MEMORANDUM TO DOCKET

DATE: November 21, 2012

SUBJECT: TEP Sundt Unit I4 – BART Eligibility

ISSUE: Assuming TEP Sundt Unit I4 was “reconstructed” in 1987, is it still BART-eligible 

because it did not undergo PSD review? 

SUMMARY OF FACTS:

The Arizona Department of Environmental Quality (ADEQ) determined that Steam Unit I4 at 

Tucson Electric Power Company’s (TEP) Irvington Generating Station (now known as Sundt 

Generating Station) is not BART-eligible because was “reconstructed” in the 1980s when it was

converted to burn coal in accordance with a prohibition order that was issued pursuant to Section 

301(c) of the Power Plant and Industrial Fuel Use Act of 1978. At the time of its reconstruction, 

Unit I4 did not undergo PSD review because ADEQ found that the conversion to coal did not 

constitute a major modification, due to an exemption in Arizona’s PSD rule for fuel switches 

required by “an order under Sections 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 pursuant to the Federal Power Act.” 

RELEVANT STATUTES, REGULATIONS AND GUIDANCE:

Section 169A(b)(2) of the CAA mandates that EPA promulgate regulations requiring SIPs to 

contain specific measures to address visibility impairment, including:

. . . a requirement that each major stationary source which is in existence on August 7, 

1977, but which has not been in operation for more than fifteen years as of such date, and 

which, as determined by the State (or the Administrator in the case of a plan promulgated 

under [CAA § 110](c)) emits any air pollutant which may reasonably be anticipated to 

cause or contribute to any impairment of visibility in any such area, shall procure, install, 

and operate, as expeditiously as practicable (and maintain thereafter) the best available 

retrofit technology, as determined by the State (or the Administrator in the case of a plan 

promulgated under [CAA § 110](c)) for controlling emissions from such source for the 

purpose of eliminating or reducing any such impairment.

169A(b)(2)(A). Pursuant to 169A(g) (7) the term “major stationary source” includes fossil-fuel 

fired steam electric plants of more than 250 million British thermal units per hour heat input with 

the potential to emit 250 tons or more of any pollutant.

Section 169A(b)(1) also requires EPA to issue guidelines for States to follow in establishing 

BART emission limitations for fossil-fuel fired power plants having a capacity in excess of 750 

megawatts. 

On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I 

areas that is “reasonably attributable” to a single source or small group of sources, i.e., 

“reasonably attributable visibility impairment” (“RAVI”). 45 FR 80084 (December 2, 1980). 

EPA later promulgated regulations to address regional haze, which is visibility impairment 
produced by a multitude of sources and activities that are located across a broad geographic 

area). 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart P (Regional Haze Rule). 

Consistent with CAA Section 169A(b)(2)(A), the Regional Haze Rule (RHR) requires states to 

submit SIP revisions “containing emission limitations representing BART and schedules for 

compliance with BART for each BART-eligible source that may reasonably be anticipated to 

cause or contribute to any impairment of visibility in any mandatory Class I Federal area. . .” 40 

CFR § 51.308(e).

For purposes of Subpart P, “BART-eligible source” is defined as “an existing stationary facility 

as defined in this section.” 40 CFR § 51.301. “Existing stationary facility” in turn is defined as:

any of the following stationary sources of air pollutants, including any 

reconstructed source, which was not in operation prior to August 7, 1962, and was 

in existence on August 7, 1977, and has the potential to emit 250 tons per year or 

more of any air pollutant. . . . 

[inter alia] Fossil-fuel fired steam electric plants of more than 250 million British 

thermal units per hour heat input . . . . 

Id. Finally, “in existence” is defined to mean:

. . . that the owner or operator has obtained all necessary preconstruction 

approvals or permits required by Federal, State, or local air pollution emissions 

and air quality laws or regulations and either has (1) begun, or caused to begin, a 

continuous program of physical on-site construction of the facility or (2) entered 

into binding agreements or contractual obligations, which cannot be 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.

Id. 

