SIERRA CLUB

NATIONAL PARKS CONSERVATION ASSOCIATION

CITIZENS FOR DIXIE’S FUTURE

DEFEND OUR DESERT

FRIENDS OF GOLD BUTTE

GRAND CANYON TRUST

WESTERN RESOURCE ADVOCATES

VIA ELECTRONIC MAIL

August 22, 2011

Mr. Thomas Webb

U.S. Environmental Protection Agency, Region 9

Planning Office, Air Division

75 Hawthorne Street

San Francisco, CA 94105

Email: webb.thomas@epa.gov

RE: Approval and Promulgation of Air Quality Implementation Plans; State of

Nevada; Regional Haze State Implementation Plan (Docket ID No. EPA‐R09‐

OAR‐2011‐0130)

Dear Mr. Webb,

The undersigned organizations submit the following comments on the United States

Environmental Protection Agency’s (“EPA’s”) proposed approval of Nevada’s Regional Haze

SIP (“Proposed SIP”), as published in the Federal Register on June 22, 2011.  U.S. EPA [EPA–

R09–OAR–2011–0130, FRL–9320–5]; Proposed Rule: Approval and Promulgation of Air Quality

Implementation Plans; State of Nevada; Regional Haze State Implementation Plan (76 Fed Reg. 36450).  

On July 22, 2011, EPA extended the comment period on the Proposed SIP to August 22, 2011.  76

Fed. Reg. 43963.   These comments hereby incorporate the comments of our technical experts,

Bill Powers, P.E.,  Petra Pless, D.Env and Dr. Andrew Gray, which are being submitted along

with this letter.

The undersigned organizations represent a consortium of environmental groups with

thousands of members in the western United States.  These groups and their members include

hikers, road and mountain bikers, recreational fisherman, backcountry campers, National Park

Service and Forest Service staff, naturalists, biologists and others who enjoy and depend on the

Class I area airsheds and other environmental resources affected by EPA’s Proposed SIP.
2 

I. Background on Regional Haze

The requirements of the Clean Air Act

Congress declared as the national goal, the “prevention of any future, and the

remedying of any existing, impairment of visibility in the mandatory class I Federal areas which

impairment results from manmade air pollution.”  42 U.S.C. §7491(a)(1).  “Manmade air

pollution” is defined as “air pollution which results directly or indirectly from human

activities.”  42 U.S.C. §7491(g)(3).  Congress adopted the visibility protection program to protect

the “intrinsic beauty and historical and archeological treasures” of specific public lands.1  To

protect these treasures, the regional haze program establishes a regulatory floor and requires

states, tribes, and EPA (where no state or tribal implementation plan exists) to design and

implement programs at least as stringent as the national floor to curb haze‐causing emissions

located within their jurisdictions.  In order to meet this goal, the relevant entity is required to

design an implementation plan to reduce, and ultimately eliminate, haze from air pollution

sources that may reasonably be anticipated to cause or contribute to visibility impairment for

any protected area located within or beyond that state’s or tribe’s boundaries.  In creating and

implementing the plan, the implementing entity has an unparalleled opportunity to protect and

restore regional air quality by curbing visibility‐impairing emissions from some the nation’s

oldest and most polluting facilities.

More specifically, states and tribes are required to submit state implementation plans

(“SIPs”) or tribal implementation plans (“TIPs”) that “contain such...measures as may be

necessary to make reasonable progress toward meeting the national goal” if they host federally

protected areas or if the emissions of a facility located within a state “may be reasonably be

anticipated to cause or contribute to any impairment of visibility” for a protected area located

beyond their borders. 42 U.S.C. §7491(b)(2).

Each SIP/TIP must provide emission limits, schedules of compliance and other measures

as may be necessary to make reasonable progress towards meeting the national visibility goals.  

42 U.S.C. § 7491(b)(2).  Two of the most critical features of a SIP/TIP are requirements for (1) the

installation of Best Available Retrofit Technology (“BART”) for delineated major stationary

sources of air pollution and (2) a long‐term strategy for making reasonable progress towards the

national visibility goal.  42 U.S.C. § 7491(b)(2)(A) &(B).

Adopted in 1990, Section 169B of the Clean Air Act expresses a broadened concern with

deteriorating visibility, instructing EPA to research visibility impairment in certain national

parks and wilderness areas.  42 U.S.C. § 7492(a)(1).  In response to § 169B of the CAA, EPA

promulgated the Regional Haze Rule (Haze Rule), 40 C.F.R. §§ 51.308‐309, which sets out

requirements for SIPs/TIPs to achieve natural visibility conditions in the nation’s Class I areas

                                                     

1 See H.R. REP. NO. 95‐294, at 203–04 (1977).
3 

by 2064. 40 C.F.R. § 51.308(d).  The rule lays out two approaches to achieving this goal, outlined

in Sections 308 and 309.  Section 308 is a path for fulfilling obligations under the Haze Rule that

is available to all states and tribes; Section 309 is an alternative path open to a limited number of

states and tribes.

Section 308 describes the requirements imposed upon most states and tribes for the

development of regional haze plans, and includes, inter alia, the development of reasonable

progress goals towards the extinction of man‐made haze in Class I areas by 2064; calculations of

baseline and natural visibility conditions; a long‐term strategy for regional haze; monitoring

strategy; periodic reports and revisions; and determination of BART limits.  BART is defined as

an emission limitation that is:  

. . . based on the degree of reduction achievable through the application of the

best system of continuous emission reduction for each pollutant which is emitted

by an existing stationary facility.  The emission limitation must be established, on

a case‐by‐case basis, taking into consideration the technology available, the costs

of compliance, the energy and non‐air quality environmental impacts of

compliance, any pollution control equipment in use or in existence at the source,

the remaining useful life of the source, and the degree of improvement in

visibility which may reasonably be anticipated to result from the use of such

technology.

