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CSAPR Stay May Affect Regional Haze Requirements
January 24, 2012The stay of the Cross State Air Pollution Rule by the United States Court of Appeals for the District of Columbia Circuit casts uncertainty over an EPA proposal to allow states to rely on the Cross State Air Pollution Rule to meet the Clean Air Act’s regional haze requirements. The regional haze program modifications, announced the same day as the stay, are now uncertain.
Section 169A of the CAA requires states to ensure adequate visibility in protected lands by, among other things, adopting state implementation plans (SIPs) that require existing sources to install “best available retrofit technology” (BART).
The EPA published a proposed rule on December 30, 2011, which would allow the trading program in the Cross-State Air Pollution Rule (CSAPR) to be treated as an alternative to determining source-by-source BART. This would allow states in the CSAPR region to substitute participation in CSAPR for source-specific BART for sulfur dioxide and/or nitrogen oxides emissions from power plants.
The EPA is also proposing to partially disapprove the regional haze provisions of SIPs for 14 states (Alabama, Florida, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina, and Texas), on the grounds that those SIPs relied on the predecessor to the CSAPR – the Clean Air Interstate Rule (CAIR) – to demonstrate compliance with BART. The EPA would replace those disapproved plans with a Federal Implementation Plan (FIP) that would rely on CSAPR. In addition, the EPA is proposing FIPs for four states, Kentucky, Tennessee, Virginia and West Virginia, for which the EPA had previously proposed limited disapproval of their SIPs.
Now that CSAPR has been stayed, and the implementation of CAIR extended into 2012, it is not clear whether the EPA will amend or rescind the proposal and allow these states to continue to rely upon CAIR for compliance with regional haze requirements.
This post was authored by GLLF staff attorney Emily Kelchen.