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Docket Number EPA-HQ-OAR-2011-0729

Regional Haze: Revisions to Provisions Governing Alternatives 

to Source-Specific Best Available Retrofit Technology (BART) 

Determinations, Limited SIP Disapprovals, and Federal 

Implementation Plans (76 FR 82219; December 30, 2011

Response to Comments 

Document

U.S. Environmental Protection Agency

Office of Air and Radiation

May 2012
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Table of Contents

I. Introduction......................................................................................5

II. General Comments in Support of the Rule ...................................5

III. Support EPA’s Technical Analysis...............................................8

1. Two-Pronged Test ...............................................................................................................8

2. CAMx Output: Nitrate Concentraions................................................................................10

3. Selection of Affected Class I Areas ...................................................................................12

4. EPA’s Proposed Determination that Participation in CSAPR for Ozone Season NOx 

Satisfies BART .....................................................................................................................13

5. Modeled Control Scenarios: BART Limits........................................................................13

IV. General Comments Opposing EPA’s “Better than BART” 

Determination .....................................................................................14

V. Comments Questioning the Legal Authority for Trading 

Program Alternatives to BART .........................................................17

VI. Comments Asserting that CSAPR Cannot be Considered 

“Surplus” to Other Requirements.....................................................19

VII. Comments Asserting that the CAA Does Not Allow EPA to 

Exempt BART-eligible Sources by Relying on CSAPR....................20

VIII. Comments Asserting that Source-Specific BART Would 

Achieve Greater Reasonable Progress than CSAPR........................23

IX. Comments on the Relationship Between CSAPR, BART, and 

Other Requirements of Regional Haze SIPs.....................................29

XI. Deficiencies in EPA’s Technical Analysis ..................................42

1. Misintrepetation of the Two-Pronged Test.....................................................................42

2. Averaging Across All Class I Areas...............................................................................43

3. EPA’s Two Control Scenarios Are Inappropiate ............................................................46

4. Comparison of Earthjustice’s BART+CSAPR Scenario with CSAPR for Minnesota 

BART Units..........................................................................................................................48

5. EPA Did Not Apply SO2 Controls to Units Smaller than 100 MW.................................49

6. Reliance on Presumptive BART ....................................................................................51

7. Need for Correction of EPA Assumptions for Gerald Gentleman Unit 2 ........................56

8. Incorrect Application of EPA’s Presumptive Limits.......................................................57
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9. Averaging Times for BART and CSAPR Are Different .................................................75

10. Errors in EPA Models for Nitrate................................................................................77

11. Ozone-only States.......................................................................................................82

12. Use of Presumptive Limits for NOx in Arkansas Where EPA Disapproved Those Limits

84

13. Deficiencies for NOx in Other NOx-only CSAPR States.............................................85

14. Need for Worst-Case Scenarios...................................................................................86

15. Use of IMPROVE Monitor Location to Evaluate Visibility Impacts............................86

16. Appropriateness of Emission Projections that Are Lower than CSAPR Budget 

Allocations............................................................................................................................90

17. Need to Appropriately Account for Reasonably Attributable Visibility Impairment 

(RAVI) and Potential “Hot Spots”.........................................................................................91

18. Timing of Reductions, Possibility for Emissions During Bad Visibility Days............101

XII. Emissions Overestimated in EPA’s Base Case.......................102

1. Missing Mandatory Limits Reported to DOE/EIA ...........................................................110

2. Need for More Current Emissions Basis for Comparison.................................................111

3. Need for Analysis of CSAPR Rule Changes....................................................................113

XIV. EPA’s Proposed Limited State Implementation Plan (SIP) 

Disapprovals and Proposed Federal Implementation Plan (FIP) in 

Light of the Stay of CSAPR by the D.C. Circuit.............................119

XV. States Should be Given the Opportunity to Remedy CAIRDependent SIPs.................................................................................133

XVI. Comments Specific to Certain States.....................................134

1. Florida.............................................................................................................................134

2. Georgia ...........................................................................................................................135

3. Indiana ............................................................................................................................137

4. Texas...............................................................................................................................139

5. Florida.............................................................................................................................142

6. Ohio ................................................................................................................................142

XVII. Regulatory Language Addressing Reasonable Progress Goals 

and the Long-Term Strategy............................................................143

XVIII. Comments Unrelated to the Proposed Action.....................144
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XIX. Comments Pertaining to the Transport Rule (Cross-State Air 

Pollution Rule CSAPR))...................................................................145

XX. Comments Pertaining to the Proposed Consent Decree .........146

XXI. Regional Haze Rule Five-Year Progress Reports..................148
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I. Introduction 

The purpose of this response to comment (RTC) document is to respond to public comments 

submitted to Docket ID No. EPA-HQ-OAR-2011-0729 by interested parties. All comments and 

other supporting materials can be found in their entirety at www.regulations.gov. 

On December 30, 2011, the United States Environmental Protection Agency (the EPA or 

agency) published a Federal Register Notice (76 FR 82219) entitled “Regional Haze: Revisions 

to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology 

(BART) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans.” In this 

notice, the EPA requested comments on the proposed rule from the public by February 13, 2012. 

The public comment period was subsequently extended to February 28, 2012, as announced in 

the Federal Register on January 31, 2012 (77 FR 4734).

The action described the EPA’s proposal to revise the Regional Haze Rule to allow the trading 

programs in the Cross-State Air Pollution Rule (CSAPR) as an alternative program to Best 

Available Retrofit Technology (BART). The same action proposed to disapprove the elements of 

several regional haze State Implementation Plans (SIPs) that relied on the Clean Air Interstate 

Rule (CAIR) in a similar manner, and to promulgate Federal Implementation Plans (FIPs) 

relying on CSAPR to remedy some of these disapprovals. [Note: in this RTC document the name 

“Cross-State Air Pollution Rule (CSAPR)” and the name “Transport Rule” are used 

interchangeably and refer to the same program.1

]

The EPA’s proposed revisions to the Regional Haze Rule would allow the trading programs in 

the CSAPR as an alternative program to BART. As a result, states in the CSAPR region could 

substitute participation in CSAPR for source-specific BART for EGUs in those states. We also 

proposed a limited disapproval of regional haze SIPs for several states that relied on CAIR to 

meet their regional haze goals, but are now subject to CSAPR. We proposed a Federal 

Implementation Plan (FIP) for each state that both relied on CAIR and received a finding of 

failure to timely submit a regional haze SIP. With respect to Reasonably Attributable Visibility 

Impairment (RAVI), we proposed to preserve the current regulatory language.

II. General Comments in Support of the Rule 

Commenter: Michael Olive, Progress Energy

Comment:

Progress Energy supports EPA's proposed "better-than-BART” determination for CSAPR and

EPA's proposed determination that participation in CSAPR's ozone-season NOx program alone

satisfies BART NOx requirements for subject states, which include Florida. However, rather

than codifying that determination by replacing all references to CAIR in 40 CFR Section

51.308(e)(ii)(4) with references to CSAPR, Progress Energy urges EPA to codify both its CAIR

and CSAPR "better-than-BART" determinations side-by-side. This would ensure necessary

 1 Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone, 76 FR 48208 

(August 8, 2011).
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flexibility in light of the uncertainty surrounding CAIR and CSAPR's status due to the stay and

pending judicial review of CSAPR.

Commenter: Bruce W. Moore, American Electric Power (AEP)

Comment: 

AEP is supportive of the methodology and proposed result to consider the incorporation of 

CSAPR trading program into the state SIPs to be sufficient to meet the requirements of achieving 

better reasonable progress toward natural visibility conditions than source specific BART.

Commenter: Duke Energy

Comment:

Duke Energy supports EPA’s proposed determination that CSAPR = BART for EGUs subject to 

the CSAPR. 

Commenter: Stephen Cain, Arkansas Electric Cooperative Corporation (AECC)

Comment:

AECC supports the decision that compliance with CSAPR is an alternative to source-specific 

BART requirements. AECC supports EPA’s determination that the CSAPR trading programs 

achieve greater reasonable progress towards the national goal of achieving natural visibility 

conditions than source-specific BART for sulfur dioxide and/or nitrogen oxides emissions from 

power plants in states covered by CSAPR. AECC believes that EPA’s determination that 

participation in CSAPR’s trading programs as an alternative to source-specific BART is 

necessary to prevent redundancy and possible inconsistency of regulation between CSAPR and 

the Regional Haze Rule. Further, AECC believes that this regulatory streamlining is required by 

Executive Order 13563. 

Commenter: Michael Bradley, Clean Energy Group

Comment:

The Clean Energy Group appreciates the opportunity to comment in support of EPA’s proposal 

to allow states to consider participation in CSAPR as equivalent to, or better than, BART for 

compliance with the Regional Haze Rule. The Clean Energy Group agrees that participation in 

the CSAPR program, including proposed budget revisions at 76 FR 63860, should be considered 

as an alternative to source-by-source BART as long as it promotes equal or greater emission 

reductions than a source-by-source application of BART. (The Clean Energy Group recognizes 

the ongoing litigation before the D.C. Circuit regarding CSAPR, and offers these comments 

assuming CSAPR is implemented largely as finalized, including finalization of revision at 76 FR 

63860.)

Commenter: Myra C. Reese, South Carolina Department of Health and Environmental 

Control (DHEC)

Comment:

DHEC supports the EPA's technical conclusion that CSAPR achieves greater reasonable 

progress in achieving the EPA's visibility goals than source-specific BART determinations.

Commenter: Michael L. Krancer, Pennsylvania Department of Environmental Protection 

(PA DEP)
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Comment:

The DEP agrees with EPA that the NOx and S02 Transport Rule trading programs would serve 

as a better alternative toward achieving greater reasonable progress goals for visibility in federal 

Class I areas than would source-specific BART emission limitations for BART-eligible fossil 

fuel-fired EGUs located in states covered by the Transport Rule. The DEP supports EPA's 

proposed amendment to allow states subject to the Transport Rule to substitute participation in 

the Transport Rule for source-specific BART for S02 or NOx emissions from EGUs in those 

states. We recognize that adoption of the "Better-than BART" final rule is dependent on the 

outcome of the Transport Rule litigation.

Commenter: Paul Bailey, American Coalition for Clean Coal Electricity (ACCCE)

Comment:

ACCCE appreciates and agrees with EPA’s determination that compliance with CSAPR will be 

deemed to constitute compliance with BART for EGUs. ACCCE supported EPA’s 2005 

determination that compliance with CAIR would be deemed to constitute compliance with EGU 

BART, and the Court of Appeals upheld that determination. The same policies that justified that 

2005 determination support making the same determination for CSAPR. In fact, because CSAPR 

will result in faster and larger emission reductions than CAIR, it makes even more sense for 

CSAPR to be considered “better than BART.” And the modeling EPA performed and cited in its 

proposal fully supports that “better than BART” determination. 

Commenter: Michael P. Halpin, Florida Department of Environmental Protection

Comment:

Florida is in agreement with EPA that, like CAIR, the judicially-stayed version of CSAPR is 

indeed "better-than-BART" with respect to visibility improvement and that the rule would be a 

reasonable BART alternative in Florida with respect to NOx emissions if it were effective. 

However, the better approach is for EPA to keep the "CAIR is better-than-BART" rule in place 

and approve Florida's proposed Regional Haze SIP that relies on CAIR.

Commenter: Louis P. Pocalujka, Consumers Energy

Comment:

Consumers Energy supports EPA’s CSAPR=BART proposal. We believe that this determination 

will result in reasonable progress towards the national goal of achieving natural visibility 

conditions in mandatory Class I federal areas. At the same time, it will help EPA, states and 

affected sources with their planning efforts, reduce regulatory burdens, and reduce the cost of 

regulation. Such a policy is consistent with previous Court determinations with respect to 

CAIR=BART.

Commenter: John D. Kinsman, Edison Electric Institute

Comment:

EEI in general supports EPA’s CSAPR=BART proposal. EEI believes EPA’s technical analysis 

of emissions impacts and visibility changes supports such an action and that this determination 

will help EPA, states and affected sources with their planning efforts, reduce regulatory burdens, 

and reduce the cost of regulation. Such a policy is consistent with previous court determinations 

with respect to CAIR=BART.
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Commenter: Mark R. Vickery, Texas Commission on Environmental Policy

Comment:

Texas supports the EPA’s acknowledgement that emission reductions made by EGUs to comply 

with other federal requirements such as the CSAPR1 will suffice to meet the obligation to 

implement BART. However, this support does not mean that Texas agrees that CSAPR is an 

appropriate or lawful exercise of EPA rulemaking authority.

Commenter: Utility Air Regulatory Group (UARG)

Comment:

The proposed rule properly concludes that CSAPR will result in greater emission reductions than 

would application of source-by-source BART, that CSAPR would not result in visibility 

degradation for the 20 percent best days (or even the 20 percent worst days), and that CSAPR

would result in greater visibility improvement on average than application of BART on the 20 

percent worst days (and the 20 percent best days). Accordingly, as explained in EPA’s proposed 

rule, CSAPR plainly satisfies the BART rules’ requirements for approving a BART alternative.

The Utility Air Regulatory Group supports EPA’s proposed decision to designate CSAPR as a 

BART alternative and believes that EPA’s analysis, as described in the proposed rule and 

supported by EPA’s accompanying documentation provides a factually and legally sound basis 

for that decision.

Commenter: Cathy S. Woollums, MidAmerican Energy Holdings Company

Comment:

MidAmerican agrees that the regional haze rules allow for the establishment of alternative 

programs as meeting BART if the “better-than-BART” test can be satisfied. 

Commenter: Lumiant

Comment:

Luminant supports the use of regional trading programs as alternatives to installation of sourcespecific best available retrofit technology (“BART”) to meet the Clean Air Act’s visibility 

requirements in section 169A, 42 U.S.C. § 7491. Luminant also agrees with EPA’s determination 

that CSAPR would be “better than BART” and encourages EPA to finalize that determination.

EPA Response: 

The EPA acknowledges these comments of general support for our proposed action. The EPA 

thanks the commenters for their support of this rule. With respect to the comment recommending 

that the final rule say that both CAIR and CSAPR are better-than-BART, see the preamble to the 

final rule regarding the legal status of CAIR.

III. Support EPA’s Technical Analysis 

1. Two-Pronged Test

Commenter: Utility Air Regulatory Group (UARG)

Comment:
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EPA notes in its Technical Support Document (“TSD”) for the proposed rule, the “better-thanBART test does not specify whether each prong should apply on both best and worst days. For 

purposes of this analysis,...we have considered both the best days and the worst days under both 

the no-degradation prong and the overall-improvement prong, without determining that all 

subsequent better-than-BART demonstrations must do so.” TSD at 41 n.31. UARG believes that 

resolution of this issue is unnecessary in the present rulemaking because, based on EPA’s 

analysis, CSAPR satisfies the better-than-BART test regardless of whether (a) the no degradation

and overall-improvement prongs apply to both the best days and the worst days or (b) only the 

no-degradation prong applies to the best days and only the overall-improvement prong applies to 

the worst days. EPA has consistently interpreted and applied its BART rules; however, in a way 

that makes clear that “reasonable progress goals are defined in terms of improvement on the 

worst 20% days, and no degradation on the 20% best days.” Id.; see, e.g., EPA, Guidance for 

Setting Reasonable Progress Goals Under the Regional Haze Program, at page 2-2 (June 1, 2007) 

(“RPG Guidance”); EPA, Guidance for Tracking Progress Under the Regional Haze Rule, EPA454/B-03-004, at pages 1-5 to 1-7, 1-11 (Sept. 2003). Thus, the most sensible interpretation of 

the provisions setting forth the BART alternative test would similarly require demonstration of 

improvement only for the 20% worst days and require only no degradation for the 20% best 

days.

Commenter: Duke Energy

Comment:

EPA’s technical analysis showing that the Transport Rule + BART elsewhere passes the twopronged visibility test for determining if an alternative program achieves greater reasonable 

progress than source-specific BART, [Duke Energy] strongly supports EPA’s proposed CSAPR 

= BART determination. Duke Energy supports and refers EPA to the comments submitted by the 

Utility Air Regulatory Group in response to EPA’s proposed CSAPR = BART rule.

Commenter: Michael L. Krancer, Pennsylvania Department of Environmental Protection 

(PA DEP)

Comment:

The Regional Haze Rule (RHR), at 40 CPR § 51.308( e)(3), sets out the criteria that must be met 

in order to determine if an alternative program achieves greater reasonable progress than sourcespecific BART. Specifically, the RHR says that dispersion modeling must demonstrate the 

greater reasonable progress for two distinct criteria, referred to as the "two-pronged test" by 

EPA, in order to assess whether visibility conditions at Class I areas would be better with the 

alternative program in place than they would be without it. The analysis the EPA performed to 

assess the Transport Rule under these criteria was robust, comprehensive and definitive.

The first prong of the assessment must show that the alternative program will not cause a decline 

in visibility at any affected Class I area. The analysis EPA performed shows that the 

implementation of the Transport Rule in the states covered by the Transport Rule plus the 

application of BART controls at all BART-eligible EGUs outside the Transport Rule region does 

not cause visibility degradation at any of the 60 affected Class I areas in the eastern Transport

Rule modeling domain (represented by 46 IMPROVE monitors located in 37 complete states and 

four partial states), and nor is visibility degradation predicted at any Class I areas in the larger 

national modeling domain used for the Transport Rule. Additionally, the few instances of 
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modeled predicted visibility degradation at four western U.S. Class I areas appear to be a 

modeling artifact due to the nitrate physics in the model for the conditions found geographically 

at these areas and we agree with EPA that they are not reasonable predictors of the true effects 

on visibility. DEP agrees with EPA's assessment that the implementation of the Transport Rule's 

trading programs will not result in visibility degradation at affected Class I areas. 

The second prong of the assessment must show that the alternative program will result in 

improvements in average visibility across all affected Class I areas as compared to implementing 

source-specific BART. DEP agrees with the EPA analysis summarized in Table 3 in the 

proposed rulemaking notice that the average visibility improvement results, as measured in 

deciviews, for implementing the Transport Rule's trading programs would result in greater 

visibility improvement than would the application of source-specific BART controls nationwide.

EPA Response: 

The EPA agrees that the Transport Rule satisfied the two-pronged test established in the 

Regional Haze Rule.

2. CAMx Output: Nitrate Concentrations

Commenter: Utility Air Regulatory Group (UARG)

Comment:

EPA’s proposed rule discusses a modeling anomaly in the Comprehensive Air Quality Model 

with Extension (“CAMx”), which EPA has used in its assessment of visibility conditions under 

CSAPR and under nationwide BART. The Agency reports that, in the part of its analysis that 

projected effects in 140 Class I areas across the 48 contiguous states (including areas in far

western states such as Arizona and Utah), “a modeling artifact attributable to the nitrate physics

in CAMx” led to a plainly implausible projection that application of both CSAPR + BARTelsewhere and Nationwide BART would result in very small -- in fact, humanly imperceptible --

hypothetical amounts of visibility degradation in a very few far-western Class I areas. 76 Fed.

Reg. at 82228; see id. at 82227 (reporting “predicted average degradations of 0.23, 0.23, and

0.26 deciview[]” on the 20% worst days in three Arizona areas and “a predicted degradation of

0.05 deciview[]” on the 20% best days in one Utah area). EPA properly dismisses this

anomalous result and states that “[a]fter considering the results of the first prong of the visibility

test and examining the CAMx output in more detail ..., we are confident that no degradation in

the four western Class I areas will result from implementation of the Transport Rule trading

programs in the eastern U.S.”

In addition to this finding, EPA discusses “possible modifications to the software used to postprocess CAMx output,” and the Agency seeks comment on an alternate methodology described 

in Appendix B of the TSD for this rule that, according to EPA, “attempts to address the effects of 

very low nitrate concentrations on visibility results.” The information EPA has provided in this 

rulemaking is far too preliminary and limited to support a generally applicable change to a

modeling methodology. EPA has not provided adequate information to enable a full evaluation 

of its proposed potential modeling fix and has failed even to describe the Agency’s rationale for 

applying this particular possible change or, for instance, the implications it could have for 

modeling outside the regional haze context (e.g., with respect to modeling for particulate matter 
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ambient standards applications). Further, while this potential change may correct an anomaly in 

CAMx modeling outputs in this particular setting, it is unclear how such a change might affect 

other applications of CAMx. To support this suggested possible model revision on a general 

basis, EPA would have to provide the public with substantially more information and provide an 

adequate opportunity for public notice and comment on any proposed modeling change.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment:

EPA acknowledges problems with the affects of very low nitrate concentrations on its CAMx

modeling visibility results and seeks comment on its approach to address this issue. See 76 Fed. 

Reg. 82228; TSD for Demonstration of the Transport Rule as a BART Alternative, Appendix B. 

However, this issue, and EPA's approach to addressing it, could have implications beyond this 

rule and CAMx modeling outputs for visibility. For example, presumably CAMx modeling 

outputs for particulate matter would be affected by this same problem. Because of the broader 

potential significance of this problem, any attempt to develop a generally applicable fix should 

be addressed in a separate rulemaking. As such, EPA should clarify in its final rule that the 

approach in this case is limited to the instant circumstances, is not necessarily more broadly 

applicable, and that the approach on this issue in any other context will be addressed through 

separate rulemaking.

EPA Response: 

The modeling issue referenced in the proposal TSD is only known to occur when very low 

modeled nitrate concentrations are predicted, especially in areas with very low relative humidity. 

In this situation, the nitrate concentrations can increase by a large percentage due to relatively 

small emissions changes. In the cases that were identified in the proposal TSD, the nitrate 

concentration for a single day at Mazatzal Wilderness and Pine Mountain Wilderness increased 

by 6533% between the 2014 base case and the Transport Rule + nationwide BART case. The 

extremely low modeled nitrate concentrations that were found to lead to this issue ranged from 

0.0003-0.009 ug/m3.We continue to believe that this is an isolated situation that would occur 

only under specific circumstances where nitrate concentrations are very low. This is not expected 

to be a problem when daily average nitrate concentrations are much larger. Therefore, we would 

not expect this to be an issue in urban areas where nitrate may be relatively large contributor to 

daily and/or annual average PM2.5 concentrations. 

For the final rule, EPA is continuing to use the model results as calculated in the proposal. We 

are not employing any additional “fixes” to the modeling results to account for suspect nitrate 

changes because we do not believe this to be an issue that affects numerous Class I areas. It is 

also evident that this issue affects the nationwide BART results in addition to the Transport Rule 

+ BART elsewhere. Therefore there is no reason to believe that the Transport Rule results are 

biased in any particular way, compared to the nationwide BART results. We are continuing to 

support the removal of the single day of anomalous model results at the 4 Class I areas 

(documented in Appendix B of the proposal TSD) to show that we do not expect visibility 

degradation at any Class I areas due to the Transport Rule.

EPA examined all cases where the modeled nitrate at Class I areas increased by more than a 

factor of 2 between the 2014 base case and the 2014 Transport Rule + BART elsewhere control 
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case. On all of these particular days, the 2014 base case nitrate concentration was between 0 and 

0.75 ug/m3. This shows that large percentage nitrate increases do not occur on relatively high 

modeled nitrate days. And further, on the modeled nitrate concentration days that had a large 

percentage increase and concentrations that were < 0.75 ug/m3 but > 0.1 ug/m3, there was a 

concurrent reduction in daily average sulfate of at least 20%. A nitrate increase on these days 

may occur due to “nitrate replacement”. The sulfate reduction frees up ammonia gas that would 

otherwise have formed ammonium sulfate aerosols. The additional free ammonia reacts with 

nitric acid to form additional particulate nitrate. Based on these results, the model is generally 

responding to emissions controls as would be expected. 

It should also be noted that the factor of 2 increases in nitrate are not limited to the Transport 

Rule + BART elsewhere case. The Nationwide BART case had a similar number of site-days 

with factor of 2 or more increases in nitrate at Class I areas. In the TR+BART elsewhere 36km 

modeling results, there were 295 site-days with a factor of 2 nitrate increase. In the Nationwide 

BART 36km modeling results there were 261 site-days with a factor of 2 nitrate increase. 

3. Selection of Affected Class I Areas

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment:

While recognizing that there is no affect on EPA's ultimate determination, the FCG-EC believes 

that EPA may properly rely on the 60 Class I areas in the eastern modeling domain as part of its 

"better-than-BART" evaluation, as opposed to the 140 Class I areas located in the national 

modeling domain. This approach is supported by EPA's own acknowledgment of the limitations 

of the national modeling domain. See 76 Fed. Reg. 82225; n.19. However, EPA should clarify 

that this rulemaking does not establish the method for determining, or ultimate determination of, 

which Class I areas are, or may be, "impacted" or "affected" for purposes of evaluating other 

specific BART alternatives per 40 CFR § 51.308(e)(3). As EPA has recognized, states retain 

discretion to appropriately make such determinations for specific proposed BART alternatives. 

See 71 Fed. Reg. at 60621 ; 70 Fed. Reg. at 39138.

Commenter: Utility Air Regulatory Group (UARG)

Comment: 

EPA requests comment on whether the affected Class I areas assessed for purposes of the 

CSAPR =BART Rule should be the 60 Class I areas, the larger set of 140 Class I areas, or some 

other set. EPA states in the proposed rule that “given the modeling results ..., the choice between 

the 60 Class I areas or the 140 Class I areas does not affect our proposed conclusion that both 

prongs of the two-prong test are met.” Id. Given the nature of visibility impairment and interstate 

transport of visibility-impairing pollutants, UARG does not believe that there is any appreciable 

risk that implementation of CSAPR would lead to degradation of visibility conditions in any 

Class I areas, including far-western areas. EPA can, therefore, properly rely on an assessment of 

visibility impacts in the 60 Class I areas without referring to results in the other 80 areas. In any 

event, however, because either assessment approach yields the same result, and because both 

assessment approaches support the conclusion that CSAPR is a lawful and reasonable BART 

alternative, EPA may appropriately confirm its determination that CSAPR = BART is a proper 

BART alternative based on either approach. 
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UARG notes that the present rulemaking properly does not entail establishment of criteria for 

determining which Class I areas are or may be “impacted” or “affected” Class I areas, within the 

meaning of 40 C.F.R. § 51.308(e)(3), for purposes of any analysis of possible other BART 

alternatives, including possible BART alternatives that states may assess or propose. As EPA has 

made clear in final rulemaking actions, states have discretion to make appropriate judgments 

regarding this matter in the context of specific proposed BARTalternatives. 71 Fed. Reg. 0612, 

60621 (Oct. 13, 2006); 70 Fed. Reg. at 39138.

EPA Response: 

The EPA agrees that we could rely on either the 60 or the 140 class I areas to make the 

determination that the Transport Rule is a BART alternative and that this rulemaking does not 

necessarily establish that these are the Class I areas that would be used in evaluating other 

alternatives. 

4. EPA’s Proposed Determination that Participation in CSAPR for Ozone 

Season NOx Satisfies BART

Commenter: Michael Olive, Progress Energy

Comment:

Progress Energy supports EPA's proposed "better-than-BART” determination for CSAPR and

EPA's proposed determination that participation in CSAPR's ozone-season NOx program alone

satisfies BART NOx requirements for subject states, which include Florida. However, rather

than codifying that determination by replacing all references to CAIR in 40 CFR Section

51.308(e)(ii)(4) with references to CSAPR, Progress Energy urges EPA to codify both its CAIR

and CSAPR "better-than-BART" determinations side-by-side. This would ensure necessary

flexibility in light of the uncertainty surrounding CAIR and CSAPR's status due to the stay and

pending judicial review of CSAPR.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment:

The FCG-EC generally supports EPA's determination that CSAPR satisfies BART. And, more 

particularly, the FCG-EC supports EPA's determination that participation in CSAPR' s ozoneseason NOx program alone satisfies BART-NOx requirements for subject states. 

EPA Response: 

EPA acknowledges support for its conclusions for NOx states which are ozone season-only in 

the Transport Rule. With respect to the comment recommending that the final rule say that both 

CAIR and CSAPR are better-than-BART, see the preamble to the final rule regarding the legal 

status of CAIR.

5. Modeled Control Scenarios: BART Limits

Commenter: Utility Air Regulatory Group (UARG)
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Comment:

To evaluate emissions under application of BART, EPA modeled the presumptive BART limits 

for NOx and SO2 as specified in EPA’s BART Guidelines, “unless an actual emission rate at a 

given unit with existing controls is lower” than the presumptive limit. EPA also modeled 

emissions under application of BART using a number of assumptions that EPA characterizes as -

- and that UARG agrees are -- “stringent.” The fact that, even using these very conservative 

assumptions, EPA’s analysis shows that CSAPR + BART-elsewhere produces greater visibility 

improvement than nationwide source-by source BART, and without degrading visibility in any 

Class I area, provides compelling support for EPA’s proposed determination that CSAPR will 

lead to greater reasonable progress than BART. The assumptions that EPA used, however, 

should not be viewed as making any determination or establishing any precedent as to what 

BART should be for any given source or as to whether any given source is BART-eligible or is 

properly subject to BART or any other emission limit. EPA’s analysis in this rulemaking is 

appropriate for the special purpose of conducting a conservative, screening-level analysis that 

shows that CSAPR produces greater reasonable progress than BART. That analysis of course 

cannot take the place of site-specific assessments of BART-eligibility, “cause or contribute,” and 

BART emission limit determinations for individual facilities, as required by the Act and EPA’s 

BART rules, and UARG does not understand EPA’s analysis as suggesting otherwise.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment:

EPA should clarify that the unit-specific BART limits developed to compare its "Nationwide 

BART" and "Transport Rule + BART-elsewhere" scenarios have no import beyond this 

rulemaking. See 76 Fed. Reg. 82225. And, in particular, EPA should clarify that these BART 

limits have absolutely no bearing on the ultimate determination of actual or presumptive BART 

limits at any source. 

EPA Response: 

The EPA agrees that the presumptive limits used for this analysis are not determinant for BART 

limits for case-by-case BART determinations. Those limits could be more stringent or less 

stringent than the presumptive limits after a technical analysis that assesses each of the five 

factors required for a BART determination.

IV. General Comments Opposing EPA’s “Better than BART” 

Determination 

Commenter: Mass Comment Campaign sponsored by CREDO Action (1,109 CREDO 

Action Members in Kentucky)

Comment: 

I urge you to retain the full, existing protections for restoring clean air to national parks and

wilderness areas in the Eastern U.S. As someone who cares deeply about our national parks and 

wilderness areas, I ask you to abandon the proposal to substitute the Cross State Air Pollution 

Rule (CSAPR) trading program for these longstanding laws.
Internal Review Draft 5/4/2012

Page 15 of 149

Commenter: Mass Comment Campaign sponsored by CREDO Action (549 CREDO Action 

Members in Louisiana)

Comment:

I urge you to retain the full, existing protections for restoring clean air to national parks and

wilderness areas in the Eastern U.S. As someone who cares deeply about our national parks and 

wilderness areas, I ask you to abandon the proposal to substitute the Cross State Air Pollution 

Rule (CSAPR) trading program for these longstanding laws.

Commenter: Mass Comment Campaign sponsored by CREDO Action (1,569 CREDO 

Action Members in Tennessee)

Comment:

I urge you to retain the full, existing protections for restoring clean air to national parks and

wilderness areas in the Eastern U.S. As someone who cares deeply about our national parks and 

wilderness areas, I ask you to abandon the proposal to substitute the Cross State Air Pollution 

Rule (CSAPR) trading program for these longstanding laws.

Commenter: Mass Comment Campaign sponsored by CREDO Action (3,217 CREDO 

Action Members in New Jersey)

Comment:

I urge you to retain the full, existing protections for restoring clean air to national parks and

wilderness areas in the Eastern U.S. As someone who cares deeply about our national parks and 

wilderness areas, I ask you to abandon the proposal to substitute the Cross State Air Pollution 

Rule (CSAPR) trading program for these longstanding laws.

Commenter: Mass Comment Campaign sponsored by CREDO Action (2,872 CREDO 

Action Members in North Carolina)

Comment:

I urge you to retain the full, existing protections for restoring clean air to national parks and

wilderness areas in the Eastern U.S. As someone who cares deeply about our national parks and 

wilderness areas, I ask you to abandon the proposal to substitute the Cross State Air Pollution 

Rule (CSAPR) trading program for these longstanding laws.

Commenter: Lon Burnam, District 90, Texas House of Representatives

Comment:

I urge the EPA to strengthen its proposal for regional haze, Docket # EPA-HQ-OAR-2011-0729.

I care about our iconic open spaces and want them protected from haze pollution which both 

obscures the spectacular views but also makes the air unsafe to breathe. I ask you to abandon the 

pollution trading program for the Cross-State Air Pollution Rule (CSAPR), which was presented 

as an alternative to determining Best Available Retrofit Technology (BART). This trading 

program will allow the oldest and dirtiest coal plants, from which our parks and wilderness areas 

suffer the most, to continue operating without implementing modem pollution controls. EP A's 

proposal allows pollution trading and would not provide the same level of assurances and 

protections for our treasured public lands. Both CSAPR and the Regional Haze Rule are 

necessary; CSAPR should not take the place of the Regional Haze Rule. I specifically request 

that you abandon the December 23rd action, which allows the CSAPR to serve as an alternative 

to determining source-by-source BART.
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Commenter: Ken Kramer, Lone Star Chapter, Sierra Club

Comment:

The Lone Star Chapter writes with concerns related to EPA's December 23rd action to allow the 

Cross-State Air Pollution Rule ("CSAPR") to serve as an alternative to determining source-bysource Best Available Retrofit Technology ("BART"). The Texas Commission on 

Environmental Quality (TCEQ) has already exempted all of the polluting sources in Texas from 

complying with the BART program. Therefore, we look to the EPA as the responsible party to 

implement the Clean Air Act's regional haze rules in Texas. The proposed alternative to BART 

would allow some of the largest sources of sulfur dioxide pollution in Texas to escape the 

requirements of BART and instead purchase emissions allowances from states as far away as 

Minnesota and South Carolina. These distant emissions reductions in other states, rather than 

Texas, may not protect Big Bend or Guadalupe Mountains as intended by the Rule. EPA's 

proposal to permit states to rely on emissions reductions made under CSAPR to satisfy their 

obligations under BART to protect Class I air quality is flawed and will not adequately achieve 

the goals of the Rule. 

Commenter: Mass Comment Campaign Sponsored by Care2 (There were 5,208 individual 

commenters who submitted essentially the same comment as follows.)

Comment:

I urge you to retain the full, existing protections for restoring clean air to national parks and 

wilderness areas in the eastern U.S. As someone who cares deeply about our national parks, I ask 

you to abandon the proposal to substitute the Cross State Air Pollution Rule (CSAPR) trading 

program for these longstanding laws. Many parks and wild lands -- especially in the east --

would suffer as a result. Specifically, I support the continued use of the Regional Haze Rule to 

clean up the oldest and dirtiest sources of pollution and haze that impact our nation's treasured 

national parks and wilderness areas. I oppose EPA's current proposal to exempt park polluting 

coal plants in the eastern states from the best, widely available pollution controls. EPA's proposal 

allows pollution trading and would not provide the same level of assurances and protections for 

our treasured public lands. Both CSAPR and the Regional Haze Rule are necessary; CSAPR 

should not take the place of the Regional Haze Rule.

Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment:

EPA’s position that CSAPR is “better than BART” is flawed; CSAPR is not better than BART 

and will not achieve greater reasonable progress to natural visibility conditions in these states 

than BART. Therefore, CSAPR cannot serve as an alternative to BART under the RHR. 

Therefore, EPA’s proposed partial FIPs as to Alabama, Mississippi, North Carolina, and South 

Carolina must be abandoned. Sierra Club does agree with EPA’s partial disapproval of Alabama, 

Mississippi, North Carolina, and South Carolina’s SIPs due to their reliance on CAIR as the 

BART-alternative. For many of the same reasons that CSAPR is an inappropriate BARTalternative, CAIR is also an inappropriate alternative. 

Commenter: National Parks Conservation Association on behalf of numerous 

organizations

Comment:
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Page 17 of 149

Cleaning up the Haze: Protecting People and America’s Treasured Places

Synopsis: This report calls on EPA to drop its proposed BART rule in order to fully protect 

iconic and natural places from unhealthy and unsightly air. According to this report, EPA’s 

proposed rule would allow nearly 150 coal plant units to avoid installing widely available and 

cost effective pollution controls and would exempt these plants from having to achieve emission 

rates routinely required at coal plants nationwide. 

The report recommends that EPA:

1. Ensure that clean-up plans for polluters will result in air quality improvements at Class I areas. 

CSAPR does not require that the best available retrofit technology is installed or operated at 

coal-fired power plants that impair air quality at national parks and wilderness areas. EPA must 

make certain that adequate emission reductions occur at pollution sources that actually affect 

Class I areas in order to fully meet the stated requirements and goals of the BART program.

2. Accurately account for the emission reductions possible under the BART program. In 

assuming that CSAPR would achieve better results than BART, EPA significantly 

underestimates the amount of pollution that would actually be reduced through the installation 

and operation of the best available retrofit technology. EPA must be consistent in its evaluation 

and analyze every power plant impairing air quality at a Class I area for adequate best available 

retrofit technology controls. EPA must then revisit its conclusion that CSAPR is better than 

BART across the eastern half of the U.S in light of such a revised analysis.

The report lists 12 coal-fired power plants in the CSAPR region that the commenters maintain 

will “escape urgently needed pollution control requirements” if EPA does not abandon its 

proposal. Details of these examples may be found in Docket ---

EPA Response:

[placeholder]

V. Comments Questioning the Legal Authority for Trading Program 

Alternatives to BART

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

There is no statutory authority for EPA to authorize reliance on CSAPR in place of BART as it 

has proposed to do here. EPA relies on two court decisions as authority for its proposal: Center 

for Energy & Economic Dev. v. EPA, 398 F.3d 653 (D.C. Cir. 2005) (CEED) and Utility Air 

Regulatory Group v. EPA, 471 F.3d 1333, 1340 (D.C. Cir. 2006) (UARG). However, the force 

of such holdings has been undermined by subsequent D.C. Circuit decisions. In North Carolina 

v. EPA, 531 F.3d 896, 906-08 (D.C. Cir. 2008), the Court invalidated the CAIR trading program 

because it failed to conform with the underlying statutory mandate to measure each state’s 

significant contribution to specific downwind nonattainment areas and eliminate them in an 

isolated state-by-state manner. Id. at 907. Likewise here, EPA‘s BART substitution proposal fails 

to conform with the Act‘s express mandate that EPA rules require haze plans to include BART at 
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each BART eligible source for the purpose of eliminating or reducing visibility impairment 

caused or contributed to by that source in any Class I area. See CAA § 169A(b)(2)(A), 42 U.S.C. 

§ 7491(b)(2)(A). In NRDC v. EPA, 571 F.3d 1245, 1255-58 (D.C. Cir. 2009), the Court rejected 

an EPA attempt to substitute an emissions trading program for the Clean Air Act‘s express 

mandate for reasonably available control technology (RACT) at existing sources in ozone 

nonattainment areas. EPA claimed its substitution should be allowed because the trading 

program was estimated to achieve a beyond-RACT degree of control regionally, and would 

better serve statutory purposes, but the Court said the region-wide approach did not meet the 

statutory requirement that the reductions be from sources in the nonattainment area. Id. at 1256. 

Likewise, EPA‘s region-wide approach here flouts the statutory mandate that “each BART 

eligible source causing or contributing to visibility impairment in” any Class I area must install 

BART to prevent or reduce such impairment.

More broadly, other decisions post-dating CEED and UARG have emphasized that the terms 

each and any must be given their literal, expansive meanings when used in the Act. See 

Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007) (repeated use of the word ‘any’ in Clean Air 

Act provision demonstrated that statutory language was sweeping in its protective reach); Sierra 

Club v. EPA, 536 F.3d 673, 678 (D.C. Cir. 2008) (If Congress meant that potentially thousands 

of permits could be issued without adequate monitoring requirements, then it would not have 

said [e]ach permit ... shall set forth ... monitoring ... requirements to assure compliance with the 

permit terms and conditions. There can be no doubt about the plain meaning of this phrase. 

‘Each’ means [e]very one of a group considered individually. (internal quotations and citations 

omitted)); New York v. EPA, 443 F.3d 880, 886 (D.C. Cir. 2006) (holding that there is “no 

reason why ‘any‘ should not mean ‘any‘); New Jersey v. EPA, 517 F.3d 574, 582 (D.C. Cir. 

2008) (affirming that “[i]n the context of the CAA, the word ‘any’ has an expansive meaning)

(internal quotations omitted)); NRDC v. EPA, 489 F.3d 1250, 1257-58 (D.C. Cir. 2007) 

([a]pplying the usual meaning of ‘any’ under Chevron step one).

For all the foregoing reasons, EPA’s proposal to substitute CSAPR for BART violates the plain 

language of the Act. If CEED and UARG could be read as authorizing such substitution, those 

decisions would be in conflict with the plain language of the Act, and therefore in error. The Act 

does not allow EPA‘s rules to waive the statutory mandate for BART at “each” BART-eligible 

source based on a claim that other control methods will achieve greater reasonable progress on 

average. See also CAA § 169A(a)(4), 42 U.S.C. § 7491(a)(4) (requiring EPA‘s haze rules to 

assure (A) reasonable progress...., and (B) compliance with the requirements of this section,

requirements that include BART as a separate mandate (emphasis added)). 

[FN 17] The CEED opinion erroneously states that the addition of § 169B in 1990 “clarified that the focus of the 

Act was to achieve “actual progress an improvement in visibility,” 42 U.S.C. § 7492(b), not to anoint BART the 

mandatory vehicle of choice. 398 F.3d at 660. This assertion reads far more into § 169B(b) than the language of that 

subsection can possibly bear, as the provision merely directs EPA to assess and report to Congress the actual 

progress and improvement in visibility in Class I areas. It does not amend or limit the Act‘s pre-existing BART 

mandate, much less suggest that progress goals can supplant that mandate. Indeed, elsewhere in § 169B, Congress 

reinforced the BART mandate by directing EPA to “carry out the Administrator‘s regulatory responsibilities under 

section 7491 of this title,” the section that includes the BART mandate. 42 U.S.C. § 7492(e)(1). Likewise, there is 

nothing in § 169B‘s authorization of visibility transport regions and commissions to suggest authority to waive the 

BART mandate, as CEED erroneously implies. 
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Page 19 of 149

EPA Response: 

[placeholder]

VI. Comments Asserting that CSAPR Cannot be Considered “Surplus” to 

Other Requirements

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

Governing regulations require that BART alternatives provide emission reductions surplus to 

those resulting from programs implemented to meet other requirements of the Clean Air Act. See 

40 C.F.R. § 51.308(e)(2)(iv). CSAPR, as a program implemented to meet § 110 of the Clean Air 

Act, cannot satisfy this requirement. 

EPA Cannot Demonstrate That CSAPR Yields Surplus Emissions Reductions

EPA’s reliance on CSAPR also fails at the outset because CSAPR cannot supply emission 

reductions for purposes of the regional haze program that are additive to what other programs of 

the Clean Air Act already require. Under 40 C.F.R. § 51.308(e)(2)(iv), a state that seeks to use an 

alternative program in lieu of BART must demonstrate not only that the alternative achieves 

greater reasonable progress toward reaching natural visibility conditions at Class I areas but also 

that the emission reductions resulting from the emissions trading program or other alternative 

measure will be surplus to those reductions resulting from measures adopted to meet 

requirements of the CAA as of the baseline date of the SIP. EPA cannot make this showing when 

adopting CSAPR FIPs or promulgating a regulation allowing states to adopt SIPs that rely on 

CSAPR in lieu of BART. CSAPR was adopted prior to EPA’s issuance of this better-than-BART 

proposal, and it is slated to achieve emissions reductions in 2012, well in advance of the 2014 

baseline date for the proposed FIPs and in advance of any SIPs that may seek to rely on CSAPR 

as an alternative to BART. Moreover, under Sections 110(a)(1) and (a)(2)(D)(i) of the Act, states 

were required to adopt SIPs by the year 2000 - 3 years after promulgation of the 1997 ozone and 

PM NAAQS - to prohibit emissions from within the state from contributing significantly to 

nonattainment or interference with maintenance by any other state with respect to such NAAQS. 

Thus, any emission reductions that were required to meet that mandate cannot be credited toward 

the calculation of greater reasonable progress attributed to CSAPR. Because CSAPR cannot 

possibly satisfy the surplus emissions requirement of § 51.308(e)(2)(iv), EPA‘s proposal is 

necessarily inconsistent with its own governing regulations.

Commenter: Kristin A. Henry, Sierra Club

Comment:

Governing regulations require that BART alternatives provide emission reductions surplus to 

those resulting from programs implemented to meet other requirements of the Clean Air Act. See 

40 C.F.R. § 51.308(e)(2)(iv). It is not clear that CSAPR in Indiana can satisfy this requirement.

EPA’s regional haze regulations require that “the emission reductions resulting from the 

emissions trading program or other alternative measure [employed in place of BART] will be 
Internal Review Draft 5/4/2012

Page 20 of 149

surplus to those reductions resulting from measures adopted to meet requirements of the CAA as 

of the baseline date of the SIP.” 40 C.F.R. 51.308(e)(2)(iv). That is not the case with CSAPR. 

Most of the reductions required by CSAPR are also required by the Clean Air Act’s New Source

Review program, Title V program, and various nonattainment and maintenance SIPs. Namely, 

under § 110(a)(1) & (a)(2)(D)(i) of the CAA, states were required to adopt SIPs by the year 

2000—3 years after promulgation of the 1997 ozone and PM NAAQS—to prohibit emissions 

from within the state from contributing significantly to nonattainment or interference with 

maintenance by any other state with respect to such NAAQS. CSAPR was promulgated to meet 

this requirement. Therefore, CSAPR, as a program adopted prior to EPA’s issuance of this 

better-than-BART proposal and implemented to meet § 110 of the Clean Air Act, can never 

satisfy this surplus requirement.

As a result, EPA’s analysis precludes a fair comparison between application of BART and sole 

reliance on CSAPR instead. In comparing the visibility impacts attributable to CSAPR and 

BART respectively, EPA modeled an artificial BART scenario in which nationwide BART 

would apply without CSAPR. CSAPR is independently required by Section 110 of the Clean Air 

Act and will apply in any case (assuming it withstands legal challenge), it is incumbent on EPA 

to evaluate what BART would add to CSAPR in the way of emission reductions that could

contribute to reasonable progress. Indeed, emission reductions resulting from CSAPR were 

meant to be “in addition to” the reductions from application of BART under the Haze Rule, not

“rather than”—which is what EPA’s CSAPR “better-than-BART” effectively makes them. 

EPA’s proposal essentially nullifies the Haze Rule in those states to which CSAPR applies—

instead of reductions in those states from both CSAPR and BART, they only have CSAPR 

reductions. In all likelihood, the improvement necessary to achieve the CAA’s visibility goal of 

preventing any future, and remedying any existing, visibility impairment in Class I areas will 

require BART controls, plus controls on additional EGUs such as required under CSAPR (or 

CAIR).

Ultimately, EPA has improperly linked CSAPR to the Haze Rule by determining that certain 

CSAPR program provisions can in effect substitute for related but different visibility 

requirements under the Haze Rule (e.g., BART requirements). This is inappropriate, especially 

considering the purpose and scope of these two rules. Namely, CSAPR focuses on regional 

reductions in pollutants to reduce health risks, whereas the Haze Rule focuses on localized 

reduction in pollutants to reduce visibility impairments in specific areas. Compare 76 Fed. Reg.

48208 (Aug. 8, 2011), with 42 U.S.C. § 7491(a)(1). As a result, the reductions mandated by 

CSAPR —which EPA now proposes to adopt in order to achieve the goal of the Haze Rule—

were made with regional reductions of pollutants in mind, not Class I area-specific reductions.

EPA Response: 

Please see section II.B.1 of the preamble for EPA’s response to the comments that the Transport 

Rule emission reductions are not “surplus” as defined by the Regional Haze Rule. 

VII. Comments Asserting that the CAA Does Not Allow EPA to Exempt 

BART-eligible Sources by Relying on CSAPR
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Commenter: Earthjustice/Texas

Comment:

The Text of the Clean Air Act Precludes EPA from Relying on CSAPR as a BART-Alternative 

in the Texas Partial FIP

As detailed more fully in Earthjustice’s accompanying comment letter on the overarching flaws 

of EPA’s proposed rule, EPA cannot rely on CSAPR as an alternative to BART. The plain

language of the Clean Air Act states that regional haze plans must “contain such emission limits,

schedules of compliance and other measures as may be necessary to make reasonable progress

toward meeting the national [visibility] goal . . . including [BART controls on sources subject to

BART].” 42 U.S.C. § 7491(b)(2)(A). The Act explicitly states that three conditions must be 

satisfied before a BART-eligible EGU may be exempted from BART: (1) EPA must determine, 

after notice and opportunity for public hearing, that the EGU does not “by itself or in

combination with other sources” cause or contribute to significant visibility impairment at a

Class I area; (2) if the power plant has a design capacity of 750 megawatts or greater, the owner

or operator must demonstrate to EPA that the plant is located at such a distance from all Class I

areas that it does not “by itself or in combination with other sources” emit pollution that may

reasonably be anticipated to cause or contribute to significant visibility impairment at a Class I

area; and (3) the affected Federal Land Managers must concur with the BART exemption. Id. §

7491(c).

CSAPR does not meet the statutory criteria for a BART exemption. EPA has not shown that, 

with CSAPR, no Texas BART-eligible EGU, by itself or in combination with other sources, will 

cause or contribute to visibility impairment at Big Bend, Guadalupe Mountains, or Class I areas 

in other states. Instead, as discussed below, modeling shows that BART-eligible EGUs in Texas 

likely will cause visibility impairment at multiple Class I areas even under CSAPR. See

infra at 18–22. Consequently, EPA could not possibly make the requisite showing to exempt

BART-eligible EGUs in Texas from BART requirements. Moreover, the Federal Land

Managers at Big Bend, Guadalupe Mountains, and other Class I areas have not concurred with

EPA’s proposed BART exemption for Texas’s BART-eligible EGUs. To the contrary, the only

FLM responses to the national rulemaking have been critiques about the program’s

shortcomings, including its inability to protect Class I areas against pollution hotspots. See infra

at 18–19 (discussing National Park Service comments). As a result, there is no statutory authority 

for EPA to exempt BART-eligible EGUs in Texas from BART by relying on CSAPR. EPA’s 

interpretation of the statute, in which it adopted CSAPR as a BART-alternative in a partial FIP 

for Texas, cannot be reconciled with Congress specifying very narrow standards for exempting a 

single source from BART.

