To: 

From: 

Re: 

Date: 

Janet McCabe, Acting Asst. Administrator Office of Air and Radiation, US EPA 

Carl Daly, Director Air 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 

Sent by mail and email 

As an attorney with education in environmental law and policy and as a concerned citizen1, I am sharing 

the results of my study of the matter of EPA review concerning sulfur dioxide emissions from the Martin 

Drake Power Plant and resultant air quality of the Colorado Springs Region, as required by the March 

2015 Consent Decree EPA entered with plaintiffs Natural Resources Defense Council and Sierra Club 

("S02 Matter"). My rather comprehensive review, conducted over the past six months, concludes that the 

totality of professional scientific data available clearly demonstrates that the Region is in non-attainment 

of the 1 hour National Ambient Air Quality Standard for S02 (herein referred to as "S02 NAAQS"). 

Further, as summarized below, the Colorado Department of Public Health and Environment (CD PH E) 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 cannot be accepted by EPA as part of its mandatory review of 

S02 NAAQS compliance of the Region. Thank you for considering the following summary of the vast 

information evaluated. 

All P-rofessional analyses of Colorado Springs Region show gross violations of S02 NAAQS. 

Four professional modeling analyses by two independent professional air quality services firms all show 

non-attainment of S02 NAAQS with severe violations concerning sulfur dioxide emissions from the 

Martin Drake Power Plant.2 Each of these analyses was submitted to CDPHE, Colorado Springs Utilities 

(CSU) and EPA during the 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 opted to dismiss the professional studies. yet conducted none of its 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 of Denver, 2005. 

2 1. Wingra Engineering prepared modeling analysis of the Region, submitted by Sierra Club to EPA and CDPHE in 

March 2013; 2. Wingra Engineering prepared an updated modeling analysis of the Region for purpose of review of 

the present S02 Matter, which was submitted by Sierra Club to CDPHE and EPA on August 5, 2015; 3. Air Expertise 

Colorado, LLC prepared modeling of the Region dated September 23,2013 with additional communication to CDPHE 

and EPA on March 5, 2014; 4. Air Expertise Colorado prepared updated modeling of the Region 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 of CDPHE dated September 

29. 2015 recording CDPHE and CSU personnel comments made during a meeting earlier that day acknowledging no 

review of any modeling analyses submitted to them had taken place. 

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March 20, 2013. Months later in 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 or the EPA on professional modeling or formal analysis of 

its own, CDPHE relied entirely on a paragraph and a half of the recorded "Notes" written by an employee 

in October of 2011. These notes present a casual observation of how well meteorological data from the 

Colorado Springs Airport could pertain to the area surrounding the 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 nor was a formal analysis generated in the intervening four 

years prior to the CDPHE Recommendation.6 

CDPHE's belated and reluctant review of Sierra 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 of the 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 of S02 NAAQS were still found.7 

CDPHE's statements about the sole S02 monitor in the Region are intended to distract. 

CDPHE and CSU also regularly publicly state that the sole S02 monitor in the Region shows compliance of 

the S02 NAAQS. In contradiction, CDPHE has acknowledged in discussions with citizens on several 

occasions that the 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 of a region. Rather, attainment for every place the public has 

access is the statutory requirement. Accordingly, EPA recognized the value of modeling in its 2010 

promulgation of the S02 NAAQS as an important means of demonstrating attainment in exactly these 

settings that include large stationary sources of sulfur dioxide. 

4 Attachment 8 -affidavit and log of communications 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, thenSupervisor to several recipients of the communications. 

5 Attachment C- "Notes" written by a former CDPHE employee dated October 17, 2011, which CDPHE entirely relied 

upon to dismiss all professional modeling analyses submitted to them (see Attachment D). 

6 See Attachment D - page 10 of the 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 (reference that 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. 

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Colorado Springs Utilities is also withholding relevant air quality information from the EPA. 

Finally, it has also been found through an Open Records request to Colorado Springs Utilities that invoices 

were submitted to it by its air quality services vendor AECOM subsequent to the March 2015 Consent 

Decree.8 It is presumed that the work AECOM conducted pertains to the S02 Matter, given the timing and 

that the contract under which this work was performed by AECOM explicitly relates to air quality 

modeling and NAAQS compliance. However, CSU refuses to make either their requests to, or the results of 

work performed by AECOM available to the public. As this withholding of technical air quality 

information is believed to be in violation of the 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 of CSU's withholding.9 The 

Petition is included for your reference as Attachment F. If CSU is ordered by the Court to release the air 

quality information, the AECOM data will be prompily submitted to the EPA. As a concerned citizen 

directly impacted by this designation, I urge EPA to lso request this information from Colorado Springs 

Utilities, as it is relevant for the present review of S<D2 NAAQS in the Colorado Springs Region. 

Conclusion: Colorado Springs Region is in non-attainment of the 2010 Revised NAAQS for SOz~ 

CDPHE has submitted no reasonable nor supported analysis of the S02 Matter to 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 protect public 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 of this 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 of the S02 NAAQS by the 

Martin Drake Power Plant in Colorado Springs. Importantly, when CDPHE was tasked by Air Quality 

Control Commissioners to review the Sierra Club study and to correct for CDPHE's objections to it, CDPHE 

testified to the Commissioners that their findings still resulted in violations of S02 NAAQS. 

Pursuant to the March 2015 Consent Decree, EPA's comprehensive review of the Region is within the 

Agency's task to protect public health and safety from dangerous air pollutions created by industrial 

sources. Therefore, to fulfill its mandate, EPA must make a finding of non-attainment of the 1 hour 

Revised NAAQS Standard for sulfur dioxide in the Colorado Springs Region under the 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 with AECOM Technical Services, Inc. on December 2, 2013. No work had been 

solicited by CSU or conducted by AECOM under this Agreement prior to May 2015. 

9 Colorado Open Records Act C.R.S. 24-72-201, etseq. and the Clean Air Act, 42 U.S.C. 7401, et seq., 40 C.F.R. 2.301(c). 

Attachment F- Docket #15CV 545, filed on Dec. 18, 2015 in Colo. District Court, El Paso County. 

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