# 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. ) ) ) ) ) ) ) ) ) ) ) N o. 13-73383

) ) ) ) ) ) ) ) ) ) ) ) ) N o. 13-73393

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) N o. 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, re spondents United States Environmental Protection Agency, et al. (collectively “E PA”) in the above-captioned consolidated petitions for review move the Court fo r leave to file the accompanying 24,288 word Brief of Respondent EPA (“Response Br ief.”). The Response Brief is EPA’s consolidated response to the opening brie fs submitted by Petitioners and by amicus Tucson Electric Power Company, wh ich collectively total 37,298 words. 1 

# Counsel for EPA has contacted counsel for all Petiti oners, 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 Pur dy, EPA states as follows:
1. Petitioners seek review of an EPA final action published in the Federal Register at 78 Fe d. Reg. 46,142 (July 30, 20 13) and entitled “Approval and Disapproval of Air Quality State Implem entation 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 Op ening Brief, ECF No. 8940288 (13,921 words); Brief of Petitioner Arizona Mini ng Association, ECF No. 8948493 (13,648 words); Petitioner Phoenix Cement Comp any’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 automati cally allows an additional 1,400 words for a consolidated brief filed in response to multiple opening briefs. In this case, however, Petitioners have f iled 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 word s – 8,888 more than normally allowed for a consolidated response brief under Fede ral 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 th an EPA would have been entitled to had it submitted a separate respons e to each of Petitioners’ briefs. 3. The length of the Response Brie f 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) (9 th

# 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), 890613 0 (order granting motion). 4. EPA has made every effort to limit the size of its Response Brief. This case nonetheless aris es against a complicatedregulatory and factual background that requires so me explication. In a ddition, although Petitioners’ arguments overlap in some respects and ha ve 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 argumen ts) with Response Brief at 52-61, 93- 100 (addressing individual arguments) EPA therefore respectfully requests l eave to file the ac companying 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, toge ther with the accompanying Declaration of Angeline Purdy and Brief of Respondent EPA, via the Court’s CM/ECF system, which will electronically se rve 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. ) ) ) ) ) ) ) ) ) ) ) N o. 13-73383

) ) ) ) ) ) ) ) ) ) ) ) ) N o. 13-73393

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) N o. 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 fo llowing under penalty of perjury. 1. I am a Senior Trial Attorney wi th the United States Department of Justice to whom responsibility for this case has been assigned. 2. This declaration is submitted insupport 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 c onsolidated petitions for review. 3. Petitioners seek review of an EPA final action published in the Federal Register at 78 Fe d. Reg. 46,142 (July 30, 20 13) and entitled “Approval and Disapproval of Air Quality State Implem entation Plans; Arizona; Regional Haze and Interstate Transport Requirements. ” On November 19, 2013, the Court granted the Parties’ motion to conso lidate the above-captioned matters. See ECF No. 8867656. 4. Petitioners have filed three se parate opening briefs totaling 33,070 words. See Petitioner State of Arizona’s Opening Brief, ECF No. 8940288 (13,921 words); Brief of Petitioner Ariz ona 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 Tu cson 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 Stat e of Arizona, ECF No. 8948740. 5. EPA’s consolidated response brief is 24,288 words – 8,888 more than normally allowed for a consolidated respons e brief under Federal and Circuit Rules, but slightly less than 75% the total wo rds 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 conso lidated response brief filed by EPA in the related case of Arizona v. EPA , No. 13-70366 (and consolidated cases) (9 th

# Cir., filed Jan. 31, 2013). 6. EPA has made every effort to limit the size of its Response Brief. This case nonetheless aris es against a complicatedregulatory and factual background that requires so me explication. In a ddition, although Petitioners’ arguments overlap in some respects and ha ve 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 a ll 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 18 th

# 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 ENVIRONMEN TAL PROTECTION AGENCY
PETITION FOR REVIEW OF A DE CISION 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 AUT HORITIES ..................................................................................... v GLOSSARY ............................................................................................................ xii JURISDIC TION ......................................................................................................... 1 ISSUES PRES ENTED ............................................................................................... 1 STATUTES AND RE GULATIONS ......................................................................... 4 STATEMENT OF THE CASE .................................................................................. 4 I. STATUTORY AND REGULAT ORY BACKGROUND .............................. 5 A. Clean Air Act Overview ........................................................................ 5 B. Visibility Protection Under the Act ....................................................... 5 1. BART .......................................................................................... 8 2. Reasonable Pr ogress ................................................................. 10 C. Prevention of Significan t Deterioration .............................................. 11 II. STATEMENT OF FACTS ............................................................................ 12 SUMMARY OF AR GUMENT ............................................................................... 15 ARGUMENT ........................................................................................................... 20 I. EPA’S PARTIAL DISAPPROV AL 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 OFFEDERAL 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 Obligat ed to Disapprove SIPs That Do Not Conform to Appli cable Law and Are Not Supported by ReasonedAnalysis ........................................................ 26 B. ADEC Confirms EPA’s Authority to Ensure that SIPs Conform to the Law And Are Reasonably Supp orted ........................ 32 C. Unsupported Assertions That The SIP Met Applicable Requirements Do Not Satisfy Petitioners’ Bu rden ............................. 35 III. EPA REASONABLY DISAPP ROVED THE STATE’S DETERMINATION THAT SUNDT 4 IS NOT BART-ELIGI BLE ......................................................................................... 37 A. EPA Reasonably Interpreted th e Act, the Regional Haze Rule, and the BART Guide lines In Concluding That Sundt 4 is BART -eligible .................................................................... 40 B. The State’s Arguments Concerning Congressional Intent Have Been Waived, and in Any Event L ack Merit .................. 48 IV. EPA REASONABLY DISAPP ROVED THE STATE’S DETERMINATIONS THAT THE NELSON LIME PLANT AND THE COPPER SMELTERS WERE NOT SUBJECT TO BART ............................................................................................................. 50 A. EPA Reasonably Disapproved th e 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 mode ling 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 th e State’s Determination that No BART Determin ation Was Required For NO X

# For the Hayden and Miami Smelters ......................................................... 61 1. The record supports EPA’s co nclusion that the State failed to demonstrate that the copper smelters lack the potential to emit more than 40 tons per year of NO X

# ........................................................................................... 62 2. EPA reasonably rejected the State’s pollutant-specific approach to the subject-t o-BART determination ...................... 66 V. EPA REASONABLY DISAPP ROVED THE STATE’S DETERMINATION THAT EXIST ING CONTROLS AT THE COPPER SMELTERS CONS TITUTE BART FOR SO 2 

# . ............................ 72 A. The State Did Not Conduct An Adequate Analysis Of Potential BART Controls Fo r The Copper Sm elters .......................... 74 1. The State did not conduct a fi ve-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-Subj ect Emissions, As Required By The Act And Regiona l Haze Ru le ....................................................... 83 VI. EPA REASONABLY DISAPP ROVED THE STATE’S PROGRESS GOA LS ..................................................................................... 86 A. EPA Reasonably Determined That The State Had Not Provided The Required Statutory Analys is ......................................... 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 Th at The 2013 Supplement Did Not Establish That The St ate Would Meet The Glide Path ...................................................................................................... 98 CONCLUSI ON ...................................................................................................... 101 STATEMENT OF RELA TED CASES ................................................................. 102 CERTIFICATE CONCERNING WORD LIMI TATION 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 (2 004) ......................................................................... 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 (1 992) ................................................................................................. 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 (2 002) ................................................................................................. 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 (9 th

# 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 (1 986) ................................................................................................. 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 Ci r. 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 Ci r. 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 (9 th

# Cir. 2013 ......................................................................... 32
Texas v. EPA , 690 F.3d 670 (5th Cir. 2012) ................................................................................. 85 United States v. Minnkota Power Coop. , 831 F. Supp. 2d 110 9 (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, A pp. 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 (J uly 31, 1 997) ........................................................................ 10 64 Fed. Reg. 35,714 (Jul y 1, 1999) ...................................................................... 6, 69 70 Fed. Reg. 39,104 (Jul y 6, 2005) ...................................................................passim 74 Fed. Reg. 2392 (J an. 15, 2009) ........................................................................... 12 76 Fed. Reg. 65,653 (O ct. 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 (Jul y 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 Federa l Regional Haze Rule 2013 Supplement Arizona State Implem entation Plan Revision: Regional Haze Under Section 308 of the Federal Regional Haze Rule Act Clean Air Act
ADEC Alaska Department of Envi ronmental 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 Analys is 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
NO X

