Case 1:11-cv-01548-ABJ Document 83-2 Filed 05/07/14 Page 1 of 13

IN THEUNITED STATES DISTRICT COURT FORTHEDISTRICT OF COLUMBIA
NATIONAL PARKS CONSERVATION ASSOCIATION, MONTANA ENVIRONMENTAL INFORMATION CENTER, GRAND CANYON TRUST, SAN JUAN CITIZENS ALLIANCE, OURCHILDREN'S EARTH FOUNDATION, PLAINS JUSTICE, POWDERRIVERBASIN RESOURCE COUNCIL, SIERRA CLUB, AND ENVIRONMENTAL DEFENSE FUND Plaintiffs,


### v. GINA MCCARTHY, in her official capacity as Administrator, United States Environmental Protection Agency, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTIONNO. 1: 11-cv-01548 (ABJ)

I, Samuel J. Coleman, under penalty ofperjury, affirm and declare thatthe following statements
are true and correctto the best ofmy knowledge, information, and belief. These statements are based on my own personal knowledge or on information contained in records ofthe United States Environmental Protection Agency (EPA), or supplied to me by EPA employees. 

### 1. I am the Deputy Regional Administrator ofEPARegion 6. I have held this position since 2012. I work directly for the Regional Administratorto assure the effective implementation ofall EPA programs managed in the Region, including air and air permitting. I lead a team ofcareer executives in developing strategic objectives and implementation ofthose strategies to assure protection ofhuman health and the environment in our area of jurisdiction. I advise the Regional Administrator in all policyCase 1:11-cv-01548-ABJ Document 83-2 Filed 05/07/14 Page 2 of 13

areas, and work with the managers and staffin the furtherance and implementation of policy decisions made by the Regional Administrator. 

### I. EPARegion 6 Organization and Responsibilities 2. EPA'sRegion 6 partners with and is responsible for the execution ofEPA programs in the States ofArkansas, Louisiana, NewMexico, Oklahoma, and Texas and for 66 tribal nations. 3. EPA Region 6 is organized into eight Divisions: the ComplianceAssurance and Enforcement Division, the Water Quality Protection Division, the Superfund Division, the Management Division, the Office ofRegional Counsel, the Office ofExternal Affairs, the Office ofEnvironmental Justice and Tribal Affairs, and the Multimedia Planning and Permitting Division. 4. The MultimediaPlanning and Permitting Division includes the AirProgram, which is responsible for implementation ofthe federal CleanAir Act (CAA). The AirPlanning Section is responsible for the review ofcertaintypes ofstate implementation plans (SIPs), including the Texas and OklahomaRegional Haze SIPs.


### II. Region 6 Workload in Response to CourtDeadlines since this ConsentDecree
wasEntered 5. Since the consent decree in this matter was entered by the Court on March 30, 2012, the EPA Region 6 AirProgram has been subjectto approximately 95 deadlines relating to various SIP submissions under settlement agreements or court orders, including**~onsent** decree.

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6. Since March 30, 2012, EPA Region 6 has published Ill proposed and 99 final Federal Registerrulemaking notices taking action on SIP submissions. A substantial number of these actions were done in satisfaction ofsuch obligations. 7. In light ofongoing and pending lawsuits, EPA Region 6 reasonably expects to continue working on and publishing FederalRegisterrulemaking notices at a high pace in response to court deadlines. 

### III. Evaluation ofTexas and OklahomaRegional Haze SIPs i. Overview ofRegional HazeProgramRequirements 8. Evaluation ofthe Texas and OklahomaRegional Haze SIP submissions involves the evaluation ofcomplex technical and legal issues thatrequires coordination within EPA, in orderto ensure a rulemaking that satisfies the Regional Haze requirements ofthe CAA. Regional Haze SIPs must ensure thatreasonable progress is made toward the national goal ofachieving natural visibility conditions at all Class I areas by 2064. Class I areas include certain national wilderness areas, memorial parks, and national parks. 42 

# u.s.c. 7472. 9. Section 169A ofthe Clean Air Act (CAA), 42 U.S.C. 7491 and EPA's Regional Haze Rule (40 CFR 51.308) require that states establish reasonable progress goals for the Class I areas within their borders, and fulfil certainreasonable-progress requirements toward this goaL In recognition thatvisibility impactingpollution crosses state borders, states must also establish long-term strategies for improving the visibility at Class I
areas in other states, which are impacted bytheir emissions. 10. These Regional Haze SIPs, prepared approximately every ten years, must contain
measuresthat ensure reasonable progress is made towards improving visibility at Class I

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areas. Therefore, EPA must evaluate the Texas and OklahomaRegional Haze SIPs, includingTexas and Oklahoma'sreasonable progress goals and Texas' reasonableprogress determinations and long-term strategy. 11. A key aspect ofEPAreview ofboththe reasonable-progress determinations and longterm strategy, as is discussed further below, is the balancing ofthe cost ofthe pollution controls versus the benefitsthose controlsprovide in terms ofimproving visibility at Class I areas. 

