Summary of Public Comment and Agency Responses

Wyoming Regional Haze Implementation Plan

Prepared by: Dan Olson Date: December 15, 2003

Comment Period: The public notice soliciting comment on the proposed implementation

plan was published on October 16 and 17, 2003 in newspapers throughout the state. Public

comment was accepted until the close of the public hearing at 10:30 a.m. on November 18, 2003.

The hearing was conducted beginning at 10:06 a.m. at the Department of Environmental Quality

Casper Field Office at 3030 Energy Lane, Casper, Wyoming.

Summary: A total of seven individuals attended the public hearing. No oral testimony

was provided and the hearing was closed at 10:30 a.m.. During the public comment period,

written comments were received from three different entities. Responses to those official

comments are given below. Note that some comments request a clarifying change be made to the

language of the proposal. In many cases the Department agrees in principle with the requested

change and does not view any of the requests as a substantial modification to the proposal,

however, we elect not to make those language changes at this time. The Department expects that

some modification of the proposal is likely during the EPA completeness review and commits to

incorporate clarifying language at that time. 

SPECIFIC COMMENTS

William K. Lawson, PacifiCorp

1. Projection of Visibility Improvement - PacifiCorp notes that Wyoming has

done considerable work in conducting modeling to identify the benefits that the SO2 program

will provide to the Class I areas in Wyoming as well as those sixteen on the Colorado Plateau.

PacifiCorp recommends that for purposes of the SO2 program the state include the modeling

results for these additional Class I areas and explicitly state that this program is meeting the

visibility improvement requirements for these Class I areas, as well as those on the Colorado

Plateau. 

Response: The initial SIP pursuant to Section 309 focuses on implementing the

GCVTC recommendations for the Sixteen Class I areas on the Colorado Plateau.

The State of Wyoming has made a declaration in this submittal that it intends to

address other Class I areas pursuant to Section 309(g) of the Rule in a SIP revision

no later than December 31, 2008. In part, that decision was informed by the

modeling work conducted by the WRAP to verify the Annex analysis, in which it

was shown that in addition to the 16 Class I areas on the Colorado Plateau, the

regional SO2 milestones resulted in visibility improvements in Wyoming’s Class I
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areas as well. This demonstration can be found in Section 4.1.2 of the WRAP

Technical Support Document. In accordance with Section 309(g), although

additional strategies may be required to show reasonable progress for other Class I

areas, no further demonstration or SO2 strategies will be required for Wyoming’s

stationary sources that are already included in the 309 regional SO2 milestone

program.

2. Clean Air Corridors - PacifiCorp agrees with the Department's characterization

of the clean air corridor requirements. Although it is unlikely that the emissions increase

threshold will be triggered, we urge the State to consider that emission increases may not

necessarily influence all Class I areas on the Colorado Plateau on the least-impaired days. 

Efforts should be taken to further refine the underlying meteorology and modeling for

demonstrating impacts on the least impaired days. 

Response: The State agrees that analysis of impact should address each Class I

area individually, and that refinements are needed in meteorological and

monitoring data for demonstrating impacts of emissions coming from the clean air

corridor. The WRAP’S periodic "Causes of Haze" reports will provide more

robust understanding of clean air corridors in the future. 

3. Stationary Sources - In the introduction to this section, PacifiCorp suggests

that Wyoming reiterate EPA’s finding that the emission reduction milestones provide “greater

reasonable progress” than would be achieved by the application of best available retrofit

technology to eligible sources. For purposes of SO2 emissions from stationary sources, Wyoming

should take advantage of the work completed by the WRAP demonstrating this not only for the

16 mandatory Class I federal areas on the Colorado Plateau, but for all mandatory Class I Federal

areas in the western U.S., including the State of Wyoming (see: Technical Support Document,

4.1.2. Stationary Source SO2 Control Scenario Modeling Results for Western Class I Areas). A

significant benefit under the rule, and from the modeling work completed by the WRAP, is that

no further demonstrations are necessary to show that, for stationary sources of SO2 covered by

this program, the milestones will satisfy the BART provisions under §169A of the CAA.

Affected sources covered by this program must have certainty that the SO2 milestones will not

be reopened.

