[Federal Register Volume 82, Number 6 (Tuesday, January 10, 2017)]
[Rules and Regulations]
[Pages 3078-3129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00268]
[[Page 3077]]
Vol. 82
Tuesday,
No. 6
January 10, 2017
Part II
Environmental Protection Agency
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40 CFR Parts 51 and 52
Protection of Visibility: Amendments to Requirements for State Plans;
Final Rule
Federal Register / Vol. 82 , No. 6 / Tuesday, January 10, 2017 /
Rules and Regulations
[[Page 3078]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2015-0531; FRL-9957-05-OAR]
RIN 2060-AS55
Protection of Visibility: Amendments to Requirements for State
Plans
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
revisions to requirements under the Clean Air Act (CAA) for state plans
for protection of visibility in mandatory Class I Federal areas in
order to continue steady environmental progress while addressing
administrative aspects of the program. In summary, the revisions
clarify the relationship between long-term strategies and reasonable
progress goals (RPGs) in state implementation plans (SIPs) and the
long-term strategy obligation of all states; clarify and modify the
requirements for periodic comprehensive revisions of SIPs; modify the
set of days used to track progress towards natural visibility
conditions to account for events such as wildfires; provide states with
additional flexibility to address impacts on visibility from
anthropogenic sources outside the United States (U.S.) and from certain
types of prescribed fires; modify certain requirements related to the
timing and form of progress reports; and update, simplify and extend to
all states the provisions for reasonably attributable visibility
impairment, while revoking most existing reasonably attributable
visibility impairment federal implementation plans (FIPs). The EPA also
is making a one-time adjustment to the due date for the next periodic
comprehensive SIP revisions by extending the existing deadline of July
31, 2018, to July 31, 2021.
DATES: This final rule is effective on January 10, 2017.
ADDRESSES: The EPA established Docket ID No. EPA-HQ-OAR-2015-0531 for
this action. All documents in the docket are listed in the http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard
copy. Publicly available docket materials are available electronically
in http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For general information regarding this
rule, contact Mr. Christopher Werner, Office of Air Quality Planning
and Standards, U.S. Environmental Protection Agency, by phone at (919)
541-5133 or by email at [email protected]; or Ms. Rhea Jones,
Office of Air Quality Planning and Standards, U.S. Environmental
Protection Agency, by phone at (919) 541-2940 or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Preamble Glossary of Terms and Acronyms
The following are abbreviations of terms used in this document.
AQRV Air quality related value
BART Best available retrofit technology
bext Light extinction
CAA Clean Air Act
CFR Code of Federal Regulations
EGU Electric generating unit
EPA Environmental Protection Agency
FIP Federal implementation plan
FLM or FLMs Federal Land Manager or Managers
ICR Information collection request
IMPROVE Interagency monitoring of protected visual environments
NAAQS National Ambient Air Quality Standards
NSR New Source Review
NOX Nitrogen oxides
OMB Office of Management and Budget
PM Particulate matter
PM2.5 Particulate matter equal to or less than 2.5
microns in diameter (fine particulate matter)
PM10 Particulate matter equal to or less than 10 microns
in diameter
PRA Paperwork Reduction Act
RHR Regional Haze Rule
RPG Reasonable progress goal
RPO Regional planning organization
SIP State implementation plan
SO2 Sulfur dioxide
TAR Tribal Authority Rule
URP Uniform rate of progress
B. Entities Affected by This Rule
Entities potentially affected directly by this rule include state,
local and tribal \1\ governments, as well as FLMs responsible for
protection of visibility in mandatory Class I federal areas.\2\
Entities potentially affected indirectly by this rule include owners
and operators of sources that emit particulate matter equal to or less
than 10 microns in diameter (PM10), particulate matter equal
to or less than 2.5 microns in diameter (PM2.5 or fine PM),
sulfur dioxide (SO2), oxides of nitrogen (NOX),
volatile organic compounds and other pollutants that may cause or
contribute to visibility impairment. Others potentially affected
indirectly by this rule include members of the general public who live,
work or recreate in mandatory Class I areas affected by visibility
impairment. Because emission sources that contribute to visibility
impairment in Class I areas also may contribute to air pollution in
other areas, members of the general public may also be affected by this
rulemaking.
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\1\ The EPA's visibility protection regulations may apply, as
appropriate under the Tribal Authority Rule (TAR) in 40 CFR part 49,
to an Indian tribe that receives a determination of eligibility for
treatment as a state for purposes of administering a tribal
visibility protection program under section 169A of the CAA. No
tribe has applied for such status, and so at present the EPA is
responsible for implementation of the visibility protection
regulations in areas of tribal authority. This responsibility
includes, but is not limited to, implementation of the reasonable
progress requirements of 40 CFR 51.308(f), as necessary or
appropriate. These rule changes may impact the development and
approvability of tribal implementation plans that tribes may wish to
submit in the future. We encourage states to provide outreach and
engage in discussions with tribes about their regional haze SIPs as
they are being developed.
\2\ Areas designated as mandatory Class I Federal areas consist
of national parks exceeding 6,000 acres, wilderness areas and
national memorial parks exceeding 5,000 acres, and all international
parks that were in existence on August 7, 1977. CAA section 162(a).
In accordance with section 169A of the CAA, the EPA, in consultation
with the Department of Interior, promulgated a list of 156 areas
where visibility is identified as an important value. 44 FR 69122
(November 30, 1979). The extent of a mandatory Class I area includes
subsequent changes in boundaries, such as park expansions. CAA
section 162(a). Although states and tribes may designate as Class I
additional areas that they consider to have visibility as an
important value, the requirements of the visibility program set
forth in section 169A of the CAA apply only to ``mandatory Class I
Federal areas.'' Each mandatory Class I Federal area is the
responsibility of a ``Federal Land Manager.'' CAA section 302(i).
When we use the term ``Class I area'' in this action, we mean any
one of the 156 ``mandatory Class I Federal areas'' where visibility
has been identified as an important value, unless the context makes
it clear that additional non-mandatory Federal Class I areas are
also meant to be included.
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C. Obtaining a Copy of This Document and Other Related Information
In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at http://www.epa.gov/visibility. A ``track changes'' version of the full regulatory text
that incorporates and shows the full context of the changes in this
final action is also available in the docket for this rulemaking. In
addition to the final and regulatory text documents, other relevant
documents are located in the docket, including technical support
documents referenced in this preamble.
[[Page 3079]]
D. Judicial Review
Under CAA section 307(b)(1), judicial review of this final action
is available only by filing a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit by March 13, 2017. Under
CAA section 307(d)(7)(B), any such judicial review is limited to only
those objections that were raised with reasonable specificity in timely
comments. Filing a petition for reconsideration by the Administrator of
this final rule does not affect the finality of this action for
purposes of judicial review, extend the time in which a petition for
judicial review may be filed, or postpone the effectiveness of the
rule. Under CAA section 307(b)(2), the requirements established by this
final rule may not be challenged separately in any civil or criminal
proceedings brought by the EPA to enforce the requirements.
E. Organization of This Federal Register Document
The information presented in this document is organized as follows:
I. General Information
A. Preamble Glossary of Terms and Acronyms
B. Entities Affected by This Rule
C. Obtaining a Copy of This Document and Other Related
Information
D. Judicial Review
E. Organization of This Federal Register Document
F. Background on This Rulemaking
II. Executive Summary
III. Overview of Visibility Protection Statutory Authority,
Regulation and Implementation
A. Visibility in Mandatory Class I Federal Areas
B. Reasonably Attributable Visibility Impairment
C. Regional Haze
D. Air Permitting
IV. Final Rule Revisions
A. Ongoing Litigation in Texas v. EPA
B. Cooperative Federalism
C. Clarifications To Reflect the EPA's Long-Standing
Interpretation of the Relationship Between Long-Term Strategies and
Reasonable Progress Goals
D. Other Clarifications and Changes to Requirements for Periodic
Comprehensive Revisions of Implementation Plans
E. Changes to Definitions and Terminology Related to How Days
Are Selected for Tracking Progress
F. Impacts on Visibility From Anthropogenic Sources Outside the
U.S.
G. Impacts on Visibility From Wildland Fires
H. Clarification of and Changes to the Required Content of
Progress Reports
I. Changes to Reasonably Attributable Visibility Impairment
Provisions
J. Consistency Revisions Related to Permitting of New and
Modified Major Sources
K. Changes to FLM Consultation Requirements
L. Extension of Next Regional Haze SIP Deadline From 2018 to
2021
M. Changes to Scheduling of Regional Haze Progress Reports
N. Changes to the Requirement That Regional Haze Progress
Reports be SIP Revisions
O. Changes to Requirements Related to the Grand Canyon
Visibility Transport Commission
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
VII. Statutory Authority
F. Background on This Rulemaking
On May 4, 2016, the EPA proposed revisions to the 1999 Regional
Haze Rule (RHR),\3\ which include clarifications and modifications to
the requirements that states (and, if applicable, tribes) have to meet
as they implement programs for the protection of visibility in
mandatory Class I Federal areas, under sections 169A and 169B of the
CAA. The EPA held public hearings on May 19, 2016, in Washington, DC
and on June 1, 2016, in Denver, Colorado. States, industry, private
citizens and non-governmental organizations submitted over 180,000
comments. Based on EPA's review of the comments, we are finalizing most
of the proposed revisions, but are also making some changes to respond
to the concerns raised by commenters. These include: Changes to the
proposed terminology used to refer to emissions inventories; changes to
the proposed definitions and terminology related to how days are
selected for tracking progress; changes to the proposed fire-related
definitions and terminology; changes to the proposed required content
of progress reports; changes to the proposed deadline for a state
response to a reasonably attributable visibility impairment
certification; the addition of a requirement for FLMs to consult with
states prior to making a reasonably attributable visibility impairment
certification; and minor changes to the requirements for FLM
consultation on SIPs and progress reports. The EPA is issuing this
final rule under section 307(d) of the CAA. Section 553(d) of the
Administrative Procedure Act (APA), 5 U.S.C. Chapter 5, generally
provides that rules may not take effect earlier than 30 days after they
are published in the Federal Register. CAA section 307(d)(1) clarifies
that: ``The provisions of section 553 through 557 * * * of Title 5
shall not, except as expressly provided in this section, apply to
actions to which this subsection applies.'' Thus, section 553(d) of the
APA does not apply to this rule. The EPA has nevertheless considered
the purposes underlying APA section 553(d) in making this rule
effective upon publication. The primary purpose of the 30-day waiting
period prescribed in section 553(d) is to give affected parties a
reasonable time to adjust their behavior and prepare before the final
rule takes effect. Notably, there are no specific obligations in the
first thirty days of this regulatory action, and all obligations are
established as of a date certain, rather than being tied to the
effective date.
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\3\ Here and elsewhere in this document, the terms ``Regional
Haze Rule,'' ``1999 Regional Haze Rule'' and ``1999 RHR'' refer to
the 1999 final rule (64 FR 35714), as amended in 2005 (70 FR 39156,
July 6, 2005), 2006 (71 FR 60631, October 13, 2006) and 2012 (77 FR
33656, June 7, 2012).
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In addition, section 553(d) allows an effective date less than 30
days after publication for a rule that ``grants or recognizes an
exemption or relieves a restriction.'' An important aspect of this rule
is the 3-year extension for state planning obligations. This extension
is comparable to the grant of an exemption or relief from a restriction
because it provides more time for states to meet a regulatory
requirement. It is thus reasonable to make this action effective upon
publication because states do not require an additional 30 days to
adjust their behavior and prepare for the rule going into effect, and
in fact will gain additional time to meet their planning obligations.
II. Executive Summary
The CAA's visibility protection program, implemented through the
rules at 40 CFR 51.300 through 51.309, helps to protect clear views in
national parks, such as Grand Canyon National Park, and wilderness
areas, such as the Okefenokee National Wildlife Refuge.
[[Page 3080]]
Vistas in these areas are often obscured by visibility-impairing
pollutants caused by emissions from numerous sources located over a
wide geographic area. States are required to submit periodic plans
demonstrating how they have and will continue to make progress towards
achieving their visibility improvement goals. The first state plans
were due in 2007 and covered the 2008-2018 planning period.
The EPA is making changes to the requirements that states (and, if
applicable, tribes) have to meet for the second and subsequent
implementation periods as they develop programs for the protection of
visibility in mandatory Class I areas, consistent with CAA
requirements. Implementation of the EPA's RHR (during the first
implementation period) resulted in significant reductions in emissions
and associated improvements in visibility in many Class I areas (see
Section III.B of this document). This final rule supports continued
environmental progress by retaining much of the 1999 RHR, clarifying or
revising certain provisions of the visibility protection rules in 40
CFR part 51, subpart P, and removing rule provisions that have been
superseded by subsequent developments. An overview of the revisions is
provided later, with additional details throughout this document.
The EPA is clarifying the relationship between long-term strategies
and RPGs in state plans and the long-term strategy obligations of all
states. We are re-iterating that the CAA requires states to consider
the four statutory factors (costs of compliance, time necessary for
compliance, energy and non-air quality environmental impacts and
remaining useful life) in each implementation period to determine the
rate of progress towards natural visibility conditions that is
reasonable for each Class I area. The rate of progress in some Class I
areas may be meeting or exceeding the uniform rate of progress (URP)
that would lead to natural visibility conditions by 2064, but this does
not excuse states from conducting the required analysis and determining
whether additional progress would be reasonable based on the four
factors. The EPA is revising the RHR to address a number of issues, as
discussed in the proposal, including: The way in which a set of days
during each year is to be selected for purposes of tracking progress
towards natural visibility conditions; aspects of the requirements for
the content of progress reports; updating, simplifying and extending to
all states the provisions for reasonably attributable visibility
impairment and revoking FIPs adopted in the 1980s that require the EPA
to assess and address any existing reasonably attributable visibility
impairment situations in some states; and revising the requirement for
states to consult with FLMs. Other changes address administrative
aspects of the program in order to reduce unnecessary burden. These
include the following: The EPA is finalizing a one-time adjustment to
the due date for the next SIPs (from 2018 to 2021); revising the due
dates for progress reports; and changing the requirement that progress
reports be submitted as formal SIP revisions to documents that need not
comply with the procedural requirements of 40 CFR 51.102, 40 CFR 51.103
and Appendix V to Part 51--Criteria for Determining the Completeness of
Plan Submissions. All of these changes apply to periodic comprehensive
state implementation plans developed for the second and subsequent
implementation periods and to progress reports submitted subsequent to
those plans. These changes do not affect the development and review of
state plans for the first implementation period or the first progress
reports due under the 1999 RHR.
The rationale for these changes is described more fully in the
descriptions of each change detailed later in this action as well as in
the preamble to the proposed rule.\4\ The revisions being finalized are
informed by approximately 15 years of implementation of the CAA,
numerous outreach sessions and stakeholder feedback regarding the
regional haze program, and the many constructive comments we received
on the proposal. The clarifications regarding the relationship between
RPGs, long-term strategies and the long-term strategy obligation of all
states are intended to ensure appropriate and consistent understanding
of these requirements as states prepare their plans for the second
implementation period. These clarifications reflect EPA's long-standing
interpretation of the RHR, and are now being codified. The rule
revisions related to how days are selected for visibility progress
tracking will provide the public and state officials more meaningful
information on how existing and potential new emission reduction
measures are contributing or could contribute to reasonable progress in
reducing man-made visibility impairment. Changes to FLM consultation
requirements will help ensure that the expertise and perspective of
these officials are brought into the state plan development process
early enough that they can meaningfully contribute to the state's
deliberations. Collectively, the changes being finalized now will
ensure that the regional haze program is implemented consistent with
CAA obligations, and ensure successful implementation during the second
planning period and beyond.
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\4\ 81 FR 26942 (May 4, 2016).
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With regard to the extension of the deadline of July 31, 2018, to
July 31, 2021, for states' comprehensive SIP revisions for the second
implementation period, this one-time change will benefit states by
allowing them to obtain and take into account information on the
effects of a number of other regulatory programs that will be impacting
sources over the next several years. The change will also allow states
to develop SIP revisions for the second implementation period that are
more integrated with state planning for these other programs, an
advantage that was widely confirmed in early discussions with states
and in comments submitted to the docket for this rulemaking. We
anticipate that this change will result in greater environmental
progress than if planning for these multiple programs were not as well
integrated. The end date for the second implementation period remains
2028, as was required by the 1999 RHR. Other than the one-time change
to the next due date for periodic comprehensive SIP revisions, no
change is being made for due dates for future periodic comprehensive
SIP revisions.
The changes related to progress reports are intended to make the
timing of progress reports more useful as mid-course reviews, to
clarify the required content of progress reports for aspects on which
there has been some confusion, and to allow states to conserve their
administrative resources and make submission of progress reports more
timely by removing the requirement that they be submitted as formal SIP
revisions. We are retaining a requirement that states consult with FLMs
on their progress reports, and that states offer the public an
opportunity to comment on progress reports before they are finalized,
which are two of the steps that applied to progress reports when they
were required to be SIP revisions, and which will help ensure ongoing
accountability for progress reports. Please note that while the
proposed rule included identical FLM consultation periods for progress
reports and periodic comprehensive SIP revisions, FLM consultation
requirements for SIP revisions and progress reports will differ going
forward. This issue is described more fully in Section IV.K of this
document.
[[Page 3081]]
Finally, the 1999 RHR's provisions related to reasonably
attributable visibility impairment required a recurring process of
assessment and planning by the states. Experience since these
provisions were promulgated suggests that situations involving
reasonably attributable visibility impairment occur infrequently and
therefore that an ``as needed'' approach for initiating a state
planning obligation would be a more efficient use of resources. The EPA
is finalizing its proposal to replace the recurring process of
assessment of reasonably attributable visibility impairment with an as-
needed approach. The change to an as-needed approach only applies to
reasonably attributable visibility impairment--periodic planning for
purposes of regional haze will continue. In addition, in light of our
increased understanding of the interstate nature of visibility
impairment, we are expanding the applicability of the requirement to
address reasonably attributable visibility impairment from only states
with Class I areas to all states. If a situation exists or arises in
which a source or a small number of sources in a state without any
Class I area causes reasonably attributable visibility impairment at a
Class I area in another state, this mechanism will ensure adequate
visibility protection.
III. Overview of Visibility Protection Statutory Authority, Regulation
and Implementation
A. Visibility in Mandatory Class I Federal Areas
Reduction in visibility caused by emissions of PM10,
PM2.5 (e.g., sulfates, nitrates, organic carbon, elemental
carbon and soil dust) and their precursors (e.g., SO2,
NOX and, in some cases, ammonia and volatile organic
compounds) can take the form of either visibly distinct layers or
plumes of pollution or more uniform ``regional haze.'' Fine particle
precursors react in the atmosphere to form PM2.5, which
along with directly emitted PM10 and PM2.5
impairs visibility by scattering and absorbing light. This light
scattering reduces the clarity, color and visible distance that one can
see. Particulate matter can also cause serious health effects in humans
(including premature death, heart attacks, irregular heartbeat,
aggravated asthma, decreased lung function and increased respiratory
symptoms) and contribute to environmental effects such as acid
deposition and eutrophication.
Data from the existing visibility monitoring network, the
``Interagency Monitoring of Protected Visual Environments'' (IMPROVE)
monitoring network, show that at the time the RHR was finalized in
1999, visibility impairment caused by air pollution occurred virtually
all the time at most national park and wilderness areas. The formally
defined average visual range \5\ in many Class I areas in the western
U.S. was 62-93 miles. In some Class I areas, these visual ranges may
have been impacted by natural wildfire and dust episodes in addition to
anthropogenic impacts. In most of the eastern Class I areas of the
U.S., the average visual range was less than 19 miles.\6\
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\5\ Visual range is the greatest distance, in kilometers or
miles, at which a certain dark object can be discerned against the
sky by a typical observer under certain defined conditions. Visual
range defined in this highly controlled manner is inversely
proportional to light extinction (bext) by particles and
gases and is calculated as: Visual Range = 3.91/bext
(Bennett, M.G., The physical conditions controlling visibility
through the atmosphere; Quarterly Journal of the Royal
Meteorological Society, 1930, 56, 1-29). Light extinction has units
of inverse distance (i.e., Mm-1 or inverse Megameters
(mega = 10\6\)). Under conditions other than those defined in this
reference, people's ability to discern landscape features may vary
and be different than implied by the value of the visual range as
calculated from light extinction using this formula.
\6\ 64 FR 35715 (July 1, 1999).
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Based on visibility data through 2014, the visual range has
increased 10 to 20 miles (4 to 7 deciviews) \7\ since the year 2000 in
eastern Class I areas on the 20 percent haziest days. Some western
Class I areas have also experienced visual range increases of 5 to 10
miles (1 to 4 deciviews) on the 20 percent haziest days. However, in
some areas, such as Sawtooth Wilderness area in Idaho, improvements
from reduced emissions from man-made sources have been overwhelmed by
impacts from wildfire and/or dust events. There are also some western
areas where visibility has improved only by a slight amount or made no
progress.
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\7\ The deciview haze index (discussed in more detail in Section
III.B.3 of this document) is logarithmically related to light
extinction and is used by the regional haze program because it
describes uniform differences in visibility across a range of
visibility conditions.
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B. Reasonably Attributable Visibility Impairment
In section 169A of the 1977 Amendments to the CAA, Congress enacted
a program for protecting visibility in the nation's national parks,
wilderness areas and other Class I areas due to their ``great scenic
importance.'' \8\ Section 169A(a) of the CAA establishes 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 manmade air pollution.''
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\8\ H.R. Rep. No. 294, 95th Cong. 1st Sess. at 205 (1977).
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In 1980, the EPA promulgated regulations to address visibility
impairment in Class I areas, including but not limited to impairment
that is ``reasonably attributable'' to a single source or small group
of sources, i.e., ``reasonably attributable visibility impairment.''
\9\ These regulations, codified at 40 CFR 51.300 through 51.307,
represented the first phase in addressing visibility impairment from
existing sources. They also addressed potential visibility impacts from
new and modified major sources already subject to permitting
requirements for purposes of protection of the National Ambient Air
Quality Standards (NAAQS) and preventing significant deterioration of
air quality.
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\9\ 45 FR 80084 (December 2, 1980).
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Notably, not all states were subject to the 1980 reasonably
attributable visibility impairment requirements. Under the 1980 rules,
the 35 states and one territory (Virgin Islands) containing Class I
areas were required to submit SIPs addressing reasonably attributable
visibility impairment. The 1980 rules required states to (1) develop,
adopt, implement and evaluate long-term strategies for making
reasonable progress toward remedying existing and preventing future
impairment in the mandatory Class I areas through their SIP revisions;
(2) adopt certain measures to assess potential visibility impacts due
to new or modified major stationary sources, including measures to
notify FLMs of proposed new source permit applications, and to consider
visibility analyses conducted by FLMs in their new source permitting
decisions; (3) conduct visibility monitoring in mandatory Class I
areas, and (4) revise their SIPs at 3-year intervals to assure
reasonable progress toward the national visibility goal. In addition,
the 1980 regulations provided that an FLM may certify to a state at any
time that visibility impairment at a Class I area is reasonably
attributable to a single source or a small number of sources. Following
such a certification by an FLM, a state was required to address the
requirements for best available retrofit technology (BART) for BART-
eligible sources considered to be contributing to reasonably
attributable visibility impairment. Also, the appropriate control of
any source certified by an FLM, whether BART-eligible or not, would be
specifically addressed in the long-term strategy for making reasonable
progress toward the national goal of natural visibility conditions. See
the
[[Page 3082]]
1980 rule's version of 40 CFR 51.302(c)(2)(i).
In practice, the 1980 rules resulted in few SIPs being submitted by
states and approved by the EPA, requiring the EPA to develop and apply
FIPs to those states that failed to submit an approvable reasonably
attributable visibility impairment SIP.\10\ Most of these FIPs
contained planning requirements only. That is, most of the FIPs merely
committed the EPA to assessing on a 3-year cycle whether reasonably
attributable visibility impairment was occurring, and if so, to
adopting an appropriate strategy of required emission controls.
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\10\ 52 FR 45132 (November 24, 1987).
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C. Regional Haze
1. Requirements of the 1990 CAA Amendments and the EPA's Regional Haze
Rule
In 1990, Congress added section 169B to the CAA to further address
regional haze issues. Among other things, this section included
provisions for the EPA to conduct visibility research on regional
regulatory tools with the National Park Service and other federal
agencies, and to provide periodic reports to Congress on visibility
improvements due to implementation of other air pollution protection
programs. CAA section 169B also generally allowed the Administrator to
establish visibility transport commissions and specifically required
the Administrator to establish a commission for the Grand Canyon area.
The EPA promulgated a rule to address regional haze in 1999.\11\ The
1999 RHR established a more comprehensive visibility protection program
for Class I areas. The requirements for regional haze are found at 40
CFR 51.308 and 51.309.
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\11\ 64 FR 35714 (July 1, 1999).
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The requirement to submit a regional haze SIP applies to all 50
states, the District of Columbia and the Virgin Islands.\12\ Congress
subsequently amended the deadlines for regional haze SIPs, and the EPA
adopted regulations requiring states to submit the first implementation
plans addressing regional haze visibility impairment no later than
December 17, 2007.\13\ These initial SIPs were to address emissions
from certain large stationary sources and other requirements, which we
discuss in greater detail later. Few states submitted a regional haze
SIP by the December 17, 2007, deadline, and on January 15, 2009, the
EPA found that 37 states, the District of Columbia and the Virgin
Islands had failed to submit SIPs addressing the regional haze
requirements.\14\ These findings triggered a requirement for the EPA to
promulgate FIPs within 2 years unless a state submitted a SIP and the
EPA approved that SIP within the 2-year period.\15\ Most states
eventually submitted SIPs.
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\12\ This requirement does not apply to other U.S. territories
defined as ``states'' under the CAA because they do not have
mandatory Class I Federal areas and are too distant from any such
areas to affect them.
\13\ 70 FR 39104 (July 6, 2005).
\14\ 74 FR 2392 (January 15, 2009).
\15\ CAA section 110(c).
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The 1999 RHR also required states to submit periodic comprehensive
revisions of their regional haze SIPs. Under 40 CFR 51.308(f) of the
1999 RHR, states were required to submit the first such revision by no
later than July 31, 2018, and every 10 years thereafter. These periodic
comprehensive SIP revisions were required to address a number of
elements, including current visibility conditions and actual progress
made toward natural conditions during the previous implementation
period; a reassessment of the effectiveness of the long-term strategy
in achieving the RPGs over the prior implementation period; and
affirmation of or revision to the RPGs. Further information on these
periodic comprehensive SIP revisions can be found in Section III.B.3 of
this document. In addition, the 1999 RHR's 40 CFR 51.308(g) required
each state to submit progress reports, in the form of SIP revisions,
every 5 years after the date of the state's initial SIP submission. In
the progress reports, states were required to evaluate the progress
made towards the RPGs for mandatory Class I areas located within the
state, as well as those mandatory Class I areas located outside the
state that may be affected by emissions from within the state. Further
information on progress reports can be found in Section III.B.4 of this
document.
The 1999 RHR sought to improve efficiency and transparency by
requiring states to coordinate planning under the 1980 reasonably
attributable visibility impairment provisions with planning under the
provisions added by the 1999 RHR. The states were directed to submit
reasonably attributable visibility impairment SIPs every 10 years
rather than every 3 years, and to do so as part of the newly required
regional haze SIPs. Many, but not all, states submitted initial
regional haze SIPs that committed to this coordinated planning process.
Coordination of reasonably attributable visibility impairment and
regional haze planning is described in more detail later.
2. Roles of Agencies in Addressing Regional Haze
Successful implementation of the regional haze program requires
long-term regional coordination among states, tribal governments and
various federal agencies. As noted earlier, pollution affecting the air
quality in Class I areas is emitted from many individual sources and
can be transported over long distances, even hundreds of miles.
Therefore, to effectively address the problem of visibility impairment
in Class I areas, states need to develop strategies in coordination
with one another, taking into account the effect of emissions from one
jurisdiction on the air quality in another.
Because the pollutants that lead to regional haze can originate
from sources located across broad geographic areas, and because these
sources may be numerous and emit amounts of pollutants that, even
though small, contribute to the collective whole, the EPA encourages
states to address visibility impairment from a regional perspective.
Five regional planning organizations (RPOs) were formed after the
promulgation of the RHR in 1999 to address regional haze and related
issues: The Central Regional Air Planning Association, the Mid-
Atlantic/Northeast Visibility Union, the Midwest Regional Planning
Organization, the Western Regional Air Partnership and the Visibility
Improvement State and Tribal Association of the Southeast.\16\ The RPOs
first evaluated technical information to better understand how their
states and tribes impact Class I areas across the country, and then
supported the development (by states) of regional strategies to reduce
emissions of pollutants that lead to regional haze.
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\16\ See ``Visibility--Regional Planning Organizations,''
available at https://www.epa.gov/visibility/visibility-regional-planning-organizations.
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3. Requirements for the Regional Haze SIPs
As mentioned earlier, states were required to submit SIPs
addressing regional haze visibility impairment in 2007, which covered
what we refer to as the first implementation period (2008-2018). A
focus of the 2007 SIP obligation was to give specific attention to
certain stationary sources that were in existence on August 7, 1977,
but were not in operation before August 7, 1962, by requiring these
sources, where appropriate, to install BART controls for the purpose of
eliminating or reducing visibility impairment. These SIPs included a
number of components and/
[[Page 3083]]
or analyses, which are described later along with information regarding
whether or not this final rule impacts that particular SIP element.
BART Requirement. Section 169A of the CAA directs states to
evaluate the use of retrofit controls at certain larger, often
uncontrolled, older stationary sources in order to address visibility
impacts from these sources. Specifically, section 169A(b)(2)(A) of the
CAA requires states to revise their SIPs to include such measures as
may be necessary to make reasonable progress towards the natural
visibility goal, including a requirement that certain categories of
existing major stationary sources \17\ procure, install and operate
BART. Under the RHR, the EPA directed states to conduct BART
determinations for any ``BART-eligible'' sources \18\ that may be
anticipated to cause or contribute to any visibility impairment in a
Class I area. The EPA published the Guidelines for BART Determinations
Under the Regional Haze Rule at appendix Y to 40 CFR part 51
(hereinafter referred to as the ``BART Guidelines'') to assist states
in determining which of their sources should be subject to the BART
requirements and in determining appropriate emission limits for each
applicable source.\19\ The 1999 RHR also gave states the flexibility to
adopt an emissions trading program or other alternative program in lieu
of source-specific BART as long as the alternative provided greater
reasonable progress towards improving visibility than BART and met
certain other requirements set out in the 1999 RHR's 40 CFR
51.308(e)(2).
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\17\ The set of ``major stationary sources'' potentially
subject-to-BART is listed in CAA section 169A(g)(7).
\18\ BART-eligible sources are those sources that have the
potential to emit 250 tons or more of a visibility-impairing air
pollutant, were not in operation prior to August 7, 1962, but were
in existence on August 7, 1977, and whose operations fall within one
or more of 26 specifically listed source categories. 40 CFR 51.301.
\19\ 70 FR 39104 (July 6, 2005).
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States were required to undertake the BART determination process
during the first implementation period. The BART requirement was a one-
time requirement, but a BART-eligible source may need to be re-assessed
for additional controls in future implementation periods under the
CAA's reasonable progress provisions. Specifically, we anticipate that
a number of BART-eligible sources that installed only moderately
effective controls (or no controls at all) will need to be reassessed.
Under the 1999 RHR's 40 CFR 51.308(e)(5), BART-eligible sources are
subject to the requirements of 40 CFR 51.308(d), which addresses
regional haze SIP requirements for the first implementation period, in
the same manner as other sources going forward.\20\
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\20\ Under the 1999 RHR's 40 CFR 51.308(e)(5), BART-eligible
sources were subject to the requirements of 40 CFR 51.308(d), which
addresses regional haze SIP requirements for the first
implementation period, in the same manner as other sources going
forward.
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Visibility Metric. The RHR established the 24-hour deciview haze
index as the principal metric or unit for expressing visibility on any
particular day.\21\ The deciview haze index is calculated from light
extinction values and expresses uniform changes in the degree of haze
in terms of common increments across the entire range of visibility
conditions, from pristine to extremely hazy. Deciview values are
calculated by using air quality measurements to estimate light
extinction, most recently using the revised IMPROVE algorithm, and then
transforming the value of light extinction using a logarithmic
function.\22\ The deciview is a more useful measure for comparing days
and tracking progress in improving visibility than light extinction
itself because each deciview change is an equal incremental change in
visibility typically perceived by a human observer. Most people can
detect a change in visibility of one deciview. The preamble to the 1999
RHR provided additional details about the deciview haze index.
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\21\ See 70 FR 39104, 39118.
\22\ Pitchford, M.; Malm, W.; Schichtel, B.; Kumar, N.;
Lowenthal, D.; Hand, J. Revised algorithm for estimating light
extinction from IMPROVE particle speciation data; J. Air & Waste
Manage. Assoc. 2007, 57, 1326-1336; doi: 3155/1047-3289.57.11.1326.
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Baseline, Current and Natural Conditions and Tracking Changes in
Visibility. To track changes in visibility over time at each of the 156
Class I areas covered by the visibility program (40 CFR 81.401-437),
and as part of the process for determining reasonable progress, states
were required to calculate visibility conditions at each Class I area
for a 5-year period just preceding each periodic comprehensive SIP
revision.\23\ To do this, the 1999 RHR required states to determine
average visibility conditions (in deciviews) for the 20 percent least
impaired days and the 20 percent most impaired days over the 5-year
period at each of their Class I areas.
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\23\ Under the 1999 RHR, states were also required to
periodically review progress in reducing impairment every 5 years.
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States were also required to develop an estimate of natural
visibility conditions for the purpose of estimating progress toward the
national goal. Natural visibility is determined by estimating the
natural concentrations of pollutants that cause visibility impairment
and then calculating total light extinction based on those estimates.
The EPA has provided guidance to states regarding how to calculate
baseline, natural and current visibility conditions at each Class I
area.\24\ After the EPA issued this guidance, a number of interested
parties together developed a set of alternative estimates of natural
conditions using a more refined approach (known as ``NC-II''), which
were used by most states in their first regional haze SIPs with EPA
approval.\25\
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\24\ Guidance for Estimating Natural Visibility Conditions Under
the Regional Haze Rule, September 2003, EPA-454/B-03-005, available
at http://www3.epa.gov/ttn/caaa/t1/memoranda/rh_envcurhr_gd.pdf; and
Guidance for Tracking Progress Under the Regional Haze Rule,
September 2003, EPA-454/B-03-004, available at http://www3.epa.gov/ttn/oarpg/t1/memoranda/rh_tpurhr_gd.pdf.
\25\ Regional Haze Rule Natural Level Estimates Using the
Revised IMPROVE Aerosol Reconstructed Light Extinction Algorithm,
available at http://vista.cira.colostate.edu/improve/Publications/GrayLit/032_NaturalCondIIpaper/Copeland_etal_NaturalConditionsII_Description.pdf; Revised IMPROVE
Algorithm for Estimating Light Extinction from Particle Speciation
Data, available at http://vista.cira.colostate.edu/improve/Publications/GrayLit/019_RevisedIMPROVEeq/RevisedIMPROVEAlgorithm3.doc; and Regional Haze Data Analysis
Workshop, June 8, 2005, Denver, CO, agenda and documents available
at http://www.wrapair.org/forums/aamrf/meetings/050608den/index.html.
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Baseline visibility conditions reflect the degree of visibility
impairment for the 20 percent least impaired days and 20 percent most
impaired days for each calendar year from 2000 to 2004. Using
monitoring data for 2000 through 2004, states are required to calculate
the average degree of visibility impairment for each Class I area,
based on the average of annual values of these two metrics over the 5-
year period. The comparison of baseline visibility conditions to
natural visibility conditions indicates the amount of improvement that
would be necessary to attain natural visibility. Over time, the
comparison of current visibility conditions \26\ to the baseline
visibility conditions will indicate the amount of progress that has
been made.
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\26\ Given the required timing of the first regional haze SIPs
that were due by December 17, 2007, ``baseline visibility
conditions'' were also the ``current'' visibility conditions. For
future SIPs, ``current conditions'' will be updated to the 5-year
period just preceding the SIP revision.
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The 1999 RHR defined ``visibility impairment'' as a humanly
perceptible change (i.e., difference) in visibility from that which
would have existed under natural conditions. The rule directed the
tracking of visibility
[[Page 3084]]
impairment on the 20 percent ``most impaired days'' and 20 percent
``least impaired days'' in order to determine progress towards natural
visibility conditions. 40 CFR 51.308(d)(2)(i-iv). In light of the 1999
RHR's definition of ``impairment,'' the term ``impaired'' in the
phrases ``most impaired days'' and ``least impaired days'' could be
taken to mean anthropogenic impairment only and to exclude reductions
in visibility attributable to natural emission sources. However, the
preamble to the 1999 RHR stated that the least and most impaired days
were to be selected as the monitored days with the lowest and highest
actual deciview levels caused by all sources, respectively. In 2003,
the EPA issued guidance describing in detail the steps necessary for
selecting and calculating light extinction on the ``worst'' and
``best'' visibility days, and this guidance also indicated that the
monitored days with the lowest and highest actual deciview levels were
to be selected as the least and most impaired days.\27\ This approach
worked well in many Class I areas but caused some concerns in other
areas.
