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Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best 

Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, and 

Federal Implementation Plans 

Beginning on page 4 of file name: EO12866_BTB_2060-AR-05_Final_FRN 

20121418_REDLINE_5_23_12_ALTERNATE 

Changes as a result of 5/24/12 conference call are highlighted and redlined. 

II. Background and General Legal Considerations for the EPA’s Final Action 

A. Background

Section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such 

measures as may be necessary to make reasonable progress towards the natural visibility goal, 

including a requirement that certain categories of existing major stationary sources built between 

1962 and 1977 procure, install, and operate BART as determined by the state.1

 Under the 

Regional Haze Rule, states are directed to conduct BART determinations for such “BARTeligible” sources that may be anticipated to cause or contribute to any visibility impairment in a 

Class I area. Rather than requiring source-specific BART controls, states also have the flexibility 

to adopt an emissions trading program or other alternative program as long as the alternative 

provides greater reasonable progress towards improving visibility than BART. 40 CFR 

§51.308(e)(2). The EPA provided states with this flexibility in the Regional Haze Rule, adopted 

in 1999, and further refined the criteria for assessing whether an alternative program provides for 

greater reasonable progress in three subsequent rulemakings. 64 FR 35714 (July 1, 1999); 70 FR 

39104 (July 6, 2005); 71 FR 60612 (October 13, 2006). These criteria are described below. 

 

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 The preamble to the proposed rule provides additional background on the visibility 

requirements of the Clean Air Act and the EPA’s Regional Haze Rule. 76 FR 82221-22. 
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 1. Criteria for Developing an Alternative Program to BART 

 Specific criteria for determining if an alternative measure achieves greater reasonable 

progress than source-specific BART are set out in the Regional Haze Rule at §51.308(e)(3).2

 The 

“better-than-BART” test may be satisfied as follows: If the distribution of emissions is not 

substantially different than under BART, and the alternative measure results in greater emission 

reductions, then the alternative measure may be deemed to achieve greater reasonable progress. 

If the distribution of emissions is significantly different, then states are directed to conduct an air 

quality modeling study to determine differences in visibility between BART and the alternative 

program for each impacted Class I area for the worst and best 20 percent of days.3 A test with the 

following two criteria (the “two-pronged visibility test”) The two-pronged visibility test would 

demonstrate “greater reasonable progress” under the alternative program if both prongs of the 

test of the following criteria are met: 

- Visibility does not decline in any Class I area4, and 

- There is an overall improvement in visibility, determined by comparing the average 

differences between BART and the alternative over all affected Class I areas. 

 2. What is the relationship between BART and CAIR? 

 

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 The Regional Haze Rule also allows for a demonstration that an alternative program provides 

for greater reasonable progress to be based on the clear weight of evidence. 40 CFR § 

51.308(e)(2)(E). We concluded that a more general test may be appropriate in certain 

circumstances, such as where, for example, technical or data limitations limit the ability of a state 

(or the EPA) to undertake a robust comparison using the test set out in 40 CFR § 51.308(e)(3). 

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 While the Regional Haze Rule directs the state to conduct the air quality modeling study, as 

described in section III.C.2, the EPA itself conducted such a study for CAIR and through a 

notice-and-comment rulemaking codified the conclusion that the stated criteria were met by 

adding specific provisions allowing the use of CAIR in lieu of source-specific BART. We have 

now done the same for the Transport Rule. 

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 The “decline” is relative to modeled future baseline visibility conditions in the absence of any 

BART or alternative program control requirements. 
3

 In May 2005, the EPA published CAIR, which required 28 states and the District of 

Columbia to reduce emissions of SO2 and NOX that significantly contribute to, or interfere with 

maintenance of, the 1997 national ambient air quality standards (NAAQS) for fine particulates 

and/or ozone in any downwind state. The CAIR established emission budgets for SO2 and NOX

for states that contribute significantly to nonattainment in downwind states and required the 

significantly contributing states to submit SIP revisions that implemented these budgets. Because 

such SIP revisions were already overdue, the EPA subsequently promulgated CAIR FIPs for the 

affected states establishing cap and trade programs for EGUs with opt-in provisions for other 

sources. States had the flexibility to subsequently adopt SIP revisions mirroring CAIR 

requirements or otherwise providing emission reductions sufficient to address interference with 

attainment or maintenance of the NAAQS in other states. Many affected states adopted CAIRmirroring SIPs, while others chose to remain under CAIR FIPs. 

