[Federal Register Volume 85, Number 65 (Friday, April 3, 2020)]
[Notices]
[Page 18992]
[FR Doc No: 2020-07016]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2020-N-0907]

Medical Device User Fee Amendments for Fiscal Years 2023 Through
2027; Public Meeting; Request for Comments

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of public meeting; request for comments; postponement.

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SUMMARY: The Food and Drug Administration (FDA) is announcing that the
public meeting entitled ``Medical Device User Fee Amendments for Fiscal
Years 2023 Through 2027; Public Meeting; Request for Comments'' that
appeared in the Federal Register on March 6, 2020, and was scheduled
for April 7, 2020, is postponed to May 5, 2020, and will take place by
webcast only.

DATES: The public meeting will take place remotely on May 5, 2020,
beginning at 9 a.m. EST. Submit either electronic or written comments
on the medical device user fee program and suggestions regarding the
commitments FDA should propose for the next reauthorized program by
June 5, 2020.

FOR FURTHER INFORMATION CONTACT: Ellen Olson, Center for Devices and
Radiological Health, Food and Drug Administration, Bldg. 66, Rm. 1664,
10903 New Hampshire Ave., Silver Spring, MD 20993,<PHONE_NUMBER>,
<EMAIL_ADDRESS>or 044740564c294b54415529577076657061636d674d6a6d706d65706d726177446260652a6c6c772a636b72.

SUPPLEMENTARY INFORMATION: The public meeting entitled ``Medical Device
User Fee Amendments for Fiscal Years 2023 Through 2027; Public Meeting;
Request for Comments'' announced in the Federal Register of March 6,
2020 (85 FR 13165), and scheduled for April 7, 2020, is postponed to
May 5, 2020, and will take place virtually due to extenuating
circumstances. There will no longer be an in-person meeting and instead
the meeting will be held by webcast only. The webcast link and
connection instructions will be available on the registration web page
(https://www.fda.gov/medical-devices/workshops-conferences-medical-devices/2020-medical-device-meetings-and-workshops) after April 23,
2020. Interested participants may continue to register and, if
applicable, to specify whether they would like to present during a
particular session or the public comment session.

    Dated: March 31, 2020.
Lowell J. Schiller,
Principal Associate Commissioner for Policy.
[FR Doc. 2020-07016 Filed 4-2-20; 8:45 am]
BILLING CODE 4164-01-P


[Federal Register Volume 82, Number 93 (Tuesday, May 16, 2017)]
[Proposed Rules]
[Pages 22445-22448]
[FR Doc No: 2017-09845]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2017-0339; Directorate Identifier 2016-NM-078-AD]
RIN 2120-AA64

Airworthiness Directives; Airbus Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to supersede Airworthiness Directive (AD) 2014-13-
17, for all Airbus Model A300 series airplanes; Airbus Model A300 B4-
600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R
Variant F airplanes (collectively called Model A300-600 series
airplanes); and Airbus Model A310 series airplanes. AD 2014-13-17
currently requires repetitive functional tests of the circuit breakers
for the fuel pump power supply, and replacement of certain circuit
breakers. Since we issued AD 2014-13-17, we have determined that
installation of a newly developed fuel pump standard will better
address the unsafe condition. This proposed AD would require
installation of fuel pumps having the new standard, which would
terminate the repetitive functional tests. We are proposing this AD to
address the unsafe condition on these products.

DATES: We must receive comments on this proposed AD by June 30, 2017.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
    For service information identified in this NPRM, contact Airbus
SAS, Airworthiness Office--EAW, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44
51; email<EMAIL_ADDRESS>Internet http://www.airbus.com. You may view this referenced service information at the
FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA.
For information on the availability of this material at the FAA, call
425-227-1221.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-
0339; or in person at the Docket Management Facility between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The AD docket
contains this proposed AD, the regulatory evaluation, any comments
received, and other information. The street address for the Docket
Operations office (telephone<PHONE_NUMBER>) is in the ADDRESSES section.
Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
1601 Lind Avenue SW., Renton, WA 98057-3356; telephone<PHONE_NUMBER>;
fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposal. Send your comments to an address listed
under the ADDRESSES

section. Include ``Docket No. FAA-2017-0339; Directorate Identifier
2016-NM-078-AD'' at the beginning of your comments. We specifically
invite comments on the overall regulatory, economic, environmental, and
energy aspects of this proposed AD. We will consider all comments
received by the closing date and may amend this proposed AD based on
those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this proposed AD.

Discussion

    On June 25, 2014, we issued AD 2014-13-17, Amendment 39-17893 (79
FR 41098, July 15, 2014) (``AD 2014-13-17''). AD 2014-13-17 requires
actions intended to address an unsafe condition on all Airbus Model
A300 series airplanes; Model A300-600 series airplanes; and Airbus
Model A310 series airplanes.
    Since we issued AD 2014-13-17, a new fuel pump standard was
developed that has improved thermal protection. This improved thermal
protection prevents a fuel pump from overheating, and possibly
resulting in a fuel tank explosion and loss of the airplane. We have
determined that installation of the fuel pump standard will better
address the unsafe condition than the currently required repetitive
functional tests.
    The European Aviation Safety Agency (EASA), which is the Technical
Agent for the Member States of the European Union, has issued EASA
Airworthiness Directive 2016-0080, dated April 21, 2016 (referred to
after this as the Mandatory Continuing Airworthiness Information, or
``the MCAI''), to correct an unsafe condition for all Airbus Model A300
series airplanes; Model A300-600 series airplanes; and Airbus Model
A310 series airplanes. The MCAI states:

    Two successive failures have been reported of a Right Hand # 1
inner tank fuel pump, Part Number (P/N) 2052Cxx series (where ``xx''
represents any numerical combination). These occurrences were solved
by replacement of the pump, associated circuit breaker (CB) and the
alternating current (AC) bus load relay.
    Investigations determined that, in case of loss of one phase on
the pump supply and the associated CB failing to trip, the fuel pump
thermal fuses may not operate as quickly as expected.
    This condition, if not detected and corrected, could lead to an
overheat condition of the fuel pump in excess of 200[deg]C, possibly
resulting in a fuel tank explosion and loss of the aeroplane.
    To address this potential unsafe condition, Airbus issued Alert
Operator Transmission (AOT) A28W002-13 providing instructions for
functional tests of CBs.
    As a temporary measure, EASA issued AD 2013-0163 [which
corresponds to FAA AD 2014-13-17] to require repetitive functional
tests of the affected fuel pump power supply CBs, and, depending on
findings, replacement.
    Since that [EASA] AD was issued, a new standard of fuel pump was
developed, which improves the thermal protection, thereby preventing
the potential unsafe condition and cancelling the need for
repetitive functional tests of the affected CBs, as required by EASA
AD 2013-0163. Airbus issued Service Bulletin (SB) A300-28-0093, SB
A300-28-6111, SB A300-28-9025 and SB A310-28-2176 to provide
instructions for this upgrade of the fuel pump for all positions on
the aeroplane.
    For the reasons described above, this [EASA] AD retains the
requirements EASA AD 2013-0163, which is superseded, and requires
installation of the new standard fuel pump, which constitutes
terminating action for the repetitive functional tests.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-
0339.

