Environmental Alert; BART is Coming

    View Authors August 2005
    Major facilities throughout the United States will soon be notified that additional pollution controls will be required to satisfy new Best Available Retrofit Technology (BART) standards under the Regional Haze Rule. This alert provides Squire Sanders' clients and friends a basic outline of the recent rules establishing how states will implement BART to effectively manage the impact on BART-affected sources. It is being distributed to those who have sources identified on Ohio's initial list of BART-eligible sources.

    What Is the Regional Haze Rule?

    Section 169A of the Clean Air Act requires "the prevention of any future, and the remedying of any existing impairment of visibility. . . from manmade air pollution" at any of 156 specified national parks and wilderness areas. Under this rule, states must develop implementation plans that (1) ensure reasonable progress towards eliminating manmade visibility impairment, (2) require installation of BART at certain major sources and (3) specify a long-term strategy for achieving the national goal.

    What Is BART?

    EPA regulations define BART as "an emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each pollutant . . . emitted." Pursuant to EPA's July 6, 2005 final rulemaking, BART limits are to be set on a case-by-case basis while considering the following factors:
    • Any pollution-control equipment in use at the source
    • The available retrofit control options
    • The costs of retrofit control
    • The remaining useful life of the source
    • Any energy and non-air environmental impacts associated with retrofit controls
    • The degree of anticipated improvement in visibility resulting from such controls

    The case-by-case application of these factors to individual facilities provides substantial room for informal advocacy before the rule is drafted, through formal comments on the proposed rule, and if necessary, by legal challenges to the final rule.

    Who Is Subject to BART?

    BART-eligible sources are major stationary sources from one of 26 identified source categories that have the potential to emit more than 250 tons per year of a visibility-impairing pollutant (NOx, SO2, PM10), and that began operation between August 1962 and August 1977. However, as explained below, meeting these threshold criteria does not automatically mean that BART controls will be required.

    How Will States Apply BART?

    EPA's July 6, 2005 final rule establishes a three-step process for state BART determinations. First, states must identify which sources are BART-eligible, given their vintage, industrial category and emissions. Most states (including Ohio) have already completed this threshold inquiry, and one or more of your facilities are on this list. Next, states must identify the subset of BART-eligible sources that are "reasonably anticipated" to cause or contribute to visibility impairment. Ohio has nearly completed this identification process and will soon send letters to those facilities it believes will need to install BART controls. Finally, states must identify what controls constitute BART for each eligible source using the factors identified above. Through studies conducted by the Midwest Regional Planning Organization, Ohio, Illinois, Indiana, Michigan and Wisconsin are jointly working to identify viable BART control alternatives. This three-step process must be complete in time for states to promulgate a compliant implementation plan no later than January 31, 2008.

    Alternatives to BART

    EPA has just issued a proposed rule clarifying the availability of certain "alternative methods" that states can adopt to satisfy BART instead of imposing source-by-source limitations. In this document, the EPA expressly recognizes that states may adopt a cap-and-trade program covering sources that would otherwise be required to install BART controls and describes the basic tenets of such a system. At least one regional planning organization is pursuing such a trading program. Historically, trading programs have provided a more cost-effective system for implementing emissions reduction programs. Members of the regional planning organization that includes Ohio have expressed concern about state resources needed to implement a trading program.

    Conclusion

    The BART-affected sources on Ohio EPA's list will be notified shortly. Early advocacy may enable those sources to reduce the burden of BART controls. Also, proactive, collaborative efforts by BART-affected sources may generate the resources that Ohio and its regional planning organization need to make alternative control schemes (e.g., trading) available for BART compliance. Squire Sanders is prepared to provide support for these efforts individually or collectively to ensure that the BART rules are cost-effectively implemented.

    If you have questions or concerns regarding how these developments will likely affect changes at your facility, contact any of the Squire Sanders lawyers listed in this update.