Coalition Comments on Proposed Approval of Maryland’s Air Quality Implementation Plan – The Coalition To Protect America's National Parks

U.S. Environmental Protection Agency
Region 3
Four Penn Center
1600 John F. Kennedy Blvd.
Philadelphia, PA 19103-2029

Re: Comments on Proposed Approval and Promulgation of Air Quality Implementation Plans; Maryland; Regional Haze State Implementation Plan for the Second Implementation Period [EPA Docket ID No. EPA–R03–OAR–2022–0912]

The Coalition to Protect America’s National Parks, National Parks Conservation Association and Sierra Club (collectively “Conservation Organizations”), offer the following comments on the Environmental Protection Agency’s (“EPA”) proposed approval of the regional haze state implementation plan (the “MD SIP Revision” or “Revised SIP” or “SIP Submittal”) submitted by the Maryland Department of the Environment (“MDE”) on February 8, 2022. 88 Fed. Reg. 58,178 (Aug. 25, 2023) (the “Proposed Approval” or “Proposal”). As detailed below, the Conservation Organizations recognize and commend the MDE for its comprehensive and well-organized SIP Submittal and generally support EPA’s Proposed Approval of the Revised SIP.

Background

To improve air quality in our most treasured landscapes, Congress passed the visibility protection provisions of the Clean Air Act (“CAA”) in 1977, establishing “as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in the mandatory class I Federal areas which impairment results from manmade air pollution.”¹“Manmade air pollution” is defined as “air pollution which results directly or indirectly from human activities.”² In order to protect Class I areas’ “intrinsic beauty and historical and archeological treasures,”³ the regional haze program establishes a national regulatory floor and requires states to design and implement programs to curb haze-causing emissions within their jurisdictions. Every ten years, each state must submit for EPA review a state implementation plan (“SIP”) designed to make reasonable progress toward achieving natural visibility conditions.⁴ The Haze requirements in the CAA present an unparalleled opportunity to protect and restore regional air quality by curbing visibility-impairing emissions from a variety of polluting sources.

The Regional Haze Rule establishes an iterative and continual process for eliminating human-caused visibility impairment. States must ensure each subsequent plan further reduces⁵ visibility-impairing pollution and continues to improve visibility conditions at each Class I area. In the second planning period, which covers the years 2021 to 2028, reasonable progress⁶ measures are the central mechanism for reducing visibility-impairing pollution from sources. Source selection is a critical step in this process, as it ultimately informs what states determine to be reasonable progress.⁷ As a result, EPA has directed states to design and conduct their source selection analysis to ensure it “has the potential to meaningfully reduce . . . contributions to visibility impairment.”⁸ It is generally not reasonable to exclude large sources of visibility-impairing pollution from evaluation. Regional haze SIPs, thus, must provide “emissions limits, schedules of compliance and other measures as may be necessary to make reasonable progress towards meeting the national goal.”⁹

Implementing the regional haze requirements promises benefits beyond improving views. Pollutants that cause visibility impairment also harm public health. For example, oxides of nitrogen (“NOx”) are a precursor to ground-level ozone, which is associated with respiratory disease and asthma attacks. NOx also reacts with ammonia, moisture and other compounds to form particulates that can cause and/or worsen respiratory diseases, aggravate heart disease, and lead to premature death. Similarly, sulfur dioxide (“SO2”) increases asthma symptoms, leads to increased hospital visits, and can also form particulates. NOx and SO2 emissions also harm terrestrial and aquatic plants and animals through acid rain as well as through deposition of nitrates (which in turn cause terrestrial and aquatic ecosystem changes due to excess nitrogen).

