1 

### AGENDA
Discussion of the CSAPR Better-than-BART Rule February 29, 2012 10:00 – 11:00 AM (Eastern) 866-299-3188, conference code 919-541-5676#

Invited Participants

EPA

OGC Lea Anderson OAQPS Anna Wood

Rhea Jones Martha Keating

Todd Hawes Phil Lorang Region 5 George Czerniak John Mooney John Summerhays Pamela Blakley

Matthew Rau Region 9 Colleen McKaughan Region 10 Debra Suzuki,

Juliane Matthews Steve Body DOI

FWS Meredith Bond

Sandra Silva

Tim Allen NPS Carol McCoy

Pat Brewer Don Shepherd

John Vimont

Susan Johnson
USFS Anne Acheson

Bret Anderson

Agenda

1. Roll call 2. Agenda check 3. Explanation of attachments 4. FLM and EPA Goals for this hour and the later call with Janet McCabe (5 minutes) 5. FLM Perspectives and Discussion (40 minutes) A. Two prong test for “better-than-BART”

B. RAVI when a “better-than-BART” alternative is relied upon in a SIP/FIP C. Perspectives on other issues 6. EPA: Summary points in response (10 minutes) 7. Logistics for the call with Janet McCabe (5 minutes) 8. Docketing a record of this call2 Attachment 1



### Title 40: Protection of Environment

PART 51 REQUIREMENTS FOR PR EPARATION, ADOPTION, AND

SUBMITTAL OF IMPLEMENTATION PLANS Subpart P Protection of Visibility

§ 51.301 Definitions

Reasonably attributable visibility impairment means visibility impairment that is caused by the emission of air pollutants from one, or a small number of sources.

§ 52.302 Implementation control strate gies for reasonably attributable visibility impairment.

* * *

(c) General plan requirements for reasonabl y attributable visibi lity impairment.

(1) The affected Federal Land Manager may certify to the State, at any time, that there exists reasonably attributable impai rment of visibility in any mandatory

Class I Federal area.

(2) The plan must contain the followi ng to address reasonably attributable impairment:

(i) A long-term (10–15 y ears) strategy, as specified in §51.305 and §51.306, including such emission limitati ons, schedules of compliance, and such other measures including sc hedules for the implementation of the elements of the long-term strate gy as may be necessary to make reasonable progress toward the na tional goal specified in §51.300(a).

(ii) An assessment of visibility im pairment and a discussion of how each element of the plan relates to the preventing of future or remedying of existing impairment of visibility in any mandatory Class I Federal area

within the State.

(iii) Emission limitations representing BART and schedules for compliance with BART for each existi ng stationary faci lity identified according to paragraph (c)(4) of this section.

(3) The plan must require each source to maintain control equipment required by this subpart and establish pr ocedures to ensure such control equipment is properly operated and maintained.3 (4) For any existing reasonably attributable visibility impairment the Federal Land Manager certifies to the Stat e under paragraph (c)(1) of this section, at least 6 months prior to plan submission or revision:

(i) The State must identify and anal yze for BART each existing stationary facility which may reasonably be an ticipated to cause or contribute to impairment of visibility in any mand atory Class I Federal area where the impairment in the mandatory Class I Federal area is reasonably

attributable to that exis ting stationary facility. The State need not consider any integral vista the Federal Land Manager did not identify pursuant to §51.304(b) at least 6 months before plan submission.

(ii) If the State determines that technological or economic limitations on the applicability of measurement methodology to a particular existing stationary facility would make th e imposition of an emission standard infeasible it may instead prescribe a design, equipment, work practice, or other operational standard, or comb ination thereof, to require the application of BART. Such standard, to the degree po ssible, is to set forth the emission reduction to be achieved by implementation of such design, equipment, work practice or operatio n, and must provide for compliance by means which achieve equivalent results.

(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 Av ailable Retrofit Technology for Coalfired Power Plants and Other Existing Stationary Facilities” (1980), which is incorporated by reference, exclus ive of appendix E to the Guidelines, except that options more stringen t than NSPS must be considered. Establishing a BART em ission limitation equivalent to the NSPS level of

control is not a sufficient basis to av oid the analysis of control options required by the guidelines. This doc ument is EPA publication No. 450/3– 80–009b and has been approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. It is for sale from the U.S. Department of Commerce, National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161. It is also available for inspection from the

National Archives and Records Admi nistration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to: http://www.archives.gov/feder al_register/index.html.

