2015-27168. Air Plan Approval; Minnesota; Revision to Visibility Federal Implementation Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to revise the Minnesota Federal implementation plan (FIP) for visibility, to establish emission limits for Northern States Power Company's (NSP's) Sherburne County Generating Station (Sherco), pursuant to a settlement agreement. The settlement agreement, signed by representatives of EPA, NSP, and three environmental groups, was for resolution of a lawsuit filed by the environmental groups for EPA to address any contribution from Sherco to reasonably attributable visibility impairment (RAVI) that the Department of Interior (DOI) certified was occurring at Voyageurs and Isle Royale National Parks.

DATES:

Comments must be received on or before November 27, 2015.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0592, by one of the following methods:

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

2. Email: [e-mail].

3. Fax: [phone].

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 ID No. EPA-R05-OAR-2015-0592. 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 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 in www.regulations.gov or 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 John Summerhays, Environmental Scientist, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

John Summerhays, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

This supplementary information section is arranged as follows:

I. What regulations apply to RAVI?

II. What is the history and content of the Sherco settlement agreement?

III. What action is EPA taking?

IV. Statutory and Executive Order Reviews

I. What regulations apply to RAVI?

Section 169A of the Clean Air Act provides for a visibility protection program and sets forth as a national goal “the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.” ^[1] Pursuant to these statutory requirements, EPA promulgated regulations entitled “Visibility Protection” in subpart P of Title 40 of the Code of Federal Regulations (40 CFR), specifically in 40 CFR 51.300 et seq., which include separate requirements addressing RAVI and regional haze. 45 FR 80084 (December 2, 1980). The term “reasonably attributable visibility impairment” is defined in 40 CFR 51.301 to mean “visibility impairment that is caused by the emission of air pollutants from one, or a small number of sources.” These regulations at 40 CFR 51.302(c)(1) provide that “[t]he affected Federal Land Manager may certify to the State, at any time, that there exists reasonably attributable impairment of visibility in any mandatory Class I Federal area.”

The visibility regulations also provide for periodic review, and revision as appropriate, of the long-term strategy for making reasonable progress toward the visibility goals, including review and revision as appropriate within three years of receipt of certification of RAVI from a Federal land manager (FLM). 40 CFR 51.306(c). The 36 affected states were required to submit revisions to their SIPs to comply with these requirements by September 2, 1981. 40 CFR 51.302(a)(1) (1981). See 45 FR 80084, 80091.

Most states did not meet the September 2, 1981 deadline for submitting a SIP revision to address visibility protection. A number of environmental groups sued EPA, alleging that the Agency had failed to perform a nondiscretionary duty under section 110(c) of the Clean Air Act to promulgate visibility FIPs. To settle the lawsuit, EPA agreed to promulgate visibility FIPs according to a specified schedule. On July 12, 1985, EPA promulgated a FIP for the visibility monitoring strategy and new source review (NSR) requirements at 40 CFR 51.304 and 51.307. 50 FR 28544. See also 51 FR 5504 (February 13, 1986) and 51 FR 22937 (June 24, 1986). These provisions have been codified at 40 CFR 52.26, 52.27 and 52.28. On November 24, 1987, EPA continued its visibility FIP rulemaking by promulgating its plan for meeting the general visibility plan requirements and long-term strategies of 40 CFR 51.302 and 51.306. 52 FR 45132. The long-term strategy provisions have been codified at 40 CFR 52.29; the provisions specifically pertaining to Minnesota are at 40 CFR 52.1236.

In the proposed rulemaking for the general visibility plan and long-term strategy requirements, EPA addressed certifications of existing visibility impairment submitted by the FLMs. 52 FR 7802 (March 12, 1987). EPA found that the information provided by the FLMs was not adequate to enable the Agency to determine whether the impairment was traceable to a single source or small number of sources and therefore addressable under the visibility regulations. For this reason, EPA determined that the implementation plans did not need to require best available retrofit technology (BART) or other control measures at that time. EPA also acknowledged, however, that the FLMs may certify the existence of visibility impairment at any time and that the FLMs therefore might provide additional information in the future on impairment that would allow EPA to attribute it to a specific source. EPA stated that in such cases, the information regarding impairment and the need for BART or other control measures would be reviewed and assessed as part of the periodic review of the long-term visibility strategy. 52 FR 7802, 7808. EPA affirmed these determinations in its final rulemaking. 52 FR 45136 (November 24, 1987).

