25184 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51

[FRL–7653–6] 

RIN 2060–AJ31

Regional Haze Regulations and 

Guidelines for Best Available Retrofit 

Technology (BART) Determinations

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: On July 1, 1999, EPA 

promulgated regulations to address 

regional haze, (64 FR 3714). These 

regulations were challenged, and on 

May 24, 2002, the U.S. Court of Appeals 

for the District of Columbia Circuit 

issued a ruling vacating the regional 

haze rule in part and sustaining it in 

part. American Corn Growers Ass’n v. 

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

Today’s proposed rule addresses the 

court’s ruling in that case. 

In addition, prior to the court’s 

decision, EPA had proposed guidelines 

for implementation of the best available 

retrofit technology (BART) requirements 

under the regional haze rule, (66 FR 

38108; July 20, 2001). The proposed 

guidelines were intended to clarify the 

requirements of the regional haze rule’s 

BART provisions. We proposed to add 

the guidelines and also proposed to add 

regulatory text requiring that these 

guidelines be used for addressing BART 

determinations under the regional haze 

rule. In addition, we proposed one 

revision to guidelines issued in 1980 for 

facilities contributing to ‘‘reasonably 

attributable’’ visibility impairment. 

In the American Corn Growers case, 

the court vacated and remanded the 

BART provisions of the regional haze 

rule. To respond to the court’s ruling, 

we are proposing new BART provisions 

and reproposing the BART guidelines. 

The American Corn Growers court also 

remanded to the Agency its decision to 

extend the deadline for the submittal of 

regional haze plans. Subsequently, 

Congress amended the deadlines for 

regional haze plans (Consolidated 

Appropriations Act for Fiscal Year 2004, 

Public Law 108–199, January 23, 2004). 

We are proposing to amend the rule to 

conform to the new statutory deadlines.

DATES: Comments on this proposal must 

be received by July 6, 2004.

ADDRESSES: Submit your comments, 

identified by Docket ID No. OAR–2002–

0076 by one of the following methods: 

Federal eRulemaking Portal: http://

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

Agency Web site: http://www.epa.gov/

edocket. EDOCKET, EPA’s electronic 

public docket and comment system, is 

EPA’s preferred method for receiving 

comments. Follow the on-line 

instructions for submitting comments. 

E-mail: http://www.epa.gov/edocket.

Fax: 202–566–1741. 

Mail: OAR Docket, Environmental 

Protection Agency, Mailcode: B102, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. Please include a 

total of 2 copies. 

Hand Delivery: EPA/DC, EPA West, 

Room B102, 1301 Constitution Ave., 

NW., Washington, DC. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. OAR–2002–0076. EPA’s 

policy is that all comments received 

will be included in the public docket 

without change and may be made 

available online at http://www.epa.gov/

edocket, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the federal 

regulations.gov Web sites are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit 

EDOCKET on-line or see the Federal 

Register of May 31, 2002 (67 FR 38102). 

For additional instructions on 

submitting comments, go to unit II of 

the SUPPLEMENTARY INFORMATION section 

of this document. 

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at the OAR Docket, EPA/DC, EPA 

West, Room B102, 1301 Constitution 

Ave., NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the OAR Docket is (202) 

566–1742.

FOR FURTHER INFORMATION CONTACT:

Kathy Kaufman at 919–541–0102 or by 

e-mail at Kaufman.Kathy@epa.gov or 

Todd Hawes at 919–541–5591 or by email Hawes.Todd@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Regulated Entities 

The promulgation of the proposed 

rule would affect the following: State 

and local permitting authorities and 

Indian Tribes containing major 

stationary sources of pollution affecting 

visibility in federally protected scenic 

areas.

This list is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This list gives 

examples of the types of entities EPA is 

now aware could potentially be 

regulated by this action. Other types of 

entities not listed could also be affected. 

To determine whether your facility, 

company, business, organization, etc., is 

regulated by this action, you should 

examine the applicability criteria in Part 

II of this preamble. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

II. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through EDOCKET, 

regulations.gov or e-mail. Clearly mark 

the part or all of the information that 

you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25185

1See, e.g., CAA Section 169A(a)(1).

is claimed as CBI). In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

A. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

B. Follow directions—The agency 

may ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

C. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

D. Describe any assumptions and 

provide any technical information and/

or data that you used. 

E. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

F. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

G. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

H. Make sure to submit your 

comments by the comment period 

deadline identified. 

Outline. The contents of today’s 

preamble are listed in the following 

outline.

I. Overview of Today’s Proposed Actions 

II. Background 

A. Regional Haze Rule 

B. Partial Remand of the Regional Haze 

Rule in American Corn Growers 

C. Proposed Changes to the Visibility 

Regulations 

D. Reproposal of the BART Guidelines 

III. Detailed Discussion of Reproposed BART 

Guidelines 

A. Introduction 

B. How to Identify BART-eligible Sources 

C. How to Determine Which BART-eligible 

Sources are Subject to BART 

D. The BART Determination Process 

E. Trading Program Guidance 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations

I. Overview of Today’s Proposed 

Actions 

Today’s rulemaking provides for the 

following proposed changes to the 

regional haze regulations: 

(1) Revised regulatory text in response 

to the American Corn Growers court’s 

remand, to require that the BART 

determination includes an analysis of 

the degree of visibility improvement 

resulting from the use of control 

technology at each source subject to 

BART, 

(2) revised regulatory text in 40 CFR 

51.308(b) and deletion of 40 CFR 

51.308(c) Options for regional planning 

in response to Congressional legislation 

amending the deadlines for submittal of 

regional haze implementation plans. 

This provision had provided for an 

alternative process for States to submit 

regional haze implementation plans in 

attainment areas, 

(3) BART guidelines, contained in a 

new appendix Y to 40 CFR part 51, 

(4) new and revised regulatory text, to 

be added to 40 CFR 51.308(e) to require 

the use of appendix Y in establishing 

BART emission limits, and 

(5) revised regulatory language at 

51.302 to clarify the relationship 

between New Source Performance 

Standards (NSPS) and BART for 

reasonably attributable visibility 

impairment.

How This Preamble Is Structured. 

Section II provides background on the 

regional haze rule, the D.C. Circuit 

Court decision which remanded parts of 

the rule, and the proposed changes to 

the rule and reproposal of the BART 

guidelines in response to the remand. 

Section III discusses in more detail the 

reproposed BART guidelines, including 

changes from the July 2001 proposal 

based the court decision and certain 

comments that we received on the 

initial proposal. Section IV provides a 

discussion of how this rulemaking 

complies with the requirements of 

Statutory and Executive Order Reviews. 

II. Background 

A. Regional Haze Rule 

In 1999, we published a final rule to 

address a type of visibility impairment 

known as regional haze (64 FR 35714; 

July 1, 1999). The regional haze rule 

requires States to submit 

implementation plans (SIPs) to address 

regional haze visibility impairment in 

156 Federally-protected parks and 

wilderness areas. These 156 scenic areas 

are called ‘‘mandatory Class I Federal 

areas’’ in the Clean Air Act (CAA),1 but 

are referred to simply as ‘‘Class I areas’’

in today’s rulemaking. The 1999 rule 

was issued to fulfill a long-standing EPA 

commitment to address regional haze 

under the authority and requirements of 

sections 169A and 169B of the CAA.

As required by the CAA, we included 

in the final regional haze rule a 

requirement for BART for certain large 

stationary sources that were put in place 

between 1962 and 1977. We discussed 

these requirements in detail in the 

preamble to the final rule (64 FR 35737–

35743). The regulatory requirements for 

BART were codified at 40 CFR 

51.308(e), and in definitions that appear 

in 40 CFR 51.301. 

The CAA, in sections 169A(b)(2)(A) 

and in 169A(g)(7), uses the term ‘‘major 

stationary source’’ to describe those 

sources that are the focus of the BART 

requirement. To avoid confusion with 

other CAA requirements which also use 

the term ‘‘major stationary source’’ to 

refer to a somewhat different population 

of sources, the regional haze rule uses 

the term ‘‘BART-eligible source’’ to 

describe these sources. The BARTeligible sources are those sources which 

have the potential to emit 250 tons or 

more of a visibility-impairing air 

pollutant, were put in place between 

August 7, 1962 and August 7, 1977, and 

whose operations fall within one or 

more of 26 specifically listed source 

categories. Under the CAA, BART is 

required for any BART-eligible source 

which ‘‘emits any air pollutant which 

may reasonably be anticipated to cause 

or contribute to any impairment of 

visibility in any such area.’’

Accordingly, for stationary sources 

meeting these criteria, States must 

address the BART requirement when 

they develop their regional haze SIPs. 

Section 169A(g)(7) of the CAA 

requires that States must consider the 

following factors in making BART 

determinations: 

(1) The costs of compliance, 

(2) The energy and nonair quality 

environmental impacts of compliance, 

(3) Any existing pollution control 

technology in use at the source, 

(4) The remaining useful life of the 

source, and 

(5) The degree of improvement in 

visibility which may reasonably be 

25186 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

2CAA Sections 169A(b)(2) and (g)(7).

3See 66 FR 35737–35743 for a discussion of the 

rationale for the BART requirements in the 1999 

regional haze rule.

anticipated to result from the use of 

such technology. 

These statutory factors for BART were 

codified at 40 CFR 51.308(e)(1)(ii). 

In the preamble to the regional haze 

rule, we committed to issuing further 

guidelines to clarify the requirements of 

the BART provision. The purpose of this 

proposed rulemaking is to fulfill this 

commitment by providing guidelines for 

States to use in identifying their BARTeligible sources, in identifying which of 

those sources must undergo a detailed 

BART analysis (i.e., which are ‘‘sources 

subject to BART’’), and in conducting 

the technical analysis of possible 

controls in light of the statutory factors 

listed above (‘‘the BART 

determination’’). 

B. Partial Remand of the Regional Haze 

Rule in American Corn Growers 

In response to challenges to the 

regional haze rule by various 

petitioners, the D.C. Circuit in American 

Corn Growers et al. v. EPA, 291 F.3d 1 

(2002) issued a ruling striking down the 

regional haze rule in part, and 

upholding it in part. This section 

discusses the court’s opinion in that 

case, as background for the discussion 

of specific changes to the regional haze 

rule and the BART guidelines presented 

in the next two sections, respectively. 

We explained in the preamble to the 

1999 regional haze rule that the BART 

requirements in section 169A(b)(2)(A) of 

the CAA demonstrate Congress’ intent 

to focus attention directly on the 

problem of pollution from a specific set 

of existing sources (64 FR 35737). The 

CAA requires that any of these existing 

sources ‘‘which, as determined by the 

State, emits any air pollutant which may 

reasonably be anticipated to cause or 

contribute to any impairment of 

visibility [in a Class I area],’’ shall 

install the best available retrofit 

technology for controlling emissions.2

In determining BART, the CAA requires 

the State to consider several factors that 

are set forth in section 169(g)(2) of the 

CAA, including the degree of 

improvement in visibility which may 

reasonably result from the use of such 

technology.

The regional haze rule addresses 

visibility impairment resulting from 

emissions from a multitude of sources 

located across a wide geographic area. 

Because the problem of regional haze is 

caused in large part by the long-range 

transport of emissions from multiple 

sources, and for certain technical and 

other reasons explained in that 

rulemaking, we had adopted an 

approach that required States to look at 

the contribution of all BART sources to 

the problem of regional haze in 

determining both applicability and the 

appropriate level of control. 

Specifically, we had concluded that if a 

source potentially subject to BART is 

located within an upwind area from 

which pollutants may be transported 

downwind to a Class I area, that source 

‘‘may reasonably be anticipated to cause 

or contribute’’ to visibility impairment 

in the Class I area. Similarly, we had 

also concluded that in weighing the 

factors set forth in the statute for 

determining BART, the States should 

consider the collective impact of BART 

sources on visibility. In particular, in 

considering the degree of visibility 

improvement that could reasonably be 

anticipated to result from the use of 

such technology, we stated that the 

State should consider the degree of 

improvement in visibility that would 

result from the cumulative impact of 

applying controls to all sources subject 

to BART. We had concluded that the 

States should use this analysis to 

determine the appropriate BART 

emission limitations for specific 

sources.3

In American Corn Growers v. EPA, 

industry petitioners challenged EPA’s 

interpretation of both these aspects of 

the BART determination process and 

raised other challenges to the rule. 

While rejecting industry’s other 

challenges, the court in American Corn 

Growers concluded that the BART 

provisions in the 1999 regional haze 

rule were inconsistent with the 

provisions in the CAA ‘‘giving the states 

broad authority over BART 

determinations.’’ 291 F.3d at 8. 

Specifically, with respect to the test for 

determining whether a source is subject 

to BART, the court held that the method 

that EPA had prescribed for determining 

which eligible sources are subject to 

BART illegally constrained the authority 

Congress had conferred on the States. 

Id. However, the court expressly 

declined to hold that the general 

collective contribution approach to 

determining BART applicability was 

necessarily inconsistent with the CAA, 

were it not for the infringement on State 

authority. Id. at 9. Rather, the court 

stated that the collective contribution 

approach may have been acceptable if 

EPA had allowed for a State exemption 

process based on an individualized 

contribution determination. Id. at 12.

The court in American Corn Growers 

also found that EPA’s interpretation of 

the CAA requiring the States to consider 

the degree of improvement in visibility 

that would result from the cumulative 

impact of applying controls in 

determining BART was inconsistent 

with the language of the Act. 291 F.3d 

at 8. Based on its review of the statute, 

the court concluded that the five 

statutory factors in section 169A(g)(2) 

‘‘were meant to be considered together 

by the states.’’ Id. at 6. 

Finally, the court remanded the 

schedule in the regional haze rule for 

the submission of implementation plans 

for areas that commit to regional 

planning, indicating that the use of such 

a ‘‘committal SIP’’ does not appear to 

satisfy statutory requirements. The court 

declined to vacate the provision, 

however, in light of the need to change 

SIP requirements in order to satisfy the 

ruling on the BART issue. Id. at 15. 

C. Proposed Changes in the Visibility 

Regulations 

Today’s proposed rule responds to the 

American Corn Growers court’s decision 

on the BART provisions by proposing 

changes to the regional haze rule at 40 

CFR 51.308, and by reproposing the 

BART guidelines. This section outlines 

the changes to the regional haze rule 

due to the court’s remand and to 

subsequent Congressional action 

regarding deadlines for the submission 

of regional haze implementation plans. 

It also explains the minor change we are 

proposing to the section of the 

regulation governing the use of the 1980 

BART guidelines when conducting 

BART analyses for certain power plants 

for reasonably attributable (i.e., 

localized) visibility impairment. 

1. Determination of Which Sources Are 

Subject to BART 

Today’s proposed action addresses 

the American Corn Growers court’s 

vacature of the requirement in the 

regional haze rule requiring States to 

assess visibility impacts on a 

cumulative basis in determining which 

sources are subject to BART. Because 

this requirement was found only in the 

preamble to the 1999 regional haze rule 

(see 291 F.3rd at 6, citing 64 FR 35741), 

no changes to the regulations are 

required. Instead, this issue is addressed 

in the BART guidelines, which provide 

States with a number of options for 

determining which BART-eligible 

sources ‘‘may reasonably be anticipated 

to cause or contribute to any 

impairment of visibility in any 

mandatory Class I Federal area.’’ These 

options have been designed to address 

the holding of American Corn Growers 

by eliminating the previous constraint 

on State discretion, as explained in 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25187

4Transportation Equity Act for the 21st Century, 

Pub. L. 105–178, 112 Stat. 107, 463 (1998) (TEA–

21).

5Consolidated Appropriations Act for Fiscal Year 

2004, Pub. L. 108–199, January 23, 2004.

6CAA Section 107(d)(7)(A), as amended by the 

Consolidated Appropriations Act for Fiscal Year 

2004, now reads: ‘‘In General.—Notwithstanding 

any other provision of law, not later than 3 years 

after the date on which the Administrator 

promulgates the designations referred to in 

Paragraph (6)(B) for a State, the State shall submit, 

for the entire State, the State implementation plan 

revisions to meet the requirements promulgated by 

the Administrator under section 169B(e)(1) (referred 

to in this paragraph as ‘regional haze 

requirements’).’’

7CAA section 107(d)(7)(B) ‘‘No Preclusion of 

Other Provisions.—Nothing in this paragraph 

precludes the implementation of of the agreements 

and recommendations stemming from the Grand 

Canyon Visibility Transport Commission Report 

dated June 1996, including the submission of State 

implementation plan revisions by the States of 

Arizona, California, Colorado, Idaho, Nevada, New 

Mexico, Oregon, Utah, or Wyoming by December 

31, 2003, for implementation of regional haze 

requirements applicable to those States.’’

8These are the section of 309 establishing 

deadlines for SIP revisions which contain major 

new policy initiatives which should, for efficiency, 

be coordinated with the development of section 308 

SIPs; specifically long term strategies and BART 

requirements for stationary source NOX and PM, if 

determined to be necessary (section 309(d)(4)(v)), 

and reasonable progress provisions for additional 

(non-Colorado Plateau) class I areas (section 

309(g)(2)–(g)(3)). 

We are aware that 2008 deadlines also appear in 

section 309(d)(10) (progress reports) and section 

309(b)(6) (mobile source tracking and revisions if 

necessary). We are not proposing to amend these 

sections because they are part of a scheme 

establishing check points for § 309 strategies in 

2008, 2013, and 2018, rather than development of 

new strategies, and thus do not require integration 

with § 308 SIPs.

9U.S. Environmental Protection Agency, 

Guidelines for Determining Best Available Retrofit 

Technology for Coal-fired Power Plants and Other 

Existing Stationary Facilities, EPA–450/3–80–009b, 

Office of Air Quality Planning and Standards, 

Research Triangle Park, N.C., November 1980 (1980 

BART Guidelines).

further detail in sections II.D. and III 

below. 

2. Consideration of Anticipated 

Visibility Improvements in BART 

Determinations 

Pursuant to the remand in American 

Corn Growers, we are proposing to 

amend the regional haze rule to require 

the States to consider the degree of 

visibility improvement resulting from a 

source’s installation and operation of 

retrofit technology, along with the other 

statutory factors set out in CAA section 

169A(g)(2), when making a BART 

determination. This would be 

accomplished by listing the visibility 

improvement factor with the other 

statutory BART determination factors in 

section 308(e)(1)(A), so that States will 

be required to consider all five factors, 

including visibility impacts, on an 

individual source basis when making 

each individual source BART 

determination. 

In addition, Section 308(e)(1)(B), 

which formerly required States to assess 

visibility on a cumulative basis (i.e., for 

all BART-eligible sources), would be 

replaced with a requirement to use the 

BART guidelines at appendix Y. The 

guidelines, as will be explained in the 

next section and in greater detail in 

section III, provide for source-specific 

analysis of anticipated improvement in 

visibility. These changes, therefore, 

address the court’s holding with respect 

to the isolation of the visibility 

improvement factor at this stage of the 

BART analysis. 

3. Implementation Plan Deadlines 

As noted above, the 1999 regional 

haze rule contained a committal SIP 

mechanism (section 308(c)) which the 

American Corn Growers court remanded 

without vacating. This mechanism was 

intended to allow states to harmonize 

regional haze SIP submittals for all areas 

within the state. At the time the rule 

was promulgated, the deadline for 

regional haze SIPs varied depending on 

the PM2.5 attainment or nonattainment 

status of the area.4

In the Omnibus Appropriations Act of 

2004,5 Congress harmonized both 

designations and regional haze SIP 

deadlines. Under the Omnibus 

Appropriations Act, we are required to 

promulgate PM2.5 designations for all 

areas of each state no later than 

December 31, 2004. Designations will 

become effective 30 days afterward, or 

no later than January 31, 2005. The 

Omnibus Appropriations Act further 

provides that regional haze SIPs, for 

each entire state, are then due not later 

than 3 years after promulgation of the 

PM2.5 designation.6 Thus, regional haze 

SIPs are due no later than January, 31, 

2008. We are proposing to amend 40 

CFR 51.308(b) and 51.308(c) to comport 

with the new statutory deadlines, and to 

eliminate the ‘‘comittal’’ SIP provision.

We are also proposing to amend 

certain sections of 40 CFR 51.309 to 

comport with the new statutory 

deadlines. Under Section 309 as 

currently codified, the initial SIPs for 

states utilizing Section 309 were due in 

2003, and a second set of SIPs for those 

states are due no later than December 

31, 2008. This date was designed to 

coincide with the latest date Section 308 

SIPs could be due under the statutory 

scheme prior to amendment by the 

Omnibus Act. The Omnibus 

Amendments contain a ‘‘no preclusion’’

provision, clarifying that nothing 

therein precludes the submission of 

section 309 SIPs by December 31, 2003.7

The ‘‘no preclusion’’ provision does not 

expressly provide that the later 

(currently 2008) section 309 deadlines 

are not precluded. There is therefore 

some ambiguity as to whether the 3-

year-after-designation deadline applies 

to subsequent section 309 SIPs. We 

believe that policy interests of certainty, 

clarity, and coordination of efforts are 

best served by establishing consistent 

deadlines for SIPs under sections 308 

and 309 where appropriate, and by 

avoiding any ambiguity regarding future 

section 309 SIP deadlines. Therefore, we 

are proposing to amend sections 

309(d)(4)(v), 309(g)(2), and 309(g)(3), by 

replacing ‘‘December 31, 2008’’ with 

‘‘January 31, 2008’’, to coincide with 

section 308 SIPs.8

4. Proposed Revisions to the 1980 BART 

Guidelines 

Background. One of the primary 

purposes of this reproposal is to provide 

BART guidelines for the regional haze 

program. As described in the 2001 

proposed BART guidelines (66 FR 

38108, 38109), however, we are also 

proposing to make limited revisions to 

longstanding guidelines for BART under 

the 1980 visibility regulations for 

localized visibility impairment that is 

‘‘reasonably attributable’’ to one or a few 

sources.9 The visibility regulations 

require States to use a 1980 guidelines 

document when conducting BART 

analyses for certain power plants for 

reasonably attributable visibility 

impairment. While the analytical 

process set forth in these guidelines is 

still generally acceptable for conducting 

BART analyses for ‘‘reasonably 

attributable’’ visibility impairment, 

there are statements in the 1980 BART 

Guidelines that could be read to 

indicate that the NSPS may be 

considered to represent best control for 

existing sources. While this may have 

been the case in 1980 (e.g., the NSPS for 

sulfur dioxide (SO2) from boilers had 

been recently issued in June 1979), best 

control levels for recent plant retrofits 

have exceeded NSPS levels. Therefore, 

we are proposing to amend this 

provision of the 1980 visibility 

regulations to clarify that BART should 

not be interpreted under the 1980 

regulations to preclude control options 

which are more stringent than NSPS 

standards.

D. Reproposal of the BART Guidelines 

Prior to the American Corn Growers 

decision, we had proposed guidelines 

for the regional haze BART process. 

Specifically, on July 20, 2001, the 

proposed BART guidelines were 

published in the Federal Register (66 

FR 13108–13135). We requested written 

25188 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

10 ‘‘BART-eligible source’’ is defined as a 

stationary source of air pollutants that falls within 

one of 26 listed categories which was put into 

operation between August 7, 1962 and August 7, 

1977, with the potential to emit 250 tons per year 

of any air pollutant. CAA §§ 169(b)(2)(A) and (g)(7); 

40 CFR § 51.301.

11 64 FR 335740, July 1, 1999. The regional haze 

rule discusses at length why we believe that States 

should draw this conclusion. 64 FR 35739–40.

12CAA § 169A(b)(2)(A).

13See 64 FR 35714, 35721. See also July 29, 1997 

memorandum to the regional haze docket A–95–38, 

‘‘Supporting Information for Proposed Applicability 

of Regional Haze Regulations,’’ by Richard 

Damberg, EPA, Office of Air Quality Planning and 

Standards.

comments on the proposal and 

conducted two public hearings. The 

deadline for written comments was 

extended from September 18, 2001 to 

October 5, 2001 in a separate Federal 

Register notice (66 FR 50135). 

Public hearings were held on August 

21, 2001 in Alexandria, Virginia and on 

August 27, 2001 in Chicago, Illinois. 

Transcripts for these public hearings are 

available in the public docket for the 

regulation (Docket A–2000–28, Docket 

numbers IV–F–01 and IV–F–02). Oral 

testimony in both public hearings was 

predominantly from private citizens 

supportive of the proposed BART 

guidelines. 

We received written comments on the 

package from many citizens and 

stakeholder groups. 

Today, we are reproposing the BART 

guidelines to take into account the 

changes that we are proposing to make 

to the regional haze rule. Although in 

reproposing the BART guidelines we 

have taken into account some of the 

comments that we received in response 

to the 2001 action, much of what is set 

forth in the BART guidelines proposed 

today is identical to the earlier proposal. 

Both for those proposed requirements in 

the BART guidelines which are 

unchanged from the 2001 proposal, as 

well as for those that we have changed 

since 2001, you do not need to resubmit 

comments unless you have additional 

information that you would like us to 

consider, because we will carefully 

consider all comments previously 

submitted during the comment period 

on the 2001 proposal in making our 

final decision on the BART guidelines. 

The proposed BART process is set 

forth in the BART guidelines we are 

reproposing today in response to the 

remand. The rest of this section 

provides an overview of this proposed 

BART process. The overview 

summarizes both (1) the process for 

determining which BART-eligible 

sources may be reasonably anticipated 

to cause or contribute to visibility 

impairment, and thus should be subject 

to BART, and (2) the process for 

evaluating visibility impacts for an 

individual source’s BART 

determination. (We will discuss these 

issues in further detail in section III 

below.) 

The BART Process 

The process of establishing BART 

emission limitations can be logically 

broken down into three steps: First, 

States identify those sources which 

meet the definition of ‘‘BART-eligible 

source’’ set forth in 40 CFR 51.301.10

Second, States determine whether such 

sources ‘‘emit[] any air pollutant which 

may reasonably be anticipated to cause 

or contribute to any impairment of 

visibility [in a Class I area.]’’ A source 

which fits this description is ‘‘subject to 

BART.’’ Third, for each source subject to 

BART, States then identify the 

appropriate type and the level of control 

for reducing emissions.

Identifying BART-Eligible Sources 

The CAA defines BART-eligible 

sources as those sources which fall 

within one of 26 specific source 

categories, were built during the 15-year 

window of time from 1962 to 1977, and 

have potential emissions greater than 

250 tons per year. The remand did not 

address the step of identifying BARTeligible sources, which is conceptually 

the simplest of the three steps. 

Sources Reasonably Anticipated To 

Cause or Contribute To Visibility 

Impairment (Sources Subject to BART) 

As we noted in the preamble to the 

1999 regional haze rule, defining the 

individual contributions of specific 

sources of the problem of regional haze 

can be time-consuming and expensive. 

Moreover, Congress established a very 

low threshold in the CAA for 

determining whether a source is subject 

to BART. We are accordingly proposing 

several approaches for States for making 

the determination of whether a source 

‘‘emits any pollutants which may 

reasonably be anticipated to cause or 

contribute to any visibility 

impairment.’’ The first two of these 

approaches would allow States to avoid 

undertaking unnecessary and costly 

studies of an individual source’s 

contribution to haze by allowing States 

to adopt more streamlined processes for 

determining whether, or which, BARTeligible sources are subject to BART. 

In 1999, we adopted an applicability 

test that looked to the collective 

contribution of emissions from an area. 

In particular, we stated that if ‘‘a State 

should find that a BART-eligible source 

is ‘‘reasonably anticipated to cause or 

contribute’’ to regional haze if it can be 

shown that the source emits pollutants 

within a geographic area from which 

pollutants can be emitted and 

transported downwind to a Class I 

area.’’ 11 Under today’s proposal, a State 

has the discretion to consider that all 

BART-eligible sources within the State 

are ‘‘reasonably anticipated to cause or 

contribute’’ to some degree of visibility 

impairment in a Class I area.

This option is consistent with the 

American Corn Growers court’s 

decision. As previously noted, the 

court’s concern with our original 

approach governing BART applicability 

determinations was that it would have 

‘‘tie[d] the states’’ hands and force[d] 

them to require BART controls at 

sources without any empirical evidence 

of the particular source’s contribution to 

visibility impairment.’’ 291 F.3d at 8. By 

the same rationale, we believe it would 

be an impermissible constraint of State 

authority to force States to conduct 

individualized analysis in order to 

determine that a BART-eligible source 

‘‘emits any air pollutant which may 

reasonably be anticipated to cause or 

contribute to any impairment of 

visibility in any [Class I] area.’’ 12 In this 

respect, we believe that it is important 

to note that the court in American Corn 

Growers expressly declined to hold that 

consideration of visibility impact on a 

cumulative basis would be invalid in all 

circumstances. 291 F.3d at 9. Given the 

court’s emphasis on the importance of 

the role of the States in making BART 

determinations, we believe that a State’s 

decision to use a cumulative analysis at 

the eligibility stage would be consistent 

with the CAA and the findings of the 

D.C. Circuit.

We believe there is ample technical 

evidence supporting a finding by a State 

that all BART-eligible sources within 

the State are subject to BART, without 

further analysis at that stage in the 

process.13 Any potential for inequity 

towards sources would be addressed at 

the BART determination stage, where 

we are proposing to require the 

individualized consideration of a 

source’s contribution in establishing 

BART emission limits.

The reasoning underlying this 

approach is discussed in more detail in 

section III below. 

We are also proposing to provide 

States with the option of performing an 

analysis to show that the full group of 

BART-eligible sources in a State 

cumulatively do not cause or contribute 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25189

to any visibility impairment in Class I 

areas. We anticipate that in most, if not 

all States, the BART-eligible sources are 

likely to cause or contribute to some 

visibility impairment in Class I areas. 

However, it is possible that using a 

cumulative approach, a State could 

show that its BART sources do not 

collectively pose a measurable problem. 

Finally, we are also proposing that 

States may consider the individualized 

contribution of a BART-eligible source 

to determine whether a specific source 

is subject to BART. Specifically, States 

may choose to undertake an analysis of 

each BART-eligible source in the State 

in considering whether each such 

source meets the test set forth in the 

CAA of ‘‘emit[ting] any air pollutant 

which may reasonably be anticipated to 

cause or contribute to any impairment 

of visibility in any [Class I] area.’’

Alternatively, States may choose to 

presume that all BART-eligible sources 

within the State meet this applicability 

test, but provide sources with the ability 

to demonstrate on a case by case basis 

that this is not the case. This approach 

is consistent with the D.C. Circuit’s 

statement that a collective contribution 

approach may be appropriate so long as 

the States are allowed to exempt sources 

on the basis of an individualized 

contribution determination. 291 F.3d at 

8. 

For assessing the impact of BARTeligible sources located greater than 50 

kilometers (km) from a Class I area, we 

are proposing that the States use an air 

quality model able to estimate a single 

source’s contribution to visibility 

impairment. We are also requesting 

comment on methods appropriate for 

Class I areas closer than 50 km; and on 

other potential methods of assessing a 

source’s individualized contribution to 

regional haze visibility impairment. 

(This is explained in greater detail in 

section III below).

The BART Determination 

The State must determine the 

appropriate level of BART control for 

each source subject to BART. Section 

169A(g)(7) of the CAA requires States to 

consider the following factors in making 

BART determinations: (1) The costs of 

compliance, (2) the energy and nonair 

quality environmental impacts of 

compliance, (3) any existing pollution 

control technology in use at the source, 

(4) the remaining useful life of the 

source, and (5) the degree of 

improvement in visibility which may 

reasonably be anticipated to result from 

the use of such technology. The remand 

did not address the first four steps of the 

BART determination (the ‘‘engineering 

analysis’’). The remand did address the 

final step, mandating that EPA must 

provide a way for States to take into 

account the degree of improvement in 

visibility that would result from 

imposition of BART on each individual 

source. 

The BART engineering analysis, 

comprising the first four factors, is 

addressed in detail in section IV below, 

and is substantially similar to the 

engineering analysis in the original 

BART guidelines proposed in July, 

2001. Section IV also contains a detailed 

discussion of available and costeffective controls for reducing SO2 and 

nitrogen oxicdes (NOX) emissions from 

large coal-fired electric generating units 

(EGUs). 

For assessing the fifth factor, the 

degree of improvement in visibility from 

various BART control levels, we are 

proposing that States require individual 

sources to run CALPUFF, or other EPAapproved model, using site-specific 

data. To estimate a source’s impact on 

visibility, the source would run the 

model using current allowable 

emissions, and then again at the postcontrol emissions level (or levels) being 

assessed. Results would then be 

tabulated for the average of the 20% 

worst modeled days at each receptor. 

The difference in the resulting level of 

impairment predicted is the degree of 

improvement in visibility expected. 

Alternatively, we request comment on 

the option of using the hourly modeled 

impacts from CALPUFF and assessing 

the improvement in visibility based on 

the number of hours above a visibility 

threshold for the pre- and post-control 

emission rates. 

III. Detailed Discussion of Reproposed 

BART Guidelines 

A. Introduction 

In this section of the preamble, we 

discuss the details of the reproposed 

BART guidelines where we are 

proposing to make changes to, or to 

clarify, the BART guidelines proposed 

in July, 2001. As noted in section II, we 

will be reviewing the comments 

received during the comment period on 

the 2001 proposal and responding to 

those comments when we issue a final 

guideline. For each provision of the 

guidelines that we are changing or 

clarifying, we provide discussion of, as 

appropriate:

—Background information, 

—What we proposed in the July 2001 

action, 

—A summary or partial summary of the 

comments received on the provision, 

and 

—The changes or clarifications that we 

are proposing and the reasons for 

these changes or clarifications. 

B. How To Identify BART-Eligible 

Sources 

The CAA, in section 169A(g)(7), 

provides a specific list of the types of 

‘‘major stationary sources’’ that are 

covered by the BART requirement. Our 

visibility regulations include this same 

list in 40 CFR 51.301 in the definition 

of the term ‘‘existing stationary facility’’

and by reference, ‘‘BART-eligible 

source.’’ Because the terms ‘‘major 

stationary source’’ and ‘‘existing 

stationary facility’’ are general in nature 

and used for other air quality programs, 

we decided to eliminate any potential 

confusion by using the term ‘‘BARTeligible source’’ in the regional haze 

portions of the visibility regulations that 

were published in 1999. As defined in 

40 CFR 51.301, a ‘‘BART-eligible 

source’’ means the same thing as an 

‘‘existing stationary facility’’ as defined 

in EPA’s 1980 visibility regulations, and 

means the same thing as a ‘‘major 

stationary source’’ as defined in CAA 

section 169A(g)(7). 

Section II of the reproposed BART 

guidelines contains a step-by-step 

process for identifying stationary 

sources that are ‘‘BART-eligible’’ under 

the definitions in the regional haze rule. 

Today’s action reproposing the BART 

guidelines includes the same four basic 

steps as in the proposed rule. The four 

basic steps are:

Step 1: Identify the emission units in 

the BART categories 

Step 2: Identify the start-up dates of 

those emission units 

Step 3: Compare the potential emissions 

from units identified in Steps 1 and 

2 to the 250 ton/yr cutoff 

Step 4: Identify the emission units and 

pollutants that constitute the BARTeligible source.

We received a number of comments 

on this proposed approach to 

identifying BART-eligible sources. In 

this section of the preamble, we discuss 

some of the previously submitted 

comments and any changes we are 

proposing in light of these comments.

Step 1: Identify the emission units in 

the BART cateories.

Background. The CAA uses the 

following 26 source category titles to 

describe the types of stationary sources 

that are BART-eligible: 

(1) Fossil-fuel fired steam electric 

plants of more than 250 million British 

thermal units (BTU) per hour heat 

input, 

(2) Coal cleaning plants (thermal 

dryers), 

25190 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

14The NOX SIP call requires a number of Eastern 

States to reduce the Summertime emissions of NOX

from sources within these States. 63 FR 57356 (Oct. 

27, 1998).

(3) Kraft pulp mills, 

(4) Portland cement plants, 

(5) Primary zinc smelters, 

(6) Iron and steel mill plants, 

(7) Primary aluminum ore reduction 

plants, 

(8) Primary copper smelters, 

(9) Municipal incinerators capable of 

charging more than 250 tons of refuse 

per day, 

(10) Hydrofluoric, sulfuric, and nitric 

acid plants, 

(11) Petroleum refineries, 

(12) Lime plants, 

(13) Phosphate rock processing plants, 

(14) Coke oven batteries, 

(15) Sulfur recovery plants, 

(16) Carbon black plants (furnace 

process), 

(17) Primary lead smelters, 

(18) Fuel conversion plants, 

(19) Sintering plants, 

(20) Secondary metal production 

facilities, 

(21) Chemical process plants, 

(22) Fossil-fuel boilers of more than 

250 million BTUs per hour heat input, 

(23) Petroleum storage and transfer 

facilities with a capacity exceeding 

300,000 barrels, 

(24) Taconite ore processing facilities, 

(25) Glass fiber processing plants, and 

(26) Charcoal production facilities.