# Nitrogen oxide NSPS New Source Performance Standard Phoenix Cement Petitioner Phoenix Cement Company Phoenix Cement Br. Petitioner Phoenix Ce ment Company’s Opening Brief, ECF No. 8947898 PSD Prevention of Signi ficant Deterioration Rule Approval and Disapproval of Air Quality State Implementation Plans; Ar izona; Regional Haze and Interstate Transport Require ments; Rules, 78 Fed. Reg. 46,142 (July 30, 2013) SIP State Implementation Plan
SO 2

# Sulfur dioxide State Petitioner State of Arizona State Br. Petitioner State of Ariz ona’s Opening Brief, ECF No. 8940288 Sundt 4 Tucson Electric Power Company’s Sundt Generating Station Unit 4 Sundt Memo November 21, 2012 Memora ndum to Docket re TEP Sundt Unit 4 – BART Eligibility Tucson Power Amicus Curiae Tucson Electric Power Company Tucson Power Br. Brief of Amicus Cu riae 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 Implem entation 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 infraat 44, 48, 81. ISSUES PRESENTED Section 110 of the Clean Air Act (“Ac t” or “CAA”) provides in pertinent part that State Implementation Plans (“ SIPs”) must be submitted to EPA for approval, and that EPA shall approve SIPs onl y 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 benecessary to make reasonable progress”

1 

# EPA’s consolidated brief responds to the following briefs: Petitioner State of Arizona’s Opening Brief, ECF No. 89402 88 (“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)

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# toward meeting national visibility goals. 42 U.S.C. § 7491(b)(2). Such measures include, but are not limited to, the requireme nt that certain sources install the “best available retrofit technology,” or “BAR T,” 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 an d 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 visi bility impairment in a particular area. 42 U.S.C. 7491(b)(2)(A). Unde r EPA’s implementing Regional Haze Rule, SIPs must also include “reasonable progress goals” di rected 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, th e BART requirement was first added to the Act in 1977, and required emission-control retrofitting of ma jor sources that were, at the time, still re latively new (i.e., built in the 15-year window prior to 1977). For major sources built or m odified after 1977, the Prevention of Significant Deterioration program prospec tively 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; infraat 8-11. Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 17 of 132 (26 of 141)

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# applicable provisions of the Act and its implementing regulations, including those pertaining to visibility protection? 2. Did EPA reasonably disapprove th e 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 Regiona l Haze Rule, and (b) Sundt 4 had not previously undergone any visi bility-protection review? 3. Did EPA reasonably disapprove th e 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 dete rminations, and (b) not supported by the visibility modeling submitted by the State? 4. Did EPA reasonably disapprove th e 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 (“NO X 

# ”) where (a) the State failed to de monstrate that either smelter’s NO X 

# 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)

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# 5. Did EPA reasonably disapprove the State’s determination that existing controls at the Hayden and Miami smelters constitute BART for sulfur dioxide (“SO 2 

# ”), where the State made that determin ation in reliance on a forty-year-old emission standard without fully consideri ng subsequent developments in emission control? 6. Did EPA reasonably disapprove th e State’s progress goals where the State failed to conduct the statutorily-requ ired analysis of so urces that the State identified as causing or contribu ting 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 (“A ssociation’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 faile d to ensure that certain protected areas in Arizona, such as the Grand Canyon National Park, will make reasonable progress towards natural visi bility conditions, EPA partially disapproved the SIP. Petitioners challenge thatpartial disapproval. Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 19 of 132 (28 of 141)

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# I. STATUTORY AND REGU LATORY 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 standard s 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 applicab le requirements of [the Act],” 42 U.S.C. § 7410(k)(3), including applicable requireme nts 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, orif 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 visi bility was rapidly deteriorating in many places . . . set aside for special protection intheir natural states . . . .” Chevron Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 20 of 132 (29 of 141)

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# 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 mandato ry 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 in clude, 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 Ac t, 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 1 999. 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 a nd atmospheric discoloration.” Id

. § 7491(g)(6). Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 21 of 132 (30 of 141)

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# the national goal of preventing any future, and remedying any existing, impairment of visibility in mandatory Class I Fede ral 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 manda tory for fossil-fuel fired power plants with a total generating capacity over 750 megawatts, and pr ovide 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 (“Secti on 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 prog ress 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 Regis ter makes it easier to locat e 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)

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# 1. BART. Consistent with Congress’ directive, the Regional Haze Ru le requires each State to submit a SIP “containing emissi on limitations representing BART and schedules for compliance with BART fo r 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 “a n 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 deci de which sources impair visibility and what BART controls should apply to those sources.”). However, if EPA determines that a State’s BART determin ation does not meet the requirements of the Act or the Regional Haze Rule, EP A 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 th at EPA must ensure SIPs co mply 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)

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# whether State determinations are “‘reasonably moored to the Act’s provisions’” and whether they are “based on ‘reasone d analysis.’” North Dakota v. EPA , 730 F.3d 750, 761 (8 th

# 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 defin ition of “BART-eligible source,” see 40 C.F.R. § 51.301; (b) determining which BART-eligib le sources “emit[] any air pollutant which may reasonably be anticipated to caus e or contribute to any impairment of visibility” in a Class I area, making th ose 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 em issions 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 po llution control technology in use at the source; (4) the remaining useful life of th e source; and (5) the degree of visibility improvement reasonably anticipated to re sult 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)

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# 2. Reasonable Progress. One of the core requirements for a regi onal 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 fo r 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 considerthe following factors and demonstrate how they were considered in selecting the goal: (1) co sts 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 conditio ns 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 visi bility impairment.” 40 C.F.R. § 51.301. A value of zero deciviews represents pris tine conditions, and values increase as visibility degrades. A 1.0 deciview degrad ation in visibility is perceptible to the average person. 62 Fed. Reg. 41,138, 41,145 (J uly 31, 1997). Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 25 of 132 (34 of 141)

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# 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 demonstr ate – using the four factors set out above – why the proposed rate of improvementis 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 demonstrati ons 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 Deteriorat ion (“PSD”) program is designed to protect air quality in relatively pristine areas. See42 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 fe deral 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)

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# II. STATEMENT OF FACTS. This action arises against the backgr ound 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 s ubmitted 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 re gional haze SIP. See 74 Fed. Reg. 2392, 2393 (Jan. 15, 2009). This finding triggered an obliga tion 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 se ttled 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 Conser vation 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 Or der 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)

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# required that, absent an approved SIP, EPA would take final acti on 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 regi onal haze SIP by July 15, 2013 (the “Phase 2 Rule”). The Consent Decree also re quires EPA to promulgate a FIP to fill any gaps left by the Phase 2 disapprovals by June 27, 2014. On February 28, 2011, Arizona subm itted a regional hazeSIP to EPA. See generally Arizona State Implementation Plan: Regional Haze Under Section 308 of the Federal Regional Haze Rule (“2011 SIP” ), JA XX-XX. C onsistent with the deadlines established in the Consent De cree, 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 Fe d. 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). Th e 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)

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# On December 21, 2012, EPA proposed to approve in part and disapprove in part the remainder of the 2011 SIP. 77 Fe d. 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: Re gional Haze Under Section 308 of the Federal Regional Haze Rule, JA XX-XX (“2013 Supplement;” collectively the 2011 SIP and the 2013 Supplement are referre d to as the “Arizona Regional Haze SIP”). The 2013 Supplement addr essed 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 fi nal Phase 2 Rule, partially approving and partially disapproving the ArizonaRegional Haze SIP. 78 Fed. Reg. at 46,142. 7 

# Specific provisions of the Phase 2 Ru le are discussed in greater detail in the argument below. In general, howev er, while EPA approve d 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 re levant 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 re gulatory 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)

