the Clean Air Act Require That Infrastructure SIPs Must Impose Emission Limits Adequate to Prevent NAAQS Exceedances in Areas Not Designated Nonattainment.

The Clean Air Act, on its face, requires I

- SIPs to be adequate to prevent exceedances of the N AAQS. Following promulgation of a NAAQS, a state must “adopt and submit to the Administrator . . . a plan which provides for implementation, maintenance, and enforcement of such [NAAQS].” 42 U.S.C. § 7410(a)(1). Pursuant to section 110(a)(2)(A), this I

- SIP must “include enforceable emission limitations . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements” of the Clean Air Act (which include the requirement to maintain compliance with the NAAQS). Id. § 7410(a)(2)(A) (emphasis added). As defined by the Act, the term “emission limitation” means “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutan ts on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter.” Id. § 7602( k). Thus, the plain language of section 110(a)(2)(A) requires that I

SIPs include enforceable emission limits on sources sufficient to ensure maintenance of the NAAQS.
The legislative history of the Clean Air Act supports this interpretation. As the Se nate Committee Report accompanying the 1970 Clean Air Act explained, the Act “would establish certain tools as potential parts of an implementation plan and would require that emission requirements be established by each State for sources of air pollution agents or combinations of such agents in such region and that these emission requirements be monitored and enforceable.” Sen. Cmte. on Pub. Works Rpt. at 12 (Sept.4 17, 1970) (emphasis added), attached hereto as Ex. 1. This was reaffirmed in the subsequent Senate Conference Report, which stated that: “In order to implement the national ambient air quality standards, these [state implementation] plans must provide for emission limitations on all services in the region covered by the plan , together with sched ules and timetables of compliance, systems for monitoring both ambient air and emissions from individual sources, and adequate enforcement authority.” Sen. Conf. Rpt., 116 Cong. Rec. 42,381, 42,384 (Dec. 18, 1970) (emphasis added), attached hereto

as Ex. 2. 1

2. EPA Regulations Implementing the Clean Air Act Require That Infrastructure SIPs Must Impose Emission Limits Adequate to Prohibit NAAQS Exceedances in Areas Not Designated Nonattainment.
EPA regulations implementing section 110(a)(2) also require that I

- SIPs be adequate to prohibit exceedances of the NAAQS. Pursuant to these regulations, in order for a SIP to be approved by EPA, it “must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainme nt and maintenance of the national standard that it implements.” 40 C.F.R. § 51.112(a). 2 The regulation clearly states that all SIPs must contain emission limits that adequately ensure the NAAQS is achieved. See 40 C.F.R. § 51.112(a). Although these re gulations were developed before the Clean Air Act separated Infrastructure SIPs from nonattainment SIPs

— a process that began with the 1977 amendments and was completed by the 1990 amendments

— the regulations nonetheless apply to I

- SIPs. EPA has not changed the regulation since 1990, and in the preamble to the final rule promulgating 40 C.F.R. § 51.112, EPA expressly identifies that its new regulations were not implementing Subpart D, the new nonattainment provisions of the Act. See Air Quality Implementati on

1 Although the language of current section 110(a)(2)(A) was originally found in section 110( a)(2)(B), the substance has remained true to the statements found in the Senate Committee Reports. There were only two substantive changes between 1970 and the present. First, the addition of former section 172(c)’s requirement that SIPs’ emission limita tions, schedules, and timetables be “enforceable.” See Rpt. of the Senate Cmte. on Envt. and Pub. Works accompanying the Clean Air Act Amendments of 1989 at 20 (Dec. 20, 1989) (explaining that “Paragraph (1) of rewritten section 110(c) combines and streaml ines existing section 110(a)(2)(b) and the enforceability requirements of section 172(c) of current law”), attached hereto as Ex