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

For the reasons explained below, EPA cannot exempt states from evaluating and applying 

source-specific BART consistent with the Clean Air Act. The plain language of the Act requires 

installation and operation of BART to achieve reasonable progress toward meeting the national 

goal of eliminating visibility impairment at Class I areas. See Clean Air Act (CAA) § 

169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A). 
Internal Review Draft 5/4/2012

Page 22 of 149

The Plain Language of the Clean Air Act Precludes Reliance on CSAPR to Exempt Sources 

from BART

EPA cannot consistent with the plain language of the Clean Air Act authorize states to rely on 

CSAPR to opt out of BART. Nor can EPA satisfy its FIP obligations (as proposed at 76 Fed. 

Reg. at 82221) by promulgating a FIP that substitutes CSAPR for BART in each state where a 

haze FIP is required. Under the Clean Air Act, BART is a mandatory measure that must be 

implemented to achieve reasonable progress toward restoration of natural visibility conditions. 

Section 169A(b)(2)(A) expressly requires states to adopt SIPs that “contain such emission limits, 

schedules of compliance and other measures as may be necessary to make reasonable progress 

toward meeting the national goal . . . including installation and operation of BART at each

BART-eligible source that emits any air pollutant which may reasonably be anticipated to cause 

or contribute to any impairment of visibility in any Class I area.” See CAA § 169A(b)(2)(A), 42 

U.S.C. § 7491(b)(2)(A) (emphasis added). The only permissible exemption from BART is 

expressly set forth in § 169A(c). See CAA § 169A(c), 42 U.S.C. § 7491(c). Under § 169A(c), a 

source can be exempt from BART only if EPA, by rule promulgated with sufficient notice and 

opportunity for public comment, determines that the source does not either by itself or in 

combination with other sources “emit any air pollutant which may reasonably be anticipated to 

cause or contribute to a significant impairment of visibility in any mandatory class I federal area.

CAA § 169A(c)(1), 42 U.S.C. § 7491(c)(1). Further, EPA cannot exempt a fossil-fuel fired 

power plant with a design capacity of 750 megawatts or more, unless the owner or operator of 

the plant can demonstrate that the power plant is located far enough away from the class I areas 

and does not or will not by itself or in conjunction with other facilities cause or contribute to 

visibility impairment. CAA § 169A(c)(2), 42 U.S.C. § 7491(c)(2). Finally, the appropriate 

Federal Land Manager or Managers must agree with the exemption before it can go into effect. 

CAA § 169A(c)(3), 42 U.S.C. § 7491(c)(3).

Thus, EPA‘s authority to exempt sources from BART is very narrowly defined. Nowhere in 

Section 169A did Congress contemplate or sanction alternative programs that would operate in 

lieu of BART. “Where Congress explicitly enumerates certain exceptions to a general 

prohibition; additional exceptions are not to be implied, in the absence of evidence of a contrary 

legislative intent.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616–17 (1980); see also TRW 

Inc. v. Andrews, 534 U.S. 19, 28 (2001) (quoting same). This follows from the - cardinal 

principle of statutory construction that - a statute ought, upon the whole, to be so construed that, 

if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. 

TRW, 534 U.S. at 31. Neither EPA nor the Courts can read the Clean Air Act in such a way that 

would render an - express exception . . . insignificant, if not wholly superfluous. Duncan v. 

Walker, 533 U.S. 167, 174 (2001).

Commenter: National Parks Conservation Association on behalf of a number of 

organizations

Comment:

As we explain in the national comments, the regulatory language establishing BART alternative 

programs is an impermissible construct of the Clean Air Act’s BART exemption. But for the 

sake of argument, if the regulations were legitimate, EPA’s proposed partial FIP for Georgia 

relying on CSAPR to absolve BART sources from adequate BART limits does not meet the 

regulatory criteria for an alternative BART program. The Regional Haze Rule states that a 
Internal Review Draft 5/4/2012

Page 23 of 149

BART-alternative program “must achieve greater reasonable progress than would be achieved 

through the installation and operation of BART at all sources subject to BART in the State and 

covered by the alternative program.” 40 C.F.R. § 51.308(e)(2). In order for a trading program 

such as CSAPR to be “better than BART,” dispersion modeling must demonstrate that (1) 

visibility under the BART-alternative would not decline in any Class I area, and (2) the BARTalternative would result in overall visibility improvement “by comparing the average differences 

between BART and the alternative over all affected Class I areas.” Id. § 51.308(e)(3). 

EPA Response: 

[placeholder]

VIII. Comments Asserting that Source-Specific BART Would Achieve 

Greater Reasonable Progress than CSAPR

Commenter: William O’Sullivan, New Jersey Division of Air Quality

Comment:

The State of New Jersey does not support the proposed rule. Based on the cumulative assessment 

of all BART-eligible sources in the Mid-Atlantic Northeast Visibility Union (MANE-VU) 

region, all member states with BART -eligible facilities contribute to visibility impairment at 

Class I areas. As a member state, the State of New Jersey followed the subsequent MANE-VU 

Board decision that any source that meets the BART eligibility requirements should be subject to 

a top-down BART determination. The USEPA approved the State of New Jersey's Regional 

Haze State Implementation Plan revision, including BART determinations, reasonable progress 

goals, and sulfur in fuels rule, effective February 2, 2012. Coal-fired electric generating units 

(EGUs) that do not have add-on air pollution controls are very high emitters of NOx and S02 

which contribute to the formation of regional haze, and BART-eligible EGUs should be subject 

to BART. At a minimum, any coal-fired EGU greater than 25 megawatt (MW) in size should be 

required to meet the presumptive limits outlined in the as outlined in Appendix Y to Part 51-

Guidelines for BART Determinations under the Regional Haze Rule.

To allow CSAPR as an alternative to BART within the eastern half of the United States would 

diminish the potential for greater reductions of visibility-impairing emissions from upwind 

states, and would impair NJDEP's efforts to protect and restore visibility at the Brigantine 

Wilderness Area in the Edwin B. Forsythe National Wildlife Refuge. I urge the USEPA to 

reconsider substituting CSAPR for CAIR as an alternative to source-specific BART 

determination for EGUs.

Commenter: National Parks Conservation Association and Earthjustice

Comment:

EPA has not shown that, with CSAPR, each Florida BART-eligible EGU will (1) not cause or 

contribute to visibility impairment, (2) demonstrate that visibility would not decline and (3) 

demonstrate that the CSAPR would result in overall visibility improvement at Chassahowitzka 

and St. Marks wilderness areas and Everglades National Park, or Class I areas in other states. 

Consequently, EPA could not possibly make the requisite showing to exempt BART-eligible 
Internal Review Draft 5/4/2012

Page 24 of 149

EGUs in Florida from BART requirements. Moreover, the Federal Land Managers at 

Chassahowitzka and St. Marks wilderness areas and Everglades National Park, and other Class I 

areas have not expressly concurred with EPA’s proposed BART exemption for Florida EGUs. 

To the contrary the only FLM responses to the national rulemaking have been critiques about the 

program’s shortcomings including its inability to protect Class I areas against pollution hotspots. 

As a result, there is no statutory authority for EPA to exempt BART-eligible EGUs in Florida 

from BART by relying on CSAPR. 

EPA purports only to show that CSAPR is better than BART nationwide. Neither EPA nor 

Florida has attempted to demonstrate that CSAPR is better than BART for Florida. The existing 

analyses demonstrate that CSAPR does not provide greater emission reductions at BART eligible 

EGUs in Florida that likely cause or contribute to visibility impairment, and therefore will not 

achieve greater than reasonable progress at implicated Class I areas. EPA’s projection that 

cumulative NOx emissions from BART-eligible EGUs in Florida will be 9,178 tons lower under 

BART than under CSAPR is illustrated at individual units.

The commenter provided examples for specific sources in the comment letter.

Commenter: National Parks Conservation Association on behalf of numerous 

organizations

Comment:

CSAPR’s Uncertainties and Lack of Source Specific Emission Reduction Requirements Make It 

Unsuitable as a BART Alternative in Georgia 

EPA's “CSAPR is better than BART” determination fails to account for the inherent 

uncertainties in emissions reductions under CSAPR. BART is a technology that must be installed 

and operated year-round, and a corresponding emission limit that must also be met year-round. 

BART emissions limits must be met on a continuous basis. See 42 U.S.C. § 7602(k); CAA § 

302(k). The BART Guidelines require enforceable emission BART limits to be reflected in 

permits for EGU’s which must “specify an averaging time of a 30-day rolling average” See 70 

Fed. Reg. 39104, 39172 (July 6, 2005).While BART limits are typically set as 30-day rolling 

averages, visibility impacts are measured based on a one-hour averaging time. The longer the 

averaging period, the higher emissions may be in any given hour during that averaging period. 

An emission limit based on annual averages allows for much higher short-term emissions – and 

thus much greater short-term impact on visibility – than would a limit based on a 30-day rolling 

average. These requirements allow regulatory agencies to predict with a high level of certainty 

the emissions reductions that will result from BART to ensure improvement in visibility from 

reductions on the 20% worst days and no degradation on the 20% best days in Class I areas. 

By contrast, CSAPR allows trading of emissions allowances between sources, including between 

sources in difference states, rather than imposing a fixed emission limit for each source. EPA’s 

assessment of CSAPR Better than BART does not and likely cannot assess the unknown impact 

of complex trading under CSAPR on the Class I areas affected by Georgia sources. EPA cannot 

say with any assurance that it knows specific impacts to Class I areas in Georgia as it has not 

modeled the vagaries of trading between states coupled with the complex differences in 

geography and weather patterns that will affect a specific Class I area. Although each Georgia 

EGU has a CSAPR allocation, the EGUs may trade allowances within certain limits. 

Regardless of whether this flexibility is a policy virtue for CSAPR as a vehicle for ensuring 

compliance with the NAAQS, this flexibility is a fundamental problem for using CSAPR to 
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comply with the visibility improvements required by the Regional Haze Rule. CSAPR’s 

variability could allow a power plant to exercise options that would lead to little or no emission 

reductions at its facility. For example, a source in Georgia might purchase emission credits from 

a source beyond the airshed of the Class I area the Georgia source impairs. Each Georgia EGU 

will have different impacts on visibility as a result of, among other things, their respective size, 

location and the prevailing winds toward Class I areas. EPA does not know – and cannot know 

under the current rule – which Georgia EGUs will actually reduce emissions under CSAPR, or 

by how much. 

It is however certain that the SO2 and NOx emission reductions potentially achievable through 

CSAPR allocations at the at least 19 BART eligible Georgia EGUs pale in comparison to those 

that would be required through operation and installation of an appropriate BART limit, 

assuming each source were subject to BART. It is also virtually certain that steeper emission 

reductions would make greater strides in attaining reasonable progress goals and therefore calls 

into question EPA’s reliance on CSAPR to exempt BART sources from Regional Haze Rule 

requirements. Thus, without knowing which Georgia EGUs will reduce pollutants by what 

amounts under CSAPR, in which Class I airsheds those reductions will occur, or when they will 

do so, EPA simply cannot demonstrate that CSAPR will result in greater reasonable progress 

than source specific BART.

Commenter: National Parks Conservation Association on behalf of a number of 

organizations

Comment:

EPA has not shown that, with CSAPR, each Georgia BART-eligible EGU will (1) not cause or 

contribute to visibility impairment, (2) demonstrate that visibility would not decline and (3) 

demonstrate that the CSAPR would result in overall visibility improvement at Okefenokee, 

Cohutta, and Wolf Island wilderness areas,, or Class I areas in other states. Consequently, EPA 

could not possibly make the requisite showing to exempt BART-eligible EGUs in Georgia from 

BART requirements. Moreover, the Federal Land Managers at Okefenokee, Cohutta, and Wolf 

Island wilderness areas, and other Class I areas have not expressly concurred with EPA’s 

proposed BART exemption for Georgia EGUs. To the contrary the only FLM responses to the 

national rulemaking have been critiques about the program’s shortcomings including its inability 

to protect Class I areas against pollution hotspots. As a result, there is no statutory authority for 

EPA to exempt BART-eligible EGUs in Georgia from BART by relying on CSAPR. 

EPA purports only to show that CSAPR is better than BART nationwide. Neither EPA nor 

Georgia has attempted to demonstrate that CSAPR is better than BART for Georgia. The 

existing analyses demonstrate that CSAPR does not provide greater emission reductions at 

BART eligible EGUs in Georgia that likely cause or contribute to visibility impairment, and 

therefore will not achieve greater than reasonable progress at implicated Class I areas.

Examples in comment letter for specific sources

Commenter: Kristen A. Henry, Sierra Club

Comment: 

Indiana Illegally Failed to Complete a BART Determination For Each Source Subject to BART 

in the State.
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Even if we assume for the sake of argument that alternatives to BART are not permissible under 

the CAA, Indiana nor EPA has not met the regulatory requirements necessary to approve such 

alternatives. First, Indiana or EPA was required, but failed, to make a BART determination for 

each source subject to BART in the state. Pursuant to 40 CFR § 51.308(e)(2), for all alternatives 

to BART, the agency “must submit an implementation plan containing the following plan 

elements and include documentation for all required analyses: ...(C) An analysis of the best 

continuous emission control technology available and associated emissions reductions 

achievable for each source within the State subject to BART and covered by the alternative 

program. . . . [If] the emissions trading program or other alternative measure has been designed 

to meet a requirement other than BART. . . the State may determine the best system of 

continuous emission control technology and associated emission reductions for similar types of 

sources within a source category based on both source-specific and category-wide information, 

as appropriate.” (emphasis added).

EPA’s proposed Regional Haze FIP fails to comply with those regulatory requirements. Rather 

than make a BART determination for each individual source subject to BART that would be 

covered by Indiana’s proposed alternative to BART program (specifically, CSAPR), EPA simply 

compared projected emissions reduction from CSAPR to presumptive BART emissions. 76 Fed. 

Reg. 82219, 82225. In doing so, EPA entirely ignored the regulatory mandate that it determine 

BART “...based on both source-specific and category wide information....” 40 C.F.R. §

51.308(e)(2)(C). As EPA made clear in its BART Guidelines, presumptive BART levels are not 

source-specific; rather, they merely provide a general baseline for BART that States may –

indeed, must – deviate from if a source-specific analysis so indicates. See 40 C.F.R. Part 51, 

Appendix Y; BART Guidelines at 39171 (presumptive BART limits only apply if no 

determination made that “an alternative control level is justified based on a careful consideration 

of the statutory factors” for a given source). Because Indiana and EPA both entirely failed to use 

source-specific information or undertake a comprehensive five factor analysis to determine 

BART, EPA may not approve the proposed partial Regional Haze FIP.

Commenter: Earthjustice/Texas

Comment:

EPA’s “better than BART” conclusion is also unsupportable in Texas because CSAPR will not 

achieve greater reasonable progress than BART. As noted above, under the RHR, EPA must 

demonstrate that CSAPR “will achieve greater reasonable progress than would have resulted

from the installation and operation of BART at all sources subject to BART in the State and 

covered by the alternative program.” 40 C.F.R. § 51.308(e)(2)(i) (emphasis added). As

Earthjustice’s accompanying comment letter explains, EPA must determine whether CSAPR is

better than BART on a state-by-state and source-by-source basis. EPA has failed to analyze, let

alone demonstrate, whether CSAPR is better than BART for the BART-eligible EGUs in Texas.

Further, as Earthjustice’s accompanying comment letter also demonstrates, had EPA undertaken 

the required source-by-source, state-by-state analysis, EPA could not reach a credible conclusion 

that CSAPR is better than BART in the 28 CSAPR states. EPA’s partial FIP for Texas has two 

additional problems: the available evidence demonstrates that CSAPR will achieve less

reasonable progress than BART because it will allow for greater sulfate emissions statewide and 

significantly less SO2 and NOx emission reductions at BART-eligible EGUs in Texas.
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Sulfate Emissions in Texas Would Be At Least 91% Greater Under CSAPR than BART

As discussed above, EPA and the National Park Service have determined that sulfate emissions 

are the primary cause of regional haze at Big Bend. See supra at 4–5. Moreover, the State of 

Texas has determined that SO2 emissions are the “predominant” contributor to visibility

impairment from Texas EGUs. Id.

According to EPA data, SO2 emissions in Texas would be 91% greater under CSAPR than 

BART. Under EPA’s “Transport Rule + BART-elsewhere” scenario, 2014 annual SO2 emissions 

in Texas would be 266,600 tons. TSD at 10, Table 2-4. Under the “Nationwide BART” scenario, 

however, 2014 annual SO2 emissions in Texas would be 139,300 tons. Id. This represents a 91% 

increase in SO2 emissions under CSAPR relative to BART. Moreover, this 91% increase in SO2 

emissions under CSAPR does not account for the revisions to Texas’s SO2 budget, which allows 

Texas EGUs to emit significantly greater SO2 emissions than provided in the initial version of 

CSAPR. See supra at 14–15. CSAPR will thus result in an even greater increase in SO2 

emissions relative to BART than the 91% increase detailed in the TSD. Interagency staff 

reviewing EPA’s “better than BART” determination for CSAPR recognized this problem. The 

interagency staff “expressed concern” that EPA’s proposed rule creates subregions, such as in 

Texas, where “emissions reductions under CSAPR could be significantly less than under 

BART.” Summary of Interagency Working Comments on Draft Language under EO 12866 

Interagency Review, at 8 (Exh. 11). Further, these reviewers recognized that BART controls for 

SO2 are “essential component[s]” to reducing visibility impairment at Class I areas. Id. at 9.

EPA’s proposed rule, however, would ignore those findings and exempt BART-eligible EGUs in 

Texas from installing and operating these critical BART controls. As a result, CSAPR will result 

in greater SO2 emissions in Texas than would appropriate BART determinations.

BART Would Require Significantly Greater SO2 and NOx Emission Reductions from Texas’s 

BART-Eligible EGUs than CSAPR

CSAPR also does not make greater reasonable progress than BART in Texas because

CSAPR will not require the level of emissions reductions from BART-eligible EGUs in Texas

than BART would. As discussed above, more than two-thirds of Texas’s BART-eligible EGUs

do not employ any SO2 controls. See Table 1. CSAPR requires these EGUs to reduce their

annual SO2 emissions to varying degrees—ranging from a 6% reduction at Harrington Unit 2 and

a 15% reduction at Harrington Unit 1 relative to 2010 emissions, up to 73% reductions at Big

Brown Units 1 and 2. Compare Table 2 & Exh. 9 (revised CSAPR allocations), with Exh. 4

(2010 emissions). However, BART limits at these EGUs would require far greater reductions, as

BART for SO2 achieves 95–99% SO2 removal. See 76 Fed. Reg. at 81742; 76 Fed. Reg. at 

64203.

Similarly, the majority of the BART-eligible EGUs in Texas do not employ SCR, which is 

commonly BART for NOx controls. See Table 1. In 2010, these EGUs emitted NOx at average 

rates varying from 0.10 lb/MMBtu (Sam Seymour Unit 1) to 0.28 lb/MMBtu (Harrington Unit 

1). Exh. 4. BART for NOx, however, is often SCR achieving emissions rates as low as 0.04 

lb/MMBtu. See 76 Fed. Reg. at 64203; 76 Fed. Reg. at 52388. CSAPR requires marginal 

reductions in NOx emissions at Texas’s BART-eligible EGUs, ranging from a 5% reduction 

relative to 2010 emissions at Harrington Unit 2 to a 47% reduction at Harrington Unit 1. 
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Compare Table 2 & Exh. 9 (revised CSAPR allocations), with Exh. 4 (2010 emissions). The

NOx reductions required by CSAPR will not achieve the BART rate of 0.04 lb/MMBtu.

Moreover, the BART-eligible EGUs in Texas that have installed SCR (Sandow Unit 4 and WA

Parish Units 5–7) will be allowed to increase their NOx emissions under CSAPR. Compare

Table 2 & Exh. 9 (revised CSAPR allocations), with Exh. 4 (2010 emissions). Consequently,

they will emit NOx at a rate above the BART limit of 0.04 lb/MMBtu. Given this evidence, 

CSAPR plainly will not make greater reasonable progress than BART, as required by the RHR 

for a viable BART-alternative. See 40 C.F.R. § 51.308(e)(2). Accordingly, EPA cannot issue a 

partial FIP for Texas relying on CSAPR in place of BART controls for Texas’s BART-eligible 

EGUs.

Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment:

Case Specific BART Determinations for SO2 emissions from EGUs in Alabama, North Carolina, 

and South Carolina Would Almost Certainly Ensure Greater Progress than would be achieved by 

CSAPR. 

In many of the states for which EPA has proposed to issue a limited disapproval of the regional 

haze SIP and replace the SIP with a partial regional haze FIP, substituting CSAPR for BART 

does not actually result in greater reasonable progress towards these states visibility goals. 

In making this determination, as a first level of analysis, Sierra Club looked at BART-eligible 

sources in Alabama, North Carolina, and South Carolina that have not installed scrubbers to 

determine whether installation of BART scrubbers on those units would achieve greater 

emissions reductions than CSAPR. As previously discussed, in recent case-specific BART 

determinations EPA has determined that installing scrubbers can result in a 99% reduction of 

emissions or, alternatively, in an emissions limit of 0.06 lb/MMBtu SO2. In Exhibits 1 and 2 to 

this comment, expert Ranajit Sahu has examined what effects a benchmark limit of 0.06 

lb/MMBtu SO2 would have on emissions from BART-eligible EGUs in Alabama, North 

Carolina, and South Carolina, as well as in Mississippi. His findings show significantly greater 

progress at a number of these EGUs through application of a 0.06 lb/MMBtu emission limit as 

opposed to CSAPR. See Ranajit Sahu’s report and spreadsheet, attached hereto as Exhibits 1 and 

2, respectively. Similarly, in our comments below, we have presented, as an example of the 

potential emissions reductions that could be achieved by installing BART scrubbers on EGUs 

that result in a reduction of 99% SO2 emissions, a comparison of those potential emissions 

reductions with CSAPR.

As our findings demonstrate, in Alabama, North Carolina, and South Carolina BART (i.e. Wet 

Flue Gas Desulfurization Systems, a.k.a. scrubbers) could provide significant emissions 

reductions over CSAPR. The discussion below is not intended to capture every instance where 

BART is needed over CSAPR to ensure reasonable progress. Instead, by looking at units that do 

not currently have SO2 controls yet are located within 300 km of Class I areas, the analysis 

targets the most egregious cases. 

Commenter: Earthjustice on behalf of numerous organizations

Comment:
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The Proposed Partial FIPs Do Not Make Reasonable Progress 

In many of these states for which EPA has proposed to issue a limited disapproval of the regional 

haze SIP and replace the SIP with a partial regional haze FIP, substituting CSAPR for BART 

does not promise to result in greater reasonable progress. As the discussion below demonstrates, 

in Alabama, Georgia, Indiana, Michigan, Missouri, North Carolina, Ohio, Pennsylvania, South 

Carolina, and Texas, BART will likely provide significant emissions reductions over CSAPR at 

the BART-eligible sources neighboring Class I Areas. These emissions reductions are very likely 

needed to ensure that each state either meets its own reasonable progress goals or does not 

preclude achievement of reasonable progress in downwind states. 

The discussion below is not intended to capture every instance where BART is needed in 

addition to CSAPR to ensure reasonable progress. We looked exclusively at units that: (1) do not 

currently have SO2 or NOx controls; and (2) are located within 300 km of Class I areas, in an 

effort to target the most obviously problematic implications of exempting sources from BART 

requirements in the proposed FIP states. (We expect similar concerns to be present in all states 

across the CSAPR regions). Based on these examples alone, however, EPA cannot finalize these 

reasonable haze FIPs without undertaking state-specific demonstrations that CSPAR somehow 

achieves greater reasonable progress than BART.

EPA Response:

[placeholder]

IX. Comments on the Relationship Between CSAPR, BART, and Other 

Requirements of Regional Haze SIPs

Commenter: Earthjustice on behalf of a number of organizations

Comment:

EPA has not evaluated or determined each state‘s reasonable progress goals, and thus cannot 

reasonably conclude that CSAPR achieves greater reasonable progress than BART. 40 C.F.R. § 

51.308(d), (e)(3). 

EPA Cannot Conclude That CSAPR Achieves Greater Reasonable Progress than BART without 

Reference to Each State’s Reasonable Progress Goals

EPA’s proposed better-than-BART finding is improper because it looks at BART in isolation, 

without reference to or consideration of the reasonable progress goals that BART and all of the 

other measures incorporated into regional haze plans are intended to achieve. EPA‘s proposal 

states that the Agency will act on reasonable progress goals (and other regional haze 

requirements) “for each state in an individual notice at or after the time of the final rule for this 

action.” 76 Fed. Reg. 82219, 82221 (Dec. 30, 2011). Further, EPA will not disapprove any 2018 

reasonable progress targets. Without defining or even referencing those goals, EPA cannot 

reasonably conclude that CSAPR achieves reasonable progress at all, much less greater 

reasonable progress than BART under 40 C.F.R. § 51.308(e)(3). 
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Achieving reasonable progress is the fundamental objective that must be met by regional haze 

SIPs or FIPs. See 40 C.F.R. § 51.308(d)(1) (listing the reasonable progress goals as a core 

requirement of the regional haze plan); see also UARG, 471 F.3d at 1340 (explaining that the 

regulatory scheme places reasonable progress at its center, and state regional haze plans must 

contain sufficient measures to achieve reasonable progress). Thus, each statewide regional haze 

plan must contain regional progress goals, which are set based on the uniform rate of progress to 

attain natural visibility conditions by 2064, and each plan must prescribe the immediate and long 

term strategy measures, including BART, that are necessary to meet those progress goals. See 40 

C.F.R. §§ 51.308(d)(1) & (3); id. § 51.308(e). Because BART is critical to the state‘s ability to 

reach its reasonable progress goals, EPA cannot exempt sources from BART without considering 

how the exemption will affect the overarching reasonable progress mandate. See CAA 

§169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A). Concluding that CSAPR achieves greater 

reasonable progress toward achieving natural visibility conditions than BART without regard to 

defined reasonable progress goals is arbitrary and contrary to law under the Clean Air Act and 

implementing federal regulations.

Failure to consider the impact of the proposed BART exemption is most obviously improper in 

instances where states expressly relied on emissions reductions consistent with presumptive 

BART to meet reasonable progress goals. As the U.S. Forest Service (USFS) has made clear in 

comments to EPA on the current proposal:

[W]hile EPA states “we believe that the reasonable progress goals in the SIPs for the states 

addressed in this proposed action do not need to be revised by the states at this time or replaced 

by goals established by us via FIPs,” the reality is that the allowance for creation of visibility 

“hot spots” through the application of the Transport Rule as a BART alternative creates 

inconsistencies where the established reasonable progress goals relied upon presumptive BART 

levels. We do not agree that progress goals would not need to be revised under this rulemaking.

[FN 19]

... Similarly, because BART can produce greater visibility improvement than CSAPR at one or 

more Class I area (see Section VII.A, infra), the proposed rule violates 40 C.F.R. § 

51.308(d)(1)(vi), which establishes that a state may not adopt a progress goal that represents less 

visibility improvement than would be expected from complying with requirements under the 

Clean Air Act, including BART. See also USFS Comments at 14-15 (explaining that EPA cannot 

adopt the proposed rule because it would sanction the adoption of reasonable progress goals that 

provide less visibility improvement than BART in contravention of 40 C.F.R. § 

51.308(d)(1)(vi)). 

[FN 19] United States Forest Service Comments on Better than BART NPRM (USFS Comments) at 1 (Nov. 28, 

2011). The USFS Comments on EPA‘s Draft Notice of Proposed Rule Making were obtained on February 28, 2012 

in response to a Freedom of Information Act request. These comments are incorporated by reference herein and 

attached as Attachment 1.

Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment:

EPA Must Evaluate Regional Haze Plans in Whole, Not In Part 
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EPA’s proposed limited partial FIPs for Alabama, Mississippi, North Carolina, and South 

Carolina violate the CAA and RHR since EPA has failed to evaluate what effect exempting 

EGUs in these states from BART would have on the remaining components of their regional 

haze SIPs. See 40 CFR § 51.308(d)(e). Regional haze SIPs/FIPs must contain the entirety of a 

state’s comprehensive plan for attaining natural visibility conditions by 2064, including the 

state’s reasonable progress goals, its long term strategy to meet those goals, and its BART 

determinations. See CAA § 169A(b)(2)(A); 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308(d), 

(e). Because these components are interrelated, EPA cannot approach regional haze as it has 

done here, in a piecemeal fashion. 

Indeed, all of required components of a Regional Haze SIP/FIP very much affect one another, 

are part of a “single administrative action,” and must be evaluated together. [FN 13] EPA cannot 

evaluate individual components of a regional haze plan in isolation without reference to whether 

reasonable progress will be achieved collectively by the sum of the parts of each plan.[FN 14] As 

a consequence, EPA cannot exempt sources from the RHR’s BART requirements without full 

consideration of how that exemption would affect the overarching reasonable progress mandate. 

See 42 U.S.C. § 7491(b)(2)(A). 

Therefore, EPA’s finding that CSAPR is “better than BART”, without an examination of how 

the CASPR-instead-of-BART substitution would impact the remaining portion of these states’ 

regional haze SIPs is unlawful. EPA must wait to make a BART-alternative determination at the 

same time EPA reviews and approves these states’ revisions to their regional haze SIPs that 

address regional haze for the first implementation period. [FN 15] See Utility Air Regulatory 

Group v. EPA, 471 F.3D 1333, 1340 (D.C. Cir. 2006) (explaining that even if EPA has 

determined that a program is “better than BART”, if at the state level that same program is not 

likely to achieve the State’s own reasonable progress goals, the state must take other measures 

that will achieve those goals at each Class I area.) As a result, EPA’s proposed limited FIPs for 

Alabama, Mississippi, North Carolina, and South Carolina are improper. 

EPA cannot issue legally-defensible partial regional haze FIPs for Alabama, Mississippi, North 

Carolina, or South Carolina that rely on CSAPR to prematurely exempt all power plants from the 

RHR’s BART requirements. A strong regional haze plan that complies with the visibility 

protection regulations—including BART controls at all BART-eligible EGUs—is critically 

important to protect public health and improve visibility at Class I areas in these and nearby 

states. In addition to the immeasurable health benefits that accompany a reduction in those 

pollutants which contribute to regional haze, a strong regional haze plan will benefit tourism and 

local economies by ensuring that people from around the world will continue to travel to these 

states to explore and enjoy their natural treasures. 

[FN 13] Regional haze plans are singular, comprehensive documents that must achieve reasonable progress through 

BART, a long term strategy, and other controls and, therefore, they cannot be segmented so that only portions of the 

plans are approved at a particular time. See 40 C.F.R. § 51.308(b) & (f). As a result, EPA cannot issue a partial 

regional haze FIP that segments and divorces the analysis of the complementary BART and reasonable progress 

requirements. Indeed, courts have forbid EPA from evaluating a SIP revision in a vacuum where a larger analysis is 

required to determine whether the revision complies with the Clean Air Act. See Ass’n of Irritated Residents v. EPA, 

--- F.3d ----, Nos. 09-71383, 09-71404, 2012 WL 251912, at *4 (9th Cir. Jan. 27, 2012) (citing Hall, 273 F.3d 

at1159 (“The EPA must be able to determine that, with the revisions in place, the whole ‘plan as . . . revised’ can 

meet the Act’s attainment requirements.”)). In addition, EPA’s own guidance rejects the idea that it is permissible to 
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issue partial or piecemeal approval of SIPs that are meant to be singular, comprehensive documents. See 

Memorandum from John Calcagni, Director, Air Quality Mgmt. Div., OAQPS, to Air Div. Directors, EPA Regional 

Offices, at 2 (1992) (stating that “[f]or example, EPA cannot approve part of a submittal that specifies control 

measures and disapprove the part that specifies the test methods associated with those control measures”), available 

at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf. According to this guidance, EPA can issue partial 

approvals only in certain situations. For example, where a state submits “groups of rules” together, t]he EPA can 

approve some of the rules and disapprove the rest as long as the rules that are disapproved do not affect those that 

are approved.” Id. Where the rules or other proposals are not separable, however, EPA may not segment the 

analysis. Id. This is consistent with Section 110(k) of the Clean Air Act, which allows for partial approval and 

partial disapproval of a SIP revision, but does not suggest that a portion of a single revision can simply be ignored 

when issuing such partial approvals or disapprovals. 42 U.S.C. § 7410(k)(3) (“If a portion of the plan revision meets 

all the applicable requirements of this chapter, the Administrator may approve the plan revision in part and 

disapprove the plan revision in part.”). 

[FN 14] The overarching mandate of the Act and the RHR is a state-wide regional haze plan that achieves 

reasonable progress toward the 2064 natural visibility goal. 40. C.F.R. § 51.308. To meet the 2064 goal, a regional 

haze plan involves two intertwined components: BART controls and a long-term strategy to achieve reasonable 

progress toward that goal. See 42 U.S.C. § 7491(b)(2) (“each applicable implementation plan” must “contain such 

emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress.”); 

40 C.F.R. § 51.308(d)(1) & (3). 

[FN 15] The proposed promulgation deadline for these four states was February 15, 2012. See Consent Decree, Nat’l 

Parks Conservation Ass’n v. Jackson, No. 1: 11-cv-01548 (ABJ) (D.D.C. Nov. 9, 2011). These proposed rules were 

published in the Federal Register, today, February 28, 2012. See Proposed Rule, Approval and Promulgation of Air 

Quality Implementation Plans; State of North Carolina; Regional Haze State Implementation Plan, 77 Fed. Reg. 

11858 (February 28, 2012); Proposed Rule, Approval and Promulgation of Air Quality Implementation Plans; State 

of Mississippi; Regional Haze State Implementation Plan, 77 Fed. Reg. 11879 (February 28, 2012); Proposed Rule, 

Approval and Promulgation of Air Quality Implementation Plans; South Carolina; Regional Haze State 

Implementation Plan, 77 Fed. Reg. 11894 (February 28, 2012); Proposed Rule, Approval and Promulgation of Air 

Quality Implementation Plans; State of Alabama; Regional Haze State Implementation Plan, 77 Fed. Reg. 11937 

(February 28, 2012). 

Commenter: National Parks Conservation Association on behalf of numerous 

organizations

Comment:

EPA Cannot Issue a Partial Regional Haze FIP without Evaluating Georgia’s Proposed SIP as a 

Whole

EPA’s proposed partial FIP violates the Clean Air Act and RHR because EPA failed to evaluate, 

let alone determine, whether exempting Georgia EGUs from BART complies with the Act’s 

reasonable progress mandate. The D.C. Circuit has explained that the overarching mandate of the 

Clean Air Act and the RHR is a state-wide regional haze plan that achieves reasonable progress 

toward the 2064 natural visibility goal. Util. Air Regulatory Group, 471 F.3d at 1340; Ctr. for 

Energy and Econ. Dev. v. EPA, 398 F.3d 653, 660 (D.C. Cir. 2005). To meet the 2064 goal, a 

regional haze plan must include two critical components: BART limits and a long-term strategy to 

achieve reasonable progress toward that goal. 42 U.S.C. § 7491(b)(2)(A) & (b)(2)(B); 40 C.F.R. § 

51.308(d)(1), (d)(3), (e); see also 42 U.S.C. § 7491(b)(2).

A regional haze plan’s BART requirements and long-term strategy cannot be evaluated in 

isolation. In order to set the reasonable progress goals in the long-term strategy, EPA or the state 

must, among other things, determine a “uniform rate of progress” required to meet that goal. 40 

C.F.R. § 51.308(d)(1)(B). As part of that calculation, EPA or the state must determine “the 

uniform rate of improvement in visibility and the emission reduction measures needed to achieve 

it for the period covered by the implementation plan.” Id. Because BART is a critical component 
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to achieving reasonable progress, neither the states nor EPA can exempt sources from the RHR’s 

BART requirements without any consideration of how doing so will affect the overarching 

reasonable progress mandate. 

Despite these requirements, the proposed partial FIP for Georgia contains exactly three 

sentences, none of which analyzes a long-term strategy or reasonable progress goals, nor how the 

exemption of all EGUs would affect such a strategy or goals if they existed. See 76 Fed. Reg. at 

82232. Absent a uniform rate of progress calculation, long-term strategy, or reasonable progress 

goals, EPA has no rational basis to determine that CSAPR emissions controls are sufficient to 

comply with the RHR reasonable progress mandate. 

All required components of a Regional Haze SIP or FIP affect each other, are part of a “single 

administrative action,” and must be evaluated together to determine if the partial FIP complies 

with the Clean Air Act and RHR. EPA’s failure to consider together the proposed alternative 

BART program, the long-term strategy and reasonable progress goals in Georgia’s SIP violates 

the Clean Air Act and RHR and is arbitrary and capricious. 

EPA’s premature decision to exempt Georgia EGUs from NOx BART will put the burden of 

reaching reasonable progress goals on non-BART eligible EGUs and other non-EGU hazeemitting sources in the state. For most BART eligible Georgia EGUs, adequate BART controls 

for SO2 and NOx would compel the installation and operation of scrubbers and SCR (assuming 

they were not already installed) – proven and widely-available technologies that significantly 

reduce SO2 and NOx emissions. However, because EPA is exempting BART controls at subject 

sources, non-BART EGUs and other non-EGU sources will need to more substantially reduce 

other haze causing emissions to help achieve reasonable progress goals. As a result, instead of 

installing and operating SO2 and NOx BART controls at a select number of BART eligible 

EGUs in Georgia, the proposed rule would force EPA to secure a greater share of the necessary 

visibility improvements from additional emission controls on non-BART EGUs and other source 

categories to make up for lost emission reductions at BART-eligible EGUs. 

For the reasons stated above and the reasons provided in the national comments, CSPAR does 

not satisfy the requirements of the Regional Haze Rule, and cannot be approved as a substitute 

for BART as proposed. Instead, EPA must promulgate a regional haze plan that contains all 

aspects of the state’s regional haze plan including source-specific SO2 and NOx BART limits for 

the Georgia EGUs.

Commenter: National Parks Conservation Association on behalf of numerous 

organizations

Comment:

BART is Required to Meet Reasonable Progress Goals for Class I Areas in Georgia 

The CAA requires Georgia to submit a state implementation plan that contains “such emission 

limits, schedules of compliance and other measures as may be necessary to make reasonable 

progress toward meeting the national goal” of returning Class I areas to natural visibility 

conditions. 42 U.S.C. § 7491(b)(2). Furthermore, EPA has interpreted the statute to mean that 

each state must establish a reasonable progress goal for each Class I area within its borders, 40 

C.F.R. § 51.308(d)(1), and then, in its long-term strategy, adopt enforceable emissions 

limitations and other measures “as necessary to achieve the reasonable progress goals.” Id. § 
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51.308(d)(3). A State must require that “all necessary emissions reductions take place during the 

period of the first long-term strategy for regional haze.” 40 C.F.R. § 51.308(e) (2)(iii). The end 

of the first long-term strategy period for regional haze is 2018. For Class I areas outside a state’s 

border, the state has an obligation to ensure it adopts controls necessary to ensure its share of the 

pollution reductions that are required in order to meet the reasonable progress goals set for the 

subject Class I area. Id. 

Allowing sources in Georgia to escape SO2 BART controls is likely to preclude Georgia from 

achieving its reasonable progress goals. Georgia contains eight units that do not have SO2 

controls that are also located within 300 km of two of its three Class I areas, Cohutta Wilderness 

Area and Wolf Island Wilderness Area. Applying proper BART emission limits at these units 

would reduce SO2 emissions by approximately 95% over CSAPR allocations for these units, as 

the table below demonstrates. EPA cannot approve a FIP for Georgia without analyzing whether 

Georgia will still be on track to meet its reasonable progress goals even if it opts out of BART 

controls that reduce emissions by 95% over CSAPR. Given that CSAPR allows for 31,268 tons 

of SO2 emissions per year at uncontrolled plants, whereas BART would limit SO2 emissions to 

less than 1,500 tons per year, Georgia will not likely be able to make reasonable progress without 

BART.

Commenter provides examples for specific EGUs in comment letter: 

Commenter: National Parks Conservation Association and Earthjustice

Comment:

EPA’s proposed partial FIP for Florida is necessarily restricted to NOx BART limits at BART 

eligible EGUs because power plants in the state are only covered under CSAPR for ozone 

season. Therefore, BART eligible power plants in Florida are not exempt from BART for SO2 

under this proposed rulemaking. Accordingly, Florida and EPA must issue BART determinations 

for SO2 at each source subject to BART, including those EGUs subject to CSAPR. Because of 

this bifurcated treatment of the largest sources of haze causing pollution in the state, the 

proposed partial FIP violates the Clean Air Act and RHR because EPA failed to evaluate, let 

alone determine, whether exempting Florida EGUs from BART complies with the Act’s 

reasonable progress mandate.

EPA has failed to account for how, in the absence of relied upon SO2 reductions anticipated 

under CAIR, it will maintain its uniform rate of progress. Moreover, even if somehow EPA 

could justify the conclusion that Florida will remain on the glidepath, the national rule expressly 

states that EPA is taking no action on those goals, effectively making it impossible to determine 

whether CSAPR for an ozone season only state could achieve greater reasonable progress than 

an absent or unconfirmed goal. See 76 Fed. Reg. at 82221. Absent a uniform rate of progress 

calculation, long-term strategy, or reasonable progress goals, EPA has no rational basis to 

determine that CSAPR emissions controls are sufficient to comply with the RHR reasonable 

progress mandate. 

All required components of a Regional Haze SIP or FIP affect each other, are part of a “single 

administrative action,” and must be evaluated together to determine if the partial FIP complies 

with the Clean Air Act and RHR. EPA’s failure to consider together the proposed alternative 
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BART program, BART for SO2, the long-term strategy and reasonable progress goals in 

Florida’s SIP violates the Clean Air Act and RHR and is arbitrary and capricious. 

EPA’s premature decision to exempt Florida EGUs from NOx BART will put the burden of 

reaching reasonable progress goals on non-BART eligible EGUs and other non-EGU hazeemitting sources in the state. For a number of BART eligible Florida EGUs where it is not 

already installed, adequate BART controls for NOx would likely compel the installation and 

operation of SCR – proven and widely-available technologies that significantly reduce NOx 

emissions. However, because EPA is exempting BART controls at subject sources, non-BART 

EGUs and other non-EGU sources will need to more substantially reduce other haze causing 

emissions to help achieve reasonable progress goals. As a result, instead of installing and 

operating NOx BART controls at a select number of BART eligible EGUs in Florida, the 

proposed rule would force EPA to secure a greater share of the necessary visibility 

improvements from additional SO2 and other emission controls on non-BART EGUs and other 

source categories to make up for lost NOx emissions. 

Furthermore, this burden extends to neighboring states like Georgia, which described in its 2010 

SIP waiting for expected SO2 reductions from Florida sources. Florida sources have a larger 

impact than Georgia sources at one of the state’s Class I areas (Okefenokee) and a significant 

impact at another (Wolf Island). Georgia sources also bear the weight of securing the necessary 

visibility improvements absent emission reductions from Florida. 

For the reasons stated above and the reasons provided in the national comments, CSPAR does 

not satisfy the requirements of the Regional Haze Rule, and cannot be approved as a substitute 

for BART as proposed. Instead, EPA must promulgate a regional haze plan that contains all 

aspects of the state’s regional haze plan including source-specific NOx BART limits for the 

Florida EGUs.

Commenter: Earthjustice/Texas

Comment:

EPA Must Evaluate Regional Haze Plans in Whole, Not In Part

EPA’s proposed partial FIP for Texas also violates the Clean Air Act and RHR because a 

regional haze plan’s BART requirements and long-term strategy to achieve reasonable progress 

cannot be evaluated in isolation. In proposing a partial FIP for Texas, EPA failed to evaluate, let 

alone determine, whether exempting BART-eligible EGUs in Texas from BART complies with 

the Act’s reasonable progress mandate.

Under the Clean Air Act and the RHR, reasonable progress is the cornerstone and overarching 

mandate of each state-wide regional haze plan. Util. Air Regulatory Grp., 471 F.3d at 1340 

(explaining that the regulatory scheme places reasonable progress at its center, and state regional 

haze plans must contain sufficient measures to achieve reasonable progress); Ctr. For Energy & 

Econ. Dev. v. EPA, 398 F.3d 653, 660 (D.C. Cir. 2005). Each statewide regional haze plan must 

contain reasonable progress goals. These goals are based on a determination of the “uniform rate 

of progress” to attain natural visibility conditions by 2064, and a determination of

“the uniform rate of improvement in visibility and the emission reduction measures needed to 

achieve it for the period covered by the implementation plan.” 40 CFR 51.308(d)(1)(B)(emphasis 

added). Thus, a regional haze plan must include two critical components: a long-term strategy to 
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achieve reasonable progress and BART limits. 42 U.S.C. § 7491(b)(2)(A) & (b)(2)(B); 40 C.F.R. 

§ 51.308(d)(1), (d)(3), (e); see also 42 U.S.C. § 7491(b)(2) (“each applicable implementation 

plan” must “contain such emission limits, schedules of compliance and other measures as may be 

necessary to make reasonable progress”). Because BART is a critical component to achieving 

reasonable progress, neither the states nor EPA are authorized to exempt sources from the RHR’s 

BART requirements without considering how doing so will affect the overarching reasonable 

progress mandate. See 42 U.S.C. § 491(b)(2)(A). 

Concluding that CSAPR achieves greater reasonable progress toward achieving natural visibility 

conditions than BART in a regional haze FIP without regard to defined reasonable progress goals 

is arbitrary and contrary to law under the Clean Air Act and the RHR. [FN 11] Despite these 

requirements, the proposed partial FIP for Texas contains exactly three sentences, none of which 

analyzes the long-term strategy or reasonable progress goals, nor how the exemption of all EGUs 

would affect such a strategy or goals if they existed. See 76 Fed. Reg. at 82234. [FN 12] 

Moreover, even if the plan provided for reasonable progress goals, the national rule expressly 

states that EPA is taking no action on those goals, effectively making it impossible to determine 

whether an alternative program could achieve greater reasonable progress than a absent or 

unconfirmed goal. See id. at 82221. Absent a uniform rate of progress calculation, long-term 

strategy, or reasonable progress goals, EPA has no rational basis to determine that CSAPR 

emissions controls are sufficient to comply with the RHR reasonable progress mandate. EPA’s 

failure to consider the proposed BART-alternative program along with the long-term strategy 

and reasonable progress goals in Texas’s SIP violates the Clean Air Act and RHR and is 

arbitrary and capricious. See, e.g., Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut.Auto. 

Ins. Co., 463 U.S. 29, 43 (1983).

[FN 11] EPA’s proposal for a Texas partial FIP proposal is also contrary to EPA’s guidance, which rejects the idea 

that it is permissible to issue partial or piecemeal approval of SIPs that are singular, comprehensive documents. See 

Memorandum from John Calcagni, Director, Air Quality Mgmt. Div., OAQPS, to Air Div. Directors, EPA Regional 

Offices, at 2 (1992) (Exh. 7). According to this guidance, EPA can issue partial approvals only in certain situations. 

For example, where a state submits “groups of rules” together, “EPA can approve some of the rules and disapprove 

the rest as long as the rules that are disapproved do not affect those that are approved.” Id. Where the rules or other 

proposals are not separable, however, EPA may not vacuum where a larger analysis is required to determine whether 

the revision complies with the Clean Air Act. See Ass’n of Irritated Residents v. EPA, --- F.3d ----, Nos. 09-71383, 

09-71404, 2012 WL 251912, at *4 (9th Cir. Jan. 27, 2012) (“The EPA must be able to determine that, with the 

revisions in place, the whole ‘plan as . . . revised’ can meet the Act’s attainment requirements.” (quoting Hall v. 

EPA, 273 F.3d 1146,1159 (9th Cir. 2001)). 

[FN 12] As detailed below, Texas’s SIP predicts it will miss this goal by 91 years at Big Bend National Park, and 

that number that is likely too optimistic. See infra at n.13. Accordingly, EPA’s failure to control emissions at the 

EGUs appropriately deemed to be subject to BART in Texas—some of the oldest and largest sources of air pollution 

in the state—will have significant consequences for all other sources, which will bear an additional burden of 

steeper emission reductions to ensure the state meet its reasonable progress obligations.

Commenter: Earthjustice/Texas

Comment:

EPA Cannot Issue a Partial FIP for Texas In Light Of the Texas SIP’s Failure to Achieve 

Reasonable Progress

EPA’s premature determination that no EGUs in Texas will be required to install BART controls 

is particularly problematic in light of the fact that Texas’s regional haze SIP does not come even 

close to achieving reasonable progress toward the 2064 natural visibility goal. Instead, the Texas 
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SIP would not achieve “natural” visibility conditions until 2155 at Big Bend and 2081 at 

Guadalupe Mountains, at the earliest. Texas SIP at 10-1.[FN 13] This unreasonable delay in 

achieving the statutory goal is due to the fact that the Texas SIP exempts every single BARTeligible source in the state from installing controls to improve visibility impairment. Texas did 

not (and could not) demonstrate that it’s no control “status quo” approach makes reasonable 

progress, as required by the RHR. 40 C.F.R. § 51.308(d)(1)(ii). And, Texas provided no rational 

basis for its conclusion that the 2064 natural visibility goal is not reasonable at Big Bend and 

Guadalupe Mountains. See id.

