[Federal Register Volume 78, Number 189 (Monday, September 30, 2013)]
[Rules and Regulations]
[Pages 59825-59839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23394]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2010-0954 and EPA-RO5-OAR-2010-0037; FRL9901-31-Region 5]
Approval and Promulgation of Air Quality Implementation Plans;
States of Michigan and Minnesota; Regional Haze
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this notice of final rulemaking, EPA is disapproving in
part the Michigan and Minnesota regional haze State Implementation
Plans (SIPs) for failure to mandate best available retrofit technology
(BART) for taconite facilities within these states. This final rule
supplements a February 6, 2013, action that established Federal
emission limits representing BART for these facilities.
DATES: This final rule is effective on October 30, 2013.
ADDRESSES: EPA has established dockets for this action under Docket ID
Numbers EPA-R05-OAR-2010-0954 and EPA-RO5-OAR-2010-0037. All documents
in the dockets are listed on the www.regulations.gov Web site. Although
listed in the index, some information is not publicly available, i.e.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through
www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
We recommend that you telephone Steven Rosenthal, Environmental
Engineer, at (312) 886-6052 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental
Engineer, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. What is the background for this action?
II. What are EPA's responses to the public comments it received?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background for this action?
Minnesota submitted its regional haze SIP on December 30, 2009, a
draft supplement on January 5, 2012, and a final supplemental
submission on May 8, 2012. EPA proposed approval of the Minnesota
regional haze SIP on January 25, 2012 (77 FR 3681). Among other
actions, the proposed rule proposed to conditionally approve
Minnesota's regional haze SIP as satisfying the BART requirements of
the Clean Air Act (CAA or the ``Act'') section 169A(b)(2)(A) and 40 CFR
51.308(e) for the State's six taconite plants, provided that Minnesota
submit emission limits representing BART prior to EPA's final action.
During the comment period on EPA's proposed rule, EPA received comments
providing evidence that better, cost-effective technology for the
control of taconite plant emissions was available that Minnesota (and
Michigan) failed to adequately consider in the SIP revision. Therefore,
EPA published a final rule approving other aspects of the Minnesota
regional haze SIP on June 12, 2012 (77 FR 34801), but deferred action
on BART for Minnesota's taconite facilities.
Michigan submitted its regional haze SIP on November 5, 2010. EPA
proposed action on the Michigan regional haze SIP on August 6, 2012 (77
FR 46912). In this action, EPA proposed to approve several aspects of
Michigan's regional haze SIP, and proposed to disapprove Michigan's
BART determinations for a Portland cement plant and a paper mill and
proposed Federal limits for those two facilities. EPA published final
action pursuant to this proposal on December 3, 2012 (77 FR 71533).
However, similar to Minnesota, EPA deferred action on BART for the
Tilden Mining taconite facility in Michigan.
On August 15, 2012 (77 FR 49308), EPA published a proposed partial
disapproval and Federal Implementation Plan (FIP) for BART for taconite
plants in Minnesota and Michigan. In that action, EPA reviewed relevant
information regarding the technical feasibility of various options for
the control of emissions from taconite plants and reviewed other
information relevant to determining BART for these plants. On February
6, 2013 (78 FR 8706), EPA published a final rule establishing a FIP to
implement BART for the taconite facilities in Minnesota and Michigan.
Also on February 6, 2013 (78 FR 8478), EPA supplemented its
proposed partial disapproval of the Minnesota and Michigan SIPs for
failure to require BART for taconite facilities within these states.
EPA published this notice in response to comments that EPA had not
adequately explained its rationale for proposing to disapprove the
States' BART determinations for taconite in its August 15, 2012
proposed action.
II. What are EPA's responses to the public comments it received?
In response to its supplemental proposed rulemaking, EPA received
comments from ArcelorMittal Minorca Mine, Incorporated (ArcelorMittal),
Cliffs Natural Resources, Inc. (Cliffs), U.S. Representative Richard M.
Nolan, the Minnesota Pollution Control Agency
[[Page 59826]]
(MPCA), the National Mining Association (NMA), and the Michigan
Department of Environmental Quality (MDEQ). The following discussion
provides a summary of the comments and EPA's responses. The comments by
ArcelorMittal are essentially identical to the comments from Cliffs,
except that they do not refer to taconite-related issues in Michigan.
Unless a comment by Cliffs is regarding taconite-related issues in
Michigan, a comment ascribed to Cliffs is also from ArcelorMittal.
A. Comments by Cliffs and/or ArcelorMittal
Comment: The CAA gives primary authority for regional haze
determinations to the states. States are responsible for developing and
implementing the regional haze program. States are responsible for
identifying BART-eligible sources, defining BART for each source,
establishing reasonable progress goals, and developing long-term
strategies to reduce regional haze in class I Federal areas.
The D.C. Circuit affirmed the primacy of states in implementing the
regional haze program in American Corn Growers Ass'n v. EPA, 291 F.3d 1
(D.C. Cir. 2002). There, the court confirmed the primacy of state
authority in this area by invalidating EPA's regulations on the grounds
that they impermissibly constrained state authority. EPA has only a
limited role in evaluating regional haze SIPs because the CAA calls for
states to play the lead role in implementing the regional haze program.
EPA has conceded as much by acknowledging that states retain the
primary responsibility of developing a viable visibility program and
states must determine the appropriate level of BART control for each
source subject to BART.
Response: Section 110 of the CAA requires states to develop SIPs
with enforceable emission limitations and other control measures to
meet the applicable requirements of the Act. A state must then submit
its SIP to EPA for approval. Congress crafted the Act to provide for
states to take the lead in developing SIPs, but balanced that decision
by requiring EPA to review the SIPs to determine whether a given SIP
meets all applicable requirements of the Act. See CAA sections
110(k)(3) and (l).
The D.C. Circuit's decision in American Corn Growers did not alter
this balance. The court's decision there was limited to a holding that
EPA could not require states to evaluate the first four BART factors on
a source-specific basis, while requiring states to evaluate visibility
improvement on a group-wide basis. In contrast, the Tenth Circuit
recently affirmed EPA's authority to evaluate regional haze SIPs for
compliance with all requirements of the Act, including the visibility
protection provisions in section 169A and EPA's implementing
regulations at 40 CFR 51.300-51.309 and 40 CFR pt. 51, app. Y. See
Oklahoma v. EPA, -- F.3d -- (10th Cir. 2013). As discussed in our
February 6, 2013, supplemental proposed disapproval, and in the
response to comments in this final disapproval, EPA has determined
that, while it agrees with Minnesota and Michigan's identification of
BART-eligible sources, we find that the states did not satisfy the
requirements for BART for the taconite facilities.
Comment: EPA rushed to issue a FIP, apparently leaving EPA without
enough time to explain to the states how their SIPs were deficient.
Only now, after finalizing its FIP, does EPA stop to ``take comments''
on the basis for its proposed disapproval of the SIPs, which is a sham
that offers no real opportunity for commenters to influence the outcome
of the regional haze process already determined by the FIP. EPA should
stay the FIP until it properly considers public comments on its basis
for disapproving the SIPs.
Response: In its comments dated September 28, 2012, addressing
EPA's August 15, 2012, proposed action, Cliffs commented that ``EPA's
Proposed Rule does not discuss the validity of the extensive factual
information and technical analysis underlying Minnesota's and
Michigan's BART determinations,'' and that ``EPA was forcing the public
and the States to guess at what EPA believes was wrong with Minnesota's
and Michigan's SIP submittals.'' In other words, Cliffs commented in
September 2012 that EPA needed to provide a more extensive explanation
of its basis for proposing to disapprove Minnesota and Michigan's BART
determinations for taconite facilities, but now believes that the
opportunity EPA has provided is rendered meaningless by the
promulgation of EPA's FIP in February 2012.
We disagree. As explained in the final rule promulgating the FIP,
EPA's FIP obligation following a finding of failure to submit remains
in effect, irrespective of a subsequent state SIP submittal, unless and
until EPA approves the SIP. See CAA section 110(c). A FIP is a gap-
filling measure only, however. See CAA section 302(y). As a result, a
FIP promulgated by EPA remains in place only until a state submits a
SIP correcting the inadequacy and that SIP is approved by EPA. In this
instance, Cliffs and other commenters had a meaningful opportunity to
comment on EPA's supplemental proposed disapproval and explain why
EPA's proposed action was incorrect. Had EPA agreed with Cliffs or
other commenters and approved the Minnesota and Michigan BART
determinations for taconite facilities instead, EPA's FIP would have
been replaced. Therefore, Cliffs' assertions are incorrect.
Nevertheless, we note that Cliffs' request for a stay is now moot
because the Eighth Circuit has already granted such a stay.
Comment: EPA has a limited role in the regional haze process and
therefore must defer to state determinations that meet minimum
requirements. EPA's role in the regional haze program is limited to
approving or disapproving SIPs submitted by the states, and EPA has
limited discretion to disapprove a SIP, as outlined by CAA section
110(k).
The Minnesota SIP was deemed complete on June 30, 2010, and the
Michigan SIP was deemed complete on May 5, 2011. Once a SIP is deemed
complete, EPA has 12 months to act on it and ``shall approve such
submittal as a whole if it meets the applicable requirements . . .''
EPA's role is limited to the ministerial function of reviewing SIPs for
consistency with the Act's requirements.
Response: The commenters are correct with respect to the schedule
in CAA section 110(k). However, nothing in this section states, or even
implies, that EPA must automatically approve a SIP within 12 months
after a SIP is deemed complete. Further, this section states that EPA
shall only approve a SIP if it meets all of the applicable requirements
of the Act. While Congress intended states to take the lead in
developing regional haze SIPs, it balanced that decision by requiring
EPA to review the states' SIPs to determine whether they meet the
applicable requirements of the Act. EPA's review is not limited to the
ministerial function of rubber-stamping a state's decisions. Rather, in
reviewing regional haze SIPs in general and BART determinations in
particular, EPA must consider not only whether the state considered the
appropriate factors, but also whether the state acted reasonably in
doing so. In undertaking such a review, EPA does not ``usurp'' the
state's authority, but ensures that such authority is reasonably
exercised.
Comment: Contrary to EPA's belief, the Ninth Circuit's decision in
Sierra Club v. EPA, 671 F.3d 955 (9th Cir. 2012), does not authorize
the Agency to disapprove a complete SIP every time new information
becomes available. The Ninth Circuit's decision rests heavily on
[[Page 59827]]
CAA section 172(c)(3)'s requirement that nonattainment plans include a
comprehensive, accurate, current inventory of actual emissions. No such
provision exists in CAA section 169A, which governs regional haze.
Rather, EPA is on record instructing states conducting BART
determinations that ``technologies should be considered if available
before the close of the State's public comment period'' and that they
``need not consider technologies that became available after this
date.'' That is precisely what Minnesota and Michigan did, and EPA
cannot use a decision from a different jurisdiction based on different
statutory language to change course now that it prefers a different
result. Rather, as the D.C. Circuit has held, ``[t]o require states to
revise completed plans every time'' new information arises ``would lead
to significant costs and potentially endless delays in the approval
process.'' Sierra Club v. EPA, 356 F.3d 296, 08 (D.C. Cir. 2004).
