S. HRG. 115–266 

COOPERATIVE FEDERALISM UNDER THE CLEAN 

AIR ACT: STATE PERSPECTIVES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CLEAN AIR 

AND NUCLEAR SAFETY 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

APRIL 10, 2018 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.govinfo.gov 

COOPERATIVE FEDERALISM UNDER THE CLEAN AIR ACT: STATE PERSPECTIVES 

U.S. GOVERNMENT PUBLISHING OFFICE

30–463 PDF WASHINGTON : 2018

S. HRG. 115–266 

COOPERATIVE FEDERALISM UNDER THE CLEAN 

AIR ACT: STATE PERSPECTIVES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CLEAN AIR 

AND NUCLEAR SAFETY 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

APRIL 10, 2018 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.govinfo.gov 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JOHN BARRASSO, Wyoming, Chairman 

JAMES M. INHOFE, Oklahoma 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

MIKE ROUNDS, South Dakota 

JONI ERNST, Iowa 

DAN SULLIVAN, Alaska 

RICHARD SHELBY, Alabama 

THOMAS R. CARPER, Delaware, 

Ranking Member 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

CHRIS VAN HOLLEN, Maryland 

RICHARD M. RUSSELL, Majority Staff Director 

GABRIELLE BATKIN, Minority Staff Director 

SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR SAFETY

SHELLEY MOORE CAPITO, West Virginia, Chairman 

JAMES M. INHOFE, Oklahoma 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

JONI ERNST, Iowa 

RICHARD SHELBY, Alabama 

JOHN BARRASSO, Wyoming (ex officio) 

SHELDON WHITEHOUSE, Rhode Island, 

Ranking Member 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

THOMAS R. CARPER, Delaware (ex officio) 

(III) 

C O N T E N T S 

Page 

APRIL 10, 2018 

OPENING STATEMENTS 

Capito, Hon. Shelley Moore, U.S. Senator from the State of West Virginia ...... 1 

Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode Island ......... 3 

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware, prepared 

statement .............................................................................................................. 6 

WITNESSES 

Vehr, Nancy, Administrator, Division of Air Quality, Wyoming Department 

of Environmental Quality .................................................................................... 7 

Prepared statement .......................................................................................... 9 

Responses to additional questions from: 

Senator Barrasso ....................................................................................... 31 

Senator Carper .......................................................................................... 32 

Senator Whitehouse .................................................................................. 34 

Alteri, Sean, Director, Division of Air Quality, Kentucky Department for 

Environmental Protection ................................................................................... 36 

Prepared statement .......................................................................................... 38 

Responses to additional questions from: 

Senator Barrasso ....................................................................................... 46 

Senator Carper .......................................................................................... 49 

Senator Whitehouse .................................................................................. 51 

Baker, Toby, Commissioner, Texas Commission on Environmental Quality ..... 53 

Prepared statement .......................................................................................... 56 

Responses to additional questions from: 

Senator Barrasso ....................................................................................... 60 

Senator Carper .......................................................................................... 64 

Senator Whitehouse .................................................................................. 68 

Rodriguez, Matthew, California Secretary for Environmental Protection, California Environmental Protection Agency ........................................................... 73 

Prepared statement .......................................................................................... 76 

Responses to additional questions from: 

Senator Carper .......................................................................................... 84 

Senator Markey ......................................................................................... 91 

Senator Whitehouse .................................................................................. 93 

Garvin, Shawn, Secretary, Delaware Department of Natural Resources and 

Environmental Control ........................................................................................ 96 

Prepared statement .......................................................................................... 98 

Responses to additional questions from: 

Senator Carper .......................................................................................... 102 

Senator Markey ......................................................................................... 112 

Senator Whitehouse .................................................................................. 115 

ADDITIONAL MATERIAL 

Letters: 

From Senators Barrasso and Capito to Hon. Scott Pruitt, Administrator, 

Environmental Protection Agency, January 9, 2018 .................................. 254 

From Senators Barrasso and Capito et al. to Administrator Pruitt, January 12, 2018 ................................................................................................... 255 

Page

IV 

—Continued 

From Senator Barrasso to Hon. Scott Pruitt, Administrator, Environmental Protection Agency, January 19, 2018 ............................................. 257 

From William L. Wehrum, Assistant Administrator, Environmental Protection Agency, to Senator Barrasso, January 29, 2018 ............................ 268 

From William L. Wehrum, Assistant Administrator, Environmental Protection Agency, to Senator Barrasso, February 1, 2018 ............................ 270 

From the American Association of State Highway and Transportation 

Officials to Hon. Scott Pruitt, Office of the Administrator, U.S. Environmental Protection Agency, March 16, 2018 ................................................ 272 

From the Association of Air Pollution Control Agencies to Administrator 

Scott Pruitt, U.S. Environmental Protection Agency, September 15, 

2017 ................................................................................................................ 276 

From the Association of Air Pollution Control Agencies to Administrator 

Scott Pruitt, U.S. Environmental Protection Agency, October 31, 2017 .. 287 

From the Atlanta Regional Commission to Hon. Scott Pruitt, Office of 

the Administrator, U.S. Environmental Protection Agency, March 8, 

2018 ................................................................................................................ 291 

From the Western Governors’ Association to Senators Capito and Whitehouse, April 9, 2018 ...................................................................................... 293 

Press release, Barrasso Statement on EPA Advisory Committee Selection 

of Wyoming’s Cara Keslar, November 3, 2017 .................................................. 308 

Presidential Memorandum for the Administrator of the Environmental Protection Agency, April 12, 2018 ............................................................................ 310 

Report, the Association of Air Pollution Control Agencies, The State of Regulatory Reform, Navigating State Perspectives on Clean Air Act Regulations 

Under Executive Order 13777, July 2017 .......................................................... 316 

Report, Texas Department of Transportation, Targeted Transportation Conformity Reform ..................................................................................................... 332 

Oral Argument Held September 14, 2017, Decision Issued February 16, 2018. 

Case No. 15–1123 (consolidated with 15–1115). In the United States Court 

of Appeals for the District of Columbia Circuit. Sierra Club, et al., Petitioners, v. United States Environmental Protection Agency, et al., Respondents. Petition for Panel Rehearing by Respondents the United States Environmental Protection Agency, et al .................................................................... 347 

(1) 

COOPERATIVE FEDERALISM UNDER 

THE CLEAN AIR ACT: STATE PERSPECTIVES 

TUESDAY, APRIL 10, 2018 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR SAFETY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:03 a.m. in room 

406, Dirksen Senate Building, Hon. Shelley Moore Capito (Chairwoman of the Subcommittee) presiding. 

Present: Senators Capito, Inhofe, Boozman, Wicker, Fischer, 

Ernst, Whitehouse, Carper, Gillibrand, Markey, and Barrasso. 

OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO, 

U.S. SENATOR FROM THE STATE OF WEST VIRGINIA 

Senator CAPITO. I want to thank everybody for being here today. 

I apologize for getting started a couple minutes late. 

This hearing of the Clean Air and Nuclear Safety Subcommittee 

is called to order. 

I will begin by recognizing myself for a brief opening statement 

before turning over the floor to the Ranking Member, Senator 

Whitehouse, for 5 minutes. Then we will hear from our panel of expert witnesses. 

I will recognize myself for 5 minutes. 

The concept of cooperative federalism is enshrined in all of our 

major environmental statutes. The Clean Air Act is no exception. 

Previous Congresses realized that environmental preservation and 

its importance to human health, the economy, and the public’s enjoyment of our country’s national heritage is the responsibility of 

government at every level. 

Predecessors also recognized that different levels of government 

should have different responsibilities. Not every aspect of our environmental policy can or should be dictated from here in Washington. 

The EPA lacks the expertise and the capacity to conduct oversight on our ecologically and industrially diverse country. The 

EPA’s role must be to dutifully implement environmental laws as 

crafted by Congress and then to collaborate and support our States 

with matters within our jurisdiction. 

The States know their environmental and economic opportunities 

and challenges better than anyone else. The system has clearly 

worked. Even without the implementation of the Clean Power Plan, 

U.S. carbon dioxide emissions peaked in 2005. Since then we have 

2 

seen a decline in carbon emissions of 12.4 percent in absolute 

terms and 19.9 percent on a per capita basis. 

These reductions have been led by the private sector seeking 

greater efficiencies to lower costs for their consumers and not by 

government mandates. Since 2000 the U.S. has reduced its carbon 

footprint by greater tonnage than any other country. 

According to the EPA, since 1970 national concentrations of air 

pollutants have been reduced by 85 percent for lead, 84 percent for 

carbon monoxide, 67 percent for sulfur dioxide, 60 percent for nitrogen dioxide, 37 percent for fine particulate matter, and 69 percent 

for coarse particulate matter. These achievements have reduced 

mortality rates and health care expenditures due to air pollution, 

benefited agriculture by improving yields, and helped to preserve 

habitats and threatened species. 

Economic growth has continued even as emissions have declined. 

Setting achievable, consensus based standards in consultation with 

industry, State, local, and tribal governments has decoupled emissions—and for the first time in recent years, energy consumption 

itself—from economic growth. In 1970 our GDP was $1.09 trillion. Today, it is $19.74 trillion. 

Even with all the emission reductions, clearly the model has 

worked. Yet it has been under pressure. 

The Obama administration upended the consensus based model 

for setting environmental regulations. We had several hearings 

that flushed out this. The EPA imposed standards across a host of 

industries, especially the power sector, that were unachievable 

with commercially available technologies. 

Their economic analysis routinely overstated the benefits and understated the economic costs associated with the regulations. I have 

heard from my constituents in the public and private sector in my 

State of West Virginia that their comments were routinely ignored. 

Finally, underscored by the Clean Power Plan, the EPA routinely 

overstepped its jurisdiction. For its part, the CPP attempted to regulate ‘‘beyond the fence line,’’ directing States to impose carbon 

taxes on cap and trade structures to achieve emissions targets that 

could not otherwise be met. 

This is why the EPA never provided model State implementation 

plans for the Clean Power Plan. The data simply could not be tortured enough to make its implementation by the States legal, or 

importantly, feasible. 

During all of this State clean air regulators, like those before us 

today, were sidelined. Half the States sued, and it is no wonder 

they did. 

I hope we can work across the aisle with every level of government and private industry to continue the good work we have set 

in place. If we follow the law, pursue goals achievable with modern 

technology, and control methods, and collaborate, we can continue 

to grow the economy while reducing emissions. 

We must also never lose sight of the fact that the American 

dream of economic prosperity is what provided our citizenry with 

two centuries of continuous advancements in health and development, which in itself has enabled our modern focus on environmental improvement. Far from zero-sum, economic and environmental benefits track together. 

3 

I look forward to hearing from our State experts from across the 

country about their ideas on how to continue this cycle based on 

their experiences engaging with the EPA. 

I will now recognize Ranking Member Whitehouse for his opening statement. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you very much, Senator Capito. 

I welcome the witnesses here today. 

We are here to talk about cooperative federalism, two words 

which have become something of a mantra for EPA Administrator 

Scott Pruitt. They are among his most trusted talking points, right 

up there with another favorite catch phrase, ‘‘back to basics.’’ 

What does cooperative federalism really mean? Particularly, 

what does it mean to Administrator Pruitt? 

Cooperative federalism should mean that EPA and the States 

work together to reduce pollution. Reducing pollution involves 

doing scientific analyses, gathering data, writing rules, setting targets, and enforcing the rules and targets. This work can—and 

should—be done together by EPA and the States. 

It used to be, but that is not what Scott Pruitt means by cooperative federalism. The Pruitt cooperative federalism means having 

EPA do less to reduce pollution and hand over more of the work 

to the States, all while proposing fewer financial resources to the 

States to do this work. 

If some States are less interested in reducing pollution or do not 

have the resources to develop and enforce rules limiting pollution, 

then so much the better because you see, that is Pruitt’s goal here. 

Cooperative federalism is code for EPA and some States walking 

away from their core mission of protecting human health and the 

environment. 

The proof is that at any time a State takes strong action to reduce pollution, Pruitt’s EPA either opposes the initiative or slow 

walks it. Pruitt’s version of cooperative federalism is a one-way 

street toward more pollution. States are encouraged to take the 

lead in reducing pollution so long as they do not actually try to reduce pollution. 

Pruitt’s recent decision to water down corporate average fuel 

economy standards, the CAFE ́ standards, is an example of how cooperative federalism, under Pruitt, really works. These CAFE ́

standards were negotiated in 2012 by EPA, California, and the 

auto industry. All parties agreed to these standards, which are estimated to save consumers $1.7 trillion at the pump, an average of 

$8,000 over the life of a car purchased in 2025, and of course, to 

reduce carbon emissions by 6 billion metric tons. 

Why did Pruitt decide to roll back those agreed to CAFE ́ standards? Not because California asked him to, but because industry 

did. Is it cooperative federalism to ignore the States and do industry’s bidding? 

When you get beyond the rhetoric, Pruitt is not really interested 

in cooperative with States. His real interest is in cooperating with 

corporations which have bankrolled his entire political career. You 

might actually call it cooperative corporatism. 

4 

Now that California, Rhode Island, Delaware, and many of the 

other 10 States and the District of Columbia that follow California 

emission standards have objected to his decision to water down the 

CAFE ́ standards, Pruitt has suggested that he may revoke the 

waiver granted to California under the Clean Air Act that allows 

it to set its own emissions standards. How is that for cooperation? 

Pruitt’s desire to centralize decisionmaking in his own hands is 

not limited only to the Clean Air Act. He recently announced that 

all decisions relating to determining whether a project has a significant environmental impact on waterways will be made by him. 

So much for local control and cooperative federalism. 

My home State of Rhode Island has a long coastline that is particularly vulnerable to sea level rise. The CAFE ́ standards represent an important part of our efforts to combat climate change, 

which is responsible for sea level rise. 

The Clean Power Plan is also critical to reducing the carbon 

emissions driving climate change. Pruitt is trying to repeal that 

too. Do you think he consulted with Rhode Island officials or the 

officials in any coastal State on repealing the Clean Power Plan? 

If you need any further proof that Scott Pruitt’s cooperative federalism is a one-way street sham, must look at his proposed budget 

for fiscal year 2019. He proposes cutting grants to the States for 

clean air programs by over $160 million. Some programs he eliminates entirely. 

Rhode Island’s Department of Environmental Management re- ceives about $10 million a year in grants from EPA. About $2.4 

million of this goes to clean air programs. How does Pruitt expect 

States to step up and lead on protecting clean air when he tries 

to cut the money they receive to do this work? 

The answer is, he does not. Scott Pruitt’s mission at EPA is cooperative corporatism, to serve the interests of the industry that has 

always backed him. You see this in decision after decision where 

State input is ignored. You see this in industry cronies installed at 

EPA. 

Scott Pruitt has sullied the doctrine of cooperative federalism 

just as his disregard for EPA’s mission has sullied the agency and 

his actions stand to sully our environment. 

I salute States like Rhode Island, California, and Delaware that 

are working so hard to protect our environment. We do it better 

with an effective partner in the EPA. It is time for EPA to get serious about protecting the environment and public health. That, after 

all, is its true mission. 

Thank you, Madam Chair. 

Senator CAPITO. Thank you, Senator. 

To begin our introductions, Chairman Barrasso is here. 

I would ask if you would like to introduce our witness from Wyoming. 

Senator BARRASSO. Thank you very much, Madam Chairman. 

I would, and I am so pleased to introduce Nancy Vehr, who 

serves as the Air Quality Administrator for the Wyoming Department of Air Quality. 

Administrator Vehr has led Wyoming’s efforts to improve air 

quality and implement the Clean Air Act since 2015. Before serving 

as Air Quality Administrator she worked at the Wyoming Attorney 

5 

General’s Office. In that office, she served as the Assistant Attorney General and represented the State’s Division of Air Quality. 

Administrator Vehr has also had broad experience in the private 

sector where she handled a wide variety of civil and environmental 

matters. Her wealth of experience with the Clean Air Act and her 

deep familiarity of Wyoming have served the State very well, for 

which we are very grateful. 

Due to our unique location, geography, and natural resources, 

Wyoming needs flexibility to implement the Clean Air Act. I look 

forward to hearing your testimony today and listening as you explain the challenges faced by the State of Wyoming in implementing the Clean Air Act and how the EPA can better partner 

with States—specifically with the State of Wyoming—to solve these 

challenges. 

Welcome. Thank you for being here, and thank you for your willingness to testify. 

Thank you, Madam Chairman. 

Senator CAPITO. Thank you. 

Now, I would like to recognize our Ranking Member, Senator 

Carper, if he would like to make an introduction. 

Senator CARPER. I would. Thank you, Madam Chair. 

This is like ‘‘Welcome Back, Kotter,’’ but welcome back, Shawn, 

to the Environment and Public Works Committee. We are happy 

you could join us. 

Shawn and I spent some time trying to get here this morning on 

a train that was not really cooperative. Thank you for sticking with 

it and making it down here. 

Shawn, did you ever work for Joe Biden? 

Mr. GARVIN. I did. 

Senator CARPER. How long? 

Mr. GARVIN. Two years. 

Senator CARPER. Two years. Would you say they were the 

happiest 2 years of your life? 

Mr. GARVIN. I think the 20 years I have been married to my wife. 

Senator CARPER. That’s right. You mean the mother of your son, 

Dillon, right? 

Mr. GARVIN. Yes. 

Senator CARPER. Is he in high school or college? 

Mr. GARVIN. High school. 

Senator CARPER. Going to college soon? 

Mr. GARVIN. Soon. 

Senator CARPER. So you worked for Joe Biden and kept him out 

of trouble for at least 2 years, and for your efforts, you ended up 

as EPA Administrator for Region III for 8 years. 

After that, you ended up as a Secretary to the Department of 

Natural Resources and Environmental Control. 

Is there anyone in the room who also previously held that position? Who would that be? Christophe Tulou was the Secretary for 

my 8 years as Governor. 

We have known Shawn for a long time, admire him, and have 

great affection for him and his family. We are happy you are with 

us today. Thank you for your continued service not just to the people of Delaware but to the people of our country. Give your family 

our best. 

6 

Thank you for joining us. 

Senator CAPITO. Thank you, Senator Carper. 

I will introduce the rest of the witness panel, and then we will 

begin. 

In addition to Ms. Vehr and Mr. Garvin, we have Mr. Sean 

Alteri, who serves as the Director of the Division for Air Quality, 

Kentucky Energy and Environment Cabinet, Department for Environmental Protection. That is a long title. 

Mr. Alteri has previously served as the President of the Association of Air Pollution Control Agencies and continues to play a leadership role in that organization. 

Welcome. 

We also have Mr. Toby Baker, who is a Commissioner of the 

Texas Commission on Environmental Quality, first nominated by 

then Governor Rick Perry, in 2012. 

Welcome. 

We also have Mr. Matthew Rodriguez, who serves as California’s 

Secretary for Environmental Protection. 

I want to thank all of the witnesses for being here. I will now 

recognize our witnesses for their opening statements. As a reminder, your full written testimony has been submitted for the 

hearing record. 

Ms. Vehr, I would recognize you for 5 minutes. 

Senator CARPER. Madam Chairman, may I ask unanimous consent that my statement for today be inserted at an appropriate 

place in the hearing record. 

Thank you so much. 

Senator CAPITO. Without objection. 

Senator CARPER. Thank you so much. 

[The prepared statement of Senator Carper follows:] 

STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM THE STATE OF DELAWARE

Thank you, Madam Chairman, for convening this timely hearing, and thank you 

to our witnesses for joining us today. 

The Clean Air Act requires EPA to partner with States to address air pollution, 

especially air pollution that crosses State borders. The Act ensures all States are 

good neighbors when it comes to clean air. 

These protections are critical for my home State of Delaware because we are located at the end of what I call ‘‘America’s tailpipe.’’ This means other States’ dirty 

emissions from cars and power plants drift east into our State. This cross-State air 

pollution makes it impossible for Delaware to meet national health air pollution 

standards without the cooperation of upwind States and the EPA. 

EPA Administrator Pruitt repeatedly insists that he is committed to cooperative 

federalism and that the EPA ‘‘needs to work together with the States to achieve better outcomes.’’ However, like most things pertaining to this EPA Administrator, 

Pruitt says one thing, but does another when it comes to cooperative federalism. 

Instead of working with States to create solutions, Pruitt’s EPA has made it harder for States, especially downwind States, to meet clean air goals. For example, Pruitt’s EPA has rejected requests from Northeast States to expand State coordination 

between upwind and downwind States to address regional ozone pollution. 

At the same time Pruitt’s EPA has failed to answer State petitions—four of which 

are from the State of Delaware—that ask EPA to require upwind power plants to 

install, or consistently operate already installed, pollution controls. 

Pruitt’s EPA has also failed to meet Clean Air Act deadlines to designate who is 

living in unhealthy ozone areas, so States can take further actions to protect public 

health. 

Furthermore, Pruitt’s EPA is cutting State air program funding, weakening enforcement, and rolling back critical clean air protections that will further exacerbate 

the ongoing air pollution confronting our States. 

7 

For instance, just 2 weeks ago Administrator Pruitt announced that he plans to 

weaken the greenhouse gas tailpipe standards that had been supported by the auto 

industry, environmental organizations, and the State of California. While I believe 

that a ‘‘win-win’’ exists that could provide the automobile industry with regulatory 

certainty in exchange for assuring California that advanced technology vehicles will 

continue to be incorporated into the fleet well into the future, serious negotiations 

to achieve that outcome have not yet even begun. ‘‘Cooperative federalism’’ means 

actually cooperating, and that is simply not what I have seen Administrator Pruitt 

do. 

So we have a situation in which Pruitt’s EPA is denying downwind States’ efforts 

to hold upwind States accountable for their air pollution contributions, expanding 

the air pollution that crosses State borders and taking away critical financial tools 

and programs to help States address pollution. 

Cooperative federalism means cooperation between the Federal Government and 

the States to solve problems. As we will hear today from several of our witnesses, 

many States are not finding much cooperation with this administration, and instead, are finding more problems. 

STATEMENT OF NANCY VEHR, ADMINISTRATOR, DIVISION OF 

AIR QUALITY, WYOMING DEPARTMENT OF ENVIRONMENTAL 

QUALITY 

Ms. VEHR. Good morning, Chairman Capito, Ranking Member 

Whitehouse, and members of the Subcommittee. 

I have the honor and pleasure of serving the great State of Wyoming as the Administrator for the Air Quality Division. Our department is an active member of the Environmental Council of 

States, ECOS, with several of the other presenters also serving. 

Our Division is a member of the Association of Air Pollution Control Agencies where I serve as Vice President and the Western 

States Air Resource Council, WESTAR, where I also serve as Vice 

President. While my testimony may reference these organizations, 

I am not here to testify on their behalf. 

In order to put my remarks in context, I would like to share a 

few facts about Wyoming to help you get to know who we are. Wyoming has been blessed with amazing and abundant natural resources. We are home to Yellowstone and Grand Teton National 

Parks and other special and scenic places that some of you may 

have visited. 

Our abundant mineral resources provide the Nation, our State, 

and our citizens with revenue and jobs. Our leading industries are 

energy, tourism, and agriculture. We are the ninth largest State, 

roughly 93 times the size of Rhode Island. Our largest county is 

roughly four times as large as Delaware. The Federal Government 

owns and manages about half the land in Wyoming. 

We are also the least populous State, not quite 600,000 of us, in 

small, rural communities or in the large expanses in between. Only 

nine communities in Wyoming have more than 10,000 people each. 

Wyoming wants and is working toward improved relationships 

and interactions with the EPA. It is Wyoming’s experience that 

EPA shares this desire and is doing the same. Why are improvements to cooperative federalism so important? It is because we 

want better outcomes and air quality improvements. 

My testimony highlights some of the progress made in the recalibration of State and Federal roles, which leads to more effective 

air quality environmental management at lower cost. My written 

testimony highlights some of these examples. My remarks today 

touch on one—regional haze. 

8 

With respect to cooperative federalism, EPA sets the deadlines 

and standards. States develop plans with implementation strategies to meet those deadlines and standards. When that process 

works, the result is improved air quality at lower cost. 

Wyoming treasures her magnificent resources and vistas. In the 

1977 Clean Air Act amendments, Congress established a goal to restore visibility in national parks and wilderness areas to natural 

conditions. 

Some 20 years later EPA adopted the Regional Haze Rule. The 

rule mandates that States submit plans to reduce regional haze 

emissions. However, right in the midst of the regional haze plan 

submittal and approval timeframes, the cooperative federalism 

process failed. 

Instead of approving innovative State plans to improve air quality, EPA oftentimes failed to act or imposed a one size fits all Federal plan on a State. Wyoming is one of those States in which EPA 

imposed a regional haze Federal plan that came with a much higher price tag and no added visibility benefit as compared to the 

State’s plan. 

The work involved to develop and submit a State plan is time 

consuming and costly. For regional haze, the process in this first 

round took more than a decade and cost the State hundreds of 

thousands of dollars on the technical work alone. 

Wyoming’s plan achieved significant emission reductions, includ- ing almost 10,000 tons of nitrogen oxides by installing $100 million 

worth of pollution controls. Wyoming’s plan demonstrated that Wyoming would be on track to meet its visibility improvement 

progress goals. 

Instead of approving Wyoming’s plan, EPA imposed its own Fed- eral plan. EPA’s plan had a price tag of $600 million but did not 

meaningfully improve visibility. These issues are now tied up in 

litigation. 

The challenges of the second round of regional haze plans are 

due in a few years. Federal and State collaboration is underway in 

that process. Wyoming remains hopeful that those collaborative efforts will continue and be fully implemented. 

If so, the result will be continued improvement and progress toward meeting the Clean Air Act visibility goals at a cost and resource savings to Wyoming’s citizens. 

Thank you to the Committee for inviting Wyoming and listening 

to the department’s perspective on cooperative federalism under 

the Clean Air Act. 

Thank you. 

[The prepared statement of Ms. Vehr follows:] 

9 


30463.001

Nancy Vehr 

Administrator; Division of Air Quality 

Wyoming Department of Environmental Quality 

Cheyenne, WY 

Nancy has been the Air Quality Administrator for the Wyoming 

Department of Environmental Quality (DEQ) since November 2015, 

when she returned to public service after having worked for a couple 

of years as special counsel for a Wyoming law firm. Her first career 

as a Nurse spanned fifteen years following the receipt of her 

Bachelors of Science in Nursing from Creighton University in Omaha, Nebraska. 

Nancy launched into her second career after obtaining her Juris Doctorate from the 

University of Wyoming, College of Law, in 1999. Following graduation, she joined the 

Wyoming Attorney General's Office where she represented the Wyoming Department of 

Environmental Quality, Air Quality Division in all regulatory and litigation matters. She is 

truly humbled and honored every day to serve the people of the great State of 

Wyoming. 
10 


30463.002

Testimony of Nancy E. Vehr, Air Quality Division Administrator 

Wyoming Department of Environmental Quality 

to the 

U.S. Senate Committee on Environment and Public Works 

Subcommittee on Clean Air and Nuclear Safety 

Hearing on: "Cooperative Federalism Under the Clean Air Act: State Perspectives" 

Tuesday, April10, 2018, 10:00 a.m. 

Room 406 ofthe Dirksen Senate Office Building 

Good morning Senator Barrasso, Chairman Capito, Ranking Member Whitehouse, and 

members of the Subcommittee. My name is Nancy Vehr. I have the honor and pleasure of 

serving the great State of Wyoming as the Administrator for the Wyoming Department of 

Environmental Quality, Air Quality Division. Our Division is responsible for implementing the 

Clean Air Act and the Air Quality provisions of Wyoming's Environmental Quality Act. Our 

Department is an active member of the Environmental Council of States (ECOS), with our 

Director currently serving as President. Our Division is a member of one national and one 

regional air quality organization: the Association of Air Pollution Control Agencies (AAPCA), 

where I serve as Vice-President; and the Western States Air Resource Council (WEST AR) 

where I also serve as Vice-President. While my testimony may reference these organizations, I 

am not here to testify on behalf of those organizations. I thank the subcommittee for inviting 

Wyoming and listening to the Department's perspective on Cooperative Federalism under the 

Clean Air Act. 
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My testimony highlights some of the progress that has been made in the recalibration of 

state and federal roles which leads to more effective air quality environmental management at a 

lower cost. Some of the positive examples of cooperative federalism include: disaster planning; 

increased diverse state participation on EPA Science Advisory Boards - specifically the EPA 

Board of Scientific Counselors (BOSC), subcommittee on air and energy; and £-Enterprise for 

the Environment. 

My testimony also draws attention to some of the areas that still have room for 

improvement- where continued advancements in cooperative federalism are still needed. A few 

of these areas include: Regional Haze; Exceptional Events; and State Implementation Planning. 

Introduction to Wyoming: 

In order to place my testimony into context for the subcommittee, I would like to share a 

few of the key relevant characteristics of Wyoming. 

Size: Wyoming is the 9th largest state covering 97,814 square miles ofland, yet is the 

lease populous of any state at about 584,000 citizens. To put this into perspective, with respect 

to land, Wyoming is roughly 93 times the size of Rhode Island. However, Wyoming's low 

population density of about six ( 6) people per square mile ranks at 49th in the nation. The size of 

Wyoming's largest county- Sweetwater County- at 10,425 square miles, ranks as the eighth 

largest county in the nation and is roughly four times as large as the entire state of Delaware. 

About half of the land in Wyoming is owned and managed by the federal government. Much of 

Wyoming consists of small rural communities with large expanses in between. In fact, 

Wyoming only has nine "cities" with populations greater than 10,000 people. 

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Elevation: Wyoming's mean elevation of6,700 feet above sea level places us at znd in 

height, with Colorado being the highest. In comparison, the mean elevation of east coast states 

falls under 1, 100 feet. 

Natural Resources: Wyoming has been blessed with amazing and abundant natural 

resources. We are home to Yellowstone and Grand Teton national parks, and other special and 

scenic places. Our abundant mineral resources provide the nation, our State, and her citizens 

with revenue and jobs. Our leading industries are energy, tourism, and agriculture. The energy 

industry is the largest contributor to Wyoming's economy. In 2017, Wyoming ranked 8th in the 

nation for crude oil production, 6th for natural gas, and leads the nation in the production of coal, 

bentonite, and trona. Aggregating the production and export of all fossil-based minerals, 

Wyoming is the number one producer of energy to the nation. In terms of renewable energy, 

Wyoming also ranks high at 15th in the nation for wind energy production. 

Wyoming values the protection of its natural resources. The mission of the Wyoming 

Department of Environmental Quality is: "To protect, conserve and enhance the quality of 

Wyoming's environment for the benefit of current and future generations." As the Department 

and the Air Quality Division carry out this mission, we do so in a balanced marmer- protecting 

our natural resources and providing for responsible energy production. As Governor Mead has 

stated, "It is a false question to ask: Do we want energy production or environmental 

stewardship?" In Wyoming we must have and do both. 

3 
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Cooperative Federalism 

As Wyoming DEQ Director Parfitt noted last year in comment to the House Science, 

Space and Technology, Environment Subcommittee on its "Expanding the Role of States in EPA 

Rulemaking" hearing: 

One of the original foundational concepts established to ensure effective public 

health and environmental outcomes is cooperative federalism. Under this 

arrangement, congress establishes the law, federal agencies implement the law by 

establishing national minimum standards, and the states obtain the authority, 

develop, and implement the programs necessary to achieve or surpass these 

standards. 

*** 

Notwithstanding Congress' original intent, the cooperative relationship shifted 

over time towards the federal government and away from the states. This shift 

resulted in the development of one-size-fits-alllaws, regulations, policies, and 

guidance that overrode legitimate state authority and failed to consider the unique 

geophysical ecological, social, and economic conditions of each state. Mandates, 

directives, and increasingly prescriptive regulations limited state flexibility in 

identifYing priorities, implementing innovated solutions tailored to local 

conditions, and achieving operational efficiencies. This meant that states were 

left to enforce national policies developed without the benefit of any local 

understanding. 

*** 

Wyoming is committed to a strong federal-state relationship and looks forward to 

working with its federal partners in an effective and balanced cooperative 

federalism approach that provides effective environmental and public health 

outcomes. 

Letter, WDEQ Director Parfitt to Science, Space and Technology Committee (May 22, 20 17). 

States such as Wyoming, want an effective relationship and partnership with EPA that 

recognizes states and EPA as co-regulators, co-funders, and partners in a federal environmental 

protection system. See ECOS Resolution 00-1 on Environmental Federalism, March 22, 2018 

(revised). State principles for the roles and functions of states and EPA in cooperative 

federalism, and changes implied by those principles, is reflected in ECOS' "Cooperative 

Federalism 2.0: Achieving and Maintaining a Clean Environment and Protecting Public Health" 

(June 20 17). 

4 
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Examples of Continued Advancements Needed in Cooperative Federalism: 

1) State Implementation Plan Process 

One of the cornerstone measures established by Congress that epitomizes the need for 

functional cooperative federalism is the State Plan process to improve air quality. State Plans 

include regulatory and non-regulatory measures that a State implements to achieve the federal air 

quality standard or objective. 

Under this process, EPA sets state plan submittal deadlines and other plan requirements. 

For example, when EPA revises an ambient standard, it establishes the deadlines by which states 

must submit plans to meet those standards and demonstrate that the state has sufficient resources 

and program infrastructure in place to implement the new standard. When cooperative 

federalism works, EPA communicates early and often with their state counterparts, and timely 

acts. And, states do the same- tailoring plans to meet objectives given the unique characteristics 

and challenges facing the state and its air quality. "Cooperative" federalism results in positive 

air quality outcomes at a lower cost to Wyoming's citizens and industry. 

Over the recent past, however, EPA has shifted that paradigm to the point that many refer 

to it as ''uncooperative" federalism. One reason for this shift is that EPA shifted its "lane" into 

the "lane" historically occupied by states. EPA's "lane-shift" does not improve air quality, or 

allow for innovative measures to address the state's unique characteristics and challenges. 

The Division's experience is that "uncooperative" federalism delays implementation of 

state measures designed to improve air quality. "Uncooperative" federalism brings about 

conflicts, distrust, duplication, delays, unnecessary expenditures, and diversion of resources with 

little to no air quality benefit. Given the level of effort and time that it takes for states to develop 

plans, for EPA to approve plans, and the attendant litigation that oftentimes seems to follow 

5 
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challenging state and or EPA action or inaction; it is not surprising that states, citizens, and 

industrial sources are frustrated and confused. 

State Plan development is a "state-driven air quality planning process."1 Under 

Wyoming's State Plan process, measures are adopted at the state level and then submitted to the 

EPA region for approval. Under state law, public comment and input is a key part of the 

process. What this means, is that Wyoming's citizens and industry have a voice and participate 

' 

in the process at the State level. With that level of input and participation, it is not uncommon 

for the data collection, analysis, rule development, public input, and revision processes at the 

state level to take a year or more. Oftentimes, the process requires the adoption of state laws or 

rules.2 Under "uncooperative" federalism, affected entities must expend resources to comply 

with state rules, while at the same time facing uncertainty as to whether the EPA will disregard 

the state law, move the decision-making marker, and impose a Federal Plan; or simply not act. 

One ofEPA's recent improvements is moving from a paper-based State Plan submittal 

process to an electronic submittal, review, and tracking process referred to as SPeCS (State Plan 

Electronic Collection System). Among the benefits ofEPA's electronic process are time and 

cost savings, and improved communication through information and tracking access. As part of 

EPA's mid-2017 roll-out to states, Wyoming participated in beta testing, and provided comments 

and suggestions to improve the system, and recently began submitting State Plans via SPeCS. 

Wyoming is hopeful that efficiency improvements like this will lead to reduced SIP backlogs and 

timely action on State Plans. 

1 See AAPCA letter to EPAre: Draft FY 2018-2022 EPA Strategic Plan (Docket ID: EPA-HQ-OA-2017-0533) 

(Oct. 31, 2017). 

1 For a flowchart of the Division's rulemaking process, see 

httn:i/dea.wyorning.gov/media/attachments/Air"/o200ualitv/Rule%20Development/Rulemaking%20Process/AODRule-Development Rulemaking-Process-Flowchart.pdf 

6 
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Wyoming has reason to be optimistic given EPA Region 8's action on Wyoming's Plan 

revision for the Sheridan PM1 0 moderate nonattainment area. In that action, EPA acted in ten 

months to determine that the Sheridan, Wyoming, PM1 0 moderate nonattainment area had 

attained the 1987 24-hour PM10 standard; and concurrently redesignated the area to attainment 

and approved Wyoming's Limited Maintenance Plan. 83 Fed. Reg. 14373 (April4, 2018). 

Sheridan had attained the standard almost two decades ago. But as a result of unique set 

of circumstances, no significant exploration of the possibility of redesignation had occurred until 

late 2015. At that time, the Division collaborated with the Region and embarked on the State 

Plan revision process, submitting its Plan revisions to EPA in June, 2017. Seven months later, 

EPA proposed full approval of Wyoming's request to redesignate the Sheridan PM10 moderate 

nonattainment area to attainment and Limited Maintenance Plan. 83 Fed. Reg. 4015 (Jan. 29, 

2018). And last week, 10 months after submittal, EPA approved Wyoming's request. Given the 

EPA timeframe that Wyoming had experienced in previous State Plan submittals, the Region's 

communication with the Division, and timely decision-making are remarkably welcome change, 

confirming improvements to air quality and public health and removing economic impacts that 

result from non-attainment. 

The Division encourages EPA to continue advancements like this as the cooperative 

federalism relationship is rebalanced. 3 The attendant results will benefit states, including 

Wyoming's, air quality and her citizens. 

2) Regional Haze 

Wyoming's citizens treasure the state's magnificent resources and vistas. In the 1977 

Clean Air Act amendments, Congress established a goal to restore visibility in national parks and 

3 See Letter, Western Governors' Association to EPA Asst. Administrator William Wehrum (Feb. 12, 2018) 

providing recommendations for improving air quality policy and regulation in the west. 

7 
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wilderness areas to natural conditions.4 Some twenty years later, EPA adopted the Regional 

Haze Rule. The Rule mandates that states identifY and implement pollution control strategies to 

progress towards ''natural" visibilitT conditions by 2064. With respect to cooperative 

federalism, EPA's Rule set the deadlines and standards. States develop Plans with 

implementation strategies to meet those deadlines and standards. That process worked and 

resulted in improved air quality. 

However, over the past five to ten years, the process failed- some referred to it as 

"uncooperative" federalism -instead of approving innovative state plans to improve air quality, 

EPA often times failed to act or imposed a one-size-fits-all Federal Plan on a state. Wyoming is 

one of those states in which EPA imposed a Regional Haze Federal Plan that came with a much 

higher price tag and no added visibility benefit as compared to the State's Plan. 

Some of the pollutants that contribute to haze include sulfur dioxides, nitrogen oxides, 

and particulate matter. EPA's Regional Haze Rule required states to develop and submit plans to 

reduce regional haze emissions. Wyoming submitted its first plan in 2003, and submitted several 

revisions over the next decade. Wyoming's Plan achieved significant emission reductions 

through implementation of Best Available Retrofit Technology (BART) or better-than-BART 

control strategies. Wyoming's Plan provided for a reduction of nearly 10,000 tons of nitrogen 

oxides that would be achieved by the installation of$100 million in pollution controls. 

Wyoming's Plan demonstrated that Wyoming would be on track to meet its progress goals 

towards improving visibility. 

4 Class I areas include many of the nation's largest National Parks and Wilderness Areas. Wyoming is home to 

seven Class I areas: Bridger Wilderness, Fitzpatrick Wilderness, Grand Teton National Park, North Absaroka 

Wilderness, Teton Wilderness, Washakie Wilderness, and Yellowstone National Park. 

'EPA measures visibility improvement or impairment using a haze index metric known as the "deciview." Each 

unit change in deciview represents a change in perception. The approximate threshold for human perception of this 

change in visibility is at about one full deciview. 

8 
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Wyoming's Regional Haze Progress Report submitted to EPA in November 2017, 

confirms and also demonstrates that visibility has improved and that Wyoming is meeting or 

exceeding its visibility goals. Wyoming, New Mexico, Utah, and Albuquerque/Bernalillo 

County participate in a regional haze sulfur dioxide milestone and backstop trading program. 

The program is a success with actual sulfur dioxide emissions having declined every year since 

2003: 

R ellonal Sulfur Dioxide Emissions and :\IDtstoue Renort Summa ry 

Veer Report..d SO, Emissions 3-Year Milestone 

I (toosl A_..,~~:e (tons) 

2003 1330.679 447,383 

2004 I 337,970 448,259 

2005 304,591 446,903 

2006 279,134 420,194 

2007 420,637 

2008 378398 

2009 143,704 234,903 

2010 131,124 200722 

2011 117,976 200722 

2012 96,246 200,722 

2013 101,381 185,795 

2014 92,533 170,868 

2015 81,454 155,940 

Wyoming's 2017 Regional Haze Progress Report, Table 3.3-1. 

Other visibility impairing pollutant emissions have also decreased: 

9 

Wyoming's 2017 Regional Haze Progress Report, Table 3.3-2. Note, the differences in emissions for fine and 

coarse material is likely due to changes in dust emissions inventory methodology instead of actual emissions. 

See also§ 3.4.3 of Wyoming's Report describing the impact of wildfire smoke on visibility. 
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Not surprisingly, EPA also agrees that visibility improved: 

First Implementation Period: Visibility is Improving 

EPA, Dec. 5, 2017. 

2000·2004 

Visibility (dv) 011 20% most 

impaired days 

2011·2015 

Visibility (dv) 011 20% most 

impaired days 

Sounds like a success story. But, there is more to the story. In 2014, EPA disapproved 

Wyoming's Plan. EPA imposed its own Federal Plan. EPA's Plan had a price-tag of$600 

million dollars but did not meaningfully improve visibility. Wyoming and the affected utilities 

appealed EPA's disapproval and requested the Court stay implementation ofEPA's Federal Plan. 

The Court has stayed implementation. Last year, EPA and one of the utilities agreed to settle. 

The utility agreed to specific "Better than BART" emission reductions and controls. Those 

changes required Wyoming to expend time and resources in order to revise its State Plan, and 

Wyoming recently submitted those changes to EPA for action. 

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The status ofRegional Haze, Round 1- nineteen years after EPA adopted the Regional 

Haze Rule- is reflected on this EPA map: 

Regional Haze: Status of .Actions from First 

.Aj>provl!d (ineludlng CSAPR FIP) .Ful FIP 

liParttalapprova!wf F!P 

The status for Wyoming and eleven other states are reflected on EPA's map in blue as "Partial 

approval w/ FIP." 

On January 10,2017, EPA revised it~ Regional Haze Rule. 82 Fed. Reg. 3078. One of 

the key revisions was to extend the deadline for states to submit their second round of regional 

haze state plans from July 2018 to July 2021. This past fall, EPA made preliminary 2028 

visibility modeling data, results, and other technical information available to help inform round 

two ofthe state plan development process. See Memorandum from Richard A. Wayland, 

Director, Air Quality Assessment Division, EPA Office of Air Quality Plalllling and Standards, 

re: Availability of Modeling Data and Associated Technical Support Document for the EPA's 

Preliminary 2028 Visibility Air Quality Modeling (Oct. 19, 20 17). 

Regional Haze visibility modeling is complex and costly. The inputs and outputs- the 

data alone associated with EPA's "preliminary" 2028 modeling has a total file size of 

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approximately 19 terabytes. 6 That amount of data can only be provided via hard-drive to those 

who request it. And the various hardware option configurations to run the models is also 

expensive, on the nature of$6600/month to $20,800/month.7 

In order to meet the 2021 State Plan submittal deadline, States and their multijurisdictional organizations, such as WEST AR, have already mobilized and started to work on 

gathering the data that will need to be analyzed in order to prepare state plans. The time and cost 

that states must devote to the data collection, analysis and ultimate development of these plans is 

significant. Wyoming estimates that its share of the western regional modeling and analytical 

costs alone may ultimately exceed several hundred thousand dollars. 

However, federal and state collaboration is underway. Wyoming participated in 

WESTAR's December 2017 Regional Haze workshop, with many other states, EPA, and other 

federal agencies also attending. Wyoming remains hopeful that these cooperative federalism 

efforts will continue and be fully implemented. If so, the result will be continued improvement 

and progress meeting the Clean Air Act's visibility goals at a cost and resource savings for 

Wyoming's citizens. 

3) Exceptional Events 

Ambient air quality monitoring data is important as the basis for numerous regulatory 

decisions. However, not all monitoring data may be appropriate to use. For example, when 

"'exceptional' events cause exceedances or violations of the national ambient air quality 

standards (NAAQS) that subsequently affect certain regulatory decisions, the normal planning 

6 According to Wikipedia, "I terabyte of data would require about 1428 CD-ROMs, 212 DVDs or 40 single-layer 

Blu-ray Discs." 

7 AAPCA 2018 Spring Meeting Presentation, Photochemical Grid Modeling 101, Jim Boylan, Manager, Planning 

and Support Program, Georgia EPD- Air Protection Branch (AprilS, 2018). 

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and regulatory process established by the CAA may not be appropriate." See Preamble to EPA 

Final Rule, Treatment of Data Influenced by Exceptional Events. 81 Fed. Reg. 68216 (Oct. 3, 

2016). Therefore, when an "exceptional" event influences the ambient monitored data and 

causes an exceedance or violation of the ambient standard, an air agency can request the 

exclusion of that event-influenced data, and the EPA can agree to exclude that data from use for 

certain regulatory decisions. 

In order for an event to quality as "exceptional," the event: 1) must have affected air 

quality in such a way that there exists a clear causal relationship between the specific event and 

the monitored exceedance or violation; 2) was not reasonably controllable or preventable, and 3) 

was caused by human activity that is unlikely to recur at a particular location or was a natural 

event. !d., see also CAA § 319(b ). Exceptional events may include wildfire smoke, high winds, 

stratospheric ozone intrusions, and the like. 

Wyoming, like other states, relies upon and utilizes the Exceptional Event Rule to 

exclude event-influenced ambient monitoring data from use in certain regulatory decisions, or 

from ultimately being considered a "violation" of the ambient standard. Exceptional event 

demonstrations are resource intensive and costly, and place a significant burden on already 

strained state resources. 

Two examples highlight the state resources required, cost, and burden to make an 

exceptional event demonstration. The first example relates to stratospheric ozone intrusions. 

Wyoming's demonstration took just under a year to develop, required assistance from staff with 

meteorological expertise, assistance from EPA's stratospheric ozone intrusion workgroup, a 

group of state and federal regulators, and academics focused on stratospheric ozone intrusions. 

Wyoming submitted five demonstrations to EPA for stratospheric ozone intrusion causing 

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exceedances of the Ozone ambient standard. EPA acted on only one ofthose demonstrations, 

which was ultimately approved by EPA. The second example relates to wildfire events that 

cause ozone exceedances. Wyoming has not prepared such an exceptional event demonstration, 

but has reviewed the examples that EPA has posted. Wyoming estimates that it would take 

about 15 months and contractor assistance at a costs of over $150,000 to produce just one of 

those demonstrations. Resource and funding to produce demonstrations of this complexity and 

cost are simply impractical. 

As mentioned previously, in the past, EPA oftentimes would not act on Wyoming's 

requests. For example, Wyoming submitted more than 45 demonstrations of exceptional event 

influences on PM2.5, PM10, and ozone ambient monitoring data for calendar years 2007-2015. 

Wyoming's submittals indicated that the exceedances were affected by high winds, wildfires, 

and stratospheric intrusions. While EPA reviewed and concurred with some of Wyoming's 

demonstrations, EPA "shelved" the majority of them. 

EPA's decision to "shelve" Wyoming's demonstrations was problematic for several 

reasons. First, it signaled EPA's disregard for Wyoming's significant expenditure of money, 

time and resources to prepare submittals. Second, until EPA excludes the event-influenced data, 

it must be used for regulatory decisions. Use of data that should have been properly classified as 

"exceptional" may delay issuance of permits, create inaccurate public perception and 

understanding of ambient air quality, or result in federal policies that rest on a foundation of 

event-influenced data that should have been excluded. Ultimately, the EPA's consideration of 

data bereft of an exceptional event demonstration decision, results in a misrepresentation of the 

adequacy of existing state regulations and shifts state resources from addressing areas of concern 

to addressing situations that are not problematic. 

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30463.016

Wyoming is starting to see that EPA is changing when it comes to exceptional events. 

believe part of this change occurred after EPA revised the exceptional event rule in 2016 and 

then started listening to state questions and concerns related to Rule implementation. 

Wyoming- as a co-regulator -reached out to EPA regional staff- asked questions, 

expressed concerns, offered suggestions for implementation, and invited region staff to 

participate in Wyoming's ambient monitor training for industrial sources. Region staff attended 

and heard directly from Division staff and from Wyoming industrial sources. 

Wyoming requested and suggested that regional and national EPA reduce regulatory 

uncertainty by: I) timely action on ALL submittals under the revised rule; 2) accepting "rightsized" demonstrations; and 3) providing technical guidance, specifically in regards to the 

alternative pathways demonstrations for regulatory significant monitored data. 

And, the Division has been pleasantly surprised. While, Wyoming's requests and 

suggestions have not yet achieved full implementation, both the regional and national EPA 

offices are moving towards reducing regulatory uncertainty. At the WEST AR fall meeting, 

states raised questions and concerns. EPA national and regional staff listened and asked 

questions to gain a greater understanding of state concerns. 

One of the EPA workgroups focuses on stratospheric ozone intrusions. EPA sought and 

invited Wyoming to review and comment on draft "Guidance on the Preparation of Exceptional 

Event Demonstrations for Stratospheric Ozone Intrusions." Wyoming provided constructive 

feedback and reiterated the usefulness of this workgroup: 

15 

This group sends out notifications when [Stratospheric Ozone Intrusions] SI' s 

occur. They are also a readily available resource for small agencies that do not 

have full time forecasters to predict or diagnose SI's in real time. Workgroup 

members from various agencies and institutions have been very helpful in 

producing many of the technical products needed for demonstrations. Again it 

can be difficult for smaller agencies to have the resources or staff to assemble 
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30463.017

some of the technical products. The AQD requests that EPA continue to devote 

resources to the SI Workgroup and other groups like it. 

Comment letter from Cara Keslar, Monitoring Section Supervisor, Wyoming DEQ- Air Quality 

Division, to Gail Tonnesson, EPA Region 8 and Pat Dolwick OAQPS (April6, 2018). 

And, just this past week, at the AAPCA spring meeting, EPA noted that: across its 

regions, it has concurred on nine ozone exceptional event demonstrations; is focused on 

addressing concerns, ensuring timely reviews, right-sizing demonstrations, fostering national 

consistency, and providing technical guidance. This is how cooperative-federalism should work. 

Wyoming appreciates EPA's efforts to work with Wyoming and other states as a coregulator and looks forward towards full implementation at the regional level. It is at that point 

that the positive environmental benefits of cooperative federalism will be realized. Those 

positive outcomes include exceptional event-related data that is properly excluded from state and· 

federal regulatory decisionmaking so that information about Wyoming's ambient air quality is 

accurate, 8 permits are not delayed because of event-related data, and state and federal policies 

will rest on a more solid data foundation. All of these positive outcomes benefit Wyoming's 

environment and air quality because it allows the state, and EPA, to focus staff and resources on 

addressing areas of concern, instead of situations that are not, but appear to be, problematic, 

because EPA did not act to exclude event-related data. 

Now, I'd like to share some positive examples of Cooperative Federalism. 

8 Real time information about Wyoming's ambient air quality may be found at http://www.wyyisnet.com/. 

See also the Division's 2017 Air Quality Awareness Week outreach activities which included a hip-hop song that 

was inspired in part by AAPCA's "The Greatest Story Seldom Told- Profiles and Success Stories in Air Pollution 

Control" (April 20 17), and written and performed by Division public policy staff member Mike Morris: 

https://www.youtube.com/watch?v=DicFvsgiNOO 

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30463.018

Positive Examples of Cooperative Federalism: 

1) E-Enterprise for the Environment 

E-Enterprise for the Environment is a model for collaborative leadership among coregulators. E-Enterprise puts cooperative federalism into practice. Working together, coregulators are able to "deliver better results, often with lower costs and less burden, for the 

benefit of the public, the regulated community and government agencies." See EPA, About EEnterprise for the Environment. "By streamlining business processes and leveraging technology 

under joint governance, E-Enterprise is enabling the nation's environmental protection enterprise 

to be more informed, timely and productive, resulting in better health and environmental 

outcomes while supporting local jobs and communities. E-Enterprise helps foster greater trust 

among the regulated community, the public, and co-regulators by improving data integrity and 

communication." 

The Division, through Emissions Inventory Section Supervisor Ben Way, has actively 

participated in E-Enterprise, including its Facility Team and Combined Air Emission Reporting 

(CAER) projects for the past two years. Each of these projects is founded on reducing the flow 

and management of redundant facility data into and out of multiple data systems. The goals of 

the Facility Team Project are to improve facility data accuracy, reduce the burden associated 

with multiple system data entry, and provide the public with a more complete picture of 

regulatory obligations and environmental interests at each facility. The purpose of the CAER 

project is to make the emissions data reporting process more efficient by consolidating those 

processes using modern data sharing technologies and streamlined program collaboration. 

Ultimately, the results from theE-Enterprise model of collaborative federalism CAER 

and Facility Team projects will result in better air quality outcomes. 

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30463.019

2) A Seat at the Table- EPA's Board of Scientific Counselors 

Cooperative Federalism is also about how decisions are made. Last year, Wyoming 

learned of AAPCA's "States at the Table" joint project with the Council of State Government's 

(CSG) to develop a "comprehensive resource for state leaders from all three branches of 

government regarding opportunities to interact with federal energy and environmental agencies 

through Federal Advisory Committees (FACs)."9 Among the goals of this joint project is to 

"promote [cooperative] federalism" and provide state officials with "a potential 'seat at the table' 

with their federal counterparts in the early stages of regulatory, scientific, or intergovernmental 

decision making. When geographically diverse states participate in these discussions, EPA 

benefits from the "boots on the ground" experiences in implementing the Clean Air Act.''10 

In June 2017, EPA's Office of Research and Development (ORD) provided AAPCA 

members with an overview ofEPA's Board of Scientific Counselors. The BOSC provides ORD 

with "advice and recommendations" on all aspects ofORD's research programs. Those 

recommendations help improve the quality and focus ofORD's research, translation to users, 

and utilityofORD's research. The composition ofthe BOSC and its subcommittees is diverse, 

reflecting a balanced representation and different points of view to provide independent, expert 

research reviews. 

In November 2017, EPA appointed Wyoming's Air Quality Monitoring Section 

Supervisor, Ms. Cara Keslar, to this subcommittee. As a representative from the West and 

9 httD:IIwww.csg.org/aapca/ 

10 See AAPCA Comments, List of Candidates for the U.S. Environmental Protection Agency's (EPA) Clean Air 

Scientific Advisory Committee (CASAC) (Sept. 15, 2017), and AAPCA Comments, List of Candidates for the U.S. 

Environmental Protection Agency's (EPA) Charted Science Advisory Board (SAB) (Sept. 28, 2017). 

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30463.020

Wyoming, Cara brings a new perspective and a wealth of technical expertise and knowledge of 

western air issues and energy development, and a strong dose of Western practicality. 

Again, by having a seat at the table early in the process and next to other state and federal 

co-regulators, the benefits to come from cooperative federalism through shared accountability 

may be realized - improved air quality. 

3) Disaster Planning 

Last week, at the American Association of Pollution Control Agencies' Spring Meeting 

in Lexington, Kentucky, we heard about the Disaster Planning and Implementation efforts 

related to Hurricanes Harvey and Irma that took place between EPA, Texas and Florida. These 

states said that EPA's Disaster Planning and Response is one area where cooperative federalism 

is working well. EPA and states noted that with these disasters, EPA did not wait until after the 

disaster hit to mobilize, EPA reached out to the states beforehand. Key to the successful 

implementation was constant communication, "boots on the ground," and an "all hands on deck" 

approach that facilitated rapid and appropriate operational and regulatory responses. As one 

EPA speaker noted "In an actual emergency the EPA team is available seven days a week, day 

and night." Again, one of the benefits to come from cooperative federalism in these situations is 

to timely address air quality health protections. While Wyoming has not experienced a 

hurricane, the Division finds it reassuring to know that EPA has processes in place to address 

these situations and that work well. 

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30463.021

Testimony of the 

Association of Air Pollution Control Agencies 

U.S. Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies 

Regarding Fiscal Year (FY) 2019 Appropriations for the 

U.S. Environmental Protection Agency (EPA) State and Local Air Quality Management Grants 

April27, 2018 

The Association of Air Pollution Control Agencies (AAPCA) 1 appreciates the opportunity to 

provide written testimony on the FY2019 proposed budget for U.S. EPA, including state and local air 

quality management grants under the State and Tribal Assistance Grant (STAG) program. AAPCA 's state 

and local air agency members believe that stable, adequate resources, including state and local air quality 

management grants funded at a level at least equal to FY20 18, are critical to core Clean Air Act activities. 

The Consolidated Appropriations Act, 2018 (H.R. 1625), passed on March 23 of this year, 

recognized the need for these investments. H.R. 1625 funded the STAG program at $3.562 billion, with 

$1.076 billion provided for categorical grants, including $228.219 million for the State and Local Air 

Quality Management grant program, and $75 million for the Diesel Emission Reductions Grant program 

(prior to rescissions). 2 

Grants to state and local air agencies, including under Sections 103 and 105 of the Clean Air Act, 

fund essential activities related to planning, modeling, monitoring, training, developing emissions 

inventories and rules, permitting, inspections, and enforcing key elements of the National Ambient Air 

Quality Standards (NAAQS), air toxics, and regional haze programs. State and local air agencies have 

found creative ways to amplify these federal grant resources to fulfill core Clean Air Act functions, and, 

through the framework of cooperative federalism, achieve significant success in virtually every measure 

of air pollution control. 3 

On February 12, the White House released the President's budget proposal for FY2019.4 The 

budget requests $5.4 billion to fund U.S. EPA, approximately a 33-percent decrease from the 

appropriations omnibus that passed on March 23. The budget also proposes a nearly 45-percent reduction 

in categorical grants, or $478.65 million less than enacted FY2018levels. Further, U.S. EPA's FY2019 

Justification of Appropriation Estimates for the Committee on Appropriations shows the elimination of 

several air-related programs, including reducing state and local air quality management grants by more 

than 3 3 percent.' 

AAPCA recognizes that your Subcommittee is in the early stages of the FY20 19 appropriations 

process, and that H.R. 1625 did not adopt similar figures proposed by the Administration for FY2018. 

Congressional budgets for at least the past 15 fiscal years have recognized the need for stable, adequate 

1 AAPCA is a national, non-profit, consensus-driven organization focused on assisting state and local air quality 

agencies and personnel with implementation and technical issues associated with the federal Clean Air Act. AAPCA 

represents more than 40 state and local air agencies, and senior officials from 20 state environmental agencies 

currently sit on the AAPCA Board of Directors. AAPCA is housed in Lexington, Kentucky as an affiliate of The 

Council of State Governments. You can find more information about AAPCA at: http://www.cleanairact.org. 2 H.R. 1625- Consolidated Appropriations Act, 2018 (Public Law 115-141). 3 http://cleanairact.org/documents/GreatcstStorv4·17·17 .pdf. 4 https://www. whitehouse.gov/wp-contentluploads/20 18/02/budget-fy2019.pdf. 

' https:l/www .epa.gov /si tes/production/flles/20 18-02/ documents/fy-20 19-congressional-justification-all-tabs.pdf. 
30 


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ASSOCIATION Of ili '3!t#T!ON CONTIIOL AfrCIES 

funding for state and local air quality management grants. Since FY2008, funding for these grants has 

averaged nearly $230 million, and the average year-to-year change has never been less than three 

percent.' 

Instability in funding for key grant programs may affect each state or local air agency differently. 

Recent communication from the Environmental Council of States (ECOS) indicated that "As Categorical 

Grants make up on average 27% of state environmental agency budgets, decreases in these grants have 

significant impacts on the work that state environmental agencies are able to accomplish. "7 Providing 

stable, adequate funding for these grant programs through the appropriations process allows for state and 

local air agencies to continue the important and essential work that has driven success in air quality. 

Thank you for the attention to this testimony. AAPCA and its members look forward to working 

with your Subcommittee as Congress develops its priorities for FY2019 appropriations. If you have any 

questions, please contact Mr. Jason Sloan, Executive Director, at jsloan(a)csg.org or (859) 244-8043. 

6 Figures assume dollars not adjusted for inflation. 

Sincerely, 

Stuart Spencer 

Associate Director, Arkansas Department of 

Environmental Quality 

President, AAPCA 

7 https://www .ecos.orglwp-content/uploads/20 18/03/FY 18-EPA-Budget-Letter .pdf. 

2 
31 


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Senate Committee on Environment and Public Works 

Subcommittee on Clean Air and Nuclear Safety 

Hearing entitled, "Cooperative Federalism Under the Clean Air Act: State Perspectives." 

April tO, 2018 

Questions for the Record for Administrator Vehr 

Chairman Barrasso: 

I. Administrator Vehr, does the Clean Air Act give EPA the authority to second-guess 

states' choices in the Regional Haze Program when their plans meet statutory 

requirements? What improvements could be made to the program in the second 

implementation period? 

The Clean Air Act does not give EPA the authority to second-guess state's choices when their 

plans meet Regional Haze Program statutory requirements. Under cooperative federalism 

principles, EPA sets the deadlines and state plan requirements and States develop and submit 

plans with implementation strategies to meet those deadlines and state plan requirements. 

One improvement that could be made to EPA 's approval process moving forward would include 

providing timely guidance to states on state plan requirements so that states are best positioned 

to submit approvable state plans. As my written testimony noted, States have already mobilized 

and started gathering data that will need to be analyzed in order to develop state plans to meet 

the 2021 submittal deadline. The data collection, analysis, and state plan development process 

requires significant state resources. Another improvement suggestion would for EPA's guidance 

to address international contributions to visibility impairment. EPA also announced that it 

intends to commence a notice-and-comment rulemaking to address portions of the Regional 

Haze Rule including provisions related to Reasonably Attributable Visibility Impairment and 

Federal Land manager consultation. The Division looks forward to participation in that 

process. 

2. Administrator Vehr, how can innovative projects, such as the Integrated Test Center at 

Dry Fork station outside Gillette, WY, ultimately assist your work at the Wyoming 

Department of Environmental Quality? 

The mission of the Department of Environmental Quality is to "protect, conserve and enhance 

the quality of Wyoming's environment/or the benefit of current and fUture generations." The 

Division must carry out this mission in a balanced manner-protecting our natural resources 

while providing for economic development. The purpose for the Integrated Test Center is to 

study the "capture, sequestration and management of carbon emissions from a Wyoming power 

plant." Along with testing capture technologies, "research will look at taking flue gas and 

turning it into a marketable commodity." The innovations that may result from this project may 

lead to emission reductions or transform an air pollutant into a valuable commodity. 

3. Administrator Vehr, how would you describe Wyoming's experience in submitting 

exceptional events demonstrations in the past? Under EPA's current process, is the 

Page 1 ofS 
32 


30463.024

exceptional events rule a viable option for addressing background ozone? Are additional 

policy changes and flexibilities needed to fully address background ozone? 

Wyoming was extremely frustrated with and by EPA 's failure to act on exceptional event 

demonstrations that Wyoming submitted in the past. Exceptional event demonstrations are 

resource intensive and costly to prepare. Wyoming followed EPA's process. EPA shelved 46 

demonstrations that Wyoming had submitted for calendar years 2007- 2015. Recently, 

however, EPA has actively engaged with Wyoming and other states to improve the timeliness of 

their actions, accept "right-sized" demonstrations, and develop technical guidance for 

alternative pathways. The Division is optimistic that this progress will continue and result in 

timely and appropriate action for future submittals. In addition, the Division is engaged in 

discussions with EPA about how to address the 46 shelved demonstrations. 

The exceptional event rule is not a viable option for addressing background ozone. Other policy 

changes and flexibilities are needed to properly manage the challenges created by the presence 

of background ozone. 

Ranking Member Carper: 

Please provide a response to each question, including each sub-part. 

4. In the President's EPA budget for fiscal year 2019, there are deep cuts to EPA programs, 

especially for funds that help assist state air programs1

• What would these budget cuts 

mean for your state if Congress adopted the President's budget for fiscal year 2019? 

The Division concurs with the Association of Air Pollution Control Agencies (AAPCA) April 27, 

2018 testimony submitted to the U.S. Senate Appropriations Subcommittee on Interior, 

Environment, and Related Agencies, "members believe that stable, adequate resources, 

including state and local air quality management grants funded at a level at least equal to the 

FY2018, are critical to core Clean Air Act activities." A copy of that testimony is attached. 

While Wyoming appreciates the federal funding it receives to carry out Clean Air Act objectives, 

the Division's experience has been that it has received minimal federal funding. Wyoming's 

legislature recently approved its balanced biennial budget. That budget includes Wyoming's Air 

Quality Program which is funded over a two-year biennium by 7%/ederalfunds ($1,464,314), 

61% special revenues ($12,672,881), and 32% state general funds ($6,599,112). 

5. As I mentioned in the hearing, Senator Udall and I sent a letter-2 to EPA regarding 

concerns about a proposal that would allow some of the dirtiest heavy-duty diesel trucks, 

called glider trucks, to circumvent clean air cleanups. Glider trucks look like new trucks 

outside, but are equipped with old, high-polluting diesel engines on the inside. As we 

state in the letter, according to internal agency research - not released until after EPA 

published this proposal - a new 2017 glider truck can emit up to 450 times the particulate 

1 hnps://www,eoa.gov/planandbudget/fy2019 

2 

~ 

https://www.epw.senate.gov/public/index.cfm/2018/3/camer~udall-guestion~eoa-decision-to-repeal-air-emissions·standards-for-high-pollutingPage 2 of 5 
33 


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matter (PM) pollution, and up to 43 times the nitrous oxide (NOx) pollution, of model 

year 2014 and 2015 trucks. Other EPA analyses concluded that, if! eft unregulated, glider 

vehicle emissions could prematurely kill thousands of people, and increase instances of 

lung cancer, chronic lung disease, heart disease, and severe asthma attacks. This is 

additional pollution that will be emitted in my state, in your state and states across the 

country. I fear that if this proposal went final, it could further burden states already 

struggling to meet ambient air health standards. 

a. Comments on the glider proposal submitted by the Diesel Emissions Reduction 

Act (DERA) Coalition, which is a broad coalition of environmental, public health, 

industry and state groups who support clean diesel, included the following 

statement: 

"We are concerned that EPA's decision to encourage the continued 

proliferation of older engines through the glider industry would increase 

emissions from medium and heavy-duty vehicles and undermines the 

work of the Coalition and cooperative federalism with the EPA and 

states."3 

Do you share the DERA Coalition's concerns? If not, why not? 

It is my understanding that on October 25, 2016, EPA adopted regulations addressing glider 

engines. See 81 Fed. Reg. 73512. On November 16, 2017, EPA proposed to repeal the emission 

standards and other requirements for heavy-duty glider vehicles, glider engines, and glider kits, 

based on a proposed interpretation of the Clean Air Act under which glider vehicles would be 

found not to constitute 'new motor vehicles', glider engines would be found not to constitute 

'new motor vehicle engines', and glider kits would not be treated as 'incomplete' new motor 

vehicles. Under EPA 's proposed interpretation, EPA would "lack authority to regulate glider 

vehicles, glider engines, and glider kits under the Clean Air Act. " See 82 Fed. Reg. 53442. 

Wyoming appreciates that under the Cooperative Federalism framework, EPA develops national 

standards after working with and obtaining the input from co-regulators and other interested 

stakeholders. If a court determines that EPA lacks authority to regulate glider engines under the 

Clean Air Act, then the DERA Coalition will be free to evaluate other options that are consistent 

with the Clean Air Act to achieve their objectives, which may include state-specific strategies. If a court determines that EPA has authority, then it would be appropriate for the DERA Coalition 

to engage EPA regarding their concerns. 

b. Removing gliders from the definition of a new motor vehicle will also mean that 

California will not need a Section 209 waiver to enforce its own glider standards, 

which are currently set as the same as federal standards, but could get tighter over 

time. At the same time, all other states would be free to set their own standards, 

also without first needing to request a waiver from EPA, setting up a patchwork 

of state standards for gliders. Would it be better to retain the federal standard or 

finalize the glider proposal that will create regulatory uncertainty and the potential 

for 50 different state standards for the industry? 

3 http://www.lung orglassetsJdocuments/advocacy-archivefdera-coa!ition~comments-re pdf 

Page 3 of 5 
34 


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The Clean Air Act framework established by Congress vests the EPA with authority to set and 

enforce new motor-vehicle emission standards. Under that framework, states are prohibited 

from adopting or attempting to enforce "any standard relating to the control of emissions from 

new motor vehicles or new motor vehicle engines." Also under that framework, Congress 

provided that California may adopt its own vehicle emission standards, which other States may 

follow. The question appears to turn on whether EPA had legal authority to adopt the standards, 

and not on whether it is "better" to retain the current standards. If EPA lacks authority to 

regulate glider engines under the Clean Air Act, then states may evaluate other options and 

approaches under their state authorities. 

Senator Whitehouse: 

6. Do you support the proposed cuts to EPA programs funding state clean air initiatives? 

The Division concurs with the Association of Air Pollution Control Agencies (AAPCA) April 27, 

2018 testimony submitted to the U.S. Senate Appropriations Subcommittee on Interior, 

Environment, and Related Agencies, "members believe that stable, adequate resources, 

including state and local air quality management grants funded at a level at least equal to the 

FY2018, are critical to core Clean Air Act activities." A copy o,(that testimony is attached. 

7. Do you believe that climate change is occurring and that it is caused by human emissions 

of greenhouse gases? 

I appreciate your question, however, it appears to be a separate topic and digresses from the 

focus of a hearing devoted to "cooperative federalism under the Clean Air Act in hopes of 

providing a greater understanding of the opportunities and challenges/acing states as they 

engage with Environmental Protection Agency to implement regulations within the authorities of 

Clean Air Act." Given the focus of the hearing, I offer the following perspective. 

As noted in my written testimony, Cooperative Federalism is a congressionally established 

foundational concept to ensure effective public health and environmental outcomes. Over time, 

that concept shifted towards the federal government and away from states. As stated in my 

testimony, that shift resulted in the development of one-size-fits-alllaws, regulations, policies, 

and guidance that overrode legitimate state authority and failed to consider the unique 

geophysical, ecological, social, and economic conditions of each state. Ultimately, that shift 

limits state flexibility, and leaves states to enforce national policies developed without the benefit 

of local understanding. 

EPA recently closed comment on its proposed repeal of the 2015 Carbon Pollution Emission 

Guidelines for existing power plants, commonly known as the "Clean Power Plan. " The DEQ 's 

comments focused on practical and legal concerns related to EPA's statutory authority and 

fUndamental methodology. These comments reflect that the Wyoming Department of 

Environmental Quality remains committed to working with EPA and other federal partners in an 

effective and balanced cooperative federalism approach that recognizes states and EPA as coregulators, co-fonders, and partners in a system that provides effective environmental and public 

health outcomes. 

Page 4of5 
35 


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The Division develops and implements strategies consistent with federal and state law. This is 

done in part by reducing air pollution emissions that ultimately leads to positive environmental 

and public health outcomes. The Division recognizes that Wyoming's strategies are tailored to 

Wyoming's unique circumstances and that other states tailor strategies to address their unique 

circumstances. 

Page 5 ofS 
36 

Senator CAPITO. Thank you. 

Mr. Alteri. 

STATEMENT OF SEAN ALTERI, DIRECTOR, DIVISION OF AIR 

QUALITY, KENTUCKY DEPARTMENT FOR ENVIRONMENTAL 

PROTECTION 

Mr. ALTERI. Good morning, Chair Capito, Ranking Member 

Whitehouse, and members of the Subcommittee. 

My name is Sean Alteri, and I currently serve as the Director of 

the Kentucky Division for Air Quality. I am honored to testify 

today, and thank you for this opportunity to share a State’s perspective related to cooperative federalism under the Clean Air Act. 

In addition to my work with the Kentucky Division for Air Quality, I also serve as the Past President for the Association of Air Pollution Control Agencies. Our association is a national, non-partisan, consensus driven organization focused on improving air quality. The Association represents more than 45 State and local air 

agencies. 

As Senator Inhofe remarked during a 2016 hearing, ‘‘Cooperative 

federalism is a core principle of environmental statutes, including 

the Clean Air Act, where EPA and the States work together to 

meet environmental goals.’’ 

Obviously, mutual respect is essential and necessary to forge a 

strong working relationship between EPA and State regulators. 

Working together, cooperatively, will allow all of us to achieve our 

environmental goals and objectives. 

Specific to the Clean Air Act, cooperative federalism is more than 

a catch phrase. Once EPA establishes a standard or an applicable 

requirement under Title I of the Act, the States are primarily responsible for the implementation and enforcement of those standards and requirements. 

These standards include national ambient air quality standards, 

standards of performance, national emission standards for hazardous air pollutants, and waste incineration rules. To ensure that 

States are provided with the ability to carry out their obligations 

under the Clean Air Act and effectively administer its delegated 

authorities, EPA must establish nationally uniform emission standards based on sound science. 

Additionally, EPA must promulgate reasonable regulations and 

fully consider implementation requirements of State, tribal, and 

local air pollution control agencies. Importantly, EPA must allocate 

stable and adequate resources and funds to State, tribal, and local 

air pollution control agencies. 

Also, EPA must provide timely implementation guidance and 

technical support. Finally, EPA must meet all of its non-discretionary statutory duties by the prescribed deadlines. EPA’s strategic plan for fiscal years 2018–2022 underscores each of these necessities. 

In its strategic plan, EPA establishes a goal of cooperative federalism and sets forth its objectives to ‘‘enhance shared accountability’’ and ‘‘to increase transparency and public participation.’’ 

EPA’s goal and objectives are consistent with those of State, tribal, 

and local air pollution control agencies. 

37 

In Kentucky, we take our responsibilities seriously and work diligently to fulfill our obligations under the Clean Air Act. We are 

proud of the significant improvement in air quality, and we understand that there is more work to conduct. 

In the spirit of cooperative federalism, I would like to provide a 

status report on the air quality in Kentucky and detail activities 

conducted by our Cabinet to fulfill our obligations. 

Air quality in Kentucky is improving dramatically. In the last 10 

years emissions of sulfur dioxides from our electric generating 

units decreased by more than 83 percent, and emissions of nitrogen 

oxides decreased by more than 70 percent. Our robust ambient air 

monitoring network measures these positive results. 

Currently, all monitors in the Commonwealth, except for one 

ozone monitor in Louisville, measure compliance with all of the national ambient air quality standards including the 2015 ozone 

standard. 

These reductions and our success in air quality improvement are 

achieved through significant investments to install and upgrade air 

pollution controls. In the last 10 years our utilities invested more 

than $8 billion for air pollution controls. These expenditures are 

shared by all of the ratepayers in the Commonwealth. 

Despite these efforts, EPA, during the last Administration, disapproved several State implementation plan revisions and issued 

Federal implementation plans as a result. EPA’s negative actions 

to disapprove or issue a Federal implementation plan resulted from 

sue and settle decisions. 

In closing, the Commonwealth of Kentucky is meeting its statutory obligations under the Clean Air Act, and we are good neighbors by reducing our emissions and providing the rest of the country with all the manufactured goods and products necessary to improve the quality of life for all. 

To accommodate cooperative federalism and strong working relationships, we request that EPA apply a State implementation approach rather than aggressive Federal overreach. 

Again, thank you for the opportunity to testify today. I look forward to any questions or comments you may have regarding my 

testimony. 

[The prepared statement of Mr. Alteri follows:] 

38 


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Sean Alteri 

Director, Division for Air Quality 

Commonwealth of Kentucky 

Energy and Environment Cabinet 

Frankfort, KY 

Mr. Sean Alteri serves as the Director of the Division for Air 

Quality. The Division is comprised of 166 full-tinie 

employees divided into 4 technical branches and 20 

specialized sections and is responsible for carrying out the 

Clean Air Act requirements on behalf of the Commonwealth. 

During his 20-year career with the Division, Mr. Alteri worked as a Permit Engineer 

Assistant, Regulation Development Supervisor, Technical Services Branch Manager, 

and the Assistant Director. Currently, Sean is also serving as the Past-President of the 

Association of Air Pollution Control Agencies (AAPCA), a national, non-partisan, 

consensus-driven organization focused on improving air quality and is a board member 

of the Southeastern States Air Resources Managers (SESARM). 

Mr. Alteri is a graduate of the University of Kentucky, College of Engineering (BS 

Chemical, 1997). 
39 


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MATIHEWG.BEVIN 

"""""""' ENERGY AND ENVIRONMENT CABINET 

DEPARTMENT FOR ENVIRONMENTAL PROTECTION 

300 SoWER BoULEY ARD 

FRANKFORT, KENTUCKY 40601 

TESTIMONY OF SEAN ALTERI 

ON 

CHARLES G. SNAVELY 

s.a.rrAARON B. KEATLEY 

COM!oi!SSIONER 

"COOPERATIVE FEDERALISM UNDER THE CLEAN AIR ACT: STATE PERSPECTIVES" 

BEFORE THE 

UNITED STATES SENATE ENVIRONMENT AND PUBLIC WORKS 

SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR SAFETY 

APRIL 10,2018 

Good morning, Chair Capito, Ranking Member Whitehouse, and members of the 

Subcommittee. My name is Sean Alteri and I currently serve as the Director of the Kentucky Division 

for Air Quality. I am honored to testify today and thank you for this opportunity to share a state's 

perspective related to "cooperative federalism" under the Clean Air Act. 

In addition to my work with the Kentucky Division for Air Quality, I also serve as the PastPresident for the Association of Air Pollution Control Agencies. Our association is a national, non· 

partisan, consensus-driven organization focused on improving air quality. The Association represents 

more than 45 state and local air agencies. 

As Senator lnhofe remarked during a 2016 hearing, "Cooperative federalism is a core principle of 

environmental statutes, including the Clean Air Act ... where EPA and the states work together to meet 

environmental goals." Obviously, mutual respect is essential and necessary to forge a strong working 

KentuckyUnbridledSpirit.com An Equal Opportunity Employer MIFID 
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relationship between EPA and state regulators. Working together, cooperatively, will allow all of us to 

achieve our environmental goals and objectives. 

Specific to the Clean Air Act, "cooperative federalism" is more than a catch phrase. Once EPA 

establishes a standard or an applicable requirement under Title I of the Clean Air Act, the states are 

primarily responsible for the implementation and enforcement of those standards and requirements. These 

standards include national ambient air quality standards, standards of performance, national emission 

standards for hazardous air pollutants, and waste incineration rules. 

To ensure that states are provided with the ability to carry out its obligations under the Clean Air 

Act and effectively administer its delegated authorities, EPA must: 

• Establish nationally uniform emission standards based on sound science; 

• Promulgate reasonable regulations and fully consider implementation requirements of state, tribal, 

and local air pollution control agencies; 

Allocate stable and adequate resources and funds to state, tribal, and local air pollution control 

agencies; 

• Provide timely implementation guidance and technical support; and, 

• Meet all of its non-discretionary statutory duties by the prescribed deadlines. 

EPA's Strategic Plan for FFY 2018-2022 underscores each of these necessities. In its strategic 

plan, EPA establishes a goal of"Cooperative Federalism" and sets forth its objectives to "enhance shared 

accountability" and "increase transparency and public participation." EPA's goal and objectives are 

consistent with those of state, tribal, and local air pollution control agencies. 

In Kentucky, we take our responsibilities seriously and work diligently to fulfill our obligations 

under the Clean Air Act. We are proud of the significant improvement in air quality, and we understand 

that there is more work to conduct. 

2 

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In the spirit of cooperative federalism, I would like to provide a status report on the air quality in 

Kentucky and to detail activities conducted by our Cabinet to fulfill our obligations under the Act. Air 

Quality in Kentucky is improving dramatically. In the last 10 years, emissions of sulfur dioxides from 

Kentucky electric generating units decreased by more than 83% and emissions of nitrogen oxides 

decreased by more than 70%. Our robust ambient air monitoring network measures these positive results. 

Currently, all of the monitors in the Commonwealth, except for one ozone monitor in Louisville, measure 

compliance with all of the national ambient air quality standards, including the 2015 ozone standard. 

These reductions and our success in air quality improvement are achieved through significant 

investments to install and upgrade air pollution controls. In the last 10 years, our utilities invested more 

than $8 Billion dollars for air pollution controls. And these expenditures are shared by all of the ratepayers 

in the Commonwealth. 

Generally, the State Implementation Plan serves as the roadmap of the state's ability to 

implement, maintain, and enforce primary and secondary national ambient air quality standard; 

whereas, a state or local air quality permit program acts as the vehicle for the implementation of 

the standards and requirements for stationary sources. And fmally, the inspections and compliance 

evaluations performed by an agency establish accountability and enforcement of the applicable 

requirements. EPA provides oversight and is the approving authority for these delegated activities. 

Relative to Kentucky's air quality permitting program, I am pleased to report that all of the Title 

V operating permits in at least the last 5 years were issued under Part 70 of 40 CFR, the state's 

authority, and no permits were issued by EPA under Part 71. During calendar year 2017, the Cabinet 

issued 368 permit actions that contained federally-enforceable requirements. Similarly, our 

stationary source inspectors conducted 327 full compliance evaluations for sources located in 

Kentucky; whereas, EPA only conducted 3 stationary source inspections. Clearly, Kentucky serves as 

the primary authority to implement and enforce the Clean Air Act requirements related to stationary 

sources. 

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Despite these efforts, EPA during the last Administration disapproved several 

State hnplementation Plan revisions and issued Federal hnplementation Plans as a result. The vast 

majority of EPA's negative actions to disapprove or issue a Federal hnplementation Plan resulted from 

"Sue-and-Settle" decisions. 

For today's hearing, I would like to highlight and provide context to the Administrator's 

statement: "Past sue-and-settle tactics, however, undermined this principle of cooperative federalism by 

excluding states from meaningfully participating in procedural and substantive Agency actions." The 

Administrator correctly assesses the negative impact of sue-and-settle negotiations when states are 

excluded from meaningful participation. As mentioned, several issues related to Kentucky's State 

hnplementation Plan have been and are subject to third-party litigation. EPA settled those matters with 

no input or interaction with our agency or any representative of the Commonwealth. When Kentucky's 

air quality representatives would inquire on the status or substance of the litigation, EPA would explain 

that those are matters under litigation and EPA is prevented from discussing the issues with the affected 

states. 

It is also worth noting that there are instances where matters related to the Kentucky State 

Implementation Plan are filed and decided in the U.S. District Court for the Northern District of 

California. Although our Cabinet counsel has explained to me the legality of the venue; as a layperson, I 

do not understand, nor agree, why a judge in Northern California should decide a matter relating to 

the Kentucky State hnplementation Plan or the designation schedule of a national ambient air 

quality standard. The venue of the Northern California District Court limits the Commonwealth's 

ability to meaningfully participate in the procedural and substantive EPA actions related to the 

Kentucky State hnplementation Plan. Instead, national ambient air quality standards, or actions 

related to state implementation plans, are matters affecting national policy and law and should be 

decided in the DC Circuit to establish national consistency. 

4 

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In closing, the Commonwealth of Kentucky is meeting its statutory obligations under the Clean 

Air Act and we are "Good Neighbors" by reducing our emissions and providing the rest of the country 

with the manufactured goods and products necessary to improve the quality of life for all. To 

accommodate "cooperative federalism" and strong working relationships, we request that EPA apply a 

state implementation approach rather than aggressive federal overreach. Again, thank you for the 

opportunity to testify today, and I look forward to any questions or comments you may have regarding 

my testimony. 

5 

KentuckyUnbridledSpirit.com T<r!!!!!~ An Equal Opportunity Employer M!FID 
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Kentucky Electric Generating Unit Emissions 

400000 

350000 3443S6,468 

300000 

250000 

200000 

150000 157847. 

100000 

91824.418 920§1,032 

78767.2:?.<1 

50000 

45956.654 

2008 2009 2010 20!1 2012 2013 2014 2015 2016 2017 -S02ltons)-N~!lDM) 

Source: EPA's Clean Air Markets Division (https://ampd.epa.gov/ampdl) 

6 

KentuckyUnbridledSpirit.com An Equal Opportunity Employer MIF ID 
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400 

350 

300 

250 

200 

150 

100 

50 

0 

Number of Facilities with a Full Compliance 

Evaluation 

I 

l 

2011 

2012 

I 

I 

I 

! I 

I ' 

I 

I 

2013 

2014 

iJState .EPA 

l 

I 

I 

2015 

2016 

2017 

https://echo.epa.govttrends/comparative-maps-dashboards/state-air-dashboard?state=KY&view=activity 

7 

KentuckyUnbridledSpirit.~m An E<jual Opportunity Employer MIFID 
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MATnmw G. BeVIN GP\IUI'ItlllENERGY AND ENVIRONMENT CABINET 

Hon. John Barrasso 

Hon. Thomas R. Carper 

EPW Committee 

300 Sowoo BouLEVARD 

FRANKFORT. KENTUCKY 40501 

TEI.Er!Klf'O: 502·564-3350 

n:uiF-1\X: 502v564~74M4 

May 10,2018 

410 Dirksen Senate Office Building 

Washington, DC 20510 

Attn: Ms. Beth Trenti 

Dear Chair Barrasso and Ranking Member Carper, 

CHAki.ES G. SNAVEI v 

SECR€TAR'I' 

R. 8RUCESCOIT 

OEP\lrY SECRETAAV' 

On April 10, 2018, I appeared before the Senate Committee on Environment and Public 

Works, Subcommittee on Qean Air and Nuclear Safety to testify at the hearing entitled, 

"Cooperative Federalism Under the Clean Air Act: State Perspectives." I sincerely appreciated 

the opportunity to discuss one state's perspective on cooperative federalism under the Clean Air 

Act. Included in this letter, please find my responses to questions for the record. 

Chairman Baqasso; 

1. Director Alteri, you noted that over the last ten years, Kentucky has reduced emissions of 

sulfur dioxides by 83 percent and nitrogen oxides by 70 percent. Those emissions are 

precursors to the formation of ozone. To achieve these reductions, utilities in your state 

invested $8 billion in l!ir pollution controls paid by Kentucky's ratepayers. Despite the 

dramatic reduction in emissions from sources in Kentucky, certain states in the Northeast 

claim these sources still signifirnntly contn'bute to their ozone issues. 

a. My understanding is that despite Kentucky's significant reductions in ozone 

precursors, ozone issues in the Northeast have not been fully resolved. Doesn't 

that suggest that the primary cause of nonattainment issues in the Northeast is not 

upwind states like Kentucky? 

Resoonse: 

Ambient air monitoring data, along with the continuous emissions monitoring 

data from electric generating units located in Kentucky, indicate that the primary 

rnuse of non attainment in the Northeast is not emissions from Kentucky. 

KentuckyUnbridlcdSf1irit.l"'m An Equal Opp[Jflunity ERl(lloyer MIF!l> 
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30463.037

Hon. Barrasso 

Hon. Carper 

May 10,2018 

Page 2 

b. Do you believe that there are issues with the current modeling approaches used in 

setting ozone transport policies? 

Response: 

Yes. As noted during the hearing, the emissions inventories of source categories 

other than electric generating units are not comprehensive enough to provide 

accurate source apportionment and determine source contributions through air 

modeling techniques. During litigation related to Kentucky's interstate transport 

obligations, EPA recognized the necessity to "Improve Data on Inventory and 

NOx Control Strategies for Non-EGUs" and stated the following: 

As a first preliminary step, EPA must take steps to improve the quality of its 

information regarding tire current status of existing colllrols for tire non-EGU 

invemory and data on potential control devices that could be installed on 

uncontrolled or under-controlled sources. This information is necessary to 

quantify potential emissions impacts and reductions from no11-EGU sources. If 

EPA does not gather tlris information with respect to non-EGUs, the results of 

EPA 's subsequent analyses might be inaccurate and might result in either overor under-control of emissions relative to downwind air quality problems, a 

scenario that is prolribited by 42 U.S. C.§ 7410(a)(2)(D)(i). EME Homer City 

Generation, 134 S. Ct. at1604. 1 

Further, EPA and other modeling experts are aware of inaccuracies with modeled 

predictions for areas located near ports, harbors, and near large bodies of water. 

c. What are some of your recommendations to EPA about how the Agency should 

better work with states to resolve ozone transport issues? 

Response: 

First, EPA must enhance the accuracy of the emissions inventories that are used in 

the air modeling assessments. For instance, EPA must clearly determine sources 

of increased emissions during high ozone demand days, such as peak-demand 

electric generators with relatively short stacks. 

EPA must also determine and clearly define the significant contributions and the 

required reductions necessary to appropriately determine the amount of control as 

dictated by the Supreme Court's EME Homer City decision. 

1 CASE NO. 3:1S-cv-04328-JD, "EPA'S OPP. & CROSS-MOTION", flied December 1S, 2016, Page 14 
48 


30463.038

Hon. Barrasso 

Hon.Carper 

May 10,2018 

Page 3 

d. Is there evidence that localized sources within the Northeast are the significant 

contributors to ozone in that region? 

Response: 

Our preliminary research of high ozone days indicate that local peak-demand 

electric generators contribute to ozone exceedances. The relatively short stacks 

increase ground-level concentrations of nitrogen oxides and the formation of 

ozone. 

2. Director Aheri, can you please explain the negative impacts of past EPA "sue and settle" 

agreements on your Department's efforts to develop State Implementation Plans? 

Response: 

Sue and settle agreements often lead to uncertainty, which results in wasted time and 

effort with little to no environmental benefit. Although Kentucky's and all downwind 

monitors achieve the 1997 Ozone and 1997 PMz.s National Ambient Air Quality 

Standards, EPA has disapproved Kentucky's infrastructure State implementation Plans 

(SIPs) as it relates to interstate transport obligations due to sue-and-settle outcomes. 

Currently, Kentucky is required to administratively address these perceived deficiencies 

that will result in no environmental benefit. 

To promote "cooperative federalism" on these issues, EPA should include states' experts 

who are responsible for ultimately implementing any decisions resulting from the 

litigation. 

3. Director Alteri, do you believe it is appropriate for EPA to second-guess New Source 

Review permitting decisions made by state and local officials? Can you explain the 

practical impacts when EPA overrides or second-guesses decisions? 

Resoonse: 

No, it is not appropriate for EPA to "second-guess" or override complicated, technical 

determinations without substantial evidence demonstrating an error in judgment. Without 

clearly stating objections to engineering estimates, the permitting authority will be forced 

to significantly delay the issuance of important environmentally permits that also provide 

for economic development opportunities. 
49 


30463.039

Hon. Barmsso 

Hon. Carper 

May 10,2018 

Page 4 

4. Director Alteri, could EPA do a better job at more clearly defining how and when a 

source is to be aggregated for purposes of a New Source Review permit? 

Reyponse: 

Yes. State and local air pollution control agencies would greatly benefit EPA clearly 

defining what constitutes "common control" in determining aggregation of projects under 

the New Source Review permitting program. To enhance regulatory certainty, EPA's 

determinations must be codified into regulation nod not issued as non-binding to 

guidance memoranda. 

5. Director Alteri, what are some specific actions that EPA can take under its existing 

authority to make New Source Review permitting more efficient? 

Resoonse: 

The most difficult aspect of permitting a major emilling facility under the New Source 

Review program is air dispersion modeling, which is utilized to determine whether a 

project will cause or contribute to a violation of the National Ambient Air Quality 

Standards. The direct relationship of using the New Source Review program to achieve 

and maintain the National Ambient Air Quality Standards exemplifies the necessity to 

consider and include implementation requirements when EPA revises a National Ambient 

Air Quality Standard. Specifically, the air dispersion modeling requirements necessary to 

evaluate the consequences of any decision to permit increased air pollution in an area 

must be promulgated at the same time EPA revises a National Ambient Air Quality 

Standard. 

Ranking Member Carper: 

Please provide a response to each question, including each sub-part. 

6. In the President's EPA budget for fiscal year 2019, there are deep cuts to EPA programs, 

especially for funds that help assist state air programs'. What would these budget cuts 

mean for your state if Congress adopted the President's budget for fiscal year 2019? 

Response: 

Currently, the Division for Air Quality receives approximately $2,400,475 to assist in 

administering nod meeting obligations and requirements under the Clean Air Act. Any 

reduction in budgeted amounts would reduce the grants and funds allocated to the 

Commonwealth for the purposes of carrying out Clean Air Act obligations. 
50 


30463.040

Hon. Barrasso 

Hon. Carper 

May 10,2018 

Page5 

7. As I mentioned in the hearing, Senator Udall and I sent a lettei! to EPA regarding 

concerns about a proposal that would allow some of the dirtiest heavy-duty diesel trucks, 

called glider trucks, to circumvent clean air cleanups. Glider trucks look like new trucks 

outside, but are equipped with old, high-polluting diesel engines on the inside. As we 

state in the letter, according to internal agency research- not released until after EPA 

published this proposal- a new 2017 glider truck can emit up to 450 times the particulate 

matter (PM) pollution, and up to 43 times the nitrous oxide (NOx) pollution, of model 

year 2014 and 2015 trucks. Other EPA analyses concluded that, if left unregulated, glider 

vehicle emissions could prematurely kill thousands of people, and increase instances of 

lung cancer, chronic lung disease, heart disease, and severe asthma attacks. This is 

additional pollution that will be emitted in my state, in your state and states across the 

country. I fear that if this proposal went final, it could further burden states already 

struggling to meet ambient air health standards. 

a. Comments on the glider proposal submitted by the Diesel Emissions Reduction 

Act (DERA) Coalition, which is a broad coalition of environmental, public health, 

industry and state groups who support clean diesel, included the following 

statement: 

"We are concerned that EPA's decision to encourage the continued 

proliferation of older engines through the glider industry would increase 

emissions from medium and heavy-duty vehicles and undermines the 

work of the Coalition and cooperative federalism with the EPA and 

states.'"' 

Do you share the DERA Coalition's concerns? lfnot, why not? 

Response: 

As an air quality regulator, I support the reduction of emissions and their impncts 

on public health and the environment. Directly related to the quoted comment 

above, I am not certain that EPA's decision is to encourage the proliferation of 

older engines and increase emissions, but rather my understanding is that EPA's 

decision is dependent upon whether it has the legal authority to consider the 

existing engines as "new." Regardless, a proper cost and benefit analysis is 

necessary to determine appropriate EPA action related to "Glider Trucks." 

b. Removing gliders from the definition of a new motor vehicle will also mean that 

California wiD not need a Section 209 waiver to enforce its own glider standards, 

which are currently set as the same as federal standards, but could get tighter over 

time. At the same time, all other states would be free to set their own standards, 

also without first needing to request a waiver from EPA, setting up a patchwork 

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.- bup.:iwww tum; '''l/IJSSJ:l•;fihKtfmtntSfmN.'i1tl'-M\hivt1tk!JH'<stliHf•H:rutu•wntrHs: Mr 
51 


30463.041

Hon. Barrasso 

Hon. Carper 

May 10,2018 

Page 6 

of state standards for gliders. Would it be better to retain the federal standard or 

finalize the glider proposal that will create regulatory uncertainty and the potential 

for 50 different state standards for the industry? 

Response: 

It is always best to eliminate regulatory uncertainty and ensure that every state 

retains the ability to provide for the most cost-effective control strategies for its 

citizens. 

c. Does your state take advantage of EPA DERA grants and how has the program 

helped clean the air in Kentucky? 

Response: 

Yes. As a result of past awards, Kentucky school administrators were able to 

purchase hybrid school buses and reduce the impact of emissions on school 

children, staff, and parents. 

d. Should the federal government continue to focus on replacing and retrofitting 

dirty diesel engines, rather than putting dirty diesel engines back on the road? 

Why or why oot? 

Response: 

EPA and the federal government should continue to focus on reducing pollutant 

emissions that negatively impact public health and the environment. 

Senator Whitehouse: 

8. Do you support the proposed cuts to EPA programs funding state clean air initiatives? 

Response: 

No. State, local, and tribal air quality control agencies require stable and adequate 

funding to meet obligations under the Clean Air Act. 

9. Do you believe that climate change is occurring and that it is caused by human emissions 

of greenhouse gases? 

Response: 

My understanding is that concentrations of carbon dioxide in the atmosphere are 

increasing and human activities related to combustion contribute to the increase in carbon 

dioxide concentrations. 
52 


30463.042

Hon. Barrasso 

Hon. Carper 

May 10,2018 

Page 7 

Again, thank you for the opportunity to participate in the hearing, "Cooperative 

Federalism Under the Clean Air Act: Slate Perspectives." If you have further questions or 

require additional infonnation, please do not hesitate to contact me at your convenience. 

Sincerely, 

~@liw' Sean Alteri, Director 

Kentucky Division for Air Quality 
53 

Senator CAPITO. Thank you. 

Commissioner Baker. 

STATEMENT OF TOBY BAKER, COMMISSIONER, 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Mr. BAKER. Thank you, Chairman Capito, Ranking Member 

Whitehouse, and members of the Environment and Public Works 

Subcommittee on Clean Air and Nuclear Safety. 

For the record, my name is Toby Baker. I am a Commissioner 

of the Texas Commission on Environmental Quality, otherwise 

known as the TCEQ. 

The Texas Commission on Environmental Quality is the third 

largest environmental regulatory agency in the United States behind the EPA and California if you count their air control district 

model as one agency. 

We have close to 3,000 employees across 16 regional offices, with 

our largest regional office being located in Houston, as you may 

have guessed. By authority delegated to our agency, we regulate 

water quality, air quality, and waste in Texas. 

I’d like to first highlight a few facts about Texas that I believe 

were made possible through the tradition of cooperative federalism, 

which, as you know, was built into the Federal Clean Air Act and 

a number of other Federal regulatory statutes. 

Starting with amendments to the Clean Air Act in the early 

1990s, Texas, one of the largest coastal States, turned a corner in 

environmental regulation and has become one of the leading States 

in environmental success relative to our environmental challenges. 

We currently produce one-third of the Nation’s crude oil. Thirty 

percent of all refining capacity is located within our borders, and 

a quarter of all U.S. natural gas production comes from Texas. 

Balancing this, we also are the largest wind producing State in 

the U.S. with over 20,000 megawatts of capacity. Solar energy production is ramping up, and if you consider the projects we have in 

queue, we should have close to 3,500 megawatts of utility scale 

solar constructed or being built by 2019. To sum up, we produce 

and consume more energy than any other State. 

In addition, the population of Texas is rapidly increasing. Since 

2000 it is estimated that our population has grown by over 8 million. It is no secret that Texas is hot, and these 8 million newcomers to the State have no doubt discovered the benefits of air 

conditioning, which requires a significant amount of power. 

It is also no secret that Texans like their cars, and 8 million new 

Texans, moving primarily to already heavily populated areas, add 

a number of new vehicles to our transportation system. One could 

assume an increase in population, coupled with our robust manufacturing sector, would lead to increased emissions, but in reality 

the opposite has occurred. 

Since the late 1990s we have seen a dramatic drop in both NOx

emissions and ozone emissions. While we have occasional bouts 

with other criteria pollutants, ozone is our most pressing. 

Since 2000 we have been one of the top States in reducing ozone 

emissions. In fact, in the latest ranking of dirtiest cities by the 

American Lung Association, Texas does not have a city in the top 

10 while having 3 of the top 10 largest cities in the United States. 

54 

Given the fact that the Houston area is essentially the kitchen 

for a good portion of the U.S. and that it has prime ozone making 

weather, frankly, it is astounding. Our emissions in our major metropolitan areas are currently driven more by mobile sources than 

any point source. 

CO2 is worth mentioning as well. While Texas produces more 

CO2 than any other State, the per capita production, according to 

EIA, puts us at No. 14 when ranking the States. If we are objective 

about it, I would argue that we are a model for efficiency. 

What has led to our success? I would say a tradition of cooperative federalism that has allowed Texas to tailor its own unique solutions to our own unique problems, a market that has led to maximizing efficiency in the refining and power sectors, cleaner burning 

vehicles, and finally, incentives. 

I would like to address cooperative federalism more specifically. 

First and foremost, the benefits of cooperative federalism, done correctly, were on full display during our response to the worst natural disaster in recent memory for the State of Texas, Hurricane 

Harvey. 

Before and after Harvey made landfall, both EPA Headquarters 

and Region 6 coordinated closely with the TCEQ and other State 

agencies to ensure all necessary fuel waiver requests were processed as expeditiously as possible. 

As a result of this cooperation, requests were usually granted in 

a matter of hours compared to previous hurricanes, where such 

waivers would be processed over several days because the EPA 

took more of a wait and see approach. 

Similarly, EPA staff rapidly processed TCEQ’s request for No Action Assurance letters concerning vapor controls at gasoline terminals, tank tightness of transport trucks, and landing of floating 

roofs on gasoline storage tanks. 

EPA’s rapid response and close coordination with TCEQ in approving the fuel waivers and NAA letters helped ensure the flow 

of gasoline and diesel products throughout Texas and the United 

States. 

To be fair, the previous Administration also worked well with 

TCEQ in transitioning all of the greenhouse gas permitting under 

the Tailoring Rule from the EPA to Texas. Recognizing the ability 

of a particular State to handle the application load under a certain 

rule is yet another great example of how cooperative federalism 

should work in a national regulatory scheme. 

I notice that I am running out of time, so I will skip forward. 

At the same time that we have cooperative federalism where it 

works, sometimes it does not work. An example is the Clean Power 

Plan, which would have imposed significant economic and electric 

reliability strains on the State of Texas to attain emission reduction benchmarks in a very short timeframe that the State has consistently maintained would be met anyway under existing market 

conditions. 

Specifically, Texas is currently on pace to nearly hit the initial 

emissions reduction benchmark of the Clean Power Plan several 

years ahead of schedule, and all without the rule being in place. 

Finally, I am pleased to see, under this Administration, a return 

to the historical norm of a SIP oriented approach to Clean Air Act 

55 

enforcement and implementation. By diverting from a ‘‘FIP first’’ 

approach, the EPA has enabled individual States to implement and 

enforce Federal standards in a manner allowing for greater flexibility and efficiency. 

This, in turn, leads to both a greater diversity in problem solving 

methods that are tailored to each State’s natural environment, as 

well as more predictability and consistency in enforcement. I have 

examples of that, but I will leave those for later. 

That concludes my testimony. Thank you for having me here 

today. 

[The prepared statement of Mr. Baker follows:] 

56 


30463.043

Toby Baker 

Commissioner 

Texas Commission on Environmental Quality 

Austin, TX 

In his current role as Commissioner at Texas CEQ, Baker 

establishes overall agency direction and policy and makes final 

determinations on contested permitting and enforcement matters. 

Baker also serves as Governor Abbott's appointee to the Gulf 

Coast Ecosystem Restoration Council, represents Texas as the 

chair on the Gulf of Mexico Alliance Management Team, and 

serves on the Coastal Land Advisory Board. 

Prior to his appointment, Baker was a policy and budget advisor on energy, natural 

resources and agriculture issues for the Governor's Office, where he was also the 

liaison between the office and members of the Legislature, constituents, the Railroad 

Commission of Texas, the TCEQ, the Texas Parks and Wildlife Department, the Texas 

Department of Agriculture, and the Texas Animal Health Commission. He is a past 

natural resource policy advisor to Sen. Craig Estes, and the former director and clerk of 

the Texas Senate Subcommittee on Agriculture, Rural Affairs and Coastal Resources. 

Baker received a bachelor's degree from Texas A&M University, where he was a 

member of the Corps of Cadets, and a Master of Public Service and Administration from 

the Texas A&M George Bush School of Government and Public Service. He is also a 

graduate of the National Outdoor Leadership School and the Governor's Executive 

Development Program at the University of Texas LBJ School of Public Affairs. 
57 


30463.044

Senate Committee on Environment and Public Works 

Subcommittee on Clean Air and Nuclear Safety 

Hearing on Cooperative Federalism Under the Clean Air Act 

AprillO, 2018 

Commissioner Toby Baker, Texas Commission On Environmental Quality 

Thank you Chairman Capito, Ranking Member Whitehouse, and members of the Environment 

and Public Works Subcommittee on Clean Air and Nuclear Safety. For the record, my name is Toby 

Baker. I am a commissioner of the Texas Commission on Environmental Quality, otherwise known as 

the TCEO. and I am here to give the Texas perspective on cooperative federalism under the Clean Air 

Act. At the outset I would like to say that after my prepared testimony I am happy to answer any 

questions you may have, but due to ex parte laws I cannot discuss any ongoing permitting or 

enforcement matters that have not yet come before the commission. If you have any questions 

regarding any issue that I cannot discuss, I can have the appropriate member of our staff get back to 

you. 

The Texas Commission on Environmental Quality is the third largest environmental regulatory 

agency in the United States behind the EPA and California. We have close to 3,000 employees across 16 

regional offices, with our largest regional office being located in Houston as you may have guessed. By 

authority delegated to our agency, we regulate water quality, air quality, and waste in Texas. I'd like to 

first highlight several facts about Texas that I believe were made possible through the tradition of 

cooperative federalism, that as you know, was built into the federal clean air act and a number of other 

federal regulatory statutes. 

Starting with the amendments to the clean air act in the early 90s, Texas turned a corner in 

environmental regulation and has become one of the leading states in environmental success relative to 

our environmental challenges. We currently produce one-third ofthe nation's crude oil. Thirty percent 

of all refining capacity is located within our borders and a quarter of all U.S. natural gas production 

comes from Texas. Balancing this, we also are the largest wind producing state in the U.S. with over 

20,000 megawatts of capacity. Solar energy production is ramping up and, if you consider the projects 

we have in queue, we should have close to 3500 megawatts of utility scale solar constructed or being 

built by 2019. To sum up, we produce and consume more energy than any other state. 

In addition, the population of Texas is increasing rapidly. Since 2000, it is estimated that our 

population has grown by over 8 million. It is no secret that Texas is hot, and these 8 million newcomers 

to the state have no doubt discovered the benefits of air conditioning. It is also no secret that Texans 

like their cars, and 8 million new Texans, moving primarily to already heavily populated areas, adds a 

number of new vehicles to our transportation system. One could assume an increase in population 

coupled with our robust manufacturing sector would lead to increased emissions, but in reality the 

opposite has occurred. 

Since the late 90s, we have seen a dramatic drop in both NOx emissions and Ozone emissions. 

While we have occasional bouts with other criteria pollutants, ozone is our most pressing. Since 2000 we 

have been one of the top states in reducing ozone emissions. In fact, in the latest ranking of dirtiest 

cities by the American lung Association, Texas does not have a city in the top 10. Given the fact that the 

Houston area is essentially the kitchen for a good portion of the US, and that it has prime ozone making 
58 


30463.045

weather, it's frankly astounding. Our emissions in our major metropolitan areas are currently driven 

more by mobile sources than any point source. C02 is worth mentioning as well. While Texas produces 

more C02 than any other state, the per capita production, according to EIA, puts us at 14 when ranking 

the states. If we are objective about it, I would argue that we are a model for efficiency. 

So what has led to our success? At a high level, I believe it can be attributed to, among other 

things, (1) a tradition of cooperative federalism that has allowed Texas to tailor its own unique solutions 

to our own unique problems, (2) a market that has led to maximizing efficiency in the refining sector, 

and (3) cleaner burning vehicles. 

And since cooperative federalism is the topic of this panel, I believe is a pivotal component of 

the national environmental regulatory framework. Congress, in enacting many of our major 

environmental laws including the Clean Air Act, has chosen to delegate the implementation and 

enforcement of those laws to the states, which have the flexibility and regional expertise necessary to 

fairly and efficiently put those laws into effect. My agency, the TCEQ, is the delegated agency for the 

majority of environmental programs in Texas and we have seen over the years how cooperative 

federalism has worked and how it could be improved. 

First and foremost, the benefits of cooperative federalism done correctly were on full display 

during our response to the worst natural disaster in recent memory for the State of Texas-Hurricane 

Harvey. Before and after Harvey made landfall both EPA headquarters and Region 6 coordinated closely 

with the TCEQ and other state agencies to ensure all necessary fuel waiver requests were processed as 

expeditiously as possible. As a result of this cooperation, requests were usually granted in a matter of 

hours. Compare that to previous hurricanes, where such waivers would be processed over several days 

because the EPA took more of a "wait and see" approach. Similarly, EPA staff rapidly processed TCEQ's 

request for No Action Assurance (NAA) letters concerning vapor controls at gasoline terminals, tank 

tightness of transport trucks, and landing of floating roofs on gasoline storage tanks. EPA's rapid 

response and close coordination with TCEQ in approving the fuel waivers and NAA letters helped ensure 

the flow of gasoline and diesel products throughout Texas and numerous other states. 

The previous administration also worked well with TCEQ in transitioning all of the Greenhouse 

Gas permitting under the Tailoring Rule from the EPA to Texas. Recognizing the ability of a particular 

state to handle the application load under a certain rule is yet another great example of how 

cooperative federalism should work in a national regulatory scheme. 

While these are some examples of cooperative federalism under the Clean Air Act done 

correctly, we have also seen the opposite. For example, under the previous administration the EPA 

often promulgated new National Ambient Air Quality Standards (NAAQS) before plans had been fully 

implemented for the existing NAAQS. And in the rush to do so, the EPA routinely failed to issue timely 

guidance to implement the NAAQS. This causes a problem for states that have a multiyear planning and 

approval process for developing a State Implementation Plan (SIP) because the EPA would then 

disapprove a SIP that did not follow guidance issued after the SIP process is underway or sometimes 

even after it is complete. The goal of cooperative federalism is to avoid this absurd and wasteful result. 

Another goal of cooperative federalism is to ensure federal Clean Air Act rulemaking is timely. 

Meaningful cooperation with the states can avoid regulations that are not appropriate to current 

circumstances in a given state or region. Take, for example, the Clean Power Plan, which would have 
59 


30463.046

imposed significant economic and electric reliability strains on the State of Texas to attain emission 

reduction benchmarks in a very short time frame that the state has consistently maintained would be 

met anyway under existing market conditions. Specifically, Texas is currently on pace to nearly hit the 

initial emissions reduction benchmark of the Clean Power Plan several years ahead of schedule-and all 

without the rule being in place. This is directly attributable to low cost natural gas and saturation of 

wind generation into our competitive power market. 

Nevertheless, I am pleased to see under this administration a return to the historical norm of a 

SIP-oriented approach to Clean Air Act enforcement and implementation. By diverting from a "FIP first" 

approach, the EPA has enabled individual states to implement and enforce federal standards in a 

manner allowing for greater flexibility and efficiency. This, in turn, leads to both a greater diversity in 

problem solving methods that are tailored to each state's natural environment, as well as more 

predictability and consistency in enforcement. Our agency's Texas Emission Reduction Program orTERP, 

is a perfect example of a state exercising the freedom to solve air pollution issues in its own creative 

way. That program provides a financial incentive to address emissions from mobile sources through 

accelerated fleet turnover, and it has reduced roughly 180,000 tons of NOx from mobile sources-which 

is important because, as referenced earlier, the majority of NOx emissions in Texas comes from mobile 

sources. 

