1. www.hunton.com Class I Air Quality Related Values Kevin J. Finto Hunton & Williams APPA Energy and Air Quality Task Force Washington, D.C. March 10, 2005

2. www.hunton.com The Problem Obtain A PSD permit must To obtain an permit, must show compliance with increment and protection of air quality related values in Class I areas. Class I areas are National Parks, Wilderness Areas, Monuments and Wildlife Refuge described in 40 CFR 52.21 (e) and listed in FLAG. Air quality related values include visibility, soils and vegetation and endangered species

3. www.hunton.com The Problem Obtain A PSD permit must Federal Land Manager has primary responsibility for protection of Class I areas States and EPA have to coordinate with FLM but have final decision making role on Class I Areas FLM on one hand and States/EPA on the other use different criteria and have different perspectives Result is confusion, inefficiency and delay

4. www.hunton.com Obtain A PSD permit must Applicant must show emissions will not cause or contribute to Class I increment using modeling and objective criteria. Modeling for ISC3C if Class I area is within 50 km and CALPUFF if Class I area is > 50 km distant. See 40 CFR Part 51 App W. Visibility impairment is modeled as light extinction Background information

5. www.hunton.com Obtain A PSD permit must Class I areas are located throughout the United States and the FLM takes a liberal view of what might affect them. Background information

6. www.hunton.com Obtain A PSD permit must State/EPA must send application to FLM if project emissions may effect a Class I area FLM may comment on project including providing a visibility analysis State/EPA has to consider FLM comments; if State/EPA disagrees, have to explain why in public notice on draft. 1 - Buffer Map of PSD Class I Areas What the Regulations say: 40 CFR 52.21 (p)

7. www.hunton.com Obtain A PSD permit must State/EPA has to send draft permit to FLM who gets to comment with the public; FLM can make a finding of adverse impact. If modeling shows the project will not cause or contribute to a violation of Class I increment, burden is on FLM to demonstrate adverse impact to AQRVs including visibility. What the Regulations say: 40 CFR 52.21 (p)

8. www.hunton.com Obtain A PSD permit must If State/EPA concurs with FLM, it shall not issue the permit. State/EPA may issue the permit over FLM adverse finding if State/EPA determines that project emissions will not result in an adverse impact to AQRVs including visibility. FLM can appeal such a determination as any other citizen. 1 - Buffer Map of PSD Class I Areas What the Regulations say: 40 CFR 52.21 (p)

9. www.hunton.com Obtain A PSD permit must “Adverse Impact to Visibility” Visibility impairment which interferes with the management, protection, preservation or enjoyment of the visitor’s visual experience of the Federal Class I area… Visibility impairment means any humanly perceptible change in visibility (light extinction, visual range, contrast, coloration) from that which would have existed under natural conditions. What the Regulations say: 40 CFR 52.21(b)(29)

10. www.hunton.com Obtain A PSD permit must …This determination must be made on a case-by-case basis, taking into account the geographic extent, intensity, duration, frequency and time of visibility impairment, and how these factors correlate with (1) times of visitor use of the Federal Class I area, and 2) the frequency and timing of natural conditions that reduce visibility. What the Regulations say: 40 CFR 52.21(b)(29)

11. www.hunton.com Obtain A PSD permit must In a nutshell, the determination is Case-by-case; considers frequency, extent and intensity of visibility impairment considers geographic extent of vista considers timing of impairment relative to visitation considers natural factors that impair visibility((e.g. weather). What the Regulations say

12. www.hunton.com Obtain A PSD permit must FLAG = Federal Land Managers Air Quality Related Values Workgroup FLM is the Secretary of Interior (Deputy Secretary for Fish and Wildlife and Parks) and Secretary of Agriculture Implementing Agencies are U.S Forest Service, U.S Fish and Wildlife Service and National Park Service. Agencies developed guidance to promote consistency and manage expectations. What is FLAG?

13. www.hunton.com Obtain A PSD permit must FLAG provides guidance on visibility modeling acid deposition ozone modeling Best Available Control Technology What FLAG says.

14. www.hunton.com Obtain A PSD permit must As to visibility See flow chart on page vi If single source will contribute to impairment > 10% extinction FLM is likely to object If source contributes > 0.4% to cumulative impact > 10 % extinction FLM likely to object If single source contributes < 5% extinction FLM is not likely to object. What FLAG says.

15. www.hunton.com Obtain A PSD permit must If single source contributes 10% extinction FLM is not likely to object. FLAG recommends very conservative assumptions in CALPUFF modeling FLAG uses a very pristine definition of natural background. What FLAG says.

16. www.hunton.com Obtain A PSD permit must Rigid application of FLAG is not case- by case (and is unlawful also because it uses guidance as a rule). Site Specific refinements in modeling make the predictions more accurate. Meteorological data Ammonia Relative humidity Background visibility Differences between FLAG and Regulations

17. www.hunton.com Obtain A PSD permit must Regulations allow consideration of weather events that are reflected in modeling parameters (fog, rain). Regulations allow for comparison of time of visibility extinction to visitation times (e.g. modeling may show low visibility at night due to high relative humidity but park is closed then anyway). Although light extinction may be based on 100 km vistas, park may not have vista more than a few kilometers Differences between FLAG and Regulations

18. www.hunton.com Obtain A PSD permit must Science is still developing on what level of light extinction is detectable. FLAG threshold of 5% is conservative. More recent science suggests 20% might be more reasonable. There is no special role for FLMs in BACT analysis Difficulty with deposition analysis, ozone modeling and endangered species ( a whole other symposium). Differences between FLAG and Regulations

19. www.hunton.com Obtain A PSD permit must Executive Oversight. (letter in Round- up) Agency Rulemaking Congressional Oversight/ Legislation (Clear Skies) Judicial decisions Fixes