Regional Haze: EPA's Proposal to Improve
Visibility in National Parks and Wilderness Areas
Updated July 9, 1 998
James E. McCarthy, John E. Blodgett, and Larry B. Parker
Environment and Natural Resources Policy Division
American Law Division
On July 3 1, 1997, the Environmental Protection Agency proposed a new regulatory program
to improve visibility in the nation's national parks and wilderness areas. The program,
required by Sections 169A and 169B of the Clean Air Act, would require all 50 states to
develop long-term strategies to improve visibility by reducing regional haze. This report
provides background concerning regional haze and discusses issues that have been raised
concerning the proposed rule. Congress has held several hearings on the proposal, and has
expressed concern that the rule not be implemented in advance of the schedule for new air
quality standards on fine particulates (PM,,). In P.L. 105-178, enacted June 9, 1998,
Congress addressed this issue, by stipulating that plans implementing the regional haze rule
be submitted on the same schedule as those for PM2,5nonattainment areas. This report will
be updated as developments warrant.
Regional Haze: EPA's Proposal to Improve Visibility in
National Parks and Wilderness Areas
On July 31, 1997, the Environmental Protection Agency proposed a new
regulatory program to reduce "regional haze." The proposed program would require
the states to develop and implement long-term strategies to attain a congressionally
mandated goal of remedying the impairment of visibility in national parks and
wilderness areas resulting from man-made air pollution.
Regional haze results from the presence of small particles, generally ranging in
size from 0.1 to 1.0 micrometers in diameter, in the air. These particles absorb and
scatter sunlight, with the effect of reducing contrasts, washing out colors, and making
distant objects indistinct or invisible. Because of this pollution, the current visual
range in the East is only about 20 miles, about one-fifth of the range one could expect
in the absence of air pollution. In the West, visibility is better, ranging up to 90 miles,
but even there it is only half to two-thirds of its natural range.
Contributors to the regional haze problem include sulfates fiom fossil-fueled
power plants and smelters; nitrates and organic matter fiom the same sources, as well
as from cars and trucks; elemental carbon from forest fires, prescribed bums, and
diesel engines; and soil dust from unpaved roads, construction, and agriculture.
Because of their small size, the particles tend to remain suspended for long periods
of time and to travel long distances. Thus, addressing the problem will require
planning on a regional basis, and will involve measures in all 50 states.
The proposed regulations would require the states to develop plans to improve
visibility by one "deciview" (a measure of visibility) every 10 to 15 years. As a first
step, the states would be required to review major stationary sources of pollution to
iden* those potentially subject to Best Available Retrofit Technology (BART), as
required in Section 169A of the Clean Air Act.
The proposed rule was open to public comment until December 5, 1997. Since
then, EPA has been reviewing the comments it received and deciding what to include
in the final regulation. At least five groups of issues have arisen: 1) the potential
impacts on various economic sectors (with special concern for the continued use of
prescribed burning in agricuture and forestry); 2) the choice of methodology (i.e.,
"deciviews"), and whether improvement should be measured in terms of emission
reductions or visibility improvement; 3) what constitutes reasonable further progress,
as required by the Act -- in particular whether a goal of one deciview improvement
is sufficiently ambitious, or appropriate for all regions; 4) whether EPA paid
sufEcient attention to the work of the Grand Canyon Visibility Transport Commission,
which completed a five-year study of the visibility issue and made recommendations
in June 1996; and 5) federal-state issues, including the respective powers of federal
land managers and state governments. Congress has also expressed concern that the
regional haze rule not be implemented in advance of the schedule for new standards
on fine particulates; in P.L. 105-178, enacted June 9, 1998, Congress addressed this
issue, by stipulating that plans implementing the regional haze rule be submitted on
the same schedule as those for PM,,, nonattainment areas.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Nature of the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Efforts to Address the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Prevention of SignificantDeterioration . . . . . . . . . . . . . . . . . . . . . . . . 3
1977 Amendments to the Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . 3
Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1990Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
National Academy of Sciences Report . . . . . . . . . . . . . . . . . . . . . . . . 6
Grand Canyon Visibility Transport Commission . . . . . . . . . . . . . . . . . 6
111. The Proposed Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SIPRevisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
BART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Reasonable Further Progress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Regional Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. The Rule in Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Related EPA Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
V.Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Concern over potential impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Choice of Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
What Constitutes "Reasonable Further Progress" . . . . . . . . . . . . . . . 19
Grand Canyon Commission Recommendations . . . . . . . . . . . . . . . . . 21
Federal-State Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
List of Figures
Figure 1. Median Summer Visibility for SuburbanINon-urban Areas:
1974.1976, Displayed Using the Deciview Scale . . . . . . . . . . . . . . . . . 20
Regional Haze: EPA's Proposal to Improve
Visibility in National Parks and Wilderness
On July 31, 1997, the Environmental Protection Agency proposed a new
regulatory program to improve visibility in the nation's national parks and wilderness
areas. This "regional haze" program uses the authority of Section 169A of the Clean
Air Act, first granted the Agency in 1977, and reinforced by Section 169B in the Act's
This report provides background concerning the regional haze program and the
issues that have been raised concerning the proposed rule. The report is divided into
five sections. Section I discusses the nature of the visibility problem and the sources
of regional haze. Section 11 provides a brief history of legislative and regulatory
attempts to address the problem. Section III discusses the proposed rule. Section IV
places the rule in context, discussing how it relates to other EPA initiatives, including
revision of the air quality standards for ozone and particulates and the acid rain
program, and providing a brief discussion of benefits and costs. Section V discusses
five sets of issues that have been raised since the rule was proposed.
A formal public comment period on the proposed rule ended December 5, 1997.
Since then, EPA has been reviewing the comments received and deciding what to
include in the final regulation. Promulgation is not expected before late summer
1998. The rule would then be implemented over a multi-year period.
EPA faces significant choices in h a b i n g the regulations, with potential impacts
on a variety of economic sectors and regions. States will have decisions to make, too,
once the rule is final. As a result, the Congress is likely to retain an interest in the
program and its implementation.
I. Nature of the Problem
Impairment of visibility due to air pollution occurs throughout the United States.
According to the National Academy of Sciences,
...the average visual range in most of the western United States, including national
parks and wilderness areas,is 100-150km (about 60-100 miles), or about one-half
to two-thirds of the natural visual range that would exist in the absence of air
pollution. ... In most of the East, includmg parklands, the average visual range is
less than 30 km (about 20 miles), or about one-fifth of the natural visual range.'
This reduction in visibility is caused by the presence of small particles, generally
ranging in size fiom 0.1 to 1.0 micrometers in diameter, in the air. Such particles
absorb and scatter sun light. In doing so, they reduce contrasts, wash out colors, and
make distant objects indistinct or invisible. Especially in national parks and wilderness
areas, but more generally in any area dependent on tourism, a reduction in visibility
vitiates the experience sought by visitors and reduces the economic value of assets
related to tourist s e r ~ i c e s . ~
Some of the particles that create this reduction in visibility are emitted directly
to the atmosphere. Others form as a result of atmospheric reactions involving
gaseous precursors. Whatever their source, they tend to remain suspended for long
periods of time and to travel long distances, creating a widespread problem known as
The primary causes of regional haze are sulfates, organic matter, elemental
carbon (soot), nitrates, and soil dust. As noted in the National Academy of Sciences
The major cause of reduced visibility in the East is sulfate particles, formed
principally fiom sulfur dioxide (SOJ emitted by coal combustion in electric utility
boilers. In the West, the other four partxle types play a relatively greater role than
in the East. The causes and severity of visibility impairment vary over time and
fiom one place to another, depending on meteorological conditions, sunlight, and
the size and proximity of emission sour~es.~
Humidity also plays a role. Because moisture in the air can facilitate the
formation of fine particles in atmospheric reactions, visibility in the East would
generally be less than that in the arid West, even in the absence of air pollution.
Estimates of the natural visual range in the East are on the order of 90-100 miles,
versus 140-150 miles in the West. Because of pollution, however, the current visual
range in the East is only one-fifth of the natural range, whereas in the West it is half
to two-thirds what it would otherwise be.
'Committee on Haze in National Parks and Wilderness Areas, National Research Council,
National Academy of Sciences, Protecting Visibilityin National Parks and Wilderness Areas
(Washington: National Academy Press, 1993), p. 1. Hereafter cited as NAS Report.
