6932 Federal Register / Vol. 90, No. 12 / Tuesday, January 21, 2025 / Proposed Rules 

1Areas statutorily designated as mandatory Class 

I Federal Areas consist of national parks exceeding 

6,000 acres, wilderness areas and national memorial 

parks exceeding 5,000 acres, and all international 

parks that were in existence on August 7, 1977. 

CAA 162(a). There are 156 mandatory Class I Areas. 

The list of areas to which the requirements of the 

visibility protection program apply is in 40 CFR 

part 81, subpart D. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations and Executive 

Order 14096: Revitalizing Our Nation’s 

Commitment to Environmental Justice 

for All 

Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on communities with 

environmental justice (EJ) concerns to 

the greatest extent practicable and 

permitted by law. Executive Order 

14096 (Revitalizing Our Nation’s 

Commitment to Environmental Justice 

for All, 88 FR 25251, April 26, 2023) 

builds on and supplements Executive 

Order 12898 and defines EJ as, among 

other things, ‘‘the just treatment and 

meaningful involvement of all people, 

regardless of income, race, color, 

national origin, Tribal affiliation, or 

disability, in agency decision-making 

and other Federal activities that affect 

human health and the environment.’’ 

The State did not evaluate EJ 

considerations as part of its SIP 

submittal; the CAA and applicable 

implementing regulations neither 

prohibit nor require such an evaluation. 

The EPA did not perform an EJ analysis 

and did not consider EJ in this action. 

Consideration of EJ is not required as 

part of this action, and there is no 

information in the record inconsistent 

with the stated goal of Executive Orders 

12898 and 14096 of achieving EJ for 

communities with EJ concerns. 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur dioxide, Volatile 

organic compounds. 

Dated: January 13, 2025. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2025–01220 Filed 1–17–25; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2024–0625; FRL–10253– 

01–R3] 

Air Plan Disapproval; West Virginia; 

Regional Haze State Implementation 

Plan for the Second Implementation 

Period 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to 

disapprove a revision to West Virginia’s 

State Implementation Plan (SIP) 

submitted by the West Virginia 

Department of Environmental Protection 

(WV DEP) on August 12, 2022. The SIP 

was submitted to satisfy applicable 

requirements under the Clean Air Act 

(CAA) and EPA’s Regional Haze Rule 

(RHR) for the program’s second 

planning period. If finalized, 

disapproval does not start a mandatory 

sanctions clock. The EPA is taking this 

action pursuant to sections 110 and 

169A of the Clean Air Act. 

DATES: Written comments must be 

received on or before February 20, 2025. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R03– 

OAR–2024–0625 at 

www.regulations.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, the EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

confidential business information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

www.epa.gov/dockets/commenting-epadockets. 

FOR FURTHER INFORMATION CONTACT: 

Adam Yarina, U.S. Environmental 

Protection Agency, Region 3, 1600 John 

F. Kennedy Boulevard, Philadelphia, 

Pennsylvania 19103–2852, at (215) 814– 

2108, or by email at yarina.Adam@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to the EPA. 

I. What action is the EPA proposing? 

The EPA is proposing to disapprove 

West Virginia’s Regional Haze plan for 

the second planning period. As required 

by sections 169A and 169B of the CAA, 

the Federal RHR at 40 CFR 51.308 calls 

for State and Federal agencies to work 

together to improve visibility in 156 

national parks and wilderness areas. 

The rule requires the States, in 

coordination with the EPA, the U.S. 

National Parks Service (NPS), U.S. Fish 

and Wildlife Service (FWS), the U.S. 

Forest Service (USFS), and other 

interested parties, to develop and 

implement air quality protection plans 

to reduce the pollution that causes 

visibility impairment in mandatory 

Class I Federal areas. Visibility 

impairing pollutants include fine and 

coarse particulate matter (PM) (e.g., 

sulfates, nitrates, organic carbon, 

elemental carbon, and soil dust) and 

their precursors (e.g., sulfur dioxide 

(SO2), oxides of nitrogen (NOX), and, in 

some cases, volatile organic compounds 

(VOC) and ammonia (NH3)). As 

discussed in further detail below, the 

EPA is proposing to find that West 

Virginia has submitted a Regional Haze 

plan that does not meet the statutory 

and regulatory Regional Haze 

requirements for the second planning 

period. The State’s 2022 submission can 

be found in the docket for this action. 

II. Background and Requirements for 

Regional Haze Plans 

A. Regional Haze Background 

In the 1977 CAA Amendments, 

Congress created a program for 

protecting visibility in the nation’s 

mandatory Class I Federal areas, which 

include certain national parks and 

wilderness areas.1 CAA section 169A. 

The CAA establishes as a national goal 

the ‘‘prevention of any future, and the 

remedying of any existing, impairment 

of visibility in mandatory class I Federal 


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2 In addition to the generally applicable Regional 

Haze provisions at 40 CFR 51.308, the EPA also 

promulgated regulations specific to addressing 

Regional Haze visibility impairment in Class I Areas 

on the Colorado Plateau at 40 CFR 51.309. The 

latter regulations are applicable only for specific 

jurisdictions’ Regional Haze plans submitted no 

later than December 17, 2007, and thus are not 

relevant here. 

3There are several ways to measure the amount 

of visibility impairment, i.e., haze. One such 

measurement is the deciview, which is the 

principal metric used by the RHR. Under many 

circumstances, a change in one deciview will be 

perceived by the human eye to be the same on both 

clear and hazy days. The deciview is unitless. It is 

proportional to the logarithm of the atmospheric 

extinction of light, which is the perceived dimming 

of light due to its being scattered and absorbed as 

it passes through the atmosphere. Atmospheric light 

extinction (bext.) is a metric used for expressing 

visibility and is measured in inverse megameters 

(Mm–1). The EPA’s Guidance on Regional Haze 

State Implementation Plans for the Second 

Implementation Period (‘‘2019 Guidance’’) offers 

the flexibility for the use of light extinction in 

certain cases. Light extinction can be simpler to use 

in calculations than deciviews, since it is not a 

logarithmic function. See, e.g., 2019 Guidance at 16, 

19, www.epa.gov/visibility/guidance-regional-hazestate-implementation-plans-secondimplementation-period,The EPA Office of Air 

Quality Planning and Standards, Research Triangle 

Park (August 20, 2019). The formula for the 

deciview is 10 ln (bext.)/10 Mm–1). 40 CFR 51.301. 

4The RHR expresses the statutory requirement for 

states to submit plans addressing out-of-state Class 

I Areas by providing that states must address 

visibility impairment ‘‘in each mandatory Class I 

Federal Area located outside the State that may be 

affected by emissions from within the State.’’ 40 

CFR 51.308(d), (f). 

5 In addition to each of the fifty states, the EPA 

also concluded that the Virgin Islands and District 

of Columbia must also submit Regional Haze SIPs 

because they either contain a Class I Area or contain 

sources whose emissions are reasonably anticipated 

to contribute Regional Haze in a Class I Area. See 

40 CFR 51.300(b), (d)(3). 

6The EPA established the URP framework in the 

1999 RHR to provide ‘‘an equitable analytical 

approach’’ to assessing the rate of visibility 

improvement at Class I Areas across the country. 

The start point for the URP analysis is 2004 and the 

endpoint was calculated based on the amount of 

visibility improvement that was anticipated to 

result from implementation of existing CAA 

programs over the period from the mid-1990s to 

approximately 2005. Assuming this rate of progress 

would continue into the future, the EPA determined 

that natural visibility conditions would be reached 

in 60 years, or 2064 (60 years from the baseline 

starting point of 2004). However, the EPA did not 

establish 2064 as the year by which the national 

goal must be reached. 64 FR 35731–32, July 1, 1999. 

That is, the URP and the 2064 date are not 

enforceable targets, but rather are tools that ‘‘allow 

for analytical comparisons between the rate of 

progress that would be achieved by the state’s 

chosen set of control measures and the URP.’’ (82 

FR 3078, 3084, January 10, 2017). 

areas which impairment results from 

manmade air pollution.’’ CAA section 

169A(a)(1). The CAA further directs the 

EPA to promulgate regulations to assure 

reasonable progress toward meeting this 

national goal. CAA section 169A(a)(4). 

On December 2, 1980, the EPA 

promulgated regulations to address 

visibility impairment in mandatory 

Class I Federal Areas (hereinafter 

referred to as ‘‘Class I Areas’’) that is 

‘‘reasonably attributable’’ to a single 

source or small group of sources. (45 FR 

80084, December 2, 1980). These 

regulations, codified at 40 CFR 51.300 

through 51.307, represented the first 

phase of the EPA’s efforts to address 

visibility impairment. In 1990, Congress 

added section 169B to the CAA to 

further address visibility impairment, 

specifically, impairment from Regional 

Haze. CAA 169B. The EPA promulgated 

the RHR, codified at 40 CFR 51.308,2 on 

July 1, 1999. (64 FR 35714, July 1, 1999). 

These Regional Haze regulations are a 

central component of the EPA’s 

comprehensive visibility protection 

program for Class I Areas. 

Regional Haze is visibility impairment 

that is produced by a multitude of 

anthropogenic sources and activities 

which are located across a broad 

geographic area and that emit pollutants 

that impair visibility. Visibility 

impairing pollutants include fine and 

coarse PM (e.g., sulfates, nitrates, 

organic carbon, elemental carbon, and 

soil dust) and their precursors (e.g., SO2, 

NOX, and, in some cases, VOC and 

NH3). Fine particle precursors react in 

the atmosphere to form fine PM (PM2.5), 

which impairs visibility by scattering 

and absorbing light. Visibility 

impairment reduces the perception of 

clarity and color, as well as visible 

distance.3

To address Regional Haze visibility 

impairment, the 1999 RHR established 

an iterative planning process that 

requires both States in which Class I 

Areas are located and States ‘‘the 

emissions from which may reasonably 

be anticipated to cause or contribute to 

any impairment of visibility’’ in a Class 

I Area to periodically submit SIP 

revisions to address such impairment. 

CAA section 169A(b)(2); 4 see also 40 

CFR 51.308(b), (f) (establishing 

submission dates for iterative Regional 

Haze SIP revisions); (64 FR 35768, July 

1, 1999). Under the CAA, each SIP 

submission must contain ‘‘a long-term 

(ten to fifteen years) strategy for making 

reasonable progress toward meeting the 

national goal,’’ CAA section 

169A(b)(2)(B); the initial round of SIP 

submissions also had to address the 

statutory requirement that certain older, 

larger sources of visibility impairing 

pollutants install and operate the best 

available retrofit technology (BART). 

CAA section 169A(b)(2)(A); 40 CFR 

51.308(d), (e). States’ first Regional Haze 

SIPs were due by December 17, 2007, 40 

CFR 51.308(b), with subsequent SIP 

submissions containing an updated 

long-term strategy (LTS) originally due 

July 31, 2018, and every ten years 

thereafter. (64 FR 35768, July 1, 1999). 

The EPA established in the 1999 RHR 

that all States either have Class I Areas 

within their borders or ‘‘contain sources 

whose emissions are reasonably 

anticipated to contribute to Regional 

Haze in a Class I Area’’; therefore, all 

States must submit Regional Haze 

SIPs.5 Id. at 35721. 

Much of the focus in the first 

implementation period of the Regional 

Haze program, which ran from 2007 

through 2018, was on satisfying States’ 

BART obligations. First implementation 

period SIPs were additionally required 

to contain a long-term strategy for 

making reasonable progress toward the 

national visibility goal, of which BART 

is one component. The core required 

elements for the first implementation 

period SIPs (other than BART) are laid 

out in 40 CFR 51.308(d). Those 

provisions required that States 

containing Class I Areas establish 

reasonable progress goals (RPGs) that 

are measured in deciviews and reflect 

the anticipated visibility conditions at 

the end of the implementation period 

including from implementation of 

States’ long-term strategy. The first 

planning period RPGs were required to 

provide for an improvement in visibility 

for the most impaired days over the 

period of the implementation plan and 

ensure no degradation in visibility for 

the least impaired days over the same 

period. In establishing the RPGs for any 

Class I Area in a State, the State was 

required to consider four statutory 

factors: the costs of compliance, the 

time necessary for compliance, the 

energy and non-air quality 

environmental impacts of compliance, 

and the remaining useful life of any 

potentially affected sources. CAA 

section 169A(g)(1); 40 CFR 51.308(d)(1). 

States were also required to calculate 

baseline (using the five-year period of 

2000–2004) and natural visibility 

conditions (i.e., visibility conditions 

without anthropogenic visibility 

impairment) for each Class I Area, and 

to calculate the linear rate of progress 

needed to attain natural visibility 

conditions, assuming a starting point of 

baseline visibility conditions in 2004 

and ending with natural conditions in 

2064. This linear interpolation is known 

as the uniform rate of progress (URP) 

and is used as a tracking metric to help 

States assess the amount of progress 

they are making towards the national 

visibility goal over time in each Class I 

Area.6 40 CFR 51.308(d)(1)(i)(B), (d)(2). 

The 1999 RHR also provided that States’ 

long-term strategy must include the 

‘‘enforceable emissions limitations, 

compliance, schedules, and other 


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7The EPA’s regulations define ‘‘Federal Land 

Manager’’ as ‘‘the Secretary of the department with 

authority over the Federal Class I Area (or the 

Secretary’s designee) or, with respect to RooseveltCampobello International Park, the Chairman of the 

Roosevelt-Campobello International Park 

Commission.’’ 40 CFR 51.301. 

8 Guidance on Regional Haze State 

Implementation Plans for the Second 

Implementation Period, https://www.epa.gov/ 

visibility/guidance-regional-haze-stateimplementation-plans-second-implementationperiod, EPA Office of Air Quality Planning and 

Standards, Research Triangle Park (August 20, 

2019). 

9Clarifications Regarding Regional Haze State 

Implementation Plans for the Second 

Implementation Period, https://www.epa.gov/ 

system/files/documents/2021-07/clarificationsregarding-regional-haze-state-implementationplans-for-the-second-implementation-period.pdf, 

EPA Office of Air Quality Planning and Standards, 

Research Triangle Park (July 8, 2021). 

10Technical Guidance on Tracking Visibility 

Progress for the Second Implementation Period of 

the Regional Haze Program. https://www.epa.gov/ 

visibility/technical-guidance-tracking-visibilityprogress-second-implementation-period-regional, 

EPA Office of Air Quality Planning and Standards, 

Research Triangle Park. (December 20, 2018). 

11Recommendation for the Use of Patched and 

Substituted Data and Clarification of Data 

Completeness for Tracking Visibility Progress for 

the Second Implementation Period of the Regional 

Haze Program, www.epa.gov/visibility/memo-andtechnical-addendum-ambient-data-usage-andcompleteness-regional-haze-program. EPA Office of 

Air Quality Planning and Standards, Research 

Triangle Park (June 3, 2020). 

12See, e.g., H.R. Rep No. 95–294 at 205 (‘‘In 

determining how to best remedy the growing 

visibility problem in these areas of great scenic 

importance, the committee realizes that as a matter 

of equity, the national ambient air quality standards 

cannot be revised to adequately protect visibility in 

all areas of the country.’’), (‘‘the mandatory Class I 

increments of [the PSD program] do not adequately 

protect visibility in Class I Areas’’). 

13RPOs are sometimes also referred to as ‘‘multijurisdictional organizations,’’ or MJOs. For the 

purposes of this document, the terms RPO and MJO 

are synonymous. 

measures as necessary to achieve the 

reasonable progress goals.’’ 40 CFR 

51.308(d)(3). In establishing their longterm strategy, States are required to 

consult with other States that also 

contribute to visibility impairment in a 

given Class I Area and include all 

measures necessary to obtain their 

shares of the emission reductions 

needed to meet the RPGs. 40 CFR 

51.308(d)(3)(i) and (ii). Section 

51.308(d) also contains seven additional 

factors States must consider in 

formulating their long-term strategy, 40 

CFR 51.308(d)(3)(v), as well as 

provisions governing monitoring and 

other implementation plan 

requirements. 40 CFR 51.308(d)(4). 

Finally, the 1999 RHR required States to 

submit periodic progress reports—SIP 

revisions due every five years that 

contain information on States’ 

implementation of their Regional Haze 

plans and an assessment of whether 

anything additional is needed to make 

reasonable progress, see 40 CFR 

51.308(g), (h)—and to consult with the 

Federal Land Manager(s) 7 (FLMs) 

responsible for each Class I Area 

according to the requirements in CAA 

section 169A(d) and 40 CFR 51.308(i). 

On January 10, 2017, the EPA 

promulgated revisions to the RHR, (82 

FR 3078, January 10, 2017), that apply 

for the second and subsequent 

implementation periods. The 2017 

rulemaking made several changes to the 

requirements for Regional Haze SIPs to 

clarify States’ obligations and streamline 

certain Regional Haze requirements. The 

revisions to the Regional Haze program 

for the second and subsequent 

implementation periods focused on the 

requirement that States’ SIPs contain 

long-term strategies for making 

reasonable progress towards the 

national visibility goal. The reasonable 

progress requirements as revised in the 

2017 rulemaking (referred to here as the 

2017 RHR Revisions) are codified at 40 

CFR 51.308(f). Among other changes, 

the 2017 RHR Revisions adjusted the 

deadline for States to submit their 

second implementation period SIPs 

from July 31, 2018, to July 31, 2021, 

clarified the order of analysis and the 

relationship between RPGs and the 

long-term strategy, and focused on 

making visibility improvements on the 

days with the most anthropogenic 

visibility impairment, as opposed to the 

days with the most visibility 

impairment overall. The EPA also 

revised requirements of the visibility 

protection program related to periodic 

progress reports and FLM consultation. 

The specific requirements applicable to 

second implementation period Regional 

Haze SIP submissions are addressed in 

detail below. 

The EPA provided guidance to the 

States for their second implementation 

period SIP submissions in the preamble 

to the 2017 RHR Revisions as well as in 

subsequent, stand-alone guidance 

documents. In August 2019, the EPA 

issued ‘‘Guidance on Regional Haze 

State Implementation Plans for the 

Second Implementation Period’’ (‘‘2019 

Guidance’’).8 On July 8, 2021, the EPA 

issued a memorandum containing 

‘‘Clarifications Regarding Regional Haze 

State Implementation Plans for the 

Second Implementation Period’’ (‘‘2021 

Clarifications Memo’’).9 Additionally, 

the EPA further clarified the 

recommended procedures for processing 

ambient visibility data and optionally 

adjusting the URP to account for 

international anthropogenic and 

prescribed fire impacts in two technical 

guidance documents: the December 

2018 ‘‘Technical Guidance on Tracking 

Visibility Progress for the Second 

Implementation Period of the Regional 

Haze Program’’ (‘‘2018 Visibility 

Tracking Guidance’’),10 and the June 

2020 ‘‘Recommendation for the Use of 

Patched and Substituted Data and 

Clarification of Data Completeness for 

Tracking Visibility Progress for the 

Second Implementation Period of the 

Regional Haze Program’’ and associated 

Technical Addendum (‘‘2020 Data 

Completeness Memo’’).11

As previously explained in the 2021 

Clarifications Memo, the EPA intends 

the second implementation period of 

the Regional Haze program to secure 

meaningful reductions in visibility 

impairing pollutants that build on the 

significant progress States have 

achieved to date. The Agency also 

recognizes that analyses regarding 

reasonable progress are state-specific 

and that, based on States’ and sources’ 

individual circumstances, what 

constitutes reasonable reductions in 

visibility impairing pollutants will vary 

from state-to-state. While there exist 

many opportunities for States to 

leverage both ongoing and upcoming 

emission reductions under other CAA 

programs, the Agency expects States to 

undertake rigorous reasonable progress 

analyses that identify further 

opportunities to advance the national 

visibility goal consistent with the 

statutory and regulatory requirements. 

See generally 2021 Clarifications Memo. 

This is consistent with Congress’s 

determination that a visibility 

protection program is needed in 

addition to the CAA’s national ambient 

air quality standards (NAAQS) and 

prevention of significant deterioration 

(PSD) programs, as further emission 

reductions may be necessary to 

adequately protect visibility in Class I 

Areas throughout the country.12

B. Roles of Agencies in Addressing 

Regional Haze 

Because the air pollutants and 

pollution affecting visibility in Class I 

Areas can be transported over long 

distances, successful implementation of 

the Regional Haze program requires 

long-term, regional coordination among 

multiple jurisdictions and agencies that 

have responsibility for Class I Areas and 

the emissions that impact visibility in 

those Areas. In order to address 

Regional Haze, States need to develop 

strategies in coordination with one 

another, considering the effect of 

emissions from one jurisdiction on the 

air quality in another. Five regional 

planning organizations (RPOs),13 which 

include representation from State and 


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14EPA explained in the 2017 RHR Revisions that 

we were adopting new regulatory language in 40 

CFR 51.308(f) that, unlike the structure in 

51.308(d), ‘‘tracked the actual planning sequence.’’ 

