1

VIA ELECTRONIC MAIL AND U.S. MAIL

June 13, 2014

Cristina Fernandez 

Associate Director

Office of Air Program Planning 

Mailcode 3AP30

U.S. Environmental Protection Agency, Region III 

1650 Arch Street 

Philadelphia, PA 19103

Fernandez.cristina@epa.gov

Re: Approval and Promulgation of Air Quality Implementation Plans; West Virginia; 

Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality 

Standards; EPA-R03-OAR-2014-0299

Dear Ms. Fernandez:

On behalf of the Sierra Club, its over 2,000 members in West Virginia, and others who 

are adversely impacted by West Virginia’s sources of sulfur dioxide (“SO2”), we submit the 

following comments on EPA’s proposed Approval and Promulgation of Air Quality 

Implementation Plans; West Virginia; Infrastructure Requirements for the 2010 Sulfur Dioxide 

National Ambient Air Quality Standards. 79 Fed. Reg. 27,524 (May 14, 2014) [hereinafter 

“Proposed Approval”].1 According to the Proposed Approval on the Federal Register, written 

comments will be considered if received via the Federal Register site, e-mail, or mail on June 13, 

2014, making this submission timely.

As acknowledged by the EPA’s Proposed Approval, West Virginia must submit an 

Infrastructure State Implementation Plan (“Infrastructure SIP” or “I-SIP”) that addresses all of 

the requirements in sections 110(a)(1) and (2) of the Clean Air Act (“CAA” or “Act”) for the 

June 2, 2010 one-hour primary SO2 standard. 42 U.S.C. § 7410(a)(1) & (2). West Virginia has 

created an I-SIP addressing the 2010 SO2 NAAQS. See Final West Virginia State 

Implementation Plan Revision for Clean Air Act §110(a)(2)(A)-(M) Requirements for Sulfur 

Dioxide (June 25, 2013) (hereinafter “Proposed I-SIP”). The Proposed I-SIP submitted by West 

Virginia Department of Environmental Protection (“DEP”) does not satisfy several essential 

 1

 A copy of these comments, exhibits, and supporting modeling files can be found at 

https://app.box.com/s/y20kyyatyedq85bek33r.
2

requirements of section 110(a)(1) and (2), including requirements to establish enforceable 

emission limits and to address significant contributions to downwind states. 

The following comments explain these deficiencies in greater detail. With thirty-one

counties demonstrating modeled exceedances of the SO2 NAAQS, the potential public health 

benefits of addressing these deficiencies are incredibly significant. Because the Proposed I-SIP 

West Virginia submitted fails to comport with the Clean Air Act, EPA must disapprove the 

submission. 

I. BACKGROUND 

A. National Ambient Air Quality Standards

The Clean Air Act (“CAA”) is, at its core, a directive to protect the public from harmful 

air pollution. Indeed, “pollution prevention” is a “primary goal” of the CAA. 42 U.S.C. 

§7401(c). Pursuant to this mandate, EPA is required to promulgate “primary ambient air quality 

standards [“NAAQS”] . . . the attainment and maintenance of which . . . are requisite to protect 

the public health.” 42 U.S.C. § 7409(b)(1). So far, EPA has identified six criteria pollutants—

sulfur dioxide, particulate matter, carbon monoxide, ozone, nitrogen oxide, and lead—that have 

scientifically demonstrated effects on health and the environment, at certain levels. 

The NAAQS represent a ceiling of air pollution concentrations that apply throughout the 

country. As such, the primary NAAQS form the basis for regulating air emissions for the entire 

country and provide the foundation for setting specific emission limitations for most large 

stationary sources. The primary national ambient air quality standards set ambient pollution 

levels, which should be exceeded in order to protect public health with an adequate margin of 

safety. See 42 U.S.C. § 7409(b)(1). These standards serve as the basis for development and 

approval of infrastructure state implementation plan (“Infrastructure SIP” or “I-SIP”).

1. Sulfur Dioxide: Public Health Impacts and the Current NAAQS

Exposure to SO2 in even very short time periods—such as five minutes—has significant 

health impacts and causes decrements in lung function, aggravation of asthma, and respiratory 

and cardiovascular morbidity. See Primary National Ambient Air Quality Standard for Sulfur 

Dioxide Final Rule, 75 Fed. Reg. 35,520, 35,525 (June 20, 2010) [hereinafter “Final SO2

NAAQS Rule”]. EPA has also determined that SO2 exposure can also aggravate existing heart 

disease, leading to increased hospitalizations and premature deaths. See Final SO2 NAAQS Rule, 

75 Fed. Reg. at 35,525.

On June 2, 2010, EPA revised the primary SO2 NAAQS by establishing a new one-hour 

standard at a level of 75 ppb which is met when the 3-year average of the annual 99th percentile 

of the daily maximum one-hour average concentrations is less than or equal to 75 ppb. See 

generally Final SO2 NAAQS Rule. The primary SO2 NAAQS was set at such a level in order to 

protect public health from the serious threats posed by short-term exposure to SO2. 

Due to both the shorter averaging time and the numerical difference, the new 1-hour SO2

NAAQS is far more protective of human health than the prior SO2 NAAQS and promises huge 
3

health benefits. EPA has estimated that 2,300-5,900 premature deaths and 54,000 asthma attacks 

a year will be prevented by the new standard. Envtl. Prot. Agency, Final Regulatory Impact 

Analysis (RIA) for the SO2 National Ambient Air Quality Standards (NAAQS) tbl. 5.14 (2010). 

Timely implementation of the new NAAQS is thus critical. Each year of delay in implementing

the SO2 NAAQS means 5,900 people will die prematurely and 54,000 asthma attacks will occur 

unnecessarily. Each year of delay will likewise drive up the medical costs that individuals will 

have to pay, and will be another year in which people must abstain from everyday activities such 

as exercise, school, and work. EPA estimated that the net benefit of implementing the 75 ppb 

SO2 NAAQS was up to $36 billion dollars if attained by 2020. Final SO2 NAAQS Rule, 75 Fed. 

Reg. at 35,588. 

B. Implementation of the NAAQS

The Clean Air Act creates a framework for the “development of cooperative Federal, 

State, regional, and local programs to prevent and control air pollution.” 42 U.S.C. § 7401(a)(4). 

Pursuant to section 109(b)(1) of the Act, EPA has established primary NAAQS for six criteria air 

pollutants, “the attainment and maintenance of which . . . are requisite to protect the public 

health.” Id. § 7409(b)(1). States have “primary responsibility” for assuring air quality within the 

state. Id. § 7407(a). Following promulgation of a NAAQS, the Act requires that a state shall 

“adopt and submit to the Administrator . . . a plan which provides for implementation, 

maintenance, and enforcement of such primary [NAAQS].” Id. § 7410(a)(1). For attainment and 

unclassifiable areas, section 110(a)(2)(A) requires that these Infrastructure SIPs or I-SIPs 

“include enforceable emission limitations . . . as well as schedules and timetables for compliance, 

as may be necessary or appropriate to meet the applicable requirements” of the Clean Air Act, 

including the requirement to maintain the NAAQS. 42 U.S.C. §§ 7410(a)(2)(A), 7410(a)(1); 

Conn. Fund for Env’t, Inc. v. EPA, 696 F.2d 169, 172 (2d Cir. 1982) (CAA requires that SIPs 

contain “measures necessary to ensure the attainment and maintenance of NAAQS”); Mont. 

Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“The Clean Air Act directs 

states to develop implementation plans—SIPs—that ‘assure’ attainment and maintenance of 

national ambient air quality standards (“NAAQS”) through enforceable emission limitations.”) 

(citing 42 U.S.C. §§ 7407(a), 7410(a)(2)(A)); Hall v. EPA, 273 F.3d 1146, 1153 (9th Cir. 2001) 

(“Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be 

achieved and maintained within each air quality control region in the State”) (internal citations 

omitted); see also EPA, “Sulfur Dioxide Implementation—Programs and Requirements for 

Reducing Sulfur Dioxide,” available at

http://www.epa.gov/airquality/sulfurdioxide/implement.html. 

