[Federal Register Volume 78, Number 51 (Friday, March 15, 2013)]
[Proposed Rules]
[Pages 16452-16456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06072]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2010-0406; FRL-9790-8]
Approval and Promulgation of Implementation Plans; North Dakota;
Regional Haze State Implementation Plan; Federal Implementation Plan
for Interstate Transport of Pollution Affecting Visibility and Regional
Haze; Reconsideration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On April 6, 2012, EPA published a final rule partially
approving and partially disapproving a North Dakota State
Implementation Plan (SIP) submittal addressing regional haze submitted
by the Governor of North Dakota on March 3, 2010, along with SIP
Supplement No. 1 submitted on July 27, 2010, and part of SIP Amendment
No. 1 submitted on July 28, 2011. The Administrator subsequently
received a petition requesting EPA to reconsider certain provisions in
the final rule. Specifically, the petition raised several objections to
EPA's approval of the State's best available retrofit technology (BART)
emission limits for nitrogen oxides (NOX) for Milton R.
Young Station Units 1 and 2 and Leland Olds Station Unit 2, which are
coal-fired power plants in North Dakota.
In this action, EPA is initiating the reconsideration of its
approval of the NOX BART limits for these units, proposing
to affirm its approval of these limits, and requesting comment on this
proposal. We are not reconsidering or requesting comment on any other
provisions of the final rule.
DATES: Comments: Comments must be received on or before May 14, 2013
unless a public hearing is held, which would extend the comment period
(see below).
Public Hearing: If anyone contacts EPA requesting to speak at a
public hearing by April 8, 2013, a public hearing will be held in May
2013 in Bismarck, North Dakota. If a public hearing is held, the record
for this action will remain open for 30 days after the hearing to
accommodate submittal of information related to a public hearing and
any other comments on this action, and EPA will publish a document in
the Federal Register extending the comment period. For more information
on a public hearing and requests to speak, see the General Information
section of this preamble.
[[Page 16453]]
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0406, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
Email: [email protected].
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT section if you are faxing
comments).
Mail: Director, Air Program, Environmental Protection
Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. Such deliveries are only accepted Monday
through Friday, 8:00 a.m. to 4:30 p.m., excluding federal holidays.
Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2010-0406. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA, without
going through http://www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Gail Fallon, EPA Region 8, at (303)
312-6281, or [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
A. What should I consider as I prepare my comments for EPA?
B. What information should I know about a public hearing?
II. Background
III. Today's Action
A. Reconsideration and Proposal To Affirm
B. Rationale for Our Proposal To Affirm
IV. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
The word Act or initials CAA mean or refer to the Clean
Air Act, unless the context indicates otherwise.
The initials ASOFA mean or refer to advanced separated
overfire air.
The initials BACT mean or refer to best available control
technology.
The initials BART mean or refer to best available retrofit
technology.
The initials EGU mean or refer to electric generating
unit.
The words we, us or our or the initials EPA mean or refer
to the United States Environmental Protection Agency.
The initials FIP mean or refer to federal implementation
plan.
The initials LOS mean or refer to Leland Olds Station.
The initials MRYS mean or refer to Milton R. Young
Station.
The words North Dakota and State mean the State of North
Dakota unless the context indicates otherwise.
The initials NOX mean or refer to nitrogen
oxides.
The initials PSD mean or refer to prevention of
signification deterioration.
The initials SCR mean or refer to selective catalytic
reduction.
The initials SIP mean or refer to state implementation
plan.
The initials SNCR mean or refer to selective non-catalytic
reduction.
I. General Information
A. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
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B. What information should I know about a public hearing?
EPA will hold a public hearing on today's document only if it
receives a request to present oral testimony on the issues addressed in
today's document by April 8, 2013. Any person wishing to present oral
testimony should notify Ms. Gail Fallon at (303) 312-6281 by 5 p.m.
mountain time on April 8, 2013. If a public hearing is held, it will be
held in May 2013 in Bismarck, North Dakota. We will post information on
the specifics on our Web site at http://www.epa.gov/region8/air/ and by
publishing a Federal Register document at least 15 days before the date
of the hearing. The document announcing a hearing would also extend the
public comment period for 30 days following the date of the public
hearing. A public hearing would provide interested parties the
opportunity to present data, views, or arguments concerning this
document.