40 C.F.R. §51.301.  BART limits are required for major stationary sources that were in existence

on August 7, 1977 and began operating after August 7, 1962 and emit air pollutants that may

reasonably be anticipated to cause or contribute to any impairment of visibility in a Class I area.

42 U.S.C. § 7491(b)(2)(A).  The term “major stationary source” is defined as a source that has the

potential to emit 250 tons or more of any pollutant and falls within one of 26 categories of

industrial sources defined by the Act.  42 U.S.C. § 7491(g)(7).  A BART‐eligible source is one that

meets the above criteria and is responsible for an impact on visibility in a Class I area of 0.5

deciview or more.  40 C.F.R. Part 51, Appendix Y.  BART must be installed and operated no

later than five years after the SIP/TIP/FIP2 approval.  40 C.F.R.§51.302(c)(4)(iv).

EPA has adopted BART Guidelines establishing the methodology to be used for arriving

at BART determinations.  This methodology involves a 5‐step process.  The five steps for

determining BART are:

STEP 1 ‐‐ Identify All3 Available Retrofit Control Technologies,

                                                     

2 “Federal Implementation Plan”

3 In identifying ʺallʺ options, you must identify both the most stringent option and a reasonable

set of options for analysis that reflects a comprehensive list of available technologies.  It is not

necessary to list all permutations of available control levels that exist for a given technology –
4 

STEP 2 ‐‐ Eliminate Technically Infeasible Options,  

STEP 3 ‐‐ Evaluate Control Effectiveness of Remaining Control

Technologies,

STEP 4 ‐‐ Evaluate Impacts and Document the Results, and

STEP 5 ‐‐ Evaluate Visibility Impacts.

Section IV.D. of the BART Guidelines at 40 C.F.R. Part 51, Appendix Y.  Although it was subject

to a December 17, 2007 deadline, Nevada submitted its regional haze SIP to EPA on November

18, 2009.  

Visibility and regional haze impacts

Regional haze results from small particles in the atmosphere that impair a viewer’s

ability to see long distances, color, and geologic formations.  While some haze causing particles

result from natural processes, most result from anthropogenic sources of pollution.  Haze‐

forming pollutants, including sulfur dioxide (SO2), nitrogen oxides (NOx), particulate matter

(PM), volatile organic compounds (VOCs), sulfuric acid (H2SO4) and ammonia (NH3),

contribute directly to haze or form haze after breaking down in the atmosphere.  These air

pollutants contribute to the deterioration of air quality and reduced visibility in our national

parks and wilderness areas.  Visibility impairment is measured in deciviews (“dv”), which is a

measure of the perceptible change in visibility.  The higher a deciview value is, the worse the

visibility impairment. Emissions from coal plants, such as the Reid Garder Generating Station

(“RGGS”) can travel long distances in the atmosphere and contribute to interstate visibility

impairment in national parks beyond the borders of state boundaries.

As noted by the Western Regional Air Partnership, “seventy five percent of the nation’s

Class I areas are in the West.  Today, the average visual range in Western national parks and

other Class I areas is about one‐half to two‐thirds of what would exist without human‐caused

impairment. This haze is only one of the effects of air pollution in the West.”4

Public health impacts

The same pollutants that contribute to visibility impairment also harm public health.  

The fine particulates that cause regional haze, PM2.5, are a major public health concern because

they can be inhaled deep into the lungs.  Fine particulates can cause decreased lung function,

aggravated asthma, and premature death in people with heart or lung disease.  NOx and VOCs

can also be precursors to ground level ozone, or smog.

                                                                                                                                                                           

the list is complete if it includes the maximum level of control each technology is capable of

achieving.

4 http://www.wrapair.org/forums/cc/projects/handouts/0612_WRAP_Flyer.pdf
5 

According to EPA, the total annual cost of implementing the Regional Haze Rule will

range from 1.4 – 1.5 billion dollars.5  However, based on the attendant reductions in air

pollution, EPA determined that in 2015, enforcement of the Regional Haze Rule will provide

health benefits valued at $8.4 – $9.8 billion annually – preventing 1,600 premature deaths, 2,200

non‐fatal heart attacks, 960 hospital admissions, and over 1 million lost school and work days

every year.6

While the Regional Haze Rule was designed to provide redress for visibility

impairment, the BART Guidelines expressly provide for the consideration of non‐air quality

environmental impacts.  This consideration includes the environmental impact on human

health.

Ecosystem impacts

Consideration of non‐air quality impacts also extends to impacts on wildlife and habitat

as well as natural and cultural heritage.  The same haze‐causing emissions also harm terrestrial

and aquatic plants and animals, soil health, and moving and stationary waterbodies – entire

ecosystems – by contributing to acid rain, ozone formation, and nitrogen deposition.  Nitrogen

deposition, caused by wet and dry deposition of nitrates derived from NOx emissions, causes

well known adverse impacts on ecological systems.

For example, scientific investigations have already demonstrated that nitrogen is

saturating the soil, plants and water of Rocky Mountain National Park at levels at least twice

the “critical load” the ecosystem can tolerate.  According to EPA, “[a]cid rain causes

acidification of lakes and streams and contributes to the damage of trees at high elevations (for

example, red spruce trees above 2,000 feet) and many sensitive forest soils. In addition, acid rain

accelerates the decay of building materials and paints, including irreplaceable buildings,

statues, and sculptures that are part of our nationʹs cultural heritage.”  

Further, haze‐causing pollutants are precursors to ozone. Ground‐level ozone formation

impacts plants and ecosystems by: “interfering with the ability of sensitive plants to produce

and store food, making them more susceptible to certain diseases, insects, other pollutants,

competition and harsh weather; damaging the leaves of trees and other plants, negatively

impacting the appearance of urban vegetation, as well as vegetation in national parks and

recreation areas; and reducing forest growth and crop yields, potentially impacting species

diversity in ecosystems.”