EPA may approve an Infrastructure SIP only if it meets the requirements of section 

110(a)(2) of the Act. See 42 U.S.C. § 7410(a)(2)(A)-(M). The state bears the burden of 

demonstrating that its SIP submission satisfies the standards of section 110(a)(2). Mich. Dep’t of 

Envtl. Quality v. Browner, 230 F.3d 181, 183, 185 (6th Cir. 2000) (affirming EPA’s rejection of 

a SIP proposal where the state “failed to offer evidence that [the] proposed rules will not 

interfere with the attainment and maintenance of the NAAQS.”). An adequate Infrastructure SIP 

“must demonstrate that the measures, rules, and regulations contained in it are adequate to 

provide for the timely attainment and maintenance of the national standard that it implements.” 

40 C.F.R. § 51.112(a).
4

1. The Plain Language and Legislative History of the Clean Air Act 

Require that Infrastructure SIPs Impose Emission Limits Adequate to 

Prevent NAAQS Exceedances in Areas Not Designated 

Nonattainment.

The Clean Air Act, on its face, requires I-SIPs to prevent exceedances of the NAAQS. 

Following promulgation of a NAAQS, a state must “adopt and submit to the Administrator . . . a 

plan which provides for implementation, maintenance, and enforcement of such [NAAQS].” 42 

U.S.C. § 7410(a)(1). Pursuant to section 110(a)(2)(A), this I-SIP must “include enforceable 

emission limitations . . . as well as schedules and timetables for compliance, as may be necessary 

or appropriate to meet the applicable requirements” of the Clean Air Act (which include the 

requirement to maintain compliance with the NAAQS). Id. § 7410(a)(2)(A) (emphasis added). 

As defined by the Act, the term “emission limitation” means “a requirement established by the 

State or the Administrator which limits the quantity, rate, or concentration of emissions of air

pollutants on a continuous basis, including any requirement relating to the operation or 

maintenance of a source to assure continuous emission reduction, and any design, equipment, 

work practice or operational standard promulgated under this chapter.” Id. § 7602(k). Thus, the 

plain language of section 110(a)(2)(A) requires that I-SIPs include enforceable emission limits 

on sources that are sufficient to ensure attainment and maintenance of the NAAQS. 

The legislative history of the Clean Air Act also supports this interpretation. As the 

Senate Committee Report accompanying the 1970 Clean Air Act explained, the Act “would 

establish certain tools as potential parts of an implementation plan and would require that 

emission requirements be established by each State for sources of air pollution agents or 

combinations of such agents in such region and that these emission requirements be monitored 

and enforceable.” Sen. Cmte. on Pub. Works Rpt. at 12 (Sept. 17, 1970) (emphasis added), 

attached hereto as Ex. 1. This was reaffirmed in the subsequent Senate Conference Report, which 

stated that: “In order to implement the national ambient air quality standards, these [state 

implementation] plans must provide for emission limitations on all services in the region covered 

by the plan, together with schedules and timetables of compliance, systems for monitoring both 

ambient air and emissions from individual sources, and adequate enforcement authority.” Sen. 

Conf. Rpt., 116 Cong. Rec. 42,381, 42,384 (Dec. 18, 1970) (emphasis added), attached hereto as 

Ex. 2.2

 2 Although the language of current section 110(a)(2)(A) was originally found in section 110(a)(2)(B), the 

substance has remained true to the statements found in the Senate Committee Reports. There were only 

two substantive changes between 1970 and the present. First, the addition of former section 172(c)’s 

requirement that SIPs’ emission limitations, schedules, and timetables be “enforceable.” See Rpt. of the 

Senate Cmte. on Envt. and Pub. Works accompanying the Clean Air Act Amendments of 1989 at 20 

(Dec. 20, 1989) (explaining that “Paragraph (1) of rewritten section 110(c) combines and streamlines 

existing section 110(a)(2)(b) and the enforceability requirements of section 172(c) of current law”), 

attached as Ex. 3; see also 42 U.S.C. § 7502(c) (section 172(c)) (requiring that a SIP revision submitted 

before July 1, 1982 pursuant to a demonstration under subsection (a)(2) “shall contain enforceable 

measures to assure attainment of the applicable standard not later than December 1, 1987”). Second, the 

clarification in the 1990 Clean Air Act Amendments that the “means[] or techniques” for meeting the 

requirements of the Act included “economic incentives such as fees, marketable permits, and auctions of 

emissions rights.” 42 U.S.C § 7410(a)(2)(A).
5

2. EPA Regulations Implementing the Clean Air Act Require That 

Infrastructure SIPs Impose Emission Limits Adequate to Prohibit 

NAAQS Exceedances in Areas Not Designated Nonattainment.

EPA regulations implementing section 110(a)(2) also require that infrastructure SIPs 

contain emission limits that ensure NAAQS attainment. Pursuant to these regulations, in order 

for EPA to approve a SIP, it “must demonstrate that the measures, rules, and regulations 

contained in it are adequate to provide for the timely attainment and maintenance of the national 

standard that it implements.” 40 C.F.R. § 51.112(a).3 As the regulation clearly states, all I-SIPs 

must contain emission limits that adequately ensure the NAAQS is achieved. Id. Although these 

regulations were developed before the Clean Air Act was amended to separate Infrastructure 

SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was 

completed by the 1990 amendments—the regulations nonetheless apply to I-SIPs. EPA has not 

changed the regulation since 1990, and in the preamble to the final rule promulgating 40 C.F.R. 

§ 51.112, EPA expressly identifies that its new regulations were not implementing Subpart D, 

the new nonattainment provisions of the Act. See Air Quality Implementation Plans; 

Restructuring SIP Preparation Regulations, 51 Fed. Reg. 40,656, 40,656 (Nov. 7, 1986) (“It is 

beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . . .”). 

Consequently, EPA intended 40 C.F.R. § 51.112 to apply to I-SIPs. Thus, it is clear that I-SIPs 

must contain “measures, rules, and regulations” sufficient to ensure maintenance of the NAAQS. 

3. Prior EPA Interpretations of the Act Require that Infrastructure SIPs 

Impose Emission Limits Adequate to Prohibit NAAQS Exceedances 

in Areas Not Designated Nonattainment.

EPA has relied on section 110(a)(2)(A) and 40 C.F.R. § 51.112 on multiple occasions to 

reject Infrastructure SIPs that did not contain specific emissions limits sufficient to demonstrate 

attainment and maintenance of the NAAQS. For example, in March 2006, EPA disapproved 

Missouri’s attempt to revise the SO2 emission limits in its I-SIP for two power plants because the 

new emission limits would not ensure maintenance of the three-hour sulfur dioxide NAAQS then 

in effect. See Approval and Promulgation of Implementation Plans; State of Missouri, 71 Fed. 

Reg. 12,623, 12,624 (Mar. 13, 2006). In so doing, EPA explained that “Section 110(a)(2)(A) of 

the [Act] requires, in part, that the [state implementation] plan include emission limitations to 

meet the requirements of the Act, including the requirement in section 110(a)(1) that the plan 

must be adequate to attain and maintain ambient air quality standards.” Id. EPA further explained 

that “40 C.F.R. 51.112 requires that the plan demonstrate that rules contained in the SIP are 

adequate to attain the ambient air quality standards.” Id. In the case of Missouri’s proposed ISIP, EPA expressed concern that the SO2 emission rates for the two power plants in question 

were “not protective of the short-term sulfur dioxide NAAQS” because, while Missouri had 

 3

 40 C.F.R. § 51.112(a)(1) further specifies that “[t]he adequacy of a control strategy shall be 

demonstrated by means of applicable air quality models, data bases, and other requirements specified in 

appendix W of this part (Guideline on Air Quality Models).” (emphasis added). Consequently, of 

relevance to our discussion of the SO2 NAAQS in these comments, 40 C.F.R. § 51.112(a)(1) supports the 

use of sulfur dioxide air dispersion modeling to evaluate the adequacy of sulfur dioxide I-SIPs for 

maintaining the one-hour sulfur dioxide NAAQS.
6

lowered the emission rates for the facilities, it had dramatically increased the averaging times 

(from a 3-hour average to an annual average) without providing “a demonstration, as required by 

the [Clean Air Act] and EPA regulations, that the [sulfur dioxide national ambient air quality] 

standards, and particularly the three-hour and the twenty-four hour standards, can be protected 

by an annual emission limit.” Id.