In addition to public health benefits, emission reductions through regional haze SIPs can also make gains in environmental justice. There are specific legal grounds for considering environmental justice when determining reasonable progress controls. Under the CAA, states are permitted to include in SIPs measures that are authorized by state law but go beyond the minimum requirements of federal law.¹⁰ Because EPA reviews and determines whether to approve the final regional haze SIP that a state submits, EPA is required to ensure that its action addresses any disproportionate environmental impacts of the pollution that contributes to haze. Executive Orders in place since 1994 require federal executive agencies such as EPA to:

[M]ake achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.¹¹

On January 27, 2021, the current Administration signed the “Executive Order on Tackling the Climate Crisis at Home and Abroad,”¹² which amended the 1994 Order and provides that:

It is the policy of the Administration to organize and deploy the full capacity of its agencies to combat the climate crisis to implement a Government-wide approach that reduces climate pollution in every sector of the economy; . . . protects public health; . . . [and] delivers environmental justice . . . . Successfully meeting these challenges will require the Federal Government to pursue such a coordinated approach from planning to implementation, coupled with substantive engagement by stakeholders, including State, local, and Tribal governments.¹³

States can facilitate EPA’s compliance with these Executive Orders by considering environmental justice in their regional haze SIP submissions.

Moreover, EPA’s 2021 Clarifications Memo directs states to take into consideration environmental justice concerns and impacts in issuing any SIP revision for the second planning period.¹⁴ EPA’s 2019 Regional Haze Guidance for the Second Planning Period specifies that “States may also consider any beneficial non-air quality environmental impacts.”¹⁵ This includes consideration of environmental justice in keeping with other agency policies. For example, EPA also pointed to another agency program that states could rely upon for guidance in interpreting how to apply the non-air quality environmental impacts standard:

When there are significant potential non-air environmental impacts, characterizing those impacts will usually be very source- and place-specific. Other EPA guidance intended for use in environmental impact assessments under the National Environmental Policy Act may be informative, but not obligatory to follow, in this task.¹⁶

Additionally, state air agencies are entities that accept federal funding and are therefore subject to Title VI of the Civil Rights Act of 1964, which requires that “no person shall, on the ground of race, color, national origin, sex, age or disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity.” States—and EPA— have an obligation to ensure the fair treatment of communities that have been environmentally impacted by sources of pollution. That means ensuring “meaningful involvement” of impacted communities. Environmental justice also requires the “fair treatment” of these communities in the development and implementation of agency programs and activities, including those related to the SIPs.

Comments on Maryland’s Revised SIP

The Conservation Organizations applaud the MDE for its remarkable achievements in reducing SO2 and NOx emissions during the first planning period. These reductions have greatly improved visibility at nearby Class 1 areas, including Shenandoah National Park in Virginia. Figure 2-3 on page 29 of the Revised SIP ¹⁷shows the drastic decrease in SO2 emissions, particularly from 2009 to 2010.

Moreover, the MDE has engaged with many of the worst haze-polluting facilities, entering into legal consent orders to eliminate the use of coal at H.A. Wagner or never again allowing the facility, C.P. Crane, to stockpile or burn coal. Additionally, the MDE notes in the Revised SIP that Luke Paper Company, one of the worst polluters of Shenandoah National Park, has closed and relinquished all air permits. And coal units at Dickerson and Chalk Point Generating Stations have been voluntarily permanently shut down and cannot be restarted without new permits. All of this work to decrease Maryland’s output of air pollution is applauded and strongly supported by the Conservation Organizations. It is apparent that MDE is committed to clear skies not only for our national parks and wilderness areas, but our communities across the region. Maryland’s SIP should be a model for all of EPA Region 3.

The Conservation Organizations would also like to commend the MDE for their robust consultation with the Federal Land Managers (“FLMs”). The MDE engaged early with the National Park Service (“NPS”) as part of the FLM consultation period and provided in-depth information regarding control technologies, emissions limits, and retirement plans for the majority of sources identified by NPS.

Areas of Improvement

Although the MDE Revised SIP was comprehensive and well done, the Conservation Organizations note below some areas of improvement that the EPA should consider in the Proposed Approval.

A. EPA Should Ensure Expected Facility Retirements or Fuel Conversions Are Federally Enforceable.

EPA has repeatedly explained that states may only rely on a voluntary shutdown or fuel-conversion date to excuse a facility from complying with additional reasonable progress measures if the shutdown or fuel-conversion date is a federally enforceable part of the state’s SIP. “[O]n-the-way measures, including anticipated shutdowns that are relied on to . . . shorten the remaining useful life of a source, are necessary to make reasonable progress and must be included in a SIP.”¹⁸ Thus, “[i]n the situation of an enforceable requirement for the source to cease operation . . . , a state may use the enforceable shutdown date as the end of the remaining useful life,” as long as the SIP includes the shutdown (or fuel-conversion) date.¹⁹

