1. Regional Haze Regulatory Developments
Tim Smith, USEPA/OAQPS
WESTAR Fall Conference
September 17, 2002

2. Discussion Topics May 24, 2002 American Corn Growers decision
Why Court Case does not affect 309
Status of Annex rulemaking
WRAP questions (1/18/02 letter to EPA)
EPA rulemaking options regarding BART in 308
Status of EPA guidance efforts
BART guidelines
Natural conditions
Tracking progress
Reasonable progress factors

3. May 24 Decision by DC Circuit
4 Issues:
BASIC STRUCTURE.
Upheld goal of natural conditions.
Found no conflict between “no degradation” on clean days and PSD.
BART. Vacated. (2 to 1 decision)
Concerns over state authority.
Concerns over cumulative approach to applicability, impacts assessment.

4. May 24 Decision by DC circuit
Issues (cont)
SCHEDULE.
Expressed concerns that “committal SIP” concept violates plain language of TEA-21. Remanded.
REASONABLE PROGRESS.
Did not rule on contention that rule inadequate.
Noted that EPA may want to reconsider in light of BART decision.

5. Current status Re-hearing
EPA filed petition for re-hearing July 8
We should know soon whether entire 8-judge panel will re-hear the case
If granted, probably another 4-6 month process.
EPA is actively pursuing options in case re-hearing not granted
Your ideas welcome!!

6. Court decision does not affect Implementation of 309
EPA letters to WRAP/IOC co-chairs:
June 7, General position.
July 22, Detailed explanation of rationale.
July 31 letter to NM responding to related questions raised by NM stakeholders.

7. Rationale for EPA’s position
The Annex program for milestones and backstop trading program is not a “BART provision” addressed by the Court case
Nothing in case prevents States from choosing alternative to BART under 308(e)(2)
Program state-initiated—grew from GCVTC and WGA

8. July 31 Letter to NM Among issues addressed:
Scope of court’s remand was 308(e)(1) – it did not, as some have asserted, “remand all of section 308 and 309.”
Issue of publishing final annex rule and 308 changes at same time.

9. Status of EPA rulemaking on the Annex
Proposed May 6, 2002 (67 FR 30418)
Public hearing June 4
Comment period closed July 5. (13 comment letters)
Status of final rule:
Approaching WG 1st draft of preamble and rule
Only a few issues remain on how to treat in rule
Hope to finalize by early 2003.

10. WRAP letter January 18, 2002
19 questions related to implementation of the haze rule
General topics:10
Guidance documents (#1)
SIP timing and coordination (# 2-8)
Trans-boundary impacts (# 9-13)
Interpretation of certain provision of 309 (# 14-16)
General haze rule issues (#17-19)

11. Status of EPA response to WRAP letter
We have formally responded to only a few of the questions
#15– March 2002 letter to AZ: concurring with position that transportation conformity does not apply to haze SIPs
Some tribal issues addressed in May 6 FR notice

12. Jan 2002 WRAP questions (cont)
Some of SIP deadline/”committal SIP” issues may have been overtaken by more recent events
EPA has indicated desire for legislative change to 308 schedule, harmonizing PM, haze and O3 SIPs.

13. Jan 2002 WRAP questions (cont)
#2. What is EPA’s expectations on PM monitoring/designations?
July 2002: Complete data available for
Fall 2002: Guidance on NA boundaries
July 2003: Complete data available for
States: up to 1 year to recommend designations to EPA
EPA has up to 1 year to designate areas
All designations complete by Dec. 2005
Possible legislative change to Nov. 2004

14. Jan 2002 WRAP questions (cont)
Some have easy answers:
#10: EPA concurs that SIP deadline is related to designations for submitting State, rather than deadline for outside States
#4: EPA agrees with desirability to harmonize PM2.5 and regional haze base years.
#19: By “enforceable” we mean emission limits and measures, not modeling/inventory assumptions, progress goals, etc.

15. Jan 2002 WRAP questions (cont)
For some programs required under 309 (mobile sources, fire emissions, renewable energy efficiency, road dust), states and tribes may not have all statutory and regulatory authority needed for implementation by December 31, 2003.
WRAP:
needs discussion of mechanisms to address this
binding, enforceable commitments in SIPs to develop regulations by dates certain, parallel processing of SIP elements, and other strategies.
Lets discuss specific issues. It would appear that flexibility exists in 309 language.

16. Jan 2002 WRAP questions (cont)
Bottom line on response to January letter:
EPA willing to act quickly on issues which remain high priority.
For some, events may have overtaken.
If some have slipped through cracks, lets work to get them addressed.

17. Options for responding to Court issues on 308(e)(1) BART requirement
Individualized visibility contribution for:
Which sources must do a BART review?
Doing the BART analysis
“Reasonable progress” factors
750 MW power plants
Overall thought: this is will likely be more complicated than what we originally envisioned

18. “Reasonable progress” factors
Sierra Club: EPA didn’t provide enough “criteria for measuring reasonable progress”
DC circuit: EPA may want to reconsider in light of BART findings
Possible option: more detailed guidance, such as “reasonable cost” criteria

19. 750 MW power plants
CAA provides authority for more detailed guidance for >750 (we interpret as sum of capacity between 62 and 77)
Considering detailed guidelines on control levels for 750 MW
In West, not many plants in time window have capacity >750

20. 750 MW power plants
In WRAP region, tentative list: (any corrections to this?)
CO: Craig
Navajo: Navajo, Four Corners
NV: Mohave
UT: Huntington
WA: Centralia
WY: Jim Bridger

21. Process for revision of BART provisions
Assuming DC circuit case stands, EPA needs:
Re-proposal of 308(e)(1)
Re-proposal of BART guidelines with more detail on modeling issues
Proposal would likely include any further guidance/criteria we develop for reasonable progress
Might be opportunity to amend definitions to streamline BART applicability per comments on July 01 BART proposal
We envision stakeholder input to this

22. Schedule for revision of BART provisions
Re-proposal: June 2003
Final rule: July 2004
Should still be timely for 308 SIP development

23. EPA guidelines documents
"Guidance for Estimating Natural Visibility Conditions Under the Regional Haze Rule“
"Guidance for Tracking Progress Under the Regional Haze Rule"
Contact: Neil Frank, OAQPS
Status: Nearing completion by about November. Comments reviewed and discussed, peer review complete.
Some comments required technical work. E.g., recalculating f(RH) for high-humidity days.

24. Coordination of SIP reviews among regional offices
Issues have been raised on EPA SIP reviews/coordination e.g. WESTAR letter.
EPA recognizes need for coordination.
Internal discussions initiated.
Suggestion: conference call within next month or two.