Response: Please see response to Comment #1.

4. Changes in Flow Rate Measurement Methods - While PacifiCorp understands

the intent of this provision as it was negotiated in the Annex (i.e., to avoid so called “paper

changes” in emissions), we also have continuing concerns about how it will be implemented in

the real world. This section assumes that monitoring emissions is an exact science with discreet
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actions that affect the accuracy of the data. This is simply not true. There are many variables that

affect emissions and the data that is reported. In order to standardize the reporting of emissions,

EPA has created a very detailed program under Title IV of the Clean Air Act. Utilities have

complied with EPA’s requirements for measuring, conducting quality assurance and quality

control activities, and reporting stack emissions since 1995. All data supplied to EPA under Title

IV of the Clean Air Act is certified to meet these EPA standards. PacifiCorp recommends that the

State be very cautious about adjusting the interim milestones using these methods, and

recommends that the state rely on the emissions that utilities report to the EPA under Title IV of

the acid rain program, rather than getting caught-up in the creation of additional clumsy and

burdensome databases to address relatively minor changes in the milestones.

Response: The WRAP Market Trading Forum discussed at length the issue of

“paper” emission changes due to new flow measurement techniques. There was

concern that these changes would undermine the goals of the Annex because real

emission reductions would not occur, even though the reported emissions would

show a decrease. The SIP provisions related to flow rate measurement methods

were designed to ensure that actual emission reductions take place. These

measures need to remain in place so that we can determine the scope of the “paper

changes” that have occurred since 1999. The measures are also specifically

required by 40 CFR 51.309(h)(1)(iv). 

5. Year 2013 Assessment - [A4.1(b)] Following the letter and spirit of the Annex,

PacifiCorp believes that this process entails two steps: (1) a determination based on the evidence

that The 2018 milestone will not be met; and (2) a consensus decision with the other 309 states

that triggering the program is “necessary” to ensure the 2018 milestone is met (i.e., consensus

that but for an early triggering of the program, the 2018 milestone will not be met). This properly

places the burden on those asserting that the program should be triggered early.

Revise A4.2(b) At the end of this subsection, add the following sentence: “draft report will be

posted on the WRAP website for a period of public review and comment for not less than 30

days.”

Revise A4.3 “Consensus Decision” as follows:

“The Department commits to meet with the participating states and tribes in March 2014 to

discuss any comments received on the 2018 emission projections in the draft report. The

participating states and tribes will decide, through a consensus process, whether it can be

determined that the 2018 milestone will not be met, and whether it is necessary to trigger the

WEB trading program early in order to meet the SO2 emission reduction goals in 2018.”

Response: A4.2(b) The language was not added at this time because of time

constraints, however, in coordination with the other 309 states Wyoming commits

to provide the suggested public notification.
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A4.1(b) and A4.3 The suggested language has not been added to the SIP. The

purpose of the 2013 review is to determine whether we are heading into trouble so

that the participating states and tribes can avoid a major non-compliance issue in

2018. If the 2018 penalty provisions are triggered, it will be a failure of the

expected process, and sources in Wyoming would face significant financial

penalties. By triggering the trading program, the states will use the backstop

regulatory program to ensure that sources remain in compliance and that the goals

of the program are met. The decision will be based on the best information

available, but because the states and tribes will be using emission projections,

there will always be some uncertainties in the numbers. It cannot be “determined

that the milestones will not be met” with absolute certainty, and the proposed

language could be interpreted to require certainty. The milestones are designed so

that market forces and the incentive of avoiding a regulatory program will drive

emission reductions rather than a regulatory program. The states and tribes will

not trigger the trading program in 2013 unless this incentive process does not

appear to be effective. The decision will not be made lightly. However, it is

impossible to identify all of the factors that must be considered in this decision

process at this point in time.

6. Allowance Allocations - PacifiCorp included additional comments regarding

the principles and equity issues that must be considered in the allocation process that are listed in

Section C, Part C1.1(a)2 of the SIP. 