That concludes my testimony. I want to thank you for the opportunity to visit with you today. 

am available to answer any questions you may have. 
60 


30463.047

Senate Committee on Environment and Public Works 

Subcommittee on Clean Air and Nuclear Safety 

Hearing entitled, "Cooperative Federalism Under the Clean Air Act: SIJlte Perspectives. n 

April 10, 1018 

Questions for the Record for Commissioner Baker 

Chairman Barrasso: 

l. Commissioner Baker, many of the issues states face when implementing the Clean Air 

Act stem from EPA's consistent inability to meet statutorily mandated deadlines. 

a. Can you explain how this problem interferes with the planning process on the 

state level, and leads to wasted resources? 

b. Should Congress change the deadlines? 

Historically, National Ambient Air Quality Standards (NAAQS) revisions and their 

associated increase in regulatory requirements have often been accompanied by 

belated or a complete lack of implementation guidance from the United States 

Environmental Protection Agency (EPA) and/or expedited timelines for review and 

implementation for states. To reduce uncertainty for states throughout the state 

implementation plan (SIP) planning process, and to ensure that resources are 

properly allocated, states must receive thorough guidance from the EPA in a timely 

manner. 

For the 1008 ozone NAAQS, the EPA proposed a SIP requirement rule on June 6, 

1013, approximately oue year after final designations were made. The EPA did not 

finalize the rule until March 6, lOIS, almost two years following the proposal and 

only four months prior to the July lO, lOIS submittal deadUne for attainment 

demonstration and reasonable further progress (RFP) SIP revisions for moderate 

areas. As a result, the Texas Commission on Environmental Quality (TCEQ) had to 

begin the technical work to develop the SIP revision prior to guidance even being 

proposed. The SIP revision was proposed for the DaUas-Fort Worth (DFW) 

nonattainment area in December 1014 and the rule was final in March lOIS, 

creating uncertainty in the planning process. 

When the 1008 ozone standard SIP requirements rule was finaUzed, the attainment 

year for moderate nonattainment areas was changed from 1018 to 1017 due to a 

D.C. Circuit Court ruling in late 1014. Due to the timing of the court ruling and the 

EPA's final SIP requirements rule, it was not possible to complete all work 

necessary for the DFW attainment demonstration SIP revision to demonstrate 

attainment in 1017 prior to the due date for this SIP revision. To meet the July 

lOIS statutory deadline, the TCEQ had to submit the attainment demonstration for 

a 1018 attainment year that had already been proposed and had to invest 

additional time and resources to develop and submit a new attainment 

demonstration SIP revision the following year for the revised 1017 attainment year. 

In addition, the fmall008 ozone standard SIP requirements rule also eliminated 

the option to transfer creditable volatile organic compounds (VOC) reductions 

Page 1 of9 
61 


30463.048

between county groups for demonstrating RFP. Because the DFW RFP SIP 

revision that was adopted in 2015 used this option, the TCEQ had to correct the 

adopted DFW RFP analyses to remove the VOC reduction transfer and develop 

and submit a technical supplement the foUowing year to address this 

implementation change. 

To ensure efficient and cost-effective implementation of the NAAQS, a presidential 

memorandum issued on Aprilll, 2018 directed the EPA Administrator to issue 

timely implementation rules and guidance when establishing or revising NAAQS, 

specifying that such rules and guidance be issued concurrently the with new or 

revised standards and that they specify the information that is relevant to the 

submission and consideration of SIPs. 

Aiso, attached is a TCEQ response to questions from Congressmen Olson and 

Latta concerning NAAQS review and implementation issues. 

2. Commissioner Baker, in South Coast Air Quality Management District v. EPA, the U.S. 

Court of Appeals for the D.C. Circuit invalidated EPA's approach to revoke the 1997 

ozone standard and instead implement the more stringent 2008 ozone standard. If 

ultimately upheld, this decision has significant implications for state regulators such as 

yourself because you would have to conduct separate modeling and permitting to meet 

both of these standards until EPA resolves the issue. 

a. Do you believe this decision will force you to use your limited resources to 

conduct duplicative and unnecessary modeling and permitting work? 

b. Will this additional burden result in greater environmental protection? 

c. What is the practical result of this decision on highway projects, which may 

require transportation conformity determinations by the state? 

d. How could this decision affect other Clean Air Act programs, such as New Source 

Review? 

e. Is Congressional action needed to address the uncertainty created by the decision? 

While the direct result of the decision does not appear to create additional 

photochemical modeling work for the TCEQ, a significant amount of emissions 

modeling work is anticipated to be needed to address vacatur of the EPA's antibacksliding provisions in its implementation rule for the 2008 ozone standard. Part 

of this work will be duplicative for the TCEQ because redesignation substitutes 

were submitted to the EPA for the 1997 as weD as the one-hour ozone standard for 

the Houston-Galveston-Brazoria (HGB) and DFW areas. These redesignation 

substitutes included most of the substantive elements of a formal redesignation 

request, including run emissions inventory projections for a 10-year period after 

EPA approvaL 

The TCEQ submitted, and the EPA approved, three redesignation substitutes, each 

taking more than 10,000 hours of staff time to complete. These efforts were in 

addition to the submission of a "termination determination" request made under 

Pagel of9 
62 


30463.049

previous EPA policy guidance to remove the requirement for collecting FCAA, §185 

fees for the HGB area, later determined to be an invalid alternative. If the ruling is 

upheld and the redesignation substitutes are found to be invalid, the TCEQ would 

need to resubmit much of the same information, including new emissions inventory 

projections, in formal redeslgnation requests to address anti-backsliding 

requirements for both the DFW and HGB areas for both previously revoked 

standards. If upheld, the ruling may also require the TCEQ to submit formal 

redesignation requests for the Beaumont-Port Arthur and El Paso areas. Each of 

these SIP revisions would take more than 10,000 hours of staff and contractor time 

to complete for each area. It is unclear what additional environmental benefit will 

be gained from requiring this effort, given that all of these areas are currently 

attaining both of these revoked standards. 

The requirements of the transportation conformity process, as it currently applies, 

could result in delays for transportation projects if the court ruling is upheld. While 

the TCEQ cannot be certain of the practical result of this decision on highway 

projects, and we would defer to Texas Department of Transportation (TxDOT) for 

any estimates, the decision could result In affected areas being required to 

demonstrate transportation conformity for several applicable NAAQS, each with 

potentially applicable motor vehicle emissions budgets. Each applicable budget 

being addressed in an area's transportation conformity demonstration requires a 

budget-year regional emissions Inventory for comparison with the applicable motor 

vehicle emissions budget. Adding budgets to the process from previously revoked 

standards will require additional emissions inventories for different analysis years, 

which would result in additional work for the metropolitan planning organizations 

and state air quality planning entities (such as the TCEQ) subject to conformity 

requirements, including analysis and documentation. 

Depending on EPA's response to the outcome of the appeals of the decision, the 

South Coast opinion could result in TCEQ Air Permits Division's reevaluation of 

numerous pending permit applications for federal new source review nonattainment 

permit applicability. Air quality permitting major source thresholds, significance 

levels, and emission offset requirements are determined by the designation and 

classification level that applies in a nonattainment area. Some areas in Texas were 

classified at more stringent classification levels under the revoked one-hour and 

1997 ozone NAAQS than currently applicable for the 2008 ozone NAAQS. 

However, at the current time, the TCEQ Is waiting for·the mandate to be issued by 

the D. C. Circuit Court of Appeals, and to see what EPA's response will be at that 

time, such as issuance of guidance or rulemaking. Judgment in the South Coast 

case will be effective upon issuance of the mandate which is required to be issued 

seven days after the court denies EPA's petition for rehearing or motion for stay of 

the mandate, whichever is later. The court can shorten or extend this time. 

Depending upon the outcome of the case, If a party petitions the U.S. Supreme 

Page 3 of9 
63 


30463.050

Court for further review, they can request that the mandate be stayed, but the D.C. 

Circuit does not have to grant the request. 

Congressional action to clarify the requirements for states fo1· revoked standards 

could provide certainty for all interested parties, federal and state governmental 

entities, regulated industries, and the public. 

3. Commissioner Baker, I understand that confonnity requirements have already caused 

significant delays for highway projects that have cost your state over $62 million. How 

can the transportation confonnity program be improved to minimize delay and 

unnecessary project expense without negative environmental impact? In your view, 

should Congress amend the Clean Air Act to clarify that transportation confonnity 

requirements apply only to the most recent NAAQS for each pollutant to provide longtenn certainty to states and project developers? Are other changes needed? 

The process of demonstrating compliance with transportation conformity 

requirements can take an affected area several months, and this can delay 

transportation projects, as TxDOT found in research it conducted for a 2017 

proposal to reform the Federal Clean Air Act (FCAA} transportation conformity 

requirements. TxDOT's proposal included suggested reforms to both process and 

applicability. 

In addition to TxDOT's 2017 reform proposal, a bill was introduced to the United 

States Senate on August 3, 2017 that would reform transportation conformity 

requirements, Senate Bill1756- Rebuild America Now Act. The reforms include 

removing applicability for marginal nonattainmcnt areas and maintenance areas, 

and removing applicability for any affected area unti1180 days after EPA approves 

the motor vehicle emissions budget applicable for that standard. Transportation 

conformity requirements currently apply to all areas designated nonattainment, 

including marginal areas, or maintenance by the EPA. Conformity also currently 

applies within one year of designation whether an affected area has an approved 

motor vehicle emissions budget or not. The reforms included in Senate Bill1756 

would also apply transportation conformity requirements only to the most recently 

issued NAAQS for a pollutant. 

Transportation conformity reforms are also included in the Legislative Outline for 

Rebuilding Infrastructure in America, the White House framework for rebuilding 

infrastructure in America. Specifically, the fr11mework outlines tr11nsportation 

conformity reforms related to est11blishing motor vehicle emissions budgets before 

conformity applies in an affected area and applying conformity requirements only 

to the most recently issued NAAQS for a pollutant. 

4. Commissioner Baker, EPA recently issued guidance encouraging more deference to 

states on enforcement actions. Do you think that guidance is a step in the right direction, 

and would you suggest other improvements? 

Page4 of9 
64 


30463.051

Yes, close coordination with us is always helpful. 

S. Commissioner Baker, can you explain some of the problems with modeling 

nonattainment designations? Isn't it preferable to use real world data? 

The TCEQ supports the use of ambient air quality monitoring data rather than modeling 

data for making nonattainment designations and identifying nonattainment and 

maintenance receptors. The TCEQ does not support the use of modeling as the basis for 

designations or the sole basis for identifying receptors for transport. Modeling is a useful 

predictive tool to estimate and evaluate air quality, but have inherent inaccuracies and 

limitations. Such actions have serious consequences to industry, the economy of an area, 

its citizens, and the state. Using modeling for these actions could result in major capital 

expenditures for industry to "fix" something that may not be a real problem. To base these 

actions on modeling is inconsistent with historical and present EPA policies. For example, 

the EPA does not redesignate areas to attainment when an area models attainment as part 

of an attainment demonstration SIP. The EPA uses monitoring data to verify attainment 

before redesignating. 

Ranking Member Carper: 

Please provide a response to each question, including each sub-part. 

6. In the President's EPA budget for fiscal year 2019, there are deep cuts to EPA programs, 

especially for funds that help assist state air programs1

• What would these budget cuts 

mean for your state if Congress adopted the President's budget for fiscal year 2019? 

The following information Is not a direct answer to #6, rather it Is a summary regarding the 

funding the TCEQ air programs expect to receive from EPA in FY19. 

TCEQ receives Section lOS performance partnership grant (PPG) funding that primarily 

supports national air initiatives associated with air monitoring, modeling, emissions 

inventories data collection, mobile source activities, compliance inspections, enforcement 

and complaint response, assessment and planning activities, and five air pollution control 

programs in non-attainment areas via pass-through grants from TCEQ. 

Expected F¥19 Federal: $6,900,000 

The Texas Particulate Matter ofl.S Microns or Less (PMl.S) Ambient Air Monitoring 

Program was developed to provide data that may be used to determine compliance with the 

national ambient air quality standard (NAAQS) as required by the Federal Clean Air Act. 

PM2.S special purpose monitors (SPM) are operated to provide additional air quality data 

for analysis and modeling. 

Expected F¥19 Federal: $1,686,549 (based on F¥18 award) 

l https:/fwww epa.soy/p!Arum4budwtfv2012 

Page 5 of9 
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30463.052

7. In your testimony, you mentioned that most of Texas's current air pollution problems 

stem from transportation. 

a. How important are strong federal standards for light- and heavy duty vehicles for 

cleaner air in Texas? 

From 1999 to 2018, it is estimated that tile total vehicle miles traveled (VMT) in Texas llas 

grown by 30% while on-road NOx, VOC, and carbon monoxide (CO) have decreased by 

79°A., 69%, and 70%, respectively, due to tile fleet turnover effects and tile associated 

Federal tailpipe emission standards for botllligbt and heavy-duty vehicles. By 2028, VMT 

is projected to grow from 19991evels by 51% with on-road NOx, VOC, and CO declining 

by 90%,82%, and 80%, respectively. 

On-road vehicles are tile primary source of ozone NOx emissions in most metropolitan 

areas. For example, on-road NOx emissions in DFW were rougllly 526 tons per day (tpd) 

in 1999 and estimated at 106 tpd today, wllicll is an 80% decline of 420 tpd due to fleet 

turnover. For comparison context, tills 420 tpd reduction is over five times larger than tile 

83 tpd ofNOx emitted by aU DFW area electric generating units (EGUs) back in 

1999. Ongoing fleet turnover effects are expected to reduce total on-road NOx in DFW 

down to 50 tpd by 2028, wllicll would be a 91% decrease from 1999. See attached 

graph/slide (Texas On-Road Vehicle Miles Traveled (VMT) and NOx Emission Trends 

from 1999 tllrougll2050). Most of tile NOx emissions in Texas' two ozone nonattainment 

areas are associated with mobile emissions- DFW 78% and HGB 67%. 

b. How important are programs like the Diesel Emission Reduction Act (DERA) for 

cleaner air in Texas? 

In Texas, tile state-funded Texas Emissions Reduction Plan (TERP), wllicll pre-dates tile 

implementation of tile DERA program, has provided over $1 biUlon since 2001 to repower, 

replace, or upgrade heavy-duty on-road vellieles, non-road equipment, marine vessels, 

locomotives, and certain stationary engines. The TERP is effective in that it targets mobile 

sources that emit the majority of NOx in the state's ozone nonattainment areas. The state 

does not have direct regulatory control over these sources and a voluntary incentive 

program such as TERP has been an important tool in efforts to meet the NAAQS for 

ozone. The DERA program provides voluntary fmaneial incentives for projects similar to 

the TERP and the TCEQ supports efforts to address mobile sources of emissions that are 

difficult to regulate at the state level. 

c. Are you concerned about EPA's actions to relax mobile source emission 

standards? If not, why not? 

Greenhouse gas standards are not a consideration in TCEQ's planning for addressing 

NAAQS compliance. 

Page 6 of9 
66 


30463.053

8. As I mentioned in the hearing, Senator Udall and I sent a letter to EPA regarding 

concerns about a proposal that would allow some of the dirtiest heavy-duty diesel trucks, 

called glider trucks, to circumvent clean air cleanups. Glider trucks look like new trucks 

outside, but are equipped with old, high-polluting diesel engines on the inside. As we 

state in the letter, according to internal agency research- not released until after EPA 

published this proposal - a new 2017 glider truck can emit up to 450 times the particulate 

matter (PM) pollution, and up to 43 times the nitrous oxide (NOx) pollution, of model 

year 2014 and 2015 trucks. Other EPA analyses concluded that, if left unregulated, glider 

vehicle emissions could prematurely kill thousands of people, and increase instances of 

lung cancer, chronic lung disease, heart disease, and severe asthma attacks. This is 

additional pollution that will be emitted in my state, in your state and states across the 

country. I fear that if this proposal went final, it could further burden states already 

struggling to meet ambient air health standards. 

a. Do you support the EPA's November 16, 2017 proposal to repeal air emission 

standards for glider trucks? If so, why? If not, why not? 

Based on the summary of the proposed EPA action in the November 16, 2017 edition of 

the Federal Register (Vol. 82, No. 220) the EPA is basing its action on an interpretation 

ofthe Federal Clean Air Act (FCAA) under which it would not have authority to 

regulate glider vehicles, glider engines, or glider kits under CAA section 202(a)(1). The 

TCEQ has not undertaken its own legal analysis of the issue and, therefore, we would 

not be able to comment on the reasoning behind the EPA's decision to repeal the 

standards. · 

b. Are you as troubled as I am that this proposal appears to largely benefit a single 

company? If not, why not? 

The EPA's reasoning for proPosing the repeal of the standards appean to be based on 

its interpretation of its authority under the FCAA. The TCEQ is not providing an 

opinion regarding the legal basis for that determination or how the decision may 

benefit particular entities. 

c. Comments on the glider proposal submitted by the Diesel Emissions Reduction 

Act (DERA) Coalition, which is a broad coalition of environmental, public health, 

industry and state groups who support clean diesel, included the following 

statement: 

"We are concerned that EPA's decision to encourage the continued 

proliferation of older engines through the glider industry would increase 

·emissions from medium and heavy-duty vehicles and undermines the 

Page 7 of9 
67 


30463.054

work of the Coalition and cooperative federalism with the EPA and 

states."3 

Do you share the DERA Coalition's concerns? If not, why not? 

The TCEQ has not analyzed the impacts, if any, of the availability of glider kits in 

Texas on the air quality in the state. 

d. Removing glid~rs from the definition of a new motor vehicle will also mean that 

California will not need a Section 209 waiver to enforce its own glider standards, 

which are currently set as the same as federal standards, but could get tighter over 

time. At the same time, all other states would be free to set their own standards, 

also without first needing to request a waiver from EPA, setting up a patchwork 

of state standards for gliders. Would it be better to retain the federal standard or 

finalize the glider proposal that will create regulatory uncertainty and the potential 

for 50 different state standards for the industry? 

The TCEQ has not analyzed the impacts, if any, on the ability for states to set their own 

standards without needing an EPA waiver. However, the difference in NOx emissions from 

a Glider Kit using a remanufactured 2006 diesel engine and drive train in use over a 10-

year period instead of a new 2018 diesel tractor-trailer combination haul truck is the new 

diesel truck would emit approximately 92% less NOx than the glider kit and engine over a 

10-year period. This is based on an assumed annual usage of 60,000 miles per year. This 

would equate to 4 total tons more NOx in 10 years or 0.4 tons more NOx per year. The 

TCEQ does not have any estimates on how many glider kits may be purchased in Texas if 

the EPA rules are changed. 

Glider Kit w/2006 remanufactured engine and drivetrain: 

NO,: 2.375 (g/bhp-hr) 

Assumed Usage: 60,000 miles/year 

Period of Use: 10 years 

New 2018 Diesel Truck: 

NO,; 0.2 (g/bhp-hr) 

Assumed Usage: 60,000 miles/year 

Period of use: 10 years 

e. Should the federal government continue to focus on replacing and retrofitting 

dirty diesel engines, rather than putting dirty diesel engines back on the road? 

Why or why not? 

The TCEQ supports efforts to replace, repower or retrofit older diesel engines 

through programs such as the TERP program, which has funded over$] billion in 

projects since 2001 to replace or upgrade mobile sources of emissions through 

voluntary incentives. As stated in response to earlier questions, the TCEQ is not 

\ http:/{\vv.'\v.lung.orgtnssetsfdocumenlS/ndvocacy-archive/dera~ooaljtimN:ommcnts·re.pdl 

Page 8 of9 
68 


30463.055

providing a opinion on the legal basis for EPA's determination that it lacks anthority 

under the FCAA to impose the standards on glider kits. 

Senator Whitehouse: 

9. You are on the record as stating that "the science is still out" on climate change. Given 

the unprecedented damage caused by Hurricane Harvey as well as scientific research 

demonstrating that sea levels along the Texas coast are rising faster than almost anywhere 

else in the country- up to six times faster than they were I 00 years ago - do you still 

believe that there is no scientific consensus about the nature and causes of climate 

change? 

Greenhouse gas emissions are regulated by the TCEQ through the Prevention of 

Significant Deterioration and Title V Operating air permit programs, both required by 

the Clean Air Act. 

10. Do you support the proposed cuts to EPA programs funding state clean air initiatives? 

I am unaware of the impact of the allocations at this time. 

11. Do you believe that climate change is occurring and that it is caused by human emissions 

of greenhouse gases? 

Greenhouse gas emissions are regulated by the TCEQ through the Prevention of 

Significant Deterioration and Title V Operating air permit programs, both required by 

the Clean Air Act. 

Page 9 of9 
69 


30463.056

Responses to Questions in Congressmen Olson and Latta's February 12, 2016 Letter 

1) What are some aspects of the Clean Air Act that you find especially useful when it 

comes to implementation of the NAAQS? 

As an overall comment, there are parts of the Clean Air Act that could be useful 

but due to the way the EPA implements the act these aspects are not as useful as 

they could be. 

• The flexibility to use market-based approaches to reduce emissions and 

comply with certain requirements of the Act. 

• The ability to exclude exceptional events from monitor data. However, the 

EPA has not approved many of these events for Texas and often the EPA is 

slow in their response so the state has to continue as if there were no 

exceptional events. 

• The ability for states to demonstrate that a nonattainment area would 

meet the NAAQS but for emissions from areas outside of the United 

States. 

2) What provisions or requirements [does] Texas have more difficulty with? 

• Required five-year review of the NAAQS: When the EPA revises the 

NAAQS frequently, as they have done with ozone recently, there are 

overlapping standards with differing nonattainment requirements and 

sometimes differing nonattainment counties for each standard. This, 

coupled with delays in implementation of the NAAQS leads to burdensome 

and duplicative SIP planning for states and confusion among the regulated 

community and the public. 

• Mandated ozone precursor emissions reduction requirements for rate of 

progress (ROP) and reasonable further progress (RFP): Currently, Section 

182 requires that newly designated ozone nonattainment areas classified 

as moderate or above must reduce volatile organic compound (VOC) 

emissions by 1596 within 6 years of the area's nonattainment designation. 

All ozone nonattainment areas classified as moderate or above are 

required to reduce VOC and/or nitrogen oxide (NOx) emissions by an 

average of 3% per year through the area's attainment deadline. As 

reductions in emissions continue to occur from state and federal air 

regulations and as the EPA continues to lower the ozone standard, these 

required emissions reductions will become more difficult to achieve. 

Further, the required 1596 reduction in VOC emissions does little to 

improve air quality in Texas since reductions in NOx are most effective in 

reducing ozone in most areas of the state. 

3) How smoothly can states like yours transition from one NAAQS to another for the 

same pollutant (i.e. from 75ppb ozone to 70 ppb), and if there are difficulties what 

might make this transition more achievable? 

• Transition from one NAAQS to another is difficult, especially when 

guidance and rulemaking necessary for states to plan for transitioning to 

the new NAAQS is not provided in a timely manner. 
70 


30463.057

Responses to Questions in Congressmen Olson and Latta's February 12, 2016 Letter 

There is little direction in the Clean Air Act that addresses how the EPA 

and states should transition from one NAAQS to another. Provisions for 

transition from one NAAQS to another and, in particular, a schedule that 

gives states enough time to plan for a revised standard and requires the 

EPA to revoke the previous standard in a timely manner would be useful. 

4) What additional authority or procedural change would be most effective in helping 

Texas achieve clean air more efficiently? 

• Require the EPA to develop implementation regulations and guidance 

before states are required to begin development of revisions to their SIPs 

to comply with a new or revised NAAQS. 

• Allow states to demonstrate that an area would meet the NAAQS but for 

emissions from outside the United States during the designations process 

so that states aren't required to develop nonattainment plans for an area 

that would otherwise be meeting the NAAQS. 

• Require the EPA to act on exceptional events requests in a timely manner. 

The EPA should respond to the requests within six to nine months (see 

attached response to Representative Olson regarding exceptional events). 

When disapproving an exceptional event request, the EPA should also be 

required to provide a level of proof that is reasonable or the equivalent of a 

preponderance of evidence, rather than what amounts to a burden of 

proof, that could be considered either beyond reasonable doubt or beyond 

a shadow of doubt. 

• Change the Act to sync planning and implementation obligations for 

interstate transport with nonattainment planning and implementation 

obligations. Interstate transport requirements should be finalized at least a 

year before attainment demonstrations are due so as to allow state's 

attainment demonstrations to incorporate this information to avoid local 

or federal over-control due to these requirements not being synchronized. 

• The current three-year intervals between attainment deadlines for ozone 

nonattainment areas classified as marginal, moderate, and serious should 

be changed to six-year intervals. If an area does not meet an attainment 

date and is bumped up to the next classification, states often have less 

than 3 years (often 2) to conduct analysis to determine reductions needed, 

develop a new future case modeling scenario, develop any additional 

control strategies, have stakeholder meetings, propose and adopt rules and 

a SIP revision (which often takes a year by itselO, and then give industry 

adequate time to comply (often 6-24 months), and then have the emission 

reductions show up in a 3-year average of monitoring data. The federal 

system of reclassification sets states up to fail in bump up situations. 

States should not be penalized or expected to ask for voluntary double 

bump ups and bear the associated impacts on permitting and other actions 

just to compensate for an unwieldy FCAA requirement. 
71 


30463.058

Responses to Questions in Congressmen Olson and Latta's February 12, 2016 Letter 

• Change the Act to require the EPA to determine attainment and 

nonattainment designations only through the use of monitoring data 

rather than modeling data. The magnitude and impacts of such a decision 

should require that any nonattainment problem be known rather than 

predicted. 

30463.059

iii 

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Texas On-Road Vehicle Miles Traveled (VMT) an

NOx Emission Trends from 1999 through 2050 

Geographic 1999 2018 2023 2028 

2,800 Areo 

10-County DFW 526.2€ 106.3 68.4 49.89 

2,600 8~County HGB 386.0€ 85.2 55.1 40.2 

2,400 8·County San Antonio 174.2 38.S 24.2 17.11 

5-County Austin 113.4! 27.1 17.3 12.4( 

2,200 Remaining 223 Counties 1,418.6 293.7 181.65 129.96 ~2,000 254-County Texas 2,618.6 550.9 346.7 249.S 

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Quality Division • Texas On-Road Emission Trends from 1999 for VMT, NOx, VOC, and CO • Chris Kite • May 1, 2018 
73 

Senator CAPITO. Thank you. 

Mr. Rodriguez. 

STATEMENT OF MATTHEW RODRIGUEZ, CALIFORNIA SECRETARY FOR ENVIRONMENTAL PROTECTION, CALIFORNIA 

ENVIRONMENTAL PROTECTION AGENCY 

Mr. RODRIGUEZ. Thank you, Chair Capito, Ranking Member 

Whitehouse, and other Subcommittee members for inviting me to 

testify. 

I am Matthew Rodriquez, Secretary of the California Environmental Protection Agency. I will describe how the Federal-State 

partnership created in the Clean Air Act has provided an extraordinarily successful example of cooperative federalism. 

Since the Clean Air Act was comprehensively amended in 1970 

emissions of the Nation’s most common air pollutants have fallen 

by an average of 70 percent, even as our economy grew by 246 percent. By 2020 the Act’s economic benefits will total $2 trillion. 

The Act has spurred the use of clean technologies that drive 

business opportunity. New refinery equipment reduces waste and 

improves worker safety and also improves the health of people in 

nearby neighborhoods. 

Idle reduction and electric vehicle technologies for cars, trucks, 

and school buses have cut fuel costs, engine wear, and greenhouse 

gas and smog emission. 

Cooperative Federal and State efforts have built this record of 

achievement. The Federal Government provides minimum standards and resources to States. States tailor solutions for their individual communities. 

Unfortunately, today this relationship has been put in jeopardy. 

USEPA, through a series of recent hasty and ill conceived actions, 

is attempting to weaken landmark safeguards with the result that 

the States have been forced to spend resources to fill the gap. I will 

provide several examples and have provided more in my written remarks. 

In adopting the Clean Air Act, Congress gave California the option to develop its own emission standards and have other States 

to adopt them as well because California has technical expertise 

and experience and could drive innovation. 

Using this framework, 13 States—including California—automakers, and the Federal Government operated a coordinated national program to set rigorous and fair standards for greenhouse 

gases and fuel economy for cars and trucks. 

USEPA’s findings last year show this collaboration has been very 

successful. It is estimated that we will save roughly 1.2 billion barrels of oil, cut greenhouse gas emissions by over half a billion metric tons and save the average consumer thousands of dollars over 

a vehicle’s life. Moreover, these standards have helped U.S. automakers stay competitive in the global market. 

It is deeply disappointing that the Administration recently announced its intention, without meaningfully consulting with its 

partner States, to weaken and potentially dismantle this program. 

The result is huge uncertainty for industry and huge risks for the 

public. 

74 

We are prepared to take action as necessary, including legal action, to protect this program and restore the balance to this cooperative relationship. 

Similarly, the Clean Air Act gives USEPA the authority, indeed 

the responsibility, to fight global warming and control greenhouse 

gases. Using this authority, the agency developed a Clean Power 

Plan through a transparent process to set attainable greenhouse 

gas reduction targets by 2030. 

The plan offers an array of State planning options to meet these 

targets. With a plan in place, States were working collectively on 

implementation strategies. The Trump administration’s proposal to 

repeal the Clean Power Plan threatens to curtail this progress and 

shirks its responsibility under the Act. 

Many States—including California—are stepping in with their 

own programs to reduce greenhouse gas emissions. Without Federal leadership, we lack a national vision to modernize our power 

sector and respond to climate change. 

Federal-State cooperation is also at the core of our national program to make sure our air meets basic standards to protect public 

health. Ordinarily, USEPA sets science based maximum levels for 

air pollution. States then develop plans to maintain these thresholds. 

These standards are critical because smog can trigger asthma attacks, worsen heart conditions, and damage agricultural production. 

The current EPA administration, however, has refused to designate areas in compliance or not in attainment with Federal 

standards, and instead, announcing an extended delay before even 

starting this process. 

When 15 States and the District of Columbia filed suit over this 

illegal step, USEPA withdrew this formal delay, but still did not 

do anything. We had to go to court again to require USEPA to do 

its job. 

States rely on our Federal partners to ensure that factories and 

power plants have strong pollution controls. However, just a few 

months ago the USEPA revoked the once-in, always-in policy that 

ensures that major sources of toxic air pollution are all subject to 

strict controls. These toxic air pollutants include lead, mercury, and 

arsenic, which can cause cancer and damage the nervous system. 

Under the new policy, these pollution sources can drop out of the 

program and increase their emissions again. States again will have 

to do their best to develop programs to clean and protect the air. 

It means diverting resources that could address other public health 

threats. 

Achieving the goal of clean air is about protecting our communities. We achieve this goal most effectively in partnerships with 

the public, with industry, and with the Federal administration. 

The key to success is a strong and vigorous EPA. This is why we 

appreciate Congress’ resistance to proposed budget cuts to the 

agency and its core programs, including its grant programs. It is 

why we also appreciate the Federal workers who have stayed with 

the program through this period of uncertainty. 

This will not be enough if USEPA continues to walk away from 

its responsibilities. If they do, the States will do what they must 

75 

to protect the health of our people, our economies, and our environments. 

We will use all our available tools to ensure that the USEPA is 

again there to work with us and not against us. 

Thank you very much. 

[The prepared statement of Mr. Rodriguez follows:] 

76 


30463.060

Matthew Rodriquez 

California Secretary for Environmental Protection 

California Environmental Protection Agency 

Sacramento, CA 

Matthew Rodriquez was appointed Secretary for Environmental 

Protection by Governor Edmund G. Brown Jr. in July 2011. As 

Secretary, Matt oversees six boards, departments and offices 

within CaiEPA, and advises the Governor on environmental policy. 

Matt comes to CaiEPA with over 25 years of environmental 

experience with the California Department of Justice. Matt formerly 

served as a Deputy Attorney General, specializing in land use and 

environmental law, Chief Assistant Attorney General for the Public Rights Division in 

2009, and prior to his role as Secretary, Acting Chief Deputy Attorney General for Attorney 

General Kamala D. Harris. Matt graduated from UC Berkeley, and received his JD from 

UC Hastings College of the Law. 
77 


30463.061

Testimony of Matthew Rodriquez, 

Secretary, California Environmental Protection Agency 

Before the Senate EPW Subcommittee on Clean Air and Nuclear Safety 

"Cooperative Federalism Under the Clean Air Act: State Perspectives" 

I am Matthew Rodriquez, Secretary of the California Environmental Protection 

Agency. Thank you Chairman Capito, Ranking Member Whitehouse, and other 

Subcommittee Members for inviting me to testify. I will describe how the federal-state 

partnership created in the Clean Air Act has provided an extraordinarily successful example 

of cooperative federalism. It has enhanced the protection of public health for nearly 50 

years, while spurring innovations that have benefitted businesses and communities. My 

testimony will also discuss recent hasty and ill-considered actions that threaten to weaken 

or eliminate these protections, while undercutting our ability to care for our people and our 

economy. 

Current efforts to undo clean air safeguards threaten to end years of exceptional 

results for people in California and across our country. Since the Clean Air Act was 

comprehensively amended in 1970, emissions of the nation's most common air pollutants 

have fallen by an average of 70 percent, even as our economy grew by 246 percent.; By 

2020, the Act's economic benefits will total $2 trillion, and exceed costs by 30 to 1. ;; 

The Act has spurred the use of clean technologies that drive business opportunity. 

New refinery equipment reduces waste and improves worker safety and the health of 

people in nearby neighborhoods. Idle-reduction technologies for cars, trucks, and school 

buses cut fuel costs, engine wear, and pollution. Gas-electric hybrids and electric vehicles 

curtail greenhouse gas and smog emissions. The federal EPA should not hurriedly turn its 

back on this record of success, and leave businesses, workers and the public behind.iii 

Joint federal and state efforts have built this record of achievement. The federal 

government provides minimum standards and resources to states, and states tailor 

solutions for their communities. iv Today, that leadership is in jeopardy as U.S. EPA attempts 

to weaken landmark safeguards, and states are forced to spend resources to fill the gap. 

Here are several examples of where we must get back on track. 

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Working to Dismantle Shared, Rigorous, Vehicle Air Pollution Standards 

Thirteen states, including California, automakers, and the federal government 

operate a coordinated national program to set rigorous and fair standards for greenhouse 

gases and fuel economy for cars and trucks! U.S. EPA's findings last year show the 

program will save roughly 1.2 billion barrels of oil, cut greenhouse gas emissions by over 

half a billion metric tons, and save the average consumer more than a thousand dollars 

over a vehicle's life. vi 

After years of collaborative work between U.S. EPA, the National Highway Traffic 

Safety Administration, and the California Air Resources Board (CARB), it has been 

demonstrated that the standards are achievable- maybe even conservative -and helping 

U.S. automakers stay competitive in the global market.vii So, it is deeply disappointing that 

the Trump Administration recently announced its intention to weaken and potentially 

dismantle the program -without meaningfully consulting with California, and despite 

overwhelming public opposition. 

As we prepare to withstand this rollback, it is important to remember that the 

partnership now under attack is a long-standing and successful one.vm Ever since California 

scientists and engineers led the way to start cleaning up Los Angeles's smog in the 1960s, 

Congress has recognized the special role states can serve to help drive innovation in this 

sector. That's why from the very beginning, Congress gave California the ability not to 

dictate national standards, but to adopt its own emissions standards given its recognized 

technical expertise and its unique experience with automobile pollution. And, subject to 

receiving a waiver from U.S. EPA, other states are allowed to adopt California's standards.lx 

Through the years, U.S. EPA has granted dozens of waivers to support our program .X and 

many states have chosen to adopt California's standards. 

Now that this collaboration has been challenged, we are prepared to take action, 

including legal action, to protect our program if necessary. It is time to restore our 

cooperative relationship in order to promote the public's interest and protect public health. 

Keeping Old and Polluting Trucks on Our Roads and in Our Communities 

Our relationship is also strained by the dirty and dangerous trucks called "gliders"-

which are essentially old polluting truck engines placed in new truck bodies, and sold as 

new. Gliders can emit 50 to 450 times as much deadly particle pollution as modem 

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vehicles, and up to 40 times as much smog-forming NOx, as U.S. EPA's own testing 

shows.xi Until recently, U.S. EPA was using its legal authority to ensure the glider loophole 

was closed and these heavily polluting trucks were out of our communities and off our 

roads. 

But last year, in a surprise move, U.S. EPA reversed its legal position and proposed 

to let these trucks onto highways across the country.xi1 This is unfair to law-abiding truck 

manufacturers, and will put highly polluting vehicles in our cities, towns and transportation 

corridors. There is no good reason for this move. The federal Clean Air Act supports glider 

truck controls, and the public, the states, and the truck industry oppose the reversal. xiii 

California is stepping up and spending state resources to create our own safeguards, but 

enforcement is far more difficult than it would be with the federal standards in place. xiv 

Moreover, other states may not be able to put rules in place. The result- unless U.S. EPA 

reverses course- will be to create a huge polluting loophole in our nation's trucking 

programs that can harm neighborhoods throughout the country. 

Failing to Fight Climate Change 

As the U.S. Supreme Court has reinforced three times now, the federal Clean Air Act 

gives U.S. EPA the authority and the responsibility to fight global warming and control 

greenhouse gases.xv Although many states are taking action, we need the federal 

government to demonstrate leadership and provide strong policies and investments to 

combat the existential threat of climate change. Instead, the Trump Administration is 

proposing to abandon its legal responsibilities under federal law and its obligations to 

current and future generations. 

The Administration's proposal to repeal the Clean Power Plan -which reinforces the 

power sector's move away from high-emitting sources- is the best example.xvi The Clean 

Power Plan was built on cooperative federalism: through a well-publicized and transparent 

process, it set highly attainable targets to reduce greenhouse gas emissions by 2030, and 

offered a wide array of state planning possibilities and flexibilities to meet these targets.xvii 

With the Plan in place, states across the country were working together and exploring their 

options. In fact, California was able to determine it could comply ten years early, and 

submitted a compliance plan.xviii Other states have continued to make progress, too, 

because moving away from dirty and expensive fossil power just makes economic and 

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environmental policy sense.xix But without federal leadership, we lack a national vision or 

plan to modernize our power sector. 

There are many other examples. For instance, U.S. EPA was reprimanded by the 

federal courts for illegally delaying its commonsense methane standards for the oil and gas 

sector,"" but U.S. EPA continues to attempt to weaken these protections. It has flatly 

refused to enforce methane standards for landfills, even though it is required to do so. A 

multi-state coalition has put it on notice that we will go to court if necessary to protect the 

standards. xxi 

The list goes on: We had to go to court to insist that the Trump Administration comply with 

Congress's direction to ensure fuel economy penalties keep up with inflation, xxii and to 

maintain greenhouse gas planning targets for highway investments.xxiii We had to go to 

court to maintain federal rules limiting wasted, polluting, gas from federal oil and gas leases 

from spewing into the air.xxiv And when U.S. EPA refused to continue to defend critical limits 

on global warming super-pollutants, we wrote state rules to control these pollutants in place 

of the federal program. xxv 

The bottom line is that, in the face of the most pressing environmental crisis of our 

time, the federal partners we need are instead proposing to rescind, withdraw and ignore 

the programs and plans we need to protect our people, economy and environment. This 

forces states to spend their limited resources trying to hold onto progress, and to step into 

the gaps rollbacks create. We should be aligning our efforts to confront these threats, 

rather than being left to fill in the void. 

Slow Walking the Clean Up of Smog 

Federal-state cooperation is also at the core of our national program to make sure 

our air meets basic standards to protect public health. Ordinarily, U.S. EPA sets sciencebased maximum levels for air pollution; the states then develop plans to meet and maintain 

these thresholds.xxvi The nation's standards for smog, a potent health threat, are critical. It 

can trigger asthma attacks, worsens heart conditions, keeps kids and the elderly indoors, 

and can even damage our agricultural crops. 

U.S. EPA has not done its job on helping to reduce smog pollution. It refused to 

designate areas in compliance or not in attainment with federal standards, instead 

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announcing an extended delay before even starting the process."""li When 15 states and the 

District of Columbia filed suit over this illegal step,xxviii U.S. EPA withdrew the formal delaybut still did nothing. Months passed. We had to go to court again to get a court order to 

force U.S. EPA to do its job.""ix There is no reasonable explanation for why our federal 

partners have delayed the implementation of these critical public health safeguards. 

Failing to Protect Communities From Dirty Smokestacks 

States rely on our federal partners to ensure that factories and power plants have 

strong pollution controls. However, just a few months ago, U.S. EPA revoked the "Once-In, 

Always-In" policy that ensures these major sources of toxic air pollution are always subject 

to strict controls.""" These toxic air pollutants include lead, mercury and arsenic, which can 

cause cancer and damage the nervous system, including to the most vulnerable in society, 

children and developing fetuses. 

Under the new policy, these pollution sources can drop out of the program and 

increase their emissions again -a move that independent experts predict could steeply 

increase toxic emissions at many sites.-

This is not the only rollback on smokestack pollution. The Administration has 

repeatedly issued new policies weakening the rigor of the federal pollution control programs 

-including policies that make it easier for huge sources of air pollution to avoid using 

feasible controls to reduce emissions.xxxii 

People live next door to smokestacks all across this country, and it is often the 

communities with the fewest resources that bear the greatest pollution impacts. They 

deserve protection. States will do their best to provide it, but that means diverting resources 

needed to address other public health threats. States should not have to spend limited 

resources to protect their people because U.S. EPA is weakening existing protections. 

Proposing Inadequate Resources 

We need a strong and vigorous U.S. EPA. That is why we so appreciate that this 

Congress resisted the damaging proposed budget cuts to the agency, and is maintaining 

core federal programs, including grant programs. Protecting public health is our greatest 

responsibility and an investment in our future. We need to keep supporting the states, and 

federal workers, who protect us all. 

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Conclusion 

Achieving the goal of clean air is about protecting our communities. We achieve that 

goal most effectively when we work together in partnership- with the public, with industry, 

and with the federal administration. That is the structure Congress wisely established many 

years ago, and it has proven successful. U.S EPA should not walk away from this decadesold success story. If it does, states will do what they must to protect the health of our 

people and use all of our available tools to ensure that U.S. EPA is there to work with us, 

not against us. 

I See U.S. EPA, Progress Cleaning the Air and Improving People's Health, available at: 

httos:/lwww.epa.gov/clean-air-act-overviewlprogress-cleaninq-air-and-improvinq-peoples-health. 

11 See U.S. EPA, The Benefits and Costs ofthe Clean Air Act from 1990 to 2020 (March 2011), available 

at: https://www.epa .govlsites/productionlfiles/20 15-07/documents/summarvreport. pdf. 

"California Air Resources Board, California's Advanced Clean Cars Midterm Review (January 2017), 

available at: https:llwww.arb.ca.gov/msprog/acc/mtr/acc_mtr_finalreport_full.pdf. 

tv See, e.g., 42 U.S.C. § 7416 (protecting state authority to develop rules more stringent than federal 

baseline standards); 42 U.S.C. § 7410 (state planning process to meet federal standards); 42 U.S.C. §§ 

7411 & 7412 (federal criteria and toxic pollution programs, developed to be implemented with the states); 

42 U.S.C. §§ 7507 & 7543 (recognition of state vehicle pollution standards) 

• See California Air Resources Board, Advanced Clean Cars Program, available at: 

httos://www.arb.ca.gov/msproq!acc/acc.htm. 

~ U.S. EPA, Final Determination on the Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle 

Greenhouse Gas Emissions standards under the Midterm Evaluation (January 2017), available at: 

https://nepis.epa.gov/Exe/ZyPDF.cqi?Dockey=P100QQ91.pdf. See also California Air Resources Board, 

California's Advanced Clean Cars Midterm Review (Jan, 2017) 

~~See id.; see also California Air Resources Board, California's Advanced Clean Cars Midterm Review 

(Mar. 2017), available at: https://www.arb.ca.gov/msprog/acc/mtrlacc_mtr_finalreporl_full.pdf 

~'See Ann Carlson, Iterative Federalism and Climate Change, Journal of the UCLA School of Law 

(2008), available at: https://escholarship.orqlcontent/gt7pc2n5gclgt7pc2n5gc.odf. 

ix 42 U.S.C. §§ 7543 & 7505. 

'See U.S. EPA, Vehicle Emissions: California Waivers and Authorizations, available at: 

httos://www.epa.gov/state-and-local-transportationlvehicle-emissions-california-waivers-andauthorizations. 

~ Chassis Dynamometer Testing of Two Recent Model Year Heavy-Duty On-Highway Diesel Glider 

Vehicles, November 20, 2017, Docket No.: EPA-HQ-OAR-2014-0827-2417 

~~See 82 Fed. Reg. 53,442 (Nov. 16, 2017). 

xm See, e.g., Testimony of Dr. steve Cliff, Deputy Executive Officer, California Air Resources Board (Dec. 

4, 2017), available at: https://ww2.arb.ca.gov/testimony-opposing-epas-proposed-repeal-emissionrequirements-qlider-vehicles-qlider-engines-and. 

"• See Sacramento Bee, "California's pollution cops might crack down on big rigs" (Feb. 27, 2018), 

available at: http://www.sacbee.com/news/local/environment/article201578939.html. 

,.. See Massachusetts v. EPA, 549 U.S. 497 (2007); American Electric Power Co. v. Connecticut, 131 S.Ct. 2527 

(2011); Utility Air Regulatory Group v. U.S. EPA, 134 S.Ct. 2427 (2014). 

~ 82 Fed. Reg. 48,035 (Oct. 16, 2017). 

~~See 80 Fed. Reg. 64,662 (Oct. 23, 2015). 

''"See California Air Resource Board, California's Compliance Plan for the Federal Clean Power Plan (July 27, 2017), 

available at: https://www.arb.ca.gov/cc/powerplants/meetings/07272017/final-proposed-plan.pdf. 

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'"See, EDF, "Climate and clean energy progress continues in spite of Clean Power Plan repeal rumors" (Oct. 6, 

2017), available at: http:l/blogs.edf.org/energyexchange/2017/10/06/climate-and-clea n-energv-progresscontinues-in-spite-<>f-clean-power-plan-repeal-rumors/. 

"'See Clean Air Council v. Pruitt, 862 F.3d 1 (2017). 

"'See The Hill, "States threaten to sue Trump EPA for delay in enforcing landfill pollution rule", available at: 

hnp:/Jthehill.com/policv/energy-environment/380008-states-threaten-to-sue-trump-epa-for-delay-in-enforcinglandfill. 

""''See States of New York, California, Vermont, and Maryland, and the Commonwealth of Pennsylvania v. National 

Highway Traffic Safety Administration, United States Court of Appeals for the Second Circuit (Case Nos. 17-2780 & 

17-2806). 

nm See California et at. v. U.S. Department of Transportation eta/., United States District Court for the Northern 

District of California (Case No. 4:17-cv-Q5439); see also Streetsblog, "FHWA Reinstates Clean Air Rule for 

Transportation" (Sept. 25, 2017), available at: https://cal.streetsblog.org/2017/09/25/fhwa-reinstates-clean-airrule-for-transportation/. 

,.,. See State of California eta/. v. U.S. Bureau of Land Management, United States District Court for the Northern 

District of California (Case No. 3:17-cv-07186-WHO). 

""See Mexichem Fluor, Inc. v. U.S. EPA, United States Court of Appeals for the District of Columbia Circuit (Case 

Nos. 15-1328 and 15-1329); see also lnsideCiimateNews, "California Bans Climate-Warming HFCs in New Air 

Conditioning and Refrigeration" (Mar. 30, 2018), available at: 

https:l/insideclimatenews.org/news/30032018/california-hfc-ban-short-lived-climate-pollutants-global-warmingrefrigerators-air-conditioners. 

"""'See generally42 U.S.C. §§ 7408-7410. 

"""''See 82 Fed. Reg. 29,246 (June 28. 2017). 

,.,.;;; See State of New York eta/. v. U.S. EPA, United States Court of Appeals for the District of Columbia 

Circuit, Case No. 17-1185 (filed Aug. 1, 2017). 

""'• In re Ozone Litigation, -F. Supp. 3d-, 2018 WL 1258209 (Mar. 12, 2018). 

=See U.S. EPA, Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air 

Act, available at https://www.epa.gov/sites/production/files/2018-

0 1/documents/reclassification_ of_major _sources_as_area _sources _under_ section_112_ of_ the _clean_ai 

r_act.pdf. 

XX><i See, e.g., Environmental Integrity Project, Toxic Shell Game: EPA Reversal Opens Door to More 

Hazardous Air Pollution (March 267, 2018), available at: http://www.environmentalintegrity.org/wpcontent/uploads/20 17/02rT oxic-Sheii-Game.pdf. 

"""'See, e.g., E&E Daily, "Pruitt backs off enforcement of power plant program" (Dec. 8, 2017), available at: 

https://www.eenews.net/stories/1060068533: Bloomberg News, "EPA Oears the Air for Polluters With U.S. Factor 

Emissions Rules" (Mar. 13, 2018), available at: hnps://www.bloomberg.com/news/articles/2018-Q3-13/epa-clearsthe-air-for-polfuters-on-u-s-factorv-emissions-rules. 

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Senate Committee on Environment and Public Works 

Subcommittee on Clean Air and Nuclear Safety 

Hearing entitled, "Cooperative Federalism Under the Clean Air Act: State Perspectives." 

April 10, 2018 

Questions for the Record for Secretary Rodriguez 

Ranking Member Carper: 

Please provide a response to each question, including each sub-part. 

l. Under this EPA, what are the biggest air challenges that you are facing in California and 

what support do you need from the Federal government to tackle those cha!lenges? 

California has long faced unique and pressing air quality challenges. Although we have made 

very substantial progress, 1 because ofthe state's topography and climate far too many 

Californians live in areas that do not yet comply with state and federal ambient air quality 

standards.;; Conditions we expect due to climate ehange, including hotter days that may generate 

more ozone smog, will make it even more difficult to ensure Californians are breathing healthy 

air. fil Climate change is also threatening California in many other ways. Thus, we need ongoing 

federal support in setting rigorous public health standards for air quality, in ensuring that 

planning can proceed as expeditiously as possible to meet these standards, and in taking strong 

federal action to control climate change-causing greenhouse gas emissions. We are concerned, 

as my testimony indicates, that we have hl\d to take U.S. EPA to court to help ensure it continues 

to provide this critical support. 

2. What are the economic impli<.;ations for California if the state does not have a strong 

federal partner to address these air pollution challenges? 

U.S. EPA's own analysis has shown that achieving the 70 parts per billion ozone NAAQS would 

provide up to $4.5 billion in benefits nationwide, and an additional $ 1 .3 billion in benefits in 

California.iv To meet this ozone standard, California needs U.S. EPA to take strong action to 

reduce emissions from interstate trucks, ll'!:>W locomotives, and other sources that U.S. EPA has 

primary responsibility to regulate. Without a strong federal partner, California will suffer the 

economic cost of continued pollution. Federal inaction may also place some California 

businesses at an economic disadvantage compared to other states' businesses that would not be 

subject to the same emissions controls as California businesses. 

3. In 1995, EPA established a "once-in, always-in" policy under the Section 112 Clean Air 

Act air toxic program. This policy prevented major sources of air toxic pollution such 

as lead, arsenic and mercury- from backsliding on their Clean Air Act air toxic 

requirements. In January 2018, Administrator Pruitt's EPA withdrew this policy without 

any public comment or public health analysis. EPA claimed at the time the change would 

encourage facilities to implement voluntary pollution abatement and prevention efforts. 

However, we know from history and experience that voluntary actions by industry do 

not, alone, reduce air toxic pollution. 

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a. Secretary Rodriquez, how do you think the "once in, always in" policy change 

effect your state? 

California has a rigorous air taxies program, but we generally depend on federal standards where 

they exist. This policy change will weaken federal protections, meaning we will see increased 

toxic emissions in California unless we create additional state regulatory safeguards. Thus, U.S. 

EPA's action creates a dangerous and costly problem where none formerly existed. We are now 

in the untenable position of either accepting increased levels of toxic air pollution or spending 

limited state resources to address the problem U.S. EPA chose to create. Accordingly, we are in 

court with U.S. EPA to insist that they restore the once-in, alw<~;ys-in policy because it is a 

critical tool for protecting Californians from toxic air pollution.v 

b. Could withdrawing the "once in, always in'' policy increase air toxic 

emissions and threaten communities across the nation? 

Yes. Credible reports by third-parties suggest that very substantial toxic increases are possible." 

Removing federal legal requirements to controltoxic air pollution may result in sources choosing 

to increase their emissions. · 

c. Do you believe maj0rsources will voluntarily abate emissions lower than 

current emissions? If not, why not 

Although some sources may choose to do the right thing and continue to reduce emissions, there 

is no assurance this wollld;:tlwa:xs occur. Some emi~sionsSol.lrces may unreasonably decide to 

avoid or delay the costs of applying pollution control technologies. The federal air toxics 

program has been succe;ssful becauSe it ensures that all major sources play by the same rigorous 

rules. Reducing emissionscontrolt{on these sources risks increasing their pollution levels, which 

may endanger public health: 

4. In an internal 2005 EPA doc11ment, EPA regional staff cautioned that withdrawing the 

"once in, always In" policy would mean ·'many sources would take limits less stringent 

than MACT requireme!J.ts" and the policy change would be "detrimental to the 

environment and undetmine the MACT program.""' The regional EPA staff explained 

that the policy change would mean major air toxic sources "could virtually avoid 

regulation and greatly complicate any enforcement against them" and "the cost of the 

increased [haza~dqus air pollutant] emissions would be borne by the communities 

surrounding the sources.'"'" The regional EPA staff were so concerned about revoking 

the "once in, always In" policy, they stated EPA should not make the policy change 

without looking "closely at this issue to determine whether the likely benefits would be 

greater than the potential environmental costs."" Do you agree with these statements and 

does it concern you EPA has withdrawn the "once in, always in" policy without any 

public health modeling or analysis? 

I agree that the risks posed by this policy change are very serious. Certainly, no change should be 

made without a full and transparent public process, including a thorough analysis of the potential 

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public health effects. Such a sweeping reversal in the control of dangerous air taxies should 

have been made only after consulting the public, states, and U.S. EPA expert staff. 

5. The Clean Air Act's National Ambient Air Quality Standards, or NAAQS, program 

establishes a federal-state partnership for reducing common air pollutants that endanger 

human health, including ozone also known as smog. Under the Clean Air Act, EPA is 

required to designate which areas of the country have unhealthy ozone areas and/or 

contribute to downwind air quality problems. This process is vital for states to 

effectively plan, and reduce pollution crossing state borders. Instead of following the 

law, U.S. EPA Administrator Pruitt has so far failed to do, his job and refused to designate 

who is living in areas with unhealthy ozone. States fru~trated with the delay had to sue 

U.S. EPA. A court last month ordered U.S. EPA to follow the law and issue air quality 

designations. 

a. In your view, does cooperative ft:deralism mean states have to file lawsuits in 

order to force EPA to uphold)tStesponsibility? 

No. U.S. EPA has a legal responsibility to make these designations in a timely fashion. 

Diverting state resources to repeatedly litigate this issue is. costly and inefficient; the resulting 

delays also defer the attainment planrlihg process." The result is that members ofthe public 

suffer longer from unhealthy air. These dela;ysare contrary to the basic structure of the Clean 

Air Act, which depends upon a strong state and f~deral planning partnership. 

b. When EPA ignores its Clean Air -A:ctxesponsibllities, does that ultimately hurt 

states - and industry - becailse ofthe ongoing uncertainty? 

Yes. U.S. EPA's own economic studies demonstrate that clean air planning provides substantial 

economic benefits by keepingpeople heal~h); ~nd providing incentives for clean technology 

developQJent. '' Delays, like the ones that U.$> E:PA has unfortunately created, make it harder to 

establish, planning frameworks to continue this progress. 

6. During EPA Air Director Bill Webr.um's previous tenure as Acting EPA Air Director 

under President George W. Bush, he attempted to insert political leadership early in the 

science-based NAAQS-setting process. Do you support this idea? If not, why not? 

The Clean Air Act directs U.S. EPA to establish ambient air quality standards solely based on 

science; indeed, the Act requires a scientific review committee to independently review the 

standards to ensure that they are scientifically rigorous_,;; It would be entirely inappropriate for 

political considerations to influence this process. Medical science not political expediencymust determine whether the air is heathy to breathe. 

7. EPA Air Director Bill Wehrum is said to be looking at speeding up the NAAQS review 

process, possibly shortening the scientific review process. Do you support this idea? If 

not, why not? 

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In the absence of a specific proposal all I can say is that in general people charged with 

protecting public health must not let a desire for speed trump the need for science. Much of the 

Clean Air Act's success has come from the thorough grounding of air quality standards in data, 

and the existing process has provided immense public health and other benefits to people in 

California and in other states. 

8. How does EPA's actions relaxing federal standards such as New Source Review, lightduty and heavy-duty vehicle standards and air toxic rules hurt California's ability to meet 

and maintain NAAQS standards and achieve clean air? 

U.S. EPA's actions are unhelpful and harmful. California's State Implementation Plan depends 

substantially on continuing reductions from both mobile and &tationary sources. Although 

California's state laws are in some areas more rigorous than th~ federal standards,"il federal 

efforts to roll back controls within federal areas of responsibility ultimately require us to spend 

additional state resources to fill gaps or resist unwarranted rollbacks .. The result is unnecessary 

expenses for California and, potentially, increased .pollutant exposuresifwe cannot fully address 

U.S. EPA's actions. It would be preferable for U.S. EPA to be a good partl;ler as we work to 

attain air quality standards. Please also see my response to questions three and four with regard 

to the air toxics rules. 

9. In October 2017, EPA issued a proposal to repeal the Clean Power Plan, which addresses 

carbon dioxide pollution from our nation's largest industrial sources of carbon pollution, 

existing power plants. 

a. Do you agree t)1at repealing the Clean Powt)r Plan only provides greater 

uncertainty for the power industry and puts communities at further risk to the 

impacts of climate change? 

As California's formaicommentson the proposed repeal ofthe Clean Power Plan (CPP) state,';' 

power sector emissions reductionsare critical to addressing climate change and can be achieved 

cost-effectively. Indeed, California's compliance plan for the cppxv demonstrates that 

California's long-standing efftl.rJ;s to deploy energy efficiency, renewable power, and cleaner 

energy technology have positioned California to comply approximately a decade early. Measures 

like those California employed are broadly in use throughout the country and many states and 

utilities were posed to c.omply with the CPP. Delaying, weakening, or repealing the CPP 

impedes the development of a regulatory framework that assists companies and communities in 

consistently deploying these measures. The result is increased and undue uncertainty, and 

greater climate risk. 

b. As someone from a coastal state, what is EPA's obligation when it comes to 

climate change? Is this a clear example of cooperative federalism? 

Sea-level rise is among the threats to public health and welfare that U.S. EPA recognized in its 

formal Endangerment Finding for greenhouse gases, and that threat continues to be serious. 

California faces ongoing sea-level rise resulting from climate change. It is an immediate and real 

threat to lives, livelihoods, transportation infrastructure, economic activity, and the environment 

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in California. xvi As the courts have confinned, the Clean Air Act's cooperative federalism 

structure requires U.S. EPA to act to address these issues. 

c. Please explain how the Clean Power Plan allowed states the flexibility to meet 

emission goals and continue current state actions that address climate change? 

The CPP provided a broad range offlexibilities. States may comply with the CPP via their own 

state measures, may adopt federal framework plans, and may use rate or mass-based compliance 

frameworks. This extensive flexibility, coupled with clear federal standards for emissions 

reductions, is consistent with U.S. EPA's successful, decades-h:)ng approach to controlling 

emissions under the Clean Air Act. 

d. California has already acted on climat~.ch~ge, has the state seen any co· 

benefits from reducing carbon pollutfuil? Wluit.other benefits have the state 

seen from carbon-reduction progrlt.ms? 

Climate change adversely affects various aspec~·~~ environmental qualifY~d will result in 

direct and indirect negative impacts on human heru~h.,Cutting\gr;:enhouse gas~~ helps to avoid or 

reduce these hannful impacts. Califotnia has seen red~~i<?~;.in:premature morft\lity, 

hospitalizations, and emergency rooXtJ;,~~ts as a result f~~uctions in localized ~ir pollution 

required by policies and regulation · · ··· · llutio~. CARB estimates that 

implementing measures to achieve Cali~~i · HG tatg~t will result in avoided health 

impacts valued from $1.2 to $1.8 billion, ~hd ap ely 3,30Q.avoided premature deaths in 

2mo~ · · 

Moreover, as Califomial}as made'~iivironm~~~~·~;t~~ss,ou}economy has continued to 

expand. We are already the fifth·lar~e~t econom:)l·.~the world, and we expect continued growth 

at approximat~IY,f·f% annually,~~.~Uf}rig;i.na state'§:ross Domestic Product (GOP) of 

approxitp:a~ely $3.4 tril\ion in 2'Q~l)?. even as:"'e;~Iash~missions by 40% from 1990 levels. xviii Job 

growti}•~!:lntinues; in 2015, for inSta!J.Ce, Califom1a.added 20,000 jobs in the solar sector alonehalf of alj'solar jobs nationaUx. xix We expect our continued efforts to build a clean economy to 

come with employment opporttmities fQI.'~J Californians. 

In addition, greellhquse gas reduction programs can lead to avoided environmental damages, the 

value of which can b~·estimated using the social cost of carbon, which is a tool for monetizing 

the value of the net impa'!;t~ frok! global climate change. The social cost of carbon dioxide 

emissions includes damag\l.sh:flated to changes in agricultural productivity, energy use, human 

health, property damage frorti floods. It also includes nonmarket damages like the services that 

natural ecosystems provide to society. xx Using the social cost of carbon, California estimates that 

achieving the 2030 GHG target will result in avoided environmental damages ranging from $1.9 

to $11.2 billion. 

I 0. EPA is considering replacing the Clean Power Plan with regulations that will have very 

little, if any, carbon emission reductions from the power sector and will likely increase 

electricity costs and traditional air pollution emissions, such as sulfur dioxide. Harvard's 

School of Public Health recently reported that ifthe agency focused solely on an "inside 

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the fence line" approach as proposed in the 2017 Advanced Notice of Proposed 

Rulemaking (ANPRM), there would be an estimated increase in sulfur dioxide emissions 

by 3% and could result in premature lives lost."' At the same time, a majority of the 

carbon dioxide emission reductions and all the energy efficiency measures in the Clean 

Power Plan are not included in the ANPRM. It is difficult to even compare the ANPRM 

with the Clean Power Plan, which will save an estimated 3,500 lives and reduce 

electricity bills by $85 a year. Do you have concerns with the EPA's ANPRM? lfso, 

please explain. 

California is concerned that the ANPRM indicates U.S. EPA is l!Ot considering all effective 

options for greenhouse gas control from the power sector. States have demonstrated that costeffective systems are available to reduce these emissions .. U.S. EPA should help implement 

these systems. Instead, the ANPRM revives discreditedargum:ents that U.S. EPA long ago 

discarded, and appears to steer towards illegally weak pollution reductions. As California's 

officials have testified to U.S. EPA,"'; this is unwarranted. CARB7sextensive technical 

comments in the formal ANPRM docket demonstrate, in detail, that stronger controls are 

possible and required.""' 

II. As I mentioned in the hearing, Senator Udall and I sel)t a lerterxxiv to EPA regarding 

concerns about a proposal thatwo~ld allow some ofthe dirtiest heavy-duty diesel trucks. 

called glider trucks, to circumvent clean air cleanups. Glider trucks look like new trucks 

outside, but are equipped with old, high-polluting diesetengines on the inside. As we 

state in the letter, according to internal agency research·~ not released until after EPA 

published this propostH, .a new 2017 glider tr!\ek can emit U!"tO 450 times the particulate 

matter (PM) pollution, and up to 43 times the nitrous oxide (NOx) pollution, of model 

year 2014 and 201.5 trucks. Other EPA analyses concluded that, if left unregulated, glider 

vehicle emissions could prematurely killthousands of people, and increase instances of 

lung c~cer, chronie'lu~g;disease, heart disease, and severe asthma attacks. This is 

additional pOllution that "Will be emitted in my state. in your state and states across the 

country. I fear that if this Pf()POsal went final, it could further burden states already 

struggling to meet all;lbient air health standards. 

a. Do you support the EPA's November 16, 2017 proposal to repeal air emission 

standards tor.glidertrucks? If so, why? If not, why not? 

CaiEPA does not support U.S .. EPA's proposal to repeal common sense and fair air emission 

reduction standards for glidertthcks. As Dr. Steve Clift~ CARB's Deputy Executive Officer 

testified at a U.S. EPA hearing, the proposed rule would expose the public to dangerous pollution 

if finalized."' Modern trucks can comply with lower pollution standards, and the Clean Air Act 

requires that U.S. EPA apply these standards fairly, without exempting "glider" vehicles. The 

proposed repeal mle is legally unfounded, and technically unnecessary. CARB's extensive 

comments on this proposal address these matters in detail, as do comments tiled by California 

Attorney General Becerra. xxv' 

b. Are you as troubled as I am that this proposal appears to largely benefit a 

single company? If not, why not? 

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Yes. U.S. EPA's rules should be based on the science and the law and protect the public as a 

whole. As Dr. Cliffs testimony explains: 

"[T]he proposed repeal would legitimize the actions of the glider industry, which ... has 

been blatantly circumventing emission control requirements and undermining the vast 

majority of businesses that play by the rules and clean up their trucks. It has been a 

major undertaking on the part of US manufacturers to integrate complex emission 

controls into their heavy-duty diesel engines. They have done so successfully over the 

last decade, making today's diesel trucks the cleanest ever, but this has come at a high 

price, literally. To comply with current emission standards, heavy-duty engine 

manufacturers have made significant financial investments and have structured their 

future product plans taking these investments and emission control commitments into 

account. ... [I]fEPA continues to shirk its duty to protect the public's health and welfare 

and our nation's air quality, by manufacturing a loophole that exempts glider vehicles 

from new vehicle requirements, and by inappropriately detlning glider vehicles as not 

new vehicles and allowing unbridled glider production, it would put engine 

manufacturers that have invested significant resources to comply with current emission 

standards at a competitive disadvantage and perhaps even force them to initiate dirty 

glider vehicle production as welL" 

c. Comments on the glider prop9sal submitted by the Diesel Emissions 

Reductiqn Act (DERA) ~oalition, Which is a br<;>ad coalition of 

environrnenl;lll,public health, ind~stryandstate groups who support clean 

diesel, included the followi!lg statement: 

"We are CotJeerned that EPA's decision to encourage the continued 

prolifer;ltion9fol.<fer.engines~hrough the glider industry would increase 

emissions from mediu!U and heavy-duty vehicles and undermines the 

work of the. Coalition aild;i.J()operative federalism with the EPA and 

states.'•xxvii 

Do you share the DERA Coalition's concerns? If not, why not? 

I share these concerns. U.S. EPA'sproposal undercuts cooperative federalism and needed 

protection for clean air. As Dr, Clitf discussed: 

·'The proposed glider repeal would have a profoundly harmful impact on public 

health, and would put at risk states' efforts to meet federal ambient air quality 

standards and State Implementation Plan commitments. The repeal would 

effectively place thousands of outdated heavy-duty engines that do not meet the 

modern emission standards that have been in effect during the last decade on our 

highways. In short, a repeal puts our most disadvantaged communities at risk by 

walking away from the commitment to reduce their exposure to smog forming and 

toxic pollutants that impact public health leading to hospitalizations, asthma cases, 

lost work and school days, and premature deaths." 

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d. Should the federal government continue to focus on replacing and retrofitting 

dirty diesel engines, rather than putting dirty diesel engines back on the road? 

Why or why not? 

Yes. By any measure, U.S. EPA should continue focusing on replacing and retrofitting dirty 

diesel engines. Diesel particulate emissions are known to cause cancer. Federal efforts should 

protect the public from this pollution, rather than enabling the use of dirty trucks. U.S. EPA 

should abandon its etlorts to repeal the glider rule. 

Senator Markey: 

12. On Aprill2, 2018, President Trump issued a memorandum on the National Ambient Air 

Quality Standards (NAAQS). In this memorandum, President Trump ordered the 

Environmental Protection Agency (EPA) to speed up its reviews and processing of 

permits and plans under the Clean Air Act, including processing State Implementation 

Plans (SIPs) within I 8 months and preconstruction permit applications within one year. 

a. Can you describe tor me the process for California to create SIPs for regulations 

under the Clean PowerPI,an? Please include detail on how much time and public 

engagement is required to create a comprehensive SIP 

Development and adopti~J1 of,a CaliforniaSJP is typically a two-year process. The first half of 

the process is focused on developing the scientific and technical foundation for the SIP. Most 

critically, this phase includes working closely :with any affected industries to ensure we are using 

the latest and most accurate data, and are in agreement with industry on the pollution they emit 

and their contribution to danJ?,erous levels of air p()llution. The second half of the process is the 

development of pollution redtl(;tionmeasures in the SIP through an extensive public process 

including outreach to industry,; government officials and the public. California's experience in 

developing many SIPs de111onstrates that general consensus among the public and industry 

stakeholders can occur on effective actions to reduce dangerous levels of pollution. 

b. Do you think an unfunded mandate to speed up processing will result in better 

review of SIPs? 

No. SIPS are complicate;d, techhical documents necessary to protect the public interest and 

public health. Haste in the.review process is not appropriate and will not resu It in better decision 

making. Careful and thorough consideration of SIPs is critical to ensuring they achieve the Clean 

Air Act's mandates and protect the public. 

c. What might the public health consequences be of a federal mandate that requires a 

shorter process for creating SIPs in states like California? 

SIPs deliver public health benefits because they are carefully designed and scientifically 

grounded. Although we must act as quickly as possible on air pollution challenges, we must also 

act effectively. Artificial deadlines that unnecessarily cut the existing process short may leave 

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important technical questions partially addressed and jeopardize public health. We have an 

obligation to be thorough: some regions of California face some of the worst air quality in the 

country, with corresponding elevated asthma, lung disease, and heart disease risks. These risks 

apply with particular force to children, the elderly, and people who are already ilL We should not 

increase risk to these populations by rushing through our planning. 

d. In your opinion, what could EPA or Congress do to improve the SIP review 

process while still maintaining a strong emphasis on accurate science and air 

quality protection? 

California relies on U.S. EPA to do a strong science· based review of our SIPs. It is important for 

Congress to provide U.S. EPA with the fiscal and staff resources needed to completes its review 

in a timely fashion and, more importantly, with accuratescienct:{ .. Using the best available 

science is the foundation of heath-protective SIPs, al!d the federal budget should not be used as a 

tool to constrain this needed science. · 

13. On April 24, 2018, EPA Administrator$i:ott Pruitt announced a proposed rule that would 

ban EPA from considering studies that inclu<}e non-pl!blic data when developing 

regulations. 

a. How would this rule impactS·egl!lations that. EPA establishes in order to carry out 

its mission ofprotectingp!lblicllealth; including:regulations on clean air? 

CalEPA opposes this unni:Cessar.yproposal~oreducetheuse of the best available science in 

creating needed and .legally requit:ed protectiollsfor·pnblic health and the environment. The 

head of the American Association for the Adva!'l~ent of Science issued a statement criticizing 

the rule that appropriately summarizes some ofthe 111ain concerns with the proposal: 

"The [U.S. EPA's] latest l'tttempt to rej~Gt val,!d scientific evidence fundamentally 

mischaracteriies tbe way science is condu<;ted and made available for decision-making. If 

put into practice, EPA could prohibit, or make it incredibly costly, for the agency to use a 

wide swath ofhigh-qualicy scientific research. Despite the political rhetoric, there are 

existing federal guidelines that require access to the scientific information used for 

federal policies and regulations. This proposal appears to be an attempt to remove valid 

and relevant scientific evidence from the rule-making process." 

It is important to note tha:tthe.Clean Air Act already requires U.S. EPA to carefully consider the 

science. Certain kinds of studies, including epidemiological studies on individual health 

outcomes or those that involve confidential business information, may contain information 

critical to good regulatory design but inappropriate for broad public release. U.S. EPA should 

not arbitrarily blind itself to these useful and important sources ofinfonnation. 

Neither should the agency adopt a rule that would sow confusion, increase costs and cause delays 

in state agencies that rely on U.S. EPA to help develop and approve state standards to protect 

public health and the environment under federally delegated programs. 

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b. What might the consequences of this proposed rule be in California, including tor 

the health of citizens? 

We rely upon and expect U.S. EPA to use the best available science when it is setting standards 

or taking other actions to protect the public. If U.S. EPA declin<!S to review or analyze relevant, 

scientifically critical data simply because not all of it can be shared with every member of the 

public, U.S. EPA may move more slowly, make uninformed decisions or fail to approve 

sufficiently protective standards. This would come at considerable cost to public health, the 

environment and limited state budgets. 

14. On January 25, 2018, EPA Assistant Administrator Bill Wehrum issued a guidance 

memorandum that rolled back the "once in, always in'' policy that required major sources 

of hazardous air pollutants to install the maximumachievable control technology. This 

policy works to cut down emissions of 187 dangerous toxic pollutants like arsenic, 

mercury, benzene, and PCBs. 

a. Would the withdrawal of the ''once in, always in" policy increase air pollution in 

your state? 

Yes, it has the potential to do so. Please see my answers to questions three and four above. 

b. If so, do you have an estimate of how much or which pollutions may increase in 

your state? 

We do not yet have a firm estimate because the precise impact of the rollback will depend upon 

the choices of individual facilities. That said, independent analyses of other facilities, discussed 

above, suggest the potential for significant emissions increases if states do not act to address this 

rollback. 

c. How many facilities in your state could take advantage of this new guidance? 

A review of U.S. EPA databases, including its ''ECHO" database suggests over a hundred 

facilities in California may be In a position to take advantage of this rollback. Because these 

databases are periodically updated, these figures are not final. 

d. Have any facilities contacted you about taking advantage of this new guidance? 

Not yet, although we are carefully monitoring the situation. 

Senator Whitehouse: 

15. Administrator Pruitt has suggested he may attempt to revoke California's waiver under 

the Clean Air Act in order to prevent you from maintaining the CAFE standards which 

the automakers themselves agreed to in 2012. In your view, would a revocation of 

California's waiver under the Clean Air Act be consistent with !he principle of 

cooperative federalism? 

Page 10 of 12 
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30463.078

Although California does not set CAFE standards-- they are set by the National Highway Traffic 

Safety Administration-- Calitbrnia does set emissions standards under waivers authorized by the 

Clean Air Act. Revoking California's emissions waivers would be unprecedented and 

inappropriate. California has regulated mobile source emissions since before U.S. EPA was 

created. Our standards are responsible for significant improvements in air quality and public 

health. Unfortunately, even with this improvement California continues to suffer fi:om serious 

risks caused by mobile source pollution. Weakening Calitbrnia's ability to regulate these sources 

would be contrary to the Clean Air Act and its long, successful history of cooperative federalism. 

16. California has enacted ambitious policies to reduce carbon emissions, but EPA is going in 

the opposite direction as it attempts to repeal the Cleai\Power Plan. How does EPA's 

apparent position that climate change is not real affect California's climate efforts? 

Climate change is real and a serious threat to Cal\fornia and, as the Federal Administration's 

most recent scientific report further confirms, to other states, as well.xxvihStates, the federal 

government, and the international community ni:Ust work together to address climate change. 

California will continue to implement its climate chl!l:lge programs and workwi.th its partners in 

the United States and the internation<jl community, however, federal rollbacks will weaken our 

partnerships and distract from our eff01;ts to develop, spr.ea~, and implement necessary policies. 

17. Do you support the proposed cuts to EPA programs funding state clean air initiatives? 

CalEPA opposes cuts to. U.S. EPA programst() heiPc fi.lnq;;tate clean air protections. These cuts 

are unhelpful and impede an array of state initiativ.es that support improved air quality. 

18. Do you believe that climate change is occl.jrring and that it is caused by human emissions 

of greenhouse gases? 

Climate change is real, itis occurring, and it is caw:;ed by human emissions of greenhouse gases. 

This is nota matter of belieH)llt rather one of well-established scientific consensus. Climate 

change is pfimarily caused by greenhouse gases emitted by human activities. It imperils public 

health and welfare and is a particularly serlous threat to the most vulnerable members of our 

society. We have a legal and moral obligation to address climate change. 

(Apr. 23, 2014). 

U.S. EPA. Regulatmy Impact Analysis of the Final Revisions to the National Ambient Air Quality Standards 

for Ground-Level O:one (20 15), available at: https://www.epa.gov/sites/production/liles/20 16-

02/documents/20 !51 001 ria.pdf. 

v See California Air Resources Board v. United Stales Environmental Protection Agency, United States Court of 

Appeals, District or Columbia Circuit. Case No. 18-!085. 

Page 11 of 12 
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"See, e.g. Environmental Integrity Project, 1Vew Report Shows Rollback of Federal Air Pollution Control Rule Will 

A1ultiply Toxic Emissions (Mar. 26~ 2018)~ available at: https://v.-\vw.environmentalintegrity.org/news/toxicemissions-rollback-reportl. 

"' https:/lwww.npr.org/documents/2006/apr/epaiepa internal letter. pdf 

"" https://www.npr.org/documents/2006/apr/epa/epa internal letter.pdf 

" https:( /www. n pr.org/ docum ents/2006/ apr I epa/ epa _intern al_letter, pdf 

x See State ofNew York, eta!. v. United States Environmental Protection Agem.:y et al.~ United States Comt of 

Appeals, District of Columbia Circuit, Case No. 17-1185 and Stale of California, eta!. v. Scott Pruitt. and the U.S. 

EPA; United States District Court for the Northern District of California, Oakland Division; Case No. 4:17-cv-6936-

HSG 

'"See 42 U.S.C. § 7409. 

""See, e.g., California Health & Safety Code§ 42500 et seq. (barring certaitt changes to new source review 

provisions). 

"'See CA Rl3 Comments on CPP Repeal (20 18), available 

Page 12 of 12 
96 

Senator CAPITO. Thank you, Mr. Rodriguez. 

Mr. Garvin. 

STATEMENT OF SHAWN GARVIN, SECRETARY, DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL 

Mr. GARVIN. Chairman Capito, Ranking Member Whitehouse, 

Senator Carper, and members of the Subcommittee, my name is 

Shawn Garvin. I serve as Delaware Secretary of the Department 

of Natural Resources and Environmental Control. 

I would like to thank you for the opportunity to testify on Cooperative Federalism Under the Clean Air Act: State Perspectives. In 

May 2017 I had the opportunity to testify in front of this Subcommittee on the importance and effectiveness of the Clean Air Act 

in protecting public health and welfare, preventing premature 

deaths, and protecting the environment. 

I am pleased to be here today to once again address you on my 

State’s perspective of the Clean Air Act and some of the serious 

challenges downwind States face in meeting attainment standards 

for air quality. 

Ozone forming pollutants are well controlled in Delaware due to 

the State proactively requiring cost effective controls on a wide 

range of sources, including power plants, refineries, manufacturing 

plants, on road vehicles, consumer products, paints and coatings, 

gas stations, and open burning activities, to name a few. 

Despite these efforts, Delaware continues to be challenged in ensuring healthy air to our citizens because we are a downwind State 

and subject to air pollution transport from facilities in other parts 

of the country. In fact, over 90 percent of the pollution that contributes to ozone in Delaware is transported from out of State sources. 

The answer to solving our ozone problem lies outside of our borders, and we need the Federal Government to recognize the inequity that exists between upwind and downwind States. 

EPA has maintained that cooperative federalism is key to maintaining clean air. I would agree that cooperative federalism is invaluable, when it works well, by empowering States to act under 

Federal law and allowing communities to enjoy the benefits of 

State innovation. 

Positive outcomes can occur when the Federal Government works 

alongside States to determine best methods to continue progress toward clean air, provides the resources that the States need to enforce their regulations, and steps in when a State fails to meet its 

obligations. 

Progress in downwind States, such as Delaware, require that the 

Federal Government continue to provide the States with the tools 

and resources needed to enforce the Clean Air Act. Yet there have 

been proposed massive cuts in the past two EPA budgets. 

Progress also requires that the EPA maintain oversight and step 

in to ensure that upwind States continue to comply with the good 

neighbor provision. However, the EPA seems to be pulling back 

and turning decisions over to the States. 

We are also seeing the attempt to reduce regulations at the Federal level, such as repeal and replace of the Clean Power Plan, 

97 

weakening of fuel efficiency standards, revocation of the California 

waiver, and the rollback of the glider truck rule. 

In addition, the EPA has also failed to act on Section 126 Petitions, which is one of the ways a State can address problems that 

lie outside of its borders and seek reductions in emissions contributing to its nonattainment. 

All of these actions—or non-actions—will have serious consequences for downwind States such as Delaware. The inequity 

that Delaware faces is compounded by the fact that we are both a 

downwind and the lowest lying coastal State, and in fact, the lowest lying State. 

We are disproportionately economically affected by both the 

healthcare cost borne by the State due to the health effects of poor 

air quality, and by industry locating elsewhere due to more lax controls and regulations in upwind locations. 

As the lowest lying State, we will be further impacted by the pollution of inland States that are contributing to sea level rise and 

the increased frequency of storms and coastal erosion. 

My concern with the way the EPA is approaching cooperative 

federalism under the Clean Air Act is they are only focused on providing flexibility to the decisions we make inside our States. 

The problem is that air pollution knows no boundaries, and I 

have no authority to ensure other States are addressing pollution 

that impacts my citizens. I count on the EPA to use their authority 

to hold all of us accountable to the law, regulations, and science to 

ensure we are all being good neighbors. 

Thank you for the opportunity to testify. I am happy to answer 

any of your questions. 

[The prepared statement of Mr. Garvin follows:] 

98 


30463.080

The Honorable Shawn Garvin 

State of Delaware 

Department of Natural Resources 

Dover, DE 

Shawn M. Garvin joined Governor John Carney's cabinet in March 

2017 as Secretary of the Department of Natural Resources and 

Environmental Control, leading the agency tasked with protecting 

and managing Delaware's natural resources, protecting public 

health, providing outdoor recreational opportunities and educating 

Delawareans about the environment. 

Secretary Garvin's career in intergovernmental affairs spans more than 25 years at the 

federal, state, and local levels. In November 2009, he was appointed by President 

Barack Obama to serve as Administrator of Region 3 for the U.S. Environmental 

Protection Agency (EPA), overseeing the agency's work in the Mid-Atlantic, which 

includes Delaware, Maryland, Pennsylvania, Virginia and West Virginia, as well as the 

District of Columbia. 

Before he was named regional administrator, Secretary Garvin served as the senior 

state and congressional liaison for EPA Region 3, providing counsel to agency 

leadership on complex public health and environmental matters. Prior to his service with 

the EPA, he served as an aide to then-U.S. Senator Joe Biden, and also was executive 

assistant to former New Castle County Executive Dennis Greenhouse. 

Secretary Garvin is a Delaware native and graduate of the University of Delaware. 
99 


30463.081

STo.n:ovDn.o.WJ.1l• 

DEPARTMENT OF NATURAL RlsoUIICf:S 

AND F.NviRONMDITAL CoNTROL 

BSIKlHotHJQJWJ.l' 

Duvnl.,D11AWAil8l!Wm 

TESTIMONY OF SHAWN M. GARVIN BEFORE THE 

SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR SAFETY 

ON COOPERATIVE FEDERALISM UNDER THE 

CLEAN AIR ACT: STATE PERSPECTIVES 

APRIL 10,2018 

P ..... ll:l(l01)1».9000 

Fg-:(301)1»-6341 

Chairperson Capito, Ranking Member Whitehouse, and Members of the Subcommittee, 

my name is Shawn Garvin and I serve as Delaware's Secretary of the Department of Natural 

Resources and Environmental Control. I would like to thank you for the opportunity to testify on 

"Cooperative Federalism Under the Clean Air Act: State Perspectives." 

In May of 20 17, I had the opportunity to testify in front of this subcommittee on the 

importance and effectiveness of the Clean Air Act in protecting public health and welfare, 

preventing premature deaths, and protecting the environment. I am pleased to be here today to 

once again address you on my state's perspective of the Clean Air Act and some of the serious 

challenges downwind states face in meeting attainment standards for air quality. 
100 


30463.082

Ozone-forming pollutants are well controlled in Delaware due to the State proactively 

requiring cost effective controls on a wide range of sources, including power plants, refmeries, 

manufacturing plants, on-road vehicles, consumer products, paints and coatings, gas stations, and 

open burning activities to name a few. Despite these efforts, Delaware continues to be challenged 

in ensuring healthy air to our citizens because we are a downwind state and subject to air 

pollution transport from facilities in other parts of the country. In fact, over 90% of the pollution 

that contributes to ozone in Delaware is transported from out-of-state sources. The answer to 

solving our ozone problem lies outside of our borders and we need the federal government to 

recognize the inequity that exists between upwind and downwind states. 

EPA has maintained that cooperative federalism is key to maintaining clean air. I would 

agree that cooperative federalism is invaluable, when it works well, by empowering states to act 

under federal law and allowing communities to enjoy the benefits of state innovation. Positive 

outcomes can occur when the federal government works alongside states to determine best 

methods to continue progress toward clean air, provides the resources that the states need to 

enforce their regulations, and steps in when a state fails to meet its obligations. 

Progress in downwind states, such as Delaware, require that the federal government 

continue to provide the states with the tools and resources needed to enforce the Clean Air Act. 

Yet, there have been massive cuts in the past two EPA budgets. Progress also requires that the 

EPA maintain oversight and step in to ensure that upwind states continue to comply with the 

good neighbor provision. However, the EPA seems to be pulling back and turning decisions over 

to the states. We are also seeing the attempt to reduce regulations at the federal level, such as the 
101 


30463.083

repeal and replace of the Clean Power Plan, weakening of fuel efficiency standards, revocation 

of the California waiver, and the rollback of the glider truck rule. In addition, the EPA has also 

failed to act on Section 126 Petitions, which is one of the ways a state can address problems that 

lie outside of its borders and seek reductions in emissions contributing to its nonattairunent. All 

of these actions, or non-actions, will have serious consequences for downwind states such as 

Delaware. 

The inequity that Delaware faces is compounded by the fact that we are both a downwind 

and the lowest lying coastal state. We are disproportionally economically affected by both the 

healthcare cost borne by the State due to the health effects of poor air quality, and by industry 

locating elsewhere due to more lax controls and regulations in upwind locations. As the lowest 

lying state, we will be further impacted by the pollution of inland states that are contributing to 

sea level rise and the increased frequency of storms and coastal erosion. 

My concern with the way the EPA is approaching cooperative federalism under the Clean 

Air Act is they are only focused on providing flexibility to the decisions we make inside our 

states. The problem is that air pollution knows no boundaries, and I have no authority to ensure 

other states are addressing pollution that impacts my citizens. I count on the EPA to use their 

authority to hold all of us accountable to the law, regulations, and science to ensure we are all 

being good neighbors. 

Thank you for the opportunity to testify. I am happy to answer any of your questions. 
102 


30463.084

Senate Committee on Environment and Public Works 

Subcommittee on Clean Air and Nuclear Safety 

Hearing entitled, "Cooperative Federalism Under the Clean Air Act: State Perspectives." 

April tO, 2018 

Questions for the Record for Secretary Garvin 

Ranking Member Carper: 

Please provide a response to each question, including each sub-part. 

1. Under this EPA, what are the biggest air pollution challenges that you are facing in 

Delaware and what support do you need from the Federal government to tackle 

those challenges? 

Transport of emissions from upwind states- Over 90% of the pollution that 

contributes to Delaware's ozone problem comes from upwind sources. Delaware seeks 

EPA's support through enforcement of the Clean Air Act Good Neighbor provisions and 

ensure upwind states meet their Clean Air Act (CAA) obligations. 

Transportation emissions -Delaware has implemented tight emission controls on 

stationary sources over the years to reduce its contribution to the ozone problem. As a 

results, emissions from on-road and off-road mobile sources now make up two-thirds of 

all emissions from sources in Delaware. Since Delaware cannot regulate these sources on 

its own, Delaware seeks EPA's leadership in ensuring light duty and heavy duty vehicles 

become cleaner and more efficient in the future, as well as to maintain Delaware's ability 

to adopt California vehicle standards in the future. 

Impacts of climate change- As a low-lying coastal state Delaware has faced and 

continues to face impacts from climate change. Delaware urges EPA to recognize the 

environmental and economic impacts of climate change and provide federal solutions to 

the causes and impacts of climate change. 

2. What are the economic implications for Delaware if the state does not have a strong 

federal partner to address these air pollution challenges? 

Without decisive and timely action by EPA regarding transported emissions, Delaware 

will suffer economically because Delaware businesses are now required to install 

emission controls to expand their operations or to locate in Delaware and are required to 

obtain scarce emission offset credits. A lack of a strong federal partner will doubly 

impact Delaware as facilities choose to locate and expand in upwind states without 

required emission controls, placing even more burden on Delaware due to the health costs 

associated with elevated ozone. 

3. As I mentioned in the hearing, I continue to believe that a 'win-win' solution 

between the automakers and the State of California is within reach regarding light 

duty vehicle standards. There's a way to provide regulatory certainty for 

automakers, while also ensuring that advanced technology is incorporated into the 

Page 1 of 15 
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30463.085

car and SUV fleet and continues to benefit the environment and consumers. Now, 

Administrator Pruitt is fond of saying that California shouldn't be allowed to 

"dictate to the rest of the country" on vehicle standards. Secretary Garvin, 

Administrator Pruitt seems to think this is a California vs EPA issue, but that's not 

true. Can you provide information to the Committee on why these vehicle 

standards are also important for Delaware and other states across the nation? 

Delaware and other CAA 177 states have taken advantage of California's leadership by 

adopting California vehicle standards. The adoption of these standards has been critically 

important to Delaware in reducing ozone-forming pollutants. These light duty vehicle 

emission standards in conjunction with fuel economy standards mean more fuel savings 

for drivers, a healthier environment, reduced dependence on imported oil, and a greater 

selection of vehicle technologies to choose from. In addition to more fuel efficient 

vehicles, more electric vehicles have been developed as a result of these standards, which 

further help to reduce emissions from the transportation sector. The reduction of ozoneforming emissions in Delaware from the transportation sector is essential to provide 

healthful air to its citizens. Vehicle emissions are detrimental to the public's health and 

quality of life, especially to vulnerable populations such as children and the elderly. 

In Delaware, the reduction of greenhouse gas emissions from the transportation sector 

has become an important strategy for the state to mitigate the effects of climate change. 

Since Delaware is such a low lying state, the effects of climate change and sea level rise 

will affect the tourism industry and Delaware's economy. The rest of the world has 

committed to reducing greenhouse gas emissions and several countries have announced 

that within the next few decades, gasoline vehicles will no longer be sold. American car 

companies, the economy and the citizens of Delaware will benefit by transportation 

innovation, and this is why I agree that vehicle standards are a win-win for all. 

4. In 1995, EPA established a "once-in, always-in" policy under the Section 112 Clean 

Air Act air toxic program. This policy prevented major sources of air toxic 

pollution- such as lead, arsenic and mercury - from backsliding on their Clean Air 

Act air toxic requirements. In January 2018, Administrator Pruitt's EPA withdrew 

this policy without any public comment or public health analysis. EPA claimed at 

the time the change would encourage facilities to implement voluntary pollution 

abatement and prevention efforts. However, we know from history and experience 

that voluntary actions by industry do not, alone, reduce air toxic pollution. I, along 

with Senators Markey, Whitehouse and fourteen of our other colleagues, have asked 

EPA for information to help us better understand the rationale and health impacts 

of this decision, but have so far we have received no answers from the agency. 

a. Secretary Garvin, how do you think the "once in, always in" policy 

change effects your state? 

The State of Delaware has several facilities that have the potential to lose 

major source status by the change in EPA policy. However, the existing 

Synthetic Minor and Natural Minor permitting programs in our state will 

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ensure there are no emission increases due to the federally-enforceable permit 

conditions requiring that the facilities operate their control devices. So while 

we believe the withdrawing of the "once in, always in" policy will not result 

in increased air toxic emissions in Delaware, we are concerned that the policy 

revision may result in increased emissions in other states. Delaware is 

impacted by the transport of emissions from upwind areas, and should a 

MACT source in a neighboring state revert to minor source status, air toxic 

emissions may increase concentrations in Delaware. Also, since air toxics are 

often organic compounds, any emission increases in volatile organic 

compounds (VOCs) could worsen Delaware's ozone problem. 

b. Could withdrawing the "once in, always in" policy increase air toxic 

emissions and threaten communities across the nation? 

The elimination of the "once in, always in" policy has the potential to cause 

an increase of air toxic emissions as applicable major source requirements no 

longer apply. EPA itself expressed concerns that a change in this policy would 

have the potential for increased emissions, per a 1995 letter from John Seitz 

(then Director of EPA OAQPS), recognizing that a facility's potential 

emissions could fall below the major source thresholds upon achieving 

compliance with the applicable standard. This is because the standard often 

requires installation of a control device and the control device would re-define 

the potential-to-emit (PTE) of the hazardous air pollutant (HAP). For 

example, if the PTE of the facility to emit a single HAP was 100 tons/year, 

and they installed a control device with 99% destruction efficiency, the new 

PTE would be I ton/year. No longer being a major source, the facility would 

not be required to have a major source permit. If the state does not require or 

implement a federally enforceable permit condition that requires operation of 

the control device, the facility could conceivably only operate their device 

some of the time, as long as they ensure they do not emit over I 0 tons/year 

(the major source threshold for a HAP.) This scenario illustrates the 

possibility of increased emissions from rescinding the "once in, always in" 

policy. 

c. Do you believe major sources will voluntarily abate emissions lower than 

current emissions? If not, why not? 

Operating controls on emission units has a cost associated with its operation 

due to energy costs or a reduction in process output. If a change in the "once 

in, always in" policy takes place, facilities may choose to run their controls 

only to the extent to remain at minor source levels. 

d. In other instances, has the state of Delaware been affected by neighboring 

state sources not operating air control technology and what, if anything, 

has this Administration done to address these problems? 

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As it relates to the "once in, always in" policy, Delaware is not aware of such 

an instance regarding a HAP. However, Delaware is significantly impacted by 

ozone precursor emissions from upwind sources (mostly power plants) that do 

not always run their controls. The NOx budget program requires facilities to 

operate under an emissions budget during the ozone season (May- Sept). 

However, facilities choose to not run their controls on high electricity demand 

days to maximize their electricity output. The program allows for this as long 

as a facility does not exceed its ozone season budget but does not account for 

the impact on downwind states due to high daily emissions on days when 

controls are not used. To date, EPA has not implemented a remedy to address 

this program shortcoming. 

5. In an internal2005 EPA document, EPA regional staff cautioned that withdrawing 

the "once in, always in" policy would mean "many sources would take limits less 

stringent than MACT requirements" and the policy change would be "detrimental 

to the environment and undermine the MACT program." 1 The regional EPA staff 

explained that the policy change would mean major air toxic sources "could 

virtually avoid regulation and greatly complicate any enforcement against them" 

and "the cost of the increased [hazardous air pollutant] emissions would be borne 

by the communities surrounding the sources."2 The regional EPA staff were so 

·concerned about revoking the "once in, always in" policy, they stated EPA should 

!!!!! make the policy change without looking "closely at this issue to determine 

whether the likely benefits would be greater than the potential environmental 

costs."3 As a former EPA Regional Administrator, do you agree with these 

statements and does it concern yon EPA has withdrawn the "once in, always in" 

policy without any public health modeling or analysis? 

I believe EPA is ill-advised to withdraw the "once in, always in" policy and I am 

particularly concerned with the way EPA did so without any modeling, analysis, or state 

and public comment. 

6. The Clean Air Act's National Ambient Air Quality Standards, or NAAQS, program 

establishes a federal-state partnership for reducing common air pollutants that 

endanger human health, including ozone- also known as smog. Ozone chokes and 

inflames peoples' airways, and is particular dangerous for children, the elderly, and 

people with lung diseases like asthma. Under the Clean Air Act, EPA is required to 

designate which areas of the country have unhealthy ozone areas and/or contribute 

to downwind air quality problems. This process is vital for states to effectively plan, 

and reduce pollution crossing state borders. Instead of following the law, EPA 

Administrator Pruitt has so far failed to do his job and refused to designate who is 

living in areas with unhealthy ozone. States frustrated with the delay had to sue 

EPA. A court last month ordered EPA to follow the law and issue air quality 

designations. 

1 https://www.npr.org/documents/2006/apr/epa/epa internal !etter.odf 2 https://www.npr org/documents/2006/apr/epalepa internal letter.pdf 3 https;//www npr.org/documents/2006/apr/epalepa internal letter pdf 

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a. In your view, does cooperative federalism mean states have to file 

lawsuits in order to force EPA to uphold its responsibility? 

Cooperative federalism should mean a shared responsibility between EPA and 

the state, whereby EPA supports the needs of the state to meet its obligations 

under the CAA to provide healthful air to its citizens, and for its part the state 

has the freedom to choose the types of programs that it finds most effective to 

meet its obligations. Cooperative federalism should include EPA holding 

states accountable to their impacts on other states. Resorting to lawsuits is the 

antithesis of the spirit of cooperative federalism. 

Within the confines of cooperative federalism is a recognition that federal 

standards must be maintained as a backstop for the citizens of a state that is 

not meeting its CAA obligations. States must be at least as stringent as the 

federal rules but may choose to be more stringent. In cases where a state 

chooses or is bound by state law to be only as stringent as the federal rules, if 

EPA relaxes policy, or establishes rules that are less stringent, businesses will 

pressure local elected officials to follow the federal trend. Less stringent 

federal rules will result in even more transported pollution finding its way to 

Delaware. This is a concern for Delaware in light of the recent New Source 

Performance Standards memos that EPA has issued. Cooperative federalism 

does not mean to me an EPA that ignores the Clean Air Act. 

b. When EPA ignores its Clean Air Act responsibilities, does that ultimately 

hurt states- and industry - because of the ongoing uncertainty? 

Both the citizens of the state and its industries suffer from EPA ignoring its 

CAA responsibilities. The citizens of Delaware continue to suffer unhealthy 

air when EPA does not implement its remedies in seeing that upwind states 

meet their Good Neighbor obligations "as expeditiously as practicable." 

Delaware industries are harmed by the on-going disadvantage of operating in 

an ozone nonattainment area largely contributed by industries in upwind 

states. 

7. How does EPA's actions relaxing federal standards such as New Source Review, 

light-duty and heavy-duty vehicle standards, and climate rules hurt Delaware's 

ability to achieve clean air? 

Over 90% of Delaware's pollution is from sources beyond its jurisdiction. Without 

strong federal oversight Delaware is vulnerable to the impacts of additional air pollution 

that takes place in upwind states that follow relaxed federal standards. Loosening vehicle 

standards would not only result in increased emissions from upwind states, but also 

increase in-state emissions since Delaware cannot address vehicles standards on its own. 

As for proposed changes in climate rules, the potential loss of co-benefit emission 

reductions will further exacerbate Delaware's situation. 

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8. During EPA Air Director Bill Wehrum's previous tenure as Acting EPA Air 

Director under President George W. Bush, he attempted to insert political 

leadership early in the science-based NAAQS-setting process. Do you support this 

idea? If not, why not? 

Sound and rigorous science are the backbone of our ability to protect human health and 

the environment. Policy decisions need to be based on the rule oflaw and sound science, 

it should not dictate either. 

9. EPA Air Director Bill Wehrum is said to be looking at speeding up the NAAQS 

review process, possibly shortening the scientific review process. Do you support 

this idea? If not, why not? 

While there may be an ability to find efficiency opportunities in some aspects ofthe 

NAAQS review process, the research and science included in the review process is 

imperative to the successful outcome of setting a NAAQS that provides for the protection 

of public health and welfare. 

10. Many in Congress would like the change the NAAQS review process from a five 

year to a ten-year process. Do you support this idea? If not, why not? 

With the continued evolution of science, it is important to ensure that standards reflect 

the best available information. It is Delaware's perspective that every five years is a 

reasonable timeframe for repeating that analysis. 

11. What is EPA's role in ensuring states upwind of Delaware are good neighbors? Is 

EPA currently filling that role? 

It is EPA's responsibility to ensure all states address transported emissions through 

enforcement of the Good Neighbor SIPs that each state is obligated to submit to EPA 

three years after a new NAAQS is finalized. EPA is responsible for identifying each 

state's obligation to downwind states and to verifY that submissions are adequate for 

addressing transport. This is not currently being done. 

12. Please explain how critical Delaware's section 126 petitions are for Delaware to 

attain and maintain the ozone NAAQS. 

Delaware petitioned the EPA under Section 126 of the CAA four times in 2016 

identifYing four different upwind power plants (three in Pennsylvania and one in West 

Virginia) that significantly contribute to Delaware's nonattainment of the ozone 

standards. Delaware has complied with the Good Neighbor requirements of the CAA by 

adopting state control measures for the prevention of emissions that would significantly 

contribute to nonattainment, or interference with maintenance, of the ozone NAAQS in a 

downwind area. 

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However, Delaware's ability to achieve and maintain the health-based air quality 

standards for its own residents is severely impacted by sources beyond Delaware's 

borders. This is due to the fact that more than 90% of the ozone levels in Delaware are 

created by the transport of air pollutants from upwind areas. Attainment and maintenance 

of the ozone NAAQS is possible only through additional emission reductions in the 

upwind states, and for this reason EPA's action in favor of these four 126 petitions is 

critical to Delaware's ability to attain the ozone NAAQS. 

Delaware is working collaboratively with other OTC states to ensure that existing NOx 

emission controls on combustion units at large power plants in upwind states be operated 

throughout the ozone season. 

13. In October 2017, EPA issued a proposal to repeal the Clean Power Plan, which 

addresses carbon dioxide pollution from our nation's largest industrial sources of 

carbon pollution, existing power plants. 

a. Do you agree that repealing the Clean Power Plan only provides greater 

uncertainty for the power industry and puts communities at further risk 

to the impacts of climate change? 

Because climate change is currently impacting Delaware's people, natural 

resources, infrastructure and industries, Delaware believes that strong actions 

to mitigate greenhouse gases are necessary to ensure a high quality of life and 

economic vitality for generations to come. 

Delaware conducted a "listening session" on January 8, 2018 to gain 

Delaware stakeholder input on the federal proposal to repeal the existing 

Clean Power Plan. Over 100 stakeholders participated in the dialogue or 

submitted comments to us. The overwhelming majority of responses from our 

stakeholders are in agreement that climate change is impacting Delaware, and 

they were in support of retaining the current EPA Clean Power Plan and 

strongly opposed EPA's proposed repeal. However, we did not need public 

comments to tell us that, the science has shown that Delaware is experiencing 

increased average temperatures, beach erosion, more frequent and damaging 

coastal flooding, loss of tidal wetlands, flooding from extremely heavy rain 

events, and heat waves. Delaware's infrastructure, agriculture, fisheries and 

ecosystems will be increasingly compromised. 

b. As someone from a coastal state, what is EPA's obligation when it comes 

to climate change? Is this a clear example of cooperative federalism? 

The very definition of cooperative federalism is the concept that all levels of 

government- national, state, and local interact cooperatively and collectively 

to solve common problems, rather than making policies separately. 

Addressing the impacts of climate change requires everyone to work together 

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- not only Delaware, but all 50 states, tribes and territories. The United States 

also needs to show global leadership. 

Delaware has stepped up along with the other eight RGGI participating states 

to reduce greenhouse gas emissions from the power sector by over 45% since 

the program was announced in 2005. With the announcement of our 2016 

Program Review, we continue to achieve further reductions of an additional 

30% by 2030. We remain encouraged as two states- Virginian and New 

Jersey are working toward participating with RGGI beginning in 2020. 

c. Please explain bow the Clean Power Plan allowed states the flexibility to 

meet emission goals and continue current state actions that address 

climate change. 

Delaware was pleased by the commitment of EPA to tackle head-on the 

challenge of reducing carbon emissions from existing power plants, which 

comprise the nation's largest source of greenhouse gas emissions, while 

respecting the needs of each state. 

Given the dramatic success of Delaware in lowering carbon emissions from 

power plants while at the same time growing our economy, we believe the 

Clean Power Plan provides sufficiently flexible, yet protective, federal 

guidelines that empower states to continue to develop and implement marketbased greenhouse gas (GHG) emission reduction programs designed to work 

for Delaware and our region. Our experience with RGGI clearly demonstrates 

that regional cooperation can achieve the most cost-effective emission 

reductions, enable a transition to a lower-emitting and more efficient power 

sector and create economic benefits and jobs across the United States. 

d. Delaware bas already acted on climate change, bas the state seen any cobenefits from reducing carbon pollution? What other benefits have the 

state seen from carbon-reduction programs? 

While addressing climate change and regulating C02 emissions, Delaware has 

seen a significant reduction in harmful co-pollutants (NOx and S02). These 

co-pollutants have serious effects on public health in Delaware and across the 

region. 

14. EPA is considering replacing the Clean Power Plan with regulations that will have 

very little, if any, carbon emission reductions from the power sector and will likely 

increase electricity costs and traditional air pollution emissions, such as sulfur 

dioxide. Harvard's School of Public Health recently reported that if the agency 

focused solely on an "inside the fenceline" approach as proposed in the 2017 

Advanced Notice of Proposed Rulemaking (ANPRM), there would be an estimated 

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increase in sulfur dioxide emissions by 3% and could result in premature lives lost. 4 

At the same time, a majority of the carbon dioxide emission reductions and all the 

energy efficiency measures in the Clean Power Plan are not included in the 

ANPRM. It is difficult to even compare the ANPRM with the Clean Power Plan, 

which will save an estimated 3,500 lives and reduce electricity bills by $85 a year. 

Do you have concerns with the EPA's ANPRM? If so, please explain. 

Climate change is impacting Delaware's people, natural resources, infrastructure and 

industries, and Delaware believes that strong actions to mitigate greenhouse gases are 

necessary to ensure a high quality of life and economic vitality for generations to 

come. Delaware conducted a "listening session" on January 8, 2018 to gain Delaware 

stakeholder input on the federal proposal to repeal the existing Clean Power Plan. Over 

100 stakeholders participated in the dialogue or submitted comments to us. The vast 

majority of responses from our stakeholders are in agreement that climate change is 

impacting Delaware, and they are in support of retaining the current EPA Clean Power 

Plan and strongly opposed EPA's proposed repeal. However, we did not need public 

comments to tell us that, the science has shown that Delaware is experiencing increased 

average temperatures, beach erosion, more frequent and damaging coastal flooding, loss 

of tidal wetlands, flooding from extremely heavy rain events, and heat waves. 

15. As I mentioned in the hearing, Senator Udall and I sent a Ietter5 to EPA regarding 

concerns about a proposal that would allow some of the dirtiest heavy-duty diesel 

trucks, called glider trucks, to circumvent clean air cleanups. Glider trucks look 

like new trucks outside, but are equipped with old, high-polluting diesel engines on 

the inside. As we state in the letter, according to internal agency research - not 

released until after EPA published this proposal- a new 2017 glider truck can emit 

up to 450 times the particulate matter (PM) pollution, and up to 43 times the nitrous 

oxide (NOx) pollution, of model year 2014 and 2015 trucks. Other EPA analyses 

concluded that, if left unregulated, glider vehicle emissions could prematurely kill 

thousands of people, and increase instances of lung cancer, chronic lung disease, 

heart disease, and severe asthma attacks. This is additional pollution that will be 

emitted in my state, in your state and states across the country. I fear that if this 

proposal went final, it could further burden states already struggling to meet 

ambient air health standards. 

a. Do you support the EPA's November 16, 2017 proposal to repeal air 

emission standards for glider trucks? If so, why? If not, why not? 

Delaware does not support EPA's proposed repeal of emission standards for 

glider trucks. Those emission standards and other requirements applicable to 

heavy-duty gliders included in the final Phase 2 truck rule close a "loophole" 

for glider vehicles and glider kits beginning in January 2018. This loophole 

4 https·//cbge hsph.harvard.edu/replacing·clean-power-plan-%E2%80%9Cinside-fence-line%E2%80%9D-altemative-would-dO:more-hanndoing-nothing 

~ 

s httns · 1/wwW epw .senate. gov/public/index cfm/20 18/3/carner-uda!l:auestion-epa-decision-to-repea!-air:emissions-standards-for-high-oollutingPage 9 of 15 
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allows used diesel engines, with no limit on age, to be installed into new 

glider kits without meeting the current engine standards. Closing this loophole 

will prevent hundreds of thousands of tons of nitrogen oxides (NOx) and 

diesel particulate matter (PM) from being emitted into the air each year 

nationwide. NOx is an ozone precursor and EPA has recognized PM as a toxic 

air contaminant. The proposed rule would allow that loophole to remain open 

and result in increased air pollution in every part of the country. 

Reducing emissions from mobile sources- particularly those, like gliders, that 

are uncontrolled or under-controlled- offers the most cost-effective 

opportunities for NOx and PM reductions. The glider requirements 

promulgated in the Phase 2 rule would not only eliminate substantial 

emissions ofNOx and PM, they would do so very cost effectively. lfthese 

requirements are repealed or amended, it will be difficult for Delaware to seek 

reductions and to cost-effectively compensate for the magnitude of the 

emissions that will occur. The proposed repeal could potentially mean more 

regulation and higher costs for stationary sources, possibly power plants, 

manufacturing facilities and small businesses, among others. 

b. Are you as troubled as I am that this proposal appears to largely benefit a 

single company? If not, why not? 

We are deeply concerned that EPA used data and drew inappropriate 

conclusions based on testing data that lacked the rigor of testing expected for 

purposes of certification and that did not comport with valid heavy-duty diesel 

emissions testing. 

c. Comments on the glider proposal submitted by the Diesel Emissions 

Reduction Act (DERA) Coalition, which is a broad coalition of 

environmental, public health, industry and state groups who support 

clean diesel, included the following statement: 

"We are concerned that EPA's decision to encourage the 

continued proliferation of older engines through the glider 

industry would increase emissions from medium and heavy-duty 

vehicles and undermines the work of the Coalition and cooperative 

federalism with the EPA and states."6 

Do you share the DERA Coalition's concerns? If not, why not? 

Yes, Delaware is very concerned that this repeal will result in undoing the 

emission reductions we have achieved by investing in the Diesel Emissions 

Reduction Act (DERA). 

d. Should the federal government continue to focus on replacing and 

retrofitting dirty diesel engines, rather than putting dirty diesel engines 

6 hnp://www.lung.org/assets/documents/advocacy-archive/dera-coalition-comments-re.pdf 

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Senator Markey: 

back on the road? Why or why not? 

Yes, it is important to continue to retrofit and replace dirty diesel engines. 

Over the past decade, the U.S. Congress has appropriated hundreds of millions 

of dollars under DERA to fund projects to reduce diesel exhaust from older 

engines. Further, Delaware has put its own funds toward DERA projects 

under a voluntary matching program. EPA has estimated that the DERA 

program is responsible for total lifetime emission reductions of 335,200 tons 

ofNOx and 14,700 tons of PM. A repeal of the glider requirements would 

result in NOx and PM emissions that would eclipse the reductions achieved to 

date under the DERA program and undo millions of dollars of protections that 

come from federal and state investments. 

