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31 ELR 10957 | Environmental Law Reporter | copyright © 2001 | All rights reserved Through the Looking Glass: Regional Haze and Visibility Considerations for IndustryRolf R. von Oppenfeld and Eric L. HiserRolf R. von Oppenfeld is the managing partner of the Team for Environmental, Science, and Technology Law (TESTLaw) Practice Group within the law firm of von Oppenfeld, Hiser & Freeze, P.C., with regional offices located in Phoenix, Arizona, and Columbia, South Carolina. He holds a B.A. from Lawrence University, a B.S. from American University, and obtained his J.D. from George Washington University. Eric L. Hiser is a partner with the TESTLaw Practice Group focusing on regulatory compliance. He holds an A.B. from Wabash College and received his A.M. and J.D. degrees from Duke University. The authors would like to acknowledge the efforts of two law clerks, Dan Kravets and Randy Lowell, who assisted in preparing an earlier version of this Dialogue. Regional haze and visibility impairment results from particles and gases in the atmosphere scattering and absorbing light.1 The primary pollutants that affect visibility throughout much of the United States are sulfates and nitrates.2 This Dialogue addresses the statutory commands, regulatory programs, and other forces that are likely to drive future regulation of industry in this evolving, highly complex area. In looking at the regulatory requirements and the goals of the visibility and regional haze program, it is important to remember that the effect of the same amount of pollution on visibility will differ geographically, depending on the sensitivity and pollution levels in those respective areas.3 A contribution of x-amount of pollutants in a clean area will have a much greater impact than the same amount in a dirtier area.4 The regional haze problem is truly regional, with atmospheric conditions and other factors separating the eastern and western United States. For example, on average, the trend between 1988 and 1997 was that the worst day in the West was only slightly worse than the best day in the East.5 During that same time period, the West realized "steady visibility improvement," with total light extinction decreasing between 11% and 14%.6 Additionally, it is important to note that while sulfate is responsible for almost two-thirds of the visibility problems in the East, the contributors in the West are more varied.7 Sulfate accounts for about one-third of visibility impairment in the West, while organic carbon, crustal materials, and nitrates play a much more significant role in western regional haze than in the East.8 The Congressional and Regulatory Response to the Challenge of Visibility and Regional Haze In the 1977 Clean Air Act (CAA) Amendments, Congress declared as a national goal the "prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from man-made air pollution."9 These "mandatory class I Federal areas" are the international parks, national wilderness areas over 5,000 acres, national memorial parks over 5,000 acres, and national parks over 6,000 acres that were in existence on August 7, 1977.10 These are permanently designated as Class I areas.11 A federal land manager (FLM) is charged with responsibility for each Class I area.12 Of the 158 mandatory Class I areas, the FLMs in 156 of them identified visibility as an "important value" under CAA § 169A.13 These 156 Class I areas are located in 35 states and the U.S. Virgin Islands. It is the concern about deteriorating visibility in these 156 special areas that primarily drives visibility and regional haze issues in the United States. The 1977 Amendments and Phase I Visibility Rule In addition to establishing the national visibility goal and designating the mandatory Class I federal areas discussed [31 ELR 10958] above, the 1977 CAA Amendments directed the U.S. Environmental Protection Agency (EPA) to complete a study "on available methods for implementing the national goal" of improving visibility14 and to promulgate regulations to assure "reasonable progress toward meeting the national goal" and "compliance with the requirements" of the CAA.15 The regulations were to provide guidelines to the states on techniques for achieving improved visibility,16 directed the states to require major stationary sources built between August 8, 1962, and August 7, 1977, that "may reasonably be anticipated to cause or contribute to any impairment of visibility" in a mandatory Class I federal area to install, as expeditiously as possible, best available retrofit technology (BART),17 and directed the states to establish a long-term (10- to 15-year) strategy for making reasonable progress toward the national goal.18 The states were required to consult with the FLMs,19 but EPA was expressly forbidden to require "buffer zones" around the mandatory Class I federal areas.20 EPA completed its statutorily mandated study "on available methods for implementing the national goal" of improving visibility in 1979.21 EPA decided to approach the visibility impairment problem in two phases—the first dealing with smoke, dust, plume blights, and stack haze from a single source or a small group of sources, and the second phase would address regionally homogeneous haze from a multitude of sources scattered over a large area.22 The regulations for "Phase I" of visibility were promulgated in 1980.23 EPA deferred addressing the more complex impairment problems, such as regional haze, until improvements in monitoring techniques provided more data on source-specific levels of visibility impairment, regional scale models become refined, and scientific knowledge about the relationships between emitted air pollutants and visibility impairment improved.24 The regulatory program designed to implement CAA § 169A directed 35 states with Class I areas and the U.S. Virgin Islands to: (1) revise their state implementation plans (SIPs) by September 2, 1981, to assure reasonable progress toward the national visibility goal; (2) determine which existing major stationary sources should install BART for controlling pollutants that may reasonably be anticipated to cause or contribute to any impairment of visibility; (3) develop and implement a long-term (10- to 15-year) strategy for making progress toward the national visibility goal; (4) adopt measures to assess potential visibility impacts due to new major stationary sources or major modifications, including notification of FLMs of proposed permit applications and to