### ii. ComplexitiesUnique to Evaluatingthe Texas Regional Haze SIP 12. The Texas Regional Haze SIP submission in particular poses unique technical and
resource challenges for EPA, such as the following complexities. 13. Due to a requirement in the Regional Haze Rule, states with pollution sourcesthat significantly impactthe visibility at Class I areas located in other states are required to collaboratewhile addressing the reasonable-progress**requiremen~** discussed above. In evaluating the separate OklahomaRegional Haze SIP (76 Fed. Reg. 81,728), the Agency noted the significant impact ofpollution from sources located in Texas on Oklahoma's Class I area, and delayed action on that aspect ofthe OklahomaRegional Haze SIP until EPA could review and assess the Texas Regional Haze SIP. 14. Forthis reason, the Agency must evaluate this remaining portion ofthe Oklahoma Regional Haze SIP simultaneously withprocessing the Texas Regional Haze SIP. 15. The technical challenges to completing the Texas and Oklahomarulemakings partly relate to utilizing and evaluatingthe appropriate modeling analyses. EPA and the States
use computermodeling to evaluate the contributions ofdifferent sources ofpollutants that contributeto regional haze, and to evaluate potential benefits ofcontrol methods on

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sources to reduce regional haze. Modelingthus allows EPA andthe Statesto use existing data to projectthe future effects ofregulatory decisions that are required bythe CAA to be made in the present. 16. The modeling required here is particularly complicated because ofthe large number of
sources located within Texas and the vast geography ofthe state. Dozens oflarge
sources in Texas mustbe evaluated for their individual contributions to the visibility problems at a number ofClass I areas. Many ofthese sources are located large distances from the Class I areas whose visibility they impact, requiring that specialized modeling analyses be utilized. 17. EPA is undertaking the appropriate modeling. The additional modeling will enable EPA to develop more specific information concerning the visibility impairment caused by individual sources. Due to the large distances involved and the large number ofsources being analyzed, EPA is utilizing a different model than the standard models used previously by EPA and States for Regional Haze SIPs. This model is complicated and the results it generates are not directly comparable to the modeling platform used in most other States' Regional Haze submittals. Appropriate review ofthis model therefore requires thorough technical and policy analysis and interpretation to ensure compliance withthe Regional Haze Rule, withoutthe benefit ofprior precedentto streamline the process. As such, careful policy deliberation was required by EPA management, and involved intensive briefings and preparation ofmaterial by EPA Region 6 staff. 18. The model requires specialized and extensive computing hardware and expertise in order to use it properly. Unlike typical computer software, this setup alone requires weeks of intensive effort. Once the models have been properly setup, onetypical modeling run

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may require up to eighthigh-end multi-processor computers running continuously for four to five weeksto complete one modeling run scenario. EPARegion 6 anticipates two modeling runs will have to be completed for evaluatingthe Texas Regional Haze SIP. 19. The model generates a very large data set (modeling files take several terabytes ofdata storage) that mustthen go through several extensive post-processing stepsto yield visibility impacts for each individual source identified from the model and estimated pollution concentrations at each Class I area. Suchpost-processing may take another 1-2 weeks to generate and then perform initial Quality Assurance/Quality Control. 20. The intensive nature ofthe modeling also required thatEPA hire contractors at great costto the Agency at a time whenthe Agency is operating under a minimal budget and with resource constraints. EPARegion 6 has onlytwo employees who are Air Quality Modeling Specialistswho work on all SIP-related modeling issues on a limited basis, so the ability to quality assure and quality control the modeling data is constrained by the limited number ofemployeeswith the necessary expertise. EPA Region 6 also has a limited number ofmulti-processor computers capable ofdoing the necessary modeling
runs. Giventhe unique complexity ofthe modeling that needed to be performed in a short timeframe with sophisticated hardware, and the importance ofensuringthe integrity ofthe data results, contracting with specialists in conducting this modeling was deemedthe most appropriate and efficient route. Though this work has been contracted out, EPA Region 6 also assists in assessing the data and providing clarification regarding the work as needed.