(82 FR 3091, January 10, 2017). 

15The five ‘‘additional factors’’ for consideration 

in section 51.308(f)(2)(iv) are distinct from the four 

factors listed in CAA section 169A(g)(1) and 40 CFR 

51.308(f)(2)(i) that states must consider and apply 

to sources in determining reasonable progress. 

tribal governments, the EPA, and FLMs, 

were developed in the lead-up to the 

first implementation period to address 

Regional Haze. RPOs evaluate technical 

information to better understand how 

emissions from State and tribal land 

impact Class I Areas across the country, 

pursue the development of regional 

strategies to reduce emissions of PM and 

other pollutants leading to Regional 

Haze, and help States meet the 

consultation requirements of the RHR. 

The Visibility Improvement State and 

Tribal Association of the Southeast 

(VISTAS), one of the five RPOs 

described above, is a collaborative effort 

of State governments, tribal 

governments, and various Federal 

agencies established to initiate and 

coordinate activities associated with the 

management of regional haze, visibility, 

and other air quality issues in the 

Southeastern region of the United 

States. Member States and tribes include 

Alabama, Florida, Georgia, Kentucky, 

Mississippi, North Carolina, South 

Carolina, Tennessee, Virginia, and West 

Virginia, the Eastern Band of Cherokee 

Indians, and Knox County, Tennessee 

(representing the 17 Southeastern local 

air agencies). The Federal partner 

members of VISTAS are the EPA, NPS, 

FWS, and USFS. 

III. Requirements for Regional Haze 

Plans for the Second Implementation 

Period 

Under the CAA and THE EPA’s 

regulations, all 50 States, the District of 

Columbia, and the U.S. Virgin Islands 

are required to submit regional haze 

SIPs satisfying the applicable 

requirements for the second 

implementation period of the regional 

haze program by July 31, 2021. Each 

State’s SIP must contain a long-term 

strategy for making reasonable progress 

toward meeting the national goal of 

remedying any existing and preventing 

any future anthropogenic visibility 

impairment in Class I areas. CAA 

169A(b)(2)(B). To this end, 40 CFR 

51.308(f) lays out the process by which 

States determine what constitutes their 

long-term strategy, with the order of the 

requirements in 40 CFR 51.308(f)(1) 

through (3) generally mirroring the 

order of the steps in the reasonable 

progress analysis 14 and 40 CFR 

51.308(f)(4) through (6) containing 

additional, related requirements. 

Broadly speaking, a State first must 

identify the Class I areas within the 

State and determine the Class I areas 

outside the State in which visibility may 

be affected by emissions from the State. 

These are the Class I areas that must be 

addressed in the State’s long-term 

strategy. See 40 CFR 51.308(f) and (f)(2). 

For each Class I area within its borders, 

a State must then calculate the baseline, 

current, and natural visibility 

conditions for that area, as well as the 

visibility improvement made to date 

and the URP. See 40 CFR 51.308(f)(1). 

Each State having a Class I area and/or 

emissions that may affect visibility in a 

Class I area must then develop a longterm strategy that includes the 

enforceable emission limitations, 

compliance schedules, and other 

measures that are necessary to make 

reasonable progress in such areas. A 

reasonable progress determination is 

based on applying the four factors in 

CAA section 169A(g)(1) to sources of 

visibility-impairing pollutants that the 

State has selected to assess for controls 

for the second implementation period. 

Additionally, as further explained 

below, the RHR at 40 CFR 

51.3108(f)(2)(iv) separately provides five 

‘‘additional factors’’ 15 that States must 

consider in developing their long-term 

strategy. See 40 CFR 51.308(f)(2). A 

State evaluates potential emission 

reduction measures for those selected 

sources and determines which are 

necessary to make reasonable progress. 

Those measures are then incorporated 

into the State’s long-term strategy. After 

a State has developed its long-term 

strategy, it then establishes RPGs for 

each Class I area within its borders by 

modeling the visibility impacts of all 

reasonable progress controls at the end 

of the second implementation period, 

i.e., in 2028, as well as the impacts of 

other requirements of the CAA. The 

RPGs include reasonable progress 

controls not only for sources in the State 

in which the Class I area is located, but 

also for sources in other States that 

contribute to visibility impairment in 

that area. The RPGs are then compared 

to the baseline visibility conditions and 

the URP to ensure that progress is being 

made towards the statutory goal of 

preventing any future and remedying 

any existing anthropogenic visibility 

impairment in Class I areas. 40 CFR 

51.308(f)(2) and (3). 

In addition to satisfying the 

requirements at 40 CFR 51.308(f) related 

to reasonable progress, the regional haze 

SIP submissions revisions due by July 

31, 2021, for the second implementation 

period must address the requirements in 

40 CFR 51.308(g)(1) through (5) 

pertaining to periodic reports describing 

progress towards the RPGs, 40 CFR 

51.308(f)(5), as well as requirements for 

FLM consultation that apply to all 

visibility protection SIPs and SIP 

revisions. 40 CFR 51.308(i). 

A State must submit its regional haze 

SIP and subsequent SIP revisions to the 

EPA according to the requirements 

applicable to all SIP revisions under the 

CAA and the EPA’s regulations. See 

CAA 169(b)(2); CAA 110(a). Upon EPA 

approval, a SIP is enforceable by the 

Agency and the public under the CAA. 

If the EPA finds that a State fails to 

make a required SIP revision, or if the 

EPA finds that a State’s SIP is 

incomplete or disapproves the SIP, the 

Agency must promulgate a Federal 

implementation plan (FIP) that satisfies 

the applicable requirements. CAA 

110(c)(1). 

A. Identification of Class I Areas 

The first step in developing a regional 

haze SIP is for a State to determine 

which Class I areas, in addition to those 

within its borders, ‘‘may be affected’’ by 

emissions from within the State. In the 

1999 RHR, the EPA determined that all 

States contribute to visibility 

impairment in at least one Class I area, 

64 FR 35720–22, July 1, 1999, and 

explained that the statute and 

regulations lay out an ‘‘extremely low 

triggering threshold’’ for determining 

‘‘whether States should be required to 

engage in air quality planning and 

analysis as a prerequisite to determining 

the need for control of emissions from 

sources within their State.’’ Id. at 35721. 

A State must determine which Class 

I areas must be addressed by its SIP by 

evaluating the total emissions of 

visibility impairing pollutants from all 

sources within the State. While the RHR 

does not require this evaluation to be 

conducted in any particular manner, the 

EPA’s 2019 Guidance provides 

recommendations for how such an 

assessment might be accomplished, 

including by, where appropriate, using 

the determinations previously made for 

the first implementation period. 2019 

Guidance at 8–9. In addition, the 

determination of which Class I areas 

may be affected by a State’s emissions 

is subject to the requirement in 40 CFR 

51.308(f)(2)(iii) to ‘‘document the 

technical basis, including modeling, 

monitoring, cost, engineering, and 

emissions information, on which the 

State is relying to determine the 

emission reduction measures that are 

necessary to make reasonable progress 

in each mandatory Class I Federal area 

it affects.’’ 


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16The 2018 Visibility Tracking Guidance 

references and relies on parts of the 2003 Tracking 

Guidance: ‘‘Guidance for Tracking Progress Under 

the Regional Haze Rule,’’ which can be found at 

www3.epa.gov/ttnamti1/files/ambient/visible/ 

tracking.pdf. 

17This document also refers to the 20% clearest 

and 20% most anthropogenically impaired days as 

the ‘‘clearest’’ and ‘‘most impaired’’ or ‘‘most 

anthropogenically impaired’’ days, respectively. 

18The RHR at 40 CFR 51.308(f)(1)(ii) contains an 

error related to the requirement for calculating two 

sets of natural conditions values. The rule says 

‘‘most impaired days or the clearest days’’ where it 

should say ‘‘most impaired days and clearest days.’’ 

This is an error that was intended to be corrected 

in the 2017 RHR Revisions but did not get corrected 

in the final rule language. This is supported by the 

preamble text at 82 FR 3098, January 10, 2017: ‘‘In 

the final version of 40 CFR 51.308(f)(1)(ii), an 

occurrence of ‘‘or’’ has been corrected to ‘‘and’’ to 

indicate that natural visibility conditions for both 

the most impaired days and the clearest days must 

be based on available monitoring information.’’ 

19Being on or below the URP is not a ‘‘safe 

harbor’’; i.e., achieving the URP does not mean that 

a Class I area is making ‘‘reasonable progress’’ and 

does not relieve a state from using the four statutory 

factors to determine what level of control is needed 

to achieve such progress. See, e.g., 82 FR 3078 at 

3093, January 10, 2017. 

B. Calculations of Baseline, Current, 

and Natural Visibility Conditions; 

Progress to Date; and the Uniform Rate 

of Progress 

As part of assessing whether a SIP 

submission for the second 

implementation period is providing for 

reasonable progress towards the 

national visibility goal, the RHR 

contains requirements in 40 CFR 

51.308(f)(1) related to tracking visibility 

improvement over time. The 

requirements of this section apply only 

to States having Class I areas within 

their borders; the required calculations 

must be made for each such Class I area. 

The EPA’s 2018 Visibility Tracking 

Guidance 16 provides recommendations 

to assist States in satisfying their 

obligations under 40 CFR 51.308(f)(1); 

specifically, in developing information 

on baseline, current, and natural 

visibility conditions, and in making 

optional adjustments to the URP to 

account for the impacts of international 

anthropogenic emissions and prescribed 

fires. See 82 FR 3078 at 3103–05, 

January 10, 2017. 

The RHR requires tracking of 

visibility conditions on two sets of days: 

the clearest and the most impaired days. 

Visibility conditions for both sets of 

days are expressed as the average 

deciview index for the relevant five-year 

period (the period representing baseline 

or current visibility conditions). The 

RHR provides that the relevant sets of 

days for visibility tracking purposes are 

the 20% clearest (the 20% of monitored 

days in a calendar year with the lowest 

values of the deciview index) and 20% 

most impaired days (the 20% of 

monitored days in a calendar year with 

the highest amounts of anthropogenic 

visibility impairment).17 40 CFR 51.301. 

A State must calculate visibility 

conditions for both the 20% clearest and 

20% most impaired days for the 

baseline period of 2000–2004 and the 

most recent five-year period for which 

visibility monitoring data are available 

(representing current visibility 

conditions). 40 CFR 51.308(f)(1)(i) and 

(iii). States must also calculate natural 

visibility conditions for the clearest and 

most impaired days,18 by estimating the 

conditions that would exist on those 

two sets of days absent anthropogenic 

visibility impairment. 40 CFR 

51.308(f)(1)(ii). Using all these data, 

States must then calculate, for each 

Class I area, the amount of progress 

made since the baseline period (2000– 

2004) and how much improvement is 

left to achieve in order to reach natural 

visibility conditions. 

Using the data for the set of most 

impaired days only, States must plot a 

line between visibility conditions in the 

baseline period and natural visibility 

conditions for each Class I area to 

determine the URP—the amount of 

visibility improvement, measured in 

deciviews, that would need to be 

achieved during each implementation 

period in order to achieve natural 

visibility conditions by the end of 2064. 

The URP is used in later steps of the 

reasonable progress analysis for 

informational purposes and to provide a 

non-enforceable benchmark against 

which to assess a Class I area’s rate of 

visibility improvement.19 Additionally, 

in the 2017 RHR Revisions, the EPA 

provided States the option of proposing 

to adjust the endpoint of the URP to 

account for impacts of anthropogenic 

sources outside the United States and/ 

or impacts of certain types of wildland 

prescribed fires. These adjustments, 

which must be approved by the EPA, 

are intended to avoid any perception 

that States should compensate for 

impacts from international 

anthropogenic sources and to give States 

the flexibility to determine that limiting 

the use of wildland-prescribed fire is 

not necessary for reasonable progress. 

82 FR 3078 at 3107 footnote 116, 

January 10, 2017. 

The EPA’s 2018 Visibility Tracking 

Guidance can be used to help satisfy the 

40 CFR 51.308(f)(1) requirements, 

including in developing information on 

baseline, current, and natural visibility 

conditions, and in making optional 

adjustments to the URP. In addition, the 

2020 Data Completeness Memo provides 

recommendations on the data 

completeness language referenced in 40 

CFR 51.308(f)(1)(i) and provides 

updated natural conditions estimates for 

each Class I area. 

C. Long-Term Strategy for Regional 

Haze 

The core component of a regional 

haze SIP submission is a long-term 

strategy that addresses regional haze in 

each Class I area within a State’s borders 

and each Class I area that may be 

affected by emissions from the State. 

The long-term strategy ‘‘must include 

the enforceable emissions limitations, 

compliance schedules, and other 

measures that are necessary to make 

reasonable progress, as determined 

pursuant to (f)(2)(i) through (iv).’’ 40 

CFR 51.308(f)(2). The amount of 

progress that is ‘‘reasonable progress’’ is 

based on applying the four statutory 

factors in CAA section 169A(g)(1) in an 

evaluation of potential control options 

for sources of visibility impairing 

pollutants, which is referred to as a 

‘‘four-factor’’ analysis. The outcome of 

that analysis is the emission reduction 

measures that a particular source or 

group of sources needs to implement in 

order to make reasonable progress 

towards the national visibility goal. See 

40 CFR 51.308(f)(2)(i). Emission 

reduction measures that are necessary to 

make reasonable progress may be either 

new, additional control measures for a 

source, or they may be the existing 

emission reduction measures that a 

source is already implementing. See 

2019 Guidance at 43; 2021 Clarifications 

Memo at 8–10. Such measures must be 

represented by ‘‘enforceable emissions 

limitations, compliance schedules, and 

other measures’’ (i.e., any additional 

compliance tools) in a State’s long-term 

strategy in its SIP. 40 CFR 51.308(f)(2). 

Section 51.308(f)(2)(i) provides the 

requirements for the four-factor 

analysis. The first step of this analysis 

entails selecting the sources to be 

evaluated for emission reduction 

measures; to this end, the RHR requires 

States to consider ‘‘major and minor 

stationary sources or groups of sources, 

mobile sources, and area sources’’ of 

visibility impairing pollutants for 

potential four-factor control analysis. 40 

CFR 51.308(f)(2)(i). A threshold 

question at this step is which visibility 

impairing pollutants will be analyzed. 

As the EPA previously explained, 

consistent with the first implementation 

period, the EPA generally expects that 

each State will analyze at least SO2 and 

NOX in selecting sources and 

determining control measures. See 2019 

Guidance at 12, 2021 Clarifications 

Memo at 4. A State that chooses not to 

consider at least these two pollutants 

should demonstrate why such 


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20Similarly, in responding to comments on the 

2017 RHR Revisions EPA explained that ‘‘[a] state 

should not fail to address its many relatively lowimpact sources merely because it only has such 

sources and another state has even more low-impact 

sources and/or some high impact sources.’’ 

Responses to Comments on Protection of Visibility: 

Amendments to Requirements for State Plans; 

Proposed Rule (81 FR 26942, May 4, 2016) at 87– 

88. 

21The CAA provides that, ‘‘[i]n determining 

reasonable progress there shall be taken into 

consideration’’ the four statutory factors. CAA 

169A(g)(1). However, in addition to four-factor 

analyses for selected sources, groups of sources, or 

source categories, a state may also consider 

additional emission reduction measures for 

inclusion in its long-term strategy, e.g., from other 

newly adopted, on-the-books, or on-the-way rules 

and measures for sources not selected for four-factor 

analysis for the second planning period. 

22 ‘‘Each source’’ or ‘‘particular source’’ is used 

here as shorthand. While a source-specific analysis 

is one way of applying the four factors, neither the 

statute nor the RHR requires states to evaluate 

individual sources. Rather, states have ‘‘the 

flexibility to conduct four-factor analyses for 

specific sources, groups of sources or even entire 

source categories, depending on state policy 

preferences and the specific circumstances of each 

state.’’ 82 FR 3078 at 3088, January 10, 2017. 

However, not all approaches to grouping sources for 

four-factor analysis are necessarily reasonable; the 

reasonableness of grouping sources in any 

particular instance will depend on the 

circumstances and the manner in which grouping 

is conducted. If it is feasible to establish and 

enforce different requirements for sources or 

subgroups of sources, and if relevant factors can be 

quantified for those sources or subgroups, then 

states should make a separate reasonable progress 

determination for each source or subgroup. 2021 

Clarifications Memo at 7–8. 

23See, e.g., Responses to Comments on Protection 

of Visibility: Amendments to Requirements for 

State Plans; Proposed Rule (81 FR 26942, May 4, 

2016), Docket Number EPA–HQ–OAR–2015–0531, 

U.S. Environmental Protection Agency at 186; 2019 

Guidance at 36–37. 

consideration would be unreasonable. 

2021 Clarifications Memo at 4. 

While States have the option to 

analyze all sources, the 2019 Guidance 

explains that ‘‘an analysis of control 

measures is not required for every 

source in each implementation period,’’ 

and that ‘‘[s]electing a set of sources for 

analysis of control measures in each 

implementation period is . . . 

consistent with the Regional Haze Rule, 

which sets up an iterative planning 

process and anticipates that a State may 

not need to analyze control measures for 

all its sources in a given SIP revision.’’ 

2019 Guidance at 9. However, given that 

source selection is the basis of all 

subsequent control determinations, a 

reasonable source selection process 

‘‘should be designed and conducted to 

ensure that source selection results in a 

set of pollutants and sources the 

evaluation of which has the potential to 

meaningfully reduce their contributions 

to visibility impairment.’’ 2021 

Clarifications Memo at 3. 

The EPA explained in the 2021 

Clarifications Memo that each State has 

an obligation to submit a long-term 

strategy that addresses the regional haze 

visibility impairment that results from 

emissions from within that State. Thus, 

source selection should focus on the instate contribution to visibility 

impairment and be designed to capture 

a meaningful portion of the State’s total 

contribution to visibility impairment in 

Class I areas. A State should not decline 

to select its largest in-state sources on 

the basis that there are even larger outof-state contributors. 2021 Clarifications 

Memo at 4.20

Thus, while States have discretion to 

choose any source selection 

methodology that is reasonable, 

whatever choices they make should be 

reasonably explained. To this end, 40 

CFR 51.308(f)(2)(i) requires that a State’s 

SIP submission include ‘‘a description 

of the criteria it used to determine 

which sources or groups of sources it 

evaluated.’’ The technical basis for 

source selection, which may include 

methods for quantifying potential 

visibility impacts such as emissions 

divided by distance metrics, trajectory 

analyses, residence time analyses, and/ 

or photochemical modeling, must also 

be appropriately documented, as 

required by 40 CFR 51.308 (f)(2)(iii). 

Once a State has selected the set of 

sources, the next step is to determine 

the emissions reduction measures for 

those sources that are necessary to make 

reasonable progress for the second 

implementation period.21 This is 

accomplished by considering the four 

factors—‘‘the costs of compliance, the 

time necessary for compliance, and the 

energy and non-air quality 

environmental impacts of compliance, 

and the remaining useful life of any 

existing source subject to such 

requirements.’’ CAA 169A(g)(1). The 

EPA has explained that the four-factor 

analysis is an assessment of potential 

emission reduction measures (i.e., 

control options) for sources; ‘‘use of the 

terms ‘compliance’ and ‘subject to such 

requirements’ in section 169A(g)(1) 

strongly indicates that Congress 

intended the relevant determination to 

be the requirements with which sources 

would have to comply in order to satisfy 

the CAA’s reasonable progress 

mandate.’’ 82 FR 3078 at 3091, January 

10, 2017. Thus, for each source it has 

selected for four-factor analysis,22 a 

State must consider a ‘‘meaningful set’’ 

of technically feasible control options 

for reducing emissions of visibility 

impairing pollutants. Id. at 3088. The 

2019 Guidance provides that ‘‘[a] state 

must reasonably pick and justify the 

measures that it will consider, 

recognizing that there is no statutory or 

regulatory requirement to consider all 

technically feasible measures or any 

particular measures. A range of 

technically feasible measures available 

to reduce emissions would be one way 

to justify a reasonable set.’’ 2019 

Guidance at 29. 

