1

HEAL UTAH

NATIONAL PARKS CONSERVATION ASSOCIATION

SIERRA CLUB

POWDER RIVER BASIN RESOURCE COUNCIL

SAN JUAN CITIZENS ALLIANCE

September 14, 2015

By email

Ryan Stephens (rstephens@utah.gov)

Jay Baker (jbaker@utah.gov)

Public Comment

Division of Air Quality

P.O. Box 144820

Salt Lake City, UT 84114-4820

Re: Public comments from Conservation Organizations regarding proposed 

Enforceable Commitment SIP, State Implementation Plan, Section XX.N.

Dear Messrs. Stephens and Baker:

HEAL Utah, National Parks Conservation Association, Sierra Club, Powder River 

Basin Resource Council, and San Juan Citizens Alliance (collectively referred to herein 

as “Conservation Organizations”) submit the following public comments regarding Utah 

Division of Air Quality’s (“UDAQ” or “Utah”) proposed Enforceable Commitment 

(“EC”) State Implementation Plan (“SIP”) which is intended to become part of Utah’s 

Regional Haze (“RH”) SIP, Section XX.N, as well as the related amendment to R307-

110-28. For the reasons discussed below, UDAQ’s proposed Enforceable Commitment 

SIP violates the requirements of Section 309 of the Regional Haze regulations. 40 C.F.R. 

§51.309. Moreover, the proposed EC SIP does not remedy the numerous legal and 

technical deficiencies that exist in the recently adopted Section XX.D.6. of Utah’s RH 

SIP. These legal and technical deficiencies were previously identified in public comment 

letters submitted by the Conservation Organizations dated March 8, 2011, July 16, 2012, 

December 22, 2014, and May 1, 2015, as well as public comment letters submitted by the 

National Park Service on August 1, 2008, March 4, 2011, July 13, 2012, and May 1, 

2015.1 This public comment letter identifies additional legal and technical deficiencies 

with Utah’s proposed adoption of Section XX.N. of the RH SIP and related amendments 

to R307-110-28.

By means of background, Utah’s current RH SIP takes credit for SO2 emission 

reductions occurring as the result of the closure of the Carbon plant. Utah relies on these 

SO2 emission reductions to exempt the Hunter and Huntington power plants from any 

 1

 Each of these comment letters are attached to this comment letter as Exhibit 1-8 and are incorporated into 

this comment letter by reference.
2

NOx emission reductions otherwise required under the Best Available Retrofit 

Technology (“BART”) program. In commenting on the Utah RH SIP, the Conservation 

Organizations and National Park Service both noted that Utah has already taken credit for 

these emission reductions under the SO2 Backstop Trading Program. As a result, Utah 

may not “double count” these emission reductions in both the NOx BART determinations 

for Hunter and Huntington, as well as in the SO2 Backstop Trading Program. Utah’s EC 

SIP attempts to resolve this problem by promising not to take credit for these emission 

reductions in the SO2 Backstop Trading Program and instead rely on these emission 

reductions solely in the NOx BART program for the Hunter and Huntington plants. For 

these reasons stated below, Utah proposed EC SIP amendment is unlawful and fails to 

resolve the deficiencies with Utah’s RH SIP. 

1. The EC SIP erroneously assumes that the RH SIP will effectuate SO2 

reductions at the Carbon plant. 

Utah’s proposed SIP incorrectly states, “In Section D.6.c of this plan, Carbon 

Units 1 and 2 will be shut down.”2 This statement erroneously conveys that the Carbon 

Units are still operating and Utah’s regional haze SIP will mandate closure of the plant. 

This statement is factually incorrect because the Carbon Units ceased operation as of 

April 15, 2015 and are currently being dismantled. PacifiCorp, the owner of the Carbon 

Units, decided years ago to retire these units rather than retrofit the plant to comply with 

the mercury and air toxics (MATS) rule. Thus, the Carbon unit retirements have already 

occurred and were never a component of Utah’s regional haze SIP until after the units 

ceased operation. Utah now attempts to rely on the SO2 emission reductions resulting 

from the Carbon retirements to excuse the Hunter and Huntington BART units their 

NOx/PM regional haze requirements.

