[Federal Register Volume 80, Number 32 (Wednesday, February 18, 2015)]
[Rules and Regulations]
[Pages 8550-8559]
[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,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
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.

     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

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

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

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.
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    \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

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

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

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

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

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


[Federal Register Volume 80, Number 124 (Monday, June 29, 2015)]
[Notices]
[Page 36985]
[FR Doc No: 2015-15873]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Notice of Commission Staff Attendance

    The Federal Energy Regulatory Commission (Commission) hereby gives
notice that members of the Commission's staff may attend the following
meeting related to the transmission planning activities of NorthWestern
Corporation, Deseret Generation & Transmission Cooperative, Inc.,
Portland General Electric Company, Idaho Power Company, and PacifiCorp:

Northern Tier Transmission Group Quarter 6 Stakeholder Meeting
June 30, 2015, 10:30 a.m.-2:30 p.m. (MDT)

    The above-referenced meeting will be held at: Boise Airport
Conference Center, 3201 Airport Way #1000, Boise, ID 83705.
    The above-referenced meeting is open to stakeholders.
    Further information may be found at http://www.nttg.biz/site/.
    The discussions at the meeting described above may address matters
at issue in the following proceedings:

Docket No. ER13-1448, NorthWestern Corporation
Docket No. ER13-1457, Deseret Generation & Transmission Cooperative,
Inc.
Docket No. ER13-1463, Portland General Electric Company
Docket No. ER13-1467, Idaho Power Company
Docket No. ER13-1473, PacifiCorp

    For more information, contact Natalie Propst, Office of Energy
Market Regulation, Federal Energy Regulatory Commission at (202) 502-
8896 or<EMAIL_ADDRESS>
    Dated: June 23, 2015.
Kimberly D. Bose,
Secretary.
[FR Doc. 2015-15873 Filed 6-26-15; 8:45 am]
 BILLING CODE 6717-01-P


From:
"Ford, Luke"<EMAIL_ADDRESS>Sent:
Fri, 23 Sep 2022 16:56:46
To:
"Jones; DonnaLee"<EMAIL_ADDRESS><EMAIL_ADDRESS><EMAIL_ADDRESS>Cc:
Acheson, Seth<EMAIL_ADDRESS>Subject:
RE: CAA section 114 request for Coke Ovens RTR - email for Cokenergy

Dear Dr. Jones:

Per the Schedule for Submissions, see the attached letter detailing our stack testing problems identified in Enclosure 2.

Please let me know if there are questions or if you would like to schedule a meeting to talk through the issues identified.

Thanks very much.

Regards,

Luke E. Ford
Director EH&S
Primary Energy
3210 Watling St.
MC 2-991
East Chicago, IN 46312

Email<EMAIL_ADDRESS><EMAIL_ADDRESS>Office<PHONE_NUMBER>
Mobile<PHONE_NUMBER>

<<CE_114_Request_092322_Final_Signed.pdf>>

From: Jones, DonnaLee<EMAIL_ADDRESS>Sent: Tuesday, July 26, 2022 3:24 PMTo: Klefeker, Mo<EMAIL_ADDRESS>Ford, Luke<EMAIL_ADDRESS>Acheson, Seth<EMAIL_ADDRESS>STUCKEY, MATT<EMAIL_ADDRESS>Mooney, John<EMAIL_ADDRESS>French, Chuck<EMAIL_ADDRESS>Jones, DonnaLee<EMAIL_ADDRESS><EMAIL_ADDRESS>CAA section 114 request for Coke Ovens RTR - email for Cokenergy

Hello Mr. Klefeker:

I hope this email finds you well. Attached you'll find a Clean Air Act (CAA) Section 114 information request letter signed on July 26, 2022, that requests information from Cokenergy heat recovery facility in East Chicago, IN. Please read the letter carefully and respond to this email acknowledging your receipt of the letter. Along with the letter I have attached the following files:

-- Enclosures 1&2 as PDF files
-- Enclosures #3 through #9 as a combined PDF file (these are standard enclosures we include with all section 114 information requests)
-- 1 Excel file to use to submit data to Enclosure 1
--1 Excel file to use to submit data to Enclosure 2

Please let me know if you have any questions about this request.

Thank you in advance for your efforts on this CAA section 114 request.

Regards,
Donna Lee Jones, Ph.D.
Senior Technical Advisor, Metals Sector
U. S. Environmental Protection Agency
Office of Air Quality Planning and Standards
Sector Policies and Programs Division / Metals & Inorganic Chemicals Group (D243-02)
Research Triangle Park, NC  27711
Tele:<PHONE_NUMBER>
--------------------------------------------------------------------------------
Fax<PHONE_NUMBER>
"Reasonableness never fails to be appreciated."  - anon.

Pronouns - She/Her/Hers
Salutation - Dr./Ms.


[Federal Register Volume 78, Number 242 (Tuesday, December 17, 2013)]
[Notices]
[Page 76294]
[FR Doc No: 2013-29983]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9904-21-OW]

Underground Injection Control Program; Hazardous Waste Injection
Restrictions; Petition for Exemption--Class I Hazardous Waste
Injection; Mosaic Fertilizer, LLC Uncle Sam, LA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of a final decision on a no migration petition.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that an exemption to the land disposal
Restrictions, under the 1984 Hazardous and Solid Waste Amendments to
the Resource Conservation and Recovery Act, has been granted to Mosaic
Fertilizer, LLC for two Class I injection wells located at Uncle Sam,
LA. The company has adequately demonstrated to the satisfaction of the
Environmental Protection Agency by the petition application and
supporting documentation that, to a reasonable degree of certainty,
there will be no migration of hazardous constituents from the injection
zone for as long as the waste remains hazardous. This final decision
allows the underground injection by Mosaic, of the specific restricted
hazardous wastes identified in this exemption, into Class I hazardous
waste injection wells WDW-1 and WDW-2 for 57 years from the date of the
petition approval, unless EPA moves to terminate this exemption.
Additional conditions included in this final decision may be reviewed
by contacting the Region 6 Ground Water/UIC Section. A public notice
was issued September 24, 2013. The public comment period closed on
November 26, 2013. No comments were received. This decision constitutes
final Agency action and there is no Administrative appeal. This
decision may be reviewed/appealed in compliance with the Administrative
Procedure Act.

DATES: This action is effective as of December 4, 2013.

ADDRESSES: Copies of the petition and all pertinent information
relating thereto are on file at the following location: Environmental
Protection Agency, Region 6, Water Quality Protection Division, Source
Water Protection Branch (6WQ-S), 1445 Ross Avenue, Dallas, Texas 75202-
2733.

FOR FURTHER INFORMATION CONTACT: Philip Dellinger, Chief Ground Water/
UIC Section, EPA--Region 6, telephone<PHONE_NUMBER>.

    Dated: December 4, 2013.
David F. Garcia
Deputy Director, Water Quality Protection Division.
[FR Doc. 2013-29983 Filed 12-16-13; 8:45 am]
BILLING CODE 6560-50-P