August 22, 2011

BY ELECTRONIC MAIL

Thomas Webb

EPA Region 9

Planning Office

Air Division

75 Hawthorne St.

San Francisco, CA 94105

Webb.thomas@epa.gov

Re: Docket ID No. EPA-R09-OAR-2011-0130, Proposed Approval of Nevada Clean Air 

Act Regional Haze State Implementation Plan 

Dear Mr. Webb:

WildEarth Guardians submits the following comments in response to the Environmental 

Protection Agency’s (“EPA’s”) proposed approval of Nevada’s State Implementation Plan 

(“SIP”) implementing the Clean Air Act’s regional haze program. See 76 Fed. Reg. 36450-

36468 (June 22, 2011). We object to the proposed approval for the following reasons:

1. The BART Determination for Reid Gardner is Inconsistent with the Clean Air Act

We are concerned over the best available retrofit technology (“BART”) determination for 

boilers 1-3 at the Reid Gardner coal-fired power plant. According the proposed rule, BART for 

the boilers would be a sulfur dioxide (“SO2”) emission limit of 0.15 lb/mmbtu for all three 

boilers based on a 24-hour averaging period, a nitrogen oxide (“NOx”) emission limit of 0.20 

lb/mmbtu for boilers 1 and 2 and 0.28 lb/mmbtu for boiler 3 based on a 12-month averaging 

period, and a particulate matter (“PM”) limit of 0.015 lb/mmbtu based on a 3-hour averaging 

period. See 76 Fed. Reg. 36463. These limits are not supported by BART requirements under 

the Clean Air Act and EPA regulations implementing the regional haze program and further 

appear to be unenforceable as a practical matter. The EPA there cannot approve Nevada’s 

proposed regional haze SIP.

To begin with, the SO2 limits do not appear to represent the “degree of reduction 

achievable through the application of the best system of continuous emission reduction,” taking 

into account various factors, including cost of compliance and energy, nonair quality impacts, 

and other factors. See 40 C.F.R. § 51.301 (setting forth definition of “best available retrofit 
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technology”). Notably, although the EPA has proposed to approve the proposed BART limit of 

0.15 lb/mmbtu, it appears that Reid Gardner is already meeting emission limits that are less than 

half of this proposed limit. Indeed, according to Clean Air Markets data from the EPA, units 1-3 

are meeting annual sulfur dioxide emission rates of between 0.054 and 0.064 lb/mmbtu and have 

for at least the last two years. See Exhibits 1 and 2, 2010 and 2009 Clean Air Markets Data for 

Reid Gardner Units; see also Table below. Furthermore, even Nevada recognizes that SO2

emissions increases will occur as a result of its proposed BART. The State’s SIP submission 

indicates that SO2 emissions will increase by 115 tons/year at unit 1, 390 tons/year at unit 2, and 

333 tons/year at unit 3. Given that the power plant is already meeting SO2 emission rates far 

below the proposed 0.15 lb/mmbtu limit, the EPA cannot reasonably conclude that an emission 

rate of 0.15 lb/mmbtu represents BART under the Clean Air Act. Fundamentally, BART must 

achieve emission reductions. Although the EPA is allowed to take into account various factors 

in determining BART, the Agency cannot use these factors to allow increases in emissions. 

2009 Sulfur Dioxide Emissions from Reid Gardner Units 1-3

Unit SO2 Emissions 

(pounds/year) Heat Input (mmbtu) SO2 Emission Rate (lb/mmbtu)

1 344,400 6,374,908 0.054

2 307,400 5,590,251 0.055

3 442,600 7,549,004 0.058

2010 Sulfur Dioxide Emissions from Reid Gardner Units 1-3

Unit SO2 Emissions 

(pounds/year) Heat Input (mmbtu) SO2 Emission Rate(lb/mmbtu)

1 401,000 6,339,957 0.063

2 438,200 6,967,468 0.063

3 486,200 8,080,157 0.060

We are especially concerned because the Clean Air Markets data indicates that, on 

average over an entire year, units 1-3 are capable of meeting emission rates far below the 

proposed 0.15 lb/mmbtu. Although Nevada has proposed an emission rate based on a 24-hour 

rolling average, in effect this allows Reid Gardner to emit much more than what it is currently 

emitting.