. 3; see also 42 U.S.C. § 7502(c) (section 172(c)) (requiring that a SIP revision submitted before July 1, 1982 pursuant to a de monstration under subsection (a)(2) “shall contain enforceable measures to assure attainment of the applicable standard not later than December 1, 1987”). Second, the clarification in the 1990 Clean Air Act Amendments that the “means[] or techniques” for meeting the requirements of the Act included “economic incentives such as fees, marketable permits, and auctions of emissions rights.” 42 U.S.C § 7410(a)(2)(A).
2 40 C.F.R. § 51.112(a)(1) further specifies that “[t]he adequacy of a control strategy shall be demonstrated by means of applicable air quality models , data bases, and other requirements specified in appendix W of this part (Guideline on Air Quality Models).” (emphasis added).5 Plans; Restructuring SIP Preparation Regulations, 51 Fed. Reg. 40,656, 40,656 (Nov. 7, 1986) (“It is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . . .”). Consequently, 40 C.F.R. § 51.112 was intended to apply to I

- SIPs. Thus, it is clear that I

- SIPs must contain “measures, rules, and regulations” sufficient to ensure maintenance of the NAAQS.

3. Prior EPA Interpretations of the Act Require That Infrastructure SIPs Must Impose Emission Limits Adequate to Prohibi t NAAQS Exceedances in Areas Not Designated Nonattainment.
EPA has relied on section 110(a)(2)(A) and 40 C.F.R. § 51.112 on multiple occasions to reject Infrastructure SIPs that did not contain specific emissions limits sufficient to demonstrate attainment and maintenance of the NAAQS. For example, in March 2006, EPA disapproved Missouri’s attempt to revise the SO 2 emission limits in its I

- SIP for two power plants because the new emission limits would not ensure maintenance of the short

- term sulfur dioxide NAAQS. See Approval and Promulgation of Implementation Plans; State of Missouri, 71 Fed. Reg. 12,623, 12,624 (Mar. 13, 2006). In so doing, EPA explained that “Section 110(a)(2)(A) of the [Act] requires, in part, that the [state implementation] plan incl ude emission limitations to meet the requirements of the Act, including the requirement in section 110(a)(1) that the plan must be adequate to attain and maintain ambient air quality standards.” Id . EPA further explained that “40 C.F.R. 51.112 requires t hat the plan demonstrate that rules contained in the SIP are adequate to attain the ambient air quality standards.” Id. In the case of Missouri’s proposed I

- SIP, EPA expressed concern that the sulfur dioxide emission rates for two power plants in questio n were “not protective of the short

- term sulfur dioxide NAAQS” because, while Missouri had lowered the emission rates for the facilities, it had dramatically increased the averaging times (from a 3

- hour average to an annual average) without providing “a de monstration, as required by the [Clean Air Act] and EPA regulations, that the [sulfur dioxide national ambient air quality] standards, and particularly the three

- hour and the twenty

- four hour standards, can be protected by an annual emission limit.” Id.
More recently, in December 2013, EPA rejected a revision to Indiana’s sulfur dioxide I

- SIP pursuant to 40 C.F.R. § 51.112, because Indiana failed to demonstrate that the I

- SIP, as revised, was sufficient to ensure maintenance of the sulfur dioxide NAAQS. See Approval of Air Quality Implementation Plans; Indiana; Disapproval of State Implementation Plan Revision for ArcelorMittal Burns Harbor; Final Rule, 78 Fed. Reg. 78,720, 78,721 (Dec. 27, 2013). Indiana had submitted a request to EPA to revise its sul fur dioxide SIP for the ArcelorMittal Burns Harbor facility to remove the SO 2 emission limit for the blast furnace flare at the facility. Id. In the proposed disapproval, EPA explained that “[u]nder 40 C.F.R. 51.112(a), each SIP must demonstrate that the measures, rules, and regulations it contains are adequate to provide for the timely attainment and maintenance of the NAAQS.” See Approval of Air Quality Implementation Plans; Indiana; Disapproval of State Implementation Plan Revision for ArcelorMittal B urns Harbor; Proposed Rule, 78 Fed. Reg. 17,157, 17,158 (Mar. 20, 2013). Because Indiana did not demonstrate that the ArcelorMittal blast furnace gas flare’s existing emission limit was “redundant, unnecessary, or that its removal would not6 result in or a llow an increase in actual SO 2 emissions,” and, consequently, that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration, thus undermining the SIP’s ability to ensure protection of the SO 2 N AAQS,” EPA rejected the proposed amendment. Id. at 17,159; see also 78 Fed. Reg. at 78,721.
In addition, while in its recent Infrastructure SIP guidance EPA purported to postpone certain I

- SIP start

- up, shutdown, and malfunction (“SSM”) requirements,

now here in that guidance does EPA discuss postponement of any other I

- SIP requirement. 3 See U.S. EPA, Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Section 110(a)(1) and 110(a)(2), at 19

- 20 (Sept. 13, 2013) [hereinaf ter “EPA I

- SIP Guidance”]. This is simply a further indication that the CAA requires I

- SIPs to include emission limits adequate to ensure attainment of the NAAQS and that the imposition of such limits may not be delayed.