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# 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 NO X 

# ; and (4) that the existing controls at the copper smelters constitute BART for SO 2 

# . 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 partia l 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’ c ontention that EPA lacks authority to meaningfully review a regional haze SIP. As two other Circuit courts have recently held, EPA’s authority – and, ind eed, obligation – to review all SIPs for conformance with applicable laws and regu lations 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)

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# Under the Act and the Reg ional Haze Rule, a regi onal haze SIP must (1) identify sources that are BA RT-eligible, (2) identify which BART-eligible sources cause or contribute to visibi lity 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 c ontrols). A regional haze SIP must also include reasonable pr ogress goals designed to achieve natural visibility conditions by 2064. While EPA approved the bulk of the Arizona Regional Haze SIP, EPA disapproved some spec ific elements of that SIP at each of the three BART stages, and disapprove d 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 re gulatory 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 fo r otherwise BART-eligible sources reconstructed after 1977, on the assumption that their visibility impacts would be considered as part of statutorily-re quired new source permitting procedures for reconstructed sources. Sundt 4 was recons tructed 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)

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# 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 th e plain language of the Act and the Regional Haze Rule, in light of Congre ss’ 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 “subjectto BART” because it emits a pollutant which may reasonably be anticipated to caus e 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 determinedthat the Nelson Lime Plant was not subject to BART. In doing so, the State inconsistently applied its own chosen approach (which is the approach reco mmended by expert federal agencies) to making subject-to-BART determinations. The State also employed certain modeling equations at the Nelson Lime Plan t that were not used in making subjectto-BART determinations at any other facility. Finally, supplemental modeling submitted by the Nelson Lime Plant’s owne r 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)

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# disapproved the State’s determination that the Nelson Lime Plant was not subject
to BART. The State also determined that th e Hayden and Miami smelters were not subject to BART for NO X

# emissions. This determina tion was originally based on the State’s conclusion that both smelters’ NO X

# 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’
NO X

# emissions, when considered in isola tion, 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 po llutants 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 SO 2 

# in amounts that cause or contribute to visibility impairment, EPA reasonably determined that both fac ilities are subject to BART. BART determination: The State made a BART determination for SO 2

# at the Hayden and Miami smelters, but de termined that no additional emission controls were warranted. The State reachedthis 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)

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# standard for primary copper smelters as representing the best emission control available. In doing so, the State fa iled to fully consider emission control developments in the intervening fort y 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 analys is 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 Stat e did not provide the required analysis to support and justify its progress goals, EP A 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 s upported by the record, and constitutes a reasonable exercise of the Agency’s Congressionally-assigned responsibility to ensure that Arizona’s regional haze pr ogram complies with governing law. The petitions for review shoul d therefore be denied. Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 34 of 132 (43 of 141)

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# ARGUMENT I. EPA’S PARTIAL DISAPPROVA L 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 re view of certain EPA final actions. See , e.g ., State Br. at 1; A ssociation 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 thatCourt must defer to State’s judgments); see also Association Br. at 7, 27. Be cause the Court is not reviewing the SIP, there is no basis on which the Cour t could defer to the State’s judgment as reflected in that SIP. 8 

# Petitioners’ efforts to complicate the i ssue 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 determini ng whether EPA’s action was arbitrary or capricious. As discussed infrain Section II, however, Petitioners have failed to demonstrate that their overly-narrow con ception of EPA’s authority is accurate. Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 35 of 132 (44 of 141)

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# Procedure Act . . . and ask whether the ag ency’s action was ‘arbitrary, capricious, an abuse of discretion, or otherwis e 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 Ci r. 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 th em 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 “search ing and careful” inquiry, the standard of review ultimately “is a narrow one.” Bowman Tr ansp., 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 en titled to substantia l deference, and should be upheld as long as they are suppor ted by the administrativ e 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). I ndeed, a court must “‘be at its most deferential’” when reviewing EPA’s exercise of its technical and scientific expertise. SeeNat’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 mustbe 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 ar e 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 ba sed 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 un less that interpretation is “‘plainly erroneous or inconsistent with th e 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 (9 th

# Cir. 2000). Petitioner Phoenix Cement Compa ny (“Phoenix Cement”) and the Association attempt to eliminate Auerdeference 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 interpretati on of its regulations); see also Go v. Holder , 744 F.3d 604, 610-11 (9 th

# Cir. 2014) (discussing Auerdeference in 9 th 

# Circuit). Unless and until the Supr eme Court holds otherwise, Auerdeference applies. See Hart v. Massanari , 266 F.3d 1155 , 1170-71 (9 th

# 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. Pe titioners 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 st andard 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 Auerwhen it interprets regulations thatre-state or paraphrase statutory language. See Gonzales v. Oregon , 546 U.S. 243, 257 (2006) (agency does not acquire “ special authority” to interpret its ow n words when it has elected to paraphrase statutory language) (emphasis a dded). Petitioners cite no authority, however, to support their assertion that an agency gets “ no deference,” Phoenix Cement Br. at 15 (emphasis added), in in terpreting such regulations. Rather, the deference accorded the agen cy 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 agen cy’s fair and considered judgment.” Phoenix Cement Br. at 15 (citation omitted). This assertion is unsupported by any evidence that the interpretations at i ssue 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 reas onable progress toward meeting national visibility goal); (b) (specify ing 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 ar e 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, Pe titioners have failed to meet this burden. II. EPA’S CONGRESSIONALLY ASSI GNED 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 th at 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 effectiv e, 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 appr oval of SIPs). Petiti oners have failed to demonstrate that EPA exceeded the scope of its authority under the Act by partially disapproving the Ar izona 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 La w 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 th at 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 shoul d 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 (9 th

# 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 EP A explained in the Rule, “nothing in the CAA i ndicates that EPA’s role [in reviewing SIPs] is less important in the context of the regi onal 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 determin ation . . . does not permit EPA to examine the rationality or reasonablen ess 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 th e legislative history may evidence an intent to prevent the EPA from directlymaking 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 ro le. After issuance of the Conference Report cited by the Stat e, Congressman Roge rs 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 ach ieved by the revised State plan. If a State visibility protection plan is not adequate to assure such progress, then the Administrator must disappr ove that portion of the SIP and promulgate a visibility protection plan under section 110(c). Thus, visibility protection in most mandato ry 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. Firs t, 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 conc lusion 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 statut e provides the agency with the power to review Oklahoma’s BARTdetermination for these four units. The EPA may not approve any plan revision “if the revision would in terfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable re quirement of this chapter. 42 U.S.C. § 7410( l ). And under § 7410(a)(2)(J) SI Ps 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). Itthen concluded by stating that

“ because the EPA monitors SIPs fo r compliance with the statute , it must monitor BART determinations for complia nce 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 ba sed on a mistaken interpretation of ADEC . See State of Arizona et al. v. EPA , No. 13-70366 (9 th

# Cir. filed Jan. 31, 2013), Br ief of Respondent EPA (ECF No. 889957) at 32; infraat 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 (alth ough 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 th ey are subject to EP A review.”). There is thus nothing in the text of Oklahomathat supports the St ate’s claim that the Tenth Circuit’s decision turned on the app licability of the BART Guidelines. Nor did the Tenth Circuit “distinguish” American Corn Growers based on the applicability of the BART Guidelines. Stat e Br. at 24. The Tenth Circuit said only that American Corn Growers “does not alter” the co nclusion that because EPA must ensure SIPs comply with the statut e, EPA cannot be without authority to review BART determinations for comp liance with the Guidelines or other applicable law. Oklahoma , 723 F.3d at 1208-09. The State’s effort to distinguish North Dakotais 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 recogni zed EPA’s authority to review regional haze SIPs and to disapprove those that ar e inconsistent with applicable law or unsupported by reasoned analysis. See North Dakota , 730 F.3d at 761 (rejecting argument that EPA must appr ove 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 Ci rcuit’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 al so 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, EP A must ultimately determine whether a SIP conforms to applicable law. See North Dakota , 730 F.3d at 761 (EPA not required to approve BART de termination 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 provi sions of the Act and the Regional Haze Rule). Phoenix Cement’s musing on the mean ing 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 ro le in that review. What is and is not “reasonable” in this context is, however, de termined 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 (9 th