'There may also be health benefits related to the reduction of fine particle pollution, but the
proposed regulations are aimed primarily at improving welfare, not health.
3NASReport, p. 2.
11. Efforts to Address the Problem
The federal government has had a long-standing interest in protecting national
parks against a variety of perceived threats, including impaired visibility. The goal of
Section 169A of the Clean Air Act, calling for the "prevention of any hture, and the
remedying of any existing, impairment of visibility" resulting from manmade air
pollution in national parks and wilderness areas, is consistent with the purpose of the
National Park Service Organic Act of 1916 which is: "To conserve the scenery and
the natural and historic objects and wildiife therein, and to provide for the enjoyment
of the same in such manner and by such means as will leave them unimpaired for the
enjoyment of hture generations."4
Prevention of Significant Deterioration. Legislativedevelopmentsthathave
led to the current attention to visibility and regional haze began with the Air Quality
Act of 1967. In that Act, Congress inserted into one of the hndamental purposes of
clean air legislation the phrase "to protect and enhance the quality of' the Nation's air
resources. In 1972, this phrase was used by the Sierra Club in a lawsuit against EPA
to argue that the Clean Air Act required EPA to disapprove any State Implementation
Plan that permitted "significant deterioration" of air quality. The district court agreed,
and rulings on appeal left the district court opinion i n t a ~ t .Thus,
~ EPA had to review
all State Implementation Plans (SIPS), disallow any that inadequately protected clean
air areas, such as national parks, and promulgate regulations to prevent future
significant deterioration of air quality in these areas. The resulting Prevention of
Significant Deterioration (PSD) regulations were promulgated in 1974, with
amendments in 1975.6 The regulations focused on preventing h t h e r deterioration
of air quality in pristine areas of the country by specifling how much increase in
pollution levels would be permitted. PSD regulation applied only to new sources of
air pollution and only to sulfiu dioxide and particulates.
1977 Amendments to the Clean Air Act. These PSD regulations for clean
air areas were codified, with some changes, as Part C of Title I in the 1977
Amendments to the Clean Air Act. The primary change was to single out for
maximum protection national parks and other important national sites (P.L. 95-95).
Later regulation by EPA added nitrogen oxides to the pollutants covered by the PSD
program7 Mandatory class I areas -those areas that receive the maximum amount
of protection -include most national parks, national wilderness areas, and national
memorial parks, currently 156 areas. In addition, the Congress added Section l69A
to address visibility impairment caused by existing sources of pollution in any
mandatory class I areas where visibility was an important value. Thus, PSD and
Section 169A act in tandem, with PSD controlling new sources of impairment, and
Section 169A controlling existing sources of impairment.
439 Stat. 535, Ch. 408, Act of August 25, 1916.
'Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972), affd., 4 Environment
Reporter (Cases) 18l5,2 Environmental Law Reporter 20656 (D.C. Cir. 1972), a d . by
equally divided Court sub. nom. Fri v. Sierra Club, 412 U.S. 541 (1973).
640 CFR 52.21.
753 Federal Register 40656 , October 17, 1988; 40 CFR Parts 5 1 and 52.
Implementation. Implementing these provisions protecting visibility has not
been easy, particularly Section 169A respecting existing sources. First, EPA had to
define what visibility was. In general, visibility impairment from human activities
manifests itself in two ways: (1) plume blight, where a clearly identifiable plume of
smoke emanates from one or more sources; and (2) regional haze, where a uniform
reduction in visual range occurs, or a layered discoloration by hovering bands of air
tinged brown, yellow, or red. Second, EPA had to promulgate regulations within 24
months of enactment to assure that State Implementation Plans (SIPs) required (1)
reasonable progress toward meeting the national goal mentioned earlier, and (2)
compliance with several very specific provisions, including Best Available Retrofit
Technology (BART) requirements for existing sources.
EPA promulgated rules in 1980 to address visibility impairment that was
"reasonably attributable" to a single source or small group of sources - i.e., plume
blight.8 As with many air pollution regulations, these visibility regulations are
implemented by states through SIPs. In general, the 36 states with mandatory class
I areas were required to revise their SIPs to assure reasonable progress toward the
national visibility goal. The major elements of the regulation were: (1) identifllng
existing sources causing visibility impairment and creating procedures for determining
which existing stationary sources should be subject to BART requirements; (2)
assessing potential adverse impacts from proposed new sources (or modified old
sources) and recommendiig remedial actions via the New Source Review process and
the PSD program; (3) developing a 10-15 year long-term strategy to make
"reasonable progress" toward the visibility goal; and (4) conducting visibility
monitoring in mandatory class I areas.
As noted, these regulations deal with plume blight only - regional haze
reduction was explicitly delayed until some future date. This lack of aggressive
implementation of Section 169A extended to the implementation of the 1980
regulations as well. After 35 of 36 states missed the September 1981 deadline for
final visibility plans, the Environmental Defense Fund sued the EPA in 1982 to
implement the plume blight regulations. The suit was settled in 1984 with the EPA
developing a phased-in schedule for compliance with a December 1986 deadline for
states to revise their SIPs to include controls on existing sources that hinder visibility
goals.9 This sequential implementation of plume blight regulations actually extended
through 1989. So far, the only BART installation to occur under the 1980
regulations has been the installation of sulfix dioxide scrubbers at the Navajo
Generating Station in 1991.lo
During the 1980s, EPAtsdecision to delay regulating regional haze was subject
to a variety of challenges, partly because of the relationship between regional haze and
acid rain (both involve sulfbr dioxide and nitrogen oxide emissions). In April, 1986,
Vermont submitted a visibility plan to EPA focused on visibility problems at Lye
'45 Federal Register 80084, December 2, 1980,40 CFR 5 1.300-51.307.
?EnvironmentalDefknse Fund v. Gearstick, No. C02-6850 (N.D. CA) (April 20, 1984). See
49 Federal Register 20647, May 16, 1984.
'56 Federal Register 50 172, October 3, 1991; 40 CFR 52.
Brook National Wilderness Area -the state's only class I area. Arguing that out-ofstate sources were responsible for impairing visibility (and thus impeding Vermont's
attempts to assure reasonable progress toward the national visibility goal), Vermont
proposed a long-term strategy to combat the effects of regional haze. This strategy
included a 48-state sulfate reduction plan and the disapproval of the SIPSof eight
upwind states that were major contributors to visibility impairment at Lye Brook. In
July, 1987, EPA decided to take "no action" on Vermont's regional haze proposal
because EPA had yet to act under Section 169A.11 Vermont sued. Although
sympathetic to Vermont's argument, the Second Circuit Court ruled in June, 1988,
that EPA's action was in accordance with federal law.12
During this same time period, seven states sued EPA to compel issuance of
regional haze regulations, under the citizen's suit provision of the Clean Air Act
(Section 304). The District Court for Maine ruled in July, 1988 that it did not have
jurisdiction in the matter, as EPA's 1980 rule represented a finalaction, and, therefore,
was reviewable only in the D.C. Cicuit Court within 60 days of the date of the rule.13
The states appealed the decision to the Circuit Court which affirmed the District
Court decision.14 In afKrming the District Court decision, the Circuit Court agreed
that EPA had a mandate under Section 169A to control the "vexing problem of
regional haze," but the Court concluded it did not have jurisdiction to compel EPA
1990 Amendments. EPA's inaction during the 1980s prompted the Congress
to act on visibility in the 1990 Amendments to the Clean Air Act. Those actions
included a new title IV controlling precursors of acid rain and regional haze,'' and a
new Section 169B. In some ways, Section 169B is a triggering mechanism to force
EPA to move on Section 169A with respect to regional haze. Specifically, the 1990
Amendments required EPA to establish a Grand Canyon Visibility Transport
Commission within 12 months of enactment (and other commissions upon its own
discretion or petition from at least two states). Commissions are required to assess
the scientific, technical, and other data available on visibility impairment fi-om
potential or projected emissions growth in their region. Based on those data, the
commissions are to issue a report within 4 years to EPA recommending what
measures, if any, should be taken to remedy such impairment. Within 18 months of
receiving a Commission's report, EPA is to cany out its responsibilities under Section
1694 including criteria for measuring "reasonable progress" toward the national goal.
Finally, states affected by any regulations promulgated under Section 169A are
required to revise their SIPSwithin 12 months of such promulgation.
"52 Federal Register 26973, July 17, 1987
v. Thomas. 850 F.2d 99 (2d Cir. 1988).