Related Service Information Under 1 CFR Part 51

    Airbus has issued the following service information, which
describes procedures for installing new standard fuel pumps with
improved thermal protection. These documents are distinct since they
apply to different airplane models in different configurations.
     Service Bulletin A300-28-0093, dated December 15, 2015.
     Service Bulletin A300-28-6111, Revision 01, dated February
29, 2016.
     Service Bulletin A310-28-2176, dated December 15, 2015.
    This service information is reasonably available because the
interested parties have access to it through their normal course of
business or by the means identified in the ADDRESSES section.

FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with the State of Design Authority, we have
been notified of the unsafe condition described in the MCAI and service
information referenced above. We are proposing this AD because we
evaluated all pertinent information and determined an unsafe condition
exists and is likely to exist or develop on other products of these
same type designs.

Costs of Compliance

    We estimate that this proposed AD affects 128 airplanes of U.S.
registry.
    The actions required by AD 2014-13-17 and retained in this proposed
AD take about 1 work-hour per product, at an average labor rate of $85
per work-hour. Based on these figures, the estimated cost of the
actions that are required by AD 2014-13-17 is $85 per product, per
inspection cycle.
    We also estimate that it would take up to 21 work-hours per product
to comply with the basic requirements of this proposed AD. The average
labor rate is $85 per work-hour. Required parts cost per product is not
available. Based on these figures, we estimate the cost of this
proposed AD on U.S. operators to be up to $228,480, or up to $1,785 per
product.
    According to the manufacturer, some of the costs of this proposed
AD may be covered under warranty, thereby reducing the cost impact on
affected individuals. We do not control warranty coverage for affected
individuals. As a result, we have included all available costs in our
cost estimate.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect 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.
    For the reasons discussed above, I certify this proposed
regulation:

    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979);
    3. Will not affect intrastate aviation in Alaska; and
    4. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13   [Amended]

0
2. The FAA amends Sec.  39.13 by removing Airworthiness Directive (AD)
2014-13-17, Amendment 39-17893 (79 FR 41098, July 15, 2014), and adding
the following new AD:

Airbus: Docket No. FAA-2017-0339; Directorate Identifier 2016-NM-
078-AD.

(a) Comments Due Date

    We must receive comments by June 30, 2017.

(b) Affected ADs

    This AD replaces AD 2014-13-17, Amendment 39-17893 (79 FR 41098,
July 15, 2014) (``AD 2014-13-17'').

(c) Applicability

    This AD applies to the Airbus airplanes, certificated in any
category, identified in paragraphs (c)(1) through (c)(6) of this AD,
all manufacturer serial numbers.
    (1) Airbus Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-
103, and B4-203 airplanes.
    (2) Airbus Model A300 B4-601, B4-603, B4-620, and B4-622
airplanes.
    (3) Airbus Model A300 B4-605R and B4-622R airplanes.
    (4) Airbus Model A300 C4-605R Variant F airplanes.
    (5) Airbus Model A300 F4-605R and F4-622R airplanes.
    (6) Airbus Model A310-203, -204, -221, -222, -304, -322, -324,
and -325 airplanes.

(d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel.

(e) Reason

    This AD was prompted by reports of failures of the right inner
tank fuel pump. We are issuing this AD to prevent a fuel pump from
overheating, which could result in a fuel tank explosion and
consequent loss of the airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Retained: Repetitive Functional Tests of Circuit Breakers, With New
Terminating Action

    This paragraph restates the requirements of paragraph (g) of AD
2014-13-17, with a new terminating action.
    (1) Within 6 months or 500 flight hours after August 19, 2014
(the effective date of AD 2014-13-17), whichever occurs first: Do a
functional test of the circuit breakers for the fuel pump power
supply, as identified in paragraphs (g)(1)(i), (g)(1)(ii), and
(g)(1)(iii) of this AD, as applicable, in accordance with Airbus
Alert Operators Transmission A28W002-13, dated July 23, 2013. Repeat
the functional test thereafter at intervals not to exceed 6 months
or 500 flight hours, whichever occurs first, until the fuel pump
installation required by paragraph (h) of this AD is accomplished.
    (i) For Airbus Model A300 B2-1A, B2-1C, B2K-3C, and B2-203
airplanes: Inner and outer pump, No. 1 and No. 2, left-hand (LH)
side and right-hand (RH) side.
    (ii) For Airbus Model A300 B4-2C, B4-103, B4-203, B4-601, B4-
603, B4-620, and B4-622 airplanes; and A310-203, -204, -221, and -
222 airplanes:
    (A) Inner and outer pump, No. 1 and No. 2, LH and RH; and
    (B) Center pump, LH and RH.
    (iii) For Airbus Model A300 B4-605R, B4-622R, F4-605R, F4-622R,
and C4-605R Variant F airplanes; and Model A310-304, -322, -324, and
-325 airplanes:
    (A) Inner and outer pump, No. 1 and No. 2, LH and RH;
    (B) Center pump, LH and RH; and
    (C) Trim tank pump No. 1 and No. 2.
    (2) If, during any functional test required by paragraph (g)(1)
of this AD, any circuit breaker fails any functional test, or any
circuit breaker is found to be stuck closed, before further flight,
replace the affected circuit breaker with a serviceable part, in
accordance with Airbus Alert Operators Transmission A28W002-13,
dated July 23, 2013.
    (3) The replacement of one or more circuit breakers as required
by paragraph (g)(2) of this AD does not terminate the repetitive
functional tests required by paragraph (g)(1) of this AD.

(h) New Requirement of This AD: Installation of Fuel Pumps Having a New
Standard

    Within 72 months after the effective date of this AD: Install a
fuel pump having a new standard at each applicable location on the
airplane, in accordance with the Accomplishment Instructions of the
applicable service information specified in paragraph (h)(1),
(h)(2), or (h)(3) of this AD. Accomplishment of the installation of
fuel pumps having the new standard terminates the requirement for
the repetitive functional tests required by paragraph (g)(1) of this
AD.
    (1) Airbus Service Bulletin A300-28-0093, dated December 15,
2015.
    (2) Airbus Service Bulletin A300-28-6111, Revision 01, dated
February 29, 2016.
    (3) Airbus Service Bulletin A310-28-2176, dated December 15,
2015.

(i) Parts Installation Prohibition

    After the installation of any fuel pump having a new standard on
an airplane, as required by paragraph (h) of this AD, no person may
install any fuel pump having part number 2052Cxx (where ``xx''
represents any numerical combination) on that airplane.