Here, the MDE excluded the Brandon Shores Generating Station from a four-factor analysis and did not impose any reasonable progress measures because the facility owner has reached an agreement with the Sierra Club to cease coal combustion at the site by December 31, 2025.²⁰ The MDE National Pollution Discharge Elimination System (NPDES) permit for Brandon Shores also requires the plant to cease burning coal by prohibiting the discharge of coal combustion wastewaters after January 1, 2026. Talen, the company that operates Brandon Shores, recently submitted a deactivation notice to the PJM grid, requesting a deactivation date of June 1, 2025.²¹ However, PJM has opined that transmission upgrades with a price tag of around $870 million are necessary to resolve reliability issues surrounding Brandon Shores’s retirement, and will not be fully implemented until 2028 or beyond, suggesting that PJM is likely to request that Brandon Shores continue operating beyond 2025 under a reliability-must-run²² order—regardless of that facility’s contribution to regional haze and air pollution in Maryland. As a result, the facility’s future operations are at least uncertain.

Consequently, EPA should require MDE to amend the Revised SIP to either (1) make Brandon Shores’s plans to cease coal combustion or retire a federally enforceable part of the State’s Revised SIP or (2) conduct a four-factor analysis for Brandon Shores to ensure the facility is supporting the MDE long-term strategy and reasonable progress goals.

B. The AES Warrior Run Facility Should Be Analyzed for SO2 Reduction Opportunities, Per the Recommendation from the Federal Land Managers.

As noted above, the source selection process is critical to determining whether a state has satisfied the requirements of the Regional Haze Rule in the second implementation period. To that end, states should select large pollution facilities that contribute to visibility impairment in Class I areas for a four-factor analysis to meet their reasonable progress goals.²³

The AES Warrior Run Facility is a 205-megawatt capacity cogenerating facility.²⁴ According to the Revised SIP, this facility emitted between 891 and 1,236 tons of SO2 from 2013 to 2017.²⁵ It also only reduced its SO2 emissions by 2.11% between 2009 and 2017, which is the smallest emission reduction percentage of any coal unit analyzed in the Revised SIP by more than 85%.²⁶ Consequently, this facility is a substantial source of SO2 in Maryland. According to NPCA’s analysis, Warrior Run has a cumulative Q/d of 60.8.²⁷ NPS also noted in its comments on the Revised SIP that AES Warrior Run emitted 1,027 tons of SO2 in 2019 and has a high Q/d of 16.3 for Shenandoah National Park,²⁸ signifying a high impact on that park.

Despite its substantial SO2 emissions, the MDE did not select AES Warrior Run for a four-factor analysis. Instead, the MDE ignored the Federal Land Managers’ recommendations to review emissions reduction opportunities for the AES Warrior Run facility. Per pages 2 and 3 of NPS’s Comments (listed after Appendix 20 in the Revised SIP), NPS found that additional SO2 controls could reduce annual SO2 emissions at the facility.²⁹ Additionally, the MDE did not consider the cessation of coal combustion as a potential reasonable progress measure. The Conservation Organizations agree with NPS’s recommendation that analysis of additional control measures is warranted for this facility and urge EPA to ensure this analysis is completed before finalizing the Revised SIP.

C. EPA Must Thoroughly Consider Environmental Justice Impacts for Which the Revised SIP Revision Fails to Adequately Account.

The Regional Haze Rule lists four factors that states must consider when they set reasonable progress goals for Class I areas and when they select reasonable progress measures for sources: the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected sources.³⁰ As discussed above, this third factor directs states to consider the broader environmental implications of their regional haze plans, by requiring an analysis of the “non-air quality environmental impacts of compliance,” including how a source’s emissions contribute to environmental injustices.³¹

EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations and policies.”³² EPA further recognizes that some communities “bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations and policies.”³³ These environmental justice impacts often take the form of disproportionately high levels of water pollution, soil contamination, lead pollution, and air pollution in low-income and minority communities.