                                                     

5 EPA, Fact Sheet, Final Regional Haze Regulations for Protection of Visibility in National Parks and

Wilderness Areas (June 2, 1999) at http://www.epa.gov/visibility/fs_2005_6_15.html

6 http://yosemite.epa.gov/opa/admpress.nsf/a4a961970f783d3a85257359003d480d/a7f12

fefcb64426885257022004fbd26!OpenDocument.
6 

Economic impacts

In rigorously addressing visibility and, more specifically, visibility‐causing pollutants,

western Class I areas stand to reap significant benefits and avoid serious consequences.  

Visibility causing pollutants have far‐reaching impacts on local economies, human health, and

the well‐being of waterways, soils, plants, and wildlife – in other words, an entire population

and ecosystems.  Decreasing these pollutants will benefit all of these important areas of concern;

failing to do so will cause or continue adverse impacts.

Tourism is critical to the economy of the western states.  The national parks and

landmarks potentially impacted by the Proposed SIP include Grand Canyon, Zion, and Joshua

Tree.  The towns surrounding these parks, monuments and landmarks are economically

dependent on excellent air quality.  In 2009, these three parks alone were responsible for

hundreds of  jobs.7  Parks attract businesses and individuals to the local area, resulting in

economic growth in areas near parks that is an average of one percent per year greater than

statewide rates over the past three decades.8

National parks also generate more than four dollars in value to the public for every tax

dollar invested.9 Because of pollution, visitors to western parks now can only see around 60

miles away on bad days, where naturally they would be able to see double or triple that

distance.10  Studies have shown that visitors value clean air in our national parks, are able to tell

when it is hazy, and enjoy their visit less when haze is bad.  Moreover, visitors are willing to

alter their length of stay based on their perception of air quality.11  Shorter park visits, or none at

all, mean less time and money spent in gateway communities.  An additional economic

incentive behind protecting air quality is the necessary investment in pollution control

technologies as their installation is a job‐creating mechanism in itself.  Each installation creates

short‐term construction jobs as well as permanent operations and management positions.  Thus,

installation of additional and upgraded pollution controls will result in jobs and revenue for the

local workforce.

                                                     

7 National Park Visitor Spending and Payroll Impacts, 2008. Daniel J. Stynes, Michigan

State University, October 2009. (http://web4.msue.msu.edu/mgm2/parks/MGM2System2008.pdf)

8 Id.

9 Hardner and Gullison, “The U.S. National Park System, An Economic Asset at Risk” (November 2006)

[prepared for the National Parks Conservation

Association].http://www.npca.org/park_assets/NPCA_Economic_Significance_Report.pdf

10 Id.

11 http://cfpub.epa.gov/eroe/index.cfm?fuseaction=detail.viewInd&lv=list.listByAlpha&r=

231326&subtop=341
7 

II. The Proposed SIP Fails to Implement BART for the Reid Gardner Generating

Station

RGGS is a coal‐fueled, steam‐electric generating plant with four operating units.  The

first two nearly identical generating units went into service in 1965 and 1968.  A third similar

unit was added in 1976.  Each of these three units produces 100 megawatts with Foster Wheeler

boilers and GE turbine‐generators.  With a capacity of 257 megawatts, the fourth unit is the

plant’s largest.

Emissions from Nevada sources, including RGGS, are within the airshed of five prized

Western Class I national parks and wilderness areas spanning three states outside of Nevada:

Joshua Tree National Park in California, Grand Canyon National Park and Sycamore Canyon

Wilderness Area in Arizona, and Bryce Canyon and Zion national parks in Utah.  The

administrative record includes NV Energy’s 2009 BART analysis which finds impacts from

RGGS alone to cause visibility impairment at Grand Canyon NP and contributes to visibility

impairment at Joshua Tree and Zion national parks.  The power plant also sits directly adjacent

to the Moapa Band of Paiutes reservation.  EPA’s proposed BART determination for this facility

is not only significant from the perspective of visibility, but also from the perspective of public

health, especially for the Moapas, who bear the burden of the facility’s pollution, but do not

benefit from the facility’s power generation.  In this environmental and social justice context,

the fatal flaws in EPA’s analysis are of particular concern.  Those flaws include, among other

things, failure to require the “degree of reduction achievable through the application of the best

system of continuous emission reduction” for NOx, failure to consider readily‐available

technology, failure to accurately analyze the costs of compliance, improper analysis of the

energy and non‐air quality environmental impacts of compliance, failure to consider any

pollution control equipment in use or in existence at the source, failure to consider the

remaining useful life of the source, failure to require compliance as expeditiously as practicable,

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

anticipated to result from the use of such technology.

With respect to BART for RGGS, one of the Proposed SIP’s most pervasive defects is the

lack of internal consistency and factual support.  As explained by Drs. Pless and Gray and Mr.

Powers, and as described below, the administrative record is rife with contradictory facts and

evidentiary gaps.  As a result, many of the Proposed SIP’s ultimate findings, and consequently

its conclusion, lack a logical basis.  Just a few examples of the docket’s factual deficiencies are:

the failure to include the design parameters used to evaluate the BART controls, the failure to

include the underlying data and modeling files supporting the state’s modeling results,12 the

failure to include the equipment list and supporting costs underlying the cost analysis, and the

failure to include documentation to support its cost analysis.

                                                     

12 Because the federal docket for the Proposed SIP lacked the requisite data to support Nevada’s

modeling, Dr. Gray requested this information independently from the state.  After nearly six weeks, Dr.