(iv) The plan must require that each ex isting stationary facility required to install and operate BART do so as e xpeditiously as prac ticable but in no case later than five years after plan approval.4 (v) The plan must provide for a BART analysis of any existing stationary facility that might cause or contribute to impairment of visibility in any mandatory Class I Federal area identif ied under this para graph (c)(4) at such times, as determined by the Administrator, as new technology for control of the pollutant beco mes reasonably available if:

(A) The pollutant is emitted by that existing stationary facility,

(B) Controls representing BART for the pollutant have not previously been required under this subpart, and

(C) The impairment of visibility in any mandatory Class I Federal area is reasonably attr ibutable to the emissions of that pollutant.

§ 51.308 Regional haze program requirements.

(e) Best Available Retrofit Technology (BART) requirements for regional haze visibility impairment. The State must submit an implementation plan containing emission limitations representing BART and schedul es for compliance with BART for each BART-eligible source that may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandat ory Class I Federal ar ea, unless the State demonstrates that an emissions trading progr am or other alternative will achieve greater reasonable progress toward na tural visibility conditions.

* * *

(2) A State may opt to implement or require participation in an emissions trading program or other alternative measure rath er than to require sources subject to BART to install, operate, and mainta in BART. Such an emissions trading program or other alternative measure mu st achieve greater reasonable progress than would be achieved through the instal lation and operation of BART. For all such emission trading programs or other alternative measures, the State must submit an implementation plan contai ning the following plan elements and

include documentation for all required analyses:

* * * v) At the State's option, a provision th at the emissions trading program or other alternative measure may includ e a geographic enhancement to the program to address the requirement under §51.302(c) related to BART for reasonably attributable impairment from the pollutants covered under the emissions trading program or other alternative measure. [A provision specific to CAIR as an alternative pr ogram has the same wording as this general provision, as has also been proposed for CSAPR.]5 Attachment 2



### The rulemaking history of “a geogr aphic enhancement to the program to address the requirement under §51.302(c) related to BART for reasonably attributable impairment”

May 5, 2004 - Proposed text of 40 CFR 51 appendix Y (the BART guidelines document)

7. How Would a Regional Haze Trad ing Program Interface With the Requirements for ‘‘Reasonably Attri butable’’ BART Under § 51.302 of the Regional Haze Rule?

If a State elects to impose case-by-case 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 requi rement for ‘‘reasonably attributable’’ BART under 40 CFR 51.302. However, if a St ate chooses an alte rnative 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 betw een implementation of an emissions trading program and the satisfaction of the overall BART requirement, an individual source coul d 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 othe r considerations that were used in developing the emissions trading program, the regional haze rule allows for a ‘‘geographic enhancement’’ under 40 CF R 51.308. This provision addresses the interface between a regional trading program and the requirement under 40 CFR 51.302 regarding BART for reasonably attrib utable visibility impairment. (See 40 CFR 51.308(e)(2)(v)). (Emphasis added)

June 24, 2004 - SNPR for CAIR

As we explained in our recent reproposal of the BART guidelines (69 FR 25184, May 5, 2004), when a State utilizes an alte rnative measure such as an emissions trading program in lieu of requiring BART on specific sources, the requirement

for BART is not satisfied until the alternative measure reduces emissions sufficiently to make ‘‘more re asonable progress than BART.’’ Thus, in that period between implementation of an emissions trading program and the satisfaction of the overall BART requi rement, an individual source could be required to install BART for reasona bly attributable impairment under 40
CFR 51.302. The Regional Haze Rule cont ains a provision allowing for ‘‘geographic enhancements’’ to address th e interface between a regional trading program and the requirement under 40 CFR 51.302 regarding BART for6 reasonably attributable visibility im pairment. (See 40 CFR 51.308(e)(2)(v)). (Emphasis added)

* * *

We note that the same framework applie s in the context of the proposed CAIR cap-and-trade programs. That is, until the emission s reductions requirements in today’s SNPR are fully implemente d in 2015, the possibility exists that a certification of impairment by a Federal Land Manager (FLM) could trigger a requirement for a State to determine whether the impairment is ‘‘reasonably attributable’’ to a single so urce or small group of sources, and if so to make a source-specific BART determination. We request comments on whether a ‘‘geographic enhancement’’ (for example, an adjustment to the State’s allowance budget) would be appropria te, and whether such enhancement mechanisms should be determined by EPA on a national basis, or individually by affected States. (Emphasis added)

May 2005 - CAIR final rule

Moreover, as explained elsewhere in th e SNPR and again below, BART-eligible

EGUs would not be ‘‘exem pt’’ from BART because, until the emissions reductions required by the CAIR are fully realized , such sources would remain subject to the possibility of being required to install BART controls if deemed necessary to meet requirements regardi ng reasonably attri butable visibility impairment, as provided by 40 CFR 51.302. (70 FR 25301) (Emphasis added)

