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Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 51

[FRL 1487-2, Docket No. A-79-40]

Visibility Protection for Federal Class I

Areas

AGENCY: U.S. Environmental Protection

Agency (EPA).

ACTION: Proposed rulemaking.

SUMMARY: Section 169A of the Clean Air

Act requires EPA to promulgate

regulations to assure reasonable

progress toward the congressionally

declared goal of "the prevention of any

future, and the remedying of any

existing, impairment of visibility in

mandatory class I Federal areas which

impairment results from manmade air

pollution." Today's action proposes

regulations which would require thirtysix States to develop and implement

programs to address the congressionally

declared national goal. EPA is also

making available today certain

guidelines which would provide

analytical tools for carrying out the

regulations. This proposal would also

provide additional procedures for

conducting visibility analyses under

EPA's prevention of significant

deterioration regulations. This notice

establishes a 75-day comment period

and schedules two legislative-type

public hearings for the purpose of

receiving comments on both the

proposal and the guidelines.

DATES: Written comments must be

postmarked no later than August 5, 1980.

Public hearings will be held on June 30,

1980 (Washington, D.C.), and July 2, 1980

(Salt Lake City, Utah).

ADDRESS: All written romments should

be submitted (in duplicate, if possible)

to; Central Docket Section (A-130),

Docket No. A-79-40, U.S. Environmental

Protection Agency, 401 M Street, S.W.,

Washington, D.C. 20460.

Docket No. A-79-40, containing

material relevant to-this action, is

located in the U.S. Environmental

Protection Agency, Central Docket

Section, Room 2902, 401 M Street, S.W.,

Washington, D.C. 20460. The docket may

be inspected between 8:00 a.m. and 4:00

p.m. on weekdays and a reasonable fee

may be charged for copying.

Public hearings are scheduled for the

following locations:

(a) Room 3906, U.S. Environmental

Protection Agency, 401 M Street, SW.,

Washington, D.C., 9:00 a.m. (EDT), June

30, 1980.

(b) Little Theater, Salt Palace, 100

S.W. Temple, Salt Lake City, Utah, 9:00

a.m. (MDT), July 2, 1980.

FOR FURTHER INFORMATION CONTACT:

Mr. Johnnie L. Pearson, Office of Air

Quality Planning and Standards MD15), Environmental Protection Agency,

Research Triangle Park, North Carolina

27711, Telephone: (919) 541-5497.

I. Supplementary Information

A. Public Hearings

EPA is announcing two legislativetype public hearings on the proposed

regulations. These public hearings will

be held in Washington, D.C., and Salt

Lake City, Utah. The purpose of these

public hearings is to receive public

comment on the proposed regulations. A

verbatim transcript of each hearing will

be made and placed in Docket No. A79-40, Central Docket Section (A-130),

U.S. Environmental Protection Agency,

Room 2902, 401 M Street, SW.,

Washington, D.C. 20460.

Any person who wishes to speak at

the meeting should, by June 23, 1980,

notify the Information Contact listed

above of the intent to make an oral

presentation, giving name, address,

telephone number, and length of

presentation. In order to permit as many

views as possible, presentations will, in

general, be limited to 15 minutes.

Additional time will be made available

based upon the number of commenters

and the demonstrated need for

additional time. EPA will develop a

schedule for presentations based upon

the notices it receives. Persons not

providing prior notice but desiring to

speak will be accommodated as time

permits. Persons with a written

statement should submit three copies of

the statement to aid in its prompt

evaluation. A copy of any written

statement received at the hearing will be

placed in the docket noted above.

B. Request for Extension of Comment

Period

The Agency recognizes the substantial

amount of material presented by this

proposal and accompanying guidelines

but is confident the 75-day comment

period and the two public hearings

present ample opportunity for the

written and oral presentations of data,

views, and arguments, especially since

this proposal was preceded by an

Advance Notice of Proposed

Rulemaking (ANPR), published

November 30, 1979 (44 FR 69116), which

itself established a 30-day written • comment period and three public

workshops that were held in Seattle,

Washington; Salem, Oregon; and

Denver, Colorado, the week of January

20, 1980. Thus, EPA intends to deny any

request for extension of the comment

period without a showing of

extraordinary circumstances. EPA notes,

additionally, that any extension of the

comment period would seriously

jeopardize its ability to promulgite final

regulations by November 15, 1980 as It

must under an order entered November

5, 1979 in the United States District

Court for the District of Columbia in

Friends of the Earth, Inc. v Castle, No,

80-3081. This litigation resulted from

EPA's inability to promugate regulations

by August 7, 1979 as required by Section

169(a)(4) of the Clean Air Act (Act) 42

USC 7491(a)(4).

II. Background

A. The Statute

Section 169A of the Clean Air Act

requires visibility protection for

mandatory class I Federal areas whore

it has been determined that visibility Is

an important value. "Mandatory class I

Federal areas" are all international

parks and certain national parks and

wilderness areas as described in Section

162(a) of the Act. To work toward

meeting the national visibility goal set

out in Section 169A(a)(1) of the

prevention of any future and remedying

of any existing man-made visibility

impairment in such areas, Section 169A

requires that the:

e Department of Interior review all

mandatory class I Federal areas and

identify those where visibility is an

important value [Section 169(a)(2)].

e EPA, after consulting with the

Department of Interior, promulgate a list

of the mandatory class I Federal areas

in which visibility is an important value

[Section 169A(aJ(2)].

* EPA prepare a report to Congress on

methods for achieving progress toward

the visibility goal. The report must

include methods to determine visibility

impairment, modeling techniques,

methods for preventing and remedying

man-made air pollution and resulting

visibility impairment, and a discussion

of visibility related pollutants and

sources [Section 169A(a)(3)].

o EPA promulgate regulations which

will (1) provide guidelines to States for

including visibility protection in State

Implementation Plans (SIPs); (2) require

SIPs to include emission limits,

schedules for compliance, and other

measures as may be necessary to make

reasonable progress toward meeting the

national visibility goal; and (3) provide

guidelines for determining best available

retrofit technology emission limitations

for fossil-fuel fired power plants In

excess of 750 megawatts generating

capacity [Section 169A(a)(4) and (b)],

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Federal Register / Vol. 45, No. 101 / Thursday, May 22. 1960 / Proposed Rules

- EPA approve or disapprove SIP

revisions submitted in response to the

promulgated requirements [Section

110(a)(2)] and promulgate regulations for

those States which submit inadequate

regulations or fail to submit regulations

in response to EPA's requirements

[Section 110(c)].

9 In addition, Congress also included

visibility protection requirements in the

preconstruction requirements for

prevention of significant deterioration

[PSD) in Section 165 of the Act:

* Federal Land Managers haVe "an

affirmative responsibility" to protect the

visibility values of a class I area and

may recommend the denial of a PSD

permit if an adverse impact on visibility

would result, even if the class I PSD

increments would be met [Section

165(d)].

* PSD applicants must analyze the

visibility at the site of the proposed

construction and any area potentially

affected by the proposed construction

[Section 165(e)].

B. Rulemaking

On November 30.1979, the Agency

initiated informal regulatory

development by publishing an Advance

Notice of Proposed Rulemaking (ANPR)

(44 FR 69116). The purpose of this ANPR

was to inform the public of this effort

and to solicit comments on various

major issues which needed resolution

during regulatory development. A

summary and a copy of all comments

received is included in Docket A-79-40.

EPA's response to many of those

comments is included in the various

sections of this preamble. Also on

November 30.1979. EPA published its

final determination under Section

169A(a)(2) of mandatory class I Federal

areas where visibility is an important

value [44 FR 69122).

C. Document A vailability

The Agency relied on the documents

listed below, which served as

background to these proposed

regulations. The Agency is soliciting

comments, especially on the DRAFT

documents. The documents listed as

final have previously received

substantial public review. Both draft

and final documents are in Docket No.

A-79-40 and are also available from the

sources indicated below.

(1) "Protecting Visibility: An EPA

Report to Congress' (EPA-450/5-79-008)

(final), will be available shortly from:

National Technical Information Service,

5285 Port Royal Rd., Springfield, Virginia

22161.

(2) "The Development of

Mathematical models for the Prediction

of Anthropogenic Visibility Impairment"

(EPA-450/3-78-110 a, b, c), (final),

National Technical Information Service,

5285 Port Royal Rd., Springfield. Virginia

22161 [PB 293119, PB 293120, PB 293121).

(3) "Criteria for the Identification of

Integral Vistas (draft)," Control

Programs Development Division (MD15), U.S. Environmental Protection

Agency, Research Triangle Park. NC

27711. The Agency is proposing to

incorporate this guideline by reference

in the Federal Register and expects to

ask the Director of the Federal Register

for approval before promulgation.

(4) "Proposed Guidelines for

Determining Best Available Retrofit

Technoligy for Coal-Fired Power Plants

and Other Major Stationary Sources

[Draft)," Control Programs Development

Division (MD-15), U.S. Environmental

Protection Agency, Research Triangle

Park, NC 27711.

The Agency is proposing to

incorporate this guideline by reference

in the Federal Register and expects to

ask the Director of the Federal Register

for approval before promulgation.

[5) "Preliminary Assessment of

Economic Impacts of Visibility

Regulations (Draft)," Control Programs

Development Division [MD-IS), U.S.

Environmental Protection Agency,

-Research Triangle Park, NC 27711.

IlL PROGRAM OVERVIEW

This preamble provides a brief

description of the regulatory program,

serving to introduce the specific

regulatory language. Following the

regulatory language is a Supplemental

Statement of Basis and Purpose which

discusses the reasons why we have

taken certain positions in this proposal

THE PROBLEM

Congress has set aside certain

international parks and national

wilderness areas, national memorial

parks, and national parks [mandatory

class I Federal areas) to preserve and

enhance their beauty for present and

future generations to enjoy. The intrinsic

beauty of these areas, however, has

been threatened due to visibility

degrading pollution. Congress became

aware of the need to protect visibility in

these areas and directed EPA to explore

the relationship between man-caused

pollution and visibility.

From this research we can say there

are generally two types of air pollution

which reduce or impair visibility:

[1) smoke, dust, or colored gas plumes

that are emitted from stacks and

obscure the sky or horizon relatable to a

single source or a small group of

sources, and (2) widespread, regionally

homogeneous haze from a multitude of

sources which impairs visibility in every

direction over a large area.

These types of pollution are caused by

factories, plants, and other sources that

emit particles and gases into the air.

These substances either absorb or

scatter the light, thus reducing the

amount of light a person can receive

from a viewed object. The practical

effect is that impaired visibility

degrades the aesthetic value of

surrounding landscape by either

discoloring the atmosphere to produce a

visible plume or whitening the horizon

and causing objects to appear flattened

so that landscape colors and textures

become less discernible or, in the case

of a discernible plume. obsuring some

portion of the landscape.

The Program

A Phased Approach to the Problem

Congress, in recognition of the need to

protect such aesthetics declared as a

national visibility goal the remedying of

existing pollution and the prevention of

any future pollution that interferes with

visibility in mandatory class I Federal

areas. We reviewed the techniques for

identifying, measuring, predicting, and

controlling isibility impairment, and In

November, 1979, published "Protecting

Visibility: An EPA Report to Congress"

which discusses in detail the present

scientific knowledge of visibility,

including monitoring, modeling, and

control of visibility impairment.

As described in that report, we

determined that the present

mathematical models and monitoring

techniques, while showing promise,

should be evaluated further before they

are routinely required in a regulatory

program which applies to existing

sources that impair visibility. However,

in some instances we can idenfity the

origin of visibility impairment caused by

a single source or small group of sources

without the use of sophisticated

analytical techniques. Simple monitoring

techniques such as visual observation

(either ground based or with aircraft)

can often identify which source

contributes to the impairment.

Modeling and monitoring techniques

which address impairment caused by

single sources will soon be available.

Similar techniques which deal with

multiple-source problems (regional haze

and urban plumes) need additional

research and will not be available for

some time.

Recognizing the need to initiate.

protection as soon as possible while

also realizing that certain scientific and

technical limitations do exist. we are

proposing a phased approach to.

34763
Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

visibility protection, Phase I of this

program would:

1. Require control of impairment that

can be traced to, a single major source or

small group of sources.

2. Evaluate and control new sources

to prevent future impairment, and

3. Require States to adopt other

strategies to remedy existing and

prevent future visibility impairment.

Future phases will fhrther implement

the visibility program by addressing

more complex problems such as regional

haze and urban plumes. We will

propose and promulgate future phases

when improvement in monitoring

techniques provides more data on

source specific levels of visibility,

regional scale models become refined,

and our general scientific knowledge of

visibility improves.

Even though we are calling these

proposed regulations "Phase I of the

visibility protection program," the basic

structure of the regulations provided

today will remain constant for all

phases. These regulations function as

the basic framework from which this

present program can be implemented

and into which future phases can be

incorporated. In other words, the basic

plan requirements will remain

consistent while only the elements

which define the scope of the program

will change in response to advances in

our technical knowledge.

The proposed regulatioris require

input into the program by all affected

parties: Thus, coordination between the

States, the Federal Land Managers, and

EPA will be necessary to implement an

effective visibility program. The State

retains the primary responsibility of

developing a viable visibility program.