Because the Texas SIP fails to achieve reasonable progress toward the 2064 natural visibility 

goal, EPA must issue a regional haze FIP for Texas that does so. Texas’s regional haze plan must 

ensure that a 2.3 dv improvement is achieved by 2018 at Big Bend and a 2.4 dv improvement is 

achieved by 2018 at Guadalupe Mountains on the 20% worst days.[FN 14] In contrast, under the 

Texas SIP, which exempted BART-eligible EGUs from BART in reliance on CAIR, visibility by 

2018 would improve by only 0.7 dv at Big Bend and 0.9 dv at Guadalupe Mountains. Texas SIP 

at 10-1, 10-9, Table 10-2. Consequently, an additional 1.6 dv improvement at Big Bend and an 

additional 1.5 dv improvement at Guadalupe Mountains by 2018 on the 20% worst days are 

necessary to achieve reasonable progress. EPA’s premature decision to exempt BART-eligible 

EGUs in Texas from BART will put the burden of reaching those goals on non-EGU sources. 

This makes little sense because Texas’s BART-eligible EGUs as a group are a significant 

contributor to regional haze at Big Bend, Guadalupe Mountains, and other Class I areas in the 

region. See, e.g., Texas SIP, App. 7-2. Moreover, BART controls at EGUs, such as SCR and 

modern scrubbers, are proven and readily available technologies that significantly reduce 

emissions of visibility-impairing pollutants from a select number of sources. As a result, 

requiring BART at Texas’s BART-eligible EGUs would provide significant visibility benefits at 

Big Bend, Guadalupe Mountains, and other Class I areas, and BART controls would go far 

toward ensuring that reasonable progress is achieved. See infra at 17–18. 

In this proposed rule, however, EPA has predetermined that BART controls will not be required 

at any power plants in Texas, without any analysis of how this will affect achievement of natural 

visibility conditions by 2064. Consequently, instead of utilizing proven and readily-available 

BART controls at a select number of Texas EGUs, the proposed partial FIP for Texas would 

force EPA to secure the necessary visibility improvements from controls on other source 

categories, which will be a larger and more disparate group of sources to control.

[FN 13] The 2155 and 2081 “natural” visibility goals in the Texas regional haze SIP are in fact unrealistically early, 

because they are based on an arbitrary and inflated assessment of the baseline conditions. Texas departed from 

EPA’s default values and methodology for calculating natural visibility conditions at Guadalupe Mountains and Big 

Bend, and employed a methodology the Federal Land Managers criticized as “uncertain” and flawed. See Texas SIP 

at 5-3 to 5-6; SIP App. 5-2 at unnumbered page 3. The result is a less-stringent visibility goal for the overall Texas 

SIP. For example, if Texas had used EPA’s natural visibility values, visibility conditions at Guadalupe Mountains 

would ultimately have to improve from 17.2 dv visibility impairment to 6.8 dv impairment on the 20% worst days. 

But by using an artificially-elevated 12.3 dv “natural” visibility value for the 20% worst days, far less overall 

improvement in visibility is required. See Texas SIP at 5-3 to 5-6, App. 5-2 at Figure 5-2. Because the Texas SIP 

utilized artificially-elevated levels of “natural” visibility conditions, according to EPA’s values, the SIP would not 

achieve true natural visibility at Guadalupe Mountains and Big Bend until approximately 2215 at Big Bend and 

2166 at Guadalupe Mountains.

[FN 14] At Big Bend, baseline conditions on the 20% worst days are 17.3 dv, and the uniform rate of progress to 

achieve EPA’s default natural visibility conditions by 2064 requires an improvement to 15.0 dv by 2018. Texas SIP, 
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App. 5-2 at Figure 5-1. Thus, the regional haze plan for Texas must improve visibility by 2.3 dv by 2018 at Big 

Bend to make reasonable progress. At Guadalupe Mountains, baseline conditions on the 20% worst are 17.2 dv, and 

the uniform rate of progress to achieve EPA’s default natural visibility conditions by 2064 requires an improvement 

to 14.8 dv by 2018. Texas SIP, App. 5-2 at Figure 5-2. Thus, the regional haze plan for Texas must improve 

visibility by 2.4 dv by 2018 at Guadalupe Mountains to make reasonable progress.

Commenter: National Parks Conservation Association and Earthjustice

Comment:

BART is required to meet Reasonable Progress Goals for Class I Areas in Florida 

The CAA requires Florida to submit a state implementation plan that contains “such emission 

limits, schedules of compliance and other measures as may be necessary to make reasonable 

progress toward meeting the national goal” of returning Class I areas to natural visibility 

conditions. 42 U.S.C. § 7491(b)(2). Furthermore, EPA has interpreted the statute to mean that 

each state must establish a reasonable progress goal for each Class I area within its borders, 40 

C.F.R. § 51.308(d)(1), and then, in its long-term strategy, adopt enforceable emissions 

limitations and other measures “as necessary to achieve the reasonable progress goals.” Id. § 

51.308(d)(3). A State must require that “all necessary emissions reductions take place during the 

period of the first long-term strategy for regional haze.” 40 C.F.R. § 51.308(e) (2)(iii). The end 

of the first long-term strategy period for regional haze is 2018. For Class I areas outside a state’s 

border, the state has an obligation to ensure it adopts controls necessary to ensure its share of the 

pollution reductions that are required in order to meet the reasonable progress goals set for the 

subject Class I area. Id. 

Florida’s submittal asserts that, after sufficient model adjustments, it is just barely meeting the 

uniform rate of progress in its three Class I areas where visibility is an important value. 

However, this appears to be untrue on its face – for St. Marks, the 2018 predicted visibility is 

higher than the 2018 uniform rate of progress.12 More importantly, these reasonable progress 

goals reflect a circumstance that is not a reality. For EGUs, the modeling assumes 

implementation of CAIR (or its equivalent), which – unlike CSAPR – regulated both NOx and 

SO2 year-round in Florida. This mismatch between the modeling supporting reasonable progress 

goals and EPA’s proposed determination illustrates why these elements are fundamentally 

impossible to decouple.[FN 13]

Thus, without the previously relied upon SO2 emission reductions or applicability of a year 

round NOx reductions it is impossible to say that Florida will meet the uniform rate of progress 

at its Class I areas. Similarly, neither the state nor EPA has demonstrated that CSAPR will make 

greater reasonable progress at Florida’s Class I areas. In the absence of this demonstration 

CSAPR fails the regulatory test required for an alternative BART program to exempt sources 

from source specific BART limits.

[FN 13] See Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, filed February 28, 2012. 

Commenter: Kristin A. Henry, Sierra Club

Comment:

Since EPA Has Not Evaluated or Determined Reasonable Progress Goals for Indiana, It Cannot 

Reasonably Conclude that CSAPR Achieves Greater Reasonable Progress than BART.

EPA’s proposed better-than-BART finding is improper because it looks at BART in isolation, 

without reference to the long term strategy that BART and all of other measures incorporated 
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into regional haze plans are intended to achieve. Without defining or even referencing those 

goals, EPA cannot reasonably conclude that CSAPR achieves reasonable progress at all, much 

less greater reasonable progress than BART under 40 C.F.R. § 51.308(e)(3). Therefore, EPA 

cannot partially approve a FIP for Indiana that rely on CSAPR as a substitute for BART.

As discussed above, each regional haze SIP or FIP must contain the entirety of the state’s 

comprehensive plan for attaining natural visibility conditions by 2064, based on each state’s 

reasonable progress goals, a long term strategy to meet those goals, and installation and 

operation of BART. See CAA § 169A(b)(2)(A); 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 

51.308(d), (e). Because these components are interrelated, EPA cannot approach regional haze, 

as it did, in a piecemeal fashion. More specifically, because BART is critical to the state’s ability 

to reach its reasonable progress goals, EPA cannot exempt sources from BART without 

considering how the exemption will affect the overarching reasonable progress mandate. See 

CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A). Concluding that CSAPR achieves greater 

reasonable progress toward achieving natural visibility conditions than BART without regard to 

defined reasonable progress goals is arbitrary and contrary to law under the Clean Air Act and 

implementing federal regulations. EPA cannot evaluate individual components of a regional haze 

plan in isolation without reference to whether reasonable progress will be achieved collectively 

by the sum of the parts of each plan. Thus, because EPA has failed to evaluate what effect 

exempting EGUs in Indiana from BART would have on the remaining components of its 

regional haze SIPs, including the state’s reasonable progress goals, EPA’s proposed limited 

partial FIP for Indiana violates the CAA and the Haze Rule. 40 C.F.R. § 51.308(d),(e)(3). 

The D.C. Circuit has explained that the overarching mandate of the Act and the Haze Rule is a 

state-wide regional haze plan that achieves reasonable progress toward the 2064 natural visibility 

goal. Utility Air Regulatory Group v. Envtl. Prot. Agency, 471 F.3d 1333, 1340 (9th Cir. 

2006); Ctr. for Energy and Econ. Dev. v. EPA, 398 F.3d 653, 660 (D.C. Cir. 2005). To meet 

the 2064 goal, a regional haze plan involves two intertwined components: BART controls and a 

long-term strategy to achieve reasonable progress toward that goal. See 42 U.S.C. § 7491(b)(2) 

(“each applicable implementation plan” must “contain such emission limits, schedules of 

compliance and other measures as may be necessary to make reasonable progress.”); 40 C.F.R. § 

51.308(d)(1) & (3). 

Accordingly, neither EPA nor a state can evaluate a regional haze plan’s BART requirements 

and long-term strategy in isolation from one another. In order to set the reasonable progress goals 

and develop a long-term strategy to meet those goals, EPA or the state must, among other things, 

determine a “uniform rate of progress” required to meet the state’s goals. 40 C.F.R. § 

51.308(d)(1)(B). As part of that calculation, EPA or the state must determine “the uniform rate of 

improvement in visibility and the emission reduction measures needed to achieve it for the 

period covered by the implementation plan.” Id. (emphasis added). Because BART is a critical 

component to setting the appropriate limits for achieving reasonable progress, the states or EPA 

cannot exempt sources from the Haze Rule’s BART requirements without any consideration of 

how this will affect the overarching reasonable progress mandate. This is true as evidenced by 

the fact that the D.C. Circuit Court of Appeals has explained that even if EPA has determined 

that a program is “better than BART,” if at the state level that same program is not likely to 

achieve the State’s own reasonable progress goals, the state must take other measures that will 
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achieve those goals at each Class I area. See Utility Air Regulatory Group v. EPA, 471 F.3D 

1333, 1340 (D.C. Cir. 2006). 

Despite these requirements, EPA’s proposed partial FIP for Indiana consists of only two to three 

sentences, neither of which mentions a long-term strategy or reasonable progress goals, nor how 

the exemption of all EGUs would affect such a strategy or goals if they existed. See 76 Fed. Reg. 

at 82232. Absent a uniform rate of progress calculation, long-term strategy, and reasonable 

progress goals for Indiana, EPA has no rational basis to determine that CSAPR emissions 

controls are sufficient to comply with the CAA and Haze Rule’s reasonable progress mandate. 

Moreover, EPA’s regional haze regulations mandate that for a state’s regional haze SIP to 

include an emissions trading program such as CSAPR as the BART alternative towards 

achieving reasonable progress, the SIP must also include certain elements concerning the 

emissions covered by that trading program’s cap. 40 C.F.R. § 51.308(e)(2)(vi). This includes 

“compliance provisions prohibiting a source from emitting a total tonnage of a pollutant that 

exceeds the tonnage value of its allowance holdings, including the methods and procedures for 

determining whether emissions exceed allowance holdings.” 40 C.F.R. § 51.308(e)(2)(vi)(I). 

However, here, EPA’s approval of CSAPR as the BART alternative in Indiana is occurring in the 

vacuum of a limited FIP approval which approves the BART alternative, yet, sets no additional 

conditions on application of that program to BART-eligible sources. Indeed, EPA’s decision that 

CSAPR is a “better than BART” alternative has been made in isolation from the many other 

requirements and conditions of Indiana’s SIP—provisions which must necessarily be considered 

at the time any BART alternative determination is made. Because the BART alternative is 

completely divorced from the overall regional haze implementation process and resulting plan, 

which includes reasonable progress goals and long-term strategies, it is impossible to ensure that 

CSAPR will achieve greater reasonable progress. 

Regional haze SIPs cannot be segmented so that only portions of the plans are approved at a 

particular time. These SIPs are singular, comprehensive documents that must achieve reasonable 

progress through BART, a long term strategy, and other controls. See 40 C.F.R. § 51.308(b) & 

(f). EPA’s own guidance rejects the idea that it is permissible to issue partial or piecemeal 

approval of SIPs that are singular, comprehensive documents. See Memorandum from John 

Calcagni, Director, Air Quality Mgmt. Div., OAQPS, to Air Div. Directors, EPA Regional 

Offices, at 2 (1992) (stating that “[f]or example, EPA cannot approve part of a submittal that 

specifies control measures and disapprove the part that specifies the test methods associated with 

those control measures”) available at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf. 

According to this guidance, EPA can issue partial approvals only in certain situations. For 

example, where a state submits “groups of rules” together, “[t]he EPA can approve some of the 

rules and disapprove the rest as long as the rules that are disapproved do not affect those that are 

approved.” Id. Where the rules or other proposals are not separable, however, EPA may not 

segment the analysis. Id. [FN 8]

Here, as explained above, all of the required components of a Regional Haze SIP or FIP affect 

one another, are part of a “single administrative action”, and EPA must evaluate them together to 

determine if the partial FIP complies with the CAA and the Haze Rule. Therefore, EPA’s 

proposed FIP for Indiana is improper. EPA must make a BART-alternative determination at the 

same time it reviews and approves Indiana’s revisions to its regional haze SIP that address 

regional haze for the first implementation period. [FN 9]
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[FN 8] This is consistent with Section 110(k) of the Clean Air Act, which allows for partial approval and partial 

disapproval of a SIP revision, but does not suggest that a portion of a single revision can simply be ignored when 

issuing such partial approvals or disapprovals. 42 U.S.C. § 7410(k)(3) (“If a portion of the plan revision meets all 

the applicable requirements of this chapter, the Administrator may approve the plan revision in part and disapprove 

the plan revision in part.”). 

[FN 9] EPA currently has two dockets open which piecemeal Indiana regional haze rules. Docket number EPA-HQOAR-2011-0729, which deals with the BART alternative for EGUs and Docket number EPA-R05-OAR-2011-0080, 

which deals with non-EGUs.

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA Cannot Approve FIPs without Ensuring Reasonable Progress 

EPA cannot partially reject regional haze SIPs and propose partial regional haze FIPs for 

Alabama, Florida, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North 

Carolina, Ohio, Pennsylvania, South Carolina, and Texas. [FN 111]In proposing to reject the SIP 

and issue partial FIPs, EPA illegally and arbitrarily addressed only part of the regional haze

equation, BART, without accounting for reasonable progress goals in these states and whether 

they can be achieved without the emissions reductions at power plants that BART would 

provide. See 76 Fed. Reg. at 82221. Each regional haze SIP or FIP must ensure reasonable 

progress with a comprehensive strategy that includes an array of measures that collectively put 

the state on a glide path toward restoration of natural visibility by 2064. See CAA § 

169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308(b) (requiring states to submit 

regional haze plans addressing the reasonable progress goals and long term strategy as required 

in section (d) and BART as required in section (e)). 

Thus, in approving each plan, EPA must determine that the sum of its parts will result in required 

visibility improvements. EPA cannot evaluate individual components of a regional haze plan in 

isolation, unmoored from the fundamental question whether reasonable progress will be 

achieved. Under the Clean Air Act and implementing federal regulations, reasonable progress is 

the cornerstone and over-arching mandate of each statewide regional haze plan. See UARG, 471 

F.3d at 1340. Indeed, among the “core requirements” of each regional haze plan are the 

reasonable progress goals and the long term strategy to attain those goals. 40 C.F.R. § 

51.308(d)(1), (3). BART, as one of the statutorily enumerated means of achieving reasonable 

progress, must also be evaluated alongside the reasonable progress goals and long term strategy. 

See CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A). 

[FN 111] EPA cannot approve the proposed FIPs for the additional reasons set forth in comments on EPA‘s 

proposed approval of regional haze SIPs for Ohio, Minnesota, Pennsylvania, and Indiana that were submitted on 

behalf of conservation groups including NPCA and the Sierra Club. Those comments are incorporated here by 

reference. Likewise, EPA cannot approve the proposed FIPs for the additional reasons set forth in state-specific 

comments on this proposal that have been submitted concurrently on behalf of conservation groups including NPCA 

and the Sierra Club. Those comments also are incorporated here by reference.

EPA Response: 

Please see section II.B.4 of the preamble to the final rule for EPA’s response to the comments 

concerning the relationship between the Transport Rule, BART, and reasonable progress.
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XI. Deficiencies in EPA’s Technical Analysis

1. Misinterpretation of the Two-Pronged Test 

Commenter: Willie R. Taylor, Director, Office of Environmental Policy and Compliance, 

U.S. Department of the Interior 

Comment:

Section III.C.I of the preamble to the draft notice of proposed rulemaking (NPRM) cites the 

Regional Haze Rule at 40 CFR 51.308(e)(3) to describe EPA's criteria for comparing visibility 

progress of an alternative program to BART. The regulatory text from 40 CFR 51.308(e)(3) sets 

two specific criteria as: 

(3) A State which opts under 40 CFR S1.308(e)(2) to implement an emissions trading program or 

other alternative measure rather than to require sources subject to BART to install, operate, and 

maintain BART may satisfy the final step of the demonstration required by that section as 

follows: If the distribution of emissions is not substantially different than under BART, and the 

alternative measure results in greater emission reductions, then the alternative measure may be 

deemed to achieve greater reasonable progress. If the distribution of emissions is significantly 

different, the State must conduct dispersion modeling to determine differences in visibility 

between BART and the trading program for each impacted Class I area, for the worst and best 20 

percent of days. The modeling would demonstrate "greater reasonable progress" if both of the 

following two criteria are met: 

(i) Visibility does not decline in any Class I area, and 

(ii) There is an overall improvement in visibility, determined by comparing the average 

differences between BART and the alternative over all affected Class I areas.

Although we understand EPA's explanation in the NPRM preamble describing its lst prong test, 

we don't agree that it meets the rule requirement as quoted above. As described in the NPRM, 

EPA applied the 1st prong test only to ensure that the Transport Rule alone, without any 

consideration of the replaced BART, would not have a negative effect on visibility at any Class I 

area. In our view, 40 CFR 51.308(e)(3) requires that the evaluation must be based on differences 

in visibility between the BART and trading programs. We recommend that EPA reconsider how 

it is applying the 1st prong criteria, or alternatively reword the above language to better match its 

interpretation. 

We also do not agree with EPA's 2nd prong interpretation. The evaluation method requires States 

to either evaluate total emission differences between BART and a trading program or conduct air 

quality modeling to evaluate "overall improvement" at affected areas. By expanding the "overall 

improvement" area to include all eastern or all continental U.S. Class I areas, EPA has created 

the unexpected consequence of suggesting that no control in some states is better than, or as 

good as, significant controls which would have resulted from BART. EPA modeling results 

smooth out individual Class I area "declines" as well as downplay the significance of large 

emission reductions on the western edge that would result from presumptive BART controls. 
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As examples, Kansas completed BART determinations for EGUs subject to BART in its 

Regional Haze State Implementation Plan, and EPA has proposed to approve Kansas' Plan (76 

FR 52604). Yet Kansas' emissions allowance under the Transport Rule will not require these 

EGUs to install controls; thus in this case, emissions under the Transport Rule are greater than 

emissions under BART. Similarly, in Nebraska, Gerald Gentleman Generating Station is subject 

to BART and meets the Appendix Y criteria for presumptive controls (although the state is 

currently not requiring controls for BART). Gerald Gentleman has been identified as a cause of 

visibility impairment at Badlands and Wind Cave National Parks in South Dakota, yet 

Nebraska's allocation under the Transport Rule will not require any S02 control for this 

presumptive BART source. Lesser-or-no additional controls under the Transport Rule cannot 

produce better visibility progress than greater emission reductions of, at a minimum, presumptive 

BART. EPA modeling indicates that visibility on the 20% worst days at Badlands, Wind Cave, 

and Theodore Roosevelt National Parks is projected to be poorer under the Transport Rule than 

under BART. We recommend that EPA reconsider the 2nd criteria as described above and 

evaluate how individual State adoption of the Transport Rule will impact the Class I areas that 

each State's emissions affect.

EPA Response:

[placeholder]

2. Averaging Across All Class I Areas

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA Improperly Averaged Visibility Impacts Based on Emission Reductions at All Sources 

across All Class I Areas 

Under the pre-existing regulations that purport to allow for implementation of alternative programs in 

place of BART, an agency seeking to impose an alternative to source-specific BART must 

demonstrate that “the emissions trading program or other alternative measure will achieve greater 

reasonable progress than would have resulted from the installation and operation of BART at all 

sources subject to BART in the State and covered by the alternative program.”40 C.F.R. § 

51.308(e)(2)(i) (emphasis added). This demonstration requires that the entity proposing the 

alternative calculate BART and the emission reductions achievable from BART at each BARTeligible source that would be covered by the alternative. Id. § 51.308(e)(2)(i)(C); see also Am. Corn 

Growers Ass’n v. EPA, 291 F.3d 1 (D.C. Cir. 2002) (expressly requiring states, in determining what 

constitutes the best available retrofit control, to engage in a source-by-source analysis of the visibility 

impacts achievable from application of BART); 40 C.F.R. § 51.309(d)(2) (explaining that where a 

state within the Grand Canyon Visibility Transport Region elects to adopt the Grand Canyon 

Visibility Commission‘s recommendations for the region in lieu of complying with the requirements, 

including BART, under § 51.308, it must submit a plan to EPA that projects visibility conditions at 

each of the 16 Class I areas in the transport region, based on consultation with other transport region 

states). As the Forest Service has affirmed in its comments to EPA, “[T]he appropriate analysis 

technique should limit the geographic scope of both “affected Class I areas and modeled emissions 

relative to each state as is implied in 40 C.F.R. § 51.308(e)(3).” USFS Comments at 1. Thus, to be 

consistent with its existing rules, EPA must determine whether a given program is better than BART 

on a state-by-state basis based on a source-by-source five-step BART analysis, a requirement the 

agency has arbitrarily refused to follow as it steps into the shoes of the states. 
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The failure to look at CSAPR versus BART on a state-by-state basis precludes leaves states that 

intend to opt out of BART in reliance on CSAPR without the requisite showing that CSPAR is 

“better than BART.” See id. at 7 (explaining that “[f]rom a regulatory perspective,” EPA should 

look at impacts of the alternative as would the states because the rule allows the states to opt out 

of the individualized analysis). Because this rulemaking essentially allows for the interpretation 

that the Transport Rule is a BART alternative program that a State may opt to participate in and 

rely upon to satisfy the 308(e) requirements, the dispersion modeling conducted by EPA should 

have identified the “affected” Class I areas relative to each State in the Transport region rather 

than simply looking at the aggregate across each “affected” scenario that was analyzed. Id. 

In fact, the failure to look across all Class I areas on a state by state basis poses a serious threat to 

visibility in Class I areas. As discussed below, by averaging results across the entire United 

States, EPA was able to ignore CSAPR‘s inferiority to BART at many Class I areas. 

Averaging Visibility Impacts Across the Entire United States or Within Regions Masks 

CSAPR’s Failure to Achieve Greater Reasonable Progress at Many Class I Areas in Many States 

Instead of evaluating whether CSAPR achieved greater reasonable progress than BART on a 

state-by-state, source-by-source basis, EPA approached the second prong of the reasonable 

progress test, 40 C.F.R. § 51.308(e)(3)(ii) - which asks if the alternative provides greater 

visibility improvement at all affected class I areas - by spatially averaging the visibility 

reductions seen under each program across all Class I areas in the CSAPR region and all Class I 

areas the nation. Averaging across this expansive area masks the failure to obtain greater 

visibility improvements that are possible with the application of BART both regionally and state 

by state. 

For example, EPA‘s own modeling analysis shows that “Nationwide BART” [FN 20] scenario 

provides greater visibility improvement than the alternative “Transport Rule + BART-elsewhere” 

scenario in many Class I Areas across an entire region. [FN 21]

All of these Class I areas that EPA‘s modeling predicted would experience better visibility 

improvement under Nationwide BART are west of the Mississippi River, covering much of the 
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central plains. Id. Yet, because EPA chose to look at spatial averages across all Class I areas in 

the CSPAR region, EPA ignored the fact that CSAPR is decidedly not better than BART in 

many affected Class I Areas in many states. In other words, EPA‘s approach sacrifices progress 

on visibility in the central plains, [FN 23] a result the USFS forecast to EPA. See USFS 

Comments at 8 (“The net effect of this proposal creates subregions within the Transport Rule 

domain where emissions reductions under CSAPR would be significantly less than under BART,

“including those in the “Mississippi-West” subregion where the USFS predicts that “the 

Transport Rule domain will have SO2 emissions 164% greater under CSAPR than would have 

been assumed by presumptive BART.”).

The above example illustrates how spatial averaging can be used to manipulate conclusions as to 

whether CSAPR is better than BART. For example, if EPA chose to average visibility at the 27 

Class I areas west of the Mississippi River but east of the Rocky Mountains - areas that for 

practical purposes should be considered separately from the eastern scenario because they react 

differently to sulfate aerosols - EPA would have found based on its own data that “Nationwide 

BART” is superior to the “Transport Rule + BART-elsewhere” on the best 20% days. See 

Gebhart Report at 8-9 & Table 3-2. Again, the USFS confirms this point, stating that “BART 

controls for SO2 are an essential component to meeting the subregional progress goals for the 

Class I areas in and surrounding the “Mississippi-West” subregion.” USFS Comments at 9. 

This problem in the “Mississippi-West” region underscores the importance of evaluating the 

performance of alternative programs as compared to BART across a more limited geographic 

area i.e. on a state-by-state basis as governing regulations require. EPA cannot discount the many 

instances in which BART yields greater progress toward visibility goals than CSAPR by 

averaging visibility impacts across the entire CSAPR region, much less the entire country. 

Instead, EPA must determine whether a given program is better than BART on a state-by-state 

basis having considered what an alternative would achieve in the way of emissions reductions 

relative to BART at each relevant source. Not only has EPA failed to undertake this analysis, any 

such appropriate analysis would preclude the conclusion that CSAPR is better than BART, as the 

above examples confirm. EPA offers no lawful or reasoned explanation for departing from the 

approach required in its existing rules, nor can it do so.

[FN 20] The “Nationwide BART” scenario estimated the effect of applying BART controls at specific BARTeligible source across the entire nation, including sources in the CSAPR region in the east and sources in the nonCSAPR region in the west. 

[FN 21] EPA’s “Transport Rule + BART-elsewhere” scenario estimated the effect of relying on CSAPR, or the 

Transport Rule, in CSAPR states, yet applying BART at BART-eligible sources outside of the CSAPR region.

[FN 22] It is not surprising that visibility in the central plains will suffer if CSAPR is substituted for BART; 

emission allocations under CSAPR were allotted based on the impact that each state had on the ability of downwind 

states in the CSAPR region, which is predominantly east of the central plains, to attain and maintain the fine 

particulate and ozone NAAQS. For this reason, certain CSAPR border states such as Nebraska and Minnesota, 

which were found to impact attainment in only one county in Wisconsin, are able to emit more than other CSAPR 

states, sacrificing visibility conditions west of the CSAPR region. See U.S. EPA, Cross-State Air Pollution Rule 

(CSAPR), Where You Live, http://www.epa.gov/airtransport/whereyoulive.html (showing that emissions from 

Nebraska and Minnesota are only linked to nonattainment at one point in Wisconsin). 

EPA Response: 
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[OGC help needed. I think you said that this averaging point had been part of previous 

litigation.] See preamble discussion. EPA finds either the 60 or 140-area average to be an 

appropriate identification of “affected class I areas.” 

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

Arithmetic Averaging Cannot Accurately Demonstrate Whether CSAPR Provides Greater 

Visibility Benefits than BART 

EPA also improperly used a simple arithmetic mean to conclude that visibility improvements in 

the aggregate would be greater under CSAPR than BART per 40 C.F.R. § 51.308(e)(3)(ii). 

Whether improperly averaging across all the affected Class I areas or doing so in connection 

with a state-by-state evaluation, relying on an arithmetic mean is likely to misconstrue progress 

by heavily weighting outlier results such as large emissions reductions at a single area. In other 

words, significant improvements in a small number of Class I areas—even on just a few days 

each year—have apparently skewed EPA‘s averaging to yield a conclusion that visibility is 

improving notwithstanding lackluster progress in a majority of Class I areas. EPA‘s analysis 

must correct for this fundamental problem.

EPA Response: 

The BART rule (§ 51.308(e)(3)(ii)) states that there should be an overall improvement in

visibility, determined by comparing the average differences between BART and the alternative 

over all affected Class I areas. EPA applied the rule methodology and calculated the average 

difference in visibility improvement over all affected Class I areas. As noted in the preamble, we 

continue to find that the “Transport Rule + BART-elsewhere” case is better than the “Nationwide 

BART” case for both the 140 nationwide Class I areas and the 60 Eastern Class I areas.

3. EPA’s Two Control Scenarios Are Inappropiate

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA’s Analysis Fails to Compare the Proper BART Scenario to the Proposed Alternative 

EPA’s analysis suffers from an overarching flaw: it proceeds as if CSAPR were developed only to 

serve as a BART alternative, ignoring the fact that CSAPR programs will be implemented regardless 

of BART. Thus, EPA compared a “Nationwide BART” scenario that does not account for any 

emissions reductions due to CSAPR, to the “Transport Rule + BART elsewhere “scenario, estimating 

the emissions in each scenario based on a base case that likewise does not account for CSAPR.

Because CSAPR is mandated under § 110 of the Clean Air Act, EPA’s “Nationwide BART” scenario 

is pure fiction; CSAPR and BART will operate simultaneously unless EPA approves this proposal to 

rely solely on CSAPR. 

By failing to take account of any emission reductions from CSAPR in the “Nationwide BART”

scenario, EPA arbitrarily and unlawfully rewards the “Transport Rule + BART-elsewhere” 

scenario for accomplishing emission reductions associated with the status quo, while punishing 

“Nationwide BART” scenario for failure to keep up with the status quo.[FN 28] Where the 

alternative to BART is itself mandated to meet the requirements of the Clean Air Act, the 

pertinent question under the reasonable progress test must be whether the mandated program will 
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achieve more than what is necessary to fulfill its own obligations such that it can achieve better 

visibility gains in Class I areas than BART. Isolating visibility improvements under CSAPR and 

making a comparison to improvements from nationwide BART in the absence of CSAPR is an 

artificial enterprise that ignores the requirements of Clean Air Act § 110. EPA cannot read either 

Section 110 or Section 169A out of the statute but must give all statutory provisions their effect. 

See TRW, 534 U.S. at 31 (explaining that it is “a cardinal principle of statutory construction” that 

“a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, 

sentence, or word shall be superfluous, void, or insignificant”) (quoting Duncan v. Walker, 533 

U.S. 167 (2001); see also United States v. Menasche, 348 U.S. at 538–39 (“It is our duty  ̳to give 

effect, if possible, to every clause and word of a statute.”) (quoting Montclair, 107 U.S. at 152 

(1883). 

Thus, to correct for the fact that CSAPR is independently required, EPA must compare a 

CSPAR-only scenario to a scenario where BART applies in concert with CSAPR as would be 

the case if EPA abided by the mandate of both programs. This comparison would allow EPA to 

determine whether BART would achieve aggregate visibility benefits above and beyond what 

CSAPR will achieve, or whether the emissions reductions from CSPAR by itself overwhelm any 

potential incremental benefit from BART.

The better than BART rule is focused on whether CSAPR can substitute for BART in the 

CSAPR region, thus BART will always apply in the non-CSAPR region. Given this reality, 

emissions reductions from BART in the non-CSAPR states can be placed in the base case. 

However, the analysis in these comments simply corrects for the primary flaw, ensuring that 

“Nationwide BART” is never evaluated in the absence of CSAPR. 

Looking at the emission reductions achieved from applying BART at the sources EPA assumed 

were subject to BART per the “Nationwide BART” scenario and from CSAPR at the sources 

EPA assumed were not subject to BART per the “Transport Rule + BART-elsewhere” scenario, 

it is highly unlikely that EPA could show that CSAPR provides advantages over CSAPR 

combined with BART. As the summary table below demonstrates, the correct BART + CSAPR 

scenario would further reduce NOx emissions by 80,886 tons per year compared to EPA’s 

“Transport Rule + BART-elsewhere” scenario, while reducing SO2 emissions by an additional 

625,913 tons per year.
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[FN 28] Because CSAPR was scheduled to come online at the beginning of 2012, CSAPR reductions are part of the 

status quo and could have been included in the 2014 base case. However, adding CSAPR to the 2014 base case 

could make it difficult to determine whether the “Transport Rule + BART-elsewhere” scenario will cause a decline 

in visibility over the 2014 base case. Using an artificial base case that does not include CSAPR reductions is thus 

appropriate to isolate what CSAPR and BART in the CSAPR region each incrementally achieve in the way of 

visibility improvements. Cf. USFS Comments at 14 (“EPA, by analyzing the BART-alternative emissions as the 

same emission year relative to the modeled future baseline conditions in the absence of any BART or alternative

program control requirements, . . . seemingly creates a guaranteed “no degradation” test.”). 

EPA Response: 

See preamble discussion of EPA’s finding that CSAPR, as was the case for CAIR, is precisely 

the kind of alternative program that may be considered “surplus” under the regional haze rule.

4. Comparison of Earthjustice’s BART+CSAPR Scenario with CSAPR for 

Minnesota BART Units

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

On a statewide basis, the alternative BART + CSAPR scenario produces better results than the 

“Transport Rule + BART-elsewhere” scenario. For example, the Conservation Organization‘s 

Technical Support Attachment to Earthjustice’s Comments on the Proposed Approval of the 

Minnesota State Implementation Plan for Regional Haze (“Minnesota Technical Support”) [FN 

31] compared the subset of BART-subject EGUs in Minnesota under the Nationwide BART 

scenario to EPA‘s CSAPR emissions projections for the same units to estimate whether CSAPR 

alone can accomplish both its own goals and those of the regional haze program. [FN 32] 

Because it is reasonable to assume that CSAPR emissions predictions for non-BART-subject 

EGUs will be similar under both the CSAPR scenario and the Nationwide BART scenario at 

non-BART eligible sources, it follows that CSAPR + BART will be better than CSAPR alone if 

BART provides greater emissions reductions than CSAPR at BART-subject sources. To this 

point, Table 3 below demonstrates that BART would result in significantly fewer emissions at 

BART-subject units than the emissions EPA projected for those units under CSAPR.
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[FN 31] See Minnesota Technical Support at 18-20. Earthjustice‘s comments and the Technical Support Attachment, 

which were submitted on behalf of National Parks Conservation Association, the Minnesota Center for 

Environmental Advocacy, the Friends of the Boundary Waters Wilderness, Voyageurs National Park Association, 

and the Sierra Club, were filed on February 24, 2012 in Docket No. EPA-R05-OAR-2010-0037. Those comments 

and the Technical Support Attachment are incorporated by reference herein. 

[FN 32] The Technical Support Attachment recognized the difficulty of predicting emissions without running the 

Integrated Planning Model. Nonetheless, this example gives an estimate of whether CSAPR + BART will reduce 

emissions over CSAPR alone, thereby providing for greater reasonable progress than CSAPR. 

EPA Response: 

EPA does not find this comparison to be relevant. An appropriate basis for comparison must 

include the entire EGU population, not just those subject to BART. Moreover, the appropriate 

comparison is based on an air quality evaluation of the overall visibility impacts of the 

alternative program on affected Class I areas over multiple states, not a comparison of emissions 

from selected sources. 

5. EPA Did Not Apply SO2 Controls to Units Smaller than 100 MW

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA Unlawfully Assumed that SO2 BART Controls Would Only Apply to EGUs with Greater 

than 100 MW Generating Capacity 

EPA stated that “it was assumed that the threshold for BART-eligibility was 100 MW for SO2

and 25 MW for NOx and no sources were eliminated based on their annual total emissions. 

Appendix A lists the EGUs that were assumed to be BART-subject for the purpose of this 
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analysis.” See TSD at 4. In our review of EPA‘s assumed SO2 emission rates below, it was 

assumed that all EGUs listed in Appendix A of EPA‘s Technical Support Document for 

Demonstration of the Transport Rule as a BART Alternative were assumed to be BART-subject 

in EPA’s analysis, as stated in the Technical Support Document and at Appendix A. However, to 

the extent that EPA may argue that it only assumed EGUs over 100 MW in generating capacity 

were subject to BART for SO2 the application of such a generating capacity threshold is arbitrary 

and unjustified. The only size limitation on BART-eligibility is for fossil-fuel fired steam electric 

plants, which must have more than 250 million British thermal units per hour heat input, which is 

approximately equivalent to about 25 MW generating capacity.[FN 37] See CAA §§ 169A(b)(2), 

(g)(7), 42 U.S.C. §§ 7491(b)(2), (g)(7); see also 40 C.F.R.§51.301 (defining “existing stationary 

facility” and BART-eligible source”). Nowhere in the statute or the implementing regulations is 

BART-eligibility limited to units less than 100 MW for SO2 In fact, all visibility impairing 

pollutants from a source are modeled together to determine whether the source is subject to 

BART. 

In fact, there are several examples of units of less than 100 MW generating capacity that have 

been determined to be subject to BART, and that have been required to install SO2 scrubbers to 

comply with BART. For example, Silver Bay Boiler 2 in Minnesota, which impairs visibility 

more than any other BART-eligible EGU in the state,[FN 38] only has a generating capacity of 

69 MW. Silver Lake Unit 4 in Minnesota, which has a generating capacity of 59.2 MW, was also 

determined to be subject to BART and required to install a scrubber to comply with BART.[FN 

39] Martin Drake Unit 6 in Colorado has a generating capacity of 77 MW and was determined to 

be subject to BART and required to install a new spray dryer to meet BART.[FN 40] Based on 

the foregoing, it is improper for EPA to impose a 100 MW generating capacity floor on SO2 

BART, a flaw that renders EPA‘s Nationwide BART 2014 emissions scenario arbitrary and 

unlawful.

[FN 37] Based on an assumed heat rate of 10,000 Btu/kWhr. 

[FN 38] See December 2009 Minnesota Regional Haze State Implementation Plan, Table 9.2 (at 68), available at 

http://www.pca.state.mn.us/index.php/air/air-quality-and-pollutants/general-air-quality/minnesota-regional-hazeplan.html). 

[FN 39] Id. Table 9.4 (at 71). 

[FN 40] See Colorado Visibility and Regional Haze State Implementation Plan for the Twelve Mandatory Class I 

Federal Areas in Colorado, Approved January 7, 2011, Table 6-2 (at 43), available at 

http://www.cdphe.state.co.us/ap/RegionalHaze/RHSIPFINAL07JAN2011.pdf). 

EPA Response: 

EPA continues to believe that it is unlikely that add-on controls would be required as BART for 

EGU units having a capacity less than 100 MW. EPA believes this to be an appropriate 

assumption due to the higher costs of controlling these units, which generally have lower rates of 

utilization than larger units.

Even if BART-eligible units less than 100 MW capacity were assumed to be subject to 

presumptive SO2 emission limits, emissions reductions from these units would be very small 

compared to overall emission reductions achieved and would have very little effect on the EPA’s 

technical analysis. The EPA has included in the docket for this action an inventory of BARTeligible units having a capacity between 25 MW and 100 MW. (Units less than 250 MMBtu/hr--
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approximately 25 MW-- are not BART-eligible). In response to this comment, we calculated the 

SO2 emissions under the future 2014 base case, the “Nationwide BART” scenario, and the 

“Transport Rule + BART-elsewhere” scenario. In the 2014 base case the total SO2 emissions 

from these units is about 101,000 tons, which represents a very small fraction, 1.4 percent, of the 

overall 2014 base case inventory of 7.2 million tons of SO2. Under the “Transport Rule + BARTelsewhere” scenario, EPA projected that SO2 emissions from these units would decline to 46,000 

tons, while under the “Nationwide BART” scenario, we projected that SO2 emissions from these 

units would increase to 124,000 tons or about 3 percent of the more than 3.8 million tons in the 

2014 “Nationwide BART” control scenario. (We see emissions increases because under this 

scenario higher sulfur coal becomes less expensive and thus some switching to higher sulfur fuel 

is projected for these small units). If we had applied the presumptive BART limits to each of the 

units in this inventory (as noted, a very conservative assumption), SO2 emissions would decrease 

to about 15,000 tons. This would reduce total SO2 emissions in the “Nationwide BART” case 

from roughly 3.8 million tons to about 3.7 million tons. Given that SO2 emissions in the 

“Transport Rule + BART-elsewhere” control scenario are about 2.9 million tons, even applying 

presumptive BART limits to all units between 25 and 100 would still result in nearly 1 million 

tons fewer SO2 emissions under the “Transport Rule + BART-elsewhere” scenario. Thus, while 

EPA continues to conclude that it is appropriate to not apply presumptive SO2 limits to BARTeligible units smaller than 100 MW, the EPA also finds no reason that alternative assumptions 

would affect our findings or conclusion that the Transport Rule trading programs meet the test 

for an alternative program to source-specific BART. 

6. Reliance on Presumptive BART

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA Discounted the Visibility Improvements in the Nationwide BART Scenario by Relying on 

Presumptive BART 

EPA analyzed whether CSAPR is better than BART without conducting individual BART 

determinations for affected coal plants. Instead, the agency assumed that presumptive BART for 

SO2 and NOx represents BART, unless an actual emission rate at a given unit with existing 

controls is lower. See 76 Fed. Reg. at 82225; TSD at 4-5. However, as discussed above, preexisting regulations require EPA to analyze what controls would be imposed as BART at each 

BART-eligible source to be covered by an alternative program. See 40 C.F.R. § 

51.308(e)(2)(i)(C); see also Section VII.A., supra. Relying on presumptive BART is not 

consistent with this regulatory requirement. Again, EPA offers no lawful or rational justification 

for departure from this requirement. 

The “presumptive BART” emission limits for EGUs included in EPA’s BART Guidelines were 

based on EPA’s broad review of the control technologies and emission limits that could be met 

cost effectively at a wide range of coal-fired power plants. See Sections IV.E.4 and 5 of the 

BART Guidelines in 40 C.F.R. Part 51, Appendix Y. Presumptive limits are not de facto BART 

standards; they do not meet the minimum requirements for BART that federal law mandates and 

do not negate the need for a case-by-case five-factor analysis for each BART source. See Partial 

Approval and Partial Disapproval of Arkansas Regional Haze SIP, advance notice of final 

rulemaking at 21 (“the RHR and BART Guidelines do not exempt states from a five factor 

BART analysis”). For this reason, EPA recently disapproved Arkansas‘s SO2 and NOx BART 
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determination for AEP Flint Creek Boiler No. 1 and Entergy White Bluff Plant Units 1 and 2, 

even though the BART determination met the presumptive BART limits. As EPA explained, it 

was under no obligation to approve presumptive BART where the state had not conducted an 

individual analysis and the presumptive BART controls did not reflect the best controls available 

at Arkansas‘s subject to BART sources. See id. at 18-67, 79; id. at 23 (“EPA reiterates that the 

RHR and the BART Guidelines make clear that the presumptive limits are rebuttable and may 

not necessarily be the appropriate level of control for all EGUS. Therefore, EPA is not required 

to approve every BART determination that meets the presumptive emission limits, especially 

when there is no analysis that supports the state's decision in adopting the presumptive limit 

instead of a more or less stringent emission limit.”). 

Reliance on presumptive BART is not only procedurally improper, it also skews EPA‘s 

alternatives analysis in favor of CSAPR. Actual BART determinations are often one half or one 

third of the presumptive limits, given the demonstrated ability of available air pollution control 

technology to reduce emissions at increasingly high levels of control efficiency. For example, 

EPA partially approved Oklahoma‘s SIP and issued a partial FIP for Oklahoma adopting SO2 

BART limits of 0.06 lb/MMBtu for several EGUs, a control that is 60% lower than presumptive 

BART of 0.15 lb/MMBtu that applies to scrubbed units that achieve less than 95% efficiency. 

See 76 Fed. Reg. 81728, 81730 (Dec. 28, 2011) (adopting the 0.06 lb/MMBtu SO2 limit for Units 

4 and 5 of the OG&E Muskogee plant, Units 1 and 2 of the OG&E Sooner plant, and Units 3 and 

4 of the AEP/PSO Northeastern plant). For unscrubbed units, presuming that SO2 BART limits 

will be commensurate with installing a scrubber with 95% efficiency likewise underrepresents 

BART; modern scrubbers today reduce SO2 emissions by 99%. See Proposed Rule, 76 Fed. Reg. 

16168, 16188 (March 22, 2011) (EPA Region 6 partial approval of Oklahoma SIP; noting that 

according to an industry contractor, “[w]et scrubbing is the predominant technology for largescale utility applications in most parts of the world”).[FN 42] Similarly, EPA has required 

emission limits that go beyond NOx limits imposed as presumptive BART. Table 2-1 in the 

Technical Support Document sets forth the presumptive BART NOx emission limits based on 

boiler configuration, and the lowest limit, imposed on cyclone boilers firing bituminous, 

subbituminous, or lignite coal, was 0.10 lbs/MMBtu. Yet EPA has required San Juan Units 1-4 

to install SCR and meet a NOx limit of 0.05 lb/MMBtu on a 30-day operating average. 76 Fed. 

Reg. 52388, 52388 (Aug. 22, 2011). EPA also has proposed to require SCR to meet BART at 

Milton R. Young Units 1 and 2 and Leland Olds, to meet a NOx rate of 0.07 lbs/MMBtu on a 30 

boiler operating day average. See 76 Fed. Reg. 58570, 58599, 58647 (Sept. 21, 2011). These 

requirements and limits, which represent BART based on EPA‘s own source-specific analyses, 

go well beyond EPA‘s presumptive NOx BART limits. 

Because sources often are subject or should be subject to BART limits significantly more 

stringent than presumptive BART limits, reliance on presumptive BART arbitrarily shortchanges the visibility benefits that could be realized by installing and operating controls that are 

genuinely representative of BART. Indeed, EPA‘s own analysis acknowledges the reality that 

presumptive BART is often less stringent than actual BART—i.e., EPA did not rely on 

presumptive BART where actual emissions at a unit with existing controls were lower than 

presumptive BART. 
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In addition, source-specific BART limits take into account the remaining useful life of emission 

units. See, e.g., CAA § 169A(g)(2), 42 U.S.C. § 7491(g)(2). For many emission units, owners 

may choose to retire a source instead of complying with requirements for BART control 

technologies. In effect, those units would have a BART emission rate of zero not only for SO2 

and NOx but also for direct PM2.5 and ammonia. EPA completely failed to consider this 

potential. 

For all of these reasons, EPA acted arbitrarily in assuming that presumptive BART would be found 

adequate where BART determinations have yet to be made. In failing to evaluate BART and the 

associated emissions reductions achievable for each source within the CSAPR region subject to 

BART, EPA arbitrarily and unlawfully discounted the visibility improvement capability of the 

source-specific BART limits that would apply if the five-factor analyses required by the Clean Air 

Act were actually undertaken. 

Finally, EPA cannot credibly claim that because it broadly applied BART to sources that might 

not be BART eligible, it overestimated emissions reductions, cancelling out the potential 

undercounting of emissions reductions stemming from its reliance on presumptive BART. First, 

applying limits reflective of actual BART to those units that would be subject to BART might 

achieve lower overall emissions on a national level than presumptive BART applied to all BART 

eligible EGUs. See Gebhart Report at 16. Second, if EPA assumed a source was subject to 

BART that does not in fact cause or contribute to visibility impairment at the Class I areas, and 

thus should not be subject to BART, any modeled emission reductions at that source would not 

result in modeled visibility improvements that would weigh in favor of BART. Id.

[FN 42] Other technical sources likewise indicate that modern scrubbers can achieve SO2 reduction efficiencies up 

to 99%. See, e.g., Sargent & Lundy LLC, Wet Flue Gas Desulfurization Technology Evaluation, Project No. 11311-

001 §§ 1.3.1-.2, at 10 (May 2006) (explaining that “[r]ecent contracts for LSFO [Limestone Forced Oxidation or 

conventional wet scrubber] technology in the US market have included guarantees of 99%,” and that “MEL 

[Magnesium Enhanced Lime] forced oxidation systems have achieved a better level of performance than the LSFO 

process, with SO2 removal efficiencies between 98% and 99% in power plants also firing a variety of high- and 

low-sulfur coals”) [Attachment 3]; Kevin Smith, William Booth, & Stephane Crevecoeur, Evaluation of Wet FGD 

Technologies to Meet Requirements for Post CO2 Removal of Flue Gas Streams, Mega Paper No. 49 (2008) 

[Attachment 4]; Chuck Dene, Lesley A. Baker & Robert J. Keeth, FGD Performance Capability, Mega Paper No. 62 

(2008) (identifying several technologies that have achieved or are capable of achieving 99% SO2 control) 

[Attachment 5]. We also incorporate by reference the discussion of concerning high efficiency scrubbers, pages 54-

56, included in Earthjustice‘s comments filed on behalf of the Sierra Club, the National Parks Conservation 

Association, and the Clean Air Council on the Approval and Promulgation of Air Quality Implementation Plans 

Commonwealth of Pennsylvania; Regional Haze State Implementation Plan Proposed Rule, 77 Fed. Reg. 3984 (Jan. 

26, 2012), Docket ID Number EPA-R03-OAR-2012-0002, filed Feb. 27, 2012 and any supporting materials filed 

therewith. 

Commenter: Earthjustice/Texas

Comment:

EPA Failed to Demonstrate That CSAPR is better than BART because its Modeling and 

Assumptions are Flawed

Setting aside the fact that the alternative program provisions in the RHR do not comply with the 

statutory exemption requirements, as stated above, EPA’s reliance on CSAPR as an alternative to 

BART is likewise unsupportable because of insurmountable flaws in EPA’s modeling and the 

assumptions underlying the modeling. In order for a trading program such as CSAPR to be 

“better than BART,” and where, as here, the distribution of emissions under the alternative will 
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be substantially different than under BART, dispersion modeling must demonstrate that (1) 

visibility under the BART-alternative would not decline in any Class I area, and (2) the BARTalternative would result in overall visibility improvement “by comparing the average differences 

between BART and the alternative over all affected Class I areas.” 40 C.F.R. § 51.308(e)(3).

