VIII.
E.
Compliance
Through
the
EGU
Model
Rules
Is
`
Better
than
Bart'

Commenters:
The
Adirondack
Council,
OAR­
2003­
0053­
1699;
Georgia
Department
of
Natural
Resources,
Environmental
Protection
Division,
Air
Protection
Branch,
OAR­
2003­
0053­
0698;
Michigan
Department
of
Environmental
Quality,
Air
Quality
Division,
OAR­
2003­
0053­
1180;
Missouri
Department
of
Natural
Resources,
Air
Pollution
Control
Program,
OAR­
2003­
0053­
1251;
Alabama
Department
of
Environmental
Management,
Air
Division,
OAR­
2003­
0053­
0680.

Comment:
Several
commenters
believed
that
the
Better­
than­
BART
"
debate"
belongs
in
the
regional
haze
rule
making
process
and
not
within
the
CAIR,
or
felt
that
it
was
premature
to
make
that
a
decision
at
this
time
on
whether
CAIR
may
substitute
for
BART.

Response:
The
EPA
agrees
that
the
final
determination
on
whether
CAIR
may
substitute
for
BART
in
the
CAIR­
affected
region
cannot
be
made
until
the
BART
guidelines
for
EGUs
and
the
criteria
for
BART­
alternative
programs
are
final.
Information
and
analysis
regarding
EPA's
present
understanding
of
this
issue
is
presented
in
the
CAIR
preamble
and
supporting
documentation
in
order
to
provide
the
public
with
as
much
information
as
possible
regarding
the
potential
implications
of
the
CAIR.

Commenters:
Clean
Air
Task
Force,
et
al.,
OAR­
2003­
0053­
0742,
OAR­
2003­
0053­
1762;
Environmental
Defense,
OAR­
2003­
0053­
0786,
OAR­
2003­
0053­
1776;
Southern
Environmental
Law
Center,
OAR­
2003­
0053­
1224,
OAR­
2003­
0053­
1224;
Wild
South,
OAR­
2003­
0053­
1091;
Sierra
Club,
OAR­
2003­
0053­
1204;
American
Petroleum
Institute
(
API),
OAR­
2003­
0053­
1829;
Northeast
States
for
Coordinated
Air
Use
Management
(
NESCAUM),
OAR­
2003­
0053­
1674;
STAPPA/
ALAPCO,
OAR­
2003­
0053­
1725.

Comment:
Several
commenters
assert
the
policy
of
allowing
CAIR
to
satisfy
BART
requirements
is
arbitrary
or
otherwise
not
in
accordance
with
the
law.
Such
arguments
are
based
on
several
related
grounds.
Commenters
assert
that
because
CAIR
and
BART
arise
from
independent
provisions
of
the
CAA,
and
because
Congress
specifically
identified
26
source
categories
for
regulation
under
BART,
EPA
has
no
authority
to
supplant
BART
requirements
with
other
requirements.
Some
commenters
further
elaborate
or
qualify
that
assertion
by
arguing
that
a
BART
alternative
program
could
be
legal
if
the
emissions
reductions
required
of
non
BART­
eligible
sources
were
based
on
visibility
considerations
(
rather
than
other
criteria
such
as
NAAQS
attainment).
If
BART­
eligible
sources
may
avoid
installing
BART
based
on
reductions
otherwise
required
by
law,
BART
is
rendered
largely
superfluous,
they
argue.
Commenters
also
point
to
Regional
Haze
Rule
section
308(
e)(
2),
in
support
of
the
idea
that
reductions
from
other
programs
such
as
Title
IV
and
NO
x
SIP
call
must
be
achieved
in
addition
to,
not
as
substitute,
for
BART.
These
commenters
also
cite
Sierra
Club
v.
EPA,
294
F.
3d
155
(
DC
Cir.
2002),
for
the
proposition
that
EPA
has
no
authority
to
alter
or
ignore
programs
mandated
by
Congress
in
the
CAA.
Response:
The
policy
of
allowing
another
program
to
substitute
for
BART
is
not
an
illegal
substitution
of
the
Agency's
judgment
for
that
of
Congress,
but
rather
is
based
on
a
reasonable
interpretation
of
the
ambiguous
language
of
CAA
§
169A(
b)(
2).
This
section
provides
that
EPA
must
require
SIPs
to
contain
certain
measures
"
as
may
be
necessary
to
make
reasonable
progress
toward
meeting
the
national
goal
.
.
.
including
 
"
among
other
things,
a
requirement
that
BART­
eligible
sources
install
BART.
See
42
USC
7491(
b)(
2).
The
EPA
has
interpreted
this
as
meaning
that
BART
is
required
only
"
as
may
be
necessary
to
make
reasonable
progress."
A
logical
corollary
is
that
if
an
alternative
strategy
covering
a
given
source
or
source
sector
makes
greater
progress
than
BART,
then
BART
is
not
necessary
for
that
source
or
sources.

