80_FR_8582 80 FR 8550 - Approval and Promulgation of Implementation Plans; North Dakota; Regional Haze State Implementation Plan; Federal Implementation Plan for Interstate Transport of Pollution Affecting Visibility and Regional Haze; Reconsideration

80 FR 8550 - Approval and Promulgation of Implementation Plans; North Dakota; Regional Haze State Implementation Plan; Federal Implementation Plan for Interstate Transport of Pollution Affecting Visibility and Regional Haze; Reconsideration

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 80, Issue 32 (February 18, 2015)

Page Range8550-8559
FR Document2015-03177

On April 6, 2012, Environmental Protection Agency (EPA) published a final rule partially approving and partially disapproving a North Dakota State Implementation Plan (SIP) submittal addressing regional haze submitted by the Governor of North Dakota on March 3, 2010, along with North Dakota's SIP Supplement No. 1 submitted on July 27, 2010, and SIP Amendment No. 1 submitted on July 28, 2011. The Administrator subsequently received a petition requesting EPA to reconsider its approval of certain elements of North Dakota's regional haze SIP. Specifically, the petition raised several objections to EPA's approval of the State's best available retrofit technology (BART) emission limits for nitrogen oxides (NO<INF>X</INF>) for Milton R. Young Station (MRYS) Units 1 and 2 and Leland Olds Station (LOS) Unit 2. On March 15, 2013, EPA announced its decision to reconsider its approval of the State's NO<INF>X</INF> BART limits for these facilities. In the same action, EPA proposed to affirm its prior approval of these elements of North Dakota's SIP. As a result of this reconsideration process, EPA has concluded that no changes are warranted to its 2012 approval of the NO<INF>X</INF> BART limits for these units.

Federal Register, Volume 80 Issue 32 (Wednesday, February 18, 2015)
[Federal Register Volume 80, Number 32 (Wednesday, February 18, 2015)]
[Rules and Regulations]
[Pages 8550-8559]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-03177]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0406; FRL-9922-80-OAR]


Approval and Promulgation of Implementation Plans; North Dakota; 
Regional Haze State Implementation Plan; Federal Implementation Plan 
for Interstate Transport of Pollution Affecting Visibility and Regional 
Haze; Reconsideration

AGENCY: Environmental Protection Agency.

ACTION: Notice of final action on reconsideration.

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SUMMARY: On April 6, 2012, Environmental Protection Agency (EPA) 
published a final rule partially approving and partially disapproving a 
North Dakota State Implementation Plan (SIP) submittal addressing 
regional haze submitted by the Governor of North Dakota on March 3, 
2010, along with North Dakota's SIP Supplement No. 1 submitted on July 
27, 2010, and SIP Amendment No. 1 submitted on July 28, 2011. The 
Administrator subsequently received a petition requesting EPA to 
reconsider its approval of certain elements of North Dakota's regional 
haze SIP. Specifically, the petition raised several objections to EPA's 
approval of the State's best available retrofit technology (BART) 
emission limits for nitrogen oxides (NOX) for Milton R. 
Young Station (MRYS) Units 1 and 2 and Leland Olds Station (LOS) Unit 
2. On March 15, 2013, EPA announced its decision to reconsider its 
approval of the State's NOX BART limits for these 
facilities. In the same action, EPA proposed to affirm its prior 
approval of these elements of North Dakota's SIP. As a result of this 
reconsideration process, EPA has concluded that no changes are 
warranted to its 2012 approval of the NOX BART limits for 
these units.

DATES: This final action is effective March 20, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2010-0406. All documents in the docket are listed in 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., 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 http://www.regulations.gov or in hard copy at 
the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 
Wynkoop St., Denver, Colorado 80202-1129. EPA requests that if at all 
possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8:00 a.m. 
to 4:00 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Gail Fallon, Air Program, U.S. 
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop 
Street, Denver, Colorado, 80202-1129, (303) 312-6281, 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Today's Action
    A. Issue for Which Reconsideration Was Granted
    B. Basis for Today's Final Action
III. Issues Raised by Commenters and EPA's Responses
    A. Comments on Technical Feasibility of SCR
    B. Comments on Emission Limits for SNCR
    C. Comments on Application of MRYS BACT Court Ruling to Other 
Units
    1. Application of MRYS BACT to LOS Unit 2
    2. Application of MRYS BACT to Coyote
    D. Comments on Visibility Benefits
    E. Comments on Legal Issues
    1. BACT versus BART Determinations
    2. Consideration of the Presumptive NOX BART 
Emissions Limit
    3. Collateral Estoppel
    4. EPA versus State Authority
    5. Scope of Reconsideration Action
    F. Comments Generally in Favor of Our Proposal
    G. Comments Generally Against Our Proposal
IV. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
     The word Act or initials CAA mean or refer to the Clean 
Air Act, unless the context indicates otherwise.
     The initials ASOFA mean or refer to advanced separated 
overfire air.
     The initials BACT mean or refer to best available control 
technology.
     The initials BART mean or refer to best available retrofit 
technology.
     The initials EPA or the words we, us or our mean or refer 
to the United States Environmental Protection Agency.
     The initials FIP mean or refer to Federal Implementation 
Plan.
     The initials LOS mean or refer to Leland Olds Station.
     The initials MRYS mean or refer to Milton R. Young 
Station.
     The initials NDDH mean or refer to the North Dakota 
Department of Health.
     The words North Dakota and State mean the State of North 
Dakota unless the context indicates otherwise.
     The initials NOX mean or refer to nitrogen oxides.
     The initials NPS mean or refer to the National Park 
Service.
     The initials NSR mean or refer to new source review.
     The initials PRB mean or refer to the Powder River Basin.
     The initials PSD mean or refer to prevention of 
signification deterioration.
     The initials SCR mean or refer to selective catalytic 
reduction.

[[Page 8551]]

     The initials SIP mean or refer to State Implementation 
Plan.
     The initials SNCR mean or refer to selective non-catalytic 
reduction.
     The initials TIFI mean or refer to targeted in-furnace 
injection.

I. Background

    On April 6, 2012, EPA published a final rule partially approving 
and partially disapproving a North Dakota SIP submittal addressing 
regional haze submitted by the Governor of North Dakota on March 3, 
2010, along with North Dakota's SIP Supplement No. 1 submitted on July 
27, 2010, and SIP Amendment No. 1 submitted on July 28, 2011.\1\ 77 FR 
20894. We gave the history of the North Dakota regional haze rulemaking 
process that preceded today's final action in the April 6, 2012 rule. 
77 FR at 20895-20897. Following our April 6, 2012 final rule, the 
Administrator received petitions for reconsideration from North Dakota, 
Great River Energy (the owner of Coal Creek Station), and Earthjustice 
on behalf of environmental groups. Parallel lawsuits were also filed by 
these parties.
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    \1\ Although in the April 6, 2012 final rule we characterized 
our action as being an approval of part of SIP Amendment No. 1, on 
further review EPA's position is that we acted on the entirety of 
SIP Amendment No. 1 in our April 2012 final rule. This submittal 
included regional haze plan revisions for Coyote Station, additions 
to SIP Appendix C.4 for MRYS, and documentation pertaining to the 
State's public participation process and consultation with the 
Federal Land Managers. The materials that North Dakota submitted for 
incorporation into Appendix C.4 constitute supporting documentation 
relevant to its NOX BACT determination for MRYS and 
related litigation. Therefore, EPA took the only appropriate action 
on Appendix C.4: to incorporate the provided information as 
supporting documentation relevant to the State's NOX BART 
determinations for MRYS and LOS.
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    On March 15, 2013, EPA published a notice of proposed rulemaking 
initiating the reconsideration of our approval of the State's 
NOX BART determination and limits for MRYS Units 1 and 2 and 
LOS Unit 2. In that notice, we proposed to affirm our prior approval of 
the determination and limits. We did not grant reconsideration of, or 
request comment on, any other provisions of the final rule.
    Our action was prompted by a June 4, 2012 petition for 
reconsideration submitted by Earthjustice on behalf of the National 
Parks Conservation Association and the Sierra Club. The petition 
requested that EPA reconsider its approval of the State's 
NOX BART determinations for MRYS Units 1 and 2 and LOS Unit 
2. The petition asserted that the environmental groups were unable to 
raise their objections to EPA's reliance on a December 21, 2011 U.S. 
District Court decision \2\ during the comment period because of the 
timing of that decision, and that their objections are of central 
relevance to EPA's final rule because EPA relied on the district court 
decision in explaining the basis for its final rule.
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    \2\ United States v. Minnkota Power Cooperative, Inc., 831 F. 
Supp. 2d 1109 (D.N.D. 2012).
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    Issues raised in the other two petitions for reconsideration from 
North Dakota and Great River Energy were addressed in a decision on the 
parallel lawsuits issued by the United States Court of Appeals for the 
Eighth Circuit on September 23, 2013.\3\ The court set aside the issues 
raised in the Earthjustice lawsuit, pending EPA's action on the June 
2012 petition for reconsideration.
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    \3\ North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013), cert. 
denied, 134 S. Ct. 2662 (2014). The court's ruling mostly upheld 
EPA's final decisions, including our disapproval for Coal Creek 
Station, but vacated our Coal Creek Federal Implementation Plan 
(FIP) on the grounds that we failed to consider existing controls. 
EPA remains obligated to promulgate a FIP or approve a SIP revision 
for Coal Creek.
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    We requested comments on our March 15, 2013 proposed 
reconsideration and provided a two-month comment period, which closed 
on May 14, 2013. At the request of the North Dakota Department of 
Health (NDDH), we provided a public hearing on May 15, 2013. To allow 
for a full 30-day public comment period for the submission of 
additional comments following the public hearing, we extended the 
comment period to June 17, 2013.
    We received a significant number of comments on our proposed 
reconsideration action. Many comments, primarily from state and city 
agencies, rural power cooperatives, and industrial facilities and 
groups, supported our proposed affirmation of our approval of the 
State's determinations for the units in question. Many comments from 
citizens and environmental groups were critical of our proposed action.
    In this action, we are responding to the timely comments we have 
received, taking final action on our reconsideration, and explaining 
the bases for our action. We did not consider and are not responding to 
any comments received after the close of the extended comment period on 
June 17, 2013. Our March 15, 2013 proposed rule provides additional 
background information on the December 21, 2011 district court decision 
and on our rationale for this reconsideration.

II. Today's Action

A. Issue for Which Reconsideration Was Granted

    EPA granted the petition to reconsider our approval of the State's 
NOX BART emission limits for MRYS Units 1 and 2 and LOS Unit 
2. After reconsideration of these matters, we are finalizing our 
approval of the emission limits. We did not reconsider or request 
comment on any other provisions of our final rule issued on April 6, 
2012, in which we partially approved and partially disapproved the 
North Dakota regional haze SIP.

B. Basis for Today's Final Action

    We have fully considered all significant comments on our proposal 
and have concluded that no changes from our proposal are warranted. Our 
action is based on an evaluation of North Dakota's SIP submittals 
against the regional haze requirements at 40 CFR 51.300-51.309 and 
Clean Air Act (CAA) sections 169A and 169B. All general SIP 
requirements contained in CAA section 110, other provisions of the CAA, 
and our regulations applicable to this action were also evaluated. The 
purpose of this action is to ensure compliance with these requirements. 
Our authority for action on North Dakota's SIP submittals is based on 
CAA section 110(k).
    As discussed in our rationale for our proposed decision to affirm 
our prior approval, two critical principles from our BART Guidelines 
are relevant to this situation. See 78 FR at 16454-16455. The first is 
that as part of a BART analysis, states may eliminate technically 
infeasible control options from further review. The second is that 
states generally may rely on a recent best available control technology 
(BACT) determination for a source for purposes of determining BART for 
that source.\4\ Considered in light of the facts of this matter, those 
principles support our decision to affirm our prior approval.
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    \4\ Among other things, EPA's BART Guidelines, codified at 40 
CFR part 51, appendix Y, describe a set of steps for determining 
BART. CAA section 169A(b)(2) requires that BART be determined 
pursuant to the BART Guidelines for power plants with a total 
generating capacity over 750 megawatts. With respect to other BART 
sources, the BART Guidelines reflect EPA's interpretations regarding 
certain key principles related to BART, including the two principles 
described in the text. For reference, the generating capacities for 
MRYS and LOS are 794 megawatts and 656 megawatts, respectively.
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    Our BART Guidelines indicate that states may generally consider 
recent BACT determinations to be BART without further analysis. Here, 
as

[[Page 8552]]

discussed below in more detail, the State's BART determinations were 
developed at approximately the same time as its BACT determination for 
one of the facilities, a decision which was upheld by a U.S. district 
court. Based on these facts, we consider it appropriate to approve the 
State's selection of selective non-catalytic reduction (SNCR) plus 
advanced separated overfire air (ASOFA) controls as BART at MRYS Units 
1 and 2 and LOS Unit 2.\5\ As we noted in our proposal, evaluations of 
technical feasibility often change over time. In the future, North 
Dakota may reach a different conclusion about the technical feasibility 
of selective catalytic reduction (SCR) controls at these plants as part 
of, for example, a reasonable progress analysis. The regional haze 
program requires additional reasonable progress reviews every ten years 
to ensure that states make progress toward the visibility goal of the 
CAA.\6\ Therefore, we expect that North Dakota will reassess the 
technical feasibility of SCR controls at these plants as part of a 
future reasonable progress analysis.
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    \5\ The associated BART limits are 0.36 lb/MMBtu for MRYS Unit 
1, 0.35 lb/MMBtu for MRYS Unit 2, and 0.35 lb/MMBtu for LOS Unit 2, 
on a 30-day rolling average basis. The SIP contains separate limits 
for MRYS Units 1 and 2 during startup of 2070.1 and 3995.6 pounds 
per hour, respectively, on a 24-hour rolling average basis. See SIP 
section 7.4.2, p. 74.
    \6\ See 40 CFR 51.308(f) requirements for comprehensive periodic 
revisions of implementation plans for regional haze.
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III. Issues Raised by Commenters and EPA's Responses

