IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

 

PHOENIX CEMENT COMPANY, 

 Petitioner, 

 v. 

UNITED STATES 

ENVIRONMENTAL PROTECTION 

AGENCY, 

 Respondent. 

 

STATE OF ARIZONA, 

 Petitioner, 

 v. 

UNITED STATES 

ENVIRONMENTAL PROTECTION 

AGENCY and GINA McCARTHY, 

Administrator 

 Respondents. 

 

ARIZONA MINING ASSOCIATION, 

 Petitioner, 

 v. 

UNITED STATES 

ENVIRONMENTAL PROTECTION 

AGENCY, Respondent. 

 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

)

No. 13-73383 

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

)

No. 13-73393 

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

)

No. 13-73401 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-1 Page: 1 of 5 (1 of 141)
RESPONDENTS’ UNOPPOSED MOTION 

FOR ENLARGEMENT OF BRIEF SIZE

Pursuant to Circuit Rule 32-2, respondents United States Environmental 

Protection Agency, et al. (collectively “EPA”) in the above-captioned consolidated 

petitions for review move the Court for leave to file the accompanying 24,288 

word Brief of Respondent EPA (“Response Brief.”). The Response Brief is EPA’s 

consolidated response to the opening briefs submitted by Petitioners and by amicus 

Tucson Electric Power Company, which collectively total 37,298 words.1

 Counsel 

for EPA has contacted counsel for all Petitioners, and is informed that no party 

opposes EPA’s motion to file an overlength brief. 

In further support of its motion, and as is set forth in the accompanying 

Declaration of Angeline Purdy, EPA states as follows:

1. Petitioners seek review of an EPA final action published in the 

Federal Register at 78 Fed. Reg. 46,142 (July 30, 2013) and entitled “Approval and 

Disapproval of Air Quality State Implementation Plans; Arizona; Regional Haze 

and Interstate Transport Requirements” (“Rule”). On November 19, 2013, the 

Court granted the Parties’ motion to consolidate the above-captioned matters. See

ECF No. 8867656. 

 

1

See Petitioner State of Arizona’s Opening Brief, ECF No. 8940288 (13,921 

words); Brief of Petitioner Arizona Mining Association, ECF No. 8948493 (13,648 

words); Petitioner Phoenix Cement Company’s Opening Brief, ECF No. 8947898 

(5,501 words); see also Brief of Amicus Curiae Tucson Electric Power Co. in 

Support of Petitioner State of Arizona, ECF No. 8948740 (4,228 words). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-1 Page: 2 of 5 (2 of 141)
 2. Under Fed. R. App. P. 32(a)(7)(B)(i), a response brief is limited to 

14,000 words. Circuit Rule 28-4 automatically allows an additional 1,400 words 

for a consolidated brief filed in response to multiple opening briefs. In this case, 

however, Petitioners have filed three opening briefs totaling 33,070 words; in 

addition, Tucson Power has submitted an amicus brief of 5,501 words. EPA’s 

consolidated response brief is 24,288 words – 8,888 more than normally allowed 

for a consolidated response brief under Federal and Circuit Rules, but slightly less 

than 75% of the the total words filed by Petitioners (not including amicus Tucson 

Electric Power), and 17,712 fewer words than EPA would have been entitled to 

had it submitted a separate response to each of Petitioners’ briefs. 

 3. The length of the Response Brief is roughly commensurate with the 

consolidated response brief filed by EPA in the related case of Arizona v. EPA, No. 

13-70366 (and consolidated cases) (9th Cir., filed Jan. 31, 2013). See No. 13-

70366, ECF Nos. 8899443 (EPA’s motion for leave to file consolidated response 

brief of 26,072 words), 8906130 (order granting motion). 

 4. EPA has made every effort to limit the size of its Response Brief. 

This case nonetheless arises against a complicated regulatory and factual 

background that requires some explication. In addition, although Petitioners’ 

arguments overlap in some respects and have been addressed in a consolidated 

manner wherever possible, each Petitioner has separately raised unique arguments 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-1 Page: 3 of 5 (3 of 141)
that EPA must respond to individually. Compare, e.g., Response Brief at 26-37 

(addressing overlapping petitioner arguments) with Response Brief at 52-61, 93-

100 (addressing individual arguments) 

 EPA therefore respectfully requests leave to file the accompanying 24,288-

word Response Brief. 

Respectfully submitted, ROBERT G. DREHER 

Assistant Attorney General 

/s/ Angeline Purdy 

__________________________ 

ANGELINE PURDY 

Environmental Defense Section 

Environment & Natural Resources 

 Division 

United States Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044 

(202) 514-0996 

Counsel for Respondents

Of Counsel: 

CHARLOTTE WITHEY 

U.S. Environmental Protection Agency, Region IX 

Office of Regional Counsel 

M. LEA ANDERSON 

MATTHEW C. MARKS 

U.S. Environmental Protection Agency 

Office of General Counsel 

April 18, 2014 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-1 Page: 4 of 5 (4 of 141)
CERTIFICATE OF SERVICE

 I hereby certify that on April 18, 2014, I filed the foregoing Unopposed 

Motion for Enlargement of Brief Size, together with the accompanying Declaration 

of Angeline Purdy and Brief of Respondent EPA, via the Court’s CM/ECF system, 

which will electronically serve all counsel of record. 

 /s Angeline Purdy 

 ____________________ 

 Angeline Purdy 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-1 Page: 5 of 5 (5 of 141)
IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

 

PHOENIX CEMENT COMPANY, 

 Petitioner, 

 v. 

UNITED STATES 

ENVIRONMENTAL PROTECTION 

AGENCY, 

 Respondent. 

 

STATE OF ARIZONA, 

 Petitioner, 

 v. 

UNITED STATES 

ENVIRONMENTAL PROTECTION 

AGENCY and GINA McCARTHY, 

Administrator 

 Respondents. 

 

ARIZONA MINING ASSOCIATION, 

 Petitioner, 

 v. 

UNITED STATES 

ENVIRONMENTAL PROTECTION 

AGENCY, Respondent. 

 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

)

No. 13-73383 

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

)

No. 13-73393 

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

)

No. 13-73401 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-2 Page: 1 of 4 (6 of 141)
DECLARATION OF ANGELINE PURDY IN SUPPORT OF 

RESPONDENTS’ UNOPPOSED MOTION 

FOR ENLARGEMENT OF BRIEF SIZE

 I, Angeline Purdy, declare the following under penalty of perjury. 

 1. I am a Senior Trial Attorney with the United States Department of 

Justice to whom responsibility for this case has been assigned. 

 2. This declaration is submitted in support of Respondents’ United States 

Environmental Protection Agency, et al.’s (collectively “EPA’s”) unopposed 

motion for leave to file a 24,288 word consolidated response brief (“Response 

Brief”) in the above-captioned consolidated petitions for review. 

 3. Petitioners seek review of an EPA final action published in the 

Federal Register at 78 Fed. Reg. 46,142 (July 30, 2013) and entitled “Approval and 

Disapproval of Air Quality State Implementation Plans; Arizona; Regional Haze 

and Interstate Transport Requirements.” On November 19, 2013, the Court 

granted the Parties’ motion to consolidate the above-captioned matters. See ECF 

No. 8867656. 

 4. Petitioners have filed three separate opening briefs totaling 33,070 

words. See Petitioner State of Arizona’s Opening Brief, ECF No. 8940288 

(13,921 words); Brief of Petitioner Arizona Mining Association, ECF No. 8948493 

(13,648 words); Petitioner Phoenix Cement Company’s Opening Brief, ECF No. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-2 Page: 2 of 4 (7 of 141)
8947898 (5,501 words). Amicus Curiae Tucson Electric Power Company has also 

filed a brief of 4,228 words. See Brief of Amicus Curiae Tucson Electric Power 

Co. in Support of Petitioner State of Arizona, ECF No. 8948740. 

 5. EPA’s consolidated response brief is 24,288 words – 8,888 more than 

normally allowed for a consolidated response brief under Federal and Circuit Rules, 

but slightly less than 75% the total words filed by Petitioners, and 17,712 fewer 

words than EPA would have been entitled to had it submitted a separate response 

to each of Petitioners’ briefs. The length of the Response Brief is also roughly 

commensurate with the 26,072-word consolidated response brief filed by EPA in 

the related case of Arizona v. EPA, No. 13-70366 (and consolidated cases) (9th Cir., 

filed Jan. 31, 2013). 

 6. EPA has made every effort to limit the size of its Response Brief. 

This case nonetheless arises against a complicated regulatory and factual 

background that requires some explication. In addition, although Petitioners’ 

arguments overlap in some respects and have been addressed in a consolidated 

manner wherever possible, each Petitioner has separately raised unique arguments 

that EPA must respond to individually. 

 7. I have contacted counsel for all Petitioners, and am informed that no 

party opposes EPA’s request for leave to file a consolidated response brief of 

24,288 words.

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-2 Page: 3 of 4 (8 of 141)
 I declare under penalty of perjury that the foregoing is true and correct to the 

best of my knowledge and belief. 

Executed this 18th day of April, 2014, in Washington, D.C. 

 /s Angeline Purdy 

 _____________________ 

 Angeline Purdy 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-2 Page: 4 of 4 (9 of 141)
No. 13-73383 (and consolidated cases) 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

PHOENIX CEMENT COMPANY, et. al., 

Petitioners, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al. 

Respondents 

BRIEF OF RESPONDENT 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

PETITION FOR REVIEW OF A DECISION OF THE UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY 

Dated: April 18, 2014 ROBERT G. DREHER 

 Acting Assistant Attorney General 

 Environment and Natural Resources 

 Division 

 ANGELINE PURDY 

 U. S. Department of Justice 

 601 D St., N.W., Suite 8000 

 Washington, D.C. 20004 

 

OF COUNSEL: 

CHARLOTTE WITHEY 

EPA Office of Regional Counsel 

M. LEA ANDERSON 

MATTHEW C. MARKS 

EPA Office of General Counsel 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 1 of 132 (10 of 141)
i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................... v 

GLOSSARY ............................................................................................................ xii 

JURISDICTION ......................................................................................................... 1 

ISSUES PRESENTED ............................................................................................... 1 

STATUTES AND REGULATIONS ......................................................................... 4 

STATEMENT OF THE CASE .................................................................................. 4 

I. STATUTORY AND REGULATORY BACKGROUND .............................. 5 

A. Clean Air Act Overview ........................................................................ 5 

B. Visibility Protection Under the Act ....................................................... 5 

1. BART .......................................................................................... 8 

2. Reasonable Progress ................................................................. 10 

C. Prevention of Significant Deterioration .............................................. 11 

II. STATEMENT OF FACTS ............................................................................ 12 

SUMMARY OF ARGUMENT ............................................................................... 15 

ARGUMENT ........................................................................................................... 20 

I. EPA’S PARTIAL DISAPPROVAL OF THE ARIZONA 

REGIONAL HAZE SIP MUST BE UPHELD UNLESS THAT 

DISAPPROVAL WAS ARBITRARY, CAPRICIOUS, OR 

OTHERWISE CONTRARY TO LAW ......................................................... 20 

II. EPA’S CONGRESSIONALLY ASSIGNED ROLE IS TO 

ENSURE THAT REGIONAL HAZE SIPs CONFORM TO 

THE REQUIREMENTS OF FEDERAL LAW ............................................ 25 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 2 of 132 (11 of 141)
ii

A. EPA Is Authorized and Obligated to Disapprove SIPs That 

Do Not Conform to Applicable Law and Are Not 

Supported by Reasoned Analysis ........................................................ 26 

B. ADEC Confirms EPA’s Authority to Ensure that SIPs 

Conform to the Law And Are Reasonably Supported ........................ 32 

C. Unsupported Assertions That The SIP Met Applicable 

 Requirements Do Not Satisfy Petitioners’ Burden ............................. 35 

III. EPA REASONABLY DISAPPROVED THE STATE’S 

 DETERMINATION THAT SUNDT 4 IS NOT 

BART-ELIGIBLE ......................................................................................... 37 

A. EPA Reasonably Interpreted the Act, the Regional Haze 

 Rule, and the BART Guidelines In Concluding That 

Sundt 4 is BART-eligible .................................................................... 40 

B. The State’s Arguments Concerning Congressional 

 Intent Have Been Waived, and in Any Event Lack Merit .................. 48 

IV. EPA REASONABLY DISAPPROVED THE STATE’S 

 DETERMINATIONS THAT THE NELSON LIME PLANT 

AND THE COPPER SMELTERS WERE NOT SUBJECT TO 

BART ............................................................................................................. 50 

A. EPA Reasonably Disapproved the State’s Determination 

That the Nelson Lime Plant is Not Subject to BART ......................... 52 

1. The State’s use of modeling results was inconsistent 

with the State’s chosen approach to subject-to-BART 

determinations, and was otherwise unreasonable ..................... 52 

a. The original modeling .................................................... 53 

b. The refined modeling ...................................................... 58 

2. EPA reasonably declined to rely on undocumented 

 supplemental modeling results .................................................. 59 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 3 of 132 (12 of 141)
iii

B. EPA Reasonably Disapproved the State’s Determination 

 that No BART Determination Was Required For NOX For 

 the Hayden and Miami Smelters ......................................................... 61 

1. The record supports EPA’s conclusion that the State 

failed to demonstrate that the copper smelters lack 

the potential to emit more than 40 tons per year of 

NOX ........................................................................................... 62 

2. EPA reasonably rejected the State’s pollutant-specific 

 approach to the subject-to-BART determination ...................... 66 

V. EPA REASONABLY DISAPPROVED THE STATE’S 

 DETERMINATION THAT EXISTING CONTROLS AT THE 

COPPER SMELTERS CONSTITUTE BART FOR SO2. ............................ 72 

A. The State Did Not Conduct An Adequate Analysis Of 

Potential BART Controls For The Copper Smelters .......................... 74 

1. The State did not conduct a five-factor analysis ....................... 74 

2. The State did not conduct an adequate streamlined 

 analysis ...................................................................................... 76 

B. The SIP Did Not Include Enforceable Emissions Limitations 

 Applicable To All BART-Subject Emissions, As Required By 

 The Act And Regional Haze Rule ....................................................... 83 

VI. EPA REASONABLY DISAPPROVED THE STATE’S 

PROGRESS GOALS ..................................................................................... 86 

A. EPA Reasonably Determined That The State Had Not 

Provided The Required Statutory Analysis ......................................... 87 

B. EPA Reasonably Concluded That The State’s Four-Factor 

 Analysis Of Phoenix Cement Was Insufficient To 

Demonstrate That No Additional Controls Were 

Reasonable ........................................................................................... 93 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 4 of 132 (13 of 141)
iv

C. EPA Reasonably Concluded That The 2013 Supplement 

Did Not Establish That The State Would Meet The Glide 

Path ...................................................................................................... 98 

CONCLUSION ...................................................................................................... 101 

STATEMENT OF RELATED CASES ................................................................. 102 

CERTIFICATE CONCERNING WORD LIMITATION AND TYPEFACE ...... 103 

CERTIFICATE OF SERVICE .............................................................................. 104 

ADDENDUM 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 5 of 132 (14 of 141)
v 

 

TABLE OF AUTHORITIES

CASES

Alaska Dep’t of Envtl. Conservation v. EPA, 

 540 U.S. 461 (2004) ......................................................................... 9, 21, 27, 32, 34 

America Corn Growers Ass’n v. EPA, 

 291 F.3d 1 (D.C. Cir. 2002) ............................................................................... 8, 26 

Arkansas v. Oklahoma, 

 503 U.S. 91 (1992) ................................................................................................. 22 

Auer v. Robbins, 

 519 U.S. 452 (1997) ............................................................................................... 22 

Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 

 419 U.S. 281 (1974) ............................................................................................... 21 

Chevron U.S.A., Inc. v. EPA, 

 658 F.2d 271 (5th Cir. 1981) ................................................................................... 5 

Chevron, U.S.A. Inc. v. Echazabal, 

 536 U.S. 73 (2002) ................................................................................................. 47 

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 

 467 U.S. 837 (1984) ............................................................................................... 22 

Decker v. Nw. Envtl. Def. Ctr., 

 133 S. Ct. 1326 (2013) ........................................................................................... 23 

Department of Trans. v. Public Citizen, 

 541 U.S. 752 (2004) ............................................................................................... 45 

Devon Energy Corp. v. Kempthorne, 

 551 F3d 1030 (D.C. Cir. 2008) .............................................................................. 44 

Ethyl Corp. v. EPA, 

 541 F.2d 1 (D.C. Cir, 1976) ................................................................................... 21 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 6 of 132 (15 of 141)
vi 

General Motors Corp. v. United States, 

 496 U.S. 530 (1990) ................................................................................................. 5 

Go v. Holder, 

 744 F.3d 604 (9th Cir. 2014) ................................................................................... 23 

Gonzales v. Oregon, 

 546 U.S. 243 (2006) ............................................................................................... 24 

Hart v. Massanari, 

 266 F.3d 1155 (9th Cir. 2001) ............................................................................... 23 

Hells Canyon Alliance v. U. S. Forest Serv., 

 227 F.3d 1170 (9th Cir. 2000) ............................................................................... 23 

Iowa League of Cities v. EPA, 

 711 F.3d 844 (8th Cir. 2013) ................................................................................. 97 

Kern Cnty. Farm Bureau v. Allen, 

 450 F.3d 1072 (9th Cir. 2006) ............................................................................... 21 

MacClarence v. EPA, 

 596 F.3d 1123 (9th Cir. 2010) ............................................................................... 26 

Meritor Sav.Bank v. Vinson, 

 477 U.S. 57 (1986) ................................................................................................. 44 

Montana Sulphur & Chem. Co. v. EPA, 

 666 F.3d 1174 (9th Cir. 2012) ............................................................................... 21 

Najmabadi v. Holder, 

 597 F.3d 983 (9th Cir. 2010) ................................................................................. 98 

National Wildlife Fed’n v. U.S. Army Corps of Eng'rs, 

 384 F.3d 1163 (9th Cir. 2004) ......................................................................... 21, 22 

Natural Res. Def. Council v. EPA, 

 638 F.3d 1183 (9th Cir. 2011) ............................................................................... 21 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 7 of 132 (16 of 141)
vii 

North Dakota v. EPA, 

 730 F.3d 750 (8th Cir. 2013) ........................................ 9, 15, 25, 27, 30, 31, 34, 37 

Northern Plains Res. Council, Inc. v. Surface Transp. Bd., 

 668 F.3d 1067 (9th Cir. 2011) ............................................................................... 45 

Oklahoma v. EPA, 

 723 F.3d 1201 (10th Cir. 2013) ....................................................... 8, 15, 25, 27, 30 

Pacific Coast Fed’n of Fishermen's Ass'ns v. Bureau of Reclamation, 

 426 F.3d 1082 (9th Cir. 2005) ............................................................................... 22 

Safe Air for Everyone v. EPA, 

 488 F.3d 1088 (9th Cir. 2007) ............................................................................... 25 

Scott v. Krammer, 

 516 Fed. App’x 612 (9th Cir. 2013 ......................................................................... 32 

Texas v. EPA, 

 690 F.3d 670 (5th Cir. 2012) ................................................................................. 85 

United States v. Minnkota Power Coop., 

 831 F. Supp. 2d 1109 (D.N.D. 2011) ..................................................................... 35 

West v. Gibson, 

 527 U.S. 212 (1999) ............................................................................................... 47 

STATUTES 

Clean Air Act: 

42 U.S.C. § 7410(a)(2) ............................................................................................. 83 

42 U.S.C. § 7410(a)(2)(F) ........................................................................................ 84 

42 U.S.C. § 7410(a)(2)(J) ...................................................................................... 5, 8 

42 U.S.C. § 7410(c) ................................................................................................. 12 

42 U.S.C. § 7410(c)(1) ............................................................................................... 5 

42 U.S.C. § 7410(k)(3)........................................................................... 1, 5, 8, 25, 26 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 8 of 132 (17 of 141)
viii 

42 U.S.C. § 7410(l) .................................................................................................. 25 

42 U.S.C. § 7411(a) ................................................................................................. 93 

42 U.S.C. § 7411(a)(1) ............................................................................................. 73 

42 U.S.C. § 7411(b) ........................................................................................... 73, 93 

42 U.S.C. § 7411(b)(1)(B) ....................................................................................... 82 

42 U.S.C. § 7412 ...................................................................................................... 93 

42 U.S.C. § 7412(d) ................................................................................................. 73 

42 U.S.C. § 7412(d)(3)............................................................................................. 73 

42 U.S.C. § 7413(a)(5) ............................................................................................. 34 

42 U.S.C. § 7470(1) ................................................................................................. 11 

42 U.S.C. § 7471 ...................................................................................................... 11 

42 U.S.C. § 7472 ........................................................................................................ 6 

42 U.S.C. § 7475 .................................................................................................. 2, 77 

42 U.S.C. § 7475(a) ........................................................................................... 39, 49 

42 U.S.C. § 7475(a)(1) ............................................................................................. 11 

42 U.S.C. § 7475(a)(4) ............................................................................................. 11 

42 U.S.C. § 7475(a)(5) ............................................................................................. 11 

42 U.S.C. § 7475(d)(2)(B) ................................................................................. 11, 56 

42 U.S.C. § 7477 ...................................................................................................... 34 

42 U.S.C. § 7479(2) ................................................................................................. 49 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 9 of 132 (18 of 141)
ix 

42 U.S.C. § 7479(2)(c) ............................................................................................. 39 

42 U.S.C. § 7479(3) ................................................................................................. 82 

42 U.S.C. § 7491 ........................................................................................................ 5 

42 U.S.C. § 7491(a) ................................................................................................. 49 

42 U.S.C. § 7491(a)(1) ............................................................................................... 6 

42 U.S.C. § 7491(a)(4) ............................................................................................. 24 

42 U.S.C. § 7491(b)(2)........................................................................................... 2, 6 

42 U.S.C. § 7491(b)(2)(A) ...................................... 2, 6, 8, 17, 26, 38, 50, 69, 71, 72 

42 U.S.C. § 7491(b)(2)(B) ......................................................................................... 6 

42 U.S.C. § 7491(d) ................................................................................................. 56 

42 U.S.C. § 7491(g) ................................................................................................. 87 

42 U.S.C. § 7491(g)(1)......................................................................................... 9, 10 

42 U.S.C. § 7491(g)(2)....................................................................... 2, 72, 76, 80, 82 

42 U.S.C. § 7491(g)(6)............................................................................................... 6 

42 U.S.C. § 7492 ........................................................................................................ 6 

42 U.S.C. § 7503 ...................................................................................................... 77 

42 U.S.C. § 7602(z) ................................................................................................. 63 

42 U.S.C. § 7607 ........................................................................................................ 1 

42 U.S.C. § 7607(b)(1)............................................................................................. 20 

42 U.S.C. § 7607(d)(7)(B) ....................................................................................... 45 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 10 of 132(19 of 141)
x 

42 U.S.C. § 7661a(b)(5)(B) ..................................................................................... 85 

42 U.S.C. § 7661d(b),(e) .......................................................................................... 85 

CODE OF FEDERAL REGULATIONS 

40 C.F.R. pt. 51, App. W § A.4.c............................................................................. 60 

40 C.F.R. pt. 51, App. Y ............................................................................................ 7 

40 C.F.R. § 51.50 ..................................................................................................... 63 

40 C.F.R. § 51.212(c) ............................................................................................... 84 

40 C.F.R. § 51.300(a) ................................................................................................. 7 

40 C.F.R. § 51.300(b)(2) ............................................................................................ 6 

40 C.F.R. § 51.301 ...................................... 6, 8, 9, 10, 16, 38, 40, 45, 46, 48, 62, 72 

40 C.F.R. § 51.307 ................................................................................................... 11 

40 C.F.R. § 51.308 .................................................................................................... 7 

40 C.F.R. § 51.308(d) .............................................................................................. 96 

40 C.F.R. § 51.308(d)(1) ................................................................................ 7, 10, 86 

40 C.F.R. § 51.308(d)(1)(i) ................................................................................ 10, 86 

40 C.F.R. § 51.308(d)(1)(i)(A) ................................................................................ 87 

40 C.F.R. § 51.308(d)(1)(i)(B) ............................................................................. 2, 10 

40 C.F.R. § 51.308(d)(1)(ii) ................................................................... 11, 36, 87, 92 

40 C.F.R. § 51.308(d)(1)(iii) .................................................................................... 11 

40 C.F.R. § 51.308(d)(2) .......................................................................................... 86 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 11 of 132(20 of 141)
xi 

40 C.F.R. § 51.308(e) ....................................................................................... 7, 8, 74 

40 C.F.R. § 51.308(e)(1) .......................................................................................... 36 

40 C.F.R. § 51.308(e)(1)(ii) ............................................................... 9, 17, 50, 69, 72 

40 C.F.R. § 51.308(e)(1)(ii)(A) ............................................................. 72, 76, 80, 82 

40 C.F.R. § 51.308(e)(1)(ii)(B) .................................................................................. 7 

40 C.F.R. § 51.308(e)(1)(ii)(C) .......................................................................... 61, 69 

40 C.F.R. § 51.308(e)(1)(iv)-(v) ........................................................................ 74, 84 

40 C.F.R. § 51.308(f) ............................................................................................... 86 

FEDERAL REGISTER

62 Fed. Reg. 41,138 (July 31, 1997) ........................................................................ 10 

64 Fed. Reg. 35,714 (July 1, 1999) ...................................................................... 6, 69 

70 Fed. Reg. 39,104 (July 6, 2005) ...................................................................passim

74 Fed. Reg. 2392 (Jan. 15, 2009) ........................................................................... 12 

76 Fed. Reg. 65,653 (Oct. 24, 2011) ........................................................................ 81 

77 Fed. Reg. 72,512 (Dec. 5, 2012) ................................................................... 12, 13 

77 Fed. Reg. 75,704 (Dec. 21, 2012) ................................................................passim

78 Fed. Reg. 29,292 (May 20, 2013) .................. 14, 61-66, 70, 87-89, 93, 94, 97, 98 

78 Fed. Reg. 46,142 (July 30, 2013) .................................................................passim

79 Fed. Reg. 9318 (Feb. 18, 2014) .................................................................... 14, 71 

LEGISLATIVE MATERIALS

123 Cong. Rec. H 27,070 (daily ed. Aug. 4, 1977) ................................................. 28 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 12 of 132(21 of 141)
xii 

GLOSSARY

2011 SIP Arizona State Implementation Plan: Regional Haze Under 

Section 308 of the Federal Regional Haze Rule 

 

2013 Supplement Arizona State Implementation Plan Revision: Regional 

Haze Under Section 308 of the Federal Regional Haze Rule 

Act Clean Air Act 

ADEC Alaska Department of Environmental Conservation v. EPA, 

540 U.S. 461 (2004) 

Agency Respondent United States Environmental Protection 

Agency 

Arizona Petitioner State of Arizona 

Arizona Regional 

Haze SIP 

The 2011 SIP combined with the 2013 Supplement 

Arizona TSD Arizona BART Analysis and Determination Technical 

Support Document 

Association Petitioner American Mining Association 

Association Br. Brief of Petitioner Arizona Mining Association, ECF No. 

