E9-9040. Approval and Promulgation of Air Quality Implementation Plans; Minnesota

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a site-specific revision to the Minnesota sulfur dioxide (SO2) State Implementation Plan (SIP) for the Olmsted Waste to Energy Facility (OWEF), located in Rochester, Olmsted County, Minnesota. In its September 28, 2007, submittal, the Minnesota Pollution Control Agency (MPCA) requested that EPA approve certain conditions contained in OWEF's revised Federally enforceable Title V operating permit into the Minnesota SO2 SIP. The request is approvable because it satisfies the requirements of the Clean Air Act (Act). The rationale for the approval and other information are provided in this rulemaking action.

DATES:

This direct final rule will be effective June 22, 2009, unless EPA receives adverse comments by May 21, 2009. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-1045, by one of the following methods:

1. www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Fax: [phone].

4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

5. Hand Delivery: John M. Mooney, Chief, Criteria Pollutant 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 ID No. EPA-R05-OAR-2007-1045. 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 e-mail. 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 e-mail comment directly to EPA without going through www.regulations.gov your e-mail 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 and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in 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 legal holidays. We recommend that you telephone Christos Panos, Environmental Engineer, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Christos Panos, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. General Information

1. What is the Background for this Action?

2. What information did Minnesota submit, and what were its requests?

3. Why is EPA Taking this Action?

4. What is a “Title I Condition?”

II. What Action is EPA Taking?

III. Statutory and Executive Order Reviews

I. General Information

1. What is the Background for this Action?

OWEF, a municipal waste combustor facility owned by Olmsted County, is located at 301 Silver Creek Road Northeast, in Rochester, Olmsted County, Minnesota. The facility is a district heating and cooling plant as well as an electric power generating station. Energy is produced mainly through combustion of municipal solid waste in two mass burn combustion units. The other emission units are a diesel generator that provides emergency electrical power and occasional peaking capacity and an auxiliary boiler used when the waste combustor is going through maintenance. Minnesota originally submitted a Title V permit for OWEF as part of the Minnesota SO2 SIP for Olmsted County on November 4, 1998. This Title V permit contains the SO2 emission limits and operating restrictions imposed on the facility to provide for attainment and maintenance of the SO2 National Ambient Air Quality Standards (NAAQS).

2. What information did Minnesota submit, and what were its requests?

The SIP revision submitted by MPCA on September 28, 2007, consists of Minnesota Air Emission Permit No. 10900005-002, issued to OWEF on August 23, 2007, which serves as a joint Title I/Title V document. The state has requested that EPA approve only the portions of the permit cited as “Title I condition: State Implementation Plan for SO2” into the Minnesota SO2 SIP.

Minnesota held a public hearing regarding the SIP revision and the joint Title I/Title V document on August 2, 2007. No comments were received at the public meeting nor during the 30-day public comment period.

3. Why is EPA Taking this Action?

EPA is taking this action because the state's submittal for OWEF is fully approvable. The SIP revision provides for attainment and maintenance of the SO2 NAAQS and satisfies the applicable SO2 requirements of the Act.

Under current SIP conditions, waste combustor units (EU 001 and EU 002) are equipped with Continuous Emission Monitors (CEMs) to monitor SO2 and are collectively limited to 67 pounds per hour (lbs/hr) SO2 on a 24-hour block average and 154 lbs/hr on a 3-hour block average. Their combined SO2 emissions are also limited to 22.6 lbs/hr using a 365 day rolling average through a non-SIP Title I condition which is necessary to keep the source at non-major levels for SO2. The emergency diesel generator (EU 003) is limited to 48,000 gallons per year of 0.05 percent sulfur content fuel oil using a 12-month rolling sum. The auxiliary boiler (EU 004) is subject to operating restrictions when burning fuel oil and is limited to 286,000 gallons of 0.05 percent sulfur content fuel oil per year. The facility is required to retain fuel oil receipts or test for the sulfur content. The SIP also contains provisions relating to recordkeeping and the reporting of deviations from sulfur content requirements.

Requested changes to the facility include: (1) The addition of a new municipal waste combustor unit (EU 007) with a capacity of 200 tons per day, doubling the facility's total capacity; (2) the replacement of the existing 1200 kilowatt (kW) emergency diesel generator (EU 003) with a larger, 1750 kW emergency generator (EU 008); (3) the addition of a stack for the new emergency generator, raising the stack height from near ground level to about 50 feet; and, (4) the removal of the operating restriction that prevents the operation of the auxiliary boiler (EU 004) when more than one waste combustor is in operation, allowing the facility the flexibility to simultaneously operate all three combustor units and the auxiliary boiler.

The current SIP emission limits will be maintained for the existing waste combustor units (EU 001 and EU 002), but there will be additional emissions limits added to the SIP based on Federal standards in 40 CFR part 62, which will result in limited emissions of 77 parts per million (ppm) or 16.3 lbs/hour, based on a 24-hour average. The new waste combustor (EU 007) will have limited SO2 emissions in the SIP of 30 ppm by dry volume, using a 24-hour geometric average based on Federal standards found in 40 CFR part 62. The new emergency diesel generator (EU 008), primarily used for backup and shutdown purposes, will continue to be limited to 48,000 gallons per year of fuel oil using a 12-month rolling sum, and under most situations would not be used while all of the waste combustor units are in continuous operation. Finally, the auxiliary boiler (EU 004) can be fired on fuel oil or natural gas, with a limit of 286,000 gallons per year of fuel oil.