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\27\ Guidance for Tracking Progress Under the Regional Haze
Rule, September 2003, http://www3.epa.gov/ttnamti1/files/ambient/visible/tracking.pdf
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Specifically, the ``worst'' visibility days in some Class I areas
can be impacted by irregularly occurring natural emissions (e.g.,
wildland wildfires and dust storms). These natural contributions to
haze vary in magnitude and timing. Anticipating this variability, in
the 1999 RHR the EPA decided to use 5-year averages of visibility data
to minimize the impacts of the interannual variability in natural
events. However, additional data available through the IMPROVE
monitoring network indicate that in many Class I areas 5-year averages
are not sufficient for minimizing these erratic impacts. As a result,
visibility improvements resulting from decreases in anthropogenic
emissions can be hidden by this natural variability. Further, because
of the logarithmic deciview scale, changes in PM concentrations and
light extinction due to reductions in anthropogenic emissions have
little effect on the deciview value on days with high PM concentrations
and light extinction due to natural sources. The use of the days with
the highest deciview index values, without consideration of the source
of the visibility impacts, thus created difficulties when attempting to
track visibility improvements resulting from controls on anthropogenic
sources. States identified this difficulty prior to the start of this
rulemaking and asked that the EPA explore options for focusing the
visibility tracking metric on the effect of controlling anthropogenic
emissions. To help states minimize the impacts of emissions from
natural sources on visibility tracking via an approach that is also
consistent with the CAA's goal to reduce visibility impairment
resulting from man-made air pollution, the EPA proposed to more
explicitly (and consistently) address this issue for future
implementation periods.
Reasonable Progress Goals and Long-Term Strategy. To ensure
continuing progress towards achieving the natural visibility goal, the
1999 RHR required that each SIP submission in the series of periodic
comprehensive regional haze SIPs establish two distinct RPGs (one for
the most impaired and one for the least impaired days) for every Class
I area. See 40 CFR 51.308(d)(1). The 1999 RHR did not mandate specific
milestones or rates of progress, but instead called for states to
establish goals that provide for ``reasonable progress'' toward
achieving natural visibility conditions. Specifically, states were
required to provide for an improvement in visibility for the most
impaired days over the period of the SIP, and ensure no degradation in
visibility for the least impaired days over the same period.
To set their RPGs, states were required to consider the four
statutory reasonable progress factors: (1) The costs of compliance; (2)
the time necessary for compliance; (3) the energy and non-air quality
environmental impacts of compliance; and (4) the remaining useful life
of any potentially affected sources. States were required to
demonstrate in their SIPs how these factors were considered when
selecting the RPGs for the least impaired and most impaired days for
each applicable Class I area. The RPGs are not enforceable.\28\
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\28\ 64 FR 35754.
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Consistent with the requirement in section 169A(b) of the CAA that
states include in their regional haze SIPs a 10- to 15-year strategy
for making reasonable progress, 40 CFR 51.308(d)(3) of the 1999 RHR
required states to include a long-term strategy in their regional haze
SIPs. Under the 1999 RHR, a state's long-term strategy is inextricably
linked to the RPGs because the long-term strategy ``must include
enforceable emission limitations, compliance schedules, and other
measures as necessary to achieve the reasonable progress goals
established by states having mandatory Class I Federal areas.'' 40 CFR
51.308(d)(3).
When setting their RPGs, states were also required to consider the
rate of progress for the most impaired days that would be needed to
reach natural visibility conditions by 2064 and the emission reduction
measures that would be needed to achieve that rate of progress over the
approximately 10-year period of the SIP. The purpose of this
requirement was to allow for analytical comparisons between the rate of
progress that would be achieved by the state's chosen set of control
measures and the URP. If a state's RPG for the most impaired days
achieved progress that was equal to the URP, the RPG would be ``on the
URP line'' \29\ or ``on the glidepath.'' If a state's RPG for the most
impaired days was not on the glidepath, 40 CFR 51.308(d)(1)(ii)
required the state to demonstrate that it would not be reasonable to
require additional control measures and adopt an RPG that would be on
the glidepath. The 1999 RHR did not establish an enforceable
requirement that natural conditions be reached by 2064. The EPA
approved a number of SIPs for the first implementation period that
projected that continued progress at the rate expected to be achieved
during the first period would not result in natural conditions until
after 2064. However, the EPA also disapproved some SIPs during the
first implementation period where states argued that no analysis of the
four factors was necessary because visibility was projected to be
``below the glidepath'' at the end of the implementation period even
without additional measures.\30\
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\29\ The URP for the most impaired days can be represented in a
graphical manner by drawing the ``URP line'' on a chart with
calendar year on the horizontal axis and deciviews for the 20
percent most impaired day on the vertical axis.
\30\ 76 FR 64186 at 64195 (October 17, 2011) (proposed action on
Arkansas's RPGs), 77 FR 14604 at 14612 (March 12, 2012) (final
action on Arkansas's RPGs).
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In setting their RPGs, each state with one or more Class I areas
was also required to consult with potentially ``contributing states,''
i.e., other nearby states with emission sources that may be affecting
visibility impairment in the state's Class I areas. In such cases, the
contributing state was required to demonstrate that it included in its
long-term strategy all measures necessary to obtain its share of the
emission reductions needed to make reasonable progress at the Class I
area.\31\ In
[[Page 3085]]
determining whether the upwind and downwind states' long-term
strategies and RPGs provided for reasonable progress toward natural
visibility conditions, the EPA was required to evaluate the
demonstrations developed by the state. 40 CFR 51.308(d)(1).
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\31\ This consultation obligation is a key element of the
regional haze program. Congress, the states, the courts and the EPA
have long recognized that regional haze is a regional problem that
requires regional solutions. Vermont v. Thomas, 850 F.2d 99, 101 (2d
Cir. 1988). Ultimately, early actions by states such as Vermont were
influential in Congressional enactment of section 169B of the CAA in
1990. Congress intended this provision of the CAA to ``equalize the
positions of the States with respect to interstate pollution,'' (S.
Rep. No. 95-127, at 41 (1977)) and our interpretation accomplishes
this goal by ensuring that downwind states can seek recourse from us
if upwind states are not doing enough to address visibility
transport.
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The 1999 RHR required states to consider all types of anthropogenic
sources of visibility impairment when developing their long-term
strategies, including major and minor stationary sources, mobile
sources and area sources. States had to consider a number of factors
when developing their long-term strategies, including: (1) Emission
reductions due to ongoing air pollution control programs, including
measures to address reasonably attributable visibility impairment; (2)
measures to mitigate the impacts of construction activities; (3)
emissions limitations and schedules for compliance; (4) source
retirement and replacement schedules; (5) smoke management techniques
for agricultural and forestry management purposes; (6) the
enforceability of emissions limitations and control measures; and (7)
the anticipated net effect on visibility due to projected changes in
point, area and mobile source emissions over the period addressed by
the long-term strategy. 40 CFR 51.308(d)(3)(v).
Coordinating Regional Haze and Reasonably Attributable Visibility
Impairment. The 1999 RHR fulfilled the EPA's responsibility to put in
place a national regulatory program that addresses both reasonably
attributable visibility impairment and regional haze. As part of the
1999 RHR, the EPA revised the schedule in 40 CFR 51.306(c) for the
periodic review of reasonably attributable visibility impairment SIPs.
The revised version of this subsection required that the reasonably
attributable visibility impairment plan must continue to provide for a
periodic review and SIP revision not less frequently than every 3 years
until the date of submission of the state's first plan addressing
regional haze visibility impairment. On or before this date, the state
must have revised its plan to provide for periodic review and revision
of a coordinated long-term strategy for addressing reasonably
attributable visibility impairment and regional haze, and the state
must have submitted the first such coordinated long-term strategy with
its first regional haze SIP. Under the 1999 RHR, states were required
to submit future coordinated long-term strategies, and periodic
progress reports evaluating progress towards RPGs. The state's periodic
review of its long-term strategy was required to report on both
regional haze visibility impairment and reasonably attributable
visibility impairment and was required to be submitted to the EPA in
the form of a periodic comprehensive SIP revision. Under our proposed
changes to the reasonably attributable visibility impairment
provisions, this coordinated approach to a state's long-term strategies
for regional haze and reasonably attributable visibility impairment
would continue, but will apply in the infrequent case that a state
receives a certification of reasonably attributable visibility
impairment.
Monitoring Strategy and Other Implementation Plan Requirements. 40
CFR 51.308(d)(4) of the 1999 RHR included the requirement for a
monitoring strategy for measuring, characterizing and reporting of
regional haze visibility impairment that is representative of all
mandatory Class I areas within the state. The strategy was required to
be coordinated with the monitoring strategy required in the 1999 RHR
version of 40 CFR 51.305 for reasonably attributable visibility
impairment. Compliance with this requirement could be met through
``participation'' in the IMPROVE network.\32\ A state's participation
in the IMPROVE network includes state support for the use of CAA state
and tribal assistance grants funds to partially support the operation
of the IMPROVE network as well as the state's review and use of
monitoring data from the network. The monitoring strategy was due with
the first regional haze SIP, and under the 1999 RHR it must be reviewed
every 5 years as part of the progress reports. The monitoring strategy
must also provide for additional monitoring sites if the IMPROVE
network is not sufficient to determine whether RPGs will be met. To
date, neither the EPA nor any state has concluded that the IMPROVE
network is not sufficient in this way. The evolution of the IMPROVE
network will be guided by a Steering Committee that has FLM, EPA and
state participation, within the evolving context of available
resources. It is the EPA's objective that individual states will not be
required to commit to providing monitoring sites beyond those planned
to be operated by the IMPROVE program during the period covered by a
SIP revision. Further, if the IMPROVE program must discontinue a
monitoring site, this would not be a basis for an approved regional
haze SIP to be found inadequate; but rather, the state, the federal
agencies and the IMPROVE Steering Committee should work together to
address the RHR requirements when the next SIP revision is developed.
As described in Section IV.H of this document, we proposed that
progress reports from individual states no longer be required to review
and modify as necessary the state's monitoring strategy. The IMPROVE
Steering Committee structure, the requirement to review the monitoring
strategy as part of the periodic comprehensive SIP revision, and the
requirement for a state to consider any recommendations from the EPA or
a FLM for additional monitoring for purposes of reasonably attributable
visibility impairment will be sufficient to achieve the objective of
the current progress report requirement to review the monitoring
strategy.
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\32\ While compliance with 40 CFR 51.308(d)(4) for regional haze
may be met through participation in the IMPROVE network, additional
analysis or techniques beyond participation in IMPROVE may be
required for compliance with 40 CFR 51.305 for reasonably
attributable visibility impairment.
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Consultation Between States and FLMs. The 1999 RHR required that
states consult with FLMs before adopting and submitting their SIPs. 40
CFR 51.308(i). There are two parts to this requirement. First, states
must provide FLMs an opportunity for an in-person consultation meeting
at least 60 days prior to holding any public hearing on the SIP. This
consultation meeting was required to include the opportunity for the
FLMs to discuss their assessment of impairment of visibility in any
Class I area and to offer recommendations on the development of the
RPGs and on the development and implementation of strategies to address
visibility impairment. Further, a state was required to include in its
SIP a description of how it addressed any comments provided by the
FLMs. We proposed to require that states offer the opportunity for this
already-required in-person consultation meeting early enough that
information and recommendations provided by the FLMs can meaningfully
inform the state's decisions on the long-term strategy. The second part
of the consultation requirement is that a SIP must provide procedures
for continuing consultation between the state and FLMs regarding the
state's visibility protection program, including development and review
of SIP revisions, progress reports, and the implementation of other
programs having the potential to contribute to impairment of visibility
in Class I areas.
[[Page 3086]]
We did not propose any change to this requirement for procedures for
continuing consultation. This continuing consultation should provide
opportunities for FLM input on the scope and methods for the state's
technical analyses as they are being planned, while the in-person
consultation meeting required by the first part of the consultation
requirement will occur as a state is making decisions based on the
conclusions of its technical analyses. FLMs often participate in multi-
state workgroups on regional haze and related issues and attend multi-
state meetings on these topics, which further facilitates collaboration
with individual states during SIP development.
4. Requirements for the Regional Haze Progress Reports
The 1999 RHR included provisions for progress reports to be
submitted at 5-year intervals, counting from the submission of the
first required SIP revision by the particular state. The requirements
for these reports were included for most states in 40 CFR 51.308(g) and
(h). Three western states (New Mexico, Utah and Wyoming) exercised an
option provided in the RHR to meet alternative requirements contained
in 40 CFR 51.309 for their SIPs. For these three states, the
requirements for the content of the 5-year progress reports are
identical to those for the other states, but for these states the
requirements for the reports were contained in 40 CFR 51.309(d)(10).
This section specifies fixed due dates in 2013 and 2018 for these
progress reports. The 1999 RHR then provided that these three states
will revert to the progress report requirements in 40 CFR 51.308 after
the report currently due in 2018. We did not propose this aspect of the
RHR.
An explanation of the 5-year progress reports is provided in the
preamble to the 1999 RHR.\33\ This 5-year review was intended to
provide an interim report on the implementation of, and if necessary
mid-course corrections to, the regional haze SIP, which is generally
prepared in 10-year increments. The progress report provides an
opportunity for public input on the state's (and the EPA's) assessment
of whether the approved regional haze SIP is being implemented
appropriately and whether reasonable visibility progress is being
achieved consistent with the projected visibility improvement in the
SIP.
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\33\ 64 FR 35747 (July 1, 1999).
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Required elements of the progress report under the 1999 RHR
included: The status of implementation of all measures included in the
regional haze SIP; a summary of the emissions reductions achieved
throughout the state; an assessment of current visibility conditions
and the change in visibility impairment over the past 5 years; an
analysis tracking the change over the past 5 years in emissions of
pollutants contributing to visibility impairment from all sources and
activities within the state; an assessment of any significant changes
in anthropogenic emissions within or outside the state that have
occurred over the past 5 years that have limited or impeded progress in
reducing pollutant emissions and improving visibility; an assessment of
whether the current SIP elements and strategies are sufficient to
enable the state (or other states with mandatory Class I areas affected
by emissions from the state) to meet all established RPGs; a review of
the state's visibility monitoring strategy and any modifications to the
strategy as necessary; and a determination of the adequacy of the
existing SIP (including taking one of four possible actions).\34\ We
proposed to include a number of clarifications and changes to the
requirements for the content of progress reports.
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\34\ 40 CFR 51.308(g). See also General Principles for the 5-
Year Regional Haze Progress Reports for the Initial Regional Haze
State Implementation Plans (Intended to Assist States and EPA
Regional Offices in Development and Review of the Progress Reports),
April 2013, EPA-454/B-03-005, available at https://www.epa.gov/sites/production/files/2016-03/documents/haze_5year_4-10-13.pdf,
(hereinafter referred to as ``our 2013 Progress Report Guidance'').
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Under the 1999 RHR's 40 CFR 51.308(g) and 40 CFR 51.309(d)(10),
progress reports must take the form of SIP revisions, so states must
follow formal administrative procedures (including public review and
opportunity for a public hearing) before formally submitting the 5-year
progress report to the EPA. See 40 CFR 51.102, 40 CFR 51.103, and
Appendix V to Part 51--Criteria for Determining the Completeness of
Plan Submissions. We proposed to remove the requirement that progress
reports be submitted as SIP revisions.
In addition, because progress reports were SIP revisions under the
1999 RHR, states were required to provide FLMs with an opportunity for
in-person consultation at least 60 days prior to any public hearing on
progress report. See 1999 RHR version of 40 CFR 51.308(i)(2) and (3).
Procedures must also be provided for continuing consultation between
the state and FLM regarding development and review of progress reports.
See 40 CFR 51.308(i)(4).
Under the 1999 RHR, the first progress reports were due 5 years
from the initial SIP submittal (with the next progress reports for New
Mexico, Utah, and Wyoming due in 2018). Most of these deadlines have
already passed although some are due in 2016 and in 2017.\35\
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\35\ A number of first progress reports have been submitted by
states. Several of these progress reports have been approved, action
on several others has been proposed, and EPA is still reviewing the
other submitted reports. There are also states for which progress
reports are overdue, and a few states for which progress reports are
not yet due and have not been submitted.
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5. Tribes and Regional Haze
Tribes have a distinct interest in regional haze due to the effects
of visibility impairment on tribal lands as well as on other lands of
high value to tribal members, such as landmarks considered sacred.
Tribes, therefore, have a strong interest in emission control measures
that states and the EPA incorporate into SIPs and FIPs with regard to
regional haze, and also have an interest in the state response to any
certification of reasonably attributable visibility impairment made by
an FLM.\36\ The agency has a tribal consultation policy that covers any
plan that the EPA would promulgate that may affect tribal interests.
This consultation policy applies to situations where a potentially
affected source is located on tribal land, as well as situations where
a SIP or FIP concerns a source that is located on state land and may
affect tribal land or other lands that involve tribal interests. In
addition, the EPA has and will continue to consider any tribal comments
on any proposed action on a SIP or FIP.
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\36\ Like the EPA, the Department of the Interior and the U.S.
Forest Service in the U.S. Department of Agriculture have strong
tribal consultation policies. See: http://www.epa.gov/tribal/consultation/index.htm; http://www.fs.fed.us/spf/tribalrelations/authorities.shtml, and https://www.doi.gov/tribes/Tribal-Consultation-Policy.
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In the first implementation period for regional haze SIPs, the
partnerships within the RPOs included strong relationships between the
states and the tribes, and the EPA encourages states to continue to
invest in those relationships (including consulting with tribes),
particularly with respect to tribes located near Class I areas. States
should continue working directly with tribes on their SIPs and their
response to any certification of reasonably attributable visibility
impairment made by an FLM. It is preferable for states to address
tribal concerns during their planning process rather than the EPA
addressing such concerns in its subsequent rulemaking process. During
the development of this rulemaking, the EPA was asked by the
[[Page 3087]]
National Tribal Air Association to adopt a requirement that states
formally consult with tribes during the development of their regional
haze SIPs. The CAA does not explicitly authorize the EPA to impose such
a requirement on the states. While we recognize the value of dialogue
between state and tribal representatives, we did not propose to require
it.
D. Air Permitting
One part of the visibility protection program, 40 CFR 51.307, New
Source Review (NSR), was established in 1980 with the rationale that
while most new sources that may impair visibility were already subject
to review under the Prevention of Significant Deterioration provisions
(part C of Title I of the CAA), additional regulations would ``ensure
that certain sources exempt from the PSD regulations because of
geographic criteria will be adequately reviewed for their potential
impact on visibility in the mandatory Class I Federal area.'' \37\ The
EPA explained at proposal that this was necessary because the PSD
regulations did not call for the review of major emitting facilities
(or major modifications) located in nonattainment areas,\38\ and that
it was appropriate to ``clarify certain procedural relationships
between the FLM and the state in the review of new source impacts on
visibility in Federal class I areas.'' \39\ The EPA envisioned that
state and FLM consultation would commence with the state notifying the
FLM of a potential new source, and that consultation would continue
throughout the permitting process. We proposed to revise 40 CFR 51.307
only as needed to maintain consistency with revisions to other sections
of 40 CFR part 50 subpart P.
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\37\ 45 FR 80084 (December 2, 1980).
\38\ In 1978, PSD rules were put in place that required
permitting agencies to interact with FLMs and for air quality
related values (AQRVs) to be taken into consideration in the PSD
permitting process. 43 FR 26380 (June 19, 1978). Those PSD rules did
not cover sources in nonattainment areas, and while there were EPA
rules for nonattainment NSR in existence, they did not require
consideration of Class I areas. In 1979, 40 CFR part 51, appendix S
established rules for nonattainment permitting, but they did not
(and still do not) require consideration of visibility or FLM
notification. (The same is also true of a more recent addition, 40
CFR 51.165. Where applicable to nonattainment areas, this rule does
not require Class I reviews. While 40 CFR 51.165(b) requires that
sources located in attainment areas cannot cause or contribute to a
NAAQS violation anywhere, this does not cover AQRVs in Class I
areas.) As a result, in 1980, the EPA added requirements to 40 CFR
51.307 for notification of FLMs of pending permits for new sources
in nonattainment areas.
\39\ 45 FR 34765 (May 22, 1980).
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IV. Final Rule Revisions
The EPA is finalizing revisions to the agency's visibility
regulations that are intended to build upon the progress achieved by
the visibility program over the last decade while streamlining certain
administrative requirements that are unnecessarily burdensome. The EPA
gained a substantial amount of knowledge during the first regional haze
implementation period and learned what aspects of the program work well
and what aspects could benefit from modification. The EPA received
information and perspectives from air agencies and FLMs during this
period that were invaluable in developing the proposal. We also
received comments from a wide variety of other stakeholders during the
public comment process, including groups of states, FLMs, industry and
industry representatives, nongovernmental organizations, and others. We
considered all timely comments submitted on the proposal and address
many of the most significant comments in this section. We are also
providing a separate response-to-comments (RTC) document in the docket
for this rulemaking. Between this preamble and the RTC document, we
have responded to all significant comments received on this rulemaking.
A. Ongoing Litigation in Texas v. EPA
A number of state and industry stakeholders submitted comments
regarding the ongoing litigation in the Fifth Circuit Court of Appeals
over the EPA's January 2016 final action that partially approved and
partially disapproved the Oklahoma and Texas regional haze SIPs for the
first implementation period and promulgated partial FIPs for each
state.\40\ These commenters asserted that the Fifth Circuit's decision
granting a stay \41\ of the Texas FIP's reasonable progress emission
limits undermined our proposed revisions to the visibility regulations.
Some commenters also suggested that we must suspend our rulemaking
revising the visibility regulations until after the Fifth Circuit has
issued a decision on the merits.
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\40\ 81 FR 295 (January 5, 2016).
\41\ Texas v. EPA, 2016 U.S. App. LEXIS 13058 (5th Cir. July 15,
2016).
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We disagree that the Fifth Circuit's recent stay decision in Texas
v. EPA dictates the lawfulness or timeliness of this rulemaking. First,
as the commenters have noted, the Fifth Circuit decision was not a
final decision on the merits of our action on the Oklahoma and Texas
regional haze SIPs; instead, it was a preliminary decision issued by a
panel of Fifth Circuit judges reviewing motions to stay the EPA's FIP,
otherwise referred to as a ``motions panel.'' That panel expressly
noted that its ``determination of Petitioners' likelihood of success on
the merits is for the purposes of the stay only and does not bind the
merits panel.'' \42\ Second, and more importantly, the Fifth Circuit's
evaluation of the EPA's FIP was based on the existing visibility
regulations at 40 CFR 51.308(d). In this rulemaking, we are
promulgating new regulations at 40 CFR 51.308(f) that will govern the
second and future implementation periods. Under CAA section 307(b), the
D.C. Circuit Court of Appeals is the exclusive venue for judicial
review of these regulations. Consequently, the preliminary views of
another circuit on the lawfulness of a FIP issued in the first
implementation period under our existing regulations at 40 CFR
51.308(d) are not germane to this rulemaking. Third, portions of the
stay decision indicate a fundamental misunderstanding of aspects of the
visibility program and the EPA's action on the Oklahoma and Texas
regional haze SIPs. For example, the decision on several occasions
conflated the BART and reasonable progress requirements of the RHR,
even though the FIP solely concerned the latter.\43\ Indeed, we
explicitly delayed final action in promulgating a FIP to address the
BART requirements for EGUs in Texas in light of the D.C. Circuit's
decision to remand several of the Cross-State Air Pollution Rule's
(CSAPR) emissions budgets.\44\
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\42\ Id. at *42 n.29.
\43\ See, e.g., id. at *8 (SIPs must ``list the best available
retrofit technology (`BART') that emission sources in the state will
have to adopt to achieve the visibility goals''); id. at *9 (``BART
is the only portion of the implementation plan that is enforced
against emission sources in a state.''); id. at *42 (asserting that
``the BART requirements'' are ``the portion of the Final Rule
imposing injury on Petitioners'').
\44\ 81 FR 301-02.
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While the decision in Texas v. EPA does not dictate the outcome of
this rulemaking, the decision has created some confusion regarding
certain aspects of the visibility program, including (1) whether states
can or must consider the four reasonable progress factors on a source-
specific basis; (2) the scope of the consultation requirements; and (3)
whether a state's long-term strategy can contain measures that cannot
be fully implemented by the end of an implementation period.
Consequently, we believe that it is appropriate to address each of
these issues at this time to explain how it was treated under the
existing regulations during the first implementation period and whether
it will be treated any
[[Page 3088]]
differently (and if so how) under the new regulations governing future
implementation periods.
1. Source-Specific Analysis
In Texas v. EPA, the Fifth Circuit explained that neither the RHR
nor the CAA requires a state to conduct a source-specific four-factor
analysis.\45\ Several commenters cited this aspect of the Fifth
Circuit's decision to argue that the EPA's proposal could not require
states to conduct source-specific four-factor analyses and that, while
states could conduct such analyses at their discretion, a state's
decision not to do so could not form the basis of the EPA's disapproval
of a SIP. Other commenters argued that proposed 40 CFR 51.308(f)(3)(ii)
would unlawfully force states to conduct source-specific four-factor
analyses if a state's RPGs provide for a slower rate of improvement in
visibility than the URP. Several commenters asked us to clarify our
position on these issues.
---------------------------------------------------------------------------
\45\ Id. at *45-51.
---------------------------------------------------------------------------
Neither the 1999 RHR nor the revised regulations in this rulemaking
require states to conduct four-factor analyses on a source-specific
basis. CAA section 169A(b)(2) requires states to include in their SIPs
``emission limits, schedules of compliance and other measures as may be
necessary to make reasonable progress.'' While these emission limits
must apply to individual sources or units, section 169A(g)(1) does not
explicitly require states to consider the four factors on a source-
specific basis when determining what amount of emission reductions (and
corresponding visibility improvement) constitutes ``reasonable
progress.'' Unlike section 169A(g)(2), which requires states to
consider ``any existing control technology in use at the source'' and
``the remaining useful life of the source'' when determining BART,
section 169A(g)(1) refers to the four factors more generally. For
example, with respect to remaining useful life, section 169A(g)(1)
refers not to ``the source,'' but rather ``any existing source subject
to such requirements.'' Thus, the EPA has consistently interpreted the
CAA to provide states with the flexibility to conduct four-factor
analyses for specific sources, groups of sources or even entire source
categories, depending on state policy preferences and the specific
circumstances of each state. This is the case under the 1999 RHR and
continues to be the case under these final revisions. Contrary to the
arguments in some comments, 40 CFR 51.308(f)(3)(ii) explicitly refers
to ``sources or groups of sources.'' Similarly, 40 CFR 51.308(f)(2)(i)
also refers to ``major or minor stationary sources or group of sources,
mobile sources, and area sources.''
We also note that the stay decision in Texas v. EPA mistakenly
indicated that the EPA disapproved the Texas SIP for failing to
evaluate the four factors on a source-specific basis. As we explained
in the January 2016 final rule, we disapproved Texas's four-factor
analysis because the set of sources and controls that Texas analyzed
was both over-inclusive and under-inclusive, not because the state
failed to conduct a source-specific analysis.\46\ Texas's analysis was
over-inclusive because it included controls on sources that served only
to increase total costs with little corresponding visibility benefit,
and under-inclusive because it did not include scrubber upgrades that
would achieve highly cost-effective emission reductions that would lead
to significant visibility improvements. While these final revisions to
the RHR continue to provide states with considerable flexibility in
evaluating the four reasonable-progress factors, we expect states to
exercise reasoned judgment when choosing which sources, groups of
sources or source categories to analyze. Consistent with CAA section
169A(g)(1) and our action on the Texas SIP, a state's reasonable
progress analysis must consider a meaningful set of sources and
controls that impact visibility. If a state's analysis fails to do so,
for example, by arbitrarily including costly controls at sources that
do not meaningfully impact visibility or failing to include cost-
effective controls at sources with significant visibility impacts, then
the EPA has the authority to disapprove the state's unreasoned analysis
and promulgate a FIP.
---------------------------------------------------------------------------
\46\ 81 FR 313-14.
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2. Interstate Consultation
In the Texas v. EPA stay decision, the Fifth Circuit explained that
neither the RHR nor the CAA explicitly require upwind states to provide
downwind states with source-specific emission control analyses.\47\
Consistent with Congress's focus on interstate cooperation under
section 169B, the 1999 RHR required states to consult with one another
when developing their RPGs and long-term strategies, develop
``coordinated emission management strategies'' and document any
disagreements regarding their goals and strategies.\48\ We agree with
the Fifth Circuit that the 1999 RHR did not require upwind states to
provide downwind states with a specific type of four-factor analysis
during the consultation process; the four-factor analysis that the
upwind state did could be based on a source-specific or aggregate
approach, for example. The consultation provisions were intended to
foster and facilitate regional solutions to what is, by definition, a
regional problem, not to mandate specific outcomes. The final revisions
largely preserve the existing consultation provisions and similarly do
not require upwind states to provide downwind states with any specific
type of analysis, or vice versa. Nevertheless, to develop coordinated
emission management strategies, each state must make decisions with
respect to its own long-term strategy with knowledge of what other
states are including in their strategies and why. In other words,
states must exchange their four-factor analyses and the associated
technical information that was developed in the course of devising
their long-term strategies. This information includes modeling,
monitoring and emissions data and cost and feasibility studies. To the
extent that one state does not provide another other state with these
analyses and information, or to the extent that the analyses or
information are materially deficient, the latter state should document
this fact so that the EPA can assess whether the former state has
failed to meaningfully comply with the consultation requirements.
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\47\ Id. at *51-53.
\48\ 40 CFR 51.308(d)(1)(iv); (d)(3)(i).
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3. Timing of Control Requirements
Lastly, in Texas v. EPA, the Fifth Circuit's stay decision
suggested that it was likely that the EPA had exceeded its statutory
authority by imposing emission controls that go into effect after the
end of the implementation period.\49\ This preliminary assessment is
incorrect for several reasons.
---------------------------------------------------------------------------
\49\ Texas, 2016 U.S. App. LEXIS 13058 at *53-57.
---------------------------------------------------------------------------
First, we note that the decision did not cite to a provision of the
CAA to support the proposition that the EPA exceeded its statutory
authority. Indeed, the CAA includes no such constraint. Two provisions
are of particular relevance. Section 169A(b)(2)(B) requires SIPs to
include ``a long-term (ten to fifteen years) strategy for making
reasonable progress toward meeting the national goal.'' The phrase
``ten to fifteen years'' is ambiguous. It could mean that the long-term
strategy must be updated every 10 to 15 years or that the strategy must
be fully implemented within 10 to 15 years. Even under the latter
interpretation, courts have held that an agency does not lose authority
to regulate when a mandatory deadline
[[Page 3089]]
has passed; rather, the appropriate remedy is an order compelling
agency action.\50\ We therefore do not interpret this provision as
restricting the authority of states or the EPA to include control
measures in a SIP or FIP that cannot be fully implemented by the end of
a regulatory implementation period or as relaxing their obligation to
include such controls if they are otherwise necessary to make
reasonable progress. To do so would create an inappropriate incentive
for states to delay their SIP submittals in an effort to ``run out the
clock'' on the EPA's authority to issue a corrective FIP.
---------------------------------------------------------------------------
\50\ Oklahoma v. EPA, 723 F.3d 1201, 1223-24 (10th Cir. 2013)
(citing Brock v. Pierce Cty., 476 U.S. 253, 260 (1986).
---------------------------------------------------------------------------
Also, section 169A(g)(1) requires states to consider ``the time
necessary for compliance'' when determining what control measures are
necessary to make reasonable progress. This phrase is also ambiguous.
One possible interpretation of the phrase is that states need only
consider control measures that can be implemented within a certain
period of time. This interpretation is unreasonable, however, because
it would allow states to forever forgo cost-effective but time-
intensive emission reduction measures that could otherwise improve
visibility, which would thwart Congress's national goal. A more
reasonable interpretation of the phrase is that states must consider
the feasibility of the ``schedules of compliance'' referred to in
section 169A(b)(2) when determining when the emission reductions
necessary to make reasonable progress must be implemented. The
structure of section 169A also lends support to this interpretation.
When determining reasonable progress, states must consider three of the
same factors that they consider when determining BART. The only unique
reasonable progress factor relates to timing: ``the time necessary for
compliance.'' Congress had no reason to include a timing factor for
BART, however, because section 169A(b)(2)(A) already includes a
requirement that BART must be installed and operated ``as expeditiously
as practicable,'' which section 169A(g)(4) defines as no later than 5
years from the date of plan approval. With no similar requirement in
section 169(b)(2), it is reasonable to interpret that Congress intended
``the time necessary for compliance'' factor to serve an analogous
function to the ``expeditiously as practicable'' language, albeit with
more discretion left to the states.
Second, we note that the Fifth Circuit appeared to misunderstand a
provision in the 1999 RHR that it used to support its decision.
Specifically, the stay decision stated:
The Regional Haze Rule requires states to ``consider . . . the
emission reduction measures needed to achieve [the reasonable
progress goal] for the period covered by the implementation plan,''
and to impose ``enforceable emissions limitations, compliance
schedules, and other measures, as necessary to achieve the
reasonable progress goals.'' 40 CFR 51.308(d)(1)(i)(B), (d)(3)
(emphasis added). The Regional Haze Rule provides that each
implementation plan will cover a ten-year period; before the close
of each ten-year period, the state must submit a comprehensive
revision to cover the next ten-year period. 40 CFR 51.308(b), (f)
(first implementation plan due December 2007; first ``comprehensive
periodic revision'' due July 31, 2018, and every ten years
thereafter). The emissions controls included in a state
implementation plan, therefore, must be those designed to achieve
the reasonable progress goal for the period covered by the plan. 40
CFR 51.308(d)(1)(i)(B).\51\
---------------------------------------------------------------------------
\51\ Texas, 2016 U.S. APP. LEXIS 13058 at *53-54.
However, 40 CFR 51.308(d)(1)(i)(B) does not actually say that states
must consider the emission reductions measures needed to achieve ``the
reasonable progress goal'' for the period covered by the implementation
plan. Instead, it requires states to ``consider the uniform rate of
improvement in visibility and the emission reduction measures needed to
achieve it for the period covered by the implementation plan.'' \52\ In
essence, the provision requires a state to make a comparison between
its chosen control set and the specific set of control measures that
would be needed to achieve the URP by the end of the implementation
period. The provision does not dictate the date by which all of the
measures in a state's chosen control set must be implemented.
---------------------------------------------------------------------------
\52\ 40 CFR 51.308(d)(1)(i)(B) (emphases added).
---------------------------------------------------------------------------
Third, the stay decision did not discuss the EPA's 2007 reasonable
progress guidance, which specifically recognized that the time needed
for full implementation of a control measure might extend beyond the
end of the implementation period. In such situations, the EPA stated
that it may be appropriate for states to use the time necessary for
compliance factor ``to adjust the [RPG] to reflect the degree of
improvement in visibility achievable within the period of the first
SIP,'' \53\ which would prevent the state from falling short of its
goal. The 2007 guidance did not state that the CAA or the 1999 RHR
prohibited states from requiring the control measure.
---------------------------------------------------------------------------
\53\ Guidance for Setting Reasonable Progress Goals Under the
Regional Haze Program, revised, at 5-2 (June 1, 2007).
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In the proposal for this rulemaking, which was promulgated before
the Fifth Circuit's stay decision, we did not address this issue. At
that time, we thought that it was clear that neither states nor the EPA
lose the authority to require emissions limits or other measures that
are necessary to make reasonable progress if those limits or measures
cannot be fully implemented by the end of the implementation period and
incorporated into the RPGs. For the reasons provided previously, we
continue to believe that this is the case.
Therefore, we are modifying 40 CFR 51.308(f)(2)(i) to explicitly
provide that, when considering the time necessary for compliance, a
state may not reject a control measure because it cannot be installed
and become operational until after the end of the implementation
period. As discussed previously, the state should instead consider that
fact in determining the appropriate compliance deadline for the
measure. Of course, any emission reductions that will not occur until
after the end of the implementation period should not be reflected in
the RPGs.
In addition, to avoid any future confusion with respect to this
issue, we are making a small modification to 40 CFR 51.308(f)(3)(i) in
these final revisions. This final provision now reads:
A State in which a mandatory Class I Federal area is located
must establish reasonable progress goals (expressed in deciviews)
that reflect the visibility conditions that are projected to be
achieved by the end of the applicable implementation period as a
result of those enforceable emissions limitations, compliance
schedules, and other measures required under paragraph (f)(2) that
can be fully implemented by the end of the applicable implementation
period, as well as the implementation of other requirements of the
CAA.
This modification makes it clear that a state's long-term strategy can
include emission limits and measures beyond those reflected in the
state's RPGs. The RPGs are unenforceable tracking metrics. They are not
meant to dictate or limit the content of a state's long-term strategy
for making reasonable progress towards Congress's national goal. This
change is also consistent with our actions promulgating FIPs near the
end of the first implementation period, which by necessity included
reasonable progress emission limits with compliance deadlines after
2018.\54\
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\54\ 81 FR 296 (January 5, 2016) (Texas); 81 FR 68319 (October
4, 2016) (Arkansas).
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[[Page 3090]]
B. Cooperative Federalism
Some commenters invoked principles of cooperative federalism to
argue that the proposed revisions were too prescriptive and thus
undermined the discretion afforded to states by the CAA. As support for
this argument, the commenters pointed almost exclusively to the Fifth
Circuit's stay decision in Texas v. EPA, discussed previously, in which
a motions panel of the Fifth Circuit described EPA's role in reviewing
SIPs as ``ministerial.'' \55\ Commenters also suggest the proposed
revisions are inconsistent with the principles announced in American
Corn Growers Association v. EPA, 291 F.3d 1 (D.C. Cir. 2002) (``Corn
Growers'').
---------------------------------------------------------------------------
\55\ Texas, 206 U.S. App. LEXIS 13058 at *5.
---------------------------------------------------------------------------
As a preliminary matter, the commenters' reliance on Texas v. EPA
is misplaced. The view expressed in the stay decision, that the EPA has
only a ``ministerial function'' in reviewing SIPs, is at odds with the
great majority of courts that have considered this issue in the context
of the regional haze program. Under the principles of cooperative
federalism, the CAA vests state air agencies with substantial
discretion as to how to achieve Congress's air-quality goals and
standards, but states exercise this authority with federal oversight.