 As noted above, the Regional Haze Rule allows states to implement an alternative 

program in lieu of BART so long as the alternative program has been demonstrated to achieve 

greater reasonable progress toward the national visibility goal than would BART. The EPA made 

just such a demonstration for CAIR in revisions to the regional haze program made in 2005. 70 

FR 39104. In those revisions, we amended our regulations to provide that states participating in 

the CAIR cap-and-trade programs under 40 CFR part 96 pursuant to an EPA-approved CAIR 

SIP or states that remain subject to the a CAIR FIP in 40 CFR part 97 need not require affected 

BART-eligible EGUs to install, operate, and maintain BART for emissions of SO2 and NOX. 40 

CFR 51.308(e)(4). In Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (DC Cir. 2006), the 

court upheld our determination that states could rely on CAIR as an alternative program to 

BART for EGUs in the CAIR-affected states. The court concluded that the EPA’s test for 

Comment [MarthaK1]: Delete highlighted text 

and move it to section B.1 “Authority for Trading 

Program”. (page 7 of this document) 
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determining whether an alternative program achieves greater reasonable progress was a 

reasonable one. Id At 1340. The court also concluded that nothing in the Clean Air Act required 

the EPA to “impose a separate technology mandate for sources whose emissions affect Class I 

areas, rather than piggy-backing on solutions devised under other statutory categories.” Id.

 As a result of our determination that CAIR was “better-than-BART,” a number of states 

in the CAIR region, fully consistent with our regulations, relied on the CAIR cap-and-trade 

programs as an alternative to BART for EGU emissions of SO2 and NOX in designing their 

regional haze implementation plans. These states also relied on CAIR as an element of a longterm strategy for achieving their reasonable progress goals for their regional haze programs. 

3. Remand of CAIR and Implications for State Regional Haze Implementation Plans 

 Following our determination in 2005 that CAIR was “better-than-BART,” the D.C. 

Circuit Court ruled on several petitions for review challenging CAIR on various grounds. As a 

result of this litigation, the D.C. Circuit Court remanded CAIR to the EPA but later decided not 

to vacate the rule.5

 The court thereby left CAIR and CAIR SIPs and FIPs in place in order to 

“temporarily preserve the environmental values covered by CAIR” until the EPA replaced it with 

a rule consistent with the court's opinion. 550 F.3d at 1178. The EPA replaced CAIR with the 

Transport Rule, which was published in the Federal Register on August 8, 2011.6

 The EPA 

expects that the requirements of the Transport Rule, which are currently stayed pending the 

outcome of litigation, will take effect in advance of 2018, the date by which all necessary 

emission reductions must take place for a BART alternative program. See 40 CFR 

51.308(e)(2)(iii). the 2018 deadline for any BART alternative program. As promulgated, the 

 

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 See North Carolina v. EPA, 531 F.3d 896; modified by 550 F.3d 1176 (D.C. Cir. 2008). 

6

 See Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter 

and Ozone. 76 FR 48208. 
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Transport Rule would have addressed emissions in 2012 and later years and would have left the 

requirements of CAIR and the CAIR FIPs in place to address emissions through the end of 

2011.In the interim period before the Transport Rule takes effect, the CAIR and the CAIR FIPs 

were to remain in place to address emissions through the end of the 2011 control periods. The 

D.C. Circuit, however, on December 30, 2011, stayed the Transport Rule (including the 

provisions that would have sunset CAIR and the CAIR FIPs) and instructed the EPA to continue 

to administer CAIR pending the outcome of the court’s decision on numerous the petitions for 

review challenging the Transport Rule. EME Homer City v. EPA, No. 11-1302 (Order). 