(j) Credit for Previous Actions

    This paragraph provides credit for the installation required by
paragraph (h) of this AD, if the installation was done before the
effective date of this AD using Airbus Service Bulletin A300-28-
6111, dated December 15, 2015.

(k) Other FAA AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
has the authority to approve AMOCs for this AD, if requested using
the procedures found in 14 CFR 39.19. In accordance with 14 CFR
39.19, send your request to your principal inspector or local Flight
Standards District Office, as appropriate. If sending information
directly to the International Branch, send it to the attention of
the person identified in paragraph (l)(2) of this AD. Information
may be emailed to<EMAIL_ADDRESS>Before using any
approved AMOC, notify your appropriate principal inspector, or
lacking a principal inspector, the manager of the local flight
standards district office/certificate holding district office.
    (2) Contacting the Manufacturer: As of the effective date of
this AD, for any requirement in this AD to obtain corrective actions
from a manufacturer, the action must be accomplished using a method
approved by the Manager, International Branch, ANM-116, Transport
Airplane Directorate, FAA; or the European Aviation Safety Agency
(EASA); or Airbus's EASA Design Organization Approval (DOA). If
approved by the DOA, the approval must include the DOA-authorized
signature.
    (3) Required for Compliance (RC): If any Airbus service
information contains procedures or tests that are identified as RC,
those procedures and tests must be done to comply with this AD; any
procedures or tests that are not identified as RC are recommended.
Those procedures and tests that are not identified as RC may be
deviated from using accepted methods in accordance with the
operator's maintenance or inspection program without obtaining
approval of an AMOC, provided the procedures and tests identified as
RC can be done and the airplane can be put back in an

airworthy condition. Any substitutions or changes to procedures or
tests identified as RC require approval of an AMOC.

(l) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information
(MCAI) EASA AD 2016-0080, dated April 21, 2016, for related
information. This MCAI may be found in the AD docket on the Internet
at http://www.regulations.gov by searching for and locating Docket
No. FAA-2017-0339.
    (2) For more information about this AD, contact Dan Rodina,
Aerospace Engineer, International Branch, ANM-116, Transport
Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-
3356; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.
    (3) For service information identified in this AD, contact
Airbus SAS, Airworthiness Office--EAW, 1 Rond Point Maurice
Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96;
fax +33 5 61 93 44 51; email<EMAIL_ADDRESS>
Internet http://www.airbus.com. You may view this service
information at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue SW., Renton, WA. For information on the availability of this
material at the FAA, call<PHONE_NUMBER>.

    Issued in Renton, Washington, on May 8, 2017.
Michael Kaszycki,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2017-09845 Filed 5-15-17; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register Volume 85, Number 93 (Wednesday, May 13, 2020)]
[Rules and Regulations]
[Pages 28493-28494]
[FR Doc No: 2020-09550]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2018-0208; FRL-10009-05-Region 6]

Air Plan Approval; Oklahoma; Updates to the General SIP and New
Source Review Permitting Requirements; Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; correction.

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SUMMARY: The Environmental Protection Agency (EPA) is correcting a
final rule that was published in the Federal Register on April 10, 2020
which will be effective on May 11, 2020. The final rule approved
revisions to the state implementation plan for Oklahoma (Oklahoma SIP)
concerning the incorporation by reference of federal requirements,
updates to the general SIP provisions, and updates to the New Source
Review (NSR) permit programs to address public notice and modeling
requirements, including certain statutory provisions. This correction
does not change any final action taken by the EPA on April 10, 2020;
today's action merely provides further clarification on the rulemaking
citations for the Oklahoma SIP.

DATES: This rule is effective on May 11, 2020.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2018-0208. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet. Publicly available docket
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Adina Wiley, EPA Region 6 Office, Air
Permits Section,<PHONE_NUMBER>,

<EMAIL_ADDRESS>Out of an abundance of caution for members of the
public and our staff, the EPA Region 6 office will be closed to the
public to reduce the risk of transmitting COVID-19. Please call or
email the contact listed above if you need alternative access to
material indexed but not provided in the docket.

SUPPLEMENTARY INFORMATION: In FR doc. 2020-06160 at 85 FR 20178 in the
issue of April 10, 2020, the following corrections are made:

Sec.  52.1920   [Corrected]

0
1. On page 20181, in the second column, amendatory instruction a.ii. is
corrected to read ``Adding entries for ``252:4-7-20'', ``252:4-17-1'',
``252:4-17-2'', ``252:4-17-3'', ``252:4-17-4'', ``252:4-17-5'',
``252:4-17-6'', ``252:4-17-7'', ``252:100-8-36.1''; and''

0
2. On the same page, in the third column, amendatory instruction b.i.
is corrected to read ``Amend the table titled ``EPA-Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the Oklahoma
SIP'' by adding a new entry at the end of the table for: ``Letter to
Ms. Anne Idsal, Regional Administrator, EPA Region 6, dated May 16,
2018 regarding ``Clarification of PSD Public Participation Procedures
under 2017 Revisions to the Oklahoma State Implementation Plan''.''

0
3. On the same page, in the same column, amendatory instruction b.ii.
is corrected to read ``Amend the table titled ``EPA Approved Statutes
in the Oklahoma SIP'' by adding new entries at the beginning of the
table for ``25 O.S. 304(2)'', ``27A O.S. 2-5-112(E)'', ``27A O.S. 2-14-
103'', ``27A O.S. 2-14-301'', ``27A O.S. 2-14-302'', ``27A O.S. 2-14-
303'', ``27A O.S. 2-14-304''; ``51 O.S. 24A.3'', ``75 O.S. 302(B)'',
and ``75 O.S. 303''.

    Dated: April 29, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020-09550 Filed 5-11-20; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)]
[Proposed Rules]
[Pages 8478-8485]
[FR Doc No: 2013-01463]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2010-0954 and EPA-R05-OAR-2010-0037; FRL-9772-8]

Approval and Promulgation of Air Quality Implementation Plans;
States of Michigan and Minnesota; Regional Haze

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; supplemental.

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SUMMARY: In this supplemental notice of proposed rulemaking, EPA is
soliciting additional comments on its proposal to disapprove in part
the Michigan and Minnesota regional haze State Implementation Plans
(SIPs) for failure to mandate best available retrofit technology (BART)
for taconite facilities within these states. This proposal supplements
an August 15,2012, action that proposed to disapprove these elements of
these SIPs and to establish

Federal emission limits representing BART.

DATES: Comments must be received on or before March 8, 2013.