Gray finally gained access to this supporting data, which was crucial to informed and meaningful

comment on the modeling that underlies the Proposed SIP’s findings.
8 

The Proposed SIP further fails to follow EPA’s BART Guidelines.  U.S. EPA: Regional Haze

Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations; Final Rule,

70 Fed. Reg. 39104 (July 6, 2005);  40 CFR Part 51, Appendix Y.  Although commenters,

including the National Park Service, raised this issue to the State of Nevada, and more recently

to EPA in their comments on the Proposed SIP,13 the Proposed SIP fails to cure this defect.  The

Proposed SIP finds that “BART determinations were conducted in a manner consistent with ...

the EPA’s BART Guidelines,”  76 Fed. Reg. 36462.  As explained by our experts in the attached

technical comments, this finding lacks a factual basis.  In fact, the Proposed SIP’s analysis

inexplicably and irrationally deviates from the BART Guidelines in many significant ways.  For

this reason, the Proposed SIP’s claim of compliance with those Guidelines is insupportable.  

Motor Vehicle Mfrs. Assʹn v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (holding that a rule

is “arbitrary and capricious” where the agency has considered impermissible factors, failed to

consider important aspects of the problem, offered an explanation for its decision that is

contrary to the record evidence, or is so irrational that it could not be attributed to a difference

in opinion or the result of agency expertise.)

A. The Proposed SIP Fails to Require BART for NOx  

To control RGGS’s NOx emissions, the Proposed SIP proposes emission limits of 0.20

pounds per million British thermal units (“lb/MMBtu”) for Units 1 and 2 and 0.28 lb/MMBtu for

Unit 3 based on a 12 month rolling average.  These emissions, which contemplate the use of

rotating opposed overfire air (“ROFA”) with Rotamix, do not represent BART for those units.  

Instead, as explained by Dr. Pless, BART for these units is an emission limit of 0.05 lb/MMBtu

on a 30‐day rolling average based on a boiler operating day.   

The Proposed SIP’s erroneous BART determination is based on a number of legal and

technical flaws.  Most importantly, the Proposed SIP fails to consider a NOx removal efficiency

of 90%, which represents “the most stringent emission control level,” that SCR by itself is

capable of achieving.  70 Fed. Reg. at 39166.  Dr. Pless bases her feasibility analysis on an SCR

control efficiency of 90% in addition to combustion controls (a combination of low‐NOx burners

and overfire air).  As explained in the attached report, modern SCRs are routinely designed and

operated to achieve 90% NOx control.  Based on this well‐accepted industry standard, SCR

control of at least 90% combined with low NOx burners and overfire air are BART.  70 Fed. Reg.

at 39165 (“In general, a commercially available control option will be presumed applicable if it

has been used on the same or a similar source type.”).

The lower 0.05 lb/MMbtu limit proposed by Dr. Pless is also consistent with EPA’s own

determinations elsewhere.  For example, the Texas Commission on Environmental Quality

                                                     

13 We hereby incorporate, by reference, the National Park Service’s comments on the Proposed SIP as well

as the agency’s comments to the State of Nevada on the Proposed SIP.  We further incorporate by

reference the environmental consortium’s 2009 comments to the State of Nevada on the Proposed SIP.
9 

found a NOx limit of 0.03 lb/MMBtu to be technically feasible.  70 Fed. Reg. at 39166 (Urging

consideration of “recent regulatory decisions... when identifying an emissions performance

level” that can be achieved by available pollution‐reduction methods.)  For the San Juan

Generating Station, which is subject to BART, EPA Region 6 proposed a NOx limit of 0.05

lbs/MMBbtu based on a 30‐day rolling average.  And, significantly, the Desert Rock final permit

imposed an even lower limit of 0.035 lbs/MMbtuBtu based on a 365‐day rolling average.  An

EPA‐issued permit containing a lower NOx limit creates a presumption of technical feasibility

for purposes of BART.  70 Fed. Reg. at 39165 (“[I]f there is a permit requiring the application of

a certain technology or emission limit to be achieved for such technology, this usually is

sufficient justification for you to assume the technical feasibility of that technology or emission

limit.”).  In light of the above, the Proposed SIP erroneously rejects SCR as a feasible control

option based on a fatally flawed cost analysis, as explained below.

When the most stringent emission control level is not chosen (as is the case here), the

BART Guidelines require “a showing of differences between the source and other sources that

have achieved more stringent emissions limits . . .”  70 Fed. Reg. at 39166.  The Proposed SIP

fails to even attempt to identify the unique characteristics of RGGS that prevent it from meeting

the same limits being achieved by other power plants.  Instead, it rejects the best system of

continuous NOx reduction based on a legally and factually flawed cost argument.  The

Proposed SIP is both legally and technically inadequate for this reason alone.

B. The Proposed SIP Overestimates the Cost of SCR

The Proposed SIP incorrectly rejects SCR for RGGS as too costly.  As explained in the

accompanying comments from Powers Engineering, this erroneous conclusion is based on a

flawed cost effectiveness analysis.  A foundational problem with the cost analysis is its lack of

evidentiary support in the administrative record.  It further fails to account for multiple unit

discounts, incorrectly includes allowance for funds during construction and owner’s costs,

incorrectly calculates capital recovery and improperly inflates costs using various contingencies

and surcharges.   

With respect to estimating the lifetime of SCR, the cost analysis incorrectly assumes a

lifetime of 20 years, even though the actual life of the technology is commonly understood to be

30 years.  The Proposed SIP’s shorter lifetime estimate is apparently based on a projected

shutdown date of 2023 for Units 1‐3.  Because this projection lacks any enforceable legal

commitment, it cannot be used to artificially inflate the cost of SCR in the Proposed SIP’s cost

analysis.  As clearly defined by the BART Guidelines, the “the remaining useful life” of a facility

is the difference between the date controls are installed and the date the facility permanently

ends its operations.  70 Fed. Reg. at 39169.  The Guidelines further explain that with respect to

the latter, “this date should be assured by a federally‐ or State‐enforceable restriction preventing

further operation.”  Id. (emphasis added).  Because RGGS is not subject to any enforceable

commitment to shutdown in 20 years, the Proposed SIP’s use of this assumption in its cost

analysis is contrary to law.
10 

Next, the Proposed SIP incorrectly concludes that a cost of $2,386 and $3,045 per ton of

NOx removed is not cost effective.  Putting aside that these costs are improperly inflated (as

discussed above), they nonetheless fall well within the average cost effectiveness range for

purposes of BART, as evidenced by BART determinations elsewhere in the country, including

Oregon, New York, Colorado, New Mexico, North Dakota, and Wisconsin as well as Region 9

in its proposed Four Corners Power Plant BART determination.  The Proposed SIP inexplicably

ignores consideration of the standard cost‐effectiveness methodology in favor of a “clear break”

cost theory that appears to be manufactured out of whole cloth.  Aside from being devoid of

any technical merit (as discussed in the accompanying Powers Engineering report), the

Proposed SIP’s “clear break” theory only considers incremental costs.  This approach violates

the BART Guidelines, which require consideration of both average and incremental costs.   

