38108 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 51

[FRL–6934–4]

Proposed Guidelines for Best

Available Retrofit Technology (BART)

Determinations Under the Regional

Haze Regulations

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The purpose of this proposal

is to request comment on EPA’s

proposed guidelines for implementation

of the best available retrofit technology

(BART) requirements under the regional

haze rule which was published on July

1, 1999 (64 FR 35714). We propose to

add the guidelines as appendix Y to 40

CFR part 51. We propose to add

regulatory text requiring that these

guidelines be used for addressing BART

determinations under the regional haze

rule. In addition, we are proposing one

revision to guidelines issued in 1980 for

facilities contributing to ‘‘reasonably

attributable’’ visibility impairment.

DATES: We are requesting written

comments by September 18, 2001. The

EPA has scheduled two public hearings

on this proposed rule. The first public

hearing will be held on August 21 in

Arlington, Virginia. The second public

hearing will be held on August 27 in

Chicago, Illinois. (See following section

for times and addresses.)

ADDRESSES: Docket. Information related

to the BART guidelines is available for

inspection at the Air and Radiation

Docket and Information Center, docket

number A–2000–28. The docket is

located at the U.S. Environmental

Protection Agency, 401 M Street, SW,

Room M–1500, Washington, DC 20460,

telephone (202) 260–7548. The docket is

available for public inspection and

copying between 8:00 a.m. and 5:30

p.m., Monday through Friday, excluding

legal holidays. A reasonable fee may be

charged for copying.

You should submit comments on

today’s proposal and the materials

referenced herein (in duplicate if

possible) to the Air and Radiation

Docket and Information Center (6102),

Attention: Docket No. A–2000–28, U.S.

Environmental Protection Agency, 1200

Pennsylvania Avenue, NW, Washington,

DC 20460. You may also submit

comments to EPA by electronic mail at

the following address: A-and-RDocket@epamail.epa.gov. Electronic

comments must be submitted as an

ASCII file avoiding the use of special

characters and any form of encryption.

All comments and data in electronic

form must be identified by the docket

number [A–2000–28]. Electronic

comments on this proposed rule also

may be filed online at many Federal

Depository Libraries.

Public Hearings. The first public

hearing on this proposed rule will be

held on August 21 at 10:00 am at the

Crowne Plaza Hotel, 1489 Jefferson

Davis Highway, Arlington, VA 22202.

The hotel is located near the Crystal

City metro stop. The second public

hearing will be held on August 27 at

10:00 am at the Metcalfe Federal

Building, Room 331, 77 West Jackson

Boulevard, Chicago, IL 60604.

If you wish to attend either public

hearing or wish to present oral

testimony, please send notification no

later than one week prior to the date of

the public hearing to Ms. Nancy Perry,

Office of Air Quality Planning and

Standards, Air Quality Strategies and

Standards Division, MD–15, Research

Triangle Park, NC 27711, telephone

(919) 541–5628, e-mail

perry.nancy@epa.gov.

Oral testimony will be limited to 5

minutes each. The hearing will be

strictly limited to the subject matter of

the proposal, the scope of which is

discussed below. Any member of the

public may file a written statement by

the close of the comment period.

Written statements (duplicate copies

preferred) should be submitted to

Docket No. A–2000–28 at the address

listed above for submitting comments.

The hearing schedule, including lists of

speakers, will be posted on EPA’s

webpage at http://www.epa.gov/air/

visibility/whatsnew.html. A verbatim

transcript of the hearings and written

statements will be made available for

copying during normal working hours at

the Air and Radiation Docket and

Information Center at the address listed

above.

FOR FURTHER INFORMATION CONTACT: Tim

Smith (telephone 919–541–4718), Mail

Drop 15, EPA, Air Quality Strategies

and Standards Division, Research

Triangle Park, North Carolina, 27711.

Internet address: smith.tim@epa.gov.

SUPPLEMENTARY INFORMATION: We are

providing the public with the

opportunity to comment on EPA’s

Proposed BART Guidelines and the

accompanying regulatory text.

Table of Contents

I. Background on BART Guidelines

A. Commitment in the Preamble to the

Regional Haze Rule

B. Statutory Requirement for BART

Guidelines

II. Proposed Amendments to Part 51

III. Revision to 1980 BART Guidelines for

‘‘Reasonably Attributable’’ Visibility

Impairment

IV. Administrative Requirements

A. Regulatory Planning and Review by the

Office of Management and Budget (OMB)

(Executive Order 12866)

B. Regulatory Flexibility Act

C. Paperwork Reduction Act—Impact on

Reporting Requirements

D. Unfunded Mandates Reform Act

E. Environmental Justice—Executive Order

12898

F. Protection of Children from

Environmental Health Risks and Safety

Risks—Executive Order 13045

G. Executive Order 13132: Federalism

H. Executive Order 13084: Consultation

and Coordination with Indian Tribal

Governments

I. National Technology Transfer and

Advancement Act

J. Executive Order 13211. Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use.

K. Guidelines for BART Determinations

Under the Regional Haze Rule

I. Background on BART Guidelines

A. Commitment in the Preamble to the

Regional Haze Rule

The EPA included in the final

regional haze rule a requirement for

BART for certain large stationary

sources put in place between 1962 and

1977. We discuss these requirements in

detail in the preamble to the final rule

(see 64 FR 35737–35743). The

regulatory requirements for BART are

codified in 40 CFR 51.308(e). In the

preamble, we committed to issuing

further guidelines to clarify the

requirements of the BART provision.

The purpose of this notice is to provide

the public with an opportunity to

comment on the draft guidelines and the

accompanying regulatory text.

B. Statutory Requirement for BART

Guidelines

Section 169A(b)(1) of the Clean Air

Act (CAA) requires EPA to provide

guidelines to States on the

implementation of the visibility

program. Moreover, the last sentence of

section 169A(b) states:

In the case of a fossil-fuel fired generating

powerplant having a capacity in excess of

750 megawatts, the emission limitations

required under this paragraph shall be

determined pursuant to guidelines,

promulgated by the Administrator under

paragraph (1)

We interpret this statutory requirement

as clearly requiring EPA to publish

BART guidelines and to require that

States follow the guidelines in

establishing BART emission limitations

for power plants with a total capacity

exceeding the 750 megawatt cutoff. The

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38109

1U.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).

statute is less clear regarding whether

the guidelines must be used for sources

other than 750 megawatt power plants;

however, today’s proposed rule would

require States to use the guidelines for

all of the 26 categories. We believe it is

reasonable that consistent, rigorous

approaches be used for all BART source

categories. In addition, we believe it is

important to provide for consistent

approaches to identifying the sources in

the remaining categories which are

BART-eligible. We request comment on

whether the regional haze rule should:

(1) Require use of the guidelines only

for 750 megawatt utilities, with the

guidelines applying as guidance for the

remaining categories, or (2)require use

of the guidelines for all of the affected

source categories.

II. Proposed Amendments to Part 51

We propose:

(1) BART guidelines, to be added as

appendix Y to 40 CFR part 51,

(2) regulatory text, to be added as subparagraph 51.308(e)(1)(C), requiring the

use of the guidelines.

Overview of Proposed Appendix Y

We discuss the following general

topics in appendix Y, which are

organized into the following sections:

—Introduction. Section I provides an

overview of the BART requirement in

the regional haze rule and in the CAA,

and an overview of the guidelines.

—Identification of BART-eligible

sources. Section II is a step-by-step

process for identifying BART-eligible

sources.

—Identification of sources subject to

BART. 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 proposed appendix Y.

—Engineering analysis. For each source

subject to BART, the next step is to

conduct an engineering 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 nonair quality environmental impacts,

taking into account the remaining

useful life and existing control

technology present at the source. For

each source, a ‘‘best system of

continuous emission reduction’’ is

selected based upon this engineering

analysis. Guidelines for the

engineering analysis are described in

section IV of the proposed appendix

Y.