In
Central
Arizona
Water
Conservation
District
v.
EPA,
990
F.
2d
1531,
(
1993),
the
Ninth
Circuit
applied
the
two­
step
Chevron
test
(
Chevron,
U.
S.
A.,
Inc.
v.
NRDC,
467
U.
S.
837,
842­
45
(
1984)
and
found
that
the
statutory
language
was
ambiguous
and
that
EPA's
interpretation
was
reasonable.
990
F.
2d
at
1543.
The
court
therefore
agreed
that
the
statute
provided
EPA
with
"
discretion
to
adopt
implementation
plan
provisions
other
than
those
provided
by
BART
analyses
in
situations
where
the
agency
reasonably
concludes
that
more
`
reasonable
progress'
will
thereby
be
attained."
Id.
In
that
case,
the
BART­
alternative
in
question
applied
to
a
single
facility.

In
CEED
v.
EPA,
[
citation],
D.
C.
Cir.,
2005,
the
DC
Circuit
similarly
applied
the
two­
step
Chevron
test
and
also
found
that
the
statutory
language
was
ambiguous
and
that
EPA's
interpretation
was
reasonable.
[
slip
op.]
at
12­
13.
In
CEED
v.
EPA
the
BART­
alternative
at
issue
(
the
WRAP
Annex)
applied
not
just
to
one
facility
but
to
all
BART­
eligible
sources
(
as
well
as
other
sources)
in
participating
States.
Therefore,
the
CEED
v.
EPA
decision
clarified
that
EPA's
interpretation
of
169A(
b)(
2)
allowing
BART­
alternative
is
reasonable
not
only
in
a
sourcespecific
context
but
also
in
the
context
of
larger
programmatic
BART­
alternatives.
(
The
court
vacated
the
Annex
on
other
grounds,
holding
that
EPA
did
not
rationally
exercise
its
discretion
with
respect
to
the
particular
methodology
required
of
States
to
demonstrate
that
the
Annex
would
result
in
greater
progress
than
BART)
[
cite].

The
CAIR
cap
and
trade
program
for
EGUs
represents
an
intermediate
case
between
the
singlesource
BART
alternative
in
Central
Arizona
Water
and
the
all­
BART­
sources
alternative
in
CEED
v.
EPA.
A
BART­
alternative
program
can
only
achieve
emission
reductions
at
sources
included
in
the
program
and
so
(
obviously)
cannot
achieve
greater
reasonable
progress
than
BART
with
respect
to
BART­
eligible
sources
which
are
not
covered
by
the
program.
Therefore,
the
relevant
question
for
CAIR
is
whether
it
achieves
greater
reasonable
progress
from
EGUs
than
would
BART
for
EGUs.
If
it
can
be
shown
that
CAIR
does
so,
then
under
EPA's
interpretation
of
169A(
b)(
2),
upheld
in
both
these
cases,
BART
for
EGUs
is
not
"
necessary
to
make
reasonable
progress."
Because
this
finding
would
be
applicable
only
to
EGUs,
it
would
not
frustrate
Congress'
intent
in
identifying
26
source
categories
for
BART
applicability.

The
EPA
believes
the
analysis
presented
in
the
CAIR
preamble
and
TSD
convincingly
demonstrate
that
CAIR
achieves
greater
reasonable
progress,
with
respect
to
SO
2
and
NO
x
emissions
from
EGUs,
than
would
source­
specific
BART
for
EGUs
in
the
CAIR
region.
Moreover,
the
EPA
does
not
believe
that
it
is
a
prerequisite
of
BART­
alternative
programs
that
the
emission
reductions
be
developed
explicitly
for
visibility
purposes
in
the
first
place.
As
long
as
the
end
result
is
greater
visibility
improvement
than
BART,
it
is
of
no
consequence
that
the
emission
reductions
were
initially
developed
to
serve
other
air
quality
purposes.
As
the
DC
Circuit
stated,
"
Congress's
addition
of
§
169B
.
.
.
clarified
that
the
focus
of
the
Clean
Air
Act
was
to
achieve
`
actual
progress
and
improvement
in
visibility,'
.
.
.
not
to
anoint
BART
the
mandatory
vehicle
of
choice."
[
slip.
op.
at
13].
As
long
as
visibility
is
actually
improved
more
than
it
would
be
under
BART,
it
should
not
matter
whether
the
emission
reductions
were
developed
explicitly
for
visibility,
as
under
BART,
or
for
some
other
purpose,
as
under
CAIR.

The
EPA
also
does
not
believe
that
regional
haze
rule
section
308(
e)(
2)
provides
any
support
for
the
notion
that
emissions
reductions
from
other
programs
must
be
in
addition
to,
not
substitute,
for
BART.
We
first
note
that
the
decision
in
CEED
v.
EPA
necessitates
revisions
to
308(
e)(
2),
at
least
in
the
provisions
requiring
visibility
to
be
evaluated
on
a
cumulative
basis
in
defining
the
BART
benchmark
for
comparison
to
BART
alternative
programs.
It
remains
to
be
seen
whether
308(
e)(
2)(
iv),
which
requires
that
emissions
reductions
from
the
BART
alternative
be
"
surplus
to
reductions
resulting
from
measures
adopted
to
meet
requirements
as
of
the
baseline
date
of
the
SIP,"
will
be
changed.
Even
if
that
section
remains
unchanged,
CAIR
complies
with
it.
The
baseline
date
of
Regional
Haze
SIPs
is
2002.
Since
any
emissions
reduction
requirements
to
meet
CAIR
would
necessarily
be
adopted
after
2002,
CAIR­
required
reductions
would
be
surplus
to
measures
adopted
as
of
the
baseline
year.