The EPA’s 2021 Clarifications Memo 

provides further guidance on what 

constitutes a reasonable set of control 

options for consideration: ‘‘A reasonable 

four-factor analysis will consider the 

full range of potentially reasonable 

options for reducing emissions.’’ 2021 

Clarifications Memo at 7. In addition to 

add-on controls and other retrofits (i.e., 

new emission reduction measures for 

sources), The EPA explained that States 

should generally analyze efficiency 

improvements for sources’ existing 

measures as control options in their 

four-factor analyses, as in many cases 

such improvements are reasonable given 

that they typically involve only 

additional operation and maintenance 

costs. Additionally, the 2021 

Clarifications Memo provides that States 

that have assumed a higher emission 

rate than a source has achieved or could 

potentially achieve using its existing 

measures should also consider lower 

emission rates as potential control 

options. That is, a State should consider 

a source’s recent actual and projected 

emission rates to determine if it could 

reasonably attain lower emission rates 

with its existing measures. If so, the 

State should analyze the lower emission 

rate as a control option for reducing 

emissions. 2021 Clarifications Memo at 

7. The EPA’s recommendations to 

analyze potential efficiency 

improvements and achievable lower 

emission rates apply to both sources 

that have been selected for four-factor 

analysis and those that have forgone a 

four-factor analysis on the basis of 

existing ‘‘effective controls.’’ See 2021 

Clarifications Memo at 5, 10. 

After identifying a reasonable set of 

potential control options for the sources 

it has selected, a State then collects 

information on the four factors with 

regard to each option identified. The 

EPA has also explained that, in addition 

to the four statutory factors, States have 

flexibility under the CAA and RHR to 

reasonably consider visibility benefits as 

an additional factor alongside the four 

statutory factors.23 The 2019 Guidance 

provides recommendations for the types 

of information that can be used to 

characterize the four factors (with or 

without visibility), as well as ways in 

which States might reasonably consider 

and balance that information to 

determine which of the potential control 

options is necessary to make reasonable 


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24States may choose to, but are not required to, 

include measures in their long-term strategies 

beyond just the emission reduction measures that 

are necessary for reasonable progress. See 2021 

Clarifications Memo at 16. For example, states with 

smoke management programs may choose to submit 

their smoke management plans to EPA for inclusion 

in their SIPs but are not required to do so. See, e.g., 

82 FR 3078 at 3108–09, January 10, 2017 

(requirement to consider smoke management 

practices and smoke management programs under 

40 CFR 51.308(f)(2)(iv) does not require states to 

adopt such practices or programs into their SIPs, 

although they may elect to do so). 

25See Arizona ex rel. Darwin v. U.S. EPA, 815 

F.3d 519, 531 (9th Cir. 2016); Nebraska v. U.S. EPA, 

812 F.3d 662, 668 (8th Cir. 2016); North Dakota v. 

EPA, 730 F.3d 750, 761 (8th Cir. 2013); Oklahoma 

v. EPA, 723 F.3d 1201, 1206, 1208–10 (10th Cir. 

2013); cf. also Nat’l Parks Conservation Ass’n v. 

EPA, 803 F.3d 151, 165 (3d Cir. 2015); Alaska Dep’t 

of Envtl. Conservation v. EPA, 540 U.S. 461, 485, 

490 (2004). 

26The five ‘‘additional factors’’ for consideration 

in section 51.308(f)(2)(iv) are distinct from the four 

factors listed in CAA section 169A(g)(1) and 40 CFR 

51.308(f)(2)(i) that states must consider and apply 

to sources in determining reasonable progress. 

progress. See 2019 Guidance at 30–36. 

The 2021 Clarifications Memo contains 

further guidance on how States can 

reasonably consider modeled visibility 

impacts or benefits in the context of a 

four-factor analysis. 2021 Clarifications 

Memo at 12–13, 14–15. Specifically, the 

EPA explained that while visibility can 

reasonably be used when comparing 

and choosing between multiple 

reasonable control options, it should not 

be used to summarily reject controls 

that are reasonable given the four 

statutory factors. 2021 Clarifications 

Memo at 13. Ultimately, while States 

have discretion to reasonably weigh the 

factors and to determine what level of 

control is needed, 40 CFR 51.308(f)(2)(i) 

provides that a State ‘‘must include in 

its implementation plan a description of 

. . . how the four factors were taken 

into consideration in selecting the 

measure for inclusion in its long-term 

strategy.’’ 

As explained previously, 40 CFR 

51.308(f)(2)(i) requires States to 

determine the emission reduction 

measures for sources that are necessary 

to make reasonable progress by 

considering the four factors. Pursuant to 

40 CFR 51.308(f)(2), measures that are 

necessary to make reasonable progress 

towards the national visibility goal must 

be included in a State’s long-term 

strategy and in its SIP.24 If the outcome 

of a four-factor analysis is a new, 

additional emission reduction measure 

for a source, that new measure is 

necessary to make reasonable progress 

towards remedying existing 

anthropogenic visibility impairment and 

must be included in the SIP. If the 

outcome of a four-factor analysis is that 

no new measures are reasonable for a 

source, continued implementation of 

the source’s existing measures is 

generally necessary to prevent future 

emission increases and thus to make 

reasonable progress towards the second 

part of the national visibility goal: 

preventing future anthropogenic 

visibility impairment. See CAA 

169A(a)(1). That is, when the result of 

a four-factor analysis is that no new 

measures are necessary to make 

reasonable progress, the source’s 

existing measures are generally 

necessary to make reasonable progress 

and must be included in the SIP. 

However, there may be circumstances in 

which a State can demonstrate that a 

source’s existing measures are not 

necessary to make reasonable progress. 

Specifically, if a State can demonstrate 

that a source will continue to 

implement its existing measures and 

will not increase its emission rate, it 

may not be necessary to have those 

measures in the long-term strategy in 

order to prevent future emission 

increases and future visibility 

impairment. The EPA’s 2021 

Clarifications Memo provides further 

explanation and guidance on how States 

may demonstrate that a source’s existing 

measures are not necessary to make 

reasonable progress. See 2021 

Clarifications Memo at 8–10. If the State 

can make such a demonstration, it need 

not include a source’s existing measures 

in the long-term strategy or its SIP. 

As with source selection, the 

characterization of information on each 

of the factors is also subject to the 

documentation requirement in 40 CFR 

51.308(f)(2)(iii). The reasonable progress 

analysis, including source selection, 

information gathering, characterization 

of the four statutory factors (and 

potentially visibility), balancing of the 

four factors, and selection of the 

emission reduction measures that 

represent reasonable progress, is a 

technically complex exercise, but also a 

flexible one that provides States with 

bounded discretion to design and 

implement approaches appropriate to 

their circumstances. Given this 

flexibility, 40 CFR 51.308(f)(2)(iii) plays 

an important function in requiring a 

State to document the technical basis for 

its decision making so that the public 

and the EPA can comprehend and 

evaluate the information and analysis 

the State relied upon to determine what 

emission reduction measures must be in 

place to make reasonable progress. The 

technical documentation must include 

the modeling, monitoring, cost, 

engineering, and emissions information 

on which the State relied to determine 

the measures necessary to make 

reasonable progress. This 

documentation requirement can be met 

through the provision of and reliance on 

technical analyses developed through a 

regional planning process, so long as 

that process and its output has been 

approved by all State participants. In 

addition to the explicit regulatory 

requirement to document the technical 

basis of their reasonable progress 

determinations, States are also subject to 

the general principle that those 

determinations must be reasonably 

moored to the statute.25 That is, a State’s 

decisions about the emission reduction 

measures that are necessary to make 

reasonable progress must be consistent 

with the statutory goal of remedying 

existing and preventing future visibility 

impairment. 

The four statutory factors (and 

potentially visibility) are used to 

determine what emission reduction 

measures for selected sources must be 

included in a State’s long-term strategy 

for making reasonable progress. 

Additionally, the RHR at 40 CFR 

51.308(f)(2)(iv) separately provides five 

‘‘additional factors’’ 26 that States must 

consider in developing their long-term 

strategies: (1) emission reductions due 

to ongoing air pollution control 

programs, including measures to 

address reasonably attributable visibility 

impairment; (2) measures to reduce the 

impacts of construction activities; (3) 

source retirement and replacement 

schedules; (4) basic smoke management 

practices for prescribed fire used for 

agricultural and wildland vegetation 

management purposes and smoke 

management programs; and (5) the 

anticipated net effect on visibility due to 

projected changes in point, area, and 

mobile source emissions over the period 

addressed by the long-term strategy. The 

2019 Guidance provides that a State 

may satisfy this requirement by 

considering these additional factors in 

the process of selecting sources for fourfactor analysis, when performing that 

analysis, or both, and that not every one 

of the additional factors needs to be 

considered at the same stage of the 

process. See 2019 Guidance at 21. The 

EPA provided further guidance on the 

five additional factors in the 2021 

Clarifications Memo, explaining that a 

State should generally not reject costeffective and otherwise reasonable 

controls merely because there have been 

emission reductions since the first 

planning period owing to other ongoing 

air pollution control programs or merely 

because visibility is otherwise projected 

to improve at Class I areas. 

Additionally, States generally should 

not rely on these additional factors to 


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27RPGs are intended to reflect the projected 

impacts of the measures all contributing states 

include in their long-term strategies. However, due 

to the timing of analyses and of control 

determinations by other states, other on-going 

emissions changes, a particular state’s RPGs may 

not reflect all control measures and emissions 

reductions that are expected to occur by the end of 

the implementation period. The 2019 Guidance 

provides recommendations for addressing the 

timing of RPG calculations when states are 

developing their long-term strategies on disparate 

schedules, as well as for adjusting RPGs using a 

post-modeling approach. 2019 Guidance at 47–48. 

summarily assert that the State has 

already made sufficient progress and, 

therefore, no sources need to be selected 

or no new controls are needed 

regardless of the outcome of four-factor 

analyses. 2021 Clarifications Memo at 

13. 

Because the air pollution that causes 

regional haze crosses State boundaries, 

40 CFR 51.308(f)(2)(ii) requires a State 

to consult with other States that also 

have emissions that are reasonably 

anticipated to contribute to visibility 

impairment in a given Class I area. 

Consultation allows for each State that 

impacts visibility in an area to share 

whatever technical information, 

analyses, and control determinations 

may be necessary to develop 

coordinated emission management 

strategies. This coordination may be 

managed through inter- and intra-RPO 

consultation and the development of 

regional emissions strategies; additional 

consultations between States outside of 

RPO processes may also occur. If a 

State, pursuant to consultation, agrees 

that certain measures (e.g., a certain 

emission limitation) are necessary to 

make reasonable progress at a Class I 

area, it must include those measures in 

its SIP. 40 CFR 51.308(f)(2)(ii)(A). 

Additionally, the RHR requires that 

States that contribute to visibility 

impairment at the same Class I area 

consider the emission reduction 

measures the other contributing States 

have identified as being necessary to 

make reasonable progress for their own 

sources. 40 CFR 51.308(f)(2)(ii)(B). If a 

State has been asked to consider or 

adopt certain emission reduction 

measures, but ultimately determines 

those measures are not necessary to 

make reasonable progress, that State 

must document in its SIP the actions 

taken to resolve the disagreement. 40 

CFR 51.308(f)(2)(ii)(C). The EPA will 

consider the technical information and 

explanations presented by the 

submitting State and the State with 

which it disagrees when considering 

whether to approve the State’s SIP. See 

id.; 2019 Guidance at 53. Under all 

circumstances, a State must document 

in its SIP submission all substantive 

consultations with other contributing 

States. 40 CFR 51.308(f)(2)(ii)(C). 

D. Reasonable Progress Goals 

Reasonable progress goals ‘‘measure 

the progress that is projected to be 

achieved by the control measures States 

have determined are necessary to make 

reasonable progress based on a fourfactor analysis.’’ 82 FR 3078 at 3091, 

January 10, 2017. Their primary purpose 

is to assist the public and the EPA in 

assessing the reasonableness of States’ 

long-term strategies for making 

reasonable progress towards the 

national visibility goal. See 40 CFR 

51.308(f)(3)(iii) and (iv). States in which 

Class I areas are located must establish 

two RPGs, both in deciviews—one 

representing visibility conditions on the 

clearest days and one representing 

visibility on the most anthropogenically 

impaired days—for each area within 

their borders. 40 CFR 51.308(f)(3)(i). The 

two RPGs are intended to reflect the 

projected impacts, on the two sets of 

days, of the emission reduction 

measures the State with the Class I area, 

as well as all other contributing States, 

have included in their long-term 

strategies for the second implementation 

period.27 The RPGs also account for the 

projected impacts of implementing 

other CAA requirements, including nonSIP based requirements. Because RPGs 

are the modeled result of the measures 

in States’ long-term strategies (as well as 

other measures required under the 

CAA), they cannot be determined before 

States have conducted their four-factor 

analyses and determined the control 

measures that are necessary to make 

reasonable progress. See 2021 

Clarifications Memo at 6. 

For the second implementation 

period, the RPGs are set for 2028. 

Reasonable progress goals are not 

enforceable targets, 40 CFR 

51.308(f)(3)(iii); rather, they ‘‘provide a 

way for the States to check the projected 

outcome of the [long-term strategy] 

against the goals for visibility 

improvement.’’ 2019 Guidance at 46. 

While States are not legally obligated to 

achieve the visibility conditions 

described in their RPGs, 40 CFR 

51.308(f)(3)(i) requires that ‘‘[t]he longterm strategy and the reasonable 

progress goals must provide for an 

improvement in visibility for the most 

impaired days since the baseline period 

and ensure no degradation in visibility 

for the clearest days since the baseline 

period.’’ Thus, States are required to 

have emission reduction measures in 

their long-term strategies that are 

projected to achieve visibility 

conditions on the most impaired days 

that are better than the baseline period 

and shows no degradation on the 

clearest days compared to the clearest 

days from the baseline period. The 

baseline period for the purpose of this 

comparison is the baseline visibility 

condition—the annual average visibility 

condition for the period 2000–2004. See 

40 CFR 51.308(f)(1)(i), 82 FR 3078 at 

3097–98, January 10, 2017. 

So that RPGs may also serve as a 

metric for assessing the amount of 

progress a State is making towards the 

national visibility goal, the RHR 

requires States with Class I areas to 

compare the 2028 RPG for the most 

impaired days to the corresponding 

point on the URP line (representing 

visibility conditions in 2028 if visibility 

were to improve at a linear rate from 

conditions in the baseline period of 

2000–2004 to natural visibility 

conditions in 2064). If the most 

impaired days RPG in 2028 is above the 

URP (i.e., if visibility conditions are 

improving more slowly than the rate 

described by the URP), each State that 

contributes to visibility impairment in 

the Class I area must demonstrate, based 

on the four-factor analysis required 

under 40 CFR 51.308(f)(2)(i), that no 

additional emission reduction measures 

would be reasonable to include in its 

long-term strategy. 40 CFR 

51.308(f)(3)(ii). To this end, 40 CFR 

51.308(f)(3)(ii) requires that each State 

contributing to visibility impairment in 

a Class I area that is projected to 

improve more slowly than the URP 

provide ‘‘a robust demonstration, 

including documenting the criteria used 

to determine which sources or groups 

[of] sources were evaluated and how the 

four factors required by paragraph 

(f)(2)(i) were taken into consideration in 

selecting the measures for inclusion in 

its long-term strategy.’’ The 2019 

Guidance provides suggestions about 

how such a ‘‘robust demonstration’’ 

might be conducted. See 2019 Guidance 

at 50–51. 

The 2017 RHR, 2019 Guidance, and 

2021 Clarifications Memo also explain 

that projecting an RPG that is on or 

below the URP based on only on-thebooks and/or on-the-way control 

measures (i.e., control measures already 

required or anticipated before the fourfactor analysis is conducted) is not a 

‘‘safe harbor’’ from the CAA’s and RHR’s 

requirement that all States must conduct 

a four-factor analysis to determine what 

emission reduction measures constitute 

reasonable progress. The URP is a 

planning metric used to gauge the 

amount of progress made thus far and 

the amount left before reaching natural 

visibility conditions. However, the URP 

is not based on consideration of the four 

statutory factors and therefore cannot 


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28See ‘‘Step 8: Additional requirements for 

regional haze SIPs’’ in 2019 Regional Haze 

Guidance at 55. 

29 Id. 

30EPA’s visibility protection regulations define 

‘‘reasonably attributable visibility impairment’’ as 

‘‘visibility impairment that is caused by the 

emission of air pollutants from one, or a small 

number of sources.’’ 40 CFR 51.301. 

answer the question of whether the 

amount of progress being made in any 

particular implementation period is 

‘‘reasonable progress.’’ See 82 FR 3078 

at 3093, 3099–3100, January 10, 2017; 

2019 Guidance at 22; 2021 Clarifications 

Memo at 15–16. 

E. Monitoring Strategy and Other State 

Implementation Plan Requirements 

Section 51.308(f)(6) requires States to 

have certain strategies and elements in 

place for assessing and reporting on 

visibility. Individual requirements 

under this section apply either to States 

with Class I areas within their borders, 

States with no Class I areas but that are 

reasonably anticipated to cause or 

contribute to visibility impairment in 

any Class I area, or both. A State with 

Class I areas within its borders must 

submit with its SIP revision a 

monitoring strategy for measuring, 

characterizing, and reporting regional 

haze visibility impairment that is 

representative of all Class I areas within 

the State. SIP revisions for such States 

must also provide for the establishment 

of any additional monitoring sites or 

equipment needed to assess visibility 

conditions in Class I areas, as well as 

reporting of all visibility monitoring 

data to the EPA at least annually. 

Compliance with the monitoring 

strategy requirement may be met 

through a State’s participation in the 

Interagency Monitoring of Protected 

Visual Environments (IMPROVE) 

monitoring network, which is used to 

measure visibility impairment caused 

by air pollution at the 156 Class I areas 

covered by the visibility program. 40 

CFR 51.308(f)(6), (f)(6)(i) and (iv). The 

IMPROVE monitoring data is used to 

determine the 20% most 

anthropogenically impaired and 20% 

clearest sets of days every year at each 

Class I area and tracks visibility 

impairment over time. 

All States’ SIPs must provide for 

procedures by which monitoring data 

and other information are used to 

determine the contribution of emissions 

from within the State to regional haze 

visibility impairment in affected Class I 

areas. 40 CFR 51.308(f)(6)(ii) and (iii). 

Section 51.308(f)(6)(v) further requires 

that all States’ SIPs provide for a 

statewide inventory of emissions of 

pollutants that are reasonably 

anticipated to cause or contribute to 

visibility impairment in any Class I area; 

the inventory must include emissions 

for the most recent year for which data 

are available and estimates of future 

projected emissions. States must also 

include commitments to update their 

inventories periodically. The 

inventories themselves do not need to 

be included as elements in the SIP and 

are not subject to EPA review as part of 

the Agency’s evaluation of a SIP 

revision.28 All States’ SIPs must also 

provide for any other elements, 

including reporting, recordkeeping, and 

other measures, that are necessary for 

States to assess and report on visibility. 

40 CFR 51.308(f)(6)(vi). Per the 2019 

Guidance, a State may note in its 

regional haze SIP that its compliance 

with the Air Emissions Reporting Rule 

(AERR) in 40 CFR part 51, subpart A 

satisfies the requirement to provide for 

an emissions inventory for the most 

recent year for which data are available. 

To satisfy the requirement to provide 

estimates of future projected emissions, 

a State may explain in its SIP how 

projected emissions were developed for 

use in establishing RPGs for its own and 

nearby Class I areas.29

Separate from the requirements 

related to monitoring for regional haze 

purposes under 40 CFR 51.308(f)(6), the 

RHR also contains a requirement at 40 

CFR 51.308(f)(4) related to any 

additional monitoring that may be 

needed to address visibility impairment 

in Class I areas from a single source or 

a small group of sources. This is called 

‘‘reasonably attributable visibility 

impairment.’’ 30 Under this provision, if 

the EPA or the FLM of an affected Class 

I area has advised a State that additional 

monitoring is needed to assess 

reasonably attributable visibility 

impairment, the State must include in 

its SIP revision for the second 

implementation period an appropriate 

strategy for evaluating such impairment. 

F. Requirements for Periodic Reports 

Describing Progress Towards the 

Reasonable Progress Goals 

Section 51.308(f)(5) requires a State’s 

regional haze SIP revision to address the 

requirements of 40 CFR 51.308(g)(1) 

through (5) so that the plan revision due 

in 2021 will serve also as a progress 

report addressing the period since 

submission of the progress report for the 

first implementation period. The 

regional haze progress report 

requirement is designed to inform the 

public and the EPA about a State’s 

implementation of its existing long-term 

strategy and whether such 

implementation is in fact resulting in 

the expected visibility improvement. 

See 81 FR 26942, 26950 (May 4, 2016), 

(82 FR 3078 at 3119, January 10, 2017). 

