Protecting Visibility Under the Clean Air Act: EPA Establishes Modest "Phase" I Program

In the 1977 Clean Air Act Amendments, Congress directed the Environmental Protection Agency (EPA) to establish a program for protecting visibility in pristine areas.¹ This action was a response to fears that the unique scenic vistas so much a part of the nation's heritage, especially in the West, would be irrevocably lost.

Since the outset, however, efforts to put the program in place have been met with heated opposition.² The costs, it was argued, would be excessive, perhaps involving widespread retrofitting of existing sources with expensive pollution control equipment. Furthermore, the program could create an intolerable ceiling on western growth and energy development. Attempting to grapple with these concerns in the face of a less than complete understanding of the scientific issues related to visibility impairment, EPA fell well behind the statutory timetable.³

In the waning days of the Carter Administration, the Agency issued regulations establishing a program far less ambitious than the controversy would seem to warrant, and one which could be further reduced in scope by the Reagan Administration.

Pollution and Visibility Impairment

Several studies have examined visibility trends in the United States over the past thirty years.⁴ In the eastern U.S., especially the Northeast, visibility was found to have deteriorated substantially in the past 25 years, a trend which is expected to continue. In the Southwest, where scenic vistas are particularly valued, visibility is far better.⁵ Nevertheless, some dramatic declines in visibility have been observed that raise concern over future visibility trends.⁶

While dust, fog, sea spray, forest fires, and volcanoes are all important natural sources of visibility impairment, man-made sources are believed responsible for much of the deterioration of visibility noted in recent decades.⁷ Pollution produced by sources such as smelters, automobiles, utilities, and paper mills impairs visibility through the scattering and absorption of light. Smaller sized pollution particles, such as sulfates, nitrates, and carbonaceous soot, are especially efficient in deflecting light and obscuring visibility.⁸ Another important contributor is nitrogen dioxide gas produced in fossil fuel combustion, which can give the atmosphere a yellow or brownish-red tint.⁹

Some visibility problems can be traced to an identifiable emissions plume discoloring the atmosphere or obscuring the landscape. More commonly the problem is a diffuse haze which whitens the horizon and makes textures and landscape colors less discernible. The former phenomenon, called "plume blight," can normally be attributed to a single source or a small group of sources. In contrast, the latter phenomenon, known as "regional haze," is due to the combined impact of numerous sources, perhaps over an entire urban area.

Regional haze is the more serious problem, and is far more difficult to address. The sulfate and nitrate particles which play an important role are originally released as sulfur dioxide and nitrogen dioxide gases, which are transformed during a lengthy stay in the atmosphere. Sulfur dioxide comes mainly from power plants and smelters, while nitrogen dioxide is emitted in almost all fossil fuel combustion processes, including the operation of motor vehicles and fossil fuel-fired power plants.

A Brief History of Visibility Regulation

Visibility protection in pristine areas was originally expected to be achieved through EPA's prevention of significant deterioration (PSD) program.¹⁰ However, in the [11 ELR 10054] 1977 Clean Air Act Amendments, Congress concluded that PSD regulation in itself would not be sufficient, and established additional requirements keyed directly to the protection of visibility. Section 169A established as a "national goal the prevention of any future, and the remedying of any existing, impairment of visibility" from man-made pollution in scenic and pristine areas.¹¹

The visibility program was targeted to those "mandatory" Class I areas under the PSD program in which visibility is determined to be an important value.¹² Areas eligible for protection include all international parks, national wilderness areas, and national memorial parks larger than 5,000 acres, as well as national parks larger than 6,000 acres.¹³

Under § 169A visibility protection is pursued through the addition of a range of new pollution control requirements to the existing framework for air quality regulation. Specifically, § 169A mandates retrofit requirements for "newer" existing sources (those less than 15 years old at the time of the section's enactment) contributing to visibility impairment in a protected area,¹⁴ the revision of state implementation plan (SIP) requirements as needed to make "reasonable progress" toward the national visibility objectives,¹⁵ and the development by states of long-term (10- to 15-year) strategies for meeting visibility goals.¹⁶ These requirements are to be implemented by EPA in conjunction with the continued consideration of the visibility impacts of new sources seeking preconstruction permits under the PSD program.¹⁷