—Cumulative air quality analysis. The

rule requires a cumulative analysis of

the degree of visibility improvement

that would be achieved in each Class

I area as a result of the emissions

reductions achievable from all sources

subject to BART. The establishment of

BART emission limits must take into

account the cumulative impact overall

from the emissions reductions from

all of the source-specific ‘‘best

technologies’’ identified in the

engineering analysis. Considerations

for this cumulative air quality

analysis are discussed in section V.

—Emission limits. Considering the

engineering analysis and the

cumulative air quality analysis, States

must establish enforceable limits,

including a deadline for compliance,

for each source subject to BART.

Considerations related to these limits

and deadlines are discussed in section

VI.

—Trading program alternative. General

guidance on how to develop an

emissions trading program alternative

to BART is contained in section VII of

the guidance. (Note that more

comprehensive guidance for emission

trading programs generally is

described in Section VII).

Regulatory Text

The proposed regulatory text would

require that States follow the guidelines

for all BART determinations required

under the regional haze rule. We request

public comment on all provisions of the

guidelines and on the accompanying

regulatory text.

III. Revision to 1980 BART Guidelines

for ‘‘Reasonably Attributable’’ Visibility

Impairment

As noted above, the primary purpose

of today’s proposed rule is to provide

BART guidelines for the regional haze

program. In addition, however, we are

making 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.1 The visibility regulations

require that States must use a 1980

guidelines document when conducting

BART analyses for certain power plants

for reasonably attributable visibility

impairment. The regulatory text for this

requirement is found in 40 CFR

51.302(c)(4)(iii), as follows:

(iii) BART must be determined for fossilfuel 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). 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. It is also

available for inspection at the Office of the

Federal Register Information Center, 800

North Capitol NW., suite 700, Washington,

DC.

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

new source performance standards

(NSPS) may be considered to represent

the maximum achievable 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), the

maximum achievable control levels for

recent plant retrofits have exceeded

NSPS levels. Thus, in order to ensure

that there is no confusion regarding how

the 1980 guidelines should be

interpreted, EPA has included the

following discussion in today’s action

and proposes limited clarifying changes

to the visibility regulations.

In various sections of the 1980

guideline, the discussion indicates that

the NSPS in 1980 was considered to

generally represent the most stringent

option these sources could install as

BART (i.e., maximum achievable level

of control). See, e.g., 1980 BART

Guidelines at pp. 8, 11 and 21. For

example, a flowchart in the 1980

guidelines indicates that if States

establish a BART emission limitation

equivalent to NSPS for the source, then

the State would not need to conduct a

full-blown analysis of control

alternatives. See, 1980 BART Guidelines

at p. 8. Similarly, the visibility analysis

described in the guideline assumes as a

starting point the level of controls

currently achieved by the NSPS. See,

1980 Guideline at p. 11. In the 20-year

period since these guidelines were

developed, there have been advances in

SO2 control technologies that have

significantly increased the level of

control that is feasible, while costs per

ton of SO2 controlled have declined.

38110 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

2U.S. Environmental Protection Agency,

Controlling SO2 Emissions: A Review of

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

Research and Development, National Risk

Management Research Laboratory, Research

Triangle Park, NC, October 2000, pp 32–34.

3Note also that part II of the 1980 BART

guidelines includes an analysis of 90 percent

control for three power plants burning low-sulfur

coal.

This is demonstrated by a number of

recent retrofits or binding agreements to

retrofit coal-fired power plants in the

western United States. These plants

include: Hayden (CO), Navajo (AZ),

Centralia (WA), and Mohave (NV).

These cases have shown that control

options exist which can achieve a

significantly greater degree of control

than the 70 percent minimum required

by the NSPS for power plants emitting

SO2 at less than 0.60 lb/million Btu heat

input. These retrofits have achieved, or

are expected to achieve, annual SO2

reductions in the 85 to 90 percent range.

Additionally, an EPA report 2 published

in October 2000 shows that the SO2

removal for flue gas desulfurization

systems installed in the 1990s is

commonly 90 percent or more for both

wet and dry scrubbers, well above the

minimum 70 percent control required

by the 1979 NSPS.3

Given the advances in control

technology that have occurred over the

past 20 years, we believe that it should

be made clear that the BART analyses

for reasonably attributable visibility

impairment should not be based on an

assumption that the NSPS level of

control represents the maximum

achievable level of control. While it is

possible that a detailed analysis of the

BART factors could result in the

selection of a NSPS level of control, we

believe that States should only reach

this conclusion based upon an analysis

of the full range of control options,

including those more stringent than a

NSPS level of control. In sum, all

‘‘reasonably attributable’’ BART

analyses should consider control levels

more stringent than NSPS, including

maximum achievable levels, and

evaluate them in light of the statutory

factors.

IV. Administrative Requirements

In preparing any proposed rule, EPA

must meet the administrative

requirements contained in a number of

statutes and executive orders. In this

section of the preamble, we discuss how

today’s regulatory proposal for BART

guidelines addresses these

administrative requirements.

A. Regulatory Planning and Review by

the Office of Management and Budget

(OMB) (Executive Order 12866)

Under Executive Order 12866 (58 FR

51735, October 4, 1993) the Agency

must determine whether the regulatory

action is ‘‘significant’’ and, therefore,

subject to 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’’ and EPA has submitted it to

OMB for review. The drafts of 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 A–2000–28).

Because today’s guidelines clarify,

and do not change, the existing rule

requirements of the regional haze rule,

the guidelines do not have any effect on

the Regulatory Impact Analysis (RIA)

that was previously prepared for the

regional haze rule. This RIA is available

in the docket for the regional haze rule

(A–95–38). As part of the analyses

included in this RIA, we provided an

estimate of the potential cost of control

to BART sources that is an average of

the costs associated with the least

stringent illustrative progress goal (1.0

deciview reduction over a 15-year

period) and the most stringent

illustrative progress goal (10 percent

deciview reduction over a 10-year

period). The annual cost of control to

BART sources associated with the final

Regional Haze rulemaking in 2015, the

year for which impacts are projected, is

$72 million (1990 dollars).

This estimate of the control costs for

BART sources for the year 2015 was

calculated after taking into account a

regulatory baseline projection for the

year 2015. The baseline for these

calculations included control measures

estimated to be needed for partial

attainment of the PM and ozone NAAQS

issued in 1997. These baseline estimates

were contained in an analysis prepared

for the RIA for the PM and ozone

NAAQS, and are summarized in the RIA

for the regional haze rulemaking. As a

result, in this RIA, we calculated

relatively small impacts for BART, in

part because the baseline for the

analysis assumed a substantial degree of

emissions control for BART-eligible

sources in response to the national

ambient air quality standards (NAAQS)

for PM2.5.

The EPA provided a benefits analysis

of the emissions reductions associated

with the four illustrative progress goals

in the RIA for the final rulemaking. This

benefits analysis is also incremental to

partial attainment of the PM and ozone

NAAQS issued in 1997. We did not,

however, include a benefits analysis for

the reductions from controls specific to

the potentially affected BART sources.

For more information on the benefit

analysis for the final Regional Haze

rulemaking, please refer to the RIA in

the public docket for the regional haze

rule (Docket A–95–38).

B. Regulatory Flexibility Act

The EPA has determined that it is not

necessary to prepare a regulatory

flexibility analysis in connection with

this proposed rule. The EPA has also

determined that this proposed rule

would not have a significant impact on

a substantial number of small entities

because the rule would not establish

requirements applicable to small

entities.

The Regulatory Flexibility Act (5

U.S.C. 601 et seq.) (RFA), as amended

by the Small Business Regulatory

Enforcement Fairness Act (Pub. L.