As the Tenth Circuit explained in Oklahoma v. EPA, ``the EPA reviews
all SIPs to ensure that they comply with the [CAA],'' and ``[t]he EPA
may not approve any plan that `would interfere with any applicable
requirement' of [the Act].'' \56\ Relying on Oklahoma, the Eighth
Circuit in North Dakota v. EPA held that the ``EPA is left with more
than the ministerial task of routinely approving SIP submissions,''
\57\ and that the ``EPA's review of a SIP extends not only to whether
the state considered the necessary factors in its determination, but
also to whether the determination is one that is reasonably moored to
the CAA's provisions.'' \58\ Similarly, in Arizona v. EPA, the Ninth
Circuit held that the ``EPA is not limited to the `ministerial' role of
verifying whether a determination was made; it must `review the
substantive content of the . . . determination,' '' \59\ and that the
``EPA has a substantive role in deciding whether state SIPs are
compliant with the Act and its implementing regulations.'' \60\ In
accord with these principles, the Third Circuit recently remanded the
EPA's approval of a state's regional haze SIP where the EPA deferred
too readily to state conclusions without providing a sufficient
explanation for overlooking problems in the SIP.\61\ Thus, the view
expressed by the Fifth Circuit motions panel in the stay decision is an
outlier.
---------------------------------------------------------------------------
\56\ Oklahoma v. EPA, 723 F.3d 1201, 1204 (10th Cir. 2013).
\57\ North Dakota v. EPA, 730 F.3d 750, 761 (8th Cir. 2013).
\58\ Id. at 766.
\59\ Ariz. el rel. Darwin v. EPA, 815 F.3d 519, 531 (9th Cir.
2016).
\60\ Id. at 532 (emphasis in original).
\61\ Nat'l Parks Conservation Ass'n v. EPA, 803 F.3d 151, 167
(3d Cir. 2015).
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More importantly, however, the situation in Texas v. EPA is
inapposite to the situation here. In Texas, we partially disapproved an
individual state's implementation plan and promulgated a FIP to fill
the gap. In this rulemaking, we are not expressing views on any state's
implementation plan, so it is simply premature to suggest that we are
affording insufficient deference to state choices. Rather, we are
promulgating revisions to the existing visibility regulations that will
guide future SIP development. In 1977, Congress expressly required the
EPA to promulgate regulations ``to assure (A) reasonable progress
toward meeting the national goal . . . and (B) compliance with the
requirements of [section 169A].'' \62\ Congress also required the EPA's
regulations to ``provide guidelines to the States'' \63\ regarding
``methods for identifying, characterizing, determining, quantifying,
and measuring visibility impairment;'' \64\ ``modeling techniques for
determining the extent to which manmade air pollution may reasonably be
anticipated to cause or contribute to such impairment;'' \65\ and
``methods for preventing and remedying such manmade air pollution and
resulting visibility impairment.'' \66\ In 1990, Congress reiterated
this statutory obligation, tasking the EPA again with carrying out its
``regulatory responsibilities under [section 169A], including criteria
for measuring `reasonable progress' toward the national goal.'' \67\
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\62\ CAA section 169A(b).
\63\ CAA section 169A(b)(1).
\64\ CAA section 169A(a)(3)(A).
\65\ CAA section 169A(a)(3)(B).
\66\ CAA section 169A(a)(3)(C).
\67\ CAA section 169B(e)(1).
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These final revisions to the 1999 RHR and 1980 reasonably
attributable visibility impairment regulations are fully consistent
with this extensive grant of rulemaking authority. The revisions will
ensure that the steady environmental progress achieved during the first
implementation period continues, while streamlining several
administrative aspects of the program to reduce burdens on states. The
revisions require states to consider certain factors and provide
certain information as they develop their regional haze SIPs, but they
do not mandate specific outcomes. Where applicable, the revisions also
provide states with significant flexibility to take state-specific
facts and circumstances into account when developing their long-term
strategies.\68\ Thus, contrary to the commenters' assertions, the final
revisions are fully consistent with the CAA's cooperative-federalism
framework and the decision in Corn Growers, which addressed EPA's
authority to require states to consider the visibility benefits of BART
controls in a specific fashion, a set of facts not present in this
rulemaking, is not on point.
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\68\ See, e.g., 81 FR at 26954/1 (explaining that states have
the flexibility to justify and use values for natural visibility
conditions that include anthropogenic international emissions).
---------------------------------------------------------------------------
C. Clarifications To Reflect the EPA's Long-Standing Interpretation of
the Relationship Between Long-Term Strategies and Reasonable Progress
Goals
1. Summary of Proposal
Under the 1999 RHR, states were required to revise their regional
haze SIPs every 10 years by evaluating and reassessing all of the
elements required under 40 CFR 51.308(d).\69\ Over the course of the
first implementation period, however, we realized that some of the
requirements in 40 CFR 51.308(d) were creating confusion regarding the
relationship between RPGs and the long-term strategy and the respective
obligations of upwind and downwind states. We discussed this issue at
length in our December 14, 2014, proposed action on the Texas and
Oklahoma regional haze SIPs,\70\ and incorporated that discussion by
reference in the proposal for this rulemaking.\71\
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\69\ 40 CFR 51.308(f).
\70\ 79 FR 74823-30 (December 14, 2014).
\71\ 81 FR 26949, 26952.
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For example, under 40 CFR 51.308(d), states were required to (1)
develop RPGs, (2) calculate baseline and natural visibility conditions,
(3) establish long-term strategies and (4) adopt monitoring strategies
and other measures to track future progress and ensure compliance. The
sequencing of these requirements in the rule text was problematic
because it did not accord with the way the planning process works in
practice. For example, states must calculate baseline and natural
visibility conditions before they can compare their RPGs to the URP.
Similarly, states must evaluate the control measures that are necessary
to
[[Page 3091]]
make reasonable progress using the four factors and develop their long-
term strategies before they can predict future emission reductions and
conduct the regional-scale modeling used to establish RPGs.
Similarly, problematic was the confusing way in which 40 CFR
51.308(d) addressed the obligations of upwind and downwind states.
Under 40 CFR 51.308(d)(1)(i)(A), downwind states were explicitly
required to consider the four factors when developing their RPGs.
Upwind states, on the other hand, were implicitly required to consider
the four factors only when developing their long-term strategies.
Section 40 CFR 51.308(d)(3)(iii) required states to ``document the
technical basis, including modeling, monitoring and emissions
information, on which the State is relying to determine its
apportionment of emission reduction obligations necessary for achieving
reasonable progress in each mandatory Class I Federal area it
affects.'' As we explained in our December 14, 2014, proposed action on
the Texas and Oklahoma regional haze SIPs, the CAA requires states to
determine reasonable progress by considering the four factors, so the
determination of the proper apportionment of emission reductions
necessarily required a state to evaluate the four factors in reaching
its decision. This structure made little sense because both upwind and
downwind states need to conduct their four-factor analyses, determine
the proper apportionment of emission reduction obligations, and develop
their long-term strategies before the downwind state will have
sufficient information to establish RPGs.
Recognizing that the sequence and structure of the existing
regulations was confusing, we proposed to amend 40 CFR 51.308(f), which
governs periodic SIP revisions for future implementation periods, to
codify our long-standing interpretation of the way in which the
existing regulations were intended to operate. Specifically, we
proposed to eliminate the cross-reference in 40 CFR 51.308(f) to 40 CFR
51.308(d) and to adopt new regulatory language that tracked the actual
planning sequence, while clarifying the obligations of upwind and
downwind states.\72\ Under the proposal, states would (1) calculate
baseline, current and natural visibility conditions, progress to date
and the URP; (2) develop a long-term strategy for addressing regional
haze by evaluating the four factors to determine what emission limits
and other measures are necessary to make reasonable progress; (3)
conduct regional-scale modeling of projected future emissions under the
long-term strategies to establish RPGs and then compare those goals to
the URP line; \73\ and (4) adopt a monitoring strategy and other
measures to track future progress and ensure compliance.
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\72\ 81 FR 26952.
\73\ This step applies only to downwind states that have
mandatory Class I Federal areas.
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2. Comments and Responses
In response to our proposed structural revisions to 40 CFR
51.308(f), we received a number of significant comments. Some
commenters contended that the proposed revisions were contrary to the
structure and plain language of the CAA. They explained the position
that states must first make a ``determination'' as to what constitutes
``reasonable progress'' by analyzing the four statutory factors on a
source-category basis. Then, only after ``reasonable progress'' is
quantified as a benchmark or goal do states have to consider what
emission limits, schedules of compliance and other measures at
individual sources are actually necessary to make reasonable progress.
The commenters further explained that this reading of the statute was
supported by the current regulations, the preamble to the 1999 RHR and
the EPA's prior guidance. Based on their reading, these commenters
concluded that proposed 40 CFR 51.308(f)(2), which would govern long-
term strategies, and proposed 40 CFR 51.308(f)(3), which would govern
RPGs, were contrary to the CAA because states must first determine
reasonable progress independently from the development of the long-term
strategy, not the other way around.
We disagree. Our proposed structural revisions to 40 CFR 51.308(f)
are consistent with the CAA. Section 169A(b)(2) requires states to
submit SIP revisions that contain ``emission limits, schedules of
compliance and other measures as necessary to make reasonable progress
toward meeting the national goal'' and ``a long-term (ten to fifteen
years) strategy for making reasonable progress.'' Section 169A(g)(1)
states that, in determining reasonable progress, states must consider
four factors: ``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.'' Under 40 CFR 51.308(f)(2), both as
proposed and as we are finalizing it, states must similarly submit a
``long-term strategy'' that includes ``enforceable emissions
limitations, compliance schedules, and other measures that are
necessary to make reasonable progress,'' and determine those limits,
schedules, and measures by considering the four statutory factors.
We disagree that the CAA requires EPA's regulations to allow states
to calculate the visibility improvement that represents ``reasonable
progress'' prior to or independently from the analysis of control
measures. The commenters do not explain how states could consider
costs, time schedules, energy and environmental impacts or the
remaining useful lives of sources other than by assessing the potential
impacts of control measures on those sources. Indeed, use of the terms
``compliance'' and ``subject to such requirements'' in section
169A(g)(1) strongly indicates that Congress intended the relevant
determination to be the requirements with which sources would have to
comply in order to satisfy the CAA's reasonable progress mandate.
Moreover, the reasonable progress factors share obvious similarities
with the BART factors, which are indisputably used to determine
appropriate control measures for sources.\74\
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\74\ Compare CAA section 169A(g)(1) with CAA section 169A(g)(2).
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Finally, we note that RPGs are not a concept that is included in
the CAA itself. Rather, they are a regulatory construct that we
developed to satisfy a separate statutory mandate in section
169B(e)(1), which required our regulations to include ``criteria for
measuring `reasonable progress' toward the national goal.'' \75\ Under
40 CFR 51.308(f)(3)(ii), RPGs continue to serve this important
analytical function. They measure the progress that is projected to be
achieved by the control measures states have determined are necessary
to make reasonable progress based on a four-factor analysis. Consistent
with the 1999 RHR, the RPGs are unenforceable,\76\ but they create a
benchmark that allows for analytical
[[Page 3092]]
comparisons to the URP \77\ and mid-implementation-period course
corrections if necessary.\78\
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\75\ See 64 FR 35731 (``The final rule calls for States to
establish `reasonable progress goals,' expressed in deciviews, for
each Class I area for the purpose of improving visibility on the
haziest days and not allowing degradation on the clearest days over
the period of each implementation plan or revision. The EPA believes
that requiring States to establish such goals is consistent with
section 169A of the CAA, which gives EPA broad authority to
establish regulations to `ensure reasonable progress,' and with
section 169B of the CAA, which calls for EPA to establish `criteria
for measuring reasonable progress' toward the national goal.'').
\76\ Compare 40 CFR 51.308(f)(3)(iii) with 40 CFR 51.308(d)(v).
\77\ Compare 40 CFR 51.308(f)(3)(ii) with 40 CFR
51.308(d)(1)(ii).
\78\ 40 CFR 51.308(g)(7), (h).
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Other commenters stated that the proposed revisions to 40 CFR
51.308(f) were significant and unexplained departures from the EPA's
prevailing interpretation of the reasonable progress factors and long-
term strategy during the first implementation period. Several
commenters contended that the revisions constituted an arbitrary and
capricious change of position under the Supreme Court's recent decision
in Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016). For
example, one commenter contended that it was paradoxical for the long-
term strategy to include the measures necessary to achieve the RPGs,
while the RPGs were the predicted visibility outcome of implementing
the emission controls in the long-term strategy. The commenter
explained that this was inconsistent with the 1999 RHR, which made no
mention of RPGs being set based on the predicted visibility improvement
resulting from emission controls.
Another commenter contended that the EPA's proposed approach puts
the cart before the horse because it does not allow states and RPOs to
set visibility targets and then select the appropriate emission
reduction measures to reach those targets. This would result in
inefficiencies, according to the commenter, because states may have to
secure additional emission reductions if their chosen strategies result
in RPGs that fall short of the URP. The commenter explained that states
would need more guidance regarding what types of sources and source
categories to consider when seeking emission reductions. The commenter
requested that the EPA develop a more logical process whereby states
and RPOs would first develop visibility goals, allocate those goals
among the states and then give states latitude to identify and assure
emission reductions to achieve those visibility goals by using the four
factors.
We disagree with these comments. They reflect a misunderstanding of
the regional haze planning process generally followed by states. During
the first implementation period, the RPOs conducted the regional-scale
modeling used to establish their member states' RPGs. To conduct this
modeling, the RPOs relied on 2018 emissions projections that reflected
future application of reasonable controls for sources, including
existing federal and state measures (the Clean Air Interstate Rule
(CAIR), mobile source measures, etc.), anticipated BART controls and
anticipated reasonable progress measures. The proposed and final
revisions to 40 CFR 51.308(f) are fully consistent with this process.
Under 40 CFR 51.308(f)(ii), states must develop their long-term
strategies by identifying reasonable progress measures using the four
factors and engaging in interstate consultation. Once their strategies
have been developed, states with Class I areas must establish RPGs that
reflect existing federal and state measures (the CSAPR, the Mercury and
Air Toxics Standards, BART, mobile source measures, etc.) and the
reasonable progress measures in the long-term strategy.
In contrast, the commenters have proposed a process in which states
would either model their RPGs without fully developed emissions
information or select their goals arbitrarily without any modeling at
all. We rejected a similar approach in the 1999 RHR. In the 1997
proposal for the RHR, we proposed to establish presumptive reasonable
progress targets of 1.0 deciview of improvement for the most impaired
days and no degradation for the least impaired days and to require
states to develop emission reduction strategies to achieve the
reasonable progress targets.\79\ In the 1999 RHR, we revised the
proposal to eliminate the presumptive targets and instead required
states ``to determine the rate of progress for remedying existing
impairment that is reasonable, taking into consideration the statutory
factors.'' \80\ Importantly, we explained that, ``[i]n considering
whether reasonable progress will continue to be maintained, States will
need to consider during each new SIP revision cycle whether additional
control measures for improving visibility may be needed to make
reasonable progress based on the statutory factors.'' \81\ Thus, the
1999 RHR was clear that states must determine what control measures are
necessary to make reasonable progress by considering the four factors
and then use this information to determine the rate of progress that is
reasonable for each mandatory Class I Federal area.
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\79\ 62 FR 41146-47 (July 31, 1997).
\80\ 64 FR 35731 (July 1, 1999).
\81\ Id. at 35733.
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In 2007, we provided guidance to the states on setting RPGs. There,
we explained that the guidance's discussion of the four factors was
``largely aimed at helping States apply these factors in considering
measures for point sources,'' \82\ but that the factors could
potentially be applied to sources other than point sources as well. We
also described the intricate relationship between RPGs, BART, and the
long-term strategy:
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\82\ Guidance for Setting Reasonable Progress Goals Under the
Regional Haze Program, at 1-3 (2007) (emphasis added).
The RPGs, the long-term strategy, and BART (or alternative
measures in lieu of BART) are the three main elements of the
regional haze SIPs that States are required to submit by December
17, 2007. The long-term strategy and BART emissions limitations or
other alternative measures, including cap-and-trade programs or
other economic incentive approaches, are inherently related to the
RPG. The long-term strategy is the compilation of ``enforceable
emissions limitations, compliance schedules, and other measures as
necessary to achieve the [RPGs],'' and is the means through which
the State ensures that its RPG will be met. BART emissions limits
(or alternative measures in lieu of BART, such as the Clean Air
Interstate Rule (CAIR)) are one set of measures that must be
included in the SIP to ensure that an area makes reasonable progress
toward the national goal, and the visibility improvement resulting
from BART (or a BART alternative) is included in the development of
the RPG.\83\
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\83\ Id. at 1-4.
We note that the discussion previously refers to the long-term
strategy as including the measures ``necessary to achieve the RPG,''
and that several provisions in the 1999 RHR were worded similarly.\84\
We believe this type of language may have caused confusion among some
of the commenters. This language does not mean that we intended states
to develop their RPGs first and later adopt measures in the long-term
strategy to achieve those RPGs. Rather, it merely acknowledges the fact
that, because we intended states to develop their RPGs by modeling,
among other things, the measures in the long-term strategy, the
measures in the strategy are necessary to achieve the RPGs. For
example, BART is one of the measures in the long-term strategy, and the
discussion previously clearly states that ``the visibility improvement
resulting from BART (or a BART alternative) is included in the
development of the RPG.'' We proposed the structural revisions to 40
CFR 51.308(f) in part to eliminate this cart-before-the-horse
ambiguity.
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\84\ See, e.g., 40 CFR 51.308(d)(3), (d)(3)(ii), (d)(3)(v)(C).
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Later, the 2007 guidance clearly describes the goal-setting process
as starting with the evaluation of control measures. First, we
recommended that states ``[i]dentify the key pollutants and sources
and/or source categories that are contributing to visibility impairment
at
[[Page 3093]]
each Class I area.'' \85\ Second, we recommended that states
``[i]dentify the control measures and associated emission reductions
that are expected to result from compliance with existing rules and
other available measures for the sources and source categories that
contribute significantly to visibility impairment.'' \86\ Third, and
most importantly, we recommended that states ``[d]etermine what
additional control measures would be reasonable based on the statutory
factors and other relevant factors for the sources and/or source
categories you have identified.'' \87\ Finally, we recommended that
states ``[e]stimate through the use of air quality models the
improvement in visibility that would result from implementation of the
control measures you have found to be reasonable and compare this to
the uniform rate of progress.'' \88\ In sum, ``[t]he improvement in
visibility resulting from implementation of the measures you have found
to be reasonable . . . is the amount of progress that represents your
RPG.'' \89\ This is the process that states used during the first
implementation period, see the RTC at 2.2.1.2.6 for examples, and it is
the same process that the states must follow under the final revisions
to 40 CFR 51.308(f).
---------------------------------------------------------------------------
\85\ Id. at 203.
\86\ Id. (emphasis in the original).
\87\ Id.
\88\ Id.
\89\ Id. at 2-4 (emphasis added).
---------------------------------------------------------------------------
While the guidance went on to note that states could attempt to
``back out'' the measures necessary to achieve the URP by modeling
first and then considering the four factors to select appropriate
measures,\90\ few if any states chose this approach, likely because it
was a more complicated way to achieve the same result as the
recommended approach. Under either approach, states still had to use
the four factors to justify whether the control measures necessary to
achieve the URP were reasonable, whether achieving the URP was
unreasonable and some of lesser set of measures was reasonable, or
whether additional measures were reasonable. Moreover, the ``back out''
approach specified a concrete visibility target as its basis: The
visibility that would be achieved by the URP at the end of the
implementation period. The approach would be arbitrary and unworkable
as a step in making the justifications just mentioned if the visibility
target were chosen at random, as some commenters have requested. In
sum, the EPA's proposed structural revisions are completely consistent
with the 1999 RHR, our 2007 guidance and the planning process actually
used by states during the first implementation period. For this reason,
the Supreme Court's decision in Encino Motorcars is inapplicable.
---------------------------------------------------------------------------
\90\ Id. at 2-3 to 2-4.
---------------------------------------------------------------------------
Another commenter contended that the EPA's proposed revisions
failed to include a necessary step where states evaluate the control
measures identified as necessary to make reasonable progress in light
of the RPGs themselves. This commenter requested a mechanism whereby a
state could determine that some of the initially evaluated control
measures were unnecessary in light of the RPGs themselves. In
particular, this commenter suggested that a state should be able to
reject ``costly'' control measures if (1) the RPG for the most impaired
days is on or below the URP line or (2) the RPGs are not
``meaningfully'' different than current visibility conditions.
We disagree that the states should be able to reevaluate whether a
control measure is necessary to make reasonable progress based on the
RPGs. The CAA requires states to determine what emission limitations,
compliance schedules and other measures are necessary to make
reasonable progress by considering the four factors. The CAA does not
provide that states may then reject some control measures already
determined to be reasonable if, in the aggregate, the controls are
projected to result in too much or too little progress. Rather, the
rate of progress that will be achieved by the emission reductions
resulting from all reasonable control measures is, by definition, a
reasonable rate of progress.
In regards to the commenter's first suggestion, if a state has
reasonably selected a set of sources for analysis and has reasonably
considered the four factors in determining what additional control
measures are necessary to make reasonable progress, then the state's
analytical obligations are complete if the resulting RPG for the most
impaired days is below the URP line. The URP is not a safe harbor,
however, and states may not subsequently reject control measures that
they have already determined are reasonable. If a state's RPG for the
most impaired days is above the URP line, then the state has an
additional analytical obligation to ensure that no reasonable controls
were left off the table.
The commenter's second suggestion, that states should be able to
reject ``costly'' control measures if the RPG for the most impaired
days is not ``meaningfully'' different than current visibility
conditions, is counterintuitive and at odds with the purpose of the
visibility program. In this situation, the state should take a second
look to see whether more effective controls or additional measures are
available and reasonable. Whether the state takes this second look or
not, it may not abandon the controls it has already determined are
reasonable based on the four factors. Regional haze is visibility
impairment that is caused by the emission of air pollutants from
numerous sources located over a wide geographic area. At any given
Class I area, hundreds or even thousands of individual sources may
contribute to regional haze. Thus, it would not be appropriate for a
state to reject a control measure (or measures) because its effect on
the RPG is subjectively assessed as not ``meaningful.'' Also, for Class
I areas where visibility conditions are considerably worse than natural
conditions because of continuing anthropogenic impairment from numerous
sources, the logarithmic nature of the deciview index makes the effect
of a control measure on the value of the RPG less than its effect would
be if visibility conditions at the Class I area were better. Thus, if a
state could reject a control measure based on its individual effect on
the RPG, the state would be more likely to reject those measures that
are necessary to make reasonable progress at the dirtiest Class I
areas, which would thwart Congress' national goal.
One commenter contended that the proposed revisions would lead to
disagreements among states because states might set different RPGs
instead of working jointly toward the downwind state's goals. We
disagree. Only downwind states set RPGs for their mandatory Class I
Federal areas, so there is no situation in which there would be
different goals for the same area.
Another commenter contended that the proposed revisions would force
states to require controls even where visibility at a Class I area is
already equivalent to or better than the visibility that represents the
URP at the end of the implementation period. We agree that some states
may end up establishing RPGs that exceed the URP, but as we explained
previously in this document, the URP was never intended to be a safe
harbor. In the 1999 RHR, we explained that ``[i]f the State determines
that the amount of progress identified through the analysis is
reasonable based upon the statutory factors, the State should identify
this amount of progress as its reasonable progress goal for the first
long-term strategy, unless it determines that additional progress
beyond this
[[Page 3094]]
amount is also reasonable. If the State determines that additional
progress is reasonable based on the statutory factors, the State should
adopt that amount of progress as its goal for the first long-term
strategy.'' \91\ This approach is consistent with and advances the
ultimate goal of section 169A: Remedying existing and preventing future
visibility impairment. Congress required the EPA to promulgate
regulations requiring reasonable progress toward that goal, and it
would be antithetical to allow states to avoid implementing reasonable
measures until and unless that goal is achieved.
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\91\ 64 FR 35732.
---------------------------------------------------------------------------
Other commenters were supportive of the proposed structural
revisions intended to clarify the relationship between RPGs and long-
term strategies. They explained that by reorienting these provisions to
reflect the EPA's long-standing interpretation, the EPA was providing a
clearer blueprint for states to follow in future implementation
periods. These commenters also provided specific suggestions for how
the EPA could further revise the proposed regulatory text for 40 CFR
51.308(f). Among other things, these commenters requested that the EPA
include language in the regulations that would make it clear that a
state's long-term strategy can include emission limits and other
measures that cannot be installed by the end of an implementation
period. As discussed earlier in Section IV.A of this document, we are
modifying the language in 40 CFR 51.308(f)(2(i) and 51.308(f)(3)(i) to
make this point clear. We have reviewed the other suggestions made by
these commenters and do not believe that they are necessary, as
discussed more fully in the RTC document available in the docket for
this rulemaking.
We also received several comments regarding the obligations of
upwind and downwind states. Some commenters supported the revisions
that were intended to clarify that all states must conduct a four-
factor analysis to determine what control measures are necessary to
make reasonable progress at each mandatory Class I Federal area
affected by emissions from the state. They explained that any other
interpretation of the CAA's requirements would allow an upwind state to
continue impairing downwind visibility without consequence, regardless
of whether there were reasonable, cost-effective measures that would
improve downwind visibility. Other commenters argued that upwind states
should not have the same obligations as downwind states. One commenter
asserted that, under the proposal, all states would be subject to the
RHR for the very first time, regardless of whether they have a
mandatory Class I Federal area or not. Another commenter contended that
requiring upwind states to conduct four-factor analyses for downwind
Class I areas was a new requirement that was not part of the 1999 RHR.
This commenter acknowledged that upwind states must address downwind
Class I areas where their emissions ``may reasonably be anticipated to
cause or contribute to any impairment of visibility'' at the downwind
area, but suggested that the proposed revisions use the language ``may
affect'' instead. This commenter stated that the EPA's proposal did not
define or quantify what the term ``may affect'' means.
Section 169A(b)(2) states that the EPA's regulations must:
Require each applicable implementation plan for a State in which any
[mandatory Class I Federal] area . . . is located (or a for a State
the emissions from which may reasonably be anticipated to cause or
contribute to any impairment of visibility in any such area) to
contain such emission limits, schedules of compliance and other
measures as may be necessary to make reasonable progress toward
meeting the national goal.
Section 169A(g)(1) thus requires states to determine the measures
necessary to make reasonable progress by considering the four factors,
while section 169A(a)(1) defines Congress's national goal as preventing
future and remedying existing anthropogenic visibility impairment in
all Class I areas. Thus, Congress was clear that both downwind states
(i.e., ``a State in which any [mandatory Class I Federal] area . . . is
located) and upwind states (i.e., ``a State the emissions from which
may reasonably be anticipated to cause or contribute to any impairment
of visibility in any such area'') must revise their SIPs to include
measures that will make reasonable progress at all affected Class I
areas. Congress was also clear that states must determine the necessary
measures and rate of progress that are reasonable by considering the
four factors. Our proposed revisions to 40 CFR 51.308(f)(2) are in
accord with this congressional mandate.
The commenter who suggested that our proposed revisions are
expanding the scope of the RHR to all states for the first time is
incorrect. The 1999 RHR applies to all states,\92\ and all states
submitted regional haze SIPs (or asked the EPA to promulgate a regional
haze FIP on its behalf) during the first implementation period. As
discussed later in this preamble, we are expanding the scope of the
1980 reasonably attributable visibility impairment regulations to all
states for the first time, but the new reasonably attributable
visibility impairment provisions only require state action upon receipt
of a certification by a FLM. Historically, there have been very few FLM
certifications requesting states to assess controls for a particular
source or small group of sources.
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\92\ 40 CFR 51.300(b)(1)(i).
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Finally, we note that the language ``may affect'' in 40 CFR
51.308(f)(2) was adapted from the 1999 RHR, which used the same
term.\93\ On July 8, 2016, we released draft guidance that discusses
how states can determine which Class I areas they ``may affect'' and
therefore must consider when selecting sources for inclusion in a four-
factor analysis.\94\ The draft guidance discusses various approaches
that states used during the first implementation period, provides
states with the flexibility to choose from among these approaches in
the second implementation period, and recommends that states adopt ``a
conservative . . . approach to determining whether their sources may
affect visibility at out-of-state Class I areas.'' \95\ We plan to
finalize the draft guidance in the near future.
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\93\ See 40 CFR 51.308(d)(3).
\94\ 81 FR 44608 (July 8, 2016).
\95\ Draft Guidance on Progress Tracking Metrics, Long-term
Strategies, Reasonable Progress Goals and Other Requirements for
Regional Haze State Implementation Plans for the Second
Implementation Period, at 57-58 (2016).
---------------------------------------------------------------------------
We also received comments on the proposed interstate consultation
provisions in 40 CFR 51.308(f). A few commenters inquired whether
proposed 40 CFR 51.308(f)(2)(iii) \96\ would affect a substantive
change from the existing consultation provisions in 40 CFR 51.308(d).
One commenter stated that proposed 40 CFR 51.308(f)(2)(ii) would
apparently require states to consider how other states calculated the
URP, adopted emission reduction measures for sources and adopted any
additional measures that may be needed to address state contributions.
This commenter also argued that proposed 40 CFR 51.308(f)(2)(iii) would
incentivize states not to agree with other states on coordinated
emission management strategies because an agreement would create an
enforceable obligation against the state. Another commenter stated that
the EPA would need to coordinate and
[[Page 3095]]
mediate interstate consultations in order for them to prove successful.
---------------------------------------------------------------------------
\96\ As explained later in this document, the final rule
includes a consolidation and resulting renumbering of some of the
proposed provisions of 40 CFR 51.308(f)(2). This discussion refers
specifically to either proposed or final section numbers to avoid
confusion.
---------------------------------------------------------------------------
With one exception, we did not intend the proposed interstate
consultation provisions to affect a substantive change from the
existing provisions in the 1999 RHR. Under the proposed provisions, as
under the 1999 RHR, states must consult to develop coordinated emission
management strategies, demonstrate that their SIPs contain all agreed-
upon emission reduction measures, and document disagreements so that
the EPA can properly evaluate whether each state's implementation plan
provides for reasonable progress toward the national goal. We also
proposed a new requirement, in 40 CFR 51.308(f)(2)(ii), that states
must consider the control strategies being adopted by other states when
conducting their own four-factor analyses. The purpose of this
provision was to ensure that if one state had identified a control
measure as being reasonable for a source or group of sources to improve
visibility at a Class I area, then other states that affect that Class
I area would be required to consider that control measure for their own
sources, to the extent that the sources share similar characteristics.
However, in reviewing proposed 40 CFR 51.308(f)(2)(ii), we realized
that it contains extraneous language that has led to confusion among
some of the commenters. We discuss this issue in more depth, and other
changes being made to the consultation provisions, in the following
section.
In regard to the commenter's concern that the consultation
provisions will incentivize states to avoid entering into agreements
with each other to avoid enforceable obligations, we disagree. States
largely worked cooperatively to develop coordinated emission management
strategies during the first implementation period, and we expect that
they will do so again. If a state believes that additional controls
from sources in another state or states are necessary to make
reasonable progress at a Class I area, then the state should document
the disagreement to assist the EPA in determining whether the other
state's SIP is inadequate. Moreover, even if states were to avoid
entering into agreements for the purpose of avoiding enforceable
obligations under 40 CFR 51.308(f)(iii), this would not absolve the
states of their independent obligation to include in their SIPs
enforceable emission limits and other measures that are necessary to
make reasonable progress at all affected Class I areas, as determined
by considering the four factors. Finally, we do not believe that the
EPA needs to coordinate or mediate interstate consultations. During the
first implementation period, states consulted one-on-one and through
the RPO process without EPA oversight, and we expect this process to
work going forward as well.
3. Final Rule
We are finalizing the revisions to 40 CFR 51.308(f) that were
intended to clarify the relationship between RPGs and long-term
strategies and the obligations of upwind and downwind states largely as
proposed. However, we are making several changes to the provisions in
40 CFR 51.308(f)(2) governing long-term strategies to simplify these
provisions, enhance clarity and eliminate superfluous regulatory text.
In 40 CFR 51.308(f)(2), we are revising the requirement that states
must include in their long-term strategies ``the enforceable emissions
limitations, compliance schedules, and other measures that are
necessary to achieve reasonable progress'' to read ``make reasonable
progress'' instead. This change is to maintain consistency with the
language in CAA section 169A(b)(2).
In 40 CFR 51.308(f)(2)(i), we are making two minor changes. First,
we are revising the beginning of the first sentence to read, ``[t]he
State must evaluate and determine the emission reduction measures that
are necessary to make reasonable progress by considering'' the four
factors. We believe that this formulation is clearer than the language
in the proposal and more consistent with the language of the CAA.
Second, we are revising the second sentence, and splitting it into two
separate sentences, to make it clear that states must consider
anthropogenic sources of visibility impairment when conducting their
four-factor analyses, not natural sources, and that anthropogenic
sources can include mobile and area sources in addition to major and
minor stationary sources. As mentioned earlier, we are also adding a
sentence to 40 CFR 51.308(f)(2)(i) regarding the consideration of
emission controls that cannot reasonably be installed prior to the end
of the implementation period.
We are removing proposed 40 CFR 51.308(f)(2)(ii) in these final
revisions, which required states to consider the URP, the emission
reduction measures identified under 40 CFR 51.308(f)(2)(i), and
measures being adopted by contributing states under 40 CFR
51.308(f)(2)(iii) when developing their long-term strategies. States
are already required to consider the URP under 40 CFR 51.308(f)(3)(ii)
when establishing their RPGs. Moreover, it is duplicative to require
states to consider the emission reduction measures identified under 40
CFR 51.308(f)(2)(i) a second time. As discussed in the following
paragraph, we are moving the third requirement in proposed 40 CFR
51.308(f)(2)(ii) to the interstate consultation provisions.
We are changing proposed 40 CFR 51.308(f)(2)(iii), regarding
interstate consultations, to be 40 CFR 51.308(f)(2)(ii) and making
several changes. First, we are removing the distinction between
contributing states and states affected by contributing states because
the substance of the two provisions was essentially the same. The final
revisions include a single provision requiring each state to consult
with the other states that are reasonably anticipated to contribute to
visibility impairment in a mandatory Class I Federal area to develop
coordinated emission management strategies. Identification of the other
states should occur as part of a regional planning process. Second, we
are revising the language that required states to obtain either their
``share of the emission reductions needed to provide for reasonable
progress'' or ``all measures needed to achieve its apportionment of
emission reduction obligations'' depending on whether the state was a
contributing state or a state affected by contributing states. Most
states are both contributing states and states affected by contributing
states, so these variations in wording could be viewed as creating two
distinct obligations. Now, each state must demonstrate that it has
included in its long-term strategy ``all measures agreed to during
state-to-state consultations or a regional planning process, or
measures that will provide equivalent visibility improvement.'' Third,
as discussed previously, we have moved the requirement that states
consider the emission reduction measures other states have identified
as being necessary to make reasonable progress from proposed 40 CFR
51.308(f)(2)(ii), which accordingly has been eliminated, to the
interstate consultation provisions (now numbered as 40 CFR
51.308(f)(2)(ii)) because it is a more logical place for it. We have
also revised the wording of this provision to eliminate the ambiguity
in the proposed language noted by commenters regarding ``additional
measures being adopted'' by other states. Under this provision, states
must consider whether the emission reduction measures other states have
identified by other States for their sources as being necessary to make
reasonable progress in the mandatory Class I Federal area. This
consideration
[[Page 3096]]
is appropriate especially when the sources are of a similar type and
have similar emissions profiles and visibility impacts.
We are changing proposed 40 CFR 51.308(f)(2)(iv), regarding
documentation requirements, to be 40 CFR 51.308(f)(2)(iii) and making a
few minor changes. First, we are revising the first sentence to require
the states to ``document the technical basis, including modeling,
monitoring, cost, engineering, and emissions information, on which the
State is relying to determine the emission reduction measures that are
necessary to make reasonable progress in each mandatory Class I area it
affects.'' The proposed language referred to ``information on the
factors listed in (f)(2)(i) and modeling, monitoring, and emissions
information,'' but we believe this language was confusing because it
suggested that information on the four factors was something distinct
from modeling, monitoring and emissions information. The purpose of
this provision is to require states to document all of the information
on which they rely to develop their long-term strategies, which will
primarily be information used to conduct the four-factor analysis.
Therefore, in addition to modeling, monitoring and emissions
information, we are making it explicit that states must also submit the
cost and engineering information on which they are relying to evaluate
the costs of compliance, the time necessary for compliance, the energy
and non-air quality impacts of compliance and the remaining useful
lives of sources.
We are removing proposed 40 CFR 51.308(f)(2)(v), which required
states to identify the anthropogenic sources of visibility impairment
analyzed using the four factors and the criteria used to select sources
for analysis, because 40 CFR 51.308(f)(2)(i) as finalized already
includes these requirements.
Finally, we are changing proposed 40 CFR 51.308(f)(2)(vi) to be 40
CFR 51.308(f)(2)(iv) and making a few changes. We are revising the
first sentence of this provision to clarify that the enumerated factors
are additional to the factors states must consider in 40 CFR
51.308(f)(2)(i). We are also removing proposed 40 CFR
51.308(f)(2)(vi)(C) and (F) because they are duplicative requirements.
These provisions required states to consider the emission limitations
and schedules for compliance to achieve the RPG and the enforceability
of emission limitations and control measures. Section 40 CFR
51.308(f)(2) already requires states to include enforceable emission
limitations, compliance schedules, and other measures that are
necessary to make reasonable progress in their long-term strategies.
Section IV.G of this document discusses revisions we are making to the
additional factor regarding basic smoke management practices and smoke
management programs.