The 1977 Amendments established ambitious deadlines within which EPA was to set the program in motion.¹⁸ EPA was given one year in which to develop and promulgate a final list of those mandatory Class I areas in which visibility was determined to be an important value.¹⁹ Eighteen months were allotted for the preparation of a report to Congress addressing important technical aspects of visibility impairment and control.²⁰ Finally, the Agency was directed to promulgate within two years regulations requiring SIP revisions and other state actions mandated by the goals or programs of § 169A.²¹

EPA has moved steadily forward with its visibility protection program, though at a pace well behind that mandated by Congress in 1977. In November 1979 the Agency, after consultation with the Department of the Interior, issued a list of 156 Class I areas in which visibility was determined to be important.²² This rule making applied visibility protection to a total of more than 29 million acres in 36 states. The Agency's report to Congress, Protecting Visibility, was also published in late 1979.²³ It offers a sweeping review of the myriad of technical and other issues relevant to visibility regulation, and it is in many respects reflected in the program EPA eventually adopted.

The last and most important step in the process, the promulgation of visibility regulations, was prompted by a lawsuit filed in late 1979. Pursuant to a settlement entered in November 1979,²⁴ the District of Columbia Circuit Court of Appeals directed EPA to adopt final visibility regulations by November 15, 1980. The final regulations were issued on December 2, 1980.²⁵

Current Status of the Program

In its final rulemaking EPA chose to defer resolution of many of the most difficult issues surrounding visibility regulation and adopted a phased approach focusing initially on visibility impairment caused by plume blight.²⁶ The more complex and far more serious regional haze problem, caused by emissions from numerous not readily identifiable sources, is to be addressed in a later phase II.

EPA's role in the new program is one of guidance to the states and loose oversight. The 36 states with protected areas are given most of the responsibility for putting the program in place. They are also given latitude to accommodate their own economic and environmental protection priorities.²⁷ In contrast, visibility protection in the [11 ELR 10055] PSD program under § 165 requires that air quality impacts be the sole factor in new source reviews.²⁸

The federal land managers²⁹ also play an important part in the new program. In addition to a general requirement that they work closely with the states in development of their visibility programs,³⁰ the land managers are responsible for two key tasks: characterizing the quality of existing visibility in protected Class I areas³¹ and identifying "integral vistas."³²

Protection of Integral Vistas

Integral vistas are views looking outside of the Class I area which have been judged sufficiently important to visitor enjoyment of the area to warrant protection.³³ The term is a reflection of the conclusion that vistas which are "integral" to the experience of visiting the Class I area should not be impaired. This somewhat vague concept is further defined in criteria established by the Department of the Interior.³⁴

Controversy surrounding the visibility program has centered in large part on the effort to protect these areas. The proposed EPA regulations granted the federal land managers the major role in identifying integral vistas.³⁵ Vistas so identified were to be protected to the same extent as Class I areas.³⁶ States were to have little say in this process with regard to decisions having potentially important local impacts. This arrangement was met with dismay by both the states and the regulated community.

EPA's final regulations reflect a very different approach. They give the states a small role in the identification of integral vistas but allow them an essentially free hand in determining the measure of protection to be given these areas. Section 169A allows the state to consider energy and economic impacts in determining the appropriate level of protection.³⁷ It is required only that protection of these areas be consistent with "reasonable progress" toward national visibility goals.³⁸

With regard to integral vista identification, the final regulations direct the land managers to establish formal criteria to guide the process of designating vistas selected for protection.³⁹ In January 1981 the Fish and Wildlife Service and the National Park Service separately proposed identical guidelines.⁴⁰ The key criteria reflected in these guidelines are "the importance of the vista to the objectives for which the [federal] area was created" and "the contribution of the vista to visitor enjoyment of the area."⁴¹ The Park Service in its regulations also published a preliminary list of integral vistas in Class I areas under its jurisdiction.⁴² An example of a vista identified for protection is the view of the Grand Teton Range from Mount Washburn in Yellowstone National Park. The preliminary list, which includes more than 170 vistas in 42 different national parks, seems to reflect an aggressive approach to vista identification.