8948493 

BACT Best available control technology 

BART Best available retrofit technology 

CAA Clean Air Act 

EPA Respondent United States Environmental Protection 

Agency 

FLM Federal Land Manager 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 13 of 132(22 of 141)
xiii 

FIP Federal Implementation Plan 

NOX Nitrogen oxide 

NSPS New Source Performance Standard 

Phoenix Cement Petitioner Phoenix Cement Company 

Phoenix Cement Br. Petitioner Phoenix Cement Company’s Opening Brief, ECF 

No. 8947898 

PSD Prevention of Significant Deterioration 

Rule Approval and Disapproval of Air Quality State 

Implementation Plans; Arizona; Regional Haze and 

Interstate Transport Requirements; Rules, 78 Fed. Reg. 

46,142 (July 30, 2013) 

SIP State Implementation Plan 

SO2 Sulfur dioxide 

State Petitioner State of Arizona 

State Br. Petitioner State of Arizona’s Opening Brief, ECF No. 

8940288 

Sundt 4 Tucson Electric Power Company’s Sundt Generating 

Station Unit 4 

Sundt Memo November 21, 2012 Memorandum to Docket re TEP Sundt 

Unit 4 – BART Eligibility 

Tucson Power Amicus Curiae Tucson Electric Power Company 

Tucson Power Br. Brief of Amicus Curiae Tucson Electric Power Co. in 

Support of Petitioner State of Arizona, ECF No. 8948740. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 14 of 132(23 of 141)
xiv 

WRAP Western Regional Air Partnership 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 15 of 132(24 of 141)
JURISDICTION

 Respondent United States Environmental Protection Agency (“EPA” or 

“Agency”) concurs that, pursuant to 42 U.S.C. § 7607, the Court has subject matter 

jurisdiction over challenges to the EPA final action entitled Approval and 

Disapproval of Air Quality State Implementation Plans; Arizona; Regional Haze 

and Interstate Transport Requirements; Rules, 78 Fed. Reg. 46,142 (July 30, 2013) 

(“Rule” or “Phase 2 Rule”). Petitioners have, however, waived objections that 

were not previously raised in comments.1

 See infra at 44, 48, 81. 

ISSUES PRESENTED

 Section 110 of the Clean Air Act (“Act” or “CAA”) provides in pertinent 

part that State Implementation Plans (“SIPs”) must be submitted to EPA for 

approval, and that EPA shall approve SIPs only if they “meet[] all of the applicable 

requirements” of the Act. 42 U.S.C. § 7410(k)(3). Section 169A of the Act 

requires EPA to ensure that SIPs include provisions that protect visibility. 

Specifically, SIPs must, inter alia, include “such emission limits, schedules of 

compliance, and other measures as may be necessary to make reasonable progress” 

 

1

 EPA’s consolidated brief responds to the following briefs: Petitioner State of 

Arizona’s Opening Brief, ECF No. 8940288 (“State Br.”); Brief of Petitioner 

Arizona Mining Association, ECF No. 8948493 (“Association Br.”); Petitioner 

Phoenix Cement Company’s Opening Brief, ECF No. 8947898 (“Phoenix Cement 

Br.”); Brief of Amicus Curiae Tucson Electric Power Company in Support of 

Petitioner State of Arizona, ECF No. 8948740 (“Tucson Power Br.”). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 16 of 132(25 of 141)
2 

toward meeting national visibility goals. 42 U.S.C. § 7491(b)(2). Such measures 

include, but are not limited to, the requirement that certain sources install the “best 

available retrofit technology,” or “BART,” as determined based on specific 

statutory factors. 42 U.S.C. § 7491(b)(2)(A), (g)(2). States must make a BART 

determination for all major stationary sources that (1) were constructed or 

reconstructed between 1962 and 1977 and are otherwise “BART-eligible”;2

 and (2) 

are “subject to BART,” because they emit any air pollutant that may reasonably be 

anticipated to cause or contribute to visibility impairment in a particular area. 42 

U.S.C. 7491(b)(2)(A). Under EPA’s implementing Regional Haze Rule, SIPs must 

also include “reasonable progress goals” directed at achieving natural visibility 

conditions by 2064, or in the alternative a demonstration of why progress at that 

rate is not reasonable. See 40 C.F.R. § 51.308(d)(1)(i)(B). 

Given these statutory and regulatory requirements, 

 1. Did EPA have both the authority and the obligation to ensure that a 

SIP submitted by the State of Arizona (“State” or “Arizona”) was consistent with 

 

2

 As discussed in greater detail below, the BART requirement was first added to 

the Act in 1977, and required emission-control retrofitting of major sources that 

were, at the time, still relatively new (i.e., built in the 15-year window prior to 

1977). For major sources built or modified after 1977, the Prevention of 

Significant Deterioration program prospectively required broader application of a 

“best available control technology,” or “BACT,” standard as part of a preconstruction permit process. See 42 U.S.C. § 7475; infra at 8-11. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 17 of 132(26 of 141)
3 

applicable provisions of the Act and its implementing regulations, including those 

pertaining to visibility protection? 

 2. Did EPA reasonably disapprove the State’s determination that Tucson 

Electric Power Company’s (“Tucson Power’s”) Sundt Generating Station Unit 4 

(“Sundt 4”) is not BART-eligible, where (a) Sundt 4 is BART-eligible under the 

plain language of the Act and the Regional Haze Rule, and (b) Sundt 4 had not 

previously undergone any visibility-protection review? 

 3. Did EPA reasonably disapprove the State’s determination that the 

Chemical Lime Nelson Plant (“Nelson Lime Plant”) does not cause or contribute to 

visibility impairment and therefore is not subject to BART, where that 

determination was (a) based on an analysis that was inconsistent with the State’s 

chosen approach to subject-to-BART determinations, and (b) not supported by the 

visibility modeling submitted by the State? 

 4. Did EPA reasonably disapprove the State’s determination that the 

ASARCO Hayden Smelter (“Hayden Smelter”) and Freeport-McMoRan Inc. 

Miami Smelter (“Miami Smelter”) are not subject to BART for nitrogen oxide 

(“NOX”) where (a) the State failed to demonstrate that either smelter’s NOX

emissions are low enough to qualify for a regulatory de minimis exemption, and (b) 

both smelters emit pollutants that cause or contribute to visibility impairment? 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 18 of 132(27 of 141)
4 

 5. Did EPA reasonably disapprove the State’s determination that existing 

controls at the Hayden and Miami smelters constitute BART for sulfur dioxide 

(“SO2”), where the State made that determination in reliance on a forty-year-old 

emission standard without fully considering subsequent developments in emission 

control? 

 6. Did EPA reasonably disapprove the State’s progress goals where the 

State failed to conduct the statutorily-required analysis of sources that the State 

identified as causing or contributing to visibility impairment? 

STATUTES AND REGULATIONS

 Except for the regulations included in the Addendum bound with this brief, 

all applicable statutes and regulations are in the Addenda bound with Petitioner 

Arizona Mining Association’s (“Association’s”) opening brief. 

STATEMENT OF THE CASE

 In 2011, Arizona submitted a SIP to EPA under the visibility protection 

provisions of the Act. Because the SIP failed to ensure that certain protected areas 

in Arizona, such as the Grand Canyon National Park, will make reasonable 

progress towards natural visibility conditions, EPA partially disapproved the SIP. 

Petitioners challenge that partial disapproval. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 19 of 132(28 of 141)
5 

I. STATUTORY AND REGULATORY BACKGROUND. 

A. Clean Air Act Overview. 

The Act controls air pollution through a system of shared federal and state 

responsibility. See Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990). 

EPA establishes national ambient standards that protect air quality, and States 

implement those standards through SIPs. States must submit SIPs and SIP 

revisions to EPA for approval, and EPA is required to review each submission to 

determine if it “meets all of the applicable requirements of [the Act],” 42 U.S.C. 

§ 7410(k)(3), including applicable requirements related to visibility protection. 

See id. § 7410(a)(2)(J). If EPA finds that a State has failed to submit a required 

SIP or that a State’s SIP is incomplete, or if EPA disapproves a SIP in whole or in 

part, the Act requires EPA to prepare a Federal Implementation Plan (“FIP”) to 

take the place of, or fill the gaps in, the State’s SIP. Id. § 7410(c)(1). EPA must 

do so within two years of making such a finding or issuing such a disapproval 

unless the State corrects the deficiency and EPA approves the revised SIP before it 

promulgates a final FIP. Id. 

B. Visibility Protection Under the Act. 

Congress enacted Section 169A of the Act, 42 U.S.C. § 7491, in 1977 “[i]n 

response to a growing awareness that visibility was rapidly deteriorating in many 

places . . . set aside for special protection in their natural states . . . .” Chevron 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 20 of 132(29 of 141)
6 

U.S.A., Inc. v. EPA, 658 F.2d 271, 272 (5th Cir. 1981). In enacting Section 169A, 

Congress declared as a national goal “the prevention of any future, and the 

remedying of any existing, impairment of visibility in mandatory class I Federal 

areas which impairment results from man-made air pollution.” 42 U.S.C. 

§ 7491(a)(1).3

 Congress directed EPA to adopt regulations requiring SIPs to 

include “such emission limits, schedules of compliance, and other measures as may 

be necessary to make reasonable progress toward meeting the national [visibility] 

goal.” Id. § 7491(b)(2). These measures include, but are not limited to, a 

requirement that certain existing sources install BART to control visibilityimpairing emissions. Id. § 7491(b)(2)(A)-(B). 

In the 1990 Amendments to the Act, Congress added Section 169B, 42 

U.S.C. § 7492, to focus attention on regional haze – that is, visibility impairment 

caused by emissions from multiple sources and activities located across a broad 

geographic area. See 40 C.F.R. § 51.301. Pursuant to Congress’ direction, EPA 

promulgated the Regional Haze Rule in 1999. 64 Fed. Reg. 35,714 (July 1, 1999). 

The Regional Haze Rule is applicable to Arizona, 40 C.F.R. § 51.300(b)(2), and 

requires “States to develop programs to assure reasonable progress toward meeting 

 

3

 “Federal class I areas” include certain national wilderness areas, national 

memorial parks, and national parks. 42 U.S.C. § 7472. “Impairment of visibility” 

means “reduction in visual range and atmospheric discoloration.” Id. § 7491(g)(6). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 21 of 132(30 of 141)
7 

the national goal of preventing any future, and remedying any existing, impairment 

of visibility in mandatory Class I Federal areas which impairment results from 

manmade air pollution . . . .” Id. § 51.300(a). EPA revised the Regional Haze 

Rule in 2005 and at the same time issued the BART Guidelines (or Guidelines) 

through notice and comment rulemaking to assist States in determining which 

sources are subject to BART and how to determine emission limits representing 

BART for each such source. See 70 Fed. Reg. 39,104, 39,156-72 (July 6, 2005).4 

The requirements of the Guidelines are mandatory for fossil-fuel fired power plants 

with a total generating capacity over 750 megawatts, and provide persuasive 

guidance for BART determinations for all other sources. 40 C.F.R. 

§ 51.308(e)(1)(ii)(B); see also 70 Fed. Reg. at 39,108 (encouraging states to follow 

Guidelines for all source categories). 

40 C.F.R. § 51.308 (“Section 308”) contains the regional haze provisions 

that must be implemented through SIPs. Among other things, each regional haze 

SIP must include BART requirements and associated compliance schedules for 

certain sources, as well as “reasonable progress goals” directed at achieving natural 

visibility conditions. Id. § 51.308(d)(1), (e). 

 

4

 The BART Guidelines are codified at 40 C.F.R. pt. 51, App. Y. Because the 

pagination of the Federal Register makes it easier to locate specific regulatory text, 

citations to the Guidelines herein are to the Federal Register notice. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 22 of 132(31 of 141)
8 

1. BART. 

Consistent with Congress’ directive, the Regional Haze Rule requires each 

State to submit a SIP “containing emission limitations representing BART and 

schedules for compliance with BART for each BART-eligible source that may 

reasonably be anticipated to cause or contribute to any impairment of visibility in 

any mandatory Class I Federal area.” 40 C.F.R. § 51.308(e); see also 42 U.S.C. 

§ 7491(b)(2)(A). BART is defined as “an emission limitation based on the degree 

of reduction achievable through the application of the best system of continuous 

emission reduction for each pollutant which is emitted by an existing stationary 

facility.” 40 C.F.R. § 51.301. 

States have the initial responsibility of determining BART emission limits. 

42 U.S.C. § 7491(b)(2)(A) (major sources must install BART “as determined by 

the State”); see also Am. Corn Growers Ass’n v. EPA, 291 F.3d 1, 8 (D.C. Cir. 

2002) (“Congress intended the states to decide which sources impair visibility and 

what BART controls should apply to those sources.”). However, if EPA 

determines that a State’s BART determination does not meet the requirements of 

the Act or the Regional Haze Rule, EPA must disapprove the SIP. 42 U.S.C. 

§ 7410(a)(2)(J), (k)(3); see also Oklahoma v. EPA, 723 F.3d 1201, 1207-08 (10th 

Cir. 2013) (Act “mandates that EPA must ensure SIPs comply with the statute,” 

including visibility provisions). In making this determination, EPA may consider 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 23 of 132(32 of 141)
9 

whether State determinations are “‘reasonably moored to the Act’s provisions’” 

and whether they are “based on ‘reasoned analysis.’” North Dakota v. EPA, 730 

F.3d 750, 761 (8th Cir. 2013) (citing Alaska Dep’t of Envtl. Conservation v. EPA, 

540 U.S. 461, 485, 490 (2004) (“ADEC”)). 

The BART process involves three steps: (a) determining which stationary 

sources meet the regulatory definition of “BART-eligible source,” see 40 C.F.R. 

§ 51.301; (b) determining which BART-eligible sources “emit[] any air pollutant 

which may reasonably be anticipated to cause or contribute to any impairment of 

visibility” in a Class I area, making those sources “subject to BART,” id.

§ 51.308(e)(1)(ii); and (c) making a “BART determination” to identify the 

appropriate type and level of control for reducing emissions from sources that are 

subject to BART. A BART determination is, in turn, based on five statutory 

factors: (1) the cost of compliance; (2) energy and nonair quality environmental 

impacts of compliance; (3) existing pollution control technology in use at the 

source; (4) the remaining useful life of the source; and (5) the degree of visibility 

improvement reasonably anticipated to result from the use of controls. 70 Fed. 

Reg. at 39,106; 42 U.S.C. § 7491(g)(1). Petitioners raise issues under each of 

these three steps in the BART process, which are discussed in greater detail in the 

argument below. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 24 of 132(33 of 141)
10 

 2. Reasonable Progress. 

One of the core requirements for a regional haze SIP is the establishment of 

“goals (expressed in deciviews[5

]) that provide for reasonable progress towards 

achieving natural visibility conditions (“reasonable progress goals”)” for each 

mandatory Class I Federal area within a State. 40 C.F.R. § 51.308(d)(1). 

Reasonable progress goals “must 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.” Id. To establish these 

goals, states must consider the following factors and demonstrate how they were 

considered in selecting the goal: (1) costs of compliance; (2) time necessary for 

compliance; (3) energy and non-air quality environmental impacts of compliance; 

and (4) the remaining useful life of any potentially affected sources. Id.

§ 51.308(d)(1)(i); see also 42 U.S.C. § 7491(g)(1). 

States must also “[a]nalyze and determine the rate of progress needed to 

attain natural visibility conditions by the year 2064.” 40 C.F.R. 

§ 51.308(d)(1)(i)(B). To calculate this rate of progress (known as the “uniform 

rate of progress,” or the “glide path,”) States must “compare baseline visibility 

 

5

 A deciview (“dv”) is a “measure of visibility impairment.” 40 C.F.R. § 51.301. 

A value of zero deciviews represents pristine conditions, and values increase as 

visibility degrades. A 1.0 deciview degradation in visibility is perceptible to the 

average person. 62 Fed. Reg. 41,138, 41,145 (July 31, 1997). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 25 of 132(34 of 141)
11 

conditions to natural visibility conditions in the mandatory Federal Class I area,” 

and determine the rate of improvement required to move from one to the other by 

2064. Id.; see also 70 Fed. Reg. at 39,143. If the State’s progress goals fall short 

of the glide path, the State must demonstrate – using the four factors set out above 

– why the proposed rate of improvement is reasonable, and why achieving the 

glide path is unreasonable. 40 C.F.R. § 51.308(d)(1)(ii). The Regional Haze Rule 

requires EPA to review and evaluate the demonstrations developed by the State 

when determining whether the State’s goals provide for reasonable progress. Id.

§ 51.308(d)(1)(iii). 

C. Prevention of Significant Deterioration. 

The Prevention of Significant Deterioration (“PSD”) program is designed to 

protect air quality in relatively pristine areas. See 42 U.S.C. §§ 7470(1), 7471. In 

areas in which the PSD program applies, a party may not construct or modify a 

“major emitting facility on which construction is commenced after August 7, 

1977” without obtaining a pre-construction permit that, inter alia, requires use of 

the “best available control technology,” or “BACT,” to control certain pollutant 

emissions. Id. § 7475(a)(1), (4). The PSD permitting process also considers 

adverse visibility impacts on federal Class I areas. Id. § 7475(a)(1), (5), (d)(2)(B); 

40 C.F.R. § 51.307. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 26 of 132(35 of 141)
12 

II. STATEMENT OF FACTS. 

 This action arises against the background of a long and complicated history 

of regional haze SIP submissions by Arizona, only the most relevant aspects of 

which are discussed here. In December 2008, Arizona submitted a partial regional 

haze SIP to EPA, acknowledging that its submission did not address certain 

fundamental regulatory requirements. See Letter of December 24, 2008 at 1, JA 

XX. Accordingly, on January 15, 2009, EPA found that Arizona had failed to 

submit a comprehensive regional haze SIP. See 74 Fed. Reg. 2392, 2393 (Jan. 15, 

2009). This finding triggered an obligation for EPA to promulgate a FIP within 

two years, unless the State first submitted and EPA approved a regional haze SIP. 

See 42 U.S.C. § 7410(c); 74 Fed. Reg. at 2393-94. 

 When EPA failed to either approve a SIP or promulgate a FIP by January 

2011, the Agency was sued by a group of conservation organizations. See 77 Fed. 

Reg. 72,512, 72,569 (Dec. 5, 2012). EPA settled that lawsuit, entering into a 

Consent Decree establishing new deadlines by which EPA was required to either 

approve a SIP for the State or promulgate a FIP to meet the requirements of the 

Regional Haze Rule.6

 Id. Specifically, the Consent Decree (as later amended) 

 

6

See Nat’l Parks Conservation Ass’n v. EPA, No. 11-CV-01548 (D.D.C., filed 

Aug. 29, 2011), ECF No. 21 (partial Consent Decree); Minute Order of November 

13, 2012 (amending deadlines); Minute Order of February 15, 2013 (amending 

 (footnote con’t) 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 27 of 132(36 of 141)
13 

required that, absent an approved SIP, EPA would take final action to promulgate a 

FIP containing BART determinations for emission units at three power plants by 

December 8, 2012 (the “Phase 1 Rule”), and would take final action on the 

remainder of Arizona’s regional haze SIP by July 15, 2013 (the “Phase 2 Rule”). 

The Consent Decree also requires EPA to promulgate a FIP to fill any gaps left by 

the Phase 2 disapprovals by June 27, 2014.

On February 28, 2011, Arizona submitted a regional haze SIP to EPA. See

generally Arizona State Implementation Plan: Regional Haze Under Section 308 of 

the Federal Regional Haze Rule (“2011 SIP”), JA XX-XX. Consistent with the 

deadlines established in the Consent Decree, on December 5, 2012, EPA issued the 

Phase 1 Rule, approving in part and disapproving in part Arizona’s BART 

determinations at the three power plants and promulgating a partial FIP to fill the 

gaps left by the partial disapproval. 77 Fed. Reg. at 72,512. The Phase 1 Rule is 

before the Court in Arizona v. EPA, No. 13-70366 (and consolidated cases) (9th 

Cir., filed Jan. 31, 2013). 

 

deadlines); Order of September 6, 2013 (amending deadlines); Stipulation of 

November 14, 2013 (amending deadlines). The District Court entered the Consent 

Decree over the State’s objections (as an intervenor), and the State appealed. See

Nat’l Parks Conservation Ass’n v. EPA, No. 12-5211 (D.C. Cir., filed June 29, 

2012). The D.C. Circuit dismissed the State’s claim as unripe. ECF No. 1469815 

(Dec. 11, 2013). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 28 of 132(37 of 141)
14 

 On December 21, 2012, EPA proposed to approve in part and disapprove in 

part the remainder of the 2011 SIP. 77 Fed. Reg. 75,704 (Dec. 21, 2012). On May 

3, 2013, Arizona submitted a supplement to the 2011 SIP. See generally Arizona 

State Implementation Plan Revision: Regional Haze Under Section 308 of the 

Federal Regional Haze Rule, JA XX-XX (“2013 Supplement;” collectively the 

2011 SIP and the 2013 Supplement are referred to as the “Arizona Regional Haze 

SIP”). The 2013 Supplement addressed some of the deficiencies identified in the 

December 21 proposal. On May 20, 2013, EPA proposed to approve in part and 

disapprove in part the 2013 Supplement. 78 Fed. Reg 29,292 (May 20, 2013). 

On July 30, 2013, EPA issued the final Phase 2 Rule, partially approving 

and partially disapproving the Arizona Regional Haze SIP. 78 Fed. Reg. at 

46,142.7

 Specific provisions of the Phase 2 Rule are discussed in greater detail in 

the argument below. In general, however, while EPA approved many elements of 

the Arizona Regional Haze SIP, the Agency also determined that some elements 

did not meet applicable statutory and regulatory requirements and therefore 

disapproved those elements. As is relevant here, EPA disapproved Arizona's 

determinations (1) that Sundt 4 is not BART-eligible; (2) that the Nelson Lime 

 

7

 EPA later proposed a FIP to fill the regulatory gaps left by this partial 

disapproval. See 79 Fed. Reg. 9318 (Feb. 18, 2014). EPA has not yet taken final 

action on the proposed FIP. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 29 of 132(38 of 141)
15 

Plant is not subject to BART; (3) that the Hayden and Miami smelters (collectively 

referred to as the “copper smelters”) are not required to make BART 

determinations for NOX; and (4) that the existing controls at the copper smelters 

constitute BART for SO2. 78 Fed. Reg. at 46,171. EPA also disapproved the 

State’s “reasonable progress goals” for all of Arizona's Class I areas. Id. 

SUMMARY OF ARGUMENT

 The Court’s review of EPA’s partial disapproval of the Arizona Regional 

Haze SIP is governed by a familiar standard: Petitioners must demonstrate that 

EPA’s actions were arbitrary, capricious, an abuse of discretion, or otherwise 

contrary to law. Petitioners cannot meet this standard, and the petitions for review 

should therefore be denied. 

 There is no merit to Petitioners’ contention that EPA lacks authority to 

meaningfully review a regional haze SIP. As two other Circuit courts have 

recently held, EPA’s authority – and, indeed, obligation – to review all SIPs for 

conformance with applicable laws and regulations extends equally to the review of 

regional haze SIPs. See Oklahoma, 723 F.3d at 1204; North Dakota, 730 F.3d at 

756-57. In conducting this review, EPA appropriately considers whether a State 

has supported its determinations with adequate analysis and whether those 

determinations are consistent with the Act, the Regional Haze Rule, and (where 

applicable) the BART Guidelines. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 30 of 132(39 of 141)
16 

 Under the Act and the Regional Haze Rule, a regional haze SIP must (1) 

identify sources that are BART-eligible, (2) identify which BART-eligible sources 

cause or contribute to visibility impairment and thus are subject to BART; and (3) 

make a BART determination for all such sources (although that determination need 

not necessarily result in the imposition of additional emission controls). A regional 

haze SIP must also include reasonable progress goals designed to achieve natural 

visibility conditions by 2064. While EPA approved the bulk of the Arizona 

Regional Haze SIP, EPA disapproved some specific elements of that SIP at each of 

the three BART stages, and disapproved the State’s progress goals. Those 

disapprovals were consistent with applicable law and are fully supported by the 

administrative record. 

BART-eligible: As discussed above, the first step of the BART process is 

to determine whether a source meets the regulatory definition of “BART-eligible.” 

40 C.F.R. § 51.301. Tucson Power’s Sundt 4 generating station is BART-eligible 

under the plain language of the Act and the Regional Haze rule. The BART 

Guidelines provide an exemption for otherwise BART-eligible sources 

reconstructed after 1977, on the assumption that their visibility impacts would be 

considered as part of statutorily-required new source permitting procedures for 

reconstructed sources. Sundt 4 was reconstructed after 1977, but – due to a unique 

statutory exemption – did not go through new source permitting; thus, its visibility 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 31 of 132(40 of 141)
17 

impacts were not considered at that time. The State’s determination that Sundt 4 

was not BART-eligible would continue to leave Sundt 4’s visibility impacts 

unexamined. EPA reasonably applied the plain language of the Act and the 

Regional Haze Rule, in light of Congress’ expressed concern with visibility 

protection, to avoid this anomalous result by disapproving the State’s 

determination that Sundt 4 was not BART-eligible. 

Subject to BART: The second step of the BART process is determining 

whether a BART-eligible source is “subject to BART” because it emits a pollutant 

which may reasonably be anticipated to cause or contribute to any impairment of 

visibility in a Class I area. 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. 

§ 51.308(e)(1)(ii). The State determined that the Nelson Lime Plant was not 

subject to BART. In doing so, the State inconsistently applied its own chosen 

approach (which is the approach recommended by expert federal agencies) to 

making subject-to-BART determinations. The State also employed certain 

modeling equations at the Nelson Lime Plant that were not used in making subjectto-BART determinations at any other facility. Finally, supplemental modeling 

submitted by the Nelson Lime Plant’s owner was not adequately documented. 

EPA was presented with model results, but not with the underlying data and 

assumptions it needed to fully evaluate those results. EPA therefore reasonably 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 32 of 132(41 of 141)
18 

disapproved the State’s determination that the Nelson Lime Plant was not subject 

to BART. 

 The State also determined that the Hayden and Miami smelters were not 

subject to BART for NOX emissions. This determination was originally based on 

the State’s conclusion that both smelters’ NOX emissions were low enough to 

qualify for a regulatory de minimis exemption – a conclusion that is readily 

rebutted by the administrative record. Following EPA’s proposed disapproval of 

this determination, commenters suggested a new theory, arguing that the smelters’ 

NOX emissions, when considered in isolation, do not cause or contribute to 

visibility impairment. EPA appropriately rejected this approach as inconsistent 

with the broad language of the Act and the Regional Haze Rule, which require 

BART determinations for all pollutants for facilities that emit “any air pollutant” 

which may reasonably be anticipated to cause or contribute to visibility 

impairment. Because both the Hayden and the Miami smelters emit SO2 in 

amounts that cause or contribute to visibility impairment, EPA reasonably 

determined that both facilities are subject to BART. 

BART determination: The State made a BART determination for SO2 at 

the Hayden and Miami smelters, but determined that no additional emission 

controls were warranted. The State reached this conclusion without conducting the 

statutorily-required five-factor analysis, opting instead to rely on a 1974 emission 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 33 of 132(42 of 141)
19 

standard for primary copper smelters as representing the best emission control 

available. In doing so, the State failed to fully consider emission control 

developments in the intervening forty years. Because the State’s BART 

determination was not supported by the required analysis, EPA reasonably 

disapproved that determination. 

