1 V IA E LECTRONIC M AIL AND U.S. M AIL

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 Fernand ez.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 (“SO 2 ”), 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, writte n 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 SO 2 standard . 42 U.S.C. § 7410(a)(1) & (2). West Virginia has created an I

- SI P 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 De partment of Environmental Protection (“DEP”) does not satisfy several essential

1 A copy of these comments, exhibits, and su pporting 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 fo llowing comments explain these deficiencies in greater detail. With t hirty

- one counties demonstrating modeled exceedances of the SO 2 NAAQS, the potential public health benefits of addressing these deficiencies are incredibly significant. Because the Propos ed 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 founda tion 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 SO 2 in eve n 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 SO 2 NAAQS Rule”] . EPA has also determined that SO 2 exposure can also aggravate existing heart disease, leading to increased hospitalizations and premature deaths. See Final SO 2 NAA QS Rule

, 75 Fed. Reg. at 35,525.

On June 2, 2010, EPA revised the primary SO 2 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 conce ntrations is less than or equal to 75 ppb. See generally Final SO 2 NAAQS Rule. The primary SO 2 NAAQS was set at such a level in order to protect public health from the serious threats posed by short

- term exposure to SO 2
. Due to both the shorter averaging time and the numerical difference, the new 1

- hour SO 2 NAAQS is far more protective of human health than the prior SO 2 NAAQS and promises huge3 health benefits. EPA has estimated that 2,300

- 5,900 premature deaths and 54,000 asthma attacks a year will be pre vented by the new standard. Envtl. Prot. Agency, Final Regulatory Impact Analysis (RIA) for the SO 2 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 SO 2 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 SO 2 NAAQS was up to $36 billion dollars if attained by 2020. Final SO 2 NAAQS Rule , 75 Fed. Reg. at 35,588.

B. Implementation of the NAA QS

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 pr omulgation 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 are as, 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 Cl ean 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 maint enance 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”) th rough 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 ea ch 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 m ay 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. D ep’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 Pla in 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 exceed ances 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 supp orts 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. Thi s 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 covere d 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) (emphasi s 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 attainm ent 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 sec tion 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 sufficien t to demonstrate attainment and maintenance of the NAAQS. For example, in March 2006, EPA disapproved Missouri’s attempt to revise the SO 2 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, th at 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 explai ned 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 I

SIP, EPA expressed concern that the SO 2 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 requiremen ts specified in appendix W of this part (Guideline on Air Quality Models).” (emphasis added). Consequently, of relevance to our discussion of the SO 2 NAAQS in these comments, 40 C.F.R. § 51.112(a)(1) supports the use of sulfur dioxide air dispersion modeli ng 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 aver age) 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 an nual 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 o f 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 reques t to EPA to revise its sulfur dioxide I

- SIP for the ArcelorMittal Burns Harbor facility to remove the SO 2 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 Rev ision 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 “redund ant, unnecessary, or that its removal would not result in or allow an increase in actual SO 2 emissions,” and, consequently, that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration, thus u ndermining the SIP’s ability to ensure protection of the SO 2 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 ex ceedances 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 ‘emis sion 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 w hich 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 the7 Clean Air Act “directs the EPA to withhold approval from a state implementation plan if the ‘maintenance of [the] stand ard’ 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 Indus trial, 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 a mendments 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 wh ich 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 as sure 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 emissio n 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 satisf ies 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 tha t 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 incorrect ly 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 Env tl. 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 i f 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 non

interference with current attainment requirements. Id. at 1155. Th e 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 othe r 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. E PA MUST DISAPROVE WE ST VIRGINIA’S PROPOS ED INFRASTRUCTURE SIP BECAUSE IT FAILS TO MEET THE REQUIRE MENTS OF SECTION 110(A)(2) OF THE CLE AN AIR ACT

A. The Proposed I

- SIP Fails to Inclu de Enforceable One

- Hour SO 2 Emission Limitations to Ensure Attainment and Maintenance of the Primary SO 2 NAAQS

West Virginia’s Proposed I

- SIP fails to include restrictions on major SO 2 sources to ensure that areas not designated nonattainment will attain and maintain the new one

- hour SO 2 NAAQS.