16. On April12, 2018, President Trump issued a memorandum on the National 

Ambient Air Quality Standards (NAAQS). In this memorandum, President Trump 

ordered the Environmental Protection Agency (EPA) to speed up its reviews and 

processing of permits and plans under the Clean Air Act, including processing State 

Implementation Plans (SIPs) within 18 months and preconstruction permit 

applications within one year. 

a. Can you describe for me the process for Delaware to create SIPs for 

regulations under the Clean Power Plan? Please include detail on bow much 

time and public engagement is required to create a comprehensive SIP. 

The development of new or revised regulations requires the adherence to a 

process that includes numerous administrative steps to ensure the proposed 

changes are reviewed for technical accuracy and that public input is solicited 

through public workshops, a public meeting, and allowing the submission of 

comments for the record. All comments received are addressed through the 

development of a response to comments document that is including in the hearing 

officer's report. 

The subsequent development of a SIP, such as required by various CAA 

provisions (infrastructure SIPs, attainment demonstrations, and the adoption of 

Delaware regulations into the SIP for federal enforceability, to name a few) to 

convey required documents to EPA for inclusion in Delaware's SIP must also 

adhere to a public notice and hearing process. The development of major SIPs can 

take up to two years to complete. 

b. Do you think an unfunded mandate to speed up processing will result in 

better review of SIPs? 

In the past EPA has delayed reviews of Delaware's submitted SIPs which have 

led to uncertainty with Delaware's development oflong-range plans. When EPA 

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has not promptly acted on SIPs submitted by other states, specifically on Good 

Neighbor portions of the Infrastructure SIP required within three years of a newly 

revised NAAQS, this leads to inaction by states in meeting their CAA obligations 

and has prolonged the impact of upwind emissions on Delaware's air quality. 

As such, I support EPA's decision to complete reviews of SIPs in the timeframes 

established by the CAA. I do not support an expedited review at the expense of 

the thoroughness of those reviews, or in short-cutting the public comment 

processes that ensure that differing view have been vetted. 

c. What might tbe public bealtb consequences be of a federal mandate that 

requires a shorter process for creating SIPs in states like Delaware? 

I do not believe EPA is recommending a shorter process for creating SIPs at this 

time, but if EPA were to make such a recommendation, the thoroughness and 

quality of SIP submissions from Delaware and other states could be 

compromised. 

d. In your opinion, what could EPA or Congress do to improve tbe SIP review 

process while still maintaining a strong emphasis on accurate science and air 

quality protection? 

A state and their regional office should work more closely in the development of a 

SIP. In this way, the regional office will be more prepared when it comes to the 

review of the formal submission and the state will have a better understanding of 

EPA's expectations. The review efforts by a regional office must ensure that the 

submitted SIP is accurate and technically sound, and that EPA holds accountable 

the state in meeting its CAA obligations through the SIP submission. This is 

occurring between Delaware and EPA Region III, but it should happen across the 

country. 

17. On April24, 2018, EPA Administrator Scott Pruitt announced a proposed rule that 

would ban EPA from considering studies that include non-public data when 

developing regulations. 

a. How would this rule impact regulations that EPA establishes in order to 

carry out its mission of protecting public health, including regulations on 

clean air? 

An incredible amount of data is relied on to establish the basis for developing 

regulations or to revise a NAAQS. In order to obtain a complete picture of the 

need for a regulation or a revision of a NAAQS, all credible studies and 

information should be available to those tasked with providing an informed 

recommendation. Limiting data and studies to only publicly available information 

may lead to an inappropriate recommendation. Epidemiological studies used to 

determine if there is a need to revise a NAAQS is crucial, and the potential lack of 

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consideration of some studies may result in a regulation or a NAAQS that does 

not provide the level of air quality protection warranted. 

b. What might the consequences ofthis proposed rule be in Delaware, including 

for the health of citizens? 

Using ozone as an example regarding a NAAQS review, if a subset of studies that 

are publicly available leads EPA to maintain the standard rather than 

strengthening it, but non-publicly available, yet peer-reviewed and credible, 

studies show a need for a lower standard based on health outcomes, then the 

public would be impacted by not lowering the standard. 

18. On January 25,2018, EPA Assistant Administrator Bill Wehrum issued a guidance 

memorandum that rolled back the "once in, always in" policy that required major 

sources of hazardous air pollutants to install the maximum achievable control 

technology. This policy works to cut down emissions of 187 dangerous toxic 

pollutants like arsenic, mercury, benzene, and PCBs. 

a. Would the withdrawal ofthe "once in, always in" policy increase air 

pollution in your state? 

The State of Delaware has several facilities that have the potential to lose 

major source status by the change in EPA policy. However, the existing 

Synthetic Minor and Natural Minor permitting programs in our state will 

ensure there are no emission increases due to the federally-enforceable permit 

conditions requiring that the facilities operate their control devices. So while 

we believe the withdrawing of the "once in, always in" policy will not result 

in increased air toxic emissions in Delaware, we are concerned that the policy 

revision may result in increased emissions in other states. Delaware is 

impacted by the transport of emissions from upwind areas, and should a 

MACT source in a neighboring state revert to minor source status, air toxic 

emissions may increase concentrations in Delaware. Also, since air toxics are 

often organic compounds, any emission increases in volatile organic 

compounds (VOCs) could worsen Delaware's ozone problem. 

b. If so, do you have an estimate of how much or which pollutions may increase 

in your state? 

No 

c. How many facilities in your state could take advantage of this new guidance? 

Three 

d. Have any facilities contacted you about taking advantage of this new 

guidance? 

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We have contacted one of the facilities and they are not interested in taking 

advantage of the new guidance at this time. We have not discussed this with the 

other facilities. 

Senator Whitehouse: 

19. Like my home state of Rhode Island, Delaware is a downwind state. Unfortunately, 

due to prevailing wind patterns and the mobility of air pollutants, states in the 

Northeast suffer as the "tailpipe ofthe nation." Can Northeastern states combat air 

pollution alone, and if not, what should EPA be doing to help us? 

Several years ago, Delaware performed what is called "zero-out" modeling, whereby 

photochemical regional modeling runs are conducted using emissions from the eastern 

third of the country, except that emissions from Delaware are reduced to zero. Even with 

no Delaware emissions, the modeling indicated nonattainment levels of ozone in 

Delaware based on typical summertime weather. Clearly, Delaware cannot meet the 

ozone standard without EPA requiring upwind states to reduce transported emissions. 

20. Like my home state of Rhode Island, Delaware is a coastal state with a long 

coastline vulnerable to the rising seas caused by climate change. While states, 

municipalities, businesses, universities, and other groups can and are taking steps to 

reduce their carbon emissions, are state and local efforts sufficient or do we also 

need federal policies such as the Clean Power Plan? 

Delaware cannot on its own address the impacts of climate change. Strong federal 

leadership will insure that not only is the United States working toward a larger global 

goal to avoid the damaging impacts of a rising sea level but can do so by harnessing our 

country's technological talents and creativity. 

21. Statistics indicate that EPA bas dramatically reduced its enforcement efforts under 

Administrator Pruitt. With respect to air pollution, what impact do you expect 

reduced EPA enforcement to have on air quality in Delaware? 

EPA enforcement staff is undergoing a change in structure that will remove enforcement 

staff from the media they are associated with (air) and co-locate them with other 

enforcement staff. This change is being made nationwide so that all regional offices are 

structured similarly with respect to enforcement. It is unclear how this may affect 

enforcement going forward. It is critical for states to receive support from EPA, in 

resources, scientific and technical assistance, and when appropriate with direct 

enforcement actions. 

22. Do you support the proposed cuts to EPA programs funding state clean air 

initiatives? 

Page 14of 15 
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30463.098

No, Delaware relies on federal grants to provide the current high level of service to 

sources in Delaware and to maintain programs that work to reduce emissions and 

improve air quality. 

23. Do you believe that climate change is occurring and that it is caused by human 

emissions of greenhouse gases? 

Yes. 

Thank you for the opportunity to provide these comments. 

Page 15 of 15 
117 

Senator CAPITO. Thank you all. 

I will begin with my 5 minutes of questions. 

Mr. Alteri, you recently served as the President of the Association of Air Pollution Control Agencies representing State clean air 

regulators from around the country. In that capacity, you sent a 

letter to me and Ranking Member Whitehouse last year outlining 

the AAPCA’s priorities for improving the Clean Air Act, to improve 

coordination between the EPA and State regulators. 

Thank you for the letter, and I would seek unanimous consent 

to submit that letter for the record. 

Without objection, we will do that. 

[The referenced information follows:] 

118 


30463.099

May22, 2017 

The Honorable Shelley Moore Capito 

Chair, U.S. Senate Committee on Environment 

and Public Works Subcommittee on Clean Air 

and Nuclear Safety 

410 Dirksen Senate Office Building 

Washington, DC 20510 

Subject: Clean Air Act Modernization Principles 

Dear Chair Capito and Ranking Member Whitehouse: 

The Honorable Sheldon Whitehouse 

Ranking Member, U.S. Senate Committee on 

Environment and Public Works Subcommittee 

on Clean Air and Nuclear Safety 

456 Dirksen Senate Office Building 

Washington, DC 20510 

Members ofthe Association of Air Pollution Control Agencies (AAPCA)1 are respomible for protecting 

and improving air quality in our states and local areas, which include more than 140 million Americans 

and over 60 peroent of total energy production in the United States. We are also responsible for 

implementing many parts of the federal Clean Air Act. 

We are fmnly committed to ensuring that our cithrens enjoy the benefits of clean air, and we recognize 

that the Clean Air Act has been a remarkable success. Its model of cooperative federalism, which requires 

that state and local governments and the U.S. Environmental Protection Agency (EPA) work together to 

protect the air we breathe, has been responsible for dramatic improvements in air quality since 1970. 

We do note, however, that the Clean Air Act has remained essentially unchanged since 1990. Since that 

time, we have learned a great deal about the science of air pollution and the most effective ways of 

controlling emissions. We believe it is time for Congress to seek targeted approaches to modernizing the 

Act in order to take advantage of the many lessons we have learned over the last two and a half decades. 

Although there is disagreement about many Clean Air Act issues, we all support commonsense 

modernizations to the Act that would simplify the process for state implementation plans, harmonize 

regulatory deadlines, and streamline programs that have become unnecessarily burdensome. These 

iiiiprovements would also clarifY the roles and responsibilities of state and local governments and 

strengthen the model of cooperative federalism that is at the heart of the Clean Air Act. The principles 

outlined below reflect the ,consensus feedback of AAPCA members, but they do not imply endorsement 

from all individual state and local agencies. 

1 AAPCA is a national, non-profit, coll5ensus-driven organization fucused on assisting Slate and local air quality 

agencies and personnel with implementation and te<;hoical iS$oes associated with the federal Clean Air Act. AAPCA 

represents mor;, than 40 stale and local air agencies, and senior officials llom 20 stale environmenral agencies 

cunently sit on the AAPCA Board of Directors. AAPCA is housed in Lexington, Kentucky as an affiliate of The 

Council of State Governments. You can find more infunnation about AAPCA at: hlt!l:/lwww.cJealll!imctorg. In 

addition. more infonnation on AAPCA agencies can be found in the recently released repon, The Greate:&Sl!l!:J. 

Selt{w_!Ql!l: Protlles qml Su<·cess Stories in AI~ Po!lu!i'lll.f&ntrol. 
119 


30463.100

We would be very pleased to work with you and your colleagues to see that these principles are 

incorporated into any effort to update the Act: 

National Ambient Air Quality Standards Reyiews & State Implementation Plans 

• Maintain health-based national ambient air quality standards (NAAQS), but harmonize planning and 

attainment deadlines to allow states to develop multi-pollutant State Implementation Plans (SIPs) for 

attaining and maintaining all NAAQS. As is the case today, there might be different attainment 

deadlines for different NAAQS, but deadlines must take feastbility into account. 

• Consider a more realistic: review cycle that reflects the rigor and time required to meaningfully 

evaluate and, if necessary, revise a NAAQS. 

• Maintain EPA responsibility for reviewing and approving SIPs but require EPA to meet deadlines for 

approval or disapproval. Preserve state primacy by allowing EPA to disapprove SIPs only for clear 

and significant deficiencies that would have a meaningful impact on air quality, and provide that SIPs 

are deemed approved unless EPA disapproves them by the current statutory deadlines. 

• Maintain the current procedure for designating nonattainment areas, but clarify that such designations 

must be made based on data from approved air quality monitors. 

Abillty of State and Local Agencies to Participate in Clean Air Act Suits and Settlemeng 

• Maintain current provisions for citizen suits but ensure that, in any such suit, states, local 

governments, and affected businesses are provided the opportunity to participate as parties. 

• Require any settlement agreement, consent decree or court order arising from such cases to consider 

resource constraints and the views of all parties. 

Permitting 

• Maintain permitting requirements but allow facilities to be built or expanded in any area of the 

country as long as: (I) state-or local environmental officials determine that the facility will not have a 

meaningful adverse impact on human health or the environment; and (2) they employ the best 

available technology to controltheir emissions. 

• Maintain state and local agency discretion in permitting decisions and clarify that permits may be 

challenged only for clear and significant deficiencies that would have a meaningful impact on air 

quality. 

• Provide for a limited exemption ftom Prevention of Significant Deterioration/New Source Review 

permitting for projects determined to be environmentally beneficial based upon a cumulative impacts 

analysis. 

Thank you for your consideration of these comments and principles. If you have any questions, please 

contact cwoods(a1csg.org or (859) 244-8040. 

Sincerely, 

) 

··' 

~~· 

Sean Alteri 

Director, Kentucky Division for Air Quality 

President, AAPCA 
120 

Senator CAPITO. A bit over a year into the Administration, what 

do you perceive has changed with regard to the EPA’s coordination 

with the States, and has it been more collaborative, in your opinion? 

Mr. ALTERI. We have always had a strong working relationship 

with the EPA, but this Administration has been coming to States 

for that technical information as opposed to just imposing its will 

through the Federal implementation plan. We have seen more technical, thorough discussion directly with our State. 

Senator CAPITO. Ms. Vehr, would you have a comment on that? 

Have you seen a difference in the last year in working with the different Administration on the EPA’s coordination between the Federal and States? 

Ms. VEHR. Yes, we have. Echoing Mr. Alteri, we had a prior 

working relationship with EPA, but under this new Administration, we have found that working relationship has improved. EPA 

is listening to the States’ concerns and is interested in developing 

flexible solutions that fit Wyoming’s unique characteristics. 

I would say anecdotally, in my State, with the previous Administration for 8 years, we really asked the EPA to come to our State 

to have a listening session which we were never able to get. 

The EPA did come several months ago and had a very vigorous 

listening session in Charleston, West Virginia, obviously mostly 

around coal. We had all sides of the argument heard in the public 

sector. It was very much welcomed. 

Partly, I see cooperative federalism as the ability to listen. That 

is what you said as well. 

Senator CAPITO. Commissioner Baker, you are from an energy 

State. You mentioned the Clean Power Plan, which was mentioned 

in some of the other testimony, and that without the Clean Power 

Plan we are not going to move forward with the desired capturing 

of carbon and cleaning the environment. 

Could you again comment on that and what Texas is doing? You 

said they are the biggest producer of carbon in the country. 

Mr. BAKER. Inside the Clean Power Plan, there were glide paths 

laid out that States had to meet to comply with the plan itself. I 

believe our first year was early in the 2020s. We will be within 5 

percent of that number by 2019. That is without any plan currently 

in place. 

Senator CAPITO. To what do you attribute that? 

Mr. BAKER. Honestly, Chairman, a number of things. I think efficiency with our industrial sector, but I also would say, honestly, 

cheap natural gas has had a direct impact. We have had 12 coal 

fired ETUs that will be retiring, have retired, or are retiring soon. 

The market itself, I think, is driving us to do what the Clean 

Power Plan set out to do, and on top of that, massive wind saturation into our power supply. 

Senator CAPITO. I would like to ask a simple question of everyone. Senator Whitehouse, in his opening statement, got me thinking about this. He mentioned that States would want to walk away 

from the core mission of less pollution. 

Ms. Vehr, is that the desire, to walk away from the core mission 

of the Clean Air Act and a mission of less pollution; yes or no? 

Ms. VEHR. Absolutely not. 

121 

Senator CAPITO. Mr. Alteri. 

Mr. ALTERI. No. 

Senator CAPITO. Mr. Baker. 

Mr. BAKER. No. 

Senator CAPITO. Mr. Rodriguez. 

Mr. RODRIGUEZ. No. 

Senator CAPITO. Mr. Garvin. 

Mr. GARVIN. Being downwind, I hope not. 

Senator CAPITO. I wondered if somebody was going to take more 

than just a yes or no. Thank you, Mr. Garvin, for having faith and 

adding a few extra words. 

Mr. Alteri mentioned the sue and settle issue. Could you explain 

to me how that works in terms of the ground level ozone provisions? 

Mr. ALTERI. I think they have outcomes that are not consistent 

with the Clean Air Act. Currently our utilities are being forced to 

add additional controls at extreme cost, whereas those areas that 

maintain the standard on the East Coast do not have to provide 

any additional controls. 

I think it is a negative outcome for our State and really unnecessary. 

Senator CAPITO. Does anyone else wish to comment on the sue 

and settle? 

Mr. BAKER. I would like to make one comment. 

One of the more egregious sue and settle complaints I think we 

would have goes back to 2010 to 2011, which came out of a case 

over timing reviews for NSPS. Through that consent decree and 

that decision, EPA decided new source performance standards were 

now going to be applicable to all oil and gas wells, whereas we 

have years and years and years of legal interpretation that said 

NSPS did not apply. 

With that one decision, essentially overnight, we had to regulate 

hundreds of thousands of new sources. The problem with that is 

obviously the cost to do that, since we are a delegated State, falls 

on my agency, and trying to figure out how to do that through a 

simple reinterpretation of the way the Clean Air Act had been interpreted since the amendments of the early 1990s. 

Senator CAPITO. Thank you. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Madam Chair. 

Thank you again to all the witnesses for being here. 

I would like to open my questioning by reading a quotation from 

Freddie Mac, the U.S. mortgage backer. This relates to harm to 

coastal housing and property markets: ‘‘The economic losses and social disruption may happen gradually, but they are likely to be 

greater in total than those experienced in the housing crisis and 

Great Recession.’’ 

Those of us from coastal States take warnings like that from our 

Federal mortgage providers pretty damned seriously, as I think you 

would expect we should. Could you tell me, Ms. Vehr, what is the 

relationship between carbon dioxide emissions and sea level rise, 

cause and effect? 

Ms. VEHR. Cause and effect? I know there are changes occurring 

in our environment currently that people are studying. I am not an 

122 

expert in that area, so I would have to defer to the studies others 

are doing in that area. 

Senator WHITEHOUSE. Mr. Alteri, can you do any better than 

that? 

Mr. ALTERI. No. I am not certain of the direct relationship between the CO2 emissions and sea level rise. 

Senator WHITEHOUSE. You have a coast, Commissioner Baker. 

Maybe you can do better. What do you know about this? 

Mr. BAKER. In certain areas, I think there is a direct correlation. 

Senator WHITEHOUSE. What do you mean in certain areas? 

Mr. BAKER. For example, in Texas, the relative sea level rise that 

we are experiencing comes from man-made things like subsidence 

and man-made structures that extend into the Gulf of Mexico. 

Senator WHITEHOUSE. I guess my question is what is the role of 

carbon dioxide emissions in contributing to that sea level rise, if 

any? What is your understanding of that? 

Mr. BAKER. In Texas, I do not know what the science says specifically about that regarding our coast. 

Senator WHITEHOUSE. How about generally if not specifically? 

What is the science generally on the correlation between carbon dioxide emissions and sea level rise? 

Mr. BAKER. I think I answered that it is correlated. 

Senator WHITEHOUSE. OK. That is a start. 

Mr. Rodriguez, California is coastal. 

Mr. RODRIGUEZ. I will just say I work with scientists all the time. 

It is sometimes hard to get them to agree with certainty on anything. In this particular area, the overwhelming consensus is, and 

I have no doubt, there is a direct correlation between the CO2 emissions and changes in the weather, including sea level rise. 

Senator WHITEHOUSE. Do you have coastal communities actually 

having to plan for that? 

Mr. RODRIGUEZ. Absolutely. We just agreed to a new set of guidelines for development along our coast just recently at our Ocean 

Protection Council. We are preparing for sea level rise. We are already seeing it along our coasts. 

Senator WHITEHOUSE. Mr. Garvin, you are like me. You are 

coastal, and you are downwind. Your friend, Mr. Rodriguez, is 

downwind of China. We are downwind of the coal plants in West 

Virginia, Ohio, Pennsylvania, Kentucky, and so forth. 

For a long time we have been on the receiving end of their pollution and do not much appreciate the high smoke stacks that have 

been built to make sure that pollution goes out of their States and 

lands on ours. 

Take a stab at what sea level rise means for Delaware and 

whether it connects to the carbon emissions from these plants. 

Mr. GARVIN. I want to touch on two things. I completely agree 

with my colleague from California. 

When we look at this issue in Delaware, our two largest economic generators are tourism and agriculture. When you talk about 

climate change, part of it is sea level rise issues, and part of it is 

creating more frequency of storms, more severe storms, higher 

droughts, and more flooding across the board. 

123 

That has direct impact on our two largest economic engines in 

the State of Delaware. We are seeing those impacts particularly 

along our coastline now and have been. 

Senator WHITEHOUSE. What do coastal communities in Delaware 

have to start doing now, given the sea level rise that is anticipated 

as a result of climate change and carbon emissions? 

Mr. GARVIN. There are three things going on right now. One is 

we continue to work on renourishment of our coastline to try to 

protect our coastline as much as possible. Our local communities 

are looking at land use decisions, existing structures, and how they 

need to raise and address any new construction. 

Senator WHITEHOUSE. Treatment plants, ports, harbors, all those 

need to be reconsidered? 

Mr. GARVIN. Our wastewater treatment plants and our power 

plants. In addition, as we speak, our Department of Transportation 

is raising Route 1, which connects our coastline along the Atlantic 

coast, by several inches to try not to address the big storms but 

just address the regular storms and the impacts we are having on 

transportation, which also becomes a public safety issue for our 

communities along the coast. 

Senator WHITEHOUSE. Thank you, Chairman. My time has expired. I appreciate that. 

Senator CAPITO. Senator Markey. 

Senator MARKEY. Thank you very much. 

Mr. Rodriguez, welcome. 

Scott Pruitt is now attacking the fuel economy standards which 

were reached in agreement with California and all the waiver 

States along with the EPA and NHTSA in 2010–2011. 

That would reduce our imports of oil by 3.5 million barrels of oil 

a day, roughly equivalent right now to what we import from OPEC 

on a daily basis. It seems like a pretty important thing to do, to 

keep on the books. 

It also is still the largest single reduction that any country has 

ever put on the books to reduce greenhouse gases, that one decision. It is huge. I take a great deal of pride in it because I was the 

House author of that legislation in the same way Senator Feinstein 

and Senator Stevens were the Senate authors of that bill, the 2007 

bill relied upon by DOT. 

What do you think about Scott Pruitt’s statement that the standards are too hard to meet, that it is just an unfair imposition on 

the auto industry? Do you agree with that? 

Mr. RODRIGUEZ. No. We did a very, very thorough technical assessment of the standards and the progress the auto industry has 

made in complying with those standards. 

Back in 2016 and 2017 our Air Resources Board found there was 

no reason to deviate from those standards, that progress was being 

made. In fact, our experience has been if you set the right targets, 

industry will find a way to get there. That seems to be the case 

here. 

We see no reason to deviate from those standards agreed to previously with the Federal administration. 

Senator MARKEY. What do you think about General Motors, Toyota, and the other companies now saying they cannot meet the 

standards? What would be your message to them? 

124 

Mr. RODRIGUEZ. We will continue to work with them and talk 

with them about how we meet these standards. We are always interested in hearing from industry. 

Frankly, they are not quite as dramatic as that. We hear that 

they are interested in talking about some tweaks to the system, but 

I am not hearing anyone say they want to see a wholesale revision 

of the standards. As I said, I think we are making very good 

progress in meeting those standards. 

Senator MARKEY. I appreciate what you are saying, but the 

American Automotive Association speaks for someone. They are not 

out there just talking as though they have a view. That association 

is just Pinocchio to Gepetto; above them are the CEOs of the companies that want the changes. They do not make these decisions 

without that kind of instruction that is coming down to them. 

The CEO of Ford Motor Company has made it quite clear that 

he does not agree with it, but the others, not so much. From my 

perspective, I think that is at the core of the problem we have right 

now. 

What would this represent as an attack on the clean air standards of California and the other 13 States who would see their 

standards compromised? 

Mr. RODRIGUEZ. Transportation, obviously, is a very, very significant part of the air pollution puzzle. We have made tremendous 

progress through the years, but we need to continue to clean up the 

air. 

Frankly, our goal is to move to electric and fuel cell vehicles and 

zero emission vehicles because that is the only way we can meet 

our greenhouse gas emission standards. We are fully committed to 

continuing to work to enforce these standards and continuing to 

work with the auto industry to bring about this change in technology that will change us over to zero emission vehicles. 

Senator MARKEY. Scott Pruitt talks about cooperative federalism 

as the way in which he wants to operate. In your opinion, would 

this be a direct attack on cooperative federalism given the agreement that was reached 6 years ago to increase the standards? 

Mr. RODRIGUEZ. We look forward to a dialogue with EPA. We 

really have not had it yet on the technology. We had worked with 

the previous EPA administration on the technology and agreed 

with them and their assessment of the standards and success in 

meeting those standards. 

In answer to your question, no, we have not seen that sort of cooperative federalism exhibited by this administration. 

Senator MARKEY. You are not saying you have not yet had a conversation with them? Is that what you are saying? 

Mr. RODRIGUEZ. There have been some general conversations but 

certainly nothing on the technical level that you need to do if you 

are going to look at standards. 

Senator MARKEY. Do you think that makes sense, that Scott Pruitt says he is going to recommend revocation of those rules without 

even having had conversations with the other party to the negotiation to determine whether or not the technical standards can be 

met? Do you think that is cooperative federalism? 

Mr. RODRIGUEZ. No. 

Senator MARKEY. No. OK. I thank you. 

125 

Thank you, Madam Chair. 

Senator CAPITO. Senator Barrasso. 

Senator BARRASSO. Thank you very much, Madam Chair. 

Ms. Vehr, I would like to ask you a couple of things. 

Your testimony demonstrates the importance of cooperative federalism because many of the issues we face in Wyoming are unique 

to the State of Wyoming, given our size, location, high elevation, 

topography, and economy, which are all quite unique. 

What can the EPA do to work with Wyoming to address these 

unique characteristics and how they affect issues such as background ozone, exceptional events, and things like wildfires? 

Ms. VEHR. First, start by listening to what Wyoming has to say. 

Second would be to timely act when Wyoming makes a request. 

Third would be to provide some of the technical tools. States like 

Wyoming consume a lot of resources to develop modeling and the 

like. 

Senator BARRASSO. We talk about and look at the fact we have 

been so successful in balancing the economic benefits from using 

our natural resources for energy production in Wyoming while ensuring views in our national parks are not impacted by issues related to air pollution. 

This is why striking that proper balance, you discuss, between 

State and Federal decisionmaking in the implementation of say the 

Regional Haze Program is critical. Is EPA addressing your concerns about the role Federal land managers play in State plans as 

it relates to regional haze? 

Ms. VEHR. I think they are starting to. It is critically important 

that States work with EPA, but it is also equally critically important that all the Federal land managers in EPA have a working relationship. 

Wyoming does participate in these discussions so that we have 

other Federal land managers, EPA, and the State at the table so 

all of our voices are heard and we can achieve improved air quality. 

Senator BARRASSO. Director Alteri, one of the greatest concerns 

about the Obama administration’s EPA, for me at least, was the 

agency’s use of a tactic known as sue and settle. This allowed the 

EPA to make decisions that had a major impact on States without 

including States in the decisionmaking process at all. 

How will the recent directive issued by Administrator Pruitt on 

sue and settle be helpful to States? 

Mr. ALTERI. As it relates to our State implementation plan, the 

directive from Administrator Pruitt mandates that States have a 

voice at the table and a seat at the table. I think that will give us 

an opportunity to explain the technical limitations or technical 

abilities to achieve these standards. 

Senator BARRASSO. Ms. Vehr, the prior Administration issued 

some rules that imposed, I thought, really burdensome requirements on States because the EPA charged States, like ours, affected air quality in other States. 

Can you talk a bit about your perspectives on these air transport 

issues? Should we also think about international effects on our air 

quality? 

Ms. VEHR. Definitely, the international effects. This is still an 

evolving area of science, both on ozone and visibility. The modeling 

126 

Wyoming and other western States did for the first round of regional haze showed visibility in the west was impacted by international transport of pollutants. 

The ozone modeling EPA conducted for the Cross State Air Pollution Rule Update looked at pollution. As we dove into that modeling, we realized there is still an area that needs to be examined 

with international transport. It does affect. 

Last week at our AAPCA meeting we heard a speaker who 

talked about reduction in international pollution, which may help 

solve the ozone issues other States are experiencing. Yes, international transport is important. 

Senator BARRASSO. Director Alteri, I would ask if you would like 

to weigh in a bit or if there is anything you would like to add to 

what Administrator Vehr had to say. Can you talk a bit about how 

the State of Kentucky has been affected by some of these EPA regulations about emissions from one State to another? 

Mr. ALTERI. Ms. Vehr mentioned models. The models are limited. 

Former Assistant Administrator McCabe mentioned that EPA has 

not fully evaluated all of the other stationary sources beyond 

EGUs. Those limitations have imposed greater reductions for us 

than they would in the maintenance areas in Maryland and other 

places. 

Also, there was a statement as well that if emissions from Kentucky were reduced in total, it still would not affect and bring the 

areas in the Northeast into compliance. 

Senator BARRASSO. To zero? 

Mr. ALTERI. To zero. 

Senator BARRASSO. If emissions went to zero, it still would not 

help the others? 

Mr. ALTERI. It still would not bring their areas into compliance. 

Senator BARRASSO. Thank you. 

Thank you, Madam Chairman. That was very interesting. 

Senator CAPITO. Thank you. 

Senator Carper. 

Senator CARPER. Mr. Alteri, my mother lived in Kentucky the 

last 2 or 3 years of her life in a place called Ashland. I had a 

chance to go there a lot. My sister lives in Winchester. I had a 

chance to go see her and her family. I have a good deal of love 

going to Kentucky, a beautiful State. 

Mr. ALTERI. Thank you, Senator. 

Senator CARPER. I applaud the reduction in emissions that you 

talked about in your testimony. 

When Frank Garvin, our Secretary, spoke, I think he mentioned 

that something like 90 percent. 

Frank, repeat what you said; 90 percent? 

Mr. GARVIN. Over 90 percent of ozone comes from outside our 

borders. 

Senator CARPER. That is not good. That is not good. 

Earlier in my life I was privileged to serve as Governor of Delaware. I remember having a conversation with folks from Maryland, 

folks who made their living harvesting creatures that live in the 

Chesapeake Bay. They had the big dead spots in the Chesapeake 

Bay, and the sea grass stopped growing, and their ability to make 

a living was diminished. 

127 

They said to us, we needed to do something about it. We said, 

why? They said because the Nanticoke River that flows through 

Delaware into Maryland and into the Chesapeake Bay was carrying a lot of nutrients from when we clean out chicken and poultry houses in Delaware, our farmers were, in some cases, just back 

stacking it up on their farm fields. In other cases, they spread it 

across their farm fields for the value of the nitrogen and phosphorous. 

We were doing it without a lot of thought. It would rain and the 

nutrients would wash into ditches, creeks, rivers, and the Chesapeake and degrade the quality of their water. It was not just our 

water, but Pennsylvania, Virginia, and other places. 

The folks from Maryland said, how would you like to be making 

your living by harvesting God’s creatures who live in the Chesapeake Bay, how would you like to be trying to make your living, 

and your neighbors were all polluting the place where you are trying to make a living? 

We said, you know, you have a pretty good point there. I think 

they even pointed out that was not really consistent with the Golden Rule, treat other people the way we want to be treated. 

We put together a farmer led initiative called the Nutrient Management Commission that ultimately worked with environmental 

groups as well as with the Department of Natural Resources, including Christophe Tulou’s successor, Nick DiPasquale, and came 

up with a way to dramatically reduce those kinds of runoff and 

emissions and the damage we were doing to our neighbors. 

We have been on both sides of this equation. We have been the 

neighbor who degraded the water quality of our neighbor, Maryland. We are the neighbor who receives emissions from my native 

West Virginia, from western Pennsylvania, from Kentucky where 

my sister now lives, from Indiana, Tennessee, and Virginia, all 

kinds of States. 

My colleagues are sick of hearing me say this, but when I was 

Governor of Delaware, the kind of emissions our Secretary talked 

about, we could have shut down our State, cut off the road, and basically shut down the economy. We still have been out of compliance. That is just not fair. 

There is a need here for a Federal role. Other States, upwind 

States, those of us who live at the end of America’s tailpipe— 

whether it is Delaware, Rhode Island, New Jersey, Maryland, all 

of us—this ain’t right. 

There is a need for the Federal Government—when States will 

not do enough to help us out—to make sure that you do more. I 

am going to ask Secretary Garvin to comment on that, if you 

would, because you have to live with this. 

Mr. GARVIN. I appreciate that. If you look at the State of Delaware, the two biggest things we are talking about here is our transport that we are receiving which is over 90 percent, and the second 

piece is transportation. Those are really the two biggest pieces that 

we have when looking at emissions. Both of those we really need 

cooperation and partnership with both our fellow States, as well as 

leadership from our Federal Government. 

We have been the ones who have taken advantage of all the work 

that California has done because we could never have done it on 

128 

our own. When you look at the Mid-Atlantic and the Northeast and 

the amount of vehicle traffic we have, for us to address air issues, 

we are going to need to continue to work on the transportation 

side. 

We are continuing to look inside the State on how we build a 

much better electric infrastructure for vehicles, but we are really 

going to rely on cooperative federalism and cooperation with our 

fellow States on both the transport issue and the transportation 

issue. 

Senator CARPER. Thank you. 

Madam Chair, if we have a chance to ask another question, I 

would like to come back and maybe use 2 minutes to ask one last 

question. 

Senator CAPITO. Yes. I will go to Senator Inhofe. 

I did not know what your time constraints might be. 

Senator INHOFE. I would like to hear his question. 

Senator CAPITO. OK. Go ahead. 

Senator CARPER. Over a number of years, we have made real 

progress going back to when I think Jerry Ford was President and 

more recently since 2007, we have made real progress in reducing 

emissions, to which Secretary Garvin alluded, to combat cars, 

trucks, and vans. 

One of the things Senator Inhofe and I worked on together was 

to reduce diesel emissions. That was actually pioneered by George 

Voinovich, a former colleague. 

We have the opportunity to continue to make progress and do so 

with a win-win situation where we provide the automakers some 

flexibility in the near term, maybe 2021–2025, in return for making 

clear what the out year targets could or should be particularly for 

light trucks, SUVs, and so forth. 

The auto industry needs certainty. They do not want to have to 

build one model for California and a different model car, the same 

vehicle for 49 other States, or even 40 other States. 

I think there is a real opportunity here to make clear the 

endangerment finding and the Clean Air Act are compatible with 

one another, that there is a way to give the auto industry some 

flexibility in the near term, 2021–2025, in return for some greater 

rigor in standards say after 2030 in a way that is respectful of 

California’s leadership role in this and for the rest of us. 

Is that a pipe dream? Is that reality? Can you give me a reality 

check on that idea? 

Mr. RODRIGUEZ. As I said, we believe the standards, we previously agreed to, are attainable, but certainly we are willing to sit 

down with the auto industry, talk about the technology, and look 

out to 2030. We want to work toward a solution that will keep us 

moving forward. 

No, it is not a pipe dream. We will talk to the industry and work 

with others to come up with a solution. 

Senator CARPER. I would just say to my colleagues, one of the 

things I try to do every year in January is go to the Detroit Auto 

Show. You all have probably been there as well. I have been doing 

it for years. 

I met with representatives from 10 different auto companies, 

both foreign and domestic, all who basically said give us some addiVerDate Aug 31 2005 06:57 Jul 05, 2018 Jkt 000000 PO 00000 Frm 00134 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\30463.TXT SONYA
129 

tional flexibility in the near term and terms for greater certainty 

but greater rigor in the out years out to 2030. I really do think 

there is a win-win here. I hope we will take advantage of it. 

Senator CAPITO. Thank you. 

Senator Inhofe. 

Senator INHOFE. Thank you, Madam Chair. Thank you and the 

Ranking Member for having this hearing today. 

I just got here, so I do not know what has been asked. I have 

been chairing the Senate Armed Services Committee. We sometimes have that problem. 

Our States should be seen as a partner. I think that is what is 

going on that is different now than it was during the last Administration and not looking at them as opposition. The current EPA Administrator, Scott Pruitt, has made that his mission and is delivering on that promise. 

In the first year as Administrator he has met with 34 Governors 

from both parties, visited 30 States and U.S. territories. Under his 

leadership, EPA has acted on 322 State implementation plans— 

SIPs—and has averaged turning one Federal FIP into a SIP each 

month. 

In comparison, the Obama administration imposed more than 50 

FIPs on our State partners. 

I understand some people think what our Administrator has 

been doing is a step backward, but they are the ones who think 

somehow the Federal Government or other States should be dictating what we do in our State. I know that is not the feeling of 

our Administrator now. 

I read the testimony today, and I would say that many States 

are seeing positive results from this Administration. 

I have a question for Mr. Alteri. Senator Barrasso already 

brought up the sue and settle problems we have had. I had the 

privilege of chairing this Committee for a number of years. I 

watched that happen. 

In the case of Oklahoma, we were a victim of the sue and settle 

that was taking place. We were sued in northern California courts 

and forced to comply with a settlement that we were not a party 

to regarding the Regional Haze Plan, a decision Congress specifically delegated to the States. 

The Federal plan will cost ratepayers an estimated $282 million, 

and Oklahoma Gas and Electric said the EPA’s rule would ‘‘trigger 

the largest customer rate increase in OG&E’s history while the resulting impact on regional haze would be practically imperceptible.’’ 

Mr. Alteri, does this sound like a reasonable expectation from the 

result of a court case like this? Are you familiar with this? Are 

there other comparable problems? 

Mr. ALTERI. I am. Specific to regional haze, all of the States are 

achieving their glide path or their status update. All of the States 

are achieving those. 

I think when EPA issues Federal implementation plans, it gives 

a negative connotation to the fact we are doing our job. The Federal implementation plans kind of allude that States are not stepping up to the table and doing their job. 

130 

Senator INHOFE. But we are. For a number of years—this is the 

same thing you always get, those who are the more liberal individuals think that someone else can set an example in the case of the 

Federal Government, that somehow they know how to do things we 

do not know how to do. 

It is kind of rewarding actually, as during the last Administration, when we had a partnership program take place with Fish and 

Wildlife, they found the States actually were doing a better job. 

I have a question for Mr. Baker. One of the misconceptions following Hurricane Harvey was that the EPA was missing in action 

in response to the environmental concerns that Texas was potentially facing. 

Your testimony suggested this was not the case at all. Can you 

elaborate on how the EPA was a partner with the State in facing 

the effects of this natural disaster? 

Mr. BAKER. They were with us every step of the way as Hurricane Harvey was coming and in the response. They were actually 

part of a group we call NDOW, the Natural Disaster Operational 

Workgroup made up of our agency, the EPA and the Coast Guard. 

We had table topped hurricanes coming in multiple times. At the 

staff level, they were already prepared. The big difference here as 

opposed to previous administrations was after the hurricane hit, 

and we needed fuel waivers, they acted almost immediately. 

I went through Katrina, Ike, Frieda all in the government. This 

one, by far, was the one where they were the most reactive and 

moved with the most efficiency. We could not have done the things 

we did without them being at the table with us. They actually had 

people in our office with us and in the State Operations Center on 

a daily basis. 

Senator INHOFE. In Texas, you know more about that, you have 

more of them. In Oklahoma, we have tornadoes, not hurricanes, 

but it is the same thing. We have experienced it and know how to 

react to them. I think that needs to be talked about. 

Last, Ms. Vehr, in your testimony you highlight the fact that cooperative federalism is not just implementing Federal decisions but 

being a part of the decisionmaking process itself. You mentioned 

the fact that Administrator Pruitt announced new policies for the 

EPA’s Board of Scientific Counselors, including ensuring a diverse 

composition. 

Why do you think it is important for these boards to be regionally diverse? 

Ms. VEHR. So that all State voices can be heard and the unique 

circumstances in all States are brought to the table to be considered in decisionmaking so there can be flexibility and appropriate 

decisionmaking to lead to better and improved air quality at lower 

cost. 

Senator INHOFE. Thank you very much. 

Thank you, Madam Chair. 

Senator CAPITO. Thank you, Senator. 

I would like to recognize the Ranking Member, who wanted to 

make a quick statement before we close out the hearing. 

Senator WHITEHOUSE. I just wanted to point out that one dimension of the role of the EPA has to do with assuring fairness between separate States. Both Senator Carper and I, as downwind 

131 

States, have lived the world in which, from a State regulator’s perspective, the solution, for instance, to air pollution was to build 

taller smokestacks so that the pollution went up higher into the atmosphere and was carried out of the polluting State and then landed on our State. 

It is very hard to ask Ohio, Pennsylvania, or Kentucky to crack 

down on pollution that is not landing in Ohio, Pennsylvania, or 

Kentucky. It is a tough expectation to have for them politically. 

We could regulate until we are blue in the face in Rhode Island 

but it does not help if what is coming in is coming in and is deliberately being set up to come in on us from out of State. 

It is in that circumstance that the EPA plays an essential and 

vital role. That role cannot be subject to control by the polluting 

State because there is another State involved that is the downwind 

recipient of all of this. 

It is that particular situation, I think, where we have to be very 

careful about how cooperative this federalism gets if you are not 

dealing with the polluted State as well. I just wanted to be clear 

on that point. 

Senator INHOFE. Madam Chair, may I make a response? 

Senator CAPITO. Sure. 

Senator INHOFE. I agree with you in this case. 

Senator WHITEHOUSE. It is true with the water as well, as you 

know. 

Senator INHOFE. However, it is not the case as we just talked 

with Commissioner Baker. In that case, it is quite clear they had 

a lot more knowledge handling their own problems than the Federal Government did. 

Obviously, the case you cite is one where there has to be that interference. We understand that. 

Senator WHITEHOUSE. We end on a happy note. 

Senator CAPITO. Yes. I would just like to reinforce, since we are 

in the land of final comments, at least from my State, the welcome, 

open door policy at the EPA, the willingness to talk, the willingness to understand the implications at every State, whether it is 

a downwind State or a heavy energy producing State. 

I think if the part of cooperative federalism is going to work, cooperative has got to work. I am encouraged by what we see. 

Senator CARPER. Madam Chair. 

Senator CAPITO. In the land of final comments, you can say one 

last thing. 

Senator CARPER. Thank you. 

First of all, thank you for getting me in and out so I could be 

in the Census hearing as well. 

I want to say again Senator Whitehouse really nailed it for those 

of us who are at the end of America’s tailpipe. I would just ask you 

to put yourselves in our shoes, and we will try to do the same with 

respect to other States. 

I would ask unanimous consent to submit for the record the four 

petitions from the State of Delaware to the EPA that ask the agency to require upwind power plants to install or consistently operate 

already installed pollution controls. 

These actions need to occur to help downwind States like Delaware address nonattainment concerns for ozone. 

132 

I have a second UC request, if I could, dealing with glider trucks. 

I would ask unanimous consent to submit for the record a letter 

that Senator Udall and I sent to EPA regarding concerns about a 

proposal that would allow some of the dirtiest, heavy duty diesel 

trucks called glider trucks to circumvent clean air cleanups. 

They look like new trucks on the outside, but they are equipped 

with old, high polluting diesel engines that can emit up to 450 

times the particulate matter pollution and up to 43 times the nitrous oxide pollution of the model 2014 and 2015 trucks. 

Those would be my two UC requests, Madam Chair. 

Senator CAPITO. Without objection. 

[The referenced information follows:] 

133 


30463.101

STATE OF DELAWARE 

DEPARTMENT OF NATURAL. RESOURCES 

AND ENVIRONMENTAL. CONTROL. 

Of"FICE OF THE 

SE.;;:ttiHA.RY 

Gina McCarthy 

Administrator 

89" KINGS HIGHWAY 

DOVER, OELAWAfi'E 1990! 

July 7, 2016 

United States Environmental Protection Agency 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Mail Code: IIOIA 

Washington, DC 20460 

Dear Administrator McCarthy: 

PHo~£: (302) 739·9000 

FAX: (302) 739M6242 

By this letter, the State of Delaware hereby petitim1s the Administrator of the 

Environmental Protection Agency (EPA) under §126(b) of the Clean Air Act (CAA) to find that 

the Brunner Island facility's electric generating units (EGUs), located near York, Pennsylvania, 

are emitting air pollutants in violation of the provisions of Section 110(a)(2)(D)(i) of the CAA 

with respect to the 2008 0.075 ppm ozone NAAQS and the 2015 8-hour 0.070 ppm ozone 

NAAQS. · 

Section 110(a)(2)(D)(i) prohibits any source or other type of emissions activity within a 

State, "from emitting any air pollutant in amounts which will contribute significantly to 

nonattainment in, or interfere with maintenance by, any other State with respect to any such 

national primary or secondary ambient air quality standard." Section 126(b) of the CAA 

provides that, "[a]ny State or political subdivision may petition the Administrator for a finding 

that any major source or group of stationary sources emits or would emit any air pollutant in 

violation of the prohibition of Section IIO(a)(2)(D)(ii) or this section." 

CAA Section 126(b) requires that within 60 days after receipt of any petition and after 

public hearing, the Administrator shall make such a finding or deny the petition. We look 

forward to working with you and your staff during this period in which you make your finding 

regarding this petition and take the required actions to protect the health and welfare of 
134 


30463.102

Gina McCarthy 

Page Two 

Delaware's citizens. Please do not hesitate to contact me if you have any questions or need 

additional information regarding this petition. 

CC: Jack Markell, Governor, 

State of Delaware 

Ali Mirzakhalili, Director 

Secretary 

Department of Natural Resources and Environmental Control 

Administrator Shawn M. Garvin 

US EPA Region Ill Office 

Joyce E. Epps, Air Director 

Pennsylvania Department of Environmental Protection 
135 


30463.103

Attachment I 

Delaware CAA 126 Petition 

The state of Delaware submits this petition for a finding under §126(b) of the Clean Air Act that 

the Brunner Island facility's electric generating units (EGUs), located near York, Pennsylvania, 

significantly contribute to Delaware's non-attainment of the 2008 8-hour ozone national ambient 

air quality standard (NAAQS) of 0.075 ppm and the latest 8-hour ozone NAAQS of 0.070 ppm 

adopted by the United States Environmental Protection Agency (EPA) on October 26, 2015. (I) 

Delaware has complied with the requirements of §II O(a)(2)(D)(i)(I) of the CAA by adopting instate control measures for the prevention of emissions that would significantly contribute to nonattainment, or interfere with maintenance, of the ozone National Ambient Air Quality Standard 

(NAAQS) in a downwind area. (2) However, Delaware's ability to achieve and maintain healthbased air quality standards for its own residents is severely impacted by sources outside of the 

state of Delaware. This is due to the fact that more than 94% of the ozone levels in Delaware are 

created by the transport of air pollutants from upwind areas. Attainment and maintenance of the 

2008 and 2015 8-hour ozone NAAQSs in Delaware is possible only through additional emission 

reductions in the upwind states that significantly contribute to non-attainment and maintenance 

in Delaware. 

Section 126(b) of the CAA provides that, "[a]ny State or political subdivision may petition the 

Administrator for a finding that any major source or group of stationary sources emits or would 

emit any air pollutant in violation of the prohibition of Section IIO(a)(2)(D)(i) or this section." 

In accordance with §126(b) of the Clean Air Act, the state of Delaware petitions the 

Administrator of the EPA establish a timely schedule for the above-referenced Brunner Island 

electric generating facility and the state of Pennsylvania to put those entities in compliance with 

§IIO(a)(2)(D)(i) of the Clean Air Act with respect to the 2008 8-hour 0,075 ppm ozone NAAQS 

and 2015 8-hour 0.070 ppm ozone NAAQS. (3) 

Background 

The EPA began to address air quality issues related to ambient ozone through establishment of a 

related National Ambient Air Quality Standard in 1971. In 1997 the EPA first established the 8-

hour ozone NAAQS to protect human health and welfare at a level of 0.08 ppm. The EPA 

subsequently lowered the 8-hour ozone NAAQS to 0.075 ppm in 2008. After further evaluation, 

the EPA further lowered the 8-hour ozone standard to 0.070 ppm on October 26,2015. (I) 
136 


30463.104

The establishment of the short term ozone standard (8-hour NAAQS) was necessary to address 

the potential health impact of short term exposure to high levels of ozone. Short term exposure to 

ozone can cause rapid, shallow breathing and related airway irritation, coughing, wheezing, 

shortness of breath, and exacerbation of asthma, particularly in sensitive individuals and 

asthmatic children. Short term exposure also suppresses the immune system, decreasing the 

effectiveness of bodily defenses against bacterial infections. Research studies indicate that 

markers of cell damage increase with ozone exposure. Some studies suggest that there is a link 

between ozone exposure and premature death of adults and infant death. Other studies indicate a 

link between ozone and premature birth and adverse birth outcome, cardiovascular defects, and 

adverse changes in lung structure development in children. Children, the elderly, those with 

chronic lung disease, and asthmatics are especially susceptible to the pulmonary effects of ozone 

exposure. Additionally, studies have shown that ozone can adversely affects trees and vegetation, 

can cause reduced crop yields, and can contribute to nitrification of bodies of water. 

Atmospheric ground level ozone that is harmful to hwnan health and welfare is formed primarily 

by the chemical reaction of nitrogen oxides (NOx) with volatile organic compounds (VOC's) in 

the presence of heat and sunlight. Dry, hot, sunny days are most conducive to the formation of 

ozone. Because ground level ozone concentrations are highest when sunlight is the most intense, 

in the eastern United States the warm summer months (May I through September 30) are 

referred to as the ozone season. Weather also affects ozone concentrations and how quickly it is 

transported and dispersed. Periods of light winds allow ozone and ozone precursor pollutants o 

build up in any particular area leading to greater concentrations. However, the wind can also be 

responsible for transporting the ozone and ozone precursors over long distances downwind. This 

downwind pollutant transport can then combine with more local emissions to contribute to 

exceeding the ozone NAAQS in any particular location. 

Delaware has experienced a number of exceedances of the health based 8-hr ozone NAAQS. 

(4) The following table identifies the number of 8-hour ozone NAAQS exceedances experienced 

in Delaware during the ozone seasons for the years 2000 through 2015: 
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30463.105

Table 1 

Actual Delaware Ozone Exceedances- 8-Hour NAAQS 

New Cast! e County - Kent County - Sussex County - Total No. of 

No. of Days of No. of Days of No. of Days of Days of 

Exceedance Exceedance Exceedance Exceedance 

2015 Ozone season• 0 2 

2014 Ozone Season* 

2013 Ozone Season• 

2012 Ozone Season• 13 14 12 19 

2011 ozone Season• 11 3 6 15 

2010 ozone Season• 14 18 

2009 Ozone Season* 

2008 Ozone Season• 14 

2007 ozone Season•• 5 

2006 ozone Season•• 4 6 

2005 ozone Season•• 8 2 16 

2004 ozone Season•• 3 5 

2003 Ozone Season•• 7 

2002 Ozone Season•• 19 10 16 26 

2001 Ozone Season•• 19 10 21 

2000 Ozone Season•• 7 11 

•= O.o75 ppm Standard ••= 0.08 ppm Standard 

On October I, 2015, the EPA strengthened the 8-hour ozone NAAQS to 70 ppb based upon 

scientific evidence of ground level ozone's negative effect on public health and welfare. 

Relative to the 2008 8-hour ozone standard, the updated 8-hour ozone NAAQS is expected to 

further improve public health protection, particularly for at-risk groups, and also improve the 

health of trees, plants, and ecosystem. If the 2015 8-hour ozone standard of70 ppb had been in 

effect for the past several years, based upon monitoring data, it is estimated that Delaware would 

have experienced a higher number of 8-hour ozone exceedances compared to the actual 

exceedances of the 2008 8-hour ozone standard of 75 ppb. The following table provides a 

comparison of the actual 8-hour ozone NAAQS exceedances and the estimated exceedance that 

would have occurred if the 70 ppb standard had been in effect: 

3 
138 


30463.106

Ozone 

season 

2010 

2011 

2012 

2013 

2014 

2015 

Table 2 

Comparison of Actual vs Estimated Days of Ozone Exceedance 

2008 8-hour Ozone NAAQS vs 2015 8-hour Ozone NAAQS 

Estimated Number of Estimated Number of 

Actual Number of Actual Number of Days of ozone Monitor-Days of Ozone 

Days of 75 ppb Monitor-Days of 75 ppb standard Ew:ceedance Standard Exceedance 

ozone Standard ozone Standard Assuming 70 ppb Assuming 70 ppb 

Exceedance Exceedance Standard Standard 

19 29 36 91 

15 20 25 73 

19 39 28 107 

6 7 

9 17 

10 16 

It can be seen in the above table that if the more stringent 2015 8-hour ozone NAAQS of70 ppb 

were in effect during the 2010 through 2015 ozone seasons that Delaware would have exceeded 

that standard at a much higher rate than it experienced under the 2008 8-hour ozone NAAQS of 

75 ppb. As shown in the above table, for the 2010 through 2015 ozone season, the number of 8-

hour ozone NAAQS exceedance day would increase from 59 days under the 2008 NAAQS to 

113 days under the 2015 NAAQS. 

As discussed earlier, NOx is a precursor pollutant to the formation of atmospheric ozone. NOx 

is a generic term for a group of reactive gasses that are composed of nitrogen and various 

amounts of oxygen (including nitrogen oxide and nitrogen dioxide). NOx is formed in the 

combustion process as a result of high temperature chemical reactions of the nitrogen contained 

in the fuel and the nitrogen contained in the ambient combustion air along with oxygen in the 

combustion air. Fossil fuel-fired electric generating units are some of the largest emitters of 

NOx, with EGUs powered by coal-fired steam generators without NOx emissions controls 

exhibiting some of the highest NOx emission rates (in terms oflb/MMBTU). 

Uncontrolled, higher nitrogen content fuels, such as coal and residual fuel oil, tend to result in 

higher NOx emissions than lower nitrogen content fuels (such as natural gas). Various 

combustion configurations tend to result in varying NOx emission rates (in terms of pounds of 

NOx emitted per million BTU of fuel heat input (lb/MMBTU)) due to amounts of excess air 

required for combustion, rate of fuel combustion, combustor geometry, peak combustion 

temperatures, and duration of combustion gasses at peak temperatures, etc. Combustion 

controls, such as low NOx burners and overfire air, are commercially available NOx reduction 

technologies adaptable and applicable to most EGU combustion systems. Post combustion NOx 

controls, such as selective non-catalytic reduction (SNCR) and selective catalytic reduction 

(SCR), are commercially available highly effective NOx reduction technologies that are 

applicable to most EGU exhaust gas streams. These NOx controls are generally available for 
139 


30463.107

both new EGU installations and for retrofit on existing EGUs. Utilization of rombustion 

rontrols and post combustion rontrols, singly or layered together for a single EGU, can result in 

significant reductions in the EGUs NOx emissions rate, greater than 90% reduction from 

unrontrolled levels for some EGUs. 

To address the NOx emissions from EGU sources located in the state of Delaware, Delaware has 

promulgated a number of rules and regulations that effectively control the NOx emissions from 

these EGUs which also fulfils Delaware's obligation under § 11 O(a)(2)(D)(i)(I) of the Clean Air 

Act. These rules and regulations have been previously submitted to the EPA in Delaware's June 

2007 and subsequent state implementation plan (SIP) revisions, including the June 2012 revision. 

(5) The referenced rules and regulations include the following: 

7 DE Admin Code 1112, Control of Nitrogen Oxide Emissions, which set RACT-based NOx 

emission rate standards for major stationary sources, including EGUs. (6) 

7 DE Admin Code 1146, Electric Generating Unit (EGU) Multi-Pollutant Regulation, which 

included short term NOx emission rate limits (lb/MMBTU on rolling 24-hour average) and 

annual NOx mass emissions caps for coal-fired and residual oil-fired EGUs. (7) 

7 DE Admin Code 1148. Control of Stationary Combustion Turbine Electric Generating 

Unit Emissions, which set NOx emission rate limits or approved NOx control technology 

reqnirements (such as water injection) for rombustion turbines with a nameplate rating of 1 

MW or greater that had not previously controlled their NOx emissions rate in acrordance 

with the NOx RACT requirements of 7 DE Admin Code 1112. (8) 

In addition to the NOx control regulations noted above, Delaware has participated in regional 

and federal initiatives, where applicable, that were designed to limit the NOx emissions from 

EGU sources whose NOx emissions may impact compliance with ozone standards in downwind 

states. These regional and federal initiatives include the following: 

The Ozone Transport Commission (OTC) NOx Budget Program. (9) In 1990, the OTC was 

created by amendments to the Clean Air Act. The OTC ronsisted of northeast and midAtlantic states with persistent summertime ozone problems. These OTC states include 

Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New 

Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and portions of 

Virginia. The OTC was tasked with advising the EPA on ozone transport issues and for 

helping to develop and implement regional solutions to ozone problem experienced by the 

member states. Recognizing that the interstate transport of pollutants to downwind states 

contributed to summertime ozone problems in those downwind states, the OTC created and 

implemented its NOx Budget Program. The NOx Budget Program was a cap-and-trade 

program to limit the total regional emission of NOx from fossil-fueled electric generating 

units and large boilers located in OTC states, and became effective in 1999. Cap and trade 

5 
140 


30463.108

programs effectively reduce the total amount of emissions, usually for a geographic area, by 

placing a cap on the total emissions occurring in that geographic area without setting unit by 

unit limits. For the OTC NOx Budget Program, affected states were allocated a NOx 

emissions cap for the subject NOx emitting sources in the respective state, and the subject 

units were required to hold and surrender a NOx allowance for each ton ofNOx emitted in 

order to comply with program requirements. This program did not include any unit specific 

NOx emissions rate requirements. The OTC NOx Budget Program effectively ended when 

the EPA began administering the EPA's NOx Budget Trading Program. 

The EPA NOx State Implementation Plan (SIP) Rule. (10) In 2003 the EPA implemented its 

NOx State Implementation Plan (SIP) Rule utilizing the NOx Budget Trading Program, a 

NOx emissions cap and trade program similar to that used for the OTC NOx Budget 

Program. Relative to the OTC NOx Budget Program, the EPA's NOx Budget Trading 

Program was expanded to include additional states (for a total of 20 states and also the 

District of Columbia) and established more stringent NOx emissions allowance 

allocations. The EPA's NOx State Implementation Plan (SIP) Rule was intended to reduce 

the regional transport of ozone and ozone-forming pollutants in the Eastern United 

States. The NOx State Implementation Plan (SIP) Rule was in place until 2009, when it was 

replaced by the EPA's Clean Air Interstate Rule (CAIR). 

The EPA Clean Air Interstate Rule (CAIR). (11) In 2005, the EPA promulgated its CAIR 

program that required states to reduce the emissions of 802 and NOx to help meet health 

based air quality standards for fine particulate matter and ozone. The EPA indicated in the 

proposal for the CAIR that NOx and S02 emissions in 23 states and the District of Columbia 

contributed to unhealthy levels of fine particulate matter in downwind states, and that the 

NOx emissions from 25 states and the District of Columbia contributed to unhealthy levels 

of 8-hour ozone in downwind states. EPA indicated that the reduction of S02 and NOx 

emissions from EGUs would serve to reduce the interstate transport of pollutants related to 

these emissions. CAIR established a cap-and-trade program covering EGUs to limit the 

emissions of S02 and NOx from these sources as an option for compliance with the 

reduction requirements. (All states subject to the CAIR selected this compliance 

option.) S02 and NOx emissions mass caps were established for individual states and 

allowances were issued by the EPA to cover those allowable emissions from subject 

sources. The cap-and-trade program was intended by the EPA to provide subject sources 

flexibility in meeting the mass emissions limitations through the installation of controls, fuel 

switching, or trading/purchase of excess allowances from other subject sources. The NOx 

emissions limitations of CAIR became effective in 2009, and the S02 emissions limitation 

of CAIR became effective in 2010. The EPA made a number of changes to the CAIR 

subsequent to its original proposal, the most notable was the establishment of a process to 

provide for EPA to establish CAIR Federal Implementation Plans (FIPS) for states that 

6 
141 


30463.109

failed to timely establish state plans for the implementation of CAIR. This ensured that the 

controls of the cap-and-trade program were uniformly established in all subject states on a 

timely basis. 

The EPA Cross-State Air Pollution Rule (CSAPR). (12) Subsequent to the promulgation of 

CAIR, legal actions lead the US Court of Appeals for the DC Circuit to make the decision in 

2008 to remand the CAIR back to the EPA to make the rule more consistent with the 

requirements of the Clean Air Act. However, the courts left the requirements of CAJR in 

place until the EPA finalized a replacement rule. In response, the EPA promulgated its 

Cross-State Air Pollution Rule (CSAPR) in 2011. Additionally, in conjunction with the rule 

the EPA established federal implementation plans (FJPS) for each state subject to the 

CSAPR in order to implement the rule as rapidly as possible. In the rulemaking process the 

EPA identified for subject states what portions of each state's emissions significantly 

contributed to ozone or PM2.5 pollution in downwind states. The CSAPR established mass 

emissions limitations of S02 and NOx from power plants in subject states to eliminate the 

portion of those emissions that are significant contributions to non-attainment or 

maintenance of fine particulate matter and ozone air quality standards in downwind 

states. The CSAPR established annual mass emissions limitations for S02 and NOx and 

additional ozone season NOx mass emissions limitations for NOx. Between the original 

CSAPR and subsequent actions, there were 26 states subject to the ozone season NOx mass 

emissions limitations to address the 1997 Ozone NAAQS, 18 states were subject to annual 

S02 and NOx mass emissions limitations of the rule to address the 1997 Annual PM2.5 

NAAQS, and 21 states were subject to annual S02 and NOx mass emissions limitations to 

address the 2006 24-hr PM2.5 NAAQS (a combined total of23 states for addressing the two 

PM2.5 NAAQS). Relative to previous mass-based emissions rules, the CSAPR significantly 

restricted the trading of allowances that could be utilized for compliance pu!pOses by 

establishing state variability limits that ensure that a state's actual mass emissions would 

fulfill its Clean Air Act "good neighbor" obligations. The EPA determined that Delaware 

was not required to participate in CSAPR. 

In 2012 the CSAPR was challenged in court, and the US Court of Appeals for the DC 

Circuit vacated the CSAPR and the implementing FIPs. The Court remanded the rule to the 

EPA to address the Courts findings, and directed the EPA to continue administering CAJR 

pending the promulgation of a valid rule to replace CAIR. As of this ruling, CAIR cap-andtrade programs for annual S02, annual NOx, and ozone season NOx remained in place. (12) 

In April of 2014 the US Supreme Court reversed the DC Circuit court's opinion vacating 

CSAPR. In June of 2014 the EPA filed a motion with the U.S. Court of Appeals for the DC 

Circuit to lift the stay of the CSAPR, and in October of 2014 the Court of Appeals for the 

DC Circuit granted the EPA's motion. In November of 20 14 the EPA issued a ministerial 
142 


30463.110

rule that aligned the dates in the CSAPR rule text with the revised court-ordered schedule, 

including 2015 Phase I CSAPR implementation and 2017 Phase 2 CSAPR implementation. 

(12) 

In November of 2015 the EPA proposed an update to the CSAPR by issuing the proposed 

CSAPR Update Rule. (13) Starting in 2017, this proposal would reduce swnmertime 

nitrogen oxides (NOx) emissions from power plants in 23 eastern states, by establishing 

NOx mass emission caps, in order to reduce the impact of those power plant emissions on 

downwind states. In its proposal, the EPA has requested comments regarding the potential 

application of short term NOx emission limits on these same power plants. The EPA 

determined that Delaware was not required to participate in the CSAPR Update. 

These state and regional NOx reduction efforts have resulted in significant NOx emissions 

reductions from EGUs located in the state of Delaware. These reductions have occurred both in 

terms of ozone season NOx mass emissions (tons) and also in average ozone season NOx 

emissions rates (lb/MMBTU). The following table was assembled with data extracted from the 

United States Environmental Protection Agency's Air Markets Program Data (EPA's 

AMPD). (14) The table shows the ozone season NOx mass emissions (tons) and average NOx 

emissions rate (lb/MMBTU) for the EGU fleet located in the state of Delaware: 

8 
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Table3 

2000- 2015 Ozone Seasons 

State of Delaware 

Total EGU NOx Mass Emissions and Average NOx Emission Rate 

Change In AverageNOK Change In 

Total EGU NOxMass Emissions AverageNOx 

OSNox Emissions Rate Emission 

Year Mass (tons) from 2000 (%) (lb/MMI!TU) Rate(%) 

2000 4137 o.o 0.2784 o.o 2001 4777 15.5 0.2806 0.8 

2002 4609 11.4 0.2415 ·13.3 

2003 3850 ·6.9 0.2374 ·14.7 

2004 3659 ·11.6 0.2449 ·12.0 

2005 5175 25.1 0.2818 1.2 

2006 3567 ·13.8 0.2582 ·7.3 

2007 4179 1.0 0.2398 ·13.9 

2008 3190 ·22.9 0.2277 ·19.2 

2009 1290 ·69.1 0.1695 ·39.1 

2010 2265 ·45.3 0.1484 ·46.7 

2011 1879 ·54.6 0.1250 ·55.1 

2012 1054 ·74.5 0.0565 ·79.0 

2013 879 ·711.7 0.0589 ·76.9 

2014 668 ·63.9 0.0483 ·82.7 

2015 628 ·84.8 0.0494 ·82.3 

However, relatively long term NOx mass emission caps (such as annual or seasonal caps) have 

limited impact on the short term NOx emissions (such a 24-hour period) from EGUs that have a 

more direct impact on compliance with short term air quality standards, such as the 8-hour ozone 

NAAQS. To address this issue, Delaware's air quality regulations have included short term NOx 

emission rate limits (with 24-hour averaging periods) that are protective of the short term ozone 

NAAQS. These short term NOx emission rate limits have helped Delaware achieve significant 

reductions in ozone season peak daily NOx mass emissions from Delaware's EGUs. 

9 
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Graph 1 --------~~-~----··-··-~-- - ·-·-·----~--

Delaware Total EGU Oz one Season Peak Day NOx Mass 

Emissions i 90 _eo- r----

.f 70 

j 1 ~~ 

-

~ e 40 

m 90 E ~ 20-

J! 10 

0 

• • • • • • • • • 

' • • • • • • • 

I 2000 20012002 2009 2004 2005 20116 2007 2000 2009 2010 2011 2012 2019 2014 2015 

o.one-...Yeor 

------- --

It can be seen in the above Graph I that between the 2000 and 20 I 5 ozone seasons, the 

Delaware's EGUs have achieved a NOx mass emissions reduction (for ozone season peak NOs 

mass emissions days) in excess of 80% reduction. This reduction in peak ozone season day NOx 

mass emissions provides benefit in attruning compliance with the 8-hour ozone NAAQS for both 

Delaware's citizens and downwind populations. 

Even though Delaware has significantly reduced the NOx emissions from EGUs located in 

Delaware, as discussed above, Delaware continues to experience exceedances of the 8-hour 

ozone NAAQS. Pollutants transported from facilities in upwind states are significant 

contributors to Delaware's continuing issues in meeting the 8-hour ozone NAAQS. 

Modeling Identifies Impact of Upwind NOx Emissions Impacting Delaware's 8-hour 

Ozone NAAQS Compliance 

The US EPA performed modeling as part of the development of its Cross-State Air Pollution 

Rule in order to help determine the impact of transported pollutants on downwind states and 

those states' ability to attain and maintain the then current 2008 ozone NAAQS of75ppb. Some 

results of the modeling that identifY state contributions to ozone at individual monitoring 

locations can be found on the spreadsheet titled "Contributions of 8-hour ozone, annual PM2.5, 

and 24-hour PM2.5 from each state to each monitoring site" located in the "Technical 

Information and Support Documents" section of the US BPS's Cross-State Air Pollution Rule 

(CSAPR) website. (15) 

10 
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The US EPA's modeling identified 13 individual states (in addition to Delaware itself) whose 

NOx emissions significantly impact the ability of Delaware to attain and maintain the then 

current 8-hr ozone standard of 75 ppb. (I 6) (A state significantly impacts another state if it 

impacts that state's air quality by I% or more of the applicable air quality standard. For the then 

current 8-hr ozone standard of 75 ppb, a significant contribution was 0. 75 ppb or greater.) The 

states identified by the US EPA as significantly impacting Delaware's air quality, and the 

modeling results quantifying each state's impact, are shown in the following table: 

Table4 

States Significantly Impacting Compliance with the 8-hour 

Ozone Standard in Delaware and the Magnitude of that Impact 

Maid mum 

Contribution 

State (ppb) 

cr l.OOB 

DE 6.256 

ll 1.445 

IN 1.737 

KY 9.208 

MD ags1 

Ml 2.207 

NJ 13.034 

NV g,og2 

OH 3,g97 

PA 13.344 

TN 1.932 

VA 6.039 

wv 3.142 

The EPA's modeling results, summarized in the above table, indicate that four states (Maryland, 

New Jersey, New York, and Pennsylvania) have greater impact on compliance of the 8-hour 

ozone standard in Delaware than the impact of Delaware itself. These modeling results tend to 

confirm that pollutant transport is a significant issue for the state of Delaware, and they also help 

explain Delaware's ongoing difficulties with the 8-hour ozone standard despite the significant 

actions Delaware has implemented to reduce NOx and VOC emissions in Delaware. 

Pennsylvania's Brunner Island EGU Facility's Impact on Delaware's 8-hour Ozone 

NAAQS Compliance 

As noted in Table 4 above, the EPA's modeling indicated that the state of Permsylvania 

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significantly impacts Delaware's compliance with the 8-hour ozone NAAQS. Because of the 

magnitude of Pennsylvania's impact on Delaware's compliance with the 8-hour ozone standard, 

and the potential contribution to this impact by EGUs located in Pennsylvania, further modeling 

was performed to determine if individual Pennsylvania EGU facilities individually have a 

significant impact on Delaware's compliance with the 8-hour ozone standard. 

In order to help Delaware assess the impact of upwind EGU facility NOx emtsswns on 

Delaware's 8-hour average ozone exceedances in 2011, Sonoma Technologies Inc. (STI) 

conducted air quality modeling using the Comprehensive Air Quality Model with extensions 

(CAMx) Ozone Source Apportionment Technology (OSA T) (17). The 20 II ozone season 

modeling was performed to determine 8-hour average ozone apportionments from individual 

upwind EGU facilities and upwind groups of EGU facilities. The modeling identified that a 

number of EGU facilities located in the state of Pennsylvania individually had significantly 

impacted Delaware's compliance with the 8-hour ozone NAAQS. The identified EGU facilities 

significantly impacting Delaware's ambient air quality included Pennsylvania's Brunner Island 

facility. 

Because of the magnitude of its impact on Delaware's ambient ozone, the Brunner Island EGU 

facility is being individually addressed in this petition for a fmding under § l26(b) of the Clean 

Air Act. 

The STI modeling results indicated that the Brunner Island power plant, located in York, 

Pennsylvania, emitted NOx during the 20 II ozone season at levels to individually have a 

significant impact on Delaware's air quality as measured by Delaware's ambient ozone 

monitors. The following table shows the days of the 2011 ozone season that the STI modeling 

estimated that the Brunner Island facility's NOx emissions impacted Delaware's ambient ozone 

at significant levels: 

12 
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TableS 

Brunner Island NOx Emissions 

STI Modeling Estimated Impact on Delaware Air Monitors 

2011 Ozone Season 

Month Day Year a-hour Ave 03 (ppb) 

5 a 2011 0.93 

5 30 2011 2.17 

6 2 2011 0.75 

6 4 2011 1.53 

6 a 2011 4.a3 

6 9 2011 4.37 

6 12 2011 1.5 

6 1a 2011 2.73 

6 23 2011 1.01 

6 25 2011 2.22 

6 26 2011 2.41 

6 29 2011 2.07 

6 30 2011 1.17 

7 2 2011 1.59 

7 4 2011 1.26 

7 5 2011 0.7 

7 6 2011 o.a5 

7 7 2011 1.56 

7 10 2011 o.n 

7 12 2011 2.aa 

7 13 2011 1.1 

7 15 2011 2.11 

7 1a 2011 1.03 

7 22 2011 3.81 

7 23 2011 3.58 

7 24 2011 1.71 

7 26 2011 0.72 

7 27 2011 1.14 

7 2a 2011 0.93 

7 29 2011 1.78 

7 30 2011 1.53 

7 31 2011 0.79 

a 1 2011 3.47 

a 2 2011 1.65 

a 7 2011 o.aa 

a a 2011 1.61 

a 10 2011 2.55 

a 20 2011 4.39 

a 22 2011 0.81 

a 31 2011 1.51 

9 12 2011 1.53 

9 13 2011 1.41 

9 24 2011 1.43 

13 
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As shown in the above Table 5, the STI modeling estimated that during the 2011 ozone season 

the Brunner Island facility's NOx emissions had a significant impact on Delaware's ambient 

ozone on 43 separate days relative to the 2015 8-hour ozone NAAQS of 0.070 ppm, and 41 days 

of significant impact relative to the 2008 8-hour ozone NAAQS of 0.075 ppm. As shown in the 

table, the highest estimated impact occurred June 8, 2011 with a modeled impact value of 4.83 

ppb. The data in the above table also indicates that Brunner Island facility NOx emissions 

contributed at significant levels to Delaware's 2011 ozone NAAQS exceedances on 9 of the 15 

days of exceedance. 

Brunner Island Electric Generating Station 

The Brunner Island electric generation facility is located in York county Pennsylvania. The 

Energy Information Administration (EIA) database indicates that the Brunner Island facility 

includes three coal fired steam electric generating. (18) The following table provides some 

technical information regarding the Brunner Island coal-fired electric generating units: 

Table6 

Brunner Island Electric Generating Units 

EIA EIA EIA AMPDMaK 

Nameplate summer [lA eommerdal Heat Input 

Ratlns: Capadty Primary Operation Capacity 

UnltiO Generator Prime Mover (MW) (MW) Fuel Year (MMSTU/hr) AMPO Reported NOx COntrols 

Steam Turbine 363 3Q£ Coal 1961 9220 LNB w/CCOF-A & SOFA 

Steam Turbine 405 363 Coal 1965 9655 LNil w/OCIJFA & SOfA 

Steam Turbine 848 742 Coal 1969 7430 LNil w/CCOFA & SOFA 

14 
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30463.117

The Brunner Island facility is currently owned and operated by Talen Energy. The facility is 

located within the P JM RTO and the facility and its electric generating units operate as 

independent power producers. These units would be expected to typically operate as dispatched 

by PJM for reliability and economic purposes to support the electric grid. EIA data indicates that 

the three Brunner Island coal-fired EGUs currently fire bituminous coal from Appalachian states 

as their primary fuel. Talen Energy has publicly announced that that permitting and planning to 

install natural gas firing capability for all three steam EGUs has been initiated, with spring 2017 

being the time of expected gas firing capability. Tal en Energy has also indicated that coal-firing 

capability will be retained for the three Brunner Island steam EGUs. Lacking additional 

permitting or regulatory requirements, it would be anticipated that the Brunner Island steam 

EGUs would fire coal whenever it would be economically beneficial to do so. 

Brunner Island NOx Emissions Limitations and Performance 

As noted in Table 6 above, the Brunner Island Units I, 2, and 3 are currently equipped with low 

NOx burners (LNBs) and combustion air controls which were installed in the mid-1990s to 

satisfy the requirements of Pennsylvania's NOx RACT regulation. Pennsylvania has recently 

finalized a revision to its NOx RACT regulation, Title 25. Environmental Protection/ Part I. 

Department of Environmental Protection/ Subpart C. Protection of Natural Resources, Article 

Ill Air Resources/ Chapter I 29. Standards for Sources, Additional RACT Requirements for 

Major Sources ofNOx and VOCs. (19) 

The revision to Pennsylvania's NOx RACT regulation also revises the NOx RACT provisions 

that are applicable to the Brunner Island Units I, 2, and 3. The steam generators associated with 

Brunner Island Units 1, 2, and 3 are all coal-fueled tangentially fired combustion units with heat 

input ratings of greater than 250 MMBTU/hr. In accordance with the requirements of the revised 

Pennsylvania NOx RACT regulation, each of the three Brunner Island steam generatiog units are 

subject to a NOx RACT emissions rate limit of 0.35 lb!MMBTU based on a 30-day averaging 

period. Additionally, the revised Pennsylvania NOx RACT regulation permits the averaging of 

NOx emission rates among units at a single facility or multiple facilities under the control of a 

common owner for NOx RACT compliance purposes. 

The revised Pennsylvania NOx RACT regulation's NOx emissions rate limit of0.35lb/MMBTU 

is representative of a presumptive NOx emission rate limit for a coal-fueled tangentially fired 

steam generator equipped with the equivalent of low-NOx burner technology. As the Brunner 

Island Units 1, 2, and 3 already incorporate this low-NOx burner technology, they are already 

operating at or near this presumptive limit of 0.35 lb/MMBTU. However, the use of a 30-day 

averaging period may facilitate the operation of one or more of the Brunner Island units at a 

daily average NOx emission rate in excess of 0.35 lb/MMBTU while still being able to attain the 

0.35 lb!MMBTU average on a 30-day averaging period basis. Together the 30-day averaging 

15 
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period and emissions averaging provisions of the applicable Pennsylvania NOx RACT do not 

ensure that the NOx emissions from the facility do not exceed an avemge rate of 0.35 

lb/MMBTU over any given short time period, such as a 24 hour period. Because of these 

provisions in the revised Pennsylvania NOx RACT regulation, it does not appear likely that these 

revised regulatory provisions will result in any significant reduction in Brunner Island facility 

NOx emissions beyond historic and current levels. Therefore, the Pennsylvania NOx RACT 

provisions applicable to Brunner Island do not serve to limit this facility's ability to negatively 

impact downwind areas' compliance with the 8-hour ozone NAAQS. 

Brunner Island Units I, 2, and 3 have also all been subject to various NOx emissions cap and 

trade programs. Beginning with the 2001 ozone season through the 2002 ozone season, Brunner 

Island Units I, 2, and 3 participated in the Ozone Transport Commission's NOx Budget Tmding 

Program. Beginning with the 2003 ozone season through the 2008 ozone season, Brunner Island 

Units I, 2, and 3 participated in the EPA's NOx Budget Program. Beginning with the 2009 

ozone season through the 2014 ozone season, Brunner Island Units I, 2, and 3 participated in the 

EPA's Clear Air Interstate Rule ozone season trading program. And beginning with the 2015 

ozone season, Brunner Island Units I, 2, and 3 participated in the Transport Rule ozone season 

NOx trading program. While these various trading programs effectively put a seasonal NOx 

emissions mass cap on the fleet of subject units, it did not require the subject units to limit their 

NOx emissions over any particular portion of the ozone season as long as the EGU was able to 

obtain sufficient NOx allowances to balance that unit's actual ozone season NOx mass 

emissions. The following graph shows the ozone season average NOx emission rate values for 

Brunner Island Units I, 2, and 3 for the ozone season of 2002 through 20 IS. 

16 
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30463.119

0.45 

0.4 

0.35 

0.3 

~ ~ 0.25 

~ 2 0.2 

R ~ o.15 

c g 0.1 

!5 i 0.05 ! 0 

J 

Brunner Island Steam Elactrlc Ganel'lltlng Unit's Avanoga Orona 

SeasanNOxEmlulans Rate 

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 

Ozone Season Year 

Ill Unltl 

Unl\2 

UnitS 

It can be seen in Graph 2 that, overall, there has been little change in the ozone season average 

NOx emissions rate for each of the three EGUs. While these EGUs have complied with the 

applicable requirements of the various NOx mass cap and trade programs, it appears that each of 

the three EGUs have been able to attain compliance without having to make any significant 

reductions in the respective EGU's ozone season average NOx emission rate. 

Each of the three Brunner Island steam EGUs has also demonstrated a relatively consistent peak 

daily ozone season NOx mass emissions for the year 2000 through 2015 ozone seasons. The 

following graph shows each of the three units' ozone season peak daily NOx mass emissions for 

the year 2000 through 2015 ozone seasons: 

17 
152 


30463.120

Brunner Island Steam Generatll"tt Unit Ozone Season Hlahest NOIC Mass 

Emissions Day 

4o 1 --·--"· 

35 +-·· 

30 +--

1998 2000 2002 

-.-UnttS 

2010 20U 2014 2016 

Even with the regulatory and economic changes that have been occurring in the electric 

generation industry and the resulting impact on individual facilities and units, during some 

period in an ozone season it can be expected that an individual EGU or group of individual 

EGUs will operate at high capacity levels. The above graph is an indication that those discrete 

high capacity periods, however short, at the Brunner Island facility can be expected to produce 

high levels of daily NOx mass emissions at levels that can significantly impact Delaware's 

compliance with the 8-hour ozone NAAQS unless additional NOx emission controls or other 

appropriate regulatory restrictions are implemented. 

Peak NOx Mass Emissions Are Not Always Required to Significantly Impact Downwind 

NAAQS 

While many evaluations for assessing downwind impact of upwind emissions are conducted for 

periods when the upwind emissions are at or near their peak, under some naturally occurring 

ambient conditions upwind NOx emissions much lower than peak levels can significantly impact 

downwind compliance with the 8-hour ozone NAAQS. This is a situation that can occur 

between the upwind Brunner Island EGU facility's NOx emissions and the monitored ozone 

levels in Delaware. The 2011 ozone season modeling performed by STI indicates that for the 

Brunner Island facility, it is not necessary for the facility to be operating near its maximum daily 

NOx mass emissions levels to significantly impact Delaware's compliance with the 8-hour ozone 

NAAQS. 

The following graph is for the 2011 ozone sea8on, and shows the Brunner Island EGU facility's 

daily NOx mass emissions versus the peak impact predicted by the STI modeling of those NOx 

mass emissions on ambient ozone at Delaware monitoring locations. The data for the Brunner 

18 
153 


30463.121

Island facility's NOx mass emissions was taken from the EPA's AMPD, and the modeling 

predicted ozone monitor impact was model's highest predicted impact of all of the Delaware 

monitor locations. 

.1 6.oo 

I s.oo 

i 

~ _s.oo 

~ l..oo 

1 1.oo 

1 o.oo -* 

f 

4 

Brunnor lslond Foolllty :Z011 01ono Sou on NOx Mon Emlnlano 

lmpoct an DE Ooono Monitors 

20 30 '0 so 60 70 

Dolly Noa Mm BnlssloM !klns) 

• !mpect < D.7 ppb 

•Impact Joe n.7 ppb 

It can be seen in the above graph that the STI modeling predicted that the impact of NOx mass 

emissions from the Brunner Island facility on Delaware's monitoring locations varies greatly 

from day to day. The above graph also indicates that the 20 II ozone season modeling estimated 

that Brunner Island daily NOx mass emissions ranging from approximately 27.4 tons/day to 

approximately 59.7 tons/day had an impact of 0. 7 ppb or greater at Delaware's ozone monitoring 

locations. At other times, the modeling indicated that the same range of the Brunner Island 

facility's NOx mass emissions had an impact of less than 0.7 ppb at Delaware's ozone 

monitoring locations. This is an indication that other variables/factors, such as ambient 

conditions and wind currents, may have a significant effect on the impact that Brunner Island 

facility NOx emissions have on Delaware's monitored ambient ozone. 

The STJ modeling indicated that on September 13, 2011, the Brunner Island EGU facility had a 

peak ozone impact of 1.41 ppb on Delaware ambient ozone monitors. On that day, Brunner 

Island coal-steam units 1&2 were on line the entire day and operated at elevated outputs most of 

the day, while the facility's coal-steam unit 3 was on line for less than half of the day and never 

reached 30% of its rated output during any of those hours. As documented in the EPA's AMPD, 

this resulted in a facility total daHy NOx mass emission of approximately 27.4 tons 

(approximately 46% of the highest 2011 ozone season daily total NOx mass emissions from the 

facility). This information clearly shows that the Brunner Island facility has the capability of 

significantly impacting Delaware's compliance with the 8-hour ozone NAAQS even when the 

Brunner Island facility's NOx mass emissions are less than one half of the facility's current 

19 
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30463.122

potential to emit NOxon a short term (daily) basis. 

It is of concern that the STI modeling information and AMPD emissions data indicate that for the 

September 13, 2011 date, the Brunner Island emissions of about half of the facility's 

recorded peak daily NOx emissions value had an estimated impact on the Delaware ozone of 

approximately twice the value identified as having significant impact (1.41 ppb estimated impact 

compared to 0.70 ppb identified as significant impact). This is an indication that even lower 

amounts of Brunner Island facility NOx mass emissions (compared to the 27.4 tons/day value) 

may still have significant impact on Delaware's measured ozone levels under certain 

atmospheric conditions. 

It is a significant issue that the Brunner Island facility's NOx mass emissions alone can still have 

significant impact on Delaware's ambient ozone even when the EGUs at the Brunner Island 

facility are collectively operating at greatly reduced outputs, because this reduces the options 

available to ensure that the facility's NOx emissions do not significantly impact Delaware's 

compliance with the 8-hour ozone NAAQS. This is an indication that moderate reductions in 

Brunner Island NOx mass emissions rate (in terms of tons per hour), such as those that might 

occur as a result of application of more advanced combustion NOx controls or SNCR, do not 

appear to be sufficient to ensure that Brunner Island does not significantly impact Delaware's 

ambient ozone under all ambient conditions iu the future. It appears that installation of SCR or a 

fuel switch to natural gas with advanced combustion controls appropriate regulatory 

requirements might be necessary to mitigate the Brunner Island facility's ability to negatively 

impact Delaware's compliance with the 8-hour ozone NAAQS. 

Brunner Island's Modification to Incorporate Natural Gas Fuel 

It has been publicly announced that the Brunner Island facility's current owner, Talen Energy, is 

continuing the process initiated by it predecessor to add natural gas firing capability to the EGUs 

at Brunner Island. Public statements by Talen Energy indicate the estimated the completion of 

adding natoral gas firing capability is 2017. However, public statements by Talen Energy also 

indicated that the Brunner Island facility EGUs will retain coal-firing capacity on all of the 

EGUs, and will have the ability to operate on only natural gas fuel, only coal fuel, or a 

combiuation of both fuels based upon fuel economics. It is Delaware's understanding that there 

will be no permit restrictions regarding the selections of fuel to be combusted at any particular 

time other than annual mass caps. It is also Delaware's understanding that there will be a slight 

increase in the facility's annual VOC emissions associated with the operation of the natural gas 

firing capability. Because the Brunner Island EGUs will retain the capability to fire any amount 

of coal fuel at any time, the addition of natural gas fuel firing capability at the Brunner Island 

EGUs does not reduce the potential future NOx mass emissions on a short term basis that is 

critical to downwind 8-hour ozone NAAQS compliance. 

20 
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30463.123

Short Term NOx Emission Limits Are Required Assist in Reducing the Downwind Impact 

of Brunner Island NOx Emissions 

The infonnation discussed above indicates that current and past EGU cap-and-trade NOx control 

programs, applicable to the Brunner Island facility, that were designed to limit annual and 

seasonal NOx emissions, and current and past PA RACT, have not served to limit the Brunner 

Island fucility's NOx emissions to levels such that those emissions do not significantly contribute 

to exceedances of short tenn air quality standards, thereby imperiling the public health and 

welfare in downwind states. The modeling performed by STI tends to support this conclusion by 

quantifying the impact of Brunner Island NOx emissions on ozone levels measured at 

Delaware's monitoring locations. 

Delaware is concerned that the NOx mass emission limits associated with CSAPR and, when 

effective, the proposed CSAPR Update will also be ineffective in properly protecting the public 

health and welfare in downwind states at all times with regards to the 8-hour ozone NAAQS. It 

is recognized that the provisions of CSAPR and the proposed CSAPR Update provide for more 

restrictive annual and seasonal NOx mass emissions than previous rules, and that the CSAPR 

and proposed CSAPR update programs also provide significantly more restrictive allowance 

trading provisions than previous rules. However, the provisions of CSAPR and CSAPR Update 

do not provide any limitations on the Brunner Island facility's NOx mass emissions for any 

period shorter than seasonal (such as hourly or daily). The lack of short tenn NOx emission rates 

facilitates the continued operation of the Brunner Island EGUs with inadequate NOx emission 

controls and resulting high NOx emissions over short periods of time. The lack of short tenn 

emissions limitations will therefore help facilitate the Brunner Island facility's NOx mass 

emissions at levels that will continue to support non-compliance with the 8-hour ozone NAAQS 

in Delaware, and thereby continue to impact the health and welfare of Delaware's citizens. 

In order to be protective of short term air quality standards, such as the 8-hour ozone NAAQS, it 

is Delaware's opinion that it will be necessary to establish emissions limits with appropriate 

magnitudes and averaging periods at the Brunner Island facility that ensure that the emissions are 

adequately controlled during any particular time period. It is Delaware's opinion that selection 

of a short tenn NOx emission rate limit averaging period of no greater than 24 hours is 

appropriate to address the short term aspects of compliance with a short tenn NAAQS, such as 

the 8-hour ozone NAAQS. 

Requested EPA Action 

Even with extensive reduction of NOx emissions from EGU sources located in the state of 

Delaware, Delaware continues to experience exceedances of the 8-hour ozone 

21 
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30463.124

NAAQS. Modeling conducted by the EPA indicates that emissions from EGUs in upwind states 

are major contributors to Delaware's ongoing 8-hour ozone NAAQS compliance 

issues. Modeling performed for Delaware by Sonoma technologies Inc, (STI) indicates that the 

Brunner Island EGU facility, located in the upwind state of Pennsylvania, itself significantly 

impacts the level of ozone in Delaware's ambient air. The modeling has shown tbat not only can 

the Brunner Island facility significantly impact Delaware's 8-hour ozone NAAQS compliance 

when the facility is operating at high loads, but also that the Brunner Island facility significantly 

impact Delaware's 8-hour ozone NAAQS compliance when the facility is operating at 50% 

capacity or lower. The Brunner Island facility's impact on Delaware's 8-hour ozone NAAQS 

compliance has continued even though the Brunner Island facility has been in compliance with 

PA RACT and the applicable cap-and-trade NOx emissions control programs. These long term 

(annual, seasonal) cap-and-trade NOx control programs have not provided the level of short term 

NOx emission limits necessary to be supportive of the short term, 8-hour ozone 

NAAQS. Because the CSAPR, and proposed CSAPR Update, will continue to attempt to control 

NOx mass emissions on and annual and seasonal basis, these programs are also expected to 

permit an EGU facility such as Brunner Island to emit NOx at high levels over any given short 

term basis and remain in compliance overall with the annual and seasonal programs. 

In order to be protective of short term air quality standards, such as the 8-hour ozone NAAQS, it 

is Delaware's opinion that it will be necessary to establish NOx emissions limits with appropriate 

magnitudes and averaging periods that ensure that the NOx emissions are adequately controlled 

during any particular time period. Therefore, Delaware is hereby petitioning the EPA under 

section 126(b) of the Clean Air Act to find that the Brunner Island EGU facility, located in 

Pennsylvania, is air pollutants in violation of the prohibition of section II O(a)(2)(D)(i) of the 

Clean Air Act, and to require the Brunner Island EGU facility to limit short term NOx emissions 

to levels that are protective of the 8-hour ozone NAAQS in downwind areas such as Delaware. 

References 

1) 40 CFR Part 50, 51, 52, et a!. National Ambient Air Quality Standards for Ozone; Final 

Rule Federal Register, Vol. 80, No. 206, October 26, 

2015 https://www.gpo.gov/fdsyslpkg!FR-20 15-1 0-26/pdf/20 15-26594.pdf 

2) Approval and Promulgation of Air Quality Implementation Plans; Delaware; Section 

110(a)(2) Infrastructure Requirements for the 1997 8-Hour Ozone and the 1997 and 2006 

Fine Particulate Matter National Ambient Air Quality Standards, Federal Register No!. 

76, No. 150 /Thursday, August 4, 2011 /Rules and Regulations, page 47069, 

http://www.gpo.gov/fdsys/pklliFR-20 ll-08-04/pdf/2011-19694.pdf#page= I 

3) Clean Air Act, Title I - Air Pollution Prevention and Control, Part A- Air Quality and 

Emissions Limitations, Section 126, http://www.epa.gov/air/caaltitle l.html 

22 
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30463.125

4) Delaware Air Quality Monitoring Network, Reports, 

h!tp://apps.dnrec.delaware.gov/AirMonitorinf!/ 

5) Revision to State Implementation Plan for Ozone, June 12, 2012, 

http://www.dnrec.delaware.gov/dwhs/lnfo/Regs/Documents/DE 110a2 0075 proposed. 

p!!f 

6) 7 DE Admin. Code 1112, Control of Nitrogen Oxide Emissions, 

http://regulations.delaware.gov/ AdminCode/title 7 II 000/1100111 12.shtmi#TopO!Page 

7) 7 DE Admin. Code 1146, Electric Generating Unit (EGU) Multi-Pollutant Regulation, 

http://regulntions.delaware.gov/ Admin Code/title 7 I I 000111 00/1146.shtmi#TopOfPage 

8) 7 DE Admin. Code 1148, Control of Stationary Combustion Turbine Electric Generating 

Unit Emissions, 

http://regulatjons.delawarc.gov/AdminCode/title7/l 000111 00/1148.shtmi#TopOlPage 

9) Overview of the Ozone Transport Commission (OTC) NO, Budget Program, 

http://www.ena.gov/airmarkets/progsregs/nox/otc-overview.html 

I 0) NO, Budget Trading Program!NOx SIP Call, 2003-2008, 

http://www.epa.gov/airmarkets/progsregslnox/sip.htrnl 

11) Clean Air Interstate Rule (CAIR), http://www.epa.gov/cair/ 

12) Cross-State Air Pollution Rule (CSAPR), http:!lwww.epa.gov/crossstaterule/ 

13)40 CFR Parts 52, 78, and 97, Cross-State Air Pollution Rule Update for the 2008 Ozone 

NAAQS; Proposed Rules, Federal Register Vol. 80, No. 232, Thursday December 3, 

2015, https://www.gpo.gov/fdsys/pkg!FR-20 15-12-03/pdl/20 15-29796.pdf 

14) United States Environmental Protection Agency's Air Markets Program Data (EPA's 

AMPD)- EGU emissions data extracted from the EPA's AMPD using various search 

criteria as required. http://ampd.epa.govlampd/QueryToolie.html 

15) United States Environmental Protection Agency Cross-State Air Pollution Rule, 

Technical Information and Support Documents, Air Quality Modeling Final Rule TSD, 

Contributions of the 8-hour ozone and 24-hour PM2.5 from eaeh state to each monitoring 

site·, 

http://www.epa.gov/crossstatcrule/pdf.v'CSAPR Ozoneo/o20and%20PM2.5 Contribution 

s.xls 

16) Technical Support Document (TSD) for the Transport Rule, Docket ID No. EPA-HQOAR-2009-0491, Analysis to QuantifY Significant Contribution, 

http://www.epa.gov/crossstateru!e/pdfs/TSD analysis to quantify significant eontribuji 

on 7-8-IO.p!!f 

I7) Ozone Impacts from Brunner Island Power Plant in 2011, Sonoma Teclmology Inc., 

August 6, 2015, 

https:f/content.sierraclub.orglcoallshJ<s/content.sierraclub.org.coaUiilesldocs/Sonoma 8-

6-15 Brunner Memo !.pdf 

18)U.S. Energy Information Administration, http://www.eia.gov/electricity/data/detaildata.html 

!9)Pennsylvania Bu!letin/46 Pa. B. 2036/ Saturday April23, 2016/ Rules and Regulations/ 

Title 25 -Environmental Protection/ Environmental Quality Board/25 PA. Code CHS. 

121 and 129 http://www.pabullctin.com/secure/data/vol46/46-l7/694.html 

23 
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30463.126

STATE OF DELAWARE 

DEPARTMENT OF NATURAL RESOURCES 

AND ENVIRONMENTAL CoNTROL 

OFFICE OF THE 

SECRETARY 

Gina McCarthy, Administrator 

89 KINGS HIGHWAY 

DOVER, DELAWARE I 9901 

August 8, 2016 

United States Environmental Protection Agency 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Mail Code: II OIA 

Washington, DC 20460 

Dear Administrator McCarthy: 

PHON!!:! (302) 739~9000 

FAX: (302) 739·62.42. 

By this letter, the State of Delaware hereby petitions the Administrator of the 

Environmental Protection Agency (EPA) under §126(b) of the Clean Air Act (CAA) to find that 

the Harrison Power Station's electric generating units (EGUs), located near Haywood, Harrison 

County, West Virginia, are emitting air pollutants in violation of the provisions of Section 

11 O(a)(2XD)(i) of the CAA with respect to the 2008 0.075 ppm ozone NAAQS and the 2015 8-

hour 0.070 ppm ozone NAAQS. 

Section II 0( a)(2)(D){i) prohibits any source or other type of emissions activity within a 

State, "from emitting any air pollutant in amounts which will contribute significantly to 

nonattainment in, or interfere with maintenance by, any other State with respect to any such 

national primary or secondary ambient air quality standard." Section l26(b) of the CAA 

provides that, "fa]ny State or political subdivision may petition the Administrator for a finding 

that any major source or group of stationary sources emits or would emit any air pollutant in 

violation of the prohibition of Section IIO{a)(2)(D)(ii) or this section." 

CAA Section 126(b) requires that within 60 days after receipt of any petition and after 

public hearing, the Administrator shall make such a fmding or deny the petition. We look 

forward to working with you and your staff during this period in which you make your finding 

regarding this petition and take the required actions to protect the health and welfare of 
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30463.127

Ms. Gina McCarthy 

August 8, 2016 

Page Two 

Delaware's citizens. Please do not hesitate to contact me if you have any questions or need 

additional information regarding this petition. l 

!'=(l)}!_~t_ 

CC: Jack Markell, Governor, 

State of Delaware 

Ali Mirzakhalili, Director 

avid S.Small 

Secretary 

Department of Natural Resources and Environmental Control 

Administrator Shawn M. Garvin 

US EPA Region III Office 

William F. Durham, Director 

West Virginia Department of Environmental Protection 
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30463.128

Attachment 1 

Delaware CAA 126 Petition 

Harrison Power Station 

The State of Delaware submits this petition for a finding under §126(b) of the Clean Air Act that 

the Harrison Power Station's electric generating units (EGUs), located near Haywood, Harrison 

County, West Virginia, significantly contribute to Delaware's non-attainment of the 2008 8-hour 

ozone national ambient air quality standard (NAAQS) of 0.075 ppm and the latest 8-hour ozone 

NAAQS of 0.070 ppm adopted by the United States Environmental Protection Agency (EPA) on 

October 26, 2015. (I) 

Delaware has complied with the requirements of §IIO(a)(2)(D)(i)(I) of the CAA by adopting instate control measures for the prevention of emissions that would significantly contribute to nonattainment, or interfere with maintenance, of the ozone National Ambient Air Quality Standard 

(NAAQS) in a downwind area {2) However, Delaware's ability to achieve and maintain healthbased air quality standards for its own residents is severely impacted by sources outside of the 

state of Delaware. This is due to the fact that more than 94% of the ozone levels in Delaware are 

created by the transport of air pollutants from upwind areas. Attainment and maintenance of the 

2008 and 2015 8-hour ozone NAAQSs in Delaware is possible only through additional emission 

reductions in the upwind states that significantly contribute to non-attainment and maintenance 

in Delaware. 

Section 126(b) of the CAA provides that, "(a ]ny State or political subdivision may petition the 

Administrator for a finding that any major source or group of stationary sources emits or would 

emit any air pollutant in violation of the prohibition of Section IIO(a)(2)(D)(i) or this section." 

In accordance with §126(b) of the Clean Air Act, the state of Delaware petitions the 

Administrator of the EPA establish a timely schedule for the above-referenced Harrison Power 

Station electric generating facility and the state of West Virginia to put those entities in 

compliance with §IIO(a)(2)(D)(i) of the Clean Air Act with respect to the 2008 8-hour O.o75 

ppm ozone NAAQS and 2015 8-hour 0.070 ppm ozone NAAQS. (3) 

Background 

The EPA began to address air quality issues related to ambient ozone through establishment of a 

related National Ambient Air Quality Standard in 1971. In 1997 the EPA first established the 8· 
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30463.129

hour ozone NAAQS to protect human health and welfare at a level of 0.08 ppm. The EPA 

subsequently lowered the 8-hour ozone NAAQS to 0.075 ppm in 2008. After further evaluation, 

the EPA further lowered the 8-hour ozone standard to 0.070 ppm on October 26, 2015. (1) 

The establishment of the short term ozone standard (8-hour NAAQS) was necessary to address 

the potential health impact of short term exposure to high levels of ozone. Short term exposure to 

ozone can cause rapid, shallow breathing and related airway irritation, coughing, wheezing, 

shortness of breath, and exacerbation of asthma, particularly in sensitive individuals and 

asthmatic children. Short term exposure also suppresses the immune system, decreasing the 

effectiveness of bodily defenses against bacterial infections. Research studies indicate that 

markers of cell damage increase with ozone exposure. Some studies suggest that there is a link 

between ozone exposure and premature death of adults and infant death. Other studies indicate a 

link between ozone and premature birth and adverse birth outcome, cardiovascular defects, and 

adverse changes in lung structure development in children. Children, the elderly, those with 

chronic lung disease, and asthmatics are especially susceptible to the pulmonary effects of ozone 

exposure. Additionally, studies have shown that ozone can adversely affects trees and vegetation, 

can cause reduced crop yields, and can contribute to nitrification of bodies of water. 

Atmospheric ground level ozone that is harmful to human health and welfare is formed primarily 

by the chemical reaction of nitrogen oxides (NOx) with volatile organic compounds (VOC's) in 

the presence of heat and sunlight. Dry, hot, sunny days are most conducive to the formation of 

ozone. Because ground level ozone concentrations are highest when sunlight is the most intense, 

in the eastern United States the warm summer months (May I through September 30) are 

referred to as the ozone season. Weather also affects ozone concentrations and how quickly it is 

transported and dispersed. Periods of light winds allow ozone and ozone precursor pollutants to 

build up in any particular area leading to greater concentrations. However, the wind can also be 

responsible for transporting the ozone and ozone precursors over long distances downwind. This 

downwind pollutant transport can then combine with more local emissions to contribute to 

exceeding the ozone NAAQS in any particular location. 

Delaware has experienced a number of exceedances of the health based 8-hr ozone NAAQS. 

(4) The following table identifies the number of 8-hour ozone NAAQS exceedances experienced 

in Delaware during the ozone seasons for the years 2000 through 2015: 

2 
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Table 1 

Actual Delaware Ozone Exceedances- 8-Hour NAAQS 

New castle county· Kent County • sussex County • Total No. of 

No. of Days of No. of Days of No. of Days of Days of 

Exceedance Exceedance Exceedance Exceedance 

2016 Ozone Season •11 5 3 

2015 Ozone Season•• 

2014 Ozone Season** 

2013 Ozone Season .. 

2012 Ozone Season•• 13 14 12 19 

2011 Ozone Season•• 11 3 15 

2010 Ozone Season .. 14 9 18 

2009 ozone Season .. 3 3 

2008 ozone Season•• 14 

2007 Ozone Season••• 5 

2006 Ozone Season••• 4 

2005 Ozone season••• 2 16 

2004 Ozone Season••• 5 

2003 Ozone Season••• 

2002 ozone Season••• 18 10 16 26 

2001 ozone Season••• 18 10 21 

2000 Ozone season••• 8 7 11 

•= 0. 70 ppm Standard ••= 0.075 ppm Standard ... = 0.08 ppm Standard 

#Partial20 16 Ozone Season May I though July 22 -Preliminary Data 

On October I, 2015, the EPA strengthened the 8-hour ozone NAAQS to 70 ppb based upon 

scientific evidence of ground level ozone's negative effect on public health and welfare. 

Relative to the 2008 8-hour ozone standard, the updated 8-hour ozone NAAQS is expected to 

further improve public health protection, particularly for at-risk groups, and also improve the 

health of trees, plants, and ecosystem. If the 2015 8-hour ozone standard of70 ppb had been in 

effect for the past several years, based upon monitoring data, it is estimated that Delaware would 

have experienced a higher number of 8-hour ozone exceedances compared to the actual 

exceedances of the 2008 8-hour ozone standard of 75 ppb. The following table provides a 

comparison of the actual 8-hour ozone NAAQS exceedances and the estimated exceedance that 

would have occurred if the 70 ppb standard had been in effect: 
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Ozone 

Season 

2010 

2011 

2012 

2013 

2014 

2015 

Tablel 

Comparison of Actual vs Estimated Days of Ozone Exceedance 

2008 8-hour Ozone NAAQS vs 2015 8-hour Ozone NAAQS 

Estimated Number of Estimated Number of 

Actual Number of Actual Number of Days of ozone Monltor~Days of Ozone 

Days of 75 ppb Monitor-Days of 75 ppb Standard E•ceedance Standard EKceedance 

Ozone Standard Ozone standard Assuming 70 ppb Assuming 70 ppb 

Exceedance Exceedance Standard Standard 

18 28 36 91 

15 20 25 73 

19 39 28 107 

7 

17 

10 16 

It can be seen in the above table that if the more stringent 2015 8-hour ozone NAAQS of70 ppb 

were in effect during the 2010 through 2015 ozone seasons that Delaware would have exceeded 

that standard at a much higher rate than it experienced under the 2008 8-hour ozone NAAQS of 

75 ppb. As shown in the above table, for the 2010 through 2015 ozone season, the number of 8-

hour ozone NAAQS exceedance day would increase from 59 days under the 2008 NAAQS to 

113 days under the 2015 NAAQS. 

As discussed earlier, NOx is a precursor pollutant to the formation of atmospheric ozone. NOx 

is a generic term for a group of reactive gasses that are composed of nitrogen and various 

amounts of oxygen (including nitrogen oxide and nitrogen dioxide). NOx is formed in the 

combustion process as a result of high temperature chemical reactions of the nitrogen contained 

in the fuel and the nitrogen contained in the ambient combustion air along with oxygen in the 

combustion air. Fossil fuel-fired electric generating units are some of the largest emitters of 

NOx, with EGUs powered by coal-fired steam generators without NOx emissions controls 

exhibiting some of the highest NOx emission rates (in terms of lb/MMBTU). 

Uncontrolled, higher nitrogen content fuels, such as coal and residual fuel oil, tend to result in 

higher NOx emissions than lower nitrogen content fuels (such as natural gas). Various 

combustion configurations tend to result in varying NOx emission rates (in terms of pounds of 

NOx emitted per million BTU of fuel heat input (lb/MMBTU)) due to amounts of excess air 

required for combustion, rate of fuel combustion, combustor geometry, peak combustion 

temperatures, and duration of combustion gasses at peak temperatures, etc. Combustion 

controls, such as low NOx burners and overfire air, are commercially available NOx reduction 

technologies adaptable and applicable to most EGU combustion systems. Post combustion NOx 

controls, such as selective non-catalytic reduction (SNCR) and selective catalytic reduction 

(SCR), are commercially available highly effective NOx reduction technologies that are 

4 
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30463.132

applicable to most EGU exhaust gas streams. These NOx controls are generally available for 

both new EGU installations and for retrofit on existing EGUs. Utilization of combustion 

controls and post combustion controls, singly or layered together for a single EGU, can result in 

significant reductions in the EGUs NOx emissions rate, greater than 900/o reduction from 

uncontrolled levels for some EGUs. 

To address the NOx emissions from EGU sources located in the state of Delaware, Delaware has 

promulgated a number of rules and regulations that effectively control the NOx emissions from 

these EGUs which also fulfils Delaware's obligation under §II O(a)(2}{D)(i)(l) of the Clean Air 

Act. These rules and regulations have been previously submitted to the EPA in Delaware's June 

2007 and subsequent state implementation plan (SIP) revisions, including the June 2012 revision. 

(5) The referenced rules and regulations include the following: 

7 DE Admin Code 1112, Control of Nitrogen Oxide Emissions, which set RACT-based NOx 

emission rate standards for major stationary sources, including EGUs. (6) 

7 DE Admin Code 1146, Electric Generating Unit (EGU) Multi-Pollutant Regulation, which 

included short tenn NOx emission rate limits (lb!MMBTU on rolling 24-hour average) and 

annual NOx mass emissions caps for coal-fired and residual oil-fired EGUs. (7) 

7 DE Admin Code 1148. Control of Stationary Combustion Turbine Electric Generating 

Unit Emissions, which set NOx emission rate limits or approved NOx control technology 

requirements (such as water injection) for combustion turbines with a nameplate rating of I 

MW or greater that had not previously controlled their NOx emissions rate in accordance 

with the NOx RACT requirements of7 DE Admin Code 1112. (8) 

In addition to the NOx control regulations noted above, Delaware has participated in regional 

and federal initiatives, where applicable, that were designed to limit the NOx emissions from 

EGU sources whose NOx emissions may impact compliance with ozone standards in downwind 

states. These regional and federal initiatives include the following: 

The Ozone Transport Commission (OTC) NOx Budget Program. (9) In 1990, the OTC was 

created by amendments to the Clean Air Act. The OTC consisted of northeast and midAtlantic states with persistent summertime ozone problems. These OTC states include 

Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New 

Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and portions of 

Virginia. The OTC was tasked with advising the EPA on ozone transport issues and for 

helping to develop and implement regional solutions to ozone problem experienced by the 

member states. Recognizing that the interstate transport of pollutants to downwind states 

contributed to summertime ozone problems in those downwind states, the OTC created and 

implemented its NOx Budget Program. The NOx Budget Program was a cap-and-trade 

5 
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30463.133

program to limit the total regional emission of NOx from fossil-fueled electric generating 

units and large boilers located in OTC states, and became effective in 1999. Cap and trade 

programs effectively reduce the total amount of emissions, usually for a geographic area, by 

placing a cap on the total emissions occurring in that geographic area without setting unit by 

unit limits. For the OTC NOx Budget Program, affected states were allocated a NOx 

emissions cap for the subject NOx emitting sources in the respective state, and the subject 

units were required to hold and surrender a NOx allowance for each ton of NOx emitted in 

order to comply with program requirements. This program did not include any unit specific 

NOx emissions rate requirements. The OTC NOx Budget Program effectively ended when 

the EPA began administering the EPA's NOx Budget Trading Program. 