Response: EPA disagrees about the scope of the Ninth Circuit's
decision, which states that EPA should evaluate any new information
available and ``may not simply ignore it without reasoned explanation
or choice.'' Sierra Club, 671 F.3d at 967. The Ninth Circuit does not
couch this statement narrowly in the context of EPA's review of
nonattainment plan inventories, but rather presents it broadly as a
principle of administrative law. Indeed, the Ninth Circuit's full
holding states: ``But we should not silently rubber stamp agency action
that is arbitrary and capricious in its reliance on old data without
meaningful comment on the significance of more current compiled data.
We hold that EPA's failure to even consider the new data and to provide
an explanation for its choice rooted in the data presented was
arbitrary and capricious.'' Id. at 968.
Irrespective of the significance of Sierra Club v. EPA, however,
Cliffs mischaracterizes the technical feasibility provisions of the
BART Guidelines. The statement there that a state need not consider
technologies that are not commercially available by the end of the
state's public comment period for its SIP bears no relation to the
question of whether a technology that has been commercially available
for decades, such as low NOX burners, is applicable to a
specific source. Furthermore, even if Cliffs' incorrect reading of the
BART Guidelines were correct, both Minnesota and Michigan were aware
that low NOX burners had been successfully applied to
taconite furnaces before the ends of their respective public comment
periods. In a June 23, 2010, letter to Michigan regarding the state's
draft regional haze SIP, EPA commented that ``a low NOX main
burner firing solid fuels'' had been installed at Minntac and that
``work done by other companies had demonstrated that burner designs
that lower flame temperature can reduce NOX formation in
taconite furnaces.'' Similarly, in a February 10, 2012, letter to
Minnesota responding to the state's draft regional haze SIP supplement
for taconite facilities, EPA explained in detail that ``U.S. Steel has
demonstrated the development and use of low NOX main burners
that achieve 70 percent NOX reduction on its indurating
lines.'' Therefore, both States were well aware that low NOX
burners had been successfully applied to indurating furnaces. The
states did not provide reasonable explanations for dismissing this
information and instead continued to rely on the taconite facilities'
cursory and unsupported determinations from 2006 that low
NOX burners were technically infeasible.
Comment: Even if EPA legitimately determines that a SIP does not
meet the minimum criteria for approval after giving states appropriate
deference, EPA's actions remain proscribed by the Act. Section 110(c)
permits EPA to issue a FIP ``unless the state corrects the deficiency''
EPA identified. Had EPA followed the procedure required by the Act and
addressed the States' SIPs prior to issuing a FIP, any perceived issues
could have been resolved.
Response: This comment addresses EPA's final rule promulgating the
FIP and not EPA's supplemental proposed disapproval and is therefore
not relevant to this rulemaking. Nevertheless, we point out that Cliffs
fails to cite the full text of CAA section 110(c)(1), which states that
EPA ``shall promulgate a [FIP] at any time within 2 years . . . unless
the State corrects the deficiency, and the Administrator approves the
plan or plan revision, before the Administrator promulgates such
[FIP].'' Thus, the plain language of the Act requires SIP approval, not
merely SIP submission, before EPA's FIP authority is tolled.
Comment: EPA can disapprove a SIP only where it fails to meet
minimum CAA requirements. In the case of regional haze, the CAA
required Minnesota and Michigan to weigh the five statutory factors and
arrive at reasonable BART technology determinations.
Minnesota conducted a comprehensive rulemaking process to develop
its regional haze program, beginning with its analysis of taconite
sources in 2003. Minnesota began rulemaking efforts shortly after EPA
promulgated its revised regulations in 2005 and invested ``thousands
and thousands of hours'' over the next four years collecting and
analyzing technical data, assessing ground-level operating information
to make BART determinations that properly weighed the five statutory
factors from its unique local perspective. After carefully reviewing
all comments and analyzing all available information, on December 31,
2009, Minnesota submitted a detailed SIP to EPA that contained a
determination of the technology that was BART for each taconite furnace
in the state and for each regional haze pollutant. This SIP was
supported by more than 1,000 pages of analysis.
Similarly, Michigan began working to meet its regional haze
obligations soon after the finalization of EPA's revised regional haze
regulations and its state guidelines for BART determinations. After
reviewing all comments and analyzing all available information, on
November 5, 2010, Michigan submitted a detailed SIP to EPA with
extensive technical support totaling 1,187 pages that identified BART
for taconite plants.
Those submittals demonstrate that both states met their statutory
regional haze SIP burden, including for BART determinations. EPA must
give the states' findings the very same deference that EPA so often
claims it should receive when it holds the primary role in developing a
substantive standard.
Response: EPA addressed these very general comments in our February
6, 2013 supplemental proposed disapproval and addresses these them
further in our responses to the more specific comments that follow. The
commenters fail to note that the states' (December 31, 2009 and
November 5, 2010) SIPs that included thousands of pages lacked, among
other things, actual NOX emission limits for taconite
facilities. The States are not entitled to deference in this instance
because of the numerous gaps and inadequacies in their SIPs, as
described in the supplemental proposed disapproval and in the responses
to comments that follow.
Comment: Minnesota and Michigan properly concluded that low
NOX burners were not available or technically feasible for
taconite furnaces at the close of the public comment periods. Pursuant
to the BART Guidelines, Minnesota and Michigan identified low
NOX burners as an available control technology at Step 1 of
the BART analysis. ``Available'' at Step 1 means that the technology
has a ``practical potential for application to the emissions unit.'' At
Step 2 of the
[[Page 59828]]
BART analysis, the technologies in Step 1 are evaluated for technical
feasibility. To be considered technically feasible, technology that has
not been installed and operated on the source type in question must be
both ``available'' and ``applicable.'' Availability under Step 2 is
defined differently than it is under Step 1. Under Step 2,
``availability'' means commercial availability. A technology is only
considered commercially available if it is past bench scale and pilot
testing stages and has reached the licensing and commercial sale
stages. ``Applicability'' is a technical determination that takes into
account the technical difficulties that may prevent application of
available technology to the source in question, such as size and space
constraints, reliability, and operating problems. The ability to secure
vendor guarantees is also relevant to the applicability determination.
EPA attempts to argue that the general existence of low
NOX burner technology in other, dissimilar applications
means they are technically feasible for the combustion zones of
taconite furnaces under Step 2 of the BART analysis. On the contrary,
the BART Guidelines identify the close of a state's public comment
period as the cut-off point after which newly ``available''
technologies need not be considered by the states. The public comment
period for Minnesota's BART technology determinations closed on May 16,
2008, and its supplemental comment period on other aspects of the
proposed SIP ended September 3, 2009. Michigan's public comment period
on its non-EGU BART technology determinations closed on June 23, 2010.
Thus, based on Minnesota and Michigan's reasoned decisions to follow
the BART Guidelines, only technologies that were ``available'' on May
16, 2008, and June 23, 2010 (respectively) could be considered.
EPA also implies that the States did not evaluate low
NOX burners at all in their BART determinations when in fact
both States did identify low NOX burners as ``available'' at
Step 1 for every taconite facility. Minnesota and Michigan acknowledged
that low NOX burners had been used in other applications
such as boilers, but properly determined that low NOX
burners were ``available'' under Step 2 only for the preheat sections
of the furnaces. None of Cliffs' facilities operate preheat burners, so
low NOX burners were not technically feasible for any of its
indurating furnaces.
Furthermore, EPA's statement that Minnesota possessed information
suggesting that low NOX burners were ``likely to be a
successful technology'' for the main burners of taconite furnaces in
2009 is wholly without support. The record demonstrates that Minnesota
and Michigan properly determined that low NOX burners were
not ``available'' for the combustion zones of taconite furnaces by the
end of the public comment periods. At the time Minnesota was developing
its SIP, low NOX burners had never been installed in an
application comparable to a taconite main burner. The Minntac studies
EPA cites to in support of its claim of commercial availability only
further support the States' positions. Minntac did not even begin pilot
testing a new low NOX burner for its grate-kiln furnaces
until May 2010. That leaves no doubt that low NOX burners in
the combustion zone were unavailable at the time Minnesota was making
BART technology determinations because its public comment period closed
months before pilot testing even began. That testing began four months
after the close of Michigan's public comment period and continued
through 2011. Minntac's status reports from May and December 2011
further confirm that low NOX burners were still in the
development stage through 2011. Further, Minntac identified a number of
problems that required modifications to the initial burner and other
adjustments. Despite all of these adjustments, Minntac never achieved
the desired emission rates while combusting coal. The Essar low
NOX burner studies for straight-grate furnaces were even
further behind in the testing stages than the Minntac studies at the
time of both SIP submissions. The \1/4\-scale test facility was not
built until 2011 and final results were not submitted until August
2011.
Finally, the information on low NOX burners discussed
above was available to EPA at the time it proposed approval of
Minnesota's regional haze SIP in January 2012. EPA cannot now claim
that it ``did not have the relevant information'' on low NOX
burners until after it initially proposed approval of Minnesota's
regional haze SIP.
Response: Due to the complexity of Cliffs' lengthy comment and the
interconnectedness of its constituent arguments, it is being addressed
by a single response. However, each of the four major points raised by
Cliffs are specifically identified and addressed accordingly.
EPA agrees with Cliffs that a technology that is both ``available''
and ``applicable'' is technically feasible under Step 2 of the case-by-
case BART analysis required under the BART Guidelines. Cliffs is also
correct that the term ``available'' has somewhat different meanings
under Step 1 and Step 2. Under Step 1, ``[a]vailable retrofit control
options are those air pollution technologies with a practical potential
for application to the emission unit and the regulated pollutant under
evaluation.'' EPA interprets this use of the term ``available'' broadly
to include all potential control options, even those that are cutting-
edge or are not currently in use at the source type in question. Under
Step 2, ``[a] control technique is considered available . . . if it has
reached the stage of licensing and commercial availability.'' EPA's
interpretation of this use of the term ``available'' is slightly less
broad, and includes only those control options that can be obtained
through ordinary commercial channels.
However, EPA strongly disagrees with Cliffs attempts to conflate
the concept of ``availability'' under Step 2, with the separate concept
of ``applicability.'' While it is true that control technologies that
are not ``available'' through ordinary commercial channels by the end
of a state's public comment period need not be considered as BART, the
same is not true with regards to the question of ``applicability.'' In
regards to this latter question, states ``need to exercise technical
judgment in determining whether a control alternative is applicable to
the source type under consideration.'' Moreover, ``a commercially
available control option will be presumed applicable if it has been
used on the same or a similar source type.''