1 3 ~ a i nv.e Thomas. 690 F. Supp. 106 (D. Me. 1988).
I 4 ~ a i nv.e Thomas. 874 F. 2d 883 (1" Cir. 1989).
'As noted by Section 401(a)(l): "the presence of acidic compounds and their precursors in
the atmosphere and in deposition fiom the atmosphere represents a threat to naturd resources,
ecosystems, materials, visibility, and public health."
National Academy of Sciences Report. At the same time that Congress was
considering revisions to the visibility provisions of the Clean Air Act, early in 1990,
the National Research Council of the National Academy of Sciences established a
Committee on Haze in National Parks and Wilderness Areas. The committee,
consisting of 13 members, included experts in meteorology, atmospheric chemistry,
air pollution monitoring and modeling, statistics, control technology, and
environmental law and public policy, most of whom were drawn from academic
The committee examined patterns of visibility degradation and haze-forming
pollutant concentrations in various parts of the United States resulting from natural
and anthropogenic sources of gases and particles. It reviewed the scientific
understanding of haze formation and visibility impairment, as well as chemical and
physical measurement techniques. It evaluated methods for source identification and
apportionment, discussed control techniques, and considered policy implications.
In January 1993, the committee issued a final report, which reached eight broad
conclusions: 1) progress toward the national goal of reducing visibility impairment
will require regional control programs that operate over large areas; 2) strategies
should be adopted that consider many sources simultaneously on a regional basis; 3)
simple models are available now and could be used as the basis for designing regional
visibility programs; more complex models could be used to refine those programs
over time; 4) policy and strategies may need to be dierent in the West than in the
East; 5) improving visibility in class I areas (national parks and wilderness areas) will
improve it outside those areas as well; 6) reducing emissions to improve visibility will
help alleviate other air quality problems, and vice-versa; 7) achieving the national
goal of improving visibility will require a substantial, long-term program; and 8)
current scientific knowledge is adequate and control technologies are available for
taking regulatory action to improve and protect visibility. At the same time,
continued progress will require a greater commitment toward atmospheric research,
monitoring, and emissions control R&D.16
Grand Canyon Visibility Transport Commission. As noted above, in Section
169B(f) of the Clean Air Act, the Congress specifically required EPA to establish a
Visibility Transport Commission for the region affecting visibility in Grand Canyon
National Park. In June 1996, this commission (consisting of the Governors of
Arizona, California, Colorado, Nevada, New Mexico, Oregon, Utah, and Wyoming,
and the leaders of five Indian tribes) approved a set of recommendations for
improving Western vistas.17 There were 9 primary recommendations:'*
"Summarized from NAS Report, pp. 6-1 1
'7Recommendationsfor Improving Western Vistas, Report of the Grand Canyon Visibility
Transport Commission to the United States Environmental Protection Agency, June 10, 1996.
A ninth state, Idaho, was included in the region, but chose not to participate in the
"The recommendations are summarized in Ibid., pp. i-iii
To prevent and reduce air pollution, the commission
recommended policies based on energy conservation, increased energy
efficiency, and promotion of the use of renewable resources for energy
o Clean Air Corridors. The commission recommended careful tracking of
emissions growth that may affect air quality in corridors of clean air that are
sources of clear air at class I sites.
Stationary Sources. The Commission's Baseline Forecast anticipated that
current regulatory programs will reduce emissions of sulfbr dioxide from
stationary sources (power plants, smelters, and other industrial sources) 13%
by the year 2000, although additional measures under consideration might
reduce emissions 20-30%. In light of this uncertainty about the effects of
current programs and the fact that emissions are being reduced in the short
term without additional regulation, the Commission agreed to set regional
targets for s u b dioxide emissions in the year 2000. The ultimate targets
would be in the range of 50-70% reduction by the year 2040, but "interim
targets may also be needed to ensure steady and continuing emission
reductions and to promote investment in pollution prevention."Ig If the targets
are exceeded, this would trigger a regulatory program, probably including a
regional cap on emissions, with market-based trading.
Areas in and near Parks. The commission concluded that it lacked su££icient
data regarding the visibility impacts of emissions from some areas in and near
parks. "Pending fbrther studies of these areas, the Commission recommends
that local, state, tribal, federal and private parties cooperatively develop
strategies, expand data collection, and improve modeling for reducing or
preventing visibility impairment in areas within and adjacent to parks and
Mobile Sources. Recognizing that mobile source emissions are projected to
decrease, the Commission recommended capping emissions at the lowest level
achieved and endorsed the concept of a 49-state low emission vehicle.
Road Dust. The commission remained uncertain of the possible role of road
dust: "The Commission's technical assessment indicates that road dust is a
large contributor to visibility impairment on the Colorado Plateau. As such,
it requires urgent attention. However, due to considerable skepticism
regarding the modeled contribution of road dust to visibility impairment, the
Commission recommends further study ... prior to taking remedial action."21
Mexican Emissions. Mexican emissions, particularly sulfur dioxide,
contribute sigmticantly to visibility impairment on the Colorado Plateau. The
Commission called for "continued binational collaboration" on this problem,
and better monitoring and emissions inventories.
Fire. The Commission recommended programs to minimize emissions and
visibility impacts fiom prescribed fire, as well as to educate the public. In
particular, the recommendations included establishment of annual emission
goals for all fire programs, implementing enhanced smoke management
programs, and removing administrative barriers to the use of alternatives to
Future Regional Coordinating Entity. The Commission concluded that
there was a continuing need for an entity like the Commission to oversee,
promote, and support many of the recommendations in the final report. Such
an entity has subsequently been established: the Western Regional Air
The Clean Air Act requires the EPA Administrator to take action under Section
169A within 18 months of receipt of a Commission report. This requirement was
among the factors motivating proposal of the regional haze program at this time.
111. The Proposed Rule
The proposed rule appeared in the Federal Register on July 3 1, 1997.23Proposal
began a public comment period that was originally scheduled to run until October 20.
To solicit comments, the Agency also held a public hearing in Denver on September
18, 1997. At that hearing, numerous cementers requested extra time to submit
comments. As a result, EPA extended the comment period 6 weeks, to December 5.
SIP Revisions. As proposed, the rule would require all 50 states to submit
revised State Implementation Plans (SIPS) within 12 months of the rule's
promulgation, with W h e r revisions due 4 years after the initial revision and every 3
years thereafter. The SIP revision must contain a long-term strategy that
demonstrates how measures implemented by the state will improve visibility in each
class I area within the state and in class I areas outside the state that may be affected
by the state's emissions. As described W h e r below, the SIP must also identifl
facilities to be subjected to "best available retrofit technology."
Many states, particularly in the Midwest, do not have class I areas (i.e., the
national parks and wilderness areas that the rule is designed to protect), but EPA has
included all states under the scope of the rule because the fine particles that cause
regional haze can travel hundreds of miles.
BART. The Clean Air Act requires the installation of best available retrofit
technology (BART) on major stationary sources of pollution in existence on the date
"Ibid., pp. 47-50.
2362 Federal Register 41 138, July 31, 1997. For an overview, see http:/lttnwww.
of enactment (1977), but not more than 15 years old as of that date. BART is less
well-defined than other Clean Air Act terms, in part because it has only been used
once in the 20 years since enactment (to impose controls on Arizona's Navajo
Generating Station in 1991).
The statutory definition of BART stipulates numerous factors to be used in
determining what BART is and to what sources it should be applied, including costs
of compliance, energy and nonair quality environmental impacts, the degree of
improvement in visibility which may reasonably be anticipated to result from the use
of the technology, and such site-specific factors as the remaining usehl life of the
source and the nature of any pollution control equipment in use at the source.
As part of the SIP revision process, states would be required to identifl existing
stationary facilities that are potentially subject to the imposition of BART. Such
facilities are defined in Section 169A of the Act and 40 CFR 5 1.301(e). Under the
statute, they include stationary sources that were placed in operation between 1962
and 1977 and emit at least 250 tons per year of any air pollutant. There are 26
industrial categories listed in the Code of Federal Regulations as potentially subject
to BART requirements, including electric utilities, smelters, petroleum refineries, and
kraft pulp mills.
