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VIA ELECTRONIC MAIL AND U.S. MAIL

May 19, 2014

Ms. Jessica Daniels

Monitoring and Assessment Branch

Air Quality Division

District Department of Environment

1200 First Street NE, 5th Floor 

Washington, DC 20002

jessica.daniels@dc.gov

Re: “Infrastructure” 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 2010 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, Maintenance and Enforcement 

Requirements of the Clean Air Act Sections 110(a)(2)(A) through (M) for the 2010 

Sulfur Dioxide NAAQS (“Draft I-SIP”). As proposed, the District of Columbia’s Draft 

I-SIP does not satisfy several essential requirements of Section 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. 

According to District Department of Environment’s (“DDOE”) Public Notice of 

State Implementation Plan regarding the proposed amendment to the District of 
2

Columbia I-SIP, written comments will be considered if received 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 determines to be necessary to protect public health with an adequate 

margin of safety. See 42 U.S.C. § 7409(b)(1). On June 2, 2010, EPA revised the primary 

SO2 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 SO2 NAAQS Rule”]. The primary SO2 NAAQS was set at such a 

level in order to protect public health from the serious threats posed by short-term 

exposure to SO2, 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 SO2

NAAQS Rule at 35,525-26. The health data relied upon by EPA in promulgating the 

new SO2 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 of 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 maintenance 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 (which 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 the 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 emission 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 region 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 Infrastructure 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. Browner, 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 History 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 NAAQS. 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 pollutants 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 ISIPs 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 

Senate 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 

schedules 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 attainment 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 regulations 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 Implementation 

 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 

limitations, 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 

streamlines 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 

demonstration 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 Prohibit 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 SO2 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 include 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 that 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 question 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 demonstration, 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 

sulfur dioxide SIP for the ArcelorMittal Burns Harbor facility to remove the SO2

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 Burns 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 not 
6

result in or allow an increase in actual SO2 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 

SO2 NAAQS,” 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, 

nowhere 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) 

[hereinafter “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 requirement [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 

stations, 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 then-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 well-recognized by the Courts.” Id. Other courts have provided 

 3 Sierra Club disagrees, however, with EPA’s apparent postponement 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 section 

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, the 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 discretion 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 also been clear that section 110(a)(2)(A) from the post1990 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’ attainment 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, 230 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 pollution 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 pollution, 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 nonrelaxation of rules approved 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 if 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 consideration 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 measured “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 SO2 EMISSION LIMITATIONS TO ENSURE 

ATTAINMENT AND MAINTENANCE OF THE PRIMARY SO2

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-SIP demonstrates that the 

District of Columbia has met all the requirements of the 2010 SO2 NAAQS. See Draft ISIP at 1. Yet, the District of Columbia fails to demonstrate how it plans to address 

potential excessive SO2 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 SO2 

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 SO2. 

DDOE recognizes that Capitol Power Plant emits large amount of SO2, especially when 

compared to other sources 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 prevent exceedances of the SO2

NAAQS. See Draft I-SIP at 4. 

While DDOE states the use of coal has declined and there has been a 

corresponding drop in SO2 emissions, see Attachment B at 2, DDOE does not provide 

assurances that the current lower level of SO2 emissions will continue or demonstrate that 

the current level is low enough to ensure that the NAAQS are attained or maintained. 

DDOE must include in its I-SIP emission limitations and other control measures 

sufficient to ensure that the 2010 the SO2 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 commercial operation date of the 

two new combustion turbines. See DDOE Capitol Power Plant Permits to Construct Two 

 6

 Sierra Club notes that DDOE has included similar provisions 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 “Construction Permit”]. Additionally, 

the I-SIP should incorporate the SO2 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 Capitol Power Plant § II(a) (June 3, 2013). The 

coaling burning restriction and SO2 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 regulations cited 

in the Draft I-SIP to help the District of Columbia attain and maintain the 2010 SO2 

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 sufficient 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 SO2 as it can as long as it 

is mixed with other gases. Under this regulation, sources are able to violate the 2010 SO2

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 

SO2 NAAQS. DDOE recognizes that the Capitol Power Plant is the largest source of SO2

emissions, yet it fails to incorporate the coal restriction and SO2 emission limits for the 

plant into its SIP. To ensure the SO2 NAAQS are attained and maintained, DDOE must 

incorporate limits from the Capitol Power Plant’s permits into the I-SIP.

III. THE DISTRICT OF COLUMBIA MUST ADDRESS ALL 

REQUIREMENTS OF 110(A)(2)(A) AT THIS TIME.

The District of Columbia wrongly relies on EPA guidance, see 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 limits 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 

ignore some of the requirements of section 110(a)(2)(A) is incorrect and goes against the 

plain meaning of the statute. 

As mentioned above, the 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 

Draft I-SIP and address all the requirements 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 

these 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