Most of the source category titles are 

general descriptors that are inclusive of 

all the operations at a given plant. Some 

plant sites may have more than one of 

the categories present. Examples of this 

would include plants with both 

‘‘petroleum refineries’’ and ‘‘sulfur 

recovery plants,’’ or with both ‘‘iron and 

steel mill plants’’ and ‘‘sintering 

plants.’’ On the other hand, some plant 

sites may include some emissions units 

meeting one of these 26 descriptions, 

but other emissions units that do not.

2001 Proposed Rule. In the 2001 

proposed BART guidelines, we noted 

that the category titles were generally 

clear and we proposed to clarify a few 

issues, including interpretations where 

we believed there were ambiguities in 

the source category titles. We requested 

comment on whether any other 

clarifications were needed. The 2001 

proposed guidelines clarified that in 

identifying emissions units for inclusion 

as a BART-eligible source, States should 

identify all emissions units at a plant 

site meeting one or more of the source 

category descriptions. The 2001 

proposed rule provided specific 

interpretations for five of the 26 source 

category titles: 

(1) ‘‘Steam electric plants of more 

than 250 million BTU/hr heat input.’’

The 2001 proposal noted that because 

the category title refers to ‘‘plants,’’

boiler capacities must be aggregated to 

determine whether the 250 million 

BTU/hr threshold is reached. 

(2) ‘‘Fossil-fuel boilers of more than 

250 million BTU/hr heat input.’’ We 

proposed two options for interpreting 

this source category title. The first 

option, the approach used in the 

regulations for prevention of significant 

deterioration (PSD) program, would be 

to aggregate boiler capacities to 

determine whether the 250 million 

BTU/hr threshold is reached. Under the 

second option, only those boilers that 

are individually greater than 250 

million BTU/hr would fall within the 

BART source category. 

(3) ‘‘Petroleum storage and transfer 

facilities with a capacity exceeding 

300,000 barrels.’’ In the 2001 proposal, 

we noted our interpretation that the 

300,000 barrel cutoff refers to total, 

facility-wide tank capacity for tanks that 

were put in place within the 1962–1977 

time period, and includes gasoline and 

other petroleum-derived liquids. 

(4) ‘‘Phosphate rock processing 

plants.’’ In the 2001 proposal, we noted 

that this category descriptor should be 

interpreted broadly to include all types 

of phosphate rock processing facilities, 

including elemental phosphorous plants 

as well as fertilizer production plants. 

(5) ‘‘Charcoal production facilities.’’

In the 2001 proposal, we noted 

information provided by the National 

Association of Manufacturers (NAM) on 

the legislative history for this source 

category. In its letter, NAM suggested 

that the legislative history supported a 

conclusion that BART should cover 

only a subset of the charcoal production 

industry. While we indicated that we 

did not agree with this assessment, we 

requested comment on whether and 

how the information cited by NAM is 

relevant to the interpretation of this or 

other categories.

Finally, in the 2001 proposal, we 

requested comment generally on 

whether any additional source category 

titles needed clarification.

Comments on the 2001 Proposal. We 

received a number of comments related 

to the interpretation of the source 

category titles. Some of these comments 

related to the category-specific 

clarifications we provided in the 

proposed guidelines. In addition, there 

were a few comments in response to our 

request for additional category titles 

needing clarification. In this section, we 

only discuss the previously submitted 

comments that have led to the changes 

we are proposing in today’s action. 

We received many comments related 

to our interpretation of the term ‘‘fossilfuel boilers of more than 250 million 

BTUs per hour heat input.’’ A number 

of comments from environmental 

groups and States were supportive of an 

interpretation which would require 

States to compare the aggregate 

capacities of boilers against the 250 

million BTU/hr cutoff. These comments 

agreed with our assessment that this 

would promote consistency with the 

PSD program. Environmental group 

comments also noted that the plural 

term ‘‘boilers’’ was used in the CAA, 

rather than the singular term ‘‘any 

boiler.’’

Many commenters from industry 

groups and some State agencies 

supported the alternative interpretation 

of the category, which would require 

States to consider as BART-eligible only 

those boilers which are individually 

greater than 250 million BTU/hr. These 

commenters generally asserted that this 

was the plain reading of the source 

category title, and also that such an 

approach would be consistent with EPA 

programs such as NSPS and the NOX

SIP Call.14 These commenters noted 

that, unlike the PSD program, 

circumvention of the requirements is 

not possible because BART only applies 

to boilers already in existence. Other 

commenters noted that aggregation of 

boilers may result in inclusion of very 

small boilers for which BART controls 

would not be cost effective.

In addition to the general comments 

on the interpretation of the size cutoff 

for boilers, we received comments on 

two other aspects of the term ‘‘fossil fuel 

boilers.’’ Some boilers burn solid fuels 

that are not fossil fuels, such as wood 

products. A number of industry 

commenters suggested that we should 

interpret the term ‘‘fossil fuel’’ as it was 

interpreted for the NOX SIP Call, which 

treats as ‘‘fossil fuel’’ only those boilers 

that burn more than 50 percent fossil 

fuels, on an annual heat input basis. 

One commenter noted as an example 

that a boiler that has fossil fuel capacity 

greater than 250 million BTU/hr, but 

that only burns such fuels during 

startup and shutdown, should not be 

considered as a ‘‘fossil fuel fired boiler’’

for purposes of BART. Comments from 

the paper industry requested that EPA 

clarify in the guidelines that a multi-fuel 

boiler, with a capacity of greater than or 

equal to 250 million Btu/hr, would not 

be considered BART-eligible if the 

boiler is subject to an enforceable 

limitation that would prohibit 

combustion at greater than 250 million 

BTU/hr. 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25191

Several commenters requested that we 

provide a specific interpretation for the 

term ‘‘secondary metal production 

facilities.’’ The commenters requested 

that we formally define the term to 

include only those facilities within the 

Standard Industrial Classification (SIC) 

code 3341, ‘‘Secondary Smelting and 

Refining of Nonferrous Metals.’’ Also, 

the commenters recommended that a 

‘‘Secondary Metal Production Facility’’

be defined to mean one or more 

emission units that derive more than 

fifty percent of the metal(s) it produces 

from purchased scrap and dross.

Reproposal. After considering these 

comments, we are proposing some 

changes to the source category 

definitions. 

We agree that the interpretation of 

‘‘fossil-fuel boilers of more than 250 

million BTU/hr heat input’’ is best read 

to include only those boilers at a power 

plant individually greater than 250 

million BTU/hr. We agree with 

comments that this interpretation is a 

better reading of the category title than 

the alternative under which States 

would compare the cumulative boiler 

capacity over all boilers at a power plant 

to the 250 million BTU/hr cutoff. We do 

not agree with comments that any 

particular meaning can be taken from 

the use of the plural word ‘‘boilers’’ in 

the category title. On the other hand, if 

a boiler smaller than 250 million BTU/

hr is an integral part of an industrial 

process in a BART source category other 

than electric utilities—for example, part 

of the process description at a chemical 

process plant—then we believe that the 

boiler should be considered for controls 

as part of the BART source. The logic 

here is that a State should consider all 

emission points at an integral industrial 

process to be part of the BART-eligible 

source, so that later, when making the 

actual BART determination, the State 

would be certain that it has not 

prematurely ruled out any sensible 

control options for that process as a 

whole. That way the State will have 

retained as much discretion as possible 

to require control on all or part of an 

industrial process, on a case-by-case 

basis, considering all of the BART 

factors. 

We do not believe that this 

interpretation is likely to have a 

substantial impact on the amount of 

BART emissions reductions achieved, 

because smaller boilers are generally 

less cost effective to control. Also, we 

believe that covering only individual 

utility boilers greater than 250 million 

BTU/hr may help address States’

concerns over the implementation 

burden of the program. 

We also agree with the two 

clarifications suggested by commenters 

relating to the term ‘‘fossil fuel.’’ We 

propose to add a statement to the 

reproposed guidelines clarifying that 

‘‘fossil fuel boilers’’ refers to boilers 

burning greater than 50 percent fossil 

fuels. We believe that this is a 

reasonable approach to interpreting the 

definition in the CAA. Also, we agree 

that enforceable operational limits for a 

multi-fuel boiler would be relevant to 

determining whether its ‘‘fossil fuel’’

capacity exceeds 250 million BTU/hr 

and that it would be reasonable for 

States to take such limitations into 

account. We are proposing to add this 

clarification to the BART guidelines. 

We also wish to clarify that, 

consistent with other EPA rules, the 

definition of ‘‘steam electric plants of 

more than 250 million BTU/hr heat 

input’’ refers only to plants that generate 

electricity for sale. We are proposing to 

add this clarfication to the BART 

guidelines. 

The reproposed guidelines do not take 

a position on the recommendations in 

the comments regarding ‘‘petroleum 

storage and transfer facilities with a 

capacity exceeding 300,000 barrels.’’ We 

believe that this question is largely moot 

given that these storage and transfer 

facilities are already subject to 

maximum achievable control 

technology (MACT) standards and in 

many cases stringent SIP regulations 

related to ozone nonattainment. 

Regardless of the interpretation, we 

believe that it is unlikely that BART 

emissions limitations will require 

further controls. 

We have reviewed comments 

suggesting that ‘‘secondary metal 

production facilities’’ may be 

interpreted to include only those 

facilities within SIC code 3341. We note 

that the term ‘‘secondary metal 

production’’ is broader than SIC code 

3341. ‘‘Secondary metal production’’

would include secondary ferrous metals 

facilities such as secondary iron and 

steel facilities. On the other hand, SIC 

code 3341 includes only nonferrous 

metals facilities such as secondary 

copper, aluminum and lead facilities. 

We believe, however, that secondary 

iron and steel facilities are also included 

within the broad category ‘‘iron and 

steel mill plants.’’ Accordingly, we are 

proposing that in identifying unique 

‘‘secondary metal production’’ facilities 

that are not in any other BART category, 

States may identify those unique 

facilities based upon SIC code 3341.

Step 2: Identify the start-up dates of 

those emission units. The EPA 

interpretation of the terms ‘‘in 

existence’’ and ‘‘in operation.’’

Background. Step 2 in the proposed 

process for identifying BART-eligible 

sources would be to identify all 

emissions units within the listed 

categories which met the two tests in 

the definitions in the regional haze rule: 

(1) The unit was ‘‘in existence on 

August 7, 1977 and (2) the unit began 

operation after August 7, 1962. Our 

visibility regulations define ‘‘in 

existence’’ and ‘‘in operation’’ in 40 CFR 

51.301. We are proposing to retain the 

same definitions of ‘‘in existence’’ and 

‘‘in operation’’ as we had included in 

the 2001 proposal. The term ‘‘in 

existence’’ includes sources not yet in 

operation where the owner or operator 

has not begun operating but which has:

—Obtained all necessary 

preconstruction approvals, 

—Began on-site construction, or 

—Entered into binding agreements or 

contractual obligations to begin 

construction of the facility within a 

reasonable time period.

In contrast, the term ‘‘in operation’’

includes only sources which are 

actually operating. In the reproposed 

BART guidelines, as in the previous 

proposal, we provide examples that 

illustrate the definitions in the regional 

haze rule. 

We also wish to eliminate any 

confusion over power plants having 

boilers built both before 1962 and 

boilers built within the 1962–1977 time 

period. The BART guidelines would not 

require States to find that all boilers at 

a facility are BART-eligible if one or 

more boilers at the facility were put in 

place between the 1962 and 1977 dates. 

Under Step 2 of the proposed process 

for identifying BART-eligible sources, 

States would identify only those boilers 

that were put in place within the 1962–

1977 time period. Only those boilers are 

carried over to Step 3, and only those 

boilers would be subject to a BART 

engineering analysis. We have included 

clarifying language in the reproposed 

guidelines on this issue.

Step 3: Compare the potential emissions 

from the units identified in steps 1 

and 2 to the 250 ton/yr cutoff.

Background. Under the definition of 

‘‘major stationary source’’ in CAA 

section 169A(g)(7) and the 

corresponding definition of ‘‘BARTeligible source’’ in the regional haze 

rule, BART applies only to a stationary 

source if it meets the category 

description and time window criteria 

described above, and only if it has the 

potential to emit 250 tons or more of 

‘‘any pollutant.’’

25192 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

15For a more in-depth discussion of the 

contribution of ammonia emissions from stationary 

sources to long-range transport of PM2.5, see

discussion in the proposed Interstaste Air Quality 

Rule (IAQR): 69 FR 4566, January 30, 2004.

16See discussion in the NOX SIP call at 63 Fed. 

Reg. 57,356 (Oct. 27, 1998).

There are two issues needing 

clarification with respect to the 250 tons 

per year threshold—one regarding what 

pollutants should be addressed, and 

two, the definition of stationary source. 

What Pollutants Should I Address? 

2001 Proposed Rule. The 2001 

proposal clarified that the 250 tons per 

year cutoff applies only to visibilityimpairing pollutants and included a list 

of pollutants to address: SO2, NOX, 

particulate matter, volatile organic 

compounds (VOC), and ammonia. 

Comments. We received a number of 

comments related to the proposed 

inclusion of ammonia. One comment 

cited three reasons for not including 

ammonia on the list of visibilityimpairing pollutants. First, the 

commenters believed that we had 

provided no scientific basis for 

suggesting that ammonia contributes to 

visibility impairment. Second, the 

commenters believed that we should not 

include ammonia on the list of 

pollutants without fully discussing the 

implications for other programs. For 

example, if ammonia became a 

‘‘regulated pollutant’’ under the CAA 

based upon its inclusion in the 

guidance, the commenters believed that 

there would be implications for PSD 

and other program requirements. Third, 

the commenters believed that inclusion 

of ammonia would have the unintended 

consequence of discouraging selective 

catalytic reduction (SCR) as a control 

measure for NOX, because of the 

unavoidable but small amount of 

‘‘ammonia slip’’ that occurs in using 

SCR technology. 

Reproposal. Based on the comments 

received on ammonia, and based on our 

current state of knowledge regarding the 

role of ammonia in PM2.5 formation and 

the effects on regional haze that would 

be expected from reductions in 

ammonia emissions, we believe that 

ammonia should not be included on the 

list at this time. 

The following is a our rationale for 

proposing not to include ammonia. 

Ammonia is a gas and does not impair 

visibility directly. It can, however, react 

with acidic particles or gases in the air 

to form ammonium compounds. The 

most common acidic substances with 

which ammonia reacts are sulfuric acid 

and nitric acid, which in turn are 

formed from the reaction of SO2 and 

NOX with other substances in the 

atmosphere. Because ammonia generally 

forms visibility-impairing fine particles 

in the presence of acidic particles or 

gases, reductions in SO2 and NOX

emissions will tend to reduce 

concentrations of ammonia-based 

particles in the air.

In other words, to reduce ammonium 

fine particles, States may either require 

the reduction of ammonia or of SO2 and 

NOX emissions. In determining the 

proper approach to reducing 

ammonium, it is worth noting that as 

SO2 and NOX emissions are decreased, 

the marginal effectiveness of 

hypothetical ammonia controls will also 

tend to decrease. 

The available ammonia emissions 

inventory is uncertain, although EPA 

and other organizations are pursuing 

improvements. Consequently, compared 

to the case for SO2 and NOX, the ability 

to identify opportunities for emissions 

control and to quantify the effects of 

such actions in advance is limited.15

Because of the uncertainties in 

assessing the impact of ammonia 

emissions reductions on visibility, and 

because PM2.5 will decrease due to SO2

and NOX controls, we are proposing not 

to include ammonia on the pollutant list 

at this time. We request comment on 

this determination. 

Also included in the original 

pollutant list are VOCs. We propose that 

VOCs remain on the list. 

Our understanding of the relationship 

between VOC emissions and the 

formation of PM2.5 is rapidly evolving. 

We recognize that VOC emissions are 

most likely to contribute to particle 

formation, and thus to visibility 

impairment, in the presence of NOX. In 

rural areas, anthropogenic VOC 

emissions generally do not appear likely 

to be a significant contributor to PM2.5

formation,16 while VOC emissions in 

urban areas are likely to be a contributor 

to PM2.5 formation. This is because VOC 

emissions are most often present with 

NOX emissions in urban areas. In rural 

areas, by contrast, VOC emissions are 

not as often present with NOX

emissions.

We also recognize that some specific 

uncertainties about VOCs remain. For 

example, only certain organic gases are 

precursors to PM2.5, but available 

inventories cover VOC as an aggregate. 

It is therefore difficult to estimate 

emissions of the precursor compounds 

from these inventories. In addition, 

available models for estimating air 

quality from individual source 

emissions have more uncertainty in 

predicting ambient PM2.5 changes from 

reductions in emissions of organic 

gases. 

Finally, we recognize that many 

industrial sources and most mobile 

sources of organic gases have been 

subjected to VOC control requirements 

that have the effect of reducing 

emissions of the particular compounds 

that are PM2.5 precursors. Given that 

fact, as well as the uncertainties about 

VOCs outlined above, we request 

comment on the level of discretion 

States should exercise in making BART 

determinations. Specifically, we request 

comment on whether States should 

focus greater control requirements on 

VOC emissions from BART sources in 

urban areas. We also request comment 

on the circumstances under which, in 

rural areas, for sources subject to BART, 

States may determine that BART would 

be no control for VOC. 

What Is a ‘‘Stationary Source?’’

The definition of ‘‘building, structure 

or facility’’ in the regional haze rule is 

based, in part, upon grouping of 

pollutant-emitting activities by 2-digit 

category according to the SIC Manual. 

As in the NSR program, however, 

facilities that convey, store or otherwise 

assist in the production of the principal 

product, are considered to fall within 

the same industrial grouping as the 

primary facility. Despite this general 

rule, however, we would like to clarify 

that in practice, this so-called ‘‘support 

facility’’ test for BART is narrower than 

for other programs. We are proposing to 

add language to the guidelines noting 

that emission units at a plant, even if 

they are a ‘‘support facility’’ for 

purposes of other programs, would not 

be considered for BART-eligibility 

unless they were within one of the 26 

listed source categories, and unless they 

were put in place within the 1962 to 

1977 time period. For example, a mine, 

even if a ‘‘support facility’’ for a power 

plant, would not be considered for 

BART eligibility.

Step 4: Identify the emission units and 

pollutants that constitute the BARTeligible source.

Background. The final step in the 

identification of BART-eligible sources 

would be to use the results from the 

previous three steps to identify the 

universe of equipment that is BARTeligible. If the total allowable emissions 

from the stationary source exceed a 

potential to emit of 250 tons per year for 

any individual visibility-impairing 

pollutant, then that collection of 

emissions units is a BART-eligible 

source. A BART analysis would be 

required for each visibility-impairing 

pollutant emitted from this collection of 

emissions units. 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25193

17 64 FR at 35740.

18For regional haze applications, regional scale 

modeling typically involves use of a photochemical 

grid model that is capable of simulating aerosol 

chemistry, transport, and deposition of airborne 

pollutants, including particulate matter and ozone. 

Regional scale air quality models are generally 

applied for geographic scales ranging from a multistate to the continental scale. Such modeling may 

not be appropriate for all States, as regional models 

are most applicable to situations involving multiple 

BART-eligible sources. Because of the design and 

intended applications of grid models, they may not 

be appropriate for all BART assessments, so States 

should consult with the appropriate EPA Regional 

Office prior to carrying out any such modeling.

2001 Proposed Rule. The 2001 

proposed guidelines included two 

examples to clarify this point. In the 

first example, a source has two 

emissions units having cumulative 

emissions exceeding 250 tons for SO2, 

but not for NOX and particulate matter 

(PM). For this example, we noted that 

BART would be required for all three 

pollutants. In the second example, the 

source has potential emissions that are 

less than 250 tons for each individual 

pollutant, but more than 250 tons from 

the sum over all pollutants. For this 

second example, we noted that the 

source would not be BART-eligible. 

Reproposal. We received comments 

on the 2001 proposal suggesting that 

some BART-eligible sources emit 

visibility-impairing pollutants at levels 

that would make a de minimis 

contribution to regional haze. For 

example, a source may be BART-eligible 

because it emits 500 tons per year of one 

visibility-impairing pollutant, but it may 

also emit only one ton per year of 

another pollutant, the emission of 

which would have little effect on 

regional emissions loadings and 

visibility impairment. A 1 ton/yr 

amount from a given BART-eligible 

source would likely represent a de 

minimis fraction of a total regional 

inventory. 

As noted previously, we believe that 

once a source is BART-eligible 

according to the definition in CAA 

section 169A(g)(7), CAA section 

169A(b)(2)(A) requires BART for ‘‘any’’

visibility-impairing pollutant regardless 

of the amount. Notwithstanding this 

apparent directive, we are proposing to 

provide the States with the flexibility to 

identify de minimis levels of pollutants 

at BART-eligible sources. We believe 

that it would be appropriate for States 

to have this flexibility once they have 

collected more information on the 

BART population. We also agree with 

comments that sources emitting 

pollutants at values considered de 

minimis under the PSD program could 

be de minimis for BART as well. 

Accordingly, the reproposal includes a 

provision that any de minimis values 

that States adopt should not be higher 

than the PSD levels: 40 tons per year for 

SO2, NOX and VOC, and 15 tons/yr for 

PM10. We request comment on this 

provision, and on the idea of including 

de minimis values. Finally, if a 

commenter contends that ammonia 

should be included as a precursor to 

PM2.5, then the commenter should also 

comment on an appropriate de minimis 

value for ammonia.

C. How To Determine Which BARTEligible Sources Are Subject to BART 

Background. Section 169A of the Act 

establishes a low triggering threshold for 

determining whether a BART eligible 

source is required to procure and install 

appropriate retrofit technology. States 

must determine whether BART eligible 

sources emit ‘‘any air pollutant which 

may reasonably be anticipated to cause 

or contribute to any impairment of 

visibility in [a Class I] area.’’ In the 

Regional Haze Rule, we interpreted 

these statutory provisions as requiring a 

State to find that a BART-eligible source 

is ‘‘reasonably anticipated to cause or 

contribute’’ to regional haze if it can be 

shown that the source emits pollutants 

within a geographic area from which 

pollutants can be emitted and 

transported downwind to a Class I 

area.17

Reproposal. As explained earlier, as 

part of the BART process, a State 

identifies and lists all ‘‘BART-eligible’’

sources. The State must then determine 

which of those BART-eligible sources 

may ‘‘emit any air pollutant which may 

reasonably be anticipated to cause or 

contribute to any impairment of 

visibility in any [Class I] area.’’ A source 

which fits this description is ‘‘subject to 

BART.’’ This section explains our 

proposed process for determining which 

BART-eligible sources should be subject 

to BART. We request comment on all 

aspects of this process. 

Determining Which Sources Are 

Reasonably Anticipated To Cause or 

Contribute To Visibility Impairment 

(Sources Subject to BART) 

Three options are proposed. First, the 

State may choose to consider that all 

BART-eligible sources in the State are 

subject to BART (i.e., that none are 

exempt). As explained previously, we 

believe this conclusion is reasonable in 

light of currently available information 

[reference 1999 study]. We also believe 

that given American Corn Growers’

emphasis on State’s prerogatives in 

making BART determinations, we may 

lack the authority to deny this option to 

States. 

Second, the State may choose to 

demonstrate, using a cumulative 

approach, that none of its BART-eligible 

sources contribute to visibility 

impairment. We propose that States 

should have the option of performing an 

analysis to show that the full group of 

BART-eligible sources in a State 

cumulatively do not cause or contribute 

to any visibility impairment in Class I 

areas. We request comment on the types 

of analyses that could be used. For 

instance, one approach may be for 

States to use a regional scale grid 

model 18 to demonstrate that its BARTeligible sources do not cause or 

contribute to regional haze. We 

anticipate that in most, if not all States, 

the BART-eligible sources are likely to 

cause or contribute to visibility 

impairment in Class I areas. However, it 

is possible that, using regional scale 

modeling, a State could show that its 

BART sources do not collectively cause 

or contribute to visibility impairment. In 

such a case, a State could complete its 

BART analysis relatively quickly, 

without the need for investing in studies 

of source-specific contributions to 

regional haze. At this time, we are 

neither requiring nor encouraging all 

States to undertake a cumulative 

approach.

Finally, the State may choose to 

determine which sources are subject to 

BART through the use of an individual 

exemption process, described below. 

Individualized Source Exemption 

Process 

We are proposing to provide States 

with the option of determining which 

sources are subject to BART through the 

use of an individualized exemption 

process. For this option, we propose 

that States use an air quality model for 

an individual source to demonstrate no 

contribution to visibility impairment in 

a Class I area. We also request comment 

on alternative approaches that may be 

used in lieu of this approach, or as a 

first step in the process by which States 

may determine which BART-eligible 

sources, if any, to exempt. 

For modeling an individual BARTeligible source located more than 50 km 

from a Class I area, we propose that an 

air quality model, such as CALPUFF, be 

used. The CALPUFF system consists of 

a diagnostic meteorological model, a 

gaussian puff dispersion model with 

algorithms for chemical transformation 

and complex terrain, and a post 

processor for calculating concentration 

fields and visibility impacts. CALPUFF 

was incorporated into the ‘‘Guideline on 

Air Quality Models’’ (the Guideline) (40 

25194 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

19PLUVUEII is a model used for estimating visual 

range reduction and atmospheric discoloration 

caused by plumes resulting from the emissions of 

particles, nitrogen oxides, and sulfur oxides from a 

single source. The model predicts the transport, 

dispersion, chemicals reactions, optical effects and 

surface deposition of point or area source 

emissions. It is available at http://www.epa.gov/

scram001/tt22.htm#pluvue.

20National Acid Precipitation Assessment 

Program (NAPAP). Acid Deposition: State of 

Science and Technology Report 24, Visibility: 

Existing and Historical Conditions—Causes and 

Effects, Washington, DC, 1991. See Appendix D, p. 

24–D2.

21 Ibid.

22U.S. EPA. September 2003. Guidance for 

Estimating Natural Visibility Conditions Under the 

Regional Haze Rule. http://www.epa.gov//ttncaaa1/

t1/memoranda/rh_envcurhr_gd.pdf This document 

has estimates of default conditions as well as 

measures to develop refined estimates of natural 

conditions.

CFR Part 51, Appendix W) in April 

2003. 

Traditionally, EPA has used transport 

and diffusion modeling to predict the 

effect of directly emitted PM2.5

emissions on PM2.5 ambient 

concentrations. To simulate the effect of 

precursor pollutant emissions on PM2.5

concentrations requires air quality 

modeling that not only addresses 

transport and diffusion, but also 

chemical transformations. While we 

believe that it is technically feasible to 

model secondary PM formation, and 

there is at least one model, described 

above, which incorporates algorithms 

for estimating secondary transformation, 

we have not yet fully tested such 

modeling to determine whether its 

application is justified as a sole 

determinant of air quality impacts 

involving secondary transformation. 

However, where the statutory criteria for 

determining regulatory applicability 

involve relatively low thresholds, or 

where regulatory decisions involve 

considerations of multiple factors 

including, but not limited to, model 

results, we believe transport and 

diffusion models such as CALPUFF can 

be appropriate regulatory tools for 

evaluating air quality impacts involving 

secondary transformation. 

Consequently, we believe its use by 

States to assess whether a source is 

reasonably anticipated to cause or 

contribute to impairment of visibility in 

Class I areas is reasonable. 

We are proposing that a CALPUFF 

assessment of an individual source be 

used as the preferred approach for 

determining whether a BART-eligible 

source may be exempt from BART. The 

CALPUFF assessment is specific to each 

source, taking into account the 

individual source’s emission 

characteristics, location, and particular 

meteorological, topographical, and 

climatological conditions, any of which 

may have an impact on the transport of 

PM2.5 and its precursors. Thus, this 

approach may be more determinative 

than a non-modeling approach in 

determining which sources are not 

contributing to visibility impairment in 

a Class I area. 

Results from the CALPUFF 

assessment would be used to determine 

the source’s impact on visibility in a 

Class I area. If a source has an estimated 

impact on visibility that is lower than 

the established threshold (described in 

the section below), then the State may 

choose to exempt the source from 

further BART analysis. If the source’s 

impact is equal to or greater than the 

threshold, the State would determine 

that the source is subject to BART.

The State or source would apply 

CALPUFF for source-receptor distances 

greater than 50 km, since CALPUFF is 

generally intended for use on scales 

from 50 km from a source to hundreds 

of kilometers. However as the modeling 

domain increases in size, the 

requirements for experience in the 

application of CALPUFF becomes more 

demanding (e.g., in processing and 

quality assurance of the meteorology, in 

understanding the implications of the 

various model processing options). 

Therefore we propose that any 

application of CALPUFF for distances 

greater than 200 km requires 

development of a written modeling 

protocol describing the methods and 

procedures to be followed, and that the 

protocol be approved by the appropriate 

reviewing authority. For source-receptor 

distances less than 50 km, we are 

recommending that States use their 

discretion for determining visibility 

impacts giving consideration to both 

CALPUFF and other EPA-approved 

methods. For example, States would 

have the option of exempting these 

sources if air quality modeling results, 

using an appropriate local-scale model 

such as PLUVUEII,19 show that their 

emissions are below a level that would 

be reasonably anticipated to cause or 

contribute to visibility impairment in 

any Class I area.

Metric for Visibility Degradation 

In providing an individual source 

exemption option, a metric is needed to 

assess a source’s contribution to 

visibility degradation. The metric we are 

using in the regional haze rule is the 

deciview, which is derived directly 

from light extinction, an index 

commonly used to measure visibility 

degradation. 

As outlined in the 1999 Regional Haze 

rule (64 FR 35725–35727, July 1, 1999), 

a one deciview change in haziness is a 

small but noticeable change in haziness 

under most circumstances when 

viewing scenes in a Class I area. The 

deciview can be used to express changes 

in visibility impairment that correspond 

to a human perception in a linear, one 

for one, manner. The deciview concept 

was introduced in 1994 in an article 

appearing in a peer-reviewed journal 

(Pitchford and Malm, Atmospheric 

Environment, 28 (5), 1994). We believe 

that visible changes of less than one 

deciview are likely to be perceptible in 

some cases, especially where the scene 

being viewed is highly sensitive to small 

amounts of pollution. We acknowledge 

that for other types of scenes, with other 

site-specific conditions, a change of 

more than one deciview might be 

required in order for the change to be 

perceptible. 

Threshold Levels 

A 1991 report from the National Acid 

Precipitation Assessment Program 

(NAPAP) states that ‘‘changes in light 

extinction of 5% will evoke a just 

noticeable change in most 

landscapes.’’ 20 Converting a 5 percent 

change in light extinction to a change in 

deciviews yields a change of 

approximately 0.5 deciviews. This is a 

natural breakpoint at which to set the 

exemption level, since visibility 

degradation may begin to be recognized 

by human observer at this extinction 

level.21 Thus, we are proposing a 0.5 

deciview change as the threshold for 

determining that an individual source is 

causing visibility impairment at a Class 

I area. This level would be calculated by 

measuring the air quality screening 

modeling results for an individual 

source against natural visibility 

conditions. Natural visibility conditions 

are those conditions that are estimated 

to exist in a given Class I area in the 

absence of human-caused impairment.22

We believe that measuring against 

natural visibility conditions is 

appropriate because the ultimate goal of 

the regional haze program is a return to 

natural conditions. Additionally, 

regional haze strategies are developed to 

make reasonable progress towards this 

goal, and visibility degradation and 

improvement are appropriately 

measured against natural conditions.

We also request comment on using a 

threshold that is more or less than 0.5 

deciviews. Given uncertainties over the 

deciview change that is perceptible, and 

the modeling of a source’s contribution 

to haze in a Class I area, a different 

threshold may be appropriate. 

Furthermore, we recognize that there 

may be situations where impacts from 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25195

23CAA § 169A(b)(2) (emphasis added). 24Memorandum to the docket: Summary of 

Alternative Approaches for Individual Source 

BART exemptions, Todd Hawes, March 12, 2004. 

Docket No. OAR–2002–0076.

more than one BART-eligible source, 

when taken together, would adversely 

affect visibility at a particular Class I 

area even though the impact of each 

individual source would be below the 

visibility threshold. In this case, there 

would be a noticeable impact on 

visibility from BART-eligible sources 

because of the contribution of multiple 

sources, yet impacts from an individual 

source alone would not be noticeable. 

Given the statutory language that a 

source ‘‘which may reasonably be 

anticipated to cause or contribute to 

visibility impairment’’ is subject to 

BART,23 a lower threshold may be 

appropriate as it would effectuate 

Congress’s intent that the BART 

applicability test not establish a high 

hurdle. We accordingly request 

comment on what threshold would be 

appropriate to address these issues.

Alternative Approaches to the 

Assessment Using CALPUFF 

The CALPUFF assessment described 

previously can be a time-consuming and 

data-intensive approach; we are 

concerned about the resource burdens 

this might pose for States and sources. 

Therefore, we are also considering 

alternative approaches that would be 

credible and require fewer resources. 

These approaches could serve as a first 

step in the process for determining 

whether a source contributes to 

visibility impairment in a Class I area. 

We are considering several alternative 

approaches for making this exemption 

determination. These approaches, in no 

particular order, include: (1) A simpler 

screening assessment using CALPUFF 

(2) look-up tables (i.e., tables that 

require emissions and distance 

information for making an exemption 

determination), (3) source ranking, and 

(4) using Emissions divided by Distance, 

known as the Q/D method.

Each approach has strengths and 

limitations. We request comment on all 

of these approaches. A more complete 

and detailed explanation of the four 

alternative approaches, including 

examples, is available in a memo to the 

docket.24

A Screening Assessment Using 

CALPUFF 

We are proposing that CALPUFF be 

run in a screening assessment to 

evaluate individual sources. This 

approach would be less data- and timeintensive than running CALPUFF in the 

assessment described previously due to 

greatly simplified preparation and 

processing of input data. This simpler 

screening assessment utilizes source 

and receptor location, as well as 

meteorological, topographical and 

climatological conditions from a 

regionally-specific profile. However, 

like the assessment described 

previously, this screening assessment 

also utilizes the individual source’s 

particular emission characteristics. The 

table below illustrates the differences 

between the screening assessment of the 

kind described previously as the 

preferred approach and the simpler, 

more generalized screening assessment.

Type .................................................................... CALPUFF Assessment .................................... CALPUFF Screening Assessment. 

Model used ......................................................... CALPUFF ......................................................... CALPUFF. 

Input meteorology ............................................... Process 5 years of location-specific, meteorology data.Representative met location (data already 

processed). 

Terrain included .................................................. Site-specific terrain included ............................ No (assumed flat). 

Source-Receptor distances ................................ Source to Class I area receptor ...................... Source to Class I area receptor. 

Location of Visibility impact ................................ Maximum impact at receptor using appropriate distance and direction from source.Maximum impact in any direction at sourcereceptor distance. 

Results from this screening 

assessment would be used to determine 

the source’s impact on visibility in a 

Class I area. If a source has an estimated 

impact on visibility that is lower than 

the established threshold, the State may 

choose to exempt the source from 

further BART analysis. If the source’s 

impact is equal to or greater than the 

threshold, the State would determine 

that the source is subject to BART. The 

source would then have the option of 

performing the screening assessment 

described previously as the preferred 

approach to demonstrate that its 

visibility impacts do not exceed the 

threshold level and that it qualifies for 

exemption. 

We request comment on the use of 

this approach as an assessment of 

individual source impacts on visibility. 

Look-Up Tables Developed From 

Screening-Level Air Quality Modeling 

For even greater ease of use, look-up 

tables could be developed for 

application in the individual source 

exemption process. Under this 

approach, a State or source would use 

a look-up table developed by EPA to 

determine the source’s predicted impact 

on a Class I area and, consequently, its 

exemption status. The State or source 

would use the source’s emissions 

information and distance from a Class I 

area to determine if it is exempt from 

BART. 

The look-up tables could be 

developed by first using CALPUFF in 

screening assessments to estimate levels 

of visibility impairment (in deciviews) 

associated with different combinations 

of distance to a Class I area and tons per 

year of emissions. A table would show 

the distance from the representative 

BART-eligible source to a Class I area 

and the associated allowable emissions 

of visibility-impairing pollutants (e.g.,

SO2, NOX, and direct PM2.5) at that 

distance that will yield a modeled 

impact of 0.5 deciviews. A State or 

source could ‘‘look up’’ a source’s 

distance and emission combination and 

compare its allowable emissions of 

visibility-impairing pollutants to the 

table to make the BART exemption 

determination for the source. 