Based on this history, unless and until Minnesota submits a plan that EPA approves as satisfying the RAVI-related visibility planning requirements, the current plan for addressing RAVI is a Federal plan, and EPA has the authority and obligation to review the RAVI plan for Minnesota periodically and to make any necessary revisions. The adoption of the emission limits being proposed here is an element of fulfilling that responsibility.

As will be discussed below, the settlement agreement regarding Sherco provides for the adoption of specified emission limits that address DOI's concerns that led to a RAVI certification at Voyageurs and Isle Royale National Parks. Because these emission limits will address the concerns DOI raised in its RAVI certification, there is no need for us to evaluate whether Sherco is the source of the impairment in Voyageurs or Isle Royale or to determine the emission levels that would be achieved by BART if BART were necessary.

II. What is the history and content of the Sherco settlement agreement?

On October 21, 2009, DOI certified to EPA that RAVI was occurring at the Voyageurs and Isle Royale National Parks, in Northern Minnesota and Northern Michigan, respectively. DOI cited numerous results from an analysis described in Minnesota's regional haze submittal, which in DOI's view demonstrated that Sherco was the source of this RAVI.

Separately, Minnesota submitted its regional haze plan on December 30, 2009, and submitted a proposed supplemental submission on January 5, 2012. In this plan as supplemented, Minnesota proposed no emission limits for Sherco (or for other electric generating units (EGUs) in Minnesota), relying instead on Federal trading program rules known as the Transport Rule to satisfy pertinent requirements for BART.^[2] EPA proposed to approve this element of Minnesota's plan on January 25, 2012, at 77 FR 3681, but stated that this proposal did not address whether Minnesota had satisfied the requirements that applied as a result of DOI's certification of RAVI.

Minnesota submitted a final supplemental regional haze submittal on May 8, 2012. In this submittal, Minnesota submitted source-specific limits on sulfur dioxide (SO₂) and nitrogen oxides (NO_X) emissions from Sherco, which it found to represent BART. These limits applied to the stack serving Units 1 and 2, limiting SO₂ emissions to 0.12 pounds per million British Thermal Units (lbs/MMBtu) and limiting NO_X emissions to 0.15 lbs/MMBtu. EPA approved these limits as “an enhancement that make the Minnesota's submission more stringent than it would be if it simply relied on [the Transport Rule] to address” BART requirements for EGUs, thereby concluding that these limits in combination with the Transport Rule satisfied pertinent BART requirements for EGUs in the state. 77 FR 34801, 34803 (June 12, 2012). EPA took no action during that rulemaking as to whether Minnesota's plan satisfied requirements triggered by DOI's certification of RAVI.

On December 5, 2012, with subsequent amendments on March 25, 2015, the National Parks Conservation Association, Sierra Club, and the Minnesota Center for Environmental Advocacy filed a lawsuit in the U.S. District Court for the District of Minnesota seeking to compel action by EPA to address DOI's RAVI certification. On July 24, 2014, pursuant to action by the U.S. Court of Appeals for the Eighth Circuit, NSP gained standing as an intervenor in this case. These parties engaged in settlement discussions with EPA, leading to a draft settlement agreement that the parties signed on May 15, 2015. EPA published a notice soliciting comments on this settlement agreement on June 1, 2015, at 80 FR 31031. EPA received two sets of generally supportive comments, and on July 24, 2015, the Department of Justice notified the Eighth Circuit that the settlement agreement was final.

