From: Harris-Bishop, Rusty

To: Lee, Anita

Subject: Fw: Media request about EPA, Arizona, and coal

Date: Friday, May 31, 2013 10:03:58 AM

Attachments: 2013-05-17 - Response to Stay Motions as filed.pdf

Rusty Harris-Bishop 

Press Officer/Project Manager 

415.972.3140 (o) 

415.694.8840 (c) 

Harris-Bishop.Rusty@epa.gov 

Sent by Blackberry 

Apologies for thumb-typing errors 

From: Harris-Bishop, Rusty

Sent: Thursday, May 30, 2013 4:33:54 PM

To: Tom Marcinko

Cc: Yogi, David

Subject: RE: Media request about EPA, Arizona, and coal

Hi Tom: here is our response to your questions, as well as an attachment that is our response to

the Arizona filing. Our staff person is available tomorrow if you have additional questions. Give me

a call or let me know by email if you’d like me to set up a call.

1.How will the EPA respond to the court filing by Attorney General Horne re: the Apache,

Cholla and Coronado coal plants?

We recently filed the attached brief responding to motions by the Attorney General and

the owners and operators of the Apache, Cholla and Coronado coal plants to stay our

Regional Haze Federal Implementation Plan (FIP) for these plants.

2. Mr. Horne says the administration's real purpose is to do away with coal. Is that correct?

No. EPA is implementing a visibility protection program that was required by Congress

in the 1990 Clean Air Act Amendments, so this program is over 20 years old. Congress

set a goal of preventing and remedying visibility impairment at National Parks and

Wilderness Areas caused by man-made air pollution and specifically required major

sources of a certain age that emit any air pollutant that is reasonably anticipated to

cause or contribute to visibility impairment at National Parks and Wilderness Areas to

install the Best Available Retrofit Technology (BART). This requirement applies to

many types of sources, not just coal-fired power plants. BART is determined on a caseby-case consideration of cost, energy and non-air quality environmental impacts,

existing pollution controls, remaining useful life of the source, and the degree of

visibility improvement reasonably anticipated to result from the technology.

3. The Arizona Republic and others say the benefits to the emission rules on Navajo

Generating Station are marginal. The Salt River Project says the NGS contributes only half as

much haze as EPA says, and that the remedies EPA proposes will create improvements not
visible to the human eye.

Do you have a response to that?

We do not agree with these statements. NGS is among the largest sources of NOx in the

United States and affects visibility at eight National Parks and three Wilderness Areas.

As discussed in our proposed rulemaking, modeling from EPA indicates that reducing

emissions from Navajo Generating Station by roughly 80 percent will reduce the

visibility impairment caused by NGS at these eleven Class I areas by over 1 deciview at

each Class I area, which is perceptible to people who visit the parks. These results are

consistent with modeling previously conducted by the National Park Service (and

described in the Technical Support Document for our proposed rulemaking). Even if

the visibility impact was, as SRP claims, half as much as we anticipate with our

modeling, the reduction in visibility impairment caused by NGS at most of the eleven

Class I areas would still be over 1 deciview.

4. I've read that the emissions upgrades will cost as much as $1.1 billion. That seems to be

what I'm seeing in the pre-publication proposal, and I'm certainly hearing that figure quoted a

lot here in Arizona. It is EPA's estimate, is that correct?

No, that is not correct. Our proposal clearly states that EPA estimates capital costs of

NOx controls at NGS to be $541 million. SRP estimates capital costs of NOx controls to

be $589 million (see Table 2 of our proposed rulemaking). It is our understanding that

SRP cites $1.1 billion because they are including costs of new baghouses, which are not

part of EPA’s BART proposal.

5. Is there any chance that the remedies EPA is asking for could be federally funded?

Appropriations have been used before. Scrubbers to reduce SO2 emissions from NGS in

the 1990s were funded within the same federal appropriations as for the Central

Arizona Project, and were incorporated into CAP’s repayment obligation to the federal

government, which is over a 50 year term. The Bureau of Reclamation owns a 24.3

percent share of NGS. The government’s share of the $541 million for new NOx

controls would then be $121 million (accounting for the fact that $45 million was

already spent on the installation of low-NOx Burners and separated over fire air

(combustion controls referred to as LNB/SOFA), that is $541 million minus $45 million

= $496 million, and 24.3% of $496 million is $121 million).

6. It looks like EPA has given the SRP a couple of extensions. How long does SRP have to

comply with improved emissions standards?

The Clean Air Act requires compliance with BART emission limits as expeditiously as

practicable, but within five years of the final rule. There is more flexibility under a

Better than BART Alternative, and in this case, we are proposing additional flexibility

for NGS due to its location on Tribal land, the relationship of NGS to numerous tribes

located in Arizona, as well as the early and voluntary installation of LNB/SOFA over

2009-2011. The time period for compliance under the Better than BART alternative will

depend on which Alternative is finalized. EPA’s Alternative (Alternative 1), as described

in our proposed rulemaking, requires compliance on one unit per year by 2021, 2022,

and 2023. We provided a framework for additional time to comply that would require

additional emission reductions. We want to clarify that this is our BART proposal and

we are seeking comment on the proposed rule until August 5, 2013. The timing of

compliance with the BART emission limits will be established in our final rule.
7. It also seems that EPA is considering alternatives to Best Available Retrofit Technology.

Would it be willing to settle for something less than Selective Catalytic Reduction? What

would some of the options be?

EPA is willing to consider alternatives to BART as long as the alternative results in

greater emissions reductions or visibility benefits to the impacted Class I areas. Our

framework for considering alternatives is described in our proposed rulemaking.

8. In the case of the Navajo plant, and the State Implementation Plan for the three plants cited

in Attorney General Horne's filing: What would happen if Arizona or SRP fail to comply?

EPA has not promulgated a final rule for NGS and we will not know what compliance will

be required until we have a final rule. At this point, for NGS, we are seeking comment

on the proposed rule.

Under the Clean Air Act, requirements contained in State and Federal Implementation

Plans are enforceable by the EPA and by members the public. So, if a facility violates

any of these requirements, the company could be the subject of an enforcement action

by either EPA or citizens.

From: Tom Marcinko [mailto:tmarcinko@gmail.com] 

Sent: Thursday, May 30, 2013 11:01 AM

To: Harris-Bishop, Rusty

Subject: Re: Media request about EPA, Arizona, and coal

Rusty, thanks.

I did get a call & email from David Yogi this a.m., just so you know.

On May 30, 2013 10:31 AM, "Harris-Bishop, Rusty" <Harris-Bishop.Rusty@epa.gov>

wrote:

Hi Tom:

I'm working on getting a response to you today. I'm in LA but sent your email to our staff

working on NGS so will have something for you before the end of the day.

Rusty

Rusty Harris-Bishop

Press Officer/Project Manager

415.972.3140 (o)

415.694.8840 (c)

Harris-Bishop.Rusty@epa.gov

Sent by Blackberry

Apologies for thumb-typing errors

________________________________________
From: Tom Marcinko

Sent: Wednesday, May 29, 2013 11:07:24 PM

To: Harris-Bishop, Rusty

Subject: Media request about EPA, Arizona, and coal

Hello, Mr. Harris-Bishop:

I'm a reporter on assignment for the Phoenix Business Journal, working

on a story about coal energy in Arizona.

I'm hoping you can help me with some questions, or point me in the

right direction.

I'll give a call tomorrow, but if you don't mind I'll lay them out here:

1. How will the EPA respond to the court filing by Attorney General

Horne re: the Apache, Cholla and Coronado coal plants?

2. Mr. Horne says the administration's real purpose is to do away with

coal. Is that correct?

3. The Arizona Republic and others say the benefits to the emission

rules on Navajo Generating Station are marginal. The Salt River

Project says the NGS contributes only half as much haze as EPA says,

and that the remedies EPA proposes will create improvements not

visible to the human eye.

Do you have a response to that?

4. I've read that the emissions upgrades will cost as much as $1.1

billion. That seems to be what I'm seeing in the pre-publication

proposal, and I'm certainly hearing that figure quoted a lot here in

Arizona. It is EPA's estimate, is that correct?

5. Is there any chance that the remedies EPA is asking for could be

federally funded?

6. It looks like EPA has given the SRP a couple of extensions. How

long does SRP have to comply with improved emissions standards?

7. It also seems that EPA is considering alternatives to Best

Available Retrofit Technology. Would it be willing to settle for

something less than Selective Catalytic Reduction? What would some of

the options be?

8. In the case of the Navajo plant, and the State Implementation Plan

for the three plants cited in Attorney General Horne's filing: What

would happen if Arizona or SRP fail to comply?

...Grateful for any light you can shed on this. If you don't mind,
I'll give a call tomorrow, to see if we can set up a time to talk. Or

feel free to contact me any time.

Thanks,

Tom Marcinko

tmarcinko@gmail.com

480-375-8097

@TMA7

People imagined all sorts of things. In reality, nothing was ever the

way people imagined.~Arkady & Boris Strugatsky, ROADSIDE PICNIC
- 1 -

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

 

State of Arizona, et al. 

 Petitioners, 

 v. 

United States Environmental 

Protection Agency, et al. 

 Respondents. 

 

RESPONDENTS’ UNOPPOSED MOTION 

FOR ENLARGEMENT OF BRIEF SIZE

 Pursuant to Fed. R. App. P. 27(d)(2) and the Court’s Order of April 23, 2013, 

respondents United States Environmental Protection Agency, et al. (collectively 

“EPA”) in the above-captioned consolidated petitions for review move the Court for 

leave to file the accompanying 43-page Consolidated Memorandum In Opposition to 

Stay Motions (“Consolidated Memorandum”). Counsel for EPA has contacted 

counsel for all Petitioners and Intervenors, and is informed that no party opposes 

EPA’s request to file an opposition memorandum of 43 pages. 

 In further support of its motion, and as is set forth in the accompanying 

Declaration of Angeline Purdy, EPA states as follows: 

 1. Each of the Petitioners filed a separate petition seeking review of certain 

aspects of an EPA final action published in the Federal Register at 77 Fed. Reg. 

)

)

)

)

)

)

)

)

)

)

)

No. 13-70366 (and consolidated cases 

Nos. 13-70396, 13-70409, 13-70410, 13-

70425) 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-1 Page: 1 of 5
- 2 -

72,512 (December 5, 2012) and entitled “Approval, Disapproval and Promulgation of 

Air Quality Implementation Plans; Arizona; Regional Haze State and Federal 

Implementation Plans; Final Rule” (“Rule”). Each of the Petitioners has also filed a 

separate, 20-page motion asking that the Court stay relevant provisions of the Rule, 

and that it toll compliance periods under the Rule, pending completion of judicial 

review. See Doc. Nos. 8558683, 8553453, 8562017, 8562019, 8570944. 

 2. After Petitioners had filed their respective stay motions, the five 

petitions for review were consolidated by this Court. See Order of April 3, 2013 (Doc. 

No. 8576398). The Court further granted the parties’ subsequent joint motion to 

establish a briefing schedule under which EPA’s consolidated response to the stay 

motions is due on May 17, 2013. See Order of April 23, 2013 (Doc. No. 8601474). 

The Court denied that portion of the parties’ joint proposal that would have 

established a 90-page limit on EPA’s consolidated response memorandum, but did so 

without prejudice to EPA’s filing a renewed motion for leave to file an overlength 

memorandum accompanied by the proposed memorandum. See id. at 2. 

 4. Under Fed. R. App. P. 27(d)(2), a motion or a response to a motion 

“must not exceed 20 pages . . . unless the court permits or directs otherwise.” EPA’s 

Consolidated Memorandum is 43 pages – 23 more pages than allowed for an 

opposition to a single motion under the Federal Rules, but 57 fewer pages than EPA 

would have been entitled to file had it submitted a separate 20-page response to each 

20-page stay motion. 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-1 Page: 2 of 5
- 3 -

 5. EPA is mindful of the Court’s statement that the 90-page limit originally 

requested significantly exceeds the enlargement of size customarily permitted by the 

Court (see Order of April 23, 2013 at 2), and has made every effort to limit the size of 

its Consolidated Memorandum accordingly. This case nonetheless arises against a 

complicated regulatory and factual background that requires some explication. In 

addition, although Petitioners’ arguments in support of their respective stay motions 

overlap in some respects and have been addressed in a consolidated manner wherever 

possible, each Petitioner has separately raised unique points and facility-specific 

arguments that EPA must respond to individually. Compare, e.g., Consolidated 

Memorandum at 14-17, 18-23 (consolidated response to overlapping petitioner 

arguments) with id. at 25-28, 31-33 (addressing arguments unique to particular facility 

or petitioner). 

 6. EPA therefore respectfully requests leave to file the accompanying 43-

page Consolidated Memorandum. In the alternative, if the Court denies EPA’s 

motion, EPA requests that it be granted no less than 14 days to revise and re-submit 

its Memorandum to conform to any page limit established by the Court. This time is 

required because any revised memorandum must be reviewed and approved by 

appropriate officials at EPA and at the Department of Justice. Counsel for EPA has 

consulted with counsel for Petitioners and Intervenors, and is informed that no party 

opposes this alternative request. 

Respectfully submitted, IGNACIA S. MORENO 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-1 Page: 3 of 5
- 4 -

Assistant Attorney General 

/s/ Angeline Purdy 

__________________________ 

ANGELINE PURDY 

Environmental Defense Section 

Environment & Natural Resources 

 Division 

United States Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044 

(202) 514-0996 

Counsel for Respondents

Of Counsel: 

CHARLOTTE WITHEY 

U.S. Environmental Protection Agency, Region IX 

Office of Regional Counsel 

M. LEA ANDERSON 

U.S. Environmental Protection Agency 

Office of General Counsel 

May 17, 2013 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-1 Page: 4 of 5
- 5 -

CERTIFICATE OF SERVICE

 I hereby certify that on May 17, 2013, I filed the foregoing Unopposed Motion 

for Enlargement of Brief Size, together with the accompanying Declaration of 

Angeline Purdy and Consolidated Memorandum In Opposition To Stay Motions, via 

the Court’s CM/ECF system, which will electronically serve all counsel of record. 

 /s Angeline Purdy 

 ____________________ 

 Angeline Purdy 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-1 Page: 5 of 5
- 1 -

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

 

State of Arizona, et al. 

 Petitioners, 

 v. 

United States Environmental 

Protection Agency, et al., 

 Respondents. 

 

DECLARATION OF ANGELINE PURDY IN SUPPORT OF 

RESPONDENTS’ UNOPPOSED MOTION 

FOR ENLARGEMENT OF BRIEF SIZE

 I, Angeline Purdy, declare the following under penalty of perjury. 

 1. I am a Senior Trial Attorney with the United States Department of 

Justice to whom responsibility for this case has been assigned. 

 2. This declaration is submitted in support of Respondents’ United States 

Environmental Protection Agency, et al.’s (collectively “EPA’s”) motion for leave to 

file a 43-page Consolidated Memorandum In Opposition to Stay Motions 

(“Consolidated Memorandum”) in the above-captioned consolidated petitions for 

review. 

 

)

)

)

)

)

)

)

)

)

)

)

No. 13-70366 (and consolidated cases 

Nos. 13-70396, 13-70409, 13-70410, 13-

70425) 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-2 Page: 1 of 4
- 2 -

 3. Each of the Petitioners filed a separate petition seeking review of certain 

aspects of an EPA final action published in the Federal Register at 77 Fed. Reg. 

72,512 (December 5, 2012) and entitled “Approval, Disapproval and Promulgation of 

Air Quality Implementation Plans; Arizona; Regional Haze State and Federal 

Implementation Plans; Final Rule” (“Rule”). Each of the Petitioners has also filed a 

separate, 20-page motion asking that the Court stay relevant provisions of the Rule, 

and that it toll compliance periods under the Rule, pending completion of judicial 

review. See Doc. Nos. 8558683, 8553453, 8562017, 8562019, 8570944. 