As explained below, EPA’s modeling skews the analysis in favor of CSAPR as a BART 

alternative in a number of important respects, including the following two examples. First, 

EPA’s modeling is flawed because it models the emission reductions of presumptive BART 

which, based on recent determinations has been 2 to 3 times higher than appropriate, unit 

specific BART determinations based on the required five step BART analysis. See id. 

§51.308(e)(1)(ii)(A). The modeling thus underestimates the visibility benefits of BART.

Commenter: Kristin A. Henry, Sierra Club

Comment:

EPA significantly discounted the improvement that would be seen under a nationwide BART 

scenario by failing to model emission limits that actually reflect BART. EPA, instead, relied on 

outdated presumptive BART limits that fail to account for significant advances in air pollution 

control technologies that have prompted the agency itself to impose far more stringent BART 

determinations. In many cases, EPA did not calculate presumptive BART in the manner it 

described, and instead arbitrarily used limits that far exceed the already lax presumptive BART.

According to EPA’s regional haze regulations, when making a determination as to whether to 

implement an emissions trading program or other alternative measure rather than require sources 

subject to BART to install, operate, and maintain BART, a state must conduct “an analysis of the 

best system of continuous emission control technology available and associated emission 

reduction achievable for each source subject to BART and covered by the alternative program.” 

40 C.F.R. § 5108(e)(2)(i)(C). Specifically, “[t]his analysis must be conducted by making a 

determination of BART for each source subject to BART ...” Id. (emphasis added). In other 

words, BART is a unit specific determination. BART controls and emission levels at BARTeligible sources are determined not simply by setting them to be equal to their presumptive 

BART emission levels but by following a detailed case- y-case five-step analysis process 

specified in the BART regulations. See 40 C.F.R. 50 (App. Y (V)(II)(A)). 

However, in its dispersion modeling which EPA conducted to compare differences in visibility 

between BART and CSAPR, EPA took a shortcut and, instead of actual unit-specific BART, 

used presumptive BART limits to model the visibility benefits of BART controls (unless actual 

emissions at an EGU were lower than presumptive BART). 76 Fed. Reg. 82219, 82225. That is, 

for SO2, EPA assumed that BART controls at a modeled EGU would reflect use of a scrubber 

achieving 95% scrubber control efficiency or 0.15 lb/MMBtu. 70 Fed. Reg. 39104, 39131. For 

NOx, EPA assumed that BART controls at a modeled coal-fired EGU in Indiana would achieve 

anywhere between 0.23 to 0.45 lb/MMBtu, based on coal type and boiler configuration. See 70 

Fed. Reg. 39104, 39135. This application of presumptive BART is improper. Presumptive 

BART limits are not de facto BART standards; they do not meet the minimum requirements for 

BART that federal law mandates and do not negate the need for a case-by-case five-factor 

analysis for each BART source. In addition, reliance on presumptive BART is not only 
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procedurally improper, it also skews EPA’s alternatives analysis in favor of CSAPR in that the 

presumptive BART limits used in its modeling are outdated. 

As a result, EPA’s modeling, which employs presumptive BART limits, underestimates the 

visibility benefits of the Haze Rule’s BART requirements. BART controls today often achieve 

far lower emissions rates than the presumptive BART rates used by EPA in its modeling. In fact, 

for several BART analysis that have been conducted for coal-fired EGUs in the Western United 

States (i.e., in non-CAIR, non-Transport Rule, and non-CSAPR states) in recent years, actual 

BART controls and emission levels are more stringent than the corresponding presumptive 

BART emission levels. For instance, recent BART analyses have found that existing EGUs with 

dry and wet scrubbers typically achieve SO2 rates as low as 0.06 lb/MMBtu. See 76 Fed. Reg. 

81728, 81743. In fact, EPA recently set a BART limit of 0.06 lb/MMBtu SO2 based on a rolling 

30-day average for six coal fired units in Oklahoma. See 76 Fed. Reg. 81728, 81729 (Dec. 28, 

2011) (codified at 40 CFR Part 52). Similarly, existing SCR controls can achieve NOx rates as 

low as 0.05 lb/MMBtu. See 76 Fed. Reg. 52388, 52389. Notably, these rates are far below the 

presumptive BART limits used by EPA in its “better than BART” analysis. 76 Fed Reg. 82219, 

82225. What is more, even the aforementioned 0.06 SO2 lb/MMBtu and 0.05 NOx lb/MMBtu 

levels are not the most stringent levels achievable by current pollution reduction technologies.

Obviously, EPA’s use of presumptive BART as a shortcut in its “better than BART” modeling 

underestimates the emissions reductions from actual BART controls and the resulting visibility 

benefits of BART at Class I areas.[Fn 14] There is no legally-defensible basis for EPA to use a 

shortcut that significantly underestimates the visibility benefits of BART, as EPA’s presumptive 

BART approach does here.[FN 15] EPA must instead conduct actual, realistic EGU-specific 

BART determinations to serve as the basis for its “better than BART” modeling. Only by 

comparing actual BART with CSAPR could EPA make the requisite finding that CSAPR is 

better than BART, as required by the Haze Rule. See 40 C.F.R. § 51.308(e)(2) & (e)(3).

[FN 14] Although Sierra Club cannot positively state that the unit-specific BART emission limits for all coal-fired 

EGUs in Indiana would necessarily be 0.06 lb/MMBtu for SO2 or 0.04 lb/MMBtu for NOx, we are saying that 

especially considering the radical discrepancy between CSAPR emission rates and the Oklahoma BART emission 

limits, it would be arbitrary for EPA to assume that BART emission limits for these states’ EGUs would be 

presumptive BART.

[FN 15] In, Center for Energy and Economic Development v. Environmental Protection Agency, 398 F.3de 653, 660 

(D.C. Cir. 2005), the Court mandated that EPA would need to do an individual BART determination for each source 

in the state and then determine that CSAPR imposed a more stringent emission on that individual source than the 

individual BART determination. See also American Corn Growers Association v. Environmental Protection 

Agency, 291 F.3d 1, 14-24 (D.C. Cir. 2002).

Commenter: Earthjustice/Texas

Comment:

EPA’s Modeling Underestimates the Visibility Benefits of BART by Using Presumptive BART, 

Rather Than Actual BART

EPA’s modeling underestimates the visibility benefits of the RHR’s BART requirements. EPA 

used presumptive BART limits to model the visibility benefits of BART controls at EGUs, 

unless actual emissions at an EGU were lower than presumptive BART. 76 Fed. Reg. at 82225.16 

Thus, for SO2, EPA assumed that BART controls at an EGU would reflect use of a scrubber 

achieving 95% scrubber control efficiency or 0.15 pounds per million Btu (lb/MMBtu). Id. At 
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82225–26. And for NOx, EPA assumed that BART controls at an EGU would achieve from 0.10 

to 0.62 lb/MMBtu, based on coal type and boiler configuration. Id. at 82226.

However, these presumptive BART limits are outdated. Appropriate BART controls would 

achieve far lower emissions rates than presumptive BART. As EPA Region 6 has explained, 

BART generally requires greater emission controls than presumptive BART because “[c]ontrols 

achieving more than the SO2 and NOx presumptive limits are available.” 76 Fed. Reg. 64186, 

64203 (Oct. 17, 2011). Specifically, Region 6 noted that existing EGUs with dry and wet 

scrubbers achieve SO2 rates as low as 0.06 lb/MMBtu, and existing SCR controls can achieve 

NOx rates as low as 0.04 lb/MMBtu, which are far below the presumptive BART limits used by 

EPA here. Id. EPA’s use of presumptive BART as a shortcut in its “better than BART” modeling 

underestimates the emissions reductions from BART controls and the resulting visibility benefits 

of BART at Class I areas.

EPA should have conducted actual EGU-specific BART determinations to serve as the basis for 

its “better than BART” modeling. Only then could EPA ensure that CSAPR is better than BART, 

as the RHR requires. See 40 C.F.R. § 51.308(e)(2) & (e)(3). There is no legally defensible basis 

for EPA to use a shortcut that significantly underestimates the visibility benefits of BART, as 

EPA’s presumptive BART approach does here.

EPA Response: 

The EPA continues to believe that assuming application of presumptive limits over a broad 

region is a reasonable and appropriate method for estimating the emissions reductions from 

application of BART. EPA disagrees that it is necessary to conduct an EGU-specific analysis for 

each BART-eligible EGU. Such an analysis is not feasible or necessary, and even if conducted 

would produce results that would be uncertain and speculative. 

7. Need for Correction of EPA Assumptions for Gerald Gentleman Unit 2

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA Must Model the Visibility Improvement Expected By Applying BART at Gerald 

Gentleman Unit 2 in Nebraska 

EPA acknowledged that it inadvertently omitted Gerald Gentleman Unit 2 from the inventory of 

BART-eligible units under the Nationwide BART emissions scenario. See TSD at 10 n.9. As a 

result, instead of applying BART controls at the unit, EPA assumed the unit would continue 

emitting at its current, uncontrolled SO2 emission rate. Had EPA applied BART SO2 controls at 

this unit, EPA itself estimated that the SO2 emissions for Nebraska would be about 12,000 tons 

lower under the “Nationwide BART.” Id. Inexplicably EPA did not expect this omission to 

change the outcome of its analysis even though emissions from Gerald Gentleman affect 

visibility at Badlands National Park [FN 43] and Wind Cave National Park, [FN 44] parks where 

Table 1 above shows that BART is outperforming CSAPR in visibility improvement. With an 

additional 12,000 tons of SO2 reductions, it is likely that the differences between CSAPR and 

BART at Badlands and Wind Cave National Parks would be even more pronounced, potentially 

changing whether CSAPR is better than BART in Nebraska. See Section VII.A, supra. For 

example, with the 12,000 ton reduction of SO2, EPA’s estimate of the emissions in Nebraska 

under the Nationwide BART scenario would have been 36% lower than modeled in the rule. [FN 
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45] Likewise, with these reductions, the SO2 emissions in Nationwide BART scenario for 

Nebraska would have been 71% lower than EPA‘s projected SO2 emissions in the CSAPR + 

BART-elsewhere scenario. [FN 46]

Moreover, if EPA had applied NOx controls to Gerald Gentleman Unit 2, Nebraska‘s NOx 

emissions would be at least 3,100 tons per year less (reflective of the NOx emission reductions 

expected at presumptive NOx BART rate of 0.23 lb/MMBtu for the wall-fired, dry bottom boiler 

that burns subbituminous coal) and more likely 7,700 tons less (reflective of application of SCR 

to achieve a NOx rate of 0.05 lb/MMBtu 0.05 lb/MMBtu). Under either scenario, NOx emissions 

for Nebraska would be well below the NOx emission projections in the CSPAR + BARTelsewhere scenario, making it likely that in Nebraska CSAPR is not better than BART. EPA must 

revise its modeling to account for reductions in emissions at Gerald Gentleman.

[FN 43] See Table 10.3 of the Nebraska Department of Environmental Quality State Implementation Plan for 

Regional Haze and Best Available Retrofit Technology (BART), June 30, 2011, at 40, available at 

http://www.deq.state.ne.us/AirDivis.nsf/Pages/Haze. Specifically, the 98th percentile visibility contribution from 

Gerald Gentleman Station at Badlands National Park ranged from 2.828 to 3.121 deciviews. Id. 

[FN 44] Id. at 62.

[FN 45] This was determined by subtracting 12,000 tons from the Nationwide BART SO2 projection for Nebraska 

of 32.9 thousand tons of SO2 in Table 2-4 of the TSD. 

[FN 46] This was determined by comparing a revised projection for Nebraska sources under BART of 20,900 tons 

(i.e., 32,900 tons – 12,000 tons) to EPA‘s projected SO2 emissions under CSAPR of 71,200 tons in Table 2-4 of the 

TSD. 

EPA Response: 

The EPA disagrees that this emissions discrepancy, which represents less than 0.5 percent of the 

regional emissions, would require a complete re-analysis. It is reasonable to conclude that, given 

the substantial emissions and air quality difference between the results in the two scenarios, that 

this discrepancy would not change the EPA’s finding.

8. Incorrect Application of EPA’s Presumptive Limits

Commenter: Kathyrn M. Amirpashaie/Sierra Club

Comment:

EPA Arbitrarily Did Not Follow Its Own Method of Applying Presumptive BART 

Putting aside the problem that it is arbitrary and unlawful to rely on presumptive BART, which 

in itself fatally undermines EPA‘s analysis, EPA failed even to properly apply presumptive 

BART at many BART-eligible units in the CSAPR states. In these instances, EPA modeled 

emissions limits that were far greater than the already overestimated presumptive BART values. 

This failure to properly apply presumptive BART calls into question the accuracy of EPA‘s 

modeling and renders its analysis and “better than BART” conclusion arbitrary. Moreover, a 

review of the modeling assumptions that EPA actually used demonstrates that CSAPR is 

wrongly projected to achieve greater reductions at BART-eligible power plants than imposition 

of properly calculated presumptive BART limits. 

In the preamble for the proposed rule and the accompanying Technical Support Document, EPA 

purports to apply, with respect to EGUs with scrubbers, a presumptive SO2 BART limit that 

reflects either the emissions limit actually achieved if the scrubber operated at 95% efficiency or 
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0.15 lbs/MMBtu. If the scrubber was operating at 95% or higher efficiency, EPA said it relied on 

the actual emission rate achieved, even if greater than 0.15 lbs/MMBtu. Conversely, if the 

scrubbed achieved an emission rate of 0.15 lbs/MMBtu or lower, that rate was used even if the 

scrubber was less than 95% efficient. For BART-eligible units operating without a scrubber, 

EPA stated that it would apply a presumptive BART limit that reflected 95% control based on 

installation of a highly efficient scrubber. See 76 Fed. Reg. at 82225-26; TSD at 4-5. 

At the national level, examples of EPA‘s failure to properly and consistently model presumptive 

BART were selected by identifying all BART-eligible units where the SO2 emission rate 

modeled in EPA’s “Nationwide BART” scenario was greater than 0.30 lb/MMBtu (i.e. double 

the presumptive BART floor) and where the historic emission rate, as reported in Clean Air 

Markets Database (CAMD) for 2010 or 2011, was less than the emission rate modeled.

This provides a subset of the most egregious instances of EPA‘s failure to apply presumptive 

BART uniformly. Other examples exist throughout the model. 

As set forth in greater detail in the accompanying Tables 2-1 to 2-4, EPA failed to properly 

calculate presumptive BART at a number of units that include scrubbers. For example, at the 

following scrubbed units that are achieving 95% efficiency, EPA failed to model the actual SO2 

emission rate.

50The SO2 emission rate used in the Nationwide BART was calculated from the data in EPA‘s National BART 2014 

spreadsheet by dividing the Total SO2 Emissions (MTons) by the Total Fuel Use (TBtu) and converting to 

lb/MMBtu. See EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html. 51The tons of SO2 modeled in the Nationwide BART scenario are reported in EPA‘s National BART 2014 

spreadsheet, available at http://www.epa.gov/visibility/actions.html. 52The 2010 SO2 emission rate was calculated from the data reported on CAMD by dividing the Total SO2 

Emissions by the Total Fuel Use and converting to lb/MMBtu. 2010 data was used for each unit in the chart except 

for Kenneth C Coleman C3, as described in more detail in footnote 54, infra. 53For units operating a scrubber at 95% efficiency, the properly calculated presumptive BART was determined, as 

EPA purported to do, by applying the actual emission rate to the heat input assumed in EPA‘s Nationwide BART 

modeling scenario. 
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54 For Kenneth C Coleman C3, the emission rate was calculated using 2011 data. Using 2010 annual coal feed, coal 

heat content and coal sulfur content reported in EIA Form-923 along with AP-42 emission factor [(38 *S lb SO2/ton 

of coal) * (tons of coal) * (2000 lb/ton)], where S = fuel sulfur content, for wall-fired boiler firing bituminous coal, 

annual uncontrolled 2010 SO2 emissions were calculated to be 27,347 tons SO2 with an emission factor of 4.67 lb 

SO2/MMBtu. EPA CAMD reported annual SO2 emissions of 2,607 tons SO2 at an emission rate of .43 lb 

SO2/MMBtu which represents a RE of 90.5% [(27347-2607)/27347)]. If the RE had been 95%, actual reported 

emissions would have been 1,367 tons SO2 [(1-.95)*27347] and an emission rate of 0.23 lb SO2/MMBtu. The 2011 

reported emission rate for Kenneth Coleman C3 was 0.26 lb SO2/MMBtu which closely approximates operation 

with a 95% SO2 RE. Although emissions estimates made using AP-42 emission factors have be prone to some error, 

if the error in the AP-42 estimate were a 10% low bias, and actual emissions were 30,082 tons, then an emission of 

2,607 tons would be yielded by 91.3% RE. In either case, Kenneth Coleman C3 did not achieve 95% RE in 2010. 

Likewise, for the following scrubbed unit, which is achieving less than 95% efficiency, EPA 

failed to model an emission rate that reflected the actual emission limit, which was less than 0.15 

lbs/MMBtu. As further support for the argument that presumptive BART does not reflect best 

available controls, the limit applied as presumptive BART, 0.30 lbs/MMBtu, exceeds actual 

historic emissions.

55 The SO2 emission rate used in the Nationwide BART was calculated from the data in EPA‘s National BART 

2014 spreadsheet by dividing the Total SO2 Emissions (MTons) by the Total Fuel Use (TBtu) and converting to 

lb/MMBtu. See EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html. 56 The tons of SO2 modeled in the Nationwide BART scenario are reported in EPA’s “National BART 2014 Unit 

Specific Result” spreadsheet, available at http://www.epa.gov/visibility/actions.html. 

57 The 2010 SO2 emission rate was calculated from the data reported on CAMD by dividing the Total SO2 

Emissions by the Total Fuel Use and converting to lb/MMBtu. 58 For the scrubbed unit that is less than 95% efficient, but that is achieving an emission rate less than 0.15 

lb/MMBtu, the properly calculated presumptive BART was determined, as EPA purported to do, by applying the 

actual emission rate to the heat input assumed in EPA‘s Nationwide BART modeling scenario. 

Finally, at the following non-scrubbed units in the CSAPR states, EPA applied emissions limits 

for SO2 that are greater than would be achieved by applying a scrubber with 95% efficiency. Not 

only do the modeled BART emissions limits depart from the promised presumptive BART 

values, the modeled BART emission limits exceed actual historic emissions rates for either 2010 

as deduced from reported emissions and heat input in CAMD. Likewise, the emissions limits 

EPA applied far exceed the limits that would be obtained if the source was required to use a 

highly effective scrubber, achieving 99% reduction efficiency. See Section VII.C.2, supra.
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59 From EPA‘s CSAPR+BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html. 60 From EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html. 61Properly calculated presumptive BART is described for each type of unit as above, scrubbed units with a reduction 

efficiency of 95% or greater (see footnote 53, supra), scrubbed units with a reduction efficiency of less than 95% yet 

achieving an emission rate less than 0.15 lb/MMBtu (see footnote 58, supra), or unscrubbed units (see footnote 61, 

supra). 62 For the unscrubbed units, projected BART is calculated by applying a scrubber achieving 99% reduction 

efficiency. See Section VII.C.2 & n.42 supra. For the scrubbed units, projected BART conservatively assumes the 

historic achieved emission rate as applied to the heat input EPA assumed in the Nationwide BART scenario. Thus, it 

is the same as the “Properly Calculated Presumptive BART” for the scrubbed units, as described in footnotes 53 & 

58, supra. 
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64 From EPA‘s CSAPR+BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html. 65 From EPA‘s National BART 2014 spreadsheet, available at http://www.epa.gov/visibility/actions.html. 66 Properly calculated presumptive BART is described for each type of unit as above, scrubbed units with a reduction 

efficiency of 95% or greater (see footnote 53, supra), scrubbed units with a reduction efficiency of less than 95% yet 

achieving an emission rate less than 0.15 lb/MMBtu (see footnote 58, supra), or unscrubbed units (see footnote 61, 

supra). 67 For the unscrubbed units, projected BART is calculated as described in footnote 62, supra, by applying a scrubber 

achieving 99% reduction efficiency. See Section VII.C.2 & n.42 supra. For the scrubbed units, projected BART 

conservatively assumes the historic achieved emission rate as applied to the heat input EPA assumed in the 

Nationwide BART scenario. Thus, it is the same as the “Properly Calculated Presumptive BART” for the scrubbed 

units, as described in footnotes 53 & 58, supra. 68 EPA has classified this unit in the CSAPR + BART spreadsheet as “Coal Withdrawn as Uneconomic” and 

included no heat input or SO2 emissions. See EPA‘s CSAPR+BART 2014 spreadsheet, available at 

http://www.epa.gov/visibility/actions.html. 

The consequences of EPA’s failure to properly apply SO2 presumptive BART become particularly 

apparent when EPA’s conclusion that CSAPR is “better than BART” is tested within individual 
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states, as seen in particular in Minnesota, where commenters have had the opportunity to 

undertake in depth analysis. As explained in the Technical Support Attachment to Comments of 

Conservation Organizations on the Minnesota Regional Haze SIP, EPA modeled SO2 emissions 

limits higher than presumptive BART in several instances. For example, EPA modeled Austin 

Northeast at 1.05 lb/MMBtu, Hoot Lake Unit 3 at 1.49 lb/MMBtu, and Silver Bay Boiler 2 at 

1.00 lb/MMBtu, but because none of these units have scrubbers, EPA should have assumed SO2 

emission rates reflecting 95% control. If EPA‘s assumed SO2 emission rates for these three 

EGUs reflected 95% control, then the uncontrolled SO2 emission rates of the coal would range 

from 20 to 30 lb/MMBtu which is not credible. These units all burn only subbituminous coal,[FN 

69] which is typically low sulfur coal. In fact, the EPA‘s assumed emission rates for Hoot Lake 

Unit 3 and Silver Bay Boiler 2 not only reflect uncontrolled emissions but also are significantly 

higher than actual historical emission rates. Over 2003-2011, the highest annual average SO2 

emission rate at Hoot Lake Unit 3 was only 0.71 lb/MMBtu according to CAMD, but EPA 

modeled the unit based on an SO2 emission rate of 1.49 lb/MMBtu. Had EPA truly followed its 

purported methodology in its Nationwide BART emissions projections, it should have assumed 

95% reductions, which would have resulted in much lower emission rates than EPA actually 

used in its emission projections. 

In addition, EPA assumed an SO2 rate for the unscrubbed Taconite Harbor Unit 3 of 0.22 

lb/MMBtu. [FN 70] At maximum, the unit had an annual average SO2 rate of 0.67 lb/MMBtu 

over the last nine years. [FN 71] Thus, if EPA were to apply presumptive BART limits to 

Taconite Harbor Unit 3, it should have assumed an SO2 emission rate reflecting 95% control at 

that unit. Instead, EPA inexplicably assumed an SO2 emission rate of 0.22 lb/MMBtu. For Clay 

Boswell Unit 4, EPA assumed an SO2 emission rate of 0.15 lb/MMBtu. However, Boswell Unit 4 

has a wet scrubber, as indicated in EPA‘s National BART 2014 spreadsheet, and CAMD data 

shows that the unit is actually achieving lower SO2 emission rates than 0.15 lb/MMBtu. In 2010-

2011, the annual average SO2 emission rate at the unit ranged from 0.10 to 0.05 lb/MMBtu. 

Nevertheless, EPA assumed an SO2 BART rate of 0.15 lb/MMBtu, which was inconsistent with 

what EPA purported to assume (i.e., presumptive BART levels unless actual emissions were 

lower).

Likewise, a review of EPA‘s assumed SO2 emission rates in its 2014 Nationwide BART 

emissions scenario for BART-eligible units in Missouri shows that EPA did not consistently 

apply this methodology to all BART-eligible units. Missouri has 21 BART-eligible EGUs, and 

all but one of the units have no SO2 scrubbers, according to CAMD. Because these units were 

uncontrolled for SO2 (Iatan Unit 1 was uncontrolled through 2007), data from CAMD from 2003 

to 2010 will reveal the maximum historical uncontrolled SO2 emission rate. Using an 

uncontrolled emission rate equal to the high annual emission rate from 2003-2010, it is possible 

to calculate the approximate SO2 removal efficiency that EPA should have assumed in its 

Nationwide BART 2014 scenario, as shown below. 

For the fifteen units in Missouri with projected SO2 emission rates of 0.15 lb/MMBtu or less, EPA 

assumed SO2 rates in the Nationwide BART 2014 scenario ranging from 0.06 lb/MMBtu to 0.15 

lb/MMBtu.[FN 72] However, the SO2 removal that these projected emission rates reflected ranged 

from a low of 76% to a high of 96%, with the average SO2 removal efficiency being 88%. Thus, if 

EPA assumed an uncontrolled emission rate equal to the high annual emission rate from 2003-2010, 
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EPA did not assume SO2 rates in the BART scenario of 95% control at units with no scrubbers in 

Missouri. 

For three other units in Missouri, EPA’s projected SO2 emissions under the Nationwide BART 

scenario only reflected 5% to 48% SO2 removal from historical maximum uncontrolled SO2 

emission rates. And there are three units for which EPA’s SO2 emission rates with BART applied 

no SO2 controls and instead reflected increases in SO2 emission rates of 17% to 70%, as seen in 

the table below.

[FN 69] Footnote 69: See EPA‘s National BART 2014 Spreadsheet, Columns regarding Total Subbituminous Fuel 

Use and Total Bituminous Fuel Use. 

[FN 70] The Minnesota Pollution Control Agency (“MPCA”) has adopted as BART the requirement to install 

Rotating Opposed Fired Air (“ROFA”)/Rotomix system that includes Furnace Sorbent Injection for SO2 control. 

See MPCA BART Determination for Minnesota Power Taconite Harbor Unit 3 in Appendix 9.4 of the Minnesota 

Regional Haze Plan at 910. However, it does not appear that these controls have been installed yet at Unit 3. CAMD 

does not indicate any scrubber or other SO2 controls installed at Taconite Harbor Unit 3, nor have SO2 rates 

declined in recent years to indicate application of SO2 controls.

[FN 71] Based on a review of SO2 emission rates from CAMD for 2003-2011. 

FN 72] The assumed SO2 emission rate was calculated from the data in EPA‘s National BART 2014 spreadsheet by 

dividing the Total SO2 Emissions (MTons) by the Total Fuel Use (TBtu) and converting to lb/MMBtu. 
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As shown by the above table, EPA did not always project SO2 emissions under BART for 

unscrubbed units based on 95% SO2 removal in Missouri. EPA did not even assume that 

scrubbers would be installed at several unscrubbed BART-eligible units in its SO2 BART 

emission projections. 

In addition, at Fair Station in Iowa, if EPA assumed an uncontrolled emission rate equal to the 

high annual emission rate from 2003-2010, EPA assumed an SO2 emission rate of 0.95 

lb/MMBtu in its Nationwide BART scenario, which reflects only 82% SO2 removal from the 

unit‘s maximum annual average uncontrolled SO2 rate from 2003 to 2010. Likewise, based on 

the same assumptions, for Big Cajun 2 in Louisiana, both units burn the same low sulfur coal, 

have no scrubbers, and emit SO2 at a maximum uncontrolled rate of 0.77 lb/MMBtu. Yet, in its 

Nationwide BART scenario, EPA projected SO2 emissions for Big Cajun 2 Unit 1 at 0.08 

lb/MMBtu and for Big Cajun 2 Unit 2 at 0.58 lb/MMBtu, reflecting 89% control for Unit 1 and 

only 25% control for Unit 2. Finally, in Kentucky, EPA assumed Robert Reid Unit 1 would emit 

SO2 at a rate of 4.28 lb/MMBtu in the Nationwide BART scenario. This emission rate reflects 
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historical uncontrolled SO2 emission rates at the unit from 2003 to 2010. Thus, for this unit, EPA 

assumed no control equals BART. 

As all of the above examples make clear, EPA‘s projections of SO2 emissions for BART-eligible 

sources did not reflect the assumptions that EPA claimed to have made in its Technical Support 

Document. 

EPA‘s treatment of Minnesota sources in its alternatives analysis is also illustrative of EPA‘s 

failure to properly apply presumptive NOx BART. The presumptive NOx BART limits vary with 

coal type and boiler configuration. If a source had existing NOx controls, EPA assumed those 

controls would be operated year round. If those controls did not meet presumptive BART limits, 

EPA would assume installation of post-combustion controls, such as selective catalytic reduction 

(SCR) or selective non-catalytic reduction (SNCR) that would meet the BART guidelines. The 

limits are as follows (see TSD at 5):

Given this purported methodology for projecting NOx emissions under BART, EPA should have 

assumed installation of an SCR at Sherburne County Units 1 and 2 in Minnesota. These units 

have already installed combustion controls, but the units have failed to meet the 0.15 lb/MMBtu 

presumptive BART limits for tangential-fired boilers burning subbituminous coal. According to 

actual annual emissions data from CAMD, the units have averaged 0.18 lb/MMBtu NOx rates on 

an annual basis in 2009-2011. In instances where installed combustion controls do not meet

presumptive BART limits, EPA represented that it would assume post-combustion controls (SCR 

or SNCR) would be installed.[FN 73] However, EPA did not assume the Sherburne County 

Units 1 and 2 would be retrofitted with post-combustion controls. Had EPA projected BART 

emissions in the manner it purported, it should have projected NOx emissions for Sherburne 

County Units 1 and 2 at 0.05 lb/MMBtu. [FN 74] 

Similarly, Northshore Mining‘s Silver Bay Boiler 2 was not projected to meet the presumptive 

NOx BART limit of 0.23 lb/MMBtu for wall-fired subbituminous coal-fired boilers with 

combustion controls. Instead, MPCA found the unit could only meet a NOx rate of 0.40 

lb/MMBtu with combustion controls. [FN 75] Thus, according to EPA‘s methodology, EPA 

should have assumed installation of post-combustion NOx controls for this unit, but EPA did not 

do so. Given that the Silver Bay power plant causes more visibility impairment to the Boundary 

Waters Class I area than any other coal-fired power plant in Minnesota76 and given that 

installation of SCR would be cost effective at the unit, a proper NOx BART determination for 

the unit would have resulted in a NOx BART limit of 0.05 lb/MMBtu. 
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By improperly applying presumptive NOx BART limits at these units, EPA‘s Nationwide BART 

scenario includes 5,385 tons more NOx emissions in Minnesota than it should. Correcting for 

presumptive BART at these units would result in the Nationwide BART scenario producing 

7,294 fewer tons of NOx from these plants than the CSAPR scenario. 

In sum, failure to apply presumptive BART in the manner stated in the preamble and the 

Technical Support Document is both arbitrary and consequential, fatally undermining the 

credibility of EPA’s analysis. By failing to apply presumptive BART, which is too weak in any 

case, with any uniformity, EPA arbitrarily discounted the emissions achieved in the BART 

scenarios.

[FN 73] Footnote 73See TSD at 5.

[FN 74] Footnote 74 See Letter from Soug Aburano, U.S. EPA Region 5 to John M. Seitz, Chief, Minnesota 

Pollution Control Agency at 2 (June 6, 2011) (finding that SCR could be applied at Xcel Energy‘s Sherburne County 

facility) [Attachment 6]; See also National Park Service‘s October 3, 2009 Comments Entitled “Xcel Energy‘s 

Sherburne County Generating Station (SHERCO) MPCA 5/19/09 report and Subsequent Response to Comments” in 

Appendix 2.5 of Minnesota Regional Haze SIP at 377.

[FN 75] Footnote 75 See MPCA BART Determination for Northshore Mining Silver Bay Power Boiler 2, in 

Appendix 9.4 of Minnesota Regional Haze plan at 848. 

EPA Response: 

EPA disagrees with this commenter’s assertion that we misapplied the presumptive BART 

limits. Table 1 below tabulates the units included in Tables 4, 5, 6, 7, 8 and additional units in 

Minnesota included in the Earthjustice comments. These units are all BART-affected (except one 

that is identified as BART-unaffected) and appropriately modeled in the respective scenarios, 

except one unit that was not modeled with the required BART limits due to modeling software

limitations. 

Most of the units are under 100 MW and modeled as BART unaffected for SO2. See RTC 

section VI.D above for a discussion of why EPA’s presumptive limits have different assumptions 

for units smaller than 100 MW. 

Other units achieve an emission rate of 0.15 lb/MMBtu (or less) or 95% (or higher) removal 

efficiency, complying with BART presumptive limits. Among those, three units are projected to 

be operating with existing scrubbers with 95% removal efficiency and using coal with higher 

sulfur content than historic values may suggest. The commenter makes calculations and 

comparisons based on the historic emissions in 2010 which is a function of the sulfur content of 

the fuel used and the level of dispatch occurred in 2010. In 2015, in the Nationwide BART run 

we project these units dispatching with a higher sulfur content coal.

One unit is projected to retire and one unit is identified as BART unaffected. One unit 

(Dickerson 3) was not fully modeled as BART affected due to modeling software limitations.

EPA's modeling software was not able to impose BART requirements fully on this unit. This unit 

has an existing scrubber that would operate with 95% removal efficiency. Our modeling assumed 

a "partial retrofit" operation, meaning only a portion of the emissions were subjected to 95% 

removal, and remainder of the emissions were assumed to be by-passed, resulting in an overall 

removal efficiency of 73.7% for this unit (Dickerson Unit 3). If this unit was modeled correctly 
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achieving 95% removal efficiency for the all the emissions from the unit there would be an 

additional 4,608 tons of emission reductions in this unit in the BART-everywhere scenario.
Page 75 of 149

Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity 

(MW)

Modeled SO2

Content of 

Coal 

(lbs/MMBtu)

Modeled 

SO2

Removal 

Efficiency 

(%)

Modeled SO2

Rate 

(lbs/MMBtu)

Notes

Units from 

Earthjustice Table 4

Kenneth C Coleman 

(KY) C3 Yes 155 5.91 95.0% 0.30 Burns high sulfur coal, achieves 95% removal (1)

Dickerson (MD) 3 Yes 182 3.45 73.7% 0.91 Not modeled as BART affected due to 

majority rule (2)

Cumberland (TN) 1 Wet 1232 6.15 95.0% 0.31 Burns high sulfur coal, achieves 95% 

removal (1)

Cumberland (TN) 2 Wet 1233 6.15 95.0% 0.31 Burns high sulfur coal, achieves 95% 

removal (1)

Units from 

Earthjustice Table 5

Shiras (MI) 3 Dry 41 1.49 80.0% 0.30 BART unaffected, began construction 

in 1981, came online in 1983

Units from 

Earthjustice Table 6

Charles R Lowman 

(AL) 1 Yes 86 2.46 0.0% 2.46 Less than 100 MW, modeled as BART unaffected

Whitewater Valley (IN) 2 63 6.15 0.0% 6.15 Less than 100 MW, modeled as BART 

unaffected

Ames Elec. Servs. (IA) 7 33 0.94 0.0% 0.94 Less than 100 MW, modeled as BART 

unaffected

Muscatine Plant #1 

(IA) 8 35 0.94 0.0% 0.94 Less than 100 MW, modeled as BART unaffected

Streeter Station (IA) 7 36 1.01 1.4% 1.00 Less than 100 MW, modeled as BART 

unaffected

Quindaro (KS) 1 72 0.94 0.0% 0.94 Less than 100 MW, modeled as BART 

unaffected

Eckert Station (MI) 4 69 0.94 0.0% 0.94 Less than 100 MW, modeled as BART 

unaffected

Eckert Station (MI) 5 69 0.94 0.0% 0.94 Less than 100 MW, modeled as BART 
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Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity 

(MW)

Modeled SO2

Content of 

Coal 

(lbs/MMBtu)

Modeled 

SO2

Removal 

Efficiency 

(%)

Modeled SO2

Rate 

(lbs/MMBtu)

Notes

unaffected

Eckert Station (MI) 6 67 0.94 0.0% 0.94 Less than 100 MW, modeled as BART 

unaffected

Presque Isle (MI) 5 88 1.05 0.0% 1.05 Less than 100 MW, modeled as BART 

unaffected

Presque Isle (MI) 6 88 1.05 0.0% 1.05 Less than 100 MW, modeled as BART 

unaffected

Presque Isle (MI) 7 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART 

unaffected

Presque Isle (MI) 8 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART 

unaffected

Presque Isle (MI) 9 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART 

unaffected

Hoot Lake (MN) 3 84 1.49 0.0% 1.49 Less than 100 MW, modeled as BART 

unaffected

Silver Bay (MN) 2 69 0.94 0.0% 1.00 Less than 100 MW, modeled as BART 

unaffected

James River Power 

Station (MO) 4 56 0.94 0.0% 0.94 Less than 100 MW, modeled as BART unaffected

James River Power 

Station (MO) 5 97 0.94 0.0% 0.94 Less than 100 MW, modeled as BART unaffected

Lake Road (MO) 6 97 0.95 0.9% 0.94 Less than 100 MW, modeled as BART 

unaffected

Dolphus M Grainger 

(SC) 1 85 4.80 0.0% 4.80 Less than 100 MW, modeled as BART unaffected

Dolphus M Grainger 

(SC) 2 85 5.43 0.0% 5.43 Less than 100 MW, modeled as BART unaffected

Units from 

Earthjustice Table 7

Charles R Lowman 

(AL) 1 Yes 86 2.46 0.0% 2.46 Less than 100 MW, modeled as BART unaffected

Whitewater Valley (IN) 2 63 6.15 0.0% 6.15 Less than 100 MW, modeled as BART 
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Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity 

(MW)

Modeled SO2

Content of 

Coal 

(lbs/MMBtu)

Modeled 

SO2

Removal 

Efficiency 

(%)

Modeled SO2

Rate 

(lbs/MMBtu)

Notes

unaffected

Ames Electric Services 

Power Plant (IA) 7 33 0.94 0.0% 0.94 Less than 100 MW, modeled as BART unaffected

Muscatine Plant #1 

(IA) 8 35 0.94 0.0% 0.94 Less than 100 MW, modeled as BART unaffected

Streeter Station (IA) 7 36 1.01 1.4% 1.00 Less than 100 MW, modeled as BART 

unaffected

Quindaro (IA) 1 72 0.94 0.0% 0.94 Less than 100 MW, modeled as BART 

unaffected

Kenneth C Coleman 

(KY) C3 Yes 155 5.91 95.0% 0.30 Burns high sulfur coal, achieves 95% removal (1)

Dickerson (MD) 3 Yes 182 3.45 73.7% 0.91 Not modeled as BART affected due to 

majority rule (2)

Eckert Station (MI) 4 69 0.94 0.0% 0.94 Less than 100 MW, modeled as BART 

unaffected

Eckert Station (MI) 5 69 0.94 0.0% 0.94 Less than 100 MW, modeled as BART 

unaffected

Eckert Station (MI) 6 67 0.94 0.0% 0.94 Less than 100 MW, modeled as BART 

unaffected

Presque Isle (MI) 5 88 1.05 0.0% 1.05 Less than 100 MW, modeled as BART 

unaffected

Presque Isle (MI) 6 Yes 88 1.05 0.0% 1.05 Less than 100 MW, modeled as BART 

unaffected

Presque Isle (MI) 7 Yes 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART 

unaffected

Presque Isle (MI) 8 Yes 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART 

unaffected

Presque Isle (MI) 9 Yes 85 0.62 0.0% 0.62 Less than 100 MW, modeled as BART 

unaffected

Shiras (MI) 3 Dry 41 1.49 80.0% 0.30 BART unaffected, began construction 

in 1981, came online in 1983

Hoot Lake (MN) 3 Yes 84 1.49 0.0% 1.49 Less than 100 MW, modeled as BART 
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Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity 

(MW)

Modeled SO2

Content of 

Coal 

(lbs/MMBtu)

Modeled 

SO2

Removal 

Efficiency 

(%)

Modeled SO2

Rate 

(lbs/MMBtu)

Notes

unaffected

Silver Bay (MN) 2 Yes 69 0.94 0.0% 1.00 Less than 100 MW, modeled as BART 

unaffected

James River Power 

Station (MO) 4 Yes 56 0.94 0.0% 0.94 Less than 100 MW, modeled as BART unaffected

James River Power 

Station (MO) 5 Yes 97 0.94 0.0% 0.94 Less than 100 MW, modeled as BART unaffected

Lake Road (MO) 6 Yes 97 0.95 0.9% 0.94 Less than 100 MW, modeled as BART 

unaffected

Dolphus M Grainger 

(SC) 1 Yes 85 4.80 0.0% 4.80 Less than 100 MW, modeled as BART unaffected

Dolphus M Grainger 

(SC) 2 Yes 85 5.43 0.0% 5.43 Less than 100 MW, modeled as BART unaffected

Cumberland (TN) 1 Wet Yes 1232 6.15 95.0% 0.31 Burns high sulfur coal but achieves 

95% removal (1)

Cumberland (TN) 2 Wet Yes 1233 6.15 95.0% 0.31 Burns high sulfur coal but achieves 

95% removal (1)

Units from 

Earthjustice Table 8

Iatan 1 Wet 651 0.94 93.6% 0.06 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Asbury 1 213 0.84 91.5% 0.07 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Thomas Hill MB1 175 0.94 91.5% 0.08 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Montrose 3 176 0.94 91.5% 0.08 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Labadie 1 597 0.94 91.5% 0.08 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Labadie 2 594 0.94 91.5% 0.08 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Labadie 3 612 0.94 91.5% 0.08 Achieves equal or less than 0.15 
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Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity 

(MW)

Modeled SO2

Content of 

Coal 

(lbs/MMBtu)

Modeled 

SO2

Removal 

Efficiency 

(%)

Modeled SO2

Rate 

(lbs/MMBtu)

Notes

lb/MMBtu rate requirement

Labadie 4 612 0.94 91.5% 0.08 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

New Madrid 2 580 0.94 91.5% 0.08 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

New Madrid 1 580 0.94 91.5% 0.08 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Rush Island 2 604 0.94 91.5% 0.08 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Rush Island 1 604 0.94 91.5% 0.08 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Sioux 1 Wet Yes 497 2.55 95.4% 0.12 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Sioux 2 Yes 497 2.55 95.4% 0.12 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Sikeston Power Station 1 Wet 233 0.61 75.5% 0.15 Achieves equal or less than 0.15 

lb/MMBtu rate requirement

Sibley 3 401 N/A N/A N/A Unit retired

Sibley 2 54 0.88 0.7% 0.88 Less than 100 MW, modeled as BART 

unaffected

James River Power 

Station 5 97 0.94 0.0% 0.94 Less than 100 MW, modeled as BART unaffected

James River Power 

Station 4 56 0.94 0.0% 0.94 Less than 100 MW, modeled as BART unaffected

Lake Road 6 97 0.95 0.9% 0.94 Less than 100 MW, modeled as BART 

unaffected

Blue Valley 3 51 2.68 0.0% 2.68 Less than 100 MW, modeled as BART 

unaffected

MN Units

Allen S King 610 87.2% 0.08 Achieves equal or less than 0.15 lb/MMBtu rate requirement
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Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity 

(MW)

Modeled SO2

Content of 

Coal 

(lbs/MMBtu)

Modeled 

SO2

Removal 

Efficiency 

(%)

Modeled SO2

Rate 

(lbs/MMBtu)

Notes

Austin Northeast 29 0.0% 1.05 Less than 100 MW, modeled as BART unaffected

Clay Boswell 351 90.0% 0.06 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Clay Boswell 525 83.2% 0.15 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Hibbing 10 0.0% 1.49 Less than 100 MW, modeled as BART unaffected

Hibbing 10 0.0% 1.49 Less than 100 MW, modeled as BART unaffected

Hibbing 10 0.0% 1.49 Less than 100 MW, modeled as BART unaffected

Hoot Lake 84 0.0% 1.49 Less than 100 MW, modeled as BART unaffected

Sherburne County 762 96.0% 0.06 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Sherburne County 752 96.0% 0.06 Achieves equal or less than 0.15 lb/MMBtu rate requirement

Silver Bay Power 69 0.0% 1.00 Less than 100 MW, modeled as BART unaffected

Silver Lake 24 1.2% 1.12 Less than 100 MW, modeled as BART unaffected

Silver Lake 59 85.2% 0.17 Less than 100 MW, modeled as BART unaffected

Taconite Harbor 

Energy Center 68 65.0% 0.22 Less than 100 MW, modeled as BART unaffected

(1) Commenters make calculations and comparisons based on the reported emissions in 2010 which is a function of the sulfur content of the fuel used and the 

dispatch occurred in 2010. In 2015, in the Nationwide BART run we project this unit dispatching with a higher S content coal.
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Table 1. IPM Modeling Projection in “Nationwide BART” Control Case (2014)

Plant Unit FGD Dispatchable Capacity 

(MW)

Modeled SO2

Content of 

Coal 

(lbs/MMBtu)

Modeled 

SO2

Removal 

Efficiency 

(%)

Modeled SO2

Rate 

(lbs/MMBtu)

Notes

(2) Due to modeling limitations, EPA's modeling was not able to impose BART requirements fully on this unit. This unit has an existing scrubber that would 

operate with 95% removal efficiency. Our modeling assumed a "partial retrofit" operation, meaning only a portion of the emissions were subjected to 95% 

removal, and remainder of the emissions were assumed to be by-passed, resulting in an overall removal efficiency of 73.7%. If this unit was modeled correctly 

to reflect 95% removal efficiency for the entire unit there would be an additional 4,608 tons of emission reductions in this unit.
Page 75 of 149

9. Averaging Times for BART and CSAPR Are Different

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA Did Not Properly Account For Different Averaging Times under CSAPR and BART When 

Comparing Visibility Impacts 

In failing to consider the different averaging times that are used to establish compliance with CSAPR 

and BART, EPA‘s analysis cannot establish that CSAPR provides greater reasonable progress than 

BART. Under the established reasonable progress test, EPA was required to show that reliance on 

CSAPR in lieu of BART will not cause visibility to degrade at any Class I area on the 20 percent best 

and worst days, and that CSAPR provides an overall improvement in visibility over BART on the 20 

percent best and worst days. 40 C.F.R. § 51.308(e)(3)(i)-(ii). The difference in how emission impacts 

are measured or averaged can significantly affect the outcome of this analysis. 

Visibility impacts are measured based on a twenty-four hour averaging time, whereas BART 

emission limits are set based on 30-day averaging times. The BART Guidelines require 

enforceable emission limits reflecting BART requirements and specify that permits reflecting 

BART limits for EGU‘s must “specify an averaging time of a 30-day rolling average.” See 70 

Fed. Reg. 39104, 39172 (July 6, 2005). Moreover, BART emissions limits must be met on a 

continuous basis. See 42 U.S.C. § 7602(k); CAA § 302(k). In contrast, CSAPR provides for 

averaging of emissions over a year for the annual SO2 and NOx programs, and over a five-month 

period for the ozone season NOx program. Because pollutants are not emitted at a constant rate 

throughout a given day, month, or year, longer averaging times will “smooth out” variations 

including hourly spikes in emissions that impact visibility. Without accounting for the averaging 

times, it is impossible to accurately determine whether CSAPR will provide greater benefits than 

BART on the 20 percent best or worst days. 40 C.F.R. § 51.308(e)(3)(ii). Also, because CSAPR 

has such a long averaging time, EPA has failed to show that its analysis accurately assesses 

whether CSAPR will cause or allow visibility to decline at any Class I area on the 20 percent 

best or worst days. Id. § 51.308(e)(3)(i). For all the foregoing reasons, EPA‘s proposed finding 

that CSAPR provides for greater reasonable progress than BART is arbitrary.

Commenter: Kristin A. Henry, Sierra Club

Comment:

Given its temporal implications, CSAPR, as the proposed BART-alternative, does not ensure 

visibility will not decline at any Class I area in the state, or that visibility will improve in the 

state, per 40 C.F.R. § 51.308(e)(3). Specifically, Indiana cannot rely on CSAPR to reduce 

visibility impairment in Class I areas impacted by pollution from the state because CSAPR does 

not protect against very high short term or seasonal emissions that degrade visibility or ensure 

that adequate emissions reductions will occur at sources responsible for impairing visibility. In 

failing to consider the different averaging times that are used to establish compliance with 

CSAPR and BART, EPA’s analysis cannot establish that CSAPR provides greater reasonable 

progress than BART. Under the established reasonable progress test, EPA was required to show 

that reliance on CSAPR in lieu of BART will not cause visibility to degrade at any Class I area 

on the 20 percent best and worst days, and that CSAPR provides an overall improvement in 

visibility over BART on the 20 percent best and worst days. 40 C.F.R. § 51.308(e)(3)(i)-(ii). The
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difference in how emission impacts are measured or averaged can significantly affect the 

outcome of this analysis. Visibility impacts are measured based on a one-hour averaging time, 

whereas BART emission limits are set based on 30-day averaging times. In contrast, CSAPR 

provides for averaging of emissions over a year for the annual SO2 and NOx programs. Because 

pollutants are not emitted at a constant rate throughout a given day, month, or year, longer 

averaging times will smooth out variations including hourly spikes in emissions that impact 

visibility. It is clearly arbitrary for EPA to assume a source will emit at an hourly rate equivalent 

to the source’s annual CSAPR divided by 8,760 hours per year. Without normalizing the 

averaging times, it is impossible to accurately determine whether CSAPR will provide greater 

benefits than BART on the 20 percent best or worst days. 40 C.F.R. § 51.308(e)(3)(ii). Thus, 

CSAPR is an inappropriate BART-alternative in that it fails to set forth appropriate averaging 

periods to ensure that reasonable progress goals and long-term strategies for achieving the CAA 

and the Haze Rule’s visibility goals are being met.

Thus, since CSAPR, emission allowances are issued for a given year, but sources are under no 

obligation to ration the allowances out over the year. Instead, a source such as Tanner Creek, 

Frank E. Ratts, or Wabash River Generating Station might choose to save its allowances for use 

during the summer ozone period when demand for electricity is at its peak and to idle during the 

rest of the year, failing to reduce emission during the months when Class I areas may be most 

likely to experience the most degradation in visibility. As such, even if CSAPR resulted in 

emission reductions from a source such as Tanner Creek, Frank E. Ratts, or Wabash River 

Generating Station, there is no guarantee that those reductions would help ensure achievement of 

reasonable progress goals at Class I areas impacted by Indiana sources.