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21. Each unit ofeach pollution source identified by the modeling must also undergo control cost analysis. In other words, each unit must be individually analyzed to determine (1) whichtypes ofpollution controls can be retrofitted to it, (2) how effective those controls
are atremoving pollutants, and (3) the cost ofthose controls. Because ofthe highly specialized nature ofthis work and the fact that one high-end control may cost hundreds ofmillions ofdollars to install, EPA mustproceed carefully and deliberately. 22. EPA is reviewing its evaluation ofthe cost and efficiency ofpollution controls at various
sources against information that is proprietary in nature in order to ensure a legally and technically defensible record. Review ofthis proprietary information requires careful compliance with Confidential Business Information (CBI) regulations and practices, and such information is obtained viaEPA's authority under Section 114 ofthe CAA. Such review and exercise ofSection 114 authority has resulted in extratime and effort from the same staffworking on development oftheTexas Regional Haze action. 23. Given the voluminous amount and complex nature ofthe information needed to be processed for analyzing control costs, EPA has also hired contractors to assistwith the work burden. These contracts must be carefully managed, and have already posed significant challenges requiring attention from the same legal and technical staff working on the Texas and OklahomaRegional Haze actions. For instance, one ofEPA's contractors musthave access to CBI that includes proprietary information concerning the design and running ofvarious parts ofa number ofcoal-fired power plants. This information was submitted to EPA by a companythat has claimed it as CBI under40 CFR2.301(h), and EPA must ensure that it is transferred to its contractor properly, and subsequently handled properly. EPA'scontractual relationship with its principal

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contractor, and that contractor's subcontractor, had to be carefully reviewed and modified in orderto ensure such transferral and handling ofCBI in compliance with appropriate regulations and practices. Resolution ofsuch contractual issues is ongoing, and EPA is still working ontransferring the informationtothe contractor. These issues require a great deal ofcoordination, the responsibility for which involve the same staff working on the Regional Haze SIP actions. 

### iii. ProgressMadeTowardsEvaluatingtheTexas and Oklahoma Regional Haze SIPs 24. Despitethese challenges and complexities, EPA has made significantprogress in its evaluation oftheTexas and OklahomaRegional Haze SIPs since the consent decree regarding EPA's action on these SIPs was entered bythis Courton March 30, 2012. The areas ofsignificantprogress are as follows. 25. EPA has conducted ari initial review ofthe Regional Haze SIPs submitted by Texas and Oklahoma. The information in the following paragraphs outlinethe steps EPA is taking in its evaluation ofthe SIPs in relationship to the requirements under the Clean Air Act and its correspondingregulations. 26. Preliminary visibility modeling has been performedthat has enabled the Agency to quantify the degree ofvisibility impairment caused bythe highest impacting sources in Texas. Also, some ofthese sources ofvisibility causing pollution have been preliminarilyevaluated for potentialpollution controls. 27. An information-collection effortregarding the cost and efficiencyofpollution controls has been undertaken, and a substantial amount ofthe necessary information has already been gathered.

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28. EPA is working closely with its contractor in the remaining control-cost evaluation and expectsto finish in the next couple ofmonths, as further described in Section IV ofthis Declaration. Furthermore, as previously discussed, there are remaining contracting issues that have arisen since the consent decree was entered by the Court on March 30, 2012, and EPA Region 6 is in the process ofresolving those issues. 29. EPA is close to being finished withthe configuration ofthe next round ofvisibility modeling, which will include two modeling scenariosto evaluate potential visibility benefits from controls. Upon authorizing the contractorto run those models, it will take another two months to complete the technical work and provide information for review before finalizing in a report. 

### IV. Timetable for Action on Texas and OklahomaRegional Haze SIPs 30. Taking careful consideration oftheunique and complextechnical and legal factors regarding the Texas and OklahomaRegional Haze SIPs as described in this Declaration, EPA has**p~ojected** the necessary time for completion and requests the Courtto grant a schedule to propose action on the Texas and OklahomaRegional Haze SIPs by November 26, 2014, and to take final action by September 4, 2015. 31. This schedule reflects the work needed to meetthe rulemaking requirements set forth in the Administrative Procedure Act, and to fulfill the legal and technical requirements of the CAA. EPA has projected a schedule addressing the interim steps EPA intends to take between now andthe requested dates for proposal and final action on the Oklahoma and Texas Regional Haze SIPs. These steps are intended to achieve satisfaction ofthe pertinent statutory and regulatory requirements by the described projected dates and time frames, and are outlined as follows.