No.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

proposed 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.

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38111

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,

the proposed BART 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 proposed

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

provision.

For today’s proposed BART

guidelines, EPA certifies that the

guidelines and accompanying regulatory

text would not have a significant impact

on a substantial number of small

entities.

C. Paperwork Reduction Act—Impact on

Reporting Requirements

The information collection

requirements in today’s proposal clarify,

but do not modify, the information

collection requirements for BART.

Reporting requirements related to BART

requirements were included in an

Information Collection Request

document that was prepared by EPA

(ICR No. 1813.02) and a copy may be

obtained from Sandy Farmer, by mail at

Collection Strategies Division; U.S. EPA

(2822) 1200 Pennsylvania Avenue, NW.,

Washington, DC 20460, by email at

farmer.sandy@epa.gov, or by calling

(202) 260–2740. A copy may also be

downloaded off the Internet at http://

www.epa.gov/icr. The information

requirements are not effective until

OMB approves them.

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

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 are listed

in 40 CFR part 9 and 48 CFR chapter 15.

Comments are requested on the

Agency’s need for this information, the

accuracy of the provided burden

estimates, and any suggested methods

for minimizing respondent burden,

including through the use of automated

collection techniques. Send comments

on the ICR to the Director, Collection

Strategies Division; U.S. Environmental

Protection Agency (2822); 1200

Pennsylvania Ave., NW., Washington,

DC 20460; and to the Office of

Information and Regulatory Affairs,

Office of Management and Budget, 725

17th St., NW., Washington, DC 20503,

marked ‘‘Attention: Desk Officer for

EPA.’’ Include the ICR number in any

correspondence.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (Pub. L. 104–4)

(UMRA), 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 the 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’’

and a ‘‘Federal private sector 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),

except for, among other things, a duty

that is ‘‘a condition of Federal

assistance,’’ section 421(5)(A)(i)(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 the UMRA, section

205, 2 U.S.C. 1535, of the 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.

By proposing to release BART

guidelines and to require their use, 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 because

today’s proposal provides States with

substantial flexibility, the proposed rule

meets the UMRA requirement in section

205 to select the least costly and

burdensome alternative in light of the

statutory mandate for BART. The

proposed rule provides States with the

flexibility to establish BART based on

certain criteria, one of which is the costs

of compliance. The proposed rule also

provides States with the flexibility to

adopt alternatives, such as an emissions

trading program, in lieu of requiring

BART. The BART guidelines therefore,

inherently provides for adoption of the

least costly, most cost-effective, or leastburdensome alternative that achieves

the objective of the rule.

The EPA is not reaching a final

conclusion as to the applicability of the

requirements of UMRA to this

rulemaking action. It is questionable

whether a requirement to submit a State

Implementation Plan (SIP) revision

38112 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

constitutes a Federal mandate. The

obligation for a State to revise its SIP

that arises out of sections 110(a), 169A

and 169B of the CAA is not legally

enforceable by a court of law and, at

most, is a condition for continued

receipt of highway funds. Therefore, it

is possible to view an action requiring

such a submittal as not creating any

enforceable duty within the meaning of

section 421(5)(A)(i) of UMRA (2 U.S.C.

658 (5)(A)(i)). Even if it did, the duty

could be viewed as falling within the

exception for a condition of Federal

assistance under section 421(5)(A)(i)(I)

of UMRA (2 U.S.C. 658(5)(A)(i)(I)). As

noted earlier, however, notwithstanding

these issues, the discussion in section 2

and the analysis in chapter 8 of the RIA

constitutes the UMRA statement that

would be required by UMRA if its

statutory provisions applied, and EPA

has consulted with governmental

entities as would be required by UMRA.

Consequently, it is not necessary for

EPA to reach a conclusion as to the

applicability of the UMRA

requirements.

E. Environmental Justice—Executive

Order 12898

Executive Order 12898 requires that

each Federal agency make achieving

environmental justice part of its mission

by identifying and addressing, as

appropriate, disproportionately high

and adverse human health or

environmental effects of its programs,

policies, and activities on minorities

and low-income populations. The

requirements of Executive Order 12898

have been previously addressed to the

extent practicable in the RIA cited

above, particularly in chapters 2 and 9

of the RIA.

F. Protection of Children From

Environmental Health Risks and Safety

Risks—Executive Order 13045

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,

the Agency must 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 EPA

interprets Executive Order 13045 as

applying only to those regulatory

actions that are based on health or safety

risks, such that the analysis required

under section 5–501 of the Order has

the potential to influence the regulation.

The BART guidelines are not subject to

Executive Order 13045 because they do

not establish an environmental standard

intended to mitigate health or safety

risks.

G. 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.’’ ‘‘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 the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

The EPA concludes that this rule will

not have substantial federalism

implications, as specified in section 6 of

Executive Order 13132 (64 FR 43255,

August 10, 1999), because it will not

directly impose significant new

requirements on State and local

governments, nor substantially alter the

relationship or the distribution of power

and responsibilities between States and

the Federal government.

Although EPA has determined that

section 6 of Executive Order 13132 does

not apply, EPA nonetheless consulted

with a broad range of State and local

officials during the course of developing

this proposed rule. These included

contacts with 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.

H. Executive Order 13084: Consultation

and Coordination With Indian Tribal

Governments

On November 6, 2000, the President

issued Executive Order 13175 (65 FR

67249) entitled ‘‘Consultation and

Coordination with Indian Tribal

Governments.’’ Executive Order 13175

took effect on January 6, 2001, and

revokes Executive Order 13084 (Tribal

Consultation) as of that date. The EPA

developed this proposed rule, however,

during the period when EO 13084 was

in effect; thus, EPA addressed tribal

considerations under EO 13084. The

EPA will analyze and fully comply with

the requirements of EO 13175 before

promulgating the final rule.

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to OMB, in a

separately identified section of the

preamble to the rule, a description of

the extent of EPA’s prior consultation

with representatives of affected tribal

governments, a summary of the nature

of their concerns, and a statement

supporting the need to issue the

regulation. In addition, Executive Order

13084 requires EPA to develop an

effective process permitting elected

officials and other representatives of

Indian tribal governments ‘‘to provide

meaningful and timely input in the

development of regulatory policies on

matters that significantly or uniquely

affect their communities.’’

Today’s proposed rule does not

significantly or uniquely affect the

communities of Indian tribal

governments. This proposed action does

not involve or impose any requirements

that directly affect Indian tribes. Under

EPA’s tribal authority rule, tribes are not

required to implement CAA programs

but, instead, have the opportunity to do

so. Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

I. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Pub. L. No.

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38113

4Regulatory Impact Analysis for the Regional

Haze Rule. U.S. EPA, Office of Air Quality Planning

and Standards. April 22, 1999. Unit 6.6.3, pp. 6–

40 through 6–42.

5U.S. Environmental Protection Agency,

Controlling SO2 Emissions: A Review of

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

Research and Development, National Risk

Management Research Laboratory, Research

Triangle Park, NC, October 2000, pp 32–34.

6Based on wholesale energy prices for the year

2000.

104–113, § 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards 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 voluntary consensus standards

bodies. The NTTAA directs EPA to

provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

This action does not involve technical

standards. Therefore, EPA did not

consider the use of any voluntary

consensus standards.

J. Executive Order 13211. Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use

Executive Order 13211, ‘‘Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use’’ (66 FR 28355 (May

22, 2001)), provides that agencies shall

prepare and submit to the Administrator

of the Office of Information and

Regulatory Affairs, Office of

Management and Budget, a Statement of

Energy Effects for certain actions

identified as ‘‘significant energy

actions.’’ Section 4(b) of Executive

Order 13211 defines ‘‘significant energy

actions’’ as ‘‘any action by an agency

(normally published in the Federal

Register) that promulgates or is

expected to lead to the promulgation of

a final rule or regulation, including

notices of inquiry, advance notices of

proposed rulemaking, and notices of

proposed rulemaking: (1)(i) that is a

significant regulatory action under

Executive Order 12866 or any successor

order, and (ii) is likely to have a

significant adverse effect on the supply,

distribution, or use of energy; or (2) that

is designated by the Administrator of

the Office of Information and Regulatory

Affairs as a significant energy action.’’