To this end, every State’s SIP revision 

for the second implementation period is 

required to describe the status of 

implementation of all measures 

included in the State’s long-term 

strategy, including BART and 

reasonable progress emission reduction 

measures from the first implementation 

period, and the resulting emissions 

reductions. 40 CFR 51.308(g)(1) and (2). 

A core component of the progress 

report requirements is an assessment of 

changes in visibility conditions on the 

clearest and most impaired days. For 

second implementation period progress 

reports, 40 CFR 51.308(g)(3) requires 

States with Class I areas within their 

borders to first determine current 

visibility conditions for each area on the 

most impaired and clearest days, 40 

CFR 51.308(g)(3)(i)(B), and then to 

calculate the difference between those 

current conditions and baseline (2000– 

2004) visibility conditions in order to 

assess progress made to date. See 40 

CFR 51.308(g)(3)(ii)(B). States must also 

assess the changes in visibility 

impairment for the most impaired and 

clearest days since they submitted their 

first implementation period progress 

reports. See 40 CFR 51.308(g)(3)(iii)(B) 

and (f)(5). Since different States 

submitted their first implementation 

period progress reports at different 

times, the starting point for this 

assessment will vary state by state. 

Similarly, States must provide 

analyses tracking the change in 

emissions of pollutants contributing to 

visibility impairment from all sources 

and activities within the State over the 

period since they submitted their first 

implementation period progress reports. 

See 40 CFR 51.308(f)(5) and (g)(4). 

Changes in emissions should be 

identified by the type of source or 

activity. Section 51.308(g)(5) also 

addresses changes in emissions since 

the period addressed by the previous 

progress report and requires States’ SIP 

revisions to include an assessment of 

any significant changes in 

anthropogenic emissions within or 

outside the State. This assessment must 

include an explanation of whether these 

changes in emissions were anticipated 

and whether they have limited or 

impeded progress in reducing emissions 

and improving visibility relative to what 

the State projected based on its longterm strategy for the first 

implementation period. 

G. Requirements for State and Federal 

Land Manager Coordination 

Clean Air Act section 169A(d) 

requires that before a State holds a 


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31The EPA determined that ‘‘there is more than 

sufficient evidence to support our conclusion that 

emissions from each of the 48 contiguous states and 

the District of Columba may reasonably be 

anticipated to cause or contribute to visibility 

impairment in a Class I Area.’’ 64 FR 35721, July 

1, 1999 . Hawaii, Alaska, and the U.S. Virgin 

Islands must also submit Regional Haze SIPs 

because they contain Class I Areas. 

public hearing on a proposed regional 

haze SIP revision, it must consult with 

the appropriate FLM or FLMs; pursuant 

to that consultation, the State must 

include a summary of the FLMs’ 

conclusions and recommendations in 

the notice to the public. Consistent with 

this statutory requirement, the RHR also 

requires that States ‘‘provide the [FLM] 

with an opportunity for consultation, in 

person and at a point early enough in 

the State’s policy analyses of its longterm strategy emission reduction 

obligation so that information and 

recommendations provided by the 

[FLM] can meaningfully inform the 

State’s decisions on the long-term 

strategy.’’ 40 CFR 51.308(i)(2). 

Consultation that occurs 120 days prior 

to any public hearing or public 

comment opportunity will be deemed 

‘‘early enough,’’ but the RHR provides 

that in any event the opportunity for 

consultation must be provided at least 

60 days before a public hearing or 

comment opportunity. This consultation 

must include the opportunity for the 

FLMs to discuss their assessment of 

visibility impairment in any Class I area 

and their recommendations on the 

development and implementation of 

strategies to address such impairment. 

40 CFR 51.308(i)(2). In order for the EPA 

to evaluate whether FLM consultation 

meeting the requirements of the RHR 

has occurred, the SIP submission should 

include documentation of the timing 

and content of such consultation. The 

SIP revision submitted to the EPA must 

also describe how the State addressed 

any comments provided by the FLMs. 

40 CFR 51.308(i)(3). Finally, a SIP 

revision must provide procedures for 

continuing consultation between the 

State and FLMs regarding the State’s 

visibility protection program, including 

development and review of SIP 

revisions, five-year progress reports, and 

the implementation of other programs 

having the potential to contribute to 

impairment of visibility in Class I areas. 

40 CFR 51.308(i)(4). 

IV. EPA’s Evaluation of West Virginia’s 

Regional Haze Submission for the 

Second Implementation Period 

A. Background on West Virginia’s First 

Implementation Period SIP Submission 

West Virginia submitted its Regional 

Haze SIP for the first implementation 

period to the EPA on June 18, 2008. The 

EPA issued a limited approval and 

limited disapproval of West Virginia’s 

first implementation period Regional 

Haze SIP submission on March 23, 2012 

(77 FR 16937) because, while West 

Virginia’s SIP revision, as a whole, 

strengthened the West Virginia SIP, 

deficiencies in the State’s June 2008 

regional haze SIP submittal arising from 

the remand by the U.S. Court of Appeals 

for the District of Columbia (D.C. 

Circuit) to the EPA of the Clean Air 

Interstate Rule (CAIR) necessitated a 

limited disapproval of these aspects of 

the State’s SIP submittal. The EPA 

subsequently converted this limited 

approval/limited disapproval of West 

Virginia’s regional haze SIP to a full 

approval on September 24, 2018, (83 FR 

48249) after West Virginia submitted a 

revision to its Regional Haze SIP to 

change its reliance from CAIR to the 

Cross-State Air Pollution Rule (CSAPR) 

for the purpose of meeting BART for 

regional haze and addressing reasonable 

progress requirements. The 

requirements for Regional Haze SIPs for 

the first implementation period are 

contained in 40 CFR 51.308(d) and (e). 

Pursuant to 40 CFR 51.308(g), West 

Virginia was also responsible for 

submitting a five-year progress report as 

a SIP revision for the first 

implementation period, which it did on 

April 30, 2013. The EPA approved the 

progress report into West Virginia’s SIP 

on June 5, 2015 (80 FR 32019). 

B. West Virginia’s Second 

Implementation Period SIP Submission 

and the EPA’s Evaluation 

In accordance with CAA sections 

169A and the RHR at 40 CFR 51.308(f), 

(g), and (i), on August 12, 2022, WV DEP 

submitted a revision to West Virginia’s 

SIP to address its Regional Haze 

obligations for the second 

implementation period, which runs 

through 2028. West Virginia made its 

2022 Regional Haze SIP submission 

available for public comment on 

November 5, 2021. West Virginia 

received and responded to public 

comments and included both the 

comments and responses to those 

comments in its submission. 

The following sections describe West 

Virginia’s SIP submission. This 

document also contains the EPA’s 

evaluation of West Virginia’s 

submission against the applicable 

requirements of the CAA and RHR for 

the second implementation period of 

the Regional Haze program. 

C. Identification of Class I Areas 

Section 169A(b)(2) of the CAA 

requires each State in which any Class 

I Area is located or ‘‘the emissions from 

which may reasonably be anticipated to 

cause or contribute to any impairment 

of visibility’’ in a Class I Area to have 

a plan for making reasonable progress 

toward the national visibility goal. The 

RHR implements this statutory 

requirement at 40 CFR 51.308(f), which 

provides that each State’s plan ‘‘must 

address Regional Haze in each 

mandatory Class I Federal Area located 

within the State and in each mandatory 

Class I Federal Area located outside the 

State that may be affected by emissions 

from within the State,’’ and (f)(2), which 

requires each State’s plan to include a 

long-term strategy that addresses 

Regional Haze in such Class I Areas. 

The EPA explained in the 1999 RHR 

preamble that the CAA section 

169A(b)(2) requirement that States 

submit SIPs to address visibility 

impairment establishes ‘‘an ‘extremely 

low triggering threshold’ in determining 

which States should submit SIPs for 

regional haze.’’ 64 FR 35721, July 1, 

1999. In concluding that each of the 

contiguous 48 States and the District of 

Columbia meet this threshold,31 the 

EPA relied on ‘‘a large body of evidence 

demonstrat[ing] that long-range 

transport of fine PM contributes to 

regional haze,’’ id., including modeling 

studies that ‘‘preliminarily 

demonstrated that each State not having 

a Class I Area had emissions 

contributing to impairment in at least 

one downwind Class I Area.’’ Id. at 

35722. In addition to the technical 

evidence supporting a conclusion that 

each State contributes to existing 

visibility impairment, the EPA also 

explained that the second half of the 

national visibility goal—preventing 

future visibility impairment—requires 

having a framework in place to address 

future growth in visibility-impairing 

emissions and makes it inappropriate to 

‘‘establish criteria for excluding States 

or geographic areas from consideration 

as potential contributors to regional 

haze visibility impairment.’’ Id. at 

35721. Thus, the EPA concluded that 

the agency’s ‘‘statutory authority and 

the scientific evidence are sufficient to 

require all States to develop regional 

haze SIPs to ensure the prevention of 

any future impairment of visibility, and 

to conduct further analyses to determine 

whether additional control measures are 

needed to ensure reasonable progress in 

remedying existing impairment in 

downwind Class I Areas.’’ Id. at 35722. 

The EPA’s 2017 revisions to the RHR 

did not disturb this conclusion. See 82 

FR 3094. 

To address 40 CFR 51.308(f), WV DEP 

identified Class I areas within West 


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32PSAT is Particulate Matter Source 

Apportionment Technology, which is an option in 

the photochemical visibility impact modeling 

performed by VISTAS that is a methodology to 

track the fate of both primary and secondary PM. 

PSAT allows emissions to be tracked (‘‘tagged’’) for 

individual facilities as well as various combinations 

of sectors and geographic areas (e.g., by state). The 

PSAT results provide the modeled contribution of 

each of the tagged sources or groups of sources to 

the total visibility impacts. 

33West Virginia did not include primary PM 

(directly emitted) data in this analysis because the 

PSAT analyses performed by VISTAS tagged 

statewide emissions of SO2 and NOX and did not 

tag primary total PM emissions in the analysis after 

concluding that emissions of the PM precursors SO2

and NOX, particularly from point sources, are 

projected to have the largest impact on visibility 

impairment in 2028 and that SO2 and NOX are the 

most significant visibility impairing pollutants from 

controllable anthropogenic sources. 

34States often use an AOI analysis to help 

identify the areas and sources most likely 

contributing to poor visibility in Class I areas. The 

AOI analysis involves running a backward 

trajectory model to determine the origin of the air 

parcels affecting visibility, which is then combined 

with emissions data to determine the sources or 

source sectors most likely contributing to pollutant 

emissions. For more information on AOI analyses, 

see Appendix D of WV DEP’s Regional Haze SIP 

Submittal for the 2nd Planning Period. 

35See Section 7.5, ‘‘Area of Influence Analyses 

for West Virginia Class I Areas’’ of WV DEP’s 

Regional Haze SIP Submittal for the 2nd Planning 

Period. 

36See Section 7.2.3, ‘‘Projected VISTAS 2028 

Emissions Inventory’’, Section 7.2.5, ‘‘2028 

Visibility Projection Results’’, and Section 7.4, 

‘‘Relative Contributions to Visibility Impairment: 

Pollutants, Source Categories, and Geographic 

Areas’’ of WV DEP’s Regional Haze SIP Submittal 

for the 2nd Planning Period. 

37See Section 7.4, ‘‘Relative Contributions to 

Visibility Impairment: Pollutants, Source 

Categories, and Geographic Areas’’ of WV DEP’s 

Regional Haze SIP Submittal for the 2nd Planning 

Period. 

38Otter Creek has no IMPROVE monitor. 

Visibility at Otter Creek is assumed to be the same 

as the nearest Class I area monitor located at Dolly 

Sods. 

39www.epa.gov/sites/default/files/2018-12/ 

documents/technical_guidance_tracking_visibility_

progress.pdf and https://www.epa.gov/sites/default/ 

files/2020-06/documents/memo_data_for_regional_

haze_technical_addendum.pdf. 

Virginia and out-of-state Class I areas 

downwind of West Virginia that were 

affected by West Virginia statewide 

emissions of visibility impairing 

pollutants. West Virginia has two 

mandatory Class I areas within its 

borders: Dolly Sods Wilderness Area 

(Dolly Sods) and Otter Creek Wilderness 

Area (Otter Creek). Out-of-state Class I 

Areas affected by West Virginia 

included Acadia National Park (Maine), 

James River Face Wilderness Area 

(Virginia), Lye Brook Wilderness Area 

(Vermont), Moosehorn Wilderness Area 

(Maine), Roosevelt Campobello 

International Park (Maine/New 

Brunswick), Shenandoah National Park 

(Virginia), and Swanquarter Wilderness 

Area (North Carolina). 

West Virginia, like other VISTAS 

States, implemented a two-step process 

to select sources contributing to 

visibility impairment in Class I areas 

within and outside the State. West 

Virginia presented the results of 

Particulate Matter Source 

Apportionment Technology (PSAT) 32

modeling that VISTAS conducted to 

estimate the projected impact of 

statewide SO2 and NOX emissions 

across all emissions sectors in 2028 on 

total light extinction for the 20 percent 

most impaired days in all Class I areas 

in the VISTAS modeling domain.33

PSAT results were used to calculate the 

percent contribution of each tagged 

facility to the total sulfate and nitrate 

point source (EGU + non-EGU) 

contribution at each Class I area; more 

details of the PSAT analysis can be 

found in Appendix E–7b of WV DEP’s 

SIP submittal. West Virginia also relied 

on facility-level SO2 and NOX Area of 

Influence (AOI) analyses 34 for each 

Class I area to assess relative visibility 

impacts from each facility.35

WV DEP concluded that sources and 

emissions within the State contribute to 

visibility impairment at seven out-ofstate Class I Areas and took part in the 

emission control strategy consultation 

process as a member of VISTAS. WV 

DEP also included analyses of visibility 

impairing pollutant emissions and 

visibility impacts from other RPOs and 

States, and their impact on Class I Areas 

within VISTAS.36 From these analyses, 

WV DEP concluded that ‘‘sulfate will 

generally be a much larger contributor 

to visibility impairment in 2028 at 

VISTAS mandatory Federal Class I areas 

than nitrates’’ and, that ‘‘emissions from 

other planning organizations . . . 

generally have higher contributions to 

2028 visibility impairment at mandatory 

Federal Class I areas in VISTAS than the 

emissions from the home State.’’ 37 As 

stated previously, the threshold for 

visibility impact on Class I Areas is low. 

Therefore, a supposedly small visibility 

impact on any of the Class I Areas 

identified by WV DEP as being impacted 

by its emissions is sufficient to trigger 

the regional haze requirements to 

evaluate sources for control measures 

considering the four factors. 

D. Calculations of Baseline, Current, 

and Natural Visibility Conditions; 

Progress to Date; and the Uniform Rate 

of Progress 

Section 51.308(f)(1) requires states to 

determine the following for ‘‘each 

mandatory Class I Federal Area located 

within the State’’: baseline visibility 

conditions for the most impaired and 

clearest days, natural visibility 

conditions for the most impaired and 

clearest days, progress to date for the 

most impaired and clearest days, the 

differences between current visibility 

conditions and natural visibility 

conditions, and the URP. This section 

also provides the option for States to 

propose adjustments to the URP line for 

a Class I Area to account for visibility 

impacts from anthropogenic sources 

outside the United States and/or the 

impacts from wildland prescribed fires 

that were conducted for certain, 

specified objectives. 40 CFR 

51.308(f)(1)(vi)(B). WV DEP included 

this information in sections 2, 3, and 7 

of its Regional Haze SIP submittal for 

the second planning period. 

In its submittal, WV DEP determines 

and presents the baseline, natural, and 

current visibility conditions as well as 

the differences between these for the 20 

percent most anthropogenically 

impaired days and the 20 percent 

clearest days for the State’s two Class I 

Areas, as required by the RHR. 

Specifically, WV DEP included the 

baseline visibility conditions (2000– 

2004) in table 2–3, current visibility 

conditions (2014–2018) in table 2–5, 

and natural visibility conditions in table 

2–2 for the 20 percent clearest and 20 

percent most impaired days in each 

VISTAS Class I area in deciviews, 

including those in West Virginia. WV 

DEP also included the actual progress 

made in deciviews toward natural 

visibility conditions to date since the 

baseline period (current minus 

baseline), and the additional progress 

needed to reach natural visibility 

conditions from current conditions 

(natural minus current) in table 2–6 (for 

the 20 percent most impaired days) and 

table 2–7 (for the 20 percent clearest 

days) for VISTAS Class I areas, 

including those in West Virginia. 

Additionally, Figure 3–1 of WV DEP’s 

submittal provides the URP glide path 

for the 20 percent most impaired days 

for Dolly Sods. The URP shown in 

Figure 3–1 for Dolly Sods is considered 

representative of Otter Creek.38 The 

URPs were developed by the State using 

EPA guidance 39 and used data collected 

from the IMPROVE monitoring sites. 

However, as set forth later in this 

NPRM, because the EPA is proposing to 

disapprove West Virginia’s Regional 

Haze plan for the second planning 

period due to deficiencies in the overall 

submittal, the EPA takes no position on 

whether the analysis described in 

section D meets the requirements of the 

Clean Air Act. 


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40Allegheny Energy Supply Co, LLC—Harrison; 

American Bituminous Power—Grant Town Plant; 

Appalachian Power Company—John E. Amos Plant; 

Dominion Resources, Inc.—Mount Storm Power 

Station; Equitrans—Copley Run CS 70; Files Creek; 

Glady; Kingsford Manufacturing Company; 

Longview Power; Mitchell Plant; Monongahela 

Power Co.—Fort Martin Power; Monongahela 

Power Co.—Pleasants Power Station; Morgantown 

Energy Associates. 

41See section 7.6.4, ‘‘Selection of Sources for 

Reasonable Progress Evaluation’’ of WV DEP’s 

Regional Haze SIP submittal for the 2nd Planning 

Period (‘‘section 7.6.4’’ or ‘‘section 7.6.4 of the SIP 

submittal’’). 

42 Id. 

43West Virginia refers to this facility as ‘‘Grant 

Town Plant’’ as well as ‘‘Grant Town Power Plant’’ 

in the SIP submittal. 

44 Id. at 182 of 257. 

45 Id. at 187 of 257. West Virginia’s SIP submittal 

provided scant explanation for Mountaineer’s 

inclusion in this group of facilities. West Virginia 

might have included Mountaineer because the 

EPA’s January 5, 2022 comments submitted during 

the public comment period asked for ‘‘further 

explanation of why the 4th largest SO2 source in the 

state was not selected for a 4-factor analysis . . . .’’ 

Appendix H–4 ‘‘West Virginia Department of 

Environmental Protection Division of Air Quality 

Responses to EPA Region 3 Comments on the West 

Virginia Draft Regional Haze State Implementation 

Plan August 2022,’’ section. 6.e. 

46See section 7.8, ‘‘Reasonable Progress for 

Individual Sources to be Included in the Long-Term 

Strategy’’, of WV DEP’s Regional Haze SIP submittal 

for the 2nd Planning Period (‘‘section 7.8’’ or 

‘‘section 7.8 of the SIP submittal’’). 

47 Id. and section 7.6.4 of the SIP submittal. 

48Section 7.8 of the SIP submittal at 197 of 257. 

49West Virginia does not clearly explain why it 

included Grant Town Plant in the section 7.8 

reasonable progress discussion after it already 

claimed that Grant Town Plant should be excluded 

from four-factor analysis and reasonable progress 

analysis in the section 7.6.4 source selection 

discussion whittling down the larger group of 

thirteen facilities tagged for PSAT modeling. 

50Allegheny Energy Supply Co, LLC—Harrison; 

Monongahela Power Co—Pleasants Power Station; 

Kentucky Power Company—Mitchell Plant; 

Appalachian Power Company—John E. Amos Plant; 

Monongahela Power Co—Fort Martin Power; and 

American Bituminous Power—Grant Town Plant. 

E. Long-Term Strategy for Regional Haze 

Each State having a Class I Area 

within its borders or emissions that may 

affect visibility in a Class I Area must 

develop a long-term strategy for making 

reasonable progress towards the 

national visibility goal. CAA section 

169A(b)(2)(B). As explained in the 

Background section of this document, 

reasonable progress is achieved when 

all States contributing to visibility 

impairment in a Class I Area are 

implementing the measures 

determined—through application of the 

four statutory factors to sources of 

visibility impairing pollutants—to be 

necessary to make reasonable progress. 