Regulations would not be imposed on these industries immediately. Rather, the
regulations would give states 3 years after promulgation of the rule to "evaluate
BART for applicable sources." The states would then have an additional 2 years to
address BART requirements in their State Implementation Plans. EPA would take
up to 6 months to determine whether a SIP is complete and an additional 12 months
to approve or disapprove the plan, with BART to be implemented "no later than five
years after plan approval" -- the autumn of 2009, if all goes smoothly.
EPA also proposed, however, that states preparing SIPs for fine particulate
matter (PM2,,)need not submit the regional haze SIP revisions until the required date
for submittal of the PM2., revisions. Because of the need to establish a monitoring
network and collect 3 years of monitoring data before the states identifl PM2.,
nonattainment areas and begin the development of SIPS, the BART implementation
deadline could slip an additional 5 years in these states, to 2014.24In P.L. 105-178,
enacted June 9, 1998, Congress codified this proposal and also extended deadlines for
areas not designated nonattainment. The enacted language (in Section 6 102(c)(2)
of the Transportation Equity Act for the 21" Century) stipulates that SIPs
implementing the regional haze rule be submitted on the same schedule as those for
PM,, nonattainment areas. In all other areas (i.e., those designated "attainment" or
"unclassifiable" for PM2.,), SIPs are to be submitted one year after such designation.
This would probably imply a BART implementation deadline of 2012 in these areas.
Reasonable Further Progress. In addition to requiring the states to consider
imposition of BART, the regulations would set "presumptive reasonable progress
2 4 ~ oardiscussion of the PM2,5SIP deadlines, see Air Quality: Background Analysis of EPA's
1997 Ozone and Particulate Matter Standards, CCRS Report 97-8 ENR, June 19, 1998, pp.
22-23 (note 54).
targets," requiring the states to prevent visibility degradation on the least impaired
days and to improve visibility on the most impaired days.
The progress targets are expressed in terms of "deciviews." A deciview is to
vision what a decibel is to sound. As defined in the proposal, it is an index of
atmospheric haze "that expresses uniform changes in haziness in terms of common
increments across the entire range of conditions, fiom pristine to extremely impaired
environments." A one deciview change is "a small but noticeable change in haziness
under most circumstances...."25
As proposed, the rule would require each state to develop a long-term strategy
that addresses regional haze visibility for each class I area within the state and each
class I area outside the state which may be affected by emissions fiom within the state.
The areas outside the state are to be defined in consultation with the appropriate
federal land managers. The "long term" to be addressed by the strategy is defined as
either 10 or 15 years (the Agency is seeking comments on the choice of time period).
The strategy must provide for an improvement over the long term period of 1.0
deciview in the average visibility on the 20% most impaired days, and no degradation
(i.e., less than a 0.1 deciview deterioration) in the average visibility on the 20% least
These reasonable further progress targets are presumptive, rather than
mandatory: under the proposed rule, states can, if they wish, propose alternate
progress targets. If they do so, however, they must provide a justification for the
alternate target addressing the statutory factors used in identifling BART (availability
of technology, cost of compliance, etc.) and demonstrate the justification to the
satisfaction of EPA.
Beginning 5 years after promulgation of the rule and continuing every 3 years
thereafter, states must review their progress and revise their plan as appropriate.
Regional Cooperation. The proposed regulations presume a great deal of
regional cooperation. Coordination with other states and federal land managers is
mentioned fiequently in the proposed rule. In most cases, a state will not be able to
determine on its own its contribution to regional haze, but must coordinate
monitoring, modeling, and strategies with federal land managers, other states, and
The rule also stipulates that measures to reduce emissions from sources
contributing to regional haze "should be consistent with strategies developed in
conjunction with other States through regional planning processes to address related
2 5 ~ hquoted
material is from Section I.F. of the preamble to the proposed regulation at p.
4 1145 of the July 3 1, 1997 Federal Register notice. The actual definition appearing on p.
4 1157 at 40 CFR 5 1.301(bb) uses similar language and goes on to provide a mathematical
formula for calculating deciviews based on atmospheric light extinction coefficients. As the
explanatory material notes, "the deciview is a means of expressing atmospheric light
extinction,just as visual range is an expression of atmospheric light extinction. All three of
these visibility metrics are mathematically related."
air quality issues," a reference to the regional planning necessary to combat ozone
transport and to implement measures addressing EPA's new ambient air quality
standards for ozone and fine partic~lates.~~
IV. The Rule in Context
Related EPA Programs. While the Clean Air Act provides specificprograms
for protecting visibility in Sections 169A and 169B, other CAA programs to control
air pollutants can reduce emissions that adversely affect visibility. Five of the most
important are National Ambient Air Quality Standards, Prevention of Significant
Deterioration, acid rain controls, New Source Pefiormance Standards for stationary
sources, and motor vehicle emission controls.
National ambient air quality standards (NAAQS) establish maximum levels
of designated pollutants to protect health (primary NAAQS) and public welfare
(secondary NAAQS). Pollutants for which NAAQS have been set are
particulate matter (PM), s u l k oxides, nitrogen dioxide, ozone, carbon
monoxide and lead. The Act requires states to implement plans (State
Implementation Plans, or SIPS) to meet primary, health-based NAAQS by
federally enforceable deadlines; secondary standards do not include such
deadlines. In these plans, states have wide latitude to determine which sources
must reduce emissions -- so long as the NAAQS is met. Visibility is explicitly
included among the values to be protected by secondary NAAQS ($5 lOg(b)(2)
and 302(h)). EPA recently revised the particulate matter (PM) and ozone
NAAQS, primarily to address adverse health effects; the net effect of the new
primary standards for fine particulates (PM,,,) and ozone will be to require
further reductions in emissions of particulate matter and ozone precursors.
Because these pollutants also affect visibility, EPA included an analysis of the
impacts of the proposed regional haze rule in a combined regulatory impact
statement (RIA) for the final PM and ozone NAAQS issued in July 1997.
Moreover, in its discussion of the visibiiity rule, EPA emphasizes at several
points its effort to coordinate the visibility requirements with the implementation
of the ilne particulate rule: "The planning schedule for the long-term strategy has
been developed to facilitate integration with State planning for the PM and
Ozone NAAQS. Similarly, EPA intends to address specific visibility emissions
control strategies in more detail in conjunction with the PM and Ozone NAAQS
26For an explanation of the ozone and fine particulate rules, see CRS Report 97-8, Air
Quality: Background Analysis of EPA's 1997 Ozone and Particulate Matter Standards.
27EPA,Regional Haze Regulations, 62 Federal Register 4 1142, July 3 1, 1997. Also, "In
light of EPA's intent to foster coordinated planning and implementation of the regional haze
requirements proposed and the new PM2.5 while still addressing the need to ensure reasonable
progress in addressing visibility impairment, EPA is also proposing to allow States preparing
nonattainrnent plans for iine particulate matter (PM2.,) to submit their regional haze emissions
control strategy SIP revisions by but not later than the required date for submittal of the
State's PM,., attainment control strategy SIP revisions" [Ibid., p. 41 1511. Similarly, EPA
foresees "ultimate integration of monitoring data from the new PM2.5monitoring network and
Prevention of significant deterioration (PSD) (Part C, Subpart 1 of Title I of
the Act) is a program to protect air quality where ambient concentrations of
pollutants are better than required by NAAQS. The provision classifies areas
as to the amount of degradation allowed. All international parks, national parks
larger than 6,000 acres, and national memorial areas and wilderness areas larger
than 5,000 acres are mandatory class I areas -- those for which the least
increment of pollution is allowed.28 Most other areas are classified class 11,
which allows moderate degradation. Pollutants subject to PSD increments
include PM, sulfir oxides, and nitrogen oxides -- all of which affect visibility.
Major new sources in PSD areas must undergo preconstruction review and must
install "best available control technology" (BACT); state permitting agencies
determine BACT on a case-by-case basis, taking into account energy,
environmental, and economic impacts. More stringent controls can be required
if modeling indicates that BACT is insufficient to avoid violating an allowable
PSD increment or the NAAQS itself. Because visibility is such an important
value in class I areas, the visibility sections of the CAA constitute a subpart
under the PSD program.