In fact, in 2002, EPA’s Environmental Appeals Board (“EAB”) roundly rejected a cost

analysis that failed to consider both average and incremental costs.  In so doing, the EAB stated

that the state offered “no explanation of how it considered average cost‐effectiveness. Therefore,

the Board concludes that the cost‐effectiveness analysis is incomplete and [the state] has failed

to provide an adequate explanation on the record of its decision to reject the top control

alternatives.”  In re General Motors Inc., Permit No. MI‐209‐00, 10 E.A.D. 360  (EAB 2002), 2002

WL 373982 (E.P.A.), 1.  Although this decision discusses cost effectiveness as it relates to Best

Available Control Technology (“BACT”) under the Clean Air Act’s Prevention of Significant

Deterioration provisions, its holding is equally applicable to BART cost‐effectiveness, which is

virtually identical to that for BACT.  In sum, the ʺclear breakʺ theory not only ignores one of the

two required prongs of a BART cost‐effectiveness evaluation (average cost), but also  a

misapplies  the other prong of the test (incremental cost).  For this reason, the Proposed SIP’s

cost effectiveness conclusion for SCR is “arbitrary and capricious.”

  

C. The Proposed SIP’s Emission Limits Are Unenforceable

Under the Clean Air Act, emission limits, including BART limits, must be met on a

continuous basis.  42 U.S.C. §7602(k).  The Act further requires practical enforceability of those

limits.  Consistent with this statutory mandate, the BART Guidelines state that “[t]o complete

the BART process, you must establish enforceable emission limits that reflect the BART

requirements and require compliance within a given period of time.”  70 Fed. Reg. at 39172.  

Practical enforceability means that the source must be able to show continuous compliance with

each limitation, which requires monitoring, recordkeeping, and reporting.  The BART

Guidelines further specify that, “emissions limits must be enforceable as a practical matter

(contain appropriate averaging times, compliance verification procedures and recordkeeping

requirements).”  The Proposed SIP does not require any monitoring, recordkeeping or

reporting.  It further fails to provide a technical or legal justification for disregarding the 30‐day

averaging period required by the BART Guidelines for electric generating units.  70 Fed. Reg. at

39172.  Thus, the Proposed SIP’s emission limits are not enforceable and do not constitute
11 

BART.  The proposal’s BART determination is “arbitrary and capricious” for this additional

reason.

D. The Proposed SIP’s Claim of Non‐Air Quality Environmental Impacts from

SCR Is Irrational and Lacks Evidentiary Support

In rejecting SCR, the Proposed SIP further claims that the ammonia needed to operate

SCR could carry non‐air quality environmental impacts.  These alleged impacts include the

salability and disposal of fly ash due to ammonia levels, creation of a visible stack plume,14 and

the transport of ammonia to the site in the event of an accidental release.  However, as

explained by Dr. Pless in her attached comments, the Proposed SIP’s selected technology

actually uses more ammonia than SCR.  Furthermore, the administrative record lacks

evidentiary support for these impacts.  For these reasons, the Proposed SIP’s conclusions with

respect to ammonia‐related impacts are irrational.

1. ROFA/Rotamix Has a Higher Ammonia Slip than SCR

From the perspective of non‐air quality impacts from ammonia, the Proposed SIP’s

selection of ROFA/Rotamix over SCR lacks a logical basis.  This is because the Proposed SIP’s

selected technology uses more ammonia than SCR.  As explained by Dr. Pless, SNCR, including

ROFA with Rotamix technology would permit at least twice as much ammonia emissions as

SCR technologies, and likely more, with the resulting environmental problems.  In other words,

the selected BART option, ROFA with Rotamix, would have more severe negative non‐air

quality environmental impacts associated with ammonia use as compared to the rejected SCR

control options.  Because it failed to “consider important aspects of the problem” and provided

an explanation for this issue that is “so irrational that it could not be attributed to difference in

opinion or result of agency expertise,” the Proposed SIP’s non‐air quality impact findings are

“arbitrary and capricious.”  Motor Vehicle Mfrs. Assʹn v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29

(1983).

2. The Proposed SIP’s Discussion of Ammonia‐Based Impacts Lacks Legal

and Evidentiary Support

The Proposed SIP’s discussion of non‐air quality related impacts does not pass legal

muster.  The BART Guidelines provide the following framework for a legally‐supportable

discussion of non‐air quality impacts:  

In general, the analysis of impacts starts with the identification and

quantification of the solid, liquid, and gaseous discharges from the control device

                                                     

14  Although a visible plume may also result from excessive conversion of sulfur dioxide to sulfur trioxide,

as explained by Dr. Pless, this alleged impact also lacks evidentiary support in the record.  In fact, this

phenomenon has not been reported for facilities firing Western bituminous coals, such as RGGS.
12 

or devices under review.  Initially, you should perform a qualitative or semi‐

quantitative screening to narrow the analysis to discharges with potential for

causing adverse environmental effects.  Next, you should assess the mass and

composition of any such discharges and quantify them to the extent possible,

based on readily available information.  You should also assemble pertinent

information about the public or environmental consequences of releasing these

materials.

