
[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Rules and Regulations]
[Pages 34801-34808]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14101]



[[Page 34801]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2010-0037; FRL-9683-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to the Minnesota State 
Implementation Plan (SIP) addressing regional haze for the first 
implementation period, extending through July 31, 2018. Minnesota 
submitted its regional haze plan on December 30, 2009. A draft 
supplemental submission was made on January 5, 2012, and in final on 
May 8, 2012. EPA proposed to approve this plan on January 25, 2012. In 
response to comments, EPA is deferring action on emission limitations 
that Minnesota intended to represent best available retrofit technology 
(BART) for taconite facilities. As proposed, EPA is also deferring 
action on the requirements for Xcel Energy's Sherburne County (Sherco) 
facility resulting from its certification as a source of reasonably 
attributable visibility impairment (RAVI). After reviewing the 
comments, EPA continues to believe approval is warranted for the 
remaining regional haze plan elements. This approval is being taken in 
accordance with the requirements of the Clean Air Act (CAA) and EPA's 
rules for states to prevent and remedy future and existing 
anthropogenic impairment of visibility in mandatory Class I areas 
through a regional haze program.

DATES: This final rule is effective on July 12, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2010-0037. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. We recommend that you telephone Matt Rau, 
Environmental Engineer, at (312) 886-6524 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Matt Rau, Environmental Engineer, 
Control Strategies Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 886-6524, rau.matthew@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What action did EPA propose?
II. What are EPA's responses to public comments it received?
III. What is EPA's plan to address RAVI BART for Sherco?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What action did EPA propose?

    Minnesota submitted its regional haze plan on December 30, 2009, a 
draft supplement on January 5, 2012, and a final supplement on May 8, 
2012. This plan is intended to address regional haze requirements for 
the first implementation period, which extends through July 31, 2018. 
These requirements are given in CAA section 169A, and are implemented 
in the Regional Haze Rule (RHR) as codified at 40 CFR 51.308. This rule 
was promulgated on July 1, 1999 (64 FR 35713), and subsequently amended 
on July 6, 2005 (70 FR 39156), and on October 16, 2006 (70 FR 60631). 
The July 6, 2005, rule provides guidance on provisions related to BART.
    EPA proposed approval of the Minnesota regional haze plan on 
January 25, 2012 (77 FR 3681). The proposed rule described the nature 
of the regional haze problem and the statutory and regulatory 
background for EPA's review of Minnesota's regional haze plan. The 
proposed rule described the regional haze plan requirements including 
requirements for mandating BART, consultation with other states in 
establishing goals representing reasonable further progress in 
mitigating anthropogenic visibility impairment, and adoption of 
limitations as necessary to implement a long term strategy for reducing 
visibility impairment.
    EPA received comments on several elements of the Minnesota regional 
plan, including comments on the BART determinations for both the 
electric generating units (EGUs) and the taconite facilities.

II. What are EPA's responses to public comments it received?

    In response to its proposed rulemaking, EPA received comments from 
ArcelorMittal Minorca Mine, Incorporated (ArcelorMittal), Cliffs 
Natural Resources (Cliffs), Earthjustice, Fresh Energy, the Fond du Lac 
Band of Lake Superior Chippewa (Fond du Lac), National Park Service 
(NPS), Xcel Energy, and many citizens. Earthjustice commented on behalf 
of the National Parks Conservation Association (NPCA), the Minnesota 
Center for Environmental Advocacy, the Friends of the Boundary Waters 
Wilderness, Voyageurs National Park Association, and the Sierra Club. 
Fresh Energy is a Saint Paul, Minnesota based nonprofit organization 
that focuses on the development of clean energy policy. ArcelorMittal 
and Cliffs operate taconite facilities, while Xcel Energy operates EGUs 
in Minnesota. The Fond du Lac Band is a tribe based in Cloquet, 
Minnesota. The comments are included in the docket, EPA-R05-OAR-2010-
0037. The following discussion provides a summary of the comments and 
provides EPA's responses.
    Comment: Several commenters, including Earthjustice, Fond du Lac, 
and Fresh Energy, urged that EPA not allow participation in the Cross-
State Air Pollution Rule (CSAPR) to serve as a substitute for meeting 
the requirements for source-by-source BART for EGUs. These commenters 
believe that reliance on CSAPR fails to meet the CAA requirements for 
BART, and have asserted that EPA's determination that CSAPR is better 
than BART is flawed both as a national rule and as applied to 
Minnesota.
    Response: EPA disagrees with the commenters. The requirements for a 
BART alternative program, specific to trading programs in 40 CFR 
51.308(e)(2), state that ``such an emissions trading program or other 
alternative measure must achieve greater reasonable progress than would 
be achieved through the installation and operation of BART.'' EPA has 
also completed an analysis and proposed CSAPR as an alternative to BART 
for EGUs located in the CSAPR states, which include Minnesota (76 FR 
82219, December 30, 2011). In finalizing that rule on May 30, 2012, EPA 
responded to similar comments in the context of that rulemaking.
    Comment: Several commenters stated that the emissions controls for 
the EGUs are inadequate and that EPA should require stricter emission 
limits.
    Response: In a final rule signed on May 30, 2012, EPA finalized its