ADDRESSES: Submit your comments, identified by Docket IDs No. EPA-R05-
OAR-2010-0954 and EPA-R05-OAR-2010-0037, by one of the following
methods:
    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
    Instructions: Direct your comments to Docket IDs No. EPA-R05-OAR-
2010-0954 and EPA-R05-OAR-2010-0037. EPA's policy is that all comments
received will be included in the public docket without change and may
be made available online at www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through
www.regulations.gov or email. The www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through www.regulations.gov your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
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comments, go to Section I of the SUPPLEMENTARY INFORMATION section of
this document.
    Docket: All documents in the docket are listed in the
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FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental
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<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: This supplementary information section is
arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. What is the background for this action?
III. What is EPA's review of Minnesota and Michigan's BART
determinations for taconite facilities?
    A. Minnesota
    B. Michigan
IV. How does this action relate to the action to promulgate Federal
requirements for taconite plants?
V. Statutory and Executive Order Reviews.

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
    2. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline
identified.

II. What is the background for this action?

    Minnesota submitted its regional haze plan on December 30, 2009,
and further submitted a proposed supplemental submission on January 5,
2012, and a final supplemental submission on May 8, 2012. EPA proposed
approval of the Minnesota plan on January 25, 2012 (77 FR 3681). Among
other actions, this proposed rule proposed to approve Minnesota's plan
as requiring BART for the State's several taconite plants, provided
Minnesota submitted its proposed taconite plant BART limits prior to
final EPA action. However, comments on Minnesota's and EPA's proposals
provided evidence that better, cost-effective technology for control of
taconite plant emissions was available. Therefore, EPA published a
final rule approving other aspects of the Minnesota regional haze plan
on June 12, 2012 (77 FR 34801), but deferred action on BART for
Minnesota's taconite facilities.
    Michigan submitted its regional haze plan on November 5, 2010. EPA
proposed action on the Michigan regional haze plan on August 6, 2012
(77 FR 46912). This proposed rule proposed to approve several aspects
of Michigan's regional haze plan, and proposed to disapprove Michigan's
BART determinations for a Portland cement plant and a paper mill and
proposed Federal limits for those two facilities. However, in this
proposed rule, EPA deferred action on BART for the Tilden Mining
taconite facility in Michigan. EPA published final action pursuant to
this proposal on December 3, 2012 (77 FR 71533), again deferring action
on BART for the Tilden Mining taconite plant in Michigan.
    Michigan has a second taconite plant, known as Empire Mining. While
Empire Mining began operation during the statutory timeframe such that
the

facility is BART-eligible, Michigan's plan demonstrates satisfactorily
that the impact of this facility is sufficiently small, as a result of
the enforceable shutdown of one line, that the facility may justifiably
be exempted from the BART requirement. On the other hand, Michigan's
plan identifies Tilden Mining as meeting the criteria for being subject
to BART. Thus, references in this action to taconite plants in
Minnesota and Michigan are meant to refer only to taconite plants in
Minnesota and Michigan that are subject to BART, which includes all of
the taconite plants in Minnesota and Tilden Mining in Michigan but does
not include the Empire Mining plant.
    On August 15, 2012 (77 FR 49308), EPA published proposed action on
BART for taconite plants in Minnesota and Michigan. In that action, EPA
reviewed relevant information regarding the feasibility of various
options for the control of emissions from taconite plants and reviewed
other information relevant to determining BART for these plants.
    Based on this review and the availability of cost-effective
controls, EPA proposed Federal emission limits requiring more stringent
control of emissions of nitrogen oxides (NOX) and sulfur
dioxide (SO2) than had been required by Minnesota or
Michigan. The notice of proposed rulemaking proposing these limits
provided a full discussion of why EPA proposed to conclude that proper
consideration of the BART criteria resulted in more stringent control
than was required by the States, thus implicitly concluding that the
state submittals did not require controls representing BART.
Furthermore, the action proposed regulatory text stating that the state
submittals failed to require BART for the taconite plants.
    Nevertheless, EPA is publishing this supplemental notice of
proposed rulemaking to provide additional information regarding the
agency's views on Minnesota's and Michigan's plans and to solicit
additional comment regarding the proposal to disapprove in part the
plans for failing to require BART at the applicable taconite plants.
EPA is not soliciting further comment on its proposed Federal limits;
this action only addresses whether the state plans must be disapproved
for failing to provide proper analysis and require BART for applicable
taconite plants. Further discussion regarding the relationship between
this action and the action published August 15, 2012 is provided below.
    Previous notices of proposed rulemaking addressing the States'
plans, i.e., the actions published January 25, 2012, and August 6,
2012, for Minnesota and Michigan, respectively, include substantial
discussion of the requirements under sections 169A and 169B of the
Clean Air Act and subpart P of 40 CFR 50 for regional haze plans. Most
pertinent to today's action are the requirements for BART in Clean Air
Act section 169A and 40 CFR 51.308(e). In making BART determinations,
section 169A(g)(2) of the Clean Air Act requires the state to 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.

III. What is EPA's review of Minnesota and Michigan's BART
determinations for taconite facilities?

A. Minnesota

    In its December 30, 2009, regional haze SIP submittal, Minnesota
identified the types of controls that it determined to represent BART
for its taconite plants. In all cases, good combustion practice was
determined to represent BART with respect to the control of
NOX, existing controls were determined to represent BART for
the control of SO2, and the maximum achievable control
technology limits in 40 CFR part 63 subpart RRRRR were determined to
represent BART for the control of particulate matter. However, this
submittal included no enforceable emission limits to require emissions
control at these facilities.
    To remedy this deficiency, Minnesota proposed emission limits
nominally representing good combustion practice for these facilities on
December 19, 2011. EPA provided comments on this proposal, stating that
more stringent limits were warranted and necessary because
``information supporting low NOX main burners as BART is
well documented and has been available for some time.'' See letter
dated February 10, 2012, signed by Douglas Aburano. These comments
provided a timetable showing that an analysis in January 2009 of
measures for reducing NOX emissions at U.S. Steel's Minntac
Iron Ore Pelletizing Plant recommended pursuing use of low
NOX main burners. Initial tests were sufficiently successful
that a report on these efforts, issued on April 13, 2010, recommended
further testing. Then, U.S. Steel submitted a report to Minnesota on
October 22, 2010, with test results from Minntac's Line 7 that
indicated that a 70 percent reduction in NOX emissions was
achievable via a low NOX main burner. U.S. Steel reported
similar results for Minntac Line 6 to Minnesota on December 1, 2011.
    Nevertheless, Minnesota's submittal did not demonstrate requisite
consideration of this evidence regarding the availability and
feasibility of this more effective control technology. In 2008, the
owners of each taconite facility asserted that a low NOX
main burner was infeasible. Minnesota, in its December 2009 SIP
submittal summarily concurred with the facilities, and the State in its
May 2012 submittal did not reconsider the feasibility of this control
option.
    EPA's BART Guidelines identify a five-step process for conducting a
BART analysis, step two of which is to determine whether the available
options identified in step one are technically feasible. The state
``should document a demonstration of technical infeasibility and should
explain, based on physical, chemical, or engineering principles, why
technical difficulties would preclude the successful use of the control
option on the emissions unit under review.'' See Section IV Step 2 of
the BART Guidelines, also at 70 FR 39163. Minnesota provided no such
demonstration and included no explanation why this control option
should be considered infeasible. Beyond lacking any discussion of
relevant principles bearing on whether the feasibility of low
NOX burners in other industries suggests that low
NOX main burners are feasible for taconite facilities,
Minnesota's submittals do not discuss the successful demonstration of
this control option at U.S. Steel's facilities or explain why this
control option should not be considered feasible at these plants and at
the other Minnesota taconite plants. Since Minnesota improperly
considered low NOX main burners to be infeasible, the
State's plan lacked the necessary analysis of the costs, emission
reductions, visibility benefits, and other relevant information to
determine whether these controls represent BART. Instead, in its May
2012 submittal, Minnesota stated ``The [Minnesota Pollution Control
Agency (MPCA)] understood the purpose of the Supplemental SIP was to
establish emission limits that correspond to the previously determined
BART technology. The MPCA does not believe that completing the emission
limits is a vehicle for completely re-evaluating the BART
determinations for the taconite facilities.'' Minnesota conceded that
the