Many states relied on CAIR as an alternative to BART for SO2 and NOX for subject 

EGUs, as allowed under the then-current BART provisions at 40 CFR 51.308(e)(4). These states 

also relied on the improvement in visibility expected to result from controls planned or already 

installed on sources in order to meet CAIR provisions in developing their long-term visibility 

strategy. In addition, many states relied upon their own CAIR SIPs or the CAIR FIPs for their 

states as legal justification for these planned controls and consequently did not include separate 

enforceable measures in their long-term strategies (a required element of a regional haze SIP 

submission) to ensure these EGU reductions. These states also submitted demonstrations 

showing that no additional controls on EGUs beyond CAIR would be reasonable for the first 10-

year implementation period of the regional haze program. 

In summary, many of the states in the CAIR-affected region have based a number of 

required elements of their regional haze programs on CAIR. However, as CAIR has been 

remanded and only remains in place temporarily, we cannot fully approve these regional haze 

SIP revisions that have relied on the now-temporary reductions from CAIR. Although CAIR is 

currently in effect as a result of the Order by the EME Homer City court staying the Transport 
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Rule, this does not affect the substance of the D.C. Circuit’s ruling in 2008 remanding CAIR to 

the EPA.Although CAIR is currently in place, as a result of the Order by the EME Homer 

Generation court, this does not affect the court’s ruling remanding CAIR to the EPA.

 4. The Transport Rule and Regional Haze SIPs 

 The Transport Rule as promulgated, would have will sunset CAIR and the CAIR FIPs at 

the end of 2011.once the Transport Rule comes into effect. The Transport Rule, as promulgated, 

requires 28 states in the eastern half of the United States to significantly improve air quality by 

reducing EGU SO2 and NOX emissions that cross state lines and contribute to ground-level 

ozone and/or fine particle pollution in other states. The rule allows allowance trading among 

covered sources, utilizing an allowance market infrastructure modeled after existing allowance 

trading programs. The Transport Rule allows sources to trade emissions allowances with other 

sources within the same program (e.g., ozone season NOX) in the same or different states, while 

firmly constraining any emissions shifting that may occur by establishing an emission ceiling for 

each state. 

 In our proposal, we described a technical analysis that we conducted to determine 

whether compliance with the Transport Rule would satisfy regional haze BART-related 

requirements. This technical analysis is the basis of this final action in which we are finalizing 

our determination that the Transport Rule achieves greater reasonable progress towards the 

national goal of achieving natural visibility conditions than source-specific BART. For this final 

rule, an updated sensitivity analysis was conducted to account for subsequent revisions to certain 

state budgets in the Transport Rule. This analysis is described in section III.B.4 of this notice.

B. Summary of the EPA Response to General and Legal Issues Raised in Public Comments
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The EPA has based its determination that the Transport Rule will achieve greater 

reasonable progress than BART on the approach used by the EPA in evaluating whether a 

similar program, CAIR, would satisfy the regional haze BART-related requirements. As noted 

above, the Regional Haze Rule, promulgated in 1999, provides states with the flexibility to adopt 

an emissions trading program rather than requiring source-by-source BART. 40 CFR § 

51.308(e)(2). Some commenters supported our general approach and agreed that the Transport 

Rule will provide for greater reasonable progress. Other commenters, however, disagreed with 

our conclusion that the Transport Rule can be used as an alternative to BART. These 

commenters argued that we lack authority to make such a determination and that we cannot rely 

on the Transport Rule because of the current stay of that rule, and that the Transport Rule does 

not meet the necessary regulatory requirements for an alternative program in lieu of BART. 

Some commenters argued that we could not conclude that the Transport Rule provides for 

greater reasonable progress without considering each state’s reasonable progress goals. Other 

commenters took the position that we should fully approve the regional haze SIPs that relied on 

CAIR to satisfy certain regional haze requirements and that our proposed limited disapproval of 

the regional haze SIPs was unnecessary. 