The terms of this settlement agreement require EPA to propose new SO₂ emission limits for Units 1 and 2^[3] and for Unit 3 at Sherco. Specifically, the settlement agreement requires EPA to propose an emission limit for Units 1 and 2 of 0.050 lbs/MMBtu, expressed as a rolling 30-day average. EPA anticipates that NSP will be able to meet this limit through the use of low sulfur coal and the facility's existing flue gas desulfurization equipment. The settlement agreement requires EPA to propose an emission limit for Unit 3 of 0.29 lbs/MMBtu, also expressed as a rolling 30-day average. EPA anticipates that Northern States Power will be able to meet this limit with the facility's existing flue gas desulfurization equipment and increased use of desulfurizing reagent.

The settlement agreement further states that compliance with these emission limits must be determined on the basis of data obtained by a continuous emission monitor operated in accordance with 40 CFR part 75. Compliance with the limits, expressed as limits on 30-day average emissions, must be determined by dividing the sum of the SO₂ emissions over each period of 30 successive boiler-operating days by the total heat input over that same period. The settlement agreement provides that the data used to determine compliance shall reflect any bias adjustments provided for in appendix A to 40 CFR part 75, but shall not use substituted data provided for in 40 CFR part 75 subpart D.^[4]

Finally, Paragraph 5 of the settlement agreement states that “Sherco Units 1 and 2 will achieve [its SO₂ emission limit] starting October 1, 2015, . . . and . . . Sherco Unit 3 will achieve [its SO₂ emission limit] starting June 1, 2017.” (Emphasis added). Paragraph 5 continues, “EPA agrees to propose such emission limitations . . . with a compliance date for Units 1 and 2 of October 1, 2015, and a compliance date for Unit 3 of June 1, 2017.” Attachment A to the settlement agreement states, for Units 1 and 2, “[i]nitial compliance with [the] limit shall be demonstrated no later than October 1, 2015,” and, for Unit 3, “[i]nitial compliance with [the] limit shall be demonstrated no later than June 1, 2017.”

Accordingly, under the proposed rule, the first compliance demonstration for Units 1 and 2 would be computed on October 1, 2015, using data from the immediately preceding 30 boiler-operating days. Similarly, the first compliance demonstration for Unit 3 would use data from the 30 boiler-operating days immediately preceding June 1, 2017. For example, under this proposed rule, if the boilers operate every day, the first 30-day period for which compliance at Units 1 and 2 is required is the period from September 1 to September 30, 2015, and the first 30-day period for which compliance at Unit 3 is required is May 2 to May 31, 2017.

EPA recognizes that the compliance deadline for Units 1 and 2 predates the prospective final rulemaking. Because NSP is a party to the settlement agreement, however, the company has had adequate notice that an initial demonstration of compliance with the limits for Units 1 and 2 would be required on October 1, 2015, notwithstanding provisions in the settlement agreement that would allow EPA to sign a final rulemaking as late as February 2016.

On August 11, 2015, DOI wrote to EPA regarding the settlement agreement. DOI recounted that its prior letter, dated October 21, 2009, had “identified visibility impairment at Voyageurs and Isle Royale National Parks likely attributable to [Sherco],” but noted that “a number of events have led or will lead to significant improvements in visibility at these Parks,” including the continued “trend of reducing sulfur dioxide emissions at Sherco” resulting from the settlement agreement. DOI concluded that “[a]lthough the settlement reaches a different result than the recommendation made in our [letter certifying RAVI], once implemented, the settlement achieves an outcome that addresses our visibility concerns at Voyageurs and Isle Royale National Parks.”