# Cir. 2013), Phoenix Cement Br. at 16-17, is thus unhelpful. Scottdid 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 co mplex, detailed, and prescriptive statutory and regulatory scheme. B. ADEC Confirms EPA’s Authority to Ensure that SIPs Conform to the Law And Are Re asonably Supported. Petitioners argue that the Supr eme 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; Associati on Br. at 22, 28, 30-31; Phoenix
Cement Br. at 16-17. In ADEC , the Court considered EP A’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. Th e 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 dete rmination 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 e xplicit 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 Congr ess, having expressly e ndorsed an expansive surveillance role for EPA in two independent CAA provisions, would then implicitly preclude the Agency from verifying substantive compliance with the BACT provisi ons and, instead, limit EPA’s superintendence to the insubsta ntial question whether the state permitting authority had utte red the key words “BACT.”
ADEC , 540 U.S. at 490. The Court further explained that although a State retains “considerable leeway” to determine BA CT, 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 de terminations conform to the law and are based on a reasoned analysis. SeeADEC , 540 U.S. at 488-91. As the Eighth Circuit recently recognized, ADEC thus confirms, ratherthan 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 examin e the substance of a BACT determination to be “persuasiv e in the context of § 169A”). Petitioners’ argument that ADEC shifts the burdens of production and persuasion to EPA is an even greater de parture 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, in cluding 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 cite d by the State, the Court was addressing the concern that EPA might gain a “proo f-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 clar ify that, in order to eliminate this possibility, “in either an EPA-initiated ci vil action or a challenge to an EPA stopconstruction order filed in state or fede ral court, the prod uction 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 Sati sfy Petitioners’ Burden. The State asserts repeated ly that its SIP conformed to applicable laws and regulations and contained a ll 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[me nt]” with the State’s appro ach. 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 resolvin g an EPA enforcement action. Minnkota , 831 F. Supp. 2d at 1112. Critically, the d ecree itself set forth the standard of review. Id. at 1118-19. The court states that th e standard established in the decree “mirrors” that set forth in ADEC (which, as discussed in th e 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 conc lusory 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 ad equate technical s upport. See generally infra sections III-VI. Petitioners also argue repeatedly that, in order to disapprove any element of the SIP, EPA was required to dem onstrate 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 orde r to disapprove the State’s determination that the Nelson Lime Plant was not subject to BART (see infraat 52-61), but instead would have to be able to point to a regulation explicitly requiring a State to consider maximum rather than av erage 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 EP A will evaluate the reasonableness of the analysis supporting a regional haze SIP, no t 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 ba sed 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 supporte d by the administrative record. Petitioners have, in sum, failed to demonstrate thatEPA lacked meaningful authority to review the Arizona Regional Haze SIP, or that its partial disapproval of that SIP should be reviewed any diffe rently 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, Petiti oners have not met their burden and the petitions for review should therefore be denied. III. EPA REASONABLY DISAPPROVED THE STATE’S DETERMINATION THAT SUND T 4 IS NOT BART-ELIGIBLE. The Regional Haze Rule defines a “B ART-eligible source” as “an existing stationary facility.” 40 C.F. R. § 51.301. “Existing stati onary facility” is, in turn, defined to include “any of [certain enumer ated 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 stati onary 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 werein operation before August 7, 1962, but were reconstructed during th e 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-elig ible if it (1) be gan operation after August 1962, but before August 1977, or (2) began operation be fore August 1962, but was reconstructed betwee n August 1962 and August 1977. This “accurately reflects Congress’ intent that the BART provision apply to sources which had been ‘grandfathered’ from” requirements (inc luding PSD) applicable only to sources constructed or reconstructe d 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 supraat 11. The reconstruction was, however, undertaken pur suant to a congressional directive that also created a PSD exemption. See 77 Fed. Reg. at 75,720; infraat 41. At the time that Arizona submitted its Regional Ha ze 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 anal ysis. 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 a pplies, sources must undergo PSD review when they are “constructed,” which is defi ned 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, reas oning 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 de termination 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 Do cket re TEP Sundt Unit 4 (“Sundt Memo”) at 4, JA XX. Sundt 4 was, how ever, reconstructed in 1987. Arizona TSD at 16, JA XX. It therefore potentially fa lls 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 potentia l 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 th e Guidelines’ reconstruction exemption.
See 77 Fed. Reg. at 75,722; 78 Fed. Reg. at 46,151-52. Th is 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 re quire 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 associat ed visibility analysis when it was reconstructed. As the State itself acknowle dged, 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 fro m BART eligibility. Sundt Memo at 4, JA XX. EPA explained, however, thatwhile the Guidelines provide important guidance, they must “be cons idered 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, mo reover, 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 (c iting 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 requ ired for sources for which potential visibility impacts had already been addr essed” 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 r easonable for the State to determine that Sundt 4 was not BART-eligible. As EPA e xplained, 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 exempti on narrowly.” Sundt Memo at 5, JA XX; 78 Fed. Reg. at 46,151. In terpreting “BART-eligible” to include reconstructed sources that did not go through PSD permitting “is also consistent with Congressional intent and with EPA’s in tent in promulgating the relevant regulations.” Sundt Memo at 5, JA XX. As EPA elabor ated 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 BARTGuidelines, we noted that “sources reconstructed after 1 977, 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 prea mble language is not binding with respect to [Sundt 4], but it still pr ovides important guidance as to how EPA interprets the applicable statut ory 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 e ffect 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 di sregarded the BART Guidelines by concluding that the Guidelines’ reconstruc tion 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, St ate 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 fashi on.” 78 Fed. Reg. at 46,151. 17 

# Tucson Power argues that EPA’s 1980 statem ents are irrelevant because they did not concern a regional haze regulation. Tu cson Power Br. at 15-16. The definition of “existing stationary facility” promulgated in 1980 was, however, carried forward into the Regional Haze Rule w ithout 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 conjunc tion with the Act a nd 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 (seeState Br. at 9, 24), the Guidelines are not binding in this case. They do, as EPA acknowledged, nonethel ess 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 ob liged to offer a reasonable explanation for declining to apply the Gu idelines’ 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 “int olerably mute” regarding its basis for disapproving the State’s conclusion thatSundt 4 was not BART-eligible, see State Br. at 34-35, and otherwise fully justifies EP A’s disapproval of thatdetermination. The State also asserts that EPA imprope rly failed to explain what the State views as a logical inconsistenc y: i.e., that if Sundt 4 were a larger facility and the Guidelines were therefore binding, Sundt4 would not (in the State’s view) be BART-eligible. State Br. at 28-29. EP A did not “explain” itself on this point because it was not raised in comments; t hus, 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 interpre t 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 partic ipate in the administrative process by “‘alert[ing] the agency to the [parties’] position and cont entions’ in order to allow the agency to give the i ssue meaningful consideration”) (citation omitted); see also N. Plains Res. Council, In c. 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) (onl y objections “raised with reasonable specificity during the period for public co mment” may be raised during judicial review). Had the State raised this point, EPA lik ely would have explained that if the Guidelines were binding on Sundt 4, EP A 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 whatit did here, i.e., reconcile these two provisions, guided by statutory and regul atory language and intent. In all likelihood, given the intent of the Guid elines’ reconstruction exemption and the ambiguity of the Guidelines with respect to reconstructed sources that had not gone through PSD review, the result woul d 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 b ecause the Guidelines state that “any” emission unit reconstructed after 1977 is no t BART-eligible, and “any” is typically read expansively. Tucson Power Br. at 12-13. As EP A explained in response to comments, however, this princi ple of interpretation applie s with equal force to the Regional Haze Rule, which defines BA RT-eligible sources to include “ any of [certain sources] of air pollutants, including anyreconstructed 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 Fe deral Register). This definition plainly includes Sundt 4, which was construc ted in 1964 and was still in existence in 1977. EPA went on to explain that to the ex tent the Guidelines’ reconstruction exemption is inconsistent w ith the Agency’s regulations, “it is the regulatory definition, not the BART Guid elines, which is binding on states and EPA.” 76 Fed. Reg. at 46,151. Tucson Power’s related contention th at Sundt 4 is not BART-eligible because it was not reconstructed between 1962 and 1977, Tu cson Power Br. at 13, ignores the plain language of the regulati on. 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 reme dies, “the preceding word ‘including’ makes it clear that the authorization is no t limited to the speci fied 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 em phasis on the fact that – as the Guidelines explicitly recognize – the Cl ean 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) informEPA’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. at75,720, 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 reconstructio n 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 Co ncerning Congressional Intent Have Been Waived, a nd in Any Event Lack Merit. The State makes much of the fact that “it was Congress itself which excluded reconstructed units such as S undt 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 co mments, and thus cannot raise it now. See