Interested parties may also submit written comments, as discussed
in the proposal. Written statements and supporting information
submitted during the comment period will be considered with the same
weight as any oral comments and supporting information presented at a
public hearing. We will not respond to comments during a public
hearing, may limit oral testimony to five minutes, and will not provide
equipment for showing overhead slides or computerized slide
presentations. When we publish our final action, we will provide
written responses to all oral and written comments received on our
proposal.
II. Background
On March 3, 2010, the State of North Dakota submitted a regional
haze SIP submittal for approval into the North Dakota SIP.\1\ The SIP
included the State's NOX BART determinations for Milton R.
Young Station (MRYS) Units 1 and 2 and Leland Olds Station (LOS) Unit
2. Based on its conclusion that selective non-catalytic reduction
(SNCR) plus advanced separated overfire air (ASOFA) represented BART at
these units, the State adopted NOX BART limits of 0.36,
0.35, and 0.35 pounds per million British thermal units (lb/MMBtu),
respectively, on a 30-day rolling average basis. The State rejected
selective catalytic reduction (SCR), a more effective NOX
control technology, as BART.
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\1\ For a full discussion of regional haze requirements, please
see our proposal at 76 FR 58574, 58576.
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In our proposed action, we proposed to disapprove the State's
NOX BART determinations for these units. See 76 FR 58570,
58573 (September 21, 2011). In our final rule, we changed our position
and approved the State's NOX BART determinations for these
units. 77 FR 20894, 20897 (April 6, 2012). We based our change on a
December 21, 2011, U.S. District Court decision that was issued after
the close of the public comment period. Id. at 20897-20898.
On June 4, 2012, Earthjustice, on behalf of the National Parks
Conservation Association and the Sierra Club, submitted a petition for
reconsideration of our final rule under section 307(d)(7)(B) of the CAA
requesting that EPA reconsider its approval of the State's
NOX BART determinations for MRYS Units 1 and 2 and LOS Unit
2. The petition asserts that the environmental groups were unable to
raise their objections to EPA's reliance on the District Court decision
during the comment period because of the timing of that decision and
that their objections are of central relevance to EPA's final rule
because EPA relied on the District Court decision in explaining the
basis for its final rule. In a letter to Earthjustice dated November
19, 2012, EPA granted reconsideration of its final rule in order to
allow for public comment on the specific issues raised in the petition.
In that letter, we indicated that we would publish a notice of proposed
rulemaking to address the State's NOX BART determinations
and limits for the three units as part of a reasonable progress
analysis.
III. Today's Action
A. Reconsideration and Proposal To Affirm
EPA is initiating the reconsideration of its approval of the
State's NOX BART determination and limits for MRYS Units 1
and 2 and LOS Unit 2 and proposing to affirm its approval of the
determination and limits. We are not reconsidering or requesting
comment on any other provisions of the final rule.
B. Rationale for Our Proposal To Affirm
On July 27, 2006, the U.S. District Court for the District of North
Dakota entered a consent decree between EPA, the State, and Minnkota
Power Cooperative (``Minnkota''). The consent decree resulted from an
enforcement action that EPA and the State brought against Minnkota for
alleged violations of prevention of significant deterioration (PSD)
permitting requirements at MRYS Units 1 and 2. The consent decree
called for North Dakota to make a best available control technology
(BACT) determination for NOX for MRYS Units 1 and 2 and
provided a dispute resolution procedure in the event of disagreement
regarding the BACT determination.
In November 2010, North Dakota determined BACT for NOX
to be limits of 0.36 lb/MMBtu for MRYS Unit 1 and 0.35 lb/MMBtu for
MRYS Unit 2 based on the use of SNCR technology, with separate limits
during startup. In reaching this decision, North Dakota eliminated SCR
as BACT based on its finding that SCR was not technically feasible to
control emissions from an electric generating unit (EGU) burning North
Dakota lignite coal. In particular, North Dakota noted that no SCR has
ever been employed on an EGU burning North Dakota lignite, that North
Dakota lignite has unique properties that have the potential to quickly
degrade the SCR catalyst, and that no catalyst vendor supplied with the
specifications for the coal at MRYS Units 1 and 2 would provide a
guarantee of catalyst life without first conducting slipstream or pilot
tests at MRYS.