Once an integral vista has been identified by the federal land manager, the state must list that vista in its state implementation plan (SIP).⁴³ However, the EPA regulations provide that the state need not list vistas if the land manager did not apply the regulatory criteria correctly or did not follow proper procedures, including "reasonable notice and opportunity for public comment on the proposed criteria."

In revising their SIPs to implement the new visibility program, states are required to list all integral vistas identified at least six months prior to submission to EPA of the revised plan.⁴⁴ Vistas not identified in time to give six-months notice need not be incorporated into the state plan until it is reviewed again three years following submission.⁴⁵

In theory the revised SIPs are to be submitted to EPA within nine months of the promulgation of the final visibility regulations.⁴⁶ Hence, the land managers would have had to complete identification of integral vistas before March 2, 1981, assuming that the states are on [11 ELR 10056] schedule, in order to avoid a three-year delay in integral vista protection. The protection of integral vistas will therefore be delayed by at least a period commensurate with the tardiness of the necessary SIP revisions and perhaps by that period plus three years.

For this reason, the Carter Administration, which did little else to accelerate the visibility protection program, sought to move the integral vista identification process quickly near the end of its term. The Reagan Administration now may well be reassessing the basis for protection of integral vistas rather than seeking to complete the process of identification begun by the Park Service and the Fish and Wildlife Service.⁴⁷

The BART Requirement

The 1977 Clean Air Act Amendments provide that sources "which may reasonably be anticipated to cause or contribute to any impairment of visibility" in protected areas may be required to install the "best available retrofit technology" (BART).⁴⁸ The prospect of a sweeping retrofit program mandating installation of expensive control devices, such as flue gas desulfurization scrubbers, has been a source of great concern to utility and industrial interests.⁴⁹ However, under EPA's final visibility regulations, retrofitting is expected to be required only rarely, at least in the near future.⁵⁰ This is due mainly to the limited scope of the phase I program, the statutory limits on source eligibility, and the cost-benefit nature of the BART requirement.

Sources subject to the retrofit requirement are those (1) emitting 250 tons or more of air pollution per year, (2) not in operation prior to August 7, 1962 (i.e., more than 15 years old when the 1977 amendments were enacted), and (3) to which visibility impairment in a protected area is attributable.⁵¹ Sources meeting these criteria can nevertheless be exempted by the EPA Administrator upon a finding that the source does not contribute to "significant impairment" of visibility.⁵² However, both the state and the federal land manager must concur with the exemption.⁵³

For each source meeting the criteria discussed above the state is required to perform an analysis to determine the best available retrofit technology. In conducting the BART analysis the state is directed to consider on a case-by-case basis

… the costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.⁵⁴

EPA has developed guidelines to assist with this analysis.⁵⁵ If the state finds that no control technology sufficiently effective to yield a perceptible improvement in visibility yet exists, it need not continue with the analysis.⁵⁶ If, however, a new more effective control technology becomes "reasonably available," the BART analysis must at that time be conducted in full.⁵⁷

Any retrofitting which is required by this program is likely to involve suspended particulate emissions, which can play an important role in plume blight problems, rather than emissions of sulfur dioxide (SO₂) or nitrogen dioxide (NO₂). SO₂ emissions are more responsible for the regional haze problem to be addressed in phase II than for plume blight. While NO₂ emissions do contribute to plume blight in many areas, EPA suggests in its regulations that the emissions reductions possible through available NO₂ control technologies are not sufficient to yield a perceptible improvement in visibility.⁵⁸

It is, however, within the authority of the states to impose retrofit requirements beyond those sanctioned in the [11 ELR 10057] BART program as part of their overall efforts to assure "reasonable progress" toward the visibility objectives.⁵⁹ Such requirements need not be constrained by the limitations on source size and age outlined above. Nor would they necessarily be limited to those pollutants directly implicated in plume blight problems.