EPA Response: 

EPA disagrees with the commenters assertion that differences in averaging time should affect 

our conclusions and finding.

First, as noted by the commenter, our visibility evaluation is done for the 20 percent best and 

worst days. While EPA does, as noted by the commenter, collect IMPROVE samples over a 24-

hour time period, none of the visibility program requirements are based on these 24-hour peaks. 

Both the 20 percent best days and 20 percent worst days represent a relatively long time period, 

that is an average over one-fifth of the year, or 73 days. Because this is a relatively long time 

period, it tends to “smooth out” any variations that would occur over a shorter time period. 

Second, there is no reason to believe that a cap-and-trade program would yield substantial 

variations in the application of emission control strategies. Once an EGU owner establishes its 

strategy for meeting the Transport Rule, there are powerful market incentives for operating those 

controls. For SO2, the strategy might include selection of a coal supplier and control device such 

as an FGD scrubber. If the EGU owner chooses to switch fuels and to operate add-on controls to 

meet their allowances, and to not purchase allowances, there is a continuous market incentive to 

minimize emissions so long as the allowance price is greater than the price of operating controls. 

Because that will clearly be the case for the Transport Rule given its level of stringency, EPA 

finds no reason to believe that there will be substantial variations in operations. 
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Third, the commenter suggests the a 30-day rolling average BART limit could have significantly 

different results than the annual or 5-month cap and trade program requirements. EPA notes that 

a 30-day rolling average represents a relatively long time period that would also tend to smooth 

out the hourly spikes noted by the commenter. 

10. Errors in EPA Models for Nitrate

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA’s Modeling Does Not Include Realistic Nitrate Levels 

EPA’s CSAPR better than BART visibility modeling does not reflect realistic nitrate levels, 

precluding a credible comparison between CSAPR and BART. In response to a data request, 

EPA provided its intermediate modeling results, which revealed a high frequency of near zero 

nitrate levels. See Gebhart Report at 11. This revelation conflicts with real-world measurements 

of atmospheric nitrate concentrations from IMPROVE monitors. See id. EPA‘s failure to produce 

modeling results that accord with real-life atmospheric conditions severely undermines the 

credibility of the agency‘s analysis. See Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 

923 (D.C. Cir. 1998) (“An agency‘s use of a model is arbitrary if that model bears no rational 

relationship to the reality it purports to represent.”) (internal citation omitted). 

EPA Response: 

The model performance was evaluated for the CAMx 2005 base case against measured data at 

various monitoring sites (including IMPROVE sites) across the country. The 12km Eastern 

domain model performance results are documented in the CSPAR final rule modeling TSD 

(Appendix A). The regional model performance, generally showed winter normalized mean 

biases between -20% (under-prediction) and 20% (over-prediction). Looking at more detailed 

results by site shows that in general, CAMx did well at replicating relatively high seasonal 

average measured nitrate concentrations and also predicted low concentrations in areas where 

measured nitrate was low. But in many cases where seasonal average measured nitrate was low 

(< 0.5 ug/m3), the modeled predictions were considerably lower than those measured, 

particularly in the Rockies and the West.

EPA believes that the model performance is acceptable for its intended purpose, in particular 

because the model results were used in a “relative sense”. The model results are used to calculate 

relative response factors “RRFs” which represent the percent change in PM species (and 

visibility) from the model. These RRFs are multiplied by the actual measured PM data at 

IMPROVE sites to get future year projections of visibility and change in visibility. Since the 

actual measured nitrate and sulfate (and other PM components) concentrations are used in the 

calculations, the extinction values are anchored by the measured data. This means for example 

that the contribution of nitrate to the calculated base year extinction is exactly what was 

measured at each IMPROVE site, regardless of whether the model under predicts the observed 

nitrate concentrations. 

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

Because nitrate and sulfate concentrations contribute to overall atmospheric extinction, a core 

component of visibility, the model‘s failure to contain sufficient nitrate concentrations could 
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significantly affect whether the model accurately predicts visibility impacts. Sulfate and nitrate 

typically affect extinction relative to their concentrations in the atmosphere. Thus, in the east 

where there is more sulfate in the atmosphere, sulfate has a greater effect on extinction, whereas 

the relative importance of sulfate extinction diminishes as one approaches the central plains, 

northern plains, and upper Midwest. See Gebhart Report at 11-12. EPA‘s model does not reflect 

this reality, but instead shows an extremely high sulfate to nitrate concentration on the 20% best 

days at Isle Royale National Park in Michigan where one would expect more nitrate 

concentrations, and a higher than normal sulfate to nitrate concentrate at Dolly Sods Wilderness 

in West Virginia on the 20% worst days. Id. at 13-14. 

EPA Response: 

The commenter presents an analysis of sulfate to nitrate ratios that is not meaningful in the 

context of evaluating the model performance. At most Class I areas, the PM components that 

cause visibility impairment are seasonal, with high nitrate concentrations typically found in the 

winter and high sulfate concentrations typically found in the summer. The ratio of sulfate to 

nitrate on the best days and worst days is not a metric that would typically be used to judge 

model performance. It is not surprising that the nitrate levels at Isle Royale on the best days and 

the nitrate levels at Dolly Sods on the worst days are very low. The best days at Isle Royale 

occur when air is blowing into the US from Canada with very low PM concentrations. The worst 

days at Dolly Sods occur in the summer when sulfate is high and nitrate is very low. The more 

important question is whether the model captures the relatively high winter nitrate at Isle Royale 

and the relatively high summer sulfate at Dolly Sods. In this respect, the model performance is 

quite reasonable. The highest nitrate at Isle Royale is observed in the winter. The average 

observed winter nitrate in 2005 at Isle Royale was 1.24 ug/m3 and the average modeled winter 

nitrate was 0.69 ug/m3. The highest observed sulfate at Dolly Sods is observed in the summer. 

The average observed summer sulfate in 2005 at Dolly Sods was 8.62 ug/m3 and the average 

modeled summer sulfate was 7.91 ug/m3. This shows that CAMx is able to capture the seasonal 

differences in observed sulfate and nitrate concentrations. Additional model performance metrics 

for other Class I areas are available in the proposed rule TSD as well as the final rule docket. 

Overall, EPA believes CAMx model performance to be acceptable. 

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

The nitrate levels in the model could be sulfate before converting NOx to nitrate, or an 

overestimation of SO2, which could consume all of the ammonia leaving little left for nitrate 

conversions. Id. at 14. Either deficiency would result in less NOx in the model than in reality, 

which in turn would mask improvements in visibility from NOX reductions that would be 

expected to increase where BART is required. See id. at 15 (explaining that “[w]ith nitrate levels 

at or near zero in USEPA‘s modeling, the NOx emission controls assumed by USEPA probably 

achieve little if any modeled benefit toward improving Class I visibility.”). This failure to 

replicate real life conditions renders the agency‘s modeling analysis arbitrary and precludes EPA 

from using its modeling results to justify reliance on CSAPR in place of BART. See Columbia 

Falls, 139 F.3d at 923. EPA “retains a duty to examine key assumptions as part of its affirmative 

burden of promulgating and explaining a non-arbitrary, noncapricious rule.” Small Refiner Lead 

Phase-Down Task Force v. EPA, 705 F.2d 506, 534 (D.C. Cir. 1983); see also Eagle-Picher 
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Indus., Inc. v. EPA, 759 F.2d 905, 921 (D.C. Cir.1985) (agency must provide a full analytic 

defense when its model is challenged).

EPA Response: 

As previously explained, CAMx did well at replicating relatively high seasonal average 

measured nitrate concentrations and also predicted low concentrations in areas where measured 

nitrate was low. EPA believes that the model performance is acceptable for its intended purpose.

Additionally it is also not clear how nitrate under-predictions in relatively clean Class I areas 

would impact the conclusions of the final rule. EPA sees no reason why the conclusion that the 

Transport Rule + BART elsewhere case is better than the nationwide BART case would be 

impacted by nitrate model performance issues. The nitrate model performance in the areas of the 

country which are most impacted by the Transport Rule is good. The areas with the largest 

under-predictions of nitrate are very clean Class I areas in the West which have very little impact 

on the average visibility calculations. Also, in both control cases, BART controls are applied to 

all of the non-Transport Rule states. Therefore the difference between the nationwide BART and 

the Transport Rule + BART elsewhere case is very small in the West and has little impact on the 

overall results.

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

One potential cause for unusually low nitrate concentration levels in USEPA’s CAMx modeling 

results would be the case if the atmosphere was ammonia-limited in the model. Ammonia 

preferentially converts the SO2 to sulfate before the NOX-to-nitrate reactions occur, so it may be 

the case that the available ammonia in the model is nearly completely consumed in the sulfate 

chemistry reactions, leaving little (if any) available ammonia in the model fields to convert NOX 

emissions to nitrate.

EPA Response: 

The winter sulfate in the 2005 base year is generally overpredicted, but there is no indication of 

whether that is the cause for under-predictions of nitrate in some locations. The commenter is 

correct that there needs to be ammonia available for nitric acid to form aerosol nitrate. However, 

the formation of aerosol nitrate can also be limited by the availability of nitric acid. It is not 

clear whether lower sulfate would have an effect on the nitrate concentrations in these areas. 

EPA does not believe this issue would impact the conclusions of the final rule. The nitrate 

model performance in the areas of the country which are most impacted by the Transport Rule is 

good. The areas with the largest under-predictions of nitrate are very clean Class I areas in the 

West which have very little impact on the average visibility calculations. 

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

As noted by other comments submitted to the Docket [References 4 & 5], USEPA may have 

significantly overestimated SO2 emissions in the 2014 Base Case as well as in the two emissions 

control scenarios under consideration (Transport Rule and Nationwide BART). In part, these 

emission inventory errors result from failing to properly account for SO2 emission controls that 

have already been installed at selected facilities. It seems that these emission inventory errors 

also tend to occur at EGUs that are not BART-eligible. This overestimation of SO2 emissions
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by USEPA’s modeling would have the same impact on modeled nitrate concentrations as 

described above for underestimating atmospheric ammonia. If the SO2 emissions are 

significantly overestimated, a similar effect occurs in the CAMx model in that the available 

ammonia works first to create sulfate and, if all or most of the available ammonia goes toward 

the sulfate reactions, insufficient ammonia would be available in the model to convert NOx 

emissions to nitrate. This appears to have resulted in the significant under-prediction of 

atmospheric nitrate by USEPA’s CAMx model. In either case (underestimating atmospheric 

ammonia or overestimating atmospheric SO2 emissions), the result is that the atmospheric 

modeling lacks sufficient ammonia remains to fully convert NOX emissions to nitrate. The lack 

of nitrate in the modeling and the failure to reproduce nitrate concentrations that correlate to the 

IMPROVE monitoring results suggest a serious problem with USEPA’s modeling. By failing to 

account for nitrate, the modeling is particularly vulnerable in its ability to properly compute the 

atmospheric extinction, which is a core component of the visibility calculations.

EPA Response: 

The appropriateness of the 2014 modeled SO2 emissions is addressed in other responses (see 

section XXX). However, EPA believes that the modeled level of SO2 emissions in both the 2014 

base case and the 2014 control cases was a reasonable estimate. But either way, model 

performance can only be judged against 2005 base case emissions and 2005 observations. EPA 

does not agree that 2014 SO2 emissions are overestimated and that this is causing a problem in 

the model which would invalidate the visibility results. As described previously, the nitrate 

model performance in the areas of the country which were most impacted by the Transport Rule 

is good. The areas with the largest under-predictions of nitrate are very clean Class I areas in the 

West which have a very small impact on the average visibility calculations. 

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

The potential bias in the modeling results can also be exacerbated by USEPA’s selected 

modeling approach. The nitrate modeling is used to calculate a relative response factor (RRF), 

which is the ratio between the nitrate concentrations in each of the emissions control cases 

(Transport Rule or Nationwide BART) versus the 2014 Base Case nitrate model prediction. If 

the 2014 Base Case modeling predicted nitrate levels to be near-zero, a large RRF can be caused 

by relatively small changes in predicted nitrate concentrations. 

In fact, USEPA’s explanation for the four western Class I areas in the first prong test (where 

visibility degradation against the 2014 Base Case was modeled) cites this very problem as 

introducing a non-representative bias into the modeling results. USEPA’s explanation for the

modeled visibility degradation in the first prong test cites small changes in nitrate predictions

where both the Base Case and emissions control strategy have nitrate levels close to zero. In the

case of the modeled visibility degradation situations, USEPA has chosen to ignore modeling

results that predicted nitrate concentration increases and visibility degradation where the

modeled nitrate levels were near-zero.

However, a more comprehensive review of the nitrate concentration data throughout USEPA’s 

modeling shows that this particular problem is actually widespread within the modeling results. 

If very low modeled nitrate concentrations, as contemplated by USEPA, potentially introduce a 
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non-representative bias into the results, then USEPA’s modeling effort as a whole is questionable 

given that the modeled nitrate levels at virtually every other Class I area also exhibit the same 

characteristics. In short, because nitrate results from the modeling do not correlate to existing 

visibility measurements based on IMPROVE data, USEPA’s modeling for this Docket does not 

meet the scientific and legal standards required for such modeling.

In addition, the failure of USEPA’s modeling to adequately address nitrate concentrations in the 

atmosphere also leads to questionable modeling results when addressing the visibility 

improvements associated with future NOx emissions controls, whether under the Transport Rule 

or Nationwide BART. NOx emissions reductions under any visibility regulatory program would 

be targeting reductions of nitrate as a visibility impairing species. If USEPA’s modeling 

significantly underestimates nitrate formation, this modeling would also not accurately simulate 

the effectiveness of NOx emissions controls toward reducing atmospheric nitrate. With nitrate 

levels at or near zero in USEPA’s modeling, the NOx emission controls assumed by USEPA 

probably achieve little if any modeled benefit toward improving Class I visibility. USEPA needs 

to investigate the potential cause for near-zero nitrate concentration results in its “Better than 

BART” modeling. Furthermore, USEPA needs to make any necessary corrections to the 

modeling inputs and recalculate the expected concentrations and resulting visibility conditions. 

These findings regarding nitrate errors in USEPA’s modeling may in fact be related to a 

significant overestimate of SO2 emissions at sources by failing to properly account for emission 

controls already installed to comply with other state and federal regulatory programs and 

initiatives. USEPA’s modeled nitrate results should be more aligned with the real-world 

IMPROVE monitoring concentrations. Until the modeled nitrate levels more closely match the 

observed/expected values based on IMPROVE data, there is no confidence that USEPA has 

accurately modeled the visibility implications of the Transport Rule.

EPA Response: 

As previously explained, CAMx did well at replicating relatively high seasonal average 

measured nitrate concentrations and also predicted low concentrations in areas where measured 

nitrate was low. EPA believes that the model performance is acceptable for its intended purpose. 

The commenter believes that EPA’s “RRF approach” exacerbates problems with the modeling 

results. To the contrary, EPA believes that using the model results in a relative sense is an 

effective way to minimize the impact of model over-predictions or under-predictions on the

projected visibility metrics. Since the actual measured IMPROVE sulfate and nitrate (and other 

PM components) concentrations are used in the visibility projections, the extinction values are 

anchored by measured data. This means for example that the contribution of nitrate to the 

calculated base year extinction is exactly what was measured at each IMPROVE site, regardless 

of whether the model under-predicts (or over-predicts) the observed nitrate concentrations.

It is true that a small modeled change in a small concentration can create a large percentage 

change. However, the RRF methodology does not calculate individual day RRFs, which could be 

very large and unstable (especially if the concentrations are near zero). This issue is minimized 

by calculating RRFs using base year and future year modeled concentrations averaged across all 

best (or worst) days at each IMPROVE site. Depending on data completeness, this is usually 20-

25 worst days or best days per year.
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In the proposed rule, EPA identified 4 Class I areas (3 IMPROVE sites) which had calculated 

visibility degradation on either the 20% best or worst days. A problem was isolated to a single 

model day at each site with an unusually large percentage increase in modeled nitrate 

concentrations between the 2014 base case and the control cases. Due to the averaging across 

days before the RRFs are calculated, this problem would not normally occur. But in these cases, 

the modeled nitrate concentration was very low on most of the worst or best days and therefore 

the single day with a large percentage concentration increase had large influence on the overall 

average nitrate RRF. A closer examination of the modeled data revealed an unusual pattern of 

nitrate increases on the single day, which was attributed to model instability. EPA continues to 

believe that these identified cases of instability in modeled nitrate concentrations are isolated and 

do not impact the model results at other Class I areas in a meaningful way. Nitrate is predicted to 

decrease between 2005 and 2014 at most Class I areas due to large NOx emissions reductions 

that occur in that time period. In 2014, the model predicts that nitrate will increase (compared to 

the 2014 base case) in about half of the Class I areas due to the Transport Rule. But these 

increases in nitrate are more than offset by large decreases in sulfate. This is not surprising and is 

consistent with the findings in the Transport Rule final rule.

11. Ozone-only States

Commenter: Willie R. Taylor, Director, Office of Environmental Policy and Compliance, 

U.S. Department of the Interior 

Comment:

We also disagree with EPA that summertime nitrogen oxide (NOx) reductions aimed at reducing 

ozone pollution for those states whose coverage under the Transport Rule relates only to ozone 

issues are acceptable to address nitrate contributions to regional haze. Because nitrate particle 

concentrations are dependent on cooler temperatures and generally are elevated in the winter 

rather than the summer months, NOx controls that apply only during the summertime ozone 

season are not appropriate to address wintertime nitrate impacts to visibility. 

Our recommended remedy for these discrepancies is to treat the states of Arkansas, Louisiana, 

Nebraska, Kansas, and Oklahoma, separately from the remaining eastern states. These states are 

either subject to ozone only or are new additions to the Transport Rule that were not subject to 

the earlier Clean Air Interstate Rule. For these states, we recommend a state specific 

demonstration that the alternative is better than BART.

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

CSAPR is not Better than BART in the Ozone Season States 

EPA’s analysis does not attempt to demonstrate that CSAPR is better than BART in those states 

where power plants are only subject to the five-month ozone season NOx trading program. 

Under the better than BART proposal, BART-eligible sources in Arkansas, Florida, Louisiana, 

Mississippi, and Oklahoma - which are only covered by the ozone season program and thus only 

required to hold allowances and limit emissions during May through September - would escape 

the BART requirement to install and operate year-round controls designed to reduce NOx 

emissions that harm the nation‘s Class I areas. This creates a palpable risk of visibility 

degradation during the seven months of the year when the sources have no incentive to operate 

controls, causing CSAPR to fail under prong 1 of the reasonable progress test. See 40 C.F.R. § 
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51.308(e)(3)(i). EPA has not attempted to show that for these states CSAPR can nevertheless be 

better than BART, and based on the analysis below it will not likely be able to make that 

showing. See USFS Comments at 1 (“We do not support the provision for reliance upon ozone 

season NOx limitations as providing for greater reasonable progress than source-specific

BART.”). 

For example, as the USFS has explained, summertime NOx controls may not improve visibility 

given the atmospheric chemistry of particulate nitrate formation. As they explained, 

Particulate nitrate formation is largely dependent upon cooler temperatures and higher humidity 

values, conditions most common during the late autumn through the early spring months. This 

translates into a significantly higher contribution of particulate nitrate to the extinction budget 

during the winter season. Correspondingly, summer time nitrate concentrations are typically very 

low and contribute very little to light extinction. . . . NOx controls which are limited to ozone 

season will have little effect on reducing particulate nitrate levels during the period of the year 

when nitrate contribution to light extinction is greatest. USFS Comments at 1-3, Figs.1-2. Thus, 

at a minimum, in Oklahoma and Arkansas, where modeling predicts the highest nitrate levels 

between November and February, CSAPR is not likely to be better than BART. Id. at 3. 

Moreover, independent of the nitrate chemistry, it is not certain that CSAPR can be better than 

partial-BART because, in many of these states, CSAPR is not predicted to reduce NOx emissions 

over ozone-only BART.

[See letter for State-specific points for AR,FL,OK, MS and LA]

Commenter: National Parks Conservation Association and Earthjustice

Comment:

The emissions from each Florida EGU have different impacts on visibility as a result of, among 

other things, their respective locations and the prevailing winds toward Class I areas. EPA does 

not know – and cannot know under the current rule – which Florida EGUs will actually reduce 

NOx emissions under CSAPR, or by how much. The emissions reductions achieved by CSAPR 

in Florida are limited to five months of the year – the ozone season. Any controls that might be 

installed to meet CSAPR are not required to be operated year-round. This does nothing to protect 

the affected Class I areas during the remaining seven months. In fact, as noted in the Forest 

Service’s comments on the draft notice of proposed rulemaking, the impacts of NOx emissions 

are highest outside of the ozone season.

Even within the five month ozone season, CSAPR allows for temporal variability such that a 

facility could emit at high levels within a shorter time period, creating higher than anticipated 

visibility impacts. Because of the high degree of variability and flexibility, power plants may 

exercise options that would lead to little or no emission reductions. For example, a facility in 

Florida might purchase emission credits from a source beyond the airshed of the Class I area the 

FL source impairs. Because CSAPR requirements only pertain to the Florida source for a 

fraction of the year, that source may be even more incentivized to purchase emission credits from 

elsewhere than a source in a fully covered CSAPR state. Thus, without knowing which Florida 

EGUs will reduce pollutants by what amounts under CSAPR, or when they will do so, and 

because these emissions reductions are applicable for less than half the year, EPA simply does 

not know the impact of CSAPR upon Florida's Class I areas. 
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It is however certain that the NOx emission reductions potentially achievable through CSAPR 

allocations at the at least 9 BART eligible Florida EGUs pale in comparison to those that would 

be required through operation and installation of an appropriate BART limit, assuming each 

source were subject to BART. In fact, EPA has projected that NOx emissions from BARTeligible EGUs in Florida will be 9,178 tons lower under BART than under CSAPR. It is also 

virtually certain that steeper emission reductions would make greater strides in attaining 

reasonable progress goals and therefore calls into question EPA’s reliance on CSAPR to exempt 

BART sources from Regional Haze Rule requirements. Therefore, EPA cannot demonstrate that 

CSAPR will achieve as much visibility improvement in those areas as would BART.

EPA Response: 

Please see section III.B of the preamble for EPA’s rationale for finding that the NOx 

requirements of the Transport Rule achieve better-than-BART results for NOx for these ozoneonly states. In addition, with respect to Florida, EPA notes that the Florida Department of 

Environmental Protection, in a letter to EPA dated April 24, 2012, has committed to supplement 

Florida’s Regional Haze SIP by July 31, 2012. In this effort Florida is working with Florida 

utility owners to make case-by-case BART and reasonable progress determinations for Florida 

power plants, rather than rely on CSAPR as a better-than-BART alternative. Consequently, we 

expect NOx controls in Florida to operate year-round.

12. Use of Presumptive Limits for NOx in Arkansas Where EPA Disapproved Those 

Limits

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

The state of Arkansas adopted the presumptive NOx BART emission rates from EPA‘s BART 

Guidelines as BART limits for these units, but EPA recently disapproved these state BART 

determinations for failing to consider post-combustion controls such as selective catalytic 

reduction (SCR). As EPA noted in its proposed disapproval of the Arkansas NOx BART 

determinations, NOx emission rates with SCR as low as 0.05 lb/MMBtu have been routinely 

met. In comparison, the presumptive NOx BART rates for White Bluff Units 1 and 2 and Flint 

Creek are 0.15, 0.15, and 0.23 lb/MMBtu, respectively. 

In its BART projections for these three EGUs in the National BART 2014 scenario, EPA ignored 

its October 2011 proposed disapproval of the presumptive NOx BART limits. Instead, EPA 

assumed that meeting the presumptive NOx limits reflected source-specific BART at these units. 

EPA has now made clear in its final disapproval of those same limits that presumptive BART 

does not equal source-specific BART for White Bluff Units 1 and 2 and Flint Creek Unit 1 in 

Arkansas. See also Section VII.C.2, supra

In the summer ozone season, the NOx emitted by coal-fired power plants such as White Bluff or 

Flint Creek is more likely to be converted to ozone in the atmosphere rather than visibilityimpairing nitrate particulates. However, during the months outside of the ozone season, the data 

on the worst 20% days for Caney Creek wilderness in Arkansas shows that nitrates are often the 

major component of visibility impairment.[FN 87] And, on the best 20% of days, nitrates are 
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more often the major component of visibility impairment. Similar non-ozone season nitrate 

contributions occur at the Upper Buffalo wilderness in Arkansas, especially in the month of 

November for the worst 20% of days and in the spring, winter, and fall of the best 20% of days.

The Missouri Class I areas show similar patterns. Based on this data, it would not be protective 

of visibility on a year-round basis if the NOx controls at Arkansas EGUs only applied during the 

ozone season. Given that EPA‘s NOx emission projections do not predict any NOx emission 

reductions at the BART-subject EGUs in Arkansas under CSAPR, EPA has not, and could not, 

demonstrate that ozone-season only CSAPR requirements would result in greater reasonable 

progress towards achieving natural background visibility conditions than source-specific BART 

would. 

[FN 87] Footnote 87: See Technical Support Document for CENRAP Emissions and Air Quality Modeling to 

Support Regional Haze State Implementation Plans, prepared by ENVIRON International Corporation and 

University of California Riverside, September 12, 2007 at 3-18 (in Docket for EPA’s proposed rulemaking on the 

Arkansas Regional Haze SIP, under Appendix A references, Docket ID EPA-R06-OAR-2008-0727-0008).

EPA Response: 

EPA did not in its action on the Arkansas regional haze SIP conclude that BART for the sources 

at issue necessarily is different than presumptive BART. EPA only determined that the state had 

not properly applied the five-factor analysis to determine what should be BART for these 

sources. See preamble discussion of ozone-only states and EPA’s rationale for concluding that 

these states are appropriately included in the better-than-BART finding.

13. Deficiencies for NOx in Other NOx-only CSAPR States

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

Other Ozone-Season-Only CSAPR States 

A review of the four remaining ozone-season-only CSAPR states shows that EPA has not 

demonstrated that CSAPR is better than source-specific BART in those states either. For 

example in Florida, Crystal River Units 1 and 2 are 25 km, or about 15.5 miles, from the

Chassahowitzka Wilderness, part of the larger Chassahowitzka National Wildlife Refuge on the 

Gulf Coast of Florida. They are also within 300 km of Okefenokee, St. Marks, and Wolf Island 

wildernesses. Currently, both of these 1960s-era units have some form of combustion control for 

NOx, but no add-on controls. Under CSAPR, Units 1 and 2 at Crystal River would be required to 

reduce their ozone season NOx emissions by about 75% over 2010 actual emissions. Since 

CSAPR does not compel reductions during the remaining part of the year, this amounts to only 

about 35% reduction annually. Particularly given their impacts on multiple Class I areas, these 

units are good candidates for add-on NOx controls such as Selective Catalytic Reduction (SCR), 

which would not be required for the facility to meet its CSAPR allocations. These controls could 

provide reductions in NOx emissions of over 90%.

EPA Response: 

See preamble discussion of ozone-only states and EPA’s rationale for concluding that these 

states are appropriately included in the better-than-BART finding.
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14. Need for Worst-Case Scenarios

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA Must Analyze Whether a Seasonal Program is better than Application of Year-Round 

BART Controls 

In addition to addressing the obvious concern that limiting emissions under CSAPR for less than 

half a year cannot provide greater reasonable progress than installing and operating effective 

controls year-round, EPA must also account for the possibility that BART-eligible sources in 

these states may simply purchase allowances from newer, cleaner sources located in states 

subject to both the seasonal NOx and annual program alike - that is, sources that are more likely 

to install controls. This likely scenario risks degradation at the Class I areas impacted by sources 

in ozone season states and could cause CSAPR to fail prong 1 of the reasonable progress test. 40 

C.F.R. § 51.308(e)(3)(i). While EPA purported to model some trading in the IPM, EPA‘s failure 

to undertake a meaningful evaluation of the likely worst case scenario and CSAPR‘s impacts in 

these states renders its proposal arbitrary and unlawful.

EPA Response: 

EPA disagrees that it is likely that BART-eligible sources in an ozone-only state would purchase 

allowances from newer, cleaner sources in states subject to both the seasonal NOx and annual 

NOx program. The inclusion of a source in both programs, as opposed to the ozone season 

program only, has no effect on its likelihood of installing controls. In all cases for the Transport 

Rule, the same $/ton values were used for establishing NOx budgets. Moreover, each state must 

meet its “assurance level” in addition to its budget, and thus for a state where a NOx emitter 

purchases allowances for a source in another state, the assurance level would only be met if there 

were counter-balancing decreases at another source within the states. Finally, EPA’s IPM 

analysis, which would model such trading where the economics were favorable, inherently 

incorporates a “meaningful evaluation” of this scenario.

15. Use of IMPROVE Monitor Location to Evaluate Visibility Impacts

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA Cannot Reliably Evaluate Visibility Impacts at All Class I Areas Using Only Data from 

IMPROVE Monitors 

EPA‘s analysis is further flawed because it fails to consider differences in visibility across each 

Class I area, instead estimating visibility based on a single IMPROVE monitor, where available. 

In this way, EPA‘s analysis does not show whether CSAPR would cause a decline in visibility 

across all or parts of any Class I area. See 40 C.F.R. § 51.308(e)(3)(i). In some instances, EPA 

relied on a single monitor in a Class I Area to make conclusions about visibility in another Class 

I Area entirely. Cf. 40 C.F.R. § 51.308(e)(3) (requiring dispersion modeling “to determine 

differences in visibility between BART and the trading program for each impacted Class I area, 

for the worst and best 20 percent of days” (emphasis added)). For example, in EPA‘s analysis, 

Otter Creek Wilderness in West Virginia is represented by the IMPROVE Monitor at Dolly Sods 

Wilderness in West Virginia. See Gebhart Report at 10. 
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Evaluating visibility impairment at a single monitor location, whether that monitor is within the 

Class I area or is a proxy for a nearby Class I area, is unlikely to accurately describe visibility 

conditions across the Class I area. See Gebhart Report at 10. This problem is particularly 

pronounced for large Class I areas such as Shenandoah National Park, which covers 70 miles and 

stretches from Front Royal, Virginia to Wayneboro, Virginia. See id. Certainly, given its size, 

visibility would be expected to differ throughout the area. Nonetheless, EPA‘s modeling 

represents Shenandoah based on the single 12 km x 12 km grid square where its IMPROVE 

monitor is located. This approach conflicts with both conventional and EPA wisdom; even 

EPA‘s own BART Guidelines recognize that a single IMPROVE monitor cannot represent 

visibility impact, particularly where multiple Class I areas are at issue: 

[I]f there are multiple Class I areas in relatively close proximity to a BART-eligible source, a 

State may model a full field of receptors at the closest Class I area. Then a few strategic 

receptors may be added at the other Class I areas (perhaps at the closest point to the source, a 

receptor at the highest and lowest elevation in the Class I area, a receptor at the IMPROVE 

monitor, and a few receptors that are expected to be at the approximate plume release height). 

70 Fed. Reg. 39104, 39126 (July 6, 2005). 

Thus, analysis based on a single monitor location cannot provide assurance that visibility will not

degrade across any Class I area, and EPA must rely on more than evaluation of the impacts at 

IMPROVE monitor locations to demonstrate that visibility will not decline in any Class I area if 

CSAPR is relied on in lieu of source-specific BART. See 40 C.F.R. § 51.308(e)(3)(i). EPA‘s 

failure to consider other means of estimating visibility across the Class I areas, or to explain why 

it departed from the BART Guidelines, renders its analysis arbitrary.

EPA Response: 

The BART rule (§ 51.308(e)(3)(ii)) states that there should be an overall improvement in

visibility, determined by comparing the average differences between BART and the alternative 

over all affected Class I areas. EPA calculated the visibility difference between the Transport 

Rule + BART elsewhere case and nationwide BART case at IMPROVE monitors that represent 

Class I areas. In some cases, a single IMPROVE monitor represents multiple Class I areas. EPA 

believes that it is appropriate to calculate visibility changes at IMPROVE monitoring sites, as 

compared to Class I area locations (which are often in the same location). 

The regional haze rule requires reasonable progress goals to be met for each Class I area (and for 

the eventual return to natural conditions). The regional haze reasonable progress goals will be 

assessed by calculating visibility improvements from measured PM2.5 data from IMPROVE 

monitors. A single IMPROVE monitor location represents an entire Class I area, and sometimes 

multiple Class I areas. Therefore, to be consistent with how reasonable progress is measured, the 

EPA modeling guidance recommends examining the modeled visibility changes at IMPROVE 

monitor locations. In this respect, calculation of the visibility improvement at IMPROVE 

monitors is consistent with the implementation of the regional haze rule. 

As noted above, a single IMPROVE monitor may represent multiple Class I areas. If for 

example, an IMPROVE monitor represents 3 Class I areas, we believe that it is appropriate to 

include the modeling results at that IMPROVE monitor 3 times in the averaging calculation. 
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After all, there are 3 separate Class I areas that are located near the monitor. And each Class I 

area must show reasonable progress. However, the averaging could have been done by counting 

the results at each IMPROVE monitor only once. In order to understand the impact of this issue, 

EPA recalculated the modeling results counting each IMPROVE monitor only once, to see if this 

sensitivity analysis would change the results. In the Eastern 12km modeling domain, there were 

46 IMPROVE sites and in the full nationwide domain there were 96 IMPROVE sites. The 

sensitivity analysis counted each site once and then averaged the visibility differences over the 

46 or 96 sites. Here are the results of the revised calculations. 

Transport Rule 

+ BART 

elsewhere –

2014 Base Case 

20% Best Days

Nationwide 

BART – 2014 

Base Case 

20% Best 

Days

Transport 

Rule + BART 

elsewhere –

2014 Base 

Case 

20% Worst 

Days

Nationwide 

BART – 2014 

Base Case 

20% Worst 

Days

Eastern Class I 

Areas Average

(46 IMPROVE 

sites) 

-0.3 -0.3 -1.4 -1.1

All Class I Areas 

Average (96 

IMPROVE sites)

-0.1 -0.1 -0.7 -0.6

As can be seen in the table above, the Transport Rule + BART elsewhere case is still better than 

the Nationwide BART case when each IMPROVE site is only counted once in the average 

calculations for best and worst days.

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA’s analysis is further flawed because it fails to consider differences in visibility across each 

Class I area, instead estimating visibility based on a single IMPROVE monitor, where available. 

In this way, EPA’s analysis does not show whether CSAPR would cause a decline in visibility 

across all or parts of any Class I area. See 40 C.F.R. § 51.308(e)(3)(i). In some instances, EPA 

relied on a single monitor in a Class I Area to make conclusions about visibility in another Class 

I Area entirely. Cf. 40 C.F.R. § 51.308(e)(3) (requiring dispersion modeling “to determine 

differences in visibility between BART and the trading program for each impacted Class I area, 

for the worst and best 20 percent of days” (emphasis added)). For example, in EPA’s analysis, 

Otter Creek Wilderness in West Virginia is represented by the IMPROVE Monitor at Dolly Sods 

Wilderness in West Virginia. See Gebhart Report at 10. 

Evaluating visibility impairment at a single monitor location, whether that monitor is within the 

Class I area or is a proxy for a nearby Class I area, is unlikely to accurately describe visibility 
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conditions across the Class I area. See Gebhart Report at 10. This problem is particularly 

pronounced for large Class I areas such as Shenandoah National Park, which covers 70 miles and 

stretches from Front Royal, Virginia to Wayneboro, Virginia. See id. Certainly, given its size, 

visibility would be expected to differ throughout the area. Nonetheless, EPA’s modeling 

represents Shenandoah based on the single 12 km x 12 km grid square where its IMPROVE 

monitor is located. This approach conflicts with both conventional and EPA wisdom; even 

EPA’s own BART Guidelines recognize that a single IMPROVE monitor cannot represent 

visibility impact, particularly where multiple Class I areas are at issue: 

[I]f there are multiple Class I areas in relatively close proximity to a BART-eligible source, a 

State may model a full field of receptors at the closest Class I area. Then a few strategic 

receptors may be added at the other Class I areas (perhaps at the closest point to the source, a 

receptor at the highest and lowest elevation in the Class I area, a receptor at the IMPROVE 

monitor, and a few receptors that are expected to be at the approximate plume release height). 70 

Fed. Reg. 39104, 39126 (July 6, 2005). 

Thus, analysis based on a single monitor location cannot provide assurance that visibility will not 

degrade across any Class I area, and EPA must rely on more than evaluation of the impacts at 

IMPROVE monitor locations to demonstrate that visibility will not decline in any Class I area if 

CSAPR is relied on in lieu of source-specific BART. See 40 C.F.R. § 51.308(e)(3)(i). EPA’s 

failure to consider other means of estimating visibility across the Class I areas, or to explain why 

it departed from the BART Guidelines renders its analysis arbitrary.

EPA Response: 

As previously noted, the visibility changes from the CAMx model runs were calculated at 

IMPROVE monitoring sites. EPA agrees that a visibility change that is supposed to represent a 

large area should not be calculated at a single 12km grid cell. That is why the post-processing for 

the 12km modeling results used a change in modeled concentrations averaged over a 3x3 grid 

cell area (which is a total area of 36km x 36km). For the 36km model results (used in the 

extreme West), a single 36km grid cell was used to represent the change in modeled 

concentrations. The averaging of multiple grid cells in the 12km domain was clearly stated in 

section 3.4 of the proposal TSD and we are not changing the methodology in the final rule. 

Although a 36km square area is smaller than many Class I areas, it is a reasonably large area to 

represent the change in visibility at an IMPROVE monitor (and it also follows the 

recommendations in the regional haze modeling guidance). The BART Guidelines referenced in 

the comment refer to dispersion modeling of individual point sources to determine impacts on 

nearby Class I areas. For this rule we did not do this type of modeling. The modeling completed 

for this rule is grid modeling which includes all emissions sources in the same model run. This is 

similar to the type of modeling performed by states to help determine if reasonable progress will 

be met in future years. The appropriate modeling guidance to follow for this type of modeling is 

the photochemical modeling guidance document “Guidance on the Use of Models and Other 

Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and Regional 

Haze”.
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16. Appropriateness of Emission Projections that Are Lower than CSAPR 

Budget Allocations

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA’s Assumptions about Emission Reductions under CSAPR Are Not Consistent with 

CSAPR’s Own Requirements 

In the better than BART rule, EPA has assumed that both Alabama and Georgia will emit fewer 

tons of SO2 than allowed under each state‘s respective emission budget in the original CSAPR 

rulemaking as described in the table below. Similarly, EPA has assumed that Alabama, Kansas, 

Pennsylvania, and West Virginia each will emit fewer tons of NOx than allowed in each state‘s 

respective emission budget in the original CSAPR rulemaking as described in the table below. 

Assuming that these CSAPR states will emit less SO2 or NOx than CSAPR requires is not only 

unfounded, but also may under-predict visibility impairment, preventing detection of a likely 

decline in visibility in Class I areas. See 40 C.F.R. § 51.308(e)(3)(i). Further, in EPA‘s current 

analysis, which considers BART in a vacuum without CSAPR, overstating SO2 emissions 

reductions arbitrarily attributes added visibility improvements to CSAPR over BART, rendering 

CSAPR more likely to satisfy the second prong of the reasonable progress test undeservedly. See 

id. § 51.308(e)(3)(ii).

Accordingly, EPA‘s proposal is arbitrary because it assumes without rational support that 

CSAPR will achieve greater emissions reductions than the trading program requires. This 

approach is flatly at odds with the agency‘s proper refusal in other instances to allow states or 
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sources to claim credit for emission limitations or reductions that are not federally enforceable. 

See, e.g., CAA § 110(a)(2), 42 U.S.C. § 7410(a)(2); 40 C.F.R. § 51.308(d)(3).

EPA Response: 

While the commenter’s observation that some states are projected to emit at levels lower than 

their budgets in 2012 is correct, EPA disagrees with the assertion that there is no rational support 

for this. The Transport Rule is a cap-and-trade program that affords sources and states a variety 

of compliance strategies. States have emissions budgets that they may exceed (by up to 18% or 

21%). Likewise, sources may emit at levels lower than their allocated portion of the state budget 

and sell their excess allowances to sources that wish to emit more. The IPM is a least-cost 

economic model that optimizes dispatch over both time and geography. There are more than 13 

million variables and 1 million constraints informing the model. The prediction that certain states 

will emit lower than their budgets is not arbitrary. It is a very informed prediction of how states 

and their sources would respond to the economic incentives created under the Transport Rule. 

Moreover, EPA has real-world experience that confirms that this type of behavior (a state’s 

tendency to emit at levels lower than its budget) does occur. We have seen emissions below 

budgets in response to previous trading programs such as the Acid Rain Program, the NOx 

Budget Program, and the Clean Air Interstate Rule. In each of these programs, there are instances 

of states emitting at levels lower than their budget levels.

EPA’s modeling of “CSAPR+BART elsewhere” correctly imposed all CSAPR relevant 

constraints and state budgets, however given the existence of BART elsewhere the system 

response of the power sector results in different level of emissions in and outside of the CSAPR 

region within the variability limits and banking allowances. The Transport Rule is a trading 

program that affords the covered states the flexibility to emit at varying emission levels as long 

as they do not exceed a state cap which reflects the maximum amount of emissions they may 

have while still eliminating their significant contribution.

17. Need to Appropriately Account for Reasonably Attributable Visibility 

Impairment (RAVI) and Potential “Hot Spots”

Commenter: Willie R. Taylor, Director, Office of Environmental Policy and Compliance, 

U.S. Department of the Interior

Comment:

We are concerned that these emission differences combined with a liberal interpretation of better 

than BART evaluation criteria will result in less progress in some Class I areas toward meeting 

the goals set out by the Regional Haze Rule. This will have an unintended consequence of 

placing an added burden on the Federal Land Managers to evaluate state-level deficiencies in the 

context of presumed "better than BART conclusions" and to press for these deficiencies to be 

rectified. Where the Transport Rule is not protecting visibility at specific Class I areas, 

certification of Reasonably Attributable Visibility Impairment (RAVI) will be the only 

mechanism available to Federal Land Managers to press for geographic enhancements to 

Transport Rule emission allocations. We ask that EPA consider the following weaknesses of the 

better than BART evaluation and adopt our suggestions. 

Section III C 4 of the NPRM retains 40 CFR 51.3 08( e)( 4) that allows states discretion to 

include geographic enhancements in their regional haze implementation plan for the BART 
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analysis required to address RAVI. We recommend that Section III C 4 explicitly state that the 

Transport Rule does not replace the BART analysis that is required to address RAVI 

certification. The BART determination for RAVI needs to address the impairment at the specific 

Class I area or areas. It is not appropriate to address RAVI by demonstrating regionally-average 

visibility improvement. This is currently relevant to the Department of the Interior's RA VI 

certification of visibility impacts from the Sherburne County Generating Station (Sherco) in 

Minnesota at Voyageurs and Isle Royale National Parks. Minnesota's BART determination for 

regional haze for Sherco did not alleviate these visibility impacts and EPA is now conducting a 

BART determination for RA VI for Sherco. The Transport Rule, in its current state, will not 

address these source-specific impacts. This shortcoming of the proposed rule needs to be 

addressed before the rule is finalized.

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA Failed to Adequately Consider the Potential for Trading to Degrade Visibility at the Class I 

Areas 

CSAPR is designed to give sources flexibility in meeting their emission allocations, and as such, 

allows BART-eligible sources—sources that may have been required to install pollution controls 

to comply with BART requirements—to purchase allocations rather than control emissions. 

These trading decisions can significantly impact whether and where CSAPR will create hot spots 

that could degrade visibility at the Class I areas, causing CSAPR to fail the first prong of the 

reasonable progress test. See 40 C.F.R. § 51.308(e)(3)(i). 

As discussed above, CSAPR allows sources covered by the same trading program—e.g., the 

annual NOx program or the SO2 Group 1 program—to trade allowances regardless of whether 

the sources are in the same state, creating inherent uncertainties about where and, as discussed in 

the next section, when states will choose to emit. Given these inherent uncertainties, EPA‘s 

analysis for the proposed CSAPR “better than BART” rule does not and likely cannot assess the 

visibility impact of complex trading under CSAPR on the Class I areas. EPA has not provided 

any assurance in light of trading that CSAPR will not degrade visibility at any Class I area, or 

that CSAPR will achieve as much visibility improvement in those areas as BART would. Thus, 

regardless of whether trading flexibility will assist the states in complying with the NAAQS, this 

flexibility is at odds with ensuring emissions reductions and visibility improvement at specific 

Class I areas under the regional haze rule. 

To remedy potential hot spots arising from trading decisions, EPA proposes to allow geographic 

enhancements, which, among other measures, could require installation of BART to remedy 

visibility impairment that is reasonably attributable to a source or group of sources (RAVI 

BART). See, e.g., 76 Fed. Reg. 82219, 82224 & n.13. Certainly RAVI BART is critical to 

remedying existing impairment and must be implemented no matter what the fate of the “better 

than BART” proposal. See 40 C.F.R. § 51.302 (setting forth the control strategies to address 

reasonably attributable visibility impairment).98 However, RAVI BART cannot be relied upon to 

prevent hot spots and associated degradation under CSPAR. RAVI BART is reactive; it requires 

FLMs to voluntarily take action to address an existing problem, and thus will not spur proactive 

permitting or other actions to avoid degradation in the first instance. See id. §§ 51.302(c)(1), (4); 

see also USFS Comments at 14 (explaining that relying on RAVI BART “shifts the burden of 
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insuring that individual Class I area progress goals are maintained in areas where BART would 

have achieved greater visibility improvement than the Transport Rule from the State to the 

affected Federal Land Manager”). 

Thus, given the barriers and procedural hurdles of imposing RAVI BART, EPA cannot rely on 

RAVI or other geographic enhancements to mitigate the level of impairment at the multiple 

Class I areas to save its “better than BART” proposal, but instead must ensure in the first 

instance that the trading allowed under CSAPR will not degrade the Class I areas, as prohibited 

under the first prong of the reasonable progress test, 40 C.F.R. § 51.308(e)(3)(i). See USFS 

Comments at 14 (“While we believe preserving the RAVI BART process under 302(c) is of 

paramount importance and should be explicitly reaffirmed in this rulemaking, we believe that 

using the RAVI regulations to serve as the “regulatory backstop” to be an unreasonable 

expectation and contrary to the intended purposes of the requirements of Section 308(e) of the 

[Regional Haze Rule].”); see also Sierra Club v. EPA, 356 F.3d 296, 298 (D.C. Cir. 2004) (“We 

agree with Sierra Club‘s principal contention that EPA was not authorized to grant conditional 

approval to plans that did nothing more than promise to do tomorrow what the Act requires 

today.”).

[FN 98] In the CAIR better than BART rulemaking, EPA went to great lengths to explain that it recognized that a 

BART-alternative under the Regional Haze Rule does not eliminate the requirement that states impose BART where 

necessary to address reasonably attributable visibility impairment. See 70 Fed. Reg. 39104, 39137 (July 6, 2005) 

(explaining, when finalizing the CAIR better than BART rule, that “[e]ven if a BART alternative is deemed to 

satisfy BART for regional haze purposes, . . . CAA section 169A(b)(2)‘s trigger for BART based on impairment at 

any Class I area remains in effect, because a source may become subject to BART based on “reasonably attributable 

visibility impairment‘ at any area” (citing 40 C.F.R. § 51.302)). 

Commenter: Kathyrn M. Amirpashaie/Sierra Club

Kristin A. Henry, Sierra Club

Comment:

EPA’s “Better Than BART” Modeling Fails To Adequately Account For CSAPR’s Trading 

Aspect And, Therefore, EPA Cannot Make Any Assurances That Visibility Does Not Decline In 

Any Class I Area. 

EPA’s “better than BART” modeling and analysis is further flawed since it does not account for 

CSAPR’s prominent trading program. Based on the inherent variability that results from the 

ability to trade allowances under CSAPR, where budgeted emissions will ultimately be emitted 

and when they will be emitted is entirely conjecture. As a result, EPA’s modeling, which 

operates under the assumption that sources will only emit up to their budgeted allowances is 

flawed. EPA’s modeling essentially consists of guesses and assumptions as to what emissions 

will be under CSAPR. It ignores the very real possibility that sources that impact Class I areas 

will purchase additional allowances and emit at levels greater than EPA assumed in its modeling. 

As a result, EPA has failed to show that visibility will not decline in any Class I area. 40 C.F.R. § 

51.308(e)(3)(i). EPA’s determination that there will be an overall improvement in visibility with 

CSAPR versus BART is likewise flawed. 40 C.F.R.§ 51.308(e)(3)(ii). As a result, there is no 

basis for concluding that CSAPR will be “better than BART” under the revised versions of 

CSAPR. 

It seems as though EPA has failed to acknowledge a critical distinction between BART and 

CSAPR—namely, the fact that BART imposes emission limits on individual sources, where as 
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CSAPR provides emission allowances to individual sources. Compare 42 U.S.C. § 7492(g)(2), 

with Final Rule, Federal Implementation Plans: Interstate Transport of Fine Particulate Matter 

and Ozone and Correction of SIP Approvals, 76 Fed. Reg. 48208, 48271 (Aug. 8, 2011) 

(codified at 40 C.F.R. Parts 51, 52, 72, 78, and 97). This small yet significant distinction between 

the two alternatives is why CSAPR cannot provide any real assurance that emissions from a 

particular source will not cause or contribute impairments of visibility in nearby Class I areas 

and why RHR’s BART requirements remain the appropriate tool to ensure that EGUs comply 

with the CAA’s visibility protections. Whereas CSAPR’s trading program leads to great 

uncertainty as to the ultimate dispersion of allowances in relation to Class I areas, an adequate 

source-specific BART limit will provide the necessary protection for Class I areas within the 

state—this is why the BART requirements are not only a part of the RHR, they are also explicitly 

mandated by the CAA itself. 42 U.S.C. §7491(b)(2)(A). 

Given the geographical implications of its trading program, CSAPR does not ensure visibility 

will not decline at any Class I area in the state, or that overall visibility will improve. See 40 

C.F.R. § 51.308(e)(3)(i),(ii). Under an emission trading program such as CSAPR, individual 

sources can comply with their allowances by reducing their emissions down to the level of their 

budget or by obtaining additional emission credits from other sources elsewhere within the state. 