[[Page 34802]]

determination that CSAPR is an alternative program to source-specific 
BART for EGUs. This finding allows states to substitute participation 
in the CSAPR program for source-specific BART. Minnesota has elected to 
use CSAPR as an alternative to BART for sulfur dioxide (SO2) 
and oxides of nitrogen (NOX) emissions from its subject 
EGUs, as it is allowed to do. EPA is approving the CSAPR as an 
alternative means of satisfying the BART requirement for pertinent 
pollutants for Minnesota's EGUs.
    Comment: Several commenters considered the emissions controls 
required for the taconite facilities to be inadequate and urged EPA to 
require stricter emission limits.
    Response: Since proposing approval of Minnesota's regional haze 
plan, including the BART limits for taconite facilities, EPA has 
learned of control technology with the potential for further emission 
reductions from taconite facilities. EPA is now in the process of 
determining new BART emission limits for the BART-subject units at the 
taconite facilities. Therefore, EPA is deferring action on the proposed 
BART emission limits for the taconite facilities while proceeding with 
final approval of the other plan elements.
    Comment: EPA received comments from a substantial number of 
citizens urging that EPA protect the air quality at Boundary Waters 
Canoe Wilderness, Isle Royale National Park, and Voyageurs National 
Park.
    Response: EPA is committed to the goal of the regional haze 
program, that is, to achieve natural visibility conditions at mandatory 
Federal Class I areas by 2064. EPA is acting on the Minnesota regional 
haze plan for the first implementation period, which extends through 
July 31, 2018. Subsequent implementation periods are each for 
approximately 10 years. Future emission reductions will be evaluated by 
Minnesota and EPA during the midcourse review of Minnesota's regional 
haze plan and in future implementation periods. These further emission 
reductions in the future will result in better air quality. Minnesota 
has already developed its Northeast Minnesota Plan, which sets a target 
for the combined NOX and SO2 emissions in a six 
county area not to exceed 66,894 tons per year through 2018.
    Comment: Earthjustice commented that the Sherco plant has been 
certified to impair visibility by the Department of Interior. Sherco is 
among the biggest contributors to visibility impairment in the state. 
The commenter believes that EPA needs to establish BART limits for 
Sherco that comply with Federal requirements.
    Response: RAVI involves separate requirements from the requirements 
for regional haze, to be met on a different timetable. In a separate 
action, which will be subject to public notice and comment, EPA will 
respond to the RAVI certification for Sherco. See the discussion on 
planned EPA actions in Section III.
    Comment: A citizen commenter stated that EPA should not approve a 
plan that is not acceptable to the Federal land managers (FLMs). EPA 
should give due weight to the views of the FLMs.
    Response: EPA has provided multiple opportunities for consultation 
on the Minnesota regional haze plan with the FLMs, and has evaluated 
and responded to, FLM comments on the draft plan, the final plan, and 
our proposed approval. EPA has given careful consideration to the 
comments from the FLMs on the Minnesota regional haze plan. EPA has 
agreed with many of the comments made by the FLMs and, correspondingly, 
has worked with the state to make appropriate revisions to the SIP. 
Nevertheless, final responsibility for approving or disapproving the 
plan solely belongs to EPA.
    Comment: Earthjustice, Cliffs, ArcelorMittal, and several citizens 
commented that EPA could not have adequately considered public comments 
made to Minnesota during the comment period for its regional haze plan 
supplement as EPA issued its proposed rule prior to the state 
finalizing the supplement. Plainly, according to Earthjustice, the 
public comment period was not considered meaningful by Minnesota given 
that it had already decided to submit the supplement to EPA and EPA had 
already proposed approval, thereby frustrating the very goal of public 
process.
    Response: As stated in the proposed rule, EPA proposed to approve 
Minnesota's SIP addressing regional haze for the first implementation 
period provided it adopted and submitted administrative orders 
consistent with its proposed orders. Minnesota submitted its regional 
haze plan supplement on May 8, 2012, with the final administrative 
orders. The state had a public comment period prior to finalizing its 
supplement. EPA also held a public comment period on the proposed rule. 
EPA uses the process, known as parallel processing, when a final action 
is warranted on a more expedited schedule than would be achieved if EPA 
waits for the state to finalize its submission. The criteria for 
parallel processing are given in section 2.3 of appendix V to 40 CFR 
part 51. Further discussion of this procedure is provided in the 
rulemaking promulgating appendix V, published in final on February 16, 
1990, at 55 FR 5824. In this approach, EPA applies a premise that the 
final state submission will be sufficiently similar to the draft 
submission such that no significant issues are expected to arise in the 
final submission that were not included in EPA's proposed action on the 
draft submission. In cases where this premise holds true, the public 
has adequate opportunity to comment on the pertinent issues, and a more 
efficient and more expeditious rulemaking is achieved. In cases where 
this premise does not hold true, EPA will issue a subsequent proposed 
rule to solicit comment on issues that it did not anticipate in its 
initial proposed action. By this means, everyone has an opportunity to 
comment on pertinent issues, as mandated under Federal law. In the 
specific case of the Minnesota regional haze plan, based on comments 
received on the proposed rule, EPA has changed what it is approving in 
the final rule. Thus, this process did not preclude EPA from receiving 
new information that affected its final action. Further, Minnesota 
supplemented the regional plan it submitted on December 30, 2009. The 
supplement updated the BART determinations for the EGUs and taconite 
facilities as well as the Northeast Minnesota Plan. All other elements 
of the regional haze plan have not been changed since being finalized 
in December 2009.
    Comment: The Fond du Lac tribe and several citizens commented on 
plans to expand certain existing taconite facilities in northeastern 
Minnesota. New taconite facilities are also being planned in 
northeastern Minnesota. The commenters noted that the proximity of the 
state's six taconite facilities to Class I areas, along with the 
magnitude of their emissions of haze-causing pollutants and the 
potential new sources, makes northeastern Minnesota an area of concern 
with regard to visibility.
    Response: EPA is approving the Northeast Minnesota Plan as part of 
the Minnesota regional haze plan. The Northeast Minnesota Plan is 
written to restrict the total combined SO2 and 
NOX emissions from a six county area. Minnesota will 
consider the Northeast Minnesota Plan emission targets before it issues 
permits for new and expanding sources. There are also best available 
control technology requirements for new or expanding sources (that 
exceed certain emissions criteria) to ensure sources use the 
appropriate emission