More recently, in December 2013, EPA rejected a revision to Indiana’s sulfur dioxide 

I-SIP pursuant to 40 C.F.R. § 51.112, because Indiana failed to demonstrate that the I-SIP, as 

revised, was sufficient to ensure maintenance of the sulfur dioxide NAAQS. See Approval of Air 

Quality Implementation Plans; Indiana; Disapproval of State Implementation Plan Revision for 

ArcelorMittal Burns Harbor; Final Rule, 78 Fed. Reg. 78,720, 78,721 (Dec. 27, 2013). Indiana 

had submitted a request to EPA to revise its sulfur dioxide I-SIP for the ArcelorMittal Burns 

Harbor facility to remove the SO2 emission limit for the blast furnace flare at the facility. Id. In 

the proposed disapproval, EPA explained that “[u]nder 40 C.F.R. 51.112(a), each SIP must 

demonstrate that the measures, rules, and regulations it contains are adequate to provide for the 

timely attainment and maintenance of the NAAQS.” See Approval of Air Quality 

Implementation Plans; Indiana; Disapproval of State Implementation Plan Revision for 

ArcelorMittal Burns Harbor; Proposed Rule, 78 Fed. Reg. 17,157, 17,158 (Mar. 20, 2013). EPA 

rejected the proposed amendment because Indiana did not demonstrate that existing emission 

limit for the ArcelorMittal blast furnace gas flare was “redundant, unnecessary, or that its 

removal would not result in or allow an increase in actual SO2 emissions,” and, consequently, 

that removal of the limit would not “affect the validity of the emission rates used in the existing 

attainment demonstration, thus undermining the SIP’s ability to ensure protection of the SO2

NAAQS.” Id. at 17,159; see also 78 Fed. Reg. at 78,721. 

4. Supreme and Appellate Court Opinions Hold that Infrastructure SIPs 

Must Impose Emission Limits Adequate to Prohibit NAAQS 

Exceedances in Areas not Designated Nonattainment.

Since the inception of the modern Clean Air Act in 1970, courts have interpreted the 

language presently found in section 110(a)(2)(A) to require that SIPs contain enforceable 

emission limits sufficient to prevent exceedances of the NAAQS. In Train v. NRDC, a seminal 

case on SIP approval requirements, the Supreme Court explained that: 

In complying with this requirement [that a SIP provide for attainment and 

maintenance of the NAAQS] a State’s plan must include ‘emission limitations,’ 

which are regulations of the composition of substances emitted into the ambient 

air from such sources as power plants, service stations, and the like. They are the 

specific rules to which operators of pollution sources are subject, and which if 

enforced should result in ambient air which meets the national standards.

421 U.S. 60, 78 (1975); see also id. at 67 (citing language from then-current section 110(a)(2)(B) 

now found in section 110(a)(2)(A)). 

Courts of Appeals have followed this holding without exception. For example, in 

Pennsylvania Department of Environmental Resources v. EPA, the Third Circuit stated that the 
7

Clean Air Act “directs the EPA to withhold approval from a state implementation plan if the 

‘maintenance of [the] standard’ cannot be assured.” 932 F.2d 269, 272 (3rd Cir. 1991).4 The 

court observed that the “need to maintain the Clean Air Act standards once they are reached is 

well-recognized by the Courts.” Id. Other courts have provided similar analyses. In Mision 

Industrial, Inc. v. EPA, for example, the First Circuit explained that, “[b]efore approving an air 

quality implementation plan or revision, the Administrator must determine that it ‘includes 

emission limitations . . . and such other measures as may be necessary to insure attainment and 

maintenance of (the) primary or secondary standard . . . .’” 547 F.2d 123, 129 (1st Cir. 1976) 

(quoting former section 110(a)(2)(B)).

The 1990 Clean Air Act amendments do not alter this picture. Court decisions since the 

1990 amendments have continued to hold that I-SIPs must have emission limits that maintain the 

NAAQS. In Alaska Department of Environmental Conservation v. EPA, the Supreme Court 

explained that an Infrastructure SIP under CAA section 110(a)(1) must be a “plan which 

provides for implementation, maintenance, and enforcement of [NAAQS].” 540 U.S. 461, 470 

(2004) (quoting section 110(a)(1)). “While States have wide discretion in formulating their plans 

. . . SIPs must include certain measures Congress specified to assure that national ambient air 

quality standards are achieved.” Id. (internal citations and quotations omitted). Thus, in order for 

EPA to approve a SIP, it “must ‘include enforceable emission limitations and other control 

measures, means, or techniques . . . as may be necessary or appropriate to meet the applicable 

[CAA] requirements.’” Id. (quoting 42 U.S.C. § 7410(a)(2)(A)).

The circuit courts have also been clear that section 110(a)(2)(A) from the post-1990 

Clean Air Act requires enforceable emission limits in I-SIPs. For example, the Ninth Circuit 

affirmed that “[t]he Clean Air Act directs states to develop implementation plans—SIPs—that 

‘assure’ attainment and maintenance of national ambient air quality standards (‘NAAQS’) 

through enforceable emission limitations.” Mont. Sulphur & Chem. Co., 666 F.3d at 1180 (citing 

42 U.S.C. §§ 7407(a), 7410(a)(2)(A)) (emphasis added). And the Sixth Circuit has explained that 

“EPA’s deference to a state is conditioned on the state’s submission of a plan ‘which satisfies the 

standards of § 110(a)(2)’ and which includes emission limitations that result in compliance with 

the NAAQS.” Mich. Dep’t of Envtl. Quality, 230 F.3d at 185 (quoting Train, 421 U.S. at 79).

Additionally, in Hall v. EPA, the Ninth Circuit held that EPA had not fulfilled its 

responsibility under another provision—section 110(l)5—to evaluate whether a revised air 

quality plan will achieve the pollution reductions required under the Act. 273 F.3d at 1152. In 

Hall, the court held that EPA had incorrectly approved a revision to an air quality plan solely on 

the basis that the revisions did not relax the existing SIP, rather than “measur[ing] the existing 

level of pollution, compar[ing] it with the national standards, and determin[ing] the effect on this 

comparison of specified emission modifications.” Id. at 1157-58 (quoting Train, 421 U.S. at 93). 

 4

 The court was interpreting the 1977 version of the statute in which Subpart 1 of Part D had been added, 

id. at 271 n.1, but relied on the language of then-current section 110(a)(2)(B) (now found in section 

110(a)(2)(A)). Pennsylvania Dep’t of Envtl. Res., 32 F.2d at 272.

5

 Section 110(l) provides, in relevant part, that “[t]he Administrator shall not approve a revision of a [state 

implementation] plan if the revision would interfere with any applicable requirement concerning 

attainment and reasonable further progress . . . or any other applicable requirement of this chapter.” 42 

U.S.C. § 7410(l).
8

EPA claimed a statutory equivalence between non-relaxation of rules approved in 1981 and noninterference with current attainment requirements. Id. at 1155. The court rejected EPA’s 

application of the “no relaxation” rule, finding it inconsistent with the Act because it set an 

improper baseline that failed to take into consideration the 1990 amendments, which set new 

deadlines for attainment and established other new requirements for incremental progress 

towards attainment. Id. at 1160-61. Those current attainment requirements were the baseline 

from which EPA should have measured “non-interference.” Id. EPA’s analysis was required to 

reflect consideration of the prospects of meeting current attainment requirements under a revised 

air quality plan. Id. Just as a plan revision must not interfere with attainment of the NAAQS 

under section 110(l), an I-SIP must likewise include enforceable limits sufficient to ensure the 

initial plan provides for maintenance of the NAAQS under 110(a)(2)(A). 

II. EPA MUST DISAPROVE WEST VIRGINIA’S PROPOSED INFRASTRUCTURE 

SIP BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION 

110(A)(2) OF THE CLEAN AIR ACT

A. The Proposed I-SIP Fails to Include Enforceable One-Hour SO2 Emission 

Limitations to Ensure Attainment and Maintenance of the Primary SO2

NAAQS

West Virginia’s Proposed I-SIP fails to include restrictions on major SO2 sources to 

ensure that areas not designated nonattainment will attain and maintain the new one-hour SO2 

NAAQS. 

