EPA Allows Some States to Use Emissions Trading in Cross-State Rule to Reduce Haze

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By Jessica Coomes  

The Environmental Protection Agency will allow a number of states to use the emissions trading program under the Cross-State Air Pollution Rule to reduce regional haze as an alternative to requiring best available retrofit technology for power plants.

EPA has determined that the cross-state rule will result in greater visibility improvements than best available retrofit technology.

The agency is issuing a regional haze final rule that also includes limited disapprovals of implementation plans for 14 states because those states relied on the cross-state rule's precursor program, the Clean Air Interstate Rule, to reduce emissions leading to the formation of haze.

In addition, the final rule includes federal implementation plans for several states that rely on the cross-state rule.

'Strong Legal Basis' Cited.

The cross-state rule requires power plants in 28 states to reduce interstate transport of nitrogen oxides and sulfur dioxide. The rule was set to take effect Jan. 1, but the U.S. Court of Appeals for the District of Columbia Circuit stayed the rule while litigation continues (EME Homer City Generation LP v. EPA, D.C. Cir., No. 11-1302, oral arguments 4/13/12).

In the preamble to the regional haze final rule, which EPA signed May 30, the agency said it is moving forward with the regional haze rule despite the stay, partly because the cross-state rule “has a strong legal basis.”

The cross-state rule replaces the Clean Air Interstate Rule, which the D.C. Circuit remanded to EPA in 2008 (North Carolina v. EPA, 531 F.3d 896, 67 ERC 1151) (D.C. Cir. 2008).

Substitutes Allowed.

The Clean Air Act allows states to substitute alternatives to source-specific best available retrofit technology to reduce regional haze if the alternative does a better job at improving visibility, EPA said.

EPA said 14 states had issued regional haze implementation plans that relied on the Clean Air Interstate Rule's cap-and-trade program, rather than on best available retrofit technology, to address power plant emissions of nitrogen oxides and sulfur dioxide: Alabama, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina, Virginia, and Texas.

In the final rule EPA disapproved those states' implementation plans because of their reliance on the Clean Air Interstate Rule.

In the proposed version of the rule, which EPA published Dec. 30, the agency also would have disapproved Florida's plan, but Florida was removed from the final rule because the state requested time to modify its state plan (250 DER A-7, 12/30/11).

In the May 30 final rule, EPA also issued federal implementation plans for 12 states: Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia. The federal plans will substitute the cross-state program for the Clean Air Interstate Rule program under the regional haze plans.

Rule Applies to Power Plants Only.

The final rule applies only to power plants and only to emissions of nitrogen oxides and sulfur dioxide. Other sources and other pollutants that affect regional haze are not subject to the rule.

EPA said a state may revise its regional haze implementation plan to incorporate the cross-state rule and the agency will withdraw its federal implementation plan or a state may remain subject to the federal implementation plan.

Earthjustice said that under the final rule, EPA “is attempting to substitute one clean-up program for another.”

“It's like using a broom to sweep your carpet; it just doesn't do the job, and more dirty and unhealthy air will result,” Sarah Saylor, senior legislative representative for Earthjustice, said in a statement May 31.

EPA posted the final rule on its website after signing it, and it will be published in an upcoming issue of the Federal Register.

By Jessica Coomes  

The May 30 final rule is available at http://www.epa.gov/airquality/visibility/pdfs/20120530finalrule.pdf.

For additional information, contact Martha Keating in the EPA Office of Air Quality Planning and Standards at (919) 541-9407 or keating.martha@epa.gov.

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