D. Other Clarifications and Changes to Requirements for Periodic
Comprehensive Revisions of Implementation Plans
The following clarifications and changes were also proposed to be
included in the revised 40 CFR 51.308(f). A summary of each proposed
clarifying change, a synopsis of the final rule, and a discussion of
comments received and EPA's responses are given later.
The URP line starts at 2000-2004, for every implementation period.
1. Summary of Proposal
The 1999 RHR's text of 40 CFR 51.308(d)(1)(i)(B) contains a
discussion of how states must analyze and determine ``the rate of
progress needed to attain natural visibility conditions by the year
2064.'' This rate has commonly been called the ``uniform rate of
progress'' or URP as well as ``the glidepath.'' The 1999 RHR's text of
40 CFR 51.308(f), which indicates that states must evaluate and
reassess all elements required by 40 CFR 51.308(d), requires states to
evaluate and reassess the URP in the second and subsequent
implementation periods. We explained in the proposal that 40 CFR
51.308(d) is not perfectly clear as to whether the URP line for the
second or later implementation periods must always start in the
baseline period of 2000-2004, or whether the state must (or may)
recalculate the starting point of the URP line based on data from the
most recent 5-year period during each successive regional haze SIP
revision.\97\ We also explained that although the regulations make
clear that the endpoint of the URP line should be set based on
attainment of the natural visibility condition for the 20 percent most
impaired days in 2064, the 1999 RHR does not specify an exact date in
2064 for this element.
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\97\ The preamble to the 1999 RHR provides an example explaining
how a state would determine the 2028 point on the URP line. 64 FR at
35746, n. 113. In this example, the URP line for the second
implementation period starts at 2000-2004.
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To ensure consistent understanding of how the URP analysis must be
done, the EPA proposed rule revisions in 40 CFR 51.308(f)(1)(i) and
(vi) that would make it explicit that in every implementation period,
the URP line for each Class I area is to be drawn starting on December
31, 2004, at the value of the 2000-2004 baseline visibility conditions
for the 20 percent most impaired days, and ending at the value of
natural visibility conditions on December 31, 2064. Specifying that the
5-year average baseline visibility conditions are associated with the
date of December 31, 2004, and that natural visibility conditions are
associated with the date of December 31, 2064, also clarifies that the
period of time between the baseline period and natural visibility
conditions, which is needed for determining the URP (deciviews/year) is
60 years.
Along with the clarification that the baseline period remains 2000-
2004 for subsequent implementation periods, the EPA also proposed
clarifications in 40 CFR 51.308(f)(1)(i) regarding how states treat
Class I areas without available monitoring data or Class I areas with
incomplete monitoring data, as follows: If Class I areas do not have
monitoring data for the baseline period, data from representative sites
should be used; if baseline monitoring data are incomplete, states
should use the 5 complete years closest to the baseline period. We
proposed to add this provision to remove any uncertainty about how an
issue of data incompleteness should be addressed in a SIP.
Finally, we proposed language in 40 CFR 51.308(f)(3)(i) and an
accompanying definition of ``end of the applicable implementation
period'' in 40 CFR 51.301 to make clear that RPGs are to address the
period extending to the end of the year of the due date of the next
periodic comprehensive SIP revision.
2. Comments and Responses
Some commenters were supportive of EPA's proposal to have the URP
line start at 2000-2004 for every implementation period, although some
asked for the option of recalculating the URP for the start of each
implementation period based on how much further progress is needed to
reach natural conditions given the progress already achieved. Other
commenters did not agree with EPA's proposal and instead supported a
revision to the regulations that would require states to reset the URP
at current visibility conditions during each periodic review, provided
those visibility conditions are better than during the baseline. Taking
into account past improvements in visibility that were in excess of the
URP in this way would result in a lower-lying URP line for successive
planning periods. This could change the comparison of the RPG to the
URP line, and trigger the
[[Page 3097]]
requirement of 40 CFR 51.308(f)(3)(ii) to show that there are no
additional measures that would be reasonable to include in the long-
term strategy, when it would not be triggered if the start of the URP
line had been kept at the 2000-2004 period.
As explained in the 1999 RHR, the consideration of the improvement
in visibility represented by the URP and the measures necessary to
attain that level of improvement is an analytical requirement. In the
1999 RHR, EPA adopted this required analysis in lieu of establishing
presumptive reasonable progress targets, in part to provide equity
between the goals set for the Class I areas in the more impaired
eastern portion of the country as compared to the areas in the western
portion. The URP analysis also helps to provide transparency to the
overall regional haze SIP planning process, in part by requiring states
to compare their RPGs to the rate of progress represented by the URP at
each Class I areas. Neither of these goals would be served by allowing
states to adopt differing approaches to the calculation of the URP.
We have considered the comments suggesting that the URP be redrawn
during each successive planning period. Although such an approach is
apparently intended by commenters to maintain pressure on the states to
adopt more comprehensive and effective reasonable progress strategies,
it is not clear that this approach would in fact achieve that outcome
because it may create disincentives for states to take aggressive
action during the first few planning periods. This is because resetting
the URP would make it more likely that a state that has taken early and
aggressive action to improve visibility would become subject to the
enhanced analytical requirement of 40 CFR 51.308(f)(3)(ii), thus
generating a possible disincentive for continued progress.
Because we have concluded that our proposed approach of starting
the URP for every implementation period at 2000-2004 will result in the
most equitable and transparent process and provide the strongest
incentive for continued progress toward achieving natural visibility
conditions, we are finalizing that approach with no changes to 40 CFR
51.308(f)(1)(i) or (vi).
3. Final Rule
The EPA is finalizing all of the previously described rule text
without any changes from the proposal.
The long-term strategy and the RPGs must provide for an improvement
in visibility for the most impaired days and ensure no degradation for
the clearest days.
1. Summary of Proposal
Section 169A of the CAA requires a SIP to not only reduce existing
visibility impairment but also to prevent future impairment. As part of
meeting the goal of preventing future visibility impairment, 40 CFR
51.308(d)(1) of the 1999 RHR requires a state to establish RPGs that
ensure no degradation in visibility for the least impaired days over
the period of the implementation plan. This text is ambiguous, however,
as to whether ``the period of the implementation plan'' refers to the
entire period since the baseline period of 2000-2004 or to the specific
implementation period addressed by the periodic SIP revision. The
proposal noted that a table in the preamble to the 1999 RHR summarizing
certain requirements indicated that the 2000-2004 period would be used
for ``tracking visibility improvement.'' \98\ To provide further
clarity on this issue, we proposed new rule text in revised 40 CFR
51.308(f)(3)(i) that would make clear that the requirement is for a
state to establish an RPG for the 20 percent clearest days in each
periodic review that ensures that there is no deterioration in
visibility on the 20 percent clearest days as compared to the baseline
period of 2000-2004. We note that while 40 CFR 308(d)(1) of the 1999
RHR expresses the requirement of no degradation in visibility in terms
of the RPG for the 20 percent clearest days, this requirement comes
into play as a factor in what emission sources are subject to
additional control measures in the long-term strategy, because this RPG
is the projected result of implementing the long-term strategy. In
other words, a state must adopt a long-term strategy that includes the
necessary measures to ensure that the expected visibility on the 20
percent clearest days at the end of the planning period, as represented
by the RPG for these days, will not deteriorate as compared to the
visibility condition for these days in 2000-2004.The rule text we
proposed for 40 CFR 308(f)(3)(i) made this connection explicit by
saying that the long-term strategy and the RPG must provide for no
degradation.
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\98\ 64 FR 35730.
---------------------------------------------------------------------------
2. Comments and Responses
The EPA received comments both in support of, and raising concerns
with, the proposed changes. The commenters opposed to our proposal
preferred that when a state documents that the RPG for the 20 percent
clearest days (i.e., the projected visibility condition on the clearest
days as of the end of the given implementation period) shows no
degradation, the benchmark for that comparison should be the lowest
measured impairment of either the baseline period or current conditions
reported in any progress report or comprehensive periodic revision for
the clearest days. The approach recommended by the commenter would mean
that the benchmark for the no degradation comparison would ratchet down
over time.
One commenter pointed out that as proposed, 40 CFR 308(f)(3)(i)
addressed not just the requirement for no degradation for the clearest
days but also the requirement that there be an improvement for the most
impaired days. This commenter noted that the relevant sentence of 40
CFR 308(f)(3)(i) could be interpreted to mean that the baseline period
of 2000-2004 is the benchmark for determining if the long-term strategy
and RPG for the most impaired days provides for an improvement.\99\ The
commenter said that the final rule should provide that the benchmark
for the improvement requirement should be the lowest measured
impairment of either the baseline period or current conditions reported
in any progress report or comprehensive periodic revision for the most
impaired days. The approach recommended by the commenter would mean
that the benchmark for the improvement comparison would ratchet down
over time.
---------------------------------------------------------------------------
\99\ The relevant sentence in the rule reads, ``The long-term
strategy and reasonable progress goals must provide for an
improvement in visibility for the most impaired days and ensure no
degradation in visibility for the clearest days since the baseline
period.'' The concluding phrase ``since the baseline period'' can be
taken to apply to only the clearest days, or to both the most
impaired days and the clearest days.
---------------------------------------------------------------------------
We are finalizing our proposal to clarify that the benchmark for
the requirement for no degradation on the 20 percent clearest days is
the 2000-2004 baseline visibility condition. Further, we are clarifying
that the baseline visibility condition for the 20 percent most impaired
days is also the benchmark for the requirement that the long-term
strategy and RPGs provide for an improvement for the most impaired
days. We are taking this approach in the final rule for several
reasons.
Visibility on the clearest days has been improving since the 2000-
2004 period in most Class I areas, generally tracking the improvements
seen on the 20 percent haziest and 20 percent most
[[Page 3098]]
impaired days.\100\ We expect that it will continue to be the case that
emission reduction measures that provide for reasonable progress on the
20 percent most impaired days will also have benefits on the clearest
days. Thus, we expect that there will be a continuing improvement on
the clearest days regardless of the benchmark selected, even if the
rule did not contain any requirement for no degradation on the clearest
days. Even so, we believe that the no degradation requirement with the
2000-2004 visibility condition as the benchmark is an appropriate
backstop in the rule that will continue to require states to consider
additional measures in the event that measures adopted to improve
visibility on the most impaired days are insufficient to protect
visibility on the clearest days.
---------------------------------------------------------------------------
\100\ The RTC contains graphics illustrating these improvement
trends. The only situations in which there has been degradation
since 2000-2004 are at a few Class I areas in the Virgin Islands and
Alaska where sea salt particles significantly contribute to light
extinction on the clearest days and concentrations of such particles
on those days have increased over this period.
---------------------------------------------------------------------------
We are not adopting the approach of ratcheting down the benchmark
for the no degradation requirement. If we were to do this, it might
lead to unreasonable outcomes in some cases. Available air quality
modeling approaches for forecasting visibility conditions are at
present more uncertain when predicting low concentrations of
visibility-impairing pollution than when predicting higher
concentrations, making comparisons of two ``clean'' scenarios more
uncertain. Such comparisons could become required for many areas and
have critical implications for SIP approvals. Errors in such
comparisons due to modeling system errors might lead to inappropriate
SIP disapprovals if the benchmark for the no degradation requirement
continually ratcheted down as progress is made. Another consideration
is that even with a 5-year averaging approach, transient natural
phenomena might cause a temporary improvement in visibility on the
clearest days entirely unrelated to the content and implementation of
states' long term strategies, which would permanently reduce the
benchmark if the ratcheting approach were followed. It might then be
very difficult or unreasonable for a state in subsequent periods to
show no degradation relative to this lower benchmark given that on the
clearest days influences from anthropogenic sources will be relatively
small. Finally, we believe that consistency between the benchmark for
the no degradation test and the starting point for the URP, across
Class I areas in a given implementation period and across
implementation periods, will aid public understanding and participation
in SIP development. For these reasons, we are finalizing our proposal
on this aspect of the RHR.
In addition, we are finalizing wording in 40 CFR 308(f)(3)(i) that
makes it clear that the baseline condition in 2000-2004 is also the
benchmark for determining whether the long-term strategy and RPGs
provide for an improvement in visibility for the most impaired days,
but repeating the reference to this baseline so that it links
unambiguously to that requirement as well as to the no degradation
requirement. We recognize that since 2000-2004 there have been
widespread improvements in visibility on the most impaired days and
that this already accomplished improvement has created a ``cushion''
for a comparison to check that the RPG for the end of a future
implementation period shows improvement. However, we disagree with the
commenter's suggestion that the benchmark for the improvement
requirement should ratchet down over time, for similar but not entirely
identical reasons that we disagree regarding the no degradation
requirement. The advantage of consistency to public understanding
applies to the improvement requirement as well as to the no degradation
requirement. While the problem of modeling uncertainty applies less to
the most impaired days at this stage of the regional haze program, in
later periods the most impaired days will be clearer than they are now
and the difficulty of distinguishing differences may apply more
strongly. Also, we are mindful of the potential for reducing incentives
for states to take action during the first few planning periods. With
the 2000-2004 period as the benchmark for the no degradation
requirement, a state has an incentive to take early action to improve
the clearest days because this will create a safety margin in case
later developments outside the state's control cause an increase in
impairment on these days. Ratcheting down the baseline for the no
degradation requirement would remove this incentive for continued
progress because it would never be possible for a state to create a
safety margin.
However, the use of the baseline period as the benchmark for the no
degradation and improvement requirements does not mean that states are
free to simply allow visibility levels to return to what they were in
the baseline period, or to allow for degradation in visibility as
compared to current conditions. If a state were to set an RPG that
reflects a forecast of degradation during a particular period, the
adequacy of the SIP would need to be carefully assessed. In this
situation, additional measures may be necessary to ensure reasonable
progress, depending on the underlying explanation for the forecasted
degradation. It may be that a state would be able to show that any
forecasted degradation is attributable to causes other than
deficiencies in its long-term strategy, but such a demonstration would
need to be carefully assessed. We note that for at least the next
planning period or two, the requirement to consider the four statutory
factors for a reasonably selected set of sources should result in the
adoption of additional control measures that provide an improvement,
especially for a state with sources that contribute to impairment at a
Class I area with an RPG above the URP line.
3. Final Rule
Upon careful consideration of public comments received on this
issue, the EPA is finalizing the proposed rule with a clarifying edit
to the proposed language to make it clear that the baseline visibility
condition is also the benchmark for determining whether the long-term
strategy and RPGs provide for an improvement in visibility on the most
impaired days.
The sentences of the final version of 40 CFR 51.308(f)(1)(i),
regarding the calculation of the baseline visibility conditions, have
been slightly reordered and reworded from the proposed version for
clarity. In addition, the final sentence of this paragraph, regarding
Class I areas that did not have IMPROVE monitoring stations installed
in time to provide complete monitoring data for 2000-2004, has been re-
worded to clarify that ``closest'' means closest in time to 2000-2004
and does not refer to another Class I area that is nearest in distance.
In the final version of 40 CFR 51.308(f)(1)(ii), an occurrence of
``or'' has been corrected to ``and'' to indicate that natural
visibility conditions for both the most impaired days and the clearest
days must be based on available monitoring information. Minor edits for
clarity have also been included in the final versions of 40 CFR
51.308(f)(1)(iii) and (iv).
Analytical Obligation When the Reasonable Progress Goal for the 20
Percent Most Impaired Days Is Not On or Below the URP Line.
1. Summary of Proposal
The EPA proposed 40 CFR 51.308(f)(3)(ii) in order to clarify the
[[Page 3099]]
relationship between the RPG for the 20 percent most impaired days and
the URP line. This relationship determines the content of the
demonstration a state must submit to show that its long-term strategy
provides for reasonable progress. This clarification was based upon the
1999 RHR's text of 40 CFR 51.308(d)(1)(ii). That provision addresses
required actions of a state containing a Class I area that has adopted
an RPG for the area that provides for a slower rate of visibility
improvement than that needed to attain natural conditions by 2064
(i.e., an RPG for the 20 percent most impaired days that is above the
URP line). The proposed text of 40 CFR 51.308(f)(3)(ii)(A) stated that
if the RPG for a Class I area is above the URP line, the state
containing the Class I area must demonstrate, based on the four
reasonable progress factors, that there are no additional emission
reduction measures for anthropogenic sources or groups of sources in
the state that may be reasonably anticipated to contribute to
visibility impairment that would be reasonable to include in the long-
term strategy, and that such a demonstration is required to be
``robust.'' Specifically, this demonstration must include documentation
of the criteria used to determine which sources or groups of sources
were evaluated and of how the four factors were taken into
consideration in selecting the measures for inclusion in its long-term
strategy.
In addition, in comparison with the 1999 RHR's 40 CFR
51.308(d)(2)(iv) and 40 CFR 51.308(d)(3)(i) and (ii), the proposed 40
CFR 51.308(f)(2)(iii) more clearly spelled out the respective
consultation responsibilities of states containing Class I areas as
well as states with sources that may reasonably be anticipated to cause
or contribute to visibility impairment in those areas. To further
clarify the obligations of what we are referring to as contributing
states, we proposed 40 CFR 51.308(f)(3)(ii)(B) to specify that in a
situation where the RPG for the most impaired days is set above the
glidepath, a contributing state must make the same demonstration with
respect to its own long-term strategy that is required of the state
containing the Class I area, namely that there are no other measures
needed to provide for reasonable progress. The intent of this proposal
was to ensure that states perform rigorous analyses, and adopt measures
necessary for reasonable progress, with respect to Class I areas that
their sources contribute to, regardless of whether such areas are
located within their borders. This proposed change clarifies that the
RPG for the most impaired days in the SIP of the state containing the
Class I area does not ``set the bar'' for the contributing state's
long-term strategy.
2. Comments and Responses
The EPA received comments both in support of, and opposed to, the
proposed changes. Comments opposing these provisions stated that this
additional requirement goes beyond the CAA's requirement to consider
the four statutory factors. The EPA disagrees with this assertion.
Congress declared a national goal of preventing any future and
remedying any existing visibility impairment in Class I areas resulting
from manmade air pollution and delegated to EPA the authority to
promulgate regulations assuring reasonable progress toward meeting that
goal. CAA section 169A(a)(1), (a)(4). The analytical obligations
contained in 40 CFR 51.308(f)(3)(ii) are a mechanism to ensure that
states are, in fact, making reasonable progress by requiring states in
certain circumstances to demonstrate the reasonableness of their four-
factor analyses. In addition, some commenters suggested that the term
``robust demonstration'' is overly vague and expressed concern that,
essentially, the EPA could take advantage of this vagueness in order to
form its own criteria for disapproval of a SIP. Most commenters did not
supply any specific suggestions, simply stating either that the term
should be clarified or that this provision should not be finalized,
although one commenter suggested states be allowed to refer to
information already submitted or contained in an applicable docket for
purposes of such a demonstration. We disagree that the requirement of a
``robust demonstration'' is vague. The provision requires the
demonstration to be based on the analysis in 40 CFR 51.308(f)(2)(i),
and further clarifies that the demonstration must document the criteria
used to determine which sources or groups of sources were evaluated and
how the four reasonable progress factors were considered. The purpose
of this demonstration is to show that a state conducted its analysis in
a reasonable manner and that there are no additional measures that
would be reasonable to implement in a particular planning period. A
state may refer to its own experience, past EPA actions, the preamble
to this rule as proposed and this final rule preamble, and existing
guidance documents for direction on what constitutes a reasoned
determination. Additionally, the EPA recently issued a draft guidance
document that addresses, among other things, the reasonable progress
analysis, which we expect to finalize in the near future. This guidance
can provide further direction regarding the types of information and
analyses a state may provide in its demonstration under 40 CFR
51.308(f)(3)(ii). The EPA is therefore finalizing this provision as
proposed. In addition, one commenter stated that the ``robust
demonstration'' language of the proposed 40 CFR 51.308(f)(3)(ii)(A) was
missing from the proposed 40 CFR 51.308(f)(3)(ii)(B). The EPA agrees
the necessary text was missing from proposal, as states with Class I
areas should be subject to the same type of demonstration as those
contributing states without Class I areas. Therefore, the final rule
includes in the requirements for a contributing state in 40 CFR
51.308(f)(3)(ii)(B) the same requirement for a robust demonstration
that appeared only in 40 CFR 51.308(f)(3)(ii)(A) at proposal.
Some commenters stated a desire for corresponding rule text dealing
with situations where RPGs are equal to (``on'') or better than
(``below'') the URP or glidepath. Several commenters stated that the
URP or glidepath should be a ``safe harbor,'' opining that states
should be permitted to analyze whether projected visibility conditions
for the end of the implementation period will be on or below the
glidepath based on on-the-books or on-the-way control measures, and
that in such cases a four-factor analysis should not be required. Other
commenters suggested a somewhat narrower entrance to a ``safe harbor,''
by suggesting that if current visibility conditions are already below
the end-of-planning-period point on the URP line, a four-factor
analysis should not be required. We do not agree with either of these
recommendations. The CAA requires that each SIP revision contain long-
term strategies for making reasonable progress, and that in determining
reasonable progress states must consider the four statutory
factors.\101\ Treating the URP as a safe harbor would be inconsistent
with the statutory requirement that states assess the potential to make
further reasonable progress towards natural visibility goal in every
implementation period. Even if a state is currently on or below the
URP, there may be sources contributing to visibility impairment for
which it would be reasonable to apply additional control measures in
light of the four factors. Although it may conversely be the case that
no such sources or control measures exist in a particular state with
respect to a particular Class I area and implementation period, this
should be determined based on a four-factor
[[Page 3100]]
analysis for a reasonable set of in-state sources that are contributing
the most to the visibility impairment that is still occurring at the
Class I area.\102\ It would bypass the four statutory factors and
undermine the fundamental structure and purpose of the reasonable
progress analysis to treat the URP as a safe harbor, or as a rigid
requirement.
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\101\ CAA section 169A(b)(2)(B), (g)(1).
\102\ The point that having a RPG that is on or below the URP
line is not a safe harbor has been articulated in past actions such
as the disapproval of the reasonable progress element of Arkansas'
SIP (see fn 32). Our approval of the reasonable progress element of
South Dakota's SIP is an example in which we approved the state's
RPGs even though the RPG for the most impaired days for two Class I
areas were above the respective URP lines, based on the state having
adequately considered the four statutory factors for important
contributing sources. 76 FR 76646 (December 8, 2011) (proposed
action) and 77 FR 24845 (April 26, 2012) (final action).
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3. Final Rule
The EPA is finalizing all of the previously described rule text
without any changes from the proposal, with the exception of including
in 40 CFR 51.308(f)(3)(ii)(B) the same requirement for a robust
demonstration that appeared only in 40 CFR 51.308(f)(3)(ii)(A) at
proposal.
Emission inventories.
1. Summary of Proposal
The EPA proposed language in 40 CFR 51.308(f)(2)(iv) regarding the
``baseline emissions inventory'' to be used by a state in developing
the technical basis for the state's long-term strategy. This was done
in order to reconcile this section with changes that have occurred to
40 CFR part 51, subpart A, Air Emissions Reporting Requirements, since
the RHR was originally promulgated in 1999. The proposed changes were
also intended to provide flexibility in the base inventory year the
state chooses to use, as the EPA has always intended if there is good
reason to use another inventory year.
2. Comments and Responses
Commenters were split on whether to support the flexibility
afforded by the proposed rule text for selecting a year other than the
most recent NEI year as the year of the inventory to be used as the
basis for developing the long-term strategy. Some commenters supported
the proposal, while others preferred that EPA require or definitively
endorse that the 2011 NEI can be used as the base year for modeling for
the next periodic comprehensive SIP revisions. The latter view
generally resulted from concerns that while additional NEI versions,
such as the 2014 and 2017 NEI versions, should be available by the time
periodic comprehensive SIP revisions are due in 2021, there would not
be adequate time after release of these inventories to complete all the
modeling and analysis work required.
Consideration of these comments uncovered significant ambiguity in
the text of 40 CFR 51.308(d)(3)(iii) of the 1999 RHR and ambiguity in
the proposed new 40 CFR 51.308(f)(2)(iv) that would reflect 40 CFR
51.308(d)(3)(iii). Specifically, the term ``the baseline inventory on
which [the state's] strategies are based'' in the 1999 RHR can be taken
to refer to the inventory that is used to assess the contribution that
sources make to visibility impairment (and the visibility benefits of
additional control measures, when such benefits are considered) for
individual sources or groups of sources. That information is critical
to the development of the long-term strategy and, in that sense, is the
information on which a state's strategies are to be based. However, we
believe that some commenters have taken the term to refer to the
inventory that is used as the expected starting point for the
photochemical modeling that they (and we) expect will be used to
project the RPG that quantifies the projected effect of all the
measures in the long-term strategy and other influences on visibility
at the end of the implementation period. The two bodies of information
are not necessarily the same, and they do not necessarily even need to
be for the same year in order to develop a SIP that provides for
reasonable progress. In fact, the modeled RPGs that are eventually
included in a SIP revision do not directly affect the development of
the long-term strategy, but rather they reflect that strategy. We are
revising the proposed regulatory text to make this clear. The final
regulations use the ``emissions information on which the State's
strategies are based'' to refer to the inventory that is used to assess
the contribution that sources make to visibility impairment and not to
the base year inventory used to model the RPGs.
The requirement in the final version of 40 CFR 51.308(f)(2)(iv) is
that the emissions information on which the state is relying to
determine the emission reduction measures that are necessary to make
reasonable progress must include, but need not be limited to,
information on emissions in a year at least as recent as the most
recent year for which the State has submitted emission inventory
information to the Administrator under the Air Emissions Reporting
Requirements. To allow time for this information to be used in SIP
development, the rule provides for a 12-month ``grace period'' such
that a submission to the NEI in the period 12 months prior to the due
date of the SIP does not trigger this requirement. We agree with the
comments to the effect that there is no reason why a state should not
make at least some information for the year of its most recent
submission to the NEI part of the basis for its determination of the
emission reduction measures that are necessary to make reasonable
progress. The state is not required to use the same information as was
submitted to the NEI, and it should not if it has developed or received
better information for that year since its NEI submission. A state may
also consider information for a more recent year if it is available and
is of sufficient quality. Therefore, we do not believe it is necessary
or appropriate for the RHR to provide for an exception to the
requirement as it is stated in this section of the rule text and
interpreted here. A state that plans to use information other than what
is in the most recent NEI version released by the EPA to develop its
long-term strategy should consult with its EPA regional office to
obtain the EPA's preliminary perspective on whether there is a
reasonable basis for its planned approach. This should also be a topic
of the ongoing consultation with affected FLMs.
The final version of 40 CFR 51.308(f)(2)(iv) does not address the
question of the year to be used as the base year for emissions modeling
of the RPGs. The EPA generally recommends that this be the year of the
most recent NEI version that has been developed and validated enough to
be appropriate for air quality modeling to support policy development.
The final rule provides the EPA flexibility to approve a SIP based on
another year if there are good reasons. States that believe that
another year is more suitable should consult with the EPA Regional
office about their reasons.
3. Final Rule
For the reasons described previously, and also here, the final
language for 40 CFR 51.308(f)(2)(iv) differs somewhat from the wording
we proposed with respect to the terminology used to refer to emissions
inventories. The final version of this subsection of the rule refers to
the ``emissions information on which the state's strategies are
based,'' rather than to a ``baseline'' emissions inventory. The final
version also does not include a provision for EPA approval for
selecting a year other than the year of the most recent submission
under the Air Emissions Reporting Requirements as the year of the
[[Page 3101]]
inventory to be used as the basis for developing the long-term
strategy. However, the final rule provides a 12-month grace period for
the use of the year of the most recent submission under the Air
Emissions Reporting Requirements. The rule does not address the
selection of a year as the base year for emissions modeling of the RPGs
for the end of the implementation period.
EPA action on RPGs.
1. Summary of Proposal
The proposed language of 40 CFR 51.308(f)(3)(iv) was intended to
make clear that in approving a state's RPGs, the EPA will consider the
controls and technical demonstration provided by a contributing state
with respect to its long-term strategy, in addition to those developed
by the state containing the Class I area with respect to its long-term
strategy. This clarification was proposed in light of the 1999 RHR's 40
CFR 51.308(d)(1)(iii), which only explicitly mentions the demonstration
provided by the state containing the Class I area.
2. Comments and Responses
No comments were received that specifically addressed this proposed
rule text.
3. Final Rule
The EPA is finalizing this rule text as proposed.
Progress report elements of periodic comprehensive SIP revisions.
1. Summary of Proposal
The proposed language in 40 CFR 51.308(f)(5) complemented proposed
changes regarding progress reports and the proposal to eliminate
separate progress reports being due simultaneously with periodic
comprehensive SIP revisions by requiring periodic comprehensive SIP
revisions to include certain information that would have been addressed
in the progress reports. While the proposed language would expand the
scope of periodic comprehensive SIP revisions, the same information
would still be covered and states would no longer need to prepare and
submit two separate documents (potentially containing overlapping
content) at the same time.
2. Comments and Responses
Few comments were received that specifically addressed this
proposed rule text. Those that did address these provisions supported
the proposed changes, with one comment additionally suggesting use of
the terminology ``the most recent progress report'' instead of ``the
past progress report,'' which EPA is incorporating into the final text
(this is discussed later). In addition, one commenter noted that states
should also be required to address the requirements of proposed 40 CFR
51.308(g)(8) in periodic comprehensive SIP revisions. Proposed 40 CFR
51.308(g)(6), renumbered in the final rule as 40 CFR 51.308(g)(8),
requires progress reports to include a summary of the most recent
assessment of smoke management programs operating within the state if
such assessments are an element of the program. (As background, this is
not a requirement of the 1999 RHR for either progress reports or
periodic SIP revisions.) We agree that the provisions of 40 CFR
51.308(f)(5) do not contain a requirement similar to the requirement in
proposed 40 CFR 51.308(g)(6) or final 40 CFR 51.308(g)(8). However, for
any state where smoke from prescribed fires is a significant
contributor to visibility impairment, the analysis that it will perform
under 40 CFR 51.308(f)(3)(iv)(D) as finalized (the requirement for a
state to consider basic smoke management practices and smoke management
programs) will serve the same purpose as would requiring periodic SIP
revisions to summarize the conclusions of the most recent assessment of
an existing smoke management program.
3. Final Rule
The EPA is finalizing this rule text as proposed with only minor
wording changes for clarity including a small change in wording in
response to a public comment indicating confusion with the terminology
``past progress report.'' The EPA agrees that this should instead refer
to the ``most recent progress report'' and is finalizing revised text
accordingly.
E. Changes to Definitions and Terminology Related to How Days Are
Selected for Tracking Progress
1. Summary of Proposal
The 1999 RHR's 40 CFR 51.308(d) required states to determine the
visibility conditions (in deciviews) for the average of the 20 percent
least impaired and 20 percent most impaired visibility days over a
specified time period at each of their Class I areas. As discussed in
detail in the preamble of the proposed rule, the definition of
visibility impairment included in 40 CFR 51.301 of the 1999 RHR
suggests that only visibility impacts from anthropogenic sources should
be included when considering the degree of visibility impairment.
However, the approach followed for the first implementation period
involved selecting the least and most impaired days as the monitored
days with the lowest and highest actual deciview levels regardless of
the source of the particulate matter causing the visibility impairment.
While the EPA approved SIPs using this approach for the first
implementation period, experience now indicates that for the most
impaired days an approach focusing on anthropogenic impairment is more
appropriate because it will more effectively track whether states are
making progress in controlling anthropogenic sources. Our proposed
approach is also more consistent with the definition of visibility
impairment in 40 CFR 51.301. Because the 1999 RHR rule text already
refers to the 20 percent most impaired days, we did not propose to
change that wording. In the preamble to the proposal, we made clear
that going forward, we would interpret ``most impaired days'' to mean
those with the greatest anthropogenic visibility impairment, as opposed
to the 20 percent haziest days. We did not propose to change the
approach of using the 20 percent of days with the best visibility to
represent good visibility conditions for RPG and tracking purposes, but
we did propose a rule text change to refer to them as the 20 percent
clearest days rather than the 20 percent least impaired days.
The proposal included changes to a number of the definitions in 40
CFR 51.301 as well as added definitions for some previously undefined
terms, including clearest days, the deciview index, natural visibility
conditions and visibility.
The EPA solicited comment on requiring all states to use the new
meaning of ``most impaired days'' as referring to the days with the
most anthropogenic impairment, as well as on a second proposed
approach. In the second proposed rule alternative, states would be
allowed to choose between selecting the 20 percent of days with the
highest overall haze (i.e., the approach used in the first
implementation period) and selecting the 20 percent of days with the
most impairment from anthropogenic sources (the proposed new meaning).
The EPA also solicited comment on any additional approaches.
2. Comments and Responses
We received some comments favoring the first proposed rule
alternative that expressed support for a single, consistent approach to
selecting the 20 percent most impaired days for all states. However,
the majority of comments from states favored the second proposed rule
alternative due to
[[Page 3102]]
the flexibility it offered. Some comments on the second proposed rule
alternative expressed concerns about, and requested guidance for,
consultation between states in situations where two states use
different approaches. Some comments favoring the second proposed rule
alternative said that they anticipated that using the 20 percent most
anthropogenically impaired days would mean an additional workload that
would consume state resources during the planning process, and cited
this as the reason they did not support the first proposed rule
alternative. One commenter suggested that the final rule could allow
states submitting their SIPs for the second implementation period by
the 1999 RHR's deadline of July 31, 2018, to choose between using the
20 percent most anthropogenically impaired days or the 20 percent
haziest days, with states submitting later required to use the latter
approach.
After considering these comments and other considerations as
described here, we are finalizing the first proposed alternative for
the final rule (i.e., that ``most impaired days'' means those with the
most anthropogenic impairment). The EPA often provides states
flexibility when it may help achieve the objectives of SIP development
and does not negatively implicate a program's objectives. In this
particular situation, however, the flexibility of the second proposed
rule approach would not significantly assist in developing efficient
and effective SIPs and would likely result in confusion among
stakeholders. For example, if two states with Class I areas in close
proximity choose different approaches to the selection of days, the
public might misunderstand how past and projected progress in improving
visibility compares between the two areas. Also, allowing the state
with a Class I area to unilaterally choose the selection approach for
that area would raise the prospect that a contributing state might
disagree with that choice, because the choice could make a difference
in whether both states are subject to the enhanced analysis requirement
of 40 CFR 51.308(f)(3)(ii), therefore complicating consultation among
states. It would be possible for a state to choose a given approach
simply because it would result in the best comparison of RPGs to the
glidepath or URP for the implementation period being addressed by a SIP
revision, and a state could conceivably switch back and forth between
the two approaches from one period to another to get the best
comparison for each period, causing additional confusion. In addition,
we believe the approach of using anthropogenic impairment to select the
20 percent worst days is more consistent with the intent of the
original RHR, namely to reduce the aggregate effect that anthropogenic
sources have on the visual experience of visitors to Class I areas.
The EPA disagrees that concerns regarding additional workload and
lack of resources preclude adopting the first proposed alternative. The
EPA and IMPROVE program will work together to provide datasets that
identify the most anthropogenically impaired days in each year of
IMPROVE data and that contain the statistical summaries of these days
need as part of a SIP revision or progress report. These datasets will
be based on a specific method the EPA intends to recommend in a future
guidance document. We expect that these datasets will avoid any
increase in the workload and resources required of states relative to
continued use of the haziest days. We will also work with any state or
states interested in a different specific method for identifying the
most impaired days than the one we will recommend, to avoid an increase
in workload that would interfere with other aspects of SIP development.
The final rule revisions requiring states to use the 20 percent of
days with the greatest anthropogenic impairment do not have any direct
implications for how states develop their long-term strategies. While
these revisions may affect whether a state has to demonstrate that
there are no additional measures that would be reasonable to include in
the long-term strategy under the requirement of 40 CFR
51.308(f)(3)(ii), these revisions do not prescribe how a state may make
this demonstration. Thus, we believe that this requirement will not
impair states' flexibility to appropriately analyze and address the
sources of visibility impairment at Class I areas in and near their
states.
We are not making any changes in response to the comment suggesting
that the final rule provide flexibility in the approach to the
selection of the worst days only for areas that submit their SIP
revisions by July 31, 2018. It is our understanding that only some
eastern states may be submitting SIP revisions this early and that the
states involved have not been experiencing erratic impacts from
wildfires and dust storms. Therefore, we do not believe the special
flexibility the commenter suggests is needed. As mentioned, any state
may choose to include in its SIP a second summary of visibility data
using the 20 percent haziest days approach, for public information
purposes.
Regarding the proposed changes to definitions, commenters
recommended adding language to the definitions of most impaired days,
regional haze, and visibility impairment to further clarify that these
terms refer to impairment due to anthropogenic sources. The EPA agrees
that some of the suggestions provided by commenters further clarify
that visibility impairment is due to anthropogenic sources and does not
include emissions from natural sources. Therefore, in response to these
comments, we have finalized additional changes to the definitions of
most impaired days, regional haze, and visibility impairment to also
include the concept that impairment is anthropogenic.
We also received comments on the proposed change to the definition
of natural conditions and the proposed definition of natural visibility
conditions. The commenters asked the EPA to further revise these
definitions to reflect the reality that natural conditions have changed
over time and will continue to change in the future; to make clear the
timeframe of natural visibility conditions we intend to be captured by
the definition; that natural visibility conditions may reflect poor
visibility conditions; and to more explicitly include the factors
contributing to natural visibility conditions (e.g., fire and dust
events, volcanic activity, etc.). As a result of these comments, we are
finalizing additional changes to these two definitions and adding
definitions for two additional terms used in the rule. We are also
providing further explanation of the role of natural visibility
conditions in the SIP development process as follows.