 4. After Petitioners had filed their respective stay motions, the five 

petitions for review were consolidated by this Court. See Order of April 3, 2013 (Doc. 

No. 8576398). The Court further granted the parties’ subsequent joint motion to 

establish a briefing schedule under which EPA’s consolidated response to the stay 

motions is due on May 17, 2013. See Order of April 23, 2013 (Doc. No. 8601474). 

The Court denied that portion of the parties’ joint proposal that would have 

established a 90-page limit on EPA’s consolidated response memorandum, but did so 

without prejudice to EPA’s filing a renewed motion for leave to file an overlength 

memorandum accompanied by the proposed memorandum. See id. at 2. 

 5. EPA is mindful of the Court’s statement that the 90-page limit originally 

requested significantly exceeds the enlargement of size customarily permitted by the 

Court (see Order of April 23, 2013 at 2), and has made every effort to limit the size of 

its Consolidated Memorandum accordingly. This case nonetheless arises against a 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-2 Page: 2 of 4
- 3 -

complicated regulatory and factual background that requires some explication. In 

addition, although Petitioners’ arguments in support of their respective stay motions 

overlap in some respects and have been addressed in a consolidated manner wherever 

possible, each Petitioner has separately raised unique points and facility-specific 

arguments that EPA must respond to individually. 

 6. The Consolidated Memorandum is 23 more pages than allowed for an 

opposition to a single motion under Fed. R. App. P. 27(d)(2), but 57 fewer pages than 

EPA would have been entitled to file had it submitted a separate 20-page response to 

each 20-page stay motion 

 7. Should the Court deny EPA’s motion for leave to file its 43-page 

Consolidated Memorandum and direct EPA to re-submit a Consolidated 

Memorandum of some shorter length, any revised memorandum would need to be 

reviewed and approved by appropriate officials at EPA and at the Department of 

Justice. This process would require a minimum of 14 days from entry of the Court’s 

order. 

 8. I have contacted counsel for all Petitioners and Intervenors, and am 

informed that no party opposes either EPA’s request for leave to file the Consolidated 

Memorandum or EPA’s alternative request for a minimum of 14 days to submit a 

revised Consolidated Memorandum if necessary.

 I declare under penalty of perjury that the foregoing is true and correct to the 

best of my knowledge and belief. 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-2 Page: 3 of 4
- 4 -

Executed this 17th day of May, 2013, in Washington, D.C. 

 /s/ Angeline Purdy 

May 17, 2013 _________________________ 

 Angeline Purdy 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-2 Page: 4 of 4
IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

 

State of Arizona, et al., 

 Petitioners, 

 v. 

United States Environmental 

Protection Agency, et al., 

 Respondents. 

 

EPA’S CONSOLIDATED MEMORANDUM 

IN OPPOSITION TO STAY MOTIONS

IGNACIA S. MORENO 

Assistant Attorney General 

ANGELINE PURDY 

Environmental Defense Section 

Environment & Natural Resources 

 Division 

United States Department of Justice 

Counsel for Respondents

Of Counsel: 

CHARLOTTE WITHEY 

U.S. Environmental Protection Agency, Region IX 

Office of Regional Counsel 

M. LEA ANDERSON 

U.S. Environmental Protection Agency 

Office of General Counsel 

May 17, 2013 

)

)

)

)

)

)

)

)

)

)

)

No. 13-70366 and consolidated cases 

Nos. 13-70396, 13-70409, 13-70410, 13-

70425 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-3 Page: 1 of 54
i

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ................................................................................................ iii 

GLOSSARY ............................................................................................................................ viii 

I. BACKGROUND ............................................................................................................ 3 

 A. Statutory and Regulatory Background ............................................................. 3 

 1. Clean Air Act Overview ............................................................................ 3 

 2. Visibility Protection Under the Act ........................................................ 3 

 B. Factual Background.... ...................................................................................... 6 

 

II. STANDARD GOVERNING MOTION FOR STAY ........................................ 11 

III. ARGUMENT ............................................................................................................... 12 

 A. Petitioners Have Not Shown a Likelihood of Success on 

 the Merits .......................................................................................................... 12 

1. EPA properly disapproved a SIP that did not conform 

 to the Act ............................................................................................... 14 

2. EPA’s determination that the State’s NOx BART 

 determinations for the coal-fired units did not 

 conform to the Act is reasonable and supported by 

 the Administrative Record .................................................................. 17 

a. The record supports EPA’s conclusion that the 

 State’s cost analysis was inconsistent with 

 governing law .............................................................................. 18 

b. The record supports EPA’s conclusion that the 

 State’s visibility analysis was inconsistent with 

 governing law .............................................................................. 21 

 

 3. EPA properly promulgated a FIP ...................................................... 23 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-3 Page: 2 of 54
ii

 a. EPA’s BART determinations for Apache Units 

 1, 2, and 3 are reasonable ........................................................... 25 

 b. EPA’s BART determinations for Cholla Units 

 2, 3, and 4 are reasonable .......................................................... 28 

 c. EPA’s BART determinations for Coronado Units 

 1 and 2 are reasonable ............................................................... 31 

 

 d. EPA considered the “presumptive” NOx emission 

 limits in the Guidelines, but found they were not 

 appropriate for these sources .................................................. 33 

 e. The FIP complies with applicable laws.................................. 34 

 B. Petitioners Have Not Shown Irreparable Harm Absent a 

 Stay ...................................................................................................................... 35 

 C. Neither the Balance of Equities Nor the Public Interest Favors 

 A Stay ................................................................................................................. 43 

IV. CONCLUSION ............................................................................................................. 43 

 

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iii

TABLE OF AUTHORITIES 

CASES

A.O. Smith Corp. v. FTC, 

 530 F.2d 515 (3rd Cir. 1976) ....................................................................................... 36, 38 

Alliance for the Wild Rockies v. Cottrell, 

 632 F.3d 1127 (9th Cir. 2011) ............................................................................... 11, 12, 39 

Am. Bioscience Inc. v. Thompson, 

 243 F.3d 579 (D.C. Cir. 2001) .......................................................................................... 13 

Am. Corn Growers Ass'n v. EPA, 

 291 F.3d 1 (D.C. Cir. 2002) ......................................................................................... 15, 16 

Am. Hosp. Ass'n v. Harris, 

 625 F.2d 1328 (7th Cir. 1980) ........................................................................................... 36 

Ariz. Hosp. & Healthcare Ass'n v. Betlach, 

 865 F. Supp. 2d 984 (D. Ariz. 2012) ................................................................................ 36 

Cal. Pharmacists Ass'n v. Maxwell-Jolly, 

 563 F.3d 847 (9th Cir. 2009) ............................................................................................. 36 

Cent. Ariz. Water Conservation Dist. v. EPA, 

 990 F.2d 1531 (9th Cir. 1993) ..................................................................................... 12, 13 

Chevron U.S.A., Inc. v. EPA, 

 658 F.2d 271 (5th Cir. 1981) ................................................................................................ 3 

Coal. for Econ. Equity v. Wilson, 

 122 F.3d 718 (9th Cir. 1997) ............................................................................................. 40 

EME Homer City Generation, L.P. v. EPA, 

 696 F.3d 7 (D.C. Cir. 2012) ............................................................................................... 24

Envtl. Def. Ctr. v. EPA, 

 344 F.3d 832 (9th Cir. 2003) ............................................................................................. 30 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-3 Page: 4 of 54
iv

Freedom Holdings, Inc. v. Spitzer, 

 408 F.3d 112 (2d Cir. 2005) .............................................................................................. 35 

Gen. Motors Corp. v. United States, 

 496 U.S. 530 (1990) ............................................................................................................... 3 

Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 

 378 F.3d 1059 (9th Cir. 2004) ........................................................................................... 26 

Graphic Commc'ns Union, Chicago Paper Handlers' & Electrotypers' 

 Local No. 2 v. Chicago Tribune Co., 

 779 F.2d 13 (7th Cir. 1985) ............................................................................................... 36

Kansas v. United States, 

 249 F.3d 1213 (10th Cir. 2001) ......................................................................................... 40 

Marathon Oil Co. v. United States, 

 807 F.2d 759 (9th Cir. 1986) ............................................................................................. 26 

Mazurek v. Armstrong, 

 520 U.S. 968 (1997) ............................................................................................................ 11 

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

 666 F.3d 1174 (9th Cir. 2012) ........................................................................................... 12 

Morongo Band of Mission Indians v. FAA, 

 161 F.3d 569 (9th Cir. 1998) ............................................................................................. 34 

Mountain States Legal Found. v. Costle, 

 630 F.2d 754 (10th Cir. 1980) ........................................................................................... 14 

Munoz v. Ashcroft, 

 339 F.3d 950 (9th Cir. 2003) ............................................................................................. 37 

Nken v. Holder, 

 556 U.S. 418 (2009) ...................................................................................................... 11, 39 

Pac. Coast Fed'n of Fishermen's Ass'ns v. Bureau of Reclamation, 

 426 F.3d 1082 (9th Cir. 2005) ........................................................................................... 13 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-3 Page: 5 of 54
v

Ranchers Cattlement Action Legal Fund United Stockgrowers of Am. v. 

USDA, 

 415 F.3d 1078 (9th Cir. 2005) ........................................................................................... 13 

W. States Petroleum Ass'n v. EPA, 

 87 F.3d 280 (9th Cir. 1996) ............................................................................................... 12

Winter v. Natural Res. Def. Council, Inc., 

 555 U.S. 7 (2008) .................................................................................................... 11, 39, 40 

STATUTES 

Regulatory Flexibility Act 

5 U.S.C. §§ 601-612 ................................................................................................................ 25 

5 U.S.C. § 603 ......................................................................................................................... 25 

5 U.S.C. § 605(b) .................................................................................................................... 25 

Clean Air Act

42 U.S.C. § 7410(a)(1) ........................................................................................................ 3, 14 

42 U.S.C. § 7410(c) ......................................................................................................... 3, 6, 14 

42 U.S.C. § 7410(c)(1) ............................................................................................................ 23 

42 U.S.C. § 7410(k)(3) .................................................................................................... 3, 6, 14 

42 U.S.C. § 7410(l) .................................................................................................................. 14 

42 U.S.C. § 7491 ........................................................................................................................ 3 

42 U.S.C. § 7491(a) ............................................................................................................. 4, 19 

42 U.S.C. § 7491(a)(1) ............................................................................................................ 42 

42 U.S.C. § 7491(b) ............................................................................................................ 5, 19 

42 U.S.C. § 7491(b)(2)(A) ....................................................................................... 4, 6, 15, 42 

42 U.S.C. § 7491(g)(2) ............................................................................................................... 4 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-3 Page: 6 of 54
vi

42 U.S.C. § 7491(g)(4) ............................................................................................................... 6 

42 U.S.C. § 7492 ........................................................................................................................ 4 

42 U.S.C. § 7607(b) ................................................................................................................ 12 

42 U.S.C. § 7607(d)(7) ............................................................................................................ 13 

42 U.S.C. § 7607(d)(9) ............................................................................................................ 12 

42 U.S.C. § 7607(d)(9)(A) ...................................................................................................... 12 

 Pub. L. No. 108-99 div. G, title IV, § 425(a), 118 Stat. 417 (2004) .............................. 42 

CODE OF FEDERAL REGULATIONS

40 C.F.R. pt. 51, App. Y ........................................................................................................... 5 

40 C.F.R. § 51.301 ..................................................................................................................... 4 

40 C.F.R. § 51.308 ..................................................................................................................... 5 

40 C.F.R. § 51.308(e)(1)(ii)(A) .................................................................................... 4, 18, 20 

40 C.F.R. § 51.308(e)(1)(ii)(B) .................................................................................................. 5 

40 C.F.R. § 51.308(e)(1)(iv) ...................................................................................................... 6 

40 C.F.R. § 51.308(e)(2) ............................................................................................................ 5 

40 C.F.R. § 51.309 ..................................................................................................................... 5 

40 C.F.R. § 51.309(a) ................................................................................................................. 5 

40 C.F.R. § 51.309(b)(1)-(3) ..................................................................................................... 5 

40 C.F.R. § 51.309(d)(4) ............................................................................................................ 6 

40 C.F.R. § 51.309(g) ................................................................................................................. 6 

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vii

FEDERAL REGISTER

64 Fed. Reg. 35,714 (July 1, 1999) ........................................................................................... 4 

70 Fed. Reg. 39,104 (July 6, 2005) ................................................................. 4, 18, 20, 32, 33 

74 Fed. Reg. 2392 (Jan. 15, 2009) ............................................................................................ 6 

77 Fed. Reg. 42,834 (July 20, 2012) .... 4, 5, 8, 9, 10, 18, 20, 21, 20, 21, 37, 40, 41, 42, 43 

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

EXECUTIVE ORDERS 

Exec. Order No. 12,866, Sec. 10, 58 Fed. Reg. 51,735 (Oct. 4, 1993) ........................... 34 

Exec. Order No. 13,211, Sec. 5, 66 Fed. Reg. 28,355 (May 22, 2001) ........................... 34 

 

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GLOSSARY 

Act Clean Air Act 

BART Best available retrofit technology 

CAA Clean Air Act 

FIP Federal Implementation Plan 

LNB Low NOx burners 

lb/mmBtu Pounds/million British Thermal Units 

NOx Nitrogen oxides 

OFA Over fire air 

SCR Selective catalytic reduction 

SIP State Implementation Plan 

SO2 Sulfur dioxide 

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IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

 

State of Arizona, et al., 

 Petitioners, 

 v. 

United States Environmental 

Protection Agency, et al., 

 Respondents. 

 

EPA’S CONSOLIDATED MEMORANDUM 

IN OPPOSITION TO STAY MOTIONS

 Respondents United States Environmental Protection Agency, et al. 

(collectively “EPA” or “Agency”) hereby oppose stay motions filed by Petitioners in 

the above-captioned consolidated matters.1

 Petitioners challenge EPA actions taken 

to ensure that emissions of air pollutants from certain power plants in Arizona 

comply with the requirements of the Clean Air Act (“CAA” or “Act”). See “Approval, 

 

1

 See Petitioner Arizona Electric Power Cooperative, Inc.’s [“AEPCO’s”] Motion 

Staying [sic] Final Rule Pending Completion of Judicial And Agency Review (No. 13-

70396, Doc. No. 8553453) (“AEPCO Mot.”); State of Arizona (“State” or “Arizona”) 

Motion for Stay of Final Rule (No. 13-70366, Doc. No. 8558683) (“State Mot.”); 

Motion of Petitioner Arizona Public Service Company [“APS”] For Stay of Agency 

Rule (No. 13-70409, Doc. No. 8562019) (“APS Mot.”); Motion of Petitioner Salt 

River Project Agricultural Improvement And Power District [“SRP”] for Stay of 

Agency Rule (No. 13-70410, Doc. No. 8562017) (“SRP Mot.”); Motion of Petitioner 

PacifiCorp For Stay of Agency Rule (No. 13-70425, Doc. No. 8570944) (“PacifiCorp 

Mot.”). Multiple petitioners are sometimes referred to collectively herein as 

“Petitioners.” 

)

)

)

)

)

)

)

)

)

)

)

No. 13-70366 and consolidated cases 

Nos. 13-70396, 13-70409, 13-70410, 13-

70425 

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Disapproval, and Promulgation of Air Quality Implementation Plans; Arizona; 

Regional Haze State and Federal Implementation Plans; Final Rule,” 77 Fed. Reg. 

72,512 (Dec. 5, 2012) (“Final Rule”). Petitioners challenge EPA’s partial disapproval 

of Arizona’s State Implementation Plan (“SIP”) submitted under the “regional haze” 

provisions of the Act, as well as EPA’s issuance of a Federal Implementation Plan 

(“FIP”) establishing statutorily-mandated “best available retrofit technology” 

(“BART”) emission limits for certain units at three power plants. 