In light of this August 11, 2015 letter, EPA is proposing to find that the incorporation of these SO₂ emission limits into the Minnesota visibility FIP satisfies any outstanding obligation EPA has with respect to DOI's 2009 RAVI certification. Specifically, EPA believes that the emission limits obviate the need for an analysis of the magnitude or origins of visibility impairment at Voyageurs or Isle Royale or potential BART control options at Sherco. While DOI's 2009 certification expressed particular concern with Sherco's NO_X emissions, modeling in Minnesota's regional haze plan (particularly in the Sherco BART analysis) suggests that SO₂ emissions have comparable visibility impacts to NO_X at these parks. As a result, EPA anticipates that the visibility improvement that will result from the proposed SO₂ emission limits, when considered in conjunction with the SO₂ and NO_X reductions already achieved by the Minnesota regional haze SIP, will be comparable to any improvement that might have resulted from additional NO_X limits. To be clear, EPA is not proposing to find that the RAVI DOI certified in 2009 at Voyageurs or Isle Royale was attributable to emissions from Sherco, that Sherco is currently a source of RAVI, or that BART controls are necessary at Sherco. EPA is instead proposing to find that such determinations are no longer necessary in light of the significant emission reductions that will occur at Sherco as a result of the settlement agreement, which addresses the concerns DOI originally expressed in 2009.

III. What action is EPA taking?

In accordance with the settlement agreement signed on May 15, 2015, by representatives of EPA, three environmental groups, and NSP, EPA is proposing to incorporate the emission limits identified in the agreement into the Minnesota visibility FIP. Specifically, EPA is proposing the following limits:

—For stack SV001, serving Units 1 and 2, a limit on SO₂ emissions of 0.050 lbs/MMBtu, as a 30-day rolling average, determined as the ratio of pounds of emissions divided by the heat input in MMBtu, both summed over 30 successive boiler-operating days, beginning on the 30-boiler-operating-day period ending September 30, 2015. For purposes of this limit, a boiler operating day is defined as a day in which fuel is combusted in either Unit 1 or Unit 2 (or both).

—For Unit 3, a limit on SO₂ of 0.29 lbs/MMBtu, as a 30-day rolling average, also determined as the ratio of pounds of emissions divided by the heat input in MMBtu, both summed over 30 successive boiler-operating days, beginning on the 30-boiler-operating-day period ending May 31, 2017.

Additionally, in light of DOI's August 11, 2015 letter, EPA is proposing to find that the incorporation of these SO₂ emission limits into the Minnesota visibility FIP satisfies any outstanding obligation EPA has with respect to DOI's 2009 RAVI certification. EPA intends to conduct no analysis of the magnitude or origins of visibility impairment at Voyageurs or Isle Royale or review of potential BART control options at Sherco in response to this certification.

IV. Statutory and Executive Order Reviews

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

This proposed action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). As discussed in detail in section IV.C below, the proposed FIP applies to only one source. It is therefore not a rule of general applicability.

B. Paperwork Reduction Act

This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Under the Paperwork Reduction Act, a “collection of information” is defined as a requirement for “answers to . . . identical reporting or recordkeeping requirements imposed on ten or more persons. . . .” 44 U.S.C. 3502(3)(A). Because the proposed FIP applies to just one facility, the Paperwork Reduction Act does not apply. See 5 CFR 1320(c).

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this proposed action on small entities, I certify that this proposed action will not have a significant economic impact on a substantial number of small entities. EPA's proposal adds additional controls to a certain source. The Regional Haze FIP revisions that EPA is proposing here would impose Federal control requirements to resolve concerns that one power plant in Minnesota is unduly affecting visibility at two national parks. The power plant and its owners are not small entities.

D. Unfunded Mandates Reform Act (UMRA)

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, section 205 of UMRA allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Under Title II of UMRA, EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million by State, local, or Tribal governments or the private sector in any one year. In addition, this proposed rule does not contain a significant Federal intergovernmental mandate as described by section 203 of UMRA, nor does it contain any regulatory requirements that might significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has Federalism implications, 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 State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has Federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely extends an existing FIP by promulgating emission limits for one source in accordance with a settlement agreement. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.

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

Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule. However, EPA did discuss this action in a July 16, 2015, conference call with Michigan and Minnesota Tribes, and EPA invites further comment from tribes that may be interested in this action.

