CHAPTER 4 REGIONAL HAZE AND VISIBILITY: STATE AND FEDERAL ROLES

• Jurisdiction: United States

Air Quality Regulation For The Natural Resources Industry
(2000)
CHAPTER 4
REGIONAL HAZE AND VISIBILITY: STATE AND FEDERAL ROLES
Dennis L. Arfmann, Esq.
Brent A. Tracy, Esq. ¹
Holme Roberts & Owen LLC
Denver, Colorado

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I. Introduction

This paper will discuss several issues related to regional haze and visibility, including the Clean Air Act amendments; EPA's implementation of the PSD and visibility provisions of the Clean Air Act; litigation brought in response to EPA's rules; and the work of the Grand Canyon Visibility Transport Commission and its successor, the Western Air Regional Partnership, and the Federal Land Managers Air Quality Related Values Work Group.

In addition, the paper looks at the Federal Land Managers' (FLMs) activities in this area, based on publications and other sources, and compares those activities to the authority granted by statute and regulation. The paper focuses on three areas that the FLMs can affect in the process: visibility impairment analysis for Class I areas; air quality related values ("AQRV") impairment analysis for Class I areas (including sulfate and nitrate deposition effects for Class I areas, which are the primary non-visibility impairments to AQRVs); and modeling.

II. Clean Air Act

Congress acknowledged the environmental problems created by regional haze when it amended the Clean Air Act ("CAA") in 1977 and in 1990. In 1977, Congress established two sets of provisions to address visibility problems: the Prevention of Significant Deterioration (PSD) provisions and the Visibility provisions. In 1990, Congress authorized interstate visibility transport commissions to be created, specifically creating the Grand Canyon Visibility Transport Commission.

II.A. Clean Air Act, 1977 Amendments

PSD Provisions. Section 160(2) of the CAA declares that one of purposes of section 160 of the Act is "to preserve, protect, and enhance the air quality in national parks, national wilderness areas, national monuments, national seashores, and other areas of special national or regional natural, recreational, scenic, or historic value."² To further this purpose, Congress declared that all international parks, national wilderness areas exceeding 5,000 acres in size, national memorial parks exceeding 5,000 acres in size, and national parks exceeding 6,000 acres in size be designated as Class I areas. Such areas are known as "mandatory federal Class I areas."

To implement section 160(2), EPA developed the PSD program. Under the program,

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EPA defines Class I areas as those having the most pristine air and receiving the greatest protection under the Act and EPA, states and tribes may designate Class I areas. Most Class I areas are located west of the Mississippi River. Prior to either construction of a major new source or major modification of an existing source, the PSD program requires application to the EPA or the state for a permit. The permit is issued only if emissions from the new or modified major source will not exceed, or contribute to the exceeding of, maximum allowable increments under the CAA.³

Visibility Provisions. Section 169A of the CAA established what is known as the national visibility goal: "the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal area which impairment results from manmade air pollution."⁴ Under section 169A(a)(2), the Secretary of the Interior is required to consult with other Federal Land Managers to identify those mandatory Class I federal areas where visibility is an important value.⁵ Further, EPA is required to promulgate regulations to ensure a reasonable progress toward meeting the national visibility goal.⁵

EPA's Visibility Protection Program focuses on emissions from existing sources that impair visibility in Class I areas. EPA began implementing the Visibility Protection Program in November 1979 by identifying 156 mandatory Class I areas where visibility is an important value.⁶See attachment A for a map of the Class I areas.

On December 2, 1980, EPA promulgated final visibility regulations.⁷ In its 1980 visibility regulations, EPA distinguished between two types of visibility impairment, and chose to promulgate the regulations in two phases. The first phase addressed visibility impairment "reasonably attributable" to a single source or group of sources, so-called "plume blight." The second phase was to address more complex problems, such as regional haze.⁸ EPA realized that, at the time the final rule was promulgated, the analytical techniques for measuring regional haze and for identifying sources causing regional haze were insufficiently precise and needed further evaluation before EPA could "routinely require their use in a regulatory program."⁹ On July 1, 1999, EPA promulgated a final rule addressing regional haze.¹⁰ This rule is discussed in detail later in this paper.