As a result, sources are not necessarily required to install controls to reduce their pollution —

instead, they have the option to purchase emission allowances, thereby allowing them to pollute 

above their allocated limits. [FN 24] See, e.g., 76 Fed. Reg. at 48252–53, 48271–72 (describing 

CSAPR’s trading program). This allows for a situation to arise in which an EGU (or a group of 

EGUs) with the potential to impact a protected Class I area emits a total tonnage of SO2 and/or 

NOx that exceeds the tonnage value of its allowance holdings. As a result, EPA cannot really say 

where the CSAPR reductions will occur since CSAPR allows intra-state trading. Yet, EPA’s 

modeling does not account for this variation from budgeted allowances. Instead, the modeling 

assumes that the budgeted emissions for each EGU are a cap which cannot be exceeded. Based 

on the real world application of CSAPR and any other trading program, these “caps” are artificial 

and impermanent. Therefore, it is arbitrary and capricious for EPA to ignore the trading aspect of 

CSAPR and inappropriately assume that sources will emit at their Transport Rule emission 

budget when making its comparison of reductions required by BART and those required under 

CSAPR. See State Farm, 463 U.S. at 43. More specifically, it is arbitrary to compare a real, 

source specific BART emission limit with a speculative cap under CSAPR’s cap and trade 

program. Id. 

Indeed, EPA is well aware of the fact that actual emissions for each EGU under CSAPR will 

vary from their allocated limits since these EGUs have the capability and are expected to trade 

emission allowances. [FN 25] Despite this knowledge, instead of considering the real-life 

application of CSAPR’s trading program, EPA’s modeling centers around an unrealistic and 

improper assumption that the modeled EGUs will only emit up to their budgeted SO2 and NOx 

allowances. In other words, EPA’s modeling fails to consider or account for the fact that 

emissions from certain EGUs may be significantly higher than their allocated limits which may 

result in visibility degradation at nearby Class I areas. As a result, EPA’s modeling improperly 

favors CSAPR over BART. 
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EPA can speculate as much as it wants at what the actual emission rate a source subject to 

CSAPR will emit, but comparing an actual BART determined emission limit to a speculated 

emission rate under CSAPR is merely conjecture. The uncertainty surrounding the actual 

distribution of CSAPR’s SO2 and NOx allocations derives from the fact that those allocations are 

a commodity. The value of this commodity is influenced by other commodities that are global in 

nature and rapidly changing in price. This includes the cost of coal, as well as the capital cost of 

renewable energy products such as wind turbines and solar panels. It also includes the cost of 

natural gas, which is becoming more and more of a global commodity as the export and import 

capability for liquefied natural gas and the natural gas pipeline from Alaska to the lower 48 

advances. The value of CSAPR emission credits are also greatly influenced by weather, as 

weather has one of the biggest impacts on electricity demand and thus electricity generation. And 

with the effects of climate change already upon us, the ability to effectively predict the impact 

weather trends will have on this commodity is becoming even more speculative. The unknown 

state of the future market, therefore, makes it impossible for EPA to reasonably conclude that 

CSAPR is better than a source specific BART determination; especially when you speculate five, 

ten years out. It would be arbitrary to ignore the chronological aspect of this “better than BART” 

analysis.

[FN 24] While there are some restrictions on trading, intra-state trading is still allowed under CSAPR. 76 Fed. Reg. 

at 48271-72. 

[FN 25] EPA has long recognized that the flexibility provided by a trading program such as CSAPR can lead to 

reasonably attributable visibility impairment at a Class I area if a power plant that causes or has the potential to 

cause visibility impairment at a Class I area purchases emission allowances rather than reducing emissions. 70 Fed. 

Reg. 39104, 39137 (July 6, 2005) (discussing visibility hot spots under the CAIR trading program); see also 40 

C.F.R. § 51.308(e)(4) (providing for “geographic enhancements” under CAIR).

Commenter: Kristin A. Henry, Sierra Club

Comment:

Given the geographical implications of its trading program, CSAPR does not ensure visibility 

will not decline at any impacted Class I area in the state or that visibility will improve in the 

impacted states. Under an emission trading program such as CSAPR, individual sources can 

comply with their allowances by reducing their emissions down to the level of their budget or by 

obtaining additional emission credits from other sources elsewhere within the state. As a result, 

sources are not necessarily required to install controls to reduce their pollution—instead, they 

have the option to purchase emission allowances, thereby allowing them to pollute above their 

allocated limits.13 See, e.g., 76 Fed. Reg. at 48252–53, 48271–72 (describing CSAPR’s trading 

program). This allows for a situation to arise in which an EGU (or a group of EGUs) with the 

potential to impact a protected Class I area emits a total tonnage of SO2 and/or NOx that exceeds 

the tonnage value of its allowance holdings, thereby potentially causing a visibility “hot spot” 

that would not have occurred had that EGU been subject to the Regional Haze’s BART 

requirements. Indeed, EPA has long recognized that the flexibility provided by a trading program 

such as CSAPR can lead to reasonably attributable visibility impairment or visibility “hot spots” 

at a Class I area if a power plant that causes or has the potential to cause visibility impairment at 

a Class I area purchases emission allowances rather than reducing emissions. See discussion 

supra. Yet, EPA’s modeling does not account for this variation from budgeted allowances. 

Instead, the modeling assumes that the budgeted emissions for each EGU are a cap which cannot 

be exceeded. Based on the real world application of CSAPR and any other trading program, 

these “caps” are artificial and impermanent. Therefore, it is arbitrary and capricious for EPA to 
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ignore the trading aspect of CSAPR and inappropriately assume that sources will emit at their 

CSAPR emission budget when making its comparison of reductions required by BART and 

those required under CSAPR. See State Farm, 463 U.S. at 43.

More specifically, it is arbitrary to compare a real, source specific BART emission limit with a 

speculative cap under CSAPR’s cap and trade program. Id. EPA can speculate as much as it 

wants at what the actual emission rate a source subject to CSAPR will emit, but comparing an 

actual BART determined emission limit to a speculated emission rate under CSAPR is merely 

conjecture.

These arbitrary assumptions could have on the ground visibility issues for Class I areas. There 

are nine power plants with fifteen generating units that are within 300 km of at least one class 

one area. For example, Tanners Creek power plant is within 237 km, Harding Street Station is 

within 279 km, Petersburg power plant (with 3 eligible BART units) is within 177 km, Wabash 

River Generating Station is within 282 km, F.B. Culley Generating Station (with 2 eligible 

BART units) is within 132 km, Frank E. Ratts (with 2 eligible BART units) is within 177 km, 

Gibson power plant (with 2 eligible BART units) is within 194 km, A.B. Brown Generating 

Station is within 160 km, and Merom power plant (with 2 eligible BART units) is within 240 km 

of Mammoth Cave National Park. Indiana is supposed to develop and the EPA is supposed to 

approve a long-term strategy for doing its part to ensure that Class I Areas in other states achieve 

uniform rates of progress on reducing visibility impacts and remain on a glide path for restoring 

visibility to natural conditions by 2064. Since some or all of these sources could choice to meet 

their obligations under CSAPR through allowances, Indiana can have a profound effect on a 

number of Class I areas ability to meet the glidepath. 

Commenter: Earthjustice/Texas

Comment:

BART-Eligible EGUs in Texas Will Cause Visibility Hot Spots under CSAPR

The proposed partial FIP for Texas is also unsupportable because it allows for entire groups of 

haze-emitting sources to continue impairing visibility, thus creating visibility “hot spots.” The 

“reasonably attributable visibility impairment” provisions of 40 C.F.R. § 51.302(c) require 

BART limits to remedy such visibility hot spots. Under 40 C.F.R. § 51.302(c), BART is required 

whenever certain sources—such as EGUs—cause or contribute to reasonably attributable 

visibility impairment at one or more Class I areas. This BART requirement is separate and 

additional to the RHR’s BART requirements at 40 C.F.R. § 51.308(e). See, e.g., Email from Pat 

Brewer, NPS, to Martha Keating, EPA (Dec. 16, 2011, 1:02 PM) (NPS comments to EPA that 

“nothing in 308 changes the 302 requirement for responding to [reasonably attributable visibility 

impairment]”) (Exh. 12).

“Reasonably attributable visibility impairment” is defined as “visibility impairment that

is caused by the emission of air pollutants from one, or a small number of sources.” Id. § 51.301.

A source “causes” visibility impairment if it causes a 1.0 dv change or more at one or more Class

I areas, and a source “contributes” to visibility impairment if it causes a 0.5 dv change or more.

See 40 C.F.R. Pt. 51, App. Y, at III(A)(1); 70 Fed. Reg. at 39118, 39120–21. Further, “[b]ecause

circumstances will vary in different locations,” states also have the ability to set the visibility

impairment contribution threshold lower than 0.5 dv. 70 Fed. Reg. at 39121. If an affected
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Federal Land Manager certifies the existence of reasonably attributable visibility impairment

from a BART-eligible source or group of sources, the state or EPA must impose emission limits

at least as stringent as those required under New Source Performance Standards for those

sources. 40 C.F.R. § 51.302(c)(2) & (c)(4). Moreover, the states and EPA may require BART 

limits to remedy reasonably attributable visibility impairment without a Federal Land Manager

certification. 76 Fed. Reg. at 82224 n.13. [FN20]

Under an emission trading program such as CSAPR, power plants are not required to install 

controls to clean up their pollution. While power plants may opt to reduce emissions to meet 

their source allocations, they may instead purchase emission allowances from other power plants. 

See, e.g., 76 Fed. Reg. at 48252–53, 48271–72 (describing CSAPR’s trading program). This can 

lead to visibility hot spots when a power plant near a Class I area purchases emission allowances 

from a distant power plant rather than reduces emissions. EPA has long recognized that the 

flexibility provided by a trading program such as CSAPR can lead to reasonably attributable 

visibility impairment, or visibility hot spots, at one or more Class I areas if a source or a small 

group of sources that causes visibility impairment at the Class I area purchases emission 

allowances rather than reduces emissions. 70 Fed. Reg. at 39137 (discussing visibility hot spots 

under the CAIR trading program); see also 40 C.F.R. § 51.308(e)(4) (providing for “geographic 

enhancements” under CAIR).

In such cases, BART limits for those EGUs that are reasonably anticipated to cause or contribute 

to visibility impairment remain a critical tool to ensure that where a BART-alternative program 

fails to ensure adequate protection of one or more Class I areas, that program may be

supplemented by existing complementary provisions in the Clean Air Act and the RHR.

Accordingly, EPA stressed in its proposed “better than BART” determination for CSAPR that 

BART remains as a backstop to remedy any reasonably attributable visibility impairment that 

occurs under CSAPR and its trading program. 76 Fed Reg. at 82221, 82224 & n.13. The

National Park Service, which has an affirmative duty to protect visibility at its Class I areas,

insisted that EPA’s proposed rule provide clarity on this important point. For example, the Park

Service asked EPA to clarify “in the regulation, not just the preamble” to the proposed rule that

nothing in the rule “changes the . . . requirement[s] for responding” to reasonably attributable

visibility impairment,” or visibility hot spots, under 40 C.F.R. § 51.302. Exh. 12. It is critical that 

at a minimum, the reasonably attributable visibility impairment protections be left intact. EPA 

arbitrarily proposed a partial FIP for Texas and other CSAPR states that would exempt BARTeligible EGUs from BART without first conducting modeling to determine whether these EGUs 

would cause or contribute to visibility hot spots under CSAPR. Accordingly, EPA has failed to 

demonstrate that CSAPR would not allow for hot spots or reasonably attributable visibility 

impairment and cannot issue the partial FIP without this demonstration, as explained in the 

accompanying Earthjustice comment letter.

Further, the available evidence indicates that had EPA conducted modeling, it would likely have 

demonstrated that BART-eligible EGUs in Texas will cause visibility hot spots at multiple Class 

I areas even if they reduce their emissions to the allocations now allowed under CSAPR. 

Modeling conducted by Dr. Tammy Thompson at the Massachusetts Institute of Technology 

demonstrates that even if BART-eligible EGUs at Big Brown, Martin Lake, Monticello, and 

Welsh power plants reduce emissions to meet the CSAPR allocations, they would cause 
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reasonably attributable visibility impairment at Big Bend and Guadalupe Mountains National 

Parks and Caney Creek and Wichita Mountains Wilderness Areas. Dr. Thompson’s modeling 

compared visibility impacts under CSAPR to a scenario where emissions from the BARTeligible EGUs at Big Brown, Martin Lake, Monticello, Welsh, and 3 other non-EGU BARTeligible sources were zeroed out.[FN 21] The results, presented in Tables 3 and 4, demonstrate

that under CSAPR, these BART-eligible EGUs will cause or contribute to visibility impairment

at four Class I areas on at least a total of 101 days annually. 

[FN22] Dr. Thompson’s final report on the visibility impacts of Big Brown, Martin Lake, Monticello, and Welsh 

will be available soon after the February 28, 2012 deadline for comments on EPA’s proposed rule. When Dr. 

Thompson’s final report is issued, NPCA and Sierra Club will provide a copy of the report to EPA.

[FN23] Maximum daily visibility impact values demonstrate the potential for visibility hot spots under CSAPR if 

EGUs are exempted from the RHR’s BART requirements. CAMx models were used to produce these results, and 

the CAMx model underestimates visibility impact where the CALPUFF model is known to overestimate visibility 

impact. The BART Guidelines require the use of the 98th percentile of modeled visibility values for CALPUFF in 

order to minimize the likelihood that the modeling results will represent anomalies. Because CAMx is differently 

constructed, it is more accurate to represent results reflecting the worst impairment days in terms of maximum daily 

impact.
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It is important to note that the visibility impacts highlighted above are conservative for 

several reasons. First, the modeling is based on the initial SO2 and NOx budgets for EGUs under

CSAPR (for consistency with EPA’s modeling protocol), rather than the recently finalized

revisions to CSAPR that would significantly increase the SO2 and NOx budgets for Texas EGUs.

See supra at 14–15. Thus, the SO2 and NOx emissions—and the visibility impacts—of Texas

EGUs will likely be greater under CSAPR than the modeling suggests. Second, BART-eligible

EGUs in Texas will be able to purchase emissions allowances from distant EGUs in Texas and

other states under CSAPR, rather than reducing actual emissions to the SO2 and NOx allocation

levels. See supra at 6 &12 n.15. As a result, the modeling represents a best-case scenario that

assumes that Texas’s BART-eligible EGUs will reduce their emissions to the level of the SO2

and NOx budgets under CSAPR. Even under this best-case scenario, these BART-eligible EGUs

in Texas will cause or contribute to visibility impairment at Big Bend, Guadalupe Mountains,

Caney Creek, and Wichita Mountains. The reality will likely be worse for these National Parks

and Wilderness Areas, as it is unlikely that these EGUs will reduce their SO2 and NOx emissions

to the level assumed by the modeling.

In addition, estimated emissions from all BART-eligible EGUs in Texas indicate that every 

BART-eligible EGU in the state will likely cause visibility impairment under CSAPR. States and 

Federal Land Managers routinely rely on the ratio of quantity of emissions over distance to the 

nearest Class I area (Q/d values) to identify sources that may be subject to BART. A Q/d value 

of 10 or greater generally indicates that a source causes or contributes to visibility impairment 

and dispersion modeling is warranted. See, e.g., 76 Fed. Reg. 58570, 58624 & n.83 (Sept. 21, 

2011) (describing how the BART guidelines and the Federal Land Managers’ proposed FLAG 

guidance amendments set a Q/d threshold value of 10). The Q/d value for every BART-eligible 

EGU in Texas under CSAPR would be far greater than 10. See Table 5.
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The hot spots at Class I areas caused by emissions from the BART-eligible EGUs in

Texas could be alleviated through the installation and operation of appropriate BART controls.

None of these EGUs have installed modern BART controls for both SO2 and NOx. See Table 1.

As discussed above, BART would result in significantly greater emission reductions from

Texas’s BART-eligible EGUs than CSAPR. See supra at 17–18.

Because the BART-eligible EGUs at Big Brown, Martin Lake, Monticello, and Welsh will 

continue to cause or contribute to visibility impairment at multiple Class I areas under CSAPR, 

EPA cannot exempt these EGUs from BART. Moreover, because the Q/d values for the other 

BART-eligible EGUs in Texas indicate that they likely also cause or contribute to visibility 

impairment at one or more Class I areas under CSAPR; further modeling is required, at a 

minimum. If modeling demonstrates that these EGUs also cause or contribute to visibility

impairment at one or more Class I areas under CSAPR then they too cannot be exempted from

BART. When a BART-alternative results in a visibility hot spot at a Class I area, it is incumbent

upon EPA to require BART controls or other geographic enhancements to remedy the reasonably

attributable visibility impairment. See 76 Fed Reg. at 82221, 82224 & n.13. Consequently, to the 

extent that CSAPR allows any EGUs subject to BART to continue impairing visibility, the

regional haze plan for Texas must require BART controls or other geographic enhancements to

ensure that the reasonably attributable visibility impairment at affected Class I areas will be

remedied.

[FN 20] Unlike the RHR, EPA regulations do not provide for BART-alternative exemptions when a source is 

subject to BART due to reasonably attributable visibility impairment. Compare 40 C.F.R. § 51.302(c), with id. § 

51.308(e)(2).

[FN 21] The 3 non-EGU BART-eligible sources included in Dr. Thompson’s modeling were TXI Operations 

Midlothian Cement plant, Eastman Chemical Co., and Texarkana Paper Mill.
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EPA Response:

[placeholder]

18. Timing of Reductions, Possibility for Emissions During Bad Visibility 

Days

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA Failed to Consider When States Will Use Allowances, Potentially Overstating the Visibility 

Benefits Provided by CSAPR 

EPA’s analysis potentially overstates the air quality benefits provided by CSAPR because EPA 

failed to consider that while allowances are issued for a given year, sources are under no 

obligation to ration the allowances out over the year. Instead, as some coal plants are already 

planning to do, a source might choose to save its allowances for use during the summer ozone 

period when demand for electricity is at its peak and to idle during the rest of the year, failing to 

reduce emission during the months when Class I areas may be most especially likely to 

experience degradation in visibility. This, in turn, makes it unlikely that CSAPR will pass the 

first prong of the reasonable progress test. See 40 C.F.R. § 51.308(e)(3)(i). 

For example, Luminant Generation Co. has indicated that it would idle units at Monticello in 

Texas when demand is low, but for D.C. Circuit Court of Appeals‘ recent decision to stay 

implementation of the rule,99 and the Tennessee Valley Authority has likewise indicated it is 

considering idling when demand is low at many of its plants in Kentucky.100 If each of these 

sources chooses to emit during peak ozone season and idle in the off season, the visibility 

benefits that BART could achieve will not materialize, and it is possible that visibility will 

degrade at nearby Class I areas. Under these circumstances, CSAPR cannot be deemed better 

than BART. See 40 C.F.R. §§ 51.308(e)(3)(i)-(ii). 

In addition, because the comparison under 40 C.F.R. § 51.308(e)(3)(ii) is based on the worst and 

best days rather than every day, EPA cannot say that CSAPR will improve visibility more than 

BART because EPA cannot say during what days CSAPR sources will emit at their highest level. 

This problem is not only intra-year but inter-year. That is CSAPR allows banking of allowances 

so that sources can emit at a high level and thus have high visibility impacts in a particular year 

versus source-specific BART that guarantees visibility at the same level every year. See 40 

C.F.R. §§ 97.426, .526, .626, .726. Failure to account for the temporal implications of the use of 

allowances renders EPA‘s analysis of the visibility benefits under CSAPR inadequate to 

demonstrate that CSAPR is better than BART

Commenter: Earthjustice/Texas

Comment: (footnote 19 to letter)

[FN 19] EPA also overestimated the visibility benefits of CSAPR by failing to consider that 

Texas power plants will likely idle several EGUs during the winter months when power demand 

is low, but generate electricity during the summer months when power demand is high. As the

accompanying Earthjustice comment letter explains, Luminant Generation Co. has stated that it

will idle two Monticello EGUs when demand is low so as to preserve its CSAPR SO2 
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allowances for periods of high demand. If these Monticello units generate electricity in the 

summer at quantities up to their annual CSAPR SO2 budget, visibility will likely degrade 

significantly during the months when the Monticello units are in operation, which is also when 

meteorological patterns at affected Class I areas are most unfavorable for exacerbating the 

effects of haze-causing pollution. In contrast, BART would result in a consistent year-round 

reduction of emissions. In short, EPA has not accounted for important temporal implications of 

CSAPR and the likelihood of seasonal visibility hot spots at Class I areas.

EPA Response: 

In general, most of the emissions regulated by CSAPR are from base-load rather than “loadfollowing” units. This means they are units that tend to operate at relatively constant and high 

capacity utilization throughout the year. Typically, load-following EGUs which increase their 

level of operation in the summer tend to be lower-emitting natural gas-fired units. Given the 

stringent annual constraints on SO2 and NOX from the EGU population as a whole on both a 

state and regional basis, EPA does not believe there is any credible scenario under which 

curtailment of individual plant operations would have the effect of shifting annual emissions to 

any given season. Although there may be some counter-examples, especially over the very shortterm, EPA believes as a whole these base-load units will continue to operate in as similar fashion 

given that they provide the lowest-cost electricity to the grid. Accordingly, EPA expects, and our 

IPM results indicate that these units will be taking concrete measures to reduce emissions 

throughout the year. As noted above, once these measures are in place, there are powerful market 

incentives for continuous implementation of those measures.

XII. Emissions Overestimated in EPA’s Base Case

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment:

EPA’s Concern that Emissions May Increase without CAIR is Baseless 

EPA conducted a rulemaking in 2005 that resulted in the emission levels achieved by CAIR 

being determined to be “better than BART.” It should be noted that it is emissions reductions 

that result in improvements in visibility. The specific acronym that is created by a government 

official does not improve air quality. Due to CAIR’s remand, EPA has refused to process many 

state SIPs, including Regional Haze SIPs, on the basis that EGU emissions could increase when 

CAIR goes away. However, EPA has produced no evidence that this could realistically occur. In 

fact, in EPA’s own analysis for the Transport Rule, EPA concluded that, without CAIR, the 

emissions in Georgia would be well below the levels allowed by CAIR due to emissions 

reductions required by the State. EPA cannot have it both ways. EPA cannot disapprove part of 

our Regional Haze SIP due to the uncertain status of CAIR while at the same time EPA is 

imposing emission budgets that are significantly lower than CAIR due to emissions reductions 

required by the State. Therefore, EPA should fully approve our Regional Haze SIP that was 

submitted to the agency more than two years ago. 

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA’s 2014 Base Case Does Not Account for Historic Emissions Reductions at Non BARTeligible Sources, Thereby Overestimating the Benefits from CSAPR 
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EPA relied on a base case that ignores SO2 emissions reductions that non-BART eligible sources 

have already achieved in response to other federal and state air programs and enforcement 

actions.101 In so doing, EPA gave CSAPR an artificial advantage over BART on prong 2 of the 

reasonable progress test in EPA‘s already skewed analysis, which evaluates Nationwide BART 

in the absence of CSAPR. 40 C.F.R. § 51.308(e)(3)(ii).

In assessing CSAPR as a potential BART alternative, EPA established the 2014 base case as its 

visibility baseline. EPA then used this base case to calculate the expected visibility reductions 

under “Nationwide BART” [FN 102] and the “Transport Rule + BART-elsewhere”[FN 103] over

and above the base case. See 76 Fed. Reg. 82,219, 82,224. As EPA recognizes, the 2014 base 

case is central to the analysis. See TSD at 12 (explaining that “[t]he cornerstone of [EPA‘s] 

modeling process was the 2014 base case modeling scenario, which contains emissions for 2014 

based on predicted growth and existing emissions controls”).

However, EPA‘s projected base case fails to provide a realistic basis for evaluating reliance on 

CSPAR in place of BART. The base case purports to include constraints on EGU emissions from 

the Acid Rain Program, the NOx SIP Call, New Source Performance Standards, Title V permits, 

any state laws and consent order requiring emission reductions, and any other permanent and 

enforceable binding reduction commitments.” 76 Fed. Reg. at 82224. [FN 104] However, it fails 

to accurately reflect emissions reductions at non-BART eligible sources from historic fuel 

switching decisions or failure to account for historic installation of scrubbers that were unrelated 

to CAIR. Likewise, the base case does not include emissions reductions already achieved under 

the CAIR program at non BART-eligible sources. To the extent that these emission reductions 

are permanent—i.e., will apply regardless of whether CAIR is replaced with another trading 

program—they should be reflected in the baseline. To the extent that CSAPR preserves these 

emissions reductions, they should be reflected in both the CSAPR and the BART + CSAPR 

scenarios described in Section VII.B, supra. 

For example, as explained in more detail in Tables 3-1 to 3-2 submitted as an attachment, in the 

following instances, EPA failed to account for historically low SO2 emissions due to pre-CAIR 

decisions to install scrubbers or switch fuel type [FN 105] at non-BART eligible sources in the 

CSAPR states in the 2014 base case — a failure that translated to higher than appropriate 

emissions in the Nationwide BART scenario. This failure also credited CSAPR with far greater 

emission reductions than it actually can be expected to induce.
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[FN 106] The emissions included for the base case were taken from the results of EPA‘s Integrated Planning Model 

for this proposal, 2014 basecase, available at http://www.epa.gov/visibility/actions.html. 

[FN 107] The emissions included for the 2014 Nationwide BART scenario were taken from the results of EPA‘s 

Integrated Planning Model for this proposal, National BART 2014 spreadsheet, available at 

http://www.epa.gov/visibility/actions.html. 

[FN 108] The historic emissions values were selected based on the highest emissions reported from 2003-2010. The 

data for the years 2006-2010 were the values EPA used in the CSAPR better than BART rulemaking to make its unit 

level allocations. See EPA, Technical Information and Support Documents, Technical Support Documents for the 

Final Cross-State Air Pollution Rule (CSAPR) and the Supplemental Notice of Proposed Rulemaking (SNPR), 

*Final CSAPR Unit Level Allocations under the FIP and Underlying Data, available at 

http://www.epa.gov/airtransport/techinfo.html. For the years 2003-2005, the historic emissions were generated from 

the Clean Air Markets website, http://camddataandmaps.epa.gov/gdm/index.cfm?fuseaction=emissions.wizard. 

These examples of EPA‘s failure account for historic emission decreases were selected by 

identifying all BART-eligible units where the SO2 emission rate modeled in EPA‘s “Nationwide 

BART” scenario was greater than 0.30 lb/MMBtu and where the historic emission rate, as 

reported in CAMD for 2010 or 2011, was less than the emission rate modeled. This provides a 

subset of the most egregious instances of EPA‘s failure to account for lower historic emission 

rates, and other examples may well exist throughout the model. 

Notably, three of the EGUs included in Table 14 above operate FDG scrubbers installed prior to 

1996. A B Brown Unit 2 installed an FGD in 1986 with a design SO2 removal efficiency of 90% 

(as reported on DOE EIA Form-860R) and operated during 2008 (the year with the highest SO2 

emissions during 2003-2010 time period) with a removal efficiency of 88.4% (as reported on 

DOE EIA Form 923). Clay Boswell Unit 2 installed an FGD in 1980 with a design removal 

efficiency of 83.2% (as reported on DOE EIA Form-860R) and operated during the maximum 

SO2 emissions year 2007 with a removal efficiency of 25.4% (as reported on DOE EIA Form 

923). B L England Unit 2 installed an FGD in 1995 with a design removal efficiency of 93% (as 

reported on DOE EIA Form-860R) and operated during the maximum SO2 emissions year 2003 

with an SO2 removal efficiency of 93% (as reported on DOE EIA Form-923). 

In each of these three examples, the FGD was installed many years before implementation of 

CAIR, and the units operated during 2003-2010 with annual SO2 emissions equal to or less than 

the maximum SO2 emissions reported in Table 14 above. Furthermore, in each case, both the 

design removal efficiency, and the actual operating SO2 removal efficiency for these EGUs are 

less than the 95% presumptive BART SO2 removal efficiency EPA has prescribed for National 

BART. Yet EPA has assigned SO2 annual emissions and emission rates in the Nationwide BART 

scenario that greatly exceed even the highest reported emission rates for the maximum SO2 
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emissions years when the FGDs operated at less than EPA‘s presumptive BART removal 

efficiency. 

[FN 101] EPA‘s base case also failed to take account of historic SO2 emission reductions at BART-eligible sources. 

The most egregious example of this failure is at units 1-3 of the Harrison Power Plant in West Virginia. Although 

these three units have operated wet scrubbers since 1995, EPA‘s base case estimated that each unit would emit SO2 

at a rate of 4.28 lb/MMBtu, a rate that is more than four times greater than the 0.14 lb/MMBtu (Unit 1), 0.10 

lb/MMBtu (Unit 2), and 0.11 lb/MMBtu (Unit 3) SO2 rate that each unit averaged over 2005-2010 according to 

information on CAMD. See EPA Scrubber and SCR Retrofit Data submitted to the Senate Committee on 

Environment and Public Works, available at 

http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=a0437dd3-b584-4796-9ad0-

926bb0dc3de9 (indicating that Harrison installed scrubbers in 1995). The failure to account for historic emission 

reductions result at Harrison Units 1-3 alone overstated SO2 emissions in the base case by 263,289 tons. Any failure 

to properly account for long-standing emission control technology and historically low emissions in the base case 

could impact the technology assumed in the BART and CSAPR scenarios, which in turn affects how the IMP model 

will predict emissions at other sources and ultimately visibility impairment at the Class I areas. Rather than point out 

all such errors, these comments focus on problems in the base case at units that are not subject to BART, as in this 

situation only the Transport Rule + BART-elsewhere scenario, and not the Nationwide BART scenario, has an 

opportunity to make up for EPA‘s error. However, EPA must review the assumptions in its base case to ensure 

accurate modeling. 

[FN102] The Nationwide BART scenario is defined in footnote 24, supra. 

[FN103] The Transport Rule + BART-elsewhere scenario is defined in footnote 25, supra. 

[FN 104] It is unclear whether EPA‘s modeling has taken into account all consent decrees as the modeling input 

spreadsheets do not break down limits imposed at each source. EPA must apply the consent decrees and must make 

it clear that it has. Failure to do so renders the modeling arbitrary. 

[FN 105] It is safe to assume that the historic 2003-2010 SO2 emissions were not constrained by CAIR because the 

emission rates and annual emissions for the post-CAIR years 2006-2010 were consistent with the rates and annual 

emissions for the pre-CAIR period viewed, 2003-2005. 

Commenter: National Parks Conservation Association on behalf of numerous 

organizations:

Comment:

EPA purports only to show that CSAPR is better than BART nationwide. Neither EPA nor 

Georgia has attempted to demonstrate that CSAPR is better than BART for Georgia. The 

existing analyses demonstrate that CSAPR does not provide greater emission reductions at 

BART eligible EGUs in Georgia that likely cause or contribute to visibility impairment, and 

therefore will not achieve greater than reasonable progress at implicated Class I areas.

For example, the 104 MW Kraft Unit 3 is 90 km from Wolf Island Wilderness, and within 300 

km of Cape Romain Wilderness and Okefenokee Wilderness as well. This unit has no controls 

for NOx or SO2. As controlled by BART, and utilizing modern technology, its emissions could 

be reduced by more than 90% (NOx) and 99% (SO2). By contrast, CSAPR will require only 

reductions of around 79% for each pollutant, based on 2010 emissions. Similarly, Yates Units 6 

and 7, each 404 MW and both operational in 1974 are 167 km from Cohutta Wilderness. Yates is 

also within 300 km of Great Smoky Mountains National Park, Joyce Kilmer-Slickrock 

Wilderness, Shining Rock Wilderness, and Sipsey Wilderness. These units have combustion 

controls for NOx but no add-on NOx or SO2 controls. Under BART, they would be candidates 

for 90 and 99% control of NOx and SO2, respectively. Under CSAPR, assuming these units do 

not choose to trade instead of reducing emissions, NOx will be reduced between 63-66% from 

2010 levels and SO2 about 87% at each unit. 
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The same pattern holds for the other BART-eligible EGUs that have not yet installed SCR or 

scrubbers – CSAPR requires fewer emission reductions from existing emissions than would 

BART. However, several EGUs have already installed these add-on controls and benefited from 

significant emission reductions, including Bowen Units 1-4, Wansley Units 1 and 2, and 

Hammond Unit 4. At these facilities – with just one exception – CSAPR allocations are 

significantly higher than necessary for those units – often allowing double or triple the existing 

emissions. In one instance, the CSAPR allocation exceeds six times the 2010 actual emissions at 

the facility. The clear danger here is that these excess and unnecessary allocations have gone 

unaccounted for in EPA’s baseline and will likely be traded to facilities without existing 

controls, decreasing the likelihood that emission reductions at the sources most impacting Class I 

areas will actually be realized.

EPA Response: 

Section V.B of the Transport Rule Preamble (76 FR 48223) explains why EPA assumed no 

CAIR related reductions in its base case. For this rulemaking, EPA starts from the same position. 

That is for both scenarios – “Nationwide BART” and “Transport Rule + BART” – previous SO2 

emission reductions are not implicitly assumed to continue indefinitely into the future simply 

because they occurred in the past. For example, both Transport Rule and non-BART affected 

sources have the inherent flexibility to switch back to a higher sulfur coal. EPA disagrees with 

the commenter’s suggestion that future emission profiles should be pegged purely to historic 

operation, ignoring already occurring or anticipated changes in policy and market drivers.

Under the “Transport Rule + BART” scenario, sources are projected to operate existing controls 

due the economic incentives created under the transport rule. The economic incentives of the rule 

will also lead to a continuation of much of the coal switching that had previously occurred at 

units under CAIR. However, this is driven by the economic incentives of the Transport Rule, not 

a blanket assumption that a unit would continue to burn the same fuel that it had in the past. In 

fact, there are some units in the “Transport Rule + BART” scenario that switch to a higher sulfur 

coal from what they burned in the past. For instance, if another unit in the state installed a 

pollution control due to a consent decree and is providing emission reductions that contribute to 

compliance with the state’s emission budget, than a particular affected unit that had previously 

burned a low-sulfur coal may no longer find it economic to do so as demand for those 

allowances is reduced. EPA’s “Transport Rule + BART” as well as the “nationwide BART” 

scenario would reflect this flexibility for a source to switch to coal higher in sulfur than that 

which it historically consumed, and therefore there is no advantage given to CSAPR over BART 

in EPA’s analysis. 

The comment seems to fail to account for the fact that CSAPR only requires emission reductions 

at the state level. There are no unit level emission reduction requirements under CSAPR.

Because there are no unit level requirements under CSAPR, there are no CSAPR related 

reductions that should be programmed into the “Nationwide BART” analysis. In fact, doing so 

would directly contradict the market incentives and trading flexibilities on which CSAPR is 

based. For instance, as more BART affected units begin to reduce emissions; the expectation 

would be that the non-BART affected sources covered under CSAPR in that same state would 

reduce emissions less. That is, the market incentive for them to reduce emissions would be 

reduced as newly found emission reductions come from BART affected sources – reducing both 
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demand for allowances (and consequently the price) as well as the burden of complying with the 

CSAPR state budget. Therefore, the commenters suggestion that EPA assume that non-BART 

sources simply hold steady their emission reductions as BART-affected sources make emission 

reductions contradicts the behavior that would be an appropriate economic response. The 

consequence of EPA incorporating such an assumption would be to overstate the air quality 

benefit of “Nationwide BART” scenario.

Table 15 (of the comments) lists a series of BART unaffected units with “2003-2010 reported 

historic emissions from EIA Form-860”, selecting the highest reported value. The commenter 

then compares the selected reported historical values with EPA’s projected values for 2014 for 

the Base Case and Nationwide BART. The commenter’s calculations suggest a number of

misunderstandings and misinterpretations of the reported data, as well as the modeling, in the 

assertion that EPA’s modeling did not account appropriately for “historically reported low level 

of mandatory emission limits” hence the Base Case and the Nationwide BART model outputs 

have erroneously high emissions.

Historic emissions are a function of the sulfur content of the fuel used at a specific year and the 

level of dispatch, as well as whether an existing control operates or turned off. Reported historic 

emissions are not mandatory emission limits. Base Case and Nationwide BART modeled in this 

analysis reflect a no CSAPR/CAIR policy case where units with physically existing FGDs that 

were installed prior to a certain year were allowed to make an economic choice regarding the 

operation of their post-combustion controls. This ability is called having a dispatchable control. 

The rules for dispatchable scrubbers and SCRs on coal units were documented in the Proposed 

TR (see http://www.epa.gov/airmarkets/progsregs/epa-ipm/IPM_Update_Documentation.pdf). 

Rules for dispatchable scrubbers on coal units:

1. If the unit online year is 1990 or later then the scrubber will not be dispatchable. Such units 

are likely to be new units required to control.

2. If the unit is online before 1990 and if the scrubber is online in 1992 or earlier then the 

scrubber will not be dispatchable. These scrubbers were most likely built for a reason other than 

compliance with the Title IV Acid Rain Program.

3. If the unit is online before 1990 and if the scrubber is online in 1993 or later then the scrubber 

will not be dispatchable if it is mandated by NSR, state settlement or state-specific rule and the 

scrubber is online by the end of 2011.

4. If the criteria in (1–3) are not met, then scrubbers will be dispatchable. 

Rules for dispatchable SCR controls on coal units within the CAIR region but outside the SIP 

Call region:

1. If the unit online year is 1990 or later then the SCR will not be dispatchable. Such units are 

likely to be new units required to control.
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2. If the unit’s firing type is cyclone and the SCR is online in 1999 or earlier then the SCR will 

not be dispatchable. Such a control was most likely installed for compliance with the Title IV 

NOX Program or an earlier mandate.

3. If the unit is online before 1990 then the SCR will not be dispatchable if the SCR control is 

mandated by NSR, state settlement or state-specific rule and the control is online by the end of 

2011.

4. If the criteria in (1–3) are not met then SCR controls will be dispatchable.

EPA modeling does not intend to simulate historic emissions that actually occurred under certain 

environmental constraints and historic market conditions. EPA’s Base Case modeling reflects 

the level of emissions that would occur in the absence of CAIR and CSAPR; the Nationwide 

BART run reflects the emissions that would occur with the presence of BART only. EPA 

modeling uses various information from EIA Form-860, however, commenter misinterprets SO2 

emissions reported to EIA as “emission limits” or “mandatory limits.” These historical values 

are not emission limits but reported emissions that may differ year to year based on the least-cost 

optimization decisions a unit may make. In any modeling scenario or an actual historical year, 

the units are constrained by permit limits, accessible coal types and environmental rules in effect, 

allowing the unit to make a decision to operate a control or not, and switching to a higher S 

content coal or not and hence emitting less than their permitted limits. Furthermore, in most of 

the calculations, commenter uses 2010 reported emissions assuming 8760 hours of dispatch (i.e. 

100% availability or dispatch). IPM assumes 85% maximum availability for coal units based on 

data from NERC GADS (2001 to 2005) and AEO 2010 (see page 3-12 of IPM documentation for 

CSAPR at http://www.epa.gov/airmarkets/progsregs/epa-ipm/docs/v410/Chapter3.pdf

This inconsistency results in further discrepancy between commenters’ calculated values and 

EPA’s projected values.

In summary, units listed in Tables 15 are all non-BART affected units showing a correctly 

projected behavior of higher emissions compared to historically reported values. The units listed 

in Table 15 exhibit one or more of the following traits:

Do not have any controls and dispatch using a higher S content coal in EPA’s runs, properly 

constrained with the permit limits applicable to each unit. 

Have a scrubber operating with the historically reported removal efficiency using a higher S 

content coal.

Have a scrubber assigned as dispatchable based on the explanation provided above and does not 

operate the scrubber.

Page 44, footnote 104: Commenter asks clarifications regarding how consent decrees are 

modeled. All modeling inputs, including consent decrees and other environmental regulations 

and constraints were documented in detail with the CSAPR. Since the CSAPR better than BART 

analysis use previously documented modeling platform and runs, these are referenced in CSAPR.

http://www.epa.gov/airmarkets/progsregs/epa-ipm/transport.html

http://www.epa.gov/airmarkets/progsregs/epa-ipm/docs/v410/Chapter3.pdf

http://www.epa.gov/airmarkets/progsregs/epa-ipm/CSAPR/docs/DocSuppv410_FTransport.pdf
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Page 46: A B Brown Unit 2 is a BART unaffected unit with an existing scrubber operating with 

82% removal (as reported in 2007 EIA Form-860 which our NEEDS inventory was based). Clay 

Boswell Unit 2 does not have a scrubber in NEEDS, neither reported in 2007 EIA Form-860. 

However, Clay Boswell Unit 4 has a scrubber (and modeled as operating). Commenter likely 

mixed up Units 2 and 4. B L England does have a dispatchable FGD, meaning this is a 

physically existing FGD, however without CAIR or CSAPR the unit makes the economic choice 

of not operating its FGD while complying with all relevant environmental constraints.

1. Missing Mandatory Limits Reported to DOE/EIA

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA‘s failure to account for historic emission reductions is critically wrong where EPA ignored 

reductions required by mandatory emission limits that the plants themselves disclosed to the 

Department of Energy‘s Energy Information Administration. For example, at the following 19 

units included in Table 16, EPA failed to apply these mandatory limits, overstating the 

Nationwide BART scenario by 220,389 tons of SO2.
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By failing to take account of any emission reductions from pre-CAIR historic fuel switching 

decisions or installation of scrubbers, per the above examples, and for permanent changes 

prompted by CAIR in the base case at non-BART-eligible sources, EPA placed the “Nationwide 

BART” scenario at an arbitrary disadvantage, affording CSAPR undeserved credit for requiring 

emissions reductions on sources that were already achieving those reductions. Indeed, historic 

emissions are less than half of those modeled in the “Nationwide BART” scenario. Even where 

CSAPR achieves significant further reductions, it is fundamentally improper to compare CSPAR 

to a Nationwide BART scenario with excess emissions. This flaw renders EPA‘s analysis 

arbitrary.

EPA Response: 

See discussion above in RTC section [placeholder] on why EPA cannot rely on historical fuel 

switching decisions, and why some scrubbers have an economic decision on whether they would 

be “dispatchable” under some circumstances. 

EPA modeling uses various information from EIA Form-860, however, commenter misinterprets 

SO2 emissions reported to EIA as “emission limits” or “mandatory limits.” These historical 

values are not emission limits but reported emissions that may differ year to year based on the 

least-cost optimization decisions a unit may make. In any modeling scenario or an actual 

historical year, the units are constrained by permit limits, accessible coal types and 

environmental rules in effect, allowing the unit to make a decision to operate a control or not, 

and switching to a higher S content coal or not and hence emitting less than their permitted 

limits. Furthermore, in most of the calculations, commenter uses 2010 reported emissions 

assuming 8760 hours of dispatch (i.e. 100% availability or dispatch). IPM assumes 85% 

maximum availability for coal units based on data from NERC GADS (2001 to 2005) and AEO 

2010 (see page 3-12 of IPM documentation for CSAPR at 

http://www.epa.gov/airmarkets/progsregs/epa-ipm/docs/v410/Chapter3.pdf

This inconsistency results in further discrepancy between commenters calculated values and 

EPA’s projected values.

2. Need for More Current Emissions Basis for Comparison

Commenter: Kathryn M. Amirpashaie, PLC

Comment: 

A Comparison Between Actual 2010 Emissions And CSAPR Allocated 2014 Emissions For 

BART-Eligible Sources In Alabama, Mississippi, North Carolina, And South Carolina Reveals 

That CSPAR Has Received An Unfair Advantage In EPA’s Analysis. 

EPA’s modeling is flawed in that EPA used data from 2005 - over half a decade ago - to 

represent “current” visibility conditions at Class I areas. However, in order to accurately satisfy 

the first prong of the 308(e)(3) analysis as to whether CSAPR will result in visibility declining in 

any Class I area, EPA must compare present visibility to projected visibility under CSAPR. 

As applicable to this modeling, data from 2005 can in no way be considered “current.” Indeed, 

due to various CAA regulations and programs, as well as source-specific settlement agreements 

and other factors such as advances in renewable energy, current emissions at a number of sources 
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have significantly declined from their 2005 emissions levels. This is evidenced when one 

compares emissions data from 2005 with emissions data from 2010, the last full year for which 

quality-assured actual emissions data is available.[FN 16]. However; EPA’s “better-than-BART” 

analysis ignores these emissions reductions, which have already been achieved. These omissions 

operate to give CSAPR an artificial and unfair advantage over BART in EPA’s analysis. 

Thus, instead of using 2005 as the base year for making its visibility comparisons, in order to 

ensure greater accuracy, EPA should have based its modeling on the most current data, and 

compared projected emissions impacts with emissions impacts from 2010. The importance of 

using actual current data when conducting modeling is evidenced in the fact that emissions from 

a number of BART-eligible coal-fired EGUs were significantly lower in 2010 than their 

budgeted CSAPR allowances. [FN 17]

Ranajit Sahu is an expert who was retained by the Sierra Club to examine in detail the CSAPR 

allocations for SO2 and NOx at BART-eligible coal-fired EGUs in the states of Alabama, 

Mississippi, North Carolina, and South Carolina. With regard to each BART-eligible source in 

these four states, the expert compared CSAPR’s 2014 (i.e., 2014 and subsequent (“2014+”)) SO2 

and NOx allocations to actual emissions from these units for 2010 and found that emissions from 

a number of these sources was significantly lower in 2010 than their 2014+ CSAPR 

allowances.[FN 18] The results of these various comparisons are shown in the spreadsheet, 

entitled “Table A,” attached hereto as Exhibit 2, which is part of expert Ranajit Sahu’s report on 

Docket ID No. EPA-HQ-OAR-2011-0729, attached hereto as Exhibit 1. Ranajit Sahu’s report 

also provides a discussion of these findings, which we incorporate into these comments. See 

Exhibit 1. 

Because a number of these EGUs are emitting at less than their CSAPR allocations, the issue 

arises that when CSAPR “kicks in”, these sources will be permitted under their CSAPR budgets 

to emit pollutants at levels higher than they are currently emitting. This in turn may very likely 

result in a decline in visibility at nearby Class I areas. The fact that actual emissions from 2010 

for a number of these BART-eligible units are lower than the allocations under CSAPR also 

comes into play in their respect to BART. Specifically, it would be unreasonable to set BART 

emissions higher than actual emissions, therefore, source-specific BART for these units would 

likely be set equal to or lower than current, 2010 actual emissions, which are significantly lower 

than their corresponding CSAPR allocations. Therefore, EPA’s finding that under CSAPR, 

visibility would not decline in any Class I area is unsubstantiated and flawed. Also, once again, 

this demonstrate that EPA’s analysis of visibility improvements under source specific BART 

versus CSAPR was flawed because EPA greatly underestimated the emission reductions that 

would be achieved under source specific BART limits. Thus, it cannot be said that CSAPR will 

ensure greater reasonable progress towards the national goal of achieving natural visibility 

conditions in Class I areas by 2064 than BART. 76 Fed. Reg. at 82221.

[FN 16] Data available on EPA’s Clean Air Markets Division database(“CAMD”), accessible at 

http://camddataandmaps.epa.gov/gdm/index.cfm?fuseaction=emissions.wizard&EQW_datasetSelection= 

[FN 17] Compare data from EPA’s CAMD database, with EPA’s budgeted CSAPR allocations, available at 

http://www.epa.gov/airtransport/techinfo.html. 

[FN 18] The fact that many of these BART-eligible EGUs were achieving lower emissions rates in 2010 than those 

allocated for 2014+ under CSAPR is likely due to the fact that these sources have already been required to install 

pollution control technologies—including BART technologies such as scrubbers and selective catalytic reduction 
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systems—on these EGUs. As a consequence, not only does EPA’s modeling ignore the potential degradation to 

Class I areas that may result if these EGUs choose to increase their emission to their allocated levels under CSAPR, 

the modeling also underestimates the effects of the currently installed and operating BART controls at these units. 

Extending this conclusion to the remaining EGUs in Alabama, Mississippi, North Carolina, and South Carolina with 

2014+ allocations below their actual 2010 emissions, if those EGUs were also to install and operate similar BART 

controls, emissions from those facilities would likely be reduced to a greater degree than achievable by CSAPR. 

This would impact EPA’s determination made under 40 C.F.R. § 51.308(e)(3)(ii). 

EPA Response: This comment mischaracterizes EPA’s use of 2005 emissions. EPA uses 2005 

emissions, benchmarked to air quality in 2005 and surrounding years, as its base year for forecast 

future air quality for the year 2014. It is the year 2014 that serves as the basis for an “apples to 

apples” comparison of the two Transport Rule alternatives to nationwide BART scenario. 

Moreover, EPA questions the relevance of comparing individual unit 2010 emissions to 2014 

allowances. The appropriate comparison is whether visibility in Class I areas would be better 

under the Transport Rule than they would be under a nationwide BART scenario, and not 

whether in all cases year 2014 emissions for BART units would decrease from 2010 levels.

3. Need for Analysis of CSAPR Rule Changes

Commenter: Kathryn M. Amirpashaie, PLC

Comment: 

EPA’s Modeling Excludes From Consideration The Subsequent Revisions To CSAPR That 

Increase Emission Allocations For EGUs In Mississippi And South Carolina. 

EPA based its “better-than-BART” modeling and analysis on the state budgets prescribed in the final 

version of CSAPR, which was published on August 8, 2011. See 76 Fed. Reg. at 82227. However, 

since the publication of its CSAPR “better-than-BART” rule, EPA has weakened the CSAPR rule by 

providing EGUs in several states with larger pollution allocations. See Final Rule, Revisions to 

Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone, 

77 Fed. Reg. 10324 (Feb. 21, 2012); see also Direct Final Rule, Revisions to Federal Implementation 

Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone, 77 Fed. Reg. 10342 

(Feb. 21, 2012). Despite these revisions, EPA has failed to undertake any analysis demonstrating that 

CSAPR as revised is better than BART. As a result, EPA’s CSAPR “better-than-BART” rule 

underestimates the potential for degradation to Class I areas under CSAPR, while simultaneously 

overestimating the overall improvements in visibility due to CSAPR. 40 C.F.R. § 51.308(e)(3). 