1. EPA May Not Approve the Proposed I-SIP As It Fails To Include 

Enforceable One-Hour SO2 Emission Limits for Sources Currently 

Allowed to Cause Exceedances of the NAAQS

The Proposed I-SIP fails to include adequate enforceable emission limitations or other 

required measures for sources of SO2 sufficient to ensure attainment and maintenance of the 

2010 SO2 NAAQS. As discussed above, under section 110(a)(2)(A), the I-SIP must “include 

enforceable emission limitations . . . as well as schedules and timetables for compliance, as may 

be necessary or appropriate to meet the applicable requirements” of the Clean Air Act (which 

include the requirement to maintain compliance with the NAAQS). 

Emission limits are especially important for meeting the one-hour SO2 NAAQS given the 

“strong source-oriented nature of SO2 ambient impacts.” Final SO2 NAAQS Rule, 75 Fed. Reg. 

at 35,570. Nationally, large point sources account for 95 percent of SO2 emissions, 66 percent of 

which come from fossil fuel combustion at electric facilities. Id. at 35,524. In West Virginia, it is 

even more; seventy-five percent (or 93,064 out of 124,107 tons) of SO2 emissions come from 

coal electric generating units (“EGUs”). See SO2 NEI All Sectors(2011)_28 Apr 2014.xlsx, 

Excel Worksheet “Percentage Summary (All States)”, attached hereto as Ex. 4,; see also EPA, 

The National Emissions Inventory, Sector Summaries, 

http://www.epa.gov/ttn/chief/net/2011inventory.html. 2011inventory.html.

Despite the large contribution from coal EGUs, DEQ did not even attempted to 

demonstrate that emissions allowed by the Proposed I-SIP will ensure compliance with the onehour SO2 standard. In fact, the Proposed I-SIP would simply allow the major air pollution 
9

sources in the state to continue operating under their present emission limits. As demonstrated by 

expert air dispersion modeling conducted at Sierra Club’s request, those emission limits are 

insufficient to attain and maintain the NAAQS. See Steven Klafka, John E. Amos Plant St. 

Albans, West Virginia, Sierra Club Evaluation of Compliance with 1-hour NAAQS for SO2 (Jan. 

23, 2014), [hereinafter “Amos Report”], attached hereto as Ex. 5; Steven Klafka, Harrison 

Power Station, Haywood, West Virginia, Sierra Club Evaluation of Compliance with the 1-hour 

SO2 NAAQS (Sept. 18, 2014) [hereinafter “Harrison Report”], attached hereto as Ex. 6; Steven 

Klafka, Kanawha River Plant Glasglow, West Virginia Sierra Club Evaluation of Compliance 

with the 1-hour NAAQS for SO2 (Oct. 25, 2011) [hereinafter “Kanawha Report”], attached hereto 

as Ex.7.

The Amos Report, Harrison Report, and Kanawha Report present the results of an air 

dispersion modeling analysis for each plant that compares the modeled ambient air 

concentrations of each plant’s SO2 emissions with the 2010 one-hour primary SO2 NAAQS. The 

modeling analyses employed EPA’s AERMOD program to model the plants’ “allowable” (based 

on the current Title V permit) and “maximum” emissions (based on the highest combined 

emission rate form all units during a single hour from USEPA Air Markets Program Data). The 

modeling showed that every plant could cause exceedances of the one-hour SO2 NAAQS using 

either allowable or maximum emissions. See Amos Report at 2-3; Harrison Report at 2-3; 

Kanawha Report at 1. In particular, the modeling based on the allowable emissions is crucial to a 

determination of whether the West Virginia Proposed I-SIP is adequate to attain and maintain the 

SO2 NAAQS, because this is what is allowed in each plant’s permit. 

The modeling protocols employed in these analyses are consistent with all then-available 

technical guidance, including Appendix W and EPA’s March 2011 guidance for implementing 

the one-hour SO2 NAAQS. Additionally, the modeler used the most recent version of AERMOD, 

and AERMET available at the time of the studies. See Amos Report at 2; Harrison Report at 2. 

Where any assumptions were made in the running of the models, the modeler employed 

conservative inputs, which favor the prediction of lower impacts from the plants, so that the 

results may understate the plants’ SO2 emission impacts. See Amos Report at 4; Harrison Report 

at 4; Kanawha Report at 2.

The modeling reports demonstrate that the Proposed I-SIP improperly authorizes these 

plants to cause exceedances of the one-hour SO2 NAAQS based on their allowable emission rates 

and their maximum emission rates. See Amos Report at 3, Table 1; Harrison Report at 3, Table 

1; Kanawha Report at 3, Table 1. The modeling results are above the NAAQS and show 

exceedances in thirty-one counties in West Virginia. See Amos Report at 3, Table 1; Harrison 

Report at 3, Table 1; Kanawha Report at 3, Table 1. Currently, only portions of Brooke and 

Marshall counties have been designated nonattainment under the one-hour SO2 NAAQS. See 

generally Air Quality Designations for the 2010 Sulfur Dioxide (SO2) Primary National Ambient 

Air Quality Standard, 78 Fed. Reg. 47,191, 47,204-205 (Aug. 5, 2013). 6 Because these power 

plants are in areas that are not currently designated nonattainment, the Proposed I-SIP, which 

must “provide[] for implementation, maintenance, and enforcement of” the NAAQS within those 

 6 EPA has yet to issue designations for areas aside from those containing monitors that recorded 

exceedances of the NAAQS. See Final 2010 SO2 Designations at 47,191 (designating areas with monitor 

violations from 2009-2011 as nonattainment). 
10

areas, improperly provides for continued permissive SO2 emission limits. 42 U.S.C. § 

7410(a)(1).

The findings from each modeling report are summarized in Table 1 below.

Table 1: Summary of Modeled Allowable and Maximum Emissions

Power 

Plant

Emission 

Rates

Facility 

Impact

(μg/m3)

Background

(μg/m3)

7

Total 

Impact

Facility 

Impact plus 

Background

(μg/m3)

SO2

NAAQS

(μg/m3)

8

Counties 

Impacted (Not 

Designated 

Nonattainment)

Amos Plant Allowable 479.5 54.9 534.4 196.2

Maximum 702.8 54.9 757.7 196.2

Putnam, Lincoln, 

Cabell, Kanawha, 

Jackson, Mason

Harrison Allowable 1,333.2 54.9 1,388.1 196.2

 Power 

Station

Maximum 350.2 54.9 405.1 196.2

Wetzel, Marion, 

Monogalia, 

Barbour, Upshur, 

Lewis, Tyler, 

Doddridge, 

Ritchie, Harrison, 

Preston, Tucker, 

Glimer, 

Randolph, 

Taylor9

Kanawha Allowable 10,782.4 91.6 10,874.0 196.2

Plant10

Maximum 9,124.1 91.6 9,215.7 196.2

Kanawha, Clay, 

Fayette, Logan, 

Boone, Wyoming 

Raleigh, 

Nicholas, Roane, 

Lincoln, Braxton, 

Summers

See Amos Report at 3, Table 1 and 5, Figure 1; Harrison Report at 3, Table 1 and 5, Figure 1; 

Kanawha Report at 3, Table 1 and 10, Figure 1.

 7

 The varying background levels reflect the years the reports were completed. Even without background 

levels, all plants are still modeled to violate the NAAQS. 

8

 The 75 ppb standard can be converted to μg/m3 as follows: 75/0.3823 = 196.2 μg/m3. 9

 Harrison Power Station is also impacting Ohio and Pennsylvaia.

10 Kanawha Plant is set to retire in December 2014. Either the infrastructure plan must incorporate its 

retirement as an enforceable emission limit or control measure or appropriate limits must be placed on 

this plant to comply with section 110. Indeed, the plan should incorporate all annouced retirements of 

coal-fired EGUs in it; absent modeling-informed emission limits for the retired facilities, codifying the 

retirements of such EGUs, some of the largest sources of SO2 pollution, is necessary to ensure attainment

and maintenance the NAAQS.
11

Based on the modeling results summarized above, EPA could only approve an I-SIP that 

incorporates enforceable emission limits with one-hour averaging times that are no less stringent 

than the limits listed in Table 2, below, to achieve and maintain the one-hour SO2 NAAQS. 