Reasonable progress goals: The Act and the Regional Haze Rule require a 

State to conduct a four-factor analysis to establish reasonable progress goals. The 

State failed to conduct such an analysis for several of the sources and source 

categories that the State itself identified as contributing to visibility impairment, 

primarily because the State found such analysis to be too resource-intensive. The 

one four-factor analysis the State did submit addressed only a single source, and 

was significantly flawed. Because the State did not provide the required analysis 

to support and justify its progress goals, EPA reasonably disapproved those goals. 

 In sum, the Rule is grounded in the requirements of the Act and the Regional 

Haze Rule, amply explained in and supported by the record, and constitutes a 

reasonable exercise of the Agency’s Congressionally-assigned responsibility to 

ensure that Arizona’s regional haze program complies with governing law. The 

petitions for review should therefore be denied. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 34 of 132(43 of 141)
20 

ARGUMENT

I. EPA’S PARTIAL DISAPPROVAL OF THE ARIZONA REGIONAL 

 HAZE SIP MUST BE UPHELD UNLESS THAT DISAPPROVAL 

 WAS ARBITRARY, CAPRICIOUS, OR OTHERWISE CONTRARY 

 TO LAW. 

The Court has jurisdiction over this matter pursuant to 42 U.S.C. 

§ 7607(b)(1), which provides for judicial review of certain EPA final actions. See, 

e.g., State Br. at 1; Association Br. at 1. The Court is thus reviewing EPA’s action 

in partially disapproving a SIP – not, as Petitioners suggest, reviewing the SIP 

itself. See State Br. at 18-22 (asserting that Court must defer to State’s 

judgments); see also Association Br. at 7, 27. Because the Court is not reviewing 

the SIP, there is no basis on which the Court could defer to the State’s judgment as 

reflected in that SIP.8

 

Petitioners’ efforts to complicate the issue notwithstanding, the standard by 

which a Court reviews EPA’s disapproval of a SIP is straightforward and wellestablished. The Act does not specify a standard of judicial review for SIP 

disapprovals. The Supreme Court and this Circuit have held that in those 

circumstances, courts “apply the familiar default standard of the Administrative 

 

8

 The Court may, of course, consider the scope of EPA’s authority to review and 

approve or disapprove SIPs in determining whether EPA’s action was arbitrary or 

capricious. As discussed infra in Section II, however, Petitioners have failed to 

demonstrate that their overly-narrow conception of EPA’s authority is accurate. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 35 of 132(44 of 141)
21 

Procedure Act . . . and ask whether the agency’s action was ‘arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with law.’” ADEC, 540 

U.S. at 496-97 (citation omitted); see also Natural Res. Def. Council v. EPA, 638 

F.3d 1183, 1190 (9th Cir. 2011) (citing ADEC); Mont. Sulphur & Chem. Co. v. 

EPA, 666 F.3d 1174, 1187-88 (9th Cir. 2012) (reviewing disapproval of SIP under 

arbitrary-or-capricious standard). 

The arbitrary-or-capricious standard is highly deferential, presuming the 

validity of agency actions and upholding them if they satisfy minimum standards 

of rationality. Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir, 1976) (en banc); Kern 

Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006). Although a 

court must conduct a “searching and careful” inquiry, the standard of review 

ultimately “is a narrow one.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., 

Inc., 419 U.S. 281, 285-86 (1974); see also Nat’l Wildlife Fed’n v. U.S. Army 

Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir. 2004). The reviewing court must 

assure itself that the agency considered the relevant factors in making the decision, 

but cannot substitute its judgment for that of the agency. Nat’l Wildlife Fed’n, 384 

F.3d at 1170. The court thus will not set aside agency action on account of a “less 

than ideal” explanation as long as “the agency’s path may reasonably be 

discerned.” ADEC, 540 U.S. at 497 (citation omitted). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 36 of 132(45 of 141)
22 

EPA’s factual findings are likewise entitled to substantial deference, and 

should be upheld as long as they are supported by the administrative record, even if 

there are alternative findings that could also be supported by that record. See

Arkansas v. Oklahoma, 503 U.S. 91, 110-13 (1992). Indeed, a court must “‘be at 

its most deferential’” when reviewing EPA’s exercise of its technical and scientific 

expertise. See Nat’l Wildlife Fed’n, 384 F.3d at 1177-78 (citation omitted). As 

long as EPA has “articulated a rational connection between the facts found and the 

conclusions made,” EPA’s decision must be upheld. Pac. Coast Fed’n of 

Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir. 

2005) (citation omitted). 

Questions of statutory interpretation are governed by the two-step test set 

forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 

837, 842-45 (1984). In the first step, the reviewing court determines whether 

Congress spoke to the precise question at issue. If so, the inquiry is at an end. If 

the statute is silent or ambiguous on the relevant point, the court must determine 

whether the agency’s interpretation is based on a permissible construction of the 

statute, and if so it defers to that interpretation. Id. EPA’s interpretation of its own 

regulations is, moreover, controlling unless that interpretation is “‘plainly 

erroneous or inconsistent with the regulation.’” Auer v. Robbins, 519 U.S. 452, 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 37 of 132(46 of 141)
23 

461 (1997) (citation omitted); see also Hells Canyon Alliance v. U. S. Forest Serv., 

227 F.3d 1170, 1176 (9th Cir. 2000). 

Petitioner Phoenix Cement Company (“Phoenix Cement”) and the 

Association attempt to eliminate Auer deference entirely, asserting that Auer

should be overruled.9

 Phoenix Cement Br. at 24-25; Association Br. at 48 n.16. 

Auer, however, remains good law, invoked by the Supreme Court as recently as 

last year. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337-38 (2013) 

(according Auer deference to EPA’s interpretation of its regulations); see also Go 

v. Holder, 744 F.3d 604, 610-11 (9th Cir. 2014) (discussing Auer deference in 9th

Circuit). Unless and until the Supreme Court holds otherwise, Auer deference 

applies. See Hart v. Massanari, 266 F.3d 1155 , 1170-71 (9th Cir. 2001) (binding 

authority must be followed until it is overruled by a body competent to do so; 

decision of Supreme Court controls unless Supreme Court itself overrules or 

modifies it). 

Petitioners assert that EPA is not entitled to deference in interpreting 

regulations that re-state statutory language. State Br. at 48; Association Br. at 46 

n.14; Phoenix Cement Br. at 15-16. Petitioners have misstated the law. The 

 

9

 The State does not explicitly press this argument, but makes no mention of Auer

in its discussion of the standard of review. See State Br. at 17; see generally id. at 

17-25. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 38 of 132(47 of 141)
24 

Supreme Court has stated that an agency is not entitled to heightened deference 

under Auer when it interprets regulations that re-state or paraphrase statutory 

language. See Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (agency does not 

acquire “special authority” to interpret its own words when it has elected to 

paraphrase statutory language) (emphasis added). Petitioners cite no authority, 

however, to support their assertion that an agency gets “no deference,” Phoenix 

Cement Br. at 15 (emphasis added), in interpreting such regulations. Rather, the 

deference accorded the agency returns to the Chevron baseline.10 Phoenix Cement 

also argues that deference to an agency’s interpretation is not warranted where that 

interpretation “does not reflect the agency’s fair and considered judgment.” 

Phoenix Cement Br. at 15 (citation omitted). This assertion is unsupported by any 

evidence that the interpretations at issue here do not, in fact, reflect EPA’s 

considered judgment. 

Finally, the State asserts that EPA is entitled to “no deference” because EPA 

allegedly “overstepped [its] bounds.” State Br. at 25. The mere allegation that 

 

10 The Court declined to grant Chevron deference to an agency interpretation of its 

own rule in Gonzales, but it did so because the rule was not promulgated pursuant 

to delegated rulemaking authority. Gonzales, 546 U.S. at 258. The EPA 

regulations applied in this case were, by contrast, promulgated pursuant to an 

express Congressional directive. See 42 U.S.C. § 7491(a)(4) (directing EPA to 

promulgate regulations to assure reasonable progress toward meeting national 

visibility goal); (b) (specifying content of regulations)). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 39 of 132(48 of 141)
25 

EPA overstepped its bounds is not a reason to grant EPA less deference – it is, 

instead, a conclusion that Petitioners are required to prove, based on the evidence 

in the administrative record considered in light of the deference due EPA. For all 

of the reasons discussed in this brief, Petitioners have failed to meet this burden. 

II. EPA’S CONGRESSIONALLY ASSIGNED ROLE IS TO ENSURE 

THAT REGIONAL HAZE SIPs CONFORM TO THE 

REQUIREMENTS OF FEDERAL LAW. 

 EPA is responsible for reviewing SIPs and SIP revisions, including regional 

haze SIPs and SIP revisions, to ensure that they “meet[] all of the applicable 

requirements of [the Act].” 42 U.S.C. § 7410(k)(3); see also id. § 7410(l) (EPA 

shall not approve SIP revision if it would interfere with “any . . . applicable 

requirement of this chapter”); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1093 

(9th Cir. 2007) (before SIP becomes effective, EPA must determine that it meets 

Act’s requirements); Oklahoma, 723 F.3d at 1207 (SIPs must meet provisions of 

Act related to visibility); North Dakota, 730 F.3d at 757 (visibility provisions 

“operate under [the] framework” of EPA approval of SIPs). Petitioners have failed 

to demonstrate that EPA exceeded the scope of its authority under the Act by 

partially disapproving the Arizona Regional Haze SIP. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 40 of 132(49 of 141)
26 

A. EPA Is Authorized and Obligated to Disapprove SIPs That Do 

Not Conform to Applicable Law and Are Not Supported by 

Reasoned Analysis. 

 Petitioners emphasize the Act’s cooperative-federalism structure, asserting 

that EPA improperly usurped the State’s role by disapproving certain elements of 

the Arizona Regional Haze SIP. See, e.g., State Br. at 4-6, 18-19, 21-22; 

Association Br. at 5-6, 10-13, 26-27; Phoenix Cement Br. at 3-4; see also Tucson 

Power Br. at 11-12. There is no dispute that Congress intended States to be the 

primary actors in ensuring air quality, and that States have considerable flexibility 

to craft appropriate SIPs. More specifically, States have the first opportunity to 

determine what constitutes BART and to otherwise address the visibility 

provisions of the Act. See 42 U.S.C. § 7491(b)(2)(A); Am. Corn Growers, 291 

F.3d at 8 (“Congress intended the states to decide which sources impair visibility 

and what BART controls should apply to those sources.”). 11 

 Petitioners’ heavy emphasis on State flexibility nonetheless ignores the 

statutory requirement that regional haze SIPs – like all other SIPs – be reviewed 

under Section 110, and approved only if they “meet[] all of the applicable 

 

11 MacClarence v. EPA, 596 F.3d 1123 (9th Cir. 2010), does not support the 

Association’s claim that the Act’s visibility provisions are the “strongest example” 

of this cooperative-federalism approach. Association Br. at 14. MacClarence was 

discussing the Clean Air Act generally, and says nothing about the visibility 

provisions specifically. See MacClarence, 596 F.3d at 1125. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 41 of 132(50 of 141)
27 

requirements of the [Act].” 42 U.S.C. § 7410(k)(3). As EPA explained in the 

Rule, “nothing in the CAA indicates that EPA’s role [in reviewing SIPs] is less 

important in the context of the regional haze program than under other CAA 

programs.” 78 Fed. Reg. at 46,147; see generally id. at 46,146-48. In North 

Dakota and Oklahoma, the Eighth and Tenth Circuits expressly recognized EPA’s 

critical role in reviewing regional haze SIPs. As the Eighth Circuit concluded: 

Under the [petitioners’] interpretation of § 169A, EPA’s role in 

reviewing a state’s BART determination . . . does not permit EPA to 

examine the rationality or reasonableness of the underlying decision . . 

. . Although the [Act] grants states the primary role of determining 

the appropriate pollution controls within their borders, EPA is left with 

more than the ministerial task of routinely approving SIP submissions

. . . . As did the Supreme Court [in ADEC], we reject the argument 

that EPA is required under § 169A to approve a BART determination 

that is based upon an analysis that is neither reasoned nor moored to 

the CAA’s provisions. 

North Dakota, 730 F.3d at 760-61 (emphasis added); see also Oklahoma, 723 F.3d 

at 1207-08 (agreeing with EPA that the Act provides agency with power to review 

state BART determinations); ADEC, 540 U.S. at 485 (Agency entitled to review 

certain state determinations under Clean Air Act to ensure they are “reasonably 

moored to the Act’s provisions”). 

 The legislative history of Section 169A, see State Br. at 4-6, 22, 38, 

including the colloquy preceding that Section’s adoption, does not suggest 

otherwise. As the court explained in Oklahoma, although the legislative history 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 42 of 132(51 of 141)
28 

reflects “an intent to shift the power to determine BART from the EPA to the 

states,” Congress nonetheless “placed statutory limits on those state decisions.” 

Oklahoma, 723 F.3d at 1209. Thus, “[w]hile the legislative history may evidence 

an intent to prevent the EPA from directly making those BART decisions, it does 

not necessarily evidence an intent to deprive EPA of any authority to ensure 

that these BART decisions comply with the statute.” Id. (italics in original, bold 

emphasis added). Just as in other parts of the Act, “states have the ability to create 

SIPs, but they are subject to EPA review.” Id. (emphasis added). In fact, the 

legislative history expressly acknowledges EPA’s supervisory role. After issuance 

of the Conference Report cited by the State, Congressman Rogers explained that: 

The conferees also rejected a motion to delete EPA’s supervisory role 

under section 110 to assure that the required progress toward [the 

national] goal will be achieved by the revised State plan. If a State 

visibility protection plan is not adequate to assure such progress, then 

the Administrator must disapprove that portion of the SIP and 

promulgate a visibility protection plan under section 110(c). Thus, 

visibility protection in most mandatory federal Class I areas remains a 

national commitment, which is nationally enforceable. 

123 Cong. Rec. H 27,070 (daily ed. Aug. 4, 1977) (statement of Rep. Paul G. 

Rogers). 

 The State fails to distinguish the Eighth and Tenth Circuit’s holdings in 

North Dakota and Oklahoma. See State Br. at 23-25. First, the State argues that 

these decisions turned on the applicability of the BART Guidelines, which are not 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 43 of 132(52 of 141)
29 

binding in this case.12 State Br. at 23-24. With regard to Oklahoma, when the 

phrases quoted by the State are viewed in context, it is apparent that the Tenth 

Circuit’s holding was rooted in its conclusion that EPA has authority to review 

SIPs for conformance with all applicable laws and regulations. The court prefaced 

the discussion cited by the State with this broad point: 

We agree with the EPA that the statute provides the agency with the power 

to review Oklahoma’s BART determination for these four units. The EPA 

may not approve any plan revision “if the revision would interfere with any 

applicable requirement concerning attainment and reasonable further 

progress . . . or any other applicable requirement of this chapter. 42 U.S.C. 

§ 7410(l). And under § 7410(a)(2)(J) SIPs must “meet the applicable 

requirements of . . . part C of this subchapter” – which includes the 

provisions of the CAA related to visibility.

Oklahoma, 723 F.3d at 1207 (emphasis added). It then concluded by stating that 

“because the EPA monitors SIPs for compliance with the statute, it must monitor 

BART determinations for compliance with the guidelines.” Id. at 1210 (emphasis 

added); see also id. at 1208 (“Given that the statute mandates that the EPA must 

ensure that SIPs comply with the statute, we fail to see how the EPA would be 

without the authority to review BART determinations for compliance with the 

 

12 The State also “stands by” its Phase I argument that Oklahoma “did not give full 

scope to ADEC on the proper standard of review.” State Br. at 24 n. 6. EPA 

similarly stands by its response that the State’s claim is based on a mistaken 

interpretation of ADEC. See State of Arizona et al. v. EPA, No. 13-70366 (9th Cir. 

filed Jan. 31, 2013), Brief of Respondent EPA (ECF No. 889957) at 32; infra at 34-

35. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 44 of 132(53 of 141)
30 

guidelines.” (emphasis added)), 1209 (although States have initial responsibility to 

make BART determinations, “that does not differ from other parts of the [Act] – 

states have the ability to create SIPs, but they are subject to EPA review.”). There 

is thus nothing in the text of Oklahoma that supports the State’s claim that the 

Tenth Circuit’s decision turned on the applicability of the BART Guidelines. Nor 

did the Tenth Circuit “distinguish” American Corn Growers based on the 

applicability of the BART Guidelines. State Br. at 24. The Tenth Circuit said only 

that American Corn Growers “does not alter” the conclusion that because EPA 

must ensure SIPs comply with the statute, EPA cannot be without authority to 

review BART determinations for compliance with the Guidelines or other 

applicable law. Oklahoma, 723 F.3d at 1208-09. 

 The State’s effort to distinguish North Dakota is even less persuasive. In 

North Dakota, the Eighth Circuit upheld EPA’s disapproval of a State BART 

determination that was governed by, inter alia, the BART Guidelines. North 

Dakota, 730 F.3d at 761. It also upheld EPA’s disapproval of the state’s 

reasonable progress goals, as to which the Guidelines are not binding. Id. at 766. 

In both cases, the court explicitly recognized EPA’s authority to review regional 

haze SIPs and to disapprove those that are inconsistent with applicable law or 

unsupported by reasoned analysis. See North Dakota, 730 F.3d at 761 (rejecting 

argument that EPA must approve BART determination based on analysis “that is 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 45 of 132(54 of 141)
31 

neither reasoned nor moored to the [Act’s] provisions”); id. at 766 (recognizing 

same principle in upholding EPA’s disapproval of reasonable progress goals). 

Petitioners’ suggestion that the Eighth Circuit’s decision was based on the binding 

nature of the BART Guidelines, see State Br. at 23-24, is thus contradicted by the 

court’s opinion. 

 The State also asserts that its purported acknowledgment that EPA “may 

inquire into the reasonableness of state regional haze SIP determinations” 

distinguishes the State’s argument from the supposedly harder line taken by the 

North Dakota petitioners and, therefore, from the Eighth Circuit’s holding. State 

Br. at 24; see also id. at 18-19, 21. This is a classic distinction without a 

difference, given the State’s apparent position that virtually any State SIP 

determination will qualify as reasonable. The State also ignores the fact that 

approval or disapproval of a SIP (or any element thereof) is not based solely on 

whether a State’s analysis is broadly “reasonable.” As the Eighth Circuit and 

multiple other courts have recognized, EPA must ultimately determine whether a 

SIP conforms to applicable law. See North Dakota, 730 F.3d at 761 (EPA not 

required to approve BART determination based on analysis not moored to Act). 

Simply put, it is necessary for a State to submit a SIP that is supported by reasoned 

analysis, but it is not sufficient – that SIP still must conform to governing law (in 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 46 of 132(55 of 141)
32 

this case, the visibility protection provisions of the Act and the Regional Haze 

Rule). 

 Phoenix Cement’s musing on the meaning of “reasonable,” Phoenix Cement 

Br. at 16-17, similarly ignores the fact that EPA reviews SIPs for conformance to 

statutory and regulatory standards. To be sure, the reasonableness of the State’s 

analysis and conclusions play a significant role in that review. What is and is not 

“reasonable” in this context is, however, determined with reference to the Act and 

the Regional Haze Rule, as informed by EPA’s technical expertise, rather than 

according to generic concepts of reasonableness imported from other areas of the 

law. Scott v. Krammer, 516 Fed. App’x 612 (9th Cir. 2013), Phoenix Cement Br. 

at 16-17, is thus unhelpful. Scott did not involve judicial review of an agency’s 

exercise of technical expertise, nor does it speak to what is or is not “reasonable” 

in the context of the Act or any other complex, detailed, and prescriptive statutory 

and regulatory scheme. 

B. ADEC Confirms EPA’s Authority to Ensure that SIPs Conform 

to the Law And Are Reasonably Supported. 

Petitioners argue that the Supreme Court’s decision in ADEC supports their 

claim that EPA must review regional haze SIPs with an extraordinary degree of 

deference. See State Br. at 19-21; Association Br. at 22, 28, 30-31; Phoenix 

Cement Br. at 16-17. In ADEC, the Court considered EPA’s authority to enforce 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 47 of 132(56 of 141)
33 

the PSD provisions of the Act. ADEC, 540 U.S. at 484. The Act authorizes EPA 

to stop construction of facilities that do not conform to PSD requirements, which 

include the requirement that the facility’s permit include a BACT determination. 

ADEC, 540 U.S. at 484-85. In holding that EPA has the “checking authority” to 

review State BACT determinations, id. at 469, the Court made it clear that this 

review power is meaningful: 

In keeping with the broad oversight role [relevant statutory 

provisions] vest in EPA, the Agency maintains, it may review permits 

to ensure that a State’s BACT determination is reasonably moored to 

the Act’s provisions. . . . We hold, as elaborated below, that the 

Agency has rationally construed the Act’s text and that EPA’s 

construction warrants our respect and approbation. 

ADEC, 540 U.S. at 485; see generally id. at 484-91. Among other things, the 

Court rejected the petitioner’s argument that EPA’s role is limited to ensuring that 

a permit contains some BACT limitation: 

Congress . . . vested EPA with explicit and sweeping authority to 

enforce CAA ‘requirements’ relating to the construction and 

modification of sources under the PSD program, including BACT. 

We fail to see why Congress, having expressly endorsed an expansive 

surveillance role for EPA in two independent CAA provisions, would 

then implicitly preclude the Agency from verifying substantive 

compliance with the BACT provisions and, instead, limit EPA’s 

superintendence to the insubstantial question whether the state 

permitting authority had uttered the key words “BACT.” 

ADEC, 540 U.S. at 490. The Court further explained that although a State retains 

“considerable leeway” to determine BACT, and EPA may not second-guess such 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 48 of 132(57 of 141)
34 

determinations, the Agency may “step in to ensure that the statutory requirements 

are honored.” Id.

Petitioners misread ADEC, asserting without citation that the Court held that 

both EPA and the Court itself were required to “defer to the state’s expertise.” 

State Br. at 20. The Court simply did not say that. In fact, the Court makes it clear 

that the “appropriate deference” due the State, State Br. at 20, is tempered by 

EPA’s authority to ensure that State determinations conform to the law and are 

based on a reasoned analysis. See ADEC, 540 U.S. at 488-91. As the Eighth 

Circuit recently recognized, ADEC thus confirms, rather than undermines, EPA’s 

substantive regional-haze SIP review authority. See North Dakota, 730 F.3d at 761 

(finding Court’s conclusion in ADEC that EPA could examine the substance of a 

BACT determination to be “persuasive in the context of § 169A”). 

Petitioners’ argument that ADEC shifts the burdens of production and 

persuasion to EPA is an even greater departure from the text of the opinion. See

State Br. at 20; Phoenix Cement Br. at 17. The provisions at issue in ADEC

authorized enforcement action by EPA, including issuance of a stop-construction 

order or commencement of a civil action in federal court. See 42 U.S.C. 

§§ 7413(a)(5), 7477. In the passage cited by the State, the Court was addressing 

the concern that EPA might gain a “proof-related tactical advantage” by opting for 

a stop-construction order rather than a civil enforcement action. ADEC, 540 U.S. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 49 of 132(58 of 141)
35 

at 493. The Court did no more than clarify that, in order to eliminate this 

possibility, “in either an EPA-initiated civil action or a challenge to an EPA stopconstruction order filed in state or federal court, the production and persuasion 

burdens remain with EPA . . . .” Id. at 494. In ADEC, EPA was acting in an 

enforcement capacity; thus, it was reasonable to ensure that regardless of which 

route the Agency took, it retained the burden of proof. Here, however, EPA was 

exercising its Congressionally-conferred review authority under Section 110. 

There is nothing in ADEC that suggests that regional haze SIPs should be treated 

differently than any other SIP in this Congressionally-mandated review process.13 

 C. Unsupported Assertions That The SIP Met Applicable 

 Requirements Do Not Satisfy Petitioners’ Burden. 

The State asserts repeatedly that its SIP conformed to applicable laws and 

regulations and contained all required elements. See, e.g., State Br. at 9, 11, 27; 

see also, e.g., Phoenix Cement Br. at 9. It also argues that EPA’s disapproval 

arises from mere “disagree[ment]” with the State’s approach. State Br. at 13; see 

 

13 United States v. Minnkota Power Coop., 831 F. Supp. 2d 1109 (D.N.D. 2011), 

State Br. at 20, is equally unhelpful. In Minnkota, the District Court considered a 

dispute under a consent decree resolving an EPA enforcement action. Minnkota, 

831 F. Supp. 2d at 1112. Critically, the decree itself set forth the standard of 

review. Id. at 1118-19. The court states that the standard established in the decree 

“mirrors” that set forth in ADEC (which, as discussed in the text, also arose in an 

enforcement context), but – contrary to the State’s contention – the court does not 

“apply” or otherwise rely on ADEC in reaching its decision. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 50 of 132(59 of 141)
36 

also Association Br. at 7-8, 22. These conclusory assertions are backed by nothing 

more than citations to the SIP itself, and take no account of EPA’s reasoned 

demonstration that elements of the SIP failed to satisfy the requirements of the Act 

and the Regional Haze Rule and lacked adequate technical support. See generally

infra sections III-VI. 

 Petitioners also argue repeatedly that, in order to disapprove any element of 

the SIP, EPA was required to demonstrate that the SIP violated a specific

requirement of the Act or the Regional Haze Rule. See, e.g., State Br. at 36, 43, 

45, 50; Association Br. at 6-7, 21-22, 30, 36-37. Petitioners seem to envision a 

scheme under which, for example, in order to disapprove the State’s determination 

that the Nelson Lime Plant was not subject to BART (see infra at 52-61), but 

instead would have to be able to point to a regulation explicitly requiring a State to 

consider maximum rather than average visibility impacts. See State Br. at 36; see 

generally id. at 35-44. 

 While it is true that EPA reviews SIPs for conformity with governing law, 

the concept of “conformity” is not as narrow as Petitioners would have it. The 

Regional Haze Rule contemplates that EPA will evaluate the reasonableness of the 

analysis supporting a regional haze SIP, not merely whether a State has checked 

the right regulatory and statutory boxes. See, e.g., 40 C.F.R. § 51.308(d)(1)(iii), 

(e)(1). As the Eighth Circuit held in North Dakota, moreover, EPA may consider 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 51 of 132(60 of 141)
37 

whether a SIP is “‘reasonably moored’” to the Act, and based on a “‘reasoned 

analysis.’” North Dakota, 760 F.3d at 761 (citation omitted). The question thus is 

not whether EPA can identify a four-corners violation of a precisely-worded 

statutory or regulatory provision for everything it disapproves; rather, it is whether 

EPA’s disapproval of certain elements of the Arizona Regional Haze SIP, when 

viewed in light of the deference due both EPA’s legal interpretations and technical 

expertise, is reasonable and supported by the administrative record. 

Petitioners have, in sum, failed to demonstrate that EPA lacked meaningful 

authority to review the Arizona Regional Haze SIP, or that its partial disapproval 

of that SIP should be reviewed any differently than any other SIP disapproval – 

i.e., under the arbitrary-or-capricious standard, with the burden resting on 

Petitioners to demonstrate that the Agency’s action falls short of that standard. As 

discussed in the following sections, Petitioners have not met their burden and the 

petitions for review should therefore be denied. 

III. EPA REASONABLY DISAPPROVED THE STATE’S 

 DETERMINATION THAT SUNDT 4 IS NOT BART-ELIGIBLE. 

