REGIONAL HAZE AND VISIBILITY ISSUES

• Jurisdiction: United States

Air Quality Challenges Facing the Natural Resources Industry in the Western United States
(Nov 2007)
CHAPTER 8D
REGIONAL HAZE AND VISIBILITY ISSUES
Paul M. Seby
McKenna Long & Aldridge
Denver, Colorado

Why Visibility Matters and How It May Effect Your Operations

• Federal/State EIS processes for energy development

-- "FLAG Guideline"

• Multiple Regulatory Forums

-- "reasonable progress" measures for existing sources

-- BART for existing sources

-- PSD permitting

-- area of minor source permitting

• A statutory program that has been heavily shaped by the U.S. Court of Appeals for the D.C. District

[Page 8D-2]

The Clean Air Act's Visibility Protection Program

• CAA § 169A(a)(1) established a "national goal" for 156 Class I Areas.

• CAA § 169A also carefully prescribes roles for both EPA and the states.

-- EPA to provide guidance to the states regarding methods of measuring, modeling, and addressing visibility impairment.

-- EPA directed to issue regulations requiring SIPs to contain "emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal..." Such regulations must provide for state adoption of a "long-term strategy (ten to fifteen years) for making reasonable progress toward meeting the national goal."

• Congress made the judgment that states can best determine for themselves the proper balance between visibility improvement in Class I areas within the state and the cost the state and its citizens should bear in obtaining that improvement.

American Corn Growers et al. v. EPA

• The 1999 RHR BART regulations obligated states to apply BART in a "collective" or "group" fashion rather than on a source-by-source basis for:

-- Determining Source Attribution ("cause or contribute")

-- Determining degree of visibility improvement factor.

• The D.C. Circuit invalidated EPA's "group-BART" approach.

[Page 8D-3]

Center for Energy & Economic Development v. EPA

• After the Corn Growers decision, EPA issued a "western" amendment to the RHR, putting in place a "better than BART" SO2 program.

• Was intended to be a template for future NOx and PM programs.

• CEED challenged because based upon the Group-BART approach EPA used before, and because EPA's rule.

-- contained substantial regulatory uncertainty

-- disadvantaged the siting of new sources

-- did not provide any humanly perceptible visibility benefits

• The Court unanimously held that EPA's...