The Proposed SIP’s bare and conclusory statements with respect to non‐air quality

impacts from ammonia lack the above‐described analytical rigor.  Specifically, the Proposed SIP

does not quantify potential ammonia (the presumed basis for the claimed ammonia‐related

impacts) nor does it assemble pertinent information to support its claims.  Id.

Furthermore, non‐air quality impacts only “become important . . . when the incremental

emissions reductions potential of the more stringent control is only marginally greater than the

next most effective option.”  Id.  Here, as explained by Dr. Pless, the incremental emissions

reduction potential of the top control options, i.e., the two SCR technology combinations, is

considerably greater than the next‐most effective option, i.e., ROFA with Rotamix, which was

selected as BART.  Specifically, according to Nevada’s own analysis, NOx control efficiencies for

the SCR technologies range from 78.2% to 82.2% for the three units, whereas control efficiencies

for ROFA with Rotamix are expected to be only 38.3% to 59.0%.  Given the high degree of

variability as well as the dramatic difference in control efficiencies between the two

technologies, the non‐air quality impacts associated with SCR should not be used as a basis to

eliminate this technology in the BART determination for RGGS.  Instead, they lend support to

requiring SCR as the appropriate control option for BART.

Finally, because SCR has been required elsewhere, the Proposed SIP carries the additional

burden of providing the unique circumstances surrounding RGGS that distinguish it from other

sources already using this technology.15  70 Fed. Reg. at 39169 (“Where you or the source owner

can show that unusual circumstances at the proposed facility create greater problems than

experienced elsewhere, this may provide a basis for the elimination of that control alternative as

BART.”)  The Proposed SIP fails to identify any unusual circumstances with respect to RGGS

that distinguish its ammonia‐related impacts from other sources where SCR has been required.  

For these reasons, the Proposed SIP’s non‐air quality environmental impact findings are

“arbitrary and capricious.”

                                                     

15 “However, the fact that a control device creates liquid and solid waste that must be disposed of does

not necessarily argue against selection of that technology as BART, particularly if the control device has

been applied to similar facilities elsewhere and the solid or liquid waste is similar to those other

applications.” 70 Fed. Reg. at 39169.
13 

E. The Proposed SIP’s Emission Limits Do Not Represent the Best Achievable

Emission Rate for the Selected Control Technology

The Proposed SIP proposes NOx emission limits of 0.20 lb/MMBtu for Units 1 and 2 and

0.28 lb/MMBtu for Unit 3.  These emission rates purport to be based on control efficiencies for

ROFA/Rotomix, however, as explained by Dr. Pless, not only do these rates not represent the

best achievable overall, they do not even represent the best achievable rate for this technology.  

The BART Guidelines state that “it is important, however, that in analyzing the technology you

take into account the most stringent emission control level that the technology is capable of

achieving.”  70 Fed. Reg. at 39166.  As explained by Dr. Pless, the Proposed SIP arrived at these

limits by calculating values that are specific to the selected baseline year rather than being an

intrinsic numeric parameter of the ROFA with Rotamix control technology.  This approach has

no basis in law or science.  Moreover, these emissions limits are inexplicably higher than the

vendor‐guaranteed NOx limits of 0.16 lb/MMBtu for Units 1 and 2 and 0.20 lb/MMBtu for

Unit 3.  The vendor‐guaranteed limits are significant, because, as explained by the BART

Guidelines, “[v]endor guarantees may provide an indication of ... the technical feasibility of a

control technique . . . .”  70 Fed. Reg. 39165.   

Adding to the confusion, the Proposed SIP proposes a considerably higher NOx

emission limit as BART for Unit 3 (0.28 lb/MMBtu) than for Units 1 and 2 (0.20 lb/MMBtu).  The

Proposed SIP provides no explanation for choosing a higher NOx limit for the newer Unit 3

(1976) than for Units 1 and 2 (1965 and 1968, respectively).  This discrepancy is particularly

perplexing given that all three units are the same size (100 MW) and would be using on the

same BART control technology, i.e., ROFA with Rotamix, under EPA’s proposal.  Putting aside

its improper rejection of SCR as BART (discussed above), the Proposed SIP’s failure to apply the

best achievable emission rate even for its selected technology (ROFA/Rotomix) constitutes an

independent basis for rejecting the Proposed SIP.

III. The Proposed SIP Fails to Develop an Adequate Long‐Term Strategy for Regional

Haze

As explained by EPA’s RPG Guidance, “The long‐term strategy is the compilation of

‘enforceable emissions limitations, compliance schedules, and other measures as necessary to

achieve the [RPGs],’ and is the means through which the state ensures that its RPG will be met.”  

Id. at1‐4; 40 CFR § 51.308(d)(3).  The Proposed SIP’s long‐term strategy does not comply with

federal regional haze requirements because it does not contain evidence showing full and

effective consultation with other states, does not “ensure that it has included all measures

needed to achieve its apportionment of emission reduction obligations agreed upon” through

that consultation process and further fails to “document the technical basis, including modeling,

monitoring and emissions information,” on which it relies to determine its apportionment of

emission reduction obligations agreed upon through that process.  40 C.F.R § 51.308(d)(3)(i)‐

(iii).
14 

A. The Proposed SIP Does Not Impose Adequate Emissions Limitations to Meet

Reasonable Progress Goals

As discussed above, the Proposed SIP fails to require BART for RGGS.  This is

particularly problematic from the perspective of reasonable progress because according to

regional modeling that is based on the 2018 WRAP inventory projections, additional emission

reductions are needed to achieve the Uniform Rate of Progress (“URP”) goals and to achieve the

“glide path” for visibility improvement to natural conditions by 2064 at Grand Canyon, Zion,

and Bryce Canyon National Parks.