4. Supreme and Appellate Court Opinions Hold That Infrastructure SIPs Must Impose Emission Limits Adequate to Prohibit NAAQS Exceedances in Areas Not Designated Nonattainment.
Since the inception of the modern Clean Air Act in 1970, courts have interpreted the language presently found in section 110(a)(2)(A) to require that SIPs contain enforceable emission limits sufficient to prevent exceedances of the NAAQS. In Train v. NRDC , a seminal case on SIP approval requirements, the Supreme Court explained that:
In complying with this requi rement [that a SIP provide for attainment and maintenance of the NAAQS] a State’s plan must include ‘emission limitations,’ which are regulations of the composition of substances emitted into the ambient air from such sources as power plants, service stati ons, and the like. They are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards.
421 U.S. 60, 78 (1975); see also id. at 67 (citing language from the n

- current section 110(a)(2)(B) now found in section 110(a)(2)(A)).
Courts of appeals have echoed the same conclusion. For example, in Pennsylvania Department of Environmental Resources v. EPA , the Third Circuit stated that the Clean Air Act “directs the EPA to withhold approval from a state implementation plan if the ‘maintenance of [the] standard’ cannot be assured.” 932 F.2d 269, 272 (3rd Cir. 1991). 4 The court observed that the “need to maintain the Clean Air Act standards once they are reached is w ell

- recognized by the Courts.” Id. Other courts have provided

3 Sierra Club disagrees, however, with EPA’s apparent postpo nement of those same SSM requirements; such postponement is unsupported by the CAA.
4 The court was interpreting the 1977 version of the statute in which Subpart 1 of Part D had been added, id. at 271 n.1, but relied on the language of then

- current sect ion 110(a)(2)(B) (now found in section 110(a)(2)(A)). Pennsylvania Department of Environmental Resources, 32 F.2d at 272.7 similar analyses. In Mision Industrial, Inc. v. EPA , for example, the First Circuit explained that, “[b]efore approving an air quality implementation plan or revision, the Administrator must determine that it ‘includes emission limitations . . . and such other measures as may be necessary to insure attainment and maintenance of (the) primary or secondary standard . . . .’” 547 F.2d 123, 129 (1st Cir. 1976) (quoting former section 110(a)(2)(B))

. The 1990 Clean Air Act amendments do not alter this picture. Court decisions since the 1990 amendments have continued to hold that I

- SIPs must have emission limits that maintain the NAAQS. In Alaska Department of Environmental Conservation v. EPA , t he Supreme Court explained that an Infrastructure SIP under CAA section 110(a)(1) must be a “plan which provides for implementation, maintenance, and enforcement of [NAAQS].” 540 U.S. 461, 470 (2004) (quoting section 110(a)(1)). “While States have wide d iscretion in formulating their plans

. . . SIPs must include certain measures Congress specified to assure that national ambient air quality standards are achieved.” Id. (internal citations and quotations omitted). Thus, in order for EPA to approve a SIP , it “must ‘include enforceable emission limitations and other control measures, means, or techniques . . . as may be necessary or appropriate to meet the applicable [CAA] requirements.’” Id. (quoting 42 U.S.C. § 7410(a)(2)(A)).

The circuit courts have a lso been clear that section 110(a)(2)(A) from the post

1990 Clean Air Act requires enforceable emission limits in I

- SIPs. For example, the Ninth Circuit affirmed that “[t]he Clean Air Act directs states to develop implementation plans

— SIPs

— that ‘assure’ a ttainment and maintenance of national ambient air quality standards (‘NAAQS’) through enforceable emission limitations .” Mont. Sulphur & Chem. Co. , 666 F.3d at 1180 (citing 42 U.S.C. §§ 7407(a), 7410(a)(2)(A)) (emphasis added). And the Sixth Circuit has explained that “EPA’s deference to a state is conditioned on the state’s submission of a plan ‘which satisfies the standards of § 110(a)(2)’ and which includes emission limitations that result in compliance with the NAAQS.” Mich. Dept. of Envtl Quality , 2 30 F.3d at 185 ( quoting Train , 421 U.S. at 79).
Additionally, in Hall v. EPA , the Ninth Circuit held that EPA had not fulfilled its responsibility under another provision