EPA disagreed with North Dakota's findings and the selection of
SNCR as BACT and initiated the dispute resolution process under the
consent decree. Under the consent decree, the court was to uphold North
Dakota's BACT determination unless the disputing party was able to
demonstrate that North Dakota's decision was unreasonable.
On December 21, 2011, following briefing by the parties, and
consideration of North Dakota's record for its BACT determination, the
court determined that EPA had not demonstrated that North Dakota's
findings were unreasonable.\2\ The court decided that North Dakota,
based on the administrative record for its BACT determination, had a
reasonable basis for concluding that SCR is not technically feasible
for treating North Dakota lignite at MRYS. Id. The court upheld North
Dakota's determination that SNCR is BACT. Id.
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\2\ Order Denying Plaintiff's Motion to Stay and Motion for
Dispute Resolution, United States, et al., v. Minnkota Power
Cooperative, Inc., et al., United States District Court for the
District of North Dakota, Southwestern Division, Civil Action No.
1:06-cv-034, Docket EPA-R08-OAR-2010-0406-0365.
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Two critical principles expressed in our BART guidelines\3\ are
relevant here. First, as part of a BART analysis, technically
infeasible control options
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are eliminated from further review. For BART, EPA's criteria for
determining whether a control option is technically infeasible are
substantially the same as the criteria used for determining technical
infeasibility in the BACT context. 70 FR 39165; EPA's ``New Source
Review Workshop Manual,'' pages B.17-B.22.\4\ In the BART context, a
technology is feasible if it is available and applicable. 70 FR 39165.
A technology is available if it can be obtained through commercial
channels. An available technology is applicable if it can reasonably be
installed and operated on the source under consideration.Id. The BACT
analysis for technical feasibility employs the same approach. It, too,
uses the concepts of availability and applicability and defines those
terms in the same manner as the BART guidelines.
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\3\ Among other things, EPA's BART guidelines, codified at 40
CFR part 51, appendix Y, describe a set of steps for determining
BART. CAA section 169A(b)(2) requires that BART be determined
pursuant to the BART guidelines for power plants with a total
generating capacity over 750 megawatts. With respect to other BART
sources, the BART guidelines reflect EPA's interpretations regarding
certain key principles related to BART, including the two principles
described in the text.
\4\ See docket EPA-R08-OAR-2010-0406-0038.
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The second critical principle is that states generally may rely on
a BACT determination for a source for purposes of determining BART for
that source, unless new technologies have become available or best
control levels for recent retrofits have become more stringent. 70 FR
39164. As a general rule, the selection of a recent BACT level as BART
is the equivalent of selecting the most stringent level of control, and
consideration of the five statutory BART factors becomes unnecessary.
In deciding our challenge to the information and analyses relied
upon by North Dakota, the U.S. District Court upheld North Dakota's
recent BACT determination based on the same technical feasibility
criteria that apply in the BART context. In light of the court's
decision and the views we have expressed in our BART guidelines on the
relationship of BACT to BART, we concluded in our final rule that it
would be inappropriate to proceed with our proposed disapproval of SNCR
as BART and our proposed federal implementation plan (FIP) to impose
SCR at MRYS Units 1 and 2 and LOS Unit 2. 77 FR 20898. While LOS Unit 2
was not the subject of the BACT determination, the same reasoning that
applies to MRYS Units 1 and 2 also applies to LOS Unit 2. It is the
same type of boiler burning North Dakota lignite coal, and North
Dakota's views regarding technical infeasibility that the U.S. District
Court upheld in the MRYS BACT case apply to it as well.
While we do not view the U.S. District Court's decision regarding
technical infeasibility as legally binding concerning our evaluation of
the State's BART determinations at MRYS Units 1 and 2 and LOS Unit 2,
we find it appropriate, under the unique circumstances involved here,
to accord substantial weight to the District Court's decision and the
State's BACT determination. The District Court evaluated competing
arguments advanced by the State, Minnkota, and EPA, as well as an
extensive record,\5\ and concluded that the State had not reached an
unreasonable conclusion about technical feasibility. The District Court
affirmed the State's choice of SNCR plus ASOFA as BACT. Our BART
guidelines indicate that recent BACT determinations generally may be
considered BART without further analysis. Based on these facts, we are
not acting arbitrarily or capriciously, or unreasonably, in determining
that the State's selection of SNCR plus ASOFA as BART at MRYS Units 1
and 2 and LOS Unit 2 is reasonable and should be approved.\6\ We note
that evaluations of technical feasibility often change over time and
that we may reach a different conclusion about the technical
feasibility of SCR at these plants in the future as part of a
reasonable progress analysis. The regional haze program requires
additional reasonable progress reviews over time on the multi-year path
for states to reach the ultimate visibility goal of the CAA.