40 CFR 51.308(f)(2)(i). Each State’s longterm strategy must include the 

enforceable emission limitations, 

compliance schedules, and other 

measures that are necessary to make 

reasonable progress. 40 CFR 

51.308(f)(2). All new (i.e., additional) 

measures that are the outcome of fourfactor analyses are necessary to make 

reasonable progress and must be in the 

long-term strategy. If the outcome of a 

four-factor analysis and other measures 

necessary to make reasonable progress is 

that no new measures are reasonable for 

a source, that source’s existing measures 

are necessary to make reasonable 

progress, unless the State can 

demonstrate that the source will 

continue to implement those measures 

and will not increase its emission rate. 

Existing measures that are necessary to 

make reasonable progress must also be 

in the long-term strategy. In developing 

its long-term strategy, a State must also 

consider the five additional factors in 40 

CFR 51.308(f)(2)(iv). As part of its 

reasonable progress determinations, the 

State must describe the criteria used to 

determine which sources or group of 

sources were evaluated (i.e., subjected 

to four-factor analysis) for the second 

implementation period and how the 

four factors were taken into 

consideration in selecting the emission 

reduction measures for inclusion in the 

long-term strategy. 40 CFR 

51.308(f)(2)(iii). 

1. Source Selection 

To determine the necessary emission 

reductions measures, a State must first 

select the sources to evaluate. As stated 

in the Background section of this 

document, source selection should 

focus on the in-state contribution to 

visibility impairment and be designed to 

capture a meaningful portion of the 

State’s total contribution to visibility 

impairment in Class I areas. WV DEP 

included information on the emissions 

impacts from numerous sources within 

the State on various Class I Areas. 

Section 7.6.1, Table 7–17 of the WV DEP 

submittal lists the facilities selected for 

PSAT tagging in Virginia and West 

Virginia based on an AOI visibility 

contribution of 0.2% or more which 

include thirteen facilities located in 

West Virginia.40 West Virginia then 

decided not to select eight of those 

facilities for analysis of reasonable 

progress measures or controls.41 The 

State considered a percent contribution 

of greater than or equal to 1.00% 

(individual facility contribution divided 

by the total sulfate and nitrate 

contributions from EGU + non-EGU 

point sources) to determine whether to 

select a facility for a reasonable progress 

analysis. West Virginia excluded seven 

of the eight unselected facilities in part 

based on a PSAT modeling result of 

<1.00% as well as various factors 

through a qualitative weight-of-the 

evidence approach.42 The remaining of 

the unselected facilities, Grant Town 

Plant,43 had a PSAT modeling result of 

≥1.00% which WV DEP claimed could 

be scaled down to <1.00% contribution 

to Dolly Sods based on recent emissions 

data.44 WV DEP also included 

discussion as to why no reasonable 

progress analysis is warranted for 

Mountaineer Plant, a ninth facility that 

was not tagged for PSAT modeling.45

After excluding eight of the thirteen 

facilities selected for PSAT tagging— 

along with Mountaineer Plant, which 

had not been selected for PSAT—West 

Virginia then selected the remaining 

five facilities: Harrison Power Station; 

Fort Martin Power Station; Pleasants 

Power Station; Mitchell Plant; and the 

John E. Amos Plant, to perform a fourfactor analysis.46 WV DEP also included 

in its reasonable progress discussion at 

section 7.8 of the SIP submittal a sixth 

facility—Grant Town Plant—which was 

initially included among the eight 

facilities for which WV DEP explained 

that no reasonable progress analysis was 

warranted.47 Although the State then 

selected Grant Town Plant for a 

reasonable progress evaluation, it did 

not contact the facility to request such 

analysis giving as the reason, ‘‘the 

facility is already subject to a federally 

enforceable Title V permit (R30– 

04900026–2020) that limits SO2

emissions to less than the quantity 

projected to exceed the 1.00% visibility 

threshold of the VISTAS PSAT 

modeling.’’ 48 Below in this document, 

when discussing reasonable progress 

and the facilities included in section 7.8 

of the SIP submittal, the EPA refers to 

the group selected for reasonable 

progress analysis as ‘‘five facilities plus 

Grant Town Plant’’ or ‘‘six facilities’’ for 

ease of reference, even though it is 

somewhat unclear whether WV DEP’s 

discussion of Grant Town Plant in 

section 7.8 of the SIP submittal is meant 

to be a reasonable progress analysis.49

Section 7.6.2, Table 7–19 of the SIP 

submittal contains PSAT results for the 

Dolly Sods Area, which includes fifteen 

facilities where sulfate contributions are 

≥1.00% and addresses nearly 36.5% of 

the entire sulfate plus nitrate point 

source visibility impact in 2028; six of 

these fifteen facilities are located in 

West Virginia.50 Table 7–20 contains 

PSAT results for the Otter Creek 

Wilderness Area, which includes 

fourteen facilities where sulfate 

contributions are ≥1.00% and addresses 

more than 34.7% of the entire sulfate 

plus nitrate point source visibility 

impact in 2028; five of these fourteen 


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51Allegheny Energy Supply Co, LLC—Harrison; 

Monongahela Power Co—Pleasants Power Station; 

Kentucky Power Company—Mitchell Plant; 

Appalachian Power Company—John E. Amos Plant; 

and Monongahela Power Co—Fort Martin Power. 

52Allegheny Energy Supply Co, LLC—Harrison; 

Monongahela Power Co—Pleasants Power Station; 

Kentucky Power Company—Mitchell Plant; 

Appalachian Power Company—John E. Amos Plant; 

and Monongahela Power Co—Fort Martin Power. 

53WV DEP sometimes refers to this facility as 

Monongahela Power Company—Harrison Power 

Station, with a Facility ID of 54033–6271711. This 

is the same Facility ID used for Allegheny Energy 

Supply Co LLC—Harrison. 

54See Section 7.6.2, ‘‘PSAT Contributions at West 

Virginia Class I Areas’’ and Section 7.6.3, ‘‘AoI 

versus PSAT Contributions’’ of WV DEP’s Regional 

Haze SIP submittal for the 2nd Planning Period. 

55 In its submittal, and as described in IV.E.2. of 

this document, West Virginia eventually ruled out 

additional and existing emission reduction 

measures as being necessary for reasonable progress 

for five of these sources, without conducting a full 

analysis of the four statutory factors of CAA 

169A(g)(1) and 40 CFR 51.308(f)(2). However, for 

the sixth facility, Pleasants Power, which 

conducted a documented four-factor analysis, West 

Virginia did not reasonably justify its reliance on 

the four factors to rule out additional and existing 

emissions reductions measures that could be 

necessary for reasonable progress. See sections 7.6.4 

and 7.8 of the SIP submittal. 

56 2019 Guidance at 10. 

57 Id. (‘‘Factors could include but are not limited 

to baseline source emissions, baseline source 

visibility impacts (or a surrogate metric for the 

impacts), the in-place emission control measures 

and by implication the emission reductions that are 

possible to achieve at the source through additional 

measures, the four statutory factors (to the extent 

they have been characterized at this point in SIP 

development), potential visibility benefits (also to 

the extent they have been characterized at this point 

in SIP development), and the five additional 

required factors listed in 40 CFR 51.308(f)(2)(iv).’’) 

58Section 7.8 of the SIP submittal at 196 of 257. 

59 Id. at 197–99, 201–02 of 257. 

60Appendix G–2 to the WV DEP’s Regional Haze 

SIP Submittal for the 2nd Planning Period at G–2d 

‘‘Response Letter from Energy Harbor (Pleasants 

Station).’’ 

61Section 7.8 of the SIP submittal at 197–98 of 

257. 

62See Section 7.6.4 of the SIP submittal at 182 of 

257. 

63Section 7.8, Table 7–37 ‘‘Estimated FGD 

replacement costs per facility, based on a 20-year 

remaining life expectancy,’’ and Table 7–38, 

‘‘Estimated FGD replacement costs per unit’’, SIP 

submittal at 203–05 of 257. 

facilities are located in West Virginia.51

The West Virginia facilities listed in 

tables 7–19 and 7–20 are the same as the 

five facilities plus Grant Town Plant in 

section 7.8 of the SIP submittal. 

Tables 7–21 through 7–27 contain the 

PSAT results for the five West Virginia 

facilities 52 that WV DEP selected for 

evaluation of emissions control 

measures based on sulfate contributions 

of ≥1.00% to the following out-of-state 

Class I Areas: Acadia National Park 

(Maine), James River Face Wilderness 

Area (Virginia), Lye Brook Wilderness 

Area (Vermont), Moosehorn Wilderness 

Area (Maine), Roosevelt Campobello 

International Park (Maine/New 

Brunswick), Shenandoah National Park 

(Virginia), and Swanquarter Wilderness 

Area (North Carolina), respectively. 

Further, WV DEP States that (1) the 

Allegheny Energy Supply Co LLC— 

Harrison facility 53 affects eight Class I 

areas; (2) Monongahela Power Co.— 

Pleasants Power Station impacts six 

Class I areas; (3) Mitchell Plant impacts 

four Class I areas; (4) Monongahela 

Power Co.—Fort Martin Power impacts 

three Class I areas; (5) Appalachian 

Power Company—John E. Amos Plant 

impacts three Class I areas; and (6) 

American Bituminous Power—Grant 

Town Plant impacts one Class I area. 

The full list of tagged facilities and their 

contributions to each Class I area can be 

found in Appendix E–7b of the SIP 

submittal. Thus, WV DEP ultimately 

identifies six West Virginia facilities as 

contributing to visibility impairment in 

at least one Class I Area, and five of 

these facilities as contributing to 

visibility impairment in multiple Class 

I Areas.54 55

While the RHR does not explicitly list 

factors that a State must or may not 

consider when selecting the sources for 

which it will determine what control 

measures are necessary to make 

reasonable progress, a State opting to 

select a set of its sources to analyze 

must reasonably choose factors and 

apply them in a reasonable way given 

the statutory requirement to make 

reasonable progress towards natural 

visibility.56 The 2019 Guidance 

provides examples of criteria a State 

may consider to select sources for 

analysis of emission control measures 57

none of which align with the types of 

information that West Virginia provided 

as justification. Given that WV DEP 

already performed quantitative PSAT 

and AOI modeling for these sources, 

confirming their contribution to 

visibility impairment at multiple instate and out-of-state Class I areas, it is 

not clear based on the record presented 

why it is appropriate for WV DEP to rely 

on a qualitative weight-of-evidence 

reasoning, such as general claims about 

topography and stack height, to exclude 

these impacting sources from analysis 

under the four factors, which is what 

WV DEP did for eight of the thirteen 

facilities tagged for PSAT analysis. 

2. Four-Factor Analysis and Reasonable 

Progress Analysis 

For five of the six facilities discussed 

in section 7.8 of the SIP submittal, WV 

DEP requested that each of the facilities 

perform four-factor analyses to evaluate 

measures necessary for reasonable 

progress.58 Four of these five facilities 

declined to provide four-factor analyses 

and instead claimed that such analyses 

were unnecessary for various reasons.59

It is unclear whether WV DEP relied on 

the justifications provided by these four 

facilities, though WV DEP never 

performed its own full four-factor 

analysis for any of those four facilities. 

Only one of the five facilities—Pleasants 

Power Station—provided to WV DEP an 

engineering consultant’s report titled 

‘‘Regional Haze Four-Factor SO2

Analysis.’’ 60 WV DEP included the 

facilities’ explanations in the SIP 

submittal at section 7.8, and related 

appendices. The sixth facility discussed 

in section 7.8 is Grant Town Plant 61

even though WV DEP did not request 

from the facility a reasonable progress or 

four-factor analysis for Grant Town 

Plant because WV DEP did not believe 

such an analysis was warranted.62 WV 

DEP then included tables of its own cost 

estimates 63 for scrubber replacement at 

six facilities—the five facilities plus 

Grant Town Plant—which this 

document discusses at section IV.E.2.c. 

of this document. However, as we 

discuss in section IV.E.2.c. of this 

document, these cost estimates were 

deficient and insufficiently 

documented. 

a. Harrison Power Station, Grant Town 

Power Plant, Fort Martin Power Station, 

Mitchell Power Plant, and John E. Amos 

Power Plant 

In Section 7.8, WV DEP lists a variety 

of reasons four of the selected facilities 

(Harrison Power Station, Fort Martin 

Power Station, Mitchell Power Plant, 

and John E. Amos Power Plant) 

provided for not performing a fourfactor analysis. In the SIP submittal, WV 

DEP does not explicitly state that it is 

adopting the four facilities’ reasons as 

its own, but WV DEP reiterates the 

facilities’ reasons in detail and does not 

disavow their explanations. To the 

extent that WV DEP relied on this 

information in developing its long-term 

strategy, it did not analyze or evaluate 

the information provided by the 

facilities and did not adequately explain 

how such information was or was not 

being used to support WV DEP’s 

decision not to require a full four-factor 

analysis of these facilities. Although it 

is unclear whether WV DEP is relying 

on the four facilities’ rationales, the EPA 

addresses them in this NPRM. WV DEP 

also provided its own reasons why 

Grant Town Plant, which it did not 

request to perform a four-factor analysis 

but included in the reasonable progress 

discussion, should not be required to 

impose any additional measures. 


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64Section 7.8 of the SIP submittal at 197 of 257. 

65 mmBtu, also sometimes written as MMBTU or 

MMBtu, refers to one million British thermal units 

of heat input. 

66Section 7.8 of the SIP submittal at 197–98 of 

257. 

67West Virginia states that the remaining lifespan 

of Grant Town Plant lasts until 2035 at page 206 

of the SIP submittal and 2036 at page 198 of the 

SIP submittal. 

68Table 7–38 of the SIP submittal at 205 of 257. 

69Section 7.8 of the SIP submittal at 197. 

70 Id. at 198–99 of 257. 

71Table 7–38, SIP submittal at 205 of 257, and 

‘‘Cost Estimates for Scrubber Replacement at 

Facilities Selected for Four Factor Analyses’’ at 206 

of 257. 

72Section 7.8 of the SIP submittal at 201 of 257. 

73Section 7.8 of the SIP submittal at 201–02 of 

257. 

74Section 7.8 of the SIP submittal at 196–202 of 

257. It is unclear if West Virginia is adopting the 

rationales of these facilities to justify not requiring 

these facilities to conduct the four-factor analysis 

West Virginia requested, or whether West Virginia’s 

justification for not requiring a four-factor analysis 

is based solely on what it describes as West 

Virginia’s own ‘‘cost analyses for replacing the 

BART SO2 controls at the six selected facilities with 

limestone forced oxidation (LFSO) scrubbers, 

assuming a 98% average reduction for the 

hypothetical new scrubbers.’’ SIP Submittal at 202 

Continued 

For Harrison Power Station, WV DEP 

stated in its SIP submittal 64 that, when 

asked for a reasonable progress analysis, 

facility owner/operator Monongahela 

Power Company (MonPower) ‘‘stated 

neither a formal SO2 controls four-factor 

analysis nor an SO2 permit limit were 

necessary or appropriate for Harrison for 

regional haze purposes for multiple 

reasons.’’ These reasons included claims 

by MonPower that ‘‘visibility impacts 

from the facility are presently well 

below the URP glide paths, proving 

already implemented past measures 

have been and continue to be 

successful’’; that ‘‘Harrison FGD systems 

demonstrated a 97.1% average removal 

efficiency for 2017 through 2019, which 

exceeds the 95% control deemed as 

BART by EPA’’; and that ‘‘Harrison 

averaged 0.16 pounds per mmBtu SO2

emissions from 2015 through 2020 

[which] is in compliance with the 0.2 

pounds per mmBtu SO2 emission limit 

of the MATS rule for coal-fired EGUs, 

which the company claims is adequate 

to meet the exemption outlined in the 

EPA’s August 20, 2019 Guidance on 

Regional Haze State Implementation 

Plans for the Second Implementation 

Period. . . .’’ 65 MonPower further 

claims that ‘‘Harrison is subject to and 

meets the limits of the CSAPR FIP, and 

EPA and the courts have previously 

determined CSAPR is better than 

BART.’’ 

For Grant Town Plant, WV DEP stated 

in its SIP submittal 66 that because ‘‘the 

facility is already subject to a federally 

enforceable Title V permit (R30– 

04900026–2020) that limits SO2

emissions to less than the quantity 

projected to exceed the 1.00% visibility 

threshold of the VISTAS PSAT 

modeling, it was determined that a 

reasonable progress analysis or a fourfactor analysis request for Grant Town 

Plant was not warranted’’ and that 

‘‘Grant Town maintains adequate SO2

emissions credits from CAMD for its 

SO2 emissions, and the facility is subject 

to the CSAPR SO2 budget.’’ WV DEP 

also claimed that the remaining lifespan 

of Grant Town Power Plant is thirteen 

years, or until 2035,67 when the power 

purchase agreement for the facility 

expires, and that WV DEP does not 

anticipate that this power purchase 

agreement will be extended. WV DEP 

therefore concludes ‘‘additional SO2

controls would not be economically 

feasible for such a small and unique 

facility with a looming anticipated 

retirement date.’’ 68 Because of the 

reasons previously stated, WV DEP 

decided to not request a four-factor 

analysis from Grant Town Power 

Plant.69

For Fort Martin Power Station, WV 

DEP included in its SIP submittal 70 the 

same claims that MonPower relied on 

for screening out Harrison Power 

Station from additional analysis, except 

that MonPower stated that ‘‘Fort Martin 

averaged 0.11 pounds per mmBtu SO2

emissions from 2015 through 2020.’’ 

WV DEP also claimed that the 

remaining lifespan of Fort Martin Power 

Station is expected to be four years, or 

2026, when WV DEP expects ‘‘the 

proposed Good Neighbor CSAPR FIP 

would require the facility to install SCR 

for NOx control’’ and that WV DEP does 

not expect the facility’s owner/operator 

to do so.71

For Mitchell Power Plant, WV DEP 

stated in its SIP submittal 72 that, when 

asked for a reasonable progress analysis, 

facility owner/operator Kentucky Power 

Company (KPCo), a subsidiary of 

American Electric Power (AEP), 

responded that ‘‘Mitchell emissions 

were well ahead of the uniform rate of 

progress goals to natural background 

visibility’’; that ‘‘continuing emissions 

reductions and retirements of coal-fired 

EGUs within the eastern United States, 

including within the AEP system, 

would provide for continuing progress 

within the planning period without the 

need for additional SO2 emissions 

reductions from Mitchell’’; that 

‘‘Mitchell already employs the most 

effective type of SO2 controls available, 

which are designed to achieve a 

minimum of 98% emissions reduction’’; 

that ‘‘first CAIR and then CSAPR were 

previously determined by EPA to be 

better than BART, and Mitchell is in 

compliance with the CSAPR emissions 

trading program’’; that ‘‘Mitchell has 

always achieved the 0.2 pounds SO2 per 

million Btu limit implemented by the 

MATS rule as a surrogate compliance 

emission limit, often by less than half 

this amount on an annual basis’’; and 

that ‘‘EPA’s own guidance States 

sources which were selected for analysis 

in the first planning period, and which 

installed BART controls could be 

excluded from analysis for the second 

planning period.’’ Based on these 

claims, KPCo concluded that no further 

evaluation of Mitchell nor additional 

SO2 controls are necessary. 

For John E. Amos Power Plant, WV 

DEP stated in its SIP submittal 73 that, 

when asked for a reasonable progress 

analysis, facility owner/operator 

Appalachian Power Company (APCo), 

stated that ‘‘Amos emissions were well 

ahead of the uniform rate of progress 

goals to natural background visibility’’; 

that continuing emissions reductions 

and retirements of coal-fired EGUs 

within the eastern United States, 

including within the AEP system, 

would provide for continuing progress 

within the planning period without the 

need for additional SO2 emissions 

reductions from Amos’’; that ‘‘Amos 

already employs the most effective type 

of SO2 controls available, which are 

designed to achieve a minimum of 98% 

emissions reduction’’; that ‘‘first CAIR 

and then CSAPR were previously 

determined by EPA to be better than 

BART, and Amos complies with the 

CSAPR emissions trading program’’; 

that ‘‘Amos has always achieved the 0.2 

pounds SO2 per million Btu limit 

implemented by the MATS rule as a 

surrogate compliance emission limit, 

often by well less than half this amount 

on an annual basis’’; and that ‘‘EPA’s 

own guidance States sources which 

were selected for analysis in the first 

planning period, and which installed 

BART controls could be excluded from 

analysis for the second planning 

period.’’ Based on these claims, APCo 

concluded that no further evaluation of 

Amos nor additional SO2 controls are 

necessary. 

WV DEP’s rejection of reasonable 

progress measures for Harrison Power 

Station, Grant Town Plant, Fort Martin 

Power Station, Mitchell Power Plant, 

and John E. Amos Power Plant is not 

based on consideration of the 

mandatory four factors and instead 

appears to be based, at least in part, on 

the facility owners’ contention that 

these facilities are effectively controlled 

via existing measures,74 as described in 


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of 257. EPA has addressed in this NPRM the issues 

raised by the facilities to the extent they may have 

been relied upon by West Virginia. 