The Federal Land Manager has the

responsibility of protecting the visibility

values of Federal class I areas. These

two must work together to ensure the

visibility values of these areas are

protected. EPA's responsibility is to (1]

promulgate visibility regulations which

would require States to revise their

State Implementation Plans (SIPs), and

(2) contiune research into visibility for

use in future phases.

The Program-In Detail

We are proposing regulations that

require the 36 States containing

mandatory class I Federal areas to

submit revisions to their SIPs within 9

months. These revisions will (1) require

certain existing major stationary sources

to install the Best Available Retrofit

Technology (BART) for controlling'those

pollutants which cause visibility

impairment, (2) identify and evaluate

long-term strategies for making

reasonable progress toward remedying

existing and preventing future

impairment in the mandatory class I

Federal Areas, and (3) require the

adoption of certain measures that will

supplement the States' new source

review program regarding visibility

impacts. These requirements are

summarized below.

A. BARTReqiirements

1. The Federal Land Managers and

the States will begin early consultation

with each other. We expect these two

groups to work closely with each other

throughout the process of developing all

aspects of the SIP revision. Because the

Clean Air Act charges the Federal Land

Managers with protecting air quality

related values, including visibility, the

State must adequately consider

comments from the Federal Land

Managers.

2. The Federal Land Manager or the

State identifies whether, within any

mandatory class IFederal area, there

exists any impairment of visibility. This

impairment must be identified within go

days of promulgation of these

regulations. We are defining

"impairment" as any "humanly

perceptible change in visibility (visual

range, contrast, coloration) from that

which would have existed under natural

conditions."

3. Federal Land Managers or the State

will identify the integral vistas (if any)

for each mandatory class I Federal area.

These regulations would permit the

Federal Land Managers to identify

integral vistas. An integral vista is a

view from within the area of a scenic

landmark that is located outside the

boundary of the aiea.

4. The State, in consultation with the

Federal Land Managers, will identify

the existing-major stationary sources

which cause the visibility impairment.,

The regulation proirides a specific

definition for existing major stationary

sources. During Phase I of the visibility

program, the State and the Federal Land

Manager must be able to "reasonably

attribute" the visibility impairment in

the mandatory class I Federal area to a

major stationary source through visual

observation or othertmonitoring

technique. During later phases of the

program, the Agency will likely require

the State and Federal Land Managers to

place more emphasis on the use of

modeling in identifying pollution

sources.

5. The State, in consultation with the

Federal Land Manager, willperform a

BART analysis on existing major

stationary sources identified as

impairing visibility. The BART analysis

does not apply to any source which was

in operation before August 7, 1962. In

the BART analysis, the State determines

what additional air pollution control

technologies need to be required in

order to reduce existing visibility

impairment.

In conducting this analysis, the State

first identifies those control techniques

that could improve visibility. If

techniques exist then the State proceeds

with the BART analysis, but If no

technique exists, then the State stops

the analysis at this point. For example,

while methods might exist for the partial

control of a pollutant the reductions

achievable may not be sufficient to

achieve any improvement in visibility, In such a case the State would not be

obligated to require controls. If control

techniques do exist that would improve

visibility, the State begins studying

alternative control strategies. The State

should consider, on a case-by-case

basis, how much various alternative

control techniques would cost, the

energy and environmental impact of the

controls, what air pollution technologies

the source already has in place, the

remaining useful life of the source, and

to what degree the control alternatives

would improve visibility. In order to

assist States in the analysis of BARTthe

Agency has developed a guideline. For

large power plants, BART must be

determined pursuant to this guideline.

The BART guideline proposed today Is

necessarily general. The Agency Is

considering supplementing this guideline

in the near future, particularly with

regard to specific large fossil-fuel fired

power plants or categories of such

power plants. The last stage of the BART analysis is

for the State to specify an'emission

limitation that reflects BART. The

source must then install, operate, and

maintain the control technology to meet

the emission limitation.

6. The source may apply to the

Administrator for an exemption from

BARTon the basis that the source does

not cause or contribute to significant

impairment of visibility. The source

must notity the Federal Land Manager of

its application and must receive written

concurrence from the State on the

application. To receive an exemption,

the source must demonstrate to the

Administrator that it does not cause or

contribute to significant impairment of

visibility.

By significant impairment we mean

the level of impairment that interferes

with the intended use of the area. When

applying for an exemption, a source

should address the frequency, extent,

time of occurrence, intensity and

duration of the impairment. If the

Administrator grants an exemption, the

Federal Land Manager must concur

34764
Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

before the exemption will become

effective.

B. Monitoring of Visibility Impacts.

1. The State will develop a monitoring

strategy. This strategy would assess the

State's need for visibility monitoring

taking into consideration available and

forthcoming monitoring techniques and

guidelines.

2. The State will provide for

consideration of monitoring

requirements for new sources. The State

should assess the need for monitoring by a source to provide information on

any potential impacts on visibility in the

Federal Class I area as part of the new

source review process.

3. The State will evaluate any

available honitoring data. Any existing

monitoring data available to the State

should be incorporated into the State's

decision-making process for BART

determinations and new source review

decisions,

C. Development of the Long-Term

Strategy.

The proposal would require each plan

to include a long-term (10-15 year)

strategy for making reasonable progress

toward remedying existing and

preventing future visibility impairment.

The requirements are summarized

below.

Remedying Existing Impairment

1. The State must consider any land

management plans toprotect or enhance

visibility in the mandatory class I

Federal area. This will also be useful in

developing the part of the long-term

strategy relating to prevention of future

impairment.

2. Some of the measures the State

must consider are.

a. The effectiveness of existing air

pollution control programs in reducing

visibility impairment. For example, the

attainment/maintenance of National

Ambient Air Quality Standards may

have a positive effect on reducing or

eliminating visibility impairment in

mandatory class I Federal areas. If this

is the case, the State should explain how

this would contribute to reasonable

progress.

b. Additional emission limitations and

schedules for compliance for

uncontrolled or poorly controlled

sources not covered by BAR T. This

recognizes that States may have to

control sources not covered by BART to

make reasonable progress t'ward the

national goal.

c. Retirement of existing sources and

replacement with new. well controlled

facilities. Where possible this should be

encouraged because this measure may

have a positive effect on visibility.

3. The State must do a reanalysis for

each existing major stationary source

which contributes to visibility

impairment in a mandatory class I

Federal area. This reanalysis would

occur when the Administrator

determines new technology is available

which would more effectively control a

pollutant which causes visibility

impairment. All pollutants would be

analyzed for their contribution to the

visibility impairment regardless of

previous BART requirements. Where

control representing BART has not been

previously required for a pollutant

reanalyzed, the State shall require the

imposition of such control as indicated

by this reanalysis.

Preventing Future Impairment

The States must review all major

emitting facilities and major

modifications as defined in EPA's

Prevention of Significant (PSD)

regulations for their anticipated impacts

on visibility in mandatory class I

Federal areas.

The prevention of future visibility

impairment was a major concern of

Congress. It is addressed not only in

Section 169A, which deals exclusively

with visibility, but also in Sections.160-

169 on PSD. We have already

promulgated regulations meeting the

visibility requirements of the PSD

Sections. In these PSD regulations, the

owner or operator of new major emitting facilities or major modifications of a

major emitting facility must assess

whether they would impair visibility.

Thus, a State's compliance with the PSD

program would go a long way toward

preventing future visibility impairment

in mandatory class I Federal areas.

There is, however, a gap in the PSD

regulations in that they do not call for

the review of a major emitting facility or

major modification locating in a "nonattainment" area, even if it would impair

visibility in a mandatory class I Federal

area. Today's proposal would remedy

this with regard to visibility impacts by

covering all such sources irrespective of

their location.

D. Review of the Long-term Strategy.

The State will review its strategy in

consultation with the Federal Land

Manager and report its findings to the

public and the Administrator at least

every three years. We believe that the

periodic review of the long-term strategy

is an important part of assessing

reasonable progress toward the national

visibility goal. Because the visibility

program is new and evolving, it is

necessary to 1) take into account

advances in technology. 2] evaluate

progress toward the goal. 3) evaluate

specific program effectiveness and 4)

provide a reassessment of the

reasonableness of measures

incorporated into the long-term strategy.

In this review of the long-term strategy

the regulations would require certain

analyses, including: an assessment of

the progress achieved in remedying

existing impairment, an evaluation of

the change in visibility, an assessment

of the strategy's long-term ability to

prevent future impairment, and

identification of additional measures

that may be necessary to make

reasonable progress toward the national

goal.

E. Aew Source Review Requirements for

Visibility Impacts.

EPA's PSD regulations require that a

proposed major emitting facility or

major modification evaluate its potential

impact on visibility and, if the source

would cause an adverse impact on

visibility in a Federal class I area that

the State deny the permit.

Commenters on the Advance Notice

of Proposed Rulemaking noted that the

States need additional guidance for new

source review. We are therefore

proposing a definition of "adverse

impact' and clarifying certain

procedural relationships between the

Federal Land Manager and the State in

the review of new source impacts on

visibility in Federal class I areas.

Section 51.307 of the visibility

regulations specifies requirements the

States must meet during the new source

review process.

As the first'step in the review process

the State notifies the Federal Land

Manager of any potential new source

that may impact visibility in a Federal

class I area. The State and Federal Land

Managers then begin consulting with

each other, which consultation will

continue throughout the permitting

process. Where the PSD class I

increments are not violated, the Federal

Land Manager may demonstrate that the

source will have an adverse impact on

visibility in the Federal class I area. The

manager provides this demonstration to

the State which then either grants or

denies the permit application. If the

State agrees with the Federal Land

Manager's assessment that the source

will adversely impact visibility, then the

State will deny the permit. If the State

disagrees with the Federal Land

Manager's demonstration then it will

provide the Federal Land Manager with

a written explanation of its findings. The

State may also require the source to

monitor visibility at the proposed site as

part of the PSD permit application.

34765
Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

F. Conclusion

The immediate, principal benefit of

these regulations will be (1) the

reduction or elimination of impacts

reasonably attributable to specific

existing sources, and (2) clarification of

procedures for the review of new

sources. The focus of these regulations

will be principally in the West since

western areas have generally good

visibility now and are extremely

sensitive to degradation of their

.visibility. Also, the majority of the

mandatory class I Federal areas are

located, in the western United States.

The phased approach of these

regulations will limit the amount of

resources the States will have to expend

on revising their SIPs. Preliminary

indications are that a limited number of

existing major stationary sources in a

few States will have to retrofit controls.

The one major requirement applicable to

all 36 States would be the development

of a long-term strategy, which includes a

review of all new sources iripacting

visibility, for making reasonable

progress toward the national visibility

goal. EPA believes, however, that some

of the basic elements of an acceptable

strategy already exist within the

framework of other air pollution

programs. Therefore, the State will need

to examine the feasibility and efficacy

of only a few other measures to,

determine if they should or need to be

included in the long-term strategy.

It should be noted, however, that

although these regulations require a new

source review program, all States must

review new sources in accordance with

PSD regulations. The visibility

regulations neither subsume nor

eliminate the State responsibility under

the PSD program.

The other requirements of these

proposed regulations are primarily

procedural in nature and while they

must be addressed, we believe that the

regulations provide sufficient guidance

to preclude the expenditure of vast State

resources for compliance.

IV. REGULATORY / IMPACT

The Agency hag prepared a draft

regulatory impact analysis for review in

concert with these proposed rules. This

document is included in Docket No. A79-40 and may be obtained by writing

Control Programs Development Division

(MD-15), U.S. Environmental Protection

Agency, Research Triangle Park, N.C.

27711.

V. SOLICITATION OF COMMENTS

The Agency actively solicits

comments on all aspects of the proposed

regulations and guidelines.

These proposed rules are issued under

the authority granted in Sections 110,

114,16-169,169A, and 301 of the Clean

Air Act. 42 U.S.C. 7410, 7414, 7470-7479,

7491, and 7601.

Dated: May 15,1980.

Douglas Costle,

Administrator.

It is proposed to add a new Subpart P

to. Part 51, Title 4 of the Code of

Federal Regulations to read as follows:

Subpart F-Protection of Visibility

Sec.

51.30(Y Purpose and applicability.

51.301 Definitions.

51.302 Implementation control strategies.

51.303 Exemptions from control..

51.304 Identification of integral vistas.

51.305 Monitoring.

51.306 Long-term strategy.

51.307 New Source review.

Authority: 42 U.S.C. 7410, 7414, 7470-7479,

7491, 7601.

Subpart P-Protectfon of Visibility

§ 51.300 Purpose, and applicability

(a) Purpose. The primary purpose of

this Subpart is (1) to require States to

develop programs to assure reasonable

progress toward meeting the national

goal of preventing any future, and

renedying any existing, impairment of

visibility in mandatory class I Federal

areas which impiarment results from

man-made air pollution, and (2) to

establish procedures for new source

permit applicants, States, and Federal

Land Managers to use in conducting the

visibility impact analysis required at 40.

CFR 51.24(p) for new sources.