If a BART-eligible source has 

emissions of visibility-impairing 

pollutants that are less than the 

emissions shown on the table for 

sources that are the same distance as the 

source from a Class I area, the State 

could exempt the source from BART. 

Alternatively, if a BART-eligible 

source’s emissions of visibilityimpairing pollutants are greater than the 

emissions shown on the table, the State 

could determine that the source is 

subject to BART. The source would 

have the option of running the 

CALPUFF model, or other EPAapproved model, to demonstrate that its 

visibility impacts do not exceed a 

change in light extinction of 0.5 

deciviews and that it qualifies for 

exemption. 

An example of a look-up table for 

EGUs is shown in the technical memo 

25196 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

25 Ibid.

26Summary of Technical Analyses for the 

Proposed Rule, Mark Evangelista, U.S. 

Environmental Protection Agency, April 12, 2004, 

Docket No. OAR–2002–0076.

27Memorandum to the docket: Summary of 

Alternative Approaches for Individual Source 

BART Exemptions, Todd Hawes, March 12, 2004. 

Docket No. OAR–2002–0076.

28A Screening Method for PSD, Memorandum 

from Bruce P. Miller, U.S. Environmental Protection 

Agency, to Eldewins Haynes, North Carolina 

Department of Natural Resources and Community 

Development, September 12, 1985, Docket No. 

OAR–2002–0076.

to the docket.25 A more in-depth 

discussion of the look-up table 

development is given in the Summary of 

Technical Analysis for the Proposed 

Rule.26 The advantages of the look-up 

tables are that they are easy to use and 

no modeling would be required. 

However, they may be too general to 

represent all source categories. For 

instance, the source category in the 

example is for EGUs. Another source 

category will likely have entirely 

different source and emissions 

characteristics which may require 

development of a separate look-up table. 

Several sets of look-up tables requiring 

several sets of assumptions would be 

cumbersome and complex.

Source Ranking 

A source ranking approach is another 

possible option for determining whether 

an individual source may be exempted 

from BART. This approach would 

require a separate analysis for each 

Class I area. 

First, a State would determine the 

universe of BART-eligible sources 

within a prescribed distance from the 

Class I area. Then, using a predetermined common metric, such as 

total emissions of visibility impairing 

pollutants at each source, a State would 

sort the sources in descending order 

according to the metric and determine 

the cumulative frequency (a running 

total or percentage) of the ranked 

sources according to the chosen metric. 

The sources that fall below a predetermined frequency level could be 

presumed to be insignificant 

contributors, and the State could 

exempt them from BART. A source that 

falls above the pre-determined 

frequency level would be subject to 

BART. The source would have the 

option of running the CALPUFF 

screening model, or other EPA-approved 

model, to demonstrate that its visibility 

impacts do not exceed the threshold 

level and that it qualifies for exemption. 

A more complete and detailed 

explanation of this approach, including 

an example, is available in a memo to 

the docket.27

We request comment on the source 

ranking approach and on an appropriate 

frequency level for determining 

individual source exemption. 

Emissions Divided by Distance (Q/D) 

Method 

Another option for exemption for 

which we request comment is a nonmodeling based approach identified as 

Q/D (with ‘‘Q’’ being allowable 

emissions, in tons per year, and ‘‘D’’

representing the distance, in km, to the 

nearest Class I area, multiplied by a 

prescribed constant). The method, 

originally developed by the North 

Carolina Department of Environment 

and Natural Resources, is a tool to 

eliminate distant, insignificant emission 

sources from ambient assessments 

submitted under the Prevention of 

Significant Deterioration (PSD) 

program.28 The Q/D method determines 

a source to be insignificant if the 

allowable emissions in tons per year (Q) 

divided by a constant times the distance 

in kilometers (D) is greater than a value 

of 1. For example, North Carolina uses 

a constant of 20, which was determined 

empirically. Therefore, a source could 

be considered insignificant if its 

emissions divided by 20 times its 

distance, in km, from the nearest Class 

I area is greater than 1. For this 

application for determining exemption 

from BART, the combined emissions of 

SO2, NOX, and PM2.5 of a BART-eligible 

unit could be divided by the distance to 

the nearest Class I area. If that quotient 

is less than 1, the source would not be 

subject to BART. If a source is not found 

to be exempt under this approach, the 

CALPUFF screening analysis could still 

be used for an exemption determination.

We request comment on the Q/D 

method, including comment on what 

value for the constant would be 

appropriate and why. 

D. The BART Determination Process

Background. Section 169A(g)(7) of the 

CAA requires States to consider the 

following factors in making BART 

determinations: (1) The costs of 

compliance, (2) the energy and nonair 

quality environmental impacts of 

compliance, (3) any existing pollution 

control technology in use at the source, 

(4) the remaining useful life of the 

source, and (5) the degree of 

improvement in visibility which may 

reasonably be anticipated to result from 

the use of such technology. The D.C. 

Circuit’s decision did not address the 

first four steps of the BART 

determination (the ‘‘engineering 

analysis’’), which are discussed in detail 

in the guideline. The court’s opinion 

did address the final step, mandating 

that the degree of improvement in 

visibility that would result from 

imposition of BART on each individual 

source be taken into account in 

determining BART. 

2001 Proposed Rule. Section IV of the 

2001 proposed BART guidelines was 

entitled ‘‘Engineering Analysis of BART 

Options.’’ The purpose of this section 

was to address the requirement in 40 

CFR 51.308(e)(1)(ii)(B) in the regional 

haze rule that States identify the ‘‘best 

system of continuous emissions control 

technology’’ taking into account ‘‘the 

technology available, the costs of 

compliance, the energy and nonair 

quality environmental impacts of 

compliance, any pollution control 

equipment in use at the source, and the 

remaining useful life of the source.’’

Thus, in the 2001 proposed guidelines, 

section IV addressed four of the five 

statutory factors to be considered in the 

BART determination. Section V, 

‘‘Consideration of Visibility Impacts,’’

contained a consolidated discussion, 

addressing visibility considerations in 

deciding both which BART-eligible 

sources should be subject to BART, as 

well as the fifth statutory factor—

assessing the degree of visibility 

improvement which may reasonably be 

anticipated to result from control 

technology. 

Reproposal. In the proposed 

guidelines, we are adding a fifth step to 

the Engineering Analysis. The five 

proposed steps in the engineering 

analysis are as follows: 

1—Identify all available retrofit 

control technologies, 

2—Eliminate technically infeasible 

options, 

3—Rank remaining control 

technologies by control effectiveness, 

4—Evaluate impacts and document 

the results, and 

5—Evaluate the visibility impacts of 

applying controls. 

In this portion of the preamble, we 

discuss a number of other issues. 

1. How does BART relate to maximum 

achievable control technology (MACT) 

standards developed under CAA section 

112? 

In the 2001 proposed rule, we did not 

provide any discussion of the 

relationship of BART controls to MACT 

requirements. A number of commenters 

suggested that there are cases where 

additional controls beyond MACT are 

not warranted. We believe that for VOC 

and PM sources subject to MACT 

standards, States may streamline the 

BART analysis by including a 

discussion of the MACT controls and 

whether any major new technologies 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25197

have been developed subsequent to the 

MACT standards. 

We believe that there are many 

sources, particularly sources of VOC 

and PM emissions, that are wellcontrolled because they are regulated by 

the MACT standards. Examples of 

MACT sources which effectively control 

VOC and PM emissions include (among 

others) secondary lead facilities, organic 

chemical plants subject to the hazardous 

organic national emissions standard for 

hazardous air pollutants (HON), 

pharmaceutical production facilities, 

and equipment leaks and wastewater 

operations at petroleum refineries. (We 

believe this is also true for emissions 

standards developed for municipal 

waste incinerators under the CAA 

amendments of 1990.) In many cases, it 

will be unlikely that States will identify 

emission controls more stringent than 

the MACT standards without 

identifying control options that would 

cost many thousands of dollars per ton. 

Unless there are new technologies 

subsequent to the MACT standards 

which would lead to cost-effective 

increases in the level of control, we 

believe that States may conclude that a 

source meeting MACT standards in 

these cases will satisfy the BART 

requirement. 

The reproposed guidelines have been 

revised to include the discussion of 

MACT standards. The reproposed 

guidelines would require that a State 

identify any source where they are 

relying on MACT standards to achieve 

a BART level of control. Moreover, the 

reproposed guidelines would require a 

State to provide the public with a 

discussion of its decision to rely on a 

MACT standard as BART for a given 

source and pollutant. 

2. How do I identify all available 

retrofit emission control techniques? 

2001 Proposed Rule. In the 2001 

proposed guidelines, we discussed a 

number of concepts regarding the 

identification of ‘‘all available’’ retrofit 

technologies. This discussion noted that 

‘‘all’’ means a reasonable set of 

technologies. For example, the 

guidelines noted that it is not necessary 

to list all permutations of available 

control levels that exist for a given 

technology—the list is complete if it 

includes the maximum level of control 

each technology is capable of achieving. 

The proposed guidelines made clear 

that the list of ‘‘available’’ technologies 

should reflect a comprehensive review, 

including technologies applied outside 

of the United States, and including 

technologies that may have only been 

applied previously to new sources. The 

proposed guidelines noted that control 

measures could include add-on control 

devices, switching to inherently loweremitting processes, or a combination of 

the two. The proposed guidelines stated 

that BART did not require a source to 

undertake a complete replacement of 

the source with a lower-emitting design. 

The guidelines included a list of 

references which are available for 

identifying possible control measures, 

noting that the list was not necessarily 

all-inclusive. Finally, this passage of the 

proposed guidelines noted that sources 

with existing control devices in place 

must consider any available options for 

improving the performance of those 

control devices. 

Comments. We received a few 

comments on this part of the 2001 

proposal. Some comments 

recommended that controls typically 

used at new sources, such as those 

representing best available control 

technology (BACT) or lowest 

acheiveable emission rate (LAER), 

would be more stringent than BART 

should require. One commenter 

representing a utility company noted 

that the requirement to consider all 

controls, including those outside of the 

United States, could be burdensome to 

States. This commenter recommended 

that the analysis be limited to a 

‘‘reasonable range’’ of technologies. 

Reproposal. We are proposing to 

amend the language in the BART 

guidelines on the topic of identification 

of ‘‘all’’ retrofit technologies. We do not 

believe that it is necessary that States 

conduct detailed evaluations of control 

measures that are very unlikely to be 

selected as BART. Accordingly, we 

believe that, in order to reduce the 

administrative burden, States may 

consider developing screening levels 

based on the ‘‘cost effectiveness’’ of 

emissions control (i.e. the cost of 

emission control technology per each 

ton of emissions reduced). We view 

such dollar/ton screening levels as 

criteria for rejecting control options for 

consideration on the basis of costs and 

not as the sole basis for a BART 

decision. The overall BART decision 

must be made in consideration of all of 

the statutory factors. 

We also recognize that there may be 

cases where States may wish to consider 

control measures above whatever 

screening levels they may establish. For 

example, the effect of nitrate particles 

varies and there are a few areas where 

nitrates are likely to be more important 

than for the rest of the nation. Also, a 

few sources may emit levels of NOX

higher than the presumptive control 

level of 0.2 lbs/MMBtu, even after 

consideration of all available control 

technologies (such as low NOX burners 

and other combustion controls) below 

any established screening levels (see 

discussion in section III. 6. below). 

Within the above constraints, we 

believe that the BART analysis should 

begin with a comprehensive review of 

those technologies that could be used to 

reduce emissions from a given BARTeligible source. We note that this 

analysis may be limited to a reasonable 

range of options and need not consider 

all permutations of control levels for a 

given technology.

In this proposal, we are seeking 

comment on two alternative approaches 

for conducting a BART engineering 

analysis. We prefer the first approach. 

Under this first alternative, the BART 

analysis would be very similar to the 

BACT review as described in the New 

Source Review Workshop Manual 

(Draft, October 1990). Consistent with 

the Workshop Manual, the BART 

engineering analysis would be a process 

which provides that all available control 

technologies be ranked in descending 

order of control effectiveness. Under 

this option, you must first examine the 

most stringent alternative. That 

alternative is selected as the ‘‘best’’

unless you demonstrate and document 

that the alternative cannot be justified 

based upon technical considerations, 

costs, energy impacts, and non-air 

quality environmental impacts. If you 

eliminate the most stringent technology 

in this fashion, you then consider the 

next most stringent alternative, and so 

on. 

We also request comment on an 

alternative decision-making approach 

that would not necessarily begin with 

an evaluation of the most stringent 

control option. Under this approach, 

you would have more choices in the 

way you structure your BART analysis. 

For example, you could choose to begin 

the BART determination process by 

evaluating the least stringent technically 

feasible control option or an 

intermediate control option drawn from 

the range of technically feasible control 

alternatives. Under this approach, you 

would then consider the additional 

emission reductions, costs, and other 

effects (if any) of successively more 

stringent control options. Under such an 

approach, you would still be required to 

(1) display and rank all of the options 

in order of control effectiveness, 

including the most stringent control 

option, and to identify the average and 

incremental costs of each option; (2) 

consider the energy and non-air quality 

environmental impacts of each option; 

and (3) provide a justification for 

adopting the control technology that 

you select as the ‘‘best’’ level of control, 

including an explanation as to why you 

rejected other more stringent control 

25198 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

29Technical Support Documentation. Voluntary 

Emissions Reduction Program for Major Industrial 

Sources of Sulfur Dioxide in Nine Western States 

and a Backstop Market Trading Program. An Annex 

to the Report of the Grand Canyon Visibility 

Transport Commission. Section 6A.

technologies. While both approaches 

require essentially the same parameters 

and analyses, we prefer the first 

approach described above, because we 

believe it may be more straightforward 

to implement than the alternative and 

would tend to give more thorough 

consideration to stringent control 

alternatives. 

3. Consideration of Nonair Quality 

Environmental Impacts 

2001 Proposed Rule. The 2001 

proposal called for States to address 

environmental impacts other than air 

quality, and energy impacts, due to 

controlling emissions of the pollutant in 

question. Such environmental impacts 

include solid or hazardous waste 

generation and discharges of polluted 

water from a control device. 

The proposed guidelines contained a 

number of examples of the types of 

nonair quality impacts that should be 

considered. The guidelines noted that 

States should take into account that 

there are beneficial nonair quality 

environmental impacts that could result 

from control measures. For example, 

control measures under consideration 

for BART may reduce acid deposition. 

The guidelines clarified that the 

procedure for conducting an analysis of 

nonair quality environmental impacts 

should be based on a consideration of 

site-specific circumstances. Under the 

proposed guidelines, in Step 3 it would 

not be necessary to perform this analysis 

of environmental impacts for the entire 

list of technologies, if a State proposes 

to adopt the most stringent alternative. 

Instead, the analysis need only address 

those control alternatives with any 

significant or unusual environmental 

impacts that have the potential to affect 

the selection or elimination of a control 

alternative. 

Comments. One utility commenter 

requested that EPA better clarify the 

BART determination factors other than 

costs of compliance. A State commenter 

wanted EPA to explain the bounds of a 

nonair quality review on environmental 

effects, citing possible requirements to 

assess statewide water quality standards 

as an example of how broad and openended the analysis could be. Several 

environmental groups asked us to be 

more specific with respect to 

consideration of the beneficial nonair 

quality related effects of implementing 

emissions controls as part of the BART 

determination. The comments pointed 

out that acid and total nitrogen loading 

affects water quality in rivers, lakes, 

coastal waters and also affects soil 

chemistry. These comments point out 

that these impacts can be magnified at 

higher elevations due to direct cloud 

deposition. Acidic deposition and 

increased nitrogen loading appear to be 

linked to damage to forested 

ecosystems, such as declines in 

sensitive tree species, death of aquatic 

organisms and poor water quality. Some 

comments pointed out that even a 

qualitative assessment of these 

beneficial impacts can inform the BART 

determination and should be part of the 

process. Comments from several 

Midwestern States requested that the 

guidelines provide that incompatibility 

with control for another pollutant, such 

as mercury, should be a criterion for 

rejecting (or modifying) a BART control 

option. 

Reproposal. The Guidelines 

discussion of energy impacts remains 

the same as the discussion in the 2001 

proposal. For nonair quality impacts, we 

agree that more clarification is needed. 

We do not see this factor as requiring an 

open-ended analysis of every affected 

nonair resource. We also do agree with 

commenters that the nonair quality 

assessment should include the 

beneficial effects of control options 

being considered in the BART 

determination. Both quantitative and 

qualitative information can be used in 

this assessment. We do not view this 

factor as requiring States to conduct an 

analysis of every possibly affected 

nonair quality effect, but rather as 

requiring States to consider clearly 

documented nonair quality effects. 

Moreover, we expect the Federal Land 

Managers to provide available 

information for assessing the ability of 

emission controls to reduce impacts on 

forests, soils, native species and other 

resources through the consultation 

requirement for regional haze SIP 

development contained in 40 CFR 

51.308(i)(2)of the regional haze rule. 

This information should identify the 

specific nonair quality effects to 

consider and specific criteria for 

evaluating their significance, so that 

States are not faced with open-ended 

analyses. 

States should also consider other 

information on beneficial effects which 

include specific data on nonair quality 

concerns made available to them, such 

as through public comments, in making 

the BART determination. We also agree 

with the Midwestern States comments 

that when controls for a visibilityimpairing pollutant are shown to be 

incompatible with control of another air 

pollutant, this may create air quality or 

nonair quality related environmental 

concerns that should be taken into 

account in comparing control 

alternatives. At the same time, we note 

that it is important to evaluate fully and 

document the magnitude and nature of 

the concern identified. The mere 

presence of an actual or theoretical 

concern should not be cited as the 

reason for eliminating an option. Also, 

once a source-specific BART 

determination is made for two regulated 

pollutants, if the result is two different 

BART technologies that do not work 

well together, a State could then 

substitute a different technology or 

combination of technologies that 

achieve at least the same emissions 

reductions for each pollutant. 

4. Evaluating the Significance of the 

Costs of Control

2001 Proposed Rule. The 2001 

proposed rule requested comment on 

evaluating the significance of the costs 

of compliance—specifically, on whether 

the guidelines should contain specific 

criteria, and on whether such criteria 

would improve implementation of the 

BART requirement. 

Comments. A few industry 

commenters, and two State commenters, 

suggested that specific criteria for 

evaluating cost, or for comparing cost 

with visibility benefits, should be 

included, but did not suggest what those 

specific criteria should be. Several 

environmental groups and 

environmental consulting firms 

suggested that specific cost criteria 

would not improve BART 

determinations, because BART sources 

and source categories vary considerably. 

Reproposal. We are proposing a 

sequential process for conducting the 

impacts analysis that includes a 

complete evaluation of the costs of 

control. For evaluating the significance 

of the costs of control, we continue to 

request comment on whether such 

criteria would improve implementation 

of the BART requirement. If commenters 

believe such criteria are warranted, we 

request comment on what criteria would 

be appropriate. For example, we request 

comment on whether it would be 

helpful to include criteria such as those 

in the work of the Western Regional Air 

Partnership (WRAP),29 wherein a 

system is described which views as 

‘‘low cost’’ those controls with an 

average cost effectiveness below $500/

ton, as ‘‘moderate’’ those controls with 

an average cost effectiveness between 

$500 to $3000 per ton, and as ‘‘high’’

those controls with an average cost 

effectiveness greater than $3000 per ton.

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25199

30See http://www.epa.gov/airmarkets/epaipm/

results2003.html. This is the Table of Parsed Run 

Data for EPA Modeling Applications Using IPM. 

Most of the 750 MW power plants addressed by this 

provision contain one or more 250 MW boilers 

constructed between 1962 and 1977. Thus, on 

average, most (each) plant emits far more than 

39,000 tons per year of SO2 from units covered by 

the BART requirement.

31 Documentation of the presumption that 90–95 

percent control is achievable is contained in a 

recent report entitled Controlling SO2 Emissions: A 

Review of Technologies, EPA–600/R–00–093, 

available on the internet at http://www.epa.gov/

ORD/WebPubs/so2. This report summarizes 

percentage controls for FGD systems worldwide, 

provides detailed methods for evaluating costs, and 

explains the reasons why costs have been 

decreasing with time.

5. Sulfur Dioxide Controls for Utility 

Boilers 

2001 Proposed Rule. In the 2001 

proposed guidelines, we cited a report 

by EPA’s Office of Research and 

Development to support a presumption 

that, for utility boilers where there is no 

existing control technology in place, a 

90–95 percent reduction in SO2 is 

generally cost effective to achieve using 

scrubbers. This document is entitled 

Controlling SO2 Emissions: A Review of 

Technologies, EPA–600/R–00–093. We 

also provided, in a memorandum to the 

docket for the proposal, calculations 

showing scrubber costs of about $200–

$1000 per ton of SO2 removed for the 

90–95 percent control levels. The 

proposal made clear that we would 

allow States to consider case-by-case 

variations (for example, type of fuel 

used, severe space limitations, and 

presence of existing control equipment) 

that could affect the costs of applying 

retrofit controls. We requested 

comments on whether the 90–95 

percent presumption is appropriate or 

whether another presumption should be 

established instead. 

Comments. We received many 

comments on the 90–95% control 

presumption for utility boilers. 

Many utility industry comments were 

critical of the presumptive level. These 

comments did not address whether the 

90–95 percent level was achievable, nor 

did they address EPA’s cost 

calculations. Instead, the comments 

were generally critical of the provision 

as a Federal mandate that would reduce 

State flexibility in making BART 

determinations. 

Comments from States in the 

Northeast and from environmental 

groups were generally supportive of the 

presumptive levels of control. Some of 

these comments expressed concerns that 

the technology may advance to greater 

levels of achievable control before 

BART decisions are made. Accordingly, 

those comments recommended that we 

add language to the final guidelines to 

ensure that the 90–95 percent level 

would not be considered to represent 

the maximum level of control that States 

could consider. 

Comments from several Midwestern 

States recommended that the 

presumptive level be expressed as a 

performance level, for example as a 

pounds/million BTU level, rather than 

as a percent control level. These 

comments expressed concerns that 

facilities which have already reduced 

emissions for purposes of the acid rain 

program could inappropriately be 

treated in the same way as those that 

had not yet reduced their emissions. 

Reproposal. In today’s action 

reproposing the BART guidelines, we 

are proposing a level of SO2 control that 

is generally achievable for electric 

generating units (EGU)s of a certain size. 

Specifically, we are proposing that in 

establishing BART emission limits, 

States, as a general matter, must require 

owners and operators of greater than 

750 MW power plants to meet specific 

control levels of either 95 percent 

control, or controls in the range of .1 to 

.15 lbs/MMBtu, on each EGU greater 

than 250 MW. We are proposing to 

establish such a default requirement 

based on the consideration of certain 

factors discussed below. Although we 

believe that this level of control is likely 

appropriate for all greater than 750 MW 

power plants subject to BART, a State 

may establish a different level of control 

if the State can demonstrate that an 

alternative determination is justified 

based on a consideration of the evidence 

before it. In addition, for power plants 

750 MW and less in size, we are 

establishing a rebuttable presumption 

that States should require any EGU 

between 250 MW and 750 MW in size 

to meet these same control levels.

This presumption would apply unless 

the State has persuasive evidence that 

an alternative determination is justified. 

Our intent is that it should be 

extrememly difficult to justify a BART 

determination less than the default 

control level for a plant greater than 750 

MW, and just slightly less difficult for 

a plant 750 MW or smaller. 

As stated earlier, by specifically 

singling out, in section 169A of the 

CAA, a specific set of existing sources 

to be addressed by the States (or the 

Administrator) in their plans, Congress 

clearly signaled through the BART 

requirements a particular concern that 

the States and EPA focus on pollution 

from these sources. The CAA gives the 

States the authority ‘‘to decide which 

sources impair visibility and what 

BART controls should apply to those 

sources.’’ American Corn Growers v. 

EPA, 291 F.3d at 8. However, section 

169A further states that ‘‘[i]n the case of 

a fossil-fuel fired generating plant 

having a total generating capacity in 

excess of 750 MW, the [BART] emission 

limitations * * * shall be determined 

pursuant to guidelines’ issued by EPA. 

This language, and the legislative 

history, indicate that although Congress 

generally left the determination of 

BART emission limits to the States 

(subject to the requirements of EPA’s 

implementing regulations), it intended 

EPA to take a more active role in the 

process of establishing BART emission 

limits for large power plants. 

Furthermore, the legislative history from 

1977 makes clear that Congress 

understood 25 years ago that a specific 

type of SO2 controls (flue gas 

desulfurization (FGD) or ‘‘scrubbers’’) 

was readily available for these plants. 

We believe it is consistent with 

Congress’ mandate that EPA establish 

guidelines for determining BART 

emission limitations for this category of 

sources and, given the availability and 

low cost of controls for these sources, 

for EPA to require that these power 

plants meet specific control levels, 

unless the State has persuasive evidence 

that an alternative determination is 

justified. 

In addition to the statutory language 

and the legislative history, we believe 

that requiring specific BART emission 

limitations for greater than 750 MW 

power plants in most cases is supported 

by sound policy considerations and a 

careful review of the information we 

have regarding these sources’ emissions, 

costs of control, and impacts on 

visibility. First, sulfates resulting from 

SO2 emissions are an important 

contributor to visibility impairment 

nationwide, and preliminary data that 

we have suggests that the estimated 28 

BART-eligible EGUs located at 750 MW 

power plants emit over one million tons 

of SO2 per year, or, on an individual 

EGU basis, an average of over 39,000 

tons of SO2 per year.30 In other words, 

these sources are some of the largest 

emitters of SO2 in the United States.

Second, as discussed below, highly 

effective control technologies (i.e., FGD) 

are available to control SO2 emissions 

from utility boilers; the average costs 

per ton of emissions removed from such 

EGUs (usually between $200 and $1300 

per ton) are well within the levels 

considered for application under many 

CAA regulatory programs. Based on the 

cost models in the Controlling SO2

Emissions report,31 for example, it 

appears that, where there is no existing 

control technology in place, 95 percent 

control can generally be achieved at 

EGUs using coal with relatively high 

25200 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

32We have used the cost models in the 

Controlling SO2 Emissions report to calculate costeffectiveness ($/ton) estimates for FGD technologies 

for a number of example cases. (See note to docket 

A–2000–28 from Tim Smith, EPA/OAPS, December 

29, 2000). We also believe it is reasonable to expect 

States to consider the maximum level that these 

scrubbers are capable of achieving. Thus, for 

example, we believe that a scrubber installation 

which allowed part of the flue gas stream to bypass 

the scrubber and remain uncontrolled, or be 

controlled to a lesser degree, should not be 

considered to represent BART. 33 Ibid. 34Summary of Technical Analyses for the 

Proposed Rule, Mark Evangelista, U.S. 

Environmental Protection Agency, April 12, 2004, 

Docket No. OAR–2002–0076.

35Examples of SO2 control calculations for 

various sulfur contents in bituminous coal, Note 

from Todd Hawes to Docket OAR–2002–0076, April 

8, 2004.

sulfur content at cost-effectiveness 

values cited above.32 Similarly, for 

EGUs using relatively low sulfur coal, 

reducing SO2 emission levels to 0.1 to 

0.15 lbs/MMBtu is also cost-effective as 

compared to other measures to reduce 

pollution, falling within the same range 

of cost effectiveness as that discussed 

above.33

Third, we believe that individual 

BART-eligible EGUs subject to this 

provision contribute substantially to 

visibility impairment in Class I areas. 

For example, based on modeling runs 

using CALPUFF for a typical 250 MW 

EGU, modeling results have shown 

visibility effects greater than 7 

deciviews at Class I areas at distances of 

200 km.34 At 90 percent control for a 

250 MW source, the maximum modeled 

impact would improve to 1.3 deciviews. 

A 95 percent control level would yield 

further substantial improvement in 

visibility to just under 1 deciview. Note 

however that even at a 95 percent 

control level, just one source can have 

maximum impacts above the threshold 

of the visible range (0.5 deciviews) and 

may still impair visibility at the nearest 

Class I area.

Therefore considering the range of the 

costs of compliance for these sources 

and the degree of improvement in 

visibility that may be anticipated from 

the use of the highly effective control 

technologies that are available for these 

sources, we have determined that it is 

appropriate to establish in these 

guidelines specific control levels for 

States to use in determining BART for 

these sources. We are proposing that as 

a general matter, States must find that 

for EGUs greater than 250 MW at 750 

MW power plants subject to BART, the 

appropriate BART emission limitation 

reflects either at least 95 percent 

control, or a comparable performance 

level of 0.1 to 0.15 lbs of SO2 per 

million BTU range, unless the State has 

persuasive evidence (as discussed 

below) that an alternative determination 

is justified. We are proposing a performance level 

as an alternative to a percentage 

reduction to account for the difference 

between coal with higher, as opposed to 

lower, sulfur content. As noted, we 

received comments on the proposed 

2001 BART guidelines that the control 

technology presumption should be 

expressed as a performance level (lb/

million BTU) rather than as a percentage 

control. In response to these comments, 

we are taking into account the fact that 

the actual level of performance after 

application of scrubber technologies 

will be influenced not only by the 

percentage control, but also by the 

sulfur content of the fuel used. 

As discussed above, we believe that 

this proposal of 95 percent control, or a 

comparable performance level of 0.1 to 

0.15 lbs of SO2 per million BTU, 

represents controls that are achievable 

at reasonable cost-effectiveness levels. 

These control levels are functionally 

equivalent to the 90–95% control levels 

contained in the 2001 proposal. 

However the choice between 95 percent 

and an emission rate in the range of 0.1 

to 0.15 lbs/MMBtu better reflects a 

recognition of the differences in overall 

emissions that are achievable by using 

different coal types. For example, coal 

boilers in the West generally use lower 

sulfur content Western coals. The low 

end of the range in the 2001 proposal 

recognized that dry scrubbers employed 

in the West would have difficulty 

achieving a 95% level of control. 

However, the 2001 proposal did not 

explicitly recognize that 90% control in 

the West may actually represent a lower 

overall sulfur emission rate, given the 

lower sulfur content in the coal used. 

Conversely, wet scrubbers employed in 

the East could easily get 95% control or 

more. But because Eastern coal boilers 

generally use higher sulfur content 

Eastern coals, the overall sulfur 

emission rate might still remain higher 

in the East than in the West.

While emission rates vary by both 

sulfur content and scrubber type, the 

following table illustrates demonstrated 

control efficiencies for the West and 

East. 

Emission Rates and Scrubber Control 

Percentages for Bituminous Coal

EMISSION RATES AND SCRUBBER CONTROL PERCENTAGES FOR BITUMINOUS COAL

Sulfur

Coal

(percent) 

Scrubber

(percent) 

SO2/MMBtu

(lbs) 

WEST

0.7 90 0.10 

1.0 90 0.15 

EMISSION RATES AND SCRUBBER CONTROL PERCENTAGES FOR BITUMINOUS COAL—Continued

Sulfur

Coal

(percent) 

Scrubber

(percent) 

SO2/MMBtu

(lbs) 

EAST

2.5 95 0.18 

2.5 96 0.15 

Assume: 13,000 lb Coal/Btu and 1 MW 

= 10.5 x 106 Btu/hr, from AP–42 35

We request comment on whether 

these control levels are appropriate, or 

whether different levels should be 

established instead. We also request 

comment on which specific target 

number in the 0.1 to 0.15 lb/million 

BTU range should be considered to 

represent BART, especially for those 

EGUs that cannot achieve 95 percent 

control. For whatever target levels 

commenters wish to offer, they should 

provide documentation supporting the 

basis for their proposals. 

Although we are proposing to 

establish a requirement that these 

control levels are BART for 250 MW 

EGUs at greater than 750 MW power 

plants that are subject to BART, States 

would still have the ability to take into 

account any unique circumstances that 

support an alternative determination. 

The CAA identifies five factors that the 

States generally must consider in 

making a BART determination. CAA 

section 169A(g)(2). If, in any specific 

case, the State finds that these factors 

demonstrate that the presumed control 

levels do not represent BART, we 

propose that the State may make a 

reasoned determination as to the 

appropriate level of control. If a State 

chooses to deviate from the required 

level, it must provide documentation 

supporting and explaining its 

determination. 

Nevertheless, we believe that it would 

be extremely difficult to argue, in any 

instance, that the above control levels 

should not be determined to be BART 

for these units at these large power 

plants. For the reasons outlined above, 

we believe that only in extremely rare 

and unique circumstances could a State 

determine that such controls are not 

cost effective, or that the visibility 

impact of such a plant does not warrant

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25201

36Zipper and Gilroy, Sulfur Dioxide Emissions 

and Market Effects under the Clean Air Act Acid 

Rain Program (Air and Waste Management 

Association, 1998, vol. 48, pp. 829–37) shows that 

capital costs for FGD fell by 50 percent between 

1989 and 1996. See http://www.awma.org/journal/

ShowAbstract.asp?Year=1998&PaperID=748.

37See also, Market-Based Advanced Coal Power 

Systems—Final Report (Office of Fossil Energy, US 

Department of Energy, 1999), section 1, at http://

fossil.energy.gov/programs/powersystems/

publications/marketbasedsystems/.

38See http://www.epa.gov/airmarkets/epaimp/

#documentation. This is the NEEDS (National 

Electric Energy System) Database for IPM V.2.1, 

NEEDS (National Electric Energy System) Database 

for IPM 2003. The NEEDS database contains the 

generation unit records used to construct the 

‘‘Model’’ plants that represent existing and 

planned/committed units in EPA modeling 

applications of IPM. NEEDS includes basic 

geographic, operating, air emissions, and other data 

on all the generation units that are represented by 

‘‘model’’ plants in EPA’s v. 2.1 update of IPM. See 

Chapter 4 of the Documentation Report (link) for a 

discussion of the data sources underlying NEEDS.

39See http://vista.cira.colostate.edu/improve/

Publications/Reports/2000/PDF/

Cahpter3final100.pdf. These are summary statistics 

of exctinction by species from the IMPROVE 

network.

such controls. We also believe that only 

under extreme circumstances would 

consideration of any of the remaining 

three factors (energy and nonair quality 

environmental impacts, existing 

pollution control technology in place, 

and remaining useful life of the source) 

suggest that these control levels are too 

stringent to be determined to be BART. 

For example, a source might show proof 

that it will be shutting down within the 

next 5 years. Or a source might be 

located in a remote desert area, where 

use of water for FGD would deplete an 

aquifer. As discussed above, however, 

in the vast majority of cases, we believe 

that these control levels should be 

considered to represent BART. 

In addition, the control levels at issue 

are based on our understanding of the 

current capabilities of scrubbers, as well 

as the costs faced by the utility industry 

for installing these controls. We 

recognize that it is possible that 

capabilities of scrubber technologies 

may improve and it is likely that 

scrubber costs will continue to decline 

as scrubber technologies improve.36 37

Accordingly, we have added a brief 

discussion to the reproposed guidelines 

to ensure that States take into account 

updated information on scrubber 

performance as scrubber technology 

improves.

We also believe that States should 

find that the control levels described 

above are cost effective for all utility 

boilers greater than 250 MW in size, 

regardless of the size of the power plant 

at which they are located. There appears 

to be no significant difference in utility 

boilers at power plants that are greater 

than 750 MW, and those 750 MW or 

less, other than the number of boilers 

located at the facility. For the most part, 

plants greater than 750 MW generally 

consist of multiple units, many of which 

are smaller than 750 MW each.38 Absent 

unusual circumstances which would 

lead to substantially higher costs than 

for typical facilities, a utility boiler 

greater than 250 MW in size should be 

able to achieve either a 95 percent 

reduction in SO2 emissions or a 

comparable performance level of 0.1 to 

0.15 lbs/MMBtu at a very reasonable 

cost. We request comment on whether 

this level of control is reasonable for 

such sources. Such unusual 

circumstances could be similar to the 

examples cited above with regard to 

greater than 750 MW plants (that a 

source might show proof that it will be 

shutting down within the next 5 years, 

or a source might be located in a remote 

desert area, where use of water for FGD 

would deplete an aquifer.) Although the 

hurdle for not achieving the default 

control level for greater than 750 MW 

plants is intended to be higher than the 

hurdle for less than 750 MW plants, we 

are unable to think of an example that 

would apply to 250 MW units and 

above at one size plant but not the other. 