supraat 44-45. Had the State timely raised this issue, moreover, EPA would have explained that Congressional intent wa s 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 propositio n 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, in cluding BART, which it enacted only the year before adopting the Fuel Use Act. The State also compla ins 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 comme nts, EPA likely would have explained that this was precisely what Congress did for all major sources in ex istence 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, Congre ss exempted certain reconstructed sources from PSD requirements, but said nothing about their eligibility for BART . This silence should not be interpreted as a ta cit BART exemption of these sources.

19 

# Indeed, Tucson Power acknowledges that “Sundt Unit 4 remains subject to other CAA controls.” Tucson Po wer 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 Po wer’s objections to EPA’s careful contextual interpretation and application of the Act, the Regi onal Haze Rule, and the Guidelines lack merit, and are who lly insufficient to overcome the deference due EPA’s interpretations of the statute and the Agency’s own regulations. See

supraat 22-23. EPA’s disapproval of the Stat e’s determination that Sundt 4 is not BART-eligible should therefore be upheld. IV. EPA REASONABLY DISA PPROVED 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 supraat 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 anticip ated 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 sour ce is subject to BA RT, a State must ordinarily make a BART determ ination 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 individuali zed contributions of BART-eligible sources to determine whether each such s ource causes or contributes to visibility impairment. See 2011 SIP at 135, JA XX. As disc ussed in greater detail below, the State determined that (1) the Nels on Lime Plant was notsubject to BART because, in the State’s view, emissions from that plant fell below the threshold used to determine whether a BART-eligib le source causes or contributes to visibility impairment, and (2) the Hayden a nd Miami Smelters were not subject to BART for NO X

# because, according to the State’s calculations, neither facility had a potential to emit more than de minimis levels of NO X 

# . 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 determin e whether a source is subject to BART and that EPA is required to demonstrate th at the State’s original determination was arbitrary or capricious. See , e.g. , State Br. at 36, 38. For the reasons discussed

supraat 25-37, both of these assertions ar e 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 view ed in light of the high degree of deference due EPA’s statutory and regulatory interp retations and technical judgments, see

supraat 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 Nels on 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 inc onsistent use of modeling methodologies, and modeling results presen ted 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 c hose to assess the potential of BARTeligible sources to contribute to visib ility 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. Inst ead of disapproving Arizona’s unexplained threshold and all determinations based on th at threshold (as it would have been authorized to do), EPA c onducted 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 th at 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 visi bility 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 s howed a three-year 98 th

# 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 98 th

# percentile, modeled visibility impact rather than the highest modeled visibility impact. Using the 98 th

# percentile modeled impact captures sources that contribute to visibili ty impairment in a Class I area, while “minimizing the likelihood that the highe st modeled visibility impacts might be caused by unusual meteorology or conservative assumptions in the model.” 70 Fed. Reg. at 39,121. The 98 th

# 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 98 th

# percentile value. Seeid. 22

# IMPROVE refers to Intera gency 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 Estimati ng 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 thr ee-year average impact). Based on this three-year average value, the State concluded that th e 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 subj ect 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 thres hold – 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 so urce 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 explai ning its departure from its own chosen methodology. 201 1 SIP at 151-53, JA XX-XX. Speciation Data at 4, JA XX. The IMPR OVE 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 thre shold. EPA also used its expertise in visibility modeling (which is entitle d to significant deference, seesupraat 21-22) to assess the State’s decision to exclude the Nelson Lime Plant from a full BART analysis. This assessment took several f actors 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 th at “[t]o say that an estimate of 0.498 [deciviews] is definitively less than 0. 5 [deciviews] over burdens the modeling results.” 78 Fed. Reg. at 46,154. Sec ond, 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 98 th

# percentile visibility impact of 0.624 deciviews fo r Nelson Lime Plant in 2003). EPA explained that averaging 98 th 

# -percentile results across three years is not the standard approach, and that it is “le ss conservative than the FLM-recommended

23 

# For the Rillito Cement Plant, by contrast, the 98 th

# percentile visibility impact never exceeded 0.5 deciviews. See77 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 de termination for the Rillito Cement Plant and its disapproval of the State’s determin ation 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 98 th

# 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 diffe rent 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 threshol d 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 al so use the 98th percentile value as a threshold in the first-level visibility analyses for new sour ce impacts.”). EPA thus appropriately considered this guidance in reviewing th e 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 protec tion 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 appr oach 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 de veloped by the Western Regional Air Partnership (“WRAP”), Arizona determinedthe visibility impacts of individual sources by calculating the change in deci views 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 s ubject-to-BART modelin g 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 morepolluted, any individual source's

25 

# The Western Regional Air Partnership is a regional planning organization made up of state and tribal governments and fede ral agencies. It was established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in th e 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 be comes geometrically less”). Thus, the possibility of short-term spikes from wildfi res would, if anythi ng, 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 ambi ent air standards designed to protect human health” (the National Ambient Air Qu ality Standards, or “NAAQS”). State Br. at 43. As EPA explained in respons e to comments, however, the purpose of the 0.5 deciview threshold is simply to sc reen 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 aver age is not appropriate. See id. b. The refined modeling. The “refined” modeling submitted by the State employed the “revised IMPROVE equation” and show ed a three-year averag e impact from the Nelson Lime Plant of 0.460 deciviews. 2011 SIP at 152-53, Table 10.10, column 5, JA XX-XX; see supra53 n.22. For all of the reasons discussed in the preceding subsection, EPA reasonably concluded that the use of a three-y ear 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 Stat e explain why it relied on the revised IMPROVE equation only for this particular source. EPA previously advised States that, while either the old or re vised IMPROVE equation could be used for Regional Haze SIPs, the “methodology should be applied in a consistent manner,” Additional Regional Haze Questions (Gui dance) (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 ne w equation. The problem is, instead, that the State offered no justification for using that equation in the modeling for the Nelson Lime Plant, while con tinuing to apply the old equation to all other sources. In reviewing the SIP, EPA thus appropriate ly focused its review on the company’s original modeling results calculated in acc ordance 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 summar y 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 at4-5, JA XX-XX. Lhoist did Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 74 of 132 (83 of 141)

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# not identify the emissions inputs or backgr ound conditions used for this modeling, making it difficult for EPA to evaluate th e modeling results. 78 Fed. Reg. at 46,154. Lhoist also failed to include i ndividual year results, making it impossible for EPA to evaluate the twenty-second high est annual impact (which, as discussed

supraat 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 statem ent that it used “Method 8, Mode 5 in CALPOST, with all other aspects of th e CALPOST modeling an alysis staying the same.” Lhoist Comments at 4, JA XX ; State Br. at 40. “CALPOST” is a processing program for a model know n as “CALPUFF,” which EPA has determined is “the best regulatory mode ling application currently available for predicting a single source’s contribution to vi sibility impairment.” 70 Fed. Reg. at 39,162. Critically, the settings used for CALPOST processing ar e unrelated to the emission inputs or background conditio ns 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 di d 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)

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# information is critical to evaluating mode ling results, EPA reasonably declined to rely on Lhoist’s supplemental m odeling. 78 Fed. Reg. at 46,154. In sum, EPA reasonably concluded thatthe State’s determination that the Nelson Lime Plant was not subject to BART was based on an inconsistent approach and unpersuasive modeling. EPA’s disapprova l of that determination should therefore be upheld. B. EPA Reasonably Disapproved the State’s Determination that No BART Determin ation Was Required For NO X 