75See August 2019 Guidance at 22–25. 

76Section 4 of the 2021 Clarifications Memo, 

pages 8–9. See also CAA 169A(b)(2); 40 CFR 

51.308(f)(2). 

77Section 4 of the 2021 Clarifications Memo. See 

also CAA 169A(b)(2); 40 CFR 51.308(f)(2). 

Additionally, consistent with our proposed partial 

disapproval of Arizona’s Haze Plan (see 89 FR 

47398, May 31, 2024), if a state determines no new 

measures are necessary for reasonable progress, the 

must then determine whether a source’s existing 

measures are necessary for reasonable progress. 

EPA finalized partial disapproval of Arizona’s Haze 

Plan on December 18, 2024 (see 89 FR 102744). 

78Consistent with our proposed partial 

disapproval for Wyoming’s Haze Plan (see 89 FR 

63030, August 1, 2024), to the extent a state finds 

its existing measures are not necessary for 

reasonable progress, a state must provide a 

demonstration supporting their claim. EPA 

finalized partial disapproval of Wyoming’s Haze 

Plan on December 2, 2024 (see 89 FR 95121). See 

also 2019 Guidance at 22–25. 

79EPA is not stating that all existing measures are 

required to be in the SIP. As we acknowledged in 

the 2021 Clarifications Memo, ‘‘there may be 

circumstances in which a source’s existing 

measures are not necessary to make reasonable 

progress.’’ However, EPA would expect that if a 

state believed that existing measure are not 

necessary for reasonable progress for the second 

planning period the state would ‘‘demonstrate that 

a source will continue to implement its existing 

measures and will not increase its emission rate, it 

may not be necessary to require those measures 

under the regional haze program in order to prevent 

future emission increases.’’ 2021 Clarifications 

Memo at 9. WVDEP provided no demonstration or 

explanation of its decision not to evaluate existing 

controls for these sources. 

80 ‘‘Cost Estimates for Scrubber Replacement at 

Facilities Selected for Four Factor Analyses’’ at 206 

of 257 of the SIP submittal. Note also that as part 

of source selection West Virginia gives as a reason 

for not choosing Morgantown Energy Associates 

facility for reasonable progress analysis its filing of 

a permit application for two boiler retirements 

scheduled for 2020, SIP submittal at 184 of 257. 

81West Virginia states that Pleasants Power 

should be placed on the deactivation list by June 

1, 2023, SIP submittal 206 of 257 and uses this as 

the lifespan of the facility in estimating costs of 

replacement controls as discussed below. West 

Virginia also lists a number of past shutdowns for 

various West Virginia facilities in section 7.2.2, 

‘‘State Control Programs Included in the 2028 

Projection Year.’’ 

82Appendix H–4, ‘‘West Virginia Department of 

Environmental Protection Division of Air Quality 

Responses to EPA Region 3 Comments on the West 

Virginia Draft Regional Haze State Implementation 

Plan August 2022,’’ section 2, WV DEP’s Regional 

Haze SIP Submittal for the 2nd Planning Period. 

83While fuel conversions are not mentioned with 

respect to the six sources, West Virginia describes 

fuel conversions for other facilities at section 7.2.2, 

‘‘State Control Programs Included in the 2028 

Projection Year.’’ In the body of the main SIP 

submittal at section 7.2.2, West Virginia neither 

indicates whether it is relying on these fuel 

conversions as measures necessary for reasonable 

progress in the second planning period nor does it 

include the necessary documentation to ensure that 

the emission reductions resulting from the fuel 

conversions are permanently and federally 

enforceable. However, in Appendix H–4, section 4, 

in responding to EPA comments, West Virginia 

discusses non-EGU industrial boilers being replaced 

with natural gas units and states that it ‘‘considers 

boiler replacements at these smaller non-EGU 

Sources to be reasonable progress’’ and that 

‘‘[f]ederally enforceable permits demonstrating 

these changes have been added to the SIP 

supporting documentation.’’ EPA is unable to locate 

these permits in the supporting documentation 

appended to the SIP submittal. 

84Appendix H–4, section 2. 

85SIP submittal at 197 and 198 of 257. 

86The MATS SO2 limit is a limit that facilities 

may use to demonstrate that they meet the HCl limit 

for MATS, but facilities also have the option of 

directly complying with the MATS HCl limit, and 

therefore are not necessarily required to meet the 

MATS SO2 limit unless the limit is included as a 

specific permit condition. 

the August 2019 Guidance.75 However, 

if the outcome of a four-factor analysis 

is that no new measures are reasonable 

for a source, the EPA has interpreted the 

statute and the RHR to require that the 

source’s existing measures are needed to 

prevent future visibility impairment 

(i.e., to prevent future emission 

increases) and thus necessary to make 

reasonable progress.76 If existing 

controls are determined to be necessary 

to make reasonable progress the existing 

controls must be incorporated into the 

SIP and made federally enforceable and 

permanent within the long-term 

strategy.77 Furthermore, if a State does 

not find its existing measures necessary 

for reasonable progress, a State must 

submit a demonstration within its 

submittal supporting its rationale.78

However, WV DEP did not provide any 

demonstration assessing the necessity of 

existing measures for reasonable 

progress; did not provide 

documentation for any specific existing 

measures such as permits, emissions 

limitations, or consent decrees; did not 

identify any existing controls to be 

included in the long-term strategy for 

the second planning period; and in the 

event the State found its existing 

controls unnecessary for reasonable 

progress, did not provide a 

demonstration supporting such a 

statement.79 WV DEP also cites 

anticipated source retirements, i.e., 

shutdowns (for example, Fort Martin by 

2026) as reasons for not requiring new 

measures on screened-in sources as a 

result of reasonable progress analyses.80

WV DEP also states that its estimated 

expected visibility improvements in its 

two Class I areas will be achieved via 

proposed or past shutdowns.81

However, while WV DEP provides 

information regarding anticipated and 

prior shutdowns within its submittal, it 

also states that it ‘‘considers all 

shuttered facilities which emit air 

pollution as necessary for reasonable 

progress towards the goal of minimizing 

anthropogenic visibility impairment at 

Class I areas.’’ 82

Nevertheless, WV DEP did not 

include the necessary documentation 

(e.g., for sources that have recently 

retired, documentation that 

demonstrates applicable sources are 

unable to resume operation and/or the 

State has revoked the active air permits) 

to ensure such shutdowns are made 

federally enforceable and permanent 

within the SIP.83 In fact, WV DEP stated 

that ‘‘modifying the SIP to reflect every 

permit modification or facility 

shutdown which contributes to 

reasonable progress is itself not 

reasonable.’’ 84 However, the RHR at 40 

CFR 51.308(f)(2) and (3) requires that 

measures necessary for reasonable 

progress must be enforceable, 

documented and included in the SIP. 

WV DEP has not done so with respect 

to either existing or anticipated source 

shutdowns. 

Furthermore, WV DEP did not explain 

or adequately justify the absence of 

existing measures for certain facilities 

identified in the reasonable progress 

discussion within its SIP submission. 

WV DEP presents information from four 

of the facilities in support of those 

facilities’ claims that four-factor 

analyses and SO2 permit limits are 

unnecessary (Harrison Power Station, 

Fort Martin Power Station, Mitchell 

Power Plant, John E. Amos Power Plant) 

because they emit at or below the 

Mercury and Air Toxics Standards 

(MATS) SO2 limits. To support its 

decision, WV DEP cites page 23 of the 

2019 Guidance.85 However, while States 

may rely on the use of applicable SO2

limits (such as the 0.2 lb/MMBtu MATS 

limit) as being necessary for reasonable 

progress for the second planning period, 

States must have adopted either permit 

conditions or State regulations 

containing the SO2 limit(s) for the 

source(s) in question. Furthermore, the 

State must incorporate the applicable 

permit conditions or State regulations 

into the State’s SIP submittal to make 

the conditions permanent and federally 

enforceable.86 Without documentation 

confirming what SO2 limits are 

necessary for reasonable progress, and 

documentation that the four sources are 

required to meet a federally enforceable 

and permanent permit condition equal 

to the applicable MATS SO2 limits, 

West Virginia has not fulfilled its 

obligation under the CAA and RHR 

under 40 CFR 51.308(f)(2) to develop a 

long-term strategy containing 

enforceable measures that are necessary 

to make reasonable progress in the 

second planning period. 

WV DEP presents justifications from 

the facilities regarding compliance with 

BART control efficiencies (Harrison 

Power Station, Fort Martin Power 

Station) and CSAPR emissions trading 


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87 2019 Guidance at 25. 

88 Guidance on Regional Haze State 

Implementation Plans for the Second 

Implementation Period. www.epa.gov/visibility/ 

guidance-regional-haze-state-implementationplans-second-implementation-period. The EPA 

Office of Air Quality Planning and Standards, 

Research Triangle Park (August 20, 2019). 

89 83 FR 48249 (September 24, 2018). See also see 

September 16, 2015 ‘‘West Virginia State 

Implementation Plan Revision for Regional Haze 

and Clean Air Act § 110(a)(2)(D)(i)(II) for Visibility 

Protection,’’ www.regulations.gov/document/EPA– 

R03–OAR–2018–0217–0002. 

90See the 2017 RHR, 82 FR 3093 and 3099, 

January 10, 2017. 

91See 2019 Guidance at 50 and 2021 

Clarifications Memo at 15. 

92See, for example, pages 201–202 of WV DEP’s 

Regional Haze SIP Submittal for the 2nd Planning 

Period. 

93 2021 Clarifications Memo at 15. 

94The four statutory factors are the costs of 

compliance, the time necessary for compliance, the 

energy and non-air quality environmental impacts 

of compliance, and the remaining useful life of any 

potentially affected anthropogenic source of 

visibility impairment. See CAA 169A(g)(1) and 40 

CFR 51.308(f)(2)(i). 

95Section 7.8 of the SIP submittal at 199 of 257. 

(Grant Town Power Plant, Mitchell 

Power Plant, John E. Amos Power Plant) 

as reasons not to conduct four-factor 

analyses to evaluate additional 

measures that may be necessary for 

reasonable progress in the second 

planning period. Although it may be 

reasonable for a State not to select a 

particular source with BART-eligible 

units that installed and began operating 

controls to meet BART emission limits 

for the first implementation period on a 

pollutant-specific basis for further 

analysis,87 the Regional Haze Rule at 40 

CFR 51.308(e)(5) anticipates the reassessment of BART-eligible sources 

under second planning period SIP 

emissions control analyses. A State 

might, however, have a different, 

reasonable basis for not selecting such 

sources for control measure analysis.88

To the extent that this basis applies to 

the sources WV DEP selected for further 

analysis, West Virginia must document 

this basis within its SIP submittal as 

required by 40 CFR 51.308(f)(2)(i) and 

(iii). In this case, West Virginia failed to 

do so. Additionally, West Virginia’s 

BART determination for EGUs for the 

regional haze first planning period 

relied on CSAPR as an alternative to 

source-specific BART determinations.89

CSAPR is a trading program that does 

not impose specific emissions 

limitations on particular facilities. And 

in fact, WV DEP did not identify any 

enforceable and permanent SO2 limits 

that apply to the selected power plants 

subject to CSAPR. Therefore, in 

accordance with 40 CFR 51.308(e)(5), it 

is not reasonable for West Virginia to 

exclude the selected BART-eligible 

sources from consideration under the 

four statutory factors, simply because 

they are in compliance for BART. 

Finally, WV DEP also notes, as the 

facilities noted, that several consent 

decrees related to currently installed 

SO2 scrubbers for two of the facilities 

identified for further evaluation in its 

SIP (Mitchell Power Plant, John E. Amos 

Power Plant). But WV DEP does not 

state whether the consent decrees 

impose any specific emission limits, 

and does not ask for the measures 

required under the consent decrees 

submitted to be made federally 

enforceable and permanent within the 

SIP if there are such specific emission 

limits. 

In conclusion, while WV DEP 

reiterates the facilities’ information— 

that there are or may be anticipated or 

recent source retirements, the applicable 

MATS SO2 emissions limits, BART 

requirements, and consent decrees 

within its SIP submittal for five of the 

sources selected for consideration under 

the four statutory factors—WV DEP 

provides no documentation or evidence 

within its submittal that it has 

incorporated the aforementioned 

existing effective controls as federally 

enforceable and permanent measures to 

be included in its long-term strategy for 

the second planning period. 

Additionally, WV DEP provides no 

evidence of, or documentation of, an 

actual long-term strategy that contains 

enforceable emissions limitations that 

West Virginia has determined are 

necessary to make reasonable progress 

as required by CAA 169A and the RHR, 

40 CFR 51.308(f)(2). 

For four of the six facilities (Harrison 

Power Station, Fort Martin Power 

Station, John E Amos Power Plant, 

Mitchell Power Plant) that were selected 

to determine measures necessary for 

reasonable progress, WV DEP also cites 

information from the owners of the 

power plants with reference to its 

progress toward achieving the URP 

glidepath for Dolly Sods and Otter 

Creek. The facility owners cite being 

below the URP as an additional reason 

for not providing four-factor analyses or 

imposing any reasonable progress 

measures or controls. While it is not 

clear if West Virginia is relying on any 

of the information provided by the 

facilities, including the URP, the EPA 

reinforces the fact that reliance on being 

at or below the URP is not a basis to 

forgo requiring further analysis of 

emissions measures for these sources, in 

the 2017 RHR preamble, the EPA clearly 

stated that being on or below the URP 

is not a ‘‘safe harbor’’; i.e., achieving the 

URP does not mean that a Class I Area 

is making ‘‘reasonable progress’’ and 

does not relieve a State from using the 

four statutory factors to determine the 

emissions measures needed to achieve 

such progress.90 Simply being below the 

URP should therefore not be used as a 

factor when determining what 

additional controls, if any, are necessary 

for reasonable progress. The URP is a 

planning metric used to gauge the 

amount of progress made thus far and 

the amount left to make. Because the 

URP is not based on the four statutory 

factors, it cannot be used to determine 

whether the amount of progress made in 

any particular implementation period is 

reasonable.91

WV DEP also indicates that SO2

reductions achieved in the first 

planning period for certain sources or 

facilities—including Harrison Power 

Station, Fort Martin Power Station, 

Mitchell Power Plant, and John E. Amos 

Power Plant—was raised by those 

facilities as a justification to excuse 

them from having to undergo further 

evaluation and a four-factor analysis.92

The EPA acknowledges that West 

Virginia made significant reductions in 

SO2 emissions in the first planning 

period and that surrounding States and 

RPOs contribute to SO2 emissions in 

West Virginia Class I Areas. But, to the 

extent that West Virginia is relying on 

this rationale, neither the Regional Haze 

Rule nor the CAA allows a State to 

avoid properly considering the four 

factors, in reliance on their previous 

planning period reductions and/or due 

to emissions in other States, as required 

by CAA 169A(g)(1) and the RHR, 40 

CFR 51.308(f)(2). Additionally, the EPA 

has advised States that a source’s 

visibility impact relative to a State’s 

total contribution to visibility 

impairment is relevant to ensuring that 

a State is addressing its own 

contribution regardless of what other 

States are doing.93

b. Pleasants Power Station 

As previously discussed, WV DEP 

evaluated six facilities as part of the 

reasonable progress analysis to 

determine if any potential emissions 

reduction measures were necessary for 

reasonable progress in the second 

planning period. Of these six facilities, 

only Pleasants Power Station (owned 

and operated by Energy Harbor) 

submitted an analysis utilizing the four 

statutory factors prescribed under CAA 

169A(g)(1) and 40 CFR 51.308(f)(2)(i).94

The Pleasants Power Station reasonable 

progress analysis considered three precombustion and five post-combustion 

SO2 emissions controls.95 The preVerDate Sep<11>2014 19:06 Jan 18, 2025 Jkt 265001 PO 00000 Frm 00107 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1

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96LSFO is the correct abbreviation, though West 

Virginia also uses the incorrect abbreviation LFSO 

multiple times in the SIP submittal as quoted by 

EPA. 

97Section 7.8 of the SIP submittal at 199 of 257. 

98Appendix G–2 at G–2d ‘‘Response Letter from 

Energy Harbor (Pleasants Station),’’ WV DEP’s 

Regional Haze SIP Submittal for the 2nd Planning 

Period. 

99See Appendix G–2 at G–2d section 4.2 ‘‘Step 

2: Eliminate Technically Infeasible SO2 Control 

Technologies’’ of the ‘‘Regional Haze Four Factor 

Analysis.’’ 

100The cost data provided in the WV DEP 

Regional Haze SIP Submittal is presented in table 

4.1.2 of the January 2021 ‘‘Regional Haze FourFactor Analysis,’’ in various units of $/KW, $/kwyr, and $/MWh. It is unclear how these values relate 

to EPA’s recommended metric of cost/ton of 

emissions reduction. It is also unclear how/if West 

Virginia relied on these costs, since these controls 

were deemed to be technically infeasible, rather 

than being too costly. See 2019 Guidance at 31. 

101Section 7.8 of the SIP Submittal at 200 of 257. 

102See 2019 Guidance at 22–25 

103Section 4 of the 2021 Clarifications Memo, 

pages 8–9. See also CAA 169A(b)(2); 40 CFR 

51.308(f)(2). 

combustion control options considered 

were: utilization of lower sulfur coals; 

fuel blending with limestone; and coal 

cleaning. The post-combustion controls 

considered were: wet limestone 

scrubbers, also known as limestone 

forced oxidation scrubbers (LSFO); 96

spray dry absorbers (SDA); dry sorbent 

injection (DSI); circulating dry scrubbers 

with fabric filters (DS/FF); and hydrated 

ash reinjection (HAR).’’ 97 Based on the 

documentation provided within the 

submittal, it appears WV DEP relied, at 

least in part, on the January 2021 

‘‘Regional Haze Four-Factor Analysis’’ 98

provided by Energy Harbor to eliminate 

all potential control options, aside from 

LSFO, from further consideration under 

the four statutory factors under the basis 

of technological feasibility. However, 

the justifications provided by Energy 

Harbor as to why it determined these 

control options to be infeasible are more 

appropriately considered within the 

context of an economic analysis. For 

example, Energy Harbor stated that use 

of lower sulfur coal is technologically 

infeasible. To justify this statement, 

Energy Harbor explained that use of 

lower sulfur coal would require facility 

modifications. While those 

modifications would come with some 

associated cost (which is not quantified 

or documented within the West Virginia 

submittal), those modifications are not 

described in sufficient detail for the 

EPA to be able to evaluate whether these 

options are, in fact, technologically 

infeasible. WV DEP did not provide any 

additional explanation or analysis 

beyond that provided by Energy Harbor. 

Similarly, several post-combustion 

controls—spray dryer absorber, dry 

sorbent injection, circulating dry 

scrubber, and hydrated ash reinjection— 

were also stated to be technologically 

infeasible, but the justifications are, 

again, primarily economic in nature.99

Table 1–1 of the January 2021 ‘‘Regional 

Haze Four-Factor Analysis’’ lists loss of 

revenue from sale of recovered gypsum 

and the need to add a particulate 

removal system and dry by-product 

disposal issues as the primary reasons to 

reject these controls on the basis of 

technological infeasibility. First, as with 

the pre-combustion controls, WV DEP 

(and the facility) have not provided 

sufficient detail for the EPA to be able 

to adequately evaluate whether these 

potential control options were 

appropriately eliminated from further 

analysis under the four statutory factors 

based on technological infeasibility. 

Second, while there may be legitimate 

technological issues with the addition of 

a particulate removal system (e.g., plant 

layout/space constraints), the loss of 

revenue from gypsum recovery and 

additional waste removal costs are 

economic in nature and more 

appropriately considered under the cost 

of compliance factor. However, neither 

Energy Harbor, nor WV DEP, provided 

sufficient evidence as to how these 

factors would impact the cost of 

compliance for implementing these 

control technologies. While the facility 

did provide some cost data within its 

submittal to the State, neither the source 

nor the State provided cost calculations 

in the form of dollar per ton of 

emissions reduced. Therefore, because 

there is no detailed cost analysis 

documented within the SIP submittal 

using an established metric such as 

dollar per ton, the EPA therefore is 

unable to evaluate whether these 

controls might be available at reasonable 

cost.100 West Virginia failed to 

substantiate its determination that 

energy and non-air quality impacts 

resulting from the installation of SO2

control measures and the remaining 

useful life of the units did not justify the 

cost of installing SO2 controls. West 

Virginia also failed to reasonably 

quantify and consider the ‘‘cost of 

compliance’’ and develop a record with 

respect to those costs as a basis for 

eliminating potential control options, in 

addition to incorrectly classifying the 

rationale as being based on 

technological infeasibility. These 

deficiencies result in an inadequate 

consideration by West Virginia of the 

four factors to eliminate possible 

controls for reasonable progress. 