The EPA NOx State Implementation Plan (SIP) Rule. (10) In 2003 the EPA implemented its 

NOx State Implementation Plan (SIP) Rule utilizing the NOx Budget Trading Program, a 

NOx emissions cap and trade program similar to that used for the OTC NOx Budget 

Program. Relative to the OTC NOx Budget Program, the EPA's NOx Budget Trading 

Program was expanded to include additional states (for a total of 20 states and also the 

District of Columbia) and established more stringent NOx emissions allowance 

allocations. The EPA's NOx State Implementation Plan (SIP) Rule was intended to reduce 

the regional transport of ozone and ozone-forming pollutants in the Eastern United 

States. The NOx State Implementation Plan (SIP) Rule was in place until2009, when it was 

replaced by the EPA's Clean Air Interstate Rule (CAIR). 

The EPA Clean Air Interstate Rule (CAIR). (ll) In 2005, the EPA promulgated its CAIR 

program that required states to reduce the emissions of S02 and NOx to help meet health 

based air quality standards for fine particulate matter and ozone. The EPA indicated in the 

proposal for the CAIR that NOx and S02 emissions in 23 states and the District of Columbia 

contributed to unhealthy levels of fine particulate matter in downwind states, and that the 

NOx emissions from 25 states and the District of Columbia contributed to unhealthy levels 

of 8-hour ozone in downwind states. EPA indicated that the reduction of S02 and NOx 

emissions from EGUs would serve to reduce the interstate transport of pollutants related to 

these emissions. CAIR established a cap-and-trade program covering EGUs to limit the 

emissions of S02 and NOx from these sources as an option for compliance with the 

reduction requirements. (All states subject to the CAIR selected this compliance 

option.) S02 and NOx emissions mass caps were established for individual states and 

allowances were issued by the EPA to cover those allowable emissions from subject 

sources. The cap-and-trade program was intended by the EPA to provide subject sources 

flexibility in meeting the mass emissions limitations through the installation of controls, fuel 

switching, or trading/purchase of excess allowances from other subject sources. The NOx 

emissions limitations of CAIR became effective in 2009, and the S02 emissions limitation 

of CAIR became effective in 2010. The EPA made a number of changes to the CAIR 

6 
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30463.134

subsequent to its original proposal, the most notable was the establishment of a process to 

provide for EPA to establish CAIR Federal Implementation Plans (FIPS) for states that 

failed to timely establish state plans for the implementation of CA!R. This ensured that the 

controls of the cap-and-trade program were uniformly established in all subject states on a 

timely basis. 

The EPA Cross-State Air Pollution Rule (CSAPR). (12) Subsequent to the promulgation of 

CAlR, legal actions lead the US Court of Appeals for the DC Circuit to make the decision in 

2008 to remand the CAIR back to the EPA to make the rule more consistent with the 

requirements of the Clean Air Act. However, the courts left the requirements of CAIR in 

place until the EPA finalized a replacement rule. In response, the EPA promulgated its 

Cross-State Air Pollution Rule (CSAPR) in 2011. Additionally, in conjunction with the rule 

the EPA established federal implementation plans (FIPS) for each state subject to the 

CSAPR in order to implement the rule as rapidly as possible. In the rulemaking process the 

EPA identified for subject states what portions of each state's emissions significantly 

contributed to ozone or PM2.5 pollution in downwind states. The CSAPR established mass 

emissions limitations of S02 and NOx from power plants in subject states to eliminate the 

portion of those emissions that are significant contributions to non-attainment or 

maintenance of fine particulate matter and ozone air quality standards in downwind 

states. The CSAPR established annual mass emissions limitations for S02 and NOx and 

additional ozone season NOx mass emissions linritations for NOx. Between the original 

CSAPR and subsequent actions, there were 26 states subject to the ozone season NOx mass 

enrissions limitations to address the 1997 Ozone NAAQS, 18 states were subject to annual 

S02 and NOx mass emissions limitations of the rule to address the 1997 Annual PM2.5 

NAAQS, and 21 states were subject to annual S02 and NOx mass emissions limitations to 

address the 2006 24-hr PM2.5 NAAQS (a combined total of 23 states for addressing the two 

PM2.5 NAAQS). Relative to previous mass-based emissions rules, the CSAPR significantly 

restricted the trading of allowances that could be utilized for compliance purposes by 

establishing state variability limits that ensure that a state's actual mass emissions would 

fulfill its Clean Air Act "good neighbor'' obligations. The EPA determined that Delaware 

was not required to participate in CSAPR. 

In 2012 the CSAPR was challenged in court, and the US Court of Appeals for the DC 

Circuit vacated the CSAPR and the implementing F!Ps. The Court remanded the rule to the 

EPA to address the Courts findings, and directed the EPA to continue administering CAIR 

pending the promulgation of a valid rule to replace CAIR. As of this ruling, CAIR cap-andtrade programs for annual S02, annual NOx, and ozone season NOx remained in place. (12) 

In April of 2014 the US Supreme Court reversed the DC Circuit court's opinion vacating 

CSAPR. In June of2014 the EPA filed a motion with the U.S. Court of Appeals for the DC 

7 
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30463.135

Circuit to lift the stay of the CSAPR, and in October of 2014 the Court of Appeals for the 

DC Circuit granted the EPA's motion. In November of 2014 the EPA issued a ministerial 

rule that aligned the dates in the CSAPR rule text with the revised court-ordered schedule, 

including 2015 Phase I CSAPR implementation and 2017 Phase 2 CSAPR implementation. 

(12) 

In November of 2015 the EPA proposed an update to the CSAPR by issuing the proposed 

CSAPR Update Rule. (13) Starting in 2017, this proposal would reduce summertime 

nitrogen oxides (NOx) emissions from power plants in 23 eastern states, by establishing 

NOx mass emission caps, in order to reduce the impact of those power plant emissions on 

downwind states. In its proposal, the EPA has requested comments regarding the potential 

application of short term NOx emission limits on these same power plants. The EPA 

determined that Delaware was not required to participate in the CSAPR Update. 

These State and regional NOx reduction efforts have resulted in significant NOx emissions 

reductions from EGU s located in the state of Delaware. These reductions have occurred both in 

terms of ozone season NOx mass emissions (tons) and also in average ozone season NOx 

emissions rates (lb/MMBTU). The following table was assembled with data extracted from the 

United States Environmental Protection Agency's Air Markets Program Data (EPA's 

AMPD). (14) The table shows the ozone season NOx mass emissions (tons) and average NOx 

emissions rate (lb/MMBTU) for the EGU fleet located in the state of Delaware: 
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30463.136

Table3 

2000-2015 Ozone Seasons 

State of Delaware 

Total EGU NOx Mass Emissions and Average NOx Emission Rate 

Change in AverageNOx Change in 

Total EGU NOKMass Emissions Average NOx 

OSNox Emissions Rate Emission 

Year Mass (tons) from 2000 (%) (lb/MMBTU) Rate(%) 

2000 4137 0.0 0.2794 o.o 2001 4777 15.5 0.2806 0.8 

2002 4609 11.4 0.2415 -13.3 

2003 3850 -6,9 0.2374 -14.7 

2004 3659 -11.6 0.2449 -12.0 

2005 5175 25.1 0.2818 1.2 

2006 3567 -13.8 0.2582 -7.3 

2007 4179 1.0 0.2398 -13.9 

2008 3190 -22.9 0.2277 -18.2 

2009 1280 -69.1 0.1695 -39.1 

2010 2265 -45.3 0.1484 -46.7 

2011 1879 ·54.6 0.1250 -55.1 

2012 1054 ·74.5 0.0585 ·79.0 

2013 879 -79.7 0.0589 -79.9 

2014 668 -83.9 0.0483 -82.7 

2015 628 -84.8 0.0494 -82.3 

However, relatively long term NOx mass emission caps (such as annual or seasonal caps) have 

limited impact on the short term NOx emissions (such a 24-hour period) from EGUs that have a 

more direct impact on compliance with short tenn air quality standards, such as the 8-hour ozone 

NAAQS. To address this issue, Delaware's air quality regulations have included short term NOx 

emission rate limits (with 24-hour avemging periods) that are protective of the short tenn ozone 

NAAQS. These short term NOx emission mte limits have helped Delaware achieve significant 

reductions in ozone season peak daily NOx mass emissions from Delaware's EGUs. 

9 
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30463.137

.---------·--------G_ra_p_h_l _____ . ____ . ______ __ _ 

Delaware Total EGU Ozone Season Peak Day NOx Mass 

Emissions 

r---c---------------·--------------

It can be seen in the above Graph I that between the 2000 and 2015 ozone seasons, the 

Delaware's EGUs have achieved a NOx mass emissions reduction (for ozone season peak NOs 

mass emissions days) in excess of 80% reduction. 1hls reduction in peak ozone season day NOx 

mass emissions provides benefit in attaining compliance with the 8-hour ozone NAAQS for both 

Delaware's citizens and downwind populations. 

Even though Delaware has significantly reduced the NOx emissions from EGUs located in 

Delaware, as discussed above, Delaware continues to experience exceedances of the 8-hour 

ozone NAAQS. Pollutants transported from facilities in upwind states are significant 

contributors to Delaware's continuing issues in meeting the 8-hour ozone NAAQS. 

Modeling Identifies Impact of Upwind NOx Emissions Impacting Delaware's 8-hour 

Ozone NAAQS Compliance 

The US EPA performed modeling as part of the development of its Cross-State Air Pollution 

Rule in order to help determine the impact of transported pollutants on downwind states and 

those states' ability to attain and maintain the then current 2008 ozone NAAQS of75ppb. Some 

results of the modeling that identify state contributions to ozone at individual monitoring 

locations can be found on the spreadsheet titled "Contributions of 8-hour ozone, annual PM2.5, 

and 24-hour PM2.5 from each state to each monitoring site" located in the "Technical 

Information and Support Documents" section of the US EPS's Cross-State Air Pollution Rule 

(CSAPR) website. (15) 

10 
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30463.138

The US EPA's modeling identified 13 individual states (in addition to Delaware itself) whose 

NOx emissions significantly impact the ability of Delaware to attain and maintain the then 

current 8-hr ozone standard of75 ppb. (16) (A state significantly impacts another state if it 

impacts that state's air quality by I% or more of the applicable air quality standard. For the then 

current 8-hr ozone standard of 75 ppb, a significant contribution was 0.75 ppb or greater.) The 

states identified by the US EPA as significantly impacting Delaware's air quality, and the 

modeling results quantifying each state's impact, are shown in the following table: 

Table4 

States Significantly Impacting Compliance with the 8-hour 

Ozone Standard in Delaware and the Magnitude of that Impact 

Maximum 

Conblbution 

State (ppb) 

CT 1.008 

DE 6.256 

IL 1.445 

IN 1.737 

KY 3.208 

MD 23.951 

Ml 2.207 

NJ 13.034 

NY 9.092 

OH 3.987 

PA 13.344 

TN 1.932 

VA 6.039 

wv 3.142 

The EPA's modeling results, summarized in the above table, indicate that four states (Maryland, 

New Jersey, New York, and Pennsylvania) have greater impact on compliance of the 8-hour 

ozone standard in Delaware than the impact of Delaware itself. The EPA's modeling results 

summarized in the above table also indicate that three states (Kentucky, Ohio, and West 

Virginia) individually have an impact on compliance of the 8-hour ozone standard in Delaware 

of 50% of the impact that Delaware impacts itself. These modeling results tend to confnm that 

pollutant transport is a significant issue for the state of Delaware, and they also help explain 

Delaware's ongoing difficulties with the 8-hour ozone standard despite the significant actions 

Delaware has implemented to reduce NOx and VOC emissions in Delaware. 

Harrison Power Station's Impact on Delaware's 8-honr Ozone NAAQS Compliance 

11 
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As noted in Table 4 above, the EPA's modeling indicated that the State of West Virginia 

significantly impacts Delaware's compliance with the 8-hour ozone NAAQS. Because of the 

magnitude of West Virginia's impact on Delaware's compliance with the 8-hour ozone standard, 

and the potential contribution to this impact by EGUs located in West Virginia, further modeling 

was performed to determine if individual West Virginia EGU facilities individually have a 

significant impact on Delaware's compliance with the 8-hour ozone standard. 

In order to help Delaware assess the impact of upwind EGU facility NOx emissions on 

Delaware's 8-hour average ozone exceedances in 2011, Sonoma Technologies Inc. (STI) 

conducted air quality modeling using the Comprehensive Air Quality Model with extensions 

(CAMx) Ozone Source Apportiomnent Technology (OSAT) (17). The 2011 ozone season 

modeling was performed to determine 8-hour average ozone apportiomnents from individual 

upwind EGU facilities and upwind groups of EGU facilities. The modeling identified that the 

Harrison Power Station located in the state of West Virginia individually had significantly 

impacted Delaware's compliance with the 8-hour ozone NAAQS. 

Because of the magnitude of its impact on Delaware's ambient ozone, the Harrison Power 

Station is being individually addressed in this petition for a finding under § l26(b) of the Clean 

Air Act. 

The STI modeling results indicated that the Harrison Power Station, located in Harrison County, 

West Virginia, emitted NOx during the 2011 ozone season at levels to individually have a 

significant impact on Delaware's air quality as measured by Delaware's ambient ozone 

monitors. The following table shows the days of the 2011 ozone season that the STI modeling 

estimated that the Harrison Power Station's NOx emissions impacted Delaware's ambient ozone 

at significant levels: 

Month 

6 

TableS 

Harrison Power Station NOx Emissions 

STI Modeling Estimated Impact on Delaware Air Monitors 

2011 Ozone Season 

Day 

19 

10 

VE!ar 

2011 

2011 

STI Estimatl!d 8-Hour Avg AMPD Dally NOx Mass 

OzonE! Impact (ppb) Emissions (tons) 

0.71 35.634 

0.84 61.588 

As shown in the above Table 5, the STI modeling estimated that during the 20 ll ozone season 

the Harrison Power Station's NOx emissions had a significant impact on Delaware's ambient 

ozone on two days relative to the 2015 8-hour ozone NAAQS of 0.070 ppm, and one day of 

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significant impact relative to the 2008 8-hour ozone NAAQS of 0.075 ppm. As shown in the 

table, the highest estimated impact occurred August 10, 2011 with a modeled impact value of 

0.84ppb. 

Harrison Power Station 

The Harrison Power Station is located near Haywood, Harrison County, West Virginia. The 

Energy Information Administration (EIA) database indicates that the Harrison Power Station 

includes three coal fired steam electric generating units that incorpomte Foster Wheeler 

supercritical steam genemtors. (18) The following table provides some technical information 

regarding the Harrison Power Station's coal-frred electric generating units: 

Unit 

I 

Table6 

Harmon Power Station Electric Generating Units 

EIA EIA EIA Permit Heat 

Nameplate Summer EIA Commetela! lnpUO AMPOHeat 

Rating Capacity Primary Operation Capadty lnutCap31elty 

Ganerator Prime Mov~tr (MW) (MW) Fuel VOOf (MMBl\1/hr) (MMBllJ/hr) 

steam Turbine "' 652 Bit COal 1972 &325 7583 

steam Turbine ... 651 saec.at 1973 &325- 7500 

Steam Turbine G!4 &51 BltCcal 1974 ms 7700 

AMPD Reported 

NOitControlt 

!.NB&SCR 

LNB&SCR 

LNB&SCil 

The Harrison Power Station is currently owned and operated by Monongahela Power 

Company. The facility is located within the PJM RTO and the facility and its electric generating 

units opemte as independent power producers. These units would be expected to typically 

operate as dispatched by PJM for reliability and economic purposes to support the electric 

grid. EIA data indicates that the three Harrison Power Station coal-fired EGUs predominately 

fire bituminous coal from the state of West Virginia as their primary fuel. 

As shown in Table 6, there is a significant difference in the heat input capacity rating for the 

three Harrison Power Station coal-fired EGUs listed in the station's permit and the heat input 

rating for those same EGUs listed in the AMPD. The difference in these values is significant, 

and can have an impact when estimating unit capacity factors aod performing pollutant potential 

to emit (PTE) calculations. A review of the hourly heat input data in the AMPD indicates many 

hours for each unit with heat inputs well in excess of the permit values for heat input capacity. 

Therefore, it is assumed that the actual heat input capacity for the three Harrison Power Station 

coal-fired EGUs is more accurately represented by the heat input capacity values identified in the 

AMPD. 

Harrison Power Station NOx Emissions Limitations and Performance 

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As noted in Table 6 above, the Harrison Power Station Units I, 2, and 3 are currently equipped 

with low NOx burners (LNBs) and selective catalytic reduction systems (SCR) for control of 

NOx emissions. AMPD data indicates that the SCR for Unit I was installed in 2001, and the 

SCRs for Units 2 and 3 were installed in 2003. The SCRs were installed to assist in compliance 

with the requirements of the EPA's NOx State Implementation Plan (SIP) Rule and facilitate 

participation in the NOx Budget Program. 

The Harrison Power Station coal-fired Units I, 2, and 3 are also subject to operating permit NOx 

emission rate limits. The Harrison Power .Station permit indicates that the NOx emission rate 

limits are those prescribed in the Harrison Power Station's Acid Rain Program (ARP). The ARP 

NOx emission rate limits for each of the three coal-fired units is 0.42 lb/MMBTU, annual 

average. (19) Data from the AMPD appears to indicate tbat the Harrison Power Station coalfired EGUs have consistently been in compliance with these ARP NOx emission rate limits. 

Monongahela Power Company has submitted a permit amendment to install and operate a 

refined coal facility at the Harrison Power Station. The refined coal process is intended to 

produce a lower emitting coal-fuel for combustion in the Harrison Power Station's coal fired 

EGU steam generators. In the proposed permit amendment, a provision has been proposed to 

include ozone season NOx emission rate limits of 0.20 lb/MMBTU, 30-day average, for each of 

the three coal-fired EGUs. As of the preparation of this petition, this permit amendment has not 

been approved and is therefore not yet in force. More discussion of the proposed ozone season 

0.20 lb/MMBTU NOx emission rate limitation is provided below in this petition. 

Harrison Power Station Units I, 2, and 3 have also all been subject to various NOx emissions cap 

and trade programs. Beginning with the 2003 ozone season through the 2008 ozone season, 

Harrison Power Station Units I, 2, and 3 participated in the EPA's NOx Budget 

Program. Beginning with the 2009 ozone season through the 2014 ozone season, Harrison 

Power Station Units I, 2, and 3 participated in the EPA's Clean Air Interstate Rule ozone season 

trading program. And beginning with the 2015 ozone season, Harrison Power Station Units I, 2, 

and 3 participated in the Transport Rule ozone season NOx trading program. While these 

various trading programs effectively put a seasonal NOx emissions mass cap on the fleet of 

subject units, it did not require the subject units to limit their NOx emissions over any particular 

portion of the ozone season as long as the EGU was able to obtain sufficient NOx allowances to 

balance that unit's actual ozone season NOx mass emissions. 

The following graph shows the ozone season average NOx emission rate values for Harrison 

Power Station I, 2, and 3 for the ozone season of 2002 through 2015. 

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Grapb2 

Harrison Power Station Electric Generating Units 

~ ~ _ . --~ ~ ~ .. Q.zo.ne Season Avet:llgl) N9.!.~1ll.~!ll!l~.J!.a_!~--~ --~ ·--·- ~-

0.45 

~ 0.4 

.. 

1: 

.5! 0.35 

.~ 

.!l 0.3 

~s 

z Iii 0.25 

&:t 

~! 0.2 >:9 <(-

1: 0.15 

! "' 0.1 .. 

c: 5 0.05 

2002 2003 2004 zoos 2006 2007 2008 2009 2010 20112012 2013 2014 2015 

Ozone Season Year 

iiiUnitl 

till Unit2 

Unit3 

In can be seen in Graph 2 above that for a period of several years after installation of SCR NOx 

controls in 2003, the three Harrison Power Station coal-fired electric generating units exhibited 

ozone season average NOx emissions rates representative of operation of the SCRs with good 

pollution control practices. However, from the 2010 ozone season and beyond, the ozone season 

average NOx emission rates for each of the three Harrison Power Station coal-fired EGUs were 

well above what might be expected from coal-fired EGU's with operating SCRs. And as shown 

in Graph 2, the ozone season average NOx emission rates from the Harrison Power Station coalfired EG lJ s for the 20 14 and 2015 ozone seasons were as high as the pre-SCR installation ozone 

season year of 2002. This is an indication that existing NOx emission rate limits and seasonal 

NOx mass emissions regulatory requirements have not been sufficient to result in consistently 

low NOx emission rates from the Harrison Power Station EGUs. 

The following graph shows the Harrison Power Station's highest daily ozone season NOx mass 

emissions for the 2000 through 2015 ozone seasons. 

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Graph3 

Harrison Power Station Highest Ozone Season Daily NOx Mass Emissions 

140 

I 120 

s 

z 100 fj 

IJj:: 40 

J 20 

0 I 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 20112012 2013 2014 

Drone Seo1on Yeor 

The information in the above graph indicates that the existing NOx emission rate limits and 

seasonal NOx mass emissions regulatory requirements, in conjunction with the installation of 

SCR NOx emissions controls in 2003, have not been sufficient to result in consistently low peak 

ozone season daily NOx mass emissions from the Harrison Power Station EGUs 

The information in the above graph also indicates that in the ozone seasons since SCRs were 

installed (2003) on the Harrison Power Station EGUs, ten of the thirteen years show a daily peak 

NOx mass emissions value in excess of the 61.588 ton/day NOx mass emissions associated with 

the STI modeling that estimated an impact of0.84 ppb on Delaware's ambient ozone. 

Emissions data in the AMPD for the Harrison Power Station indicates that daily ozone season 

NOx emissions from the Harrison Power Station are frequently greater than the 61.588 tons/day 

that STI modeling estimated had an impact of 0.84 ppb on Delaware's ambient ozone on August 

10, 20 II. The following table shows the number of days that the Harrison Power Station ozone 

season NOx mass emissions exceeded 61.588 tons/day during the 2002 through 2015 ozone 

seasons. 

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Table7 

Harrison Power Station 

Ozone Season Days wiN Ox Emissions Above STI Estimated Significant Delaware Impact 

o.s. Days w/NOx Mass Emissions 

Ozone Season Greater Than 61.588 Tons 

2002 69 

2003 5 

2004 27 

2005 0 

2006 

2007 1 

2008 13 

2009 0 

2010 ll 

2011 6 

2012 10 

2013 so 

2014 103 

2015 24 

It can be seen in the above table that in recent years the Harrison Power Station's daily ozone 

season NOx mass emissions have frequently exceeded the 61.588 ton/day value that STI 

modeling estimated had an impact of 0.84 ppb on Delaware's ambient ozone on August 10, 

2011. There can be no doubt that operation of the Harrison Power Station's coal-fired EGUs 

with NOx emission rates well in excess of the rates achievable with the installed SCRs, as shown 

in Graph 2, contribute greatly to the frequency of ozone season high NOx mass emission days. 

The contrast between operation of the Harrison Power Station EGUs with and without high 

levels of NOx control from the existing SCRs can be easily seen when comparing AMPD data 

for the 2005 and 2015 ozone seasons. During the 2005 ozone season, the AMPD data shown in 

Graph 2 indicates that the average ozone season NOx emission rate (in lb/MMBTU) for the 

facility was one of the lowest average values between the 2002 and the 2015 ozone seasons. The 

2015 is the latest ozone season for which a full season of data was available. The following table 

compares the highest heat input days for the Harrison Power Facility for the 2005 and 2015 

ozone seasons. 

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Table 8 

Harrison Power Station 2005 and 2015 Ozone Season High Heat Input Days 

Facility Facility NOx Facility Avg. NOx 

Heat Input Mass Emissions Emissions Rate 

Highest Ozone Season Heat Input Date (MMBTU) (tons) (lb/MMSTU) 

June 27, 2005 425666.2 11.466 0.0539 

June 22, 2015 394072.5 65.118 0.3305 

The data in Table 8 clearly shows that even though the Harrison Power Station heat input was 

higher on June 27, 2005 compared to June 22, 2015, the NOx mass emissions from the facility 

on June 27, 2005 were only a fraction of the facility's NOx mass emissions on June 22,2015. 

The table shows that the difference in NOx mass emissions is primarily the result of a 

significantly lower NOx emission rate on June 27, 2005. This data clearly points out the impact 

of operation of SCR in accordance with good pollution control practices compared to just having 

the SCRs in place without adequate incentive to reduce NOx emissions. 

The AMPD emissions data for the Harrison Power Station indicates that not only arc there large 

changes in NOx emission control operations between ozone seasons, but there are also large 

swings in NOx emission control operations during a single ozone season. For example, the STI 

modeling estimated that Harrison Power Station NOx emissions had an impact of 0.71 ppb on 

Delaware's ambient ozone on June 18, 2011 and had an impact of 0.84 ppb on Delaware's 

ambient ozone on August 10, 2011. The following table shows some relevant operating data for 

the Harrison Power Station for June 18,2011 and August 10,2011. 

Table 9 

Harrison Power Station 2011 Ozone Season NOx Emissions Rate Comparison 

Facility Heat Facility Avg. NOx 

Input Capacity Total NOx Mass Emisisons Rate 

Date Units on Line Factor(%) Emissions (tons) (lb/MMBTU) 

June 18, 2011 3 of 3 93 35.634 0.1694 

August 10, 2011 2 of 3 54 61.588 0.4237 

It can be seen in the above table that the Harrison Power Station NOx mass emissions on August 

10, 2011, with only two of three coal-fired EGUs on line, were significantly higher than on June 

18, 2011 when all three coal-fired EGUs were on line an operating at high capacity factors. The 

unexpected increase in NOx mass emissions with the lower facility capacity factor is due to a 

significantly higher average daily NOx emission rate on August 10, 2011 when compared to the 

June 18, 2011 facility daily average NOx emissions rate. It can be seen in the table that the 

August 20,2011 facility average NOx emissions rate is more than double than the June 18,2011 

facility average NOx emissions rate. The high August 10, 2011 facility daily average NOx 

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emissions rate appears representative of operation with the SCRs totally out of service. The June 

18, 2011 facility daily average NOx emission rate of 0.1694 lb/MMBTU appears to be 

representative of operation with the SCRs in service but being operated at reduced levels of 

effectiveness. This is an indication that decisions to operate the SCR NOX controls at the 

Harrison Power Station are not being made only on a seasonal basis, but perhaps also on a daily 

basis as a result of other EGU operating influences. 

Peak NOx Mass Emissions Are Not Always Required to Significantly Impact Downwind 

NAAQS Compliance 

While many evaluations for assessing downwind impact of upwind emissions are conducted for 

periods when the upwind emissions are at or near their peak, under some naturally occurring 

ambient conditions upwind NOx emissions, much lower than peak levels, can significantly 

impact downwind compliance with the 8-hour ozone NAAQS. This is a situation that can occur 

between the upwind Harrison Power Station's NOx emissions and the monitored ozone levels in 

Delaware. 

The 2011 ozone season modeling performed by STI indicates that for the Harrison Power 

Station, it is not necessary for the facility to be operating near its maximum daily NOx mass 

emissions levels to significantly impact Delaware's compliance with the 2015 8-hour ozone 

NAAQS of0.70 ppb. As shown in Table 5, the STI modeling estimated that on June 18,2011, 

the Harrison Power Station NOx mass emissions of 35.634 tons had an impact of 0.71 ppb on 

Delaware's ambient ozone. This value of 35.634 tons/day is significantly lower that the Harrison 

Power Station's highest daily ozone season NOx mass emissions since installation of the SCRs, 

96.965 tons/day recorded on August 13,2011. 

Emissions data in the AMPD for the Harrison Power Station indicates that daily ozone season 

NOx emissions from the Harrison Power Station are frequently greater than the 35.634 tons/day 

that STI modeling estimated had an impact of 0.71 ppb on Delaware's ambient ozone on June 

18, 2011. The following table shows the number of days that the Harrison Power Station ozone 

season NOx mass emissions exceeded 35.634 tons/day during the 2002 through 2015 ozone 

seasons. 

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Table 10 

Harrison Power Station 

Ozone Season Days wiN Ox Emissions Above STI Estimated Significant Delaware Impact 

0.$. Days w/NOx Mass Emissions 

Ozone Season Greater Than 35.634 Tons 

2002 140 

2003 33 

2004 29 

2005 0 

2006 0 

2007 5 

2009 30 

200!1 1 

2010 75 

2011 90 

2012 126 

2013 140 

2014 150 

2015 143 

It can be seen in the above table that in recent years the Harrison Power Station's daily ozone 

season NOx mass emissions have frequently exceeded the 35.634 ton/day value that STI 

modeling estimated had an impact of 0.71 ppb on Delaware's ambient ozone on June 18, 2011. 

The data in the above table also indicates that frequency of ozone season daily NOx mass 

emissions at this level over the last several years is similar to the number of events during the 

2002 ozone season, the last ozone season prior to installation of the SCRs. There can be no 

doubt that operation of the Harrison Power Station's coal-fired EGUs with NOx emission rates 

well in excess of the rates achievable with the installed SCRs, as shown in Graph 2, contribute 

greatly to the frequency of ozone season high NOx mass emission days. 

As of the time of preparation of this petition, preliminary AMPD data was available for the 

Harrison Power Station for May and June of 2016, the first two months of the 2016 ozone 

season. The preliminary data for May and June 2016 indicates that Harrison Power Station bad 

NOx mass emissions exceeding 35.634 tons/day on 14 days. The average NOx emission rates 

for the three Harrison Power Station coal-fired EGUs for the May and June 2016 period was 

0.1008lb/MMBTU for Unit 1, 0.2369 lb/MMBTU for Unit 2, and 0.1624 lb/MMBTU for Unit 

3. The overall station NOx emission rate for the May through June 2016 period was 0.1590. 

The Harrison Power Station's overall heat input capacity factor (based on AMPD heat input 

capacity ratings) for these 14 days ranged from 68% to 87%. This preliminary data appears to 

indicate that the Harrison Power Station SCR NOx emission control devices are still not being 

consistently operated in manner representative of good pollution control practices. 

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Short Term NOx Emission Limits Are Required To Assist in Reducing the Downwind 

Impact of Harrison Power Station NOx Emissions 

The information discussed above indicates that current and past EGU cap-and-trade NOx control 

programs, applicable to the Harrison Power Station, that were designed to limit annual and 

seasonal NOx emissions, along with the existing annual average NOx emissions rate limits, have 

not served to limit the Harrison Power Station's NOx emissions to levels such that those 

emissions do not significantly contribute to exceedances of short term air quality standards, 

thereby imperiling the public health and welfare in downwind states. The modeling performed 

by STI tends to support this conclusion by quantifYing the impact of Harrison Power Station 

NOx emissions on ozone levels measured at Delaware's monitoring locations. 

It is interesting to note that the EPA's EGU cap-and-trade NOx control programs resulted in the 

installation of SCR, the most effective commercially available NOx control technology, on the 

Harrison Power Station coal-fired EGOs. And the AMPD data indicates that in the early years of 

the cap-and-trade program, the Harrison Power Station effectively operated their SCR NOx 

controls for cap-and-trade program compliance purposes. However, changing conditions in the 

power generation industry have resulted in conditions where NOx cap-and-trade compliance 

allowances are available at prices that make it uneconomic to operate existing NOx controls, 

such as Harrison's SCRS, for cap-and-trade NOx control programs. Additional incentive is 

required to ensure that existing EGU NOx controls are consistently operated in accordance with 

good pollution control practices. 

Delaware is concerned that the NOx mass emission limits associated with CSAPR and, when 

effective, the proposed CSAPR Update will also be ineffective in properly protecting the public 

health and welfare in downwind states at all times with regards to the 8-hour ozone NAAQS. It 

is recognized that the provisions of CSAPR and the proposed CSAPR Update provide for more 

restrictive annual and seasonal NOx mass emissions than previous rules, and that the CSAPR 

and proposed CSAPR update programs also provide significantly more restrictive allowance 

trading provisions than previous rules. However, the provisions of CSAPR and CSAPR Update 

do not provide any limitations on the Harrison Power Station's NOx mass emissions for any 

period shorter than seasonal (such as hourly or daily). The lack of sufficiently stringent short 

term NOx emission rates facilitates the continued operation of the Harrison Power Station EGUs 

with inadequate NOx emission control and resulting high NOx emissions over short periods of 

time. The lack of sufficiently stringent short term emissions limitations will therefore help 

facilitate the Harrison Power Station's NOx mass emissions at levels that will continue to 

support non-compliance with the 8-hour ozone NAAQS in Delaware, and thereby continue to 

impact the health and welfare of Delaware's citizens. 

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In order to be protective of short term air quality standards, such as the 8-hour ozone NAAQS, it 

is Delaware's opinion that it will be necessary to establish emissions limits with appropriate 

magnitudes and averaging periods at the Harrison Power Station that ensure that the NOx 

emissions are adequately controlled during any particular time period. It is Delaware's opinion 

that selection of a short term NOx emission rate limit averaging period of no greater than 24 

hours is also appropriate to address the short term aspects of compliance with a short term 

NAAQS, such as the 8-hour ozone NAAQS. 

Proposed Use of Clean Coal Process at the Harrison Power Station 

Delaware is aware that Monongahela Power Company has applied to the West Virginia 

Department of Environmental Protection for a permit to install and operate a clean coal 

technology called Refined Coal at the Harrison Power Station. The proposed Refined Coal 

process for the Harrison Power Station will include the production of a refmed coal using the 

Chem-Mod Process and the combustion of that refined coal in the station's power boilers. (20) 

The West Virginia Department of Environmental Protection has prepared an Engineering 

Evaluation/Fact Sheet that addresses the technical aspects of the proposed Refined Coal 

installation at Harrison Power Station. (21) The Engineering Evaluation/Fact Sheet indicates 

that the Refined Coal process installation at the Harrison Power Station is intended, in part, to 

reduce NOx emissions. The Refined Coal process will impact the coal fuel burned for all three 

Harrison Power Station coal-fired EGUs. 

The West Virginia Engineering Evaluation/Fact Sheet indicates that in conjunction with the 

installation and operation of the Chem-Mod Refined Coal process at the Harrison Power Station, 

the operating permit will be revised for the coal fired units to include the following NOx 

emission rate limitations, including an ozone season NOx emission rate limitation: 

4.1.13.a The NOx emission rate shall not exceed 0.25 lblmmbtu on a 30 day rolling 

average; and 

4.1.13.b Beginning the 30 day period that commences May 1 and ends on May 30 and 

for each succeeding 30 day period through September 30, the NOx emission rate shall 

not exceed m0.20 lblmmbtu. 

(IJ But for the following one-time exception for Unit 2 boiler only, during the five 

(5) consecutive 30 day periods of May through September 2016, preceding and 

during a catalyst replacement: The NOx emission rate shall not exceed 0.28 

lb/mmbtu on a 30 day rolling average. 

The ozone season NOx emission rate limitation of0.20 lb/MMBTU, 30-day period average, does 

not provide the level of control necessary to ensure that the Harrison Power Station does not 

22 
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significantly impact Delaware's ambient ozone. As discussed earlier, and shown in Table 5, the 

STI modeling estimated that the Harrison Power Station's NOx emissions of 35.634 tons on June 

18, 2011 had an impact of 0.71 ppb on Delaware's ambient ozone, This level of NOx mass 

emissions from the Harrison Power Station can be easily exceeded if the three Harrison Power 

Station coal-fired steam generators are operated at full capacity, as shown in the following table. 

Table 11 

Harrison Power Station 

NOx Potential To Emit with Refined Coal Project Proposed NOx Rate Limit 

Estimated NOx Dally Estimated NOx Dally 

Potential to Emit at Permit Potential to Emit at AMPD 

Permit Heat Heat lmput Rating and 0. 20 AMPOHeat Heat lmput Rating and 

Input Rating lb/MMBTU NOx Rate Input Rating 0. 20 lb/MMBTU NOx Rate 

Unit (MMBTU/hr) (tons/day) (MMBTU/hr) (tons/day) 

1 6325 15.2 7583 18.2 

2 6325 15.2 7500 18.0 

3 6325 15.2 7700 18.5 

Total 18975 .. 45.5 22783 54.7 

As shown in the above Table 11, it is not necessary for the Harrison Power Station coal-fired 

EGUs to be operating at full load, 24-hours per day, for the facility's NOx emissions to exceed 

the 35.634 tons per day value estimated by STI to have significant impact on Delaware's ambient 

ozone. As discussed earlier, AMPD data for the three Harrison Power Station coal-fired EGUs 

lists many hours with the heat inputs well in excess of the permit heat input rating values and 

close to the AMPD heat input rating values. Therefore, it is assumed that the estimated daily 

NOx potential to emit values for the Harrison Power Station in the above Table 11 are more 

accurately represented by the values estimated using the AMPD heat input ratings. 

It can be seen in the above Table 11 that even if the NOx emissions rate limit associated with the 

Harrison Power Station's Refined Coal application (0.20 lb/MMBTU, 30-day average) was met 

on a daily basis, the Harrison Power Station has a NOx mass emissions potential to emit well in 

excess of the 35.634 tons/day value estimated by STI to have a significant impact on Delaware's 

ambient ozone. Using the 35.634 ton/day NOx mass emissions value and a daily average NOx 

emissions rate of 0.20 lb/MMBTU, it is estimated that the Harrison Power Station would reach 

the daily 35.634 ton NOx mass emissions with a daily heat input of 356,340 MMBTU. Using 

the AMPD heat input rating for the three Harrison Power Station's coal-fired EGUs, the 356,340 

MMBTU daily heat input value represents an approximate 65% daily heat input capacity factor. 

During recent ozone seasons, the Harrison Power Station has exceeded the 356,340 MMBTU 

daily heat input value numerous times, as documented in the AMPD. The following table lists 

the number of ozone season days that the Harrison Power Station has exceeded a daily heat input 

value of 356,340 MMBTU in recent years. 

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Table 12 

Harrison Power Station 

Number of Ozone Season Days 356,340 MMBTU Daily Heat Input 

Ozone Season Year 

2011 

2012 

2013 

2014 

2015 

2016. 

Number of Ozone Season Days 

Harrlon Power Station 

Exceeded 356,340 MMBTU 

16 

26 

34 

41 

39 

48 

*2016 Partial Ozone Season Data- May I through June 30 Only 

It can be seen in Table 12 above that over the last five ozone seasons (and a partial2016 ozone 

season, as of the preparation of this petition) there have been many days where the Harrison 

Power Station daily heat input exceeds the 356,340 MMBTU value, which, when combined with 

a 0.20 lb/MMBTU NOx emissions rate limit, would produce an estimated 35.630 ton/day of 

NOx mass emissions. The 35.630 ton/day NOx emissions value from the Harrison Power 

Station is that which STI estimated to have a 0.71 ppb impact on Delaware's ambient ozone on 

June 18, 2011. 

It should be noted that the proposed 0.20 lb/MMBTU emission rate limits for the Harrison Power 

Station coal-fired EGUs are based on 30-day averaging periods. A 30-day averaging period 

provides an emitting facility the flexibility to have some extended periods operating with 

emission rates in excess of the numerical limit while still attaining the 30-day average emissions 

limitation. There is no means of ensuring that such a period of operation with the NOx 

emissions rate in excess of the 30-day numerical limit does not occur during a period where 

ambient conditions are favorable for impacting downwind ozone. As discussed earlier, it is 

Delaware's opinion that in order to be protective of short term air quality standards, such as the 

8-hour ozone NAAQS, it is necessary to establish emissions limits with appropriate magnitudes 

and averaging periods to ensure that the NOx emissions are adequately controlled during any 

particular time period during the ozone season. 

It is Delaware's opinion that the proposed NOx emission rate limitation of 0.20 lb/MMBTU, 30-

day average during the ozone season, for the Harrison Power Station will not be sufficient to 

ensure that the Harrison Power Station does not significantly impact Delaware's ambient ozone. 

It is Delaware's opinion that adoption of a short term NOx emission rate limit of 0.125 

lb/MMBTU, and a NOx emission rate limit averaging period of no greater than 24 hours, will be 

24 
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required to ensure that the Harrison Power Station does not significantly impact Delaware's with 

the 8-hour ozone NAAQS. 

Requested EPA Action 

Even with extensive reduction of NOx emissions from EGU sources located in the state of 

Delaware, Delaware continues to experience exceedances of the 8-hour ozone 

NAAQS. Modeling conducted by the EPA indicates that emissions from EGUs in upwind states 

are major contributors to Delaware's ongoing 8-hour ozone NAAQS compliance 

issues. Modeling performed for Delaware by Sonoma technologies Inc, (STI) indicates that the 

Harrison Power Station, located in the upwind state of West Virginia, itself significantly impacts 

the level of ozone in Delaware's ambient air. The modeling has shown that not only can the 

Harrison Power Station significantly impact Delaware's 8-hour ozone NAAQS compliance when 

the facility is operating with high NOx mass emission rates, but can also significant impact 

Delaware's 8-hour ozone compliance when the facility is operating at greatly reduced NOx mass 

emission rates. The historic variability in Harrison Power Station's daily NOx mass emissions 

can be due to variability in operating capacity of the three coal-fired EGUs, variability in the 

operation of the coal-fired EGU's SCR NOx controls, or a combination of both. The compliance 

flexibility of applicable NOx cap-and-trade programs and relatively high, long term NOx 

emission rate limitations permit the Harrison Power Station owner/operator to make decisions 

concerning whether to operate SCR controls or not for any given ozone season or part of an 

ozone season. 

The Harrison Power Station's impact on Delaware's 8-hour ozone NAAQS compliance has 

continued even though the Harrison Power Station is equipped with some of the most effective 

NOx emission controls (SCR) and has been in compliance with its permit NOx emissions rate 

limits and applicable cap-and-trade NOx emissions control programs. These permit NOx 

emission rate limits and long term (annual, seasonal) cap-and-trade NOx control programs have 

not provided the level of short term NOx emission limits necessary to be supportive of the short 

term, 8-hour ozone NAAQS. Because the CSAPR, and proposed CSAPR Update, will continue 

to attempt to control NOx mass emissions on an annual and seasonal basis, these programs are 

also expected to permit an EGU facility such as the Harrison Power Station to emit NOx at high 

levels over any given short term basis while allowing a subject EGU facility to remain in 

compliance overall with the annual and seasonal programs. 

A facility modification for the Harrison Power Station has been proposed to install and operate a 

refined coal process to provide lower-emitting coal for combustion in the Harrison Power 

Station's coal-fired steam generators. As part of the refmed coal proposal, a permit modification 

has been proposed to apply ozone season NOx emission rate limits of 0.20 lb/MMBTU, 30-day 

average, for the three Harrison Power Station coal-fired EGUs. As discussed earlier, these 

25 
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proposed limits, if adopted, will still provide the Harrison Power Station the flexibility to emit 

NOx mass emission during an ozone season at levels that STI modeling has estimated to 

significantly impact Delaware's ambient ozone. 

In order to be protective of short term air quality standards, such as the 8-hour ozone NAAQS, it 

is Delaware's opinion that it will be necessary to establish NOx emissions limits with appropriate 

magnitudes and averaging periods that ensure that the NOx emissions are adequately controlled 

during any particular time period. Therefore, Delaware is hereby petitioning the EPA under 

§126(b) of the Clean Air Act to make a finding within 60 days of EPA's receipt of this petition 

that the Harrison Power Station, located in West Virginia, emits or would emit air pollutants in 

violation of the prohibition of § 11 O(a)(2)(D)(i) or § 126 of the Clean Air Act, and to order the 

Harrison Power Station to either comply with short term NOx emissions limitations sufficient to 

protect Delaware or to cease operating within 3 months thereafter. 

References 

1) 40 CFR Part 50, 51, 52, eta!. National Ambient Air Quality Standards for Ozone; Final 

Rule Federal Register, Vol. 80, No. 206, October 26, 

2015 htlps:l/www.gpo.gov/fdsys/pkg/FR-2015-I 0-26/pdt720 15-26594.pdf 

2) Approval and Promulgation of Air Quality Implementation Plans; Delaware; Section 

11 O(a)(2) Infrastructure Requirements for the 1997 8-Hour Ozone and the 1997 and 2006 

Fine Particulate Matter National Ambient Air Quality Standards, Federal Register No!. 

76, No. 150 /Thursday, August 4, 2011/Rules and Regulations, page 47069, 

http://www .gpo.gov/fdsys/pkg/FR-20 11-08-04/pdf/20 I L~_l969_1,ndf#page~ 1 

3) Clean Air Act, Title I - Air Pollution Prevention and Control, Part A Air Quality and 

Emissions Limitations, Section 126, http://www.epa.gov/air/caa!titlel .html 

4) Delaware Air Quality Monitoring Network, Reports, 

http :II apps.dnrcc.dela ware.gov I A irMonitorin g/ 

5) Revision to State Implementation Plan for Ozone, June 12,2012, 

http://www.dnrec.delawarc.gov/dwhs/lnfo/Regs!Documents/DE I 1 Oa2 0075 proposed. 

pdf 

6) 7 DE Admin. Code 1112, Control ofNitrogen Oxide Emissions, 

http://rcgulations.delaware.gov/ AdminCode!title7/l 000/11 00/1112.shtrnlfi.IQp00'~ 

7) 7 DE Admin. Code 1146, Electric Generating Unit (EGU) Multi-Pollutant Regulation, 

h!ID://regulatio..!J&.Qclaware.gov/ AdminCode/title7/l 000/11 00/1146.shtml#ToQ!)O'ag~ 

26 
186 


30463.154

8) 7 DE Admin. Code 1148, Control of Stationary Combustion Turbine Electric Generating 

Unit Emissions, 

http://regulations.delaware.gov/ AdminCode/title7/1 000/11 00/1148.shtml#TopQfP.!!&!! 

9) Overview of the Ozone Transport Commission (OTC) NOx Budget Program, 

http://w,..,w.epa.go_y/aimmrkets/progsregs/nox/otc-overview.html 

1 0) NOx Budget Trading Program/NOx SIP Call, 2003-2008, 

http://www.epa.gov/airmarkcts/progsregs/nox/sip.ht!nl 

II) Clean Air Interstate Rule (CAIR), http://www.epa.gov/cair/ 

12) Cross-State Air Pollution Rule (CSAPR), http://www.epa.gov/crossstatcrule/ 

13)40 CFR Parts 52, 78, and 97, Cross-State Air Pollution Rule Update for the 2008 Ozone 

NAAQS; Proposed Rules, Federal Register Vol. 80, No. 232, Thursday December 3, 

2015, https://www.gpo.gov/fdsys/pkg/FR-2Ql~:J):O:Ypdf/20 !5-29796.pdf 

14) United States Environmental Protection Agency's Air Markets Program Data (EPA's 

AMPD)- EGU emissions data extracted from the EPA's AMPD using various search 

criteria as required. http://ampd.epa.gov/ampd/QueryToolie.html 

15) United States Enviromnental Protection Agency Cross-State Air Pollution Rule, 

Technical Information and Support Documents, Air Quality Modeling Final Rule TSD, 

Contributions of the 8-hour ozone and 24-hour PM2.5 from each state to each monitoring 

site, 

http:!lwww.epa.gov/crossstaJ..~!11.kill.41:l>I~;~APR Ozonc%20and%20PM2.5 Contribution 

s.xls 

16) Technical Support Document (TSD) for the Transport Rule, Docket ID No. EP A-HQOAR-2009-0491, Analysis to Quantify Significant Contribution, 

http://www.epa.gov/crossslatcrulc/pdfs/TSD analysis to guantify significant contributi 

on 7-8-!0.pdf 

17) Ozone Impacts from Brunner Island Power Plant in 2011, Sonoma Technology Inc., 

August 6, 2015, 

https://contcnt.sicrraclub.org/coal/sites/content.sicrraclub.org.coallfiles/docs/Sonoma 8-

6-15 Brunner Memo l.pdf 

18) U.S. Energy Information Administration, http://www.eia.gov/elcctricity/data/detaildata.html 

19) West Virginia Department ofEnviromnental Protection Division of Air Quality, Permit 

to Operate, Issued to Monongahela Power Company, Harrison Power Station, R30-

03300015-2015, 

http://www.dep.wv.gov/dag/permittin~titlcvpemlits/Documcnts/June%2020J:?&1oi.!%20 

Power-%20Harrison%20Pcnnit.pdf 

20) Monongahela Power Company, Harrison Power Station, Class II Administrative Update 

and Title V Minor Modification Application, Installation of a Refined Coal Facility, 

Dated January 29, 2016 

http://www.dep. wv .gov/da!!ffi_g_<~_\!mcnts/February%2020 16%20Applications/03 3-

00015 APPL l3-2988A._pdf 

21) West Virginia Department ofEnviromnental Protection, Engineering Evaluation/Fact 

Sheet, Application Rl3-2988A, Monongahela Power Company, Dated February 12, 

2016, 

http:/ /www.dep. wv .gov/daq/Oocuments/M ay%2020 16%2QP.J;.rmits%20and%20Evals/03 3 

::.Q90liJ:iYA1. !3-2988A.pdf 

27 
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STATE OF DELAWARE 

DEPARTMENT OF NATURAL RESOURCES 

AND ENVIRONMENTAL CONTROL 

OFFICE OF THI': 

SECRETARY 

Ms. Gina McCarthy 

Administrator 

89 KINGS HIGHWAY 

DOVER, DELAWARE t9901 

November 10,2016 

United States Environmental Protection Agency 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Mail Code: !lOlA 

Washington, DC 20460 

Dear Administrator McCarthy: 

PHONE: (302) 739·9000 

FAX: (302) 739•62.42 

By this letter, the State of Delaware hereby petitions the Administrator of the 

Environmental Protection Agency (EPA) under §l26(b) of the Clean Air Act (CAA) to find that 

the Homer City Generating Station's electric generating units (EGUs), located in Indiana 

County, Pennsylvania, are emitting air pollutaots in violation of the provisions of Section 

l!O(a)(2)(D)(i) of the CAA with respect to the 2008 0.075 ppm ozone NAAQS and the 2015 8-

hour 0.070 ppm ozone NAAQS. 

Section !I O(a)(2)(D)(i) prohibits any source or other type of emissions activity within a 

State, "from emitting aoy air pollutaot in amounts which will contribute significantly to 

nonattainment in, or interfere with maintenance by, any other State with respect to any such 

national primary or secondary ambient air quality standard." Section l26(b) of the CAA 

provides that, "[a]ny State or political subdivision may petition the Administrator for a finding 

that any major source or group of stationary sources emits or would emit any air pollutaot in 

violation of the prohibition of Section 110(a)(2)(D)(ii) or this section." 

I am aware of EPA efforts that are underway to address transported emissions, to include 

the recent finalization of the update to the Cross State Air Pollution Rule (CSAPR), planned 

future efforts beyond the CSAPR Update Rule that will be necessary to fully address interstate 

transport for the 2008 ozone NAAQS and for the recent 2015 ozone NAAQS, and federal Tier 3 

vehicle emissions and fuel standards measures to reduce NOx emissions. While helpful these 

efforts are not adequate to mitigate the impacts of upwind emissions on Delaware's air quality 
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Ms. Gina McCarthy 

November 2, 2016 

Page Two 

and are tangent to the CAA Section I 26 process. EPA has effectively closed the door to CAA 

tools designed to bring clean air to Delaware by establishing nonattainmenl area boundaries that 

effectively penalize areas like Delaware rather than apply the CAA to the emissions that cause 

our unhealthy air, by failing to act on a CAA 176 petition in the timing mandated by the CAA, 

by extending CAA attainment Limefrarnes rather than bumping up areas and promulgating 

required federal implementation plans. From a downwind perspective EPA has lost sight of the 

CAA mandate that requires attainment "as expeditiously as practicable and no later than .... " 

CAA Section 126(b) requires that within 60 days after receipt of any petition and after 

public hearing, the Administrator shall make such a finding or deny the petition. We look 

forward to working with you and your staff during this period in which you make your finding 

regarding this petition and take the required actions to protect the health and welfare of 

Delaware's citizens. Please do not hesitate to contact me if you have any questions or need 

additional information regarding this petition. 

CC: Jack Markell, Governor, 

State of Delaware 

Ali Mirzakhalili, Director 

1J;II~_ David~ Secretary 

Department of Natural Resources and Environmental Control 

Administrator Shawn M. Garvin 

US EPA Region III Office 

Krishnan Ramamurthy, Director 

Pennsylvania Department of Environmental Protection 
189 


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Attachment 1 

Delaware CAA 126 Petition 

Homer City Generating Station 

The State of Delaware submits this petition for a finding under § 126(b) of the Clean Air Act that 

the Homer City Generating Station's electric generating units (EGUs), located in Indiana 

County, Pennsylvania, significantly contribute to Delaware's non-attainment of the 2008 8-hour 

ozone national ambient air quality standard (NAAQS) of 0.075 ppm and the latest 8-hour ozone 

NAAQS of0.070 ppm adopted by the United States Environmental Protection Agency (EPA) on 

October 26,2015. (1) 

Delaware has complied with the requirements of§ 11 O(a)(2)(D)(i)(I) of the CAA by adopting instate control measures for the prevention of emissions that would significantly contribute to nonattainment, or interfere with maintenance, of the ozone National Ambient Air Quality Standard 

(NAAQS) in a downwind area. (2) However, Delaware's ability to achieve and maintain healthbased air quality standards for its own residents is severely impacted by sources outside of the 

state of Delaware. This is due to the fact that more than 94% of the ozone levels in Delaware are 

created by the transport of air pollutants from upwind areas. Attainment and maintenance of the 

2008 and 2015 8-hour ozone NAAQSs in Delaware is possible only through additional emission 

reductions in the upwind states that significantly contribute to non-attainment and maintenance 

in Delaware. 

Section 126(b) of the CAA provides that, "[a]ny State or political subdivision may petition the 

Administrator for a finding that any major source or group of stationary sources emits or would 

emit any air pollutant in violation of the prohibition of Section 110(a)(2)(D)(i) or this section." 

In accordance with § 126(b) of the Clean Air Act, the state of Delaware petitions the 

Administrator of the EPA to establish a timely schedule for the above-referenced Homer City 

Generating Station electric generating facility and the state of Pennsylvania to put those entities 

in compliance with §IIO(a)(2)(D)(i) of the Clean Air Act with respect to the 2008 8-hour O.o75 

ppm ozone NAAQS and 2015 8-hour 0.070 ppm ozone NAAQS. (3) 

Background 

The EPA began to address air quality issues related to ambient ozone through establishment of a 

related National Ambient Air Quality Standard in 1971. In 1997 the EPA first established the 8-

hour ozone NAAQS to protect human health and welfare at a level of 0.08 ppm. The EPA 
190 


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subsequently lowered the 8-hour ozone NAAQS to 0.075 ppm in 2008. After further evaluation, 

the EPA further lowered the 8-hour ozone standard to 0.070 ppm on October 26, 2015. (1) 

The establishment of the short term ozone standard (8-hour NAAQS) was necessary to address 

the potential health impact of short term exposure to high levels of ozone. Short term exposure to 

ozone can cause rapid, shallow breathing and related airway irritation, coughing, wheezing, 

shortness of breath, and exacerbation of asthma, particularly in sensitive individuals and 

asthmatic children. Short term exposure also suppresses the immune system, decreasing the 

effectiveness of bodily defenses against bacterial infections. Research studies indicate that 

markers of cell damage increase with ozone exposure. Some studies suggest that there is a link 

between ozone exposure and premature death of adults and infant death. Other studies indicate a 

link between ozone and premature birth and adverse birth outcome, cardiovascular defects, and 

adverse changes in lung structure development in children. Children, the elderly, those with 

chronic lung disease, and asthmatics are especially susceptible to the pulmonary effects of ozone 

exposure. Additionally, studies have shown that ozone can adversely affects trees and vegetation, 

can cause reduced crop yields, and can contribute to nitrification of bodies of water. 

Atmospheric ground level ozone that is harmful to human health and welfare is formed primarily 

by the chemical reaction of nitrogen oxides (NOx) with volatile organic compounds (VOC's) in 

the presence of heat and sunlight. Dry, hot, sunny days are most conducive to the formation of 

ozone. Because ground level ozone concentrations are highest when sunlight is the most intense, 

in the eastern United States the warm summer months (May 1 through September 30) are 

referred to as the ozone season. Weather also affects ozone concentrations and how quickly it is 

transported and dispersed. Periods of light winds allow ozone and ozone precursor pollutants to 

build up in any particular area leading to greater concentrations. However, the wind can also be 

responsible for transporting the ozone and ozone precursors over long distances downwind. This 

downwind pollutant transport can then combine with more local emissions to contribute to 

exceeding the ozone NAAQS in any particular location. 

Delaware has experienced a number of exceedances of the health based 8-hr ozone NAAQS. 

(4) The following table identifies the number of 8-hour ozone NAAQS exceedances experienced 

in Delaware during the ozone seasons for the years 2000 through 2016: 
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Table 1 

Actual Delaware Ozone Exceedances - 8-Hour NAAQS 

New Castle County· Kent County • Sussex County - Total No. of 

No. of Days of No. of Days of No. of Days of Days of 

Exceedance Exceedance Exceedance Exceedance 

2016 Ozone Season *It 10 2 3 11 

2015 Ozone Season •• 2 0 0 2 

2014 Ozone Season** 3 0 3 

2013 Ozone Season** 1 1 2 

2012 Ozone Season** 13 14 12 19 

2011 Ozone Season ** 11 3 6 15 

2010 Ozone season •• 14 5 9 18 

2009 Ozone Season •• 3 0 3 

2008 Ozone Season** 9 8 8 14 

2007 Ozone Season ••• 5 0 

2006 Ozone Season ••• 2 4 3 6 

2005 Ozone season*** s 2 8 16 

2004 Ozone Season ••• 3 2 5 

*= 0.070 ppm Standard **= 0.075 ppm Standard ***= 0.08 ppm Standard 

# = Preliminary Data 

On October I, 2015, the EPA strengthened the 8-hour ozone NAAQS to 70 ppb based upon 

scientific evidence of ground level ozone's negative effect on public health and welfare. 

Relative to the 2008 8-hour ozone standard, the updated 8-hour ozone NAAQS is expected to 

further improve public health protection, particularly for at-risk groups, and also improve the 

health of trees, plants, and ecosystem. If the 2015 8-hour ozone standard of 70 ppb had been in 

effect for the past several years, based upon monitoring data, it is estimated that Delaware would 

have experienced a higher number of 8-hour owne exceedances compared to the actual 

exceedances of the 2008 8-hour ozone standard of 75 ppb. The following table provides a 

comparison of the actual 8-hour ozone NAAQS exceedances and the estimated exceedance that 

would have occurred if the 70 ppb standard had been in effect: 
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Table2 

Comparison of Actual vs Estimated Days of Ozone Exceedance 

2008 8-hour Ozone NAAQS vs 2015 8-hour Ozone NAAQS 

Actual Number Actual Number Estimated Number of Estimated Number of 

of Days of 75 of Monitor-Days Days of Ozone Monitor-Days of 

ppb Ozone of 75 ppb Ozone Standard Exceedance Ozone Standard 

Ozone Standard Standard Assuming 70 ppb Exceedance Assuming 

Season Exceed a nee Exceedance Standard 70 ppb Standard 

2010 18 28 36 91 

2011 15 20 25 73 

2012 19 39 28 107 

2013 2 6 7 

2014 3 3 8 17 

2015 2 10 16 

2016 6 17 u• 34* 

•2015 8-hour ozone NAAQS limit of70ppb in effect, actual exceedances shown (preliminary date) 

It can be seen in the above table that if the more stringent 2015 8-hour ozone NAAQS of 70 ppb 

were in effect during the 2010 through 2015 ozone seasons that Delaware would have exceeded 

that standard at a much higher rate than it experienced under the 2008 8-hour ozone NAAQS of 

75 ppb. As shown in the above table, for the 2010 through 2015 ozone season, the number of 8-

hour ozone NAAQS exceedance day would increase from 59 days under the 2008 NAAQS to 

113 days under the 2015 NAAQS. It can also be seen in the above table that Delaware continued 

to experience exceedances of the 2008 8-hour ozone NAAQS, as well as exceedances of the 

2015 8-hour ozone NAAQS, during the 2016 ozone season. 

As discussed earlier, NOx is a precursor pollutant to the formation of atmospheric ozone. NOx 

is a generic term for a group of reactive gasses that are composed of nitrogen and various 

amounts of oxygen (including nitrogen oxide and nitrogen dioxide). NOx is formed in the 

combustion process as a result of high temperature chemical reactions of the nitrogen contained 

in the fuel and the nitrogen contained in the ambient combustion air along with oxygen in the 

combustion air. Fossil fuel-fired electric generating units are some of the largest emitters of 

NOx, with EGUs powered by coal-fired steam generators without NOx emissions controls 

exhibiting some of the highest NOx emission rates (in terms oflb/MMBTU). 

Uncontrolled, higher nitrogen content fuels, such as coal and residual fuel oil, tend to result in 

higher NOx emissions than lower nitrogen content fuels (such as natural gas). Various 

combustion configurations tend to result in varying NOx emission rates (in terms of pounds of 

NOx emitted per million BTU of fuel heat input (lb/MMBTU)) due to amounts of excess air 

required for combustion, rate of fuel combustion, combustor geometry, peak combustion 

temperatures, and duration of combustion gasses at peak temperatures, etc. Combustion 
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30463.161

controls, such as low NOx burners and overfire air, are commercially available NOx reduction 

technologies adaptable and applicable to most EGU combustion systems. Post combustion NOx 

controls, such as selective non-catalytic reduction (SNCR) and selective catalytic reduction 

(SCR), are commercially available highly effective NOx reduction technologies that are 

applicable to most EGU exhaust gas streams. These NOx controls are generally available for 

both new EGU installations and for retrofit on existing EGUs. Utilization of combustion 

controls and post combustion controls, singly or layered together for a single EGU, can result in 

significant reductions in the EGUs NOx emissions rate, greater than 90% reduction from 

uncontrolled levels for some EGUs. 

To address the NOx emissions from EGU sources located in the state of Delaware, Delaware has 

promulgated a number of rules and regulations that effectively control the NOx emissions from 

these EGUs which also fulfils Delaware's obligation under §I10(a)(2)(D)(i)(I) of the Clean Air 

Act. These rules and regulations have been previously submitted to the EPA in Delaware's June 

2007 and subsequent state implementation plan (SIP) revisions, including the June 2012 revision. 

(5) The referenced rules and regulations include the following: 

7 DE Admin Code 1112, Control of Nitrogen Oxide Emissions, which set RACT-based NOx 

emission rate standards for major stationary sources, including EGUs. (6) 

7 DE Admin Code 1146, Electric Generating Unit (EGU) Multi-Pollutant Regulation, which 

included short term NOx emission rate limits (lb!MMBTU on rolling 24-hour average) and 

annual NOx mass emissions caps for coal-fired and residual oil-fired EGUs. (7) 

7 DE Admin Code 1148. Control of Stationary Combustion Turbine Electric Generating 

Unit Emissions, which set NOx emission mte limits or approved NOx control technology 

requirements (such as water injection) for combustion turbines with a nameplate rating of 1 

MW or greater that had not previously controlled their NOx emissions rate in accordance 

with the NOx RACT requirements of7 DE Admin Code 1112. (8) 

In addition to the NOx control regulations noted above, Delaware has participated in regional 

and federal initiatives, where applicable, that were designed to limit the NOx emissions from 

EGU sources whose NOx emissions may impact compliance with ozone standards in downwind 

states. These regional and feder-<tl initiatives include the following: 

The Ozone Transport Commission (OTC) NOx Budget Program. (9) In 1990, the OTC was 

created by amendments to the Clean Air Act. The OTC consisted of northeast and midAtlantic states with persistent summertime ozone problems. These OTC states include 

Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New 

Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and portions of 

Virginia. The OTC was tasked with advising the EPA on ozone transport issues and for 
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helping to develop and implement regional solutions to ozone problem experienced by the 

member states. Recognizing that the interstate transport of pollutants to downwind states 

contributed to summertime ozone problems in those downwind states, the OTC created and 

implemented its NOx Budget Program. The NOx Budget Program was a cap-and-trade 

program to limit the total regional emission of NOx from fossil-fueled electric generating 

units and large boilers located in OTC states, and became effective in 1999. Cap and trade 

programs effectively reduce the total amount of emissions, usually for a geographic area, by 

placing a cap on the total emissions occurring in that geographic area without setting unit by 

unit limits. For the OTC NOx Budget Program, affected states were allocated a NOx 

emissions cap for the subject NOx emitting sources in the respective state, and the subject 

units were required to hold and surrender a NOx allowance for each ton of NOx emitted in 

order to comply with program requirements. This program did not include any unit specific 

NOx emissions rate requirements. The OTC NOx Budget Program effectively ended when 

the EPA began administering the EPA's NOx Budget Trading Program. 

The EPA NOx State Implementation Plan (SIP) Rule. (10) In 2003 the EPA implemented its 

NOx State Implementation Plan (SIP) Rule utilizing the NOx Budget Trading Program, a 

NOx emissions cap and trade program similar to that used for the OTC NOx Budget 

Program. Relative to the OTC NOx Budget Program, the EPA's NOx Budget Trading 

Program was expanded to include additional states (for a total of 20 states and also the 

District of Columbia) and established more stringent NOx emissions allowance 

allocations. The EPA's NOx State Implementation Plan (SIP) Rule was intended to reduce 

the regional transport of ozone and ozone-forming pollutants in the Eastern United 

States. The NOx State Implementation Plan (SIP) Rule was in place until 2009, when it was 

replaced by the EPA's Clean Air Interstate Rule (CAIR). 

The EPA Clean Air Interstate Rule (CAIR). (11) In 2005, the EPA promulgated its CAIR 

program that required states to reduce the emissions of S02 and NOx to help meet health 

based air quality standards for fine particulate matter and ozone. The EPA indicated in the 

proposal for the CAIR that NOx and S02 emissions in 23 states and the District of Columbia 

contributed to unhealthy levels of fine particulate matter in downwind states, and that the 

NOx emissions from 25 states and the District of Columbia contributed to unhealthy levels 

of 8-hour ozone in downwind states. EPA indicated that the reduction of S02 and NOx 

emissions from EGU s would serve to reduce the interstate transport of pollutants related to 

these emissions. CAIR established a cap-and-trade program covering EGUs to limit the 

emissions of S02 and NOx from these sources as an option for compliance with the 

reduction requirements. (All states subject to the CAIR selected this compliance 

option.) S02 and NOx emissions mass caps were established for individual states and 

allowances were issued by the EPA to cover those allowable emissions from subject 

sources. The cap-and-trade program was intended by the EPA to provide subject sources 
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flexibility in meeting the mass emissions limitations through the installation of controls, fuel 

switching, or trading/purchase of excess allowances from other subject sources. The NOx 

emissions limitations of CAIR became effective in 2009, and the S02 emissions limitation 

of CAIR became effective in 2010. The EPA made a number of changes to the CAIR 

subsequent to its original proposal, the most notable was the establishment of a process to 

provide for EPA to establish CAIR Federal Implementation Plans (FIPS) for states that 

failed to timely establish state plans for the implementation of CAIR. This ensured that the 

controls of the cap-and-trade program were uniformly established in all subject states on a 

timely basis. 

The EPA Cross-State Air Pollution Rule (CSAPR). (12) Subsequent to the promulgation of 

CAIR, legal actions lead the US Court of Appeals for the DC Circuit to make the decision in 

2008 to remand the CAIR back to the EPA to make the rule more consistent with the 

requirements of the Clean Air Act. However, the courts left the requirements of CAIR in 

place until the EPA finalized a replacement rule. In response, the EPA promulgated its 

Cross-State Air Pollution Rule (CSAPR) in 2011. Additionally, in conjunction with the rule 

the EPA established federal implementation plans (FIPS) for each state subject to the 

CSAPR in order to implement the rule as rapidly as possible. In the rulemaking process the 

EPA identified for subject states what portions of each state's emissions significantly 

contributed to ozone or PM2.5 pollution in downwind states. The CSAPR established mass 

emissions limitations of S02 and NOx from power plants in subject states to eliminate the 

portion of those emissions that are significant contributions to non-attainment or 

maintenance of fine particulate matter and ozone air quality standards in downwind 

states. The CSAPR established annual mass emissions limitations for S02 and NOx and 

additional ozone season NOx mass emissions limitations for NOx. Between the original 

CSAPR and subsequent actions, there were 26 states subject to the ozone season NOx mass 

emissions limitations to address the 1997 Ozone NAAQS, 18 states were subject to annual 

S02 and NOx mass emissions limitations of the rule to address the 1997 Annual PM2.5 

NAAQS, and 21 states were subject to annual S02 and NOx mass emissions limitations to 

address the 2006 24-hr PM2.5 NAAQS (a combined total of23 states for addressing the two 

PM2.5 NAAQS). Relative to previous mass-based emissions rules, the CSAPR significantly 

restricted the trading of allowances that could be utilized for compliance purposes by 

establishing state variability limits that ensure that a state's actual mass emissions would 

fulfill its Clean Air Act "good neighbor" obligations. The EPA determined that Delaware 

was not required to participate in CSAPR. 

In 2012 the CSAPR was challenged in court, and the US Court of Appeals for the DC 

Circuit vacated the CSAPR and the implementing FIPs. The Court remanded the rule to the 

EPA to address the Courts findings, and directed the EPA to continue administering CAIR 
196 


30463.164

pending the promulgation of a valid rule to replace CAIR. As of this ruling, CAIR cap-andtrade programs for annual S02, annual NOx, and ozone season NOx remained in place. (12) 

In April of 2014 the US Supreme Court reversed the DC Circuit court's opinion vacating 

CSAPR. In June of2014 the EPA filed a motion with the U.S. Court of Appeals for the DC 

Circuit to lift the stay of the CSAPR, and in October of 2014 the Court of Appeals for the 

DC Circuit granted the EPA's motion. In November of 2014 the EPA issued a ministerial 

rule that aligned the dates in the CSAPR rule text with the revised court-ordered schedule, 

including 2015 Phase 1 CSAPR implementation and 2017 Phase 2 CSAPR implementation. 

(12) 

In November of 2015 the EPA proposed an update to the CSAPR by issuing the proposed 

CSAPR Update Rule. (13) Starting in 2017, this proposal would reduce summertime 

nitrogen oxides (NOx) emissions from power plants in 23 eastern states, by establishing 

NOx mass emission caps, in order to reduce the impact of those power plant emissions on 

downwind states. In its proposal, the EPA requested comments regarding the potential 

application of short term NOx emission limits on these same power plants. The EPA 

determined that Delaware was not required to participate in the CSAPR Update. 

On September 7 of 2016 the EPA finalized the update to the CSAPR by issuing the CrossState Air Pollution Rule Update for the 2008 Ozone NAAQS, Final Rule. (14) The CSAPR 

Update Rule addresses the ozone season (May- September) transport of ozone pollution in 

the eastern United States that crosses state lines to help downwind states and communities 

meet and maintain the 2008 ozone national ambient air quality standard (NAAQS). Starting 

in May 2017, this final rule puts in place NOx emissions caps that will provide additional 

reductions of ozone season NOx emissions from power plants in 22 states in the eastern 

United States. 

These State and regional NOx reduction efforts have resulted in significant NOx emissions 

reductions from EGUs located in the state of Delaware. These reductions have occurred both in 

terms of ozone season NOx mass emissions (tons) and also in average ozone season NOx 

emissions rates (lb/MMBTU). The following table was assembled with data extracted from the 

United States Environmental Protection Agency's Air Markets Program Data (EPA's 

AMPD). (15) The table shows the ozone season NOx mass emissions (tons) and average NOx 

emissions rate (lb/MMBTU) for the EGU fleet located in the state of Delaware: 
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Table3 

2000-2016 Ozone Seasons 

State of Delaware 

Total EGU NOx Mass Emissions and Average NOx Emission Rate 

Change in NOx Avereage NOx Change in 

Ozone Total EGU Mass Emissions Average NOx 

Season OSNOX Emissions Rate Emission Rate 

Year (tons) from 2000 (%) (lb/MMBTU) (%) 

2000 4137 0.0 0.2784 0.0 

2001 4777 15.5 0.2806 0.8 

2002 4609 11.4 0.2415 -13.3 

2003 3850 -6.9 0.2374 ·14.7 

2004 3659 ·11.6 0.2449 -12.0 

2005 5175 25.1 0.2818 1.2 

2006 3567 -13.8 0.2582 -7.3 

2007 4179 1.0 0.2398 -13.9 

2008 3190 -22.9 0.2277 ·18.2 

2009 1280 ·69.1 0.1695 -39.1 

2010 2265 -45.3 0.1484 -46.7 

2011 1879 -54.6 0.1250 -55.1 

2012 1054 -74.5 0.0585 ·79.0 

2013 879 -78,7 0.0589 -78.9 

2014 668 ·83.9 0.0483 ·82.7 

2015 635 ·84.6 0.0480 -82.8 

2016. 613 ·85.2 0.0396 ·85.8 

* Preliminary AMPD Data 

However, relatively long term NOx mass emission caps (such as annual or seasonal caps) have 

limited impact on the short term NOx emissions (such a 24-hour period) from EGUs that have a 

more direct impact on compliance with short term air quality standards, such as the 8-hour ozone 

NAAQS. To address this issue, Delaware's air quality regulations have included short term NOx 

emission rate limits (with 24-hour averaging periods) that are protective of the short term ozone 

NAAQS. These short term NOx emission rate limits have helped Delaware achieve significant 

reductions in ozone season peak daily NOx mass emissions from Delaware's EGUs. 
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Graph l 

Delaware Total EGU Ozone Season Peak Day NOx Mass 

Emissions 

I 2000 200120022003 2004 2005200620072008 2009 2010 2011 2012 2013 2014 2015 • 2016 

Ozone Season Year 

It can be seen in the above Graph I that between the 2000 and 2016 ozone seasons, the 

Delaware's EGUs have achieved a NOx mass emissions reduction (for ozone season peak NOx 

mass emissions days) in excess of80% reduction. This reduction in peak ozone season day NOx 

mass emissions provides benefit in attaining compliance with the 8-hour ozone NAAQS for both 

Delaware's citizens and downwind populations. 

Even though Delaware has significantly reduced the NOx emissions from EGUs located in 

Delaware, as discussed above, Delaware continues to experience exceedances of the 8-hour 

ozone NAAQS. Pollutants transported from facilities in upwind states are significant 

contributors to Delaware's continuing issues in meeting the 8-hour ozone NAAQS. 

Modeling Identifies Impact of Upwind NOx Emissions Impacting Delaware's 8-hour 

Ozone NAAQS Compliance 

The US EPA performed modeling as part of the development of its Cross-State Air Pollution 

Rule in order to help determine the impact of transported pollutants on downwind states and 

those states' ability to attain and maintain the then current 2008 ozone NAAQS of75ppb. Some 

results of the modeling that identify state contributions to ozone at individual monitoring 

locations can be found on the spreadsheet titled "Contributions of 8-hour ozone, annual PM2.5, 

and 24-hour PM2.5 from each state to each monitoring site" located in the "Technical 

Information and Support Documents" section of the US EPS's Cross-State Air Pollution Rule 

(CSAPR) website. (16) 
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The US EPA's modeling identified 13 individual states (in addition to Delaware itself) whose 

NOx emissions significantly impact the ability of Delaware to attain and maintain the then 

current 8-hr ozone standard of75 ppb. (17) (A state significantly impacts another state if it 

impacts that state's air quality by I% or more of the applicable air quality standard. For the then 

current 8-hr ozone standard of75 ppb, a significant contribution was 0.75 ppb or greater.) The 

states identified by the US EPA as significantly impacting Delaware's air quality, and the 

modeling results quantifying each state's impact, are shown in the following table: 

Table 4 

States Significantly Impacting Compliance with the 8-hour 

Ozone Standard in Delaware and the Magnitude of that Impact 

Maximum 

Contribution 

State (ppb) 

CT 1.008 

DE 6.256 

IL 1.445 

IN 1. 737 

KY 3.208 

MD 23.951 

Ml 2.207 

NJ 13.034 

NY 9.092 

OH 3.987 

PA 13.344 

TN 1.932 

VA 6.039 

wv 3.142 

The EPA's modeling results, summarized in the above table, indicate that four states (Maryland, 

New Jersey, New York, and Pennsylvania) have greater impact on compliance of the 8-hour 

ozone standard in Delaware than the impact of Delaware itself. The EPA's modeling results 

summarized in the above table also indicate that three states (Kentucky, Ohio, and West 

Virginia) individually have an impact on compliance of the 8-hour ozone standard in Delaware 

of 50% of the impact that Delaware impacts itself. These modeling results tend to confirm that 

pollutant transport is a significant issue for the state of Delaware, and they also help explain 

Delaware's ongoing difficulties with the 8-hour ozone standard despite the significant actions 

Delaware has implemented to reduce NOx and VOC emissions in Delaware. 
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Pennsylvania's Homer City Generating Station's Impact on Delaware's 8-hour Ozone 

NAAQS Compliance 

As noted in Table 4 above, the EPA's modeling indicated that the state of Pennsylvania 

significantly impacts Delaware's compliance with the 8-hour ozone NAAQS. Because of the 

magnitude of Pennsylvania's impact on Delaware's compliance with the 8-hour ozone standard, 

and the potential contribution to this impact by EGUs located in Pennsylvania, further modeling 

was performed to determine if individual Pennsylvania EGU facilities individually have a 

significant impact on Delaware's compliance with the 8-hour ozone standard. 

In order to help Delaware assess the impact of upwind EGU facility NOx emissions on 

Delaware's 8-hour average ozone exceedances in 2011, Sonoma Technologies Inc. (STI) 

conducted air quality modeling using the Comprehensive Air Quality Model with extensions 

(CAMx) Ozone Source Apportionment Technology (OSAT) (18). The 2011 ozone season 

modeling was performed to determine 8-hour average ozone apportionments from individual 

upwind EGU facilities and upwind groups of EGU facilities. The modeling identified that a 

number of EGU facilities located in the state of Pennsylvania individually had significantly 

impacted Delaware's compliance with the 8-hour ozone NAAQS during the 2011 ozone 

season. The identified EGU facilities significantly impacting Delaware's ambient air quality 

included Pennsylvania's Homer City Generating Station. 

Because of the magnitude of its impact on Delaware's ambient ozone, the Homer City 

Generating Station is being individually addressed in this petition for a finding under §126(b) of 

the Clean Air Act. 

The STI modeling results indicated that the Homer City Generating Station, located in Indiana 

County, Pennsylvania, emitted NOx during the 2011 ozone season at levels to individually have 

a significant impact on Delaware's ambient air quality on July 18, 2011. The following table 

shows the STl modeling estimated impact of Homer City Generating Station's NOx emissions 

on Delaware's ambient ozone on July 18,2011: 

TableS 

Homer City Generating Station 

STI Modeling Estimated Impact on Delaware Air Monitors 

July 18, 2011 

Delaware Air Monitoring Location STI Modeling Estimated Impact (ppb) 

Brandywine 0.94 

Bellefonte 0.82 

MLK 0.82 
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As shown in the above Table 5, the STI modeling estimated that on July 18,2011 the Homer 

City Generation Station NOx emissions had a significant impact on Delaware's ambient ozone 

relative to both the 2008 8-hour ozone NAAQS of0.075 ppm and the 2015 8-hour ozone 

NAAQS of 0.070 ppm. As shown in the table, the highest STI modeling ambient ozone impact 

was 0.94 ppb. 

A review of the Homer City Generating Station's emissions data in the AMPD indicates that on 

July 18,2011, the Homer City Generating Station emitted 38.153 tons ofNOx. The review of 

the AMPD data indicates that over the past few years that the Homer City Generating Station's 

ozone season daily NOx mass emissions have frequently exceeded the 38.153 ton/day value. 

The following table indicates the number of ozone season days that Homer City Generating 

Station exceeded the 38.153 ton/day value. 

Table6 

Homer City Generating Station 

Ozone Season Days With NOx Mass Emissions Greater Than 38.153 tons/day 

ozone Season Days with NOx 

Mass Emissions Greater Than 

ozone Season Year 38.153 tons/day 

2011 17 

2012 25 

2013 124 

2014 126 

2015 101 

2016* 48 

*AMPD Preliminary Data 

It can be seen in Table 6 that during recent ozone seasons there have been a number of days 

where the Homer City Generating Station has emitted NOx mass in excess of38.153 tons/day, 

the value that was shown by the STI modeling to have had significant impact on Delaware's 

ambient ozone on July 18, 2011. While weather patterns impact the frequency and magnitude 

that the Homer City Generating Station's NOx emissions affect Delaware's air quality, the data 

provides an indication that the NOx emissions from the Homer City Generating Station have 

historically been at levels sufficient to have a significant impact. 

Homer City Generating Station 

The Homer City Generating Station is located in Indiana County, Pennsylvania. The Energy 

Information Administration (EIA) database indicates that the Homer Generating Station includes 

three coal fired steam electric generating units. (19) The following table provides some technical 

information regarding the Homer City Generating Station's coal-fired electric generating units: 
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Table 7 

Homer City Generating Station's Electric Generating Units 

EIA EIAComercial AMPD Heat Input 

Nameplate Operation EIAPrlmary Rating AMPD Listed NOx 

Rating(MW) Year Fuel (MMBTU/hr) Controls 

Unit 1 660 1969 Bit Coal 6792 LNB OFA SCR 

Unlt2 660 1969 Bit Coal 6792 LNB OFA SCR 

Unit 3 692 1977 Bit Coal 7260 LNB OFA SCR 

The Homer City Generating Station Units I and 2 incorporate supercritical Foster Wheeler steam 

generators, and Unit J incorporates a Babcock & Wilcox subcritical steam generator. All three 

steam generators fire bituminous coal as their primary fuel, with EIA information indicating that 

the bituminous coal fuel has historically come from Pennsylvania sources. 

The Homer City Generating Station is contractually operated, maintained, and managed by NRG 

Energy. The Homer City Generating Station operates as an independent power producer and 

provides capacity, energy, and energy related services to the PJM regional transmission 

organization (RTO). The Homer City Generating Station also has the ability to sell energy into 

the NY ISO RTO under certain restrictions. 

Homer City Generating Station NOx Emissions Limitations and Performance 

As noted in Table 7 above, the Homer City Generating Station Units I, 2, and 3 are currently 

equipped with low NOx burners (LNBs), overfire air (OFA), and selective catalytic reduction 

systems (SCR) for control of NOx emissions. The LNBs and OFA NOx combustion controls 

were installed on the Homer City Generating Station EGUs in the mid-!990s for compliance 

with the state of Pennsylvania's NOx RACT requirements. In accordance with Pennsylvania's 

previous NOx RACT requirements (see discussion of Pennsylvania's 2016 revision to its NOx 

RACT regulation requirement below), the Homer City Generating Station EGU's were subject to 

NOx emission rate limits of 0.50 lb/MMBTU, on a 30-day rolling average. AMPD data 

indicates that the Homer City Generating Station EGUs have consistently been in compliance 

with these NOx RACT limits. 

Also as indicated in Table 7 above, Homer City Generating Station Units I, 2, and J are all 

equipped with SCR for NOx emissions control. AMPD data indicates that the SCRs for Unit I 

and Unit 3 were installed in 2001, and the SCR for Unit 2 was installed in 2000. The SCRs were 

installed to assist in compliance with the seasonal NOx emissions limitations and requirements 

of the Ozone Transport Commission's (OTC) NOx Budget Program and the subsequent EPA 

NOx State Implementation Plan (SIP) Rule and its associated NOx Budget Trading Program. 
203 


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Pennsylvania has recently finalized a reviSion to its NOx RACT regulation, Title 25. 

Environmental Protection! Part l Department of Environmental Protection! Subpart C. 

Protection of Natural Resources, Article Ill Air Resources/ Chapter 129. Standards for Sources, 

Additional RACT Requirements for Major Sources of NOx and VOCs. (20) The revisions to 

Pennsylvania's NOx RACT regulation become effective in 2017. The revision to Pennsylvania's 

NOx RACT regulation revises the NOx RACT provisions that are applicable to the Homer City 

Generating Station Units 1, 2, and 3. 

The steam generators associated with Homer City Generating Station Units 1, 2, and 3 are all 

coal-fueled, wall-fired combustion units with heat input ratings of greater than 250 MMBTU!hr 

and are all equipped with SCR NOx emission controls. In accordance with the requirements of 

§129.97 of the revised Pennsylvania NOx RACT regulation, the presumptive NOx RACT 

emission rate limitation for Homer City Generating Station's coal-fired EGUs, with a SCR 

system flue gas inlet temperature equal to or greater than 600°F, is 0.12 lb!MMBTU, and 

compliance with this limit is also required in the event of SCR system by-pass, as follows: 

§129.97(g)(viii) For a coal-fired combustion unit with a selective catalytic reduction system 

operating with an inlet temperature equal to or greater than 600°F, 0.12 lb NO/million Btu 

heat input. Compliance with this emission limit is also required when by-passing the selective 

catalytic reduction system. 

Additionally, under § 129.98 of the revised Pennsylvania NOx RACT regulation, the owner or 

operator of a major NOx emitting facility subject to the regulation with at least one air 

contamination source subject to a NOx RACT emission limitation in §129.97 of the regulation 

that can not meet the applicable limitation may elect to meet the limitation by averaging NOx 

emissions on either a facility-wide or system wide basis using a 30-day rolling average. The 

regulation requires that system-wide averaging must be among sources under the common 

control of the same owner or operator within the same ozone non-attainment area of 

Pennsylvania. 

§!29.98(a) The owner or operator of a major NOx emitting facility subject to § 129.96 

(relating to applicability) that includes at least one air contamination source subject to a NOx 

RACT emission limitation in§ 129.97 (relating to presumptive RACT requirements, RACT 

emission limitations and petition for alternative compliance schedule) that cannot meet the 

applicable NOx RACT emission limitation may elect to meet the applicable NOx RACT 

emission limitation in § 129.97 by averaging NO. emissions on either a facility-wide or 

system-wide basis using a 30-day rolling average. System-wide emissions averaging must be 

among sources under common control of the same owner or operator within the same ozone 

nonattainment area in this Commonwealth 

Compliance with the averaging provisions of the revised Pennsylvania NOx RACT regulation is 

determined as follows: 
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§129.98(e) The owner or operator shall calculate the alternative facility-wide or system-wide 

NOx RACT emissions limitation using a 30-day rolling average for the air contamination 

sources included in the application for the operating permit modification or plan approval, if 

otherwise required, submitted under subsection (b) by using the following equation to sum the 

emissions for all of the sources included in the NO, emissions averaging plan: 

Where: 

Eia,1ual = The actual NO, mass emissions, including emissions during start-ups, shutdowns 

and malfunctions, for air contamination source i on a 30-day rolling basis. 

Eiallowable = The allowable NOx mass emissions computed using the allowable emission rate 

limitations for air contamination source ion a 30-day rolling basis specified in§ 129.97.lf 

an air contamination source included in an averaging plan ~~subject to a numerical emission 

rate limit that is more stringent than the applicable allowable emission rate limitation in§ 

129.97, then the numerical emission rate limit shall be used for the calculation of the 

allowable NO, mass emissions. 

n The number of air contamination sources included in the NO, emissions averaging plan. 

Even though all three of the Homer City Generating Station coal-fired EGUs have been equipped 

with SCR NOx controls for a number of years, the unit~ have been operated during recent ozone 

seasons with NOx emission rates reflective of coal-fired EO Us that do not incorporate SCR NOx 

controls. However, all three of the Homer City coal-fired EGUs have historically demonstrated 

the ability to operate with ozone season average NOx rates below 0.12 lb/MMBTU. The 

following graph shows the 2000 through 2015 ozone season average NOx emission rate values 

for the Homer City Generating Station coal-fired EGUs. 
205 


30463.173

0.5 c: 

·~ 0 45 

] 0.4 

,!! s 0.35 

z J;; 0 3 t'.li . I! ::E 0.25 

l € 0.2 

c: .. ~ i 0.15 

: 0.1 

5 0.05 

/3 0 

Graph 2 

Homer City Generating Station Units 1, 2 and 3 

Ozone Season Average NOx Emission Rate 

Ozone Season Year 

!!!Unit 1 

!!!Unit 2 

Unit3 

As shown in the above graph, all three Homer City coal-fired EGUs demonstrated the ability to 

operate with ozone season NOx emission rate values under 0.12 lb/MMBTU. The lowest ozone 

season average NOx emission rate for Unit I of 0.0695 lb/MMBTU was recorded in 2006. The 

lowest ozone season average NOx emission rate for Unit 2 of0.0826 was also recorded in 2006. 

The lowest ozone season average NOx emission rate for Unit 3 of0.0872 was recorded in 2005. 

All of these low ozone season NOx rates were recorded several ozone seasons after the initial 

installation of the respective SCRs, and during the period when the units were subject to the 

EPA's NOx State Implementation Plan (SIP) Rule and the related NOx Budget Trading Program. 

Potential Impact of the Absence of Short Term NOx Emission Rate Averaging Times 

Pennsylvania's revised NOx RACT regulation established a presumptive NOx RACT rate of 

0.12 lb/MMBTU for SCR-equipped coal-fired EGUs beginning in 2017. If all three of the 

Homer City Generating Station coal-fired EGUs (or the Homer City facility NOx emission rate 

average) met a 0.12 lb/MMBTU limit, and each operated at its maximum rated heat input, the 

daily NOx mass emissions from the Homer City Generating Station would not meet or exceed 

the 38.153 tons ofNOx per day value (the value shown by STI modeling to have a significant 

impact on Delaware's ambient ozone on July 18, 2011). However, Pennsylvania's new RACT 

regulation permits compliance with the 0.12 lb/MMBTU NOx rate limit by averaging NOx 

emissions among units at a common facility on a 30-day rolling average compliance basis. 
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30463.174

When taken in conjunction with Pennsylvania's NOx RACT regulations prov!Slons under 

§129.98 which allows averaging of unit emissions at a common facility, it is possible that the 

Homer City Generation Station could emit NOx at rates well above 0.12 lb/MMBTU for one or 

more days and still maintain compliance with the 0.12 lb/MMBTU, 30-day rolling average. This 

could allow the Homer City Generating Station to emit NOx mass emissions in excess of 38.153 

tons/day (the value shown by STI modeling to have a significant impact on Delaware's ambient 

ozone on July 18, 2011) and maintain compliance with the 0.12 lb/MMBTU, 30-day rolling 

average, NOx emission rate limit. 

The following is an example of how the Homer City Generating Station could emit NOx at an 

average rate of 38.153 tons/day (the value shown by STI modeling to have a significant impact 

on Delaware's ambient ozone on July 18, 2011) for one day during an ozone season and remain 

in compliance with Pennsylvania's revised RACT regulation. The AMPD 2015 ozone season 

operating heat input data was selected to form the basis for this example, as it is anticipated that 

it would be most representative of Homer City Generating Station facility and unit operations in 

the near future. For the purposes of this example, it is assumed that the Homer City Generating 

Station owner/operator choses to comply with the Pennsylvania NOx RACT limits using the 

facility average the provisions of the RACT regulation. 

As indicated in the AMPD for the 2015 ozone season, the highest heat input day was July 

19. The AMPD indicated that on that day the Homer City Generating Station combusted 

380,847 MMBTU. 

For July 18, 2015, assuming that the Homer City Generating Station emitted 38.153 tons of 

NOx (the value shown by STI modeling to have a significant impact on Delaware's ambient 

ozone on July 18, 2011) and combusted 380,847 MMBTU, the average daily NOx emission 

rate would be estimated to be 0.2004 lb/MMBTU. 

For the 2015 ozone season, the AMPD data indicated that the lowest 30-day total heat input 

was 6,575,991 MMBTU. The estimated NOx emissions that would have been emitted 

combusting 6,575,991 MMBTU at an average NOx emission rate of 0.12 lb/MMBTU is 

394.6 tons. (This is the allowable NOx mass emissions for the 30-day average in accordance 

with the provisions of the Pennsylvania NOx RACT for compliance purposes.) 

The required Homer City Generating Station facility average NOx emission rate required to 

comply with the 0.12 lb/MMBTU 30-day average and accounting for the 3 8.153 ton/day of 

NOx mass emissions for one day is estimated to be: 

((394.6 tons- 38.153 tons) * 2000 lb/ton) I (6,575,991 MMBTU- 380,847 MMBTU) 

= 0.1148 lb/MMBTU 

The estimated required average NOx emission rate of 0.1148 lb/MMBTU appears to be 

within the capabilities of all three of the Homer City Generating Station coal-fired EGUs, as 

shown by the historic average ozone season NOx emission rate data included in the above 

Graph2. 
207 


30463.175

The additional following example illustrates how the averaging provisions may also provide for 

compliance even when the Homer City Generating Station operated for a day with 

extraordinarily high NOx mass emissions. For this example it is assumed that a worst NOx mass 

emissions day would occur with all three Homer City Generating Station coal-fired EGUs 

operating for 24-hours at their AMPD listed maximum hourly heat input (shown in Table 7) at 

the highest average facility NOx emission rate that has been observed over the last few ozone 

seasons. 

The 24-hour heat input for all of the Homer City Generating Station coal-fired EGUs 

operating at their full heat input capacity is estimated as: 

(6792MMBTU/hr + 6792MMBTU/hr + 7260MMBTU/hr) "'24hrslday = 500,256 MMBTU. 

The highest average facility NOx emission rate for the Homer City facility over the last few 

seasons is 0.3285 lb/MMBTU, which occurred during the 2015 ozone season. 

Using the estimated maximum heat input and the 2015 ozone season average NOx emission 

rate, the estimated NOx mass emissions would be: 

500,256MMBTU!day "'0.3285lb/MMBTU = 82.167 tons/day. 

The required Homer City Generating Station facility average NOx emission rate required to 

comply with the 0.12 lb/MMBTU 30-day average and accounting for the 82.167 ton/day of 

NOx mass emissions for one day is estimated to be: 

{(394.6 tons- 82.167 tons) * 2000 lb/ton) I (6,575,991 MMBTU- 500,256 MMBTU) 

= 0.1028lb!MMBTU 

The estimated required average NOx emission rate of 0.1028 lb/MMBTU appears to be 

within the capabilities of all three of the Homer City Generating Station coal-fired EGUs, as 

shown by the historic average ozone season NOx emission rate data included in the above 

Graph2. 

As discussed earlier in this petition and as shown in Graph 2, all three Homer City Generating 

Station coal-fired EGUs have historically demonstrated the ability to operate with ozone season 

average NOx emission rates well below 0.12 lb/MMBTU. These historic Homer City 

Generating Station ozone sea~on average NOx emission rates demonstrate that the facility ha~ 

the capability to operate for extended periods at the levels necessary to remain in compliance 

with the provisions of the Pennsylvania NOx RACT regulation in the event the facility incurred 

the NOx emission excursions discussed in the above two examples. 

While the above two examples are theoretical, they represent realistic scenarios where the 

Homer City Generating Station could have daily NOx emissions at or above levels that have 

been shown by STI's modeling to significantly impact Delaware's ambient ozone while the 

facility remains in compliance with Pennsylvania's new RACT regulation, Title 25. 

Environmental Protection! Part l Department of Environmenral Protection! Subpart C. 

Protection of Natural Resources, Article Ill Air Resources! Chapter 129. Standards for Sources, 

Additional RACT Requirements for Major Sources ofNOx and VOCs. 
208 


30463.176

Delaware does not agree that a 30-day averaging period, as provided for in Pennsylvania's 

revised NOx RACT regulation, is appropriate in conjunction with the 0.12lb/MMBTU NOx rate 

limit. It is Delaware's opinion that the use of a 30-day rolling average for an emissions 

limitation is not protective of short term NAAQS such as the 2008 and 2015 8-hour ozone 

NAAQS, and can potentially have a negative impact on Delaware's ability to be in compliance 

with the short term air quality standards of the 2008 and 2015 8-hour ozone NAAQS. 

Short Term NOx Emission Limits Are Required To Assist in Reducing the Downwind 

Impact of Homer City Generating Station NOx Emissions 

The information discussed above indicates that currently applicable NOx emission rate limits and 

applicable EGU cap-and-trade NOx control programs, that were designed to limit annual and 

seasonal NOx emissions, have not served to limit the Homer City Generating Station's NOx 

emissions to levels such that those emissions do not significantly contribute to downwind 

exceedances of short term air quality standards, thereby imperiling the public health and welfare 

in downwind states. The modeling performed by STI supports this conclusion by quantifYing the 

impact of the Homer City Generating Station's NOx emissions on ozone levels measured at 

Delaware's monitoring locations. 

Pennsylvania has recently revised its NOx RACT regulation. In accordance with the provisions 

of the revised NOx RACT regulation, beginning in 2017, the Homer City Generating Station 

coal-fired EGUs will be subject to a NOx emission rate limit of 0.12 lb/MMBTU, and in 

accordance with provisions of the revised NOx RACT regulation may elect to comply with the 

limit by averaging the emissions of the three coal-fired EGUs at the facility and on a 30-day 

rolling average basis. However, as discussed earlier, the 30-day averaging provisions of the 

revised NOx RACT regulation do not ensure that that the Homer City EGU facility will not emit 

NOx emissions that have been shown by STI modeling to significantly impact Delaware's 

ambient ozone while still remaining in compliance with applicable NOx emission limitations. 

Sufficiently stringent NOx emission rate limits based on shorter term averaging periods (such as 

24-hour) are needed to help ensure that the Homer City Electric Generating Station does not 

significantly impact downwind jurisdictions' ability to comply with the 8-hour ozone NAAQS. 

It is interesting to note that the NOx emissions rate limitations and EGU cap-and-trade NOx 

control programs applicable to the Homer City Generating Station resulted in the installation of 

SCR, the most effective commercially available NOx control technology, on the Homer City 

Generating Station's coal-fired EGUs. AMPD data indicates that after the installation of the 

SCRs, the Homer City Generating Station coal-fired EGUs demonstrated ozone season average 

NOx emission rates reflective of effective SCR operation. However, the AMPD also 

demonstrates that the Homer City Generating Station did not consistently operate the SCR 

controls during subsequent ozone seasons to attain similar average ozone season NOx emission 
209 


30463.177

rates. Since the early years of installation of SCRs at the Homer City Generating Station, 

changing conditions in the power generation industry have resulted in conditions where NOx 

cap-and-trade compliance allowances are available at prices that make it uneconomic to operate 

existing NOx controls, such as Homer City Generating Station SCRs, for compliance with capand-trade NOx control programs. Additional regulatory incentive is required to ensure that the 

existing EGU NOx controls are consistently operated in accordance with good pollution control 

practices. 

Delaware is concerned that the NOx mass emission limits associated with the CSAPR Update 

will be ineffective in properly protecting the public health and welfare in downwind states at all 

times with regards to the 8-hour ozone NAAQS. It is recognized that the provisions of the 

CSAPR Update provide for more restrictive annual and seasonal NOx mass emissions than 

previous rules, and that the CSAPR Update programs also provide significantly more restrictive 

allowance trading provisions than previous rules. However, the provisions of the CSAPR 

Update do not provide any limitations on the Homer City Generating Station's NOx mass 

emissions for any period shorter than seasonal (such as hourly or daily). The lack of sufficiently 

stringent short term NOx emission rates facilitates the continued operation of the Homer City 

Generating Station's coal-fired EGUs with inadequate NOx emission control and resulting high 

NOx emissions over short periods of time. The lack of sufficiently stringent short term 

emissions limitations will therefore help facilitate the Homer City Generating Station's NOx 

mass emissions at levels that will continue to support non-compliance with the 8-hour ozone 

NAAQS in Delaware, and thereby continue to impact the health and welfare of Delaware's 

citizens. 

In order to be protective of short term air quality standards, such as the 8-hour ozone NAAQS, it 

is Delaware's opinion that it is necessary to establish emissions limits with appropriate 

magnitudes and averaging periods for the Homer City Generating Station that ensure that the 

NOx emissions are adequately controlled during any particular time period. It is Delaware's 

opinion that selection of a short term NOx emission rate limit averaging period of no greater than 

24 hours is also appropriate to address the short term aspects of compliance with a short term 

NAAQS, such as the 8-hour ozone NAAQS. 

Requested EPA Action 

Even with extensive reduction of NOx emissions from EGU sources located in the state of 

Delaware, Delaware continues to experience exceedances of the 8-hour ozqne 

NAAQS. Modeling conducted by the EPA indicates that emissions from EGUs in upwind states 

are major contributors to Delaware's ongoing 8-hour ozone NAAQS compliance 

issues. Modeling performed for Delaware by Sonoma technologies Inc, (STI) indicates that the 
210 


30463.178

Homer City Generating Station, located in the upwind state of Pennsylvania, itself significantly 

impacts the level of ozone in Delaware's ambient air. 

The Homer City Generating Station's impact on Delaware's 8-hour ozone NAAQS compliance 

has been shown to occur even though the Homer City Generating Station's coal-fired EGUs are 

equipped with some of the most effective NOx emission controls (SCR) and have been in 

compliance with their permit NOx emissions rate limits and applicable cap-and-trade NOx 

emission control programs. These permit NOx emission rate limits and long term (armual, 

seasonal) cap-and-trade NOx control programs have not provided the level of short term NOx 

emission limits necessary to be supportive of the short term, 8-hour ozone NAAQS. Because the 

CSAPR Update will continue to attempt to control NOx mass emissions on an annual and 

seasonal basis, these programs are also expected to permit an EGU facility such as the Homer 

City Generating Station to emit NOx at high levels over any given short term period while the 

subject EGU facility remains in overall compliance with the armual and seasonal programs. 

The historic compliance flexibility provided to the Homer City Generating Station by applicable 

NOx cap-and-trade programs and relatively high, long term NOx emission rate limitations have 

permitted the Homer City Generating Station owner/operator to make decisions concerning 

whether to operate SCR controls or not for any given ozone season or part of an ozone season. 

The result of this compliance flexibility is evident in Graph 2, where it can be seen that during 

recent ozone seasons the Homer City Generating Station coal-fired EGUs have operated with 

average NOx emission rates representative of coal-fired EGUs that did not incorporate 

functioning SCR NOx controls. 

Pennsylvania ha~ recently revised its NOx RACT regulation, Title 25. Environmental 

Protection! Part 1 Department of Environmental Protection! Subpart C. Protection of Natural 

Resources, Article III Air Resources/ Chapter 129. Standards for Sources, Additional RACT 

Requirements/or Major Sources ofNOx and VOCs. The revision to Pennsylvania's NOx RACT 

regulation will be effective beginning in 2017, and includes NOx emissions rate limits that will 

be applicable to the Homer City Generating Station coal-fired EGUs. This includes a NOx 

emission rate limit of 0.12 lb/MMBTU, provisions to allow averaging among all of the units at 

the facility, and provisions to have compliance based on a rolling 30-day average basis. As 

discussed earlier in this petition, the 30-day averaging provisions of the regulation give the 

Homer City Generating Station the ability to emit NOx at a level estimated by STI modeling to 

significantly impact Delaware's ambient ozone while remaining in compliance with the 

provisions of the revised Pennsylvania NOx RACT regulation. 

In order to be protective of short term air quality standards, such as the 8-hour ozone NAAQS, it 

is Delaware's opinion that it will be necessary to establish NOx emissions limits with appropriate 

magnitudes and averaging periods that ensure that the NOx emissions are adequately controlled 

during any particular time period. Therefore, Delaware is hereby petitioning the EPA under 

section 126(b) of the Clean Air Act to find that the Homer City Generating Station, located in 
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Pennsylvania, emits air pollutants in violation of the prohibition of section IIO(a)(2)(D)(i) of the 

Clean Air Act, and to require the Homer City Generating Station to limit short term NOx 

emissions to levels that are protective of the 8-hour ozone NAAQS in downwind areas such as 

Delaware. 

References 

1) 40 CFR Part 50, 51, 52, eta!. National Ambient Air Quality Standards for Ozone; Final 

Rule Federal Register, Vol. 80, No. 206, October 26, 

2015 https://www.gpo.gov/fdsys/pkg/FR-20 15-1 0.-26/pdf/20 15-26594.pdf 

2) Approval and Promulgation of Air Quality Implementation Plans; Delaware; Section 

110(a)(2) Infrastructure Requirements for the 1997 8-Hour Ozone and the 1997 and 

2006 Fine Particulate Matter National Ambient Air Quality Standards, Federal Register 

No!. 76, No. 150 /Thursday, August 4, 2011/Rules and Regulations, page 47069, 

http:/ /www.gpo.gov/fdsys/pkg/FR -20 I J -08-04/pdf/20 Jl-19694.pdf#page= I 

3) Clean Air Act, Title I - Air Pollution Prevention and Control, Part A- Air Quality and 

Emissions Limitations, Section 126, http://www.epa.gov/air/caa!title l.html 

4) Delaware Air Quality Monitoring Network, Reports, 

http://apps.dnrec.delaware.gov/ AirMoni to ring! 

5) Revision to State Implementation Plan for Ozone, June 12, 2012, 

http://www.dnrec.delaware.gov/dwhs/lnfo/Rcgs!Documents/DE 11 Oa2 0075 proposed. 

ru!f 

6) 7 DE Admin. Code 1112, Control of Nitrogen Oxide Emissions, 

http://regulations.delaware.gov/ AdminCode/title7/l 000/ II 00/ lll2.shtml#Top0tl'age 

7) 7 DE Admin. Code 1146, Electric Generating Unit (EGU) Multi-Pollutant Regulation, 

http://regulations.delaware.gov/ AdminCodc/titlc7/l 000/11 00/ll46.shtml#Top0!Page 

8) 7 DE Admin. Code 1148, Control of Stationary Combustion Turbine Electric Generating 

Unit Emissions, 

!:!1\IE.IL!:~,gulali<;>_ns.q!;laware.gov/ AdminCode/title7/l 000/11 00/1148.shtml#TopO!Page 

9) Overview of the Ozone Transport Commission (OTC) NO, Budget Program, 

htt@".V\V\'{.&Q;t_g_Q.Y{i!irm!lfJ;.cts/prQgsrcg~llox/Qte:oy~rvi~w.htm! 

I 0) NO, Budget Trading Program!NOx SIP Call, 2003-2008, 

http://www.epa.gov/aimlarkets/progsrcgs/nox/§iih.btml 

11) Clean Air Interstate Rule (CAIR), http://www.epa.gov/cair/ 

12) Cross-State Air Pollution Rule (CSAPR), !illQ.;//www.epa.gov/crossstalcrulc/ 

13) 40 CFR Parts 52, 78, and 97, Cross-State Air Pollution Rule Update for the 2008 Ozone 

NAAQS; Proposed Rules, Federal Register Vol. 80, No. 232, Thursday December 3, 

2015, https://www.gpq_,gov/fdsy1!!Jllig!FR-:f915-12-P31.Qdl72015-29796.pdf 

14)40 CFR Parts 52, 78, and 97, Final Rule - Cross-State Air Pollution Rule Update for 

the 2008 Ozone NAAQS, https://www3.epa.gov/airmarkets!CSAPRU!CrossStat.e%20Air%20Pnllution%20Rule~_20UpdlJ!~Y..<t.£\W1r%20tht!%2020Q.8%200zone%4Q 

NA/\QSJ:o202_060%20AS~,'t'o20l'R..f'1_,pdf 
212 


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15) United States Environmental Protection Agency's Air Markets Program Data (EPA's 

AMPD)- EGU emissions data extracted from the EPA's AMPD using various search 

criteria as required. http://ampd.epa.gov/ampd/QueryToolie.html 

16) United States Environmental Protection Agency Cross-State Air Pollution Rule, 

Technical Information and Support Documents, Air Quality Modeling Final Rule TSD, 

Contributions of the 8-hour ozone and 24-hour PM2.5 from each state to each 

monitoring site, 

h!!P:/ffiww.epa.gov/crossstaterulelpdfs/CSAPR Ozone%20and%20PM2.5 Contributio 

ns.xls 

17) Technical Support Document (TSD) for the Transport Rule, Docket ID No. EPA-HQOAR-2009-0491, Analysis to Quantify Significant Contribution, 

http://w~&Qll4.QV/crossstaterulelpdfs/fSD analysis to quanti!JJJgnilicant contribut 

ion 7-8-IO.pdf 

18)CAMx Modeling Documentation, Sonoma Technology Inc., October 24, 2016Ietter 

from Kenneth Craig to Ronald Amirikian, with attachment 

19) U.S. Energy Information Administration, http://www.eia.gov/electricity/data/detaildata.html 

20) Pennsylvania Bulletin/46 Pa. B. 2036/ Saturday April23, 2016/ Rules and Regulations/ 

Title 25 -Environmental Protection/ Environmental Quality Board/25 P A. Code CHS. 

121 and 129 http;f/www.pabu!J~Jjn.cornlsecure/datalvol46/46-17 /694.html 
213 


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STATE OF" DELAWARE 

DEPARTMENT OF NATURAL RESOURCES 

AND ENVIRONMENTAL CONTROL 

OFFICE OF THE 

SECR~TARY 

Ms. Gina McCarthy, Administrator 

89 KINGS tiJGHWAY 

DOVER, DELAWARE 19901 

November 28,2016 

United States Environmental Protection Agency 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Mail Code: !lOlA 

Washington, DC 20460 

Dear Administrator McCarthy: 

PHONE; (302.) 739~9000 

FAX: (302) 739·5242 

By this letter, the State of Delaware hereby petitions the Administrator of the 

Environmental Protection Agency (EPA) under § 126(b) of the Clean Air Act (CAA) to find that 

the Conemaugh Generating Station's electric generating units (EGUs), located in Indiana 

County, Pennsylvania, are emitting air pollutants in violation of the provisions of Section 

II O(a)(2)(D)(i) of the CAA with respect to the 2008 0.075 ppm ozone NAAQS and the 2015 8-

hour 0.070 ppm ozone NAAQS. 

Section IIO(a)(2)(D)(i) prohibits any source or other type of emissions activity within a 

State, "from emitting any air pollutant in amounts which will contribute significantly to 

nonattainment in, or interfere with maintenance by, any other State with respect to any such 

national primary or secondary ambient air quality standard." Section 126(b) of the CAA 

provides that, "[a]ny State or political subdivision may petition the Administrator for a finding 

that any major source or group of stationary sources emits or would emit any air pollutant in 

violation of the prohibition of Section II O(a)(2)(D)(ii) or this section." 

I am aware of EPA efforts that are underway to address transported emissions, to include 

the recent finalization of the update to the Cross State Air Pollution Rule (CSAPR), planned 

future efforts beyond the CSAPR Update Rule that will be necessary to fully address interstate 

transport for the 2008 ozone NAAQS and for the recent 2015 ozone NAAQS, and federal Tier 3 

vehicle emissions and fuel standards measures to reduce NOx emissions. While helpful, these 

efforts are not adequate to mitigate the impacts of upwind emissions on Delaware's air quality 

and are tangent to the CAA Section 126 process. EPA has effectively closed the door to CAA 

tools designed to bring clean air to Delaware by establishing nonattainment area boundaries that 
214 


30463.182

Ms. Gina McCarthy 

November 28, 2016 

Page Two 

effectively penalize areas like Delaware rather than apply the CAA to the emissions that cause 

our unhealthy air, by failing to act on a CAA I 76 petition in the timing mandated by the CAA, 

by extending CAA attainment timeframes rather than bumping up areas and promulgating 

required federal implementation plans. From a downwind perspective, EPA has lost sight of the 

CAA mandate that requires attainment "as expeditiously as practicable and no later than .... " 

CAA Section 126(b) requires that within 60 days after receipt of any petition and after public 

hearing, the Administrator shall make such a finding or deny the petition. We look forward to 

working with you and your staff during this period in which you make your finding regarding 

this petition and take the required actions to protect the health and welfare of Delaware's 

citizens. Please do not hesitate to contact me if you have any questions or need additional 

information regarding this petition. 