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32. April- August 2014: EPA's/Contractor'spreliminary assessment ofthe set offeasible pollution controls at a number offacilities, including preliminary assessments ofthe control costs. A critical aspect ofEPA's analyses involves consideration ofthe (1) the improvement in visibility that is projected to occur at a number ofClass I areas (e.g., national parks) due to the installation ofa range ofpotential air pollution controls (low to high control efficiencies) and (2) the cost ofinstallingthose controls at the sources of pollution. This task involves the latterportion ofthis assessment. Becausethe cost ofa typical high-end control at a coal-fired powerplantcan run in the hundreds ofmillions ofdollars, EPA'swork is non-trivial, requires thoughtful and careful analyses, and in this case requires the services oftwocontractors with expertise in this area. 33. April- August 2014: Contractormodeling for visibility benefits: This taskinvolves the former portion ofthe· assessment discussed in the previous item. Due to the sheer number ofpotential sources ofpollution under consideration and their large distances from the Class I areas, a complex modeling approach as discussed in Section II ofthis Declaration is required to properly analyze the individual contribution each ofthese sources has on visibility at a number ofClass I areas. 34. July- August 2014: Assess results from supplemental modeling runs received from the contractorto inform benefits ofpotential controls. Although EPA has contracted to have the visibility modeling discussed above performed, EPA's contractor is not tasked with analyzing the results ofthat modeling. Therefore, EPA must still spend considerable time in analyzing the results ofthat modeling, which can extend to the review of terabytes ofdata.

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35. September 2014: Complete all technical analyses and briefmanagement. Followingthe cost analyses and visibility modeling discussed previously, EPA must review the potential visibility benefits ofa range ofpotential air pollution controls for each source ofair pollution under consideration. For each ofthese sources, EPA mustjudgewhether the high, low, or no level ofcontrol (with commensurate levels ofcost) is warranted and mustprepare its management for proposing an action in the FederalRegisterreflective ofsuchjudgment. 36. October 2014: Incorporate all input from EPA Region 6 and Headquarters offices. Due to the complex nature ofEPA'sreview oftheTexas Regional Haze SIP, including issues ofnational significance, a wide and involved range ofinput mustbe sought. This includes both legal and technical input from EPA Region 6's Office ofRegional

. Counsel (ORC), and from outside ofEPARegion 6, including EPA's Office ofGeneral

Counsel (OGC), EPA'sOffice ofAir Quality Standards and.Planning (OAQPS), and EPA's Office ofAir and Radiation (OAR). 37. April- November 2014: Draftproposal and accompanying Technical Support Document. The culmination ofthe technical review described previously is documented in a Technical SupportDocument. Then, regional staff, with input from Headquarters as appropriate, drafts a FederalRegister notice (FRN) setting forth EPA'sproposed action and the legal and technical rationale for that action. Once the proposal is drafted to the satisfaction ofregional and headquarters staff, it is then put into concurrence for management review. Technical and legal front-line supervisors, branch chiefs, and division director's review and comment on the proposal priorto it going to the Regional Administrator for review and signature.

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38. November 2014: Regional Administrator signs by November 26, 2014 a notice of proposed rulemaking. In the eventEPA proposes disapproval ofeitherthe Texas or OklahomaRegional Haze SIPs, EPA must sign, byNovember 26, 2014, a notice proposing promulgation ofa FIP per the terms ofthisconsent decree. 39. December 2014: Once the proposal is signed by November 26, 2014, the proposal is sent to and published in the FederalRegister. Publication in theFederalRegistertypically takes between one to two weeks. 40. December 2014- March 2015: Public comment period. Upon publication ofthe proposal in the FederalRegister, a specified commentperiod will run during which the public will be given an opportunity to comment on the proposal. Giventhe complexity ofthe rulemaking and public interest in the Texas and OklahomaRegional Haze SIPs, EPA expectsto specify at minimum a 60-day commentperiod. 41. In the event EPA proposes a FIP, the CAA requires EPAto provide an opportunity for a public hearing. EPA will provide adequate notice ofany public hearings that are scheduled, and is required by the CAA to keep the record from such hearings open 30 days for comment following the proceedings. These time frames have been contemplated and accounted for with the extension EPArequests from the Court. 42. April- June 2015: Review all comments, and decide based on relevant comments whether or howto amend the proposed rule. Briefings and discussions must occurwith EPA decision makers in the event information is received that compels EPA to consider amending the proposed rule. EPAwill also draft responses to all relevant comments, which must be reviewed by and coordinated with EPA Region 6 ORC, OGC, OAQPS, and OAR as appropriate.

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43. July- August 2015: Draft and sign final action notice. The final action includes EPA's response to comments. The final action goes through the same review and concurrence process as the proposal. However, in the eventthe final action is a FIP, such action must be signed by the Administrator which necessitates additional internal review and
concurrence processes. 44. Additionally, EPA has separately committed to providing status updates on these steps to the litigants so as to keep them apprised ofthe Agency'sproductive efforts in timely completingthe actions required by this consent decree. EPA intends to also provide the
same updates to the affected States and keep an open dialogue and pathway of information in anticipation ofan effective rulemakingprocess. 45. For the reasons stated in this Declaration, including EPA Region 6'sworkload and
resource constraints, the technical complexities involved, and projected interim steps toward completion, EPA requires the additional time requested in orderto properly completethe required actions on the Texas and Oklahoma Regional Haze SIPs.

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