Class I Air Quality Related Values Kevin J. Finto Hunton & Williams APPA

1. Class I Air Quality Related Values Kevin J. Finto Hunton & Williams APPA Energy and Air Quality Task Force Washington, D.C. March 10, 2005 www.hunton.com

2. The Problem • To obtain an permit, must show compliance with increment and protection of air quality related values in Class I areas. • Class I areas are National Parks, Wilderness Areas, Monuments and Wildlife Refuge described in 40 CFR 52.21 (e) and listed in FLAG. • Air quality related values include visibility, soils and vegetation and endangered species Obtain A PSD permit must www.hunton.com

3. The Problem • Federal Land Manager has primary responsibility for protection of Class I areas • States and EPA have to coordinate with FLM but have final decision making role on Class I Areas • FLM on one hand and States/EPA on the other use different criteria and have different perspectives • Result is confusion, inefficiency and delay Obtain A PSD permit must www.hunton.com

4. Background information • Applicant must show emissions will not cause or contribute to Class I increment using modeling and objective criteria. • Modeling for ISC3C if Class I area is within 50 km and CALPUFF if Class I area is > 50 km distant. See 40 CFR Part 51 App W. • Visibility impairment is modeled as light extinction Obtain A PSD permit must www.hunton.com

5. Background information • Class I areas are located throughout the United States and the FLM takes a liberal view of what might affect them. Obtain A PSD permit must www.hunton.com

6. What the Regulations say: 40 CFR 52.21 (p) • State/EPA must send application to FLM if project emissions may effect a Class I area • FLM may comment on project including providing a visibility analysis • State/EPA has to consider FLM comments; if State/EPA disagrees, have to explain why in public notice on draft. 1 - Buffer Map of PSD Class I Areas Obtain A PSD permit must www.hunton.com

7. What the Regulations say: 40 CFR 52.21 (p) • State/EPA has to send draft permit to FLM who gets to comment with the public; FLM can make a finding of adverse impact. • If modeling shows the project will not cause or contribute to a violation of Class I increment, burden is on FLM to demonstrate adverse impact to AQRVs including visibility. Obtain A PSD permit must www.hunton.com

8. What the Regulations say: 40 CFR 52.21 (p) • If State/EPA concurs with FLM, it shall not issue the permit. • State/EPA may issue the permit over FLM adverse finding if State/EPA determines that project emissions will not result in an adverse impact to AQRVs including visibility. • FLM can appeal such a determination as any other citizen. 1 - Buffer Map of PSD Class I Areas Obtain A PSD permit must www.hunton.com

9. What the Regulations say: 40 CFR 52.21(b)(29) • “Adverse Impact to Visibility” • Visibility impairment which interferes with the management, protection, preservation or enjoyment of the visitor’s visual experienceof the Federal Class I area… • Visibility impairment means any humanly perceptible change in visibility (light extinction, visual range, contrast, coloration) from that which would have existed under natural conditions. Obtain A PSD permit must www.hunton.com

10. What the Regulations say: 40 CFR 52.21(b)(29) • …This determination must be made on a case-by-case basis, taking into account the geographic extent, intensity, duration, frequency and time of visibility impairment, and how these factors correlate with (1) times of visitor use of the Federal Class I area, and 2) the frequency and timing of natural conditions that reduce visibility. Obtain A PSD permit must www.hunton.com

11. What the Regulations say • In a nutshell, the determination • is Case-by-case; • considers frequency, extent and intensity of visibility impairment • considers geographic extent of vista • considers timing of impairment relative to visitation • considers natural factors that impair visibility((e.g. weather). Obtain A PSD permit must www.hunton.com

12. What is FLAG? • FLAG = Federal Land Managers Air Quality Related Values Workgroup • FLM is the Secretary of Interior (Deputy Secretary for Fish and Wildlife and Parks) and Secretary of Agriculture • Implementing Agencies are U.S Forest Service, U.S Fish and Wildlife Service and National Park Service. • Agencies developed guidance to promote consistency and manage expectations. Obtain A PSD permit must www.hunton.com

13. What FLAG says. • FLAG provides guidance on • visibility modeling • acid deposition • ozone modeling • Best Available Control Technology Obtain A PSD permit must www.hunton.com

14. What FLAG says. • As to visibility • See flow chart on page vi • If single source will contribute to impairment > 10% extinction FLM is likely to object • If source contributes > 0.4% to cumulative impact > 10 % extinction FLM likely to object • If single source contributes < 5% extinction FLM is not likely to object. Obtain A PSD permit must www.hunton.com

15. What FLAG says. • If single source contributes < 0.4% to cumulative impact > 10% extinction FLM is not likely to object. • FLAG recommends very conservative assumptions in CALPUFF modeling • FLAG uses a very pristine definition of natural background. Obtain A PSD permit must www.hunton.com

16. Differences between FLAG and Regulations • Rigid application of FLAG is not case-by case (and is unlawful also because it uses guidance as a rule). • Site Specific refinements in modeling make the predictions more accurate. • Meteorological data • Ammonia • Relative humidity • Background visibility Obtain A PSD permit must www.hunton.com

17. Differences between FLAG and Regulations • Regulations allow consideration of weather events that are reflected in modeling parameters (fog, rain). • Regulations allow for comparison of time of visibility extinction to visitation times (e.g. modeling may show low visibility at night due to high relative humidity but park is closed then anyway). • Although light extinction may be based on 100 km vistas, park may not have vista more than a few kilometers Obtain A PSD permit must www.hunton.com

18. Differences between FLAG and Regulations • Science is still developing on what level of light extinction is detectable. FLAG threshold of 5% is conservative. More recent science suggests 20% might be more reasonable. • There is no special role for FLMs in BACT analysis • Difficulty with deposition analysis, ozone modeling and endangered species ( a whole other symposium). Obtain A PSD permit must www.hunton.com

19. Fixes • Executive Oversight. (letter in Round-up) • Agency Rulemaking • Congressional Oversight/ Legislation (Clear Skies) • Judicial decisions Obtain A PSD permit must www.hunton.com