 The Regional Haze Rule defines a “BART-eligible source” as “an existing 

stationary facility.” 40 C.F.R. § 51.301. “Existing stationary facility” is, in turn, 

defined to include “any of [certain enumerated categories of] stationary sources, 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 52 of 132(61 of 141)
38 

including any reconstructed source, which was not in operation prior to August 7, 

1962, and was in existence on August 7, 1977.” 40 C.F.R. § 51.301; see also 42 

U.S.C. § 7491(b)(2)(A) (“each major stationary source which is in existence on 

August 7, 1977, but which has not been in operation for more than fifteen years” 

may be required to install BART controls). The BART Guidelines further explain 

that: 

Under a number of CAA programs, an existing source which is 

completely or substantially rebuilt is treated as a new source. Such 

“reconstructed” sources are treated as new sources as of the time of 

the reconstruction. Consistent with this overall approach to 

reconstructions, the definition of BART-eligible facility . . . includes 

consideration of sources that were in operation before August 7, 1962, 

but were reconstructed during the August 7, 1962 to August 7, 1977 

time period. . . . If an emissions unit was reconstructed and began 

actual operation before August 7, 1962, it is not BART-eligible. 

Similarly, any emissions unit for which a reconstruction 

“commenced” after August 7, 1977, is not BART-eligible. 

70 Fed. Reg. at 39,159-60. 

 In sum, a source may be BART-eligible if it (1) began operation after 

August 1962, but before August 1977, or (2) began operation before August 1962, 

but was reconstructed between August 1962 and August 1977. This “accurately 

reflects Congress’ intent that the BART provision apply to sources which had been 

‘grandfathered’ from” requirements (including PSD) applicable only to sources 

constructed or reconstructed after August 1977. 70 Fed. Reg. at 39,111; see also

42 U.S.C. § 7475(a) (PSD applicable to sources “on which construction is 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 53 of 132(62 of 141)
39 

commenced after August 7, 1977”). If, however, a major source that was already 

operating in August 1977 was reconstructed after that point (in which case it is 

subject to PSD review), under the Guidelines it is typically treated as a new source 

and is not considered to be BART-eligible. 

 Sundt 4 was constructed in 1964 and reconstructed in the 1980s, at which 

time it would ordinarily have been subject to PSD review. 14 This review would 

have included consideration of visibility impacts. See supra at 11. The 

reconstruction was, however, undertaken pursuant to a congressional directive that 

also created a PSD exemption. See 77 Fed. Reg. at 75,720; infra at 41. At the time 

that Arizona submitted its Regional Haze SIP, Sundt 4 had therefore undergone 

neither PSD review nor a BART analysis. Based on Sundt 4’s reconstruction, 

however, the State concluded that Sundt 4 is no longer BART-eligible, and thus is 

not subject to any further BART analysis. Arizona BART Analysis and 

Determination Technical Support Document (“Arizona TSD”) at 15-17, JA XXXX; 77 Fed. Reg. at 75,720. 

 

14 In areas in which the PSD program applies, sources must undergo PSD review 

when they are “constructed,” which is defined to include certain “modifications.” 

See 42 U.S.C. §§ 7475(a), 7479(2)(c). There appears to be no dispute that Sundt 

4’s reconstruction was a “modification” that would have undergone PSD review 

were it not for a statutory exemption. See Tucson Power Br. at 17. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 54 of 132(63 of 141)
40 

 EPA disapproved this conclusion, reasoning that (as further detailed below) 

in this unique situation, the Act, the Regional Haze Rule, and the BART 

Guidelines were best read so that Sundt 4 would not escape both PSD review and a 

BART analysis. The question now before the Court is not whether the State may 

somehow be “fault[ed]” for its initial determination that Sundt 4 was not BARTeligible. See State Br. at 28. The question is, instead, whether the State has 

demonstrated that EPA’s disapproval of that determination was arbitrary or 

capricious. For the reasons discussed in the following sections, the State has failed 

to meet this burden. 

A. EPA Reasonably Interpreted the Act, the Regional Haze 

 Rule, and the BART Guidelines In Concluding That Sundt 4 is 

 BART-eligible. 

 Sundt 4 was constructed in 1964 and operating in 1977. Under the plain 

terms of the Act and the Regional Haze Rule, it is therefore BART-eligible.15 See

November 21, 2012 Memorandum to Docket re TEP Sundt Unit 4 (“Sundt 

Memo”) at 4, JA XX. Sundt 4 was, however, reconstructed in 1987. Arizona TSD 

at 16, JA XX. It therefore potentially falls within the Guidelines’ exemption for 

post-1977 reconstructed sources. Sundt Memo at 4, JA XX. It was on this basis 

 

15 To be BART-eligible, a source must also fall into one of 26 enumerated 

categories and have the potential to emit 250 tons per year of any air pollutant. 40 

C.F.R. § 51.301. Sundt 4 satisfies these criteria. Sundt Memo at 3, JA XX. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 55 of 132(64 of 141)
41 

that the State determined Sundt 4 was not BART-eligible. See Arizona TSD at 17, 

JA XX; 77 Fed. Reg. at 75,720. 

 EPA disapproved this determination as inconsistent with the Act, the 

Regional Haze Rule, and the intent of the Guidelines’ reconstruction exemption. 

See 77 Fed. Reg. at 75,722; 78 Fed. Reg. at 46,151-52. This conclusion grew from 

a set of unique facts. Sundt 4 appears to be the only facility reconstructed pursuant 

to the Power Plant and Industrial Fuel Use Act of 1978 (“Fuel Use Act”), which 

authorized the Department of Energy to require certain power plants to convert to 

burning coal. See 77 Fed. Reg. at 75,720; see also Tucson Power Br. at 8-9, 17 

(Sundt 4 is “the single reconstruction exempted from PSD by Congress”). The 

Fuel Use Act specifically exempted power plants ordered to undergo such 

conversion from PSD requirements -- but not from BART. See 77 Fed. Reg. at 

75,720. Unlike other post-1977 reconstructed sources, Sundt 4 thus did not 

undergo PSD review with its associated visibility analysis when it was 

reconstructed. As the State itself acknowledged, this circumstance is not explicitly 

addressed in the BART Guidelines. Arizona TSD at 17, JA XX. 

 EPA recognized that the Guidelines could be read as indicating that any

post-1977 reconstruction exempts a source from BART eligibility. Sundt Memo at 

4, JA XX. EPA explained, however, that while the Guidelines provide important 

guidance, they must “be considered in the context of the relevant statutory and 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 56 of 132(65 of 141)
42 

regulatory provisions, none of which even refer to such an exemption for post1977 reconstruction.” Sundt Memo at 4, JA XX. There is, moreover, language in 

the preamble to the BART Guidelines stating that “sources reconstructed after 

1977, which reconstruction had gone through NSR/PSD permitting, are not BARTeligible.” Sundt Memo at 5, JA XX (citing 70 Fed. Reg. at 39,111 n.9; emphasis in 

Sundt Memo). When viewed in its full context, the intent of the Guidelines’ 

reconstruction exemption thus appears to have been “avoiding a ‘second bite at the 

apple’ that would result if BART was required for sources for which potential 

visibility impacts had already been addressed” through PSD review. Sundt Memo 

at 5, JA XX. 

With respect to Sundt 4, there has not been even one “bite at the apple,” and 

EPA therefore concluded that it was not reasonable for the State to determine that 

Sundt 4 was not BART-eligible. As EPA explained, given that the Guidelines are 

not mandatory in this case, and that there are no binding statutory or regulatory 

provisions that create a BART-eligibility exemption for post-1977 reconstructions, 

“it is appropriate to read this exemption narrowly.” Sundt Memo at 5, JA XX; 78 

Fed. Reg. at 46,151. Interpreting “BART-eligible” to include reconstructed 

sources that did not go through PSD permitting “is also consistent with 

Congressional intent and with EPA’s intent in promulgating the relevant 

regulations.” Sundt Memo at 5, JA XX. As EPA elaborated in the Rule: 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 57 of 132(66 of 141)
43 

[W]hen EPA promulgated the BART Guidelines, we noted that 

“sources reconstructed after 1977, which reconstruction had gone 

through NSR/PSD permitting, are not BART-eligible.” We read this 

statement to mean that EPA intended for the reconstruction exemption 

to apply only to sources that went through NSR/PSD permitting. Like 

the Guidelines themselves, this preamble language is not binding with 

respect to [Sundt 4], but it still provides important guidance as to how 

EPA interprets the applicable statutory and regulatory provisions. . . . 

Thus, Congress did not intend and EPA does not read the [Regional 

Haze Rule] or BART [Guidelines] as allowing a source to use 

reconstruction as a way to circumvent both BART and PSD review 

and thereby not address the source’s effect on visibility in any fashion. 

78 Fed. Reg. at 46,151.16 Indeed, as EPA noted in the Rule, the Agency took the 

position that “a source either is new (i.e., subject to PSD) or existing (subject to 

BART) and . . . cannot be neither” as far back as 1980. Id.17

The State argues that EPA improperly disregarded the BART Guidelines by 

concluding that the Guidelines’ reconstruction exemption did not apply to Sundt 4. 

See State Br. at 27-30, 33-34; see also Tucson Power Br. at 11-14.18 As the State 

 

16 Contrary to the State’s assertion, State Br. at 29, EPA never said that PSD 

permitting makes BART “redundant.” EPA’s focus was on the fact that a source 

that has undergone neither a PSD nor a BART review has not had its effect on 

visibility addressed “in any fashion.” 78 Fed. Reg. at 46,151. 

17 Tucson Power argues that EPA’s 1980 statements are irrelevant because they did 

not concern a regional haze regulation. Tucson Power Br. at 15-16. The definition 

of “existing stationary facility” promulgated in 1980 was, however, carried 

forward into the Regional Haze Rule without further comment; thus, EPA’s 1980 

discussion remains pertinent. 

18 The State fails to support its assertion that EPA amended the Guidelines merely 

by interpreting an ambiguity – in conjunction with the Act and the Regional Haze 

Rule – to account for Sundt 4’s unique circumstances. See State Br. at 30; see also

 (footnote con’t) 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 58 of 132(67 of 141)
44 

itself emphasizes (see State Br. at 9, 24), the Guidelines are not binding in this 

case. They do, as EPA acknowledged, nonetheless provide important guidance for 

both the State and EPA. See Sundt Memo at 4, JA XX; see also 78 Fed. Reg. at 

46,151; cf. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986) (agency 

guidelines were not controlling on court, but nonetheless represented “‘a body of 

experience and informed judgment to which courts and litigants may properly 

resort for guidance’”) (citation omitted). And given the persuasive nature of the 

BART Guidelines, the State is correct that EPA was obliged to offer a reasonable 

explanation for declining to apply the Guidelines’ reconstruction exemption. See

State Br. at 33-34. As discussed above, however, EPA did so. That explanation 

belies the State’s claim that EPA was “intolerably mute” regarding its basis for 

disapproving the State’s conclusion that Sundt 4 was not BART-eligible, see State 

Br. at 34-35, and otherwise fully justifies EPA’s disapproval of that determination. 

The State also asserts that EPA improperly failed to explain what the State 

views as a logical inconsistency: i.e., that if Sundt 4 were a larger facility and the 

Guidelines were therefore binding, Sundt 4 would not (in the State’s view) be 

BART-eligible. State Br. at 28-29. EPA did not “explain” itself on this point 

because it was not raised in comments; thus, this argument has been waived. See

 

Devon Energy Corp. v. Kempthorne, 551 F.3d 1030, 1032, 1036-37 (D.C. Cir. 

2008) (recognizing that agency may interpret ambiguous rule without amending it). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 59 of 132(68 of 141)
45 

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004) (parties seeking to 

challenge agency actions must participate in the administrative process by 

“‘alert[ing] the agency to the [parties’] position and contentions’ in order to allow 

the agency to give the issue meaningful consideration”) (citation omitted); see also

N. Plains Res. Council, Inc. v. Surface Transp. Bd. 668 F.3d 1067, 1081 (9th Cir. 

2011) (party “waives arguments that are not raised during the administrative 

process”); 42 U.S.C. § 7607 (d)(7)(B) (only objections “raised with reasonable 

specificity during the period for public comment” may be raised during judicial 

review). 

Had the State raised this point, EPA likely would have explained that if the 

Guidelines were binding on Sundt 4, EPA would still have been faced with 

conflicting regulations: 40 C.F.R. § 51.301 (under which any source in operation 

between 1962 and 1977 is BART-eligible) and the Guidelines (under which 

sources reconstructed after 1977 are not BART-eligible). In that case, EPA would 

have been obliged to do precisely what it did here, i.e., reconcile these two 

provisions, guided by statutory and regulatory language and intent. In all 

likelihood, given the intent of the Guidelines’ reconstruction exemption and the 

ambiguity of the Guidelines with respect to reconstructed sources that had not gone 

through PSD review, the result would have been precisely the same. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 60 of 132(69 of 141)
46 

 Amicus Tucson Power argues that EPA was required to read the Guidelines’ 

reconstructed-source exemption broadly because the Guidelines state that “any” 

emission unit reconstructed after 1977 is not BART-eligible, and “any” is typically 

read expansively. Tucson Power Br. at 12-13. As EPA explained in response to 

comments, however, this principle of interpretation applies with equal force to the 

Regional Haze Rule, which defines BART-eligible sources to include “any of 

[certain sources] of air pollutants, including any reconstructed source which was 

not in operation prior to August 7, 1962, and was in existence on August 7, 1977.” 

78 Fed. Reg. at 46,151 (citing 40 C.F.R. § 51.301; emphasis in Federal Register). 

This definition plainly includes Sundt 4, which was constructed in 1964 and was 

still in existence in 1977. EPA went on to explain that to the extent the Guidelines’ 

reconstruction exemption is inconsistent with the Agency’s regulations, “it is the 

regulatory definition, not the BART Guidelines, which is binding on states and 

EPA.” 76 Fed. Reg. at 46,151. 

Tucson Power’s related contention that Sundt 4 is not BART-eligible 

because it was not reconstructed between 1962 and 1977, Tucson Power Br. at 13, 

ignores the plain language of the regulation. A BART-eligible source is defined as 

“any” of certain sources, “including any reconstructed source” in existence in 1977 

but not in operation prior to 1962. 40 C.F.R. § 51.301; see also 70 Fed. Reg. at 

39,160 (definition of BART-eligible facility “includes” sources reconstructed 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 61 of 132(70 of 141)
47 

between August 1962 and August 1977). Tucson Power’s contention that, by 

stating explicitly that certain reconstructed sources are included in the definition of 

BART-eligible source, EPA implicitly excluded all other reconstructed sources, is 

inconsistent with the law. See West v. Gibson, 527 U.S. 212, 217 (1999) (where 

statute explicitly authorized certain remedies, “the preceding word ‘including’ 

makes it clear that the authorization is not limited to the specified remedies there 

mentioned”); see also Chevron, U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80 (2002) 

(noting “expansive” nature of statutory phrase “may include”). 

Finally, Tucson Power places great emphasis on the fact that – as the 

Guidelines explicitly recognize – the Clean Air Act generally distinguishes 

between the standards applicable to new sources and existing sources, with 

reconstructed or modified sources such as Sundt 4 typically being treated as new. 

See Tucson Power Br. at 3-4, 7, 17; see also State Br. at 27. The Act’s general 

approach certainly should (and did) inform EPA’s analysis of the statutory and 

regulatory interpretation issues posed by Sundt 4’s unique history. See generally

78 Fed. Reg. at 46,151-52; 77 Fed. Reg. at 75,720, 75,722; Sundt Memo at 3-5, JA 

XX-XX. That does not mean, however, that EPA unreasonably concluded that, in 

this specific case, Sundt 4’s reconstruction did not convert it into a new source for 

purposes of BART. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 62 of 132(71 of 141)
48 

B. The State’s Arguments Concerning Congressional 

 Intent Have Been Waived, and in Any Event Lack Merit. 

The State makes much of the fact that “it was Congress itself which 

excluded reconstructed units such as Sundt 4 from PSD permitting,” characterizing 

this as “the critical factor.” State Br. at 31; see generally id. at 31-35. The State 

failed to raise this “critical” point in comments, and thus cannot raise it now. See

supra at 44-45. Had the State timely raised this issue, moreover, EPA would have 

explained that Congressional intent was a secondary factor – its primary 

consideration in disapproving the State’s determination that Sundt 4 was not 

BART-eligible was the plain language of the statute and regulations. See Sundt 

Memo at 3, JA XX (“[t]he starting point for any analysis of BART eligibility is 

Clean Air Act Section 169A”); see also id. at 4, JA XX (“the key regulatory 

provision with respect to BART-eligibility is the definition of ‘existing stationary 

facility’ in 40 C.F.R. § 51.301.”). 

EPA did not and does not suggest that Sundt 4 improperly avoided PSD 

review – it was ordered to convert to a different fuel type under a provision that 

exempted it from PSD review, and it did so. The State has, however, offered no 

support for the extraordinary proposition that by exempting units ordered to 

convert fuel types from PSD review, Congress intended to exempt them 

permanently from “environmental requirements” generally, State Br. at 33, or even 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 63 of 132(72 of 141)
49 

all other requirements of the Act.19 Had Congress intended this result, it would 

have explicitly provided that such sources were also exempt from the visibility 

protection requirements of the Act, including BART, which it enacted only the 

year before adopting the Fuel Use Act. 

 The State also complains that EPA did not “explain why Congress would 

have exempted reconstructed units from PSD requirements . . . while 

simultaneously intending that those units must install controls to improve 

visibility.” State Br. at 34. EPA did not “explain” this for the very good reason 

that, again, neither the State nor any party raised the issue in comments. Had this 

issue been raised in comments, EPA likely would have explained that this was 

precisely what Congress did for all major sources in existence as of August 7, 

1977. In the Clean Air Act Amendments of 1977, Congress exempted existing 

sources from PSD until such time as they were modified or reconstructed, see 42 

U.S.C. §§ 7475(a) and 7479(2), but simultaneously made them BART-eligible, id.

§ 7491(a). In the Fuel Use Act, Congress exempted certain reconstructed sources 

from PSD requirements, but said nothing about their eligibility for BART. This 

silence should not be interpreted as a tacit BART exemption of these sources. 

 

19 Indeed, Tucson Power acknowledges that “Sundt Unit 4 remains subject to other 

CAA controls.” Tucson Power Br. at 8, n.6. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 64 of 132(73 of 141)
50 

In sum, the State’s and Tucson Power’s objections to EPA’s careful 

contextual interpretation and application of the Act, the Regional Haze Rule, and 

the Guidelines lack merit, and are wholly insufficient to overcome the deference 

due EPA’s interpretations of the statute and the Agency’s own regulations. See

supra at 22-23. EPA’s disapproval of the State’s determination that Sundt 4 is not 

BART-eligible should therefore be upheld. 

IV. EPA REASONABLY DISAPPROVED THE STATE’S 

 DETERMINATIONS THAT THE NELSON LIME PLANT AND THE 

 COPPER SMELTERS WERE NOT SUBJECT TO BART. 

 As discussed above, a BART-eligible source is one that existed during a 

certain time period, falls into one of 26 enumerated categories, and has the 

potential to emit 250 or more tons per year of any air pollutant. See supra at 37-38, 

40 n.15. The second step of the BART process is determining whether a BARTeligible source is subject to BART – i.e., whether that source emits “any air 

pollutant which may reasonably be anticipated to cause or contribute to any 

impairment of visibility in any [Class I Federal] area.” 42 U.S.C. § 7491(b)(2)(A); 

see also 40 C.F.R. § 51.308(e)(1)(ii). If a source is subject to BART, a State must 

ordinarily make a BART determination for that source. See 40 C.F.R. 

§ 51.308(e)(1)(ii); infra at 72-74. The subject-to-BART analysis is thus a 

screening step that determines whether further analysis is required, not an 

assessment of whether further emission controls are required. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 65 of 132(74 of 141)
51 

 The State considered the individualized contributions of BART-eligible 

sources to determine whether each such source causes or contributes to visibility 

impairment. See 2011 SIP at 135, JA XX. As discussed in greater detail below, 

the State determined that (1) the Nelson Lime Plant was not subject to BART 

because, in the State’s view, emissions from that plant fell below the threshold 

used to determine whether a BART-eligible source causes or contributes to 

visibility impairment, and (2) the Hayden and Miami Smelters were not subject to 

BART for NOX because, according to the State’s calculations, neither facility had a 

potential to emit more than de minimis levels of NOX. Based on its application of 

the Act and the Regional Haze Rule, as well as its review of the State’s technical 

analyses, EPA disapproved these determinations. 

 Arizona again misstates the standard of review, claiming that the State has 

virtually unlimited discretion to determine whether a source is subject to BART 

and that EPA is required to demonstrate that the State’s original determination was 

arbitrary or capricious. See, e.g., State Br. at 36, 38. For the reasons discussed 

supra at 25-37, both of these assertions are incorrect, and the burden rests on the 

State to demonstrate that EPA’s disapproval was arbitrary, capricious, or otherwise 

contrary to law. When the record is viewed in light of the high degree of deference 

due EPA’s statutory and regulatory interpretations and technical judgments, see

supra at 21-25, the State has failed to meet this burden. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 66 of 132(75 of 141)
52 

A. EPA Reasonably Disapproved the State’s Determination That 

 the Nelson Lime Plant is Not Subject to BART. 

The State’s determination that the Nelson Lime Plant is not subject to BART 

was based on an inconsistent application of the State’s chosen approach to making 

subject-to-BART determinations, an inconsistent use of modeling methodologies, 

and modeling results presented without adequate supporting information. EPA 

therefore reasonably disapproved this determination. 

1. The State’s use of modeling results was inconsistent with the 

State’s chosen approach to subject-to-BART 

determinations, and was otherwise unreasonable. 

 In its Regional Haze SIP, Arizona chose to assess the potential of BARTeligible sources to contribute to visibility impairment by comparing the sources’ 

modeled visibility impact over three years to a threshold of 0.5 deciviews.20 More 

specifically, the State explained that if a source’s 22d highest visibility impact 

across three years of modeling was greater than 0.5 deciviews in any Class I area 

within 300 kilometers, the facility would be considered to cause or contribute to 

 

20 Arizona did not provide any rationale for choosing 0.5 deciviews as the 

threshold for determining whether individual sources contribute to visibility 

impairment. See 77 Fed. Reg. at 75,722. Instead of disapproving Arizona’s unexplained threshold and all determinations based on that threshold (as it would 

have been authorized to do), EPA conducted its own analysis, and ultimately 

approved the 0.5 deciviews threshold based on that analysis. See id; see also 78 

Fed. Reg. at 46,152. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 67 of 132(76 of 141)
53 

visibility impairment in that Class I area, and thus would be subject to BART.21 

2011 SIP at 136, JA XX; Arizona TSD at 13, JA XX. The State based its 

determination that the Nelson Lime Plant is not subject to BART on two rounds of 

modeling analysis performed by the plant’s owner: an initial screening assessment 

that modeled the Nelson Lime Plant’s visibility impact on multiple Class I areas, 

and a “refined analysis” that focuses on visibility impacts on Grand Canyon 

National Park. 2011 SIP at 152-53, JA XX-XX. 

 a. The original modeling. 

 The first modeling assessment employed what is known as the “old 

IMPROVE equation” and showed a three-year 98th percentile average impact of 

0.498 deciviews – not, as the State contends, a “maximum visibility impact” of 

0.498 deciviews.22 State Br. at 35 (emphasis added); compare 2011 SIP at 152, 

 

21 The State’s choice is consistent with the BART Guidelines, which recommend 

use of the 22d highest, or 98th percentile, modeled visibility impact rather than the 

highest modeled visibility impact. Using the 98th percentile modeled impact 

captures sources that contribute to visibility impairment in a Class I area, while 

“minimizing the likelihood that the highest modeled visibility impacts might be 

caused by unusual meteorology or conservative assumptions in the model.” 70 

Fed. Reg. at 39,121. The 98th percentile value effectively excludes approximately 

seven days per year. When three years of modeling results are merged together, 

the 22d-highest day corresponds to the 98th percentile value. See id. 22 IMPROVE refers to Interagency Monitoring of Protected Visual Environments. 

77 Fed. Reg. at 75,707. The “IMPROVE equation” or “IMPROVE algorithm” is 

used to calculate light extinction, which is then converted to deciviews. See

Revised IMPROVE Algorithm for Estimating Light Extinction from Particle 

 (footnote con’t) 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 68 of 132(77 of 141)
54 

Table 10.9 Column 4, JA XX (showing three-year average impact). Based on this 

three-year average value, the State concluded that the Nelson Lime Plant was not 

subject to BART. 2011 SIP at 152-53, JA XX-XX; Arizona TSD at 25-26, JA 

XX-XX; 78 Fed. Reg. at 46,154. 

The State argues that EPA should have deferred to Arizona’s determination 

that the Nelson Lime Plant was not subject to BART because “rounding decisions” 

– in this case, what the State characterizes as the decision not to round up from 

0.498 deciviews to the 0.5 deciview threshold – are left to the discretion of the 

states. State Br. at 37; see generally id. at 36-38. The State did not simply decline 

to round up, however; rather, it applied its chosen threshold inconsistently. As 

discussed above, Arizona stated that a source would be subject to BART if its 

twenty-second highest impact across three years of modeling was greater than 0.5 

deciviews. 2011 SIP at 136, JA XX; see also Arizona TSD at 13, JA XX. In 

applying this threshold to the Nelson Lime Plant, however, Arizona did not even 

indicate what that source’s twenty-second highest visibility impact was. 2011 SIP 

at 151-53, JA XX-XX; see also Arizona TSD at 24-26, JA XX-XX. Instead, it 

relied exclusively on a three-year average, without explaining its departure from its 

own chosen methodology. 2011 SIP at 151-53, JA XX-XX. 

 

Speciation Data at 4, JA XX. The IMPROVE equation was first used in 1993, and 

a revised equation was issued in 2005. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 69 of 132(78 of 141)
55 

EPA’s disapproval was not based solely on the State’s inconsistent 

application of its own subject-to-BART threshold. EPA also used its expertise in 

visibility modeling (which is entitled to significant deference, see supra at 21-22) 

to assess the State’s decision to exclude the Nelson Lime Plant from a full BART 

analysis. This assessment took several factors into consideration. First, EPA 

explained that “[i]t's unlikely that the modeling could provide a result that is 

precise to 1/1000th of a deciview” and that “[t]o say that an estimate of 0.498 

[deciviews] is definitively less than 0.5 [deciviews] overburdens the modeling 

results.” 78 Fed. Reg. at 46,154. Second, EPA noted that the 98th percentile 

impact for one of the years modeled was above the 0.5 deciview threshold, but that 

Arizona had disregarded this result and relied solely on a three-year average. 23 Id.; 

see also 77 Fed. Reg. at 75,721, Table 10, Column 3 (showing 98th percentile 

visibility impact of 0.624 deciviews for Nelson Lime Plant in 2003). EPA 

explained that averaging 98th-percentile results across three years is not the 

standard approach, and that it is “less conservative than the FLM-recommended 

 

23 For the Rillito Cement Plant, by contrast, the 98th percentile visibility impact 

never exceeded 0.5 deciviews. See 77 Fed. Reg. at 75,721, Table 10, Columns 1-

3; see also 78 Fed. Reg. at 46,154. There thus is no inconsistency between EPA’s 

approval of the State’s subject-to-BART determination for the Rillito Cement Plant 

and its disapproval of the State’s determination for the Nelson Lime Plant. See

State Br. at 40. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 70 of 132(79 of 141)
56 

approach of selecting the highest impact” from among annual 98th percentile 

results. 78 Fed. Reg. at 46,154.24 

The “FLM-recommended approach” is set forth in the Federal Land 

Managers’ Air Quality Related Values Work Group (FLAG) Phase I Report 

(“Report”). The State dismisses the Report as “non-binding guidance developed 

by other federal agencies for use in a different Clean Air Act program,” State Br. at 

41- 43, but the approach described in the Report represents the judgment of expert 

agencies regarding the appropriate threshold for screening of visibility impacts and 

is explicitly intended to be consistent with the BART Guidelines’ approach to 

subject-to-BART determinations. See Report at 23, JA XX (“for consistency 

between visibility protection programs [i.e. BART and PSD] and to address similar 

concerns, the Agencies will also use the 98th percentile value as a threshold in the 

first-level visibility analyses for new source impacts.”). EPA thus appropriately 

considered this guidance in reviewing the technical adequacy and reasonableness 

of Arizona’s analyses and determinations. 