consider any visibility analysis performed by an FLM; and (5) conduct visibility monitoring or evaluation in mandatory Class I federal areas.25 The SIP revisions proved controversial. Thirty-five states failed to submit a revised SIP to EPA by the deadline. As a result, the Environmental Defense Fund and other environmental groups filed a citizen suit against EPA to compel the Agency to promulgate federal implementation plans (FIPs), as required by the CAA.26 The parties agreed to settle the case, and the court entered a consent decree that required EPA to review existing SIPs for deficiencies in visibility protection and to allow states to cure any deficiencies identified. If the states did not cure the deficiencies, EPA was required to issue FIPs. In November 1987, EPA disapproved the SIPs of 29 states for failing to comply with the control strategies, integral vistas, and long-term strategies portions of the visibility regulations, and implemented FIPs for the states to cure these deficiencies. Congress, concerned by the lack of progress in achieving the national visibility goal and recognizing the increasing role played by regional haze in visibility deterioration throughout the United States, amended the CAA by adding § 169B, which brought regional haze concerns under the purview of EPA and linked visibility and regional haze together.27 CAA§ 169B mandated the creation of the Grand Canyon Visibility Transport Commission (GCVTC),28 which was composed of eight western state governors, four Indian tribes, four FLMs, the Columbia River Inter-Tribal Fish Commission, and EPA, and authorized the creation of visibility transport regions and commissions.29 Congress concluded by directing EPA, based upon additional studies it was conducting and the report of the GCVTC (and any other visibility commission), to "carry out the Administrator's regulatory responsibilities under [CAA § 169A]."30 In June 1996, the GCVTC issued recommendations on improving visibility on the Colorado Plateau. The CAA instructs EPA to act on those recommendations within 18 months.31 EPA proposed its "Phase II" regulations dealing specifically with regional haze on July 31, 1997.32 The final regional haze rule (RHR) was then published on July 1, 1999.33 While the Phase I visibility rule covered 35 states and the U.S. Virgin Islands, the RHR expands that coverage to include [31 ELR 10959] all states, having determined that "all States contain sources whose emissions are reasonably anticipated to contribute to regional haze in a Class I area…."34 Significantly, the RHR established a requirement that: State[s] must compare baseline visibility conditions to natural visibility conditions in the mandatory Federal Class I area[s] and determine the uniform rate of visibility improvement (measured in deciviews) that would need to be maintained during each implementation period in order to attain natural visibility conditions by 2064.35 In effect, EPA established a national goal of restoring natural visibility conditions by 2064,36 although states retain the ability to set a different rate of progress if certain conditions are met.37 The core requirements for an implementation plan under the RHR are found at 40 C.F.R. § 51.308(d). These include the establishment of reasonable progress goals, calculations of baseline and natural visibility conditions, a long-term strategy for addressing regional haze, a monitoring strategy, implementation of BART or a BART alternative, a requirement to undertake a comprehensive revision to the SIP once every 10 years, and requirements for enhanced state/FLM cooperation. The RHR also provided for an alternative approach by GCVTC states in 40 C.F.R. § 51.309. These states were given the option of implementing an approvable annex to the GCVTC report. Establishing "Reasonable Progress" Goals to Achieve the National Visibility Goal Considering that the RHR establishes the goal of reaching natural visibility conditions from current conditions by using baseline conditions, a review of this terminology and its application in the RHR is useful in understanding the operation of the rule: Summary of RHR Terminology38
Hence, "current conditions" reflect observed conditions at any time; "baseline conditions" reflect the conditions in 2000-2004 used to determine progress toward "natural conditions" that are to be achieved by 2064, unless an alternate target is established. The proposed rule had proposed to require states to demonstrate a 1.0 deciview improvement every 10 to 15 years in the 20% most-impaired days, with no deterioration in the quality of the 20% least-impaired days. Environmentalists complained bitterly that this rate of progress would not achieve natural conditions for approximately 200 years in the East and that this rate of progress was not reasonable.39 Similarly, sources in the West complained that the proposal would be overly ambitious for some areas with little existing visibility impairment in the West.40 As a result, EPA substituted a new approach whereby both the East and West would attempt to achieve natural background conditions in approximately 60 years for the 20% "worst" days and maintain the quality of the 20% "best" days.41 Thus, in determining reasonable progress goals, there are several steps. First, the state or regional planning authority compares the baselines in the years 2000-2004 to natural backgrounds and determines the amount of progress required to meet natural conditions by 2064.42 From this determination, a uniform rate of progress needed to meet the natural background amount is calculated over the 60-year period. Then, based on that uniform rate of progress, an interim number is calculated based on the period of the first regional haze implementation plan. If, for example, an 18 deciview improvement was needed over 60 years, then that would mean a 0.3 rate of deciview/year uniform rate of progress. If the first implementation plan was for a 10-year period, then the interim period progress number would be 3 deciviews. Following these calculations, the state must "identify and analyze the emissions measures that would be needed to achieve this amount of progress … and determine whether those measures are reasonable based on the statutory factors."43 A state may choose to adopt a goal that is more aggressive than the calculated figure. Alternatively, if a state determines that the uniform rate of progress is not achievable, then it must provide the supporting analysis and a demonstration of an alternative reasonable rate of progress.44 It is important to note that this reasonable rate of progress is a goal and is not an enforceable standard—-only the control measures initiated within the state itself are enforceable.45 The switch to the 60-year planning horizon for setting the reasonable progress goals has a number of significant implications. First, because visibility in the East is generally worse than the West, eastern states will need to impose more stringent control measures to achieve the national visibility target than western states. This can be seen by comparing the average visibility conditions in both regions:
The Long-Term Strategy for Achieving Reductions in Visibility Impairment After the state develops its reasonable progress targets, it must develop a "long-term strategy" including "enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals established by States having mandatory Class I Federal areas."46 In developing the long-term strategy, the state must consider seven factors: [31 ELR 10961] . Measures to mitigate the impacts of construction activities. . Additional measures, limitations, and schedules for compliance to achieve the reasonable progress goal. . Source retirement and replacement schedules. . Smoke management techniques for agricultural and forestry management purposes including plans as they currently exist within the state. . Enforceability of emissions limitations and control measures. . The anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the next 10 years.47 Some critical aspects of the long-term strategy include the requirements to address fire and multistate contribution to visibility impairment. It is likely that both the fire and multistate impairment provisions will be controversial in the long run. Already, tensions exist in the air pollution control community between the need for increased prescribed burns for forest health (which all parties generally recognize as legitimate) and the need for additional reductions in emissions loading to achieve visibility improvements. Stationary sources, such as utility plants, express concern that they will be asked to take additional reductions to allow for the expected increase in prescribed burning.48 While EPA generally tried to minimize this conflict (noting that fire emissions account for only 4% to 7% of mass on the worst days),49 forest health and fire control officers already feel the strain of working with state smoke management plans and policies. Thus, the management and accounting for fire is likely to remain an uneasy area of federal-state relations going into the future. Similarly, Class I areas affected by contributions from multiple states will likely be a touchstone for disagreement. In these situations, the RHR requires multistate consultation and apportionment in 40 C.F.R. § 51.308(d)(3). If a state's emissions are found to "cause or contribute to impairment in a mandatory Class I area," the state "must demonstrate that it has included in its implementation plan all measures necessary to obtain its share of the emissions needed to meet the progress goal for the area."50 In the RHR preamble, EPA encourages states to participate in regional planning efforts, but also notes that the regional planning effort cannot "dictate" the contents of the SIP.51 Moreover, the RHR rule does not address the situation where states disagree about the relative impact of their emissions. This omission is troubling, particularly in light of the breakdown in consensus that occurred in the Ozone Transport Assessment Group (OTAG) process when the states could not agree on reductions between themselves necessary to achieve ozone reduction goals. EPA's blithe assumption that regional planning will address this problem harmoniously may thus be overly optimistic, especially once the visibility goals begin to demand more emissions reductions than mandated by other programs, such as the Title IV acid rain program. Monitoring is required to assess baseline and current conditions and to assist in determining BART issues.52 Compliance with the monitoring strategy may be accomplished through participation in the Interagency Monitoring of Protected Visual Environments (IMPROVE) network or through an equivalent monitoring program meeting the provisions of 40 C.F.R. § 51.308(d)(4)(i)-(vi). EPA is currently expanding the IMPROVE network to include over 110 Class I areas.53 If the IMPROVE network does not provide adequate information, then other monitoring steps are required. Note that the regulation does not require a monitor in each Class I area, but rather that a monitor "be representative of a Class I area."54 An important aspect of the RHR is changes to the definition and role of BART.55 BART is defined in the regulations as an "emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each pollutant which is emitted by an existing stationary facility."56 This limitation is made on a case-by-case basis, and takes into consideration available technology, compliance costs, energy and non-air quality environmental impacts of compliance, pollution control equipment in use at the source, and the degree of improvement in visibility that is expected to result from the technology.57 Under the 1977 CAA Amendments, BART is applicable to major stationary sources in 1 of 26 source categories that has a potential to emit 250 tons per year (tpy) or more and began operations between 1962 and 1977.58 [] Expansion of the BART Process. Under the RHR, a Class I area with impaired visibility requires states to identify each "BART-eligible" source and perform a BART analysis.59 This analysis requires the state to determine "BART for each BART-eligible source in the State that emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal Area."60 Significantly, the decision of whether the BART-eligible source contributes to the impairment is based upon an "analysis of the degree of visibility improvement that would be achieved … as a result of the [31 ELR 10962] emission reductions achievable from all sources subject to BART located within the region that contributes to visibility impairment in the Class I area …."61 Thus, unlike the 1980 regulations, which determined whether impairment was "reasonably attributable" to a given BART-eligible source, the RHR evaluates impairment on a collective basis. Where control techniques exist that would improve visibility, a study of alternative control strategies is required. After the study of alternatives, a specific emission limitation that reflects BART is to be