The Revised SIP fails to adequately incorporate or address environmental justice concerns, and indeed, despite the EPA Administrator’s clear direction to the agency in April 2021,³⁴ “EPA did not perform an [environmental justice] analysis and did not consider [environmental justice] in this [Proposed Approval].”³⁵ Available information from the EPA EJScreen Database shows that communities around AES Warrior Run, NRG Morgantown Generating Station and Wheelabrator Baltimore have high percentiles of low-income populations and unemployment rates, two of the Socioeconomic Indicators in the Database. Additionally, the community near the Wheelabrator Baltimore facility has environmental justice indexes for PM2.5 and Ozone above the 80th percentile for the State.³⁶

To ensure the health and well-being of the communities in Maryland and beyond, the Conservation Organizations encourage EPA to ensure environmental justice impacts are considered before acting to approve the Revised SIP.

D. The MDE Comment Period on the Revised SIP Was Not Sufficiently Publicized and Stakeholders Were Unable to Participate.

The state public comment period on the MDE’s Revised SIP was obscured from public involvement despite our attempts to regularly communicate with the MDE staff as stakeholders. The Revised SIP was published on the MDE website just after the Thanksgiving federal holiday and the comment period included two additional federal holidays, Christmas Day and New Year’s Day. Not only did these holidays limit the amount of time available to prepare comments, but the public comment period also ran at the height of the holiday season when staff at agencies and the Conservation Organizations are largely unavailable.

The complete lack of public engagement is evidenced in Appendix 20 of the Revised SIP.³⁷

The contact list for the public hearing notice only included one non-state or federal government contact. Staff at two of the Conservation Organizations represented here were not notified when the Revised SIP was published for public comment even after repeated attempts to garner that information.
The transcript of the public hearing on January 4, 2022, has zero non-MDE staff attendees and no individual made a public comment.
The only “public” comments received during the state public comment period were from federal agencies—NPS and the U.S. Forest Service. No public individuals or organizations submitted a comment.

Therefore, the Conservation Organizations, and the public, were not sufficiently notified of the State’s comment period on the Revised SIP. As such, our opportunity to comment directly to the MDE was missed. The Conservation Organizations want to ensure that EPA is aware of the lack of public communication related to the State’s public comment period on the Revised SIP.

Conclusion

The Conservation Organizations acknowledge the work completed by the MDE on the Revised SIP, and the progress the State has made in reducing haze-causing pollution over the last decade. We look forward to seeing even more reductions in haze-causing pollution over the second planning period.

However, we urge EPA to address the issues on the Revised SIP noted above prior to approval.

Sincerely,

Michael B. Murray
Chair
Coalition to Protect America’s National Parks Washington, D.C.

Edward Stierli
Senior Regional Director, Mid-Atlantic Region National Parks Conservation Association Arnold, MD

Josh Tulkin
Director, Maryland Chapter Sierra Club
Riverdale, MD

CC:

Neil Bigioni, Deputy Regional Counsel, Region 3.

Cristina Fernandez, Director, Air and Radiation Division, Region 3.

Megan Goold, Planning & Implementation Branch, Air and Radiation Division, Region 3.

Keila Pagan-Incle, Planning & Implementation Branch, Air and Radiation Division, Region 3.

Adam Yarina, Planning & Implementation Branch, Air and Radiation Division, Region 3.