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control technology. Minnesota will submit an updated regional haze plan 
for each approximately 10-year implementation period. These plans will 
include state updates to its long term strategy to plan and implement 
visibility protection. Further tracking of changes in visibility over 
time at its Class I areas will be provided in midcourse reviews 
required during each 10-year progress review. EPA is confident that the 
state's Northeast Minnesota Plan, the requirements on new sources, and 
the mandated updates to the regional haze plan will adequately address 
potential visibility impairment from new or expanded sources.
    Comment: Earthjustice commented that EPA should issue a Minnesota 
regional haze plan that ensures clean air in the Boundary Water Canoe 
Wilderness Area and Isle Royale and Voyageurs National Parks. 
Earthjustice believes that EPA should not approve the state's plan and 
should promulgate a replacement plan that more fully improves 
visibility.
    Response: EPA's evaluation of the Minnesota regional haze plan led 
to the conclusion that many plan elements can be approved in accordance 
with the requirements of the RHR, and thus EPA has finalized its 
approval of those elements in this rule. As noted, EPA is not acting on 
the BART emission limits for taconite facilities. EPA is evaluating the 
appropriate emission controls for the taconite facilities. Once that is 
determined, EPA will go through a public notice and comment rulemaking 
on the BART emission limits for taconite facilities. When those BART 
emission limits are finalized, that will complete approval of the 
regional haze plan for the first implementation period.
    Comment: Earthjustice commented that Minnesota has failed to 
demonstrate that it is unreasonable to achieve the Uniform Rate of 
Progress (URP). Minnesota will not attain natural visibility by 2064. 
Minnesota has proposed a reasonable progress goal (RPG) that will 
attain natural visibility conditions in Boundary Waters in 2093 and in 
Voyageurs in 2177. The state will consider the reductions that would be 
necessary to achieve the URP and demonstrate why such reductions are 
unreasonable.
    Response: EPA's Reasonable Progress Guidance states that the URP is 
not a presumptive target for the RPG. The state followed the proper 
approach in setting its RPGs through 2018. Minnesota considered the 
four factors established in section 169A of the CAA and in EPA's RHR at 
40 CFR 51.308(d)(1)(i)(A). The factors are considered when selecting 
the RPGs for the best and worst days for each Class I area. Minnesota 
considered the costs of compliance, the time needed for compliance, the 
energy and non-air quality environmental impacts, and the remaining 
useful life of the facility. Minnesota also investigated additional 
control options. It investigated additional SO2 and 
NOX control on EGUs, SO2 and NOX 
control on industrial boilers, NOX control from turbines, 
and mobile source NOX reductions. The visibility improvement 
at issue here is the visibility improvement for the first 
implementation period, which extends until July 31, 2018. New control 
programs in the future that reduce emissions may be implemented, which 
would hasten visibility improvement and possibly yield an earlier year 
to achieve natural conditions. Minnesota will include any additional 
control measures it finds reasonable along with any additional measures 
implemented by contributing states in the next implementation period. 
For the first implementation period, EPA finds adequate Minnesota's 
assessment of reasonable measures for its long term strategy.
    Comment: Earthjustice commented that Minnesota's 2009 source-
specific BART determinations are wholly inadequate, because Minnesota 
failed to engage in a proper five-factor analysis as required by the 
BART guidance. The BART guidance provides a methodology that assures a 
careful and detailed analysis of the criteria as well as consistency 
within the regional haze program. Further, Earthjustice made specific 
comments on the BART determinations for the North Shore Mining--Silver 
Bay, Sherco, Minnesota Power--Taconite Harbor, Minnesota Power--
Boswell, and Rochester--Silver Lake.
    Response: Minnesota has elected in its supplement to use CSAPR 
participation in place of the source-specific BART determinations 
submitted in 2009, supplemented by the submission of limits for Sherco. 
EPA has determined in a final rule signed on May 30, 2012, that CSAPR 
is an alternative program to source-specific BART. Therefore, it is 
acceptable for Minnesota to substitute participation in the CSAPR 
trading programs for source-specific BART determinations it had 
originally submitted for the EGUs. Thus, aside from the limits for 
Sherco, the original BART determinations for the EGUs are thus replaced 
and no longer at issue. As for Sherco, EPA in this rulemaking is not 
evaluating whether the submitted limits would represent BART on a 
source-specific basis. Instead, EPA views the limits for Sherco as an 
enhancement that make the Minnesota's submission more stringent than it 
would be if it simply relied on CSAPR to address EGU BART requirements. 
EPA notes that while this finding applies to BART requirements with 
respect to regional haze, EPA is separately evaluating the RAVI BART 
requirement as it applies to Sherco. EPA will consider the comments on 
the BART determination for Sherco during this process.
    Comment: Earthjustice commented that the taconite facilities in 
Northern Minnesota, due to their discrete location and the size of this 
industry, have not been subject to many of the control requirements 
that have been imposed on other industrial sectors, such as power 
plants, cement kilns, or refineries. The taconite industry is 
responsible for a significant share of visibility impairment in 
Boundary Waters and Voyageurs, due to their proximity to the Class I 
areas and high NOX and SO2 emissions. 
Earthjustice commented that these facilities should be subject to 
adequate BART determinations and controls, and that neither Minnesota's 
2009 regional haze plan submission nor the plan supplement provide for 
valid BART determinations that will result in any real reductions in 
pollution coming from taconite facilities.
    Earthjustice further commented that ``Minnesota has not done proper 
BART analyses for the taconite facilities and therefore the emission 
limits require no real pollution reductions and do not satisfy BART 
requirements.'' Earthjustice further asserted that Minnesota failed to 
conduct an adequate BART determination and rejected potential control 
technologies without an adequate explanation. Earthjustice commented 
that selective catalytic reduction (SCR) must be considered for 
controlling NOX at taconite facilities and that low 
NOX burners must be considered the absolute minimum 
NOX control at taconite facilities.
    Response: In response to this and other similar comments, EPA is 
reevaluating the emission controls that are warranted to satisfy the 
BART requirements at the taconite facilities in Michigan and Minnesota.
    Comment: Earthjustice commented that because Minnesota calculated 
emission limits at a 99% confidence limit, on a 30-day rolling average, 
it is unlikely that pollution reduction will be achieved.
    Response: EPA's reevaluation of the taconite facility emission 
limits will include a reassessment of appropriate

