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From: Re: Date: Janet McCabe, Acting Asst. Administrator Office ofAir and Radiation, US EPA Carl Daly, DirectorAir Program Region 8, US EPA Shaun McGrath, Regional Administrator, Region 8, US EPA Leslie Weise Colorado Springs NAAQS Designation for Sulfur Dioxide January 6, 2015 Sentby mailand email As an attorney with education in environmental law and policy and as a concerned citizen 1 , I am sharing the results ofmy study ofthe matter ofEPA review concerning sulfur dioxide emissions from the Martin Drake Power Plant and resultant air quality ofthe Colorado Springs Region, as required bythe March 2015 Consent Decree EPA entered with plaintiffs Natural Resources Defense Council and Sierra Club ("S02 Matter"). My rather comprehensive review, conducted overthe past six months, concludes that the totality ofprofessional scientific data available clearly demonstrates that the Region is in non-attainment ofthe 1 hour National Ambient Air Quality Standard for S02 (herein referred to as "S02 NAAQS"). Further, as summarized below, the Colorado Department ofPublic Health and Environment (CDPHE) was deficient in its analysis leading to a recommendation ofunclassifiable made on August 20, 2015 to the Colorado Air Quality Control Commission (AQCC) and EPA (the "CDPHE Recommendation"). As CDPHE's support for its recommendation is flawed, it cannotbe accepted byEPA as part ofits mandatory review of S02 NAAQS compliance ofthe Region. Thankyou for considering the following summary ofthe vast information evaluated.


### All P-rofessional analyses ofColorado Springs Region show gross violations ofS02 NAAQS. Four professional modeling analyses by two independent professional air quality services firms all show non-attainment ofS02 NAAQS with severe violations concerning sulfur dioxide emissions from the Martin Drake Power Plant. 2 Each ofthese analyses was submittedto CDPHE, Colorado Springs Utilities (CSU) and EPA duringthe period of2012 to December 2015. All four analyses were carefully conducted within EPA procedures and guidelines, using both actual and permitted emissions from the Martin Drake Plant. The most recent analysis as reported on December 8. 2015 to EPA by Air Expertise Colorado also found that egregious violations ofNOx and PMz.s NAAQS are occurring in the Colorado Springs region.


### CDPHE optedto dismiss the professional studies. yet conducted none ofits own. CDPHE chose to ignore the three professional analyses presented to them prior to its CDPHE Recommendation on August 20, 2015,3 yet still opined that insufficient data exists to determine the Region's compliance with S02 NAAQS. Sierra Club first submitted its S02 NAAQS analysis to CDPHE on

1 LLM, Environmental and Natural Resource Law and Policy, University ofDenver, 2005. 2 1. Wingra Engineering prepared modeling analysis ofthe Region, submitted by Sierra Club to EPA and CDPHE in March 2013; 2. Wingra Engineering prepared an updated modeling analysis ofthe Region for purpose ofreview of the presentS02 Matter, which was submitted by Sierra Club to CDPHE and EPA onAugust 5, 2015; 3. Air Expertise Colorado, LLC prepared modeling ofthe Region dated September 23,2013 with additional communication to CDPHE and EPA on March 5, 2014; 4
. Air Expertise Colorado prepared updated modeling ofthe R egion in which S02, NOx and PM2.5 were analyzed, and which was submitted to CDPHE and EPA on December 8, 2015. EPA has access to all referenced data, and is available upon request 3 Attachment A- email communication from L. Weise to Lisa Devore and Curtis Taipale ofCDPHE dated September 29. 2015 recording CDPHE and CSU personnel comments made during a meeting earlierthatday acknowledging no review ofany modeling analyses submitted to them had takenplace. 

### 1March 20, 2013. Months laterin August 2013, CDPHE managers exchanged email communications with subordinates concerning the analysis, as was revealed through a Colorado Open Records Act (Open Records) request. CDPHE refuses to make these communications available to the public however, though they may provide explanation why CDPHE chose to disregard the Sierra Club's findings. 4 Rather than base its recommendation to AQCC orthe EPA on professional modeling or formal analysis of its own, CDPHE relied entirely on a paragraph and a halfofthe recorded "Notes" written by an employee in October of2011. These notes presenta casual observation ofhow well meteorological data from the Colorado SpringsAirport could pertain to the area surroundingthe Martin Drake Power Plant, located less than seven miles away with essentially flat terrain between the two facilities. In this informal assessment, the (now former) employee took no measurements or solicited actual data to form his beliefs, nor were the thoughts converted to a protocol in compliance with EPA guidelines for such type of meteorological assessment. Obtained through an Open Records request, these notes are included for your reference as Attachment c.s Surprisingly, neither these notes nor the available Colorado Springs meteorological data were ever reevaluated norwas a formal analysis generated in the intervening four years priorto the CDPHE Recommendation.6 

### CDPHE's belated and reluctant review ofSierra Club analysis also found non-attainment. Under considerable public pressure from citizens concerned that CDPHE had, and continued to fail to act upon the credible scientific data that demonstrated gross violations ofthe S02 NAAQS, Commissioners from AQCC made a specific request to CDPHE at the August 20, 2015 public hearing: to review the Sierra Club analysis that had been submitted to them. On October 15, 2015 before AQCC, CDPHE testified that even after adjusting certain modeling parameters to its preference from those that the Sierra Club's study had used, it acknowledged that violations ofS02 NAAQS were still found.7 