Acid rain controls added to the CAA in 1990 (Title IV) protect natural
resources, ecosystems, materials, visibility, and public health ($401(a)(l)) by
reducing emissions of sulfir oxides and nitrogen oxides -- reductions required
even if NAAQS are being met. These reduction requirements fall primarily on
utilities, mostly in the eastern portion of the country. The acid rain control
program establishes a two-stage process to reduce emissions of sulfir oxides by
10 million tons and nitrogen oxides by 2 million tons from 1980 levels by the
New source performance standards ($1 11) ensure adoption of best available
control technologies (BACT) on all new sources regardless of location, even
where primary NAAQS are being met; these standards apply to several
pollutants contributing to regional haze, including particulate matter, sulfur
oxides, and nitrogen oxides. The provision requires these new sources to install
the best system of continuous emission reduction that has been adequately
demonstrated. In making this assessment, the CAA requires EPA to take into
account "the cost of achieving such reduction and any nonair quality health and
environmental impact and energy requirements" ($ 111(a)(l)). Also, the
provision explicitly permits EPA to "distinguish among classes, types, and sizes
within categories of new sources for the purposes of establishing such standards"
($11l(b)(2)). To take into account technological improvements in control
technologies, the Act requires EPA to review and, if appropriate, update the
standards of performance every 8 years, unless readily available information
indicates such a review is unnecessary. The utility boiler NSPS for sulfur
the visibility monitoring network ...." [Ibid., p. 4 11521.
28An"increment" is the "maximum allowable increase" over baseline concentrations. For PM
and SO,, these increments are set by law. For example, for a class I area, the maximum
allowable increase in concentration of PM is 5 microgram per cubic meter annual geometric
mean, and 10 micrograms per cubic meter for the 24-hour maximum.
dioxide is currently under review and an updated utility boiler NSPS for nitrogen
oxides has been propo~ed.'~
Motor vehicle emission control requirements and nonroad engine
standards (Title LI) regulate tailpipe emissions, including nitrogen oxides and
volatile organic compounds that aRect visibility; and also establish related
controls, for example on gasoline volatility and emissions from he1 handling and
auto refbeling. These standards apply in all 50 states.
All these air pollution control programs,30although imposed primarily for reasons
other than the protection and improvement of visibility, nevertheless will definitely
contribute to that goal by controlling pollutants that diminish visibility by causing
The existence of these other programs that reduce emissions of pollutants
impairing visibility means that visibility is likely to improve even while debate
continues over the goals and requirements EPA is proposing for addressing regional
haze. However, while visibility improvements may be marked in some areas, it is
likely that emissions reductions required by these other programs will be insufficient
to improve visibility sigdicantly in numerous areas, especially in the West. Where
visibility goals remain unmet, additional pollution control programs are likely to create
tensions, as sources that successllly reduce emissions so as to comply with NAAQS
implementation plans, acid rain controls, andlor new source performance standards
may object to any W h e r emission control requirements on the grounds that they
chose the most cost-effective way to meet those prior requirements, and more
controls would be costly and inefficient.
Costs. Because of the overlaps among control regimens affecting emissions of
pollutants that cause regional haze and impair visibility and because the proposed rule
would allow states to adjust targets to parallel ozone and PM NAAQS programs and
would give broad discretion to states in determining control measures to meet
visibility requirements, it is very diflicult to isolate prospective costs of a regional haze
control program. EPA's analysis31is confined to the 141 class I areas located in 121
counties in the 48 contiguous states. EPA projects that, in order to meet a
presumptive target of improving the most impaired days (average of 20% highest
days) in 2010 by 1 deciview, 76 of 121 class I area counties would need reductions
beyond those achieved by then to meet the PM2.5NAAQS. If the goal were 2015,
58 mandated class I area counties would need additional controls. Virtually all the
areas needing further controls would lie west of the Mississippi. Largely because of
the acid rain control program, all 29 class I counties in the Northeast, Midwest, and
"62 Federal Regrster, July 9, 1997, pp. 36948-36963.
-or a list of major CAA requirements that EPA considered in modeling emissions related to
the PM and ozone NAAQS, see EPA, Regulatory Impact Analysesfor the Particulate Matter
and Ozone National Ambient Air Quality Standarh and Proposed Regional Haze Rule, July
16, 1997, Table 4.5, p. 4-20.
31EPA,Regulatory Impact Analysesfor the Particulate Matter and Ozone National Ambient
Air Quality Standards and Proposed Regonal Haze Rule, July 16, 1997, Chapter 8.
Southeast would meet the 2015 target and only 1 Southeast county would not attain
the 20 10 target.
EPA estimates that regional haze controls would cost $0 if the target does not
go beyond the ozone and PM NAAQS implementation plans to a maximum of $2.7
billion per year (in 1990 $) for additional controls to meet the presumptive 2010
goal.32 This analysis shows, too, that even with additional controls some areas would
still f d short of EPA' s alternative 20 10 or 20 15 targets (28 counties for 20 10 and 17
for 2015); these areas would be concentrated in the south central and west regions,
particularly in Arizona and southern California.
Benefits. EPA estimates that the benefits of the proposed regional haze control
program range from $0 if the target does not go beyond the ozone and PM NAAQS
implementation plans to a maximum of $5.7 billion annually for the presumptive 20 10
This $5.7 billion benefit is not, however, all attributable to the value of
visibility improvements per se: it is the sum of the upper range estimates for visibility
($0.57- 1.13 billion), incremental health benefits attributable to pollutant reductions
beyond those being implemented for meeting NAAQS ($1.1-4.5 billion), plus
consumer cleaning cost savings of $0.03 billion.34
At least five sets of issues have been raised in the wake of EPA's proposal: 1)
the potential impacts on industry and other economic sectors (with special concern
for forestry and agriculture, where the use of prescribed burning is an important
management tool); 2) the choice of methodology (i.e., "deciviews"), and more
broadly whether improvement should be measured in terms of emission reductions or
visibility improvement; 3) what constitutes reasonable further progress, as required
in the Act -- in particular whether a goal of one deciview improvement is sufficiently
ambitious or appropriate for all regions of the country; 4) whether EPA paid
suflicient attention to the work of the Grand Canyon Visibility Transport Commission;
and 5) questions concerning federal and state government relations, in particular the
authority of each level of government vis-a-vis the other, as well as the relationships
between federal or state regulators and federal land managers. This section reviews
each of these issues in turn.
Concern over potential impacts. As previously noted, it is difficult to project
specific private sector impacts of the proposed visibility rule, since states not only
bear primary responsibility for establishing control requirements but also are given the
option of adjusting the goal. Moreover, the proposal presumes that many
requirements will develop through &re regional agreement^.^^ As a result, EPA's
341bid.,pp. 12-49 and 12-66.
of the proposed regulation notes that the application of visibility program
to all states "should not be interpreted by the States to mean that they will necessarily have
impact assessment takes a very broad-brush approach to estimating impacts and costs;
however, some commentators on the rule have been more forthright in speculating on
As a practical matter, the first impacts of requirements derived fiom visibility
regulations will probably occur in the West. This is because the acid rain program in
the East will be reducing sulfUr oxide emissions substantially over the next 10 years,
and they are the primary cause of visibility degradation east of the Mississippi. In the
West, existing CAA requirements will not be reducing the pollutants degrading
visibility as much, meaning that controls specifically designed to improve visibility can
be expected to come into play there sooner than in the East.
Stationary Sources. The EPA proposal would set in motion a process that
could result in the imposition of "Best Available Retrofit Technology" (BART) on
existing stationary sources.36The BART requirements of the
(listed at 40 CFR
5 1.301(e)) could affect 26 source categories (e.g., electric utilities, smelters,
petroleum refineries, and kraft pulp mills) which have the potential to emit 250 tons
per year of any air pollutant and which began operating between 1962 and 1977.38
EPA's proposal would require states to inventory sources potentially subject to
BART within 1 year of promulgation of the rule, and then would give the states 3
years to complete evaluation of BART for applicable sources (i.e., probably by
sometime in 2001). It would remain up to states to determine which, if any, candidate
sources would actually have to install BART.
There has been some complaint that EPA's proposal overemphasizes BART
controls relative to controls on other sources of pollutants impairing visibility. The
western Governors, as a group, prefer market-based approaches rather than BART
for the control of stationary sources. The BART procedure is specified in Section
1694 however, and is the only specific regulatory tool mentioned in the section. As
a result, EPA had little choice but to require the states to use it; to fault the Agency
for doing so is to ignore the mandate that Congress imposed.
Even so, imposition of BART is to be left largely to the discretion of the states,
who will implement the requirement through the SIP process. The proposed rule
does not require the imposition of BART on all sources.
to adopt control strategies for regional haze immediately. Instead, it means that a State
subject to the program first should participate in a regional air quality planning group ...."