We request comment on any such 

examples that might exist.

6. Nitrogen Oxide Controls for Utility 

Boilers 

Background. In addition to being a 

major source of SO2 emissions, EGUs 

and other combustion units are a major 

source of NOX emissions. NOX

emissions also contribute to regional 

haze, both through formation of light 

scattering nitrate particles in a manner 

similar to sulfate formation from SO2

emissions, but also through promoting 

the formation of sulfate particles. Based 

on an examination of the contribution to 

haze in Class I areas from the IMPROVE 

network, SO2 emissions comprise the 

most significant contribution. However, 

in some areas and at some times, the 

NOX contribution can be greater than 

the SO2 contribution. Also, NOX

emissions can be an important direct 

and indirect contributor to PM2.5 

formation. In addition, in areas with 

high EGU SO2 and NOX contributions, 

a reduction only of SO2 emissions 

would result in nitrate ‘substitution’ for 

sulfates, reducing the regional haze 

benefits.39

2001 Proposed Rule. In discussing the 

process for identifying all available 

retrofit emission control techniques in 

the 2001 proposed guidelines, we 

identified general information sources 

that address NOX control strategies (66 

FR 38123). The proposed guidelines, 

however, did not contain a detailed 

discussion of available NOX control 

strategies for utilities.

Comments. We received several 

comments from environmental and 

multi-state organizations requesting that 

we specifically address technologies for 

control of NOX at BART sources. These 

commenters provided information 

showing that NOX emissions result in 

the formation of visibility-impairing 

nitrate particles. In addition, these 

commenters requested that we establish 

a presumptive 90 percent removal of 

emissions of NOX from currently 

uncontrolled utility boilers. The 

commenters provided information 

regarding the level of visibility 

impairment in Class I areas, as well as 

in urban areas, created by secondary 

particles related to emissions of NOX. 

The commenters noted that, while 

nitrate contributes less to visibility 

impairment, relative to sulfate, on the 

worst impaired days in summer, it has 

a more significant role in visibility 

impairment in winter when some of the 

worst days occur. In addition, the 

commenters point out that major 

reductions in SO2 emissions, and the 

ammonium sulfate particles they create 

in the atmosphere, could lead to 

increases in nitrate particles. The reason 

for this is that reductions in ammonium 

sulfate particles could ‘‘free up’’

ammonia, making it available to form 

ammonium nitrate particles. The 

commenters argued that BART should 

control SO2 and NOX simultaneously. 

In addition to direct visibility 

concerns in and around Class I areas, 

commenters stated that NOX emissions 

reductions would contribute to 

improved public health. One 

commenter noted that reductions of 

NOX emissions from BART sources 

would result in enhanced benefits to 

ecosystems in high elevation Class I 

areas. Another commenter noted 

increasing trends in particulate nitrate 

concentrations at several Class I areas 

and suggested that EPA conduct a 

review of technologies, similar to the 

ORD report on SO2 emissions controls, 

to be used as basis for a presumptive 

level of control. 

Reproposal. We agree that emissions 

of NOX from sources subject to BART, 

and the resulting nitrate particles 

formed by NOX in the atmosphere, 

should be appropriately addressed in a 

BART analysis. We also agree with 

commenters that greater control of SO2

at large coal-fired utility plants may 

result in greater availability of NOX in 

the atmosphere. Recent data from EPA’s 

IMPROVE monitoring networks 

confirms that the contribution of 

25202 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

40See http://wrapair.org/forums/ioc/meetings/

030728/index.html (especially presentation by John 

Vimont, National Park Service).

41An overview of NOX control technologies is 

available at the following Web site: http://

www.fetc.doe.gov/coalpower/environment/nox/

index.html.

42See http://www.epa.gov/ttn/catc/

products.html#cccinfo (EPA Air Pollution Control 

Cost Manual), section 4 (NOX controls), chapter 2.

43See http://www.epa.gov/airmarkets/epa-ipm/

#documentation. This is the NEEDS Database for 

IPM V.2.1, the NEEDS Database for IPM 2003. The 

NEEDS database contains the generation unit 

records used to construct the ‘‘model’’ plants that 

represent existing and planned/committed units in 

EPA modeling applications of IPM. The NEEDS 

database includes basic geographic, operating, air 

emissions, and other data on all the generation 

units that are represented by ‘‘model’’ plants in 

EPA’s v. 2.1 update of IPM. See Chapter 4 of the 

Documentation Report for a discussion of the data 

sources underlying NEEDS. Data on units, their 

controls and characteristics are also part of the 

NEEDS database.

44 In 1998, we issued a rule requiring a number 

of Eastern States to reduce the summertime 

emissions of NOX from sources within these States. 

63 FR 57356, October 27, 1998). As a result of this 

rule, 19 States and the District of Columbia have 

required power plants to reduce NOX emissions 

seasonally.

45See Status Report on NOX Control 

Technologies and Cost-Effectiveness for Utility 

Boilers, Northeast States for Coordinated Air Use 

Management and Mid-Atlantic Regional Air 

Management Association, June 1998, at: http://

www.nescaum.org/pdf/execsum_nox.pdf.

46The EPA Clean Air Market Division’s ‘‘Cost 

Tool’’ gives information on control effectiveness 

(dollar/ton removed) and overall NOX control 

efficiencies for various control technologies.

47http://www.epa.gov/airmarkets/epa-ipm/

#documentation This is the Documentation Report 

(2003 Analyses), and Documentation Report (V. 2.1 

Update). Data on units, their controls and 

characteristics are also part of the NEEDS database, 

referenced above.

nitrates to visibility impairment is 

significant, and may be increasing, at a 

number of sites in the West.40

The approach to assessing the 

available methods for removal of NOX

differs from the approach used to assess 

controls for removal of SO2. The 

engineering approach for removal of 

SO2 from existing combustion sources is 

generally removal technology applied to 

the flue gas stream. For reducing 

emissions of NOX at existing 

combustion sources, there are two 

somewhat distinct engineering 

approaches available.41 One is to use 

combustion modifications (including 

careful control of combustion air and/or 

low-NOX burners) and the other is 

removal technology applied to the flue 

gas stream (selective catalytic reduction 

(SCR) or selective non-catalytic 

reduction (SNCR)). These overall 

techniques can be applied alone or in 

combination.

Unlike the methods for controlling 

SO2, which overall fall within a fairly 

narrow range of cost effectiveness and 

control efficiencies, the removal 

efficiencies and costs associated with 

the two overall categories of control 

techniques for NOX vary considerably, 

depending upon the design and 

operating parameters of the particular 

boiler being analyzed.42 In general 

combustion controls and low-NOX

burners are cost effective for utility 

boilers burning sub-bituminous coal, 

and may be less cost effective for units 

burning lignite.43

In this rulemaking, we are proposing 

that States, in establishing BART 

emission limits for NOX, must, as a 

general matter, require sources to 

determine BART as discussed below. 

For sources currently using controls 

such as SCR to reduce NOX emissions 

during part of the year, we are 

proposing that a State should presume 

in a BART determination that using 

these same controls year-round would 

be cost effective.44 As the most 

significant costs associated with SCR are 

capital costs, the additional costs of 

operating this control technology 

throughout the year would be relatively 

modest.45

For all other power plants subject to 

BART, we believe that States should 

require the lowest emission rate that can 

be achieved without the installation of 

post-combustion controls. Thus, we are 

proposing that the States must, as a 

general matter, require these sources to 

achieve a control level of 0.2 lbs/

MMBtu.46 We are proposing to establish 

such a presumption because for most of 

the utilities subject to this rule, a 0.2 lb/

MMBtu emission rate can be generally 

achieved through the use of combustion 

controls or low-NOX burners. We 

request comment on this emission rate. 

We also request comment on whether 

another emission rate higher or lower 

than 0.2 lb/MMBtu reflects an emission 

rate that can generally be achieved 

through the use of combustion controls 

or low-NOX burners. These controls are 

applicable to most EGUs, are relatively 

inexpensive,47 and are already widely 

applied. We recognize that a small 

number of the largest power plants may 

need to install an SCR unit to meet this 

control level. In such relatively rare 

cases, a State, at its discretion, may find 

SCR to be appropriate if the source 

causes visibility impacts sufficiently 

large to warrant the additional capital 

cost.

Notwithstanding the general 

assessment presented above, we ask for 

comment in particular on the question 

of what rate of NOX emissions can be 

achieved with low NOX burners or 

advanced combustion controls on 

certain specific types of boilers. For 

instance, we recognize that some wallfired dry bottom boilers may not be able 

to meet an emissions rate of 0.2 lb/

MMBtu without post-combustion 

controls. Similarly, we also recognize 

that, without post-combustion controls, 

wet bottom, cyclone, and cell burners 

probably cannot achieve a rate of 0.2 lb/

MMBtu due to unique design and 

operational characteristics, such as 

relatively small furnace size or 

relatively large heat release rate. We also 

seek comment on the impact of coal 

rank on NOX emissions rates that can be 

achieved without post-combustion 

controls.

If you choose to comment on any of 

these issues, please provide data or 

technical information supporting your 

comments and recommendations. 

We believe that States should 

determine in almost every case that 

these control levels represent a 

reasonable determination of BART for 

large EGUs. As discussed above, 

achieving these emissions reductions is 

generally cost effective. In addition, as 

commenters on the 2001 guideline 

noted, nitrates contribute significantly 

to regional haze. Thus, a State 

considering the costs of meeting these 

control levels and the degree of 

improvement in visibility should, in 

most instances, find that at a minimum, 

these controls represent BART. We 

acknowledge that there could be unique 

or extreme circumstances, for those few 

of the largest EGUs that cannot achieve 

0.2 lbs/MMBtu without SCR or SNCR, 

under which a State might find SCR or 

SNCR to be unreasonable. We request 

comment on what specific 

circumstances might exist, if any, to 

justify a lesser degree of control. 

Commenters should provide 

documentation for any such examples. 

7. Consideration of Visibility Impacts. 

2001 Proposed Rule. Under the 2001 

proposed guidelines, States would have 

been required to use a regional 

modeling analysis to assess the 

cumulative impact on visibility of the 

controls selected in the engineering 

analysis. States would use this 

cumulative impact assessment to make 

a determination of whether the controls, 

in their entirety, provide a sufficient 

visibility improvement to justify 

installation. 

Comments. We received many 

comments regarding the cumulative 

nature of our process for considering the 

degree of visibility improvement. These 

commenters believed that the degree of 

visibility analysis should consider 

source-specific visibility impacts. These 

commenters also asserted that our 

process was not consistent with the 

requirements for BART in the CAA. 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25203

48PLUVUEII is a model used for estimating visual 

range reduction and atmospheric discoloration 

caused by plumes resulting from the emissions of 

particles, nitrogen oxices, and sulfur oxides from a 

single source. The model predicts the transport, 

dispersion, chemical reactions, optical effects and 

surface deposition of point or area source 

emissions. It is available at http://www.epa.gov/

scram001/tt22.htm#pluvue.

Reproposal. The fifth statutory factor 

addresses the degree of improvement in 

visibility which may reasonably be 

anticipated to result from the use of 

control technology. The American Corn 

Growers decision, discussed in detail in 

section II above, vacated the approach 

in the regional haze rule of requiring 

States to assess the degree of visibility 

improvement from the imposition of 

controls on all sources subject to BART 

in a State. We understand the court 

decision to require that we allow for an 

analysis of impacts that focuses on each 

individual source undergoing a BART 

determination. 

Therefore, this reproposal focuses on 

the use of single source emissions 

modeling for assessing the degree of 

improvement in visibility from various 

BART control levels. For the purpose of 

the BART determination, a State or 

individual source would run the 

CALPUFF model, or other EPAapproved model, using source-specific 

and site-specific data. We recognize that 

such models may be useful in analyses 

where modeling results alone are not 

determinative of regulatory 

consequences. We believe that 

CALPUFF is based on sufficiently sound 

technical grounds to inform regulatory 

decisions that are based on a cumulative 

weight of evidence such as the 

statutorily-defined factors for 

consideration in assessing BART for 

regional haze. 

For sources subject to BART that are 

located greater than or equal to 50 km 

from all receptors in a Class I area, the 

State or source would run the model at 

the current allowable emissions level, 

and then again at the post-control 

emissions level (or levels) being 

assessed. Results would be tabulated for 

the average of the 20% worst modeled 

days at each receptor. The difference in 

the resulting level of impairment 

predicted is the degree of improvement 

in visibility expected. For example, if 

the average impact from the 20% worst 

days for a source’s pre-control emission 

rate for a particular receptor is a change 

of 1.0 deciviews, and its post-control 

impact is 0.4 deciviews, the net 

visibility improvement is 0.6 deciviews 

(60 percent). All receptors in the Class 

I area should be analyzed. 

For sources subject to BART that are 

located less than 50 km from a Class I 

area, the State would use its discretion 

in determining visibility impacts for 

current allowable versus post-control 

emissions giving consideration to both 

CALPUFF and other EPA-approved 

methods such as PLUVUEII.48 We 

request comment on this and other 

possible approaches to calculating the 

degree of visibility improvement 

expected for sources located less than 

50 km from a Class I area.

We also note that the proposed 

methodology is for Regional Haze Rule 

BART determination only; other metrics 

may be used for BART determinations 

made in response to certification of 

impairment by a Federal Land Manager. 

Alternatively, we are requesting 

comment on the option of using the 

hourly modeled impacts from CALPUFF 

and assessing the improvement in 

visibility based on the number of hours 

above the 0.5 deciview threshold for the 

pre- and post-control emission rates. We 

also request comment on combinations 

of the proposed and alternative options 

above. For example, the deciview 

change for each hour of the 20% worst 

modeled days could be assessed. 

Finally, we request comment on the use 

of the simpler screening version of 

CALPUFF to do the analysis. 

E. Trading Program Guidance 

Background. The regional haze rule 

allows States the option of 

implementing an emissions trading 

program or other alternative measure 

instead of requiring BART (40 CFR 

51.308(e)(2)). This option provides the 

opportunity for achieving better 

environmental results at a lower cost 

than under a source-by-source BART 

requirement. A trading program must 

include participation by BART sources, 

but may also include sources that are 

not subject to BART. 

2001 Proposed Rule. In the 2001 

proposed guidance, we provided an 

overview of the steps involved in 

developing a trading program consistent 

with 40 CFR 51.308(e)(2). We focused 

this discussion on emission cap and 

trade programs which we believe will be 

the most common type of economic 

incentive program (EIP) developed as an 

alternative to BART. The BART 

guidelines discussed three basic steps 

for cap and trade programs: (1) 

Developing emission budgets; (2) 

allocating emission allowances to 

individual sources; and (3) developing a 

system for tracking individual source 

emissions and allowances. 

The proposal noted that an emissions 

budget generally represents a total 

emissions amount for a single pollutant 

such as SO2. As noted in the preamble 

to the regional haze rule (64 FR 35743, 

July 1, 1999), we believe that unresolved 

technical difficulties generally preclude 

interpollutant trading for addressing 

visibility impairment. 

Once an emissions budget or ‘‘cap’’ is 

set, the next step in an emission trading 

program alternative to BART is to issue 

allowances to individual sources, 

consistent with the cap. Once the 

allowances are established, it is also 

necessary to have in place a tracking 

system to ensure that the allowances are 

met.

In the 2001 proposed guidelines, we 

did not include detailed 

recommendations on how to allocate 

emissions or how to develop a tracking 

system. We noted that it would not be 

appropriate for us to require a particular 

process and criteria for individual 

source allocations. The 2001 proposal 

noted that we did, however, agree to 

provide information on allocation 

processes to State and local agencies. 

Comments. Regarding the sources to 

include in a trading program, some 

commenters suggested that a trading 

program could be expanded beyond the 

set of BART-eligible sources. 

With regard to the geographic area 

covered by a trading program for BART, 

the WRAP enquired whether the 

backstop emissions trading program 

under section 309 of the regional haze 

rule could be expanded to other western 

States when they submit their section 

308 SIPs. 

Comments from the environmental 

officials for Indian Tribes suggested that 

the guidelines should ensure that some 

number of allowances are set aside for 

Tribes. Otherwise, the commenters 

believed that a trading program may 

perpetuate historical barriers to 

economic development in Indian 

country. 

Reproposal. The reproposed 

guidelines largely reflect the same 

overall approach and level of detail as 

the 2001 proposal. We continue to 

believe that the trading program 

alternative provided by the regional 

haze rule can serve to reduce the 

administrative burden of the program 

while providing greater long-term 

environmental benefits. We discuss 

specific issues below. 

Consistent with the regional haze 

rule, we propose that the guidelines 

continue to require participation by 

BART sources and allow for the option 

of additional participation. We note that 

by enlarging the universe of sources 

affected, it will be more likely that more 

sources with relatively low-cost 

emission reduction potential will be 

included. Therefore broader 

participation in the program is likely to 

25204 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

49Letter from Lydia Wegman to Rick Sprott, 

Director, Utah Division of Air Quality, July 31, 

2002.

provide greater opportunities for 

emissions trading and cost savings. In 

addition, regional trading programs can 

potentially lower transaction costs and 

produce efficiencies by creating uniform 

requirements for firms which operate 

sources in multiple states. Therefore, we 

believe that States should consider 

whether it is appropriate to design and 

implement a trading program in 

conjunction with other States. 

Consistent with this overall approach, 

in the proposed Interstate Air Quality 

rule (IAQR) (69 FR 4566, January 30, 

2004), we requested comment on 

whether compliance with the IAQR by 

affected EGUs in affected States would 

satisfy, for those sources, the BART 

requirements of the CAA, provided that 

a State imposes the full amount of SO2

and NOX emissions reductions on EGUs 

that the IAQR deemed highly cost 

effective. We are in the process of 

evaluating those comments. Based on 

our current evaluation, we believe the 

IAQR, as proposed, is clearly better than 

BART for those affected EGUs in the 

affected States which we propose to 

cover under the IAQR. We thus expect 

that the final IAQR would satisfy the 

BART requirements for affected EGUs 

that are covered pursuant to the final 

IAQR. 

We continue to believe that there are 

no legal or regulatory obstacles to 

expanding the WRAP trading program 

to other States in the WRAP area, 

provided that technical analyses 

support such a plan.49 Consistent with 

the regional haze rule, such a program 

must demonstrate greater reasonable 

progress for the Class I areas affected by 

sources in those States. We continue to 

request comment on how greater 

reasonable progress could be 

demonstrated, including in particular 

on whether overall visibility 

improvements across Class I areas, on 

balance, would be sufficient to 

determine that such a trading program 

is ‘‘better than BART.’’

Finally, in 1980, we published 

regulations addressing visibility 

impairment from one or more sources 

close to a Class I area. This type of 

visibility impairment is referred to as 

‘‘reasonably attributable’’ impairment 

under the 1980 regulations. These 

regulations included a requirement for 

BART to address reasonably attributable 

impairment in 40 CFR 51.302. Given 

that these requirements remain in place 

even after publication of the regional 

haze rule, one issue needing 

clarification in the BART guidelines is 

the interface between these BART 

requirements established in 1980 and 

the requirements for BART under the 

regional haze program, and between the 

1980 BART requirements and the 

provisions of a trading program 

alternative to BART. 

We believe that the proposed 

guidelines appropriately clarify that the 

1980 provisions for reasonably 

attributable impairment, including the 

BART requirement, remain in effect 

until the BART requirement is satisfied. 

We believe that it is relatively unlikely 

that many—if any—sources will be 

found to be subject to the 1980 BART 

requirement, given that Federal Land 

Managers (FLMs) have certified 

impairment on only a few occasions 

since 1980. Nonetheless, if evidence 

were to suggest that an individual 

source was causing localized visibility 

impairment, we believe that it would be 

improper to remove FLMs’ and States’

ability to craft a solution using the tools 

provided by our visibility regulations. 

We note that the regional haze rule 

includes provisions allowing 

‘‘geographic enhancements’’ to trading 

programs that can address local 

visibility concerns up front. 

Accordingly, we continue to believe that 

States and FLMs have the ability to 

provide assurances to sources that any 

trading program established for regional 

haze will satisfy all of the BART 

provisions in EPA’s visibility 

regulations. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), EPA must 

determine whether the regulatory action 

is ‘‘significant’’ and, therefore, subject to 

Office of Management and Budget 

(OMB) review and the requirements of 

the Executive Order. The Order defines 

‘‘significant regulatory action’’ as one 

that is likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impacts of entitlements, grants, user 

fees, or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order.

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that this rule is a ‘‘significant regulatory 

action,’’ thus EPA has submitted this 

rule to OMB for review. The drafts of 

the rules submitted to OMB, the 

documents accompanying such drafts, 

written comments thereon, written 

responses by EPA, and identification of 

the changes made in response to OMB 

suggestions or recommendations are 

available for public inspection at EPA’s 

Air and Radiation Docket and 

Information Center (Docket Number 

OAR–2002–0076). The EPA has 

prepared the document entitled 

‘‘Regulatory Impact Analysis of the 

Proposed Guidelines for Best Available 

Retrofit Technology Determinations 

Under the Regional Haze Regulations’

(RIA) to address the requirements of this 

executive order. 

The RIA presents estimates of the 

health and welfare benefits and the 

estimated costs of the BART reproposal 

in 2015 and the estimated benefits and 

costs of the recently signed IAQR 

proposal (69 FR 4566, January 30, 2004). 

Reviewing these results, it is important 

to recognize that the BART and IAQR 

proposals are likely to be overlapping 

actions that address many of the same 

power plants. However, IAQR as 

proposed will affect a 29 State and the 

District of Columbia region in the 

eastern U.S., and the BART rule is 

applicable nationwide. In the proposed 

IAQR, we requested comment on 

whether compliance with the IAQR by 

affected EGUs in affected States would 

satisfy, for those sources, the BART 

requirements of the CAA, provided that 

a State imposes the full amount of SO2

and NOX emissions reductions on EGUs 

that the IAQR deemed highly cost 

effective. We are in the process of 

evaluating those comments. Based on 

our current evaluation, we believe the 

IAQR, as proposed, is clearly better than 

BART for those affected EGUs in the 

affected States which we propose to 

cover under the IAQR. We thus expect 

that the final IAQR would satisfy the 

BART requirements for affected EGUs 

that are covered pursuant to the final 

IAQR. EPA projects that both of these 

rules are likely to achieve significant 

health and welfare benefits. The BART 

analysis presented here is limited to the 

electric utility sector because of 

limitations in the data currently 

available on non-EGU sources. It is also 

important to note that States will make 

the ultimate decisions as to how the 

BART requirements are implemented. 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25205

Thus, the analysis results reported 

reflect the EPA’s best estimate of the 

benefits and costs of this State 

determined process. 

Significant health and welfare 

benefits are likely to occur as a result of 

this rule. Based upon EPA estimates, 

thousands of premature deaths and 

other serious health effects would be 

prevented each year. The EPA estimates 

monetized annual benefits of 

approximately $44 billion (assuming a 7 

percent discount rate) or $47 billion 

(assuming a 3 percent discount rate) in 

2015 (1999$). Table IV–1 presents the 

primary estimates of reduced incidence 

of PM health effects for 2015 for the 

source-specific BART proposal and the 

IAQR proposed rule. Specifically, the 

table lists the PM-related benefits 

associated with the reduction of 

ambient PM. 

In interpreting the results, it is 

important to keep in mind the limited 

set of effects we are able to monetize. 

Thus, the benefits reported for this rule 

are understated due to the omissions 

listed in Table II–4. 

Nonetheless, the benefits quantified 

and monetized are substantial both in 

incidence and dollar value. In 2015, we 

estimate that reduction in exposure to 

PM2.5 from the BART rule will result in 

approximately 7,400 fewer premature 

deaths annually associated with PM2.5, 

as well as 3,900 fewer cases of chronic 

bronchitis, 9,800 fewer nonfatal heart 

attacks (acute myocardial infarctions), 

6,000 fewer hospitalizations (for 

respiratory and cardiovascular disease 

combined), and significant reductions in 

days of restricted activity due to 

respiratory illness (with an estimate of 

4.4 million fewer cases). We also 

estimate substantial health 

improvements for children from 

reductions in upper and lower 

respiratory illnesses, acute bronchitis, 

and asthma attacks. 

Table IV–2 presents the estimated 

monetary value of reductions in the 

incidence of health and welfare effects. 

PM-related health benefits are estimated 

to be approximately $43 billion 

(assuming a 7 percent discount rate) or 

$46 billion (assuming a 3 percent 

discount rate) in 2015. Estimated annual 

visibility benefits in the U.S. brought 

about by the BART rule due to visibility 

improvements in federal Class I areas in 

the Southeast, Southwest, and 

California are estimated to be 

approximately $940 million in 2015. All 

monetized estimated values are stated in 

1999$. Table IV–2 shows the total 

annual monetized benefits for the year 

2015. This table also indicates with a 

‘‘B’’ those additional health and 

environmental effects that we were 

unable to quantify or monetize. These 

effects are additive to the estimate of 

total benefits, and the EPA believes 

there is considerable value to the public 

of the benefits that could not be 

monetized.

TABLE IV–1.—ESTIMATED REDUCTIONS IN INCIDENCE OF HEALTH EFFECTS OF THE BART RULE

[In 2015] 

Endpoint Constituent BART IAQR proposal 

Premature Mortality—adult ............................................................................................................ PM2.5 7,400 13,000 

Mortality-infant ................................................................................................................................ PM2.5 17 29 

Chronic bronchitis .......................................................................................................................... PM2.5 3,900 6,900 

Acute myocardial infarction—total ................................................................................................. PM2.5 9,800 18,000 

Hospital admissions—respiratory ................................................................................................... PM2.5 3,200 *8,100 

Hospital admissions—cardiovascular ............................................................................................ PM2.5 2,800 5,000 

Emergency room visits, respiratory ............................................................................................... PM2.5 5,300 9,400* 

Acute bronchitis .............................................................................................................................. PM2.5 9,000 16,000 

Lower respiratory symptoms .......................................................................................................... PM2.5 110,000 190,000 

Upper respiratory symptoms .......................................................................................................... PM2.5 350,000 620,000 

Asthma exacerbation ..................................................................................................................... PM2.5 150,000 240,000 

Acute respiratory symptoms (MRADs) .......................................................................................... PM2.5 4,400,000 8,500,000*

Work loss days ............................................................................................................................... PM2.5 740,000 1,300,000 

School loss days ............................................................................................................................ O3 ** 390,000 

MRADs = minor restricted activity days. 

*Includes estimates for ozone health effects. Although ozone health benefits occur with the BART proposal, ozone health effects are not estimated. 

** School loss days are not estimated for BART. 

A listing of the benefit categories that 

could not be quantified or monetized in 

our estimate is provided in Table IV–3. 

Major benefits not quantified for this 

proposed rule include ozone health 

benefits, the value of increases in yields 

of agricultural crops and commercial 

forests, the value of improvements in 

visibility in places where people live 

and work and recreational areas outside 

of federal Class I areas, and the value of 

reductions in nitrogen and acid 

deposition and the resulting changes in 

ecosystem functions. 

In summary, EPA’s primary estimate 

of the annual benefits of the rule is 

approximately $44 + B billion 

(assuming a 7% discount rate) or $47 + 

B billion (assuming a 3 percent discount 

rate) in 2015. These estimates account 

for growth in the willingness to pay for 

reductions in environmental health 

risks due to growth in real gross 

domestic product (GDP) per capita 

between the present and 2015.

TABLE IV–2.—RESULTS OF HUMAN HEALTH AND WELFARE BENEFITS VALUATION FOR THE PROPOSED BART RULE

[Millions of 1999 dollars] a b

Endpoint BART IAQR Proposalf

Premature mortality c

Long-term exposure, (adults, >30yrs) 

3% discount rate ........................................................................................................................... $43,000 $77,000 

7% discount rate ........................................................................................................................... 40,000 72,000 

25206 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

TABLE IV–2.—RESULTS OF HUMAN HEALTH AND WELFARE BENEFITS VALUATION FOR THE PROPOSED BART RULE—

Continued

[Millions of 1999 dollars] a b

Endpoint BART IAQR Proposalf

Long-term exposure (child, < 1 yr) ....................................................................................................... 100 180 

Chronic bronchitis (adults, 26 and over) ..................................................................................................... 1,500 2,700 

Non-fatal myocardial infarctions 

3% discount rate ................................................................................................................................... 810 1,500 

7% discount rate ................................................................................................................................... 790 1,400 

Hospital Admissions from Respiratory Causes ........................................................................................... 55 e130

Hospital Admissions from Cardiovascular Causes ..................................................................................... 59 110 

Emergency Room Visits for Asthma ........................................................................................................... 1.5 e 2.6

Acute bronchitis (children, 8–12) ................................................................................................................. 3.3 5.7 

Lower respiratory symptoms (children, 7–14) ............................................................................................. 1.7 3.0 

Upper respiratory symptoms (asthmatic children, 9–11) ............................................................................ 16 17 

Asthma exacerbations ................................................................................................................................. 5.8 10 

Work loss days (adults, 18–65) ................................................................................................................... 97 170 

Minor restricted activity days (adults, age 18–65) ...................................................................................... 230 e 440

School absence days (children, age 6–11) ................................................................................................. (e) 28 

Worker productivity (outdoor workers, age 18–65) ..................................................................................... (e) 17 

Recreational visibility (SE, SW, and CA Class I areas) .............................................................................. 940 1,400 

Monetized Total d.

Base estimate 

3% discount rate ........................................................................................................................... 47,000 + B e 84,000 

7% discount rate ........................................................................................................................... 44,000 + B e 79,000

a Monetary benefits are rounded to two significant digits. 

b Monetary benefits are adjusted to account for growth in real GDP per capita between 1990 and the analysis year (2015). 

cValuation assumes the 5 year distributed lag structure described earlier. Results reflect the use of two different discount rates; a 3 percent 

rate that is recommended by EPA’s Guidelines for Preparing Economic Analyses (U.S. EPA, 2000b) and OMB’s Circular A–4 (OMB, 2003) and 7 

percent which is also recommended by OMB’s Circular A–4 (OMB, 2003). dB represents the monetary value of the nonmonetized health and welfare benefits. A detailed listing of unquantified PM, ozone, and mercury 

related health effects is provided in Table IV–4. e Results presented for the IAQR proposal include benefits associated with modeled ozone reductions. Ozone-related benefits are not generated for BART. fThe estimated benefits for the IAQR proposal are based upon a control scenario for EGU sources only in the 29 State + DC proposed IAQR 

region. 

Costs of the Proposed BART Rule 

EPA modeled the costs and economic 

impacts to the EGU sector anticipated to 

result from the source-specific BART 

requirements. Modeling assumptions for 

the SO2 affected units included the 

choice of meeting a 0.1 lbs/mmBtu 

emission rate or achieving 90 percent 

reductions from base case emissions. 

Affected units were also required to 

meet a 0.2 lbs/mmBtu emission rate 

limit for NOX. In the model, EPA 

required controls only on BART-eligible 

units, a subset representing 179 GW out 

of about 305 GW total coal-fired U.S. 

generation. BART-eligible units were 

defined as units greater than 250 MW 

that were online after August 7, 1962 

and under construction prior to August 

7, 1977. No additional necessary 

controls were assumed for any units 

within the five WRAP 309 States of UT, 

AZ, WY, OR or NM that have existing 

agreements to achieve reduction goals. 

Also, because of modeling limitations, 

no additional reductions were assumed 

from units with existing scrubbers, even 

if they were performing at less than 90 

percent removal. This assumption, the 

assumption of 90 percent removal rather 

than the proposed 95 percent removal 

rate, and an analysis that focuses on 

EGU sources only, are limitations of the 

analysis that would tend to understate 

the estimated costs, emission 

reductions, and benefits of the rule. 

Based upon the foregoing modeling 

assumptions, the EPA estimates the 

annual costs of the BART rule to be $3.9 

billion in 2015 (1999 dollars). The costs 

are estimated using a discount rate that 

approximates the cost of capital for 

firms in the EGU industry and ranges 

from 5.34 to 6.74 percent. 

Benefit-Cost Comparison 

The estimated annual social benefits 

of the BART rule are compared to the 

annual estimated cost to implement the 

proposed rule in Table IV–3.

TABLE IV–3.—SUMMARY OF ANNUAL

BENEFITS, COSTS, AND NET BENEFITS OF THE BART RULE IN 2015 

[Billions of 1999 dollars] 

Description BART 

IAQR 

proposal e

Social costs a ................. $3.9 $3.7 

Social benefits b c .......... 47+B 84+B 

Ozone-related benefits f f 0.1

TABLE IV–3.—SUMMARY OF ANNUAL

BENEFITS, COSTS, AND NET BENEFITS OF THE BART RULE IN 2015—

Continued

[Billions of 1999 dollars] 

Description BART 

IAQR 

proposal e

PM-related health benefits .............................. 46 82.3 

Visibility benefits ........... 0.9 1.4 

Net benefits (benefitscosts) abcd ................. 43+B 80+B 

Net benefits (benefitscosts) acdg ................. 40+B 75+B 

a Note that costs are the annual total costs 

of reducing pollutants including NOX and SO2. 

Costs of the rules are estimated using the Integrated Planning Model (IPM) assuming discount rates that approximate the cost of capital for firms operating EGUs ranging from 

5.34 to 6.74 percent. bAs the table indicates, total benefits are 

driven primarily by PM-related health benefits. 

Benefits in this table are associated with NOX

and SO2 reductions. Benefits presented assume a 3% discount rate for monetization. c Not all possible benefits or disbenefits are 

quantified and monetized in this analysis. B is 

the sum of all unquantified benefits and 

disbenefits. Potential benefit categories that 

have not been quantified and monetized are 

listed in Table IV–4. 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25207

d Net benefits are rounded to the nearest billion. Columnar totals may not sum due to 

rounding. eThe estimated IAQR proposal benefits and 

costs relate to a control strategy for EGU 

sources only in the 29 + DC State IAQR proposed region. fOzone health benefits will result from the 

BART rule and IAQR proposal, but monetary 

benefits are estimated for the IAQR proposal 

only. gBenefits presented assume a 7% discount 

rate for monetization. 

EPA estimates the costs of 

implementing the rule at $3.9 billion in 

2015. Thus, the annual quantified net 

benefits (social benefits minus social 

costs) of the program in 2015 are 

approximately $40 + B billion 

(assuming a 7 percent discount rate for 

benefits) or $43 + B billion (assuming a 

3 percent discount rate for benefits). 

Therefore, implementation of the 

proposed rule is expected to provide 

society with a net gain in social welfare 

based on economic efficiency criteria.

Every benefit-cost analysis examining 

the potential effects of a change in 

environmental protection requirements 

is limited to some extent by data gaps, 

limitations in model capabilities (such 

as geographic coverage), and 

uncertainties in the underlying 

scientific and economic studies used 

toconfigure the benefit and cost models.

TABLE IV–4.—ADDITIONAL NONMONETIZED BENEFITS OF THE BART RULE

Pollutant Unquantified effects 

Ozone Health .................................. Premature mortality a. 

Increased airway responsiveness to stimuli. 

Inflammation in the lung. 

Chronic respiratory damage. 

Premature aging of the lungs. 

Acute inflammation and respiratory cell damage. 

Increased susceptibility to respiratory infection. 

Non-asthma respiratory emergency room visits. 

Ozone Welfare ................................ Decreased yields for commercial forests. 

Decreased yields for fruits and vegetables. 

Decreased yields for commercial and non-commercial crops. 

Damage to urban ornamental plants. 

Impacts on recreational demand from damaged forest aesthetics. 

Damage to ecosystem functions. 

PM Health ....................................... Low birth weight. 

Changes in pulmonary function. 

Chronic respiratory diseases other than chronic bronchitis. 

Morphological changes. 

Altered host defense mechanisms. 

Non-asthma respiratory emergency room visits. 

PM Welfare ..................................... Visibility in many Class I areas. 

Residential and recreational visibility in non-Class I areas. 

Soiling and materials damage. 

Damage to ecosystem functions. 

Nitrogen and Sulfate Deposition 

Welfare.

Impacts of acidic sulfate and nitrate deposition on commercial forests. 

Impacts of acidic deposition to commercial freshwater fishing. 

Impacts of acidic deposition to recreation in terrestrial ecosystems. 

Reduced existence values for currently healthy ecosystems. 

Impacts of nitrogen deposition on commercial fishing, agriculture, and forests. 

Impacts of nitrogen deposition on recreation in estuarine ecosystems. 

Damage to ecosystem functions. 

Mercury Health ................................ Neurological disorders. 

Learning disabilities. 

Developmental delays. 

Potential cardiovascular effects *. 