1
42 U.S.C. § 7491(a)(1).
2
Id. § 7491(g)(3).
3
H.R. Rep. No. 95-294, at 203-04 (1977), reprinted in 1977 U.S.C.C.A.N 1077, 1282.
4
42 U.S.C. § 7491(b)(2).
5
40 C.F.R. § 51.308(f).
6
Id. § 51.308(f)(2)(i) (“The State must evaluate and determine the emission reduction measures that are necessary to make reasonable progress . . . .”).
7
Memorandum from Peter Tsirigotis, Dir., Env’t Prot. Agency, to Reg’l Air Dirs., Regions 1-10 at 3 (July 8, 2021), https://www.epa.gov/system/files/documents/2021-07/clarifications-regardingregional-haze-state-implementation- plans-for-the-second-implementation-period.pdf [hereinafter “EPA 2021 Clarifications Memo”].
8
Id
9
42 U.S.C. § 7491(b)(2).
10
See Union Elec. Co v. EPA, 427 U.S. 246, 265 (1976) (“States may submit implementation plans more stringent than federal law requires and . . . the Administrator must approve such plans if they meet the minimum requirements of [the Clean Air Act].”); Ariz. Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1126 (10th Cir. 2009) (citing Union Elec. Co., 427 U.S. at 265); BCCA Appeal Grp. v. EPA, 355 F.3d 817, 826 n.6 (5th Cir. 2003) (“Because the states can adopt more stringent air pollution control measures than federal law requires, the EPA is empowered to disapprove state plans only when they fall below the level of stringency required by federal law.”).
11
Exec. Order No. 12898, § 1-101, 59 Fed. Reg. 7,629 (Feb. 16, 1994), as amended by Exec. Order No. 12948, 60 Fed. Reg. 6,381 (Feb. 1, 1995).
12
Exec. Order No. 14008, 86 Fed. Reg. 7,619 (Jan. 27, 2021).
13
Id. § 201.
14
EPA 2021 Clarifications Memo at 16.
15
Memorandum from Peter Tsirigotis, Dir., Env’t Prot. Agency, to Reg’l Air Dirs., Regions 1-10 at 49 (Aug. 20, 2019), https://www.epa.gov/sites/default/files/2019-08/documents/8-20- 2019__regional_haze_guidance_final_guidance.pdf [hereinafter “EPA 2019 Guidance”].
16
Id. at 33.
17
See https://www.regulations.gov/document/EPA-R03-OAR-2022-0912-0036.
18
EPA 2021 Clarification Memo at 10; see also EPA 2019 Guidance at 34.
19
EPA 2019 Guidance at 34.
20
See Revised SIP at 45. The MDE incorrectly states in the Revised SIP that the legal consent order attached in Appendix 19 requires the Brandon Shores Generating Station to cease coal combustion by 2025. Id. at 11. But a review of the legal consent order in Appendix 19 reveals no reference to this facility. See App’x 19.
21
See PJM Transmission Expansion Advisory Committee, Generation Deactivation Notification Update (June 6, 2023), https://www.pjm.com/-/media/committees-groups/committees/teac/2023/20230606/20230606-item-02— generation-deactivation-notification-update.ashx.
22
See Ethan Howland, Exelon Utilities Land $870M in PJM Transmission Projects as Q2 Earnings Slip, UTILITY DIVE (Aug. 3, 2023), https://www.utilitydive.com/news/exelon-utilities-land-870m-in-pjm-transmission-projects-q2- earnings-fall/689844/.
23
See supra p.2.
24
Email from Melanie Peters, Nat’l Park Serv. RE the Maryland Regional Haze State Implementation Plan (SIP (2018-2028 Planning Period) at 2 (Oct. 29, 2021) [hereinafter “NPS Revised SIP Comment Letter”].
25
Revised SIP at 65, tbl.2-18.
26
Id.
27
See Nat’l Parks Conservation Ass’n, Sources of Visibility Impairing Pollution, https://www.arcgis.com/apps/webappviewer/index.html?id=251cc677119d494fade7fa0d068ba87c& (last visited
28
NPS Revised SIP Comment Letter at 2; see also Revised SIP at 44, tbl.2-12.
29
NPS Revised SIP Comment Letter at 2-3.
30
See 40 C.F.R. § 51.308(d)(1)(i)(A), (f)(2)(i).
31
See, e.g., id. § 51.308(d)(1)(i)(A).
32
Env’t Prot. Agency, Learn About Environmental Justice, https://www.epa.gov/environmentaljustice/learn-about- environmental-justice.
33
Id
34
EPA Administrator Regan directed all EPA offices to clearly integrate environmental justice considerations into their plans and actions. See Press Release, Env’t Prot. Agency, EPA Administrator Announces Agency Actions to Advance Environmental Justice, Administrator Regan Directs Agency to Take Steps to Better Serve Historically Marginalized Communities (April 7, 2021), https://www.epa.gov/newsreleases/epa-administrator-announcesagency- actions-advance-environmental-justice.
35
88 Fed. Reg. at 58202.
36
EJSCREEN files to support these statements can be accessed here: https://drive.google.com/drive/folders/1wIWBVDC03HzVzJtN3N9ti7jJaUUZSGS9?usp=sharing.
37
See https://www.regulations.gov/document/EPA-R03-OAR-2022-0912-0036.