Utah’s attempt to take credit for the Carbon SO2 reductions in its regional haze 

SIP won’t do anything to improve visibility. Utah’s emission reduction accounting 

proposal will not reduce visibility-impairing emissions or improve regional haze in the 

region’s treasured national parks. Instead, it will unreasonably delay visibility benefits 

and wrongly exempt BART controls for NOx and PM emissions at the Hunter and 

Huntington plants resulting in continued impairment and an abdication from the statutory 

mandate to make reasonable progress toward natural conditions. The BART program was 

enacted to require some of the oldest grandfathered coal-burning power plants to retrofit 

with new air pollution controls to combat regional haze. Hunter and Huntington Units 1 

& 2 are such BART units and must achieve BART NOx/PM emission reductions to make 

the requisite progress toward eliminating human-caused visibility impairment. As 

discussed more fully below, the Carbon Units are not BART units and emission 

reductions resulting from the MATS program in the manner advanced cannot be credited 

to Hunter and Huntington to excuse their obligations under the regional haze program.

 2

 Section XX.N.
3

2. UDAQ is impermissibly attempting to fit a square peg in a round hole.

Utah’s proposed Enforceable Commitment SIP states that its purpose is to 

“ensure[s] that SO2 emissions reductions from the Carbon power plant closure are not 

double counted in the Regional Haze SIP” (emphasis added). However, the EC SIP fails 

to address the fundamental issue of the whether the SO2 emissions from the Carbon units 

should be counted at all in its NOx/PM regional haze SIP. As discussed below, Utah’s 

attempt to rely on SO2 emission reductions from the Carbon units in the context of a 

NOx/PM regional haze SIP is arbitrary, capricious, and contrary to the purposes of the 

regional haze program.

Utah is trying to fit a square peg in a round hole. Utah has submitted a regional 

haze NOx/PM BART SIP to EPA for approval. The sole focus of the current RH SIP 

submittal is to evaluate necessary NOx and PM emission reductions required by the 

BART program at Hunter and Huntington Units 1 & 2. Instead of evaluating BART NOx 

reductions at Hunter and Huntington, Utah’s RH and EC SIPs slides in a past action for a 

different pollutant from a separate source category and seeks to take credit for SO2 

reductions at the non-BART Carbon units. 

The Carbon plant is not a subject to BART facility and any emission reductions 

from this source cannot be used to excuse upgrades at BART sources in this context. 

Further, the focus of the RH SIP currently pending with EPA is constrained as it relates 

only to BART emission reductions requirements for NOx and PM at the Hunter and 

Huntington BART sources—it is not somehow broader because the state wishes it to be 

so; already delivered SO2 emission reductions from a non-BART source do not displace 

ongoing emissions from Utah’s BART sources. Moreover, even if Carbon’s SO2 

reductions could legitimately be counted, which they cannot, they fail to offset the level 

of pollutant reductions that should be achieved through adequate NOx and PM BART 

critical to making reasonable progress, as is explained in the attached Conservation 

Organization and National Park Service comment letters.

When viewed in its proper light, the inappropriateness of Utah’s latest EC SIP 

proposal becomes readily apparent. Instead of contorting requirements of the regional 

haze program to avoid application of NOx BART to Hunter and Huntington, Utah must 

properly apply the BART program and mandate real NOx emission reductions thereby 

achieving actual improve visibility impairment in Utah’s national parks.

3. UDAQ’s proposed post-hoc amendment of its SO2 RH SIP would 

undermine the legal justification for EPA’s approval of that SIP 

In 2011, Utah submitted an SO2 regional haze SIP to EPA, which EPA approved. 

Utah’s SO2 RH SIP took credit for the Carbon plant SO2 emission reductions in its 

justification for the SIP’s BART alternative for SO2. That alternative program, 

developed under 40 C.F.R. § 51.309 (“Section 309”), relied on a regional SO2 Backstop 

Trading Program to purportedly achieve greater emission reductions than would sourceby-source application of the SO2 BART requirements. According to UDAQ’s “Response 
4

to Comments” in its most recent SIP revision, the SO2 RH SIP did not explicitly account 

for the future Carbon Plant retirement or SO2 emissions reductions in its projected 

emissions inventories for the alternative program, although it was well aware that 

PacifiCorp intended to retire the plant. See Response No. 62. Yet this Response ignores 

that alternative program was found to be “better than BART” expressly because 

emissions reductions projected by those inventories would be exceeded through voluntary 

measures at “smaller, non-BART sources.” Final Rule, State of Utah; Regional Haze 

Rule Requirements for Mandatory Class I Areas Under 40 CFR 51.309, 77 Fed. Reg. 