tests at Minntac ``indicate a potential to reach a 70 percent reduction
in NOX emissions at the subject lines [under certain
conditions],'' but Minnesota characterized the tests as ``pilot tests''
that could not be used without substantial additional effort to
establish appropriate BART limits. See the 279th page of the Minnesota
document entitled ``Regional Haze State Implementation Plan Supplement
April 2012.''
    EPA has several objections to Minnesota's rationale for failing to
require low NOX burners as BART for its taconite plants.
When EPA proposes an action but then receives significant evidence
favoring an alternate action, EPA must consider that evidence and take
the alternate action if warranted. See Sierra Club v. EPA, 671 F.3d 955
(9th Cir. 2012). Although EPA initially proposed to approve Minnesota's
taconite limits, EPA then received evidence that disapproval was
warranted because more effective controls were available. EPA's
consideration of this evidence resulted in EPA's August 15, 2012,
proposal to disapprove in part Minnesota's regional haze plan with
respect to BART for taconite plants and in EPA's action today to
publish this supplemental notice of proposed rulemaking.
    EPA believes that Minnesota is under similar obligation to
reconsider its taconite plant BART limits. The State solicited comments
regarding the limits it proposed to establish for its taconite plants,
the State received comments demonstrating that significantly tighter
limits were warranted, and the State did not give due consideration to
those comments. The failure to promulgate limits reflecting low
NOX main burners is especially problematic for Minntac,
where the benefits of this technology had been physically demonstrated.
Minnesota also did not give due consideration to the evidence that
similar technology could be expected to achieve similar emission
reductions and benefits at other Minnesota taconite plants.
    Furthermore, even at the time Minnesota submitted its original
regional haze SIP (December 2009), information was available that low
NOX main burners, which had been successfully demonstrated
in several other industries, were likely to be a successful technology
for reducing NOX emissions from taconite facilities as well.
Although EPA did not have the relevant information when it published
its January 2012 proposed rulemaking, the above chronology suggests
that Minnesota had information even in 2009 that warranted considering
low NOX main burners to be a feasible technology.
    The requirements in Minnesota's final submittal also reflect
significant modifications from the control technology that the State
determined in 2009 to reflect BART. Minnesota determined in 2009 that
good combustion practice represented BART. However, aside from
requiring continuation of the heat recuperation project at the Hibbing
Taconite Plant, Minnesota's final submittal provided no evidence that
good combustion practice is actually required. Minnesota did not
explain what specific measures constitute good combustion practice,
stating only that good combustion practice varies from plant to plant.
However, Minnesota did not define good combustion practice either in
general or on a plant-by-plant basis.
    Minnesota determined emission limits by conducting statistical
analyses of full sets of recent emissions data measured at the taconite
plants. While existing emissions may in some cases reflect some good
combustion practices, Minnesota did not differentiate whether any
particular data did or did not represent application of good combustion
practice. Thus, Minnesota's limits must be considered to represent
simply the existing combustion practice in effect during the testing,
without regard to whether these limits reflect application of good
combustion practices. Because the companies were required to collect
these data for purposes of determining these limits, with instructions
to operate under worst case conditions, it is reasonable to conclude
that the companies would not have employed good combustion practices,
as those would not have created ``worst case conditions.''
    Further, Minnesota's submittal did not determine whether good
combustion practices beyond those currently being implemented are
feasible, either in general or on a plant-specific basis. Minnesota's
December 2009 submittal determined that BART would be good combustion
practice, suggesting that BART would reflect identification,
evaluation, and implementation of improvements in combustion practice.
However, Minnesota's final submittal lacks any such identification,
evaluation, or requirement for any such improvement in combustion
practice. Moreover, the submittal does not evaluate whether current
combustion practice (or, more precisely, the combustion practice in
place during collection of the pertinent emissions data) represents
good combustion practice. In these respects, while Minnesota's December
2009 submittal determined BART for NOX to be good combustion
practice, Minnesota's final submittal contained no provisions ensuring
that good combustion practice will actually be followed.
    Minnesota's final submittal also deviates in other significant
respects from its December 2009 submittal. Minnesota's final submittal
relies on the Cross-State Air Pollution Rule to satisfy the BART
requirement for most of the State's electric generating units, whereas
its December 2009 plan determines BART on a plant-by-plant basis. The
long-term strategy in Minnesota's final plan provides for taconite
plants to conduct modeling and to recommend emission limits that would
provide for attainment of the nitrogen dioxide (NO2) and
SO2 air quality standards, whereas the December 2009 plan
provides for the companies to conduct pilot testing of emission control
technology. EPA is not conducting rulemaking here on these features of
Minnesota's regional haze plan, but these changes demonstrate that
Minnesota recognized its latitude to update portions of its December
2009 submittal significantly in light of more recent information.
Similarly, Minnesota cannot argue that it was obligated to set limits
based on its December 2009 BART determination, in the face of evidence
that more effective control is available.
    EPA is also concerned that Minnesota rejected flue gas
desulfurization as a feasible option for control of SO2
emissions at United Taconite (UTac). At this facility, Minnesota made
its initial BART determination at a time when UTac's Line 1 fired only
natural gas or fuel oil and when UTac's Line 2 fired a variety of fuels
including coal and petroleum coke. Minnesota determined at that time
that BART for SO2 for UTac reflected the existing
particulate matter scrubbers on both lines (without further
optimization to control SO2 emissions) and fuel blending to
reduce SO2 emissions on Line 2. Minnesota concluded that
flue gas desulfurization for these lines was not cost effective.
    UTac subsequently obtained a permit to burn solid fuels on Line 1.
Best available control technology (BACT) was not required in this
permit because Minnesota concluded that the fuel blending measures that
it had determined to be BART for Line 2, which it incorporated into the
permit, would yield a net SO2 emission reduction.
Consequently, the fuel change did not constitute a major modification
requiring BACT. Minnesota also chose not to conduct a revised BART
analysis, determining limits reflecting existing controls with the
original fuels and then adopting an