 1. Authority for an Alternative Trading Program 

As described above, in 2005 (70 FR 39104) the EPA amended its Regional Haze Rule to 

provide that states participating in the CAIR cap-and-trade programs need not require affected 

BART-eligible EGUs to install, operate and maintain BART for emissions of SO2 and NOX. 40 

CFR 51.308(e)(4). As EPA noted in explaining its reasons for adopting this approach, “[nothing] 

in the CAA or relevant case law prohibits a State from considering emissions reductions required 

to meet other CAA requirements when determining whether source-by-source BART controls 
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are necessary to make reasonable progress. Whatever the origin of the emission reduction 

requirement, the relevant question for BART purposes is whether the alternative program makes 

greater reasonable progress.” 70 FR at 39143. 

The EPA’s authority to establish non-BART alternatives in the regional haze program 

and the specific methodology outlined above for assessing such alternatives have been 

previously challenged and upheld by the D.C. Circuit. In the first case challenging the provisions 

in the Regional Haze Rule allowing for states to adopt alternative programs in lieu of BART, the 

court affirmed our interpretation of CAA section 169A(b)(2) as allowing for alternatives to 

BART where those alternatives will result in greater reasonable progress than BART. Center for 

Energy and Economic Development v. EPA, 398 F.3d 653, 660 (D.C. Cir. 2005) (“CEED”) 

(finding reasonable the EPA’s interpretation of CAA section 169(a)(2) as requiring BART only 

as necessary to make reasonable progress). In the second case, Utility Air Regulatory Group v. 

EPA, 471 F.3d 1333 (D.C. Cir. 2006) (“UARG”), the court specifically upheld our determination 

that states could rely on CAIR as an alternative program to BART for EGUs in the CAIRaffected states. The court concluded that the EPA’s two-pronged test for determining whether an 

alternative program achieves greater reasonable progress was a reasonable one and also agreed 

with EPA that nothing in the CAA required the EPA to “impose a separate technology mandate 

for sources whose emissions affect Class I areas, rather than piggy-backing on solutions devised 

under other statutory categories, where such solutions meet the statutory requirements.” Id. at 

1340.

 Notwithstanding the decisions of the D.C. Circuit, several commenters argued that the 

plain language of the CAA precludes the EPA from allowing an alternative to BART. In their 

comments, these groups claimed that there is no statutory authority to exempt a source from 
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BART, except as provided for in CAA §169A(c). Under the interpretation of the CAA urged by 

these commenters, BART must be required at each BART source that causes or contributes to 

visibility impairment at any Class I area. The commenters point to recent decisions post-dating 

CEED and UARG in support of their arguments. 

 The commenters’’s arguments that the plain language of the CAA precludes reliance on 

the Transport Rule to satisfy the BART requirements were raised in UARG v. EPA and rejected 

by the D.C. Circuit when it denied the petitions for review of the EPA’s determination that CAIR 

provided for greater reasonable progress than BART. While the commenter argues that the 

court’s decision “has been undermined by subsequent D.C. Circuit decisions,” we disagree. The 

decisions cited by the commenter, North Carolina v. EPA, 531 F.3d 896, 906-08 (D.C. Circ. 

2008) and NRDC v. EPA, 571 F.3d 1245, 1255-58 (D.C. Cir. 2009) address the requirements of 

sections 110(a)(2)(D)(i)(I) and 172(c)(1), respectively. Given the differences between the 

language of these statutory provisions and that of section 169A(b)(2), the courts’ interpretation 

of these other provisions of the CAA do not undermine the two previous rulings of the D.C. 

Circuit interpreting the visibility provisions of the Act. Similarly, the Supreme Court’s 

conclusions in Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007) regarding the meanings of 

“each” and “any” do not conflict with or impact the EPA’s reading of section 169A(b)(2) of the 

CAA or the D.C. Circuit’s conclusion that the agency’s interpretation of the statute is a 

reasonable one. As the CEED court explained, the EPA interprets this provision to mean that 

“each SIP’s ‘emission limits, schedules of compliance, and other measures’ must ‘include’ 

BART only ‘as may be necessary to make reasonable progress toward’ national visibility goals.” 

