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Statement of Need: This action is needed in response to the May 2002 ruling of the U.S. Court of Appeals for the D.C. Circuit (American Corn Growers et al. V. EPA,, 291 F.3d 1) vacating the Best Available Retrofit Technology (BART) provisions of the regional haze rule. The Clean Air Act requires that States to include BART in their visibility State Implementation Plans (SIPs). The Clean Air Act also requires that a State take steps to prevent emissions from sources located within its boundaries from interfering with a downwind State’s ability to meet air quality standards, or interfering with measures to protect visibility.

Summary of the Legal Basis: Clean Air Act section 169A requires States to include BART in their visibility SIPs. Clean Air Act section 110(a)(2)(D) (42 USC 7410(a)(2)(D)) requires that each state's implementation plan include the "good neighbor" provisions of prohibiting sources in the State from emitting air pollutants in amounts that contribute significantly to nonattainment in a downwind state, or interfere with measures to protect visibility in a Class I areas. Section 110(a)(1) (42 USC 7410(a)(1)) requires States to submit implementation plans within a specified period of time after the promulgation of a new or revised national ambient air quality standard. In addition, EPA has authority under section 110(k)(5) (42 USC 7410(k)(5)) to require States to revise existing implementation plans whenever EPA finds that those plans are inadequate to comply with any requirement. Further, section 301(a)(1) (42 USC 7601(a)(1)) confers general authority upon the EPA Administrator. These provisions of the Clean Air Act confer authority on EPA to promulgate the present regulations.

Alternatives: This entry comprises the action the Agency plans to take to implement the BART provisions of the Clean Air Act. The major alternatives facing the Agency include: (1) How to structure the process for exempting individual emission sources from BART that is mandated by the court ruling, and (2) whether to include prescriptive control levels for visibility-impairing pollution from large electric generating units, and what control levels to prescribe.

Anticipated Costs and Benefits: EPA prepared a regulatory impact analysis (RIA) for the proposed BART rule. Updated cost and benefit calculations will be made as development of the RIA proceeds for the final rulemaking.

Risks: The risks addressed are the health and welfare impacts resulting from emissions that interfere with measures to protect visibility in Class I areas. These effects were outlined in detail in the Regulatory Impact Analysis for the proposed BART rulemaking.