A. Comments on Technical Feasibility of SCR

    We received numerous comments on our proposal regarding the 
technical feasibility of SCR for cyclone boilers burning North Dakota 
lignite. Many of the comments supported the conclusion that SCR is 
technically feasible for these types of boilers. Regardless of EPA's 
position regarding the technical feasibility of SCR for the units in 
question, the Minnkota Power court's ruling in our challenge to the 
State's BACT determination suggests that this is an issue on which 
reasonable minds may differ. Based on the terms of an April 24, 2006 
consent decree settling an enforcement case for MRYS, if EPA disagreed 
with the State's BACT determination, EPA had the burden of 
demonstrating to the court that North Dakota's BACT determination was 
unreasonable. EPA did disagree with North Dakota's BACT determination 
and challenged that determination in federal district court. In its 
December 21, 2011 decision, however, the court concluded that EPA had 
not shown that North Dakota's determination was unreasonable. Because 
the criteria for determining the technical feasibility of a control 
technology are essentially identical for both BART and BACT, as 
discussed in our prior final rule at 77 FR 20897, we consider it 
appropriate to take the federal district court's ruling on that BACT 
determination into account in our assessment of North Dakota's regional 
haze SIP.
    In our review of a BART determination in a regional haze SIP, EPA's 
task is to determine whether the State acted reasonably and in 
accordance with the requirements of the CAA and our regulations. We 
have accordingly reviewed North Dakota's SIP based on the record before 
the State at the time of its decision to determine whether it acted 
reasonably in concluding that SCR is technically infeasible for MRYS 
and LOS. As noted above, the December 21, 2011 Minnkota Power ruling 
suggests that North Dakota was not clearly unreasonable in deciding 
that SCR could not be used on these units. This decision, along with 
the discussion in the BART Guidelines indicating that technically 
infeasible options may be eliminated and that states may generally rely 
on recent BACT determinations in making their BART decisions, forms the 
basis for our approval of North Dakota's BART determinations for these 
two facilities. Were EPA making the BART determination in the absence 
of the factors present here, we would not eliminate SCR from 
consideration based on technical infeasibility. Given the basis for our 
decision, however, we do not consider comments regarding the technical 
feasibility of SCR to be relevant to our decision regarding the 
reasonableness of North Dakota's BART determination. Therefore, we 
generally are not summarizing or responding to these comments. However, 
we are responding to comments that may be relevant to other aspects of 
this action.
    Comment: Environmental groups commented that EPA should consider 
SCR's technical feasibility in light of more recent developments such 
as the Electric Power Research Institute's (EPRI) research and 
operating experience gained with Texas lignite. The EPRI research 
described by the commenters relates to work simulating catalyst fouling 
using chemical kinetic modeling. Preliminary results from this research 
were presented at conferences in 2012 and 2013. The commenters also 
noted that SCR has been successfully used at Oak Grove Units 1 and 2 
and Sandow Unit 4, which burn Texas lignite. While there was very 
little experience with SCR at the Texas plants at the time of North 
Dakota's BACT determination for MRYS, the commenters note that the 
technology has now been in operation for about three years at the Texas 
plants, exceeding the catalyst's guaranteed lifetime. The Texas plants' 
catalyst was supplied by Johnson Matthey Catalysts, the same company 
that (after the State's BART determination) offered to guarantee SCR on 
North Dakota lignite with standard industry performance and lifetime 
catalyst guarantees.\7\ Commenters point to EPA's BART Guidelines to 
assert that ``technical feasibility changes over time as technologies 
evolve,'' and that EPA therefore cannot rely on the Minnkota Power 
decision given more recent technological developments.
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    \7\ February 27, 2012 letter from Ken Jeffers, Johnson Matthey 
to Callie Videtich, EPA Region 8. See docket EPA-R08-OAR-2010-0406-
0322.
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    Response: We do not agree that EPA should take these recent 
developments into account at this late date. In this matter the BACT 
and BART determinations by the state occurred relatively close to each 
other in time: North Dakota's regional haze public comment period 
closed in January 2010, while the BACT determination was finalized in 
November 2010, and North Dakota's public comment period on its SIP 
Amendment No. 1 ended on March 12, 2011. Therefore, the State could 
reasonably assert that at the time of its BART determination, no 
material new technologies would have arisen since its BACT 
determination. Similarly, our review of the BART determination was made 
at close to the same time that the district court reached its decision, 
on much the same record. And while (as noted elsewhere in this notice) 
we do not view the Minnkota Power decision as binding or determinative, 
we do view it as relevant to our consideration of this matter.
    It is true that the EPA generally has discretion, in its CAA 
rulemaking decisions, to take advantage of the greater knowledge that 
may result from receiving additional information. See Michigan v. 
Thomas, 805 F.2d 176, 185 (6th Cir. 1986) (``At no time should an 
agency be estopped from using its increased expertise.''). But EPA also 
has the legal responsibility to complete CAA actions without 
unreasonable delay. See CAA section 304(a). Here, the developments 
cited by the commenters occurred after the state's BACT and regional 
haze decision processes, and for the most part after the Minnkota 
decision as well. As a general matter, the Agency does not consider it

[[Page 8553]]

appropriate to perpetually restart the BART rulemaking process to 
consider late-breaking technological developments, or else we would 
seldom be able to finalize an action.
    Accordingly, under the facts present here, and in light of the 
district court's Minnkota decision, in our judgment there is no need to 
alter our decision in light of these recent developments.
    Comment: Commenters stated that EPA should consider a performance 
guarantee for SCR catalysts on units burning North Dakota lignite 
provided by Johnson Matthey Catalysts, LLC. Commenters argued that 
since the district court relied heavily on the absence of vendor 
guarantees in upholding the State's determination of technical 
infeasibility, EPA cannot rely on the court's reasoning since a 
guarantee is now available.
    Response: Regardless of EPA's position on the technical feasibility 
of SCR for MRYS Units 1 and 2 and LOS Unit 2, we acknowledge that 
throughout the development of the BACT and BART determinations for 
these units, other parties contested the feasibility of SCR on these 
high-temperature cyclone boiler units burning high-sodium North Dakota 
lignite. The State gave great weight to the fact that it did not 
receive any catalyst vendor guarantees. As noted by commenters on our 
reconsideration action, however, no catalyst vendors have stated that 
SCR would be technically infeasible at these units,\8\ and one (Johnson 
Matthey Catalysts, LLC) would offer ``SCR catalyst designs with 
reasonable operating lifetime performance guarantees for service in a 
low-dust or tail-end SCR configuration'' \9\ absent additional field 
testing. Most of this information, with the exception of the Johnson 
Matthey offer, was in the BACT record and thus was before the court at 
the time of the December 21, 2011 court decision. And while the Johnson 
Mathey offer is interesting, it is hardly decisive. Considering the 
abundance of information that was already in the BACT record in 
December 2011, it is unlikely that the court would have reached a 
different conclusion based only on the addition of the Johnson Matthey 
offer, particularly in light of the fact that two other equally 
reputable vendors would not provide guarantees. As noted in our BART 
Guidelines, ``we do not consider a vendor guarantee alone to be 
sufficient justification that a control option will work.'' Id. 40 CFR 
part 51, appendix Y, section IV.D, step 2.
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    \8\ Two companies, Haldor Topsoe, Inc. and CERAM Environmental, 
Inc. would require pilot-scale testing in order to offer any 
guarantee regarding SCR catalyst life. See SIP Appendix C.4 (EPA-
R08-OAR-2010-0406-0013, pdf pp. 388 and p. 392), January 13, 2010 
letter from Wayne Jones to Robert Blakley, and January 13, 2010 
email from Noel Rosha, CERAM to Robert Blakley. Another vendor, 
Alstom Power, stated that despite many challenges a properly 
designed system fueled by North Dakota lignite could employ SCR. See 
SIP Appendix C.4 (EPA-R08-OAR-2010-0406-0011, pdf p. 159), May 30, 
2007 letter from Michael G. Phillips, Alstom, to Robert Blakley, 
Burns and McDonnell. In our view this statement was so overlaid with 
conditions and qualifications that it was not unreasonable for the 
State to choose not to rely on it.
    \9\ The Johnson Matthey offer came after the close of the 
State's comment period and thus was not available to the State when 
it made its BACT and BART decisions.
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    Accordingly, based on the unique circumstances here, and taking 
into consideration the district court's decision, we are affirming our 
approval of the State's MRYS and LOS BART decisions, which are based on 
a recent BACT decision. In finalizing our approval, we note that North 
Dakota provided an explanation for its conclusions that a federal court 
found reasonable. We will continue to foster efforts among the 
interested parties for additional testing to resolve any outstanding 
uncertainty regarding the feasibility of SCR technology for these 
units. In a December 20, 2011 letter,\10\ North Dakota expressed 
openness to continuing discussions with EPA concerning further testing 
and evaluation of SCR technology involving North Dakota lignite coal. 
Such testing in the field would analyze the technical feasibility of 
SCR for North Dakota lignite at these cyclone units in a low-dust or 
tail-end configuration. The existing installation of SNCR should not 
preclude such efforts. We acknowledge that in a subsequent letter on 
July 18, 2014, North Dakota stated that based on the Minnkota Power 
ruling it no longer believes testing is a reasonable approach. However, 
technological advances elsewhere may yet provide compelling information 
to drive further testing on North Dakota lignite or negate the need for 
such testing. As noted above, we expect that North Dakota will reassess 
the technical feasibility of SCR controls at these plants as part of a 
future reasonable progress analysis.
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    \10\ See docket EPA-R08-OAR-2010-0406-0364.
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B. Comments on Emission Limits for SNCR

    Comment: Commenters stated that MRYS and LOS can achieve more 
stringent emission limits with SNCR and ASOFA than those approved by 
EPA. The commenters assert that, in combination with SNCR and ASOFA, 
technologies currently in use at MRYS and LOS, namely CyClean and 
Targeted In-Furnace Injection (TIFI) technology, respectively, allow 
these units to achieve emission limits much lower than the BART 
emission limit previously approved by EPA. The commenters also 
suggested that PerNOxide \11\ and hybrid SCR-SNCR are other feasible 
technology options that should be considered to improve on the 
performance of NOX emissions controls at MRYS and LOS. 
Commenters assert that if EPA had a valid basis for rejecting 
conventional SCR as BART, it would have to consider the emission 
reductions that SNCR can achieve in conjunction with other cost-
effective controls.
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    \11\ PerNOxide is a technology involving a two-step process. 
Hydrogen peroxide is injected between the economizer and air 
preheater to oxidize nitrogen oxide in flue gas to nitrogen dioxide 
and higher-order oxides. These oxides are then removed in downstream 
wet scrubbers, such as those installed on MRYS and LOS. See docket 
EPA-R08-OAR-2010-0406-0415, attachment 3, Technical Comments of Bill 
Powers, P.E. 2013-06-17, p. 30.
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    Response: CyClean and TIFI were not identified as technically 
feasible NOX control options in the State's SIP. Nor were 
they the subject of comments during EPA's review, and ultimate 
approval, of the BART determinations for MRYS and LOS. As detailed 
above in response to another comment, EPA is assessing the 
reasonableness of the State's determination based on the record before 
the State at the time. Accordingly, we do not find that a review of 
these technologies is appropriate for this reconsideration action. 
Moreover, we note that these technologies are intended primarily to 
provide operational benefits, such as improved efficiency and reduced 
slagging and fouling, and that NOX emissions reductions are 
only sometimes a co-benefit of these operational changes. In 
particular, there is some question whether CyClean at MRYS is 
consistently effective in reducing NOx emissions.\12\
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    \12\ Prairie Public News, Minnkota says new method of reducing 
emissions `promising,' Dave Thompson, August 12, 2013. http://news.prairiepublic.org/post/minnkota-says-new-method-reducing-emissions-promising.
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    Furthermore, as the commenters point out, PerNOxide was not 
commercially available at the time of the BACT or BART determinations. 
It would therefore not be reasonable for EPA to now disapprove the SIP 
in this reconsideration on the basis that the State did not select the 
PerNOxide technology. It may, however, be appropriate for North Dakota 
to consider this technology in the next planning period as a reasonable 
progress measure.
    Regarding hybrid SCR-SNCR, this technology too was not previously

[[Page 8554]]

identified, and so its review is not appropriate for this 
reconsideration action. Even so, there is no evidence that the 
technical feasibility of hybrid SCR-SNCR in relation to catalyst 
poisons would be any greater than that of conventional SCR. This is 
particularly true because in the hybrid system, in order to take 
advantage of the ammonia slip from the SNCR, the in-duct SCR is located 
in the high-dust position, where it is most vulnerable to catalyst 
poisoning. We also note that the installation of the SCR-SNCR 
technology is rare, and we are not aware of any cyclone boilers that 
are currently employing this technology.

C. Comments on Application of MRYS BACT Court Ruling to Other Units

1. Application of MRYS BACT to LOS Unit 2
    Comment: Commenters argued that the BACT limits for MRYS units 
should not apply to LOS Unit 2. The commenters highlighted their 
disagreement with EPA's position as stated in the final rule, ``it 
[LOS] is the same type of boiler burning North Dakota lignite coal [as 
MRYS], and North Dakota's views regarding technical infeasibility that 
the U.S. district court upheld in the MRYS BACT case apply to it as 
well.'' 78 FR 16455. The commenters contended that EPA cannot rely on 
the BACT determination for MRYS to determine BART for LOS Unit 2 given 
critical differences between the two facilities. The commenters claimed 
that these critical differences include the facts that LOS Unit 2 co-
fires Powder River Basin (PRB) coal and lignite coal with lesser 
amounts of alleged SCR catalyst poisons; has been increasing the amount 
of PRB coal that it fires over time; can be modified to fire even 
greater quantities of PRB coal, up to 100%, completely eliminating the 
lignite fuel quality claims; and, unlike MRYS, is equipped with TIFI to 
reduce slagging and NOX emissions.
    Response: EPA disagrees that there are critical differences between 
the units in question at MRYS and LOS that would have a material 
bearing on the technical feasibility of SCR. These units have much in 
common. They are of the same design (cyclone firing) and similar size 
(in particular, MRYS Unit 2 at 517 MW and LOS Unit 2 at 440 MW). MRYS 
and LOS both burn primarily North Dakota lignite coal, which produces 
ash high in catalyst poisons (principally, sodium and potassium 
oxides). While MRYS burns lignite coal from the Center Mine, and LOS 
burns lignite coal from the Freedom Mine, these mines are located 
within about 40 miles of one another and produce lignite coals of 
similar quality.
    Regarding catalyst poisons, the commenters cited average amounts of 
sodium and potassium oxides in the MRYS ash of 5.6% and 1.0%, 
respectively.\13\ Similarly, the commenters cited average amounts of 
sodium and potassium oxides in the LOS ash of 2.94% and 0.73%, 
respectively.\14\ However, the sodium and potassium oxides amounts in 
the LOS ash given in the State's SIP, 7.55% and 1.20%, 
respectively,\15\ are higher than that suggested by the commenters, and 
even higher than that for MRYS, thus undermining the commenters' 
argument that there is a critical difference in the amount of catalyst 
poisons involved.
---------------------------------------------------------------------------

    \13\ North Dakota Department of Health, Preliminary Best 
Available Control Technology Determination for Control of Nitrogen 
Oxides for M.R. Young Station Units 1 and 2, Table 1, page 18, June 
2008, SIP Amendment No. 1. See docket EPA-R08-OAR-2010-0406-0039.
    \14\ Les Allery et al., Demonstrated Performance Improvements on 
Large Lignite-Fired Boiler with Targeted In-Furnace Injection 
Technology at 7, presented at COAL-GEN 2010, Aug. 10-12, 2010, 
Pittsburg, PA, available at http://www.ftek.com/media/en-US/pdfs/TPP-592.pdf. See docket EPA-R08-OAR-2010-0406-0419, attachment 6.
    \15\ SIP, Appendix C.1, BART Determination Study for Leland Olds 
Station Unit 1 and 2, Basin Electric Power Cooperative, Final Draft, 
Table 1.2-2--Coal Parameters, p. 8.
---------------------------------------------------------------------------

    On the matter of the ability of LOS to co-fire PRB sub-bituminous 
coal, though PRB coal does contain lesser amounts of catalyst poisons, 
there is no evidence that it has been, or will be, fired in quantities 
significant enough to alter North Dakota's determination of the 
feasibility of SCR at LOS. As noted in comments submitted by NDDH, the 
amount of PRB coal fired at LOS averaged 11.3% between 2003 and 2012, 
with a minimum of 6.5% in 2004 and a maximum of 16.5% in 2005. These 
levels of PRB coal would only marginally lower the amount of catalyst 
poisons in the fuel fired at LOS. Also, when considering this ten-year 
history, there is no indication that the percentage of PRB coal burned 
at LOS is trending upward. Indeed, the highest proportion of PRB coal 
burned at LOS occurred in 2005. In addition, because MRYS and LOS are 
of similar design, there is no reason to conclude that the ability to 
co-fire PRB coal is wholly unique to LOS. That is, the ability of LOS 
to burn PRB coal does not present a critical difference between the 
units.
    Finally, the commenters have not established how the application of 
TIFI is pertinent in relation to SCR feasibility. The commenters do not 
present any evidence regarding how TIFI may affect the amount of 
catalyst poisons in the ash, or any other parameter, that relates to 
SCR feasibility.
    In short, the commenters have not identified any critical 
differences between the coal fired at LOS and that fired at MRYS as it 
pertains to the technical feasibility of SCR as assessed by the State. 
To the extent that differences do exist, the commenters have not shown 
that these differences are extensive enough to alter the assessment of 
SCR feasibility at LOS. If, as found by the district court, it was 
reasonable for the State to conclude that catalyst poisons in the ash 
at MRYS cause SCR to be technically infeasible, then undoubtedly the 
same reasoning extends to LOS, where the State's SIP record indicates 
that even higher amounts of poisons were present.
2. Application of MRYS BACT to Coyote
    Comment: One commenter stated that EPA should conduct additional 
evaluation of NOX emissions for Coyote Station. The 
commenter noted that because Coyote is equipped with a lime spray dryer 
and fabric filter, even fewer fine aerosol particles, including sodium 
fumes, would be emitted into a potential tail-end SCR, and the 
potential for catalyst poisoning would be even less than for LOS and 
MRYS. The commenter argued that EPA based its conclusion in favor of 
approving the State's selection of only SNCR for Coyote on the 
incorrect premise that Coyote is so similar to LOS and MRYS that the 
BACT decision for MRYS supersedes a determination of what appropriate 
controls would be under the reasonable progress provisions of the 
regional haze rule.
    Response: This comment is outside the scope of this reconsideration 
action, as it pertains to a facility other than MRYS or LOS.