398 F.3d 653, quoting 42 U.S.C. § 7491(b)(2); see also Central Arizona Water Conservation 

District v. EPA, 990 F.2d 1531, 1543 (9th Cir. 1993)(upholding the same interpretation of section 
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169A(b)(2)). We do not agree, therefore, that the EPA’s regulations allowing for the adoption of 

a trading program that provides for greater reasonable progress than BART in place of sourcespecific BART are inconsistent with the CAA. 

 Theseis commenters also argues that the EPA can exempt sources from BART only if the 

EPA complies with the requirements of CAA § 169A(c)(1). This provision of the CAA allows 

the EPA to exempt a source from the BART requirements, by rule, upon a determination that the 

source is not reasonably anticipated to cause or contribute to significant visibility impairment. As 

the commenters note, the appropriate Federal Land Manager(s) must agree with the exemption 

before it can go into effect. 

 We do not agree that the provisions governing exemptions to BART apply to our 

determination that the Transport Rule will make greater reasonable progress than BART. Section 

169A(b)(2) of the CAA requires each visibility SIP to contain “such emission limits, schedules 

of compliance and other measures as may be necessary to make reasonable progress toward the 

national goal...including...a requirement that [certain major stationary sources]...procure, 

install, and operate...[BART].” Based on this language, in 1999, the EPA concluded that if an 

alternative program can be shown to make greater reasonable progress toward eliminating or 

reducing visibility impairment, then installing BART for the purpose of making reasonable 

progress toward the national goal is no longer necessary. This interpretation of the visibility 

provisions of the CAA has been upheld three times by the courts, as noted above. 

 We also received a comments arguing that the EPA cannot rely on the Transport Rule as 

an alternative to BART because the emission reductions do not meet the requirement of 40 CFR 

51.308(e)(2)(iv) which provides . This regulatory provision requires that “the emission 

reductions resulting from the emissions trading program ...will be surplus to those reductions 
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resulting from measures adopted to meet requirements of the CAA as of the baseline date of the 

SIP.” 

 We do not agree with the comments that the emissions reductions resulting from the 

Transport Rule must be “surplus to those measures adopted to meet requirements of the CAA as 

of the baseline date of the SIP.” We note that the requirements of 40 CFR 51.308(e)(2) are not 

directly applicable to this action, as the special provisions in the Regional Haze Rule addressing 

the Transport Rule are codified at 40 CFR 51.308(e)(4). Nonetheless, our determination that the 

Transport Rule will result in greater visibility improvement than BART is fully consistent with 

the requirement in 308(e)(2)(iv). In promulgating the Regional Haze Rule in 1999, the EPA 

explained that the “baseline date of the SIP” in this context means “the date of the emissions 

inventories on which the SIP relies,” 64 FR 35742, which is “defined as 2002 for regional haze 

purposes,” 70 FR 39143. Any measure adopted after 2002 is accordingly “surplus” under 40 

CFR 51.308(e)(2)(iv). This is consistent with the discussion in the preamble to the 1999 

Regional Haze Rule indicating that the regional haze program “is being promulgated in a manner 

that facilitates integration of emission management strategies for regional haze with the 

implementation of programs for [the 1997 ozone and PM2.5] NAAQS.” 64 FR 35719. The EPA 

took this approach in the Regional Haze Rule to allow measures needed to attain the then new 

NAAQS to be “counted” as making “reasonable progress” toward the visibility goal. The 

Transport Rule was adopted to help areas come into attainment with and maintain the 1997 

ozone and PM NAAQS, as well as the 2006 24-hour PM2.5 NAAQS. The EPA accordingly does 

not view the requirement in 308(e)(2)(iv) as limiting our ability to demonstrate that the Transport 

Rule reductions are surplus, as defined in the Regional Haze Rule.