With respect to LSFO, which was the 

single control option that was deemed 

to be technologically feasible and was 

evaluated for cost of compliance, WV 

DEP stated that Energy Harbor estimated 

the ‘‘cost-effectiveness of the LFSO (sic) 

system is $11,292.95 per ton, or 

$9,931.94 per ton for one scrubber,’’ and 

‘‘the installation time for an LFSO (sic) 

system at Pleasants to be approximately 

5 years with 2–3 years of plant nonoperation, which is insurmountable lost 

revenue.’’ 101 However, neither Energy 

Harbor nor WV DEP has provided 

documentation within the record to 

support these calculations and the 

assertion that a two-year outage would 

be necessary for the modifications. 

In addition to the deficient four-factor 

analysis, West Virginia’s submission 

does not meet the requirements of CAA 

169A or 40 CFR 51.308(f) because it did 

not analyze or include federally 

enforceable existing effective measures 

for Pleasants Power Station as necessary 

measures to meet reasonable progress 

for the second planning period. As we 

noted in our discussion with respect to 

West Virginia’s failure to consider 

existing measures for the facilities for 

which it ultimately did not require a 

four-factor analysis, West Virginia’s 

rejection of new controls for Pleasants 

Power Station should have resulted in 

consideration of whether existing 

measures at Pleasants Power Station are 

necessary for reasonable progress.102

The RHR is designed to achieve the 

statutory goal of ‘‘remedying of any 

existing, impairment of visibility in 

mandatory class I Federal areas which 

impairment results from manmade air 

pollution,’’ CAA 169A(a), through a 

‘‘long-term strategy [that] must include 

the enforceable emissions limitations, 

compliance schedules, and other 

measures that are necessary to make 

reasonable progress, as determined 

pursuant to [40 CFR 51.308](f)(2)(i) 

through (iv).’’ 40 CFR 51.308(f)(2). 

While existing visibility impairment is 

remedied by reducing emissions from 

existing sources, the EPA has explained 

that ‘‘[f]uture visibility impairment is 

prevented by mitigating impacts from 

new sources and ensuring that existing 

sources do not increase their emissions 

in a manner inconsistent with 

reasonable progress.’’ Therefore, 

‘‘[w]hen the outcome of a four-factor 

analysis is that no new measures are 

reasonable for a source, the source’s 

existing measures are generally needed 

to prevent future visibility impairment 

(i.e., to prevent future emission 

increases) and thus necessary to make 

reasonable progress. Measures that are 

necessary to make reasonable progress 

must be included in the SIP.’’ 103 West 

Virginia eliminated additional control 

measures with a deficient and 


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104See 2019 Guidance at 50 and 2021 

Clarifications Memo at 15. 

105Section 7.8 of the SIP Submittal at 204, 206 

of 257 

106 2019 Guidance at 34 (‘‘In the situation of an 

enforceable requirement for the source to cease 

operation before the end of the useful life of the 

controls under consideration, a state may use the 

enforceable shutdown date as the end of the 

remaining useful life. To the extent such a 

requirement is being relied upon for a reasonable 

progress determination, the measure would need to 

be included in the SIP and/or be federally 

enforceable. See 40 CFR 51.308(f)(2).’’). 

107 ‘‘Cost Estimates for Scrubber Replacement at 

Facilities Selected for Four Factor Analyses’’ SIP 

submittal at 202 of 257. 

108SIP submittal at 203 of 257. 

109 Id. 

110Table 7–38, SIP submittal at 205 of 257, and 

‘‘Cost Estimates for Scrubber Replacement at 

Facilities Selected for Four Factor Analyses’’ at 206 

of 257. 

111West Virginia states that the remaining 

lifespan of Grant Town Plant lasts until 2035 at 

page 206 of the SIP submittal and 2036 at page 198 

of the SIP submittal. 

112SIP submittal at 206 of 257. 

113Appendix H–4, ‘‘West Virginia Department of 

Environmental Protection Division of Air Quality 

Responses to EPA Region 3 Comments on the West 

Virginia Draft Regional Haze State Implementation 

Plan August 2022,’’ section 3. See also SIP 

submittal at 206 of 257. 

114 2019 Guidance at 20. 

inadequately justified or documented 

four-factor analysis and then did not 

analyze whether existing measures at 

Pleasants Power Station were necessary 

for reasonable progress, leaving the EPA 

unable to determine if the existing 

control measures should have been 

included in the long-term strategy as 

required by 40 CFR 51.308(f)(2) and 

outlined in our 2019 Guidance at 20–22. 

West Virginia also stated in its SIP 

submittal that ‘‘Energy Harbor noted the 

mandatory Federal Class I areas where 

the VISTAS PSAT modeling predicted 

greater than 1.00% threshold visibility 

impacts from the facility are presently 

well below the URP glide paths, 

demonstrating already implemented 

past emissions reductions measures 

have been and continue to be 

successful.’’ Like the discussion in 

section IV.E.2.a. of this document 

regarding the other five facilities, simply 

being below the URP should not be used 

to determine what additional controls, if 

any, are necessary for reasonable 

progress, as the URP is only meant to 

gauge the amount of progress made thus 

far and the amount left to make. Because 

the URP is not based on the four 

statutory factors, it cannot be used to 

determine whether the amount of 

progress made in any particular 

implementation period is reasonable.104

While it is unclear as to what extent 

Energy Harbor relied upon this 

assumption when conducting its 

analyses, the EPA reiterates that the 

URP cannot be used to eliminate 

additional control measures from 

consideration under a reasonable 

progress analysis/four statutory factors. 

WV DEP stated that the remaining 

useful life of Pleasants Power Station is 

one year, based on the claim that Energy 

Harbor placed both units on the PJM 

deactivation list for deactivation by June 

1, 2023.105 However, as of November 

2024, there is no evidence as to if this 

facility remains in operation or has 

permanently shut down, and WV did 

not include any documentation with its 

SIP submittal to substantiate this 

anticipated shutdown that would make 

it permanent and federally enforceable 

within the SIP submittal.106 As 

explained previously in the discussion 

on the other facilities selected for 

reasonable progress, certain retirements/ 

shutdowns could be considered as part 

of West Virginia’s long-term strategy for 

making progress towards the national 

goal, provided that they are made 

permanent and federally enforceable 

and are included in the SIP. However, 

West Virginia has not requested that the 

shutdown, nor provided the necessary 

documentation of the shutdown, for it to 

be included as a permanent and 

federally enforceable measure necessary 

for reasonable progress its long term 

strategy in the SIP. Therefore, the EPA 

concludes there is nothing within WV 

DEP’s submittal to substantiate the use 

of the one year remaining useful life 

provided for Pleasants Power Station. 

c. West Virginia’s Cost Estimates and 

Four-Factor Analyses for Replacing 

Existing SO2 Controls With New LSFO 

Scrubbers 

As previously discussed, WV DEP 

provided its own independent cost 

estimates analyzing the replacement of 

existing BART SO2 controls with new 

LSFO scrubbers for all six facilities in 

section 7.8 of the SIP submittal. WV 

DEP stated within its submittal that 

LSFO ‘‘is considered the best 

technology with the highest SO2

removal efficiency of all coal and acid 

gas control technologies.’’ 107 In table 7– 

37,108 WV DEP estimated the facilitywide cost per potential ton of emission 

reduction based on a twenty-year 

remaining life expectancy. 

As set forth in table 7–38, WV DEP 

then estimated the cost per potential ton 

of emission reduction for each unit 

based on the anticipated remaining 

useful life of each unit. WV DEP states 

that these per-unit cost estimates are 

‘‘significantly more representative’’ 

because the estimates in table 7–37 ‘‘are 

quite generous in assuming the expected 

life of the selected facilities to be 20 

years.’’ 109 WV DEP stated that the 

remaining useful life of Fort Martin 

Power Station is anticipated to be four 

years, or until 2026, when WV DEP 

expects ‘‘the proposed Good Neighbor 

CSAPR FIP would require the facility to 

install SCR for NOX control’’ and that 

WV DEP does not expect the facility’s 

owner/operator to do so.110 WV DEP 

also stated that the remaining useful life 

of Grant Town Plant is thirteen years, or 

2035,111 when the power purchase 

agreement for the facility expires, and 

that WV DEP does not anticipate that 

this power purchase agreement will be 

extended beyond 2035. WV DEP also 

stated that the remaining lifespans of 

Harrison Power Station, the John E. 

Amos Plant, and the Mitchell Plant each 

are not anticipated to exceed fifteen 

years, or 2037, based on the age of the 

facility in 2037 (sixty-five years old) 

compared to the fifty-year average 

lifespan of coal-fired power plants in 

the United States according to the 

Energy Information Administration 

(EIA).112 Finally, as discussed 

previously, WV DEP stated that the 

remaining lifespan of Pleasants Power 

Station is one year, as the owner/ 

operator placed the facility on the PJM 

list for deactivation by June 1, 2023, 

though WV DEP’s response to the EPA’s 

comments also notes that this shutdown 

is ‘‘not currently enforceable.’’113

Furthermore, WV DEP has not provided 

any evidence that the described 

retirement dates for any of the six 

facilities it performed cost effectiveness 

analyses for are federally enforceable 

and permanent within its SIP submittal. 

In addition to ‘‘remaining useful life’’ 

being one of the four statutory factors, 

the EPA has previously established 

within its 2019 Guidance that a short 

remaining useful life is also directly 

correlated with the cost of compliance 

factor, as the annualized calculated cost 

of compliance generally increases with 

a shorter remaining useful life based on 

the decreasing amortization period.114

In other words, a short remaining useful 

life increases the remaining cost of 

compliance for implementing new or 

additional emissions control 

technologies. As previously discussed, 

WV DEP has not provided sufficient 

evidence within its SIP submittal that 

any of the six retirement dates are 

federally enforceable to warrant the use 

of a shorter remaining useful life within 

its cost estimates. Therefore, the EPA is 

unable to conclude whether the 

provided dates represent a reasonable 


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115The EPA Control Cost Manual generally 

recommends an assumed 30-year lifetime for 

scrubbers and used a 30- year lifetime in all of the 

Control Cost Manual example calculations. See 

Section 5—Chapter 1: Wet and Dry Scrubbers for 

Acid Gas Control, pp 1–8 and 1–36 to 1–37, 

available atwww.epa.gov/sites/default/files/2021- 

05/documents/wet_and_dry_scrubbers_section_5_

chapter_1_control_cost_manual_7th_edition.pdf. 

See also 2019 Guidance at 33–34 (‘‘In the situation 

where an enforceable shutdown date does not exist, 

the remaining useful life of a control under 

consideration should be full period of useful life of 

that control as recommended by EPA’s Control Cost 

Manual.’’). 

116 Kilowatthour (kWh) is a measure of electricity 

defined as a unit of work or energy, measured as 

1 kilowatt (1,000 watts) of power expended for 1 

hour. 

117 82 FR 3088. 

118West Virginia’s independent analysis did not 

consider two of the four statutory factors of CAA 

section 169A(g)(1)—the energy and non air quality 

environmental impacts of compliance and time 

necessary for compliance. 

119See section 7.6.4 of the SIP submittal at 180 

of 257. 

120 Id. 

121See January 5, 2022, letter from Cristina 

Fernandez, Director Air and Radiation Division, 

EPA Region 3 to Laura Crowder, Division of Air 

Quality, WV DEP, in the rulemaking docket for this 

action. 

assumption upon which to base a cost 

analysis 115. 

Additionally, the cost estimates that 

WV DEP performed for the six facilities 

discussed in IV.E.2.a. and IV.E.2.b., of 

this document, are insufficiently 

justified within its SIP submittal. For 

example, WV DEP includes categories of 

costs (such as new LSFO costs and 

annual operation and maintenance costs 

as facility-wide and unit-specific costs) 

in tables 7–37 and 7–38. WV DEP 

explains that these costs were based on 

a 9,500 Btu/kWH 116 heat rate and an 

assumed 20-year lifetime. However, WV 

DEP does not provide any evidence 

supporting how it established those 

costs, nor does WV DEP explain the 

origin of such information including its 

underlying calculations or 

documentation. For example, as noted 

above, WV DEP did not provide unit 

level evidence of enforceable and 

permanent retirements for units that 

have an assumed shortened lifetime in 

table-7–38. But WV DEP also did not 

adequately explain why they used a 20- 

year lifetime for the calculations in table 

7–37 instead of a 30-year lifetime, as 

recommended in the EPA’s Control Cost 

Manual. Comparing the existing age of 

operating plants to the average age of all 

plants in the country is not an 

appropriate justification for assuming a 

shortened lifetime (using 20 years 

instead of 30 years). The EPA agrees that 

it would likely be impractical and 

prohibitively expensive to remove the 

existing control equipment and replace 

it with entirely new controls in pursuit 

of relatively minor improvements in 

emission reduction efficiency. However, 

this is not the appropriate basis upon 

which to exclude potential additional 

measures (e.g., optimization of existing 

controls with a corresponding emissions 

limit) from consideration in a 

reasonable progress analysis, and would 

be inconsistent with consideration of a 

‘‘meaningful set’’ of control options.117

In addition, as West Virginia is 

requiring no additional emissions 

reductions measures for selected 

sources in the second planning period, 

the SIP submittal also does not explain 

or adequately support the absence of 

analysis or documentation of existing 

measures within the SIP (e.g., existing 

permit limits) for the facilities identified 

in the reasonable progress discussion 

and whether those measures are 

necessary for reasonable progress. West 

Virginia’s deficient and insufficiently 

documented cost estimates ultimately 

result in the State’s failure to develop a 

long-term strategy containing 

enforceable measures that are necessary 

to make reasonable progress in the 

second planning period under CAA 

169A and RHR 40 CFR 51.308(f)(2).118

d. Summary/Conclusion 

Regarding selection of sources for 

reasonable progress and four-factor 

analyses, West Virginia’s submittal cites 

the EPA’s 2019 Guidance in saying that 

‘‘that the selection of emission sources 

for analysis is the responsibility of the 

state.’’ 119 However, as part of this 

analysis, States are required to 

adequately justify their rationale and 

methodology for selecting sources and 

evaluating emissions controls. And in 

fact, West Virginia quotes the regional 

haze rule requirement at 40 CFR 

51.308(f)(2)(i) that ‘‘The State must 

include in its implementation plan a 

description of the criteria it used to 

determine which sources or groups of 

sources it evaluated and how the four 

factors were taken into consideration in 

selecting the measures for inclusion in 

its long-term strategy.’’ 120 Based on the 

information contained in the SIP 

submittal and the EPA’s review of the 

information, West Virginia has not 

satisfied this requirement. 

Therefore, West Virginia’s inadequate 

analysis of the four statutory factors was 

unreasonable. It was not reasonable for 

West Virginia to reject determining what 

measures, if any, are necessary to make 

reasonable progress toward the national 

goal, and thus need to be a part of the 

State’s long-term strategy. West Virginia 

failed to ‘‘evaluate and determine the 

emission reduction measures that are 

necessary to make reasonable progress 

by considering the costs of compliance, 

the time necessary for compliance, the 

energy and non-air quality 

environmental impacts of compliance, 

and the remaining useful life of any 

potentially affected anthropogenic 

source of visibility impairment,’’ as 

required by 40 CFR 51.308(f)(2)(i) and 

CAA section 169A(g)(1). The EPA 

expressed these issues and concerns 

during the public comment period of 

West Virginia’s draft SIP submittal.121

West Virginia’s submittal has not 

adequately addressed these deficiencies. 

Further, the national goal set by 

Congress outlines both the remedying of 

any existing visibility impairment, and 

also preventing any future visibility 

impairment. CAA section 169A(a). In 

the absence of any new measures, West 

Virginia also did not evaluate whether 

the continued implementation of the 

existing measures at any of the selected 

sources is necessary for reasonable 

progress. Specifically, West Virginia did 

not clearly explain that it intends to 

submit any of the measures for the six 

facilities discussed in section 7.8 of the 

SIP as existing measures necessary for 

reasonable progress, did not submit 

documentation for any particular 

existing measures, and does not request 

to include such measures in the SIP as 

part of its long-term strategy. West 

Virginia therefore did not provide a 

reasonable rationale to support a 

conclusion that for the second planning 

period, no new or existing measures are 

necessary for its long-term strategy, 

despite identifying numerous sources 

that impact visibility at nine Class I 

Areas. 

Providing a long-term strategy for 

making reasonable progress toward the 

national goal, including consideration of 

the four factors, is a statutory and 

regulatory requirement for every State. 

Although WV DEP selected six sources 

for reasonable progress analysis and 

conducted its own cost estimates for 

those six sources, and one facility 

conducted a four-factor analysis upon 

which WV DEP relied, West Virginia 

failed to conduct sufficiently robust and 

adequately supported analyses of the 

four statutory factors for any of the six 

sources. West Virginia neither assessed 

other potential new measures, nor did it 

conduct any analysis of existing 

measures or put forth such measures for 

inclusion in the SIP. Therefore West 

Virginia has not established that its 

second planning period SIP submission 

contains the emission limits, schedules 

of compliance, and other measures as 

may be necessary to make reasonable 

progress toward meeting the national 


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122See also CAA 169A(b)(2). 

123See Section 7.6.5, ‘‘Evaluation of Recent 

Emission Inventory Information’’ of WV DEP’s 

Regional Haze SIP Submittal for the 2nd Planning 

Period. 

124See also CAA 169A(b)(2)(B) (requiring regional 

haze SIPs to ‘‘contain such emission limits, 

schedules of compliance and other measures as may 

be necessary to make reasonable progress toward 

meeting the national goal, . . . including . . . a 

long-term . . . strategy for making reasonable 

progress[.]’’). 

visibility goal consistent with the CAA 

and the RHR.122

In conclusion, the SIP submission 

meets neither the regional haze 

requirements, nor requirements of the 

CAA. Specifically, as described in detail 

above, the SIP submission fails to satisfy 

the statutory requirements in CAA 

section 169A(b)(2)(B) to contain a longterm strategy for making reasonable 

progress; the CAA section 169A(g)(1) 

requirement to consider the four factors 

in determining reasonable progress; and 

the CAA section 169A(b)(2) requirement 

for the SIP to contain the emissions 

limits, schedules of compliance and 

other measures as may be necessary to 

make reasonable progress toward 

meeting the national goal. In addition, 

lack of robust evaluation of emissions 

measures considering the four factors, 

and related inadequate supporting 

documentation of the analyses and 

conclusions, results in West Virginia not 

meeting the regulatory requirements in 

40 CFR 51.308(f)(2) and (f)(2)(i) and (iii). 

Therefore, the EPA is proposing to 

disapprove West Virginia’s Regional 

Haze SIP submission. 

F. Additional Long-Term Strategy 

Requirements 

The consultation requirements of 40 

CFR 51.308(f)(2)(ii) provide that States 

must consult with other States that are 

reasonably anticipated to contribute to 

visibility impairment in a Class I Area 

to develop coordinated emission 

management strategies containing the 

emission reductions measures that are 

necessary to make reasonable progress. 

Section 51.308(f)(2)(ii)(A) and (B) 

require States to consider the emission 

reduction measures identified by other 

States as necessary for reasonable 

progress and to include agreed upon 

measures in their SIPs. Section 

51.308(f)(2)(ii)(C) speaks to what 

happens if States cannot agree on what 

measures are necessary to make 

reasonable progress. 

WV DEP included documentation of 

its calls, webinars, presentations, and 

other consultation with VISTAS and 

non-VISTAS States from December 2017 

to October 2020. West Virginia’s 

consultation documentation confirms 

that no States disagreed with or 

provided comment on West Virginia’s 

approach to its long-term strategy. 

Section 51.308(f)(2)(iii) also requires 

that the emissions information 

considered to determine the measures 

that are necessary to make reasonable 

progress include information on 

emissions for the most recent year for 

which the State has submitted triennial 

emissions data to the EPA (or a more 

recent year), with a twelve-month 

exemption period for newly submitted 

data. 

WV DEP included emissions 

information from the most recent year in 

its submittal; 2017, 2018, and 2019 

emissions information that had been 

previously reported to the EPA and 

compared these emissions to the 2028 

emissions used in its modeling.123 Table 

7–35 shows all West Virginia facilities 

with greater than 100 tpy SO2 emissions 

in 2017 and table 7–36 shows all West 

Virginia facilities with greater than 100 

tpy NOX emissions in 2017. 