Under Executive Order 13211, a

Statement of Energy Effects is a detailed

statement by the agency responsible for

the significant energy action relating to:

(i) any adverse effects on energy supply,

distribution, or use including a shortfall

in supply, price increases, and

increased use of foreign supplies)

should the proposal be implemented,

and (ii) reasonable alternatives to the

action with adverse energy effects and

the expected effects of such alternatives

on energy supply, distribution, and use.

While this rulemaking is a ‘‘significant

regulatory action’’ under Executive

Order 12866, EPA has determined that

this rulemaking is not a significant

energy action because it is not likely to

have a significant adverse effect on the

supply, distribution, or use of energy.

As discussed above in Unit IV.A, EPA

provided an estimate of the potential

cost of control to BART sources in the

RIA for the regional haze rule for the

year 2015. As specified in the CAA,

these BART sources include certain

utility steam electric plants and sources

in 25 additional industrial source

categories. In 1999, EPA estimated that

BART would impose additional costs of

$72 million per year (in 1990 dollars) in

2015 on affected utility and industrial

sources.4 It is expected that these

annual costs will be lower in 2015 than

currently projected due to continued

improvements in scrubber operation

and design. Included in the total cost is

an estimate that roughly 35 utility units

built between the years 1962 and 1977

would be required to install additional

control equipment, typically scrubbers.

Consistent with the RIA, we have

looked at the potential energy impacts

associated with scrubbers. About 60

percent of the overall $72 million

estimate, or about $40 million, was a

result of scrubber cost calculations.

These scrubber cost calculations are

based on cost models which determine

three types of costs for scrubbers: (1)

Annualized capital costs, (2) fixed

operation and maintenance costs, and

(3) variable operating and maintenance

costs. The cost models for variable

operating and maintenance costs took

into account the energy needs of the

scrubber, which was assumed to be

2.0% of the electricity generated by a

plant (or approximately 15,000

Megawatt-hours per year (MW–h/yr) for

a 100 MW scrubber).5 Although BART

requirements may also be achieved with

other control strategies and techniques

(such as emission trading, or switching

types of fuels used to produce power),

these scrubber cost calculations can be

used to provide an order of magnitude

estimate of possible energy costs. The

EPA estimates that of the total annual

cost estimate of $40 million for

scrubbers, about 20 to 35 percent, or

about $9 million to $15 million, would

be variable operating and maintenance

costs. The energy costs for the scrubbers

would be some fraction of this $9 to $15

million estimate, which also includes

other elements such as the costs of

reagents and disposal. Applying this

energy use to the roughly 35 utility

units requires a total of 525 million

MW–h/yr, or 0.5 billion Kilowatt-hours/

year (kWh–yr) of energy, which is

valued at $17 million.6

The EPA also believes that an annual

cost of $40 million for the electric utility

sector for the year 2015 and beyond

would not result in significant changes

in electricity or fuel prices, or in

significant changes in the consumption

of energy.

For non-utility sources, the costs of

the BART requirements may result from

installing, operating and maintaining

pollution control equipment or from

other control strategies and techniques.

As with utilities, a fraction of these

costs in some cases would be related to

the energy used to operate the pollution

control equipment, thus increasing the

overall demand for energy and fuels;

however, such impacts are usually a

small fraction of the overall annualized

costs of control equipment. Thus, EPA

believes that the energy costs for nonutility categories would be a relatively

small fraction of the $72 million cost

estimate. The EPA believes that the

overall effects on energy supply and use

for a small fraction of $72 million would

be trivial, and that this would not

significantly affect the price or supply of

energy.

Therefore, we conclude that based on

the analysis above that the BART

requirements of the Regional Haze Rule

will have a minimal impact, if any, on

energy prices, or on the supply,

distribution, or use of energy.

K. Guidelines for BART Determinations

Under the Regional Haze Rule

We are proposing to adopt guidelines

for BART determinations under the

regional haze rule. The guidelines and

areas on which comment is requested

are described below. After we receive

comments on these guidelines, we will

add them to 40 CFR part 51 as

appendix Y.

Guidelines for BART Determinations Under

the Regional Haze Rule

Table of Contents

I. Introduction and Overview

A. What is the purpose of the guidelines?

A. 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?

38114 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

E. What are the BART requirements in EPA’s

regional haze regulations?

F. Do States have an alternative to imposing

controls on specific facilities?

G. What is included in the guidelines?

H. Who is the target audience for the

guidelines?

II. How To Identify BART-eligible Sources

A. What are the steps in identifying BARTeligible sources?

1. Step 1: Identify emission units in BART

categories

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

those 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’’

A. How can I identify the ‘‘geographic area’’

or ‘‘region’’ that contributes to a given

Class I area?

IV. Engineering 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. What are the five basic steps of a case-bycase 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?

a. In general, what do we mean by

technical feasibility?

b. What do we mean by ‘‘available’’

technology?

c. What do we mean by ‘‘applicable’’

technology?

d. What type of demonstration is required

if I conclude that an option is not

technically feasible?

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

the technically feasible alternatives?

a. What are the appropriate metrics for

comparison?

b. How do I evaluate control techniques

with a wide range of emission

performance levels?

c. How do I rank the control options?

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 do I select the ‘‘best’’

alternative, using the results of steps 1

through 4?

a. Summary of the impacts analysis

b. Selecting a ‘‘best’’ alternative

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

I consider the affordability of controls?

V. Cumulative Air Quality Analysis

A. What air quality analysis do we require in

the regional haze rule for purposes of

BART determinations?

B. How do I consider the results of this

analysis in my selection of BART for

individual sources?

VI. Enforceable Limits / Compliance Date

VII. 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, EPA

recently 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—US Forest

Service), and one International Park

(under the jurisdiction of the RooseveltCampobello 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://

www.epa.gov/ttn/oarpg/t1/fr—notices/

classimp.gif

The CAA establishes a national goal

of eliminating man-made visibility

impairment from the Class I areas where

visibility is an important value. 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?

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 one

of 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)

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38115

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.

but which had not been in operation for

more than 15 years (that is, not in

operation as of August 7, 1962).

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:

—The costs of compliance,

—The energy and non-air quality

environmental impacts of compliance,

—Any existing pollution control

technology in use at the source,

—The remaining useful life of the

source, and

—The degree of visibility improvement

which may reasonably be anticipated

from the use of BART.

The CAA further requires States to make

BART emission limitations part of their

SIPs. As with any SIP revision, this will

be a public process that provides an

opportunity for public comment and

judicial review of any decision by EPA

to approve or disapprove the revision.

D. What Types of Visibility Problems

Does EPA Address in Its Regulations?

The EPA addressed the problem of

visibility in two phases. In 1980, EPA

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.

On July 1, 1999, EPA 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

regulations 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?

In the July 1, 1999 rulemaking, EPA

added a BART requirement for regional

haze. You will find the BART

requirements in 40 CFR 51.308(e)(1).

Definitions of terms used in 40 CFR

51.308(e)(1) are found in § 51.301.

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 one of 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 analyses:

— First, 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, and

the remaining useful life of the

source.

— Second, paragraph 308(e)(1)(ii)(B),

provides that States must conduct an

analysis of the degree of visibility

improvement that would be achieved

from all sources subject to BART that

are within a geographic area that

contributes to visibility impairment in

any protected Class I area.

Once 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 are allowed to 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

Imposing Controls on Specific

Facilities?