1. EPA May Not Approve the Proposed I

- SIP As It Fails To Include Enforceable One

- Hour SO 2 Emission Limits for Sources Currently Allowed to Cause Exceedances of the NAAQS
The Proposed I

- SIP fails to include adequate en forceable emission limitations or other required measures for sources of SO 2 sufficient to ensure attainment and maintenance of the 2010 SO 2 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 impor tant for meeting the one

- hour SO 2 NAAQS given the “strong source

- oriented nature of SO 2 ambient impacts.” Final SO 2 NAAQS Rule, 75 Fed. Reg. at 35,570. Nationally, large point sources account for 95 percent of SO 2 emissions, 66 percent of which come from f ossil 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 SO 2 emissions come from coal electric generating units (“EGUs”)

. See SO2 NEI All Sectors(2011)_28 Apr 20 14.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 one

hour SO 2 standard. In fact, the Proposed I

- SIP would simply allow the major air pollution9 sources in the state to co ntinue 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. A lbans, West Virginia, Sierra Club Evaluation of Compliance with 1

- hour NAAQS for SO 2 (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 SO 2 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 SO 2 (Oct. 25, 2011) [hereinafte r “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 SO 2 emissions with the 2010 one

- hour primary SO 2 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 SO 2 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 SO 2 NAAQS, because this is what is allowed in each plant’s permit.
The modeling prot ocols 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 SO 2 NAAQS. Additionally, the modeler used the most recent version of AERMOD, and AE RMET 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 t hat the results may understate the plants’ SO 2 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

- ho ur SO 2 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 t hirty

- one c ounties 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 SO 2 NAAQS. See generally Ai r Quality Designations for the 2010 Sulfur Dioxide (SO 2 ) 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 t hose containing monitors that recorded exceedances of the NAAQS. See Final 2010 SO 2 Designations at 47,191 (designating areas with monitor violations from 2009

- 2011 as nonattainment).10 areas, improperly provides for continued permissive SO 2 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 ( μ g/m 3 ) Background ( μ g/m 3 ) 7 Total Impact Facility Impact plus Background ( μ g/m 3 ) SO 2 NAAQS ( μ g/m 3 ) 8 Counties Impacted (Not

Designated Nonattainment)

Allowable 479.5 54.9 534.4 196.2 Amos Plant

Maximum 702.8 54.9 757.7 196.2 Putnam, Lincoln, Cabell, Kanawha,

Jackson, Mason Allowable 1,333.2 54.9 1,388.1 196.2 Harrison 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,

Taylor 9
Allowable 10,782.4 91.6 10,874.0 196.2 Kanawha

Plant 10 Maximum 9,124.1 91.6 9,215.7 196.2 Kanawha, Clay, Fayette, Logan, Boone, Wyoming Raleigh, Nicholas, Roane, Lincoln, Brax ton, 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 reflec t the years the reports were comp leted. Even without background levels, all plants are still modeled to violate the NAAQS.
8 The 75 ppb standard can be converted to μ g/m 3 as follows: 75/0.3823 = 196.2 μ g/m 3

. 9 Harrison Power Station is also impacting Ohio and Pennsylvaia.
10 Kanawha Plan t 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 . In deed, the plan should i ncorporat e 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 SO 2 pollution, is necessary to ensure attainment and m aintenance 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 SO 2 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 ens ure that all areas of West Virginia attain and maintain the SO 2 NAAQS. 11

Table 2: Limits Necessary to Achieve and Maintain the One

- Hour SO 2 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 SO 2 NAAQS based on their allowable emission rates. Therefore, EPA must impose additiona l 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 SO 2 - emitting facilities), including the requirement to maintain compliance with the 2010 SO 2 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 SO 2 NAAQS
As outlined by EPA in the Final SO 2 NAAQS Rule, 75 Fed. Reg. at 35,551, air dispersion modeling is the best method for evaluating the short