74,355, 74,360-61 (Dec. 14, 2012). Now, Utah proposes to amend its SO2 RH SIP by 

somehow extracting the previously relied upon Carbon plant SO2 reductions and apply 

these reductions to its NOx/PM BART SIP for Hunter and Huntington. But Utah’s 

proposal would effectively undermine EPA’s legal justification for approving the Section 

309 alternative program. Having touted the 309 Program’s ability to garner SO2 

emission reductions from “smaller, non-BART sources” such as the Carbon Plant, Utah 

may not now extract such sources from the program without nullifying its previous 

“better than BART” determination and the legal underpinnings for the 309 Program 

approval. 

Further, if Utah’s proposed omission of the Carbon Plant from the 309 Program 

were permissible, there would be nothing to stop Utah and the other states participating in 

the Program from removing other “smaller, non-BART sources” from the Program. The 

result would strip the 309 Program of its justification under the Regional Haze 

regulations. Such maneuverings would also undermine the essence of the regional haze 

program to compel reasonable progress towards clear skies and place achievement of the 

natural conditions goal out of reach. 

4. EPA’s Regional Haze Regulations prohibit Utah’s proposed emission 

reduction accounting proposal. 

Section 309 of the Regional Haze regulations establishes the rules for the 

accounting of SO2 emissions under the SO2 Backstop Trading Program. 40 C.F.R. 

§51.309. More specifically, the regional haze regulations state that Utah’s 309 plan 

“must include provisions requiring the monitoring, recordkeeping, and annual reporting 

of actual stationary source SO2 emissions within the State.” 40 C.F.R. 

§51.309(d)(4)(iii). Utah’s proposed EC SIP would violate this provision by arbitrarily 

including over 8,000 tons of SO2 emissions from the Carbon plant in future inventory 

reports, when in fact the actual emissions from the Carbon plant from 2016-2018 will be 

zero. Thus, Utah’s proposed EC SIP violates the mandatory requirement to report 

“actual stationary source SO2 emissions within the State.” The requirement to use 

“actual emissions” is repeated throughout the 309 regulations. See i.e, 40 C.F.R. 

§51.309(d)(4)(i) (“[c]ompliance with the 2018 milestones shall be measured by 

comparing actual emissions from the year 2018 with the 2018 milestone”)(emphasis 

added). Since the regional haze regulations specifically prohibit Utah’s proposed 

accounting proposal, the Utah Air Quality Board may not adopt the State’s unlawful EC 

SIP amendments.
5

5. UDAQ’s delay until March 2018 to revise its SIPs is arbitrary and 

capricious.

Utah’s proposed EC SIP purports to resolve the “double counting” of SO2 

emission reductions from the Carbon plant in both the Utah RH SO2 SIP and the EPApending RH NOx/PM SIP. However, Utah’s proposed EC SIP fails to resolve anything 

but instead unlawfully delays agency action until 2018, at the soonest. 

More specifically, Utah’s proposed EC SIP claims it will “as necessary” revise its 

RH SO2 SIP (emphasis added). Additionally, Utah vaguely asserts “[o]ther applicable 

provisions that may be identified in the future will be amended as well.” Utah’s use of 

vague language renders the EC SIP deficient because Utah it is neither “enforceable” nor 

is there an adequate “commitment” to resolve current obligations or the double counting 

issue.

Further, Utah’s EC SIP proposes to delay resolving the SIP discrepancies until 

2018. Utah’s proposed three-year delay to resolve the double counting issue is arbitrary 

and capricious. Any amendments to the SO2 and NOx RH SIP must occur now, not in 

three years. Otherwise, the Conservation Organizations are prevented from fully 

evaluating whether Utah’s proposed SIP amendments comply with the law and are 

consistent with the regional haze program. The EC SIP fails to explain why Utah cannot 

immediately amend its SO2 and NOx SIP and present the actual SIP amendment 

language for consideration in the EC SIP. As such, Utah’s EC SIP is woefully deficient 

and should not be adopted by the Utah Air Quality Board.

6. UDAQ’s EC SIP amendments create irreconcilable accounting 

methodologies among the three-state Western Backstop Trading 

Program.

Utah’s proposed EC SIP ignores that there are two other states participating in the 

SO2 Western Backstop Trading Program, namely Wyoming and New Mexico. All states 

in the Western Backstop Trading Program must use the same inventory methodology. 