alternate set of limits that it found equivalent.
    EPA believes that Minnesota improperly rejected the use of flue gas
desulfurization as a cost effective technology for reducing
SO2 emissions from UTac's two lines. As discussed in the
August 15, 2012, notice of proposed rulemaking, EPA believes that flue
gas scrubbing, particularly in combination with proper fuel blending,
is considerably more cost effective than the cost effectiveness
estimates in Minnesota's plan. Furthermore, the significant change in
operation at the plant warranted reanalysis of BART at this plant. The
higher sulfur content of the new fuels made more aggressive emission
control more cost effective, so that a proper reanalysis of BART could
have concluded that BART for the new configuration reflected more
control and lower emissions than the original configuration.
Minnesota's analysis of the plant using its previous fuel mix does not
adequately evaluate the appropriateness of controls for the plant as it
is currently operated.\1\
---------------------------------------------------------------------------

    \1\ While this rulemaking does not address Federal limits that
EPA is promulgating elsewhere, it is relevant to note that EPA is
promulgating final limits based on the source burning low sulfur
fuels.
---------------------------------------------------------------------------

    EPA also has a variety of concerns about the enforceability of
Minnesota's chosen limits. Minnesota's limits are expressed as 30-day
rolling averages, but Minnesota in many cases does not require
continuous emission monitoring systems (CEMS) to provide data for
evaluating compliance. In the absence of CEMS, Minnesota requires
``stack testing * * * for 30 hourly data points.'' Even if the average
of the 30 data points exceeds the emission limit, the data can be
contested as not necessarily representative of the 720 hours that are
in a 30-day average. Minnesota has not addressed whether 720
consecutive hours of stack testing is even practicable, though none of
the data used to develop emission limits appears to have been collected
in this manner.
    EPA has special concerns about the enforceability of the CEMS
requirement for Hibbing Taconite. Minnesota requires that the company
submit a plan for installing a NOX CEMS, but it is not clear
from the administrative order thatMinnesota or EPA could take
enforcement action if Hibbing Taconite failed to install, certify, and
properly operate a CEMS at this facility.
    The SO2 emission limits in Minnesota's administrative
orders are expressed in terms of pounds of SO2 emissions per
long ton of pellets produced. Pellet production is not routinely
measured at the end of an indurating furnace. Further, the
administrative orders do not specify methods for determining pellet
production by indurating furnaces and do not specify any requirement
for the companies to keep records of pellet production. Therefore, the
enforceability of these limits is also unclear.
    The administrative order for Hibbing Taconite also provides that
the company may determine that its limits are not feasible to meet. In
that case, the order identifies information that the company must
submit to Minnesota so that the State can consider revised emission
limits. These provisions raise questions about whether EPA could
enforce the terms of the administrative order if the company has
declared the limits to be infeasible.
    EPA also has concerns about the methods for computing emission
limits. For Arcelor/Mittal and Hibbing Taconite, Minnesota appears to
have set the limit using the upper predictive limit approach. The
equation for calculating the upper predictive limit for normally
distributed data is:
[GRAPHIC] [TIFF OMITTED] TP06FE13.000

Where:

UPL = Upper predictive limit
n = number of data points
m = number of future data points
df = n - 1

X is the mean,
tp,df represents the critical t-value with a p-value of p and df
degrees of freedom, and
s is the standard deviation

    The available emissions data for these facilities appear not to be
normally distributed, and so the upper predictive limit equation that
Minnesota used is not appropriate for this application. In addition,
the analyses contained in the Minnesota submittal do not appropriately
apply the upper predictive limit approach for normally distributed
data. Most notable is the use of inappropriate values for tp,df and m.
A normal distribution has a lower tail of the distribution with the
same frequency as the upper tail of the distribution. In seeking, for
example, to establish the 95th percentile value in a normal
distribution, a one tailed test must be applied, such that the upper
tail contains five percent of the distribution and the lower tail is
simply part of the 95 percent of the distribution at or below the 95th
percentile value. However, Minnesota selected its values for tp,df
based on statistics for two tailed tests, which derive, for example, a
95 percent confidence interval that reflects a 2.5 percent upper tail
and a 2.5 percent lower tail, which would yield a 97.5th percentile
value. (Because normal distributions are symmetric, this error can be
addressed by using a value of tp,df for twice as much frequency outside
the confidence interval, e.g., using a two-tailed value of tp,df for a
confidence interval of 90 percent in order to derive the 95th
percentile value, but Minnesota did not make this adjustment.) Thus,
Minnesota selected values of tp,df that were unduly high, and higher in
the emissions distribution than Minnesota was purporting to choose.
    In the above formula, m represents the number of future runs, i.e.,
the number of future data points. Given that the data sets being used
in the analyses are one-hour averages, with CEMS, the value of m should
be 720 (30 days times 24 hours). At a minimum, under administrative
orders that in the absence of CEMS apparently determine compliance on
the basis of 30 hourly data points (presumably intended to represent
30-day average emissions), the appropriate value of m would be 30.
    For ArcelorMittal, Minnesota appears to have set the limit based on
a p-value of 0.01 (which in a normal distribution would yield an upper
tail of 0.5 percent and thus a 99.5 percentile value) and m = 3. These
values do not represent appropriate values for p or m.
    Furthermore, Minnesota did not base its limits for this facility
directly on the original data set, but instead used the 157 original
data points to create multiple artificial data sets, each including
2000 sets of 30 values randomly selected from the original 157 values.
Minnesota then performed statistical analysis of these data sets, using
the mean of the original 157 data points plus an adjustment based on
the highest standard deviation among the various artificial data sets
that was intended to provide a 99th percent upper predictive limit
value. Minnesota does not justify use of these artificial data sets as
providing a better representation of emissions or being a better basis
for determining an appropriate emission limit than direct use of the
original data set, nor does Minnesota justify using this particular
combination of statistics.
    Also of note is the fact that the average of the 157 data points is
significantly higher than the results of stack tests conducted between
June 2000 and April 2009; specifically, the average is 17 percent
higher than the highest of these stack test results and 32 percent
higher than the average of these stack test results. This suggests that
the data set on which Minnesota used to