- term impacts of large SO 2 sources. Th is 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 gener ally 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 SO 2 modeling to establish emission limits on several plants in order to avoid nonattainment designations. See Black Dog Plant Permit No. 03700003

- 1 1, 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), attach ed hereto as Ex. 9. Plant Required Total Facility Reduction Based on Allowable Emissions (%) Required Total Facility Emission Rat e (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% 60.512 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 SO 2 standard. See
e.g ., U.S. EPA , Implementation of the 1

- Hour SO 2 NAAQS Draft White Paper for Discussion at 3, fn. 1, [hereinafter “EPA White Paper”], available at http://www.epa.gov/airquality/sulfurdioxide/pdf s/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. 201 0) (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 SO 2 Guideline Document, EPA noted that “for SO 2 attainment demonstrations, monitoring data alone will generally not be adequate,” U.S. EPA, 1994 SO 2 Guideline Document, [hereinafter “1994 SO 2 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 SO 2 will ge nerally 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 S O 2 Guideline Document goes on to note that monitoring alone is likely to be inadequate: “[f]or SO 2 , dispersion modeling will generally be necessary to evaluate comprehensively a source's impacts and to determine the areas of expected high concentrations ba sed 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 qua lity 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 cert ain 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 Administratio n. In 1978, EPA designated Laurel, Montana as nonattainment “due to measured and modeled violations of the primary SO 2 standard.” Mont. Sulphur & Chem. Co. , 666 F.3d at 1181 (citing 43 Fed. Reg. 8,962 (Mar. 3, 1978)).

EPA’s final 2010 SO 2 NAAQS rule simpl y built upon EPA’s historical practice of using modeling to determine attainment and nonattainment status for SO 2 NAAQS. In doing so, EPA properly recognized the “strong source

- oriented nature of SO 2 ambient impacts,” Final SO 2

12 DEQ also has long been on notice that modeling data is an important resource in the SO 2 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 co ncluded 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 ava ilable method for assessing short

- term ambient SO 2 concentrations in areas with large point sources.”). Accordingly, in promulgating the 2010 SO 2 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 SO 2 standard “could better address several potentially problematic i ssues than would the narrower monitoring

- focused approach discussed in the proposal for the SO 2 NAAQS, including the unique source

- specific impacts of SO 2 emissions and the special challenges SO 2 emissions have historically presented in terms of monitoring short

- term SO 2 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, a nd 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 SO 2 . 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 la bors 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 full

capacity op erations 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 vic inity.” 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 me asurements 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 Impro vement 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 SO 2 NAAQS is attained and whether individual sources cause or contribute to a violation of the SO 2 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 Guid eline 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 Pro tection 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 i n 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 represente d 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 t o other

models.

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 f or 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 (“NO 2 ”), fine particulate matter (“PM 2.5 ”), SO 2 NAAQS, and Prevention of Significa nt 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 cons istency 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 SO 2 sources

— even with conditions of low wind speed, the use of off

- site meteorological dat a, 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 condit ions. 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 SO 2 evaluation included wind speeds as low as 0.37 m/s;

an d 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 A ct § 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 trans

boundary sul fur 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 SO 2 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 relevan t 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 SO 2 NAAQS, modeling is the mo st accurate means of determining attainment with the NAAQS, Final SO 2 NAAQS Rule at 35,551, 35,570, yet the West Virginia Proposed I

- SIP lacks SO 2 emissions limitations informed by air dispersion modeling. As a result, the proposed amendment fails to ensur e that West Virginia will achieve and maintain the 2010 one

- hour SO 2 NAAQS. To comply with the Act’s obligations, EPA must require adequate emissions limits in the I

- SIP

― that is, source

- specific one

- hour SO 2 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 SO 2 Emission Limits With a One

- Hou r 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 SO 2 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 SO 2 NAAQS. For instance, i n 2011, EPA disagreed with th e 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, Kansa s 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 . . . SO 2 NAAQS .