The EPA is finalizing the definition of natural conditions to
include a list of example phenomena considered to be a part of natural
conditions. The list provided is not intended to be exhaustive, but
provides examples of some of the types of natural impacts that may
affect Class I areas. We are also finalizing the definition of natural
conditions to reflect the EPA's understanding that natural conditions
not only will vary with time, but that they also may have long-term
trends due to changes in the Earth's climate system. We have also
clarified in this definition that natural phenomena both near to and
far from a Class I area may impact visibility in the Class I area.
To reduce confusion between the natural visibility that would exist
on a single day and the average of a set of natural visibility values
for a set of days, we are finalizing separate definitions of natural
visibility and natural visibility
[[Page 3103]]
condition. Natural visibility will refer to visibility on a single day.
The natural visibility definition includes language that recognizes
natural visibility does vary daily and may contain long-term trends.
Natural visibility condition will refer to the average of a set of
values on an indicated set of days.
In practice, the natural visibility condition for the 20 percent
most impaired days is used by a state when developing the most
appropriate 2064 endpoint for the URP line. Then the RPG for the 20
percent most impaired days is to be compared with the point on the URP
line corresponding to the end date of the implementation period, which
will in effect be adjusted by a portion of the adjustment made to the
2064 endpoint. The EPA invited comment on draft guidance \103\ to the
states on how to determine the value of the 2064 natural visibility
condition for the 20 percent most impaired days for each Class I area
for purposes of calculating the URP, and we intend to provide final
guidance on this topic separately from this action on revisions to the
RHR.
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\103\ Draft Guidance on Progress Tracking Metrics, Long-Term
Strategies, Reasonable Progress Goals and Other Requirements for
Regional Haze State Implementation Plans for the Second
Implementation Period. 81 FR 44608 (July 8, 2016).
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The need for clarity about the distinction between visibility on
one day and the average of the visibility values for a set of days also
applies to baseline visibility conditions and to current visibility
conditions. To achieve this clarity, the final rule text includes new
definitions of the terms baseline visibility condition and current
visibility condition. These definitions are consistent with the way
these terms are used in 40 CFR 51.308, but having these explicit
definitions will improve understanding by participants in the regional
haze program.
3. Final Rule
The EPA is finalizing the requirement that all states select the 20
percent most impaired days, i.e., the days with the most impairment
from anthropogenic sources, as the ``worst'' days for purposes of
calculating baseline visibility conditions, current visibility
conditions, natural visibility conditions and the URP in SIPs and, as
applicable, in progress reports. Under the final rule revisions, states
retain the option to also present visibility data using the days with
the highest overall deciview index values (i.e., the 20 percent haziest
days), for public information purposes. Including this information in
the SIP may help communicate to the public the magnitude of impacts
from natural sources including wildland wildfires and dust storms. The
RPGs and URP line that are calculated using anthropogenic impairment to
select the most impaired days constitute the glidepath representing the
state's determination of reasonable progress and, if appropriate, may
trigger the requirement for a state to show that there are no
additional emission reductions measures that would be reasonable to
include in the long-term strategy (see Section IV.D of this document).
Since the 20 percent most anthropogenically impaired days will, going
forward, be used to estimate natural visibility conditions, current
visibility conditions and the URP, they must also be used in setting
RPGs and in progress reports. Conforming edits that were proposed to
the provisions related to each of these calculations are likewise being
finalized. As described at proposal, the revised approach will apply
starting with the second and subsequent periodic comprehensive SIP
revisions and will apply to progress reports starting with those
submitted after the second SIP revision. EPA will continue to use the
previous approach of considering the 20 percent haziest days with
respect to SIP revisions submitted to satisfy the requirements of the
first implementation period or initial progress reports.
The EPA did not propose to require any particular method for
determining the natural versus anthropogenic contributions to daily
haze and thus the degree of visibility impairment for each monitored
day. The EPA issued draft guidance \104\ describing a recommended
approach along with a process for routinely providing relevant datasets
for use by states when they develop their SIPs and progress reports. No
particular method is being prescribed by the final rule nor will the
final version of the guidance contain any binding requirements; states
can therefore develop, justify and use another method of discerning
natural and anthropogenic contributions to visibility impairment in
their SIPs. The EPA intends to include more information on this subject
in the final guidance.
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\104\ 81 FR 44608 (July 8, 2016).
---------------------------------------------------------------------------
As described in the summary of comments on this topic, the EPA is
finalizing the proposed changes to the definitions of clearest days,
deciview, deciview index, least impaired days, and visibility along
with additional changes we have determined are needed to further
clarify the definitions of most impaired days, visibility impairment,
regional haze, natural conditions, and natural visibility condition.
The additional changes to these proposed definitions are intended to
more clearly explain that impairment is from anthropogenic sources and
that natural sources and their contributions to visibility vary over
time. Additionally, the EPA is finalizing definitions for natural
visibility, baseline visibility condition, and current visibility
condition that we determined are needed to fully clarify the meanings
of these terms.
We are not finalizing the proposed change to the definition of a
Federal Class I area that would have stated that non-mandatory Federal
Class I areas are identified in 40 CFR part 52. There currently are no
non-mandatory Federal Class I areas and the reference to 40 CFR part 52
could have created confusion. The final definition of a mandatory Class
I Federal area correctly indicates that the mandatory areas are
identified in 40 CFR part 81 subpart D.
F. Impacts on Visibility From Anthropogenic Sources Outside the U.S.
1. Summary of Proposal
In the proposal, the EPA acknowledged that emissions (natural and
anthropogenic) from other countries and marine vessel activity in
waters outside the U.S. may impact Class I areas, especially those
areas near borders and coastlines. Prior to our proposal, several
states with such Class I areas requested that they be allowed to adjust
their URP line, visibility tracking metrics and RPGs to account for
international anthropogenic impacts when preparing SIPs and progress
reports.\105\ We therefore solicited comment on a proposed provision
that would allow states with Class I areas significantly impacted by
international anthropogenic emissions to adjust their URPs with
approval from the Administrator.\106\ The proposed
[[Page 3104]]
adjustment would consist of adding to the value of the natural
visibility condition for the 20 percent most impaired days in 2064 an
estimate of the average impact from international anthropogenic sources
on such days,\107\ for the sole purpose of calculating the URP.\108\ We
also solicited comment on another possible approach to accounting for
international anthropogenic impacts, in which the influence of
emissions from anthropogenic sources outside the U.S. would be removed
from estimates of 2000-2004 baseline visibility conditions, current
visibility conditions and the RPG for the end of an implementation
period.
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\105\ The impacts from natural sources located outside the U.S.
can be large in certain Class I areas, but because the RHR treats
impacts from all natural sources equally, those impacts are
inherently properly included in the 2000-2004 baseline condition
used as the starting point for the URP line and the natural
visibility condition used as the 2064 endpoint of the URP line.
Thus, the logical interest of these states was in a special
adjustment for the impacts of anthropogenic sources outside the U.S.
We note for clarity that under the final rule, prescribed fires
outside of the U.S. are considered anthropogenic sources and thus
the discussion in this section is relevant to such prescribed fires.
Prescribed fires in wildland are also addressed in Section IV.G of
this document.
\106\ The 1999 RHR provided that if a state found that
international emissions sources were affecting visibility conditions
in a Class I area or interfering with plan implementation, that
state could submit a technical demonstration in support of its
finding. If EPA agreed with the finding, it would ``take appropriate
action to address the international emissions through available
mechanisms.'' 64 FR 35714, 35747 (July 1, 1999).
\107\ The URP line is expressed in deciview units, so the value
added to the natural visibility condition would also be in
deciviews. However, that added deciview value would be based on the
light extinction increments caused by the indicated sources.
\108\ This proposed extra step in determining the URP was not
intended to have the effect of defining international anthropogenic
sources as natural, or to change any other aspect of SIP
development.
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The proposal reflected the EPA's position that it may be
appropriate to allow a state to adjust the RPG framework, including in
its progress reports, to avoid any perception that a state should be
aiming to compensate for impacts from international anthropogenic
sources and to avoid requiring a state to undertake the additional
analytical requirement under 40 CFR 51.308(f)(3)(ii) based solely on
visibility impairment due to international anthropogenic sources.
However, we proposed that an adjustment to compensate for such impacts
would be available only when and if these impacts can be estimated with
sufficient accuracy. In the proposal we stated that we do not expect
that explicit consideration of impacts from anthropogenic sources
outside the U.S. should or would actually affect the conclusions that
states make about what emission controls for their own sources are
necessary for reasonable progress. However, we explained that explicit
quantification of international anthropogenic impacts, if accurate,
could improve public understanding and effective participation in the
development of regional haze SIPs. We also indicated that while we had
not yet, at the time of the proposal, seen an approach that would allow
states to adjust their visibility tracking metrics with sufficient
accuracy, we expected that by the time some future periodic
comprehensive SIP revisions are to be prepared, methods and data for
estimating international anthropogenic impacts will be substantially
more robust. Our proposal did not include any statement about whether
EPA would provide estimates on international impacts or guidance on how
states can estimate such impacts.
2. Comments and Responses
Some commenters opposed allowing any adjustment to the URP, while
others supported some sort of adjustment based on the impacts of
international anthropogenic sources. Several commenters stated that the
EPA or other federal entities should provide an approach to estimating
international anthropogenic impacts, or actual estimates of such
impacts, that are presumptively approvable, or that the EPA should give
deference to any estimate a state develops. Some commenters inferred
that the EPA's statements in the proposal regarding the current state
of the art for estimating international anthropogenic impacts meant
that no state would be able to obtain EPA approval for an adjustment in
the SIP due in 2021. Several commenters objected to their understanding
that the proposed rule would require a state to obtain EPA approval for
a particular adjustment approach before including such an approach in
its SIP submission. Finally, at least one commenter requested that EPA
also provide rule language allowing for adjustment of the 20 percent
clearest days framework to reflect the impacts of international
anthropogenic sources.
The EPA does not have a near-term plan to develop guidance on
estimating international anthropogenic impacts or to provide such
estimates specifically for the purpose of regional haze SIPs. However,
the EPA is an active participant in research in this area and will
continue to share its work with interested states and with others.\109\
To clarify, the statements in the preamble regarding the state of the
art method refer to our assessment of the estimates and models for
estimating international impacts available in the scientific literature
at the time of this rulemaking. We did not intend to preclude or
prejudge consideration of estimates that states may include in SIPs for
the second implementation period or subsequent periods based on newer
and more refined methodologies and/or information. Although we do not
believe such estimates and models are currently able to adequately
represent the impacts of international anthropogenic sources on
visibility, we acknowledge that this is an area of active research and
development that may lead to adequate estimates in time for the
development of SIPs for the second implementation period. Additionally,
the final rule text includes a small change to clarify that the
Administrator's approval for an adjustment will be part of the
Administrator's review of the full SIP submission for an implementation
period, and not a separate action in advance of SIP submission. In this
way, the Administrator's decision to approve or not approve the
adjustment will be made in the context of the complete SIP submission,
with public notice and an opportunity to comment. As with any SIP
element, states are encouraged to consult with EPA Regional offices
during the development of any proposed adjustment approach.
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\109\ For example, the EPA held a 2-day workshop in February
2016 to advance the collective understanding of technical and policy
issues associated with background ozone, which includes impacts from
anthropogenic sources outside the U.S., as part of the agency's
ongoing efforts to engage with states and stakeholders on
implementation of the 2015 ozone NAAQS. While this workshop focused
on ozone, the modeling issues and approaches for ozone are similar
to those for visibility-impairing pollutants. More information on
the EPA's activities and current understanding of this area can be
found in the white paper available at https://www.epa.gov/ozone-pollution/background-ozone-workshop-and-information and other
documents available in EPA number EPA-HQ-OAR-2016-0097 at https://www.regulations.gov.
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Because the EPA is not providing estimates of international
anthropogenic impacts or guidance for calculating those impacts at this
time, we are not specifying that any such estimates or methodologies
are presumptively approvable. We further disagree with comments that
states have inherent discretion to adjust their URP and RPG frameworks
to account for impacts of international anthropogenic sources and that
the EPA lacks the authority to review such adjustments. As explained in
Section IV.B of this notice, the CAA mandates that the EPA promulgate
regulations requiring that states' SIP submittals contain, among other
things, ``measures as may be necessary to make reasonable progress
toward meeting the national goal.'' \110\ Furthermore, the EPA is
required to ensure that states' submittals meet the basic legal
requirements and objectives of the CAA, including any regulations the
agency promulgates for the purpose of ensuring that states make
reasonable progress towards achieving natural visibility. A proposed
adjustment to a state's RPG framework to address the impacts of
international anthropogenic sources has the potential to affect that
state's assessment of what constitutes reasonable progress. Thus, the
EPA not only has the authority to review a state's
[[Page 3105]]
proposed adjustment, it has an obligation to do so.
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\110\ CAA section 169A(b)(2).
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Finally, we disagree with the comment that we should provide rule
language for states to adjust their frameworks for assessing visibility
on the 20 percent clearest days to account for any impacts of
international anthropogenic sources. First, particular days on which
international anthropogenic sources have particularly strong impacts
due to unusual source events or transport conditions are unlikely to be
among the 20 percent clearest days in their respective years. The
commenter presented no basis for anticipating that increasing impacts
from anthropogenic sources on the clearest days might cause a state to
be unable to satisfy the no degradation requirement without employing
unreasonable measures for domestic sources. Second, our analysis
indicates that such an adjustment would not have been necessary in the
first implementation period, in that nearly all Class I areas in fact
have had no degradation during this period so far, and the few that
have experienced degradation have not done so because of impacts
attributable to international anthropogenic sources. Improvements in
visibility on the 20 percent clearest days have been significant enough
so that we expect that states impacted by increased emissions from
international anthropogenic sources in the second implementation period
will still be able to comply with the requirement that visibility on
those days show no degradation compared to 2000-2004 baseline
conditions. The RTC contains more information on this improvement
trend. The EPA will continue to assess this relationship throughout the
second and subsequent implementation periods. Third, on clear days when
there is relatively little visibility-impairing air pollution, it is
difficult with our current tools to discern the portion of that air
pollution originating from international anthropogenic sources, as
opposed to domestic anthropogenic or natural sources and as compared to
the assessment of the impact of international anthropogenic sources on
the most impaired days. It would thus be unlikely that a state could
estimate international anthropogenic impacts on the 20 percent clearest
days with the requisite degree of accuracy at this time or when
developing a SIP for the second implementation period.
3. Final Rule
The EPA is finalizing the provision to allow an adjustment of the
URP by adding an estimate for international anthropogenic impacts to
2064 natural visibility conditions. We are not finalizing the
alternative approach to accounting for international anthropogenic
impacts that would have involved removing the influence of emissions
from anthropogenic sources outside the U.S. when developing the
estimates of 2000-2004 baseline visibility conditions, current
visibility conditions and the RPGs. We are finalizing only one approach
to provide consistency and transparency, as the alternative approach
would have been more complicated and involved presenting numerous
counterfactual values of visibility levels that could be mistaken as
actual measured values.
Because this adjustment is permitted only if the Administrator
determines that a state has estimated the international impacts from
anthropogenic sources outside the U.S. using scientifically valid data
and methods, we are finalizing the rule text of 40 CFR
51.308(f)(1)(vi)(B) as proposed, with a small change to clarify
singular versus plural,\111\ as well as the aforementioned change to
clarify that the Administrator's approval for an adjustment will be
part of the Administrator's review of the full SIP submission for an
implementation period, and not a separate action in advance of SIP
submission.
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\111\ Our proposed rule text used the phrase ``the State must
add the estimated impacts [of international anthropogenic sources
(or certain prescribed fires)] to natural visibility conditions and
compare the resulting value to baseline visibility conditions.'' For
consistency with our final definitions, this part of the final rule
text instead refers to the natural visibility condition and the
baseline visibility condition. The use of the plural form for
``natural visibility conditions'' and ``baseline visibility
conditions'' could give the impression that multiple values of
impacts are to be added to multiple values of natural visibility
conditions, when actually a single value reflecting impacts from
international anthropogenic sources (or certain prescribed fires) is
to be added to the single value of the ``natural visibility
condition'' for the 20 percent most impaired days. The final rule
text does not specify that the average of estimates of daily
international impacts be used in this addition step, so that states
can propose and the Administrator can approve another statistic to
represent the distribution of daily values, for example the median
value, if more appropriate.
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In addition, we are finalizing the proposed rule text changes in 40
CFR 51.308(f)(1)(i) and 40 CFR 51.308(f)(1)(vi) to remove ``needed to
attain natural visibility conditions'' from the reference to ``uniform
rate of progress,'' because when adjusted to reflect international
impacts the ``uniform rate of progress'' would not be the rate of
progress that would reach true natural visibility conditions.
Because the manner in which a state with a Class I area calculates
the URP may affect other states with sources that contribute to
visibility impairment at the Class I area,\112\ we recommend that a
state seeking approval for such an adjustment first consult with
contributing states. Such an adjustment should also be a topic for the
required consultation with the FLM for the Class I area at issue.
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\112\ Contributing states may be affected because under the
final version of 40 CFR 51.308(f)(3)(iv)(B), a contributing state
will have an additional analytical requirement if the RPG does not
provide for the URP at an affected Class I area in another state.
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G. Impacts on Visibility From Wildland Fires
1. Summary of Proposal
Fires on wildlands within and outside the U.S. can significantly
impact visibility in some Class I areas on some days but have little to
no impact in other Class I areas. And even in those Class I areas
significantly impacted by fires on wildlands on some days, there are a
greater number of days where fires do not have such impacts. The EPA
presented an extensive discussion of wildland fire concepts, including
actions that the manager of a prescribed fire can take to reduce the
amount of smoke generated by a prescribed fire and/or to reduce public
exposure to the smoke that is generated (i.e., basic smoke management
practices), in the proposed and recently finalized revisions to the
Exceptional Events Rule.\113\ That discussion is not repeated here.
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\113\ 80 FR 72840 (November 20, 2015); 81 FR 68216 (October 3,
2016). Both the preamble and final rule of the Exceptional Events
Rule listed six basic smoke management practices with an important
footnote which recognizes that those listed are not intended to be
all-inclusive for the purpose of the Exceptional Events Rule.
Section IV.G.2 of this document discusses the term ``basic smoke
management practices'' in the context of the Regional Haze Rule.
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The preamble for our proposed action discussed at length how the
RHR relates to the management of wildland wildfires and wildland
prescribed fires. The information presented there is applicable to
states as guidance under these final RHR revisions, except as revised
or supplemented as follows. There were many public comments on the
subject of wildland fires, some of which are addressed in this section.
We address the remaining comments in the RTC document for this action.
We proposed new definitions for wildland, wildfire and prescribed
fire. These proposed definitions were consistent with the definitions
we had recently proposed be added to the Exceptional Events Rule. We
said in the proposal for the Exceptional Events Rule that wildland can
include
[[Page 3106]]
forestland, shrubland, grassland and wetlands, and that the proposed
definition of wildland includes lands that are predominantly wildland,
such as land in the wildland-urban interface. The proposed definition
for wildfire included a provision that a wildfire that occurs
predominantly on wildland is a natural event.
We also proposed language for new 40 CFR 51.308(f)(2)(vi)(E) based
on the provisions of the 1999 RHR's 40 CFR 51.308(d)(3)(v)(E), with
updates to reflect terminology used within the air quality and land
management communities. Specifically, we proposed to use the term
``basic smoke management practices'' to better align with current usage
of ``smoke management practices'' in the fire management community to
refer to steps that a burn manager can take to reduce emissions during
a prescribed fire. We also proposed to use the term ``wildland
vegetation management purposes'' in lieu of ``forestry management
purposes.'' This latter change was proposed in recognition of the fact
that not all wildland for which fire and smoke are issues is forested.
We also proposed to replace the phrase ``including plans as currently
exist within the State for these purposes'' with ``and smoke management
programs for prescribed fire as currently exist within the State.'' The
term ``smoke management program'' is used within the fire management
community to refer to a multi-participant program that seeks to
influence or regulate both whether and when prescribed fires are
conducted and, typically, the smoke management practices employed
during a prescribed fire. We stated in the preamble of the proposal
that this required consideration of smoke management programs only
applies if the existing smoke management program has six key features:
(i) Authorization to burn, (ii) minimizing air pollutant emissions,
(iii) smoke management components of burn plans, (iv) public education
and awareness, (v) surveillance and enforcement and (vi) program
evaluation.
We proposed that for a state with a long-term strategy that
includes a smoke management program for prescribed fires on wildland,
each required progress report must include a summary of the most recent
periodic assessment of the smoke management program including
conclusions the managers of the smoke management program or other
reviewing body reached in the assessment as to whether the program is
meeting its goals regarding improving ecosystem health and reducing the
damaging effects of catastrophic wildfires. (Comments on this proposal
are summarized in Section IV.H of this document.)
We proposed that the Administrator may approve a state's proposal
to adjust the URP to avoid subjecting a state to the additional
analytical requirement of 40 CFR 51.308(f)(3)(ii) due to the impacts of
wildland fire conducted with the objective to establish, restore and/or
maintain sustainable and resilient wildland ecosystems, to reduce the
risk of catastrophic wildfires, and/or to preserve endangered or
threatened species for purposes of ecosystem health (objectives that we
refer to here as ``wildland ecosystem health'') and public safety
during which appropriate basic smoke management practices were applied.
This aspect of the proposal did not address and did not apply to fires
of any type on lands other than wildland or to burning on wildland that
is for purposes of commercial logging slash disposal rather than
wildland ecosystem health and public safety. This aspect of the
proposal was not restricted to prescribed fires within the U.S.
We proposed to revise the definition of ``fire'' to remove the
phrase ``prescribed natural fire.'' However, we stated that the
definition of ``fire'' that would be revised appears in 40 CFR 51.301,
when it actually appears in 40 CFR 51.309(b)(4) and applies only to 40
CFR 51.309. We inadvertently did not make any change to 40 CFR
51.309(b)(4) in our proposed rule text. We proposed this revision to
remove ``prescribed natural fire'' from the ``fire'' definition because
the concept of a ``prescribed natural fire'' is inconsistent with our
proposal that all prescribed fires be considered anthropogenic sources.
We recognize that some prescribed fires are intended to emulate and/or
mitigate natural wildfires that would otherwise occur at some point in
time. We also recognize that some wildfires are appropriately allowed
to proceed for some time over an area without suppression in order to
help achieve land management objectives. However, to use the term
``natural'' and ``prescribed'' in one definition would cause confusion.
While the direction of these proposals was towards providing states
considerable flexibility regarding measures to limit emissions from
wildland prescribed fire after having given reasonable consideration to
their options, it was not and is not our intention to in any way
discourage federal, state, local or tribal agencies or private land
owners from taking situation-appropriate steps to minimize emissions
from prescribed fires on wildland or prescribed fires on other types of
land.
2. Comments and Responses
With regard to the definitions of prescribed fire and wildfire and
the related question of whether each type of wildland fire should be
considered as an anthropogenic versus non-anthropogenic event or
source, some commenters said that all wildland prescribed fires, or at
least all prescribed fires conducted under a smoke management program,
should be treated as non-anthropogenic. Other commenters said that all
or some wildfires should be treated as anthropogenic, noting that the
occurrence of wildfires is not purely natural in that past human
actions have affected fire risks and that current actions by humans
initiate some wildfires. We disagree with these and similar comments.
We recognize that prescribed fires in many cases are conducted because
natural wildfires have been previously suppressed, or as a substitute
for waiting for a wildfire to take place because conditions are such
that a wildfire would pose high risks. We also recognize that human
actions, in particular the suppression of wildfires in the past, have
affected the propensity of some wildlands to experience wildfires from
natural ignition sources such as lightning and that human actions such
as arson or careless smoking, fireworks, target practice or backyard
burning are the sources of the ignition of many wildland wildfires.
Thus, there is some basis for the perspective that prescribed fires
merit being treated somewhat like natural sources, as well as for the
opposite view that wildfires merit being treated somewhat as
anthropogenic sources. However, by declaring in section 169A(a) of the
CAA a national goal of remedying visibility impairment in Class I areas
``which impairment results from man-made air pollution,'' Congress
established a bifurcation between anthropogenic and non-anthropogenic
sources of air pollution. Given that prescribed fires involve conscious
planning by humans, it would be unreasonable for the rule to
categorically consider them to be natural events and natural sources of
air pollution.\114\ We consider wildfires
[[Page 3107]]
having natural causes of ignition to be natural sources of air
pollution. The provision that a wildfire that occurs predominantly on
wildland is a natural event also encompasses wildfires initiated by
human action because it is not always possible to determine the cause
of ignition for some wildfires, and because once ignited the progress
of these wildfires is largely determined by factors beyond human
control at the time. Therefore, it is appropriate to treat both
wildland wildfires with natural sources of ignition and the other types
of wildfires encompassed by the definition in 40 CFR 51.301 as natural
events and natural sources of air pollution.
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\114\ As explained in footnote 95, the rationale for allowing an
adjustment of the URP framework to address the impacts of wildland
prescribed fires does not stem from the fact that we are treating
these fires as natural sources of air pollution, as this is not the
case. Rather, we are providing for an adjustment because we
acknowledge that anthropogenic prescribed fire conducted for
purposes of ecosystem health and public safety during which
appropriate basic smoke management practices have been applied can
be consistent with the goal of making reasonable progress towards
natural visibility.
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These categorizations do not mean that prescribed fires necessarily
should or can be regulated in a manner similar to sources that are more
purely anthropogenic, such as industrial sources, or that no
consideration should be given to how human actions affect wildfire
occurrence. For the regional haze program, an implication of these
categorizations is that states are not required to consider additional
measures to reduce visibility impacts from wildfires when they develop
their regional haze SIP submissions. However, we believe that it is in
the public interest for states, and all managers of wildland, to
consider such measures to limit wildfire impacts on visibility on an
ongoing basis. We encourage them to do so, to help improve visitor
experiences in Class I areas, to protect public safety and health and
to protect ecosystems from the impacts of catastrophic wildfires. We
also believe that it is in the public interest for states, and all land
managers using prescribed fire, to consider measures that can reduce
the impact of prescribed fires on visibility in Class I areas and other
air quality objectives. As they consider measures to reduce the impacts
of prescribed fires on visibility, states may consider the benefits of
wildland prescribed fire use (including benefits to ecosystem health
and reduction in the risk of catastrophic wildfires) and the
opportunity provided by the final rule for a state to make an
adjustment to the URP to account for the impact of certain prescribed
fires.
Regarding the proposal that would allow the Administrator to
approve an adjustment to the URP for impacts from at least some
wildland prescribed fires, some comments were in favor of this
provision while others suggested minor changes to the proposed
approach. Many comments did not support all the specifics of our
proposal for adjustment of the URP. Many commenters also said that the
EPA or the FLMs should provide guidance on how to estimate prescribed
fire impacts for the purposes of this adjustment and/or provide the
adjustment values themselves.
Of those commenters who did not support all the specifics of our
proposal, one commenter said that states should be required to apply
the four statutory factors to prescribed fire in order to be eligible
to make any adjustment to the URP for prescribed fire impacts. Other
commenters said that adjustment should be allowed only for prescribed
fires conducted in accordance with any applicable smoke management
program. However, other commenters said that an adjustment should be
allowed to reflect the impacts of all types of prescribed fire and not
merely those that met the conditions proposed by the EPA based on
ecosystem or public health protection and use of basic smoke management
practices.
We disagree with commenters that the adjustment of the URP should
be based on the impact of all prescribed fires, or all wildland
prescribed fires, rather than only wildland prescribed fire conducted
for purposes of ecosystem health and public safety during which
appropriate basic smoke management practices have been applied. The
fires that meet these conditions are fires conducted for purposes and
in accordance with practices that are consistent with the goal of
making reasonable progress towards natural visibility. We note,
however, that the availability of an adjustment to the URP for the
impacts of these particular prescribed fires does not in any way
restrict a state from considering additional measures or management
programs to address their impacts on visibility. We recommend that as a
state considers such measures, it should consult with managers of
federal, state and private lands that would be subject to such
measures; this may include federal agencies in addition to the federal
land manager of the Class I areas affected by sources in the state,
with whom consultation on the development of the SIP is a requirement
of the final rule. Furthermore, it is appropriate that for prescribed
fires conducted on lands other than wildlands, wildland fires conducted
for other purposes and wildland fires conducted without application of
basic smoke management practices, the URP should assume their impacts
will diminish to zero by 2064, just as the URP effectively assumes with
respect to other types of anthropogenic sources within the U.S.\115\
This will focus public and state attention on whether there are any
reasonable measures for reducing impacts from these other types of
prescribed fires. We also disagree with other commenters who
recommended that the adjustment be more restrictive and apply only to
prescribed fires conducted in compliance with a smoke management
program, because this would make the adjustment unavailable to some
states where it would be consistent with the goal of making reasonable
progress and where an adjustment would be an appropriate efficiency and
public communication approach.
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\115\ If there is no adjustment of the 2064 endpoint of the URP
line for impacts from international anthropogenic sources, the URP
effectively assumes that emissions from these sources will be zero
in 2064. If there is an adjustment, the URP effectively assumes that
these sources continue to have emissions in 2064.
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We also disagree with commenters that states should be required to
conduct a four-factor analysis for prescribed fire before being
eligible to adjust their URPs for the impacts of such fires. As we
explained earlier, we are limiting the availability of an adjustment to
only those wildland prescribed fires conducted for the purposes of
ecosystem health and public safety and in accordance with basic smoke
management practices. These particular types of fires are generally
consistent with the goal of making reasonable progress because they are
most often conducted to improve ecosystem health and to reduce the risk
of catastrophic wildfires, both of which can result in net beneficial
impacts on visibility.\116\ Therefore, as
[[Page 3108]]
long as these fires are conducted in accordance with basic smoke
management practices, an additional four-factor analysis in this
specific case might serve no purpose. States may consider additional
measures to address the impacts of these and other types of prescribed
fires, on the basis of a formal four-factor analysis if they choose or
after another form of consideration.\117\
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\116\ There is similarity and a difference in the rationales for
an adjustment of the URP related to impacts from anthropogenic
sources outside the U.S. and an adjustment related to impacts from
wildland prescribed fire conducted for reasons of ecosystem health
and public safety with appropriate basic smoke management practices
applied. Because states cannot control and should not be expected to
compensate for impacts from international anthropogenic sources,
such international impacts should not be the sole reason that the
RPG is above the URP line. In contrast, states generally have
authority to regulate wildland prescribed fires within their
borders. However, because it is generally reasonable for wildland
prescribed fires of the type described to be conducted as determined
to be needed through appropriate planning processes, with
appropriate basic smoke management practices to reduce smoke impacts
on the public, states should have the flexibility to determine that
limiting the number of such wildland prescribed fires is not
necessary for reasonable progress. SIP development can be more
efficient and the public will better understand the progress being
made to control other types of sources if the URP is adjusted to
remove the influence of any projected increase in application of
this type of wildland prescribed fire. Also, as with international
anthropogenic impacts, this will avoid such fire impacts from being
a critical factor in whether the RPG is above the URP line.
\117\ Another way of considering whether measures in addition to
BSMP are appropriate for prescribed fires conducted to improve
ecosystem health and to reduce the risk of catastrophic wildfires,
and/or considering what measures are appropriate for other types of
prescribed fires, could be to assess and conclude that a particular
subcategory of prescribed fires does not meaningfully impact
visibility at any Class I area. Such a conclusion could support a
decision not to require additional measures for that subcategory in
the LTS even though a formal four-factor analysis has not been
completed. A state might also include in its LTS measures aimed at
reducing impacts from a subcategory of prescribed fire because those
measures are already in effect in the state due to another CAA
requirement or due to state-only considerations. If so, a new formal
four-factor analysis of those measures would not be useful.
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One commenter suggested that an adjustment for the impacts of
prescribed fires also be allowed as part of the demonstration that the
long-term strategy and RPGs ensure no degradation on the clearest days.
We disagree with this suggestion. First, the impacts from prescribed
fires will necessarily be small on the clearest days. The commenter
presented no basis for anticipating that increasing impacts from
prescribed fire on the clearest days might cause a state to be unable
to satisfy the no degradation requirement without employing
unreasonable measures for other source types. Second, our analysis
indicates that such an adjustment would not have been necessary in the
first implementation period, in that nearly all Class I areas in fact
have had no degradation during this period so far, and the few that
have experienced degradation have not done so because of impacts
attributable to prescribed fire. Improvements in visibility on the 20
percent clearest days have been significant enough so that we expect
that states impacted by increased emissions from prescribed fire in the
second implementation period will still be able to comply with the
requirement that visibility on those days show no degradation compared
to 2000-2004 baseline conditions. The RTC contains more information on
this improvement trend. The EPA will continue to assess this
relationship throughout the second and subsequent implementation
periods. Finally, on clear days when there is relatively little
visibility-impairing air pollution, it is difficult with our current
tools to discern the portion of that air pollution originating from
prescribed fire, as opposed to the assessment of the impact of
prescribed fire on the most impaired days. It would thus be unlikely
that a state could estimate prescribed fire impacts on the 20 percent
clearest days with the requisite degree of accuracy at this time or
when developing a SIP for the second implementation period.
Regarding our proposal to use updated terminology in proposed 40
CFR 51.308(f)(2)(vi)(E), some commenters said that ``basic smoke
management practices'' was not the appropriate update of the term
``smoke management techniques'' because the latter term is not
explicitly restricted to ``basic'' techniques. We disagree with the
commenter that the phrase ``basic smoke management practices'' could be
interpreted as requiring a state to consider a narrower set of
practices than the phrase ``smoke management techniques.'' The EPA
listed six basic smoke management practices in both the preamble and
final rule of the Exceptional Events Rule with an important footnote
which recognizes that those listed are not intended to be all-inclusive
for the purposes of the Exceptional Events Rule. We similarly consider
the term ``basic smoke management practices'' in the context of the
Regional Haze Rule as allowing for additional basic smoke management
practices to be developed to address Class 1 visibility impacts. In
addition, this paragraph of the Regional Haze Rule specifies what a
state at a minimum must consider, and a state may consider other
measures as well. Accordingly, the final rule text in 308(f)(2)(iv)(D)
contains the phrase ``basic smoke management practices.''
No commenters opposed the use of ``and smoke management programs''
in proposed 40 CFR 51.308(f)(2)(vi)(E) in place of ``including plans''
in 40 CFR 51.308(d)(3)(v)(E). However, there were other comments on
proposed 40 CFR 51.308(f)(2)(vi)(E) that concern the proposed retention
and meaning of the phrase ``as currently exist within the State for
these purposes.'' One commenter supported the concept that only states
with existing smoke management programs should be subject to this
specific requirement to consider smoke management programs. Another
commenter said that even with this restricted applicability, the
requirement to consider smoke management programs was too prescriptive
and states should be allowed to apply the same consideration to
prescribed fires as generally apply for all sources. One group of
commenters opposed the restriction to only states with existing smoke
management programs, and further suggested that listing only smoke
management practices and smoke management programs was insufficient and
that the rule should also require all states to consider other measures
to mitigate the impact of fire.
After consideration of these comments and a review of how the EPA
and the states have applied 40 CFR 51.308(d)(3)(v)(E) during the first
implementation period, we decided that finalization of the phase ``as
currently exist with the State for these purposes'' cannot be said to
clearly be only a preservation of the existing requirement of the 1999
RHR, particularly when combined with the replacement of ``including
plans'' with ``and smoke management programs.'' In the first
implementation period the EPA never relied on a narrow interpretation
of the applicability of this part of 40 CFR 51.308(d)(3)(v)(E) in
reviewing a SIP. The final rule does not include the phrase ``as
currently exist with the State for these purposes'' because we have
decided that there is no rational basis for the restriction.\118\
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\118\ Given the removal of the phrase ``as currently exist
within the state,'' the interpretation we articulated in the
proposal that this phrase refers only to smoke management programs
with the six listed features listed in the proposal is no longer
relevant.
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The final version of 40 CFR 51.308(f)(2)(iv)(D) (renumbered)
requires that states consider basic smoke management practices and
smoke management programs when developing their long-term strategies.
As discussed in the preamble to our proposed action,\119\ these
requirements do not require a state to adopt basic smoke management
practices or programs into its regional haze SIP.\120\ As states
consider whether to adopt new measures that might affect the ability of
land managers to use prescribed fire, they may newly consider both the
effectiveness of their smoke management programs in protecting
visibility and the benefits of wildland prescribed fire for ecosystem
health and public safety. There are many ways that a state can give new
consideration to such practices and programs. For example, a state can
consider the need for including such measures in its SIP without
shoehorning them into a formal four-factor analysis. A state can also
consider them by determining based on analysis of IMPROVE data that
fires in general, and thus prescribed fires in
[[Page 3109]]
particular, are not a significant contributor to reduced visibility at
the Class I areas in the state (or impacted by the state). Therefore,
this requirement of the final rule will not impose a difficult
analytical burden on states or require them to adopt unreasonable
measures. However, a state cannot unreasonably determine that a
requirement for burn managers to use certain basic smoke management
practices is not necessary to make reasonable progress. If a state
determines that a requirement for burn managers to use certain smoke
management practices is necessary to make reasonable progress, the
long-term strategy must include such measure(s) in enforceable form.
The same applies to consideration of a smoke management program. One
possible outcome may be that a state reasonably does not make such a
formal determination, but nevertheless decides to revise its current
program regarding prescribed fires without incorporating the program
(or the program enhancements) into the SIP. Such an action could
indicate that the state has satisfied the requirement to consider basic
smoke management practices and smoke management programs.
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\119\ See 81 FR 26958-59.
\120\ Also, the EPA is not recommending that all states adopt
any particular measures for wildland fire because situations vary
too much from state to state and within states for any general
recommendation to be appropriate.