Review of New Source Impacts

In its 1979 visibility report to Congress, EPA concluded that for many Class I areas, especially those in the West, the prevention of future visibility impairment as a result of population growth and the development of energy resources is a more pressing issue than the enhancement of existing conditions.⁶⁰ The review of proposed source visibility impacts is thus a key component of the program outlined in EPA's visibility regulations.

When EPA's final visibility regulations were issued, the prevention of significant deterioration regulations already required that visibility impacts be assessed in preconstruction review and that permits be denied for sources that would have an "adverse impact" on visibility in a Class I federal area.⁶¹ The Agency now explains that the term "adverse impact," which was not previously defined, refers to "visibility impairment which interferes with the management, protection, preservation, or enjoyment of the visitor's visual experience."⁶² With the addition of this interpretation, the PSD visibility review was focused on the same considerations which drive the § 169A program.⁶³ However, PSD review does not allow for consideration of the impairment of visibility in integral vistas.

The regulations also establish ground rules for the participation of federal land managers in the PSD visibility review process.⁶⁴ The state is to notify the federal land manager upon learning, through either formal or informal channels, of a present or pending PSD permit application.⁶⁵ The land manager is given the opportunity to demonstrate to the state that the proposed source will have an adverse impact on visibility in a Class I area, even though the air quality increment may not be exceeded.⁶⁶ The preamble to the regulations suggests that a state should seek EPA mediation if it does not agree with the conclusions of the land manager.⁶⁷ However, the regulations themselves indicate that the state's view is controlling.⁶⁸

Under the § 169A program, a visibility impact review must also be conducted for proposed new sources in nonattainment areas potentially impairing visibility in a neighboring Class I federal area.⁶⁹ Similarly, proposed new sources potentially impairing visibility in integral vistas, whether they are to be located in a PSD area or a non-attainment area, are subject to a visibility impact review.⁷⁰ In these revisions, § 169A allows the states far greater flexibility than the PSD review since they may consider costs, energy impacts,and the useful life of the source.⁷¹ EPA directs only that in this review the states "ensure that the source's emissions will be consistent with reasonable progress toward the national visibility goal…."⁷²

Development of a Long-Term Strategy

The retrofit program and the new source review efforts are intended to be only part of the effort to protect visibility in Class I areas. Many important sources of visibility impairment, such as agricultural burning, fugitive dust, and motor vehicle pollution, are not covered by these requirements.⁷³

Recognizing that a more comprehensive approach to the problem is needed, Congress in the 1977 amendments required states to develop long-term plans to respond to future visibility problems. Under § 169A, states with Class I federal areas must develop a 10- to 15-year strategy for making "reasonable progress" toward the goals of the Act.⁷⁴ While the states are granted wide discretion as to how to pursue long-range visibility goals,⁷⁵ they are nevertheless required to make the long-term strategy the centerpiece of their visibility protection efforts.⁷⁶ The strategy must be reviewed periodically, and a report submitted to the EPA Administrator on the effectiveness of the approaches in use and the possible need for additional steps.⁷⁷

In its 1979 report to Congress, EPA concluded that, in order to be effective, long-term strategies must consider the impact of new population growth, residential development, and increased agricultural activity.⁷⁸ The report encouraged states to attempt to integrate these sources into their air quality planning and to consider as well tighter controls for utilities and industrial sources.⁷⁹ More stringent emission limits, retrofit requirements, stricter new source reviews, and economics-based emission reduction requirements are mentioned as possible approaches.⁸⁰

[11 ELR 10058]

Outlook

In the visibility provisions of the Clean Air Act, Congres presented EPA with a mandate to deal promptly with a complex, incompletely understood problem that could be extremely expensive to redress. The Agency made its task more manageable through adoption of a phased approach that focuses initially on the relatively straightforward plume blight problem and defers action to reduce regional haze. While EPA cited the need for further evaluation of air quality monitoring and modeling techniques as the basis for this decision, there are also convincing practical and economic rationales. These rationales are attributable mainly to the likelihood that any effort to reduce regional haze would require the application of expensive existing source control requirements for sulfur dioxide and nitrogen dioxide.