### CDPHE's statements aboutthe sole S02 monitorin the Region are intended to distract. CDPHE and CSU also regularly publicly state thatthe sole S02 monitor in the Region shows compliance of the S02 NAAQS. In contradiction, CDPHE has acknowledged in discussions with citizens on several occasions thatthe monitor was not optimally placed for such sulfur dioxide readings from the Martin Drake Power Plant, and further omits explanation that a sole monitor can never be relied upon for a thorough NAAQS compliance designation ofa region. Rather, attainment for every place the public has access is the statutoryrequirement. Accordingly, EPA recognized the value ofmodeling in its 2010 promulgation ofthe S02 NAAQS as an important means ofdemonstrating attainment in exactly these settings that include large stationary sources ofsulfur dioxide
.

4 Attachment 8 -affidavit and log ofcommunications deemed privileged by CDPHE in response to an Open Records requested submitted by L. Weise on August 24, 2015. The withheld emails were initiated by Chuck Machovec, thenSupervisorto several recipients ofthe communications. 5 Attachment C- "Notes" written by a former CDPHE employee dated October 17, 2011, which CDPHE entirely relied uponto dismiss all professional modeling analyses submitted to them (see Attachment D). 6 See Attachment D

- page 10 ofthe presentation made by APCD/CDPHE to AQCC for CDPHE Recommendation on August 20, 2015, entire reliance is based on "available meteorological dataset(s)" that "division assessed" in Oct. 2011 (referencethat assessment in Attachment C). 7 Attachment E

- Open Records request submitted by L. Weise to CDPHE on October 15, 2015 requesting communications regarding Lisa Devore's acknowledgement that S02 NAAQS violations were found by CDPHE personnel upon modifications to Sierra Club modeling analysis. 

### 2Colorado Springs Utilities is also withholding relevant air quality information from the EPA
. Finally, ithas also been found through an Open Records requestto Colorado Springs Utilities that invoices were submitted to itby its air quality services vendorAECOM subsequentto the March 2015 Consent Decree.8 It is presumed that the workAECOM conducted pertains to the S02 Matter, given the timing and thatthe contractunder which this workwas performedby AECOM explicitly relates to air quality modeling and NAAQS compliance. However, CSU refuses to make either their requests to, orthe results of work performed byAECOM available to the public. As this withholding oftechnical air quality information is believed to be in violation ofthe Colorado Open Records Act (CORA) and Clean Air Act, I have filed a Petition to the El Paso County District Court for a judicial review ofCSU's withholding.9 The Petition is included for your reference as Attachment F. IfCSU is ordered bythe Court to release the air quality information, the AECOM data will be prompily submitted to the EPA. As a concerned citizen directly impacted bythis designation, I urge EPA to

## lso request this information from Colorado Springs Utilities, as it is relevant for the present review ofS<D2 NAAQS in the Colorado Springs Region.
Conclusion: Colorado Springs Region is in non-attainment ofthe 2010 Revised NAAQS for**SOz ~**  CDPHE has submitted no reasonable nor supported analysis ofthe S02 Matterto EPA. and thus its recommendation to EPA should not be considered in decision

-making. Relying upon the CDPHE Recommendation would perpetuate flawed analysis and would not serve to protectpublic health. EPA should also note that, while CDPHE has asserted that insufficient information exists to make a S02 NAAQS designation at this time, both CDPHE and CSU have chosen to withhold relevant information ofthis S02 Matter from EPA and the public
. Rather, EPA must properly consider the multiple credible professional analyses conducted within EPA guidelines over the recent three

-year period that all show severe violations ofthe S02 NAAQS by the Martin Drake Power Plant in Colorado Springs. Importantly, when CDPHE was tasked byAir Quality Control Commissioners to review the Sierra Club study and to correct for CDPHE's objections to it, CDPHE testified to the Commissioners thattheir findings still resulted in violations ofS02 NAAQS. Pursuant to the March 2015 Consent Decree, EPA's comprehensive review ofthe Region is within the Agency's taskto protect public health and safety from dangerous air pollutions created by industrial sources. Therefore, to fulfill its mandate, EPA must make a finding ofnon-attainment ofthe 1 hour Revised NAAQS Standard for sulfur dioxide in the Colorado Springs Region underthe Clean Air Act. Sincerely,

# cf~**~** 17780 Caribou Drive, Monument, Colorado 80132 leslie@weise
.us 303
.523
.0016

8 A Request for Information was published by CSU on May 13, 2013, pursuant to which CSU entered into a Professional Services Agreement withAECOM Technical Services, Inc. on December 2, 2013
. No work had been solicited by CSU orconducted byAECOM under this Agreementpriorto May 2015
. 9 Colorado Open Records Act C.R.S. 24-72-201, etseq. and the C lean Air Act, 42 U.S.C. 7401 , etseq. , 40 C.F.R. 2.30 1 (c). Attachment F- Docket #15CV 545, filed on Dec. 18, 2015 in Colo. District Court, El Paso County. 

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