These limits represent the maximum rate that each facility can emit without causing NAAQS 

exceedances, thus reducing each plant’s allowable emissions by the corresponding percentage. 

These emission limits must apply at all times, including during periods of start-up, shutdown, 

and malfunction, to ensure that all areas of West Virginia attain and maintain the SO2 NAAQS.11

Table 2: Limits Necessary to Achieve and Maintain the One-Hour SO2 NAAQS

See Amos Report at 4, Table 3; Harrison Report at 4, Table 3; Kanawha Report at 3, Table 3.

As demonstrated by the modeling reports, Amos Plant, Harrison Power Station, and 

Kanawha Plant are currently authorized to cause exceedances of the one-hour SO2 NAAQS 

based on their allowable emission rates. Therefore, EPA must impose additional emission limits 

on the plants that ensure attainment and maintenance of the NAAQS at all times. As the I-SIP 

submission does not incorporate emission limitations that are necessary to meet the applicable 

requirements of the Clean Air Act (or indeed, any new emission limits for these or other SO2-

emitting facilities), including the requirement to maintain compliance with the 2010 SO2

NAAQS, the Proposed I-SIP must be appropriately disapproved.

2. Modeling Is the Appropriate Tool for Evaluating the Adequacy of

Infrastructure SIPs and Ensuring Attainment and Maintenance of the 

SO2 NAAQS

As outlined by EPA in the Final SO2 NAAQS Rule, 75 Fed. Reg. at 35,551, air 

dispersion modeling is the best method for evaluating the short-term impacts of large SO2 

sources. This is consistent with EPA’s historic use of air dispersion modeling for attainment 

designations and SIP revisions. Furthermore, an agency may not ignore information put in front 

of it, such as Sierra Club’s modeling submitted with these comments. See generally Motor 

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (holding that it was 

arbitrary and capricious for the agency to ignore an important aspect of an issue placed before it); 

 

11 Modeling-based emissions limits are well-documented. For example, Minnesota has used SO2

modeling to establish emission limits on several plants in order to avoid nonattainment designations. See

Black Dog Plant Permit No. 03700003-11, Technical Support Document, at 5 & 10 (permit emission 

limits based on modeling analyses), attached hereto as Ex. 8; see also Allen S. King Title V Technical 

Support Document, at 6, 14, 16 & 39 (permit emission limits based on modeling analyses), attached 

hereto as Ex. 9.

Plant

Required Total 

Facility Reduction 

Based on Allowable 

Emissions (%)

Required Total 

Facility Emission 

Rate (lbs/hr)

Required Total 

Facility 1-hour 

Average Emission 

Rate (lbs/MMBtu)

Amos Plant 70.5% 8,672 0.33

Harrison Power 

Station 89.4% 10,296.7 0.54

Kanawha Plant 99% 60.5
12

see also NRDC v. EPA, 571 F.3d 1245, 1254 (D.C. Cir.2009) (restating EPA’s own statement 

that additional information presented in a notice-and-comment rulemaking must be considered 

during the rulemaking by the corresponding state and EPA) (citing 70 Fed. Reg. 71,612, 71,655).

EPA has historically used modeling in determining attainment for the SO2 standard. See 

e.g., U.S. EPA, Implementation of the 1-Hour SO2 NAAQS Draft White Paper for Discussion at 

3, fn. 1, [hereinafter “EPA White Paper”], available at 

http://www.epa.gov/airquality/sulfurdioxide/pdfs/20120522whitepaper.pdf; see also

Respondent’s Opposition to Motion of the State of North Dakota for a Stay of EPA’s 1-Hour 

Sulfur Dioxide Ambient Standard Rule at 3, National Environmental Development Association’s 

Clean Air Project v. EPA (D.C. Cir. 2010) (No. 10-1252), attached hereto as Ex. 10 (“the 

Agency has historically relied on modeling to make designations for sulfur dioxide”).12 In fact, in 

EPA’s 1994 SO2 Guideline Document, EPA noted that “for SO2 attainment demonstrations, 

monitoring data alone will generally not be adequate,” U.S. EPA, 1994 SO2 Guideline 

Document, [hereinafter “1994 SO2 Guideline Document”], available at

http://www.epa.gov/ttn/oarpg/t1/memoranda/so2_guide_092109.pdf, at 2-5, and that 

“[a]ttainment determinations for SO2 will generally not rely on ambient monitoring data alone, 

but instead will be supported by an acceptable modeling analysis which quantifies that the SIP 

strategy is sound and that enforceable emission limits are responsible for attainment.” Id. at 2-1. 

The 1994 SO2 Guideline Document goes on to note that monitoring alone is likely to be 

inadequate: “[f]or SO2, dispersion modeling will generally be necessary to evaluate 

comprehensively a source's impacts and to determine the areas of expected high concentrations 

based upon current conditions.” Id. at 2-3.

EPA’s approval and acceptance of modeling for making attainment designations stretches 

back decades and demonstrates that modeling is equally applicable to determining the adequacy 

of an Infrastructure SIP. In 1983, the Office of Air Quality Planning and Standards (“OAQPS”) 

issued a Section 107 Designation Policy Summary. See Sheldon Meyers Memorandum re 

Section 107 Designation Policy Summary (April 21, 1983), attached hereto as Ex. 11. OAQPS 

explained that “air quality modeling emissions data, etc., should be used to determine if the 

monitoring data accurately characterize the worst case air quality in the area.” Id. at 1. Without 

modeling data, the worst-case air quality may not be accurately characterized. In certain 

instances, EPA relied solely on modeling data to determine nonattainment designations; 

demonstrating modeling is accepted and trustworthy. Id. at 2. In fact, reliance on modeling for 

nonattainment designations stretches back to the Carter Administration. In 1978, EPA designated 

Laurel, Montana as nonattainment “due to measured and modeled violations of the primary SO2

standard.” Mont. Sulphur & Chem. Co., 666 F.3d at 1181 (citing 43 Fed. Reg. 8,962 (Mar. 3, 

1978)). 

EPA’s final 2010 SO2 NAAQS rule simply built upon EPA’s historical practice of using 

modeling to determine attainment and nonattainment status for SO2 NAAQS. In doing so, EPA 

properly recognized the “strong source-oriented nature of SO2 ambient impacts,” Final SO2 

 12 DEQ also has long been on notice that modeling data is an important resource in the SO2 NAAQS 

attainment and maintenance process. Sierra Club shared modeling with DEP during its state level 

comment period for the the Proposed I-SIP. See Sierra Club, Comments Concerning West Virginia’s 

Section 110(a) Infrastructure State Implementation Plan (SIP) Submittal for 2010 Sulfur Dioxide NAAQS 

(May 20, 2013).
13

NAAQS Rule at 35,370, and concluded that the appropriate methodology for purposes of 

determining compliance, attainment, and nonattainment with the new NAAQS is modeling. See

id. at 35,551 (describing dispersion modeling as “the most technically appropriate, efficient and 

readily available method for assessing short-term ambient SO2 concentrations in areas with large 

point sources.”). Accordingly, in promulgating the 2010 SO2 NAAQS, EPA explained that, for 

the one-hour standard, “it is more appropriate and efficient to principally use modeling to assess 

compliance for medium to larger sources . . . .” Id at 35,570. Similarly, EPA then explained in 

the EPA White Paper that using modeling to determine attainment for the SO2 standard “could 

better address several potentially problematic issues than would the narrower monitoring-focused 

approach discussed in the proposal for the SO2 NAAQS, including the unique source-specific 

impacts of SO2 emissions and the special challenges SO2 emissions have historically presented in 

terms of monitoring short-term SO2 levels for comparison with the NAAQS in many situations 

(75 FR 35550).” EPA White Paper at 3-4.