established for the source, which is then required to install, operate, and maintain the control technology to meet the emission limitation. BART installation and operation should be accomplished as expeditiously as practicable, but in no case later than five years after plan approval.62 [] The Nature of BART. Source-specific emissions limits following BART: should identify the maximum level of emission reduction that has been achieved in other recent retrofits at existing sources in the source category…. Recent retrofits at existing sources provide a good indication of the current "best system" for controlling emissions. Thus, for example, recent retrofits for large utility sources (e.g., sources under the acid rain program and the NGS) have commonly achieved a 90% or better rate of sulfur dioxide emissions (at an average cost of $ 265 per ton of sulfur dioxide removed). For source categories with recently promulgated NSPS, that standard may also provide a good indication of the current "best system" for controlling emissions.63 The Navajo Generating Station (NGS) presents an example where the BART process has been applied to the utility sector. After a 10-year legal battle, an FIP was adopted that subjected the NGS not to BART standards, but to measures "that would produce greater visibility improvement at a lower cost."64 Specifically, the FIP revisions called for NGS to reduce sulfur dioxide (SO2) emissions by 90% to a level of 0.10 pounds per million British thermal units of heat input. Under the RHR, states must identify BART-eligible sources and then have the option of applying source-specific emissions limits under BART or an alternative measure, e.g., an emissions trading program, "so long as greater reasonable progress is made."65 In addition, EPA, with the concurrence of the appropriate FLM, is able to grant an exemption from BART if the source can establish that it does not cause or contribute to significant impairment of visibility.66 [] Implications for Industry. The implications of these industry changes are significant, at least for BART-eligible sources. First, the RHR applies to all 48 states and hence increases the universe of BART-eligible sources. Second, the RHR requires all BART-eligible sources to undergo BART review. Previously, BART technology review was only required if impairment in a Class I area was "reasonably attributable" to the source.67 Third, by redefining the impairment test to consider whether reductions from "all sources" potentially contributing to an area (applying BART-level technologies), many more BART-eligible sources constructed between 1962 and 1977 now face the possibility of the imposition of BART or the development of BART alternatives. These changes may affect sources that are not BART-eligible. The RHR provides that states may adopt alternative programs in lieu of BART provided that the alternative program achieves greater reasonable progress than BART would. BART-eligible sources have a significant incentive to encourage the development of alternative programs that would shift some of the cost and burden of compliance to other facilities. Regional Trading in Lieu of BART A regional emissions program has been identified by the EPA as the most likely alternative to the imposition of source-specific BART requirements. An emissions trading program would allow sources flexibility in determining whether on-site emission reduction strategies or trading was more appropriate and ensure a lower cost-per-ton reduction than a mandatory technology program.68 Trading programs that may serve in lieu of BART must meet five criteria. First, every source in the region subject to BART must be included (except sources already applying BART), and sources not subject to BART may be included. Second, the trading program must be fully implemented during the first long-term strategy period, which is typically beyond the five years required for BART implementation. Third, sources must monitor emissions and the reductions must be surplus to other federal requirements as of the baseline date. Fourth, states should consider emission reduction requirements of other air quality programs and a "geographic enhancement" component to allow for "hot spots" to be adequately dealt with. Finally, "interpollutant trading should not be allowed until the technical difficulties associated with ensuring equivalence in the overall environmental effect are resolved."69 Other Developments Affecting Regional Haze and Visibility In addition to the RHR itself, there are a number of other programs that address visibility and regional haze issues. As part of its overall strategy to address regional haze, EPA has proposed administrative changes to improve consultation and review procedures to facilitate consideration of visibility and regional haze. Preconstruction Review: Prevention of Significant Deterioration (PSD) and New Source Review (NSR) Developments The construction of a new major stationary source or the major modification of a major stationary source triggers the CAA's preconstruction review requirements, including the visibility and regional haze elements. [] PSD Review. A major stationary source or major modification of a major stationary source in an attainment or unclassifiable area is potentially subject to two levels of visibility review: a general visibility screening and a review specific to mandatory Class I federal areas. The owner or operator of any source subject to PSD review is required to provide "an analysis of the impairment to visibility … that would occur as a result of the source or modification" and its associated growth.70 This review typically consists of a simple plume screening following EPA's Workbook for Plume Visual Impact Screening and Analysis.71 So long as the review does not show any major impacts to a mandatory Class I federal air area, an integral vista, or another visually sensitive actor (like an airport), this aspect of visibility review is usually minimal. 2. Class I Federal Area Review If the proposed source or modification potentially could affect a mandatory Class I federal air area, including any integral vista72 identified for such area, then the state is required to develop an analysis of the anticipated effects on visibility and provide written notification to all FLMs of Class I areas that may be affected.73 The FLMs have an affirmative duty under the CAA to protect air quality, especially visibility, at Class I lands.74 The FLM must be consulted in the NSR application process when a new or modified source may adversely affect visibility or other air quality-related values (AQRVs) in the Class I area.75 For these Class I areas, increments have been established that limit the amount of additional pollutants from major sources above a baseline amount (the baselines for PSD are different than the visibility baselines discussed above). The increments allowed for particulate matter (PM) and SO2 are set forth in CAA § 163(b) and in 40 C.F.R. § 51.166(c), and for nitrogen dioxides the increment is found at 40 C.F.R. §§ 50.11 and 51.166(c).