 Petitioners have failed to demonstrate a likelihood of success on the merits on 

their claim that EPA’s disapproval of Arizona’s SIP for failure to conform to the 

requirements of the Act and its implementing regulations, as well EPA’s concurrent 

promulgation of a FIP to fill the gaps left by that disapproval, was arbitrary, capricious, 

or otherwise contrary to law. Petitioners have also failed to demonstrate that the cost 

of complying with duly promulgated BART emission standards constitutes irreparable 

harm – or that a stay of the FIP, most of which Petitioners need not comply with 

until December 2017 (the maximum time allowed by law) would alleviate any such 

harm. Nor have Petitioners demonstrated that staying a federal action that effectuates 

congressionally-mandated visibility protection requirements would serve the public 

interest. The motions for stay should therefore be denied. 

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I. BACKGROUND

A. Statutory and Regulatory Background. 

1. Clean Air Act Overview. 

 The Act controls air pollution through a system of shared federal and state 

responsibility. See Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990). In 

general, EPA establishes standards that protect air quality, and States implement those 

standards through SIPs. States must submit proposed SIPs or SIP revisions to EPA 

for approval, and EPA is required to review each such submission to determine if it 

“meets all of the applicable requirements of [the Act].” See 42 U.S.C. § 7410(a)(1), 

(k)(3). If a State fails to fulfill its obligation to timely submit a SIP that meets the 

Act’s requirements, the Act provides a backstop of federal controls. Thus, if EPA 

finds that a State has failed to submit a required SIP, or that a State’s SIP is 

incomplete, or if EPA disapproves a SIP in whole or in part, the Act requires EPA to 

promulgate a FIP to take the place of or fill the gaps in the State’s SIP. 42 U.S.C. § 

7410(c). EPA must do so within two years of issuing such a finding or disapproval 

unless the State corrects the deficiency and EPA approves the revised SIP before it 

promulgates a FIP. Id. 

2. Visibility Protection Under The Act. 

 Congress enacted Section 169A of the Act, 42 U.S.C. § 7491, in 1977 “[i]n 

response to a growing awareness that visibility was rapidly deteriorating in many 

places . . . set aside for special protection in their natural states . . . .” Chevron U.S.A., 

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Inc. v. EPA, 658 F.2d 271, 272 (5th Cir. 1981). Congress declared as a national goal 

“the prevention of any future, and the remedying of any existing, impairment of 

visibility in mandatory class I Federal areas [which include certain national wilderness 

areas, national memorial parks, and national parks] which impairment results from 

man-made air pollution.” 42 U.S.C. § 7491(a)(1). To further this goal, Congress 

mandated that each SIP address the statutory requirement that certain stationary 

sources built between 1962 and 1977 install “best available retrofit technology” to 

reduce emissions of visibility-impairing pollutants. 42 U.S.C. § 7491(b)(2)(A); see also

40 C.F.R. § 51.301. Congress further required States to consider five statutory factors 

in determining what constitutes BART: (a) the costs of compliance; (b) the energy and 

nonair quality environmental impacts of compliance; (c) any existing pollution 

controls in use at the source; (d) the remaining useful life of the source; and (e) the 

predicted visibility improvements from use of controls. 42 U.S.C. § 7491(g)(2); see 

also 40 C.F.R. § 51.308(e)(1)(ii)(A). 

 In the 1990 Amendments to the Act Congress added Section 169B, 42 U.S.C. § 

7492, to focus attention on regional haze – that is, visibility impairment caused by 

emissions from multiple sources and activities located across a broad geographic area. 

See 77 Fed. Reg. 42,834, 42,837 (July 20, 2012). EPA promulgated the Regional Haze 

Rule to effectuate this provision. See Regional Haze Regulations, 64 Fed. Reg. 35,714 

(July 1, 1999); Regional Haze Regulations and Guidelines for [BART], 70 Fed. Reg. 

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39,104 (July 6, 2005) (the “BART Guidelines” or “Guidelines”).2 The determination 

of what constitutes BART for any fossil-fueled power plant with a total generating 

capacity greater than 750 megawatts must be made pursuant to the BART Guidelines. 

42 U.S.C. § 7491(b); 40 C.F.R. § 51.308(e)(1)(ii)(B). 

 Under 40 C.F.R. § 51.308 (“Section 308”), each State is required to submit a 

regional haze SIP that establishes visibility-related reasonable progress goals for the 

State’s mandatory Class I areas and long-term strategies for achieving those goals. 

SIPs submitted under Section 308 must include source-specific BART emission limits 

and compliance schedules for each source subject to BART, unless the SIP includes 

an alternative program that provides greater reasonable progress towards improving 

visibility than BART. See 77 Fed. Reg. at 42,838; 40 C.F.R. § 51.308(e)(2).3

 If EPA 

determines that a State’s BART determination does not meet the requirements of the 

Act or its implementing regulations, EPA must disapprove that State’s SIP. If the 

State does not correct any deficiencies, EPA must ensure BART by promulgating a 

 

2

 The Guidelines are codified at 40 C.F.R. Pt. 51, App. Y. Because the pagination of 

the Federal Register makes it easier to locate specific regulatory text, citations to the 

Guidelines herein are to the Federal Register notice. 

3

 40 C.F.R. § 51.309 (“Section 309”) provides a handful of States including Arizona 

with an alternative means of addressing some of these requirements. See 40 C.F.R. 

§ 51.309(b)(1)-(3). These States may submit a regional haze SIP based on the 

recommendations of the Grand Canyon Visibility Transport Commission. States that 

submit a SIP under this provision are deemed “to comply with the requirements for 

reasonable progress with respect to the 16 Class I areas” that the Transport 

Commission addressed. 40 C.F.R. § 51.309(a). For any additional mandatory Class I 

areas within a State, the State must either submit a SIP conforming to Section 308 or 

establish “reasonable progress goals” under Section 309(g)(2). 

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FIP for that state. See 42 U.S.C. § 7410(c), (k)(3). Once an implementation plan is in 

place, the Act requires that sources install and operate BART as “expeditiously as 

practicable,” which is defined as “in no event later than five years after the date of 

approval of [a SIP] (or the date of promulgation of [a FIP]).” 42 U.S.C. 

§ 7491(b)(2)(A), (g)(4); 40 C.F.R. § 51.308(e)(1)(iv). 

B. Factual Background. 4

 In December 2008, Arizona submitted regional haze SIPs to EPA under 

Section 309 (see supra note 3). In doing so, however, the State acknowledged that 

these submissions did not address the requirements of Sections 309(d)(4) or 309(g). 

See Ex. A (A.R. No. B.19). Accordingly, on January 15, 2009, EPA found that 

Arizona had failed to submit the regional haze plan elements required by 40 C.F.R. 

§ 51.309(d)(4) and (g). See 74 Fed. Reg. 2392, 2393 (Jan. 15, 2009). This finding 

triggered a January 15, 2011, deadline for EPA to approve a state-submitted regional 

haze SIP or, in the absence of an approved SIP, to promulgate a regional haze FIP for 

Arizona. See 42 U.S.C. § 7410(c); 74 Fed. Reg. at 2393. When EPA failed to either 

approve a SIP or promulgate a FIP by the January 2011 deadline, it was sued by a 

group of conservation organizations. EPA settled that lawsuit, entering into a 

 

4

 EPA disputes many of the factual statements and legal conclusions contained in the 

State’s background discussion (State Mot. at 2-8) and in the accompanying 

Declaration of Eric C. Massey (“Massey Declaration”); however, most of these 

disputes are not relevant to the instant motion, and therefore will not be addressed at 

this time. 

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Consent Decree establishing deadlines by which EPA would approve a SIP for 

Arizona and/or promulgate a FIP to meet the requirements of the Regional Haze 

Rule.5

 The Consent Decree (as later amended) required in pertinent part that, absent 

an approved SIP, EPA would take final action on BART determinations for the 

emission units at issue here by December 8, 2012. 

 Arizona did not challenge either the January 2009 finding of failure to submit 

or EPA’s associated conclusion that this finding triggered the two-year FIP clock. On 

February 28, 2011, after the expiration of the two-year FIP clock, Arizona submitted a 

new regional haze SIP to EPA for approval under Section 308, which included BART 

determinations for eight emission units at three power plants (the “facilities”): Apache 

Generating Station (Units 1, 2, and 3); Cholla Power Plant (Units 2, 3, and 4); and 

Coronado Generating Station (Units 1 and 2) (collectively the “coal-fired units”). 

Arizona had made a proposed SIP public during a comment period beginning in 

October 2010. 77 Fed. Reg. at 72,570. In its comments, EPA expressed concerns 

about the proposed SIP’s conformance with the Act, the Regional Haze Rules, and 

the BART guidelines, noting among other things that the SIP did not provide 

sufficient analysis and information to support the State’s conclusions. Id. For the 

 

5

 See National Parks Conservation Ass’n v. EPA, No. 11-CV-01548 (D.D.C.), Docket 

No. 21 (partial Consent Decree); Minute Order of November 13, 2012 (amending 

deadlines). The District Court entered the Consent Decree over the State’s objections 

(as an intervenor), and the State has now appealed. See National Parks Conservation 

Ass’n v. EPA, No. 12-5211 (D.C. Cir.). 

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most part, the State declined to revise its proposed SIP before submitting it to EPA 

for approval. Id. at 72,571. 

 Consistent with its comments on the proposed SIP, EPA’s review of the 

submitted SIP revealed significant flaws in the State’s BART analyses. Specifically, 

EPA found that the State had failed to analyze the “best system of continuous 

emission control technology available and associated emission reductions achievable,” 

to consider the degree of improvement in visibility which may reasonably be 

anticipated from installation of BART, and to explain how it had considered and 

weighed all of the statutory factors in making its BART determinations. 77 Fed. Reg. 

at 42,842-43, 72,513-14, 72,516-21. EPA also found that the State’s BART analyses 

were inconsistent with the BART Guidelines, which constitute binding regulatory 

requirements for Cholla Power Plant and Coronado Generating Station. 77 Fed. Reg. 

at 72,566. With respect to the State’s BART determinations for nitrogen oxides 

(“NOx”) at the coal-fired units, these analytical flaws produced results that were not 

consistent with applicable statutory and regulatory requirements. 77 Fed. Reg. at 

72,514. EPA therefore concluded it could not approve those determinations. See id.; 

see also 77 Fed. Reg. at 72,564-67. 

 To fulfill its statutory duty to promulgate a FIP, as well as its duty to meet the 

Consent Decree deadlines, EPA conducted its own BART analyses for NOx at the 

coal-fired units. In particular, EPA performed detailed analyses of the costs of each 

control option, as well as visibility modeling to estimate the degree of visibility 

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improvement associated with each option. See generally 77 Fed. Reg. at 42,852-65; 

see also 77 Fed. Reg. at 72,526-64. In each case, EPA found that the most stringent 

available retrofit control option – selective catalytic reduction (SCR) with low-NOx

burners (LNB) and over fire air (OFA) – was cost-effective and would result in 

substantial visibility improvement, as compared with less stringent options. See 77 

Fed. Reg. at 42,858, 42,861, 42,864.6

 

 On July 20, 2012, EPA proposed to approve the State’s BART determinations 

for sulfur dioxide (“SO2”) and particulate matter (“PM10”) for all emission units, but 

to disapprove the State’s BART determinations for NOx at the seven coal-fired units. 

77 Fed. Reg. at 42,834. To address deficiencies in the State’s SIP, EPA also proposed 

a partial FIP. See id. Specifically, based on its own BART analyses, EPA proposed to 

set NOx emission limits of 0.050 pounds/million British Thermal Units (lb/mmBtu) 

for each unit, except for Coronado Unit 2, for which EPA proposed to set NOx

emission limits of 0.080 lb/mmBtu. Id. at 42,869. EPA explained that existing 

vendor literature and technical studies indicated that these emission rates could be 

achieved by combining SCR with combustion control technology (i.e., LNB with 

OFA). Id. at 42,853. EPA proposed to allow each facility to have the statutory 

maximum of five years to meet these limits. Id. at 42,865. Finally, EPA sought 

 

6

 Consistent with the statute, EPA also found that the energy and non-air quality 

impacts of this control option were not sufficient to warrant its elimination as an 

appropriate control technology. See, e.g., 77 Fed. Reg. at 42,858. 

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comment on whether it should adopt lower SO2 emissions limits for the coal-fired 

units. Id. at 42,836. 

 In the December 2012 Final Rule, EPA modified several aspects of the 

proposal. In response to comments arguing that the proposed emission limits were 

too stringent, EPA modified the limits for each facility. See 77 Fed. Reg. at 72,515 

and Table 1. EPA also modified the NOx compliance methodology to provide for 

plant-wide averaging. See id. EPA retained its proposal to allow the facilities five 

years from promulgation of the final rule to meet the NOx emission limits. See id. 

Finally, in response to comments from APS explaining that Cholla Units 2, 3 and 4 

could not achieve a lower SO2 limit, but could continuously achieve a removal 

efficiency of 95% with control equipment APS was already planning to install, EPA 

promulgated a removal efficiency requirement for SO2 at these units to ensure that 

the control equipment would be properly operated and maintained. 77 Fed. Reg. at 

72,514; infra at 30. 

 Five petitions for review of the Final Rule were filed in this Court. In addition, 

five administrative petitions for reconsideration and requests for stay of the rule were 

filed with EPA. On April 9, 2013, EPA issued letters to APS, PacifiCorp, and SRP 

granting reconsideration as to the compliance methodology for NOx (including the 

plant-wide averaging provision), but not acting on any other portion of the petitions. 

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II. STANDARD GOVERNING MOTION FOR STAY

 A stay is an “extraordinary and drastic remedy, one that should not be granted 

unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. 

Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). Before granting this 

extraordinary relief, the Court must determine: 

(1) whether the stay applicant has made a strong showing that he is likely 

to succeed on the merits; (2) whether the applicant will be irreparably 

injured absent a stay; (3) whether issuance of the stay will substantially 

injure the other parties interested in the proceeding; and (4) where the 

public interest lies. 

Nken v. Holder, 556 U.S. 418, 434 (2009) (citation omitted); see also Winter v. 

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The first two factors of this 

standard “are the most critical.” Nken, 556 U.S. at 434. Thus, it is not enough that 

the chance of success on the merits be merely “better than negligible.” Id. (citation 

omitted). Nor is it sufficient to show a mere possibility of irreparable harm; instead, 

the movant must show that irreparable injury is likely in the absence of a stay. Id. 

(citing Winter, 555 U.S. at 22); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 

1127, 1131 (9th Cir. 2011).7

 This Circuit employs a sliding scale under which – as long 

as the other two elements are satisfied – a stay may be granted if “a plaintiff 

demonstrates that serious questions going to the merits were raised and the balance of 

 

7

 AEPCO’s suggestion that a stay may be granted based on the mere possibility of 

irreparable injury, AEPCO Mot. at 4, is thus inconsistent with this Court’s precedent. 

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hardships tips sharply in the plaintiff’s favor.” Alliance for the Wild Rockies, 632 

F.3d at 1134-35. 

III. ARGUMENT

A. Petitioners Have Not Shown A Likelihood Of Success On The Merits. 

 EPA’s disapproval of portions of Arizona’s regional haze SIP and 

promulgation of a FIP are subject to judicial review pursuant to Section 307(b) of the 

Act, 42 U.S.C. § 7607(b).8

 In determining whether Petitioners have demonstrated that 

they are likely to succeed on the merits, the Court should bear in mind the applicable 

standard of review – i.e., that EPA’s action must be upheld unless Petitioners 

demonstrate that it was arbitrary, capricious, or otherwise not in accordance with law. 