— section 110(l) 5

— to evaluate whether a revised air quality plan will achieve the pol lution reductions required under the Act. 273 F.3d at 1152. In Hall

, EPA incorrectly approved a revision to an air quality plan solely on the basis that the revisions did not relax the existing SIP, rather than “measur[ing] the existing level of pollutio n, compar[ing] it with the national standards, and determin[ing] the effect on this comparison of specified emission modifications.” Id . at 1157

- 58 ( quoting Train , 421 U.S. at 93). EPA claimed a statutory equivalence between non

relaxation of rules appro ved in 1981 and non

- interference with current attainment requirements. Id. at 1155. The court rejected EPA’s application of the “no relaxation” rule, finding it inconsistent with the Act because it set an improper baseline that failed to

5 Section 110(l) provides, in relevant part, that “[t]he Administrator shall not approve a revision of a [state implementation] plan i f the revision would interfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable requirement of this chapter.” 42 U.S.C. § 7410(l).8 take into consid eration the 1990 amendments, which set new deadlines for attainment and established other new requirements for incremental progress towards attainment. Id . at 1160

- 61. Those current attainment requirements were the baseline from which EPA should have mea sured “non

- interference.” Id. EPA’s analysis was required to reflect consideration of the prospects of meeting current attainment requirements under a revised air quality plan. Id . Just as a plan revision must not interfere with attainment of the NAAQS under section 110(l), an I

- SIP must likewise include enforceable limits sufficient to ensure the initial plan provides for maintenance of the NAAQS under 110(a)(2)(A).

II. THE DRAFT I

- SIP FAILS TO INCLUDE ENFORCEABLE MEAURES AND SO 2 EMISSION LIMITATIONS TO ENSURE ATTAIN MENT AND MAINTENANCE OF THE PRIMARY SO 2 NAAQS.
As discussed above, a State Implementation Plan must include enforceable emission limits and other measures on sources sufficient to ensure attainment and maintenance of the NAAQS. DDOE claims that Draft I

- SI P demonstrates that the District of Columbia has met all the requirements of the 20 10 SO 2 NAAQS. See Draft I

SIP at 1. Yet, the District of Columbia fails to demonstrate how it plans to address potential excessive SO 2 emissions from the largest source, the U.S. Capitol Power Plant (“Capitol Power Plant”)

. See generally Draft I

- SIP.

In order to help ensure the attainment and maintenance of the primary SO 2 NAAQS, DDOE should incorporate the limits on the Capitol Power Plant , including provisions from Capitol Power Plant’s construction and operating permits that limit the coal fired units to operation only during emergencies and place emission limits on SO 2
. DDOE recognizes that Capitol Power Plant emits large amount of SO 2 , especially when compared to other sour ces in the District of Columbia. See Draft I

- SIP, Attachment B at 2. However, the Draft I

- SIP fails to include limits on the plant including restricting the use of coal and general emission limits that would help preve nt exceedances of the SO 2 NAAQS

. See Draft I

- SIP at 4.

While DDOE states the use of coal has declined and there has been a corresponding drop in SO 2 emissions, s ee Attachment B at 2, DDOE does not provide assurances that the current lower level of SO 2 emissions will continue or demonstra te that th e current level is low enough to ensure that the NAAQS are attained or maint ain ed

. DDOE must include in its I

- SIP emission limitations and other control measures sufficient to ensure that the 2010 the SO 2 NAAQS is attained and maintained. Accordingly , DDOE should include limits from the Capitol Power Plant’s permits in the I

- SIP. 6 In particular, the I

- SIP must incorporate the restriction that Capitol Power Plant’s Boilers 1 and 2 shall no longer combust coal after the comm ercial operation date of the two new combustion turbines. See DDOE Capitol Power Plant Permit s to Construct Two

6 Sierra Club notes that DDOE has included similar provi sions addressing specific exceedances from a large source; DDOE already references closure of two electric generating units as helping satisfy section 110(a)(2)(A). See Draft I