# For the Hayden and Miami Smelters. A State must consider emissions of SO 2 

# , NO X 

# , and particulate matter (“PM”) in determining whether a source is subj ect to BART. 78 Fe d. 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 supraat 50; 78 Fed. Reg. at 46,155. Even for a source that is subj ect to BART, however , a State need not make a BART determination for every po llutant 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 NO X 

# , 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)

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# Neither the 2011 SIP nor the 2 013 Supplement includes a BART determination for NO X

# 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 NO X 

# . See 77 Fed. Reg. at 75,721; 78 Fed. Reg. at 46,155 (H ayden Smelter); 77 Fe d. 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 la ck of a BART determination for NO X

# for the copper smelters also argued, however, that no such determination was required because the visibility impact of NO X

# emissions in isolation is below 0.5 deciviews.
See Arizona Department of Environmenta l 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 c opper smelters are not “subject to BART for
NO X 

# .” State Br. at 44; see generally id. at 44-48; Association Br. at 44-59. Neither argument has merit, and EPA’s di sapproval of the State’s determination that no BART analysis is required for NO X

# 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 NO X 

# . “Potential to emit” is defined as “the maximum capacity of a stationary source to emit a pollutant under its physic al 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)

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# § 51.301. Physical or operational li mitations 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 NO X 

# , a conclusion which – if supported – woul d mean that no BART determination for
NO X

# 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 Ai r Partnership identified an annual NO X 

# 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 (c iting Summary of WRAP RMC BART Modeling for Arizona, Draft #5, May 25, 2007). For th e Hayden Smelter, based on the NO X

# emission rate used by WRAP, the potential NO X

# 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 NO X

# [potential to emit] given the batch nature of the operations at the Hayden Smelte r,” EPA was unable to “identify any physical or operational limitations that w ould 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 “sour ce” 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)

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# BART-eligible source below the NO X 

# 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 NO X

# emissions are below de minimis threshold). Accordingly, EPA found that a NO X

# 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 NO X

# 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 analys is demonstrated that, historically, NO X 

# 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 pr oblem was not that the study was flawed;

27 

# This study addresses only the Miami Smelte r. 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 Smelte r has the potential to emit 78.9 tons per year of NO X 

# . 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)

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# rather, it was that it did not demonstrate that the Miami smelter’s potential to emit
NO X

# – not merely its history of NO X

# emissions – is below the de minimis threshold: [The study] did not identify any inhere nt physical or operational limitations to determine the [potential to emit] of NO X

# from the BART-eligible units, and did not identify legally and practi cally 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 agai n explained that neither FMMI nor the State had identified any inherentphysical or operational limitation for primary copper smelters, and that, “in th e absence of an enforceable limit on operations, the NO X

# [potential to emit] for the BA RT-eligible units at the Miami Smelter is greater than 40 [tons pe r year] and a BART analysis for NO X

# is required.” 78 Fed. Reg. at46,171. As EPA further e xplained, the absence of inherent physical or operational limitati ons distinguishes primary copper smelters from sources discussed in EPA guidance doc uments 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 res pond” to the analysis the State relied on, Association Br. at 26, 52, is thus re butted by the administrative record. Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 80 of 132 (89 of 141)

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# The State points out that the “batch process” copper sme lters cannot operate continuously, asserting that this undercuts EPA’s conclusion that the State failed to demonstrate that potential NO X

# 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 operationa l variable – for example, the size or number of batches processed ateither smelter could vary. Thus, in the absence of a federally enforceable limitation, potentia l to emit for batch operations should be calculated based on the “worst-case emissions based on the highest emitting combination of production cycl es.” 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 re flected 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 NO X 

# 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 Ha yden and Miami smelters emit pollutants that cause or contribute to visib ility impairment, as both facilities’ SO 2 

# emissions clearly exceed the 0.5 d eciview threshold. See State Br. at 47. The State and the Association nonetheless argue that these facilities are not “subj ect to BART for Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 81 of 132 (90 of 141)

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# NO X 

# ” because the modeled visibility impacts of their respective NO X

# emissions, viewed in isolation, are below 0.5 deciviews. See State Br. at 45-48; Association Br. at 19, 44-51. As EP A explained, however, [ O]nce a facility is determined to be subject to BART, the [Regional Haze Rule] allows for the exemp tion of specific pollutants from a BART analysis only if they are be low specified de minimis levels .[] Although a small pollutant-specific ba seline visibility impact may be informative in determining whatcontrol option may be BART, a BART analysis is still required for any pollutant that exceeds the de minimis threshold at an othe rwise subject-to-BART source

. 78 Fed. Reg. at 46,156 (emphasis added). Petitioners fail to demonstrate that EP A’s interpretation and application of the Regional Haze Rule is unreasonable. Initially, Petitioners launch a variety of arguments that have all been well rebu tted 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 supraat 23-25); and the claim that EPA cannot disapprove any aspectof 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 th e Regional Haze Rule and adopted the BART Guidelines. Associ ation 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)

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# distorts the meaning of these statements by taking them out of context. When EPA revised the Regional Haze Rule, it proposedto 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 th e Act can be read to requi re the States to make a determination as to the appropriate le vel 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 vi sibility 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 Associ ation 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 r ead 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 specifi c 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)

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# 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, th e State has not established that this exemption applies to either of the smelters. The Association also argues that th e 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 SO 2 

# 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 Ac t itself, sources that emit “any air pollutant” which may cause or contribute to visib ility 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 es tablish emission limitations for BARTeligible sources which may reasonably be anticipated to cause or contribute to regional haze; to do so, State must deve lop emission limits “which reflect the application of the best system of continuous emission reduction for each pollutant” emitted by a source subject to BART (empha sis added)). The sole exception to Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 84 of 132 (93 of 141)

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# this rule is the de minimis exemption, which as already discussed does not apply to
NO X

# emissions from the copper smelters. The Association’s related claim th at 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 limitedto those that emit the same amount of a given pollutant (e.g., NO X 

# ). See Association Br. at 49. The governing law, however, requires a BART determina tion for a facility that emits any air pollutant in amounts that exceed the applicable cau se-or-contribute threshold. All such facilities are treated alike, i. e. they are required to make BART determinations for pollutants emitted in ex cess of applicable de minimis levels. Finally, Petitioners point to the supp osed futility of a BART determination for NO X

# at the Hayden and Miami smelters. St ate Br. at 47; Association Br. at 19- 20, 25, 50-51. Both Petiti oners miss the point. Th e 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 NO X

# 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)

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# “based upon the small amount of anticipated visibility improvement from additional particulate c ontrols,” BART for PM 10

# at Hayden Smelter was no additional controls); 78 Fed. Reg. at 46,155 (finalizing pr oposed approval). The mere fact that controls may prove unwarranted is not, however, grounds for entirely refusing to conduct a BA RT determination for more-than- de minimis NO X 

# emissions from a facility that undisputed ly 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 purpo se of a BART analysis – i.e., to determine whether th e relevant factors support re quiring additional controls. In sum, the record supports EPA’s c onclusions that the copper smelters are subject to BART and that the St ate failed to demonstrate that NO X

# emissions from either facility are below the regulatory de minimis threshold. EPA disapproval of the State’s determination that neither of the copper smelters wa s subject to BART for NO X

# should therefore be upheld.

28 

# Nor, contrary to Petitioners’ assertions, did EPA state that further NO X

# controls were required at the smelters – only that an analysis of potential controls was required. See State Br. at 47; Associa tion Br. at 20, 45; compare 78 Fed. Reg. at 46,156 (finalizing disapproval of State co nclusion that no BART determination was required). Indeed, based upon its own five-factor BART analysis, EPA recently proposed to find that no additiona l controls were required for BART for NO X

# 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)

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# V. EPA REASONABLY DISAPPROVED THE STATE’S DETERMINATION THAT EXISTING CONTROLS AT THE COPPER SMELTERS CO NSTITUTE BART FOR SO 2 