South Carolina is one state for which EPA has issued revised SO2 allocations. Specifically, 

through its direct final rule, EPA is finalizing an 8,013 ton increase to South Carolina’s annual 

SO2 budgets. [FN 19] 77 Fed. Reg. 10342, 01345. These revisions are illustrated in Table 5 

below. Notably, 6,001 of the 8,013 annual tonnage increase in SO2 allocations this state comes 

from increases at BART-eligible sources. 
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20 Compare EPA, Revisions Rule Part II Unit-Level Allocations under the FIPs, available at 

http://www.epa.gov/airtransport/pdfs/Revisions%20Rule%20Part%20II%20UnitLevel%20Allocations%20under%20the%20FIPs.pdf, with EPA, Final CSAPR Unit Level Allocations under the 

FIP, available at http://www.epa.gov/airtransport/pdfs/UnitLevelAlloc.pdf 

In addition, subsequent revisions to CSAPR’s SO2 and NOx budgets allow Mississippi EGUs to 

emit even greater quantities of NOx during the ozone season. [FN 21] See 77 Fed. Reg. 10324, 

10328; see also 77 Fed. Reg.10342, 10344. Specifically, EPA has increased Mississippi’s statewide ozone season NOx budget by 2,154 tons per year and is finalizing an additional increase of 

115 tons per year. [FN 22] See 77 Fed. Reg. 10324, 10328; see also 77 Fed. Reg.10342, 10344. 

These revisions are illustrated in Table 6 below.
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23 Compare EPA, Final Revisions Rule Unit Level Allocations under the FIPs, available at 

http://www.epa.gov/airtransport/pdfs/Final%20Revisions%20Rule%20Unit%20Level%20Allocations%20under%20

the%20FIPs.pdf, with EPA, Revisions Rule Part II Unit-Level Allocations under the FIPs, available at 

http://www.epa.gov/airtransport/pdfs/Revisions%20Rule%20Part%20II%20UnitLevel%20Allocations%20under%20the%20FIPs.pdf, and with EPA, Final CSAPR Unit Level Allocations under the 

FIP, available at http://www.epa.gov/airtransport/pdfs/UnitLevelAlloc.pdf. 

Despite the significant increases in allocations for South Carolina’s SO2 emissions and 

Mississippi’s ozone season NOx emissions, EPA never modeled how these increased emissions 

would impact visibility at nearby Class I areas. EPA also did not compare the visibility impacts 

under the revised CSAPR allocations to visibility conditions under BART for these Class I areas. 

As a result, EPA has failed to show that visibility will not decline in any Class I area due to the 

application of CSAPR. 40 C.F.R. § 51.308(e)(3)(i). EPA has also failed to show that there will 

be an overall improvement in visibility with CSAPR versus BART in light of these revisions. 40 

C.F.R. § 51.308(e)(3)(ii). As a result, there is no basis for concluding that CSAPR will be “better 

than BART” under the revised versions of CSAPR.
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[FN 19] EPA’s spreadsheets setting forth CSAPR’s Unit Level Allocations contain discrepancies. That is, EPA’s 

spreadsheet containing “Part II Revised Allocations” shows a difference in allocations of 7,852 tons, whereas EPA’s 

Direct Final Rule indicates an increase of 8,013 tons. Regardless of this discrepancy, these allocations are 

significantly above what source specific BART limits would impose for these units. 

[FN 21] Mississippi is subject to CSAPR’s requirements during the ozone season only.

[FN 22] EPA’s spreadsheets setting forth CSAPR’s Unit Level Allocations contain discrepancies. That is, EPA’s 

spreadsheet containing “Revised Allocations” show a difference in allocations of 2,111 tons, whereas EPA’s 

Revised Rule states that the state’s allowances were increased by 2,154 tons. Similarly, EPA’s spreadsheet 

containing “Part II Revised Allocations” shows a difference in allocations of 112, whereas EPA’s Direct Final Rule 

indicates an increase of 115 tons. Regardless of this discrepancy, these numbers are significantly above what source 

specific BART limits would impose for these units. 

Commenter: Earthjustice on behalf of other organizations

Comment: 

Since the publication of its CSAPR “better-than-BART” rule, EPA has weakened the CSAPR 

rule by providing several states with larger pollution allocations. EPA has yet to undertake any 

analysis demonstrating that CSAPR as revised is better than BART. 

Commenter: Earthjustice/Texas

Comment:

EPA Failed to Demonstrate That CSAPR is better than BART because its Modeling and 

Assumptions are Flawed

Second, EPA’s modeling is flawed because it fails to incorporate revisions to CSAPR that 

significantly increase the emission allowances of Texas EGUs. The modeling thus overestimates 

the visibility benefits of CSAPR. These flaws in EPA’s modeling arbitrarily and capriciously tip 

both sides of the scale in favor of a determination that CSAPR is “better than BART.” See, e.g., 

State Farm, 463 U.S. at 43. In addition, there are a number of other problems with EPA’s 

modeling more fully discussed in the overarching comments on the proposed rule which we 

incorporate by reference.15 

The flaws in EPA’s modeling are particularly noteworthy and problematic in Texas, because 

even under this skewed modeling, EPA concludes that CSAPR is just barely “better than 

BART.” According to EPA, visibility at Big Bend and Guadalupe Mountains on the 20% best 

days would be the same under CSAPR and BART. Technical Support Document for 

Demonstration of the Transport Rule as a BART Alternative (“TSD”), at 34, Table 3-5, Docket 

No. EPA-HQ-OAR-2011-0729TSD. And under EPA’s flawed modeling, on the 20% worst days, 

visibility at Big Bend and Guadalupe Mountains would be just 0.1 dv better under CSAPR 

compared to BART. Id. Consequently, a realistic and supportable set of modeling assumptions

would likely show that CSAPR is not “better than BART,” as required by 40 C.F.R. 

§51.308(e)(3).

Commenter: Earthjustice/Texas

Comment: 

EPA Overestimated CSAPR’s Visibility Benefits By Failing To Model Subsequent Revisions to 

CSAPR That Increased Texas’s SO2 and NOx Budgets

EPA’s proposed rule also overstates CSAPR’s visibility benefits in Texas because it does not 

reflect revisions to CSAPR that significantly increase the SO2 and NOx budgets of Texas EGUs. 

See 77 Fed. Reg. 10324, 10327–28 (Feb. 21, 2012). EPA based its modeling and analysis on the 
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SO2 and NOx budgets allocated to Texas EGUs under the final version of CSAPR published on 

August 8, 2011. See 76 Fed. Reg. at 82227. However, EPA’s subsequent revisions to the SO2 and 

NOx budgets under CSAPR would allow Texas EGUs to emit significantly greater quantities of 

SO2 and NOx. Specifically, EPA increased Texas’s state-wide SO2 budget by 50,517 tons per 

year and its annual NOx budget by 1,375 tons per year. EPA, Final Revisions Rule State Budgets 

and New Unit Set-Asides TSD, at 3 (Feb. 2012) (Exh. 8). This results in a 21% increase in 

Texas’s annual SO2 budget compared to the initial Texas annual SO2 budget modeled by EPA. 

Compare id., with 76 Fed. Reg. at 48262, 48269. Every BART eligible EGU in Texas received 

increased unit-specific SO2 or NOx allocations under the revisions, as illustrated in Table 2 

below.[FN 17] 
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The proposed rule excuses this failure to model the CSAPR revisions by stating that the

increases in SO2 and NOx emissions are insignificant because overall SO2 and NOx emissions

will still decrease and CSAPR would still be “better than BART” on average at all Class I areas

across the United States. 76 Fed. Reg. at 82227; TSD at 61–64. However, EPA never discussed

how the increased SO2 and NOx emissions from Texas EGUs would impact visibility at Big

Bend, Guadalupe Mountains, and the other Class I areas most impacted by Texas EGUs. EPA

also did not compare the visibility impacts under the revised CSAPR allocations to visibility

conditions under BART for these Class I areas. Therefore, there is no basis for concluding that

CSAPR will be “better than BART” under the revised version of CSAPR. EPA’s failure to 

model the revised CSAPR allocations are most significant in Texas.

Several states received increased SO2 and NOx budgets under the revisions, but no state received

an increase in its emissions budget as large as the increase Texas received. Texas EGUs will be

permitted to emit an additional 50,517 tons of SO2 annually under the revisions, while no other

state received an increased annual SO2 budget of greater than 10,000 tons. Exh. 8 at 3–4. As a

result of additional pollutants emitted due to Texas’s disproportionate increase in its SO2 budget

under the revisions, Big Bend, Guadalupe Mountains, and nearby Class I areas impacted by

Texas EGUs will face increased visibility impairment that was never analyzed by EPA. EPA 

cannot determine that CSAPR is better than BART in Texas and warrants a partial FIP until EPA

has considered what CSAPR actually and currently requires.

In sum, EPA’s “better than BART” determination for CSAPR is based on faulty methodology 

and modeling that tips both sides of the scale in favor of a finding that CSAPR is “better than 

BART.” EPA overestimates the likely emissions reductions and visibility benefits of CSAPR for 
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Texas EGUs, while simultaneously underestimating the emissions reductions and visibility 

benefits of BART controls under the RHR. Such a skewed “better than BART” analysis is 

arbitrary and capricious and violates the RHR’s required demonstration that a BART alternative

makes greater reasonable progress toward achieving the 2064 natural visibility goal. See State

Farm, 463 U.S. at 43; Util. Air Regulatory Grp., 471 F.3d at 1340; 40 C.F.R. §

51.308(e)(2) & (e)(3).19

[FN 17] Moreover, EPA recently proposed additional increases to Texas’s NOx budget. See 77 Fed. Reg. 10350 

(Feb. 21, 2012). These additional proposed increases, which are not reflected in Table 2, would increase the state’s 

annual NOx budget by an additional 2,731 tons and its ozone season NOx budget by 1,142 tons. Exh. 8 at 4.

[FN18] Compare EPA, FIP Unit Level Allocations with Final Revisions to CSAPR (Feb. 2012) (Exh. 9), with EPA, 

Final CSAPR Unit Level Allocations under the FIP (Aug. 2011) (Exh. 10).

EPA Response: 

Please see the technical memorandum to the Docket entitled “Docket ID No. EPA-HQ-OAR2011-0729: Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific 

Best Available Retrofit technology (BART) Determinations, Limited SIP Disapprovals, and 

Federal Implementation Plans” that describes additional sensitivity analysis that take into 

account changes to the Texas and George budget allocations.

XIV. EPA’s Proposed Limited State Implementation Plan (SIP) 

Disapprovals and Proposed Federal Implementation Plan (FIP) in Light 

of the Stay of CSAPR by the D.C. Circuit

Commenter: Michael Olive, Progress Energy

Comment:

In light of the D.C. Circuit Court's stay of CSAPR, the basis for EPA's SIP disapproval and FIP

promulgation - that CAIR has been replaced by CSAPR - is no longer valid. EPA's justification

for its proposed action is the anticipated replacement of CAIR with CSAPR. 76 Federal Register

at page 82229 ("proposing [this action] because of the termination of CAIR"). Therefore, as long 

as CAIR remains in place, EPA's proposal lacks a sound legal or rational basis. 

Procedurally, Progress Energy recognizes that action on regional haze implementation plans is

long overdue. The deadline for agency action on regional haze implementation plans was

January 20 11 and the SIPs of the three states in which Progress Energy operates have been

pending with EPA in final form for 18 months or more, depending on the state. Progress Energy 

urges EPA to approve regional haze SIPs of those states, including North Carolina, South 

Carolina, and Florida, that chose to rely on CAIR to satisfy EGU BART obligations for S02 and 

NOx. If and when the Court upholds CSAPR, EPA could proceed with a "SIP Call" pursuant to 

Clean Air Act (CAA) Section 110(k)(5) to prepare for CSAPR's implementation. Approving 

currently valid CAIR-based SIP provisions and issuing a SIP Call when and if necessary would 

be in keeping with the CAA's cooperative federalism design.

Commenter: Cathy S. Woollums, MidAmerican Energy Holdings Company
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Comment:

MidAmerican believes EPA should, for the most part, fully approve the SIPs submitted by states 

that relied on the imposition of either CAIR or CSAPR-related controls as an interim measure to 

ensure that those states (or EPA for that matter) are not subject to further litigation as a way to 

force the requirement to act on regional haze on a more arbitrary schedule. It appears that EPA 

has attempted to address this issue in many states through the publication of limited approvals in 

at least 12 states on February 28, 2012; in the case of Iowa, that proposal is at 77 Fed. Reg. 

11974. While MidAmerican will submit comments separately on that proposal, we support such 

efforts to bring additional certainty to the Iowa regional haze SIP.

Commenter: Luminant

Comment:

Because CSAPR has been stayed by the U.S. Court of Appeals for the D.C. Circuit, leaving CAIR in 

place, EPA cannot at this time go forward with its proposals to 1) revise 40 C.F.R. § 51.308(e)(4) to 

replace CAIR with CSAPR, 2) disapprove Texas’s regional haze SIP revision that relies on CAIR, 

and 3) impose a FIP in its place. Instead, EPA should issue a parallel regulation that makes CSAPR a 

“BART alternative” available to a State if and when CSAPR survives judicial scrutiny and becomes 

effective in the State. EPA proposes to disapprove these SIPs because “CAIR and the CAIR FIP 

requirements . . . will only remain in force to address emissions through the 2011 control period and 

thus CAIR cannot be relied upon in a SIP as a substitute for BART or as part of a long-term control 

strategy.” Id. at 82,221. EPA repeatedly refers to “the fact that the Transport Rule has now replaced 

CAIR” to support its proposed rulemaking and to “avoid[] the near-term need for additional 

administrative steps on the part of [the affected] states.” Id. But CSAPR has not replaced CAIR, as 

EPA expected. CSAPR has been stayed, and CAIR remains in effect. For this reason alone, EPA 

cannot go forward with the proposed rule as issued.

Commenter: Ken Kramer, Director, Lone Star Chapter, Sierra Club

Comment: 

At current, CSAPR has been stayed by the D.C. Circuit Court. With the current uncertainty 

surrounding the implementation of CSAPR, the EPA cannot rely on compliance with this rule to 

satisfy the requirements of BART. In conclusion, we feel EPA's proposed alternative to the 

BART rule is inadequate and will not sufficiently reduce haze from Class I areas. In this case, it 

is not acceptable to rely on CSAPR to achieve the goals of the Rule for the previously mentioned 

reasons. We urge the EPA to revise the Rule to ensure that pollution sources of Class I areas are 

required to make reductions of emissions that reflect the pollution reducing abilities of the best 

available pollution controls. Visitors to Big Bend and Guadalupe Mountains National Parks, and 

all Texans, deserve the full clean air benefits of the Regional Haze Rule. 

Commenter: Mark R. Vickery, Texas Commission on Environmental Policy

Comment:

The EPA should withdraw the proposed rule or re-propose after resolution of the CSAPR 

litigation2, due to the District of Columbia (D.C.) Circuit Court of Appeals’ grant of a stay of 

CSAPR. The proposed rule is insupportable given that the CSAPR is not currently in effect. 

Until the court issues its opinions, it is inappropriate at this time for EPA to issue a FIP to 

incorporate CSAPR as an alternative to BART, or to call on states to revise their regional haze 

SIPs if sources cannot comply with the transport rule programs. Once the court issues its 
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opinion, the EPA should provide all stakeholders the opportunity to review and comment on the 

impact of the court’s opinion regarding the legality of the CSAPR on the proposed rule. 

In addition, the proposed limited disapprovals are inappropriate since they do not recognize that 

CAIR was, and remains, legally effective until the EPA replaces it as ordered by the D.C. 

Circuit. The EPA should provide for limited approvals for all states that legally relied upon 

CAIR as an element of their BART analysis for the period of time that states were legally 

entitled to do so. 

Instead, the EPA should provide for limited approvals for all states that relied upon CAIR as an 

element of their BART analysis. Limited approvals are necessary to assure both states and 

sources that their reliance upon the CAIR was, and remains, valid during the period when CAIR 

remains legally effective. Although the D.C. Circuit issued an opinion finding that CAIR did not 

comply with the Federal Clean Air Act (FCAA), neither states nor sources should be penalized 

for their compliance with the CAIR while it was, and still remains effective. In fact, states were 

legally obligated to comply with CAIR. Upon the EPA’s request, the D.C. Circuit agreed to 

revise its opinion vacating the CAIR, substituting a remand order instead, obligating sources and 

states to implement CAIR until the EPA fully complies with the remand order. Limited 

approvals for all states that relied upon CAIR as an element of their BART analysis is 

appropriate to give full effect to the emission reduction requirements and air quality planning

obligations that were made pursuant to the requirements of CAIR. Limited disapprovals unfairly 

penalize sources and states by failing to acknowledge states’ compliance with the FCAA air 

quality planning requirements, CAIR, and the regional haze rule.

Commenter: Kathryn M. Amirpashaie/Sierra Club

Comment: 

CSAPR is currently the subject of a legal challenge, and the D.C. Circuit Court of Appeals has 

stayed implementation of the rule. See Order, EME Homer City Generation, L.P. v. EPA, No. 11-

1302 (D.C. Cir. Dec. 30, 2011). Unless the stay is lifted, EPA cannot rely on CSAPR either to 

approve State Implementation Plans (“SIPs”) or finalize Federal Implementation Plans (“FIPs”) 

that fail to apply site-specific BART requirements. 

According to the RHR, a state or EPA may only implement an emissions trading program as a 

BART-alternative if the BART-alternative achieves greater reasonable progress than BART. 

Util. Air Regulatory Group v. EPA, 471 F.3d 1333, 1335–36, 1340 (D.C. Cir. 2006); 40 C.F.R. § 

51.308(e)(2) & (3). In order to ensure greater reasonable progress, the BART-alternative must 

include enforceable emission limitations and standards that operate to improve visibility across 

affected Class I areas without a decline in visibility in those areas. 40 C.F.R. § 51.308(e)(2) & 

(3). Thus, in order to constitute a permissible BART-alternative, an emissions trading program 

must be valid, in effect, and result in actual emissions reductions. 

Here, because the D.C. Circuit has stayed CSAPR, the rule currently has no legal effect and, 

therefore, is not a binding legal requirement on states or covered sources. [FN11] CSAPR 

currently requires no emission reductions and imposes no emission limits and, thus, can in no 

way ensure greater reasonable progress than BART. See Util. Air Regulatory Group, 471 F.3d at 

1340. 
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Even if CSAPR is ultimately upheld, the final layout of the rule is presently unknown. For one, 

there is a chance that CSAPR may be affirmed only in part. In addition, EPA itself may 

significantly weaken the rule - EPA has already proposed and finalized revisions to CSAPR’s 

unit-specific allocations which increase the budgeted NOx and SO2 allocations for a number of 

EGUs in a number of states. See Final Rule, Revisions to Federal Implementation Plans To 

Reduce Interstate Transport of Fine Particulate Matter and Ozone, 77 Fed. Reg. 10324 

(February 21, 2012); see also Direct Final Rule, Revisions to Federal Implementation Plans To 

Reduce Interstate Transport of Fine Particulate Matter and Ozone, 77 Fed. Reg. 10342 

(February 21, 2012). Because the final requirements under the rule are presently unknown, EPA 

can make no such finding that CSAPR will achieve greater reasonable progress to natural 

visibility conditions than BART. 

In short, neither CSAPR (nor its predecessor CAIR) can serve as a valid BART-alternative at this 

time. In contrast to RHR and its BART requirements, CSAPR does not guarantee emission 

reductions, or even prevent emission increases, at plants that cause or contribute to visibility 

impairment at Class I areas. EPA’s reliance on CSAPR as a “better than BART” alternative is 

premature at best. Thus, a final rule that relies on CSAPR (or CAIR) to exempt Alabama, 

Mississippi, North Carolina, and South Carolina EGUs from individual BART determinations 

would violate the RHR since there can be no assurance that CSAPR will achieve greater 

reasonable progress towards natural visibility conditions in Class I areas than source-specific 

BART. [FN12] 

[FN11] Even if the D.C. Circuit upholds CSAPR, EPA will have likely already issued its proposed regional haze 

plans for Alabama, Mississippi, North Carolina, and South Carolina. See Consent Decree, Nat’l Parks Conservation 

Ass’n v. Jackson, No. 1: 11-cv-01548 (ABJ) (D.D.C. Nov. 9, 2011) (EPA must propose its action on the regional 

haze plan for these states by February 15, 2012, with a final rule by June 15, 2012). 

[FN12] Instead, EPA must propose and issue FIPs for these states that require a full, case-by-case BART analysis at 

every BART-eligible EGU within each state. See, e.g., 40 C.F.R. § 51.308(e)(1)(ii)(A) & Pt. 51, App. Y (BART 

determination must be based on a case-by-case analysis of the best available controls for each source); see also Util. 

Air Regulatory Group, 471 F.3d at 1335–36 (describing the process for determining BART). 

Commenter: Earthjustice on behalf of a number of organizations 

Comment:

EPA cannot rely on CSPAR as a BART alternative because CSAPR‘s future is uncertain. 

CSAPR is the subject of a legal challenge, and on December 30, 2012, the D.C. Circuit Court of 

Appeals issued an order staying implementation of the rule. See Order, EME Homer City 

Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Dec. 30, 2011). EPA cannot finalize a betterthan-BART rule and several implementing FIPs on the strength of a regulation that has been 

temporarily enjoined and that is therefore not in effect. 

To reduce the air pollution that contributes to haze, the CAA requires each state to include in its 

SIP “a requirement” that certain major stationary sources “shall procure, install, and operate . . . 

the best available retrofit technology.”18 CAA § 169A(b)(2)(A), 42 U.S.C. § 7491(b)(2)(A); 40 

C.F.R. § 51.308(e). As discussed above, substituting a trading program for BART requirements 

is contrary to the statute, but to the extent EPA seeks to rely on an “alternative” program in place 

of BART, that program must constitute a “requirement” as well. So long as CSAPR is stayed, it 

cannot qualify as a requirement that could apply in place of BART. 
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Further, all elements of any FIP imposed by EPA must be enforceable. See CAA §§ 110(a)(2)(A), 

(C), 42 U.S.C. §§ 7410(a)(2)(A), (C) (requiring haze plans to include “enforceable emissions 

limitations” and “to provide for the enforcement of” all adopted measures in the plan). Thus, EPA 

cannot rely on CSAPR while a stay renders the program‘s requirements unenforceable.

Given the pressing need to finalize regional haze plans around the country and to put all states on 

course to achieving Congress’ visibility goals, which have now languished for decades, it is 

reckless for EPA to propose reliance on CSAPR in place of BART. Unless the program is upheld 

in its entirety, EPA will be obliged to revisit the many plans that seek to rely on CSAPR. Even if 

CSAPR is upheld, it is unclear how long it will take for ongoing litigation to play out in the 

Courts, and in the meantime, haze plans in as many as 28 states could be stalled because they 

rely on CSAPR as a substitute for BART. For this practical reason alone, EPA should abandon 

its “better than BART” approach and associated FIP proposals.

Commenter: Earthjustice/Texas

Comment:

CSAPR also cannot serve as a valid BART-alternative in the Texas partial FIP because the D.C. 

Circuit has stayed CSAPR’s implementation. See Order, EME Homer City Generation,L.P. v. 

EPA, No. 11-1302 (D.C. Cir. Dec. 30, 2011) (Exh. 5). According to the RHR, states or EPA may 

only implement an emissions trading program as a BART-alternative if the BARTalternative 

achieves greater reasonable progress than BART. Util. Air Regulatory Grp., 471 F.3d at 1336, 

1340; 40 C.F.R. § 51.308(e)(2) & (e)(3). A BART-alternative must include enforceable emission 

limitations and a demonstration that the alternative will result in an average overall improvement 

in visibility across affected Class I areas without a decline in visibility at any Class I area. 40 

C.F.R. § 51.308(e)(2)(iii), (vi) & (e)(3). Consequently, an emissions trading program must be 

valid, in effect, and result in actual emissions reductions in order to constitute a permissible 

BART-alternative.

Here, however, because the D.C. Circuit stayed CSAPR, it currently has no legal effect and is 

not a binding legal requirement on states and covered sources.10 CSAPR plainly cannot ensure 

greater reasonable progress than BART if it is not in effect. See Util. Air Regulatory Grp., 471 

F.3d at 1340. Further, because CSAPR is stayed, the invalidated CAIR remains in effect in Texas 

and other states covered by CAIR. However, as EPA correctly recognized, regional haze SIPs 

that rely on the invalidated CAIR as a BART-alternative, such as Texas’s SIP, must be 

disapproved. 76 Fed. Reg. at 82221, 82229. For that reason, EPA proposed disapproval of 

Texas’s regional haze SIP to the extent it relies on CAIR to reduce SO2 and NOx emissions from 

BART-eligible EGUs in the state. See id. at 82221; Texas SIP at 9-1. The Conservation Groups 

support that disapproval. 

In short, neither CSAPR nor CAIR can serve as a valid BART-alternative at this time. 

Accordingly, EPA is left with one option: it must propose and issue a FIP for Texas that 

conducts a full BART analysis at every BART-eligible EGU in Texas and requires appropriate 

BART controls at every EGU that is subject to BART. See, e.g., 40 C.F.R. § 51.308(e)(1)(ii) & 

Pt. 51, App. Y (BART determination must be based on a case-by-case analysis of the best 

available controls for each source). A final rule that relies on CSAPR or CAIR to exempt BARTeligible EGUs in Texas from individual BART determinations would violate the RHR.
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Even if the D.C. Circuit upholds CSAPR, the court is not likely to make a decision until after 

EPA is scheduled to issue its proposed regional haze plan for Texas on May 15, 2012. See

Consent Decree, Nat’l Parks Conservation Ass’n v. Jackson, No. 1: 11-cv-01548 (ABJ), at 5

(D.D.C. Nov. 9, 2011) (EPA must propose its action on the regional haze plan for Texas by May

15, 2012, with a final rule by November 15, 2012) (Exh. 6). Issuance of Texas’s regional haze

plan is far behind schedule, and it is imperative that Congress’s mandate to remedy visibility

impairment at Class I areas not be further delayed due to uncertainty regarding a separate rule.

Congress first amended the Clean Air Act in 1977 to require the elimination of human-caused

visibility impairment at Class I areas, and EPA issued the RHR in 1999. 42 U.S.C. § 7491; 64

Fed. Reg. at 35714. However, due to a series of delays, EPA has not yet approved the regional

haze plan for Texas. See, e.g., Exh 6 at 2, 5.

Commenter: Kristin A. Henry, Sierra Club

Comment:

Unless the CSAPR Stay is Lifted, EPA Cannot Rely on CSAPR to Approve Indiana’s Regional 

Haze FIP

EPA cannot rely on CSAPR as a BART alternative because CSAPR’s future is uncertain. 

CSAPR is the subject of a legal challenge, and on December 30, 2012, the D.C. Circuit Court of 

Appeals issued an order staying implementation of the rule. See Order, EME Homer City 

Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Dec. 30, 2011). EPA cannot finalize the state of 

Indiana implementing FIP on the strength of a regulation that a court has temporarily enjoined. 

At the very least, EPA must await a final decision as to CSAPR’s legality and enforceability, as 

relying on a stayed rule could seriously complicate orderly implementation of the regional haze 

program. If EPA finalizes the proposed Indiana FIP, which relies on CSAPR, before the court 

issues a final decision, and CSAPR is ultimately struck down, the Indiana FIP would require 

revision, further pushing back the already delayed implementation of the Regional Haze Rule, 

including application of source specific BART at polluting old coal plants in Indiana. In light of 

the stay, CSAPR is not currently a viable BART alternative.

Indiana cannot rely on an enjoined regulation that may never take effect to provide emissions 

reductions that the state must make to “obtain its share of the emission reductions needed to meet 

the progress goal[s]” for Class I areas. See 40 C.F.R. § 51.308(d)(3).

Commenter: Utility Air Regulatory Group (UARG)

Comment:

EPA is also, however, proposing limited disapproval of the regional haze SIPs of those states 

that have relied on EPA’s CAIR = BART Rule and is proposing FIPs “to replace reliance on the 

CAIR requirements in these SIPs with reliance on the Transport Rule as an alternative to

BART.” Id. The proposed limited SIP disapproval and the proposed FIP promulgation are

neither necessary nor appropriate. EPA proposes to determine that SIPs that rely on CAIR do not 

fully satisfy all of the CAA’s regional haze SIP requirements. Id. at 82221, 82223, 82229. EPA’s 

stated reason for this proposed course of action is the D.C. Circuit’s remand of CAIR and its 

expected replacement by CSAPR. As UARG has stated in four other pending EPA rulemaking 

proceedings concerning proposed EPA actions on regional haze SIPs for four states that are 

subject to CAIR (and subject to CSAPR, as that rule was promulgated in 2011), CAIR remains in 

effect, and SIPs that rely on CAIR as a BART alternative are fully consistent with EPA’s 
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existing regulations. See 40 C.F.R. § 51.308(e)(4). EPA acknowledges as much in the proposed 

CSAPR = BART Rule. 76 Fed. Reg. at 82221 (“These states, fully consistent with the EPA’s 

regulations at the time, relied on CAIR requirements to satisfy the BART requirement and the 

requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress 

goals.”) (emphasis added). Because SIPs that rely on CAIR consistent with § 51.308(e)(4) 

comply with applicable law, EPA should promptly promulgate full and unconditional approval 

of those SIPs. The D.C. Circuit’s order staying CSAPR makes clear that, consistent with prior 

EPA statements to the court, CAIR will remain in place at least until the court’s resolution of the 

legal challenges to CSAPR. Moreover, it is reasonable to expect that, if the court were to vacate

CSAPR at the conclusion of its merits review in the litigation, CAIR likely would continue in

effect while EPA on remand addressed any necessary revisions to or possible replacement of

CSAPR in response to the court’s decision. Accordingly, even if there were a valid legal basis

for EPA’s proposed limited SIP disapprovals at the time EPA signed its proposed action to

partially disapprove CAIR = BART SIPs and promulgate CSAPR = BART FIPs prior to

issuance of the CSAPR stay (and there was not), no such basis even arguably exists at this time.

EPA easily could -- and should -- avoid the problems that would stem from its proposed

approach to replacing CAIR with CSAPR -- and constructively address appropriate state reliance

on the CAIR = BART and CSAPR = BART alternatives -- by modifying its proposed rule.

Rather than rewrite 40 C.F.R. § 51.308(e)(4)9 by “replacing the name of CAIR with the name of 

rather than rewrite 40 C.F.R. § 51.308(e)(4)9 by “replacing the name of CAIR with the name of 

the Transport Rule,” id. at 82229, EPA should promulgate its proposed new CSAPR = BART

regulatory text as a new, added paragraph within 40 C.F.R. § 51.308(e), to be available in

parallel with the existing CAIR = BART provision at § 51.308(e)(4), which should be retained.

Using this approach, EPA’s rules would simply provide that a state may rely on either CAIR =

BART or CSAPR = BART, or both, where CAIR and/or CSAPR, respectively, applies in that

state. With such a modification to its rules, EPA would make clear that CAIR = BART remains

operative and fully available to states, as it should be, while permitting any state on which EPA

imposed CSAPR requirements to adopt -- in lieu of or in addition to CAIR = BART, as the state

deems appropriate -- a CSAPR = BART SIP provision, which the state could adopt as a

contingency matter to become applicable if and when CSAPR becomes effective in that state. In 

addition, EPA should make clear that it will promptly propose and promulgate approval of all

SIP provisions that rely on CAIR = BART. Moreover, if CSAPR becomes effective in a state 

before the state has amended its SIP to incorporate the CSAPR = BART provision (if it wishes to

do so), then the state must be allowed a reasonable period of time to do so.

Commenter: American Electric Power (AEP)

Comment:

While in support of the proposed rule, AEP would recommend the agency make that 

determination as another paragraph in the regulation (40 CFR 51.308(e)(4)), leaving the current 

determination that CAIR equals BART untouched. While the agency did not know the CSAPR 

would be stayed at the time of the proposal, the agency could not have known that during the 

stay, CAIR remains in effect and the states that incorporated the use of CAIR for their reasonable 

progress method should be able to remain in effect. There is no need to disapprove SIPs that rely 

on CAIR for reasonable progress. By adding to the paragraph instead of substituting into the 

existing paragraph and once the court challenges are complete, the states would have the ability 
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to change from the paragraph endorsing CAIR to the paragraph endorsing CSAPR without 

having the SIP disapproved. Please consider the comments by UARG, EEI and our suggestion 

above.

Commenter: Duke Energy

Comment:

Duke Energy believes EPA’s proposed limited SIP disapproval and proposed FIPs is neither 

necessary nor appropriate, and should not be finalized. Because the CAIR will remain in place at 

least until the D.C. Circuit’s resolution of legal challenges to the CSAPR, and possibly longer 

depending on the outcome of the litigation, SIPs that rely on CAIR as a BART alternative are 

fully consistent with EPA’s existing regulations and should be promptly and unconditionally 

approved. 

To avoid the problems that would be created by EPA’s premature replacement of CAIR = BART 

with CSAPR = BART, EPA should keep CAIR = BART in place and promulgate a parallel 

CSAPR = BART regulation. This approach would provide that a state may rely on either CAIR = 

BART or CSAPR = BART, where CAIR and/or CSAPR, respectively, applies in that state. This 

approach would make clear that CAIR = BART remains operative and fully available to states, 

while permitting any state on which EPA imposed CSAPR requirements to adopt a CSAPR = 

BART SIP provision as a contingency matter, to become applicable if and when CSAPR 

becomes effective in that state. 

Additionally, if CSAPR becomes effective in a state before the state has amended its SIP to 

incorporate the CSAPR = BART provision (if it wishes to do so), then the state must be allowed 

a reasonable period of time to do so.

Commenter: Myra C. Reese, South Carolina Department of Health and Environmental 

Control (DHEC)

Comment:

DHEC objects to the EPA moving forward with this action given the December 30, 2011 stay of 

CSAPR by the U.S. Court of Appeals for the D.C. Circuit ("Stay") and without a final Regional 

Haze SIP approval.

The Stay directed the EPA to continue to enforce the Clean Air Interstate Rule (CAIR), which 

the same court had remanded to the EPA in December 2008. Since the EPA is continuing to 

implement CAIR, proposing to strike the regulations at 40 C.F .R. § 51.308( e)( 4) (2011) that 

allow sources to use CAIR to meet the requirements of the Regional Haze program is premature 

and will lead to regulatory confusion. South Carolina's CAIR sources have made significant 

commitment to continue to implement and operate CAIR controls. As a permitting authority, 

DHEC notes that the EPA's proposal to replace CAIR with CSPAR before the EME Homer City 

case is resolved will impair our ability to effectively implement the Regional Haze program in 

South Carolina. 

The EPA should fulfill its obligations to fully approve SIP submittals that have relied on CAIR. 

The EPA should also continue the rulemaking process for the technical determination that 

CSAPR is better than BART. However, the EPA should not remove the CAIR provisions at 40
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CFR § 51.308(e)(4) (2011) that effectuate the successful implementation of the Regional Haze 

program. To do so would be premature and result in a fundamental gap in the regulatory 

framework.

That the EPA is still considering this proposal even after the Stay is further evidence that the 

EPA is not adequately considering implementation of its rules, and the relationships among these 

rules. We have seen this problem in the 2010 Sulfur Dioxide (S02) National Ambient Air Quality 

Standard (NAAQS), the 2010 Nitrogen Dioxide (N02) NAAQS, the 1997 and 2008 Ozone 

NAAQS, and the many iterations of the Boiler MACT rule. The EPA's lack of attention to 

implementing its rules and fostering productive relationships with state regulatory partners is 

impairing its - and states’ - ability to effectively achieve environmental goals.

Commenter: Michael L. Krancer, Pennsylvania Department of Environmental Protection 

(DEP)

Comment:

DEP understands EPA's rationale for proposing a limited disapproval of the regional haze SIPs 

that have been submitted by states, including Pennsylvania, that rely on CAIR requirements to 

satisfy the BART requirements. We agree that once in place, the FIPs would satisfy the BART 

requirement, only apply to EOUs in the affected states and only apply to pollutants covered by 

the Transport Rule, and that they would also be part of satisfying the long-term strategy to 

achieve the reasonable progress goals established by the Class I area states. However, in a 

separate action on January 26, 2012, EPA proposed a limited approval of Pennsylvania's 

Regional Haze SIP revision. EPA found that the Commonwealth's revision to the plan meets 

Clean Air Act requirements of Section 110(a)(2) requirements relating to visibility protection for 

the 1997 8-hour ozone and fine particulate matter (PM2.5) standards and 2006 24-hour PM2.5 

NAAQS (77 FR 3984). In the January 26th proposal, EPA agrees with the Department's BART 

analyses and conclusions but does not "address the Commonwealth's reliance on CAIR to meet 

certain regional haze requirements" (77 FR 3997).

The DEP understands that once a state submits an approvable revision to its regional haze SIP 

incorporating the requirements of the Transport Rule, the EPA must withdraw the FIP for the 

Regional Haze Program. In the event that the D.C. Circuit Court remands all or a part of the 

Transport Rule to EPA, given the length of time it will take to finalize a revised Transport Rule, 

EPA should ensure that for the purposes of the Regional Haze SIPs, EPA can take final approval 

action on SIP revisions relying on CAIR for BART for EGUs. States can and should address the 

issue again in their five-year progress reports and SIP revisions due in 2018.

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment:

In proposed language of 52.580(a), EPA is proposing a limited disapproval of Georgia’s State 

Implementation Plan for Regional Haze submitted to EPA on February 11, 2010 (hereinafter 

referred to as Georgia’s Regional Haze SIP), to the extent that it does not meet the requirements 

of 51.308(d)(3) and (e) of the federal Regional Haze rule. On page 82229 of the preamble to the 

proposal, EPA states that it is doing so because “these states, fully consistent with the EPA‟s 

regulations at the time, relied on CAIR requirements to satisfy the BART requirement and the 

requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress 
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goals.” In Georgia’s Regional Haze SIP, EPD relied on CAIR to satisfy the BART requirement 

only for the BART exemption modeling for BART-Eligible EGUs and for the BART 

determination for Georgia Power’s Plant Bowen.

EPA’s stated basis for the SIP disapproval is that CAIR is no longer in effect and that it has been 

replaced by the Transport Rule. The fact of the matter is, at the close of the comment period on 

this proposal, due to the latest ruling by the D.C. Circuit Court of Appeals, CAIR is in effect and 

the Transport Rule is not. EPA should approve the Regional Haze SIPs on the basis of the 

previously adopted 2005 rulemaking that CAIR is “better-than-BART”.

EPA admits in the Preamble that states, “... fully consistent with the EPA’s regulations at the 

time, relied on CAIR requirements to satisfy the BART requirement and the requirement for a 

long-term strategy sufficient to achieve the state-adopted reasonable progress goals.” In fact, 

these regulations, notably 40 CFR 51.308(e)(4), are still in place today. EPA should leave 40 

CFR 51.308(e)(4) as it is and EPA should fully approve our Regional Haze SIP. 

Commenter: Paul Bailey, American Coalition for Clean Coal Electricity (ACCCE)

Comment:

EPA’s proposal to disapprove state RH SIPs that rely on CAIR for EGU BART, and its 

complementary proposal to impose RH FIPs under which compliance with CSAPR will be 

deemed to be compliance with EGU BART, now appears to be premature in light of the Court’s 

CSAPR stay decision. These EPA proposals were based on the assumption that CAIR would 

sunset and CSAPR would commence at the beginning of this year. That result did not happen, 

and CAIR remains in place. In fact, given the Court’s implicit determination in issuing the stay 

that Petitioners have a likelihood of succeeding with their claims on the merits, there is 

legitimate doubt as to whether CSAPR (at least in its present form) will ever go into effect. 

Thus, the best course right now is for EPA to maintain the status quo that compliance with CAIR 

constitutes compliance with BART for EGUs. EPA should take no action on its current 

CSAPR=BART proposal, nor should it disapprove RH SIPs that rely on CAIR, nor should it 

impose FIPs premised on the assumption that CSAPR will ultimately go into effect, at least until 

there is a Court decision clarifying the legal status of CAIR and CSAPR. With a Court decision 

seeming more likely than not by mid-year, this short delay does not result in prejudice to any 

party or any harm to the environment.

ACCCE is aware that the Court may ultimately uphold CSAPR on the merits and that, even if 

CSAPR is overturned on the merits; the Court may let it go into effect pending remand. And 

ACCCE is also aware that, given the North Carolina v. EPA decision, ultimately CAIR will have 

to be replaced or at least changed on remand, whatever the result of the CSAPR litigation. But 

those possible outcomes do not change the fact that the current status quo is that CAIR is in 

effect and CSAPR is not and that the future of EPA transport rulemaking is uncertain. In fact, if 

the Court overturns CSAPR on the merits based on a finding of fundamental flaws, and CSAPR 

never goes into effect, EPA may need a lengthy period of time to conduct a rulemaking to 

replace CSAPR, with CAIR likely remaining in place during this period.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment:
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The substantive basis for EPA's SIP disapproval and FIP promulgation - that CAIR has been 

replaced by CSAPR - is entirely absent because the D.C. Circuit Court has stayed CSAPR and 

left CAIR in place. EPA's sole justification for its proposed action is the anticipated replacement 

of CAIR with CSAPR. See, e.g., 76 Fed. Reg. at 82229 ("proposing [this action] because of the 

termination of CAIR"). Thus, as long as CAIR remains in place, EPA's proposal lacks a legal 

basis. CAIR will remain in place until the Court lifts the stay and EPA determines a path to 

properly implement CSAPR; as a practical matter, since CSAPR is an annual and seasonal 

program, the earliest possible start date is likely to be January 1, 2013.

Not only is EPA's proposed action clearly premature, but the fact that CAIR remains in place 

compels EPA to approve of Regional Haze SIPs relying on CAIR. This is a point EPA admits, 

explicitly acknowledging that SIP provisions that rely on CAIR to satisfy Regional Haze BART 

requirements are fully consistent with EPA's regulations and its "better-than-BART" 

determination for CAIR. See 76 Fed. Reg. at 82223; 82229. Similarly, amending 40 CFR § 

S1.308(e)(ii)(4) to remove CAIR as a "better-than-BART" alternative would be arbitrary and 

capricious so long as CAIR remains in effect given that EPA has continually affirmed its “betterthan-BART" determination for CAIRI In fact, given the factual circumstances and procedural 

posture, the only reasonable action for EPA to take is to approve pending SIP provisions that rely 

on CAIR to satisfy BART, and deal with CSAPR when and if it is upheld.

Commenter: Joe L. Citta, Jr., Nebraska Public Power District (NPPD)

Comment: 

The above-referenced EPA action, in summary, considers, among other things, proposing that 

the trading program in the Cross-State Air Pollution Rule ("CSAPR") achieves greater 

reasonable progress towards the national goal of achieving natural visibility conditions in Class 1 

areas than source-specific Best Available Retrofit Technology ("BART”) in those states covered 

by the CSAPR. In effect, EPA is proposing that the CSAPR trading program can be substituted 

for BART in CSAPR states. As EPA is aware, the United States Court of Appeals for the District 

of Columbia on December 30, 2011, ordered a stay of EPA's "Federal Implementation Plans: 

Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals; Final 

Rule" 76 Fed. Reg. 48,208 (August 8, 2011). The Court ordered the stay pending a resolution of 

petitions for review. In consequence of the stay, no party, including NPPD or the EPA, can 

predict whether all or portions of CSAPR will ultimately become effective, cannot predict what 

revisions will ultimately be made to CSAPR, and cannot predict the date when CSAPR may 

become effective, if at all. Therefore, NPPD requests that EPA withdraw the above-referenced 

action until the status of CSAPR is ultimately determined and or becomes effective.

Commenter: Michael P. Halpin, Florida Department of Environmental Protection

Comment:

As you are aware, CSAPR was stayed, and CAIR was reinstituted by the U.S. Court of

Appeals for the District of Columbia Circuit on December 30, 2011. Because CAIR is currently 

in place (and CSAPR is not) and it is unknown how or when the U.S. Court of Appeals will 

ultimately resolve the judicial challenges to CSAPR and CAIR, it is premature for EPA to 

replace its "CAIR is better-than-BART" rule with the "CSAPR is better-than-BART" rule. 

Accordingly, it is inappropriate for EPA to disapprove Florida's proposed Regional Haze SIP, 
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which relies on CAIR, which has been awaiting EPA's approval since August 2010, and which 

substantively meets Regional Haze goals.

Notwithstanding CAIR's legal deficiencies as a mechanism to control the interstate transport of 

pollutants as required by the Clean Air Act, EP A has previously determined that the pollution 

control projects which would be necessary to implement CAIR will adequately address Regional 

Haze. Since CAIR has been in effect, Florida utilities have expended millions of dollars to 

significantly reduce emissions of both S02 and NOx (i.e., the key compounds which contribute 

to the formation of fine particulate and impair visibility). Specifically, NOx emissions have 

decreased by approximately 64% or over 65,000 tons during the ozone season, and S02 

emissions have decreased by 60% or over 280,000 tons annually. These very real reductions 

have exceeded our projections in the proposed Regional Haze SIP and have resulted in Florida's 

visibility improving at a rate consistent with the nominal straight-line glide slope toward the 

2064 goal. As several additional CAIR-related pollution control projects are completed, the State 

will see further reductions. For example, new selective catalytic reduction systems at Gulf Power 

Crist Unit 6 and Orlando Utilities Commission Stanton Unit 1 are on pace for an orderly 

construction and startup, and extremely low emitting, natural gas fueled combined cycle 

generating units are under construction in place of residual oil-fueled units at the Florida Power 

& Light Cape Canaveral and Riviera Plants, and are soon to be started at Port Everglades.

Since these costly projects were undertaken to implement CAIR-related pollution control, since 

they are currently in place in Florida, and since the results demonstrate that they have been and 

continue to be a more-than-adequate mechanism for achieving reasonable progress towards 

restoring the natural visibility conditions in Florida's Class I areas, Florida requests that you 

approve its current proposed Regional Haze SIP. To the extent that the resolution of the current 

legal challenge to CSAPR necessitates a future SIP call, Florida would then work cooperatively 

with EPA-as contemplated under the Clean Air Act-to revise its approved Regional Haze SIP on 

a reasonable schedule.

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment:

Rather than codifying the CSAPR "better-than-BART" determination by replacing all references 

to CAIR in 40 CFR § 51.308(e)(ii)(4) with references to CSAPR, EPA should simply codify 

both its CAIR and CSAPR "better-than-BART" determinations side-by-side. This would ensure 

necessary flexibility in light of the uncertainty surrounding CAIR and CSAPR's status due to the 

stay and pending judicial review of CSAPR.

Commenter: Louis P. Pocalujka, Consumers Energy

Comment:

Currently, CSAPR is stayed pending the D.C. Circuit’s resolution of multiple petitions for 

review of the rule. As a result, if and when CSAPR will take effect remains an open question. 

Consequently, Consumers Energy believes that EPA should proceed with approval regional haze 

SIPs, like the State of Michigan’s, that rely upon CAIR. Even if there was a valid basis for 

EPA’s proposed limited SIP disapproval at the time EPA signed its proposed action on the 

December 23, 2011, no such basis exists at this point in time. CAIR remains in effect. Therefore, 

EPA should act to remove any ambiguity and affirm that EPA’s CAIR=BART rule remains a 
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valid and legally effective part of its BART regulations and that states may continue to rely on 

that provision. For states in the CAIR program, consistent with EPA’s regulations currently in 

effect, EPA should promulgate a full and unconditional approval of the states’ SIPs. 

In order to account for any change in the current legal status of CAIR or CSAPR, EPA should 

consider finalizing its determination that CSAPR=BART, while leaving current regulations 

regarding the CAIR=BART determination in place. This approach could obviate the need for 

additional rulemaking in the event CSAPR is upheld and/or the current stay is lifted. 

Commenter: John D. Kinsman, Edison Electric Institute (EEI)

Comment:

EEI also believes that EPA should approve regional haze SIPs that rely upon CAIR. Even if 

there was a valid basis for EPA‟s proposed limited SIP disapproval at the time EPA signed its 

proposed action on the December 23, 2011, no such basis exists at this time. Moreover, nothing 

has occurred which would prevent EPA from maintaining its previous position that the emission 

reductions required by CAIR are sufficient to satisfy BART. Under a previous decision of the 

D.C. Circuit Court of Appeals, CAIR remains in effect. Therefore, EPA should act to remove 

any ambiguity and affirm that EPA‟s CAIR=BART rule remains a valid and legally effective 

part of its BART regulations and that states may continue to rely on that provision. For states in 

the CAIR program consistent with currently effective EPA‟s regulations – including 40 C.F.R. § 

51.308(e)(4) – EPA should promulgate a full and unconditional approval of the state SIP. 

EEI believes that EPA needs to clarify its regulatory policies on transport programs that will 

satisfy BART obligations during the time that CSAPR remains under review by the D.C. Circuit 

Court of Appeals and thereafter. First, as per above, CAIR=BART regulations must remain in 

effect during the entire time that CAIR is legally effective. There is no reason that EPA should 

take any action through regulation or in settlement of litigation that would act to jeopardize this 

determination. Second, to account for any change in the current legal status of CAIR or CSAPR, 

EPA should finalize its determination that CSAPR=BART while leaving current regulations 

regarding the CAIR=BART determination in place. This approach could obviate the need for 

additional rulemaking in the event CSAPR is upheld and/or the current stay is lifted. Finally, 

EPA should consider other regulatory alternatives which would ensure that there is a smooth 

transition between CAIR=BART regulatory provisions and any follow-on transport rule that 

incorporates a similar determination. In all cases, EPA should ensure that states within the CAIR 

and CSAPR regions are able to rely on these transport programs to address BART obligations.