CC: Jack Markell, Governor, 

State of Delaware 

Ali Mirzakhalili, Director 

Secretary 

Department of Natural Resources and Environmental Control 

Administrator Shawn M. Garvin 

US EPA Region III Office 

Krishnan Ramamurthy, Director 

Pennsylvania Department of Environmental Protection 
215 


30463.183

Attachment 1 

Delaware CAA 126 Petition 

Conemaugh Generating Station 

The State of Delaware submits this petition for a finding under § l 26(b) of the Clean Air Act that 

the Conemaugh Generating Station's electric generating units (EGUs), located in Indiana 

County, Pennsylvania, significantly contribute to Delaware's non-attainment of the 2008 8-hour 

ozone national ambient air quality standard (NAAQS) of0.075 ppm and the latest 8-hour ozone 

NAAQS of0.070 ppm adopted by the United States Environmental Protection Agency (EPA) on 

October 26, 20I5. (1) 

Delaware has complied with the requirements of§ l I O(a)(2)(D)(i)(I) of the CAA by adopting instate control measures for the prevention of emissions that would significantly contribute to nonattainment, or interfere with maintenance, of the ozone National Ambient Air Quality Standard 

(NAAQS) in a downwind area. (2) However, Delaware's ability to achieve and maintain healthbased air quality standards for its own residents is severely impacted by sources outside of the 

state of Delaware. This is due to the fact that more than 94% of the ozone levels in Delaware are 

created by the transport of air pollutants fi·om upwind areas. Attainment and maintenance of the 

2008 and 2015 8-hour ozone NAAQSs in Delaware is possible only through additional emission 

reductions in the upwind states that significantly contribute to non-attainment and maintenance 

in Delaware.. · 

Section l26(b) of the CAA provides that, "[a ]ny State or political subdivision may petition the 

Administrator for a finding that any major source or group of stationary sources emits or would 

emit any air pollutant in violation of the prohibition of Section II O(a)(2)(D)(i) or this section." 

In accordance with §126(b) of the Clean Air Act, the state of Delaware petitions the 

Administrator of the EPA establish a timely schedule for the above-referenced Conemaugh 

Generating Station electric generating facility and the state of Pennsylvania to put those entities 

in compliance with §IIO(a)(2)(D)(i) of the Clean Air Act with respect to the 2008 8-hour 0.075 

ppm ozone NAAQS and 20I5 8-hour 0.070 ppm ozone NAAQS. (3) 

Background 

The EPA began to address air quality issues related to ambient ozone through establishment of a 

related National Ambient Air Quality Standard in 1971. In I997 the EPA first established the 8-

hour ozone NAAQS to protect human health and welfare at a level of 0.08 ppm. The EPA 
216 


30463.184

subsequently lowered the 8-hour ozone NAAQS to 0.075 ppm in 2008. After further evaluation, 

the EPA further lowered the 8-hour ozone standard to 0.070 ppm on October 26,2015. (I) 

The establishment of the short term ozone standard (8-hour NAAQS) was necessary to address 

the potential health impact of short term exposure to high levels of ozone. Short term exposure to 

ozone can cause rapid, shallow breathing and related airway irritation, coughing, wheezing, 

shortness of breath, and exacerbation of asthma, particularly in sensitive individuals and 

asthmatic children. Short term exposure also suppresses the immune system, decreasing the 

effectiveness of bodily defenses against bacterial infections. Research studies indicate that 

markers of cell damage increase with ozone exposure. Some studies suggest that there is a link 

between ozone exposure and premature death of adults and infant death. Other studies indicate a 

link between ozone and premature birth and adverse birth outcome, cardiovascular defects, and 

adverse changes in lung structure development in children. Children, the elderly, those with 

chronic lung disease, and astlunatics are especially susceptible to the pulmonary effects of ozone 

exposure. Additionally, studies have shown that ozone can adversely affects trees and vegetation, 

can cause reduced crop yields, and can contribute to nitrification of bodies of water. 

Atmospheric ground level ozone that is harmful to human health and welfare is formed primarily 

by the chemical reaction of nitrogen oxides (NOx) with volatile organic compounds (VOC's) in 

the presence of heat and sunlight. Dry, hot, sunny days are most conducive to the formation of 

ozone. Because ground level ozone concentrations are highest when sunlight is the most intense, 

in the eastern United States the warm summer months (May I through September 30) are 

referred to as the ozone season. Weather also affects ozone concentrations and how quickly it is 

transported and dispersed. Periods of light winds allow ozone and ozone precursor pollutants to 

build up in any particular area leading to greater concentrations. However, the wind can also be 

responsible for transporting the ozone and ozone precursors over long distances downwind. This 

downwind pollutant transport can then combine with more local emissions to contribute to 

exceeding the ozone NAAQS in any particular location. 

Delaware has experienced a number of exceedances of t.l-Je health based 8-hr ozone NAAQS. 

(4) The following table identifies the number of 8-hour ozone NAAQS exceedances experienced 

in Delaware during the ozone seasons for the years 2000 through 2016: 
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Table I 

Actual Delaware Ozone Exceedanccs- 8-Hour NAAQS 

New Castle county· Kent County · Sussex County · Total No. of 

1\lo. of Days of No. of Days of No. of Days of Days of 

Exceedance Exceedance Exceedance Exceedance 

2016 Ozone Season *# 10 3 11 

2015 Ozone Season •• 0 0 2 

2014 Ozone season •• 3 0 0 3 

2013 Ozone Season •• 1 0 1 2 

2012 Ozone Season •• 13 14 12 1~ 

2011 Ozone Season •• 11 3 6 15 

2010 Ozone Season •• 14 9 18 

2009 Orone Season •• 3 0 0 3 

2008 Ozone Season •• 9 8 8 14 

2007 Ozone Season ••• 5 0 0 5 

2006 Ozone Season ••• 4 3 6 

2005 Ozone Season ••• a 8 16 

2004 Ozone Season'** 3 0 2 5 

•= 0.070 ppm Standard ••= 0.075 ppm Standard •••= 0.08 ppm Standard 

# = Preliminary Data 

On October 1, 2015, the EPA strengthened the 8-hour ozone NAAQS to 70 ppb based upon 

scientific evidence of ground level ozone's negative effect on public health and welfare. 

Relative to the 2008 8-hour ozone standard, the updated 8-hour ozone NAAQS is expected to 

further improve public health protection, particularly for at-risk groups, and also improve the 

health of trees, plants, and ecosystem. If the 2015 8-hour ozone standard of 70 ppb had been in 

effect for the past several years, based upon monitoring data, it is estimated that Delaware would 

have experienced a higher number of 8-hour ozone exceedances compared to the actual 

exceedances of the 2008 8-hour ozone standard of 75 ppb. The following table provides a 

comparison of the actual 8-hour ozone NAAQS exceedances and the estimated exceedance that 

would have occurred if the 70 ppb standard had been in effect: 
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30463.186

Tab1e2 

Comparison of Actual vs Estimated Days of Ozone Exceed a nee 

2008 8-hour Ozone NAAQS vs 2015 8-hour Ozone NAAQS 

Actual Number Actual Number Estimated Number of Estimated Number of 

of Days of 75 of Monitor-Days Days of Ozone Monitor-Days of 

ppb Ozone of 75 ppb Ozone Standard Exceedance Ozone Standard 

Ozone Standard Standard Assurni ng 70 ppb Exceedance Assuming 

Season Exceedance Exceedance Standard 70 ppb Standard 

2010 18 28 36 91 

2011 15 20 25 73 

2012 19 39 28 107 

2013 2 2 6 7 

2014 3 3 17 

2015 2 2 10 16 

2016 6 17 11* 34. 

*2015 8-hour ozone NAAQS limit of70ppb in effect, actual exceedances shown (preliminary data) 

It can be seen in the above table that if the more stringent 2015 8-hour ozone NAAQS of70 ppb 

were in effect during the 2010 through 2015 ozone seasons that Delaware would have exceeded 

that standard at a much higher rate than it experienced under the 2008 8-hour ozone NAAQS of 

75 ppb. As shown in the above table, for the 2010 through 2015 ozone season, the number of 8-

hour ozone NAAQS exceedance day would increase from 59 days under the 2008 NAAQS to 

113 days under the 2015 NAAQS. 

As discussed earlier, NOx is a precursor pollutant to the formation of atmospheric ozone. NOx 

is a generic term for a group of reactive gasses that are composed of nitrogen and various 

amounts of oxygen (including nitrogen oxide and nitrogen dioxide). NOx is formed in the 

combustion process as a result of high temperature chemical reactions of the nitrogen contained 

m the fuel and the nitrogen contained in the ambient combustion air along with oxygen in the 

combustion air. Fossil fuel-fired electric generating units are some of the largest emitters of 

NOx, with EGUs powered by coal-fued steam generators without NOx emissions controls 

exhibiting some of the highest NOx emission rates (in terms oflb/MMBTU). 

Uncontrolled, higher nitrogen content fuels, such as coal and residual fuel oil, tend to result in 

higher NOx emissions than lower nitrogen content fuels (such as natural gas). Various 

combustion configurations tend to result in varying NOx emission rates (in terms of pounds of 

NOx emitted per million BTU of fuel heat input (lb/MMBTU)) due to amounts of excess air 

required for combustion, rate of fuel combustion, combustor geometry, peak combustion 

temperatures, and duration of combustion gasses at peak temperatures, etc. Combustion 

controls, such as low NOx burners and overfire air, are commercially available NOx reduction 

technologies adaptable and applicable to most EGU combustion systems. Post combustion NOx 
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30463.187

controls, such as selective non-catalytic reduction (SNCR) and selective catalytic reduction 

(SCR), are commercially available highly effective NOx reduction technologies that are 

applicable to most EGO exhaust gas streams. These NOx controls are generally available for 

both new EGU installations and for retrofit on existing EGUs. Utilization of combustion 

controls and post combustion controls, singly or layered together for a single EGU, can result in 

significant reductions in the EGUs NOx emissions rate, greater than 90% reduction from 

uncontrolled levels for some EGOs. 

To address the NOx emissions from EGU sources located in the state of Delaware, Delaware has 

promulgated a number of rules and regulations that effectively control the NOx emissions from 

these EGOs which also fulfils Delaware's obligation under §II O(a)(2)(D)(i)(I) of the Clean Air 

Act. These rules and regulations have been previously submitted to the EPA in Delaware's June 

2007 and subsequent state implementation plan (SIP) revisions, including the June 2012 revision. 

(5) The referenced rules and regulations include the following: 

7 DE Admin Code 1112, Control of Nitrogen Oxide Emissions, which set RACT-based NOx 

emission rate standards for major stationary sources, including EGOs. (6} 

7 DE Admin Code 1146, Electric Generating Unit (EGU) Multi-Pollutant Regulation, which 

included short term NOx emission rate limits (lb/MMBTU on rolling 24-hour average) and 

annual NOx mass emissions caps for coal-fired and residual oil-fired EGOs. (7) 

7 DE Admin Code 1148. Control of Stationary Combustion Turbine Electric Generating 

Unit Emissions, which set NOx emission rate limits or approved NOx control technology 

requirements (such as water injection) for combustion turbines with a nameplate rating of I 

MW or greater that had not previously controlled their NOx emissions rate in accordance 

with the NOx RACT requirements of7 DE Admin Code 1112. (8) 

In addition to th" NOx cunttol regulations noted above, Delaware has pruticipated in regional 

and federal initiatives, where applicable, that were designed to limit the NOx emissions from 

EGU sources whose NOx emissions may impact compliance with ozone standards in downwind 

states. These regional and federal initiatives include the following: 

The Ozone Transport Commission (OTC) NOx Budget Program. (9) In 1990, the OTC was 

created by amendments to the Clean Air Act. The OTC consisted of northeast and midAtlantic states with persistent summertime ozone problems. These OTC states include 

Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New 

Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and portions of 

Virginia. The OTC was tasked with advising the EPA on ozone transport issues and for 

helping to develop and implement regional solutions to ozone problem experienced by the 

member states. Recognizing that the interstate transport of pollutants to downwind states 
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30463.188

contributed to summertime ozone problems in those downwind states, the OTC created and 

implemented its NOx Budget Program. The NOx Budget Program was a cap-and-trade 

program to limit the total regional emission of NOx from fossil-fueled electric generating 

units and large boilers located in OTC states, and became effective in 1999. Cap and trade 

programs effectively reduce the total amount of emissions, usually for a geographic area, by 

placing a cap on the total emissions occurring in that geographic area without setting unit by 

unit limits. For the OTC NOx Budget Program, affected states were allocated a NOx 

emissions cap for the subject NOx emitting sources in the respective state, and the subject 

units were required to hold and surrender a NOx allowance for each ton ofNOx emitted in 

order to comply with program requirements. This program did not include any unit specific 

NOx emissions rate requirements. The OTC NOx Budget Program effectively ended when 

the EPA began administering the EPA's NOx Budget Trading Program. 

The EPA NOx State Implementation Plan (SIP) Rule. (10) ln 2003 the EPA implemented its 

NOx State Implementation Plan (SIP) Rule utilizing the NOx Budget Trading Program, a 

NOx emissions cap and trade program similar to that used for the OTC NOx Budget 

Progran1. Relative to the OTC NOx Budget Program, the EPA's NOx Budget Trading 

Program was expanded to include additional states (for a total of 20 states and also the 

District of Columbia) and established more stringent NOx emissions allowance 

allocations. The EPA's NOx State Implementation Plan (SIP) Rule was intended to reduce 

the regional transport of ozone and ozone-forming pollutants in the Eastern United 

States. The NOx State Implementation Plan (SIP) Rule was in place until 2009, when it was 

replaced by the EPA's Clean Air Interstate Rule (CAIR). 

The EPA Clean Air Interstate Rule (CAIR). (11) In 2005, the EPA promulgated its CAIR 

program that required states to reduce the emissions of S02 and NOx to help meet health 

based air quality standards for fine particulate matter and ozone. The EPA indicated in the 

proposal for the CAIR that NOx and S02 emissions in 23 states and the District ofColnrnbia 

contributed to unhealthy levels of fine particulate matter in dowm:vind states, an.d that the 

NOx emissions from 25 states and the District of Columbia contributed to unhealthy levels 

of 8-hour ozone in downwind states. EPA indicated that the reduction of S02 and NOx 

emissions from EGU s would serve to reduce the interstate transport of pollutants related to 

these emissions. CAIR established a cap-and-trade program covering EGUs to limit the 

emissions of S02 and NOx from these sources as an option for compliance with the 

reduction requirements. (All states subject to the CAIR selected this compliance 

option.) S02 and NOx emissions mass caps were established for individual states and 

allowances were issued by the EPA to cover those allowable emissions from subject 

sources. The cap-and-trade program was intended by the EPA to provide subject sources 

flexibility in meeting the mass emissions limitations through the installation of controls, fuel 

switching, or trading/purchase of excess allowances from other subject sources. The NOx 
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30463.189

emissions limitations of CAIR became effective in 2009, and the S02 emissions limitation 

of CAIR became effective in 2010. The EPA made a number of changes to the CAIR 

subsequent to its original proposal, the most notable was the establishment of a process to 

provide for EPA to establish CAIR Federal Implementation Plans (FIPS) for states that 

failed to timely establish state plans for the implementation of CAIR. This ensured that the 

controls of the cap-and-trade program were uniformly established in all subject states on a 

timely basis. 

The EPA Cross-State Air Pollution Rule (CSAPR). (12) Subsequent to the promulgation of 

CAIR, legal actions lead the US Court of Appeals for the DC Circuit to make the decision in 

2008 to remand the CAIR back to the EPA to make the rule more consistent with the 

requirements of the Clean Air Act. However, the courts left the requirements of CAIR in 

place until the EPA finalized a replacement rule. In response, the EPA promulgated its 

Cross-State Air Pollution Rule (CSAPR) in 2011. Additionally, in conjunction with the rule 

the EPA established federal implementation plans (FIPS) for each state subject to the 

CSAPR in order to implement the rule as rapidly as possible. In the rulemaking process the 

EPA identified for subject states what portions of each state's emissions significantly 

contributed to ozone or PM2.5 pollution in downwind states. The C8APR established mass 

emissions limitations of 802 and NOx from power plants in subject states to eliminate the 

portion of those emissions that are significant contributions to non-attainment or 

maintenance of fine particulate matter and ozone air quality standards in downwind 

states. The C8APR established annual mass emissions limitations for 802 and NOx and 

additional ozone season NOx mass emissions limitations for NOx. Between the original 

C8APR and subsequent actions, there were 26 states subject to the ozone season NOx mass 

emissions limitations to address the 1997 Ozone NAAQ8, 18 states were subject to annual 

802 and NOx mass emissions limitations of the rule to address the 1997 Annual PM2.5 

NAAQS, and 21 states were subject to annual 802 and NOx mass emissions limitations to 

address the 2006 24-hr PM2.5 NAAQS (a combined total of 23 states for addressing the two 

PM2.5 NAAQS). Relative to previous mass-based emissions rules, the C8APR significantly 

restricted the trading of allowances that could be utilized for compliance purposes by 

establishing state variability limits that ensure that a state's actual mass emissions would 

fulfill its Clean Air Act "good neighbor" obligations. The EPA determined that Delaware 

was not required to participate in CSAPR. 

In 2012 the CSAPR was challenged in court, and the US Court of Appeals for the DC 

Circuit vacated the CSAPR and the implementing FIPs. The Court remanded the rule to the 

EPA to address the Courts findings, and directed the EPA to continue administering CAIR 

pending the promulgation of a valid rule to replace CAIR. As of this ruling, CAIR cap-andtrade programs for annual S02, annual NOx, and ozone season NOx remained in place. (12) 
222 


30463.190

In April of 2014 the US Supreme Court reversed the DC Circuit court's opinion vacating 

CSAPR. In June of2014 the EPA filed a motion with the U.S. Court of Appeals for the DC 

Circuit to lift the stay of the CSAPR, and in October of 2014 the Court of Appeals for the 

DC Circuit granted the EPA's motion. In November of 2014 the EPA issued a ministerial 

rule that aligned the dates in the CSAPR rule text with the revised court-ordered schedule, 

including 2015 Phase I CSAPR implementation and 2017 Phase 2 CSAPR implementation. 

(12) 

In November of 2015 the EPA proposed an update to the CSAPR by issuing the proposed 

CSAPR Update Rule. (13) Starting in 2017, this proposal would reduce summertime 

nitrogen oxides (NOx) emissions from power plants in 23 eastern states, by establishing 

NOx mass emission caps, in order to reduce the impact of those power plant emissions on 

downwind states. In its proposal, the EPA has requested comments regarding the potential 

application of short term NOx emission limits on these same power plants. The EPA 

determined that Delaware was not required to participate in the CSAPR Update. 

On September 7 of 2016 the EPA finalized the update to the CSAPR by issuing the CrossState Air Pollution Rule Update for the 2008 Ozone NAAQS, Final Rule. (14) The CSAPR 

Update Rule addresses the ozone season (May September) transport of ozone pollution in 

the eastern United States that crosses state lines to help downwind states and communities 

meet and maintain the 2008 ozone national ambient air quality standard (NAAQS). Starting 

in May 2017, this final rule puts in place NOx emissions caps that will provide additional 

reductions of ozone season NOx emissions from power plants in 22 states in the eastern 

United States. 

These State and regional NOx reduction efforts have resulted in significant NOx emissions 

reductions from EGUs located in the state of Delaware. These reductions have occurred both in 

terms of ozone season NOx mass emissions (tons) and also in average ozone season NOx 

emissions rates (lb/MMBTU). The following table was assembled with data extracted from the 

United States Environmental Protection Agency's Air Markets Program Data (EPA's 

AMPD). (15) The table shows the ozone season NOx mass emissions (tons) and average NOx 

emissions rate (lb/MMBTU) for the EGU fleet located in the state of Delaware: 
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Table 3 

2000- 2016 Ozone Seasons 

State of Delaware 

Total EGU NOx Mass Emissions and Average NOx Emission Rate 

Change in NOx .4vereage NOx Change in 

Ozone Total EGU Mass Emissions Aver<~ge NOx 

Season OSNOx Emissions Rate Emission Rate 

Year (tons) from 2000 (%) (lb/MMBTU) (%) 

2000 4137 0.0 0.2784 0.0 

2001 4777 15.5 0.2806 o.a 

2002 4S09 11.4 0. 2415 -ll.3 

2003 3850 -6.9 0.2374 -14.7 

2004 3659 -11.6 o. 2449 -12.0 

2005 5175 25.1 0.2818 1.2 

2006 3567 -13.8 0.2582 -7.3 

2007 4179 1.0 0.2398 -13.9 

2009 3190 -22.9 0.2277 -18.2 

2009 1280 -69.1 0.1695 -39.1 

2010 2265 -45.3 0.1484 -46.7 

2011 1879 -54.6 0.1250 -55.1 

2012 1054 -74.5 0.0585 -79.0 

2013 879 -78.7 0,0589 . 7B.9 

2014 668 -83.9 0.0483 -B2.7 

2015 635 -84,6 0.0480 -82.9 

2016" 613 -85.2 0.0396 -85.8 

* Preliminary AMPD Data 

However, relatively long term NOx mass emission caps (such as annual or seasonal caps) have 

limited impact on the short term NOx emissions (such a 24-hour period) from EGUs that have a 

more direct impact on compliance with short term air quality standards, such as the 8-hour ozone 

NAAQS. To address this issue, Delaware's air quality regulations have included short term NOx 

emission rate limits (with 24-hour averaging periods) that are protective of the short term ozone 

NAAQS. These short term NOx emission rate limits have helped Delaware achieve significant 

reductions in ozone season peak daily NOx mass emissions from Delaware's EGUs. 
224 


30463.192

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Graph 1 

Delaware Total EGU Ozone Season Peak Day NO){ Mass 

Emissions 

2000 2001200220032004 2005200620072008 20092010 2011 201220132014 2015 2016 

Ozone Season Year 

It can be seen in the above Graph 1 that between the 2000 and 2016 ozone seasons, the 

Delaware's EGUs have achieved a NOx mass emissions reduction (for ozone season peak NOx 

mass emissions days) in excess of 80% reduction. This reduction in peak ozone season day NOx 

mass emissions provides benefit in attaining compliance with the 8-hour ozone NAAQS for both 

Delaware's citizens and downwind populations. 

Even though Delaware bas significantly reduced the NOx emissions from EGUs located in 

Delaware, as discussed above, Delaware continues to experience exceedances of the 8-hour 

ozone NAAQS. Pollutants transported from facilities in upwind states are significant 

contributors to Delaware's continuing issues in meeting the 8-hour ozone NAAQS. 

Modeling Identifies Impact of Upwind NOx Emissions Impacting Delaware's 8-hour 

Ozone NAAQS Compliance 

The US EPA performed modeling as part of the development of its Cross-State Air Pollution 

Rule in order to help determine the impact of transported pollutants on downwind states and 

those states' ability to attain and maintain the then current 2008 ozone NAAQS of75ppb. Some 

results of the modeling that identify state contributions to ozone at individual monitoring 

locations can be found on the spreadsheet titled "Contributions of 8-hour ozone, annual PM2.5, 

and 24-hour PM2.5 from each state to each monitoring site" located in the "Technical 

Information and Support Documents" section of the US EPA's Cross-State Air Pollution Rule 

(CSAPR) website. (16) 
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The US EPA's modeling identified 13 individual states (in addition to Delaware itself) whose 

NOx emissions significantly impact the ability of Delaware to attain and maintain the then 

current 8-hr ozone standard of 75 ppb. (17) (A state significantly impacts another state if it 

impacts that state's air quality by I% or more of the applicable air quality standard. For the then 

current 8-hr ozone standard of75 ppb, a significant contribution was 0.75 ppb or greater.) The 

states identified by the US EPA as significantly impacting Delaware's air quality, and the 

modeling results quantifying each state's impact, are shown in the following table: 

Table4 

States Significantly Impacting Compliance with the 8-hour 

Ozone Standard in Delaware and the Magnitude of that Impact 

Maximum 

Contribution 

State (ppb) 

CT 1.006 

DE 6.256 

IL 1.445 

IN 1.737 

KY 3.20B 

MD 23.951 

Ml 2.207 

NJ 13.034 

NY 9.092 

OH 3.987 

PA 13.344 

TN 1.932 

VA 6.039 

wv 3.142 

The EPA's modeling results, summarized in the above table, indi~.:ate that four stat~s (IV1aryland, 

New Jersey, New York, and Pennsylvania) have greater impact on compliance of the 8-hour 

ozone standard in Delaware than the impact of Delaware itself. The EPA's modeling results 

summarized in the above table also indicate that three states (Kentucky, Ohio, and West 

Virginia) individually have an impact on compliance of the 8-hour ozone standard in Delaware 

of 50% of the impact that Delaware impacts itself. These modeling results tend to confirm that 

pollutant transport is a significant issue for the state of Delaware, and they also help explain 

Delaware's ongoing difficulties with the 8-hour ozone standard despite the significant actions 

Delaware has implemented to reduce NOx and VOC emissions in Delaware. 
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Pennsylvania's Conemaugh Generating Station's Impact on Delaware's 8-hour Ozone 

NAAQS Compliance 

As noted in Table 4 above, the EPA's modeling indicated that the state of Petmsylvania 

significantly impacts Delaware's compliance with the 8-hour ozone NAAQS. Because of the 

magnitude of Pennsylvania's impact on Delaware's compliance with the 8-hour ozone standard, 

and the potential contribution to this impact by EGUs located in Pennsylvania, further modeling 

was performed to determine if individual Pennsylvania EGU facilities individually have a 

significant impact on Delaware's compliance with the 8-hour ozone standard. 

In order to help Delaware assess the impact of upwind EGU facility NOx emissions on 

Delaware's 8-hour average ozone exceedances in 2011, Sonoma Technologies Inc. (STI) 

conducted air quality modeling using the Comprehensive Air Quality Model with extensions 

(CAMx) Ozone Source Apportionment Technology (OSAT) (18). The 2011 o<:one season 

modeling was performed to determine 8-hour average ozone apportionments from individual 

upwind EGU faci·lities and upwind groups of EGU facilities. The modeling identified that a 

number of EGU facilities located in the state of Pennsylvania individually had significantly 

impacted Delaware's compliance with the 8-hour ozone NAAQS during the 2011 ozone 

season. The identified EGU facilities significantly impacting Delaware's ambient air quality 

included Pennsylvania's Conemaugh Generating Station. 

Because of the magnitude of its impact on Delaware's ambient ozone, the Conemaugh 

Generating Station is being individually addressed in this petition for a finding under §126(b) of 

the Clean Air Act. 

The STI modeling results indicated that the Conemaugh Generating Station, located in Indiana 

County, Pennsylvania, emitted NOxon a number of days during the 20 ll ozone season such that 

the magnitude ofthc emissions had a significant impact on Delaware's ambient air quality. The 

following table shows the 20 II ozone season days that the STI modeling determined that the 

Conemaugh Generating Station's NOx emissions had a signiticant impact on Delaware's 

ambient ozone: 
227 


30463.195

Table 5 

Conemaugh Generating Station 

STI Modeling Calculated Impact on Delaware Air Monitors 

2011 Ozone Season 

Conemaugh Facility STI Modeling Actual 2008 8-Hour 

D<lily NOx Mass Estimated Daily Ozone NAAQS 

Emissions- AMPD H1ghest Impact On DE Exceedance Day In 

Date (tons) Ozone Monlto1·s (ppb] Delaware 

June 8, 2011 62.78 1. 91 Yes 

June 9, 2011 59.788 L2B Yes 

June 18, 2011 54.516 0.86 

July 6, 2011 66.353 0.80 

July 7, 2011 67.173 1.03 Yes 

July 12, 2011 64.875 0.94 Yes 

July 18, 2011 62.926 2.02 Yes 

July 22, 2011 56.973 0.77 Yes 

July 23, 2011 61.212 2.10 Yes 

July 29, 2011 63.235 1.02 Yes 

As shown in the above Table 5, the STI modeling calculated that during the 2011 ozone season 

the Conemaugh Generating Station's NOx emissions had a significant impact on Delaware's 

ambient ozone on 10 separate days relative to both the 2008 8-hour ozone NAAQS of0.075 ppm 

and 2015 8-hour ozone NAAQS of0.070 ppm. 

The above Table 5 also shows that of the 10 days of the 2011 ozone season that the STI 

modeling showed that the Conemaugh Generating Station significantly impacted Delaware's 

ambient ozone, 8 of the I 0 days coincided with actual ozone exceedances as measured by 

Delaware's ambient ozone monitors. 

However, emissions and meteorological data related to the dates shown in Table 5, where 

Conemaugh Generating Station NOx emissions were shown by STI modeling to significantly 

impact Delaware's 8-hour average ambient ozone, indicates that NOx emissions over periods 

shorter than 24-hours are directly related to the significant downwind ozone impact. 

As an example, for June 8 and 9, 2011, the STI modeling showed that the Conemaugh 

Generating Station's NOx emissions had a significant impact on Delaware's ambient ozone. As 

indicated in the following table, the Conemaugh emissions contributed 1.91 ppb ozone for a peak 

8-hour concentration beginning at 1100 hours on June 8, 2011, and contributed 1.28 ppb ozone 

for a peak 8-hour concentration beginning at I 100 hours on June 9, 2011. 
228 


30463.196

AQS 

Si~ lD S'U\tl' 

u:~oa oE 1f~09 DE 

Table 6 

Conemaugh Generating Station 

STI Modeling Calculated Impact on Delaware Air Monitors 

June 8 and 9, 2011 

'Stal'til\i Hour of 

PeakS-hour 

Lotal Designated ToW. 

Modt.IRd 

Apportiorunent 

Slte Nottattttiument Coneettmrtion Tag S-ltom· Ave 03 

N~:~~~t!LV:~:OJ;:l~~~:~)~j~~~ Y;:l Monti~ Day9 EDT(hlu~~;~O!~aroe :::~::te :~::a:~ Ncte00'+--"(p"p"-'b)--:-l,:::1.l 

New Cast! BRMIDY't\Ph!li\de!phi<H:~a 'Oil S U(U)OO !S 42063 PJ\ Caner\1augh 1.:2\1' 

In order to estimate the timing relationship between the Conemaugh Generating Station's NOx 

emissions and the STI modeled significant impact on Delaware's ambient ozone on June 8 and 9, 

2011, NOAA Hysplit Models were run utilizing the meteorological data for those dates. Figure 

I below shows the graphical Hysplit model output for June 8, 2011 and Figure 2 below shows 

the graphical Hysplit model output for June 9, 20 II. 

Fieure 1 NOAA H'l'St'LII MODEL 

83ckward trajectories ending 31 2000 UTC OB Jun 11 

EDAS Motcorological Data 

~-l /~ 

1500 

1000 

5o<l 
229 


30463.197

Figure 2 NOAA HYSPUT MODEL 

Backward trajectories ending ot 2000 UTC 09 Jun 11 

FOAS Mcleoro!og!c:tl Data 

~ I ·. 

It can be seen in Figure 1 above that on June 8, 2011 there was an approximate 21-hour patb 

from the Conemaugh Generating Station location (Long 79.0611) to the STI model's impacted 

Delaware ozone monitor. It can be seen in Figure 2 that on June 9, 2011 tbere was an 

approximate 16-hour path from the Conemaugh Generating Station location (Long 79.0611) to 

the STI model's impacted Delaware ozone monitor. Using these time delays and the STI model 

output's estimated start of the individual 8-hour ozone impact events, AMPD data was collected 

to show the Conemaugh Generating Station's facility NOx emissions !hat coincided with the STI 

model's calculated ozone impact events. 

The following graph shows the Conemaugh facility's NOx mass emissions during the time 

period leading up to the STI model's estimated ozone impact events on June 8 and June 9, 

20ll. The blue line on the chart is the hourly Conemaugh Electric Generating Station's total 

facility NOx mass emissions as recorded in the AMPD. The red portions of the same line 

represent the hourly NOx mass emissions estimated to coincide with the travel path duration of 

the NOx emissions related to the 8-hour ozone impacts that are shown in the green line 

segments. 
230 


30463.198

,, 

l ' ~ ' 

Figure 3 

Conemaugh Facility NOx Emissions and Ozone Impact on Delaware 

July 7, 8 and 9 2011 

9 11. n lS 17 19 n :>;t 2:5 11 <~ 111 n l~ s7 ~~ 4l ·~ 4~ 47 •11 ~1 !'~ ~~ S! !>9 t.t ~:'! ~b fil >;J< n 

tlourl"lr\(Mfdtlit:fJilJiy7,)U11 

-e;MrO f~(.id:r 1'10< 1-111ss Enu~,;<~rs J 

-l'iQ.-M'>5>tW!$~1~'>~A>~O(I~tt~,...,tl· ():!Jt•r,»"-tt l 

M<l<'lo!f ltTtJ~~d O.l ;Mp-Jct 

It can be seen in above Figure 3 that even on consecutive days there is a variation in the 

relationship in the timing of the Conemaugh Generating Station's NOx emissions and their 

model estimated variable impact on downwind ambient ozone in Delaware. 

Other 2011 ozone season Conemaugh Generating Station NOx emissions data and 

meteorological information further demonstrates the variability of the Conemaugh Generating 

Station NOx emissions on Delaware's ambient ozone. On July 12, 2011, the STI modeling 

showed that the Conemaugh Generating Station's NOx emissions had a significant impact on 

Delaware's ambient ozone. As indicated in the following table, the Conemaugh emissions 

contributed 0.81 ppb ozone for a peak 8-hour concentration beginning at 1200 hours on July 12, 

2011, and contributed 0.94 ppb ozone for a peak 8-hour concentration beginning at 1300 hours 

on July 12,2011. 

Table 7 

Conemaugh Generating Station 

STI Modeling Calculated Impact on Delaware Air Monitors 

July 12, 2011 

Desljplated 

LDCBl Nonatta11m1 

StattingHow· 

orPeak 8-lunu 

Total 

Modeled 

Apportionment 

AQS Site t>nt Area or Concentntion Tas: Plaut &-hour Ave 03 

Site lD State C'owrty Name CBSA Year Mouth Day EDT (bhnunss) Name FIPS State Name Notes -~b) 

l[+llS D£ t::ent STAiE_RODover, 0[ 2011 12 l:!COOQ 15 4:106~ PA Corem<:~ugh 0 Bl 

l[+{IS D£ Sussex 350_ V!RG.! Se<~ford, D£ 1011 11 lJ{H)cOQ IS 420&3 PA Conemtough 0.9!1 

In order to estimate the timing relationship between the Conemaugh Generating Station's NOx 

emissions and the STI modeled significant impact on Delaware's ambient ozone on July 12, 

2011, NOAA Hysplit Models were run utilizing the meteorological data for that date. Figure 4 

below shows the graphical Hysplit model output for July 12, 2011. 
231 


30463.199

Figure 4 NOAA HYS"Lil MODEL 

Backward lmjectories ending at 2000 UTC t 2 Jul I 1 

EDAS Meleorol~lcnl Dala 

g --·-----·-··---··-~-·····~·-·-··-·····-- !SOO 

e '""" 

j l~~-j------~~~~==::::~~~~==~==~=-~500~j 

It can be seen in Figure 4 above that on July 12, 2011 there was an approximate 12-hour path 

from the Conemaugh Generating Station location (Long 79.0611) to the STI model's impacted 

Delaware ozone monitor. Using this time delay and the STI model output's estimated start of the 

individual 8-hour ozone impact events, AMPD data was collected to show the Conemaugh 

Generating Station's facility NOx emissions that coincided with the STI model's estimated 

ozone impact events. This information is shown below in Figure 5. 

FigureS 

Conemaugh Facility NOx Emissions and Ozone Impact on Delaware 

July 11 and 12, 2011 

-AMPPfaa!itr NC1~ M~m ~n.ini~r>$ 

-NQtM~frTIJ$0iiW1~ ... UONtt-d"'"th\))!m~l 

---M~d~lfjt\1!1ottd 00 itni'ild: 

1 ' 3.; S 6 1 6 91t1Ul213HlHH1lriH"l0"2ll.U'2~!.!516112f.llll39$1n'UHit;;'9£8?362!l.,OU~1~l~~-IS~1>4H$ 

Hourl'ios1M!dnllhl A~lyU,2011 
232 


30463.200

In comparing the information in Figures 3 and 5, it can be seen that there is a varying 

relationship between the timing and magnitude of the Conemaugh Generating Station's NOx 

emissions and its estimated impact on Delaware's ambient ozone. Many variables impact this 

relationship, including wind speed, ambient temperature, humidity, intensity of sunlight, 

availability of other pollutants that contribute to ozone formation, etc. These factors are 

generally outside the control of the upwind emitting facility, and to a certain extent outside the 

ability to accurately predict the emissions' potential impact ahead of time. Because of this, the 

emissions from the Conemaugh Generating Station may significantly impact Delaware's ambient 

ozone on any particular ozone season day and only control of those emissions below significant 

impact threshold levels can ensure that Delaware's ambient ozone is not significantly impacted 

on any given ozone season day. 

Conemaugh Generating Station 

The Conemaugh Generating Station is located near New Florence, in Indiana County, 

Pennsylvania. The Energy Information Administration (EIA) database indicates that the 

Conemaugh Generating Station includes two coal fired steam electric generating units. (19) The 

following table provides some technical information regarding the Conemaugh Generating 

Station's coal-fired electric generating units: 

Unit 1 

Unit 2 

Table 8 

Conemaugh Generating Station's Electric Generating Units 

EtA AMPDHeat Commercial 

Nameplate Input Rating Operation 

Rating(MW) (MMBTU/hr) Year AMPD NOx Controls 

936 9100 1970 LNB, CC/SOFA, SCR (SCR added 11/2014) 

936 B9BS 1971 LNB, CC/SOFA, SCR (SCR added 11/2014) 

The Conemaugh Generating Station Units 1 and 2 incorporate supercritical Combustion 

Engineering tangential steam generators. Both of the Conemaugh Generating Station steam 

generators fire bituminous coal as their primary fuel, with EIA information indicating that the 

bituminous coal fuel is sourced primarily from Pennsylvania mines. As noted in the above table, 

SCR NOx controls were added to the two Conemaugh coal-fired steam generators in late 2014. 

EIA information indicates that the Conemaugh Generating Station is operated by GenOn 

Northeast Management Company, which merged with NRG in 2012. The Conemaugh 

Generating Station operates as an independent power producer and provides capacity, energy, 

and energy related services to the PJM regional transmission organization (RTO). 
233 


30463.201

Conemaugh Generating Station NOx Emissions Limitations and Performance 

As noted in Table 8 above, the Conemaugh Generating Station Units I and 2 are currently 

equipped with low NOx burners (LNBs), close-coupled and separated overfire air (CC/SOFA), 

and selective catalytic reduction systems (SCR) for control of NOx emissions. The LNBs and 

CC/SOFA NOx combustion controls were installed on the Conemugh Generating Station EGUs 

in the mid-1990s for compliance with the state of Pennsylvania's NOx RACT requirements. In 

accordance with Pennsylvania's previous NOx RACT requirements (see discussion of 

Pennsylvania's 2016 revision to its NOx RACT regulation requirement below), the Conemaugh 

Generating Station EGU's were subject to NOx emission rate limits of 0.45 lb!MMBTU, on a 

30-day rolling average. AMPD data indicates that the Conemaugh Generating Station eoal-frrcd 

EGUs have consistently been in compliance with these NOx RACT limits. 

Also as indicated in Table 8 above, the Conemaugh Generating Station Units I and 2 are both 

equipped with SCR for control ofNOx emissions. AMPD data indicates that the SCRs for both 

Conemaugh Generating Station coal-fired EGUs were installed in November, 2014. The 

following table consists of AMPD data that shows the ozone season average NOx emissions rate 

for the Conemaugh Generating Station before and after the installation of the SCRs on the 

Conemaugh electric generating units after the 2014 ozone season. 

Table 9 

Conemaugh Generating Station NOx Emissions 

2011 - 2016 Ozone Seasons 

ozone season Highest Dally Highest Hourly 

Average NOx NOx fvlass NOx Mass 

Rate Emissions Emissions 

Ozone season Year (lb/fviMBTU) (tons/day) (lb/hr) 

2011 0.3313 67.908 8061.8 

2012 0.3113 62.211 5835.6 

2013 0.3229 63.056 5963.3 

2014 0.3211 72.946 6906.1 

2015 0.1935 41.354 6313.4 

2016. 0.1402 32.837 5171.7 

• Preliminary Data for 20 l6 

li can be seen in the above Table 9, that while subsequent to the late 2014 installation of the 

Conemaugh generating unit SCRs there has been a significant reduction in ozone season average 

NOx emissions rate, the highest ozone season hourly NOx mass emissions remain relatively high 

after installation of the generating unit SCRs. In fact, the Conemaugh Generating Station's 
234 


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ozone season peak hourly NOx mass emissions after SCR installation (5171.7 lb/hr in 2016) falls 

within the range of NOx mass emissions shown by STI modeling to have significant impact on 

Delaware's ambient ozone, as shown in the following table: 

Table 10 

Conemaugh Generating Station NOx Emissions and STI Modeled Impact 

Associated with Delaware 2011 8-hr Ozone NAAQS Exceedance 

Range of Hourly NOx Mass 

Date of Del aware 8· STI Model Emissions Estimated to be 

hour Ozone NAAQS Peak Ozone Associated with Ozone 

£xceedance Impact (ppb) Exceedance (tons/hr) 

June 8, 2011 1.91 581 B. 7- 6083.5 

June 9, 2011 1.28 5008.4- 5792.3 

July 12, 2011 0.94 3540.9. 5839.8 

July 22, 2011 0.77 4847.0. 5451.2 

Pennsylvania has recently finalized a revision to its NOx RACT regulation, Title 25. 

Environmental Protection/ Part !. Department of Environmental Protection/ Subpart C. 

Protection of Natural Resources, Article Ill Air Resources! Chapter 129. Standards for Sources, 

Additional RACT Requirements for Major Sources of NOx and VOCs. (20) The revisions to 

Pennsylvania's NOx RACT regulation become effective in 2017. The revision to Pennsylvania's 

NOx RACT regulation revises the NOx RACT provisions that arc applicable to the Conemaugh 

Generating Station Units 1 and 2. 

The steam generators associated with the Conemaugh Generating Station Units 1 and 2 are both 

coal-fueled, tangential-furnace configuration combustion units with heat input ratings of greater 

than 250 MMDTU/hr and are both equipped with SCR NOx emission controls. In accordance 

with the requirements of §!29.97 of the revised Pennsylvania NOx RACT regulation, the 

presumptive NOx RACT emission rate limitation for the Conemaugh Generating Station's coalfired EGUs, with a SCR system flue gas inlet temperature equal to or greater than 600°F, is 0.12 

lb/MMBTIJ, and compliance with this limit is also required in the event of SCR system by-pass, 

as follows: 

§129. 97(g)(viii) For a coal-fired combustion unit with a selective catalytic reduction system 

operating with an inlet temperature equal to or greater than 600°F, 0.12 lb NO,Imillion Btu 

heat input. Compliance with this emission limit is also required when by-passing the selective 

catalytic reduction system. 
235 


30463.203

In accordance with §129.100 of the revised Pennsylvania NOx RACT regulation, compliance 

with the revised regulation's emission rate limit provisions of §129.97(g)(viii) are on a rolling 

3 0-day average. 

Additionally, under §129.98 of the revised Pennsylvania NOx RACT regulation, the owner or 

operator of a major NOx emitting facility subject to the regulation with at least one air 

contamination source subject to a NOx RACT emission limitation in §129.97 of the regulation 

that can not meet the applicable limitation may elect to meet the limitation by averaging NOx 

emissions on either a facility-wide or system wide basis using a 30-day rolling average. The 

regulation requires that system-wide averaging must be among sources under the common 

control of the same owner or operator within the same ozone non-attainment area of 

Pennsylvania. 

§129.98(a) The owner or operator of a major NOx emitting facility subject to § 129.96 

(relating to applicability) that includes at least one air contamination source subject to a NO, 

RACT emission limitation in§ 129.97 (relating to presumptive RACT requirements, RACT 

emission limitations and petition for alternative compliance schedule) that cannot meet the 

applicable NOx RACT emission limitation may elect to meet the applicable NOx RACT 

emission limitation in § 129.97 by averaging NOx emissions on either a facility-wide or 

system-wide basis using a 30-day rolling average. System-wide emissions averaging must be 

among sources under common control of the same owner or operator within the same ozone 

nonattainment area in this Commonwealth. 

Compliance with the averaging provisions of the revised Pennsylvania NOx RACT regulation is 

determined as follows: 

§129.98(e) The owner or operator shall calculate the alternative facility-wide or system-wide 

NOx RA CT emissions limitation using a 30-day rolling average for the air contamination 

sources included in the application for the operating permit modification or plan approval, if 

otherwise required, submitted under subsection (b) by using the following equation to sum the 

emissions/or all of the sources included in the NOx emissions averaging plan: 

Where: 

Eiaotual = The actual NOx mass emissions, including emissions during start-ups, shutdowns 

and malfunctions, for air contamination source ion a 30-day rolling basis. 

Eiallowable = The allowable NOx mass emissions computed using the allowable emission rate 

limitations for air contamination source ion a 30-day rolling basis specified in § 129.97. If an air contamination source included in an averaging plan is subject to a numerical emission 

rate limit that is more stringent than the applicable allowable emission rate limitation In§ 
236 


30463.204

129.97, then the numerical emission rate limit shall be usedfor the calculation of the 

allowable NOx mass emissions. 

n = The number of air contamination sources included in the NOx emissions averaging plan. 

Additionally, the Conemaugh Generating Station is subject to the EPA's CSAPR Update 

requirements as part of a federal CSAPR Update Federal Implementation Plan (FIP). Under the 

CSAPR Update, the Conemaugh Generating Station Unit I will have an ozone season NOx mass 

emissions allocation of 859 tons/allowances, and Unit 2 will have an ozone season NOx mass 

emissions allocation of878 tons/allowances. However, these values are not hard caps; the values 

only represent the unit allocations. The units/facility may exceed these ozone season allocations 

by obtaining and surrendering allowances equal to their actual ozone season NOx emissions. 

Additional penalties are applied only in the event that the state consumption of allowances 

exceeds the state allocation. Under the CSAPR Update FIP, in the event that a state exceeds its 

allocation and variability limit, the units responsible for the exceedance are to be identified and 

penalized by application of a higher allowance surrender ratio for those exceedances. The ozone 

season provisions of the CSAPR Update have no provisions regarding control of short term 

(hourly, daily, 30-day, etc) NOx emission rates or mass emissions, and therefore offer little 

protection from the impact of short term events of high NOx mass emissions. 

There are a number of conditions that could occur during the operation of a large EGU facility 

where a facility owner/operator may find it advantageous to operate (or continue operation) tor a 

limited period of time with the SCR NOx emission controls out of service or operating at low 

efficiency levels. This assumes that the owner/operator has the ability to comply with NOx 

emissions caps by acquiring the sufficient allowances and can meet long term NOx emission rate 

limits through utilization of averaging provisions. Problems with the SCR (including damage, 

pluggage, etc), SCR ancillary support systems and controls, and boiler draft systems could 

impact the EGU operation to the point that the SCR must be taken out of service in order to 

continue EGU operation at load. There may also be some economic incentive to continue 

operation in this manner, as the economic impact of taking a forced outage (and associated fees) 

and/or replacement power costs could make the purchase of additional NOx compliance 

allowances a relative bargain. 

Additionally, there are times in the eastern United Stales during the summer months where the 

grid energy costs are in the multi-hundred dollar per megawatt-hour range for a number of 

consecutive hours. Under certain conditions, these periods of very high grid energy costs (when 

combined with relatively low cost NOx compliance allowance costs) may provide economic 

incentive to operate with the SCR controls out of service. (Again, this assumes that the 

owner/operator has the ability to comply with NOx emissions caps by acquiring sufficient 

allowances and can meet long term NOx emission rate limits through utilization of averaging 
237 


30463.205

provisions.) The economic incentive could potentially be realized by eliminating SCR reagent 

and atomizing media usage and costs with the SCR out of service, along with realizing an 

incremental reduction in EGU auxiliary loads (resulting in a net increase in EGU output for sale 

due to a reduction in unit draft fan loading for EGUs equipped with SCR bypass, reduction in 

reagent pump loading, etc). During periods of high energy costs on the grid, the combined 

reduction in reagent and atomizing media consumption and incremental increase in energy sales 

may more than offset the need to surrender additional NOx compliance allowances. 

Potential Impact of the Absence of Short Term NOx Emission Rate Averaging Times 

Unlike the EPA's CSAPR Update rules, Pennsylvania's revised NOx RACT regulation 

established a presumptive NOx RACT rate of 0.12 lb/MMBTU for SCR-equipped coal-fired 

EGUs beginning in 2017. However, Pennsylvania's new RACT regulation pennits compliance 

with the 0.12 lb/MMBTU NOx rate limit by averaging NOx emissions among units at a common 

facility (or other facilities if under control of a common owner or operator, and the subject 

facilities are located in the same nonattainment zone) on a 3 0-day rolling average compliance 

basis. 

If both of the Conemaugh Generating Station coal-fired EGUs (or the Conemaugh facility's NOx 

emission rate average) met a 0.12 lb/MMBTU limit on an hourly basis, and each operated at its 

maximum rated heat input, the hourly NOx mass emissions from the Conemaugh Generating 

Station would be approximately 2,170 lblhr. As shown in Table I 0, this 2,170 lblhr rate ofNOx 

mass emissions from Conemaugh is lower than the range of hourly NOx emissions values 

associated with the events shown by STI modeling to have a significant impact on Delaware's 

ambient ozone. However, as noted above, the revised Pennsylvania NOx RACT regulation 

provides for a 0.12 lb/MMBTU limit on a 30-day averaging period, not an hourly averaging 

period. 

When taken in conjunction with Pennsylvania's NOx RACT regulations provlSlons under 

§129.98 which allows averaging of unit emissions at a common facility, it is possible that the 

Conemaugh Generating Station could emit NOx at rates well above 2,170 lblhr for one or more 

days and still maintain compliance with the 0.12 lb/MMBTU, 30-day rolling average. This 

means the Conemaugh Generating Station can emit NOx mass emissions in the upper range of 

values of hourly NOx mass emissions associated with the events shown by STI modeling to have 

a significant impact on Delaware's ambient ozone, while still maintaining compliance with the 

O.J2lb/MMBTU, 30-day rolling average, NOx emission rate limit. 

The following is an example addressing a worst case situation, where the total 30-day heat input 

was low in conjunction with a single 24-hour day where the NOx mass emissions were at their 
238 


30463.206

potential highest values. for the example, it is assumed that the Conemaugh Generating Station 

would emit NOx at rates representative of no SCR control operation for a 24-hour period during 

an ozone season while still remaining in compliance with Pennsylvania's revised RACT 

regulation. The AMPD preliminary 2016 ozone season operating heat input data was selected to 

form the basis for this example, as it is anticipated that it would be most representative of the 

Conemaugh Generating Station facility and unit operations in the near future. For the purposes 

of this example, it is assumed that the Conemaugh Generating Station owner/operator choses to 

comply with the Pennsylvania NOx RACT limits using the facility averaging the provisions of 

the RACT regulation. 

To estimate a high daily NOx mass emission for Conemaugh, the 2011 ozone season average 

NOx emission rate (0.3313 lb/MMBTU) was selected as representative of facility operation 

without SCR NOx controls. Operation of both coal-fired EGUs at maximum hourly heat 

input capacity (18,085 MMBTU/hr) for 24 hours (for a total of 434,040 MMBTU) was also 

assumed. This gives an estimated high daily NOx mass emissions of71.9 tons/day. 

For the 2016 ozone season, the AMPD data for the Conemaugh Generating Station indicated 

that the lowest 30-day total heat input was 5,085,049 MMBTU. (It should be noted that the 

heat input value of 5,085,049 MMBTU for 30 days represents a heat input capacity factor of 

39%). The estimated NOx emissions that would have been emitted combusting 5,085,049 

MMBTU at an average NOx emission rate of 0.12 lb/MMBTU is 305.1 tons. (This is the 

allowable NOx mass emissions for the 30-day average in ac.cordance with the provisions of 

the Pennsylvania NOx RACT for compliance purposes.) 

The required Conemaugh Generating Station facility average NOx emission rate required to 

comply with the 0.12 lb/MMBTU 30-day average and accounting for the high daily NOx 

mass emissions value of71.9 tons/day for one day is estimated to be: 

((305.1 tons- 71.9 tons) * 2000 lblton) I (5,085,049 MMB1'U- 434,040 MMBTU) 

= 0.1003/b/MMBTU 

Tbe estimated required average NOx emission rate of 0.1003 lb/MMBTU, 30-day average, 

appears to be within the capabilities of most coal-fired EGUs equipped with SCR NOx 

controls when those controls are consistently operated in accordance with good pollution 

control practices. 

Another example would be to base the highest daily NOx mass emissions on the highest actual 

daily heat input for the 2016 ozone season instead of using a maximum potential heat input. As 

with the previous example, the highest NOx daily NOx mass emissions would be estimated 

assuming no SCR operation for determining the NOx emission rate (in 1b/MMBTU), but tbe 

maximum daily heat input would be based on actual AMPD 2016 ozone season operating heat 

input data. It is again assumed that the AMPD 2016 ozone season operating heat input data is 

most representative of future operation and the Conemaugh Generating Station owner/operator 

choses to comply with the Pennsylvania NOx RACT limits using the facility averaging 

provisions of the RACT regulation. 
239 


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To estimate a high daily NOx mass emission for Conemaugh, the 2011 ozone season average 

NOx emission rate (0.3313 lb/MMBTU) was selected as representative of facility operation 

without SCR NOx controls. Preliminary AMPD data for the 2016 ozone season indicated 

that the highest daily heat input for the Conemaugh Generating Station occurred on August 

8, 2016 with a value of 403,169 MMBTU. A heat input of 403,169 MMBTU and a NOx 

emission rate of 0.3313 lb/MMBTU gives an estimated high daily NOx mass emissions of 

66.8 tons/day. 

For the 2016 ozone season, the AMPD data for the Conemaugh Generating Station indicated 

that the lowest 30-day total heat input was 5,085,049 MMBTU. (lt should be noted that the 

heat input value of 5,085,049 MMBTU for 30 days represents a heat input capacity factor of 

39%). The estimated NOx emissions that would have been emitted combusting 5,085,049 

MMBTU at an average NOx emission rate of 0.12 lb/MMBTU is 305.1 tons. (This is the 

allowable NOx mass emissions for the 30-day average in accordance with the provisions of 

the Pennsylvania NOx RACT for compliance purposes.) 

The required Conemaugh Generating Station facility average NOx emission rate required to 

comply with the 0.12 lb/MMBTU 30-day average and accmmting for the high daily NOx 

mass emissions value of 66.8 tons/day for one day is estimated to be: 

((305.1 tons- 66.8 tons) * 2000 lblton) I (5,085,049 MMBTU- 403,169 MMBTU) 

= 0.1018lb!MMBTU 

The estimated required average NOx emission rate of 0. I OJ 8 lb/MMBTU, 30-day average, 

also appears to be within the capabilities of most coal-fired EGUs equipped with SCR NOx 

controls when those controls are consistently operated in accordance with good pollution 

control practices. 

Another example is to assume that the Conemaugh Generating Station emits NOx at rates 

representative of no post-combustion controls for an 8-hour duration, a period of time of high 

NOx emissions previous discussed to coincide with significant impact on downwind 8-hour 

ozone NAAQS compliance. For this example, the Conemaugh Generating Station was assumed 

to operate for an 8 hour period at the maximum heat input capacity and at a NOx emissions rate 

representative of no post-combustion control operation. As in the previous examples, it is again 

assumed that the AMPD 2016 ozone season operating heat input data is most representative of 

future operation and the Conemaugh Generating Station owner/operator choses to comply with 

the Pennsylvania NOx RACT limits using the facility averaging provisions of the RACT 

regulation. 

To estimate a high 8-hour potential NOx mass emission for Conemaugh, the 2011 ozone 

season average NOx emission rate (0.3313 lb/MMBTU) was selected as representative of 

facility operation without SCR NOx controls. The highest heat input for an 8-hour period 

was calculated by multiplying the facility's heat input capacity by 8, for a total heat input of 

144,680 MMBTU. Multiplying heat input of I 44,680 MMBTU and a NOx emission mte of 

0.3313 lb/MMBTU gives an estimated 8 hour NOx mass emissions of 24.0 tons. 
240 


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For the 2016 ozone season, the AMPD data for the Conemaugh Generating Station indicated 

that the lowest 30-day total heat input was 5,085,049 MMBTU. (It should be noted that the 

heat input value of 5,085,049 MMBTU for 30 days represents a heat input capacity factor of 

39%). The estimated NOx emissions that would have been emitted combusting 5,085,049 

MMBTU at an average NOx emission rate of 0.12 lb/MMBTU is 305.1 tons. (This is the 

allowable NOx mass emissions for the 30-day average in accordance with the provisions of 

the Pennsylvania NOx RACT for compliance purposes.) 

The required Conemaugh Generating Station facility average NOx emission rate required to 

comply with the 0.12 lb/MMBTU 30-day average and accounting for the high daily NOx 

mass emissions value of 66.8 tons/day for one day is estimated to be: 

((305.1 tons- 24.0 tons)"' 2000 lb/ton) I (5,085,049 MMBTU -144,680 MMBTU) 

= 0.1138 lb/MMBTU 

The estimated required average NOx emission rate of 0.1138 lb/MMBTU, 30-day average, 

also appears to be within the capabilities of most coal-fired EGUs equipped with SCR NOx 

controls when those controls are consistently operated in accordance with good pollution 

control practices. The preliminary AMPD data for the 2016 ozone season indicated that the 

Conemaugh Generating Station had 27 occasions with a facility 30-day average NOx 

emission rate less than O.ll38lb/MMBTU. It should be recalled that the 0.12lb/MMBTU 

NOx emission rate limit provisions of the revised Pennsylvania RACT regulation do not take 

effect until 2017 and that the Conemaugh facility was not required to meet such stringent 

NOx emission rate requirements. 

These examples for the Conemaugh Generating Station demonstrate that it is likely that the 

facility has the ability to exhibit periods of relatively high NOx emissions (NOx emission levels 

shown by the STI modeling as significantly contributing to Delaware's ambient ozone) while 

still being able to remain in compliance \vith the NOx emission rate and facility averaging 

provisions of Pennsylvania' new NOx RACT regulation, Title 25. Environmental Protection! 

Part l Department of Environmental Protection! Subpart C. Protection of Natural Resources, 

Article III Air Resources/ Chapter 129. Standards .for Sources, Additional RACT Requirements 

for Major Sources of NOx and VOCs. 

Delaware does not agree that a 30-day averaging period, as provided for in Pennsylvania's 

revised NOx RACT regulation, is appropriate in conjunction with the 0.12 lb/MMBTU NOx rate 

limit to protect downwind areas with regards to the 2015 8-hour ozone NAAQS. It is 

Delaware's opinion that the use of a 30-day rolling average for an emissions limitation is not 

sufficient to be protective of short term NAAQS such as the 2008 and 2015 8-hour ozone 

NAAQS, and can potentially have a negative impact on Delaware's ability to be in compliance 

with the short term air quality standards of the 2008 and 2015 8-hour ozone NAAQS. 
241 


30463.209

Short Term NOx Emission Limits Are Required To Assist in Reducing the Downwind 

Impact of Conemaugh Generating Station NOx Emissions 

The information discussed above indicates that currently applicable NOx emission rate limits and 

applicable EGU cap-and-trade NOx control programs, that were designed to limit annual and 

seasonal NOx emissions, have not served to limit the Conemaugh Generating Station's NOx 

emissions to levels such that those emissions do not significantly contribute to downwind 

exceedances of short term air quality standards, thereby imperiling the public health and welfare 

in downwind states. The modeling performed by STI tends to support this conclusion by 

quantifying the impact of the Conemaugh Generating Station's NOx emissions on ozone levels 

measured at Delaware's monitoring locations. 

Pennsylvania has recently revised its NOx RACT regulation. In accordance with the provisions 

of the revised NOx RACT regulation, beginning in 2017, the Conemaugh Generating Station 

coal-fired EGUs will be subject to a NOx emission rate limit of 0.12 lb/MMBTU, and in 

accordance with provisions of the revised NOx RACT regulation may elect to comply with the 

limit by averaging the emissions of the two coal-fired EGUs at the facility and on a 30-day 

rolling average basis. However, as discussed earlier, the 30-day averaging provisions of the 

revised NOx RACT regulation do not ensure that that the Conemaugh EGU facility will not emit 

NOx emissions at levels that have been shown by STI modeling to significantly impact 

Delaware's ambient ozone while still remaining in compliance with applicable NOx emission 

limitations. Sufficiently stringent NOx emission rate limits based on shorter term averaging 

periods (such as 24-hour or less) are needed to help ensure that the Conemaugh Generating 

Station does not significantly impact downwind jurisdictions' ability to comply with the 8-hour 

ozone NAAQS. 

It is interesting to note that since the installation of the SCR NOx controls at the Conemaugh 

Generating Station in late-2014, AMPD data does not appear to indicate that the SCRs have 

consistently been operated reflective of good pollution control practices in the subsequent 2015 

and 2016 ozone seasons. While it is uncertain why the Conemaugh Generating Station 

owners/operators have chosen to operate their SCR controls in this fashion, it is suspected that 

for some facilities in similar circumstances that changing conditions in the power generation 

industry have resulted in conditions where NOx cap-and-trade compliance allowances are 

available at prices that make it uneconomic to operate existing NOx controls for compliance with 

cap-and-trade NOx control programs. Additional regulatory incentive is required to ensure that 

the existing EGU NOx controls are consistently operated in accordance with good pollution 

control practices for all such facilities. 

Delaware is concerned that the NOx mass emission limits associated with CSAPR Update will 

be ineffective in properly protecting the public health and welfare in downwind states at all times 

with regards to the 8-hour ozone NAAQS. It is recognized that the provisions of the CSAPR 

Update provide for more restrictive annual and seasonal NOx mass emissions than previous 
242 


30463.210

rules, and that the CSAPR Update program also provides more restrictive allowance trading 

provisions than previous rules. However, the provisions of the CSAPR Update do not provide 

any limitations on the Conemaugh Generating Station's NOx mass emissions for any period 

shorter than seasonal (such as hourly or daily). The lack of sufficiently stringent short term NOx 

emission rates facilitates the continued operation of the Conemaugh Generating Station's coalfired EGUs with inadequate NOx emission control and resulting high NOx emissions over short 

periods of time. The lack of sufficiently stringent short term emissions limitations will therefore 

help facilitate the Conemaugh Generating Station's NOx mass emissions at levels that will 

continue to support non-compliance with the 8-hour ozone NAAQS in Delaware, and thereby 

continue to impact the health and welfare of Delaware's citizens. 

In order to be protective of short term air quality standards, such as the 8-hour ozone NAAQS, it 

is Delaware's opinion that it is necessary to establish emissions limits with appropriate 

magnitudes and averaging periods for the Conemaugh Generating Station that ensure that the 

NOx emissions are adequately controlled during any particular time period. It is Delaware's 

opinion that selection of a short term NOx emission rate limit averaging period of no greater than 

24 hours is also appropriate to address the short term aspects of compliance with a short term 

NAAQS, such as the 8-hour ozone NAAQS. 

Requested EPA Action 

Even with extensive reduction of NOx emissions from EGU and other sources located in the 

state of Delaware, Delaware continues to experience excecdances of the 8-hour ozone 

NAAQS. Modeling conducted by the EPA indicates that emissions from EGUs located in 

upwind states, including the state of Pennsylvania, are major contributors to Delaware's ongoing 

8-hour ozone NAAQS compliance issues. Modeling performed for Delaware by Sonoma 

Technologies Inc, (STI) indicates that the Conemaugh Generating Station, located in the upwind 

state of Pennsylvania, itself significantly impacts the level of ozone in Delaware's ambient air. 

The Conemaugh Generating Station's impact on Delaware's 8-hour ozone NAAQS compliance 

has been estimated to occur even though the Conemaugh Generating Station's coal-fired EGUs 

have been in compliance with their permit NOx emissions rate limits and applicable cap-andtrade NOx emission control programs. These permit NOx emission rate limits and long term 

(annual, seasonal) cap-and-trade NOx control programs have not provided the level of short term 

NOx emission limits necessary to be supportive of the short term, 8-hour ozone 

NAAQS. Because the CSAPR Update will continue to attempt to control NOx mass emissions 

on an annual and seasonal basis, these programs are also expected to permit an EGU facility such 

as the Conemaugh Generating Station to emit NOx at high levels over any given short term 

period while the subject EGU facility remains in overall compliance with the annual and 

seasonal programs. 
243 


30463.211

The historic compliance flexibility provided to the Conemaugh Generating Station by applicable 

NOx cap-and-trade programs and relatively high, long term NOx emission rate limitations have 

permitted the Conemaugh Generating Station owner/operator the flexibility to operate without 

the installation of post-combustion NOx controls similar to those that have been in place for a 

number of years at other coal-fired EGUs. In fact, even after the installation of SCR NOx 

controls on the Conemaugh Generating Station coal-fired EGUs in late 2014, the compliance 

flexibility appears to have allowed the owner/operator to remain in compliance with applicable 

NOx emission rate and cap-and-trade NOx mass emission limitations without the need to operate 

the SCR controls at their best N Ox contro I capacity in subsequent ozone seasons. 

Pennsylvania has recently revised its NOx RACT regulation, Title 25. Environmental 

Protection! Part 1. Department of Environmental Protection! Subpart C. Protection of Natural 

Resources, Article Ill Air Resources/ Chapter 129. Standards for Sources, Additional RACT 

Requirements for Major Sources ofNOx and VOCs. The revision to Pennsylvania's NOx RACT 

regulation will be effective beginning in 2017, and includes NOx emissions rate limits that will 

be applicable to the Conemaugh Generating Station coal-fired EGUs. This includes a NOx 

emission rate limit of0.12 lb/MMBTU, provisions to allow averaging among all ofthe units at 

the facility, 81'\d provisions to have compliance based on a rolling 30-day average basis. As 

discussed earlier in this petition, the 30-day averaging provisions of the regulation give the 

Conemaugh Generating Station the ability to emit NOx at a level shown by STI modeling to 

significantly impact Delaware's ambient ozone while remaining in compliance with the 

provisions of the revised Pennsylvania NOx RACf regulation. 

In order to be protective of short lerm air quality standards, such as the 8-hour ozone NAAQS, it 

is Delaware's opinion that it will be necessary to establish NOx emissions limits with appropriate 

magnitudes and averaging periods that ensure that the NOx emissions are adequately controlled 

during any particular time period. Therefore, Delaware is hereby petitioning the EPA under 

section 126(b) of the Clean Air Act to find that the Conemaugh Generating Station, located in 

Pennsylvania, emits air pollutants in violation ofthe prohibition of section IIO(a)(2)(D)(i) of the 

Clean Air Act, and to require the Conemaugh Generating Station to limit short term NOx 

emissions to levels that are protective of the 8-hour ozone NAAQS in downwind areas such as 

Delaware. 

References 

1) 40 CPR Part 50, 51, 52, et al. National Ambient Air Quality Standards for Ozone; Final 

Rule Federal Register, Vol. 80, No. 206, October 26, 

2015 h!.tru_://www.gpo.gov/fdsys/pkg/FR-2015-1 0-26/pd[/2.Ql~::f.6594.pdf 

2) Approval and Promulgation of Air Quality Implementation Plans; Delaware; Section 

11 O(a)(2) Infrastructure Requirements for the 1997 8-Hour Ozone and the 1997 and 
244 


30463.212

2006 Fine Particulate Matter National Ambient Air Quality Standards, Federal Register 

No!. 76, No. 150 /Thursday, August4, 2011/Rules and Regulations, page 47069, 

http://www.gpo.gov/fdsys/pkg/FR-2011-08-04/pdf/2011-19694.pdfllpagt~= 1. 

3) Clean Air Act, Title I- Air Pollution Prevention and Control, Part A- Air Quality and 

Emissions Limitations, Section 126, http://www.epa.gov/air/caa/titlc l.html 

4) Delaware Air Quality Monitoring Network, Reports, 

http://apps.dnrec.delaware.gov/ AirMonitoring/ 

5) Revision to State Implementation Plan for Ozone, June 12, 2012, 

http://www.dnrec.delaware.gov/dwhsllnlo/Regs/Documents/DE 11 Oa2 0075 proposed. 

pQf 

6) 7 DE Admin. Code 1112, Control of Nitrogen Oxide Emissions, 

hltp://regulatiQD.s.delaware.gov/ AdminCode/title7/l 000/11 OOI1112.shtml#TopOfPage 

7) 7 DE Admin. Code 1146, Electric Generating Unit (EGU) Multi-Pollutant Regulation, 

http://regulations.delaware.gov/ AdminCode/title7/l 000/11 00/1146.shtml#Top0fPage 

8) 7 DE Admin. Code 1148, Control of Stationary Combustion Turbine Electric Generating 

Unit Emissions, 

)JJtp_;Lfm!~tH!l!:t!h.Q_\:!.!!~Y.<l.~gov/ Admin.Codc/title7/l 000/11 OO/ll48.shtml#J'opOfPage 

9) Overview of the Ozone Transport Commission (OTC) NOx Budget Program, 

hltp://www.epa.gov/airmarkets/progsregs/nox/otc-overview.html 

1 0) NO, Budget Trading Program/NOx SIP Call, 2003-2008, 

http://www.epa.gov/airmarkets/progsregs/nox/sip.html 

11) Clean Air Interstate Rule (CAIR), http://www.cpa.gov/cair/ 

12) Cross-State Air Pollution Rule (CSAPR), http://www.epa.gov/crossstaterule/ 

13) 40 CFR Parts 52, 78, and 97, Cross-State Air Pollution Rule Update for the 2008 Ozone 

NAAQS; Proposed Rules, Federal Register Vol. 80, No. 232, Thursday December 3, 

2015, https://www.gpo.gov/fdsyslpkg/FR-20 15-12-03/pdf/20 J)-29796.pdf 

14)40 CFR Parts 52, 78, and 97, Final Rule - Cross-State Air Pollution Rule Update for 

the 2008 Ozone NAAQS, https;//www3.epu.gov/ainnarkets/CSAPRU!CrossState%20Air%20l'ollution%20Rule%20Update%20for%20the%202008%200zone%20 

}IAAQS%202060%20AS05%20FRM.pdf 

15) United States Environmental Protection Agency's Air Markets Program Data (EPA's 

AMPD)- EGU emissions data extracted from the EPA's AMPD using various search 

criteria as required. http://ampd.epa.gov/ampd/QueryToolie.hlml 

16) United States Environmental Protection Agency Cross-State Air Pollution Rule, 

Technical Information and Support Documents, Air Quality Modeling Final Rule TSD, 

Contributions of the 8-hour ozone and 24-hour PM2.5 from each state to each 

monitoring site, 

http://www.epa.gov/crossstaterulc/pdfs/C_S.APR ... ..OzqJ!te~20all<rt91.91'M~.5 Contributio 

ns.xls 

17) Technical Suppmt Document (TSD) for the Transport Rule, Docket ID No. EPA-HQOAR-2009-0491, Analysis to Quantify Significant Contribution, 

http:f/www.epa.gov/crossstalerulc/pdf.~/TSD analysis to quantify significant contribut 

ion 7-8-IO,pgf 

18) CAMx Modeling Documentation, Sonoma Technology Inc., October 24, 2016 letter 

from Kenneth Craig to Ronald Amirikian, with attachment 
245 


30463.213

19) U.S. Energy Information Administration, http;//~~.}",CiQ.:R().Yf£k~!r].cjty/data/dctuils!ata.html 

20) Pennsylvania Bulletin/46 Pa B. 2036/ Saturday April 23, 2016/ Rules and Regulations/ 

Title 25 Environmental Protection/ Environmental Quality Board/25 PA. Code CHS. 

121 and 129 httn:LL\VW.YI'JJJ!l:mllctin.cQ_m/s_~.\!L~data/yg!'.f.§j46-J7 /694.html 
246 


30463.214

ilnitrd ~tatcs ~mate 

The Honorable Scott Pruitt 

Administrator 

WASHINGTON, DC 20510 

March 12,2018 

Environmental Protection Agency (EPA) 

1200 Pennsylvania Ave., NW 

Washington, DC 20004 

Dear Administrator Pruitt: 

We write to request information about EPA's November 16, 2017 proposal to repeal air emission 

standards for some of the dirtiest heavy-duty trucks on the road. 1 Glider trucks, also known as 

"zombie trucks,"2 look like new trucks on the outside-and are advertised and sold as new-but 

are equipped with old, high-polluting diesel engines on the inside. According to internal agency 

research not released lUltil after EPA published this proposal, a new 2017 glider truck can emit 

up to 450 times the particulate matter (PM) pollution, and up to 43 times the nitrous oxide (NO,) 

pollution, of model year 2014 and 2015 trucks.3 Other EPA analyses concluded that, ifleft 

unregulated, glider vehicle emissions could prematurely kill thousands of people, and increase 

instances ofiWlg cancer, chronic IWlg disease, heart disease, and severe asthma attacks.4 We are 

also deeply troubled that this proposal, which appears to largely benefit a single company, was 

influenced by an industry-funded "study" that is currently the subject of an official investigation 

into research misconduct for failing to adhere to basic scientific standards.5 We urge you to 

withdraw this dangerous, legally questionable proposal immediately. 

EPA and the National Highway Traffic Safety Administration (NHTSA) have worked closely 

with states, vehicle manufactures, environmental groups, and other interested stakeholders to 

develop federal standards that reduce vehicle pollution and improve fuel-economy. An important 

focus of these regulations has been medium- and heavy-duty vehicles, which, despite 

constituting only 5% of the domestic vehicle fleet, produce 20% of all transportation-sector 

emissions. EPA and NHTSA finalized an initial round of greenhouse gas and fuel economy 

standards for these vehicles in 2011, avoiding 270 million tons ofCOz emissions and saving 

consumers $50 billion at the pump.6 In 2016, the agencies completed the second rolUld of 

regulations ("Phase 2"), setting standards for these highly-polluting vehicles out to model year 

2027. These carefully crafted rulemakings were the result of"more than 400 meetings with 

1 82 Fed. Reg. 53,442 {Nov. 16, 2017). 

'See Rachel Muncrief & Josh Miller, "Scott Pruitt's EPA wants to resurrect the dirty diesel," INTL CoUNCIL ON 

CLEAN TRANSP., Dec. I, 2017, https://www.theicctorglbloglstafflglider-proposal-means-resurrecting-dirty-diesel. 3 EPA NATL. VEHIC~E & FUE~ EMISSIONS LAB., "Chassis Dynamometer Testing of Two Recent Model Year HeavyDuty On-Highway Diesel Glider Vehicles" {Nov. 20, 2017) at 3 (hereinafter "OTAQ Study"], 

bttps://www.regulations.gov/documeilt?D=EPA-HQ-OAR-2014-0827-2417. 4 Response to Comments at 1877, https://nepis.epa.gov!ExeJZyPDF.cgi/PIOOP8IS.PDF?Dockey=PIOOP8lS.PDF. 

' https://www. washingtonpost.cornlnews/energy-environment/wp/20 18/02121/tennessee-tech·witbdraws·indusiJy• 

funded-study-used-to-back-controversial-epa-truck-rulel. 6 76 Fed. Reg. 57,106 (Sept. 15, 2011). 
247 


30463.215

manufacturers, suppliers, trucking fleets, dealerships, state air quality agencies, nongovernmental organizations ..• and other stakeholders," as well as feedback received from over 

200,000 public comments, including in two public hearings.' In contrast, EPA's proposal, which 

exempts some of the worst-polluting trucks from being subject to air pollution limits, was 

reportedly developed at the behest of politically well-connected representatives of glider 

manufacturers. 8 

Glider trucks used to be a niche industry, with less than a thousand vehicles produced each 

year-primarily for engine-salvage purposes when relatively new trucks got in collisions. By 

2015, however, "significantly over 10,000" glider vehicles were being sold, and almost every 

engine used to complete a glider truck is a rebuilt diesel engine originally manufactured between 

1998 and 2002.9 These engines are so dirty that, during EPA testing conducted in late 2017, the 

black soot belching from glider trucks clogged the filters of EPA's testing equipment, triggering 

a "PM equipment alarm" that prevented your technical staff from proceeding under normal 

testing conditions. 10 

EPA soon realized that, if left unregulated, by 2025 glider vehicles would create one-third of all 

NOr and PM emissions from heavy-duty trucks, even though they would only comprise 5% of 

the heavy-duty tractor fleet. In its 2016 "Phase 2" medium and heavy-duty rule, after taking two 

rounds of public comment on whether and how to address glider vehicles, EPA finalized 

regulations that ensured the emissions from glider trucks would be reduced while minimizing 

disruption to the few companies that manufacture glider kits and vehicles. 11 

Although no one from the glider industry challenged the final glider provisions in court, on May 

8, 2017, you personally met with representatives of Fitzgerald Glider Kits, LLC (Fitzgerald),12 

the self-proclaimed, "largest glider kit dealer in the country"13 and a political supporter of 

President Trump. 14 Two months after meeting with you, on July 10,2017, Fitzgerald and two 

other glider kit dealers sent you a petition seeking reconsideration of the glider requirements. 15 

You also spoke later that month with Congresswoman Diane Black, who has vocally supported 

the Fitzgerald Petition.16 

1 81 Fed. Reg. 73,478,73,481 {Oct. 25, 2016). 

'See, e.g., Eric Lipton, "How $225,000 Can Help Secure a Pollution Loophole at Trump's E.P.A.," N.Y. TIMES, 

Feb. I 5, 2018, https://www.nytimes.com/20 18/02/15/us/politics/epa-pollution-loophole-glider-trucks.btml. 

'See EPA memorandum from Charles Moulis to William Charmley, "Summary of Glider Production Data" {Nov. 

IS, 2017) atl-3, https://www.eenews.net/assets/2017/11/21/document_gw_05.pdf. 10 OTAQ Study, supra note 3, at14-15. 11 See 81 Fed. Reg. at73,941-46. 12 "EPA Administrator Scott Pruitt's scliedule, from April3, 2017 to Sept. 8, 2017," WASH. POST, Sept. 22,2017, 

https://www.washingtonpost.com/apps/glpagelpolitics/epa-administrator-scott-pruitts-schedule-from-april-3-2017-

to-sept-8-2017/2241/. 

13 See "About Fitzgerald," FITZGERALD GLIDER KITS, https://www.fitzgeraldgliderk.its.com/about-fitzgerald/. 14 See, e.g., Eric Lipton, "How $225,000 Can Help Secure a Pollution Loophole at Trump's E.P.A.," N.Y. TIMES, 

Feb. I 5, 2018, https://www .nytimes.com/20 18/02/1 5/us/politics/epa-pollution-loophole-glider-trucks.html. 

u Fitzgerald Glider Kits, LLC, et al., "Petition for Reconsideration" July I 0, 2017 [hereinafter "Fitzgerald 

Petition"], https:f/www.epa.govlsiteslproductionlfiles/2017-{)7/documentslhd-ghg-fr-fitzgerald-recons-petition2017-07-IO.pdf. 

16 https:/lblack.house.gov/medialpress-releases/epa-intends-roll-back-job-killing-regulation-hurting-small-businessowners. 
248 


30463.216

The Fitzgerald Petition lists three reasons why the glider truck industry should be exempt from 

modem pollution controls, most significantly that (I) EPA lacks statutory authority to regulate 

them; and that (2) a "recent study by Tennessee Technological University," as well as other 

factors, demonstrate that EPA based its conclusions about glider vehicle emissions on 

"unsupported assumptions," because glider vehicles actually performed as well or better from an 

emissions perspective than trucks with newer engines. 17 

On August 17, 20 17, you sent letters to Fitzgerald and the other petitioners, saying that the 

petition raised "!lignificant·questions" about EPA's legal authority "as well as the soundness of 

the EPA's technical analysis" regarding glider emissions. You told the petitioners that EPA had, 

for both legal and technical reasons, "decided to revisit" the glider rules. 18 

On November 9, 2017, you signed the proposal to repeal emission standards for glider vehicles, 

glider engines, and glider kits, and it was published on November 16, 2017. The EPA proposal 

states that the basis for repeal would be a legal reintetPretation of Clean Air Act (CAA) 

definitions, even though you appeared to acknowledge that your reinterpretation would be 

contrary to the CAA 's plain language. 19 As support for this strained interpretation of the law 

(which conflicts with Supreme Court precedenf~, EPA cites no legislative history or judicial 

precedent discussing congressional intent under the Clean Air Act. Instead, EPA's legal case 

rests entirely on the Automobile Information Disclosure Act of 1958, a sixty-year-old law 

regulating the placement of stickers on automobile windows, which has nothing to do with either 

air pPilution or heavy-duty trucks.21 

Moreover, since EPA issued the proposal, serious questions have been raised about the 

Tennessee Tech study that had caused you to question "the soundness of the EPA's technical 

analysis" and thus decide to revisit the glider rules.22 Whereas the technical information 

underlying the 2016 rule that EPA proposes to partially repeal was "based on a vast body of 

existing peer-reviewed work," the only "science" cited by EPA's proposal is the Tennessee Tech 

study, which claims that glider vehicles perform just as well-if not better than-vehicles with 

newer engines. 

17 Fitzgerald Petition, supra note IS, at :i-4. 11 https://www .epa.gov/sites/production/files/20 17-08/documentslhd-ghg-phase2-fitzgerald-gliders-ltr-20 17-08-

l?.pdf. 19 82 Fed. Reg. at 53,444-45 (citing CAA section 216(3)) ("Focusing solely on that portion of the statutory 

definition that provides that a motor vehicle is considered 'new' prior to the time its 'equitable or legal title' has 

been 'transferred to an ultimate purchaser,' a glider vehicle would appear to qualifY as 'new."'). 20 See, e.g., Massachusetts v. EPA, 549 U.S. 497, 532 (2007) (rejecting EPA's narrow interpretation of"pollutant," 

because Congress used broad definitional language in an "intentional effort to confer the flexibility necessary to 

forestall (] obsolescence,'' so that EPA could apply overarching congressional intent to "changing circumstances 

and scientific developments," including those Congress "might not have appreciated" specifically at the time). 21 82 Fed. Reg. at 53,445-46. 

n https://www .epa.gov/sites/productionlfiles/20 17-08/documentslhd-ghg-phase2-titzgerald-gliders-ltr-20 17-08-

l?.pdf. 
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On February 16,2018, the interim dean of the College of Engineering at Tennessee Tech 

lambasted the study's conclusions as "flif[etched" and "scientifically implausible;m and faculty 

called for an investigation into research misconduct.24 It has since come to light that the study 

was not subject to peer review and was paid for by Fitzgerald Glider Kits.l!l Tennessee Tech has 

suspended its relationship with Fitzgerald, has launched an official investigation into research 

misconduct, and has asked you to disregard the study pending the outcome of that investigation. 

There are ample reasons why EPA should suspect that the Tennessee Tech research was not 

conducted appropriately. The study was advertised as a product of Tennessee Tech's 

"Department of Civil and Environmental Engineering,''26 despite the fact that it was apparently 

not overseen, written, reviewed, or verified by any "qualified, credentialed engineering faculty 

member."27 And although the university president wrote a letter saying that all glider trucks 

"met the standard" for particulate matter,28 study participants spoke by phone with EPA technical 

staff on November 7, 2017 and admitted they had taken no numerical measurements of PM 

emissions-in fact, they had not collected PM samples at a//.29 

The College of Engineering's interim dean also highlighted a "devastating" critique of the study 

by the Environmental Defense Fund,30 which noted among other things that the research was 

conducted at a Fitzgerald-owned facility that does not appear to even have emissions-testing 

equipment that meets standard EPA testing procedures.31 

Absent from EPA's proposal is any mention of the agency estimates that every I 0,000 glider 

trucks can lead to the premature deaths of 1,600 people. 32 Absent is the fact that a single year of 

glider vehicle sales produces more than 10 times the NOx emissions ofVolkswagen's entire 

criminal defeat-device scheme. 33 Absent is a November 2017 study by EPA technical staff, 

which found that glider trucks with Fitzgerald-rebuilt engines emitted up to 450 times the PM 

23 Memorandum from Darrel Hoy, Interim Dean, College of Engineering (Feb. 16, 2018) at 2 [hereinafter "Hoy 

Memorandum"], available at https://www.documentcloud.org/documents/4378485-Combatting-Pollution·in· 

Diesel-Trucks-and-the.html#document/p217/a40S776. 24 TENN. TECH. FACULTY SENATE, "Faculty Senate Resolution on Fitzgerald Research Study" (Ian. 30, 20 18), 

https://www.tntech.edu/assets/usennedialfacultysenate/resolutions/Resolution _on _Fitzgerald_ Study _1-30· 

2018.pdf. 

"Kate Cook, "TTU investigating Fitzgerald study," HERALD-CITIZEN, Feb. II, 2018, http://herald· 

citizen.cornlstorieslttu-investigating-fitzgerald-study,2S943. 26 Letter from Phillip B. Oldham, President, Tenn. Tech. Univ., to Scott Pruitt, EPA Admin'r (Feb. 19, 2018) at!. 

" Hoy Memorandum, supra note 23, at 1-2. 28 Letter from Phillip B. Oldham, supra' note 26, at I. 29 Memorandum from George Mitchell, Mechanical Eng'r, Assessments & Standards Div., EPA Office ofTransp. & 

Air Quality, "EPA Teleconference with Tennessee Tech University Regarding Glider Test Report Summarized in 

Iune 2017 Letter; Tennessee Tech University- Summary of Heavy Duty Truck Study and Evaluation of the Phase 

II Heavy Duty Truck Rule," Nov. 13,2017 at2-3, available at https:J/www.regulations.gov/document?D=EPA· 

HQ-OAR-2014-0827·2416. 30 Hoy Memorandum, supra note 23, at2. 31 See generally Comments ofEDF, ELPC, and WE ACT (Jan. S, 2018) atl7-24, 

https://www.edf.org/sites/default/files/content/EDF%20ELPC%20WE%20ACT"Ao20Coniments%20on%20Gliders 

%20Proposed%20Repeal%201inal.pdf [hereinafter "EDF Comment'']. 32 Response to Comments atl877, https://nepis.epa.gov!Exe/ZyPDF.cgi/PIOOP8JS.PDF?Dockey=PIOOP81S.PDF. 

" Muncrief & Miller, supra note 2. 
250 


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pollution and 43 times the NO, pollution of modern trucks.34 Absent is the fact that, by 2025, 

EPA's proposal would undo--four times over-the interstate NO, reductions achieved by power 

plants under the Cross-State Air Pollution Rule.35 Absent are the economic costs that 

unrestricted glider vehicles impose on society, which EPA estimates at $6 to $14 billion every 

year.36 

In light of the severe adverse health effects of this rule, as well as the fact that EPA's decisionmaking relied on a study that was withdrawn pending the outcome of an official investigation 

into research misconduct, we ask that you immediately announce plans to withdraw this 

proposal. We additionally request that you please provide us with responses to the following 

questions and requests for information: 

1. Please provide us with non-redacted copies of all documents (including but not limited to 

emails, memos, meeting notes and correspondence) regarding the November 16,2017 

proposed repeal of emission standards and other requirements for heavy-duty glider 

vehicles, glider engines, and glider kits. This request includes, but is no/limited to: 

a. all documents concerning any and all EPA scientific analysis conducted in 

relation to the proposed repeal; 

b. all documents concerning any and all EPA legal analysis conducted in relation to 

the proposed repeal; and 

c. any documents submitted by EPA to OMB in 2017 that describe the costs and 

benefits associated with the proposed repeal. 

2. Please provide us with non-redacted copies of all documents (including but not limited to 

ernails, memos, meeting notes and correspondence) between EPA representatives and 

representatives of Fitzgerald Glider Kits, LLC, Harrison Truck Centers, Inc., and/or 

Indiana Phoenix, Inc. since January 20, 2017. For the May 8, 2017 meeting with 

Administrator Pruitt and representatives of Fitzgerald Glider Kits, please provide me with 

a list of all people who attended that meeting (including by telephone) and with copies of 

any materials sent in advance or left behind with EPA personnel. 

3. Please provide us with non-redacted copies of all documents written or received by EPA 

(including but not limited to emails, memos, meeting notes and correspondence) that 

relate to the Tennessee Tech's study on glider vehicle emissions, including, but not 

limited to, documents received from persons outside of EPA; any underlying data from 

the study;37 and any concerns about the study raised by EPA technical staff. 

34 OTAQ Study, supra note 3, at 14-IS. 

"EDF Comment, supra note 31, at II & n.41. 

l• 81 Fed. Reg. at 73,943. 

"See, e.g., Email from William Charmleyto Tom Brewer, "Re: TTU Follow-Up 11-28-2017," Dec. 1,2017 

(indicating EPA's possession of"more detailed emissions data" from Tennessee Tech, and ongoing EPA 

analyses), available at https:/lwww.regulations.gov/document?D=EPA·HQ-OAR-2014-0827-4272. 
251 


30463.219

4. Please provide us with non-redacted records of all meetings that EPA political appointees 

have taken with all individuals and corporations regarding the glider provisions of the 

Phase 2 Rule since January 20,2017. 

5. In October and November of201 7, EPA technical staff in the Office of Transportation 

and Air Quality (OT AQ) were conducting emissions testing on heavy-duty glider 

vehicles containing engines rebuilt by Fitzgerald. 38 The ultimate results of that research 

showed extraordinary levels of PM and NOx pollution from those vehicles-directly 

contradicting the purported results of the Tennessee Tech study. Your proposal mentions 

the Tennessee Tech study, but makes no mention of the EPA technical study 

contradicting it. Your proposal was also published on November 16, 20 I 7-four days 

before the OTAQ study was purportedly finalized (November 20), and six days before it 

was released to the public (November 22). Did you or any other political appointees 

know that OTAQ was conducting this study before it was finalized? If so, when were 

those political appointees aware of any final or preliminary results of the study? 

6. Your August I 7, 2017 Jetter to Fitzgerald Glider Kits states that Fitzgerald's petition 

"raises concerns that the EPA relied upon 'unsupported assumptions rather than data' 

with regard to the emission impacts of glider vehicles" and that, "In light of these issues, 

the EPA has decided to revisit the provisions in the Phase 2 Rule that relate to gliders." 

On what date on or before August 17,2017, had EPA "decided to revisit" those 

provisions, and on what specific bases were those decisions made? 

7. EPA concluded in 2016 that, if left unrestricted, emissions from heavy-duty glider 

tractors would represent "about one third of all NO, and PM emissions from heavy-duty 

tractors in 2025." Those excess emissions impose $6 to $14 billion in annual costs to 

society, and "removing even a fraction of these glider vehicles with high polluting 

engines from the road will yield substantial health benefits."39 Do you have any reason to 

doubt the veracity of these figures? If you do, please explain the reason(s) why, and 

provide supporting documentation. 

8. Clean Air Act section 216(3) defines "new motor vehicle" as "a motor vehicle the 

equitable or legal title to which has never been transferred to an ultimate purchaser." 

a. As an initial matter, are glider vehicles motor vehicles? If no, please explain your 

answer and cite any provisions of the CAA upon which your answer relies. 

b. If a glider vehicle has not been sold to any ultimate purchaser, has the equitable or 

legal title of that unsold glider vehicle been transferred to an ultimate purchaser?'0 

If yes, pleaSe explain your answer and cite any provisions of the CAA upon which 

your answer relies. 

"See OTAQ Study, supra note 3, at4. 19 81 Fed. Reg. at 73,493. 40 By "ultimate purchaser," we refer to the definition in CAA section 216(5), 42 U.S.C. § 7550(5). 
252 


30463.220

9. Hypothetically, imagine that a new Volvo dealer sells a brand new Volvo VNL heavyduty truck41 to the vehicle's first ultimate purchaser. The Volvo VNL is straight off the 

assembly line, including with a brand new powertrain. 

a. Would that Volvo VNL be a "new motor vehicle" under CAA section 216(3)? If 

your answer is anything other than "yes," please explain your answer and cite any 

provisions of the CAA upon which your answer relies. 

b. Would the same Volvo VNL be a "new motor vehicle" under CAA section 216(3) 

if all characteristics from the hypothetical vehicle were the same, except that at 

the time of the sale the truck had i) pre-owned, refurbished tires salvaged from an 

older truck, or ii) a pre-owned, refurbished windshield installed? 

10. Docs the Automobile Information Disclosure Act of 1958, Pub. L. 85-506, contain any 

requirements applicable in any way to either air pollution or to heavy-duty commercial 

trucks? If yes, please provide a citation to those provisions. 

11. Are the degree of emissions from glider trucks relevant in determining whether Congress 

intended to allow EPA to regulate emissions from new glider vehicles, glider kits, or 

rebuilt glider engines under the Clean Air Act? If yes, explain how emissions data 

influenced the proposal. 

12. Are the human health consequences of glider tntck emissions at all relevant in 

determining whether Congress intended to allow EPA to regulate emissions from new 

glider vehicles, glider kits, or rebuilt glider engines under the Clean Air Act? If yes, 

explain how human health considerations influenced the proposaL 

Thank you very much for your attention to this important matter. Please provide your 

response no later than April2, 2018. If you or members of your staff have further questions, 

plea~e feel ll·ee to ask them to contact Michal Freedhoff at the Committee on Environment 

and Public Works at (202) 224-8832, or Jonathan Black with Senator Udall's office at (202) 

224-6621. 

Senator Tom Carpe 

Ranking Member 

U.S. Senate Committee on 

Environment and Public Works 

Sincerely, 

~uRtJJ-e Senator Tom Udall 

Ranking Member 

U.S. Senate Subcommittee on the 

Department of the Interior, 

Environment, and Related Agencies 

"See "New VNL I Volvo Trucks USA," VOLVO, https://www.volvotrucks.us/trucks/vnll. 
253 

Senator CARPER. Thanks very much to the witnesses and Secretary Garvin for getting up early and putting up with a balky 

train schedule to be here with all of us. 

You were joined by at least one member of your staff over your 

left shoulder. She looks so familiar. Introduce her. 

Mr. GARVIN. I have my Chief of Staff, Kristin Barnekov-Short, as 

well as my Acting Air Director, David Fees. 

Senator CAPITO. Thank you. 

If there are no more questions, I will thank the panel for today. 

Members may submit follow up written questions for the record 

by the close of business on Tuesday, April 24. 

For our witnesses, Committee staff will forward any questions 

from Committee members. Please respond to those written questions by close of business Tuesday, May 8. 

Again, thank you so much. 

This hearing is adjourned. 

[Whereupon, at 11:28 a.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows:] 

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The Honorable Scott Pruitt 

Administrator 

Envirorunental Protection Agency 

1200 Pennsylvania Avenue NW 

Washington, DC 20460 

Dear Administrator Pruitt: 

iinitrd ~tares f,cnate COMMITT<E ON ENVIRONMENT AND PUBLIC WORKS 

WA~iHlNmON. DC :f05-tO·t\17f, 

January 9, 2018 

We write to request that you rescind a current EPA policy that disinccntivizes air emissions 

reductions. On November 15, 2017, the Cornn1ittee held a hearing entitled, "Promoting 

American Leadership in Reducing Air Emissions Through Innovation." In testimony during that 

hearing, the so-called "once-in-always-in" policy under the Clean Air Act ''"as identified as a 

policy that discourages emissions reductions. 

The 1995 policy requires a source to comply with stringent emissions standards even if the 

source later lowers its emissions below the "major source" thresholds that triggered the standards 

in the first place. In the enclosed submissions to the November 151

h hearing record, the National 

Association of Manufacturers and the American Coatings Association (ACA) highlighted the 

practical effects of the policy. As ACA explains, "resources spent on compliance could be used 

instead for [research and development], or modernization activities." 

EPA can rescind this policy, which was issued under Section 112 of the Clean Air Act, without 

any legislative changes. As the Chairmen ofthe Committee and Subcommittee of jurisdiction 

over the Clean Air Act, we request that you incentivize additional hazardous air pollutant 

emissions reductions by promptly withdrawing this policy. If you have additional questions 

about the Committee's hearing that reviewed this issue, please contact Elizabeth Homer of the 

Committee's staff at 202-224-6176. 

Enclosures 

Sincerely, 

~!:~ Chairman 

Subcommittee on Clean Air and 

Nuclear Safety 
255 


30463.222

United ~tatcs ~cnatc COMM!TfEE ON ENVIRONMENT AND PUBLIC WORKS 

January 12, 20 18 

Dear Administrator Pruitt: 

We write in support ofEPA's proposal to repeal the so-called "Clean Power Plan" (CPP), 

published in the Federal Register on October 16, 2017.; When President Obama finalized the CPP in 

2015, we opposed it because of the pervasive, negative effects it would have had on Americans across the 

country. The CPP would have driven up energy prices, eliminated American jobs, and hurt local 

communities that depend on coal. As the ligures in your proposed repeal demonstrate, the costs of the 

CPP would have been substantial. By repealing the rule, EPA eliminates up to $33 billion in costs in the 

year 2030 alone. 

Not only is the CPP bad policy, it is unlawful. Congress did not give EPA the authority to 

transform our energy sector. The CPP would force coal plant closures and artificially shift electricity 

generation to other sources. As the Supreme Court has stated, EPA cannot "bring about an enormous and 

trans formative expansion in EPA's regulatory authority without clear Congressional authorization."' The 

Supreme Court "expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast 

~economic and political significance."iit 

When EPA issued the CPP in 2015, the Agency asserted novel and over-reaching authority to 

force states into making energy choices that disadvantaged some energy sources over others. As a result, 

27 states challenged the CPP in court. EPA's assertion of authority went against the basic tenets of the 

Clean Air Act, which gives "primary responsibility" to states in implementing the Act.;' Then, in 2016, 

the Supreme Court halted implementation of the CPP while litigation over the rule proceeded. 

As yo11 work to repeal the CPP, we support EPA's willingness to examine broader questions 

about how the federal government measures the costs and benefits of EPA regulations. According to a 

2016 report by the Office of Management and Budget,' approximately 95% of the total costs of EPA 

regulations are the result of regulations developed by EPA's Office of Air and Radiation (OAR). The 

prior administration employed accounting policies that generated outsized benefits and minimized costs to 

justify costly OAR r11les, such as the CPP. As you have done in this proposal to repeal the CPP, EPA 

should continue to examine .nnd correct those issues so that future policies are grounded on sound costbenefit analyses. 

We stand ready to assist you as you restore EPA's implementation of the Clean Air Act to its 

intended purpose: "to protect and enhance the quality of the Nation's air resources so as to promote the 

p·ublic health and welfare and the productive capacity of the population."'; 

Sincerely, 

12:!~~ Chairman 

Subcommittee on Clean Air and Nuclear Safety 
256 


30463.223

~~-~ James M. lnhofe 

U.S. Senator 

U.S. Senator 

~~ Richard C. Shelby 

U.S. Senator 

'82 Fed. Reg. 48035 (Oct. 16, 2017). 