(b)'Applicability. (1) The provisions of

this Subpart are applicable to: (il each

State and has a mandatory class I

Federal area identified in 40 CFR Part

81, Subpart D, and (ii) each State in

which there is any source the emissions

from which may reasonably be

anticipate to cause or contribute to any

impairment of visibility in any such

area. (iii) Section 51.307 is applicable to

all States for the-purpose of new source

review under the Clean Air Act of

visibility impacts in Federal class I

areas.,

(2) The provisions of this Subpart,

except as provided for in subparagraph

(iii) above,' are applicable to the

following States unless the

Administrator later determines that the

provisions of subparagraph (1) above

are not met. Applicability of the

provisions of this Subpart to other

States shall become effective only upon

the determination of the Adminstrator

that either of the provisions in

subparagraph (1) above apply.

(i) Alabama

(ii) Alaska

(iii) Arizona

(iv) Arkansas

(v) California

(vil Colorado

(viij Florida

(viii) Georgia

(ix) Hawaii

(x) Idaho

(xi) Kentucky

(xii) Louisiana

(xiii) Maine

(xiv) Michigan

(xv).Minnesota

(xvi) Missouri

(xvii) Montana

(xviii); Nevada

(xix) New Hampshire

(xx) New Jersey

(xxi) New Mexico.

(xxii) North Carolina

(xxiii) North Dakota

(xxiv) Oklahoma

(xxvi Oregon

(xxvi) South'Carolina

(xxvii) South Dakota

(xxviii) Tennessee

(xxix) Texas

(xxx) Utah

(xxxi) Vermont

(xxxii) Virginia

(xxxiii) Virgin Islands

(xxxiv] Washington

(xxxv) West Virginia

(xxxvi) Wyoming,

§ 51.301 Definitions.

As used in this Subpart, all terms shall

have the meaning provided for in the

Clean Air Act except as defined heroin,

(a) "Existing Major Stationary

Source"-means any of the following

stationary sources of air pollutants

which was not in operation prior to

August 7, 196Z, or reconstructed after

that date, and was in existence on

August 7, 1977 and has the potential to

emit 250 tons per year or more of any

pollutant regulated under the Clean Air

Act:

(1) fossil-fuel fired steam electric

plants of more.than 250 million British

thermal units per hour heat input,

(2) coal cleaning plants (thermal

dryers),

(31 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, shlfuric, and nitric

acid plants,

(11) petroleum refineries,

(12) lime plants,

(13) phosphate rock processing plants,

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(14) coke oven batteries,

(15] sulfur recovery plants,

(16) carbon black plants (furnace

process),

(17) primary lead smelters,

(18) fuel conversion plants,

(19) sintering plants.

(20) secondary metal production

facilities.

(21) chemical process plants,

(22) fossil-fuel boilers of more than

250 million British thermal units 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.

(b) "Potential to emit" means the

capability at maximum design capacity

to emit a pollutant after the application

of air pollution control equipment.

Annual potential shall be based on the

maximum annual rated capacity of the

stationary source assuming continuous

year round operation. Enforceable

permit conditions on the type of

materials combusted or processed may

be used in determining the annual

potential. Fugitive emissions count, to

the extent quantifiable, for each existing

major stationary source in determining

the annual potential. Secondary

emissions are specifically excluded from

the determination of annual potential.

(c) "Fugitive Emissions" means those

emissions which do not pass through a

stack, chimney, vent, or other

functionally equivalent opening.

(d) "Secondary emissions" means

emissions which occur or would occur

as a result of the construction or

operation of an existing major

stationary source but do not come from

the existing major stationary source.

(e) "Stationary Source" means any

building, structure, facility, or

installation which emits or may emit

any air pollutant regulated under the

Clean Air Act.

(f) "Building, structure, facility, or

installation" means any grouping of

pollutant emitting activities which is

located on one or more contiguous or

adjacent properties and which is owned

or operated by the same person (or

persons under common control).

(g) "Best Available Retrofit

Technology (BART)" means an emission

limitation (including a visible emission

standard) based on the degree of

reduction achievable through the

application of the best system of

continuous emission reduction for each

pollutant which is emitted by an existing

major stationary source. The emission

limitation shall be established, on a

case-by-case basis, taking into

consideration the technology available,

the costs of compliance, the energy and

nonair quality environmental impacts of

compliance, any existing pollution

control equipment in use at the source,

the remaining useful life of the source,

and the degree of improvement in

visibility which may reasonably be

anticipated to result from the use of such

technology.

(h) "Reconstruction" will be presumed

to have taken place where the fixed

capital cost of the new component(s)

exceeds 50 percent of the fixed capital

cost of a comparable entirely new

source. However, any final decision as

to whether reconstruction has occurred

shall be made in accordance with the

provisions of 40 CFR 60.15(f](1-3). A

reconstructed source will be treated as a

new major stationary source for

purposes of this Subpart, except that use

of an alternative fuel or raw material by

reason of an order in effect under

Section 2(a) and (b) of the Energy

Supply and Environmental Coordination

Act of 1974 (or any superseding

legislation) or by reason of a natural gas

curtailment plan in effect pursuant to

the Federal Power Act, shall not be

considered reconstruction.

(i) "Fixed capital cost" means the

capital needed to provide all of the

depreciable components.

(j) "Visibility impairment" means any

humanly perceptible change in visibility

(visual range, contrast, coloration) from

that which would have existed under

natural conditions.

(k) "Natural Conditions" means the

visibility which would be expected to

occur in the absence of man-made air

pollution.

(1) "Significant impairment" means for

purposes of Section 51.303 visibility

impairment which, in the judgment of

the Administrator, interferes with the

management, protection, preservation,

or enjoyment of the mandatory class I

Federal area, including interference with

and impairment of the visitor's visual

experience. This determination shall be

made on a case-by-case basis taking

into account the extent, intensity, and

duration of the impairment, frequency

and time of occurrence of the

impairment, the correlation between

times of visitors use and access to the

mandatory class I Federal area and the

frequency of occurrence and timing of

natural conditions.

(m) "Integral vista" means the

perception from within the Federal class

I area of a specific historical, cultural, or

scenic landmark or panorama which is

located outside the boundary of a

Federal class I area, which vista is

important to the vistor experience of the

area or the fundamental purpose for

which the area was established and

preserved.

(n) "In operation" means engaged in

activity related to the primary design

function of the source.

(o) "Reasonably attributable" means

attributable by means of visual

observation or other monitoring

technique.

(p) "In existence" means 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 (i) begun, or caused to begin, a

continuous program of physical on-site

construction of the facility or 'ii) entered

into binding agreements or contractual

obligations, which cannot be cancelled

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.

(q) "Major emitting facility" and "major modification!* means "major

stationary source" and "major

modification" as defired in 40 CFR

51.24.

(r) "Adverse impact" means for

purposes of § 51.307 visibility

impairment which interferes with the

management, protection, preservation,

or enjoyment of the Federal class I area,

including interference with and

impairment of the visitor's visual

experience. This determination shall be

made on a case-by-case basis taking

into account the extent, intensity and

duration of visibility impairment, the

frequency and time of occurrence of the

impairment, the correlation between

time of visitors use and access to the

Federal class I area. and the frequency

of occurrence and timing of natural

conditions.

(s) "Federal Land Manager" means

the secretary of the department with

authority over any Federal class I area,

the Chairman of the RooseveltCampobello International Park

Commission, or their designated agents.

(t) "Agency" means the U.S.

Environmental Protection Agency.

§ 51.302 Implementation control

strategles.

(a) Plan Revision Procedures. (1) Each

State identified in § 51.300(b)(2) shall

submit, no later than nine months from

the date of promulgation of this

regulation, an implementation plan

revision for the purposes of meeting the

requirements of this Subpart.

(2)(i) The State, prior to adoption of

any implementation plan required by

this Subpart, shall conduct one or more

public hearings on such plan.

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(ii) Any hearing required by this

Subpart shall be held only after

reasonable notice, which shall include

at least thirty days prior to the date of

such hearing(s):

(A) Notice given to the public by

prominent advertisement in the region

affected announcing the data(s), time(s),

and place(s) of such hearing(s);

(B) Availability of each proposed plan

and all supporting documentation in at

least one location in each region to

which it will apply, and the availability

of each compliance schedule for public

inspection in at least one location in the

region in which the affected source is

located;

(C) Written notification to the

Administrator (through the appropriate

Regional Office);

(D) Written notification to each local

air pollution control agency in each

region to which the plan will apply;

(E) Written notification of each

affected Federal Land Manager;

(F) In the case of interstate impacts,

written notification to any other States

which may be affected as a result of

such plan; and

(G) A summary prepared by the

Federal Land Manager of the

conclusions and recommendations, if

any, on the proposed plan.

(3) Submission of plans as required by

this Subpart shall be conducted in

accordance witli the procedures in 40

CFR 51.5.

(4) The State shall include, as part of

the information available to the public

prior to public hearing(s) on such

proposed plan, evidence of consultation

with all affected Federal Land Managers

and their conclusions and

recommendations, if any, on the

proposed plan.

(5) The Administrator, prior to

proposed approval or disapproval of a

plan submitted under this Subpart, shall

consult with all appropriate Federal

Land Managers.

(b) State and Federal Land Manager

Coordination. (1) The State shall

identify, to the Director of the National

Park Service, the Director of the Fish

and Wildlife Service, the Chief of the

Forest Service and/or the Chairman of

the Roosevelt-Campobello International

Park Commission, as appropriate, in

writing and within 30 days of the date of

promulgation of these regulations, the

title of the official to which the Federal

Land Manager of any area listed in 40

CFR Part 81, Subpart D shall:

(i) Submit the list of integral vistas

that are to be afforded visiability

protection for the purpose of

implementing Section 51.304, and

(ii) Identify visibility impairment for

the purpose of implementing

subparagraph (4)(ii) below.

(2) The State, at least 60 days prior to

holding public-hearings on the plan,

shall consult in person with the affected

Federal Land Manager on all aspects of

the proposed plan revision for the

purpose of meeting the requirements of

this Subpart.

(3) The plan shall provide procedures

for continuing congultation between the

State and Federal Land Manager on the

implementation of the visiability

protection program required by this

Subpart.

(c) General Plan Requirements. (1)

The plan shall contain:

(i) A long-term (10-15 years) strategy,

including such emission limitations,

schedule of compliance, and other such

measures, as may be necessary to-make

reasonable progress toward the national

goal specified in § 51.300(a) in the

manner specified in § 51.306.

(i) An assessment prepared-after

consultation with the Federal Land

Manager and including such comments

as provided by the Federal Land

Manager, of the impairment of visibility

in each mandatory class I Federal area

and a discussion of how each element of

the plan addresses the impairment.

(2)(i) Any integral vista identified

under § 51.304(b) shall be protected

under the requirements of this Subpart

to the same extent as any mandatory

class I Federal area identified in 40 CFR

Part 81, Subpart D. The plan shall

identify all mandatory class I Federal

areas, including all integral vistas to be

protected.

(ii) The plan shall provide for the

protection of additional integral vistas

identified in accordance with § 51.304(c)

at the earliest opportunity, but in no

case less frequent than the time of the

periodic review of the long-term strategy

required by § 51.306(c).

(iii) The plan shall provide for the

protection of integral vistas identified in

accordance with § 51.304 (b) or (c) or (d)

for purposes of review of new major

emitting facilities and major

modifications as provided for in

§ 51.306(d).

(iv) The State need not provide

visibility protection of a vista identified

as integral by the Federal Land

Manager, if it demonstrates to the

satisfaction of the Administrator, that

such an integral vista has not been

identified in-accordance with "Criteria

for the Identification of Integral Vistas."

(3) The plan shall require each source to maintain control equipment required

by this Subpart and establish

procedures to ensure such control

equipment is properly operated and

maintained.

(4) Determination of BART. (i) The

plan shall include emission limitations

representing BART for each existing

major stationary source identified

according to the procedures in

subparagraph (ii) below.

(ii) The State, in consultation with the

appropriate Federal Land Manager,

shall analyze for BART each existing

major stationary source which may

reasonably be anticipated to cause or

contribute to visibility impairment in

any area identified in 40 CER Part 81,

Subpart D, which impairment Is

identified by the State, or by the

appropriate Federal Land Manager

within 90 days of promulgation of those

regulations. The Federal Land Manager

may recommend to the State for BART

analysis existing major stationary

sources suspected of causing or

contributing to visibility impairment In

the mandatory class I Federal area, The

State, in determining whether the

identified impairment is reasonably

attributable to an existing major

stationary source, shall consult with and

take into account the recommendations

of the affected Federal Land Manager

and the appropriate EPA Regional

Administrator, or his designated

representative, and shall provide, in

writing and at least 30 days prior to any

public hearing on the plan, all

supporting documentation on any

existing major stationary source not

analyzed for BART as recommended by

the affected Federal Land Manager or

appropriate EPA Regional

Administrator.,

(iii) If the State determines that

technological or economic limitations on

the applicability of measurement

methodology to a particular existing

major stationary source would make the

imposition of an emission standard

infeasible it may, in consultation with

the Federal Land Manager, instead

prescribe a design, equipment, work

practice, or other operational standard,

or combination thereof, to require the

application of BART. Such standard, to

the degree possible, is to set forth the

emission reduction to be achieved by

implementation of such design,

equipment, work practice or operation,

and shall provide for compliance by

means which achieve equivalent results,

(iv) Emission limitations set under this

paragraph for fossil-fuel fired generating

plants having a total generating capacity

in excess of 750 megawatts shall be

determined due to "Proposed Guidelines

for Determining Best Available Retrofit

Technology for Coal-fired Power Plants

and Other Major Stationary Sources."