Commenter: Luminant:

Comment:

Texas submitted to EPA in February 2009 a regional haze SIP using CAIR as an alternative to BART 

requirements. CAIR is the interstate rule that is currently in effect, and EPA itself has determined 

that CAIR is better than BART. See 70 Fed. Reg. at 39,136–37. That determination was upheld 

by the D.C. Circuit. See Util. Air Regulatory Grp., 471 F.3d at 1340– 41. Therefore, EPA should 

approve Texas’s regional haze SIP, given that EPA provides no reason in the proposed rule that 

would justify disapproval besides the fact that Texas’s revision is based on CAIR. CAIR 

constituted EPA’s regulations “at the time,” and CAIR remains in place. Because Texas’s 
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submission undisputedly meets the current requirements of the Clean Air Act, EPA must approve 

it. 42 U.S.C. § 7410(k) (l). EPA should approve Texas’s submission now and not simply wait 

for the D.C. Circuit’s final decision on the legality of CSAPR. Texas’s SIP revision has been 

pending before EPA for three years, and thus EPA’s failure to act is a violation of the time 

constraints imposed by the statute. 42 U.S.C. § 7410(k). Further, even under the current 

expedited briefing schedule and argument, CSAPR’s legality will likely not be finally decided in 

2012 and may not be finally decided for years. Further, should the D.C. Circuit vacate or remand 

CSAPR on any grounds, it is a reasonable probability that the Court would leave CAIR in place 

to maintain its environmental benefits, as it did previously. Given the uncertain future of CSAPR 

and the fact that CAIR remains in place, EPA should approve Texas’s regional haze SIP, which 

is based on CAIR requirements. CAIR, as EPA has previously determined, is undisputedly better 

than BART and is available as a BART alternative under EPA’s current regulations, and EPA 

has identified no shortcomings in Texas’s SIP revision that would prevent approval. EPA should 

approve Texas’s regional haze SIP as submitted to EPA. 

If, at some point in the future, CSAPR becomes effective as to Texas, Texas can revise its SIP to 

utilize CSAPR as a BART alternative. Or, should CAIR be discontinued at some point in the future 

and not replaced with another regional trading program equivalent to BART, Texas would then 

conduct its BART analysis for EGUs in the State, perform updated modeling to determine which, 

if any, EGUs in the State “cause or contribute to any impairment of visibility” in a Class I area, 

and propose a revision to its SIP to address any such impairment. Thus, under any scenario, a 

FIP is premature and inappropriate at this time.

Commenter: Utility Air Regulatory Group (UARG)

Comment:

UARG does not believe that EPA’s proposed decision to issue FIPs to effect that policy choice is 

necessary or warranted, and UARG continues to oppose issuance of limited disapprovals of SIPs 

that have relied on CAIR as a BART alternative, for the reasons stated in its previous comments 

on proposed EPA actions with respect to implementation plans for individual states. (Comments 

of the Utility Air Regulatory Group on the U.S. Environmental Protection Agency’s Proposed 

Rule: Approval and Promulgation of Air Quality Implementation Plans; State of Tennessee; 

Regional Haze State Implementation Plan, EPA Docket ID No. EPA-R04- OAR-2009-0786-

0022 (July 11, 2011); Comments of the Utility Air Regulatory Group on the U.S. Environmental 

Protection Agency’s Proposed Rule: Approval and Promulgation of Air Quality Implementation 

Plans, West Virginia; Regional Haze State Implementation Plan, EPA Docket ID No. EPA-R03-

OAR-2011-0092-0040 (Aug. 12, 2011); Comments of the Utility Air Regulatory Group on 

EPA’s Proposed Approval and Promulgation of Air Quality Implementation Plans; 

Commonwealth of Kentucky; Regional Haze State Implementation Plan, EPA Docket ID No. 

EPA-R04-OAR-2009-0783-0022 (Jan. 17, 2012); Comments of the Utility Air Regulatory Group 

on EPA’s Proposed Approval and Promulgation of Air Quality Implementation Plans; 

Commonwealth of Virginia; Regional Haze State Implementation Plan, EPA Docket ID No. 

EPA–R03–OAR–2011–0091-0016 and EPA–R03–OAR–2011–0584-0028 (Feb. 24, 2012).)

EPA Response:

[placeholder]
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XV. States Should be Given the Opportunity to Remedy CAIR-Dependent 

SIPs

Commenter: Luminant

Comment:

In any case, even if CSAPR becomes effective as to Texas at some point in the future, Texas 

should be given the opportunity to revise its SIP to utilize CSAPR as a BART alternative. There 

is simply no reason for EPA to delay its action on Texas’s regional haze SIP submission any 

longer—it should and must approve the submission immediately.

Commenter: Dale Hurst, Chief, Alabama Department of Environmental Management

Comment:

On Friday, December 30, 2011, EPA proposed to issue limited state implementation plan (SIP) 

disapprovals and Federal Implementation Plans (FIPs) concerning provisions governing 

alternatives to source-specific best available retrofit technology (BART) as they apply to 

Regional Haze SIPs (76 FR 82219). EPA proposes to issue these FIPs to address what they 

believe are deficiencies in all of the CAIR-dependent regional haze SIPs. The FIP is intended to 

provide a mechanism for EPA to replace reliance on the CAIR requirements in these SIPs with 

reliance on the Cross-State Air Pollution Rule as an alternative to BART.

We do not agree with this approach because EPA continues to erode states’ abilities to rectify 

deficiencies in SIPs. States should be given every opportunity provided by the Act to make 

revisions to correct SIP deficiencies before EPA acts by imposing a FIP. This approach would be 

consistent with the clear intent of the Clean Air Act.

EPA Response:

Please see section VI.C of the preamble for a discussion of EPA’s legal requirements with 

respect to Federal Implementation Plans (FIPs) and EPA’s final determination on specific state 

FIPs.

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment:

EPA Must Give States a Fair Opportunity to do a SIP before it Imposes a FIP

Under section 110(c)(1), FIPs may be proposed and promulgated only when a State has failed to 

do its job, either by not making a required SIP submission at all, or by making a required 

submission that EPA disapproves. In this situation EPA has simultaneously proposed a revision 

to 40 CFR 51.308(e)(4) and a SIP disapproval that is based on the not yet final revision to 40 

CFR 51.308(e)(4). Therefore, it was impossible for states to submit a Regional Haze SIP based 

on the version of 40 CFR 51.308(e)(4) that EPA is using to make its disapproval determination 

because that version did not, and still does not, exist. EPA has failed to give states a fair 

opportunity to do a SIP before it took action to impose a FIP as required by the Clean Air Act. 

As such, EPA must withdraw this proposal and give states a fair opportunity to do a SIP.

EPA Response:
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Please see section VI.C of the preamble for a discussion of EPA’s legal requirements with 

respect to Federal Implementation Plans (FIPs) and EPA’s final determination on specific state 

FIPs.

XVI. Comments Specific to Certain States 

1. Florida

Commenter: National Parks Conservation Association and Earthjustice

Comment:

EPA’s proposed partial FIP for Florida violates the requirements of the Clean Air Act and the 

RHR for several reasons. As detailed in Earthjustice’s comment letter on the overarching legal 

and policy flaws of EPA’s proposed rule, the “better than BART” rule as applied to all 28 

CSAPR states, including Florida, is inconsistent with the Clean Air Act. We incorporate that 

letter in full here. This letter specifically explains why EPA’s proposed partial FIP for Florida 

cannot legitimately rely on CSAPR to exempt Florida EGUs from the RHR’s BART 

requirements. As explained in Earthjustice’s comments on the national rule as well as similar 

comments on other states, [FN 1] EPA cannot rely on CSAPR because the D.C. Circuit has 

indefinitely stayed the rule. Furthermore, EPA has not complied with the Clean Air Act’s 

statutory requirements for a BART exemption, has failed to make a state-by-state demonstration 

that CSAPR is better than BART, and has included fatal methodological flaws in its proposed 

determination. [FN 2] Additionally, EPA’s determination fails to account for the geographic and 

temporal uncertainties in emissions reductions under CSAPR – uncertainties inherent in a capand-trade program. Moreover, as discussed below, the application of CSAPR as a substitute for 

source specific BART is uniquely and particularly problematic in Florida, and four other states

[FN 3] for which EPA proposes to exempt sources from BART NOx requirements, because NOx 

emissions are only covered by CSAPR during the ozone season – less than half the year. 

In addition, even if EPA eventually implements CSAPR, neither EPA nor Florida has 

demonstrated that CSAPR is better than BART as applied to Florida. To the contrary, the 

existing record demonstrates that CSAPR will (1) allow for greater NOx emissions than 

appropriate [FN 4] BART limits at Florida EGUs; (2) fail to require NOx emission reductions 

year round and (3) not achieve greater reasonable progress than would source specific BART at 

subject EGUs in the state of Florida. These shortcomings, taken together or individually are a 

result of arbitrary and capricious decision-making which impede the Agency’s ability to finalize 

the proposed partial FIP for Florida.

[FN 1] See Earthjustice Comments on the Proposed Approval of the Minnesota State Implementation Plan for 

Regional Haze, filed February 24, 2012; Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, 

filed February 28, 2012; and similar comments on other affected states. 

[FN 2] The proposed “CSAPR is better than BART” determination suffers from additional legal infirmities both as a 

national rule and as applied to Florida for at least five important reasons. First, EPA has not accounted for the 

differences in averaging time under BART (30-day averaging times), CSAPR (five-month averaging times), and in 

measuring visibility impacts (one-hour averaging time) and therefore cannot properly compare or demonstrate 

emissions reductions under CSAPR would be better than BART. Second, EPA's modeling assumed nitrate levels 

that are often lower than real-world conditions, which calls into question EPA's modeling. Third, in some instances, 

EPA relied on a single monitor to assess visibility conditions in multiple Class I areas. Relying on a single monitor 

for multiple Class I areas is unlikely to accurately describe visibility across the Class I areas and therefore makes 
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EPA's conclusions about visibility impacts suspect. Fourth, EPA also uses a simple arithmetic mean to conclude that 

visibility improvements will be greater than CSAPR than BART. EPA's methodology calls into question its 

conclusion given that relying on an arithmetic mean is likely to overstate progress by heavily waiting outlier results. 

Lastly, EPA's proposed better than BART determination relies on a 2014 base case that does not account for 

permanent emissions reductions at non-BART eligible sources, which resulted in giving CSAPR credit for those 

emissions reductions and placing BART at an arbitrary disadvantage in the comparison. See Comments on National 

Better than BART proposed rule, filed February 28, 2012. 

[FN 3] Oklahoma, Louisiana, Mississippi, and Arkansas. 

[FN 4] We have not performed source-specific BART determinations for each source. Throughout this text, where 

we use the terms “appropriate” or “adequate” to describe BART limit, they indicate our best estimation of the likely 

outcome of a BART determination. 

EPA Response:

[placeholder]

2. Georgia

Commenter: National Parks Conservation Association on behalf of a number of 

organizations

Comment:

In this rule, EPA proposes a limited disapproval of Georgia’s State Implementation Plan (SIP) 

because it relied on the requirements of the Clean Air Interstate Rule (CAIR) to reduce sulfur 

dioxide (SO2) and nitrogen oxide (NOx) emissions from electric generating units (EGUs). 76 

Fed. Reg. at 82219, 82229. To address that deficiency, EPA proposes a partial FIP that will 

replace reliance on CAIR with reliance on the Cross-State Air Pollution Rule (CSAPR) for the 

emissions of SO2 and NOx. Id. at 82229–30, 82232 (proposed amendment to regulation). The 

effect of the proposed partial FIP is to exempt all Georgia EGUs from the Regional Haze Rule’s 

(RHR’s) requirements for case-by-case, source-specific analyses and installation and operation 

of Best Available Retrofit Technology (BART) to reduce SO2 and NOx and achieve the RHR’s 

visibility mandates. 

The partial FIP is premised on EPA’s proposed finding that CSAPR would be “better than 

BART” at making reasonable progress toward achieving the RHR’s goal of eliminating humancaused visibility impairment at Class I areas by 2064. Id. at 82221; see also 40 C.F.R. § 

51.308(e)(3) (criteria for determining if an alternative measure is “better than BART”).

EPA’s proposed partial FIP for Georgia violates the requirements of the Clean Air Act and the 

RHR for several reasons. As detailed in Earthjustice’s comment letter on the overarching legal 

and policy flaws of EPA’s proposed rule, the “better than BART” rule as applied to all 28 

CSAPR states, including Georgia, is inconsistent with the Clean Air Act. We incorporate that 

letter in full here. This letter specifically explains why EPA’s proposed partial FIP for Georgia 

cannot legitimately rely on CSAPR to exempt Georgia EGUs from the RHR’s BART 

requirements. As explained in Earthjustice’s comments on the national rule as well as similar 

comments on other states, [FN 1] EPA cannot rely on CSAPR because the D.C. Circuit has 

indefinitely stayed the rule. Furthermore, EPA has not complied with the Clean Air Act’s 

statutory requirements for a BART exemption, has failed to make a state-by-state demonstration 

that CSAPR is better than BART, and has included fatal methodological flaws in its proposed 

determination. [FN 2] Additionally, EPA’s determination fails to account for the geographic and 
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temporal uncertainties in emissions reductions under CSAPR – uncertainties inherent in a capand-trade program. 

In addition, even if EPA eventually implements CSAPR, neither EPA nor Georgia has 

demonstrated that CSAPR is better than BART as applied to Georgia. To the contrary, the 

existing record demonstrates that CSAPR will (1) allow for greater SO2 and NOx emissions than 

appropriate [FN 3] BART limits at Georgia EGUs subject to BART and (2) not achieve greater 

reasonable progress than would source specific BART at subject EGUs in the state of Georgia. 

These shortcomings, taken together or individually are a result of arbitrary and capricious 

decision-making which impede the Agency’s ability to finalize the proposed partial FIP for 

Georgia.

[FN 1] See Earthjustice Comments on the Proposed Approval of the Minnesota State Implementation Plan for 

Regional Haze, filed February 24, 2012; Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, 

filed February 28, 2012; and similar comments on other affected states. 

[FN 2] The proposed “CSAPR is better than BART” determination suffers from additional legal infirmities both as a 

national rule and as applied to Georgia for at least five important reasons. First, EPA has not accounted for the 

differences in averaging time under BART (30-day averaging times), CSAPR (five-month averaging times), and in 

measuring visibility impacts (one-hour averaging time) and therefore cannot properly compare or demonstrate 

emissions reductions under CSAPR would be better than BART. Second, EPA's modeling assumed nitrate levels 

that are often lower than real-world conditions, which calls into question EPA's modeling. Third, in some instances, 

EPA relied on a single monitor to assess visibility conditions in multiple Class I areas. Relying on a single monitor 

for multiple Class I areas is unlikely to accurately describe visibility across the Class I areas and therefore makes 

EPA's conclusions about visibility impacts suspect. Fourth, EPA also uses a simple arithmetic mean to conclude that 

visibility improvements will be greater than CSAPR than BART. EPA's methodology calls into question its 

conclusion given that relying on an arithmetic mean is likely to overstate progress by heavily waiting outlier results. 

Lastly, EPA's proposed better than BART determination relies on a 2014 base case that does not account for 

permanent emissions reductions at non-BART eligible sources, which resulted in giving CSAPR credit for those 

emissions reductions and placing BART at an arbitrary disadvantage in the comparison. See Comments on National 

Better than BART proposed rule, filed February 28, 2012. 

[FN 3] We have not performed source-specific BART determinations for each source. Throughout this text, where 

we use the terms “appropriate” or “adequate” to describe BART limit, they indicate our best estimation of the likely 

outcome of a BART determination. 

Commenter: National Parks Conservation Association on behalf of a number of 

organizations

Comment:

Georgia’s submittal asserts that it will not meet the uniform rate of progress at two of its three 

Class I areas (Okefenokee and Wolf Island, which share the same monitor).8 If a state will not 

meet the goal of restoring natural visibility conditions by 2064, the state must demonstrate to 

EPA that it considered regulating all sources of visibility impairment, 40 C.F.R. § 51.308 

(d)(3)(iv)-(v), and that despite application of BART and other controls, it is unreasonable to meet 

the deadline of clean air in parks and wilderness by 2064. Id. § 51.308(d)(ii) (“[I]f the State 

establishes a reasonable progress goal that provides for a slower rate of improvement in visibility 

than the rate that would be needed to attain natural conditions by 2064 . . . the State must 

demonstrate . . . that the rate of progress for the implementation plan to attain natural conditions 

by 2064 is not reasonable.”). 

Georgia admits that it will not achieve the uniform rate of progress and will not attain natural 

visibility by 2064. It is not enough to consider options that would provide greater reasonable 
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progress then the state's chosen reasonable progress goal; the state must consider the reductions 

that would be necessary to achieve the uniform rate of progress, and demonstrate why such 

reductions are unreasonable. In its proposed haze SIP, Georgia did not “demonstrate, based on 

the factors in paragraph (d)(1)(i)(A) of this section, that the rate of progress for the 

implementation plan to attain natural conditions by 2064 is not reasonable.” Requiring BART 

would provide reasonable reductions that would help meet the uniform rate of progress, but this 

option has not been evaluated. 

Accordingly, Georgia's SIP submittal does not comply with all applicable regional haze 

requirements. Further, the absence of an evaluation of BART controls and limits as a means of 

meeting the uniform rate of progress – rather than lesser reasonable progress goals – illustrates 

the reason why the required long-term strategy and EPA’s proposed determination for an 

alternative to BART should be evaluated in the same arena, as discussed below, and not 

decoupled. [FN 9] 

Thus, in the absence of a demonstration that CSAPR will make greater reasonable progress than 

BART, CSAPR fails the regulatory test required for an alternative BART program to exempt 

sources from source specific BART limits.

[FN 9] See Earthjustice’s Comments on Proposed Partial Regional Haze FIP for Texas, filed February 28, 2012. 

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment:

EPA’s proposed action regarding Georgia falsely states that Georgia relied upon CAIR to satisfy 

the BART requirements for NOx and SO2 for all sources statewide. This is not true. In Georgia’s 

Regional Haze SIP, EPD relied on CAIR to satisfy the BART requirement only for the BART 

exemption modeling for BART-Eligible EGUs and for the BART determination for Georgia 

Power’s Plant Bowen. Therefore, EPA proposes that the language of 52.580(a) be revised to 

reflect the specific instances in which Georgia relied on CAIR to satisfy the regional haze 

requirements as follows: 

(a) The requirements of section 169A of the Clean Air Act are not met because the plan does not 

include approvable measures for meeting the requirements of 40 CFR 51.308 (e) for BART 

eligible EGUs. 

EPA Response:

Please see the final regulatory text in the final rule for clarification. 

3. Indiana

Commenter: Kristin A. Henry

Comment:

Indiana’s Regional Haze Plan Does not Comply with MANE-VU Region’s Request and Several 

Class I Areas in that Region Will Not Meet the Glidepath

The visibility modeling results performed by the state of Indiana show that the rates of visibility 

improvement in several Class I areas impacted by Indiana are expected to be less than the 

glidepath (i.e. further improvement needed), in 2018. These include Lye Brook Wilderness Area, 
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Vermont, Isle Royale National Park and Seney National Wildlife Refuge Wilderness Area in 

Michigan, Boundary Waters Canoe Wilderness Area and Voyageurs National Park in Minnesota, 

and Acadia National Park, Maine. Indiana Regional Haze Rule at 28. A few of these Class I area 

are in the MANE-VU Region, which has requested that states, such as Indiana, whose emissions 

impact Class I Areas in the MANE-VU region, take the following steps:

• Application of BART.

• 90 percent (or greater) reduction in SO2 emissions from each of the

EGU stacks on MANE-VU‘s list of 167 stacks (located in 19 states), which reflect those stacks 

determined to be reasonably anticipated to cause or contribute to visibility impairment in the 

MANE-VU Class I areas.

• 28 percent reduction in non-EGU (point, area, on-road, and off-road) SO2 emissions relative to 

on-the-books, on-the-way 2018 projections.

• Continued evaluation of other measures, including measures to reduce SO2 and NOx emissions 

from coal-burning facilities and promulgation of new source performance standards for wood 

combustion. 

• Further reduction in power plant SO2 (and NOx) emissions beyond CAIR (Indiana Regional 

Haze SIP at 40.)

With regards to the 167 stacks determined to be reasonably anticipated to cause or contribute to 

visibility impairments in the MANE-VU Class I Areas, 15 stacks are at 9 plants in Indiana. 

Indiana Haze SIP at 40. In response, Indiana DEM noted that a number of the stacks had already 

installed or were planning to install scrubbers because of CAIR, which Indiana DEM deemed to 

be sufficient progress towards MANE-VU‘s request. Id. at 37. EPA’s proposed partial FIP for 

Indiana simply replaces CSAPR for CAIR and does not change the state’s analysis. See 76 Fed. 

Reg. at 82232. Indiana DEM and EPA’s assumption that MANE-VU Region’s concerns would 

be addressed is inadequate because it fails to mention that three of the plants identified by 

MANE-VU – Tanners Creek, Frank E. Ratts, and Wabash River Generating Station – do not 

have scrubbers and do not have binding requirements to install them. See Indiana Regional Haze 

SIP at Table 11, pg. 47, 50.11 Combined, those three plants emitted more than 75,240 tons of 

SO2 in 2010. No explanation is provided as to why those plants should not be required to 

achieve 90% SO2 reductions in order to reduce visibility impacts. 

EPA may respond that certain planned actions will address these emissions. Indiana 

acknowledges that Wabash intends to address its SO2 emissions through CAIR Allocation, that

Tanners Creek will “[b]urn only coal with no more than 1.2% sulfur content annual average,” 

and that Frank E. Ratts must comply with “U.S. EPA settlement, plantwide from 2009 levels 

42% reduction - 2012, 58% - 2014.” See Indiana Regional Haze SIP at Table 11, pg. 47, 50. 

Each of these is legally deficient to meet the requirements of the Haze Rule as the Tanners Creek 

obligation to burn low sulfur coal is not legally binding and will not reduce SO2 emissions by 

90%, Wabash could buy allowances under the CSAPR trading program instead of installing 

control technology that would reduce emissions by 90%, and Frank E. Ratts settlement 

agreement does not require the installation of a scrubber that would reduce emissions by 90%. 

EPA Response:

[placeholder]
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4. Texas

Commenter: Earthjustice/Texas

Comment:

EPA cannot issue a legally defensible partial regional haze FIP for Texas that relies on CSAPR 

to exempt all Texas power plants from the RHR’s BART requirements. A strong regional haze 

plan for Texas that complies with the visibility protection regulations - including

BART limits at all EGUs subject to BART - is critically important to improve visibility at Big

Bend and Guadalupe Mountains National Parks, and other Class I areas in nearby states.

Moreover, a strong regional haze plan will protect public health and benefit tourism and local

economies by ensuring that people from around the world will continue to travel to Texas to

explore and enjoy the state’s majestic national parks and the region’s treasured landscapes.

Commenter: Mass Comment Campaign Sponsored by Texas Sierra Club (There were 258 

individual commenters who submitted essentially the same comment as follows.)

Comment:

I urge the EPA to strengthen its proposed rule for Texas and regional haze, Docket # EPA-HQOAR-2011-0729. Under EPA's proposed rule, Texas would rely only on the Cross-State Air

Pollution Rule, which focuses on statewide pollution reductions, to reduce haze in national parks. 

The Cross State Air Pollution Rule was designed for a different purpose, and has not yet been put 

into effect due to litigation. Most importantly, under that rule, the old, dirty Texas plants that 

currently contribute to haze in beloved areas like Big Bend and the Guadalupe Mountains may 

choose not to install pollution controls, instead opting to buy emission allowances from states as 

far away as Minnesota and South Carolina. To address haze, EPA should require Texas to 

consider each plant on a case-by-case basis and make sure our parks and health are protected. 

These distant emission reductions in other states, rather than Texas, may not protect Big Bend or 

Guadalupe Mountains as intended by the Rule. Moreover, the same air pollution from coal-fired 

power plants that causes haze also harms public health, so the proposed rule may not clean up the 

air that Texans breathe as the Regional Haze Rule would. Visitors to Big Bend and Guadalupe 

Mountains, and all Texans, deserve the full clean air benefits of the Regional Haze Rule.

Commenter: Mass Comment Campaign Sponsored by National Parks Conservation 

Association (There were 835 individual commenters who submitted essentially the same 

comment as follows.)

Comment:

I urge you to require Texas's oldest and dirtiest power plants to significantly clean up to clear the 

haze in Big Bend and Guadalupe Mountains National Parks. Please abandon your proposal to 

exempt these polluters from widely available, cost effective pollution controls. As a national 

park visitor and advocate for the parks, I value these national treasures. Unfortunately, EPA has 

proposed a Texas haze plan that will not protect the places that I care deeply about. The current

haze plan relies on a trading program which could allow Texas polluters to buy emission credits 

from sources as far away as Minnesota and avoid installing pollution controls at their facility. To 

effectively address haze, EPA must require the specific Texas power plants damaging park air 

quality to reduce their emissions, not buy a pass to continue damaging the air in my region.

Reduced views and compromised air quality are problems that Congress sought to fix by setting 

aside these lands for special air quality protection. And we need to fix these problems. EPA 
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cannot let Texas power plants escape pollution controls; EPA must require an adequate Texas 

haze plan that would help clean up the air in our national parks, and throughout the region, for 

present and future generations.

Commenter: Mass Comment Campaign sponsored by CREDO Action (9,104 CREDO 

Action Members in Texas)

Comment:

I urge the EPA to strengthen its proposal for Texas regional haze, Docket # 

EPA‐HQ‐OAR‐2011‐0729. As a Texan, I care about our iconic open spaces like Big Bend and 

the Guadalupe Mountains and want them protected from haze pollution, which both obscures the 

spectacular views and also makes the air unsafe to breathe. Please strengthen your proposal and 

do more to hold Texas' major polluters accountable and improve air quality in Texas.

EPA Response:

[placeholder]

Commenter: Mark R. Vickery, Texas Commission on Environmental Quality

Comment:

In the initial review of the Technical Support Document (TSD) for Demonstration of the 

Transport Rule as a BART Alternative, the conclusion that CSAPR is better than BART appears 

reasonable based on the overall analysis presented. In general, the TCEQ technical staff found 

the conclusion that CSAPR is better than BART appears to be reasonable; however, due to the 

large number of the supporting documents, more time was needed for a thorough review. One 

instance of potential confusion appears on page 52 of the TSD where the EPA evaluated fewer 

sources than Texas evaluated for BART. The TCEQ is not sure why the lists are different, but 

might conjecture that the state has better information, or made a wider evaluation of sources,

than the EPA.

EPA Response:

EPA acknowledges TCEQ’s conclusion that CSAPR is better than BART is reasonable. With 

respect to the specific BART sources that EPA evaluated, we have reviewed the Texas SIP to 

ensure consistency with the sources that Texas has evaluated as BART-eligible. We compared 

our list of Texas BART-eligible units (page 52 of the TSD) with Appendix 9-13 (BART-Eligible 

List) of the Texas SIP 

(http://m.tceq.texas.gov/assets/public/implementation/air/sip/haze/Appendix9_13.pdf, accessed 

April 24, 2012). From this list we identified the company name and “account number” for each 

EGU that was identified as being subject to CAIR. This list was then cross-referenced with 

information contained in the “BART Modeling Parameters” file to obtain more information 

about each EGU 

(http://www.tceq.texas.gov/assets/public/implementation/air/sip/bart/BARTModelingParameters.

zip, accessed April 25, 2012). The data listing the modeling parameters was filtered by Standard 

Classification Code to select only EGUs firing any type of coal. This filter significantly reduced 

the number of EGUs considered BART-eligible. Finally, the ORIS identification number for 

each coal-fired Texas facility was matched to the ORIS numbers for the units we modeled for 

Texas. We found only one discrepancy and that was that we modeled WA Parish Unit 7 and 

Texas did not list this unit as BART-eligible in the modeling file. In conclusion, it is apparent 
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that the more extensive list of BART-eligible EGUs maintained by TCEQ includes EGUs that 

are fired with fuel other than coal. In the “better-than-BART” analysis EPA only modeled coalfired BART-eligible units (because there are no presumptive limits for fuels other than coal) and 

the Transport Rule applies primarily to such units.

Commenter: Mark R. Vickery, Texas Commission on Environmental Quality

Comment:

The proposed rule should identify if and how state air quality planning obligations are impacted 

as a result of the states’ inclusion in CSAPR if the basis for the state’s inclusion in CSAPR is 

different than the basis for the states’ inclusion in CAIR. Texas was previously included only in 

the CAIR annual SO2 and nitrogen dioxide (NOX) trading program (for significant contribution to 

nonattainment from fine particulate matter, or PM2.5), but was included in the CSAPR for annual 

NOX, ozone-season NOX, and the SO2 Group 2 trading programs (for significant contribution to 

nonattainment or interference with maintenance for the 1997 eight-hour ozone National Ambient 

Air Quality Standard (NAAQS)) and the 1997 annual PM2.5 NAAQS. It is unclear how this 

change was addressed in EPA’s analysis for the proposed rule. One of the documents in the 

rulemaking docket – entitled States with a Change in Status from CAIR to Initial CSAPR, or 

from CAIR to CSAPR and Supplemental Proposal for Six States does not identify Texas as one of 

the states that was treated differently between CAIR and CSAPR, so it is unclear how this 

change affects state air quality planning obligations under the Regional Haze Rule. The EPA 

should re-propose the elements of the current proposal to allow states the opportunity to 

comment on these proposed impacts to their SIPs.

EPA Response:

The preamble to the proposed rule explained how state obligations under the Regional Haze Rule 

are impacted by our proposed, now final, determination that reliance on the Transport Rule is an 

alternative to BART. As stated in the preamble (76 FR 82223), our final determination:

“... applies only to EGUs in the states in the Transport Rule region and only to the pollutants 

subject to the requirements of the Transport Rule (i.e., SO2 and/or NOx). BART for emissions of 

other visibility impairing pollutants (e.g., primary PM2.5, NH3, or VOC) must still be evaluated 

according to the Regional Haze Rule guidelines. Non-EGU sources also remain subject to the 

requirements of the Regional Haze Rule.”

In addition to the BART requirements for other visibility impairing pollutants and the 

requirement to address non-EGU BART, we explained in the preamble that our proposed action 

did not alter or replace any states’ reasonable progress targets for 2018 but we will assess the 

mid-course review of each state’s SIP to ensure each state’s current implementation strategies 

will be sufficient to meet these goals. See 76 FR 82229. We also explained that we intend to act 

on the reasonable progress goals and long-term strategy and other requirements of the Regional 

Haze Rule (BART determinations for non-EGU sources, monitoring, consultation with federal 

land managers, etc) for each state in a separate notice. See 76 FR 82229. This remains our 

intention. Lastly, with respect to the Federal Implementation Plan that substitutes reliance on the 

Transport Rule for reliance on CAIR, we made clear that states are encouraged at any time to 

submit a SIP revision to incorporate the requirements of the Transport Rule at which time we 

will withdraw our FIP. However, a state may also choose to remain subject to the FIP and not 
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submit a SIP revision (until the second implementation period in 2018). As we stated in the 

preamble:

“Our finding that the Transport Rule makes greater reasonable progress than BART for EGUs in 

these states will hold true regardless of whether a state chooses to submit a SIP revision under 

subpart 52.38 and 52.39 or remain subject to a FIP.” See 76 FR 82221.” 

5. Florida

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment:

Procedurally, we recognize that action on Regional Haze implementation plans is long overdue. 

The Clean Air Act ("CAA") required EPA to promulgate a FIP for Florida by January 2011, 

unless Florida's Regional Haze SIP (which has been pending with EPA in final form since 

August 2010) was approved first. EPA has yet to act and, in fact, recently proposed a consent 

decree in response to litigation on this issue setting deadlines for proposed and final action (May 

15th and November 15th , respectively, for Florida). In addition, EPA's failure to act violates a 

separate statutory deadline that requires EPA to approve or disapprove of Florida's SIP 

submission within 18 months, i.e., by the end of February 2012. See CAA § 110 (k). Further 

delay in acting on Florida's Regional Haze SIP is unjustifiable. EPA should proceed 

expeditiously to approve Florida's SIP in its entirety, which the Florida Department of 

Environmental Protection believed to be fully approvable as finalized in August 2010. This 

would include CAIR-based provisions for both the BART and long-term strategy requirements 

of Regional Haze. If the Court upholds CSAPR, EPA could issue a "SIP Call" at that time 

pursuant to CAA § 110(k)(5) to prepare for CSAPR's implementation. If CSAPR is upheld by 

June 2012, for example, the FCG-EC reiterates its suggestion in its January 3rd comments (on 

proposed consent decree deadlines) that a November 2012 proposed rule and June 2013 final rule 

schedule would be reasonable. Such a schedule is well within the maximum 18-month timeframe 

for revisions in response to a SIP Call. See CAA §110(k)(5). This schedule also only adds 6 to 7 

months to EPA's proposed consent decree final action deadline, a modest extension to a time line 

EPA already deemed acceptable. Finally, approving currently valid CAIR-based SIP provisions 

and issuing a SIP Call when and if necessary would be in keeping with the CAA's cooperative 

federalism design.

EPA Response:

The EPA is deferring action on the proposed FIP for Florida for the reasons discussed in section 

V.C. of the preamble to the final rule.

6. Ohio

Commenter: Cheri Budzynski on behalf of the Ohio Utility Group

Comment:

U.S EPA must approve Ohio's revised SIP because it is consistent with the federal rules. Ohio 

EPA submitted its SIP revisions in December 2008 and supplemented revisions in March 2011. 

Because CAIR will remain in effect, the EGUs in Ohio continue to reduce emissions under 
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CAIR. Thus, the EGUs are reducing emissions at a greater reasonable progress than if they were 

to install BART. This BART-alterative is permitted under the regulations. U.S. EPA also asserts 

that it must propose a FIP in accordance with Section 110(Q of the dean Air Act. This section 

states that U.S.EPA must promulgate a FIP within 2 years after the Administrator fully or 

partially disapproves a SIP "unless the State corrects the deficiency, and the Administrator 

approves the plan or plan revision, before the Administrator promulgates such [FIP]." U.S. EPA 

is proposing a FIP because Ohio's SIP relies on CAIR to satisfy BART. 76 Fed. Reg. 82229. The 

Utilities do not see the need for U.S. EPA to issue this FIP at this time because any supposed

deficiency in Ohio's SIP based on CAIR emission reductions have been remedied by the court's 

order that requires CAIR to remain in effect pending appeal of the Transport Rule. EGUs will 

continue to operate and reduce emissions under CAIR until U.S. EPA finalizes other intrastate 

transport rules such as the Transport Rule. At that time, Ohio can revise its SIP and supplant 

CAIR with these new rules.

EPA Response:

[placeholder]

XVII. Regulatory Language Addressing Reasonable Progress Goals and 

the Long-Term Strategy

Commenter: James A. Capp, Georgia Environmental Protection Division

Comment:

Proposed Language in §52.580(a) Should not Include §51.308(d)(3)

EPA has included the following in the proposed regulatory language for §52.580(a): "The 

requirements of section 169A of the Clean Air Act are not met because the plan does not include 

approvable measures for meeting the requirements of 40 CFR 51.308(d)(3) (emphasis in 

original)..." §51.308(d)(3) specifically includes EPA‟s expectations for the long-term strategy 

necessary to achieve the reasonable progress goals.

However, in the preamble to the proposed rule, EPA makes it clear that the proposed rule is not 

intended to have anything to do with the reasonable progress targets that are part of the long-term 

strategies for states, or the long-term strategy in general. The Preamble has no other mention of 

the reasonable progress targets and/or the long-term strategies for states that would support the 

inclusion of §51.308(d)(3) in §52.580(a). So, there is no basis for inclusion of §51.308(d)(3) in 

the proposed language for §52.580(a). EPA specifically said that the long-term strategy 

(including the Transport Rule) would be addressed in a separate rulemaking for each state and 

would not be included in this action. Therefore, the reference to §51.308(d)(3) must be removed 

from §52.580(a).

Commenter: Susan Schumann, Florida Electric Power Coordinating Group, Inc. (FCG)

Comment:

In the proposed rule's preamble, EPA states it intends to act on long-term strategy and additional 

Regional Haze requirements other than BART in a separate notice. See 76 Fed. Reg.

82229 ("We intend to act on the reasonable progress goals and long-term strategy ... and other 

requirements of the [Regional Haze Rule] ... in an individual notice separately from the final rule 
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for this action."). But, contrary to that statement, EPA is proposing an amendment to 40 CFR § 

52.534 that states Florida's SIP does not include approvable measures to satisfy 40 CFR § 

51.308( d)(3), its "long-term strategy for regional haze." As already noted, the FCG-EC believes 

Florida's SIP should be approved in full. However, to the extent EPA continues to pursue its 

proposal, EPA should revise its proposed amendments to 40 CFR § 52.534 so it is consistent 

with EPA's preamble statements and address the sufficiency of long-term strategy SIP provisions 

in a subsequent rulemaking.

EPA Response:

Please see the final regulatory text in the final rule for clarification.

XVIII. Comments Unrelated to the Proposed Action

Commenter: Paul Bailey, American Coalition for Clean Coal Electricity (ACCCE)

Comment:

EPA should determine whether the emission reductions expected from MATS will achieve 

“better than BART” visibility improvement. EPA projects that the MATS regulation will result 

in a 41 percent reduction in SO2 emissions from the EGU sector beyond CSAPR by 2015. See 

Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards (Dec. 2011), p. 3-

10. As a result of these reductions, and of smaller reductions in primary PM2.5 emissions, EPA 

includes improvement in visibility conditions as a co-benefit of the rule. Id. at 5-6. EPA 

modeling shows a median visibility improvement of 0.09 deciview in annual 20% worst 

visibility days over all Class I area monitor locations, with improvement up to 0.97 deciviews. 

Id. at 5b-6. For the same reason that EPA decided to model whether CAIR and CSAPR emission 

reductions from the EGU sector would achieve “better than BART” visibility improvement, EPA 

should do the same for its new MATS regulation. While ACCCE does not support the MATS 

rule, given the dramatic reductions in SO2 emissions expected from it, there is every reason to 

expect that the visibility improvement will be “better than BART” and that the time-consuming 

source-by-source BART process can be avoided not just in CAIR/CSAPR states but in other 

states as well.

EPA Response:

EPA agrees that the Mercury Air Toxics (MATS) rule will result in significant reductions in 

hydrochloric acid emissions and that substantial SO2 emission reductions will be a co-benefit of 

these controls. Enforceable SO2 emission limits adopted to comply with MATS will be taken 

into consideration in source-specific BART determinations in accordance with the Regional 

Haze Rule Guidelines (See Appendix Y to Part 51 – Guidelines for BART Determinations Under 

the Regional Haze Rule, section IV.C.) 

Commenter: Louis P. Pocalujka, Consumers Energy

Comment:

Consumers Energy recommends that EPA work with the states and the electric utility industry to 

consider other regulatory alternatives to enable a smooth transition between CAIR=BART 

regulatory provisions and any follow-on transport rule that incorporates a similar determination. 

In all cases, EPA should ensure that states within the CAIR and CSAPR regions are able to rely 

on these transport programs or any successor program to address BART obligations.
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EPA Response:

EPA may or may not consider future transport programs or other regulations as alternatives to 

source-specific BART. Regardless, any program that EPA may consider as a BART alternative 

would be subject to rigorous analysis and public notice and comment prior to adoption by the 

EPA as an alternative to BART.

Commenter: Cathy S. Woollums, MidAmerican Energy Holdings Company

Comment:

In the Transport Rule proposal, EPA analyzed whether the Transport Rule is better than BART

by comparing two scenarios – “Nationwide BART” and “BART + Transport Rule.” For the 

“Nationwide BART” comparison, EPA assumed the installation of BART controls that were 

modeled as presumptive EGU BART limits, for the SO2 and NOx emission rates. For the BART 

+ Transport Rule,” EPA substituted the presumptive BART rates applied in “Nationwide BART” 

with the emission reductions associated with the implementation of the Transport Rule. EPA 

then concluded that more SO2 and NOX emission reductions will be achieved under the 

Transport Rule + BART-elsewhere” scenario than under the “Nationwide BART” scenario. 

Based on this conclusion, EPA determined that the implementation of the Transport Rule is 

better-than BART because greater reasonable progress is made under the alternative of the 

Transport Rule. If EPA adopts this position, EPA must also conclude that it is improper to 

impose source-specific BART limits in non-Transport Rule states that are more stringent than 

Transport Rule requirements. EPA’s final rule determining that the “Transport Rule is better than 

BART,” using presumptive BART limits as the basis for its conclusion, means that presumptive 

BART limits should be imposed on BART-eligible facilities in states outside the Transport Rule.

EPA Response: EPA disagrees with any suggestion that this rulemaking means that 

presumptive limits should be imposed on a BART-eligible facility located outside of the 

Transport Rule region. As noted in our response to numerous other comments.

XIX. Comments Pertaining to the Transport Rule (Cross-State Air 

Pollution Rule CSAPR))

Commenter: Stephen Cain, Arkansas Electric Cooperative Corporation (AECC)

Comment:

AECC believes that states that are not subject to a given CSAPR allowance trading program 

should have the option of opting into that program to comply with the Regional Haze Rule. 

AECC believes that this option would allow flexibility in compliance for the Regional Haze Rule 

while still maintaining a state’s reasonable progress goals toward improved visibility in Class I 

areas. Also, with more stakeholders in a trading program, the program will be more robust. 

Commenter: Mark R. Vickery, Texas Commission on Environmental Quality

Comment:

The basic information EPA used in the Integrated Planning Model (IPM) modeling runs was not 

thoroughly evaluated by the states and should not be used for regulatory decisions. Due to its 

propriety nature, IPM lacks transparency and makes it difficult for states to evaluate the modeled 
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emission projections. The TCEQ has thus been denied adequate opportunity to comment on the 

accuracy and appropriateness of IPM. Although the EPA indicates that it has addressed the 

concerns raised by the TCEQ earlier under CSAPR, the TCEQ still has concerns about the 

results and methodology used in IPM to predict emissions. The use of potentially inaccurate IPM 

results to support Clean Air Model with Extensions (CAMx) modeling to determine CSAPR

requirements calls into question whether CSAPR modeling results are valid.

Commenter: Mark R. Vickery, Texas Commission on Environmental Quality

Comment:

While the Texas Commission on Environmental Quality (TCEQ) appreciates the EPA’s efforts 

in working with companies to correct errors the EPA made regarding affected coal-fired EGUs in 

Texas with sulfur dioxide (SO2) flue gas desulfurization (FGD) scrubbers, the proposed rule will 

require substantial reductions in SO2 emissions in an unprecedented short period of time. Even 

accounting for the SO2 FGD scrubbers that have recently come on-line, the TCEQ estimates that 

SO2 reductions would still be required from Texas EGUs in 2012 to meet CSAPR emission 

budgets, if the rule is upheld by the D.C. Circuit. The proposed rule’s finding that CSAPR is 

better than BART essentially reinforces the requirement to comply with CSAPR, which will 

have substantial impacts on Texas sources in addition to other repercussions for electrical power 

grid reliability and other negative impacts elaborated by Texas in filings associated with the 

CSAPR. The TCEQ has significant concerns that forcing Texas EGUs to make such significant 

SO2 reductions in the unprecedented short compliance schedule mandated by the EPA will leave 

some Texas coal-fired EGUs with limited options for compliance and may endanger Texas 

electrical power grid reliability.

Commenter: Luminant

Comment:

For a host of reasons, CSAPR is illegal and should ultimately be vacated by the D.C. Circuit. 

Luminant has set out the reasons that CSAPR is illegal in its request for reconsideration 

submitted to EPA on August 5, 2011 (later supplemented on September 9 and 29, 2011) and also 

in its filings with the Court. See Attachments 2, 3, 4, and 5. Luminant also submitted comments 

(Attachment 6) on EPA’s proposed rule to make adjustments to State emissions budgets based on 

errors in EPA’s modeling. See 76 Fed. Reg. 63,860 (Oct. 14, 2011). All of these CSAPR 

submissions and filings by Luminant are incorporated herein by reference.

EPA Response:

These comments pertaining to CSAPR are not relevant to this rulemaking.

XX. Comments Pertaining to the Proposed Consent Decree

Commenter: Michael Olive, Progress Energy

Comment:

On December 2, 2011, EPA proposed a consent decree in response to litigation on this issue, 

setting a range of 2011 deadlines for proposed and final action on regional haze SIPs. As a result 

of the subsequent stay of CSAPR on December 30, however, the proposed consent decree

deadlines are inconsistent with the timetable needed for considered action on the CSAPR=BART 

proposal. Therefore, EPA either should decide not to consent to this decree as drafted or else, at a
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minimum, provide a further opportunity for public review and comment on the proposed decree

to allow for more careful consideration of these issues in view of important developments that

had not occurred at the time EPA opened the proposed decree for comment.

Commenter: Louis P. Pocalujka, Consumers Energy

Comment:

Consumers Energy notes that EPA has requested comments on a proposed consent decree that 

would establish deadlines for EPA to propose and fully promulgate regional haze FIPs or 

approve regional haze SIPs for over 40 states. Among other things, it seems likely that the highly 

compressed and accelerated deadlines for EPA rulemaking under the proposed decree would 

force decisions well before the CSAPR stay and litigation can be resolved. Under that proposal, 

EPA would be required to issue proposed actions on a regional haze SIP or FIP for each state 

subject to CAIR or CSAPR, or both, even before the comment period will have closed on the 

proposed CSAPR=BART rule on February 28, 2012. Other deadlines contained in the consent 

decree also are unrealistic given the existence of the CSAPR stay and the uncertainties as to 

when the D.C. Circuit Court of Appeals will render any final decision on the CSAPR litigation, 

and what that final decision will be. The proposed consent decrees deadlines would force 

decision-making by EPA during a highly uncertain period. Therefore, Consumers Energy 

recommends that EPA should not finalize the proposed consent decree.

Commenter: John D. Kinsman, Edison Electric Institute (EEI)

Comment:

EEI finally notes that EPA has requested comments on a proposed consent decree (76 Fed. Reg. 

75544, Dec. 2, 2011) that would establish deadlines for EPA to propose and fully promulgate 

regional haze FIPs or approve regional haze SIPs for over 40 states. Among other things, it 

seems likely that the highly compressed and accelerated deadlines for EPA rulemaking under the 

proposed decree would force decisions well before the CSAPR stay and litigation can be 

resolved. Oral argument on petitions challenging CSPAR in the D.C. Circuit Court of Appeals 

has been ordered for April 13, 2012 and any decision on this complex litigation will likely take a 

considerable amount of the court’s time. EPA, however, would be required under the proposed 

consent decree to issue proposed actions on a regional haze SIP or FIP for each of 16 states (i.e., 

those with respect to which the consent decree would impose a February 15, 2012 deadline for 

proposed EPA actions), including 11 states that are subject to CAIR or CSAPR, or both, even 

before the comment period will have closed on the proposed CSAPR=BART rule on February 

28, 2012.. Moreover, the proposed consent decree would require final action by EPA on the 

regional haze SIP or FIP for two other states (Tennessee and West Virginia) that are subject to 

CAIR and CSAPR by March 15, 2012, only 16 days after the close of the comment period on the 

proposed CSAPR=BART rule and nearly a month prior to the date of oral argument in the 

CSAPR litigation. Other deadlines contained in the consent decree also are unrealistic given the 

existence of the CSAPR stay, uncertainty as to when the D.C. Circuit Court of Appeals will 

render any final decision on the CSAPR litigation, and whether the court will vacate or require 

further agency action with respect to CSAPR if it remands the program to EPA. On their face, 

therefore, the proposed consent decrees deadlines would force decision-making by EPA during a 

highly uncertain period that is contrary to the situation that existed at the time EPA proposed the 

consent decree. EPA therefore should seek an alternative course of action to the proposed 

consent decree. 
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Commenter: Paul Bailey, American Coalition for Clean Coal Electricity (ACCCE)

Comment:

ACCCE is aware that not taking final action on RH SIPs may not be consistent with the 

proposed consent decree in certain states. ACCCE recommends that EPA not enter into the 

consent decree for this reason, at least as to those states affected by the CSAPR/CAIR/BART 

proposal. EPA’s policy of harmonizing CAIR and CSAPR with the regional haze program 

should not be driven by artificial consent decree deadlines when EPA knows that a court 

decision may be made by mid-year that will clarify the proper policy that EPA should 

implement.

Commenter: Mark R. Vickery, Texas Commission on Environmental Quality

Comment:

The EPA should negotiate an extension of the consent decree deadlines, due to the uncertainty 

resulting from the CSAPR stay. The EPA is proposing to settle claims brought by several nongovernmental organizations against the EPA for failure to act on states’ Regional Haze SIPs in 

National Parks Conservation Association et al. v. Jackson, No. 1:11-sv-1548 (D.D.C.). The 

proposed consent decree containing deadlines for EPA action for certain states, including Texas, 

was published for comment in the December 2, 2011, Federal Register (EPA Docket ID No. 

EPA-HQ-OGC-2011-0929). The EPA should negotiate an extension of the consent decree 

deadlines (including that for Texas of a final action by November 15, 2012) due to the 

uncertainty resulting from the CSAPR stay. The proposed rule is insupportable, given that the 

court has issued a stay of the CSAPR and reinstitution of CAIR. Because the proposed rule relies 

on CSAPR, it is insupportable if the D.C. Circuit Court of Appeals agrees with the Petitioners, 

and vacates or remands the CSAPR. In addition, the EPA should consult with subject states 

before agreeing to any revised deadlines in order to provide adequate time for these states to 

comply with Regional Haze Rule requirements.

EPA Response:

[placeholder]

XXI. Regional Haze Rule Five-Year Progress Reports

Commenter: Mark R. Vickery, Texas Commission on Environmental Quality

Comment:

Texas requests the EPA extend the deadline for five-year progress reports under the Regional 

Haze Rule (40 CFR § 51.308(g)). Texas’ five-year progress report deadline is approximately two 

years from now. Given the possibility that the current legal challenges to CSAPR in the D.C. 

Circuit may result in required changes to the Transport Rule, and thus may change the EPA’s 

analysis that CSAPR is better than BART, states must have additional time to determine how this 

alters the content of the five-year progress report. Consistent with Texas’ request that the consent 

decree deadlines for the EPA action on the Regional Haze SIPs be extended, Texas requests the 

deadline for the five-year progress report also reflect a comparable extension.

EPA Response:
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EPA’s Regional Offices will be working directly with states on the required content of the fiveyear progress reports. The obligation to submit the five-year progress report is not changed by 

requirements in either the proposed or final rule.

.