42 U.S.C. § 7607(d)(9)(A); see also W. States Petroleum Ass’n v. EPA, 87 F.3d 280, 

283 (9th Cir. 1996).9

 Review under this provision “is guided by the appropriate 

deference” accorded EPA’s interpretation of both the statute Congress entrusted it to 

administer and of its own regulations. Cent. Ariz. Water Conservation Dist. v. EPA, 

 

8

 Those are the only two final actions at issue in this matter, and the only question for 

the Court is whether those actions were arbitrary, capricious, or otherwise contrary to 

law – a question that, as discussed below, must be answered based solely on the 

administrative record in this matter. PacifiCorp’s claims that EPA has engaged in an 

improper “pattern” of disapproving SIPs in western States – or, conversely, that EPA 

acted inconsistently by approving a different SIP in Colorado based on a different 

administrative record – are therefore irrelevant (albeit disputed) and will not be 

further addressed herein. See PacifiCorp Mot. at 2, 4, 5, 14-15. 

9

 Contrary to AEPCO’s suggestion, see AEPCO Mot. at 2, there is no difference in 

the standard of review for these two actions. See Mont. Sulphur & Chem. Co. v. EPA, 

666 F.3d 1174, 1182 (9th Cir. 2012) (“[w]hen reviewing EPA’s decision regarding a SIP 

or its promulgation of a FIP,” court applies standards of 42 U.S.C. § 7607(d)(9)). 

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990 F.2d 1531, 1539 (9th Cir. 1993). A court must, moreover “be at its most 

deferential” when reviewing EPA’s exercise of its technical and scientific expertise. 

See id. at 1539-40 (citation and internal quotation omitted). For Petitioners to 

demonstrate a likelihood of success on the merits, they thus must show more than 

that they disagree with EPA’s actions, or that it would have been possible for EPA to 

have reached a different result. As long as EPA has “articulated a rational connection 

between the facts found and the choices made,” EPA’s decision must be upheld. Pac.

Coast Fed’n of Fishermen’s Ass’ns v. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th

Cir. 2005) (citation omitted). In applying this deferential standard, moreover, the 

Court may consider only material in the administrative record. See 42 U.S.C. 

§ 7607(d)(7); Cent. Arizona, 990 F.2d at 1544. 10 In light of these deferential standards, 

Petitioners have failed to demonstrate a likelihood of success on the merits. 

 

10The State relies heavily on the Declaration of Eric C. Massey, the director of the 

Arizona Department of Environmental Quality (“ADEQ”), to buttress the State’s 

argument that the SIP submitted by ADEQ conformed to the requirements of the 

Act and the BART Guidelines, as well as to describe the purported legal and factual 

context of, and basis for, EPA’s actions. See, e.g., State Mot. at 7, 8, 11-12. While a 

non-record declaration might be considered in the context of establishing whether the 

movant will suffer irreparable harm absent a stay, it is not pertinent to the success-onthe-merits prong of the stay inquiry in a record review case, and should therefore be 

disregarded in determining whether the State has satisfied its burden in that regard. 

See Ranchers Cattlement Action Legal Fund United Stockgrowers of Am. v. USDA, 

415 F.3d 1078, 1100 (9th Cir. 2005) (where rule was supported by adequate 

administrative record, district court erred in finding that plaintiff was likely to succeed 

on merits of record-review claim); see also Am. Bioscience Inc. v. Thompson, 243 

F.3d 579, 582 (D.C. Cir. 2001) (assessment of likelihood of success should have been 

based on administrative record). 

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1. EPA properly disapproved a SIP that did not conform to the Act. 

 Petitioners emphasize the Act’s cooperative federalism structure, arguing that 

EPA improperly usurped the State’s role by finding that the State’s determination of 

what constitutes the “best available retrofit technology” for the units in question did 

not conform to the Act and its implementing regulations in certain respects. See

AEPCO Mot. at 4-5, 9-10; State Mot. at 1, 9-11; APS Mot. at 4, 5-7; SRP Mot. at 4-6; 

PacifiCorp Mot. at 6-7. According to Petitioners, EPA’s role in reviewing SIP 

revisions is highly limited – if a State’s submission is facially adequate, and that State 

at least appears to have considered the appropriate factors, then EPA need not 

(indeed, may not) look any further. See, e.g., State Mot. at 4, 9-10; APS Mot. at 4. 

 As EPA explained, its role in reviewing SIPs is not so severely restricted. See

77 Fed. Reg. at 72,564-65. True, Congress intended States to be the primary actors in 

ensuring air quality – but it nonetheless directed EPA to ensure that each State 

conforms to applicable requirements, and, if a State does not so conform, to 

promulgate a FIP to ensure protection of air quality. See 42 U.S.C. § 7410(a)(1), (c), 

(k)(3), (l); Mountain States Legal Found. v. Costle, 630 F.2d 754, 757 (10th Cir. 1980) 

(“Congress clearly intended the final decision [on implementation plans] to be that of 

the EPA”). Indeed, EPA may not approve any SIP revision that “would interfere 

with any applicable requirement” of the Act. 42 U.S.C. § 7410(l). 

 Contrary to Petitioners’ suggestions, EPA’s review of state BART 

determinations is no less critical, and no more constrained, than its review of any 

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other SIP. See, e.g., AEPCO Mot. at 4; State Mot. at 1, 3; APS Mot. at 6-7; 

PacifiCorp Mot. at 4.11 States have the first opportunity to determine what constitutes 

BART and to otherwise address the regional haze provisions of the Act. See 42 U.S.C. 

§ 7491(b)(2)(A); Am. Corn Growers Ass’n v. EPA, 291 F.3d 1, 8 (D.C. Cir. 2002) 

(“Congress intended the states to decide which sources impair visibility and what 

BART controls should apply to those sources.”). The Act clearly contemplates, 

however, that EPA will step in if a State fails to do so, stating expressly that 

implementation plans must require that certain sources install BART “as determined 

by the State (or the Administrator, in the case of a plan promulgated under section 7410(c) of 

this title [i.e., a FIP]). . . .” 42 U.S.C. § 7491(b)(2)(A). Petitioners omit or ignore the 

italicized language when citing this provision. See, e.g., State Mot. at 3; APS Mot. at 6. 

 Petitioners rely heavily on American Corn Growers, but that case does not 

reach as far as Petitioners claim. See, e.g., State Mot. at 3-4, 11; APS Mot. at 6; 

PacifiCorp Mot. at 7. In American Corn Growers, the D.C. Circuit vacated a portion 

of EPA’s Regional Haze Rule because that Rule treated one of the five statutory 

BART factors – visibility improvement – differently from the remaining four factors. 

Am. Corn Growers, 291 F.3d at 2, 6-9. The court concluded that by requiring States 

to consider visibility improvement resulting from imposing BART on a group of 

 

11 PacifiCorp goes so far as to argue that EPA is “statutorily required” to defer to state 

BART determinations, PacifiCorp Mot. at 6 (emphasis added), but cites no statute 

that unambiguously imposes such a requirement. 

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sources, rather than on a source-specific basis, EPA encroached on States’ authority 

to determine which sources are subject to BART and what BART controls are 

appropriate for each source. Id. at 7-8. The court, however, did not even address – 

let alone limit – EPA’s authority to reject BART determinations that do not conform 

to the Act. 

 The State also points to the fact that the BART guidelines grant States 

discretion to weigh and balance various factors in making BART determinations. See

State Mot. at 14; see also AEPCO Mot. at 9-10. As EPA explained, this discretion is 

not unlimited, and under the Guidelines a State must still “justif[y] its selection of the 

‘best’ level of control and explain[] the CAA factors” that led the State to choose as it 

did. 77 Fed. Reg. at 72,532; see also 77 Fed. Reg. at 72,517 n.16. EPA did not, as the 

State suggests, disapprove some BART determinations merely because EPA might 

have balanced the BART factors differently than the State did, or because of some 

“policy preference,” AEPCO Mot. at 10; rather, it disapproved those determinations 

because the State failed to analyze the BART factors in a manner consistent with 

applicable requirements and to adequately explain how it had weighed the factors in 

reaching its determinations.12 See 77 Fed. Reg. at 72,565-66. It is worth noting that 

 

12 Nor did EPA disapprove the State’s NOx BART determinations for the coal-fired 

units merely because it “disagree[d]” with those determinations. AEPCO Mot. at 5; 

see also APS Mot. at 7; State Mot. at 9-10. As EPA explained, its use of the term 

“disagree” in some instances was “short hand for our findings that specific elements 

 (footnote con’t) 

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EPA did approve those of the State’s BART determinations that EPA determined 

conformed to the statute, even when EPA expressed concerns with the State’s 

underlying analysis. See, e.g., 77 Fed. Reg. at 72,517. 

 EPA thus did not improperly elevate its own preferences or policies over the 

State’s BART determinations. Instead, EPA exercised its statutory responsibility to 

disapprove a SIP that did not conform to the Act and the Regional Haze Rule. For 

the reasons discussed in the following sections, EPA’s disapproval is fully supported 

by the administrative record. 

2. EPA’s determination that the State’s NOx BART determinations 

 for the coal-fired units did not conform to the Act is reasonable 

 and supported by the administrative record. 

 Petitioners focus on two reasons for EPA’s disapproval of the State’s NOx

BART determinations: EPA’s conclusion that the State had not properly calculated 

the costs of compliance (resulting in an overstatement of the cost of controls), and 

EPA’s conclusion that the State had not properly considered visibility impacts 

(resulting in an understatement of the benefit of controls). Neither argument has 

merit. 

 

of Arizona’s analysis did not meet the requirements of the [Act] and the [Regional 

Haze Rule].” 77 Fed. Reg. at 72,567. 

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 a. The record supports EPA’s conclusion that the State’s cost 

 analysis was inconsistent with governing law. 

 One factor a State must consider in determining BART is the cost of 

compliance. See supra at 4; 40 C.F.R. § 51.308(e)(1)(ii)(A). The BART Guidelines 

provide that a State’s estimate of the cost of potential control technologies must be 

documented “either with data supplied by an equipment vendor . . . or by a referenced 

source (such as the OAQPS Control Cost Manual [(“Cost Manual”)], . . . .). In order to 

maintain and improve consistency, cost estimates should be based on the [Cost 

Manual] where possible.” 70 Fed. Reg. at 39,166. In this case, EPA found that the 

State’s control cost calculations were not consistent with the BART guidelines, and 

that in some cases they included line items not contemplated by the Cost Manual (the 

inclusion of which had the effect of unduly inflating the costs of compliance).13 See

77 Fed. Reg. at 42,841, 42,846, 42,849, 42,851. 

 The State argues that its cost analysis properly included certain “real world 

costs” that are not accounted for in the Cost Manual, which it attacks as overly 

 

13 Petitioners argue that use of the BART guidelines was not mandatory for the 

Apache units. State Mot. at 10; see also AEPCO Mot. at 6-7; supra at 5. EPA 

explained that the guidelines may serve as useful guidance even when they are not 

binding. See 77 Fed. Reg. at 72,565 n.222. EPA’s disapproval of the State’s NOx

BART determination for the Apache units was, moreover, based on the State’s failure 

comply with the Regional Haze Rule (which is binding), not solely on a failure to 

comply with the BART Guidelines. 77 Fed. Reg. at 72,521, 72,565-67. 

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generic.14 State Mot. at 11-12; see also PacifiCorp Mot. at 8-9. In response to 

comments raising similar concerns, before taking final action EPA performed 

supplemental cost analyses for each facility using cost data provided by the utilities 

and accounting for costs not allowed by the Cost Manual’s methodology. 77 Fed. Reg. 

at 72,521, 72,530-31; see generally 77 Fed. Reg. at 72,536-43, 72,546-48, 72,558-61. 

This supplemental analysis – which Petitioners do not even mention – did not change 

EPA’s conclusion that certain of the State’s BART determinations were inconsistent 

with applicable regulations, and in particular that the State’s compliance costs were 

inflated. See 77 Fed. Reg. at 72,516-17, 72,530. The non-record evidence cited by the 

State, see State Mot. at 11-12 (citing Massey Declaration), cannot now be used in this 

record review case to attack that conclusion.15 See supra note 10. 

 As to the claim that EPA has improperly elevated consistency over site-specific 

cost analysis, see State Mot. at 12, Congress directed EPA to develop – and States to 

follow – nationally-applicable regulations to guide state BART determinations. See 42 

U.S.C. § 7491(a), (b). As EPA explained, use of a consistent methodology allows 

 

14 Petitioners also argue that the Cost Manual is outdated because it was published in 

2002. State Mot. at 11; PacifiCorp Mot. at 9. The Cost Manual, however, translates 

prices used in the 2002 edition when conducting analyses in later years. Cost 

estimations using the Cost Manual’s methodology thus will be valid whenever they are 

developed. 

15 Petitioners’ conclusory assertion that the State’s cost assessment was “correct” 

similarly cannot rebut the ample record evidence supporting EPA’s contrary 

conclusion. APS Mot. at 7, SRP Mot. at 8. Arguments that EPA’s FIP cost analysis 

was improper (see APS Mot. at 8, SRP Mot. at 9) are addressed infra at 40-41. 

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EPA to make fair and reasonable “apples to apples” cost comparisons, and thus to 

“ensure[] equitable BART determinations across states and across sources.” 77 Fed. 

Reg. at 72,517-18. Consistency with other EPA-approved BART determinations may 

also serve as one marker of reasonableness and compliance with the Regional Haze 

Rule. By the same token, a BART determination that is inconsistent with approved 

determinations for similar sources is more likely to be inconsistent with governing 

law.16 See 77 Fed. Reg. at 72,567. 

 Finally, Petitioners largely ignore EPA’s finding that, in addition to overestimating

the cost of controls, the State underestimated the effectiveness of selective catalytic 

reduction in reducing NOx emissions. See 77 Fed. Reg. 42,853, 72,565-66. In 

addition to being inconsistent with the requirement to consider the “best system of 

continuous emission control technology available and associated emissions reductions 

available,” 40 C.F.R. § 51.308(e)(1)(ii)(A), this underestimation of the effectiveness of 

SCR further inflated the State’s estimates of cost effectiveness for control options that 

included SCR.17

 

16 AEPCO similarly cites an EPA statement in the proposal that the State’s NOx

BART determinations for the coal-fired units were not consistent with BART 

determinations in other States. AEPCO Mot. at 6. AEPCO misleadlingly cuts the 

quotation short; what EPA actually said was that the determinations were “neither 

consistent with the requirements of the Act nor with BART decisions that other states have 

made.” 77 Fed. Reg. at 42,836 (emphasis added).

17 Cost effectiveness is measured in dollars per ton of pollutant removed. See 70 Fed. 

Reg. at 39,167. Thus, understating the effectiveness of a particular control (i.e., the 

 (footnote con’t) 

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 b. The record supports EPA’s conclusion that the State’s 

 visibility analysis was inconsistent with governing law. 

 Another factor that a State must consider in determining what constitutes 

BART is the predicted visibility improvement from using emission controls. See

supra at 4. EPA recognized that the State’s use of visibility models was generally 

consistent with EPA guidance. 77 Fed. Reg. at 42,841. EPA found, however, that the 

State’s use of modeling results was “problematic” in multiple respects. Id. Among 

other things, the State considered the visibility benefit of controls at only a single 

Class I area for each facility, even though there are multiple other Class I areas nearby. 

Id. As EPA explained, by overlooking significant visibility benefits at additional areas, 

the State understated the visibility benefit of controls. Id.; see also id. n. 26. Based in 

part on the State’s failure to consider significant visibility benefits at more than one 

nearby Class I area, EPA found that the State had failed to fulfill its statutory 

obligation to appropriately consider visibility impacts. 77 Fed. Reg. at 42,841; see also

77 Fed. Reg. at 72,518-20. 

 The State claims that in fact it considered the visibility impact on “all Class I 

areas within 300 kilometers of each facility.” State Mot. at 13.18 The State attempts to 

 

amount of pollution it can remove) makes that control appear more expensive on a 

dollar per ton basis. 