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States also have the flexibility to allow reasonable use of
prescribed fire. As previously noted, one approach to reducing the
occurrence of wildland wildfires, and the risk of wildfires having
catastrophic impacts, is appropriate use of prescribed fire. The EPA
and the federal land management agencies will continue to work with the
states as they consider how use of prescribed fire may reduce the
frequency, geographic scale and intensity of natural wildfires, such
that vistas in Class I areas will be clearer on more days of the year,
to the enjoyment of visitors. States may also consider how the use of
prescribed fire on wildland can benefit ecosystem health, protect
public health from the air quality impacts of catastrophic wildfires
and protect against other risks from catastrophic wildfires. These
final rule revisions give states that have considered these factors,
and other relevant factors, the flexibility to provide and plan for the
use of prescribed fire, with basic smoke management practices applied,
to an extent and in a manner that states and the EPA believe
appropriate. The EPA is committed to working with states, tribes,
federal land managers, other stakeholders and other federal agencies on
matters concerning the use of prescribed fire, as appropriate, to
reduce the impact of wildland fire emissions on visibility.
3. Final Rule
We are finalizing the fire-related definitions as proposed,
including the revision of the definition of ``fire'' in 40 CFR
51.309(b)(4), with one change from proposal. We are finalizing a
different definition of ``wildfire'' than we proposed. The final
revised definition of a wildfire includes ``a prescribed fire that has
developed into a wildfire'' instead of the proposed language ``a
prescribed fire that has been declared to be a wildfire.'' Two comments
in this rulemaking objected to or asked for clarification of the
meaning of the ``declared to be a wildfire'' portion of the definition.
The definition of wildfire being finalized for the RHR in this final
action is the same definition as recently finalized for the revised
Exceptional Events Rule, as commenters in both rulemakings raised
similar concerns about the proposed definition. Consistent with the
approach taken in the final revised Exceptional Events Rule, we
concluded that whether a prescribed fire should be treated as a
wildfire for regional haze program purposes depends on the facts of the
situation. Specifically, the final definition includes the phrase ``a
prescribed fire that has developed into a wildfire,'' which means a
prescribed fire that has ``developed in an unplanned way such that its
management challenges are essentially the same as if it had been
initiated by an unplanned ignition.'' See 81 FR 68250. While we
proposed, and are finalizing, a definition of ``wildfire'' that
includes a statement that a wildfire that predominantly occurs on
wildland is a natural event, we do not intend to restrict a wildfire on
other types of land from also being treated as a natural event or
source, based on specific facts about the wildfire.
We are also finalizing 40 CFR 51.308(f)(3)(ii) as proposed to
provide an adjustment to the URP framework for the 20 percent most
impaired days due to the impacts of wildland fire conducted with the
objective to establish, restore and/or maintain sustainable and
resilient wildland ecosystems, to reduce the risk of catastrophic
wildfires, and/or to preserve endangered or threatened species for
purposes of ecosystem health and public safety during which appropriate
basic smoke management practices were applied. Such an adjustment is
not available for fires of any type on lands other than wildland or to
burning on wildland that is for purposes of commercial logging slash
disposal rather than wildland ecosystem health and public safety.
We are also finalizing the term ``basic smoke management
practices'' as an update of the term ``smoke management techniques'' in
40 CFR 51.308(f)(2)(iv)(D) (renumbered). We are also finalizing the use
of ``smoke management programs'' where the 1999 RHR used the term
``plans.'' The final rule differs from the proposal in that it does not
include the phrase ``as currently exist within the State for these
purposes.''
This action also deletes the obsolete and duplicative definition of
``base year'' in 40 CFR 51.309(b)(8) and reserves that section number.
The definition of ``base year'' in 40 CFR 51.309(b)(7) is the operative
definition for this section of the RHR. The definition being deleted
refers to 40 CFR 51.309(f) which is reserved in the current rule.
H. Clarification of and Changes to the Required Content of Progress
Reports
1. Summary of Proposal
The proposed rule detailed additional revisions to 40 CFR 51.308(g)
in order to clarify the substance of the regional haze progress
reports, given ambiguities in the 1999 RHR with respect to, among other
things, the period to be used for calculating current visibility
conditions, and whether forward-looking, quantitative modeling is
required in the progress reports to assess whether RPGs will be met.
These proposed revisions were numerous and often independent of one
another, and are summarized briefly as follows.
A proposed revision to the opening portion of 40 CFR 51.308(g)
would have required that a state provide the public with a 60-day
comment period on a draft progress report that is not a SIP revision,
before submitting it to the EPA. The 1999 RHR did not explicitly say
that a public comment period was required for progress reports, because
other EPA rules require public notice for all SIP revisions and under
the 1999 RHR progress reports have been SIP revisions.
Proposed revisions to 40 CFR 51.308(g)(3)(ii) added a number of
explanatory sentences to better indicate what ``current visibility
conditions'' are and how to calculate them, given that it is not clear
what ``current visibility conditions'' are in the 1999 RHR.
Practicality requires that ``current conditions'' should mean
``conditions for the most recent period of available data.'' \121\ The
proposed text also made
[[Page 3110]]
clear that the period for calculating current visibility conditions is
the most recent rolling 5-year period for which IMPROVE data are
available as of a date 6 months preceding the required date of the
progress report, given our belief that (since we also proposed that
progress reports no longer be submitted as SIP revisions) this period
would be sufficient for states to incorporate the most recent available
data into their progress reports.\122\ We also invited comment on other
specific appropriate timeframes, including 3 months, 9 months and 12
months.
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\121\ In our guidance on the preparation of progress reports,
the EPA indicated that for ``current visibility conditions,'' the
reports should include the 5-year average that includes the most
recent quality assured public data available at the time the state
submits its 5-year progress report for public review. See section
II.C of General Principles for the 5-Year Regional Haze Progress
Reports for the Initial Regional Haze State Implementation Plans,
April 2013.
\122\ Note that we are not proposing this specification of 6
months for the progress report aspects of a periodic comprehensive
SIP revision (see Section IV.E of this document), in light of the
longer time needed for administrative steps between completion of
technical work and submission to the EPA.
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Proposed revisions to 40 CFR 51.308(g)(3)(iii) were designed to
remedy a gap in the 1999 RHR, which failed to make clear what the
``past 5 years'' are for assessing the change in visibility impairment.
We proposed to delete the ``past 5 years'' text and replace it with
text indicating the change in visibility impairment is to be assessed
over the span of time since the period addressed in the most recent
periodic comprehensive SIP revision. The EPA believed this would remedy
the issue that, because of data reporting delays, the period covered by
available monitoring data will not line up with the periods defined by
the submission dates for progress reports, and would ensure that each
year of visibility information is included either in a periodic
comprehensive SIP revision or the progress report that follows it. We
proposed to make the same change to the 1999 RHR's ``past 5 years''
text in the first sentence of 40 CFR 51.308(g)(4) for the purposes of
reporting changes in emissions of pollutants contributing to visibility
impairment, for similar reasons.
We proposed several other revisions, particularly to 40 CFR
51.308(g)(4), to revise and clarify the states' obligations regarding
emissions inventories. One issue was that the 1999 RHR's text seemingly
required a state to project emissions inventories to the end of the
``applicable 5-year period'' whenever that endpoint is not the year of
a triennial inventory (2011, 2014, etc.) required by 40 CFR part 51
subpart A (Air Emissions Reporting Requirements). For a variety of
reasons more fully explained in the preamble to our proposal, we
proposed text changes that explain clearly that states must include in
their progress reports the emissions, by sector, from all sources and
activities up to the triennial year for which information has already
been submitted to the NEI. With regard to emissions data for EGUs,
states would need to include data up to the most recent year for which
the EPA has provided a state-level summary of such EGU-reported data.
Finally, the last sentence of the proposed text for 40 CFR 51.308(g)(4)
made clear that if emission estimation methods have changed from one
reporting year to the next, states need not backcast (i.e., use the
newest methods to repeat the estimation of emissions in earlier years)
in order to create a consistent trend line over the whole period, since
although some states expressed concern that other parties may interpret
the 1999 RHR as requiring it, the EPA has never expected states to
backcast in this context.
We also proposed changes to 40 CFR 51.308(g)(5), which requires
assessments of any significant changes in anthropogenic emissions that
have occurred, consistent with our proposed changes to other sections.
Specifically, we proposed to delete the reference to the ``past 5
years'' and instead direct states that the period to be assessed
involves that since the last periodic comprehensive SIP revision. We
also proposed text that would require states to report whether these
changes were anticipated in the most recent SIP, given that this would
assist the FLMs, the public and the EPA in understanding the
significance of any change in emissions for the adequacy of the SIP to
achieve established visibility improvement goals.
The EPA further proposed to renumber the 40 CFR 51.308(g)(6) of the
1999 RHR as 40 CFR 51.308(g)(7), and proposed to change that provision
to clarify that the RPGs to be assessed are those established for the
period covered by the most recent periodic comprehensive SIP revision.
The proposed change did not alter the intended meaning of this section,
and simply clarified that in a progress report, a state is not required
to look forward to visibility conditions beyond the end of the current
implementation period.
The proposed, new 40 CFR 51.308(g)(6) included a provision
requiring a state with a long-term strategy that includes a smoke
management program for prescribed fires on wildland to include in each
required progress report a summary of the most recent periodic
assessment of the smoke management program, including conclusions that
were reached in the assessment as to whether the program is meeting its
goals regarding improving ecosystem health and reducing the damaging
effects of catastrophic wildfires.
A final proposed change to 40 CFR 51.308(g) removed the provisions
of 40 CFR 51.308(g)(7) of the 1999 RHR entirely, relieving the state of
the need to review its visibility monitoring strategy within the
context of the progress report, a change that had been requested by
many states during our pre-proposal consultations. Such a change was
appropriate since all states currently rely on their participation in
the IMPROVE monitoring program (and expect to continue to do so), so
continuing the requirement for every state to submit a distinct
monitoring strategy element in each progress report would consume state
and EPA resources with little or no practical value for visibility
protection.
Finally, we proposed minor changes to 40 CFR 51.308(h) and 40 CFR
51.308(i). Proposed changes to 40 CFR 51.308(h) regarding actions the
state is required to take based on the progress report merely removed
the implication that all progress reports are to be submitted at 5-year
intervals, and aimed to improve public understanding of the declaration
that a state must make when it determines that no SIP revisions are
required. The proposed changes to 40 CFR 51.308(i) created a stand-
alone requirement that states must consult with FLMs regarding progress
reports because the 1999 RHR only applies FLM consultation requirements
to SIP revisions (and the proposal would remove the formal SIP revision
requirement from progress reports).
2. Comments and Responses
Several commenters pointed out that while there is no explicit
provision in the 1999 RHR for the public to comment prior to the
submission of progress reports for the first implementation period,
which are required to be SIP revisions, other provisions in EPA rules
require states to provide at least a 30-day notice to the public on any
type of SIP revision, in contrast to the 60-day period we proposed to
require for progress reports that are not SIP revisions. The commenters
generally opposed the longer period and noted that it, in combination
with the requirement to consult with FLMs well ahead of the start of
public comment, would make it more difficult to meet the requirement
that progress reports contain emissions and air quality
[[Page 3111]]
information no older than 6 months. We agree that retaining the current
requirement for a 30-day public comment period is appropriate and are
finalizing that period. States may provide a longer comment period,
either initially or upon request, and we recommend that states do so
when it would not prevent timely submission to the EPA.
Some commenters opposed the proposed provision in 40 CFR
51.308(g)(3)(ii) making clear that the period for calculating current
visibility conditions is the most recent rolling 5-year period for
which IMPROVE data are available as of a date 6 months preceding the
required date of the progress report. As discussed previously, we also
invited comment on other specific timeframes, and most of these
commenters felt 12 months to be a more appropriate timeframe. However,
in general these comments pointed specifically to the proposed
provision requiring consultation with FLMs 60 to 120 days prior to a
public hearing or other public comment opportunity on progress reports,
and/or pointed to the proposed requirement for a 60-day public comment
opportunity, as the reason for a 12-month period for IMPROVE data
availability. However, as noted elsewhere in this document these two
review/comment periods are not being finalized as proposed. In
addition, the argument of several commenters that 6 months is an
insufficient period to incorporate IMPROVE data even without the
extended FLM consultation period was not well supported. Therefore, the
EPA does not find these comments persuasive given the other content of
the final rule.
One commenter on the proposed 40 CFR 51.308(g)(3)(ii) noted that
given the fact that progress reports for the first implementation
period have often not been submitted on time, the EPA should adjust the
language of the rule text such that the period for calculating current
visibility conditions should be based on the later of the required date
or submittal date of the progress report. The EPA disagrees with this
assessment because this could create a situation requiring a state to
re-analyze data (and substantially re-draft portions of a progress
report) in situations where submittal of a progress report is delayed
for valid or unforeseeable reasons. We note that there will be other
avenues for the public and the EPA to obtain the most recent IMPROVE
data if a late progress report does not have the most current
information.
Comments on the proposed revisions to 40 CFR 51.308(g)(4) regarding
emissions tracking were numerous and varied, with many commenters
expressing reservations about the proposed text. In general, these
commenters asked that the EPA either not require states to use NEI data
unless such data are available in final form a minimum of 12 months
prior to the due date of the progress report, or that states should use
the most recent final NEI data available at the time the progress
report is prepared. In response, we want to reiterate that our proposal
addressed only the requirement for the time period for the emissions
information to be included in a progress report. We did not propose to
require that the emissions data actually submitted to or contained in
any version of the NEI be used in a progress report. Our intention is
that a state have the flexibility to update and revise such data prior
to presenting it in a progress report, but not the flexibility to limit
its presentation to only emissions information for earlier years.\123\
Second, we acknowledge that, as proposed, this subsection could be
interpreted to trigger a requirement to present emissions data for a
certain year should data for that year be made available for the first
time the day before the planned submission of a progress report. We are
therefore finalizing additional text in 40 CFR 51.308(g)(4) (similar to
text proposed and being finalized in 40 CFR 51.308(g)(3)) making clear
that only NEI emissions data submitted by the state to the
Administrator (or, in the case of data submitted directly by sources to
a centralized emissions data system, made available in a state-level
summary by the Administrator) at least 6 months prior to the due date
for the progress report triggers the requirement that the progress
report include emissions information for that year.
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\123\ This point about updating and revising data for a
particular year also applies to emissions information made available
by the Administrator in a state-level summary. It is possible that a
state may have more recent, more complete or more accurate data for
its sources than the Administrator has been able to include in his
or her state-level summary for a particular year.
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Proposed changes to 40 CFR 51.308(g)(5) involving assessments of
any significant changes in anthropogenic emissions that have occurred
since the period addressed in the last SIP revision were generally well
received, however, one commenter asked that the EPA require additional
specificity in this assessment. The EPA did not make any changes in
response to this comment because the rule we are finalizing already
includes the required information.
Comments on the proposed, new 40 CFR 51.308(g)(6) regarding a
progress report including a summary of the most recent periodic
assessment of any existing smoke management program that is part of the
long-term strategy were numerous, with some commenters generally
favoring and all but one state opposing this additional rule provision.
The comments in opposition to the new provision appear to interpret it
as creating a requirement that states periodically assess their smoke
management programs and whether these programs are meeting their goals.
However, the proposed provision was not intended to create any such
requirement. It merely intended that if there is a smoke management
program in the long-term strategy that already has a periodic program
assessment element, the findings and recommendation of the most recent
assessment must be summarized in the regional haze progress report. We
are finalizing small changes from the proposed provision to make this
intention clear. We reiterate that we interpret this provision to only
apply to smoke management programs that have been made part of the
long-term strategy in the regional haze SIP, and only to programs that
have a program evaluation element. A state that has such a smoke
management program and has included its program in its regional haze
SIP has acknowledged that management of smoke is a significant concern
with respect to visibility. Providing the public with easy access to a
summary of the most recent program assessment via the regional haze
progress report will facilitate public participation in the state's
development of its next SIP revision. The benefit of including a
summary of the program assessment for a smoke management program that
is not part of the SIP in the progress report, if there has been a
program assessment, may be less, and we believe a state should have
flexibility to include or not include such a summary in its progress
report.
Regarding the proposed 40 CFR 51.308(g)(7) (which as proposed was
simply a modified version of the 1999 RHR's 40 CFR 51.308(g)(6) that
clarified that a progress report's required assessment of whether a SIP
is sufficient to meet established RPGs should address the RPGs defined
for the end of the particular implementation period), the few comments
received from states indicated a general opposition to the requirement
to evaluate SIP adequacy to meet RPGs. The EPA did not propose to
remove this function of the progress reports, so comments in favor of
removing it are outside the scope of this rulemaking.
[[Page 3112]]
The proposed removal of the provisions of the 1999 RHR's 40 CFR
51.308(g)(7), designed to relieve the state of the need to review its
visibility monitoring strategy within the context of the progress
report, received few comments, but was generally opposed by
conservation organization commenters and favored by state commenters.
With respect to the progress reports that will be due in the second and
subsequent implementation period, the reasoning for eliminating these
provisions as explained in the proposal remains valid even in light of
the comments received. However, upon further consideration it is
appropriate to leave in place the requirement for a monitoring strategy
element for the remaining progress reports due in the first
implementation period, as many progress reports have already been
submitted and many others are well under development. Being consistent
with respect to this requirement for all progress reports during the
first implementation period will not be a significant burden on the
states. We have not disapproved the monitoring strategy element of any
progress report to date.
The RTC responds to these comments in more detail.
Public comments on 40 CFR 51.308(i) regarding the requirement for
consultation with FLMs on progress reports are discussed elsewhere in
this document.
3. Final Rule
The EPA is finalizing all of the rule text detailed in the
preceding discussion as proposed with changes. Instead of removing the
1999 RHR's 40 CFR 51.308(g)(7) regarding monitoring strategies
entirely, we are retaining it but making it applicable only to progress
reports for the first implementation period. With the retention of 40
CFR 51.308(g)(7), the numbering of other sections in the final rule is
different than proposed and is consistent with the numbering in the
1999 RHR. We are revising the opening text of 40 CFR 51.308(g) to make
the required public comment period be 30 days rather than 60 days. We
are revising 40 CFR 51.308(g)(4) to provide a 6-month grace period for
the trigger of the requirement to include emissions information for a
recent year. The final version of new 40 CFR 51.308(g)(8) (numbered as
(g)(6) in the proposal) has been revised from the proposal to clarify
its applicability.
We are finalizing rule text in 40 CFR 51.308(g)(7) that makes it
clear that all remaining progress reports for the first implementation
period submitted after these rule revisions are finalized must address
the monitoring strategy, as has been the requirement of the 1999 RHR
for progress reports already submitted. A progress report for the
second or a subsequent implementation period will not have to address
the monitoring strategy.
I. Changes to Reasonably Attributable Visibility Impairment Provisions
1. Summary of Proposal
The EPA proposed extensive changes to 40 CFR 51.300 through 51.308
with regard to reasonably attributable visibility impairment. The
motivation for these changes was discussed in detail in the proposal.
In summary, in the time since the reasonably attributable visibility
impairment provisions were originally promulgated in 1980, advances in
ambient monitoring, emissions quantification, emission control
technology and meteorological and air quality modeling have been built
into the regional haze program, such that state compliance with the
RHR's requirements will largely ensure that progress is made towards
the goal of natural visibility conditions. Therefore, some aspects of
the reasonably attributable visibility impairment provisions of the
visibility regulations have less potential benefit than they did when
they originally took effect. These provisions have received few
revisions over the years resulting in a substantial amount of confusing
and outdated language within the current visibility regulations
including seemingly overlapping and redundant requirements. While there
have historically been very few certifications of existing reasonably
attributable visibility impairment by an FLM, in several situations a
certification by an FLM has ultimately resulted in new controls or
changes in source operation.
The EPA therefore proposed to (1) eliminate recurring requirements
on states that we believe have no significant benefit for visibility
protection; (2) clarify and strengthen the 1999 RHR's provisions under
which states must address reasonably attributable visibility impairment
when an FLM certifies that such impairment is occurring in a particular
Class I area due to a single source or a small number of sources; (3)
remove FIP provisions that require the EPA to periodically assess
whether reasonably attributable visibility impairment is occurring and
to respond to FLM certifications; and (4) edit various portions of 40
CFR 51.300 through 40 CFR 51.308 to make them clearer and more
compatible with each other. The EPA solicited comment on each of the
proposed changes as well as suggestions for alternative approaches.
Specific proposed provisions included:
Revisions to 40 CFR 51.300, Purpose and applicability, to
expand the reasonably attributable visibility impairment requirements
to all states in light of the evolved understanding that pollutants
emitted from one or a small number of sources can affect Class I areas
many miles away.
Revisions to 40 CFR 51.301, Definitions, to change the
definition of reasonably attributable in order to make clear that a
state does not have complete discretion to determine what techniques
are appropriate for attributing visibility impairment to specific
sources.
Deletion of the entire text of 40 CFR 51.302 and
replacement with new language clearly describing a state's
responsibilities upon receiving a FLM certification of reasonably
attributable visibility impairment. The following aspects of the
proposed 40 CFR 51.302 are of particular relevance in summarizing
comments and explaining our final action.
[cir] The proposed 40 CFR 51.302(b) described the required state
action in response to any FLM certification of reasonably attributable
visibility impairment, namely that a state shall revise its regional
haze implementation plan to include a determination, based on the four
reasonable progress factors set forth in 40 CFR 51.308(d)(1)(i)(A), of
any controls necessary on the certified source(s) to make reasonable
progress toward natural visibility conditions in the affected Class I
area. This would preserve the existing state obligation, including the
fact that a certification by an FLM would not create a definite state
obligation to adopt a new control requirement, but rather only to
submit a SIP revision that provides for any controls necessary for
reasonable progress. It would be the EPA, not the certifying FLM, that
would determine whether the responding SIP is adequate and the response
reasonable.
[cir] The proposed 40 CFR 51.302(c) addressed those situations
where an FLM certifies as a reasonably attributable visibility
impairment source a BART-eligible source where there is at that time no
SIP or FIP in place setting BART emission limits for that source or
addressing BART requirements via a better-than-BART alternative
program.\124\ In such an instance, the
[[Page 3113]]
proposed rule would require the state to revise its regional haze SIP
to meet the requirements of 40 CFR 51.308(e), BART requirements for
regional haze visibility impairment, and notes that this requirement
exists in addition to the requirements of 40 CFR 51.302(b) regarding
imposition of controls for reasonable progress. The proposed version of
40 CFR 51.302(c) also clarified two aspects of the 1999 RHR to match
the EPA's past and current interpretations. First, while a
certification of reasonably attributable visibility impairment for a
BART-eligible source prior to the EPA's approval of a state's BART SIP
for that source does not impose any substantive obligation on a state
that is over and above the BART obligation imposed by 40 CFR 51.308,
the state's response to the certification of reasonably attributable
visibility impairment for a BART-eligible source must take into account
current information. Second, a certification of reasonably attributable
visibility impairment for a BART-eligible source after the state's BART
SIP for that source has been approved by the EPA does not trigger a
requirement for a new BART determination based on the five statutory
factors for BART, but rather, the state's obligation with respect to
that source is the same as for a non-BART eligible source.
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\124\ Although most of the BART requirements have been addressed
in most states, there remain a handful of states with BART
obligations. In addition, there is litigation over the BART element
in some approved SIPs and promulgated FIPs. We expect that this
situation may exist in one or more states at some time after the
effective date of the final rule.
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[cir] Three alternatives were proposed for 40 CFR 51.302(d)
regarding the time schedule for state response to an FLM certification
of reasonably attributable visibility impairment.
Revisions to 40 CFR 51.303, Exemptions from control, to
correctly refer to the new 40 CFR 51.302(c) as well as to the BART
provisions in 40 CFR 51.308(e). Note that these revisions were
described in the preamble of the proposal, but were inadvertently not
included in the proposed rule text.
Revisions to 40 CFR 51.304, Identification of integral
vistas, to remove antiquated language in light of the fact that FLMs
were required to identify any such integral vistas on or before
December 31, 1985, and to list those few integral vistas that were
properly identified.
Revisions to 40 CFR 51.305, Monitoring for reasonably
attributable visibility impairment, to state that the requirement to
include in a periodic comprehensive SIP revision a monitoring strategy
specifically for reasonably attributable visibility impairment in Class
I area(s) only applies in situations where the Administrator, Regional
Administrator or FLM has advised the state of a need for it.
Complete removal of 40 CFR 51.306.
Revisions to 40 CFR 51.308 (in addition to those discussed
elsewhere in this document and in the proposal) related to reasonably
attributable visibility impairment.
Revisions to 40 CFR 51.308(e), BART, relating to a state's
option to enact an emissions trading program or other alternative
measure in lieu of source-specific BART.
Finally, consistent with our proposal to remove the requirement for
states to periodically assess reasonably attributable visibility
impairment, the EPA proposed to revise many sections of 40 CFR part 52
to remove provisions that establish FIPs that require the EPA to
periodically assess whether reasonably attributable visibility
impairment exists at Class I areas in certain states and to address it
if it does, and to respond to any certification of reasonably
attributable visibility impairment that may be directed to a state that
does not have an approved reasonably attributable visibility impairment
SIP.
2. Comments and Responses
Comments on the proposed revisions to 40 CFR 51.300 regarding the
expansion of reasonably attributable visibility impairment to states
that do not have Class I areas were mixed across stakeholder groups.
While few commenters expressed disagreement with the EPA's statements
surrounding the improved scientific understanding of long-range
pollutant transport showing that reasonably attributable visibility
impairment can be an interstate issue, commenters opposing the
reasonably attributable visibility impairment expansion generally
pointed to the alleged redundant nature of the reasonably attributable
visibility impairment and regional haze requirements, as well as
asserting that any and all FLM concerns can be raised during the SIP
development process. Using similar arguments, a number of commenters
urged the EPA to remove the reasonably attributable visibility
impairment requirements entirely, although this was not an option
outlined in the proposal.
A number of comments on the proposed revisions to 40 CFR 51.301
regarding definitions opined that changing the definition of
``reasonably attributable'' (to remove implied state discretion in
determining whether the technique used was appropriate) would
significantly alter the federal-state relationship in the visibility
program and give FLMs authority beyond that afforded in sections 169A
and 169B of the CAA. In response, the EPA is clarifying that the text
edit to remove the phrase ``the state deems'' from the definition of
``reasonably attributable'' was not intended to give the FLMs sole
power to determine what technique is appropriate for attributing
visibility impairment to a source or small number of sources. If and
when an FLM makes a certification, it can base the certification on a
technique that it thinks appropriate. Whether that technique is
appropriate is an issue that the affected state may opine on during the
consultation opportunity the FLM is required to offer (details of this
consultation opportunity are discussed later) and as part of its
responsive SIP revision. If the state believes that the technique is
not appropriate and that no appropriate technique would verify the
attribution alleged by the FLM, the state may submit a narrative-only
SIP revision that disagrees with the certification and explains the
reason for the disagreement, and accordingly contains no additional
measures for the identified source or sources. However, it will be the
EPA that ultimately determines whether the technique was appropriate,
when we approve or disapprove the responsive SIP revision after
considering the information that supports the certification, the
information in the SIP revision, and public comments. This change in
the rule text does not alter the federal-state relationship, because
even under the wording of the 1999 RHR, the EPA would review the
reasonableness of a state's determination as to what technique is
appropriate for attributing visibility impairment.
Several of these comments also ask that, if the EPA finalizes this
change in definition, that the scope of attribution techniques which
would qualify as ``appropriate'' be better stated. On this point, the
EPA does not believe imposing such limits on the scope of techniques
that qualify as ``appropriate'' is justified, particularly given that
continually improving scientific understanding of pollutant transport
and the continually evolving scope of modeling will no doubt result in
even better attribution techniques in the future.
Other comments on 40 CFR 51.301 asked for a more descriptive and
thorough definition of ``reasonably attributable visibility
impairment'' and its related terms. Comments on 40 CFR 51.302 regarding
FLM certification of reasonably attributable visibility impairment
contained similar requests,
[[Page 3114]]
with most states and industry expressing concern that the proposed rule
did not define sufficiently limiting principles for FLMs, failed to
identify information about the scientific basis for any certification
of reasonably attributable visibility impairment, and did not provide
any basis by which a state or source could review or object to any
certification of reasonably attributable visibility impairment before
it triggered a mandatory obligation to respond. Several commenters
asked for guidance or criteria in the final rule for the certification
process and techniques for attribution, with some providing a suggested
list of elements to include in a certification of reasonably
attributable visibility impairment.
The comments in favor of a more specific provision in the final
rule for what type of source impact, assessed by what method,
constitutes reasonable attributable visibility impairment did not offer
any particular more specific definition of reasonably attributable
visibility impairment, and we had not proposed any more specific
definition. While the EPA acknowledges the comments, we do not think it
is necessary to finalize a more specific definition in the rule text.
The EPA agrees with the portion of one comment letter suggesting that a
thorough certification of reasonably attributable visibility impairment
should describe the location(s) within the Class I area where the
impairment occurs, when (e.g., year-round or only during certain times
of the year) the impairment occurs, what attribution methods were used
to determine impairment (such as photographs or videos, monitoring,
and/or modeling), a description of how the impairment adversely impacts
visibility, an identification of the source or sources believed by the
FLM to be causing the impairment and the methods used to make this
determination. Past reasonably attributable visibility impairment
certifications have generally included these elements or the certifying
FLM otherwise shared such information with the state.
Additional comments on 40 CFR 51.302 asked for some degree of state
participation in certification development, such as a pre-certification
consultation requirement whereby FLMs must consult with states (and
possibly EPA) before certifying, as well as an option for the state to
appeal a certification once received. In response to these comments, we
are including a consultation obligation on the FLMs in the final rule
text. We would like to reiterate the importance of state-FLM
consultation for all aspects of the RHR, including reasonably
attributable visibility impairment. While the final rule requires the
FLM to offer a state an in-person consultation meeting at least 60 days
prior to making a certification of reasonably attributable visibility
impairment, we encourage FLMs and state to have conversations and
exchange technical information even earlier. The FLMs have conveyed to
the EPA their expectation that a reasonably attributable visibility
impairment certification will be an unusual ``backstop'' for a
situation that is not otherwise addressed under the regional haze
program despite good communication between the FLM and the state. In
addition, in each instance since the original regulations were
promulgated since 1980, FLMs have consulted with states and EPA and
only made the decision to certify reasonably attributable visibility
impairment when these conversations did not lead to a resolution of the
issue.
One commenter said that there is no provision in the 1980 rule on
reasonably attributable visibility impairment that allows an FLM to
make a certification for a source that is not BART-eligible. This
commenter objected to the explicit provisions in our proposed rule
revisions that provide for such a certification. We disagree with the
commenter's description of the 1980 rule. We recognize that the term
``existing stationary facility'' was defined in the 1980 rule as
including only BART-eligible sources, and that many of the provisions
of the 1980 rule were specific to these sources. However, the 1980
rule's definition of reasonably attributable visibility impairment
refers to ``air pollutants from one, or a small number of sources,''
not more narrowly to ``existing stationary facilities.'' Also, 40 CFR
51.302(c)(2)(i) as promulgated in 1980 says that a state plan to
address reasonably attributable visibility impairment must include a
strategy ``as may be necessary to make reasonable progress towards the
national goal'' and 40 CFR 51.302(c)(2)(ii) requires an assessment of
how each element of the plan relates to preventing visibility
impairment. Neither of these sections is limited to only ``existing
stationary facilities.'' In addition, 40 CFR 51.302(c)(3) as
promulgated in 1980 required plans to require ``each source'' to
maintain control equipment and to establish procedures to ensure the
equipment is properly operated and maintained. While the remaining
parts of 40 CFR 51.302(c) contain more specific requirements that apply
when a certification of reasonably attributable visibility impairment
has identified an ``existing stationary facility'', the existence of
these requirements does not mean that an FLM may not make a
certification for another type of source or that a state has no
obligation to submit a SIP revision to respond to the certification.
Furthermore, as explained in more detail in the RTC, we believe that
the CAA provides broad enough authority for the EPA to promulgate the
provisions in the final rule regarding the certification of reasonably
attributable visibility impairment by sources that are not BART-
eligible, regardless of how these sources were addressed in the 1980
rule. If a certification is made for a source (or a small number of
sources) that is not BART-eligible (or for a BART-eligible source for
which the EPA has already approved or promulgated a plan addressing the
BART requirement), the responsive SIP revision must provide for
whatever measures for that source are necessary to make reasonable
progress considering the four statutory factors, unless the SIP
revision establishes that there is no reasonably attributable
visibility impairment due to the identified source.
There were a number of comments on 40 CFR 51.302(d) regarding the
proposed three options for a schedule for state response to a
certification of reasonably attributable visibility impairment. Some
commenters recommended the first proposed approach of keeping the 1999
RHR's schedule under which a state response is due within 3 years of a
certification of reasonably attributable visibility impairment. Most
commenters found the third proposed approach to be unnecessarily
complicated, while some objected to how much time could elapse between
a certification and the state's responsive SIP revision; we are not
finalizing the third approach and will not discuss it further. Some
commenters favored a modified version of the second proposed option (in
which the deadline would be the earlier of the due date for the next
progress report or periodic comprehensive SIP revision, so long as that
submission is due at least 2 years after the certification), but with
more time to respond. These commenters generally stated that the
minimum workable time was either 3 or 4 years. It is noteworthy,
however, that other commenters opposed this second option, largely due
to the fact that in some situations a state response would not be due
for some time after an FLM certification (up to 7 years).
We noted that if the second approach were finalized but with the
minimum time to respond to a certification increased to 3 or 4 years
(as recommended by some states),
[[Page 3115]]
responses to FLM certifications may not be due until 8 or 9 years after
certification, which is an excessive amount of time. The EPA believes
that retaining the fixed 3-year deadline of the existing rule is
workable for all parties and is most appropriate and hence is
finalizing the first option in this rulemaking, with an added provision
that no response will be due before the July 31, 2021, due date of the
next SIP revision.\125\ While not specifically proposed, this provision
is being finalized in response to the general concern of some
commenters with a state having to respond to a reasonably attributable
visibility impairment certification before it has had an opportunity to
systematically consider what additional emission reductions measures
are necessary for reasonable progress for the second implementation
period taking into account all the requirements of this final rule.
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\125\ The added provision that refers to July 31, 2021, will
have the effect of providing additional time for the state's
response only for a reasonably attributable visibility impairment
certification made prior to July 31, 2018.
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While we did not publish specific proposed rule changes for
removing all mention of integral vistas from the visibility protection
rules, we invited comment on such a step. We did so because it appeared
that if we finalized our other proposals, there would be no requirement
in our rules that actually depends on whether an integral vista
associated with a Class I area had been identified. Thus, removing
mention of integral vistas would simplify the rule text without
changing any party's obligations under our visibility protection rules.
A number of commenters agreed with our assessment and supported the
removal of all mention of integral vistas, and no commenter opposed
this change. However, we now realize that because the definition in 40
CFR 51.301 that ``visibility in any mandatory Class I Federal area
includes any integral vista associated with that area'' and because
there are several provisions that after our final action continue to
use the term ``visibility in any mandatory Class I Federal area,''
there are some provisions where the existence of a single identified
integral vista could conceivably make a difference to the obligation of
some party or to an EPA action. For this reason, we are finalizing only
what we proposed, which is removal of antiquated language in section 40
CFR 51.304, but not removal of all references to integral vistas in
subpart P.
For a discussion of the comments on other areas proposed and being
finalized related to reasonably attributable visibility impairment,
please see the RTC document available in the docket for this
rulemaking.
3. Final Rule
We are finalizing the proposed revisions to the reasonably
attributable visibility impairment and related provisions, with four
changes.
First, as mentioned in the Section IV.I.2 of this document, we are
finalizing a modified version of one of the proposed alternatives
regarding the deadline for state response to a certification of
reasonably attributable visibility impairment certification, namely
that the response would always be due within 3 years (as required by
the existing rule). The final rule retains this option's 3-year, fixed
deadline rather than one of the alternative schemes proposed that would
have always aligned the deadline with the next SIP revision or progress
report, but adds an additional one-time provision such that a state
response to a certification of reasonably attributable visibility
impairment will in no case be due earlier than July 31, 2021. The final
rule retains the language indicating that the state is not required at
the time of response to also revise its RPGs to reflect the additional
emission reductions required from the source or sources.
Second, we are adding to 40 CFR 51.308(e)(2)(v) and 40 CFR
51.308(e)(4) references to the reasonably attributable visibility
impairment provisions in 40 CFR 51.302(b) and 40 CFR 51.302(c). We
proposed to add to each of these parts of the rule only a reference to
40 CFR 51.302(b) but have realized that a reference in each to 40 CFR
51.302(c) is also needed. With these revisions, it is clear that for a
BART-eligible source participating in a trading program that has been
determined to be better-than-BART, if an FLM certifies that there is
reasonably attributable visibility impairment due to that source a
state may include a geographic enhancement of the trading program to
satisfy both the reasonable progress obligation under 40 CFR 51.302(b)
and any outstanding BART obligation under 40 CFR 51.302(c). While most
BART-eligible sources cannot become subject to 40 CFR 51.302(c) because
an approved BART SIP (or a SIP under 40 CFR 51.309) or a FIP is in
place as a result of planning efforts in the first implementation
period, there are a small number of BART-eligible sources that might
become subject to 40 CFR 51.302(c) and it is important to be clear that
a geographic enhancement is an option for them, as it has been under
the 1999 RHR.
Third, also mentioned in the preceding section, we are finalizing a
requirement in 40 CFR 51.302(a) that the FLM making a certification of
reasonably attributable visibility impairment must offer an opportunity
to the state(s) containing the identified sources to consult regarding
the basis for the certification, in person and at least 60 days before
the FLM makes the certification. This change was added in response to
comments received that specifically asked for such consultation.