On July 6, 2005 EPA issued the Guidelines for BART Determinations (“BART Guidelines”) to 

fulfill the requirements of CAA section 169A(b)(1). 70 FR 39104 (codified at 40 CFR Part 51, 

Appendix Y). The BART Guidelines “establish an approach to implementing the requirements of 

the BART provisions of the regional haze rule.” In making a BART determination for a fossil 

fuel-fired electric generating plant with a total generating capacity in excess of 750 megawatts 

(MW), states must use the approach set forth in the BART Guidelines. 40 CFR 

51.308(e)(1)(ii)(B). States are encouraged, but not required, to follow the BART Guidelines in 

making BART determinations for other types of sources. See 40 CFR Part 51, Appendix Y, § 

I.H. 

With respect to BART-eligibility, the BART Guidelines note that: 

Major stationary sources which commenced construction AFTER August 7, 1977 

( i.e. , major stationary sources which were not “in existence” on August 7, 1977) 

were subject to new source review (NSR) under the PSD program. Thus, the 

August 7, 1977 “in existence” test is essentially the same thing as the 

identification of emissions units that were grandfathered from the NSR review 

requirements of the 1977 CAA amendments.
BART Guidelines § II.A.2. 

The Guidelines also provide the following discussion of “reconstructed sources”:

1. Under a number of CAA programs, an existing source which is completely or 

substantially rebuilt is treated as a new source. Such “reconstructed” sources are 

treated as new sources as of the time of the reconstruction. Consistent with this 

overall approach to reconstructions, the definition of BART-eligible facility 

(reflected in detail in the definition of “existing stationary facility”) includes 

consideration of sources that were in operation before August 7, 1962, but were 

reconstructed during the August 7, 1962 to August 7, 1977 time period.

. . . .

4. The “in operation” and “in existence” tests apply to reconstructed sources. If an 

emissions unit was reconstructed and began actual operation before August 7, 

1962, it is not BART-eligible. Similarly, any emissions unit for which a 

reconstruction “commenced” after August 7, 1977, is not BART-eligible.

BART Guidelines § II.A.2. 

DISCUSSION:

The starting point for any analysis of BART eligibility is Clean Air Act Section 169A(b)(2), 

which provides, in relevant part, that: 

. . . . each major stationary source which is in existence on August 7, 1977, but 

which has not been in operation for more than fifteen years as of such date, and 

which, as determined by the State (or the Administrator in the case of a plan 

promulgated under [CAA § 110](c)) emits any air pollutant which may 

reasonably be anticipated to cause or contribute to any impairment of visibility in 

any such area, shall procure, install, and operate, as expeditiously as practicable 

(and maintain thereafter) the best available retrofit technology, as determined by 

the State (or the Administrator in the case of a plan promulgated under [CAA § 

110](c)) for controlling emissions from such source for the purpose of eliminating 

or reducing any [visibility] impairment. . . 

TEP Sundt Unit I4, which is part of a fossil-fuel fired steam electric plant of more than 250 

million British thermal units per hour heat input, is clearly a “major stationary source” under 

169A(g)(7). In addition, there is no dispute that Unit I4 emits visibility-impairing pollutants 

(namely, sulfur dioxide (SO2), nitrogen oxides (NOX) and fine particulates (PM2.5 ) and that it 

was not in operation before August 7, 1962. Therefore, if Unit I4 was “in existence on August 7, 

1977,” it is BART-eligible.

CAA section 169A does not define “in existence,” but EPA’s visibility protection regulations 

provide that: 
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 (1) begun, or caused to begin, a continuous 

program of physical on-site construction of the facility or (2) entered into binding 

agreements or contractual obligations, which cannot be 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.

40 CFR 51.301. Under the plain language of this definition, TEP Sundt Unit 4 was “in existence” 

on August 7, 1977, since it was constructed in 1964.1 Therefore, the only manner in which this 

Unit could be exempted from BART eligibility is under the “reconstruction exemption” in the 

BART Guidelines. 

The Guidelines describe this exemption as follows:

The “in operation” and “in existence” tests apply to reconstructed sources. If an 

emissions unit was reconstructed and began actual operation before August 7, 

1962, it is not BART-eligible. Similarly, any emissions unit for which a 

reconstruction “commenced” after August 7, 1977, is not BART-eligible.