18 The State also asserts that EPA disapproved the SIP without considering whether 

the SIP as a whole would achieve “reasonable progress” towards attaining natural 

visibility levels. State Mot. at 7; see also id. at 19. As EPA explained, although that is 

the ultimate goal of the regional haze program, States are required to implement 

 (footnote con’t) 

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support this with a citation to the Massey Declaration, which not only is not part of 

the administrative record, but which says the opposite of what the State claims it says. 

See Massey Declaration ¶ 30.b. (“Arizona focused on the single most impacted Class I 

area for each facility. . . .”). The State’s assertions in its brief are, moreover, 

contradicted by its own SIP submission (which is in the record), which plainly 

demonstrates that for at least the Cholla and Apache units, Arizona considered only a 

single nearby Class I area. See Ex. B (Arizona Section 308 SIP, App. D at 65, Tables 

10.12 & 10.13 (Apache Units); 77-78, Tables 11.3, 11.4, 11.5 (Cholla Units))(A.R. No. 

B.2.) 

 Petitioners also argue that the BART Guidelines allow States to focus on 

maximum visibility impacts at a single area.19 State Mot. at 13-14; AEPCO Mot. at 8; 

APS Mot. at 8-9; PacifiCorp Mot. at 9; see also SRP Mot. at 10. As EPA explained, 

the Guideline language Petitioners rely on was intended to give States the flexibility to 

avoid doing needless additional costly modeling – as where, for example, visibility 

 

BART during a specific time frame – and if a State’s SIP does not satisfy BART 

requirements, EPA must disapprove that SIP. 77 Fed. Reg. at 72,534; see also infra at 

23-25. 

19 Petitioners assert that EPA expected the State to calculate the cumulative visibility 

impact of emission controls. State Mot. at 13-14; see also APS Mot. at 8-9, SRP Mot. 

at 10-11. To the extent that this point is distinct from Petitioners’ argument that the 

State was entitled to consider visibility impacts on only a single Class I area, it is 

inaccurate. EPA noted as part of its own visibility analysis that cumulative visibility 

improvement may provide a useful supplemental measure of the value of controls, but 

the failure to calculate a cumulative impact was not the basis for EPA’s conclusion 

that the State’s visibility analysis did not conform to the Act. See 77 Fed. Reg. at 

42,857; compare 77 Fed. At Reg. 72,518-19. 

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benefits at a single impacted Class I area would justify selection of the most stringent 

technology as BART. 77 Fed. Reg. at 72,519. EPA does not, however, interpret the 

Guidelines to allow States to ignore the visibility improvements that controls would 

produce in multiple Class I areas, particularly where, as here, the benefits of controls 

at those areas have in fact been modeled. 77 Fed. Reg. at 72,519. As discussed supra

at 12-13, EPA’s interpretation of its own Guidelines is entitled to deference. 

3. EPA properly promulgated a FIP. 

 Section 110 of the Act provides that EPA “shall” promulgate a FIP “at any time” 

within two years after (1) finding that a State has failed to make a required submission, 

(2) finding that a SIP is incomplete, or (3) disapproving a SIP. 42 U.S.C. § 7410(c)(1) 

(emphasis added). This obligation is lifted only if “the State corrects the deficiency, 

and [EPA] approves the plan or plan revision” before EPA promulgates a FIP. Id. 

 The two-year “FIP clock” in Section 110 represents the outside time limit for 

EPA action. There is no corresponding minimum amount of time that EPA must 

wait before promulgating a FIP, and no “statutory right,” State Mot. at 15, to a certain 

amount of time to correct SIP deficiencies. Petitioners’ argument to the contrary 

ignores Section 110’s plain statement that EPA shall promulgate a FIP “at any time” 

after the FIP clock has begun to run (which, as noted above, in this case was in 

January 2009). See 77 Fed. Reg. at 72,568-69. As noted infra at 39-40, moreover, a 

State may also submit proposed SIP revisions at any time, even after EPA has 

promulgated a FIP. Contrary to the State’s argument, EPA’s promulgation of a FIP 

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thus does not “eliminate[]” the State’s opportunity to address deficiencies in its SIP. 

State Mot. at 15. 

 EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), 

PacifiCorp Mot. at 10-11, is not to the contrary. In that case, the D.C. Circuit found 

that EPA had acted improperly because it simultaneously defined certain obligations 

under the Act and issued a FIP to address those obligations. EME Homer City, 696 

F.3d at 31. In this case, by contrast, the Regional Haze Rule was promulgated in 1999, 

and the BART Guidelines were promulgated in 2005. The Guidelines, in turn, 

provide States with detailed instructions on how to, inter alia, analyze the five 

statutory factors and set emission limits representing BART for individual sources. 

See supra at 4-5. The State thus cannot credibly argue that it did not know or 

understand its obligations under the visibility protection provisions of the Act, the 

Regional Haze Rule, or the BART Guidelines – or, for that matter, that it was not 

forewarned of EPA’s concerns with the State’s proposed SIP. See supra at 7-8; 77 

Fed. Reg. at 72,570-71. The new “parameters” that PacifiCorp claims EPA 

introduced in the FIP, PacifiCorp Mot. at 11, are not new legal obligations or 

standards – they are, instead, simply the result of applying longstanding rules and 

guidelines to the facilities at issue.20 

 

20 If PacifiCorp’s argument is taken to its logical conclusion, EPA would never be able 

to issue a FIP – any reason for disapproving a SIP would establish a new “parameter,” 

and EPA would be required to provide an opportunity to correct the deficiency. The 

 (footnote con’t) 

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 Petitioners have thus failed to demonstrate that they are likely to succeed on 

the merits of their claim that EPA prematurely promulgated a FIP. As discussed in 

the following sections, moreover, the emission limits in the FIP are reasonable and 

supported by the administrative record. 

 a. EPA’s BART determinations for Apache Units 1, 

 2, and 3 are reasonable. 

The FIP includes a NOx emission limit of 0.056 lb/mmBtu for Apache Unit 1 

and a limit of 0.070 lb/mmBtu to be averaged across Apache Units 2 and 3, with a 

five-year compliance deadline. 77 Fed. Reg. at 72,514. AEPCO’s attacks on these 

limits are meritless. 

 AEPCO argues that EPA failed to comply with the Regulatory Flexibility Act, 

5 U.S.C. §§ 601-612 (“RFA”), which requires agencies to prepare a “regulatory 

flexibility analysis” describing the impact certain rules will have on small entities. 

AEPCO Mot. at 9; see 5 U.S.C. § 603. This requirement does not apply if the head of 

the agency certifies “that the rule will not, if promulgated, have a significant economic 

impact on a substantial number of small entities.” 5 U.S.C. § 605(b). EPA found that 

one of the entities affected by the FIP – AEPCO – is a “small entity.” 77 Fed. Reg. at 

72,575. The Administrator thus issued a certification pursuant to 5 U.S.C. § 605(b). 

77 Fed. Reg. at 72,575-76. AEPCO does not argue that EPA’s conclusion that the 

 

cycle of submission/disapproval/time for correction could go on indefinitely, 

endlessly frustrating Congress’ express directive that EPA promulgate a FIP to 

effectuate the requirements of the Act if a State fails to do so through its SIP. 

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FIP will affect only one small entity was erroneous, nor could it credibly argue that one

is a “substantial number;” thus, AEPCO cannot demonstrate that EPA failed to 

comply with the RFA.21 

 Even where a formal regulatory flexibility analysis is not required, as a matter of 

policy EPA assesses a rule’s adverse impact on small entities and minimizes that 

impact to the extent possible. 77 Fed. Reg. at 72,543. AEPCO has not demonstrated 

that EPA acted inconsistently with this policy. See AEPCO Mot. at 9. EPA asked 

AEPCO to provide information on “the economics of operating Apache Generating 

Station and what impact the installation of SCR may have on [those economics].” 77 

Fed. Reg. at 72,575. Before finalizing the FIP, EPA thoroughly considered 

information provided by AEPCO concerning its structure as a cooperative, its 

operations, and its customer base. See generally 77 Fed. Reg. at 72,538-42. EPA 

concluded that AEPCO had not demonstrated that installing technology required to 

meet the FIP NOx emission limits would affect its continued viability. 77 Fed. Reg. at 

 

21 AEPCO further claims that by acting on different portions of the State’s SIP at 

different times, EPA “reduced the small number of entities substantially.” AEPCO 

Mot. at 9. AEPCO cites no record evidence to support this claim, which was not 

raised in comments and therefore has been waived. See Marathon Oil Co. v. United 

States, 807 F.2d 759, 767 (9th Cir. 1986) (court will not consider issues not presented 

to administrative agency at appropriate time). The suggestion that EPA deliberately

split its actions in order to “deprive AEPCO of the RFA’s protections,” AEPCO Mot. 

at 9, is equally unsupported, as well as being contrary to the presumption of good 

faith and regularity that attaches to agency actions. See Gifford Pinchot Task Force v. 

U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1071-72 (9th Cir. 2004) (agency is afforded 

presumption of regularity). 

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72,540-41. EPA did, however, take AEPCO’s status as a small entity and a rural 

electric cooperative into account by setting a 30-day rolling average NOx emission 

limit of 0.070 lb/mmBtu (which is higher than the limits set for other units) with a 

five-year compliance deadline. 77 Fed. Reg. 72,542; see also id. at 72,514. 

 AEPCO asserts that EPA “overstated” AEPCO’s technical and financial ability 

to comply with the NOx emission limits adopted in the FIP, and in particular that 

EPA improperly assumed that AEPCO could offset the cost of controls through 

power sales both to AEPCO’s members and to non-members. AEPCO Mot. at 11. 

This is not accurate. EPA’s contractor analyzed two scenarios: one under which 

AEPCO’s members pay 100% of the control cost (as AEPCO argues they will do), 

and one under which a portion is paid by members and a portion through off-system 

sales to non-members. The record demonstrates that EPA considered both of these 

scenarios in assessing the economic impacts of its BART determination for the 

Apache units: 

The contractor’s Incremental Cost Model calculated an increment in 

revenue requirements for AEPCO’s member cooperatives of 12.7% 

under the scenario that spreads the incremental SCR cost across all kWh 

produced at Apache, both Member Co-ops and off-system or nonMember sales. Under the alternative scenario that the incremental cost for SCR is 

covered exclusively by member cooperatives, the incremental revenue requirement was 

15.4%. 

77 Fed. Reg. at 72,540-41 (italics and underlining added); see generally id. and Table 6. 

AEPCO quotes the underlined language, but ignores the immediately following 

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italicized language that demonstrates that EPA considered precisely the scenario that 

AEPCO now claims it did not.22

 b. EPA’s BART determinations for Cholla Units 2, 3, and 4 

 are reasonable. 

 The FIP includes NOx emission limits of 0.055 lb/mmBtu for Cholla Units 2, 3, 

and 4. APS argues that these limits are unreasonable because EPA purportedly 

underestimated the costs of installing and operating emission control technology at 

Cholla. APS Mot. at 7-8. APS offers virtually no support for this argument, pointing 

only to its own comments on the proposed FIP. APS Mot. at 8. In response to these 

comments, EPA performed a supplemental financial analysis taking into account 

additional financial information submitted by APS. See 77 Fed. Reg. at 72,546-48. 

EPA found that the results of this analysis (which also addresses APS’s concern 

regarding the use of non-site specific information, APS Mot. at 8) still supported its 

conclusion that the relevant technology is cost-effective. 77 Fed. Reg. at 72,548. APS 

does not even mention this supplemental analysis, let alone identify any supposed 

flaws in EPA’s approach.23

 

22 AEPCO also argued that EPA overstated AEPCO’s generating capacity. AEPCO 

Mot. at 11. Any such overstatement would, however, be relevant only in considering 

AEPCO’s capacity to sell to non-members – the very scenario that AEPCO argues 

EPA should not have considered. 

23 SRP makes a similar argument that EPA underestimated the costs for SCR at the 

Coronado facility – which EPA similarly addressed in a supplemental financial analysis 

following SRP’s comments. SRP Mot. at 8-9; 77 Fed. Reg. at 72,558-60. Both APS 

and SRP attack EPA’s use of one component of EPA’s Integrated Planning Model 

 (footnote con’t) 

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 APS further asserts that the FIP’s NOx emissions limits cannot be achieved at 

Cholla. See generally APS Mot. at 9-11. EPA’s thorough analysis demonstrated 

otherwise, and APS’s non-record declaration cannot be used in a record review case 

to undermine that analysis. See supra note 10; APS Mot. at 11; compare 77 Fed. Reg. 

at 72,543-46. In a reversal from its earlier position regarding the impropriety of using 

non-site specific information, APS points to actions in which EPA accepted the use – 

at different facilities, in different contexts, and based on different administrative 

records – of less stringent NOx limits than 0.055 lb/mmBtu. 24 APS Mot. at 10; see 

also SRP Mot. at 12. As EPA explained in response to comments, however, BART 

determinations “are performed on a site-specific basis.” 77 Fed. Reg. at 72,544. 

EPA’s conclusion that less-stringent NOx emission limits represented BART at other 

facilities does not mean that its determination that a 0.055 lb/mmBtu NOx emission 

limit represents BART at this facility is irrational. APS also fails to acknowledge that 

EPA’s analysis showed that the control efficiency on which the Cholla limit is based is 

well within the range achieved at other similar units. 77 Fed. Reg. at 72,544-45. 

 

(“IPM”) in its cost analysis as improperly relying on generic information. APS Mot. at 

8, SRP Mot. at 9. EPA fully explained its limited use of one component of the IPM, 

and Petitioners offer nothing to rebut that explanation. See 77 Fed. Reg. at 72,530. 

24 APS also refers to a statement in EPA’s Transport Rule Engineering Feasibility 

Response to Comments stating that current technology can remove NOx “subject to a 

floor limit of [0.06 lb/mmBtu].” APS Mot. at 10. As EPA explained in response to 

comments on the proposed FIP, this limit was “based on assumptions that would be 

minimally achievable to a broad array of covered sources,” as opposed to a sitespecific analysis of the best available system of continuous emission controls. 77 Fed. 

Reg. at 72,528-29. 

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 The FIP also includes a requirement that Cholla Units 2 and 3 achieve a 95% 

SO2 removal efficiency rate. 77 Fed. Reg. at 72,514-15. Petitioners argue that EPA 

failed to seek comment on this requirement. APS Mot. at 11-12; see also PacifiCorp 

Mot. at 12-13. A final regulation that varies from a proposal is valid as long as it is “in 

character with the original proposal and a logical outgrowth of the notice and 

comments.” Envtl. Def. Ctr. v. EPA, 344 F.3d 832, 851 (9th Cir. 2003) (citation 

omitted). EPA did not propose a 95% SO2 removal requirement, see APS Mot. at 11; 

however, APS stated in its own comments that after planned upgrades the Cholla units 

could achieve 95% SO2 control.25 See APS Comments (Ex. 2 to APS Mot.) at 27 

(describing planned upgrades), 63 (maximum rate of SO2 removal continuously 

achievable after planned upgrades will be 95%); 77 Fed. Reg. at 72,523 (noting APS 

comment regarding removal efficiency following upgrade); see also id. at 72,524. The 

95% SO2 removal requirement in the FIP is thus the very definition of a “logical 

outgrowth” of the proposal. See Envtl. Def. Ctr., 344 F.3d at 851 (court considers 

“whether the complaining party should have anticipated that a particular requirement 

might be imposed”). 

 

25 APS’s statements in its motion and in the supporting Gifford Declaration appear to 

contradict those comments. See APS Br. at 12; Gifford Declaration (Ex. 5 to APS 

Mot.) ¶ 10. APS’s post hoc change of position cannot render EPA’s action 

unreasonable, as EPA could consider only the information before it at the time that it 

acted. 