Moreover, the courts have upheld EPA’s use of modeling. For example, in Montana 

Sulphur, the company challenged a SIP call, a SIP disapproval, and a Federal Implementation 

Plan (“FIP”) promulgation, because they were premised on a modeling analysis that showed the 

Billings/Laurel, Montana area was in nonattainment for SO2. 666 F.3d at 1184. The court 

rejected Montana Sulphur’s argument that EPA’s reliance on modeling was arbitrary and 

capricious or otherwise unlawful. Id. at 1185; see also Sierra Club v. Costle, 657 F.2d 298, 332 

(D.C. Cir. 1981) (“Realistically, computer modeling is a useful and often essential tool for 

performing the Herculean labors Congress imposed on EPA in the Clean Air Act”); Republic 

Steel Corp. v. Costle, 621 F.2d 797, 805 (6th Cir. 1980) (approving use of modeling to predict 

future violations and incorporating “worst-case” assumptions regarding weather and fullcapacity operations of pollutant sources). Further demonstrating the superiority of modeling, the 

D.C. Circuit has acknowledged the inherent problem of using monitored data for criteria 

pollutants, namely that “a monitor only measures air quality in its immediate vicinity.” Catawba 

County v. EPA, 571 F.3d 20, 30 (D.C. Cir. 2009). 

Indeed, EPA employs and relies on modeling to inform its designations because the 

agency is well aware that modeling produces reliable results. For example, as John C. Vimont, 

EPA Region 9’s Regional Meteorologist, has stated under oath: 

EPA does recognize the usefulness of ambient measurements for information on 

background concentrations, provided reliable monitoring techniques are available. 

EPA does not recommend, however, that ambient measurements be used as the 

sole basis of setting emission limitations or determining the ambient 

concentrations resulting from emissions from an industrial source. These should 

be based on an appropriate modeling analysis.

Declaration of John C. Vimont at 1, 11 (emphasis added), attached hereto as Ex. 12. Testimony 

as to the accuracy and appropriateness of modeling has also been presented by Roger Brode, a 

physical scientist in EPA’s Air Quality Modeling Group who co-chairs the AMS/EPA 

Regulatory Model Improvement Committee (AERMIC) and the AERMOD Implementation 

Workgroup. See Declaration of Roger W. Brode at 1, 2, attached hereto as Ex. 13. Mr. Brode has 

stated under oath that AERMOD is “readily capable of accurately predicting whether the revised 

primary SO2 NAAQS is attained and whether individual sources cause or contribute to a 

violation of the SO2 NAAQS.” Id. at 2. Mr. Brode has explained:
14

As part of the basis for EPA adopting the AERMOD model as the preferred 

model for nearfield applications in the Guideline on Air Quality Models, 

Appendix W to 40 CFR Part 51, the performance of the AERMOD model was 

extensively evaluated based on a total of 17 field study data bases (AERMOD:

Latest Features and Evaluation Results. EPA-454/R-03-003. U.S. Environmental 

Protection Agency, Research Triangle Park (2003), portions of which are attached 

to this affidavit) (“EPA 2003”). The scope of the model evaluations conducted for 

AERMOD far exceeds the scope of evaluations conducted on any other model 

that has been adopted in Appendix W to Part 51. These evaluations demonstrate 

the overall good performance of the AERMOD model based on technically sound 

model evaluation procedures, and also illustrate the significant advancement in 

the science of dispersion modeling represented by the AERMOD model as 

compared to other models that have been used in the past. In particular, adoption 

of the AERMOD model has significantly reduced the potential for overestimation 

of ambient impacts from elevated sources in complex terrain compared to othermodels.

Id. at 3-4 (emphasis added). The Amos Plant, Harrison Power Station, and Kanawha Plant are 

clear examples of elevated sources.

EPA’s practice in a number of other contexts also demonstrates that modeling is a 

technically superior approach for ascertaining impacts on NAAQS, as well as the extensive 

history of EPA’s preference for modeling over monitoring to evaluate compliance. For example, 

all nitrogen dioxide (“NO2”), fine particulate matter (“PM2.5”), SO2 NAAQS, and Prevention of 

Significant Deterioration (“PSD”) increment compliance verification analyses are performed 

with air dispersion modeling, such as running AERMOD in a manner consistent with the 

Guideline on Air Quality Models. 40 C.F.R. § 52.21(l)(1). Indeed, in order to ensure consistency 

in how air impacts are determined, both existing sources and newly permitted sources should be 

assessed using the same methods. AERMOD modeling performs particularly well in evaluating 

emission sources with one or a handful of large emission points. The stacks are well 

characterized in terms of location, dimensions, and exhaust parameters, and have high release 

heights. AERMOD accurately models medium-to-large SO2 sources—even with conditions of 

low wind speed, the use of off-site meteorological data, and variable weather conditions. Indeed, 

AERMOD has been tested and performs very well during conditions of low wind speeds: 

AERMOD’s evaluation analyses included a number of site-specific 

meteorological data sets that incorporate low wind speed conditions. For example, 

the Tracy evaluation included meteorological data with wind speeds as low as 

0.39 meter/second (m/s); the Westvaco evaluation included wind speeds as low as 

0.31 m/s; the Kincaid SO2 evaluation included wind speeds as low as 0.37 m/s; 

and the Lovett evaluation included wind speeds as low as 0.30 m/s. Concerns . . . 

regarding AERMOD’s ability to model low wind speed conditions seem to 

neglect the data used in actual AERMOD evaluations.

Comments of Camille Sears 1, at 10, attached hereto as Ex. 14 (citing AERMOD evaluations and 

modeled meteorological data, available at

http://www.epa.gov/ttn/scram/dispersion_prefrec.htm). 
15

Finally, EPA’s use of air dispersion modeling and AERMOD in particular was upheld in 

the context of a recent Clean Air Act § 126 petition for resolution of cross-state impacts. See

Genon Rema, LLC v. U.S. EPA, 722 F.3d 513, 526 (3rd Cir. 2013). In this case, the EPA granted 

the New Jersey Department of Environmental Protection’s 126 petition, finding that transboundary sulfur dioxide emissions from the Portland coal-fired power plant in Pennsylvania 

were significantly contributing to nonattainment and interference with the maintenance of the 

one-hour SO2 NAAQS in New Jersey. Id. at 518. EPA based its finding on a review of the 

AERMOD dispersion modeling submitted by New Jersey, its independent assessment of 

AERMOD, and other highly technical analyses. Id. The court upheld the EPA’s decision after 

examining the record, which showed that EPA had thoroughly examined the relevant scientific 

data and clearly articulated a satisfactory explanation of the action that established a rational 

connection between the facts found and the choice made. Id. at 525-28. 

EPA has acknowledged that, for the one-hour SO2 NAAQS, modeling is the most 

accurate means of determining attainment with the NAAQS, Final SO2 NAAQS Rule at 35,551, 

35,570, yet the West Virginia Proposed I-SIP lacks SO2 emissions limitations informed by air 

dispersion modeling. As a result, the proposed amendment fails to ensure that West Virginia will 

achieve and maintain the 2010 one-hour SO2 NAAQS. To comply with the Act’s obligations, 

EPA must require adequate emissions limits in the I-SIP―that is, source-specific one-hour SO2

emission limits that show no exceedances of the NAAQS when modeled.

3. EPA May Not Approve Proposed I-SIP Because It Fails To Include 

Enforceable SO2 Emission Limits With a One-Hour Averaging Period 

That Apply At All Times

As discussed, an emission limitation necessary to comply with section 110(a)(2)(A) 

means “a requirement established by the State or the Administrator which limits the quantity, 

rate, or concentration of emissions of air pollutants on a continuous basis, including any 

requirement relating to the operation or maintenance of a source to assure continuous emission 

reduction, and any design, equipment, work practice or operational standard promulgated under 

this chapter.” 42 U.S.C. § 7602(k). Emission limitations must also contain proper averaging 

times. Otherwise the emission limits would allow for peaks that cause exceedances of the 

NAAQS, but are averaged with lower emissions over time, and therefore do no register as

exceedances. In this instance, the one-hour SO2 NAAQS requires a one-hour averaging period.

In various contexts, EPA has stated that one-hour averaging times are necessary to 

comply with the one-hour SO2 NAAQS. For instance, in 2011, EPA disagreed with the Kansas 

Department of Health and Environment’s issuance of a PSD permit that contained a 30-day 

averaging time rather than a one-hour averaging period. See Letter from Karl Brooks, Regional 

Administrator, EPA Region 7 to Dr. Robert Moser, Secretary, Kansas Department of Health and 

Environment (Feb. 3, 2011), attached hereto as Ex. 15. EPA explained:

[i]t is well known that there can be considerable variability in actual 1-hour 

emission rates. Therefore, to ensure protection of the 1-hour . . . SO2 NAAQS . . . 

the permit needs to contain . . . SO2 1-hour average emission limits for both new 

and existing steam generating units. To ensure the source does not cause or 

contribute to air pollution in violation of the NAAQS, the emission limits should 
16

be consistent with the modeling rates and have the same averaging period, i.e. in 

this case maximum hourly emission limits consistent with the 1-hour NAAQS. 