Altered blood pressure regulation *. 

Increased heart rate variability *. 

Myocardial infarction *. 

Potential reproductive effects *. 

Mercury Deposition Welfare ........... Impact on birds and mammals (e.g., reproductive effects). 

Impacts to commercial, subsistence, and recreational fishing. 

Reduced existence values for currently healthy ecosystems. 

aPremature mortality associated with ozone is not separately included in this analysis. 

*These are potential effects as the literature is either contradictory or incomplete. 

Deficiencies in the scientific literature 

often result in the inability to estimate 

quantitative changes in health and 

environmental effects, such as potential 

increases in fish populations due to 

reductions in nitrogen loadings in 

sensitive estuaries. Deficiencies in the 

economics literature often result in the 

inability to assign economic values even 

to those health and environmental 

outcomes that can be quantified. 

Although these general uncertainties in 

the underlying scientific and economics 

literatures (that can cause the valuations 

to be higher or lower) are discussed in 

detail in the economic analyses and its 

supporting documents and references, 

the key uncertainties that have a bearing 

on the results of the benefit-cost 

analysis of this proposed rule include 

the following: 

• The exclusion of potentially 

significant benefit categories (such as 

health and ecological benefits of ozone), 

• Errors in measurement and 

projection for variables such as 

population growth and baseline 

incidence rates,

25208 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

50Mrozek, J.R. and L.O. Taylor, What determines 

the value of a life? A Meta Analysis, Journal of 

Policy Analysis and Management 21 (2), pp. 253–

270.

• Uncertainties in the estimation of 

future-year emissions inventories and 

air quality, 

• Variability in the estimated 

relationships of health and welfare 

effects to changes in pollutant 

concentrations, 

• Uncertainties in exposure 

estimation, 

• Uncertainties in the size of the 

effect estimates linking air pollution and 

health endpoints, 

• Uncertainties about relative toxicity 

of different components within the 

complex mixture, 

• Uncertainties in quantifying 

visibility benefits, and 

• Uncertainties associated with the 

effect of potential future actions to limit 

emissions.

Despite these uncertainties, we believe 

the benefit-cost analysis provides a 

reasonable indication of the expected 

economic benefits and costs of the 

proposed rulemaking in future years 

under a set of reasonable assumptions. 

In addition, in valuing reductions in 

premature fatalities associated with PM, 

we used a value of $5.5 million per 

statistical life. This represents a central 

value consistent with a range of values 

from $1 to $10 million suggested by 

recent meta-analyses of the wage-risk 

value of statistical life (VSL) literature.50

The benefits estimates generated for 

the proposed BART rule are subject to 

a number of assumptions and 

uncertainties, that are discussed 

throughout the RIA document. As Table 

IV–2 indicates, total benefits are driven 

primarily by the reduction in premature 

fatalities each year, that account for a 

significant portion of total benefits. For 

example, key assumptions underlying 

the primary estimate for the premature 

mortality category include the 

following: 

(1) Inhalation of fine particles is 

causally associated with premature 

death at concentrations near those 

experienced by most Americans on a 

daily basis. Although biological 

mechanisms for this effect have not yet 

been definitively established, the weight 

of the available epidemiological 

evidence supports an assumption of 

causality. 

(2) All fine particles, regardless of 

their chemical composition, are equally 

potent in causing premature mortality. 

This is an important assumption, 

because PM produced via transported 

precursors emitted from EGUs may 

differ significantly from direct PM 

released from automotive engines and 

other industrial sources, but no clear 

scientific grounds exist for supporting 

differential effects estimates by particle 

type. 

(3) The C–R function for fine particles 

is approximately linear within the range 

of ambient concentrations under 

consideration. Thus, the estimates 

include health benefits from reducing 

fine particles in areas with varied 

concentrations of PM, including both 

regions that are in attainment with fine 

particle standard and those that do not 

meet the standard. 

Although recognizing the difficulties, 

assumptions, and inherent uncertainties 

in the overall enterprise, these analyses 

are based on peer-reviewed scientific 

literature and up-to-date assessment 

tools, and we believe the results are 

highly useful in assessing this proposal. 

We were unable to quantify or 

monetize a number of health and 

environmental effects. A full 

appreciation of the overall economic 

consequences of today’s action requires 

consideration of all benefits and costs 

expected to result from the proposed 

rule, not just those benefits and costs 

that could be expressed here in dollar 

terms. A listing of the benefit categories 

that could not be quantified or 

monetized in our estimate is provided 

in Table IV–4. These effects are denoted 

by ‘‘B’’ in Table IV–3 above and are 

additive to the estimates of benefits. 

The Regulatory Impact Analysis (RIA) 

supporting this proposal is subject to 

OMB’s new Circular A–4, Guidelines for 

the Conduct of Regulatory Analysis. 

These guidelines set forth a number of 

analytical requirements, most of which 

overlap with EPA’s own Economic 

Guidelines. Because of the consent 

decree deadline for proposing this rule, 

the Agency has not yet completed all 

the analyses called for in EPA’s and 

OMB’s guidelines. Thus, the Agency 

will be conducting additional analytical 

work and including the results of this 

work in the public docket. We will 

publish a notice of data availability 

(NODA) to advise the public when these 

materials are available. In particular, the 

Agency plans to conduct and make 

available the following analyses: 

(1) Quantitative Analysis of 

Uncertainty. This rule will have 

economic impacts (benefits plus costs) 

that total more than $1 billion per year. 

Circular A–4 calls for a formal 

quantitative analysis of the relevant 

uncertainties about benefits and costs 

for such rules. 

(2) Cost-effectiveness analysis. In 

addition to the benefit-cost analysis, 

EPA will conduct a cost-effectiveness 

analysis because the primary benefits of 

this rule are improved public health. 

(3) Analysis of all regulated entities. 

Because the Agency already has 

extensive data about electric generating 

units, the current RIA includes a 

detailed analysis of the power sector. 

The Agency intends to gather additional 

data about BART-eligible sources in 

other sectors and conduct a more 

complete analysis of the costs, benefits, 

and cost-effectiveness of controls on 

non-EGU sources covered by the rule. 

(4) Options and incremental analysis. 

The proposed rule identifies the 

proposed IAQR as an additional 

regulation that will likely affect the 

number of EGUs that will be covered by 

this rule. We currently believe that the 

IAQR, as proposed, is ‘‘better than 

BART’’ for those affected EGUs in the 

affected States that we propose to cover 

under the IAQR. We thus expect that the 

final IAQR would satisfy this rule for 

affected EGUs that are covered pursuant 

to the final IAQR. EPA intends to assess 

the incremental costs and benefits of 

this rule, assuming that the IAQR, as 

proposed, is in place. 

B. Paperwork Reduction Act 

Today’s proposal clarifies but does 

not modify the information collection 

requirements for BART. Therefore, this 

action does not impose any new 

information collection burden. 

However, the OMB has previously 

approved the information collection 

requirements contained in the existing 

regulations [40 CFR Part 51] under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. and has 

assigned OMB control number 2060–

0421, EPA ICR number 1813.04. A copy 

of the OMB approved Information 

Collection Request (ICR) may be 

obtained from Susan Auby, Collection 

Strategies Division; U.S. Environmental 

Protection Agency (2822T); 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460 or by calling (202) 566–1672. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25209

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s proposed rule on small 

entities, small entity is defined as: (1) A 

small business as defined by the Small 

Business Administrations’ regulations at 

13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

In the July 1, 1999 regional haze rule 

(64 FR 35760) and in the July 20, 2001 

BART guidelines proposal (66 FR 

38110) the EPA determined that it was 

not necessary to prepare a regulatory 

flexibility analysis in connection with 

either action. The EPA also determined 

that the 1999 regional haze rule and the 

2001 BART guidelines proposal would 

not have a significant economic impact 

on a substantial number of small entities 

because neither would establish 

requirements applicable to small 

entities. After considering the economic 

impacts of today’s proposed rule on 

small entities, we certify that this 

action, proposing new regulations to 

address the BART requirements 

remanded by the D.C. Circuit and 

reproposing the 2001 BART guidelines 

proposal, will not have a significant 

economic impact on a substantial 

number of small entities. 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (Public Law 104–121) 

(SBREFA), provides that whenever an 

agency is required to publish a general 

notice of proposed rulemaking, it must 

prepare and make available an initial 

regulatory flexibility analysis, unless it 

certifies that the rule, if promulgated, 

will not have ‘‘a significant economic 

impact on a substantial number of small 

entities.’’ 5 U.S.C. 605(b). Courts have 

interpreted the RFA to require a 

regulatory flexibility analysis only when 

small entities will be subject to the 

requirements of the rule. See Motor and 

Equip. Mfrs. Ass’n v. Nichols, 142 F. 3d 

449 (D.C. Cir., 1998); United 

Distribution Cos. v. FERC, 88 F. 3d 

1105, 1170 (D.C. Cir., 1996); Mid-Tex 

Elec. Co-op, Inc. v. FERC, 773 F . 2d 

327, 342 (D.C. Cir., 1985) (agency’s 

certification need only consider the 

rule’s impact on entities subject to the 

rule). 

Similar to the discussion in the 

proposed and final regional haze rules, 

today’s reproposal of the BART rules 

and guidelines would not establish 

requirements applicable to small 

entities. The proposed rule would apply 

to States, not to small entities. The 

BART requirements in the regional haze 

rule require BART determinations for a 

select list of major stationary sources 

defined by section 169A(g)(7) of the 

CAA. However, as noted in the 

proposed and final regional haze rules, 

the State’s determination of BART for 

regional haze involves some State 

discretion in considering a number of 

factors set forth in section 169A(g)(2), 

including the costs of compliance. 

Further, the final regional haze rule 

allows States to adopt alternative 

measures in lieu of requiring the 

installation and operation of BART at 

these major stationary sources. As a 

result, the potential consequences of the 

BART provisions of the regional haze 

rule (as clarified in today’s reproposal of 

the BART guidelines) at specific sources 

are speculative. Any requirements for 

BART will be established by State 

rulemakings. The States would 

accordingly exercise substantial 

intervening discretion in implementing 

the BART requirements of the regional 

haze rule and today’s proposed 

guidelines. In addition, we note that 

most sources potentially affected by the 

BART requirements in section 169A of 

the CAA are large industrial plants. Of 

these, we would expect few, if any, to 

be considered small entities. We request 

comment on issues regarding small 

entities that States might encounter 

when implementing the BART 

provisions.

Although not required, a small 

business impact analysis was conducted 

for entities owning potentially affected 

BART-eligible EGUs. We found that 66 

entities (companies or governments) 

currently own the EGU units subject to 

BART. Of these 66 entities, only two are 

considered small. One of the entities is 

a small government and the other an 

investor-owned company. The BART 

rule is not anticipated to have an impact 

on the government entity. The small 

business may experience a cost-to-sales 

impact of approximately 4 percent. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Public Law 104–4) 

establishes requirements for Federal 

agencies to assess the effects of their 

regulatory actions on State, local, and 

Tribal governments and the private 

sector. Under section 202 of UMRA, 2 

U.S.C. 1532, EPA generally must 

prepare a written statement, including a 

cost-benefit analysis, for any proposed 

or final rule that ‘‘includes any Federal 

mandate that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

* * * in any one year.’’ A ‘‘Federal 

mandate’’ is defined under section 

421(6), 2 U.S.C. 658(6), to include a 

‘‘Federal intergovernmental mandate.’’

A ‘‘Federal intergovernmental 

mandate,’’ in turn, is defined to include 

a regulation that ‘‘would impose an 

enforceable duty upon State, local, or 

tribal governments,’’ section 

421(5)(A)(I), 2 U.S.C. 658(5)(A)(I). A 

‘‘Federal private sector mandate’’

includes a regulation that ‘‘would 

impose an enforceable duty upon the 

private sector,’’ with certain exceptions, 

section 421(7)(A), 2 U.S.C. 658(7)(A). 

Before promulgating an EPA rule for 

which a written statement is needed 

under section 202 of UMRA, section 

205, 2 U.S.C. 1535, of UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost effective, or least burdensome 

alternative that achieves the objectives 

of the rule. 

The RIA prepared by EPA and placed 

in the docket for this rulemaking is 

consistent with the requirements of 

section 202 of the UMRA. Furthermore, 

EPA is not directly establishing any 

regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments. Thus, EPA is not obligated 

to develop under section 203 of the 

UMRA a small government agency plan. 

Further, EPA carried out consultations 

with the governmental entities affected 

by this rule in a manner consistent with 

the intergovernmental consultation 

provisions of section 204 of the UMRA. 

The EPA also believes that today’s 

proposal meets the UMRA requirement 

in section 205 to select the least costly 

and burdensome alternative in light of 

25210 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

the statutory mandate for BART. As 

explained above, we are proposing the 

BART rule and guideline following the 

D.C. Circuit’s remand of the BART 

provisions in the 1999 regional haze 

rule. The 1999 regional haze rule 

provides substantial flexibility to the 

States, allowing them to adopt 

alternative measures such as a trading 

program in lieu of requiring the 

installation and operation of BART. 

Today’s reproposal does not restrict the 

ability of the States to adopt such 

alternatives measures. The regional haze 

rule accordingly already provides an 

alternative to BART that gives States the 

ability to chose the least costly and least 

burdensome alternative. 

The EPA is not reaching a final 

conclusion as to the applicability of 

UMRA to today’s rulemaking action. 

The reasons for this are discussed in the 

1999 regional haze rule (64 FR 35762) 

and in the 2001 BART guidelines 

proposal (66 FR 38111–38112). 

Notwithstanding this, the discussion in 

chapter 8 of the RIA constitutes the 

UMRA statement that would be required 

by UMRA if its statutory provisions 

applied. Consequently, we continue to 

believe that it is not necessary to reach 

a conclusion as to the applicability of 

the UMRA requirements.

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

Federalism (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications’ are defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

the States, on the relationship between 

the national government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government.’’ Under Section 6 

of Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. The EPA also may not issue 

a regulation that has federalism 

implications and that preempts State 

law unless EPA consults with State and 

local officials early in the process of 

developing the proposed regulation. 

We have concluded that today’s 

action, reproposing the BART 

guidelines, will not have federalism 

implications, as specified in section 6 of 

the Executive Order 13132 (64 FR 

43255, August 10, 1999), because it will 

not have substantial direct effects on the 

States, nor substantially alter the 

relationship or the distribution of power 

and responsibilities between the States 

and the Federal government. 

Nonetheless, we consulted with a wide 

scope of State and local officials, 

including the National Governors 

Association, National League of Cities, 

National Conference of State 

Legislatures, U. S. Conference of 

Mayors, National Association of 

Counties, Council of State Governments, 

International City/County Management 

Association, and National Association 

of Towns and Townships, during the 

course of developing this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

Tribal officials in the development of 

regulatory policies that have Tribal 

implications.’’

This proposed rule does not have 

Tribal implications as defined by 

Executive Order 13175. It does not have 

a substantial direct effect on one or 

more Indian Tribes. Furthermore, this 

proposed rule does not affect the 

relationship or distribution of power 

and responsibilities between the Federal 

government and Indian Tribes. The 

CAA and the TAR establish the 

relationship of the Federal government 

and Tribes in developing plans to attain 

the NAAQS, and this proposed rule 

does nothing to modify that 

relationship. Because this proposed rule 

does not have Tribal implications, 

Executive Order 13175 does not apply. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that 

(1) is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

Section 5–501 of the Order directs the 

Agency to evaluate the environmental 

health or safety effects of the planned 

rule on children, and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives considered by the 

Agency. 

The BART proposed rule and 

guideline are not subject to the 

Executive Order because it does not 

involve decisions on environmental 

health or safety risks that may 

disproportionately affect children. The 

EPA believes that the emissions 

reductions from the strategies proposed 

in this rulemaking will further improve 

air quality and will further improve 

children’s health.

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

We have conducted a Regulatory 

Impact Analysis for this reproposed 

rule, that includes an analysis of energy 

impacts and is contained in the docket 

(Docket No. OAR–2002–0076). 

According to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’, this proposed rule 

is significant because it has a greater 

than a 1 percent impact on the cost of 

energy production. We are reproposing 

today’s rule following the D.C. Circuit’s 

remand of the BART provisions in the 

1999 regional haze rule. The 1999 

regional haze rule provides substantial 

flexibility to the States, allowing them 

to adopt alternative measures such as a 

trading program in lieu of requiring the 

installation and operation of BART. 

This rulemaking does not restrict the 

ability of the States to adopt alternative 

measures. The regional haze rule 

accordingly already provides an 

alternative to BART that reduces the 

overall cost of the regulation and its 

impact on the energy supply. The BART 

proposal itself offers flexibility by 

offering the choice of meeting SO2

requirements between an emission rate 

and a removal rate. 

For a State that chooses to require 

case-by-case BART, today’s rule would 

establish default levels of controls for 

SO2 and NOX for EGUs that the State 

finds are subject to BART. Based on its 

consideration of various factors set forth 

in the regulations, however, a State may 

conclude that a different level of control 

is appropriate. The States will 

accordingly exercise substantial 

intervening discretion in implementing 

the final rule. Additionally, we have 

assessed that the proposed compliance 

dates will provide adequate time for 

EGUs to install the required emission 

controls. 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25211

51U.S. Environmental Protection Agency, 1998. 

Guidance for Incorporating Environmental Justice 

Concerns in EPA’s NEPA Compliance Analyses. 

Office of Federal Activities, Washington, DC, April, 

1998.

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (NTTAA), Public Law No. 104–

113, § 12(d)(15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by VCS bodies. The NTTAA 

directs EPA to provide Congress, 

through OMB, explanations when the 

EPA decides not to use VCS. 

This action does not involve technical 

standards; thus, EPA did not consider 

the use of any VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898, ‘‘Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations,’’ requires 

federal agencies to consider the impact 

of programs, policies, and activities on 

minority populations and low-income 

populations. According to EPA 

guidance 51, agencies are to assess 

whether minority or low-income 

populations face risks or a rate of 

exposure to hazards that are significant 

and that ‘‘appreciably exceed or is likely 

to appreciably exceed the risk or rate to 

the general population or to the 

appropriate comparison group.’’ (EPA, 

1998)

In accordance with E.O. 12898, the 

Agency has considered whether this 

proposed rule may have 

disproportionate negative impacts on 

minority or low income populations. 

Because the Agency expects this 

proposed rule to lead to reductions in 

pollutant loadings and exposures 

generally, negative impacts to these subpopulations that appreciably exceed 

similar impacts to the general 

population are not expected.

List of Subjects in 40 CFR Part 51 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Carbon monoxide, 

Nitrogen dioxide, Particulate matter, 

Sulfur oxides, Volatile organic 

compounds.

Dated: April 15, 2004. 

Michael O. Leavitt, 

Administrator.

For the reasons set forth in the 

preamble, part 51 of chapter I of title 40 

of the Code of Federal Regulations is 

proposed to be amended as follows:

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS 

1. The authority citation for part 51 

continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7410–

7671q.

2. Section 51.302 is amended by 

revising paragraph (c)(4)(iii) to read as 

follows:

§ 51.302 Implementation control strategies 

for reasonably attributable visibility 

impairment.

* * * * *

(c) * * * 

(4) * * * 

(iii) BART must be determined for 

fossil-fuel fired generating plants having 

a total generating capacity in excess of 

750 megawatts pursuant to ‘‘Guidelines 

for Determining Best Available Retrofit 

Technology for Coal-fired Power Plants 

and Other Existing Stationary Facilities’’

(1980), which is incorporated by 

reference, exclusive of appendix E, 

which was published in the Federal 

Register on February 6, 1980 (45 FR 

8210), except that options more 

stringent than NSPS must be 

considered. Establishing a BART 

emission limitation equivalent to the 

NSPS level of control is not a sufficient 

basis to avoid the detailed analysis of 

control options required by the 

guidelines. It is EPA publication No. 

450/3–80–009b and is for sale from the 

U.S. Department of Commerce, National 

Technical Information Service, 5285 

Port Royal Road, Springfield, Virginia 

22161.

* * * * *

3. Section 51.308 is amended by 

revising paragraphs (b), (c), and (e)(1)(ii) 

to read as follows:

§ 51.308 Regional haze program 

requirements.

* * * * *

(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 3 years after the date on 

which the Administrator promulgates 

for the State the designation for the 

PM2.5 National Ambient Air Quality 

Standard at 40 CFR Part 81. 

(c) In no event may the State’s 

regional haze implementation plan be 

submitted later than January 31, 2008.

* * * * *

(e) * * *

(1) * * * 

(ii) A determination of BART 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 any mandatory Class I 

Federal area. All such sources are 

subject to BART. 

(A) The determination of BART must 

be based on an analysis of the best 

system of continuous emission control 

technology available and associated 

emission reductions achievable for each 

BART-eligible source that is subject to 

BART within the State. In this analysis, 

the State must take into consideration 

the technology available, the costs of 

compliance, the energy and nonair 

quality environmental impacts of 

compliance, any pollution control 

equipment in use at the source, the 

remaining useful life of the source, and 

the degree of improvement in visibility 

which may reasonably be anticipated to 

result from the use of such technology. 

(B) Appendix Y of this part provides 

guidelines for conducting the analyses 

under paragraphs (e)(1)(ii) and 

(e)(1)(ii)(A) of this section. All BART 

determinations that are required in 

paragraph (e)(1) of this section must be 

made pursuant to the guidelines in 

appendix Y of this part.

* * * * *

4. Section 51.309 is amended by 

revising paragraphs (d)(4)(v), (g)(2), and 

(g)(3) to read as follows:

§ 51.309 Requirements Related to the 

Grand Canyon Visibility Transport 

Commission

* * * * *

(d) * * * 

(4) * * * 

(v) Provisions for stationary source 

NOX and PM. The plan submission must 

include a report which assesses 

emissions control strategies for 

stationary source NOX and PM, and the 

degree of visibility improvement that 

would result from such strategies. In the 

report, the State must evaluate and 

discuss the need to establish emission 

milestones for NOX and PM to avoid any 

net increase in these pollutants from 

stationary sources within the transport 

region, and to support potential future 

development and implementation of a 

multipollutant and possibly multisource 

market-based program. The plan 

25212 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

submission must provide for an 

implementation plan revision, 

containing any necessary long-term 

strategies and BART requirements for 

stationary source PM and NOX

(including enforceable limitations, 

compliance schedules, and other 

measures) by no later than January 31, 

2008.

* * * * *

(g) * * * 

(2) In a plan submitted no later than 

January 31, 2008, provide a 

demonstration of expected visibility 

conditions for the most impaired and 

least impaired days at the additional 

mandatory Class I Federal area(s) based 

on emissions projections from the longterm strategies in the implementation 

plan. This demonstration may be based 

on assessments conducted by the States 

and/or a regional planning body. 

(3) In a plan submitted no later than 

January 31, 2008, provide revisions to 

the plan submitted under (c) of this 

section, including provisions to 

establish reasonable progress goals and 

implement any additional measures 

necessary to demonstrate reasonable 

progress for the additional mandatory 

Federal Class I areas. These revisions 

must comply with the provisions of 

§ 51.308(d)(1)–(4).

* * * * *

5. Appendix Y to Part 51 to read is 

added to read as follows: 

Appendix Y to Part 51—Guidelines for 

BART Determinations Under the 

Regional Haze Rule

Table of Contents 

I. Introduction and Overview 

A. What is the purpose of the guidelines? 

B. What does the CAA require generally for 

improving visibility? 

C. What is the BART requirement in the 

CAA? 

D. What types of visibility problems does 

EPA address in its regulations? 

E. What are the BART requirements in 

EPA’s regional haze regulations? 

F. Do States have an alternative to 

requiring BART controls at specific 

facilities? 

G. What is included in the guidelines? 

H. Who is the target audience for the 

guidelines? 

J. Do EPA regulations require the use of 

these guidelines? 

II. How to Identify BART-eligible Sources 

A. What are the steps in identifying BARTeligible sources? 

1. Step 1: Identify emission units in the 

BART categories 

2. Step 2: Identify the start-up dates of the 

emission units 

3. Step 3: Compare the potential emissions 

to the 250 ton/yr cutoff 

4. Final step: Identify the emission units 

and pollutants that constitute the BARTeligible source. 

III. How to Identify Sources ‘‘Subject to 

BART’’

IV. The BART Determination: Analysis of 

BART Options 

A. What factors must I address in the 

Engineering Analysis? 

B. How does a BART engineering analysis 

compare to a BACT review under the 

PSD program? 

C. Which pollutants must I address in the 

engineering review?

D. How does a BART review relate to 

maximum achievable control technology 

(MACT) standards under CAA section 

112? 

E. What are the five basic steps of a caseby-case BART engineering analysis? 

1. Step 1: How do I identify all available 

retrofit emission control techniques? 

2. Step 2: How do I determine whether the 

options identified in Step 1 are 

technically feasible? 

3. Step 3: How do I develop a ranking of 

the technically feasible alternatives? 

4. Step 4: For a BART engineering analysis, 

what impacts must I calculate and 

report? What methods does EPA 

recommend for the impacts analyses? 

a. Impact analysis part 1: how do I estimate 

the costs of control? 

b. How do I take into account a project’s 

‘‘remaining useful life’’ in calculating 

control costs? 

c. What do we mean by cost effectiveness? 

d. How do I calculate average cost 

effectiveness? 

e. How do I calculate baseline emissions? 

f. How do I calculate incremental cost 

effectiveness? 

g. What other information should I provide 

in the cost impacts analysis? 

h. Impact analysis part 2: How should I 

analyze and report energy impacts? 

i. Impact analysis part 3: How do I analyze 

‘‘non-air quality environmental 

impacts?’’

j. What are examples of non-air quality 

environmental impacts? 

5. Step 5: How should I consider visibility 

impacts in the BART determination? 

F. How do I select the ‘‘best’’ alternative, 

using the results of Steps 1 through 5? 

1. Summary of the impacts analysis 

2. Selecting a ‘‘best’’ alternative 

3. In selecting a ‘‘best’’ alternative, should 

I consider the affordability of controls? 

4. SO2 limits for utility boilers 

5. NOX limits for utility boilers 

V. Enforceable Limits / Compliance Date 

VI. Emission Trading Program Overview 

A. What are the general steps in developing 

an emission trading program? 

B. What are emission budgets and 

allowances? 

C. What criteria must be met in developing 

an emission trading program as an 

alternative to BART? 

1. How do I identify sources subject to 

BART? 

2. How do I calculate the emissions 

reductions that would be achieved if 

BART were installed and operated on 

these sources? 

3. For a cap and trade program, how do I 

demonstrate that my emission budget 

results in emission levels that are 

equivalent to or less than the emissions 

levels that would result if BART were 

installed and operated? 

4. How do I ensure that trading budgets 

achieve ‘‘greater reasonable progress?’

5. How do I allocate emissions to sources? 

6. What provisions must I include in 

developing a system for tracking 

individual source emissions and 

allowances? 

7. How would a regional haze trading 

program interface with the requirements 

for ‘‘reasonably attributable’’ BART 

under § 51.302 of the regional haze rule?

I. Introduction and Overview 

A. What Is the Purpose of the 

Guidelines? 

The Clean Air Act (CAA), in sections 

169A and 169B, contains requirements 

for the protection of visibility in 156 

scenic areas across the United States. To 

meet the CAA’s requirements, we 

published regulations to protect against 

a particular type of visibility 

impairment known as ‘‘regional haze.’’

The regional haze rule is found in this 

part (40 CFR part 51), in §§ 51.300 

through 51.309. These regulations 

require, in § 51.308(e), that certain types 

of existing stationary sources of air 

pollutants install best available retrofit 

technology (BART). The guidelines are 

designed to help States and others (1) 

identify those sources that must comply 

with the BART requirement, and (2) 

determine the level of control 

technology that represents BART for 

each source. 

B. What Does the CAA Require 

Generally for Improving Visibility? 

Section 169A of the CAA, added to 

the CAA by the 1977 amendments, 

requires States to protect and improve 

visibility in certain scenic areas of 

national importance. The scenic areas 

protected by section 169A are called 

‘‘mandatory Class I Federal Areas.’’ In 

these guidelines, we refer to these as 

‘‘Class I areas.’’ There are 156 Class I 

areas, including 47 national parks 

(under the jurisdiction of the 

Department of Interior—National Park 

Service), 108 wilderness areas (under 

the jurisdiction of the Department of 

Interior—Fish and Wildlife Service or 

the Department of Agriculture—U.S. 

Forest Service), and one International 

Park (under the jurisdiction of the 

Roosevelt-Campobello International 

Commission). The Federal Agency with 

jurisdiction over a particular Class I area 

is referred to in the CAA as the Federal 

Land Manager. A complete list of the 

Class I areas is contained in 40 CFR part 

81, §§ 81.401 through 81.437, and you 

can find a map of the Class I areas at the 

following internet site: http://

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25213

1As noted in the preamble to the regional haze 

rule, States need not include a BART-eligible source 

in the trading program if the source already has 

installed BART-level pollution control technology 

and the emission limit is a federally enforceable 

requirement (64 FR 35742). We clarify in these 

guidelines that States may also elect to allow a 

source the option of installing BART-level controls 

within the 5-year period for compliance with the 

BART requirement [see section VI of these 

guidelines] rather than participating in a trading 

program.

www.epa.gov/ttn/oarpg/ t1/fr_notices/

classimp.gif.

The CAA establishes a national goal 

of eliminating man-made visibility 

impairment from all Class I areas. As 

part of the plan for achieving this goal, 

the visibility protection provisions in 

the CAA mandate that EPA issue 

regulations requiring that States adopt 

measures in their State Implementation 

Plans (SIPs), including long-term 

strategies, to provide for reasonable 

progress towards this national goal. The 

CAA also requires States to coordinate 

with the Federal Land Managers as they 

develop their strategies for addressing 

visibility. 

C. What Is the BART Requirement in the 

CAA? 

1. Under section 169A(b)(2)(A) of the 

CAA, States must require certain 

existing stationary sources to install 

BART. The BART requirement applies 

to ‘‘major stationary sources’’ from 26 

identified source categories which have 

the potential to emit 250 tons per year 

or more of any air pollutant. The CAA 

requires only sources which were put in 

place during a specific 15-year time 

interval to install BART. The BART 

requirement applies to sources that 

existed as of the date of the 1977 CAA 

amendments (that is, August 7, 1977) 

but which had not been in operation for 

more than 15 years (that is, not in 

operation as of August 7, 1962). 

2. The CAA requires BART when any 

source meeting the above description 

‘‘emits any air pollutant which may 

reasonably be anticipated to cause or 

contribute to any impairment of 

visibility’’ in any Class I area. In 

identifying a level of control as BART, 

States are required by section 169A(g) of 

the CAA to consider: 

(a) The costs of compliance, 

(b) The energy and non-air quality 

environmental impacts of compliance, 

(c) Any existing pollution control 

technology in use at the source, 

(d) The remaining useful life of the 

source, and 

(e) The degree of visibility 

improvement which may reasonably be 

anticipated from the use of BART. 

3. The CAA further requires States to 

make BART emission limitations part of 

their SIPs. As with any SIP revision, 

States must provide an opportunity for 

public comment on the BART 

determinations, and EPA’s action on 

any SIP revision will be subject to 

judicial review. 

D. What Types of Visibility Problems 

Does EPA Address in Its Regulations? 

1. We addressed the problem of 

visibility in two phases. In 1980, we 

published regulations addressing what 

we termed ‘‘reasonably attributable’’

visibility impairment. Reasonably 

attributable visibility impairment is the 

result of emissions from one or a few 

sources that are generally located in 

close proximity to a specific Class I area. 

The regulations addressing reasonably 

attributable visibility impairment are 

published in §§ 51.300 through 51.307. 

2. On July 1, 1999, we amended these 

regulations to address the second, more 

common, type of visibility impairment 

known as ‘‘regional haze.’’ Regional 

haze is the result of the collective 

contribution of many sources over a 

broad region. The regional haze rule 

slightly modified 40 CFR 51.300 

through 51.307, including the addition 

of a few definitions in § 51.301, and 

added new §§ 51.308 and 51.309. 

E. What Are the BART Requirements in 

EPA’s Regional Haze Regulations? 

1. In the July 1, 1999 rulemaking, we 

added a BART requirement for regional 

haze. You will find the BART 

requirements in 40 CFR 51.308(e). 

Definitions of terms used in 40 CFR 

51.308(e)(1) are found in § 51.301. 

2. As we discuss in detail in these 

guidelines, the regional haze rule 

codifies and clarifies the BART 

provisions in the CAA. The rule 

requires that States identify and list 

‘‘BART-eligible sources,’’ that is, that 

States identify and list those sources 

that fall within the 26 source categories, 

that were put in place during the 15-

year window of time from 1962 to 1977, 

and that have potential emissions 

greater than 250 tons per year. Once the 

State has identified the BART-eligible 

sources, the next step is to identify 

those BART-eligible sources that may 

‘‘emit any air pollutant which may 

reasonably be anticipated to cause or 

contribute to any impairment of 

visibility.’’ Under the rule, a source 

which fits this description is ‘‘subject to 

BART.’’ For each source subject to 

BART, States must identify the level of 

control representing BART based upon 

the following factors:

—paragraph 308(e)(1)(ii)(A) provides 

that States must identify the best 

system of continuous emission 

control technology for each source 

subject to BART taking into account 

the technology available, the costs of 

compliance, the energy and non-air 

quality environmental impacts of 

compliance, any pollution control 

equipment in use at the source, the 

remaining useful life of the source, 

and the degree of visibility 

improvement that may be expected 

from available control technology.

3. After a State has identified the level 

of control representing BART (if any), it 

must establish an emission limit 

representing BART and must ensure 

compliance with that requirement no 

later than 5 years after EPA approves the 

SIP. States may establish design, 

equipment, work practice or other 

operational standards when limitations 

on measurement technologies make 

emission standards infeasible.

F. Do States Have an Alternative To 

Requiring BART Controls at Specific 

Facilities? 

1. States are given the option under 40 

CFR 51.308(e)(2) of adopting an 

alternative approach to requiring 

controls on a case-by-case basis for each 

source subject to BART. If a State 

chooses to adopt alternative measures, 

such as an emissions trading program, 

under 40 CFR 51.308(e)(2)(i) the State 

must demonstrate that any such 

alternative will achieve greater 

‘‘reasonable progress’’ than would have 

resulted from installation of BART from 

all sources subject to BART. Such a 

demonstration must include: 

(a) A list of all BART-eligible sources; 

(b) An analysis of the best system of 

continuous emission control technology 

available for all sources subject to 

BART, taking into account the 

technology available, the costs of 

compliance, the energy and non-air 

quality environmental impacts of 

compliance, any pollution control 

equipment in use at the source, and the 

remaining useful life of the source. 

Unlike the analysis for BART under 40 

CFR 51.308(e)(1), which requires that 

these factors be considered on a case-bycase basis, States may consider these 

factors on a category-wide basis, as 

appropriate, in evaluating alternatives to 

BART; 

(c) An analysis of the degree of 

visibility improvement that would 

result from the alternative program in 

each affected Class I area. 

States must ensure that a trading 

program or other such measure includes 

all BART-eligible sources, unless a 

source has installed BART, or plans to 

install BART consistent with 

51.308(e)(1).1 A trading program also

25214 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

2 In order to account for the possibility that 

BART-eligible sources could go unrecognized, we 

recommend that you adopt requirements placing a 

responsibility on source owners to self-identify if 

they meet the criteria for BART-eligible sources.

may include sources not subject to 

BART. A State may also work together 

with other States to develop a common 

trading program. Under 40 CFR 

51.308(e)(2) States must also include in 

their SIPs details on how they would 

implement the emission trading 

program or other alternative measure. 

States must provide a detailed 

description of the program, including 

schedules for compliance, the emissions 

reductions that it will require, the 

administrative and technical procedures 

for implementing the program, rules for 

accounting and monitoring emissions, 

and procedures for enforcement.

G. What Is Included in the Guidelines? 

1. In the guidelines, we provide 

procedures States must use in 

implementing the regional haze BART 

requirements on a source-by-source 

basis, as provided in 40 CFR 

51.308(e)(1). We address general topics 

related to development of a trading 

program or other alternative allowed by 

40 CFR 51.308(e)(2). 

2. The BART analysis process, and the 

contents of these guidelines, are as 

follows: 

(a) Identification of all BART-eligible 

sources. Section II of these guidelines 

outlines a step-by-step process for 

identifying BART-eligible sources. 