In the instant context, low NOX burners are an
``available'' control technology under Step 2 because they can be
obtained through ordinary commercial channels. Indeed, Fives North
American and other low NOX burner manufacturers would
presumably dispute the notion that their products, which have been on
the market for decades, are not commercially available as Cliffs
contends. As a result, Minnesota and Michigan were required to exercise
their technical judgment as to whether low NOX burners were
``applicable'' to taconite furnaces. In light of the successful
installation of low NOX burners at Minntac and Essar, which
both states were aware of prior to the ends of their respective public
comment periods, Minnesota and Michigan were further required to
presume the applicability of low NOX burners for taconite
furnaces because they were in use not just at a similar source type,
but at the same source type. Since neither Minnesota nor Michigan
adequately rebutted this presumption or responded
[[Page 59829]]
to comments, but instead relied primarily on cursory technical
feasibility analyses performed by the taconite companies and their
contractors in 2006, the states did not comply with the BART Guidelines
or reasonably ``take into consideration the technology available'' or
determine the ``best system of continuous emission reduction.'' See 40
CFR 51.301 and 51.308(e)(1)(ii)(A).
Contrary to the commenters' assertions, both states were aware that
low NOX burners had been successfully installed on two lines
at U.S. Steel's Minntac facility prior to the end of their respective
periods for public comment.\1\ In a June 23, 2010, letter to the
Michigan Department of Natural Resources and Environment (now the MDEQ)
regarding the state's draft regional haze SIP, EPA commented that ``a
low-NOX main burner firing solid fuels'' had been installed
at Minntac and that ``work done by other companies had demonstrated
that burner designs that lower flame temperature can reduce
NOX formation in taconite furnaces.'' \2\ Similarly, in a
February 10, 2012, letter to the Minnesota Pollution Control Agency
responding to the state's draft regional haze SIP supplement for
taconite facilities, EPA explained in detail that ``U.S. Steel has
demonstrated the development and use of low NOX main burners
that achieve 70 percent NOX reduction on its indurating
lines.'' \3\ In addition to these comments, both states received
comments regarding the technical feasibility of low NOX
burners from the Forest Service as well. Therefore, both Michigan and
Minnesota were aware that low NOX burners had been
successfully applied to indurating furnaces, and the commenters'
arguments that the results of these studies somehow constitute ``new''
information are without merit.
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\1\ The comment period for Michigan's regional haze SIP closed
on June 23, 2010. The comment period for the Minnesota's regional
haze SIP supplement regarding BART at taconite facilities closed on
February 3, 2012, but EPA was granted an extension to submit
comments. EPA's comments were submitted on February 10, 2012, and
were received and considered by MPCA.
\2\ See Michigan Regional Haze plan: EPA Letter to Michigan
Department of Environmental Quality Regarding BART, May 24, 2012
(Docket EPA-R05-OAR-2010-0954-0008).
\3\ See MN Haze plan, EPA 2-10-12 comments to MPCA in MN May
8,2012, Suppl. Regional Haze SIP submittal (Docket EPA-
R05-OAR-2010-0037-0028).
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Finally, even if information regarding the technical feasibility of
installing low NOX burners to indurating furnaces was not
available to Minnesota or Michigan, EPA nonetheless had a duty to
consider any new information that subsequently arose when reviewing the
states' SIPs. The Ninth Circuit recently held that ``if new information
indicates to EPA that an existing SIP or SIP awaiting approval is
inaccurate or not current, then, viewing air quality and scope of
emissions with public interest in mind, EPA should properly evaluate
the new information and may not simply ignore it without reasoned
explanation of its choice.'' Sierra Club v. EPA, 671 F.3d 955, 967 (9th
Cir. 2012). Thus, EPA is required, at a minimum, to take new
information into account during the SIP approval process and, if
necessary, alter its final decision accordingly.
EPA also disagrees with the commenters' assertions that low
NOX burners are only commercially available for the preheat
sections of indurating furnaces. The commenters statement that
``Minnesota and Michigan acknowledged that low NOX burners
had been used in other applications such as boilers, but properly
determined that low NOX burner technology was `available'
only in the preheat sections of the furnaces'' again confuses the
concepts of availability and applicability. A control technology cannot
be commercially available for one application, such as the preheat
sections of the indurating furnaces, but not commercially available for
another. Rather, the question is whether the commercially available
control technology can be applied to the different situations.
In regards to the installations at Minntac and Essar, a January 30,
2009, report prepared by Hatch for U.S. Steel strongly recommended that
U.S. Steel pursue all available technology and potential options
pertaining to reducing the amount of NOX emissions generated
by the rotary kiln at the Minntac facility, including the use of a low
NOX burner. The feasibility of low NOX burners on
straight-grate kilns is documented in a September 19, 2011 summary of
findings presented to the Minnesota Pollution Control Board by Fives
North American Combustion, Inc. (Fives) for Essar. Also, reports on the
success of U.S. Steel's efforts to use low NOX burners were
submitted to Minnesota in 2010 and 2011, well before the close of the
State's comment period on its supplemental regional haze SIP in
February 2012. These reports, coupled with the comments both Minnesota
and Michigan received regarding the applicability of low NOX
burners to taconite facilities, put the States on notice that the
cursory technical infeasibility determinations in their regional haze
SIPs were not only inadequate, but inconsistent with a documented
installation.
Finally, EPA acknowledges that it was aware that low NOX
burners were being installed at U.S. Steel's Minntac facility in 2010,
two years before EPA initially proposed conditional approval of
Minnesota's BART determinations for taconite facilities. However, EPA
only became aware of the U.S. Steel test reports from Minntac
confirming the successful implementation of low NOX burners
from comments received in response to the January 2012 proposed
rulemaking. Moreover, commenters urged EPA to take a harder look at the
technical feasibility of low NOX burners and the adequacy of
Minnesota's BART determinations for taconite facilities. EPA considered
the comments and performed additional analysis, which is exactly the
purpose of the public notice and comment period. Agencies are not
required to finalize proposed decisions in the face of public comments
that present compelling evidence that an agency's proposed course of
action was incorrect.
Comment: Minnesota and Michigan properly determined that Good
Combustion Practices (GCP) are BART for taconite furnaces. After
identifying all technically feasible control options, the states
performed cost-effectiveness analyses for each furnace and determined
that no other controls would result in cost-effective NOX
reductions. GCP will ensure that furnaces are running at their most
efficient capabilities to complete combustion while consuming as little
fuel as possible, which will reduce fuel-based NOX emissions
and minimize thermal NOX by producing only the heat needed
to make quality pellets. The states performed a proper BART analysis,
weighing the five statutory factors to arrive at this control option,
and EPA has no grounds for questioning that judgment.
EPA cannot credibly attack the legitimacy and enforceability of
GCP, as EPA itself already requires taconite furnaces to employ GCP as
part of the Taconite MACT, which requires all sources to ``identify and
implement a set of site-specific GCP for each type of indurating
furnace'' that ``correspond to . . . standard operating procedures for
maintaining the proper and efficient combustion within each indurating
furnace.'' GCP includes maintaining minimum combustion temperatures and
maximum CO concentrations in the furnace exhaust gases, and ensuring
proper burner alignment and fuel-air distribution and mixing. GCP also
requires routine inspections, preventative maintenance, and performance
analyses. The requirement to employ and demonstrate compliance
[[Page 59830]]
with GCP is a federally enforceable requirement that has been
incorporated by reference into the Title V permits for each facility.
The operation and maintenance plans containing these GCP requirements
were submitted to the state for each facility to ensure that they
satisfied the GCP requirements set forth by EPA.
All of Cliffs' facilities were required to employ GCP as part of
their Taconite MACT compliance obligations by October 2006, and were
necessarily employing GCP when they were later required by
Administrative Order (AO) to conduct NOX testing to
establish numeric NOX BART emission limits. There is no
merit to EPA's contention, therefore, that sources failed to use GCP
while testing under a ``worst-case'' scenario to establish
NOX BART emission limits. BART limits apply at all times,
and therefore it is important to establish a limit that sources can
meet under all operating conditions. As such, the state AOs required
extended testing to gather over 150 data points that reflected GCP
under a full range of normal operating conditions. The GCP-based
NOX limits act as further assurance that sources will
continue to employ GCP to remain in compliance.
EPA may not make an about-face on its approval of GCP and the
emission limits reflecting these controls when nothing has changed
since its proposed approval. EPA has no basis for changing its position
and claiming that the new federally enforceable practices and emission
limits it had already found acceptable are no longer satisfactory.
Contrary to EPA's claims, the amended state SIPs continue to require
GCP along with process modifications, and continue to contain emission
limits (or plans to develop emission limits) based on those controls.
Even if EPA could demonstrate that additional NOX
reduction technologies were available during the states' assessment of
BART for taconite furnaces, NOX BART demonstrations will not
materially change because availability is just one of the criteria for
a BART determination. Low NOX burner technologies also fail
as BART because they will not produce any discernible visibility
improvement.
Response: EPA does not agree that Minnesota and Michigan properly
determined that GCP is BART for taconite furnaces and that it
identified all technically feasible control options. In its one-size-
fits-all approach to establishing BART, with an essentially identical
analysis for each taconite facility, Minnesota dismissed low
NOX burners in the indurating section of the furnace based
on speculation that they would adversely affect pellet quality.
However, not only was this position unsupported by corroborating data,
but U.S. Steel has demonstrated the technical feasibility of low
NOX burners and documented that they do not adversely affect
pellet quality.
EPA also disagrees that GCP underwent a five factor analysis as
required by the Act and the Regional Haze Rule. In appendix 9.3 of its
2009 BART Determinations, MPCA states: ``However, the MPCA believes
that neither ArcelorMittal nor the MPCA has sufficient operating
parameter data or emissions data to be able to assess whether current
combustion practices constitute `good' combustion practices. . . .''
MPCA basically established an undefined concept, with no specified
emission reduction potential, as BART. Without identification of a
specific and quantifiable control requirement, there is no basis for a
five factor analysis. There is similar language for Minnesota's other
taconite facilities. Michigan also identified an unspecified GCP,
without a NOX emission limit, as BART. In addition,
Minnesota's 2012 regional haze SIP supplement failed to provide any
indication of what GCP is and what effect it has on emissions.
The commenters' support of GCP lacks merit for several reasons,
especially because GCP is not defined by Minnesota or Michigan. Neither
State's regional haze SIP contained an assessment of combustion
practices, an analysis of operating parameters in relation to
emissions, or a definition of operating practices that constitute GCP.