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(v) The plan shall require that each

existing major stationary source

required to install and operate BART do

so as expeditiously as practicable but in

no case later than five years after plan

approval.

(vi) The plan shall require that each

existing major stationary source

required to install and operate BART

install continuous emission monitoring,

as applicable, in accordance with 40

CFR Part 51, Appendix P.

§ 51.303 Exemptions from control.

(a)(1) Any existing major stationary

source required by action under § 51.302

to install, operate, and maintain BART

may apply to the Administrator for an

exemption from that requirement.

(2) An application under this Section

shall include all available

documentation relevant to the impact of

the source's emissions on visibility for

any area listed in 40 CFR Part 81,

Subpart D, and a demonstration by the

existing major stationary source that it

does not or will not by itself or in

combination with other sources emit

any air pollutant which may be

reasonably anticipated to cause or

contribute to any significant impairment

of visibility in any mandatory class I

Federal area identified in 40 CFR Part

81, Subpart D.

(b) Fossil-fuel fired power plants with

a total generating capacity of 750

megawatts or more may receive an

exemption from BART only after

demonstration to the satisfaction of the

Administrator that such source is

located at such a distance from all areas

listed in 40 CFR Part 81, Subpart D that

such power plant does not or will not,

by itself or in combination with other

sources, emit any air pollutant which

may reasonably be anticipated to cause

or contribute to significant impairment

of visibility in any such area.

(c) Application under this Section

must be accompanied by written

concurrences from all affected States.

(d) The existing major stationary

source shall provide for prior written

notice to all affected Federal Land

Managers of any application for

exemption under this Section.

(e) The Federal Land Manager may

provide an initial recommendation on

the disposition of such application. Such

recommendation, where provided, shall

be part of the exemption application.

This recommendation shall not be

construed as the concurrence required

under subparagraph (h) below.

(f) The Administrator, within 90 days

of receipt of an application for

exemption from control, shall provide

notice and opportunity for public

hearing on the application.

(g) After notice and opportunity for

public hearing, the Administrator may

grant or deny the exemption. For

purposes of judicial review, final EPA

action on an application for an

exemption under this Section shall not

occur until EPA approves or disapproves

the State Implementation Plan revision.

(h) An exemption granted by the

Administrator under this Section shall

be effective only upon concurrence by

the appropriate Federal Land Manager

with the Administrator's determination.

§ 51.304 Identification of integral vistas.

(a) The Federal Land Manager may, in

accordance with "Criteria for the

Identification of Integral Vistas",

identify to the State integral vistas to be

afforded visibility protection.

(b) Integral vistas identified within 90

days from the date of promulgation of

these regulations shall be subject to

§ 51.302(c)(2)(i).

(c) Integral vistas identified more than

90 days from the date of promulgation of

the regulations shall be subject to

§ 51.302(c)(2)(iil.

(d) Integral vistas identified prior to

the calendar year in which a complete

new source permit application is filed

shall be subject to § 51.302(c)(2)(ii).

(e) The State may identify such

additional integral vistas, within its

boundaries, as it deems necessary and

appropriate.

(f0 The provision for identification of

integral vistas for mandatory class I

Federal areas under paragraphs (c) and

(d) above shall not be effective after

December 31,1985.

§ 51.305 Monitoring

(a) The State, in consultation with the

Federal Land Manager. shall include in

the plan a strategy for evaluating

visibility in the mandatory class I

Federal areas by visual observation or

other monitoring techniques. Such

strategy shall take into account current

and anticipated visibility monitoring

research and the availability of

appropriate techniques for monitoring

visibility and such guidance as is

provided by the Agency.

(b) The plan shall provide for the

consideration of available visibility data

and shall provide a mechanism for its

use in BART analyses, new source

permit decisions, and other actions

under the plan.

§ 51.306 Long-term strategy.

(a)(1) Each plan shall include a longterm (10-15 years) strategy for making

reasonable progress toward the national

goal specified in Section 51.300(a).

(2) A long-term strategy shall be

identified for each area listed in 40 CFR

Part 81. Subpart D.

(3) The plan shall set forth with

reasonable specificity why the long-term

strategy is adequate for making

reasonable progress toward the national

goal.

(b) The State. in developing a longterm strategy shall consider any plans

and goals provided by the Federal Land

Manager for the protection and

enhancement of visibility in the

mandatory class I Federal area.

(c)(1) The plan shall provide for

periodic review and revision, as

appropriate, of the long-term strategy

not less than every three years. This

review shall include consultation with

the appropriate Federal Land Manager

and a report to the public and the

Administrator on progress toward the

national goal. (2) This report shall include:

(i) An assessment, prepared after

consultation with the Federal Land

Manager and including any evaluations

as provided by the Federal Land

Manager under § 51.302(c)(4)(ii] of the

progress achieved in remedying existing

impairment:

(ii) An evaluation, prepared after

consultation with the Federal Land

Manager and including any evaluations

provided by the Federal Land Manager,

of any change in visibility since the last

such report, or, in the caseof the first

report, since plan approval:

(iii) A reassessment of the ability of

the long-term strategy to prevent future

impairment of the mandatory class I

Federal area;.

(iv) An identification of additional

measures, including the need for SIP

revisions, that may be necessary to

assure reasonable progress toward the

national goal;

(v) An assessment of the progress

achieved in implementing BART and

meeting other schedules set forth in the

long-term strategy; and

(vi) An assessment of the impact of an

exemption granted under Section 51.303.

(d)(1) The long-term strategy shall

provide for review of the impacts on

visibility for any area listed in 40 CFR

Part 81, Subpart D of all new major

emitting facilities and major

modifications.

(2) This review of new major emitting

facilities and major modifications shall

be in accordance with such guidance as

is provided by the Agency.

(e) The long-term strategy shall

include a review of the impacts on

visibility of all pollutants regulated

under the Clean Air Act at such times,

as determined by the Administrator, as

new technology becomes reasonably

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available for the control of the pollutant

for each existing major stationary

source causing or contributing to

impairment in ank mandatory class I

Federal area which impact is reasonably

attributable to that source. Where

control representing BART has not been

previously required for a pollutant,

reanalyzed at the source, the plan shall

require the imposition of such control as

indicated by this reanalysis. (f) The State in developing the longterm strategy shall consider, at a

minimum, the following measures for

incorporation into the long-term

strategy:

(1) Emission reductions due to ongoing

air pollution control programs,

(2) Additional emission limitations,

and schedules for compliance, -

(3) Mitigation of impacts of

construction activities,

(4) Source retirement and replacement.

schedules,

(5) Smoke management techniques for

agricultural and forestry management

purposes, and

(6) Enforceability of emission

limitations and control measures.

(g) The plan shall discuss the reasons

why the above and other reasonable"

measures considered in the development

of the long-term strategy were or were

not adopted as part of the long-term

strategy.

(h) The plan shall include schedules

for the implementation of the elements

of the long-tem strateg y.

iI) The long-term strategy shall take

into account the effect of new sources;

and, for existing sources, the costs of

compliance, the time necessary for

compliance, the energy and nonair

quality environmental impacts of

compliance, the remaining useful life of

any affected existing source and

equipment therein, and the degree of

improvement in visibility anticipated to

result from control.

§ 51.307 New source review.

(a) For purposes of new source review

under the Clean Air Act, the State plan

shall provide for written notificatfon of

all appropriate Federal Land Managers

of any proposed new major emitting

facility or major modification that may affect visibility in any Federal class I

area. Such notification shall be made in

writing and within 30 days of receipt of

and at least 30 days prior to public

hearing by the State on the application

for permit to construct. Such notification

shall include an analysis of the

anticipated impacts on visibility on the

Federal class I area.

(b) The plan shall provide for

consideration of any demonstration by a

Federal Land Manager, provided Within

30 days of the notification required by

paragraph (a) above, that such proposed

major emitting facility or major

modification will have an adverse

impact on visibility in any Federal class

I area, incliding any integral vista

identified in accordance with paragraph (h) below. Where the State finds that

such a demonstration does not

adequately support a determination by

the State that an adverse impact will

result, the State shall provide the

Federal Land Manager with such

analyses and discussion as supports the

State's findings. This must be submitted

to the Federal Land Manager in writing

and at least 30 days prior to any public

hearing on such application or, if there is

no public hearing, 30 days prior to

issuance of the permit.

(c) Where the State, in consultation

with the Federal Land Manager,

determines that an adverse impact on

visibility in any Federal class I area will

result from a new major emitting facility

or major modification, the State shall

not issue the permit. (d) The State plan shall provide for

the opportunity for review, by the

public, of any new major emitting

facility or major modification that may

have an impact on visibility in any

Federal class I area.

(e) The plan shall provide for

consultation by the State with the

appropriate Federal Land Manager on

any application for a new source review

permit submitted by any major emitting

facility or major modification that may

affect visibility in any Federal class I

area.

(f) The State may, after considering

the recommendation of the appropriate

Federal Land Manager, require

monitoring of visibility in the Federal

class I area near the proposed new

major emitting facility or major

modification for such purposes and by

such means as the State deems

necessary and appropriate.

(g) The plan shall provide for an

opportunity for consultation, prior to

issuance of any new source review

permit, with the Agency where a dispute

between the Federal Land Manager and

the State exists on the issuance of such

permit.

(h) The plan shall provide for the

protection of integral vistas for Federal

class -1 areas identified in accordance

with "Criteria for the Identification of

Integral Vistas" as follow:

(1) For Federal class I areas so

designated as of the date of

promulgation of these regulations.

(i) Integral vistas identified prior to

the calendar year in which a complete

new source permit application is filed,

and

(iH) Identified prior to December 31,

1985.

(2) For Federal class I areas

designated after the date of

promulgation of these regulations, as

identified at the time of reclassification

of such area to class I.

(3) The State need not provide

visibility protection of a vista identified

as integral by the Federal Land

Manager, if it determines that such

integral vista has not been identified In

accordance with "Criteria for the

Identification of Integral Vistas."

Supplemental Statement of Basis and

Purpose 1

The following discussion supplements

various aspects of the basis and purpose

for EPA's proposed regulations on

visibility protection.

1. The phased approach-Congress

required that EPA promulgate

regulations to (a) assure reasonable

progress toward meeting the national

visibility goal set out in Section

169A(a)(1), (b) require BART analyses

for existing major stationary sources,

and (c) require development of a longterm strategy [Section 169A(a)(4), (b)(2)].

Congress, however, did not address the

problem of visibility protection from a

scientific perspective since, at the time

of the Clean Air Act Amendments of

1977, there was scant technical and

virtually no regulatory experience with

the protection of visibility. Recognizing

this, Congress left the appropriate

techniques and methods for

implementing the visibility protection

program of Section 169A and, indeed,

the precise definition of the problem to

be addressed to EPA's study and

regulations [Section 169A(a)(2), (a)(3),

and (b)(1)]. EPA's subsequent study of

visibility impairment revealed that manmade visibility impairment manifests

itself in various forms. Some of these

forms can be attributed to specific

sources. EPA has determined, however,

that there exist at present limitations In

source/impairment relationships which

make it impossible in many cases,

particularly for multi-source impacts, to

predict confidently that a given amount

of control will yield a specific degree of

improvement in visibility. EPA is thus

proposing, as anticipated by the

Advanced Notice of Proposed

Rulemaking (ANPR), a "phased

approach" to these regulations.

This phased approach will permit

State control agencies to focus initially

on the most clearly defined cases of

existing impairment and on strategies to

prevent future impairment, while

'Note. This statement will not appear In thn Code

of Federal Regulations.

34770
Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

allowing evolution of additional

guidelines and control strategies as

scientific understanding of source/

impairment relationships improves. EPA

received support for this approach in

comments from representatives of both

environmental and industdial groups.

Even though the Agency has referred

to the proposed rules as Phase I the

basic structure of the regulations

provided today will remain consistent

for all phases. These regulations

function as the basic framework from

which this present program can be

implemented and future phases can be

incorporated. In other words, the basic

plan requirements will remain

consistent while only the elements

which define the scope of Phase I will

change in response to advances in

technical kdowledge.

2. General definitions-As explained

below several definitions are consistent

with the proposed PSD regulations (44

FR 51924). Where modifications are

made in the final promulgation,

expected shortly, these definitions will

be changed accordingly.

A. "'Existing major stationary

source'--Section 169A(g](7] defines the

term "major stationary source";

however, to avoid confusion with the

PSD regulations, EPA has defined the

term "existing major stationary source"

which includes the age limitations

specified in Section 169A(bJ[2)(A). The

proposed definition of "existing major

stationary source" follows the definition

in Section 169A(g)(7). It is limited to

specific source categories with the

potential to emit 250 tons or more per

year of any pollutant regulated under

the Act. The meaning of Section

169A(g)(7)'s definition of "stationary

sources with the potential to emit 250

tons per year of any pollutant" depends

on the interpretation of "potential to

emit" and "stationary source." Since

Congress used similar language in

Section 169(1) without indicating a

change in meaning, it is appropriate to

examine what Congress intended in

Section 169(1), in interpreting these

terms [H. Rep. No. 95-564,95th Cong.,

1st Sess. 155 (1977)]. In Alabama Power

v. Costle, 13 ERC 1993, the Court has

already examined this and the result of

this interpretation is the basis for

today's proposed definition of "existing

major stationar, source" as defined in

Section 169A(g)(7). Any change in EPA's

proposed interpretation of Section 169(1)

for purposes of PSD may affect the

definition proposed today for visibility unless legal authority and differing

program objectives would support

different definitions for each program.