(b) Identification of sources subject to 

BART. As noted above, sources ‘‘subject 

to BART’’ are those BART-eligible 

sources which ‘‘emit a pollutant which 

may reasonably be anticipated to cause 

or contribute to any impairment of 

visibility in any Class I area.’’ We 

discuss considerations for identifying 

sources subject to BART in section III of 

the guidance. 

(c) The BART determination process.

For each source subject to BART, the 

next step is to conduct an analysis of 

emissions control alternatives. This step 

requires the identification of available, 

technically feasible, retrofit 

technologies, and for each technology 

identified, analysis of the cost of 

compliance, and the energy and non-air 

quality environmental impacts, taking 

into account the remaining useful life 

and existing control technology present 

at the source. This step also requires 

taking into account the degree of 

visibility improvement that would be 

achieved in each affected Class I area as 

a result of the emissions reductions 

achievable from sources subject to 

BART. The visibility impacts analysis 

must take into account the degree of 

improvement in visibility from the 

emissions reductions from the ‘‘best 

technologies’’ identified. For each 

source, a ‘‘best system of continuous 

emission reduction’’ will be selected 

based upon these analyses. Procedures 

for the BART determination step are 

described in section IV of these 

guidelines. 

(d) Emissions limits. States must 

establish enforceable limits, including a 

deadline for compliance, for each source 

subject to BART. Considerations related 

to these limits are discussed in section 

VI of these guidelines. 

(e) Considerations in establishing a 

trading program alternative. General 

guidance on how to develop an 

emissions trading program alternative is 

contained in section VII of these 

guidelines.

H. Who Is the Target Audience for the 

Guidelines? 

1. The guidelines are written 

primarily for the benefit of State, local 

and Tribal agencies, and describe the 

requirements for including the BART 

determinations and emission limitations 

in their SIPs or Tribal implementation 

plans (TIPs). Throughout the guidelines, 

which are written in a question and 

answer format, we ask questions ‘‘How 

do I * * *?’’ and answer with phrases 

‘‘you should * * *, you must * *

*.’’ The ‘‘you’’ means a State, local or 

Tribal agency conducting the analysis.2

We recognize, however, that agencies 

may prefer to require source owners to 

assume part of the analytical burden, 

and that there will be differences in how 

the supporting information is collected 

and documented. We also recognize that 

much of the data collection, analysis, 

and rule development may be 

performed by Regional Planning 

Organizations, for adoption within each 

SIP or TIP.

2. The preamble to the 1999 regional 

haze rule discussed at length the issue 

of Tribal implementation. As explained 

there, requirements related to visibility 

are among the programs for which 

Tribes may be determined eligible and 

receive authorization to implement 

under the ‘‘Tribal Authority Rule’’

(‘‘TAR’’) (40 CFR 49.1 through 49.11). 

Tribes are not subject to implementation 

plan deadlines and may use a modular 

approach to CAA implementation. We 

believe there are very few BART-eligible 

sources located on Tribal lands. Where 

such sources exist, the affected Tribe 

may apply for delegation of 

implementation authority for this rule, 

following the process set forth in the 

TAR. 

I. Do EPA Regulations Require the Use 

of These Guidelines? 

Section 169A(b) requires us to issue 

these guidelines for States to follow in 

establishing BART emission limitations 

for fossil-fuel fired generating power 

plants having a capacity in excess of 750 

megawatts. This document is intended 

to fulfill that requirement. These 

guidelines also establish procedures that 

States must follow in establishing BART 

emission limitations for all other BART 

sources. Under 40 CFR 308(e)(1)(ii)(B), 

we are requiring States to follow these 

guidelines in all BART determinations. 

We believe this approach will promote 

equitable application of the BART 

requirement to source owners with 

similar sources in different States. 

II. How To Identify BART-Eligible 

Sources 

This section provides guidelines on 

how to identify BART-eligible sources. 

A BART-eligible source is an existing 

stationary source in any of 26 listed 

categories which meets criteria for 

startup dates and potential emissions. 

A. What Are the Steps in Identifying 

BART-Eligible Sources? 

Figure 1 shows the steps for 

identifying whether the source is a 

‘‘BART-eligible source’’:

Step 1: Identify the emission units in the 

BART categories, 

Step 2: Identify the start-up dates of those 

emission units, and 

Step 3: Compare the potential emissions to 

the 250 ton/yr cutoff.

Figure 1. How to determine whether 

a source is BART-eligible: 

Step 1: Identify emission units in the 

BART categories. 

Does the plant contain emissions 

units in one or more of the 26 source 

categories?

➜ No ➜ Stop 

➜ Yes ➜ Proceed to Step 2

Step 2: Identify the start-up dates of 

these emission units. 

Do any of these emissions units meet 

the following two tests? 

In existence on August 7, 1977 and, 

began operation after August 7, 1962.

➜ No ➜ Stop 

➜ Yes ➜ Proceed to Step 3

Step 3: Compare the potential 

emissions from these emission units to 

the 250 ton/yr cutoff. 

Identify the ‘‘stationary source’’ that 

includes the emission units you 

identified in Step 2. 

Add the current potential emissions 

from all the emission units identified in 

Steps 1 and 2 that are included within 

the ‘‘stationary source’’ boundary. 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25215

Are the potential emissions from 

these units 250 tons per year or more for 

any visibility-impairing pollutant?

➜ No ➜ Stop 

➜ Yes ➜ These emissions 

units comprise 

the ‘‘BART-eligible source.’’. 

1. Step 1: Identify Emission Units in the 

BART Categories 

1. The BART requirement only 

applies to sources in specific categories 

listed in the CAA. The BART 

requirement does not apply to sources 

in other source categories, regardless of 

their emissions. The listed categories 

are: 

(1) Fossil-fuel fired steam electric plants 

of more than 250 million British 

thermal units (BTU) per hour heat 

input, 

(2) Coal cleaning plants (thermal 

dryers), 

(3) Kraft pulp mills, 

(4) Portland cement plants, 

(5) Primary zinc smelters, 

(6) Iron and steel mill plants, 

(7) Primary aluminum ore reduction 

plants, 

(8) Primary copper smelters, 

(9) Municipal incinerators capable of 

charging more than 250 tons of refuse 

per day, 

(10) Hydrofluoric, sulfuric, and nitric 

acid plants, 

(11) Petroleum refineries, 

(12) Lime plants, 

(13) Phosphate rock processing plants, 

(14) Coke oven batteries, 

(15) Sulfur recovery plants, 

(16) Carbon black plants (furnace 

process), 

(17) Primary lead smelters, 

(18) Fuel conversion plants, 

(19) Sintering plants, 

(20) Secondary metal production 

facilities, 

(21) Chemical process plants, 

(22) Fossil-fuel boilers of more than 250 

million BTUs per hour heat input, 

(23) Petroleum storage and transfer 

facilities with a capacity exceeding 

300,000 barrels, 

(24) Taconite ore processing facilities, 

(25) Glass fiber processing plants, and 

(26) Charcoal production facilities. 

2. Some plants may have emission 

units from more than one category, and 

some emitting equipment may fit into 

more than one category. Examples of 

this situation are sulfur recovery plants 

at petroleum refineries, coke oven 

batteries and sintering plants at steel 

mills, and chemical process plants at 

refineries. For Step 1, you identify all of 

the emissions units at the plant that fit 

into one or more of the listed categories. 

You do not identify emission units in 

other categories.

Example: A mine is collocated with an 

electric steam generating plant and a coal 

cleaning plant. You would identify emission 

units associated with the electric steam 

generating plant and the coal cleaning plant, 

because they are listed categories, but not the 

mine, because coal mining is not a listed 

category.

3. The category titles are generally 

clear in describing the types of 

equipment to be listed. Most of the 

category titles are very broad 

descriptions that encompass all 

emission units associated with a plant 

site (for example, ‘‘petroleum refining’’

and ‘‘kraft pulp mills’’). In addition, this 

same list of categories appears in the 

PSD regulations, for example in 40 CFR 

52.21. States and source owners need 

not revisit any interpretations of the list 

made previously for purposes of the 

PSD program. We provide the following 

clarifications for a few of the category 

titles: 

(1) ‘‘Steam electric plants of more 

than 250 million BTU/hr heat input.’’

Because the category refers to ‘‘plants,’’

boiler capacities must be aggregated to 

determine whether the 250 million 

BTU/hr threshold is reached. This 

definition also includes those plants 

that cogenerate steam and electricity. 

Also, consistent with other EPA rules, 

the definition only includes those plants 

that generate electricity for sale.

Example: A stationary source includes a 

steam electric plant with three 100 million 

BTU/hr boilers. Because the aggregate 

capacity exceeds 250 million BTU/hr for the 

‘‘plant,’’ these boilers would be identified in 

Step 2.

‘‘Steam electric plants’’ includes 

combined cycle turbines because of 

their incorporation of heat recovery 

steam generators. Simple cycle turbines 

are not ‘‘steam electric plants’’ because 

they typically do not make steam.

(2) ‘‘Fossil-fuel boilers of more than 

250 million BTU/hr heat input.’’ We 

interpret this category title to cover only 

those boilers that are individually 

greater than 250 million BTU/hr. 

However, an individual boiler smaller 

than 250 million BTU/hr should be 

subject to BART if it is part of a process 

description at a plant that is in a 

different BART category—for example, a 

boiler at a chemical process plant. 

Also, you should consider a multifuel boiler to be a fossil-fuel boiler if it 

burns at least 50 percent fossil fuels. 

You may take federally enforceable 

operational limits into account in 

determining whether a multi-fuel 

boiler’s fossil fuel capacity exceeds 250 

million Btu/hr. 

(3) ‘‘Petroleum storage and transfer 

facilities with a capacity exceeding 

300,000 barrels.’’ The 300,000 barrel 

cutoff refers to total facility-wide tank 

capacity for tanks that were put in place 

within the 1962–1977 time period, and 

includes gasoline and other petroleumderived liquids. 

(4) ‘‘Phosphate rock processing 

plants.’’ This category descriptor is 

broad, and includes all types of 

phosphate rock processing facilities, 

including elemental phosphorous plants 

as well as fertilizer production plants. 

(5) Charcoal production facilities.’’

We interpret this category to include 

charcoal briquet manufacturing and 

activated carbon production. 

(6) ‘‘Chemical process plants’’ and 

pharmaceutical manufacturing. 

Consistent with past policy, we 

interpret the category ‘‘chemical process 

plants’’ to include those facilities within 

2-digit SIC 28. Accordingly, we interpret 

the term ‘‘chemical process plants’’ to 

include pharmaceutical manufacturing 

facilities. 

(7) ‘‘Secondary metal production.’’

We interpret this category to include 

nonferrous metal facilities included 

within SIC code 3341, and secondary 

ferrous metal facilities that we also 

consider to be included within the 

category ‘‘iron and steel mill plants.’’

2. Step 2: Identify the Start-up Dates of 

the Emission Units 

1. Emissions units listed under Step 1 

are BART-eligible only if they were ‘‘in 

existence’’ on August 7, 1977 but were 

not ‘‘in operation’’ before August 7, 

1962. 

What Does ‘‘in Existence on August 7, 

1977’’ Mean? 

2. The regional haze rule defines ‘‘in 

existence’’ to mean that: ‘‘the owner or 

operator has obtained all necessary 

preconstruction approvals or permits 

required by Federal, State, or local air 

pollution emissions and air quality laws 

or regulations and either has (1) begun, 

or caused to begin, a continuous 

program of physical on-site construction 

of the facility or (2) entered into binding 

agreements or contractual obligations, 

which cannot be canceled or modified 

without substantial loss to the owner or 

operator, to undertake a program of 

construction of the facility to be 

completed in a reasonable time.’’ See 40 

CFR 51.301.

Thus, the term ‘‘in existence’’ means the 

same thing as the term ‘‘commence 

construction’’ as that term is used in the 

PSD regulations. See 40 CFR 

51.165(a)(1)(xvi) and 40 CFR 52.21(b)(9). 

Thus, an emissions unit could be ‘‘in 

existence’’ according to this test even if 

it did not begin operating until several 

years later.

25216 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

Example: The owner or operator obtained 

necessary permits in early 1977 and entered 

into binding construction agreements in June 

1977. Actual on-site construction began in 

late 1978, and construction was completed in 

mid-1979. The source began operating in 

September 1979. The emissions unit was ‘‘in 

existence’’ as of August 7, 1977.

Emissions units of this size for which 

construction commenced AFTER 

August 7, 1977 (i.e., were not ‘‘in 

existence’’ on August 7, 1977) were 

subject to major new source review 

(NSR) under the PSD program. Thus, the 

August 7, 1977 ‘‘in existence’’ test is 

essentially the same thing as the 

identification of emissions units that 

were grandfathered from the NSR 

review requirements of the 1977 CAA 

amendments. 

3. Sources are not BART-eligible if the 

only change at the plant during the 

relevant time period was the addition of 

pollution controls. For example, if the 

only change at a copper smelter during 

the 1962 through 1977 time period was 

the addition of acid plants for the 

reduction of SO2 emissions, these 

emission controls would not by 

themselves trigger a BART review. 

What Does ‘‘in Operation Before August 

7, 1962’’ Mean? 

1. An emissions unit that meets the 

August 7, 1977 ‘‘in existence’’ test is not 

BART-eligible if it was in operation 

before August 7, 1962. ‘‘In operation’’ is 

defined as ‘‘engaged in activity related 

to the primary design function of the 

source.’’ This means that a source must 

have begun actual operations by August 

7, 1962 to satisfy this test.

Example: The owner or operator entered 

into binding agreements in 1960. Actual onsite construction began in 1961, and 

construction was complete in mid-1962. The 

source began operating in September 1962. 

The emissions unit was not ‘‘in operation’’

before August 7, 1962 and is therefore subject 

to BART. 

What Is a ‘‘Reconstructed Source?’

2. 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 BARTeligible facility (reflected in detail in the 

definition of ‘‘existing stationary 

facility’’) includes consideration of 

sources that were in operation before 

August 7, 1962, but were reconstructed 

during the August 7, 1962 to August 7, 

1977 time period. 

3. Under the regulation, a 

reconstruction has taken place if ‘‘the 

fixed capital cost of the new component 

exceeds 50 percent of the fixed capital 

cost of a comparable entirely new 

source.’’ The rule also states that ‘‘Any 

final decision as to whether 

reconstruction has occurred must be 

made in accordance with the provisions 

of §§ 60.15 (f)(1) through (3) of this 

title.’’ [40 CFR 51.301]. ‘‘§§ 60.15(f)(1) 

through (3)’’ refers to the general 

provisions for New Source Performance 

Standards (NSPS). Thus, the same 

policies and procedures for identifying 

reconstructed ‘‘affected facilities’’ under 

the NSPS program must also be used to 

identify reconstructed ‘‘stationary 

sources’’ for purposes of the BART 

requirement. 

4. You should identify 

reconstructions on an emissions unit 

basis, rather than on a plantwide basis. 

That is, you need to identify only the 

reconstructed emission units meeting 

the 50 percent cost criterion. You 

should include reconstructed emission 

units in the list of emission units you 

identified in Step 1. You need consider 

as possible reconstructions only those 

emissions units with the potential to 

emit more than 250 tons per year of any 

visibility-impairing pollutant. 

5. The ‘‘in operation’’ and ‘‘in 

existence’’ tests apply to reconstructed 

sources. 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. 

How Are Modifications Treated Under 

the BART Provision? 

1. The NSPS program and the major 

source NSR program both contain the 

concept of modifications. In general, the 

term ‘‘modification’’ refers to any 

physical change or change in the 

method of operation of an emissions 

unit that leads to an increase in 

emissions. 

2. The BART provision in the regional 

haze rule contains no explicit treatment 

of modifications. Accordingly, 

guidelines are needed on how modified 

emissions units, previously subject to 

best available control technology 

(BACT), lowest achievable emission rate 

(LAER) and/or NSPS, are treated under 

the rule. The BART requirements in the 

CAA do not appear to provide any 

exemption for sources which were 

modified since 1977. Therefore we 

believe that the best interpretation of the 

CAA visibility provisions is that a 

subsequent modification does not 

change a unit’s construction date for the 

purpose of BART applicability. 

Accordingly, an emissions unit which 

began operation within the 1962–1977 

time window, but was modified after 

August 7, 1977, is BART-eligible. 

However, if an emissions unit began 

operation before 1962, it is not BARTeligible if it is modified at a later date, 

so long as the modification is not also 

a ‘‘reconstruction.’’ We note, however, 

that if such a modification was a major 

modification subject to the BACT, 

LAER, or NSPS levels of control, the 

review process will take into account 

the level of control that is already in 

place and may find that the level of 

controls are already consistent with 

BART. 

3. Step 3: Compare the Potential 

Emissions to the 250 Ton/Yr Cutoff 

The result of Steps 1 and 2 will be a 

list of emissions units at a given plant 

site, including reconstructed emissions 

units, that are within one or more of the 

BART categories and that were placed 

into operation within the 1962–1977 

time window. The third step is to 

determine whether the total emissions 

represent a current potential to emit that 

is greater than 250 tons per year of any 

single visibility impairing pollutant. In 

most cases, you will add the potential 

emissions from all emission units on the 

list resulting from Steps 1 and 2. In a 

few cases, you may need to determine 

whether the plant contains more than 

one ‘‘stationary source’’ as the regional 

haze rule defines that term, and as we 

explain further below. 

What Pollutants Should I Address? 

Visibility-impairing pollutants 

include the following: 

(1) Sulfur dioxide (SO2), 

(2) Nitrogen oxides (NO2), 

(3) Particulate matter. (You may use 

PM10 as the indicator for particulate 

matter. We do not recommend use of 

total suspended particulates (TSP). 

Emissions of PM10 include the 

components of PM2.5 as a subset. There 

is no need to have separate 250 ton 

thresholds for PM10 and PM2.5, because 

250 tons of PM10 represents at most 250 

tons of PM2.5, and at most 250 tons of 

any individual particulate species such 

as elemental carbon, crustal material, 

etc.), and

(4) Volatile organic compounds 

(VOC). 

Can States Establish De Minimis Levels 

of Emissions for Pollutants at BARTEligible Sources? 

In order to simplify BART 

determinations, States may choose to 

identify de minimis levels of pollutants 

at BART-eligible sources. De minimis 

values should be identified with the 

purpose of excluding only those 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25217

3Note: Most of these terms and definitions are the 

same for regional haze and the 1980 visibility 

regulations. For the regional haze rule we use the 

term ‘‘BART-eligible source’’ rather than ‘‘existing 

stationary facility’’ to clarify that only a limited 

subset of existing stationary sources are subject to 

BART.

4We recognize that we are in a transition period 

from the use of the SIC system to a new system 

called the North American Industry Classification 

System (NAICS). For purposes of identifying BARTeligible sources, you may use either 2-digit SICS or 

the equivalent in the NAICS system.

5Note: The concept of support facility used for 

the NSR program applies here as well. Support 

facilities, that is facilities that convey, store or 

otherwise assist in the production of the principal 

product, must be grouped with primary facilities 

even when the facilities fall within separate SIC 

codes. For purposes of BART reviews, however, 

such support facilities (a) must be within one of the 

26 listed source categories and (b) must have been 

in existence as of August 7, 1977, and (c) must not 

have been in operation as of August 7, 1962.

emissions so minimial that they are 

unlikely to contribute to regional haze. 

Any de minimis values that States 

consider must not be higher than the 

PSD applicability levels: 40 tons/yr for 

SO2, NOX and VOC, and 15 tons/yr for 

PM10. 

What Does the Term ‘‘Potential’’

Emissions Mean? 

The regional haze rule defines 

potential to emit as follows:

‘‘Potential to emit’’ means the maximum 

capacity of a stationary source to emit a 

pollutant under its physical and operational 

design. Any physical or operational 

limitation on the capacity of the source to 

emit a pollutant including air pollution 

control equipment and restrictions on hours 

of operation or on the type or amount of 

material combusted, stored, or processed, 

shall be treated as part of its design if the 

limitation or the effect it would have on 

emissions is federally enforceable. Secondary 

emissions do not count in determining the 

potential to emit of a stationary source.

This definition is identical to that in the 

PSD program [40 CFR 51.166 and 

51.18]. This means that a source which 

actually emits less than 250 tons per 

year of a visibility-impairing pollutant is 

BART-eligible if its emissions would 

exceed 250 tons per year when 

operating at its maximum physical and 

operational design (and considering all 

federally enforceable permit limits).

Example: A source, while operating at onefourth of its capacity, emits 75 tons per year 

of SO2. If it were operating at 100 percent of 

its maximum capacity, the source would emit 

300 tons per year. Because under the above 

definition such a source would have 

‘‘potential’’ emissions that exceed 250 tons 

per year, the source (if in a listed category 

and built during the 1962–1977 time 

window) would be BART-eligible. 

How Do I Identify Whether a Plant Has 

More Than One ‘‘Stationary Source?’’

1. The regional haze rule, in 40 CFR 

51.301, defines a stationary source as a 

‘‘building, structure, facility or 

installation which emits or may emit 

any air pollutant.’’ 3 The rule further 

defines ‘‘building, structure or facility’’

as:

All of the pollutant-emitting activities 

which belong to the same industrial 

grouping, are located on one or more 

contiguous or adjacent properties, and 

are under the control of the same person 

(or persons under common control). 

Pollutant-emitting activities must be 

considered as part of the same industrial 

grouping if they belong to the same 

Major Group (i.e., which have the same 

two-digit code) as described in the 

Standard Industrial Classification 

Manual, 1972 as amended by the 1977 

Supplement (U.S. Government Printing 

Office stock numbers 4101–0066 and 

003–005–00176–0, respectively). 

2. In applying this definition, it is 

necessary to determine which facilities 

are located on ‘‘contiguous or adjacent 

properties.’’ Within this contiguous and 

adjacent area, it is also necessary to 

group those emission units that are 

under ‘‘common control.’’ We note that 

these plant boundary issues and 

‘‘common control’’ issues are very 

similar to those already addressed in 

implementation of the title V operating 

permits program and in NSR. 

3. For emission units within the 

‘‘contiguous or adjacent’’ boundary and 

under common control, you must group 

emission units that are within the same 

industrial grouping (that is, associated 

with the same 2-digit Standard 

Industrial Classification (SIC) code).4

For most plants on the BART source 

category list, there will only be one 2-

digit SIC that applies to the entire plant. 

For example, all emission units 

associated with kraft pulp mills are 

within SIC code 26, and chemical 

process plants will generally include 

emission units that are all within SIC 

code 28. The ‘‘2-digit SIC test’’ applies 

in the same way as the test is applied 

in the major source NSR programs.5

4. For purposes of the regional haze 

rule, you must group emissions from all 

emission units put in place within the 

1962–1977 time period that are within 

the 2-digit SIC code, even if those 

emission units are in different categories 

on the BART category list.

Examples: A chemical plant which started 

operations within the 1962 to 1977 time 

period manufactures hydrochloric acid 

(within the category title ‘‘Hydrochloric, 

sulfuric, and nitric acid plants’’) and various 

organic chemicals (within the category title 

‘‘chemical process plants’’), and has onsite an 

industrial boiler greater than 250 million 

BTU/hour. All of the emission units are 

within SIC 28 and, therefore, all the emission 

units are considered in determining BART 

eligibility of the plant. You sum the 

emissions over all of these emission units to 

see whether there are more than 250 tons per 

year of potential emissions. 

A steel mill which started operations 

within the 1962 to 1977 time period includes 

a sintering plant, a coke oven battery, and 

various other emission units. All of the 

emission units are within SIC 33. You sum 

the emissions over all of these emission units 

to see whether there are more than 250 tons 

per year of potential emissions.

4. Final Step: Identify the Emissions 

Units and Pollutants That Constitute the 

BART-Eligible Source 

If the emissions from the list of 

emissions units at a stationary source 

exceed a potential to emit of 250 tons 

per year for any visibility-impairing 

pollutant, then that collection of 

emissions units is a BART-eligible 

source. A BART analysis is required for 

each visibility-impairing pollutant 

emitted at each BART-eligible source.

Example: A stationary source comprises 

the following two emissions units, with the 

following potential emissions: 

Emissions unit A—200 tons/yr SO2; 150 

tons/yr NOX; 25 tons/yr PM. 

Emissions unit B—100 tons/yr SO2; 75 

tons/yr NOX; 10 tons/yr PM.

For this example, potential emissions of SO2

are 300 tons/yr, which exceeds the 250 tons/

yr threshold. Accordingly, the entire 

‘‘stationary source’’, that is, emissions units 

A and B, are subject to a BART review for 

SO2, NOX, and PM, even though the potential 

emissions of PM and NOX at each emissions 

unit are less than 250 tons/yr each.

Example: The total potential emissions, 

obtained by adding the potential emissions of 

all emission units in a listed category at a 

plant site, are as follows: 200 tons/yr SO2, 

150 tons/yr NOX, 25 tons/yr PM. 

Even though total emissions exceed 250 

tons/yr, no individual regulated pollutant 

exceeds 250 tons/yr and this source is not 

BART-eligible.

III. How To Identify Sources ‘‘Subject to 

BART’’

Once you have identified and 

compiled your list of BART-eligible 

sources, you need to determine which of 

those sources may cause or contribute to 

any visibility impairment in a Class I 

area (i.e., which of those sources should 

be subject to BART). First, you may 

choose to consider that all of the BARTeligible sources in your State are subject 

to BART (i.e., none are exempt). 

Alternatively, you may submit to EPA a 

demonstration, based on overall 

visibility impacts, that the sum of all 

emissions from BART-eligible sources

25218 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

in your State do not cause or contribute 

to any visibility impairment in a Class 

I area (i.e., none of your BART-eligible 

sources are subject to BART; all are 

exempt).

However, if you cannot or choose not 

to demonstrate to EPA that the sum total 

of emissions from BART-eligible sources 

in your State do not cause or contribute 

to any visibility impairment in Class I 

areas, and if you also choose not to 

consider that all BART-eligible sources 

should automatically be subject to 

BART, you may use the third exemption 

option, individual source modeling. The 

individual source exemption process is 

presented below. 

1. Individual Source Exemption Process 

(CALPUFF Modeling) 

You may elect to do the modeling or 

to require the source to do the modeling. 

If the source is making the visibility 

impact determination, you should 

review and approve or disapprove of the 

source’s analysis before making the 

exemption determination. For each 

BART-eligible source: 

a. Submit a Modeling protocol to EPA. 

If you are having your sources do the 

modeling, they should prepare a 

modeling protocol that is acceptable to 

you and the EPA. If modeling is to be 

conducted for receptors greater than 200 

km from the emission unit, a modeling 

protocol is required. Some critical items 

to include are meteorological and 

terrain data, as well as source-specific 

information (stack height, temperature, 

exit velocity, elevation, and allowable 

emission rate of applicable pollutants), 

and receptor data from appropriate 

Class I areas. Distances from the actual 

BART-eligible emission unit that is 

modeled to each Class I area should be 

measured from the nearest point in the 

Class I area. All receptors in the Class 

I area should be analyzed. The State 

should bear in mind that, for sources 50 

km from a Class I area, some receptors 

within that Class I area may be less than 

50 km from the source while other 

receptors within that same Class I area 

may be greater than 50 km from the 

same source; this situation may result in 

two different modeling approaches for 

the same Class I area and source, 

depending upon the State’s chosen 

method for modeling sources less than 

50 km. 

b. Once the modeling methodology is 

approved, for each Class I area: 

i. Run CALPUFF for receptors in the 

Class I area that are greater than or equal 

to 50 km from the source. For CALPUFF 

setup (meteorological data and 

parameter settings), we recommend 

following EPA’s Interagency Workgroup 

on Air Quality Modeling (IWAQM) 

Phase 2 Summary Report and 

Recommendations for Modeling Long 

Range Transport Impacts. 

(a) Tabulate Results —Calculate 24-hr 

values for each receptor as the change 

in deciviews compared against natural 

visibility conditions. 

(b) Make the exemption 

determination—If the change in the 

maximum 24-hour value at any receptor 

is greater than 0.5 deciviews, the source 

is subject to BART. 

ii. For sources not subject to BART 

under i. above and where the distance 

from the BART-eligible unit modeled to 

the nearest receptor at any Class I area 

is less than 50 km: 

(1) You will need to determine 

whether or not to exempt the source. 

Use your discretion for determining 

visibility impacts giving consideration 

to CALPUFF and to other EPA-approved 

methods. 

Note that each of the modeling 

options may be supplemented with 

source apportionment data or source 

apportionment modeling that is 

acceptable to the State and the EPA 

regional office.

IV. The BART Determination: Analysis 

of BART Options 

This section describes the process for 

the engineering analysis of control 

options for sources subject to BART. 

A. What Factors Must I Address in the 

Engineering Analysis? 

The visibility regulations define 

BART as follows: 

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 * * * [a BART -eligible 

source]. The emission limitation must 

be established, on a case-by-case basis, 

taking into consideration the technology 

available, the costs of compliance, the 

energy and non-air quality 

environmental impacts of compliance, 

any pollution control equipment in use 

or in existence at the source, the 

remaining useful life of the source, and 

the degree of improvement in visibility 

which may reasonably be anticipated to 

result from the use of such technology. 

The BART analysis requirement in 40 

CFR 51.308(e)(1)(ii)(A) has two parts: an 

engineering analysis and a visibility 

impacts analysis. This section of the 

guidelines addresses the requirements 

for the engineering analysis. Your 

engineering analysis identifies the best 

system of continuous emission 

reduction taking into account:

(1) The available retrofit control options, 

(2) Any pollution control equipment in 

use at the source (which affects the 

availability of options and their 

impacts), 

(3) The costs of compliance with control 

options, 

(4) The remaining useful life of the 

facility (which as we will discuss 

below, is an integral part of the cost 

analysis), and 

(5) The energy and non-air quality 

environmental impacts of control 

options.

We discuss the requirement for a 

visibility impacts analysis below in 

section V. 

(4) How Does a BART Engineering 

Analysis Compare to a BACT Review 

Under the PSD Program? 

The process for a BART analysis is 

very similar to the BACT review as 

described in the New Source Review 

Workshop Manual (Draft, October 1990). 

Consistent with the Workshop Manual, 

the BART engineering analysis requires 

that all available control technologies be 

ranked in descending order of control 

effectiveness (i.e. percent control). You 

must examine the most stringent 

alternative first. That alternative is 

selected as the ‘‘best’’ unless you 

demonstrate and document that the 

alternative cannot be justified based 

upon the consideration of the five 

statutory factors discussed below. If you 

eliminate the most stringent technology 

in this fashion, you then consider the 

next most stringent alternative, and so 

on. 

Although very similar in process, 

BART reviews differ in several respects 

from the BACT review described in the 

NSR Draft Manual. First, because all 

BART reviews apply to existing sources, 

the available controls and the impacts of 

those controls may differ from source to 

source. Second, the CAA requires you to 

take slightly different factors into 

account in determining BART and 

BACT. In a BACT analysis, the 

permitting authority must consider the 

‘‘energy, environmental and economic 

impacts and other costs’’ associated 

with a control technology in making its 

determination. In a BART analysis, on 

the other hand, the State must take into 

account the ‘‘cost of compliance, the 

remaining useful life of the source, the 

energy and nonair quality 

environmental impacts of compliance, 

any existing pollution control 

technology in use at the source, and the 

degree of improvement in visibility from 

the use of such technology’’ in making 

its BART determination. Because of the 

differences in terminology, the BACT 

review process tends to encompass a 

broader range of factors. For example, 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25219

6That is, emission units that were in existence on 

August 7, 1977 and which began actual operation 

on or after August 7, 1962.

7 In identifying ‘‘all’’ options, you must identify 

the most stringent option and a reasonable set of 

options for analysis that reflects a comprehensive 

list of available technologies. It is not necessary to 

list all permutations of available control levels that 

exist for a given technology—the list is complete if 

it includes the maximum level of control each 

technology is capable of achieving.

8 In EPA’s 1980 BART guidelines for reasonably 

attributable visibility impairment, we concluded 

that NSPS standards generally, at that time, 

represented the best level sources could install as 

BART, and we required no further demonstration if 

an NSPS level was selected. In the 20 year period 

since this guidance was developed, there have been 

advances in SO2 control technologies as well as 

technologies for the control of other pollutants, 

confirmed by a number of recent retrofits at 

Western power plants. Accordingly, EPA no longer 

concludes that the NSPS level of controls 

automatically represents ‘‘the best these sources can 

install.’’ While it is possible that a detailed analysis 

of the BART factors could result in the selection of 

an NSPS level of control, we believe that you 

should only reach this conclusion based upon an 

analysis of the full range of control options.

the term ‘‘environmental impacts’’ in 

the BACT definition is more broad than 

the term ‘‘nonair quality environmental 

impacts’’ used in the BART definition. 

Accordingly, there is no requirement in 

the BART engineering analysis to 

evaluate adverse air quality impacts of 

control alternatives such as the relative 

impacts on hazardous air pollutants, 

although you may wish to do so. 

Finally, for the BART analysis, there is 

no minimum level of control required, 

while any BACT emission limitation 

must be at least as stringent as any 

NSPS that applies to the source.

(5) Which Pollutants Must I Address in 

the Engineering Review? 

Once you determine that a source is 

subject to BART, then a BART review is 

required for each visibility-impairing 

pollutant emitted. In a BART review, for 

each affected emission unit, you must 

establish BART for each pollutant that 

can impair visibility. Consequently, the 

BART determination must address air 

pollution control measures for each 

emissions unit or pollutant emitting 

activity subject to review.

Example: Plantwide emissions from 

emission units within the listed categories 

that began operation within the ‘‘time 

window’’ for BART 6 are 300 tons/yr of NOX, 

200 tons/yr of SO2, and 150 tons/yr of 

primary particulate. Emissions unit A emits 

200 tons/yr of NOX, 100 tons/yr of SO2, and 

100 tons/yr of primary particulate. Other 

emission units, units B through H, which 

began operating in 1966, contribute lesser 

amounts of each pollutant. For this example, 

a BART review is required for NOX, SO2, and 

primary particulate, and control options must 

be analyzed for units B through H as well as 

unit A.

D. How Does a BACT Review Relate to 

Maximum Achievable Control 

Technology (MACT) Standards Under 

CAA Section 112? 

For VOC and PM sources subject to 

MACT standards, States may streamline 

the analysis by including a discussion of 

the MACT controls and whether any 

major new technologies have been 

developed subsequent to the MACT 

standards. We believe that there are 

many VOC and PM sources that are well 

controlled because they are regulated by 

the MACT standards, which EPA 

developed under CAA section 112. For 

a few MACT standards, this may also be 

true for SO2. Any source subject to 

MACT standards must meet a level that 

is as stringent as the best-controlled 12 

percent of sources in the industry. 

Examples of these hazardous air 

pollutant sources which effectively 

control VOC and PM emissions include 

(among others) secondary lead facilities, 

organic chemical plants subject to the 

hazardous organic NESHAP (HON), 

pharmaceutical production facilities, 

and equipment leaks and wastewater 

operations at petroleum refineries. We 

believe that, in many cases, it will be 

unlikely that States will identify 

emission controls more stringent than 

the MACT standards without 

identifying control options that would 

cost many thousands of dollars per ton. 

Unless there are new technologies 

subsequent to the MACT standards 

which would lead to cost-effective 

increases in the level of control, you 

may rely on the MACT standards for 

purposes of BART. We believe that the 

same rationale also holds true for 

emissions standards developed for 

municipal waste incinerators under 

CAA section 111(d). 

Where you are relying on MACT 

standards to achieve a BART level of 

control, you must provide the public 

with a discussion of how you have 

reached the conclusion that it is 

appropriate to rely on MACT standards, 

and a discussion of whether any new 

technologies are available subsequent to 

the date the MACT standards were 

published. 

E. What Are the Five Basic Steps of a 

Case-by-Case BART Engineering 

Analysis? 

The five steps are: 

STEP 1—Identify All 7 Available Retrofit 

Control Technologies,

STEP 2— Eliminate Technically 

Infeasible Options, 

STEP 3— Rank Remaining Control 

Technologies By Control 

Effectiveness, 

STEP 4— Evaluate Impacts and 

Document the Results, and 

STEP 5—Evaluate Visibility Impacts. 

1. STEP 1: How do I Identify all 

Available Retrofit Emission Control 

Techniques? 

1. Available retrofit control options 

are those air pollution control 

technologies with a practical potential 

for application to the emissions unit and 

the regulated pollutant under 

evaluation. Air pollution control 

technologies can include a wide variety 

of available methods, systems, and 

techniques for control of the affected 

pollutant. Available air pollution 

control technologies can include 

technologies employed outside of the 

United States that have been 

successfully demonstrated in practice 

on full scale operations, particularly 

those that have been demonstrated as 

retrofits to existing sources. 