- SIP, Attachement A at 1

.9 Combustion Turbines and Associated Two Heat Recovery Steam Generating Units with Duct Burners, §III(e) (June 6, 2013), [hereinafter “Constructi on Permit”]. A ddition ally

, the I

- SIP should incorporate the SO 2 emission limits listed in the the Capitol Power Plant ’ s permits

. See Construction Permit at § II(d); DDOE Permit (No. 6576) to Operate 203 MMBTU per Hour Boiler #3 at C apitol Power Plant § II(a) (June 3, 2013). The coaling burning restriction and SO 2 emission limits will help ensure that the I

- SIP is sufficient to attain and maintain the NAAQS.

These limits are especially important when considered with other regulation s cited in the Draft I

- SIP to help the District of Columbia attain and maintain the 2010 SO 2 NAAQS. For example, DDOE cites the Sulfur Process Emissions. See Draft I

- SIP, Attachment A at 1. This limit fails to have an adequate averaging period sufficien t to protect the NAAQS. It only places a limit of 0.05 % concentration per volume on a source. 20 DCMR § 803 (1) . Thus, a source can emit as much SO 2 as it can as long as it is mixed with other gases. Under this regulation, sources are able to violate t he 2010 SO 2 NAAQS while being in compliance with the 20 DCMR § 803.

The Draft I

- SIP is not sufficient to ensure the attainment and maintenance of the SO 2 NAAQS. DDOE recognizes that the Capitol Power Plant is the largest source of SO 2 emissions, yet it fails to incorporate the coal restriction and SO 2 emission limits for the plant into its SIP. To ensure the SO 2 NAAQS are attained and maintained, DDOE must incorporate limits from the Capitol Power Plant ’ s permit s into the I

- SIP.

III. THE DISTRICT OF COLUMB IA MUST ADDRESS ALL REQUIREMENTS OF 110( A)(2)(A) AT THIS TIME

.
The District of Columbia wrongly relies on EPA guidance, s ee generally EPA’s 2013 I

- SIP Guidance

, claiming that states can ignore key provisions of the section 110(a)(2), including addressing pre

- existing deficient SIP provisions under section 110(a)(2)(A), such as exemptions from l imits during startup, shutdown, and malfunction events and director’s variances

, and visibility protection required under section 110(a)(2)(J). See Draft I

- SIP at 4, 25. This belief that the District of Columbia can igno re some of the requirements of s ec tion 110(a)(2)(A) is incorrect and goes against the plain meaning of the statute.

As mentioned above, t he Clean Air Act sets a mandatory duty for states to submit I

- SIPs within three years of promulgation of a NAAQS. 42 U.S.C. § 7410(a)(1). Under CAA section 110, there is no prerequisite action required before states must fulfill their mandatory duty. See EPA v. EME Homer City Generation , No. 12

- 1182, slip op. at 14 (U.S. Apr. 29, 2014) (“the CAA sets a series of precise deadlines to which the States and EPA must adhere.”). DDOE cannot rely on the argument that EPA’s 2013 I

- SIP Guidance does not address these provisions. See Draft I

- SIP at 4, 25. This guidance directly contradicts the language of the Clean Air Act. Therefore, DDOE must revise its Dr aft I

- SIP and address all the re quirements of the I

- SIP, including pre

- existing deficient SIP provisions and visibility protections under 110(a)(2)(J).10 IIII. CONCLUSION

The Draft I

- SIP fails to meet the requirements of section 110(a)(1) and (2)

. The District of Columbia must adopt new provisions into the I

- SIP to protect public health and comply with the Act’s requirements. The Sierra Club would be happy to provide any other information that might assist the District of Columbia in evaluating the impacts of
t hese sources and developing an I

- SIP in full compliance with the Clean Air Act.

Respectfully submitted,

/s/Elizabeth Toba Pearlman

x Elizabeth Toba Pearlman Office of Elizabeth Toba Pearlman 1523 27th Street, NW Washington, DC 20007 (202) 643

- 4068 etplaw@gmail.com

Zachary M. Fabish Staff Attorney 50 F Street, NW

- 8th Floor Washington, DC 20001 (202 ) 675

- 7917 zachary.fabish@sierraclub.org