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II.B. Clean Air Act, 1990 Amendments.

In amending the CAA in 1990, Congress added Section 169B, which requires that EPA, along with the National Park Service and other appropriate federal agencies, conduct research to identify and evaluate sources and source regions of both visibility impairment and regions that provide predominately clean air in Class I areas.¹¹ As part of its research, EPA is directed to establish visibility transport regions, including the Grand Canyon Visibility Transport Commission (GCVTC).¹²

GCVTC. Established by the EPA in 1991, the GCVTC was charged with the responsibility of performing a four-year assessment of scientific and technical information related to adverse visibility impacts on Class I areas resulting from potential or projected growth in emissions from sources located in the Grand Canyon visibility transport region. This region is comprised of the Grand Canyon National Park and 15 other Class I areas on the Colorado Plateau, including: the Mount Baldy Wilderness, the Petrified Forest National Park, and the Sycamore Canyon Wilderness, all in Arizona; the Black Canyon of the Gunnison Wilderness, the Flat Tops Wilderness, the Maroon Bells Wilderness, the Mesa Verde Wilderness, the Wemenuche Wilderness, and the Wild Elk Wilderness, all in Colorado; the San Pedro Parks Wilderness in New Mexico; Arches National Park, Bryce Canyon National Park, Canyonlands National Park, Capitol Reef National Park, and Zion National Park, all in Utah.

The GCVTC is made up of the Governors of the states affected, the heads of the Navajo, Hopi, Acoma Pueblo, and Hualapai Tribes, representatives from the National Park Service, Bureau of Land Management, the Forest Service, the Fish and Wildlife Service, and the Columbia Inter-Tribal Fish Commission. Governor Fife Symington of Arizona served as the Chairman of the GCVTC and Governor Michael Levitt of Utah served as the vice-chairman.

After conducting extensive research and analysis, completing a preliminary report titled Draft Options for Improving Western Vistas, and reviewing public comment on the draft report, the GCVTC submitted its final recommendations for protecting visibility in the Grand Canyon region to EPA in June of 1996. Those recommendations include:

• Policies regarding air pollution prevention should be based on energy conservation, increased energy efficiency and promotion of the use of renewable resources for energy production.

• Growth of emissions that may affect air quality in clean air corridors at Class I areas should be carefully tracked.

• For stationary sources, impacts of current requirements under the CAA should be closely monitored and ongoing source attribution studies should be conducted.

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• Pending further studies of areas in and near national parks, local, state, tribal, federal and private parties should work cooperatively to develop strategies, expand data collection and improve modeling for reducing or preventing visibility impairment in areas within and adjacent to parks and wilderness areas.

• For mobile sources, emissions should be capped at the lowest level achieved and a regional emissions budget should be established. Further, national strategies aimed at further reducing tailpipe emissions should be endorsed.

• Programs should be implemented to minimize emissions and visibility impacts from fires prescribed by the Forest Service and programs to educate the public about fire's effect on visibility should be implemented.¹³

Western Regional Air Partnership. The final recommendation that the GCVTC made in its June 1996 report was that the GCVTC or a similar entity be empowered to oversee, promote, and support many of the GCVTC's recommendations. In response to this recommendation, a collaboration of several tribal governments, ten state governments (Arizona, Colorado, Idaho, Montana, New Mexico, North Dakota, Oregon, Utah, Washington, and Wyoming), two federal land management agencies, and the EPA was formed. This collaboration is known as the Western Regional Air Partnership (WRAP) and promotes and monitors implementation of the GCVTC's recommendations. The WRAP, which solicits comment on air quality issues from the general public, may also address other common western regional air quality issues raised by its membership.

Activities undertaken by the WRAP include soliciting bids for the development of a mobile source emissions inventory to assist in understanding and identifying methods to improve visibility in the Grand Canyon regions and the release of its Recommendation from WRAP to EPA on Proposed "Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control Requirements (Sept. 17, 1999) ("Recommendation").¹⁴ The goal of the Recommendation is to "keep small refineries in business as they implement federal regulations improving air quality by reducing the sulfur content in gasoline."¹⁵ On November 19, 1999, the WRAP published its Work Plan for Regional Haze. This work plan outlines WRAP's ongoing and planned...