Finally,
with
respect
to
the
decision
in
Sierra
Club
v.
EPA,
nothing
in
that
case
alters
EPA's
opinion
that
it
has
the
authority
to
approve
alternative
programs
in
lieu
of
BART.
Sierra
Club
simply
represents
an
application
of
the
two
pronged
Chevron
test,
in
which
the
court
found
that
Congress
had
directly
spoken
to
some
of
the
questions
at
issue
and
therefore
remanded
those
matters
to
EPA.
Because
there
was
no
ambiguity
in
the
Act
with
respect
to
certain
requirements
at
issue,
the
court
applied
the
principle
that
an
agency
is
not
free
to
substitute
its
own
policy
judgment
for
that
of
the
Congress.
In
contrast,
as
explained
above,
EPA's
interpretation
of
169A(
b)(
2)
under
Chevron
has
been
upheld
in
both
the
Ninth
and
DC
Circuits.

Notwithstanding
all
the
above,
as
discussed
in
the
NFR
preamble
and
below,
the
EPA
recognizes
that
the
determination
that
CAIR
achieves
greater
progress
than
BART
may
not
be
finalized
until
the
proposed
guidelines
for
making
BART
determinations,
and
additional
regulatory
changes
necessitated
by
the
recent
decision
in
CEED
v.
EPA,
are
final.
The
BART
guidelines
will
contain
presumptive
levels
of
control
for
EGUs.
In
a
separate
action
we
will
establish
criteria
for
evaluating
BART­
alternative
programs.
The
current
analysis
in
the
TSD
is
based
on
the
application
of
proposed
presumptive
BART
controls
for
EGUs
to
all
BART­
eligible
EGUs
as
a
conservative
(
most
stringent)
estimate
of
emissions,
and
on
the
"
better­
than­
BART"
criteria
proposed
in
the
2004
BART
guidelines
package.

Commenters:
Environmental
Defense,
OAR­
2003­
0053­
1776;
Clean
Air
Task
Force,
et
al.,
OAR­
2003­
0053­
1762;
South
Carolina
Department
of
Health
and
Environmental
Control,
OAR­
2003­
0053­
1820.
Comment:
Several
commenters
stated
that
a
categorical
exclusion
by
EPA
of
BART­
eligible
sources
from
BART
would
constrain
State
discretion
in
violation
of
the
decision
in
the
American
Corn
Growers
case,
because
it
would
allow
no
consideration
of
visibility
impacts
on
individual
source
basis.
Others
commented
that
the
better­
than­
BART
policy
appears
to
limit
the
ability
of
state
to
apply
additional
standards
(
e.
g.,
BART)
if
the
State
participates
in
the
cap
and
trade
program.
At
least
one
State
commented
that
it
desires
to
maintain
its
discretion
to
make
BART
determinations.

Response:
The
CAIR
does
not
constrain
State
discretion
in
making
BART
determinations.
If
EPA
determines
that
CAIR
achieves
greater
progress
than
BART
for
EGUs,
States
will
be
allowed
to
treat
CAIR
as
an
alternative
in
lieu
of
BART
but
will
not
be
required
to
do
so.

Commenter:
Clean
Air
Task
Force
et
al.,
OAR­
2003­
0053­
1762.

Comment:
Some
commenters
noted
that
CAA
169A(
c)
prescribes
the
specific
conditions
under
which
EPA
may
grant
exemptions
from
BART,
which
have
not
been
satisfied
in
this
case.

Response:
As
also
explained
in
greater
detail
in
the
preamble,
the
Better­
than­
BART
policy
is
not
properly
cast
as
an
exemption,
but
rather
is
an
alternative
means
of
complying
with
the
CAA
provisions
on
which
BART
requirements
are
based.

Commenter:
Clean
Air
Task
Force
et
al.,
OAR­
2003­
0053­
1762.

Comment:
Some
commenters
note
that
CAA
169A(
b)(
2)(
A)
requires
BART
based
on
contribution
to
any
Class
I
area.
They
point
out
that
EPA
did
not
demonstrate
greater
progress
than
BART
at
each
and
every
Class
I
area,
but
instead
modeled
only
certain
class
I
Areas,
and
the
assessed
improvement
on
an
average
basis.
These
commenters
assert
there
is
no
basis
in
the
law
or
the
regional
haze
rule
to
support
a
BART
substitute
which
is
not
demonstrated
to
achieve
greater
progress
at
each
area.

Response:
This
comment
was
addressed
in
the
preamble.
There
we
explained
that
we
disagree
with
comments
that
169A(
b)(
2)'
s
requirement
of
BART
for
sources
reasonably
anticipated
to
contribute
to
impairment
at
any
Class
I
area
means
that
an
alternative
to
BART
program
must
be
shown
to
create
improvement
at
each
and
every
Class
I
Area.
Even
if
a
BART
alternative
is
deemed
to
satisfy
BART
for
regional
haze
purposes,
based
on
average
overall
improvement
as
opposed
to
improvement
at
each
and
every
Class
I
Area,
169A(
b)(
2)'
s
trigger
for
BART
based
on
impairment
at
any
Class
I
area
remains
in
effect,
because
a
source
may
become
subject
to
BART
based
on
"
reasonably
attributable
visibility
impairment"
at
any
area.
.
In
any
case,
the
criteria
we
applied
in
our
present
analysis
 
that
greater
reasonable
progress
is
defined
as
no
degradation
at
any
Class
I
area,
and
greater
overall
average
improvement
 
has
not
been
finalized.