States are given the option under 40

CFR 51.308(e)(2) to adopt an alternative

approach to imposing controls on a

case-by-case basis for each source

subject to BART. However, while States

may instead adopt alternative measures,

such as an emissions trading program,

40 CFR 51.308(e)(2)(i) requires States to

provide a demonstration 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 list of all BART-eligible sources;

— 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-by-case basis,

States may consider these factors on

a category-wide basis, as appropriate,

in evaluating alternatives to BART;

— an analysis of the degree of visibility

improvement that would result from

the alternative program in each

protected Class I area.

States must make sure 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

may include additional sources. 40 CFR

51.308(e)(2) also requires that States

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 they 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?

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), but we will address

most of the details of guidance for

trading programs in separate guidelines.

The BART analysis process, and the

contents of this guidance, are as follows:

38116 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / 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.

–Identification of all BART-eligible

sources. Section II of this guidance

outlines a step-by-step process for

identifying BART-eligible sources.

–Identification of sources subject to

BART. As noted above, sources

‘‘subject to BART’’ are those BARTeligible 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.

–Engineering analysis. For each source

subject to BART, the next step is to

conduct an engineering 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 nonair quality environmental impacts,

taking into account the remaining

useful life and existing control

technology present at the source. For

each source, a ‘‘best system of

continuous emission reduction’’ will

be selected based upon this

engineering analysis. Guidelines for

the engineering analysis are described

in section IV of this guidance.

—Cumulative air quality analysis. The

rule requires a cumulative analysis of

the degree of visibility improvement

that would be achieved in each Class

I area as a result of the emissions

reductions achievable from all sources

subject to BART. The establishment of

BART emission limits must take into

account the cumulative impact overall

from the emissions reductions from

all of the source-specific ‘‘best

technologies’’ identified in the

engineering analysis. Considerations

for this cumulative air quality

analysis are discussed in section V of

this guidance.

—Emissions limits. Considering the

engineering analysis and the

cumulative air quality analysis, States

must establish enforceable limits,

including a deadline for compliance,

for each source subject to BART.

Considerations related to these limits

and deadlines are discussed in section

VI of the guidance.

—Considerations in establishing a

trading program alternative. General

guidance on how to develop an

emissions trading program alternative

is contained in section VII of the

guidance.

H. Who Is the Target Audience for the

Guidelines?

The guidelines are written primarily

for the benefit of State, local and tribal

agencies to satisfy 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.

II. How To Identify BART-Eligible

Sources

This section provides guidelines on

how you identify BART-eligible sources.

A BART-eligible source is an existing

stationary source in 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

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.

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38117

1. Step 1: Identify Emission Units in the

BART Categories

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,

38118 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

(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.

Some plant locations 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 a

electric steam generating unit and a coal

cleaning plant. You would identify emission

units associated with the electric steam

generating unit and the coal cleaning plant,

because they are listed categories but not the

mine, because coal mining is not a listed

category.

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 and we request comment on

whether there are any additional source

category titles for which EPA should

provide clarification in the final

guidelines:

—‘‘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.

Example: 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

should not be considered ‘‘steam

electric plants’’ because they typically

do not make steam.

—‘‘Fossil-fuel boilers of more than 250

million BTU/hr heat input.’’ The EPA

proposes two options for interpreting

this source category title. The first

option is the approach used in the

regulations for prevention of

significant deterioration (PSD). In the

PSD regulations, this same statutory

language has been interpreted in

regulatory language to mean ‘‘fossil

fuel boilers (or combinations thereof)

totaling more than 250 million British

thermal units per hour heat input.’’

The EPA proposes that this same

interpretation be used for BART as

well. Thus, as in the example above,

you would aggregate boiler capacities

to determine whether the 250 million

BTU/hr threshold is reached.

Under the second option, this

category would be interpreted to cover

only those boilers that are individually

greater than 250 million BTU/hr. This

approach would result in differing

language from the PSD program. It is

possible, however, that different

approaches may be justified. The PSD

program ensures that new source

projects do not circumvent the program

by constructing several boilers with

capacities lower than 250 million BTU/

hr. Because the BART program affects

only sources already in existence as of

the date of the 1977 CAA amendments,

there may be a lesser need to aggregate

boilers that are individually less than

250 million BTU/hr. The EPA requests

comment on both options proposed

above.

—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 petroleum-derived liquids.

—‘‘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.

—‘‘Charcoal production facilities.’’ In a

letter sent to EPA on October 11,

2000, the National Association of

Manufacturers (NAM) noted that there

is some limited legislative history on

this source category list. Specifically,

there is discussion in the

Congressional Record from July 29,

1976 (Cong. Record S. 12781–12784)

which identifies a study in the 1970s

by the Research Corporation of New

England (the TRC report). The

Congressional Record contains a table

extracted from the TRC report that

identifies 190 source categories

considered in developing a list of 28

categories that led to the 26 categories

eventually listed in the CAA. In its

October 11, 2000 letter, NAM suggests

that the Congressional Record and the

TRC report are relevant to the

interpretation of the source category

‘‘charcoal production facilities.’’

While EPA does not believe that the

TRC report or table contain any

information that would suggest

subdividing this category, EPA has

included the NAM letter and the cited

passage from the Congressional

Record in the docket for this proposed

rule. The EPA requests comment on

whether and how the information

cited by NAM is relevant to the

interpretation of this or other

categories.

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

the Emission Units

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?

The regulation 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.

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.

We note that emissions units of this size

for which construction commenced

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38119

3Another possible interpretation would be to

consider sources built before 1962 but modified

during the 1962–1977 time window as a ‘‘new’’

source at the time of the modification. Under this

approach, such sources would be considered to

have commenced operation during the 1962–1977

time period, and thus would be BART eligible.

Similarly, consistent with this interpretation, a

source modified after the 1977 date would be

treated as ‘‘new’’ as of the date of the modification

and therefore would not be BART-eligible. The EPA

believes that this approach may be much more

difficult to implement, given that programs to

identify ‘‘modifications’’ were not in place for much

of the 1962–1977 time period.

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.

Finally, we note that sources are not

BART eligible if the only change at the

plant 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?

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?’’

Under a number of CAA programs, an

existing source which is completely or

substantially rebuilt is treated as a new

source. Such ‘‘reconstructed’’ sources

are treated as new sources as of the time

of the reconstruction. Consistent with

this overall approach to reconstructions,

the definition of BART-eligible facility

(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.

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.

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.

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?

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.

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 EPA believes that the best

interpretation for purposes of the

visibility provisions is that modified

emissions units are still ‘‘existing.’’ The

BART requirements in the CAA do not

appear to provide any exemption for

sources which were modified since

1977. Accordingly, if an emissions unit

began operation before 1962, it is not

BART-eligible if it is modified at a later

date, so long as the modification is not

also a ‘‘reconstruction.’’ Similarly, an

emissions unit which began operation

within the 1962–1977 time window, but

was modified after August 7, 1977, is

BART-eligible. 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

that this level of control is already in

place and may find that the level of

controls are already consistent with

BART. The EPA requests comment on

this interpretation for ‘‘modifications.’’ 3

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:

—Sulfur dioxide (SO2),

—Nitrogen oxides (NOX),

—Particulate matter. (You may use PM10

as the indicator for particulate matter.

We do not recommend use of total

suspended particulates (TSP). PM10

emissions 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).

—Volatile organic compounds (VOC),

and

—Ammonia.

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.

38120 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

4Note: 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.

5The EPA recognizes that we are in transition

period from the use of the SIC system to a new

system called the North American industry

Classification System (NAICS). Our initial thinking

is that BART determinations, as a one-time activity,

are perhaps best handled under the SIC

classifications. We request comment on whether a

switch to the new system for the regional haze rule

is warranted—we expect that few if any BART

eligibility determinations would hinge on this

distinction. 6Note: The concept of support facility used for

the PSD program applies here as well. As discussed

in the draft New Source Review Workbook Manual,

October 1990, pages A.3–A.5, 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 more

than one 2-digit SIC is present.