Deb Fischer 

U.S. Senator 

~~~ Dan Sullivan 

U.S. Senator 

'' Utili1yAir Regula1oryGroup v. EPA, 134 S. Ct. 2427,2444 (2014). 

"' /d, 

"Clean Air Act§ IOI(a)(3). 

' Office of Management and Budget, "20 16 Drafi Repon to Congress on the Benetits and Costs of Federal 

Regulations and Agency Compliance with the Unfunded Mandates Reform Act" (20 16). 

>i Clean Air Act§ IOI(b)(l). 
257 


30463.224

The Honorable Scott Pruitt 

Administrator 

Environmental Protection Agency 

1200 Pennsylvania Avenue NW 

Washington, DC 20460 

Dear Administrator Pruitt: 

ldnitcd ~tatcs rScnatr COf>iJM!TTEE ON ENVIRONMENT ANO PUBLIC WORKS 

January 19,2018 

I write to request your attention to two challenges associated with National Ambient Air Quality 

Standards (NAAQS) implementation across the country, including in my home State of 

Wyoming: exceptional events determinations and interstate transport of ozone. 

First, EPA has not worked in full partnership with States in addressing "exceptional events" in 

the past. In 2016, EPA refused to act on a number of Wyoming's pending requests related to 

unique air quulity events, us explained in the enclosed correspondence between Wyoming and 

EPA. Under Section 319 of the Clean Air Act (CAA), Congress created a process for addressing 

how "exceptional events" such as wildfires should be evaluated in air quality monitoring data. 

Wyoming's experience with the program illustrates the need for a shift in EPA's implementation 

approach. As a rural state with areas of high elevation and low population density, Wyoming 

faces issues different from many other parts of the country. 

Second, EPA needs to revisit the methodology it has used to address interstate ozone transport, 

that is, whether and how emissions in one part of the country affect air quality elsewhere. On 

February 10,2017, I raised concerns with EPA's treatment of ozone transport in the enclosed 

letter addressed to Reince Priebus. Despite a clear directive at the beginning of this 

Administration to freeze issuance of new regulations, EPA found that Wyoming had not 

adequately addressed ozone transport issues. In reaching that conclusion, EPA applied a 

methodology designed for eastern States to allege that emissions in Wyoming posed air quality 

problems in Colorado. 

By January 30,2018, please provide a status update on both of the issues above. First, what are 

the Agency's plans to act on pending exceptional events requests filed by Wyoming? Second, 

what are EPA's plans to address the February 2017 ozone transport finding? 

l also request that you outline current or planned activities of the Ozone Cooperative Compliance 

Task Force, which was mentioned in an October 25, 2017 EPA report. 1 According to the report, 

the Task Force will address NAAQS implementation issues of national importance in the future. 

1 U.S. EPA, "Final Report on Review of Agency Actions that Potentially Burden the Safe, Efficient 

Oeve!opment of Domestic Energy Resources Under Executive Order 13 783" (Oct. 25, 20 17), 

illtp~:'/\\ \'-\\:,_~I''UM!lL5ile"(!liQii\!cJic'n/t11esl101.'1::lQ@ncumej1J:l/eo- l JJJ!.:Hillal,report- I !l-25;:10 17.llilf. 
258 


30463.225

Your consideration of these requests is greatly appreciated. If you or your staff require 

additional information, please contact Elizabeth Homer of the Committee on Environment and 

Public Works (Majority) staff at 202-224-6176. 

Sincerely, 

Enclosures 
259 


30463.226

lanttnt ~rates ~cnatc COMM!TIEE ON ENVillONMEN1 AND PUBLIC WORKS 

February 10,2017 

The Honorable Reince Priebus 

Assistant to the President & Chief of Staff 

The White House 

1600 Pennsylvania Avenue, N.W. 

Washington, DC 20500 

Dear Mr. Priebus: 

Thank you for your January 20, 2017, Executive Memorandum entitled "Regulatory 

Freeze Pending Review" (hereinafter "Priebus Memo"). This type of memo is a routine, but 

important step during a transition to allow an incoming President and his designees to review and 

assess any pending administrative actions. lbe Priebus Memo established a regulatory freeze on 

almost all pending matters as of noon on January 20, 2017. 

Despite this clear directive, on Friday, February 3, 2017, the Environmental Protection 

Agency (EPA} published a final rule that disapproves parts of Wyoming's state implementation 

plan relating to interstate transport and the 2008 ozone standard, entitled "Approval and 

Disproval and Promulgation of Air Quality Implementation Plans; Interstate Transport for 

Wyoming," Final Rule, 82 Fed. Reg. 9142 (Feb. 3, 2017}. I am surprised and concerned this rule 

was finalized after January 20, 2017 without going through a comprehensive review in 

accordance with the Priebus Memo. 

It is our understanding that EPA told Wyoming officials that this rule was exempt from 

the Priebus Memo because the agency was acting pursuant to a judicial deadline of January 17, 

2017. However, EPA is under no judicial deadline relating to this matter. EPA and the Sierra 

Club have proposed a consent decree to resolve a pending lawsuit relating to EPA approval of a 

number of state plans. The court has not yet entered that decree. Accordingly, EPA's 

disapproval of Wyoming's state implementation plan should have been subject to the Trump 

Administration's regulatory freeze, as provided under the Priebus Memo. 

The action taken by EPA on February 3n1 also raises significant policy concerns. 

Wyoming submitted its state implementation plan in February 2014 using EPA's 2013 guidance 

on plan development. In September 2015, the Sierra Club sued EPA regarding the agency's 

review of state plans. Wyoming had no notice of this lawsuit until June 2016. At that time, EPA 

published a notice in the Federal Register of its intent to settle the lawsuit by agreeing to 

deadlines for action on state plans, including that of Wyoming. Around the same time, again 

with no notice to Wyoming and other states, EPA replaced the 2013 guidance that Wyoming had 

relied upon. EPA's new methodology for evaluating ozone transport in the West uses a model 

developed for Eastern states that fails to account for Western topography and exceptional events, 
260 


30463.227

such as wildfires. In November 2016, EPA proposed to disapprove Wyoming's plan to address 

the 2008 ozone standard. After silting on Wyoming's submission for over two and a half years, 

EPA gave Wyoming only 30 days to comment. Wyoming asked for a 90-day extension to 

address EPA's new methodology. EPA denied that request, stating that it could not agree 

because the Sierra Club did not concur. This sequence of events left Wyoming with no 

opportunity to develop an approvable plan. 

The actions described above took place during the Obama Administration. However, 

EPA continues to disregard Wyoming's legitimate concerns. EPA chose to violate the Priebus 

Memo by finalizing the disapproval of Wyoming's implementation plan instead of using its 

lawful discretion to work cooperatively with the state. 

It is important that agencies such as the EPA follow the Pricbus Memo and its strictures, 

to ensure that states such as Wyoming are not harmed by ill-conceived actions set in motion 

during the Obama Administration. 

Sincerely, 

eon Environment and Public Works 

States Senate 

cc: Don Benton, Senior White House Advisor, EPA 
261 


30463.228

Department of Environmental Quality 

May 23,2016 

Monica Morales 

Acting Director 

Air Program 

To protect, conserve and enhsncs the quaHty of Wyoming's 

env;ronment for lhe benefit of ctJtrenl and futum genemtlons. 

U.S. Environmental Protection Agency 

Region 8 

1595 Wynkoop Street 

Denver, CO 80202-1129 

RE: Wyoming Department ofEnvironmentol Quality (WDEQ) Exceplional Events 

Demoastration Packages; 2011-2014 

Dear Ms. Morales: 

Todd Parfitt, Dimctor 

The State of Wyoming, Department of Environmental Quality- Air Quality Division (AQD) has 

reviewed your letter~ and offers the following comments, regarding the Environmental Protection Agency 

(EPA) Region 8's preliminary review of, and decision to not act upon, WDEQ's exceptional event 

demonstration submittals for calendar years 2011-2014. The AQD appreciates EPA Region 8 's 

notification of preliminary review, but ultimately finds the EPA's proposed inaction on WOEQ's request 

for concurrence on monitoring data flagged as influenced by exceptional events to be very disappointing. 

Tho AQD renews its requests for EPA Region 8 action. 

The EPA's inaction- to shelve Wyoming's exceptional event submissions until the EPA views them as 

the subject of an attainment demonstration or other EPA regulatory decision-signals the EPA's general 

disregard for the significant time and staff resources committed by the AQD for each individual 

exceptional event demonstration. The EPA's response to Wyoming's submittals may discourage other 

state regulatory agencies from perfonning thorough, meticulous work on future exceptional event 

demonstrations under the presupposition that these demonstrations will be merely shelved once they reach 

federal review. This does not align with the objectives of the EPA or WDEQ, as both entities should be 

wholly committed to providing outstanding responsiveness on environmental policy issues. 

Furthermore, the EPA'sjustification for inaction is also problematic. Although certain exceptional event 

demonstrations that appear on the enclosed table ofWDEQ's 2011-2014 packages may not directly 

pertain to a specific pending regulatory decision - such as whether an area will be considered 

nonattainment- they nevertheless represent exceedances of the National Ambient Air Quality Standards 

(NAAQS) that the AQD has determined were caused by circumstances beyond regulatory control. Unless 

these flagged data demonstrations are approved by the EPA, they are ultimately considered to be 1

'violations"- regardless of whether such & "violation" is warranted- and Wyoming is left with possible 

200 West 17th Street • Cheyenne, WY' 82002 • hHp:lldeq.wyomlrtg.gov • Fa~ (307}835-1784 

ADNINIOUTR!ACH ABAHOONI!OMINES AIROUAUTY INOUSTRIAlSITINQ LAHDDliAllTV $10ilt'I.&Wio7Wa~ waT!=I:I',....Mirrv 
262 


30463.229

undue consequences of delays to New Source Review permitting actions, performing follow-up casework 

with stakeholders, as well as the abiding perceptions of the general public. Additionally, the AQD and 

other state agencies face the burden of implementing federal policies that are developed on the basis of 

elevated monitored data- data that should have been excluded from emission inventories as a result of 

being properly classified as exceptional events- and therefore, exceptional event demonstrations that are 

not acted upon by the EPA still influence regulatory decisions that directly impact states. Whereas in the 

past, EPA Region 8 had conferred with the AQD in compiling this list of shelved exceptional event 

demonstrations, there was no two-way dialogue in this instance. The AQD does not believe this is a 

reasonable or efficient practice. The AQD respectfully requests that the EPA acts on WDEQ's 

concurrence requests or reopens its dialogue with WDEQ regarding which flagged monitored data will be 

considered for the EPA's full review. 

Prior State Involvement in Demonstration Selection 

As previously noted, the April 20 !6 letter from EPA Region 8 runs contrary to prior discussions between 

the EPA and the AQD regarding whether flagged data would be fully considered and reviewed by the 

EPA. The EPA's guidance on exceptional event demonstrations acknowledges that states should 

highlight the significance of each flagged event, and Wyoming has consistently followed this guidance by 

detailing the importance of certain demonstrations in its cover letter to the EPA. In this most recent 

instance, however, the AQD was merely informed that a series of 46 exceptional events- event 

demonstrations that AQD staff had invested significanttime, resources, and analysis into compilingwould not be acted upon by the EPA unless the demonstrations became the subject of a future attainment 

demonstration or other specific EPA regulatOI)' decision. 

The EPA's practice is troublesome for the AQD on several fronts. It disregards a significant analytical 

and laborious effort undertaken by the AQD over the years- an effort that Wyoming undertook with the 

full expectation that the EPA would ultimately consider and act on the flagged data. The EPA's failure to 

act wastes state agency resources. The AQD maintains that, if it has technically demonstrable 

justification to compile an exceptional event demonstration, and if it has undertaken the effort in 

compiling that demonstration, then the EPA should fulfill its responsibility to take action. The EPA 

should honor the work undertaken by state agencies by providing its full consideration. 

Concerns Regarding State-Level Regulatory Decisions 

The AQD is in the unique position of having several industrial ambient monitors required through New 

Source Review permits that must meet EPA requirements, and therefore, data that are currently eligible 

for treatment under the Exceptional Event Rule. There have been several instances where data have been 

influenced by exceptional events at these monitors. In these instances, the AQD has demonstrated the 

regulatory significance of these events and has submitted demonstrations for review by the Region. The 

EPA's follow-through on the regulatory review process would lessen regulatory uncertainty by allowing a 

regulatory mechanism to demonstrate the effect of exceptional events upon ambient data used for 

permitting and regulatory decisions at the state level. This would benefit all regulatory entities involved, 

as it would allow for the AQD to operate as efficiently and decisively as possible in acting upon ambient 

monitored data. 

2 
263 


30463.230

Placing Undue Accountability on State Agencies 

The EPA's approach is further problematic to the AQD because the state agency is ultimately left to deal 

with the lingering consequences ofNAAQS "violations" that were entirely beyond the control of any 

regulatory entity. These consequences are not necessarily limited to specific EPA attainment or other 

regulatory detenninations. The notion that only such pending regulatory detenninations are relevant in 

evaluating flagged monitoring data is a significant misconception on the EPA's behalf. 

While the EPA's evaluation of a certain exceptional event demonstration may not have specific bearing 

on whether or not a certain area is able to attain the NAAQS, these monitored data are nevertheless 

included in conjunction with national emission inventories and modeling exercises that are ultimately 

considered by the EPA in establishing policy and developing federal regulations. Exceptional event 

demonstrations make compelling cases that certain elevated monitored data should be disregarded when 

creating regulatory policy. When the EPA disregards and fails to act on these demonstrations, however, 

the consequence is the inclusion of inflated monitored data that misrepresents the prevailing air quality 

conditions. For example, the shelved data on Wyoming's exceptional event demonstration list from the 

2012 summer is attnbutable to the omnipresence of wildfire emissions in the state, or transported into the 

state, due to an extraordinarily active wildfire season. The EPA's reluctance to act on Wyoming's 

exceptional event demonstration submissions ultimately means that these exceedances represent 

"violations" of the NAAQS- from a regulatory standpoint, and in the eyes of the public -.even though 

these events were beyond regulatory control. This is simply an unfair and unsound practice and is 

ultimately counterproductive to the state, the EPA, and the public. 

Additionally, the EPA's inaction is problematic because there are many circumstances where the 

consideration of exceptional event-influenced data would impact regulatory domains beyond NAAQS 

attainment. One such example is regional haze, where a wildfire-heavy summer- including wildfires 

burning in other states- would contribute significantly to pollutant levels in Wyoming and impact the 

presence of regional haze, despite the State of Wyoming having no capacity to <:ontrol those emissions. 

This was, again, the case in 2012, where levels ofPM1.~ in Wyoming increased dramatically between June 

and September because of the omnipresence of wildfires -largely attributable to the extraordinarily dry 

meteorological conditions. 

Although Wyoming still attained the primary annual arithmetic mean and the primary 24-hour average for 

both the 2006 and 2012 PM2.s NAAQS, the elevated PMa.s levels attributable to exceptional events still 

impacted the state's capacity to demonstrate that the state's overall marginal levels of PMu did not 

contribute significantly to regional haze. These exceptional events were significant in number (there were 

several multi-day wildfires throughout the summer) and had impacts beyond the State's regulatory 

capacity. Ultimately, the EPA's consideration of monitored data, bereft of exceptional event 

demonstrations results in a misrepresentation of the adequacy of existing state regulations and shifts state 

resources from addressing areas of concern to addressing situations that are not problematic. 

3 
264 


30463.231

Conclusion 

The AQD hopes that its request and suggestions ensure that the EPA fully considers these exceptional 

event demonstrations. The EPA's action is extremely beneficial for the planning and submittal of 

regulatory documents that may be influenced- both in scope and in details- by the classification of 

exceptional events that impact monitored data, and consequentially impact the regulatory decisions that 

air agencies must make. It is important to the State of Wyoming that the EPA honors its commitment to 

act on these exceptional event demonstrations. 

Thank you for the opportunity to reply to your letter. As always, the AQD is available to discuss any of 

the concerns outlined in this letter. Please feel free to contactthe AQD at 307-777-739\. 

Sincerely, 

L~f.fflv AQD Administrator 

Cc: Adam Clark, EPA Region 8 

CaraKeslar, AQD 

Amber Potts, AQD 

Mike Morris, AQD 

4 
265 


30463.232

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGIONS 

Ref: 8P-AR 

Nancy Vehr, Administrator 

Air Quality Division 

1595 Wynkoop Street 

Denver, CO 80202-1129 

Phone 800-227-8917 

__..epa.gov/reglonQB 

m z: 2m& 

Wyoming Department of Environmental Quality 

200 West 17~' Street 

Cheyenne, Wyoming 82002 

Received 

APR .2 8ZDI6 

Re: Wyoming Department of Environmental Quali1y 

(WDEQ) Exceptional Events Documentation 

Packages; 2011-2014 Air QnaUty Dirision 

Dear Ms. Vehr: 

This letter is in response to WDEQ's submittals of demonstrations of exceptional event influence on 

PM2.5, PM10, and ozone monitoring data for calendar years 2011-2014. The demonstration documents 

contain information regarding monitoring data flagged by WDEQ to indicate that PMto National 

Ambient Air Quality Standards (NAAQS) exceedances were affected by high winds, PMu NAAQS 

exceedances were affected by wildfires, and ozone NAAQS exceedances were affected by stratospheric 

intrusions. 

A preliminary review of the demonstrations submitted indicates that the flagged PM and ozone data may 

have been influenced by exceptional events; however, at this time the EPA will not take action on 

WDEQ's request for concurrence on the referenced data flags. The data are not anticipated to be 

involved in any pending regulatory decision by the EPA, therefore, the EPA is not making a concummce 

decision on the demonstrations submitted. If at some point in the future the flagged data would be 

included in an attainment demonstration or involved in other regulatory decisions, the EPA would then 

undertake a full review ofthe submitted demonstrations to allow a concurrence decision at that time. 

The enclosed table provides a summary of the flagged PMu, PMto, and ozone monitoring data WDEQ 

provided for the calendar years 20 Il-2014 subject to this letter. With this letter, the EPA is determining 

our review of the WDEQ 201 1-2014 packages listed in the enclosed table to be complete. As always, the 

EPA staff are available to answer any questions your staff may have and to provide help where needed. 

For additional information, please feel free to contact me, or your staff may contact Kyle Olson, of my 

staff, at (303) 312-6002. 

Sincerely, 

~~ Monica Morales, Acting Director 

Air Program 
266 


30463.233

EEDate Year Location MonitoriD Parameter Monitored 

Value 

513012011 2011 Soud1 Pass 56-013-0099-1 OJ 81 ppb 

1/1112012 2012 Naughton 56-023-0820-2 PM to 312 !J.g/m3 

l/1212012 2012 Naughton 56-023-0820-2 PM to 167ug/m3 

1/1312012 2012 Naughton 56-023-0820-2 PM10 325 !J.g/m3 

111612012 2012 Naughton 56-023-0820-2 PM to 179uglm3 

111812012 2012 Naughton 56-023-0820-2 PM to 174 !J.g/m3 

Mountain 56-001-0800-3 PM to 170 !J.g/m3 

Cement 

l/21/2012 .. 2012 · ·Scho9I Creek- 56-005-0086-1 PMto 2261J.g/m3 . ··. ·~ ' ' . •.. A 3 .. -. ' School Creek - 56-005-0087-1 PM to 223 !J.g/m3 

2 \ .. )i: ,. N An\elope/ 56-005-0869-2 PM to 200 !J.g/m3 

RochelleR0-1 

3/76/Z012 . -;201~:, Mhuntain 5 6-001-0800-3 PMto 2041J.g/m3 .. , ....... ... ·Cem~nt 

411212012 2012 Buckskin Mine 56-005-1899-1 PM to 180 IJ.g/m3 

N 

6/5/2012 2012 Wyodak 56-005-0901-1 PM to 237u.J<Im3 

Bridger Coal 56-037-0860-1 PM to 2151J.g/m3 

m-4 

6/6/2012 2012 Thunder Basin 56-005-0 123-1 OJ 88 ppb 

6/2612012 2012 Pinedale 56-035-0101-1 PMz.s 47.0 uR!m3 

6/2812012 2012 Big Piney 56-035-0700-1 PMz.s 53.81J.g/m3 

6/29/2012 2012 Lander 56-0 13-l 003-1 PMz.s 41.8 u.g/m3 

Casper 56-025-0001-1 PM2.s 36.5 !J.gfm3 

Big Piney 56-035-0700-1 PM2.s 110.6u.idm3 

6/30/2012 2012 Big Piney 56-035-0700-1 PM to 190 ug/m3 

Big Piney 56-035-0700-1 PM2.s 143.7 J.lg/m3 

7/1/2012 2012 Big Piney 56-035-0700-1 PM2.s 85.4 11Rfm3 

7/2/2012 2012 Big Piney 56-035-0700-1 PM2.s 97.4 !J.g/m3 

7/3/2012 2012 Big Piney 56-035-0700-1 PM2.s 74.71J.g/m3 

7/4/2012 2012 Gillette Col. 56-005-0800-1 PM2.s 56.5 J.lg/m3 

BelleAyrBA- 56-005-0892-1 PM2.s 55.3 J.lg/m3 

4 

Antelope 3 56-009-0819-1 PM2.s 47.0 11idm3 

Big Piney 56-035-0700-1 PM2.s 68.4uidm3 

7/5/2012 2012 Big Piney 56-035-0700-1 PMz.s 38.6!J.g/m3 

9/18/2012 2012 Wyoming 56-035-0097 -I PMz.s 39.1 J.lg/m3 

Range 

9/2012012 2012 Wyoming 56-035-0097 -I PMz.s 52.3 J.lg/m3 

Range 

2 
267 


30463.234

EEDate Year Location Monitor!D Parameter Monitored 

Value 

Pinedale 56-035-0101-1 PM2.s 44.8~m3 

9/2112012 2012 Rock Springs 56-037-0007-1 PM2.s 37.6 J.1g/m3 

Jackson Hole 56-039-1006-1 PM2.s 39.2 J.1g/m3 

121212012 2012 Buckskin Mine 56-005-1899-1 PM1o 167 J.1g/m3 

N 

1212012012 2012 N Antelope/ 56-005-0869-2 PM10 188 J.1g/m3 

Rochelle R0-1 

3/412013 2013 Black Thunder 56-005-0891-2 PM to 166 J.1g/m3 

3/1712013 2013 Black Butte 56-037-0868-2 PM1o 261 J.1g/m3 

#10 

Black Butte I- 56-037-1868-1 PM1o 432 f!g/m3 

80 

6/1312013 2013 Kemmerer 56-023-0800-1 PM10 273tJ.g/m3 

Mine 

111312014 2014 Black Butte 56-037-0868-2 PM10 166 J.lg/m' 

#10 

212112014 2014 Black Butte 56-037-0852-1 PMIO 204 J.1g/m3 

Lucite Hills 

3!1712014 2014 Black Butte 56-03 7-0868-2 PM1o 202 J.1g/m3 

#10 

Black Butte 56-037-0852-1 PM10 242 J.1g/m3 

Lucite Hills 

4128/2014 20!4 Black Butte 56-037-0852-1 PM,o 219 J.1g/m3 

Lucite Hills 

7/14/2014 20!4 Black Butte 56-037-0852-1 PMro 294 J.1g/m3 

Lucite Hills 

3 
268 


30463.235

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

The Honorable John Barrasso. M.D. 

Chairman 

January 29, 2018 

Committee on Environment and Public Works 

United States Senate 

Washington, D.C. 20510 

Dear Chainnan Barrasso: 

OFFICE OF 

AIR AND RAD!A TlON 

Thank you for your letter of January 9, 2018, to the U.S. Environmental Protection Agency 

Administrator Scott Pruitt, regarding the 1995 "once-in-always-in" policy under section 112 of the 

Clean Air Act (CAA). 

On January 25, 2018, EPA issued a guidance memorandum withdrawing the 1995 "once 

in always in" policy for the classification of major sources of hazardous air pollutants. With the 

new guidance, sources of hazardous air pollutants previously classified as "major sources" may 

be reclassified as ·'area'' sources when the facility limits its potential to emit toxic air pollution 

below major source thresholds. The memo is another step by which EPA is reducing unnecessary 

regulatory burdens that deterred innovative efforts to improve the environment. 

This guidance is based on a plain language reading of the statute that is in line with 

EPA's guidance for other provisions of the CAA. It will reduce regulatory burden for industries 

and the states. while continuing to ensure stringent and effective controls on hazardous air 

pollutants. 

For more than 20 years, many stakeholders have expressed concerns similar to yours 

about this policy. It was a longstanding disincentive for sources to implement voluntary 

pollution abatement and prevention efforts, or to pursue technological innovations that would 

reduce hazardous air pollution emissions. States, state organizations and industries have 

frequently requested rescission of this policy, which was one of the most commonly cited 

requests in response to President Trump's Executive Order 13777. EPA's action is an important 

step in furtherance of the President's regulatory reform agenda while providing a meaningful 

incentive for investment in hazardous air pollutant reduction activities and technologies. 

Internet Addre&l (URI.) • Mtp:/iwww.epa.gov 

Recyeled/Recyclable • Prtntecf with Vegetable 011 Baaed lnka on Recycled Paper (Minimum 50% Postconeumet content) 
269 


30463.236

Again, thank you for yoU!' Jetter. If you have further questions, please contact me or your 

staff may contact Matthew Davis in the EPA's Office of Congressional and Intergovemmental 

Relations at davis.matthew@epa.gov or (202) 564-1267. 

William L. Wehrum 

Assistant Administrator 
270 


30463.237

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

The Honorable John Barrasso. M.D. 

Chainnan 

February I. 20 I 8 

Committee on Em·ironrncnt and Public Works 

llnitcd States Senate 

Washington. D.C. 20510 

Dear Chairman Barrasso: 

OFFICE OF 

AIR AND RADIATION 

I am writing in response to your January 19,2018. letter requesting attention to various 

National Ambient Air Quality Standards (NAAQS) implementation issues. including exceptional 

eycnts determinations and interstate transport of ozone. 

The U.S. Environmental Protection Agency's October 2017 Final Report on Review of 

Agen-:v Aclimrs that f'orentially Burden 1/1e St{fe, E/]icienl Development r!{ Domestic Energy 

Rl'sources Under Erecutive Order /3 783 outlined a variety of concerns identified by commentcrs 

regarding NAAQS implementation issucs. 1 In order to address issues related to the ozone NAAQS. 

I !(1rn1cd the Ozone Cooperative Compliance Task Force. The Task Force is reviewing 

administrative options to enable states to enter into cooperative agreements with the EPA to 

provide regulatory relief and meaningfully improve ozone air quality. The Task Force is focused 

on: fully understanding the role of background ozone levels: appropriately accounting for 

intemational transport: and timely wnsideration of exceptional events demonstrations. Moreover. 

the El' A plans to work to streamline state implementation plan (SIP) approvals through a 

nationally consistent process. On January 8. the EPA provided a status report to the U.S. Court of 

Appeals tor the D.C. Circuit indicating that the agency is continuing to review the 2015 ozone 

NAAQS to determine whether the standards should be maintained. modified. or otherwise 

rcconsidcrctl. 

The EPA is committed to working with states like Wyoming to address challenges with 

exceptional C\'cnt demonstrations under section 3 I 9(b) oft he Clean Air Act (CAA). In September 

2016. the EPA finalized revisions to the Exceptional Events Rule in an attempt to improve 

administrative efficiency and reduce burdens lor the demonstration process. Under the new rule. 

the EPA has concurred on several ozone-related demonstrations in 2017 and looks forward to 

working closely with the Committee and the state of Wyoming to facilitate implementation in a 

manner consistent with cooperative federalism. The updated rule includes an initial notification 

process to enable early engagement as well as intended response timclines for an initial review of 

suhmitted demonstrations within 120 days and a complete review of final demonstrations within 

12 months. The EPA has recently posted submitted materials and EPA reviews for successful 

lntem-et Address (URL) .. http~J/www.epa.gov 

RecyciedfRec:yclable • Printed with Vegotabkt Oil8nfit ln.ks on R.ecyC"Ied Pap•r (Minimum 50% PoatccmsiJmer content) 
271 


30463.238

demonstrations under the revised rule." us well as several tools which should improve the process 

(including a June 2017 Mitigation Plan checklist ami an April 2017 Bes/ Prac/icesJi>r Prepurathm 

of Multi-Agenc}' Exceptimwl Events Demonstrations).3 The EPA also intends 10 transition to a 

national electronic tracking system for exceptional events as well as develop additional 

implementation materials related to alternate paths lor data exclusion (including for air quality 

data that may influence regulatory determinations or actions typically outside the scope of the 

exceptional events rule}, stratospheric ozone intrusions, high wind events. and prescribed tires. 

We look forward to working with the Committee and the state of Wyoming to ensure that 

the "Good Neighbor" provisions of the C AA 's section 110 reflect regional diftcrcnccs. I intend to 

engage in a transparent process that will allow states to have a meaningful opportunity to 

understand their obligations with regard to reducing emissions that cause or contribute to 

nonattainment or interference with maintenance in other states through the SIP process. In October 

2017, a memorandum from EPA's Ollice of Air Quality Planning and Standards provided 

supplemental information to states lor development of Good Neighbor SIPs under the 2008 ozone 

NAAQS.4 This updated modeling "indicates that there arc no monitoring sites. outside of 

California, that arc projected to have nonattainment or maintenance problems with respect to the 

2008 ozone NAAQS of 75 ppb in 2023.'' The EPA also intends to work closely with states early 

this year to provide more information and tlcxibility as they look to address interstate transport 

issues under the 2015 ozone NAAQS. 

Again. thank you lor your letter. If you have further questions, please contact me or your 

staff may contact Matthew Davis in the EPA's Office of Congressional and Intergovernmental 

Relations at davis.matthew@epa.gov or at (202) 564-126 7. 

William L. Wehrum 

Assistant Administrator 

1 htrps: ;/U'lVW. epU.}f.O\~Iuir-qualil)'~tma{-.· .... ·is!exceptimwl~events~.\'llhmissions-tahlc-.2 0 /6-rule. 

t https:/!wwu··.cpa.g<wlafr .. qualit,r-mwl)·si'i.le.tceJJfionlJ/~r:rents-imp/enu.'llfatimHoo/s-rL'mplali.:'S-(11lil~lin(\, 

·t hflps:/!www.~rw.gov/sileslproductimv}iles!]0/7-Illh./t;cumenrs.}ina( 2f)()8".tJ3 "1uwqs trunsp(Jrt memo J0~!7-

17h.pd.( 
272 


30463.239

AMERICAN ASSOCIATION 

OF STATE HIGHWAY AND 

TRANSPORTATION OFFICIALS 

AASHID 

March 16,2018 

The Honorable Scott Pruitt 

Office of the Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave. NW 

Washington, DC 20460 

Re: EPA Response to D.C. Circuit Decision in Sowl! Coast Air Quality Managemem District v. 

EPA. Case No. 15-1115 

Dear Administrator Pruitt: 

The American Association of State Highway and Transportation Officials (AASHTO) and the 

Association of Metropolitan Planning Organizations (AMPO) jointly request that the Environmental 

Protection Agency (EPA) file a petition for rehearing and request for stay of the February 16, 2018 

decision in South Coast Air Qttality Managemellt District v. EPA, Case No. 15-1115 in the U.S. 

Court of Appeals for the District of Columbia. This letter sets forth the reasons for this urgent 

request. 

In the South Coast decision, the court vacated major portions of a 2015 final rule that established 

procedures for transitioning from the 1997 National Ambient Air Quality Standard (NAAQS) for 

ozone to the stricter 2008 NAAQS for the same pollutant.' The 2015 rule included several 

important provisions to avoid imposing duplicative and unnecessary regulatory burdens. Of most 

importance to transportation agencies, the 2015 rule ensured that areas designated as nonattainment 

or maintenance for the 1997 standard would not be subject to air quality conformity requirements if 

those areas are in attainment for the stricter 2008 standard. 

The court decision overturned this common-sense provision in the 2015 rule, holding that areas 

designated as nonattainment or maintenance for the 1997 standard-but as attainment for the 2008 

standard-must remain subject to conformity requirements for the 1997 standard to avoid 

"backsliding" on efforts to meet that standard. But the court also agreed with EPA's finding that 

the "measures that achieved attainment of both the 1997 NAAQS and the 2008 NAAQS should be 

adequate to maintain the same 2008 NAAQS that has already been attained." The contradiction is 

clear: on one hand, the court finds that conformity must continue to apply for the 1997 standard to 

avoid backsliding; but on the other, the court agreed that the measures already in effect in those 

areas should be sufficient to maintain compliance with the stricter 2008 standard. 

1 See "lmplemenlation of the 2008 Na!ional Ambient Air Quality Standards for Ozone: State Implementation Plan 

Review Requirements," 80Fed. Reg. 12,264 (Mar. 6, 2015). 
273 


30463.240

The court also vacated several other provisions in the rule that provided flexibility in 

transitioning to the 2008 ozone standard, and appears to have invalidated EPA's revocation of 

the 1997 standard. If the revocation of the 1997 standard is invalidated, the implications of this 

decision are even broader: it would mean that areas designated as nonattainment or maintenance 

for the 2008 standard must make conformity determinations for the 1997 standard, in addition to 

making conformity determinations for the stricter 2008 standard for the same pollutant. 

The practical effects of this decision on transportation agencies will be severe. As of February 

16,2018, air quality conformity requirements for the 1997 ozone standard have been re-imposed 

on dozens of areas around the country that have fully attained the stricter 2008 ozone standard, 

and possibly on dozens of additional areas that are in nonattainment or maintenance for the 2008 

standard. The immediate re-imposition of conformity requirements will prevent States and 

metropolitan planning organizations (MPOs) from approving transportation plans and 

transportation improvement programs (TIPs) until the necessary air quality analysis and 

conformity determinations can be completed. Without an approved plan and TIP, the flow of 

federal funds for highway and transit projects in many areas will be halted. 

Moreover, the invalidation of EPA's 2015 rule potentially calls into question the validity of 

existi11g every plan and TIP approvals made in reliance on that rule. MPOs across the country 

have approved plans and TIPs since March 2015 without making conformity determinations with 

respect to the revoked 1997 ozone standard. If EPA were to conclude that those previous plan 

and TIP approvals are now invalid, given the lack of a conformity determination for the 1997 

standard, the effects of this decision would be even more immediate and far-reaching, potentially 

including a halt to ongoing construction projects. 

As an indication of the potential magnitude of the problem, there were 35 nonattainment areas 

and 80 maintenance areas for the 1997 standard at the time the 1997 standard was revoked. 

These 115 areas are located in 32 states and 434 counties.2 The immediate re-imposition of 

conformity requirements for the 1997 standard could disrupt transportation projects in all of 

those counties. In Atlanta alone, the MPO has approximately $1.5 billion of projects in its TIP; 

in Houston, the MPO has approximately $4.37 billion of projects in is TIP; in Hampton Roads, 

Virginia, the TIP includes $4.89 billion of projects. The re-imposition of the 1997 standard 

threatens the ability of these and other MPOs to continue moving forward with billions of dollars 

in projects. 

To avoid immediate and far-reaching disruption to transportation projects, it is critical to seek 

every available means to obtain relief from this court decision. We therefore request that EPA 

file a petition for rehearing in the D.C. Circuit and seek a stay of the court's decision within the 

45-day period allowed for such a petition (by April2, 2018). If EPA files a petition for 

rehearing, our organizations intend to seek the court's permission to file an amicus brief in 

support of the rehearing request. 

2 See EPA website, htlps://www3.epa.gov/airquality/greenbook/gbtc.html. 

2 
274 


30463.241

In addition, we request that EPA issue interim guidance as soon as possible regarding 

implementation of the court decision, and that any such guidance provide maximum flexibility 

and minimize disruption to ongoing projects. Specifically, we ask EPA to confirm that: 

• In nonattainment or maintenance areas where the 1997 ozone standard was revoked and 

no other conformity determinations for other pollutants or standards were required, all 

existing transportation plans, TIPs and projects are valid for twelve months from the date 

of the Court decision; at the end of the twelve-month period, a conformity determination 

for the 1997 ozone standard would be required. 

• In areas where the 1997 ozone standard was revoked and conformity requirements for 

other pollutants or standards apply, all currently approved conformity determinations are 

valid until the next required conformity determination is made in each such 

nonattainment or maintenance area. At the time of the next required determination, the 

nonattainment or maintenance area would meet the conformity requirements for the 1997 

ozone standard and any other pollutants or standards for which conformity is required. 

While not a complete solution, such guidance may provide some relief from the regulatory 

burdens and project delays caused by this decision. 

We also note that this court decision highlights the need for a permanent legislative solution to 

resolve the uncertainty about what the Clean Air Act requires when EPA issues a new, stricter 

NAAQS to replace a previous one for the same pollutant. In its recent infrastructure reform 

proposal, the White House specifically recommended "[a]mending the Clean Air Act to clarify 

that conformity requirements apply only to the latest NAAQS for the same pollutant."3 We 

strongly support this recommendation for legislative change. 

We appreciate your attention to this urgent request. We would welcome the opportunity to meet 

with you and your staff to discuss these issues. Should you have any questions, please contact: 

Melissa Savage from AASHTO at (202) 624-3638, or Bill Keyrouze from AMPO at (202) 624-

3683. 

Sincerely, 

~lf) Executive Director 

AASHTO 

DeLania Hardy 

Executive Director 

AMPO 

3 "Legislative Outline for Rebuilding Infrastructure in America," (Feb. !2, 2018), p. 44, 

3 
275 


30463.242

cc: 

Brandye Hendrickson, Acting Administrator, Federal Highway Administration, U.S. Department 

of Transportation 

K. Jane Williams, Acting Administrator, Federal Transit Administration, U.S. Department of 

Transportation 

Jeffrey Wood, Acting Assistant Attorney General, Environment and Natural Resources Division, 

U.S. Department of Justice 

D.J. Gribbin, Special Assistant to the President for Infrastructure, The White House 

Alex Herrgolt, Associate Director for Infrastructure, Council for Environmental Quality, The 

White House 

4 
276 


30463.243

1 AAP~ !I 

Administrator Scott Pruitt 

U.S. Envirorunental Protection Agency 

William Jefferson Clinton Building 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

September 15, 2017 

Subject: Principles for Addressing Interstate and International Ozone Transport 

Dear Administrator Pruitt: 

The Association of Air Pollution Control Agencies (AAPCA) 1 appreciates the opportunity to 

provide additional feedback to the U.S. Environmental Protection Agency (EPA) on consensus principles 

for the Agency to address interstate and international ozone transport as it relates to the 2008 and 2015 

National Ambient Air Quality Standards (NAAQS) for ground-level ozone. This communication lays out 

principles to facilitate approvable Good Neighbor State Implementation Plans (SIPs) under Clean Air Act 

(CAA) Section 110(a)(2)(D)(i)(I) for the 2008 and 2015 ozone NAAQS and is grounded in state and local 

air agency comments on a number of recent EPA actions.2 

AAPCA applauds the efforts of EPA, through the Office of Air Quality Planning and Standards and 

Office of Atmospheric Programs, to conduct more credible modeling for interstate transport in 2023 for 

the purposes of Good Neighbor SIP development. Based on comments from EPA officials on calls in 

August, we understand that EPA intends to complete updated national modeling this month that continues 

to use a 2011 base year and 2023 as a future year. This modeling will update emissions inventories, 

remove the Clean Power Plan assumptions, and incorporate Reasonably Available Control Technology 

(RACT) regulations for Pennsylvania and Connecticut for 2023. 

Now is the time for EPA to make meaningful updates to its approach to address interstate transport 

for the ozone NAAQS. Recent state and local comments highlight the need for EPA action on the 

following issues: 

Re-evaluate the 1 percent threshold for significant contribution, including the assessment for the 

2015 ozone NAAQS 

Determine that states should not be required to offset international or non-anthropogenic emissions 

through interstate transport requirements 

1 AAPCA is a national~ non~profit, consensus~driven organization focused on assisting state and local air quality 

agencies and personnel with implementation and technical issues associated with the federal Clean Air Act. AAPCA 

represents more than 40 state and local air agencies, and senior officials from 20 state environmental agencies 

currently sit on the AAPCA Board of Directors. You can lind more information about AAPCA at: 

http://v,lw\v.cleanairact.org. 

2 See compiled comments on: Executive Order (EO) 13777 on Enforcing the Regulatory Reform Agenda (AAPCA 

also released a July 2017 report, The State o(Rer,:u/atmy Reform: Navigating Stme Perspectives on Clean Air Act 

Regulations Under Executive Order 13 777); Preliminary Interstate Ozone Transport Modeling Data for the 2015 

Ozone NAAQS (herein "2017 NODA''); Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS and 

related Notice of Data Availability (herein "CSAPR Update"); Implementation of the 2015 NAAQS Standards for 

Ozone: Nonattainment Area Classifications and SIP Requirement' (herein "proposed SIP Requirements Rule"); and 

the proposed revision to the ozone NAAQS in 2015 (AAPCA reports on state environmental agency perspectives ill! 

timely NAAQS implementation and background ozone & regulalorv relief provide additional information). 
277 


30463.244

ASSOCIATION Of Alii POUIZ'I '31!11AGEHCII$ . . . ... . :u Jut 

Embrace a state-driven process to address interstate transport, including EPA action on timely and 

relevant SIPs and a re-assessment of expectations for Infrastructure SIPs 

Adjust EPA's methodology for cost-effective nitrogen oxide (NO,> controls 

Reassess its approach to identifying downwind maintenance and nonattainment receptors 

Address controls on in-state sources first 

Abandon non-transparent and unreliable modeling platforms 

Pursue other provisions for regulatory relief for international transport 

Similarly, tools available to provide regulatory relief to air agencies for significant international 

contributions of ozone and its precursors have not kept pace with the state ofthe science and the needs of 

state and local governments. As discussed in AAPCA's 2017 report, The Greatest Story Seldom Told: 

Profiles and Success Stories in Air Pollution Control,' and U.S. EPA's 2017 air trends report, Our 

Nation's Air: Status and Trends Through 2016,' tremendous air quality improvements have been made in 

the U.S., far exceeding international trends, in virtually every measure of air pollution control over the 

last several decades. EPA's own modeling for interstate transport rules, as well as a series of recent 

studies- including research from experts at U.S. EPA, the National Aeronautics and Space 

Administration (NASA), and the National Oceanic and Atmospheric Administration (NOAA)- suggests 

the challenge of international and non-North American transport has grown substantially with more 

stringent NAAQS revisions. 

To ensure state and local agencies are not inappropriately burdened by ozone concentrations outside 

their control, additional flexibilities are necessary. The experience of AAPCA members suggests that 

EPA can take steps to animate policy decisions and statutory provisions to address international ozone 

transport- including not requiring states to offset international contributions through the Good Neighbor 

SIP process, applying CAA Section I 79B to address international transport and excluding exceptional 

event data from international sources under CAA Section 3 19 -and that these moves may have a greater 

impact on NAAQS attainment than the level of the standard. 

Thank you for the attention to the enclosed comments, Principles for Addressing Interstate and 

International Ozone Transport. AAPCA and its members look forward to working with EPA to help 

carry out these principles to address interstate and international ozone transport under the 2008 and 2015 

ozone NAAQS. If you have any questions, please contact Mr. Clint Woods, Executive Director, at 

cwoods@csg.org or (859) 244-8040. 

Sincerely, 

L tiJJJzu· ./ 

Sean Alteri Stuart Spencer 

Director, Kentucky Division for Air Quality 

2017 President, AAPCA 

Associate Director, Office of Air Quality 

Arkansas Department of Environmental Quality 

20 18 President, AAPCA 

3 http://www.csg.org/aapca site/documents/GreatestStory4-17-17 .pdC 4 https.://\vw\v,epa.gov/ncwsrelcascs/air-quality-continucs~improvc-\\'hilc-us-economy-continues-grow. 

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Principles for Addressing lnterstate and lnternational Ozone Transport 

U.S. EPA has an opportunity to establish a revised, transparent, state-driven framework for addressing 

interstate transport as well as to animate provisions to provide regulatory relief for state and local air 

agencies affected by international ozone contributions. These key decisions (which could be facilitated by 

the Agency's recently created Task Forces on Regulatory Reform and Ozone Cooperative Compliance') 

can help address CAA responsibilities in a manner consistent with cooperative federalism, Executive 

Orders (EOs) on Promoting Energy Independence and Economic Growth' and Enforcing the Regulatory 

Reform Agenda,' and the Administration's America First Energy Plan and Foreign Policy. These changes 

would also be consistent with Administrator Pruitt's belief "in states working co\laboratively to address 

crossborder environmental challenges," and intention to "engage in a transparent process that will allow 

states to have a meaningful opportunity to understand their obligations with regard to reducing emissions 

that cause or contribute to nonattainment or interference with maintenance in other states through the SIP 

process."8 

Updated EPA modeling efforts are a critical first step. However, these technical changes are inextricably 

linked to the overall EPA framework which could ensure approvable SIPs- rather than Federal 

Implementation Plans (FIPs) which may not even provide a full remedy address interstate transport. 

Court-ordered FIPs may be issued to 21 states for interstate transport obligations that were not addressed 

under the CSAPR Update,' and EPA has received a number of petitions for administrative reconsideration 

of the underlying rule. 10 Regardless of the timing of EPA's issuance of initial area designations, air 

agencies must meet an October 2018 deadline for Good Neighbor SIPs under the 2015 ozone NAAQS. In 

addition to being of interest to air agencies that have been impacted directly by prior interstate transport 

rules, EPA's modeling data may also affect other states as the Agency has relied on past transport 

modeling to disapprove interstate transport elements of SIP submissions.'' 

EPA should re-evaluate the I percent threshold for significant contribution 

In CSAPR, the CSAPR Update, and its 2017 NODA, EPA has relied upon a "contribution screening 

threshold"12 of I percent to identify upwind states that may significantly contribute to downwind 

nonattainment and/or maintenance receptors. Although EPA has "historically found that the I percent 

threshold is appropriate,"" this approach is not preordained and EPA has also used several alternative 

metrics for previous significance assessments. The U.S. Supreme Court has noted delegation to EPA to 

"select among reasonable options" in allocating upwind state contributions to downwind pollution. 14 

5 https://www.epa.gov/sites/production/files/20 17 -06/documents/az ducey 6-6-17.pdf. 6 82 FR 16093. 7 82 FR 12285. 8 hllps://www.epw.scnate.gov/public/ cachc/liles/6d95005c-bd I a-4 779-al7c-be83 I db6866a/scott-pruitt-gfrrcsponscs-OI.I8.2017.pdt: 

9 The U.S. District Court for the Northern District Court of California has ordered EPA to issue a FIP for Kentucky 

no later than June 30, 2018. For more information, see CASE NO. 3:15-CV-04328-JD, "EPA'S OPP. & CROSSMOTION," filed December 15, 2016, page 17 ("However, EPA could not conclude that the reductions required by 

the CSAPR Update represent the full amounts of emission reductions necessary for Kentucky (or 20 other states) to 

satisfy the requirements of the good neighbor provision.") 10 https://w\vw.epa.gov/airmarkcts/pctitions~rcconsideration-reccivcd-csapr-updatc. 11 For example, see 82 FR 9142. 12 81 FR 54573. 13 82 FR 1740. 14 EPA v. EME Homer City Generation, L.P., (2014). 
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While EPA characterizes this I percent threshold as a screening mechanism, in practice it is used as a 

black-and-white test for significant contribution. 

AAPCA noted in its March 13, 2017 comments on EPA's preliminary transport modeling for the 2015 

ozone NAAQS that: "EPA should consider whether an alternative threshold above 0.7 ppb is appropriate, 

particularly as this preliminary modeling includes complex, uncertain, six-year projections for linkages 

across long distances for contributions virtually undetectable by monitors." The need to evaluate 

alternative thresholds is even more important due to increasingly stringent NAAQS. As Ohio EPA stated 

in their comments on EO 13777: "The lower standards get with each subsequent review by U.S. EPA, 

approaching background concentrations, the more meaningful this I percent threshold becomes and the 

more insurmountable the task of finding reductions to eliminate the contribution. U.S. EPA must 

reevaluate this process and raise this threshold if it intends to continue this framework. " 15 

These concerns were reiterated in NODA comments from a dozen AAPCA state members, 16 as well as in 

comments on EPA regulatory reform. 17 A number of state comments discussed EPA's inconsistency in 

continuing to use this 0.7 ppb threshold after recommending a Significant Impact Level value of 1.0 ppb 

in its 2016 draft Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of 

Significant Deterioration Permitting Program." Kentucky cites past EPA practice related to a Section 126 

petition in which cross-border emissions of approximately three percent of a NAAQS in a nonattainment 

area was not considered to cause or contribute to violations." 

EPA should allow the use of Anthropogenic Precursor Culpability Assessment (APCA), Ozone Source 

Apportionment Technology (OSA T), Decoupled Direct Method (DDM), and zero-out brute force (BF) 

sensitivity runs to determine contribution from upwind states to downwind receptors. EPA should also 

consider a transition from a 3x3 array to a Ixl array over some coastal monitors and develop emissions 

data files to support finer-grid (e.g., 4 kilometer) modeling domain. 

EPA should not reguire states to offset international or non-anthropogenic emissions through interstate 

transport requirements 

U.S. EPA modeling, state agency comments, and recent peer-reviewed science indicate that international 

emissions and background ozone contribute significantly to downwind nonattainment and maintenance 

areas. EPA recognized in its proposed SIP Requirements Rule that "contributions to U.S. ozone 

concentrations from sources outside of the U.S., which can be from nearby sources in a bordering country 

or from sources many thousands of miles away, can affect to varying degrees the ability of some areas to 

attain and maintain the 2015 ozone NAAQS."20 In the memorandum, "Tools for Addressing Background 

Ozone," which accompanied the October 2015 revision to the ozone NAAQS, EPA noted that: "Under 

"Ohio Environmental Protection Agency, comments on U.S. EPA's Evaluation of Existing Regulations, May 15, 

2017 (pg. 2). 16 See related comments from: Alabama (pg. 1); Arkansas (pg. I); Georgia (pg. I, 6 -7); Kentuckv (pg. 3- 4); 

Nevada (pg. 1); North Carolina (pg. 5-6); Ohio (pg. 1); South Carolina (pg. 2); Texas (pg. 7); West Virginia (pg. 3 

- 4); Wyoming (pg. 4). 17 See related comments from North Carolina (Attachment, pg. 2- 3) and Ohio (pg. 1). 

"Draft Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant 

Deterioration Pennitting Program. In the accompanying legal document, EPA states it has "often equated an 

insignificant impact with one that is trivial or de minimis in nature.'' 19 Kentuckv Di\0, April6, 2017, pg. 3 -4. 20 81 FR 81303. 

4 
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II A$SOCIATIOfl~ Al~!ltYRICillll MIN(IU ... . . . I l Mi 

the Clean Air Act, states are not responsible for reducing emissions from background sources."21 Despite 

these acknowledgements, the failure to account for these contributions in the interstate transport process, 

upwind states are being "required to offset compensate for international emissions."" 

U.S. EPA's August 14 Report to Congress on Administrative Options to Enable States to Enter into 

Cooperative Agreements to Provide Regulatory Relief for Implementing Ozone Standards highlights 

"understanding the role of background ozone levels" and "appropriately accounting for international 

transport" as two of the complex issues the Agency and its Ozone Cooperative Compliance Task Force 

will be evaluating."' AAPCA encourages EPA to examine these factors in the interstate transport context 

as well. In their comments on the proposed revisions to the ozone NAAQS in 2015, more than half of 

state environmental agencies from across the country identified background ozone or international 

transport as an achievability or implementation challenge under a revised standard. 24 Recent comments 

suggest that these contributions are significant and that EPA's failure to address these concentrations 

penalizes upwind states for international contributions: 

"Because the modeling domain only includes small fractions of Canada and Mexico, it is very likely 

that !lQ monitor east of the Rockies would be classified as 'nonattainment' or 'maintenance' were it 

not for 'emissions emanating from outside of the United States'. A rational interpretation of Section 

818 of the Federal Clean Air Act (42 U.S. Code, §7509a), therefore, is that while some monitors still 

may not attain the 2015 ozone standard by 2023, upwind states should not be held responsible for 

making extraordinary emission reduction to compensate for international emissions."- Texas 

Commission on Environmental Quality (CEQ), comments on U.S. EPA's 2017 NODA, AprilS, 2017 

(pg. 10) 

"EPA's modeling identified six counties in four western states, none of which adjoin international 

borders, with contributions to the 2017 DV from manmade state sources of less than 12 percent and 

contributions from manmade U.S. sources less than 25 percent, including one with contributions from 

manmade U.S. sources of 10 percent ... Moreover, EPA's modeling for the 2008 Ozone NAAQS 

transport assessment demonstrates that in 2017, there are 36 monitor locations in 28 counties in 8 

states that will be affected by international contributions of greater than 75 percent of their design 

values. Further, there are 55 monitors in 38 counties that are modeled to be affected by international 

contributions greater than 70 percent of the monitors' design values."- Western States Air Resources 

Council (WESTAR), comments on U.S. EPA's proposed SIP Requirements Rule, February 13, 2017 

(Attachment, pg. I) 

"The latest research estimates ozone transported from Asia range from a few ppb to more than 15 ppb 

under certain conditions. The science and understanding of international ozone transport is still 

growing, and to prematurely prevent its use would be in conflict with the intent of the Act."- San 

Joaquin Valley Air Pollution Control District, comments on U.S. EPA's proposed SIP Requirements 

Rule, February 13,2017 (pg. 7) 

"For example, the NODA shows 32 sites in Ohio show a significant contribution (up to 3.33 ppb) 

from Canada/Mexico, including many in counties that are not adjoining the Canadian border."- Ohio 

EPA, comments on U.S. EPA's proposed SIP Requirements Rule, February 13,2017 (pg. 11) 

21 https://www.epa.gov/sites/production/filcs/20 15-l 0/documents/20151 001 background ozonc.pdt: 22 Texas Commission on Environmental Quality, comments on U.S. EPA's Preliminary Interstate Owne Transport 

Modeling Data for the 2015 Owne National Ambient Air Quality Standard, April 5, 2017 (pg. 9). 21 http://www.csg.org/aapca site/news/documents/FY 170zoncRRR.PDF. 24 AAPCA, State Environmental Agency Perspectives on ilackground Ozone & Regulatoty Relief, June 2015. 

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I ASSOCIATION Of ru .. II. I'Oii. 11'11. ... . N.CcmTROt. A<iiHCIU !! 

Several recent, peer-reviewed studies suggest international emissions are a major driver of ozone 

concentrations through the U.S. and have offset as much as half of nitrogen oxide emission controls 

in the western U.S.25 

Other analyses indicate that, based on EPA's transport modeling, but for international transport 

(through the identification of boundary conditions, initial conditions, Canadian, and Mexican 

emissions from 20 II), no monitor in the country would have an ozone design value greater than 66 

ppb in 2017 or 57 ppb in 2023?6 

EPA should consistently apply the same approach to identifying and addressing interstate and 

international ozone transport, and the failure to do so subjects states to an overcontrol of emissions as a 

result of international and background contributions. The inconsistency is highlighted by EPA's proposal 

in the SIP Requirements Rule to limit the applicability of Section 179B to only allow areas directly 

adjoining an international border to make international transport demonstrations. As Texas CEQ stated, 

"EPA has routinely linked upwind states to downwind receptors that are significantly distant from the 

upwind state. For example, in the EPA's recent Cross State Air Pollution Rule Update, the EPA identified 

Texas as significantly contributing to ozone nonattainment in Sheboygan County, Wisconsin, 

approximately 900 miles from the Texas border. It is irrational for the EPA to apply one geographic 

standard for interstate transport and another far more restrictive standard for international transport of the 

same criteria pol!utant."27 Similarly, EPA also proposed requiring that areas seeking relief under Section 

179B to show that all Reasonably Available Control Measures (RACM) are implemented, even though 

such a requirement does not exist for downwind areas under recent interstate transport rules.28 

EPA should embrace a state-driven process to address interstate transport, including EPA action on timely 

and relevant SIPs and a re-assessment of expectations for Infrastructure SIPs 

U.S. EPA's August 2017 Report to Congress on Administrative Options to Enable States to Enter into 

Cooperative Agreements to Provide Regulatory Relief for Implementing Ozone Standard~, notes that "all 

states must submit an 'infrastructure' plan, which addresses basic air quality management provisions of 

Section 110 of the Act."29 AAPCA's May 15,2017 comments on EPA regulatory reform described the 

shifting expectations for infrastructure/Good Neighbor SIPs: "Historically, states were required to 

generally demonstrate that they had the adequate authorities and resources in place to comply with each 

requirement in Section IJO(a)(l) and (2). This was commonly achieved by submitting relevant state-level 

rules that provided these authorities and resources to the state. Over the past several years, however, much 

more has been asked of the states to fulfill the requirements of these Infrastructure SIPs (iSIPs) for 

25 Lin, M., Horowitz, L. W ., Payton, R., Fiore, A. M., and Tonnesen, G.: US surface ozone trends and extremes from 

1980 to 2014: quantifYing the roles of rising Asian emissions. domestic controls. wildfires. and climate, Atmos. 

Chern. Phys., 17,2943-2970. 

NopmongcoJ, U., Liu, Z., Stoeckenius, T., and Yanvood, G.: Modeling intercontinental transoort of ozone in North 

America with CAMx tor the Air Quality Model Evaluation lnternationallnitiativc (AQMElll Phase 3, Almas. 

Chern. Phys., 17,9931-9943. 

Verstraeten, W, Neu, J., Williams, J., Bowman, K., Worden, J .• and Boersma!, K., Rapid increases in tronospheric 

ozone production and export from China, Nature Geoscience, August 2015, 1·6. 

Cooper, 0., Langford, A., Parrish, D., and Fahey, D., Challenges of a lowered U.S. ozone standard," Science, June 

2015, 1096-1097. 26 Midwest Ozone Group, "Assessment of International Transport and Improved Ozone Air Quality," (June 22, 

2017) and comments on Proposed Denial of 176A Petition. 27 Texas CEQ, comments on U.S. EPA's 2017 NODA, AprilS, 2017 (pg. 7). 28 Ohio EPA, comments on U.S. EPA's proposed SIP Requirements Rule, February 13,2017 (pg. 11). 29 http://www.csg.org/aapca site/news/documents/FY 170zoncRRR.PDF. 

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_..._ AAPCA~~ 

: 1 

promulgations and revisions of various NAAQS. In fact, the states are now asked to submit infonnation 

for iS IPs that is more appropriate for inclusion into full SIPs or attainment demonstrations. This process 

has become overly burdensome and requires far too many resources."30 

As Ohio EPA indicated in their comments, "U.S. EPA has set a standard for implementation that no State 

could realistically perfonn on their own in order to fulfill their obligation to address the good neighbor 

provision in their infrastructure SIPs, or at least not without significant resource burdens to all the 

individual States. Therefore, States are repeatedly subject to the FIP process and deterred from their right 

to try to address the obligation in the first instance with a SIP."31 Previous interstate transport rules have 

involved U.S. EPA issuing a FIP "before even proposing action on relevant and timely submitted SIPs."32 

States should not be bound by the contribution assessed by U.S. EPA and should be given discretion to 

craft individualized approaches to address interstate transport. 33 

EPA should adjust its methodology for cost-effective NO, controls 

EO 13783 on Promoting Energy Independence and Economic Growth states that" ... necessary and 

appropriate environmental regulations ... are of greater benefit than cost. ... " 34 Under CSAPR, the CSAPR 

Update, and the 2017 NODA, states have repeatedly highlighted concerns about EPA's methodology for 

determining cost-effective NOx controls. As Kentucky explained in their comments on the 2017 NODA, 

"EPA's explanation of the non-linear relationship between emissions reductions ofNOx and the reduction 

of ozone concentrations measured at downwind receptors further highlights the technical limitations of 

interstate transport modeling and questions whether its use is appropriate in determining cost-effective 

control scenarios.'~35 

EPA should reassess its approach to identifYing downwind maintenance and nonattainment receptors 

EPA should base its identification of downwind receptors of interest on monitoring data and consider 

only receptors located in areas designated nonattainment for the applicable standards in its transport 

analysis. EPA should stop treating projected maintenance areas as identical to projected nonattainment 

areas when identifying receptors and quantifying upwind emission reductions. This approach is 

inconsistent with CAA Section l07(a) and results in upwind state NO, budgets that control emissions 

more than the level necessary to maintain attainment with the NAAQS.IfEPA continues including 

maintenance receptors that were never designated nonattainment in their framework, the Agency needs to 

adopt a more realistic scenario for calculating future design values. Prior to CSAPR, U.S. EPA used a 

"monitored-plus-modeled" approach to assess interstate transport and determine remedies." 

30 http://www.csg.org/aapca site/documents/ /\APC /\-EPARegulatoryReform-DocketlDEP /\-HQ-OA-20 17-0190-5-

IS-17.pdf. 

31 Ohio EPA, comments on U.S. EPA's Evaluation of Existing Regulations, May 15, 2017 (pg. 2). 32 Texas CEQ, comments on CSAPR Update (pg. 1). 33 See related comments: Arizona Department of Environmental Quality, comments on U.S. EPA's regulatory 

reform, May IS, 2017 (Attachment I, pg. I); Texas CEQ, comments on 2017 NODA, April 5, 2017 (pg. 3); Ohio 

EPA, comments on 2017 NODA (cover letter, pg. 2). 34 82 FR 16093. 35 Kentucky Division for Air Quality, comments on 2017 NODA, April6, 2017 (pg. 5). See similar comments on 

CSAPR Update by Arkansas (pg. I- 2), Indiana (pg. 1), Kentucky (pg. 2) Mississippi (pg. 2), Ohio (pg. 1), 

Tennessee (pg. 1), Iowa, and Michigan. 35 62 FR 60324- 60325; 69 FR 4581. 36 62 FR 60324- 60325; 69 FR 4581. 

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The Wyoming Department of Environmental Quality (DEQ) argued in comments on the 2017 NODA that 

"EPA's recent actions on transport SIPs have departed from previous approaches to determining 

adequacy by using the results of a single model rather than weighing all available evidence as it did prior 

to using CSAPR thresholds."" EPA should differentiate nonattainment and maintenance areas, utilize 

monitoring data, and account for air quality trends when identifYing affected receptors. 38 

EPA needs to address controls on in-state sources first 

Section l07(a) of the Clean Air Act states: "Each State shall have the primary responsibility for assuring 

air quality within the entire geographic area comprising such State by submitting an implementation plan 

for such State which will specifY the manner in which national primary and secondary ambient air quality 

standards will be achieved and maintained within each air quality control region in such State." In order 

to avoid disproportionate emission reductions from upwind states, U.S. EPA should ensure that 

downwind areas should address local, in-state control strategies for downwind nonattainment or 

maintenance receptors. Tennessee stated in its comments on the CSAPR Update," ... because the 

circumstances are such that downwind states are going to need more reductions to attain the NAAQS than 

is represented by the upwind states contribution, EPA should first identify reasonable reductions available 

within the downwind nonattainment areas and exhaust those opportunities first. "

39 

EPA should abandon non-transparent and unreliable modeling platforms 

AAPCA agencies have continued concern about EPA's reliance on the Integrated Planning Model (!PM), 

and appreciate Agency moves to shift to more transparent platforms. Air agencies have catalogued a 

series of unit-level errors, including inaccurate retirements, in !PM runs used to support prior interstate 

transport rules."' !PM is a proprietary model that often forces air agencies to guess about key inputs and 

assumptions. As such, its use by EPA is inconsistent with provisions of EO 13777 (requiring Regulatory 

Reform Task Forces to identifY regulations that "rely in whole or in part on data, information, or methods 

that are not publicly available or that are insufficiently transparent to meet the standard for 

reproducibility") and EO 13783 (establishing a policy that environmental regulations "are developed 

through transparent processes that employ the best available, peer-reviewed science and economics"). 

The 2017 NODA acknowledges other projection methodologies, such as the approach used by ERTAC, 41 

and these alternatives may have advantages of non-proprietary code, the ability to be transferred to air 

agencies at no cost, and more frequently updated inputs." AAPCA members have expressed concerns 

about !PM projections that often "include erroneous assumptions about the future use of electric 

generating units"43 and "one size fits all assumptions."" Currently, EPA is preparing emissions 

37 Wyoming DEQ, ~on 2017 NODA, Apri16, 2017 (pg. 3). 38 See related comments from: Arkansas DEQ, comments on CSAPR Update, pg. 4; Texas CEQ, comments on 2017 

NODA (pg. 8); AAPCA, comments on 2017 NODA (pg. 4); North Carolina Division of Air Quality, comments on 

CSAPR Update (pg. 12). 39 Tennessee DEC, comments on CSAPR Update, pg. 4. Sec also: North Carolina Division of Air Qualitv, pg. 3-4. 40 See, for example, 2016 comments on the proposed interstate transport rule for the 2008 ozone NAAQS by 

environmental agencies of Georgia (pg. 4 -5), Indiana (pg. 1), Louisiana (pg. 2-3), Kentucky (pg. 2), Mississippi 

(pg. 1 - 2), North Carolina (pg. 1), North Dakota (pg. I), Ohio (pg. 2), South Carolina (pg. I), Tenrrcssce (pg. 2 - 3), 

Virginia (pg. 5). illinois, Iowa.~' Missouri, New York, Wisconsin, and Connecticut. 41 82 FR 1736. 42 http://www.csg.org/aapca site/news/documents/CSAPRModelingwithERT AC-1 0-24-20 16.pdf. 43 South Carolina Department of Health and Environmental Control, comments on 2017 NODA, Apri14, 2017 (pg. 

1). 

44 Ohio EPA, commerrts orr2017 NODA, April6, 2017 (pg. 5). 

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inventories and modeling for 2023 in response to the court-ordered deadline to implement a Federal 

Implementation Plan for Kentucky. States believe that this is an excellent opportunity to accept and utilize 

the latest ERTAC modeling results, with specific input provided by state air agencies. 

EPA should seek to animate other provisions for regulatory relief for international transport 

In light of peer-reviewed science and EPA modeling showing significant contribution to ground-level 

ozone from international sources, EPA and its Ozone Cooperative Compliance and Regulatory Reform 

Task Forces should seek to maximize regulatory relief for air agencies. Utilizing provisions in the Clean 

Air Act to avoid penalizing state and local governments for international ozone should be a key element 

of the Administration's pursuit of an America First Energy Policy and Foreign Policy. There are a number 

of provisions designed to provide regulatory relief from international contributions within EPA's existing 

authority and the Agency should seek to provide maximum flexibility through the final SIP Requirements 

Rule or other mechanisms. 

Section 179B-International Transport 

According to EPA, Section 1798 of the CAA is a "tool for air agencies to address exceedances of an 

ozone standard potentially caused by background ozone" that "allows EPA to approve an ozone 

attainment plan for a nonattainment area, if the state demonstrates that it has taken appropriate local 

measures and international transport of pollution is a significant impediment to meeting the standard on 

time."45 However, an AAPCA survey of comments on the 2015 proposed revision to the ozone NAAQS 

found that more than one-third of state environmental agencies commented on limitations to the use of 

CAA Section 1798 for demonstrating attainment "but for" international emissions. A follow up survey of 

AAPCA members found that at least half of responding agencies identified a lack of familiarity with this 

tool, resource and time constraints, low likelihood of EPA approval, and lack of applicability for their 

state as limitations to the use of Section 1798.46 As EPA noted in its final revisions to the Exceptional 

Events Rule, "CAA Section 1798 ... does not provide a pathway from designation as a nonattainment 

area."47 

In order to animate this provision and follow Congress' intent, 48 U.S. EPA should: 

• Not limit this relief to areas affected by Mexico or Canada, or areas directly adjoining international 

borders, as suggested in the proposed SIP Requirements Rule. 49 EPA previously stated that it "does 

not believe this provision is restricted to areas adjoining international borders."50 As discussed 

previously, EPA modeling and recent, peer-reviewed studies suggest significant contributions from 

non-North American sources and for areas not adjoining international borders. 

IdentifY a deadline for EPA action on Section 179B demonstrations." 

45 https://www.epa.gov/sites/production/files/20 15-1 0/documents/20 151001 background ozone.pd[ 46 AAPCA, State Environmental Agency Perspectives on Background Ozone & Regulatory Relief, June 2015. 47 80 FR 72865. 48 During debates over CAA Amendments of 1990, Senator Gramm of Texas stated: "It is unfair to hold El Paso 

accountable for pollution that is generated in a foreign country that they have no control over." Senate Debate on S. 

1630, March 9, 1990, reprinted in 4 Environment and Natural Resources Policy Division, Library of Congress, A 

Legislative History of the Clean Air Act Amendments 5674, 5742 (1998). See related comments from: Arizona (pg. 

11); and WESTAR (pg. 3). 49 See related comments from: Arizona (pg. 8); Ohio (pg. 10- 11); North Carolina (pg. 10- II); Texas (pg. 7- 8); 

Wvoming (pg. 4- 5); San Joaguin Valley APCD (pg. 6 -7); and, WESTAR (pg. 1- 2). 50 80 FR 12294. 51 See related comments from: Arizona (pg. 8) and WESTAR (pg. 2). 

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7 

Avoid requiring that areas making demonstrations under Section l79B implement RACT and 

RACM52 before qualifYing for relief and, if possible, limit Nonattainment New Source Review 

requirements." 

Ensure consistency between the handling of interstate and international ozone transport, as discussed 

above. 

Provide updated guidance or a general framework outlining steps for successful Section l79B 

demonstrations." EPA's summary of the background ozone workshop in early 2016 identifies a 

number of areas in which state air agencies have requested clarity." EPA should consolidate and 

update related guidance. 56 

Give states maximum discretion regarding international transport demonstrations. 57 

Section 319- Exceptional Event Exclusions 

Another tool identified by EPA to address exceedances of the ozone NAAQS is the Exceptional Events 

Rule under CAA Section 3 I 9. AAPCA and its members have provided comments on limitations to the 

use of this tool through comments on the 2015 ozone NAAQS revision and proposed revisions to the 

Exceptional Events Rule.58 EPA has been inconsistent on the applicability of this regulatory relief tool for 

international contributions, as well as to the role of international transport in other CAA programs. 59 In its 

final revisions to the Exceptional Events Rule, the Agency stated: "routine or long-term international 

manmade emissions are not exceptional events because they are caused by human activity that is likely to 

recur at a given location ... "

60 In 2015, EPA concluded: "Although monitored data cannot be excluded for 

a determination of whether an area has attained a NAAQS based solely on the fact the data are affected by 

emissions from outside the U.S., such data may be excluded from consideration if they were significantly 

influenced by exceptional events as described in CAA section 319(b)."6l 

In comments on EPA regulatory reform, the Clark County Department of Air Quality argued that EPA 

should use the same approach to excluding monitored data that is influenced by exceptional events as it 

52 See related comments from: Arizona (pg. 8- I 0); Ohio (pg. II); North Carolina (pg. II - 12); Texas (pg. 7- 8); 

Wyoming (pg. 4 -5); and, WESTAR (pg. 3). 53 See related comments from: Arizona (pg. l ). 54 Sec related comments from: Arizona (pg. 8); North Carolina (pg. 12); San Joaquin Valley APCD (pg. 7); and 

WESTAR (pg. 2). Also see comments on the proposed 2015 ozone NAAQS by Texas (pg. 34- 35) and Wyoming 

(fg. 3), as well as the WESTAR comments on background ozone white paper (pg. 2, 10- II). 5 U.S. EPA, "High-Level Summary of Background Ozone Workshop," March 15,2016 (pg. 3). 56 For example, EPA's Criteria for Assessing he Role of Transported Ozone/Precursors in Ozone Nonattainmcnt 

Areas was last updated in May 1991. 57 Arizona DEQ, comments on EPA's regulatory reform (pg. 1). 58 Compiled comments here. See also: AAPCA's June 2015 report, Stale Environmental Agency Perspectives on 

Background Ozone & Regulatory Relief. 59 For example, in EPA's 1999 revisions to regional haze regulations, the Agency stated: "The EPA agrees that the 

projected emissions from international sources will in some cases affect the ability of States to meet reasonable 

progress goals" (64 FR 35736). However, comments from the Alaska Department of Environmental Conservation 

(DEC) on EPA regulatory reform highlight a related concern: "ADEC supports the ability to deduct emissions 

originating from anthropogenic, extreme episodic natural events, and international emission sources from our 

baseline emissions and progress to reaching natural visibility conditions in 2064. However, ADEC is concerned that 

EPA acted arbitrary and capriciously, and contrary to the Clean Air Act, by requiring that Alaska quantify 

international emission impacts on Class I Areas in Alaska without first identifying the methods for doing so and by 

shifting EPA's responsibilities under the CAA to quantify and address those international air emissions to the state." 60 81 FR 68228. 61 80 FR 12293. 

10 
286 


30463.253

a 

does for monitored data that is influenced by international transport. These comments also stated: "it is 

important to delay issuance of a final rule on implementation of the 2015 NAAQS for ozone until EPA 

has had an opportunity to evaluate the extent to which foreign sources of air pollution ... impact 

designations of areas under section 107(d) of the [CAA] as well as attainment and maintenance of 

NAAQS."62 WEST AR encouraged EPA to further characterize contributions from international 

anthropogenic emissions which "would facilitate the identification of long-range transport events which 

may qualifY for [Exceptional Event Rule] relief under certain meteorological conditions."63 

Other Approaches to Regulatory Relief 

In addition to the tools discussed above, EPA's 2015 White Paper on background ozone identified three 

other mechanisms including through revised data handling and designations -to account for 

background or internationally transported ozone. EPA stated that these mechanisms were not discussed 

"due to legal or other deficiencies. "

64 EPA should assess the potential for these mechanisms to address 

international transport. In light of the consensus comments of state environmental agencies raising 

concerns about internationally transported ozone creating NAAQS implementation and achievability 

challenges,65 EPA and the Clean Air Scientific Advisory Committee should consider these contributions 

in future NAAQS reviews. EPA should also re-examine the findings and recommendations from the 

20 I 0 National Research Council report, Global Sources of Local Pollution: An Assessment of LongRange Transport of Key Air Pollutants to and from the United States66 

Additionally, WESTAR's comments on the background ozone white paper identified concepts for further 

discussion. These included a principal contributor concept, where "where all background contributions, 

regardless of origin, are excluded by either a change in the form of the standard or via the [Exceptional 

Events Rule] from attainment/nonattainment designation following a demonstration that background is 

the principal contributor to monitored exceedances."67 As Nevada Division of Environmental Protection 

(DEP) comments on EPA regulatory reform stated: "Significant sources of ozone in these areas are not 

controllable by the states, with international transport, inter-state transport, western wildfires, and 

stratospheric intrusion the principal contributors. "

68 

62 Clark County Department of Air Quality, commcnl> on U.S. EPA's regulatory reform, May 15,2017 (pg. 2). 

"WESTAR, comments on background ozone white paper (pg. 7). 64 U.S. EPA, "Implementation of the 2015 Primary Ozone NAAQS: Issues Associated with Background Ozone," 

White Paper for Discussion, December 30,2015 (pg. 12, footnote 41). 65 AAPCA, State Environmental Agcncv Perspectives on Background Ozone & Regulatory Relict; June 2015 66 National Research Council, Global Sources o(Local Pollution: An Assessment o(Long-Range Tramport o(Key 

Air Pollutants to and fi·om the United States, 2010. 67 WEST AR, "Western States Responses Regarding Background Ozone and Recommendations for Additional 

Eflorts in the Western U.S," May II, 2016 (Attachment, pg. 9). 68 Nevada DEP, comments on EPA regulatory reform (pg. 1). 

II 
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.............. AAPCA;;~ I] 3 ASSOCIATION OF AIR POLLUTliN CONJROL AGENCIES g IS . 

October 31,2017 

Administrator Scott Pruitt 

U.S. Environmental Protection Agency 

William Jefferson Clinton Building 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

Subject: Draft FY 2018-2022 EPA Strategic Plan (Docket ID: EPA-HQ-OA-2017-0533) 

Dear Administrator Pruitt: 

The Association of Air Pollution Control Agencies (AAPCA) 1 appreciates the opportunity to provide 

feedback to the U.S. Environmental Protection Agency (EPA) on the Draft FY 2018- 2022 EPA 

Strategic Plan ("Strategic Plan"). The draft Strategic Plan identifies three strategic goals, in addition to 

short-term priority goals and updated objectives. These strategic goals include: 

Core Mission: Deliver real results to provide Americans with clean air, land, and water. 

Cooperative Federalism: Rebalance the power between Washington and the states to create tangible 

environmental results for the American people. 

Rule of Law and Process: Administer the law, as Congress intended, to refocus the Agency on its 

statutory obligations under the law. 

AAPCA members appreciate the emphasis on these three strategic goals, and the corresponding 

comments are grounded in recent consensus comments and reports transmitted from AAPCA since 2015. 

Goal I - Core Mission 

Within this goal, EPA's identifies Objective 1.1 to "Improve Air Quality" and the accompanying strategic 

measure to reduce the number of non-attainment areas under the National Ambient Air Quality Standards 

(NAAQS) program. AAPCA members applaud the prioritization of this objective, and related 

recommendations have been included in a variety of recent Association resources. In April2017, AAPCA 

released a new report, The Greatest Storv Seldom Told: Profiles and Success Stories in Air Pollution 

Control, which found that, through the Clean Air Act's (CAA) framework of cooperative federalism, 

hard-working state and local air agencies have been responsible for tremendous progress in virtually 

every measure of air quality. This report catalogued these trends through the inclusion of key metrics for 

air quality, compliance and enforcement activity, and permitting efficiency. We look forward to working 

with EPA to continue these trends and encourage EPA to examine metrics contained in this report as well 

as the Environmental Council of the States' recently launched interactive web tool, ECOS Results, 

designed to communicate state stories of public health and environmental progress.' 

Several recent AAPCA resources have identified recommendations to reduce the number of 

nonattainment areas. In September 2017, AAPCA transmitted Principles for Addressing Interstate and 

International Ozone Transport, which identified an opportunity or U.S. EPA to "establish a revised, 

1 AAPCA is a national, non-profit, consensus-driven organization focused on assisting state and local air quality 

agencies and personnel with implementation and technical issues associated with the federal Clean Air Act. AAPCA 

represents more than 40 state and local air agencies, and senior officials from 20 state environmental agencies 

currently sit on the AAPCA IJoard of Directors. You can find more information about AAPCA at: 

http://www.cleanai•·act.org. 

2 ECOS Results can be accessed at www.ecosresults.org. 
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I'.SSOCIATION OF I'.IR POLLUTION CONT.I!OL ACiENCIES 

transparent, state-driven framework for addressing interstate transport as well as to animate provisions to 

provide regulatory relief for state and local air agencies affected by international ozone contributions."' 

The experience of AAPCA members suggests that addressing international ozone transport - including 

not requiring states to offset international contributions through the Good Neighbor State Implementation 

Plan (SIP) process, applying CAA Section 179B to address international transport and excluding 

exceptional event data from international sources under CAA Section 319- may have a greater impact on 

NAAQS attairunent than the level of the standard. 

AAPCA and many of its member agencies provided comments to EPA on regulations that may be 

appropriate to repeal, replace, or modify under Executive Order (EO) 13777 on Enforcing the Regulatory 

Reform Agenda.' These comments included general suggestions on improving the NAAQS and SIP 

process as well as identifying specific regulations, including the Exceptional Events Rule, 20 15 ozone 

NAAQS, interstate transport rules, and data requirements rule for the 2010 !-hour sulfur dioxide primary 

NAAQS, which could help reduce the number ofnonattainment areas. In addition, in 2015, AAPCA 

released surveys of state envirorunental agency perspectives on the need for timely NAAQS 

implementation tools and on background ozone and tools for regulatory relief.' 

Goal 2- Cooperative Federalism 

AAPCA regularly tracks state and local envirorunental agency comments on EPA rulemakings and Clean 

Air Act issues, many of which highlight the need for a state-driven air quality planning process. AAPCA 

has recently compiled feedback, including comments by member agencies, on the following regulations 

and topics: EPA actions related to ozone and interstate transport;6 regional haze;7 exceptional events;' 

EPA's startup, shutdown, and malfunction state implementation plan call ("SSM SIP Ca11"); 9 and, 

permitting. 10 Related comments on EPA regulatory reform include identification of federal 

implementation plans, guidance documents as de facto rulemaking, the SSM SIP Call, and the Clean 

Power Plan as other areas affecting state-driven planning. 11 

3 AAPCA, Princioles for Addressing interstate and International O:one Transport, September 2017. 4 On May 15,2017, AAPCA submitted comments to U.S. EPA on regulations that may be appropriate for repeal, 

replacement, or modification under Executive Order 13777 on Enforcing the Regulatory Reform Agenda. Links to 

other state and local agency comments can be found here. On July 19, 2017, AAPCA released a new report, The 

State of Regulatory Reform: Navigating State Perspectives on Clean Air Act Regulations Under t.Xecutive Order 

13777. 

SSfate Environmental AgencvPerspectives on Timelv NAAQS implementation (September 2015); State 

Environmental Agencv Perspectives on Background O=one & Regulatory Re!ief(June 2015). 6 Comments have been compiled on: EPA's proposed Response to December 9, 2013 CAi\ Section 176A Petition 

From Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York. Pennsylvania. Rhode Island 

and Vermont; EPA's Preliminary Interstate Ozone Transport Modeling Data f(>r the 2015 Ozone National Ambient 

Air Quality Standard (NAAQS); Implementation of the 2015 NAAQS for Ozone: Nonattainment Area 

Classifications and State Implementation Plan Requirements; Cross-State Air Pollution Rule Update for the 2008 

Ozone National Ambient Air Quality Standards; and the proposed 2015 Ozone NAAQS. 7 State and local air agency comments on Protection ofVisibilitv: Amendments to Requirements fi)r State Plans. 8 State and local agency comments on Proposed Exceptional Events Rule Revisions & Draft Wildfire Guidance. 9 A compilation of state and local agency comments on the SSM SIP Call can be found here. 10 State and local agency comments on EPA's proposed Revisions to the Title V Permitting Program Regulations to 

Improve the Petitions Process and proposed Revisions to the Public Notice Provisions in Clean Air Act Permitting 

Programs. 

11 AAPCA, Principles for Addressing Interstate and International O=one Transport, September 2017. 

2 
289 


30463.256

In addition to the objectives and strategic measures identified in the Strategic Plan, AAPCA encourages 

EPA to identifY avenues to increase the early participation of state, local, and tribal experts through 

federal advisory committees. We appreciate recent efforts by the Administrator to encourage nominations 

and select qualified experts from state and local environmental agencies for service on critical advisory 

panels like the Clean Air Scientific Advisory Committee (CASAC), Science Advisory Board (SAB), and 

the Board of Scientific Counselors. In July 2017, AAPCA and The Council of State Governments 

announced the public release of STATES AT THE TABLE: Engaging Energy and Environmental 

Opportunities with Federal Advisory Committees, located at www.cooperativefederalism.org. This 

resource seeks to get more state officials involved on the front end ofthe regulatory and scientific 

development process at agencies like EPA. In September 2017, AAPCA submitted comments on the list 

of candidates under consideration for U.S. EPA's chartered SAB and chartered CASAC, both arguing that 

geographically diverse state and local officials have a unique, independent perspective as a result of their 

on-the-ground experience carrying out the Clean Air Act and other environmental statutes. 12 

Objective 2.1, "Enhance Shared Accountability," promotes the role of joint governance and compliance 

assistance in improving environmental protection. AAPCA and its members have provided feedback on 

critical grant programs and the need for stable, adequate resources to enable this shared accountability. In 

May 2017, AAPCA transmitted testimony to the U.S. House Appropriations Subcommittee on Interior, 

Environment, and Related Agencies regarding FY 20!8 appropriations for U.S. EPA's State and Local 

Air Quality Management Grants, underscoring the importance of "Grants to state and local air agencies, 

including under Section 103 and 105 of the [CAA] and funds negotiated by states and U.S. EPA to be 

taken off the top for critical training needs."13 Updated feedback from state and local agencies can also be 

found in comments for the Office of Air and Radiation and Office of Enforcement and Compliance 

Assurance ahead of EPA's recently finalized FY20 18-2019 National Program Manager Guidances. 14 

Objective 2.2, "Increase Transparency and Public Participation," seeks to expand stakeholder 

collaboration and provide effective platfonns for engagement. AAPCA members support a strengthening 

of partnerships with states, tribes, and communities. AAPCA has highlighted transparency concerns in 

comments on a variety of topics. For example, in September 2016, AAPCA sent a letter to U.S. EPA's 

Office of Enforcement and Compliance Assurance and Office of Air and Radiation concerning data 

display issues on Enforcement and Compliance History Online (ECHO).~' AAPCA agencies have also 

expressed continued concern about EPA's reliance on the Integrated Planning Model (!PM), and 

appreciate Agency moves to shift to more transparent platforms. !PM is a proprietary model that often 

forces air agencies to guess about key inputs and assumptions. As such, its use by EPA is inconsistent 

with provisions of EO 13777 (requiring Regulatory Refonn Task Forces to identify regulations that "rely 

in whole or in part on data, infonnation, or methods that are not publicly available or that are 

insufficiently transparent to meet the standard for reproducibility") and EO 13783 (establishing a policy 

that environmental regulations "are developed through transparent processes that employ the best 

available, peer-reviewed science and economics"V' 

12 ln September 2017, AAPCA submitted comments on the list of candidates under consideration for U.S. EPA's 

chartered SAB as well as comments on the list of candidates for U.S. EPA's chartered CASAC. 13 http://www.csg.org/aar~cuments/ AAPCATestimony-U.S.HouselnteriorAppropriations-5-23-17.pdf. 14 EPA response to comments for the Office of Air and Radiation and Otlice of Enforcement and Compliance 

Assurance ahead of EPA's recently finalized FY2018- 2019 National Program Manager Guidances. 15 http://www.csg.org/aapca site/documents/AAPCA-ECHODisplaylssues-9-2-2016.pdf. 16 AAPCA, Principles (or Addressing Interstate and International Ozone Transport, September 2017. 

3 
290 


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ASSOCIATION OF AIR POLLUTION CONTROL AGENCIES 

Goal3- Rule of Law and Process 

AAPCA members support a focus on statutory obligations. For example, recent Association comments on 

candidates for the SAB and CASAC have focused on the statutory requirements for those panels. 17 

Objective 3.1 seeks to enforce environmental laws to correct noncompliance, noting the critical role of 

state and local agencies in compliance and enforcement activities. According to U.S. EPA's ECHO, states 

conducted full compliance evaluations related to the Clean Air Act for more than 14,500 facilities in 

2016, more than 80 times as many that were conducted by EPA. For the more than 4,000 facilities 

subjected to formal or informal enforcement actions in 2016, more than 90 percent were carried out by 

states- 18 times the number carried out by U.S. EPA. 18 

In "External Factors and Emerging Issues" for Objective 3.1 (and echoed in Objective l.l), EPA 

discusses advanced monitoring technology and shifting paradigms for air quality data. AAPCA has 

developed a fact sheet, entitled Preparing for Personal Air Sensors: Definition, Opportunities, and Data 

Limitations, to help air agencies communicate about advanced monitors and low-cost sensors. 19 

Assessments of emerging monitoring technologies by AAPCA members informed the contents of this 

publication. In The Greatest Story Seldom Told, AAPCA highlighted the critical role of state and local 

agencies in communicating and contextualizing air quality information "in a world of social media as well 

as the advancement of so-called 'Big Data' and highly localized measurement technologies including 

low-cost personal air sensors."20 State and local agencies are often the first point of contact for 

community air quality concerns. 

Objective 3.4 seeks to streamline and modernize permitting and reporting systems. AAPCA highlighted 

in The Greatest Story Seldom Told that member states in 2016 averaged only a 15 percent backlog for 

renewing Title V permits among states with more than I 00 Title V sources, compared to the national 

average of 20.5 percent. AAPCA and member reviews of EPA regulatory reform have identified a 

number of permitting and reporting requirements ripe for modernization including: Cross-Media 

Electronic Reporting Rule (CROMERR); Title V permitting requirements; Revisions to the Public Notice 

Provisions in Clean Air Act Permitting Programs; permitting requirements for wood burning air curtain 

incinerators; and Prevention of Significant Deterioration (PSD) permit review.21 

Thank you for the attention to these comments. If you have any questions, please contact Mr. Clint 

Woods, Executive Director, at cwoods@csg.org or (859) 244-8040. 

Stuart Spencer 

Associate Director, Arkansas Department of 

Environmental Quality 

President, AAPCA 

17 AAPCA comments on the list of candidates under consideration for EPA's chartered SAB and chartered C:ASAC. 18 AAPCA, The Greatesr StorvSeldom Told: Profiles and Success Stories in Air Pollurion Control, April2017. 19 AAPCA, "Preparing for Personal Air Sensors: Definition, Opponunitics, and Data Limitations," June 2017. 20 AAPCA, The Greatest Story Seldom Told: Profiles and Success Stories in Air Pollution Control, April 2017, pg. 

4. 

21 AAPCA, Principles for Addressing fnterstate and International O::ane Transport, September 2017. 

4 
291 


30463.258

March 8, 2018 

The Honorable Scott Pruitt 

Office of the Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

Atlanta Regional Commission 

Re: Request for EPA to Seek an Appeal and Stay of the South Coast Air Quality Management District 

Ruling 

The recent court ruling in the South Coast Air Quality Management District v. EPA et al., No. 15-1115 (D.C. 

Cir. Feb. 16, 2018) vacated portions of the 2008 Ozone Implementation Rule (80 Fed. Reg. 12,264) 

revoking transportation conformity for the 1997 ozone standard. This action appears to result in EPA 

being unable to render conformity determinations for pending transportation plans and programs in 

areas originally classified as nonattainment for the 1997 standard. The attached summary details the 

impacts on the Atlanta region as we understand the court ruling. 

Since Georgia's Metropolitan Planning Organizations (MPOs) have ceased demonstrating conformity to 

the 1997 ozone standard, per the 2008 Ozone Implementation Rule, several urbanized areas in the state 

of Georgia are now without a 1997 ozone standard conforming transportation plan, thereby restricting 

the ability of EPA to approve conformity determinations for amendments to Regior.al Transportation 

Plans (RTPs) and Transportation Improvement Programs (TIPs). Currently in Georgia, the Atlanta Regional 

Commission (ARC) has two RTP/TIP amendments in progress that are impacted by this decision. This 

court decision threatens the implementation of over $1.5 billion in federal transportation funds in FY 

2018 and FY 2019. 

The Atlanta Regional Commission. Georgia Department of Transportation. and Georgia Regional 

Transportation Authority request that EPA appeal this ruling and request a stay on the previous decision 

to ensure the transportation planning and project delivery process can continue on schedule. This action 

will ensure a smooth transition - and prevent delays in the delivery of transportation projects and 

programs- that will impact the lives of millions of Georgians. 

atlantaregional.org 

Internation-al Tower 229 Peachtree St, NE I Suite 100 

Atlanta, Georgia 30303 
292 


30463.259

Sincerely, 

Doug Hooker 

Executive Director 

Atlanta Regional Commission 

~(2.MfM~ Russell McMurry (} 

Commissioner 

Georgia Department of Transportation 

Christopher Tomlinson 

Executive Director 

Georgia Regional Transportation Authority & 

State Road and Tollway Authority 

C: Ken Wagner, EPA 

Attachment: Ozone Implementation Ruling Impacts 

Kerry Armstrong 

Chairman 

Atlanta Regional Commission 

Jamie Boswell 

Chairman 

Georgia Department of Transportation 

Walter M. "Sonny" Deriso, Jr. 

Board Chairman 

Georgia Regional Transportation Authority 
293 


30463.260

April9, 2018 

Honorable Shelley Capito 

Chair 

Subcommittee on Clean Air and Nuclear Safety 

Committee on Environment and Public Works 

U.S. Senate 

410 Dirksen Senate Office Building 

Washington, D.C. 20510 

Dear Chair Capito and Ranking Member Whitehouse: 

Honorable Sheldon Whitehouse 

Ranking Member 

Subcommittee on Clean Air and Nuclear Safety 

Committee on Environment and Public Works 

U.S. Senate 

456 Dirksen Senate Office Building 

Washington, D.C. 20510 

Western Governors appreciate the attention you are bringing to the issues in your April10 

Subcommittee hearing on Cooperative Federalism Under the Clean Air Act: State Perspectives. 

To assist the Subcommittee's consideration of this matter, I request that the following attachments 

be included in the permanent record for the hearing: 

First, a copy of a February 12, 2018 !JilliT from Western Governors to the Environmental 

Protection Agency, Office of Air and Radiation, which sets forth the Governors' priorities for 

air quality policy and regulation in the West; and 

Second, a copy ofWGA Policy Resolution 2017-01 Building a Stronger State-Federal 

Relationship, which provides recommendations for improving cooperative federalism in 

areas of delegated authority, such as the Clean Air Act. 

Please contact me if you have any questions or require further information. In the meantime, with 

warm regards and best wishes, I am 

Sincerely, 

ecutive 

~sD.o~H Director 

Western Governors' Association 

Attachments 

170() 

l11'llYf'l\ 
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30463.261

February 12, 2018 

William Wehrum 

Assistant Administrator 

U.S. Environmental Protection Agency 

Office of Air and Radiation [6103A) 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Dear Assistant Administrator Wehrum: 

Following up on your discussion with the Western Governors' Association (WGA) executive team 

last month, this letter provides greater detail regarding the Governors' priorities for air quality 

policy and regulation in the West. We thank you for your outreach and look forward to working 

closely with the Office of Air and Radiation [OAR) of the Environmental Protection Agency. 

Air Quality Policy and Regulation in the West 

Clean air is essential for strong communities and quality of life. In the West, high elevations, 

extreme variations in topography, vast landscapes, and vacillating weather patterns influence air 

quality. The West is also disproportionately impacted by wildfires, high wind dust events, and 

international transport of pollutants. Pollutant sources, methods of dispersion, and types of 

impacted areas in the West are very different than those in the eastern United States. 

The Clean Air Act [CAA) directs states to reduce emissions from criteria pollutants that states can 

control- not natural or international sources. Air quality in the West has benefited from significant 

emissions reductions over the last 20 years, but the number and types of remaining emissions 

sources controllable by states are somewhat limited. 

To address these uniquely western issues, we believe cooperative federalism in air quality 

management must be strengthened. In some cases, EPA disregards state expertise and authority 

over air quality. In all cases, EPA should recognize state authority under the CAA and accord states 

sufficient flexibility to create air quality programs tailored to individual state needs, industries, and 

economies. WGA Policy Resolution lliZ.:Ql, Building a Stronger State-Federal Relationship, has 

more detail on the Governors' vision for the state-federal relationship. 

We are especially focused on improving communications among EPA, federal and state land 

managers and foresters, and state air quality agencies to address wildfire in the West. Prescribed 

fire is an essential active management tool to mitigate the threat of catastrophic wildfires. 

Obstacles to prescribed fire are putting communities and western lands at unnecessary risk. When 

uncontrolled wildfire does occur, EPA should provide an expedited process to reduce the 

bureaucratic burden of and efficiently approve exceptional events demonstrations. We ask you to 

consider how the Agency can promote the responsible use of prescribed fire and implement the 

other recommendations outlined below. 
295 


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William Wehrum 

February 12, 2018 

Page 2 

Recommendations for Improving Air Quality Policy and Regulation in the West 

Co-Regulation 

Federal agencies should engage with Governors and state air quality agencies as co-regulators. 

For example, in the Prevention of Significant Deterioration (PSD) program, EPA should clarify 

responsibilities and procedures to improve coordination and consultation among state 

agencies, EPA, and federal land managers, as well as develop guidelines and tools for the 

program in consultation with states. 

State CAA programs require financial and technical support from EPA and Congress. EPA must 

also have the resources to perform the research necessary to develop tools, templates, and 

guidance for states to implement effective and efficient air programs. 

EPA should consult with states prior to any decision on a potential rule or guidance and 

throughout the drafting process. EPA should also provide states timely implementation 

guidance when new and revised regulations are published. 

States require certainty and consistency to implement their CAA programs. EPA should 

maintain the deadline for the New Source Performance Standard (NSPS) for wood stoves and its 

regulations addressing mobile sources. States are depending on these reductions to comply 

with their State Implementation Programs (SIPs). 

Under current rules and guidance, states must monitor National Ambient Air Quality Standards 

(NAAQS) throughout the 20-year maintenance period, even when there is no threat of an 

exceedance. States should be allowed to reduce monitoring in maintenance areas that 

demonstrate permanent air quality below the NAAQS, which will free resources to address 

pollutants that remain a concern. 

Ozone 

Uncontrollable events and conditions such as wildfire, lightning, biogenic emissions, 

stratospheric ozone intrusion, and transported ozone from international and interstate sources 

result in elevated levels of background ozone. Western Governors have significant concerns 

about the lack of CAA tools available to account for ozone exceedances resulting from factors 

outside state control. 

The West needs additional and ongoing research on background, interstate and international 

ozone. This research should be transparent, comprehensive and coordinated with state air 

quality agencies and regional organizations. With this new information, EPA should reconsider 

the one percent threshold for significant contribution for interstate ozone transport obligations. 

Exceptional Events 

Exceptional event demonstrations are resource-intensive, costly and place a significant burden 

on strained state resources, especially when EPA does not review these state submissions in a 

timely manner. EPA should streamline the process for exceptional event demonstrations, 
296 


30463.263

William Wehrum 

February 12, 2018 

Page 3 

provide additional technical tools for states, and allocate resources to review state 

demonstrations. 

Western Governors believe the states and EPA would benefit from the following approaches to 

exceptional events demonstrations: (1) aggregation of multiple factors contributing to air 

quality to prove a single exceptional event exceedance demonstration; (2) regional exceptional 

event demonstrations; and (3) reference to previously submitted and approved exceptional 

events demonstrations for repeated event types. 

EPA should: create an online submission system for exceptional event demonstrations; develop 

a database with information on air quality impacts in the West (with special emphasis on 

wildfires); and provide a clearinghouse with tools that states can use for exceptional events 

demonstrations. 

Regional Haze 

Good visibility in the 118 western Regional Haze Program Class 1 Areas, which include many of 

the crown jewels of the West's national parks and wilderness areas, impacts western states' 

economies. lt is important to address mobile and international emissions sources beyond 

states' control in the context of western states' regional haze planning processes. 

The profound impacts of fire and smoke on the visibility at Class I areas in the West should be 

recognized in the Regional Haze Guidance and Rule. 

EPA provided Draft Regional Haze Guidance for the second implementation period of the Rule 

in July 2016, but has not finalized this guidance. States are beginning work on their SIPs for the 

second implementation period. Final Regional Haze Guidance is necessary to reduce 

uncertainty for states as they formulate their SIPs. 

Given the importance of improved visibility in the West, EPA should provide funding and 

resources to states throughout the planning and implementation process. 

Wildfire and Prescribed Fire 

More frequent and intense wildfires are steadily reducing the West's gains in air quality 

improvement. Smoke from wildfires can cause air quality to exceed the NAAQS for particulate 

matter and ozone, impacting public health, safety and transportation. Prescribed fire, which is 

managed according to state SIPs and smoke management programs, can reduce these impacts, 

but is currently underutilized. 

Western Governors support the use of prescribed fire to reduce the air quality impacts from 

uncharacteristic wildfire in the West. Federal and state land managers should have the ability 

to use prescribed fires when weather and site conditions are appropriate and air quality 

impacts are minimized. 

Prescribed fire practices should include smoke management planning coordinated among state 

land managers, state air agencies, state health departments, EPA, other federal agencies, and 
297 


30463.264

William Wehrum 

February 12, 2018 

Page 4 

federal land managers. State or regional prescribed fire councils can help facilitate this 

coordination. 

Western Governors call on EPA and federal land managers to improve existing tools and create 

additional tools for states to encourage prescribed fire. These should include an exceptional 

events guidance for prescribed fire, and tools to address the air quality impacts from wildfire in 

the West. 

We ask for your leadership in implementing the above recommendations at OAR. Please contact us 

with any questions regarding these or any other issues. We look forward to working with you to 

improve air quality policy and regulation in the West. 

Respectfully, 

~~~~ 7 

Dennis Daugaard 

Governor of South Oak 

Chair, WGA 

~ Governor 

Davidlge 

of Hawan 

a+ 

Vice Chair, WGA 
298 


30463.265

WESTERN 

GOVERNORS' 

ASSOCIATION 

A. PREAMBLE 

Western Governors' Association 

Policy Resolution 2017-01 

Building a Stronger State-Federal Relationship 

The Governors of the West are proud of their unique role in governing and serving the citizens 

of this great nation. They recognize that the position they occupy- the chief elected official of a 

sovereign state- imposes upon them enormous responsibility and confers upon them 

tremendous opportunity. Moreover, the faithful discharge of their obligations is central to the 

success of the Great American Experiment. 

It was, after all, the states that confederated to form a more perfect union by creating a national 

government of limited and defined powers. The grant of specific responsibilities for irreducibly 

common interests- such as national defense and interstate commerce- was brilliantly designed 

to make the whole stronger than the sum of its parts. 

The genius of American democracy is predicated on the separation of powers among branches 

of government (viz. the legislative, executive and judiciary) and the division of power between 

the federal and state governments (federalism). Under the American version of federalism, the 

powers of the federal government are narrow, enumerated and defined. The powers of the 

states, on the other hand, are vast and indefinite. States are responsible for executing all powers 

of governance not specifically bestowed to the federal government by the U.S. Constitution. 

This principle is memorialized in the Tenth Amendment, which states in its entirety, "The 

powers not delegated to the United States by the Constitution, nor prohibited by it to the States, 

are reserved to the States respectively, or to the people." 

This reservation of power to the states respects the differences between regions and peoples. It 

recognizes a right to self-determination at a local level. It rejects the notion that one size fits all, 

and it provides for a rich tapestry of local cultures, economies and environments. 

Because of the Constitutional recognition of state sovereignty, the states have been 

appropriately regarded as laboratories of democracy. States regularly engage in a kind of 

cooperative competition in the marketplace of ideas. Western Governors are leaders in 

innovative governance who employ their influence and executive authority to promote 

initiatives for improvement of their states' economies, environments and quality of life. 

Western Governors' Association Page 1 of10 Policy Resolution 2017-01 
299 


30463.266

Despite the foregoing, the balance of power has, over the years, shifted toward the federal 

government and away from the states. The growth in the size, cost and scope of the federal 

government attests to this new reality. Increasingly prescriptive regulations infringe on state 

authority, tie the hands of states and local governments, dampen innovation and impair on-theground problem-solving. Failures of the federal government to consult with states reflect a 

lesser appreciation for local knowledge, preferences and competencies. 

The inauguration of a new Administration presents a historic opportunity to realign the statefederal relationship. Western Governors are excited to work in true partnership with the 

federal government. By operating as authentic collaborators on the development and execution 

of policy, the states and federal government can demonstrably improve their service to the 

public. Western Governors are optimistic that the new Administration will be eager to unleash 

the power and creativity of states for the common advantage of our country. By working 

cooperatively with the states, the Administration can create a legacy of renewed federalism, 

resulting in a nation that is stronger, more resilient and more united. Such an outcome will 

redound to the credit of the Administration and inure to the benefit of the American people. 

B. BACKGROUND 

1. The relationship between state government authority and federal government authority 

is complex and multi-dimensional. There are various contexts in which the authorities 

of these respective levels of U.S. government manifest and intersect. For example: 

a) Exclusive Federal Authority- There are powers that are specifically enumerated 

by the U.S. Constitution as exclusively within the purview of the federal 

government.' 

b) State Primacy States derive independent rights and responsibilities under the 

U.S. Constitution. All powers not specifically delegated to the federal 

government are reserved for the states; in this instance, the legal authority of 

states overrides that of that federal government. 2 

1 The structure of the government established under the U.S. Constitution is premised upon a system of 

checks and balances: Article VI (Supremacy Clause); Article I, Section 8 (Congressional); Article II, Section 

1 (Executive Branch); Article lll, Section 2 Gudicial Branch). State law can be preempted two ways. If 

Congress evidences an intent to fully occupy a given "field," then state law falling within the field is 

preempted. If Congress has not fully displaced state regulation over the matter, then state law is 

preempted to the extent it actually conflicts with federal law. 

Amendment 10 of the U.S. Constitution: ·'The powers not delegated to the United States by the 

Constitution, nor prohibited by il to the States, are reserved tot he States, respectively, or to the people." 

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Governors have responsibilities for the condition of land, air, forest, wildlife and 

water resources, as well as energy and minerals development, within their state's 

borders. 

c) Shared State-Federal Authority- In some cases, state and/or federal authority 

can apply, given a particular fact pattem3 Federal preemption of state law is a 

concern under this scenario. According to the Council on State Governments, the 

federal government enacted only 29 statutes that pre-empted state law before 

1900. Since 1900, however, there have been more than 500 instances of federal 

preemption of state law. 

d) State Authority "Delegated" from Federal Agencies by Federal Statute- The 

U.S. Congress has, by statute, provided for the delegation to states of authority 

over certain federal program responsibilities. Many statutory regimes federal 

environmental programs, for example- contemplate establishment of federal 

standards, with delegated authority (permissive) available to states that wish to 

implement those standards. 

According to the Environmental Council of the States (ECOS), states have chosen 

to accept responsibility for 96 percent of the primary federal environmental 

programs that are available for delegation to states. States currently execute the 

vast majority of natural resource regulatory tasks, including 96 percent of the 

enforcement and compliance actions and collection of more than 94 percent of 

the environmental quality data currently held by the U.S. Environmental 

Protection Agency (EPA). 

e) Other- Where the federal government has a statutory, historical or "moral" 

obligation to states. 4 

3 The federal government has authority to regulate federal property under Article IV of the Constitution. 

That authority, however, is limited. General regulatory authority (including regulation of wildlife and 

land use) is held by the states, unless Congress passes a specific law that conflicts with a state's exercise of 

authority. This is discussed in detail in U.S. Supreme Court case, Klevpe v. New Mexico. 4 These historic agreements include, but are not limited to: Payments in Lieu of Taxes; shared revenues 

authorized by the Secure Rural Schools Act; Oregon and California Railroad Revested Lands payments; 

shared mineral royalties at the historic level of 50% and renewable energy leasing revenues from 

development on U.S. Forest Service lands, Bureau of Land Management lands and waters off the coasts of 

the western states; Abandoned Mine Lands grants to states consistent with 2006 Amendments to the 

Surface Mining Control and Reclamation Act; legally binding agreements and timetables with states to 

clean up radioactive waste that was generated in connection with nuclear weapons production and that 

remains on lands managed by the Department of Energy in the West. 

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2. Over time, the strength of the federal-state partnership in resource management has 

diminished. Federal agencies are increasingly challenging state decisions, imposing 

additional federal regulation or oversight and requiring documentation that can be 

unnecessary and duplicative. In many cases, these federal actions encroach on state 

legal prerogatives, especially in natural resource management. In addition, these federal 

actions neglect state expertise and diminish the statutorily-defined role of states in 

exercising their authority to manage delegated environmental protection programs. 

3. The current fiscal environment exacerbates tensions between states and federal agencies. 

For example, states have a particular interest in improving the active management of 

federal forest lands. The so-called "fire borrowing" practice employed by the U.S. Forest 

Service and the Department of the Interior to fund wildfire suppression activities is 

negatively affecting restoration and wildfire mitigation work in western forests. 

Changes are needed, as the current funding situation has allowed severe wildfires to 

bum through crippling amounts of the very funds that should instead be used to 

prevent and reduce wildfire impacts, costs, and safety risks to firefighters and the 

public. This also has impacts on local fire protection districts, which often bear the brunt 

of costs associated with first response to wildfire, and state budgets that are also 

burdened by the costs of wildfire response. Fire borrowing represents an unacceptable 

set of outcomes for taxpayers and at-risk communities, and does not reflect responsible 

stewardship of federal land. In addition, states increasingly are required to expend their 

limited resources to operate regulatory programs over which they have less and less 

control. A 2015 report by the White House Office of Management and Budget on the 

costs of federal regulation and the impact of unfunded mandates notes that federal 

mandates cost states, cities and the general public between $57 and $85 billion every 

year. 

4. States are willing and prepared to more effectively partner with the federal government 

on the management of natural resources within their borders. 

5. The U.S. Advisory Commission on Intergovernmental Relations- established in 1959 

and dissolved in 1996- was the federal government's major platform for addressing 

broad intergovernmental issues beyond narrow considerations of individual programs 

and activities. 

6. The current Executive Order on Federalism (E.O. 13132) was issued by then-President 

William Clinton in 1999. That E.O. has not been revisited since and it may be time to 

consider a new E.O. 

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C. GOVERNORS' POLICY STATEMENT 

1. Review of the Federal-State-Local Relationship 

a) It is time for thoughtful federal-state-local government review of the federal 

Executive Order on Federalism to identify areas in the policy that can be clarified 

and improved to increase cooperation and efficiency. 

b) Governors support reestablishment of the U.S. Advisory Commission on 

Intergovernmental Relations. It is imperative that the President show his 

commitment to the Constitutional separation of powers by establishing a 

platform at the highest level to address federalism concerns. 

2. Avoiding Preemption of States 

a) In the absence of Constitutional delegation of authority to the federal 

government, state authority should be presumed sovereign. Accordingly, 

federal departments and agencies should, to the extent permitted by law, 

construe, in regulations and otherwise, a federal statute to preempt state law 

only when the statute contains an express preemption provision or there is some 

other firm evidence compelling the conclusion that Congress intended 

preemption of state law, consistent with established judicial precedent. 

b) When Congress, acting under authority granted to it by the Constitution, does 

preempt state environmental laws, federal legislation should: 

i. Accommodate state actions taken before its enactment; 

ii. Permit states that have developed stricter standards to continue to 

enforce them; 

iii. Permit states that have developed substantially similar standards to 

continue to adhere to them without change and, where applicable, 

without consideration to land ownership. 

3. Defining Meaningful State-Federal Consultation 

a) Each Executive department and agency should be required to have a clear and 

accountable process to provide each state- through its Governor as the top 

elected official of the state and other representatives of state and local 

governments as he or she may designate- with early, meaningful and substantive 

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input in the development of regulatory policies that have federalism 

implications. This includes the development, prioritization and implementation 

of federal environmental statutes, policies, rules, programs, reviews, budgets and 

strategic planning. 

b) Consistent with C(2) and C(3)(a), federal agencies should consult with states in a 

meaningful way, and on a timely basis. 

i. Predicate Involvement: Federal agencies should take into account state 

data and expertise in development and analysis of underlying science 

serving as the legal basis for federal regulatory action. States merit 

greater representation on all relevant committees and panels (such as the 

EPA Science Advisory Board and related issue panels) advising federal 

agencies on scientific, technological, social and economic issues that 

inform federal regulatory processes. 

ii. Pre-Publication I Federal Decision-making Stage: Federal agencies 

should engage in early (pre-rulemaking) consultation with Governors 

and state regulators. This should include substantive consultation with 

states during development of rules or decisions and a review by states of 

the proposal before a formal rulemaking is launched (i.e., before such 

proposals are sent to the White House Office of Management and 

Budget). 

iii. Post-Publication I Pre-Finalization Stage: As they receive additional 

information from state agencies and non-governmental entities, 

Governors and designated state officials should have the opportunity to 

engage with federal agencies on an ongoing basis to seek refinements to 

proposed federal regulatory actions prior to finalization. 

4. State Authority "Delegated" from Federal Agencies Pursuant to Federal Statute 

Where states are delegated authority by federal agencies pursuant to legislation: 

a) Federal agencies should treat states as co-regulators, taking into account state 

views, expertise and science in the development of any federal action impacting 

state authority. 

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b) Federal agencies should grant states the maximum administrative discretion 

possible. Any federal oversight of such state should not unnecessarily intrude on 

state and local discretion. Where states take proactive actions, those efforts 

should be recognized and credited in the federal regulatory process. 

c) When a state is meeting the minimum requirements of a delegated program, the 

role of a federal department or agency should be limited to the provision of 

funding, technical assistance and research support. States should be free to 

develop implementation and enforcement approaches within their respective 

jurisdictions without intervention by the federal government. 

d) New federal rules and regulations should, to the extent possible, be consistent 

with existing rules and regulations. The issuing agency should identify elements 

and requirements common to both the proposed and existing regulations and 

provide states an opportunity to develop plans addressing the requirements of 

both in a coordinated fashion. This will achieve economies of scale, saving both 

time and money. 

e) When a federal department or agency proposes to take adjudicatory actions that 

impact authority delegated to states, notice should be provided to affected 

Governors' offices, and co-regulating states should have the opportunity to 

participate in the proceedings. Where legally permissible, that right should 

extend to federal agencies' settlement negotiations impacting state 

environmental and natural resource management prerogatives. Where their 

roles and responsibilities are impacted, states should be meaningfully consulted 

during settlement negotiations, including negotiations aimed at avoiding, rather 

than resolving, litigation (such as negotiations following a notice of intent to sue 

under the Endangered Species Act, but prior to a formal complaint being filed to 

initiate legal action). 

f) States' expertise should be recognized by federal agencies and robustly 

represented on boards and in other mechanisms upon which agencies rely for 

development of science to support regulatory action. 

5. Other Opportunities for Positive Engagement by the Federal Government with 

Western States 

a) Federalism Reviews- Federal agencies are required by federal Executive Order 

13132 to consider and quantify consequences of federal actions on states. In 

practice, the current process falls short of its stated goals. Governors call on the 

President to revisit the executive order to, among other things: 

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i. Specifically involve Western Governors on issues (e.g., public lands, 

water and species issues) that disproportionately impact the West; 

ii. Work with Governors to develop specific criteria and consultation 

processes: 1) for the initiation of federalism assessments and 2) that guide 

the performance of every federal Department and agency federalism 

assessment; 

iii. Require federal Departments and agencies to meet the criteria developed 

under C(S)(a)(ii), rather than simply require the consideration of 

federalism implications; 

iv. Provide states, through Governors, an opportunity to comment on 

federalism assessments before any covered federal action is submitted to 

the Office of Management and Budget for approval. 

b) Federal and State Land-Use Planning- Governors possess primary decisionmaking authority for management of state resources. Accordingly, it is essential 

that they have an opportunity to review new, revised and amended federal land 

management plans for consistency with existing state plans. Governors and their 

staffs have specific knowledge and experience that can help federal agencies craft 

effective and beneficial plans. A substantive role in federal agencies' planning 

processes is vital for Western Governors: 

i. Federal landscape-level planning presents new issues for Governors to 

consider as they attempt to ensure consistency between state and federal 

requirements. Agencies should provide Governors sufficient time to 

ensure a full and complete state review. This is particularly true when 

agency plans affect multiple planning areas or resources; 

ii. Agencies should seek to align the review of multiple plans affecting the 

same resource. This is particularly true for threatened or endangered 

species that have vast western ranges; 

iii. When reviewing proposed federal land management plans for 

consistency with state plans, Governors should be afforded the discretion 

to determine which state plans are pertinent to the review, including 

state-endorsed land use plans such as State Wildlife Action Plans, 

conservation district plans, county plans and multi-state agreements; 

iv. Governors must retain a right to appeal any rejection of 

recommendations resulting from a Governor's consistency review. 

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c) Honoring Historic Agreements The federal government should honor its 

historic agreements with states and counties in the West to compensate them for 

state and local impacts associated with federal land use and nontaxable lands 

within their borders that are federally-owned. 

d) Responsible Federal Land Management- The federal government should be a 

responsible landowner and neighbor and should work diligently to improve the 

health of federally-owned lands in the West. Lack of funding and conflicting 

policies have resulted in large wildfires and the spread of invasive species from 

federally owned forests and grasslands, negatively impacting adjacent state and 

privately-owned lands, as well as state-managed natural resources (soils, air 

and water). 

e) Recognizing State Contributions to Federal Land Management- The U.S. 

Congress and appropriate federal departments and agencies should provide 

opportunities for expanded cooperation, particularly where states are working 

to help their federal partners to improve management of federal lands within 

their states' borders through the contribution of state expertise, manpower and 

financial resources. 

f) A voiding Unfunded Mandates -The U.S. Congress and federal departments 

and agencies should avoid the imposition of unfunded federal mandates on 

states. The federal government increasingly requires states to carry out policy 

initiatives without providing the funding necessary to pay for implementation. 

State governments cannot function as full partners if the federal government 

requires them to devote their limited resources to compliance with unfunded 

federal mandates. 

g) Other Considerations in Designing an Effective State-Federal Relationship 

Other important considerations in the design of a stronger state-federal 

relationship include: 

i. The U.S. Congress and federal departments and agencies should respect 

the authority of states to determine the allocation of administrative and 

financial responsibilities within states in accordance with state 

constitutions and statutes. Federal action should not encroach on this 

authority. 

ii. Federal assistance funds, including funds that will be passed through to 

local governments, should flow through states according to state laws 

and procedures. 

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iii. States should be given flexibility to transfer a limited amount of funds 

from one grant program to another, and to administer related grants in a 

coordinated manner. 

iv. Federal funds should provide maximum state flexibility without specific 

set-asides. 

v. States should be given broad flexibility in establishing federallymandated advisory groups, including the ability to combine advisory 

groups for related programs. 

vi. Governors should be given the authority to require coordination among 

state executive branch agencies, or between levels or units of government, 

as a condition of the allocation or pass-through of funds. 

vii. Federal government monitoring should be outcome-oriented. 

viii. Federal reporting requirements should be minimized. 

ix. The federal government should not dictate state or local government 

organization. 

D. GOVERNORS' MANAGEMENT DIRECTIVE 

1. The Governors direct the WGA staff, where appropriate, to work with Congressional 

committees of jurisdiction and the Executive Branch to achieve the objectives of this 

resolution. 

2. Furthermore, the Governors direct WGA staff to develop, as appropriate and timely, 

detailed annual work plans to advance the policy positions and goals contained in this 

resolution. Those work plans shall be presented to, and approved by, Western 

Governors prior to implementation. WGA staff shall keep the Governors informed, on a 

regular basis, of their progress in implementing approved annual work plans. 

Western Governors enact new policy resolutions and amend existing resolutions on a bi-annual basis. 

Please consult www. westqov.orq/oolicies for the most current copy of a resolution and a list of all 

current WGA policy resolutions. 

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4!24/2018 Barrasso Statement on EPA Advisory Committee Selection of Wyoming's Cara Keslar- Press Releases· U.S. Senate Committee on Env ... 

U.S. SENATE COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

(/public/index.cfm/home) 

PRESS RELEASES VPUBLIC/INDEX.CFM/PRESSRELEASES-REPUBLICAN) 

Barrasso Statement on EPA Advisory 

Committee Selection of Wyoming's Car a 

Keslar (/public/index.cfm/press-releasesrepublican?ID=A2DB577C-8260-4E98-94CC5105E3582D73) 

November 3, 2017 

WASHINGTON, D.C. -Today, U.S. Senator John Barrasso (R-WY), chairman of the Senate 

Committee on Environment and Public Works (EPW), released the following statement on 

Environmental Protection Agency (EPA) Administrator Scott Pruitt's intention to appoint 

Wyoming's Cara Keslar to serve on the EPA Board of Scientific Counselors Air, Climate, and 

Energy Subcommittee. Keslar currently serves as the monitoring section supervisor for the Air 

Quality Division of the Wyoming Department of Environmental Quality. 

"Car a Keslar is an outstanding addition to the Environmental Protection Agency's advisory board," 

said Barrasso. "She brings years of experience serving the people of Wyoming. Her expertise 

and perspective will ensure that Wyoming and other Western states are part of the EPA's decision 

making process." 

Earlier this week, EPA Administrator Scott Pruitt issued a~ 

(b.llps://www.e~gQY[public/index,cfm/press-releases-republjcan?ID=F978CEAD-AOCB4383-8AA2-EBD736D1 D4B9) to strengthen advisory committee member independence, increase 

state and local government participation, and enhance geographic diversity. Key advisory 

committees at EPA include the Science Advisory Board, the Clean Air Scientific Advisory 

Committee, and the Board of Scientific Counselors. 

~ground Information: 

On July 27, 2017, Senator Barrasso sent a letter 

(https·//www egw.senate.gQYLpublic/index.cfm/press-releases-republican71D=3461 D7DC-5004· 

4000-8006-AC366131 02BO) to Pruitt regarding needed reforms to the Clean Air Scientific Advisory 

Committee (CASAC). In the letter, Barrasso called on Pruitt to "revisit past CASAC practices to 

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4/24/2018 Barrasso Statement on EPA Advisory Committee Selection of Vllyoming's Cara Keslar~ Press Releases~ U.S. Senate Committee on Env ... 

make them compliant with the statute." CASAC is supposed to provide independent counsel to 

the administrator on issues specifically listed in the Clean Air Act related to the federal National 

Ambient Air Quality Standards (NAAQS). 

### 

Permalink: https://www.epw.senate.gov/public/index.cfm/2017/11/barrasso-statement-onepa-advisory-committee-selection-of-wyoming-s-cara-keslar 

(https://www.epw.senate.gov/public/index.cfm/2017/11/barrasso-statement-on-epaadvisory-committee-selection-of-wyoming-s-cara-keslar) 

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4/24/201B Presidential Memorandum for the Administrator of the Environmental Protection Agency 

PRESIDENTIAL MEMORANDA 

Presidential Memorandum for the Administrator of 

the Environmental Protection Agency 

- LAND & AGRICULTURE 

Issued on: April 12,2018 

* * * 

Under the Clean Air Act (CM), Public Law 88-206, the Environmental Protection Agency (EPA) 

establishes National Ambient Air Quality Standards (NMQS) for certain common air pollutants, 

often referred to as "criteria pollutants," which it must review every 5 years. Over the past four 

decades, EPA has revised these standards a number of times to increase their stringency, including 

revisions to the standards for ozone, particulate matter, and four other criteria pollutants. Since 

1970, emissions of criteria pollutants have declined dramatically and air quality has improved 

significantly. At the same time, each new revision of the NAAQS triggers numerous new planning, 

permitting, and other requirements for affected States, localities, and regulated entities. In 

addition, each new revision can affect the planning for and availability of Federal funding for 

certain new transportation projects. 

Under the CM, States with areas that do not meet revised NAAQS must submit for approval to the 

Administrator of the EPA (Administrator) State Implementation Plans (SIPs) showing how they will 

comply with the revised standards. States that fail to submit a SIP or that submit an inadequate SIP 

risk the imposition of a Federal Implementation Plan (FIP) that establishes a path to compliance. In 

addition, manufacturers and other applicants seeking preconstruction permits for new 

construction generally must demonstrate compliance with the new standards as soon as they go 

into effect. As the NMQS have become more stringent, obtaining the air permits needed to 

construct new manufacturing and industrial facilities or to expand or modernize existing facilities 

has become increasingly difficult. In some areas, revised NMQS are approaching what are 

considered to be "background levels" of pollution (i.e., levels associated with natural sources or 

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4/24/2018 Presidential Memorandum for the Administrator of the Environmental Protection Agency 

emissions originating outside of the United States), leading to significant practical challenges 

for constructing or expanding manufacturing and industrial facilities. Those challenges range from 

difficulties in demonstrating compliance to costs and uncertainty associated with permitting delays 

and emissions-control requirements. 