Fourth, we are not finalizing the proposed changes to 40 CFR
51.308(c), for the following reasons. Because we are finalizing a 3-
year, fixed deadline for state response to a certification of
reasonably attributable visibility impairment, the first part of the
proposed provision (regarding the need to respond as part of an
upcoming, otherwise due SIP revision) no longer applies. As to the
second part of the proposed provision (regarding monitoring to assess
reasonably attributable visibility impairment), we now realize this
aspect is adequately covered by 40 CFR 51.308(f)(4) and that
duplication of requirements in different subsections would only cause
confusion. Therefore, 40 CFR 51.308(c) will remain unchanged from the
1999 RHR.
J. Consistency Revisions Related To Permitting of New and Modified
Major Sources
1. Summary of Proposal
Proposed changes to 40 CFR 51.307, New source review, were limited
to a few proposed changes to maintain consistency with other sections
of the RHR and with the CAA. These changes were minor and therefore
will not be repeated here.
2. Comments and Responses
There were no significant comments received on the proposed changes
to this subsection.
3. Final Rule
Changes to 40 CFR 51.307 are being finalized as proposed. The EPA
does wish to emphasize the requirement for FLM consultation during the
new source review permitting process. As discussed in the preamble for
the proposal, 40 CFR 51.307(a) requires FLM consultation for any new
major source or major modification that would be constructed in an area
designated attainment or unclassifiable that may affect visibility in
any Federal Class I
[[Page 3116]]
area. FLM consultation is also required under 40 CFR 51.307(b)(2) for
any major source or major modification that proposes to locate in a
nonattainment area that may affect visibility in any mandatory Federal
Class I area. Two EPA guidance documents interpret this consultation
requirement, particularly with regard to evaluating whether a proposed
new major source or major modification may affect visibility in a
Federal Class I area.\126\ The EPA regional offices can provide
additional assistance to states in ensuring that their permitting
programs meet the regulations and that the appropriate consultation is
being conducted for affected permits.
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\126\ Notification to Federal Land Manager Under Section 165(d)
of the Clean Air Act, memo from David G. Hawkins, EPA Assistant
Administrator for Air, Noise, and Radiation to EPA's Regional
Administrators, March 19, 1979; 1990 New Source Review Workshop
Manual, Chapter E, Section III A. Source Applicability.
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K. Changes to FLM Consultation Requirements
1. Summary of Proposal
As discussed in the proposed rule, state consultation with FLMs is
a critical part of the development of quality SIPs. We proposed not
only to apply the FLM consultation requirements of 40 CFR 51.308(i)(2)
to progress reports that are not SIP revisions, but to make further
edits to this subsection to support such consultations. The proposed
changes were motivated by a concern that the 1999 RHR's requirement for
consultation at least 60 days prior to a public hearing may not result
in a state offering an in-person consultation meeting sufficiently
early in the state's planning process to meaningfully inform the
state's development of the long-term strategy. We proposed to add a
requirement that such consultation on SIPs and progress reports occur
early enough to allow the state time for full consideration of FLM
input, but no fewer than 60 days prior to a public hearing or other
public comment opportunity. A consultation opportunity that takes place
no less than 120 days prior to a public hearing or other public comment
opportunity would then be deemed to have been ``early enough.''
2. Comments and Responses
Overall, the comments were split with many favoring any enhanced
FLM participation in regional haze planning, while most states
generally disfavored enhanced participation.
Regarding comments specific to the proposed changes to 40 CFR
51.308(i)(2), states were split in supporting or opposing the inclusion
of a reference using the phrase ``early enough.'' Some commenters said
the criteria were not clear and asked for clarity on what would be
needed to satisfy the requirement. In addition, many states and
industry said the current 60-day period is long enough for SIPs, and
that a longer period could delay their submission.
For progress reports, several state and industry commenters
indicated that the 60-day period described in the 1999 RHR is
sufficient, or that FLMs should not be consulted on progress reports at
all if they are no longer required to be SIP revisions. A main concern
was that anything more than a 60-day period would conflict with the
proposed requirement in 40 CFR 51.308(g)(3) to assess current
conditions based on the IMPROVE data available 6 months before the
progress report due date. As discussed earlier in this document, this
requirement under 40 CFR 51.308(g)(3) is being finalized as proposed.
The EPA agrees that a requirement to consult with FLMs on progress
reports more than 60 days prior to opening a public comment period may
interfere with the revised provisions in 40 CFR 51.308(g)(3) and is
therefore finalizing the 60-day requirement without referring to
consultation being ``early enough'' and without referring to the 120-
day point in the process.
Finally, some multi-state organization commenters asked for
confirmation that state and FLM participation in the RPO process would
continue to meet the consultation requirement. The EPA does not agree
that such participation would suffice for consultation because being
informed of the technical work performed by the multi-state
organizations is not the same as the FLMs being substantively involved
in regulatory decisions a state makes on what controls to require based
on that work (i.e., the decisions on the long-term strategy on which
public comment will be sought prior to submission to the EPA in the
form of a SIP revision). Furthermore, the objective of these provisions
is not to achieve FLM consultation with states on setting RPGs, since
that process is largely mechanical in nature because RPGs are to be
based on the long-term strategy and do not involve any additional
policy decisions. We note that a standing invitation for FLM
participation in the work performed by multi-state organizations may be
part of the procedures that a SIP provides for continuing consultation
between the state and the FLM, as required by 40 CFR 51.308(i)(4).
For a more thorough discussion of the comments on FLM consultation
requirements, please see the RTC document available in the docket for
this rulemaking.
3. Final Rule
After consideration of public comments, we are finalizing the
revisions to 40 CFR 51.308(i)(2) with changes from proposal. The
proposed requirement for consultation no fewer than 60 days prior to a
public hearing or other public comment opportunity (with a consultation
opportunity that takes place no less than 120 days prior to a public
hearing or other public comment opportunity being deemed ``early
enough'') is being finalized for SIP revisions. For progress reports
(which, as discussed elsewhere in this document, will no longer be
subject to the formalities of a SIP revision), the EPA is finalizing a
requirement for consultation no fewer than 60 days prior to a public
hearing or other public comment opportunity, with no reference to the
consultation opportunity being ``early enough.'' We are also finalizing
somewhat different wording regarding the purpose of the consultation on
SIP revisions, to convey the idea that consultation that takes place
via an in-person meeting 60 to 120 days prior to a public hearing or
comment opportunity will be about decisions that are about to be made
by the state on its long-term strategy rather than about the plan for
the technical analysis that informs these decisions, because by that
time the technical analysis will have already been largely
completed.\127\ The final wording on the purpose of the consultation
also emphasizes the content of the long-term strategy rather than the
setting of the RPGs, consistent with the concept that the RPGs are a
reflection of the requirements of the long-term strategy.
---------------------------------------------------------------------------
\127\ We expect that the FLM would have already provided input
into the planning of the technical analysis including steps to
gather information to be analyzed, as part of the ongoing
consultation required under 40 CFR 51.308(h)(4) and as part of FLM
participation in multi-state planning groups.
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L. Extension of Next Regional Haze SIP Deadline From 2018 to 2021
1. Summary of Proposal
The EPA proposed to revise 40 CFR 51.308(f) to move the deadline
for the submission of the next periodic comprehensive SIP revisions
from July 31, 2018, to July 31, 2021, with states retaining the option
of submitting their SIP revisions before July 31, 2021. We proposed to
leave the end date for the second implementation period at 2028,
[[Page 3117]]
regardless of when SIP revisions are submitted. The proposed change was
to be a one-time schedule adjustment such that the due dates for
periodic comprehensive SIP revisions for the third and subsequent
planning periods would still be due on July 31, 2028, and every 10
years thereafter. The EPA proposed this extension to allow states to
coordinate regional haze planning with other regulatory programs,
including but not limited to the Mercury and Air Toxics Standards,\128\
the 2010 1-hour SO2 NAAQS,\129\ the 2012 annual
PM2.5 NAAQS \130\ and the Clean Power Plan,\131\ with the
further expectation that this cross-program coordination would lead to
better overall policies and enhanced environmental protection.
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\128\ 77 FR 9304, February 16, 2012.
\129\ 75 FR 35520, June 22, 2010.
\130\ 78 FR 3086, January 15, 2013.
\131\ 80 FR 64662, October 23, 2015. The Clean Power Plan was
stayed by the Supreme Court for the duration of litigation. Order in
Pending Case, West Virginia v. EPA, No. 15A773 (February 9, 2016).
As a result, states have no compliance obligations with respect to
the Clean Power Plan at this time.
---------------------------------------------------------------------------
2. Comments and Reponses
Many commenters, especially state air agencies, expressed support
for this extension, while other commenters opposed it. A primary
concern from the latter group of commenters was that, given the fact
that many initial regional haze SIPs were submitted late (in some
cases, well into the first implementation period), this pattern was
likely to continue and many periodic comprehensive SIP revisions would
not be submitted by July 31, 2021, which would leave even less time
during the second implementation period for any emission reductions
necessary for reasonable progress to occur. One commenter stated that
the 2021 date would be workable provided EPA acts promptly on each
state's periodic comprehensive SIP revision, and that EPA should
indicate now that it will make prompt findings of nonsubmittal or
substantial inadequacy when the time comes.
As a general matter, making findings of nonsubmittal or substantial
inadequacy are well within the EPA's authority. While we recognize the
commenter's concern regarding the timing of SIP submissions, we expect
that the length of the second implementation period will be sufficient
to secure the emission reductions necessary for reasonable progress.
The EPA anticipates that the experience states and the EPA have gained
from the first round of regional haze planning will result in a more
efficient process of SIP submission and review moving forward.
Furthermore, the EPA has clarified in the final rule that whether or
not a control measure can be installed and become operational before
the end of the planning period is not a factor in determining whether
that measure is necessary to achieve reasonable progress. Thus, the
length of the implementation period should not be a barrier to
achieving the emission reductions identified by the reasonable progress
analysis. Finally, this rule change grants states additional time up
front (before 2021) for regional haze planning and analysis and thus
makes it more likely they will submit their SIP revisions for the
second implementation period either on or ahead of schedule.
Some commenters contended that the EPA's rationales do not justify
the proposed extension, and that giving states an additional 3 years to
coordinate their planning would frustrate Congress's policy goals and
impair human health. One commenter said that the EPA should evaluate
the public health impacts of its proposal to delay the SIP deadline to
2021. We disagree with these comments. As we explained at proposal, the
RHR requires states to include the impacts of other regulatory programs
when developing their regional haze SIPs. Many industries, including
the utility sector, are currently in the midst of developing mid- to
long-term plans that will govern how they navigate the numerous recent
additions to the regulatory landscape that include, but are not limited
to, the programs discussed in the proposal and mentioned previously
(i.e., the Mercury and Air Toxics Standards,\132\ the 2010 1-hour
SO2 NAAQS,\133\ the 2012 annual PM2.5 NAAQS \134\
and the Clean Power Plan).
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\132\ 77 FR 9304, February 16, 2012.
\133\ 75 FR 35520, June 22, 2010.
\134\ 78 FR 3086, January 15, 2013.
---------------------------------------------------------------------------
Decisions that states and regulated entities make in response to
one program may affect the options available for addressing their
regional haze obligations, and vice versa. Providing time for regulated
entities to coordinate their planning will allow them to design
pollution control strategies that make efficient and effective use of
their resources over the long term. Congress's goal of attaining
natural visibility conditions will not be achieved in the next
implementation period--it is necessarily a longer-term effort that will
require states and regulated entities to make careful, considered
decisions about how to balance the requirement to achieve sustained and
sustainable visibility improvement moving forward with their business,
regulatory and other priorities. Additionally, with the extension of
the due date for the second implementation period SIPs, we are
maintaining 2028 as the end date of the implementation period. We thus
disagree that providing states 3 additional years to coordinate
planning is inconsistent with continuing to make reasonable progress
towards the ultimate goal of natural visibility conditions. We also
disagree that providing 3 additional years will seriously undermine the
goal of coordinated, regional planning among states. While we are aware
that some states in the eastern U.S. are considering submitting SIPs
before July 31, 2021, these states are coordinating among themselves on
their technical analyses and they have not indicated that the extension
will obstruct their coordination with other states.
Although Congress did not establish an explicit role for health
considerations in the regional haze program, reductions of visibility-
impairing pollutants also have important health related co-benefits.
However, because the purpose of the regional haze program is improving
visibility in Class I areas, we disagree that the EPA should evaluate
the human health impacts of moving the deadline for regional haze SIP
submissions from 2018 to 2021. Importantly, the emission reductions
achieved in the first implementation period will continue to be in
effect, and emissions will continue to be addressed during this period
under the existing structure of federal, state and local clean air
programs. Insofar as states and sources were already planning to
undertake emission control projects in response to other regulatory
requirements, the timing of these projects will be unaffected by the
change in the SIP due date in the regional haze program. Furthermore,
states are not required to wait until 2021 to submit their regional
haze SIP revisions for the second implementation period, although they
may choose to do so.
One commenter asserted that EPA's proposal to extend the deadline
for submission of regional haze SIPs for the second implementation
period violates the plain language of the section 169B(e)(2) of the
CAA. The commenter argues that this statutory provision requires EPA to
mandate that states submit regional haze SIP revisions within 12 months
of promulgating RHR revisions under section 169A. We disagree. Section
169B(e)(2) states that ``[a]ny regulations promulgated under section
[169A] of this title pursuant to this subsection shall require affected
[[Page 3118]]
States to revise within 12 months their implementation plans under
section [110].'' (emphasis added). The subsection at issue, 169B(e)(1),
requires EPA to promulgate regional haze regulations within 18 months
of receiving the report required of Visibility Transport Commissions
under 169B(d)(2). This report was a one-time requirement intended to
inform EPA's yet-to-be-promulgated regulations. Thus, section
169B(e)(1) clearly expresses Congress's intent to establish a timetable
for the EPA's initial regional haze rulemaking in order to ensure that
the regulations would be promulgated in a timely fashion and would be
informed by the studies and report required under 169B(a)(1) and
(d)(2), respectively. Section 169B(e)(2) states that regulations
promulgated pursuant to (e)(1)--which addresses only EPA's obligation
to undertake that initial regional haze rulemaking--must require states
to submit SIP revisions within 12 months. We disagree with the
commenter's assertion that Congress intended this 12-month deadline to
apply in the case of subsequent rule revisions, as subsection (e)
describes a one-time process of research, reports and rulemaking to get
the regional haze program off the ground. Neither 169(e)(1) nor (e)(2)
contains any indication that Congress intended this specific timeline
to apply for additional, future rulemakings.
Another commenter said that in lieu of formally extending the
deadline, the Agency should consider granting an administrative waiver
to a state that affirmatively shows that a delay in submitting its
periodic comprehensive SIP revisions is warranted. The EPA does not
believe the additional effort required on the part of a state and the
EPA would be worthwhile for such an undertaking because many states
have good reason to coordinate their planning for their periodic
comprehensive SIP revisions with that for other regulatory requirements
and programs. A waiver process would thus add considerable
administrative burden with minimal benefit, as the EPA would be likely
to grant most or all of the waiver requests based on this need to
coordinate planning.
3. Final Rule
The EPA is finalizing this one-time deadline extension with no
changes from proposal.
M. Changes to Scheduling of Regional Haze Progress Reports
1. Summary of Proposal
The EPA proposed to revise the requirements in 40 CFR 51.308(g) and
(h) regarding the timing of submission of reports evaluating progress
towards the natural visibility goal. The 1999 RHR required states to
submit regional haze progress reports every 5 years, with the first
progress report due 5 years after submission of the first periodic
comprehensive SIP revisions. Because states submitted these first SIP
revisions on dates spread across several years, many of the due dates
for progress reports currently do not fall mid-way between the due
dates for periodic comprehensive SIP revisions, as the EPA initially
envisioned. Looking forward, continued operation of the 1999 RHR would
in many cases require a progress report shortly before or shortly after
a periodic comprehensive SIP revision, at which time it could not be
expected to have much utility as a mid-course review of environmental
progress or much incremental informational value for the public
compared to the data contained in that SIP revision.
Complementing the revisions to 40 CFR 51.308(f) regarding the
deadlines for submittal of periodic comprehensive revisions, we
proposed to revise 40 CFR 51.308(g) and (h) such that the second and
subsequent progress reports would be due by January 31, 2025, July 31,
2033, and every 10 years thereafter, placing one progress report mid-
way between the due dates for periodic comprehensive SIP revisions. As
we explained, this timing provides a balance between allowing the
implementation of the most recent SIP revision to proceed long enough
for a review to be possible and worthwhile, and having enough time
remaining before the next comprehensive SIP revision for state action
to make changes in its rules or implementation efforts, if necessary,
separately from the actions in that next SIP.
As explained in the proposal, the EPA no longer believes a progress
report is useful at or near the time of submission of a periodic
comprehensive SIP revision, since in practical terms a progress report
provides little additional information beyond that required in a
periodic comprehensive SIP revision (with the exception of the 1999
RHR's requirement that a progress report include information on the
trend in visibility over the whole period since the baseline period of
2000-2004). In order to substantially reduce administrative burdens and
make progress reports more useful to the public with no attendant
reduction in environmental protection, we proposed to limit the
requirement for separate progress reports to the one due mid-way
between periodic comprehensive SIP revisions and to add to the
requirement for periodic comprehensive SIP revisions a requirement to
include the visibility trend information that the 1999 RHR previously
required exclusively in progress reports.
2. Comments and Responses
Commenters generally supported the change to progress report
scheduling such that due dates would fall mid-way between those of
periodic comprehensive SIP revisions, though some comments recommended
that a periodic SIP revision be explicitly required to include all the
required progress report elements listed in 40 CFR 51.308(g) of the
1999 RHR and in particular element (g)(6), which requires an assessment
of whether the current SIP is sufficient to meet all established RPGs.
There are seven listed progress report elements in the 1999 RHR and
eight listed elements in the revised final rule. The subjects of the
first five of the elements are the same in the two versions of the
rule, and we proposed and are finalizing a requirement that each
periodic SIP revision address these five elements. We are not requiring
periodic SIP revisions to assess whether the SIP is sufficient to meet
all established RPGs (element (g)(6) in the 1999 RHR and the revised
final rule). Given that the SIP is being revised, there would be no
utility in assessing whether the previous terms of the SIP for the
previous implementation period were sufficient to meet the progress
goals for the previous period. Also, since the new SIP revision will
contain new progress goals for the end of the currently applicable
implementation period and these goals will be calculated to reflect the
new measures in that SIP revision and previously adopted measures, it
necessarily will be that this revised SIP is sufficient to meet the new
goals. The seventh element of a progress report as listed in the 1999
RHR (which EPA is eliminating in the revised rule for progress reports
for the second and subsequent implementation periods for reasons
described elsewhere in this document) is a review of the monitoring
strategy. However, periodic SIP revisions are required to address the
monitoring strategy under 40 CFR 308(f)(6) of the final rule text, so
no further mention of monitoring strategies is needed. The newly added
element of a progress report in the revised final rule (now numbered as
element (g)(8)) is
[[Page 3119]]
the summary of the most recent assessment of a smoke management program
if any. Our reasons for not requiring periodic SIP revisions to include
such a summary are given elsewhere in this document.
Some commenters requested that the progress report due January 1,
2025, be removed from the rule, given the fact that it would be due
only 3.5 years after the July 31, 2021, due date of the next periodic
comprehensive SIP revision. These commenters felt this time period
prohibitively short and that this information could be better be
included in the next periodic comprehensive SIP revision due July 31,
2028. A few commenters asked that EPA entirely remove the requirement
for progress reports from the regional haze program. As noted
previously, progress reports are an important tool for states to review
and potentially make changes in their rules or implementation efforts,
if necessary. Although the progress report for the second
implementation period will be due only 3.5 years after the due date of
the preceding periodic comprehensive SIP revisions, we still believe in
the usefulness of such a mid-course review. In addition, some states
have indicated that they intend to submit periodic comprehensive SIP
revisions closer to the 1999 RHR's July 31, 2018 deadline, so for those
states substantially more than 3.5 years will have elapsed before the
progress report becomes due.
3. Final Rule
The EPA is finalizing these provisions regarding scheduling of
progress reports, and the aforementioned additional requirement that
periodic comprehensive SIP revisions include gap-filling visibility
trend information, with no change from proposal.
N. Changes to the Requirement That Regional Haze Progress Reports Be
SIP Revisions
1. Summary of Proposal
We proposed to revise 40 CFR 51.308(g) regarding the requirements
for the form of progress reports, which under the 1999 RHR were
required to take the form of SIP revisions that comply with certain
procedural requirements.\135\ As explained in the proposed rule and
elsewhere in this document, the EPA originally included the requirement
for progress reports in the 1999 RHR primarily to ensure that the
states remain on track between periodic comprehensive SIP revisions. In
the 1999 RHR, we required progress reports to be in the form of SIP
revisions that meet the procedural requirements of 40 CFR 51.102 and
51.103 (which in turn refer to the requirements of Appendix V of 40 CFR
part 51). Given the requirements for what a state should include in its
progress report, we anticipated that these submittals would typically
contain narrative descriptions of such things as current visibility
conditions and emissions inventories. We did not anticipate that
progress reports would typically include new or revised emission
limits.\136\ Although the EPA specifically intended for progress
reports to involve significantly less effort than a periodic
comprehensive SIP revision, a state must provide public notice and an
opportunity for a public hearing for SIP revisions. In addition, they
must conform to certain administrative procedural requirements, provide
various administrative material, and must be submitted by an official
who is authorized by state law to submit a SIP revision.
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\135\ These procedural requirements are detailed in 40 CFR
51.102, 40 CFR 51.103 and Appendix V to Part 51--Criteria for
Determining the Completeness of Plan Submissions.
\136\ Under our regulations, if a state were to determine at the
time of submitting its progress report that its SIP is or may be
inadequate to ensure reasonable progress due to emissions from
sources within the state, the state has 1 year in which to submit a
SIP revision addressing the inadequacy of its plan. 40 CFR
51.308(h)(4). This SIP revision would contain any required new or
revised emission limits.
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We proposed to revise our regulations so that progress reports need
not be in the form of SIP revisions, but to require states to consult
with FLMs and obtain public comment on their progress reports before
submission to the EPA. We also proposed that the SIP revision due in
2021 must include a commitment to prepare and submit these progress
reports to the EPA according to the revised schedule being finalized in
this rule (see previous section). While these progress reports would be
acknowledged and assessed by the EPA, our review of these reports would
not result in a formal approval or disapproval of them. In addition,
relieving states of the obligation to follow the procedural
requirements of 40 CFR 51.102 and 51.103 would free up state resources
for other important environmental planning, given the fact that they
are resource-intensive. Other advantages to the proposed approach were
discussed in detail at proposal.
2. Comments and Responses
Many commenters expressed support, with some suggesting that EPA do
away with progress reports entirely (similar sentiments were expressed
in comments on progress report timing; see previously in this
document). Other commenters opposed eliminating the requirement that
progress reports take the form of SIP revisions, and expressed that
review by EPA should at least involve a finding of adequacy or
inadequacy.
In response to comments opposing eliminating the requirement that
progress reports be SIP revisions, the EPA would like to reiterate that
as part of our review of a progress report, we will follow up with the
state on any appropriate next steps, and we note again that there are
additional remedies (such as undertaking a less formal assessment of
the results of the implementation of the previously submitted SIP)
available to the EPA in the event a state fails to properly submit a
progress report.
Some comments expressed concern that the EPA would use progress
reports as a basis for a ``SIP call'' and opined that progress reports
should only provide information for subsequent SIP submittals. It
should be noted, however, that 40 CFR 51.308(h), which we are not
revising in any material way, already requires that if a state has
determined in its progress report that its implementation plan is or
may be inadequate to ensure reasonable progress due to emissions within
that state, it must revise its current SIP to address its deficiencies.
Thus, there is already a mechanism under which states must use the
information in their progress reports to assess the adequacy of their
existing SIPs. Additionally, under CAA section 110(k)(5), the EPA has
the authority to review a SIP and assess the adequacy of that SIP.
While this authority is discretionary, when and if the EPA does make a
determination about the adequacy of a regional haze SIP it must do so
reasonably, and this may require consideration of the information in a
progress report. Therefore, we are not including in the final rule any
provision saying that the content of a progress report may not be used
as part of the basis for a SIP call action.
We will further consider a suggestion from one commenter that we
provide a centralized Web site that would inform the public of which
progress reports are currently available for public comment at the
state level and the planned end of each comment period.
3. Final Rule
The EPA is finalizing the proposal to eliminate the requirement
that progress reports take the form of SIP revisions. The EPA would
like to emphasize (as explained at proposal) that although progress
reports will no longer be
[[Page 3120]]
required to take the form of SIP revisions, states will still be
required to include the required progress report elements listed in 40
CFR 51.308(g)(1) through 40 CFR 51.308(g)(8), in particular the
assessment of whether the existing SIP elements are sufficient to
enable a state to meet all established RPGs for the period covered by
the most recent periodic SIP revision. We are also retaining the
requirement that states consult with FLMs and obtain public comment on
their progress reports before submission to the EPA.\137\ Also, 40 CFR
51.308(h) will continue to require that at the same time the state is
required to submit a progress report, it must also take one of four
listed actions concerning whether the SIP is adequate to achieve
established goals for visibility improvement, and the state will
continue to have an obligation to revise its SIP to address any plan
deficiencies within 1 year of submission of a determination that the
SIP is or may be inadequate.
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\137\ We discuss the timing for consultation elsewhere in this
preamble.
---------------------------------------------------------------------------
O. Changes to Requirements Related to the Grand Canyon Visibility
Transport Commission
1. Summary of Proposal
As noted in the proposal, 40 CFR 51.309 has limited applicability
going forward because its provisions apply only to 16 Class I areas
covered by the Grand Canyon Visibility Transport Commission Report,
only to three states that chose to rely on the special provisions in
this section and only to SIPs for the first regional haze
implementation period (i.e., through 2018). However, we proposed
certain conforming revisions to avoid confusion going forward,
including the following:
Revising 40 CFR 51.309(d)(4)(v) to correctly refer to the
new 40 CFR 51.302(b) (in lieu of (e), which no longer exists in the
proposed 40 CFR 51.302) and to delete the reference to BART since it
does not appear in 40 CFR 51.302(b).
Changing the title of 40 CFR 51.309(c)(10), Periodic
implementation plan revisions, to include ``and progress reports'' at
the end, to complement the revisions that will no longer require
progress reports be considered SIP revisions.
Revising 40 CFR 51.309(c)(10) to preserve the 1999 RHR's
requirement that the progress reports due in 2013 take the form of SIP
revisions, but direct the reader to the provisions of 40 CFR 51.308(g)
for subsequent progress reports.
Revising 40 CFR 51.309(c)(10)(iv) to indicate that
subsequent progress reports are subject to the requirements of 40 CFR
51.308(h) regarding determinations of adequacy of existing SIPs.
Revising 40 CFR 51.309(g)(2)(iii) to correct a
typographical error.
2. Comments and Responses
Few comments were received on the proposed revisions to 40 CFR
51.309. Of those, most concerned fire issues, and this subject matter
is treated elsewhere in this document. One commenter requested
clarification on what happens to states participating in the GCVTC
after 2018, and in response the EPA would like to clarify that all
measures and obligations contained in a SIP approved pursuant to 40 CFR
51.309 must continue to be implemented unless the SIP itself provides
for that measure or obligation to sunset, that the revised provisions
of 40 CFR 51.309 will apply to any SIP revision that would revise a SIP
provision that was part of the basis of EPA initially approving the SIP
as meeting the requirements of the 1999 RHR's 40 CFR 51.309 and that
future periodic comprehensive SIP revisions and progress reports from
these states will be subject to the requirements of 40 CFR 51.308(f)
and (g), respectively.
3. Final Rule
All revisions to 40 CFR 51.309 are being finalized without change
from proposal.
V. Environmental Justice Considerations
The EPA believes this action will not have disproportionately high
and adverse human health, well-being or environmental effects on
minority, low-income or indigenous populations because it will not
negatively affect the level of protection provided to human health,
well-being or the environment under the CAA's visibility protection
program. These revisions to the RHR alter procedural and timing aspects
of the SIP requirements for visibility protection but do not
substantively change the requirement that SIPs provide for reasonable
progress towards the goal of natural visibility conditions. These SIP
requirements are designed to protect all segments of the general
population.
The EPA acknowledges that the delay in submitting SIP revisions
from 2018 to 2021 might, but will not necessarily, affect the schedule
on which sources must comply with any new requirements. One commenter
said that any such delay in reducing emissions is likely to
disproportionately impact children, communities of color and the
economically disadvantaged. However, because neither the CAA nor the
1999 RHR set specific deadlines for when sources must comply with any
new requirements in a state's next periodic comprehensive SIP revision,
states have substantial discretion in establishing reasonable
compliance deadlines for measures in their SIPs. Given this, we expect
to see a range of compliance deadlines in the next round of regional
haze SIPs from early in the second implementation period to 2028,
depending on the types of measures adopted, and this would have
occurred regardless of whether these changes had been finalized. Thus,
the EPA believes the delay in the periodic comprehensive SIP revision
submission deadline from 2018 to 2021 will not meaningfully reduce the
overall progress towards better visibility made by the end of 2028 and
will not meaningfully adversely affect environmental protection for any
segments of the population. Furthermore, by reducing uncertainty about
the requirements of the RHR and in some regards making those
requirements more protective, we believe this action is likely to
improve public health protection.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket.
B. Paperwork Reduction Act (PRA)
The information collection activities in this final rule have been
submitted for approval to the OMB under the PRA. The ICR document that
the EPA prepared has been assigned the EPA ICR number 2540.02. A copy
of the ICR supporting statement is available in the docket for this
rule, and it is briefly summarized here.
The EPA is finalizing revisions to requirements for state regional
haze planning to change the requirements that must be met by states in
developing regional haze SIPs, periodic comprehensive SIP revisions,
and progress reports for regional haze. The main intended effects of
this rulemaking are to provide states with additional time to submit
regional haze plans for the second implementation period and
[[Page 3121]]
to provide states with an improved schedule and process for progress
report submission. Further reductions in burden on states for the
second planning period include removal of the requirement for progress
reports to be SIP revisions, clarifying that states are not required to
project emissions inventories as part of preparing a progress report,
and relieving the state of the need to review its visibility monitoring
strategy within the context of the progress report. With all of these
changes considered, the overall burden on states would represent a
reduction compared to what would otherwise occur if the provisions of
the 1999 RHR were to stay in place. However, we agree with public
comments received on the ICR for the proposed rule indicating that the
EPA's previous estimates of burden for the 1999 RHR, as well as
estimates of burden for the proposed rule, did not accurately reflect
the level of effort required to draft SIPs and progress reports.
Although at proposal, the total estimated burden for the applicable
period of this ICR (i.e., 2016-2019) was estimated to be reduced from
10,307 hours (per year) to 5,974 hours (per year), and total estimated
cost was expected to be reduced from $510,498 (per year) to $295,876
(per year), taking into account the information submitted by the
commenters, the EPA now estimates burden under the final rule for the
applicable period of 2016-2019 to be 13,310 hours (per year) and total
estimated cost to be $659,245 (per year). Please note that the EPA
believes the final rule will allow for a reduction in effort compared
to the 1999 RHR. Thus, if the SIP development and other were undertaken
under the 1999 RHR, the costs would be higher than with this final
rule. The apparent increase in estimated hours and cost is related to
updates of prior estimates in light of more accurate information.
Despite this, the EPA projects that the total estimated burden and cost
associated with the final rule are less than would be required if the
rule revisions were not made. The revisions, for example, extend
planning deadlines, reduce the number of SIP submissions to the EPA,
relieve states of the need to supply progress reports in the form of
formal SIP revisions, and relieve the state of the need to review its
visibility monitoring strategy within the context of the progress
report. In addition, in accordance with OMB guidance, these numbers
reflect the average burden on states per year over the next 3 years
only. This burden will vary from year to year, and due to the nature of
an average, some states may be above the average while other states may
be below the average. The ``per-year'' numbers provided here are the 3-
year averages, and these 3-year averages will also vary. For example,
the prior 3-year period (associated with the prior ICR) was not an
active SIP development period, and therefore burden on states was
relatively low in comparison to the 3-year period associated with this
ICR. During this 3-year period states will be taking steps to prepare
their next SIPs. SIP development and adoption will continue into the
following 3-year period (approximately 2019-2022), and then subside
until the next SIP is due in 2028, resulting in a reduced burden
compared to the estimates reflected here. For more information and a
summary and response to comments received on the proposed rule ICR,
please see the Information Collection Request Supporting Statement for
EPA ICR Number 2540.02. ICR for Final Revisions to the Regional Haze
Regulations, in the docket for this rule. All states are required to
submit regional haze SIPs and progress reports under this rule.
Respondents/affected entities: All state air agencies.
Respondent's obligation to respond: Mandatory, in accordance with
the provisions of the 1999 RHR.
Estimated number of respondents: 52: 50 states, District of
Columbia and U.S. Virgin Islands.
Frequency of response: Approximately every 10 years (SIP) and
approximately every 10 years (progress report).
Total estimated burden: 13,310 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $659,245 (per year), includes $0 annualized
capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Entities
potentially affected directly by these rule revisions include state
governments, and for the purposes of the RFA, state governments are not
considered small governments. Tribes may choose to follow the
provisions of the RHR but are not required to do so. Other types of
small entities are not directly subject to the requirements of this
rule.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action imposes no enforceable duty on any
state, local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It does not have a substantial direct effect on
one or more Indian tribes. Furthermore, these regulation revisions do
not affect the relationship or distribution of power and
responsibilities between the federal government and Indian tribes. The
CAA and the TAR establish the relationship of the federal government
and tribes in characterizing air quality and developing plans to
protect visibility in Class I areas, and these revisions to the
regulations do nothing to modify that relationship. Thus, Executive
Order 13175 does not apply to this action.
Although Executive Order 13175 does not apply to this action, the
EPA held public hearings attended by members of tribes and separate
meetings with tribal representatives to discuss the revisions proposed
in this action. The EPA also provided an opportunity for all interested
parties to provide oral or written comments on potential concepts for
the EPA to address during the rule revision process. Summaries of these
meetings are included in the docket for this rule. The EPA also offered
to consult with any tribal government to discuss this proposal. A copy
of this offer for consultation can be found in the docket for this
rulemaking. No tribes requested consultation. One tribal organization
submitted comments, which generally endorsed the proposed revisions.
However, this commenter said that this action does have implications to
tribes and that the EPA must develop an accountability process to
ensure meaningful and timely input to states as they implement the
revised
[[Page 3122]]
requirements of the RHR. We acknowledge this comment but we do not find
it to contain a basis for changing our finding that Executive Order
13175 does not apply to this action. See also Section III.B.5 of this
document for further discussion regarding the role of tribes in
visibility protection.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action may not have disproportionately
high and adverse effects on minority populations, low-income
populations and/or indigenous peoples, as specified in Executive Order
12898.\138\ The results of our evaluation are contained in Section V of
this document.
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\138\ 59 FR 7629 (February 16, 1994).
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K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the U.S. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
VII. Statutory Authority
The statutory authority for this action is provided by 42 U.S.C.
7403, 7407, 7410 and 7601.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Nitrogen dioxide, Particulate matter, Sulfur
oxides, Transportation, Volatile organic compounds.
40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Nitrogen dioxide,
Particulate matter, Sulfur oxides, Transportation, Volatile organic
compounds.
Dated: December 14, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the preamble, part 51 and part 52 of
chapter I of title 40 of the Code of Federal Regulations are amended as
follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart P--Protection of Visibility
0
2. Section 51.300 is amended by revising paragraph (b) to read as
follows:
Sec. 51.300 Purpose and applicability.
* * * * *
(b) Applicability The provisions of this subpart are applicable to
all States as defined in section 302(d) of the Clean Air Act (CAA)
except Guam, Puerto Rico, American Samoa, and the Northern Mariana
Islands.
0
3. Section 51.301 is amended by:
0
a. Adding the definitions in alphabetical order for ``Baseline
visibility condition'', ``Clearest days'', and ``Current visibility
condition'';
0
b. Revising the definition of ``Deciview'';
0
c. Adding the definitions in alphabetical order for ``Deciview index''
and ``End of the applicable implementation period'';
0
d. Revising the definition of ``Least impaired days'', ``Mandatory
Class I Federal Area'', ``Most impaired days'', and ``Natural
conditions'';
0
e. Adding the definitions in alphabetical order for ``Natural
visibility'', ``Natural visibility condition'', and ``Prescribed
fire'';
0
f. Revising the definitions of ``Reasonably attributable'' and
``Regional haze'';
0
g. Adding the definition in alphabetical order for ``Visibility'';
0
h. Removing the definition of ``Visibility impairment'';
0
i. Adding the definition of ``Visibility impairment or anthropogenic
visibility impairment''; and,
0
j. Adding the definitions in alphabetical order for ``Wildfire'' and
``Wildland''.
The revisions and additions read as follows:
Sec. 51.301 Definitions.
* * * * *
Baseline visibility condition means the average of the five annual
averages of the individual values of daily visibility for the period
2000-2004 unique to each Class I area for either the most impaired days
or the clearest days.
* * * * *
Clearest days means the twenty percent of monitored days in a
calendar year with the lowest values of the deciview index.
Current visibility condition means the average of the five annual
averages of individual values of daily visibility for the most recent
period for which data are available unique to each Class I area for
either the most impaired days or the clearest days.
Deciview is the unit of measurement on the deciview index scale for
quantifying in a standard manner human perceptions of visibility.
Deciview index means a value for a day that is derived from
calculated or measured light extinction, such that uniform increments
of the index correspond to uniform incremental changes in perception
across the entire range of conditions, from pristine to very obscured.
The deciview index is calculated based on the following equation (for
the purposes of calculating deciview using IMPROVE data, the
atmospheric light extinction coefficient must be calculated from
aerosol measurements and an estimate of Rayleigh scattering):
Deciview index = 10 ln (bext/10 Mm-1).
bext = the atmospheric light extinction coefficient,
expressed in inverse megameters (Mm-1).