* * *

A few commenters believed that the CAIR should satisfy BART for purposes of reasonably attributable visibility impair ment as well as BART for purposes of regional haze. Several others commented that it was appropr iate or legally necessary to preserve the authority of Fe deral Land Managers (FLMs) and States to certify impairment and make reasona ble attribution dete rminations, which could subject a source to BART requirement s even if the source is a participant in the CAIR cap and trade program. These commenters supported the use of a strategy similar to that employed by the Western Regional Air Partnership, which relies upon a Memorandum Of Understanding (MOU) between the FLMs and the States regarding the criteria by which certi fications of impairment may be made, along with the possibility of ‘‘geographi c enhancements’’ to the cap and trade program to accommodate the imposition of source-specific BART control requirements on a source within the cap and trade program.

As proposed in the SNPR, EPA continues to believe that reasonably attributable visibility impairment determinations under 40 CFR 51.302 must continue to be a viable option in or der to insure against any possibility of hot-spots. We believe that a certification of reasonably attributable visibility7 impairment is fairly unlikely, given that there have been few such certifications since 1980, and given that the reductions from the CAIR and other recent initiatives will make such certifications decreasingly likely. We believe sources can be given sufficient regulatory certainty to enable effective participation in a cap and trade program through the use of MOUs and geographic enhancement provisions.

Some commenters believe that because s ection 169A(b)(2)(A) requires BART for an eligible source which may reasonably be anticipated to cause or contribute to any impairment of visibility in any Cla ss I area, EPA is without basis in law or regulation to base a better-than-BART determination on an analysis that does not evaluate visibility improvement at each a nd every Class I area, or one that uses averaging of visibility improveme nt across different Class I areas.

The criteria we applied in our present analysis—that greater reasonable progress is defined as no degradation at any Cl ass I area, and greater overall average improvement—have not been finalized. Ho wever, we disagree with comments that 169A(b)(2)’s requiremen t of BART for sources r easonably anticipated to contribute to impairment at any Class I ar ea 159 means that an alternative to the BART program must be shown to create improvement at each and every Class I

area. Even if a BART alternative is deemed to satisfy BART for regional haze purposes, based on average overall improvement as opposed to improvement at each and every Class I Area, 169A (b)(2)’s trigger fo r BART based on impairment at any Class I area rema ins in effect, because a source may become subject to BART based on ‘‘ reasonably attributable visibility impairment’’ at any area. (The EPA believes it is un likely that a State or FLM will have need to certify reasonably attr ibutable visibility impairment (RAVI) with respect to any EGU in the CAIR region, but neverthele ss believes it is necessary to preserve th is safeguard). 70 FR 25302

July 2005 - Final rule on the BART guidance

The final version of Appendix Y itself does not contain the specific question and answer about how a Regional Haze trading program interfaces with the requirements for ‘‘Reasonably Attributable’’ BART. This change from the proposed text of Appendix Y is not discussed in the preamble.

The preamble to the July 2005 rule does addr ess RAVI but does not mention the "until"

idea.

With respect to the use of average ov erall improvement, we explained in the CAIR NFR preamble that we disagr ee with comments that CAA section 169A(b)(2)’s requirement of BART for sources reasonably anticipated to contribute to impairment at any Class I area means that an alternative to the BART program must be shown to create improvement at each and every Class I

Area. Even if a BART alternative is d eemed to satisfy BART for regional8 haze purposes, based on average overall improvement as opposed to improvement at each and every Cl ass I Area, CAA section 169A(b)(2)’s trigger for BART based on impairment at any Class I area remains in effect, because a source may become subject to BART based on ‘‘reasonably attributable visibility impairment’’ at any area. See 40 CFR 51.302 . In addition, within a regional haze context, not every measure taken is required to achieve a visibility improvement at every class I area. BART is one component of long term strategies to make reasonable progress, but it is not the only component. The requirement that the alternative achieves greater progress based on the average improvement at all Class I areas assures that, by definition, the alternative will achieve greater progress overall. Though there may be cases where BART could produce greater improvement at one or more class I areas, the nodegradation prong assures that the alte rnative will not result in worsened conditions anywhere than would otherwise exist, and the possibi lity of BART for reasonably attributable visibility prot ects against any potential ‘‘hot spots.’’ Taken together, the EPA believes these f actors make a compelling case that the proposed test properly defines ‘‘great er reasonable progress.’’ The EPA anticipates that regional haze implementa tion plans will also contain measures addressing other sources as necessary to make progress at every mandatory
Federal Class I area. 70 FR 39137