 

24 Federal Land Managers, or “FLMs,” are responsible for protecting air quality 

related values, including visibility, in Class I areas under the PSD provisions of the 

Act. See 42 U.S.C. § 7475(d)(2)(B). The Act also provides FLMs with a central 

role in implementing the visibility protection provisions of the Act, including the 

regional haze program. See, e.g. 42 U.S.C. § 7491(d). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 71 of 132(80 of 141)
57 

The State’s arguments in support of its use of a three-year average do not 

undermine EPA’s conclusion that this approach was not reasonable. The State’s 

assertion that its approach was appropriate in light of potential visibility 

impairment spikes due to wildfires, State Br. at 43, is entirely specious. Consistent 

with EPA’s recommendation in the BART Guidelines, see 70 Fed. Reg. at 39,162, 

as well as the modeling protocol developed by the Western Regional Air 

Partnership (“WRAP”), Arizona determined the visibility impacts of individual 

sources by calculating the change in deciviews caused by the source compared to 

natural visibility conditions.25 See 2011 SIP at 143, JA XX; see also 78 Fed. Reg. 

at 75,720 (explaining that Arizona’s subject-to-BART modeling was conducted in 

accordance with the WRAP protocol); CALMET/CALPUFF Protocol for BART 

Exemption Screening Analysis for Class I Areas in the Western United States at 1-

5, JA XX-XX. While natural conditions could include short-term spikes from 

wildfires, the effect of a spike in the background level of pollution would be to 

decrease the relative deciview impact of a given source. See 70 Fed. Reg. at 

39,124 (“as a Class I area becomes more polluted, any individual source's 

 

25 The Western Regional Air Partnership is a regional planning organization made 

up of state and tribal governments and federal agencies. It was established to 

initiate and coordinate activities associated with the management of regional haze, 

visibility, and other air quality issues in the western United States. 77 Fed. Reg. at 

75,707-08. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 72 of 132(81 of 141)
58 

contribution to changes in impairment becomes geometrically less”). Thus, the 

possibility of short-term spikes from wildfires would, if anything, argue for a more 

conservative approach to evaluating an individual source’s contribution. 

Arizona also argues that its “three-year average approach is consistent with 

how EPA determines compliance with ambient air standards designed to protect 

human health” (the National Ambient Air Quality Standards, or “NAAQS”). State 

Br. at 43. As EPA explained in response to comments, however, the purpose of the 

0.5 deciview threshold is simply to screen out BART-eligible facilities that may 

not reasonably be anticipated to cause or contribute to visibility impairment at any 

Class I area. 78 Fed. Reg. at 46,154. Because this is a screening tool, not a 

decision to require controls (let alone a compliance assessment), EPA concluded 

that use of a three-year average is not appropriate. See id. 

 b. The refined modeling.

 The “refined” modeling submitted by the State employed the “revised 

IMPROVE equation” and showed a three-year average impact from the Nelson 

Lime Plant of 0.460 deciviews. 2011 SIP at 152-53, Table 10.10, column 5, JA 

XX-XX; see supra 53 n.22. For all of the reasons discussed in the preceding 

subsection, EPA reasonably concluded that the use of a three-year average was not 

appropriate. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 73 of 132(82 of 141)
59 

 In addition, nowhere did the State explain why it relied on the revised 

IMPROVE equation only for this particular source. EPA previously advised 

States that, while either the old or revised IMPROVE equation could be used for 

Regional Haze SIPs, the “methodology should be applied in a consistent manner,” 

Additional Regional Haze Questions (Guidance) (September 27, 2006) at 14, JA 

XX. EPA’s statements in a different rulemaking regarding the merits of the 

revised IMPROVE equation, see State Br. at 39-40, are beside the point, because 

the problem is not that the State used a new equation. The problem is, instead, that 

the State offered no justification for using that equation in the modeling for the 

Nelson Lime Plant, while continuing to apply the old equation to all other sources. 

In reviewing the SIP, EPA thus appropriately focused its review on the company’s 

original modeling results calculated in accordance with the protocol used for all 

other sources. See 77 Fed. Reg. at 75,720.

2. EPA reasonably declined to rely on undocumented 

supplemental modeling results. 

Following EPA’s proposed disapproval of the State’s determination that the 

Nelson Lime Plant is not subject to BART, the plant’s new owner (Lhoist North 

America, or “Lhoist”) submitted a summary of a third round of visibility modeling 

in an attempt to demonstrate that the plant did not contribute to visibility 

impairment. See March 5, 2013, Lhoist Comments at 4-5, JA XX-XX. Lhoist did 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 74 of 132(83 of 141)
60 

not identify the emissions inputs or background conditions used for this modeling, 

making it difficult for EPA to evaluate the modeling results. 78 Fed. Reg. at 

46,154. Lhoist also failed to include individual year results, making it impossible 

for EPA to evaluate the twenty-second highest annual impact (which, as discussed 

supra at 52-53, was the State’s chosen methodology for assessing visibility 

impairment). 78 Fed. Reg. at 46,154. Given these omissions and the overall lack 

of documentation, EPA found that Lhoist’s modeling results were not persuasive. 

Id. 

The State suggests that Lhoist’s omission of inputs and background 

conditions is addressed by Lhoist’s statement that it used “Method 8, Mode 5 in 

CALPOST, with all other aspects of the CALPOST modeling analysis staying the 

same.” Lhoist Comments at 4, JA XX; State Br. at 40. “CALPOST” is a 

processing program for a model known as “CALPUFF,” which EPA has 

determined is “the best regulatory modeling application currently available for 

predicting a single source’s contribution to visibility impairment.” 70 Fed. Reg. at 

39,162. Critically, the settings used for CALPOST processing are unrelated to the 

emission inputs or background conditions used for the underlying CALPUFF 

modeling. See 40 C.F.R. pt. 51, App. W § A.4.c. Lhoist’s comments thus told 

EPA how Lhoist had done its modeling, but did not provide adequate information 

about what data and assumptions went into that modeling. Because the latter 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 75 of 132(84 of 141)
61 

information is critical to evaluating modeling results, EPA reasonably declined to 

rely on Lhoist’s supplemental modeling. 78 Fed. Reg. at 46,154. 

In sum, EPA reasonably concluded that the State’s determination that the 

Nelson Lime Plant was not subject to BART was based on an inconsistent 

approach and unpersuasive modeling. EPA’s disapproval of that determination 

should therefore be upheld. 

B. EPA Reasonably Disapproved the State’s Determination 

 that No BART Determination Was Required For NOX For 

 the Hayden and Miami Smelters. 

 A State must consider emissions of SO2, NOX, and particulate matter (“PM”) 

in determining whether a source is subject to BART. 78 Fed. Reg. at 46,155 

(citing BART Guidelines). If, once all of these emissions are accounted for, a 

source has a visibility impact above the selected threshold (in this case, 0.5 

deciviews), that source is subject to BART. See supra at 50; 78 Fed. Reg. at 

46,155. Even for a source that is subject to BART, however, a State need not 

make a BART determination for every pollutant if the source’s potential to emit 

(“PTE”) one or more pollutants is below a specified de minimis level. See 40 

C.F.R. § 51.308(e)(1)(ii)(C); 78 Fed. Reg. at 46,155. For NOX, the de minimis

level is a potential to emit 40 tons per year (“tpy”). 40 C.F.R. 

§ 51.308(e)(1)(ii)(C). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 76 of 132(85 of 141)
62 

Neither the 2011 SIP nor the 2013 Supplement includes a BART 

determination for NOX emissions from either of the copper smelters. The lack of 

such a determination was initially based on the State’s conclusion that neither 

facility has the potential to emit more than 40 tons per year of NOX. See 77 Fed. 

Reg. at 75,721; 78 Fed. Reg. at 46,155 (Hayden Smelter); 77 Fed. Reg. at 75,722; 

78 Fed. Reg. at 29,301; 78 Fed. Reg. at 46,156 (Miami Smelter). Commenters on 

EPA’s proposed disapproval of the lack of a BART determination for NOX for the 

copper smelters also argued, however, that no such determination was required 

because the visibility impact of NOX emissions in isolation is below 0.5 deciviews. 

See Arizona Department of Environmental Quality Comments at 11-12, JA XXXX; ASARCO LLC Comments at 8, JA XX. The State and the Association now 

rely on both theories to argue that the copper smelters are not “subject to BART for 

NOX.” State Br. at 44; see generally id. at 44-48; Association Br. at 44-59. 

Neither argument has merit, and EPA’s disapproval of the State’s determination 

that no BART analysis is required for NOX at the Hayden and Miami smelters 

should thus be upheld. 

 1. The record supports EPA’s conclusion that the State 

 failed to demonstrate that the copper smelters lack the 

 potential to emit more than 40 tons per year of NOX. 

 “Potential to emit” is defined as “the maximum capacity of a stationary 

source to emit a pollutant under its physical and operational design.” 40 C.F.R. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 77 of 132(86 of 141)
63 

§ 51.301. Physical or operational limitations on emissions capacity (e.g., 

restrictions on hours of operation) may be taken into account, but only if those 

limitations are federally enforceable. Id. The State concluded that each of the 

copper smelters lacked the potential to emit more than 40 tons per year of NOX, a 

conclusion which – if supported – would mean that no BART determination for 

NOX was required for those sources. 

 The record supports EPA’s finding that the State failed to justify this 

conclusion. See 77 Fed. Reg. at 75,722; 78 Fed. Reg. at 29,301, 46,171. For the 

Miami Smelter, the Western Regional Air Partnership identified an annual NOX

emission rate of 158 tons per year for the units constituting the BART-eligible 

source. 26 77 Fed. Reg. at at 75,722 n.92 (citing Summary of WRAP RMC BART 

Modeling for Arizona, Draft#5, May 25, 2007). For the Hayden Smelter, based on 

the NOX emission rate used by WRAP, the potential NOX emissions of the facility 

are 78.9 tons per year. 78 Fed. Reg. at 46,155. EPA explained that, while this is 

an “overly conservative estimate of NOX [potential to emit] given the batch nature 

of the operations at the Hayden Smelter,” EPA was unable to “identify any 

physical or operational limitations that would limit the [potential to emit] of the 

 

26 The term “unit” refers to a single piece or closely related set of equipment. See, 

e.g., 40 C.F.R. § 51.50. A stationary “source” or “facility” is comprised of one or 

more such units. See 42 U.S.C. § 7602(z) (defining “stationary source”). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 78 of 132(87 of 141)
64 

BART-eligible source below the NOX de minimis threshold of 40 [tons per year].” 

Id.; see also 78 Fed. Reg. at 29,301 (neither State nor smelter owner provided 

analysis demonstrating that potential NOX emissions are below de minimis

threshold). Accordingly, EPA found that a NOX BART analysis was required for 

both of the smelters. 

Neither the State nor the Association have identified any evidence in the 

record establishing that either smelter’s potential NOX emissions are less than 40 

tons per year. The Association cites an analysis submitted by FMMI (the owner of 

the Miami Smelter) and incorporated in the 2013 Supplement “that estimated 

maximum annual output based on the Miami smelter’s highest observed daily 

natural gas use over a six-year period.” Association Br. at 52.27 The Association 

argues at some length that this analysis demonstrated that, historically, NOX

emissions from the Miami smelter are below 40 tons per year. See Association Br. 

at 52-59. The study’s conclusions are not in question; thus, the fact that EPA did 

not question the accuracy of the underlying data, see Association Br. at 55, is 

irrelevant. As EPA explained, the problem was not that the study was flawed; 

 

27 This study addresses only the Miami Smelter. The Association asserts that if the 

Miami Smelter’s emissions fall below the 40 tons per year de minimis level, the 

Hayden Smelter’s emissions must do so as well. Association Br. at 26, 52 n.17. 

The Association has, however, offered nothing to contradict the data in the record, 

which demonstrates that the Hayden Smelter has the potential to emit 78.9 tons per 

year of NOX. See 78 Fed. Reg. at 46,155. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 79 of 132(88 of 141)
65 

rather, it was that it did not demonstrate that the Miami smelter’s potential to emit 

NOX – not merely its history of NOX emissions – is below the de minimis

threshold: 

[The study] did not identify any inherent physical or operational limitations 

to determine the [potential to emit] of NOX from the BART-eligible units, 

and did not identify legally and practically enforceable limitations on the 

operations or emissions from these units. Historical records of actual 

emissions, fuel usage, or material throughput are not inherent physical 

limitations and do not demonstrate the maximum capacity of a source. 

78 Fed. Reg. at 29,301. 

 In response to comments by FMMI, EPA again explained that neither FMMI 

nor the State had identified any inherent physical or operational limitation for 

primary copper smelters, and that, “in the absence of an enforceable limit on 

operations, the NOX [potential to emit] for the BART-eligible units at the Miami 

Smelter is greater than 40 [tons per year] and a BART analysis for NOX is 

required.” 78 Fed. Reg. at 46,171. As EPA further explained, the absence of 

inherent physical or operational limitations distinguishes primary copper smelters 

from sources discussed in EPA guidance documents applicable to different source 

categories. See id. at 46,170-71; Association Br. at 57-58. The Association’s 

claim that EPA did not “meaningfully respond” to the analysis the State relied on, 

Association Br. at 26, 52, is thus rebutted by the administrative record. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 80 of 132(89 of 141)
66 

 The State points out that the “batch process” copper smelters cannot operate 

continuously, asserting that this undercuts EPA’s conclusion that the State failed to 

demonstrate that potential NOX emissions from the smelters are less than 40 tons 

per year. State Br. at 46. Continuous as opposed to periodic operation is not, as 

the State implies, the only potential operational variable – for example, the size or 

number of batches processed at either smelter could vary. Thus, in the absence of 

a federally enforceable limitation, potential to emit for batch operations should be 

calculated based on the “worst-case emissions based on the highest emitting 

combination of production cycles.” 78 Fed. Reg. at 29,301. . The State’s potentialto-emit calculations were based solely on the copper smelters’ past operations, 

with no showing that those operations reflected the smelters’ maximum possible 

output or any federally enforceable limit on operations. EPA thus reasonably 

disapproved the State’s conclusion that both smelters’ potential to emit NOX fell 

below the de minimis threshold. 

 2. EPA reasonably rejected the State’s pollutant-specific 

 approach to the subject-to-BART determination. 

 There is no dispute that both the Hayden and Miami smelters emit pollutants 

that cause or contribute to visibility impairment, as both facilities’ SO2 emissions 

clearly exceed the 0.5 deciview threshold. See State Br. at 47. The State and the 

Association nonetheless argue that these facilities are not “subject to BART for 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 81 of 132(90 of 141)
67 

NOX” because the modeled visibility impacts of their respective NOX emissions, 

viewed in isolation, are below 0.5 deciviews. See State Br. at 45-48; Association 

Br. at 19, 44-51. As EPA explained, however, 

[O]nce a facility is determined to be subject to BART, the [Regional 

Haze Rule] allows for the exemption of specific pollutants from a 

BART analysis only if they are below specified de minimis levels.[] 

Although a small pollutant-specific baseline visibility impact may be 

informative in determining what control option may be BART, a 

BART analysis is still required for any pollutant that exceeds the de 

minimis threshold at an otherwise subject-to-BART source.

78 Fed. Reg. at 46,156 (emphasis added). 

 Petitioners fail to demonstrate that EPA’s interpretation and application of 

the Regional Haze Rule is unreasonable. Initially, Petitioners launch a variety of 

arguments that have all been well rebutted above: the extraordinary deference 

purportedly due State regional-haze SIPs, State Br. at 47 (see supra at 25-35); the 

claim that EPA’s interpretation of its own regulations is, by contrast, not entitled to 

deference, State Br. at 48, Association Br. at 46 n.14 (see supra at 23-25); and the 

claim that EPA cannot disapprove any aspect of a State regional haze SIP that does 

not violate an explicit provision of the Act or the Regional Haze Rule, Association 

Br. at 45-47, 49 (see supra at 35-37). 

The Association asserts that EPA’s approach here is inconsistent with 

statements made when EPA revised the Regional Haze Rule and adopted the 

BART Guidelines. Association Br. at 25, 47-48. The Association, however, 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 82 of 132(91 of 141)
68 

distorts the meaning of these statements by taking them out of context. When EPA 

revised the Regional Haze Rule, it proposed to require a BART analysis for all 

visibility-impairing pollutants emitted by a source, regardless of amount. 

However, in the final rule, EPA explained that there was more than one reasonable 

interpretation of the statutory text: 

Section 169A(b)(2)(A) of the Act can be read to require the States to make a 

determination as to the appropriate level of BART controls, if any, for 

emissions of any visibility impairing pollutant from a source. Given the 

overall context of this provision, however, and that the purpose of the BART 

provision is to eliminate or reduce visibility impairment, it is reasonable to 

read the statute as requiring a BART determination only for those emissions 

from a source which are first determined to contribute to visibility 

impairment in a Class I area. 

70 Fed. Reg. at 39,116. The Association cites the underlined language, 

Association Br. at 47, but makes no mention of the preceding discussion. 

 As shown by that discussion, EPA did no more than acknowledge that 

Section 169A(b)(2)(A) could reasonably be read in more than one way. Critically, 

however, EPA did not revise the Regional Haze Rule to permit States to avoid 

making a BART determination for specific pollutants based on their individual 

contribution to visibility impairment. To the contrary, in the final rule EPA 

retained the requirement that States make a BART determination “ . . . for each 

BART-eligible source in the State that emits any air pollutant which may 

reasonably be anticipated to cause or contribute to any impairment of visibility in 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 83 of 132(92 of 141)
69 

any mandatory Class I Federal area.” 40 C.F.R. § 51.308(e)(1)(ii) (emphasis 

added). The only revision made to allow for exemption of specific pollutants from 

a BART analysis was for de minimis emissions. 40 CFR § 51.308(e)(1)(ii)(C). As 

explained in the preceding subsection, the State has not established that this 

exemption applies to either of the smelters. 

 The Association also argues that the Regional Haze Rule does not require 

“aggregation” of pollutant emissions in making a subject-to-BART determination. 

Association Br. at 45-46, 49-50. This is a red herring, as there was no 

“aggregation” here. Again, there is no dispute that emissions of SO2 alone take 

both facilities over the State’s chosen 0.5-deciview threshold for determining 

whether a source causes or contributes to visibility impairment. And under the 

Regional Haze Rule and the Act itself, sources that emit “any air pollutant” which 

may cause or contribute to visibility impairment must make a BART 

determination. 41 C.F.R. § 51.308(e)(1)(ii); 42 U.S.C. § 7491(b)(2)(A); see also

64 Fed. Reg. at 35,740 (State must establish emission limitations for BARTeligible sources which may reasonably be anticipated to cause or contribute to 

regional haze; to do so, State must develop emission limits “which reflect the 

application of the best system of continuous emission reduction for each pollutant” 

emitted by a source subject to BART (emphasis added)). The sole exception to 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 84 of 132(93 of 141)
70 

this rule is the de minimis exemption, which as already discussed does not apply to 

NOX emissions from the copper smelters. 

 The Association’s related claim that EPA’s approach could result in 

similarly situated facilities being treated differently, see Association Br. at 49-50, 

depends on a definition of “similarly situated” that is at odds with the broad 

language of the Act and the Regional Haze Rule. The Association views 

“similarly situated” facilities as being limited to those that emit the same amount of 

a given pollutant (e.g., NOX). See Association Br. at 49. The governing law, 

however, requires a BART determination for a facility that emits any air pollutant 

in amounts that exceed the applicable cause-or-contribute threshold. All such 

facilities are treated alike, i.e. they are required to make BART determinations for 

pollutants emitted in excess of applicable de minimis levels. 

 Finally, Petitioners point to the supposed futility of a BART determination 

for NOX at the Hayden and Miami smelters. State Br. at 47; Association Br. at 19-

20, 25, 50-51. Both Petitioners miss the point. The State could well have 

reasonably determined that the cost of compliance was too high or the visibility 

benefit too low to warrant additional controls on NOX emissions at the Hayden and 

Miami smelters, if it had conducted the required BART analysis – indeed, that is 

precisely what happened in this case with regard to PM emissions from the Hayden 

smelter. See 78 Fed. Reg. at 29,303 (proposing to approve State determination that 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 85 of 132(94 of 141)
71 

“based upon the small amount of anticipated visibility improvement from 

additional particulate controls,” BART for PM10 at Hayden Smelter was no 

additional controls); 78 Fed. Reg. at 46,155 (finalizing proposed approval). The 

mere fact that controls may prove unwarranted is not, however, grounds for 

entirely refusing to conduct a BART determination for more-than-de minimis NOX

emissions from a facility that undisputedly emits “any air pollutant which may 

reasonably be anticipated to cause or contribute to any impairment of visibility,” 

42 U.S.C. § 7491(b)(2)(A).28 That is exactly the purpose of a BART analysis – 

i.e., to determine whether the relevant factors support requiring additional controls. 

 In sum, the record supports EPA’s conclusions that the copper smelters are 

subject to BART and that the State failed to demonstrate that NOX emissions from 

either facility are below the regulatory de minimis threshold. EPA disapproval of 

the State’s determination that neither of the copper smelters was subject to BART 

for NOX should therefore be upheld. 

 

28 Nor, contrary to Petitioners’ assertions, did EPA state that further NOX controls 

were required at the smelters – only that an analysis of potential controls was 

required. See State Br. at 47; Association Br. at 20, 45; compare 78 Fed. Reg. at 

46,156 (finalizing disapproval of State conclusion that no BART determination 

was required). Indeed, based upon its own five-factor BART analysis, EPA 

recently proposed to find that no additional controls were required for BART for 

NOX at the copper smelters. 79 Fed. Reg. at 9320-21. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 86 of 132(95 of 141)
72 

V. EPA REASONABLY DISAPPROVED THE STATE’S 

 DETERMINATION THAT EXISTING CONTROLS AT THE 

 COPPER SMELTERS CONSTITUTE BART FOR SO2. 

In contrast to its finding that the copper smelters were exempt from BART 

for NOX, Arizona determined that both copper smelters were subject to BART for 

SO2, and EPA approved this determination. See 78 Fed. Reg. at 46,152. Arizona 

was therefore required to conduct a BART analysis and, if supported by that 

analysis, select an appropriate BART emission limit for SO2 for each smelter. 40 

C.F.R. § 51.308(e)(1)(ii); see also 42 U.S.C. § 7491(b)(2)(A). BART is “an 

emission limitation based on the degree of reduction achievable through the 

application of the best system of continuous emission reduction for each pollutant 

which is emitted by an existing stationary facility.” 40 C.F.R. § 51.301. This 

emission limit is to be established case-by-case, taking five statutory factors 

(collectively, the “BART factors”) into consideration: (a) the costs of compliance; 

(b) the energy and nonair quality environmental impacts of compliance; (c) any 

existing pollution controls in use at the source; (d) the remaining useful life of the 

source; and (e) the predicted visibility improvements from use of controls. 42 

U.S.C. § 7491(g)(2); see also 40 C.F.R. § 51.308(e)(1)(ii)(A). The BART 

Guidelines provide a detailed step-by-step process for evaluating each of the five 

factors. 70 Fed. Reg. at 39,164-66. The State must document its analysis of these 

factors and include this documentation in its SIP. 40 C.F.R. § 51.308(e)(1)(ii)(A). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 87 of 132(96 of 141)
73 

For sources that are already subject to stringent controls, such as the 

Maximum Achievable Control Technology (“MACT”) standards established under 

Section 112(d) of the Act, a state may “streamline the analysis by including a 

discussion of the MACT controls and whether any major new technologies have 

been developed subsequent to the MACT standards.”29 70 Fed. Reg. at 39,163. 

By contrast, the Guidelines caution that other, less stringent standards, such as new 

source performance standards under Section 111 of the Act (“NSPS”), should not 

be considered automatically to represent the best control for existing sources.30 Id.

at 39,164. Thus, while “[a]nalysis of the BART factors could result in the 

selection of a NSPS level of control,” a State “should reach this conclusion only 

after considering the full range of control options.” Id. (emphasis added). 

Finally, based on the results of the BART analysis, whether a complete fivefactor analysis or a streamlined analysis, the State must set emission limitations 

representing BART and schedules for compliance with BART for the relevant 

 

29 MACT standards set emission limits for hazardous air pollutants at certain 

stationary sources. 42 U.S.C. § 7412(d). For existing sources, these standards 

must be at least as stringent as the average emission limit achieved by the bestperforming sources in the source category. 42 U.S.C. § 7412(d)(3). 

30 New source performance standards are technology-based standards that apply to 

specific source categories. See 42 U.S.C. § 7411(b). EPA sets these standards at a 

level representing “application of the best system of emission reduction” that has 

been “adequately demonstrated,” taking into account “the cost of any such 

reduction and any nonair quality health and environmental impact and energy 

requirements.” Id. § 7411(a)(1). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 88 of 132(97 of 141)
74 

source. 40 C.F.R. § 51.308(e). Furthermore, the State must require each source 

subject to BART “to install and operate BART as expeditiously as practicable” and 

must ensure that control equipment required for compliance with BART emission 

limits is properly operated and maintained. 40 C.F.R. § 51.308(e)(1)(iv)-(v). 

 EPA’s review of Arizona’s SO2 BART analyses and determinations for the 

copper smelters revealed that the State had failed to conduct an adequate analysis 

of potential control options and had failed to promulgate enforceable emission 

limitations applicable to the entire BART source. Accordingly, EPA reasonably 

disapproved the State’s BART determinations for SO2 at the copper smelters. 

A. The State Did Not Conduct An Adequate Analysis Of 

 Potential BART Controls For The Copper Smelters. 

 1. The State did not conduct a five-factor analysis. 

 

 In its Regional Haze SIP, Arizona adopted a seven-step process for 

conducting BART analyses, which included a separate analysis of each of the five 

BART factors. 77 Fed. Reg. at 75,723; see also Arizona TSD at 33-39, JA XXXX. For the majority of its subject-to-BART sources, Arizona followed this 

approach, separately analyzing each of the five BART factors. 77 Fed. Reg. at 

75,723; Arizona TSD at 41-83, 103-115, JA XX-XX, XX-XX. For the copper 

smelters, however, Arizona instead performed ‘streamlined’ analyses relying on 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 89 of 132(98 of 141)
75 

the NSPS for primary copper smelters. 77 Fed. Reg. at 75,723; Arizona TSD at 

85-100, JA XX-XX. 