Such an assessment would be needed to establish GCP, and the lack
thereof further diminishes GCP as being a meaningful control measure
for the taconite furnaces. In addition, GCP is not typically considered
to be a NOX reduction technique. As a relevant example, the
January 30, 2009, NOX Reduction Analysis performed by Hatch
for U.S. Steel's Minntac facility fails to list GCP as a potential
NOX reduction technology for an indurating furnace. As
another example, the 2008 BACT analysis for JEA--Greenland Energy
Center Units 1 and 2 also fails to list GCP as a potential
NOX control. This analysis goes on to state that measures
taken to minimize the formation of NOX during combustion
inhibit complete combustion, which increases the emissions of carbon
monoxide (CO). In other words, GCP, which seeks to promote complete
combustion rather than inhibit it, would tend to increase
NOX emissions. The ``September 2010 We Energies Biomass
Energy Project Revised Control Technology Review for Carbon Monoxide
Emissions for the Biomass-Fired Boiler'' also discusses the inverse
relation between NOX emissions and CO emissions, indicating
how improving combustion efficiency can increase NOX
emissions. In conclusion, the basic principles of combustion do not
vary according to the nature of the burner application and GCP is not
an accepted approach to reduce NOX emissions.
The commenters state that GCP is already required under other
Federal regulations, including the Taconite MACT rule. However, GCP for
the MACT is not the same as GCP for NOX. GCP for the MACT is
to control products of incomplete combustion (PIC). To minimize PIC,
the operating conditions targeted are generally the opposite of those
that would be targeted for reducing NOX. The Taconite MACT
explains at 68 FR 61883: ``The basic method used in reducing
NOX emissions is a reduction in combustion temperature,
which is the opposite strategy needed for minimizing PIC (i.e.
increasing combustion temperature).'' Therefore, the operation and
maintenance plans referred to by the commenters to ensure that they
satisfied the GCP requirements in the Taconite MACT would therefore
specify conditions that would increase NOX emissions, not
reduce them.
Finally, the commenters' statement that ``[l]ow NOX
burner technologies also fail as BART because they will not produce any
discernible visibility improvement'' is not germane to this rulemaking.
Minnesota and Michigan's regional haze SIPs did not assess the
visibility improvement associated with low NOX burners, or
conduct a five factor analysis at all, because the States improperly
rejected the technology as technically infeasible. To the extent that
Cliffs is attempting to comment once again on EPA's visibility analysis
for low NOX burners that was conducted as part of the FIP,
that rulemaking has been finalized.
Comment: Michigan modeling adequately demonstrates that
SO2 emissions from Tilden do not cause visibility
impairment. Michigan conducted source-specific modeling using CALPUFF
to justify its conclusion that SO2 emissions from Tilden
Mining do not cause visibility impairment in Class I areas. When
Cliffs' consultant conducted the proper CAMx modeling for Tilden, the
results fully supported Michigan's conclusion that SO2
emissions do not cause visibility impairment. On the 98th percentile
most impacted day, the visibility improvement at Isle Royale, when
isolating the sulfate impact, was just 0.14 deciviews. Cliffs' updated
visibility
[[Page 59831]]
modeling fully supports Michigan's determination that SO2
reductions at Tilden Line 1 will not create sufficient visibility
improvement to justify the expense of controls.
Response: This comment is of limited relevance because the issue
raised by this comment was not a basis for disapproval. However,
Cliffs' own modeling shows a combined impact of 0.24 deciviews at Isle
Royale, Voyageurs, and Boundary Waters. In the discussion of the
modeling results, Cliffs' report provides visibility impact thresholds
to provide context for these results. The report states that a 0.10
deciview difference was defined by other states, such as the
northeastern states' MANE-VU Regional Planning Organization, as the
degree of visibility improvement below which additional controls would
not be justified. Under such a threshold, even the 0.14 deciview
improvement Cliffs' modeled for Isle Royale (if proven to be accurate)
would be sufficient to require cost-effective controls.
Comment: CEMS are not required by the CAA, EPA's regulations
implementing the Regional Haze program, or the BART Guidelines. The
states instead have flexibility to choose an appropriate compliance
demonstration method as long as it is sufficient to show compliance or
noncompliance, contains a reasonable averaging period consistent with
established reference methods, and provides adequate recordkeeping and
reporting for the agency to confirm the source's compliance status.
Also, consistent with the monitoring flexibility authorized under the
BART Guidelines, MPCA accepted CEMS data or a ``comparable method of
emission estimation'' from each BART-affected source for purposes of
establishing BART emission limits.
Response: This comment fails to acknowledge or address the primary
concern identified in EPA's supplemental proposed disapproval, namely
that absent a CEMS requirement, EPA did not find the emission limits in
Minnesota's regional haze SIP to be enforceable. Even with a 30-day
stack testing option in the SIP, EPA believes (as discussed in the
supplemental proposed disapproval) that the results from this method
could be challenged at any time as not representative. Minnesota's
regional haze SIP lacked clarity as to the method to be used to
determine compliance, while Michigan had no relevant emission limits
whatsoever addressing BART requirements.
Comment: EPA does not require CEMS in many of its rules, implicitly
acknowledging that CEMS are not necessary to demonstrate continuous
compliance with emission limits. EPA has adopted parametric monitoring
systems for other regulatory requirements that are designed to ensure
compliance with health-based emission limits, including the Taconite
MACT.
Response: EPA does acknowledge that not all regulations published
in the Code of Federal Regulations require a CEMS. However, EPA
stresses that SIPs are approvable only if the emission limits contained
therein are enforceable, which requires some method(s) to demonstrate
compliance. EPA continues to believe that Minnesota failed to require
appropriate methods to demonstrate compliance, while Michigan's SIP
contained no NOX BART limit at all. Minnesota's limits are
expressed as 30-day rolling averages and CEMS are needed to determine
compliance with a 30-day rolling average on a continuing basis, but
Minnesota in many cases does not require CEMS to provide data for
evaluating compliance. In the absence of CEMS, Minnesota requires
``stack testing . . . for 30 hourly data points.'' Even if the average
of the 30 data points exceeds the emission limit, the data can be
contested as not necessarily representative of the 720 hours that are
in a 30-day average. Minnesota has not addressed whether 720
consecutive hours of stack testing is even practicable, though none of
the data used to develop emission limits appears to have been collected
in this manner.
Comment: Minnesota and Michigan were aware of numerous operating
difficulties that have been experienced with CEMS usage at taconite
furnaces. Unlike EPA, the states understood that installing CEMS on a
taconite furnace is significantly more complex than installing CEMS on
a boiler. United Taconite found it necessary to seek multiple approvals
from MPCA to extend its CEMS certification deadline due to CEMS
maintenance difficulties, and U.S. Steel's Minntac facility, which uses
CEMS for NOX monitoring, experienced similar problems with
its original CEMS installation for lines 6 and 7.
Response: Comments regarding the difficulties of operating CEMS are
not germane to the question of whether the limits adopted by Minnesota
can be properly enforced without them. In any case, the initial
problems faced by U.S. Steel's Minntac facility were resolved shortly
after they occurred and have not reoccurred since then. EPA continues
to believe that Minnesota's SIP failed to require appropriate methods
for assessing compliance with its taconite plant emission limits.
Comment: Minnesota and Michigan sensibly concluded that requiring
CEMS would add an unnecessary additional cost to their BART
determinations that was not warranted. This conclusion is further
supported by updated cost analyses for CEMS at Cliffs' taconite
furnaces, which indicate capital costs of $1 million to $1.4 million
per furnace for CEMS installation, plus hundreds of thousands of
dollars in additional operating costs for each emission unit.
Response: Again, this comment appears to be an untimely comment on
EPA's FIP and is not germane to EPA's proposed finding that Minnesota
did not provide suitable methods for enforcing its emission limits.
Cliffs provides a table in attachment B to its comments that lists
installed capital costs of CEMS. As one example, the installed capital
cost for Hibbing Line 1 is listed at $1.2 million dollars. The table
also lists additional costs associated with this line's CEMS,
including: (1) Annual labor at $311,250 and (2) parts and equipment at
$97,600 per year, estimating the net present value (NPV) of installed
CEMS to be $4,430,922. EPA used the number of CEMS that Cliffs
specified it would need for Hibbing Line 1, as well as some additional
costs (like scaffolding and platforms for brand new installations), in
its standard CEMS cost spreadsheet (available at: http://cfpub.epa.gov/oarweb/mkb/contechnique.cfm?ControlID=26). Under this spreadsheet, EPA
was unable to come close to duplicating the costs claimed by Cliffs.
EPA is confident that the installation of CEMS at Cliffs' facilities
will be substantially less than $1.0 to $1.4 million dollars/furnace.
Even under very extreme circumstances, costs for multiple CEMS would
barely reach one-third of the costs claimed by Cliffs.
Comment: Minnesota made all pertinent aspects of the BART
determinations enforceable through Administrative Orders (AOs). First,
EPA questions Minnesota's decision to express the SO2 limits
as lbs SO2/long ton of pellets produced for Northshore and
Hibbing, claiming that ``pellet production is not routinely measured''
and that the AOs do not require recordkeeping of pellet production.
However, pellet production must be routinely measured for business
purposes, as finished pellets make up the entire sales business of each
plant. Production tonnage is measured and cross-checked by a series of
calibrated conveyer belt scales on a continuous basis.
[[Page 59832]]
Second, EPA questions the enforceability of NOX emission
limits for Hibbing because the AO for that facility provides Hibbing an
opportunity to demonstrate the NOX limits in the AO are not
feasible. Enforceable NOX limits apply to Hibbing at all
times.
Finally, EPA's concerns over the enforceability of the CEMS
requirement for Hibbing are similarly groundless. The AO requires
Hibbing to submit a plan to install a CEMS on Line 2 within 60 days of
the effective date of the AO, and installation and certification of the
CEMS no later than one year from the due date of the plan.
Response: EPA is not suggesting that Cliffs fails to measure pellet
production sufficiently for sales and other business purposes. However,
there is no indication that Cliffs measures the quantity of finished
pellets produced each day on each line. Such daily measurements on each
line would be necessary to establish compliance with a limit measured
in lbs SO2/long ton of pellets, on a 30-day rolling average,
as specified in the AOs. Although the AOs contain a general requirement
for retaining records of operational parameters related to emissions,
there is no explicit requirement for maintaining daily records of the
finished production from each line. Such records would be necessary for
determining compliance with the lbs SO2/long ton limits.
With respect to the commenters' second point, EPA agrees that
Minnesota set a NOX limit that will apply to Hibbing's line
2. However, there are no specific criteria in the Minnesota SIP or the
AO for Hibbing to ensure that an alternative limit, were it to be
established, would be set in such a manner so as to satisfy BART. Also,
the AO did not provide that the alternative limit had to be in the form
of a SIP revision so as to be Federally enforceable as required by the
Act.
Finally, EPA understands that the AO requires Hibbing to submit a
plan to install a CEMS on Line 2, and possibly on Lines 1 and 3.
Although there is an explicit requirement for a plan that provides for
installation of the CEMS, there is not an actual requirement that the
CEMS be installed.