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.

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.

A source’s ‘‘potential to emit’’ may take

into account federally enforceable

emission limits.

Example: The same source has a federally

enforceable restriction limiting it to operating

no more than 1⁄2 of the year. Because you can

credit this under the definition of potential

to emit, the source would have a potential of

150 tons per year, which is less than the 250

tons/year cutoff.

The definition of potential to emit

allows only federally enforceable

emission limits to be taken into account

for this purpose, and does not credit

emission limitations which are

enforceable only by State and local

agencies, but not by EPA and citizens in

Federal court. As a result of some court

cases in other CAA programs, EPA is

undertaking a rulemaking to determine

whether only federally enforceable

limits should be taken into account.

This rulemaking will address the

Federal enforceability restriction in the

regional haze definition as well as other

program definitions. We expect that this

rulemaking will be complete well before

the time period for determining whether

BART applies. How do I identify whether a plant has

more than one ‘‘stationary source?’’ 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.’’ 4 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). Pollutantemitting 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).

In applying this definition, it is first

necessary to draw the plant boundary,

that is the boundary for the ‘‘contiguous

or adjacent properties.’’ Next, within

this plant boundary it is necessary to

group those emission units that are

under ‘‘common control.’’ The EPA

notes 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. For emission units within the

‘‘contiguous or adjacent’’ boundary and

under common control, you then group

emission units that are within the same

industrial grouping (that is, associated

with the same 2-digit Standard

Industrial Classification (SIC) code).5

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. You should apply this ‘‘2-digit

SIC test’’ the same way you are now

applying this test in the major source

NSR programs.6

For purposes of the regional haze rule,

you 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.

Example: A stationary source comprises

the following two emissions units, with the

following potential emissions:

Emissions unit A

500 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 600 tons per year, 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 each are less

than 250 tons/yr.

Example: The total potential emissions,

obtained by adding the potential emissions of

all emission units in listed categories 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 per year, no individual regulated

pollutant exceeds 250 tons per year and this

source is not BART-eligible.

III. How To Identify Sources ‘‘Subject

To BART’’

After you have identified the BARTeligible sources, the next step is

determining whether these sources are

subject to a further BART analysis

because they emit ‘‘an air pollutant

which may reasonably be anticipated to

cause or contribute’’ to any visibility

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38121

impairment in a Federal Class I area. As

we discuss in the preamble to the

regional haze rule at 64 FR 35739–

35740, the statutory language represents

a very low triggering threshold. In

implementing the regional haze rule,

you should find that a BART-eligible

source is ‘‘reasonably anticipated to

cause or contribute’’ to regional haze if

the source emits pollutants within a

geographic region from which

pollutants can be emitted and

transported downwind to a Class I area.

Where emissions from a given

geographic region contribute to regional

haze in a Class I area, you should

consider any emissions from BARTeligible sources in that region to

contribute to the regional haze problem,

thereby warranting a further BART

analysis for those sources.

A. How Can I Identify ‘‘the Geographic

Area’’ or ‘‘Region’’ That Contributes to

a Given Class I Area?

As noted in the preamble to the

regional haze rule, geographic ‘‘regions’’

that can contribute to regional haze

generally extend for hundreds or

thousands of kilometers (64 FR 35722).

Accordingly, most BART-eligible

sources are located within such a

geographic region. For example, we

believe it would be difficult to

demonstrate that a State or territory’s

emissions do not contribute to regional

haze impairment in a Class I area within

that State or territory.

The regional haze rule recognizes that

there may be geographic areas

(individual States or multi-State areas)

within the United States, (in virtually

all cases involving States that do not

have Class I areas) for which the total

emissions make only a trivial

contribution to visibility impairment in

any Class I area. In identifying any such

State or area, you or a regional planning

organization must conduct an air quality

modeling analysis to demonstrate that

the total emissions from the State or

area makes only a trivial contribution to

visibility impairment in Class I areas.

One approach that can be used is to

determine whether a State or area

contributes in a non-trivial way would

be to do an analysis where you compare

the visibility impairment in a Class I

area with the emissions from a State or

area to the visibility impairment in the

Class I area in the absence of the

emissions from the State or area. This

approach can be referred to as a ‘‘zeroout’’ approach where you zero out the

emissions from the State or area that is

suspected to make a trivial contribution

to visibility impairment in a Class I area.

Under this approach, you would

compare:

(1) the visibility impairment in each

affected Class I area (for the average of

the 20 percent most impaired days and

the 20 percent least impaired days)

when the emissions from the State or

area suspected to have a trivial

contribution are included in the

modeling analysis, and

(2) the visibility impairment in each

affected Class I area (for the average of

the 20 percent most impaired days and

the 20 percent least impaired days),

excluding from the modeling analysis

the emissions from the geographic area

suspected to have a trivial impact.

The difference in visibility between

these two model runs provides an

indication of the impact on visibility of

emissions from the State(s) in question.

In addition, it may be possible in the

future to conduct analyses of the

geographic area that contributes to

visibility impairment in a Class I area

through use of a source apportionment

model for PM. Source apportionment

models for PM are currently under

development by private consultants.

Guidance for regional modeling for

visibility and PM is found in a

document entitled ‘‘Guidance for

Demonstrating Attainment of Air

Quality Goals for PM2.5 and Regional

Haze.’’ [Note: this document is currently

in draft form, but we expect a final

document before final publication of the

BART guidelines]

IV. Engineering 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.

In the regional haze rule, we divide the

BART analysis into two parts: an

engineering analysis requirement in 40

CFR 51.308(e)(1)(ii)(A), and a visibility

impacts analysis requirement in 40 CFR

51.308(e)(1)(ii)(B). This section of the

guidelines address the requirements for

the engineering analysis. Your

engineering analysis identifies the best

system of continuous emission

reduction taking into account:

—The available retrofit control options,

—Any pollution control equipment in

use at the source (which affects the

availability of options and their

impacts),

—The costs of compliance with control

options,

—The remaining useful life of the

facility (which as we will discuss

below, is an integral part of the cost

analysis), and

—The energy and non-air quality

environmental impacts of control

options.

We discuss the requirement for a

visibility impacts analysis below in

section V.

B. How Does a BART Engineering

Analysis Compare to a BACT Review

Under the PSD Program?

In this proposal, we are seeking

comment on two alternative approaches

for conducting a BART engineering

analysis. EPA prefers 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.

The EPA also requests 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

38122 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

7That is, emission uunits that were in existence

on August 7, 1977 and which began actual

operation on or after August 7, 1962.

8 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.

9 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

a NSPS level was selected. In the 20 year period

since this guidance was developed, there have been

advances in SO2 control technologies, 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 a NSPS level of

control, we believe that you should only reach this

conclusion based upon an analysis of the full range

of control options.

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

technologies. While both approaches

require essentially the same parameters

and analyses, the EPA prefers 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.

Although very similar in process,

BART reviews differ in several respects

from the BACT review process

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. 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,

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.

C. 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 7 are 300 tons per year of

NOX, 200 tons per year of SO2, and 150 tons

of primary particulate. Emissions unit A

emits 200 tons per year of NOX, 100 tons per

year of SO2, and 100 tons per year 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. What Are the Five Basic Steps of a

Case-by-Case BART Engineering

Analysis?

The five steps are:

Step 1—Identify all 8 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—Select ‘‘Best System of

Continuous Emission Reduction.’’

1. Step 1: How Do I Identify All

Available Retrofit Emission Control

Techniques?

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.

Where a 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.9 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.