. . the permit needs to contain . . . SO 2 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 should16 be consisten t 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 t he 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 Environmen tal Appeals Board confirmed that emission limits for SO 2 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. Au g. 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

- h our averaging period, EPA must include monitoring of SO 2 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 station ary sources and to submit periodic emissions reports. In order to ensure emission limits which are protective of the one

- hour SO 2 NAAQS, the I

- SIP must require that SO 2 emissions are monitored from these sources during every hour of operation, regardless o f whether SO 2 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. § 741 0(a)(2)(A). Only one

- hour averaging periods can ensure compliance with the one

- hour SO 2 NAAQS. Therefore, to ensure that all areas in West Virginia attain and maintain the one

- hour SO 2 NAAQS, EPA must require enforceable emission limits with one

- hour avera ging times, monitored continuously, for coal

- fired power plants and other large sources of SO 2 . 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 ade quate 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 SO 2 levels exceed the one

- hour NAAQS. See EPA, Next Steps for Area Designations and Implementation of the Sulfur Dioxide Na tional 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 SO 2 NAAQS (in the f orm 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” (em phasis added)). EPA should use this opportunity to do exactly that

— add enforceable emissions limits to prevent nonattainment designations later on17 and protect public health. The modeling reports discussed above show that t hirty

- one counties in West Virgini a 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 SO 2 emissions, EPA must ensure that large so urces of SO 2 cannot cause exceedances of the one

- hour SO 2 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 h aving t hirty

- one counties formally designated as nonattainment and protect public health by using this opportunity to add enforceable emissions limits to attain and maintain the SO 2 NAAQS.
Addressing the issue now is also a way to bring regulatory certain ty 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 SO 2 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 res ult, 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 o f pollution controls for MATS, Regional Haze, or CSAPR only to conclude that that the suite of controls is inadequate to comply with the SO 2 NAAQS and that a second suite of controls is necessary. Thus, complying with the SO 2 NAAQS may add little or no add itional capital cost to the costs of complying with other rules

— provided that the sources can factor the SO 2 NAAQS into their initial decision on which controls to install.
Indeed, industry itself has made this same exact point to EPA, though in slightly d ifferent
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 dead line. This may result in a series of sub

optimized 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 the se facilities now, EPA can prevent a source from incurring additional expenses through piecemealed legislation.18 To avoid inevitable nonattainment designations in t hirty

- 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 SO 2 do not cause exceedances of the

one

- hour SO 2 NAAQS.

5. EPA Must Disapprove of the Proposed I

- SIP, Because of its Failure To Include Measures That Ensure Compli ance With Section 110(a)(2)(A) of the Act Regarding the 2010 SO 2 NAAQS
The statutory and regulatory sections that DEQ incorporated into its Proposed I

- SIP are insufficient to ensure compliance with the 2010 SO 2 NAAQS. Most striking is that none of the rule s and regulations cited in West Virginia’s Proposed I

- SIP include appropriate emission limits for the 2010 SO 2 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 SO 2 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 le vel, 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 Repor t 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 obliga tion.
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 SO 2 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 one

hour enforceable limitations with proper averaging times not based on heat limits, which will ensure attainment and maintenance of the 2010 SO 2 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 SO 2 NAAQS. EP A 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 SO 2 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 contri buting 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 model ing 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 emissio ns 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) cont ribute 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 Generat ion , 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
pr erequisite 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 req uired 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 inter state 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 Su preme 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 emiss i ons and gives upwind states the opportunity to propose SIPs allocating t hose budgets among in

state 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).
14 Even if CSAPR is fully implemented, EPA is still required to address the pollutants that are c ontributing 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 NO x SIP Call, EPA has used modeling to determine pollutants’ cross

- state impacts. Note that20 D. EPA Must Disapprove the Proposed Infrastructure SIP Because It Fails to Protect Visibility in Other States

Ever y 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 othe r 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 a t 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 Vir ginia’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 SO 2 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 imp lementation 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. Ci rcuit 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