With respect to long‐term strategy, Nevada’s own modeling shows that implementation

of the Proposed SIP’s emission controls for RGGS will have only minimal impact on reducing

visibility impacts.  We question whether the modeled inventory accurately reflects the post‐

BART emissions at RGGS, and likewise question whether  the modeling results reported in the

SIP are correct.  We further question whether Nevada accurately documented the changes in

visibility attributable to the proposed BART emission controls.   

Furthermore, according to Nevada’s modeling, the “post‐BART” impact of RGGS would

still be at or above the “cause or contribute” threshold under the federal visibility rules at Grand

Canyon (98th percentile extinction at or above 0.5 dv).  Assuming its modeling results for RGGS

are accurate (which may not be the case based on the above analysis), Nevada’s own modeling

results clearly demonstrate the need for a more stringent BART determination.  The modeling

results summarized in Nevada’s draft regional haze SIP suggest that the proposed BART

emission limits for RGGS fail to provide any significant visibility improvement at Class I areas

outside Nevada.  Nevada should select BART technologies and associated emission limits that

significantly reduce the impact of RGGS’ emissions on visibility degradation at the Grand

Canyon and other Class I areas and properly document the actual effect of these changes on

visibility.   

Nevada’s modeling also underestimates the visibility improvement to Grand Canyon

resulting from SCR at RGGS.  According to Dr. Gray in his accompanying comments, SCR

would reduce the visibility impact of RGGS’s three units below the threshold level at all Class I

areas.  In addition, the number of days each year in which delta dv exceeds 0.5 would be almost

completely eliminated in these areas.  Furthermore, the visibility impact in Grand Canyon NP

from all three RGGS units would reduce the 98th percentile delta dv in the Grand Canyon by

1.79, which would result in a noticeable change to the majority of park visitors.  The Proposed

SIP fails to account for this expected visibility improvement from all three units combined.

The Proposed SIP rejected SCR as BART for RGGS based, in part, on cost considerations.  

As addressed elsewhere in these comments, the Proposed SIP’s cost analysis for SCR as applied

to RGGS is fundamentally flawed.  With respect to the SCR cost analysis as it relates to out‐of‐

state Class I areas, however, we further note that the Proposed SIP fails to evaluate cumulative

visibility by using a supplementary dollar per deciview calculation to complement the dollar
15 

per ton metric.  As the BART program has evolved, the Federal Land Managers, as well as some

states including Alaska, Massachusetts, North Dakota, Oregon and South Dakota, have

developed and applied the dollars per deciview approach since 2006.  This approach

incorporates an assessment of visibility improvements.  When properly and rationally applied,

it assists states and EPA in ascribing a dollar value to visibility improvement.

Nevada’s post‐BART visibility modeling shows that emissions from RGGS would

continue to “cause or contribute” to visibility impairment at nearby Class I areas, including

Joshua Tree, Zion and Grand Canyon National Parks.  Even based on Nevada’s own modeling,

EPA should require more stringent BART emission levels that further reduce or eliminate

visibility impairment caused by these sources and even consider emission reductions that are

“beyond BART” (such as securing additional reductions at RGGS’s Unit 4) as other states have

done when BART has provided insufficient emission reductions to achieve “reasonable further

progress” toward the national visibility goal.

B. The Proposed SIP Fails to Demonstrate Reasonable Progress for Class I Areas

Outside the State of Nevada

As EPA’s own regulations make clear, a central goal of the Clean Air Act’s regional haze

program is “to require States to develop programs to assure reasonable progress toward

meeting the national goal of preventing any future, and remedying any existing, impairment of

visibility in mandatory Class I Federal areas which impairment results from manmade air

pollution.”  40 C.F.R. 51.300 (emphasis added).  As a “core requirement” in furtherance of this

goal, each state must address regional haze in “each mandatory Class I Federal area located

within the State and in each mandatory Class I Federal area located outside the State which

may be affected by emissions from within the State.” 40 C.F.R. 51.308(d) (emphasis added).  A

key piece of a state’s long‐term strategy includes full and effective consultation with other states

“to develop coordinated emission management strategies.”  40 CFR  § 51.308(d)(3)(i).

As a threshold matter, it is undisputed that Nevada contributes to visibility impacts to

out‐of‐state Class I areas.  Dr. Gray’s analysis clearly confirms these impacts.  Although the

Proposed SIP implies that Nevada consulted with the Western Regional Air Partnership

(“WRAP”) in determining its apportionment of visibility impacts to Class I areas outside of the

State of Nevada, the administrative record does not support the legally‐required level of

consultation.  To the contrary, the Federal Register notice states that that “Nevada is not a

formal member of WRAP....”  76 Fed. Reg. at 36452.  And, despite its claim that “State

representatives participated fully in the WRAP,”16 there is no evidence supporting any “agreed

upon” apportionment of Nevada’s out‐of‐state visibility obligations among the WRAP

members, as required by law.  40 C.F.R. §51.308(d)(3)(ii).  The Proposed SIP thus fails to show

adequate consultation.

                                                     

16 Id.
16 

C. The SIP Fails to Provide the Legally‐Required Technical Basis to Support

Reasonable Progress in Out‐of‐State Class I Areas

Because WRAP did not apportion any out‐of‐state contribution to Nevada, there are no

“technical analyses developed by” WRAP and “approved by all state participants” to support

that apportionment.  Id. at §51.308(d)(3)(iii).  Although Nevada claims to have relied on WRAP’s

technical analysis, there is no technical basis to support the Proposed SIP’s apportionment of

zero to Nevada.

WRAP’s failure to apportion Nevada’s contribution does not save Nevada from its

independent obligation to require adequate BART determinations and a long‐term strategy to

reduce haze‐causing pollutants in out‐of‐state Class I areas from its pollution sources.  40 CFR

§51.308 (d)(3)(ii)‐(iv).  “Where other States cause or contribute to impairment in a mandatory

Class I Federal area, the State must demonstrate that it has included in its implementation plan

all measures necessary to obtain its share of the emission reductions needed to meet the

progress goal for the area.”  Id. at §51.308(d)(3)(ii).  Because Nevada failed to conduct any

independent analysis, it further failed to “document the technical basis, including modeling,

monitoring, and emissions information” on which it relied to “to determine its apportionment

of emission reduction obligations necessary for achieving reasonable progress in each

mandatory Class I area it affects.  Id. at §51.308(d)(3)(iii).