derive its emission limits reflected poorer combustion practice than
was in place during the prior stack tests. This raises further
questions as to whether the data sets on which Minnesota bases its
limits can even be considered to reflect good combustion practice, much
less BART-level emission control.
    For Hibbing Taconite, Minnesota appears to have set the limit based
on a p-value of 0.05 (which would represent a 97.5% confidence
interval) and m = 1. Again, these are not appropriate values for p or
m.
    For Northshore Mining, Minnesota appears to have had very little
emissions data available as a basis for setting a limit. The hood
exhaust portion of the limit appears to be based on one test data point
multiplied by a ``compliance margin'' of 1.73. The state provided
inadequate justification for the 1.73 multiplier. The waste gas portion
of the limit appears to be based on a 95 percent upper confidence limit
(one-tailed test) and three data points.
    For the U.S. Steel-Minntac and -Keetac facilities, Minnesota set
facility-wide limits in terms of tons of SO2 per day.
Minnesota has not demonstrated that limiting the sum of emissions
across multiple lines requires control and visibility benefits that are
better than those that would be obtained by requiring BART on each
line.
    In summary, the BART determinations for taconite facilities in
Minnesota's plan reflect several deficiencies. Most notably, Minnesota
inappropriately rejects significant emission control options as being
infeasible. Minnesota summarily states that low NOX main
burners are infeasible, without providing the necessary explanation as
to why this technology could not be applied and without properly
considering evidence at U.S. Steel's Minntac plant demonstrating
successful operation of this control. Similarly, Minnesota
inappropriately rejected control options requiring significant
reductions in SO2 emissions. Minnesota determined that good
combustion practice represents BART for NOX control for
these plants, but the State did not define the measures that constitute
good combustion practice, the State did not evaluate what good
combustion practices might be implemented either in general or at
specific plants, and the State provided no basis to believe that its
adopted limits in fact reflect good combustion practice. Finally, EPA
has concerns about the enforceability and the derivation of several of
the limits in Minnesota's plan.

B. Michigan

    As with Minnesota's plan, EPA's primary concern with Michigan's
plan for the Tilden Mining facility is the failure of the plan to
require emission control that fully represents BART. The Michigan plan
provides no limits on NOX emissions, and Michigan relies on
a state permit to provide a limit on SO2 emissions that is
over four times higher than current emissions. Thus, rather than
require implementation of BART, Michigan's plan allows Tilden Mining to
increase emissions to levels substantially higher than the levels that
are occurring now.
    For NOX, Michigan nominally is defining BART to reflect
``good combustion practices,'' but in fact neither Michigan nor Tilden
Mining provide any analysis of what these practices might be and
whether any such measures that are not currently being implemented
might be required to be instituted. Michigan's plan thus might be
considered to define BART to reflect existing combustion practices,
except that Michigan's plan provides no limits that would require even
the existing combustion practices to be maintained. Instead, Michigan's
plan states that Michigan ``accepts Tilden's proposal to set a BART
NOX emission limit in a manner similar to the Minnesota
Regional Haze SIP. The new NOX limits will be set after
testing to determine appropriate limits based on `good combustion
practices' before December 31, 2012.'' See page 36 of the document
entitled, ``State Implementation Plan Submittal for Regional Haze''
dated October 2010. The plan anticipates that the company will perform
stack testing to develop information on which to base such limits.
However, Michigan has provided no information to EPA that it has taken
any of the steps that it would need to take to establish these limits.
In response to a request under authority of Clean Air Act section 114,
Tilden Mining provided EPA the results of three stack tests at each of
the two furnace stacks. However, Michigan has submitted no information
providing any analysis of emission limits to indicate what limit it
might find appropriate, and Michigan has evidently not adopted and has
not submitted any emission limit that would make any definition of
NOX BART at this facility enforceable.
    Appendix 9H of Michigan's submittal, a document labeled Tilden BART
Technical Analysis that was apparently prepared by Tilden Mining,
states that ``[l]ow NOX burners have been installed in the
preheating section of a straight-grate furnace at another taconite
plant; however, the [Tilden] indurating furnace does not contain a pre-
heat burner section. If [low NOX burners] were to be applied
in the indurating zone of the furnace, the reduced flame temperatures
associated with [low NOX burners] were to be applied in the
indurating zone of the furnace, the reduced flame temperatures
associated with [low NOX burners] would adversely affect
taconite pellet product quality. [Low NOX burners have] not
been applied to the indurating or preheat zones of any grate-kiln
taconite furnace. Therefore, this option is not technically feasible.''
Michigan's plan accepts Tilden Mining's conclusion that low
NOX burners are not technically feasible at this facility.
    As noted above, low NOX burners now have been applied to
a taconite furnace, in particular to the indurating zones of two grate-
kiln furnaces. These applications were found not to have adverse
effects on product quality. Thus, low NOX burners must be
considered technically feasible for Tilden Mining's indurating furnace.
Michigan was aware of the testing of low NOX main burners at
U.S. Steel's Minntac plant and received comments on the subject before
the end of the public comment period on its SIP. Insofar as Michigan
has not conducted an adequate review of the costs, benefits and other
consequences of implementing this technology, and since this control
would provide substantially better control compared to current practice
at the plant and compared to the unlimited NOX emissions
that Michigan allows, Michigan's plan cannot be considered to require
BART for NOX at Tilden Mining.
    With respect to SO2, Michigan found several emission
control options to be feasible, but the State ultimately concurred with
Tilden Mining's view that none of the options were cost-effective,
based on costs per ton of SO2 removal ranging from $6,557
per ton to $22,407 per ton. Michigan rejected use of alternative fuels
such as natural gas as not required by the BART Guidelines.
    In its August 15, 2012 proposed rulemaking, EPA reviewed the cost
effectiveness of SO2 emission controls and concluded that
flue gas desulfurization would be more cost effective than the Michigan
plan indicated. EPA has received comments on the cost effectiveness of
this control, and EPA has also received comments from Cliffs Natural
Resources indicating that limits reflecting the firing of natural gas
would also be an appropriate basis for setting SO2 emission
limits for Tilden. EPA will evaluate these comments and any additional
comments

that EPA receives in response to today's notice of proposed rulemaking,
in order to determine whether it considers these findings in Michigan's
plan to be problematic. In any case, EPA believes that the
SO2 emission limit for this facility set by Michigan,
allowing more than four times more emissions than the facility
currently emits, cannot be considered to represent BART.
    Michigan's plan also states that ``modeling results showed
SO2 emissions [from Tilden Mining] do not cause visibility
impairment to the Class I areas.'' However, Michigan's plan does not
include the information that would be necessary to support a statement
that is so at odds with the results of other modeling provided in the
plan. In any case, the furnace and other parts of the facility have
sufficient impact to be subject to the requirement for BART, and the
impact of the emissions of one pollutant can be considered as part of a
five factor analysis of BART but does not justify failing to perform
the necessary BART analysis, nor can such an analysis justify a
conclusion that BART reflects substantially greater emissions than the
facility currently emits.