D. Comments on Visibility Benefits

    Comment: We received several comments discussing the greater 
visibility benefit of SCR compared to SNCR and asserting that this 
justified disapproving the State's BART determinations for SNCR at MRYS 
Units 1 and 2 and LOS Unit 2.
    Response: As noted in other responses, technical comments 
addressing the merits of SCR over SNCR are essentially irrelevant since 
we are basing our decision on the fact that the State's BART 
determination is supported by its BACT determination for MRYS, and on 
our view that it is appropriate to consider a federal court's ruling on 
our challenge to the State's BACT determination. We nonetheless

[[Page 8555]]

agree with commenters that SCR is a more effective control technology 
for achieving visibility benefit, and we also acknowledge that in 
conducting modeling according to its visibility modeling protocol, 
North Dakota considered the visibility benefit of SCR in an incorrect 
manner.\16\ However, as clarified by the State's comments submitted for 
this reconsideration action,\17\ the State's BART determination was 
based on its recent BACT decision for MRYS and its conclusions that SCR 
is not technically feasible due to unique design characteristics at 
these units. The State rejected SCR on technical feasibility grounds 
rather than on the degree of visibility improvement, making North 
Dakota's erroneous visibility benefit analysis irrelevant. In any case, 
because technically infeasible control options are eliminated from 
further analysis in the BART determination process, any consideration 
of the visibility benefits of SCR is precluded.
---------------------------------------------------------------------------

    \16\ North Dakota also conducted modeling according to the BART 
Guidelines, which provides the visibility benefit information that 
EPA used in our original proposal analyses.
    \17\ See docket EPA-R08-OAR-2010-0406-0418.
---------------------------------------------------------------------------

    Comment: The National Park Service (NPS) noted that EPA only 
discussed visibility impacts and improvements at Theodore Roosevelt 
National Park (North Dakota) in the BART analyses and should have also 
included two other Class I areas, Medicine Lake Wilderness (Montana) 
and Lostwood Wilderness Area (North Dakota), as these areas are also 
within 300 km of MRYS and LOS. The NPS stated that it was impossible to 
determine whether or how EPA considered impacts at the other two Class 
I areas, and that it is appropriate to consider both the degree of 
visibility improvement in a given Class I area as well as the 
cumulative effects of improving visibility across all of the Class I 
areas affected. The NPS also noted that EPA did not mention the 
visibility impacts at Medicine Lake in either the Federal Register 
notice or in the Technical Support Document.
    Response: The commenter's concern is immaterial in this instance. 
The technical feasibility review precedes the analysis of visibility 
impacts in the review process. Since our reconsideration action applies 
only to MRYS Units 1 and 2 and LOS Unit 2, where the State selected 
what it determined to be the most stringent technically feasible 
control option,\18\ per the BART Guidelines, we do not reach the issue 
of visibility impacts.
---------------------------------------------------------------------------

    \18\ Since SCR is eliminated from consideration based on 
technical infeasibility, SNCR becomes the most stringent technically 
feasible control option.
---------------------------------------------------------------------------

E. Comments on Legal Issues

1. BACT Versus BART Determinations
    Comment: One commenter supporting our proposal stated that it would 
be incongruous to make BART more stringent than BACT at the same 
facility. The commenter went on to assert that the procedures set forth 
in the New Source Review (NSR) Manual and BART Guidelines result in 
BART determinations that are less stringent than BACT. The commenter 
noted that unlike the NSR Manual, the BART Guidelines do not call for a 
top-down analysis. Therefore, according to the commenter, in its BART 
analysis North Dakota is not required to select the most effective 
control technology that has not been eliminated. Instead, North Dakota 
has ``discretion to determine the order in which [it] should evaluate 
control options for BART,'' and must provide a justification for the 
technology it selects as ``best.'' 40 CFR 51, appendix Y, section 
IV.E.2. The commenter believes that because North Dakota has discretion 
to select something other than the technology that achieves the 
greatest reduction in emissions, and can forego a control technology 
based on a lack of visibility improvement, BART controls are less 
stringent than BACT controls.
    Another commenter challenging our proposal stated that a BACT 
decision, which does not consider the degree of visibility improvement, 
cannot substitute for BART.
    Response: We acknowledge that in many instances BACT determinations 
will be more stringent than BART determinations, or identical to them. 
However, there are exceptions. First, the timing of the determinations, 
particularly in regard to when a control technology becomes 
commercially available, may yield different BART and BACT 
determinations. Secondly, the degree of visibility improvement, a 
factor considered under BART but not BACT, might result in different 
determinations.
    We disagree in this particular situation that the predicted 
visibility benefits attributable to SCR at MRYS and LOS were small 
enough, as a sole consideration, to have justified the selection of 
SNCR over SCR. The State's own modeling identified greater visibility 
benefits when comparing SCR over SNCR of more than 0.5 deciviews per 
unit at the highest impacted Class I area, Theodore Roosevelt National 
Park. However, taking into consideration the December 21, 2011 court 
decision, in addition to the information the State submitted in SIP 
Amendment No. 1 and the State's comments on our reconsideration action, 
we view the State's BART determinations as a rejection of SCR on 
grounds of technical feasibility rather than low visibility benefits. 
Accordingly, the visibility factor in the BART analysis does not affect 
the outcome here.\19\
---------------------------------------------------------------------------

    \19\ In making BART determinations, section 169A(g)(2) of the 
CAA requires that states consider the following factors: (1) The 
costs of compliance; (2) the energy and non-air quality 
environmental impacts of compliance; (3) any existing pollution 
control technology in use at the source; (4) the remaining useful 
life of the source; and (5) the degree of improvement in visibility 
which may reasonably be anticipated to result from the use of such 
technology.
---------------------------------------------------------------------------

    Comment: One commenter noted that the BART Guidelines do not 
automatically authorize reliance on a BACT limit. The commenter stated 
that where there is any indication that the BACT limit is outdated or 
does not reflect the best available controls, it cannot substitute for 
BART. It is uncontested that SCR has the highest control efficiency of 
all control options. Thus, the commenter argued that SCR is 
indisputably the best, most stringent control, and EPA cannot settle 
for less under the CAA or the implementing BART Guidelines.
    Response: As discussed previously, EPA agrees that BART analyses 
should not rely on outdated determinations reached under other CAA 
standards, but we also do not consider it appropriate to perpetually 
restart the BART rulemaking process to consider late-breaking 
technological developments. Here, the State could reasonably assert 
that at the time of its BART determination, no material new 
technologies would have arisen since its BACT determination. In light 
of the Minnkota Power court's finding that the state reached a 
reasonable conclusion, the Agency does not believe it appropriate to 
disregard the BACT determination and require SCR.
    Comment: One commenter argued that the court never addressed the 
question of whether EPA's own BACT analysis was itself reasonable, let 
alone more persuasive than North Dakota's conclusions regarding 
feasibility. The commenter stated that similarly, the court did not 
consider many of EPA's reasons for concluding that SCR is a feasible 
technology that should be designated as BART. Nor did the court address 
EPA's view that vendor willingness or unwillingness to provide a 
catalyst life guarantee had no relation to whether SCR was commercially 
available or feasible but rather related to

[[Page 8556]]

the cost of using SCR according to the commenter.
    Response: Giving appropriate consideration to the district court's 
decision does not depend on whether the court addressed every potential 
argument that EPA made or could have made based on the record of that 
case. Minnkota Power remains a final decision of a federal court with 
jurisdiction over the subject matter before it, a ruling that addressed 
issues relevant to this action. Further, as discussed above, EPA finds 
it appropriate to look to North Dakota's recent BACT determination as 
indicative of the appropriate BART outcome in this matter.
    Comment: One commenter stated that EPA's BART determination is 
entitled to deference and evaluated under a different standard of 
review than that applicable to the district court in the Minnkota Power 
case. The commenter noted that EPA is not bound by Minnkota Power given 
EPA's authority when making BART determinations under a FIP, or 
ensuring that a state's submission complies with the CAA, and the 
deference given to those decisions. While the definition of technical 
feasibility is substantially the same for the BACT and BART programs, 
the legal standard that governed the district court's review of North 
Dakota's BACT decision is not the same legal standard that applies to 
review of EPA's decision in promulgating a FIP or reviewing the 
adequacy of a state regional haze plan, such that the district court 
decision cannot govern here according to the commenter.
    Response: EPA does not view Minnkota Power as directly governing 
the outcome of this matter, but the Agency has taken into consideration 
this federal court ruling in assessing North Dakota's BART 
determinations for MRYS and LOS. In reviewing the State's 
determinations, EPA considered whether North Dakota acted reasonably. 
The decision in Minnkota Power was one factor EPA took into account in 
deciding not to disapprove North Dakota's SIP. As noted above, this was 
not the only factor. EPA also took into account the BART Guidelines and 
North Dakota's contemporaneous BACT determination. We agree that 
different legal standards govern the district court's review of North 
Dakota's BACT determination and EPA's review of its decision regarding 
the adequacy of the SIP.
2. Consideration of the Presumptive NOX BART Emissions Limit
    Comment: Commenters stated that the BACT determination does not 
fulfill BART requirements for either MRYS or LOS since it contains an 
emissions limit higher than presumptive BART, and EPA has not conducted 
a five-factor BART analysis justifying an emission limit above 
presumptive BART. The BART Guidelines provide that presumptive BART for 
all lignite-fired cyclone boilers is a NOX emissions limit 
of 0.10 lb/MMBtu, based upon the installation of SCR control 
technology. 40 CFR 51, appendix Y, section IV.E.5. The commenters note 
that EPA specifically evaluated the use of SCR on both MRYS and LOS in 
determining the presumptive NOX BART level and found it 
feasible and cost effective.\20\ The commenters argued that EPA has not 
refuted the presumptive determination in this case.
---------------------------------------------------------------------------

    \20\ See EPA, Technical Support Document: Methodology for 
Developing BART NOX Presumptive Limits (June 15, 2005), 
docket EPA-R08-OAR-2010-0406-0092; Technical Support Document for 
BART NOX Limits for Electric Generating Units Excel 
Spreadsheet (June 15, 2005), docket EPA-HQ-OAR-2002-0076-0446.
---------------------------------------------------------------------------

    Response: We disagree with the commenters. EPA is reaffirming our 
approval of three BART determinations that included five-factor 
analyses conducted by the State of North Dakota for MRYS Units 1 and 2 
and LOS Unit 2. Thus, it was not necessary for EPA to conduct its own 
five-factor analyses or to refute the EPA analysis done in 2005 in 
support of the development of the NOX presumptive limits. 
The emissions limits for SNCR in the State's analyses were based on a 
careful consideration of the statutory factors. While EPA did not agree 
with all aspects of the State's analyses, the deciding factor was that 
of technical feasibility. As discussed in the ``Basis for Today's Final 
Action'' section above, there are two principles from our BART 
Guidelines that are relevant to this situation. The first is that as 
part of a BART analysis, states may eliminate technically infeasible 
control options from further review. The second is that states 
generally may rely on a recent BACT determination for a source for 
purposes of determining BART for that source. North Dakota's BART 
determination for MRYS was developed at approximately the same time as 
its BACT determination for this facility, and was upheld by a U.S. 
district court. EPA finds it appropriate to approve the emissions 
limits for SNCR (above the presumptive emissions limits of 0.10 lb/
MMBtu for lignite-fired cyclone boilers, based upon installation of SCR 
control technology) predicated on the State's analyses and its 
determination that SCR is eliminated from consideration based upon 
grounds of technical infeasibility.
    Comment: Commenters stated that EPA did not consider non-air 
quality benefits in rejecting a presumptive NOX BART limit 
of 0.10 lb/MMBtu or lower, which is based on installation of SCR for 
cyclone boilers. The commenters noted that impacts are much more severe 
with SNCR than SCR as much more ammonia is used and released. The 
commenters list non-air-quality impacts regarding transportation, 
storage and use of ammonia including safety concerns, and potential fly 
ash contamination in addition to potential visibility impacts of 
emissions of unreacted ammonia (``ammonia slip'') that offset the 
claimed visibility improvement by SNCR compared to SCR.
    Response: We disagree with the commenters. They asserted that the 
ammonia slip from SNCR would be greater than from SCR, but this 
difference is not pertinent because SCR was eliminated from 
consideration based on technical infeasibility. (As discussed in our 
responses elsewhere, in approving BART determinations that are above 
the presumptive limit at MRYS and LOS, EPA has taken into consideration 
North Dakota's five-factor analyses, the State's reliance on a recent 
BACT determination, and a federal court ruling that addressed issues 
relevant to this action.) The commenters did not assert that SNCR 
should be eliminated from consideration based on ammonia slip. With SCR 
an unavailable option, SNCR is the most stringent technically feasible 
control option, and a comparison of the non-air-quality impacts between 
the eliminated technology (SCR) and the remaining most stringent 
technology (SNCR) is immaterial.
3. Collateral Estoppel
    Comment: Commenters expressed differing opinions on whether 
collateral estoppel binds EPA to the Minnkota Power decision. The 
doctrine of collateral estoppel, also known as issue preclusion, 
provides that ``once a court has decided an issue of fact or law 
necessary to its judgment that decision may preclude relitigation of 
the issue in a suit on a different cause of action involving a party to 
the first case.'' Air Line Pilots Ass'n Int'l v. Trans States Airlines, 
638 F.3d 572, 579 (8th Cir. 2011) (citations and punctuation omitted); 
see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979).
    Response: Collateral estoppel does not govern EPA's decision in 
this matter. The district court in Minnkota Power decided the case 
under a standard of review outlined in a consent decree that settled an 
enforcement matter. Under

[[Page 8557]]

the standard derived from the enforcement consent decree, EPA had the 
burden of proving that the State's BACT determination was unreasonable. 
On the other hand, when courts review EPA action on a state's BART 
determination, an altogether different standard applies: courts defer 
to EPA's technical expertise, and the petitioning party must show that 
EPA's action was arbitrary and capricious. Thus, because EPA had a much 
higher burden of proof in the district court than it would have on 
review of a SIP approval, collateral estoppel does not apply here. 
``Failure of one party to carry the burden of persuasion on an issue 
should not establish the issue in favor of an adversary who otherwise 
would have the burden of persuasion on that issue in later 
litigation.'' 18 C. Wright, A. Miller & E. Cooper, Federal Practice and 
Procedure Sec.  4422 at 592 (2002), quoted in Cobb v. Pozzi, 352 F.3d 
79, 101-102 (2d Cir. N.Y. 2003).
    As to LOS Unit 2, an additional reason that EPA is not collaterally 
estopped with respect to this action is that Minnkota Power only 
involved MRYS, not LOS. Because the case did not specifically address 
the latter station, collateral estoppel cannot be invoked with respect 
to it. For these reasons, the Agency's decision in this proceeding is 
not constrained by the district court's Minnkota Power decision. That 
is not to say, however, that the district court's decision is 
irrelevant. Minnkota Power remains a final decision of a federal court 
with jurisdiction over the subject matter before it, a ruling that 
addressed some issues relevant to this action. EPA has reviewed and 
considered the court's opinion, and views it as relevant to but not 
decisive of the questions presented in this matter.
    Finally, although EPA does not agree that collateral estoppel 
applies here, our final action is the same as if we had accepted as 
persuasive the comments asserting that it does.
4. EPA Versus State Authority
    Comment: Several commenters in supporting our proposal highlighted 
that in approving the State's BART determinations, EPA appropriately 
respected the State of North Dakota's statutory role in establishing 
BART limits and implied that EPA lacked authority to pursue another 
course.
    Response: Courts have rejected state primacy arguments in several 
rulings that have occurred since the close of EPA's public comment 
period for this action. EPA's role in regional haze planning includes 
examining the rationale for and the reasonableness of states' 
underlying decisions.
5. Scope of Reconsideration Action
    Comment: One commenter stated that there was no need to grant 
petitioners an opportunity to comment on the Minnkota Power ruling 
because EPA had no choice but to follow it.
    Response: We disagree that EPA had no choice but to follow the 
Minnkota Power ruling. Section 307(d)(7)(B) of the CAA prohibits a 
party from seeking judicial review of objections to a rule that were 
not raised with reasonable specificity during the comment period. The 
CAA provides a two-part exception to this general ban on judicial 
review of newly raised objections. The EPA Administrator must convene a 
reconsideration proceeding if the petitioner can demonstrate that:
    1. It was impracticable to raise such an objection during the 
comment period or the information became available after the period for 
public comment; and
    2. The objection is of central relevance to the outcome of the 
rule.