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 The requirement that Cholla average plantwide emissions is similarly a logical 

outgrowth of an APS comment requesting that it be given “the flexibility of averaging 

NOx emissions across all three BART-eligible units at the Plant.” See APS Mot. at 12, 

PacifiCorp Mot. at 11-12; compare APS comments at 16. Petitioners’ unhappiness 

with the fact that EPA made averaging mandatory rather than optional does not mean 

that this result was unforeseeable.26

 c. EPA’s BART determinations for Coronado Units 1 and 2 

 are reasonable. 

 The FIP includes a NOx emissions limit of 0.065 lb/mmBtu averaged across 

the two Coronado units, with a five-year compliance deadline. 77 Fed. Reg. at 72,515 

and Table 1. SRP argues that this limit is inappropriate because (1) Coronado Unit 2 

is subject to a NOx emission limit of 0.080 lb/mmBtu pursuant to a consent decree, 

and that this emission limit is allegedly as stringent as BART; and (2) if Unit 2 emits 

the full 0.080 lb/mmBtu of NOx allowed by this consent decree, Unit 1 will have to 

meet a 0.050 lb/mmBtu emission limit (which SRP argues is unachievable) to 

maintain the plantwide average. SRP Mot. at 5, 6-7, 11-12. 

 As EPA explained, SRP’s claim that the consent decree emissions limit is by 

definition as stringent as BART is based on SRP’s misunderstanding of EPA’s BART 

guidelines. See 77 Fed. Reg. at 72,553-54. The BART guidelines state that emission 

 

26 In an abundance of caution, EPA has nonetheless granted reconsideration on this 

issue, as well as on similar claims raised by SRP and PacifiCorp. See SRP Mot. at 13-

14; PacifiCorp Mot. at 11-12. 

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limits in settlement agreements or consent decrees resolving claims under other 

provisions of the Act often may represent BART, but they do not establish a 

presumption that this is the case. 77 Fed. Reg. at 72,553; see also 70 Fed. Reg. at 

39,164 (standards in “many” PSD determinations or settlement agreements may be 

relied on for purposes of BART). In this case, EPA took the consent decree into 

account in making a NOx BART determination for the Coronado units, but 

concluded that the decree did not represent BART either for Unit 2 or for the facility 

as a whole. 77 Fed. Reg. at 72,553. SRP offers nothing beyond its mistaken 

understanding of the BART Guidelines to suggest that that conclusion was flawed. 

See SRP Mot. at 7-8. 

 As to SRP’s averaging argument, see SRP Mot. at 11-12, the consent decree 

sets a maximum NOx emission level for Coronado Unit 2, not a minimum, and SRP’s 

own analysis shows it would be technically feasible for Unit 2 to achieve NOx

emission rates below the level allowed by the decree (thereby creating more room for 

emissions at Unit 1).27 See 77 Fed. Reg. at 72,555-56. The purported Unit 1 NOx

emissions limit of 0.050 lb/mmBtu is thus SRP’s own creation, not EPA’s. The fact 

that EPA has stated that an emissions limit that it did not impose is not achievable at 

 

27 SRP submitted an analysis of various measures that could be taken to improve the 

performance of the current SCR design for Unit 2. 77 Fed. Reg. at 72,555. Based on 

this analysis, EPA found that installation of a “low-load temperature controller” 

would allow Coronado Unit 2 to achieve a 30-day rolling average NOx emission rate 

of 0.072 lb/MMBtu and would be cost-effective. 77 Fed. Reg. at 72,555-56. 

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Coronado does not mean that the limit that it did impose is equally unachievable.28 

See 77 Fed. Reg. at 72,554-55. 

 d. EPA considered the “presumptive” NOx emission limits 

 in the Guidelines, but found they were not appropriate for 

 these sources. 

 APS’s claim that the NOx emission limit in the FIP is improper because EPA 

“did not consider” the Guidelines’ presumptive NOx emissions limit, APS Mot. at 11 

n.3, is demonstrably untrue. EPA did consider this limit, but concluded that in this 

case, because of the nature of the fuel historically used at the Apache, Cholla, and 

Coronado units, there is no single presumptive NOx emission limit that applies to any 

of these units.29 77 Fed. Reg. at 72,529. EPA went on to state that for that reason, 

rather than relying on the numerical presumptive limits in the BART Guidelines, it had 

considered the basis for those limits – including the use of combustion control 

technology, boiler type, and coal type – in analyzing the BART factors for each facility. 

 

28 SRP’s discussion of other instances in which EPA has found such a limit 

unachievable, see SRP Mot. at 12-13, is thus beside the point. The distinctions 

between the other actions identified by SRP and EPA’s BART determination here are 

fully explained in the record. See 77 Fed. Reg. at 72,528-29. 

29 Because EPA concluded that the presumptive NOx limit in the guidelines was not 

applicable to any of the coal-fired units, the State’s assertion that the NOx emission 

limits in the SIP conformed to those Guidelines, State Mot. at 10, is beside the point. 

That assertion is in any event not entirely consistent with the administrative record. 

Compare, e.g., Massey Declaration ¶ 20, Table 1 (stating that presumptive NOx

emission limit for Coronado Unit 2 is 0.32 lb/mmBtu because Unit 2 burns bituminous

coal) with Ex. D at 3 (SRP comments stating Coronado currently burns subbituminous 

coal) (A.R. Doc. No. I 20) and 70 Fed. Reg. at 39,172, Table 1 (presumptive NOx 

emission limit is 0.23 lb/mmBtu where fuel is subbituminous coal). 

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 e. The FIP complies with applicable laws. 

 

 PacifiCorp argues that the FIP is inconsistent with Executive Orders 12866 and 

13211, both of which EPA concluded did not apply to this action. See 77 Fed. Reg. 

at 72,575-76); PacifiCorp Mot. at 13-14. An agency’s alleged noncompliance with 

these Executive Orders is not subject to judicial review in any event, and thus is not a 

basis for finding that PacifiCorp is likely to succeed on the merits. See Exec. Order 

No. 12,866, Sec. 10, 58 Fed. Reg. 51,735 (Oct. 4, 1993) (order “is intended only to 

improve the internal management of the Federal Government, and does not create 

any right or benefit, substantive or procedural, enforceable at law or equity by a party 

against the United States . . . ”); Exec. Order No. 13,211, Sec. 5, 66 Fed. Reg. 28,355 

(May 22, 2001) (same); Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 575 

(9th Cir. 1998) (orders with identical language “specifically state that they do not create 

any right to judicial review for alleged noncompliance”). 

 PacifiCorp also argues that EPA failed to comply with the Unfunded Mandates 

Reform Act (“UMRA”), which requires agencies to prepare certain analyses if a rule 

includes “Federal mandates” that may result in aggregate expenditures of $100 million 

or more by state, local, or tribal governments or the private sector. PacifiCorp Mot. at 

13-14. PacifiCorp’s claim that EPA has not considered whether aggregate costs to the 

private sector may exceed $100 million, PacifiCorp Mot. at 13-14, is flatly contradicted 

by the administrative record. See 77 Fed. Reg. at 72,551 and n. 174 (concluding that 

aggregate costs will not exceed $65 million). PacifiCorp’s true complaint appears to 

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be that EPA did not consider whether this action in combination with other actions will 

impose aggregate costs of over $100 million. PacifiCorp Mot. at 13-14. PacifiCorp 

has, however, identified nothing in UMRA or any other law that requires EPA to do 

so, and offered no rebuttal to EPA’s demonstration that such an analysis is not 

required. See 77 Fed. Reg. at 72,551. 

 Petitioners have, in sum, failed to demonstrate that they are likely to succeed on 

the merits of any of their claims – or even that there is a serious question in that 

regard – and their stay motions should therefore be denied. Petitioners have, however, 

also failed to meet their burden with regard to the remaining stay factors. 

B. Petitioners Have Not Shown Irreparable Harm Absent A Stay. 

 The utility Petitioners argue that they will be irreparably harmed absent a stay 

because they must spend money to comply with the FIP, and these costs cannot be 

recovered even if they prevail on the merits. See, e.g., AEPCO Mot. at 12-14; APS 

Mot. at 14-16; PacifiCorp Mot. at 15-17. EPA does not dispute that complying with 

the FIP will impose significant costs on the affected facilities by the December 2017 

compliance date.30 As multiple Courts of Appeals have held, however, the cost of 

complying with a law or regulation does not constitute irreparable harm for purposes 

of obtaining a stay. See Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 115 (2d Cir. 

 

30 EPA does not concede that Petitioners’ specific cost claims are necessarily accurate; 

indeed, some of those claims appear to be inflated. Compare, e.g., APS Mot. at 15 

(claiming costs of $1.3 million each for Cholla Units 3 and 4) with Gifford Decl. (Ex. 5 

to APS Mot.) ¶ 11 (testifying to cost of $500,000 total for Cholla Units 3 and 4). 

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2005) (“ordinary compliance costs are typically insufficient to constitute irreparable 

harm”); Am. Hosp. Ass’n v. Harris, 625 F.2d 1328, 1331 (7th Cir. 1980) (same); A.O. 

Smith Corp. v. FTC, 530 F.2d 515, 527 (3rd Cir. 1976) (same). As the Third Circuit 

noted in A.O. Smith Corp., any time a corporation complies with government 

regulations it spends (unrecoverable) money to do so. A.O. Smith Corp., 530 F.2d at 

527. If the costs of compliance with a challenged regulation constituted irreparable 

harm, that prong of the stay standard would be stripped of all meaning in any 

challenge to agency regulations. Cf. Graphic Commc’ns Union, Chicago Paper 

Handlers’ & Electrotypers’ Local No. 2 v. Chicago Tribune Co., 779 F.2d 13, 15 (7th

Cir. 1985) (costs of engaging in arbitration did not constitute irreparable harm 

warranting stay of arbitration order; “[o]therwise every order to arbitrate would be 

deemed to create irreparable harm, and it would be easy to get such orders stayed.”). 

Cases cited by Petitioners for the proposition that unrecoverable monetary loss may 

constitute irreparable harm did not concern the cost of complying with laws or 

regulations, and thus are not helpful. 31 

 It is, moreover, undisputed that a stay would not relieve Petitioners of the 

obligation to install and operate BART – the only question is what technology constitutes 

 

31See Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 851-52 (9th Cir. 2009) 

(loss of revenues due to reduction in reimbursement rates constituted irreparable 

harm); see also Ariz. Hosp. & Healthcare Ass’n v. Betlach, 865 F. Supp. 2d 984, 998-

1000 (D. Ariz. 2012) (although loss of revenue due to reduced reimbursements could 

constitute irreparable harm, plaintiffs had failed to make requisite demonstration of 

“considerable” loss). 

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BART at each facility. See AEPCO Mot. at 15, APS Mot. at 20, SRP Mot. at 19-20; 

see also 77 Fed. Reg. at 42,840 (all facilities agree with State’s determination they are 

subject to BART). If, as Petitioners contend, they must begin incurring compliance 

costs immediately if they are to meet the Rule’s compliance deadline (see, e.g., APS 

Mot. at 13-14; SRP Mot. at 14; PacifiCorp Mot. at 15), then unless they are prepared 

to gamble on the possibility that they will be able to demonstrate that EPA’s actions 

were arbitrary or capricious they must begin spending that money whether the Rule is 

stayed or not. Petitioners’ solution to this inescapable problem is to request that the 

Court extend the compliance deadline by the length of any stay. See, e.g., APS Mot. 

at 20; SRP Mot. at 20; PacifiCorp Mot. at 20. The bulk of Petitioners’ claimed harm, 

however, derives from the FIP’s NOx emission limits, and the December 2017 

compliance deadline for those limits is already set at the maximum time allowable by 

law. See supra at 5-6. Petitioners cite no authority that even suggests that the Court 

has jurisdiction to delay the implementation of BART beyond the deadline mandated 

by Congress simply to accommodate this litigation. Cf. Munoz v. Ashcroft, 339 F.3d 

950, 957 (9th Cir. 2003) (Court could not toll deadline where congress created 

statutory cutoff date for certain applications). 

 The Third Circuit has suggested in dicta that compliance costs may constitute 

irreparable harm in the rare circumstance in which those costs are “so great vis a vis 

the corporate budget that significant changes in a company’s operations would be 

necessitated,” or where compliance would “permanently injure” a company’s 

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reputation or goodwill. A.O. Smith, 530 F.2d at 528. Petitioners SRP, APS, and 

PacifiCorp do not even suggest that their compliance costs will rise to this level. 

AEPCO argues that it will be required to spend approximately $192 million to 

implement what it characterizes as “unaffordable” BART requirements. AEPCO Mot. 

at 12. EPA already fully considered AEPCO’s cost information, however, and 

determined that the BART requirements in the FIP will not affect the viability of the 

Apache Generating Station operated by AEPCO. See supra at 25-28. AEPCO cites 

no new evidence to the contrary. 

 AEPCO also points to a “threat” that its members may purchase power from 

other sources to avoid the costs of complying with the FIP, or may seek to withdraw 

from AEPCO entirely, which would in turn supposedly cripple AEPCO’s operations. 

AEPCO Mot. at 13. During the comment period EPA specifically requested that 

AEPCO provide EPA with information concerning its members’ options for 

purchasing power outside of AEPCO – and at that time, AEPCO said nothing to 

suggest that its members might seek to withdraw from AEPCO or to otherwise avoid 

contractual obligations. See Ex. C (AEPCO Response #13) (AR Doc. 18.e). Even 

now, AEPCO offers nothing more than declarations stating that its various members 

are considering their options. See id.; see also Declaration of J. Tyler Carlson 

(AEPCO Ex. B) ¶ 10 (“Unless relief is granted and AEPCO’s forecast capacity and 

energy charges lowered, MEC will have no choice but to examine all possible options for 

providing power”) (emphasis added); Declaration of Creden W. Huber (AEPCO Ex. 

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C) ¶ 10 (same); Declaration of Vincent Nitido (AEPCO Ex. D) ¶ 8 (same). This 

speculative testimony is insufficient to establish irreparable harm. See Winter, 555 

U.S. at 22 (citation omitted) (plaintiff must “demonstrate that irreparable injury is 

likely;” issuing preliminary injunction based only on possibility of irreparable harm “is 

inconsistent with our characterization of injunctive relief as an extraordinary remedy 

that may only be awarded upon a clear showing that the plaintiff is entitled to such 

relief”); Alliance for the Wild Rockies, 632 F.3d at 1131. 

 The State does not claim it will incur any costs itself, pointing instead to the 

costs that will be incurred by the utility Petitioners, and in turn presumably passed on 

to consumers. State Mot. at 16-17. Other Petitioners also point to costs that will be 

passed on to their retail customers. AEPCO Mot. at 12; APS Mot. at 16 n.4. Costs 

borne by third parties do not, however, constitute irreparable harm to the Petitioners. 

See Nken, 556 U.S. at 434 (court must determine whether the applicant will be 

irreparably injured without a stay).32

 Nor did EPA’s action “eliminate[] Arizona’s authority over its regional haze 

program” or otherwise limit Arizona’s sovereignty. State Mot. at 17-18; see also APS 

Mot. at 18. As discussed supra at 14-17, EPA acted well within its rights when it 

disapproved SIPs that did not conform to federal law, and once it had done so it was 

obligated to promulgate a FIP unless the State first corrected the deficiencies in its 

 

32 To the extent that third-party costs are relevant to the public interest analysis, they 

are discussed in the next section. 