BART Guidelines § II.A.2. This language in the Guidelines, read in isolation, seems to indicate 

that any reconstruction commenced after August 7, 1977 exempts a source from BART 

eligibility. However, the BART Guidelines are not binding with respect to TEP Sundt Unit 4 

because it is not part of a fossil fuel-fired electric generating plant with a total generating 

capacity in excess of 750 MW.2 The Guidelines still provide important guidance, but must be

considered in the context of the relevant statutory and regulatory provisions, none of which even 

refer to such an exemption for post-1977 reconstructions. 

Since “BART-eligible source” is defined as “an existing stationary facility as defined in [40 CFR 

§ 51.301],” the key regulatory provision with respect to BART-eligibility is the definition of 

“existing stationary facility” in 40 CFR § 51.301. That definition provides, in relevant part: 

Existing stationary facility means any of the following stationary sources of air 

pollutants, including any reconstructed source, which was not in operation prior 

to August 7, 1962, and was in existence on August 7, 1977, and has the potential 

to emit 250 tons per year or more of any air pollutant. . . . 

(emphasis added). This definition was originally promulgated as part of the RAVI 

regulations, 45 FR at 80090 (December 2, 1980), and was then retained under the RHR,

64 FR at 35763. EPA explained its rationale for including reconstructed sources in this 

definition as follows: 

Where a source has had an addition or reconstruction with the potential to emit 

250 tons a year of a pollutant 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 

 1 See WRAP “Supporting Documentation on Emissions Unit Bart Eligibility Analysis” § 5.8.1. (2006). 2

 The total generating capacity of the TEP Sundt Plant is approximately 422 MW. See Tucson Electric Power, 

Irvington Generating Station, Air Quality Permit # 1052, Technical Support Document § B (May 18, 2007).
“grandfathering” approach would be without reason and could seriously 

undermine progress toward remedying existing visibility impairment.

45 FR at 34771-72. EPA further explained that, “[e]xisting stationary facilities are certain 

sources, which emit more that 250 tons per year, and (1) were not in operation prior to August 7, 

1962, or (2) were reconstructed after that date.” 45 FR at 80086. Thus, the intent of the 

“reconstruction” provision was to ensure that sources reconstructed between 1962 and 1977 were 

included in the definition of BART-eligible sources. Neither the text of the regulation nor the 

preamble to the RAVI rules make any mention of an exemption for sources reconstructed after

August 7, 1977. Likewise, when the RHR was promulgated in 1999, EPA did not indicate that 

sources reconstructed after August 7, 1977 would not be eligible for BART. 

The reconstruction exemption was introduced as part of the BART Guidelines. Although not

specifically articulated in the Guidelines, the intent of this exemption seems to have been 

avoiding a “second bite at the apple” that would result if BART was required for sources for

which potential visibility impacts had already been addressed through the NSR program

(including PSD permitting requirements for attainment areas). As explained in the preamble to 

the Guidelines, Congress intended “that the BART provision apply to sources which had been 

‘grandfathered’ from the new source review permit requirements in parts C and D of title I of the 

CAA.” 70 FR at 39111. Consistent with this approach, footnote 9 of the preamble to the BART 

guidelines notes that, “sources reconstructed after 1977, which reconstruction had gone through 

NSR/PSD permitting, are not BART-eligible.” 70 FR at 39111 (July 6, 2005) (emphasis added). 

By implication, reconstructed sources that did not go through NSR/PSD permitting, are BARTeligible. 

This interpretation of the reconstruction exemption is in tension with the blanket statement in the 

BART Guidelines that “any emissions unit for which a reconstruction ‘commenced’ after August 

7, 1977, is not BART-eligible.” However, given that the Guidelines are not mandatory for TEP 

Sundt, and that no binding statutory or regulatory provision provides for such a post-1977 

reconstruction exemption, it is appropriate to read this exemption narrowly. An interpretation of 

“BART-eligible” as including reconstructed sources that did not go through NSR/PSD 

permitting is also consistent with Congressional intent and with EPA’s intent in promulgating the 

relevant regulations, as set forth in the preamble language quoted above. 

Therefore, EPA concludes that, even accepting ADEQ’s determination that TEP Sundt Unit 4 

was “reconstructed” after August 7, 1977, the Unit remains BART-eligible because it did not go 

through NSR/PSD permitting.