The significant consideration that EPA has given to the district court 
decision, which was made 30 days after the close of our public comment 
period, meets the criteria for convening a reconsideration proceeding.
    Further, the premise of the comment is incorrect. The comment is 
built on an assertion that EPA had ``no choice'' but to follow the 
Minnkota Power holding. For the Agency to have no choice, either 
collateral estoppel or res judicata would have to apply. Neither 
doctrine does. The district court in Minnkota Power decided the case 
under a standard of review outlined in a consent decree that settled an 
enforcement matter. There is no possibility of res judicata, because 
EPA's regional haze rulemaking action was not before the court for 
decision. And as described above, EPA's action in this proceeding is 
not constrained by collateral estoppel based on Minnkota Power. 
Therefore, there is no reason to conclude that the Minnkota Power 
decision left EPA ``no choice'' with respect to this rulemaking action.
    Comment: One commenter stated that issues involving the technical 
feasibility, cost effectiveness, and visibility impact of potential 
control technologies are beyond the scope of this reconsideration 
action.
    Response: EPA initiated the reconsideration of our final rule based 
on our approval of the State's NOX BART determination and 
limits for MRYS Units 1 and 2 and LOS Unit 2. At the time of our 
proposed reconsideration, to allow for broad public comment, we decided 
not to limit the relevant scope of comments, other than requiring that 
they address one or more of these units.

F. Comments Generally in Favor of Our Proposal

    Comment: We received more than 1,200 comment letters in support of 
our rulemaking from concerned citizens and members representing rural 
power cooperatives. These comments were received at the public hearings 
in Bismarck, North Dakota, by internet, and through the mail. Each of 
these commenters was generally in favor of our proposed decision to 
approve North Dakota's NOX BART determinations for MRYS 
Units 1 and 2 and LOS Unit 2. These comments generally stated that SCR 
is an unproven technology for these type of units and would not 
noticeably improve visibility. They also expressed concern about 
increasing electricity costs.
    Response: We acknowledge these general comments that supported our 
proposed action. While we disagree with some of the commenters' 
reasoning on the points of technical feasibility, visibility benefits, 
and cost, these points are largely no longer relevant, because we have 
decided to finalize our approval of North Dakota's NOX BART 
determinations for MRYS Units 1 and 2 and LOS Unit 2 on grounds 
explained elsewhere.

G. Comments Generally Against Our Proposal

    Comment: We received over 650 comment letters that urged us to 
require SCR at MRYS Units 1 and 2 and LOS Unit 2 based on our original 
rigorous technical analyses that showed SCR was cost effective and a 
commonly used technology with more than 400 plants using the technology 
in the United States. Commenters stated that SCR technology would 
reduce pollution by 90% at these plants. Some commenters generally 
requested that EPA lower the emission limits for LOS Unit 1. Some 
commenters also generally discussed health effects and health costs 
related to regional haze pollutants. Some commenters also stated that 
rapid oil and gas development makes it more critical to install the 
best pollution controls at these plants.
    Response: Because we have decided to finalize our approval of North 
Dakota's NOX BART determinations for MRYS Units 1 and 2 and 
LOS Unit 2 on the grounds explained elsewhere in this document, it 
would not be appropriate to require SCR solely based on our original 
technical analyses.
    We appreciate the commenters' concerns regarding the negative 
health

[[Page 8558]]

impacts of pollutants that contribute to regional haze. We agree that 
these pollutants can have effects on human health, but such effects are 
not taken into account in setting BART limits under the regional haze 
program. The next phase of the regional haze program will, as 
appropriate, lead to further emission reductions.
    Regarding the commenters' concerns about rapid oil and gas 
development in North Dakota, while that is beyond the scope of this 
reconsideration action, EPA will be closely reviewing North Dakota's 
plans in future planning periods regarding potential impacts from oil 
and gas development as well as other anthropogenic emissions on 
regional haze.
    Finally, emission limits at LOS Unit 1 are outside the scope of 
this reconsideration action; we only reconsidered the NOX 
BART determinations for MRYS Units 1 and 2 and LOS Unit 2.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and 
Budget because it merely approves state law as meeting federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. In this reconsideration, EPA is affirming its 
prior approval of North Dakota SIP requirements for two sources in 
North Dakota.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act. This action is not 
imposing any additional burden on the public.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
and Flexibility Act. In making this determination, the impact of 
concern is any significant adverse economic impact on small entities. 
An agency may certify that a rule will not have a significant economic 
impact on a substantial number of small entities if the rule relieves 
regulatory burden, has no net burden or otherwise has a positive 
economic effect on the small entities subject to the rule. In this 
reconsideration, EPA is affirming its prior approval of North Dakota 
SIP requirements for two sources in North Dakota. The action merely 
approves state law as meeting federal requirements and imposes no 
additional requirements beyond those imposed by state law. We have 
therefore concluded that this action will have no net regulatory burden 
for all directly regulated small entities.
Unfunded Mandates Reform Act
    This action does not contain any unfunded mandate as described in 
the Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector.

D. Executive Order 13132: Federalism

    This action does not have federalism implications. It will 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.

E. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 because it does not impose substantial direct 
compliance costs and does not preempt tribal law. In this 
reconsideration, EPA is affirming its prior approval of North Dakota 
SIP requirements for two sources in North Dakota. The action merely 
approves state law as meeting federal requirements and imposes no 
additional requirements beyond those imposed by state law. Thus, 
Executive Order 13175 does not apply to this rule.

F. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it affirms a prior approval of a state action 
implementing a federal standard.

G. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

H. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

I. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations. In this reconsideration, EPA is affirming its 
prior approval of North Dakota SIP requirements for two sources in 
North Dakota which increase environmental protection for the general 
population. The action merely approves state law as meeting federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. This regulatory option was selected as the 
preferable regulatory option for the reasons summarized in section II.B 
of this action. EPA provided meaningful participation opportunities for 
minority, low-income or indigenous populations or tribes in the 
development of this rule by conducting a public hearing on May 15, 2013 
and by providing a three-month public comment period as described in 
section I of this action.
    As part of this environmental justice assessment, EPA also reviewed 
2013 U.S. Census Bureau data for Mercer and Oliver counties \21\ where 
the two sources involved in this reconsideration action are located. 
Both counties have small minority populations with the white, non-
minority populations comprising over 95% of the whole. Both counties 
are also below the 2013 national official poverty rate of 14.5% and the 
Midwest poverty rate of 12.9%.\22\ The 2013 poverty rates for Mercer 
and Oliver counties are 7.2% and 11.4%, respectively. For comparison, 
the

[[Page 8559]]

poverty rate for the State of North Dakota is 12.1%. Supporting 
documentation is included in the docket.
---------------------------------------------------------------------------

    \21\ Mercer County, http://quickfacts.census.gov/qfd/states/38/38057.html, Oliver County, http://quickfacts.census.gov/qfd/states/38/38065.html.
    \22\ Income and Poverty in the United States: 2013, Current 
Population Reports, DeNavas-Walt and Proctor, Issued September 2014, 
P60-249, pp. 1 and 15. Available at https://www.census.gov/content/dam/Census/library/publications/2014/demo/p60-249.pdf.
---------------------------------------------------------------------------

    EPA's policy on environmental justice is to ensure the fair 
treatment and meaningful involvement of all people regardless of race, 
color, national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies. Our review here for this reconsideration action is consistent 
with EPA's policy. This section, along with the supporting 
documentation in the docket, constitute EPA's full analysis of 
environmental justice for this action.

J. Congressional Review Act

    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

K. Petitions for Judicial Review

    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 April 20, 2015. 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 section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxides, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur dioxide, 
Volatile organic compounds.

    Dated: February 6, 2015.
Gina McCarthy,
Administrator.
[FR Doc. 2015-03177 Filed 2-17-15; 8:45 am]
BILLING CODE 6560-50-P



                                                8550             Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations

                                                           EPA APPROVED GUAM NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES—Continued
                                                                                                                                         State
                                                                                           Applicable geographic or
                                                     Name of SIP provision                                                             submittal             EPA approval date                     Explanation
                                                                                             nonattainment area                          date

                                                Appendix H: Diffusion model            State-wide ...............................       8/14/1973     10/19/1978, 43 FR 48638 .......     Revision to original SIP. See
                                                  computer printout.                                                                                                                        40 CFR 52.2673(c)(1).
                                                Appendix J: Minutes and let-           State-wide ...............................       8/14/1973     10/19/1978, 43 FR 48638 .......     Revision to original SIP. See
                                                  ters of public hearing on                                                                                                                 40 CFR 52.2673(c)(1).
                                                  compliance schedules.
                                                Appendix K: Inventory data for         State-wide ...............................       8/14/1973     10/19/1978, 43 FR 48638 .......     Revision to original SIP. See
                                                  1973.                                                                                                                                     40 CFR 52.2673(c)(1).



                                                [FR Doc. 2015–03178 Filed 2–17–15; 8:45 am]                 warranted to its 2012 approval of the                         1. Application of MRYS BACT to LOS Unit
                                                BILLING CODE 6560–50–P                                      NOX BART limits for these units.                                 2
                                                                                                                                                                          2. Application of MRYS BACT to Coyote
                                                                                                            DATES: This final action is effective                         D. Comments on Visibility Benefits
                                                                                                            March 20, 2015.                                               E. Comments on Legal Issues
                                                ENVIRONMENTAL PROTECTION
                                                                                                            ADDRESSES: EPA has established a                              1. BACT versus BART Determinations
                                                AGENCY                                                                                                                    2. Consideration of the Presumptive NOX
                                                                                                            docket for this action under Docket ID
                                                                                                                                                                             BART Emissions Limit
                                                40 CFR Part 52                                              No. EPA–R08–OAR–2010–0406. All                                3. Collateral Estoppel
                                                                                                            documents in the docket are listed in                         4. EPA versus State Authority
                                                [EPA–R08–OAR–2010–0406; FRL–9922–80–
                                                OAR]                                                        the http://www.regulations.gov index.                         5. Scope of Reconsideration Action
                                                                                                            Although listed in the index, some                            F. Comments Generally in Favor of Our
                                                Approval and Promulgation of                                information is not publicly available,                           Proposal
                                                Implementation Plans; North Dakota;                         e.g., Confidential Business Information                       G. Comments Generally Against Our
                                                Regional Haze State Implementation                          (CBI) or other information whose                                 Proposal
                                                                                                            disclosure is restricted by statute.                        IV. Statutory and Executive Order Reviews
                                                Plan; Federal Implementation Plan for
                                                Interstate Transport of Pollution                           Certain other material, such as                             Definitions
                                                Affecting Visibility and Regional Haze;                     copyrighted material, is not placed on
                                                                                                            the Internet and will be publicly                             For the purpose of this document, we
                                                Reconsideration                                                                                                         are giving meaning to certain words or
                                                                                                            available only in hard-copy form.
                                                AGENCY: Environmental Protection                            Publicly available docket materials are                     initials as follows:
                                                Agency.                                                                                                                   • The word Act or initials CAA mean
                                                                                                            available either electronically through
                                                ACTION: Notice of final action on                                                                                       or refer to the Clean Air Act, unless the
                                                                                                            http://www.regulations.gov or in hard
                                                reconsideration.                                                                                                        context indicates otherwise.
                                                                                                            copy at the Air Program, Environmental                        • The initials ASOFA mean or refer to
                                                                                                            Protection Agency (EPA), Region 8,                          advanced separated overfire air.
                                                SUMMARY:    On April 6, 2012,
                                                                                                            1595 Wynkoop St., Denver, Colorado                            • The initials BACT mean or refer to
                                                Environmental Protection Agency (EPA)
                                                                                                            80202–1129. EPA requests that if at all                     best available control technology.
                                                published a final rule partially
                                                                                                            possible, you contact the individual                          • The initials BART mean or refer to
                                                approving and partially disapproving a
                                                                                                            listed in the FOR FURTHER INFORMATION                       best available retrofit technology.
                                                North Dakota State Implementation Plan
                                                (SIP) submittal addressing regional haze
                                                                                                            CONTACT section to view the hard copy                         • The initials EPA or the words we,
                                                                                                            of the docket. You may view the hard                        us or our mean or refer to the United
                                                submitted by the Governor of North
                                                                                                            copy of the docket Monday through                           States Environmental Protection
                                                Dakota on March 3, 2010, along with
                                                                                                            Friday, 8:00 a.m. to 4:00 p.m., excluding                   Agency.
                                                North Dakota’s SIP Supplement No. 1
                                                submitted on July 27, 2010, and SIP
                                                                                                            federal holidays.                                             • The initials FIP mean or refer to
                                                Amendment No. 1 submitted on July 28,                       FOR FURTHER INFORMATION CONTACT: Gail                       Federal Implementation Plan.
                                                2011. The Administrator subsequently                        Fallon, Air Program, U.S.                                     • The initials LOS mean or refer to
                                                received a petition requesting EPA to                       Environmental Protection Agency,                            Leland Olds Station.
                                                                                                            Region 8, Mailcode 8P–AR, 1595                                • The initials MRYS mean or refer to
                                                reconsider its approval of certain
                                                                                                            Wynkoop Street, Denver, Colorado,                           Milton R. Young Station.
                                                elements of North Dakota’s regional                                                                                       • The initials NDDH mean or refer to
                                                haze SIP. Specifically, the petition                        80202–1129, (303) 312–6281,
                                                                                                            Fallon.Gail@epa.gov.                                        the North Dakota Department of Health.
                                                raised several objections to EPA’s                                                                                        • The words North Dakota and State
                                                approval of the State’s best available                      SUPPLEMENTARY INFORMATION:                                  mean the State of North Dakota unless
                                                retrofit technology (BART) emission                                                                                     the context indicates otherwise.
                                                limits for nitrogen oxides (NOX) for                        Table of Contents
                                                                                                                                                                          • The initials NOX mean or refer to
                                                Milton R. Young Station (MRYS) Units                        I. Background                                               nitrogen oxides.
                                                1 and 2 and Leland Olds Station (LOS)                       II. Today’s Action                                            • The initials NPS mean or refer to
                                                Unit 2. On March 15, 2013, EPA                                 A. Issue for Which Reconsideration Was                   the National Park Service.
                                                announced its decision to reconsider its                          Granted                                                 • The initials NSR mean or refer to
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                                                approval of the State’s NOX BART limits                        B. Basis for Today’s Final Action
                                                                                                            III. Issues Raised by Commenters and EPA’s
                                                                                                                                                                        new source review.
                                                for these facilities. In the same action,
                                                                                                                  Responses                                               • The initials PRB mean or refer to
                                                EPA proposed to affirm its prior                               A. Comments on Technical Feasibility of                  the Powder River Basin.
                                                approval of these elements of North                               SCR                                                     • The initials PSD mean or refer to
                                                Dakota’s SIP. As a result of this                              B. Comments on Emission Limits for SNCR                  prevention of signification deterioration.
                                                reconsideration process, EPA has                               C. Comments on Application of MRYS                         • The initials SCR mean or refer to
                                                concluded that no changes are                                     BACT Court Ruling to Other Units                      selective catalytic reduction.