As summarized in section IV of this 

document, the State provided emissions 

inventory information for individual 

sources for multiple years, including the 

most recent year for which the State 

submitted emissions data to the EPA in 

compliance with the triennial reporting 

requirements of the AERR. 

Regardless, as explained in the 

preceding sections, due to flaws and 

omissions in its source evaluations, 

four-factor analyses and the resulting 

control determinations, the EPA finds 

that West Virginia failed to submit to 

the EPA a long-term strategy that 

includes ‘‘the enforceable emissions 

limitations, compliance schedules, and 

other measures that are necessary to 

make reasonable progress’’ as required 

by 40 CFR 51.308(f)(2).124 Consequently, 

we find that West Virginia’s SIP does 

not satisfy the long-term strategy 

requirements of 40 CFR 51.308(f)(2). 

Therefore, the EPA proposes to 

disapprove all elements of West 

Virginia’s SIP submission as it relates to 

40 CFR 51.308(f)(2)’s long-term strategy 

requirements. 

G. Reasonable Progress Goals 

Section 51.308(f)(3) contains the 

requirements pertaining to RPGs for 

each Class I Area. Section 51.308(f)(3)(i) 

requires a State in which a Class I area 

is located to establish RPGs—one each 

for the clearest days and the most 

impaired days—reflecting the visibility 

conditions that will be achieved at the 

end of the planning period as a result of 

the emission limitations, compliance 

schedules, and other measures required 

under paragraph (f)(2) to be in a State’s 

long-term strategy, as well as the 

implementation of other CAA 

requirements. The long-term strategy, as 

reflected by the RPGs, must provide for 

an improvement in visibility on the 

most impaired days relative to the 

baseline period and ensure no 

degradation on the clearest days relative 

to the baseline period. Section 

51.308(f)(3)(ii) applies in circumstances 

in which a Class I area’s RPG for the 

most impaired days represents a slower 

rate of visibility improvement than the 

uniform rate of progress calculated 

under 40 CFR 51.308(f)(1)(vi). Under 40 

CFR 51.308(f)(3)(ii)(A), if the State in 

which a mandatory Class I area is 

located establishes an RPG for the most 

impaired days that provides for a slower 

rate of visibility improvement than the 

URP, the State must demonstrate that 

there are no additional emission 

reduction measures for anthropogenic 

sources or groups of sources in the State 

that would be reasonable to include in 

its long-term strategy. Section 

51.308(f)(3)(ii)(B) requires that if a State 

contains sources that are reasonably 

anticipated to contribute to visibility 

impairment in a Class I area in another 

State, and the RPG for the most 

impaired days in that Class I area is 

above the URP, the upwind State must 

provide the same demonstration. 

West Virginia established 2028 RPGs 

for both of its Class I areas in deciviews 

for the 20 percent clearest days and the 

20 percent most impaired in tables 8–1 

and 8–2 of its submittal, respectively, 

and both Class I areas are projected to 

remain below the URP based on VISTAS 

modeling. However, as outlined 

throughout this document, because 

West Virginia’s SIP submission did not 

meet the required statutory or regulatory 

requirements, the EPA is proposing to 

disapprove the SIP in its entirety, and 

is not proposing to approve these 

regulatory requirements. Additionally, 

per 40 CFR 51.308(f)(3)(iv), the EPA 

must evaluate the demonstrations the 

State developed pursuant to 40 CFR 

51.308(f)(2) to determine whether the 

State’s reasonable progress goals for 

visibility improvement provide for 

reasonable progress towards natural 

visibility conditions. As previously 

explained in section IV.E. of this 

document we are proposing to 

disapprove West Virginia’s long-term 

strategy for failing to meet the 

requirements of 40 CFR 51.308(f)(2). 

Therefore, we also propose to 

disapprove West Virginia’s reasonable 

progress goals under 40 CFR 51.308(f)(3) 

because compliance with that 


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125See CAA 169A(b)(2), 40 CFR 51.308(f)(2). 

126See Section 4, ‘‘Types of Emissions Impacting 

Visibility Impairment in West Virginia Class I 

Areas’’, Section 7.2.4, ‘‘EPA Inventories’’, and 

Section 13, ‘‘Progress Report’’ of WV DEP’s 

Regional Haze SIP Submittal for the 2nd Planning 

Period. 

requirement is dependent on 

compliance with 40 CFR 51.308(f)(2).125

H. Monitoring Strategy and Other 

Implementation Plan Requirements 

Section 51.308(f)(6) specifies that 

each comprehensive revision of a State’s 

Regional Haze SIP must contain or 

provide for certain elements, including 

monitoring strategies, emissions 

inventories, and any reporting, 

recordkeeping and other measures 

needed to assess and report on 

visibility. A main requirement of this 

section is for States with Class I Areas 

to submit monitoring strategies for 

measuring, characterizing, and reporting 

on visibility impairment. Section 

51.308(f)(6)(ii) requires SIPs to provide 

for procedures by which monitoring 

data and other information are used in 

determining the contribution of 

emissions from within the State to 

Regional Haze visibility impairment at 

mandatory Class I Federal Areas both 

within and outside the State. Section 

51.308(f)(6)(iii) requires SIPs to provide 

procedures by which monitoring data 

and other information are used in 

determining the contribution of 

emissions from within the State to 

Regional Haze visibility impairment at 

mandatory Class I Federal Areas in 

other States. Section 51.308(f)(6)(iv) 

requires the SIP to provide for the 

reporting of all visibility monitoring 

data to the Administrator at least 

annually for each Class I area in the 

State. Section 51.308(f)(6)(v) requires 

SIPs to provide for a statewide 

inventory of emissions of pollutants that 

are reasonably anticipated to cause or 

contribute to visibility impairment, 

including emissions for the most recent 

year for which data are available. 

Section 51.308(f)(6)(v) also requires 

States to include estimates of future 

projected emissions and include a 

commitment to update the inventory 

periodically. 

With respect to 40 CFR 51.308(f)(6)(i), 

WV DEP stated that the existing 

IMPROVE monitors for the State’s Class 

I areas are sufficient for the purposes of 

this SIP revision. With respect to 40 

CFR 51.308(f)(6)(ii), WV DEP stated that 

it will use data from these IMPROVE 

monitors for future haze plans and 

progress reports. 40 CFR 51.308(f)(6)(iii) 

does not apply to West Virginia, as this 

provision only applies to States with no 

Class I areas. With respect to 40 CFR 

51.308(f)(6)(iv), the NPS manages and 

oversees the IMPROVE monitoring 

network and reviews, verifies, and 

validates IMPROVE data before its 

submission to the EPA’s Air Quality 

System (AQS). With respect to 40 CFR 

51.308(f)(6)(v), WV DEP provided a 

baseline emissions inventories, current 

emissions data, and 2028 future 

emissions projections for visibilityimpairing pollutants for source 

categories and specific point sources, 

and committed to update the inventory 

periodically.126 With respect to 40 CFR 

51.308(f)(6)(vi), West Virginia affirmed 

that there are no elements, including 

reporting, recordkeeping, or other 

measures, necessary to address and 

report on visibility for West Virginia’s 

Class I areas or Class I areas outside the 

State that are affected by sources in 

West Virginia. 

However, as outlined throughout this 

document, because West Virginia’s SIP 

submission did not meet the required 

statutory or regulatory requirements, the 

EPA is proposing to disapprove the SIP 

in its entirety and is not proposing to 

approve these regulatory requirements. 

I. Requirements for Periodic Reports 

Describing Progress Towards the 

Reasonable Progress Goals 

Section 51.308(f)(5) requires that 

periodic comprehensive revisions of 

States’ Regional Haze plans also address 

the progress report requirements of 40 

CFR 51.308(g)(1) through (5). The 

purpose of these requirements is to 

evaluate progress towards the applicable 

RPGs for each Class I Area within the 

State and each Class I Area outside the 

State that may be affected by emissions 

from within that State. Sections 

51.308(g)(1) and (2) apply to all States 

and require a description of the status 

of implementation of all measures 

included in a State’s first 

implementation period Regional Haze 

plan and a summary of the emission 

reductions achieved through 

implementation of those measures. 

Section 51.308(g)(3) applies only to 

States with Class I Areas within their 

borders and requires such States to 

assess current visibility conditions, 

changes in visibility relative to baseline 

(2000–2004) visibility conditions, and 

changes in visibility conditions relative 

to the period addressed in the first 

implementation period progress report. 

Section 51.308(g)(4) applies to all 

States and requires an analysis tracking 

changes in emissions of pollutants 

contributing to visibility impairment 

from all sources and sectors since the 

period addressed by the first 

implementation period progress report. 

This provision further specifies the year 

or years through which the analysis 

must extend depending on the type of 

source and the platform through which 

its emission information is reported. 

Finally, 40 CFR 51.308(g)(5), which also 

applies to all States, requires an 

assessment of any significant changes in 

anthropogenic emissions within or 

outside the State that have occurred 

since the period addressed by the first 

implementation period progress report, 

including whether such changes were 

anticipated and whether they have 

limited or impeded expected progress 

towards reducing emissions and 

improving visibility. 

With respect to the 40 

CFR 51.308(g)(1) through (5) 

requirements, WV DEP included a 

description of the status of the 

implementation of all measures 

included in West Virginia’s first 

implementation period Regional Haze 

Plan, a summary of the emissions 

reductions achieved from these 

measures, an analysis tracking changes 

in emissions, and an assessment of 

significant changes in emissions. 

However, as outlined throughout this 

document, because West Virginia’s SIP 

submission did not meet the required 

statutory or regulatory requirements, the 

EPA is proposing to disapprove the SIP 

in its entirety and is not proposing to 

approve these regulatory requirements. 

J. Requirements for State and Federal 

Land Manager Coordination 

Section 169A(d) of the CAA requires 

States to consult with FLMs before 

holding the public hearing on a 

proposed Regional Haze SIP, and to 

include ‘‘a summary of the FLMs’ 

conclusions and recommendations in 

the notice to the public.’’ 

Section 51.308(i)(2)’s FLM 

consultation provision requires a State 

to provide FLMs with an opportunity 

for consultation that is early enough in 

the State’s policy analyses of its 

emission reduction obligation so that 

information and recommendations 

provided by the FLMs can meaningfully 

inform the State’s decisions on its longterm strategy. If the consultation has 

taken place at least 120 days before a 

public hearing or public comment 

period, the opportunity for consultation 

will be deemed early enough. 

Regardless, the opportunity for 

consultation must be provided at least 

sixty days before a public hearing or 

public comment period at the State 

level. Section 51.308(i)(2) also provides 

two substantive topics on which FLMs 

must be provided an opportunity to 

discuss with States: assessment of 

visibility impairment in any Class I Area 


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127Appendix H–2 ‘‘Federal Land Manager 

Comments’’ in WV DEP’s Regional Haze SIP 

Submittal for the 2nd Planning Period. 

128 In addition, if the EPA finalizes our proposed 

disapproval of WV DEP’s SIP submittal, the State 

(or the EPA in the potential case of a FIP) will be 

required to again complete the FLM consultation 

requirements under 40 CFR 51.308(i). 

and recommendations on the 

development and implementation of 

strategies to address visibility 

impairment. Section 51.308(i)(3) 

requires States, in developing their 

implementation plans, to include a 

description of how they addressed 

FLMs’ comments. 

WV DEP included records of its 

consultation with various FLMs. The 

NPS submitted comments to WV DEP 

on October 19, 2021, the USFS 

submitted comments on October 26, 

2021, and the FWS did not submit 

comments. WV DEP included the FLM 

comments and its responses in its 

submittal.127

While WV DEP did take 

administrative steps to conduct 

consultation, if the EPA finalizes the 

disapproval of the SIP, in the process of 

correcting the deficiencies outlined 

above with respect to the RHR and 

statutory requirements, the State (or the 

EPA in the case of an eventual FIP) will 

again be required to satisfy the FLM 

consultation requirements under 40 

CFR 51.308(i)(2).128 However, as 

discussed throughout this document, 

because WV DEP’s SIP submission did 

not meet the required statutory or 

regulatory requirements, the EPA is 

proposing to disapprove the SIP in its 

entirety, and is not proposing to 

approve these regulatory requirements. 

V. Environmental Justice 

WV DEP included Appendix I, 

‘‘Environmental Justice,’’ to its SIP 

submittal. Appendix I consists entirely 

of a 2021 Informal Resolution between 

WV DEP and the EPA resolving a claim 

under Title VI of the Civil Rights Act of 

1964 related to alleged discrimination 

against African American descendants 

of persons buried in the Boyd Carter 

Memorial Cemetery. Appendix I does 

not contain any analysis or evaluation of 

impacts of this SIP on communities 

with environmental justice concerns. 

Neither the CAA nor the applicable 

implementing regulations either 

prohibit or require such an evaluation. 

The EPA did not conduct an 

environmental justice (EJ) screening 

analysis for this SIP submittal. 

VI. Proposed Action 

The EPA is proposing to disapprove 

the WV DEP SIP submission relating to 

Regional Haze for the second planning 

period received on August 12, 2022, 

because the State’s SIP submission fails 

to meet both the regulatory 

requirements of the Regional Haze Rule 

and the statutory requirements of the 

Clean Air Act. Specifically, because WV 

DEP failed to conduct the proper 

analyses to determine what measures 

are necessary for reasonable progress 

and did not adequately consider the 

four statutory factors, thereby not 

including a sufficiently robust and 

adequately justified long-term strategy 

that includes measures necessary for 

reasonable progress in its second 

planning period SIP submission. West 

Virginia’s SIP submission does not 

contain the emission limits, schedules 

of compliance, and other measures as 

may be necessary to make reasonable 

progress toward meeting the national 

visibility goal. Therefore, the SIP 

submission does not meet the regional 

haze requirements, nor requirements of 

the CAA. Specifically, as described in 

detail in this NPRM, the SIP submission 

does not meet the statutory 

requirements in CAA section 

169A(b)(2)(B) to contain a long-term 

strategy for making reasonable progress; 

the CAA section 169A(g)(1) requirement 

to consider the four factors in 

determining reasonable progress; and 

the CAA section 169A(b)(2) requirement 

for the SIP to contain the emissions 

limits, schedules of compliance and 

other measures as may be necessary to 

make reasonable progress toward 

meeting the national goal. In addition, 

the insufficiently robust and 

inadequately justified source selection, 

evaluation of emissions measures 

considering the four factors, related 

inadequate supporting documentation, 

and the failure to discuss or adequately 

evaluate existing measures in the 

absence of any new measures results in 

the WV DEP SIP submission not 

meeting the regulatory requirements in 

40 CFR 51.308(f)(2). 

The EPA is not proposing a FIP at this 

time. If the EPA finalizes the 

disapproval, that will start a two-year 

clock for the EPA to propose and 

finalize a FIP. We are processing this as 

a proposed action because we are 

soliciting comments on this proposed 

action. Disapproval does not start a 

mandatory sanctions clock for West 

Virginia. Final rule will occur after 

consideration of any comments. 

VII. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to approve State choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

proposes to disapprove State law as not 

meeting Federal requirements and does 

not impose additional requirements. For 

that reason, this proposed action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); and 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

• Executive Order 12898 (Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 


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1EPA notes that while the July 27, 2016, 

submittal was signed and dated by SC DHEC on 

July 25, 2016, it was received via EPA’s SPeCS for 

SIPs system on July 27, 2016. 

2On July 1, 2024, SC DHEC was restructured into 

a health agency, the Department of Public Health, 

and an environmental agency, the Department of 

Environmental Services (DES). In a letter dated June 

20, 2024, South Carolina represented to EPA that 

all the functions, powers, and duties of the 

environmental divisions, offices, and programs of 

DHEC, including the authority to administer and 

enforce State implementation plans, are retained 

and continued in full force and effect under DES. 

This letter is in the docket for this proposed 

rulemaking. Throughout this proposal, the terms, 

‘‘Department’’, ‘‘South Carolina Department of 

Health and Environmental Services’’, ‘‘SCDHEC’’, 

‘‘South Carolina Department of Environmental 

Services’’, and ‘‘SCDES’’ are all interchangeable. 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ West Virginia did not 

evaluate EJ considerations as part of its 

SIP submittal; the CAA and applicable 

implementing regulations neither 

prohibit nor require such an evaluation. 

The EPA did not perform an EJ analysis 

and did not consider EJ in this action. 

Due to the nature of the action being 

taken here, this action is expected to 

have a neutral impact on the air quality 

of the affected area. Consideration of EJ 

is not required as part of this action, and 

there is no information in the record 

inconsistent with the stated goal of E.O. 

12898 of achieving environmental 

justice for people of color, low-income 

populations, and Indigenous peoples. 

• In addition, this action does not 

have tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and the EPA notes 

that it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. Thus, Executive Order 13175 

does not apply to this action. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Adam Ortiz, 

Regional Administrator, Region III. 

[FR Doc. 2025–01101 Filed 1–17–25; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2024–0241; FRL–12545– 

01–R4] 

Air Plan Partial Approval and Partial 

Disapproval; South Carolina; Minor 

Source Permit Program Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to partially 

approve and partially disapprove 

changes to South Carolina’s State 

Implementation Plan (SIP) to revise 

regulations prescribing minor source 

permit program requirements, including 

minor new source review (NSR) 

requirements as submitted by the State 

of South Carolina, through the South 

Carolina Department of Health and 

Environmental Control (SC DHEC), on 

the following dates: October 1, 2007; 

July 18, 2011; June 17, 2013; August 8, 

2014; January 20, 2016; July 27, 2016; 

and April 24, 2020. This action is being 

proposed pursuant to the Clean Air Act 

(CAA or Act). 

DATES: Comments must be received on 

or before February 20, 2025. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2024–0241 at regulations.gov. 

Follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from regulations.gov. EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit https://

www.epa.gov/dockets/commenting-epadockets. 

FOR FURTHER INFORMATION CONTACT: 

Weston Freund, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air and 

Radiation Division, U.S. Environmental 

Protection Agency, Region 4, 61 Forsyth 

Street SW, Atlanta, Georgia 30303–8960. 

The telephone number is (404) 562– 

8773. Mr. Freund can also be reached 

via electronic mail at freund.weston@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What action is EPA proposing? 

II. Analysis of the State’s Submittals 

A. Overview and Analysis of Changes to 

Regulation 61–62.1, Section II, Permit 

Requirements 

1. Subsection II(B)—Exemptions From the 

Requirement To Obtain a Construction 

Permit 

a. Paragraph II(B)(2) 

i. Subparagraph II(B)(2)(b) 

ii. Subparagraph II(B)(2)(f) 

iii. Subparagraph II(B)(2)(h) 

b. Paragraph II(B)(3) 

c. Paragraph II(B)(5) 

d. Paragraph II(B)(6) 

e. Paragraph II(B)(7) 

2. Subsection II(C)—Construction Permit 

Applications 

3. Subsection II(D)—General Construction 

Permits 

4. Subsection II(E)—Synthetic Minor 

Construction Permits 

a. Subparagraphs II(E)(4)(a)–(E)(4)(d) 

b. Subparagraph II(E)(4)(c) 

c. Subparagraph II(E)(4)(e) 

d. Subparagraph II(E)(4)(g) 

5. Subsection II(F)—Operating Permits 

a. Paragraphs II(F)(2) and (F)(3) 

b. Paragraph II(F)(5) 

6. Subsection II(G)—Conditional Major 

Operating Permits 

a. Subparagraph II(G)(2)(d) 

b. Subparagraph II(G)(7)(c) 

c. Subparagraph II(G)(7)(g) 

7. Subsection II(H)—Operating Permit 

Renewal Requests 

8. Subsection II(I)—Registration Permits 

a. Subparagraph II(I)(2)(a)(ii) 

b. Subparagraph II(I)(2)(e) 

9. Subsection II(K)—Exceptions 

10. Subsection II(N)—Public Participation 

Procedures 

III. Incorporation by Reference 

IV. Proposed Action 

V. Statutory and Executive Order Reviews 

I. What action is EPA proposing? 

On October 1, 2007; July 18, 2011; 

June 17, 2013; August 8, 2014; January 

20, 2016; July 27, 2016; 1 September 5, 

2017; April 24, 2020; and February 4, 

2022, SC DHEC2 submitted SIP 

revisions to EPA for approval that 

include changes to South Carolina’s 

minor source permitting regulations to 

clarify and streamline the State’s 

federally approved minor 

preconstruction and minor operating 

permitting program. This federally 

approved program requires stationary 

sources of air pollutants planning to 

construct or modify to first obtain a 

construction permit and to obtain and 

maintain operating permits in 

accordance with the South Carolina 

Code of Regulations Annotated (S.C. 

Code Ann. Regs. hereinafter 

‘‘Regulation’’) 61–62.1, Section II, 


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