[] Nonattainment Area Major NSR. For major stationary sources or major modifications of major stationary sources located in a nonattainment area, the visibility review follows the basic procedure outlined above for the PSD Class I federal area review. There are some differences, however. The state must ensure that the proposed construction or modification is "consistent with making reasonable progress toward the national visibility goal," but may take into consideration "the costs of compliance, the time necessary for compliance, the energy and nonair quality environmental impacts of compliance, and the useful life of the source."79 Thus, a major stationary source for a non-attainment pollutant that does not also trigger the PSD program may have greater flexibility in addressing visibility concerns than a similar source in an attainment or unclassifiable area. Intersection With National Ambient Air Quality Standards (NAAQS) The RHR is complementary but separate from the PM and ozone NAAQS. An overlap exists because the air quality problems presented by regional haze and NAAQS share "common precursor pollutants, emission sources, atmospheric processes, spatial scales for transport, and geographic areas of concern."80 And while the SIPs are the vehicle for NAAQS compliance, SIPs are just one of several implementation tools available under the RHR. The 1999 decision by the D.C. Circuit in American Trucking Ass'n v. U.S. Environmental Protection Agency81 that struck down the newly promulgated NAAQS for PM and ozone has caused some concern over its effect on the RHR. However, according to EPA and the National Park Service (NPS), the effect is negligible. The emissions inventories for the criteria pollutants must still be developed and the guidance issued for that purpose82 is still viable, "irrespective of the final determination on the actual [NAAQS]," albeit the schedule may be changed.83 NAAQS and the Nitrogen Oxide (NOx) SIP Call The OTAG, consisting of representatives of 37 states, was formed as part of an effort to develop regional strategies to reduce ozone levels. Based in part on OTAG's findings, EPA issued a "NOx SIP Call" in September 1998, requiring 22 states and the District of Columbia to revise SIPs to require NOx emission reductions.84 However, in May 1999, the U.S. Court of Appeals for the D.C. Circuit issued a stay delaying the date of the SIP submissions pending a ruling on the merits of the SIP Call itself.85 In light of the American Trucking decision that struck down the 8-hour ozone standard, the D.C. Circuit granted EPA's request to stay consideration of the 8-hour standard, and limited its decision to the merits of the 1-hour ozone standard, upholding the inclusion of 19 states and the District of Columbia in the SIP Call.86 EPA subsequently stayed all findings in the SIP Call relating to the eight-hour ozone standard.87 On June 22, 2000, the D.C. Circuit lifted the stay of the NOx SIP Call in affirming the Michigan v. U.S. Environmental Protection Agency88 decision and gave states until October 30, 2000, to issue revised SIPs. CAA § 126 petitions allow a state to petition EPA to have the Agency require a different state to reduce emissions. While the OTAG was conducting its research for the SIP Call, eight states filed § 126 petitions stating that sources in other states were interfering with the petitioning state's air quality, specifically asking for reductions in NOx.89 Four more states have filed § 126 petitions since the initial eight states filed.90 Initially, these CAA § 126 petitions were seen as a backstop in the event that the SIP Call was not sufficient to bring the northeastern states into attainment for ozone. In light of the SIP Call stay, EPA has "delinked" the petitions and the SIP Call as originally proposed in a 1999 rule and both large electric-generating units (EGUs) and large non-EGUs listed in the petition must comply with the federal NOx Budget Trading Program and make appropriate reductions by May 2003.91 However, a state complying with the NOx SIP Call revisions can eliminate the need for § 126 petition compliance.92 Western Regional Air Partnership Recommendations The RHR provides that the GCVTC's recommendations may be implemented for the 16 Class I areas93 on the Colorado Plateau if an implementation plan wassubmitted by October 1, 2000.94 The Western Regional Air Partnership (WRAP) is the successor organization to the GCVTC responsible for submitting an annex to the initial 1996 report detailing the implementation plan. Under the RHR, states may elect to address regional haze using the tools in § 308 of the rule or through an implementation [31 ELR 10965] of the GCVTC recommendations via the annex (per the § 309 requirements of the RHR). The annex establishes milestones for emissions reductions. These are predicated by the 13% emissions reduction of SO2 that was to be achieved between 1990 and 2000. The 1990 emissions baseline was 830,000 tpy, which with the reduction would put year 2000 emissions at about 722,000 tpy. The 1998-1999 data indicate that, with two smelters not operating, the emissions were approximately 652,000 tpy.95 WRAP believes that the front-end flexibility, which translates into greater back-end reductions, is consistent with the definition of "reasonable progress."96 Compliance is measured by using a three-year rolling average, with the exception of the year 2018, when compliance will be based on actual emission during 2018.97 These milestones would result in a reduction of between 39% and 44% from the 1990 baseline by 2018. It is important to remember the larger picture—a long-term strategy of cutting emissions by between 50% and 75% from 1990 baseline levels by 2040. Regional Sulfur Dioxide Milestones for Stationary Sources Emitting More Than 100 TPY98