As it stands today, EPA's visibility program is, on the whole, far less ambitious than one might have expected given the breadth of the congressional mandate. Existing sources are largely unaffected by the retrofit requirements with the exception of a few that are clearly responsible for particulate-related plume blight problems. New sources in PSD areas will continue to have visibility impacts assessed in the PSD review process. Proposed new sources in non-attainment areas potentially impairing visibility in a Class I federal area will now also have to undergo a review of visibility impacts prior to construction, as will proposed sources potentially impairing visibility in an integral vista. However, these reviews will be conducted pursuant to the states' perceptions as to what constitutes "reasonable progress" toward visibility goals, an approach which will allow the states wide discretion to consider costs and other factors. Nevertheless, states choosing to do so can use the "reasonable progress" directive to implement ambitious visibility protection programs.

In the longer term, if the current program is carried out as envisioned by EPA, some impact on growth may be expected, especially with regard to oil shale development and power plant construction near national parks. Even if such projects are not barred in the new source review process, the specter of possible future retrofit requirements might well deter siting near Class I federal areas. Also, if the technology for controlling nitrogen dioxide emissions improves sufficiently to permit retrofitting to yield a perceptible improvement in visibility, many existing sources will be reexamined with possible retrofit requirements in mind.

At this juncture, the eventual establishment of a phase II program to address the regional haze problem appears doubtful. The new administration is not likely to attach a high priority to such a potentially expensive program, especially given the speculative nature of the benefits and the administration's clear reluctance to embark on new regulatory efforts. Also, the Office of Management and Budget has already projected cuts for visibility research which will retard the development of the technical expertise necessary to support a control program for regional haze.

The change in administrations could also signal the end to integral vista protection efforts.Already a limited effort left largely to the prerogative of the states, the integral vista program cannot go forward without the identification of vistas to be protected. The Interior Department does not appear to be moving forward in the identification process and is now apparently reevaluating the need for the program.

In addition, a shift in the perspective of the Department of the Interior could yield subtle but important changes in the state programs. The EPA regulations reflect a presumption that federal land managers would play an important role in working with the states and prompting them to develop strategies for protecting visibility in Class I federal areas. If the land managers do not actively pursue this objective, less aggressive state programs can be expected to result.

Less clear is how, if at all, the visibility program will be affected by the upcoming Clean Air Act reauthorization debate. Industry advocates have targeted visibility protection as one of the programs which they feel should be eliminated or greatly reduced in scale. Their objections focus on the costs of the program, the uncertainty which the potentially sweeping retroit provisions create, the value of the benefits, and the possible impediments to growth and energy development in the West.⁸¹ However, the National Commission on Air Quality, which recommended major changes in several other Clean Air Act programs in its recent report to Congress, supports continuation of the visibility program in its present form.⁸² Environmental groups support a continuation of present efforts and eventual adoption of a phase II program.⁸³

In the absence of a phase II program, the regional haze problem is expected to worsen over the next 20 years, especially in the East.⁸⁴ However, improvement may occur after about the year 2000, assuming continued implementation of stringent new source performance standards, as older sources are replaced by better controlled new sources. Also, any effort to deal with the acid rain problem, which is also caused by the transport and transformation of sulfur and nitrogen oxides in the atmosphere, will have corresponding beneficial effects on visibility.

1. Clean Air Act § 169A, 42 U.S.C. § 7491, ELR STAT. & REG. 42237.

2. See, e.g., NATIONAL ENVIRONMENTAL DEVELOPMENT ASSOCIATION, CLEAN AIR PROJECT, CLEAN AIR AND INDUSTRIAL GROWTH 15-17 (1980); Air/Water Pollution Report, Jan. 28, 1980, p.22; National Coal Association, "Proposals for Revising the Clean Air Act and Regulations," Dec. 8, 1980.