Response: Wyoming notes and appreciates PacifiCorp’s general agreement with

the allocation approach for utilities adopted by Wyoming. The proposed SIP

contains an allocation methodology for utilities in the event that the program is

triggered. As described in the SIP, WDEQ is participating in ongoing discussions

with the other 309 states to ensure that all of the principles and equity issues that

are listed in the SIP have been addressed in this methodology. PacifiCorp’s

perspective on how each of the principles and equity issues affect the allocation

process will be an important part of the ongoing discussions. No changes are

recommended to the SIP text at this time.

7. Early Reduction Credits - C1.1(a)3. and (b)5. This provision is under review

and subject to approval of the §309 states and stakeholders. PacifiCorp urges Wyoming to

finalize all allocation issues affecting utility sources at the same time.

It is not clear from the proposed SIP and proposed rule language what threshold date applies to

the controls eligible for this credit. The Annex language strongly suggests that it should apply to
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actions that occur after a state has committed itself to a §309 SIP. For simplicity, the State should

use 1/1/03 as the threshold date for the installation of controls eligible for this credit.

Response: Chapter 14, Section 2(f)(v)states that the bonus allocations shall be

available for reductions that occur between 2003 and the program trigger year. 

This is consistent with the 1/1/03 date recommended by PacifiCorp. 

8. Renewable Resource Credits - C1.1(a)4. and (b)6. This provision is under

review by certain stakeholders and subject to approval of the §309 states and stakeholders.

PacifiCorp urges Wyoming to finalize all allocation issues affecting utilities at the same time.

Response: The proposed SIP contains an allocation methodology for utilities, and

an allocation methodology for renewable energy resources. As described in the

SIP and in the response to earlier comments, WDEQ is participating in ongoing

discussions to ensure that the allocation process is fair and consistent with the

goals of the backstop trading program. The renewable energy credit and the early

reduction bonus allocation will be part of these discussions because the allocation

process is a series of interlinked parts that cannot be considered individually.

9. Programs to Achieve GCVTC Renewable Energy Goal - Following the

existing paragraph in this subsection or some other appropriate place in this section, we ask the

State to consider adding the following language from the Preamble of EPA’s Federal Register

Notice of the Final Regional Haze Rule on July 1, 1999:

“The goals themselves are not enforceable and States are not required to meet the renewable

energy goals. . . . Rather, EPA is setting enforceable requirements for the States to assess

progress toward goals established by the GCVTC with respect to renewable energy production as

a means for reducing dependence on more polluting forms of energy production. States

participating in the GCVTC strategy are responsible for explaining why they cannot meet the

GCVTC goals. The required reporting by the States will inform the public of air quality

improvements that would result from that goal had it been realized. It is the relationship between

renewable energy production and associated environmental effects (direct and indirect) that is the

thrust of the assessment and reporting effort under the SIP.” (at 35754-55)

Response: This paragraph has not been added. This statement of the intent of 40

CFR 51.309(d)(8) matches our understanding but the Preamble carries the same

weight whether or not it is included in the SIP and generally, we do not repeat

language from the Preamble within the SIP. 

10. Geographic Enhancements - PacifiCorp agrees that this approach should be

voluntary. We urge Wyoming and the WRAP to continue working with the federal land
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managers in order to refine the approach that will be used to address RAVI given that regional

emissions are being reduced under the haze program. This will inevitably require some resolution

of how so-called “hot spot” areas are identified and addressed in the context of the regional haze

program. While the work of WESTAR and the WRAP has moved us in that direction, a few

significant policy issues remain unresolved (e.g., data interpretation methods revealing

significant emission spikes within Class I areas that would qualify them as genuine “hot spots”

and identifying a portfolio of remedies if they become necessary).

Response: Wyoming’s current visibility SIP addresses reasonably attributable

visibility impairment (RAVI). Section K of the SIP addresses the relationship

between the existing RAVI SIP and the new regional haze SIP. This section

states, “If the federal land manager certifies impairment, the State of Wyoming

will fulfill its obligations to determine attribution and if necessary determine

BART for the applicable source or group of sources in accordance with

Wyoming’s SIP for visibility protection approved by EPA on February 15, 1989

through a notice in the Federal Register. The Wyoming SIP for reasonably

attributable visibility became effective on April 17, 1989.” Wyoming is

committed to continue working with the federal land managers in order to refine

the approach that will be used to address RAVI given that regional emissions are

being reduced under the haze program.