(1) The first 20,000 tons will be allocated to tribes. (2) A specific set-aside for each new source expecting toemit over 100 tpy. (3) An allowance of 3,462 tons for years 2003-2018 for participants in California's RECLAIM trading program. (4) Existing sources will receive a floor allocation based on best available control technology, BART, or lowest achievable emission rate, which will remain constant through 2018 unless further milestones will be violated. (5) Finally, any remaining tonnage below the milestone will be allocated as reducible tons which will decrease over the years.100 Sources should recognize that these allowances may not meet their operating needs. These sources will be forced to "either install emission controls, buy allowances from a source that was able to achieve reductions more cheaply, or retire."101 Permitting programs will be the enforcement mechanisms for applying the trading program, and where no permit is applicable, then the SIPs or FIPs will be the federally enforceable mechanism. On June 27, 2000, several NPS superintendents, most notably from Shenandoah and Great Smoky Mountains National Parks, submitted a letter to the U.S. Department of the Interior's (DOI's) FLM, the Assistant Secretary for Fish and Wildlife and Parks, requesting action to address the deterioration of air quality in those areas.102 The Assistant Secretary, on July 19, responded by submitting a request for rulemaking to EPA.103 Despite the acid rain program, RHR, NOx SIP Call, Tier II tailpipe standards, and the revised ozone and PM standards, the DOI stated, on behalf of national parks and wilderness areas, that it is still "not confident that the expected reductions will be enough…."104 As a result, the DOI has asked for a promulgation of a general rule that will require SIP revisions to "remedy existing, and prevent future, adverse AQRV impacts."105 On October 29, 1999, seven northeastern states106 petitioned EPA to commence a rulemaking to promulgate revised secondary, i.e., welfare-based, NAAQS. The states "suggest that the acid rain provisions in Title IV of the CAA do not go far enough to ensure full recovery of sensitive ecosystems [and] that damage is sufficiently serious and widespread to be considered national in scope."107 EPA is currently soliciting comments for a proposal addressing both the NPS and northeast states petitions.108 The RHR represents a mixed outcome for industry. The critical issues for industry were the definition and application of [31 ELR 10966] BART, whether or not the reasonable progress "goals" would be enforceable, the scope of mandatory interim measures potentially implemented by EPA, and the overall time frame for implementation. On all of these grounds, the industry was relatively successful in mitigating the worst elements of the proposed rule, but significant impacts remain. EPA's proposed rule would have radically transformed BART's application. Under the Phase I rules, BART-eligible sources were evaluated on a strictly individual basis. In the proposed rule, EPA had proposed to evaluate whether the BART-eligible sources, either individually or in the aggregate, could be said to contribute to reasonably attributable degradation in a mandatory Class I air area. Because the aggregate impacts would be reviewed, many, if not all, BART-eligible sources previously not serious candidates for BART controls would have become subject to potentially onerous restrictions. The RHR, as promulgated, fudges this issue by retaining a watered-down concept of reasonably attributable. There is little doubt that the RHR reinvigorates the BART concept and will force its application to a large number of sources that had previously regarded themselves as unlikely to be affected by retrofit requirements. In addition, industry and the states were generally successful in allowing alternative programs, such as a cap-and-trade program, to operate in lieu of BART requirements if the alternative program is at least as effective in achieving progress toward the visibility goal as the application of BART to the source would have been. States and industry have substantial leeway in demonstrating that a proposed alternative program would meet the "more effective" standard set forth in EPA's regulations. Another concern in the proposed rule was whether EPA would follow through with desires by many in the environmental community to make the reasonable progress goals established in the planning process federally enforceable. If this occurred, should a state fail to attain a reasonable progress goal, EPA could potentially proceed to promulgate an FIP to ensure attainment of the goal or a citizens group could have sued to force application of additional measures necessary to achieve the goal. Because of the uncertainty resulting from this process and its greater insulation from public participation and political control, adoption of enforceable goals backed by these processes would have greatly increased the risk to the industry of adverse regulatory or judicial decisionmaking. The promulgation of the final RHR without these provisions reduces the risk of substantial, unforeseen, judicially, or EPA-mandated changes in visibility and regional haze control programs. One of the potentially troublesome issues is whether EPA would mandate, as part of the basic RHR, specific measures that states would need to adopt immediately as part of their visibility SIPs. Potential measures considered by the GCVTC states had included additional protections for "clean air" corridors into mandatory Class I areas, additional restrictions on fire and controlled burns, and quick implementation of a cap-and-trade program. The final RHR essentially deferred these interim measures to the states to include in their visibility SIPs. Once again, the deference to the states and the relegation of most substantive measures to the SIP planning process offers a substantial opportunity to the industry to become involved in the selection of the final visibility control measures and to tailor the best measures for achieving the long-term visibility goal at the lowest marginal cost to electricity production in the United States. The long-term goal for visibility protection remains the "prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from man-made air pollution."109 This goal is established in the text of the CAA. The final RHR reflects this goal in establishing an approximately 60-year time frame for achieving the elimination of man-made visibility impairment. For industry, the selection of the 60-year time frame is useful because it allows for appropriate business planning and sufficiently long advance warning that certain