EPA, Regional Haze Regulations, 62 Federal Register 4 1145, July 3 1, 1997.
36See, for example, the statement of Michael 0. Leavitt, Governor of Utah, before the
Subcommittee on Forests and Public Land Management, Committee on Energy and Natural
Resources, U.S. Senate, October 28, 1997.
3 7 ~ e"Plan
Revisions to Address Best Available Retrofit Technology (BART)" in EPA,
Regional Haze Regulations, 62 Federal Register 4 1149, July 3 1, 1997.
38After1977, these sources would have been subject to the new source review requirements
Forestry and Agriculture. Another potential area of impact involves both the
private and public sectors: prescribed burning. In agriculture, fire is used to remove
stubble and grass; in forestry, it is used to control brush and to diminish &el buildup.
Smoke from prescribed burning and from wildfires contributes to visibility
impairment, and the 1980 visibility regulations included a requirement that states
consider smoke management techniques for agricultural and forestry burning in
developing long-term strategies for visibility protection. With the new, proposed rule,
concern has been expressed that the EPA regulations could hinder prescribed burning
in forests, with the potential effect of increasing damages from wildfires. Conversely,
if prescribed forest burning were not impeded, then other sources of pollutants
impairing visibility would necessarily be subject to more stringent controls (including,
perhaps, controls on agricultural burning) to compensate for the impairment of
visibility resulting fiom forest burning.39
EPA's position is that sound fire management of prescribed burning is possible,
and the agency is working jointly with states and the land management agencies in the
Departments of Agriculture, Defense, and the Interior on a policy for managing the
impacts of prescribed fires. The Agency released an Interim Air Quality Policy on
Wildland and Prescribed Fires, April 23, 1998. Under the policy, EPA encourages
states to develop smoke management plans, and, as an incentive, says that it will not
count exceedances of air quality standards that result from prescribed or natural fires
in determining an area's attainment status if the state has a smoke management plan
in placea Overall, it remains uncertain what, if any, impacts the proposed regulation
will have on prescribed burning, or on agriculture and forestry more generally,
particularly since it will be the states, individually or regionally, that determine local
Small Businesses. EPA has certified that the proposed rule will not have a
significant impact on small businesses, because the states will be exercising
"substantial intervening discretion in implementing the proposed rule."42 This finding
does not mean there will be no small business impact, although impacts are
speculative; rather, by claiming that only subsequent state implementation would
affect small business, EPA seeks to avoid procedural requirements that would
otherwise be imposed by the Small Business Regulatory Enforcement Fairness Act
(SBREFA). Nonetheless, EPA has undertaken small business outreach efforts on the
39Statement of Greg E. Walcher before the Subcommittee on Forests and Public Land
Management, U.S. Senate, Hearing: Impact of Regional Haze Rules on Federal Land
Management, Oct. 28, 1997.
40"EPARecommends States Adopt Programs for Managing Smoke fiom Prescribed Fires,"
Daily Environment Report, May 20,1998, p. A-2. The policy can be found on EPA's website
41Arelated issue is the extent to which prescribed burning can be controlled by the
states if it occurs on federal land. For a discussion of this issue, see p. 23 below.
42EPA,Regional Haze Regulations, p. 86.
impacts of the PM and ozone NAAQS and the regional haze rule -- efforts that largely
parallel the SBREFA requirement^.^^
Mobile Sources. The Grand Canyon Visibility Transport Commission report
recommended additional attention to controlling mobile source emissions, particularly
endorsing the concept of a 49-state low emission vehicle whose emissions would be
substantially less than those allowed by then-current regulations. Mobile source
emissions are directly regulated by Title 11 of the Clean Air Act, and are outside the
purview of Section 169A.
At the time of the Commission's recommendation, EPA did not have authority
to require lower emission standards prior to the year 2004. Nevertheless, in February
1998, EPA, the auto industry, and a group of Northeastern states reached agreement
on a voluntary National Low Emission Vehicle (NLEV) program, which will be
implemented in 8 Northeastern states and the District of Columbia in 1999, and in the
rest of the states two years later."" This agreement implements the Commission's
recommendation and essentially removes this issue from fhther discussion in the
current regional haze debate.
Unpaved Roads. The Grand Canyon Commission also noted that models
attribute signiscant impairment to visibility on the Colorado Plateau from road dust -a finding that suggests paving unpaved roads could be an effective control measure.
However, many question the technical accuracy of this finding, and the Commission
gave high priority to further research on the issue.
Mexican Sources. Finally, particularly in the Southwest, emissions from
Mexican sources may significantly contribute to visibility impairment. The visibility
regulation does not provide any mechanism for addressing this issue directly, but
several U. S.-Mexican agreements provide for cooperation in solving environmental
problems of the border region -- including attainment and maintenance of primary and
secondary NAAQS.~' Such cooperation could lead to controls on major Mexican
sources of sulfUr oxides, particularly smelters andlor coal-fired power plants.
Choice of Methodology. A second set of issues raised in debate over the
proposed rule concerns the methodology chosen by EPA to be the measure of
progress in improving visibility. As explained earlier in this report, the rule sets a
target of improving visibility by 1.0 deciview over either a 10 or 15-year period. EPA
requested comments concerning both the choice of time period and the proposed use
of deciviews as the means of measuring visibility improvement.
4463Federal Register 11374, March 9, 1998.
the "Agreement between the United States of America and the United Mexican
States on Cooperation for the Protection and Improvement of the Environment in the Border
Area (La Paz Agreement)"; an annex to this agreement was used by EPA as the vehicle for
implementing §815 of the CAA, "Establishment of Program to Monitor and Improve Air
Quality in Regions along the Border between the United States and Mexico" (added by the
1990 Clean Air Act Amendments). See, EPA, US-Mexico Border XYI Program
Framework Document (October 1996 [EPA 16O-R-96-003]), Appendix I.
A deciview is a small but noticeable change in haziness, determined by use of a
mathematical formula that uses logarithmic values of atmospheric light extinction
coefficients. The term was coined by Marc Pitchford of the National Oceanic and
Atmospheric Administration (NOAA) and Wfiam Malm of the National Park Service
. ~ ~ idea
in a 1994 article that appeared in the journal Atmospheric E n ~ i r o n m e n t The
behind the use of deciviews is that changes on the scale have a linear relationship to
human perception: i.e., a change fi-om 10 to 11 and a change from 30 to 3 1 are both
small, perceptible changes to a human observer. The other available measures (such
as light extinction or visual range) "do not express perception linearly. For example,
a 5-mile change in visual range can in some cases be very significant, such as a change
from 5 to 10 miles in an impaired environment, whereas it may be barely perceptible
on a clearer day (such as from 95 to 100 miles). "47
EPA argues that use of this measure as the way of defining reasonable progress
makes sense "because of the importance that progress ... be measured in terms of
'perceptible' changes in visibility, and due to the simplicity of its usehl scale.'I4' It also
conforms closely to the recommendations of the National Academy of Sciences,
whose Committee on Haze, writing before the appearance of Pitchford and Malm's
article, concluded that existing measures of visibility, such as visual range, were not
well-suited to measuring the "vague and qualitative" definition of visibility impairment
in the Clean Air Act. The NAS Committee recommended that an index of visibility
impairment be developed:
The ability to make quantitative connections between optical properties of the
atmosphere and human judgments of visibility is still in the developmental stage
because of the complexity of the physical and psychological phenomena. To
e visibility impairment, an index must be developed that can incorporate the
complexity of those phenomena; the index also must be understandable and useful
to the general public and policy makers as well as to scientific researchers.
Because impairment is based largely on human judgments of the visual
environment, the human element must be incorporated in the development of such
an index. In addition, the index must be based on properties of the physical
environment that can be readily measured and monitored to enable enforcement of
air quality standards4'
Not everyone agrees that the deciview approach is the appropriate one, however.
Gov. Michael Leavitt of Utah, testiflmg to a Senate subcommittee on behalf of the
Western Governors' Association, argued that:
Visibility improvement or "reasonable progress" should not be based strictly on a
visibility standard, a quantitative deciview measurement. Given the current state
of the science and technical air quality management tools as well as the inherent
L. Pitchford and William C. Malm, "Development and Applications of a Standard
Visual Index," Atmospheric Environment, Vol. 28, No. 5, 1994, pp. 1049-1054.
Haze Regulations, Preamble, 62 Federal Register 41 145, July 3 1, 1997.