Under the CAA, EPA has also established a Regional Haze Program, which requires States to submit 

for the Administrator's approval plans that cover 10-year implementation periods and 

to demonstrate "reasonable progress" toward improving and maintaining visibility in certain 

national parks and wilderness areas. In recent years, States have spent significant time and 

resources developing Regional Haze Program SIPs. EPA, however, has rejected several of them, in 

whole or in part, and issued FIPs in their place, which often impose more costly and burdensome 

measures. 

Given the national importance of successful and efficient implementation of air quality standards 

to promote public health, welfare, and economic growth, this memorandum directs the 

Administrator to take specific actions to ensure efficient and cost-effective implementation of the 

NAAQS program, including with regard to permitting decisions for new and expanded facilities, and 

with respect to the Regional Haze Program. These actions are intended to ensure that EPA carries 

out its core missions of protecting the environment and improving air quality in accord with 

statutory requirements, while reducing unnecessary impediments to new manufacturing and 

business expansion essential for a growing economy. 

Accordingly, by the authority vested in me as President by the Constitution and the laws of the 

United States of America, it is hereby directed as follows: 

Section 1. Timely Processing of State ImP-lementation Plans. The Administrator shall, as 

practicable and consistent with law, endeavor in all cases to take final action on SIPs within 18 

months of the date of the submission of a SIP. This goal applies to all SIPs and SIP revisions 

submitted pursuant to section 110 of the CAA (42 U.S.C. 7410). The Administrator shall consider the 

expansion of existing performance goals related to the timely processing of SIPs starting with the 

Fiscal Year (FY) 2019 performance plan. 

Sec.z. CooP-erative Eng0gement with States to Review Region01 Haze Plans. The Administrator 

shall undertake a process to review all full or partial FIPs issued under the 2007 planning period of 

the Regional Haze Program and to develop options, at the request of affected States, consistent 

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4/2412018 Presidential Memorandum for the Administrator of the Environmental Protection Agency 

with law, to replace FIPs with approvable SIPs. The Administrator shall consider the expansion of 

existing performance goals related to the cooperative engagement with States in EPA's review of 

Regional Haze Plans starting with the FY 2019 performance plan. 

Sec.}. Timely Processing of Preconstructjon Permit AP-~· The Administrator shall 

endeavor to take final action on applications for preconstruction permits, as appropriate and 

consistent with law, within 1 year of the date of receiving a complete application. This 1-year goal 

applies to all completed applications for preconstruction permits for which EPA is the direct 

permitting authority under the CAA. The Administrator shall also seek to ensure that 

determinations relating to the completeness of an application are not unduly delayed. To the 

extent that a State is the direct permitting authority, EPA shall endeavor to provide prompt 

technical support, reviews, and determinations, as necessary and consistent with applicable law, in 

order to assist States in the timely issuance of preconstruction permits. The Administrator shall, 

starting with the FY 2019 performance plan, develop performance goals related to the timely 

processing of preconstruction permit applications. 

~. :1. Demonstrations or Petitions Submitted Pursuant to Sections 319 and 1798 of the CAA 

Relating to Emissions Beyond the Control of State and Local Air Agencies. The Administrator shall 

take the following actions with regard to demonstrations or petitions submitted pursuant to 

sections 319 and 1798 ofthe CAA (42 U.S.C. 7619, 7509a}, in order to provide relief to State and local 

air agencies addressing emissions that are beyond their control: 

(a} Timely~g. With respect to all exceptional event demonstrations submitted pursuant to 

section 319 of the CAA (42 U.S.C. 7619}, and all demonstrations or petitions relating to international 

emissions submitted pursuant to section 1798 of the CAA (42 U.S.C. 7509a}, the Administrator shall 

endeavor to take final action within 120 days of a complete submission, as appropriate and 

consistent with law. The Administrator shall also endeavor to use available monitoring data and 

modeling tools to assist States in identifying potential exceptional events and international 

emissions that may affect concentrations of criteria pollutants. The Administrator shall, starting 

with the FY 2019 performance plan, develop performance goals related to the timely processing of 

demonstrations or petitions. 

(b) Policies Relating to International Emissions. The Administrator shall ensure that EPA continues 

to take into consideration a State's ability to meet and attain NAAQS that may be affected by 

international transport of criteria pollutants. With regard to all demonstrations or petitions 

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4/24/2018 Presidential Memorandum for the Administrator of the Environmental Protection Agency 

submitted pursuant to section 1798 of the CM, the Administrator shall also seek to ensure, 

including through rulemakings or guidance and as appropriate and consistent with law, that EPA 

does not limit its consideration of demonstrations or petitions to those submitted by States located 

on the borders ofthe United States with Mexico or Canada, but rather considers section 1798 

demonstrations or petitions submitted by any State, including but not limited to those located in 

the Western United States. Additionally, with respect to section 1798 demonstrations or petitions, 

the Administrator shall ensure that EPA does not limit its consideration to emissions emanating 

from Mexico or Canada, but rather considers, where appropriate, emissions that may emanate from 

any location outside the United States, including emissions from Asia. 

(c) ~g Assessment. In implementing section 1798 of the CM (42 U.S.C. 7509a), section 319 

of the CAA (42 U.S.C. 7619), and section 182(h) ofthe CM (42 U.S.C. 7511a(h)), the Administrator 

shall ensure that EPA continues to assess background concentrations and sources of pollution 

outside of the control of State and local air agencies that may affect implementation or application 

of these provisions. Such assessment may include current and future trends in pollution from 

foreign sources; regional trends in exceptional events, including wildfires, stratospheric ozone 

intrusions, and volcanic seismic activities; and other events, as appropriate and consistent with 

law. 

~. ,2. M2.!:!.il;Q,dng and Modeling Data. The Administrator shall take the following actions to ensure 

that monitoring and modeling data is used appropriately in designations, permitting decisions, and 

demonstrations: 

(a) Designations. Given the significant planning, permitting, and other requirements for affected 

States, localities, and regulated entities associated with nonattainment designations, the 

Administrator's goal for future designations should be, to the extent feasible and permitted by law, 

to rely on data from EPA-approved air quality monitors for such designations. 

(b) Permitting Decisions and Demonstrations. 

(i) Where modeling is necessary for permitting decisions, for State plans, orfor exceptional 

event or international emissions demonstrations, the Administrator shall seek to ensure that 

EPA's applicable modeling tools are sufficiently accurate for their intended application; and 

that the relevant State or local air agency, or permit applicant as applicable, is consulted 

regarding whether the use of modeling projections in lieu of monitored data is appropriate. 

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4/24/2018 Presidential Memorandum for the Administrator of the Environmental Protection Agency 

The Administrator should also seek to streamline EPA's processes for considering and 

approving inputs to models and updates to modeling techniques, including updates to 

account for site-specific conditions. Where EPA-approved models are not representative of 

site conditions or planned activities, the Administrator shall seek, as appropriate and 

consistent with law, to streamline the process for approving alternative models and to provide 

for other methods that promote innovative State approaches. 

(ii) The Administrator shall, consistent with law, continue to take actions, such as setting 

significant impact levels and related values, that enable EPA to clearly identify the types or 

classes of permitting and related decisions that do not require modeling or that can rely on 

streamlined modeling approaches. This requirement is especially important in areas for which 

EPA concludes that permits need to demonstrate compliance with NAAQS that have yet to be 

fully implemented. In developing significant impact levels, EPA should, as appropriate and 

consistent with law, allow for natural variability in meteorological conditions and industrial 

processes. 

Sec. 2. Offsets. To the extent consistent with law and air quality improvement, the Administrator 

shall provide flexibility to States with regard to identifying and achieving offsets, including by 

allowing intrastate and regional inter-precursor trading. These efforts should include development 

and implementation of flexible offset policies in rural areas where few facilities exist to generate 

offsets, in order to promote their economic expansion. The Administrator shall examine steps to 

help regions and States benefit from flexibilities available in the permitting process for new 

facilities and projects. 

~-1. Future N"""QS Reviews. The Administrator shall evaluate whether EPA is complying fully 

with the requirements of section 109(d)(2)(C) of the CAA (42 U.S.C. 7409(d)(2)(C)) relating to the 

scope and characterization of advice provided by its Clean Air Act Scientific Advisory Committee, 

including requirements that the Committee advise the Administrator regarding background 

concentrations and adverse public health or other effects that may result from implementation of 

revised air quality standards. In addition, the Administrator shall examine the current NAAQS 

review process and develop criteria to ensure transparency in the evaluation, assessment, and 

characterization of scientific evidence in such reviews. The Administrator shall also develop clear 

guidance for differentiating the role of science and policy considerations in establishing NAAQS. 

https:/!www.whitehouse.gov/presidential-aclions/presidential-memorandum-administrator-environmental·protection-agency/ 5/7 
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4/24!2018 Presidential Memorandum for the Administrator of the Environmental Protection Agency 

Sec. jl. Timel)llssuance of lmRiementing.Bggulations and Guidance. When issuing any final rule 

establishing or revising NAAQS, the Administrator shall, where appropriate and consistent with law, 

concurrently issue regulations and guidance necessary for implementing the new or revised 

standards. The regulations and guidance shall specify the information that is relevant to the 

submission and consideration of SIPs and preconstruction permit applications. 

Sec.;!. Review of Rules, Guidance, Memoranda, and Procedures Relating to State lmRiementation 

Plans and Permitting. The Administrator shall evaluate EPA's existing rules, guidance, memoranda, 

and other public documents relating to the implementation of NAAQS, including documents that 

relate to the submission and consideration of preconstruction permit applications. The 

Administrator shall, consistent with law, determine whether any such documents should be revised 

or rescinded to ensure more timely permitting decisions under the NAAQS. Any resulting revisions 

or rescissions should seek, among other things, to provide States with additional implementation 

flexibility. The Administrator should also evaluate the adequacy of existing internal review 

procedures to determine whether they can be improved to ensure prompt evaluation and timely 

action on new and pending SIPs and permit applications. 

Sec.lQ. General Provisions. (a) Nothing in this memorandum shall be construed to impair or 

otherwise affect: 

(i) the authority granted by law to an executive department or agency, or the head thereof; or 

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, 

administrative, or legislative proposals. 

(b) This memorandum shall be implemented consistent with applicable law and subject to the 

availability of appropriations. 

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or 

procedural, enforceable at law or in equity by any party against the United States, its departments, 

agencies, or entiti12s, its officers, employees, or agents, or any other person, 

(d) You are hereby authorized and directed to publish this memorandum in the Federal Register. 

DONALD J. TRUMP 

hltps://www.whitehouse,gov/presidential·actlons!presidential·memorandum·administrator-environmental·protection·agency/ 617 
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A Report by the Association of Air Pollution Control Agencies 1 

July 2017 

SUMMARY 

Following the issuance and publication of Executive Order (EO) 13777 on Enforcing the Regulatory Reform Agenda, the U.S. Environmental 

Protection Agency (EPA) established a Regulatory Reform Task Force to oversee the evaluation of existing regulations to make recommendations 

about potential repeal, replacement, or modification. Concurrent with outreach efforts,2 U.S. EPA accepted public comments on regulations that may 

be appropriate for repeal, replacement, or modification from April11 to May 15, 2017. As of July 18, 2017, the docket accompanying this request for 

comment included more ttl an 467,000 public comments received, with just over 63,000 available.~ 

In order to help navigate these comments and assess intergovernmental priorities for regulatory reform, this report highlights individual Clean Air 

Act regulations and themes discussed in state environmental agency comments as part of this comment process. In particular, Clean Air Act 

regulations and themes discussed by at !east tl"lree state environmental agencies are included, accompanied by links to illustrative comments and 

excerpts from state and local agencies and associations. The report is designed to help illustrate key priorities, but it does not contain details on 

individual comments including whether commenters specified whether regulations are appropriate to repeal, replace, modify, or maintain. Inclusion 

of regulations or concepts in this report does not imply endorsement from AAPCA or its member agencies. 

The regulations identified in this report may also be relevant to EO 13783 on Promoting Energy Independence and Economic Growth, 4 EO 13771 

on Reducing Regulation and Controlling Regulatory Costs5 as well as EO 13563 on Improving Regulation and Regulatory Review. 6 For example, 

1 AAPCA 1s a national, non-profit, consensus-dnven organization focused on assisting state and local air quamy agenc1es and personnel with implementation and 

techmcal1ssues assoaated w1th the federal Clean Air Act. AAPCA represents more than 40 state and local air agencies, and senior officials from 20 state 

environmental agencies currently s1t on the AAPCA Board of Directors. MPCAis housed in Lexington, Kentucky as an affiliate of The Council of State 

Governments. You can find more Information about AAPCA at http:IIW'Nw c!eanairact.orq. In addition, more information on AAPCA agencies can be found in the 

~eh~;~~~,:~:: ~~:r~:S~~e;~:;~~~~~~~~~~~r~f~r~~: Proftles and Success Stones in Air Pollutton Control 

: 

5 ~i~O! t=.~~~!~~~~~~~~~~~~;r~~-;:~~~i~~3~~~~~~;~ential-executive-order-oromotlng-eneroy-lndependence-and·economi-1 82 FR 9339 {2/3/2017) 6 ]6 FR 3821 (1/2112011) 
317 


30463.284

the May 8 memorandum from the Office of lnfonnation and Regulatory Affairs to Regulatory Reform Officers and Regulatory Policy Officers7 

encouraged agencies to coordinate compliance with Section 2 of EO 13783 with EO 13777 ahead of submitting a draft final report by July 26, 2017. 

Additionally, comments related to implementation of National Ambient Air Quallty Standards (NAAOS) and ground-level ozone may help inform U.S. 

EPA's Ozone Cooperative Compliance Task Force.5 

During the comment period, 24 state environmental agencies provided comments to U.S. EPA related to Clean Air Act or cross-media regulations 

(states shown in blue Jn map at right). 9 in addition, a number of state Attorneys General, 10 local air agencies and governments, 11 non-environmental 

state agencies, and intergovernmental associations and advisory committees 12 also 

provided feedback to U.S. EPA. 

In no particular order. these air quality regulations and themes include; 

"Once In, Always In" Policy for Major Source Maximum Available Control 

Technology Standards (pg. 3) 

Treatment of Data Influenced by Exceptional Events (pg, 4) 

Emission Guidelines and Compliance Times for Municipal Solid Waste LandfH!s 

(pg. 4-5) 

Standards for Stationary Compression Ignition Internal Combustion Engines, 

Stationary Spark Ignition Internal Combustion Engines, and Reciprocating fntemaf 

Combustion Engines (pg, 5) 

Startup, Shutdown, and Malfunction State Implementation Plan Call (pg. 6) 

Title V Permitting Requirements for Air Curtain Incinerators/Destructors (pg. 7) 

Regional Haze (pg. 7- 8) 

Nitrogen Oxides State Implementation Plan Cafl (NO, SIP Cafl) (pg. B) 

Interstate Ozone Transport (pg. 9) 

7 Dom1nic Manc1ni, Office of Information and Regulatory Affairs, "Guidance for Section 2 of Executive Order 13783 T1Ued 'Promoting Energy Independence and 

Economic Growth'," May 8, 2017 (Memorandum). 8 Task Force 1dentified in June 6 letters to Governors on extendtng the deadline for promulgating imtJal area designations for the 2015 ozone NAAQS by one year 

~ AAPCA has compiled all state and local environmental comments b.~ 1

° For example, comments from the Texas Attorney General and the Attorneys General of West VifQima Alabana Arkansas l!ldiana LoUisla!la Michigan. 

Oklahoma and South Carolina contamed recommendations related to air quality Issues 11 For example, comments from the Harris County Pollution Control Services Department (TX), Maricopa County Air Quality Department {AZ), Fairbanks North 

Star Burough A1r Quality D1vis1on {AK), Clark County Department of A1r Quality (NV}, Bay Area A1r Quality Management District {CA), South Coast Air Quality 

Management District (CA}, and Cooke County {TX) contained recommendations related to air quality Issues. 12 For example, comments from the Assoc1atton of Atr Pollution Control Agencies, Enwonmental Councd of the States, Northeast States for Coordinated Aw Use 

Management, Nat1onal Steenng Committee Small Busmess Enwonmental AssiStance Prooram, tJatiOnal Asso'~l{ltion of Counties Nat1on~;.! League of C1t1es U.S 

Conference of Mayors and National Association of Regional Councils, National Assopation ot County and C1tv ~. U.S. EPA's Local Government 

Advisory Committee, Western Governors Association, National Tribal A1r Association, and Amencan AswcJat1on of State H1ghway and Transoortahon Off1c1als 

contamed recommendations related to atr quality issues 
318 


30463.285

Clean Power Plan and Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: 

E!ectn'c Generating Units (pg_ 10) 

Modeling Issues & Appendix W (pg. 10- 11) 

Implementation of the 2015 NAAQS for Ozone: Nonatfainment Area Classifications and State Implementation Plan Requirements (pg. 11) 

2015 National Ambient Air Quality Standards for Ground~Level Ozone (pg. 12) 

Cross-Media Electronic Reporling Rufe and Other Electronic Reporling Requirements (pg. 13- 14) 

Monitoring Requirements (pg. 14) 

Other Title V Permit Review/Petition issues (pg. 15) 

Guidance as De Facto Rule making (pg. 15) 

General National Ambient Air Quality Standards & State lmplementatfon Plan Process Improvements (pg. 16) 

1

'0nce In, Always In" Policy for Major Source Maximum Available Control Technology Standards (Seitz Memorandum) 13 

Illustrative state environmental agency comments: 

Arizona Department of Environmental Qualitv, Attachment (pg. 1) 

Connecticut Department of Energy and Environmental Protection, pg_ 2 

Georgia Environmental Protection D!v!sion, pg. 1 

Maine Department of Enwonmenta! Protection, pg. 1, 3- 5 

Mmnesota Po!tution Control Agency. pg. 6 

North Carolina Division of Air Quality, pg. 36 

Ohio Environmental Protection Agency, pg. 6-7 

South Dakota Department of Environment and Natural Resources, pg. 4 

Other relevant comments: Environmental Council of the States, pg. 2; Northeast States for Coordinated Air Use Management, pg. 2; National 

Steering Committee Small Business Environmental Assistance Program, pg. 4- 5; Association of Air Pollution Control Agencies, pg. 4 

13 Memorandum can be found here 
319 


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Treatment of Data Influenced by Exceptional Events14 

Illustrative state environmental agency comments: 

Arizona Department of Environmental Quality, Attachment (pg. 2) 

Arkansas Department of Environmental Quality, pg. 7- B 

North Carolina Division of Air Quality, pg. 19- 20 

Utah Division of Air Quality, pg. 3-4 

Wyoming Department of Environmental Quality, pg. 6-7 

Other relevant comments: Clark County Department of Air Quality (NV), pg. 3; American Association of State Highway and Transportation Officials, 

Attachment; Western Governors Association, pg. 13; Association of Air Pollution Control Agencies, pg. 3 

Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills15 

Illustrative state environmental agency comments: 

Arizona Department of Environmental Quality, Attachment (pg. 1) 

• Arkansas Department of Environmental Duality, pg. 6 

• Michigan Department of Environmental Quahty, pg, 5 

14 ru.,FR 58216. More mformation: https·ffwww.epa.gov/air-quality~anatysis/treatment·alr-qual\ty-data·inftuenced-exceptlonal-events. 

'

0 81 FR 59276 (08/26/16). More inforrnatton, including related rules, 1s available at. https 1/www eoa gov/statiorary-sources-alr-pol!ution/municipa!-soiid-wastelandfills new-source-performance-standards 
320 


30463.287

• South Carolina Department of Health and Environmental Control, pg. 2-3 

• Wyommg Department of Environmental Quality, pg. 5 

Other relevant comments: Attorneys General of VW AL AR IN LA MI. OK and SC, Exhibit A; Cooke County (TX), pg. 1; Association of Atr 

Pollution Control Agencies, pg. 3 

Standards for Stationary Compression l~nition Internal Combustion Engines (NSPS 1111), 16 Stationary Spark Ignition Internal 

Combustion Engines (NSPS JJJJ), 1 and Reciprocating Internal Combustion Engines (RICE NESHAPIGACT ZZZZ) 18 

lf!ustrative state environmental agency comments: 

Arkansas Department of Environmental Quality, pg. 9 

Georqta Environmental Protection Division, pg. 2 

Maine Department of Environmental Protection, pg. 7 

Michtgan Department of Enwonmental Quahty, pg. 6 

Nevada Division of Environmental Protection, pg. 2 

North Carohna Otvtsion of Air Quality, pg. 31 

Other relevant comments: Association of Air Pollution Control Agencies, pg. 5 

'

6 81 FR 44212 (7/7/2016). More information https·l/www epa.gov/statlonary-englnes/new-source-oerformance-standards-stattonary-compression-lqnlt!on-mternal0 17 73 FR 3568 (1/18/2008). More information· https:l/www epa gov/statlonary-er.gmes/new-source-pertormance-standards-stationary·spark-lqnitlon~lnterna!-

co~~~~~~~~~~-Emission Standards for Hazardous A1r Pollutants for Reciprocating Internal Cornbusbon Engines, New Source Performance standards for Stationary 

Internal CombustiOn Engines." 78 FR 6674 (01/30/2013). More information: https·/fwww.epa.gov/statmnary-engmes/natJOnal-emlssion-standards-hazardous-alr-

~ts-reciprocat!nQ-tntemal-O 
321 


30463.288

Startup, Shutdown, and Malfunction State Implementation Plan Call (SSM SIP Calll9 

!!lustratlve state environmental agency comments: 

Arizona Department of Environmental Quality, Attachment (pg. 1) 

Maine Department of Environmental Protection, pg. 11 - 12 

North Caro!lna Division of Air Quality, pg. 32 

South Dakota Department of Environment and Natural Resources, pg. 1 

W1sconsin Department of Natural Resources, pg. 7 

Other relevant comments: Attorneys General of 1/'N AL AR IN LA M! OK and SC (Exhibit A); Texas Attorney General {Attachment 2); 

Association of Air Pollution Control Agencies, pg. 3 

'

9 "State Implementation Plans: Response to Petition for Ru!emaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial 

Jnadequ<:~cy; <:~nd SIP C<:~!ls To Amend Prov1sions ApplYing to Excess Emissions During PeriOds of St<:~rtup, Shutdown and Malfunction: BO FR 33840 (06/1212015) 

More information· https:ttwww epa govlalr-gu3lity-1mplementatlon-plans/startup-shutdown-.rnelfunctlon-ssm-emlssions-industnal-facil!t!es 
322 


30463.289

Title V Permitting Requirements for Wood Burning Air Curtain lncinerators/Destructors20 

ll!ustrative state environmental agency comments: 

Arizona Department of Environmental Quality, Attachment {pg. 1) 

Georgia Environmental Protection Division. pg. 1-2 

• Kansas Department of Health and Environment, pg. 1 - 2 

• South Carolina Department of Health and Environmental Control, pg. 2- 3 

Other relevant comments: National Steering Committee Small Business Environmental Assistance Program, pg. 13- 14; Association of Air 

Pollution Control Agencies, pg. 4 

Regional Haze, including Protection of Visibility: Amendments to Requirements for State Plans21 and Federal Implementation Plans for 

Regional Haze22 

Illustrative state environmental agem;y comments: 

2

° Found 1n EPA's final rule "Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid 

Waste lnctnerat1on Units," 81 FR 40956 (6/23/2016). See also: lJ!!P.s.ltv.<v.rw epa.gov/tltle~v-operatlnq-permlts!aJr·curtaln-inCinerators-and-title-v-operatlng-permtts 2

' 82 FR 3078 (01/10/2017). More information on Regtonal Haze available at: https 1/WNW.epa gov/viSiblhty 22 For e)(ample, see EPA's Reg1onal Haze Federal !mplementatlnn Plan for Arkansas 
323 


30463.290

Alaska Department of Environmental Conservation, pg. 7- 8 

Arizona Department of Environmental Quallty, Attachment (pg. 2) 

Arkansas Department of Environmental Quality, pg. 2-6 

Minnesota Pollution Control Agency, pg. 6 

Nevada DIVision of Environmental Protection, pg. 2 

North Carolina DiVISIOn of Air Quality, pg. 24- 26 

South Dakota Department of Environment and Natural Resources, pg. 3 

Wyoming Department of Environmental Quality, pg. 4 5 

Other relevant comments: Texas Attorney General, Attachment 1 & 2; Attorneys General ofWV AL AR IN LA Ml OK and SC, Exhibit A; 

Association of Air Pollution Control Agenc1es, pg. 3 

Nitrogen Oxides State Implementation Plan Call (NOx SIP Calll3 

l!lustrative state environmental agency comments: 

North Carolina Division on Air Quality, pg. 10-11 

., .Qhlo Environmental Protection Agency, pg. 4- 5 

• South Carolina Department of Health and Enyironmenta! Control, pg. 1 -2 

Other relevant comments: Associatmn of Air Pollution Control Agencies, pg. 2 

23 63 FR 57356 (10/27/1998). More information available here. 
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30463.291

Interstate Ozone Transport, Including Transport Rules for 2008 and 2015 National Ambient Air Quality Standards for GroundLevel Ozone 

Illustrative state environmental agency comments: 

Colorado Air Pollution Control Division, pg. 2 

Connecticut Department of Energy and Environmental Protection, pg, 1 

Kansas Department of Health and Environment, pg. 1 

North Carolina Division of Air Quality, pg. 2 ~ 3, 18-19 

Ohio Environmental Protection Agency, pg. 1 - 2 

South Dakota Department of Environment and Natural Resources, pg. 3 

Utah Division of Air Quality, pg. 4 

Other relevant comments: Texas Attorney General, Attachment 2; Attorneys General of WV AL AR IN LA M! OK and SC, Exhibit A; Northeast 

States for Coordinated Air Use Management, pg. 2; Association of Air Pollution Control Agencies, pg. 1-3, 7-8. 
325 


30463.292

Clean Power Plan24 and Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed 

Stationary Sources: Electric Generating Units25 

tuustrative state environmental agency comments: 

Alaska Department of Environmental Conservation, pg, 1, 8 

California Air Resources Board, pg. 2 

Connecticut Department of Energy and Environmental Protection, pg. 1 

Indiana Department of Environmental Management, pg. 3 

Kansas Department of Health and Environment, pg. 1 

Pennsylvania Department of Environmental Protection, pg. 2 

South Dakota Department of Environment and Natural Resources, pg. 3 

Wyoming Department of Environmental Quality, pg. 7 

Other relevant comments: Texas Attorney General, Attachment 2; Attorneys General ofv.N AL AR IN LA Ml OK and SC, Exhibit A 

Modeling Issues & Appendix W 6 

Illustrative state environmental agency comments: 

• Nevada Division of Environmental Protection pg. 2 

24 80 FR 64662 (October 23, 2015) 

~ 80 FR 64510 (October 23, 2015) 25 82 FR 5182 (1/17/2017) 

10 
326 


30463.293

North Carolina Division of Air Quality, pg. 18-21 

Wisconsin Department of Natural Resources, pg. 3 

Wyoming Department of Environmental Quality, pg. 5-6 

Other relevant comments: American Association of State Highway and Transportation Officials, pg. 5-7 

Implementation of the 2015 NAAQS for Ozone: Nonattainment Area Classifications and State Implementation Plan 

Requirement!l7 

Illustrative state environmental agency comments: 

Arizona Department of Environmental Quality, Attachment, pg. 1 

Mame Department of Environmental Protection, pg. 11 

Nevada Division of Environmental Protection, pg. 1 

North Carolina DJVIsion of Air Quality, pg. 4 

Ohio Environmental Protection Agency, pg. 2- 3 

Other relevant comments: Clark County Department of Air Quality (NV), pg. 1 - 2; American Association of State Highway and Transportation 

Officials, Attachment; Western Governors Association, pg. 13; Attorneys General ofWV AL AR IN LA Ml OK and SC, Exhibit A 

27 81 FR 81276 

11 
327 


30463.294

2015 National Ambient Air Quality Standards for Ground-Level Ozone28 

Illustrative state environmental agency commsnts: 

Arizona Department of Environmental Quality, Attachment, pg. 1 

Maine Department of Environmental Protection, pg. 11 

Nevada Division of Environmental Protection, pg. 1 

North Carolina Division of Air Quality, pg. 4 

Oh1o Environmental Protection Agency, pg. 2- 3 

South Dakota Department of Environment and Natura! Resources, pg. 2- 3 

Wisconsin Department of Natural Resources, pg. 2- 3 

Other relevant comments: Clark County Department of Air Quality (NV), pg. 1 - 2; American Association of State Highway and Transportation 

Officials, Attachment; Western Governors Association, pg, 13; Attorneys General ofWV AL AR IN LA Ml OK and SC, Exhibit A; Texas Attorney 

Genera!, Attachment 2; National Association of Counties. National League of Cities U,S. Conference of Mayors and National Association of 

Regional Counc1ls; Association of Air Pollution Control Agencies, pg. 3 

~a 80 FR 65292 

12 
328 


30463.295

Cross-Media Electronic Reporting Rule (CROMERRf9 

l!!ustrative state environmental agency comments: 

• Maine Department of Environmental Protection, pg. 9- 10 

• Massachusetts Department of Environmental Protection, pg. 2 

• North Carolina Division of Air Quality, pg. 29-30 

Other relevant comments: South Coast Air Quality Management District, pg. 1 - 2; Association of Air Pollution Control Agencies, pg. 2 

Other Electronic Reporting Requirements (Including CEDRIICDX) 

Illustrative state environmental agency comments: 

• Maine Department of Environmental Protection, pg. 7-9 

29 70 FR 59848 (10/13/2005). More mformation: https //INVII'>'Ii epa.gov/cromerL 

13 
329 


30463.296

• Michigan Department of Environmental Quality, pg. 4 

• North Carolina DtvisJon of Air Quality, pg. 29- 30 

Other relevant comments: Association of Air Pollution Control Agenc1es, pg. 2 

Monitoring Requirements 

!!lustrative state environmental agency comments: 

Alaska Department of Environmental Conservation, pg. 6- 7 

Arizona Department of Environmental Quality, pg. 1 

Minnesota Pollution Contro!Agency, pg. 8 

North Carohna Divis!on of Air Quality, pg. 34 

Utah Division of Air Quality, pg. 4-5 

Wisconsin Department of Natural Resources, pg. 7 

Wyommg Department of Environmental Quality, pg. 6 

Other relevant comments: Fairbanks North Star Burough Air Quality Division (AK), pg. 2 4; Maricopa County Air Quality Department (AZ), pg. 1 -

2; Environmental Council of the States, pg. 3- 4; Association of Air Pollution Control Agencies, pg. 6 

14 
330 


30463.297

Other Title V Permit Review/Petition Issues 

Hlustrative state environmental agency comments: 

Georgia Environmental Protection Division, pg. 3 

Nebraska Department of Environmental Quality 

North Carohna DIVision of A1r Quality, pg. 33 

Oh1o Environmental ProtectJOn Agency, pg. 3 

South Dakota Department of Environment and Natural Resources, pg. 2 

Other relevant comments: Association of Air Pollution Control Agencies, pg. 4 

Guidance as De Facto Rulemaklng 

Illustrative state environmental agency comments: 

Mame Department of Environmental Protection, pg. 1 - 2 

North Carolina Div1sion of Air Quality, pg. 27-28 

• Oklahoma Department of Enwonmental Quality, pg. 11 

• Utah Division of Air Quahty, pg. 1 - 2 

Other relevant comments: Association of Air Pollution Control Agencies, pg. 4 

15 
331 


30463.298

General National Ambient Air Quality Standards & State Implementation Plan Process Improvements 

Illustrative state environmental agency comments: 

California Air Resources Board, pg. 2 

Kansas Department of Health and Environment, pg. 1 

Maine Department of Environmental Protection, pg. 10-13 

North Carolina Diviston of Air Quality, pg. 4- 6 

Ohio EnVIronmental Protection Agency, pg. 1 - 5 

W1sconsm Department gf Natural Resources, pg. 2- 3 

Other relevant comments: Attorneys Genera! ofVW AL AR IN LA Ml OK and SC, pg. 4- 5; Association of Air Pollution Control Agencies, pg 7 

-8 

16 
332 


30463.299

Targeted Transportation 

Conformity Reform 
333 


30463.300

Overview 

Transportation conformity and State Implementation Plan (SIP) schedules do not align with 

transportation project development and planning schedules. This mis-timing results in project 

delays that reduce the benefits of MAP-21 environmental streamlining in nonattainment and 

maintenance areas. Innovative financing (TIFIA and PPP) along with local and state bond 

packages help to accelerate projects, but transportation conformity tends to delay such 

acceleration. Also, unless a SIP requires transportation control measures (TCMs) and none 

are required for marginal areas, regional transportation conformity does not reduce 

emissions. It's an intensive paperwork exercise that wastes resources and delays projects. 

Targeted transportation conformity reform would reduce project delays. 

Overview-Texas 

Texas is the second most populated state with the second largest state gross domestic 

product. Since 2000, 6.1 million additional people call Texas home. This is the largest 

increase in state population in the nation - this increase is larger than individual state 

populations for 33 states. This population change coupled with lack of a long-term funding 

necessitated increased use of innovative financing. 

Over this same time period, Texas reduced peak ozone pollution by 24% (the national 

average was only 12%).1 Texas also has one of the most extensive air monitoring programs in 

the nation, measuring more organic compounds (like benzene) than any other state and 

providing more than 23 million data points per year.2 

Transportation Conformity Results in Project Delays 

Examples of transportation conformity related project delays in Dallas(> $50 million) and 

Houston(> $12 million) are provided in Attachment 3. Highway sanctions and transportation 

conformity jeopardize the ability to plan and ultimately deliver transportation projects on time 

resulting in infrastructure delays3. Such delays may: impact the safety of the traveling public, 

waste funds, and contribute to congestion (thereby increasing travel time and wasting fuel). 

Regardless of how these issues were considered in the 1990 Clean Air Act (CAA) 

amendments, 25 years later, transportation funding cannot keep up with maintenance and 

demand, making congestion much worse. So the efficient use of transportation funds is more 

critical now than ever before. 

TCEQ Air Quahty Successes at b.t:tP_;L /www.tceq.texas.gov Jairguality/airsuc~air"success-critena. 

TCEQ Air Quality Successes at .bitQ://www.tceq.texas.gov/airquallty/atrsucQ.e§_~fllf~§..I.!.QPess-toxtcs. 

For example, a $3.2 billion dollar to!l concessionary 'W$tffil. wa~~~~~~ '{jft\-Sj~'S.~'if9r~~dl-6g/:!"Sfh§roject Delays 

programming of those funds in the DFW area. 
334 


30463.301

Options for Reducing Transportation Emissions and Congestion 

Transportation emissions are reduced by one of the four main categories: 

Federal CAA Engine and Fuel Controls (tailpipe controls)-reduce tailpipe emissions by 

adding controls (e.g. catalytic converters), or using cleaner fuels and engines (e.g., 

reduced benzene in gas, hybrid, electric, or hydrogen engines). The CAA also requires 

vehicle inspection and maintenance programs in moderate and higher ozone 

nonattainment areas to ensure controls are properly working. 

Federal, state and local "cash for clunker" programs (removes high-emitters). 

• Traffic System Management (TSM or System Optimization)- improves the operational 

characteristics of the transportation network to achieve the greatest possible efficiency 

(e.g., traffic light timing, pre-staged wrecker service to clear accidents faster, or traveler 

information systems). 

Reduction in Vehicle Miles Traveled (VMT) or Travel Demand Management (TDM) -

reduces the rate of growth in VMT by trip reduction programs andjor high occupancy 

vehicle use (rideshare, van pool, carpool, telecommute), and mode shift (transit, bike, 

walk and local land use programs such as transit oriented development). 

TDM and TSM are measures that can be included in a SIP for transportation control 

measures. 

Congestion wastes fuel. Fuel wasted in the top 101 most congested areas in the U.S. was: 

1990 - 1.1 billion gallons and 

• 2011 - 2.2 billion gallons.4 

Improvements to urban congestion can be realized through three mechanismss: 

1. TSM or system optimization (discussed above). 

2. TOM or reduced VMT (discussed above). 

3. Increased system capacity- adding lanes on congested roadways or constructing 

new parallel roadways. 6 

The majority of emission reductions occur from federal tailpipe controls rather than through 

transportation conformity via transportation control measures (TCMs) and local land use 

measures. For example, a recent analysis by FHWA estimates federal tailpipe controls will 

reduce national on-road NOx by more than 40% (>8 %/year) from 2015 to 2020, while 

accounting for increased VMT (see Attachment 1). In addition, EPA's recent "Potential 

IT! 2012 Urban Mobility Report at http://moblhty.tamu.edu 'urns/ 

2030 Committee Texas Transportation Needs Report, 2009. 

During the economic downturn, several projects had to be removed from the H-GAC transportation plan for fiscal 

~Z~~;~~~~~~=~i~~: ;::~n~~~~ n~~s~o~~~i~:h~~ !'f:r~~~~~~~~~~t?~~~~~%~-15Project Delays 

sanctions). 
335 


30463.302

Changes in Emissions Due to Improvements in Travel Efficiency- Final Report, March 

2011, "7 suggests that tailpipe controls will continue to be crucial for reducing future vehicle 

emissions, This study suggests the "bundle" of: TOM+ land use changes+ transit fare 

reduction +transit service improvements + parking fees + mileage fees may reduce NOx by 

8.65% by the year 2050 (40 year reduction), On average, this equals a 0,2% reduction/year 

for NOx, 

The reductions historically achieved through conformity are miniscule compared to federal 

tailp'1pe controls, TxDOT informally polled four state DOTs (including information on the 

Washington D.C. area) and Texas Metropolitan Planning Organizations (MPOs), For all live 

states, transportation control measures (TCMs) were last needed for either the 1979 1-hour 

or the 1997 8-hour ozone NAAQS, and that they accounted for less than 1% (some less than 

1 ton) reduction.s Transportation control measures (TCMs) in the 2007 DFW SIP (lor the 

1997 ozone NAAQS) accounted lor approximately OA% NOxon-road reductions/year (on 

average)9 Transportation control measures (TCMs) in the 2002-2004 Houston-GalvestonBrazoria (HGB) SIPs (for the 1979 1-hour ozone NAAQS) accounted for< 0.1% of the total SIP 

NOx reductions and 0, 7% of the NOx transportation budget, with reductions occurring 

between 1994 through 2007° 0 (or an average yearly reduction of 0,05%), These 

transportation control measure (TCM) commitments (summarized below) cost hundreds of 

millions of dollars to only result in< 0,1% reduction in NOx emissions for the HGB area11: 

Signalization 

High Occupancy Vehicle lanes 

Van pool vehicles 

Park and ride lots 

Arterial Traffic Management System 

Computerized Traffic Management System 

Bicycle lanes 

Accident investigation sites 

52.2 center-lane mites 

18.2 center-lane miles 

225 vans 

15,098 spaces 

343,48 center-lane miles 

387.37 center-lane miles 

435.998 center-lane miles 

32 center-lane miles 

Attachments 1 and 2 are charts showing NOx emission reductions from 1970 - 2013 along 

with projections from 2015 to 2050 (including the > 10% average annual on-road reduction 

between 2015 -2020), Note the tremendous reductions in both on-road and non-road 

Report" and is available at 

8 TxDOT inqwry distnbuted on February 20. 2015. State DOT responses received frorr February 20,24, 2015. 

9 Texas S!P mformation 

10 

11 
336 


30463.303

transportation emissions. NOx is an ozone precursor emission, and ozone reductions in Texas 

and most of the U.S. require NOx reductions. 

EPA's Greenbook12 identifies 36 marginal 

nonattainment areas and 10 areas moderate to 

extreme nonattainment for the 2008 ozone NAAQS 

(> 75% are marginal and < 25% are moderate to 

extreme, respectively). The marginal nonattainment 

areas are not subject to attainment demonstration 

S!Ps.13 so no transportation control measures 

(TCMs) are required. For the remaining 10 areas, 

SIPs are due to EPA until July 2015. If needed, 

these areas could be polled to see if new 

transportation control measures (TCMs) were 

needed or if federal tailpipe controls were sufficient. 

Streamlining Option: When TCMs 

are not needed in the SIP 

because federal tailpipe controls 

are sufficient, then transportation 

conformity results in no additional 

emissions reductions (majority of 

areas). Areas could simply be 

"deemed to meet" transportation 

conformity requirements via 

implementation of federal tailpipe 

controls. 

For more than 75% and possibly up to 100% of the current 46 nonattainment areas (227 

counties), the transportation conformity process is an administrative paperwork burden 

simply documenting reductions from federal tailpipe controls. 

Regional Transportation Conformity Process 

For moderate to extreme ozone nonattainment areas, regional transportation conformity 

assesses if the current transportation plan is equal to or less than the SIP budget and that 

TCMS (if any) have been timely implemented. For areas without SIP budgets (marginal areas 

and areas awaiting a SIP), it assesses if emissions are less than a baseline scenario. The CAA 

requires regional transportation conformity once every four years. EPA's 2015 information 

collection request on conformity costs stated any conformity completed other than once 

every four years is "voluntary." However, the conformity rule(@ 40 CFR 93.104) requires 

regional conformity each time plans/TIPs are revised and within 2 years of the effective date 

of the following SIP triggers: EPA finds SIP budgets adequate; EPA approves a SIP with 

budgets; or EPA promulgates an implementation plan which establishes or revises a budget. 

In 2011, AASHTO and AMPO issued a joint letter disagreeing with EPA's assessment of what 

is "voluntary" and that EPA is greatly underestimating conformity human and financial 

resources associated with transportation conformity~ and the end result of th!s massive 

resource drain is almost always that federal tailpipe controls are working. 

One of the greatest challenges with regional transportation conformity is accurately 

predicting 20-30 years into the future because it requires the use of highly variable latest 

12 EPA Green book for nor1<:~ttamment mens at: JJtt.P..;U:J:'i!YY:L,_QQ_ii\,gQ~:QQ[f.Oaqps;greenbk/hnsum.htrn[ 

13 
337 


30463.304

planning assumptions that lack the level of precision needed 

for SIP budgets. Research studies document that a 

substantial degree of uncertainty exists in forecasting future 

population, land use, finances, and the multitude of issues 

that go into transportation plans and travel models14. 

Projecting exactly where people are going to live and work 

and what vehicle they will drive or mode choice they will use 

up to 20-30 years into the future is speculative at best Plans 

and travel models were intended to be a guide with sufficient 

elasticity to account for changes in planning assumptions and 

project refinements as details unfold throughout project 

development. Most changes to planning assumptions are 

Why are MPOsjOOTs held to 

more frequent review of latest 

planning/model assumptions 

than the state environmental 

agency is for the SIP? 

Why are DOTs/MPOs responsible 

for assessing federal tailpipe 

controls, when that's federal 

responsibility? 

beyond the state DOT/MPO control. Conformity requires plan and project specificity and 

accuracy contrary to their intended fluid nature. For example, the Beaumont 1997 ozone 

attainment-maintenance SIP anticipated vehicle purchases for a robust economy, but during 

the Great Recession less new vehicles were sold. Forth is reason, Beaumont experienced an 

almost 2 year conformity lapse while attaining both the 1997 and 2008 ozone NAAQS. 

During this time, advancement of needed infrastructure was on hold. Short term funding has 

also led to the unanticipated removal offuture projects because of reduced funding in 

financial forecasts. Long-term funding offers more financial stability for transportation plans. 

The hierarchical nature of transportation conformity enforces a strict rigidity. For instance a 

project must conform to a regionally conforming transportation plan, which was, in turn, 

found to conform to the SIP. If a SIP revision is triggered, this affects conformity down the 

chain. The last major EPA emission model change is a great example of this. It increased NOx 

emission estimates by 30-50%, so areas had to undergo a SIP revision to include the 

increased NOx emissions before proceeding with regional conformity. 

Larger metropolitan areas might be able to complete regional conformity semiannually to 

biennially, and smaller metropolitan areas less often (typically biennially in Texas), so 

conformity may delay projects by about 6-24 months. In order to obtain a project-level 

conformity determination as part of the NEPA decision, a project must be found to be 

consistent with the plan's regional conformity determination. A project change that makes it 

inconsistent with the plan's design concept and scope, funding, or schedule results in 

needing a new regional conformity analysis to advance the project This can occur for 

changes as small as adding, delaying, or advancing one additional lane mile; even when the 

14 NatiOnal Academtes ·Transportation Research Board 288 excerpts include page 77 "there is rea!ly no hope that a 

mathematical model can ever accurately predict the future, gtven the uncertainty in demographlcs, technological shifts, 

=~~e~~~~~;~:r~g~~·Y o~:~;~sJd~~~~i~~o~~er~~~ct~~~~wr~~~~].~~~~=t~J&~§f~~pe!ays those people and jobs are gomg to go witllm the region IS far more uncertain. 
338 


30463.305

transportation network may be quite large (Dallas-Fort Worth has 43,607 lane miles and 

15,858 center-lane miles15, or 27,360 lane miles and 5212 center-lane miles for H-GAC16). 

Unfortunately, such changes can encompass such trivial things as changing the location of a 

ramp or extending the project limits for construction warning signs if the project is described 

with specific post miles in the plan and/or TIP. Regional conformity must be re-determined 

even if the change isn't sufficient to trigger a subsequent NEPA action. Delays have occurred 

on a number of projects in Texas while awaiting a new regional conformity determination. 

This delays the benefits (e.g., safety, congestion reduction, economic) associated with the 

project. 

In an effort to add flexibility to project-level conformity determinations, the 1997 conformity 

rule had a "grandfathering" provision that locked in conformity at the NEPA approval point 

regardless of what happened later. However, that was thrown out by court action, so projectlevel conformity must be demonstrated for each federal decision point in project 

development (NEPAjenvironmental decision, design, PS&E, ROW, and construction). This 

increases the number of opportunities that a project-level conformity determination may 

trigger the need for a new regional conformity 

determination and the resulting delays. Providing an 

option for conformity to only apply to the post-NEPA 

stage prior to construction would allow for changes 

made in the NEPA process (including those made 

because of public involvement) to be incorporated into 

an updated plan prior to construction without causing 

project delays (similar to permits issued post-NEPA). 

Transportation Implications for the Pending 

2015 Ozone NAAQS 

Project delays occur because 

flexible meets rigid (a.k.a ... 

planning and project 

development meet conformity), 

the future can't be accurately 

predicted, and air quality and 

transportation planning occur on 

different schedules. 

The EPA proposal to lower the ozone NAAQS to a range between 65 and 70 parts per billion 

(ppb) may have a serious and detrimental effect on the future development of transportation 

projects in Texas and other states. 

The 2008 ozone NAAQS impacts 227 counties, EPA predicts a NAAQS set at 65 could impact 

558 counties. TxDOT estimates this amount would exceed 1000 counties, if EPA uses the 

designation criteria used historically forthe 1997 and 2008 ozone NAAQS. A National 

Association of Manufacturer's suggests most of the U.S. could be designated nonattainment 

15 NCTCOG Draft 2014 Conformtty Documentation, Appendix 10.11 at 

h11R;LLwww. nctcog.org/trap,s/ a1r I conform !ty/20 14/lO.ll.pdf 

16 Page 4 of the H·GAC Air Quality conformity Report, 2014, at htto://www.h· 

gac.com/taq/airoua!i:rL!!!._odel/conformJty/2040 A~rAeted::REI§!i;t(d!!§:$WiraneDdri£iti~Mo R:tnb..!pEffProject Defays 
339 


30463.306

if EPA uses both modeling and monitoring data (an option available under existing rules). EPA 

has not yet proposed designation criteria, so the full impacts of th:s rule remain uncertain. 

Currently, 18 Texas counties do not meet the 2008 ozone NAAQS of 75 ppb. If the NAAQS is 

revised to 65 ppb, it may impact an additional 50 counties (68 total). Attachment 4 is a map 

identifying the areas in Texas that may be impacted by this proposaL 

For the affected Texas counties, the proposal may impact transportation in the following 

ways: 

Increase potential for project delays" and potentially increase project costs; 

Place additional constraint/limit/delay on moving funds around and specifically delay the 

ability to rapidly utilize innovative funding options that may arise; 

Increase transportation planning requirements and lengthen planning schedules; 

• Increase coordination for plans and projects with MPOs/TxDOT Districts and Divisions; 

EPA, TCEQ and FHWA; 

Dilute the distribution of limited state planning dollars that are set-aside to MPOs for air 

quality planning which may pose additional risk to transportation plans and projects; 

Redistribute limited federal Congestion Mitigation Air Quality (CMAQ) funds; 

For projects in these newly designated areas, require transportation conformity 

determinations prior to; 

funding changes that impact fiscal constraint (federal, state, local and private); 

plan/Transportation Improvement Plan changes (beyond administrative amendments); 

and 

environmental clearance of changes to project funds, schedule, and/or design, 

concept and scope changes. 

Summary 

The Clean Air Act and current ozone NAAQS are working. EPA projections of future nonattainment areas show significant reductions, from 558 counties nationwide to 68 counties 

in 2025 and this will occur WITHOUT implementing new controls. Unfortunately, instead of 

focusing on the 68 counties that need extra help, the CAA requires all 558 counties to adhere 

to stricter requirements. In addition, these counties have to adhere to stricter requirements 

for 20 years AFTER achieving the NAAQS. Reforming conformity would put the focus where it 

17 For example. the $3.2 b1!!1on SH 121 concessionary payment was delayed by several months awaiting a new conformity 

determination. 

Targeted Revisions to Transportation Conformity to Reduce Project Delays 
340 


30463.307

is most needed and offer relief to areas that will achieve the NAAQS through implementation 

of existing requirements. 

Keep environmental requirements that are helpful; streamline/remove wasteful ones. 

For further details, please contact: 

Melissa Meyer 

Federal Affairs 

Texas Department of Transportation 

10 G St NE, Ste 650 

Washington, DC 20002 

202-434-0214 office 

512-658-2445 cell 

Targeted Revisions to Transportatlon Conformity to Reduce Project Delays 

30463.308

o! 

t 

"' 

,; 

il 

i 

g ,; "' !!-

2. 

g 

:? 

* b 

Typical Contribution for SIP 

Conformity Transportation Control Measures (TCMs) 

•Federal •Typical 

Conformity 

Centrals 

Transportation emissions 

are between the 2 orange 

arrows 

Federal tailpipe controls 

reduce most emissions 

SIP conformity controls 

(TCMs) are typically <1% 

to 0% of transportation 

reductions 

I 

I 

i 

I -••• •••• • "•••-----•-•• ••• • ·-- -•• ••• ••, -••- ••-•••-•-••--••-m•••-••-·--•--, J 

NOTES: Major NOx emiss1ons from EPA NEl data extracted December 2014 from: htto:/lwww.eoa.goy/ttn/chiefllrends/. 

Transportanon on-road prOJe(tlons Me from FHWA Resourc!l' Centll'r,Oecember 2014 (MOVES-2014 Oct release). Non-road, 

m1sceHaneous, mdustry and other processes, ilnd Stiltlonary fuel combustion held constant at (mformallon was not 

dVdildblt' un whdt projected reductions are). Non·mad projects are pendmg from FHWA. Based upon TC!:Q 

analysis for the Austin, Texas area, ll'missions by )o<,o hl' uf }OJS lt!llt•h ,mU prOJt'\ t<-•d 

wolh thl' r!'d hrw from }OlS JOSO. Pictures from FHdcr and BMW. 

Even with increased vehicle miles of travel (VMT), there is a major downward trend 

in transportation emissions due to federal tailpipe controls, through 2050. 

Most SIPs have sufficient future transportation emission reductions due to tailpipe 

controls so that additional conformity related controls (TCMs) are NOT needed. 

Basically, conformity discloses that the federal tailpipe controls are working to 

reduce emissions. 
342 


30463.309

Attachment 2 - Non-Road Emission Trend Example for Austin, Texas 

Targeted Revisions to Transportation Conformity to Reduce Project Delays 11 
343 


30463.310

~ § .S 

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Targeted Revisions to Transportation Conformity to Reduce Project Delays 12 
344 


30463.311

Attachment 3 - Examples Project Delays Due to Transportation Conformity 

Dallas District 

Targeted Revisions to Transportation Conformity to Reduce Project Delays 13 
345 


30463.312

Houston District 

18 Assessing the Costs Attributed to Project Delay, Texas Transportation Institute, 2011 Transportation Short Course at 

!l!-.t.P.;}l.!1LJ.g.m.Y&Cilli'.Q.QDfu..t.!ill.g.~~l§.Q..lU..Rmru:gmL1tcesentatJOns/construct!on 2/e!ti~. Example of cost calculattons 

IS provtded below the table. Targeted Revtstons to TransportatiOn Conformity to Reduce Project Delays 14 

19 Ibid. 
346 


30463.313

Targeted Revisions to Transportation Conformity to Reduce Project Delays 15 
347 


30463.314

ORAL ARGUMENT HELD SEPTEMBER 14,2017 

DECISION ISSUED FEBRUARY 16, 2018 

Case No. 15-1123 

(consolidated with 15-1115) 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

SIERRA CLUB, eta!., 

JletitiotzerJ, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION 1\GENCY, eta!., 

PETITION FOR PANEL REHEARING 

BY RESPONDENTS THE UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY, et al. 

Of Counsel: 

KAREN B. BIANCO 

U.S. EPA, Headquarters 

0 ffice of General Counsel 

;\pril 23, 2018 

JEFFREY H. WOOD 

1\cting Assistant Attorney General 

HEATHER E. GANGE 

Environmental Defense Section 

Environment & Natural Resources Division 

United States Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044 

(202) 514-4206 
348 


30463.315

CERTIFICATE AS TO PARTIES. RULINGS. 

AND RELATED CASES 

Pursuant to D.C. Circuit Rule 28(a)(1)(A), the undersigned counsel certifies as 

follows: 

A. Parties, Intervenors and Amici (Case No. 15-1123) 

Petitioners: Sierra Club; Conservation Law Foundation; Downwinders at Risk; 

Physicians for Social Responsibility Los Angeles 

Respondents: U.S. Environmental Protection Agency; E. Scott Pruitt, 

Administrator 

Intervenors: None 

Amici: Ventura County Air Quality Management District; South Coast Air 

Quality Management District 

B. Rulings under Review 

The Petitioners in both underlying consolidated cases sought review of a final 

EP1\ Rule entitled "Implementation of the 2008 National Ambient J\ir Quality 

Standards for Ozone: State Implementation Plan Requirements," 80 Fed. Reg. 12,264 

(March 6, 2015) (hereafter "SIP Requirements Rule"). The ruling under review in this 

Petition for Rehearing is the Court's Decision dated Februaxy 16, 2018 (Dkt 

1718293). 
349 


30463.316

C. Related Cases 

Case No. 15-1115 was consolidated with Case No. 15-1123, but briefed and 

argued separately. Case No. 15-1465 was severed and is being held in abeyance 

pending further order of the Court. There are no other related cases pending in this 

or other courts. 

ii 

/s/ Heather E. Gange 

HEATHER E. GANGE 

Counsel for Respondents 
350 


30463.317

1997 NAAQS 

2008 NAAQS 

CAA or Act 

EPA 

NAAQS 

SIP 

GLOSSARY 

The national ambient air quality standard limiting daily 

maximum eight-hour average ozone concentrations to 0.08 

parts per million. Jee 40 C.F.R. § 50.10(a). 

The national ambient air quality standard limiting daily 

maximum eight-hour average ozone concentrations to 

0.075 parts per million. Jee40 C.F.R. § 50.15(a). 

The Clean Air Act, 42 U.S.C. §§ 7401-7671q. 

The U.S. Environmental Protection Agency 

National Ambient Air Quality Standard 

State Implementation Plan 

iii 
351 


30463.318

TABLE OF CONTENTS 

PAGE 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ................. i 

GLOSSARY ............................................................................................................................. iii 

TABLE OF AUTHORITTES ................................................................................................. v 

INTRODUCTION AND SUM?vLARY ................................................................................ 1 

B1\CKGROUND .................................................................................................................... 4 

ARGUMENT ........................................................................................................................... 9 

I. THE COURT SHOULD RE-EVALUATE EPA'S ANTI-BACKSLIDING DETERMINATIONS UNDER CHEVRON STEP II ....... 9 

II. THE COURT ERRED WHEN IT CONSTRUED 

42 U.S.C. § 7506(c)(5) TO REQUIRE TRANSPORTATION 

CONFORMITY DEMONSTRATIONS IN ORPHAN 

MAINTENANCE AREAS ........................................................................... 12 

A. The Court's Construction of 42 U.S.C. § 7506(c)(S) To Require 

Transportation Conformity in Orphan Maintenance Areas 

Conflicts with Prior Decisions of This Court ................................ 12 

B. When 42 U.S.C. 7506(c)(S) Is Viewed In Context, It Is 

Clear That the Court's Construction Frustrates Its Statutory 

Purpose ................................................................................................. 14 

III. THE COURT SHOULD RE?vL'\ND T\'VO COMPONENTS OF 

THE SIP REQUIREMENTS RULE WITHOUTVJ\.CATUR ............. 16 

CONCLUSION ...................................................................................................................... 20 

iv 
352 


30463.319

TABLE OF AUTHORITIES 

CASES PAGE 

Allied-Signa!, In,: l!. U.J. Nt~dear Regt~!atory Comm'n, 

988 F.2d 146 (D.C. Cir. 1993) ............................................................................ 3, 17 

Cbet~ron U.S.A., Im: tJ. NRDC: 

467 u.s. 837 (1984) ······························································································ 7, 11 

Deal tl. United J tateJ, 

508 U.S. 129 (1993) .................................................................................................. 14 

FedEx Uome Delit,ery tJ. NLRB, 

849 F.3d 1123 (D.C. Cir. 2017) ............................................................................... 12 

General Dynamf,:.· Land Sys. v. Cline, 

540 U.S. 581 (2003) ................................................................................................... 16 

In re: Grant, 

635 F.2d 1227, 1232 (D.C. Cir. 2011) .................................................................... 12 

LaSbawn ~1. 11. Barry, 

87 F.3d 1389, 1393 (D.C. Cir. 1996) ....................................................................... 12 

lv!exicbem Fluor, Inc. v. EPA, 

866 F.3d 451 (D.C. Cir. 2017) ................................................................................. 16 

North CCII'o!ina v. EPA, 

550 F.3d 1176 (D.C. Cir. 2008) ............................................................................... 17 

NRDC tJ. EPA, 

643 F.3d 311 (D.C. Cir. 2011) .............................................................................. 5, 9 

NRDC t'. EPA, 

777 F.3d 456 (D.C. Cir. 2014) ...................................................................... 6, 12, 13 

NRDC v. BP./1, 

779 F.3d 1119 (9th Cir. 2015) .................................................................................... 9 

v 
353 


30463.320

RobinJon 11. She!! Oil Co., 

519 u.s. 337, 340-41 (1997) ······················································································· 4 

South CoaJi Air.Qua!. Aigmt Dist. 11. EPA, 

472 F.3d 882 (D.C. Cir. 2006) ......................................................... 5, 6, 7, 9, 12, 13 

South CoaJt Air Quality A~gmt. DiJI. v. EP/1, 

489 F.3d 1245 (D.C. Cir. 2007) ............................................................................ 6, 9 

IPi!dEarth Guardimu tJ. EPA, 

830 F.3d 529 (D.C. Cir. 2016) ................................................................................... 18 

U.S. Sugar Corp. v. EPA, 

830 F.3d 579 (D.C. Cir. 2016) .......................................................................... 14, 18 

YateJ· v. United S latex, 

135 S. Ct. 1074 (2015) ............................................................................................... 14 

STATUTES 

Clean Air Act, 42 U.S.C. §§ 7401-7671q: 

42 u.s.c. § 7407(d) ........................................................................................... 4, 7, 18 

42 u.s.c. § 7408 .......................................................................................................... 4 

42 u.s.c. § 7409(d) ................................................................................................. 2, 4 

42 U.S.C. § 7502(a) ........................................................................................................ 4 

42 U.S. C. § 7502(c) ................................................................................................... .4, S 

42 U.S.C. § 7502(c) ..................................................................................... 1, 5, 6, 9,10 

42 u.s.c. § 7503 ............................................................................................................ .4 

42 U.S.C. § 7506 ..................................................................... 2, S, 12, 13, 14, 15, 16 

vi 
354 


30463.321

42 U.S. C.§ 7506(c) .................................................................. 2, 4, 12, 13, 14, 15, 16 

42 U.S.C. § 7511 .......................................................................................................... 4 

RULES 

Fed. R. App. P. 40(a)(2) .......................................................................................................... 1 

REGULATIONS 

40 C.F.R. § 51.1105(a)(3) ...................................................................................................... 10 

40 C.F.R. § 93.102 ................................................................................................................. 20 

40 C.F.R. § 93.104 ................................................................................................................. 20 

FEDERAL REGISTER 

62 Fed. Reg. 38,856 Q uly 18, 1997) ...................................................................................... 5 

69 Fed. Reg. 23,951 (Apr. 30, 2004) ..................................................................................... 5 

73 Fed. Reg. 16,436 (Mar. 27, 2008) ..................................................................................... 6 

77 fed. Reg. 30,160 (May 21, 2012) ..................................................................................... 6 

78 Fed. Reg. 34,178 Qune 6, 2013) ................................................................................. 9, 10 

80 Fed. Reg. 12,264 (March 6, 2015) ................................................... 6, 7, 9, 10, 11, 13, 18 

vii 
355 


30463.322

INTRODUCTION AND SUMMARY 

Respondent United States Environmental Protection Agency ("EPA") 

respectfully seeks panel rehearing of the Court's February 16, 2018 decision 

"Decision"). Rehearing is warranted because the Court overlooked rwo critical points 

of law. See Fed. R. App. P. 40(a)(2). In both instances, the Court failed to recognize 

that the Clean Air Act ("CAA'' or the "Act") is silent or ambiguous as it applies to the 

specific issues presented here. As a result, the Court never meaningfully consideredas it should have-why EPA's construction of these fundamental provisions in the 

present context was reasonable. 

First, the Court's analysis is grounded on the apparent assumption that the Clean 

Air Act's anti-backsliding provision, 42 U.S.C. § 7502(e), requires retention of all preexisting "controls" when, as in this case, a national ambient air quality standard 

("NAAQS") is revised to be more stringent and the earlier standard is revoked. 

However, that provision, by its express terms, only applies in the event of "relaxation" 

of a NAAQS, and even then, only requires controls that are "not less stringent" than 

those that previously applied (z:e., not all controls). Jd. While the Court in prior cases 

upheld, as a reasonable exercise of the Agency's discretion, EPA's decision to take 

guidance from these anti-backsliding principles even when a more stringent NAAQS is 

adopted, the Court has never held that such an approach is required by the statute at all 
356 


30463.323

in this context, let alone in the expansive and inflexible manner reflected in the Court's 

Decision here. 

Second, the Court erred in construing 42 U.S.C. § 7506(c)(S) as unambiguously 

requiring transportation conformity determinations for the less stringent, now-revoked 

1997 ozone NA:\QS ("1997 NAAQS"), even where those areas were formally 

redesignated from nonattainment to attainment before that standard was revoked, and 

where those areas have been designated as being in attainment of the more stringent 

2008 ozone NAAQS. 1 The Court based this aspect of its Decision entirely on the use 

of the past tense of a single word-"was"-in 42 U.S.C. § 7506(c)(5), a statutory 

construction that the Court advanced .rua .rponte. Decision, at 27-28. The Court's 

construction of the statute-reached without the benefit of full briefing-is not only 

unwarranted under traditional tools of statutory construction, but also stands in stark 

conflict with prior decisions of this Court-a conflict the Court's Decision did not 

recognize or attempt to resolve. 

These arc not academic or purely doctrinal concerns. For example, with regard 

to the anti-backsliding issue, at present there are seven different Ni\AQS, each of 

which is subject to review at five-year intervals. 42 U.S.C. § 7409(d). Every time a 

NA.AQS is revised, there arise a host of complex, resource-intensive administrative and 

1 A transportation conformity determination is a determination that a transportation 

plan, program, or project is consistent with the area's implementation plan. 42 U.S. C. § 

7506(c)(1). 

2 
357 


30463.324

regulatory implications for EPA, States, the regulated community, and affected citizens. 

Congress simply did not intend the complete regulatory infrastmcture for every 

revoked and superseded NAAQS (especially ieH stringent NAAQS that are superseded 

by more stringent ones) to live on automatically and indefinitely, draining State and 

federal resources that would be better directed to compliance with a more stringent and 

up-to-date st1ndard. 

These legal issues and their associated policy implications are important and 

complex. This petition can only highlight the most important points. EPA therefore 

requests that, if the Court grants rehearing, it allow supplemental briefing on these 

issues. Alternatively, if the Court does not grant rehearing on these substantive issues, 

EPA requests that the Court revise the relief granted in the Decision to remand 

without vacatur, to provide EPA the opportunity to implement the Court's Decision, 

certain targeted portions of the rule at issue (hereafter "SIP Requirements Rule") that 

do not impose anti-backsliding requirements for the 1997 NAAQS in Orphan 

N onattainment Areas and do not impose transportation conformity requirements for 

Orphan Maintenance Areas. To vacate those specific provisions immediately upon 

issuance of the Court's mandate risks creating substantial confusion and disruption. As 

discussed below, \vhile remedy issues were not briefed or analyzed in detail, the 

targeted approach suggested by EPA herein fully comports fully with Allied-Signal. Int: 

3 
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t'. U.S. Nu,·/ear R(~ulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993), and related 

precedent of this Court on remand and vacatur issues. 

BACKGROUND 

Under the Act, EPA establishes N AAQS to protect public heahh with an 

adequate margin of safety for S)X'Cifkxl pollutmts (ec!f, mone). 42 U.S. C.§ 7408. Once 

a Ni\AQS is promulgated or revised, EPA must designate areas as mcc6ng or not 

meeting it ("attainment" or "nonattainment," rcspcc6vcly). [d. § 7511 (a). ·n,e Act 

also provides for EPA to redesignate areas from "nonattainment" to "attainment" once 

they attain a NAAQS and fulfill five requirements (including a NAAQS attainment 

determination and related SIP, maintenance plan, permitting, and nonattainment area 

requirements). Id § 7407(d)(3)(E). Once redesignated to attainment, these are called 

"I\1aintcnance ..:'\.reas." 

States have primary responsibility for ensuring that air CJUality within their 

jurisdic6on meets each N AAQS. C1\A requirements can include, inter alia: 

transportation conformity demonstrations and development of a State implementation 

plan ("SlP") that addresses new source review permitting. Jd. §§ 7502(c). 7503, 

7506(c). 

The "\ct requires EPA to review the N1\AQS every five years and make 

appropriate revisions. !d.§§ 7409(d)0), 7502(a)(2)(A). When such revisions "relax" a 

N.,\AQS, EPA must promulgate anti-backsliding requirements for "all areas which 

4 
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Ll 

have not attained that standard as of the date of such relaxation ... Jthatj provide for 

controls which arc not le" stringent than the controls applicable to areas designated 

nonattainment before such relaxation." Jd. § 7502(e). Because the C\"\ docs not 

speak to situations where EP,\ J'lret~~thm> a :\L\AQS by promulgating a more stringent 

standard and then revoking an older, less-stringent one. EP,\ has exercised its gapftlling authority. There, EP,\ looks to the principles in 42 U.S. C.§ 7502(c) regardint>; 

whether and how anti-backsliding measures should be imposed in particular 

circumstances. South Coa.rt /1ir.Qual. !V~gmt Di.rl. ''· EP.1. 472 F.3d 882, 900 (D.C. Cir. 

2006) (hereafter "Sotttb Coa.rl f'); .ree NlWC !'. EP~, 643 F.3d 311,319 (D.C. Cir. 2011). 

EP,-\ promulgated the first ozone N,\AQS in 1979 ("One-Il our N r\AQS"), 

followed by the second, gcnerally2 more stringent 1997 NA1\QS. 62 Fed. Reg. 38,856 

Ouly 18, 1997). EP;\ htcr revoked the One-llour NA.\QS, including all related area 

designations and classifications. 69 Fed. Reg. 23,951 U\pr. 30, 2004); .ree Solitb CoaJt r, 

4 72 F. 3d at 898. 

EPA's full revocation of the One-Hour NAAQS was challenged in this Court, 

which held that "EP t\ retains the authority to reYoke the one-hour standard so long as 

adequate anti-backsliding provisions arc introduced." South CoaJt J, 472 l1.3d at 899. 

2 Because the 1-hour NAAQS and the 8-hour NAAQS arc measured over different 

averaging times, the relative "stringency" of these two standards is not as simple to 

measure as is the relative stringency of the 1997 and 2008 versions of the 8-hour ozone 

NAAQS, which are the two NAAQS involved here. 

5 
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30463.327

The Court further stated that "[t]hc only remaining rec]uirements as to the one-hour 

NAAQS arc the anti-backsliding limitations." fcl. at 899-900; J8C al.ro SoN!h Coa.r! /lir 

Quality AZgmt. Di.rt. 11. L!P/1. 4R9 F. 3d 1245, 124R (D.C. Cir. 2007) (rch'g petition for 

SoJJt!J CoaJt f). 

In 2008 EPA promulgated an even more stringent ozone N,\,\QS (the "2008 

NAAQS"). 73 Fed. Reg. 16,436 (Mar. 27, 2008).' In 2012, EP r\ issued a rule revoking 

the less stringent 1997 NAAQS solely for purposes of transportation conformity. 77 

Fed. Reg. 30,160 (May 21, 2012). ,\decision resolving a challenge to that rule 

reiterated, "Because the II rule considered in South (.{;aJI rcvokc·d the prior N,\AQS 'in 

full, including the associated designations,' there remained no nonattainment areas or 

maintenance areas for purposes of the pre,·ious, fully revoked [One-Hour] standard." 

NRDC 1'. EP/1, 777 F.3d 456,471-72 (D.C. Cir. 2014) (quoting South Coa.rt I, 4721'.3d 

at 898). 

In 2015, EP;\ issued the SIP Requirements Rule at issue in this case to 

implement the more stringent 2008 NAAQS. The SIP Rcc1uircments Rule revoked the 

1997 N1~\ QS in full, including all designations and classifications. 80 Fed. Reg. 

12,264, 12,296 (Mar. 6, 2015). hPA also exercised its gap-filling discretion by looking 

'Because the averaging times of the 1997 8-hour NAAQS and the 2008 8-hour 

N}u'\QS are the same, the 2008 NAl1QS is definitively "more stringent" than the 1997 

version, a consideration that has obvious relevance to the "not less stringent" criterion 

in the Act's anti-backsliding provision, 42 U.S.C. § 7502(e). 

6 
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30463.328

to the principles of Section 7502(c) to cst;~blish anti-backsliding requirements for areas 

that were designated nonattainment for both the 1997 and 2008 NAAQS at the time 

the 1 ')97 N1\AQS w;1s revoked, and establish two processes whereby those 

requirements subsequently could be lifted, including the "Redesignation Substitute." 

!d. at 12,299. 

On Pebruary 16, 2018, the Court issued its Decision granting in part and 

denying in part challenges to the SIP Requirements Rule. The Decision upheld 

the revocation of the 1997 NAAQS, and reaffirmed that "EPA may revoke a 

previous NA,\QS in full 'so long as adequate anti-backsliding provisions are 

introduced."' Decision, at 12 (quoting South Coa.rt I, 472 F.3d at 899). 

Contrary to Smtih Coa.rl I and the rehearing decision for that case, 

however, the Court appeared to proceed on the assumption that 42 U.S.C. § 

7502(e) applies directly in this case. Decision, at 16. The Court did not evaluate 

the reasonableness of EPA's determinations with respect to each antibacksliding measure using the standard of review in the second step of the 

analysis established in Chevron U.SA., lm: ''· NRDC 467 U.S. 837 (1984). This 

Court's Decision also held, among other things, that anti-backsliding 

requirements must apply for the 1997 NAAQS until an area receives formal 

redesignation to attainment of the 1997 or 2008 NAAQS under 42 U.S.C. § 

7407(d)(3)(E), Decision, at 16, 21, and that the plain language of 42 U.S.C. § 

7 
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30463.329

7506(c)(5) requires transportation conformity demonstrations in areas that were 

redesignated to attainment of the 1997 NAAQS prior to its revocation and 

designated attainment for the 2008 Ni\AQS ("Orphan l:Vfaintenance Areas"). 

The Court also vacated all nine specific portions of the SIP Requirements Rule that 

were successfully challenged. Decision, at 3. 

8 
363 


30463.330

ARGUMENT 

I. THE COURT SHOULD RE-EVALUATE EPA'S ANTI-BACKSLIDING DETERMINATIONS UNDER CHEVRON STEP II. 

The CAA anti-backsliding provision docs not speak to situations where, as 

here, a Nr\1\QS is strengthened. The Court therefore should have performed a 

Chet'ron Step II analysis when evaluating EPA's determinations of what is necessary to 

provide sufficient anti-backsliding protection for the 1997 NAAQS. 

The plain language of Section 7502(e) "[by] its terms ... applies only when 

EPA 'relaxes' a primary NAAQS," not when it strengthens one. South Coa.rt I, 472 

F.3d at 900 (emphasis added); .ree South Coa.ft Air.Qual. Mgmt. Di.rt., 489 F.3d at 1248; 

NRDC v. EPA, 643 F.3d at 319; NRDC t'. EPA, 779 F.3d 1119, 1121 (9th Cir. 2015). 

In the SIP Requirements Rule, .EPA therefore looked to the principles of 42 

U.S.C. § 7502(e), as reasonably applied in the specific contexts presented here, 

to f!ll the statutory gap, instead of applying that provision directly. 

The Agency first found that Section 7502(e) by its terms was never 

intended to apply to areas attaining a standard at the time of its relaxation, and 

that in nonattainment areas the purpose of anti-backsliding is "to ensure that 

the !eiJef ofprvtedion provided by requirements for the [revoked Ni\AQS] would remain 

in place as areas transitionO to implementing the more stringentQ standard." 78 Fed. 

Reg. 34,178, 34,214/1 (June 6, 2013) (emphasis added); m 80 Fed. Reg. 12,299. 

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364 


30463.331

The ;\gency next found that the air quality in Orphan Nonattainmcnt 

Areas-which were designated attainment for the more stringent 2008 

N;\1\QS at the time the 1997 N ,\i\QS was revoked-were not "areas which 

have not attained [the 1997 NAAQSI as of the date of' revocation, 42 U.S.C. 

§ 7502(e), because it is mathematically impossible to attain the 2008 NAAQS 

without having already attained the weaker 1997 NAAQS. JA-354; 80 Fed. 

Reg. at 12,297 /3; 7R Fed. Reg. at 34,219 /1; EP,\ Brief, at 17. EPA therefore 

determined that it did not need to promulgate anti-backsliding measures for 

these areas, because Section 7502(c) was not designed to apply to areas that 

have attained a standard as of the date of revocation. In contrast, antibacksliding measures are needed in areas that}1ilcd to attain the 1997 NAAQS 

as of its revocation. 40 C.F.R. § 51.!105(a)(3); EPA Brief, at 38-42; 80 Fed. 

Reg. at 12,297 /3; 78 Fed. Reg. at 34,219/1;JA-363. 

\X'ith respect to areas where anti-backsliding measures are needed (i.e., 

those designated nonattainment for both the 1997 and 2008 N i\AQS), EP;\ 

explained why the 17 recjtlirements codified by the SIP Requirements Rule arc 

tnorc than adequate to ensure that projected improvctnents in air quality 

provided by requirements for the 1997 NAAQS would not be frustrated, 

while also not "imposing burdenson1e intermediate requirements left over 

from obsolete standards." J A-349; 80 Fed. Reg. at 12,284; 78 Fed. Reg. at 

34,215. That explanation included the record basis for these conclusions, 

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30463.332

including evidence of continuous improvement in air ~1uality where the same 

17 anti-backsliding recjuirements were implemented for the formerly-revoked 

One-Hour N,\1\QS. RO Fed. Reg. at 12,2R4; .ree J A-349. 

Each of those determinations reasonably addressecl issues that the 

statute docs not address, and therefore should have been entitled to deference. 

Sec Chet1ron, 467 U.S. at 866 .. As noted above, even where the .Act's antibacksliding provision applies directly, it still only requires that current controls 

be "not less stiingent" tl1an prior controls, and does not establish a blanket 

requirement that aff prior controls must be retained, including in Orphan 

Nonattainment Areas attaining the more stringent NA:\QS. In this case, 

however, the Court erroneously presumed based on South Coast I that "EP,\ is 

required by statute to keep in place measures intended to constrain ozone 

levels," and based on that fundamentally incorrect presumption, proceeded to 

apply Section 7502(e) directly to hold that particular measures must be 

retained simply because, in the Court's view, they constituted a "controlU." 

Decision, at 16. EP1\ submits that the Court erred by failing to perform the 

required Chetmm Step T I analysis for each of these determinations. It therefore 

seeks rehearing so that the Court n1ay do so based upon the parties' earlier 

briefing and/or any supplemental briefing that the Court may deem 

appropriate. 

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II. THE COURT ERRED WHEN IT CONSTRUED 42 U.S.C 

§ 7506(c)(5) TO REQUIRE TRANSPORTATION 

CONFORMITY DEMONSTRATIONS IN ORPHAN 

MAINTENANCE AREAS. 

The Court also erred by const1uing 42 U.S.C. § 7506(c) to rec1uire 

transportation conformity demonstrations in Orphan Maintenance Areas (i.e., 

areas formally redesignated attainment for the 1997 NAAQS prior to 

revocation), Decision, 27-28. This both conflicts v;cith prior decisions of this 

Court and is flawed as a matter of statutory constn1ction. 

A. The Court's Construction of 42 U.S.C. § 7506(c)(S) To Require 

Transportation Conformity in Orphan Maintenance Areas 

Conflicts with Prior Decisions of This Court. 

The Court's Decision that 42 U.S. C.§ 7506(c)(5) requires transportation 

confonnity demonstrations in areas redesignated to maintenance for the re,·okcd 1997 

Nr\AQS conflicts with Jouth C!Jtut I, 472 F.3d at 899, and NRDC tJ. EPA, 777 F. 3d 

456, 470-71, \V:ith respect to the consequences of a full NAAQS revocation. At the 

very least, th:is constitutes an important legal issue that the Court failed to 

acknowledge and address. Arguably, it also violates the law-of-the-circuit doctrine, 

which requires that "the same z:uue presented in a later caJe in the same court should lead 

to the same result." FedEx Home De!iz•ery z•, NLRB, 849 F.3d 1123, 1127 (D.C. Cir. 

2017) (emphasis in original) (quoting In reGrant, 635 F.3d 1227, 1232 (D.C. Cir. 

2011) and LaSbawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996)). 

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30463.334

The South Coa.rt I decision held that, because EPA revoked the prior One-Hour 

NAAQS in full, including the associated designations, "there remained no ... 

maintenance areas for purposes of the previous, fully revoked standard," and "the 

only remaining requirements as to the one-hour Ni\AQS are the anti-backsliding 

limitations." NEDC tJ. EP/1, 777 F.3d at 471 (quoting South Coa.rt I, 472 F.3d at 898, 

899). 

This Court not only reaffirmed that result, but also did so with respect to 

Section 7506(c)(5) and the 1997 NAAQS in NRDC 11. EPA, 777 F.3d at 471-72. In 

that decision, the Court vacated part of an earlier rule in which EPA partially revoked 

the 1997 NAAQS solely for purposes of transportation conformity. In so doing, the 

Court distinguished South Coart I, reiterating that because the One-Hour NAAQS had 

been fully revoked, "there remained no nonattainment areas or maintenance areas for 

purposes of the previous, fully revoked standard." I d. at 471. The Court also 

expressly held that the partial revocation at issue in NEDC v. EPA left the 

designations and redesignations for the 1997 ozone NAAQS in place, and EPA could 

not lift Section 7506(c)(5) requirements "for areas that remain in nonattainment or 

maintenance status under the 1997 NAi\QS." 777 F.3d at 470. 

In this case, the SIP Requirements Rule revoked the 1997 ozone NAAQS in 

full, including all existing designations and classifications. Decision, at 9; see 80 Fed. 

Reg. at 12,297/1-2. Consequently, under the Court's precedent, there simply no 

longer are any "remain[ing)" maintenance areas for the 1997 NAAQS, and thus, there 

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30463.335

exist no areas of this type to which transportation conformity for that now-revoked 

standard could apply. The Court's construction of Section 7506(c)(S) to nonetheless 

require transportation conformity demonstrations based on an area's pre-revocation 

status as a maintenance area conflicts directly with this precedent. The Court's 

Decision on this issue never acknowledged this precedent or attempted to reconcile it 

with its present analysis. See Decision, at 27-28. For this reason alone, the Court 

should grant rehearing regarding the construction of 42 U.S.C. § 7506(c)(S). 

B. When 42 U.S.C. 7506(c)(5) Is Viewed In Context, It Is Clear That 

the Court's Construction Frustrates Its Statutory Purpose. 

The Court also erred in finding that Section 7506(c)(S) unambiguously requires 

transportation conformity demonstrations in Orphan Maintenance Areas based solely 

upon the use of the past tense "was" in that provision (an argument that was not 

specifically advanced by Petitioners in their briefing here). Decision, at 27 ("an area 

that wa.r designated as a nonattainment area but that wa.r later redesignated ... as an 

attainment area") (quoting 42 U.S.C. § 7506(c)(5)) (emphasis in original)). It is wellestablished that "[t]he plainness or ambiguity of statutory language is determined [not 

only] by reference to the language itself, [but as well by] the specific context in which 

that language is used, and the broader context of the statute as a whole." Yate.r v. 

United StaleJ, 135 S. Ct. 1074, 1081-82 (2015) (quoting RobimYJn v. Shell Oil Co., 519 U.S. 

337,340-41 (1997)) (citations omitted); Jee afro Dealt;. United .'ltate.r, 508 U.S. 129, 132 

(1993); U.S. Sugar Corp. v. EPA, 830 F.3d 579,605 (D.C. Cir. 2016). It is at least 

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30463.336

ambiguous whether Congress intended the word "was" to mean an area "was 

designated as a nonattainment area" under the current standard as EPA reasonably 

consttues the word, rather than "was" e11er designated nonattainment--even pursuant 

to a former standard now revoked. But when Section 7506(c)(S) is viewed in context, 

it is clear that that provision is intended to facilitate the implementation of operative 

(i.e., not revoked) NA.AQS 

Section 7506(c)(S) is a sub-section of the CAA conformity provision, 42 U.S.C. 

§7506(c), which bars federal funding, support or approvals for activities that do not 

conform to applicable implementation plans. 42 U.S.C. § 7506(c)(l), (c)(2). 

Conformity to an implementation plan is defined to implement presently-applicable 

NAAQS: 

Conformity to an implementation plan means--

(A) conformity to an implementation plan's purpose of eliminating or 

reducing ... violations of the national ambient air quality standards and 

achieving expeditious attainment of such standards; and 

(B) that such activities will not ... cause or contribute to any new 

violation of any standard ... increase the frequency or severity of any 

existing violation ... or ... delay timely attainment of any standard .... 

42 U.S.C. § 7506(c)(l). Substituting "revoked national ambient air quality standards" 

into these provisions is not consistent with the apparent purpose of 42 U.S.C. § 

7506(c). In fact, as this Court has recently stressed in an analogous statutoty 

construction issue in another Clean Air Act case, where a statute refers to events that 

happened in the past, it is not presumed to have continuing effects into the future. 

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30463.337

See Mexithem ftttor. Inc: z;. EPA, 866 F.3d 451,459 (D.C. Cir. 2017) ("For example, 

President Obama replaced President Bush at a specific moment in time: January 20, 

2009, at 12 p.m. President Obama did not 'replace' President Bush every time 

President Obama thereafter walked into the Oval Office."). Therefore, Congress' use 

of the past tense does not unambiguously reguire that Section 7506(c)(5) apply when 

maintenance areas no longer even exist due to the revocation of the 1997 NAi\QS. 

See also General Dynami':c Ltmd .SJ,; t•. Cline, 540 U.S. 581, 585-86 (2003) (commonly 

used terms can have several commonly-understood meanings). The Court therefore 

should grant rehearing regarding the construction of 42 U.S.C. § 7605(c)(5) for this 

reason as well, to consider whether EPA's construction of this provision to refer, in 

this context, to tttrrent NAAQS conformity obligations is reasonable. 

III. THE COURT SHOULD REMAND TWO COMPONENTS OF THE 

SIP REQUIREMENTS RULE WITHOUT VACATUR. 

Finally, to the extent these issues arc not resolved by the reguested substantive 

rehearing, EP i\ seeks rehearing with respect to vacatur of certain provisions of the 

SIP Reguirements Rule, as opposed to a simple remand of those provisions of the 

rule to EPA, 'vithout vacatur, for further proceedings consistent with the Court's 

Decision. Specifically, EPA seeks this revision of the relief order with respect to the 

provisions that: (1) do not impose anti-backsliding measures on Orphan 

Non attainment 1\reas; and (2) establish that transportation conformity reguirements 

for the revoked 1997 NAi\QS are not applicable in Orphan Maintenance Areas. 

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30463.338

The Court has long a long-established test for exercising its discretion to 

remand rule provisions without vacatur, based upon the disruptive consequences of 

an immediate change and the level of doubt regarding the correctness of the Agency's 

choices. SeeAI!ied-S~gna/, In,: t'. U.S. Nudear R~gulatory Comm'n, 988 F.2d 146, 150-51 

(D.C. Cir. 1993). In appropriate cases, disruptive consequences in and of themselves 

can be a sufficient basis for remand without vacatur, notwithstanding the Court's 

merits finding that the rule at issue was legally flawed. See, e.g., North Carolina tJ. EPA, 

550 F.3d 1176 (D.C. Cir. 2008). Here, the disruption caused by immediately vacating 

these provisions of the SIP Requirements Rule would be substantial and profoundly 

inequitable. Affected federal and State agencies, State and local planning 

organizations, and members of the regulated community have complied with the Rule 

in good faith since 2015, including the full revocation of the 1997 NAi\QS in their 

planning decisions. Immediate vacatur also would create significant gaps in EPA's 

implementation program-" EPA therefore requests that these components be 

remanded 'W'ithout vacatur to enable the Agency to implement the Court's Decision in 

an orderly and equitable fashion. 

• EPA is currently evaluating the impact of the Decision on the specific requirements 

that would apply as anti-backsliding measures. For example, EPA has detailed 

regulations addressing how transportation conformity and NSR permitting 

determinations arc made in different areas and different circumstances, and the 

i\.gency is evaluating how they would apply in areas affected by the Court's decision. 

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30463.339

Immediately vacating the SIP Requirements Rule provisions and guidance 

excusing the 13 Orphan Nonattainment i\reas from anti-backsliding provisions for 

the revoked 1997 NAAQS would impose a significant burden on these areas, without 

conferring a comparable benefit. Dec!. of William Wehrum ("Wehrum Dec!.") ,[,[8, 

T7. All of these areas factually did attain the 1997 NAAQS by their respective 

attainment dates, all currently have Clean Data Determinations for the standard (i.e., 

EP 1\ already determined that their air quality meets the NAl">QS), and many are likely 

eligible for formal redesignation under 42 U.S.C. § 7407(d)(3)(E)-which also would 

excuse them from anti-backsliding. Id '1!17 -18; Jee e.g., WiJdEarth Guardian,· t'. EPA, 

830 F.3d 529, 533, 536 (D.C. Cir. 2016). 

But these areas were prevented from seeking such redesignation, because the 

SIP Requirements Rule reflects EPA's long-standing position that areas cannot be 

redesignated for revoked standards. See 80 Fed. Reg. at 12,304-305; JA-352; Wehrum 

Decl. ,[17. EPA estimates that States will need 18 months to develop the necessary 

SIP revisions that comprise the core of the application through state-level notice-andcomment rulemaking, after which EPA will need approximately 12 months to review 

them and then take final action through federal notice-and-comment rulemaking. 

Wehrum Dec!. '1!19; see 42 U.S.C. § 7407(d). A remand without vacatur of the Rule 

provisions exempting them from anti-backsliding requirements-which they likely 

would be excused from by now, but for the SIP Requirements Rule-would allow 

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30463.340

States to efficiently obtain this relief without the burden and disruption caused by the 

revival of unnecessary controls. 

Absent a remend without vacatur, the disruption that government entities and 

regulated parties will experience will be particularly severe. For example, 

transportation conformity would apply to all Orphan Nonattainment Areas for antibacksliding purposes-as well as to all69 Orphan Maintenance Areas under the 

Court's construction of Section 7605(c)(5). Wehrum Dec!. mf 7-11, 18-20. Planning 

and construction of infrastructure projects is a continuous process that cannot simply 

stop without significant economic and potential safety implications. See Declaration 

of Matthew Welbcs ("Welbes Decl.") '\M] 4-5, 9-11; Declaration of Walter Waidelich, 

Jr. ("Waidelich Dec!.") ,l~ 4-7, 9, 12. These 82 Orphan Nonattainment and 

Maintenance Areas, where millions of Americans reside, include large metropolitan 

areas such as Boston, Detroit, Indianapolis, Milwaukee and Las Vegas; mid-size cities 

such as Birmingham, Louisville, Norfolk, and Raleigh-Durham; and smaller cities such 

as Eric, P J\, Lansing, MI, Charleston, \Wand Rochester, NY. Wehrum Decl. ~ 11. 

Under the SIP Requirements Rule, as of April2015 these areas were no longer 

required to demonstrate conformity for the 1997 NAAQS. In addition, many of them 

make no conformity determinations at all, because they are designated attainment for 

all current NAAQS for which transportation conformity applies. Id. ~ 10. The 

corresponding State and local agencies therefore likely lack altogether, or have 

insufficient, administrative and technical capacity to implement transportation 

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30463.341

conformity. I d. Consequently, many Orphan Maintenance Areas and Orphan 

Nonattainment Areas-that have in actuality attained the 1997 NAAQS and are also 

meeting the more stringent 2008 NAAQS---could be subject to substantial harm, 

because new or revised transportation plans, improvement programs and non-exempt 

highway or mass transit projects cannot be approved, with the effect that billions of 

dollars appropriated for infrastructure improvements could be frozen or lost. See 40 

C.P.R.§§ 93.102, 93.104; Wehrum Dec!. ,M\12-13; Waidelich Dec!. '1]'1]12-13; Welbes 

Decl. ml6, 9-11. Imposition of other anti-backsliding measures also would cause 

additional turmoil and be equally burdensome in affected Orpnan Nonattainment 

Areas that factually attained the 1997 NAAQS. See Wehrum Dec!. '1]'1]14-16. 

CONCLUSION 

This petition for rehearing should be granted for the substantive reasons 

discussed above. Alternatively, the vacatur of the SIP Requirements Rule provisions 

excusing Orphan Nonattainment /l.reas from anti-backsliding requirements for the 

1997 NAAQS and removing transportation conformity requirements for Orphan 

Maintenance Areas should be converted to a remand \vithout vacatur. 

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30463.342

Of Counsel: 

KAREN B. BIANCO 

U.S. EPA, Headquarters 

Office of General Counsel 

J\pril 23, 2018 

Respectfully submitted, 

JEFfREY H. WOOD 

Acting Assistant Attorney General 

lsi Heather E. Gange 

HEATHER E. GANGE 

Environmental Defense Section 

Environment & Natural Resources Division 

United States Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044 

(202) 514-4206 

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30463.343

CERTIFICATE OF COMPLIANCE WITH WORD LIMIT 

I certifY that pursuant to Rule 32(a)(7)(C)(i) of the Federal Rules of Appellate 

Procedure and D.C. Circuit Rule 32(e)(1), the foregoing Petition is proportionately 

spaced, has a typeface of 14 points, and contains 4,542 words, exclusive of those parts 

exempted by Rule 32(a)(7)(B)(iii) and D.C. Circuit Rule 32(e)(1). I have relied on 

Microsoft Word's calculation feature. 

Date: April23, 2018 lsi Heather E. Gange 

Heather E. Gange 

CERTIFICATE OF SERVICE 

I hereby certifY that on this 23'; day of April2018, I served the foregoing 

Petition on all registered counsel through the Court's electronic filing system (ECF) 

and United States Postal Service, postage prepaid. 

Date: April23, 2018 

-22-

lsi Heather E. Gange 

Heather E. Gange 
377 


30463.344

ORAL ARGUMENT HELD SEPTEMBER 14, 2017 

DECISION ISSUED FEBRUARY 16, 2018 

Case No. 15-1123 

(consolidated \Vith 15-1115) 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

SIERRA CLUB, et aL, 

PetitionerJ, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, eta!., 

ReJpondent.r. 

ADDENDUM TO PETITION FOR PANEL REHEARING 

BY RESPONDENTS THE UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY, et al. 

Of Counsel: 

KAREN B. BIANCO 

U.S. EPA, Headc1uartcrs 

Office of General Counsel 

April 23, 2018 

JEFFREY H. WOOD 

A.cting Assistant Attorney General 

HEATHER E. GANGE 

Environmental Defense Section 

Environment & Natural Resources Division 

United States Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044 

(202) 514-4206 
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30463.345

TABLE OF CONTENTS 

Certificate of Parties and Amici Curiae 

Corporate Disclosure Statement 

Opinion for which Rehearing is Being Sought 

Declaration of William L. Wehrum, Assistant Administrator 

of the U.S. Em·ironmental Protection Agency's 

Office of Air and Radiation 

Declaration of Walter C. Waidelich, Jr., Executive Director 

of the Federal Highway Administration, an operating 

administration of the U.S. Department of Transportation 

Declaration of Matthew J. Welbes, Executive Director 

of the Federal Transit Administration, an operating 

administration of the U.S. Department of Transportation 

:\DD-1 

N/N 

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1\DD-81 

1 No Corporate Disclosure Statement is required from Respondents the United States 

Environmental Protection Agency ("EPN') and E. Scott Pruitt, Administrator of the 

EPA, under Federal Rule of Appellate Procedure 26.1 or Circuit Rule 26.1. 
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CERTIFICATE AS TO PARTIES, RULINGS, 

AND RELATED CASES 

Pursuant to D.C. Circuit Rule 28(a)(1)(I\), the undersigned counsel certifies as 

follows: 

A. Parties, Intervenors and Amici (Case No. 15-1123) 

Petitioners: Sierra Club; Conservation Law Foundation; Downv:indcrs at Risk; 

Physicians for Social Responsibility- Los Angeles 

Respondents: U.S. Environmental Protection Agency; E. Scott Pruitt, 

Administrator 

Intervenors: None 

1\mici: Ventura County Air Quality Management District; South Coast Air 

Quality Management District 

B. Rulings under Review 

The Petitioners in both underlying consolidated cases sought review of a final 

EPA Rule entitled "Implementation of the 2008 National Ambient Air Quality 

Standards for Ozone: State Implementation Plan Requirements," 80 Fed. Reg. 12,264 

(March 6, 2015) (hereafter "SIP Requirements Rule"). The ruling under review in this 

Petition for Rehearing is the Court's Decision dated February 16,2018 (Dkt 

1718293). 

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C. Related Cases 

Case No. 15-1115 was consolidated with Case No. 15-1123, but briefed and 

argued separately. Case No. 15-1465 was severed and is being held in abeyance 

pending further order of the Court. There arc no other related cases pending in this 

or other courts. 

/s/ Heather E. Gange 

HEATI-!ER E. GANGE 

Counsel for Respondents 

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~lnite!t ~fates Qlourt of J\ppeals FOR TilE IJISTRICT OF COLUMBIA CIRCl!IT 

Argued September 14,2017 Decided Feb mary 16, 2018 

No. 15-1115 

SOli'l'll COAST AIR QUALITY MANA«I'MENT DISTRICT. 

PETI'IIONI'R 

v. 

E!'JVIRONMENTAL PROTECTION AGENCY. LT AL .. 

RESI'tlNIJI'.NTS 

NATIONAL ENVIRONMt.N'l i\L DEVU OI'MENT ASSt>C'IATION'S 

CLEAN AIR PROJECT. El ,\1.., 

INTERVENORS 

Consolidated with 15-1123 

On Petitions lor Review of a Final Action 

of the Environmental Protection Agency 

lv!egan E. Lorenz Angarita argued the cause for petitioner 

South Coast Air Quality Management District. With her on the 

briefs were Kurl R. Wiese and Barbara Baird. 

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2 

Seth L. Johnson argued the cause for Environmental 

Petitioners. With him on the briefs was DavidS. Baron. 

Kelvin J Dowd and Andrew B. Kolesar III were on the 

brief for amicus curiae Ventura County Air Pollution Control 

District in support of petitioner South Coast Air Quality 

Management District. 

Healher E. Gange, Trial Attorney, U.S. Department of 

Justice, argued the cause for respondents. With her on the brief 

was John C. Cruden, Assistant Attorney General at the time the 

brief was filed. 

Se1h l.. Johnson argued the cause for Environmental 

Movant-Intervenors. With him on the brief was David S. 

Baron. 

Megan E. Lorenz Angarita. Kurt R. Wiese, and Barbara 

Baird were on the brief for amicus curiae South Coast Air 

Quality Management District in support of respondent's 

opposition to Sierra Club's argument regarding reasonably 

available control technology in Case No. 15-1123. 

Leslie Sue Rills was on the brief for intervenor for 

respondent National Environmcntnl Development 

Association's Clean Air Project in support of U.S. 

Environmental Protection Agency. 

Before: GARLAND, Chief .Judge, ROGERS, Circuit Judge, 

and SEN'! ELLE. Senior Circuit .Judge. 

Opinion f<Jr the Court lilcd by Senior Circuit .lu<(<!;e 

SENTELLE. 

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SE'iTELLE. Senior Circuit .!uc~r<e: In this consolidated 

proceeding, we consider petitions for review of an 

Environmental Protection Agency ("EPA") tina! rule entitled 

''Implementation of the 2008 National Ambient Air Quality 

Standards for Ozone: State Implementation Plan Review 

Requirements," 80 Fed. Reg. 12,264 (Mar, 6. 20!5). In Case 

No. 15-1 I 15. petitioner South Coast Air Quality Management 

District (''South Coast") contends that the EPA incorrectly 

concluded that precedent of this Court requires emissions 

reductions that demonstrate reasonable further progress all 

come from within the nonattainmcnt area. In Case No. 15-

1123. petitioners Sierra Club, Conservation Law Foundation, 

Downwinders at Risk, and Physicians for Social Responsibility 

(Los Angeles) ("Environmental Petitioners") contend that in 

enacting the Final Rule, the EPA acted arbitrarily and 

capriciously in its revocation of 1997 National Ambient Air 

Quality Standards and relaxation of previously applicable 

requirements under the Clean Air Act. 

For the reasons stated below, we deny South Coast's 

petition for review. and grant in part and deny in patt that of 

the Environmental Petitioners. 

I. BACKGROUND 

A. The Clean Air Act Framework 

The Clean Air Act ("CAA'' or "Act'") directs the EPA to 

set National Ambient Air Quality Standards (''NAAQS") for 

air pollutants ''allowing an adequate margin of safety 

requisite to protect the public health.'' 42 U.S.C. ~ 7409(b)( I). 

The CAA also requires the EPA to establish air quality control 

regions and designate them as "attainment'' for "any area ... 

that meets'' the NAAQS. "nonattainmcnt" for "any area that 

does not meet" the NAAQS. and "tmclassifiablc'' for ''any area 

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4 

that cannot be classified on the basis of available information." 

§ 7407(d)(I)(A). 

The EPA must classify each area ''designated 

nonattainmcnt for ozone·~ as '·marginal," "moderate.'' 

''serious,'' '"severe:· or "extreme'' based on the degree to which 

the ozone level in the area exceeds the NAAQS. 9 7511. "An 

area that exceeds the NAAQS by a greater margin is given 

more time to meet the standard but is subjected to progressively 

more stringent emissions controls for ozone precursors, 

namely, volatile organic compounds (VOCs) and oxides of 

nitrogen (NO,).'' Natural Res. Del Council v. EPA (NRDC 

201J9), 571 F.3d 1245, 1250 (D.C. Cir. 2009). 

The Act places on the states "the primary responsibility for 

assuring air quality" by submitting state implementation plans 

(''SIPs'') that specify how they will achieve and maintain 

compliance with the NAAQS. 42 U.S.C. § 7407(a). Stales 

must formally adopt SIPs through state notice and comment 

rulemaking and then submit the SIPs to the EPA tc>r approval. 

9 741 O(a). For those areas designated as "nonattainment." SIPs 

must show how the areas will achieve and maintain the relevant 

NAAQS. Jd. 

A nonattainment area may be redesignated to attainment if 

the EPA (I) has determined that the area has attained the 

applicable NAAQS; (2) has tblly approved the applicable SIP 

under~ 7410(k); (3) has determined that the attainment is due 

to permanent and enforceable emissions reductions; (4) has 

fully approved a § 7505a ·'maintenance plan," which 

demonstrates that the area will maintain the NAAQS tor at least 

I 0 years after the redesignation. see § 7505a(a); and (5) has 

determined that the state containing the area seeking 

redesignation has mel all applicable SIP requirements. 

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§ 7407(d)(3)(E). Areas redesignated as attainment are rcterred 

to as ''maintenance areas:· 

B. SIPs for Nonattainment Areas 

As is relevant to this case. the Clean Air Act requires SIPs 

for nonattainment areas to include the following provisions: 

1. Reasonable Further Progress 

SIPs lor nonattainment areas "shall require reasonable 

further progress.'· 9 7502(c)(2). "'Reasonable further progress" 

is defined as .. such annual incremental reductions in emissions 

of the relevant air pollutants as arc required by this part or may 

reasonably be required by [the EPAJ for the purpose of 

ensuring al\ainment of the applicable [NAAQS] by the 

applicable date:• § 750 I ( 1 ). The Clean Air Act requires an 

area in a moderate or greater degree ofnonattainment to reduce 

emissions ofVOCs by fifteen percent in the tirst six years after 

November 15, 1990. § 75Jla(b)(l )(A). For areas in a serious 

or greater degree of nonattainmcnt. subsequent reductions in 

VOC emissions must average three percent per year over each 

consecutive three-year period until the area reaches attainment. 

§ 751la(c)(2)(B). 

2. Reasonably Available Control 

Technology 

SIPs for ozone nonattainment areas must also ·'provide for 

the implementation of all reasonably available control 

measures as expeditiously as practicable (including such 

reductions in emissions from existing sources in the area as 

may be obtained through the adoption. at a minimum. of 

reasonably available control technology)." § 7502(c)(l). For 

nonattainment areas classified as moderate and above, SIPs 

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must .. require the implementation of reasonably available 

control technology" with respect to all major sources ofVOCs 

in the area and any sources that emit VOCs in the area that arc 

covered by a control technique guideline. ~ 7511 a(b )(2). The 

reasonably available control technology requirement also 

applies to major sources of NO,. § 7511 a( f). 

3. New Source Review 

SlPs governing nonattainmcnt areas must require permits 

for the construction of new or modified sources of air pollution. 

§§ 7502(c)(5), 7503, 7410(a)(2)(C). The goal ofNew Source 

Review is to require permits to ensure that new or modified 

sources will not exacerbate the pollution problem in the 

nonattainment area. § 7503(a)(l)(A), (a)(2), (c). New Source 

permits for major sources ofVOCs require the proposed source 

(I) to comply with the lowest achievable emissions rate and 

(2) to obtain pollution offsets representing equal or greater 

reductions of a pollutant at issue in the area. !d. 

4. Conformity 

The Act mandates that nonattainment and maintenance 

areas are subject to "conformity requirements," so that .. fnJo 

department, agency, or instrumentality of the Federal 

Government shall engage in. support in any way or provide 

1inancial assistance for, license or permit. or approve. any 

activity which does not confi)nn to an implementation plan." 

§ 7506(c)(l ). (5). Federally funded projects must "conform" 

to SIPs, meaning that the projects will not ''cause or contribute 

to any new violation,'' ''increase the frequency or severity of 

any existing violation," or ''delay timely attainment of any 

standard or any required interim emission reductions or other 

milestones in any area." § 7506(c)( 1 )(B). These areas are also 

subject to the more specific transportation contormity 

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7 

requirements, whereby federal agencies may not "approve. 

accept or fund any transportation plan, program or project 

unless'' it conforms to an applicable SIP. § 7506(c)(2). With 

respect to transportation conformity requirements, the EPA is 

responsible lor promulgating, and periodically updating, 

··criteria and procedures for demonstrating and assuring 

conformity in the case of transportation plans. programs, and 

projects.'' § 7506(c)(4)(B). 

5. Contingency Measures 

SIPs must include contingency measures that take effect 

automatically "if the area fails to make reasonable ftrrther 

progress. or to attain the [NAAQS] by the attainment date." 

§§ 7502(c)(9), 7511a(c)(9). 

C. Anti-Backsliding Measures for Revoked NAAQS 

The Clean Air Act requires the EPA to "complete a 

thorough review'' of each NAAQS every five years and "make 

such revisions ... and promulgate such new standards as may 

be appropriate." § 7409(d)( 1 ). 1n promulgating new standards, 

if the EPA relaxes a NAAQS, it shall promulgate antibacksliding measures tor all areas that have not attained that 

standard as of the date of the relaxation. § 7502(e). The antibacksliding measures ''shall provide tor controls which are not 

less stringent than the controls applicable to areas designated 

nonattainment before such relaxation.'' ld. 

D. Ozone NAAQS 

In 1979, the EPA promulgated the tirst ozone NAAQS 

based on a one-hour average concentration of 0.12 pat1s per 

million (ppm). Revisions to the NAAQS for Photochemical 

Oxidants, 44 Fed. Reg. 8202, 8202 (feb. 8. 1979). In 1997, 

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after determining that the one-hour NAAQS was inadequate to 

protect public health, the EPA promulgated a new NAAQS 

based on an eight-hour average of 0.08 ppm. NAAQS for 

Ozone. 62 Fed. Reg. 38,856, 38,858 (July 18. 1997). Although 

the EPA replaced the one-hour NAAQS with an eight-hour 

NAAQS, it determined that it would continue to enforce the 

one-hour NAAQS until ·'an area has attained air quality that 

meets the !-hour standard.'' Implementation of Revised Air 

Quality Standards for Ozone and Particulate Matter, 62 Fed. 

Reg. 38.421,38.424 (July 18, 1997). In a 2004 rule. the EPA 

revoked the one-hour NAAQS effective June 15, 2005. Final 

Rule to Implement the 8-Hour Ozone NAAQS-Phasc 1. 69 

Fed. Reg. 23,951, 23.951 (Apr. 30, 2004). This Court held that 

the EPA has the "authority to revoke the one-hour standard so 

long as adequate anti-backsliding provisions are introduced'' 

South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882,899 

(D.C. Cir. 2006), clarified on denial <J/reh'g, 489 !'.3d 1245 

(D.C. Cir. 2007). 

In 2008, the EPA determined that the 1997 NAAQS was 

inadequate to protect public health. The EPA therefore 

promulgated a new NAAQS of 0.075 ppm of ozone averaged 

over eight hours. NAAQS tor Ozone, 73 Fed. Reg. I6,436. 

16,436 (Mar. 27, 2008). ''The 2008 ozone NAAQS retains the 

same general fOrm and averaging time as the 0.08 ppm 

NAAQS set in 1997, but is set at a more stringent level.'' 

Implementation of the 2008 NAAQS tor Ozone: State 

Implementation Plan Requirements. 80 Fed. Reg. 12,264, 

12.265 (Mar. 6, 2015). 

E. The Final Rule 

On March 6, 2015, the EPA tinalized a rule that "revises 

existing regulations and guidance as appropriate to aid in the 

implementation of the 2008 ozone NAAQS.'' 80 Fed. Reg. at 

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12,265. As part of the Final Rule, the EPA revoked the 1997 

NAAQS '"for all purposes and establish[ edJ anti-backsliding 

requirements tor areas that remain designated nonattainment 

lor the revoked NAAQS." ld. 

II. STANDARD OF REVIEW 

We will not set aside EPA action under the Clean Air Act 

unless we determine that such action is '"arbitrary, capricious. 

an abuse of discretion, or otherwise not in accordance with 

Jaw." 42 U.S.C. § 7607(d)(9)(A). The EPA's interpretation of 

the Clean Air Act is reviewed under the familiar two-step 

framework of Chevron U.S.A.. Inc. v. Natural Resources 

D~fense Coundi, Inc., 467 U.S. 837 (1984), whereby we tirst 

look to the statute's language to determine if Congress has 

''directly spoken to the precise question at issue." !d. at 842. 

If Congress has directly spoken to the precise question. then we 

must "give effect to the unambiguously expressed intent of 

Congress." !d. at 843. If, however, "the statute is silent or 

ambiguous with respect to the specific issue," we defer to the 

EPA's interpretation of the Act so long as it ·'is based on a 

permissible construction of the statute." Jd 

Under those standards, we review in turn the crosspetitions of South Coast and the Environmental Petitioners. 

III. SOUTH COAST'S PETITION 

We begin with the simpler of the two petitions, that of 

South Coast. South Coast petitions this Court to invalidate the 

EPA's interpretation ofthc CAA in the Final Rule that "states 

may not take credit for VOC or NO, reductions occurring from 

sources outside the nonattainment area for purposes of meeting 

the 15 percent [rate-of-progress] and 3 percent [reasonable 

further progress] requirements.'' 80 Fed. Reg. at 12.273. South 

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Coast argues that the EPA was not required to interpret "in the 

area" in the context of the reasonable further progress 

requirement to mean ·'in the nonattainment area:· See 42 

U.S.C. § 751la(b)(I)(B). In promulgating the Final Rule. the 

EPA explained that in light of this Court's decision in NRDC 

2009. 571 F.3d at 1256, ·'there is no legal basis" for ·'allowing 

states to credit reductions achieved at sources outside the 

nonattainment area.'' 80 Fed. Reg. at 12.273. South Coast 

counters that our decision in NRDC 2009 docs not mandate the 

EPA's interpretation. Instead, South Coast contends that 

because downwind nonattainment areas are impacted by 

emissions trom upwind areas, the EPA could reasonably 

interpret ''in the area" in the context of the reasonable fUJ1hcr 

progress requirement to mean the ''transport couple area''-"a 

larger area consisting of the nonattainment area in question 

plus the upwind area from which emission reductions would be 

obtained.'' 

The text here is unambiguous. The Clean Air Act requires 

nonattainment areas that are classified as moderate or above to 

plan for ·'reasonable further progress'' measured from "baseline 

emissions/" ·which are defined as "the total amount of actual 

VOC or NO, emissions from all anthropogenic sources in the 

area during the" baseline year. 42 U.S.C. § 75lla(b)(l)(A), 

(b)(l)(B), (c)(2)(B). (d), (e). These statutory provisions refer 

to only one area, ·'the area.'' Further, the term appears in a 

section entitled "'tvlodcrate Areas,'' not a greater area. 

§ 75lla(b): sec also § 75ll(c)(l ). 

South Coast contends that limiting the phrase "in the area·' 

to nonattainmcnt areas would produce absurd results. 

According to South Coast, it may be impossible for certain 

areas to achieve the necessary emissions reductions. Where the 

purpose of the Clean Air Act is served by interpreting "in the 

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II 

area" to mean ''transport couple area,'' South Coast argues that 

the statutory language is ambiguous. 