# . In contrast to its finding that the c opper smelters were exempt from BART for NO X 

# , Arizona determined that both copper smelters were subject to BART for
SO 2 

# , 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 SO 2

# 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 degreeof reduction achievable through the application of the best system of con tinuous 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 cons ideration: (a) the costs of compliance; (b) the energy and nonair quality environm ental impacts of compliance; (c) any existing pollution controls in use at the s ource; (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)

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# For sources that are already subject to stringent controls, such as the Maximum Achievable Contro l Technology (“MACT”) st andards established under Section 112(d) of the Act, a state may “streamline the analysis by including a discussion of the MACT controls and wh ether 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 Secti on 111 of the Act (“NSPS”), should not be considered automatically to represen t 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 analys is, the State must set emission limitations representing BART and schedules for co mpliance 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 ca tegory. 42 U.S.C. § 7412(d)(3). 30

# New source performance standards are te chnology-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)

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# source. 40 C.F.R. § 51.308(e). Furtherm ore, the State must require each source subject to BART “to install and operate BA RT as expeditiously as practicable” and must ensure that control equipment re quired for compliance with BART emission limits is properly operated and maintain ed. 40 C.F.R. § 51.308(e)(1)(iv)-(v). EPA’s review of Arizona’s SO 2

# BART analyses and determinations for the copper smelters revealed that the State ha d failed to conduct an adequate analysis of potential control options and had faile d to promulgate enforceable emission limitations applicable to the entire BART source. Accordingly, EPA reasonably disapproved the State’s BARTdeterminations for SO 2

# 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 conduc t a five-factor analysis. In its Regional Haze SIP, Arizona adopted a seven-step process for conducting BART analyses, which included a se parate 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-t o-BART sources, Arizona followed this approach, separately analyzing each of th e 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 ‘stream lined’ analyses relying on Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 89 of 132 (98 of 141)

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# 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 dem onstrating 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 suppo rt those determinations. Id. Neither Arizona’s comments on EPA’s proposal nor the 201 3 Supplement included a five-factor analysis for SO 2 

# . EPA therefore concluded th at Arizona’s analyses were “inconsistent with the general statutory and regulatory requireme nt 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 an alysis for the copper smelters. See 78 Fed. Reg. at 46,157. The State simply i gnores 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 regulat ion mandates that SIPs expressly address Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 90 of 132 (99 of 141)

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# each BART factor individually for ever y 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 provision s 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” anal ysis 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 co ntrols, then no five-factor analysis would be necessary. See 70 Fed. Reg. at 39,165. EPA c oncluded that the State had not made this demonstration because the Stat e 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)

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# emission limits established in construc tion permits issued by state and local agencies, known as the RACT/BACT/LA ER Clearinghouse (“Clearinghouse”). 31 

# Based on this database, the State found th at no emission limitation or air pollution control devices had been approved for coppe r 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 info rmation 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 increas e conversion rates of SO 2

# to SO 3 

# in the acid plant, resulting in decreased SO 2

# emissions. 78 Fed. Reg. at 46,158 (citing publica tions regarding acid plant catalyst performance). Therefore, EPA concluded that Arizona“should have considered whether any such improvements could bemade at the Hayde n 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 “LAE R” refer to technology-ba sed standards established under the Act’s new source revi ew 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)

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# control available and to thus avoid pe rformance of a complete five-factor analysis.” Id. (citing BART Guidelines). The State and the Association assert th at 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 pollu tion 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. Howeve r, as EPA explained in response to similar comments on its proposal: . . . all sulfuric acid plants, whethe r 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 SO 2

# to sulfuric acid-- the same converters, catalyst, and absorbing towers. Also, all sulfuric acid plants utilize th e same pollution control technology.

. . . The efficacy of catalyst improveme nts is independent of whether the sulfuric acid plant is att ached 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 SO 2

# coming into the acid plant and the front-end equipment necessary to prepare the SO 2 

# -rich gas to be introduced to the converter. The commenters assert that there is variation in the concentration SO 2

# 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)

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# However, the fact that the Hayden a nd Miami Smelters successfully operate dual absorption sulfuric acid plants demonstrates that they can handle variations in SO 2

# concentration. So long as this is the case, these plants would be expected to achieve cost-effective SO 2

# emissions reductions through catalyst improvements. Id. EPA therefore reasonably concluded that it was unreasonable for the State “not to evaluate the emissions levels achiev ed at primary sulfuric acid plants in the
State’s SO 2

# BART analyses for the Hayden and Miami Smelters.” Id. Notably, EPA did not claim either th at 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 “interchangeab le for regulatory purposes,” Association Br. at 41. Rather, EPA f ound that primary sulfuric acid plants and metallurgical sulfuric acid plants are similar e nough 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 pr imary 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 technol ogical 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 th e 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 becau se the State “performed neither a full five-factor analysis nor an adeq uate streamlined analysis for SO 2

# 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 partic ular, Arizona attempted to av ail itself of the option of conducting a “streamlined” BA RT analysis -- an option found only in the BART Guidelines, not in the Act or th e 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) with70 Fed. Reg.at 39,163-64 (allowing for streamlined analyses under specific circumst ances). 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 fo r EPA to consider the Guidelines along with the statute and the Regional Haze Rule in reviewing those analyses. The State and the Association now asse rt 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. Petiti oners rely on an October 2011 advanced notice of proposed rulemaking (“Notice”) and its associated Technical Support Document (“TSD”), neither of which are inthe administrative record for the Rule.
See New Source Performance Standard s (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 ther efore been waived. See supraat 44-45. If the Notice had been raised in comme nts, EPA could have explained that it did not contradict EPA’s findings regardi ng Arizona’s BART analyses. While the Notice did identify the primary copper sme lter NSPS as one of several “potential candidates to not undergo review,” 76 Fe d. 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 a nd the Association’s characterizations, EPA Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 96 of 132 (105 of 141)

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# did not “review” the primary copper sme lter 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 cons tituted a “conclusion” that a “review of the currently available technologies woul d 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 availabl e for purposes of BART at specific facilities. While the Association notes th at “there is substantial textual and practical overlap between the factors th at EPA must consider when setting an NSPS and the factors that a State mustconsider when determining BART,” Association Br. at 31, these requirement s serve different purposes, and are based on different factors. BART determina tions 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 potentia l upgrades for purposes of BART. Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 97 of 132 (106 of 141)

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# In sum, EPA’s conclusion that the State conducted neithera complete fivefactor analysis nor an adequate streamlin ed analysis, and the Agency’s consequent disapproval of Arizona’s SO 2

# BART determinations fo r the copper smelters, are reasonably and fully supported by the ad ministrative record. EPA’s disapproval should therefore be upheld. B. The SIP Did Not Include Enfo rceable 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 ma intenance procedures, as well as monitoring, recordkeeping and reporting re quirements to ensure the enforceability of the State’s BART determinations at th e copper smelters. 77 Fed. Reg. at 75,725 (Miami), 75,726 (Hayden). As EPA expl ained, 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 “a ll regulatory requirements related to Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 98 of 132 (107 of 141)

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# monitoring, recordkeeping and reporting fo r 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 Sm elters' Title V permits, these provisions are not incorporated into the applicab le SIP. Likewise the SIP contains no compliance schedules or requirements or pr ocedures to ensure that the control equipment is properly operated and maintained.” 78 Fed. Reg. at 46,159. EPA therefore concluded that Arizona’s SO 2

# 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 comp liance provisions are needed because “the NSPS emission limit is independently enforceable under the CAA . . . and is also included as an enforceable cond ition of the smelters’ operating permits” Association Br. at 43. For the reasons di scussed in the preceding subsection, the State did not demonstrate that the NSPS for primary copper sm elters constitutes BART for the copper smelters. Even if it did, moreover, the smelters’ permits limit the applicability of the NSPS require ments 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 re quirements, 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) ar e 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 requ ired compliance provisions therefore is not based on a “‘preference for a differentdrafting 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 de signed to ensure the enforceability of SIP limits.