Given that source emissions within Nevada are shown to “cause and contribute” to

visibility impairment at Class I areas outside of the state after 2018, Nevada must revisit its draft

regional haze SIP and craft an emissions reduction plan that helps achieve the Uniform Rate of

Progress (“URP”) goals for Class I areas outside of Nevada.  Achieving the national visibility

goal and meeting the 2018 URP milestones will require aggressive actions from all states in the

region, including Nevada.  While Nevada has established BART emission limits in the draft SIP

that provide a degree of visibility improvement,  even greater improvement is warranted.  The

Proposed SIP allows Nevada’s emissions sources to continue to “cause or contribute” to

visibility impairment; the better control option, SCR, would substantially reduce visibility

impairment.  These findings demonstrate that the Proposed SIP fails to meet its primary

objective of providing the initial step toward meeting the national visibility goal.  It is therefore

incumbent on EPA to issue a Federal Implementation Plan in place of the inadequate Proposed

SIP.

D. The Proposed SIP Fails to Address Cumulative Impact of RGGS on Out‐of‐State

Class I Areas

Nevada’s modeling found that, on a unit‐by‐unit basis, the 98th percentile extinction

from Reid Gardner was less than 0.5 dv at Zion and Bryce Canyon.  On this basis, the Proposed

SIP concluded that the individual units do not “cause or contribute” to visibility impairment at

either Zion or Bryce Canyon, even under the baseline condition.  However, the modeling results

as presented in the Proposed SIP do not provide for a determination of the cumulative impact
17 

from Reid Gardner Units 1, 2, and 3.  Such a cumulative impact assessment is not only

warranted, but required by the BART guidelines.  70 Fed. Reg. at 39105, 39107.  The cumulative

impact of a source’s emissions on visibility as well as the cumulative benefit of emission

reductions must be considered as part of the fifth step in the BART analysis.   

When Dr. Gray corrected this omission and conducted the required cumulative impact

analysis in his attached report, he found that SCR would reduce the cumulative delta dv impact

from 3.96 (for all three units) to 0.83.  This would result in a cumulative visibility improvement

of 3.12 dv within the five Class I areas (Grand Canyon, Zion, Bryce, Sycamore, Joshua Tree).

Particularly in light of Dr. Gray’s cumulative impact modeling results for SCR at RGGS,

we support the National Park Service’s reasoning as articulated in the agency’s comments on

Salt River Project’s proposed BART determination for Navajo Generating Station, July 24, 2009:

...[I]t is appropriate to consider both the degree of visibility improvement in a

given Class I area as well as the cumulative effects of improving visibility across

all of the Class I areas affected.  It simply does not make sense to use the same

metric to evaluate the effects of reducing emissions from a BART source that

impacts only the one Class I area as for a BART source that impacts multiple

Class I areas.  And, it does not make sense to evaluate impacts at one Class I area,

while ignoring others that are similarly significantly impaired.  If we look at only

the most‐impacted Class I area, we ignore that the other Class I areas are all

suffering from impairment to visibility “caused” by the BART source.  It follows

that, if emissions from the BART source are reduced, the benefits will be spread

well beyond only the most impacted Class I area, and this must be accounted for.

By failing to account for RGGS’s current cumulative impairment to Class I areas, as well

as the future cumulative visibility benefit to those same areas from BART, the Proposed SIP fails

to recognize the regional approach to reducing haze.  The Proposed SIP thus fails to pass legal

and technical muster and must be corrected to consider the current cumulative impacts as well

as the future cumulative benefits from BART, as well as other measures to improve visibility in

Class I areas.  

IV. CONCLUSION

In light of the above deficiencies, the undersigned respectfully request that EPA disapprove

the Proposed SIP and prepare a legally‐adequate FIP in its place.  Thank you for the

opportunity to submit comments on the Proposed SIP.  
18 

Sincerely,

Gloria D. Smith

Senior Staff Attorney

Sierra Club Environmental Law Program

85 Second Street

San Francisco, CA 94105

Phone: (415) 977‐5532

Fax: (415) 977‐5793

Gloria.smith@sierraclub.org

Stephanie Kodish, Clean Air Counsel

National Parks Conservation Association

W: 865‐329‐2424    

C: 865‐964‐1774

F: 865‐329‐2422  

skodish@npca.org

Christi Biniaz

Citizens for Dixie’s Future

P.O. Box 161

Hurricane, UT 84738

(435) 229‐2387

Christi.biniaz@gmail.com  

Michele Burkett

Defend Our Desert

P.O. Box 3683

Mesquite, NV  89024

(702) 346‐1320

mburkett2@gmail.com  

Roger Clark

Grand Canyon Trust

2601 N. Fort Valley Road

Flagstaff, AZ  86001

(928) 774‐7488

rclark@grandcanyontrust.org  
19 

Nancy Hall

Friends of Gold Butte

P.O. Box 3664

Mesquite, NV  89024

(702) 346‐3723

friendsofgoldbutte@gmail.com

Phil Williamson

WRA Senior Policy Advisor

204 No. Minnesota St.  Suite 1A

Carson City, NV  89703

Office: 775 841‐2400   

pwilliamson@westernresources.org

cc:    Suma Peesapati, Earthjustice,  

426 17th Street  

6th Floor,  

Oakland, CA 94612

John Barth, Attorney at Law

P.O. Box 409

Hygiene, CO 80533

Accompanying Reports:

1) Expert Report by Dr. Petra Pless and Mr. Bill Powers ; Exhibits 1‐116 thereto;

Attachments 1‐5c thereto

2) Expert Report by Dr. Andrew Gray