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\5\ We note that the State submitted the record from the BACT
proceeding to us on July 28, 2011 as a SIP revision and again during
the comment period on our September 21, 2011 notice of proposed
rulemaking on the State's regional haze SIP.
\6\ The associated BART limits are 0.36 lb/MMBtu for MRYS Unit
1, 0.35 lb/MMBtu for MRYS Unit 2, and 0.35 lb/MMBtu for LOS Unit 2,
on a 30-day rolling average basis. The SIP contains separate limits
for MRYS Units 1 and 2 during startup of 2070.1 and 3995.6 pounds
per hour, respectively, on a 24-hour rolling average basis. See SIP
section 7.4.2, p. 74.
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IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action would merely approve state law as meeting federal
requirements and would impose no additional requirements beyond those
imposed by state law. In this reconsideration, EPA is proposing to
affirm its prior approval of North Dakota SIP requirements for two
sources in North Dakota. This type of action is exempt from review
under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). Because the action applies to
just two facilities, the Paperwork Reduction Act does not apply.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's action on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this action on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In this
reconsideration, EPA is proposing to affirm its prior approval of North
Dakota SIP requirements for two sources in North Dakota. The proposed
action, if finalized, merely would approve state law as meeting federal
requirements and would impose no additional requirements beyond those
imposed by state law. We continue to be interested in the potential
impacts of the proposed rule on small entities and welcome comments on
issues related to such impacts.
D. Unfunded Mandates Reform Act (UMRA)
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires federal agencies, unless prohibited by law,
to assess the effects of their regulatory actions on state, local, and
tribal governments and the private sector. The action imposes no
enforceable duty on any state, local or tribal governments or the
private sector. In this reconsideration, EPA is proposing to affirm its
prior approval of North Dakota SIP requirements for two sources in
North Dakota. The proposed
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action, if finalized, merely would approve state law as meeting federal
requirements and would impose no additional requirements beyond those
imposed by state law.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. Again, in this
reconsideration, EPA is proposing to affirm its prior approval of North
Dakota SIP requirements for two sources in North Dakota. The proposed
action, if finalized, merely would approve state law as meeting federal
requirements and would impose no additional requirements beyond those
imposed by state law.
E. Executive Order 13132: Federalism
This action would not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132,
because, if finalized, it merely would approve state law as meeting
federal requirements and would impose no additional requirements beyond
those imposed by state law. Thus, Executive Order 13132 does not apply
to this action. In the spirit of Executive Order 13132, and consistent
with EPA policy to promote communications between EPA and state and
local governments, EPA specifically solicits comment on this action
from state and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 because it does not impose substantial direct
compliance costs and does not preempt tribal law. In this
reconsideration, EPA is proposing to affirm its prior approval of North
Dakota SIP requirements for two sources in North Dakota. The proposed
action, if finalized, merely would approve state law as meeting federal
requirements and would impose no additional requirements beyond those
imposed by state law. Thus, Executive Order 13175 does not apply to
this rule. EPA specifically solicits additional comment on this action
from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it implements specific standards established by Congress
in statutes. In addition, it is not an economically significant
regulatory action because it applies to only two facilities and merely
proposes to approve state law as meeting federal requirements; it would
impose no additional requirements beyond those imposed by state law.
This action would not present a disproportionate health or safety risk
to children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
VCS are inapplicable to this action because application of those
requirements would be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
We have determined that this action, if finalized, will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. The action, if finalized, merely would approve state
law as meeting federal requirements and would impose no additional
requirements beyond those imposed by state law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Incorporation by reference, Nitrogen dioxides, Particulate
matter, Reporting and recordkeeping requirements, Sulfur dioxide,
Volatile organic compounds.
Dated: March 8, 2013.
Bob Perciasepe,
Acting Administrator.
[FR Doc. 2013-06072 Filed 3-14-13; 8:45 am]
BILLING CODE 6560-50-P