[[Page 34804]]

statistics to use in determining the appropriate limits.
    Comment: Earthjustice echoed comments made by the NPS to EPA that 
the taconite facilities are major causes of visibility impairment in 
several Class I areas. Earthjustice (as well as NPS) further commented 
that US Steel recently installed modern emission monitoring systems and 
has proposed to install, or has already installed, emission controls 
for SO2, NOX, and mercury. Data from US Steel's 
Minntac facility demonstrate that low NOX burners are 
economically achieving 70% reductions of NOX at the 
facility. In its comments, Earthjustice encouraged Minnesota and EPA to 
apply this data to require taconite facilities to meet lower emission 
limits that reflect the capabilities of available technology.
    Response: In light of this comment and related new information, EPA 
is reviewing the control technology proposed for the taconite 
facilities. EPA is also studying potential controls for each facility. 
Once this review is complete, EPA will propose a rule with the 
appropriate controls for those units of taconite facilities that are 
subject to BART. Thus, EPA is not taking final action on the taconite 
BART limits of the Minnesota regional haze plan.
    Comment: Earthjustice commented that it does not agree that CSAPR 
is better than source-specific BART in Minnesota. Earthjustice 
commented that the U.S. Forest Service analysis (January 13, 2012 
letter) shows that the predicted effect of CSAPR in 2014 is an increase 
in emissions over 2012 actual emissions and above what Minnesota 
proposed as source-specific BART and what FLMs proposed as source-
specific BART. Earthjustice asserts that source-specific BART to be far 
superior to CSAPR.
    Response: This comment pertains to a separate rulemaking where EPA 
proposed CSAPR as an alternative program to source-specific BART for 
EGUS in the CSAPR region. The rulemaking was made on May 30, 2012. A 
complete response to this and similar comments is provided in that rule 
and the associated response to comments document.
    Comment: In its comments, Xcel Energy agrees with EPA's conclusion 
that, if implemented, CSAPR will achieve greater environmental 
improvement than BART. Based on the emission reductions already 
achieved on Xcel's units, including emission controls installed on 
Sherco Units 1 and 2, and the broad reductions that will be achieved if 
CSAPR is implemented in Minnesota, Xcel Energy concludes that 
compliance with CSAPR is superior to unit specific requirements under 
section 169A. Nonetheless, because of the uncertain status of EPA's 
rulemakings and challenges to the CSAPR, Xcel Energy believes it is 
premature to rely solely on CSAPR for meeting BART requirement in 
Minnesota. In its comments, Xcel Energy urged Minnesota and EPA to 
eliminate the risks associated with one or more of these rules not 
proceeding by approving both the source-specific BART determinations 
and the BART alternative compliance option. If the alternative option 
could not go forward for any reason, the Minnesota regional haze plan 
would still contain the source-specific BART limits that source could 
use to satisfy their BART obligations without requiring Minnesota and 
EPA to undertake further SIP revisions. Xcel Energy asserts that 
Minnesota's BART determination is fully approvable, because Minnesota's 
December 2009 determination for Sherco Units 1 and 2 fully satisfies 
all applicable BART requirements. Xcel Energy believes that the BART 
determination for these units should be retained.
    Response: EPA proposed approving CSAPR participation as a BART 
alternative for SO2 and NOX emissions from EGUs. 