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                                                                 Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations                                                  8551

                                                  • The initials SIP mean or refer to                    District Court decision 2 during the                   II. Today’s Action
                                                State Implementation Plan.                               comment period because of the timing
                                                                                                                                                                A. Issue for Which Reconsideration Was
                                                  • The initials SNCR mean or refer to                   of that decision, and that their
                                                                                                                                                                Granted
                                                selective non-catalytic reduction.                       objections are of central relevance to
                                                  • The initials TIFI mean or refer to                   EPA’s final rule because EPA relied on                    EPA granted the petition to reconsider
                                                targeted in-furnace injection.                           the district court decision in explaining              our approval of the State’s NOX BART
                                                                                                         the basis for its final rule.                          emission limits for MRYS Units 1 and
                                                I. Background                                                                                                   2 and LOS Unit 2. After reconsideration
                                                                                                           Issues raised in the other two                       of these matters, we are finalizing our
                                                   On April 6, 2012, EPA published a
                                                final rule partially approving and                       petitions for reconsideration from North               approval of the emission limits. We did
                                                partially disapproving a North Dakota                    Dakota and Great River Energy were                     not reconsider or request comment on
                                                SIP submittal addressing regional haze                   addressed in a decision on the parallel                any other provisions of our final rule
                                                submitted by the Governor of North                       lawsuits issued by the United States                   issued on April 6, 2012, in which we
                                                Dakota on March 3, 2010, along with                      Court of Appeals for the Eighth Circuit                partially approved and partially
                                                North Dakota’s SIP Supplement No. 1                      on September 23, 2013.3 The court set                  disapproved the North Dakota regional
                                                submitted on July 27, 2010, and SIP                      aside the issues raised in the                         haze SIP.
                                                Amendment No. 1 submitted on July 28,                    Earthjustice lawsuit, pending EPA’s
                                                                                                         action on the June 2012 petition for                   B. Basis for Today’s Final Action
                                                2011.1 77 FR 20894. We gave the history
                                                of the North Dakota regional haze                        reconsideration.                                          We have fully considered all
                                                rulemaking process that preceded                           We requested comments on our                         significant comments on our proposal
                                                today’s final action in the April 6, 2012                March 15, 2013 proposed                                and have concluded that no changes
                                                rule. 77 FR at 20895–20897. Following                    reconsideration and provided a two-                    from our proposal are warranted. Our
                                                our April 6, 2012 final rule, the                        month comment period, which closed                     action is based on an evaluation of
                                                Administrator received petitions for                     on May 14, 2013. At the request of the                 North Dakota’s SIP submittals against
                                                reconsideration from North Dakota,                       North Dakota Department of Health                      the regional haze requirements at 40
                                                Great River Energy (the owner of Coal                    (NDDH), we provided a public hearing                   CFR 51.300–51.309 and Clean Air Act
                                                Creek Station), and Earthjustice on                      on May 15, 2013. To allow for a full 30-               (CAA) sections 169A and 169B. All
                                                behalf of environmental groups. Parallel                 day public comment period for the                      general SIP requirements contained in
                                                lawsuits were also filed by these parties.               submission of additional comments                      CAA section 110, other provisions of the
                                                   On March 15, 2013, EPA published a                    following the public hearing, we                       CAA, and our regulations applicable to
                                                notice of proposed rulemaking initiating                 extended the comment period to June                    this action were also evaluated. The
                                                the reconsideration of our approval of                   17, 2013.                                              purpose of this action is to ensure
                                                the State’s NOX BART determination                                                                              compliance with these requirements.
                                                                                                           We received a significant number of                  Our authority for action on North
                                                and limits for MRYS Units 1 and 2 and
                                                LOS Unit 2. In that notice, we proposed                  comments on our proposed                               Dakota’s SIP submittals is based on CAA
                                                to affirm our prior approval of the                      reconsideration action. Many                           section 110(k).
                                                determination and limits. We did not                     comments, primarily from state and city                   As discussed in our rationale for our
                                                grant reconsideration of, or request                     agencies, rural power cooperatives, and                proposed decision to affirm our prior
                                                comment on, any other provisions of the                  industrial facilities and groups,                      approval, two critical principles from
                                                final rule.                                              supported our proposed affirmation of                  our BART Guidelines are relevant to
                                                   Our action was prompted by a June 4,                  our approval of the State’s                            this situation. See 78 FR at 16454–
                                                2012 petition for reconsideration                        determinations for the units in question.              16455. The first is that as part of a BART
                                                submitted by Earthjustice on behalf of                   Many comments from citizens and                        analysis, states may eliminate
                                                the National Parks Conservation                          environmental groups were critical of                  technically infeasible control options
                                                Association and the Sierra Club. The                     our proposed action.                                   from further review. The second is that
                                                petition requested that EPA reconsider                     In this action, we are responding to                 states generally may rely on a recent
                                                its approval of the State’s NOX BART                     the timely comments we have received,                  best available control technology
                                                determinations for MRYS Units 1 and 2                    taking final action on our                             (BACT) determination for a source for
                                                and LOS Unit 2. The petition asserted                    reconsideration, and explaining the                    purposes of determining BART for that
                                                that the environmental groups were                       bases for our action. We did not                       source.4 Considered in light of the facts
                                                unable to raise their objections to EPA’s                consider and are not responding to any                 of this matter, those principles support
                                                reliance on a December 21, 2011 U.S.                     comments received after the close of the               our decision to affirm our prior
                                                                                                         extended comment period on June 17,                    approval.
                                                   1 Although in the April 6, 2012 final rule we
                                                                                                         2013. Our March 15, 2013 proposed rule                   Our BART Guidelines indicate that
                                                characterized our action as being an approval of
                                                                                                         provides additional background                         states may generally consider recent
                                                part of SIP Amendment No. 1, on further review                                                                  BACT determinations to be BART
                                                EPA’s position is that we acted on the entirety of       information on the December 21, 2011
                                                SIP Amendment No. 1 in our April 2012 final rule.        district court decision and on our                     without further analysis. Here, as
                                                This submittal included regional haze plan               rationale for this reconsideration.
                                                revisions for Coyote Station, additions to SIP                                                                    4 Among other things, EPA’s BART Guidelines,

                                                Appendix C.4 for MRYS, and documentation                                                                        codified at 40 CFR part 51, appendix Y, describe a
                                                                                                           2 United States v. Minnkota Power Cooperative,
                                                pertaining to the State’s public participation                                                                  set of steps for determining BART. CAA section
                                                process and consultation with the Federal Land           Inc., 831 F. Supp. 2d 1109 (D.N.D. 2012).              169A(b)(2) requires that BART be determined
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                                                Managers. The materials that North Dakota                  3 North Dakota v. EPA, 730 F.3d 750 (8th Cir.        pursuant to the BART Guidelines for power plants
                                                submitted for incorporation into Appendix C.4            2013), cert. denied, 134 S. Ct. 2662 (2014). The       with a total generating capacity over 750 megawatts.
                                                constitute supporting documentation relevant to its      court’s ruling mostly upheld EPA’s final decisions,    With respect to other BART sources, the BART
                                                NOX BACT determination for MRYS and related              including our disapproval for Coal Creek Station,      Guidelines reflect EPA’s interpretations regarding
                                                litigation. Therefore, EPA took the only appropriate     but vacated our Coal Creek Federal Implementation      certain key principles related to BART, including
                                                action on Appendix C.4: to incorporate the               Plan (FIP) on the grounds that we failed to consider   the two principles described in the text. For
                                                provided information as supporting documentation         existing controls. EPA remains obligated to            reference, the generating capacities for MRYS and
                                                relevant to the State’s NOX BART determinations          promulgate a FIP or approve a SIP revision for Coal    LOS are 794 megawatts and 656 megawatts,
                                                for MRYS and LOS.                                        Creek.                                                 respectively.



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                                                8552             Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations

                                                discussed below in more detail, the                      that EPA had not shown that North                     experience with SCR at the Texas plants
                                                State’s BART determinations were                         Dakota’s determination was                            at the time of North Dakota’s BACT
                                                developed at approximately the same                      unreasonable. Because the criteria for                determination for MRYS, the
                                                time as its BACT determination for one                   determining the technical feasibility of              commenters note that the technology
                                                of the facilities, a decision which was                  a control technology are essentially                  has now been in operation for about
                                                upheld by a U.S. district court. Based on                identical for both BART and BACT, as                  three years at the Texas plants,
                                                these facts, we consider it appropriate to               discussed in our prior final rule at 77 FR            exceeding the catalyst’s guaranteed
                                                approve the State’s selection of selective               20897, we consider it appropriate to                  lifetime. The Texas plants’ catalyst was
                                                non-catalytic reduction (SNCR) plus                      take the federal district court’s ruling on           supplied by Johnson Matthey Catalysts,
                                                advanced separated overfire air                          that BACT determination into account                  the same company that (after the State’s
                                                (ASOFA) controls as BART at MRYS                         in our assessment of North Dakota’s                   BART determination) offered to
                                                Units 1 and 2 and LOS Unit 2.5 As we                     regional haze SIP.                                    guarantee SCR on North Dakota lignite
                                                noted in our proposal, evaluations of                       In our review of a BART                            with standard industry performance and
                                                technical feasibility often change over                  determination in a regional haze SIP,                 lifetime catalyst guarantees.7
                                                time. In the future, North Dakota may                    EPA’s task is to determine whether the                Commenters point to EPA’s BART
                                                reach a different conclusion about the                   State acted reasonably and in                         Guidelines to assert that ‘‘technical
                                                technical feasibility of selective catalytic             accordance with the requirements of the               feasibility changes over time as
                                                reduction (SCR) controls at these plants                 CAA and our regulations. We have                      technologies evolve,’’ and that EPA
                                                as part of, for example, a reasonable                    accordingly reviewed North Dakota’s                   therefore cannot rely on the Minnkota
                                                progress analysis. The regional haze                     SIP based on the record before the State              Power decision given more recent
                                                program requires additional reasonable                   at the time of its decision to determine              technological developments.
                                                progress reviews every ten years to                      whether it acted reasonably in                           Response: We do not agree that EPA
                                                ensure that states make progress toward                  concluding that SCR is technically                    should take these recent developments
                                                the visibility goal of the CAA.6                         infeasible for MRYS and LOS. As noted                 into account at this late date. In this
                                                Therefore, we expect that North Dakota                   above, the December 21, 2011 Minnkota                 matter the BACT and BART
                                                will reassess the technical feasibility of               Power ruling suggests that North Dakota               determinations by the state occurred
                                                SCR controls at these plants as part of                  was not clearly unreasonable in                       relatively close to each other in time:
                                                a future reasonable progress analysis.                   deciding that SCR could not be used on                North Dakota’s regional haze public
                                                                                                         these units. This decision, along with                comment period closed in January 2010,
                                                III. Issues Raised by Commenters and                     the discussion in the BART Guidelines                 while the BACT determination was
                                                EPA’s Responses                                          indicating that technically infeasible                finalized in November 2010, and North
                                                A. Comments on Technical Feasibility                     options may be eliminated and that                    Dakota’s public comment period on its
                                                of SCR                                                   states may generally rely on recent                   SIP Amendment No. 1 ended on March
                                                                                                         BACT determinations in making their                   12, 2011. Therefore, the State could
                                                   We received numerous comments on                      BART decisions, forms the basis for our
                                                our proposal regarding the technical                                                                           reasonably assert that at the time of its
                                                                                                         approval of North Dakota’s BART                       BART determination, no material new
                                                feasibility of SCR for cyclone boilers                   determinations for these two facilities.
                                                burning North Dakota lignite. Many of                                                                          technologies would have arisen since its
                                                                                                         Were EPA making the BART                              BACT determination. Similarly, our
                                                the comments supported the conclusion                    determination in the absence of the
                                                that SCR is technically feasible for these                                                                     review of the BART determination was
                                                                                                         factors present here, we would not                    made at close to the same time that the
                                                types of boilers. Regardless of EPA’s                    eliminate SCR from consideration based
                                                position regarding the technical                                                                               district court reached its decision, on
                                                                                                         on technical infeasibility. Given the                 much the same record. And while (as
                                                feasibility of SCR for the units in                      basis for our decision, however, we do
                                                question, the Minnkota Power court’s                                                                           noted elsewhere in this notice) we do
                                                                                                         not consider comments regarding the                   not view the Minnkota Power decision
                                                ruling in our challenge to the State’s                   technical feasibility of SCR to be
                                                BACT determination suggests that this                                                                          as binding or determinative, we do view
                                                                                                         relevant to our decision regarding the                it as relevant to our consideration of this
                                                is an issue on which reasonable minds                    reasonableness of North Dakota’s BART
                                                may differ. Based on the terms of an                                                                           matter.
                                                                                                         determination. Therefore, we generally                   It is true that the EPA generally has
                                                April 24, 2006 consent decree settling                   are not summarizing or responding to                  discretion, in its CAA rulemaking
                                                an enforcement case for MRYS, if EPA                     these comments. However, we are                       decisions, to take advantage of the
                                                disagreed with the State’s BACT                          responding to comments that may be                    greater knowledge that may result from
                                                determination, EPA had the burden of                     relevant to other aspects of this action.             receiving additional information. See
                                                demonstrating to the court that North                       Comment: Environmental groups                      Michigan v. Thomas, 805 F.2d 176, 185
                                                Dakota’s BACT determination was                          commented that EPA should consider                    (6th Cir. 1986) (‘‘At no time should an
                                                unreasonable. EPA did disagree with                      SCR’s technical feasibility in light of               agency be estopped from using its
                                                North Dakota’s BACT determination and                    more recent developments such as the                  increased expertise.’’). But EPA also has
                                                challenged that determination in federal                 Electric Power Research Institute’s                   the legal responsibility to complete CAA
                                                district court. In its December 21, 2011                 (EPRI) research and operating                         actions without unreasonable delay. See
                                                decision, however, the court concluded                   experience gained with Texas lignite.                 CAA section 304(a). Here, the
                                                                                                         The EPRI research described by the                    developments cited by the commenters
                                                   5 The associated BART limits are 0.36 lb/MMBtu
                                                                                                         commenters relates to work simulating                 occurred after the state’s BACT and
                                                for MRYS Unit 1, 0.35 lb/MMBtu for MRYS Unit
                                                                                                         catalyst fouling using chemical kinetic               regional haze decision processes, and
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                                                2, and 0.35 lb/MMBtu for LOS Unit 2, on a 30-day
                                                rolling average basis. The SIP contains separate         modeling. Preliminary results from this               for the most part after the Minnkota
                                                limits for MRYS Units 1 and 2 during startup of          research were presented at conferences                decision as well. As a general matter,
                                                2070.1 and 3995.6 pounds per hour, respectively,         in 2012 and 2013. The commenters also                 the Agency does not consider it
                                                on a 24-hour rolling average basis. See SIP section      noted that SCR has been successfully
                                                7.4.2, p. 74.
                                                   6 See 40 CFR 51.308(f) requirements for               used at Oak Grove Units 1 and 2 and                     7 February 27, 2012 letter from Ken Jeffers,

                                                comprehensive periodic revisions of                      Sandow Unit 4, which burn Texas                       Johnson Matthey to Callie Videtich, EPA Region 8.
                                                implementation plans for regional haze.                  lignite. While there was very little                  See docket EPA–R08–OAR–2010–0406–0322.



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                                                                 Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations                                                8553