Specifically, today's proposal defines

"potential to emit" as "the capability at

maximum design capacity to emit a

pollutant after the application of air

pollution control equipment." This

definition parallels that proposed in the

PSD regulations on September 5,1979

(44 FR 51924). "Potential to emit" would

be calculated on the assumption that air

pollution control equipment

incorporated into the design of a source

will control emissions in the manner

reasonably anticipated when the

calculation is made. Therefore, whether

a source is an existing major stationary

source might depend primarily on what

control equipment has been

incorporated in its design.

The definition of "potential to emit"

also states: "Annual potential shall be

based on the maximum annual rated

capacity of the stationary source

assuming continuous year round

operation.

Enforceable permit conditions on the

type of materials combusted or

processed may be used in determining

the annual potential." This is consistent

with the Alabama Power decision which

calls for calculation of a source's "potential to emit" based on its "full

design capacity" [13 ERC at 20031.

However, this calculation could reflect

enforceable permit conditions on the

amount of materials combused or

processed. Also, again consistent with

EPA's PSD proposal, "Secondary

emissions" would not count in

determining a source's potential to emit.

In determining whether a source, as

defined in Section 169A(g](7), has the

potential to emit 250 tons per year of a

pollutant, EPA proposes to take into

account all of the emissions of that

pollutant-even fugitive emissions, at

least to the extent that they are

reasonably quantifiable. EPA believes

that there is no reason why a source of a

particular pollutant should escape the

BART requirement merely because the

emissions of the pollutant are fugitive,

when a source emitting the same

pollutant might have to install BART if

the emissions are vented through a stack

or other opening. In both cases, the

emissions could cause or contribute to

visibility impairment.

In Alabama Power, the Court said

fugitive emissions could not be counted

in determining whether a source is

major unless EPA issues an appropriate

legislative rule [13 ERC at 2017]. Today's

proposal, therefore, explicitly states that

fugitive emissions shall be included in

determining the potential to emit for

each of the source categories listed in

Section 169A(g)(7). Consistent with the

Court's holding, the proposal defines

"fugitive emissions" as "those emissions

which do not pass through a stack,

chimney, vent. or other functionally

equivalent opening."

As for "stationary" in Alabama

Power, the Court said that the definition

of "stationary source" in Section

111(a](3) controls the meaning of that

term when used in the PSD part of the

statute [13 ERC at 20381.

The proposed regulations would

define "building. structure, facility, or

installation" as "any grouping of

pollutant-emitting activities which is

located on one or more contiguous or

adjacent properties and which are

controlled by the same person (or by

persons under common control)." This

definition would be important in

determining whether additions to, or

reconstructions of, an existing

stationary source in operation before

August 7,1962 would be subject to the

BART requirement. For example, a

fossile-fuel fired steam electric plant

(power plant) of more than 250 million

Btu an hour heat input may have been

"in operation" before August 7,1962, but

also may have added two boilers in

1967. These two boilers would be

considered an "existing major stationary

source" if individually or together they

had the potential to emit 250 tons a year

or more of any pollutant, and if they

were of more than 250 million Btu heat

input since "source" would, in effect,

mean any grouping of pollutant-emitting

activities at one site and under common

control. The two boilers would also be

an "existing major stationary source" if

they were "reconstructed." The

proposed definition of "reconstruction"

is consistent with that in 40 CFR 60.15,

dealing with new source performance

standards..

In Alabama Power, the Court stated

that Congress gave EPA latitude to

define the component terms of "stationary source" to reflect the

purpose and structure of the program for

which the definition is intended [13 ERC

at 2040]. The purpose of the visibility

regulations is to assure reasonable

progress toward the remedying of any

existing and the preventing of any future

impairment of visibility in certain class I

areas. Congress structured the program

so that the BART requirement would be

an important mechanism for achieving

one part of that purpose, the remedying

of existing visibility impairment.

Although the BART analysis itself

considers the remaining useful life of the

source, cost. and other factors, Congress

decided that EPA should not be required

by statute to require BART for all

sources regardless of age as a minimum

condition for SIP approval. Where a source has had an addition

or reconstruction with the potential to

emit 250 tons a year of a pollutant

34771
Federal Register / V ol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

between August 7, 1962 and.August-7,

1977, EPA believes that the implicit

concern of Congress regarding -

remaining useful life does not apply to

the new components at the site and-that;

therefore, Congress did not intend to "grandfather" such additions or

reconstructions. Such a "grandfathering"

approach would be without reason and

could seriously undermine progress

toward remedying existing visibility

impairment. Indeed; preliminary EPA

data show that a source cited by'

Congress in the legislative history of the

visibility provisions as causing existing

visibility impairment in the Grand

Canyon would escape BART review

entirely under such a grandfathering approach, even though nearly half its

boiler capacity was, added since August

7, 1962.

On this basis,,EPA believes both the

proposed definition of "reconstruction"

and "building, structure, facility, or

installation" are authorized by the Act

and are vital to achieving, Congress'

purpose.

B. "In existence' "and 'in operation'-

The Section 169A requirement for a

BART-analysis applies only to a major

stationary source "in existence"-on

August 7, 1977 and which, on that date,

had not been "in operation" for more

than 15 years. EPA has proposed to

define "in existence" as meaning "that

the owner or operator has obtained all

necessary preconstruction or air quality,

laws or regulations and has either (i)

begun or caused to begin, a continuous

program of physical on-site construction

of the facility or (i) entered. into binding

agreements or contractual obligations

which cannot be cancelled or modified

without substantial loss to the owner or

operator, to undertake a program of

construction of the facility to be

completed in allowable time." The

proposal would define "in operation!' as

meaning "engaged in activity related to

the primary design function of the

source." EPA intends a broad

interpretation of "primary design

function"; thus for example, the

production of coke in a steel plant is

related to its-primary design function,

just as is the production of steel.

EPA believes the Act requires that

each existing major stationary source

that started operation after August 7,

1962 be potentially-subject eitherto the

BART requirements or to the PSD

requirements, as set out in the Clean Air

Act Amendments of 1977. EPA

specifically solicits comment on whether

this interpretation is correct and,

whether the proposed definition of "in

existence" would serve that

interpretation.

C: Reasonably attributable-The

proposed-regulations would define "reasonably attributable" to mean

attributable byvisual observationor

other.monitoring techniques. This is the

mechanism thatoimplements the first

phase of the visability protection

program. Thus, ifan existing major

stationary source- emits any airpollutant:

whiih-can normally be anticipated to

cause-or contribute-to any impairment in

an area which impairment can be

reasonably attributable to such a source

onlykby anal-ytical techniques, (i.e.,

modeling] it will not be subject to a

BART analysisin this first phase of the

visibility protection program. This

definition will likely change in later

phases to take advantage of any

improvements in'understanding of the

source/impairment relationship for

visibility: EPA specifically solicits

comment on this approach to

implementing the BART requirement,

including whether there are

circumstances where current modeling

techniques could be employed to

indicate that impairment is- reasonably

attributable to a source.

(3)'Visibility impafrment-EPA is

proposing to define "visibilityimpairment" as any humanly perceptible

change in visibility (visual range,

contrast, and coloration) from that

which would have existed under natural - conditions.

The first part of this definition would

require that the impairment be humanly

perceptible. EPA, in the ANPR, solicited

comment on three separate approaches

to treating perceptibility as an element

of visibility, impairment. These were (1)

the smallest measurable, change in

visibility which is detectable by

instruments; (2)-impairment which is

perceptible to humans; and (3) a visually

perceptible impairment which is

considered significant or adverse, There

were no comments received in support

of the first approach. Several

commenters supported the second

approach, which EPA is today

proposing, because the Act intends for

visibility protection to be primarily

directed at preserving the enjoyment

and benefits of good-visibility for

people.

The restriction to perceptibility, as

maybe observed by humans, is critical.

As noted, varying conditions can affect

the perceptibility of a specific impact.

Additionally, available instrumentation

is more sensitive to contrast and

reduction in visual range than is the

human-eye. The Agency feels that the

interpretation used in these regulations

is correct based upon the Congressional

concern regarding visibility. The intent

of Congress in including Section 169A in

the Act was. to protect the public's

enjoyment of the class I area and, thus,

impacts on visibility which cannot be

perceived by a human observer should

not be considered impairment in the

context of the national visibility goal. As

discussed below, the proposed

regulations charge the appropriate

Federal Land Managers with identifying'

impairment in an area and EPA expects

that, in doing so, the Federal Land

Managers will keep the public's

enjoyment of that area in mind.

Also, several commenters suggested

that the third approach to impairment

suggested by the ANPR was the most

appropriate because, they argued,

Congress intended to remedy only thatimpairment that is considered

significant or adverse. EPA believes

Congress, in declaring the national goal

of "the prevention of any future, and the

remedying of any existing impairment of

visibility" (emphasis added), clearly did

not intend that the visibility proteotion

program ber directed at only those

impacts considered significant or

adverse. If this had-been the intent,

Congress clearly could have stated the

national goal as the prevention of

significant future impairment and the

remedying of significant existing

impairment. This it did not do. In the

provisions of Section 169A which

provide guidance onthe nature of the

regulations EPA should promulgate, the

concept of "significant impairment" is

mentioned only in connection with an

exemption fiom BART [Section 169A(c)].

Clearly, it would be nonsensical for

Congress to provide an exemption based

on a lack of significant visibility.

impairment if, by- definition, visibility

impairment could not be other than "significant."

The second part of the proposed - definition includes "contrast," as well as "visual range" and "coloration" as

expressions of visibility impairment.

EPA believes virtually all manifestations

of visibility impairment can be

expressed by one of these terms.

Contrast, as discussed in the Report to

Congress, is generally a much more

easily understopd'indicator of visibility

impairment and is mathematically

interrelated to visual range. One can

often perceive and express contrast

changes in visibility more easily than

changes in visual range or coloration.

Preliminary studies (see Protecting

Visibility: An EPA Report to Congress)

indicate that a contrast change in the

range of 0.02 to 0.05 is capable of being

perceived by a human observer. The

variation expressed is a result of

variability in observer sensitivity and

34772.
Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

spacing of contrasting objects.

Additionally, reductions in visual range

as small as 5% may be perceptible to the

human observer. Where the impairment

is in the form of a coherent plume, the

above values will not necessarily be

limiting. In this case, other factors, such

as a substantial difference in color

between the sky and plume, may

heighten the viewer's ability to perceive

the contrast change. Current efforts to

describe visibility impairment in terms

of coloration are promising but are, as

yet, incomplete. While strict values for

contrast and visual range reduction

have not been and may never be

established, the vicinity of the lower

bounds on perceptibility can be

estimated. The final determination is,

however, related directly to whether the

effect could be observed by man. It is

important to note that the Agency is

continuing to evaluate visibility data

and that data obtained from studies

conducted in 1979 indicate a range of

0.01 to 0.04 contrast change may be

perceptible. Additional studies are being

conducted in 1980 to confirm past

research.

One commenter on the ANPR argued

that Section 169A(g)(6), which says "the

terms 'visibility impairment' and

'impairment of visibility' shall include

reduction in visual range and

atmospheric discoloration," cannot be

expanded to include "contrast." This

argument contradicts the plain meaning

of the statutory language. The use of the

words "shall include" in Section

169A(g)(6), clearly indicates that EPA

must treat "visibility impairment" as

including "reduction in visual range and

atmospheric discoloration." Just as

clear, however, is Congress' intent that

Section 169A(g)(6) be inclusive, not

restrictive. Congress was explicit when

it intended the statutory definition to be

restrictive, as shown by the definitions

in Section 169A(g) (3), (4), (5), and (7).

That Congress gave EPA discretion to

clarify the meaning of visibility

impairment is also supported by Section

169A[a)(3)(A). That section requires EPA

to study and report to Congress "on

available methods for implementing the

national goal." That report must include

recommendations for.

"(A] methods for identifying,

characterizing, determining, quantifying,

and measuring visibility impairment in

[mandatory class I Federal areas]."

This language unmistakably indicates

Congress' intent that EPA has discretion on how broadly ":visibility impairment"

should be defined to effectuate the

national goal. This discretion was not

solely for purposes of the Report to

Congress. Section 169A(b)(1) says the

visibility regulations shall "tak[el into

account the recommendations" in the

Report to Congress. EPA's careful study

of the visibility problem, including that

contained in the Report to Congress,

supports the definition of "visibility

impairment" proposed today and,

therefore, it is authorized.

