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New York State's Best Available Retrofit Technology (BART) Rule (Part 249)

On July 1, 1999, the United States Environmental Protection Agency (EPA) promulgated a regulation aimed at preventing further deterioration of visibility, and remedying of existing visibility problems, in 153 Federal Class I areas across the country. This regulation, termed the Regional Haze Rule (64 FR 35713-35774; hereafter referred to as the "Haze Rule"), requires states and tribes to develop plans for achieving reasonable progress toward specific national visibility goals.

One requirement of the Haze Rule was the establishment of an inventory of sources within each state or tribal jurisdiction that would be subject to (i.e., eligible for) controls under the Best Available Retrofit Technology (BART) provisions of the rule. BART provisions were included in the Haze Rule to provide a mechanism for achieving visibility improvements in State Implementation Plans for haze. These provisions call for "Retrofit" controls on specific classes of emitting equipment within a facility that were unlikely to have been controlled under other Clean Air Act (CAA) requirements.

Industry groups challenged the Haze Rule claiming it limited states' authority in deciding an individual source's impact on visibility in a downwind area. EPA originally proposed dealing with the collective impacts of all BART-eligible sources within a state. On May 24, 2002, the D.C. Circuit Court of Appeals agreed in the majority with industry petitioners and vacated those portions of the Haze Rule dealing with BART.

On July 6, 2005, the EPA issued its final amendments to the July 1999 Haze Rule, otherwise known as the Final BART Rule (70 FR 39103-39172). States now consider visibility impacts on an individual source basis when making each BART determination.

The method to be used to determine which facilities require BART controls starts with identifying the "BART-eligible" sources, and of those sources, which are "subject to BART," before finally deciding upon "BART applicability." A BART-eligible facility generally refers to a source from 1 of 26 identified source categories that has the potential to emit 250 tons or more of any visibility impairing pollutant, which went into operation during the 15 years prior to adoption of the 1977 CAA Amendments (the "BART window"). Under Section 169A of the CAA, each BART-eligible source must then be deemed subject to BART by proving the source causes or contributes to visibility impairment in a Class I area. If so, BART applicability will be decided on a case-by-case analysis, which will consider the following five factors: the cost of compliance; the energy and non-air quality environmental impacts of compliance; any existing pollution control technology in use at the source; the remaining useful life of the source; and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. This assessment will determine which control equipment, at a reasonable cost, can be applied to lessen the source's visibility impact. Specific methods for determining the above conditions can be found in Section III of the Final BART Rule.

Because of the regional nature of the haze issue, New York is working with other Northeastern states to improve visibility under the haze program. This collaboration is through the Mid-Atlantic/Northeast Visibility Union (MANE-VU) Regional Planning Organization which was formed by the Mid-Atlantic and Northeastern states, tribes, and federal agencies to coordinate regional haze planning activities for the region.

Please also note the contact information regarding the BART rule in the right-hand column of this page.