End of the applicable implementation period means December 31 of
the year in which the next periodic comprehensive implementation plan
revision is due under Sec. 51.308(f).
* * * * *
Least impaired days means the twenty percent of monitored days in a
calendar
[[Page 3123]]
year with the lowest amounts of visibility impairment.
* * * * *
Mandatory Class I Federal Area or Mandatory Federal Class I Area
means any area identified in part 81, subpart D of this title.
Most impaired days means the twenty percent of monitored days in a
calendar year with the highest amounts of anthropogenic visibility
impairment.
Natural conditions reflect naturally occurring phenomena that
reduce visibility as measured in terms of light extinction, visual
range, contrast, or coloration, and may refer to the conditions on a
single day or a set of days. These phenomena include, but are not
limited to, humidity, fire events, dust storms, volcanic activity, and
biogenic emissions from soils and trees. These phenomena may be near or
far from a Class I area and may be outside the United States.
Natural visibility means visibility (contrast, coloration, and
texture) on a day or days that would have existed under natural
conditions. Natural visibility varies with time and location, is
estimated or inferred rather than directly measured, and may have long-
term trends due to long-term trends in natural conditions.
Natural visibility condition means the average of individual values
of daily natural visibility unique to each Class I area for either the
most impaired days or the clearest days.
* * * * *
Prescribed fire means any fire intentionally ignited by management
actions in accordance with applicable laws, policies, and regulations
to meet specific land or resource management objectives.
Reasonably attributable means attributable by visual observation or
any other appropriate technique.
* * * * *
Regional haze means visibility impairment that is caused by the
emission of air pollutants from numerous anthropogenic sources located
over a wide geographic area. Such sources include, but are not limited
to, major and minor stationary sources, mobile sources, and area
sources.
* * * * *
Visibility means the degree of perceived clarity when viewing
objects at a distance. Visibility includes perceived changes in
contrast, coloration, and texture elements in a scene.
Visibility impairment or anthropogenic visibility impairment means
any humanly perceptible difference due to air pollution from
anthropogenic sources between actual visibility and natural visibility
on one or more days. Because natural visibility can only be estimated
or inferred, visibility impairment also is estimated or inferred rather
than directly measured.
* * * * *
Wildfire means any fire started by an unplanned ignition caused by
lightning; volcanoes; other acts of nature; unauthorized activity; or
accidental, human-caused actions, or a prescribed fire that has
developed into a wildfire. A wildfire that predominantly occurs on
wildland is a natural event.
Wildland means an area in which human activity and development is
essentially non-existent, except for roads, railroads, power lines, and
similar transportation facilities. Structures, if any, are widely
scattered.
0
4. Revise Sec. 51.302 to read as follows:
Sec. 51.302 Reasonably attributable visibility impairment.
(a) The affected Federal Land Manager may certify, at any time,
that there exists reasonably attributable visibility impairment in any
mandatory Class I Federal area and identify which single source or
small number of sources is responsible for such impairment. The
affected Federal Land Manager will provide the certification to the
State in which the impairment occurs and the State(s) in which the
source(s) is located. The affected Federal Land Manager shall provide
the State(s) in which the source(s) is located an opportunity to
consult on the basis of the planned certification, in person and at
least 60 days prior to providing the certification to the State(s).
(b) The State(s) in which the source(s) is located shall revise its
regional haze implementation plan, in accordance with the schedule set
forth in paragraph (d) of this section, to include for each source or
small number of sources that the Federal Land Manager has identified in
whole or in part for reasonably attributable visibility impairment as
part of a certification under paragraph (a) of this section:
(1) A determination, based on the factors set forth in Sec.
51.308(f)(2), of the control measures, if any, that are necessary with
respect to the source or sources in order for the plan to make
reasonable progress toward natural visibility conditions in the
affected Class I Federal area;
(2) Emission limitations that reflect the degree of emission
reduction achievable by such control measures and schedules for
compliance as expeditiously as practicable; and
(3) Monitoring, recordkeeping, and reporting requirements
sufficient to ensure the enforceability of the emission limitations.
(c) If a source that the Federal Land Manager has identified as
responsible in whole or in part for reasonably attributable visibility
impairment as part of a certification under paragraph (a) of this
section is a BART-eligible source, and if there is not in effect as of
the date of the certification a fully or conditionally approved
implementation plan addressing the BART requirement for that source
(which existing plan may incorporate either source-specific emission
limitations reflecting the emission control performance of BART, an
alternative program to address the BART requirement under Sec.
51.308(e)(2) through (4), or for sources of SO2, a program
approved under paragraph Sec. 51.309(d)(4)), then the State shall
revise its regional haze implementation plan to meet the requirements
of Sec. 51.308(e) with respect to that source, taking into account
current conditions related to the factors listed in Sec.
51.308(e)(1)(ii)(A). This requirement is in addition to the requirement
of paragraph (b) of this section.
(d) For any existing reasonably attributable visibility impairment
the Federal Land Manager certifies to the State(s) under paragraph (a)
of this section, the State(s) shall submit a revision to its regional
haze implementation plan that includes the elements described in
paragraphs (b) and (c) of this section no later than 3 years after the
date of the certification. The State(s) is not required at that time to
also revise its reasonable progress goals to reflect any additional
emission reductions required from the source or sources. In no case
shall such a revision in response to a reasonably attributable
visibility impairment certification be due before July 31, 2021.
0
5. Section 51.303 is amended by revising paragraph (a)(1) to read as
follows:
Sec. 51.303 Exemptions from control.
(a)(1) Any existing stationary facility subject to the requirement
under Sec. 51.302(c) or Sec. 51.308(e) to install, operate, and
maintain BART may apply to the Administrator for an exemption from that
requirement.
* * * * *
0
6. Revise Sec. 51.304 to read as follows:
Sec. 51.304 Identification of integral vistas.
(a) Federal Land Managers were required to identify any integral
vistas on or before December 31, 1985, according to criteria the
Federal Land
[[Page 3124]]
Managers developed. These criteria must have included, but were not
limited to, whether the integral vista was important to the visitor's
visual experience of the mandatory Class I Federal area.
(b) The following integral vistas were identified by Federal Land
Managers: At Roosevelt Campobello International Park, from the
observation point of Roosevelt cottage and beach area, the viewing
angle from 244 to 256 degrees; and at Roosevelt Campobello
International Park, from the observation point of Friar's Head, the
viewing angle from 154 to 194 degrees.
(c) The State must list in its implementation plan any integral
vista listed in paragraph (b) of this section.
0
7. Revise Sec. 51.305 to read as follows:
Sec. 51.305 Monitoring for reasonably attributable visibility
impairment.
For the purposes of addressing reasonably attributable visibility
impairment, if the Administrator, Regional Administrator, or the
affected Federal Land Manager has advised a State containing a
mandatory Class I Federal area of a need for monitoring to assess
reasonably attributable visibility impairment at the mandatory Class I
Federal area in addition to the monitoring currently being conducted to
meet the requirements of Sec. 51.308(d)(4), the State must include in
the next implementation plan revision to meet the requirement of Sec.
51.308(f) an appropriate strategy for evaluating reasonably
attributable visibility impairment in the mandatory Class I Federal
area by visual observation or other appropriate monitoring techniques.
Such strategy must take into account current and anticipated visibility
monitoring research, the availability of appropriate monitoring
techniques, and such guidance as is provided by the Agency.
Sec. 51.306 [Removed and Reserved]
0
8. Section 51.306 is removed and reserved.
0
9. Section 51.307 is amended by revising paragraphs (a) introductory
text and (b)(1) and (2) to read as follows:
Sec. 51.307 New source review.
(a) For purposes of new source review of any new major stationary
source or major modification that would be constructed in an area that
is designated attainment or unclassified under section 107(d) of the
CAA, the State plan must, in any review under Sec. 51.166 with respect
to visibility protection and analyses, provide for:
* * * * *
(b) * * *
(1) That may have an impact on any integral vista of a mandatory
Class I Federal area listed in Sec. 51.304(b), or
(2) That proposes to locate in an area classified as nonattainment
under section 107(d)(1) of the Clean Air Act that may have an impact on
visibility in any mandatory Class I Federal area.
* * * * *
0
10. Section 51.308 is amended by:
0
a. Revising paragraph (b);
0
b. Revising paragraphs (d)(2)(iv), (d)(3) introductory text, (e)(2)(v),
(e)(4) and (5), (f), (g) introductory text, and (g)(3) through (7);
0
c. Adding paragraph (g)(8); and
0
d. Revising paragraphs (h) introductory text, (h)(1), (i)(2)
introductory text, (i)(2)(ii), and (i)(3) and (4).
The revisions and additions read as follows:
Sec. 51.308 Regional haze program requirements.
* * * * *
(b) When are the first implementation plans due under the regional
haze program? Except as provided in Sec. 51.309(c), each State
identified in Sec. 51.300(b) must submit, for the entire State, an
implementation plan for regional haze meeting the requirements of
paragraphs (d) and (e) of this section no later than December 17, 2007.
* * * * *
(d) * * *
(2) * * *
(iv) For the first implementation plan addressing the requirements
of paragraphs (d) and (e) of this section, the number of deciviews by
which baseline conditions exceed natural visibility conditions for the
most impaired and least impaired days.
(3) Long-term strategy for regional haze. Each State listed in
Sec. 51.300(b) must submit a long-term strategy that addresses
regional haze visibility impairment for each mandatory Class I Federal
area within the State and for each mandatory Class I Federal area
located outside the State that may be affected by emissions from the
State. The long-term strategy must include 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. In establishing its long-term strategy
for regional haze, the State must meet the following requirements:
* * * * *
(e) * * *
(2) * * *
(v) At the State's option, a provision that the emissions trading
program or other alternative measure may include a geographic
enhancement to the program to address the requirement under Sec.
51.302(b) or (c) related to reasonably attributable impairment from the
pollutants covered under the emissions trading program or other
alternative measure.
* * * * *
(4) A State whose sources are subject to a trading program
established under part 97 of this chapter in accordance with a federal
implementation plan set forth in Sec. 52.38 or Sec. 52.39 of this
chapter or a trading program established under a SIP revision approved
by the Administrator as meeting the requirements of Sec. 52.38 or
Sec. 52.39 of this chapter need not require BART-eligible fossil fuel-
fired steam electric plants in the State to install, operate, and
maintain BART for the pollutant covered by such trading program in the
State. A State may adopt provisions, consistent with the requirements
applicable to the State's sources for such trading program, for a
geographic enhancement to the trading program to address any
requirement under Sec. 51.302(b) or (c) related to reasonably
attributable impairment from the pollutant covered by such trading
program in that State.
(5) After a State has met the requirements for BART or implemented
an emissions trading program or other alternative measure that achieves
more reasonable progress than the installation and operation of BART,
BART-eligible sources will be subject to the requirements of paragraphs
(d) and (f) of this section, as applicable, in the same manner as other
sources.
* * * * *
(f) Requirements for periodic comprehensive revisions of
implementation plans for regional haze. Each State identified in Sec.
51.300(b) must revise and submit its regional haze implementation plan
revision to EPA by July 31, 2021, July 31, 2028, and every 10 years
thereafter. The plan revision due on or before July 31, 2021, must
include a commitment by the State to meet the requirements of paragraph
(g) of this section. In each plan revision, the State must address
regional haze in each mandatory Class I Federal area located within the
State and in each mandatory Class I Federal area located outside the
State that may be affected by emissions from within the State. To meet
the core requirements for regional haze for these areas, the State must
submit an implementation plan containing the following plan elements
and supporting documentation for all required analyses:
[[Page 3125]]
(1) Calculations of baseline, current, and natural visibility
conditions; progress to date; and the uniform rate of progress. For
each mandatory Class I Federal area located within the State, the State
must determine the following:
(i) Baseline visibility conditions for the most impaired and
clearest days. The period for establishing baseline visibility
conditions is 2000 to 2004. The State must calculate the baseline
visibility conditions for the most impaired days and the clearest days
using available monitoring data. To determine the baseline visibility
condition, the State must calculate the average of the annual deciview
index values for the most impaired days and for the clearest days for
the calendar years from 2000 to 2004. The baseline visibility condition
for the most impaired days or the clearest days is the average of the
respective annual values. For purposes of calculating the uniform rate
of progress, the baseline visibility condition for the most impaired
days must be associated with the last day of 2004. For mandatory Class
I Federal areas without onsite monitoring data for 2000-2004, the State
must establish baseline values using the most representative available
monitoring data for 2000-2004, in consultation with the Administrator
or his or her designee. For mandatory Class I Federal areas with
incomplete monitoring data for 2000-2004, the State must establish
baseline values using the 5 complete years of monitoring data closest
in time to 2000-2004.
(ii) Natural visibility conditions for the most impaired and
clearest days. A State must calculate natural visibility condition by
estimating the average deciview index existing under natural conditions
for the most impaired days or the clearest days based on available
monitoring information and appropriate data analysis techniques; and
(iii) Current visibility conditions for the most impaired and
clearest days. The period for calculating current visibility conditions
is the most recent 5-year period for which data are available. The
State must calculate the current visibility conditions for the most
impaired days and the clearest days using available monitoring data. To
calculate each current visibility condition, the State must calculate
the average of the annual deciview index values for the years in the
most recent 5-year period. The current visibility condition for the
most impaired or the clearest days is the average of the respective
annual values.
(iv) Progress to date for the most impaired and clearest days.
Actual progress made towards the natural visibility condition since the
baseline period, and actual progress made during the previous
implementation period up to and including the period for calculating
current visibility conditions, for the most impaired and for the
clearest days.
(v) Differences between current visibility condition and natural
visibility condition. The number of deciviews by which the current
visibility condition exceeds the natural visibility condition, for the
most impaired and for the clearest days.
(vi) Uniform rate of progress. (A) The uniform rate of progress for
each mandatory Class I Federal area in the State. To calculate the
uniform rate of progress, the State must compare the baseline
visibility condition for the most impaired days to the natural
visibility condition for the most impaired days in the mandatory Class
I Federal area and determine the uniform rate of visibility improvement
(measured in deciviews of improvement per year) that would need to be
maintained during each implementation period in order to attain natural
visibility conditions by the end of 2064.
(B) As part of its implementation plan submission, the State may
propose (1) an adjustment to the uniform rate of progress for a
mandatory Class I Federal area to account for impacts from
anthropogenic sources outside the United States and/or (2) an
adjustment to the uniform rate of progress for the mandatory Class I
Federal area to account for impacts from wildland prescribed fires that
were conducted with the objective to establish, restore, and/or
maintain sustainable and resilient wildland ecosystems, to reduce the
risk of catastrophic wildfires, and/or to preserve endangered or
threatened species during which appropriate basic smoke management
practices were applied. To calculate the proposed adjustment(s), the
State must add the estimated impact(s) to the natural visibility
condition and compare the baseline visibility condition for the most
impaired days to the resulting sum. If the Administrator determines
that the State has estimated the impact(s) from anthropogenic sources
outside the United States and/or wildland prescribed fires using
scientifically valid data and methods, the Administrator may approve
the proposed adjustment(s) to the uniform rate of progress.
(2) Long-term strategy for regional haze. Each State must submit a
long-term strategy that addresses regional haze visibility impairment
for each mandatory Class I Federal area within the State and for each
mandatory Class I Federal area located outside the State that may be
affected by emissions from the State. The long-term strategy must
include the enforceable emissions limitations, compliance schedules,
and other measures that are necessary to make reasonable progress, as
determined pursuant to (f)(2)(i) through (iv). In establishing its
long-term strategy for regional haze, the State must meet the following
requirements:
(i) The State must evaluate and determine the emission reduction
measures that are necessary to make reasonable progress by considering
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 anthropogenic source
of visibility impairment. The State should consider evaluating major
and minor stationary sources or groups of sources, mobile sources, and
area sources. The State must include in its implementation plan a
description of the criteria it used to determine which sources or
groups of sources it evaluated and how the four factors were taken into
consideration in selecting the measures for inclusion in its long-term
strategy. In considering the time necessary for compliance, if the
State concludes that a control measure cannot reasonably be installed
and become operational until after the end of the implementation
period, the State may not consider this fact in determining whether the
measure is necessary to make reasonable progress.
(ii) The State must consult with those States that have emissions
that are reasonably anticipated to contribute to visibility impairment
in the mandatory Class I Federal area to develop coordinated emission
management strategies containing the emission reductions necessary to
make reasonable progress.
(A) The State must demonstrate that it has included in its
implementation plan all measures agreed to during state-to-state
consultations or a regional planning process, or measures that will
provide equivalent visibility improvement.
(B) The State must consider the emission reduction measures
identified by other States for their sources as being necessary to make
reasonable progress in the mandatory Class I Federal area.
(C) In any situation in which a State cannot agree with another
State on the emission reduction measures necessary to make reasonable
progress in a mandatory Class I Federal area, the State must describe
the actions taken to resolve the disagreement. In reviewing the State's
implementation plan, the
[[Page 3126]]
Administrator will take this information into account in determining
whether the plan provides for reasonable progress at each mandatory
Class I Federal area that is located in the State or that may be
affected by emissions from the State. All substantive interstate
consultations must be documented.
(iii) The State must document the technical basis, including
modeling, monitoring, cost, engineering, and emissions information, on
which the State is relying to determine the emission reduction measures
that are necessary to make reasonable progress in each mandatory Class
I Federal area it affects. The State may meet this requirement by
relying on technical analyses developed by a regional planning process
and approved by all State participants. The emissions information must
include, but need not be limited to, information on emissions in a year
at least as recent as the most recent year for which the State has
submitted emission inventory information to the Administrator in
compliance with the triennial reporting requirements of subpart A of
this part. However, if a State has made a submission for a new
inventory year to meet the requirements of subpart A in the period 12
months prior to submission of the SIP, the State may use the inventory
year of its prior submission.
(iv) The State must consider the following additional factors in
developing its long-term strategy:
(A) Emission reductions due to ongoing air pollution control
programs, including measures to address reasonably attributable
visibility impairment;
(B) Measures to mitigate the impacts of construction activities;
(C) Source retirement and replacement schedules;
(D) Basic smoke management practices for prescribed fire used for
agricultural and wildland vegetation management purposes and smoke
management programs; and
(E) The anticipated net effect on visibility due to projected
changes in point, area, and mobile source emissions over the period
addressed by the long-term strategy.
(3) Reasonable progress goals. (i) A state in which a mandatory
Class I Federal area is located must establish reasonable progress
goals (expressed in deciviews) that reflect the visibility conditions
that are projected to be achieved by the end of the applicable
implementation period as a result of those enforceable emissions
limitations, compliance schedules, and other measures required under
paragraph (f)(2) of this section that can be fully implemented by the
end of the applicable implementation period, as well as the
implementation of other requirements of the CAA. The long-term strategy
and the reasonable progress goals must provide for an improvement in
visibility for the most impaired days since the baseline period and
ensure no degradation in visibility for the clearest days since the
baseline period.
(ii)(A) If a State in which a mandatory Class I Federal area is
located establishes a reasonable progress goal for the most impaired
days that provides for a slower rate of improvement in visibility than
the uniform rate of progress calculated under paragraph (f)(1)(vi) of
this section, the State must demonstrate, based on the analysis
required by paragraph (f)(2)(i) of this section, that there are no
additional emission reduction measures for anthropogenic sources or
groups of sources in the State that may reasonably be anticipated to
contribute to visibility impairment in the Class I area that would be
reasonable to include in the long-term strategy. The State must provide
a robust demonstration, including documenting the criteria used to
determine which sources or groups or sources were evaluated and how the
four factors required by paragraph (f)(2)(i) were taken into
consideration in selecting the measures for inclusion in its long-term
strategy. The State must provide to the public for review as part of
its implementation plan an assessment of the number of years it would
take to attain natural visibility conditions if visibility improvement
were to continue at the rate of progress selected by the State as
reasonable for the implementation period.
(B) If a State contains sources which are reasonably anticipated to
contribute to visibility impairment in a mandatory Class I Federal area
in another State for which a demonstration by the other State is
required under (f)(3)(ii)(A), the State must demonstrate that there are
no additional emission reduction measures for anthropogenic sources or
groups of sources in the State that may reasonably be anticipated to
contribute to visibility impairment in the Class I area that would be
reasonable to include in its own long-term strategy. The State must
provide a robust demonstration, including documenting the criteria used
to determine which sources or groups or sources were evaluated and how
the four factors required by paragraph (f)(2)(i) were taken into
consideration in selecting the measures for inclusion in its long-term
strategy.
(iii) The reasonable progress goals established by the State are
not directly enforceable but will be considered by the Administrator in
evaluating the adequacy of the measures in the implementation plan in
providing for reasonable progress towards achieving natural visibility
conditions at that area.
(iv) In determining whether the State's goal for visibility
improvement provides for reasonable progress towards natural visibility
conditions, the Administrator will also evaluate the demonstrations
developed by the State pursuant to paragraphs (f)(2) and (f)(3)(ii)(A)
of this section and the demonstrations provided by other States
pursuant to paragraphs (f)(2) and (f)(3)(ii)(B) of this section.
(4) If the Administrator, Regional Administrator, or the affected
Federal Land Manager has advised a State of a need for additional
monitoring to assess reasonably attributable visibility impairment at
the mandatory Class I Federal area in addition to the monitoring
currently being conducted, the State must include in the plan revision
an appropriate strategy for evaluating reasonably attributable
visibility impairment in the mandatory Class I Federal area by visual
observation or other appropriate monitoring techniques.
(5) So that the plan revision will serve also as a progress report,
the State must address in the plan revision the requirements of
paragraphs (g)(1) through (5) of this section. However, the period to
be addressed for these elements shall be the period since the most
recent progress report.
(6) Monitoring strategy and other implementation plan requirements.
The State must submit with the implementation plan a monitoring
strategy for measuring, characterizing, and reporting of regional haze
visibility impairment that is representative of all mandatory Class I
Federal areas within the State. Compliance with this requirement may be
met through participation in the Interagency Monitoring of Protected
Visual Environments network. The implementation plan must also provide
for the following:
(i) The establishment of any additional monitoring sites or
equipment needed to assess whether reasonable progress goals to address
regional haze for all mandatory Class I Federal areas within the State
are being achieved.
(ii) Procedures by which monitoring data and other information are
used in determining the contribution of emissions from within the State
to regional haze visibility impairment at mandatory Class I Federal
areas both within and outside the State.
[[Page 3127]]
(iii) For a State with no mandatory Class I Federal areas,
procedures by which monitoring data and other information are used in
determining the contribution of emissions from within the State to
regional haze visibility impairment at mandatory Class I Federal areas
in other States.
(iv) The implementation plan must provide for the reporting of all
visibility monitoring data to the Administrator at least annually for
each mandatory Class I Federal area in the State. To the extent
possible, the State should report visibility monitoring data
electronically.
(v) A statewide inventory of emissions of pollutants that are
reasonably anticipated to cause or contribute to visibility impairment
in any mandatory Class I Federal area. The inventory must include
emissions for the most recent year for which data are available, and
estimates of future projected emissions. The State must also include a
commitment to update the inventory periodically.
(vi) Other elements, including reporting, recordkeeping, and other
measures, necessary to assess and report on visibility.
(g) Requirements for periodic reports describing progress towards
the reasonable progress goals. Each State identified in Sec. 51.300(b)
must periodically submit a report to the Administrator evaluating
progress towards the reasonable progress goal for each mandatory Class
I Federal area located within the State and in each mandatory Class I
Federal area located outside the State that may be affected by
emissions from within the State. The first progress report is due 5
years from submittal of the initial implementation plan addressing
paragraphs (d) and (e) of this section. The first progress reports must
be in the form of implementation plan revisions that comply with the
procedural requirements of Sec. 51.102 and Sec. 51.103. Subsequent
progress reports are due by January 31, 2025, July 31, 2033, and every
10 years thereafter. Subsequent progress reports must be made available
for public inspection and comment for at least 30 days prior to
submission to EPA and all comments received from the public must be
submitted to EPA along with the subsequent progress report, along with
an explanation of any changes to the progress report made in response
to these comments. Periodic progress reports must contain at a minimum
the following elements:
* * * * *
(3) For each mandatory Class I Federal area within the State, the
State must assess the following visibility conditions and changes, with
values for most impaired, least impaired and/or clearest days as
applicable expressed in terms of 5-year averages of these annual
values. The period for calculating current visibility conditions is the
most recent 5-year period preceding the required date of the progress
report for which data are available as of a date 6 months preceding the
required date of the progress report.
(i)(A) Progress reports due before January 31, 2025. The current
visibility conditions for the most impaired and least impaired days.
(B) Progress reports due on and after January 31, 2025. The current
visibility conditions for the most impaired and clearest days;
(ii)(A) Progress reports due before January 31, 2025. The
difference between current visibility conditions for the most impaired
and least impaired days and baseline visibility conditions.
(B) Progress reports due on and after January 31, 2025. The
difference between current visibility conditions for the most impaired
and clearest days and baseline visibility conditions.
(iii)(A) Progress reports due before January 31, 2025. The change
in visibility impairment for the most impaired and least impaired days
over the period since the period addressed in the most recent plan
required under paragraph (f) of this section.
(B) Progress reports due on and after January 31, 2025. The change
in visibility impairment for the most impaired and clearest days over
the period since the period addressed in the most recent plan required
under paragraph (f) of this section.
(4) An analysis tracking the change over the period since the
period addressed in the most recent plan required under paragraph (f)
of this section in emissions of pollutants contributing to visibility
impairment from all sources and activities within the State. Emissions
changes should be identified by type of source or activity. With
respect to all sources and activities, the analysis must extend at
least through the most recent year for which the state has submitted
emission inventory information to the Administrator in compliance with
the triennial reporting requirements of subpart A of this part as of a
date 6 months preceding the required date of the progress report. With
respect to sources that report directly to a centralized emissions data
system operated by the Administrator, the analysis must extend through
the most recent year for which the Administrator has provided a State-
level summary of such reported data or an internet-based tool by which
the State may obtain such a summary as of a date 6 months preceding the
required date of the progress report. The State is not required to
backcast previously reported emissions to be consistent with more
recent emissions estimation procedures, and may draw attention to
actual or possible inconsistencies created by changes in estimation
procedures.
(5) An assessment of any significant changes in anthropogenic
emissions within or outside the State that have occurred since the
period addressed in the most recent plan required under paragraph (f)
of this section including whether or not these changes in anthropogenic
emissions were anticipated in that most recent plan and whether they
have limited or impeded progress in reducing pollutant emissions and
improving visibility.
(6) An assessment of whether the current implementation plan
elements and strategies are sufficient to enable the State, or other
States with mandatory Class I Federal areas affected by emissions from
the State, to meet all established reasonable progress goals for the
period covered by the most recent plan required under paragraph (f) of
this section.
(7) For progress reports for the first implementation period only,
a review of the State's visibility monitoring strategy and any
modifications to the strategy as necessary.
(8) For a state with a long-term strategy that includes a smoke
management program for prescribed fires on wildland that conducts a
periodic program assessment, a summary of the most recent periodic
assessment of the smoke management program including conclusions if any
that were reached in the assessment as to whether the program is
meeting its goals regarding improving ecosystem health and reducing the
damaging effects of catastrophic wildfires.
(h) Determination of the adequacy of existing implementation plan.
At the same time the State is required to submit any progress report to
EPA in accordance with paragraph (g) of this section, the State must
also take one of the following actions based upon the information
presented in the progress report:
(1) If the State determines that the existing implementation plan
requires no further substantive revision at this time in order to
achieve established goals for visibility improvement and emissions
reductions, the State must provide to the Administrator a declaration
that revision of the existing
[[Page 3128]]
implementation plan is not needed at this time.
* * * * *
(i) * * *
(2) The State must provide the Federal Land Manager with an
opportunity for consultation, in person at a point early enough in the
State's policy analyses of its long-term strategy emission reduction
obligation so that information and recommendations provided by the
Federal Land Manager can meaningfully inform the State's decisions on
the long-term strategy. The opportunity for consultation will be deemed
to have been early enough if the consultation has taken place at least
120 days prior to holding any public hearing or other public comment
opportunity on an implementation plan (or plan revision) for regional
haze required by this subpart. The opportunity for consultation on an
implementation plan (or plan revision) or on a progress report must be
provided no less than 60 days prior to said public hearing or public
comment opportunity. This consultation must include the opportunity for
the affected Federal Land Managers to discuss their:
* * * * *
(ii) Recommendations on the development and implementation of
strategies to address visibility impairment.
(3) In developing any implementation plan (or plan revision) or
progress report, the State must include a description of how it
addressed any comments provided by the Federal Land Managers.
(4) The plan (or plan revision) must provide procedures for
continuing consultation between the State and Federal Land Manager on
the implementation of the visibility protection program required by
this subpart, including development and review of implementation plan
revisions and progress reports, and on the implementation of other
programs having the potential to contribute to impairment of visibility
in mandatory Class I Federal areas.
0
11. Section 51.309 is amended by:
0
a. Revising paragraph (b)(4);
0
b. Removing and reserving paragraph (b)(8);
0
c. Revising paragraphs (d)(4)(v), (d)(10) introductory text, (d)(10)(i)
introductory text, and (d)(10)(ii) introductory text;
0
d. Adding paragraphs (d)(10)(iii) and (iv); and
0
e. Revising paragraph (g)(2)(iii).
The revisions and additions read as follows:
Sec. 51.309 Requirements related to the Grand Canyon Visibility
Transport Commission.
* * * * *
(b) * * *
(4) Fire means wildfire, wildland fire, prescribed fire, and
agricultural burning conducted and occurring on Federal, State, and
private wildlands and farmlands.
* * * * *
(d) * * *
(4) * * *
(v) Market trading program. The implementation plan must include
requirements for a market trading program to be implemented in the
event that a milestone is not achieved. The plan shall require that the
market trading program be activated beginning no later than 15 months
after the end of the first year in which the milestone is not achieved.
The plan shall also require that sources comply, as soon as
practicable, with the requirement to hold allowances covering their
emissions. Such market trading program must be sufficient to achieve
the milestones in paragraph (d)(4)(i) of this section, and must be
consistent with the elements for such programs outlined in Sec.
51.308(e)(2)(vi). Such a program may include a geographic enhancement
to the program to address the requirement under Sec. 51.302(b) related
to reasonably attributable impairment from the pollutants covered under
the program.
* * * * *
(10) Periodic implementation plan revisions and progress reports.
Each Transport Region State must submit to the Administrator periodic
reports in the years 2013 and as specified for subsequent progress
reports in Sec. 51.308(g). The progress report due in 2013 must be in
the form of an implementation plan revision that complies with the
procedural requirements of Sec. Sec. 51.102 and 51.103.
(i) The report due in 2013 will assess the area for reasonable
progress as provided in this section for mandatory Class I Federal
area(s) located within the State and for mandatory Class I Federal
area(s) located outside the State that may be affected by emissions
from within the State. This demonstration may be based on assessments
conducted by the States and/or a regional planning body. The progress
report due in 2013 must contain at a minimum the following elements:
* * * * *
(ii) At the same time the State is required to submit the 5-year
progress report due in 2013 to EPA in accordance with paragraph
(d)(10)(i) of this section, the State must also take one of the
following actions based upon the information presented in the progress
report:
* * * * *
(iii) The requirements of Sec. 51.308(g) regarding requirements
for periodic reports describing progress towards the reasonable
progress goals apply to States submitting plans under this section,
with respect to subsequent progress reports due after 2013.
(iv) The requirements of Sec. 51.308(h) regarding determinations
of the adequacy of existing implementation plans apply to States
submitting plans under this section, with respect to subsequent
progress reports due after 2013.
* * * * *
(g) * * *
(2) * * *
(iii) The Transport Region State may consider whether any
strategies necessary to achieve the reasonable progress goals required
by paragraph (g)(2) of this section are incompatible with the
strategies implemented under paragraph (d) of this section to the
extent the State adequately demonstrates that the incompatibility is
related to the costs of the compliance, the time necessary for
compliance, the energy and nonair quality environmental impacts of
compliance, or the remaining useful life of any existing source subject
to such requirements.
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
12. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Sec. 52.26 [Removed and Reserved]
0
13. Section 52.26 is removed and reserved.
Sec. 52.29 [Removed and Reserved]
0
14. Section 52.29 is removed and reserved.
Sec. 52.61 [Amended]
0
15. Section 52.61 is amended by removing and reserving paragraph (b).
0
16. Section 52.145 is amended by revising paragraph (b) and removing
and reserving paragraph (c).
The revision reads as follows:
Sec. 52.145 Visibility protection.
* * * * *
(b) Regulations for visibility monitoring and new source review.
The provisions of Sec. Sec. 52.27 and 52.28 are hereby incorporated
and made part of
[[Page 3129]]
the applicable plan for the State of Arizona.
* * * * *
Sec. 52.281 [Amended]
0
17. Section 52.281 is amended by removing and reserving paragraphs (b)
and (e).
0
18. Section 52.344 is amended by revising paragraph (b) to read as
follows:
Sec. 52.344 Visibility protection.
* * * * *
(b) The Visibility NSR regulations are approved for industrial
source categories regulated by the NSR and PSD regulations which have
previously been approved by EPA. However, Colorado's NSR and PSD
regulations have been disapproved for certain sources as listed in 40
CFR 52.343(a)(1). The provisions of 40 CFR 52.28 are hereby
incorporated and made a part of the applicable plan for the State of
Colorado for these sources.
0
19. Section 52.633 is amended by revising paragraph (b) and removing
and reserving paragraph (c).
The revision reads as follows.
Sec. 52.633 Visibility protection.
* * * * *
(b) Regulations for visibility monitoring and new source review.
The provisions of Sec. Sec. 52.27 and 52.28 are hereby incorporated
and made part of the applicable plan for the State of Hawaii.
* * * * *
Sec. 52.690 [Amended]
0
20. Section 52.690 is amended by removing and reserving paragraphs (b)
and (c).
Sec. 52.1033 [Amended]
0
21. Section 52.1033 is amended by removing and reserving paragraphs (a)
and (c).
0
22. Section 52.1183 is amended by revising paragraph (b) and removing
and reserving paragraphs (a) and (c).
The revision reads as follows.
Sec. 52.1183 Visibility protection.
* * * * *
(b) Regulation for visibility monitoring and new source review. The
provisions of Sec. 52.28 are hereby incorporated and made a part of
the applicable plan for the State of Michigan.
* * * * *
0
23. Section 52.1236 is amended by revising paragraph (b) and removing
and reserving paragraph (c).
The revision reads as follows:
Sec. 52.1236 Visibility protection.
* * * * *
(b) Regulation for visibility monitoring and new source review. The
provisions of Sec. 52.28 are hereby incorporated and made a part of
the applicable plan for the State of Minnesota.
* * * * *
Sec. 52.1339 [Amended]
0
24. Section 52.1339 is amended by removing and reserving paragraph (b).
Sec. 52.1387 [Amended]
0
25. Section 52.1387 is amended by removing and reserving paragraph (b).
0
26. Section 52.1488 is amended by revising paragraph (b) and removing
and reserving paragraph (c).
The revision reads as follows.
Sec. 52.1488 Visibility protection.
* * * * *
(b) Regulation for visibility monitoring and new source review. The
provisions of Sec. 52.28 are hereby incorporated and made a part of
the applicable plan for the State of Nevada except for that portion
applicable to the Clark County Department of Air Quality and
Environmental Management.
* * * * *
0
27. Section 52.1531 is amended by revising paragraph (b) and removing
and reserving paragraph (c).
The revision reads as follows.
Sec. 52.1531 Visibility protection.
* * * * *
(b) Regulation for visibility monitoring and new source review. The
provisions of Sec. 52.28 are hereby incorporated and made a part of
the applicable plan for the State of New Hampshire.
* * * * *
Sec. 52.2132 [Amended]
0
28. Section 52.2132 is amended by removing and reserving paragraphs (b)
and (c).
0
29. Section 52.2179 is amended by revising paragraph (b) and removing
and reserving paragraph (c).
The revision reads as follows:
Sec. 52.2179 Visibility protection.
* * * * *
(b) Regulation for visibility monitoring and new source review. The
provisions of Sec. 52.28 are hereby incorporated and made a part of
the applicable plan for the State of South Dakota.
* * * * *
Sec. 52.2304 [Amended]
0
30. Section 52.2304 is amended by removing and reserving paragraph (b).
0
31. Section 52.2383 is amended by revising paragraph (b) to read as
follows:
Sec. 52.2383 Visibility protection.
* * * * *
(b) Regulations for visibility monitoring and new source review.
The provisions of Sec. 52.27 are hereby incorporated and made part of
the applicable plan for the State of Vermont.
0
32. Section 52.2452 is amended by revising paragraph (a) and removing
and reserving paragraphs (b) and (c).
The revision reads as follows:
Sec. 52.2452 Visibility protection.
(a) Reasonably Attributable Visibility Impairment. The requirements
of section 169A of the Clean Air Act are not met because the plan does
not include approvable measures for meeting the requirements of 40 CFR
51.305 for protection of visibility in mandatory Class I Federal areas.
* * * * *
0
33. Section 52.2533 is amended by revising paragraphs (a) and (b) and
removing and reserving paragraph (c).
The revision reads as follows:
Sec. 52.2533 Visibility protection.
(a) Reasonably Attributable Visibility Impairment. The requirements
of section 169A of the Clean Air Act are not met because the plan does
not include approvable measures for meeting the requirements of 40 CFR
51.305 and 51.307 for protection of visibility in mandatory Class I
Federal areas.
(b) Regulation for visibility monitoring and new source review. The
provisions of Sec. 52.28 are hereby incorporated and made a part of
the applicable plan for the State of West Virginia.
* * * * *
Sec. 52.2781 [Amended]
0
34. Section 52.2781 is amended by removing and reserving paragraphs (b)
and (c).
[FR Doc. 2017-00268 Filed 1-9-17; 8:45 am]
BILLING CODE 6560-50-P