Minnesota requested in its supplement to the regional haze plan to use 
the CSAPR participation as an alternative to the previously submitted 
source specific BART determination for EGUs. Thus, EPA did not propose 
approving source-specific BART determinations for the EGUs. EPA 
nevertheless believes that it can take final action to approve the new 
limits for Sherco units 1 and 2, as set in the May 2, 2012, 
administrative order, as a SIP strengthening measure. First, EPA 
received numerous comments urging substantial tightening of the limits 
for this plant, and even the source requested EPA approval of the 
tightened emission limits. In that respect, this final action may be 
considered to be in response to public comments. Second, EPA's action 
reflects a limited evaluation of the administrative order, evaluating 
only whether approving the order would result in a more stringent SIP. 
Although the order includes a statement that the state and the company 
find the limits to represent BART, EPA has not evaluated whether these 
limits would represent BART on a source-specific basis. EPA is 
expressly not rulemaking on this question. While the administrative 
order that EPA is approving states the opinion of Xcel Energy and 
Minnesota that the limits represent BART, EPA's approval of the 
administrative order should not be construed as rendering any EPA 
opinion as to whether the limits would satisfy BART on a source-
specific basis. Third, EPA intends to act in the future concerning the 
BART requirements that apply to Sherco as it has been certified as a 
source of RAVI. Rulemaking on that matter will provide an opportunity 
for public comment on the appropriate limits for Sherco.
    Comment: Xcel Energy commented on its Metropolitan Emission 
Reduction Program projects, toward which Xcel Energy has invested one 
billion dollars to modernize and reduce emissions from three coal-fired 
generating stations, reducing NOX and SO2 
emissions from those plants by approximately 90%. Xcel Energy's 
customers are paying for these reductions and the reductions are key to 
environmental progress in Minnesota. Xcel Energy further commented that 
it has installed the pollution controls for NOX indicated by 
Minnesota's BART determination for Sherco. Furthermore, Xcel Energy is 
moving forward with the upgrades to its scrubbers to reduce 
SO2 emissions from Sherco. Xcel Energy asserts that these 
projects achieve substantial improvements in visibility.
    Response: Reductions in NOX and SO2 emissions 
from Minnesota EGUs will aid the state in improving visibility. The 
emission reductions will also provide health benefits resulting from 
the improved air quality. EPA acknowledges the emission reductions 
resulting from these investments and EPA is approving the limits 
submitted by Minnesota as strengthening the SIP. Nevertheless, EPA 
plans further rulemaking to address whether this plant has addressed 
its RAVI obligations.
    Comment: In its comments, Xcel Energy asserts that it relied on 
EPA's statements in the proposed rule that requirements of the RAVI 
regulations, potentially applicable to Sherco, are not being addressed 
in the proposed rule. Xcel Energy has reviewed the RAVI regulations and 
seeks to reserve the right to comment to EPA on the interpretation of 
the RAVI requirements. Xcel Energy also noted that RAVI involves 
different analyses and applies different BART guidelines. Further, Xcel 
Energy commented that given that almost ten years have passed since the 
modeling baseline was developed for the Minnesota regional haze plan 
and emissions have declined significantly in the interim, EPA will need 
to commence a new RAVI analysis and implementation planning process for 
Minnesota.