 EPA proposed to disapprove the State’s BART determinations because the 

State had not “provide[d] information demonstrating that NSPS Subpart P [i.e., the 

primary copper smelter standard] meets the requirements for a streamlined BART 

determination.” Id. at 75,725 (Miami Smelter), 75,727 (Hayden Smelter). In order 

to give the State an additional opportunity to conduct an adequate BART analysis, 

EPA proposed in the alternative to approve the State’s determinations, if additional 

information was provided to support those determinations. Id. Neither Arizona’s 

comments on EPA’s proposal nor the 2013 Supplement included a five-factor 

analysis for SO2. EPA therefore concluded that Arizona’s analyses were 

“inconsistent with the general statutory and regulatory requirement for a complete 

five-factor analysis and with the BART Guidelines’ admonition that NSPS should 

be selected as BART only after a complete five-factor analysis.” 78 Fed. Reg. at 

46,157-58. 

 Neither the State nor the Association contests EPA’s finding that Arizona 

did not conduct the required five-factor analysis for the copper smelters. See 78 

Fed. Reg. at 46,157. The State simply ignores EPA’s finding that Arizona failed to 

meet this requirement, while the Association suggests that this lack of analysis was 

acceptable because “no statute or regulation mandates that SIPs expressly address 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 90 of 132(99 of 141)
76 

each BART factor individually for every facility that is subject to BART.” 

Association Br. at 35 n.11; see also id. at 23, 30-31. This is inaccurate. Both the 

Act and the Regional Haze Rule identify five factors to be taken into account in 

determining BART. 42 U.S.C. § 7491(g)(2), 40 C.F.R. § 51.308(e)(1)(ii)(A). 

EPA reasonably interpreted these provisions to require express consideration of 

each factor, except where a source already has installed the most stringent emission 

controls available or a source commits to installation of such stringent controls. 

See 70 Fed. Reg. at 39,163-70. The State and the Association have thus failed to 

identify anything that undermines EPA’s conclusion that the State failed to 

perform the required five-factor analysis – and that, as discussed in the next 

section, the State’s “streamlined” analysis was not an adequate substitute. 

 2. The State did not conduct an adequate streamlined 

 analysis. 

 If the State’s streamlined analysis had demonstrated that the copper smelters 

had already installed the most stringent controls, then no five-factor analysis would 

be necessary. See 70 Fed. Reg. at 39,165. EPA concluded that the State had not 

made this demonstration because the State relied on the forty-year-old NSPS for 

primary copper smelters without fully evaluating the availability of new or 

upgraded controls. 78 Fed. Reg. at 46,157-58. The State considered only one 

source of information: a database of control technology determinations and 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 91 of 132(100 of 141)
77 

emission limits established in construction permits issued by state and local 

agencies, known as the RACT/BACT/LAER Clearinghouse (“Clearinghouse”).31 

Based on this database, the State found that no emission limitation or air pollution 

control devices had been approved for copper smelters for sulfur oxides since the 

NSPS became effective in 1974. 78 Fed. Reg at 46,158. 

 EPA found the State’s research inadequate in light of the availability of 

several other sources of information regarding potential control technology 

upgrades. Id. Specifically EPA explained that: 

. . . acid plant catalyst vendor information and industry trade journals 

indicate that a number of advances in acid plant catalyst technology have 

been made since promulgation of Subpart P in 1974, including development 

of cesium promoted catalyst as well as certain enhancements to standard 

potassium promoted catalysts. These improvements to acid plant catalysts 

have the ability to increase conversion rates of SO2 to SO3 in the acid plant, 

resulting in decreased SO2 emissions. 

78 Fed. Reg. at 46,158 (citing publications regarding acid plant catalyst 

performance). Therefore, EPA concluded that Arizona “should have considered 

whether any such improvements could be made at the Hayden and Miami acid 

plants” and that, absent such consideration, it was not reasonable for the State to 

“conclude that the existing acid plant at each facility constitutes the most stringent 

 

31 “RACT,” “BACT,” and “LAER” refer to technology-based standards established 

under the Act’s new source review programs. See generally 42 U.S.C. §§ 7475, 

7503. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 92 of 132(101 of 141)
78 

control available and to thus avoid performance of a complete five-factor 

analysis.” Id. (citing BART Guidelines). 

 The State and the Association assert that it was not necessary for the State to 

look beyond the Clearinghouse because of the differences between metallurgical 

acid plants, such as those used for pollution control at the copper smelters, and 

primary sulfuric acid plants, whose sole purpose is to produce acid. State Br. at 

49-50; Association Br. at 36-42. However, as EPA explained in response to 

similar comments on its proposal: 

. . . all sulfuric acid plants, whether elemental sulfur, spent acid, or 

metallurgical, utilize the contact process to manufacture sulfuric acid. That 

is, all plants use the same equipment and the same technology to convert 

SO2 to sulfuric acid--the same converters, catalyst, and absorbing towers. 

Also, all sulfuric acid plants utilize the same pollution control technology. . 

. . The efficacy of catalyst improvements is independent of whether the 

sulfuric acid plant is attached to a copper smelter. 

78 Fed. Reg. at 46,158 (emphasis added). Contrary to Petitioners’ suggestion that 

EPA failed to account for the differences between these types of plants, EPA 

specifically considered these differences and found that they did not preclude a 

meaningful comparison of improvements in emission control between the two 

types of plants: 

The difference between primary sulfuric acid plants and metallurgical 

sulfuric acid plants is the source of the SO2 coming into the acid plant and 

the front-end equipment necessary to prepare the SO2-rich gas to be 

introduced to the converter. The commenters assert that there is variation in 

the concentration SO2 gas feed to their sulfuric acid plant converters. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 93 of 132(102 of 141)
79 

However, the fact that the Hayden and Miami Smelters successfully operate 

dual absorption sulfuric acid plants demonstrates that they can handle 

variations in SO2 concentration. So long as this is the case, these plants 

would be expected to achieve cost-effective SO2 emissions reductions 

through catalyst improvements. 

Id. 

 EPA therefore reasonably concluded that it was unreasonable for the State 

“not to evaluate the emissions levels achieved at primary sulfuric acid plants in the 

State’s SO2 BART analyses for the Hayden and Miami Smelters.” Id. Notably, 

EPA did not claim either that the precise “level of performance achieved by the 

sulfuric acid industry is achievable by the smelters,” State Br. at 49-50, nor that the 

two types of acid plants are “interchangeable for regulatory purposes,” Association 

Br. at 41. Rather, EPA found that primary sulfuric acid plants and metallurgical 

sulfuric acid plants are similar enough to require consideration of recent 

technological improvements at primary acid plants before concluding that no such 

improvements were possible at metallurgical plants. The Association’s citations to 

differences in regulatory treatment of primary and metallurgical acid, Association 

Br. at 40-41, do not undermine EPA’s finding in this regard. It is often the case 

that emission units are subject to different regulatory requirements, yet share 

common characteristics that make technological improvements applicable to one 

type of unit relevant to another. See 70 Fed. Reg. at 39,164 (“control alternatives 

can include not only existing controls for the source category in question but also 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 94 of 132(103 of 141)
80 

take into account technology transfer of controls that have been applied to similar 

source categories and gas streams.”). 

 The record contradicts the Association’s assertion that EPA relied solely on 

the BART Guidelines in concluding that the State was required to look further than 

the Clearinghouse. Association Br. at 36-37. EPA cited both the Act and the 

Regional Haze Rule, explaining that because the State “performed neither a full 

five-factor analysis nor an adequate streamlined analysis for SO2 at the Hayden and 

Miami Smelters, we find that its determinations do not comply with CAA section 

169A(g)(2) and 40 C.F.R. § 51.308(e)(1)(ii)(A).” 78 Fed. Reg. at 46,158. EPA 

also appropriately considered the BART Guidelines, not because they are binding 

on the copper smelters, but because they provide valuable technical guidance for 

all BART sources. Indeed, Arizona itself indicated that it was following the BART 

Guidelines in conducting all of its BART analyses. Id. at 46,157. With regard to 

the copper smelters in particular, Arizona attempted to avail itself of the option of 

conducting a “streamlined” BART analysis -- an option found only in the BART 

Guidelines, not in the Act or the Regional Haze Rule. Compare 42 U.S.C. 

§ 7491(g)(2) and 40 C.F.R. § 51.308(e)(1)(ii)(A) (requiring five-factor analysis for 

all subject-to-BART sources) with 70 Fed. Reg.at 39,163-64 (allowing for 

streamlined analyses under specific circumstances). Given that the State relied on 

the Guidelines as the legal basis for its streamlined analyses for the copper 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 95 of 132(104 of 141)
81 

smelters, it was more than reasonable for EPA to consider the Guidelines along 

with the statute and the Regional Haze Rule in reviewing those analyses. 

 The State and the Association now assert that it was reasonable for Arizona 

to rely on the NSPS for primary copper smelters because EPA has purportedly 

determined that those standards do not need to be reviewed. See State Br. at 49; 

Association Br. at 20-21, 32-34. Petitioners rely on an October 2011 advanced 

notice of proposed rulemaking (“Notice”) and its associated Technical Support 

Document (“TSD”), neither of which are in the administrative record for the Rule. 

See New Source Performance Standards (NSPS) Review, 76 Fed. Reg. 65,653 

(Oct. 24, 2011); Association Br. at 7, 33. These documents were not cited by the 

State in its SIP, nor did any party raise them in comments. Arguments based on 

the Notice and TSD have therefore been waived. See supra at 44-45. 

 If the Notice had been raised in comments, EPA could have explained that it 

did not contradict EPA’s findings regarding Arizona’s BART analyses. While the 

Notice did identify the primary copper smelter NSPS as one of several “potential 

candidates to not undergo review,” 76 Fed. Reg. at 65,659, the purpose of the 

Notice was not to review any NSPS at all, but “to request public comment on a 

strategy for focusing reviews of the NSPS . . .” Id. at 65,657 (emphasis added). 

Accordingly, contrary to the State’s and the Association’s characterizations, EPA 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 96 of 132(105 of 141)
82 

did not “review” the primary copper smelter NSPS, State Br. at 49, nor did it 

“conclude” that the NSPS did not need review, Association Br at 33. 

 Moreover, even if the Notice had constituted a “conclusion” that a “review 

of the currently available technologies would not result in a more stringent level of 

control” for purposes of the generally applicable NSPS, Association Br. at 33-34, 

this finding would not have removed the State’s obligation to consider whether 

additional improvements were available for purposes of BART at specific 

facilities. While the Association notes that “there is substantial textual and 

practical overlap between the factors that EPA must consider when setting an 

NSPS and the factors that a State must consider when determining BART,” 

Association Br. at 31, these requirements serve different purposes, and are based 

on different factors. BART determinations are made on a case-by-case basis, 

taking into account (among other factors) the expected “degree of improvement in 

visibility.” 42 U.S.C. § 7491(g)(2), 40 C.F.R. § 51.308(e)(1)(ii)(A). By contrast, 

the NSPS represent the minimum level of control that all sources in a source 

category must meet, without any required consideration of expected improvements 

in visibility. See 42 U.S.C. §§ 7411(b)(1)(B), 7479(3). Thus, even if EPA had 

made a definitive finding with regard to the stringency of the NSPS for primary 

copper smelters (which it has not), such a finding would not have obviated the 

need for consideration of potential upgrades for purposes of BART. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 97 of 132(106 of 141)
83 

 In sum, EPA’s conclusion that the State conducted neither a complete fivefactor analysis nor an adequate streamlined analysis, and the Agency’s consequent 

disapproval of Arizona’s SO2 BART determinations for the copper smelters, are 

reasonably and fully supported by the administrative record. EPA’s disapproval 

should therefore be upheld. 

B. The SIP Did Not Include Enforceable Emissions Limitations 

 Applicable To All BART-Subject Emissions, As Required By The 

 Act And Regional Haze Rule. 

 EPA found that the Arizona Regional Haze SIP lacked the requisite 

compliance deadlines and operation and maintenance procedures, as well as 

monitoring, recordkeeping and reporting requirements to ensure the enforceability 

of the State’s BART determinations at the copper smelters. 77 Fed. Reg. at 75,725 

(Miami), 75,726 (Hayden). As EPA explained, Regional Haze SIPs must include 

“(1) A schedule for compliance with BART emission limitations for each source 

subject to BART; (2) a requirement for each BART source to maintain the relevant 

control equipment and (3) procedures to ensure control equipment is properly 

operated and maintained.” 77 Fed. Reg. at 75,726 (citing 40 C.F.R. § 

51.308(e)(1)(iv)-(v)); see also Mont. Sulphur & Chem. Co., 666 F.3d at 1196 

(“EPA correctly reads 42 U.S.C. § 7410(a)(2) as requiring states to include 

enforceable emission limits and other control measures in the plan itself.”). 

Furthermore, the SIP must include “all regulatory requirements related to 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 98 of 132(107 of 141)
84 

monitoring, recordkeeping and reporting for the BART emissions limitations.” 77 

Fed. Reg. at 75,725 (citing 42 U.S.C. § 7410(a)(2)(F); 40 C.F.R. § 51.212(c)). 

 EPA found that, “[w]hile some of the required compliance provisions may 

be contained in the Hayden and Miami Smelters' Title V permits, these provisions 

are not incorporated into the applicable SIP. Likewise the SIP contains no 

compliance schedules or requirements or procedures to ensure that the control 

equipment is properly operated and maintained.” 78 Fed. Reg. at 46,159. EPA 

therefore concluded that Arizona’s SO2 BART determinations for the smelters did 

not meet the requirements of 40 C.F.R. §§ 51.212(c) and 51.308(e)(1)(iv)-(v). 

 The Association argues that no compliance provisions are needed because 

“the NSPS emission limit is independently enforceable under the CAA . . . and is 

also included as an enforceable condition of the smelters’ operating permits” 

Association Br. at 43. For the reasons discussed in the preceding subsection, the 

State did not demonstrate that the NSPS for primary copper smelters constitutes 

BART for the copper smelters. Even if it did, moreover, the smelters’ permits 

limit the applicability of the NSPS requirements to a subset of the plants’ 

emissions.32 The permits also contain “permit shields” which effectively remove 

 

32 In particular, the Title V permit for the Hayden Smelter states that the NSPS 

requirements apply only to “the following affected facilities: Nos. 1 and 2 Fuller 

fluid bed dryers, and the portion of the Inco oxygen flash furnace that uses the 

 (footnote con’t) 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 99 of 132(108 of 141)
85 

the independent enforceability of the NSPS requirements, except to the extent they 

are specifically listed in the facilities’ Title V permits.33 The NSPS provisions in 

the copper smelters’ permits thus (1) do not reach all subject-to-BART emissions 

at the copper smelters, and (2) are not independently enforceable.34 As such, they 

do not satisfy the requirements of the Act or the Regional Haze Rule. EPA’s 

determination that the SIP lacked the required compliance provisions therefore is 

not based on a “‘preference for a different drafting style,’” Association Br. at 44 

(citing Texas v. EPA, 690 F.3d 670, 679 (5th Cir. 2012), but on a straightforward 

application of regulatory requirements designed to ensure the enforceability of SIP 

limits. 

 

Monsanto sulfuric acid plant . . .” ASARCO Hayden Title V Permit – Arizona Air 

Quality Permit No. 1000042 (“Hayden Permit”), Attachment B at 15, § II.A.1, JA 

XX. The Title V permit for the Miami Smelter makes the 0.065 percent NSPS 

limit applicable to emissions from the acid plant, but not the remainder of the 

plant’s emissions. ADEQ Title V Permit 53592 for Miami Smelter (“Miami 

Permit”), Attachment B at 36, § IV.B.1.b, JA XX. As the Association notes, 

Association Br. at 43 n. 13, the relevant terms remain the same in the current Title 

V permit. 

33 See Hayden Permit, Attachment B at 23, § II.F, JA XX; Miami Permit, 

Attachment B at 38, § IV.B.4, JA XX. 

34 Even if the permits were fully enforceable as to the entire facilities, Title V 

permits last only for five years. See 42 U.S.C. § 7661a(b)(5)(B). In addition, 

while EPA has the opportunity to review and object to proposed Title V permits, 

id. § 7661d(b), (e), nothing in the Act requires EPA to approve a Title V permit 

before it can be finalized. Because Title V permits are of limited duration and can 

be modified without EPA approval, they are not permanent and enforceable for 

purposes of establishing BART limitations. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 100 of 132(109 of 141)
86 

VI. EPA REASONABLY DISAPPROVED THE STATE’S PROGRESS 

 GOALS. 

 A regional haze SIP must include, inter alia, “goals (expressed in deciviews) 

that provide reasonable progress towards achieving natural visibility conditions” at 

“each mandatory Class I Federal area located within [a] State.” 40 C.F.R. 

§ 51.308(d)(1); see also 77 Fed. Reg. at 75,710 (discussing reasonable progress 

goals as “[t]he mechanism for ensuring continuing progress towards achieving the 

natural visibility goal”). Contrary to the State’s contention, a reasonable progress 

goal does not merely represent “the degree of visibility improvement that [states] 

believe is reasonable.” State Br. at 50; see also id. at 7 (asserting that “states have 

discretion to determine how much progress is ‘reasonable’”). States must consider 

the rate of progress needed to reach natural visibility conditions by 2064 (the 

“glide path”), as well as the emission reduction measures needed to achieve that 

rate of progress over the planning period of a SIP.35 77 Fed. Reg. at 75,710; 40 

C.F.R. § 51.308(d)(1)(i). If a State’s progress goals provide for a rate of 

improvement that is slower than the glide path, that State must demonstrate why 

those goals remain reasonable and why a rate of progress leading to attainment of 

natural visibility conditions by 2064 is not reasonable. 77 Fed. Reg. at 75,728; 40 

 

35 The first planning period for Regional Haze SIPs began with the baseline period 

of 2000 to 2004, 40 C.F.R. § 51.308(d)(2), and lasts until 2018, 40 C.F.R. 

§ 51.308(f). Subsequent planning periods are ten years each. Id.

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 101 of 132(110 of 141)
87 

C.F.R. § 51.308(d)(1)(ii). This demonstration, in turn, requires the State to 

consider four statutorily-mandated factors: (1) the cost of compliance with 

emission control requirements; (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 source. 42 U.S.C. § 7491(g); 40 

C.F.R. § 51.308(d)(1)(i)(A), (ii); 77 Fed. Reg. at 75,710. 

A. EPA Reasonably Determined That The State Had Not Provided 

 The Required Statutory Analysis. 

 There is no dispute that the progress goals in the State’s 2008 SIP did not 

meet the glide path. State Br. at 11; 78 Fed. Reg. at 46,160. The State was thus 

obligated to demonstrate why those goals were reasonable and the glide path was 

not. 77 Fed. Reg. at 75,728. Based in part on its own supplemental analysis, EPA 

approved the State’s determinations that it was not reasonable to require additional 

controls for certain sources.36 As EPA explained in its 2012 proposal, however, 

the State failed to conduct an adequate analysis of the four statutory factors for 

 

36 See 77 Fed. Reg. at 75,728 (proposing to approve decision not to consider 

control measures for certain pollutants from mobile sources, and proposing to 

agree with state that emissions from fires should not be considered); 75,730 

(proposing, based on EPA supplemental analysis, to approve State’s conclusion 

that it is not reasonable to require additional SO2 controls on certain sources); see 

also 78 Fed. Reg. at 29,297 (proposing to approve State finding that it was not 

reasonable to require additional controls on certain sources based on 2013 

Supplement). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 102 of 132(111 of 141)
88 

certain categories of sources identified by the State as contributing to visibility 

impairment, and thus failed to demonstrate that overall progress goals falling short 

of the glide path were in fact reasonable: 

The State did not complete an adequate analysis of the potential for 

reasonable controls from the area sources of NOX and SO2. While a number 

of source categories are listed in [the SIP], in the case of area sources, the 

state typically judged that it was too resource intensive to conduct the 

analysis. 

77 Fed. Reg. at 75,728. The State similarly failed to provide adequate analysis of 

NOX point sources, finding that such an analysis would require “a major 

investment of resources.” 77 Fed. Reg. at 75,730 (internal quotations omitted). 

EPA thus proposed to disapprove the State’s conclusions that (1) there are no 

reasonable controls for NOX or SO2 on area sources, and (2) there are no 

reasonable controls for point sources of NOX. Id. Because the State had not 

demonstrated that there are no reasonable controls for emissions sources the State 

itself identified as contributing to visibility impairment, EPA proposed to 

disapprove the State’s progress goals. Id.

 Following EPA’s December 2012 proposal, the State submitted the 2013 

Supplement. 78 Fed. Reg. at 29,297. With regard to the four-factor analysis, the 

2013 Supplement was “essentially identical,” adding only a four-factor analysis for 

the Phoenix Cement Company plant. 78 Fed. Reg. at 29,297; see also id. at 29,300 

(“With the exception of [Phoenix Cement], [the State] did not perform a fourCase: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 103 of 132(112 of 141)
89 

factor analysis for any other point source or area source category as part of its 

supplemental SIP”). Most critically, the State had still failed to provide a fourfactor analysis of source categories responsible for the “vast majority” of NOX

emissions – emissions that the State itself had chosen to focus on for the relevant 

planning period. 78 Fed. Reg. at 29,300. EPA thus lacked a sufficient basis to 

change its proposed disapproval of the State’s conclusion that additional controls 

were not reasonable for sources of NOX and SO2 emissions and, hence, of the 

State’s progress goals.37 78 Fed. Reg. at 29,297. 

 The State failed to provide any further analysis, opting instead to fall back 

on the flexibility afforded states under the Act and the Regional Haze Rule. 78 

Fed. Reg. at 46,160. As EPA explained, however, “[w]hile the [Act] and the 

[Regional Haze Rule] do provide considerable flexibility to states in setting 

[reasonable progress goals], they also provide specific requirements that must be 

met in order for the [reasonable progress goals] to be approved.” Id. The State’s 

SIP did not satisfy those requirements: 

In conducting its [reasonable progress] analysis, [the State] elected to focus 

on point and area sources of SO2 and NOX.[] [The State] then identified 

several categories of sources with significant NOX and SO2 emissions.[] 

 

37 EPA did clarify that it was proposing to disapprove the State’s determination 

that additional controls for point sources of NOX and area sources of NOX and SO2

were not reasonable, not proposing to find that such controls are reasonable. 78 

Fed. Reg. at 29,300. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 104 of 132(113 of 141)
90 

However, in most instances, [the State] did not conduct a four-factor 

analysis of sources in these categories. For example, with respect to boilers . 

. . the SIP states, “it is not possible to complete an exhaustive facility-byfacility review to evaluate each unit and therefore no further analysis was 

conducted.”[] Thus, the SIP contains no four-factor analysis of the very 

sources that the State has identified as potentially contributing to visibility 

impairment. 

Id. (emphasis added); see also 2013 Supplement at 49, JA XX (information 

concerning particular source category “cannot be meaningfully adapted for the 

purposes of developing a four-factor analysis,” and “no further analysis was 

conducted”), 50, JA XX (because State could not analyze particular source 

category unit-by-unit, “no further analysis was conducted”). 

 The administrative record thus flatly contradicts the State’s repeated 

assertion that EPA disapproved the State’s progress goals because the State did not 

conduct a “unit-by-unit” four-factor analysis. See State Br. at 13-14, 16, 50, 54-57, 

60-61. The problem was not that the State did not do a four-factor analysis for 

individual emission units – rather, it was that the State failed to provide a fourfactor analysis for the very sources and source categories the State itself identified 

as potential contributors to visibility impairment. EPA only mentions a unitspecific analysis in the context of discussing the State’s conclusion that because 

the State could not “evaluate each unit,” “no further analysis was conducted.” 78 

Fed. Reg. at 46,160 (quoting Arizona Regional Haze SIP § 11.3.3). 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 105 of 132(114 of 141)
91 

 The State claims that EPA “failed to note that this statement was made in the 

context of the State’s discussion of the lack of data to conduct a unit-by-unit 

analysis.” State Br. at 56. The State’s reasoning appears to be (1) the State said 

that it lacked data to conduct a unit-by-unit analysis; (2) EPA disapproved the 

State’s progress goals; (3) therefore, EPA must have disapproved the State’s 

progress goals based on the lack of a unit-by-unit analysis. The State cannot, 

however, twist its own decision to forego further analysis into the basis for EPA’s 

action. 

 The State’s argument that neither the Act nor the Regional Haze Rule 

requires a unit by unit analysis, State Br. at 54-55, 57, is thus beside the point – 

what is required, and what the State failed to provide, is an adequate analysis of 

each of the four reasonable progress factors. The fact that States have flexibility in 

considering these factors, State Br. at 55, does not mean that they are free to omit a 

four-factor analysis entirely or to limit that analysis to a single source. The State’s 

assertion that it “did provide a four-factor analysis,” State Br. at 57, is unsupported 

by any citation to the record. To the extent that the State refers to the four-factor 

analysis of the Phoenix Cement Company plant, an analysis of a single source is 

insufficient to justify the State’s progress goals. In addition, as discussed in the 

next subsection, that analysis was significantly flawed. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 106 of 132(115 of 141)
92 

 The State has also failed to support its claim that its initial submission 

provided a “complete justification” for its progress goals. See State Br. at 52, 57. 

The “Affirmative Demonstration of the RPGs” cited by the State consists of four 

paragraphs – only one of which addresses the required four factor analysis. 2011 

SIP at 168, JA XX. That paragraph, entitled “Findings from the four-factor 

analysis” states: 

This analysis was conducted as required under Section 308 

(d)(1)(i)(A). Based on the general level of this review of major source 

categories, [the State] has determined it is not reasonable to control 

additional source categories and has identified a schedule for a more 

in-depth evaluation of individual sources and additional control 

measures as part of the long-term strategy (LTS) in Chapter 12 of this 

plan. This evaluation will be completed by the next SIP submittal in 

2016 and will contain a timetable for installation of controls for 

subject sources, if applicable. 

Id. The State thus freely acknowledged that it had conducted only a “general 

level” of review and that a “more in-depth evaluation of individual sources and 

additional control measures” was necessary. Id. The State’s recognition that 

further analysis is required, and its commitment to conduct such an evaluation in 

the future, does not fulfill the requirement for the State to justify its progress goals 

for this planning period based upon the four statutory factors. 78 Fed. Reg. at 

46,172; 40 C.F.R. § 51.308(d)(1)(ii). 

 Nor can the State use other provisions of the Act to avoid its obligation 

under the Act and the Regional Haze Rule to conduct a four-factor analysis. See

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 107 of 132(116 of 141)
93 

State Br. at 57-59. The “potentially applicable” statutory and regulatory 

requirements the State points to apply in the abstract to source categories that the 

State identified as contributing to visibility impairment – however, the State failed 

to consider whether these statutes and regulations impose any concrete 

requirements on specific sources within those categories and, if so, whether they 

will actually result in any reductions in NOX.

38 The State may consider emission 

reductions achieved through other provisions of the Act in setting its reasonable 

progress goals, but it must do so in the context of the required four-factor analysis, 

and it must consider whether those reductions will actually occur, not merely rest 

on the fact that they are theoretically possible. 

B. EPA Reasonably Concluded That The State’s Four-Factor 

 Analysis Of Phoenix Cement Was Insufficient To Demonstrate 

 That No Additional Controls Were Reasonable. 