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

result in lower ‘‘production-specific’’

emissions,

• Use of, (and where already in place,

improvement in the performance of)

add-on controls, such as scrubbers,

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38123

10Because BART applies to existing sources, we

recognize that there will probably be far fewer

opportunities to consider inherently lower-emitting

processes than for NSR.

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.

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 from 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.

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.

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.

In some cases, retrofit design changes

may be available for making a given

production process or emissions unit

inherently less polluting.10 (Example:

To allow for use of natural gas rather

than oil for startup). 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.

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.

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.

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

• EPA’s NSR bulletin board—http://

www.epa.gov/ttn/nsr;

• Department of Energy’s Clean Coal

Program—technical reports;

• NOX Control Technology ‘‘Cost

Tool’’—Clean Air Markets Division web

page—http://www.epa.gov/acidrain/

nox/noxtech.htm;

• Performance of selective catalytic

reduction on coal-fired steam generating

units—final report. OAR/ARD, June

1997 (also available at

http:www.epa.gov/acidrain/nox/

noxtech.htm);

• 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, 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,

IV–A–4);

• Controlling SO2 Emissions: A

Review of Technologies. EPA–600/R–

00–093, USEPA/ORD/NRMRL, October

2000.

• 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 two, you evaluate the

technical feasibility of the control

options you identified in Step one. 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

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

38124 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

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?

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.

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.

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?

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.

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.

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).

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.

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 EPA’s 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

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.

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38125

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.

In some instances, a control technology

may reduce more than one visibility

impairing pollutant. We request

comment on whether and how the

BART guidelines should address the

process for ranking such control

technologies against control

technologies which reduce emissions of

only one pollutant.

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?

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.

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.

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.

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? To

conduct a cost analysis, you:

—Identify the emissions units being

controlled,

—Identify design parameters for

emission controls, and

—Develop cost estimates based upon

those design parameters.

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.

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:

Control device Examples of design

parameters

Wet Scrubbers .......... Type of sorbent used

(lime, limestone,

etc.)

Gas pressure drop

Liquid/gas ratio.

38126 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

11The 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. 12 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. 13The reason for the year 2008 is that the year

2008 is the latest year for which SIPs are due to

address the BART requirement.

14Whenever 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

Selective Catalytic

Reduction.

Ammonia to NOX

molar ratio

Pressure drop

Catalyst life.

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.

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).11 In order to

maintain and improve consistency, we

recommend that you estimate control

equipment costs based on the EPA/

OAQPS Control Cost Manual, where

possible.12 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? 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.

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, 2008); 13 and

(2) The date the facility stops

operations. 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. (The EPA recognizes 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.) We request

comment on how such flexibility could

be provided in this regard while

maintaining consistency with the

statutory requirement to install BART

within 5 years. For example, one option

that we request comment on is allowing

a source to choose between:

(1) Accepting a federally enforceable

condition requiring the source to shut

down by a given date, or

(2) Installing the level of controls that

would have been considered BART if

the BART analysis had not assumed a

reduced remaining useful life if the

source is in operation 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.

c. What do we mean by cost

effectiveness? Cost effectiveness, in

general, is a criterion used to assess the

potential for achieving an objective at

least cost. 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 costeffectiveness.

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

Baseline annual emissions Annual emissions with Control option

14

= −

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38127

15This is the approach in the current NSR

regulations. It is possible that this definition of

baseline period may change based upon a current

effort to amend the NSR regulations. We propose

that these guidelines should be amended to be

consistent with the approach taken in that separate

rulemaking.

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? 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. For purposes of

estimating actual emissions, these

guidelines take a similar approach to the

current definition of actual emissions in

NSR programs. That is, the baseline

emissions are the average annual

emissions from the two most recent

years, unless you demonstrate that

another period is more representative of

normal source operations.15

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.

Examples: 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 costeffective 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? 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 100,000 ton/yr reduction at an

annual cost of $19 million. Option 2 achieves

a 98,000 tons/yr reduction at an annual cost

of $15 million. The incremental cost

effectiveness of Option 1 relative to Option

2 is ($19 million ¥ $15 million) divided by

(100,000 tons ¥ 98,000 tons). The adoption

of Option 1 instead of Option 2 results in an

incremental emission reduction of 2,000 tons

per year at an additional cost of $4,000,000

per year. The incremental cost of Option 1,

then, is $2000 per ton ¥ 10 times the average

cost of $190 per ton. While $2000 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 non-air

environmental effects, which also deserve

consideration in selecting a BART

technology.

You should exercise care in deriving

incremental costs of candidate control

options. Incremental cost-effectiveness

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.

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.

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, 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

for the difference between options B and

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

and options G and H.

38128 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

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.

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 a reasonable

range, but your analysis concludes that

costs for the source being analyzed are

not reasonable.

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.

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38129

h. Impact analysis part 2: How should

I analyze and report energy impacts?

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, in general, consider such penalties

to be an adequate justification for

eliminating that technology from

consideration.

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.

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.

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.

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?’’ 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.

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 most

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 problem under review 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.

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 that case, 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.

Thus, any important relative

environmental impacts (both positive

and negative) of alternatives can be

compared with each other.

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:

• 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.

• 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,

38130 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

16 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 flue gas desulfurization

(FGD) systems worldwide, provides detailed

methods for evaluating costs, and explains the

reasons why costs have been decreasing with time.

17The EPA has 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/OAQPS,

December 29, 2000).

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.

• 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).

• 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

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.

• 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 to nearby

sensitive water bodies.

5. Step 5: How Do I Select the ‘‘Best’’

Alternative, Using the Results of Steps

1 Through 4?

a. 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:

• Expected emission rate (tons per

year, pounds per hour);

• Emissions performance level (e.g.,

percent pollutant removed, emissions

per unit product, lb/MMbtu, ppm);

• Expected emissions reductions

(tons per year);

• Costs of compliance—total

annualized costs ($), cost effectiveness

($/ton), and incremental cost

effectiveness ($/ton);

• Energy impacts (indicate any

significant energy benefits or

disadvantages);

• Non-air quality environmental

impacts (includes any significant or

unusual other media impacts, e.g., water

or solid waste), both positive and

negative.

b. Selecting a ‘‘best’’ alternative. 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.’’

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.

The EPA also requests 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.

Because of EPA’s experience in

evaluating SO2 control options for

utility boilers, the Agency is proposing

to establish a presumption regarding the

level of SO2 control that is generally

achievable for such sources. Based on

the cost models in the Controlling SO2

Emissions report,16 it appears that,

where there is no existing control

technology in place, 90–95 percent

control can generally be achieved at

cost-effectiveness values that are in the

hundreds of dollars per ton range or

less.17 We are thus proposing a

presumption that, for uncontrolled

utility boilers, an SO2-control level in

the 90–95 range is generally achievable.

If you wish to demonstrate a BART level

of control that is less than any

presumption established the final

guidelines, you would need to

demonstrate the source-specific

circumstances with respect to costs,

remaining useful life, non-air quality

environmental impacts, or energy

impacts that would justify less stringent

controls than for a typical utility boiler.

We believe that the ‘‘consideration of

cost’’ factor for source-by-source BART,

which is a technology-based approach,

generally requires selection of control

measures that are within this level of

cost effectiveness. We recognize,

however, that the population of utility

boilers subject to BART may have caseby-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 invite comments on

whether the 90–95 percent presumption

is appropriate, or whether another

presumption should be established

instead. If commenters want to offer a

different presumption they should

provide documentation supporting the

basis for their proposal.

For evaluating the significance of the

costs of compliance, EPA requests

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38131

18Technical 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.