Nevada seems to assert that SO2 will be reduced on a cumulative basis, and therefore any

increases at Reid Gardner will be acceptable. However, Nevada has not opted to propose a 

BART alternative in accordance with 40 C.F.R. § 51.308(e) and furthermore has provided no 

analysis showing that any claimed BART alternative will achieve greater reasonable progress 

toward natural visibility conditions in Class I areas. The Clean Air Act is clear that if an 

alternative to BART is adopted, that the alternative “must achieve greater reasonable progress 

than would be achieved through the installation and operation of BART.” 40 C.F.R. § 

51.308(e)(2). Neither Nevada nor the EPA has provided any information indicating that 

Nevada’s BART alternative satisfies the requirements of 40 C.F.R. § 51.308.
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We are also concerned that the proposed NOx limits also do not represent BART. EPA 

has recently found that selective catalytic reduction (“SCR”) constituted BART for the San Juan 

Generating Station in New Mexico, a much larger coal-fired power plant, even taking into 

account the cost of compliance and nonair quality and energy impacts. See EPA, Approval and 

Promulgation of Implementation Plans; New Mexico; Federal Implementation Plan for Interstate 

Transport of Pollution Affecting Visibility and Best Available Retrofit Technology 

Determination, Final Rule, 76 Fed. Reg. 52388-52440 (Aug. 22, 2011). The Agency proposed a 

BART NOx limit of 0.05 lb/mmbtu, far stronger than what Nevada has proposed and EPA has 

proposed to approve. 

In this case, it does not appear as if EPA objectively assessed Nevada’s claims that SCR 

would be too costly or pose inordinate energy or nonair quality impacts. In fact, although EPA 

cites Nevada’s claims that there would be nonair quality impacts associated with the use of SCR, 

the Agency never actually undertakes any effort to verify these claims. Of significant concern is 

that although EPA cites Nevada’s claims of nonair quality impacts, there is no effort to weigh 

these impacts against the attendant air quality and visibility improvements that would result from 

the use of SCR. There is simply no evidence provided that any nonair quality impacts would 

outweigh the benefits of installing SCR in order to reduce haze forming pollution. It is 

noteworthy that EPA recently found that the energy and nonair quality impacts of SCR “do not 

present sufficient reason” to disqualify the technology from consideration as BART. 76 Fed. 

Reg. 501

Furthermore, with regards to cost-effectiveness, Nevada’s assessment of costeffectiveness is grossly contrary to the Clean Air Act. In fact, it appears that Nevada simply 

chose the cheapest air pollution control scheme as BART, completely overlooking the fact that 

SCR achieved greater emission reductions and therefore achieved greater public health and 

welfare benefits. The Clean Air Act did not contemplate that a consideration of cost impacts 

lead to the adoption of the lowest common denominator. In this case, however, it appears that 

Nevada did just that. Instead of determining the best system of continuous emission reductions, 

the State simply adopted the cheapest way out. The EPA cannot approve such a BART 

determination as it fundamentally is at odds with the intent and plain language of the Clean Air 

Act’s BART requirements.

We are particularly concerned that Nevada assessed the cost-effectiveness of SCR based 

on an assumed limit of 0.07 lb/mmbtu. However, EPA recently finalized a BART determination 

for the San Juan Generating Station in New Mexico that established a limit of 0.05 lb/mmbtu 

based on the use of SCR. See 76 Fed. Reg. 52388. In proposing that rule, the EPA explicitly 

noted that the cost-effectiveness of meeting an emission rate of 0.05 lb/mmbtu was greater than 

meeting an emission rate of 0.07 lb/mmbtu. See id. at 502. EPA has not similarly undertaken 

any effort to assure that Nevada assessed the cost-effectiveness of SCR based on the actual 

technological capabilities of the control. 

We are also concerned that Nevada’s cost-effectiveness analysis for SCR assumes that 

the cost of utilizing low NOx burners with over-air fire will be a new expense. According to 

EPA’s Clean Air Markets data, however, the Reid Gardner power plant is already operating with 

low NOx burners and over air fire. See Exhibit 3, EPA, Clean Air Markets Data for Reid 
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Gardner with Information on Air Pollution Controls. Even Nevada Energy touts Reid Gardner as 

having “special burners and an over-fire air system to reduce oxides of nitrogen emissions.” See

Exhibit 4, Nevada Energy, Reid Gardner Fact Sheet. Thus, the cost of installing low NOx 

burners with over-air fire adds no cost to the current operation of the power plant. Accordingly, 

EPA cannot approve Nevada’s cost analysis as accurate or indicative of the actual cost of 

installing and operating SCR.