Id. at 2. Similarly, in its disapproval of Missouri’s SIP in 2006, EPA determined that the 

emission rates in the SIP were “not protective of the short-term sulfur dioxide NAAQS” because 

they were based on an annual average. See Approval and Promulgation of Implementation Plans; 

State of Missouri, 71 Fed. Reg. 12,623, 12,624 (Mar. 13, 2006). In 2011, the Environmental 

Appeals Board confirmed that emission limits for SO2 should be based on hourly averaging 

times, and rejected an agency’s attempt to use a 3-hour averaging time instead. In re: Mississippi 

Lime Co., PSDAPLPEAL11-01, 2011 WL 3557194, at *26-27 (E.P.A. Aug. 9, 2011) (“Emission 

limits should be based on concentration estimates for the averaging time that results in the most 

stringent control requirements. 40 C.F.R. pt. 51, app. W, § 10.2.3.1.a.”). 

In addition to including emissions limits based on a one-hour averaging period, EPA 

must include monitoring of SO2 emission limits on a continuous basis using a continuous 

emission monitor system or systems. Clean Air Act section 110(a)(2)(F) requires a plan to 

establish a system to monitor emissions from stationary sources and to submit periodic emissions 

reports. In order to ensure emission limits which are protective of the one-hour SO2 NAAQS, the 

I-SIP must require that SO2 emissions are monitored from these sources during every hour of 

operation, regardless of whether SO2 pollutant control equipment has been installed or not.

An infrastructure plan is required to implement, maintain, and enforce the NAAQS and 

therefore must include “enforceable emission limitations” to ensure its effectiveness. 42 U.S.C. § 

7410(a)(2)(A). Only one-hour averaging periods can ensure compliance with the one-hour SO2

NAAQS. Therefore, to ensure that all areas in West Virginia attain and maintain the one-hour 

SO2 NAAQS, EPA must require enforceable emission limits with one-hour averaging times, 

monitored continuously, for coal-fired power plants and other large sources of SO2. These 

emission limits must apply at all times, including periods of start-up, shutdown, and malfunction. 

Because the current Proposed I-SIP fails to require adequate emission limits with adequate 

averaging times, EPA must disapproved. 

4. Enforceable Emission Limits Are Necessary to Avoid Nonattainment 

Designations

In addition to being a required component of the I-SIP, enforceable emission limits—

either in permits or source-specific SIP provisions—are necessary to avoid nonattainment 

designations in areas where modeling or monitoring shows that SO2 levels exceed the one-hour 

NAAQS. See EPA, Next Steps for Area Designations and Implementation of the Sulfur Dioxide 

National Ambient Air Quality Standard at 4 (Feb. 6, 2013) (explaining that agencies should work 

“to avoid a nonattainment designation by establishing and submitting to EPA enforceable 

emission limitations ensuring that attainment with the SO2 NAAQS (in the form of permit limits, 

source-specific SIP revisions, or other permanent and enforceable legal documents) occurs prior 

to the date that final designations based on modeling information are issued” (emphasis added)); 

Primary National Ambient Air Quality Standard for Sulfur Dioxide, 75 Fed. Reg. at 35,553 (June 

22, 2010) (areas will “be designated ‘nonattainment’ if either available monitoring data or 

modeling shows that a violation exists, or ‘attainment’ if both available monitoring data and 

modeling indicate the area is attaining” (emphasis added)). EPA should use this opportunity to 

do exactly that—add enforceable emissions limits to prevent nonattainment designations later on 
17

and protect public health. The modeling reports discussed above show that thirty-one counties in 

West Virginia risk being designated nonattainment if enforceable emissions limits are not placed 

on major sources. In order to comply with section 110(a)(2)(A) and avoid nonattainment 

designations for areas impacted by high SO2 emissions, EPA must ensure that large sources of 

SO2 cannot cause exceedances of the one-hour SO2 NAAQS. 

Nonattainment designations create rigorous Clean Air Act requirements that states must 

comply with, including offsets, LAER, and nonattainment NSR. EPA should use this opportunity 

to avoid having thirty-one counties formally designated as nonattainment and protect public 

health by using this opportunity to add enforceable emissions limits to attain and maintain the 

SO2 NAAQS. 

Addressing the issue now is also a way to bring regulatory certainty to coal-fired power 

plants in West Virginia, which could ultimately save these regulated entities money. West 

Virginia could reduce the cost of complying with the SO2 NAAQS through quick 

implementation because many of the coal-fired power plants that do not already have flue gas 

desulfurization equipment are currently evaluating which sulfur controls to install as a result of 

other rules, including Mercury Air Toxic Standards (“MATS”), Cross State Air Pollution Rule 

(“CSAPR”), and Regional Haze. As a result, moving forward now with emission limits and 

pollution control requirements will allow sources to plan with certainty how to comply with all 

potentially applicable rules, avoiding an outcome in which a source makes a significant 

investment in a suite of pollution controls for MATS, Regional Haze, or CSAPR only to 

conclude that that the suite of controls is inadequate to comply with the SO2 NAAQS and that a 

second suite of controls is necessary. Thus, complying with the SO2 NAAQS may add little or no 

additional capital cost to the costs of complying with other rules—provided that the sources can 

factor the SO2 NAAQS into their initial decision on which controls to install.

Indeed, industry itself has made this same exact point to EPA, though in slightly different 

terms:

Multiple recently-issued rules all focus on large combustion source-related 

emissions (e.g. boilers) and may require significant capital expenditures to 

achieve compliance. The compliance options and deadlines for these rules, 

however, vary widely. If the rules compliance deadlines and requirements are not 

coordinated, the sources subject to them will be forced to make investment 

decisions without a full understanding of what may required to comply with the 

rules having later compliance deadline. This may result in a series of suboptimized decisions . . . [with a] suboptimal overall solution—both from a cost 

and environmental perspective. For example . . . a source could invest in Boiler 

MACT controls without a full understanding of the SO2 NAAQS issued because 

SO2 air dispersion modeling has not yet been completed . . . . 

See NAAQS Implementation Coalition Comments on the 10th Modeling Conference, March 6, 

2012 Joseph C. Stanko, Hunton and Williams, at 10 (emphasis added). By regulating these 

facilities now, EPA can prevent a source from incurring additional expenses through 

piecemealed legislation.
18

To avoid inevitable nonattainment designations in thirty-one counties and to bring 

regulatory certainty to sources in those counties, EPA must disapprove the I-SIP and establish 

enforceable emission limits to ensure that large sources of SO2 do not cause exceedances of the 

one-hour SO2 NAAQS. 

5. EPA Must Disapprove of the Proposed I-SIP, Because of its Failure 

To Include Measures That Ensure Compliance With Section 

110(a)(2)(A) of the Act Regarding the 2010 SO2 NAAQS

The statutory and regulatory sections that DEQ incorporated into its Proposed I-SIP are 

insufficient to ensure compliance with the 2010 SO2 NAAQS. Most striking is that none of the 

rules and regulations cited in West Virginia’s Proposed I-SIP include appropriate emission limits 

for the 2010 SO2 NAAQS, as shown by modeling. See generally Proposed I-SIP. In fact, West 

Virginia stated that the I-SIP did not modify existing limits to address the 2010 SO2 limits. See

West Virginia Division of Air Quality, SIP Submittal Completeness Criteria Checklist 3 (July 1, 

2013) (stating the limits are unchanged). When Sierra Club raised concerns about the current 

limits being insufficient at the state level, West Virginia incorrectly relied on Clean Air Act Part 

D, which applies to nonattainment areas. See Final West Virginia State Implementation Plan 

Revision for Clean Air Act Section 110(A)(2)(A)-(M) Requirements for Sulfur Dioxide: Response 

to Comments 2 [hereinafter “DEP Response to Comments”]. In this case, the plants showing 

modeled exceedances are not located in areas designated nonattainment. See Amos Report at 3, 

Table 1 and 5, Figure 1; Harrison Report at 3, Table 1 and 5, Figure 1; Kanawha Report at 3, 

Table 1 and 10, Figure 1. Moreover, DEP wrongly asserts that only Subpart D is meant to ensure 

the attainment of the NAAQS. See DEP Response to Comments at 2. Section 110(a)(1)-(2) 

requires that a plan provide for attainment and maintenance of the NAAQS. See also 40 C.F.R. 