                                                appropriate to perpetually restart the                   Mathey offer is interesting, it is hardly             In-Furnace Injection (TIFI) technology,
                                                BART rulemaking process to consider                      decisive. Considering the abundance of                respectively, allow these units to
                                                late-breaking technological                              information that was already in the                   achieve emission limits much lower
                                                developments, or else we would seldom                    BACT record in December 2011, it is                   than the BART emission limit
                                                be able to finalize an action.                           unlikely that the court would have                    previously approved by EPA. The
                                                   Accordingly, under the facts present                  reached a different conclusion based                  commenters also suggested that
                                                here, and in light of the district court’s               only on the addition of the Johnson                   PerNOxide 11 and hybrid SCR–SNCR are
                                                Minnkota decision, in our judgment                       Matthey offer, particularly in light of the           other feasible technology options that
                                                there is no need to alter our decision in                fact that two other equally reputable                 should be considered to improve on the
                                                light of these recent developments.                      vendors would not provide guarantees.                 performance of NOX emissions controls
                                                   Comment: Commenters stated that                       As noted in our BART Guidelines, ‘‘we                 at MRYS and LOS. Commenters assert
                                                EPA should consider a performance                        do not consider a vendor guarantee                    that if EPA had a valid basis for
                                                guarantee for SCR catalysts on units                     alone to be sufficient justification that a           rejecting conventional SCR as BART, it
                                                burning North Dakota lignite provided                    control option will work.’’ Id. 40 CFR                would have to consider the emission
                                                by Johnson Matthey Catalysts, LLC.                       part 51, appendix Y, section IV.D,                    reductions that SNCR can achieve in
                                                Commenters argued that since the                         step 2.                                               conjunction with other cost-effective
                                                district court relied heavily on the                        Accordingly, based on the unique                   controls.
                                                absence of vendor guarantees in                          circumstances here, and taking into                      Response: CyClean and TIFI were not
                                                upholding the State’s determination of                   consideration the district court’s                    identified as technically feasible NOX
                                                technical infeasibility, EPA cannot rely                 decision, we are affirming our approval               control options in the State’s SIP. Nor
                                                on the court’s reasoning since a                         of the State’s MRYS and LOS BART                      were they the subject of comments
                                                guarantee is now available.                              decisions, which are based on a recent                during EPA’s review, and ultimate
                                                   Response: Regardless of EPA’s                         BACT decision. In finalizing our                      approval, of the BART determinations
                                                position on the technical feasibility of                 approval, we note that North Dakota                   for MRYS and LOS. As detailed above
                                                SCR for MRYS Units 1 and 2 and LOS                       provided an explanation for its                       in response to another comment, EPA is
                                                Unit 2, we acknowledge that throughout                   conclusions that a federal court found                assessing the reasonableness of the
                                                the development of the BACT and                          reasonable. We will continue to foster                State’s determination based on the
                                                BART determinations for these units,                     efforts among the interested parties for              record before the State at the time.
                                                other parties contested the feasibility of               additional testing to resolve any                     Accordingly, we do not find that a
                                                SCR on these high-temperature cyclone                    outstanding uncertainty regarding the                 review of these technologies is
                                                boiler units burning high-sodium North                   feasibility of SCR technology for these               appropriate for this reconsideration
                                                Dakota lignite. The State gave great                     units. In a December 20, 2011 letter,10               action. Moreover, we note that these
                                                weight to the fact that it did not receive               North Dakota expressed openness to                    technologies are intended primarily to
                                                any catalyst vendor guarantees. As                       continuing discussions with EPA                       provide operational benefits, such as
                                                noted by commenters on our                               concerning further testing and                        improved efficiency and reduced
                                                reconsideration action, however, no                      evaluation of SCR technology involving                slagging and fouling, and that NOX
                                                catalyst vendors have stated that SCR                    North Dakota lignite coal. Such testing               emissions reductions are only
                                                would be technically infeasible at these                 in the field would analyze the technical              sometimes a co-benefit of these
                                                units,8 and one (Johnson Matthey                         feasibility of SCR for North Dakota                   operational changes. In particular, there
                                                Catalysts, LLC) would offer ‘‘SCR                        lignite at these cyclone units in a low-              is some question whether CyClean at
                                                catalyst designs with reasonable                         dust or tail-end configuration. The                   MRYS is consistently effective in
                                                operating lifetime performance                           existing installation of SNCR should not              reducing NOx emissions.12
                                                guarantees for service in a low-dust or                  preclude such efforts. We acknowledge                    Furthermore, as the commenters point
                                                tail-end SCR configuration’’ 9 absent                    that in a subsequent letter on July 18,               out, PerNOxide was not commercially
                                                additional field testing. Most of this                   2014, North Dakota stated that based on               available at the time of the BACT or
                                                information, with the exception of the                   the Minnkota Power ruling it no longer                BART determinations. It would
                                                Johnson Matthey offer, was in the BACT                   believes testing is a reasonable                      therefore not be reasonable for EPA to
                                                record and thus was before the court at                  approach. However, technological                      now disapprove the SIP in this
                                                the time of the December 21, 2011 court                  advances elsewhere may yet provide                    reconsideration on the basis that the
                                                decision. And while the Johnson                          compelling information to drive further               State did not select the PerNOxide
                                                                                                         testing on North Dakota lignite or negate             technology. It may, however, be
                                                  8 Two companies, Haldor Topsoe, Inc. and
                                                                                                         the need for such testing. As noted                   appropriate for North Dakota to consider
                                                CERAM Environmental, Inc. would require pilot-
                                                scale testing in order to offer any guarantee
                                                                                                         above, we expect that North Dakota will               this technology in the next planning
                                                regarding SCR catalyst life. See SIP Appendix C.4        reassess the technical feasibility of SCR             period as a reasonable progress measure.
                                                (EPA–R08–OAR–2010–0406–0013, pdf pp. 388 and             controls at these plants as part of a                    Regarding hybrid SCR–SNCR, this
                                                p. 392), January 13, 2010 letter from Wayne Jones        future reasonable progress analysis.
                                                to Robert Blakley, and January 13, 2010 email from                                                             technology too was not previously
                                                Noel Rosha, CERAM to Robert Blakley. Another             B. Comments on Emission Limits for
                                                vendor, Alstom Power, stated that despite many           SNCR                                                    11 PerNOxide is a technology involving a two-step

                                                challenges a properly designed system fueled by                                                                process. Hydrogen peroxide is injected between the
                                                North Dakota lignite could employ SCR. See SIP              Comment: Commenters stated that                    economizer and air preheater to oxidize nitrogen
                                                Appendix C.4 (EPA–R08–OAR–2010–0406–0011,                MRYS and LOS can achieve more                         oxide in flue gas to nitrogen dioxide and higher-
                                                pdf p. 159), May 30, 2007 letter from Michael G.                                                               order oxides. These oxides are then removed in
                                                                                                         stringent emission limits with SNCR
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                                                Phillips, Alstom, to Robert Blakley, Burns and                                                                 downstream wet scrubbers, such as those installed
                                                McDonnell. In our view this statement was so             and ASOFA than those approved by                      on MRYS and LOS. See docket EPA–R08–OAR–
                                                overlaid with conditions and qualifications that it      EPA. The commenters assert that, in                   2010–0406–0415, attachment 3, Technical
                                                was not unreasonable for the State to choose not to      combination with SNCR and ASOFA,                      Comments of Bill Powers, P.E. 2013–06–17, p. 30.
                                                rely on it.                                                                                                      12 Prairie Public News, Minnkota says new
                                                  9 The Johnson Matthey offer came after the close
                                                                                                         technologies currently in use at MRYS
                                                                                                                                                               method of reducing emissions ‘promising,’ Dave
                                                of the State’s comment period and thus was not           and LOS, namely CyClean and Targeted                  Thompson, August 12, 2013. http://
                                                available to the State when it made its BACT and                                                               news.prairiepublic.org/post/minnkota-says-new-
                                                BART decisions.                                            10 See   docket EPA–R08–OAR–2010–0406–0364.         method-reducing-emissions-promising.



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                                                8554             Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations

                                                identified, and so its review is not                     located within about 40 miles of one                   TIFI may affect the amount of catalyst
                                                appropriate for this reconsideration                     another and produce lignite coals of                   poisons in the ash, or any other
                                                action. Even so, there is no evidence                    similar quality.                                       parameter, that relates to SCR
                                                that the technical feasibility of hybrid                    Regarding catalyst poisons, the                     feasibility.
                                                SCR–SNCR in relation to catalyst                         commenters cited average amounts of                       In short, the commenters have not
                                                poisons would be any greater than that                   sodium and potassium oxides in the                     identified any critical differences
                                                of conventional SCR. This is                             MRYS ash of 5.6% and 1.0%,                             between the coal fired at LOS and that
                                                particularly true because in the hybrid                  respectively.13 Similarly, the                         fired at MRYS as it pertains to the
                                                system, in order to take advantage of the                commenters cited average amounts of                    technical feasibility of SCR as assessed
                                                ammonia slip from the SNCR, the in-                      sodium and potassium oxides in the                     by the State. To the extent that
                                                duct SCR is located in the high-dust                     LOS ash of 2.94% and 0.73%,                            differences do exist, the commenters
                                                position, where it is most vulnerable to                 respectively.14 However, the sodium                    have not shown that these differences
                                                catalyst poisoning. We also note that the                and potassium oxides amounts in the                    are extensive enough to alter the
                                                installation of the SCR–SNCR                             LOS ash given in the State’s SIP, 7.55%                assessment of SCR feasibility at LOS. If,
                                                technology is rare, and we are not aware                 and 1.20%, respectively,15 are higher                  as found by the district court, it was
                                                of any cyclone boilers that are currently                than that suggested by the commenters,                 reasonable for the State to conclude that
                                                employing this technology.                               and even higher than that for MRYS,                    catalyst poisons in the ash at MRYS
                                                                                                         thus undermining the commenters’                       cause SCR to be technically infeasible,
                                                C. Comments on Application of MRYS                       argument that there is a critical                      then undoubtedly the same reasoning
                                                BACT Court Ruling to Other Units                         difference in the amount of catalyst                   extends to LOS, where the State’s SIP
                                                1. Application of MRYS BACT to LOS                       poisons involved.                                      record indicates that even higher
                                                Unit 2                                                      On the matter of the ability of LOS to              amounts of poisons were present.
                                                                                                         co-fire PRB sub-bituminous coal, though
                                                   Comment: Commenters argued that                       PRB coal does contain lesser amounts of                2. Application of MRYS BACT to Coyote
                                                the BACT limits for MRYS units should                    catalyst poisons, there is no evidence                    Comment: One commenter stated that
                                                not apply to LOS Unit 2. The                             that it has been, or will be, fired in                 EPA should conduct additional
                                                commenters highlighted their                             quantities significant enough to alter                 evaluation of NOX emissions for Coyote
                                                disagreement with EPA’s position as                      North Dakota’s determination of the                    Station. The commenter noted that
                                                stated in the final rule, ‘‘it [LOS] is the              feasibility of SCR at LOS. As noted in                 because Coyote is equipped with a lime
                                                same type of boiler burning North                        comments submitted by NDDH, the                        spray dryer and fabric filter, even fewer
                                                Dakota lignite coal [as MRYS], and                       amount of PRB coal fired at LOS                        fine aerosol particles, including sodium
                                                North Dakota’s views regarding                           averaged 11.3% between 2003 and 2012,                  fumes, would be emitted into a potential
                                                technical infeasibility that the U.S.                    with a minimum of 6.5% in 2004 and                     tail-end SCR, and the potential for
                                                district court upheld in the MRYS                        a maximum of 16.5% in 2005. These                      catalyst poisoning would be even less
                                                BACT case apply to it as well.’’ 78 FR                   levels of PRB coal would only                          than for LOS and MRYS. The
                                                16455. The commenters contended that                     marginally lower the amount of catalyst                commenter argued that EPA based its
                                                EPA cannot rely on the BACT                              poisons in the fuel fired at LOS. Also,                conclusion in favor of approving the
                                                determination for MRYS to determine                      when considering this ten-year history,                State’s selection of only SNCR for
                                                BART for LOS Unit 2 given critical                       there is no indication that the                        Coyote on the incorrect premise that
                                                differences between the two facilities.                  percentage of PRB coal burned at LOS                   Coyote is so similar to LOS and MRYS
                                                The commenters claimed that these                        is trending upward. Indeed, the highest                that the BACT decision for MRYS
                                                critical differences include the facts that              proportion of PRB coal burned at LOS                   supersedes a determination of what
                                                LOS Unit 2 co-fires Powder River Basin                   occurred in 2005. In addition, because                 appropriate controls would be under the
                                                (PRB) coal and lignite coal with lesser                  MRYS and LOS are of similar design,                    reasonable progress provisions of the
                                                amounts of alleged SCR catalyst                          there is no reason to conclude that the                regional haze rule.
                                                poisons; has been increasing the amount                  ability to co-fire PRB coal is wholly                     Response: This comment is outside
                                                of PRB coal that it fires over time; can                 unique to LOS. That is, the ability of                 the scope of this reconsideration action,
                                                be modified to fire even greater                         LOS to burn PRB coal does not present                  as it pertains to a facility other than
                                                quantities of PRB coal, up to 100%,                      a critical difference between the units.               MRYS or LOS.
                                                completely eliminating the lignite fuel                     Finally, the commenters have not
                                                quality claims; and, unlike MRYS, is                     established how the application of TIFI                D. Comments on Visibility Benefits
                                                equipped with TIFI to reduce slagging                    is pertinent in relation to SCR                          Comment: We received several
                                                and NOX emissions.                                       feasibility. The commenters do not                     comments discussing the greater
                                                   Response: EPA disagrees that there                    present any evidence regarding how                     visibility benefit of SCR compared to
                                                are critical differences between the units                                                                      SNCR and asserting that this justified
                                                in question at MRYS and LOS that                           13 North Dakota Department of Health,
                                                                                                                                                                disapproving the State’s BART
                                                would have a material bearing on the                     Preliminary Best Available Control Technology          determinations for SNCR at MRYS Units
                                                                                                         Determination for Control of Nitrogen Oxides for
                                                technical feasibility of SCR. These units                M.R. Young Station Units 1 and 2, Table 1, page 18,    1 and 2 and LOS Unit 2.
                                                have much in common. They are of the                     June 2008, SIP Amendment No. 1. See docket EPA–          Response: As noted in other
                                                same design (cyclone firing) and similar                 R08–OAR–2010–0406–0039.                                responses, technical comments
                                                size (in particular, MRYS Unit 2 at 517                    14 Les Allery et al., Demonstrated Performance
                                                                                                                                                                addressing the merits of SCR over SNCR
                                                MW and LOS Unit 2 at 440 MW). MRYS                       Improvements on Large Lignite-Fired Boiler with        are essentially irrelevant since we are
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                                                                                                         Targeted In-Furnace Injection Technology at 7,
                                                and LOS both burn primarily North                        presented at COAL–GEN 2010, Aug. 10–12, 2010,          basing our decision on the fact that the
                                                Dakota lignite coal, which produces ash                  Pittsburg, PA, available at http://www.ftek.com/       State’s BART determination is
                                                high in catalyst poisons (principally,                   media/en-US/pdfs/TPP-592.pdf. See docket EPA–          supported by its BACT determination
                                                sodium and potassium oxides). While                      R08–OAR–2010–0406–0419, attachment 6.                  for MRYS, and on our view that it is
                                                                                                           15 SIP, Appendix C.1, BART Determination Study
                                                MRYS burns lignite coal from the Center                  for Leland Olds Station Unit 1 and 2, Basin Electric
                                                                                                                                                                appropriate to consider a federal court’s
                                                Mine, and LOS burns lignite coal from                    Power Cooperative, Final Draft, Table 1.2–2—Coal       ruling on our challenge to the State’s
                                                the Freedom Mine, these mines are                        Parameters, p. 8.                                      BACT determination. We nonetheless


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                                                                 Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations                                                 8555