Comment: Michigan and Minnesota appropriately determined BART for
SO2 after conducting a case-by-case evaluation of taconite
pelletizing furnaces. Minnesota concluded that existing wet
scrubbers for particulate control used at the Hibbing, Northshore, and
United Taconite Line 1 furnaces would constitute BART when operated to
also control SO2 emissions. Minnesota's BART determination
for United Taconite Line 2 was complicated by an intervening expansion
project that relied on fuel blending to reduce emissions. Minnesota set
the numeric BART limits for United Taconite at a level more stringent
than the level the wet scrubbers alone were expected to consistently
achieve. Cliffs retained the flexibility under the SIP to meet this
SO2 limit by installing a polishing scrubber or by adjusting
the sulfur content in its fuel blend.
EPA claims that Minnesota's BART determination for United Taconite
is not approvable because it did not reconsider the cost-effectiveness
of flue gas desulfurization (FGD) after the expansion project. However,
EPA cannot reject the SIP on this basis because EPA's own BART
determination, in the final taconite FIP, also concluded that FGD is
not cost-effective for United Taconite. Given United Taconite's ability
to blend existing fuels, United Taconite's anticipated actual baseline
SO2 emission rate will be low enough to render a reduction
from FGD not cost-effective. EPA reached the same conclusion that
Minnesota reached in its SIP that BART for SO2 at United
taconite was an emission limit, not a control device. The FIP emission
limit reflects a significant SO2 reduction that can be
accomplished through fuel blending or polishing controls, which is
precisely the BART technology determination that EPA claims to object
to in the SIP. The 0.6-percent sulfur content that EPA adds in the FIP
does not reduce emissions and does nothing to advance regional haze
goals. EPA's objection to Michigan's SO2 BART determination
for Tilden Line 1 must fail on the same basis. Tilden has also
indicated that it will adjust fuels to ensure that baseline
SO2 emissions cannot justify FGD as a cost-effective
control. Therefore, Michigan appropriately set an SO2 limit
for Tilden that did not reflect expensive add-on controls.
Response: EPA's FIP did not require FGDs because in November, 2012,
EPA agreed that FGDs would not be necessary at United Taconite and
Tilden because Cliffs stated an intention at that time to switch to
lower sulfur fuels that would result in lower SO2 emissions.
However, Minnesota and Michigan's BART analyses were based upon the use
of high sulfur fuels.
Therefore, this comment is largely misdirected because it is based
upon EPA's FIP and not on the adequacy of Minnesota and Michigan's BART
determinations. The commenter's assertion that EPA reached the same
conclusion that Minnesota reached in its SIP is irrelevant because EPA
made its determination based upon United Taconite's anticipated use of
low sulfur fuels (with much lower SO2 emissions) than the
high sulfur coal in use by United Taconite currently, and upon which
Minnesota's determination of BART was based.\4\ EPA agreed that FGDs
are not BART at this anticipated lower emission rate, but does not
agree that FGDs are not BART when United Taconite is burning high
sulfur coal. The commenter goes on to object to the 0.6-percent sulfur
content limit in the FIP. This sulfur content restriction is also not
relevant to whether or not Minnesota's SIP is approvable because it was
neither suggested as a control option by the commenter at the time of
Minnesota's rulemaking, nor considered by Minnesota.
---------------------------------------------------------------------------
\4\ As indicated in an 11-29-12 email exchange, Cliffs agreed to
use lower sulfur fuels with the result of reducing its
SO2 emissions by half.
---------------------------------------------------------------------------
EPA therefore maintains its position that Minnesota improperly
rejected the use of FGD as a cost-effective technology for reducing
SO2 emissions from United Taconite's two lines. Also, as
discussed in the August 15, 2012, proposed action, EPA believes that
flue gas scrubbing, particularly in combination with proper fuel
blending, is considerably more cost-effective than the cost-
effectiveness estimates in Minnesota's regional haze SIP. Furthermore,
subsequent to Minnesota's initial BART analysis, United Taconite
switched to using high sulfur fuels on both of its lines, thus making
FGD a more appropriate control measure to be considered.
Similarly for Michigan, EPA agreed that if Tilden switches to 100-
percent natural gas,\5\ the use of an FGD would not be cost-effective.
However, Michigan's BART determination was based upon the use of high
sulfur coal. As indicated in EPA's August 15, 2012 proposed action, EPA
determined that an FGD would be more cost-effective than indicated by
the Michigan regional haze SIP, and an FGD was therefore proposed as
BART.
---------------------------------------------------------------------------
\5\ As indicated in an 11-29-12 email exchange, Cliffs agreed to
switch to natural gas, thereby reducing its SO2 emissions
by at least 80 percent.
---------------------------------------------------------------------------
Comment: MPCA's statistical analysis establishing SO2
limits for the Hibbing facility is correct because the data is normally
distributed. Barr Engineering provided an analysis showing that the
data is normally distributed. The approach Minnesota used to establish
emission limits for each facility was well within the discretion
afforded to states to identify BART emission limits.
Response: Non-parametric SO2 emissions data appear to be
typical across the industry. EPA agrees,
[[Page 59833]]
however, that the available data for the majority of Hibbing's lines
appear to be normally distributed.\6\ However, as discussed in greater
detail in the supplemental proposal, MPCA did not correctly apply the
upper predictive limit (UPL) equation for normally distributed data.
See 78 FR 8482-8483. If that equation were applied properly, the
resulting limit for Hibbing would be significantly lower than the limit
set by MPCA. In addition, the limits set by MPCA were expressed in
terms of lbs SO2/long ton of pellets produced. As discussed
in the supplemental proposal, pellet production is not routinely
measured at the end of an indurating furnace. Further, the AOs do not
specify methods for determining pellet production by indurating furnace
and do not specify any requirement to keep records of pellet
production.
---------------------------------------------------------------------------
\6\ It should be noted that the Barr Engineering analysis
combined the data from the different lines. Because even lines of
the same size can function differently, it would be more appropriate
to consider the lines separately.
---------------------------------------------------------------------------
Comment: The SO2 emission limits set by EPA in the FIP
are identical to the emission limits set by Minnesota for Northshore
and similar to the emission limits set for Hibbing. Therefore, even if
EPA has legitimate technical corrections, the resulting changes are not
substantive and should not result in wholesale rejection of the
Minnesota regional haze SIP. These issues should have been resolved in
discussions with Minnesota before EPA issued a FIP.
Response: EPA disagrees. The SO2 emission limits set by
Minnesota were expressed in terms of lbs SO2/long ton of
pellets produced, while the limits set by EPA are expressed in terms of
lbs SO2/hour. No demonstration has been made that the limits
are equivalent. Furthermore, the emission limit set by EPA in the FIP
for Northshore is temporary and must be recalculated after CEMS data
has been collected.
Comment: Minnesota and Michigan were not required to reopen the
BART technology determinations to accommodate EPA's unreasonably
lengthy SIP review, and EPA may not reject the SIPs on this basis. EPA
must approve SIPs that satisfy all applicable regulatory requirements
pursuant to CAA section 110(k)(3). The public comment periods on
Minnesota and Michigan's BART determinations closed on May 16, 2008,
and June 23, 2010, respectively. Only technologies that were
commercially available under Step 2 of the BART analysis at that time
could be considered by the states in making BART technology
determinations. EPA may not disapprove a state SIP because the states
did not include information in their analyses that was not in existence
at the time the technology determinations closed.
While the state's determinations were awaiting EPA action,
Minnesota was engaged in an extensive process of collecting emissions
data and performing analyses to set emission limits that reflected
those technology determinations. The states must be able to rely on
their BART determinations as they proceed to convert them to emission
limits.
Response: As discussed previously, and contrary to the commenters'
assertions, low NOX burners were ``available'' at the end of
both states' public comment periods and have been for decades. As such,
both states were required to determine whether low NOX
burners were applicable to taconite furnaces, a task which they failed
to do as neither state adequately considered the installation at U.S.
Steel's Minntac facility or other available information.
While immaterial, EPA notes that the commenters provide no support
for their assertion that the States were entitled to rely on their
prior BART determinations as they ``proceeded to convert them to
emission limits.'' On the contrary, the Act explicitly requires that
all BART determinations be in the form of enforceable emission limits.
See CAA sections 110(a)(2)(A) and 169A(b)(2). Neither the Act nor the
BART Guidelines contemplate a scenario in which states are permitted to
select a technology as BART, walling off that decision from further
public scrutiny and comment, and then wait several years before setting
emission limits to complete the BART process, ignoring any new
information brought to their attention in the process.
Comment: The information that became available after the close of
the states' public comment periods only further supports Minnesota and
Michigan's initial BART determinations. Serious concerns continue to
exist over the feasibility of low NOX burner technology on a
case-by-case basis, and current cost and modeling information suggest
that application of this technology would be both more expensive and
less impactful from a visibility standpoint than EPA presumes.
Furthermore, the most current cost information on FGD technology
confirms that FGD technology is not a cost-effective control option for
United Taconite or Tilden. Minnesota and Michigan made proper BART
determinations in 2008 and 2010, and none of the information EPA cites
provides grounds for changing these determinations.
Response: EPA published the February 6, 2013, supplemental proposed
disapproval to provide additional information regarding EPA's views on
Minnesota and Michigan's regional haze SIPs and to solicit additional
comment regarding the proposal to disapprove the SIPs for failing to
require BART at the applicable taconite plants. EPA is not soliciting
further comment on its FIP as the supplemental proposal only addresses
whether the states' SIPs should be disapproved for failing to provide
an adequate analysis and require BART for applicable taconite plants.
The commenters specifically raise the following points: (1) Low
NOX burner technology is not technically feasible for
straight-grate furnaces; (2) low NOX burner technology is
not technically feasible for grate-kiln furnaces; (3) updated cost
analyses demonstrate that low NOX burner technology is not
cost-effective in light of limited visibility improvements; and (4)
updated cost analyses demonstrate that FGD technology is not cost-
effective for Tilden or United Taconite in light of limited visibility
improvements. These points are not directly relevant to the disapproval
of Minnesota and Michigan's regional haze SIPs for taconite plants.
Indeed, given the conclusory nature of Minnesota and Michigan's SIPs
regarding the feasibility of low NOX burners at these
facilities, these comments appear to be seeking to provide alternative
justifications for the States' BART determinations that the plans
themselves do not rely upon.
In any case, the commenters' review of the feasibility of low
NOX burners reflects an overly narrow view of technical
feasibility. Any installation of control equipment at a facility that
does not already have that equipment in place requires engineering to
determine how best to design the equipment to work most effectively
given the particular features of the particular facility. The
commenters appear to be arguing that low NOX burners cannot
be considered technically feasible because, for example, the
engineering work done to design low NOX burners for the
Essar facility cannot be directly applied to other facilities. The
commenters cite selected design features that differ from facility to
facility, such as the number of windboxes, but the commenters provide
no reason for EPA to believe that any of these features pose problems
that could not be solved by appropriate engineering analysis, just as
has been done at multiple taconite lines and in countless other high
temperature processes in numerous other industries.
[[Page 59834]]
Comments regarding costs and visibility benefits do not speak to
whether Minnesota or Michigan appropriately analyzed these costs and
benefits, and comments regarding time for installation appear to be
untimely comments on the FIP that are not relevant to this rulemaking
or the approvability of the States' regional haze SIPs. These issues
are more appropriately discussed in the FIP, which includes a full and
appropriate analysis of BART.