Finally, the definition of impairment

restricts impairment to that resulting

from human activities, i.e., impairment

which would not have existed under

natural conditions. While visibility may

be degraded as a result of natural

causes, Congress clearly limited the

scope of the national visibility goal by

including only "impairment [which]

results from manmade air pollution:'

Although the determination of natural

conditions would be difficult and is to

some extent dependent on the

monitoring research being done, as

discussed elsewhere in this notice, EPA

believes such a determination will not

be critical to some aspects of the first

phase of the program. If impairment can,

,by visual means, be reasonably

attributed to a source, the determination

of whether the impairment is man-made

involves no precise measurement of

natural conditions.

The remedying of existing impairment

will require the control of certain

existing sources and, therefore, in some

circumstances it may be appropriate to

evaluate the potential improvement in

visibility against existing conditions.

However, as we approach the national

goal the impact of new sources will

become more perceptible and since new

sources are expected to last longer than

existing sources their impacts should be

evaluated against natural conditions

which would exist in the absence of

man-made impairment. It will therefore

be important to attempt to provide some

assessment of natural and existing

conditions. Although such an

assessment will be difficult, one method

of achieving this would be through an

analysis of available information to

determine the best visibility that

currently exists in an area. In making

this assessment the State should

recognize that frequently visibility is

dependent upon seasonal factors. As

such, available information should be

subdivided into seasonal patterns. The

seasonal best visibility would then be

chosen on the basis of seasonal

variations in naturally occurring

phenomena which would then represent

natural conditions. Of course one

valuable method for obtaining data is

through visibility monitoring. Although

the Agency is currently evaluating monitoring techniques, these proposed

rules would require the State to dcvelop

a monitoring strategy which would

include a strategy for assessing natural

conditions and provide for the

reevaluation of natural conditions.

based upon new data for the purpose of

assessing new source impacts on

visibility.

(4) Significant impairment-The

proposed regulations define significant

impairment as "visibility impairment

which, in the judgment of the

Administrator, interferes with the

management, protection, preservation,

or enjoyment of the mandatory class I

Federal area, including interference with

and impairment of the visitor's visual

experience. This determination shall be

made on a case-by-case basis taking

into account the extent, intensity, and

duration of the impairment frequency

and time of occurrence of the

impairment, the correlation between

times of visitor use and access to the

mandatory class I Federal area and the

frequency of occurrence and timing of

natural conditions."

The Agency believes that while the

national goal calls for "the prevention of

ony future, and the remedying of any

existing impairment in visibility"

(emphasis added], by establishing

exemptions in Sections 169A(c](I] and

169A(c](2] of the Act, Congress clearly

recognized that there may be

circumstances where impairment may

exist but, due to the circumstances

surrounding that impairment, reduction

or elimination of the impairment may

not be appropriate.

Secondly, in determining whether

impairment is significant, the

Administrator will evaluate:

(a) How frequently the impairment

occurs,

tb) The extent or degree of the

impairment.

(c) The time at which the impairment

Occurs,

(d) The intensity of the impairment,

;nd

(e) The duration of the impairment.

There are clearly cases where

impairment may exist but does not

interfere with the public's enjoyment of

the mandatory class I Federal area as

pointed out by several commenters. An

example may be where the impairment

occurred only when visitor use was

negligible or nonexistent. Since the

intent of Congress, through Section

169A, is to protect the public's

cnijoyment of these areas, impairment

%hich does not affect public enjoyment

should not be considered significant.

The Administrator will consider the

recommendations of the appropriate

Federal Land Manager since the Federal

Land Manager has expert knowledge of

an area.

34773
Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

(5) Reanalysis of BART-Proposed

Section 51.306(e) would require that

BART be reanalyzed at such times as

the Administrator determines that new

technology exists for the control of a

pollutant having an impact on visibility.

The basic purpose of this requirement

for reanalysis is to ensure the maximum

opportunity for the consideration of new technology for the control of visibility

impairment.

Where a source has had to retrofit

controls for a pollutant as a result of a BART analysis, EPA believes that there

may be instances where the source

should not later be subject to a different

requirement for retrofit control of that

pollutant. However, EPA believes that, as a part of its long-term strategy, a

State should reevaluate each existing

major stationary source for the

applicability of new controls for all

pollutants. Since the State would be free

to require additional controls for a

pollutant even where BART has

previously been required for that

pollutant the State may desire to do so as part of its long-term strategy. Where

the control representing BART has not

been previously required for a pollutant

reanalyzbd at the source, the State must

require the imposition of such control as indicated by this reanalysis. This

reanalysis must also include a

congideration of in-place controls.

EPA recognizes that a broader "grandfathering" of sources which have

applied BART controls could insulate

such sources from future BART

requirements for a pollutant even if the

previous BART control was minimal. For

example, a power plant would have an incentive to modify its burners to reduce

emissions of NO. in response to a BART

analysis in order to escape further

BART requirements for NO. even though

much more effective control technology

may become available in the future.

EPA, thus, specifically invites comments

on this and other approaches to the

problem. Several alternatives

commenters may wish to address are: (1) Requiring reanalysis of sources

and imposition of controls on pollutants

regardless of previous BART

determinations.

(2) Requiring automatic, periodic

review of all BART determinations;

(3) Requirng reanalysis of sources and

implementation of controls as a

reasonable progress measure;

(4) Requiring reanalysis of BART for

all pollutants during each new phase of

regulatory development; and

(5) Not requiring reanalysis.

Commenters are encouraged to

include a discussion of the legal and

policy basis for any alternatives

recommended.

6. Visability monitoring-Many

commenters addressed the issue of

visibility monitoring. Many of these

comments dealt with whether EPA, the

State, or the Federal Land Manager

should have the primary responsibility

for visibility monitoring. Today's

proposal recognizes the need for

cooperation and consultation in the area

of visibility monitoring, not only in the

area of instrumentation but in the use

and interpretation of data obtained.

Although EPA will be continuing

research in the area of visibility

monitoring, primarily for the purpose of

developing EPA-approved standardized

("reference method") visibility

monitoring techniques and data

collection for Validation of analytical

techniques, this proposal would require

the consideratin of visibility monitoring

and data in two aspects. The first of

these areas is the development of a

visibility monitoring strategy. The

Agency believes that the use of

available monitoring data and the

collection of supplemental data can

serve the State well in preparation of

the SIP revision and the assessment of

the long-term strategy's ability to make

reasonable progress toward the national

goal. In this strategy the State is

expected to discuss the use of visual

observations and other monitoring

techniques as decided upon by the State

after consultation with the Federal Land

Manager. It is anticipated that the

supervisor of the particular mandatory

class I Federal area will be able to

provide some assessment over a period

of time as to the impairment that exists

or may not exist in the area. Where

agreements of this type can be reached

they should be incorporated into the

monitoring strategy.

The second aspect of visibility

monitoring is the consideration of the

need for monitoring associated with a

proposed major emitting facility or

major modification. The permitting

authority should consult with the

Federal Land Manager on the individual

decision and take into account available

visibility monitoring data and the need

for additional monitoring data. The

authority can require new sources

collect such data under the auspices of

the PSD program. Where necessary,

additional assistance can be obtained

through the EPA Regional Offices.

Though the Agency is not prepared to

promulgate "reference methods," there

is substanial info'mation available

regarding visibility monitoring methods

currently in use. A discussiion of

techniques currently in use and under

evaluation for visibility monitoring may

be found in "Protecting Visibility: An

EPA Report to Congress," Interim

guidance on monitoring is expected to

be released by the Agency in the near

future. After appropriate public review

and comment, the interim guidance will

be incorporated by reference in the

promulgated visibility regulations. A

Federal Register notice will announce

the document's availability.

7. Visibility modeling-Almost all

commenters on the issue of visibility

modeling agreed with the position set

forth in the ANPR that visibility models

should be used only with a recognition

of their limitations. However, a

substantial number of commenters

expressed the opinion that limitations

on visibility models were so substantial as to totally preclude their use. As noted

in the ANPR, the Agency is attempting

to validate several analytical techniques

for the purpose of addressing visibility

impacts. The Agency believes that

although these techniques are currently

unvalidated, they can provide valuable

input in the decision-making process

when combined with common sense interpretations of all available data. The

Agency believes that the proposed

regulations recognize both the

limitations and the presence of these

analytical techniques.

EPA is currently attempting to

validate these techniques through

various research programs, and will

make available for public review and

comments these results as soon as they

are available. Additionally, the Agency

is preparing interim guidance on the usa

of analytical techniques and will also

make this available for review and

public comment.

Results obtained from visibility

analytical techniques may be useful In

addressing the impacts of single sources

on visibility in two parts of this

proposed rule. The first of these Is the

BART guideline, the use of which Is

optional except for power plants with a

generating capacity in excess of 750

megawatts. This guideline suggests the

use of analytical techniques to estimate

the degree of improvement anticipated

from control of certain pollutants. The

techniques would estimate the level of

impairment under existing conditions

and compare it with the impairment

estimated by the "model" under a new

control scenario. EPA specifically

solicits comment on whether this

comparison to existing conditions is

appropriate in all circumstances, for

example, where existing Impairment

may be attributed in part to other sources which have not been required to

install reasonably available control

technology.

EPA does not believe these predicted

levels of impairmqnt should be used In

34774
Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

an absolute manner for all pollutants.

Instead, the Agency intends that the

predicted levels of impairment only be

used to assess the relative improvement

that may be achieved under the new

control scenario. However, EPA

believes it is important to qualify this

predicted relative improvement with all

available data. For example, it would be

useful to compare the impairment

resulting from an actual source similar

to the analyzed source to that estimated

under the new control scenario. Thus,

the guideline requires the estimated

relative improvement to be qualified by

other available data. While the above

discussion qualifies the use of analytical

techniques, it is important to remember

that any such analysis should use all

available tools recognizing that each

provides valuable information relevant

to the analysis and the limitations on the

tool should be recognized. The other program area for which

analytical results can be of value is in

the evaluation of visibility impacts from

new sources. An interim guidance

document for the assessment of these

new sources is being developed and will

be made available for public comment.

8. Inteigovernmental cooperationThe Agency received 20 comments

pertaining to the roles of States, Federal

Land Managers, and EPA in the

development and implementation of

visibility regulations. Nine commenters

felt the regulations should be structured

to provide authoritative input form the

Federal Land Managers. Others felt the

Act gave the State final decision-making

authority and the Federal Land Manager

only an advisory role.

The regulations, as proposed, provide

an active role for both Federal land

Managers and States. The Federal Land

Managers are guaranteed input into the

SIP revision process, including

identification of integral vistas and

concurrence on any BART exemption.

The State, however, retains final

authority for the development of the SIP,

BART determinations, and

implementation of the visibility program.

EPA would remain primarily in a

technical and policy advisory position,

continuing research on visibility and

developing Phase II regulations when it

becomes technically feasible.

EPA believes the visibility program

should truly be a cooperative one. While

the States are aware of local conditions

and preferences, the Federal Land

Managers remain most familiar with

conditions unique to the parks and

wildernesses and the importance of the

visibility values to the visitor experience

in an area. The regulations are

structured to provide input into the

decision-making process by both the

States and the Federal Land Managers,

but EPA believes for the visibility

program to be a viable one, all affectod

parties must work together.

Several commenters were also

conoerned that the subjective judgment

of the Federal Land Managers may be

given too much weight. These

commenters suggested that objective

guidelines or specific minimum criteria

be applied to any decision by the

Federal Land Managers. Under the

proposal, judgments by the Federal Land

Managers will be necessarily somewhat

subjective because visibility is a

perceived quality and difficult to

quantify. However, many of these

decisions, such as identification of

integral vistas, are to be made according

to EPA quidelines or criteria which will

provide consistency and prevent

random, capricious determinations.

Others will be made in coordination

with the States or with assistance from

EPA.

9. Protection of integral vistos-The

proposed regulations would require a

State to protect ahy integral vistas

which are identified by the Federal Land

Manager within 90 days of the

promulgation of these regulations.

unless the State in its SIP demonstrates

to the Administrator that the Federal

Land Manager did not identify the vista

according to the criteria set out in

"Criteria for the Identification of

Integral Vistas". A vista identified by

the Federal Land Manager more than 90

days after promulgation would have to

be protected for visibility not later than

at the time of the periodic review of the

long-term strategy.

The reason for the 90-day period for

identification of vistas to be affected by

this first phase of visibility SIP revisions

is that the Act requires SIPs to be

revised within 9 months of the

promulgation date and, in order for a

state to meet this deadline, it will need

to know within 90 days of the

promulgation date what integral vistas

must be protected in that revision. Some

Federal Land Managers have informed

EPA that identification within the 90-

day period will be possible, although

difficult, to meet while others have

commented that, because of the need to

integrate visibility protection with

planning for certain other management

objectives, identification of vistas within

90 days of promulgation is unlikely.

Under the proposed regulations, the

decision when and whether to identify

an integral vista is primarily the

responsibility of the appropriate Federal

Land Manager who, under the Act (and

the legislation creating an area), has a

special role in protecting the values of

an area.