                                                agree with commenters that SCR is a                      the BART Guidelines, we do not reach                  addition to the information the State
                                                more effective control technology for                    the issue of visibility impacts.                      submitted in SIP Amendment No. 1 and
                                                achieving visibility benefit, and we also                                                                      the State’s comments on our
                                                                                                         E. Comments on Legal Issues
                                                acknowledge that in conducting                                                                                 reconsideration action, we view the
                                                modeling according to its visibility                     1. BACT Versus BART Determinations                    State’s BART determinations as a
                                                modeling protocol, North Dakota                             Comment: One commenter supporting                  rejection of SCR on grounds of technical
                                                considered the visibility benefit of SCR                 our proposal stated that it would be                  feasibility rather than low visibility
                                                in an incorrect manner.16 However, as                    incongruous to make BART more                         benefits. Accordingly, the visibility
                                                clarified by the State’s comments                        stringent than BACT at the same facility.             factor in the BART analysis does not
                                                submitted for this reconsideration                       The commenter went on to assert that                  affect the outcome here.19
                                                action,17 the State’s BART                               the procedures set forth in the New                      Comment: One commenter noted that
                                                determination was based on its recent                    Source Review (NSR) Manual and BART                   the BART Guidelines do not
                                                BACT decision for MRYS and its                           Guidelines result in BART                             automatically authorize reliance on a
                                                conclusions that SCR is not technically                  determinations that are less stringent                BACT limit. The commenter stated that
                                                feasible due to unique design                            than BACT. The commenter noted that                   where there is any indication that the
                                                characteristics at these units. The State                unlike the NSR Manual, the BART                       BACT limit is outdated or does not
                                                rejected SCR on technical feasibility                    Guidelines do not call for a top-down                 reflect the best available controls, it
                                                grounds rather than on the degree of                     analysis. Therefore, according to the                 cannot substitute for BART. It is
                                                visibility improvement, making North                     commenter, in its BART analysis North                 uncontested that SCR has the highest
                                                Dakota’s erroneous visibility benefit                    Dakota is not required to select the most             control efficiency of all control options.
                                                analysis irrelevant. In any case, because                effective control technology that has not             Thus, the commenter argued that SCR is
                                                technically infeasible control options                   been eliminated. Instead, North Dakota                indisputably the best, most stringent
                                                are eliminated from further analysis in                  has ‘‘discretion to determine the order               control, and EPA cannot settle for less
                                                the BART determination process, any                      in which [it] should evaluate control                 under the CAA or the implementing
                                                consideration of the visibility benefits of              options for BART,’’ and must provide a                BART Guidelines.
                                                SCR is precluded.                                        justification for the technology it selects              Response: As discussed previously,
                                                                                                         as ‘‘best.’’ 40 CFR 51, appendix Y,                   EPA agrees that BART analyses should
                                                   Comment: The National Park Service                                                                          not rely on outdated determinations
                                                (NPS) noted that EPA only discussed                      section IV.E.2. The commenter believes
                                                                                                         that because North Dakota has                         reached under other CAA standards, but
                                                visibility impacts and improvements at                                                                         we also do not consider it appropriate
                                                Theodore Roosevelt National Park                         discretion to select something other
                                                                                                         than the technology that achieves the                 to perpetually restart the BART
                                                (North Dakota) in the BART analyses                                                                            rulemaking process to consider late-
                                                and should have also included two                        greatest reduction in emissions, and can
                                                                                                         forego a control technology based on a                breaking technological developments.
                                                other Class I areas, Medicine Lake                                                                             Here, the State could reasonably assert
                                                Wilderness (Montana) and Lostwood                        lack of visibility improvement, BART
                                                                                                         controls are less stringent than BACT                 that at the time of its BART
                                                Wilderness Area (North Dakota), as                                                                             determination, no material new
                                                these areas are also within 300 km of                    controls.
                                                                                                            Another commenter challenging our                  technologies would have arisen since its
                                                MRYS and LOS. The NPS stated that it                                                                           BACT determination. In light of the
                                                                                                         proposal stated that a BACT decision,
                                                was impossible to determine whether or                                                                         Minnkota Power court’s finding that the
                                                                                                         which does not consider the degree of
                                                how EPA considered impacts at the                                                                              state reached a reasonable conclusion,
                                                                                                         visibility improvement, cannot
                                                other two Class I areas, and that it is                                                                        the Agency does not believe it
                                                                                                         substitute for BART.
                                                appropriate to consider both the degree                     Response: We acknowledge that in                   appropriate to disregard the BACT
                                                of visibility improvement in a given                     many instances BACT determinations                    determination and require SCR.
                                                Class I area as well as the cumulative                   will be more stringent than BART                         Comment: One commenter argued
                                                effects of improving visibility across all               determinations, or identical to them.                 that the court never addressed the
                                                of the Class I areas affected. The NPS                   However, there are exceptions. First, the             question of whether EPA’s own BACT
                                                also noted that EPA did not mention the                  timing of the determinations,                         analysis was itself reasonable, let alone
                                                visibility impacts at Medicine Lake in                   particularly in regard to when a control              more persuasive than North Dakota’s
                                                either the Federal Register notice or in                 technology becomes commercially                       conclusions regarding feasibility. The
                                                the Technical Support Document.                          available, may yield different BART and               commenter stated that similarly, the
                                                   Response: The commenter’s concern                     BACT determinations. Secondly, the                    court did not consider many of EPA’s
                                                is immaterial in this instance. The                      degree of visibility improvement, a                   reasons for concluding that SCR is a
                                                technical feasibility review precedes the                factor considered under BART but not                  feasible technology that should be
                                                analysis of visibility impacts in the                    BACT, might result in different                       designated as BART. Nor did the court
                                                review process. Since our                                determinations.                                       address EPA’s view that vendor
                                                reconsideration action applies only to                      We disagree in this particular                     willingness or unwillingness to provide
                                                MRYS Units 1 and 2 and LOS Unit 2,                       situation that the predicted visibility               a catalyst life guarantee had no relation
                                                where the State selected what it                         benefits attributable to SCR at MRYS                  to whether SCR was commercially
                                                determined to be the most stringent                      and LOS were small enough, as a sole                  available or feasible but rather related to
                                                technically feasible control option,18 per               consideration, to have justified the
                                                                                                                                                                 19 In making BART determinations, section
                                                                                                         selection of SNCR over SCR. The State’s
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                                                                                                                                                               169A(g)(2) of the CAA requires that states consider
                                                  16 North  Dakota also conducted modeling               own modeling identified greater                       the following factors: (1) The costs of compliance;
                                                according to the BART Guidelines, which provides         visibility benefits when comparing SCR                (2) the energy and non-air quality environmental
                                                the visibility benefit information that EPA used in      over SNCR of more than 0.5 deciviews                  impacts of compliance; (3) any existing pollution
                                                our original proposal analyses.                                                                                control technology in use at the source; (4) the
                                                  17 See docket EPA–R08–OAR–2010–0406–0418.
                                                                                                         per unit at the highest impacted Class I
                                                                                                                                                               remaining useful life of the source; and (5) the
                                                  18 Since SCR is eliminated from consideration          area, Theodore Roosevelt National Park.               degree of improvement in visibility which may
                                                based on technical infeasibility, SNCR becomes the       However, taking into consideration the                reasonably be anticipated to result from the use of
                                                most stringent technically feasible control option.      December 21, 2011 court decision, in                  such technology.



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                                                8556             Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations

                                                the cost of using SCR according to the                   BART requirements for either MRYS or                     Comment: Commenters stated that
                                                commenter.                                               LOS since it contains an emissions limit              EPA did not consider non-air quality
                                                  Response: Giving appropriate                           higher than presumptive BART, and                     benefits in rejecting a presumptive NOX
                                                consideration to the district court’s                    EPA has not conducted a five-factor                   BART limit of 0.10 lb/MMBtu or lower,
                                                decision does not depend on whether                      BART analysis justifying an emission                  which is based on installation of SCR
                                                the court addressed every potential                      limit above presumptive BART. The                     for cyclone boilers. The commenters
                                                argument that EPA made or could have                     BART Guidelines provide that                          noted that impacts are much more
                                                made based on the record of that case.                   presumptive BART for all lignite-fired                severe with SNCR than SCR as much
                                                Minnkota Power remains a final                           cyclone boilers is a NOX emissions limit              more ammonia is used and released.
                                                decision of a federal court with                         of 0.10 lb/MMBtu, based upon the                      The commenters list non-air-quality
                                                jurisdiction over the subject matter                     installation of SCR control technology.               impacts regarding transportation,
                                                before it, a ruling that addressed issues                40 CFR 51, appendix Y, section IV.E.5.                storage and use of ammonia including
                                                relevant to this action. Further, as                     The commenters note that EPA                          safety concerns, and potential fly ash
                                                discussed above, EPA finds it                            specifically evaluated the use of SCR on              contamination in addition to potential
                                                appropriate to look to North Dakota’s                    both MRYS and LOS in determining the                  visibility impacts of emissions of
                                                recent BACT determination as                             presumptive NOX BART level and                        unreacted ammonia (‘‘ammonia slip’’)
                                                indicative of the appropriate BART                       found it feasible and cost effective.20               that offset the claimed visibility
                                                outcome in this matter.                                  The commenters argued that EPA has                    improvement by SNCR compared to
                                                  Comment: One commenter stated that                     not refuted the presumptive                           SCR.
                                                EPA’s BART determination is entitled to                  determination in this case.                              Response: We disagree with the
                                                deference and evaluated under a                                                                                commenters. They asserted that the
                                                different standard of review than that                      Response: We disagree with the                     ammonia slip from SNCR would be
                                                applicable to the district court in the                  commenters. EPA is reaffirming our                    greater than from SCR, but this
                                                Minnkota Power case. The commenter                       approval of three BART determinations                 difference is not pertinent because SCR
                                                noted that EPA is not bound by                           that included five-factor analyses                    was eliminated from consideration
                                                Minnkota Power given EPA’s authority                     conducted by the State of North Dakota                based on technical infeasibility. (As
                                                when making BART determinations                          for MRYS Units 1 and 2 and LOS Unit                   discussed in our responses elsewhere,
                                                under a FIP, or ensuring that a state’s                  2. Thus, it was not necessary for EPA to              in approving BART determinations that
                                                submission complies with the CAA, and                    conduct its own five-factor analyses or               are above the presumptive limit at
                                                the deference given to those decisions.                  to refute the EPA analysis done in 2005               MRYS and LOS, EPA has taken into
                                                While the definition of technical                        in support of the development of the                  consideration North Dakota’s five-factor
                                                feasibility is substantially the same for                NOX presumptive limits. The emissions                 analyses, the State’s reliance on a recent
                                                the BACT and BART programs, the legal                    limits for SNCR in the State’s analyses               BACT determination, and a federal
                                                standard that governed the district                      were based on a careful consideration of              court ruling that addressed issues
                                                court’s review of North Dakota’s BACT                    the statutory factors. While EPA did not              relevant to this action.) The commenters
                                                decision is not the same legal standard                  agree with all aspects of the State’s                 did not assert that SNCR should be
                                                that applies to review of EPA’s decision                 analyses, the deciding factor was that of             eliminated from consideration based on
                                                in promulgating a FIP or reviewing the                   technical feasibility. As discussed in the            ammonia slip. With SCR an unavailable
                                                adequacy of a state regional haze plan,                  ‘‘Basis for Today’s Final Action’’ section            option, SNCR is the most stringent
                                                such that the district court decision                    above, there are two principles from our              technically feasible control option, and
                                                cannot govern here according to the                      BART Guidelines that are relevant to                  a comparison of the non-air-quality
                                                commenter.                                               this situation. The first is that as part of          impacts between the eliminated
                                                  Response: EPA does not view                            a BART analysis, states may eliminate                 technology (SCR) and the remaining
                                                Minnkota Power as directly governing                     technically infeasible control options                most stringent technology (SNCR) is
                                                the outcome of this matter, but the                      from further review. The second is that               immaterial.
                                                Agency has taken into consideration                      states generally may rely on a recent
                                                this federal court ruling in assessing                   BACT determination for a source for                   3. Collateral Estoppel
                                                North Dakota’s BART determinations for                   purposes of determining BART for that                    Comment: Commenters expressed
                                                MRYS and LOS. In reviewing the State’s                   source. North Dakota’s BART                           differing opinions on whether collateral
                                                determinations, EPA considered                           determination for MRYS was developed                  estoppel binds EPA to the Minnkota
                                                whether North Dakota acted reasonably.                   at approximately the same time as its                 Power decision. The doctrine of
                                                The decision in Minnkota Power was                       BACT determination for this facility,                 collateral estoppel, also known as issue
                                                one factor EPA took into account in                      and was upheld by a U.S. district court.              preclusion, provides that ‘‘once a court
                                                deciding not to disapprove North                         EPA finds it appropriate to approve the               has decided an issue of fact or law
                                                Dakota’s SIP. As noted above, this was                   emissions limits for SNCR (above the                  necessary to its judgment that decision
                                                not the only factor. EPA also took into                  presumptive emissions limits of 0.10 lb/              may preclude relitigation of the issue in
                                                account the BART Guidelines and North                    MMBtu for lignite-fired cyclone boilers,              a suit on a different cause of action
                                                Dakota’s contemporaneous BACT                            based upon installation of SCR control                involving a party to the first case.’’ Air
                                                determination. We agree that different                   technology) predicated on the State’s                 Line Pilots Ass’n Int’l v. Trans States
                                                legal standards govern the district                      analyses and its determination that SCR               Airlines, 638 F.3d 572, 579 (8th Cir.
                                                court’s review of North Dakota’s BACT                    is eliminated from consideration based                2011) (citations and punctuation
                                                determination and EPA’s review of its                    upon grounds of technical infeasibility.              omitted); see also Parklane Hosiery Co.
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                                                decision regarding the adequacy of the                                                                         v. Shore, 439 U.S. 322, 326 (1979).
                                                SIP.                                                       20 See EPA, Technical Support Document:                Response: Collateral estoppel does not
                                                                                                         Methodology for Developing BART NOX                   govern EPA’s decision in this matter.
                                                2. Consideration of the Presumptive                      Presumptive Limits (June 15, 2005), docket EPA–       The district court in Minnkota Power
                                                NOX BART Emissions Limit                                 R08–OAR–2010–0406–0092; Technical Support
                                                                                                                                                               decided the case under a standard of
                                                                                                         Document for BART NOX Limits for Electric
                                                   Comment: Commenters stated that the                   Generating Units Excel Spreadsheet (June 15, 2005),   review outlined in a consent decree that
                                                BACT determination does not fulfill                      docket EPA–HQ–OAR–2002–0076–0446.                     settled an enforcement matter. Under


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                                                                 Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations                                         8557

                                                the standard derived from the                            rationale for and the reasonableness of               limit the relevant scope of comments,
                                                enforcement consent decree, EPA had                      states’ underlying decisions.                         other than requiring that they address
                                                the burden of proving that the State’s                                                                         one or more of these units.
                                                                                                         5. Scope of Reconsideration Action
                                                BACT determination was unreasonable.
                                                                                                            Comment: One commenter stated that                 F. Comments Generally in Favor of Our
                                                On the other hand, when courts review                                                                          Proposal
                                                EPA action on a state’s BART                             there was no need to grant petitioners
                                                determination, an altogether different                   an opportunity to comment on the                        Comment: We received more than
                                                standard applies: courts defer to EPA’s                  Minnkota Power ruling because EPA                     1,200 comment letters in support of our
                                                technical expertise, and the petitioning                 had no choice but to follow it.                       rulemaking from concerned citizens and
                                                party must show that EPA’s action was                       Response: We disagree that EPA had                 members representing rural power
                                                arbitrary and capricious. Thus, because                  no choice but to follow the Minnkota                  cooperatives. These comments were
                                                EPA had a much higher burden of proof                    Power ruling. Section 307(d)(7)(B) of the             received at the public hearings in
                                                in the district court than it would have                 CAA prohibits a party from seeking                    Bismarck, North Dakota, by internet,
                                                on review of a SIP approval, collateral                  judicial review of objections to a rule               and through the mail. Each of these
                                                estoppel does not apply here. ‘‘Failure                  that were not raised with reasonable                  commenters was generally in favor of
                                                of one party to carry the burden of                      specificity during the comment period.                our proposed decision to approve North
                                                persuasion on an issue should not                        The CAA provides a two-part exception                 Dakota’s NOX BART determinations for
                                                establish the issue in favor of an                       to this general ban on judicial review of             MRYS Units 1 and 2 and LOS Unit 2.
                                                adversary who otherwise would have                       newly raised objections. The EPA                      These comments generally stated that
                                                the burden of persuasion on that issue                   Administrator must convene a                          SCR is an unproven technology for these
                                                in later litigation.’’ 18 C. Wright, A.                  reconsideration proceeding if the                     type of units and would not noticeably
                                                                                                         petitioner can demonstrate that:                      improve visibility. They also expressed
                                                Miller & E. Cooper, Federal Practice and
                                                                                                            1. It was impracticable to raise such              concern about increasing electricity
                                                Procedure § 4422 at 592 (2002), quoted
                                                                                                         an objection during the comment period                costs.
                                                in Cobb v. Pozzi, 352 F.3d 79, 101–102                   or the information became available
                                                (2d Cir. N.Y. 2003).                                                                                             Response: We acknowledge these
                                                                                                         after the period for public comment; and              general comments that supported our
                                                   As to LOS Unit 2, an additional                          2. The objection is of central                     proposed action. While we disagree
                                                reason that EPA is not collaterally                      relevance to the outcome of the rule.                 with some of the commenters’ reasoning
                                                estopped with respect to this action is                  The significant consideration that EPA                on the points of technical feasibility,
                                                that Minnkota Power only involved                        has given to the district court decision,             visibility benefits, and cost, these points
                                                MRYS, not LOS. Because the case did                      which was made 30 days after the close                are largely no longer relevant, because
                                                not specifically address the latter                      of our public comment period, meets                   we have decided to finalize our
                                                station, collateral estoppel cannot be                   the criteria for convening a                          approval of North Dakota’s NOX BART
                                                invoked with respect to it. For these                    reconsideration proceeding.                           determinations for MRYS Units 1 and 2
                                                reasons, the Agency’s decision in this                      Further, the premise of the comment                and LOS Unit 2 on grounds explained
                                                proceeding is not constrained by the                     is incorrect. The comment is built on an              elsewhere.
                                                district court’s Minnkota Power                          assertion that EPA had ‘‘no choice’’ but
                                                decision. That is not to say, however,                   to follow the Minnkota Power holding.                 G. Comments Generally Against Our
                                                that the district court’s decision is                    For the Agency to have no choice, either              Proposal
                                                irrelevant. Minnkota Power remains a                     collateral estoppel or res judicata would               Comment: We received over 650
                                                final decision of a federal court with                   have to apply. Neither doctrine does.                 comment letters that urged us to require
                                                jurisdiction over the subject matter                     The district court in Minnkota Power                  SCR at MRYS Units 1 and 2 and LOS
                                                before it, a ruling that addressed some                  decided the case under a standard of                  Unit 2 based on our original rigorous
                                                issues relevant to this action. EPA has                  review outlined in a consent decree that              technical analyses that showed SCR was
                                                reviewed and considered the court’s                      settled an enforcement matter. There is               cost effective and a commonly used
                                                opinion, and views it as relevant to but                 no possibility of res judicata, because               technology with more than 400 plants
                                                not decisive of the questions presented                  EPA’s regional haze rulemaking action                 using the technology in the United
                                                in this matter.                                          was not before the court for decision.                States. Commenters stated that SCR
                                                   Finally, although EPA does not agree                  And as described above, EPA’s action in               technology would reduce pollution by
                                                that collateral estoppel applies here, our               this proceeding is not constrained by                 90% at these plants. Some commenters
                                                final action is the same as if we had                    collateral estoppel based on Minnkota                 generally requested that EPA lower the
                                                accepted as persuasive the comments                      Power. Therefore, there is no reason to               emission limits for LOS Unit 1. Some
                                                asserting that it does.                                  conclude that the Minnkota Power                      commenters also generally discussed
                                                4. EPA Versus State Authority                            decision left EPA ‘‘no choice’’ with                  health effects and health costs related to
                                                                                                         respect to this rulemaking action.                    regional haze pollutants. Some
                                                  Comment: Several commenters in                            Comment: One commenter stated that                 commenters also stated that rapid oil
                                                supporting our proposal highlighted                      issues involving the technical                        and gas development makes it more
                                                that in approving the State’s BART                       feasibility, cost effectiveness, and                  critical to install the best pollution
                                                determinations, EPA appropriately                        visibility impact of potential control                controls at these plants.
                                                respected the State of North Dakota’s                    technologies are beyond the scope of                    Response: Because we have decided
                                                statutory role in establishing BART                      this reconsideration action.                          to finalize our approval of North
                                                limits and implied that EPA lacked                          Response: EPA initiated the                        Dakota’s NOX BART determinations for
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                                                authority to pursue another course.                      reconsideration of our final rule based               MRYS Units 1 and 2 and LOS Unit 2 on
                                                  Response: Courts have rejected state                   on our approval of the State’s NOX                    the grounds explained elsewhere in this
                                                primacy arguments in several rulings                     BART determination and limits for                     document, it would not be appropriate
                                                that have occurred since the close of                    MRYS Units 1 and 2 and LOS Unit 2.                    to require SCR solely based on our
                                                EPA’s public comment period for this                     At the time of our proposed                           original technical analyses.
                                                action. EPA’s role in regional haze                      reconsideration, to allow for broad                     We appreciate the commenters’
                                                planning includes examining the                          public comment, we decided not to                     concerns regarding the negative health