[[Page 34805]]

    Response: EPA has decided to address the RAVI BART emission 
requirements for Sherco separately from the regional haze program 
elements. EPA will offer a comment period during the Sherco RAVI BART 
rulemaking. Xcel Energy and other interested parties will be able to 
comment on the RAVI BART determination for Sherco at that time. During 
subsequent rulemaking on RAVI, EPA will take steps to solicit any 
further information that Xcel Energy wishes to provide for purposes of 
determining BART under RAVI.
    Comment: In its comments, ArcelorMittal expresses its concern that 
EPA published its January 25, 2010, proposed rule before Minnesota had 
completed its public comment period and Citizens' Board meeting on the 
regional haze plan supplement.
    Response: EPA's rulemaking is premised on Minnesota submitting a 
final supplement that is sufficiently similar to its proposed 
supplement such that the proposed rule provides adequate notice for 
comments. In fact, the final supplement does not propose any new 
issues, and therefore, EPA believes that its rulemaking on Minnesota's 
plan provided sufficient opportunity for public comment on the relevant 
issues to merit EPA granting final approval with respect to most SIP 
elements without requiring an amended proposed rule. Note, however, 
that on the issues most likely of concern to ArcelorMittal, that is 
BART for taconite plants, EPA plans further rulemaking with further 
opportunity for ArcelorMittal and other interested parties to comment.
    Comment: ArcelorMittal commented that it worked extensively with 
Minnesota to gather the data necessary to propose appropriate BART 
limits for the taconite industry. ArcelorMittal commented that there is 
still significant work to be done to generate appropriate numeric BART 
limits for the taconite industry. It urged EPA to postpone action on 
Minnesota's SIP to give the state more time to fully evaluate the 
appropriate emission limits for the taconite industry and to extend the 
Federal comment period to allow a reasonable period of time for the 
public to comment.
    Response: EPA agrees that more effort is needed to set apposite 
BART limits for the taconite facilities. EPA is studying potential 
controls for each taconite facility. Once this review is complete, EPA 
will propose a rule requiring the appropriate controls for the units 
subject to BART at the taconite facilities. There will be an 
opportunity for public comment during the rulemaking process.
    Comment: Cliffs commented that it has worked extensively with 
Minnesota for the purpose of developing BART limits for the taconite 
industry. Cliffs commented that although Minnesota has identified BART 
determinations, developed and implemented administrative orders to 
gather emission information, and has proposed numeric emission limits, 
there is still significant work to be done to generate appropriate 
numeric limits for the taconite industry. Cliffs requested that 
Minnesota receive an opportunity to complete its SIP process before EPA 
proposed a Federal implementation plan (FIP) for applicable facilities 
in the taconite industry in Minnesota.
    Response: EPA is evaluating the BART determinations for the 
taconite facilities in light of new information. EPA agrees that 
considerable work remains in determining the correct BART limits. EPA 
will continue to work with Minnesota in determining the correct limits. 
Once that is resolved, EPA and Minnesota will select the appropriate 
course of action for setting the final BART limits for taconite 
facilities.
    Comment: Cliffs commented that it is inappropriate to approve 
Minnesota's SIP before all public comments have been submitted and 
considered, and asserts that EPA offered no indication as to how this 
parallel processing can comply with the procedural requirements of the 
CAA, the Administrative Procedures Act, and Minnesota law.
    Response: Appendix V to 40 CFR part 51 provides relevant guidance 
on the completeness of SIP submittals. Section 2.3 of this appendix 
outlines the criteria for parallel processing. Further discussion of 
this procedure is provided in the rulemaking promulgating appendix V, 
published in final on February 16, 1990, at 55 FR 5824. That rulemaking 
addresses in more detail how parallel processing is consistent with the 
CAA and the Administrative Procedures Act. In the parallel process, EPA 
presumes that the final state submission will be sufficiently similar 
to the draft submission such that no significant issues would be 
expected to arise in the final submission that had not already been 
raised in the proposed rule. Where the premise is correct, the public 
has adequate opportunity to comment on the pertinent issues, and a more 
efficient and more expeditious rulemaking is achieved. Where the 
premise is not correct, EPA will issue a subsequent proposed rule to 
solicit comment on those issues that were not included in the initial 
proposed action. By this process, commenters are provided an 
opportunity to comment on all pertinent issues, as mandated under 
Federal law.
    In this particular case, EPA believed that the circumstances 
warranted parallel processing. EPA anticipated a final state regional 
haze plan supplement similar to the proposed supplement, such that a 
parallel processing approach would provide the public with an 
opportunity for comment on the pertinent issues. EPA followed this 
process in order to expedite action on Minnesota's plan. However, 
several of the comments that EPA received have led EPA to believe that 
more effective emission control at taconite plants is warranted. EPA 
intends to issue another proposed rule on emission limits for taconite 
plants to provide the public the opportunity to comment on EPA's 
revised views regarding taconite facility emission controls. Therefore, 
the commenter's concern about having an adequate opportunity to comment 
on EPA's proposed action on a final state submission is fully 
addressed.
    Comment: In its comments, Cliffs asserts that the numeric limits 
that were included in the proposed Administrative Orders for the 
Cliffs' facilities in Minnesota's supplement were erroneously derived 
and do not reflect the application of BART. Cliffs asserts that 
alternate product lines, fuel flexibility, and other considerations 
must be included in developing numeric limits that Cliffs will be 
required to meet on a continuous basis.
    Response: EPA is considering new information on the BART emission 
limits for taconite facilities. EPA will issue a subsequent proposed 
rule before taking final action on the emission limits for taconite 
facilities. EPA will consider information from Cliffs regarding its 
taconite facilities before taking final action.
    Comment: In its comment letter, Cliffs states as follows,