Although EPA recognizes the

difficulties in identifying the vistas

within 90 days, it believes in most cases

the appropriate Federal Land.Manager

should be able to identify the integral

vista within that time. All the areas

have already been analyzed pursuant to

action under Section 16A(a)(2} to

determine whether visibility is an

important value. Also, since it seems

unlikely that EPA will promulgate these

regulations before November 1980, the

time by when the integral vistas must be

identified to receive protection in the

first phase of SIP revisions for visibility

is still many months away. EPA is

releasing the identification criteria for

public comment along with this proposal

and it should be possible for the Federal

Land Managers to take preliminary

steps now to prepare for the

identification of integral vistas, even

though the criteria may change in light

of comments received. For example, one

important criterion unlikely to be

changed by public comment is whether

the legislation creating an area

specifically mentioned an integral vista

as a reason for its being given special

protection. It is important to note that

the identification criteria present two

different techniques for the final

identification process. Comment is

specifically requested on the

appropriateness of both techniques.

Over the next few years Federal Land

Managers will be developing area

management programs which could

include identification of additional

integral vistas to be protected. As a

result EPA has proposed a procedure

which affords protection of integral

vistas which have been identified by the

Federal Land Manager prior to the

calendar year in which a new source

submits a complete permit application.

However. EPA believes that this

procedure could result in some

uncertainty for new sources and

therefore has proposed that no

additional vistas be identified beyond

December 31,1985 for any Federal class

I area which exists at the time of

promulgation of these regulations.

Additionally, the proposed procedure

would allow a new source to escape the

requirement for protection of an integral

vista that may have been identified

nearly a year before, by submitting a

complete application late in the

calendar year in which the vista was

identified. The Agency also believes

that the procedures for the

reclassification of Federal Lands to

class I should also involve the

identification of integral vistas in order

to prevent such uncertainties in the

future. The Agency specifically solicits

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Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

comments on whether this procedure

will result in too much uncertainty for

new sources between now and

December 31, 1985 and on other systems

which could be used to accomplish the,

objective of protecting new integral

vistas while providing time for the

Federal Land Manager to develop

management plans for their areas. Based

upon the comment received, EPA may

retain, modify, or delete this

requirement. Three alternatives which

the Agency is soliciting comment on are:

(1) providing protection for integral

vistas identified at least a miiimum lime

period prior to the submission of a

complete application, (2) a requirement that the source

consult with appropriate Federal Land

Manager at some designated interval

prior to submission of the application

and requiring protection of vistas

identified within a specific time period

after that consultation, and

(3) a provision which allows the

Federal Land Manager to identify

additional integral vistas within 30 days

of being notified about a new source

permit. EPA recognizes that there are other

procedural mechanisms that could be

devised for identifying integral vistas.

One alternative might be a procedure

like that in Section 169A(a](2) of the Act,

whereby the Federal Land Managers

recommend integral vistas to EPA, and

EPA then promulgates the list with any

change it feels is appropriate. EPA

believes the proposed approach avoids

the unnecessarily protracted process

involved in this alternative, but

specifically solicits comments on this

and other alternative procedure for

identification of integral vistas.

There has leen comment that

Congress did not intend to protect vistas

which include places outside the

boundaries of mandatory class I Federal

areas. This intent is expressed, these

commenters say, in the plan language of

Section 169A(a)(1] which identifies the

national goal of visibility protection "in"

mandatory class I Federal areas.

Examination of the statutory language

and legislative history, however, reveals

that they both support EPA's position

and that removing integral vistas from

protection would seriously undermine

the purpose of Section 169A.

EPA's proposal agrees with the plain

language of Section 169A. It protects no

views into a class I area from outside

the area as some commenters urged. The

only visibility values protected are those

"in" a mandatory class I Federal area,

just as Section 169A provides. This

follows because "visibility" is a

perceptual value and the perception

occurs "in" an area.

In identifying the visibility values of a

mandatory class I Federal area, both the

House and Senate Report counsel

attention to the fundamental purposes

for.which Congress established such

lands, and both quote the 1916 National

Parks Organic Act (16 U.S.C. Section 1)

that the purpose of such lands "is to

conserve the scenery and the natural

and historic objects and the wildlife

therein and to provide for the enjoyment

of the same in such manner and by such

means as will leave them unimpaired for

the enjoyment of future generations" [H.

Rep. No. 95-294. 95th Cong,-1st Sess. 137

,(1977], S. Rep. No. 95-127, lst Sess. 36

(1977)]. Irr 1978, Congress amended this

act to "reaffirm!' this purpose and direct

that the "protection of [areas of the

National Park System] shall be

conducted in light of the high public

value and integrity of the National Park

System and shall not be exercised in

derogation of values and purposes for

which these various areas have been

established, except as may have been or

shall be directly or specifically provided

'by Congress" [16 U.S.C. Section la-1].

The specific legislation establishing the

mandatory class I Federal areas cited in

many cases the magnificent scenery of

the area as a reason for its

establishment [44 FR 69122 (November

30, 1979]). Congress, in framing the

visibility regulations, clearly was aware

that many of these areas were set aside

-because of their "extensive vistas,

expansive scenic views, unique natural

formations or primitive value" [123

Cong. Rec. S9172 (daily ed. June 8,

1977)]. EPA's proposal carries out

Congress' intent that air quality-related

values (including visibility)_be protected.

These values include vistas, regardless

of the location of the places viewed, if

they are an integral part of the visibility

experience in an area. Some areas may

have no integral vistas; others may. For

example, the view from Mesa Verde

National Park of Shiptock (New

Mexico), a unique natural feature, could

be identified as essential to the public

enjoyment and values of the park. By

requiring the participation of interested

persons and a careful analysis of

pertinent criteria, the proposal assures

that integral vistas will not be identified

carelessly as an air quality-related value

bf the area but, rather, that any such

identification will result from a prudent,

circumscribed effort.

The legislative history contains many

references to the "grand," "distant," and

"breathtaking" "vistas"and

"panoramas" of mandatory class I

Federal areas which merit visibility.

protection [See, e.g., H. Rep. No. 95-.294,

supra, at 148, 204, 205; 123 Cong. Rec.

H8651, H8669 (daily ed. August 4, 1977)].

In addition, Congress repeatedly

stressed that public enjoyment of the

parks and the economic benefits tourism

brings were reasons for protecting

visibility i mandatory class I Federal

areas [See, e.g., H. Rep. No. 95--294,

supra, at 24. Even opponents of farranging protection against deterioration

of air quality recognized that "visibility"

means the ability to see distant places

and panoramic sweeps like the view

from the top of a mountain, and that

such visibility is a requisite to the full

enjoyment of mandatory class I Federal

areas [123 Cong. Rec. S9249 (daily ed,

June 9, 1977)]. Nowhere is there the

suggestion that grand vistas integral to

public enjoyment of a mandatory class I

Federal area were not entitled to

protection if the place viewed lay

outside the area. The reason is clear:.

denying such integral vistas protection

would compromise Congress' intention

to preserve the scenic values for which

the area was created and which the

public enjoys.

'Another commenter inquired whether

EPA intends to interpret the word "within" in Section 165(d)(2) to include

integral vistas. As noted previously,

EPA has promulgated PSD regulations

implementing this section and this

aspect of the regulations was not at

issue in the Alabama Power decision

which adjudicated various other issues

relating to those PSD regulations.

Whether a Federal Land Manager

considers an integral vista to contribute

to a visibility value of an area is for him

to decide; he has the "affirmative

responsibility" to protect those values.

Although, as stated, EPA does not

intend to change its PSD regulations

regarding visibility protection, EPA does

interpret both the statute and its PSD

regulations as authorizing the protection

of integraI vistas. Congress could not

have intended such vistas to be

protected by one program and impaired

by the other.

EPA urges that proposed major

emitting facilities, early in the planning

process, discuss with the appropriate

Federal Land Manager the visibility

values of the area including the

existence of any integral vistas.

10. Section 51.30OLong-Term

Strategy-Consistent with Section

169A(b)(2)(B), the proposed regulations

would require each plan to contain a

long-term strategy for making

reasonable progress toward meeting the

national goal. The proposal requires the

strategy to contain several measures

and suggests others the State should

consider in devising the "mix" of

measures appropriate for the particular

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Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

mandatory class I Federal area

circumstances.

Because of the limited applicability of

BART requirements, the development of

long-term strategies will be central to

making reasonable progress toward the

national visibility goal. Consequently,

EPA views the requirement as an

exceedingly important one, even though it will be necessarily somewhat limited

by the phased approach to the visibility

program as discussed above. The longterm strategy can, however, begin to

address the more complex problems

such as regional haze. For example,

although visibility impairment resulting

from multi-source situations may not be

reasonably attributable to any specific

source, other programs for control of

such sources should consider the

impact, to the degree possible, of control

decisions on visibility.

The ANPR suggested that, as an

element of a long-term strategy, EPA

might require the setting and meeting of

reasonable progress visibility

objectives. Today's proposal would not

require specific objectives because EPA

believes such objectives could be

unduly rigid, easily misinterpreted, and

difficult to assess. The proposed

regulations would, however, require

periodic review by the State and a

report to the public on the efficacy of the

long-term strategy. This review would

primarily assess the effectiveness of the

long-term strategy and in this way may

be viewed as objective oriented.

Also required would be review of the

impacts of all pollutants emitted by a

source previously analyzed for BART

when the Administrator determines that

new control technology is available.

Although the proposal would not

automatically require the installation of

additional control equipment for a

pollutant for which a BART analysis has

already imposed retrofit control, a State

would have to do the analysis to

determine whether additional retrofit

control for the pollutant would be a

sensible step toward the national

visibility goal. In many cases EPA

believes it would be a sensible step and,

therefore, urges States to require

imposition of retrofit control for any

pollutant regardless of its control history if a BART reanalysis to consider new

control equipment indicates such

retrofitting is appropriate.

The proposal would require all new

major emitting facilities ancrmajor

modifications, as those terms are

defined in EPA's PSD regulations, 40

CFR 51.24 and amendments, to be

reviewed for their impacts on visibility

for any area listed in 40 CFR Part 81,

Subpart D. EPA is currently preparing a

guideline for such review. This

requirement will assure that any major

new source that may impact visibility in

any of these areas will be reviewed for

such impacts. For example, a source

located in a nonattainment area may not

be reviewed under the PSD program for

visibility impacts in such areas

[Alabama Power, supra, 13 ERC at 2016].

Proposed Section 51.306() sets out

certain measures which the State must

consider in developing its long-term

strategy. Although the State may

develop its own particular "mix" of

measures, the long-term strategy must

be sufficient to make reasonable

progress toward the national visibility

goal. In evaluating the adequacy of the

long-term (10-15 years) strategy, EPA

will consider whether the elements

incorporated provide sufficient

consideration of impacts on visibility so

that reasonable progress toward the

national goal is a reasonable

assumption. In order to ensure this,

many of the elements are mandatory.

and the State must explain why it did or

did not incorporate the optional

elements.

An essential starting point in

developing long-term strategies is

assessment of other air pollution related

control programs. Many of these

programs, such as SIP emission limits

and compliance schedules for

attainment and maintenance of the

national ambient air quality standards,

new source performance standards.

motor vehicle emission standards, and

PSD will likely contribute to making

reasonable progress toward the national

visibility goal. Once the impact of these

and other regulatory programs is

evaluated, the need for additional

measures can be assessed.

Additional measures that must be

considered include additional emission

limitations and schedules for

compliance, source retirement and

replacement schedules, and smoke

management techniques. Whether all of

these measures (or other ones) are

necessary to a long-term strategy for

making reasonable progress toward

meeting the national visibility goal

depends on the particular circumstances

of the area. Many commenters to the

ANPR favored this flexible, areaspecific approach. Others, however, felt

EPA should establish a national

visibility objective along with well

designed timetables to monitor

reasonable progress. EPA believes that

regional differences in meteorological

conditions around the country and

varying degrees of visibility impairment

and land management practices in and

around the class I areas should be

reflected in the visibility program. EPA's

proposal would allow for this; setting a

national visibility objective would not.

The proposal is consistent with the Act

and its legislative history which also

required the BART analysis to consider

local factors and recognized that a

national visibility standard would be

"impracticable" [H. Rep. No. 95-294,

supra, at 205].

One area-specific measure, control of

prescribed burning, i.e., burning for

agricultural and forestry management

purposes, will need to be considered in

certain areas. Substantial comment was

received on prescribed burning, its

importance to forest and range

management, and ability to influence its

extent, timing, and duration. One

comment suggested that prescribed

burning was not man-made (a natural

part of many ecosystems) and. thus, did

not constitute "visibility impairment."

Others noted the impacts of smoke from

prescribed burning. EPA recognizes that

prescribed fire is an ecologically sound

forest and range management tool used

both inside and outside class I areas.

The Agency does not intend that

prescribed burning be eliminated or

unnecessarily restricted, but rather, that

its impacts on visibility be reduced

where feasible and appropriate.

Prescribed burning is a necessary part of

land management but EPA believes

there are techniques to limit its effect on

visibility. EPA has requested the Forest

Service, U.S. Department of Agriculture,

in coordination with land management

and air regulatory agencies, to prepare a

management guideline for the use of

techniques to manage smoke from

prescribed fires. It is anticipated that

this guideline will not only include

evaluation of alternatives to burn but

will also suggest best management

practices for minimizing adverse effects

of smoke. This document is scheduled

for completion in early 1981 and EPA

intends to make a draft of the guideline

available for public comment when it is

completed.