older, inefficient plants may need to be phased out. In this regard, the final RHR's compliance schedule is an advancement over prior programs that mandated immediate measures without regard to the lower economic costs that could be achieved by managing the change over a longer period. The RHR substantially advances the regulatory framework for the control and reduction of regional haze. The rule is not without weaknesses, however. First, like the Phase I visibility rules, the RHR relies almost exclusively on the state SIP process. The states, however, generally lack significant ability to control mobile sources. Hence, most of the burden for achieving reductions will likely fall back to the stationary sources over which the states can exercise greater control. Second, with the arguable exception of 40 C.F.R. § 51.309, the RHR does not provide a substantial framework for the regional planning and implementation processes discussed in the preamble that EPA purportedly sought to encourage. The SIP development process is, by its nature, state oriented and not easily amenable to multistate application. Experience with the OTAG process suggests that even when states attempt to work together in good faith, the hard realities of trading "real" economic harm for long-term environmental gain will create vexing problems. The RHR does little to address these problems and, in its provisions regarding multi-contributor problems, may actually exacerbate these problems. Third, the BART provisions will undoubtedly create substantial tension. Much of industry had regarded BART as essentially a quiescent issue, barring the rare case of successful [31 ELR 10967] reasonable attribution. The RHR sweeps away most of the bars to reasonable attribution, increases the universe of BART-eligible sources, and mandates that a BART analysis or alternative be put in place. For BART-eligible sources, the RHR thus serves as a call for action to become intensively involved in the regional haze discussion. Even non-BART-eligible sources may be drawn into the fray, particularly if states and BART-eligible sources seek to develop alternative programs (cap and trade, alternative controls) that have the effect of shifting burdens to industry sectors other than the electric utilities, who will be primarily affected by BART review. In this regard, the RHR's failure to provide for fuller integration with mobile source and other controls is particularly disappointing. One of the challenges for industry will be to keep from fighting itself. The final RHR represents an important step forward in visibility control in the United States. Industry achieved several important goals in the adoption of the final rule, including a retention of the "reasonably attributable" requirement for BART, maintaining the "goals" only status of the interim visibility progress targets, and deferring most active controls to the state SIP process allowing better consideration of local planning issues and needs. Nevertheless, the final RHR clearly indicates that progress must be made toward achieving the CAA's goal of remedying existing visibility impairment. The challenge to industry is thus to develop an environmentally and economically sensible plan to meet this challenge while simultaneously addressing the nation's growing demand for electric power. 1. See U.S. ENVIRONMENTAL PROTECTION AGENCY, NATIONAL AIR QUALITY AND EMISSIONS TRENDS REPORT: 1997, at 87 (1998) [hereinafter 1997 AIR QUALITY REPORT]. 2. Nitrogen dioxide directly reduces visibility, while sulfur dioxide emissions result in a secondary pollutant in the atmosphere, sulfate, that reduces visibility. Other chemical reactions in the atmosphere resulting from the introduction of nitrogen oxides and sulfur oxides also contribute to secondary pollutants and haze problems. 3. 1997 AIR QUALITY REPORT, supra note 1, at 89-90. 4. "An increase of one microgram of particulate concentration in the atmosphere in an area that provides a two hundred mile view can result in a decrease in visibility of thirty percent." ARNOLD W. REITZE JR., AIR POLLUTION CONTROL LAW: COMPLIANCE AND ENFORCEMENT (forthcoming, Envtl. L. Inst. 2001). The same amount of pollution would have a negligible effect in an area with a 20-mile view. See GRAND CANYON VISIBILITY TRANSPORT COMM'N, RECOMMENDATIONS FOR IMPROVING WESTERN VISTAS 1 (1996). 5. 1997 AIR QUALITY REPORT, supra note 1, at 91. 6. Id. 7. Id. at 92. 8. Id. 9. 42 U.S.C. § 7491(a)(1), ELR STAT. CAA § 169A(a)(1). 10. Id. § 7472(a), ELR STAT. CAA § 162(a). 11. Id. 12. The FLM for the U.S. Department of the Interior Class I areas is the Assistant Secretary for Fish and Wildlife and Parks. 13. See 42 U.S.C. § 7491(a)(2), ELR STAT. CAA § 169A(a)(2). Two wilderness areas declared that visibility was not an issue. The list of the 156 mandatory Class I areas is found at 40 C.F.R. pt. 81, subpt. D. 14. 42 U.S.C. § 7491, ELR STAT. CAA § 169A. 15. Id. § 7491(a)(4), ELR STAT. CAA § 169A(a)(4). 16. Id. § 7491(b)(1), ELR STAT. CAA § 169A(b)(1). 17. Id. § 7491(b)(2)(A), ELR STAT. CAA § 169A(b)(2)(A). 18. Id. § 7491(b)(2)(B), ELR STAT. CAA § 169A(b)(2)(B). 19. Id. § 7491(d), ELR STAT. CAA § 169A(d). 20. Id. § 7491(e), ELR STAT. CAA § 169A(e). 21. Id. § 7491, ELR STAT. CAA § 169A. 22. Visibility Protection for Federal Class I Areas, 45 Fed. Reg. 80084, 80085 (Dec. 2, 1980). 23. Id. at 80084 (codified at 40 C.F.R. § 51.300-.307). 24. Id. at 80085-86. 25. 40 C.F.R. § 51.302. 26. See Environmental Defense Fund v. Reilly, No. C82-6850-RPA (N.D. Cal. Apr. 20, 1984); see also 42 U.S.C. § 7410(c)(1)(A), ELR STAT. CAA § 110(c)(1)(A) (requiring EPA, as a nondiscretionary duty, to promulgate FIPs where a state has not revised their SIP as required by the CAA). 27. 42 U.S.C. § 7492, ELR STAT. CAA § 169B. 28. Id. § 7492(f), ELR STAT. CAA § 169B(f). 29. Id. § 7492(c), ELR STAT. CAA § 169B(c). 30. Id. § 7492(e)(1), ELR STAT. CAA § 169B(e)(1). 31. Id. 32. Regional Haze Regulations; Proposed Rule, 62 Fed. Reg. 41138 (July 31, 1997). 33. Regional Haze Regulations; Final Rule, 64 Fed. Reg. 35714 (July 1, 1999). 34. Id. at 35721. 35. 40 C.F.R. § 51.308(d)(1)(i)(B). 36. 64 Fed. Reg. at 35731-32. 37. The procedure for states to demonstrate a slower rate of progress is set forth at 40 C.F.R. § 51.308(d)(1)(ii). 38. 64 Fed. Reg. at 35730. 39. Id. at 35731. 40. Id. 41. Id. at 35733. 42. Id. at 35732. "For example, if the baseline visibility is 30 deciviews, and the natural background is 12 deciviews, then this step would show the need for an 18 deciview improvement between 2004 and 2064." Id. 43. Id. 44. Id. 45. Id. at 35733. 