Technologies required as BACT or 

LAER are available for BART purposes 

and must be included as control 

alternatives. The control alternatives 

should include not only existing 

controls for the source category in 

question, but also take into account 

technology transfer of controls that have 

been applied to similar source 

categories and gas streams. 

Technologies which have not yet been 

applied to (or permitted for) full scale 

operations need not be considered as 

available; we do not expect the source 

owner to purchase or construct a 

process or control device that has not 

already been demonstrated in practice.

2. Where an NSPS exists for a source 

category (which is the case for most of 

the categories affected by BART), you 

should include a level of control 

equivalent to the NSPS as one of the 

control options.8 The NSPS standards 

are codified in 40 CFR part 60. We note 

that there are situations where NSPS 

standards do not require the most 

stringent level of available control for all 

sources within a category. For example, 

post-combustion NOX controls (the most 

stringent controls for stationary gas 

turbines) are not required under subpart 

GG of the NSPS for Stationary Gas 

Turbines. However, such controls must 

still be considered available 

technologies for the BART selection 

process.

3. Potentially applicable retrofit 

control alternatives can be categorized 

in three ways. 

• Pollution prevention: use of 

inherently lower-emitting processes/

practices, including the use of materials 

and production processes and work 

practices that prevent emissions and 

25220 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

9Because BART applies to existing sources, we 

recognize that there will probably be far fewer 

opportunities to consider inherently lower-emitting 

processes than may be available for NSR.

result in lower ‘‘production-specific’’

emissions, 

• Use of, (and where already in place, 

improvement in the performance of) 

add-on controls, such as scrubbers, 

fabric filters, thermal oxidizers and 

other devices that control and reduce 

emissions after they are produced, and 

• Combinations of inherently loweremitting processes and add-on controls. 

Example: for a gas-fired turbine, a 

combination of combustion controls (an 

inherently lower-emitting process) and 

post-combustion controls such as 

selective catalytic reduction (add-on) 

may be available to reduce NOX

emissions. 

4. For the engineering analysis, you 

should consider potentially applicable 

control techniques from all three 

categories. You should consider lowerpolluting processes based on 

demonstrations from facilities 

manufacturing identical or similar 

products using identical or similar raw 

materials or fuels. Add-on controls, on 

the other hand, should be considered 

based on the physical and chemical 

characteristics of the pollutant-bearing 

emission stream. Thus, candidate addon controls may have been applied to a 

broad range of emission unit types that 

are similar, insofar as emissions 

characteristics, to the emissions unit 

undergoing BART review. 

5. In the course of the BART 

engineering analysis, one or more of the 

available control options may be 

eliminated from consideration because 

they are demonstrated to be technically 

infeasible or to have unacceptable 

energy, cost, or non-air quality 

environmental impacts on a case-bycase (or site-specific) basis. However, at 

the outset, you should initially identify 

all control options with potential 

application to the emissions unit under 

review. 

6. We do not consider BART as a 

requirement to redesign the source 

when considering available control 

alternatives. For example, where the 

source subject to BART is a coal-fired 

electric generator, we do not require the 

BART analysis to consider building a 

natural gas-fired electric turbine 

although the turbine may be inherently 

less polluting on a per unit basis. 

7. In some cases, retrofit design 

changes may be available for making a 

given production process or emissions 

unit inherently less polluting.9

(Example: use of low NOX burners). In 

such cases, the ability of design 

considerations to make the process 

inherently less polluting must be 

considered as a control alternative for 

the source.

8. Combinations of inherently lowerpolluting processes/practices (or a 

process made to be inherently less 

polluting) and add-on controls could 

possibly yield more effective means of 

emissions control than either approach 

alone. Therefore, the option to use an 

inherently lower-polluting process does 

not, in and of itself, mean that no 

additional add-on controls need to be 

included in the BART analysis. These 

combinations should be identified in 

Step 1 for evaluation in subsequent 

steps. (Example: use of low NOX burner 

and add-on SCR for NOX control). 

9. For emission units subject to a 

BART engineering review, there will 

often be control measures or devices 

already in place. For such emission 

units, it is important to include control 

options that involve improvements to 

existing controls, and not to limit the 

control options only to those measures 

that involve a complete replacement of 

control devices.

Example: For a power plant with an 

existing wet scrubber, the current control 

efficiency is 66 percent. Part of the reason for 

the relatively low control efficiency is that 22 

percent of the gas stream bypasses the 

scrubber. An engineering review identifies 

options for improving the performance of the 

wet scrubber by redesigning the internal 

components of the scrubber and by 

eliminating or reducing the percentage of the 

gas stream that bypasses the scrubber. Four 

control options are identified: (1) 78 percent 

control based upon improved scrubber 

performance while maintaining the 22 

percent bypass, (2) 83 percent control based 

upon improved scrubber performance while 

reducing the bypass to 15 percent, (3) 93 

percent control based upon improving the 

scrubber performance while eliminating the 

bypass entirely, (this option results in a ‘‘wet 

stack’’ operation in which the gas leaving the 

stack is saturated with water) and (4) 93 

percent as in option 3, with the addition of 

an indirect reheat system to reheat the stack 

gas above the saturation temperature. You 

must consider each of these four options in 

a BART analysis for this source.

10. You are expected to identify all 

demonstrated and potentially applicable 

retrofit control technology alternatives. 

Examples of general information sources 

to consider include: 

• The EPA’s Clean Air Technology 

Center, which includes the RACT/

BACT/LAER Clearinghouse (RBLC); 

• State and Local Best Available 

Control Technology Guidelines—many 

agencies have online information—for 

example South Coast Air Quality 

Management District, Bay Area Air 

Quality Management District, and Texas 

Natural Resources Conservation 

Commission; 

• Control technology vendors; 

• Federal/State/Local NSR permits 

and associated inspection/performance 

test reports; 

• Environmental consultants; 

• Technical journals, reports and 

newsletters, air pollution control 

seminars; and 

• The EPA’s NSR bulletin board—

http://www.epa.gov/ttn/nsr;

• Department of Energy’s Clean Coal 

Program—technical reports; 

• The NOX Control Technology ‘‘Cost 

Tool’’—Clean Air Markets Division Web 

page—http://www.epa.gov/airmarkets/

arp/nox/controltech.html;

• Performance of selective catalytic 

reduction on coal-fired steam generating 

units—final report. OAR/ARD, June 

1997 (also available at http://

www.epa.gov/airmarkets/arp/nox/

controltech.html);

• Cost estimates for selected 

applications of NOX control 

technologies on stationary combustion 

boilers. OAR/ARD June 1997. (Docket 

for NOX SIP Call, A–96–56, item II–A–

03);

• Investigation of performance and 

cost of NOX controls as applied to group 

2 boilers. OAR/ARD, August 1996. 

(Docket for Phase II NOX rule, A–95–28, 

item IV–A–4); 

• Controlling SO2 Emissions: A 

Review of Technologies. EPA–600/R–

00–093, USEPA/ORD/NRMRL, October 

2000; and 

• The OAQPS Control Cost Manual. 

You should compile appropriate 

information from all available 

information sources, and you should 

ensure that the resulting list of control 

alternatives is complete and 

comprehensive. 

2. STEP 2: How Do I Determine Whether 

the Options Identified in Step 1 Are 

Technically Feasible? 

In Step 2, you evaluate the technical 

feasibility of the control options you 

identified in Step 1. You should clearly 

document a demonstration of technical 

infeasibility and should show, based on 

physical, chemical, and engineering 

principles, that technical difficulties 

would preclude the successful use of 

the control option on the emissions unit 

under review. You may then eliminate 

such technically infeasible control 

options from further consideration in 

the BART analysis. 

In General, What Do We Mean by 

Technical Feasibility? 

Control technologies are technically 

feasible if either (1) they have been 

installed and operated successfully for 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25221

the type of source under review, or (2) 

the technology could be applied to the 

source under review. Two key concepts 

are important in determining whether a 

technology could be applied: 

‘‘availability’’ and ‘‘applicability.’’ As 

explained in more detail below, a 

technology is considered ‘‘available’’ if 

the source owner may obtain it through 

commercial channels, or it is otherwise 

available within the common sense 

meaning of the term. An available 

technology is ‘‘applicable’’ if it can 

reasonably be installed and operated on 

the source type under consideration. A 

technology that is available and 

applicable is technically feasible. 

What Do We Mean by ‘‘Available’’

Technology? 

1. The typical stages for bringing a 

control technology concept to reality as 

a commercial product are:

• Concept stage; 

• research and patenting; 

• bench scale or laboratory testing; 

• pilot scale testing; 

• licensing and commercial 

demonstration; and 

• commercial sales.

2. A control technique is considered 

available, within the context presented 

above, if it has reached the licensing 

and commercial sales stage of 

development. Similarly, we do not 

expect a source owner to conduct 

extended trials to learn how to apply a 

technology on a totally new and 

dissimilar source type. Consequently, 

you would not consider technologies in 

the pilot scale testing stages of 

development as ‘‘available’’ for 

purposes of BART review. 

3. Commercial availability by itself, 

however, is not necessarily a sufficient 

basis for concluding a technology to be 

applicable and therefore technically 

feasible. Technical feasibility, as 

determined in Step 2, also means a 

control option may reasonably be 

deployed on or ‘‘applicable’’ to the 

source type under consideration. 

Because a new technology may 

become available at various points in 

time during the BART analysis process, 

we believe that guidelines are needed 

on when a technology must be 

considered. For example, a technology 

may become available during the public 

comment period on the State’s rule 

development process. Likewise, it is 

possible that new technologies may 

become available after the close of the 

State’s public comment period and 

before submittal of the SIP to EPA, or 

during EPA’s review process on the SIP 

submittal. In order to provide certainty 

in the process, we propose that all 

technologies be considered if available 

before the close of the State’s public 

comment period. You need not consider 

technologies that become available after 

this date. As part of your analysis, you 

should consider any technologies 

brought to your attention in public 

comments. If you disagree with public 

comments asserting that the technology 

is available, you should provide an 

explanation for the public record as to 

the basis for your conclusion. 

What Do We Mean by ‘‘Applicable’’

Technology? 

You need to exercise technical 

judgment in determining whether a 

control alternative is applicable to the 

source type under consideration. In 

general, a commercially available 

control option will be presumed 

applicable if it has been or is soon to be 

deployed (e.g., is specified in a permit) 

on the same or a similar source type. 

Absent a showing of this type, you 

evaluate technical feasibility by 

examining the physical and chemical 

characteristics of the pollutant-bearing 

gas stream, and comparing them to the 

gas stream characteristics of the source 

types to which the technology had been 

applied previously. Deployment of the 

control technology on a new or existing 

source with similar gas stream 

characteristics is generally a sufficient 

basis for concluding the technology is 

technically feasible barring a 

demonstration to the contrary as 

described below. What type of 

demonstration is required if I conclude 

that an option is not technically 

feasible?

1. Where you assert that a control 

option identified in Step 1 is technically 

infeasible, you should make a factual 

demonstration that the option is 

commercially unavailable, or that 

unusual circumstances preclude its 

application to a particular emission 

unit. Generally, such a demonstration 

involves an evaluation of the 

characteristics of the pollutant-bearing 

gas stream and the capabilities of the 

technology. Alternatively, a 

demonstration of technical infeasibility 

may involve a showing that there are 

unresolvable technical difficulties with 

applying the control to the source (e.g., 

size of the unit, location of the proposed 

site, or operating problems related to 

specific circumstances of the source). 

Where the resolution of technical 

difficulties is a matter of cost, you 

should consider the technology to be 

technically feasible. The cost of a 

control alternative is considered later in 

the process. 

2. The determination of technical 

feasibility is sometimes influenced by 

recent air quality permits. In some 

cases, an air quality permit may require 

a certain level of control, but the level 

of control in a permit is not expected to 

be achieved in practice (e.g., a source 

has received a permit but the project 

was canceled, or every operating source 

at that permitted level has been 

physically unable to achieve 

compliance with the limit). Where this 

is the case, you should provide 

supporting documentation showing why 

such limits are not technically feasible, 

and, therefore, why the level of control 

(but not necessarily the technology) may 

be eliminated from further 

consideration. However, if there is a 

permit requiring the application of a 

certain technology or emission limit to 

be achieved for such technology 

(especially as a retrofit for an existing 

emission unit), this usually is sufficient 

justification for you to assume the 

technical feasibility of that technology 

or emission limit. 

3. Physical modifications needed to 

resolve technical obstacles do not, in 

and of themselves, provide a 

justification for eliminating the control 

technique on the basis of technical 

infeasibility. However, you may 

consider the cost of such modifications 

in estimating costs. This, in turn, may 

form the basis for eliminating a control 

technology (see later discussion). 

4. Vendor guarantees may provide an 

indication of commercial availability 

and the technical feasibility of a control 

technique and could contribute to a 

determination of technical feasibility or 

technical infeasibility, depending on 

circumstances. However, we do not 

consider a vendor guarantee alone to be 

sufficient justification that a control 

option will work. Conversely, lack of a 

vendor guarantee by itself does not 

present sufficient justification that a 

control option or an emissions limit is 

technically infeasible. Generally, you 

should make decisions about technical 

feasibility based on chemical, and 

engineering analyses (as discussed 

above), in conjunction with information 

about vendor guarantees. 

5. A possible outcome of the BART 

procedures discussed in these 

guidelines is the evaluation of multiple 

control technology alternatives which 

result in essentially equivalent 

emissions. It is not our intent to 

encourage evaluation of unnecessarily 

large numbers of control alternatives for 

every emissions unit. Consequently, you 

should use judgment in deciding on 

those alternatives for which you will 

conduct the detailed impacts analysis 

(Step 4 below). For example, if two or 

more control techniques result in 

control levels that are essentially 

25222 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

identical, considering the uncertainties 

of emissions factors and other 

parameters pertinent to estimating 

performance, you may evaluate only the 

less costly of these options. You should 

narrow the scope of the BART analysis 

in this way, only if there is a negligible 

difference in emissions and energy and 

non-air quality environmental impacts 

between control alternatives. 

3. STEP 3: How Do I Develop a Ranking 

of the Technically Feasible 

Alternatives? 

Step 3 involves ranking all the 

technically feasible control alternatives 

identified in Step 2. For the pollutant 

and emissions unit under review, you 

rank the control alternatives from the 

most to the least effective in terms of 

emission reduction potential. 

Two key issues that must be 

addressed in this process include: 

(1) Making sure that you express the 

degree of control using a metric that 

ensures an ‘‘apples to apples’’

comparison of emissions performance 

levels among options, and 

(2) Giving appropriate treatment and 

consideration of control techniques that 

can operate over a wide range of 

emission performance levels. 

What Are the Appropriate Metrics for 

Comparison? 

This issue is especially important 

when you compare inherently lowerpolluting processes to one another or to 

add-on controls. In such cases, it is 

generally most effective to express 

emissions performance as an average 

steady state emissions level per unit of 

product produced or processed. 

Examples of common metrics: 

• Pounds of SO2 emissions per 

million Btu heat input, and 

• pounds of NOX emissions per ton of 

cement produced.

How Do I Evaluate Control Techniques 

With a Wide Range of Emission 

Performance Levels? 

1. Many control techniques, including 

both add-on controls and inherently 

lower polluting processes, can perform 

at a wide range of levels. Scrubbers and 

high and low efficiency electrostatic 

precipitators (ESPs) are two of the many 

examples of such control techniques 

that can perform at a wide range of 

levels. It is not our intent to require 

analysis of each possible level of 

efficiency for a control technique, as 

such an analysis would result in a large 

number of options. It is important, 

however, that in analyzing the 

technology you take into account the 

most stringent emission control level 

that the technology is capable of 

achieving. You should use the most 

recent regulatory decisions and 

performance data (e.g., manufacturer’s 

data, engineering estimates and the 

experience of other sources) to identify 

an emissions performance level or levels 

to evaluate. 

2. In assessing the capability of the 

control alternative, latitude exists to 

consider any special circumstances 

pertinent to the specific source under 

review, or regarding the prior 

application of the control alternative. 

However, you must document the basis 

for choosing the alternate level (or 

range) of control in the BART analysis. 

Without a showing of differences 

between the source and other sources 

that have achieved more stringent 

emissions limits, you should conclude 

that the level being achieved by those 

other sources is representative of the 

achievable level for the source being 

analyzed. 

3. You may encounter cases where 

you may wish to evaluate other levels of 

control in addition to the most stringent 

level for a given device. While you must 

consider the most stringent level as one 

of the control options, you may consider 

less stringent levels of control as 

additional options. This would be 

useful, particularly in cases where the 

selection of additional options would 

have widely varying costs and other 

impacts. 

4. Finally, we note that for retrofitting 

existing sources in addressing BART, 

you should consider ways to improve 

the performance of existing control 

devices, particularly when a control 

device is not achieving the level of 

control that other similar sources are 

achieving in practice with the same 

device. 

How Do I Rank the Control Options? 

After determining the emissions 

performance levels (using appropriate 

metrics of comparison) for each control 

technology option identified in Step 2, 

you establish a list that identifies the 

most stringent control technology 

option. Each other control option is then 

placed after this alternative in a ranking 

according to its respective emissions 

performance level, ranked from lowest 

emissions to highest emissions (most 

effective to least stringent effective 

emissions control alternative). You 

should do this for each pollutant and for 

each emissions unit (or grouping of 

similar units) subject to a BART 

analysis. 

4. STEP 4: For a BART Engineering 

Analysis, What Impacts Must I Calculate 

and Report? What Methods Does EPA 

Recommend for the Impacts Analysis? 

After you identify and rank the 

available and technically feasible 

control technology options, you must 

then conduct three types of impacts 

analyses when you make a BART 

determination:

Impact analysis part 1: costs of 

compliance, (taking into account the 

remaining useful life of the facility) 

Impact analysis part 2: energy impacts, 

and 

Impact analysis part 3: non-air quality 

environmental impacts. 

In this section, we describe how to 

conduct each of these three analyses. 

You are responsible for presenting an 

evaluation of each impact along with 

appropriate supporting information. 

You should discuss and, where 

possible, quantify both beneficial and 

adverse impacts. In general, the analysis 

should focus on the direct impact of the 

control alternative.

a. Impact Analysis Part 1: How Do I 

Estimate the Costs of Control? 

1. To conduct a cost analysis, you: (1) 

Identify the emissions units being 

controlled, (2) identify design 

parameters for emission controls, and 

(3) develop cost estimates based upon 

those design parameters. 

2. It is important to identify clearly 

the emission units being controlled, that 

is, to specify a well-defined area or 

process segment within the plant. In 

some cases, multiple emission units can 

be controlled jointly. However, in other 

cases, it may be appropriate in the cost 

analysis to consider whether multiple 

units will be required to install separate 

and/or different control devices. The 

engineering analysis should provide a 

clear summary list of equipment and the 

associated control costs. Inadequate 

documentation of the equipment whose 

emissions are being controlled is a 

potential cause for confusion in 

comparison of costs of the same controls 

applied to similar sources. 

3. You then specify the control system 

design parameters. Potential sources of 

these design parameters include 

equipment vendors, background 

information documents used to support 

NSPS development, control technique 

guidelines documents, cost manuals 

developed by EPA, control data in trade 

publications, and engineering and 

performance test data. The following are 

a few examples of design parameters for 

two example control measures:

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25223

10The Control Cost Manual is updated 

periodically. While this citation refers to the latest 

version at the time this guidance was written, you 

should use the version that is current as of when 

you conduct your impact analysis. This document 

is available at the following Web site: http://

www.epa.gov/ttn/catc/dir1/chpt2acr.pdf

11 You should include documentation for any 

additional information you used for the cost 

calculations, including any information supplied by 

vendors that affects your assumptions regarding 

purchased equipment costs, equipment life, 

replacement of major components, and any other 

element of the calculation that differs from the 

Control Cost Manual.

12The reason for the year 2007 is that the year 

2007 is the latest year for which a BART analysis 

will be conducted in order to be included in a 

regional haze SIP.

13Whenever you calculate or report annual costs, 

you should indicate the year for which the costs are 

estimated. For example, if you use the year 2000 as 

the basis for cost comparisons, you would report 

that an annualized cost of $20 million would be: 

$20 million (year 2000 dollars).

Control device Examples of design parameters 

Wet Scrubbers Type of sorbent used (lime, 

limestone, etc.) 

Gas pressure drop Liquid/

gas ratio 

Selective Catalytic Reduction.Ammonia to NOX molar ratio 

Pressure drop Catalyst life 

4. The value selected for the design 

parameter should ensure that the 

control option will achieve the level of 

emission control being evaluated. You 

should include in your analysis, 

documentation of your assumptions 

regarding design parameters. Examples 

of supporting references would include 

the Office of Air Quality Planning and 

Standards (OAQPS) Control Cost 

Manual (see below) and background 

information documents used for NSPS 

and hazardous pollutant emission 

standards. If the design parameters you 

specified differ from typical designs, 

you should document the difference by 

supplying performance test data for the 

control technology in question applied 

to the same source or a similar source. 

5. Once the control technology 

alternatives and achievable emissions 

performance levels have been identified, 

you then develop estimates of capital 

and annual costs. The basis for 

equipment cost estimates also should be 

documented, either with data supplied 

by an equipment vendor (i.e., budget 

estimates or bids) or by a referenced 

source (such as the OAQPS Control Cost 

Manual, Fifth Edition, February 1996, 

EPA 453/B–96–001).10 In order to 

maintain and improve consistency, cost 

estimates should be based on the EPA/

OAQPS Control Cost Manual, where 

possible.11 The Control Cost Manual

addresses most control technologies in 

sufficient detail for a BART analysis. 

While the types of site-specific analyses 

contained in the Control Cost Manual

are less precise than those based upon 

a detailed engineering design, normally 

the estimates provide results that are 

plus or minus 30 percent, which is 

generally sufficient for the BART 

review. The cost analysis should take 

into account site-specific conditions 

that are out of the ordinary (e.g., use of 

a more expensive fuel or additional 

waste disposal costs) that may affect the 

cost of a particular BART technology 

option.

b. How Do I Take Into Account a 

Project’s ‘‘Remaining Useful Life’’ In 

Calculating Control Costs? 

1. You treat the requirement to 

consider the source’s ‘‘remaining useful 

life’’ of the source for BART 

determinations as one element of the 

overall cost analysis. The ‘‘remaining 

useful life’’ of a source, if it represents 

a relatively short time period, may affect 

the annualized costs of retrofit controls. 

For example, the methods for 

calculating annualized costs in EPA’s 

Control Cost Manual require the use of 

a specified time period for amortization 

that varies based upon the type of 

control. If the remaining useful life will 

clearly exceed this time period, the 

remaining useful life has essentially no 

effect on control costs and on the BART 

determination process. Where the 

remaining useful life is less than the 

time period for amortizing costs, you 

should use this shorter time period in 

your cost calculations. 

2. For purposes of these guidelines, 

the remaining useful life is the 

difference between: 

(1) January 1 of the year you are 

conducting the BART analysis (but not 

later than January 1, 2007)12; and

(2) the date the facility permanently 

stops operations. Where this affects the 

BART determination, this date must be 

assured by a federally-enforceable 

restriction preventing further operation. 

A projected closure date, without such 

a federally-enforceable restriction, is not 

sufficient. 

3. We recognize that there may be 

situations where a source operator 

intends to shut down a source by a 

given date, but wishes to retain the 

flexibility to continue operating beyond 

that date in the event, for example, that 

market conditions change. Where this is 

the case, your BART analysis may 

account for this, but it must maintain 

consistency with the statutory 

requirement to install BART within 5 

years. Where the source chooses not to 

accept a federally enforceable condition 

requiring the source to shut down by a 

given date, it is necessary to determine 

whether a reduced time period for the 

remaining useful life changes the level 

of controls that would have been 

required as BART. If the reduced time 

period does change the level of BART 

controls, you may identify, and include 

as part of the BART emission limitation, 

the more stringent level of control that 

would be required as BART if there 

were no assumption that reduced the 

remaining useful life. You may 

incorporate into the BART emission 

limit this more stringent level, which 

would serve as a contingency should the 

source continue operating more than 5 

years after the date EPA approves the 

relevant SIP. The source would not be 

allowed to operate after the 5-year mark 

without such controls. If a source does 

operate after the 5-year mark without 

BART in place, the source is considered 

to be in violation of the BART emissions 

limit for each day of operation. 

c. What Do We Mean by Cost 

Effectiveness? 

Cost effectiveness, in general, is a 

criterion used to assess the potential for 

achieving an objective in the most 

economical way. For purposes of air 

pollutant analysis, ‘‘effectiveness’’ is 

measured in terms of tons of pollutant 

emissions removed, and ‘‘cost’’ is 

measured in terms of annualized control 

costs. We recommend two types of costeffectiveness calculations—average cost 

effectiveness, and incremental cost 

effectiveness. 

In the cost analysis, you should take 

care to not focus on incomplete results 

or partial calculations. For example, 

large capital costs for a control option 

alone would not preclude selection of a 

control measure if large emissions 

reductions are projected. In such a case, 

low or reasonable cost effectiveness 

numbers may validate the option as an 

appropriate BART alternative 

irrespective of the large capital costs. 

Similarly, projects with relatively low 

capital costs may not be cost effective if 

there are few emissions reduced. 

d. How Do I Calculate Average Cost 

Effectiveness? 

Average cost effectiveness means the 

total annualized costs of control divided 

by annual emissions reductions (the 

difference between baseline annual 

emissions and the estimate of emissions 

after controls), using the following 

formula:

Average cost effectiveness (dollars per 

ton removed) = Control option 

annualized cost 13 Baseline annual 

25224 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

emissions—Annual emissions with 

Control option

Because you calculate costs in 

(annualized) dollars per year ($/yr) and 

because you calculate emissions rates in 

tons per year (tons/yr), the result is an 

average cost-effectiveness number in 

(annualized) dollars per ton ($/ton) of 

pollutant removed. 

e. How Do I Calculate Baseline 

Emissions? 

1. The baseline emissions rate should 

represent a realistic depiction of 

anticipated annual emissions for the 

source. In general, for the existing 

sources subject to BART, you will 

estimate the anticipated annual 

emissions based upon actual emissions 

from a baseline period. 

2. When you project that future 

operating parameters (e.g., limited hours 

of operation or capacity utilization, type 

of fuel, raw materials or product mix or 

type) will differ from past practice, and 

if this projection has a deciding effect in 

the BART determination, then you must 

make these parameters or assumptions 

into enforceable limitations. In the 

absence of enforceable limitations, you 

calculate baseline emissions based upon 

continuation of past practice. 

3. For example, the baseline 

emissions calculation for an emergency 

standby generator may consider the fact 

that the source owner would not operate 

more than past practice of 2 weeks a 

year. On the other hand, baseline 

emissions associated with a base-loaded 

turbine should be based on its past 

practice which would indicate a large 

number of hours of operation. This 

produces a significantly higher level of 

baseline emissions than in the case of 

the emergency/standby unit and results 

in more cost-effective controls. As a 

consequence of the dissimilar baseline 

emissions, BART for the two cases 

could be very different. 

f. How Do I Calculate Incremental Cost 

Effectiveness? 

1. In addition to the average cost 

effectiveness of a control option, you 

should also calculate incremental cost 

effectiveness. You should consider the 

incremental cost effectiveness in 

combination with the total cost 

effectiveness in order to justify 

elimination of a control option. The 

incremental cost effectiveness 

calculation compares the costs and 

emissions performance level of a control 

option to those of the next most 

stringent option, as shown in the 

following formula:

Incremental Cost Effectiveness (dollars 

per incremental ton removed) = 

(Total annualized costs of control 

option)—(Total annualized costs of 

next control option) ÷ (Next control 

option annual emissions)—(Control 

option annual emissions)

Example 1: Assume that Option F on 

Figure 2 has total annualized costs of $1 

million to reduce 2000 tons of a pollutant, 

and that Option D on Figure 2 has total 

annualized costs of $500,000 to reduce 1000 

tons of the same pollutant. The incremental 

cost effectiveness of Option F relative to 

Option D is ($1 million—$500,000) divided 

by (2000 tons—1000 tons), or $500,000 

divided by 1000 tons, which is $500/ton.

Example 2: Assume that two control 

options exist: Option 1 and Option 2. Option 

1 achieves a 1,000 ton/yr reduction at an 

annual cost of $1,900,000. This represents an 

average cost of ($1,900,000/1,000 tons) = 

$1,900/ton. Option 2 achieves a 980 tons/yr 

reduction at an annual cost of $1,500,000. 

This represents an average cost of 

($1,500,000/980 tons) = $1,531/ton. The 

incremental cost effectiveness of Option 1 

relative to Option 2 is ($1,900,000—

$1,500,000) divided by (1,000 tons—980 

tons). The adoption of Option 1 instead of 

Option 2 results in an incremental emission 

reduction of 20 tons per year at an additional 

cost of $400,000 per year. The incremental 

cost of Option 1, then, is $20,000 per ton—

11 times the average cost of $1,900 per ton. 

While $1,900 per ton may still be deemed 

reasonable, it is useful to consider both the 

average and incremental cost in making an 

overall cost-effectiveness finding. Of course, 

there may be other differences between these 

options, such as, energy or water use, or nonair environmental effects, which also should 

be considered in selecting a BART 

technology.

2. You should exercise care in 

deriving incremental costs of candidate 

control options. Incremental costeffectiveness comparisons should focus 

on annualized cost and emission 

reduction differences between 

‘‘dominant’’ alternatives. To identify 

dominant alternatives, you generate a 

graphical plot of total annualized costs 

for total emissions reductions for all 

control alternatives identified in the 

BART analysis, and by identifying a 

‘‘least-cost envelope’’ as shown in 

Figure 2. (A ‘‘least-cost envelope’’

represents the set of options that should 

be dominant in the choice of a specific 

option.) 

BILLING CODE 6560–50–P

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25225

BILLING CODE 6560–50–C

Figure 2. Least-Cost Envelope

Example: Eight technically feasible control 

options for analysis are listed in the BART 

ranking. These are represented as A through 

H in Figure 2. The dominant set of control 

options, B, D, F, G, and H, represent the leastcost envelope, as we depict by the cost curve 

connecting them. Points A, C and E are 

inferior options, and you should not use 

them in calculating incremental cost 

effectiveness. Points A, C and E represent 

inferior controls because B will buy more 

emissions reductions for less money than A; 

and similarly, D and F will buy more 

reductions for less money than C and E, 

respectively.

3. In calculating incremental costs, 

you: 

(1) Rank the control options in 

ascending order of annualized total 

costs, 

(2) Develop a graph of the most 

reasonable smooth curve of the control 

options, as shown in Figure 2. This is 

to show the ‘‘least-cost envelope’’

discussed above; and 

(3) Calculate the incremental cost 

effectiveness for each dominant option, 

which is the difference in total annual 

costs between that option and the next 

most stringent option, divided by the 

difference in emissions reductions 

between those two options. For 

example, using Figure 2, you would 

calculate incremental cost effectiveness 


EP05MY04.000</GPH>
25226 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

for the difference between options B and 

D, options D and F, options F and G, 

and options G and H. 

4. A comparison of incremental costs 

can also be useful in evaluating the 

viability of a specific control option 

over a range of efficiencies. For 

example, depending on the capital and 

operational cost of a control device, 

total and incremental cost may vary 

significantly (either increasing or 

decreasing) over the operational range of 

a control device. Also, the greater the 

number of possible control options that 

exist, the more weight should be given 

to the incremental costs vs. average 

costs. 

5. In addition, when you evaluate the 

average or incremental cost 

effectiveness of a control alternative, 

you should make reasonable and 

supportable assumptions regarding 

control efficiencies. An unrealistically 

low assessment of the emission 

reduction potential of a certain 

technology could result in inflated costeffectiveness figures. 

g. What Other Information Should I 

Provide in the Cost Impacts Analysis? 

You should provide documentation of 

any unusual circumstances that exist for 

the source that would lead to costeffectiveness estimates that would 

exceed that for recent retrofits. This is 

especially important in cases where 

recent retrofits have cost-effectiveness 

values that are within what has been 

considered a reasonable range, but your 

analysis concludes that costs for the 

source being analyzed are not 

considered reasonable. (A reasonable 

range would be a range that is consistent 

with the range of cost effectiveness 

values used in other similar permit 

decisions over a period of time.)

Example: In an arid region, large amounts 

of water are needed for a scrubbing system. 

Acquiring water from a distant location could 

greatly increase the cost effectiveness of wet 

scrubbing as a control option.

h. Impact Analysis Part 2: How Should 

I Analyze and Report Energy Impacts? 

1. You should examine the energy 

requirements of the control technology 

and determine whether the use of that 

technology results in any significant or 

unusual energy penalties or benefits. A 

source owner may, for example, benefit 

from the combustion of a concentrated 

gas stream rich in volatile organic 

compounds; on the other hand, more 

often extra fuel or electricity is required 

to power a control device or incinerate 

a dilute gas stream. If such benefits or 

penalties exist, they should be 

quantified and included in the cost 

analysis. Because energy penalties or 

benefits can usually be quantified in 

terms of additional cost or income to the 

source, the energy impacts analysis can, 

in most cases, simply be factored into 

the cost impacts analysis. However, 

certain types of control technologies 

have inherent energy penalties 

associated with their use. While you 

should quantify these penalties, so long 

as they are within the normal range for 

the technology in question, you should 

not consider such penalties to be an 

adequate justification for eliminating 

that technology from consideration. 

2. Your energy impact analysis should 

consider only direct energy 

consumption and not indirect energy 

impacts. For example, you could 

estimate the direct energy impacts of the 

control alternative in units of energy 

consumption at the source (e.g., BTU, 

kWh, barrels of oil, tons of coal). The 

energy requirements of the control 

options should be shown in terms of 

total (and in certain cases, also 

incremental) energy costs per ton of 

pollutant removed. You can then 

convert these units into dollar costs and, 

where appropriate, factor these costs 

into the control cost analysis.

3. You generally do not consider 

indirect energy impacts (such as energy 

to produce raw materials for 

construction of control equipment). 

However, if you determine, either 

independently or based on a showing by 

the source owner, that the indirect 

energy impact is unusual or significant 

and that the impact can be well 

quantified, you may consider the 

indirect impact. 

4. The energy impact analysis may 

also address concerns over the use of 

locally scarce fuels. The designation of 

a scarce fuel may vary from region to 

region. However, in general, a scarce 

fuel is one which is in short supply 

locally and can be better used for 

alternative purposes, or one which may 

not be reasonably available to the source 

either at the present time or in the near 

future. 

5. Finally, the energy impacts analysis 

may consider whether there are relative 

differences between alternatives 

regarding the use of locally or regionally 

available coal, and whether a given 

alternative would result in significant 

economic disruption or unemployment. 

For example, where two options are 

equally cost effective and achieve 

equivalent or similar emissions 

reductions, one option may be preferred 

if the other alternative results in 

significant disruption or 

unemployment. 

i. Impact Analysis Part 3: How Do I 

Analyze ‘‘Non-Air Quality 

Environmental Impacts?’

1. In the non-air quality related 

environmental impacts portion of the 

BART analysis, you address 

environmental impacts other than air 

quality due to emissions of the pollutant 

in question. Such environmental 

impacts include solid or hazardous 

waste generation and discharges of 

polluted water from a control device. 

2. You should identify any significant 

or unusual environmental impacts 

associated with a control alternative that 

have the potential to affect the selection 

or elimination of a control alternative. 

Some control technologies may have 

potentially significant secondary 

environmental impacts. Scrubber 

effluent, for example, may affect water 

quality and land use. Alternatively, 

water availability may affect the 

feasibility and costs of wet scrubbers. 

Other examples of secondary 

environmental impacts could include 

hazardous waste discharges, such as 

spent catalysts or contaminated carbon. 

Generally, these types of environmental 

concerns become important when 

sensitive site-specific receptors exist or 

when the incremental emissions 

reductions potential of the more 

stringent control is only marginally 

greater than the next most-effective 

option. However, the fact that a control 

device creates liquid and solid waste 

that must be disposed of does not 

necessarily argue against selection of 

that technology as BART, particularly if 

the control device has been applied to 

similar facilities elsewhere and the solid 

or liquid waste is similar to those other 

applications. On the other hand, where 

you or the source owner can show that 

unusual circumstances at the proposed 

facility create greater problems than 

experienced elsewhere, this may 

provide a basis for the elimination of 

that control alternative as BART. 