3. The Agency was sued over its failure to meet the August 7, 1979 statutory deadline for the final regulations.Friends of the Earth v. EPA, No. 79-3411 (D.C. Cir., complaint filed Nov. 5, 1979).

4. See, e.g., Protecting Visibility, An EPA Report to Congress (1979) Chapter 4 (EPA-450/5-79-008) [hereinafter cited as Protecting Visibility]. See also authorities cited in note 7, infra.

5. Visibility at nonurban sites in the Southwest range from 65 to 80 miles, versus 9 to 14 miles for such sites in the East. Id.

6. In the Rio Grande Valley visibility dropped from 200 miles in 1960 to 30 miles in 1968. Under certain weather conditions, power plant emissions can reduce visibility in the Grand Canyon to 15 miles, obscuring the view of the opposite rim. Id.

7. Id. For additional discussions of air pollution and visibility impairment, see Air Pollution and Visibility: Selected Papers from an Air Pollution Control Association Specialty Meeting, 30 J. AIR POLLUTION CONTROL ASS'N 117 (Feb. 1980); Preserving our Visibility Heritage, 13 ENVT'L SCI. & TECH. 226 (Mar. 1979); Visibility Clarified, 15 ENVT'L SCI. & TECH. 135 (Feb. 1981). Tunderman, Protecting Visibility: The Key to Prevention of Significant Air Quality Deterioration, 11 NAT. RESOURCES LAW. 374 (1978).

8. See Protecting Visibility, supra note 4.

9. Id.

10. This program was implicitly authorized by the stated purpose of the 1970 Clean Air Act "to protect and enhance the quality of the nation's air resources," Clean Air Act § 101(b)(1), 42 U.S.C. § 7401(b)(1), ELR STAT. & REG. 42205. EPA adopted the program only after being forced to do so through litigation. Sierra Club v. Ruckelshaus, 334 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972), aff'd per curiam, 2 ELR 20656 (D.C. Cir. 1972), aff'd by an equally divided court sub nom. Fri v. Sierra Club, 412 U.S. 541, 3 ELR 20684 (1973). EPA's regulations, 39 Fed. Reg. 42509 (1974), were upheld against a number of legal challenges. Sierra Club v. EPA, 540 F.2d 1114, 6 ELR 20669 (D.C. Cir. 1976), cert. denied, 430 U.S. 959 (1977).

11. 42 U.S.C. § 7491(a), ELR STAT. & REG. 42237.

12. Id. Mandatory Class I areas are defined by § 162, 42 U.S.C. § 7472, ELR STAT. & REG. 42233.

13. Id.

14. Clean Air Act § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A), ELR STAT. & REG. 42237.

15. Id. § 169A(b)(2), 42 U.S.C. § 7491(b)(2), ELR STAT. & REG. 42237.

16. Id. § 169A(b)(2)(B), 42 U.S.C. § 7491(b)(2)(B), ELR STAT. & REG. 42237.

17. Id. § 165(d)(2)(C)(ii), 42 U.S.C. § 7475(d)(2)(C)(ii), ELR STAT. & REG. 42235.

18. Id. § 169A(a), 42 U.S.C. § 7491(a), ELR STAT. & REG. 42237.

19. This determination is to be based on the recommendations of the Interior Department. Id. § 169A(a)(2), 42 U.S.C. § 7491(a)(2), ELR STAT. & REG. 42237.

20. Id. § 169A(a)(3), 42 U.S.C. § 7491(a)(3), ELR STAT. & REG. 42237.

21. Id. § 169A(a)(4), 42 U.S.C. § 7491(a)(4), ELR STAT. & REG. 42237. The regulations are also to contain guidelines to assist states in the development of visibility programs. For large existing power plants (those with a capacity larger than 750 megawatts), EPA is to establish binding guidelines for the establishment of emission limitations.

22. 44 Fed. Reg. 69122 (Nov. 30, 1979).