(11) Application of section 169.4 to

new sources-Today's proposal limits

the BART requirements to certain

existing sources, but applies the other

requirements of Section 169A (such as

the strategy for making reasonable

progress toward the national goal) to

new sources as well. Although EPA has

received comment that the requirements

of Section 169A apply to existing

sources only, the Agency feels the plain

language and legislative history of the

visibility provisions support this

proposal, as does common sense.

The plain language of Section 169A

shows that this section is not limited to

existing sources. The national goal

34777
3 Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

toward which the regulations must

assure reasonable progress

encompasses not only the "remedying of

any existing" impairment of visibility,

but also "the prevention of any future"

impairment [Section 169A(a)(1)]. The

recommendations in the Report to

Congress, which are to be taken into

account in the regulations, must include "methods for preventing and

remedying * * * manmade air pollution

and resulting visibility impairment"

(emphasis added) [Sections

169A(a)(3)fC), (b)(1)]. While the BART

requirement in Section 169A(b)(2)(A)

focuses on control of existing sources,

subparagraph (B) expressly requires "a

long-term (ten to fifteen years) strategy

for making reasonable progress toward

meeting the national goal." There is no

indication that a 15-year plan must be

restricted to only existing sources.

The language of other sections of Part

C of Title I of the Act underscores the

intent to apply Section 169A to new

sources in order to prevent future air

degradation. In section 160, Congress

states the purposes "of this part." "This

part," means Part C. Part C includes

Section 169A. Since nearly all the

purposes in Section 160 relate to future

goals and activities, and hence to new

sources, it is apparent that Section 169A

applies to new as well as existing

sources. Similarly, Section 167, which is

also in Part C, mandates enforcement

action by the Administrator "to prevent

the construction of a major emitting

facility which does not conform to the

requirements of this part. . . ." If

Congress had intended this enforcement

authority to be limited to PSD

requirements, it would have referred to

"this subpart." But using the term "this

part," Congress included Section 169A.

There would be no necessity to include

the requirements of Section 169A in

Section 167 unless Section 169A applied

to new as well as existing sources.

The comment that Section 169A is

limited to existing sources minimized

the plain language of the Act and

addressed two passages in the

legislative history. The first is from the

Conference Report:

"A major concern which prompted the

House to adopt the visibility.protection provision was the need to remedy existing pollution in Federal mandatory class I areas

from existing sources. Issues with respect to

visibility as an air quality value in

application to new sources are to be resolved

within the procedures for prevention of

significant deterioriation." (emphasis added).

H. Rep. No. 95-564, supra, at 155.

This passage simply recognizes that

existing sources, in addition to new

sources, must be controlled in order to

make progress toward the national goal

and that, for purposes of visibility

protection, program procedures for new

sources and those for existing sources

be dovetailed so as to minimize any

bureaucratic burden. kothihg in this

passage, however, is inconsistent with

EPA's proposal. The second passage is

Senator Muskie's response to Senator

McClure's question whether Section

169A applies only to existing sources.

Senator Muskie replied:

"Yes, the Federal interest is limited to

existing sources, which have been in

existence 15 year or less. Visibility

restrictions with regard to new sources would

result under the [PSDJ provisions." 123 Cong.

Rec. $13709 (daily ed. Aug. 4, 1977).

Senator Muskie, however, is

apparently speaking of the BART

requirement being limited to existing

sources and, like the conference report,

of the desire to dovetail new source

visibility requirements with PSD

procedures.

Thus, these two passages of the

legislative history, taken alone, do not

support the commenter's position nor do

they justify deviation from the plain,

language of the statute. Further, the

House Committee left no doubt that

Section 169A was intended to apply to

new sources:

* * * the committee recognizes that one mechanism which has been suggested for

protecting these areas, the mandatory class I

increments of new Section 160 [subpart 1

"Prevention of Significant Deterioration"] do

not adequately protect visibility in class I areas.

* * * In light of the foregoing, the

committee concluded that a separate

approach was necessary to control the

visibility problem, in mandatory Federal

class I areas. * * * The committee recognizes that [the

national] goal cannot be achieved overnight.

But the very difficulty of curing existing

problems after the fact argues strongly for a strong preventive approach for the future."

Rep. No. 95-294,.supra, at 205-208.

The opponents of.the measure in the

House Committee also agreed that it

would apply to new as well as existing

sources. Id. at 529.

The conference committee report

indicates that "[tihe conferees agreed to

'the House provision [on visibility

protectionJ with modifications." The

point, noted above, that the conference

report does not in any way indicate that

the substantive requirements of Section

169A were applicable only to existing

sources was underscored by various

House members:

..... as in the House bill, [Section 169A] as agreed to in conference applies both to new and existing sources. As pointed out in

the House Committee report, merely meeting class I increments under prevention of

significant deterioration will not be adequate

to assure visibility protection. Clearly the

conferees did not want to Impose two

separate pro-construction permit

requirements for a new source for the

purpose of assuring compliance with

requirements. One permit should suffice." 123

Cong. Rec. H8663 (daily ed. Aug. 4,1977).

Rep. Rogers provided further

explanation on this point in his

statement accompanying the technical

amendments to the 1977 Clean Air Act

Amendments [P.L. 95-190):

"It was suggested that the apparent conflict

between the reading of some Senators and

the House view on the Visibility section

(section 169A) should be resolved by a technical amendment, However, such an amendment seems unnecessary to me, The

conference provision essentially adopted the

House bill's approach. This Is made clear at

page 155 of the conference report. Nowhere In

the conference report is it suggested that any

limitation of the provision to existing sources was adopted by the conferees. While the

report recognizes that '[a) major concern which prompted the House to adopt the

visibility protection [provision] was the need

to remedy existing pollution,' it does not

state, nor does it imply that 'existing sources' were the only concern. As the House

Committee report makes clear, new sources were also of concern. (H. Rep. No. 95-204].

What sense would it make to solve existing

problems, but allow the same situation to

develop as a result of now sources?

The conference committee, of course, did

not want to subject new sources to two

separate procedural steps under the PSD and

visibility protection provisions. That is why

the conference report states, 'Issues with

respect to visibility * * * in application to new sources are to be resolved within the

procedures for prevention of significant

deterioration.' (emphasis added). But in the

one-stop permit process for new or modified

major-sources, the substantive criteria and

standards of PSD and visibility provisions

would have to be met. This point Is

underscored by the statutory language of

section 169(A)(1) retaining as a national goal

the prevention of any future * * * impairment of visibility in mandatory class I

Federal areas. Given this clear statement of

legislative intent, I do not believe any

technical or conforming amendment is

necessary." 123 Cong. Rec. H11g58 (Nov. 1,

1977).

To answer Rep. Ropers' rhetorical

question, it would make no sense to

create a visibility program which

attacks the problem by controlling older

sources, but allows new sources

simultaneously to create the problem

anew. In effect, this would ignore the

portion of the national goal calling for

the prevention of new impairment.

(12) Visibility Protection of Non.

Mandatory Class ILands-The

regulations required by Section 169A are

limited to mandatory class I Federal

areas where visibility is an important

value [Section 169A(b)(2)]. In contrast,

Section 165(d)(2), which concerns new

34778
Federal Register / Vol. 45, No. 101 / Thursday, May 22, 1980 / Proposed Rules

sources, applies to Federal lands in all

class I areas. As noted above, EPA's

PSD regulations also are not limited to "mandatory class I Federal areas," and

this-aspect of the regulations was not at

issue in Alabama Power. This means

that Federal Land Managers also have

an "affirmative responsibility" to protect

air quality-related values with respect to

Federal lands that are redesignated

class I by the States (or Congress). This

directive to Federal Land Managers to

respect State redesignations is

consistent-with the general principle in

the Act to recognize State's authority to

set stricter standards than the Act

requires [Sections 116, 164].

The legislative history supports this

interpretation. The summary and the

discussion of Section 165(d) in the

Senate Report express no intention to

limit the air quality-related values test

to mandatory class I Federal areas, but

instead consistently refer to "class I

areas." S. Rep. No. 95-294, supra, at 35-

36. The Conference Report says flatly

that the "air quality-related values test,

including visibility, is applied to sources

affecting class I areas" [H. Rep. No. 95-

564, 95th Cong., 1st Sess. 153 (1977)].

Statements by conferees during House

debate on the Conference Report

corroborate this construction [123 Cong.

Rec. H866], H8660 (daily ed. August 4,

1977)].

Section 165(d) does not, however,

apply to redesignations of reservation

land to class I by Indian tribes. This is

because Indian land is not Federal land,

and Indian tribes are not Federal Land

Managers. The Act treats separately

lands within the boundaries of Indian

reservations and lands subject to the

jurisdiction of Federal Land Managers.

It is the "Federal Land Manager * * * charged with direct responsibility for

management of any lands within a class

I area" that Section 165(d)(2) gives an ".affirmative responsibility to protect the

air quality-related values (including

visibility) of any such lands within a

class I area." Section 302(i) defines

"Federal Land Managers" as, "with

respect to any lands in the United

States, the Secretary of the department

frith authority over such lands." This

definition dropped the language from the

Senate bill which included as Federal

Land Managers "Indian tribes which

have legal jurisdiction over tribal lands"

[S. 252, 95th Cong., 1st Sess. Section 6

(May 10,1977)]. This does not appear to

have been inadvertent, since the

Conference Report states the Federal

Land Manager is "the Secretary of the

Department which has the authority

over any specific Federal land"

(emphasis added) [H. Rep. No. 95-564,

95th Cong., 1st Sess. 172 (1977). Thus,

Indian tribes are not Federal Land

Managers.

As for the term "Federal land,"

Congress intended it to "hold its

traditional context, and impl[y] no new

departure from definitions or systems of

classifying Federal lands and landrelated rights" [S. Rep. No. 95-127,

supra, at 34]. The traditional position of

the Department of the Interior has been

that lands within lands within Indain

reservations are not Federal lands.

There is, therefore, no Federal Land

Manager to be charged with the "affirmative responsibility" of protecting

under Section 165(d) Indian Lands

redesignated class I. This interpretation

is consistent with Part C of the Act

which treats Indian lands uniquely and

sets out in Section 164(e) a mechanism

for protection of the air quality-related

values of Indian lands affected by a

redesignation.

(13) National Emission Standards for

Visibility-One commenter suggested

that the agency establish uniform

national emission standards for the

major stationary sources, but this would

violate the intent of Congress which, in

regard to the determination of BART, is

clearly stated in Section 169A(b)(2)(A): "each major stationary source* * * shall procure, install, and operate, as

expeditiously as practicable (and

maintain thereafter) the best available

retrofit technology, as determined by the

State" (emphasis added). Section

169A(b) requires BART for large fossilfuel fired power plants (750 MW) to "be

determined pursuant to guidelines

promulgated by the Administrator

* * ' However, the only general

authority of the administrator to

determine BART for specific sources is

for plans promulgated by the

Administrator where the State has failed

to fulfill the requirements of the Act. The

Bart considerations include available

technology, the costs of compliance, the

energy and nonair quality

environmental impacts of compliance,

any existing pollution control

technology in use at the sources, 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. Each of these considerations is sourcespecific and, therefore. BART must be

decided on an individual source-bysource basis. Indeed, the conference

committee specifically eliminated the

regulations and Federal guidelines for

determining this technology required by

the House passed bill for determining

BART except for fossil-fuel fired

generating power plants having a total

generating capacity in excess of 750

megawatts [H. Rep. No. 95-564, Supra,

at 155]. The BART guideline for these

large power plants is available for

public review and comment (See

Document Availability]. Commenters

should recognize that the retrofit of

control technology is usually much more

expensive than the incorporation of

similar technology during construction

of a new source. The Agency

particularly solicits all available factual

information on the cost of retrofitting

control technology on existing large

power plants.

(14) Baseline-In the ANPR. EPA

introduced the term "baseline" stating

that it might be useful in defining certain

other terms used in the visibility

program. The ANPR did note, however,

that both of the contemplated definitions

of "baseline" had drawbacks. Todpy's

proposal does not use the term. EPA

believes its use, as indicated by the

comments received, would lead to

confusion.

(15) Plume blight-Fifteen

commenters expressed opinions on the

definitions of plume blight and regional

haze presented in the ANPRL EPA's

intent in the ANPR was to focus on

clearly definable cases of visibility

impairment for purposes of Phase I

regulations. The comments indicated

that the term "plume blight' caused

some confusion. Therefore, the Agency

is defining the scope of the Phase I

regulations by the term "reasonably

attributable," which is defined as

attributable to a single source or group

of sources by visual observation or

other monitoring technique. The key

distinction between this Phase I

definition and future phases is by what

means a source can be identified. Most

sources which contribute to long-range

transport visibility impacts cannot be

adequately assessed for their impacts on

such impairment at present. As

mentioned previously, these forms of

impairment will be dealt with in future

phases of the program.

One commenter felt water vapor

should not be considered as visibility

impairment. EPA agrees with this

assessment. Water vapor plumes are

generally confined to an area near the

source and should not have an impact

on visibility in a mandatory class I

Federal area. However, there are cases

in which the steam from an industrial

process combines with other substances

such as SO, or NO. This is not

considered water vapor by the Agency

and could be identified as visibility

impairment.

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