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

Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. EPA interprets E.O. 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the E.O. has the potential to influence the regulation. This action is not subject to E.O. 13045 because it is neither economically significant nor pertinent to an environmental health or safety risk that might have a disproportionate effect on children. However, to the extent this proposed rule will limit emissions of SO_2, the rule will have a beneficial effect on children's health by reducing air pollution.

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

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

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

Executive Order 12898 (59 FR 7629, February 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.

We have determined that this proposed rule, if finalized, will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Sulfur dioxide
• Reporting and recordkeeping requirements, visibility protection

Dated: October 9, 2015.

Susan Hedman,

Regional Administrator, Region 5.

40 CFR part 52 is proposed to be amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

2. Section 52.1236 is amended by adding paragraph (e) to read as follows:

§ 52.1236

Visibility protection.

* * * * *

(e)(1) On and after the 30-boiler-operating-day period ending on September 30, 2015, the owners and operators of the facility at 13999 Industrial Boulevard in Becker, Sherburne County, Minnesota, shall not cause or permit the emission of SO₂ from stack SV001 (serving Units 1 and 2) to exceed 0.050 lbs/MMBTU as a 30-day rolling average.

(2) On and after the 30-boiler-operating-day period ending on May 31, 2017, the owners and operators of the facility at 13999 Industrial Boulevard in Becker, Sherburne County, Minnesota, shall not cause or permit the emission of SO₂ from Unit 3 to exceed 0.29 lbs/MMBTU as a 30-day rolling average.

(3) The owners and operators of the facility at 13999 Industrial Boulevard in Becker, Sherburne County, Minnesota, shall operate continuous SO₂ emission monitoring systems in compliance with 40 CFR part 75, and the data from this emission monitoring shall be used to determine compliance with the limits in this paragraph (e).

(4) For each boiler operating day, compliance with the 30-day average limitations in paragraphs (e)(1) and (e)(2) of this section shall be determined by summing total emissions in pounds for the period consisting of the day and the preceding 29 successive boiler operating days, summing total heat input in MMBTU for the same period, and computing the ratio of these sums in lbs/MMBTU. Boiler operating day is used to mean a 24-hour period between 12 midnight and the following midnight during which any fuel is combusted at any time in the steam-generating unit. It is not necessary for fuel to be combusted the entire 24-hour period. A boiler operating day with respect to the limitation in paragraph (e)(1) of this section shall be a day in which fuel is combusted in either Unit 1 or Unit 2. Bias adjustments provided for under 40 CFR part 75 appendix A shall be applied. Substitute data provided for under 40 CFR part 75 subpart D shall not be used.

Footnotes

1.  In accordance with the mandate of section 169A(a)(2), 40 CFR part 81 subpart D (40 CFR 81.400 to 81.437) specifies the mandatory Class I Federal areas where visibility is an important value and the visibility is impaired by manmade air pollution.

2.  This proposal was consistent with a proposed finding by EPA that the Transport Rule provided better visibility protection than source-specific BART on electric generating units, and consistent with an associated proposed rule allowing states to rely on the Transport Rule in lieu of source-specific BART for these sources. This exemption applies only to NO_X and SO₂, but Minnesota found that no control was necessary to satisfy BART for other pollutants.

3.  Because Units 1 and 2 vent through a shared stack, the proposed emission limit applies to the combined emissions of these two units.

4.  The provisions of 40 CFR part 75 specify the requirements for operation and data reporting for continuous emission monitoring for facilities such as Sherco that are subject to the Acid Rain Program. Under 40 CFR part 75, such facilities must conduct periodic tests to determine whether the measurements underlying the reported emission values are biased; if the results fail to meet the criteria in 40 CFR part75 appendix A 7.6.4, reflecting sufficient underestimation to warrant adjustment, the measured results are multiplied times a bias adjustment factor computed in 40 CFR part 75 appendix A 7.6.5. For hours when the facility is operating but the emission monitor is not generating valid data, the settlement agreement specifies that data obtained by the “Missing Data Substitution Procedures” required for Acid Rain Program purposes in 40 CFR part 75 subpart D shall not be used.