    ``Minnesota is clearly under pressure from EPA to rush the SIP 
submission to the detriment of Cliffs and the rest of Minnesota's 
taconite industry. Rather than wait for Minnesota's SIP to be 
complete, EPA is proposing the highly unusual step of conditionally 
approving Minnesota's SIP before Minnesota has had a chance to 
gather all necessary data, let alone finalize its SIP. EPA should 
take all necessary steps to relax its own negotiated deadlines to 
relieve the pressure on Minnesota, so that the collaborative process 
that has brought us this far is not scuttled by an unfortunate and 
arbitrary rush to codify numeric limits before they have completed 
the critical public review process with adequate time and resources 
for reasoned consideration of those comments.''


[[Page 34806]]


    Response: The July 1, 1999 RHR (64 FR 35714) required states to 
submit a regional haze plan by December 17, 2007. However, many states 
still submitted regional haze plans late, including Minnesota, which 
submitted its plan on December 30, 2009. Therefore, the taconite 
industry clearly had sufficient time to work with Minnesota in setting 
appropriate BART limits. Nevertheless, comments on the proposed rule 
have yielded information indicating that greater control of taconite 
facilities is feasible and warranted. Consistent with the commenter's 
recommendation, EPA has negotiated additional time to perform a review 
of pollution control options for taconite facilities. EPA will issue 
another proposed rule before taking final action on emission limits for 
the taconite industry. This process will provide an adequate 
opportunity to review any information that the commenter provides EPA.

III. What is EPA's plan to address RAVI BART for Sherco?

    On October 21, 2009, the Department of Interior certified that a 
portion of the visibility impairment in Isle Royale National Park and 
Voyageurs National Park is caused by emissions from Sherco, and thus 
certified that Sherco causes RAVI at these Class I areas. The RAVI 
requirements that were due prior to this certification were addressed 
by a Federally promulgated plan because Minnesota did not submit a plan 
addressing these requirements. See 40 CFR 52.1236. In its notice of 
proposed rulemaking, EPA stated its intention to act on RAVI 
requirements in separate rulemaking action. EPA is continuing to defer 
action in response to this certification of RAVI for Sherco.
    EPA's final rule, signed on May 30, 2012, finding that CSAPR 
addresses pertinent EGU BART requirements predominantly addresses BART 
as a requirement for regional haze plans but also includes limited 
discussion of BART as a requirement for RAVI sources. In light of the 
fact that the pertinent notice of proposed rulemaking did not request 
comment on the interplay of the RAVI requirements in 40 CFR 51.302-306 
with the requirements of the RHR and because EPA had not proposed any 
revisions to the applicable regulatory text, EPA did not adopt any 
clarifying interpretations of the applicable rules in that rulemaking. 
As a result, neither that final rule nor this final action on the 
regional haze SIP for Minnesota alters the authority of a FLM to 
certify RAVI nor the obligation of states (or EPA) to respond to a RAVI 
certification under 40 CFR part 51 subpart P (Protection of 
Visibility). EPA expects at a later date to clarify the scope of the 
RAVI requirements through a rule amendment, general guidance, or action 
on a SIP or FIP in the context of a specific RAVI case, such as that of 
Sherco. Whatever the form, we intend to provide an opportunity for 
public comment before applying a new interpretation.
    EPA, in fact, intends to conduct further rulemaking regarding RAVI 
BART for Sherco within the next few months. EPA expects that this 
rulemaking will address the particular circumstances for Sherco. This 
rulemaking may also discuss the general criteria and considerations 
that apply in determining RAVI BART as compared to BART for regional 
haze purposes. Of note here is a letter sent on June 6, 2011, from 
Douglas Aburano, Chief of the Control Strategies Section of EPA Region 
5. This letter states that to the extent that source-specific BART is 
required, the available evidence suggests that source-specific BART for 
this facility would include installation and operation of SCR of 
NOX emissions. The contemplated rulemaking regarding RAVI 
BART for Sherco will provide full opportunity for public review of both 
the general issues regarding the relationship between BART for RAVI 
purposes and BART for regional haze purposes, as well as the 
particular, current facts regarding the circumstances at Sherco.
    Xcel Energy commented on EPA's proposal for this final rule that if 
EPA concluded that source-specific BART was necessary and that if 
stricter limits than those submitted by the state (reflecting 
combustion controls) were required, Xcel Energy requested the 
opportunity to evaluate alternative strategies to achieve the emission 
reductions needed to satisfy such a BART requirement. Under this 
scenario, EPA would honor this request and would conduct discussions 
with the state and with Xcel Energy to assure both that the 
environmental objectives of the applicable visibility regulations are 
achieved and that alternate approaches allowed by these regulations are 
fully considered.