Further, since the last SIP revision to the facility, the existing waste combustor units (EU 001 and EU 002) have undergone an air pollution control retrofit project including installation of spray-dryer absorbers (SDAs) for control of SO2 emissions. The emission rates from the auxiliary boiler (EU 004) and the new emergency diesel generator (EU 008), when in operation, will decrease based on a reduction in the allowable sulfur content of the fuel to 0.0015% by weight from the current limit of 0.05% by weight. The emergency diesel generator will also now exhaust through a 50 foot stack, rather than a ground-level grate, improving pollutant dispersion.

The previous air quality dispersion modeling for the SIP, conducted in 1998, was done prior to the installation of SO2 controls on the existing waste combustor units (EU 001 and EU 002). The existing emergency diesel generator (EU 003) was modeled using “very low sulfur” (500 ppm) distillate oil, and exhausting through a ground-level grate. The auxiliary boiler (EU 004) was also modeled using very low sulfur distillate oil, resulting in various permit restrictions on the amount of distillate oil that could be fired relative to the operating state of Units 1 and 2.

Revised air dispersion modeling was conducted using the AERMOD model with Rochester meteorological data to ensure continued attainment of the SO2 NAAQS in the area. Based on the modeling results, the requested changes to the SIP for OWEF described above have significantly less impacts than currently allowed under the existing SIP. The impacts of the desired future SIP scenario, when compared to the current operating scenarios in the SIP, were approximately 50% lower for average annual emissions, between 2-7% lower for 24-hour emissions and 2-12% lower for 3-hour emissions, thereby demonstrating that emissions at OWEF will remain below the applicable SO2 NAAQS.

4. What is a “Title I Condition?”

SIP control measures were contained in permits issued to culpable sources in Minnesota until 1990 when EPA determined that limits in state-issued permits are not Federally enforceable because the permits expire. The state then issued permanent Administrative Orders to culpable sources in nonattainment areas from 1991 to February of 1996.

Minnesota's consolidated permitting regulations, approved into the Minnesota SIP on May 2, 1995 (60 FR 21447), include the term “Title I condition” which was written, in part, to satisfy EPA requirements that SIP control measures remain permanent. A “Title I condition” is defined as “any condition based on source-specific determination of ambient impacts imposed for the purposes of achieving or maintaining attainment with the national ambient air quality standard and which was part of the state implementation plan approved by EPA or submitted to the EPA pending approval under section 110 of the act * * *.” The rule also states that “Title I conditions and the permittee's obligation to comply with them, shall not expire, regardless of the expiration of the other conditions of the permit.” Further, “any title I condition shall remain in effect without regard to permit expiration or reissuance, and shall be restated in the reissued permit.”

Minnesota has also initiated using joint Title I/Title V documents as the enforceable document for imposing emission limitations and compliance requirements in SIPs. The SIP requirements in joint Title I/Title V documents submitted by MPCA are cited as “Title I conditions,” therefore ensuring that SIP requirements remain permanent and enforceable. EPA reviewed the state's procedure for using joint Title I/Title V documents to implement site-specific SIP requirements and found it to be acceptable under both titles I and V of the Act (July 3, 1997 letter from David Kee, EPA, to Michael J. Sandusky, MPCA). Further, a June 15, 2006, letter from EPA to MPCA clarifies procedures to transfer requirements from Administrative Orders to joint Title I/Title V documents.

II. What Action Is EPA Taking?

EPA is approving into the Minnesota SO2 SIP certain portions of Minnesota Air Emission Permit No. 10900005-002, issued to OWEF on August 23, 2007. Specifically, EPA is only approving into the SIP those portions of the joint Title I/Title V document cited as “Title I condition: State Implementation Plan for SO2.” In addition, EPA is removing from the Minnesota SO2 SIP all other references to Title I conditions for OWEF that are not relevant to attainment of the NAAQS.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective June 22, 2009 without further notice unless we receive relevant adverse written comments by May 21, 2009. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective June 22, 2009.

III. Statutory and Executive Order Reviews

Under the Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 Act. 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 Act; 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 Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 22, 2009. 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
• Reporting and recordkeeping requirements
• Sulfur dioxide

Dated: March 30, 2009.

Walter W. Kovalick Jr.,

Acting Regional Administrator, Region 5.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart Y—Minnesota

2. In § 52.1220 the table in paragraph (d) is amended by revising the entry for “Olmsted County, Olmsted Waste-to-Energy Facility” to read as follows:

§ 52.1220

Identification of plan.

* * * * *

(d) * * *

EPA-Approved Minnesota Source-Specific Permits

Name of source	Permit No.	State effective date	EPA approval date	Comments
*         *         *         *         *         *         *
Olmsted County, Olmsted Waste-to-Energy Facility	10900005-002	08/23/07	04/21/09, [Insert page number where the document begins]	Only conditions cited as “Title I condition: SIP for SO2.”
*         *         *         *         *         *         *

* * * * *