However, even assuming that Nevada’s cost assumptions regarding SCR are valid, it 

appears that there is no basis to conclude that such costs are not cost-effective. Indeed, in EPA’s 

recent adoption of BART limits for New Mexico’s San Juan Generating Station, the Agency 

found that the incremental cost-effectiveness of SCR ranged between $1,691 and $3,815/ton of 

NOx reduced, and that such costs were acceptable. See 76 Fed. Reg. 500-501. In this case, it 

appears that the incremental cost-effectiveness of SCR for Reid Gardner unit 1 is $3,688/ton of 

NOx reduced, which falls within EPA’s acceptable range that was established through the San 

Juan Generating Station BART determination. However, given that the cost-effectiveness of 

SCR is likely much higher given that Nevada did not base its analysis on the actual capabilities 

of SCR, or on the actual costs of installing SCR in light of the fact that units 1-3 already have 

low NOx burners and over-air fire, it is likely that the cost of SCR for units 1 and 2 also fall 

within the EPA’s range of cost-effectiveness. 

For the PM limits, we are concerned that the proposed BART determination is 

unenforceable because there are no monitoring, recordkeeping, or reporting requirements 

proposed that would actually ensure compliance with the 24-limits. There are simply no 

monitoring requirements proposed that would actually ensure that the PM limit is met on a 

continuous basis. This is contrary to the Clean Air Act, which defines BART based on 

continuous emission reductions.

We are also concerned with the timing for implementation of the proposed BART 

emission limits for Reid Gardner. According to the proposed rule, implementation would be 

required “...by January 1, 2015, or no later than five years after approval of Nevada’s RH SIP, 

whichever comes sooner.” 76 Fed. Reg. 36462. The Clean Air Act requires that BART be 

implemented “as expeditiously as practicable,” but “in no event later than five years after the 

date of approval of a plan revision[.]” 42 U.S.C. § 7491(g)(4). In this case, the EPA has not 

demonstrated that “by January 1, 2015” is as expeditiously as practical for complying with 

BART at Reid Gardner, nor shown that it is reasonable to allow the facility the full five years to 

come into compliance with BART. In fact, there is no assessment in the proposed rule as to how 

the EPA determined that the proposed compliance timeframe is consistent with the Clean Air 

Act. The EPA cannot blindly approve Nevada’s proposed compliance timeframe without 

assessing whether it is consistent with the Clean Air Act. In this case, there is no justification for 

the proposed five year compliance or 2015 compliance timeframe.

2. The Reasonable Progress Goals are not Supported by an Adequate Assessment 

under the Clean Air Act

We are concerned that the reasonable progress goals in the proposed SIP approval are not 

actually based on standards set forth by the Clean Air Act. As the EPA notes, states are required 
5

to consider the “costs of compliance,” “the time necessary for compliance,” “the energy and nonair quality impacts of compliance,” and “the remaining useful life of any potentially affected 

sources” in assessing reasonable progress goals. 76 Fed. Reg. 36453. Unfortunately, in this 

case, it appears that EPA simply concluded that since Nevada demonstrated that it would meet 

the uniform rate of progress by 2018 in addressing visibility degradation in Class I areas (or at 

least the Jarbidge Wilderness Area), that reasonable progress goals would be met. The Agency 

then concluded that no additional controls were necessary. 

However, this approach is fundamentally at odds with the Clean Air Act. Although the 

law certainly requires that the states and EPA at a minimum ensure that a uniform rate of 

progress in reducing haze be met, the law is clear that reasonable progress goals are based first 

and foremost on “costs of compliance,” “the time necessary for compliance,” “the energy and 

non-air quality impacts of compliance,” and “the remaining useful life of any potentially affected 

sources.” See 42 U.S.C. § 7491(g)(1). Thus, if based on these factors, the states or EPA 

determine that greater progress than the uniform rate of progress can be met, the Clean Air Act 

requires that such progress be met. It is important to point out that although the Clean Air Act 

establishes a goal of meeting natural background visibility conditions, nothing precludes more 

expeditious attainment of this goal. To this end, the Clean Air Act requires the EPA to base 

reasonable progress goals based on the factors set forth under Section 169A(g), not to base them 

on the bare minimum that is required to met the uniform rate of progress. 

We are particularly concerned that EPA has overlooked opportunities to further reduce 

haze forming pollution from sources in Nevada. In particular, based on the “costs of 

compliance,” “the time necessary for compliance,” “the energy and non-air quality impacts of 

compliance,” and “the remaining useful life of any potentially affected sources,” it is likely that 

EPA would identify additional opportunities to further reduce haze. One notable source may be 

Reid Gardner unit 4. Although this source is not subject-to-BART, given the “costs of 

compliance,” “the time necessary for compliance,” “the energy and non-air quality impacts of 

compliance,” and “the remaining useful life of any potentially affected sources,” it may be 

appropriate to require additional controls on this unit in order to meet reasonable progress goals 

under the Clean Air Act. Unfortunately, neither Nevada nor the EPA undertook such an 

assessment and therefore have no basis to conclude that the proposed reasonable progress goals 

are reasonable or in compliance with the Clean Air Act. 