IV. What action is EPA taking?

    EPA is approving Minnesota's regional haze plan as satisfying the 
applicable requirements in 40 CFR 51.308, except for BART emission 
limits for the taconite facilities. These requirements include 
identifying affected Class I areas, calculating the baseline and 
natural visibility, establishing RPGs, mandating BART emission 
reductions for the five subject to BART EGUs (in this case through 
participation in CSAPR), adopting a long term strategy for making 
reasonable progress toward visibility goals, providing a monitoring 
strategy, and consulting with other states and the FLMs before adopting 
its regional haze plan.
    EPA is deferring action on the BART emission limits for the 
taconite facilities. In the proposed rule, we stated that the taconite 
processing facilities are a small, unique industry with little known 
about potential emission controls. EPA received significant information 
about NOX controls at one of the Minnesota taconite 
facilities in comments on EPA's proposed rulemaking. EPA has elected to 
defer acting on the BART determinations for the taconite facilities 
with the other regional haze plan elements. This allows EPA time to 
evaluate properly additional potential emission controls for the 
taconite facilities. Under a schedule mandated by NPCA consent decree, 
EPA plans additional review of the taconite BART determinations leading 
to a subsequent proposed rule by July 13, 2012, and a final rule by 
November 15, 2012. Once suitable limits satisfying BART requirements 
for taconite plants are established, all requirements for the first 
implementation period for regional haze for Minnesota will be 
satisfied.
    As proposed, EPA intends to act on RAVI BART in a separate action. 
A BART determination under the RAVI is similar to, but independent from 
the BART determination made under the RHR. EPA views Minnesota's plan 
as addressing regional haze as regulated under 40 CFR 51.308 and not 
RAVI as regulated under 40 CFR 51.302 to 51.306. This rulemaking only 
addresses the regional haze requirements and does not address whether 
the plan addresses requirements that apply as a result of the 
certification of Xcel Energy's Sherco power plant as a RAVI source. 
Thus, EPA is not acting on RAVI BART for Sherco in this rule. EPA will 
address the requirements that apply based on Sherco's RAVI 
certification in a separate action. Further, while Minnesota provided 
emission limits for Sherco units 1 and 2, we are approving these limits 
solely as a SIP strengthening measure. EPA is not acting on any source-
specific BART determinations in this rule.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the

[[Page 34807]]

CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 
52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve 
state choices, provided that they meet the criteria of the CAA. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     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 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 August 13, 2012. 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 dioxide, Particulate 
matter, Reporting and recordkeeping requirements, and Sulfur oxides.

    Dated: May 30, 2012.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.


0
2. Section 52.1220 is amended by adding an entry in alphabetical order 
in the table in paragraph (d) for ``Xcel Energy--Northern States Power 
Company, Sherburne County Generating Station'' and by adding an entry 
in alphabetical order in the table in paragraph (e) for ``Regional Haze 
Plan'' to read as follows:


Sec.  52.1220  Identification of plan.

* * * * *
    (d) * * *

                                 EPA-Approved Minnesota Source-Specific Permits
----------------------------------------------------------------------------------------------------------------
                                                             State
          Name of source                Permit No.      effective date   EPA approval date         Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Xcel Energy--Northern States       Administrative             05/02/12  6/12/2012, [Insert   See Final Rule for
 Power Company, Sherburne County    Order.                               page number where    details.
 Generating Station.                                                     the document
                                                                         begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

[[Page 34808]]



                                 EPA-Approved Minnesota Nonregulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                      Applicable        State submittal
    Name of nonregulatory SIP        geographic or      date/effective     EPA approved date       Comments
            provision             nonattainment area         date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional Haze Plan..............  statewide.........  12/30/2009 and 5/8/ 6/12/2012, [Insert  Includes all
                                                       2012.               page number where   regional haze
                                                                           the document        plan elements
                                                                           begins].            except BART
                                                                                               emission
                                                                                               limitations for
                                                                                               the taconite
                                                                                               facilities.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2012-14101 Filed 6-11-12; 8:45 am]
BILLING CODE 6560-50-P