B. Comment by MDEQ and Cliffs
Comment: In spite of the provision in the BART Guidelines that
states: ``[A]ll technologies should be considered, if available before
the close of the State's comment period. You need not consider
technologies that became available after this date,'' MDEQ felt that
additional review was warranted and included in the SIP a requirement
that Tilden must conduct further testing to provide the basis for
NOX emission limits to be incorporated in the air permit for
the Tilden facility. Tilden has since complied and its Permit to
Install No. 148-12 contains an enforceable emission limit.
Response: Michigan has not submitted this permit as part of its
regional haze SIP. To be approvable, emission limits representing BART
must be contained in the SIP itself to guarantee Federal
enforceability. Indeed, the Regional Haze Rule specifically states:
``The State must submit an implementation plan containing emission
limitations representing BART.'' 40 CFR 51.308(e) (emphasis added). The
requirement that BART emission limits be contained in the SIP is
important because states can unilaterally remove or alter permit limits
(that are not otherwise contained in an approved SIP or Federal
standard) without federal approval. Moreover, permits expire.
Consequently, the existence of a limit that Michigan has not submitted
as part of its regional haze SIP cannot be considered to remedy
deficiencies in the SIP.
EPA additionally notes that the NOX limit in Tilden's
permit is 2,270 lbs/hr on a 30-day rolling average. According to Table
3-1 in appendix 9H of Michigan's regional haze SIP, the maximum 24-hour
actual NOX emissions for Tilden were 26,208 lbs/day.
Dividing by 24 results in an emission rate of 1,092 lbs/hr, which is
less than half of the permitted limit. Thus, even if EPA were to agree
that GCP was BART for this facility, Michigan has not demonstrated that
a limit more than twice the facility's maximum actual emissions could
possibly represent GCP.
C. Comments by MDEQ
Comment: The Michigan regional haze SIP provided extensive
documentation of a full and appropriate analysis of BART that meets the
requirements of the CAA.
Response: As discussed in the supplemental proposal, the Michigan
regional haze SIP did not meet CAA requirements because of its failure
to require emission controls that represent BART. The Michigan SIP
defines BART as GCP, but there is no explanation of what GCP is and no
NOX limits representing GCP. Michigan relies on a state
permit that has not been submitted to EPA in the form of a SIP revision
to argue that there is a limit on Tilden's NOX emissions.
For the reasons explained in the prior response, this limit is
insufficient to satisfy the requirements of the CAA and the Regional
Haze Rule.
Comment: There was no information prior to the close of Michigan's
public comment period on June 23, 2010, indicating that low
NOX burners had been successfully utilized on indurating
furnaces operating under the same circumstances as Tilden's grate-kiln
furnace.
Response: In a June 23, 2010, letter to Michigan regarding its
regional haze SIP, EPA stated that ``a low NOX main firing
burner firing solid fuels'' had been installed at Minntac's grate-kiln
furnace,'' (both Minntac and Tilden have grate-kiln furnaces) and that
``work done by other companies had demonstrated that burner designs
that lower flame temperature can reduce NOX formation in
taconite furnaces.'' Even after being notified of the above, Michigan
did not conduct an adequate BART review of this technology in its
regional haze SIP. MDEQ's only response to EPA's comment was that
``[t]he projects and technologies described above were not selected or
proposed for BART, but rather were proposed primarily as projects to be
studied, and were agreed to be completed as part of PSD permitting (not
BART) or enforcement situations. None of the technologies and projects
described above have been established for BART at taconite plants in
Minnesota.'' Such circular logic, that low NOX burners
should not be evaluated for BART because the States had not selected
them as BART, is arbitrary and inadequate.
Comment: The FIP schedule of compliance does not allocate
sufficient time for the permitting process.
Response: While not germane to this rulemaking, EPA notes that MDEQ
has provided no information explaining why Tilden needs more than 26
months to accommodate permitting requirements.
Comment: MDEQ disagrees with the contents of EPA's July 2, 2012,
conversation between EPA, U.S. Steel, and COEN, which is described in
the August 15, 2012, proposed action. It states: ``There is also no
increase in combustion related emissions, such as carbon monoxide or
volatile organic compounds, and there is no reason for SO2
emissions to increase through use of a low NOX burner.''
This conversation failed to recognize that the December 22, 2008
permitting action for the installation and operation of the auxiliary
burners and conversion to low NOX burners included a net
emission increase of 1,607 tons/year of carbon monoxide.
Response: The 2008 permitting action included an emission estimate
only. Newer information from November 2009 letters from COEN and Hatch
document why no increase in CO is expected due to the installation of
low NOX burners. These assertions are further supported by
U.S. Steel's draft permit for Lines 4 and 5 at Minntac, which was put
out for pre-public notice review on May 14, 2013. This permit shows
only a minimal increase in CO emissions according to PSD calculation
methodology.
D. Comments by the National Mining Association
Comment: EPA's proposed disapproval of Minnesota and Michigan's
regional haze SIPs is contrary to the federalism principles embedded in
the CAA. Congress purposely created a cooperative federalism scheme in
the CAA to define the roles of EPA and the states under the regional
haze program. As the DC Circuit Court of Appeals recently noted in EME
Homer City Generation, L.P. v. EPA, 696 F.3d 7, 12 (D.D.C. 2012),
``Under the Clean Air Act, the Federal Government sets air quality
standards, but States retain the primary responsibility (if the States
want it) for choosing how to attain those standards within their
borders. The Act thus leaves it to the individual States to determine,
in the first instance, the particular restrictions that will be imposed
on particular emitters within their borders. (If a State refuses to
participate, the Federal Government regulates the sources directly.)''
Procedurally, this requires states to submit SIPs that address regional
haze and establish BART determinations for sources within their
borders. The states
[[Page 59835]]
then submit these plans to EPA, who must approve them if they satisfy
all regulatory requirements. See CAA section 110(k).
In this instance, both Michigan and Minnesota submitted well-
reasoned SIPs detailing their plans for addressing regional haze
impacts. The entire taconite industry in the United States resides in
these two states, and as a result, Minnesota and Michigan have an
extensive and unparalleled understanding of the taconite mining and
processing industry. Minnesota and Michigan used this industry
knowledge and years of work and technical analysis to arrive at BART
determinations for each BART-eligible taconite furnace. In doing so,
Minnesota and Michigan carefully considered all available information
provided through the end of their public comment periods and used this
information to analyze available control technologies and the
feasibility of installing these control technologies on each taconite
furnace. The states then evaluated this information in light of the
five statutory factors set forth by the CAA.
Minnesota and Michigan performed these evaluations on a case-by-
case basis, in compliance with the CAA and in accordance with EPA
guidance, and sought public comment on their determinations. The states
carefully considered these comments before finalizing their SIPs and
submitting them to EPA for approval on December 31, 2009 (Minnesota)
and November 5, 2010 (Michigan).
EPA is now proposing to disapprove those determinations, not
because the states erred in their reasoning, but because new
information was presented in 2012. This information, a report on low-
NOX burner technology used at the Minntac furnace, was not
available when the states arrived at their BART determinations and it
had not been peer-reviewed or subject to evaluation by the affected
stakeholders. EPA's own guidance establishes a cut-off date for state
technology determinations at the close of the state public comment
period. The States, therefore, were not required to re-open their BART
determinations based on this new information, and EPA does not have the
authority to disapprove a valid and supported SIP based on information
that was not available to the states at the time of their BART
determinations.
EPA claims that it was compelled to consider this new information
submitted during its 2012 public comment period when deciding whether
to approve the SIPs, even if the States were not. EPA certainly could
have considered the new information in many appropriate ways, but it
chose not to. EPA could have shared the report with the States and then
deferred to the States' evaluation of the data. Instead, EPA chose to
ignore the States' assessment that the report was an insufficient
demonstration that the technology was appropriate for the diverse
furnace designs in the rest of the industry. EPA could have solicited a
peer review of the report. Instead, EPA actively ignored the input of
the furnace design engineers at Metso Engineering, who told the agency
repeatedly that the burner designs would require 20-50-percent more
fuel per ton of pellets and could cause pellet quality problems when
installed on other taconite furnaces. EPA arbitrarily included in the
record for its proposed FIP only the information that supported low
NOX burners as BART instead of considering all the
information made available to the agency and conducting the critical
technology review that the CAA requires.
EPA's limited authority under the CAA does not authorize it to
disapprove a SIP and impose a FIP merely because EPA prefers a
different BART outcome. EPA's role is not to gather evidence to support
a predetermined BART decision and actively ignore contrary information.
When the available information does not provide a clear contrary path,
EPA must defer to the states' method for weighing the available
information and to the lawful and appropriate BART decision that arises
from that method.
Response: EPA disagrees with NMA's assertion that ``EPA is now
proposing to disapprove these determinations, not because the states
erred in their reasoning, but because new information was presented in
2012.'' In a June 23, 2010, letter to Michigan regarding the state's
draft regional haze SIP, EPA commented that ``a low NOX main
burner firing solid fuels'' had been installed at Minntac and that
``work done by other companies had demonstrated that burner designs
that lower flame temperature can reduce NOX formation in
taconite furnaces.'' Similarly, in a February 10, 2012, letter to
Minnesota responding to the state's draft regional haze SIP supplement
for taconite facilities, EPA explained in detail that ``U.S. Steel has
demonstrated the development and use of low NOX main burners
that achieve 70 percent NOX reduction on its indurating
lines.'' Therefore, both states were aware that low NOX
burners had been successfully applied to indurating furnaces.
Although NMA states that EPA could have shared the report with the
States and then deferred to the States' evaluation of the data,
Minnesota had this information before EPA and made no apparent use of
it. This information is listed in EPA's February 10, 2012, letter to
Minnesota, which refers to three reports, from April 13, 2010, to
December 1, 2011, informing the MPCA of U.S. Steel's success in
installing low NOX burners on two of its indurating
furnaces. (EPA also provided a copy of this letter to Michigan.) Even
if Minnesota did not want to require general use of a proven technology
on other facilities, there is no conceivable reason why Minnesota
dismissed low NOX burners as BART at the U.S. Steel Minntac
lines that were already using them. Although Metso Engineering ``told
the agency repeatedly that the burner designs would require 20-50% more
fuel per ton of pellets and could cause pellet quality problems,'' U.S.
Steel documented that it had neither a fuel penalty nor pellet quality
problems.
EPA's action cannot be characterized as disapproving submittals
that satisfy CAA requirements ``merely because EPA prefers a different
BART outcome.'' In commenting that EPA must approve state submittals
that meet minimum CAA requirements, NMA apparently recognizes that EPA
must disapprove state submittals that fail to meet CAA requirements. By
dismissing clearly applicable NOX and SO2
emission control options as infeasible, and by finding a group of
NOX emission reduction practices (GCP) to be BART without
defining or conducting the necessary five factor analysis of any
particular good combustion practice, along with other SIP deficiencies,
Michigan and Minnesota's submittals fail to satisfy CAA requirements
regarding BART.