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SIP. The fact that Arizona disagrees with EPA’s fulfillment of its obligation to ensure 

that implementation plans conform to the Act does not convert EPA’s action into an 

improper infringement of state sovereignty. Arizona could, moreover, submit a 

further proposed SIP revision to EPA at any time – in fact, EPA explicitly encouraged 

the State to do precisely that when it proposed to disapprove the original SIP 

submission. See 77 Fed. Reg. at 42,834 This case is thus distinguishable from those 

in which courts found irreparable harm based on some actual limitation on state 

sovereignty.33 

C. Neither The Balance Of Equities Nor The Public Interest Favors A Stay. 

 

 A party seeking a stay must show “that the balance of equities tips in his favor, 

and that a [stay] is in the public interest.” Winter, 555 U.S. at 20. In a failed effort to 

satisfy this burden, Petitioners re-state their arguments concerning the costs of 

compliance with the FIP and EPA’s supposed infringement on state sovereignty. See, 

e.g., AEPCO Mot. at 14, 16; SRP Mot. at 17-18; PacifiCorp Mot. at 18. For the 

reasons discussed supra, those arguments are without merit. 

 Petitioners also argue that the cost of installing additional emission controls will, 

in turn, lead to higher rates for consumers and other undesirable economic side 

 

33 See Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (declining to 

enter stay that would prevent implementation of state constitutional provision); 

Kansas v. United States, 249 F.3d 1213, 1227-28 (10th Cir. 2001) (upholding stay of 

decision that tract of land constituted “Indian lands;” designation as such prevented 

state from adjudicating applicability of certain laws). 

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effects. AEPCO Mot. at 12, 14; see also State Mot. at 18, 20; PacifiCorp Mot. at 18. 

AEPCO is the only petitioner that argues this point with any specificity, pointing to 

its “small and relatively poor rate base,” and arguing that these retail customers will be 

unfairly burdened with higher rates due to the costs of installing control technology.34 

AEPCO Mot. at 12. After considering information provided by AEPCO, however, 

EPA found that projected AEPCO rate increases, while not trivial, were comparable 

to average historical rate increases for AEPCO ratepayers, and “should not cause 

greater hardship than a similar increase elsewhere in the country.” 77 Fed. Reg. at 

72,541. These increases are, moreover, projected to occur seven years in the future – 

well beyond the point at which litigation over the FIP should have concluded. Id. 

AEPCO has not identified any record evidence that undermines these conclusions, or 

otherwise identified any flaws in EPA’s analysis. 

 Pointing to the Regional Haze Rule’s goal of achieving natural visibility 

conditions by 2064, Petitioners argue that a stay will not impair the public interest 

because there is, in their view, no particular rush to reach that goal. 35 AEPCO Mot. 

 

34 The State makes the conclusory statement that increased costs caused by EPA’s 

action will “impact[] the overall economy and labor markets in a time of high 

unemployment,” State Br. at 18. The same thing could undoubtedly be said of any 

number of agency actions, and the State offers no evidence that this particular action 

will have a significant enough impact to warrant the extraordinary remedy of a stay. 

35 The State asserts that its own analysis – which EPA concluded was significantly 

flawed, see 77 Fed. Reg. at 72,565-66 – demonstrates that the FIP will yield only an 

imperceptible visibility improvement. State Mot. at 8; see also SRP Mot. at 18-19. 

EPA’s analysis, however, demonstrates otherwise. See 77 Fed. At Reg. 42,858, Table 

 (footnote con’t) 

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at 14-15; State Mot. at 18-19; APS Mot. at 19; SRP Mot. at 18-19; PacifiCorp Mot. at 

19. This argument is without merit. In addition to establishing an overall national 

goal of preventing and remedying manmade visibility impairment in Class I Federal 

areas, Congress specifically required that certain sources install BART “as 

expeditiously as practicable but in no event later than five years after [approval or promulgation 

of a regional haze implementation plan].” 42 U.S.C. § 7491(a)(1), (b)(2)(A) (emphasis 

added). Congress also specifically mandated that regional haze SIPs be submitted by 

December 17, 2007. Pub. L. No. 108-99 div. G., title IV, § 425(a), 118 Stat. 417 

(2004). Pursuant to Section 110(k) of the Act, EPA would have been required to 

approve or disapprove such plans by June 17, 2009. Thus, Congress intended that 

BART be fully implemented by June 17, 2014 (or in the event of a SIP disapproval 

and subsequent FIP, by June 17, 2016). Petitioners’ judgment as to the relative 

importance of Congress’ mandate as opposed to the effort and expense required to 

comply with the FIP is not relevant. If a stay is granted, and the FIP is ultimately 

upheld, the statutorily-mandated BART process will have been delayed for the 

pendency of this litigation, to the ultimate detriment of the public. 

 Finally, Petitioners argue that the “non-health nature of the FIP” weighs in 

favor of a stay. AEPCO Mot. at 14; see also State Mot. at 19; APS Mot. at 19-20; SRP 

Mot. at 19; PacifiCorp Mot. at 18. Although the FIP effectuates the visibility 

 

17; 77 Fed. Reg. at 42,861, Table 20; 77 Fed. Reg. at 42,863, Table 23; see also 77 Fed. 

Reg. at 72,533-34 (responding to comments on EPA’s visibility analysis). 

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protection provisions of the Act, that does not mean that it has no collateral health or 

environmental benefits. The particulates in the atmosphere that cause regional haze 

can also cause serious health effects in humans, and contribute to other 

environmental damage. 77 Fed. Reg. at 42,837. This argument is, moreover, merely 

a variant on Petitioners’ meritless contention that Congress’ visibility protection goals 

are of no particular importance or urgency. 

 Nor is it significant that the facilities at issue have emission controls in place 

designed to meet the requirements of other provisions of the Act. See APS Mot. at 

19 (arguing that emissions at the Cholla units are already well-controlled); SRP Mot. at 

18 (same). Congress did not merely require that emissions be “well-controlled” to 

protect visibility; rather, it expressly required that facilities subject to BART adopt 

BART controls “as expeditiously as practicable.” The FIP ensures that this 

requirement will be carried out, and the public interest would not be served by 

delaying implementation of the FIP. 

IV. CONCLUSION

 For all of the foregoing reasons, Petitioners’ Motions for Stay should be denied. 

 

Respectfully submitted, IGNACIA S. MORENO 

Assistant Attorney General 

/s/ Angeline Purdy 

__________________________ 

ANGELINE PURDY 

Environmental Defense Section 

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Environment & Natural Resources 

 Division 

United States Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044 

(202) 514-0996 

Counsel for Respondents

Of Counsel: 

CHARLOTTE WITHEY 

U.S. Environmental Protection Agency, Region IX 

Office of Regional Counsel 

M. LEA ANDERSON 

U.S. Environmental Protection Agency 

Office of General Counsel 

May 17, 2013 

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CERTIFICATE OF SERVICE

 I hereby certify that on May 17, 2013, I filed the foregoing Opposition to Stay 

Motions (under cover of the accompanying Unopposed Motion for Enlargement of 

Brief Size) via the Court’s CM/ECF system, which will electronically serve all counsel 

of record. 

 /s Angeline Purdy 

 ____________________ 

 Angeline Purdy 

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STATE OF ARIZONA, et al., 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al. 

No. 13-70366 (and consolidated cases) 

EPA’S CONSOLIDATED OPPOSITION TO STAY MOTIONS 

EXHIBIT A 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-4 Page: 1 of 4
ARIZONA DEPARTMENT 

OF 

ENVIRONMENTAL QUALITY 

11 10 West Washington Street Phoenix, Arizona 85007 

@ "**a 

Janet Napolitano (602) 771 -2300 www.azdeq.gov Stephen A. Owens 

Governor Director 

DEC 2 4m 

Mr. Wayne Nastri 

Regional Administrator 

U.S. Environmental Protection Agency, Region IX 

75 Hawthorne Street, ORA-1 

San Francisco, CA 94 105 

RECEIVED 

Air Division, AIR - Lf 

U.S. WA, REGCON 9 

of Arizona Regional Haze State Implementation Plan 

Arizona Department of Environmental Quality (ADEQ) hereby submits to the U.S. 

Environmental Protection Agency (EPA), the Arizona Regional Haze State Implementation Plan 

and Arizona Regional Haze State Implementation Plan Revision as originally submitted on 

December 23,2003, and December 3 1,2004, respectively. 

Plan submittal is consistent with the provisions of Arizona Revised Statutes (ARS) Title 49, 

5549- 104, 49-1 06, 49-404,49-406, 49-414, and 49-4 14.0 1 and the Code of Federal Regulations 

(CFR) Title 40, 5 55 1.102-5 1.104. The plan also complies with the public process requirements 

in Section 1 1 O(a)(l) and (a)(2) of the Clean Air Act; 40 CFR 55 1.102 regarding preparation, 

notice, and submission of state implementation plans; and Arizona Revised Statutes 49-425 

regarding notice and pubic review of rules. 

The 2003 plan contains all the provisions required by the Federal Regional Haze Rule, 40 CFR 

55 1-309 (64 FR 357 14, July 1, 1999) for Arizona's four mandatory Federal Class 1 areas on the 

Colorado Plateau (see Attachment 1). The 2004 plan revision contains a statutory correction and 

rule packages related to emissions trading and smoke management, including three Arizona 

county rules with independent authority to regulate open burning. 

This plan submittal does not include provisions under §309(d)(4) or §309(g). Due to the new 

requirements for stationary source control strategies based on the decision rendered in Center for 

Energy and Economic Development (CEED) v. EPA, 398 F.3d 653 (DC Cir. 2005), Arizona has 

not been able to complete revisions to §309(d)(4) or complete §309(g) by the deadline of 

December 17,2007. 

Northern Regional Office Southern Regional Office 

1801 W. Route 66 Suite 11 7 Flagstaff, AZ 86001 400 West Congress Streete Suite 433 Tucson, AZ 85701 

(928) 779-03 1 3 (520) 628-6733 

Printed on recycled paper 

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Mr. Wayne Nastri 

Page 2 

If you have any questions, please contact Nancy Wrona, Director, Air Quality Division, at (602) 

77 1-2308 or Diane Arnst, Air Quality Planning Section Manager, at (602) 77 1-2375. 

Sincerely, 

Attachment (1) 

cc: Nancy Wrona, ADEQ 

Colleen McKaughan, EPA 

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Summary of Requirements for Regional Haze Visibility Impairment 

Under 40 CFR 51.309 

Attachment 1 

Nastri-RHaze Submittal 

12-08 

Requirement of 

40 CFR 51.309 

(d)(l) Time Period Covered 

(d)(2) Projection of Visibility 

Improvement 

(d)(3) Treatment of Clean Air 

Corridors 

(d)(4), (f), and (h) 

Implementation of Stationary 

Source Reductions 

(d)(5) Mobile Sources 

(d)(6) Programs Related to 

Fire 

(d)(7) Area Sources of Dust 

Emissions From Paved and 

Unpaved Roads 

(d)(8) Pollution Prevention 

(d)(9) Additional 

Recommendations 

(d)(10) Periodic Revisions 

(d)(ll) State Planning and 

Interstate Coordination 

(g) Reasonable Progress for 

Additional Class I Areas 

Summary of Approach, Content, or Findings 

This SIP addresses reasonable progress at the Class I areas 

on the Colorado Plateau from December 3 1,2003 through 

December 3 1,201 8. 

Projected emissions and estimated visibility changes for 

each of the Class I areas on the Colorado Plateau were 

performed by the Western Regional Air Partnership 

(WRAP). 

The only Clean Air Corridor for the Class I areas on the 

Colorado Plateau does not include any area within Arizona. 

Arizona will include the results of future analyses in its 

periodic plan revisions. 

General stationary source requirements are contained in 

Chapter 7. Chapter 8 contains a description of the SO;! 

Milestone and Backstop Trading Program. Currently Under 

Revision. 

Federal programs (such as low sulfur diesel, engine 

standards, etc.) are identified and describe mobile source 

emissions throughout the planning period. 

Arizona revised its open burning and smoke management 

regulations (A.A.C. R18-2-602 and A.A.C R18-2-1501 - 

15 15) to address the federal requirements. 

WRAP'S analysis concluded dust emissions from paved and 

unpaged roads are currently not a significant regional 

contributor to visibility impairment within the Colorado 

Plateau 16 Class I areas. Arizona will continue to support 

further research on this issue, as it develops its periodic plan 

revisions under 40 CFR 5 1.309(d)(10). 

Programs and policies within Arizona related to renewable 

energy and energy efficiency are described. 

The status of implementation of other strategies and options 

in the Grand Canyon Visibility Transport Commission 

Report are summarized. In addition, an overview of sources 

in and near each Arizona GCVTC Class I area is included. 

Arizona will submit periodic plan revisions to this SIP in 

2008,2013 and 2018. 

Arizona has and will continue to participate in the WRAP. 

As periodic plan revisions are done, consultation will also 

be made with states and tribes not implementing 40 CFR 

5 1.309. 

A supplement to this plan revision to address regional haze 

at the Additional 8 Class I areas in Arizona will be 

developed in accordance with 40 CFR 5 1.309(g)(2-3) and 

submitted by December 3 1,2008. Revised submittal by 

December 17, 2007. Currently under development. 

Chapter in 

SIP 

1.1 

Ch. 14 

Ch. 6 

Ch. 7 

(general) 

Ch. 8 

(so21 

Ch. 9 

Ch. 10 

Ch. 11 

Ch. 12 

Ch. 13 

Ch. 16 

Ch. 15 

Ch. 17 

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STATE OF ARIZONA, et al., 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al. 

No. 13-70366 (and consolidated cases) 

EPA’S CONSOLIDATED OPPOSITION TO STAY MOTIONS 

EXHIBIT B 

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Appendix D 

Arizona BART – Supplemental Information 

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Arizona Best Available Retrofit Technology (BART) 

Analysis and Determination 

Arizona Department of Environmental Quality 

Technical Support Document 

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Technical Support Document for Arizona BART Analyses and Determinations 

Page 65 of 115 

Step 6: Evaluate Visibility Impacts

Tables 10.12 and 10.13 below show the total deciview reduction for the most impacted Class I area for 

Units 2 and 3 respectively. For Units 2 and 3, the most impacted Class I area is the Chiricahua 

Wilderness Area and National Monument. 

Table 10.12 – Control Technology and Visibility Impact Reduction for Unit 2 

Control Deciview 

Reduction

Total 

Annualized Cost 

(Million $) 

Cost per deciview 

reduced (Million 

$/dv) 

Average 

Cost 

($/ton) 

Neural Net/Boiler Combustion 

Control Unknown Unknown Unknown Unknown 

New LNB with OFA System 0.267 $0.533 $1.996 $408 

ROFA 0.359 $1.664 $4.636 $973 

ROFA with Rotamix 0.491 $2.225 $4.532 $944 

LNB with OFA and SNCR 0.416 $1.738 $4.177 $890 

LNB with OFA and SCR 0.676 $6.103 $9.028 $1,878 

Table 10.13 – Control Technology and Visibility Impact Reduction for Unit 3

Control Deciview 

Reduction

Total Annualized 

Cost (Million $) 

Cost per Deciview 

Reduced (Million 

$/dv) 

Average 

Cost ($/ton)

Neural Net/Boiler 

Combustion Control Unknown Unknown Unknown Unknown 

New LNB with OFA 

System 0.206 $0.533 $2.586 $575 

ROFA 0.298 $1.634 $5.484 $1,246 

ROFA with Rotamix 0.436 $2.182 $5.004 $1,131 

LNB with OFA and SNCR 0.356 $1.718 $4.825 $1,113 

LNB with OFA and SCR 0.633 $6.062 $9.577 $2,183 

Step 7: BART Selection

After reviewing the company’s BART analysis, and based upon the information above, ADEQ has 

determined that, for Units 2 and 3 BART for NOX is new LNBs with the existing OFA system with a 

NOX emissions limit of 0.31 lb/MMBtu for both Units 2 and 3 on a 30-day rolling average basis. 