§ 51.112(a). When an area has exceedances and is not designated nonattainment, the I-SIP must 

provide assurances that the NAAQS will be attained and maintained. West Virginia’s I-SIP has 

failed to demonstrate this essential obligation.

For example, the Proposed I-SIP cites to the Division of Environmental Protection, 

Office of Air Quality, To Prevent and Control Air Pollution from the Emissions of Sulfur 

Oxides, see generally W. Va. Code R. § 45-10. See Ellen Schmitt, Office of Air Planning, EPA, 

Technical Support Document for the West Virginia State Implementation Plan for the 

Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality 

Standards, 2 (Apr. 30, 2014) [hereinafter “TSD”]. Under this regulation, limits are placed on 

Amos Plant, Harrison Power Station, and Kanawha Plant. However, these emission limits have 

not been revised since before the 2010 SO2 NAAQS were established, having been passed over 

thirteen years ago. See 45 W. Va. Code §45-10-3. Nor do the regulations include effective hourly 

limits, being instead keyed to the heat output of facilities. Id. These limits must include new onehour enforceable limitations with proper averaging times not based on heat limits, which will 

ensure attainment and maintenance of the 2010 SO2 NAAQS.

As a result of all of these inadequacies, exemptions, variances, and other shortfalls not 

listed in these comments, the Proposed I-SIP cannot ensure that West Virginia will attain and 

maintain the 2010 SO2 NAAQS. EPA must disapprove West Virginia’s Proposed I-SIP and 

require enforceable emission limits that address the exceedances shown by the modeling data 

and that address the 2010 SO2 NAAQS.
19

C. EPA Must Disapprove the Proposed I-SIP for its Failure to Address Sources 

Significantly Contributing to Nonattainment or Interference with 

Maintenance of the NAAQS in Downwind States and Issue a Federal 

Implementation Plan

EPA must disapprove West Virginia’s Proposed I-SIP for its failure to address sources 

significantly contributing to nonattainment or interference with maintenance of the NAAQS in 

downwind states and issue a Federal Implementation Plant (“FIP”). West Virginia failed to meet 

its obligations under section 110(a)(2)(D)(i)(I). See TSD at 5-6. In addition, the modeling shows 

that at least one plant is causing exceedances in other states; Harrison Power Station has modeled 

exceedances in Pennsylvania and Ohio. See Harrison Report at 5, Figure 1.

West Virginia was required to address interstate transport of its emissions that will 

contribute to exceedances or interfere with the maintenance of the NAAQS. Under section 

110(a)(2)(D), a SIP must contain “adequate provisions (i) prohibiting . . . any source . . . from 

emitting any air pollutant in amounts which will—(I) 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 . . . .” 42 U.S.C. § 7410(a)(2)(D)(i)(I); see also EPA v. 

EME Homer City Generation, No. 12-1182, slip op. at 14 (U.S. Apr. 29, 2014) (reiterating that 

this is a mandatory duty) [hereinafter “Homer City”]. West Virginia’s I-SIP, as proposed, fails to 

address any cross-state impacts that are due to sources within the state. See TSD at 5-6. This is 

inadequate and should result in EPA disapproving the submittal. 

The Clean Air Act sets a mandatory duty for states to submit I-SIPs within three years of 

promulgation of a NAAQS. 42 U.S.C. § 7410(a)(1). Under CAA section 110, there is no 

prerequisite action required, such as EPA issuing guidance, before states must fulfill their 

mandatory duty. See Homer City at 14 (“the CAA sets a series of precise deadlines to which the 

States and EPA must adhere.”).13 In light of the Homer City, EPA is required to act.14 Therefore, 

EPA must disapprove West Virginia’s SIP and issue a FIP that addresses Prongs 1 and 2 of the 

interstate provisions.15

 13 EPA cannot rely on the fact that EPA’s 2013 I-SIP Guidance does not address interstate transport 

provisions. This guidance directly contradicts the language of the Clean Air Act. See U.S. EPA, Guidance 

on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Section 110(a)(1) and 

110(a)(2) (Sept. 13, 2013). The Supreme Court has resoundingly disapproved the belief that states cannot 

address the section 110(a)(2)(D)(i), the Good Neighbor provision, until EPA first calculates the budget of 

emissions and gives upwind states the opportunity to propose SIPs allocating those budgets among instate sources before issuing a FIP. See Homer City, 696 F.3d 7, 37 (D.C. Cir. 2012), rev’d, No. 12-1182, 

slip op. at 27-28 (U.S. Apr. 29,2014) (stating “nothing in the statute places EPA under an obligation to 

provide specific metrics to States before they undertake to fulfill their good neighbor obligations” and 

finding the D.C. Circuit impermissably altered the clear deadlines in the Act).

14Even if CSAPR is fully implemented, EPA is still required to address the pollutants that are contributing 

to nonattainment or interference with the NAAQS that are not covered by CSAPR. 15 Just as EPA has historically used air dispersion modeling in attainment designations and SIP revisions, 

so has the agency relied on modeling to assess cross-state impacts under the Act’s Good Neighbor 

provision—section 110(a)(2)(D)(i)(I). Under the Clean Air Interstate Rule (“CAIR”) and CSAPR, as well 

as the 2003 NOx SIP Call, EPA has used modeling to determine pollutants’ cross-state impacts. Note that 
20

D. EPA Must Disapprove the Proposed Infrastructure SIP Because It Fails to 

Protect Visibility in Other States 

Every Infrastructure SIP must contain adequate provisions that prohibit sources and other 

emissions in the state from interfering with another state’s visibility. See 42 U.S.C. 

7410(a)(2)(D)(i)(II). If a state does not adequately protect the visibility in other states, EPA must 

disapprove the Proposed Infrastructure SIP for its failure to protect visibility in other states. As 

Homer City reiterated, the Clean Air Act establishes a series of mandatory deadlines that the 

states and EPA must meet. See Homer City at 14.

Here, EPA ignores its deadline and states that it is not acting on the visibility prong, 

section 110(a)(2)(D)(i)(II) of the CAA. See 79. Fed. Reg. 27,524, 27,525 (May 14, 2014). 

However, EPA cites no legally defensible reason for so doing; EPA cannot delay its disapproval 

any longer. EPA must also act on section 110(a)(2)(J) when a NAAQS is revised. See TSD at 11. 

The CAA set specific deadlines by which states and EPA must act. The deadline for state action 

has passed, EPA must disapprove the West Virginia’s I-SIP now and issue an FIP to address the 

failings of the I-SIP and to protect visibility in other states.16

III. CONCLUSION

The Proposed I-SIP fails to ensure that 2010 SO2 NAAQS is attained and maintained, as 

described above. EPA must disapprove the Proposed I-SIP as is in order to protect public health 

and comply with requirements of the Clean Air Act. The Sierra Club would be happy to provide 

any other information that might assist EPA in evaluating the impacts of these sources and 

developing an implementation plan in full compliance with the Clean Air Act.

Respectfully submitted,

 /s/Elizabeth Toba Pearlman x

Elizabeth Toba Pearlman

Office of Elizabeth Toba Pearlman

1523 27th Street, NW

Washington, DC 20007

(202) 643-4068

etplaw@gmail.com

Zachary M. Fabish

Staff Attorney

50 F Street, NW - 8th Floor

Washington, DC 20001

 

the D.C. Circuit court never questioned the agency’s use of modeling to assess cross-state impacts. See 

generally North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).

16 Because of the mandatory timeline for I-SIPs within the Clean Air Act, EPA cannot delay acting on

startup, shutdown, and malfunction of operations, as well as director’s varriances. See TSD at 3.
21

(202) 675-7917

zachary.fabish@sierraclub.org

On behalf of the Sierra Club