* * *

We noted in the final CAIR preamble that although we believe it is unlikely that a State or FLM will find it necessary to cer tify reasonably attributable visibility impairment at any Class I area, as a legal matter that possibility exists. That is, the determination that CAIR makes greater reasonable progress th an BART is made in the context of BART for regi onal haze under CAA 169B, and does not preclude a finding of reasonably attri butable impairment under CAA 169A. The CAIR cap and trade program does not include geographic enhancements to accommodate the situation where BART is required based on reasonable attribution at a source which participat es in the trading program, but States
retain the discretion to include su ch enhancements in their SIPs. 70 FR

39143Re: Agenda and attachments : EPA-FLM conference call on the Better-than-BART rule, Wednesday, Feb. 29, 10 am Eastern

Patricia

_ F

_ Brewer to: Phil Lorang 02/28/2012 07:30 PM

Cc: "Acheson, Ann -FS", Lea Anderson, "Anderson, Bret A -FS", Pamela Blakley, Steve Body, Carol

_ McCoy, George Czerniak,

Don

_ Shepherd, Todd Hawes, John

_ Vimont, Rhea Jones, Martha History: This message has been replied to and forwarded.

Phil,

Major topic areas that we would like to discuss on call tomorrow:

1) Two prong test: we re-iterate that the two prong test should be conducted for each state's emissions and considering the visibility at those Class I areas affected by the state.

2) Remedies for states that could implement less controls under the Transport Rule than under BART: for states subject to Transport Rule for ozone only (OK, AR, LA, MS, FL) require year-round NOx controls for EGU for which ozone season
NOx controls could be used in lieu of BART. for states subject to Transport Rule for fine particle only (MN and NE) remove from Transport Rule or require state specific demonstration, potentially other boundary states that are benefiting from large emissions reductions in states farther to the east remove KS from Better than BART since SIP has already been approved and existing BART are at risk if Transport Rule is better than BART

3) RAVI certification is last resort for FLM. We request that clarification be added to the preamble. RAVI certification remains an option if RAVI still exists at any Class I area despite the adoption of a BART alternative for regional haze. Once a SIP is approved based on Transport Rule is better than BART, that does not constitute a BART determination for individual facilities affected by the SIP. A state should conduct a five factor analysis for a specific source when there is a large discrepancy in emissions between presumptive BART and controls under the Transport Rule. If FLM certifies RAVI, state has to follow requirements of Section

302.

FLM participants will be able to clarify intent of these bullets.

thanks, Pat Brewer

Pat Brewer National Park Service
Air Resource Division

303-969-2153

Phil Lorang<Lorang.Phil@epam ail.epa.gov> To
"Acheson, Ann -FS" 02/27/2012 05:47 <aacheson@fs.fed.us>, "Anderson,

PM Bret A -FS" <baanderson02@fs.fed.us>, Don_Shepherd@nps.gov, John_Vimont@nps.gov, meredith_bond@fws.gov, Patricia_F_Brewer@nps.gov, sandra_v_silva@fws.gov, Susan_Johnson@nps.gov, tim_allen@fws.gov, Carol_McCoy@nps.gov, Anna Wood <Wood.Anna@epamail.epa.gov>, George
Czerniak <Czerniak.George@epamail.epa.gov>, John Mooney <Mooney.John@epamail.epa.gov>, John Summerhays <Summerhays.John@epamail.epa.gov>,

Lea Anderson <anderson.lea@epamail.epa.gov>, Martha Keating <Keating.Martha@epamail.epa.gov>, Pamela Blakley <Blakley.Pamela@epamail.epa.gov>,

Rhea Jones <Jones.Rhea@epamail.epa.gov>, Todd Hawes <Hawes.Todd@epamail.epa.gov>, Colleen McKaughan <McKaughan.Colleen@epamail.epa.gov> , Debra Suzuki <Suzuki.Debra@epamail.epa.gov>,
Juliane Matthews <Matthews.Juliane@epamail.epa.gov>, Steve Body <Body.Steve@epamail.epa.gov>

cc

Subject Agenda and attachments: EPA-FLM

conference call on the Better-than-BART rule, Wednesday, Feb. 29, 10 am Eastern

We are looking forward to this opportunity to talk.
866-299-3188, conference code 919-541-5676# The conference line is also listed on the agenda.(See attached file: Agenda Call # 1 F LMs and EPA on Better

- t han-BART Rule.doc)

Phil Lorang, Senior Policy Advisor Air Quality Policy Division, OAQPS, EPA

919-541-5463

[attachment "Agenda Call #1 FLMs and EPA on Better-than-BART Rule.doc" deleted by Patricia F Brewer/DENVER/NPS]