Given that Nevada’s reasonable progress goals are not based on the factors set forth 

under the Clean Air Act, the EPA cannot approve the proposed SIP. Unless and until the 

Agency assesses reasonable progress goals based on the factors set forth under the Clean Air 

Act, the Agency must disapprove Nevada’s submittal.

3. The Errors in the WRAP Modeling Indicate that Nevada’s URP and RP Goals are 

not Adequate Under the Clean Air Act

Adding to our concerns over the adequacy of the proposed reasonable progress goals, and 

in turn the uniform rate of progress goals, is that EPA discloses that the Western Regional Air 

Partnership (“WRAP”) modeling relied upon in support of its proposed approval of Nevada’s 

regional haze SIP is erroneous. See 76 Fed. Reg. 36464. The EPA states that as a result of the 
6

error, “the projected visibility at Jarbidge in 2019 is 11.8 dv instead of 11.1 dv (rounded up from 

11.05 dv).” Id. This seems to indicate that the baseline upon which Nevada and EPA assessed 

whether the proposed regional haze SIP would attain sufficient progress is erroneous. In reality, 

it appears that the progress claimed by Nevada will not be sufficient even to meet the uniform 

rate of progress. In fact, it appears that the uniform rate of progress may be wholly inaccurate. 

EPA asserts that this error in the modeling is inconsequential. However, this does not 

seem to be the case. EPA also asserts that a revision to the proposed SIP is also not appropriate 

because of “the significant resources needed to model projected visibility impacts and the time 

needed for Nevada to repeat the SIP review and approval process[.]” 76 Fed. Reg. 36464. 

However, upon reading the Clean Air Act, we can find no authority that allows the Agency to 

avoid addressing significant concerns over the adequacy of a proposed SIP for these reasons. In 

fact, given that the EPA in 2009 found that Nevada had failed to submit a regional haze SIP in 

accordance with the Clean Air Act (see 74 Fed. Reg. 2392 (Jan. 15, 2009)), it would appear that 

in light of such an error, that the EPA has an affirmative duty to address such a deficiency 

through the promulgation of a federal implementation plan (“FIP”). The Agency cannot simply 

pawn off such errors and assert that Nevada lacks resources. In this case, the EPA is obligated 

by the Clean Air Act to promulgate either a full or partial FIP to address the modeling 

discrepancies and ensure that the Nevada regional haze plan is fully compliant with the Clean 

Air Act. If the EPA approves the proposed SIP even with the modeling discrepancies, the 

Agency will have abrogated its duty to ensure a legally adequate regional haze plan under the 

Clean Air Act.

4. The EPA has not Shown that the Proposed SIP Revision Will not Interfere with 

Attainment and Maintenance of the NAAQS

The EPA is duty-bound to ensure the proposed SIP does not interfere with attainment and 

maintenance of the NAAQS, in accordance with section 110(l) of the Clean Air Act. Thus, the 

EPA must ensure that the proposed SIP adequately limits air pollution in order to safeguard 

public health.

In this case, we are concerned that in proposing to approve Nevada’s proposed regional 

haze plan that the EPA has not demonstrated that the proposal adequately safeguards the 2008 8-

hour ozone National Ambient Air Quality Standards (“NAAQS”), the newly promulgated 1-hour

nitrogen dioxide (“NO2”) NAAQS, the 2006 PM2.5 NAAQS, the newly promulgated 24-hour 

PM2.5 increments for Class I areas, and the newly promulgated 1-hour SO2 NAAQS. We are also 

concerned that any final rule will not sufficiently protect any revised ozone NAAQS that may be 

finalized by the EPA in the coming weeks. These revised NAAQS were initially proposed in 

early 2010. See 75 Fed. Reg. 2938-3052 (Jan. 19, 2010). We are particularly concerned with 

this oversight in regards to the proposed Reid Gardner BART determination, which will actually 

allow increased SO2 emissions and only nominally reduce NOx emissions. 
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Thank you for the opportunity to comment.

Sincerely,

Jeremy Nichols

Climate and Energy Program Director

WildEarth Guardians

1536 Wynkoop, Suite 301

Denver, CO 80202

(303) 573-4898 x 1303

jnichols@wildearthguardians.org