Commenters:
Michigan
Department
of
Environmental
Quality,
Air
Quality
Division,
OAR­
2003­
0053­
1180.

Comment:
One
commenter
stated
that
EPA
did
not
provide
sufficient
information
regarding
the
application
of
the
BART
factors
to
affected
sources.

Response:
Under
the
proposed
Better­
than­
BART
test,
the
pertinent
question
is
whether
the
alternative­
to­
BART
program
makes
greater
reasonable
progress
by
producing
greater
emission
reductions
and,
if
the
distribution
of
reductions
is
different,
greater
visibility
benefits.
To
determine
the
emission
reductions
and
corresponding
visibility
improvements
achievable
by
BART
for
EGUs,
we
used
the
presumptive
control
levels
currently
proposed
in
the
BART
guidelines.
The
statutory
BART
factors
were
applied
to
develop
these
presumptive
control
levels.
The
analysis
employing
these
factors
will
be
further
explained
in
the
BART
Guidelines
NFR,
on
or
before
April
15,
2005.
Commenter:
Wisconsin
Department
of
Natural
Resources,
OAR­
2003­
0053­
1799.

Comment:
One
commenter
implied
that
the
CAIR
ultimate
SO
2
reductions
of
70%,
with
58%
reductions
in
2015,
fall
short
of
the
BART
presumptive
level
of
90
 
95%
for
uncontrolled
EGUs.

Response:
It
is
not
appropriate
to
directly
compare
these
percentages.
The
CAIR
reductions
of
70%
is
for
all
EGUs
in
the
affected
regions,
which
includes
not
only
currently
uncontrolled
BART­
eligible
sources,
but
BART­
eligible
sources
which
are
currently
controlled
at
a
lesser
efficiency
and
may
not
be
required
to
achieve
95%
after
consideration
of
the
BART
factors,
plus
all
other
non­
BART
eligible
EGUs.
The
relevant
point
of
comparison
is
total
emission
reductions,
which
as
stated
elsewhere
are
2.3million
tons
SO
2
more
per
year
nationwide
under
CAIR
than
under
BART.

Commenter:
North
Carolina
Division
of
Air
Quality
(
NCDAQ),
OAR­
2003­
0053­
1767.

Comment:
One
State
commented
that
the
SNPR
modeling
shows
that
the
improvement
of
CAIR
compared
to
source­
specific
BART
is
so
slight
it
may
be
potentially
within
the
margin
of
error,
and
therefore
insufficient
for
the
Better
than
BART
demonstration
or
to
assure
that
no
hot
spots
will
occur.

Response:
EPA
has
completed
the
refined
modeling
of
the
nationwide
BART
and
BART
+
CAIR
model
runs
using
an
updated
2001
modeling
platform.
The
visibility
results
continue
to
show
that
the
CAIR
cap
and
trade
program
provides
considerably
more
visibility
improvement
compared
to
nationwide
BART
(
for
EGUs
only).
The
NFR
modeling
results
show
that
the
average
visibility
improvement
from
CAIR
on
the
20%
worst
days
at
29
Eastern
Class
I
areas
is
1.6
deciviews
(
dv)
compared
to
only
a
0.7
dv
improvement
from
nationwide
BART
controls.
In
the
BART
TSD
we
have
provided
modeling
results
for
116
individual
Class
I
areas.
The
modeling
shows
that
CAIR
will
not
create
any
"
hot
spots".
On
the
20%
worst
days,
all
of
the
Eastern
Class
I
areas
show
more
visibility
improvement
under
CAIR
than
under
BART.
In
many
of
the
Western
Class
I
areas,
BART
and
CAIR
provide
about
the
same
visibility
benefits.
While
the
visibility
benefits
are
similar
in
the
West
(
outside
of
the
CAIR
region),
they
are
clearly
not
similar
in
the
East,
where
the
CAIR
is
predicted
to
achieve
twice
as
much
visibility
improvement
compared
to
BART.
We
do
not
agree
with
the
commenter
that
the
improvements
are
slight.
At
the
four
Class
I
area
sites
in
North
Carolina,
on
the
20%
worst
days,
the
modeling
shows
that
the
CAIR
cap
and
trade
program
provides
2­
3
times
more
visibility
improvement
compared
to
nationwide
BART
(
the
CAIR
visibility
improvements
range
from
1.9­
2.6
dv
at
the
four
Class
I
areas).
The
modeling
also
shows
that
CAIR
will
not
result
in
any
visibility
degradation
on
either
the
20%
worst
days
or
20%
best
days.

