Our Insights

What’s Next for EPA’s Regional Haze Program?

February 19, 2018

By Aaron M. Flynn, Guest Writer
Hunton Andrews Kurth, LLP

This article was originally published in Currents, POWER’s quarterly Environmental newsletter.

With key personnel filling positions in EPA’s Office of Air and Radiation, interested parties have rightly focused on a handful of urgent, headline-grabbing issues, like repeal and possible replacement of the Clean Power Plan, the status of EPA’s methane rules for the oil and natural gas sector, reform of the New Source Review program, and implementation and potential changes to the national ambient air quality standards for ozone. It is also important not to lose sight of other key programs, how EPA is implementing them, and opportunities for reform. The regional haze program is one area that should be monitored and improved over the coming years.

The Clean Air Act establishes a “national goal” of eliminating any visibility impairment in certain National Parks and wilderness areas that is caused by “manmade air pollution.” The Act requires states to evaluate measures to achieve “reasonable progress” toward the national goal and, for a specified class of facilities, to identify “best available retrofit technology” or BART requirements. The statute sets out factors for states to consider in determining what requirements are appropriate to achieve reasonable progress and to satisfy BART.

EPA has developed general regulations to guide the states in making their BART and reasonable progress determinations. Those regulations and the D.C. Circuit both recognize that states have “broad authority” over regional haze determinations. Nevertheless, when implementing the program, EPA took a surprisingly activist approach. During the first planning period of the program (2007-2018), EPA disapproved many state plans and imposed its own, often significantly more stringent federal plans instead.

In January 2017, EPA issued a new set of revisions to the regional haze rules intended to update the program and advance new policies to govern implementation of the programs’ second planning period. As part of the rulemaking, EPA also extended the deadline for states to submit their new regional haze plans from July 31, 2018 to July 31, 2021. Challenges to the 2017 rule were filed by a number of states, industry parties, and environmental groups. Those challenges remain in the most preliminary of stages, as EPA has asked the D.C. Circuit to delay moving forward with the litigation while it considers whether it will revise the 2017 rule.

Wide shot of the downtown Los Angeles skyline bathed in smog. View from Griffith Park

So what should states and companies that may be affected by the regional haze program in the next planning period do now? First, they should engage in EPA’s possible reconsideration of the 2017 rule and think about appropriate changes to the program as a whole. Problems that companies and states experienced in the first planning period included unreasonable visibility improvement evaluation requirements and a one-size-fits-all methodology for assessing costs that frequently bore little resemblance to real-world figures. Identifying ways to alleviate the problems experienced before is a significant and rare opportunity.

Second, even though the next round of regional haze plans are not due until 2021, states and companies should begin the work needed to support those plans. In October, EPA released its preliminary modeling to support regional haze plan development. Despite the efforts put into that modeling, EPA did not attempt to address a number of key issues, like the impact of emissions from other countries and significant modeling uncertainties that will need further work at the state level. If states and affected companies wait to begin their work until any future rulemakings are completed or additional guidance is released, they may run into the same problems encountered during the first planning period: late-submitted plans that EPA may try to disregard and plans missing components EPA has deemed necessary for approval, opening the door to more federal plans.

Finally, it would be a mistake to assume that companies that were strictly regulated during the first planning period will escape a second round of requirements. EPA has stated that those facilities that were given emission limits before must be evaluated for further controls. Likewise, facilities and even entire industries that avoided regulation previously may very well be drawn into the program in the second planning period. Limits on the types of facilities that are subject to BART—the focus of the first planning period—do not apply to reasonable progress, and EPA has said, at least in draft guidance, that it expects states to evaluate 80 percent of all sources that contribute to visibility impairment. Devising strategies to implement appropriate regulatory fixes and develop defensible plans will be increasingly important as EPA searches for ways to reach the goal of zero pollution-based visibility impairment.

About the Author:

Aaron is a partner with Hunton Andrews Kurth, LLP law firm in Washington, D.C. He represents companies in major environmental litigation and regulatory matters across the country. Aaron’s clients include utilities, national trade associations, oil and gas companies, and manufacturers. His practice is focused on reducing and managing his client’s regulatory burdens, particularly under the federal Clean Air Act.