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                                                8558             Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations

                                                impacts of pollutants that contribute to                 requirements for two sources in North                 G. Executive Order 13211: Actions
                                                regional haze. We agree that these                       Dakota. The action merely approves                    Concerning Regulations That
                                                pollutants can have effects on human                     state law as meeting federal                          Significantly Affect Energy Supply,
                                                health, but such effects are not taken                   requirements and imposes no additional                Distribution, or Use
                                                into account in setting BART limits                      requirements beyond those imposed by                    This action is not subject to Executive
                                                under the regional haze program. The                     state law. We have therefore concluded                Order 13211, because it is not a
                                                next phase of the regional haze program                  that this action will have no net                     significant regulatory action under
                                                will, as appropriate, lead to further                    regulatory burden for all directly                    Executive Order 12866.
                                                emission reductions.                                     regulated small entities.
                                                   Regarding the commenters’ concerns                                                                          H. National Technology Transfer and
                                                about rapid oil and gas development in                   Unfunded Mandates Reform Act                          Advancement Act
                                                North Dakota, while that is beyond the                                                                           This rulemaking does not involve
                                                scope of this reconsideration action,                       This action does not contain any                   technical standards.
                                                EPA will be closely reviewing North                      unfunded mandate as described in the
                                                                                                         Unfunded Mandates Reform Act, 2                       I. Executive Order 12898: Federal
                                                Dakota’s plans in future planning
                                                                                                         U.S.C. 1531–1538, and does not                        Actions To Address Environmental
                                                periods regarding potential impacts
                                                                                                         significantly or uniquely affect small                Justice in Minority Populations and
                                                from oil and gas development as well as
                                                                                                         governments. The action imposes no                    Low-Income Populations
                                                other anthropogenic emissions on
                                                regional haze.                                           enforceable duty on any state, local or                  EPA believes the human health or
                                                   Finally, emission limits at LOS Unit                  tribal governments or the private sector.             environmental risk addressed by this
                                                1 are outside the scope of this                                                                                action will not have potential
                                                                                                         D. Executive Order 13132: Federalism                  disproportionately high and adverse
                                                reconsideration action; we only
                                                reconsidered the NOX BART                                  This action does not have federalism                human health or environmental effects
                                                determinations for MRYS Units 1 and 2                    implications. It will not have substantial            on minority, low-income or indigenous
                                                and LOS Unit 2.                                          direct effects on the states, on the                  populations. In this reconsideration,
                                                                                                                                                               EPA is affirming its prior approval of
                                                IV. Statutory and Executive Order                        relationship between the national
                                                                                                                                                               North Dakota SIP requirements for two
                                                Reviews                                                  government and the states, or on the
                                                                                                                                                               sources in North Dakota which increase
                                                                                                         distribution of power and                             environmental protection for the general
                                                A. Executive Order 12866: Regulatory                     responsibilities among the various
                                                Planning and Review and Executive                                                                              population. The action merely approves
                                                                                                         levels of government.                                 state law as meeting federal
                                                Order 13563: Improving Regulation and
                                                Regulatory Review                                        E. Executive Order 13175: Consultation                requirements and imposes no additional
                                                                                                         and Coordination With Indian Tribal                   requirements beyond those imposed by
                                                  This action is exempt from review by                                                                         state law. This regulatory option was
                                                the Office of Management and Budget                      Governments
                                                                                                                                                               selected as the preferable regulatory
                                                because it merely approves state law as                                                                        option for the reasons summarized in
                                                                                                           This action does not have tribal
                                                meeting federal requirements and                                                                               section II.B of this action. EPA provided
                                                                                                         implications, as specified in Executive
                                                imposes no additional requirements                                                                             meaningful participation opportunities
                                                                                                         Order 13175 because it does not impose
                                                beyond those imposed by state law. In                                                                          for minority, low-income or indigenous
                                                this reconsideration, EPA is affirming its               substantial direct compliance costs and
                                                                                                         does not preempt tribal law. In this                  populations or tribes in the
                                                prior approval of North Dakota SIP                                                                             development of this rule by conducting
                                                requirements for two sources in North                    reconsideration, EPA is affirming its
                                                                                                         prior approval of North Dakota SIP                    a public hearing on May 15, 2013 and
                                                Dakota.                                                                                                        by providing a three-month public
                                                                                                         requirements for two sources in North
                                                B. Paperwork Reduction Act                               Dakota. The action merely approves                    comment period as described in section
                                                                                                         state law as meeting federal                          I of this action.
                                                  This action does not impose an
                                                                                                                                                                  As part of this environmental justice
                                                information collection burden under the                  requirements and imposes no additional
                                                                                                                                                               assessment, EPA also reviewed 2013
                                                provisions of the Paperwork Reduction                    requirements beyond those imposed by
                                                                                                                                                               U.S. Census Bureau data for Mercer and
                                                Act. This action is not imposing any                     state law. Thus, Executive Order 13175                Oliver counties 21 where the two sources
                                                additional burden on the public.                         does not apply to this rule.                          involved in this reconsideration action
                                                C. Regulatory Flexibility Act                            F. Executive Order 13045: Protection of               are located. Both counties have small
                                                                                                         Children From Environmental Health                    minority populations with the white,
                                                   I certify that this action will not have
                                                                                                         Risks and Safety Risks                                non-minority populations comprising
                                                a significant economic impact on a
                                                                                                                                                               over 95% of the whole. Both counties
                                                substantial number of small entities
                                                                                                           EPA interprets Executive Order 13045                are also below the 2013 national official
                                                under the Regulatory and Flexibility
                                                                                                         as applying only to those regulatory                  poverty rate of 14.5% and the Midwest
                                                Act. In making this determination, the
                                                                                                         actions that concern environmental                    poverty rate of 12.9%.22 The 2013
                                                impact of concern is any significant
                                                adverse economic impact on small                         health or safety risks that EPA has                   poverty rates for Mercer and Oliver
                                                entities. An agency may certify that a                   reason to believe may                                 counties are 7.2% and 11.4%,
                                                rule will not have a significant                         disproportionately affect children, per               respectively. For comparison, the
                                                economic impact on a substantial                         the definition of ‘‘covered regulatory
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                                                                                                                                                                 21 Mercer County, http://quickfacts.census.gov/
                                                number of small entities if the rule                     action’’ in section 2–202 of the                      qfd/states/38/38057.html, Oliver County, http://
                                                relieves regulatory burden, has no net                   Executive Order. This action is not                   quickfacts.census.gov/qfd/states/38/38065.html.
                                                burden or otherwise has a positive                       subject to Executive Order 13045                        22 Income and Poverty in the United States: 2013,

                                                economic effect on the small entities                    because it affirms a prior approval of a              Current Population Reports, DeNavas-Walt and
                                                                                                                                                               Proctor, Issued September 2014, P60–249, pp. 1 and
                                                subject to the rule. In this                             state action implementing a federal                   15. Available at https://www.census.gov/content/
                                                reconsideration, EPA is affirming its                    standard.                                             dam/Census/library/publications/2014/demo/p60-
                                                prior approval of North Dakota SIP                                                                             249.pdf.



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                                                                 Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations                                         8559

                                                poverty rate for the State of North                      DEPARTMENT OF COMMERCE                                longline and hook-and-line components
                                                Dakota is 12.1%. Supporting                                                                                    as commercial quotas.
                                                documentation is included in the                         National Oceanic and Atmospheric                         The commercial quota for the longline
                                                docket.                                                  Administration                                        component for golden tilefish in the
                                                                                                                                                               South Atlantic is 405,971 lb (184,145
                                                   EPA’s policy on environmental justice                                                                       kg), gutted weight, for the current
                                                                                                         50 CFR Part 622
                                                is to ensure the fair treatment and                                                                            fishing year, January 1 through
                                                meaningful involvement of all people                     [Docket No. 120404257–3325–02]                        December 31, 2015, as specified in 50
                                                regardless of race, color, national origin,                                                                    CFR 622.190(a)(2)(iii).
                                                or income with respect to the                            RIN 0648–XD735
                                                                                                                                                                  Under 50 CFR 622.193(a)(1)(ii), NMFS
                                                development, implementation, and                         Fisheries of the Caribbean, Gulf of                   is required to close the commercial
                                                enforcement of environmental laws,                       Mexico, and South Atlantic; 2015                      longline component for golden tilefish
                                                regulations, and policies. Our review                    Commercial Accountability Measure                     when the longline component’s
                                                here for this reconsideration action is                  and Closure for South Atlantic Golden                 commercial quota has been reached, or
                                                consistent with EPA’s policy. This                       Tilefish Longline Component                           is projected to be reached, by filing a
                                                section, along with the supporting                                                                             notification to that effect with the Office
                                                documentation in the docket, constitute                  AGENCY:  National Marine Fisheries                    of the Federal Register. After the
                                                EPA’s full analysis of environmental                     Service (NMFS), National Oceanic and                  commercial quota for the longline
                                                justice for this action.                                 Atmospheric Administration (NOAA),                    component is reached or projected to be
                                                                                                         Commerce.                                             reached, golden tilefish may not be
                                                J. Congressional Review Act                              ACTION: Temporary rule; closure.                      fished for or possessed by a vessel with
                                                                                                                                                               a golden tilefish longline endorsement.
                                                   This action is subject to the                         SUMMARY:    NMFS implements an                        NMFS has determined that the
                                                Congressional Review Act, and EPA will                   accountability measure for the                        commercial quota for the longline
                                                submit a rule report to each House of                    commercial longline component for                     component for golden tilefish in the
                                                the Congress and to the Comptroller                      golden tilefish in the exclusive                      South Atlantic will be reached on
                                                General of the United States. This action                economic zone (EEZ) of the South                      February 19, 2015. Accordingly, the
                                                is not a ‘‘major rule’’ as defined by 5                  Atlantic. Commercial longline landings                commercial longline component for
                                                U.S.C. 804(2).                                           for golden tilefish are projected to reach            South Atlantic golden tilefish is closed
                                                                                                         the longline component’s commercial                   effective 12:01 a.m., local time, February
                                                K. Petitions for Judicial Review
                                                                                                         annual catch limit (ACL; commercial                   19, 2015, until 12:01 a.m., local time,
                                                   Under section 307(b)(1) of the CAA,                   quota) on February 19, 2015. Therefore,               January 1, 2016.
                                                petitions for judicial review of this                    NMFS closes the commercial longline                      During the commercial longline
                                                action must be filed in the United States                component for golden tilefish in the                  closure, golden tilefish may still be
                                                                                                         South Atlantic EEZ on February 19,                    harvested commercially using hook-
                                                Court of Appeals for the appropriate
                                                                                                         2015, and it will remain closed until the             and-line gear. However, a vessel with a
                                                circuit by April 20, 2015. Filing a
                                                                                                         start of the next fishing season, January             golden tilefish longline endorsement is
                                                petition for reconsideration by the                                                                            not eligible to fish for or possess golden
                                                Administrator of this final rule does not                1, 2016. This closure is necessary to
                                                                                                         protect the golden tilefish resource.                 tilefish using hook-and-line gear under
                                                affect the finality of this action for the                                                                     the hook-and-line trip limit, as specified
                                                purposes of judicial review nor does it                  DATES: This rule is effective 12:01 a.m.,
                                                                                                         local time, February 19, 2015, until                  in 50 CFR 622.191(a)(2)(ii). The operator
                                                extend the time within which a petition                                                                        of a vessel with a valid commercial
                                                for judicial review may be filed, and                    12:01 a.m., local time, January 1, 2016.
                                                                                                                                                               vessel permit for South Atlantic
                                                shall not postpone the effectiveness of                  FOR FURTHER INFORMATION CONTACT:                      snapper-grouper and a valid commercial
                                                such rule or action. This action may not                 Britni LaVine, telephone: 727–824–                    longline endorsement for golden tilefish
                                                be challenged later in proceedings to                    5305, email: britni.lavine@noaa.gov.                  having golden tilefish on board must
                                                enforce its requirements. (See section                   SUPPLEMENTARY INFORMATION: The                        have landed and bartered, traded, or
                                                307(b)(2).)                                              snapper-grouper fishery of the South                  sold such golden tilefish prior to 12:01
                                                                                                         Atlantic includes golden tilefish and is              a.m., local time, February 19, 2015.
                                                List of Subjects in 40 CFR Part 52                       managed under the Fishery                             During the commercial longline closure,
                                                                                                         Management Plan for the Snapper-                      the bag limit and possession limits
                                                  Environmental protection, Air
                                                                                                         Grouper Fishery of the South Atlantic                 specified in 50 CFR 622.187(b)(2)(iii)
                                                pollution control, Incorporation by
                                                                                                         Region (FMP). The FMP was prepared                    and (c)(1), respectively, apply to all
                                                reference, Intergovernmental relations,                  by the South Atlantic Fishery                         harvest or possession of golden tilefish
                                                Nitrogen dioxides, Particulate matter,                   Management Council and is                             in or from the South Atlantic EEZ by a
                                                Reporting and recordkeeping                              implemented under the authority of the                vessel with a golden tilefish longline
                                                requirements, Sulfur dioxide, Volatile                   Magnuson-Stevens Fishery                              endorsement, and the sale or purchase
                                                organic compounds.                                       Conservation and Management Act                       of longline-caught golden tilefish taken
                                                  Dated: February 6, 2015.                               (Magnuson-Stevens Act) by regulations                 from the EEZ is prohibited. The
                                                Gina McCarthy,                                           at 50 CFR part 622.                                   prohibition on sale or purchase does not
                                                                                                            On April 23, 2013, NMFS published                  apply to the sale or purchase of
                                                Administrator.
                                                                                                         a final rule to implement Amendment                   longline-caught golden tilefish that were
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                                                [FR Doc. 2015–03177 Filed 2–17–15; 8:45 am]
                                                                                                         18B to the FMP (78 FR 23858).                         harvested, landed ashore, and sold prior
                                                BILLING CODE 6560–50–P                                   Amendment 18B to the FMP established                  to 12:01 a.m., local time, February 19,
                                                                                                         a longline endorsement program for the                2015, and were held in cold storage by
                                                                                                         commercial golden tilefish component                  a dealer or processor. Additionally, the
                                                                                                         of the snapper-grouper fishery and                    bag and possession limits and the sale
                                                                                                         allocated the commercial golden tilefish              and purchase provisions of the
                                                                                                         ACL among two gear groups, the                        commercial closure apply to a person on


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Document Created: 2018-02-16 11:10:50
Document Modified: 2018-02-16 11:10:50
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionNotice of final action on reconsideration.
DatesThis final action is effective March 20, 2015.
ContactGail Fallon, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado, 80202-1129, (303) 312-6281, [email protected]
FR Citation80 FR 8550 
CFR AssociatedEnvironmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxides; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Dioxide and Volatile Organic Compounds

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