3. The procedure for conducting an 

analysis of non-air quality 

environmental impacts should be made 

based on a consideration of site-specific 

circumstances. It is not necessary to 

perform this analysis of environmental 

impacts for the entire list of 

technologies you ranked in Step 3, if 

you propose to adopt the most stringent 

alternative. In general, the analysis need 

only address those control alternatives 

with any significant or unusual 

environmental impacts that have the 

potential to affect the selection of a 

control alternative, or elimination of a 

more stringent control alternative. Thus, 

any important relative environmental 

impacts (both positive and negative) of

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25227

alternatives can be compared with each 

other.

4. In general, the analysis of impacts 

starts with the identification and 

quantification of the solid, liquid, and 

gaseous discharges from the control 

device or devices under review. 

Initially, you should perform a 

qualitative or semi-quantitative 

screening to narrow the analysis to 

discharges with potential for causing 

adverse environmental effects. Next, 

you should assess the mass and 

composition of any such discharges and 

quantify them to the extent possible, 

based on readily-available information. 

You should also assemble pertinent 

information about the public or 

environmental consequences of 

releasing these materials. 

j. What Are Examples of Non-Air 

Quality Environmental Impacts? 

The following are examples of how to 

conduct non-air quality environmental 

impacts: 

(1) Water Impact 

You should identify the relative 

quantities of water used and water 

pollutants produced and discharged as 

a result of the use of each alternative 

emission control system relative to the 

most stringent alternative. Where 

possible, you should assess the effect on 

ground water and such local surface 

water quality parameters as ph, 

turbidity, dissolved oxygen, salinity, 

toxic chemical levels, temperature, and 

any other important considerations. The 

analysis should consider whether 

applicable water quality standards will 

be met and the availability and 

effectiveness of various techniques to 

reduce potential adverse effects. 

(2) Solid Waste Disposal Impact 

You should compare the quality and 

quantity of solid waste (e.g., sludges, 

solids) that must be stored and disposed 

of or recycled as a result of the 

application of each alternative emission 

control system with the quality and 

quantity of wastes created with the most 

stringent emission control system. You 

should consider the composition and 

various other characteristics of the solid 

waste (such as permeability, water 

retention, rewatering of dried material, 

compression strength, leachability of 

dissolved ions, bulk density, ability to 

support vegetation growth and 

hazardous characteristics) which are 

significant with regard to potential 

surface water pollution or transport into 

and contamination of subsurface waters 

or aquifers. 

(3) Irreversible or Irretrievable 

Commitment of Resources 

You may consider the extent to which 

the alternative emission control systems 

may involve a trade-off between shortterm environmental gains at the expense 

of long-term environmental losses and 

the extent to which the alternative 

systems may result in irreversible or 

irretrievable commitment of resources 

(for example, use of scarce water 

resources). 

(4) Other Adverse Environmental 

Impacts 

You may consider significant 

differences in noise levels, radiant heat, 

or dissipated static electrical energy. 

Other examples of non-air quality 

environmental impacts would include 

hazardous waste discharges such as 

spent catalysts or contaminated carbon. 

Generally, these types of environmental 

concerns become important when the 

plant is located in an area that is 

particularly sensitive to environmental 

degradation and when the incremental 

emissions reductions potential of the 

most stringent control option is only 

marginally greater than the next mosteffective option, but the environmental 

impact is of greater concern. 

(5) Benefits to the Environment 

It is important to consider relative 

differences between options regarding 

their beneficial impacts to non-air 

quality-related environmental media. 

For example, you may consider whether 

a given control option results in less 

deposition of pollutants, in particular 

nitrogen compounds, to nearby sensitive 

water bodies (lakes, rivers, coastal 

waters). You may also consider effects 

which may be unique to high elevation 

ecosystems. In some eastern Class I 

areas with elevations above 1000 

meters, there may be direct deposition 

of acid and nitrogen compounds on 

vegetation and soil from cloud impacts. 

Growth rates and competition between 

alien and native species might be 

affected by pollution loadings as well. 

As part of the consultation requirement 

between States and the Federal Land 

Managers in 40 CFR 51.308(i)(2), we 

expect the Federal Land Managers to 

provide information on non-air quality 

indicators to be considered in 

determining BART and other 

implementation strategies. The States 

should also consider such information 

available from other sources, such as 

public comments.

5. Step 5: How Should I Determine 

Visibility Impacts in the BART 

Determination? 

The following is the approach to 

determine visibility impacts (the degree 

of visibility improvement for each 

source subject to BART) in the BART 

determination. You may elect to 

conduct the modeling or require the 

source to conduct the modeling. If 

modeling is to be conducted for 

receptors greater than 200 km from the 

emission unit, a modeling protocol is 

required. If the source is conducting the 

modeling, you should review and 

approve or disapprove of the source’s 

analysis. Note that distances from the 

actual BART-eligible emission unit that 

is modeled to each Class I area should 

be measured from the nearest point in 

the Class I area. All receptors in the 

Class I area should be analyzed. The 

State should bear in mind that, for 

sources 50 km from a Class I area, some 

receptors within that Class I area may be 

less than 50 km from the source while 

other receptors within that same Class I 

area may be greater than 50 km from the 

same source; this situation may result in 

two different modeling approaches for 

the same Class I area and source, 

depending upon the State’s chosen 

method for modeling sources less than 

50 km. 

1. For receptors in the Class I area that 

are greater than or equal to 50 km from 

the emission unit: 

(1) Run CALPUFF, at pre-control 

allowable emission rates and postcontrol allowable emission rates. 

For CALPUFF setup (meteorological 

data and parameter settings), we 

recommend following EPA’s 

Interagency Workgroup on Air Quality 

Modeling (IWAQM) Phase 2 Summary 

Report and Recommendations for 

Modeling Long Range Transport 

Impacts. Choose an emission control 

level representing the most stringent 

control option available for the postcontrol scenario. 

(2) Tabulate Results; 

(i) Calculate 24-hr values for each 

receptor as the change in deciviews 

compared against natural visibility 

conditions (conditions that are 

estimated to exist in a given Class I area 

in the absence of human-caused 

impairment). Tabulate pre-control and 

post-control results. 

(b) Make the net visibility 

improvement determination: 

(i) Assess the visibility improvement 

based on the change in visibility impact 

of the average 20% worst modeled days 

between the pre-control and postcontrol emission rates. For example, if 

average impact from the 20% worst days 

25228 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

for a source’s pre-control emission rates 

for a particular receptor is a change of 

1.0 deciviews, and its post-control 

impact is 0.4 deciviews, the net 

visibility improvement is 0.6 deciviews 

(60%). All receptors in the Class I area 

should be analyzed. 

2. For sources that have not 

determined their degree of visibility 

improvement under 1. above and where 

all receptors at a Class I area are less 

than 50 km from the BART-eligible unit: 

(1) Estimate visibility impacts for precontrol and post-control emissions. Give 

consideration to CALPUFF or other 

EPA-approved methods or local scale 

models for determining visibility 

impacts for pre-controlled and postcontrolled emissions. 

(2) Estimate the degree of visibility 

improvement expected. 

Note that each of the modeling 

options may be supplemented with 

source apportionment data or source 

apportionment modeling that is 

acceptable to the State and the EPA 

regional office. 

F. How Do I Select the ‘‘Best’’

Alternative, Using the Results of Steps 1 

Through 5?

1. Summary of the Impacts Analysis 

From the alternatives you ranked in 

Step 3, you should develop a chart (or 

charts) displaying for each of the ranked 

alternatives: 

(1) Expected emission rate (tons per 

year, pounds per hour); 

(2) Emissions performance level (e.g., 

percent pollutant removed, emissions 

per unit product, lb/MMbtu, ppm); 

(3) Expected emissions reductions 

(tons per year); 

(4) Costs of compliance—total 

annualized costs ($), cost effectiveness 

($/ton), and incremental cost 

effectiveness ($/ton); 

(5) Energy impacts (indicate any 

significant energy benefits or 

disadvantages); 

(6) Non-air quality environmental 

impacts (includes any significant or 

unusual other media impacts, e.g., water 

or solid waste), both positive and 

negative; and 

(7) Modeled visibility impacts. 

2. Selecting a ‘‘Best’’ Alternative 

1. As discussed above, we are seeking 

comment on two alternative approaches 

for evaluating control options for BART. 

The first involves a sequential process 

for conducting the impacts analysis that 

begins with a complete evaluation of the 

most stringent control option. Under 

this approach, you determine that the 

most stringent alternative in the ranking 

does not impose unreasonable costs of 

compliance, taking into account both 

average and incremental costs, then the 

analysis begins with a presumption that 

this level is selected. You then proceed 

to considering whether energy and nonair quality environmental impacts 

would justify selection of an alternative 

control option. If there are no 

outstanding issues regarding energy and 

non-air quality environmental impacts, 

the analysis is ended and the most 

stringent alternative is identified as the 

‘‘best system of continuous emission 

reduction.’’

2. If you determine that the most 

stringent alternative is unacceptable due 

to such impacts, you need to document 

the rationale for this finding for the 

public record. Then, the next mosteffective alternative in the listing 

becomes the new control candidate and 

is similarly evaluated. This process 

continues until you identify a 

technology which does not pose 

unacceptable costs of compliance, 

energy and/or non-air quality 

environmental impacts. 

3. We also request comment on an 

alternative decision-making approach 

that would not begin with an evaluation 

of the most stringent control option. For 

example, you could choose to begin the 

BART determination process by 

evaluating the least stringent, 

technically feasible control option or by 

evaluating an intermediate control 

option drawn from the range of 

technically feasible control alternatives. 

Under this approach, you would then 

consider the additional emissions 

reductions, costs, and other effects (if 

any) of successively more stringent 

control options. Under such an 

approach, you would still be required to 

(1) display and rank all of the options 

in order of control effectiveness and to 

identify the average and incremental 

costs of each option; (2) consider the 

energy and non-air quality 

environmental impacts of each option; 

and (3) provide a justification for 

adopting the technology that you select 

as the ‘‘best’’ level of control, including 

an explanation as to why you rejected 

other more stringent control 

technologies. 

4. In the case where you are 

conducting a BART determination for 

two regulated pollutants on the same 

source, if the result is two different 

BART technologies that do not work 

well together, you could then substitute 

a different technology or combination of 

technologies, provided that they achieve 

at least the same emissions reductions 

for each pollutant. 

3. In Selecting a ‘‘Best’’ Alternative, 

Should I Consider the Affordability of 

Controls?

1. Even if the control technology is 

cost effective, there may be cases where 

the installation of controls would affect 

the viability of continued plant 

operations. 

2. As a general matter, for plants that 

are essentially uncontrolled at present, 

and emit at much greater levels per unit 

of production than other plants in the 

category, we are unlikely to accept as 

BART any analysis that preserves a 

source’s uncontrolled status. While this 

result may predict the shutdown of 

some facilities, we believe that the 

flexibility provided in the regional haze 

rule for an alternative reduction 

approach, such as an emissions trading 

program, will minimize the likelihood 

of forced shutdowns. 

3. Nonetheless, we recognize there 

may be unusual circumstances that 

justify taking into consideration the 

conditions of the plant and the 

economic effects of requiring the use of 

a given control technology. These effects 

would include effects on product prices, 

the market share, and profitability of the 

source. We do not intend, for example, 

that the most stringent alternative must 

always be selected, if that level would 

cause a plant to shut down, while a 

slightly lesser degree of control would 

not have this effect. Where there are 

such unusual circumstances that are 

judged to have a severe effect on plant 

operations, you may take into 

consideration the conditions of the 

plant and the economic effects of 

requiring the use of a control 

technology. Where these effects are 

judged to have a severe impact on plant 

operations you may consider them in 

the selection process, so long as you 

provide an economic analysis that 

demonstrates, in sufficient detail for a 

meaningful public review, the specific 

economic effects, parameters, and 

reasoning. (We recognize that this 

review process must preserve the 

confidentiality of sensitive business 

information). Any analysis should 

consider whether other competing 

plants in the same industry may also be 

required to install BART controls. 

4. Sulfur Dioxide Limits for Utility 

Boilers 

You must require 750 MW power 

plants to meet specific control levels of 

either 95% control, or controls in the 

range of .1 to .15 lbs/MMBtu, for each 

EGU greater than 250 MW, unless you 

determine that an alternative control 

level is clearly justified based on a 

careful consideration of the statutory 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25229

14We focus in this section on emission cap and 

trade programs which we believe will be the most 

common type of economic incentive program 

developed as an alternative to BART.

factors. Thus, for example, if the source 

convincingly demonstrates unique 

circumstances affecting its ability to 

cost-effectively reduce its emissions, 

you should take that into account in 

determining whether the presumptive 

levels of control are appropriate for that 

facility. For an EGU greater than 250 

MW in size, but located at a power plant 

smaller than 750 MW in size, you 

should similarly find that such controls 

are cost-effective as a general matter 

when taking into consideration the costs 

of compliance in your BART analysis. 

You should consider these control 

levels as the minimum that may be 

required. While these levels may 

represent current control capabilities, 

we expect that scrubber technology will 

continue to improve and control costs 

continue to decline. You should be sure 

to consider the level of control that is 

currently best achievable at the time 

that you are conducting your BART 

analysis. 

5. Nitrogen Oxide Limits for Utility 

Boilers 

You should establish specific 

numerical limits for NOX control for 

each BART determination. For sources 

currently using selective catalytic 

reduction (SCR) or selective noncatalytic reduction (SNCR) for part of 

the year, you should presume that use 

of those same controls year-round is 

highly cost-effective. 

For all other utility boilers, you 

should also presume that a NOX

emission limit of 0.2 lbs/MMBtu is costeffective. Most utility boilers can 

achieve a degree of removal of 0.2 lbs/

MMBtu with relatively inexpensive 

controls such as low NOX burners and 

combustion control. For those sources 

who cannot achieve this control level 

without SCR, you may find SCR to be 

appropriate if you finds visibility 

impacts that are of high enough concern 

to warrant the additional capital cost.

V. Enforceable Limits/Compliance Date 

To complete the BART process, you 

must establish enforceable emission 

limits and require compliance within a 

given period of time. In particular, you 

must establish an enforceable emission 

limit for each subject emission unit at 

the source and for each pollutant subject 

to review that is emitted from the 

source. In addition, you must require 

compliance with the BART emission 

limitations no later than 5 years after 

EPA approves your regional haze SIP. If 

technological or economic limitations in 

the application of a measurement 

methodology to a particular emission 

unit would make an emissions limit 

infeasible, you may prescribe a design, 

equipment, work practice, operation 

standard, or combination of these types 

of standards. You should ensure that 

any BART requirements are written in a 

way that clearly specifies the individual 

emission unit(s) subject to BART 

review. Because the BART requirements 

are ‘‘applicable’’ requirements of the 

CAA, they must be included as title V 

permit conditions according to the 

procedures established in 40 CFR part 

70 or 40 CFR part 71. 

Section 302(k) of the CAA requires 

emissions limits such as BART to be 

met on a continuous basis. Although 

this provision does not necessarily 

require the use of continuous emissions 

monitoring (CEMs), it is important that 

sources employ techniques that ensure 

compliance on a continuous basis. 

Monitoring requirements generally 

applicable to sources, including those 

that are subject to BART, are governed 

by other regulations. See, e.g., 40 CFR 

part 64 (compliance assurance 

monitoring); 40 CFR 70.6(a)(3) (periodic 

monitoring); 40 CFR 70.6(c)(1) 

(sufficiency monitoring). Note also that 

while we do not believe that CEMs 

would necessarily be required for all 

BART sources, the vast majority of 

electric generating units already employ 

CEM technology for other programs, 

such as the acid rain program. In 

addition, emissions limits must be 

enforceable as a practical matter 

(contain appropriate averaging times, 

compliance verification procedures and 

recordkeeping requirements). In light of 

the above, the permit must: 

• Be sufficient to show compliance or 

noncompliance (i.e., through monitoring 

times of operation, fuel input, or other 

indices of operating conditions and 

practices); and 

• Specify a reasonable averaging time 

consistent with established reference 

methods, contain reference methods for 

determining compliance, and provide 

for adequate reporting and 

recordkeeping so that air quality agency 

personnel can determine the 

compliance status of the source. 

VI. Emission Trading Program 

Overview 

40 CFR 51.308(e)(2) allows States the 

option of implementing an emissions 

trading program or other alternative 

measure instead of requiring BART. 

This option provides the opportunity for 

achieving better environmental results 

at a lower cost than under a source-bysource BART requirement. A trading 

program must include participation by 

BART sources, but may also include 

sources that are not subject to BART. 

The program would allow for 

implementation during the first 

implementation period of the regional 

haze rule (that is, by the year 2018) 

instead of the 5-year compliance period 

noted above. In this section of the 

guidance, we provide an overview of the 

steps in developing a trading program 14

consistent with 40 CFR 51.308(e)(2).

A. What Are the General Steps in 

Developing an Emission Trading 

Program? 

1. The basic steps are to: 

(1) Develop emission budgets; 

(2) Allocate emission allowances to 

individual sources; and 

(3) Develop a system for tracking 

individual source emissions and 

allowances. (For example, procedures 

for transactions, monitoring, compliance 

and other means of ensuring program 

accountability). 

2. A good example of an emissions 

trading program is the acid rain program 

under title IV of the CAA. The acid rain 

program is a national program—it 

establishes a national emissions cap, 

allocates allowances to individual 

sources, and allows trading of 

allowances between all covered sources 

in the United States. The Ozone 

Transport Commission’s NOX

Memorandum of Understanding, and 

the NOX SIP call both provide for 

regional trading programs. The recently 

proposed Interstate Air Quality Rule (69 

FR 4566, January 30, 2004) would 

establish statewide emissions budgets 

and allows for trading programs to 

achieve the budgets. Other trading 

programs generally have applied only to 

sources within a single State. In the 

proposed Interstate Air Quality rule 

(IAQR) (69 FR 4566, January 30, 2004), 

we requested comment on whether 

compliance with the IAQR by affected 

EGUs in affected States would satisfy, 

for those sources, the BART 

requirements of the CAA, provided that 

a State imposes the full amount of SO2 

and NOX emissions reductions on EGUs 

that the IAQR deemed highly cost 

effective. We are in the process of 

evaluating those comments. Based on 

our current evaluation, we believe the 

IAQR, as proposed, is clearly better than 

BART for those affected EGUs in the 

affected States which we propose to 

cover under the IAQR. We thus expect 

that the final IAQR would satisfy the 

BART requirements for affected EGUs 

that are covered pursuant to the final 

IAQR.

3. In creating a trading program as an 

alternative to source-specific BART, a 

25230 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

15An emission budget generally represents a total 

emission amount for a single pollutant such as SO2. 

As noted in the preamble to the regional haze rule 

(64 FR 35743, July 1, 1999) we believe that 

unresolved technical difficulties preclude interpollutant trading at this time.

16As required by 40 CFR 51.308(e)(2)(iii), 

emissions reductions must take place during the 

period of the first long-term strategy for regional 

haze. This means the reductions must take place no 

later than the year 2018.

State may wish to work with other 

States through a regional planning 

organization to develop a regional, 

multi-state program. Such a program 

would provide greater opportunities for 

emission trading. Coordination through 

the Regional Planning Organization 

(RPO) would ensure compatibility of the 

core elements of the trading program—

budgets, allocations, tracking, etc.—

between the SIPs and TIPs of 

participating States and Tribes. The 

WRAP has adopted such a regional 

market trading program as a backstop to 

its overall emission reduction program 

for SO2. Although regional trading 

programs require more interstate 

coordination, we have expertise that we 

can offer to States wishing to pursue 

such a program. 

B. What Are Emission Budgets and 

Allowances? 

An emissions budget is a limit, for a 

given source population, on the total 

emissions amount 15 that may be 

emitted by those sources over a State or 

region. An emission budget is also 

referred to as an ‘‘emission cap.’’

In general, the emission budget is 

subdivided into source-specific amounts 

that we refer to as ‘‘allowances.’’

Generally, each allowance equals one 

ton of emissions. Sources must hold 

allowances for all emissions of the 

pollutant covered by the program that 

they emit. Once you allocate the 

allowances, source owners have 

flexibility in determining how they will 

meet their emissions limit. Source 

owners have the options of: 

(1) Emitting at the level of allowances 

they are allocated (for example, by 

controlling emissions or curtailing 

operations), 

(2) Emitting at amounts less than the 

allowance level, thus freeing up 

allowances that may be used by other 

sources owned by the same owner, or 

sold to another source owner, or 

(3) Emitting at amounts greater than 

the allowance level, and purchasing 

allowances from other sources or using 

excess allowances from another plant 

under the same ownership. 

C. What Criteria Must Be Met in 

Developing an Emission Trading 

Program as an Alternative to BART? 

Under the regional haze rule, an 

emission trading program must achieve 

‘‘greater reasonable progress’’ (that is, 

greater visibility improvement) than 

would be achieved through the 

installation and operation of sourcespecific BART. The ‘‘greater reasonable 

progress’’ demonstration involves the 

following steps, which are discussed in 

more detail below: 

(1) Identify the sources that are 

subject to BART, 

(2) Calculate the emissions reductions 

that would be achieved if BART were 

installed and operated on sources 

subject to BART, 

(3) Demonstrate whether your 

emission budget achieves emission 

levels that are equivalent to or less than 

the emissions levels that would result if 

BART were installed and operated, 

(4) Analyze whether implementing a 

trading program in lieu of BART would 

likely lead to differences in the 

geographic distribution of emissions 

within a region, and 

(5) Demonstrate that the emission 

levels will achieve greater progress in 

visibility than would be achieved if 

BART were installed and operated on 

sources subject to BART. 

1. How Do I Identify Sources Subject to 

BART? 

For a trading program, you would 

identify sources subject to BART in the 

same way as we described in sections II 

and III of these guidelines. 

2. How Do I Calculate the Emissions 

Reductions That Would Be Achieved if 

BART Were Installed and Operated on 

These Sources? 

1. For a trading program under 

51.308(e)(2), you may identify these 

emissions reductions by: 

(1) Conducting a case-by-case analysis 

for each of the sources, using the 

procedures described above in these 

guidelines in sections II through V; 

(2) Conducting an analysis for each 

source category that takes into account 

the available technologies, the costs of 

compliance, the energy impacts, the 

non-air quality environmental impacts, 

the pollution control equipment in use, 

and the remaining useful life, on a 

category-wide basis; or 

(3) Conducting an analysis that 

combines considerations on both 

source-specific and category-wide 

information. 

2. For a category-wide analysis of 

available control options, you develop 

cost estimates and estimates of energy 

and non-air quality environmental 

impacts that you judge representative of 

the sources subject to BART for a source 

category as a whole, rather than analyze 

each source that is subject to BART. The 

basic steps of a category-wide analysis 

are the same as for a source-specific 

analysis. You identify technically 

feasible control options and rank them 

according to control stringency. Next, 

you calculate the costs and cost 

effectiveness for each control option, 

beginning with the most stringent 

option. Likely, the category-wide 

estimate will represent a range of cost 

and cost-effectiveness values rather than 

a single number. Next, you evaluate the 

expected energy and non-air quality 

impacts (both positive and negative 

impacts) to determine whether these 

impacts preclude selection of a given 

alternative.

3. We note that States and RPOs have 

the flexibility to adopt an approach to 

the category-wide analysis of BART that 

would involve the evaluation of 

different levels of BART control options 

(e.g., all measures less than $1000/ton 

vs. all measures less than $2000/ton vs. 

all measures less than $3000/ton) 

through an iterative process of assessing 

relative changes in cumulative visibility 

impairment. For example, States or 

regional planning organizations could 

use $1000 or $2000/ton as an initial 

cutoff for selecting reasonable control 

options. The States or regional planning 

organizations could then compare the 

across-the-board regional emissions and 

visibility changes resulting from the 

implementation of the initial control 

option and that resulting from the 

implementation of control options with 

a $3000/ton cutoff (or $1500/ton, etc). 

This approach would allow States and 

other stakeholders to understand the 

visibility differences among BART 

control options achieving less costeffective or more cost-effective levels of 

overall control. 

3. For a Cap and Trade Program, How 

Do I Demonstrate That My Emission 

Budget Results in Emission Levels That 

Are Equivalent To or Less Than the 

Emissions Levels That Would Result if 

BART Were Installed and Operated? 

Emissions budgets must address two 

criteria. First, you must develop an 

emissions budget for a future year 16

which ensures reductions in actual 

emissions that achieve greater 

reasonable visibility progress than 

BART. This will generally necessitate 

development of a ‘‘baseline forecast’’ of 

emissions for the population of sources 

included within the budget. A baseline 

forecast is a prediction of the future 

emissions for that source population in 

absence of either BART or the 

alternative trading program. Second, 

you must take into consideration the 

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 25231

17See 2002 Base Year Emission Inventory SIP 

Planning: 8-hr Ozone, PM2.5 and Regional Haze 

Programs. memorandum of November 18, 2002, 

from Lydia Wegman and Peter Tsirigotis. This 

document is available at the following Web site: 

http://www.epa.gov/ttn/oarpg/t1/memoranda/

2002bye_gm.pdf.

timing of the emission budget relative to 

the timetable for BART. If the 

implementation timetable for the 

emission trading program is a 

significantly longer period than the 5-

year time period for BART 

implementation, you should establish 

budgets for interim years that ensure 

steady and continuing progress in 

emissions reductions.

In evaluating whether the program 

milestone for the year 2018 provides for 

a BART-equivalent or better emission 

inventory total, you conduct the 

following steps: 

(1) Identify the source population 

included within the budget, which must 

include all BART sources and may 

include other sources, 

(2) For sources included within the 

budget, develop a base year 17 emissions 

inventory for stationary sources 

included within the budget, using the 

most current available emission 

inventory,

(3) Develop a future emissions 

inventory for the milestone year (in 

most cases, the year 2018), that is, an 

inventory of projected emissions for the 

milestone year in the absence of BART 

or a trading program, 

(4) Calculate the reductions from the 

forecasted emissions if BART were 

installed on all sources subject to BART, 

(5) Subtract this amount from the 

forecasted total, and 

(6) Compare the budget you have 

selected and confirm that it does not 

exceed this level of emissions.

Example: For a given region for which a 

budget is being developed for SO2, the most 

recent inventory is for the year 2002. The 

budget you propose for the trading program 

is 1.2 million tons. The projected emissions 

inventory total for the year 2018, using the 

year 2002 inventory and growth projections, 

is 4 million tons per year. Application of 

BART controls on the population of sources 

subject to BART would achieve 2.5 million 

tons per year of reductions. Subtracting this 

amount from the project inventory yields a 

value of 1.5 million tons. Because your 

selected budget of 1.2 million tons is less 

than this value, it achieves a better than a 

BART-equivalent emission total.

4. How Do I Ensure That Trading 

Budgets Achieve ‘‘Greater Reasonable 

Progress?’’

In some cases, you may be able to 

demonstrate that a trading program that 

achieves greater emissions progress may 

also achieve greater visibility progress 

without necessarily conducting a 

detailed dispersion modeling analysis. 

This could be done, for example, if you 

can demonstrate, using economic 

models, that the likely distribution of 

emissions when the trading program is 

implemented would not be significantly 

different than the distribution of 

emissions if BART was in place. If 

distribution of emissions is not 

substantially different than under 

BART, and greater emissions reductions 

are achieved, then the trading program 

would presumptively achieve ‘‘greater 

reasonable progress.’’

If the distribution of emissions is 

different under the two approaches, 

then the possibility exists that the 

trading program, even though it 

achieves greater emissions reductions, 

may not achieve better visibility 

improvement. Where this is the case, 

then you must conduct dispersion 

modeling to determine the visibility 

impact of the trading alternative. The 

dispersion modeling should determine 

differences in visibility between BART 

and the trading program for each 

impacted Class I area, for the worst and 

best 20 percent of days. The modeling 

should identify:

—The estimated difference in visibility 

conditions under the two approaches 

for each Class I area, 

—The average difference in visibility 

over all Class I areas impacted by the 

region’s emissions. [For example, if 

six Class I areas are in the region 

impacted, you would take the average 

of the improvement in deciviews over 

those six areas]. 

The modeling study would 

demonstrate ‘‘greater reasonable 

progress’’ if both of the following two 

criteria are met:

—Visibility does not decline in any 

Class I area, and 

—Overall improvement in visibility, 

determined by comparing the average 

differences over all affected Class I 

areas.

Example: Assume that ten Class I areas are 

affected. You would take the average 

deciview improvement from BART for each 

of the ten Class I areas—one value for each 

Class I area—and average them together. If 

the ten values are 2.5, 3.9, 4.1, 1.7, 3.3, 4.5, 

3.1, 3.6, 3.8 and 4.5, then the average 

deciview improvement from BART for the 

ten Class I areas is 3.5 deciviews. Therefore, 

the average of the ten deciview values for the 

trading program must be 3.5 deciviews or 

more.

5. How Do I Allocate Emissions to 

Sources? 

Emission allocations must be 

consistent with the overall budget that 

you provide to us. We believe it is not 

appropriate for us to require a particular 

process and criteria for individual 

source allocations, and thus we will not 

dictate how to allocate allowances. 

When developing an allocation 

methodology, the State or regional 

planning organization should consult 

with any Indian Tribes located within 

the trading area, regardless of whether 

BART-eligible sources are currently on 

Tribal lands. We will provide 

information on allocation processes to 

State, Tribal, and local agencies, and to 

RPOs. 

6. What Provisions Must I Include in 

Developing a System for Tracking 

Individual Source Emissions and 

Allowances? 

1. In general, we expect regional haze 

trading programs to contain the same 

degree of rigor as trading programs for 

criteria pollutants. In terms of ensuring 

the overall integrity and enforceability 

of a trading program, we expect that you 

will generally follow the guidance 

already being developed for other 

economic incentive programs (EIPs) in 

establishing a trading program for 

regional haze. In addition, we expect 

that any future trading programs 

developed by States and/or regional 

planning organizations will be 

developed in consultation with a broad 

range of stakeholders.

2. There are two EPA-administered 

emission trading programs that we 

believe provide good examples of the 

features of a well-run trading program. 

These two programs provide 

considerable information that would be 

useful to the development of regional 

haze trading programs as an alternative 

to BART. 

3. The first example is our acid rain 

program under title IV of the CAA. 

Phase I of the acid rain reduction 

program began in 1995. Under phase I, 

reductions in the overall SO2 emissions 

were required from large coal-burning 

boilers in 110 power plants in 21 

midwest, Appalachian, southeastern 

and northeastern States. Phase II of the 

acid rain program began in 2000, and 

required further reductions in the SO2

emissions from coal-burning power 

plants. Phase II also extended the 

program to cover other lesser-emitting 

sources. Allowance trading is the 

centerpiece of EPA’s acid rain program 

for SO2. You will find information on 

this program in: 

(1) Title IV of the CAA Amendments 

(1990), 

(2) 40 CFR part 73 at 58 FR 3687 

(January 1993), 

(3) EPA’s acid rain Web site, at 

www.epa.gov/acidrain/trading.html.

25232 Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Proposed Rules 

4. The second example is the rule for 

reducing regional transport of groundlevel ozone (NOX SIP Call). The NOX

SIP Call requires a number of eastern, 

midwestern, and southeastern States 

and the District of Columbia to submit 

SIPs that address the regional transport 

of ground-level ozone through 

reductions in NOX. States may meet the 

requirements of the rule by participating 

in an EPA-administered trading 

program. To participate in the program, 

the States must submit rules sufficiently 

similar to a model trading rule 

promulgated by the Agency (40 CFR 

part 96). More information on this 

program is available in: 

(1) The preamble and rule in the 

Federal Register at 63 FR 57356 

(October 1998), 

(2) The NOX compliance guide, 

available at www.epa.gov/acidrain/

modlrule/main.html#126,

(3) Fact sheets for the rule, available 

at www.epa.gov/ttn/rto/sip/

related.html#prop,

(4) Additional information available 

on EPA’s Web site, at www.epa.gov/

acidrain/modlrule/main.html.

5. A third program that provides a 

good example of trading programs is the 

Ozone Transport Commission (OTC) 

NOX budget program. The OTC NOX

budget program was created to reduce 

summertime NOX emissions in the 

northeast United States. The program 

caps NOX emissions for the affected 

States at less than half of the 1990 

baseline emission level of 490,000 tons, 

and uses trading to achieve costeffective compliance. For more 

information on the trading provisions of 

the program, see: 

(1) Memorandum of Understanding 

(MOU), available at www.sso.org/otc/

att2.HTM,

(2) Fact sheets available at 

www.sso.org/otc/Publications/

327facts.htm,

(3) Additional information, available 

at www.epa.gov/acidrain/otc/

otcmain.html.

6. We are including in the docket for 

this rulemaking a detailed presentation 

that has been used by EPA’s Clean Air 

Markets Division to explain the 

provisions of NOX trading programs 

with State and local officials. This 

presentation provides considerable 

information on EPA’s views on sound 

trading programs. 

7. We recognize that it is desirable to 

minimize administrative burdens for 

sources that may be subject to the 

provisions of several different emission 

trading programs. We believe that it is 

desirable for any emission trading 

program for BART to use existing 

tracking systems to the extent possible. 

We believe that any trading program 

established by States for BART should 

be fully consistent with the recently 

proposed NOX/SOX Transport rule. 

Should the transport rule not be in 

effect for the same time period or in the 

same States as any BART trading 

program, we recommend that States 

and/or regional planning organizations 

should conduct additional technical 

analyses to determine whether the time 

periods for tracking of allowances under 

other existing programs (i.e., annual 

allowances for SO2 for the acid rain 

program, and allowances for the ozone 

season for NOX) are appropriate for 

purposes of demonstrating greater 

reasonable regional progress vis a vis 

BART. Further, we recommend that you 

conduct any such analysis in 

conjunction with the timelines for 

development of SIPs for regional haze.

7. How Would a Regional Haze Trading 

Program Interface With the 

Requirements for ‘‘Reasonably 

Attributable’’ BART Under § 51.302 of 

the Regional Haze Rule? 

1. If a State elects to impose case-bycase BART emission limitations 

according to 40 CFR 51.308(e)(1) of the 

regional haze rule, then there should be 

no difficulties arising from the 

implementation of requirement for 

‘‘reasonably attributable’’ BART under 

40 CFR 51.302. However, if a State 

chooses an alternative measure, such as 

an emissions trading program, in lieu of 

requiring BART emissions limitation on 

specific sources, then the requirement 

for BART is not satisfied until 

alternative measures reduce emissions 

sufficient to make ‘‘more reasonable 

progress than BART.’’ Thus, in that 

period between implementation of an 

emissions trading program and the 

satisfaction of the overall BART 

requirement, an individual source could 

be required to install BART for 

reasonably attributable impairment 

under 40 CFR 51.302. Because such an 

overlay of the requirements under 40 

CFR 51.302 on a trading program under 

40 CFR 51.308 might affect the 

economic and other considerations that 

were used in developing the emissions 

trading program, the regional haze rule 

allows for a ‘‘geographic enhancement’’

under 40 CFR 51.308. This provision 

addresses the interface between a 

regional trading program and the 

requirement under 40 CFR 51.302 

regarding BART for reasonably 

attributable visibility impairment. (See 

40 CFR 51.308(e)(2)(v)). 

2. We recognize the desirability of 

addressing any such issues at the outset 

of developing an emissions trading 

program to address regional haze. We 

note that the WRAP, the planning 

organization for the nine western States 

considering a trading program under 40 

CFR 51.309 (which contains a similar 

geographic enhancement provision), has 

adopted policies which target use of the 

51.302 provisions by the Federal Land 

Managers (FLMs). In this case, for the 

nine WRAP States, the FLMs have 

agreed that they will certify reasonable 

attributable impairment only under 

certain specific conditions. Under this 

approach, the FLMs would certify under 

40 CFR 51.302 only if the regional 

trading program is not decreasing 

sulfate concentrations in a Class I area 

within the region. Moreover, the FLMs 

will certify impairment under 40 CFR 

51.302 only where: (1) BART-eligible 

sources are located ‘‘near’’ that class I 

area and (2) those sources have not 

implemented BART controls. In 

addition, the WRAP is investigating 

other procedures for States to follow in 

responding to a certification of 

‘‘reasonably attributable’’ impairment if 

an emissions trading approach is 

adopted to address the BART 

requirement based on the sources’

impact on regional haze. 

3. The specific pollutants and the 

magnitude of impacts under the regional 

haze rule and at specific Class I areas 

may vary in different regions of the 

country. We expect that each State 

through its associated regional planning 

organization will evaluate the need for 

geographic enhancement procedures 

within any adopted regional emissions 

trading program.

[FR Doc. 04–9863 Filed 5–4–04; 8:45 am] 

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