IV. How does this action relate to the action to promulgate Federal
requirements for taconite plants?

    As noted above, in an action published August 15, 2012, EPA
proposed both to promulgate Federal limits representing BART for
taconite plants in Minnesota and Michigan and to disapprove Minnesota
and Michigan's plans with respect to BART for these plants. In
response, EPA received comments objecting that the agency had not
adequately explained its rationale for proposing to disapprove the
state submittals. EPA notes that it expressly proposed revisions to 40
CFR 52.1183 and 52.1235 to disapprove Michigan and Minnesota's plans
with respect to taconite plant BART and provided extensive discussion
of the limits needed to satisfy the taconite plant BART requirement,
which implicitly demonstrated the inadequacy of the states' plans.
Nonetheless, EPA agrees that further explanation of the basis for its
proposal to disapprove the state plans is warranted. Therefore, EPA is
providing this further explanation in this action and is soliciting
further comments on this topic.
    In these circumstances, EPA views the promulgation of a Federal
implementation plan (FIP) and the disapproval of the relevant elements
of the state plans as separable actions. A mandate for promulgating
Federal limits applies in cases where EPA ``finds that a State has
failed to make a required submission.'' EPA ``shall promulgate [a FIP]
within two years'' of such a finding, ``unless the State corrects the
deficiency, and [EPA] approves the plan or plan revision, before [EPA]
promulgates such Federal implementation plan.'' See Clean Air Act
section 110(c)(1)(A). Here, EPA made findings, published on January 14,
2009, at 74 FR 2392, that Minnesota and Michigan had failed to make
complete submittals addressing regional haze requirements. Minnesota
and Michigan subsequently made complete submittals, but because of the
deficiencies discussed in detail in this notice, EPA has not approved
these submittals with respect to BART for taconite plants. Therefore,
the mandate remains for EPA to promulgate a FIP with respect to
taconite plant BART. EPA notes that the agency's mandate to promulgate
such a FIP applies without regard to whether EPA has disapproved a
state submittal. While EPA has proposed to disapprove Michigan and
Minnesota's regional haze SIPs in this instance, publication of final
disapproval of the states' submittals is not a prerequisite for
promulgating a FIP, and EPA must promulgate a FIP in these
circumstances irrespective of whether it has disapproved the state
submittals.
    As a result, EPA today is publishing a separate action to
promulgate a FIP addressing BART for taconite plants in Minnesota and
Michigan. That action does not address the approvability of the state
submittals, a subject that will be addressed only after EPA considers
any additional comments it receives in response to this supplemental
notice of proposed rulemaking. Conversely, this action only addresses
the deficiencies in the states' submittals without addressing the
limits that EPA would find necessary, through Federal promulgation or
state adoption, to satisfy the BART requirement for these sources.
Similarly, this action is soliciting further comments on the
approvability of the state plans with respect to BART for taconite
plants, but EPA is not soliciting further comments on the FIP that EPA
proposed to promulgate. In addition, commenters that submitted comments
on the August 15, 2012, action that addressed the approvability of the
state submittals need not resubmit those comments; EPA will consider
those comments as well as any comments it receives in response to
today's proposal as it prepares final action on the elements of
Minnesota and Michigan's plans addressing BART for their taconite
plants.
    In summary, on August 15, 2012, EPA proposed to partially
disapprove Minnesota and Michigan's plans as failing to satisfy the
requirements for BART for their taconite plants. Today's supplemental
notice of proposed rulemaking provides further explanation of EPA's
rationale for proposing that action and solicits further comment on
that proposed action.

V. Statutory and Executive Order Reviews.

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget.

Paperwork Reduction Act

    This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).

Regulatory Flexibility Act

    This action merely solicits comment on a proposal to disapprove
state law as not meeting Federal requirements and imposes no additional
requirements beyond those imposed by state law. Accordingly, the
Administrator certifies that this rule will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this rule solicits comment on a proposal to disapprove pre-
existing requirements under state law and does not impose any
additional enforceable duty beyond that required by state law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely solicits comment on a proposal to
disapprove a state plan, and does not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Act.

Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments

    Subject to Executive Order 13175 (65 FR 67249, November 9, 2000),
EPA may not issue a regulation that has tribal implication, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by tribal governments, or
EPA consults with tribal officials early in the process of developing
the proposed regulation and develops a tribal summary impact statement.
    EPA has concluded that this action, in conjunction with the FIP
promulgation, may have tribal implications. For example, although the
FIP does not apply to sources in Indian country, controls and emission
reductions arising from the program may affect Indian country or other
tribal interests. However, the regulations arising under that action,
and the SIP disapproval being addressed here, will neither impose
substantial direct compliance costs on tribal governments, nor preempt
Tribal law.
    EPA initiated consultation with Tribal officials early in the
process of developing this regulation to permit them to have meaningful
and timely input into its development. EPA sent an invitation to
consult to each Region 5 Tribe on August 15, 2012, along with a copy of
the proposed taconite FIP Federal Register notice. Conference calls
were held on the taconite FIP proposal on August 22, 2012 and September
12, 2012 to provide all Region 5 Tribes with more information on the
proposed rulemaking and an opportunity to ask questions of EPA
technical staff and request formal individual consultation if desired.
Four Region 5 Tribes participated in the August 22, 2012 call. Two
Region 5 Tribes participated in the September 12, 2012 discussion. One
Region 5 Tribe provided verbal testimony at the public hearing held on
the proposed taconite FIP rulemaking on August 29, 2012. One Region 5
Tribal Chair expressed appreciation for the consultation discussions
held with the Tribes and gratitude for EPA's careful consideration of
the regional haze situation in northeast Minnesota.

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

    This rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it solicits comment on a proposal to
disapprove a state rule.

Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use

    Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' this action
is also not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

    In reviewing state submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a state submission for failure to use VCS. It would thus
be inconsistent with applicable law for EPA, when it reviews a state
submission, to use VCS in place of a state submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.

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

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices, based on the criteria
of the Clean Air Act. Accordingly, this action merely proposes to
disapprove certain state requirements for inclusion into the SIP under
section 110 and subchapter I, part D of the Clean Air Act and will not
in-and-of itself create any new requirements. Accordingly, it does not
provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898.

List of Subjects in 40 CFR Part 52

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

    Dated: January 11, 2013.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2013-01463 Filed 2-5-13; 8:45 am]
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[Federal Register Volume 77, Number 240 (Thursday, December 13, 2012)]
[Notices]
[Page 74181]
[FR Doc No: 2012-30066]

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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 ISO New
England Inc.:

NEPOOL Transmission Committee

     December 14, 2012

    The above-referenced meeting will be held via conference call.
    The above-referenced meeting is open to stakeholders.
    For additional information, see: http://www.iso-ne.com/committees/comm_wkgrps/index.html
    The discussions at the meeting described above may address matters
at issue in the following proceedings:

Docket No. ER13-193-000, ISO New England Inc.
Docket No. ER13-196-000, ISO New England Inc.

    For more information, contact William Lohrman, Office of Energy
Market Regulation, Federal Energy Regulatory Commission at (202) 502-
8070 or<EMAIL_ADDRESS>
    Dated: December 7, 2012.
Kimberly D. Bose,
Secretary.
[FR Doc. 2012-30066 Filed 12-12-12; 8:45 am]
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