23. Protecting Visibility, supra note 4.

24. Friends of the Earth v. EPA, No. 79-3411 (D.C. Cir., complaint filed Nov. 5, 1979).

25. 45 Fed. Reg. 80084 (Dec. 2, 1980).

26. The program focuses on problems that can be attributed, through "simple monitoring techniques such as visual observation," to single sources or small groups of sources. 45 Fed. Reg. at 80085.

27. Section 169A(g) provides that

(1) in determining reasonable progress there shall be taken into consideration the costs of compliance, the time necessary for compliance, and the energy and nonair quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements;

(2) in determining best available retrofit technology the State … shall take into consideration the costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology …

42 U.S.C. § 7491(g), ELR STAT. & REG. 42237.

28. See Clean Air Act § 165, 42 U.S.C. § 7475, ELR STAT. & REG. 42234. EPA's PSD regulations require that a proposed major stationary source evaluate its impact on visibility. If it is found that the source would cause an adverse impact on visibility in a federal Class I area, then the state must deny the permit. 40 C.F.R. §§ 51.18 & 51.24, ELR STAT. & REG. 46637.

29. Most of the affected federal land managers are officials of the Interior Department's Fish and Wildlife Service and National Park Service, and officials of the Agriculture Department's Forest Service.

30. 45 Fed. Reg. at 80091 (to be codified at 40 C.F.R. § 51.302).

31. Id.

32. Id.; 45 Fed. Reg. at 80093 (to be codified at 40 C.F.R. § 51.302).

33. The EPA regulations define "integral vista" as

a view perceived from within the mandatory Class I Federal area of a specific landmark or panorama located outside the boundary of the mandatory Class I Federal area.

45 Fed. Reg. at 80084, 80090 (to be codified at 40 C.F.R. § 51.301(n)).

34. 45 Fed. Reg. 8755 (Jan. 27, 1981) (proposed Fish and Wildlife Service criteria); 45 Fed. Reg. 3646 (Jan. 15, 1981) (proposed National Park Service criteria).

35. 45 Fed. Reg. 34769 (May 22, 1980) (proposed to be codified at 40 C.F.R. § 51.304).

36. 45 Fed. Reg. 34768 (May 22, 1980) (proposed to be codified at 40 C.F.R. § 51.302).

37. See note 27, supra.

38. 45 Fed. Reg. at 80092, 80093.

39. 45 Fed. Reg. at 80092 (to be codified at 40 C.F.R. § 51.304).

40. See 45 Fed. Reg. 8755 (Jan. 27, 1981) (proposed Fish and Wildlife Service criteria); 45 Fed. Reg. 3646 (Jan. 15, 1981) (proposed National Park Service criteria).

41. 45 Fed. Reg. at 3651 (National Park Service); 45 Fed. Reg. at 8758 (Fish and Wildlife Service).

42. 45 Fed. Reg. at 3652-57 (Jan. 15, 1981).

43. Id. The state is responsible for making this finding. But the regulations instruct the state to "carefully consider the expertise of the Federal Land Manager" in making these judgments. If the state and the federal land manager disagree, the state is directed to give the land manager an opportunity to "consult" with the governor.

44. 45 Fed. Reg. 80092 (to be codified at 40 C.F.R. § 51.304).

45. Id.

46. 45 Fed. Reg. 80091 (to be codified at 40 C.F.R. § 51.302(a)(1)).

47. Personal communication with an official of the Interior Department's Solicitor's Office. March 16, 1981.

48. Section 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A), ELR STAT. & REG. 42237.

49. See reports cited in note 2, supra.

50. In its final regulations EPA states that "Preliminary analyses have identified no existing sources which will need to install additional controls under these regulations." 45 Fed. Reg. at 80084.

51. Section 169A(b)(2)(A) requires states to include in their SIPs

a requirement that each major stationary source which is in existence on the date of enactment of this section, but which has not been in operation for more than fifteen years as of such date, and which, as determined by the State … emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any such area, shall procure, install, and operate, as expeditiously as practicable (and maintain thereafter) the best available retrofit technology, as determined by the State … for controlling emissions from such source for the purpose of eliminating or reducing any such impairment….