11. Reasonable Progress for Additional Mandatory Federal Class I Areas - As

discussed earlier in these comments (introductory paragraphs to “A. Projection of Visibility

Improvement” and “C. Stationary Sources”), PacifiCorp strongly urges the state to address

BART for regional haze purposes for the sources covered by this program in the 2003 SIP.

Response: Please see response to PacifiCorp comments numbers 1 and 3 above.

Stephen P. Martin, National Park Service

1. Assessment of Nitrogen Oxides (Nox) and Particulate Matter (PM)

Emissions Control Strategies - Section D.3 of the proposed plan discusses the role of NOx and

PM in regional haze. Language used by the State indicates that some determination of the need

for these strategies has already been made; perhaps giving the impression that there may be little

future concern for these pollutants as regional haze contributors. The NPS would prefer, based on

the incompleteness of current work the WRAP is engaged in on this subject, that the State stress

the ongoing assessment of the visibility impacts of NOx and PM, and the potential control

strategies to address those impacts. It would be appropriate to indicate that determinations of

these impacts and strategies will be addressed in future revisions of the plan. It would also be

most informative of the current status of this requirement to state that until future assessments are
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completed, the State cannot determine what level of control, if any, of NOx and PM through a

stationary source milestone program, would be appropriate.

Response: Additional language has been included in this section to attempt to

clarify, and perhaps offset, any mistaken impression that Wyoming believes there

is little future concern for NOx and PM as contributors to regional haze. The

statements made in the proposed plan represent the current state of analyses,

which we agree is incomplete, and which must be reassessed based on more

complete and accurate analyses prior to the 2007/2008 SIP revision. We have

added “The State of Wyoming will continue to work with the WRAP to improve

the emission inventories and regional modeling to support future policy decisions

regarding stationary source NOx and PM emissions.” to the final paragraph of this

section.

2. Geographic Enhancement Program - The National Park Service notes that

the second paragraph under K1 identifies only the National Park Service as the federal land

manager. 

Response: We also caught this deficiency and substituted the broader “federal

land manager” language. Thank you for your comment.

3. Additional Class I Areas - Section L.1 of the proposed regional haze SIP

discusses reasonable progress for additional mandatory Class I areas not part of the 16 Colorado

Plateau areas and lists the 7 mandatory Class I areas in Wyoming. For purposes of the federal

requirement under Section 309(g), we believe the plan should indicate that the 2008 regional

haze plan update will need to address out-of-state Class I areas that may be affected by transport

of emissions from Wyoming in addition to the 7 areas in the State.

Response: Section 309 of the regional haze rule requires that the 2003 plan

address the 16 Class I areas of the Colorado Plateau. Other Class I areas do not

need to be addressed until 2008. 40 CFR 51.309(g) provides a mechanism to

apply 309 control strategies to other Class I areas within states that submit SIPs

under Section 309. Wyoming is making this declaration in its plan. Other 309

States are declaring within their 309 SIPs whether they will address the additional

Class I areas within their borders by implementing 309 strategies, or by following

the provisions of Section 308. Wyoming will, of course, work with other states

within the WRAP in addressing impairment in Class I areas outside Wyoming’s

borders.
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Gillian Malone, Powder River Basin Resource Council 

1. Paved and Unpaved Road Dust - The Powder River Basin Resource Council

expressed concern that the WDEQ’s statement that “NOx and PM strategies are not needed based

on current information” does not take into account the extensive amount of road and construction

dust associated with coalbed methane development. The PRBRC goes on to state that it feels

more PM and NOx is necessary throughout the Powder River Basin.

Response: Additional language has been included in this section to attempt to

clarify, and perhaps offset, any mistaken impressions that Wyoming believes there

is little future concern for NOx and PM as contributors to regional haze. The

statements made in the proposed plan represent the current state of analyses,

which we agree is incomplete, and which must be reassessed based on more

complete and accurate analyses prior to the 2007/2008 SIP revision. We have

added “The State of Wyoming will continue to work with the WRAP to improve

the emission inventories and regional modeling to support future policy decisions

regarding stationary source NOx and PM emissions.” to the final paragraph of this

section. 