4?NASReport, p. 354.
nature of visibility management in the West, visibility measurement should be used
as a tool but not a standard.50
Instead, Leavitt and others would prefer to use emissions-based measures for
determining progress. Such measures would be more in line with traditional air
pollution control programs, and have the advantage of being more predictable for
industry and other sectors subject to compliance.
What Constitutes "Reasonable Further Progress". Whether or not one
agrees with the methodology used to measure progress, a related issue concerns the
amaunt of progress that states should be asked to make. EPA has defined reasonable
fiuther progress, in all areas of the country, as a 1.0 deciview improvement in visibility
every 10 to 15 years. Such a target implies that visibility will continue to be severely
degraded for long periods of time in some parts of the West and particularly in the
East. p o r a map showing current levels of visibility in various regions of the United
States, see Figure 1.)
In testimony before a Senate subcommittee, Marcia Frienz of the National Parks
and Conservation Association (NPCA), stated:
Currently, eastern states face a 15 deciview impairment from non-natural haze.
Even under the stricter one deciview per 10 years goal, it would take the region
150 years to remedy its severe haze pollution problem! NPCA does not believe
this is reasonable progress, particularly when one considers that the man-made
haze problem has been created over the last 50 years. For that reason, we
recommend that a three &view rate of improvement over 10 years be adopted for
An Associate Director of the National Park Service, speaking to the same
subcommittee, was less direct in his recommendations, but painted an even more
negative picture of the dimensions of the problem:
EPA's suggested "reasonable progress" target for the most impaired days needs to
be closely examined as it would allow 220-330 years to achieve the national
visibility goal in those areas, such as Shenandoah and Great Smoky Mountains
National Parks, where visibility is currently very degraded. In addition, the
proposed criteria could allow for a slower rate of progress than is actually being
achieved in many areass2
50Staternentof Michael 0 . Leavitt, Governor of Utah, befbre the Subcommittee on Forests and
Public Land Management, Committee on Energy and Natural Resources, U.S. Senate,
October 28, 1997, p. 5.
"Statement of Marcia Frienz, National Parks and Conservation Association, before the
Subcommittee on Forests and Public Land Management, Committee on Energy and Natural
Resources, U.S. Senate, October 28, 1997, p. 3.
"Statement of Dr. Michael Soukup, Associate Director, Natural Resource Stewardship and
Science, National Park Service, before the Subcommittee on Forests and Public Land
Managema Committee on Energy and Natural Resources, U.S . Senate, October 28, 1997,
Figure 1. Median Summer Visibility for SuburbanINon-urban Areas:
1974-1976, Displayed Using the Deciview Scale
Note: Increases on the deciview scale correspond to greater impairment of visibility. Zero
on the scale represents visibility in particle-free air, a condition that is not achievable in most
cases, even in the absence of pollution. Under normal unpolluted conditions, median visibility
would range from 4 to 5 deciviews in the West to about 8 to 9 in the East.
Source: Pitchford and Malm, "Development and Applications of a Standard Visual Index,"
Atmospheric Environment, Vol. 28, No. 5, 1994, p. 1053.
In portions of the West, the reverse problem may occur: here, air quality is still
sufficiently good that obtaining a noticeable (i.e., 1.0 deciview) improvement would
require substantial effort, and improvements of more than that amount may not be
feasible. Anne Smith, who, as a consultant to the Grand Canyon Visibility Transport
Commission, developed the model that projected impacts of control measures on
visibility at the Grand Canyon, has concluded that the "Maximum Management
Alternative" on the Colorado Plateau "generates only 1 deciview of improvement in
50 years in terms of the annual average (from 9 deciviews in 1990 down to 8
deciviews in 2040). In terms of the 20% worst days, which is the focus of the
proposed rules, this 'upper bound' generates approximately 1.5 to 2 deciviews of
However, this conclusion does not take into account certain control possibilities,
and may overstate the ditKculty of achieving visibility improvement, particularly in the
"Statement of Dr. Anne E. Smith, Decision Focus Incorporated, before the Subcommittee on
Forests and Public Land Management, Committee on Energy and Natural Resources, U.S.
Senate, October 28, 1997, p.3.
near term. The Maximum Management Alternative, defined as the "maximum
visibility improvements possible regardless of the cost of the pollution controls used,"
did not include mobile source controls or measures that would require international
Further, the same analysis shows that, due to existing control
requirements, visibility will improve until about 20 10, by as much as one de~iview.'~
As a result, EPA's target, at least for the first 10 to 15 year period, appears to be
relatively easily attained both in the West and the East.
Nevertheless, Dr. Smith's larger point is well-taken: beyond 20 10, visibility
improvements in the West may be diflicult to achieve. Because air quality is less
degraded there, a less stringent target may be justified, particularly if the first 10 to
15-year period yields projected improvements. Opponents have characterized EPA's
proposal as a "one-size fits all" federal regulation. In most respects, given the
flexibility EPA is allowing the states to develop their own goals, strategies, and
regulatory programs, this criticism seems out of place; but in requiring the same rate
of progress in all areas of the country, EPA is establishing a sort of "one-size fits all''
target, which may be too lenient in some areas, while being difficult to maintain long
term in others.
Setting different ffedral standards for different parts of the country poses its own
challenges, however. Typically, the federal government has imposed uniform federal
standards to protect health and to provide a level playing field for new major sources.
Because states begin with different levels of pollution, the establishment of a uniform
federal standard (for example, a National Ambient Air Quality Standard) can have the
effect of requiring more stringent measures in some states and local areas than in
others." In addition, the states have authority under most environmental statutes to
set their own standards (as long as they are more stringent than the federal), and have
done so under other parts of the Clean Air Act.
What is unique in the regional haze rule is that the standard is expressed in terms
of units of progress, rather than as the ultimate goal. This choice seems mandated by
the language of the Act itself, which requires "regulations to assure ... reasonable
progress toward meeting the national goal...." Nevertheless, achieving sufficiently
rapid progress in the East, while not setting impossible standards in the West, is a
challenge that EPA faces in crafting the final regulations.
Grand Canyon Commission Recommendations. A number of interested
parties, including many of the participants in the Grand Canyon Visibility Transport
Commission process, have complained that EPA's proposal pays insufficientattention
to the Commission's recommendations. The Commission assembled a diverse group
of interested parties from eight states and spent 5 years analyzing the problem of
visibility in the national parks and wilderness areas of the Colorado Plateau, including
the Grand Canyon, Bryce Canyon, Zion and other areas. As noted earlier in this
5 6 ~ oardiscussion of the setting of ambient air quality standards, see CRS Report 97-722,
Air Quality Standards: The Decisionmaking Process.
report, the Commission reached consensus on a set of nine recommendations that
addressed a wide range of contributorsto the haze problem, including mobile sources,
road dust, stationary sources, international sources, and prescribed burning, and
recommended a wide array of measures, including hrther research needs, to address
EPA's proposed rule discusses the work of the Commission in its preamble, but
it does not strictly follow the Commission's recommendations for several reasons.
First, the recommendations are useful in outlining hture research needs (e.g., tracking
emissions growth in clean air corridors, expanding data collection and improving
modeling for areas in or near parks, and resolving uncertainties concerning the
contribution of road dust to visibility impairment). The Commission report also
identifies areas that need additional attention, such as collaboration with Mexico on
emissions inventories and monitoring. But many of its recommendations do not
address the regulation or reduction of emissions. In this regard, they do not offer a
Second, where the recommendations do address regulation, in many cases they
recommend programs for which EPA has limited statutory authority. For example,
the Commission recommended "policies based on energy conservation, increased
energy efficiency and promotion of the use of renewable resources for energy
production," including the adoption of emission fees to replace property or income
taxes, and the adoption of stricter energy efficiency standards for motors, appliances,
and lighting.58But the Clean Air Act gives EPA no authority to promulgate any such
Third, EPA's proposal is meant to address visibility problems in all areas of the
country, not just the eight states that participated in the Commission process. While
there are many usehl ideas in the Commission report, the visibility problem is
substantially different, both in causes and in severity, in other parts of the country:
recommendations intended to protect the Grand Canyon do not necessarily fit in the
eastern or southern United States.
