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Regional Haze, Round 2

If you haven’t been paying attention to Regional Haze, it’s time to start. While the focus has been on the many new federal rules coming out, the Regional Haze Rule is already in place and set to make a big impact on the fossil fuel industry as EPA starts reviewing states’ Round 2 plans. If Round 2 is anything like Round 1, there’s sure to be years of litigation ahead.

The purpose of the rule is to restore visibility in Class I areas, like North Dakota’s Theodore Roosevelt National Park. States have to make a plan to improve visibility, including deciding if controls should be required for sources of visibility-impairing pollutants. If EPA rejects a state’s plan, it can write its own.

In August 2022, the North Dakota Department of Environmental Quality submitted its Round 2 plan to EPA. NDDEQ determined that additional controls aren’t required for the state’s significant sources because North Dakota is on-track to meet the goal of natural visibility by 2064. NDDEQ identified out-of-state wildfire activity as a primary reason for poor visibility in TRNP. Many of us who have visited the park in recent years would agree that wildfire smoke can be a problem.

While there’s no word yet on North Dakota’s plan, there are signs that EPA is critically reviewing Round 2 plans. EPA recently proposed to disapprove Kansas’ plan. In response, Kansas submitted comments asking EPA to reverse its decision. Kansas argues that it reasonably determined no additional measures are necessary to make reasonable progress towards meeting the national visibility goal and it should not be required to expend limited resources conducting an in-depth evaluation of sources that have a de minimis visibility impact.

We may not have to wait long to find out what EPA thinks of North Dakota’s plan. In December, the state moved to intervene in a case pending in the U.S. District Court for the District of Columbia seeking to force EPA to act on North Dakota’s plan. The Court granted intervention and North Dakota’s response to the environmental groups’ motion for summary judgment is due March 29.

Any action by EPA on a state’s plan must go through public notice and comment. EPA’s final decision can be appealed to the federal court of appeals for the circuit in which the state is located. Sources potentially impacted by Round 2 should be aware of this process and ready to participate.

Please contact Maggie Olson, Bret SumnerChris Colclasure, or Jim Martin if you have any questions or would like more information.