 In an effort to support its progress goals, the State included a four-factor 

analysis of Phoenix Cement in the 2013 Supplement. EPA proposed to disapprove 

the State’s conclusion that additional controls at Phoenix Cement were not 

warranted, explaining that the State’s assessment of the cost of compliance and the 

 

38 It is far from clear that any of the requirements cited by the State in its SIP will 

result in additional reductions in NOX emissions. The NSPS apply only to new or 

modified sources. See 42 U.S.C. § 7411(a),(b). Section 112 standards address 

hazardous air pollutants, and are not intended to reduce NOX at all. See 42 U.S.C. 

§ 7412. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 108 of 132(117 of 141)
94 

potential visibility benefits of controls were not supported by the underlying data. 

78 Fed. Reg. at 29,299-300. With regard to the costs of compliance in particular, 

the 2013 Supplement “contain[ed] no explanation or documentation of how [the 

State] calculated these costs, but they appear to derive exclusively from [Phoenix 

Cement’s] own cost calculations.” Id. at 29,299. Phoenix Cement’s analysis, in 

turn, “includes certain assumptions which are unsupported and inconsistent with 

EPA’s Control Cost Manual.”39 Id. at 29,300. Most prominently, that analysis 

assumed a much shorter lifetime for control equipment than provided for in the 

Control Cost Manual, thus “significantly overstating the annualized cost” of 

potential controls. Id. Nor did either Phoenix Cement or the State provide any 

analysis of cost-effectiveness, which is the recommended cost metric for a 

reasonable progress analysis. Id.

 In response to comments on its proposed disapproval, EPA confirmed that 

the Control Cost Manual is not binding for purposes of a reasonable progress 

analysis; however, it (as well as the BART Guidelines and Agency guidance) 

remains “relevant to [EPA’s] evaluation of whether the State’s four-factor analysis 

 

39 The Control Cost Manual provides “guidance to industry and regulatory 

authorities for the development of accurate and consistent costs . . . for air 

pollution control devices,” as well as “a standardized and peer reviewed costing 

methodology by which all air pollution control costing analyses can be 

performed.” See Control Cost Manual, Section 1.2, JA XX. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 109 of 132(118 of 141)
95 

was reasonable.” 78 Fed. Reg. at 46,170. EPA went on to explain that, by 

deviating from the recommendations in the Control Cost Manual “without any 

explanation or support,” Phoenix Cement produced an analysis that “effectively 

inflated the annualized cost of [control technology].” Id. Most critically, however, 

the State had failed to explain why Phoenix Cement’s assumptions were 

reasonable: 

[C]ontrary to [the State’s] suggestion, EPA is not insisting that [the State] 

employ EPA’s own cost analysis in lieu of PCC’s. Rather, we are finding 

that [the State] did not independently evaluate PCC’s analysis to determine 

whether its assumptions were reasonable and supported by appropriate 

documentation. 

Id. 

 Phoenix Cement challenges EPA’s disapproval of the State’s conclusion that 

it was not reasonable to require additional controls at Phoenix Cement. See

Phoenix Cement Br. at 17-22. Initially, it is important to note that, as discussed in 

the preceding subsection, EPA’s disapproval of the State’s progress goals was “not 

based solely on the shortcomings of [the State’s] analysis for the Phoenix Cement 

Plant, but rather on the overall inadequacy of the analysis for the categories of NOX

point sources that [the State] had identified as contributing to visibility impairment 

at the State’s Class I areas.” 78 Fed. Reg. at 46,170. To the extent that EPA found 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 110 of 132(119 of 141)
96 

the State’s analysis with respect to Phoenix Cement inadequate, however, that 

finding was reasonable and supported by the administrative record.40

 Contrary to Phoenix Cement’s claims, see Phoenix Cement Br. at 20, EPA 

was not required to demonstrate that the State’s four-factor analysis was 

inadequate in all respects. Under the Act and the Regional Haze Rule, the State 

must provide an adequate analysis of all of the mandatory factors – two or three 

out of four is not good enough. Certainly, the State has considerable discretion to 

balance the statutory factors against one another (provided that it explains its basis 

for doing so); however, that discretion does not obviate the requirement that the 

State first analyze each of those factors. See 40 C.F.R. § 51.308(d) (to meet core 

requirements for regional haze, SIP must include analysis of reasonable progress 

factors and supporting documentation for all required analyses). EPA’s conclusion 

that the State failed to adequately analyze the cost of compliance at Phoenix 

Cement was thus a sufficient basis for disapproval.41 

 

40 Phoenix Cement points to an allegedly defective EPA analysis. Phoenix Cement 

Br. at 7-8. As EPA explained in the Rule, this draft analysis is neither complete 

nor final; was provided to Phoenix Cement precisely in order to identify any 

alleged errors; and was not used as a basis for the actions in the Rule. See 78 Fed. 

Reg. at 46,164. 

41 That it was a sufficient basis does not mean that it was the only basis. EPA also 

found the State’s analysis of the time necessary for compliance flawed, in that the 

State had relied on projected visibility improvements that the State itself later 

acknowledged were inaccurate. See 78 Fed. Reg. at 29,300. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 111 of 132(120 of 141)
97 

 Nor did EPA “eschew[] the facts in the record,” Phoenix Cement Br. at 20, 

by pointing out that it was unreasonable to assume that emission controls installed 

at Phoenix Cement would only operate for 10 years – an assumption that, as noted 

above, had the effect of inflating the calculation of the cost of compliance. The 

record demonstrates that Phoenix Cement is anticipated to operate for 50 more 

years, and EPA’s Control Cost Manual states that the control system at issue 

typically has a lifetime of 20 years. 78 Fed. Reg. at 46,170. Neither Phoenix 

Cement nor the State provided any explanation for assuming that the controls at 

issue would only operate for 10 years.42

 Phoenix Cement has, moreover, failed to support its assertion that EPA’s 

statements concerning its basis for disapproving the State’s determinations 

regarding Phoenix Cement in particular, and the State’s progress goals in general, 

were somehow “pretextual.” Phoenix Cement Br. at 22; see also id. at 12 What 

Phoenix Cement dismisses as “random complaints,” id. at 22, are what EPA found 

to be significant deficiencies in the analysis required by the Act and the Regional 

 

42Phoenix Cement’s argument concerning EPA’s use of the Control Cost Manual, 

Phoenix Cement Br. at 21-23, is decidedly opaque. Phoenix Cement’s repeated 

references to Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) suggest, 

however, that Phoenix Cement’s central point is that the Control Cost Manual is 

not binding. See Iowa League, 711 F.3d at 862-63 (considering whether agency 

document was binding rule or nonbinding guidance). As noted supra at 94, there is 

no dispute on this point. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 112 of 132(121 of 141)
98 

Haze Rule. Phoenix Cement has offered nothing to demonstrate that this finding 

was flawed. The claim that the State does “not have to write an exegesis on every 

contention” to demonstrate that its progress goals are reasonable is based on a 

citation to an entirely inapposite case and ignores the explicit statutory and 

regulatory structure governing state reasonable progress analyses. See Phoenix 

Cement Br. at 23 (citing Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) 

(discussing standard of review Court of Appeals applies to findings by Board of 

Immigration Appeals); compare supra at 10-11, 86-87 (discussing statute and 

regulations governing reasonable progress determinations). Nor did EPA 

disapprove the State’s findings simply because the State relied on “expert technical 

reports,” Phoenix Cement Br. at 23; rather, it did so because the State failed to 

demonstrate that it had exercised any independent judgment in assessing whether 

those reports were reasonable. See 78 Fed. Reg. at 46,170. Finally, Phoenix 

Cement’s claim that EPA has somehow failed to explain its decision, Phoenix 

Cement Br. at 24, is flatly inconsistent with the administrative record. See 78 Fed. 

Reg. at 29,299-300; 78 Fed. Reg. at 46,170. 

C. EPA Reasonably Concluded That The 2013 Supplement Did Not 

 Establish That The State Would Meet The Glide Path. 

 The State’s contention that EPA erred in determining that the 2013 

Supplement did not demonstrate that the State’s progress goals would, in fact, meet 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 113 of 132(122 of 141)
99 

the glide path in some Class I areas, see State Br. at 59-60, finds no support in the 

administrative record. The glide path is inherently forward-looking – the question 

is whether emission reductions required by the State’s plan will meet visibility 

goals by 2064. The State, however, looked backward. The 2013 Supplement 

considered air quality monitoring trends over the past several years, but included 

no modeling of future conditions. See generally 2013 Supplement at 56-95, JA 

XX-XX. As EPA explained, the past data that the State considered was not 

sufficient to demonstrate that the State would meet the glide path in some areas. 

Although that data did show improving air quality in the past, improvements “[did] 

not appear to be significant, given the normal year-to-year variations that one 

would expect in monitored visibility levels.” 78 Fed. Reg. at 29,299. Moreover, 

EPA explained that the 2013 Supplement “does not provide any analysis that 

indicates that these trends will continue through 2018.” 78 Fed. Reg. at 46,168. 

 The State now asserts, without any basis in the record, that “with new air 

quality regulations incorporated into Arizona’s long-term visibility-improvement 

strategy, this trend could be expected to accelerate.” State Br. at 53; see also id. at 

12. Notably, the State did not make this claim in its SIP, and the provisions of the 

2013 Supplement that the State now cites do not support this claim. The State 

points to an analysis of potential controls that the State says it will conduct at some 

point in the future. State Br. at 53; 2013 Supplement at 97, JA XX. A speculative 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 114 of 132(123 of 141)
100 

analysis of possible future controls does not, however, qualify as an air quality 

regulation that can be relied upon to ensure future emission reductions. The State 

also cites to page 47 of the 2013 Supplement (see JA XX) as well as Chapter 9 of 

its 2011 SIP (see JA XX). State Br. at 53 n.10. These sections, however, describe 

future emission reductions that were already factored into the State’s existing 

progress goals because they were “on the books” at the time that the modeling 

underlying those goals was performed in 2006-2009. See 2013 Supplement at 55, 

JA XX (State’s progress goals were based on, inter alia, “the results of the 

Community Multiscale Air Quality (CMAQ) modeling”); 2011 SIP Chapter 9 at 

79, JA XX (listing control measures that were factored into the CMAQ modeling), 

81, JA XX (visibility conditions projected by CMAQ modeling were used to define 

the State’s progress goals), Appendix C at 5, JA XX (overview of emissions 

included in the CMAQ modeling). The State now seeks to improperly double 

count those reductions by suggesting that they will result in further progress 

beyond that reflected in the State’s existing progress goals. Such double counting 

is not appropriate, and in any event does not demonstrate that the State will meet 

the glide path. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 115 of 132(124 of 141)
101 

CONCLUSION

 For the foregoing reasons, the petitions for review should be denied. 

Respectfully submitted, ROBERT G. DREHER 

Acting Assistant Attorney General 

/s Angeline Purdy 

__________________________ 

ANGELINE PURDY 

Environmental Defense Section 

Environment & Natural Resources 

 Division 

United States Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044 

(202) 514-0996 (Purdy) 

Counsel for Respondents

Of Counsel: 

CHARLOTTE WITHEY 

U.S. Environmental Protection Agency, Region IX 

Office of Regional Counsel 

M. LEA ANDERSON 

MATTHEW C. MARKS 

U.S. Environmental Protection Agency 

Office of General Counsel 

April 18, 2014 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 116 of 132(125 of 141)
102 

STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, EPA states that it is not aware of any 

related cases other than those identified in Petitioners’ opening briefs. 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 117 of 132(126 of 141)
103 

RESPONDENTS’ CERTIFICATE CONCERNING 

WORD LIMITATION AND TYPEFACE REQUIREMENTS 

 I hereby certify that this brief is accompanied by an unopposed motion for 

leave to file an oversize brief pursuant to Circuit Rule 32-2 and contains 24,288 

words, as counted by Microsoft Word, excluding the signature block and the parts 

of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with 

the typeface and type style requirements of Fed. R. App. P. 32(a)(5) and 32(a)(6) 

because it has been prepared in a proportionally spaced typeface using Microsoft 

Word in Times New Roman 14-point type. 

DATED: April 18, 2014 /s/ Angeline Purdy

 Counsel for Respondents 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 118 of 132(127 of 141)
104 

CERTIFICATE OF SERVICE 

 I hereby certify that copies of the foregoing Brief of Respondent EPA, under 

cover of the accompanying Unopposed Motion For Enlargement Of Brief Size, 

have been served through the Court’s CM/ECF system on all registered counsel 

this 18th day of April, 2014. 

DATED: April 18, 2014 /s/ Angeline Purdy

 Counsel for Respondents 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 119 of 132(128 of 141)
ADDENDUM 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 120 of 132(129 of 141)
[1]

TABLE OF CONTENTS 

STATUTES 

42 U.S.C. § 7410(a)(2)(J),(c)(1) ...................................................................... ADD 1 

42 U.S.C. § 7475(a),(d)(2)(A)-(B) ................................................................... ADD 5 

CODE OF FEDERAL REGULATIONS 

40 C.F.R. § 51.300 ........................................................................................... ADD 7 

40 C.F.R. § 51.308(d) ...................................................................................... ADD 8 

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 121 of 132(130 of 141)
TITLE 42-THE PUBLIC HEALTH AND WELFARE

ambient air quality standards and revisions of

existing criteria and standards as may be appropriate under section 7408 of this title and subsection (b) of this section.

(C) Such committee shall also (i) advise the

Administrator of areas in which additional

knowledge is required to appraise the adequacy

and basis of existing, new, or revised national

ambient air quality standards, (ii) describe the

research efforts necessary to provide the required information, (iii) advise the Administrator on the relative contribution to air pollution concentrations of natural as well as anthropogenic activity, and (iv) advise* the Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and

maintenance of such national ambient air quality standards.

(July 14, 1955, ch. 360, title I, § 109, as added Pub.

L. 91-604, §4(a), Dec. 31, 1970, 84 Stat. 1679;

amended Pub. L. 95-95, title I, § 106, Aug. 7, 1977,

91 Stat. 691.)

CODIFICATION

Section was formerly classified to section 1857c-4 of

this title.

PRIOR PROVISIONS

A prior section 109 of act July 14, 1955, was renumbered section 116 by Pub. L. 91-604 and is classified to

section 7416 of this title.

AMENDMENTS

1977-Subsec. (c). Pub. L. 95-95, § 106(b), added subsec.

(c).

Subsec. (d). Pub. L. 95-95, § 106(a), added subsec. (d).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95-95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant to act July 14, 1955, the Clean Air Act, as in effect

immediately prior to the date of enactment of Pub. L.

95-95 [Aug. 7, 1977] to continue in full force and effect

until modified or rescinded in accordance with act July

14, 1955, as amended by Pub. L. 95-95 [this chapter], see

section 406(b) of Pub. L. 95-95, set out as an Effective

Date of 1977 Amendment note under section 7401 of this

title.

TERMINATION OF ADVISORY COMMITTEES

Advisory committees established after Jan. 5, 1973, to

terminate not later than the expiration of the 2-year

period beginning on the date of their establishment,

unless, in the case of a committee established by the

President or an officer of the Federal Government, such

committee is renewed by appropriate action prior to

the expiration of such 2-year period, or in the case of

a committee established by the Congress, its duration

is otherwise provided for by law. See section 14 of Pub.

L. 92-463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to Title 5, Government Organization and Employees.

ROLE OF SECONDARY STANDARDS

Pub. L. 101-549, title VKIf, §817, Nov. 15, 1990, 104 Stat.

2697, provided that:

"(a) REPORT.-The Administrator shall request the

National Academy of Sciences to prepare a report to

the Congress on the role of national secondary ambient

air quality standards in protecting welfare and the environment. The report shall:

"(1) include information on the effects on welfare

and the environment which are caused by ambient

concentrations of pollutants listed pursuant to section 108 [42 U.S.C. 7408] and other pollutants which

may be listed;

"(2) estimate welfare and environmental costs incurred as a result of such effects:

"(3) examine the role of secondary standards and

the State implementation planning process in preventing such effects;

"(4) determine ambient concentrations of each such

pollutant which would be adequate to protect welfare

and the environment from such effects;

"(5) estimate the costs and other impacts of meeting secondary standards; and

"(6) consider other means consistent with the goals

and objectives of the Clean Air Act [42 U.S.C. 7401 et

seq.] which may be more effective than secondary

standards in preventing or mitigating such effects.

"(b) SUBMISSION TO CONGRESS: COMMENTS; AUTHORIZATION.-(1) The report shall be transmitted to the Congress not later than 3 years after the date of enactment

of the Clean Air Act Amendments of 1990 [Nov. 15, 1990].

"(2) At least 90 days before issuing a report the Administrator shall provide an opportunity for public

comment on the proposed report. The Administrator

shall include in the final report a summary of the comments received on the proposed report.

"(3) There are authorized to be appropriated such sums as are necessary to carry out this section."

§ 7410. State implementation plans for national

primary and secondary ambient air quality

standards

(a) Adoption of plan by State; submission to Administrator; content of plan; revision; new

sources; indirect source review program;

supplemental or intermittent control systems

(1) Each State shall, after reasonable notice

and public hearings, adopt and submit to the Administrator, within 3 years (or such shorter period as the Administrator may prescribe) after

the promulgation of a national primary ambient

air quality standard (or any revision thereof)

under section 7409 of this title for any air pollutant, a plan which provides for implementation,

maintenance, and enforcement of such primary

standard in each air quality control region (or

portion thereof) within such State. In addition,

such State shall adopt and submit to the Administrator (either as a part of a plan submitted

under the preceding sentence or separately)

within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national ambient air quality secondary

standard (or revision thereof), a plan which provides for implementation, maintenance, and enforcement of such secondary standard in each

air quality control region (or portion thereof)

within such State. Unless a separate public

hearing is provided, each State shall consider its

plan implementing such secondary standard at

the hearing required by the first sentence of this

paragraph.

(2) Each implementation plan submitted by a

State under this chapter shall be adopted by the

State after reasonable notice and public hearing. Each such plan shall-

(A) include enforceable emission limitations

and other control measures, means, or tech-

§ 7410 Page 904

ADD1

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 122 of 132(131 of 141)
TITLE 42-THE PUBLIC HEALTH AND WELFARE

niques (including economic incentives such as

fees, marketable permits, and auctions of

emissions rights), as well as schedules and

timetables for compliance, as may be necessary or appropriate to meet the applicable

requirements of this chapter;

(B) provide for establishment and operation

of appropriate devices, methods, systems, and

procedures necessary to-

(i) monitor, compile, and analyze data on

ambient air quality, and

(ii) upon request, make such data available

to the Administrator;

(C) include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source

within the areas covered by the plan as necessary to assure that national ambient air

quality standards are achieved, including a

permit program as required in parts C and D of

this subchapter;

(D) contain adequate provisions-

(i) prohibiting, consistent with the provisions of this subchapter, any source or other

type of emissions activity within the State

from emitting any air pollutant in amounts

which will-

(I) contribute significantly to nonattainment in, or interfere with maintenance by,

any other State with respect to any such

national primary or secondary ambient air

quality standard, or

(II) interfere with measures required to

be included in the applicable implementation plan for any other State under part C

of this subchapter to prevent significant

deterioration of air quality or to protect

visibility,

(ii) insuring compliance with the applicable requirements of sections 7426 and 7415 of

this title (relating to interstate and international pollution abatement);

(E) provide (i) necessary assurances that the

State (or, except where the Administrator

deems inappropriate, the general purpose local

government or governments, or a regional

agency designated by the State or general purpose local governments for such purpose) will

have adequate personnel, funding, and authority under State (and, as appropriate, local) law

to carry out such implementation plan (and is

not prohibited by any provision of Federal or

State law from carrying out such implementation plan or portion thereof), (ii) requirements

that the State comply with the requirements

respecting State boards under section 7428 of

this title, and (iii) necessary assurances that,

where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring

adequate implementation of such plan provision;

(F) require. as may be prescribed by the Administrator-

(i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or

operators of stationary sources to monitor

emissions from such sources,

(ii) periodic reports on the nature and

amounts of emissions and emissions-related

data from such sources, and

(iii) correlation of such reports by the

State agency with any emission limitations

or standards established pursuant to this

chapter, which reports shall be available at

reasonable times for public inspection;

(G) provide for authority comparable to that

in section 7603 of this title and adequate contingency plans to implement such authority;

(H) provide for revision of such plan-

(i) from time to time as may be necessary

to take account of revisions of such national

primary or secondary ambient air quality

standard or the availability of improved or

more expeditious methods of attaining such

standard, and

(ii) except as provided in paragraph (3)(C),

whenever the Administrator finds on the

basis of information available to the Administrator that the plan is substantially inadequate to attain the national ambient air

quality standard which it implements or to

otherwise comply with any additional requirements established under this chapter;

(I) in the case of a plan or plan revision for

an area designated as a nonattainment area,

meet the applicable requirements of part D of

this subchapter (relating to nonattainment

areas);

(J) meet the applicable requirements of section 7421 of this title (relating to consultation), section 7427 of this title (relating to public notification), and part C of this subchapter

(relating to prevention of significant deterioration of air quality and visibility protection);

(K) provide for-

(i) the performance of such air quality

modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions

of any air pollutant for which the Administrator has established a national ambient

air quality standard, and

(ii) the submission, upon request, of data

related to such air quality modeling to the

Administrator;

(L) require the owner or operator of each

major stationary source to pay to the permitting authority, as a condition of any permit

required under this chapter, a fee sufficient to

cover-

(i) the reasonable costs of reviewing and

acting upon any application for such a permit, and

(ii) if the owner or operator receives a permit for such source, the reasonable costs of

implementing and enforcing the terms and

conditions of any such permit (not including

any court costs or other costs associated

with any enforcement action),

until such fee requirement is superseded with

respect to such sources by the Administrator's

approval of a fee program under subchapter V

of this chapter; and

(M) provide for consultation and participation by local political subdivisions affected by

the plan.

Page 905 § 7410

ADD2

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 123 of 132(132 of 141)
TITLE 42-THE PUBLIC HEALTH AND WELFARE

(3)(A) Repealed. Pub. L. 101-549, title I,

§101(d)(1), Nov. 15, 1990, 104 Stat. 2409.

(B) As soon as practicable, the Administrator

shall, consistent with the purposes of this chapter and the Energy Supply and Environmental

Coordination Act of 1974 [15 U.S.C. 791 et seq.],

review each State's applicable implementation

plans and report to the State on whether such

plans can be revised in relation to fuel burning

stationary sources (or persons supplying fuel to

such sources) without interfering with the attainment and maintenance of any national ambient air quality standard within the period permitted in this section. If the Administrator determines that any such plan can be revised, he

shall notify the State that a plan revision may

be submitted by the State. Any plan revision

which is submitted by the State shall, after public notice and opportunity for public hearing, be

approved by the Administrator if the revision

relates only to fuel burning stationary sources

(or persons supplying fuel to such sources), and

the plan as revised complies with paragraph (2)

of this subsection. The Administrator shall approve or disapprove any revision no later than

three months after its submission.

(C) Neither the State, in the case of a plan (or

portion thereof) approved under this subsection,

nor the Administrator, in the case of a plan (or

portion thereof) promulgated under subsection

(c) of this section, shall be required to revise an

applicable implementation plan because one or

more exemptions under section 7418 of this title

(relating to Federal facilities), enforcement orders under section 7413(d) 1 of this title, suspensions under subsection (f) or (g) of this section

(relating to temporary energy or economic authority), orders under section 7419 of this title

(relating to primary nonferrous smelters), or extensions of compliance in decrees entered under

section 7413(e) 1 of this title (relating to ironand steel-producing operations) have been granted, if such plan would have met the requirements of this section if no such exemptions, orders, or extensions had been granted.

(4) Repealed. Pub. L. 101-549, title I, §101(d)(2),

Nov. 15, 1990, 104 Stat. 2409.

(5)(A)(i) Any State may include in a State implementation plan, but the Administrator may

not require as a condition of approval of such

plan under this section, any indirect source review program. The Administrator may approve

and enforce, as part of an applicable implementation plan, an indirect source review program

which the State chooses to adopt and submit as

part of its plan.

(ii) Except as provided in subparagraph (B), no

plan promulgated by the Administrator shall include any indirect source review program for

any air quality control region, or portion thereof.

(iii) Any State may revise an applicable implementation plan approved under this subsection

to suspend or revoke any such program included

in such plan, provided that such plan meets the

requirements of this section.

(B) The Administrator shall have the authority to promulgate, implement and enforce regulations under subsection (c) of this section re-

' See References in Text note below.

specting indirect source review programs which

apply only to federally assisted highways, airports, and other major federally assisted indirect sources and federally owned or operated indirect sources.

(C) For purposes of this paragraph, the term

"indirect source" means a facility, building,

structure, installation, real property, road, or

highway which attracts, or may attract, mobile

sources of pollution. Such term includes parking

lots, parking garages, and other facilities subject to any measure for management of parking

supply (within the meaning of subsection

(c)(2)(D)(ii) of this section), including regulation

of existing off-street parking but such term does

not include new or existing on-street parking.

Direct emissions sources or facilities at, within,

or associated with, any indirect source shall not

be deemed indirect sources for the purpose of

this paragraph.

(D) For purposes of this paragraph the term

"indirect source review program" means the facility-by-facility review of indirect sources of

air pollution, including such measures as are

necessary to assure, or assist in assuring, that a

new or modified indirect source will not attract

mobile sources of air pollution, the emissions

from which would cause or contribute to air pollution concentrations-

(i) exceeding any national primary ambient

air quality standard for a mobile source-related air pollutant after the primary standard attainment date, or

(ii) preventing maintenance of any such

standard after such date.

(E) For purposes of this paragraph and paragraph (2)(B), the term "transportation control

measure" does not include any measure which is

an "indirect source review program".

(6) No State plan shall be treated as meeting

the requirements of this section unless such

plan provides that in the case of any source

which uses a supplemental, or intermittent control system for purposes of meeting the requirements of an order under section 7413(d)1 of this

title or section 7419 of this title (relating to primary nonferrous smelter orders), the owner or

operator of such source may not temporarily reduce the pay of any employee by reason of the

use of such supplemental or intermittent or

other dispersion dependent control system.

(b) Extension of period for submission of plans

The Administrator may, wherever he determines necessary, extend the period for submission of any plan or portion thereof which implements a national secondary ambient air quality

standard for a period not to exceed 18 months

from the date otherwise required for submission

of such plan.

(c) Preparation and publication by Administrator of proposed regulations setting forth

implementation plan; transportation regulations study and report; parking surcharge;

suspension authority; plan implementation

(1) The Administrator shall promulgate a Federal implementation plan at any time within 2

years after the Administrator-

(A) finds that a State has failed to make a

required submission or finds that the plan or

§ 7410 Page 906

ADD3

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 124 of 132(133 of 141)
TITLE 42-THE PUBLIC HEALTH AND WELFARE

plan revision submitted by the State does not

satisfy the minimum criteria established

under subsection (k)(1)(A) of this section, or

(B) disapproves a State implementation plan

submission in whole or in part,

unless the State corrects the deficiency, and the

Administrator approves the plan or plan revision, before the Administrator promulgates such

Federal implementation plan.

(2)(A) Repealed. Pub. L. 101-549, title I,

§101(d)(3)(A), Nov. 15, 1990, 104 Stat. 2409.