Monsanto sulfuric acid pl ant . . .” 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 aci d plant, but not the remainder of the plant’s emissions. ADEQ Title V Pe rmit 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 te rms 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 th e entire facilities, Title V permits last only for five years. See42 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)

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# 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 ac hieving natural visibility conditions” at “each mandatory Class I Federal area lo cated within [a] State.” 40 C.F.R. § 51.308(d)(1); see also 77 Fed. Reg. at 75,710 (dis cussing reasonable progress goals as “[t]he mechanism for ensuring c ontinuing progress towards achieving the natural visibility goal”). C ontrary 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’”). Stat es must consider the rate of progress needed to reach natural visibility conditions by 2064 (the “glide path”), as well as the emission re duction measures needed to achieve that rate of progress over th e 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 glid e path, that State mu st 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 Ha ze SIPs began with the baseline period of 2000 to 2004, 40 C.F.R. § 51.308(d)(2), and la sts 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)

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# C.F.R. § 51.308(d)(1)(ii). This demonstr ation, in turn, requires the State to consider four statutorily-mandated fact ors: (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), (i i); 77 Fed. Reg. at 75,710. A. EPA Reasonably Determined Th at 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 anal ysis 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 an alysis, to approve State’s conclusion that it is not reasonable to require additional SO 2

# controls on certain sources); see also 78 Fed. Reg. at 29,297 (p roposing to approve State finding that it was not reasonable to require additional contro ls 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 demonstrat e that overall progress goals falling short of the glide path were in fact reasonable: The State did not complete an ade quate analysis of the potential for reasonable controls from the area sources of NO X

# and SO 2 

# . While a number of source categories are listed in [the SIP], in the case of area sources, the state typically judged that it was t oo resource intensive to conduct the analysis. 77 Fed. Reg. at 75,728. The State similarl y failed to provide ad equate analysis of
NO X

# 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 St ate’s conclusions that (1) there are no reasonable controls for NO X

# or SO 2

# on area sources, and (2) there are no reasonable controls for point sources of NO X 

# . Id. Because the State had not demonstrated that there ar e 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 pro posal, 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 St ate had still failed to provide a fourfactor analysis of source categories re sponsible for the “vast majority” of NO X 

# emissions – emissions that the State itself had chosen to focus on for the relevant planning period. 78 Fed. Re g. at 29,300. EPA thus l acked a sufficient basis to change its proposed disapproval of the St ate’s conclusion that additional controls were not reasonable for sources of NO X

# and SO 2

# emissions and, hence, of the State’s progress goals. 37 

# 78 Fed. Reg. at 29,297. The State failed to provide any furthe r analysis, opting instead to fall back on the flexibility afforded states under th e Act and the Regional Haze Rule. 78 Fed. Reg. at 46,160. As EPA explaine d, however, “[w]hile the [Act ] and the [Regional Haze Rule] do provide consider able flexibility to states in setting [reasonable progress goals], they also pr ovide specific requirements that must be met in order for the [reasonable progr ess 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 SO 2

# and NO X 

# .[] [The State] then identified several categories of sources with significant NO X

# and SO 2

# emissions.[]

37 

# EPA did clarify that it was proposing to disapprove the State’s determination that additional controls for point sources of NO X

# and area sources of NO X

# and SO 2 

# 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)

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# 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 e xhaustive 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 “ca nnot be meaningfully adapted for the purposes of developing a four-factor anal ysis,” 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 recordthus flatly contradict s the State’s repeated assertion that EPA disapproved the State’s progress goals because the State did not conduct a “unit-by-unit” f our-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 th at 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 an alysis 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)

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# The State claims that EPA “failed to not e that this statement was made in the context of the State’s discussion of th e 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. at54-55, 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 th ey are free to omit a four-factor analysis entirely or to limit thatanalysis 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 extentthat the State refers to the four-factor analysis of the Phoenix Cement Company pl ant, 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)

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# The State has also failed to support its claim that its initial submission provided a “complete justificati on” 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 th e general level of this review of major source categories, [the State] has determin ed 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 comp leted by the next SIP submittal in 2016 and will contain a timetable fo r 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 thata “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 co mmitment to conduct such an evaluation in the future, does not fulfill the requirement fo r 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 a nd, if so, whether they will actually result in any reductions in NO X 

# . 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 cont ext 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 Th at The State’s Four-Factor Analysis Of Phoenix Cement Wa s Insufficient To Demonstrate That No Additional Controls Were Reasonable. In an effort to support its progre ss 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 c ontrols at Phoenix Cement were not warranted, explaining that the State’s assess ment of the cost of compliance and the

38 

# It is far from clear that any of the re quirements cited by the State in its SIP will result in additional reductions in NO X

# emissions. The NSPS apply only to new or modified sources. See 42 U.S.C. § 7411(a),(b). Se ction 112 standards address hazardous air pollutants, and are not intended to reduce NO X

# 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)

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# 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 explan ation 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 whic h 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 “significan tly 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 prop osed disapproval, EPA confirmed that the Control Cost Manual is not binding for purposes of a reasonable progress analysis; however, it (as well as the BA RT 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 reas onable and supported by appropriate documentation. Id. Phoenix Cement challenges EPA’s disappr oval 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 NO X 

# point sources that [the State] had identifie d as contributing to visibility impairment at the State’s Class I areas.” 78 Fed. Re g. 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 P hoenix 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 Ha ze Rule, the State must provide an adeq uate 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 a nother (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 in clude analysis of reasonable progress factors and supporting documentation for all required analyses). EPA’s conclusion that the State failed to adequately anal yze 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 explaine d 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 n ecessary 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 th e 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 calcu lation of the cost of compliance. The record demonstrates that Phoenix Cementis anticipated to operate for 50 more years, and EPA’s Control Cost Manual stat es 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 explana tion for assuming that the controls at issue would only operate for 10 years. 42 

# Phoenix Cement has, mo reover, failed to support its assertion that EPA’s statements concerning its basis for disapproving the State’s determinations regarding Phoenix Cement in particular, a nd the State’s progress goals in general, were somehow “pretextual.” Phoe nix 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 an alysis required by the Act and the Regional

42 

# Phoenix Cement’s argument concerning EP A’s use of the Control Cost Manual, Phoenix Cement Br. at 21-23, is decide dly opaque. Phoenix Cement’s repeated references to Iowa Le ague of Cities v. EPA , 711 F.3d 844 (8 th

# Cir. 2013) suggest, however, that Phoenix Cement’s central po int 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 supraat 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 (citi ng Najmabadi v. Holder , 597 F.3d 983, 990 (9 th

# Cir. 2010) (discussing standard of review Court of Appeals applies to findings by Board of Immigration Appeals); compare supraat 10-11, 86-87 (discussing statute and regulations governing reasonable progres s determinations). Nor did EPA disapprove the State’s findings simply becau se 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 i ndependent 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 inconsiste nt with the administrative record. See 78 Fed. Reg. at 29,299-300; 78 Fed. Reg. at 46,170. C. EPA Reasonably Concluded Th at 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 Stat e’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, fi nds no support in the administrative record. The g lide 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 ov er 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 wo uld 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. at29,299. 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 ba sis in the record, that “with new air quality regulations incorporated into Ar izona’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 potentialcontrols that the State says it will conduct at some point in the future. State Br. at 53; 201 3 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 doe s 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 alreadyfactored into the State’s existing progress goals because they were “on th e books” at the time that the modeling underlying those goals was pe rformed 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 at5, JA XX (overview of emissions included in the CMAQ modeling). The State now seeks to improperly double count those reductions by suggesting thatthey 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 iden tified 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 pursuantto 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 prepar ed in a proportionally spaced typeface using Microsoft Word in Times New Ro man 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 th e foregoing Brief of Respondent EPA, under cover of the accompanying Unopposed Moti on For Enlargement Of Brief Size, have been served through the Court’s CM /ECF system on all registered counsel this 18 th

# 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- Page 904 § 7410 

## 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 

## 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 

## 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 

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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 

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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 

## 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 

## Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 128 of 132 (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 

## Case: 13-73383 04/18/2014 ID: 9063689 DktEntry: 33-3 Page: 129 of 132 (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 

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### § 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, 

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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 

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