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EPA Issues Regional Haze Federal Implementation Plans for Indiana and Kentucky


The Regional Haze Rule is designed to improve visibility in national parks and wilderness areas to natural conditions and requires states to determine the best available retrofit technology (BART) for sources built between 1962 and 1977 that may be anticipated to cause or contribute to visibility issues.  The rule gives states the flexibility to adopt an emissions trading program or other alternative program rather than requiring source specific BART controls if the alternative provides greater reasonable progress towards improving visibility than BART.

In 2005, EPA demonstrated that its Clean Air Interstate Rule (CAIR) would achieve greater reasonable progress toward the national visibility goal than would BART.  Thereafter, a number of states, including Kentucky and Indiana, relied on the CAIR cap and trade programs as an alternative to BART for electric generating utility emissions of sulfur dioxide and nitrogen oxides in designing their regional haze state implementation plans.  In 2008, however, CAIR was remanded to EPA by the D.C. Circuit Court of Appeals.  The court left CAIR in place until such time as EPA could replace CAIR with a rule that corrected deficiencies found by the court.  On August 8, 2011, EPA promulgated the Cross State Air Pollution Rule (Transport Rule) to replace CAIR.  The Transport Rule requires 28 states in the eastern half of the United States, including Indiana and Kentucky, to reduce electric generating unit sulfur dioxide and nitrogen oxide emissions that cross state lines and contribute to ground level ozone and fine particulate pollution in other states.  On December 30, 2011, the D.C. Circuit Court of Appeals stayed the Transport Rule and instructed EPA to continue to administer CAIR pending the outcome of the court’s decision on the legal challenge to the Transport Rule.

Despite the stay of the Transport Rule, on June 7, 2012 EPA finalized its finding that the provisions of the Transport Rule achieve greater reasonable progress towards the national goal of achieving natural visibility conditions than do BART requirements.  Additionally, EPA finalized a limited disapproval of the regional haze state implementation plan for Indiana and other states that relied on requirements of CAIR to satisfy regional haze requirements.  EPA had previously finalized a limited disapproval of the Kentucky state implementation plan for regional haze due to its reliance on CAIR.  The June 7, 2012 final rulemaking also promulgated federal implementation plans for Indiana, Kentucky and other states to replace reliance on CAIR with reliance on the Transport Rule in the regional haze state implementation plans for those states.  According to EPA, these states do not have to take any further action on their regional haze state implementation plans until such plans are due under the Regional Haze Rule in 2018.  States were encouraged to submit a revision to their regional haze state implementation plan to incorporate the requirements of the Transport Rule such that EPA can withdraw the federal implementation plan.

EPA stated that the stay imposed by the D.C. Circuit pending review of the Transport Rule did not undermine the conclusion that the Transport Rule will have a greater overall positive impact on visibility than BART.  EPA also found that it was not appropriate to await the outcome of the D.C. Circuit’s decision on the Transport Rule before moving forward with the regional haze program as EPA believes the Transport Rule has a strong legal basis.  However, EPA did note that it may be obliged to revisit the original haze plans that rely on the Transport Rule if the rule is not upheld or if it is remanded and subsequently revised.  The D.C. Circuit Court of Appeals heard oral arguments on the Transport Rule on April 13 and thus the case has not yet been decided.  As the fate of the Transport Rule is uncertain, questions arise as to whether states and industry would have to conduct case-by-case BART determinations should the Transport Rule be invalidated.

To view a complete PDF of the Second Quarter 2012 issue of the Air Quality Letter, click HERE.

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