Regarding monitoring, the State agrees that additional monitoring is desirable,

particularly given that current computer modeling does a poor job dealing with

fugitive PM emissions. Outside of the context of regional haze, the DEQ is

already deploying more NOx and PM monitors in the Basin and, in addition, has

a line item in the budget for the next biennium to support the placement of even

more monitoring stations throughout the State, including the Powder River Basin.

As a final note, the general positive support of the PRBRC for the State’s decision

to proceed with the 309 option is appreciated. 
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Responses To Written Comments Submitted To 

The Environmental Quality Council

December 1 & 2, 2003

The Wyoming Environmental Quality Council on December 1 and 2, 2003 held a public

hearing in the matter of the proposed approval of the addition of Section 14, “Emission Trading

Program Regulations” to the Wyoming Air Quality Standards and Regulations. The Council

received written comments from two individuals during that hearing; Paul Seby representing

Terry Ross of The Center for Energy and Economic Development - CEED (Respondent #1) and

Greg Schaefer representing Arch Coal (Respondent #2). 

Comments by these individuals were out of context with the purpose of the hearing and

were directed to Wyoming’s decision to submit a State Implementation Plan pursuant to Section

309 of the Regional Haze Rule. Since the Council allowed the comments into the public record,

we are responding for the record as well.

Respondent #1

1. It is premature for Wyoming to take any administrative action on the RHR by

choosing § 308 or § 309 as an option because of uncertainty created by American Corn

Growers Assoc. v EPA, 291 F.3d 1 (D.C.Cir 2002) decision which invalidated RHR especially

BART provisions.

Response: EPA’s approval of the Annex on June 5, 2003 addressed the impact of

the May 24, 2002 American Corn Growers Decision (Federal Register, Vol.68,

No. 108, pages 33766-33767). The approval notice states, “The American Corn

Growers court decision did not address the provisions in the regional haze rule

allowing States to adopt a trading program or other alternative measures in place

of source specific measures for BART sources.” The State of Wyoming has

developed a SIP under Section 309 of the Regional Haze Rule based on years of

work with the Grand Canyon Visibility Transport Commission (GCVTC) and the

Western Regional Air Partnership (WRAP) that identified the best approach to

address regional haze on the Colorado Plateau. The approach is flexible, and

addresses all of the significant sources of haze in the west. The 309 approach also

includes provisions allowing States to address other Class I areas beyond those on

the Colorado Plateau. The American Corn Growers decision does not change

these underlying reasons for implementing the regional approach allowed under

Section 309 of the Regional Haze Rule.
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2. Wyoming should not commit to a specific regional haze implementation

approach until after EPA has responded to the court’s remand of the RHR because § 309 is

one of the BART provisions affected by Corn Growers decision.

Response: See response to #1. Although CEED has filed a challenge to the Annex

- it is valid law until overturned/remanded. Pursuant to § 307(d)(7)(B) of the

CAA [42 USC 7607(d)(7)(B)], “reconsideration of a rule shall not postpone the

effectiveness of the rule. The effectiveness of the rule may be stayed by court

order for up to 3 months.” There is no stay order in effect for these rules.

3. Wyoming Cannot adopt a RHR § 309 SIP that is not consistent with the

Federal Clean Air Act because WS § 35-11-214 requires that “ . . . Any trading program

established shall be consistent with the Clean Air Act and regulations promulgated

thereunder, and consistent with ambient air quality standards.” § 309 is a BART provision

subject to additional EPA rulemaking and trading program is not consistent with CAA as it is

based on group BART approach.

Response: The analyses conducted by the WRAP did not utilize the Regional

Haze Rule BART provisions, nor did it consider factors included in a

determination of BART: the Costs of Compliance, the Energy & Non-Air Quality

Impacts, the Remaining Useful Life of the Source, the Existing Pollution Controls

at the source, and the Degree of Visibility Improvement Achieved. The analysis

considered only an “unofficial” list of BART-applicable sources within the region,

an evaluation of potential reductions, with a large uncertainty factor to account for

the fact that the list of sources and the effect of actual controls was unknown. 

