Over the summer, several states were among the first to submit to the U.S.
Environmental Protection Agency their regional haze state implementation
plan (SIPs) revisions intended to govern the program for the second
planning period, which extends through 2028. Some states opted to evaluate
a broad range of sources for new emission controls, while others determined
that no additional controls are needed, often based on emission reduction
progress already achieved through existing regulatory programs and facility shutdowns. Many states are continuing to evaluate what type of approach to take.
EPA guidance issued in 2017 indicated that states might have broad
authority to take these different paths, but a new memo issued just weeks
before the official deadline for states to submit their new regional haze
SIPs to EPA suggests the Biden administration may take a hard look at SIPs
that do not impose new control requirements.
The EPA memo, titled “Clarifications Regarding Regional Haze State
Implementation Plans for the Second Implementation Period,” seeks to secure
meaningful reductions in visibility-impairing pollutants, and explains that
the agency expects states to undertake “rigorous” reasonable progress
analyses — based on evaluation of four factors states must consider
pursuant to the Clean Air Act — to identify opportunities to advance the
national visibility goal of unimpaired conditions in protected national
parks and wilderness areas. Although the memo expressly says it is not a
prejudgment of any state’s SIP, it does suggest that states seeking to
avoid imposing new control requirements will need to provide strong support
for such decisions.
The memo provides clarifications regarding four broad topics: (1) selection
of sources for analysis, (2) characterization of factors for emission
control measures, (3) decisions on what control measures are necessary to
make reasonable progress and (4) additional issues related to assessing
control measures. A few key issues from the memo that states and
potentially affected sources should consider are described below.
Regarding source selection, the memo emphasizes that states cannot achieve
reasonable progress if they have not identified the right
sources. EPA goes on to explain that states must choose sources with the
potential to meaningfully reduce each state’s individual contributions to
visibility impairment, even if other states contribute much more on a
relative basis. Therefore:
- Each state must participate.
- If a state relies on a visibility threshold, it must use a meaningful
portion of the state’s total contribution to visibility impairment.
- States should do more than capture a small percentage of their
- States with larger sources that contribute more to visibility impairment
should select more sources.
- States with relatively small sources should nonetheless select their
largest in-state sources.
- States must consider sources recommended by other states and by the
federal land managers, like the National Park Service.
For sources that are selected for a reasonable progress analysis, the memo
makes it clear that states should consider requiring efficiency
improvements for existing controls, including limits recently achieved even
if they are more stringent than current regulatory requirements. The memo
goes on to say that EPA believes that, in “many cases,” a reasonable
progress analysis will identify new controls that are appropriate. The memo
also reaffirms EPA’s position that only after a state identifies all
reasonable control requirements can it then model reasonable progress
goals, expressed in terms of visibility improvements, for protected areas.
EPA’s statement in this regard suggests some states may be proceeding by
selecting goals for protection first, and then opting only for those
controls needed to reach those targets.
Among the other issues addressed in the memo is the role of visibility
impacts themselves. The memo retains EPA’s previous position that, even
though visibility is not one of the four factors states must consider when
evaluating reasonable progress, states may nevertheless take visibility
impacts into account. The memo adds, however, that small visibility impacts should not be used “to summarily dismiss cost-effective
controls.” States instead may use visibility to select among competing
cost-effective controls and to select sources and/or prioritize impact.
Further, the memo explains that a state that “rejects most (or all) …
cost-effective controls … based on visibility benefits is likely to be
improperly using visibility.” It also says visibility-impact thresholds
used during the first planning period (2007-2018) are likely too high and
should not be used for the second planning period.
Finally, the memo provides guidance on consideration of environmental
justice issues for the second planning period, a topic EPA has not
addressed in detail before with respect to regional haze. The memo’s
guidance remains limited, but it makes it clear that states have
considerable discretion to make regulatory decisions based on environmental
justice considerations. In particular, the memo notes that states can
consider environmental justice when reaching out to communities during the
SIP development process and to ensure adequate opportunity for feedback on
states’ proposed strategies. Perhaps most significantly, however, the memo
explains that states can use environmental justice considerations to inform
which sources to evaluate for controls and when determining the type and
stringency of control requirements.
Although EPA’s most recent memo on implementation of the regional haze
program does not expressly overrule or rescind preexisting guidance or
regulations, the memo can be viewed as interpreting the Clean Air Act and
the regional haze rules to limit certain flexibilities some states may be
attempting to use, many of which appeared to be supported by past EPA
statements. If a narrower interpretation of state authority prevails, EPA
may move to disapprove many regional haze SIPs and impose more burdensome
requirements through federal implementation plans.
While states continue to prepare their SIPs, potentially affected companies
should work to make sure SIPs are fully supported with strong
justifications based on the law. Once EPA begins to act on approving or
disapproving SIPs, those same companies will need to engage in the
rulemaking process to ensure fair implementation of the program and to
preserve their legal arguments if EPA goes too far.