19 (The current draft of this document is entitled

Guidance for Attainment of Air Quality Goals for

PM2.5 and Regional Haze. We expect this document

will be released in final form before the publication

of the final rule for the BART guidelines.)

comment on whether the final rule

should contain specific criteria, and on

whether such criteria would improve

implementation of the BART

requirement. For example, in the work

of the Western Regional Air Partnership

(WRAP),18 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.

c. In selecting a ‘‘best’’ alternative,

should I consider the affordability of

controls? 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.

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 shutdowns.

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.

V. Cumulative Air Quality Analysis

A. What Air Quality Analysis Do We

Require in the Regional Haze Rule for

Purposes of BART Determinations?

In the regional haze rule, we require

the following in 40 CFR

51.308(e)(1)(ii)(B):

An analysis of the degree of visibility

improvement that would be achieved in each

mandatory Class I Federal area as a result of

the emission reductions from all sources

subject to BART located within the region

that contributes to visibility impairment in

the Class I area, based on the * * * [results

of the engineering analysis required by 40

CFR 51.308(e)(1)(ii)(A)] * * *

This means that the regional haze rule

requires you to conduct a regional

modeling analysis which addresses the

total cumulative regional visibility

improvement if all sources subject to

BART were to install the ‘‘best’’ controls

selected according to the engineering

analysis described above in section IV of

these guidelines. We are developing

guidelines for regional air quality

modeling.19

B. How Do I Consider the Results of This

Analysis in My Selection of BART for

Individual Sources?

You use a regional modeling analysis

to assess the cumulative impact on

visibility of the controls selected in the

engineering analysis for the time period

for the first regional haze SIP, that is,

the time period between the baseline

period and the year 2018. You use this

cumulative impact assessment to make

a determination of whether the controls

you identified, in their entirety, provide

a sufficient visibility improvement to

justify their installation. We believe that

there is a sufficient basis for the controls

if you can demonstrate for any Class I

area that any of the following criteria are

met:

(1) The cumulative visibility

improvement is a substantial fraction of

the achievable visibility improvement

from all measures included in the SIP,

or is a substantial fraction of the

visibility goal selected for any Class I

area (EPA believes that for such

situations, the controls would be

essential to ensure progress towards a

long-term improvement in visibility);

OR

(2) The cumulative visibility

improvement is necessary to prevent

any degradation from current conditions

on the best visibility days.

Note that under 40 CFR

51.308(e)(1)(ii)(B), the passage cited

above, the rule does not provide for

modeling of subgroupings of the BART

population within a region, nor for

determinations that some, but not all, of

the controls selected in the engineering

analysis may be included in the SIP.

Thus, to comply with 40 CFR

51.308(e)(1), the visibility SIP must

provide for BART emission limitations

for all sources subject to BART (or

demonstrate that BART-level controls

are already in place and required by the

SIP), unless you provide a

demonstration that no BART controls

are justifiable based upon the

cumulative visibility analysis.

VI. 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 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

38132 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

20We 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.

21An 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.

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.

VII. 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 20

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

A. What Are the General Steps in

Developing an Emission Trading

Program?

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).

B. What Are Emission Budgets and

Allowances?

An emissions budget is a limit, for a

given source population, on the total

emissions amount 21 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:

—Emitting at the level of allowances

they are allocated (for example, by

controlling emissions or curtailing

operations),

—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

—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.

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. Other trading

programs generally have applied only to

sources within a single State. A regional

multi-State program provides greater

opportunities for emission trading, and

should be considered by regional

planning organizations that are

evaluating alternatives to sourcespecific BART. The WRAP has

recommended a regional market trading

program as a backstop to its overall

emission reduction program for SO2.

Although regional trading programs

require more interstate coordination,

EPA has expertise that it can offer to

States wishing to pursue such a

program.

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:

—Identify the sources that are subject to

BART,

—Calculate the emissions reductions

that would be achieved if BART were

installed and operated on sources

subject to BART,

—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,

—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

—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?

For a trading program under

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

emission reductions by:

—Conducting a case-by-case analysis for

each of the sources, using the

procedures described above in these

guidelines in sections II through V;

—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 categorywide basis; or

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38133

22We request comment on whether these

guidelines should recommend a weighted average

of the values instead of presenting the values as a

range.

23As 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.

24The base year must reflect the year of the most

current available emission inventory, in many cases

the year 2002, and this base year should not be later

than the 2000–2004 time period used for baseline

purposes under the regional haze rule.

—Conducting an analysis that combines

considerations on both source-specific

and category-wide information.

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.22 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.

The EPA requests comment on an

approach to the category-wide analysis

of BART that would allow the States to

evaluate 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 23

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

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:

—Identify the source population

included within the budget, which

must include all BART sources and

may include other sources,

—For sources included within the

budget, develop a base year 24

emissions inventory for stationary

sources included within the budget,

using the most current available

emission inventory,

—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,

—Calculate the reductions from the

forecasted emissions if BART were

installed on all sources subject to

BART,

—Subtract this amount from the

forecasted total, and

—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].

38134 Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules

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

Example: In Class I area X, BART would

result in 2.5 deciviews of improvement but

the trading program would achieve 1.4

deciviews. The criterion would be met

because the trading program results in

improvement of 1.4 deciviews, rather than a

decline in visibility.

—Overall improvement in visibility,

determined by comparing the average

differences over all affected Class I

areas

Example: For the same scenario, assume

that ten Class I areas are impacted. The

average deciview improvement from BART

for the ten Class I areas is 3.5 deciviews (the

2.5 deciview value noted above, and values

for the remaining areas of 3.9, 4.1, 1.7, 3.3,

4.5, 3.1, 3.6, 3.8 and 4.5). 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 EPA to require a

particular process and criteria for

individual source allocations, and thus

we will not dictate how to allocate

allowances. We will provide

information on allocation processes to

State and local agencies, and to regional

planning organizations.

6. What Provisions Must I Include in

Developing a System for Tracking

Individual Source Emissions and

Allowances?

The EPA requests comment generally

on what the BART guidelines should

require in terms of the level of detail for

the administration of a trading program

and for the tracking of emissions and

allowances. 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.

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.

The first example is EPA’s 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:

—Title IV of the CAA Amendments

(1990),

—40 CFR part 73 at 58 FR 3687 (January

1993),

—EPA’s acid rain website, at

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

The second example is the rule for

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

call rule 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:

—The preamble and rule in the Federal

Register at 63 FR 57356 (October

1998),

—The NOX compliance guide, available

at www.epa.gov/acidrain/modlrule/

main.html#126,

—Fact sheets for the rule, available at

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

related.html#prop,

—Additional information available on

EPA’s web site, at www.epa.gov/

acidrain/modlrule/main.html.

A third program that provides a good

example of trading programs is the 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:

—Memorandum of Understanding

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

att2.HTM,

—Fact sheets available at www.sso.org/

otc/Publications/327facts.htm,

—Additional information, available at

www.epa.gov/acidrain/otc/

otcmain.html.

The EPA is 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.

The EPA recognizes 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.

At the same time, we request comment

on whether States and/or regional

planning organizations should conduct

additional technical analyses (and, if so,

to what extent) to determine whether

the time periods for tracking of

allowances under 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. The

EPA expects that if such analyses are

conducted, they would be conducted 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 40 CFR

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

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

Federal Register / Vol. 66, No. 140 / Friday, July 20, 2001 / Proposed Rules 38135

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)).

The EPA recognizes 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.

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.

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: June 22, 2001.

Christine T. Whitman,

Administrator.

In addition to the guidelines

described above, 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

adding paragraph(e)(1)(ii)(C) as follows:

§ 51.308 Regional haze program

requirements.

* * * * *

(e) * * *

(1) * * *

(ii) * * *

(C) Appendix Y of this part provides

guidelines for conducting the analyses

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

(e)(1)(ii)(B) 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.

* * * * *

[FR Doc. 01–18094 Filed 7–19–01; 8:45 am]

BILLING CODE 6560–50–P