Commenters:
Large
Public
Power
Council
(
LPPC),
OAR­
2003­
0053­
1756;
Utility
Air
Regulatory
Group
(
UARG),
OAR­
2003­
0053­
1784;
Florida
Municipal
Electric
Association
(
FMEA),
OAR­
2003­
0053­
1683;
Center
for
Energy
&
Economic
Development,
Inc.,
OAR­
2003­
0053­
0371;
National
Mining
Association,
OAR­
2003­
0053­
0705.

Comment:
Several
commenters
agreed
with
our
determination
that
CAIR
would
not
preclude
the
possibility
of
reasonably
attributable
determinations
by
Federal
Land
Managers
(
FLMs)
or
States
under
the
1980
BART
regulations,
and
that
sufficient
regulatory
certainty
could
be
provided
to
sources
through
a
memorandum
of
understanding
with
FLMs
similar
to
that
used
by
the
WRAP.

Response:
As
noted
in
the
preamble,
the
EPA
continues
to
maintain
that
BART
based
on
RAVI
must
be
retained
in
order
to
protect
against
the
possibility
of
localized
degradation,
even
though
current
modeling
does
not
predict
such
"
hot
spots."
We
also
agree
that
regulatory
certainty
may
be
improved
by
agreements
with
FLMs
regarding
the
circumstances
under
which
RAVI
may
be
certified,
coupled
if
necessary
with
"
geographic
enhancements"
to
the
trading
program
to
accommodate
sources
subject
to
RAVI
BART.

Commenters:
Natsource
(
for
Generators
for
Clean
Air
[
GCA]),
OAR­
2003­
0053­
1796;
Dominion,
OAR­
2003­
0053­
1778.

Comment:
One
commenter
believed
that
CAIR
should
be
deemed
to
satisfy
not
only
BART
for
regional
haze
purposes
but
BART
for
reasonably
attributable
visibility
impairment
(
RAVI)
as
well,
without
need
for
geographic
enhancements
to
reconcile
the
cap
and
trade
program
to
BART
requirements
triggered
by
RAVI.

Response:
This
comment
is
addressed
in
the
preamble
and
the
response
to
the
previous
comment
above.

Commenter:
Dominion,
OAR­
2003­
0053­
1778.

Comment:
One
commenter
believed
that
geographic
enhancements,
if
used,
should
not
be
determined
on
an
across
the
board
(
i.
e,
across
all
States)
basis.

Response:
The
EPA
agrees
that
it
is
not
necessary
to
develop
a
uniform
policy
on
geographic
enhancements.
Instead,
this
is
appropriately
left
to
State
discretion,
so
we
have
not
prescribed
any
geographic
enhancement
provisions
within
the
cap
and
trade
program
rules.

Commenter:
Florida
Municipal
Electric
Association
(
FMEA),
OAR­
2003­
0053­
1683.

Comment:
Commenter
stated
that
geographic
enhancements
should
also
be
available
for
purposes
of
new
source
requirements.
Thus,
the
commenter
believes,
visibility
improvements
from
CAIR
should
be
incorporated
in
FLM
review
of
visibility
impacts
of
new
generating
units
located
near
Class
I
areas,
and
that
EPA
provide
guidance
to
the
states
and
FLMs
on
how
to
do
so.

Response:
The
EPA
disagrees
that
geographic
enhancements
should
play
any
role
in
the
context
of
new
sources.
The
purpose
of
geographic
enhancements
is
to
accommodate
the
emission
market
to
source­
specific
retrofits
required
because
an
existing
source
is
causing
a
"
hot
spot."
Such
considerations
do
not
exist
with
respect
to
new
sources.
The
EPA
is
not
including
guidance
to
States
and
FLMs
on
how
to
incorporate
visibility
improvements
from
CAIR
into
the
review
of
new
source
impacts,
but
will
continue
to
work
with
States
and
FLMs
on
these
issues,
primarily
through
the
Regional
Planning
Organizations.

Commenters:
Progress
Energy,
OAR­
2003­
0053­
1726;
Texas
Commission
on
Environmental
Quality,
OAR­
2003­
0053­
1827
Comment:
Several
commenters
stated
that
CAIR
should
be
deemed
to
satisfy
BART
whether
or
not
a
state
participates
in
the
cap
and
trade
program.

Response:
EPA's
preliminary
demonstration
that
CAIR
gets
more
reasonable
progress
than
source­
specific
BART
for
EGUs
is
based
on
a
comparison
of
emissions
reductions
and
attendant
air
quality
affects
under
BART
as
applied
to
EGUs,
with
those
under
CAIR
for
EGUs.
If
emissions
reductions
are
achieved
from
other
source
sectors,
a
similar
analysis
would
need
to
be
conducted
for
those
sectors
before
it
could
be
determined
that
the
reductions
were
better
than
BART
for
affected
sources.
For
example,
the
inclusion
of
non­
EGU
sources
in
the
State's
emission
reduction
requirement
would
allow
more
emissions
from
the
State's
EGUs.
The
State
would
have
demonstrate
that
these
increased
emissions
do
not
cause
degradation
at
any
Class
I
area,
and
still
result
in
greater
overall
improvement,
when
considered
along
with
the
emission
reductions
from
non­
EGUs.
In
addition,
the
State
would
have
to
conduct
a
better­
than­
BART
demonstration
for
any
BART­
eligible
non­
EGUs,
if
the
State
seeks
to
substitute
the
CAIR
reductions
at
those
sources
for
BART
requirements.