Indeed, Section 309 specifically recognizes that, “...all States in the program [must] use 

the same methodology.” 40 C.F.R. §51.309(d)(4)(i). While Utah’s EC SIP makes vague 

promises to resolve its SIP discrepancies by 2018, it fails to mandate similar changes to 

the Wyoming and New Mexico SO2 SIPs. Nothing in the Utah EC SIP prevents 

Wyoming and New Mexico from counting the Carbon SO2 emission reductions in their 

future annual milestone reports. Likewise, nothing in the EC SIP requires Wyoming or 

New Mexico to revise their SO2 SIPs to discount the Carbon SO2 emission reductions. 

Thus, Utah’s EC SIP does little to resolve the problems created by their unlawful 

accounting proposal. Instead, the EC SIP creates more problems than it solves. The Utah 

Air Quality Board should not adopt Utah’s EC SIP because it will result in irreconcilable 

inventory accounting methodologies among the three participating states. 
6

Conclusion

The undersigned Conservation Organizations request that the Utah Air Quality 

Board reject the proposed EC SIP and instead direct the Air Quality Division to impose 

stringent NOx emission limits and SCR controls at Hunter and Huntington Units 1 and 2 

as required by the regional haze BART program.

Sincerely,

Matt Pacenza

Executive Director

HEAL Utah

Stephanie Kodish

National Parks Conservation Association

Gloria Smith

Sierra Club

Shannon Anderson

Powder River Basin Resource Council

Mike Eisenfeld

San Juan Citizens Alliance 

cc: Shaun McGrath, EPA Region 8 Administrator

 Janet McCabe, EPA Acting Assistant Administrator, Office of Air and 

Radiation

 Susan Johnson, National Park Service, Air Resources Division, Chief, Policy, 

Planning, and Permit Review
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 8 

1595 Wynkoop Street 

Denver, CO 80202-1129 

Phone 800-227-8917 

www.epa.gov/region080 

Ref: 8P-AR 

Mr. Bryce Bird 

Director, Division of Air Quality 

Utah Department of Environmental Quality 

P.O. Box 144820 

Salt Lake City, Utah 84114-4820 

SEP 0 8 2015 

Re: EPA Region 8 Comments on Utah's July 23, 2015 Draft Regional Haze SIP Revision 

Dear Mr. Bird: 

The Environmental Protection Agency has completed a preliminary review of Utah's July 2015 draft 

Regional Haze State Implementation Plan (SIP) and related documents, as provided by the state's 

July 31, 2015 automated email notification of air quality rulemaking actions. The state's SIP proposes to 

provide an enforceable commitment to ensure proper accounting of sulfur dioxide emissions from 

PacifiCorp's Carbon power plant. Our comments, which are detailed below, focus on the SIP narrative 

in Section XX, Part N. 

We understand that you intend to consider and respond to all comments received on this public comment 

version before finalizing the documents. Please note that we will only come to a final conclusion 

regarding the regional haze program for Utah when we take action on the program through our own 

public notice-and-comment rulemaking. 

Comments: Section XX, Part N 

Enforceable Commitments for the Utah Regional Haze SIP 

1. Paragraph N .1: There appears to be a typographical error in the third sentence which should read, 

"The resulting combined annual emissions ofNOx, S02 and PM will be 2,876 tons lower than 

the most stringent BART controls." 

2. Paragraph N.2: Please explain in more detail how these commitments address limited portions in 

each of the required SIP programs, including a basis for characterizing the amounts as limited. 

Additionally, please explain the derivation of any emissions figures referenced. For example, it is 

unclear how the figure of 42,016 tons of S02 and NOx emissions reductions was derived. 

*Printed on Recycled Paper 
Thank you for the opportunity to work with you and your staff during the review of this public comment 

version of the draft regional haze BART assessment and enforceable commitment. If you have any 

questions on the EPA's comments, please contact me, or your staff may contact Gail Fallon at 

(303) 312-6281. 

cc: Mr. Jay Baker 

Environmental Scientist, 

Utah Division of Air Quality 

Ms. Patricia Brewer 

Sincerely, 

GYJ-{ 

Carl Daly, Director 

Air Program 

Environmental Protection Specialist, National Park Service, 

United States Department of Interior 

Mr. Tim Allen 

Meteorologist, Branch of Air and Water Resources, 

United States Fish and Wildlife Service 

Mr. Bret Anderson 

National Atmospheric Modeling/Regional Haze Coordinator, 

United States Forest Service 

2