However. the Clean Air Act provides for an alternative to 

reducing emissions of pollutants by tixed percentages. 

s 7511 a( b)(! )(A)(ii). (c)(2)(B). Nonattainmcnt areas may 

reduce emissions by less than 15 percent if they (I) implement 

controls on a broader range of new and existing stationary 

sources and (2) include in their SIP "all measures that can 

feasibly be implemented in the area, in light of technological 

achievability'' and ·'measures that are achieved in practice by 

sources in lhe same source category in nonattainment areas of 

the next higher category." § 7511a(b)( I )(A)(ii). Likewise. 

nonattainment areas may reduce emissions by less than three 

percent if the SIP "includes all measures that can feasibly he 

implemented in the area. in light of technological 

achicvability" and "measures that are achieved in practice by 

sources in the same source category in nonattainment areas of 

the next higher classitication.'' § 75lla(c)(2)(B)(ii). 

Moreover. states may also ask the EPA to approve new 

boundaries for air quality control regions. See 42 U.S.C, 

§ 7407(b)-(c). In light of the alternatives provided fi.1r in the 

Clean Air Act. South Coast has failed to meet the 

·'exceptionally high burden" required to demonstrate absurdity. 

Friends 4 Earlh. Inc. v. EPA. 446 F.3d 140, 146 (D.C. Cir. 

2006). 

Jn sum, considering the grammar and context of 

§ 7511a(b)(l)(B). we hold at Chevron step one that ·'in the 

area'' unambiguously refers to baseline emissions \Vithin the 

nonattainment area. Accordingly. we deny South Coast's 

petition. 

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IV. ENVIRONMENTAL PETITIONERS' 

PETITION 

Environmental Petitioners petition this Court to vacate 

several parts of the Pinal Rule. We take each challenge in turn. 

A. Waiver of Statutory Attainment Deadlines 

Associated with the 1997 NAAQS 

Environmental Petitioners seck to invalidate the Final 

Rule's revocation of the 1997 NAAQS. 80 Fed. Reg. at 12,296. 

They argue that by revoking the 1997 NAAQS. the Final Rule 

arbitrarily waives the obligation to attain the 1997 NAAQS by 

the statutory deadline. The EPA counters that the Clean Air 

Act authorizes revocation of a superseded NAAQS so long as 

adequate anti-backsliding measures are in place. 

We have already held that the EPA may revoke a previous 

NAAQS in full "so long as adequate anti-backsliding 

provisions are introduced."' South Coast, 472 F.3d at 899. But 

in the Final Rule, the EPA failed to introduce adequate antibacksliding provisions. 

Pursuant to the Clean Air Act, anti-backsliding provisions 

''shall provide for controls which are not less stringent than the 

controls applicable to areas designated nonattainmcnt before 

such relaxation."' 42 U.S.C. § 7502(c). Penalties for not 

meeting attainment deadlines such as fees and activation of 

contingency measures are unambiguously ·•controls'' because 

they are ''designed to constrain ozone pollution." South Coast, 

472 F.3d at 902-03. Likewise, reclassification is also a control 

because it is "designed to constrain ozone pollution.'' See id 

Areas that fail to timely attain are required to reclassify and be 

subject to more stringent emissions controls. 42 U.S.C. 

§§ 7511(b)(2), 751la(i). If the EPA were allowed to remove 

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the deadlines that trigger those penalties, "a state could go 

unpenalized without ever attaining'' theN AAQS. South Coast. 

472 F.3d at 902-03. 

The Pinal Rule provides that ''the EPA is required to 

determine whether an area attained the 1-hour or 1997 ozone 

NAAQS by the areas attainment date solely for antibacksliding purposes to address an applicable requirement for 

nonattainment contingency measures and CAA section 185 fcc 

programs." 80 Fed. Reg. at 12,315. But the Final Rule 

speci!ically waives the obligation ·'to reclassify an area to a 

higher classification for the 1997 ozone NAAQS" based on a 

failure to meet the 1997 NAAQS attainment deadlines. ld As 

a result, the Final Rule allows areas that fail to timely attain to 

avoid being subject to more stringent emissions controls. 

Therefore. the Final Rule relaxed the controls applicable to 

areas designated nonattainment under the 1997 NAAQS in 

contravention of the anti-backsliding requirement. 

Accordingly. we grant this pmi of Environmental Petitioners· 

petition and vacate the Final Rule as to the waived statutory 

attainment deadlines associated with the 1997 NAAQS. 

B. Removal of Anti-Backsliding Requirements 

for Areas Designated Nonattainment Under 

the 1997 NAAQS 

Environmental Petitioners also seck to invalidate other 

provisions of the Final Rule that they allege contravene the 

Clean Air Act's anti-hacksliding requirements. The Final Rule 

provides for three procedures by which areas designated 

nonatlainment under the 1997 NAAQS may remove certain 

anti-backsliding requirements and shift other requirements 

ti·01n the active p011ion of their SIPs to the contingency 

measures p01iion. RO Fed. Reg. at 12,299-12,304. 

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1. Orphan Nonattainment Areas 

The first procedure applies to areas designated attainment 

lor the 2008 NAAQS, but nonattaimnent for the 1947 NAAQS. 

!d. at 12,301-12.302. Environmental Petitioners refer to these 

areas as "orphan nonattainment areas." For orphan 

nonattainment areas, '·states are not required to adopt any 

outstanding applicable requirements tor the revoked 1997 

standard.'' Jd at 12.302. Under the Final Rule, orphan 

nonattainment areas "are not subject to transportation or 

general conformity requirements." Jd. at 12,300. In addition. 

orphan nonattainment areas are no longer required to retain 

New Source Review programs in their SIPs. Jd. at 12,299. 

Instead. these areas are subject to Prevention of Significant 

Deterioration ("PSD'') requirements. /d. States may also 

request that other anti-backsliding requirements be shifted to 

their list of contingency measures based on initial 2008 

designations. !d. at 12.314. Finally, the final Rule does not 

require orphan nonattainment ar~as to submit maintenance 

plans under !i 7505a, and deems the requirement for 

maintenance under § 741 O(a)( I) to be satisfied by the area's 

approved Prevention of Significant Deterioration SIP. !d. at 

12,302, 12,314. 

(a) Environmental Petitioners argue that elimination of 

New Source RevieVr and conformity in orphan nonat1ainmcnt 

areas violates the anti-backsliding requirements. The EPI\ 

argues that the Final Rule lawfully lifts the requirement for 

New Source Review and conformity for orphun nonattainment 

areas because the 2008 NAAQS is more stringent than the 1997 

NAI\QS. 1\ccording to the EPA. areas that have attained the 

2008 NAAQS have necessarily attained the 1997 NI\1\QS. 

This Court previously held that New Source Review is 

unambiguously a '·control'' under§ 7502(e). South Coasr. 472 

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F.3d at 901-02. Environmental Petitioners also contend that 

conformity is a "control" under§ 7502(e). The EPA does not 

address general cont(lrmity requirements, but argues that our 

decision in South Coast does not require transpmtation 

conformity as an anti-backsliding control. According to the 

EPA. in South Coast we held that only existing motor vehicle 

emissions budgets are required anti-backsliding controls, not 

the conhmnity requirement itself. 

The Final Rule provides that 1997 nonattainment areas arc 

··no longer . required to demonstrate transportation 

conformity for the 1997" NAAQS aller the 1997 NAAQS is 

revoked. 80 Fed. Reg. at 12.284. Pursuant to the Final Rule, 

"the latest approved or adequate emission budgets for a 

previous ozone NAAQS . would continue to be used in 

conformity determinations I(Jr the 2008 ozone NAAQS until 

emission budgets are established and found adequate or are 

approved fi.1r the 2008 ozone NAAQS." Jd. But the Final Rule 

provides that areas ·'designated attainment for the 2008 ozone 

NAAQS arc not subject to transpOJiation or general conformity 

requirements regardless of their designation for the I 997 ozone 

NAAQS at the time of revocation of that NAAQS.'' ld. at 

12.300. 

The EPA is correct that South Coast held only that ''onehour conformity emissions budgets constitute 'controls' under 

section 172(c)." 472 F.3d at 904. Fmthcrmorc, on rehearing, 

we clarified that our decision with respect to conformity 

determinations ·'speaks only to the use of one-hour motor 

vehicle emissions budgets as part of eight-hour conformity 

determinations until eight-hour motor vehicle emissions 

budgets are available.'' South Coast Air Qualitv Mgmt. Dist. v. 

EFA. 489 F.3d 1245, 1248 (D.C. Cir. 2007). But our decision 

that emissions budgets constitute controls does not preclude 

that •·conformity" requirements in general are controls. 

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Conformity requirements are designed to constrain ozone 

pollution as they have the "purpose of eliminating or reducing 

the severity and number of violations of the [NAAQS] and 

achieving expeditious attainment of such standards." 42 

U.S.C. § 7506(c)( I)(A). Therefore. contonnity requirements 

also are unambiguously ''controls" under§ 7502(c). 

Although orphan nonattainment areas were originally 

designated attainment under the 2008 NAAQS, they have 

never been redesignated to attainment pursuant to 

§ 7407(d)(3)(E) under the 1997 NAAQS. The EPA may not 

permit termination of New Source Review and conformity in 

the absence of t(mnal redesignation under § 7407(d)(3)(E). 

See Natural Res. Def Council v. EPA, 643 F.3d 311, 322-23 

(D.C. Cir. 20 II) (rejecting tina! rule that allowed attainment of 

the 1997 NAAQS to permit termination of the fees control for 

the one-hour NAAQS). As we stated in our prior Sowh Coast 

opinion, "EPA is required by statute to keep in place measures 

intended to constrain ozone levels-even the ones that apply to 

outdated standards-in order to prevent backsliding.'' South 

Coast. 472 F.3d at 905. Accordingly. we grant Environmental 

Petitioners' petition and vacate the Final Rule as to the removal 

of New Source Review and conformity controls from orphan 

nonattainment areas. 

(b) Environmental Petitioners argue that permitting states 

to shit\ other anti-backsliding requirements to contingency 

measures violates the Clean Air Act. The EPA responds that 

states must continue implementing all such measures in 

previously approved S[Ps unless the EPA approves requests to 

amend SIPs to convert such requirements into contingency 

measures. For the same reasons that the EPA may not permit 

states to eliminate New Source Review and transportation 

conformity. the EPA also may not permit states to shift other 

anti-backsliding requirements to their list of contingency 

ADD-18 
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17 

measures witholll complying with the statutory requirements 

for redesignation. Therefore, we grant Environmental 

Petitioners' petition and vacate the Final Rule as to permitting 

states to move anti-backsliding requirements for orphan 

nonattainment areas to their list of contingency measures based 

on initial 2008 designations. 

(c) Likewise, without requiring nonattainment areas to 

meet the requirements for reattainmcnt under § 7407(d)(3)(E), 

the EPA improperly waived the requirement that states adopt 

outstanding applicable requirements for the revoked 1997 

NAAQS. Therefore, we gran\ Environmental Petitioners' 

petition and vacate the Final Rule as to waiving the requirement 

that states adopt outstanding applicable requirements for the 

revoked 1997 NAAQS. 

(d) Environmental Petitioners argue that the Final Rule 

impermissibly waives the maintenance requirements under 

§ 7410(a)(l) for orphan nonattainment areas. The Final Rule 

allows approved Prevention of Significant Deterioration SIPs 

to satisfy the obligation to submit a maintenance plan under 

~ 7410(a)(l). 80 Fed. Reg. at 12.302. Prevention of 

Significant Deterioration SIPs bar the construction of major 

sources of emissions without compliance with ce11ain statutory 

requirements. See~ 7475(a). 

The Final Rule also docs not require orphan nonattainmcnt 

areas to submit a maintenance plan under ~ 7505a. 80 Fed. 

Reg. at 12.302. The EPA contends that there is no statutory 

requirement for a separate maintenance plan for orphan 

nonattainment areas. However, one of the five requirements 

for redcsignation under § 7407(d)(3)(E) is that the EPA 

"approve[] a maintenance plan for the area as meeting the 

requirements of section 7505a of this title." 

§ 7407(d)(3)(E)(iv). Therefore. the Final Rule is inconsistent 

ADD-19 
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18 

with the clear text of§ 7407(d)(3)(E) in waiving the§ 7505a(a) 

maintenance plan requirement for orphan nonattainment areas. 

Environmental Petitioners also appear to contend that even 

with a § 7505a maintenance plan, the Final Rule would violate 

the maintenance requirement under § 741 O(a)( l) because 

§ 7410(a)(l) requires something more than a Prevention of 

Significant Deterioration SIP and a§ 7505a maintenance plan. 

Specifically, Environmental Petitioners argue that a SIP for an 

orphan nonattainmcnt area must include a plan to ensure that 

pollution from existing sources and new sources not subject to 

the PSD requirements does not cause those areas to fall into 

violation of the 2008 NAAQS. According to Environmental 

Petitioners. without such safeguards. existing measures have 

proved insufncient to provide for continuing attainment of the 

2008 NAAQS. 

Section 7410(a)(l) provides that SIPs must provide for 

··implementation. maintenance, and enforcement" of the 

NAAQS. The statute clearly requires •·maintenance" 

provisions to be included in SIPs, but the statute docs not 

require a separate SIP component entitled ·'maintenance plan." 

In fact. the statute provides no guidance for "·hat SIPs must 

include in order to comply with the§ 7410(a)(l) maintenance 

requirement beyond the criteria laid out in § 7410(a)(2). 

Environmental Petitioners do not allege the agency has 

eliminated § 7410(a)(2)'s requirements. Therefore, the Final 

Rule will be upheld so long as it is neither unreasonable nor 

arbitrary. 

The EPA justified the rule by explaining that a § 7471 

·'PSD SIP, in conjunction with the other already-existing 

statutory and regulatory provisions ... are generally suffu~icnt 

to prevent backsliding, and to satisfy the requirement for 

maintenance under'' § 7410(a)(l). 80 Fed. Reg. at 12.302. 

ADD-20 
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30463.366

ol I 

19 

According to the EPA, the "control measures implemented by 

these areas and included in their SIPs have already produced 

sufticient emissions reductions to achieve air quality that 

attained the 1997 ozone NAAQS, and resulted in an attainment 

designation for the more stringent 2008 ozone NAAQS." !d 

The EPA therefore concluded that "the burden of developing 

an approvable [§ 74!0(a)(l)J maintenance plan for the 2008 

ozone NAAQS would outweigh any compensating benefit for 

an area that is already attaining that NAAQS and that is subject 

to prior nonattainment requirements which are already 

incorporated into the SJP and have been sufficient to bring the 

area into attainment of both the 1997 and 2008 standards." ld 

The EPA adequately explained why measures that 

achieved attainment of both the 1997 NAAQS and the 2008 

NAAQS should be adequate to maintain the same 2008 

NAAQS that has already been attained. The EPA also 

thoughtfully responded to comments that suggested the 

measures on which the EPA relics arc insufficient to satisfy the 

§ 74IO(a)(l) maintenance requirement. Under these 

circumstances, the EPA's determination is neither 

unreasonable nor arbitrary. 

Environmental Petitioners contend that the EPA has not 

addressed comments that identified examples of orphan 

nonattainment areas that purportedly were in fbct not attaining 

the 2008 NAAQS. These comments were not raised in regard 

to the § 7410(a)(l) maintenance requirement. Instead, they 

appear to have been raised in response to other alleged 

shortcomings with the proposed rule. Moreover, the EPA 

appears to have addressed those arguments in its response to 

comments. Response to Comments on Implementation of the 

2008 NAAQS for Ozone: SIP Requirements (Feb. !3, 20 15) at 

133. In any event, the comments are directed toward 

enforcement issues with the current NAAQS, not issues with 

ADD-21 
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30463.367

20 

the underlying rule. Accordingly. lhe EPA's decision not to 

implement a separate § 741 O(a) maintenance plan is neither 

arbitrary nor unreasonable. 

Therefore, we grant Environmental Petitioners· petition 

and vacate the Final Rule with respect lo the EPA's waiving of 

the § 7505a(a) maintenance plan requirement for orphan 

nonattainment areas~ and we deny Environmental Petitioners' 

petition with respect to the § 7410(a)(l) maintenance 

requirement's application to orphan nonattainment areas in 

other respects. 

2. Formal Redesiguatiou 

The second procedure by which areas designated 

nonaltainment under the 1997 NAAQS may remove certain 

anti-backsliding requirements and shifi other requirements 

from the active pa11 of their SIPs to the contingency measures 

part involves areas designated nonattainment under both the 

2008 NAAQS and the !997 NAAQS. 80 Fed. Reg. at 12,303-

04. The Final Rule allows states to seek formal redcsignation 

to attainment based on the 2008 NAAQS with an approved 

maintenance pl"n that addresses the current and revoked 

NAAQS. !d. at 12,304. Under this procedure, states may 

terminate and remove any applicable anti-backsliding 

requirements. including N~w Source Review requirements. 

trom the active part of their SIPs. !d. 

The EPA properly subjected these areas to antibacksliding requirements when the 1997 NAAQS was revoked 

because they were still in nonattainmcnt at the time of 

revocation. See§ 7502(c). The Act is ambiguous as to whether 

such areas must retain these anti-backsliding requirements after 

they are successfully redesignated as attainment areas under the 

2008 NAAQS. Unlike orphan nonattainment areas. these areas 

ADD-22 
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21 

have met the statutory requirements for redesignation under 

~ 7407( d)(3 )(E). Therefore, these areas have shown, f(x 

example. that .. thefir] improvement in air quality is due to 

permanent and enforceable reductions in emissions resulting 

from implementation of the applicable implementation plan.'' 

~ 7407(d)(3)(E)(iii). Although these areas may not have been 

redesignated with respect to the 1997 NAAQS, by meeting the 

statutory requirements tor rcdcsignation with respect to the 

2008 NAAQS, they necessarily also meet the less restrictive 

requirements lor redesignation under the 1997 NAAQS. 

Accordingly. it is reasonable lor these areas to shed their antibacksliding controls by virtue of meeting the five statutory 

criteria tor redesignation. Theretore, we deny Environmental 

Petitioners' petition with respect to this aspect of the Final 

Rule. 

3. Redesignation Substitute 

The third procedure by which areas designated 

nonattainment under the 1997 NAAQS may remove certain 

anti-backsliding requirements and shill other requirements 

from the active part of their SIPs to tbe contingency measures 

part also involves areas designated nonattainment under both 

the 2008 NAAQS and the 1997 NAAQS. This procedure 

allows states '·to submit a redesignation substitute request for a 

revoked NAi\QS.'' 80 Fed. Reg. at 12,304. The redesignation 

substitute request "is based on" the Clean Air Act's "criteria 

tor redesignation to attainment'' under§ 7407(d)(3)(E). 80 Fed. 

Reg. at 12,305. but it does not require lull compliance with all 

live conditions in ~ 7407(d)(3)(E). The Clean Air Act 

unambiguously requires nonattainment areas to satisfy all five 

of the conditions under§ 7407(d)(3)(E) before they may shed 

controls associated with their nonattainment designation. The 

redesignation substitute lacks the following requirements of 

~ 7407(d)(3)(E): (1) the EPA has "fully approved" the 

i\DD-23 
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22 

§ 7410(k) implementation plan; (2) the area's maintenance 

plan satisfies all the requirements under § 7505a: and (3) the 

state has met all relevant§ 7410 requirements. 80 Fed. Reg. at 

12,305. Because the ·'redesignation substitute" does not 

include all live statutory requirements, it violates the Clean Air 

Act. Therefore. we grant Environmental Petitioners' petition 

and vacate the Final Rule as to the "redesignation substitute.•· 

C. Baseline Year 

The Clean Air Act measures Reasonable Further Progress 

by using a baseline year as the starting point. Nonattainment 

areas must reduce emissions of pollutants by fixed percentages 

compared to the pollutant level in a baseline year. 42 U.S.C. 

§ 75lla(b)(I)(A), (B). The initial baseline year under the 

statute is 1990, id., but the statute does not detine baseline years 

tor future NAAQS. In the Final Rule, the EPA detined the 

baseline year as 201 L which is the ''calendar year for the most 

recently available triennial emission inventory at the time [rateot:progress/reasonable further progress] plans are developed." 

80 Fed. Reg. at 12,272. The Final Rule also allows states to 

select an alternative baseline year between 2008 and 2012 if 

they provide appropriate justification. ld. 

Environmental Petitioners argue that this rule is unlawful 

because the Clean Air Act requires the baseline year to be the 

year of designation/classification, which in the case of the 2008 

NAAQS is 2012. While an initial baseline year of 1990 is 

specified by statute, the Clean Air Act is silent regarding future 

baseline years. There!ore, this question is governed by 

Chevron step two. The Reasonable Fm1her Progress 

requirement ensures that slates make regular emissions 

reductions to achieve timely attainment. See § 75lla. To 

monitor their progress in achieving regular emissions 

reductions, states are required to prepare an emissions 

ADD-24 
403 


30463.370

23 

inventory every three years. § 75lla(a)(3)(A). The EPA's 

selection of2011 as the baseline year is reasonable because it 

is tied to the three-year statutory cycle for emissions 

inventories. !d. Therefore, we deny Environmental 

Petitioners· challenge to the setting of 2011 as the baseline 

year. 

With respect to selection of an alternative baseline year 

between 2008 and 2012. the EPA has failed to provide a 

statutory justification. The ''EPA must 'ground its reasons tor 

action or inaction in the statute,· rather than on 'reasoning 

divorced from the statutory text."' Natural Res. Del Council 

v. EPA (NRDC 2014), 777 F.3d 456. 468 (D.C. Cir. 2014) 

(quoting Utility Air Regulatory Grp. v. EPA. 134 S. Ct. 2427, 

2441 (2014)). The EPA based its creation of the alternative 

baseline year option on the convenience of allowing 

nonattainment areas to receive credit for emissions reduction 

measures adopted prior to the baseline year. Because the EPA 

has no statutory basis for the alternative basdine year 

provision, we grant Environmental Petitioners' petition and 

vacate the Final Rule as to the alternative baseline year option. 

D. Fifteen-Percent Rule 

The Clean Air Act requires an area in a moderate or greater 

degree of nonattainmcnt to reduce emissions of VOCs by 

tltleen percent within six years of the baseline year. 42 U.S.C. 

~ 75lla(b)(I)(A). The Final Rule interprets this requirement 

as meaning that "an area that has already met the 15 percent 

requirement for VOC under either the !-hour ozone NAAQS 

or the 1997 ozone NAAQS (tor the first 6 years after the 

[reasonable further progress] baseline year tor the prior ozone 

NAAQS) would not have to fultill that requirement again.'' 80 

Fed. Reg. at 12,271: see also id. at 12,276. The Environmental 

Petitioners argue that the rule is unlawfi.il because the 

ADD-25 
404 


30463.371

24 

interpretation allows areas to avoid actually achieving 

emissions reductions to satisfy the fifteen-percent requirement. 

The Final Rule does not require nonattainment areas that 

have previously revised their SIPs to address the Clean Air 

Act's fifteen-percent requirement to revise their SIPs again. If 

an area fails to achieve this reduction according to their plan, a 

petitioner may tile for injunctive relief or the EPA may pursue 

an enforcement action. Environmental Petitioners argue that 

the Final Rule allows nonattainment areas to omit the tiftccnperccnt requirement even if they never previously achieved a 

fitteen-percent reduction. The EPA has represented that the 

provision at issue in this case is the same as that at issue in 

NRDC 21109. 571 F.3d 1245. ln NRDC 21109. the EPA rule 

allowed areas that had revised their SIPs to include a fitlecnpercent VOC emissions reduction to not be subjected to a 

second fitlecn-percent requirement under the new NAAQS. ld 

at 1261. We held that "the EPA reasonably resolved a statutory 

ambiguity under step 2 of the fi·amework set out in Chevron." 

Jd at 1262. We accept the EPA's representation that the 

tit!een-pcrcent requirement in the Final Rule is the same as the 

provision at issue in NRDC 2009. Therefore, because the 

EPA's interpretation is permissible, we deny Environmental 

Petitioners' challenge to the fiticen-percent reduction plan 

waiver. 

E. Area-Wide Emissions Reductions 

The Clean Air Act requires nonattainment areas to achieve 

:·such reductions in emissions from existing sources in the 

area'' as can be achieved by the adoption of Reasonably 

Available Control Technology ("RACT''). 42 U.S.C. 

s 7502(c)(l). The Pinal Rule allows nonattainment areas to 

satisfy the NO, RACT requirement by using averaged areawide emissions reductions. 80 Ped. Reg. at 12,278-79. Thus. 

ADD-26 
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30463.372

25 

'·states may demonstrate as part of their NO, RACT SIP 

submittal that the weighted average NO, emission rate from all 

sources in the nonattainment area subject to RACT meets NO, 

RACT requirements." [d. at 12,278. Environmental 

Petitioners argue that this rule violates the clear terms of the 

Clean Air Act, which require each individual source to meet 

the NO, RACT requirement. 

They contend that ~ 7511a(b)(2) requires implementation 

of RACT with respect to "all" major sources, and ·'all" means 

"each one of." Section 75 I la(b)(2) requires states to submit 

revisions to SIPs ·'to include provisions to require the 

implementation of reasonably available control technology 

under section 7502(c)(l) ofthis title with respect to each of' 

three spccitic categories of VOC sources, including "all 

major stationarv sources of VOCs that are located in the area.,. 

Pu;·suant to§ iSlln(f), that plan provision applies to "major 

stationary sources'' of NO,. Section 75lla(b)(2) refers to ''all" 

··major stationary sources" and requires implementation of 

RACT "with respect to'' that entire category of sources. The 

statute does not speci1Y that "each one of· the individual 

sources within the category of ·'all" "m[\ior sources" must 

implement RACT. Environmental Petitioners argue that the 

only reasonable dictionary detinition of"all'' when used with a 

plural noun (major stationary sources) is '·each one of'' 

Instead. when used to rcferto a plural noun, the word "all" may 

express an aggregate and be defined as the ''whole number or 

sum of." Black ·s Law Dictionary 74 (6th ed. 1990). This 

detinition is consistent with the categorical approach taken by 

the EPA. ln shoJi, the plain language-in the context of the 

interrelationship between §§ 7511a(b)(2) and 7502(c)( 1 )--

docs not mandate RACT for each individual source. 

Therefore. as discussed above, we cannot strike down the 

EPA's reasoned interpretation of the ambiguous term at 

ADD-27 
406 


30463.373

26 

ChePron step one, see Section II, supra. We must instead 

uphold the EPA's interpretation, provided it is reasonable. 

under Chevron step two. See Chevron. 467 U.S. at R42-43. 

We tl1rthcr note that§ 7511a(bl(2) refers to§ 7502(c)(l), 

which provides that SIP "provisions shall provide for the 

implementation of all reasonably available control measures as 

expeditiously as practicable (including such reductions in 

emissions from existing sources in the area as may be obtained 

through the adoption. at a minimum. of reasonably available 

control technology)." § 7502(c)(l). Section 7502(c)(l) does 

not require reductions from each individual major source. 

Instead. it requires "reductions in emissions from existing 

sources in the area.'' and other than mandating that 

implementation be as "expeditious[] as practicable,'' the 

section is ambiguous as to how areas are required to achieve 

those reductions. 

The EPA's interpretation reasonably allows nonattainment 

areas to meet RACT-level emissions requirements through 

averaging within a nonattainmcnt area. Therefore. we deny 

Environmental Petitioners' petition as to the EPA's 

construction of the RACT requirement. 

F. Waiving Requirements for Areas Designated 

Maintenance Under the 1997 NAAQS 

Environmental Petitioners seek to have us invalidate 

several provisions of the Final Rule that apply to areas 

designated attainment for the 2008 NAAQS alter being 

designated maintenance areas under the 1997 NAAQS 

("orphan maintenance areas''). 

ADD-28 
407 


30463.374

27 

I. Elimination of Transportation 

Conformity 

As with orphan nonattainmcnt areas, the l'inal Rule 

declares that orphan maintenance areas arc ··no longer ... 

required to demonstrate transportation conformity for the !997 

ozone NAAQS al1er the 1997 ozone NAAQS is revoked:· 80 

Fed. Reg. at 12.284. Environmental Petitioners argue that the 

elimination of transportation conformity in orphan 

maintenance areas violates the Clean Air Act. Section 

7506(c)(5) provides that conformity requirements apply to 

"'(A) a nonattainment area and each pollutant lor which the area 

is designated as a nonattainment area; and (B) an area that was 

designated as a nonattainmenl area but that was later 

redesignated ... as an attainment area and that is required to 

develop a maintenance plan under section 7505a." 

We previously explained that the EPA lacks the authority 

to revoke transportation conformity for orphan nonattainment 

areas. See Section IV.B.l(a), supra. The EPA argues that it 

is permitted to remove conformity requirements lor orphan 

maintenance areas because such areas became attainment areas 

lor the t 997 NAAQS prior to the date on v.hich it" as revoked. 

As a result, the EPA argues that these areas are not subject to 

anti-backsliding requirements, so there is no statutory 

requirement that they maintain the transportation conformity 

requirement. We disagree. 

In contrast to nonattainmcnt areas, which § 7506(c)(5) 

references by their status as ~·nonattainment arealsJ," 

maintenance areas arc referenced by previous events: ""an area 

that H'as designated as a nonattainmcnt area but that was later 

redesignated ... as an attainment area and that is required to 

develop a maintenance plan under section 7505a."' 

§ 7506(c)(5) (emphases added). Although the Final Rule 

i\DD-29 
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28 

revoked the 1997 NAAQS, it cannot revoke the statutory status 

of orphan maintenance areas. Even aller revocation of the 

1997 NAAQS, an orphan maintenance area is "an area that was 

designated as a nonattainment area hut that was later 

redesignated ... as an attainment area." 

H is irrelevant that this previous designation and 

redesignation occurred before the prior N AAQS was revoked 

because nothing in the Clean Air Act allows the EP !\ to waive 

this unambiguous statutory requirement Moreover, the Act 

clearly contemplates new NAAQS being promulgated within 

ten years of an at·ea 1S redesignation to attainment because the 

statute requires the EPA to review NAAQS every five years 

and to "promulgate such new standards as may be appropriate." 

§ 7409(d)( I). Therefore. the revocation of the 1997 NAAQS 

does not waive the unambiguous mandate that confOrmity 

requirements apply to orphan maintenance areas. Accordingly, 

we grant Environmental Petitioners' petition as to the 

elimination of transportation conformity in orphan 

maintenance areas. 

2. Section 7410(a)(l) Maintenance Planning 

Requirement 

Environmental Petitioners contend that the Final Rule 

unlawfully waives the § 7410(a)(l) maintenance planning 

requirement for the 2008 NAAQS. 80 Fed. Reg. at 12.301. 

The Final Rule provides that an orphan maintenance area's 

§ 7505a(a) maintenance plan lor the revoked 1997 NAAQS 

and the state's approved Prevention of Significant 

Deterioration SIP satisfy the area's obligations for maintenance 

of the 2008 NAAQS under§ 7410(a)(l) of the Clean Air Act. 

80 Fed. Reg. at 12.30!, 12,314. Environmental Petitioners 

argue the Prevention ofSigni It cant Deterioration SIP is the sole 

maintenance plan requirement lor the 2008 NAAQS, and it 

ADD-30 
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29 

only addresses pollution from very large sources. According 

to Environmental Petitioners. the EPA has no statutory 

authority to waive the ii 741 O(a)( I) maintenance requirement. 

The EPA justified its rule on the ground that orphan 

maintenance areas have already been redesignated to 

attainment for the 1997 NAAQS and designated attainment for 

the more stringent 2008 NAAQS. 80 Fed. Reg. at 12.30 I. 

According to the EPA, ·'[a]ny further [§ 7410(a)(l)] 

maintenance plan requirement under the 2008 . . NAAQS 

would be unnecessarily burdensome.'' !d. Although the 

§ 7505a(a) maintenance plans for orphan maintenance areas 

"were established for maintenance of the 1997 ... 

NAAQS, ... they also provide a f(mndation f(lr maintenance 

of the 2008 ... NAAQS. which. in combination with other 

active requirements for the 2008 ozone NAAQS, contribute to 

maintenance of the new standard." !d. The Final Rule 

explained that "no additional measures beyond the prior 

[§ 7505a(a)) maintenance plans and the PSD plans for the 2008 

[NAAQS] should be necessary to provide for maintenance in 

those areas ... Id 

We previously addressed the alleged waiver of the 

§ 7410(a)(l) maintenance requirement with respect to orphan 

nonattainmcnt areas. See Section !V.B.I (d), supra. As we 

explained. ~ 741 O(a)( I) does not provide clear requirements as 

to what SIPs must include in order to comply with the 

§ 74! O(a)( I) maintenance requirement beyond the criteria laid 

out in§ 741 O(a)(2). As with orphan nonattainment areas. with 

respect to orphan maintenance areas, the EPA adequately 

explained why no additional measures beyond the § 7505a(a) 

maintenance plans and the Prevention of Significant 

Deterioration plans for the 2008 NAAQS are necessary to 

provide for maintenance of the 2008 NAAQS. Therefore. we 

deny Environmental Petitioners' petition with respect to the 

ADD-31 
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30463.377

30 

§ 7410(a)(l) maintenance requirement's application to 

·'orphan maintenance areas." 

3. Elimination of Second Maintenance Plan 

Environmental Petitioners challenge the Final Rules 

elimination of the requirement that orphan maintenance areas 

prepare a second maintenance plan under§ 7505a(b). 80 Fed. 

Reg. at 12.30 l. Section 7505a(b) provides that "8 years after 

rcdcsignation of any area as an attainment area,'' states "'shall 

submit ... an additional revision of the" maintenance plan ·•ror 

I 0 years after the expiration of the 1 0-year period referred to in 

subsection (a)." The EPA argues that the requirement t(lr a 

second I 0-year maintenance plan is based on an area ·s 

designation status under an operative NAAQS. When the !997 

NAAQS was revoked. the orphan maintenance areas' 

designations as maintenance under the 1997 NAAQS were 

revoked as welL 

The statutory requirement for a second maintenance pbn 

is unambiguous. § 7505a(b). And the Clean Air Act clearly 

contemplates new NAAQS being promulgated within eight 

years of an area's redesignation to attainment because the 

statute requires the EPA to review NAAQS every five years 

and to ·'promulgate such new standards as may be appropriate." 

~ 7409(d)(l). Therefore. the revocation of the old NAAQS 

docs not waive the unambiguous requirement for second 

maintenance plans under § 7505a(b). Accordingly. we grant 

Environmental Petitioners' petition and vacate the Final Rule 

provision waiving the second I 0-year maintenance plan for 

··orphan maintenance areas.'' 

ADD-32 
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3 I 

V. Conclusion 

For the reasons set ltwth above. we deny South Coast's 

petition for review and grant in part and deny in part the 

Environmental Petitioners' petition. Specifically, we grant 

Environmental Petitioners' petition and vacate as to ( 1) waiver 

of the statutory attainment deadlines associated with the 1997 

NAAQS; (2) removal of New Source Review and conformity 

controls fi·om orphan nonattaimnent areas; (3) grant of 

permission to states to move anti-backsliding requirements for 

orphan nonattainment areas to their list of contingency 

measures based on initial 2008 designations; ( 4) waiver of the 

requirement that states adopt outstanding applicable 

requirements for the revoked 1997 NAAQS; (5) waiver of the 

~ 7505a(a) maintenance plan requirement tor orphan 

nonattainment areas; (6) creation of the ·'redesignation 

substitute"; (7) creation of an alternative baseline year option; 

(8) elimination of transportation conformity in orphan 

maintenance areas; and (9) waiver of the requirement for a 

second I 0-year maintenance plan for orphan maintenance 

areas. In all other respects, Environmental Petitioners· petition 

is denied. 

So ordered. 

ADD-33 
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30463.379

IN THE UNITED STATES COUZT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Sierra Club. et al., 

) 

Petitioners, ) 

) 

v. ) No. !5-1123 

~: I 

) (consolidated with 15-1 I I 5) 

United States !Cnviromnental Protection Agency, ) 

<!t a!.. ) 

Respondent. ) 

~--~-,·--··-----,--·------·-) 

DECLARATION OF WILLIAM WEHRUM 

I, I, \'Cilliam L. \\'ehrum. under penaln· of pcrjun·. aftirm ;ltld declare 

that the following statement,; arc true and corrcCI t<J the hest o( my knowledge and 

belief and an: h::1sed on 1ny O\Vn personal knowledge or on int()rn1ation ~upplied to 

me bv L'nitcd :;rate,; l'.!l\'ironmenta! Protection .\"'CillT ("1-:!'X') c·mplmec·,; under 

rny' supctTJ;o;.totL 

<'"() \R") at!·:!'\. a po,;ition I have held ,;incc :\o,Tmber L>. 21117. Pn:,iou,;h-1 

to 2007, a,; well a,; l'rincipallkpur1· \,;oi,;t:rnt ,\dmini>traror and Coun,;el tn the 

''"""'" \dministrator for .\ir and Radiatimr from 21lOl to 2\lil.'i. 

ADD-34 
413 


30463.380

.1. 0.\R i;; the Fl'.\ onicc that dcn·lops national programs, technical 

policies, and regulations t<>r comrolling air pollution. () \lfs assignments include 

protccnng public health and welfare. pollution pren•ntion, and air <JualitT and 

addressing air pollution irnpans of industrial air pollution, pollution from Ychidcs 

and cng111cs, tOXIC ;tir pollutants, acid rain, stratospheric ozone Ucplction, am! 

dim<~tc change. 

·L ( lf particular rde,·ancc to rhc ahon··caprioncd ca,;c, ( l. \R is the office 

witlun I ·:1' \ that is primarily rc,;pon:dhlc for the dcn·lopmem and implemcll!ation 

of regulations, polic\, and gmdancc as,:ociatcd with national ambient air qualitY 

standards("\..\ \(2:;") under tlw Clean .\ir .\ct ("< · \ \ "\ tnduding implementation 

of the \..\.\(j~. 

~. .\cconhngh'. I am proYiding thi> declaration tn explain I Y.\'s analv'is of 

the impacts of the ( :onrr\ vacatur of certain fH'm·i,:ions of the :200il Ozone :;rp 

Recruircmcnt> Rule. :;pccillcalk this dcchtrarion explains the impacts of tlw ( :mtrt's 

\':lCHnr of the l{uk with respect rn: 

i,c., areas. that were designated non:ltt<tinn1l'tH for the 1997 standard~ han_· not been 

t~nn1ally rcdc~lp:natcd to attaintncnr for that ::>tandard, but \\TIT designated anaintnent 

lc>r the 20t lil standarcL and the trall'JV>rtation cont(mnitY re<Jllircmcnt in"( )rphan 

\lainrcnancc .\rca,;:· i.e., areas that \\TtT tnitialh· dc>ignatcd nonatraimncnt for the 

19')7 >tandant were later formally rccksigmttcd to atTainment !(n· rlw I ')97 standard, 

ADD-35 
414 


30463.381

and met the rc<juircmcnr to han· a maintenance plan ((n· that :<tantbu·d undn :<n:tion 

175.\ of the .\ct. ;md additionallv w<:rc duignatcd awrinmcnt tr>r the 200K :<tandanL 

6. Immediate vacatur of the><' provision> upon i»uancc oF the mamhnc will 

CHI~C s!gniflcant gap;-; in the ,\gency~~ irnpletncntation structure and \\·j}J lnjure sutc 

ttnd local planning organizations and regulated cnritic:; that were in accordann· 

with and good-faith reliance on the Sll' Rcquiremc·nt:< Hulc .. \remand of the SIP 

Re<juircment,; Ruk ,,·irhom \'tlGHur willttllow the. \gcncv time w implement the 

effect::' of 1hc clect!'ion and (lii:'cs:-; wh<lt pohcy changes -arc nccc~sary (lr advisable in 

light of rhe decision; to prO\·ide guidance to affected agencic:<, mcludtng fcdcrat :<tate, 

local. ;md trih;tl air agC'ncic:; and regulated cnrities; and to provide adequate planninp: 

time to tho>c cnrinco. 

7 There arc 69 Oq,han \faimcnancc .\rca> .. \s shown in 111<' Table,; 1 and 

2, ()3 of these areas are con1plcte ()q-,han \laintcnanc(· \rcas nnd 6 of lhc<'c areas an: 

panial ( )rphtHl "\faintcn:ancc ,\rca~----~parriar' tncaning only certain countic:'- \Vithln 

the I'Ji)- e>7onc "..\.\l~S maintenance area were dc:;ignatcd attainmcm k>r the 200~ 

ozt >tll' ". .\, \C~S. whik the remainder of the area w:t> dc:<ignatcd a,; non:ttminmcnt t<Jr 

the 2llllS wonc 0\.\.\(~S. 

\nah·sis in this .<cction is h:t:<cd on information that i> publici\ aY:tilahlc on F.P.\',; 

"C,;rcen Book., wcbpagc (http:;:/ /\\ww.cp:t.g<>\' /green-hook;. 

ADD-36 
415 


30463.382

1997 Ozon~NAAQS Area Name 

.\ll':cgan <:own;· 

\ltnona 

Beaumont-!'orr 

Benton llarhor 

~~~;ie Count) 

: l?:~~-~l;rmstlcld .. 

Dctroit-.\nn .\rhor 

Door{ 

!·:ric 

I :.vanS\·illc 

. !·linr 

!'on \\'a nrc 

Franklin ( :ourm 

,_1 redt:t:J<:J-:;hurg 

, ( ;rand_Rar.rds 

( ;rccnc ( :nun1\ ,--~. ~ 

: ( ;r-cem· ( :ouniY ._, ~-" 

llancock, Knox, l.incoln and \\.aldo ( :nuntics 

:.llarrtsl>_r~rg} .ehanon ( :arli,lc 

. II_urrnngton . \shland 

fluron c:ountr· 

I ndrar1apolis 

_jackstln( 

Jr>hnst<>wn~ 

Kai:rm>tZilo-Balllv (:reck 

ADD-37 

State 

\II 

1\: 

\II 

]\: 

1'.\ 

\IF. 
416 


30463.383

\lurra\' CcnHll\' , ___ ------ "--~--~---~- . ..__ 

:"or_t(,Jk\ ng~lt"_IJ<:ll~J:""WI'~'rl >c\\:< (I 

P_;Jrk_<;y>IJ U!J!: -~!a rict1:1_ 

Portland 

:lial<:igh --I )t~:lla-t;;:~~~5Jj @ _ _ 1\ichmond-l'nersburg __ _ 

_ Rocky \lount __ 

I :-;cram on-\\-ilkc,;- Barre 

t::;;;~;tll jj~:,~;t~I~lkll!;;:;--

ADD-38 

\!C 
417 


30463.384

1997 Ozone 

NAAQSArea 

Name 

.\tlanta 

: Charlotte-

( iasronia- Rock 

!Jill 

II 

: Parts of t:abarrus, ( iaston, l jncoln. Rowan and l'nion 

' Counties in \:<. and part of y, •rk ( :nunty, SC 

( :.tncinnarillamilton f\:~~PartS<Jfll<><>ne,f :ampbdland Kcnl<>n ( ;,,unti~".I~r-~-::y 

lcffcrson. Loudon and Sevier parr of \ndcrwn 

, .( :ountv and_part of ( :ockc Counrl 

cr~tit~::m~:;-,~Tth-~h~-~:~-~;:pr~;,;~ of thc·e~tstcrn part 

I--:cnmha C:omm· 

R Thcrt: are 13 Orphan \:orwttainmcnt . \rc:rs .. \s shown in Tables 3 ami 

·L 'l of thc:<c an·a,; arc complete ( lf1>han \:onanainmcnt . \rcas and -1 of these areas arc 

partial ( lrph:ln \:on:Htaimncnr .\ rcns--· "part in!" meaning only ccnnin counties within 

tlw I'J'J 7 t>zom· \:.\.\QS nonattainmcnl area were dcsignat.:d attainment for tlw 2008 

o:~~me \i, \.\<)S, \\·hilc 1 he rl'tnainder of rhc ar('a \Vas de~ignatcd ;t~ nonatrainrnent for 

the 2001:\ wonc \: \ \(lS. 

ADD-39 
418 


30463.385

.}~97 07;()ne NAAQ~i\~~~Name St-~t~ i\x1ithin t~he OTR?2 ! 

\:Y Yes 

Table 4: l'anial C lrpban '<•mattainnwnr \rcas 

~-·12.2.7Q:wnc NA.AQS Area Name 

Bns.ton~I ,;t\\'fl'nce-\\'orn:st<.:r (l·:astern 

\lass) . ·- -····--· .. . \mador and ( :aL!wras ( ;,;unucs (Central 

\loumain C :ountic,;) 

~\!;~posa ancl 'l'uol~unnc ( :munics 

.(~~~~~_!~~~~·n \l(),l~-~~-~t1~: ( :()~~-~~!i_~_~1 

Within 

tlw 

OTR? 

Orphan 

Portion of the 

Area 

· If an are:t is Hl the ozone transport region I( lTR) under C: \.\ section I K-.1. -.12 l·.:;.<. 

7~ II c, it is subject to certain minimum statutorily dl'llncd control technolog:· and 

rHHlaltainrnenr pl'nnirting n·c:.1uircn1cnt~ n:gardlcs;\ ilf lt:-. designati(Hl and cla:-:;:-;itl:catioll 

:'t<tlU::'. 

J\DD-40 
419 


30463.386

lrnpact:-:: Related to Tntn:-:ponatiou ( :onfoJ:nril}: 

9. J.:l'.\ l~;tS i>Sued rqr,nlatiom to implement the transponarion cont(>rmiry 

requirement:< contained in :.:ccrion 176(c) ot'rhc Clean .\ir .\ct. Sec 40 C. FR. pan 9.1. 

In (':l'lll'ral. rhosc rcgnLmon,; rCtjUirc both:! l i area:< designated as nonarrainmcnt: ami 

(2; an·a;-; n:dc:-;ignatcJ fron1 nonattainnwnt to allaintnent and rcqulrnl, a~ a l"t)nd1t1on 

l>f rcde:<igmttion. I<> ha\'c an approved maintenance pbn und<:r :.:ccrion I 73.\ of the 

\ct (cotnn1onl}· referred tu as "'tnmntcnancc areas''), 1nu~1 dctnon~trate that 

rransponation plan:<. tran:;portarion impron:mcnr program:< (TIP:<). and 

tr;HJ:<pnnarion proicTts "conform ro'' the applicable Sll>. Tlw rq>;ulations also 

describe ho\\' transportation conformirr cktcmlination:< arc made. The transportation 

conf()nniry procc;-;;-; irn·olvc:-; :-;tate air 4ualiry and transportation ap:cncic~. lnctropolitan 

planning organizations. transit agencies, l·J)\, ;tnd the Department of Transportation. 

10. The ( :ourt's ntcatur of Fl' \'s determination tlut transportation 

confonnitl' rccjuircnwnts do not. after the I 'J•J 7 o;onL' \: \ \,~::; wa,; nToked. apph· to 

areas rhat hac! been required to show conf(>rmin· to that standard wlwn it was in effect 

will sig11ificanrh di:.:mpt rransportarion planning in horh 0111han nonattainmcnt arcn:< 

and orphan Inainten;-tnce area:;. FP.\ has rc-ecin.~d cornn1Ut11Gtlions frotn pot{'nrial!y 

affc'cted state and local <tgem·ic' tiL-tailing the di,;rupti\·e impacts nf the Court's 

decision. ,-.:,., .. \ttachmL'lll 1. \lost of the complete ( Jrphan '\Jon;111ainnwm and 

\buntenann· .\rca,; are not dcrerrnining tran:<pol'tation conf(>nnit\' f(lr an\' ( :.\.\ 

pollutant because rhc1· have been designated as anainmcnt for all currcnth existing 

ADD-41 
420 


30463.387

,,·1 

"• 

\,; \ \<2:-:. St:He and local gm·emmems for >tffi:ctecl areas ma1· no longer have the 

administrarin· and technical capacit1· to implement the transportanon contimnitTrelated aspect~ of the Court'::; decision. and rnay not be able to rc~un1c ~uch 

impll'mcmarinn without tm•tstmg considerable time and rc:<ourccs. hw example, in 

mder to complete rramportation conf~>rmiry determinations, rhc inrcragenn 

consultation process that invokes federal, Slate and local air <jualiry and transportation 

agencies may !ll'Td to he restarted. -1-0 C.FR. <J.1.10.S. :-:ignificant additional :<rate and 

loc1l technical ntp;:tcit~· in tctn:'.portation :tnd ctni:-:;-;tnn:-; n1ndding and data colkctiun 

ma1· al,;o he nccdccL as described in paragraph I I. 

11. Both the Or11han \;onattainmcnt and Clrphan .\l:timen:mcc· \rca,; 

include: large metropolitan areas including Boston, I ktroit. Indianapolis, \!ilw:mkcc, 

and La,; \'egas; mid-;;i~c citic;; includin~; Birmingh:tm, Loui"·illc, \;orfolk, and 

Raleigh Durham; and ;;mailer cities including !'ric, l'.\, I .an;;ing, \fl. l.nna, 01 L 

.\lacon.(;.\, :-;outh lknd-l·:lkhan, 1:-;, Charleston,\\.\'. and Rochester.\,;'\'. With the 

exception of one counry in th<..' Bo::;ton atcaJ and part of one county in the \11lwaukcc 

an.·a 1

, no;Jr of the ( lrphan .\rea~ ClHill1l''faTcd in !he prior ~l'ntcnce has dctnon:-:trared 

tran:-<.portcui(ln confunntty t~">t o;;;onc since the 1997 ozone .\:. \ VJ~ \\';t:', n:\·oked in 

201:0, in accordance with the SIP lkctuircnwnts Hulc. 

'Dukes Counr,·, ,\L\ i;; a nonartainmcm area for the 20118 ozone \;.\.\<)S. 

1 Pan of 1-.:cnosha Countr, \\'!is a nonattainmcnt at'C:l t(lt· the 200S ozone\,;_\,\():-;. 

ADD-42 
421 


30463.388

l ::!. r f the ( :ourt \; dcci:'ion rcrnalns lltlt..'hangcd, all of these afl'il." could he 

~nhject to ~uh:-:.httltial hann. ht.•cau;.;c new or revised transportation plan:-:.. 

irnpro\T1lll'11t progran1~ and non-cxcrnpt bigh\\·ay or tna~~ tnLn~ir projtct:::- cannot he 

approved, witll the effect tbt billions of dollars appropriated for infrastrm:ture 

impnl\'emcnrs could be frozen or lost. See -lil (:.F. H. 

13. lh' contrast, if the Court were to remand the tntnsporranon confortnit\· 

:bpccts of the SIP J.i.eLJUiremc·ms Rule to 1·:1'.\ wilh01tl \':tcatur, the \gene\ would be 

able to take fun her actton needed to avoid the potential di,;ruption to ongoing 

tran~pnrrzn1on planning, including is~uancc of regulatory rcvi~ion~ or guidance to 

as,;i,;t areas in meeting tran,;ponat·ion confonnny trqutrcmcnts, parricularlr gin·n the 

l:trgc number ol areas that arc not dcrcnnining confnrmitl' for any other pollutanT.<. lr 

IS likch' thar areas would need additional srart-up rime and pnS>ihl\' additional 

l'L'H>urccs to usc rhc latc:<r cmi"ions model (under -!0 CF!\. 9J.lll), for confonnitY 

modeling :JS well as time In collect and ;t,;,:c·mhlc the larc,;t \1\·:rilahle planning 

a,;umptions :unckr 40 C.l'. R. ')3.11 m. ro project on-road cmiso:ion.s inr<> the future. 

\s another example, areas which ha\T not been conducring the conformit\· process 

wlll also rwcd tirnc to re-:-;tan their intL'ragcnc~· consultation process. ,\ wide tange of 

locaL state and fi.·der:tl agcncic,; arc t'l'<]Uired to he included in the consultation 

proce,;,:. ·+0 C:.i'.R. 9.1.1115, and restarting the procc,;,; after a hiaru> of ,:cn:ral years 

may take rime. Some :l!T:" mal' also need rime to update rhcir motor vehicle emissions 

budgets. which ~l'nT ;1~ the li1nit-s on transportation cnli~~ions when a conformiry 

ADD-43 
422 


30463.389

de1ennina1ion is made. :;cc 40 C:.F!l.. 93.101. For some areas, cstinultes ofhiglnYay 

and tran~it cn11::':-'ions using a n1on' current en1i~~ions tnodel and pbnninf! as~un1ptinn:-~ 

n1a}· warr;tnt updating tnotor \·ehide erniss1ons hudgl't:O:, a proct'ss that ln\'okes a 

rc,·i,ion rn rhc rclcTant S1P. .\remand 'vill allow!-:!'.\ and the states time ro pur tlw 

ncce:'-sary rcsoun:cs. progr:-uns, and fran1l'\.\\Hl in place ro alJow areas rn appropriatel~­

tncct the transp( )rf;ttion confonnity rcquin.·n1cnt:-:. 

1mpac!s from Other Rccjuircmcms in ''Orphan :--;!ltl:lttainmcnr .\rca<' 

J.f. \\.ith respect to ( lrphan :\onaltmnmcnt .\rcas---arcas that wnc 

dcsig11a1ed r11Hlallaintncnt, and 1ll'\'L'r n·<ksign11tnJ fl) ana.innu_'Jlt, f<>r the 1997 

\:.\.\(~S. but were designated as attainment t(,r the more stringcm 21lOR :\.\.\(2:; and 

tlms art~aining the i <)')/' :\.\.\t2::> as a factual matter--planning agcncic·s and regulated 

entities han· been t(>llowing the ami· backsliding rn1uircmcnts nut lined in the SIP 

RclJUircnwnts !l.ulc .. \cconlingh·. some pl:tnning agencies and regulated entities in 

thc~c areas have nor been applyinp, ClTlain other requtt't'l11Cnts~ including 

nonattaunnetH tH.'\.V :-::ourcc rcTie\V (:\SH). with regard to 1hc now-rcvt,ked 1<)()7 

standard: and. pursuHnt to the SIP Rc<Jllircmcnts Rule. 110 air agencies han· made any 

further~~ P !TYlsion~ to add res:::. pn·viously unaddrcs:-:.cd nonattaintncnt rc4uin·n1cnt~ 

tor the rcYoh·d 19'r :\.\.\(~::>.The Court held that Fl'.\'s suspension of all these 

actiYities \\.';tS itnproper for any area tha1 had nnt undcrf!0!1l' a fornral n:dcsignation fur 

II 

ADD-44 
423 


30463.390

15. The nonattainmcnr '\::;R permit requirement~ appk to am pmposetl 

new and tnodified n1ajor stationary .soun .. '<'.'i locating in an area dc~ignmcd 

nonattainmetll on the date' such permit is to he is:.:unL Such proposed new and 

modified wurcc:.: must meet specitic prcconstmninn tT<luiremcnts. including: (ll the 

irhtallation of mr pnlhnion commls known as l.owcst . \chicvablc Emission Rate; (2) 

aCLJUi~ition of ctni~:.;ion~ offset:' fron1 other cxi~ting ~ource:-;: (3) certification thar all 

other wurccs "''·nnl by the applicant in the state arc comph·ing \\ith all applicable 

rcquitTmcnts tn rite state impkmctllation pl:tn; and an of ahnnatin· site·,;, 

~izc::;, production procc:->sl'~. <lnd enYironn1cntal control techniques ro show that 

hcndits of the prop• >Sed smrrcc signiticanl'ir outweigh the environmental and social 

costs imposed a:: a result of its location, con::~ ruction or modification. 

li>. l'nder thl' rcquircmcttts "'t t<>rth in the 200B ozone'\:\ \<2S :;Jp 

Requirements Rule. ;tfter the 19')7 ".\.\(2S was rc\·okcd, Orphan '\:onattainmcm 

\rcas out~idc the itnplcnwnted rlw Pn_:vl'nti,m o(Signi!icant l)ctc·rioration C"P~·aY~) 

permitting rcquircmL'nts l(>r att:tintnctll area,;, rather thnn dw non;tnainnwnt '\:':;R 

n:ljttirl'l1ll'nts ft)r !H1flattainnwnt area:-;. lf !]).\':' ru!l.' 1:-; in11ncdiardv vacated upon 

1!":-;uancc of the n1andate. pcm1it authorities ln rhet'c area:-; wlll no longer he ahlr In 

issue p:;l) permits, and applicanrs "·irh pending permits will han' to reapplY to satist\· 

the applicahk nommainnwm '\:SR fl'<]Uircmcnts. This is h<Hh highly disruptive and 

potcntialk bunknsotnc. 

!2 

i\DD-45 
424 


30463.391

17 \:carl\- all of the ( )'l'han \:onattainnwnt .\rcas arc likdv di)'.ihlc for 

fonnal rcdcsignarion~ but have not :--ought one frm11 the. \gl'ncy hcc-au;:;c FP. \ rnok 

the position in the ~ll' Reqwrements Rule that the. l)'.cncv mmfi 11o! fonn:tlk 

redesignate arc·as t(>r a revoked\:.\ \!J~ . . Is shown in Table 5. all 13 areas factualh 

did :11tain by thl'ir n:spcctlvc attainnwnt date~, ;tnd currently han_' (:Jean l)ala 

I)etcnnin~ltilH1S.' 

Table 5: Status ofOqili:tn \:onattainmcnt .\rc·:i' 

1997 Ozone NAAQSAre~.Nanw 

....... ··Attainm.cnt 

1997 

Ozone 

NAAQS 

Year 

Design 

Value 

(ppm)' 

Clean Data 

Determination 

Federal 

Register 

Notice 

'7JS.'il 

"In order to appron: a redc~ignation rt'tjUC~t, a State must dcnronstrarc rhat an ar{'a 

has attained the 0-.\.\QS: (2) has a fullY approwd applicabk implementation plan: 

~:J) attained due to pcnnant'nt and enforceable ctnls;:-;ion n:ducnon~~ >fl has an 

appr(l\'l'd rnainrenancc plan: and (5) ha;-; met all rc<.juircmcnt;-; applicable to tht.: area. ,-l-2 

l ,:-; c: 

\ hY FP.\ uncler 40 C. FR. )1.Q1S that a nnnattainnwnt area ha" air 

'JualitY that mt'C1S the· applicable\: \.\(2S. This dctcrmin:Hion "'"l"'nds the 

n_.tjuin.'nll'tlt:- for ~uch area Jo suhmir anainnwtn (ktnnn:-<rration:-: and as.:-;ociarcd 

I"C<lSOnabiy antiJahlc control Il1C:l:'-Ut'L'S, t't'il~Ollabk further progreSS plans. COntingency 

nwa:-:.urcs, and (>tl1cr pLuming Sl Ps related !() attaitlfrll'nt of the R~lH)Uf <)Z< me \.._\. \(J~ 

until such time as the area is redesignated to attainment. or!]'.\ determines that the 

area has again vlol;ucd the R·hour o;.onc :..:.\.\(~S. 

The 1 ')<)" \:.\.\(~~is based on an eight·ll!lur '"'"rage concentration of O.<l?l ppm. 62 

lTd. l{cg. 3R,856 .. 1H.B58 (luly 18, llJ1r:'). C:ompltancc w!th the I'J'r' :--.; II<JS is 

dctcnnincd bascJ on data derived from air tnonitors operated in accordance with ~tO 

(:.FR. Pan SH. Thi:-; data is U;-ied ro calculate a :'tali:' tic known a~ the "De~i~111 \'alue" 

for each rnonltor. which i~ "the .1-year tl\'Cragc annual fourth- htghcst daily tnaxin1u111 

s.!wur !ozone! COillTiltration." .. j(l C:.l·.R. Part 50, \pp.l. 

ADD·46 
425 


30463.392

·"j~~~~··r~;n. I .awruKc-\\'(HTc~tcr ([ -', 

;_Ia:'''L ~ . .. . ~ ~ __ \Iaripo~a and TuolunHll' Cos, 

,(St'"~crn \l<>untain Ct>Un!Jcs) 

· Philadelphia· \\'ilmington- \ tlantic 

( :ity 

Buffalo '.'iagara bllo 

PfmghktTJl:-'H: 

r<)\~idencc 

Sutrcr County (part) (Surtcr 

.\f.\ 

(\ 

i p \. 

'.'J, 

• \!!), I 

:D1: 

: '.'Y It/ 15/2007 

hi l 'i/2010 

'-'Y (,/ 

'.'Y 

Rl 

'-'Y 

\1 \ 

C\ 

O.ORI 

o.oin 

o.mu 

77 l·cd. Rev;. 

31·1% 

.,., I'td. Reg. 

71.SS1 

77 Fed. Reg. 

17.141 

.06404 

77 l'cd. Reg. 

7J 'i.'i 1 

1 R If 1hc ( :(n.trt docs JH)t rcc<m~idcr it~ suhstanrin_· holding::: wi1h rcspcct !"<) 

( >q1han ~onat1ainnwnt .\n:a:-~, rhe state:-; of ).'cw York. \lassachuscus, Rhode bland, 

( :ali(ornia~ and l )cbwarc will need 10 ~uhmit rc·dcstg11ation request:-;, rmd FP \will 

need to appro\ c tho:-:.:c t'l'LJUests, to c::top itnplcmcntatton of nunattainmcnt atc(ts· 

com rob f(>r the 1 'l'F o!andard .. \,noted earlier, I'.P.\ hclinTo nearlY all of the 

t lrphan '>;onattainmcnt .\reao arc likelY cligihlt for t(mnal reJcoignation. 

II 

ADD-47 
426 


30463.393

19. In order for an area rn he redesig11;1tcd, the stale rmtst submit a 

redcsignation request ro the .\p;cncv, which can onlr be· submitted after completing a 

~tatc-k'•d:l notlcc and con1n1en1 rulen1akingproce~s. J]) \ tnus.t then act l)ll that 

request through noticc-and-comnwnt rukmaking. The prelimin;tt"l" estimate is that 

the"' stares will need IR months ro dn-clop and suhmilthc SIP revision rwccs:<arv for 

a redcsrgnarion, lit!lowing ;til applicable Sll' :tdnption procedures. Upon receipt. l :1' \ 

will need approximately 12 month:< to review, propose and finalize action (>n the 

20. Immediate vacatur of the Sll' Retjl!irements Rule upon i"uance of the 

mandate will not allow :<tares time to prepare and :<uhmit such requests. let ;Jlone allow 

FP~ \ to act on thcnl, before \'ariou:-; nonattainrnent fT{tUit-etncnt$ will spring in1o 

pl;1cc .. \.remand without vacatur would allow the nates t-cspon,iblc for thc'c arn" 

rwhich arc :111 factual!\- attaining the 1')')7 '\;,\,\():;:,and FP.\ a rea,onable period of 

tinw ro carry our the necessary rc{h:signation \vork, and would ;luJid confu~lon and 

di:<mption in th<c ;;hort tenn on the part of state and local ,.,:ov-crnnwnl:' th;tt h;n-c been 

rdnng in good faith on the rule under review. 

i\DD-48 
427 


30463.394

~( l l WU \RI:D: 

11, 

ADD-49 
428 


30463.395

Attachment 1 

ADD-50 
429 


30463.396

AMERICAN ASSOCIATION 

IJF STATE HIGHWAY AND 

TRANSPORTATION 0 FF"ICIALS 

AASHID 

March 16,2018 

The Honorable Scott Pruitt 

Office of the Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave. NW 

Washington, DC 20460 

Re: EPA Response to D.C. Circuit Decision in Sowh Coast Air Quality Management Districr v. 

EPA, Case No. 15-1115 

Dear Administrator Pruitt: 

The American Association of State Highway and Transportation Officials (AASHTO) and the 

Association of Metropolitan Planning Organizations (AMPO) jointly request that the Environmental 

Protection Agency (EPA) file a petition for rehearing and request for stay of the February 16, 2018 

decision in South Coast Air Quality Management District v. EPA, Case No. I 5-1!15 in the U.S. 

Court of Appeals for the District of Columbia, This letter sets forth the reasons for this urgent 

request. 

In the South Coast decision, the court vacated major portions of a 20 !5 final rule that established 

procedures for transitioning from the !997 National Ambient Air Quality Standard (NAAQS) for 

ozone to the stricter 2008 NAAQS for the same pollutant.' The 20 I 5 rule included several 

important provisions to avoid imposing duplicative and unnecessary regulatory burdens. Of most 

importance to transportation agencies, the 20 I 5 rule ensured that areas designated as nonattainment 

or maintenance for the 1997 standard would not be subject to air quality conformity requirements if 

those areas are in attainment for the stricter 2008 standard. 

The court decision overturned this common-sense provision in the 2015 rule, holding that areas 

designated as nonattainment or maintenance for the 1997 standard-but as attainment for the 2008 

standard-must remain subject to conformity requirements for the 1997 standard to avoid 

"backsliding" on efforts to meet that standard. But the court also agreed with EPA's finding that 

the "measures that achieved attainment of both the !997 NAAQS and the 2008 NAAQS should be 

adequate to maintain the same 2008 NAAQS that has already been attained." The contradiction is 

clear: on one hand, the court finds that conformity must continue to apply for the 1997 standard to 

avoid backsliding; but on the other, the court agreed that the measures already in effect in those 

areas should be sufficient to maintain compliance with the stricter 2008 standard. 

1 Sec "Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan 

Review Rcquircm~nts," 80 Fed, R~,g. 12,264 (Mor. 6, 2015). 

ADD-51 
430 


30463.397

The court also vacated several other provisions in the rule that provided flexibility in 

transitioning to the 2008 ozone standard, and appears to have invalidated EPA's revocation of 

the 1997 standard. If the revocation of the 1997 standard is invalidated, the implications of this 

decision are even broader: it would mean that areas designated as nonattainment or maintenance 

for the 2008 standard must make conformity determinations for the 1997 standard, in addition to 

making conformity determinations for the stricter 2008 standard for the same pollutant. 

The practical effects of this decision on transportation agencies will be severe. As of February 

16,2018, air quality conformity requirements for the 1997 ozone standard have been re-imposed 

on dozens of areas around the country that have fully attained the stricter 2008 ozone standard, 

and possibly on dozens of additional areas that are in nonattainment or maintenance for the 2008 

standard. The immediate re-imposition of conformity requirements will prevent States and 

metropolitan planning organizations (MPOs) tram approving transportation plans and 

transportation improvement programs (TIPs) until the necessary air quality analysis and 

conformity determinations can be completed. Without an approved plan and TIP, the flow of 

federal funds for highway and transit projects in many areas will be halted. 

Moreover, the invalidation of EPA's 2015 rule potentially calls into question the validity of 

existing every plan and TIP approvals made in reliance on that rule. MPOs across the country 

have approved plans and TIPs since March 2015 without making conformity determinations with 

respect to the revoked 1997 ozone standard. If EPA were to conclude that those previous plan 

and TIP approvals are now invalid, given the lack of a conformity determination for the 1997 

standard, the effects of this decision would be even more immediate and far-reaching, potentially 

including a halt to ongoing construction projects. 

As an indication of the potential magnitude of the problem, there were 35 nonattainment areas 

and 80 maintenance areas for the 1997 standard at the time the 1997 standard was revoked. 

These 115 areas are located in 32 states and 434 counties. 1 The immediate re-imposition of 

conformity requirements for the 1997 standard could disrupt transportation projects in all of 

those counties. In Atlanta alone, the MPO has approximately $1.5 billion of projects in its TIP; 

in Houston, the MPO bas approximately $4.37 billion of projects in is TIP; in Hampton Roads, 

Virginia, the TIP includes $4.89 billion of projects. The re-imposition of the 1997 standard 

threatens the ability of these and other MPOs to continue moving forward with billions of dollars 

in projects. 

To avoid immediate and far-reaching disruption to transportation projects, it is critical to seek 

every available means to obtain relief from this court decision. We therefore request that EPA 

file a petition for rehearing in the D.C. Circuit and seek a stay of the court's decision within the 

45-day period allowed for such a petition (by April2, 2018). If EPA files a petition for 

rehearing, our organizations intend to seek the court's permission to file an amicus brief in 

support of the rehearing request. 

2 See EPA wehsHc, https://wwwJ.cpa.gov/mrquality/greenbooklgbtc.htmL 

ADD-52 
431 


30463.398

In addition, we request that EPA issue interim guidance as soon as possible regarding 

implementation of the court decision, and that any such guidance provide maximum flexibility 

and minimize disruption to ongoing projects. Specifically, we ask EPA to confirm that: 

In non attainment or maintenance areas where the 1997 ozone standard wa' revoked and 

no other conformity determinations for other pollutants or standards were required, all 

existing transportation plans, TIPs and projects are valid for twelve months from the date 

of the Court decision; at the end of the twelve-month period, a conformity determination 

for the 1997 ozone standard would be required. 

In areas where the 1997 ozone standard was revoked and conformity requirements for 

other pollutants or standards apply, all currently approved conformity determinations are 

valid until the next required conformity determination is made in each such 

nonattainment or maintenance area. At the time of the next required determination, the 

nonattainment or maintenance area would meet the conformity requirements for the 1997 

ozone standard and any other pollutants or standards for which conformity is required. 

While not a complete solution, such guidance may provide some relief from the regulatory 

burdens and project delays caused by this decision. 

We also note that this court decision highlights the need for a permanent legislative solution to 

resolve the uncertainty about what the Clean Air Act requires when EPA issues a new, stricter 

NAAQS to replace a previous one for the same pollutant. In its recent infrastructure reform 

proposal, the White House specifically recommended "[a]mending the Clean Air Act to clarify 

that conformity requirements apply only to the latest NAAQS for the same pollutant."' We 

strongly support this recommendation for legislative change. 

We appreciate your attention to this urgent request. We would welcome the opportunity to meet 

with you and your staff to discuss these issues. Should you have any questions, please contact: 

Melissa Savage from AASHTO at (202) 624-3638, or Bill Keyrouze from AMPO at (202) 624-

3683. 

Sincerely, 

&;rtf) 

Executive Director 

AASHTO 

DeLania Hardy 

Executive Director 

AMPO 

J "Legtslative Outltnc for Rebuilding Infrastructur~ in America,· (Feb, 12, 2018), p. 44. 

ADD-53 
432 


30463.399

cc: 

Brandye Hendrickson, Acting Administrator, Federal Highway Administration. U.S. Department 

of Transportation 

K. Jane Williams, Acting Administrator, Federal Transit Administration, U.S. Department of 

Transportation 

Jeffrey Wood, Acting Assistant Attorney General, Environment and Natural Resources Division, 

U.S. Department of Justice 

OJ. Gribbin, Special Assistant to the President for Infrastructure, The White House 

Alex Herrgott, Associate Director for Infrastructure, Council for Environmental Quality, The 

White House 

4 

ADD-54 
433 


30463.400

March 8, 2018 

The Honorable Scott Pruitt 

Office of the Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

Atlilnta Regional Commission 

Re: Request for EPA to Seek an Appeal and Stay of the South Coast Air Quality Management District 

Ruling 

The recent court ruling ln the ;?outh Coast Air Quality Management District v. EPA et aL, No. 15-111.5 (D.C. 

Cir. Feb. 16, 2018) vacated portions of the 2008 Ozone Implementation Rule (80 Fed. Reg. 12,264) 

revoking transportation conformity for the 1997 ozone standard. This action appears to result in EPA 

being unable to renrler conformity determinations for pending transportation plans and programs in 

<Jreas originally classified as nonattainment for the 1997 standard, The <:~ttached summary details the 

impacts on the Atlanta region as we understand the court ruling. 

Since Georgia's Metropolitan Planning Organizations (MPOs) have ceased demonstrating conformity to 

the 1997 ozone standard, per the 2008 Ozone Implementation Rule, several urbanized areas in the state 

of Georgia are now without .a 1997 ozone standard conforming transportation p!an, thereby restricting 

the ability of EPA to approve conformity determinations for amendments to Regional Transportation 

Plans (RTPs) and Transportation Improvement Programs (TIPs). Currently in Georgia, the Atlanta Regional 

Commission (ARC) has two RTP/TIP amendments in progress that are impacted by this decision. Ib_j~ 

court decision !~l:§:o:.!t~n.~ .. Jbe implementation of over $1.5 billion in federal transportation funds in FY 

2018 and FY 2019. 

l~J:!._f\J\S!!J!!L.BfgjQ~.Qmrnlssion Georgia Department of Transportation. and .Geo_rgi;LJ3:!:"!glonal 

Transportation Authority request that ~f._l\...<mi2§al thls ruling and re~t_<;~ __ ~J9_(on the previous decisior:! 

.t9_~!l~L!l~_1b.!~.JfllillQ9rta.li9.!J.J?l9 .. Q.!liD~_m:Qject deHver~J2JOCess can continue on schedule. This action 

will ensure a smooth transition and prevent delays in the delivery of transportation projects and 

programs- that will impact the llves of millions of Georgians. 

ADD-55 

atlantaregionaLorg 

!nterna!ionn! Towr.r 

??9 Peilchtre£! St. NE : Suite 100 

Atlunta, GeorqiJ 30303 
434 


30463.401

Sincerely, 

Doug Hooker 

Executive Director 

Allanta Regional Commission 

~(ZMf/110 Commissioner 

Georgia Department of Transportation 

Christopher Tomlinson 

Executive Director 

Georgia Regional Transportation Authority & 

State Road and Tollway Authority 

C: Ken Wagner, EPA 

Attachment: Ozone Implementation Ruling Impacts 

Kerry Armstrong 

Chairman 

Atlanta Regional Commission 

~, 

/t.LJ;U~ 

ji 

Jamie Boswell 

Chairman 

Georgia Department of Transportation 

Walter M. "Sonny" Deriso, Jr. 

Board Chairman 

Georgia Regional Transportation Authority 

ADD-56 
435 


30463.402

ANTICIPATED IMPACTS ON THE ATLANTA REGION TRANSPORTATION PROGRAM FROM THE SOUTH COAST 

AIR QUALITY MANAGEMENT DISTRICT, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY, ET AL., 

RESPONDENTS NATIONAL ENVIRONMENTAL DEVELOPMENT ASSOCIATION'S CLEAN AIR PROJECT, ET AL., 

INTERVENORS 

Background 

When a new ozone or particulate matter standard is put in place, the Environmental Protection Agency (EPA) 

provides a rule that informs States on how to implement the new standard. This rule is colloquially called the 

"Implementation Rule." When the nation transitioned from the 1997 to the 2008 ozone standard, EPA laid 

out a process in its Implementation Rule to remove requirements for the 1997 standard, including 

transportation conformity requirements, for areas that were designated for the new, stricter 2008 ozone 

standard and had attained the 1997 standard. 

The goal of this process was to lower the burden on governments to meet requirements for multiple standards 

simultaneously, especially in the case where areas were already determined to be in nonattainment for a 

stricter standard. 

In the Atlanta region, the transition from the 1997 to the 2008 ozone standard resulted in a smaller 15-county 

non attainment area, replacing the 20-county 1997 ozone area. Conformity was then revoked for the outer 5 

counties including the Gainesville-Hall MPO - in 2015. In 2015-2016, ARC worked with the Georgia 

Environmental Protection Division (GA EPD) to establish new motor vehicle emissions budgets for the 2008 

ozone standard and altered the conformity process to reflect the new procedures outlined in the 

Implementation Rule. 

Lawsuit and the United States Court of Appeals for the District of Columbia Circuit Ruling 

In 2017, the South Coast Air Quality Management District filed suit against EPA over the Implementation rule, 

citing removing conformity requirements {among other items) violates rules that help areas uphold air quality 

standards. As a result, on February 16, 2018 the DC Circuit Court of Appeals vacated portions of the EPA's 

2008 Ozone Implementation Rule, agreeing with the plaintiffs. This ruling vacated the revocation of 

transportation conformity requirements for the 1997 ozone standard. 

Implications and Unknowns 

As ARC staff currently understands the ruling, all areas that were nonattainment for the 1997 ozone standard 

at one time must now continue to demonstrate conformity to that standard to receive a positive conformity 

determination on their Regional Transportation Plan (RTPs} and Transportation Improvement Program {TIP). 

ARC has two TIP amendments in the pipeline that staff believes cannot be approved by federal partners, 

effectively stalling the transportation planning process. It is important to understand that this stall will be 

temporary, but threatens the implementation of over $1.5 billion in federal transportation funds in FY 2018 

and FY 2019- and has the potential of trickling into future years as delays accrue. This action is the result of 

a court ruling, and is NOT a conformity lapse due to the inability to demonstrate conformity to established 

motor vehicle emissions budgets, as was the case in the Atlanta region during the conformity !apse of 1999. 

ARC will continue to work with our state and federal partners to pursue the best path forward. ARC can 

respond to the recent court ruling (processing a RTP/TIP amendment and demonstrating conformity to the 

1997 Ozone standard} if this is what EPA requires, but this will take time. 

EPA should immediately seek an appeal and stay of the ruling, allowing states and MPOs to respond to the 

ruling and avoid threatening billions in federally-funded transportation projects. 

attantareg1on.aLorg 

ADD-57 
436 


30463.403

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

SIERRA CLUB, era! .. 

Petitioners, 

\'. 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY, eta!., 

Respondents 

Nos. 15-1115, 15-1123 

(consolidated) 

DECLARATION OF 

WALTER C. WAIDELICII, .JR. 

I, Walter C. Waidelich, Jr .. declare as follows: 

I. I am the Executive Director tor the Federal Highway Administration 

(FHWA), an operating administration of the U.S. Department of Transportation 

(DOT). [have served in that capacity since March !5, 2016. Over the past JO 

years, I have held a variety of other positions within FHW A, and have been 

intimately involved in virtually all aspects of highway planning and project 

delivery. 

2. FHWA supports State and local governments in the planning, design, and 

construction of Federal-aid highways. FHWA administers the $44 billion annual 

Federal-Aid Highway Program, thereby providing significant tinancial assistance 

for the over one million miles of Federal-aid highways. Under FHWA 's governing 

J\DD-58 
437 


30463.404

statutes. FHW A's primary purpose is to provide oversight and "monitor the 

effective and efticicnt use of funds" on these Federal-aid highway projects. 

3. As a part of executing its statutory obligations, and as relevant in this case, 

FHW A provides federal oversight and approval i~>r the complex environmental 

planning processes that such projects require, including "transportation 

conformity" determinations imposed by the Clean Air Act (CAA). FHWA 's tleld 

oftices work in collaboration with State Departments ofTranspm1ation and 

Metropolitan Planning Organizations (MPOs) to ensure compliance with the CAA 

procedural requirements as a prerequisite to implementing Federal-aid highway 

and related transportation projects. 

4. If a State detcnnines it will seek Federal-aid assistance for a highway 

project, the project must lirst be submitted to FHWA on the Statewide 

Transportation Improvement Program ("STIP"), which lists the various proposed 

federally-funded projects that the State wishes to pursue. States are required to 

submit their ST!Ps to FHWA and the Federal Transit Administration (FTA), 

another operating administration of DOT. tor joint approval. In metropolitan 

planning areas, the proposed project must also be included in a Metropolitan Long 

Range Plan (Plan) and Transportation Improvement Program (TIP). The TIP then 

becomes a subset of the statewide STIP. In order for a transportation project to 

receive Federal-aid highway funds, FHWA 's planning statutes at 23 U.S.C. §§ 

DEC!. OF WA!II R C. WAUJ!.UCIL.IR. 

f)ualil) /V~i!,mt Di,H. 1>. Em·t '/ P::\[){5~5(9'· Nos. 15-! 115 and 15-1 ! 23 
438 


30463.405

134(j)( I) & (2) and 135(g)(5) require the project to be consistent with the statew-ide 

and metropolitan long-range transportation plans and he included in the STIP and 

np_ 

5. Under the CAA, the Environmental Protection Agency (EPA) reviews air 

pollution conditions in state and metropolitan areas, and may designate areas as 

either in "attainment" or "nonattainmcnf' for a national ambit'nt air quality 

standard (NAAQS) of a pollutant. Once a nonattainmcnt area has attained the 

NAAQS for a specified pollutant, the State may submit a request to the EPA for 

there-designation of the nonattainmcnt area and revises its State Implementation 

Plan to provide for the "maintenance" of its air quality status (i.e., remaining in 

"attainment" for that NAAQS ). The area is then known as a "maintenance area'' 

for that NAAQS. 

6. As a prerequisite to receive federal funding, Plans and TIPs in nonattaimnent 

and maintenance areas f()r the transportation-related pollutants. including ozone, 

must meet ''transportation conformity" requirements under the CAA. The purpose 

of a transportation confom1ity determination is to ensure that lhleral funds go to 

transportation activities that are consistent with (i.e., ''confonn to") a State's air 

quality goals and plans that are set forth in the State Implementation Plan. 

Conformity means that FHW A f1mding and approvals are given to highway 

lli::CL OF WALII:R C WAJI>t:I.ICII. Ji<. 

Vis!. l'. Enl'/ '1/'~~bts:Gcr ~0.). 15-! 115 and 15-1 123 
439 


30463.406

activities that will not cause new air quality violations, worsen existing violations. 

or delay timely attainment of the NAAQS or any interim milestone. 

In addition to the metropolitan transportation planning documents, individual 

projects in nonattainmcnt and maintenance areas must also meet transportation 

conformity rc4uirements. !fa highway project in a nonattainment or maintenance 

area is not in the con!bm1ing Plan and TIP, then FHWA cannot obligate the funds 

that were programmed for the project, and the project may not advance to 

constmction. 

7. The transpmtation confbnnity detcnnination process involves complex 

technical analysis and assessment For Plans and TIPs, the major components of a 

conformity determination include: interagency coordination on critical issues: 

public involvement; use ofthe latest planning assumptions and the latest EPAapproved emissions model; regional emissions analysis; demonstrations that onroad mobile source emissions arc within a motor vehicle emissions budget; a 

demonstration that there is timely implementation of transportation control 

measures: and meeting of liscal constraint requirements of the planning 

regulations. 

8. EPA has identified 82 nonattainment and maintenance areas for the 1997 

ozone NAAQS, which encompass as many as 228 counties in 24 States. These are 

the areas addressed by this Coun's February 16,2018 decision. The Petitioners 

DECL. OF W,\IHI< C. WAJIH! lC!!. JR. 

Quality Mg.mt. DiS!. \'. bn·f? "ADi§~61r. Nos. 15-1 t 15 and 15-ll.:!J 
440 


30463.407

referred to them as "orphan'' areas (which is not a term of art used in transportation 

planning and project delivet)' or transpor1ation conionnity). 

9. In many of the 82 .. orphan" areas to which this court's decision applies, the 

process of making the transportation conf(mnity dctenninations for the 1997 ozone 

NAAQS that arc required pursuant to the Court's decision may take up to a year or 

longer to complete. The time involved in completing the transportation conformity 

determination process depends on a variety of factors, including the planning 

organization's technical capabilities to perform the modeling processes, the degree 

of technical complexity lor a given State or area, and the relative freshness or 

staleness of prior studies and data inputs. The attached time line provides details of 

the steps and time that FHWA expects will be necessary for most of the "orphan" 

areas to complete their confom1ity determinations lor the I 997 ozone NAAQS, in 

the absence of futther guidance or relief from EPA. Exhibit I. We do not expect 

that this exercise will impact emissions of ozone pollution precursors, because 

EPA considers all 82 "oqJhan" areas as cun·ently in attainment, not only with the 

1997 NAAQS but also with the more stringent 2008 NAAQS. 

I 0. This Court's decision raises numerous implementation questions about 

exactly what should be done in these "orphan" areas to comply with the CAA, 

pat1icularly with respect to transportation confotmity detenninations for Plans and 

TIPs, as well as future project funding and/or approval actions. As the 

DEC! . OF WAI.li.H C. WAlllE! ll'll. JR. 

{hwlity ,\;fj{ml. Dis!. l\ r:nrl 'I p~\DiS~G:r Nos. 15-1 I 15 aud l5-ll2J 
441 


30463.408

transportation planning process and project approvals are continuously ongoing 

processes, the regulated community is straining under the considerable uncertainty 

that now exists with respect to moving fotward with actions currently pending or 

that will be pending in the near future. EPA has not yet provided guid"nce that 

addresses this uncertainty, and will need adequate time to do so. 

II. The criteria and procedures that EPA has established tor making 

transportation conformity determinations currently only applies to non-revoked 

NAAQS. FHW A is not aware of any EPA regulations or guidance on preparing a 

transportation conformity detennination tor a revoked NAAQS, such as would be 

the case with the 1997 ozone NAAQS. 

12. The impacts of the Court's decision will negatively affect FIIW A's abilities 

to determine that pending Plans and TIPs meet contormity requirements. It also 

may impact FHWA 's ability to approve STll's. Consequently, advancing the 

projects in those Plans and TrPs and STlf's may he halted until the necessary air 

quality analysis and contonnity detem1inations can be completed. Although it is 

difficult to quantify the immediate impacts of the Cot111's opinion given the vast 

array of projects being planned and implemented around the country, we estimate 

that there are substantial impacts on major highway projects in (IS many as 228 

counties in 24 states. Literally billions of dollars in construction pr()jects could be 

impacted through the end of this calendar year if there is no relief. All of these 

DEC!. OF WAt IH\ C WAlDLliCJi.JR. 

Oualill' .\!gmt. /)is!. \'. Em·t 'I Pro/. Ai!W1(l'. Nos. ! 5-11! 5 and I 5-1123 - . ADD-63 
442 


30463.409

projects are located in areas that have cleaned up their ozone air pollution, and 

currently meet the more stringent 2008 ozone NAAQS. 

13. State and local planning organizations and transportation agencies involved 

in transportation confom1ity and project decisions have requested EPA to provide 

guidance on how to proceed with their work in light of the Court's opinion. These 

organizations have justil1ably relied on a decision-making environment where, 

based on EPA's 2008 Ozone SIP Requirements Rule at issue in this case, they no 

longer needed to make conformity determinations for the 1997 ozone NAAQS 

because they had already reached attainment with the stricter 2008 NAAQS. The 

Court's opinion has sweeping practical implications for these organizati0ns and 

agencies. For instance, in a joint letter to the EPA Administrator dated March 16, 

2018 (see Exhibit 2), the American Association of State Highway and 

Transp01tation Officials (AASHTO) and the Association ofMetrop0litan Planning 

Organizations (AMPO) implored the EPA to provide immediate guidance because 

"[t]hc rractical elfects of this decision on transportation agencies will be severe." 

The letter continued: "The immediate re-imposition of conformity requirements 

[for the 1997 ozone NAAQS] will prevent States and metropolitan planning 

organizations (MPO's) ti·om approving transportation plans and transportation 

improvement programs (TIPs) until the necessary air quality analysis and 

conformity determinations can be completed." 

DEC!. OF WM.ri.R C. W.\!Dt:I.IUi.JR. 

{!zwlity:\1)!mt. /)is!. r. Enw'J Prot .. 1"-'em-r. 'So5. 15-1115 and 15-1123 

ADD-64 
443 


30463.410

14. As part ofFHWA's eftorts to implement this Court's decision while in a 

temporary vacuum of EPA guidance. FHWA has identified a critical need for 

technical assistance among its partner State and local govemments. FHW A has 

therefore organized a technical supp011 team located in various pmts of the country 

to serve as a pmtial resource f(lr affected stakeholders to usc over the next twelve 

months. This team is composed of air quality modelers and other subject matter 

experts, who can help guide the necessary work for affected stakeholders to satisfy 

the re-instated requirements for 1997 ozone conformity determinations. 

In aduition, on April 23. 2018. HIW t\ and FTA issued Interim Guidance 

(Exhibit J) to FHW A and FT A Held oftices. The interim guidance demonstrates 

FI-IWA and FTA's good faith eff(lrt to comply with the Coutt's decision by halting 

planning anu project actions in all of the ''orphan" areas for the time being. 

FHWA w·ould usc the time allowed by a remand without vacatur to work with EPA 

to develop guidance and to help its stakcholuers implement this Court's decision 

without disrupting the delivery of necessary highway projects to the millions of 

citizens who depend on FIIWA to provide safe and cnlcient highway travel. 

DEC!. OF Wc\lll:R C. WAIIll.llCI!..IR. 

Vuali~t' .\.fgmf. Dis!. v. En I'! 'I Prot. Al!cncy, Nos. 15-111 S and I 5-112J 

ADD-65 
444 


30463.411

.1 i 

Pursuant to 28 U .S.C. § 17 46(2 ), I declare under penalty of pccjury that the 

foregoing is true and correct. 

Executed on 

(j}rct~ 1( 

----·-· 1~-L------·-···· WALTER c. WAIDELICIUR. 

DlcCL. 01' WALil R C. WA\Ilt:LIUI. JJc 

South Coast tlir t)uali~\ .\1:;:mt. !Jist. \'. Enw 'I Prot. ,1gcn(r. Nos. 15-1 1 15 and ! 5~ 11 :::; 

ADD-66 
445 


30463.412

Exhibit 1 

ADD-67 
446 


30463.413

EXHIBIT 1: 

Timeline of Typical Steps to Complete Conf(mnity Determinations 

on Plans and Tl Ps in "Orphan" !997 Ozone Areas 

Not Completely Covered by 2008 Ozone Areas* 

c0n~ullatio11 (40 CFR 

9.1.105) 

Prepare t\x cmis~ion~ modeling {e.g., 

dO\\nh~ad/install late~t emissions modeL 

C<Hnplctc training, secure contractors ft)r 

\\Ork if necessary) (40 CFR 93. Ill) 

Obtain data fbr lravclm::t\u1rh.s (40 CFR 

lJ3.122} 

De\ clop latest p\annin!!' assumptions (e.g .. 

collect new vc:hiclc activity data. 

Conduct intcragL:ncy consultation 

(rcyuircd) (40 CFR 93. 105) 

Build travel networks horizon years (40 

~~--- Cl R_'IJ_J_()iJL l\1 PO 11oard approve~ pn:jcct lists 

l ·onduct travel and emissions modeling and 

oft'..nd\\nrk analysis (40 CFR 93.1 OS) 

· Conduct publi'-' invol;crnent 

Jays) on metropolitan long: rangt.' Plan, TIP. 

' and conformity documentation (40 CFR 

9J,\05.~3.112) 

Respond tn interagency and puh!ic 

comments (40 CFR 93.105. 93.112) 

MPO Board makes confi:Hmity II 

__ ~~tc!~li_na~i~~n ~49~-q~·f3._2~~ 1_02)~~---~··---. 

DECL. Of WAI.ft:RC. WArnu.JCIJ..IR. 

Qualiiy A>IJ!,ml. Dist. r. Enrt '/Prot. Ai!encv. Nns. 15~ I I 15 a11d J 5¥1123 

ADD-68 10 
447 


30463.414

;--P-u bli~~~ .. fi~~~f ~-~;~r~)~;,~-il\ -d~t~:;~;·i~at ;~;n(4_6_ 

CFR 93.1 05) • dctcnnination ani.l 

Make cont()mlity detcm1ination in 

coordination \\-ith FTA {~0 CFR 

93102) 

•This timelinc \\as developed by staff in FHWA 's Onicc of Planning. Environment & 

Rcalty1Air Quality and Transportation Conformity Team as a supplement to the dcdaration. 

DECL OF WAL II R c. w ·\!DlllCll. JR . 

.ifgmt. /)ist. v, Enw ']Prot. Ag-et1(V, Nos. 15~ 1115 and 15~ I 123 

ADD-69 11 
448 


30463.415

Exhibit 2 
449 


30463.416

AME'RlCAN .A,SSOC!ATlON 

LJF STATE l-HGHWAY AND 

TRANSPORTATION OFFICIALS 

AASHID 

March 16,2018 

The Honorable Scan Pruitt 

Oftice of the Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave. NW 

Washington, DC 20460 

Re; EPA Response to D.C. Circuit Dcdsion in South Coast Air Quality Managemellf District v. 

EPA. Case No. 15·1115 

Dear Administrator Pruitt: 

The American Association of State Highway and Transponation Officials (AASHTO) and the 

Association of Metropolitan Planning OrganizaJions (AMPO) jointly request !hal the Environmental 

Protection Agency (EPA) file a petition for rehearing and request forstay of the February 16, 201& 

decision in Sowh Coast Air Qualitv Mmwgemel!f Districr v. EPA. Case No. 15·1115 in the U.S. 

Court of Appeals for the District of Columbia. This letter "ts forth the reasons for this urgent 

request. 

In the Sowh Cmw decision, the court vacated major portions of a 2015 final rule that established 

procedures for transitioning from the 1997 National Ambient Air Quality Standard (NAAQS} for 

ozone to the stricter 2008 NAAQS for the same pollutant.' The 2015 rule included several 

important provisions to avoid imposing duplicative and unnecessary regulatory burdens. Of most 

importance to transponation agencies, the 20 !5 rule ensured that areas designated as nonattainment 

or maintenance for the !997 standard would not be subject to air quality conformity requirements if 

those .areas are in attainment for the ~tricler 2008 standard. 

The court decision overturned this common-sense provision in the 2015 rule, holding that areas 

designated as nonattainment or maintenance for the !997 standard~-- but as attainment for the 2008 

standard-must remain subject to conformity requirements for the 1997 standard to avoid 

"backsliding" on efforts to meet that standard. But the cow1 also agreed with EPA's linding that 

the "measures that achieved attainment of both the 1997 NAAQS and tbe 2008 NAAQS should be 

adequate to maintain the same 2008 NAAQS that has already been attained." The contradiction is 

clear: on one hand, the court finds that conformity must continue to apply for the 1997 standard to 

avoid backsliding; but on the other, the court agreed that the measures already in effect in those 

areas should be sufficient to maintain compliance with the stricter 2008 standard. 

1 Sec "lmplcmcnlaiion of the 2008 Nauonal Ambienl Air Qualny Sta.ndMds lOr 07nne: Stnte Implcm~nlotion Plan 

Rt!vicw Rcquircmcnl'i ... l({} Fell Reg. 12.264 (Mar. 6, 2015) 

ADD-71 
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The court also vacated several other provisions in the rule that provided nexihility in 

tmnsitioning to the 2008 ozone standard. and appears to have invalidated EPA's revocation of 

the I 997 standard. If the revocation of the 1997 standard is invalidated, the implications of this 

decision are even broader: it would mean that areas designated as nonattainment or maintenance 

for the 2008 standard must make conformity determinations for the 1997 standard, in addition to 

making conformity determmations for the stricter 2008 standard for the same pollutant. 

The practical effects of this decision on transportation agencies will be severe. As of february 

16,2018, air quality conformity requirements for the 1997 ozone standard have been re-imposed 

on dozens of areas around the country that have fully attained the stricter 2008 ozone standard, 

and possibly on dozens of additional areas that are in nonattainment or maintenance for the 2008 

~tandmd. The immediate re·imposition of conformity requirements will prevent States and 

metropolitan planning organizations (MPOs) from appro\ling transportation plans and 

transportation improvement programs (TIPs) until the necessary air quality analysis and 

conformity determinations can be completed. Without an approved plan and TIP, the flow of 

federal funds for highway and transit projects in many areas will be halted. 

Moreover, the invalidation of EPA's 2015 rule potentially calls into question the validity of 

existing every plan and TIP approvals made in reliance on that rule. MPOs across the country 

have approved plans and TIPs since March 2015 without making conformity determinations with 

respect to the revoked 1997 ozone standard. If EPA were to conclude that those previous plan 

and TIP approvals are now invalid, given the lack of a conformity determination for the 1997 

standard. the effects of this decision would be even more immediate and far-reaching. potentially 

including a halt to ongoing construction projects. 

As an indication of the potential magnitude of the problem. there were 35 nonattainmcnt areas 

and 80 milintcnance areas for the 1997 standard at the time the 1997 standard wa., revoked. 

These 115 areas are located in 32 states and 434 counties-' The immediate re-imposition of 

conformity requirements for the 1997 standard could disrupt transportation projects in all of 

those counties. In Atlanta alone, the MPO has approximately $1.5 hill ion of projects in its TIP; 

in Houston, the MPO has approximately $4.37 billion of projects in is TIP; in Hampton Roads, 

Virginia, the T!P includes $4.89 billion of projects. The re-imposition of the 1997 standard 

threatens the ability of these and other MPOs to continue moving forward with billions of dollars 

in projects. 

To avoid immediate and far-reaching disruption to transportation projects. it is critical to seek 

every available means to obtain relief from this court decision. \Vc therefore request that EPA 

tile a petition for rehearing in the D.C Circuit and seek a stay of the court's decision within the 

45-day period allowed for such a petition (by April 2, 2018). If EPA tiles a petition for 

rehearing, our organizations intend to seek the court's permission tO file an amicus hrief in 

support of the rehearing request. 

2 

ADD-72 
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In addition, we request that EPA issue interim guidance as soon as possible regarding 

implementation of the court decision, and that any such guidance provide maximum flexibility 

and minimize disruption to ongomg projects. Specifically, we ask EPA to confirm that: 

In nonattainment or maintenance areas where the 1997 ozone standard was revoked and 

no other conformity determinations for other pollutants or standards were required. all 

existing transportation plans. TIPs and projects are valid for twelve months from the date 

of the Court decision; at the end of the twelve-month period. a conformity determination 

for the 1997 ozone standard would be required. 

In areas where the 1997 oz.one standanl was revoked and conformity requirements for 

other pollutants or standards apply, all currently approved conformity determinations are 

valid uniil the next required conformity determination is mtlde in each such 

nonattainment or maintenance area. At the time of the next reguired determination, the 

nonattainment or maintenance area would meet the conformity requirements for the !997 

ozone standard and any other pollutanls or standards for which conformity is required. 

While not a complete solution. such guidance may provide some relief from the regulatory 

burdens and project delays caused by this decision" 

We also note that this court decision highlights the need for a permanent legislative solution to 

resolve the uncertainty about what the Clean Air Act requires when EPA issues a new, stricter 

NAAQS to replace a previous one forthe same pollutant. In its recent infrastructure reform 

proposal, the White House• spccitlcaUy recommended "[a]mending the Clean Air Act to clarify 

that conformity requirements apply only to the latest NAAQS for the same pollutant."' We 

strongly support this recommendation for legislative change. 

We appreciate your attention to this urgent request. We would welcome the opportunity to meet 

with you •nd your sl<tff to discuss these issue,. Should you have any questions, please contact: 

Melissa Savage from AASHTO at (202) 624-3638, or Bill Keyrouze from AMPO at (202) 624-

3683. 

Sinc~rely. 

~,W Executive Director 

AASHTO 

DeLania Hardy 

Executive Director 

AMPO 

1 "~gJslatJ\It: Outhnc fnr Rebwh.hng Infraslrucmre 1n America." !Feh !2, 2018), p. 44, 

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cc: 

Brandyc Hendrickson, Acting Administrator, Federal Highway Administration, U.S. Department 

of Transponation 

K. Jane Williams, Acting Administrator, Federal Transit Administration, U.S. Dcparlmcnt of 

Transportation 

Jeffrey Wood, Acting Assistant Attorney General, Environment and Natural Resources Division, 

U.S. Department of Justice 

D.J. Gribbin, Special Assistant to the President for Infrastructure, The White House 

Alex Herrgott. Associate Director for Infrastructure, Council for Environmental Quality, The 

White House 

i\DD-74 
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ull 

Exhibit 3 

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federal Highway 

Admlnlsttct!on 

FMerol Trandt 

Administration 

Subj~ct: 

From: 

Interim Guidance on Confonnity 

~~~~~mcnts for the 1997 Ozon~ ' II 

Walter C. Waidclich,Jr.(J r(J;v!f'' 

FIIWA Executive Director·· IIOA-3 

Matthew J. Welbes fh;)tkJ}W 

FTA Executive Director TOl\.c3 

Oat~: April23, 2018 

In Reply Refer To: 

l!CC-30 

TCC-Helen Scra~sio 

To: HIW A Division Administrators and 

FlA Regional Administrators 

This guidance provides important infonnation regarding tmnsportation conf(>nnity 

requirements for certain pending planning and project development actions in programs 

administered by the federal Highway Administration (FHWA) and the Federal Transit 

Administration (FTA). The U.S. Court of Appeals for the D.C. Circuit recently issued a 

decision in South Coast Air Quality Management District v. EPA, No. 15-1 1 15, which 

struck down portions of the 2008 Ozone NAAQS SIP Requirements Rule concerning the 

ozone National Ambient Air Quality Standards (NAAQS). These portions of the 2008 

Ozone NAAQS SIP Requirements Rule addressed implementation requirements for the 

2008 ozone NAAQS as well as the anti-backsliding requirements associated with the 

revocation of the 1997 ozone NAAQS. The impact of the decision addresses two groups 

of ozone areas described in the decision: 

Area~ that were maintenance areas for the 1997 ozone NAAQS at the time of 

revocation and are designated as attainment for the 2008 Ozone NAAQS. These 

areas have not been required to make transportation contonnity determinations for 

any ozone NAAQS since the 1997 ozone NAAQS were revoked in April 2015 by 

EPA's Rule. 

Areas that were designated as nonattainment lilT the 1997 ozone NAAQS at the 

time of revocation and are designated as attainment for the 2008 Ozone N AAQS. 

These areas have not been required to make transportation confonnity 

determinations tor any ozone NAAQS since the 1997 ozone NAAQS were 

revoked in April2015 by EPA's Rule. 

Based on the inf(lrmation in EPA's Grcenbook, 1 we have identified 82 such areas 

encompassing as many as 228 counties in 24 States that arc potentially all'ccted by the 

1 https://www.epa.gov/green-book/green~book-8~hour-ozone-1997-area-information-naaqs-revoked 

:\DD-76 
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i l 

Court's decision. 2 Please refer to 40 CFR Part 81 and/or EPA's Green book for a full 

description and maps of these 1997 ozone areas. 

ot 

While we are waiting for guidance from EPA clarifying the possible impacts. all routine 

planning and project development actions may proceed throughout the country, except 

for the following actions within the identified areas that should he considered "on·ho/d" 

for now: 

New Metropolitan Long Range Plan and Transportation Improvement Programs 

(TIP), updates and amendments that include the addition of a project that is not 

exempt from transportation conformity may not proceed until transportation 

conformity with the 1997 ozone NAAQS is determined. Exempt projects are listed 

in 40 CFR 93.126 and 93.127. Admini.wrative modifications to Metropolitan Plans 

and Til's may proceed because, by definition in 23 CFR 450.104. those actions do 

not rt!quire a conformity determination. 

Statewide Transportation Improvement Program (STI!') approvals and 

amendments that include TIPs or non-exempt projects from the 82 identitled areas 

may not proceed, unless the TIP or project is determined to conform with the 1997 

ozone NAAQS or is limited to projects that are exempt from transportation 

conf{lrmity. Exempt projects are listed in 40 CFR 93.126 and 93.127. Partial STIP 

approvals, i.e., those limited to other areas of the state may proceed as described 

in 23 CFR 450.220(b)(l)(iii). 

Within the 82 identilled areas. NEPA approvals for FHWA/FTA projects (40 CFR 

93.101) may not proceed unless the existing Metropolitan Plan and TH' include 

the project. For projects that already completed N EPA, there is no need to delay 

further action, including: grant obligations; approvals of plans, specifications and 

estimates; and authorizations to begin construction. 

ff your office receives questions from a state or local transportation partner related to the 

impacts of this court decision on proposed planning actions or project approvals beyond 

what is described above, the most appropriate response is that FHWA and FTA, in 

coordination with OST and EPA, are reviewing the decision and evaluating next steps. 

and that we will provide updates as soon as possible. You should not speculate regarding 

the next steps that may be under review. 

For technical assistance, please contact at FHWA Cecilia Ho (202-366-9862), Karen 

Perritt (202-366-9066) or David Kall (202-366-6276), and at FTA Dwayne Weeks (202-

493-0316) or Megan Blum (202-366-0463). You may also contact Gloria Shepherd, 

Associate Administrator for the I'HWA's Office of Planning. Environment and Realty 

(202-366-0116), or Sherry Riklin, Acting Associate Administrator for FI'A's Office of 

Planning and Environment (202-366-5407) with any questions. 

Thank you for your immediate attention to this guidance. 

1 The 82 areas are set forth fn the tables below. We have rectuested confirmation of the affected counties and 

States from EPA and are awaiting its response. 

ADD-77 
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1997 Ozone Areas Not Covered in Full by tbe 2008 Ozone Standard, 

by State (24) and 1997 Ozone Area Name (82) 

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'I 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

SIERRA CLUB, eta/., 

Petitioners, 

No. 15-1123 

v. 

UNITED STATES DECLARATION OF 

ENVIRONMENTAL PROTECTION MATTHEW J. WELBES 

AGENCY, ET AL., 

Respondents 

I, Matthew J. Welbes, hereby declare: 

1. 1 am the Executive Director of the Federal Transit Administration (FTA), an 

operating administration of the U.S. Department ofTransportation (DOT). I 

have served in this capacity since 2008. As Executive Director, I direct the 

daily operations of the agency in support of public transportation services in 

communities across the United States, including providing local public 

transit systems with federal funding from FT A consistent with all the 

statutory and regulatory prerequisites to the award of funding. FTA currently 

has an annual budget of over $13 billion. 

2. With some limited exceptions, transportation conformity applies to 

metropolitan and statewide transportation planning and projects funded by 

FTA and the Federal Highway Administration (FHWA), another operating 

administration of DOT, in nonattainment and maintenance areas for 

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transportation-related pollutants. FT A and FHWA must make transportation 

conformity determinations on metropolitan long-range plans, transportation 

improvement programs (TIPs), and non-exempt projects prior to accepting, 

approving or funding these transportation activities. 42 U.S.C. § 7506(c)(2). 

3. The recent decision by the Court in this case has potential impacts to the 

FTA process for approvals and award of funds. Section 176(c) of the Clean 

Air Act (CAA) establishes conformity requirements for metropolitan 

transportation plans, TIPs, and projects in areas designated as nonattainment 

or maintenance. !d.§ 7506(c). Section 176(c)(2)(B) ofthe CAA 

establishes requirements for timely implementation of transportation control 

measures that are contained in a TIP and are funded or approved by FT A or 

FHW A. !d. 42 U.S.C. § 7506(c)(2)(B). 23 U.S.C. § 109G) establishes 

requirements to ensure that transportation project development is consistent 

with approved plans for air quality. 

4. The CAA requires that each State environmental agency develop a plan 

called a State Implementation Plan (SIP) that shows how the State will 

implement measures designed to improve air quality enough to meet 

National Ambient Air Quality Standards, 42 U.S.C. § 7407. The 

transportation conformity process attempts to ensure that metropolitan 

transportation plans (20-year planning horizon), TIPs, and projects are 

consistent with meeting air quality goals in order to be eligible for federal 

funding and approval. Whenever a metropolitan transportation plan or TIP is 

updated or amended, unless the amendment only adds or deletes projects 

that are exempt from transportation conformity such as safety related 

projects, the Metropolitan Planning Organization (MPO) must comply with 

DECL. OF WELBES 

No. 15-1123 

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the conformity requirements. 1 

5. FTA and FHWAjointly, in consultation with Environmental Protection 

Agency (EPA), make the determination ofwhether or not a metropolitan 

transportation plan and TIP is in conformance with the SIP for air quality. 

A project needs to be in an approved TIP before it can be added to a 

Statewide Transportation Improvement Program (STIP). The STIP is then 

forwarded to FT AIFHWA for joint approval. A project must be in an 

approved STIP for the appropriate phase of project development before the 

National Environmental Policy Act (NEPA) process can be completed. A 

NEPA determination is a mandatory precondition to award of either FTA or 

FHWA funding. 

6. '!be Court's decision potentially impacts FT A and FHWA projects in 

various stages of funding, as well as projects that are in various stages of the 

planning process. Together witl1 EPA, FT A and FHWA have identified 82 

impacted areas of the country, encompassing as many as 228 counties in 24 

States, that are potentially affected by the Court's decision. Specifically, it 

has the potential to impact projects in the following categories: 

a. Projects that do not yet have a conformity determination; and 

b. Projects that are in a TIP and have been added to a STIP, but the STIP has 

not yet been approved. 

7. The decision potentially could halt projects in each of these stages of the 

process if they are located in one of the 82 impacted areas: 

27 'See 40 CFR 93.104{b)(2) and (c){2). The projocts that are exempt from the transportation conformity 

28 requirement are set forth ln 40 CFR §§ 93.126 and 127. 

DECL. OF WELBES 

No. 15-1123 

J ~ of ADD-83 
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a. An "orphan"2 non-attainment area; 

b. An "orphan" maintenance area; 

c. A partial "orphan" non-attainment area; and 

d. A partial "orphan" maintenance area. 

7 8. Here is a chart that shows the number of areas in each category: 

8 

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!6 

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Type of Area 

Partial "Orph3I1" Maintenance 

Areas 

Partial "Orphan" 

Nonattainment Areas 

"Orphan" Nonattainment Areas 

Total 

Number of 1997 Ozone Areas 

6 

9. FTA must award most Federal funds within a specific period of time 

prescribed by statute. See, e.g. 49 U.S.C. § 5309(n)(l); ld. § 5336(g). All of 

the program funds apport.ioned or awarded by FTA have an administrative 

period for obligation of six years or less. Any apportioned or awarded funds 

that remain unobligated at the end of that period will revert to FTA for 

redistribution in the following year and the grantee will not have another 

opportunity to utilize those funds. If the funds are not awarded by the statutory 

deadline, then those funds lapse and the project sponsor no longer has the 

2 The term "orphan" is not a transportation term, but is used ln the litigation. 

DECL. OF WELBES 

No. 15-1123 

ADD-84 

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JF 

ability to receive those funds. If there is no relief from the immediate 

2 application ofthe Court's decision, tens of millions ofFTA funds could 

3 potentially lapse in approximately five months, at the end of Fiscal Year 2018. 

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I 0. Additionally, for the projects that are awaiting STIP approval and may now 

need to conduct new conformity determinations, the funding delays and 

disruptions are likely to be significant and likely could take as long as a year or 

more. 3 If funds lapse, as a result of the delay, project sponsors will have no 

recourse. 

11. The potential hann from this decision to transportation projects in the 

impacted areas is extremely significant in scope and dollars. FTA has projects 

in the I997 "orphan" maintenance and non-attainment areas that have lapsing 

funds. In addition, those areas will not be able to advance new projects funded 

from DOT's discretionary funding programs, including the Better Utilizing 

Investments to Leverage Development (BUILD)4 Transportation program, or 

Section 5307, 5310, or 531I (of Title 49 ofthe U.S. Code) funds sub-allocated 

by State Departments of Transportation. FTA estimates that approximately 

$800 million in Section 5307 grant funds, which may not already be in 

approved ST!Ps, could potentially be impacted. Additionally, the impact as a 

result of the delay to conducting conformity determinations will delay 

metropolitan transportation plan, TIP and STIP approvals, which in tum will 

delay grant awards. 

26 3 See, Exhibit 2, Declaration of Walter C. Waidelich, Jr., Executive Director for the Federal Highway Administration, 

dated April 23, 2018, attached to Respondents' Petition for Panel Rehearing. 

27 

28 

4 This program replaces the Transportation Investment Generating Economic Recovery (TIGER) program. 

OECL. OF WELBES 

No. 15-ll23 

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Pursuant to 28 U.S.C. § 1746(2), I declare under penalty of perjury that the 

4 

foregoing is true and correct. 

Executed on _'1l_d. 3/1 IS' 

5 

6 ~J)(;uflJsD- MATIHE. WELBES 

7 Executive Director for 

8 Federal Transit Administration 

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DECL. OF WELBES 

No. 15-1123 

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