46. 40 C.F.R. § 51.308(d)(3). 47. 64 Fed. Reg. at 35737; see 40 C.F.R. § 51.306. 48. 64 Fed. Reg. at 35736. 49. Id. 50. Id. at 35735; see 40 C.F.R. § 51.308(d)(3). 51. 64 Fed. Reg. at 35735. 52. 40 C.F.R. § 51.308(d)(4). This monitoring is to be coordinated with the monitoring strategy required under § 51.305 for reasonably attributable visibility impairment. 53. 64 Fed. Reg. at 35744. 54. Id. 55. 40 C.F.R. § 51.308(e). 56. Id. § 51.301. 57. Id. 58. 42 U.S.C. § 7491(b)(2)(A), (g)(7), ELR STAT. CAA § 169A(b)(2)(A), (g)(7); see 40 C.F.R. § 51.301(e); 64 Fed. Reg. at 35737. 59. 40 C.F.R. § 51.302(c)(4)(i). 60. Id. § 51.308(e)(1)(ii). 61. Id. § 51.308(e)(1)(ii)(B) (emphasis added). 62. Id. § 51.308(e)(1)(iv). 63. 64 Fed. Reg. at 35740. EPA has also initiated a proposal for promulgating new BART guidelines that EPA characterizes as a "clarification" of the RHR. 64. Central Ariz. Water Conservation Dist. v. EPA, 990 F.2d 1531, 1543, 23 ELR 20678, 20684 (9th Cir. 1993); Approval and Promulgation of Implementation Plans: Revision of the Visibility FIP for Arizona, 56 Fed. Reg. 50172 (Oct. 3, 1991). 65. 40 C.F.R. § 51.308(e); see 64 Fed. Reg. at 35739. 66. 40 C.F.R. § 51.303. 67. For example, the magnitude of the change can be seen in the fact that the preliminary list of BART-eligible sources in the Grand Canyon Visibility Transport Region includes 23 in Wyoming, 18 in Colorado, 17 in Oregon, 15 in Arizona, 9 in New Mexico, 7 in Nevada, 5 in the Navajo Nation, and 4 in Utah. Compare this list in one area to the single example of BART under the 1980 rules for the entire country. 68. 64 Fed. Reg. at 35742. 69. Id. at 35743. 70. 40 C.F.R. § 51.166(o)(1). 71. U.S. EPA, NEW SOURCE REVIEW WORKSHOP MANUAL D.13 (1990) (draft). 72. An "integral vista" is "a view perceived from within the mandatory Class I Federal area of a specific landmark or panorama located outside of the boundary" of the Class I area. 40 C.F.R. § 51.301. The integral vista must be determined based on criteria promulgated by an FLM, including whether the vista "is important to the visitor's visual experience" of the Class I area. Id. § 51.304(a). 73. Id. § 51.307(a)(1); see also State Implementation Plans for Visibility New Source Review and Monitoring Strategy, 50 Fed. Reg. 28544 (July 12, 1985). 74. 42 U.S.C. § 7475(d)(2)(B), ELR STAT. CAA § 165(d)(2)(B). 75. 40 C.F.R. § 52.27(d). 76. 42 U.S.C. § 7475(d)(2)(C)(ii), ELR STAT. CAA § 165(d)(2)(C)(ii); 40 C.F.R. § 51.166(p)(4). 77. 40 C.F.R. § 51.307(a), as incorporated by § 51.307(c). 78. See 45 Fed. Reg. at 80089; In re Multitrade Ltd. Partnership, 3 E.A.D. 773, n.5 (1992) (PSD appeal); see also Vicki L. Patton, The Visibility Protection Program, in THE CLEAN AIR ACT HANDBOOK 165 (Robert J. Martineau Jr. & David P. Novello eds., 1998). 79. 40 C.F.R. § 51.307(c). 80. 64 Fed. Reg. at 35719. 81. 175 F.3d 1027, 29 ELR 21071, modified & reh'g en banc denied, 195 F.3d 4, 30 ELR 20119 (D.C. Cir. 1999), cert. granted, 120 S. Ct. 2003 (2000). 82. See U.S. EPA, EMISSIONS INVENTORY GUIDANCE FOR IMPLEMENTATION OF OZONE AND PARTICULATE MATTER NATIONAL AMBIENT AIR QUALITY STANDARDS (NAAQS) AND REGIONAL HAZE REGULATIONS (1999) (available from the ELR Document Service, ELR Order No. AD-4199). 83. U.S. EPA, J. David Mobley, Memorandum, Implications of the Court Decision on Emissions Inventory Guidance (July 2, 1999) (available from the ELR Document Service, ELR Order No. AD-4198). 84. Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone, 63 Fed. Reg. 57356 (Oct. 27, 1998). 85. Michigan v. EPA, No. 98-1497 (D.C. Cir. May 25, 1999). 86. Michigan v. EPA, 213 F.3d 663, 30 ELR 20407 (D.C. Cir. 2000). 87. Stay of the Eight-Hour Portion of the Findings of Significant Contribution and Rulemaking for Purposes of Reducing Interstate Ozone Transport, 65 Fed. Reg. 56245 (Sept. 18, 2000). 88. 213 F.3d 663, 30 ELR 20407 (D.C. Cir. 2000). See also 65 Fed. Reg. at 56247. 89. The States that petitioned EPA under section 126 (addressed by today's final rule) are Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, Pennsylvania, and Vermont. Each petition requests that EPA make a finding that certain major stationary sources or groups of sources in upwind States emit NOx emissions in violation of the CAA's prohibition on amounts of emissions that contribute significantly to ozone nonattainment or maintenance problems in the petitioning State. Findings of Significant Contribution and Rulemaking on Section 126 Petitions for Purposes of Reducing Interstate Ozone Transport; Final Rule, 65 Fed. Reg. 2674, 2675 (Jan. 18, 2000). 90. Id. at 2679. 91. Id. at 2676. 92. Id. at 2682-85. 93. The 16 Class I areas on the Colorado Plateau are: Arches National Park, Black Canyon of the Gunnison Wilderness, Bryce Canyon National Park, Canyonlands National Park, Capital Reef National Park, Flat Tops Wilderness, Grand Canyon National Park, Maroon Bells Wilderness, Mesa Verde National Park, Mount Baldy Wilderness, Petrified Forest National Park, San Pedro Parks Wilderness, Sycamore Canyon Wilderness, Weminuche Wilderness, West Elk Wilderness, and Zion National Park, 40 C.F.R. § 51.309(b)(1). 94. 40 C.F.R. § 51.309(f). 95. WESTERN REGIONAL AIR PARTNERSHIP, VOLUNTARY EMISSIONS REDUCTION PROGRAM FOR MAJOR INDUSTRIAL SOURCES OF SULFUR DIOXIDE IN NINE WESTERN STATES AND A BACKSTOP MARKET TRADING PROGRAM § II (Explanation of Decisions) (2000). 96. Id. 97. Id. 98. Id. 99. WESTERN REGIONAL AIR PARTNERSHIP, FACTS ABOUT THE MARKET TRADING PROPOSAL 5 (2000). 100. Id. 101. Id. 102. Internal Letter from Michael A. Soukup et al. to Donald J. Barry, Ass't Secretary for Fish and Wildlife and Parks (June 27, 2000). 103. Letter from Stephen A. Saunders, Acting Ass't Secretary for Fish and Wildlife and Parks, to Carol M. Browner, Administrator of EPA (July 19, 2000). 104. Id. at 3. 105. Id. 106. The seven states are Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont. 107. Petition for Secondary National Ambient Air Quality Standards for Nitrogen Dioxide, Sulfur Dioxide, and Fine Particulate Matter and Related Request, 65 Fed. Reg. 48699, 48700-01 (Aug. 9, 2000). 108. Petition for Secondary National Ambient Air Quality Standards for Nitrogen Dioxide, Sulfur Dioxide, and Fine Particulate Matter and Related Request, 66 Fed. Reg. 107-08 (Jan. 2, 2001). The comment deadline was April 2, 2001. 109. 42 U.S.C. § 7491(a)(1), ELR STAT. CAA § 169A(a)(1). 31 ELR 10957 | Environmental Law Reporter | copyright © 2001 | All rights reserved |