Finally, in regards to NMA's comment regarding a cut-off date for
considering new information regarding available technologies, EPA
provided a thorough response to a similar comment from Cliffs above.
Comment: EPA may not use a ``sue-and-settle'' approach to
circumvent CAA requirements and usurp the role of the states. EPA's
decision to seek comment on proposed deficiencies in the States'
regional haze SIPs only after finalizing a FIP is contrary to the
cooperative federalism scheme of the CAA. EPA's well established role
is to review SIPs, determine whether they meet CAA criteria, and only
if the state process fails to produce a compliant SIP can EPA issue its
own FIP. By definition, a FIP may be used only to ``fill all or a
portion of a gap or otherwise correct all or a portion of an inadequacy
in a State implementation plan.'' In this instance, EPA has put the
[[Page 59836]]
cart before the horse by finalizing a FIP and then seeking public
comment on the supposed deficiencies that formed the basis for the FIP
in the first place. EPA took this strange course of action to meet a
deadline that the agency agreed to in a consent decree to settle
litigation brought by the National Parks Conservation Association. EPA
may not, however, use a self-imposed consent decree deadline to justify
doing things out of order and in violation of the clear rulemaking
process set forth in the CAA.
Prior to issuing its FIP, the only deficiency EPA had identified
was a failure by Minnesota and Michigan (along with over 30 other
states) to submit a timely regional haze SIP. Minnesota and Michigan
rectified this deficiency by submitting their SIPs. These submittals
triggered EPA's obligations under CAA section 110(k) to review the SIPs
within one year and work with the states to make any changes necessary
for federal approval. Instead of meeting its statutory obligation to
act on the state submissions within one year, EPA entered into a
consent decree with environmental organizations that set a court-
ordered deadline for action on regional haze. In January 2012, EPA was
on course to meet that deadline in Minnesota by proposing approval of
the Minnesota regional haze SIP. However, when EPA decided to change
course and propose a FIP, EPA had left itself with no time to properly
identify deficiencies in the SIPs. EPA used the consent decree deadline
as an excuse to stop working with the states to finalize the SIPs, to
arbitrarily ignore contrary information, and to deny requests for
additional time for public comments. EPA's rushed FIP that revealed a
poor understanding of the taconite industry and significant shortcuts
in the BART determination process. EPA did not propose disapproval of
the state SIPs before rushing into a FIP, let alone provide ample
opportunity for public comment or for the states to rectify any
perceived deficiencies.
Had EPA followed proper procedure and discussed this new
information with the states, EPA would have understood that the new low
NOX burner trial information would not have changed the
state BART determinations for taconite furnaces. The taconite industry
is highly specialized, with each indurating furnace designed to process
a specific ore type and produce pellets meeting varying specifications.
An in-depth understanding of each taconite furnace is necessary to
properly evaluate the applicability of ``new'' technology to these
sources. Instead of taking the time necessary to understand these
issues, EPA cited its looming consent decree and rushed through a
``one-size-fits-all'' FIP that requires all taconite furnaces to expend
significant resources designing and installing technologies that are
unproven and could severely impact their ability to manufacture a high
quality product for global markets. This result would produce severe
economic consequences for the taconite industry in Minnesota and
Michigan. EPA may not use a self-imposed consent decree to cut the
states out of a process Congress intended them to control and inflict
this type of burden on the taconite industry.
Response: This comment is generally not relevant to the proposed
disapproval and is primarily focused on EPA's decision to promulgate a
FIP, as well as the substance of the FIP. For example, the comments
objecting to EPA promulgating a FIP before acting on the states' SIPs
and the comments regarding EPA's alleged ``sue-and-settle'' approach
appear to be objecting to the timing of EPA's FIP promulgation rather
than addressing appropriate action on the states' SIPs. NMA believes
that EPA did not properly consider the ``highly specialized'' nature of
taconite facilities, but NMA does not identify any particular features
of any particular facilities that would make more or less control
feasible. More pertinently, the comment suggests that the one-size-
fits-all nature of the state SIPs (in all cases determining undefined
``good combustion practices'' to be BART) are an important deficiency.
E. Letter From Congressman Richard M. Nolan
Congressman Nolan submitted a March 4, 2013, letter to EPA asking
EPA to approve the Minnesota SIP or amend the FIP to allow the taconite
facilities sufficient time to comply with NOX BART emission
limits. The comments submitted by the Congressman focus primarily on
compliance deadlines and as such are FIP rather than SIP issues.
Today's action disapproves the Minnesota SIP, however, EPA notes that
the compliance deadlines in EPA's FIP have already been stayed by the
Eighth Circuit and EPA is currently reviewing several petitions for
reconsideration that request additional extensions of the compliance
deadlines for NOX BART.
F. Comments by the Minnesota Pollution Control Agency
Comment: The proposed SIP disapproval presents unnecessary
challenges to the historically strong state/Federal relationship in
Minnesota. EPA's actions rendered moot a significant investment of time
and resources by the MPCA.
Response: EPA also values its strong relationship with MPCA, but
this concern cannot justify approving a SIP that does not meet CAA
requirements. EPA appreciates MPCA's efforts and the time it invested
on the Minnesota regional haze SIP, which EPA approved in full except
with regard to the BART determinations for taconite facilities. EPA
encourages MPCA to consider submitting a SIP revision for taconite BART
that EPA could evaluate for approval and potential replacement of EPA's
FIP.
Comment: EPA's BART Guidelines do not require states to re-open
final BART decisions to consider a technology that becomes available
after the close of the public comment period on the state's SIP. MPCA
was clear that its May 2012 regional haze SIP supplement was not re-
opening its 2009 BART determinations for taconite facilities. MPCA had
valid reasons to exercise this discretion because MPCA knew that the
pilot project for low NOX burners at Minntac was limited to
a single type of taconite furnace and that the pilot project clearly
illustrated that low NOX burners required significant
testing and operational changes at the two furnaces tested.
Response: As discussed above in response to a similar comment by
Cliffs, MPCA is misreading EPA's BART Guidelines. Low NOX
burners are in wide use across a wide range of industries, many
involving combustion conditions comparable to those in the taconite
industry, and this technology has been commercially available since
long before MPCA even began considering BART for taconite plants.
Therefore, statements in the BART Guidelines regarding the
consideration of technologies that become available after the close of
a state's comment period are not germane here.
MPCA's comment suggests that MPCA interprets ``available'' to mean
not just commercially available, but also ``applicable'' at a
particular facility. This interpretation is inconsistent with the BART
Guidelines, which clearly differentiate between the concepts of
``availability'' and ``applicability.'' For a technology like low
NOX burners that has long been commercially available, the
BART Guidelines do not provide states with the authority to disregard
information that indicates that an ``available'' technology has also
become ``applicable,'' and therefore technically feasible, for use at a
particular source type.
Furthermore, MPCA offered multiple comment periods throughout its
[[Page 59837]]
regional haze SIP development process. MPCA wishes to treat its last
comment period as merely addressing the emission limits for a BART
technology it had selected previously, without offering the opportunity
to reconsider whether the selection of that technology was appropriate.
Thus, even assuming MPCA's interpretation of ``available'' were
correct, MPCA provides no rationale for interpreting the BART
Guidelines in such a way so as to foreclose the consideration of
technologies that become available after the close of one comment
period, but before the close of another, later comment period.
Therefore, the BART Guidelines provide no justification for MPCA to
disregard the information that has come to light over the last several
years that low NOX burners are ``applicable'' and
technically feasible for the taconite facilities in the state.
Installation of a new control technology at a facility commonly
requires ``significant testing and operational changes.'' Indeed, EPA's
FIP provided time for exactly this effort. Taken to its logical
extreme, MPCA's comment suggests that states could not require new
controls at facilities unless the controls have already been installed
there. On the contrary, the need for testing and operational changes
alone cannot justify a finding that controls are technically
infeasible.
Comment: EPA should stay implementation of its FIP to resolve
procedural issues with the SIP actions. EPA's supplemental proposed
disapproval provides no legal authority, either from the CAA or from
case law, which allows EPA to adopt a final FIP before EPA formally
disapproves a state's SIP. EPA's claim that it has a mandate to
promulgate such a FIP without regard to whether EPA has disapproved the
State's SIP is unsupported and contrary to case law.
Response: EPA disagrees. EPA's final rule promulgating the FIP
clearly explained the Agency's legal authority for taking action.
Section 110(c) of the CAA requires EPA to promulgate a FIP after
finding that a state has failed to make a required submission unless
two events occur before EPA promulgates a FIP: (1) The state corrects
the deficiency, and (2) EPA approves the state's SIP. We note, however,
that this comment is moot because the Eighth Circuit has since stayed
the effective date of EPA's FIP.
Comment: EPA's June 12, 2012, final action simply stated that EPA
was deferring action with regard to BART for taconite facilities
because Minnesota did not select EPA's chosen control technology. By
publishing the supplemental proposed disapproval on the same day as the
final FIP, EPA is not providing Minnesota with a meaningful opportunity
to comment on EPA's proposed action because EPA has already decided on
its course of action. Under the CAA, EPA's supplemental proposed
disapproval should afford Minnesota the opportunity to remedy the
specific issues EPA cites as not adequately meeting the requirements of
the CAA.
Response: First, MPCA mischaracterizes EPA's June 12, 2012 final
action, in which EPA actually stated that it was deferring action to
evaluate information indicating that BART should be defined as a more
effective control technology. 77 FR 34801 at 34806. Second, as EPA
explained in an earlier response to a similar comment from Cliffs, a
FIP is a gap-filling measure only. See CAA section 302(y). As a result,
a FIP promulgated by EPA remains in place only until a state submits a
SIP correcting the inadequacy and that SIP is approved by EPA. In this
instance, MPCA and other commenters had a meaningful opportunity to
comment on EPA's supplemental proposed disapproval and explain why
EPA's proposed action was incorrect. Had EPA agreed with MPCA or other
commenters and approved the Minnesota and Michigan BART determinations
for taconite facilities instead, EPA's FIP would have been replaced.
Therefore, MPCA's assertions are incorrect. Furthermore, we again
encourage MPCA to consider submitting a SIP revision for taconite BART
that EPA could evaluate for approval and potential replacement of EPA's
FIP.
Comment: EPA's August 15, 2012, proposed action did not propose to
disapprove Minnesota's regional haze SIP for taconite facilities. The
only mention of the disapproval of Minnesota's SIP is in the preamble
where EPA makes an unsubstantiated claim that the disapproval is for a
failure to make a required submission. MPCA objects to the absence of
substantive analysis or detail about what required submission Minnesota
did not make. According to Train v. Natural Resources Defense Council,
421 U.S. 60 (1975), EPA can only disapprove a SIP if it does not
adequately meet the requirements of CAA section 110(a)(2).