Commenter:
North
Dakota
Department
of
Health,
OAR­
2003­
0053­
0945
Comment:
CAIR
could
satisfy
"
regulatory
requirements
under
the
Regional
Haze
Program"
only
if
the
budgets
established
by
the
rule
are
equal
or
less
than
the
emission
rate
achieved
through
the
application
of
BART
in
308
States
or
through
the
WRAP
Annex.

Response:
With
respect
to
States
in
the
CAIR
region,
we
note
that
our
analysis
indicates
that
CAIR
would
result
in
2,339,000
less
tons
per
year
of
SO2
and
639,000
less
tons
per
year
of
Nox
in
2015
compared
to
emission
in
those
states
under
a
nationwide
BART
strategy.
With
respect
to
the
rest
of
the
country,
this
same
analysis
indicates
that
nationwide
emissions
would
be
2,427,000
tons
less
SO2
and
638,000
tons
less
Nox
under
CAIR
as
compared
to
nationwide
BART.
With
respect
to
the
WRAP
Annex,
that
program
is
currently
under
review
in
light
of
the
DC
Circuit's
decision
in
CEED
v.
EPA.
We
note
however
that
the
BART
control
assumptions
we
modeled
are
more
stringent,
with
respect
to
EGUs,
than
those
utilized
by
the
WRAP
in
developing
the
Annex.
(
For
SO2,
our
modeling
reflected
a
90%
control
level
on
BART­
eligible
EGUs.
The
WRAP
utilized
a
tiered
approach
with
a
maximum
of
85%
control
on
uncontrolled
or
undercontrolled
BART­
eligible
EGUs).

Commenter:
Vermont
Air
Pollution
Control
Division,
OAR­
2003­
0053­
0714.

Comment:
One
State
felt
that
allowing
CAIR
to
substitute
for
BART
would
reward
States
and
sources
that
have
historically
resisted
emission
controls.

Response:
The
EPA
believes
environmental
policy
should
be
designed
to
achieve
environmental
benefits
in
the
most
expeditious
manner
possible,
not
to
assign
blame
or
reward.
Moreover,
considering
that
source­
specific
BART
requirements
have
not
been
fully
implemented
at
any
source
since
the
provisions
were
enacted
in
1977,
there
does
not
appear
to
be
much
basis
for
distinguishing
among
States
in
terms
of
their
performance
in
this
area..
(
There
have
been
a
handful
of
cases
were
controls
were
installed
as
a
result
of
settlements
that
halted
the
BART
process).

Commenters:
North
Carolina
Division
of
Air
Quality
(
NCDAQ),
OAR­
2003­
0053­
1767;
National
Petrochemical
&
Refiners
Association
(
NPRA),
OAR­
2003­
0053­
1816.

Comment:
One
commenters
felt
it
would
be
inequitable
to
"
exempt"
EGUs
from
BART
when
non­
EGUs
are
subject
to
other
requirements
such
as
NSPS
and
MACT
standards.
One
State
believed
this
policy
would
disadvantage
non­
EGU
BART
sources
by
requiring
earlier
compliance
with
them.

Response:
Because
non­
EGUs
are
generally
not
in
economic
competition
with
EGUs,
it
is
difficult
to
see
how
varying
compliance
time
frames
would
raise
any
equity
issues.
To
the
extent
such
issues
exist,
States
may
be
able
to
address
them
by
designing
similar
BART­
alternatives
in
their
regional
haze
implementation
plans.
Moreover,
States
are
not
precluded
from
obtaining
more
emission
reductions
from
EGUs
for
haze
purposes
if
they
believe
that
is
the
most
cost
effective
and
equitable
means
of
achieving
reasonable
progress.

Commenters:
Wisconsin
Department
of
Natural
Resources,
OAR­
2003­
0053­
1799;
Georgia
Department
of
Natural
Resources,
Environmental
Protection
Division,
Air
Protection
Branch,
OAR­
2003­
0053­
0698;
North
Carolina
Division
of
Air
Quality,
OAR­
2003­
0053­
0779.

Comment:
One
State
thought
that
the
cap
and
trade
program
would
result
in
fewer
source­
specific
reductions
because
economic
factors
favor
getting
reductions
at
newer,
more
base­
loaded
units.
Another
State
expressed
that
it
is
difficult
to
envision
a
source
complying
with
BART
solely
through
the
purchase
of
allowances.
Another
State
argued
that
CAIR
should
be
deemed
to
satisfy
BART
within
a
State
only
if
that
State
does
not
participate
in
the
cap
and
trade
program.

Response:
The
purpose
emissions
trading
program
is
to
achieve
targeted
emission
reductions
in
the
most
cost
effective
manner.
As
long
as
the
overall
emissions
reductions,
and
corresponding
environmental
benefits,
are
greater
under
the
cap
and
trade
program
than
otherwise,
it
should
not
matter
where
those
reductions
occur.
Therefore,
except
for
provisions
necessary
to
address
localized
"
hot
spots,"
cap
and
trade
programs
should
avoid
geographic
restrictions
on
trading
in
order
to
maximize
the
efficiency
of
the
market.