42 U.S.C. § 7491(b)(2)(A), ELR STAT. & REG. 42237.

52. EPA's final regulations explain that "significant impairment" refers to

visibility impairment which, in the judgment of the Administrator, inteferes with the management, protection, preservation, or enjoyment of the visitor's visual experience of the mandatory Class I Federal area. This determination must be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency and time of the visibility impairment, and how these factors correlate with (1) times of visitor use of the mandatory Class I Federal area, and (2) the frequency and timing of natural conditions that reduce visibility.

45 Fed. Reg. at 80091 (to be codified at 40 C.F.R. § 51.302(v)).

53. The regulations require the application for exemption to include "a written concurrence from the state with regulatory authority over the source." 45 Fed. Reg. 80092 (to be codified at 40 C.F.R. § 51.303(c)). The statute declares that an otherwise valid exemption granted by EPA "shall be effective only upon concurrence by the appropriate Federal land manager." Section 169A(c)(3), 42 U.S.C. § 7491(c)(3), ELR STAT. & REG. 42237.

54. Section 169A(g)(2), 42 U.S.C. § 7491(g)(2), ELR STAT. & REG. 42237.

55. "Guidelines for Determining Best Available Retrofit Technology for Coal-Fired Power Plants and Other Existing Stationary Sources," (Mar. 1980) (EPA-450/3-80-009b). For power plants greater than 750 megawatts in capacity these guidelines are binding. Section 169A(b), 42 U.S.C. § 7491(b), ELR STAT. & REG. 42237.

56. 45 Fed. Reg. at 80087.

57. 45 Fed. Reg. at 80092 (to be codified at 40 C.F.R. § 51.302(c)(4)(v)).

58. 45 Fed. Reg. at 80087.

59. Section 169A(b)(2), 42 U.S.C. § 7491(b)(2), ELR STAT. & REG. 42237; 45 Fed. Reg. at 80092, 80093 (to be codified at 40 C.F.R. § 51.306).

60. Protecting Visibility, supra note 4, at 7-14.

61. Section 165(d)(2)(C)(ii), 42 U.S.C. § 7475(d)(2)(C)(ii), ELR STAT. & REG. 42235; 40 C.F.R. §§ 51.18, 51.24.

62. 45 Fed. Reg. at 80090 (to be codified at 40 C.F.R. § 51.301(a)).

63. The regulations define "significant impairment" of visibility for purposes of § 169A with respect to the same factors. 45 Fed. Reg. at 80091 (to be codified at 40 C.F.R. § 51.301(v)).

64. 45 Fed. Reg. at 80091 (to be codified at 40 C.F.R. § 51.302(b)).

65. 45 Fed. Reg. at 80093 (to be codified at 40 C.F.R. § 51.307).

66. Id.

67. 45 Fed. Reg. at 80088.

68. 45 Fed. Reg. at 80093 (to be codified at 40 C.F.R. § 51.307).

69. Id.

70. Id.

71. Id.

72. Id.

73. Protecting Visibility, supra note 4, ch. 6.

74. Section 169A(b)(2)(B), 42 U.S.C. § 7491(b)(2)(B), ELR STAT. & REG. 42237.

75. "Reasonable progress" is defined to allow consideration of costs and other non-air quality factors. Section 169A(g)(1), 42 U.S.C. § 7491(g)(1), ELR STAT. & REG. 42237.

76. 45 Fed. Reg. at 80092 (to be codified at 40 C.F.R. § 51.306).

77. Id.

78. Protecting Visibility, supra note 4, at 7-31.

79. Protecting Visibility, supra note 4, ch. 7.

80. Id.

81. See note 2, supra.

82. To Breathe Clean Air, Report of the National Commission on Air Quality (1981).

83. See Comment, The Great Clean Air Act Debate of 1981: Environmentalists, Industry, Air Quality Commission Take Positions, 11 ELR 10027 (Jan. 1981).

84. Protecting Visibility, supra note 4.