(B) No parking surcharge regulation may be

required by the Administrator under paragraph

(1) of this subsection as a part of an applicable

implementation plan. All parking surcharge regulations previously required by the Administrator shall be void upon June 22, 1974. This subparagraph shall not prevent the Administrator

from approving parking surcharges if they are

adopted and submitted by a State as part of an

applicable implementation plan. The Administrator may not condition approval of any implementation plan submitted by a State on such

plan's including a parking surcharge regulation.

(C) Repealed. Pub. L. 101-549, title I,

§ 101(d)(3)(B), Nov. 15, 1990, 104 Stat. 2409.

(D) For purposes of this paragraph-

(i) The term "parking surcharge regulation"

means a regulation imposing or requiring the

imposition of any tax, surcharge, fee, or other

charge on parking spaces, or any other area

used for the temporary storage of motor vehicles.

(ii) The term "management of parking supply" shall include any requirement providing

that any new facility containing a given number of parking spaces shall receive a permit or

other prior approval, issuance of which is to be

conditioned on air quality considerations.

(iii) The term "preferential bus/carpool

lane" shall include any requirement for the

setting aside of one or more lanes of a street

or highway on a permanent or temporary basis

for the exclusive use of buses or carpools, or

both.

(E) No standard, plan, or requirement, relating

to management of parking supply or preferential bus/carpool lanes shall be promulgated

after June 22, 1974, by the Administrator pursuant to this section, unless such promulgation

has been subjected to at least one public hearing

which has been held in the area affected and for

which reasonable notice has been given in such

area. If substantial changes are made following

public hearings, one or more additional hearings

shall be held in such area after such notice.

(3) Upon application of the chief executive officer of any general purpose unit of local government, if the Administrator determines that such

unit has adequate authority under State or local

law, the Administrator may delegate to such

unit the authority to implement and enforce

within the jurisdiction of such unit any part of

a plan promulgated under this subsection. Nothing in this paragraph shall prevent the Administrator from implementing or enforcing any applicable provision of a plan promulgated under

this subsection.

(4) Repealed. Pub. L. 101-549, title I,

§ 101(d)(3)(C), Nov. 15, 1990, 104 Stat. 2409.

(5)(A) Any measure in an applicable implementation plan which requires a toll or other charge

for the use of a bridge located entirely within

one city shall be eliminated from such plan by

the Administrator upon application by the Governor of the State, which application shall include a certification by the Governor that he

will revise such plan in accordance with subparagraph (B).

(B) In the case of any applicable implementation plan with respect to which a measure has

been eliminated under subparagraph (A), such

plan shall, not later than one year after August

7, 1977, be revised to include comprehensive

measures to:

(i) establish, expand. or improve public

transportation measures to meet basic transportation needs, as expeditiously as is practicable; and

(ii) implement transportation control measures necessary to attain and maintain national ambient air quality standards,

and such revised plan shall, for the purpose of

implementing such comprehensive public transportation measures, include requirements to use

(insofar as is necessary) Federal grants, State or

local funds, or any combination of such grants

and funds as may be consistent with the terms

of the legislation providing such grants and

funds. Such measures shall, as a substitute for

the tolls or charges eliminated under subparagraph (A), provide for emissions reductions

equivalent to the reductions which may reasonably be expected to be achieved through the use

of the tolls or charges eliminated.

(C) Any revision of an implementation plan for

purposes of meeting the" requirements of subparagraph (B) shall be submitted in coordination

with any plan revision required under part D of

this subchapter.

(d), (e) Repealed. Pub. L. 101-549, title I,

§ 101(d)(4), (5), Nov. 15, 1990, 104 Stat. 2409

(f) National or regional energy emergencies; determination by President

(1) Upon application by the owner or operator

of a fuel burning stationary source, and after notice and opportunity for public hearing, the

Governor of the State in which such source is located may petition the President to determine

that a national or regional energy emergency

exists of such severity that-

(A) a temporary suspension of any part of

the applicable implementation plan or of any

requirement under section 7651j of this title

(concerning excess emissions penalties or offsets) may be necessary, and

(B) other means of responding to the energy

emergency may be inadequate.

Such determination shall not be delegable by

the President to any other person. If the President determines that a national or regional energy emergency of such severity exists, a temporary emergency suspension of any part of an

applicable implementation plan or of any requirement under section 7651j of this title (concerning excess emissions penalties or offsets)

adopted by the State may be issued by the Governor of any State covered by the President's

Page 907 § 7410

ADD4

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 125 of 132(134 of 141)
TITLE 42-THE PUBLIC HEALTH AND WELFARE

within one year after August 7, 1977. The Federal

Land Manager shall consult with the appropriate States before making such recommendations.

(e) Resolution of disputes between State and Indian tribes

If any State affected by the redesignation of

an area by an Indian tribe or any Indian tribe affected by the redesignation of an area by a State

disagrees with such redesignation of any area, or

if a permit is proposed to be issued for any new

major emitting facility proposed for construction in any State which the Governor of an affected State or governing body of an affected Indian tribe determines will cause or contribute to

a cumulative change in air quality in excess of

that allowed in this part within the affected

State or tribal reservation, the Governor or Indian ruling body may request the Administrator

to enter into negotiations with the parties involved to resolve such dispute. If requested by

any State or Indian tribe involved, the Administrator shall make a recommendation to resolve

the dispute and protect the air quality related

values of the lands involved. If the parties involved do not reach agreement, the Administrator shall resolve the dispute and his determination, or the results of agreements reached

through other means, shall become part of the

applicable plan and shall be enforceable as part

of such plan. In resolving such disputes relating

to area redesignation, the Administrator shall

consider the extent to which the lands involved

are of sufficient size to allow effective air quality management or have air quality related values of such an area.

(July 14, 1955, ch. 360, title I, § 164, as added Pub.

L. 95-95, title I, § 127(a), Aug. 7, 1977, 91 Stat. 733;

amended Pub. L. 95-190, §14(a)(42), (43), Nov. 16,

1977, 91 Stat. 1402; Pub. L. 101-549, title I, § 108(n),

Nov. 15, 1990, 104 Stat. 2469.)

AMENDMENTS

1990-Subsec. (a). Pub. L. 101-549, which directed the

insertion of "The extent of the areas referred to in

paragraph (1) and (2) shall conform to any changes in

the boundaries of such areas which have occurred subsequent to August 7, 1977, or which may occur subsequent to November 15, 1990." before "Any area (other

than an area referred to in paragraph (1) or (2))", was executed by making the insertion before "Any area

(other than an area referred to in paragraph (1) or (2)",

to reflect the probable intent of Congress.

1977-Subsec. (b)(2). Pub. L. 95-190, § 14(a)(42), inserted

"or is inconsistent with the requirements of section

7472(a) of this title or of subsection (a) of this section"

after "this section".

Subsec. (e). Pub. L. 95-190, §14(a)(43), inserted "an"

after "If any State affected by the redesignation of".

§ 7475. Preconstruction requirements

(a) Major emitting facilities on which construction is commenced

No major emitting facility on which construction is commenced after August 7, 1977, may be

constructed in any area to which this part applies unless-

(1) a permit has been issued for such proposed facility in accordance with this part setting forth emission limitations for such facility which conform to the requirements of this

part;

(2) the proposed permit has been subject to a

review in accordance with this section, the required analysis has been conducted in accordance with regulations promulgated by the Administrator, and a public hearing has been

held with opportunity for interested persons

including representatives of the Administrator

to appear and submit written or oral presentations on the air quality impact of such

source, alternatives thereto, control technology requirements, and other appropriate

considerations;

(3) the owner or operator of such facility

demonstrates, as required pursuant to section

7410() of this title, that emissions from construction or operation of such facility will not

cause, or contribute to, air pollution in excess

of any (A) maximum allowable increase or

maximum allowable concentration for any

pollutant in any area to which this part applies more than one time per year, (B) national ambient air quality standard in any air

quality control region, or (C) any other applicable emission standard or standard of performance under this chapter;

(4) the proposed facility is subject to the

best available control technology for each pollutant subject to regulation under this chapter

emitted from, or which results from, such facility;

(5) the provisions of subsection (d) of this

section with respect to protection of class I

areas have been complied with for such facility;

(6) there has been an analysis of any air

quality impacts projected for the area as a result of growth associated with such facility;

(7) the person who owns or operates, or proposes to own or operate, a major emitting facility for which a permit is required under this

part agrees to conduct such monitoring as

may be necessary to determine the effect

which emissions from any such facility may

have, or is having, on air quality in any area

which may be affected by emissions from such

source; and

(8) in the case of a source which proposes to

construct in a class III area, emissions from

which would cause or contribute to exceeding

the maximum allowable increments applicable

in a class II area and where no standard under

section 7411 of this title has been promulgated

subsequent to August 7, 1977, for such source

category, the Administrator has approved the

determination of best available technology as

set forth in the permit.

(b) Exception

The demonstration pertaining to maximum allowable increases required under subsection

(a)(3) of this section shall not apply to maximum allowable increases for class IE areas in the

case of an expansion or modification of a major

emitting facility which is in existence on August 7, 1977, whose allowable emissions of air

pollutants, after compliance with subsection

(a)(4) of this section, will be less than fifty tons

per year and for which the owner or operator of

such facility demonstrates that emissions of

particulate matter and sulfur oxides will not

cause or contribute to ambient air quality levels

§ 7475 Page 976

ADD5

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 126 of 132(135 of 141)
TITLE 42-THE PUBLIC HEALTH AND WELFARE

in excess of the national secondary ambient air

quality standard for either of such pollutants.

(c) Permit applications

Any completed permit application under section 7410 of this title for a major emitting facility in any area to which this part applies shall

be granted or denied not later than one year

after the date of filing of such completed application.

(d) Action taken on permit applications; notice;

adverse impact on air quality related values;

variance; emission limitations

(1) Each State shall transmit to the Administrator a copy of each permit application relating

to a major emitting facility received by such

State and provide notice to the Administrator of

every action related to the consideration of such

permit.

(2)(A) The Administrator shall provide notice

of the permit application to the Federal Land

Manager and the Federal official charged with

direct responsibility for management of any

lands within a class I area which may be affected by emissions from the proposed facility.

(B) The Federal Land Manager and the Federal

official charged with direct responsibility for

management of such lands shall have an affirmative responsibility to protect the air quality related values (including visibility) of any such

lands within a class I area and to consider, in

consultation with the Administrator, whether a

proposed major emitting facility will have an

adverse impact on such values.

(C)(i) In any case where the Federal official

charged with direct responsibility for management of any lands within a class I area or the

Federal Land Manager of such lands, or the Administrator, or the Governor of an adjacent

State containing such a class I area files a notice alleging that emissions from a proposed

major emitting facility may cause or contribute

to a change in the air quality in such area and

identifying the potential adverse impact of such

change, a permit shall not be issued unless the

owner or operator of such facility demonstrates

that emissions of particulate matter and sulfur

dioxide will not cause or contribute to concentrations which exceed the maximum allowable increases for a class I area.

(ii) In any case where the Federal Land Manager demonstrates to the satisfaction of the

State that the emissions from such facility will

have an adverse impact on the air quality-related values (including visibility) of such lands,

notwithstanding the fact that the change in air

quality resulting from emissions from such facility will not cause or contribute to concentrations which exceed the maximum allowable increases for a class I area, a permit shall not be

issued.

(iii) In any case where the owner or operator

of such facility demonstrates to the satisfaction

of the Federal Land Manager, and the Federal

Land Manager so certifies, that the emissions

from such facility will have no adverse impact

on the air quality-related values of such lands

(including visibility), notwithstanding the fact

that the change in air quality resulting from

emissions from such facility will cause or contribute to concentrations which exceed the maximum allowable increases for class I areas, the

State may issue a permit.

(iv) In the case of a permit issued pursuant to

clause (iii), such facility shall comply with such

emission limitations under such permit as may

be necessary to assure that emissions of sulfur

oxides and particulates from such facility will

not cause or contribute to concentrations of

such pollutant which exceed the following maximum allowable increases over the baseline concentration for such pollutants:

Maximum allowable increase (in

micrograms per cubic meter)

Particulate matter:

Annual geometric mean .................................. 19

Twenty-four-hour maximum .......................... 37

Sulfur dioxide:

Annual arithmetic m ean ................................. 20

Twenty-four-hour maximum .......................... 91

Three-hour m aximum ..................................... 325

(D)(i) In any case where the owner or operator

of a proposed major emitting facility who has

been denied a certification under subparagraph

(C)(iii) demonstrates to the satisfaction of the

Governor, after notice and public hearing, and

the Governor finds, that the facility cannot be

constructed by reason of any maximum allowable increase for sulfur dioxide for periods of

twenty-four hours or less applicable to any class

I area and, in the case of Federal mandatory

class I areas, that a variance under this clause

will not adversely affect the air quality related

values of the area (including visibility), the Governor, after consideration of the Federal Land

Manager's recommendation (if any) and subject

to his concurrence, may grant a variance from

such maximum allowable increase. If such variance is granted, a permit may be issued to such

source pursuant to the requirements of this subparagraph.

(ii) In any case in which the Governor recommends a variance under this subparagraph in

which the Federal Land Manager does not concur, the recommendations of the Governor and

the Federal Land Manager shall be transmitted

to the President. The President may approve the

Governor's recommendation if he finds that

such variance is in the national interest. No

Presidential finding shall be reviewable in any

court. The variance shall take effect if the

President approves the Governor's recommendations. The President shall approve or disapprove

such recommendation within ninety days after

his receipt of the recommendations of the Governor and the Federal Land Manager.

(iii) In the case of a permit issued pursuant to

this subparagraph, such facility shall comply

with such emission limitations under such permit as may be necessary to assure that emissions of sulfur oxides from such facility will not

(during any day on which the otherwise applicable maximum allowable increases are exceeded)

cause or contribute to concentrations which exceed the following maximum allowable increases

for such areas over the baseline concentration

for such pollutant and to assure that such emissions will not cause or contribute to concentrations which exceed the otherwise applicable

maximum allowable increases for periods of exposure of 24 hours or less on more than 18 days

during any annual period:

Page 977 § 7475

ADD6

Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 127 of 132(136 of 141)
40 CFR Ch. 1 (7-1-12 Edition)

§ 51.286 Electronic reporting.

States that wish to receive electronic

documents must revise the State Implementation Plan to satisfy the requirements of 40 CFR Part 3-(Electronic reporting).

[70 FR 59887, Oct. 13, 2005]

Subpart P-Protection of Visibility

AUTHORITY: Secs. 110, 114, 121, 160-169, 169A,

and 301 of the Clean Air Act, (42 U.S.C. 7410,

7414, 7421, 7470-7479, and 7601).

SOURCE: 45 FR 80089, Dec. 2, 1980, unless

otherwise noted.

§ 51.300 Purpose and applicability.

(a) Purpose. The primary purposes of

this subpart are to require States to

develop programs to assure reasonable

progress toward meeting the national

goal of preventing any future, and remedying any existing, impairment of visibility in mandatory Class I Federal

areas which impairment results from

manmade air pollution; and to establish necessary additional procedures

for new source permit applicants,

States and Federal Land Managers to

use in conducting the visibility impact

analysis required for new sources under

§51.166. This subpart sets forth requirements addressing visibility impairment

in its two principal forms: "reasonably

attributable" impairment (i.e., impairment attributable to a single source/

small group of sources) and regional

haze (i.e., widespread haze from a multitude of sources which impairs visibility in every direction over a large

area).

(b) Applicability-(1) General Applicability. The provisions of this subpart

pertaining to implementation plan requirements for assuring reasonable

progress in preventing any future and

remedying any existing visibility impairment are applicable to:

(i) Each State which has a mandatory Class I Federal area identified in

part 81, subpart D, of this title, and (ii)

each State in which there is any source

the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility

in any such area.

(2) The provisions of this subpart pertaining to implementation plans to address reasonably attributable visibility

impairment are applicable to the following States:

Alabama, Alaska, Arizona, Arkansas,

California, Colorado, Florida, Georgia, Hawaii, Idaho, Kentucky, Louisiana, Maine, Michigan, Minnesota,

Missouri, Montana, Nevada, New

Hampshire, New Jersey, New Mexico,

North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, South

Dakota, Tennessee, Texas, Utah,

Vermont, Virginia, Virgin Islands,

Washington, West Virginia, Wyoming.

(3) The provisions of this subpart pertaining to implementation plans to address regional haze visibility impairment 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.

[45 FR 80089, Dec. 2, 1980, as amended at 64

FR 35763, July 1, 1999]

§ 51.301 Definitions.

For purposes of this subpart:

Adverse impact on visibility means, for

purposes of section 307, visibility impairment which interferes with the

management, protection, preservation,

or enjoyment of the visitor's visual experience of the Federal Class I area.

This determination must be made on a

case-by-case basis taking into account

the geographic extent, intensity, duration, frequency and time of visibility

impairments, and how these factors

correlate with (1) times of visitor use

of the Federal Class I area, and (2) the

frequency and timing of natural conditions that reduce visibility. This term

does not include effects on integral vistas.

Agency means the U.S. Environmental Protection Agency.

BART-eligible source means an existing

stationary facility as defined in this section.

Best Available Retrofit Technology

(BART) means an emission limitation

based on the degree of reduction

achievable through the application of

the best system of continuous emission

reduction for each pollutant which is

emitted by an existing stationary facility. The emission limitation must be

§ 51.286

ADD7

se: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 128 of 1(137 of 141)
40 CFR Ch. 1 (7-1-12 Edition)

major modification that would be constructed in an area that is designated

attainment or unclassified under section 107(d)(1)(D) or (E) of the CAA, the

State plan must, in any review under

§51.166 with respect to visibility protection and analyses, provide for:

(1) Written notification of all affected Federal Land Managers of any

proposed new major stationary source

or major modification that may affect

visibility in any Federal Class I area.

Such notification must be made in

writing and include a copy of all information relevant to the permit application within 30 days of receipt of and at

least 60 days prior to public hearing by

the State on the application for permit

to construct. Such notification must

include an analysis of the anticipated

impacts on visibility in any Federal

Class I area,

(2) Where the State requires or receives advance notification (e.g. early

consultation with the source prior to

submission of the application or notification of intent to monitor under

§51.166) of a permit application of a

source that may affect visibility the

State must notify all affected Federal

Land Managers within 30 days of such

advance notification, and

(3) Consideration of any analysis performed by the Federal Land Manager,

provided within 30 days of the notification and analysis required by paragraph- (a)(1) of this section, that such

proposed new major stationary source

or major modification may have an adverse impact on visibility in any Federal Class I area. Where the State finds

that such an analysis does not demonstrate to thb satisfaction of the

State that an adverse impact will result in the Federal Class I area, the

State must, in the notice of public

hearing, either explain its decision or

give notice as to where the explanation

can be obtained.

(b) The plan shall also provide for the

review of any new major stationary

source or major modification:

(1) That may have an impact on any

integral vista of a mandatory Class I

Federal area, if it is identified in accordance with §51.304 by the Federal

Land Manager at least 12 months before submission of a complete permit

application, except where the Federal

Land Manager has provided notice and

opportunity for public comment on the

integral vista in which case the review

must include impacts on any integral

vista identified at least 6 months prior

to submission of a complete permit application, unless the State determines

under §51.304(d) that the identification

was not in accordance with the identification criteria, or

(2) That proposes to locate in an area

classified as nonattainment under section 107(d)(1)(A), (B), or (C) of the Clean

Air Act that may have an impact on

visibility in any mandatory Class I

Federal area.

(c) Review of any major stationary

source or major modification under

paragraph (b) of this section, shall be

conducted in accordance with paragraph (a) of this section, and § 51.166(o),

(p)(1) through (2), and (q). In conducting such reviews the State must

ensure that the source's emissions will

be consistent with making reasonable

progress toward the national visibility

goal referred to in §51.300(a). The State

may take into account the costs of

compliance, the time necessary for

compliance, the energy and nonair

quality environmental impacts of compliance, and the useful life of the

source.

(d) The State may require monitoring of visibility in any Federal Class

I area near the proposed new stationary. source or major modification

for such purposes and by such means as

the State deems necessary and appropriate.

[45 FR 80089, Dec. 2, 1980, as amended at 64

FR 35765, 35774, July 1, 1999]

§ 51.308 Regional haze program re- quirements.

(a) What is the purpose of this section?

This section establishes requirements

for implementation plans, plan revisions, and periodic progress reviews to

address regional haze.

(b) When are the first implementation

plans due under the regional haze program? Except as provided in § 51.309(c),

each State identified in §51.300(b)(3)

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.

§51.308

ADD8

se: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 129 of 1(138 of 141)
Environmental Protection Agency

(c) [Reserved]

(d) What are the core requirements for

the implementation plan for regional

haze? 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 which 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:

(1) Reasonable progress goals. For each

mandatory Class I Federal area located

within the State, the State must establish goals (expressed in deciviews) that

provide for reasonable progress towards

achieving natural visibility conditions.

The reasonable progress goals must

provide for an improvement in visibility for the most impaired days over the period of the implementation plan

and ensure no degradation in visibility

for the least impaired days over the

same period.

(i) In establishing a reasonable

progress goal for any mandatory Class

I Federal area within the State, the

State must:

(A) Consider 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 sources, and include a demonstration showing how these factors were taken into consideration in se- lecting the goal.

(B) Analyze and determine the rate of

progress needed to attain natural visibility conditions by the year 2064. To

calculate this rate of progress, the

State must compare baseline visibility

conditions to natural visibility conditions in the mandatory Federal Class I area and determine the uniform rate of

visibility improvement (measured in

deciviews) that would need to be maintained during each implementation period in order to attain natural visibility conditions by 2064. In establishing the reasonable progress goal,

the State must consider the uniform

rate of improvement in visibility and

the emission reduction measures need-

§ 51.308

ed to achieve it for the period covered

by the implementation plan.

(ii) For the period of the implementation plan, if the State establishes a

reasonable progress goal that provides

for a slower rate of improvement in

visibility than the rate that would be

needed to attain natural conditions by

2064, the State must demonstrate,

based on the factors in paragraph

(d)(1)(i)(A) of this section, that the rate

of progress for the implementation

plan to attain natural conditions by

2064 is not reasonable; and that the

progress goal adopted by the State is

reasonable. 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 conditions if visibility improvement continues at the rate of

progress selected by the State as reasonable.

(iii) In determining whether the

State's goal for visibility improvement

provides for reasonable progress towards natural visibility conditions, the

Administrator will evaluate the demonstrations developed by the State pursuant to paragraphs (d)(1)(i) and

(d)(1)(ii) of this section.

(iv) In developing each reasonable

progress goal, the State must consult

with those States which may reasonably be anticipated to cause or contribute to visibility impairment in the

mandatory Class I Federal area. In any

situation in which the State cannot

agree with another such State or group

of States that a goal provides for reasonable progress, the State must describe in its submittal the actions

taken to resolve the disagreement. In

reviewing the State's implementation

plan submittal, the Administrator will

take this information into account in

determining whether the State's goal

for visibility improvement provides for

reasonable progress towards natural

visibility conditions.

(v) 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 to achieve the progress

goal adopted by the State.

(vi) The State may not adopt a reasonable progress goal that represents

ADD9

se: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 130 of 1(139 of 141)
§ 51.308

less visibility improvement than is expected to result from implementation

of other requirements of the CAA during the applicable planning period.

(2) Calculations of baseline and natural

visibility conditions. For each mandatory Class I Federal area located within the State, the State must determine

the following visibility conditions (expressed in deciviews):

(i) Baseline visibility conditions for

the most impaired and least impaired

days. The period for establishing baseline visibility conditions is 2000 to 2004.

Baseline visibility conditions must be

calculated, using available monitoring

data, by establishing the average degree of visibility impairment for the

most and least impaired days for each

calendar year from 2000 to 2004. The

baseline visibility conditions are the

average of these annual values. 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;

(ii) For an implementation plan that

is submitted by 2003, the period for establishing baseline visibility conditions for the period of the first longterm strategy is the most recent 5-year

period for which visibility monitoring

data are available for the mandatory

Class I Federal areas addressed by the

plan. For mandatory Class I Federal

areas without onsite monitoring data,

the State must establish baseline values using the most representative

available monitoring data, in consultation with the Administrator or his or

her designee;

(iii) Natural visibility conditions for

the most impaired and least impaired

days. Natural visibility conditions

must be calculated by estimating the

degree of visibility impairment existing under natural conditions for the

most impaired and least impaired days,

based on available monitoring information and appropriate data analysis

techniques; and

(iv)(A) 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 visi40 CFR Ch. 1 (7-1-12 Edition)

bility conditions for the most impaired

and least impaired days; or

(B) For all future implementation

plan revisions, the number of deciviews

by which current conditions, as calculated under paragraph (f)(1) of this

section, exceed natural visibility conditions for the most impaired and least

impaired days.

(3) Long-term strategy for regional

haze. Each State listed in §51.300(b)(3)

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 which may be

affected by emissions from the State.

The long-term strategy must include

enforceable emissions limitations,

compliance schedules, and other meas- ures as necessary to achieve the reasonable progress goals established by

States having mandatory Class I Federal areas. In establishing its longterm strategy for regional haze, the

State must meet the following requirements:

(i) Where the State has emissions

that are reasonably anticipated to contribute to visibility impairment in any

mandatory Class I Federal area located

in another State or States, the State

must consult with the other State(s) in

order to develop coordinated emission

management strategies. The State

must consult with any other State having emissions that are reasonably anticipated to contribute to visibility impairment in any mandatory Class I

Federal area within the State.

(ii) Where other States cause or con- tribute to impairment in a mandatory

Class I Federal area, the State must

demonstrate that it has included in its

implementation plan all measures necessary to obtain its share of the emission reductions needed to meet the

progress goal for the area. If. the State

has participated in a regional planning

process, the State must ensure it has

included all measures needed to

achieve its apportionment of emission

reduction obligations agreed upon

through that process.

(iii) The State must document the

technical basis, including modeling,

monitoring and emissions information,

ADD10

se: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 131 of 1(140 of 141)
Environmental Protection Agency

on which the State is relying to determine its apportionment of emission re- duction obligations necessary for

achieving reasonable progress in each

mandatory Class I Federal area it affects. The State may meet this requirement by relying on technical analyses

developed by the regional planning or- ganization and approved by all State

participants. The State must identify

the baseline emissions inventory on

which its strategies are based. The

baseline emissions inventory year is

presumed to be the most recent year of

the consolidate periodic emissions inventory.

(iv) The State must identify all an- thropogenic sources of visibility impairment considered by the State in developing its long-term strategy. The

State should consider major and minor

stationary sources, mobile sources, and area sources. (v) The State must consider, at a minimum, the following 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) Emissions limitations and schedules for compliance to achieve the reasonable progress goal;

(D) Source retirement and replacement schedules;

(E) Smoke management techniques

for agricultural and forestry management purposes including plans as cur- rently exist within the State for these

purposes;

(F) Enforceability of emissions limitations and control measures; and

(G) 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.

(4) Monitoring strategy and other implementation plan requirements. The State

must submit with the implementation

plan a monitoring strategy for meas- uring, characterizing, and reporting of

regional haze visibility impairment

that is representative of all mandatory

Class I Federal areas within the State.

This monitoring strategy must be coordinated with the monitoring strategy

§51.308

required in § 51.305 for reasonably attributable visibility impairment. 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.

(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 implemeiftation 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 a baseline year, 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.

(e) Best Available Retrofit Technology

(BART) requirements for regional haze

visibility impairment. The State must

ADD11

se: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 132 of 1(141 of 141)