Commenters:
Central
States
Air
Resources
Agencies
Administration
(
CenSARA),
OAR­
2003­
0053­
1013;
Cinergy
Corporation,
OAR­
2003­
0053­
0762;
Tennessee
Division
of
Air
Pollution
Control,
OAR­
2003­
0053­
0778;
Nebraska
Department
of
Environmental
Quality,
Air
Quality
Division,
OAR­
2003­
0053­
1176;
Edison
Electric
Institute,
OAR­
2003­
0053­
0774.
Comment:
Some
commenters
asserted
that
EPA
should
allow
non­
CAIR
affected
states
to
opt­
in
to
the
cap
and
trade
program
in
order
to
meet
BART;
others
further
stated
that
this
opt
in
should
be
allowed
if
the
State
shows
that
reasonable
progress
goals
and
BART
reductions
will
be
achieved.

Response:
As
explained
in
the
CAIR
NFR
preamble
at
section
VII,
allowing
states
outside
the
CAIR
region
which
have
not
been
shown
to
contribute
significantly
to
non­
attainment
to
participate
in
the
cap
and
trade
program
could
result
in
emission
shifting
to
states
in
the
CAIR
region.
To
prevent
this,
States
outside
the
CAIR
region
are
not
allowed
to
participate
in
the
program.
Any
expansion
of
the
CAIR
cap
and
trade
region
must
be
done
not
based
on
individual
State
opt
ins,
but
rather
in
a
systematic
way
which
takes
into
account
the
potential
for
emission
shifting.
The
EPA
may
consider
such
an
expansion
for
the
purpose
of
addressing
haze
in
a
subsequent
rule
making.

Commenters:
NiSource
Inc,
OAR­
2003­
0053­
1766;
Cinergy
Corp.,
OAR­
2003­
0053­
1779.

Comment:
One
commenter
stated
that
the
policy
of
allowing
CAIR
to
substitute
for
BART
should
not
be
limited
to
States
that
are
affected
by
CAIR
for
both
SO
2
and
NO
x.
The
commenter
was
concerned
that
in
NO
x
SIP­
call
States
that
chose
to
meet
some
of
their
NO
x
reduction
requirements
from
non­
EGUs,
it
was
likely
that
NO
x
reductions
under
CAIR
would
also
be
obtained
in
part
from
these
non­
EGUs,
thereby
disqualifying
the
State
from
participating
in
the
cap
and
trade
program
and
thus
from
satisfying
BART.
Similarly,
one
commenter
thought
that
CAIR­
affected
EGUs
should
also
be
"
exempt"
from
BART
for
VOC
and
direct
PM.

Response:
Because
BART
eligibility
is
based
on,
among
other
criteria,
the
emissions
of
250
tons
per
year
or
more
of
any
visibility
impairing
pollutant,
a
BART­
alternative
program
(
such
as
CAIR
in
this
case)
satisfies
BART
only
for
those
pollutants
regulated.
Therefore
a
source
subject
only
to
summertime
NO
x
controls
cannot
be
considered
to
have
satisfied
BART
with
respect
to
SO
2.
With
respect
to
VOC
and
PM,
we
note
that
we
are
considering
including
in
the
BART
guidelines
a
de
minimus
policy
for
pollutants
other
than
those
on
which
the
BART
determination
is
based.

Commenters:
Northeast
States
for
Coordinated
Air
Use
Management
(
NESCAUM),
OAR­
2003­
0053­
1674;
Ozone
Transport
Commission
(
OTC),
OAR­
2003­
0053­
1772.
Clean
Air
Task
Force,
OAR­
2003­
0053­
0742
Comment:
A
few
commenters
stated
that
the
CAIR
should
use
an
approach
similar
to
OTC's
NOx
Budget
Program,
whereby
Phase
I
of
the
program
required
the
installation
of
RACT
on
EGUs
and
large
industrial
boilers
greater
than
250
MMBtu/
hr
in
order
to
establish
a
benchmark
control
level,
and
after
RACT
was
installed
at
all
participating
sources
additional
reductions
were
pursued
using
a
cap­
and­
trade
program.
One
commenter
urged
that
EPA
preserve
the
requirement
that
BART
be
installed
on
all
individual
sources
for
which
it
is
appropriate
under
the
Agency's
BART
Guidelines.

Response:
The
EPA
is
not
changing
the
requirements
for
BART
in
this
rulemaking.
As
explained
in
the
preamble
and
elsewhere
in
this
document,
the
EPA
has
determined
that
CAIR
will
achieve
greater
average
visibility
improvement
with
respect
to
EGUs
in
the
CAIR
region
than
would
BART,
as
defined
by
the
presumptive
EGU
control
levels
proposed
in
2004.
Once
the
final
BART
guidelines
for
EGUs
and
the
criteria
for
BART­
alternative
programs
are
final,
EPA
will
determine
whether
CAIR
achieves
greater
reasonable
progress
than
BART
and
may
therefore
substitute
for
BART
for
EGUs.
Whether
or
not
EPA
makes
that
determination,
nothing
will
preclude
States
from
deciding
at
their
own
discretion
that
BART
controls
are
needed
at
specific
sources
in
order
to
achieve
reasonable
progress
under
the
regional
haze
program.
In
addition,
as
also
previously
noted,
the
requirements
of
BART
for
reasonably
attributable
visibility
impairment
continue
to
apply.