Also, no mention of the disapproval of the SIP is made in the
``Proposed Agency Action'' section of the Federal Register notice,
meaning that EPA failed to take official agency action on Minnesota's
regional haze SIP. Finally, EPA's assertion that the August 15, 2012,
proposed rule served as an ``implicit disapproval'' of Minnesota's
regional haze SIP represents an acknowledgement that EPA failed to take
formal agency action. The CAA has no provision for ``implicit
disapprovals.''
Response: EPA's August 15, 2012, proposed action noted that the
BART requirement ``has not been satisfied by Minnesota or Michigan for
its subject taconite plants,'' and the proposed codification for
Minnesota stated that ``[t]he requirements of section 169A of the Clean
Air Act are not met because the regional haze plan submitted by the
state on December 30, 2009, and on May 8, 2012, does not meet the
requirements of 40 CFR 51.308(e) with respect to NOX and
SO2 emissions from [the listed taconite facilities].'' This
proposed codification represents ``official agency [proposed] action.''
On the other hand, EPA agreed with comments expressing concern that
the August 12, 2012 notice did not provide adequate explanation of
EPA's rationale for proposing to disapprove in part the two States'
regional haze SIPs. In response to those comments, EPA published a
supplemental notice on February 6, 2013, at 78 FR 8478, elaborating on
EPA's rationale for proposing to disapprove in part these SIPs.
EPA did not claim, in its August 12, 2012 proposed action or
elsewhere, that the disapproval was for failure to submit a timely
regional haze SIP. EPA stated that its FIP obligation was based on a
finding that the states had failed to make the submittal (an obligation
that remains in the absence of EPA approval of a subsequently submitted
SIP). Similarly, EPA did not make the assertion regarding ``implicit
disapproval'' claimed by Minnesota. Instead, EPA stated that its August
12, 2012 proposed action ``provided a full discussion of why EPA
proposed to conclude that the BART criteria resulted in more stringent
control than was required by the States, thus implicitly concluding
that the state submittals did not require controls representing BART.''
Furthermore, the action proposed regulatory text stating that the state
submittals failed to require BART for the taconite plants.
In regard to MPCA's comment regarding the DC Circuit's decision in
Train v. NRDC, that case did not deal with a regional haze SIP, which,
in addition to satisfying the requirements of CAA section 110(a)(2),
must also satisfy the requirements of CAA section 169A and the Regional
Haze Rule.
Comment: MPCA comments that EPA's claims of authority to promulgate
a FIP based on a finding of failure to
[[Page 59838]]
submit a SIP fail to recognize that Minnesota ``submitted a SIP within
the timeline [prescribed] by the 2009 Notice of Deficiency.'' MPCA
objects that the administrative record omits an April 1, 2010, letter
finding Minnesota's SIP to be complete.
Response: This comment regarding FIP authority has been addressed
in EPA's FIP and is not relevant here. EPA has made the addition to the
record that MPCA requested.
Comment: MPCA comments that EPA's supplemental proposed disapproval
does not remedy EPA's official statements from the June 12, 2012, final
action in which EPA stated that it would act through a FIP because
Minnesota did not select EPA's chosen control technology for BART. MPCA
finds these findings to be contrary to case law, citing Virginia v.
EPA, 108 F.3d 1397, 1406 (D.C. Cir. 1997), without explanation.
Response: It is not clear why MPCA commented on statements in the
June 12, 2012, final action regarding prospective EPA actions, because
the actual actions as proposed on August 15, 2012, and February 6,
2013, were available for comment and were more indicative of EPA's
actions than its prior anticipatory statements. In any case, MPCA is
misrepresenting EPA's June 12, 2012, statements. Nowhere in this notice
did EPA ``simply state that Minnesota did not select EPA's chosen
control technology.'' Instead, EPA noted the ``significant information
about additional NOX controls [that it received] in comments
on [the January 25, 2012] proposed rulemaking, [prompting EPA to defer
action to allow] EPA time to evaluate properly additional potential
emission controls for the taconite facilities.''
As explained in the supplemental proposed disapproval, EPA's
subsequent evaluation led to its view that: (1) Minnesota and Michigan
did not properly evaluate BART for NOX and SO2
for taconite plants because they dismissed technically and economically
feasible control technologies without adequate justification; (2)
Minnesota and Michigan adopted a ``control technology'' (GCP) for
NOX that was not defined or properly analyzed; (3) Minnesota
did not demonstrate that its emission limits in fact represented GCP,
while Michigan did not include NOX emission limits in its
SIP at all; and (4) Minnesota failed to make its emission limits
appropriately enforceable. MPCA notably does not contest EPA's view
that low NOX burners and FGD are more effective at reducing
emissions than GCP. More precisely, MPCA does not argue that GCP is
either equivalent to or better than these technologies. That is,
Minnesota makes no argument that its chosen technology can equally well
be considered the best available. Thus, the failure of the states to
follow EPA's implementing regulations or the BART Guidelines when
selecting BART for these facilities had the practical consequence of
the SIPs requiring less than BART. Finally, Virginia v. EPA, to the
extent it is relevant here, does not instruct EPA to approve SIPs that
fail to meet CAA requirements.
Comment: EPA correctly states that Minnesota essentially re-opened
its 2009 BART determinations for the affected electric generating units
(EGUs). MPCA finds that an extensive administrative record compiled by
EPA in support of revised action supported re-opening the EGU BART
determinations. MPCA finds in contrast that it lacked an adequate
administrative record to justify a re-opening of the taconite BART
determinations.
Response: At issue here is whether MPCA should have more thoroughly
considered evidence indicating the applicability and effectiveness of
low NOX burners. This comment suggests that MPCA undertook a
partial consideration of this evidence in order to evaluate whether a
more thorough review and ``re-opening'' of its BART determinations was
necessary. However, as has been elaborated several times in the
responses above, EPA disagrees that MPCA's partial consideration of
information regarding the technical feasibility of low NOX
burners was reasonable or sufficient to satisfy the States' obligations
under the CAA and Regional Haze Rule to evaluate all technically
feasible control options when selecting BART.
Comment: MPCA closes its comments by recommending several
modifications to the FIP.
Response: These comments are pertinent to a completed rulemaking
promulgating the FIP and are not germane to this rulemaking regarding
disapproval of Minnesota's regional haze SIP.
III. What action is EPA taking?
EPA is disapproving in part the Michigan and Minnesota regional
haze SIPs for failure to satisfy BART requirements for NOX
and SO2 emissions from the subject taconite facilities
within these states. Specifically, EPA is disapproving in part the
Michigan and Minnesota regional haze SIPs for failure to comply with 40
CFR 51.308(e)(1)(ii)(A), which requires BART determinations ``to be
based on an analysis of the best system of continuous emission control
technology'' that, among other things, ``take[s] into consideration the
technology available.'' EPA is also disapproving in part the Michigan
regional haze SIP for failure to comply with 40 CFR 51.301 and
51.308(e), which require BART determinations to be in the form of
enforceable ``emission limitations'' contained in SIPs.
For NOX emissions, Minnesota's SIP failed to ``take into
consideration the technology available'' because it summarily dismissed
a technically feasible control technology, low NOX burners,
without adequate explanation. Furthermore, by selecting an unidentified
set of practices as BART instead of low NOX burners,
Minnesota's SIP failed to require the emission reductions associated
with ``the best system of continuous emission control technology
available.'' For SO2 emissions, Minnesota's SIP also failed
to make BART determinations for certain facilities ``based on an
analysis of the best system of continuous emission control technology''
because Minnesota did not reasonably consider the ``costs of
compliance'' when it improperly rejected the most stringent control
option, FGD.
Similarly, Michigan's SIP also failed to ``take into consideration
the technology available'' because it too summarily dismissed low
NOX burners as a technically infeasible control option.
Also, by selecting an unidentified set of practices as BART instead of
low NOX burners, Michigan's SIP failed to require the
emission reductions associated with ``the best system of continuous
emission control technology available.'' Moreover, unlike Minnesota's
SIP, Michigan's SIP did not include ``emission limitations representing
BART'' for its Tilden facility. While Michigan commented that it has
since issued a permit establishing NOX emission limits for
the Tilden facility, neither these limits nor any other emission limits
were included in the SIP as required. Finally, for SO2
emissions, Michigan's SIP also failed to make BART determinations for
certain facilities ``based on an analysis of the best system of
continuous emission control technology'' because Michigan did not
reasonably consider the ``costs of compliance'' when it improperly
rejected the most stringent control option, FGD.
A discussion of how this action relates to the taconite FIP that
was published on February 6, 2013 is discussed in the February 6, 2013
supplemental proposed disapproval.
[[Page 59839]]
IV. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget.
Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Regulatory Flexibility Act
This action merely disapproves state law as not meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).
Unfunded Mandates Reform Act
Because this rule disapproves pre-existing requirements under state
law and does not impose any additional enforceable duty beyond that
required by state law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Order 13132: Federalism
This action also does not have Federalism implications because it
does 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 (64 FR 43255, August
10, 1999). This action merely disapproves a state rule, and does not
alter the relationship or the distribution of power and
responsibilities established in the CAA.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (59
FR 22951, November 9, 2000).
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it disapproves a state rule.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' this action
is also not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001).
National Technology Transfer Advancement Act
In reviewing state submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the state
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a state submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a state
submission, to use VCS in place of a state submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 29, 2013. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See CAA section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements, and Sulfur oxides.
Dated: September 11, 2013.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 52.1183 is amended by adding paragraph (o) to read as
follows:
Sec. 52.1183 Visibility protection.
* * * * *
(o) The requirements of section 169A of the Clean Air Act are not
met because the regional haze plan submitted by the state on November
5, 2010, does not meet the requirements of 40 CFR 51.308(e) with
respect to NOX and SO2 emissions from Tilden
Mining Company L.C. of Ishpeming, Michigan. The requirements for this
facility are satisfied by complying with Sec. 52.1183(k-n)
0
3. Section 52.1236 is amended by adding paragraph (d) to read as
follows:
Sec. 52.1236 Visibility protection.
* * * * *
(d) The requirements of section 169A of the Clean Air Act are not
met because the regional haze plan submitted by the state on December
30, 2009, and on May 8, 2012, does not meet the requirements of 40 CFR
51.308(e) with respect to NOX and SO2 emissions
from United States Steel Corporation, Keetac of Keewatin, Minnesota;
Hibbing taconite company of Hibbing, Minnesota; United States Steel
Corporation, Minntac of Mountain Iron, Minnesota; United Taconite, LLC
of Forbes, Minnesota; ArcelorMittal Minorca Mine, Inc. near Virginia,
Minnesota; and Northshore Mining Company-Silver Bay of Silver Bay,
Minnesota. The requirements for these facilities are satisfied by
complying with the requirements of Sec. 52.1235.
[FR Doc. 2013-23394 Filed 9-27-13; 8:45 am]
BILLING CODE 6560-50-P