E.2 PM10 BART Analysis 

Step 1: Identify the Existing Control Technologies in Use at the Source

Both Steam Units 2 and 3 are currently equipped with hot-side Electrostatic Precipitators (ESPs). 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-5 Page: 4 of 6
Technical Support Document for Arizona BART Analyses and Determinations 

Page 77 of 115 

Table 11.3: Unit 2 Cost and Visibility Analysis 

Emission Rate NOX Removal Annualized Cost 1st yr Avg. Cost Incremental Control Cost Dv Impac

Area (P

NOX Control Technologies 

lb/MMBtu Tons/year Million $ $/ton $/ton 98th perce

dv reduc

LNB with COFA (Baseline) 0.503 - - - - - LNB with SOFA 0.22 3,314 $0.635 $192 $192 0.187 LNB with SOFA and SNCR 0.17 3,900 $2.175 $558 $2,628 0.218 ROFA 0.16 4,017 $2.297 $572 $1,043 0.232 ROFA with Rotamix 0.12 4,485 $3.384 $755 $2,323 0.261 LNB with SOFA and SCR 0.07 5,071 $9.625 $1,898 $10,650 0.287 

Table 11.4 – Unit 3 Cost and Visibility Analysis 

Emission 

Rate 

NOX

Removal

Annualized 

Cost 

1st yr Avg. 

Cost 

Incremental 

Control Cost 

Dv Impact f

(Petr

NOX Control Technologies 

lb/MMBtu Tons/year Million $ $/ton $/ton 98th percen

reductio

LNB with COFA (Baseline) 0.41 - - - - - LNB with SOFA 0.22 2,096 $0.635 $303 $303 0.126 LNB with SOFA and SNCR 0.17 2,648 $2.157 $814 $2,756 0.164 ROFA 0.16 2,758 $2.243 $813 $786 0.169 ROFA with Rotamix 0.12 3,200 $3.308 $1,034 $2,409 0.198 LNB with SOFA and SCR 0.07 3,751 $9.569 $2,551 $11,363 0.230 

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Technical Support Document for Arizona BART Analyses and Determinations 

Page 78 of 115 

Table 11.5 – Unit 4 Cost and Visibility Analysis 

Emission 

Rate NOX Removal Annualized Cost 1st yr Avg. Cost Incremental Control Cost Dv Impa

Area (P

NOX Control Technologies 

lb/MMBtu tons/year Million $ $/ton $/ton 98th perc

dv reduc

LNB with COFA (Baseline) 0.42 - - - - - LNB with SOFA 0.22 3,390 $0.820 $242 $242 0.207 LNB with SOFA and SNCR 0.17 4,259 $2.852 $670 $2,338 0.26ROFA 0.16 4,433 $3.179 $717 $1,877 0.28ROFA with Rotamix 0.12 5,129 $4.537 $885 $1,951 0.33 LNB with SOFA and SCR 0.07 5,998 $13.23 $2,206 $10,007 0.40

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-5 Page: 6 of 6
STATE OF ARIZONA, et al.,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.

No. 13-70366 (and consolidated cases)

EPA'S CONSOLIDATED OPPOSITION TO STAY MOTIONS

EXHIBIT C

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-6 Page: 1 of 3
Arizona Electric Power Cooperative, Inc. (AEPCO's) Response

to the EPA's Request for Additional Information

13. Documents regarding demand elasticity of the customer base. In the event of AEPCO rate

increases, what are the options for (and limitations on) individual Class A members for

purchasing power outside of AEPCO.

RESPONSE: AEPCO is not aware of any demand elasticity studies that have been

performed specifically for the retail customer base of its Class A

members.

AEPCO has two types of Class A Member Agreements for which options

and limitations differ: (i) partial requirements members (PRMs),

consisting of Mohave Electric Cooperative, Inc. (MEC), Sulphur Springs

Valley Electric Cooperative, Inc. (SSVEC) and Trico Electric

Cooperative, Inc. (Trico); and (ii) All Requirements Members (ABMs),

consisting of Anza Electric Cooperative, Inc. (Anna), Duncan Valley

Electric Cooperative, Inc. (DVEC), and Graham County Electric

Cooperative, Inc. (GCEC).

Each PRM has an AEPCO wholesale power contract (the "Partial

Requirements Capacity and Energy Agreement") that specifies

as a percentage (the "Allocated Capacity Percentage" or "ACP") its

undivided interest in AEPCO Resources (including the units at AEPCO's

Apache Generating Station, which is AEPCO's only generation station).

Each PRM must pay AEPCO fully for its ACP share of the

capacity-related costs of AEPCO's Resources, (i) the fixed costs

(depreciation, interest, property taxes, insurance and margin) and (ii) the

fixed operation and maintenance costs (manpower, overhauls, capital

replacements, demand charges on purchased power, fixed gas

transportation charges, SWTC reserved transmission costs, etc). These

costs are billed by AEPCO to the PRMs whether or not the PRMs

schedule energy from their ACP share of AEPCO Resources. Only

the energy charge components (fuel and fuel handling, energy costs from

purchase power agreements) are charged based on use by a PRM.

To the extent the PRM load exceeds contract minimums they are free

to purchase energy from any external resource.

AEPCO's ARMS each have a wholesale power contract with AEPCO that

requires them to purchase power and energy solely from AEPCO.

AEPCO is obligated to provide all elements of power supply required

to meet the peak demands and energy requirements of the totality of their

loads. AEPCO is the ABM's agent for determining the economic

dispatch of the collective ACP shares of the ABMs, including

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-6 Page: 2 of 3
Arizona Electric Power Cooperative, Inc. (AEPCO's) Response

to the EPA's Request for Additional Information

determining when it is reasonable to use market energy rather than energy

from the Apache units, taking into account their share of the contractual

minimum take from the coal-fired steam Units 2 and 3. The ARMs have

no ability to purchase power outside of AEPCO but like the PRM's,

the ARM's must pay AEPCO fully for their respective ACP shares

of the capacity-related costs of AEPCO's Resources consisting of: (i) the

fixed costs (depreciation, interest, property taxes, insurance and margin )

and (ii) the fixed operation and maintenance costs (manpower, overhauls,

capital replacements, demand charges on purchased power, fixed gas

transportation charges, SWTC reserved transmission costs, etc).

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-6 Page: 3 of 3
STATE OF ARIZONA, et al., 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al. 

No. 13-70366 (and consolidated cases) 

EPA’S CONSOLIDATED OPPOSITION TO STAY MOTIONS 

EXHIBIT D 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-7 Page: 1 of 5
ATTACHMENTS 

ASSOCIATED WITH SRP’S

COMMENTS ON 

PROPOSED REGIONAL 

HAZE RULE

EPA’S PROPOSED RULE RELATED TO APPROVAL,

DISAPPROVAL AND PROMULGATION OF AIR 

QUALITY IMPLEMENTATION PLANS; ARIZONA; 

REGIONAL HAZE STATE AND FEDERAL 

IMPLEMENTATION PLANS

DOCKET ID NO: EPA-R09-OAR-2012-0021

FRL-9700-1

P R E P A R E D B Y :

S A L T R I V E R P R O J E C T

P . O . B O X 5 2 0 2 5

M A I L S T A T I O N 3 5 2

P H O E N I X , A R I Z O N A 8 5 0 7 2

S E P T E M B E R 2 0 1 2

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-7 Page: 2 of 5
RMB Consulting & Research, Inc. 

5104 Bur Oak Circle Phone (919) 510-5102 

Raleigh, North Carolina 27612 Fax (919) 510-5104 

T E C H N I C A L M E M O R A N D U M 

TO: Barbara Sprungl, Salt River Project 

 

FROM: Robert Barton, RMB 

Steve Norfleet, RMB 

 Bethany White, RMB 

 

DATE: September 4, 2012 

SUBJECT: Achievability of the Proposed FIP NOx Limit for CGS Unit 1 

 

At the request of Salt River Project (SRP), RMB Consulting & Research, Inc. (RMB) has 

prepared the following memo that discusses the feasibility of demonstrating continuous 

compliance with the NOx emission limit specified in the recently proposed Federal 

Implementation Plan (FIP) for Unit 1 at the Coronado Generating Station (CGS). Specifically, 

RMB addresses the following issues: 

• Feasibility of the Proposed FIP NOx Limit Based on Historical Operation 

• Review of Other Recently Issued Permits Containing Similar NOx Limits

• Comparison of Compliance Requirements for Other Ultra Low NOx Emitters

Summary 

On July 20, 2012, EPA’s response to the proposed regional haze air quality implementation plan 

submitted by the State of Arizona (e.g., state implementation plan (SIP)) was published in the 

Federal Register. Arizona’s proposed SIP contained revisions to address the Best Available 

Retrofit Technology (BART) requirements of the Regional Haze Rule (RHR) for three electric 

generating plants, including SRP’s Coronado Generating Station (Units 1 and 2), Arizona Public 

Service’s (APS) Cholla Power Plant (Units 2 – 4), and Arizona Electric Power Cooperative’s 

(AEPCO) Apache Generating Station (Units 1 – 3). In their response, EPA approved portions of 

the proposed SIP, including the determination of BART applicability for the above units and the 

proposed BART determinations and emissions limits for sulfur dioxide (SO2) and particulate 

matter (PM10). However, EPA disapproved of the BART determinations for NOx for virtually all 

of the units and issued a proposed FIP with alternative BART determinations and emission limits 

that were more stringent than those proposed by the Arizona Department of Environmental 

Quality (ADEQ) in the proposed SIP. EPA’s disapproval was primarily based on alleged 

deficiencies in the cost and modeling components of ADEQ’s BART determinations. 

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2 

The BART determination for for CGS for NOx in the proposed FIP is based on the installation of 

low-NOx burners (LNB) with over-fired air (OFA) and selective catalytic reduction (SCR). The 

proposed emission limit for Unit 1 is 0.050 lb/mmBtu. EPA issued an alternative limit of 0.080 

lb/mmBtu for Unit 2 because of the significant cost associated with altering the SCR design, 

which has already been completed. However, EPA is requesting comments on an alternative 

emission limit of 0.050 lb/mmBtu for Unit 2. Both of the proposed NOx emission limits are 

based on a rolling 30-day average using data obtained from the continuous emissions monitoring 

systems (CEMS) used for Part 75 compliance and are required to include periods of unit startup, 

shutdown, and malfunction (SSM). These limits are similar to those specified by EPA for the 

Public Service of New Mexico’s San Juan Generating Station (SJGS) in the recently finalized 

FIP for the State of New Mexico.1 

The proposed NOx emission limit is the most stringent emission limit imposed on any new or 

existing pulverized coal unit. While some units equipped with LNB, OFA, and SCR have 

operated at or below 0.050 lb/mmBtu, these emission levels have not been consistently 

demonstrated in practice even at steady-state conditions. Furthermore, the lack of an exemption 

for SSM events renders this limit impossible to meet for most, if not all, units. 

RMB performed an analysis to determine whether the units at CGS could meet the proposed FIP 

NOx emission limit based on historical operating data and NOx control vendor guarantees. Our 

findings suggest that the proposed limit does not represent a consistently achievable level of 

emissions for the units at CGS despite the proposed use of best available NOx control 

technologies. The data show that it is likely that there will be a significant number of 

exceedances of the limit during normal operation. Unfortunately, these periods may be 

mischaracterized as non-compliance in the future rather than evidence that the limit itself is 

unachievable. 

We also find that EPA did not adequately assess the long-term achievability of the FIP NOx limit 

with respect to unit startup and shutdown periods. In fact, the data that EPA presented in support 

of the same limit that was issued for other units in Region 9 actually demonstrates that the limit 

is not consistently achievable. Finally, our review of the recently issued permits with low-NOx

emissions limits also does not support the FIP emission limit because none of these units have an 

equivalent emissions limit to the FIP limit – i.e., one that applies on a 30-day average including

startup, shutdown, and malfunction periods. For those units with similar limits, most of them 

have not yet been constructed, differ significantly in operation and design, and/or have 

insufficient operating data to fully characterize long-term achievability of the proposed limits. 

Based on this analysis, our conclusion is that the proposed FIP NOx limit of 0.050 lb/MMBtu for 

the units at CGS is unachievable and inadequately supported.

 

 

1

 SJGS was issued a NOx emission limit of 0.05 lb/mmBtu (one significant figure) based on a 30-day rolling 

average. The averaging methodology is based on 30 boiler operating days, which is analogous to the NSPS Subpart 

D averaging methodology for existing coal-fired units. 

Case: 13-70366 05/17/2013 ID: 8633590 DktEntry: 19-7 Page: 4 of 5
3 

Introduction 

EPA’s proposed BART NOx limit for Unit 1 is significantly lower than the proposed BART 

emissions limit in the Arizona Regional Haze State Implementation Plan (0.320 lb/mmBtu) and 

is even lower than the proposed New Source Performance Standards (NSPS) for new coal-fired 

electric utility units (~0.07 lb/mmBtu). While RMB is aware of other units with permitted limits 

of 0.05 lb/mmBtu (see discussion below), this is the most stringent limit that we encountered for 

any retrofitted unit2 and has not even been demonstrated achievable at any comparable new unit. 

Section 169A(b) of the Clean Air Act (CAA) specifies that any BART emission limits that are 

established for units at large power plants (> 750 MW) must be determined in accordance with 

BART Guidelines promulgated by EPA. EPA’s Guidelines for BART Determinations Under the 

Regional Haze Rule are found in Appendix Y of 40 CFR Part 51. The Guidelines provide a 

general outline of the procedures that should be used in making BART determinations and 

include not only steps for determining cost effectiveness but also presumptive limits for utility 

sources. The presumptive NOx emission limits for coal-fired units are based on boiler types and 

fuel classification. For dry-bottom turbo-fired boilers the presumptive NOx limits are 0.32 

lb/mmBtu for bituminous coal and 0.23 lb/mmBtu for sub-bituminous coal. CGS currently burns 

100% subbituminous coal from the Power River Basin (PRB) in Wyoming. Historically these 

units have burned blends of PRB with bituminous coal and could burn such blends in the future. 

Therefore, a presumptive NOx limit in the range of 0.23 to 0.32 lb/mmBtu would be consistent 

with EPA’s Guidelines. The State of Arizona submitted a BART determination for CGS with 

NOx emission limits of 0.32 lb/mmBtu for both units based on the use of OFA and LNB. This 

limit is consistent with EPA’s own presumptive BART limits but was rejected in the proposed 

FIP. 

RMB also notes that the proposed emission limit is significantly more stringent than the recently 

finalized NSPS Subpart Da NOx emission standard for new units. The Subpart Da standard is 

0.70 lb/MWh, which corresponds to approximately 0.07 lb/mmBtu on a heat-input basis. BART 

Guidelines indicate that state regulatory agencies should consider the NSPS in the evaluation 

except in cases where the NSPS might be outdated. However, since the Subpart Da revisions 

were finalized in February 2012, it is difficult to see how the new standard could be considered 

outdated and, thus, excluded from consideration. It is also difficult see how the Subpart Da 

standard would not represent the most stringent level of available control since it was based on 

data for units with both combustion controls and SCR. 

EPA’s justification of the proposed FIP limit relies solely on previously issued ultra-low NOx

limits and vendor guarantees. Unfortunately, this approach does not address the achievability of 

the limits for CGS since all of the other units considered in EPA’s analysis do not have 

comparable compliance requirements, have not been constructed and/or do not have sufficient 

data to assess long-term operation. Likewise, limits based on vendor guarantees do not provide 

any long-term assurance of compliance since the guarantee only represents a single test under 

controlled operating conditions. 

RMB considers the proposed NOx limit for Unit 1 at CGS to be a clear example of a flawed 

determination process that does not adequately account for typical unit operating variability. We 

 

2

 Based on 30-day rolling averages including startup, shutdown, and malfunction periods 

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