However,
any
requirements
dictating
where
emission
reductions
occur
tend
to
undermine
the
purpose
of
the
emission
trading
programs
 
reducing
emissions
in
the
most
cost­
effective
manner.
Therefore
it
is
preferable
to
avoid
superimposing
source­
specific
requirements
onto
trading
programs
to
the
extent
possible.
If
EPA
determines
that
CAIR
may
substitute
for
BART,
then
EPA
will
leave
it
to
the
discretion
of
States
to
decide
whether
it
is
appropriate
to
require
BARTeligible
sources
in
the
CAIR
region
to
install
BART
controls,
or
whether
to
allow
the
market
to
determine
the
most
cost
effective
emission
reductions
without
interference.

We
also
disagree
with
the
commenter's
suggestion
that
BART
be
implemented
first,
with
further
reductions
from
the
trading
program
coming
later.
The
CAIR
emission
reductions
are
required
before
BART
implementation
is
required
under
the
CAA
and
regional
haze
rule,
therefore
the
only
way
to
integrate
the
requirements
is
to
implement
the
CAIR
cap
and
trade
program
first.
In
addition,
because
CAIR
achieves
both
greater
and
earlier
reductions,
it
is
a
better
alternative
than
that
suggested
by
the
commenter.

Commenters:
Center
for
Energy
&
Economic
Development,
Inc.,
OAR­
2003­
0053­
0371;
Jackson
Kelly
PLLC
for
Midwest
Ozone
Group
(
MOG),
OAR­
2003­
0053­
1064;
Dominion,
OAR­
2003­
0053­
1099.

Comment:
Several
commenters
stated
that
if
CAIR
is
not
allowed
to
substitute
for
BART,
then
BART
determinations
should
start
with
a
consideration
of
controls
resulting
from
CAIR,
and
then
consider
the
incremental
costs
of
additional
controls.

Response:
As
noted,
the
EPA
believes
that
once
the
BART
guidelines
are
finalized,
it
will
be
demonstrated
that
CAIR
makes
greater
reasonable
progress
than
BART
and
therefore
may
substitute
for
BART
for
affected
sources
and
pollutants.
In
the
event
this
does
not
occur,
or
for
States
that
choose
not
to
accept
our
final
better­
than­
BART
determination,
the
BART
determination
process
pursuant
to
CAA
169A(
b)(
2)
provides
for
consideration
of
existing
controls
at
a
particular
source.
Controls
installed
for
compliance
with
CAIR
would
be
considered
under
these
provisions,
and
in
accordance
with
the
BART
determination
guidelines.

Commenter:
Pennsylvania
Department
of
Environmental
Protection,
Office
of
Air,
Recycling
and
Radiation
Protection,
OAR­
2003­
0053­
0949.

Comment:
One
commenter
stated
that
EPA
analysis
indicates
it
will
be
difficult
to
achieve
cost­
effective
emission
reductions
from
non­
EGUs,
therefore
EPA
must
set
the
CAIR
reduction
levels
to
assure
visibility
goals
met.

Response:
The
CAIR
emission
reductions
requirements
were
based
on
cost­
effective
emission
reductions
at
all
EGUs
in
the
affected
regions,
not
just
BART­
eligible
units.
Because
the
cost
effectiveness
of
emissions
reductions
is
not
dependent
on
purpose
of
the
reductions
(
unlike
a
benefit­
cost
analysis),
it
is
difficult
to
envision
how
cost
effective
emissions
reductions
based
on
visibility
could
be
any
greater
than
for
reductions
based
on
health
effects.
Moreover,
as
stated
elsewhere,
States
are
not
constrained
to
accept
the
better­
than­
BART
determination
and
may
seek
greater
reductions
from
BART­
eligible
EGUs
if
deemed
necessary
to
fulfill
the
State's
obligation
to
make
reasonable
progress.

Commenters:
North
Carolina
Division
of
Air
Quality
(
NCDAQ),
OAR­
2003­
0053­
1767;
Adirondack
Mountain
Club,
OAR­
2003­
0053­
0624.

Comment:
One
commenter
stated
that
because
CAIR
extends
BART
compliance
past
2015,
due
to
banking
of
allowances,
reasonable
progress
towards
the
national
visibility
goal
will
be
jeopardized.

Response:
The
EPA
first
notes
that
CAIR
reductions
will
commence
earlier
than
would
BART
reductions,
that
is,
in
2010
rather
than
2014
or
2015.
Therefore,
in
the
short
term,
reasonable
progress
will
be
accelerated.
Moreover,
although
banking
of
allowances
will
delay
the
achievement
of
the
full
reductions
required
by
CAIR,
the
reductions
achieved
in
2015
will
under
CAIR
will
still
far
outweigh
those
projected
under
BART
alone.
Specifically,
CAIR
would
result
in
2,339,000
less
tons
per
year
of
SO2
and
639,000
less
tons
per
year
of
Nox
in
2015
compared
to
emission
in
those
states
under
a
nationwide
BART
strategy