This BART approximation exercise did not utilize the BART provisions of the

Regional Haze Rule. Therefore, when these provisions were remanded to EPA,

these invalidated BART provisions had absolutely no relationship to the Annex

Milestones and trading program defined in the 309 provisions. Section 169A of

the Clean Air Act gave EPA authority to 1) develop regulations to assure

reasonable progress toward reaching the national goal of “prevention of any future

and the remedying of any existing, impairment in visibility in mandatory Class I

Federal areas which impairment results from man-made air pollution.” 2)

develop regulations requiring states to submit SIPs containing emission limits,

compliance schedules, and other measures to make reasonable progress toward

meeting the national visibility goal [42 USC 7491(b)(2)]. Wyoming’s 309

Regional Haze State Implementation Plan and proposed rules meet these

requirements and is therefore consistent with the CAA.
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4. RHR § 309 Annex is not a rational or cost effective approach for improving

visual air quality in Wyoming.

Response: CEED asserts that the Annex is "flawed" because 1) it doesn’t achieve

humanly perceptible visibility improvement, 2) there was no adequate economic

analysis of the program costs to western states’ economies, 3) the comparison of

natural gas vs. coal costs didn’t accurately reflect the volatility of gas prices, and

4) the Annex would impose economic disincentives for new coal fired

powerplants. EPA’s approval of the Annex on June 5, 2003 states, “ The EPA

continues to believe that the milestones provide for ‘greater reasonable progress

than BART’ and for ‘steady and continuing progress’.” (FR Vol.68, No. 108,

page 33769) The GCVTC strategies that are the basis for Wyoming’s proposed

SIP are focused on achievable emission reductions from all of the emission

sources that contribute to regional haze. 40 CFR 51.309(g) allows States electing

to do so to address additional Class I areas, such as those in Wyoming, by

building on the strategies implemented under 309 and take full credit for visibility

improvement achieved through those strategies. The economic analysis for the

Annex supported the earlier GCVTC conclusions that an incentive-based market

trading program is more cost-effective than a traditional command-and-control

approach. An incentive-based program allows sources in all of the states to find

the most cost-effective strategies to reduce SO2 emissions that affect regional

haze on the Colorado Plateau as well as other Class I areas that were not

specifically addressed by the Annex. The Annex was negotiated by using the best

information available at the time. However, the WRAP included uncertainty

factors in the analysis to address changes in the underlying assumptions. More

importantly, a regional emission cap allows flexibility to adapt to changing

circumstances while still achieving the same or better environmental goals. If

natural gas prices remain high, the cap will create an incentive to over control

existing sources to make room under the cap for new, highly-controlled coal-fired

power plants. 

5. Wyoming Cannot meet the Requirements of RHR § 309 for a completed SIP

Submittal by 12/31/03.

Response: Wyoming has developed a SIP in accordance with the requirements of

Section 309 of the Regional Haze Rule and will submit that document and

supporting materials by the required deadline for submission for EPA’s six month

completeness review.
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Respondent #2

1. Dual SIPs

Response: The respondent alleges that because Wyoming’s Class I areas are not

on the Colorado Plateau and that Section 308 of the Regional Haze Rule addresses

all Class I areas that Wyoming will be required to submit a SIP under both Section

308 and 309 of the Regional Haze Rule. 40 CFR 51.309(g) allows a state electing

to submit a SIP pursuant to Section 309 to make a declaration that it will address

other Class I areas than those on the Colorado Plateau pursuant to the

requirements of Sections 309(g)(2) and 309(g)(3) rather than pursuant to Section

308. Wyoming has elected to do so.

2. Adjacent 308 States

Response: The SO2

 strategies are satisfied for Wyoming sources under the

provisions of Section 309(g). Regardless of timing issues and the success of

Senator Imhofe’s efforts, the states represented in the WRAP are committed to a

coordinated effort to address NOx

 & PM strategies. Wyoming and all of its

neighboring states are participants in the WRAP.

3. Minority Report Concerns

Response: The Milestone Curve was a politically defined shape, and the

decision on its shape was simply informed by assumptions such as power plant

retirement, new source emission rates, etc. The curve was not "based on" these

assumptions. For a response to the BART related concerns see the response to

concern #3 to Respondent #1 above.