What EPA has proposed focuses on state planning, allowing the states flexibility
to adopt whatever measures they conclude will make progress toward the national
goal. It requires the states to measure that progress and revise their plans at 3-year
intervals. And it allows the states to adopt alternative progress targets, where they
can jus* doing so, using criteria spelled out in the Act. This degree of flexibility is
unusual in an EPA regulatory program. It appears to be consistent with the statutory
authority provided in Section l69A.
Federal-State Issues. The proposed regional haze regulations have also called
attention to certain perennial issues of federal-state relations under the Clean Air Act
-- in particular, the extent to which federal entities can prevent or penalize actions by
states, and vice versa. More specifically, three federal-state issues present themselves:
a) whether a federal land manager can block state issuance of permits under the
57Fora summary of the recommendations, see the discussion above, on pp. 6-8.
Prevention of Si@cant Deterioration (PSD) program; b) whether the actions of
federal land managers (such as prescribed burns on Forest Service lands) are subject
to state authority; and c) what authority EPA has to enforce its visibility program
requirements on states -- in particular, whether sanctions under Sections 179 and
110(m) of the Clean Air Act apply to states that fail to submit or implement adequate
State Implementation Plans.
Federal Land Managers and Permits. Can a federal land manager (FLM)59
block state issuance of emission permits because of the impact the emissions may have
on visibility in class I areas? As a practical matter, it would seem not. It is true that
the Clean Air Act gives the FLM an "affirmative responsibility" to protect visibility
It is also true, more concretely, that where the FLM
on federal lands in class I aera@
shows "to the satisfacton of the State" that emissions fiom a proposed major emitting
facility will adversely affect visibility on such lands, the Act instructs that "a permit
shall not be issued."61 Read literally?this directive could be deemed a federal veto.
Realistically, however, the unqualified discretion afforded the state to determine when
a showing has been made "to [its] satisfaction" means that the state retains control
over whether the permit is issued.
Elsewhere in the Clean Air Act, it is required that a state "consult in person with
the appropriate [FLMJ"before holding a hearing on proposed visibility-related SIP
revision^.^' Plainly, this also falls short of an FLM veto authority over individual
State Authority over Federal Land Managers. Turn now to the reverse
situation. What authority do states have, through their SIPSas revised in accordance
with the new visibility regulations, to regulate emissions on federal lands? In
particular, what authority do states have to regulate prescribed burning of National
Forest lands? Because the Clean Air Act (like most other federal pollution laws)
contains a broad waiver of federal supremacy, states appear to have broad authority
to regulate emissions on federal lands -- whether the regulation is contained in a SIP
or not. Under the Act, federal agencies "having jurisdiction over any property" or
"engaged in any activity resulting ... in the discharge of air pollutants" must comply
with state air pollution rules to the same extent as any nongovernmental entity.63
Sanctions Finally, there is the issue of sanctions, long a sensitive one under the
Clean Air Act. (Title I of the Clean Air Act provides both mandatory and
discretionary authority for the EPA Administrator to impose sanctions on states that
have not submitted adequate State Implementation Plans. Sanctions take two
principal forms: 1) withholding federal highway funds, and 2) 2: 1 offsets -- requiring
59 "FederalLand Manager" is defined as the Secretary of the department with authority over
the federal lands in question. CAA (5 302(i).
CAA (5 165(d)(2)(C)(ii).
CAA 6 118(a).
permit applicants in nonattainment areas to assure offsetting emission reductions twice
as great as the emissions to be released by a proposed facility. For a more thorough
discussion of Clean Air Act sanctions, see Highway Fund Sanctionsfor Clean Air Act
Violations, CRS Report 97-959 ENR.)
What sanctions can be imposed on states for failing to revise their SIPSto meet
the visibility-related requirements of EPA's regional haze regulation, when it is
issued?64Reading closely the mandatory sanctions provision65and the discretionary
sanctions provision66in the Act, it would appear that the latter fits this situation more
closely. If this interpretation is correct, then in the event of a state's failure to make
the SIP revision, EPA may, but does not have to, impose the highway sanctions
and/or the 2: 1 emissions offset sanctions (in nonattainment areas), and must, should
the state's failure continue, promulgate a federal implementation plan revision.67
But while CAA sanctions may be imposed for failure to submit an adequate SIP,
they may not be imposed, following procedural compliance, for not achieving visibility
goals. That is, where visibility-related SIP revisions are made by the state and
approved by EPA, sanctions may not be imposed if the new SIP measures prove to
be less effective than believed at the outset. As an initial matter, proposed 40 C.F.R.
§ 5 1.306(d)(5) allows a state to adopt an "alternate reasonable progress target" if the
original target can be shown to be unattainable due to such factors as availability of
source control technology, costs of compliance with the original target, the remaining
usehl life of sources, etc. Only if the state cannot make the required showing, or
simply refuses to try, would matters move to the next phase. In such event, the CAA
calls for an EPA finding that the SIP is "substantially inadequate," and an EPA
deadline of no more than 18 months for the state's submission of plan revisions.68If
such SIP revisions are not timely submitted, the Act contemplates that 18 months
after the determination of nonsubmission EPA must impose either the highway
sanction or (in nonattainment areas) the 2: 1 emissions offset sanction,69may also
withhold air pollution program grants,70 and must, should the non-submission
continue, promulgate a federal implementation plan revi~ion.~'
Such SIP revisions are required by CAA § 169B(2).
" CAA # 110(m).
CAA g 1 lO(c)(l).
68CAA§ 110(k)(5). See also CAA § 1 lO(a)(2)(H)(ii) (state-submitted SIP, to be approvable,
must provide for revision of plan if substantially inadequate to comply with Act's
CAA 4 179(a). Some ambiguity exists as to whether CAA 110(m), rather than CAA §
179(a) might govern in this circumstance. If section 110(m) controls, then EPA imposition
of the highway and emission offset sanctions is discretionary, not mandatory.
CAA 4 179(a).
CAA 4 1 lO(c)(l).
The regional haze rule, on its own, appears unlikely to have much impact on air
quality before the year 2010. It proposes relatively modest goals for visibiity
improvement. These goals appear likely to be met or surpassed in most sections of
the country as a result of regulations already being implemented -- notably the acid
rain program and controls on mobile sources and non-road engines. In states required
to implement programs to control fine particles -- which EPA and other observers
believe includes most of the states -- implementation of the regional haze program will
be delayed to coincide with PM control measures, which are unlikely to be determined
However modest its immediate impact, the proposed rule is one of several
regulations that point in the same direction. Along with the nonattainment provisions
of the 1990 Clean Air Act, the revised air quality standards for ozone and particulates
(promulgated in July, 1997), the acid rain program, the regional efforts to control
ozone transport developed by the Ozone Transport Assessment Group and the Ozone
Transport Commission, the threat of action to control interstate sources of air
pollution under Section 126 of the Act, the implementation of revised New Source
Performance Standards for stationary sources of pollution, and new standards for
mobile sources that are now being implemented, these regulations will help move the
nation toward noticeably cleaner air.72 In this respect, the haze regulations may
fbnction almost as "standby" regulations: in case the other measures being
implemented do not improve visibility in national parks and wilderness areas, the tools
of the regional haze program would be available to do so.
At the same time, EPA faces significant choices in finalizing the haze regulations,
which could substantially affect the reach and impact of the rule. For example,
adoption of more stringent targets for visibility improvement, or standards that
emphasize emission reductions fiom specific types of sources rather than the more
general goal of visibility improvement, could make regional haze regulation more of
a controlling factor on the regulatory agenda.
States will have decisions to make, too, once the rule is final. Successhl
implementation of the rule will require consultation and decision-making on a regional
basis. In its proposal, EPA has placed significant emphasis on the regional
consultations and decision-making required, but at present, the institutional structures
necessary for regional decision-making are nonexistent. The regions themselves
As a result, Congress is likely to retain an interest in the regional haze program
and its implementation. Congress can express this interest in a number of ways. It
can review regulations and their implementation under both its general oversight
authority and under the new congressional regulatory review process; it can use the
n ~ odescriphons
and discussion of these other programs, see CRS Issue Brief 97007, Clean
Air Act Issues, and the Clean Air Act section of CRS Report 97-49 ENR, Summaries of
Environmental Laws Administered by the Environmental Protection Agency.
appropriations process to shape implementation; and it periodically revisits issues by
considering amendments to the authorizing legislation -- in this case, the Clean Air
Act, whose authorization expires September 30, 1998. Whether the regional haze
program will be considered in any of these congressional fora is likely to depend on
the final form of the rule that EPA chooses to promulgate.